Federal Court (Full Court). Is compliance with the Direction 90 achieved by focussing upon individual considerations and attributing some form of “weight” to that consideration viewed in isolation, without disclosing any process of reasoning which led from the attachment of weight to each consideration to the ultimate conclusion?
Some of the questions to the Full Court of the Federal Court (FCAFC) were as follows:
Question 1: Did Direction 90 require greater weight to be given to primary considerations unless there is some reason why that general approach should not be adopted?
Question 2: Did Direction 90 confine the decision-maker to the primary and other considerations?
Question 3: If the answer to Question 2 is 'no', does it necessarily follow that the Tribunal's task was to "evaluate whether it is appropriate for a consideration that is not a primary consideration to be given greater weight than one or more primary considerations"?
Question 4: Is compliance with the Direction 90 achieved by focussing upon individual considerations and attributing some form of “weight” to that consideration viewed in isolation, without disclosing any process of reasoning which led from the attachment of weight to each consideration to the ultimate conclusion?
Question 5: Is there a distinction between, on the one hand, how the decision maker must engage with the non-citizen's representations, as was considered in Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; 400 ALR 417 at [21]-[27] (including whether the appellant’s representations were considered, or were adequately considered), and, on the other hand, whether the requirements set out in the Direction to take into account the considerations identified in the Direction where relevant to the decision were met?
Question 6: Does s 501CA(4) of the Migration Act 1958 (Cth) involve a process of balancing the different considerations?
Question 7: Having assigned individual weight to each of the factors set out in Direction 90, the Tribunal concluded that the Direction “therefore” favours the non-revocation of the cancellation, with no express evaluation or balancing. Did the Tribunal make a jurisdictional error because it reasons given did not disclose any process of reasoning which led from the attachment of weight to each consideration to the ultimate conclusion?
The FCAFC answered those questions as follows: