Ali, Ibrahim, BCR16 & Direction 75

Some of the questions to the Federal Court (FCA) were as follows:

Question 1: Should decisions of co-ordinate jurisdictions be ordinarily followed as a matter of judicial comity, although not binding?

Question 2: Should decisions of the FCAFC "be undermined by reference only to their status as in the original jurisdiction"?

Question 3: Should a later FCAFC decision, especially one made in its original jurisdiction, "follow an earlier single judge appellate authority unless it considered the earlier decision to be “plainly wrong”"?

Question 4: If the answer to Question 3 is "no", does that mean that "single judge appellate decisions should be easily departed from"?

Question 5: Should a later single judge sitting in the appellate jurisdiction of the FCA follow an earlier decision of (at least an appellate) FCAFC?

Question 6: Is it "appropriate that another judge sitting as a single judge on appeal give significant respect to any earlier single judge appellate authority (not otherwise supported by Full Court authority) and not depart from it unless convinced of error and of the need to do so, in the language of currency: that it is plainly wrong"?

Question 7: Should single judges of the FCA, whether in the original or appellate jurisdiction, "at the very least, follow a Full Court decision in the original jurisdiction unless strongly convinced that it is plainly wrong"?

Question 7: Should single judges of the FCA, whether in the original or appellate jurisdiction, "at the very least, follow a Full Court decision in the original jurisdiction unless strongly convinced that it is plainly wrong"?

Question 8: Can it be said that, "although s 501CA(4) does not impose an express obligation on a decision maker to “consider” representations made for the purpose of identifying “another reason” why the visa cancellation should be revoked, the context and purpose of the provision, together with the text which imposes a duty to invite such representations, indicate that there is a statutory obligation on the Minister to engage, in an active intellectual sense with the representations"?

Question 9: In the context of s 501CA(4) of the Migration Act 1958 (Cth), can it be said that "the significance of any particular matter raised in the representations is to be assessed by reference to the manner in which the matter is expressed"?

Question 10: Can it be said that "an implied condition for the valid exercise of a decision-maker’s powers for which a particular state of mind is required is that the state of mind be formed on a correct understanding of the law"?

Question 11: If the answer to Question 10 is "yes", is that so even for considerations taken into account by a decision-maker which are not mandatory relevant considerations? In other words, can it be said that, although the Minister may not be obliged to take into account certain considerations, once he elects to take them into account, he is bound to form the required state of mind based on a correct understanding of the law concerning such considerations?

Question 12: Can it be said that, "in a legislative scheme such as the Migration Act, and in that part of the scheme dealing with the exercise of powers which change the status of a person from a lawful to an unlawful non-citizen (or could restore the status of lawful non-citizen), a decision maker should have a correct understanding of the impact of the wider legislative scheme on the precise power being exercised"?

Question 13: At [34] and [35] of the High Court decision in Applicant S270/2019 , "their Honours appear to equate the domestic protection visa regime with the international obligations contained in treaties such as Art 33 of the Convention Relating to the Status of Refugees". Did ApplicantS270/2019 impliedly overrule the decisions of the FCAFC in Ali, Ibrahim and BCR16 according to which the Minister will make an error if he defers consideration, in the context of making decisions under s 501 and analogous provision, of any non-refoulement obligations to a future stage when the criteria for the grant of a protection visa are assessed?

Question 14: Can it be said that "Ali, Ibrahim and BCR16 are distinguishable because the nature of the power in s 501(3) is substantively different"?

Question 15: If the Minister cancels a visa under s 501(3) of the Migration Act 1958 (Cth) on the basis that it is in the national interest to do so and the former visa holder then applies for a protection visa (subclass 866), is it "difficult to see how any decision maker acting reasonably could do anything but move to refusal on a criterion such as the national interest" under cl 866.226 of Schedule 2 to the Migration Regulations 1994 (Cth)?

Question 16: If the Minister cancels a visa under s 501(3) of the Migration Act 1958 (Cth) on the basis that it is in the national interest to do so and the former visa holder then applies for a protection visa (subclass 866), does Direction 75 require decision-makers to consider the "protection" criterion in sections 36(2)(a) and (aa) before all other criteria for a protection visa?

Question 17: If the Minister cancels a visa under s 501(3) of the Migration Act 1958 (Cth) on the basis that it is in the national interest to do so and the former visa holder then applies for a protection visa (subclass 866), does Direction 75 require specific non-protection criteria such as cl 866.226 of Schedule 2 to the Migration Regulations 1994 (Cth) to be considered first?

Question 18: Does the Minister have, under s 501(3) of the Migration Act 1958 (Cth), a "residual discretion not to cancel a visa, even if the two preconditions (character and national interest) are met"?

Question 19: In the context of s 501(3) of the Migration Act 1958 (Cth), can it be said that "the question of what might happen to an individual on any removal, and what Australia’s international obligations are in relation to the removal of people from Australia, are clearly matters within the permissible range of considerations in the exercise of the power"?

Question 20: Was any potential engagement and contraventions of Australia’s non-refoulement obligations a precondition or a criterion under s 501(3) of the Migration Act 1958 (Cth)?

Question 21: In the context of s 501(3) of the Migration Act 1958 (Cth), was any potential engagement and contraventions of Australia’s non-refoulement obligations "functionally different from a delegate (let it be assumed) forming a state of satisfaction about the now statutory elements of the definition of refugee in s 5H of the Act"?

Question 22: Assuming that the answer to Question 21 is "yes" and that the same answer should be given in the context of s 501CA(4) of the Migration Act 1958 (Cth), does the Tribunal’s observation in the context of that provision that one of the respondent’s claims to non-refoulement might be "more fully explored" in a protection visa process indicate the type of error discussed in Question 21?

Question 23: Is there a conceptual difference between the consequences of potential breaches of Australia's non-refoulement obligations to the person affected by a decision of the Executive and the consequences of the same breaches to Australia?

Question 24: If the answer to Question 23 is "yes", was the Tribunal able to consider the consequences of such breaches to Australia, just as a Minister or a delegate might?

Question 25: If the answer to Question 24 is "yes", can it be said that it should be inferred that the Tribunal failed to deal with the consequences of such breaches to Australia in light of the fact that it made no express references to it and was commendably clear in other respects such as the consequences of such breaches to one of the respondents?

Question 26: If the answer to Question 25 is "yes", were the consequences to Australia of a breach of its non-refoulement obligations "a factor at the periphery of decision making under the Migration Act", with the consequence that the Tribunal's error in not considering those consequences was immaterial to its decision and therefore not jurisdictional?

Question 27: Can it be said that, for the purpose of the identification under Direction 79 of the "expectations of the Australian community", it is an "expectation of the Australian community that the Executive will act conformably with Australia’s international obligations, particularly in circumstances where its own policy indicates an intention to do so"?

Question 28: Can it be said that, "in undertaking an assessment on materiality, where there are reasonable and rational choices to be made in fact finding, it is not appropriate for the supervising court to attempt to place itself in the mind of the Tribunal, and speculate about what would or could have changed a particular Tribunal’s mind"?

The FCA answered those questions as follows: