Federal Court. A majority of the High Court in Plaintiff M1 at [26] cautioned about the deployment of labels such as “active intellectual process” or “proper, genuine and realistic consideration”, lest they invite merits review. Are such formulae nevertheless good law? Can it be said that, "depending on the context of such references, it is not necessarily inapt to characterise the evaluative exercise required in making a decision under s 501CA(4)(b)(ii) and applying the Direction as attracting the concept of an exercise of discretion"?
Some of the questions to the Federal Court (FCA) were as follows:
Question 1: A majority of the High Court in Plaintiff M1 at [26] cautioned about the deployment of labels such as “active intellectual process” or “proper, genuine and realistic consideration”, lest they invite merits review. Are such formulae nevertheless good law?
Question 2: Can it be said that para 9.3(1) of Direction 99, which was about the impact of the conduct of a non-citizen on victims and their family members, will ordinarily (but not necessarily) be a matter that may tend to weigh against the non-citizen?
Question 3: Can it be said that, "depending on the context of such references, it is not necessarily inapt to characterise the evaluative exercise required in making a decision under s 501CA(4)(b)(ii) and applying the Direction as attracting the concept of an exercise of discretion"?
The FCA answered those questions as follows: