Federal Court. If the Minister finds under s 501CA(4) that "the broader Australian community’s general expectations about non-citizens, as articulated in [Direction 90], apply in this case", but then, "without any explanation and before anything else ... immediately states that he “attributed this consideration significant weight against revocation of the cancellation of [the Applicant's] visa”", will he fail to intellectually engaged with the question of the weight to ascribe to those expectations?
Some of the questions to the Federal Court (FCA) were as follows:
Question 1: Can it be said that "the discretion in s 501CA(4) is sufficiently broad that the Minister may legitimately take into account his personal assessment of the expectations of the Australian community, separate from any consideration of the risk that a person poses to the community"?
Question 2: Does the fact that there is an overlap between different considerations under Direction suggest any unreasonableness or irrationality in having regard to one of them as a separate factor? In other words, would that consideration give rise to impermissible double counting?
Question 3: Do the expectations of the Australian community in cl 8.4 of Direction 90 apply regardless of whether the non-citizen poses a measurable risk of causing harm?
Question 4: Is it irrational to consider community expectations without considering all the circumstances of a case?
Question 5: Is a failure to consider a submission as to the proper meaning of community expectations itself "another reason" to revoke cancellation of a visa for the purposes of s 501CA(4)?
Question 6: "FYBR establishes that the community expectations consideration does not incorporate all the countervailing factors from the person’s specific circumstances. Instead, these individual factors are brought to account when deciding what relative weight to give community expectations". If the Minister finds that "the broader Australian community’s general expectations about non-citizens, as articulated in the Direction, apply in this case", but then, "without any explanation and before anything else ... immediately states that he “attributed this consideration significant weight against revocation of the cancellation of [the Applicant's] visa”", will he have failed to intellectually engaged with the question of the weight to ascribe to those expectations?
The FCA answered those questions as follows: