Cl 8(4) of Direction 79 interpreted

Federal Court. Did cl 8(4) of Direction 79 require an inquiry as to whether: "one or more of the other considerations should be treated as being a primary consideration"; or one of the other considerations can or should be "afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply"? Could a primary consideration outweigh other primary considerations even if the case is not outside the "circumstances that generally apply", whatever that may mean?

For the purpose of s 501CA(4) of the Migration Act 1958 (Cth), cl 8 of Direction 79 read as follows:

8.    Taking the relevant considerations into account

(1)    Decision-makers must take into account the primary and other considerations relevant to the individual case. …

(2)    In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.

(3)    Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.

(4)    Primary considerations should generally be given greater weight than the other considerations.

(5)    One or more primary considerations may outweigh other primary considerations.

In Suleiman, the Federal Court (FCA) interpreted the equivalent clause in Direction 65, as follows (emphasis added):

23. The use by the Tribunal of the term ‘secondary’ indicates that the ‘other considerations’ are always of lesser importance. However, Direction 65 makes clear that an evaluation is required in each case as to the weight to be given to the ‘other considerations’ (including non‑refoulement obligations). It requires both primary and other considerations to be given ‘appropriate weight’. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains ‘generally’ they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are ‘normally’ given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both ‘primary’ and ‘other considerations’. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.

Here, the Tribunal's reasons included the following passage (emphasis added):

307.    Primary considerations should generally be given greater weight than the other considerations (cl.8(3)). In accordance with Suleiman, to give greater weight to one primary consideration, or to treat one or more of the other considerations as a primary consideration, it will be outside of the circumstances that generally apply. The Tribunal does not consider the circumstances of this case as outside those that generally apply.

Some of the questions to the FCA were as follows:

Question 1: Is it immediately apparent why cl 8(4) requires an "inquiry as to whether one or more of the other considerations should be treated as being a primary consideration"?

Question 2: Is it difficult to see how cl 8(4) requires an inquiry as to whether one of the other considerations can or should be "afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply"?

Question 3: Did the Tribunal, by the last sentence of [307], consider that a primary considerations can outweigh other primary considerations even if the case is not outside the "circumstances that generally apply", whatever that may mean?

Question 4: Could a primary consideration outweigh other primary considerations even if the case is not outside the "circumstances that generally apply", whatever that may mean?

The FCA answered those questions as follows:

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