CWY20 & ENT19 impliedly overruled or distinguishable?

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

Question 1: Are breaches (or purported breaches) of international law a mandatory relevant consideration for the purpose of the determination under s 501A(2)(e) of whether refusal to grant a visa is in the national interest?

Question 2: Can it be said that the Appellant had not squarely raised in his submissions to the Minister that to detain him indefinitely or for a lengthy period was not in the national interest by breaching Australia's international obligations and damaging Australia's reputation, in circumstances where: "in his statement to the Minister the appellant did not identify the specific international obligations which he said Australia would breach if he were detained indefinitely or for a lengthy period, or why his indefinite or prolonged detention would result in a breach of those obligations"; and the international reputation submission was made by the appellant to the Minister as one of a list of matters 'concerning the discretionary aspect of the s 501A(2) power'"?

Question 3: Is the Appellant's case distinguishable from CWY20 and ENT19 in that s 197C(3), which had not been enacted by the time those cases were decided but which applied to the Appellant, was such that there was no prospect of Australia refouling him in breach of its non-refoulement obligations?

Question 4: Was the proposition that indefinite detention would constitute a breach of Australia’s international obligations a merely arguable consequence of the Minister’s decision, instead of an inevitable or certain legal consequence?

Question 5: If the answer to Question 4 is 'yes', does it necessarily follow that "there is no legal unreasonableness or irrationality in the Minister, when addressing the national interest criterion, failing to consider arguable breaches of international law (which indeed were not even raised by the appellant before the Minister)"?

Question 6: If the answer to Question 5 is 'yes', does it necessarily follow that this case distinguishable from CWY20 in that, "in CWY20 the Full Court held that the Acting Minister, acting rationally, could not have concluded that Australia’s breach of international non-refoulement obligations was immaterial to his assessment of Australia’s national interest in circumstances where that breach was an inevitable legal consequence of the Acting Minister’s decision and was an accepted consequence by the Acting Minister"?

Question 7: If the answer to Question 5 is 'yes', does it necessarily follow that "ENT19 is distinguishable from the present case because this is not a case where a breach of international legal obligations is a necessary legal consequence of the Minister’s decision"?

Question 8: Can it be said that, if a Court's "statement was apparently an assumption rather than a finding and, even though it is arguably part of the ratio of the decision, it is not therefore binding on later courts"?

Question 9: If the answer to Question 8 is 'yes', does it follow that ENT19 did not decide the question of whether inevitable indefinite detention, unless for a lawful purpose, could put Australia in breach of its international obligations?

Question 10: Can the reasonableness of an exercise of power only be judged based on facts in existence at the time of making a decision?

Question 11: Was it legally unreasonable for the Minister to find that a different Minister in the future could exercise the non-compellable powers in ss 195A and 197AB in the exercise of his discretion in s 501A(2)(e)?

Question 12: If the answer to Question 11 is 'no', is this because the Minister be taken to have known that Ministers may change or change their minds?

Question 13: Can it be said that "the primary judge failed to comply with s 144(4) of the Evidence Act because her Honour did not provide the appellant with any opportunity to make submissions relevant to the finding that “Ministers may change” and “Ministers may change their minds”"?

Question 14: If the answer to question is 'yes', is it impossible to "imagine any different finding of fact having been made if the appellant had been expressly invited to make submissions or adduce evidence on the point", as "elections, changes of government and new ministerial appointments are undeniable features of Australia’s constitutional and political landscape"?

Question 15: Upon an appeal, it is simply to point to a legal or procedural error in the judgment below on errors involving provisions such as s 144(4) of the Evidence Act?

Question 16: Has CWY20 been implicitly overruled by Plaintiff M1?

Question 17: Is CWY20 plainly wrong?

The FCAFC answered those questions as follows: