Federal Court (Full Court). Was the Full Court's decision in CWY20 wrong in that "no finding should be made about the implications of Australia’s breach of a treaty obligation in the absence of evidence"? Was CWY20 in any event impliedly overruled by the High Court's decision in Plaintiff M1, in that "the Executive cannot, by compelling Australia’s entry into a treaty, alter the content of Australian domestic law so as to grant rights or impose obligations, such that the law enacted by Parliament is added to, undermined or varied, whether directly or indirectly"?
Some of the questions to the Full Court of the Federal Court (FCAFC) were as follows:
Question 1: Does s 501BA(2) of the Migration Act 1958 (Cth) confer a residual discretion upon the Minister to be exercised after the requirements in s 501BA(2)(a) and (b) are satisfied?
Question 2: Does s 501CA(4) of the Migration Act 1958 (Cth) confer a residual discretion on the Minister, to be exercised once the subjective jurisdictional facts upon which it is pre-conditioned are satisfied?
Question 3: Was the Full Court's decision in CWY20 wrong in that "no finding should be made about the implications of Australia’s breach of a treaty obligation in the absence of evidence"?
Question 4: Was CWY20 in any event impliedly overruled by the High Court's decision in Plaintiff M1, in that "the Executive cannot, by compelling Australia’s entry into a treaty, alter the content of Australian domestic law so as to grant rights or impose obligations, such that the law enacted by Parliament is added to, undermined or varied, whether directly or indirectly"?
The FCAFC answered those questions as follows: