Federal Court: DHA refused visa under s 501(1). AAT remitted matter for reconsideration with a direction that the discretion under s 501(1) be exercised in the applicant’s favour. Minister personally set aside AAT's decision under s 501A(2) in the national interest. Minister's exercise of discretion relied in part on erroneous finding that Applicant entered AU on a false identity. In Lu, the risk of harm posed by an affected person to AU community based on the correct criminal record was a mandatory relevant consideration in the exercise of the discretion under s 501A(2). In Gbojueh, risk of harm was mandatory also in the context of determining the national interest. Should Lu be interpreted as only applying to erroneous findings in relation to a non-citizen's criminal record and thus be distinguished? Did Minister's satisfaction about the national interest involve a jurisdictional fact?
The questions to the Federal Court (FCA) were as follows:
Question 1: Should Lu be interpreted as only applying to erroneous findings in relation to a non-citizen's criminal record and thus be distinguished?
Question 2: Did the Minister's satisfaction about the national interest involve a jurisdictional fact?
Question 3: Did "the Minister’s failure to consider the interests of the applicant’s two minor children in determining that it was in the national interest to refuse the applicant a visa, and deferring consideration of that matter to the assessment of the residual discretion" mean that the Minister erroneously treated the national interest as necessarily excluding the best interest of minor children? Or did that failure merely raise an inference that "the Minister regarded the best interests of the [children] as not bearing upon his assessment of the national interest in the particular circumstances of the [case]"?
Question 4: Was the best interest of minor children a mandatory relevant consideration for the purposes of determining the national interest under s 501A(2)?
Question 5: Is there a bifurcation of the national interest and the residual discretion under s 501A(2)?
The FCA answered those questions as follows:
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