Federal Court. In considering Direction No 79 for the purposes of s 501CA(4), should decision-makers consider the consequences of any breaches of Australia’s obligations under international law not only to the non-citizen, but also to Australia? We summarise the answers to this and several other questions.
The questions to the Federal Court (FCA) were as follows:
Question 1: In considering Direction No 79 for the purposes of s 501CA(4) of the Migration Act 1958 (Cth), should decision-makers consider the consequences of any breach of Australia’s obligations under international law not only to the non-citizen, but also to Australia?
Question 2: Could the deferral of the question of the consequences of any breach of Australia’s obligations under international law to the non-citizen or Australia be justified on the basis that the removal of the Applicant from Australia would not be an “immediate consequence” of the decision under s 501CA(4) merely because the Applicant could apply for a protection visa?
Question 3: Can it be said that, although SZMTA stands for the proposition that a judicial review applicant bears the onus of proving that an error made by an administrative decision-maker is material (and thus jurisdictional), that onus only arises if the respondent raises materiality as an issue?
Question 4: Does the fact that a decision-maker, in reaching an overall finding considering multiple factors against an applicant, considered a particular factor to go in favour of that applicant, any errors made in assessing that particular finding are necessarily not material to the outcome of the decision? In other words, in the context of a provision which calls for a balancing exercise, does the materiality test involve a binary, as opposed to a balancing, exercise?
Question 5: Was the Tribunal entitled to place more weight on the evidence given by the Applicant under cross-examination to that given in his pre-prepared written statement?
The FCA answered those questions as follows: