Does para 9.3(1) of Direction 90 exclude consideration of impact of removal?

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

Question 1: Did s 501CA(4) of the Migration Act 1958 (Cth) confer "a wide discretionary power on a decision-maker to revoke a decision to cancel a visa held by a non-citizen if satisfied that there is “another reason” why that decision should be revoked"?

Question 2: Does the decision-maker undertake the assessment under s 501CA(4)(b)(ii) of whether there is "another reason" to revoke the cancellation by reference to the case made by the representations of the former visa holder?

Question 3: Does Direction 90 limit the considerations to which a decision-maker may have regard in exercising the discretion under s 501CA(4)?

Question 4: Can it be said that Direction 90 does not require that a decision-maker must invariably take into account the considerations it specifies, in that what is required under para 6 is that a decision-maker take into account the considerations identified in paras 8 and 9 'where relevant' to the decision?

Question 5: Is the legislature taken to intend that the discretionary power under s 501CA(4)(b)(ii) will be exercised reasonably?

Question 6: Can it be said that a decision-maker’s opinion as to the relevance of the considerations in paras 8 and 9 of Direction 90 must be formed reasonably and rationally having regard to the statutory scheme and the representations and other material before the decision-maker?

Question 7: Paragraph 9.2(1)(a) of Direction 90 required that the Tribunal “must consider the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards, taking into account…the non-citizen’s age and health”. Was the issue under this paragraph not merely whether the non-citizen had a health condition, but whether any health condition posed an impediment of that kind?

Question 8: Would the word “health” in the phrase “age and health” in para 9.2(1)(a) "ordinarily be understood to mean any aspect of a person’s physical wellbeing"?

Question 9: Was the word "health" also capable of encompassing a person’s mental wellbeing?

Question 10: Where it is reasonably open to determine that a condition falls within that expression, is the question as to whether it does or does not one of fact for the decision-maker?

Question 11: Can it be said that "para 9.2(1)(a) [of Direction 90] requires that there must be medical certification in order for a non-citizen’s “health” to be taken into account under that paragraph"?

Question 12: Can it be said that, "[w]ithin ordinary parlance, a person’s status as having a history of substance abuse, especially where there was evidence from which it may be concluded that there was a real risk of relapse into misuse of substances to such an extent that it would be an impediment to a person being able to establish and maintain basic living standards, is aspect of that person’s overall health"?

Question 13: Can it be said that, "whether evidence of a history of substance abuse clearly raises an issue as to whether a person has a health condition and whether it may pose an impediment to their ability to establish and maintain basic living standards is very much a factual question which depends upon the content of the material before the decision-maker"?

Question 14: Did the latter part of para 9.3(1) of Direction 90, commencing with the word “where”, indicate that the paragraph only has application where the non-citizen, “has been afforded procedural fairness”?

Question 15: Can it be said that para 9.3(1) of Direction 90 applied "only to the impact on a victim of the perpetrator remaining in Australia, and excluding consideration by a decision-maker of the impact upon a victim of an offender being removed from Australia"?

The FCAFC answered those questions as follows: