Does Viane detract from Omar?

Federal Court. In Viane, the HCA said: "No part of the statutory power conferred by s 501CA of the Act obliges the Minister to make actual findings of fact as an adjudication of all material claims made by an applicant". Can the word "all" in that passage be explained by the proposition that "it is only where a matter advanced is supported by factual material and it is necessary to make factual findings in order consider the matter advanced that there is a need to consider that factual material"?

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

Question 1: If a person's visa is cancelled under s 501(3A) of the Migration Act 1958 (Cth) because of a failure to satisfy a particular limb of the character test in s 501(6), is it possible for s 501CA(4)(b)(i) not to be satisfied because of a different limb of the character test?

Question 2: In the context of considering under s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth) whether there is 'another reason' to revoke the mandatory cancellation of a visa, cl 8.3(4)(d) of Direction 90 provided that decision-makers should consider "the likely effect that any separation from the non-citizen would have on the child, taking into account the child's or the non-citizen's ability to maintain contact in other ways". Can it be said that, "even though it will be the person seeking to have his visa cancelled who will be advancing the representations, the terms of Direction 90 require consideration of matters from the perspective of the child rather than the parent"?

Question 3: If the answer to Question 2 is 'yes', does it follow that "the Tribunal's obligation to conduct its review having regard to the interests of any children may require it to make an obvious inquiry about a critical fact not addressed in the representations made by the parent"?

Question 4: Could the Tribunal give no weight to the best interests of minor children?

Question 5: If the answer to Question 4 is 'yes', does this mean that the Tribunal "was free to simply put such matters to one side without any real deliberation as to what facts should be accepted and as to their possible significance"?

Question 6: Can it be said that "a claim that a statutory decision-maker has not given proper, genuine and realistic consideration to a particular matter is a contention that the nature and extent of deliberation undertaken by the Tribunal in respect of the matter was insufficient"?

Question 7: In Viane, the High Court said as follows: "No part of the statutory power conferred by s 501CA of the Act obliges the Minister to make actual findings of fact as an adjudication of all material claims made by an applicant". Can the word "all" in that passage be explained by the proposition that "it is only where a matter advanced is supported by factual material and it is necessary to make factual findings in order consider the matter advanced that there is a need to consider that factual material"?

Question 8: Did cl 8.3(4)(d) of Direction 90 "give the interests of children the character of a mandatory relevant consideration"?

Question 9: When considering whether the Tribunal's deliberations were of the requisite kind (i.e. whether they disclose proper, genuine and realistic consideration to a particular matter), is it important to have in mind the nature of the deliberative power entrusted to the Tribunal, the significance of the subject matter of the power and the characteristics of the repository of the power?

Question 10: Is in many instances an understanding by a court of the merits of a matter that was before an administrative decision-maker necessary in order for the court to evaluate whether the required kind of deliberation was undertaken?

Question 11: The Tribunal's reasons were very long (101 pages), reciting in dozens of pages the Applicant's evidence, but without indicating whether the evidence was accepted or rejected. Are the formal recitations of the kind expressed by the Tribunal a substitute for reasoned findings? In other words, is it "sufficient for the Tribunal to say that it has considered matters closely and extensively"?

Question 12: If the answer to Question 11 is 'no', is this "an instance where a failure to refer to a matter might provide the foundation for an inference that the Tribunal considered the factual matters not to be material"?

Question 13: The Tribunal found that the Applicant's separation from his children "would have a significant and enduring negative effect on [the children]". In order to give proper, genuine and realistic consideration to the best interests of the children, was it enough for the Tribunal to state that separation would have such a negative effect, without assessing the "varying degrees in which that effect might be significant and enduring"?

Question 14: Can it be said that "because the Tribunal had concluded that the best interests of the children weighed strongly in favour of revocation and had expressed its conclusion in extreme terms, the Tribunal had given more or less maximum weighting to the best interests of the boys" and therefore that, in effect, "no greater weighting could be given to the factor"?

The FCA answered those questions as follows:

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