Federal Court (Full Court). Should the Tribunal should have considered, in making a decision under s 501C of the Migration Act 1958 (Cth), "the consequences for Australia of taking a decision facially contrary to the central provisions of the United Nations Convention on the Rights of the Child", based on the FCAFC's decision in FAK19? Did anything in the nature of the FCA's discretionary power with respect to costs require any particular consideration of pro bono representation?
Some of the questions to the Full Court of the Federal Court (FCAFC) were as follows:
Question 1: Can it be said that the Tribunal should have considered in making a decision under s 501C of the Migration Act 1958 (Cth), "the consequences for Australia of taking a decision facially contrary to the central provisions of the United Nations Convention on the Rights of the Child", based on the FCAFC's decision in FAK19?
Question 2: If the answer to Question 1 is 'no', does it mean that "it would have been impermissible or “irrelevant” in the Peko-Wallsend sense for the Tribunal to have adverted to the child convention"?
Question 3: Was there anything in the "nature of the discretionary power with respect to costs conferred on the Court by s 43 of the Federal Court of Australia Act 1976 (Cth) which required any particular consideration of pro bono representation with respect to the exercise of the costs discretion"?
The FCAFC answered those questions as follows: