Federal Court (Full Court). If a court treats the materiality threshold other than being very low, does it run the risk of engaging in impermissible merits review?
The questions to the Full Court of the Federal Court (FCAFC) were as follows:
Question 1: If decision-makers "note" a particular claim, have they necessarily considered it?
Question 2: For the purposes of s 501CA(4) of the Migration Act 1958 (Cth), do the representations made by a person seeking the revocation of the mandatory cancellation of a visa assume a primary and material role, irrespective of whether they engage directly with one or more of the matters set out in a ministerial direction issued under s 499, such as Direction No 79?
Question 3: In determining under s 501CA(4) whether the Appellant's relatives would support him if the mandatory cancellation of his visa were not revoked and he were sent back to his home country, assuming there may be a universal, stereotypical assumption based on "ordinary human experience" that family members would support one another, was the Assistant Minister equipped (in the absence of evidence) to assess what “ordinary human experience” in Sudan or South Sudan might look like?
Question 4: Is it possible to have an active intellectual engagement with what is likely to happen to a person on return if the country to which the person is to be returned is not identified?
Question 5: What steps must decision-makers take when determining under s 501CA(4) whether it would be safe for a person to be returned to their home country?
Question 6: If the findings made by a decision-maker under s 501CA(4) are unclear or ambiguous, can it be concluded that the decision-maker failed to perform the statutory task required of it?
Question 7: Can it be said that the possibility of the lodgement of a protection visa application by the Appellant did not excuse the Assistant Minister from assessing whether non-revocation would result in removal or indefinite detention, as the prospects of him being granted such visa were extremely slim, given the Assistant Minister's decision and the Appellant's criminal record?
Question 8: If a court treats the materiality threshold other than being very low, does it run the risk of engaging in impermissible merits review?
The FCAFC answered those questions as follows:
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