Federal Court. Where the decision made was the only decision legally available to be made, does that constitute an exception to the rule that "the question of the materiality of the breach is an ordinary question of fact in respect of which the applicant bears the onus of proof"? For the purpose of para 14.2(1)(b) of Direction 79, was the Applicant's fianceé a member of his immediate family? Does para 8(4) of Direction 79 provide that primary considerations should invariably be given greater weight? In the context of s 501CA(4), does the materiality test call for a balancing or a binary exercise?
Some of the questions to the Federal Court (FCA) were as follows:
Question 1: Where the decision made was the only decision legally available to be made, does that constitute an exception to the rule that "the question of the materiality of the breach is an ordinary question of fact in respect of which the applicant bears the onus of proof"?
Question 2: For the purpose of para 14.2(1)(b) of Direction 79, was the Applicant's fianceé a member of his immediate family?
Question 3: Para 8(4) of Direction 79 provides that “[p]rimary consideration should generally be given greater weight than the other considerations”. Does para 8(4) provide that primary considerations should invariably be given greater weight?
Question 4: In the context of the balancing exercised called for by s 501CA(4) of the Migration Act 1958 (Cth), does the materiality test call for a balancing or a binary exercise?
The FCA answered those questions as follows: