Federal Court. By stating that Direction 110 required some actions to be taken, did the Assistant Minister proceed on the basis that he was personally required to apply the Direction, thereby making a jurisdictional error?
In personally making a decision under s 501CA(4) of the Migration Act 1958 (Cth), the Assistant Minister said as follows, in dealing with the impediments to the applicant if removed from Australia (emphasis added):
… I accept that work opportunities, remuneration, government-funded entitlements and other support in Tuvalu may be comparatively lower than in Australia, but the Direction requires consideration of what is generally available to an individual in their country of citizenship, not a comparative assessment with Australia.
The Minister said as follows, in dealing with the best interests of minor children (emphasis added):
As required by the Direction, I have treated the best interests of the [children] as a primary consideration in this context.
Some of the questions to the Federal Court (FCA) were as follows:
Question 1: Did the Minister proceed on the basis that he was required to follow or apply Direction 110, thereby making an error?
Question 2: "In the Minister’s submission, stating what the Direction requires, or required, is different from stating that the Minister was bound to follow the Direction". Does that submission amount to splitting semantic hairs?
Question 3: Can it be said that "the fact that the Minister’s Reasons follow, and do not in any respect depart from, the terms of the Direction provides some corroboration or support for the inference that otherwise flows from the Minister’s statement that he was “required” by the Direction to treat the best interests of minor children as a primary consideration, and his statement about what the Direction “requires” in the context of considering impediments"?
Question 4: Can it be said that, "if the Minister was simply following the Direction, but understood that he was not bound by it, it might reasonably be expected that he would have said so"?
Question 5: Does the fact that the Departmental submission to the Minister in respect of the Applicant's case did not state or advise the Minister that he was not bound by the Direction support the view that the Minister saw himself as bound by the Direction?
Question 6: If the answer to Question 1 is 'yes', can it be said that the error was immaterial, as the Minister treated the impediments to removal in the Applicant's favour anyway? In other words, is the assessment of materiality in this case binary, instead of one of degree?
The FCA answered those questions as follows: