Federal Court (Full Court). Can it be said that "the national interest requires an emergency, a significant threat or other circumstances involving the nation as a whole" and that "[t]he expression ‘national’ also directs attention to the interests of Australia as a whole as distinct from local or regional interests within Australia"?
Some of the questions to the Full Court of the Federal Court (FCAFC) were as follows:
Question 1: Can it be said that the 'public interest' in s 501BA of the Migration Act 1958 (Cth) "does not readily lend itself to the compartmentalisation of the considerations involved, and it would be contrary to principle for the words “in the national interest” to be given a confined meaning"?
Question 2: The FCAFC said: "Under s 501BA of the Act, the Minister must be satisfied, separately, that a non-citizen does not pass the character test and that it is in the national interest that their visa be cancelled." Can it be said that, "although the two issues are separate and must be considered severally, the matters which result in a non-citizen not passing the character test may also be taken into account by the Minister in deciding whether it is in the national interest for their visa to be cancelled"?
Question 3: If the answer to Question 2 is 'yes', is it nevertheless the case that "the matters which result in the non-citizen not passing the character test cannot automatically be treated as sufficient on their own for the Minister to be satisfied that it is in the national interest to cancel the non-citizen’s"?
Question 4: Does Minister’s power under s 501BA involve an appeal from the decision of the Tribunal, or the delegate?
Question 5: If the answer to Question 4 is 'yes', does that mean that "the Minister does not need to find any error on the part of the AAT (or the delegate)"?
Question 6: If the answer to Question 5 is 'yes', does that mean that "the Minister is not legally required to consider the reasons of the AAT (or the delegate) – let alone “rebut” the AAT’s reasons – or any particular material that was before the AAT (or the delegate), and that failure to consider those reasons or any such material could not, without more, go to jurisdiction"?
Question 7: Can it be said that, "because s 501BA(3) of the Act expressly excludes the rules of natural justice, legal unreasonableness cannot be invoked as a ground of review in a manner that seeks indirectly to confer an entitlement to procedural fairness"?
Question 8: Can it be said that an "instance of legal unreasonableness is where the Minister identifies a particular non-mandatory matter as a proper basis for disposing of a particular case but then fails to consider that matter either at all or misconstrues or misunderstands it to such an extent as to amount to a constructive failure to consider it"?
Question 9: Can it be said that "the national interest requires an emergency, a significant threat or other circumstances involving the nation as a whole" and that "[t]he expression ‘national’ also directs attention to the interests of Australia as a whole as distinct from local or regional interests within Australia"?
The FCAFC answered those questions as follows: