Federal Court (Full Court). Is "the violation of international law ... intrinsically and inherently a matter of national interest, and therefore within the subject of evaluation" under s 501A(2)? If not, does this answer "create any relevant incongruity with a finding that a failure to consider those obligations in a particular case ... means that the state of satisfaction as to national interest mandated by s 501A(2)(e) has not been arrived at reasonably in the legal sense"? Does the Minister have a discretion under s 501A(2)?
Some of the questions to the Full Court of the Federal Court (FCAFC) were as follows:
Question 1: Can it be said that "the violation of international law, qua law, is intrinsically and inherently a matter of national interest, and therefore within the subject of evaluation" under s 501A(2) of the Migration Act 1958 (Cth)?
Question 2: Can it be said that, "once satisfied of each of the matters in s 501A(2)(c), (d) and (e) of the Act, the Minister had no discretion under s 501A(2)"?
Question 3: If the answer to Question 1 is 'no', does this answer "create any relevant incongruity with a finding that a failure to consider those obligations in a particular case ... means that the state of satisfaction as to national interest mandated by s 501A(2)(e) has not been arrived at reasonably in the legal sense"?
Question 4: Does the decision of the Full Court of the Federal Court in Viane v Minister for Immigration and Border Protection [2018] FCAFC 116; (2018) 263 FCR 531 dictate that, as is the case with s 501CA(4), the word "may" in s 501BA means "must"?
Question 5: Can it be said that, "to assert that it is not significant that the absence of reference to a matter in reasons, or, in this case, in a particular part of the reasons, is because although the matter was actively considered, it was considered irrelevant, is really to proceed by assuming the answer sought"?
Question 6: Can it be said that "it is not appropriate, or ordinarily appropriate, to infer that the decision-maker has made findings or drawn conclusions not referred to in the written reasons of the decision-maker"?
Question 7: Can it be "assumed that in every case weight must be given in the national interest assessment to the consequences of a breach of non-refoulement obligations"?
Question 8: Can it be said that "the character concerns enlivening the exercise of power, including the seriousness of the criminal conduct and the risk of reoffending, are matters that can weigh, and can weigh decisively, in the assessment of the national interest"?
Question 9: Can a finding "be made about the implications of Australia’s breach of its non-refoulement obligations in terms of its reputation and relations with other countries in the absence of actual evidence that such matters would be harmed"? In other words, is a court "entitled to take judicial notice of the fact that acting inconsistently with international law obligations may undermine confidence externally"?
The FCAFC answered those questions as follows: