Federal Court (Full Court). Does the High Court's decision in Plaintiff M1 detract from the proposition that certain matters in Direction 90 were mandatory considerations which had to be considered even if no representations were made about them, lest the decision-maker make a jurisdictional error? Does the assessment of the materiality of an error made under s 501CA(4) of the Migration Act 1958 (Cth) involve a balancing, instead of binary, exercise?
Some of the questions to the Full Court of the Federal Court (FCAFC) were as follows:
Question 1: Does the High Court's decision in Plaintiff M1 detract from the proposition that certain matters in Direction 90 were mandatory considerations which had to be considered even if no representations were made about them, lest the decision-maker make a jurisdictional error?
Question 2: Can it be said that, even though the Tribunal weighed the best interests of some minor children heavily in favour of the non-citizen under s 501CA(4) of the Migration Act 1958 (Cth), the Tribunal's error in assessing such interests was material and thus jurisdictional, as it could have ascribed even more weight to that consideration had it not made the error? In other words, does the assessment of the materiality of an error made under s 501CA(4) involve a balancing, instead of binary, exercise?
The FCAFC answered those questions as follows: