s 116(1)(e)(ii): mandatory considerations

Federal Court. In the context of s 116(1)(e)(ii), can it be said that submissions to the Tribunal, viewed as a whole, are a mandatory relevant consideration, but not every aspect of those submissions can be so described? If so, for the purpose of determining whether an aspect of those submissions is a mandatory relevant consideration, is the fundamental question the importance of that aspect to the exercise of the Tribunal’s function, which will depend on the nature of the material and the circumstances of the case?

Some of the questions to the Federal Court (FCA) were as follows:

Question 1: In the context of the exercise of the discretion under s 116(1)(e)(ii) of the Migration Act 1958 (Cth), can it be said that a person's submissions to the Tribunal, viewed as a whole, are a mandatory relevant consideration, but that not every statement in those submissions can be so described?

Question 2: For the purpose of determining whether an aspect of a submission made in the context of the exercise of the discretion under s 116(1)(e)(ii) is a mandatory relevant consideration, can it be said that the fundamental question is the importance of that aspect to the exercise of the Tribunal’s function, which will depend on the nature of the material and the circumstances of the case?

Question 3: The Appellant's father in law was the alleged victim of the appellant and grandfather of his daughter. Were the following matters sufficiently central to the Tribunal's exercise of the discretion under s 116(1)(e)(ii): "the grandfather’s desire for the appellant to have a role in his daughter’s upbringing and a meaningful relationship with her, or the more general representation that the grandfather wished for the appellant’s visa not to be cancelled so that he would not be removed from Australia"?

Question 4: If the answer to Question 3 is "yes" and the Tribunal failed to have regard to a letter written to it by the Appellant's father in law, can it be said that such failure was not material in the sense that the Tribunal in any event considered a letter from the Appellant's former wife whose content overlapped with that of the father in law's letter?

Question 5: Did the Tribunal make a jurisdictional error by failing to "appreciate the difference between whether a failure to exercise discretion to adjourn would be lawful, as opposed to whether it was preferable not to exercise the discretion to adjourn"?

The FCA answered those questions as follows:

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