s 501A(2)(e): non-refoulement obligations a mandatory consideration?

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

Question 1: In assessing under s 501A(2) of the Migration Act 1958 (Cth) whether to set aside a decision of the Tribunal and refuse to grant the Applicant a protection visa, the Minister assessed whether it was in the national interest to do so. The assessment of the national interest expressly involved the Minister’s findings about the violent nature and seriousness of the Applicant’s past offending and the risk to the Australian community posed by the likelihood of his reoffending. Although the Minister considered that the effect of setting aside the Tribunal's decision would be to return the Applicant to the country where he faced prosecution, that consideration was not expressly made in the context of assessing whether refoulement of the Applicant and thus breaching Australia's non-refoulement international obligations informed the national interest. Did the Minister fail to consider whether breaching Australia's non-refoulement international obligations informed the national interest?

Question 2: Is the discretion under s 501A(2) broad and evaluative?

Question 3: Is the determination of what constitutes the national interest largely a political question?

Question 4: Can it be said that, "in relation to the determination of the national interest, it is not possible to imply into the Migration Act some obligation on the Minister’s part to consider specific factors personal to the visa holder, such as the circumstances surrounding the offences they have committed"?

Question 5: In assessing the Minister's finding under s 501A(2)(e) that refusal of a visa was in the national interest, can it be said that the Minister "may be found to have erred where s/he misdirecting her/himself in law, or where the Minister failed to consider matters s/he is required to consider, or where the Minister took into account irrelevant matters, or where the decision is legally unreasonable, albeit that that may be difficult to demonstrate where the Minister is required to be satisfied of a matter of opinion, policy or taste"?

Question 6: Can it be said that, "to focus on lesser criminality would not be reasonable or demonstrate a correct understanding of the law in forming the satisfaction required under s 510A(2)(e)"?

Question 7: In determining under s 510A(2)(e) whether refusal is in the national interest, is the Minister forming an evaluative judgment, as opposed to exercising a discretionary power?

Question 8: Will considerable weight "usually be given to the assessment of the national interest when that matter comes to be weighed against other considerations which are relevant in the later stage of the decision-making process, being the residual discretion"?

Question 9: Are the "legal requirements for the Minister to act reasonably and to have a correct understanding of the Act when forming the state of satisfaction required by s 501A(2)(e) ... separate from any issue of mandatory relevant considerations"?

Question 10: "In determining whether or not he or she is satisfied for the purposes of s 501A(2)(e) that the refusal of a visa is in the national interest, [must] the Minister ... address those representations on the subject of the national interest"?

Question 11: "In determining whether or not he or she is satisfied for the purposes of s 501A(2)(e) that the refusal of a visa is in the national interest, [must] the Minister ... address ... any relevant component of the national interest which arises squarely on the material before the Minister"?

Question 12: Can it be said that "question whether or not [Australian international non-refoulement] obligations have been enlivened will necessarily involve consideration of the circumstances pertaining to a particular individual"?

Question 13: Do the Full Court’s remarks in BFW20 at [149] apply equally to decisions of the Minister under s 501A(2)?

Question 14: Can it be said that "grounds of review, such as legal unreasonableness and failing to act on a correct understanding of the law, may overlap"?

Question 15: Can it be said that "the “national interest” is a broad and often indeterminate test, until the circumstances of a particular case come into focus"?

Question 16: Can it be said that "the fact that Australia’s international reputation and standing could have been considered (or in other cases had been considered) as a factor relevant to the national interest (see CWY20 at [121]-[123]) does not elevate that factor to a mandatory consideration for the purposes of s 501A(2)(e), at least not in all cases"?

Question 17: Could the Minister " have given adequately informed or realistic consideration to the determination of the national interest or the weighing process which he purported to undertake in R[118] and R[138], nor can he have determined to exercise his powers on a proper understanding of the law, if...: (1) The Minister gave no consideration to the policy reflected in the solemn assurances and the content of Direction 79 at 12.1(2) ...; (2) The discussion in the submission for decision did not draw the Minister’s attention to the basis of BFM16’s protection claims as encapsulated in the findings made in the 2017 AAT decision; and (3) The Minister did not adequately recognise the nature of those claims in his Reasons which form the basis of the conclusion that Australia owes international non-refoulement obligations"?

Question 18: Did the power conferred on the Minister by s 501A(2) impose an obligation on the Minister to consider the practical consequences for the Applicant of being returned to the country where he faced persecution?

Question 19: In Hands, Allsop CJ held as follows: "where decisions might have devastating consequences visited upon people, the obligation of real consideration of the circumstances of the people affected must be approached confronting what is being done to people. This obligation and the expression of its performance is not a place for decisional checklists or formulaic expression". Do those remarks "apply with equal force with respect to determination [under s 501A(2)] of the national interest and the exercise of the discretion enlivened by that consideration"?

Question 20: Did s 501A(2)(e) require the Minister to consider that there may be consequences for the national interest of breaching the Convention Relating to the Status of Refugees, as amended by the Protocol Relating to the Status of Refugees, and the solemn assurances contained in the Explanatory Memorandum, the second reading speech for the Bill that came to be enacted as the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 and cl 12.1(2) of Direction No 79 (to the effect that Australia would not return a person to a country where they face persecution)?

The FCA answered those questions as follows: