Federal Court (Full Court). Section 116(1)(e) called for the consideration of future possibilities which proceeded by drawing inferences from known facts and "reasonable conjecture within the parameters set by the historical facts". To these considerations should the following ones be added as legitimate bases for the assessment process: "common sense, a reasonable appreciation of human experience, and personal knowledge or specialised knowledge of the Minister or his or her Department"?
Section 133C(3) of the Migration Act 1958 (Cth) provided as follows:
(3) The Minister may cancel a visa held by a person if:
(a) the Minister is satisfied that a ground for cancelling the visa under section 116 exists; and
(b) the Minister is satisfied that it would be in the public interest to cancel the visa.
Some of the questions to the Full Court of the Federal Court (FCAFC) were as follows:
Question 1: Did s 133C(3) contain a residual discretion by the use of the terms 'may cancel a visa'?
Question 2: Did s 116(1) contain a residual discretion by the use of the terms 'may cancel a visa'?
Question 3: Prior to the Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth), s 116(1)(e) read as follows: “The presence of the visa holder in Australia is, or would be, a risk to” the matters as presently set out in paras (i) and (ii). Can it be said that "the introduction by the above Amendment Act of the words “or may be” and “or might be” clearly lowered the requisite level or threshold of satisfaction to that of a possibility"?
Question 4: In relation to the new iteration of s 116(1)(e), can it be said that "the word “may” and the word “might” do not contain different levels of possibility; they relate to different contexts: “may” if the visa holder is presently in the migration zone (relevantly Australia); “might” if he or she were to come into the migration zone in the future"?
Question 5: Section 116(1)(e) called for "consideration of what may or might happen in the future by reference to the presence of the visa holder in Australia", described as a "consideration of future possibilities which “proceeds by drawing inferences from known facts”" and as based on "reasonable conjecture within the parameters set by the historical facts". To these considerations should the following ones be added as legitimate bases for the assessment process: "common sense, a reasonable appreciation of human experience, and personal knowledge or specialised knowledge of the Minister or his or her Department"?
Question 6: Can it be said that the term 'good order' in s 116(1)(e) has "a public order element, that is to say it requires there to be an element of a risk that the person’s presence in Australia might be disruptive to the proper administration or observance of the law in Australia or might create difficulties or public disruption in relation to the values, balance and equilibrium of Australian society. It involves something in the nature of unsettling public actions or activities"?
Question 7: In order for a person's presence in Australia to represent a risk to the good order of the Australian community or a segment of the Australian community, is it "necessary that the visa holder himself or herself take action to create the risk"?
Question 8: Can it be said that, in the context of s 116(1)(e), a "statutory obligation arose to consider what risks may arise if the holder were removed from, or not present in, Australia"?
Question 9: If the answer to Question 8 is 'no', does that answer "foreclose the possibility that not to do so in a given circumstance would or might be irrational or unreasonable"?
Question 10: If the answer to Question 9 is 'no', does that mean that, "if the Minister chose to examine the risk in the posited counterfactual, he could not do so"?
Question 11: In determining whether an administrative decision is legally unreasonable where there was no obligation to give reasons, is some weight to be given to the lack of such an obligation?
The FCAFC answered those questions as follows: