Tribunal bound by government’s view on seriousness of crime?

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

Question 1: Did Direction 99 purport to limit the considerations to which a decision-maker may have regard in exercising the discretion under s 501CA(4) of the Migration Act 1958 (Cth)? In other words, were the considerations referred to in Direction 99 exhaustive?

Question 2: Did Direction require that a decision-maker must invariably take into account the considerations that are specified in it?

Question 3: Direction 99 purport to dictate the weight to be given by decision-makers to particular considerations?

Question 4: Was the requirement for the decision-maker to consider the factors enumerated in paragraphs 8.1(2), 8.1.1(1) and 8.1.2 of Direction 99 directed towards assessment of the impact of those factors on the protection of the Australian community from criminal or other serious conduct by the non-citizen?

Question 5: Para 8.1(2)(a) of Direction required decision-makers to consider the "nature and seriousness" of the non-citizen’s conduct to date. Should the phrase “nature and seriousness” be understood as a composite phrase, in that the nature of criminal offending may affect its seriousness, and the seriousness of such offending may affect its nature?

Question 6: Must the “risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct”, described in paragraphs 8.1(2) and 8.1.1(2), be considered in light of the decision-maker’s assessment of, “the nature and seriousness of the non-citizen’s conduct to date”, under paragraph 8.1.1(1)?

Question 7: Will the nature and seriousness of past offending be plainly relevant to assessment of the harm that could result from further offending by the non-citizen in the future?

Question 8: Para 8.1.1(1)(a)(ii) of Direction 99 required decision-makers to consider that crimes against women "are viewed very seriously by the Australian Government". Were the circumstances in which those crimes were committed irrelevant to engagement of that provision, with the result that, "once the Tribunal determined that some of the appellant’s crimes were in those categories, it was required to have regard to the fact that those types of crimes, “are viewed very seriously by the Australian Government and the Australian community”"?

Question 9: If the answer to Question 8 is 'yes', was the Tribunal nevertheless required to otherwise consider the appellant’s submission concerning lack of premeditation and targeting in its application of paragraphs 8.1.1(1) and 8.1.2, in that the view of the Australian Government and the Australian community was only one of the factors bearing upon the Tribunal’s assessment of “the nature and seriousness of the non-citizen’s conduct”? In other words, can it be said that para 8.1.1(1)(a) did not require the Tribunal to characterise offending as “very serious”?

Question 10: The plurality of the High Court said at [14] about the materiality of an error: "The question in these cases is whether the decision that was in fact made could, not would, “realistically” have been different had there been no error. “Realistic” is used to distinguish the assessment of the possibility of a different outcome from one where the possibility is fanciful or improbable. Though the applicant must satisfy the court that the threshold of materiality is met in order to establish that the error is jurisdictional, meeting that threshold is not demanding or onerous." Does the term "improbable" in that passage mean that "a court may embark upon a determination of whether on the balance of probabilities the decision could not have been different", or a departure from an undemanding threshold or a low bar?

Question 11: Does the assessment of the materiality test require that, "first, an applicant must identify an error and establish that the identified error could realistically have resulted in a different decision; and, second, if that is established, the respondent must then establish that compliance with the condition could not have made a difference to the decision"?

Question 12: Although it is open based on Plaintiff M1 to a decision-maker to defer assessment of a claim that a non-citizen is owed non-refoulement obligations to the Protection visa process, may it "nevertheless be necessary for the decision-maker to take account of facts alleged to underpin a claim that non-refoulement obligations are owed where those facts are relied upon as another basis for revocation of the cancellation decision"?

The FCAFC answered those questions as follows: