Federal Court (Full Court). Para 8.1.1(1)(a)(iii) of Direction 90 said that decision-makers must have regard to the fact that family violence is viewed very seriously by the Australian Government. Did para 8.1.1(1)(a)(iii) bind decision-makers to view family as very serious?
Para 8.1.1(1)(a)(iii) of Direction 90 read:
(1) In considering the nature and seriousness of the non-citizen's criminal offending or other conduct to date, decision-makers must have regard to the following:
a) without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
...
(iii) acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
Para 8.2(1) of Direction 90 read:
The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government's concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen (see paragraph (3) below).
Some of the questions to the Full Court of the Federal Court (FCAFC) were as follows:
Question 1: Did the invitation at para 8.2(1) of Direction 90 for the decision-maker to consider the seriousness of the family violence engaged in by the non-citizen imply a degree or gradation of seriousness?
Question 2: Did para 8.1.1(1)(a)(iii) bind decision-makers to view family violence as very serious?
The FCAFC answered those questions as follows: