Federal Court. Did para 8.2 of Direction 110 (about the government viewing family violence very seriously) dictate the weight to be given to the consideration of the family violence? Is it inconceivable that the fact that a non-citizen has engaged in family violence would weigh in favour of that person, even if the relevant offending was at a low level of seriousness?
Para 8.1.1(1)(a) of Direction 110 read:
8.1.1. The nature and seriousness of the conduct
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:
i. violent and/or sexual crimes;
ii. crimes of a violent and/or sexual nature against women or children, regardless of the sentence imposed;
iii. acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
Para 8.2 of Direction 110 read:
8.2. Family violence committed by the non-citizen
(1) 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).
(2) This consideration is relevant in circumstances where:
a) a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or
b) there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.
(3) In considering the seriousness of the family violence engaged in by the noncitizen, the following factors must be considered where relevant:
a) the frequency of the non-citizen's conduct and/or whether there is any trend of increasing seriousness;
b) the cumulative effect of repeated acts of family violence;
c) rehabilitation achieved at time of decision since the person's last known act of family violence, including:
i. the extent to which the person accepts responsibility for their family violence related conduct;
ii. the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
iii. efforts to address factors which contributed to their conduct; and
d) Whether the non-citizen has re-offended since being formally warned, or since Otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the noncitizen's favour. This includes warnings about the non-citizen's migration status, should the non-citizen engage in further acts of family violence.
Some of the questions to the Federal Court (FCA) were as follows:
Question 1: Was it s 43(1) of the AAT Act together with s 500(1)(b) of the Migration Act 1958 (Cth) which empowered the AAT to exercise the power conferred on the Minister and exercised by the delegate under s 501(1) of the latter Act?
Question 2: Even though the Tribunal was reviewing a decision made under s 501(1) to refuse to grant a visa, its reasons for decision referral to 'revocation' (in its different forms) of the visa on multiple occasions. Did the Tribunal’s repeated usage of the word “revocation” indicate that it had mistaken the nature of its review function and demonstrated a failure to appreciate that its statutory task required a de novo review of all materials before it at the time of its decision?
Question 3: Is the answer to Question 2 influenced by the fact that the Tribunal made multiple references to the revocation of the visa, instead of revocation of the visa application?
Question 4: If the answer to Question 2 is 'yes', was that error material?
Question 5: Did para 8.2 of Direction 110 dictate the weight to be given to the consideration of the family violence?
Question 6: Is it inconceivable that the fact that a non-citizen has engaged in family violence would weigh in favour of that person, even if the relevant offending was at a low level of seriousness?
Question 7: If the answer to Question 2 is 'no', did the Tribunal deny the Minister procedural fairness by not informing him that the consideration of family violence should weigh in favour of the non-citizen?
Question 8: Are the terms “serious” and “very serious” used in paragraph 8.1.1(1)(a) and 8.1.1(1)(b) of the Direction to draw distinctions of gravity?
The FCA answered those questions as follows: