Federal Court. Was it impossible for the Applicant to demonstrate the testing of his rehabilitation in the community, as he had not been in the community, with the result that the finding about lack of testing in the community was illogical?
In reviewing a non-revocation decision under s 501CA(4) of the Migration Act 1958 (Cth) while the Applicant was held in immigration detention, the Tribunal said (emphasis added):
103. The Tribunal observes that [the Applicant's] rehabilitation efforts, while extensive, are relatively recent in relation to his 2018-2022 offending and have not been tested in terms of an intimate relationship [with a woman] or in the general community….
120. [The Applicant's] expressions of remorse, demonstrations of which are set out above, appear to be relatively recent. Additionally, [the Minister's representative] observed in his closing submissions that [the Applicant] had only made bare assertions of remorse. The Tribunal agrees with this observation, noting that [the Applicant] did not identify his victims or make specific expressions of remorse about any individual victim.
122. Notwithstanding [the Applicant's] assertions in his oral testimony and acknowledging its findings about his credibility above, the Tribunal finds no certainty as to whether [the Applicant] would continue with his rehabilitation efforts if allowed to stay in Australia.
Para 9(1)(d) of Direction 99 read:
(1) In making a decision under section 501(1), 501(2) or 501CA(4), the considerations below must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
...
d) impact on Australian business interests
Para 9.4(1) of Direction 99 read:
Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia ...
In relation to para 9(1)(d) and para 9.4(1) of Direction 99, the Tribunal found:
267. The Tribunal considers that the impact on Australian business interests of the hydraulic repair and servicing business ceasing if a decision to affirm [the Applicant's] Visa cancellation decision is made is more complex than that of the earthmoving business. In the short-term, as the situation is now with the business not operating, customers will hold back or seek alternatives until the situation resolves. This state of affairs represents, to some extent, a negative impact on Australian business interests that used [the Applicant's] services in line with [his counsel's] business interests’ contention. Put simply, prices and availability of hydraulic services in the Hervey Bay region will likely already have changed and will continue to change in part due to the absence of [the Applicant]. But the price of a service or goods is a signal wrapped in information. Competitors will see the signal and decide whether to enter and fully commit to the market to replace [the Applicant] over the medium to long-term if a decision to affirm [the Applicant's] Visa cancellation decision is made. Simple market economics suggest demand will be met with supply. As [the Minister's representative] observed, this is a net positive impact for Australian business interests.
Some of the questions to the Federal Court (FCA) were as follows:
Question 1: Was it impossible for the Applicant to demonstrate testing of those rehabilitation efforts, as he had not been in the community, with the result that the finding about lack of testing in the general community contributed to illogicality?
Question 2: Can it be said that it is unclear what the Tribunal meant by “bare” expressions of remorse, "noting that levels of eloquence may vary across persons in the community", with the result that the finding about such expressions contributed to illogicality?
Question 3: In relation to the Tribunal's finding of "no certainty", is the threshold of certainty which the Tribunal required unreasonable, and not required by Direction 99?
Question 4: Is the focus of para 9(1)(d) and para 9.4(1) of Direction 99 on the impact on Australian business interests if the non-citizen’s visa is not cancelled?
Question 5: Is it incorrect to construe “Australian business interests” as meaning the impact on the broader market rather than the impact on the applicant’s actual business?
The FCA answered those questions as follows: