Federal Court. In assessing, pursuant to Direction 79 and s 501CA(4) of the Migration Act 1958 (Cth), the expectations of the Australian community, the Tribunal reasoned as follows: "I believe that a properly informed and objective member of the Australian community would not expect [the Applicant] to continue to hold a visa to remain in Australia". Is that reasoning on its face inconsistent with the principles expounded in FYBR about the deemed expectations of the Australian community?
Some of the questions to the Federal Court (FCA) were as follows:
Question 1: Can it be said that correctly stating the law is only a starting point and that "a correct statement of the law cannot immunise subsequent reasoning from a complaint of error"?
Question 2: In assessing, pursuant to Direction 79 and s 501CA(4) of the Migration Act 1958 (Cth), the expectations of the Australian community, the Tribunal reasoned as follows: "I believe that a properly informed and objective member of the Australian community would not expect [the Applicant] to continue to hold a visa to remain in Australia". Is that reasoning on its face inconsistent with the principles expounded in FYBR about the deemed expectations of the Australian community?
Question 3: Can it be said that "mere fact that an applicant has offended in the past does not support a conclusion that the applicant is likely to re-offend in the same manner in the future"?
Question 4: Can it be said that the "circumstances which engage Australia’s non-refoulement obligations will typically be conditions in the receiving country that are widespread and “generic”"? In other words, are the conditions in a receiving countries not to be seen as not engaging non-refoulement obligations merely on the basis that they affect the general population of that country?
Question 5: Was it perverse for the Tribunal to criticise the Applicant's written submission on the basis that it "did not once mention the Applicant by name", instead referring to him as "Applicant"?
Question 6: The Tribunal criticised the submissions for the South Sudanese Applicant as having the quality of being boilerplate, in that the information reproduced in it had been reproduced in other applications before the Tribunal. Was that an illegitimate basis for criticism, as "that is hardly surprising (in that other persons of South Sudanese nationality are likely to have come before the Tribunal)"?
Question 7: Does the absence of a claim prove the negative?
The FCA answered those questions as follows: