Appeal: s 501(6)(d)(i) limited to visa period?

Paragraph 8.1(2) Direction 90 read as follows:

(2)    Decision-makers should also give consideration to:

(a)    the nature and seriousness of the non-citizen's conduct to date; and

(b)    the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.

Paragraph 8.1.1(1) of Direction 90 provided as follows:

8.1.1 The nature and seriousness of the conduct

(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:

(i)    violent and/or sexual crimes;

…

f)    whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;

…

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

Question 1: Should the following italicised words be implied into s 501(6)(d)(i) of the Migration Act 1958 (Cth): "person does not pass the character test if, during the period of the visa there is a risk that the person would engage in criminal conduct in Australia"?

Question 2: Must directions issued under s 499 be both taken into account and accurately understood?

Question 3: Can such directions "compel a repository of a power to reach a particular outcome, or compel specific weight to be given to a particular matter if, in the individual circumstances of the case, the administrative decision-maker’s view is that different weight should be given to a particular matter"?

Question 4: Do the principles in Drake (No 2) about policies remain generally applicable to these kinds of directions?

Question 5: When an administrative decision-maker assesses and determines the "seriousness" of offending, is that assessment carried out as part of the consideration of the protective function to be served by refusing or cancelling a person’s visa, instead of for the purpose of punishment?

Question 6: Can it be said that, because the penalty imposed for the Applicant's sexual offending was $2,500 and without conviction, it was not open to the Tribunal to find that the offending was "very serious"?

Question 7: Did the effect of paragraph 8.1.1(1)(a) of Direction 90 (that the Australian Government and the Australian community consider sexual crimes to be very serious) relieve the Tribunal of the obligation conferred upon it by paragraph 8.1(2)(a) to consider the nature and seriousness of the non-citizen's conduct to date?

The FCAFC answered those questions as follows: