Federal Court. Does the reasoning of the Full Court in CGX20 require "the conclusion that a victim of offending who advances a claim that the impact on them should the cancellation of an offender’s visa be revoked would be positive is disentitled from having that contention and their interest as a victim taken into account in the application of cl 14.4 of Direction No 79"?
Cl 14.4(1) of Direction 79 required decision-makers to take into account the following consideration when assessing, under s 501CA(4) of the Migration Act 1958 (Cth), whether there was 'another reason' to revoke the mandatory cancellation of a visa under s 501(3A) (emphasis added):
Impact of a decision not to revoke on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims where that information is available and the non-citizen being considered for revocation has been afforded procedural fairness.
In CGX20, the Full Court of the Federal Court held as follows about the interpretation of cl 14.4(1):
9 The primary judge considered that the Tribunal’s construction was correct on the basis that there was an obvious error in the phrasing of cl 14.4. He said that, in all likelihood, the error was caused by the negative character of an application under s 501CA(4) in which an applicant sought to revoke a visa cancellation. He noted that there are many instances in which a victim of violence, including family violence, may have a relationship with the non-citizen whose visa has been, or is at risk of being cancelled, and wishes the person to remain in Australia so as to maintain a relationship. His Honour did not agree with the Tribunal’s suggestion that not revoking the decision to cancel a non-citizen’s visa would always have a positive impact on victims, because sometimes it may have an adverse impact on a victim and cited, as an example, Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531 at 539 [32] per Rangiah J.
23 The construction arrived at by the Tribunal, which the primary judge considered correct, is more consistent with the analogously expressed requirements in cll 10.4 and 12.3 than with a literal construction of cl 14.4. The failure of the Minister to advance any intelligible reasoning process as to why the literal construction ought be applied enables us more confidently to find that the primary judge was correct in treating the word “not” in cl 14.4 as an error or surplusage that should be ignored so that persons bound by Direction 79 will approach their decisions consistently under cll 10.4, 12.3 and 14.4 in respect of the impact on the community, including victims, if the non-citizen were to hold a visa.
The Federal Court answered the above question as follows: