Federal Court. Does it matter for the purpose of s 501(7)(c) the country where a non-citizen is sentenced? Was subparagraph 11.2(4)(e) of Direction No 65 directed only to an existing state of affairs, as opposed to possible future events? If so, does it follow that AAT could not have considered possible future events if there had been sufficient evidence before it?
Some of the questions to the Federal Court (FCA) were as follows:
Question 1: A person has a substantial criminal record under s 501(7)(c) and therefore fails the character test if "the person has been sentenced to a term of imprisonment of 12 months or more". Does it matter whether the was sentenced in Australia or overseas?
Question 2: Was subparagraph 11.2(4)(e) of Direction No 65 directed only to an existing state of affairs, as opposed to possible future events?
Question 3: If so, does it follow that AAT could not have considered possible future events if there had been sufficient evidence before it?
Question 4: Did the Tribunal, by stating that the removal of the non-citizen from Australia would not result in "significant harm" to his minor grandchildren, rather than stating whether removal would be contrary to those children's "best interests" (as mandated by Direction No 65), impose the requisite standard of satisfaction too high and thereby make a jurisdictional error?
The FCA answered those questions as follows:
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