Federal Court (Full Court). Although the chapeaux in cl 12(1) of Direction No 79 refers to a decision whether to cancel a visa, is that clause about whether to refuse a visa? Does the principle in Australia according to which imprisonment is a last resort necessarily apply in other countries? Can it be said that "the length of a prison sentence imposed by courts in some foreign jurisdictions may not accurately reflect the severity of the offence when assessed by reference to sentencing principles applied by Australian courts"?
Some of the questions to the Full Court of the Federal Court (FCAFC) were as follows:
Question 1: Although the chapeaux in cl 12(1) of Direction No 79 refers to a decision whether to cancel a visa, is that clause about whether to refuse a visa?
Question 2: If the appellant never submitted to the Tribunal that cl 12.3(1) raised a consideration that should weigh in his favour, was the Tribunal "entitled to treat this consideration as neutral in the sense that it weighed neither against nor in favour of the grant of a visa"?
Question 3: Does the principle in Australia according to which imprisonment is a last resort necessarily apply in other countries?
Question 4: Can it be said that "the length of a prison sentence imposed by courts in some foreign jurisdictions may not accurately reflect the severity of the offence when assessed by reference to sentencing principles applied by Australian courts"?
Question 5: Is it "in the interests of justice to entertain arguments in circumstances where the arguments have previously been considered by a party’s legal representative and where a decision has been made not to advance them"?
The FCAFC answered those questions as follows: