Cl 13.1.1(1) of Direction 79 interpreted

Clause 13.1.1(1) of Direction 79 read as follows:

13.1.1 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 factors including:

(a)     The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;

(b)     The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;

…

(d)     Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crime

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

Question 1: If the relevant offences are both violent and also committed against a woman, is there necessarily an overlap in the consideration of the factors set out in paragraph 13.1.1(1)(a) and (b) of Direction 79?

Question 2: Can it be said that "while the Tribunal is required by the Direction 79 to treat offending of the type identified as “very serious” it remains for the Tribunal to allocate weight in respect of such offending relative to all other relevant considerations when it comes to assess whether there is another reason for revocation of the visa cancellation under s 501CA(4)(b)(ii) of the Act"?

Question 3: Do the factors listed in paragraph 13.1.1(1) comprise an exhaustive list?

Question 4: Are cl 13.1.1(1)(b) and (d) of Direction 79 ultra vires s 499 of the Migration Act 1958 (Cth) to the extent that they "required the Tribunal to proceed upon the basis that crimes of a violent nature against women or children are to viewed very seriously, regardless of the sentence imposed"?

The FCA answered those questions as follows: