Cl 13.1.1(1)(e): trend determined by date of offending?

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

Question 1: In the context of the review of a decision made under s 501CA(4) Migration Act 1958 (Cth), cl 13.1(1) of Direction No 79 required the Tribunal to give consideration to "the nature and seriousness of the non-citizen’s conduct to date". Will a failure to address the nature and seriousness of the non-citizen’s criminal offending amount to a failure to conduct the review required by the Act and, subject to materiality, a jurisdictional error?

Question 2: Cl 13.1.1(1)(e) provided that: "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 ... The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness". Is the trend of increasing seriousness to be determined by reference to the dates of the offending, as opposed to the dates of the conviction for such offending?

Question 3: If a particular offending is followed by a less serious offending, does that necessarily mean that the trend of offending is of decreasing seriousness?

Question 4: Does the word "any" in "any trend of increasing seriousness" indicate that a decision-maker is required to take into account a trend of increasing seriousness even if that trend is followed by a trend of decreasing seriousness?

Question 5: Is the determination pursuant to cl 13.1.1(1)(e) of whether "there is any trend of increasing seriousness" a jurisdictional fact?

The FCA answered those questions as follows: