Federal Court. Was the view of the Australian government and community that sexual and violence-related crimes are "very serious" (as 8.1.1(1)(a) of Direction 90 records) something that was apt to inform any assessment of the nature or seriousness of the Applicant's criminal history, in circumstances where his offending was neither sexual nor violence-related?
Some of the questions to the Federal Court (FCA) were as follows:
Question 1: Was the view of the Australian government and community that sexual and violence-related crimes are "very serious" (as 8.1.1(1)(a) of Direction 90 records) something that was apt to inform any assessment of the nature or seriousness of the Applicant's criminal history, in circumstances where his offending was neither sexual nor violence-related?
Question 2: Was it legally unreasonable for the Tribunal to consider the "view of the Australian government and community that sexual and violence-related crimes are “very serious”" under paragraph 8.1.1(1)(a) of Direction 90 to assess the Applicant's offending as "very serious" in circumstances where his offending was neither sexual nor violence-related?
Question 3: Were the types of crimes or conduct described in paragraph 8.1.1(1)(b) of Direction 90 as considered by the Australian Government and the Australian community to be serious something that was apt to inform any assessment of the nature or seriousness of the Applicant's criminal history, in circumstances where his offending was neither sexual nor violence-related?
Question 4: Paragraph 8.1.1(1)(b)(ii) of Direction 90 referred to "crimes committed against vulnerable members of the community", instead of crimes that "negatively impact vulnerable members of the community". Is that difference illusory?
Question 5: Can it be said that, "if the Australian government and community consider that crimes committed against the vulnerable are “serious”, then it was open to the Tribunal to consider that other negative impacts wrought by criminal conduct upon the vulnerable might also be relevant to its assessment of the nature and seriousness of the applicant’s criminal history"?
Question 6: Can it be said that, "insofar as the applicant was told that adverse migration consequences might attach to the offending for which he was sentenced in 2011, he must ... be understood implicitly to have been told also that further offending would visit equivalent consequences"?
Question 7: Can it be said that the "Tribunal’s finding as to what the applicant knew or understood at the time of reoffending was also a matter to which it was entitled to have regard in assessing the nature and seriousness of the applicant’s criminal history ... regardless of whether the state of the applicant’s awareness arose in the manner that subparagraph 8.1.1(1)(g) of Direction 90 contemplates"?
The FCA answered those questions as follows: