Federal Court. Can it be said that, although drink driving and possession of child pornography do not require an element of harm to another person to attract criminal sanction, they can cause the type of harm contemplated by cl 9.1.2(2)(a) of Direction 79? Does cl 9.1.2(2)(a) call for consideration of what would most likely (as opposed to what could) occur in the future if the non-citizen engaged in conduct which led to the cancellation of their visa?
Some of the questions to the Federal Court (FCA) were as follows:
Question 1: Cl 9.1.2(2)(a) of Direction 79 required the decision maker to consider "the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct". Can it be said that, although drink driving and possession of child pornography do not require an element of harm to another person to attract criminal sanction, they cause the type of harm contemplated by cl 9.1.2(2)(a)?
Question 2: Does cl 9.1.2(2)(a) of Direction 79 call for consideration of what would most likely (as opposed to what could) occur in the future if the non-citizen engaged in conduct which led to the cancellation of their visa?
The FCA answered those questions as follows: