Federal Court. Was it permissible for the Tribunal, pursuant to cl 9.4.1(2)(a) of Direction 90, to give less weight to how long the Applicant had resided in Australia, on the basis that the offending conduct commenced when he was a minor? Could "a passage of 12 years constitute “soon after” arrival in relation to commencement of offending conduct"?
One of the considerations that the Tribunal had to take into account in deciding whether to affirm a decision under s 501CA(4) of the Migration Act 1958 (Cth) was set out cl 9.4.1(2)(a) of Direction 90, which provided as follows:
a) how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i. less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii. more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
Some of the questions to the Federal Court (FCA) were as follows:
Question 1: Was it permissible for the Tribunal to give less weight to how long the Applicant had resided in Australia, on the basis that the offending conduct commenced when he was a minor?
Question 2: Could "a passage of 12 years constitute “soon after” arrival in relation to commencement of offending conduct"?
The FCA answered those questions as follows: