Clauses 8.3(1) and 8.4(4)(d) of Direction 99 interpreted

Federal Court. Can it be said that the reference in para 8.3(1) of Direction 99 to "immediate family members in Australia" include children, although they need not be children? Is the question under cl 8.4(4)(d) "not concerned with relationships which may come into existence in the future but rather with those which presently exist"?

Para 8.3(1) of Direction 99 provided:

Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.

Para 8.4(1) of Direction 99 mandated consideration of the best interest of minor children in character decisions.

Para 8.4(4)(d) provided:

(4) In considering the best interests of the child, the following factors must be considered where relevant:

...

d)   the likely effect that any separation from the non-citizen would have on the child, taking into account the child's or non-citizen's ability to maintain contact in other ways

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

Question 1: For the purpose of para 8.4(4)(d) of Direction 99, must the decision-maker consider both the likely effect of the separation and the child or non-citizen’s ability to maintain contact in other ways?

Question 2: Can it be said that the reference in para 8.3(1) of Direction 99 to "immediate family members in Australia" include children, although they need not be children?

Question 3: Is the question under para 8.4(4)(d) of Direction 99 "not concerned with relationships which may come into existence in the future but rather with those which presently exist"?

The FCA answered those questions as follows:

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