Direction 79: cll 13.2(4), 6.3(4), 13.2(4)(a) & 14.2(1)(a) interpreted

Federal Court. For the purpose of addressing the consideration in cl 6.3(4) of Direction 79, can it be said that it is not permissible for the Tribunal to adopt a "reasonably-minded" member of the Australian community test and that there is a deemed expectation by the use of the preface “The Australian community expects”?

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

Question 1: Can it be said that, although there is "conflicting authority on whether an applicant complaining of a lack of procedural fairness bears a positive onus to establish that they would have taken a different course and that they had thereby suffered “practical injustice”", the absence of such evidence "may well prove decisive in some cases and is a factor to be taken into account in determining whether there has been any “practical injustice”"?

Answer: Yes. [With respect, query whether this answer can be reconciled with the High Court's decision in MZAPC at [38], [39], [49] and [52] (KIEFEL CJ, GAGELER, KEANE AND GLEESON JJ) and [87] (GORDON AND STEWARD JJ)].

Question 2: Can it be said that the Tribunal's finding that the Applicant's "propensity to offend caused him to disrespect the privilege of bail which had been afforded to him" involved the application of a principle not reflected in Direction 79?

Question 3: In circumstances where the Tribunal found that the Applicant’s offending had "severely impacted on the capacity of the applicant to play a hands-on parenting role to his three children (parenting finding)", which is relevant to cl 13.2(4) of Direction 79, and that Applicant’s criminality in Australia "effectively precluded him from earning his living as a qualified panel beater (work finding)", which is relevant to cl 14.2, could the Tribunal take "into account the parenting finding and the work finding in its consideration of the “cumulative effect of repeated offending” for the purposes of cl 13.1.1(1)(f)"? Or would that involve an impermissible form of double counting?

Question 4: Clause 6.3(4) of Direction 79 provided: "In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa". For the purpose of addressing the consideration in cl 6.3(4) of Direction 79, can it be said that it is not permissible for the Tribunal to adopt a "reasonably-minded" member of the Australian community test and that there is a deemed expectation by the use of the preface “The Australian community expects”?

Question 5: Clause 13.2(4)(a) of Direction 79 provided: "In considering the best interests of the child, the following factors must be considered where relevant: The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact)" (Italics added). The Tribunal found that it was "bound" by the terms of cl 13.2(4)(a) to give less weight to this factor because there had been "long periods of absence". Does the use of the term "bound" mean that the Tribunal misinterpreted cl 13.2(4)(a) as obliging it to give less weight in those circumstances?

Question 6: The Tribunal found as follows: "[The applicant] offended less than three years after his arrival. Accordingly, no weight can be allocated in favour [of] the Applicant on the basis of paragraph 14.2(1)(a)(i)." Can it be said that "the Tribunal erred in finding that no weight could be allocated in favour of the applicant on the basis of cl 14.2(1)(a)(i) of Direction 79", in that "the use of the words “less weight” in cl 14.2(1)(a)(i) is not coextensive with “no weight”"?

The FCA answered those questions as follows:

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