Federal Court. Are the factors in cl 8.1.1of Direction 90 "exhaustive in the sense of being a closed universe of considerations going to the question of the nature and seriousness of a non-citizen’s conduct"? Can it be said that a reference by an administrative decision-maker to "the balance of probabilities may sometimes properly inform some aspect of the process of reaching the correct or preferable decision, but that there are dangers in taking that approach as it may lead to error"? Is cl 9.4.1(2)(a)(i) only 'causally linked' to cl 9.4.1(2)(a), not to cl 9.4.1(2)(b)?
Relevantly to question 4 below:
Direction 90 included the following passages for the purposes of s 501CA(4) of the Migration Act 1958 (Cth):
9.4.1 The strength, nature and duration of ties to Australia
(1) 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.
(2) Where consideration is being given to whether to cancel a non-citizen’s visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:
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.
b) the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
The Tribunal found as folliows:
[149] The Applicant has lived in Australia since he arrived as a young man in November 2012. He has strong family ties to Australia. He has a mother and stepfather and ten siblings living in Australia who are all Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely. The family lives together in two separate houses in close proximity in Brisbane. He also has two [children] who were born in Australia, although the Applicant has had very limited contact with either [child]. The Applicant also has a nephew. In addition, since 2015, the Applicant has established a role in the Muslim community centred on the [redacted] Mosque where he has friends and he is involved in community activity and religiousobservance.
[150] These are strong and enduring ties which weigh in favour of revocation. However, the relative weight to be given to these ties is diminished by the fact that the Applicant began offending in 2014, shortly after arriving in Australia.
Some of the questions to the Federal Court (FCA) were as follows:
Question 1: Cl 8.1.1(g) of Direction 90 required the decision-maker, in assessing for the purpose of s 501CA(4) of the Migration Act 1958 (Cth) the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, "whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour)". Are the factors in cl 8.1.1(a) to (g) "exhaustive in the sense of being a closed universe of considerations going to the question of the nature and seriousness of a non-citizen’s conduct"?
Question 2: The Tribunal stated as follows in the decisions record: "Accordingly, the sole issue before the Tribunal was whether, under s 501CA(4)(b)(ii), there is another reason why the mandatory cancellation should be revoked" (emphasis added). Can it be said that "the balance of probabilities may sometimes properly inform some aspect of the process of reaching the correct or preferable decision, but that there are dangers in taking that approach as it may lead to error"?
Question 3: Can it be said that "ordinary usage of the phrase “on balance” is to indicate that a conclusion has been reached one way or the other, usually after considering the relevant facts and circumstances, rather than that such a conclusion has been reached to any particular standard"?
Question 4: Can it be said that "there was no permissible basis for the Tribunal to attribute less weight [at [150] to the consideration in cl 9.4.1(2)(a)(ii)] by reason of him having committed offences relatively soon after arriving in Australia", on the basis that cl 9.4.1(2)(a)(i) is only 'causally linked' to cl 9.4.1(2)(a), not to cl 9.4.1(2)(b)?
The FCA answered those questions as follows: