Federal Court (Full Court). Cl 14.4(1) of Direction 79 required decision-makers to consider, under s 501CA(4), the "impact of a decision not to revoke" the mandatory cancellation of a visa on members of the Australian community, including victims and relatives of victims of the former visa holder. Should cl 14.4(1) be interpreted as referring to the impact of a decision to revoke, as opposed to the impact of a decision not to revoke?
Some of the questions to the Full Court Federal Court (FCAFC) were as follows:
Question 1: Cl 14.4(1) of Direction No 79 stated that, in the context of assessing under s 501CA(4) of the Migration Act 1958 (Cth) whether there is "another reason" to revoke the mandatory cancellation of a visa under s 501(3A), decision-makers must consider the "impact of a decision not to revoke on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims where that information is available and the non-citizen being considered for revocation has been afforded procedural fairness" (underlining added). Should cl 14.4(1) be interpreted literally? Or should it rather be interpreted as requiring consideration of the impact of a decision to revoke?
Question 2: In the context of s 501CA(4), did the Other Considerations in Direction No 79 need only be taken into account by the Tribunal "where relevant"?
Question 3: If the answer to Question 2 is "yes", does what is relevant depend in part on the representations made by the applicant for revocation?
Question 4: In the context of s 501CA(4), can it be said that, "where a matter is relevant to two or more mandatory relevant considerations, a decision-maker is not usually required to take the matter into account repetitiously"?
Question 5: Can it be said that "the fact that such a decision-maker does not refer to a consideration prescribed by Direction No. 65 in the precise compartmentalised sequence of headings set out in that instrument" is relevant but "not determinative of whether the decision-maker has lawfully considered, construed and applied that consideration"?
Question 6: If the answer in Question 5 is "yes", can that proposition be 'outflanked' if there was some aspect of the evidence of the relative of the former visa holder as a victim which was distinct from the evidence put forward as a relative?
The FCAFC answered those questions as follows:
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