High Court. Is para 8.2 of Direction 90 invalid, based on the proposition that "family violence can be relevant only to the protection of the Australian community (under para 8.1) or to the expectations of the Australian community (under para 8.4)"? Does the attribution of weight to family violence under paras 8.1, 8.2 and 8.4 involve double counting?
Some of the questions to the High Court (HCA) were as follows:
Question 1: Is the observation in Uelese that "the best interests of an applicant's minor children in Australia are 'relevant' if such children exist and that fact is known to the [decision‑maker]" conditioned on the decision‑maker in fact knowing of the existence of a minor child who might be affected by the decision?
Question 2: Can it be said that, while decisions have expressed the criteria for an error in the form of a failure to inquire about a relevant fact or matter that was readily ascertainable and was critical or central to the decision, "these criteria merely reflect the usually high threshold for a conclusion that a power has been unreasonably exercised as a matter of law"?
Question 3: Is para 8.2 of Direction 90 invalid, based on the proposition that "family violence can be relevant only to the protection of the Australian community (under para 8.1) or to the expectations of the Australian community (under para 8.4)"?
Question 4: If a delegate gives such weight to relevant acts of family violence as the delegate sees fit by reference to paras 8.1, 8.2 and 8.4 (as well as, for that matter, paras 5.2(2); 8.3(1), 8.3(4)(g) and (h); and 9(1)(c) and 9.3, if relevant), does that "mean that the delegate's decision is irrational, illogical, or legally unreasonable because the delegate has engaged in "repetitious weighing" or "double counting""?
Question 5: Should the fact that the delegate's reasons are expressed sequentially and separately in dealing with each provision of Direction 90 "be taken to mean that the decision‑maker has not engaged in an overall balancing of the weight of all considerations together"?
Question 6: Is the sequential structure of reasons, so that each topic is dealt with under a separate heading, "generally a sufficient reason to infer that in dealing with one matter the decision‑maker has forgotten the substance of the preceding parts of the reasons or is unaware of the substance of the subsequent parts of the reasons"?
Question 7: Should it be "readily inferred from mere sequential structuring and dealing with each topic under its own heading that a decision‑maker had quarantined the assessment of each topic from every other topic"?
Question 8: Does para 8.4 of Direction 90 "stipulate that, in assessing what weight is to be given to the expectations of the Australian community, the decision‑maker must attribute to that hypothesised community knowledge of the personal circumstances of the applicant for the visa as known to the delegate"?
The HCA answered those questions as follows:
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