Federal Court. Can it be said that, as the visa was cancelled on the basis that the applicant failed the character test arising from the application of the objective standard that he has “a substantial criminal record” in s 501(6)(a), "the subjective standard referred to in paragraph 8.1.1(1)(b)(iii) does not and cannot apply"? Is what was said in an earlier judgment involving the same applicant and Minister "material" before the Tribunal on which it could base its findings?
Para 8.1(1) of Direction 99 provided (original emphasis):
8.1. Protection of the Australian community
(1) When considering protection of the Australian community, decision-makers should keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
...
Para 8.1.1(1)(b)(iii) of Direction 99 provided (original emphasis):
8.1.1. The nature and seriousness of the conduct
(1) In considering the nature and seriousness of the non-citizen's criminal offending or other conduct to date, decision-makers must have regard to the following:
...
b) without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
...
iii. any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker's opinion (for example, section 501(6)(c));
Some of the questions to the Federal Court (FCA) were as follows:
Question 1: Is the conduct referred to at para 8.1(1) of Direction 90 limited to specific conduct that may give rise to a failure of the character test in s 501(1) of the Migration Act 1958 (Cth)?
Question 2: Can it be said that, as the visa was cancelled on the basis that the applicant failed the character test arising from the application of the objective standard that he has “a substantial criminal record” in s 501(6)(a) of the Migration Act 1958 (Cth), "the subjective standard referred to in paragraph 8.1.1(1)(b)(iii) does not and cannot apply"?
Question 3: Although what was said in an earlier (but related) judgment involving the same applicant and Minister is not evidence, is it "material" before the Tribunal on which the Tribunal could base its findings?
Question 4: As the Tribunal referred several times in its reasons to the judgments of the primary judge and the Full Court, is the inference that it failed to consider the material in those judgments "not too readily to be drawn"?
Question 5: If the answer to Question 4 is 'yes', should the Tribunal's failure to mention the extensive and detailed oral evidence of JW before the first Tribunal in December 2021 and her affidavit evidence before the primary judge which was dated May 2022 satisfy the FCA that the Tribunal overlooked that evidence?
Question 6: Is this matter "similar to Uelese in the sense that the Tribunal not only failed to act on the information before it in relation to JW’s stated attitude in her May 2022 affidavit as to the cancellation of the applicant’s visa and the effect of such cancellation on her and the applicant’s minor children, but it failed to make even the most cursory inquiry to follow-up on that information"?
Question 7: If the answer to Question 6 is 'yes', is the error nevertheless immaterial, because JW’s affidavit was not tendered in the present judicial review application?
Question 8: Does the materiality test pose a low hurdle or low threshold?
The FCA answered those questions as follows: