Federal Court. Should Direction 65 be read down to be consistent with the Family Law Act 1975? Was AAT required to "give weight to a right, value or interest recognised by statute, international instrument or the common law"? Is Direction 65 inconsistent with that Act? Does the Convention on the Rights of the Child inform the interpretation of paras 13(2)(b), 13.2(1) and 13.2(4) of Direction 65? Is Direction 65 delegated legislation? If not, is it anyway sensible to assume it intended to give effect to Australia's obligations under international law? Is Direction 65 inconsistent with the common law principle of parental responsibility?
The questions to the Federal Court (FCA) were as follows:
Question 1: In making a decision under s 501CA(4) of the Migration Act 1958 (Cth) whether to revoke the cancellation of a visa mandatorily cancelled under s 501(3A), should Direction 65 be read down to be consistent with the Family Law Act 1975 (Cth), so that it does not authorise a finding that the best interests of a child do not weigh for or against revocation of a visa cancellation?
Question 2: Does para 13.2(4)(a) of Direction 65 apply only to non-parental relationships?
Question 3: By saying that less weight 'should generally be given', does it mean AAT had room to apply it a different way so as to make para 13.2(4)(a) consistent with the Family Law Act 1975 (Cth)?
Question 4: Was the AAT require to "give weight to a right, value or interest recognised by statute, international instrument or the common law"?
Question 5: Is Direction 65 is inconsistent with the Family Law Act?.
Question 6: Does the Convention on the Rights of the Child inform the correct understanding and application of paras 13(2)(b), 13.2(1) and 13.2(4) of Direction 65?
Question 7: Is Direction 65 delegated legislation?
Question 8: Even if the answer to Question 7 is "no", is it nevertheless "sensible to apply, as a canon of construction, the assumption that the Minister, prima facie, intended to give effect to Australia's obligations under international law"?
Question 9: Is Direction 65 inconsistent with the principle of parental responsibility?
The FCA answered those questions as follows: