Interpreting paras 13.1.1(1)(d) and (e) of Direction 79

 

Federal Court. Para 13.1.1(1)(e) of Direction 79 said that decision makers, when considering whether to revoke under s 501CA(4) the mandatory cancellation of a visa, should consider the "frequency of the non-citizen’s offending". If several offences arose out of one, overall occasion of offending, can those offences be seen as frequent? Para 13.1.1(1)(d) was about "the sentence imposed by the courts for a crime or crimes". AAT said: "To an extent, the investigatory exercise required by this sub-paragraph (e) largely mirrors that required in an application of the immediately preceding sub-paragraph (d). This is because any trend of increasing seriousness of offending is usually analogous to the regime of sentencing imposed for it". Did AAT engage in double counting?

The questions to the Federal Court (FCA) were as follows:

Question 1: For the purposes of para 13.1.1(1)(e) of Direction 79, if several offences arose out of one, overall occasion of offending, can those offences be seen as frequent?

Question 2: Did the Tribunal engage in double counting?

The FCA answered those questions as follows:

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