Is Direction 110 invalid?

Paragraph 8.5 of Direction 110 provided as follows:

8.5.     Expectations of the Australian Community

(1)     The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.

(2)     In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:

a)     acts of family violence; or

b)     causing a person to enter into, or being party to (other than being a victim of), a forced marriage;

c)     commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, 'serious crimes' include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;

d)     commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or

e)     involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or

f)     worker exploitation.

(3)     The above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community

(4)     This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case.

The Federal Court (FCA) said as follows:

4    The applicant’s conviction led to him being notified that his visa had been cancelled pursuant to the mandatory cancellation power contained in s 501(3A) of the Migration Act 1958 (Cth) (Act) on the basis that the decision-maker was satisfied that he had a substantial criminal record by reason of s 501(7)(c) and, as a result, did not pass the character test under s 501(6)(a) of that Act (Cancellation Decision). Subsequently, on 19 June 2023, a delegate of the Minister determined that the applicant did not pass the character test and was not satisfied that there was another reason why the Cancellation Decision should be revoked for the purpose of s 501CA(4) of the Act (Non-Revocation Decision).

5    The applicant then applied to the predecessor of the Tribunal (then the Administrative Appeals Tribunal) for a review of the Non-Revocation Decision. His application was unsuccessful, and the Tribunal affirmed the decision on 13 September 2023 (the First Tribunal Decision). However, the First Tribunal Decision was subsequently quashed by orders made by Lee J of this Court on 29 February 2024. That came about by reason of a concession made by the Minister that the Tribunal member in the First Tribunal Decision had failed to comply with a mandatory consideration under paragraph 8.4(4)(f) of Ministerial Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA, in that the member had not considered the known views of the child when assessing the best interests of minor children in Australia.

6    The matter was remitted to the Tribunal. On remittal, the Tribunal was constituted by the same member who had made the First Tribunal Decision. The applicant requested that the Tribunal be reconstituted by a different member, however, this request was rejected on 16 July 2024.

7    The applicant’s application for review was then heard again before the same member of the Tribunal on 18, 19 and 28 November 2024. On 5 February 2025, the Tribunal affirmed the Non-Revocation Decision once more (Second Tribunal Decision).

Some of the questions to the FCA were as follows:

Question 1: Can a direction given under s 499(1) of the Migration Act 1958 (Cth) require a decision-maker exercising power under s 501CA(4) to either "reach a particular outcome, or compel specific weight to be given to a particular matter"?

Question 2: If the answer to Question 1 is 'no', does it follow that "a direction given under s 499 of the Act cannot guide a decision-maker as to the matters to consider or the content of those matters in making an assessment as to the appropriate decision to be made in the exercise of the power under s 501CA(4)"?

Question 3: Does Direction 110 purport to prescribe, to a significant extent, the manner in which the discretion in s 501CA(4) can be exercised, such that it is inconsistent with that subsection and contrary to s 499(2), therefore being invalid?

Question 4: Did the Tribunal made a jurisdictional error by not treating para 8.5 of Direction 110 as mere guidance and by instead applying it strictly and without consideration as to whether it was appropriate in the particular circumstances of his case?

Question 5: Is there a "general rule of law or principle that requires the Tribunal to be reconstituted on a remitter"?

Question 6: Can it be said that "the prior determination of the applicant’s application for review might have led the Tribunal member not to determine the applicant’s application on its merits"?

Question 7: Is there a logical connection between the prior determination of the applicant’s application for review and the apprehended deviation from a determination of the instant case on its merits?

Question 8: Would any apprehension of bias here be reasonable?

The FCA answered those questions as follows: