Federal Court (Full Court). Was the Tribunal entitled to double count its assessment of the seriousness of the applicant's offending both when attributing weight to that specific consideration and again when weighing all considerations, both primary and other, in the final assessment?
Paragraph 14.2 of Direction 79 provided:
14.2 Strength, nature and duration of ties
(1) The strength, nature and duration of ties to Australia. Reflecting the principles at 6.3, decision-makers must have regard to:
(a) How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i. less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii. More weight should be given to time the non-citizen has spent contributing positively to the Australian community.
(b) The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non-citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).
Some of the questions to the Full Court of the Federal Court (FCAFC) were as follows:
Question 1: Are the principles set out in paras 6.3(5) and 6.3(7) of Direction 79 explanatory of the content of para 14.2?
Answer: Yes.
Question 2: Did the Tribunal make an error in "considering the non-citizen’s criminal or other serious conduct in assessing the Australian community’s tolerance for such conduct in the context of considering how soon the offending began, the length of any positive contribution to the Australian community and the extent of family and community ties"?
Answer: No.
Question 3: The Tribunal "applied a discount to the weight to be given to the evident strength, nature and duration of Mr Jama’s ties by reason of the nature and seriousness of his offending. That discount was then applied again in the Tribunal’s evaluation of the weight of the primary and other considerations". Did the Tribunal double count the nature and seriousness of the offending as discounting the strength, nature and duration of ties?
Answer: Yes.
Question 4: Was the Tribunal entitled to double count its assessment of the seriousness of the offending both when attributing weight to that specific consideration and again when weighing all considerations, both primary and other, in the final assessment?
Answer: No.
The FCAFC answered those questions as follows: