Federal Court. Were the applicant’s offending and risk of re-offending matters properly able to be considered as part of the evaluation of the strength, nature and duration of his ties to Australia? Did the Tribunal double count its assessment of the nature and seriousness of the applicant’s offending and the risk of re-offending?
Para 14.2 of Direction 79 provided that, in considering a decision under s 501CA(4) of the Migration Act 1958 (Cth), the decision-maker had to consider the strength, nature and duration of the non-citizen's ties to Australia.
The Tribunal's reasons assessed para 14.2, finding that it weighed slightly in favour of the applicant. The Tribunal then stated in its reasons:
In summary, the Tribunal finds that the Applicant has close ties to the Australian community. He has lived in Australia since he was 17 years old, and his family members reside in Australia, including his numerous siblings, nieces and nephews. Whilst the Applicant did not start offending shortly after arriving in Australia and has contributed to the Australian community to some degree, the Tribunal considers these matters are outweighed by the serious nature of his offending and the risk that he will reoffend. The Tribunal also finds that the Applicant’s family will suffer emotional detriment if he is returned to New Zealand, but would be able to continue to manage financially and practically. Overall, considering the serious nature of the Applicant’s offending and the risk that he will reoffend, this other consideration of the strength, nature and duration of the Applicant’s ties to Australia cannot outweigh these matters and therefore, the Tribunal finds it only weighs slightly in favour of the revocation of the Cancellation Decision.
Some of the questions to the Federal Court (FCA) were as follows:
Question 1: Were the applicant’s offending and risk of re-offending matters properly able to be considered as part of the evaluation of the strength, nature and duration of his ties to Australia?
Question 2: Did the Tribunal double count its assessment of the nature and seriousness of the applicant’s offending and the risk of re-offending?
The FCA answered those questions as follows: