Federal Court. Is the question in para 8.3(4)(a)(i) of Direction 99 whether the person was successful in respect of issues such as community participation, employment, or education during his or her formative years relevant in considering whether his or her formative years were spent in Australia? Did para 8.5(2)(a)-(f) exhaustively identify the relevant categories of conduct?
Para 8.3(4)(a)(i) of Direction 99 provided, in the context of the obligation to consider the strength, nature and duration of a non-citizen's ties to Australia:
(4) Decision-makers must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:
a) the length of time the non-citizen has resided in the Australian community, noting that:
i. considerable weight should be given to the fact that a non-citizen has been ordinarily resident in Australia during and since their formative years, regardless of when their offending commenced and the level of that offending; and ...
Paras 8.5(1) and 8.5(2) of Direction 99 set out the expectations of the Australian community, which was also a mandatory consideration:
(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.
...
Some of the questions to the Federal Court (FCA) were as follows:
Question 1: Is the concept of “formative years” referable to the period of time when a person’s character is developed or formed?
Question 2: Is the question of whether the person was successful or not in respect of such issues as community participation, employment, or education during his or her formative years relevant in considering whether his or her formative years were spent in Australia?
Question 3: Is the fact that the Tribunal noted the existence of para 8.3(4)(a)(i) in a footnote to its reasons "conclusive that the Tribunal took into consideration the requirements of that paragraph, when the reasons of the Tribunal as a whole are examined"?
Question 4: Did para 8.5(2)(a)-(f) of Direction 99 exhaustively identify the relevant categories of conduct giving rise to expectations of the Australian community that a visa should be refused or cancelled?
The FCA answered those questions as follows: