Federal Court. Para 8.2(1) of Direction 90 read: "The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia..." Para 8.2(2)(b) read: "This consideration is relevant in circumstances where... there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence". Is a police report capable of being seen as an independent and authoritative source?
Paragraph 8.2 of Direction 90 provided:
(1) The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen (see paragraph (3) below).
(2) This consideration is relevant in circumstances where:
a) a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or
b) there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.
(3) In considering the seriousness of the family violence engaged in by the non- citizen, the following factors must be considered where relevant:
a) the frequency of the non-citizen’s conduct and/or whether there is any trend of increasing seriousness;
b) the cumulative effect of repeated acts of family violence;
c) rehabilitation achieved at time of decision since the person’s last known act of family violence, including:
i. the extent to which the person accepts responsibility for their family violence related conduct;
ii. the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
iii. efforts to address factors which contributed to their conduct; and
d) Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen’s favour. This includes warnings about the noncitizen’s migration status, should the non-citizen engage in further acts of family violence.
Para 8.3(4) of Direction 90 provided:
(4) In considering the best interests of the child, the following factors must be considered where relevant:
a) the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
The Tribunal found at [227] (emphasis added):
The unfortunate circumstance for this Applicant relative to this sub-paragraph is that for virtually all of the life of the Younger Child, each of the four abovementioned weight-reduction factors work against him. His relationship with the Younger Child can be safely found to have been a mainly non-parental one and this position now finds its endorsement in the above mentioned orders made in mid-2020. While there can be said to be an existing relationship, there can be no denying that he has been absent from her life for very long periods. While it is propounded that there has been contact between the Applicant and the Younger Child it is difficult to discern whether that contact has been “meaningful”. I will err on the side of caution and…find that whatever contact there has been, has been meaningful. …
Some of the questions to the Federal Court (FCA) were as follows:
Question 1: Was a police report capable of being seen as an independent and authoritative source for the purpose of para 8.2(2)(b) of Direction 90?
Question 2: If the answer to question 1 is 'yes', was the Tribunal nevertheless required to consider whether the police report was an independent and authoritative source for the purpose of para 8.2(2)(b) of Direction 90?
Question 3: Is the content of the obligation of procedural fairness "different or more onerous when arising under para 8.2(2)(b) than that ordinarily required by the authorities"?
Question 4: Can it be said that "the obligation to afford procedural fairness extended to an additional requirement that the Tribunal permit the applicant to cross-examine the police officers who were the authors of the police narratives"?
Question 5: Did the Tribunal mean, "in saying that the relationship with the applicant’s daughter is “mainly non-parental” that he was not one of the child’s biological parents"?
The FCA answered those questions as follows: