Federal Court. Does the inclusion of a specific procedural fairness requirement into para 8.2(2)(b) of Direction 99 require something more or something different than usual procedural fairness under 501CA(4) of the Migration Act 1958 (Cth)? If so, what is that "something more"?
Para 8.2 of Direction 99 provided:
8.2 Family violence committed by the non-citizen
(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
Some of the questions to the Federal Court (FCA) were as follows:
Question 1: Does the inclusion of a specific procedural fairness requirement into para 8.2(2)(b) of Direction 99 require something more or something different than usual procedural fairness under 501CA(4) of the Migration Act 1958 (Cth)?
Question 2: If the answer to Question 1 is 'yes', does that "something more" simply require that "the applicant be given a specific opportunity by the Tribunal to respond to the information or evidence from an “independent or authoritative source” that they perpetrated family violence"?
The FCA answered those questions as follows: