Federal Court (Full Court). Did para 8.3(4)(a) of Direction 90 suggest that decision-makers cannot consider periods of absence or of limited meaningful contact arising from periods during which a non-citizen is incarcerated? Was para 8.3(4)(a) ultra vires the Migration Act 1958 (Cth)?
The appellant’s visa was mandatorily cancelled pursuant to s 501(3A) of the Migration Act 1958 (Cth), after which a delegate of the first respondent (Minister) refused to revoke the cancellation pursuant to s 501CA(4) of the Act. The appellant then applied to the second respondent (Administrative Appeals Tribunal) for review of the non-revocation decision. The Tribunal was bound to comply with Direction 90, which required the best interests of minor children in Australia affected by non-revocation to be considered. More particularly, para 8.3(4) of Direction 90 provided a list of factors that had to be considered, “where relevant”, in considering the best interests of a child. Para 8.3(4)(a) read as follows: “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…”
The Tribunal, in affirming the non-revocation decision, said as follows at [132]: “By virtue of [the appellant’s] imprisonment during the last seven years, there have been long periods of absence and limited meaningful contact between the [appellant] and the children whose interests he invokes. [His partner] referred to being forced to do ‘two people’s roles’ during the [appellant’s] absence. Less weight is therefore given to this primary consideration…”
Subsequently, the appellant unsuccessfully applied to the Federal Court (FCA) for judicial review of the Tribunal’s decision. The appellant then appealed to the Full Court (FCAFC), arguing that the primary judge erred in not holding that the Tribunal had failed to properly consider the best interests of the child and therefore fallen into jurisdictional error.
Some of the questions to the FCAFC were as follows:
Question 1: Was it for the decision-maker to determine pursuant to para 8.3(4) of Direction 90 what factors were relevant?
Question 2: Can it be said that, given the word “generally” in para 8.3(4)(a), the decision-maker was not obliged to apply less weight, but should consider whether or not to do so?
Question 3: Did para 8.3(4)(a) suggest that decision-makers cannot consider periods of absence or of limited meaningful contact arising from periods during which a non-citizen is incarcerated?
Question 4: Was para 8.3(4)(a) ultra vires the Migration Act 1958 (Cth)?
The FCAFC answered those questions as follows: