Federal Court (Full Court). Did the terms of cl 8.3(4)(a)(i) suggest that decision-makers were at liberty to attribute such weight as they see fit to that factor, providing the weight they attribute is not below the threshold of “considerable weight”? In other words, did cl 8.3(4)(a)(i) contemplate that decision-makers should give the fact of residence in Australia during a non-citizen’s formative years a degree of weight somewhere in the range at or above the minimum that can be described as “considerable”?
Clause 8.3(4)(a)(i) of Direction 99 provided:
8.3 The strength, nature and duration of 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
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Some of the questions to the Full Court of the Federal Court (FCAFC) were as follows:
Question 1: Did the terms of cl 8.3(4)(a)(i) suggest that decision-makers were at liberty to attribute such weight as they see fit to that factor, providing the weight they attribute is not below the threshold of “considerable weight”? In other words, did cl 8.3(4)(a)(i) contemplate that decision-makers should give the fact of residence in Australia during a non-citizen’s formative years a degree of weight somewhere in the range at or above the minimum that can be described as “considerable”?
Question 2: If the answer to Question 1 is 'yes', is an example of such a factor the proportion of the non-citizen’s “formative years” spent in Australia compared to the proportion spent residing in another country?
Question 3: Was the effect of the phrase "regardless of when their offending commenced and the level of that offending" in cl 8.3(4)(a)(i) to require the Tribunal to treat the time when the appellant's offending commenced and the level of that offending as irrelevant considerations when deciding the weight to be given to the fact that he had resided in Australia during part of his formative years?
The FCAFC answered those questions as follows: