Federal Court. Is Direction 99 inconsistent with s 501CA(4) of the Migration Act 1958 (Cth) "because it [serves to prohibit consideration of] what would otherwise be a matter that a decision maker should be able to have regard to when exercising its power and discretion [namely, that the Australian community might, in fact, expect that a former visa holder in the position of the applicant should have the cancellation of his or her visa revoked]"?
Some of the questions to the Federal Court (FCA) were as follows:
Question 1: Can it be said that, "by mandating the consideration of what are deemed to be the expectations of the Australian community, Direction 99 effectively prescribes an adverse outcome for those who have engaged in very serious offending", in that this would be inconsistent with s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth), which does not contemplate any particular outcome in respect of any particular offending?
Question 2: Is Direction 99 "inconsistent with the Act because it [serves to prohibit consideration of] what would otherwise be a matter that a decision maker should be able to have regard to when exercising its power and discretion [namely, that the Australian community might, in fact, expect that a former visa holder in the position of the applicant should have the cancellation of his or her visa revoked]"?
Question 3: Can little or even no weight be afforded to the expectations of the Australian community in some circumstances?
Question 4: Can it be said that "a submission or representation to the effect that a decision maker should give a particular “weighting” to a particular consideration that bears upon the existence or otherwise of (for present purposes) “another reason” is not obviously within the realm of matters of which a repository of statutory power must take account before exercising it"?
The FCA answered those questions as follows: