Part 2: Double counting?

Federal Court. Cl 14.4(1) of Direction 79 required that the following factor be take into consideration in the context of s 501CA(4): "Impact of a decision not to revoke on members of the Australian community, including victims...". Is cl 14.4(1) meant to refer to "impact of a decision to revoke"? Is cl 14.4(1) concerned with whether victims or their families are concerned about whether the non-citizen would remain in Australia, instead of the objective impact of the offending on victims? If so, was that objective impact an irrelevant consideration for cl 14.4(1)? If so, did the consideration of that objective impact amount to jurisdictional error?

Some of the questions to the Federal Court (FCA) were as follows:

Question 1: Was The Tribunal wrong to say that "[i]t is not clear how the offending non-citizen being forced to leave Australia would impact other victims, other than positively"?

Question 2: Is there an error in the formulation in cl 14.4(1), in that it is meant to refer to "impact of a decision to revoke on members of the Australian community, including victims of the non-citizen's criminal behaviour..."?

Question 3: Are the negative consequences for family members who are also victims of the offending if the cancellation is not revoked matters to be considered under other aspects of Direction 79?

Question 4: Is cl 14.4(1) concerned with whether the victims or their families are concerned about whether the non-citizen who sought revocation under s 501CA(4) of the Migration Act 1958 (Cth) of the mandatory cancellation of their visa would remain in Australia, instead of concerned with the objective impact of the offending on victims?

Question 5: In dealing with the protection of the Australian community from criminal or other serious conduct, did the Tribunal address the particular consequences for the victims of the applicant's offending?

Question 6: If the answer to Question 4 is "yes", was the objective impact of the offending on victims an irrelevant consideration for the purposes of cl 14.4(1)?

Question 7: If the answer to Question 6 is "yes", was the objective impact of the offending on victims a mandatorily irrelevant consideration irrelevant to the overall decision to be made, with the consequence that it amounted to jurisdictional error?

The FCA answered those questions as follows:

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