Federal Court. In Garland, the Full Court said in relation to para 8.1.1(1)(b)(ii) of Direction 99 that, "where the Direction uses the phrase “vulnerable members of the community” it means members of vulnerable groups in the community; it does not encompass an individual who has physical characteristics or particular circumstances that make them vulnerable vis-à-vis a particular perpetrator". Would the same reasoning apply if the Tribunal said that an applicant's "sheer size would have been most intimidating to the victim"?
Para 8.1.1(1)(b)(ii) of Direction 99 read:
8.1.1. The nature and seriousness of the conduct
(1) In considering the nature and seriousness of the non-citizen's criminal offending or other conduct to date, decision-makers must have regard to the following:
...
b) without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
...
ii. crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
The Federal Court answered that question as follows: