Federal Court (Full Court). Should decision-makers, when addressing the consideration in para 13.3 of Direction 79, "eschew any reference to, or reliance upon, the principles expressed in paras 6.3(2) and (3), or any other part of para 6.3, or else stray into error" by assessing for itself what the community expectations are?
Some of the questions to the Full Court of the Federal Court (FCAFC) were as follows:
Question 1: In determining whether to grant leave to raise a new ground on appeal, will there be cases where, "whatever the inadequacy of the explanation for not raising the point below, the interests of justice require that an administrative decision that is plainly affected by jurisdictional error should not remain standing"?
Question 2: For the purpose of Direction 79, is there a homogenous view as to the “expectations of the Australian community”?
Question 3: Does the ascertainment of the relevant community expectations, for the purposes of para 13.3 of Direction 79, involve reliance on any sort of evidence of the community’s views?
Question 4: Does FYBR dictate that the content of the community expectations in para 13.3 is determined by “the Minister’s (or government’s) conception of these expectations … rather than a finding for which evidence is needed”?
Question 5: Can it be said that cl 13.3 was not authorised by s 499 of the Migration Act 1958 (Cth), as it “is simply not capable of being considered and applied such that it could reasonably or rationally – and thus, lawfully – contribute to the task of a decision-maker exercising functions or powers under section 501CA”, on the basis that cl 13.3 involves “factually baseless” assessment of the community expectations and "the use of permissive as opposed to mandative or probabilistic language amounted to insufficient direction or guidance to the decision-maker as to how to take account of the consideration of the 'expectations of the Australian community'"?
Question 6: Should decision-makers, when addressing the consideration in para 13.3, "eschew any reference to, or reliance upon, the principles expressed in paras 6.3(2) and (3), or any other part of para 6.3, or else stray into error" by assessing for itself what the community expectations are?
Question 7: Should [100] of FYBR, where Stewart J had identified the three relevant expectations which are applicable to para 13.3 of Direction No 79, be accepted?
Question 8: Can it be said that "the plainly-expressed first sentence of para 13.3 is the leading element of para 13.3, the whole of which is to be informed by the principles in para 6.3" and that "what follows in para 13.3 are exemplifications of how the expectation in the first sentence of para 13.3 might play out in particular circumstances, and which might therefore shape the decision-maker’s consideration of the weight to be given to expectations of the Australian community"?
Question 9: Can it be said that "specific circumstances directly relevant to obedience to the law, such as frequency, nature, and extent of offending, although the subject of other primary considerations, will often inform the application of the general norm in para 13.3 because those circumstances will provide the foundation for the norm’s focus"?
Question 10: Can it be said that "the matters relied on by the appellant, namely, ties to the Australian community, a lack of connection with Russia, employment in Australia, the effect on his partner in Australia, a history of alcohol abuse and alcohol use as a coping mechanism for PTSD, the need to be treated for alcohol dependency, reformation of character, and prospects of rehabilitation, were matters that the Tribunal was bound to take into account in identifying and contextualising obedience to the law as a primary consideration"?
Question 11: Can it be said that "the community expectations consideration does not incorporate all the countervailing factors from the person’s specific circumstances. Instead, these individual factors are brought to account when deciding what relative weight to give to community expectations"?
Question 12: Should QHRY "not be followed to the extent that [47] of his Honour’s reasons might be understood as requiring a decision-maker who is subject to Direction No 79 or cognate directions to reason in a particular way by weighing each primary or other consideration against other considerations before undertaking the overall evaluation that is required by the Direction by giving the different considerations relative weight"?
The FCAFC answered those questions as follows: