Federal Court. AAT wrote as follows in the context of s 501CA(4) and Direction 79: "While the Tribunal is satisfied these children would likely miss [the applicant] if he could not remain in Australia, and that he may play a more meaningful role in their lives in circumstances where he did not constitute an unacceptable risk of reoffending, this primary consideration is afforded limited weight... The Tribunal finds that this primary consideration weighs in favour of revocation, but does so only slightly". Can it be said that the AAT, "analytically prior to any consideration of the interests of children, decided that the applicant posed an 'unacceptable risk' to the Australian community; but an assessment of whether or not the risk that the applicant posed to the Australian community was 'unacceptable' was one to be formed after consideration of all of the relevant considerations"?
The decision of the Tribunal included the following paragraphs (emphasis added):
141. It is clear [the applicant] has never played a parental role in the lives of these children and his relationship with them has been characterised by long periods of absence and limited meaningful contact since 2012. There is no evidence that those who have performed a parental or primary carer role during [the applicant’s] imprisonment and immigration detention have in any way been deficient in their responsibilities. While the Tribunal is satisfied these children would likely miss [the applicant] if he could not remain in Australia, and that he may play a more meaningful role in their lives in circumstances where he did not constitute an unacceptable risk of reoffending, this primary consideration is afforded limited weight.
142. The Tribunal finds that this primary consideration weighs in favour of revocation, but does so only slightly.
One of the questions to the Federal Court (FCA) was as follows:
Can it be said that the Tribunal, "analytically prior to any consideration of the interests of children, decided that the applicant posed an 'unacceptable risk' to the Australian community; but an assessment of whether or not the risk that the applicant posed to the Australian community was 'unacceptable' was one to be formed after consideration of all of the relevant considerations"?
The FCA answered that question as follows: