Federal Court. When assessing under para 8.1.1 of Direction 99 the nature and seriousness of the Appellant's conduct to date, is the fact that he remained and worked unlawfully in Australia an irrelevant consideration?
Para 8.1 of Direction 99 provided:
8.1 Protection of the Australian community
(1) When considering protection of the Australian community, decision-makers should keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
(2) Decision-makers should also give consideration to:
a) the nature and seriousness of the non-citizen’s conduct to date; and
b) the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.
Para 8.1.1 of Direction 99 provided:
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:
a) without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
…
iii. acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
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:
…
iii. any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion (for example, section 501(6)(c));
…
c) with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
Some of the questions to the Federal Court (FCA) were as follows:
Question 1: When assessing under para 8.1.1 of Direction 99 the nature and seriousness of the Appellant's conduct to date, is the fact that he remained and worked unlawfully in Australia an irrelevant consideration?
Question 2: Was it open to the Tribunal to consider that remaining and worked unlawfully in Australia was serious; and, in particular, of an equivalent seriousness to the other species of conduct listed in cl 8.1.1(1)(b) of Direction 99?
Question 3: Should the regulatory framework that governs Australia’s immigration policy qualify as an 'institution' within para 8.1(1) of Direction 99?
The FCA answered those questions as follows: