FEDERAL COURT OF AUSTRALIA

Shaw v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 106

MIGRATION – Minister’s discretion to cancel visa – whether impermissibly fettered by application of Direction No 17 – inference to be drawn in absence of reasons for Minister’s decision – effect of references in briefing paper furnished to the Minister – whether cancellation of visa of resident in Australia from the age of 18 months a valid exercise of the power conferred by s 501(2) of the Migration Act 1958 (Cth) – whether deportation of appellant a valid exercise of power with respect to aliens under s 51(xix) of the Constitution.

Migration Act 1958 (Cth) ss 499 and 501

Shorter Oxford English Dictionary 3^rd Edn

Attorney-General (NSW) v Quin (1990) 170 CLR 1 cited

Shaw v Minister for Immigration and Multicultural Affairs (2004) 203 ALR 143 cited

Re Patterson; ex parte Taylor (2001) 207 CLR 391 cited

Minister for Immigration and Multicultural Affairs v W157/00A (2002) 125 FCR 433 cited

Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992)

176 CLR 1 cited

Re Woolley and Anor; Ex parte Applicants M276/2003 (2004) 210 ALR 369 cited

Ruhl v Minister for Immigration and Multicultural Affairs (2001) 184 ALR 401 cited

Aksu v Minister for Immigration and Multicultural Affairs (2001) 65 ALD 667 cited

Jahnke v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 268 cited

Madafferi v Minister for Immigration & Multicultural Affairs (2002) 118 FCR 326 explained

Howells v Minister for Immigration and Multicultural Affairs [2004] FCAFC 327 applied

Andary v Minister for Immigration and Multicultural Affairs [2001] FCA 1544 cited

Turini v Minister for Immigration & Multicultural Affairs [2001] FCA 822 not followed

Surinakova v Minister for Immigration and Local Government and Ethnic Affairs (1991) 33 FCR 87 cited

Javillonar v Minister for Immigration and Multicultural Affairs (2001) 114 FCR 311 cited

Bustescu v Minister for Immigration and Multicultural Affairs [1999] FCA 1713 cited

Awa v Minister for Immigration and Multicultural Affairs (2002) 189 ALR 328 cited

JASON SHAW  v  MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Q 231 of 2004

SPENDER, RYAN and TAMBERLIN JJ

8 JUNE 2005

MELBOURNE (heard in BRISBANE)

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.         The appeal be dismissed.

2.         The appellant pay the respondent’s costs, to be taxed in default of agreement.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

REASONS FOR JUDGMENT

SPENDER J:

1                     I have had the benefit of reading in draft form the reasons for judgment of Ryan and Tamberlin JJ.  The appeal will be dismissed for those reasons, which are an orthodox judicial assessment of the issues canvassed before the primary judge and the submissions made on the appeal, based on the grounds on which the appeal was brought.

2                     However, for my part, I am unable in good conscience to accept that in the circumstances of this case, the judicial power of the Commonwealth of Australia is compelled to endorse, as devoid of impeachable legal error, the decision subject to challenge in this case, a decision which is in my opinion perverse, irrational, unconscionable and contrary to the statutory purpose of s 501 of the Migration Act 1958 (Cth) (“the Act”). 

3                     In my opinion, it cannot be a lawful exercise of the power conferred on the Executive with respect to aliens, to deport to the United Kingdom a person who has spent almost the entirety of his life in Australia, who has an Australian wife and two Australian sons, who has absolutely no connection with the United Kingdom, other than being born there of parents who were then nationals of the United Kingdom but who later became Australian citizens, and having spent the first eighteen months of his life there, simply because he is a criminal.

4                     I accept that it is no part of the judicial function to correct administrative error or injustice.  In Attorney-General (NSW) v Quin (1990) 170 CLR 1, Brennan J, as he then was, said at 35-36:

‘The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository’s power.  If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error.  The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.’

5                     It is, of course, sometimes difficult to draw the boundary between merits and the limits of legal power, and I accept that the courts are neither required nor permitted to examine the merits of policies being pursued or the merits of a particular decision which is made.

6                     Section 501(2) of the Act relevantly provides:

‘The Minister may cancel a visa that has been granted to a person if:

(a)          the Minister reasonably suspects that the person does not pass the character test; and

(b)          the person does not satisfy the Minister that the person passes the character test.’

7                     It is common ground in this case that the appellant does not pass the character test referred to s 501(6) of the Act.

8                     In the very circumstances of the present appellant, in Shaw v Minister for Immigration and Multicultural Affairs (2004) 203 ALR 143 (“Shaw”), the High Court of Australia, by a  4-3 majority, held that s 501(2) of the Act was within the legislative powers of the Commonwealth, to the extent that it authorised the Minister to cancel the applicant’s visa on 17 July 2001. 

9                     The joint judgment of Gleeson CJ, Gummow and Hayne JJ commences:

‘The principal issue raised by the case stated is whether the power of the parliament conferred by s 51(xix) of the Constitution to make laws with respect to “naturalization and aliens” supported s 501(2) of the Migration Act 1958(Cth) (the Act) in the application of that provision to authorise the respondent (the minister) to cancel the applicant’s visa on 17 July 2001.  The issue should be resolved favourably to the minister.’

Their Honours continued in [3]:

‘The applicant was born to British parents on 27 December 1972 in the United Kingdom of Great Britain and Northern Ireland (the UK).  He arrived in Australia on 17 July 1974 and has not left Australia since that date.  The applicant has not become an Australian citizen pursuant to the Australian Citizenship Act 1948(Cth) (the Citizenship Act) and has not applied for Australian citizenship.  He is not eligible to vote in this country.’

And at [5] and [6]:

‘The applicant was regarded by the Minister as the holder of a transitional (permanent) visa which, unless revoked according to law, permitted him to remain in Australia indefinitely.  However, immediately prior to 17 July 2001, the applicant was deemed to have a “substantial criminal record” with the meaning of s 501(7) of the Act.

By reason of his criminal record, the applicant did not pass the “character test” specified in s 501(6).  On 17 July 2001, the Minister cancelled the applicant’s visa in exercise of a power under s 501(2) which was enlivened by the applicant’s failure to pass the “character test”.  That cancellation, by force of s 15, rendered the applicant an “unlawful non-citizen” to whom there applied the provisions respecting removal and deportation in Pt 2 of the Act.  The term “non-citizen” is defined in s 5(1) of the Act as meaning “a person who is not an Australian citizen”.’

10                  Their Honours concluded, in [32]:

‘This case should be taken as determining that the aliens power has reached all those persons who entered this country after the commencement of the Citizenship Act on 26 January 1949 and who were born out of Australia of parents who were not Australian citizens and who had not been naturalised…’

Their Honours had earlier remarked at [27]:

‘Once it be decided that the text of the Constitution contemplates changes in the political and constitutional relationship between the United Kingdom and Australia, it is impossible to read the legislative power with respect to “aliens” as subject to some implicit restriction protective from its reach those who are not Australian citizens but who entered Australia as citizens of the UK and colonies under the 1948 UK Act.  It was unnecessary to reach that conclusion in Re Patterson; Ex parte Taylor [(2001) 207 CLR 391 at 470], but it should now be reached.’

11                  In Re Patterson; ex parte Taylor (2001) 207 CLR 391, decided two years before Shaw, it was held by Gaudron, McHugh, Kirby and Callinan JJ – Gleeson CJ, Gummow and Hayne JJ dissenting – that a British subject living in Australia was not an alien, but was a subject of the Queen of Australia; hence s 501(3) of the Act could not apply to him.

12                  In Shaw, Heydon J agreed with the orders and reasons of Gleeson CJ, Gummow and Hayne JJ.  

13                  McHugh, Kirby and Callinan JJ held that the Act was invalid insofar as it purported to apply to the present appellant.  McHugh J said at [51]-[52]:

‘… For the reasons that I gave in Re Patterson, subjects of the Queen of Australia are not aliens for the purpose of the Constitution.

It follows that the applicant, who arrived in Australia in 1974 and was permanently living in Australia on 3 March 1986, is a subject of the Queen of Australia.  He is not an alien within the meaning of s 51(xix) of the Constitution.  The Parliament of the Commonwealth has no power to authorise his deportment from this country.’

14                  Kirby J said in [111]:

‘I therefore concur in finding the applicable date for the termination of the status of non-citizen British subjects as being 3 March 1986.  The process that had begun in the change in Australian nationality at an unspecified time after federation should be taken to have concluded on 3 March 1986.  Persons arriving as immigrants in Australia as “subjects of the Queen’ on and before that date were not “aliens”.  They cannot be deported as such under laws made pursuant to the “aliens” head of constitutional power.’

15                  Callinan J said at [177]:

‘In my opinion, the correct date for the change in status of a subject of the Queen in Australia can be no earlier than the coming into force of the Australia Acts: 3 March 1986.’

16                  This Court, and the Judges of it, are of course bound by the judgment of the High Court on the stated case in Shaw, which answers in the affirmative the question “Was s 501(2) of the Migration Act 1958 (Cth) within the legislative powers of the Commonwealth to the extent that it authorised the respondent to cancel the applicant’s visa on 17 July 2001?”  The majority of the High Court concluded that Mr Shaw was an alien, notwithstanding that he was born to British parents on 27 December 1972 in the United Kingdom and he arrived in Australia on 17 July 1974 and had not left Australia since that date.

17                  The question on this appeal, it seems to me, is: in the factual circumstances of this case, was the decision to cancel the applicant’s visa a valid exercise of the jurisdiction conferred on the Minister by s 501(2) of the Act?

18                  Jason Shaw came to Australia with his parents, aged eighteen months.  He has been here ever since.  He has a lengthy criminal history, and it is not in doubt that he fails the character test in s 501(6) of the Act.  While he is a criminal, he is an “Australian” criminal.  He is now thirty-two years of age.  I note that it seems thoroughly unfair to the United Kingdom to send Mr Shaw there for no good reason other than that he is now a person of poor character who happens to have spent the first eighteen months of his life there. 

19                  I agree with Ryan and Tamberlin JJ that, in this case, the Minister has not furnished any reasons for his decision.  Notwithstanding the contention by counsel on behalf of the Minister that the briefing paper constituted the Minister’s reasons for his decision, the briefing paper does not explain why the Minister reached the decision he did.  The briefing paper was of the kind described in Minister for Immigration and Multicultural Affairs v W157/00A (2002) 125 FCR 433 (“W157”) where a Full Court of the Federal Court (Branson, Goldberg and Allsop JJ) were of the view that the briefing paper in that case was not the giving of reasons; the document identified the universe of material to which the Minister may have had regard, but did not express why the Minister thought one of the alternatives over the other should be adopted.

20                  In Ayan v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 196 ALR 332, Allsop J reached a similar conclusion in respect of the briefing paper involved in that case.  His Honour said at [57]:

‘… The document sent to the appellant here did not explain why the minister exercised the discretion in the way he did, what he took into account and what weight he gave matters, beyond […“I have considered all relevant matters including (1) an assessment of the Character Test as defined by s 501(6) of the Migration Act 1958, (2) my Direction under s 499 of that Act and Mr Ayan’s comments, and have decided that …”] …  Its adoption by signing and choosing the fourth available alternative did and does not illuminate the reasons for that choice.  Given the circumstances of his position, that leaves the appellant in a very difficult position demonstrating jurisdictional error in a matter of such gravity.’

21                  The Full Court in W157 concluded that the breach by the Minister of the duty imposed by s 501G(1)(e) of the Act to furnish reasons did not amount to jurisdictional error.

22                  It cannot be that the Minister is in a better position because he is in breach of the duty that the Act imposes on him to furnish reasons for his decision.  On this appeal, counsel for the Minister contended that the briefing paper constituted the reasons of the Minister.  The briefing paper did not constitute the Minister’s reasons, as is apparent on even the most superficial inspection.  I agree with Ryan and Tamberlin JJ that in this case, the reasons for the Minister’s decision have to be gathered by inference from the terms in which his decision is expressed, the contents of the briefing paper and the related circumstances.

23                  When one examines the briefing paper, it is in my opinion clear that the Minister failed to consider what he represented to the appellant as being the primary considerations that he would consider in making his decision.  This is so particularly in relation to the considerations described as ‘The Expectations of the Australian Community’ and the consideration ‘The Best Interests of the Children”.

24                  The briefing paper in respect of the issue of “The Expectations of the Australian Community” recites:

‘… The Australian community expects non-citizens to obey Australian laws while in Australia and therefore it is open for you to find that the character concerns or offence are such that the Australian community may expect that Mr SHAW should be removed from Australia.’ 

25                  Of course the Australian community expects non-citizens to obey Australian laws while in Australia.  It also expects citizens to obey Australian laws.  The reference, twice, in the briefing paper of the expectations of the Australian community to the phrase ‘while in Australia’ highlights the unreality of deporting this person who has been in Australia for almost the entirety of his life. 

26                  The briefing paper is wholly silent as to what might be thought to be the expectations of the Australian community in respect of a man who has been in Australia since the age of eighteen months and has never departed Australia, who has an Australian wife and two Australian sons, and has no continuing connection at all with the country of his birth.

27                  Similarly, under the “The Best Interests of the Children”, the briefing paper refers to Article 3.1 of the Convention of the Rights of the Child which states:

‘In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.’

28                  The briefing paper also makes reference to a number of statements made by Mr Shaw in his submission to the Department.  As to what are the best interests of the children and what the Minister considered were the best interests of the children, the briefing paper makes only scant reference.  It says:

‘It is open for you to find that Mr SHAW’s children would not be adversely affected by language barriers if they were to accompany their father to the United Kingdom, if Mr SHAW was removed from Australia.

It is open for you to find that if Mr SHAW’s children were to accompany him if he was removed from Australia, the children would not be adversely affected by cultural barriers in the United Kingdom.

It is open to you to find from the information given that the cancellation of Mr SHAW’s visa and his removal from Australia may have a detrimental effect on this children.’  

29                  The paucity of any consideration of what is in the best interests of the children leads me to conclude that, contrary to his promise, the Minister did not have regard to what were the best interests of Mr Shaw’s two Australian children.

30                  I accept that deportation is generally regarded as falling squarely within the scope of the power with respect to aliens in s 51(xix) of the Constitution and is a legitimate executive function.  As Brennan, Deane and Dawson JJ said in Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 (“Lim”) at 25-26:

‘The legislative power conferred by s. 51(xix) with respect to “aliens” is expressed in unqualified terms.  It prima facie encompasses the enactment of a law with respect to non-citizens generally.  It also prima facie encompasses the enactment of a law with respect to a particular category or class of non-citizens, such as non-citizens who are illegal entrants or non-citizens who are in Australia without having presented a visa or obtained an entry permit.  Such a law may, without trespassing beyond the reach of the legislative power conferred by s. 51(xix), either exclude the entry of non-citizens or a particular class of non-citizens into Australia or prescribe conditions upon which they may be permitted to enter and remain; and it may also provide for their expulsion or deportation. (See, e.g., Robtelmes v. Brenan (1906), 4 CLR 395, at pp. 400-404, 415, 420-422; Ex parte Walsh and Johnson; In re Yates (1925), 37 CLR, at pp. 83, 94, 108, 117, 132-133; O’Keefe v. Calwell (1949), 77 CLR 261, at pp. 277-278, 288; Koon Wing Lau v Calwell (1949), 80 CLR 533, at pp. 555-556, 558-559; Pochi v Macphee (1982), 151 CLR 101, at p 106.)’

31                  However, in my opinion, the general power to make laws with respect to aliens is always to be qualified by the limitation that it does not confer on the Executive powers which are properly to be exercised only by a court.  See McHugh J in Re Woolley and Anor; Ex parte Applicants M276/2003 (2004) 210 ALR 369 (“Woolley”) at [80], and Lim at 28. 

32                  In my opinion, deportation in this case of Shaw is not a valid exercise of the aliens power, but is an exercise by the executive arm of government of punishment.

33                  As Brennan, Deane and Dawson JJ said in Lim at 33:

‘… the two sections will be valid laws if the detention which they require and authorize is limited to what is reasonably capable of being seen as necessary for the purposes of deportation or necessary to enable an application for an entry permit to be made and considered.’

34                  In Woolley (the mandatory detention of children case) Gleeson CJ at 375 explained the consequences of the “proportionality test” in Lim:

‘25.   … if a law is reasonably capable of being seen as necessary for the purpose of exclusion, dealing with an application for permission to enter, or removal, then ordinarily it will be proper to regard it as having the character of an incident of the executive power to receive, investigate and determine an application for an entry permit and, after determination, to admit or deport.

26.    … Brennan, Deane and Dawson JJ referred to detention that was “necessary to enable an application for an entry permit to be made and considered”.  Plainly they did not contemplate that it is essential for a person to be in custody in order to make an application for an entry permit, or that it is only possible for the Executive to consider such an application while the applicant is in custody.  They were referring to the time necessarily involved in receiving, investigating and determining an application for an entry permit.  In a particular case, that time may be brief, or, depending upon the procedures of review and appeal that are invoked, it may be substantial.  If a non-citizen enters Australia without permission, then the power to exclude the non-citizen extends to a power to investigate and determine an application by the non-citizen for permission to remain, and to hold the non-citizen in detention for the time necessary to follow the required procedures of decision-making.  The non-citizen is not being detained as a form of punishment, but as an incident of the process of deciding whether to give the non-citizen permission to enter the Australian community.  Without such permission, the non-citizen has no legal right to enter the community, and a law providing for detention during the process of decision-making is not punitive in nature.’    (Emphasis added)

35                  In the present case, where the deportation concerns a permanent resident of the country of very long standing, who has an Australian family and Australian children, the deportation order is not genuinely an exercise of the power of the executive government in respect of aliens, but is punitive in nature, done because the long-term Australian resident is guilty of wrongdoing.  Deportation of such a person is therefore penal, going beyond the exclusionary purpose, which purpose is properly an incident of the executive power. 

36                  In my view the deportation of Mr Shaw, even though he is a non-national, is properly to be regarded as punitive, and is an invalid exercise of judicial power by the Executive.

37                  I would allow the appeal, and quash the decision of the Minister.

Associate:

Dated:              7 June 2005

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

REASONS FOR JUDGMENT

ryan and tamberlin jj:

38                  This is an appeal from an order of a single Judge of the Court dismissing an application by the appellant for review of a decision by the respondent Minister (“the Minister”) on 17 July 2001 to cancel the appellant’s visa.  The grounds of review, as amended, on which her Honour found it necessary to rule, were in these terms:

‘2.        In making the decision to cancel the applicant’s visa, the respondent unlawfully fettered his discretion under s.501 of the Migration Act 1958 by applying Direction no. 17 made under s.499 of the Migration Act 1958, and the fettering of the respondent’s discretion constituted an error of law for the purposes of s.476(1)(e) of that Act or alternatively a reviewable error under either or both paragraphs l(b) and 1(c) of s.476 of the Act.

3.         In making the decision to cancel the applicant’s visa, the respondent further unlawfully, fettered his discretion under s 501 of the Migration Act 1958 by adopting the reasoning set out in a briefing paper prepared for the respondent by a departmental officer in the Department of Immigration and Multicultural Affairs which gave pre-eminence of the “Primary Considerations” in Direction No. 17 and did not list or give any emphasis to the “Other Considerations” in Direction No. 17, and the fettering of the respondent’s discretion constituted an error of law for the purposes of s.476(1)(e) of that Act or alternatively a reviewable error under either or both paragraphs 1(b) and 1(c) of s.476 of the Act.’

39                  The discretion to cancel a visa which had been exercised by the Minister in this case was conferred by s 501(2) of the Migration Act 1958 (Cth) (“the Act”) which provided:

‘The Minister may^, cancel a visa that has been granted to a person if:

(a)       the Minister reasonably suspects that the person does not pass the character test:  and

(b)       the person does not satisfy the Minister that the person passes the character test.’

40                  By sub-s (6) of s 501 it was provided that a person does not pass the character test if that person has a substantial criminal record as defined in s 501(7).  It is common ground that the appellant had been sentenced to a term of imprisonment of more than twelve months and so had a substantial criminal record as defined in s 501(7).

41                  At the time of the decision to cancel the appellant’s visa there was in force Direction No 17 which had been issued by the Minister under s 499 of the Act.  Before making the decision to cancel the appellant’s visa, the Minister was reminded of Direction No 17 although it was pointed out in a memorandum prepared by a Departmental officer for consideration by the Minister:

‘… It is clear from a number of decisions of the Federal Court that, when you decide a case personally, you are not bound by your s.499 Directions.  In making a decision on this case it is open to you to be guided by the factors set out in the Direction.  However, in balancing the relevant factors in this case, you are free to place whatever weight you regard as appropriate on those factors.’

42                  Direction No 17 identified three “primary considerations” to be taken into account in deciding whether a non-citizen should be permitted to remain in Australia.  Those “primary considerations” were expressed as follows:

‘(a)      the protection of the Australian community, and members of the community;

(b)       the expectations of the Australian community;  and

(c)        in all cases involving a parental relationship between a child or children and the person under consideration, the best interests of the child or children.’

43                  “Other considerations” which might be taken into account were listed in par 2.17 of Direction No 17 and reference was made in par 2.18 to “other international obligations.”  The way in which “primary considerations” and “other considerations” including “other international obligations” were to be permitted to interact on a decision-maker’s mind was laid down as follows by par 2.2 of Direction No 17:

‘2.2      The Government is mindful of the need to balance a number of important factors in reaching a decision whether or not to refuse or cancel a visa.  In making such a decision, a decision-maker should have regard to three primary considerations and a number of other considerations.  The primary considerations are set out at paragraphs 2.3 - 2.16 and other considerations are set out at paragraphs 2.17 - 2.23.  Decision-makers should note that no individual considerations can be more important than a primary consideration, but that a primary consideration cannot be conclusive in itself in deciding whether to exercise the discretion to refuse or to cancel a visa.  Decision-makers must have due regard to the importance placed by the Government on the three primary considerations, but should also adopt a balancing process which takes into account all relevant considerations.’

On the other hand, decision-makers were directed by par 2.17 of the Direction that:

‘2.17    When considering the issue of visa refusal or cancellation, other matters, although not primary considerations, may be relevant.  It is the Government’s view that where relevant, it is appropriate that these matters be taken into account but that they be given less individual weight than that given to the primary considerations.’

44                  Because, as we have noted, it is common ground that the appellant did not pass the “character test,” the Minister was required pursuant to s 501(2) of the Act to consider, in the exercise of a discretion, whether or not to cancel the appellant’s visa.  The reasons for the Minister’s decision adverse to the appellant were left to be inferred from the adoption as “the Minister’s Decision Record”, of what had been put forward in a Departmental briefing paper.  In [5] of that briefing paper, it was recited:

‘If you are satisfied that Mr SHAW does not pass the character test you must consider the exercise of your discretion to decide whether Mr SHAW should be permitted to remain in Australia.  S.501 of the Migration Act 1958 provides you with a discretion to cancel a visa.  You have issued Directions under s.499 to guide delegates and the AAT in the exercise of that discretion.  It is clear from a number of decisions of the Federal Court that, when you decide a case personally, you are not bound by your s.499 Directions.  In making a decision on this case it is open to you to be guided by the factors set out in the Direction.  However, in balancing the relevant factors in this case, you are free to place whatever weight you regard as appropriate on those factors.’

45                  In relation to “other considerations” the briefing paper pointed out, at [34];

‘Paragraph 2.17 of the Minister’s Direction provides that other considerations may be taken into account by the decision-maker.  It is the Government’s view that where relevant, it is appropriate that these matters be taken into account but that they be given less individual weight than that given to the primary considerations.’

46                  The briefing paper then went on to identify in relation to the appellant, six “other considerations but no other international obligations”.  Under the headings “any other relevant considerations” and “other matters raised by/on behalf of Mr Shaw” it was uniformly recited at [42] and [43] of the briefing paper:

‘All matters raised have been addressed in line with the Direction.’

47                  At [45] of the briefing paper provision was made as follows for a notation of the “Minister’s Decision on Cancellation under s 501(2)” (original emphasis):

‘MINISTERS DECISION ON CANCELLATION UNDER S.501(2)

[45]      I have considered all relevant matters including (1) an assessment of the Character Test as defined by s501(6) of the Migration Act 1958, (2) the Minister's Direction under s499 of that Act and the non-citizen's comments (if any), and have decided that:

Please deletewhichever is NOT applicable:

(a)        I am satisfied that Jason SHAW passes the character test

OR

(b)        I reasonably suspect Jason SHAW does not pass the character test and Jason SHAW has not satisfied me that he passes the character test BUT I have decided NOT to exercise my discretion under subsection 501(2) of the Act to cancel the visa

OR

(c)        I reasonably suspect Jason SHAW does not pass the character test and Jason SHAW has not satisfied me that he passes the character test BUT I have decided NOT to exercise my discretion under subsection 501(2) of the Act to cancel the visa BUT Jason SHAW is to be WARNED that a fresh assessment will be made with a view to consider cancelling his visa if he is convicted of any further offences

OR

(d)        I reasonably suspect Jason SHAW does not pass the character test and Jason SHAW has not satisfied me that he passes the character test AND I have decided TO EXERCISE MY DISCRETION UNDER SUBSECTION 501(2) OF THE ACT TO CANCEL THE VISA so I hereby cancel the visa’

48                  The Minister, on 17 July 2001, recorded his decision by striking through options (a), (b) and (c) and leaving option (d) to stand as a record of his decision to exercise the discretion conferred by s 501(2) to cancel the appellant’s visa.

The contentions of the parties on the reasoning at first instance

(a)        The submissions of the appellant

49                  On behalf of the appellant it was contended that Direction No 17 had been applied by the Minister in such a way as to constitute an impermissible fetter on the discretion reposed in him by s 501(2).  That was because the Direction precluded an individual “other consideration” from being accorded more importance than a “primary consideration”.  The fetter constituted by that stipulation was said to be indistinguishable from that considered by Cooper J in Ruhl v Minister for Immigration and Multicultural Affairs (2001) 184 ALR 401.  In that case his Honour observed, at 408:

‘[32]   In these circumstances it is not a question of whether the Minister was bound by the direction or regarded himself as bound by the direction.  Rather, it is whether the Minister voluntarily applied the provisions of Direction No 17 to his decision-making and thereby unlawfully fettered his discretion under s 501 of the Act.

[33]    In my view it is clear, beyond argument on the material that the Minister voluntarily applied the provisions of Direction No 17 to the exercise of his discretion under s 501 of the Act when he adopted as his own the reasoning contained in the decision record; it is not a mere matter of surmise that he did so.

[34]    It is no answer to submit, as the Minister does, that it was open to him to adopt and apply the substance of Direction No 17 as a matter of policy.  The limits on the development and use of policy were identified by Brennan J in Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 640-641.’

50                  His Honour went on to indicate that, on the facts before him, the Minister’s decision was not distinguishable from that considered by Dowsett J in Aksu v Minister for Immigration and Multicultural Affairs (2001) 65 ALD 667.  In that context Cooper J observed, at 409 [35];

‘In the present case there was material before the Minister to indicate that he was not bound to apply the direction.  However, he was encouraged to do so for reasons of consistency of approach.  Having applied the direction the relevant issue in both Aksu and the present case  is whether the application of the direction fettered unlawfully the exercise of the discretion.’

51                  After setting out an extensive passage from the judgment of Dowsett J in Aksu, Cooper J concluded at 410 [37]-[40];

‘[37]   I agree with Dowsett J for the reasons that he has given that Direction No 17 is “inconsistent with the intention contained in s 501 that the discretion be unfettered”. 

[38]    I agree with Dowsett J that Direction No 17 and the Ministerial Direction issued on 21 December 1998 pursuant to s 499 of the Act, in respect of the exercise of the discretions to deport under ss 200 and 201 of the Act, are materially different and that Direction No 17 operates to limit the exercise of discretion in a way not provided for in the 1998 direction.  For that reason the decisions in Bustescu v Minister for Immigration and Multicultural Affairs [1999] FCA 1713 and Lau v Minister for Immigration and Multicultural Affairs [2000] FCA 698 are not determinative of the issues in the present case.

[39]    In the present case as appears from the decision record and the Minister’s correspondence, the Minister has not merely chosen to place more weight upon the primary considerations than upon the other matters having regard to the facts of the case.  He has accorded pre-eminence to the primary considerations and denied the possibility that the other matters particular to the circumstances of the applicant were entitled to greater importance than a primary consideration in the exercise of an unfettered discretion under s 501 of the Act.  He has adopted this course because he applied the policy contained in Direction No 17 which directed such an approach to the exercise of the discretion.

[40]    In my view, the fettering of the discretion constituted an error of law for the purposes of s 476(1)(e) of the Act.’

52                  It was also contended at first instance on behalf of the present appellant that the failure to list in the briefing note all the “other considerations” identified in Direction No 17 had given “greater emphasis to the pre-eminence accorded to the primary considerations.”  However, that contention seemed to the learned primary Judge not to take the appellant’s principal submission any further.  Her Honour then noted that Cooper J in Ruhl (supra) had adopted the reasoning of Dowsett J in Aksu (supra) but pointed out at [30] of her reasons:

‘The question whether the primary considerations would be applied to the disadvantage of the non-citizen in every case was considered by Whitlam J in Turini v Minister for Immigration & Multicultural Affairs [2001] FCA 822 (‘Turini’).  His Honour expressed disagreement with the view in Aksu, that the primary considerations in the Direction are direct outcomes of a person failing to satisfy a decision-maker that they pass the character test.  His Honour went on (at [29]):

“…First of all, the third of the primary considerations may not be ignored, although it may have no application in some cases.  More importantly, the factors relevant to the first primary consideration are not exclusively stated in paragraph 2.5 of the direction, as the word “include” indicates.  A person may not pass the character test and yet be able to demonstrate that he or she presents no risk to the community.  In my opinion, there is ample scope for an individual’s particular circumstances to be advanced under the rubric of the primary considerations so that the balancing process mandated by Direction No 17 will not fetter the discretion under s 501(1) of the Act.”’

It was further noted in the reasons below that Drummond J in Jahnke v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 268 had agreed with Dowsett J in Aksu that par 2.2 of Direction No 17 imposed an unlawful fetter because in no case could a non-primary consideration, telling against the cancellation of a non-citizen’s visa, be given more weight that the three primary considerations.  The learned primary Judge then continued, at [32]-[34]:

‘[Drummond J] however did not agree with all the reasoning in Aksu and agreed with Whitlam J in Turini that the primary considerations are not necessarily ‘direct outcomes’ of a person failing to pass the character test.  A conclusion was not inevitable that there would be an unreasonable risk if the person remained.  A consideration of the first two primary considerations might favour non-cancellation.

Accepting the reasoning in Turini as correct, it would follow that the application of the Direction in every case might not have the effect of limiting the range of discretion conferred by s 501(2) which would amount to a fetter upon the discretion:  Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 640-641.  Even accepting that most offences requiring a sentence of twelve months or more of imprisonment might be regarded as serious, it may nevertheless be shown that the non-citizen does not present a risk.  Where children are involved, a decision-maker might be persuaded that their best interests outweigh the risk to the community, though much might depend on the level of that risk.  It may further be observed that, whilst no one non-primary consideration can prevail over a primary consideration, this might not preclude a number of them having that effect.

It may be therefore that the Direction will not operate to the extent predicted in Aksu.  ……’

53                  The learned primary Judge detected a difference in the approach taken to Direction No 17 by the earlier authorities which she had canvassed as summarised above and that of another Full Court of this Court in Madafferi v Minister for Immigration & Multicultural Affairs (2002) 118 FCR 326.  It was first noted that the Full Court in Madafferi had observed, at [99]:

‘The language of the Direction and the range of factors it requires to be taken into account is so broad that it is difficult to see how, even when treated as binding on officers of the Department, it could be said to fetter their discretion. It is not binding on the Minister. It was submitted for Mr Madafferi, however, that the vice in the Direction is that it codifies the weight to be given to three primary considerations to the extent that no other consideration such as the effect on the family unit or the fact that the offences were committed before arrival and other matters can ever prevail.’

Her Honour then set out this description by the Full Court at [103] of the effect of the language used in Direction No 17:

‘… The primary considerations are so broadly expressed as hardly to exclude the consideration of virtually all relevant factors. To the extent that matters personal to the applicant or other factors may be thought to have fallen outside the scope of these considerations, it is useful to return to the terms of par 2.17. In respect of matters other than "primary considerations" it is accepted that they may be relevant and that where relevant "it is appropriate that these matters be taken into account but that they be given less individual weight than that given to the primary considerations". The term "appropriate" does not preclude a different relative weighting being given to those matters. Nor does it preclude their combined weight from overcoming the primary considerations.’

From that analysis the learned primary Judge was led to conclude at [38] of her own reasons:

‘It is plain enough that a Full Court has held that the application of the terms of Direction No 17 does not have the effect of fettering the exercise of a discretion whether to cancel a visa.  The reasoning applies with equal force to the discretion under s 501(2) and I am obliged to apply it.  I do however have some difficulty with the notion that there is no policy of weighting in pars 2.2 and 2.17 of the Direction or that the reference to it being ‘appropriate’ to take matters into account overcomes the requirements as to weighting.’

54                  It can be seen, therefore, that, although she had some reservations about the cogency of the Full Court’s reasoning in Madafferi, her Honour considered herself bound to follow that authority and conclude that the application by the Minister of Direction No 17 did not constitute an impermissible fetter on the discretion conferred on him by s 501(2) of the Act.

55                  In any event, her Honour was able to find a significant difference between the language of the present briefing memorandum and that in the corresponding memorandum which had proved fatal to the exercise of the discretion in Ruhl (supra).  That difference was identified as follows in the concluding paragraph after which her Honour indicated that the application would be dismissed with costs:

‘43       In Ruhl, it seems to me, there was no doubt but that particular weight had to be given to primary considerations.  In the present case it was made plain that the respondent was not bound by the Direction.  Further, whilst par 2.17 was later referred to in the briefing note, the respondent was aware that he was free to place such weight on the factors referred to in the Direction as he considered appropriate.  Those factors included both primary and other considerations.  There is nothing in the reasoning which follows in the briefing note, as to the various factors, which suggests that primary considerations were accorded greater weight, either as between themselves or over the other considerations identified as relevant.  It does not therefore seem possible to conclude that the Minister’s discretion was affected by any policy of weighting contained in the Direction.’

56                  After reviewing the authorities, most of which have been discussed above, Counsel for the appellant, in his written submissions, referred to another judgment of a Full Court of this Court in Howells v Minister for Immigration and Multicultural Affairs [2004] FCAFC 327 (“Howells”) the reasons in which were published on 16 December 2004 after the orders presently under appeal had been pronounced.  In [128]-[129] and [134] of the joint reasons in Howells, the Full Court observed;

‘We agree with those authorities which have held that Direction No. 17 does purport to fetter the discretion of the decision-makers to whom it is directed.  Accordingly, we disagree with Whitlam J’s decision in Turini.

However, that is not an end of the matter as the judges in the earlier cases have recognised that wherever the Minister exercises the power under s 501, after having been directed to the Minister’s own direction in Direction No. 17, it will be a question of fact whether the Minister has proceeded in a way that demonstrates that the Minister has fettered the Minister’s own discretion.

………

In our opinion, this case is like that considered in Javillonar and there is no evidence that the Minister has wrongly assumed that he was bound by Direction No. 17 or wrongly proceeded upon the basis that he was so bound.’

57                  It has been acknowledged in the written submissions on behalf of the present appellant that [5] of the briefing papers in the present case which has been reproduced at [44] of these reasons was in identical terms to [6] of the briefing paper considered in Howells, and expressly instructed the Minister that he was not bound by Direction No 17.

58                  Nevertheless, the appellant’s written submissions went on to contend that the Minister in the present case had unlawfully fettered his discretion in precisely the same way as had occurred in Ruhl.  It was said that, despite the caveats in the briefing paper which was adopted as the decision record that “you are not bound by your s 499 Directions” and that “in balancing the relevant factors in this case, you are free to place whatever weight you regard as appropriate on those factors”, the Minister had voluntarily applied Direction No 17 according to the suggestions in the briefing paper and including the instruction that “other considerations” should be given less individual weight than that given to the primary considerations.  That “voluntary” application by the Minister was said to have fettered unlawfully the exercise of what Drummond J in Jahnke (supra) at 274 [17] had called “the generally worded discretion conferred on the Minister by s 501(2)”. 

59                  Particular emphasis was placed on behalf of the appellant on the reasoning of Drummond J in Jahnke at 272 [14] which led to this statement of his Honour’s conclusion;

‘In this state of the evidence before the Court, I therefore infer that, in making his decision to cancel the visa, the Minister adopted the approach to weighting, in balancing the primary and other considerations, that was set out in pars 2.2 and 2.17 of the Direction and recommended to him in pars [5] and  [31] of the memorandum.’

60                  Counsel for the appellant stressed that [31] of the briefing paper was identical in terms to [34] of the briefing paper in the present case and the corresponding paragraph, also numbered [34], which was discussed by Dowsett J in Andary v Minister for Immigration and Multicultural Affairs [2001] FCA 1544 where his Honour had followed Aksu, Ruhl and Jahnke  and had declined to apply the reasoning of Whitlam J in Turini v Minister for Immigration & Multicultural Affairs [2001] FCA 822.

61                  It was acknowledged on behalf of the appellant that certain parts of the briefing paper in the present case differed from the corresponding parts of the paper considered in each of Ruhl, Jahnke and Andary (supra).  However, the differences were submitted not to matter.

62                  In each of the earlier cases, [5] of the briefing paper contained an express statement advising the Minister that he “should consider the guidelines in your Direction No 17”.  However, the paper went on to say that the Minister was not bound by the Direction but that it was a useful guide.  By contrast, the corresponding advice to the Minister in the briefing paper in the present case contained no affirmative assertion that he should consider the guidelines in Direction No 17 and expressly recited that the Minister was not bound by Direction No 17 but it was a useful guide and “it was open to you to be guided by the factors set out in the Direction.  However, in balancing the relevant factors in this case, you are free to place whatever weight you regard as appropriate on those factors.”

63                  Counsel for the appellant contended that the learned primary Judge had erred in considering herself bound by the judgment of the Full Court in Madafferi (supra), because in that case the Minister had given a detailed statement of reasons which permitted a different finding of fact.  The finding which, it was submitted, should have been made in the present case on facts indistinguishable from those in Ruhl, Jahnke and Andary was that the Minister had regarded himself as bound to apply Direction No 17 and that amounted to an error of law.

(b)        Submissions of the respondent

64                  It was first contended on behalf of the Minister that the learned primary Judge had been correct in holding, following Madafferi, that Direction No 17 did not constitute an unlawful fetter on the discretion entrusted to a decision-maker.  To the extent that the later Full Court judgment in Howells suggested to the contrary, it was said to be wrong and not to be followed.  Counsel for the respondent relied, in this context, on Surinakova v Minister for Immigration and Local Government and Ethnic Affairs (1991) 33 FCR 87 where Hill J observed, at 45;

‘There can be no challenge to a decision merely because a decision was made in accordance with a policy. To ensure consistency of administrative decision-making, it will often be appropriate for a policy to be issued containing guidelines. The policy of the Minister, to which I have referred, is one such example. However, a decision-maker must take care to ensure that he does not slavishly follow a policy…….’

65                  Reference was then made to the second of the extracts from the judgment of the Full Court in Madafferi which has been reproduced at [53] of these reasons.  However, reliance on those passages seems to us to beg the question which lies at the heart of the present case, which is not so much whether Direction No 17 properly understood fettered the Minister’s discretion, but whether the Minister, on a fair reading of the decision record as a whole applied Direction No 17 as if it bound him to give a particular effect to certain considerations.  Specifically, did the Minister proceed on the footing that no individual “other consideration” could be allowed to outweigh a “primary consideration”?

66                  In the alternative, Counsel for the Minister submitted that the learned primary Judge was correct in holding that it was not possible to conclude that the Minister’s discretion had been affected by any policy of weighting contained in Direction No 17.  Just as occurred in Howells, the present circumstances were like those considered in Javillonar v Minister for Immigration and Multicultural Affairs (2001) 114 FCR 311.

67                  There was no evidence that the Minister had assumed that he was bound by Direction No 17 or had proceeded on that assumption.  The evidence internal to the decision record supported the view that the Minister understood that the balancing of the factors identified in the Direction was a matter for him and he was free to accord to individual factors whatever weight he thought appropriate.  Nor was there anything in the record to suggest that primary considerations had been given greater weight, either as between themselves, or over the other considerations identified as relevant.

Resolution of the issues.

68                  As the submission of the parties became refined in the course of oral argument, it became apparent that the resolution of this appeal turned on the answers to be given to two questions thrown up by the authorities on the effect of Direction No 17. 

(i)        If Direction No 17 is applied according to its terms, does it constitute an impermissible fetter on the Minister’s discretion?

69                  Support for an affirmative answer to this question is supplied by the analysis of Cooper J in Ruhl (supra) where his Honour made the observations at 410 [39]-[40] which are set out at [51] above.

70                  In Javillonar (supra) Stone J followed Ruhl and Aksu which is discussed below, observing, at 321 [41]-[42];

‘As indicated above, however, it is my view that the relevant statement in Direction 17 is not susceptible of two interpretations and therefore neither the above principle nor s 46(1)(b) apply here.  In my opinion both Aksu and Ruhl are correct in their interpretation of Direction 17.

When coupled with the obligation imposed by s 499(2A) of the Act (see [10] above), the view that the provisions of Direction 17 are inconsistent with the unfettered exercise of discretion by a decision-maker creates a strong presumption that the decision-maker has made an error of law within s 476(1)(e). However this does not apply to a decision made by the Minister who, for reasons set out in [28] above, is not subject to s 499(2A). For the applicant to succeed it would be necessary to show, not merely that the Minister was guided by the policy expressed in Direction 17, but that in making his decision the Minister attributed weight to factors in accordance with Direction 17 without independent consideration.’

71                  In Aksu (supra), Dowsett J carefully examined the terms of Direction No 17 and concluded, at 674 [24];

‘It is one thing to say that some factors should generally be treated as more important than others.  This is the situation with which Sackville J was concerned in Bustescu.  It is quite another thing to say that a particular consideration must always be treated as at least equally important as another consideration without regard to the facts of the case.  Section 501 prescribes failure to satisfy the character test as a condition precedent to the exercise of the discretion to refuse or cancel.  It does not create any presumption as to the way in which that discretion should be exercised.  The unfettered nature of the discretion inevitably implies that in particular circumstances any one factor may, at least theoretically, outweigh any other possibly relevant factor.’

72                  After reproducing at some length certain observations of Sackville J in Bustescu v Minister for Immigration and Multicultural Affairs [1999] FCA 1713, Dowsett J resolved this question by holding, at 675 [28]-[29];

‘As I understand it, his Honour did not determine that the Direction was valid, but that any invalidity was irrelevant to the case under consideration.  However his Honour’s observation that it would be open to a decision-maker to find that hardship might be so great as to outweigh serious criminal misconduct cannot apply under the regime prescribed by Direction no 17, given that “… no individual considerations can be more important than a primary consideration.”  Sackville J strongly implied in Bustescu that the language of that Direction was difficult to construe in a way which would justify its validity.  In my view, Direction no 17 goes further.  It is inconsistent with the intention contained in s 501 that the discretion be unfettered.  See also Lau v Minister for Immigration and Multicultural Affairs [2000] FCA 698, par 29.

This conclusion does not dispose of the present question.  It is still necessary to determine whether or not the Minister’s use of the Direction was such as to deprive his decision of validity.  One would normally seek to answer that question by reference to his reasons. … …’

73                  Whitlam J concluded to the contrary in Turini (supra).  In that case, after reproducing a passage from Dowsett J’s judgment in Aksu which included [24] quoted at [71] above, Whitlam J then noted that Dowsett J’s decision had since been followed by Cooper J in Ruhl.  However, his Honour continued at [29]-[30];

‘As a matter of judicial comity, I am naturally inclined to follow the decision in Aksu, but I regret to say that I think it is wrong.  I do not agree that the primary considerations are “direct outcomes” of a person failing to satisfy a decision-maker that the person passes the character test.  First of all, the third of the primary considerations may not be ignored, although it may have no application in some cases.  More importantly, the factors relevant to the first primary consideration are not exclusively stated in paragraph 2.5 of the direction, as the word “include” indicates.  A person may not pass the character test and yet be able to demonstrate that he or she presents no risk to the community.  In my opinion, there is ample scope for an individual’s particular circumstances to be advanced under the rubric of the primary considerations so that the balancing process mandated by Direction No. 17 will not fetter the discretion under s 501(1) of the Act.

It follows that, in my view, Direction No. 17 was a valid direction under s 499(1) of the Act, with which the Tribunal was bound to comply.  Accordingly, it was bound to take account of the likelihood of re-offending in assessing the risk to the community posed by the entry of the applicant’s wife to Australia.  … …’

74                  It should be noted that Whitlam J in that case was considering a review by the Administrative Appeals Tribunal of an exercise of discretion by a delegate of the Minister and not by the Minister personally.  In the second place, his Honour’s conclusion on whether Direction No 17 constituted an impermissible fetter on the discretion was obiter because he held that the Tribunal had failed to take into account an aspect of a primary consideration identified by Direction No 17 and, accordingly, set aside the Tribunal’s decision affirming the delegate’s refusal of a visa.  Moreover, although his Honour quoted [22] and [23] from Dowsett J’s reasons in Aksu, he did not find it necessary to explain why the stipulation in Direction No 17 that a single “other consideration” was never to be allowed to outweigh a primary consideration, did not amount to an impermissible fetter on the discretion.  For these reasons, we are not persuaded that Whitlam J was correct insofar as he can be regarded as having declined to follow Aksu and Ruhl.

75                  In Jahnke (supra), Drummond J referred to Aksu and Ruhl and concluded, at 274 [17];

‘I also agree with Dowsett J in thinking that this provision in Direction No. 17 is an unlawful fetter on the generally worded discretion conferred on the Minister by s 501(2).  When his Honour described the discretion conferred by s 501 as “unfettered”, he must, I think, be understood as saying that it was not fettered by any express limitation.  It is well-established that a statutory discretion which in its terms is unconfined  must, nevertheless, be exercised by reference to considerations identified by implication from the subject matter, scope and purpose of the statute.  See Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39 - 40.  The vice in the provision in question in the Direction is that it is an express fetter on the discretion conferred by s 501(2).  As a matter of construction of the section, the Minister retains a discretion under s 501(2) not to cancel a visa even though the visa holder has committed an offence or offences that have attracted the severest punishment imposable.  … …’

76                  Drummond J then noted the views expressed by Whitlam J in Turini but continued, at 276 [21];

‘… …In some cases, proper effect may be able to be given to an individual’s particular circumstances within the first two primary considerations, as Whitlam J suggests.  But that will not always be the case.  There may be cases in which evaluation of the circumstances relevant to the first two (or even to all three) primary considerations may, with varying degrees of cogency, favour visa cancellation, but one or more non-primary considerations may so strongly favour non-cancellation as properly to be regarded as requiring that result; yet the decision-maker who is bound by, or who as Minister voluntarily applies, the Direction would be prevented by the fetter on the statutory discretion contained in par 2.2 of the policy from declining to cancel the visa.’

77                  In Andary (supra) Dowsett J, at [28], saw no reason to depart from the views which he had earlier expressed in Aksu and concluded, at [39], after a careful examination of the briefing paper;

‘It is difficult to avoid the conclusion that the Minister also did so in the present case.  He adopted the reasoning advanced in the briefing paper which was itself based upon direction 17.  The facts of the case were considered following the structure prescribed in the direction, with particular emphasis upon the primary considerations.  As to “other considerations”, the briefing paper refers to the Government’s view as to the relative weight of such matters (less individual weight than that given to the primary considerations) and then sets out the various matters referred to in the material put before the Minister by the applicant and by those supporting him.  It is significant that pars 44 and 45 indicate that other relevant considerations and matters raised by or on behalf of the applicant have been “addressed in line with the Direction”.  There can be little doubt that the Minister has voluntarily applied the approach prescribed in direction 17 to his consideration of the present case.  As I observed in Aksu the prescription of the relative weights to be attributed to classes of relevant considerations effectively prevents an unfettered assessment of the case. Whilst the Minister would inevitably attribute appropriate weight to relevant considerations according to his own perceptions of the case, it was not permissible simply to adopt the relative weights prescribed by direction 17.’

78                  His Honour then adopted, as expressing his own views, passages which we have already reproduced from Ruhl and Jahnke and distinguished Javillonar on its facts. 

79                  Mr Bickford of Counsel for the Minister has pointed out that the effect of Direction No 17 appears to have been considered on three occasions by Full Courts of this Court.  In Awa v Minister for Immigration and Multicultural Affairs (2002) 189 ALR 328, the Full Court (Spender, R D Nicholson and North JJ) reviewed the decisions at first instance in Javillonar, Jahnke, Ruhl, Turini, Andary and Aksu which have been canvassed earlier in these reasons.  At 336 [23] of the joint judgment in Awa, the Full Court noted that “the respondent did not appeal any of the abovementioned single judge decisions concerning the application of directions No 17.”  However, their Honours found it unnecessary to express a concluded view on the correctness of the earlier line of authority because, as they observed at 339 [37];

‘In our opinion the resolution of this appeal does not require any decision in relation to the validity of Direction No.17 or conclusion of the issue whether the whole or part of the Direction fetters the discretion in s 501(1) of the Act, these being the two questions of law raised in the notice of appeal.  This is because we consider that the appeal falls for resolution in its own factual circumstances.  (In any event the issue of the new substituted Direction on 23 August 2001 renders further obiter on the issues contended for on behalf of the appellant otiose in respect of exercises of the relevant discretion after that date).  In our view a proper reading of the reasons of the Tribunal shows that the Tribunal did in fact engage in a balancing exercise.  We accept that in par 6 the Tribunal ascribed weight to the Pt 1 factors.  It then proceeded to ascribed weight to the Pt 2 factors.  In its conclusion in par 7(e) it reached the view that the “not substantial” value which it had accorded to the degree of hardship to the appellant could not outweigh the “serious” character of the primary considerations.  While the Tribunal did not use language which may have more expressly evidenced an act of balancing, it is apparent from consideration of these paragraphs in the context of all the reasons including those characterising the actions of the visa applicant in relation to the primary considerations, that the Tribunal did in fact balance the considerations.’

80                  We infer that, had it been necessary to decide the matter, the Full Court in Awa would have taken the preponderant view discernible from the authorities at first instance that for a decision-maker to apply Direction No 17 without qualification would be an impermissible fetter on the discretion. 

81                  As already noted, the learned primary Judge in the present case was inclined to regard another Full Court (French, O’Loughlin and Whitlam JJ) in Madafferi (supra) as having held that “the application of the terms of Direction No 17 does not have the effect of fettering the exercise of a discretion whether to cancel a visa.”  However, immediately before the passage from [103] of the reasons of the Full Court which her Honour set out and which is reproduced at [53] above, the Full Court in Madafferi had indicated that the earlier Full Court in Awa had expressed no view on the effect of Direction No 17 standing alone and had quoted the sentence in the middle of the extract at [79] above that “In our view a proper reading of the reasons of the tribunal shows that the tribunal did in fact engage in a balancing exercise.”  The Full Court in Madafferi then continued, at [103], (emphasis added);

‘In this case the Minister did likewise.  He was entitled to take the approach he did.  It was consistent with the proper exercise of his discretion under s 501A.’

82                  It follows that the Full Courts’ reflections in Madafferi about the effect of the word “appropriate” were not part of the ratio of that decision.  In our opinion, when regard is have to the statement “it is the Government’s view …..” which prefaces the sentence in par 2.17 of Direction No 17 in which the word “appropriate” occurs, the paragraph was intended to lay down a rule of general application to the comparative weighting of primary considerations and other matters.  That is consistent with the relevant meanings of “specially suitable, proper” ascribed to the word by the Shorter Oxford English Dictionary 3^rd Edn p 94.  At least, the intent of the paragraph is sufficiently ambiguous to warrant a court’s inquiring into how a particular decision-maker has understood and applied it.

83                  In the most recent Full Court judgment on the effect of Direction No 17, Howells, it was noted, at [113], that;

‘The primary advice in Ruhl was also different from that offered in this case.  In Ruhl the Minister was advised that he was not bound by Direction No. 17 ‘on character’, not that he was not bound at all.  He was not advised, as he was in making his decision the subject of this appeal, that he was free to place whatever weight he regarded as appropriate on the factors referred to in Direction No. 17.’

84                  After referring to all of the decisions at first instance which have been canvassed above, the Full Court in Howells continued, at [122] et seq;

‘122     Except for Turini v Minister for Immigration & Multicultural Affairs, the decisions at first instance stand for the proposition that Direction No. 17, in its terms, insofar as it commands obedience from the Minister’s delegates or bodies having functions or powers under the Act, fetters the unfettered discretion given to those persons or bodies to whom the direction is given.

123      In our opinion, those decisions are correct.  Direction No. 17, in its terms, does fetter the discretion given to decision-makers to whom Direction No. 17 may be directed in a number of ways.

124      Paragraph 2.2 of Direction No. 17 enjoins the decision-maker to have regard to the three primary considerations, which the direction says cannot be less important than any individual considerations.

125      The primary considerations referred to in Direction No. 17 are matters to which the decision-makers would ordinarily have regard.  But, so also would the decision-maker have regard to the individual considerations applying to the applicant for a visa or the visa holder.  It may be that in some cases the individual considerations would outweigh the primary considerations.  Insofar as Direction No. 17 requires the decision-maker to give greater weight to the primary considerations, Direction No. 17 fetters the discretion given to that decision-maker.

126      The last sentence of paragraph 2.2 does not save the direction.

127      Moreover, the direction, read as a whole, does not recognise that the decision-makers, to whom the direction is delivered, have an unfettered discretion subject to the policy of the Act which should be exercised having regard to all of the relevant circumstances.  The weight which is to be given to any particular matter is a matter for the decision-maker and cannot be the subject of some ritualistic formula.

128      We agree with those authorities which have held that Direction No. 17 does purport to fetter the discretion of the decision-makers to whom it is directed.  Accordingly, we disagree with Whitlam J’s decision in Turini.

129      However, that is not an end of the matter as the judges in the earlier cases have recognised that wherever the Minister exercises the power under s 501, after having been directed to the Minister’s own direction in Direction No. 17, it will be a question of fact whether the Minister has proceeded in a way that demonstrates that the Minister has fettered the Minister’s own discretion.

130      Ordinarily, the Minister’s reasons will disclose whether the Minister has proceeded in a way inconsistent with an unfettered discretion.  However, where the Minister has not given reasons, as in this case, whether or not the Minister has fettered the Minister’s own discretion must be determined by reference to the minute which has been provided to the Minister, and any other surrounding circumstances relevant to the question of how the Minister has exercised the discretion.’

85                  Curiously, no reference is made in the joint reasons in Howells to either of the earlier Full Court judgments in Awa and Madafferi.  It is not clear whether those judgments were cited in argument before the Full Court in Howells although both were mentioned by R D Nicholson J at first instance ([2004] FCA 530) where his Honour observed, at [39]-[40];

‘It has earlier been set out in these reasons that par [6] of the Minute referring to the issue of discretion advised the Minister that in balancing the relevant factors in the case he was free to place whatever weight he regarded as appropriate on those factors.  I agree with the submission for the respondent that it cannot, in those circumstances, be inferred that the respondent in this case misunderstood or fettered his discretion by regarding primary factors to be given weight outweighing other factors or failure to give weight to other factors.  He was very clearly instructed that he was free to place whatever weight he regarded as appropriate on the factors which he regarded as relevant. 

Furthermore, as a question of fact the notice to the applicant of intention to cancel his visa, while referring to Direction No 17, clearly advised the applicant that he could provide any further information, apart from information addressing considerations listed in the Direction, which the applicant felt the respondent ought to be aware of and take into account. 

In light of these factual considerations it is unnecessary to examine the decisions in other matters:  cf Madafferi v Minister for Immigration & Multicultural Affairs (2002) 118 FCR 326; Awa v Minister for Immigration & Multicultural Affairs (2002) 189 ALR 328, being decisions of the Full Court and Andary v Minister for Immigration & Multicultural Affairs [2001] FCA 1544; Ruhl v Minister for Immigration & Multicultural Affairs (2001) 184 ALR 401; and Jahnke v Minister for Immigration & Multicultural Affairs (2001) 113 FCR 268.  See also the Full Court decision in Javillonar v Minister for Immigration & Multicultural Affairs (2001) 114 FCAFC 311.’  [sic]

[We assume that his Honour’s last reference was intended to be to the decision at first instance of Stone J reported at (2001) 114 FCR 311 as it does not appear that Javillonar went on appeal.]

86                  Since the Full Court in Howells took the same view on the question of fact identified at first instance by R D Nicholson J in the passage just quoted, it is likely that it shared his assessment that it was “unnecessary to examine the decisions in other matters” including Madafferi and Awa. 

87                  For the reasons explained below, we consider that the same factual question arises in the present case and should be resolved in the same way.  We are therefore content to proceed from the same provisional premise as the Full Court in Howells, that Direction No 17 standing alone did constitute an impermissible fetter on the Minister’s discretion. 

(ii)       If yes to (i), did the Minister, in fact, regard Direction No 17 as fettering his discretion? 

88                  In this case, we are faced with the same difficulty as confronted the Court in Howells, namely that the Minister has not furnished any reasons for his decision.  However, an omission by the Minister to furnish reasons has been held by a Full Court of this Court in Minister for Immigration and Multicultural Affairs v W157/00A (2002) 125 FCR 433 not to amount to jurisdictional error.  In that case, because it was not possible for the Court to identify the reasons for the Minister’s decision, the Court was unable to determine whether the best interests of the respondent’s children had been taken into account as a primary consideration or otherwise.  The Court therefore could not conclude that the Minister had failed to address the right question or deal with the matter according to law so as to give rise to a jurisdictional error of law.  In the present case, the appellant had the benefit of legal representation but did not request, or seek an order for, the provision of reasons.  (An order of that kind was sought in Howells but was refused by R D Nicholson J on discretionary grounds).  On the hearing of the present appeal, Mr Hamlyn-Harris of Counsel for the appellant frankly acknowledged that at first instance “there was some discussion in the course of submissions about whether or not the appellant would want to ask for reasons and, if I recall again, I indicated to her Honour that I did not wish to ask for reasons.”  The appellant therefore made a deliberate forensic choice to conduct his case on the basis that the Minister’s reasons were to be gathered by inference from the terms in which his decision was expressed, the contents of the briefing paper and the related circumstances.  Accordingly, the answer to this second question, as the Full Court in Howells indicated at [130] quoted at [84] above, “must be determined by reference to the minute which has been provided to the Minister and any other surrounding circumstances relevant to the question of how the Minister has exercised the discretion.”

89                  Mr Hamlyn-Harris also acknowledged that there were differences between the briefing paper in this case and those examined in the cases discussed above in which the Minister was held to have improperly allowed Direction No 17 to fetter the discretion conferred by s 501(2) of the Act.  Nevertheless, he urged that the salient features of the circumstances in this case supported a similar conclusion.  He pointed to the fact that the briefing paper claimed to reflect “the Government’s view”.  However, apart from direct quotations from sub-pars 2.6 and 2.7 of Direction No 17 which were prefaced by the words “it is the Government’s view ……”, the only statement in the briefing paper itself which purported to recite “the Government’s view” was in [34] quoted at [45] of these reasons.  We do not regard that paragraph, in its context, as indicating that one of the “other considerations” could never be given more weight than a primary consideration.  It is a direct repetition of sub-par 2.17 of Direction No 17 which is cast in more discretionary, and less peremptory, terms than sub-par 2.2 of the same Direction which is reproduced at [43] above.  Moreover, the Minister was reminded in the briefing paper to the effect set out at [41] of these reasons.  Accordingly, we are not persuaded that the Minister was induced by the references in the briefing paper to the “Government’s view” to apply the policy enunciated in Direction No 17 slavishly and without regard to particular aspects of the appellant’s case. 

90                  In a similar way, Counsel for the appellant pointed to references in the briefing paper to “expectations of the Australian community.”  Those references occurred in this passage from the briefing paper;

‘The Expectations of the Australian Community

[18]    Paragraph 2.12 of the Direction states:

The Australian community expects non-citizens to obey Australian laws while in Australia.  Where a non-citizen has breached, or where there is a significant risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to refuse the visa application or cancel the visa held by such a person.  Visa refusal or cancellation and removal of the non-citizen may be appropriate simply because of [sic] the nature of the character concerns or offences are such that the Australian community would expect that the person would not be granted a visa or should be removed from Australia.

[19]    The offence committed by Mr SHAW is considered by the Government to be very serious.  The Australian community expects non-citizens to obey Australian laws while in Australia and therefore it is open for you to find that the character concerns or offence are such that the Australian community may expect that Mr SHAW should be removed from Australia.’

91                  We doubt, with respect, whether that passage was capable of affording much guidance at all to the Minister.  That “the Australian community expects non-citizens to obey Australian laws while in Australia” is a truism which applies equally to citizens as to non-citizens.  In any event, the Minister was told by the briefing paper only that the character concerns or offences relevant to the appellant were such that it was “open to the Minister to find that the Australian community may expect” that the appellant should be removed from this country (emphasis added).  Far from fettering the Minister’s discretion, that advice seems to leave to the Minister both the evaluation of the appellant’s criminal record and the imputation of a community expectation to which it might give rise.

92                  Mr Hamlyn-Harris also pointed to a letter dated 13 October 2000 from the Department to the appellant advising him that consideration would be given to whether or not to cancel his visa under s 501(2) of the Act.  That letter contained this paragraph;

‘In reaching a decision whether or not to cancel, the Minister or his or her delegate will have regard to the matters noted above and the attached Minister’s Direction No. 17 titled “Direction under Section 499 – Visa Refusal and Cancellation under Section 501 Migration Act 1958.”’

93                  We do not regard a statement to that effect, even if it can be inferred that it reflected the Minister’s state of mind when he came to make a decision on the appellant, as indicating an inflexible application of Direction No 17.  Rather, the statement intimates only that the Minister “will have regard to” Direction No 17 as well as “the matters noted above.”  The recitation of those matters does not presuppose that any particular weight would be given to them either generally or by contrast with other factors which the appellant may have wished to advance.  Moreover, the Full Court in Howells did not consider a passage in the same terms in a Departmental letter to have had the effect contended for by the appellant.  It follows that the Departmental letter does not support an inference that the Minister impermissibly considered his discretion to have been fettered by Direction No 17. 

94                  Similar reasoning supports our inability to base the requisite inference on the statement in the record of the Minister’s decision reproduced at [47] above, that “I have considered all relevant matters including ……….. (2) the Minister’s Direction under s 499 of the Act ………”.  The verbs “consider” and “have regard to” connote only that the predicated matter will be taken into account.  Certainly, in the context in which they appear in the briefing paper and the record of decision, those words do not convey that the Minister thought himself bound by Direction No 17 according to its terms. 

95                  It was submitted, apparently in the alternative, by Counsel for the appellant that it should be inferred that the Minister, in exercising the discretion, had taken into account the briefing paper as a whole, presumably as incorporating Direction No 17.  However, that inference argues at least as strongly against, as for, a conclusion that the Minister impermissibly fettered his discretion by applying Direction No 17 as its stood.  For example, the Minister was expressly reminded in [5] of the briefing paper reproduced at [44] above that;

‘It is clear from a number of decisions of the Federal Court that, when you decide a case personally, you are not bound by your s 499 Directions.  In making a decision on this case it is open to you [not, we interpolate “binding on you”] to be guided by the factors set out in the Direction.  However, in balancing the relevant factors in this case you are free to place whatever weight you regard as appropriate on those factors.’

Similar effect, we consider, should be given to [34] of the briefing paper quoted at [45] above which, as we have already noted, reproduces the less peremptory sub-par 2.17 of Direction No 17. 

96                  Counsel for the appellant acknowledged that the concluding four sentences of [5] of the briefing paper in the present case were in identical terms to the corresponding sentences in the briefing paper discussed by the Full Court in Howells at [110] of its reasons which is quoted at [8] of the reasons in that case.  Despite that concession, Counsel urged that, in its relevant aspect, the briefing paper should be regarded as a mere gloss on Direction No 17.  That characterisation has not assisted us in divining whether, or how far, the Minister may have regarded himself as bound by Direction No 17.  A gloss, by definition, is a later comment on, or interpretation of, a passage, but when it is addressed to the author of the original version, there is no reason to suppose that it will be disregarded or thought less authoritative than the text to which it is directed.

97                  It was next contended on behalf of the appellant that the application by the Minister of Direction No 17 offended the principle enunciated by Brennan J in Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 where his Honour said, at 640;

Of course, a policy must be consistent with the statute. It must allow the Minister to take into account the relevant circumstances, it must not require him to take into account irrelevant circumstances, and it must not serve a purpose foreign to the purpose for which the discretionary power was created. A policy which contravenes these criteria would be inconsistent with the statute (see Murphyores Incorporated Ltd v The Commonwealth (1976)136 CLR 1; Drake's case, supra, at 589, and the cases there cited). Also, it would be inconsistent with ss 12 and 13 of the Migration Act if the Minister's policy sought to preclude consideration of relevant arguments running counter to an adopted policy which might be reasonably advanced in particular cases. The discretions reposed in the Minister by these sections cannot be exercised according to broad and binding rules (as some discretions may be: see, eg, Schmidt v Secretary of State for Home Affairs [1969] 2 Ch 149). The Minister must decide each of the cases under ss 12 and 13 on its merits. His discretion cannot be so truncated by a policy as to preclude consideration of the merits of specified classes of cases. A fetter of that kind would be objectionable, even though it were adopted by the Minister on his own initiative. A Minister's policy, formed for the purposes of ss 12 and 13 of the Migration; Act, must leave him free to consider the unique circumstances of each case, and no part of a lawful policy can determine in advance the decision which the Minister will make in the circumstances of a given case.

98                  In our view, reliance on that passage begs the question which has to be decided in the present case.  That is whether the Minister has so truncated his discretion by adherence to Direction No 17 that the decision to be made in this case was determined in advance.  In other words the question is that identified by Hill J in the passage from Surinakova (supra) quoted at [64] above of whether the Minister has “slavishly followed the policy articulated in the Direction”.  It is true that it has been held in the earlier cases which we have canvassed already that adherence to Direction No 17 without more will have that effect.  However, here the factual enquiry ranges beyond the mere terms of Direction No 17 to encompass, at least, the relevant passages in the briefing paper and, we consider, leads to the different result which was arrived at on essentially similar material in Howells.

Conclusion

99                  For the reasons which we have explained, the second of the questions touching on the exercise of the Minister’s discretion must, on the facts, be answered in the negative.  It therefore follows that the appeal should be dismissed with costs.

Associate:

Dated:              3 June 2005