FEDERAL COURT OF AUSTRALIA

Baker v Minister for Immigration and Citizenship [2012] FCAFC 145

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellant is to pay the first respondent’s costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    The primary issue in this appeal is whether the primary judge committed an appellable error in rejecting the appellant’s judicial review application on the basis that his Honour did not accept the appellant’s argument that the Administrative Appeals Tribunal (the Tribunal) had committed one or more jurisdictional errors in rejecting his appeal against a decision to cancel his permanent resident visa under s 501(2) of the Migration Act 1958 (Cth) (the Act). The notice of appeal describes the following two grounds of appeal:

(a)    The learned Judge erred in finding that the Administrative appeals (sic) Tribunal had not failed to address all relevant considerations cumulatively;

(b)    The learned Judge erred in finding that the Administrative Appeals Tribunal had correctly applied the principal (sic) set out in Minister for Immigration & Ethnic Affairs v Ah Hin Teoh (1995) 183 CLR 273.

2    For reasons which are set out below, we consider that the appeal should be dismissed.

BACKGROUND FACTS

3    The appellant was born on 20 December 1979 in Papua New Guinea and is a citizen of that country. When he was approximately seven years old he left Papua New Guinea and has spent most of his formative years in Australia, together with his family.

4    At least at the time of the proceedings below, the appellant’s parents and brother continued to live in Australia. The appellant is not married. He has three children who, for the purposes of the proceedings, were referred as T1, T2 and R. T1 resides with her maternal grandmother. T2 and R reside with their mother, who is not the mother of T1.

5    The appellant has an extensive criminal history. He committed his first offence in 1998. He has been convicted of numerous subsequent offences, some of which have resulted in periods of imprisonment. The appellant has only been employed on two occasions for a total period of 10 months for the whole of his residency in Australia. His criminal record comprises drug offences, public order offences, larceny and other dishonesty offences and some offences involving violence or the apprehension of violence, including convictions for common assault, assaulting police and stalking or intimidating with intent to cause fear of physical or mental harm.

6    The most serious of these offences and the offence for which the appellant was serving a gaol sentence at the time of the proceedings below involved an assault by him on the mother of T2 and R. According to the sentencing remarks, which the Senior Member of the Tribunal recorded in her decision, the appellant entered the victim’s home and assaulted the victim with a blunt instrument which caused a wound to the victim’s back. The child T2, at the time three years old, was present during the assault. The appellant removed T2 from the room and then continued the assault on the victim. The appellant received a sentence of 3 years and 5 months with a non-parole period of 2 years and 6 months. The appellant has drug dependency issues and was undergoing methadone treatment in prison for his heroin dependency.

VISA CANCELLATION AND MINISTERIAL DIRECTION 41

7    The appellant was advised by a letter dated 7 June 2011 from the Department of Immigration and Citizenship that the Minister’s delegate had decided to cancel his visa pursuant to s 501(2) of the Act.

8    Section 501(2) of the Act provides:

(2)    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.

9    Pursuant to s 501(6) of the Act a person is taken not to pass the character test if he or she has a ‘substantial criminal record’. Under s 501(7) a person has a substantial criminal record if he or she has been sentenced to a term of 12 months imprisonment or more, or has been sentenced to two or more terms of imprisonment totalling two years or more.

10    There is a discretion whether or not to refuse or cancel a visa under s 501(2). This discretion must be exercised in accordance with a document entitled ‘Direction [No. 41] – Visa refusal and cancellation under s 501’ (the Direction). The Direction was signed by the Minister on 3 June 2009 and commenced on 15 June 2009. It was made under s 499 of the Act. It applies to and binds all decision-makers performing functions or exercising powers under s 501 of the Act, including the Tribunal (see s 499(2A) of the Act).

11    The key relevant provisions of the Direction may be summarised as follows. First, the Direction describes the objective of the Act as “to regulate, in the national interest, the coming into and presence in Australia of non-citizens” and, in that context, states that the Government seeks inter alia to protect the Australian community from unacceptable risks of harm as a result of criminal activity or other serious misconduct by non-citizens (paragraph 5).

12    Secondly, in order to facilitate those objectives, paragraph 5.2 of the Direction provides what is described as “General Guidance” to decision-makers in performing functions and exercising powers under s 501 of the Act. Paragraph 5.2(2) imposes a requirement that, in reaching a decision on whether or not to cancel or refuse a visa, a decision-maker needs to consider:

(a)    the nature of any harm that the person concerned may cause to the Australian community; and

(b)    the risk of that harm occurring.

13    Thirdly, the Direction acknowledges that exercise of the s 501 power must also be considered in the context of a wide range of factors, “including whether the person began living in Australia as a minor, the length of time the person has been ordinarily resident in Australia and any relevant international law obligations” (paragraph 5.2(3)). Moreover, the Direction states that, in some circumstances, “it may be appropriate for the Australian community to accept more risk where the person concerned has, in effect, become part of the Australian community owing to their having spent their formative years, or a major portion of their life, in Australia” (paragraph 5.2(4)).

14    Fourthly, Part A of the Direction deals with what is described as “the character test”. Paragraph 7 provides:

7.    Overview of the character test

(1)    A visa may be refused if the person does not satisfy the Minister that the person passes the character test. A visa may be cancelled if the decision-maker reasonably suspects that the person does not pass the character test and the person does not satisfy the decision-maker that they pass the character test.

(2)    The character test is set out in section 501(6) of the Act and it provides that a person does not pass the character test in certain, specified, circumstances. Those circumstances are discussed in further detail below.

15    Paragraph 7.1 provides:

7.1    Substantial criminal record

(1)    A person does not pass the character test if the person has a substantial criminal record. The term ‘substantial criminal record’ is defined in section 501(7) of the Act.

16    Paragraph 7.3 provides:

7.3    Not of good character on account of past and present criminal or general conduct

(1)    A person will not pass the character test if the person is not of good character, having regard to their past and present criminal and/or their past and present general conduct.

    Note: See section 501(6)(c) of the Act.

(2)    In considering whether a person is not of good character, all the relevant circumstances of the particular case are to be taken into account, including evidence of rehabilitation and any recent good conduct.

17    It is also relevant to note the following parts of paragraph 7.4.1, which deals with the topic of the significant risk of engaging in criminal conduct in Australia:

7.4.1    Significant risk of engaging in criminal conduct in Australia

(1)    A person does not pass the character test if, in the event that the person were allowed to enter or remain in Australia, there is a significant risk that the person will engage in criminal conduct in Australia.

    Note: See section 501(6)(d)(i) of the Act.

(2)    The reference to criminal conduct must be read as requiring that there is a significant risk of the person engaging in conduct for which a criminal conviction could be recorded.

18    Part B of the Direction is entitled ‘Exercising the Discretion’. It relates to the discretion of the decision-maker whether or not to refuse or cancel a visa under s 501(2). Paragraph 8(1) provides:

8.    When to exercise the discretion

(1)    If, following formal consideration, the person does not satisfy the decision-maker that the person passes the character test, consideration should be given to whether to exercise the discretion to refuse or cancel a visa.

19    Paragraph 9(1) reinforces the obligation of a decision-maker to take into account the “primary considerations in every case”, as well as (where they are relevant) what are described as the “other considerations” set out in paragraph 11 of the Direction. It is also important to note that the obligations imposed by paragraph 9(1) need to be read in conjunction with paragraph 9(2) as this latter provision makes clear that decision-makers should only take into account what are described as “directly relevant considerations”. It is evident that that qualification applies to both primary and other considerations. This is made clear, at least in respect of primary considerations, by reference to the Note which appears immediately below paragraph 9(2). It is convenient to set out paragraph 9 in its entirety:

9.    Taking the relevant considerations in (sic) account

(1)    Consistent with Part 2, paragraph 2 (Part B) of this Direction,

decision-makers must take into account the primary considerations in every case. The other considerations (defined in paragraph 11) should be taken into account where relevant

Note:    The primary considerations are set out in paragraph 10 of this Direction. The other considerations are set out in paragraph 11.

(2)    Decision-makers should only take into account directly relevant considerations.

Note:    For example, when considering a possible refusal where the person is offshore, the decision-maker may only need to take into account some of the primary considerations.

20    The primary considerations are listed in paragraph 10 of the Direction as follows:

10.    The primary considerations

(1)    In deciding whether to refuse to grant a person a visa or cancel a person’s visa, the following (the primary considerations) are to be considered:

(a)    the protection of the Australian community from serious criminal or other harmful conduct, particularly crimes involving violence;

(b)    whether the person was a minor when they began living in Australia;

(c)    the length of time that the person has been ordinarily resident in Australia prior to engaging in criminal activity or other relevant conduct; and

(d)    relevant international obligations, including but not limited to:

(i)    the best interests of the child, as described in the Convention on the Rights of the Child (CROC); and

(ii)    the non-refoulement obligations contained in the Convention and the Protocol Relating to the Status of Refugees (the Refugees Convention), the International Covenant on Civil and Political Rights (ICCPR) and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).

21    The content of each of those primary considerations is then developed at some length in subsequent paragraphs of the Direction. The effect is that consideration has to be given to relevant primary considerations, but also to various other factors bearing upon those primary considerations where relevant. For example, paragraph 10.1 specifically addresses the topic of protecting the Australian community (which is a primary consideration). It expressly requires that “due consideration” is given to the Government’s objectives set out in paragraph 5, including protecting the Australian community from unacceptable risks of harm as a result of criminal activity or other serious conduct by non-citizens. It further provides that the factors which are relevant to assessing the level of risk of harm to the community include both the seriousness and nature of the relevant conduct and the risk that the conduct may be repeated. Both those factors are then further elaborated upon in paragraphs 10.1.1 and 10.1.2 of the Direction.

22    Further factors concerning the remaining “primary considerations” are set out in paragraph 10.2 (dealing with the primary consideration of whether the person was a minor when they began living in Australia); paragraph 10.3 (dealing with the primary consideration of the length of time that a person has been ordinarily resident in Australia); paragraph 10.4 (dealing with international obligations) and paragraph 10.4.1 (which deals specifically with the best interests of a child under the age of 18 years). Paragraph 10.5 then sets out no less than 15 individual “factors” which “are to be considered” in considering the best interests of a child.

23    Paragraph 11 of the Direction deals with what are described as the “other considerations”. It relevantly provides:

11.    Other considerations

Note: These are not primary considerations.

(1)    In reaching a decision on whether to refuse or cancel a visa, other considerations, although not primary, may be relevant and, if so, must be considered.

(2)    It is appropriate that these considerations, where relevant, must be taken into account but, generally, they should be given less weight than that given to primary considerations.

(3)    These other considerations include:

(a)    family ties, the nature and extent of any relationships:

(i)    the extent of disruption to the person’s family,

    …

(Emphasis added.)

24    Paragraph 11 not only identifies various “other considerations”, it goes on to identify what might be described as various factors impacting on those “other considerations” which also have to be considered. For example, paragraph 11(A), which appears immediately below the “other considerations” concerning family ties and the nature and extent of any relationships, also requires “to be considered” such factors as “the nature and duration of the relationship”.

25    It is relevant to note that, although the Direction expressly requires a decision-maker to take into account the primary considerations which are directly relevant considerations and such of the other considerations as are relevant (while generally giving the latter less weight than the former), it is silent on the question whether and, if so, to what extent the various primary and other considerations need to be weighed cumulatively.

TRIBUNAL’S DECISION

26    The central issue before the Tribunal was whether or not the discretion under s 501(2) of the Act should be exercised to cancel Mr Baker’s visa. As noted above, in carrying out that task, the Tribunal was obliged to apply the Direction. For the purposes of the appeal, it is also important to note that in [7] of her reasons, the Senior Member expressly acknowledged that the Tribunal had to take into account both relevant primary considerations and relevant other considerations as set out in the Direction.

27    The Tribunal considered the nature and seriousness of Mr Baker’s conduct, including his extensive criminal record. It then gave detailed attention to each of the relevant primary considerations, other considerations and related factors as required by the Direction. In assessing the primary consideration concerning the protection of the Australian community from serious criminal conduct, the Tribunal noted that violent crimes were of special concern and it also gave detailed consideration to matters bearing upon the nature and seriousness of Mr Baker’s conduct. The Tribunal then turned its attention to the risk that Mr Baker’s past criminal conduct might be repeated, including by reference to the various factors set out in paragraph 10.1.2(2) of the Direction. Having regard to all those matters, the Tribunal concluded that “the first primary consideration strongly favours the cancellation of Mr Baker’s visa”.

28    The Tribunal then proceeded to discuss at some length and sequentially the other primary considerations and related factors as required by the Direction, including the fact that Mr Baker was a minor when he began living in Australia, the length of time he had been in Australia before engaging in criminal conduct, and the best interests of his three children. On the first of those matters, while the Tribunal found that the fact that Mr Baker had spent his formative years in Australia and had become part of the Australian community was a consideration which weighed in Mr Baker’s favour, it concluded that that consideration “does not outweigh the first primary consideration; the protection of the Australian community”. As to the length of time Mr Baker was in Australia before his first conviction, the Tribunal also considered that, having regard to the facts, this consideration weighed in Mr Baker’s favour, but that “it does not outweigh the first primary consideration; the protection of the Australian community”. As to the primary consideration concerning the best interests of his children, the Tribunal concluded that it was not necessarily in the best interests of two of his children for Mr Baker to remain in Australia, particularly having regard to Mr Baker’s disregard for his children’s welfare in supplying their mother with heroin. The Tribunal concluded that it was “marginally” in the best interests of the third child that Mr Baker remain in Australia, but concluded that this did not outweigh the protection of the Australian community.

29    The Tribunal then proceeded to address the relevant “other considerations” as required by paragraph 11 of the Direction. They included such matters as Mr Baker’s family ties, the nature and context of his relationships and his links to Papua New Guinea, as well as the hardship that he and his immediate family would likely experience if he was returned to Papua New Guinea.

30    The Tribunal’s ultimate conclusions are then set out in [85] and [86] of its decision. Those conclusions appear along with other paragraphs in a section of the reasons which is headed “BALANCE OF CONSIDERATIONS”. It is convenient to set out those paragraphs in full (emphasising two important sentences in particular):

Despite evidence that suggests Mr Baker may have been making efforts to change his behaviour, I am not satisfied that he will not revert to committing serious and violent offences. His history suggests a high probability that he will again revert to abusing drugs and commit serious, violent offences. There is, in my view, an unacceptable risk of harm to the Australian community from his conduct in the future. I am not satisfied that the other primary considerations outweigh that unacceptable risk of harm. In particular, I am not satisfied, on the available evidence, the best interests of two of Mr Baker’s three children favour that he remain in Australia. As to the third child (T1) it is only marginally in her best interests that Mr Baker remain in Australia. His relationship with all his children has been non-existent for over two years, and there is no evidence that their best interests would be served by him remaining in the country or even that he will be able to see them in future if he does.

I accept that Mr Baker’s family, especially his mother, wish to support him and that they may be distressed at his removal from Australia. I acknowledge that he has few, if any, meaningful ties in PNG and that it will be very hard for him to establish himself there. It is quite possible that, if he is deported, his rehabilitation will be set back. However, I am satisfied that the degree of unacceptable risk that he poses to the Australian community outweighs all other considerations. The discretion in s 501 of the Act should not be exercised in Mr Baker’s favour.

(Emphasis added.)

31    We have given emphasis to two particular sentences in those paragraphs because, as will emerge further below, we consider that those sentences are inconsistent with the appellant’s central argument as presented both below and before us on appeal on the issue whether, in fact, the Tribunal weighed the competing considerations cumulatively.

the proceedings below

32    The appellant argued below that the Tribunal’s decision was vitiated by jurisdictional error. The jurisdictional error was expressed in terms of a single allegation: the Tribunal had “failed to carry out its statutory duty”. Particulars to that allegation were set out as follows in the appellant’s application for judicial review (noting that they are not expressed in identical terms to the two grounds of appeal now raised by the appellant before us):

(a)    The Tribunal must follow the direction made under s 499 of the Migration Act by balancing all the relevant criteria singularly and cumulatively.

(b)    The Tribunal started by according primary status to the protection of the community and then assessing each other (sic) singularly against it.

(c)    In so doing, the Tribunal failed to carry out its statutory duty by meaningly (sic) balancing all the relevant criteria.

33    The appellant argued below that the Tribunal was required to weigh each of the primary and other considerations singularly and cumulatively against the other relevant primary and other considerations, particularly in respect of the children’s interests. In support of that argument, the appellant cited the following passage from the joint judgment of Mason CJ and Deane J in Minister for Immigration & Ethnic Affairs v Ah Hin Teoh (1995) 183 CLR 273 at 292:

A decision-maker with an eye to the principle enshrined in the Convention would be looking to the best interests of the children as a primary consideration, asking whether the force of any other consideration outweighed it.

34    The primary judge’s reasons for dismissing the application for judicial review may be summarised as follows. First, his Honour drew attention to the well-established principle drawn from cases such as Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 highlighting the need for judicial restraint in reviewing the reasons of an administrative decision-maker.

35    Secondly, the primary judge stated that it is not an error of law if a decision-maker expresses their reasons sequentially, citing cases such as Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59; 77 ALJR 1165 at [14] per Gleeson CJ.

36    Thirdly, his Honour stated that the Tribunal’s decision “should be read as a whole”, citing Board of Trustees v Edington (2011) 119 ALD 472 at 491.

37    Fourthly, his Honour acknowledged that, as a matter of general principle, it is for the decision-maker to give such weight to the relevant considerations as he or she deems appropriate, unless directed otherwise, citing the well-known observations of Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at 41.

38    The primary judge then applied those principles in undertaking a detailed analysis of the reasons of the Tribunal’s Senior Member in respect of each of the relevant and binding elements of the Direction. It is unnecessary for us to repeat that analysis here. The essential elements of the Tribunal’s reasoning have been summarised by us above.

39    Bearing in mind that this appeal must focus on the reasons of the primary judge (and indirectly on those of the Tribunal), we consider that it is sufficient for the purposes of the appeal to record the primary judge’s ultimate findings as set out in [43] to [47] of his Honour’s reasons:

The above demonstrates that the Senior Member treated, as a primary consideration, the welfare of the applicant’s children. Accordingly, the requirement referred to in Teoh has been satisfied.

As to the other considerations, the Senior Member acknowledged that the impact of his visa cancellation on his family might result in emotional distress to them, but again this factor did not outweigh the primary consideration of the protection of the Australian community. The Senior Member also acknowledged that some hardship might be suffered by the applicant upon resettling in Papua New Guinea and that he may not have access to treatment for his drug dependency issues in Papua New Guinea as he might have if he remained in Australia. Nevertheless, such a consideration was insufficient to outweigh the interests of the protection of the Australian community.

The Court accepts that the Senior Member’s observation of the ‘unacceptable risk’ that the appellant posed to the Australian community ‘outweighs all other considerations’ could be said to be unclear in that she did not specify whether the ‘other considerations’ took into account the totality of the primary considerations as well as the non-primary considerations. However, when the decision is read as a whole it is clear that the Senior Member weighed all issues sequentially. The Senior Member considered the character test at [3]-[9], then having done so moved to the critical issue of whether the Tribunal should exercise its discretion not to cancel the applicant’s visa. Such an inquiry required an examination of the nature and seriousness of the applicant’s conduct, the risk of a repetition of such conduct, and of the primary and other considerations. Accordingly, the Senior Member fulfilled her duty of deciding whether the appellant’s visa should be cancelled. Each of the relevant matters taken separately were considered in reaching the decision to cancel the visa.

The Court concludes that in [86] of the decision the Senior Member was stating her finding that cumulatively ‘all other considerations’, both primary as stipulated in cl 10 and ‘Other considerations’ in cl 11 of the Direction, were insufficient to outweigh the overriding consideration of harm to the Australian community.

It follows that the application should be dismissed with costs.

(Emphasis added.)

40    Because of its relevance to the appellant’s first ground of appeal, it is important to note the primary judge read the reference in [86] of the Senior Member’s reasons to “all other considerations” as encompassing both “primary considerations” and “other considerations” within the meaning of paragraphs 10 and 11 respectively of the Direction. The primary judge rejected the appellant’s argument that “all other considerations” should be read as though it said “all the other considerations” within the meaning of paragraph 11 of the Direction alone.

consideration

41    For the following reasons, we consider that the appellant has failed to make good his contention that the primary judge erred in not accepting his claim that the Tribunal fell into one or more jurisdictional errors as claimed in the notice of appeal.

42    First, the primary judge was plainly correct to emphasise at the outset the relevance of the well-established principle to the effect that the reasons of administrative decision makers ought not to be construed minutely and with an eye keenly attuned to the perception of error. This is a particularly important principle having regard to the appellant’s submissions concerning the primary judge’s reading of [86] of the Tribunal’s reasons for decision.

43    Secondly, and partly related to that first principle, we consider that the primary judge was correct to emphasise the need to appreciate that it is usual for administrative decision-makers (and indeed others) to express their reasons sequentially. For example, expressions of conclusion in a particular sequence do not necessarily indicate that there has been a failure to consider the evidence as a whole. The primary judge cited the following passage from Gleeson CJ’s judgment in Applicant S20 at [14]:

Decision-makers commonly express their reasons sequentially; but that does not mean that they decide each factual issue in isolation from the others. Ordinarily they review the whole of the evidence, and consider all issues of fact, before they write anything. Expression of conclusions in a certain sequence does not indicate a failure to consider the evidence as a whole. I do not think that the Tribunal member intended to convey that she made up her mind about the evidence of the applicant/appellant before taking account of the evidence of the witness who was said to corroborate him.

44    Although that passage dealt directly with sequential reasons in relation to evidence given by different witnesses, we consider that its underlying principle, which recognises the need to read a decision-maker’s reasons as a whole, applies equally to a case such as here, where the Tribunal’s reasons deal sequentially with different issues or considerations. All the more so in our opinion where, having dealt with relevant individual primary and other considerations, the Tribunal uses language which expressly indicates that it has given consideration to particular matters both singularly and cumulatively, as is indicated in the sentence in [86] of the Tribunal’s reasons which we have emphasised in the passages set out in paragraph 30 above.

45    Thirdly, and related to the second matter dealt with immediately above, we also agree with the emphasis given by the primary judge to the need for the Tribunal’s reasons for decision to be read as a whole. To approach the matter otherwise is to ignore the High Court’s admonition in Wu Shan Liang at 272 that:

… the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.

46    Fourthly, we consider that the primary judge correctly acknowledged and applied the well-established general principle that “it is for the decision-maker to give such weight to the relevant considerations as she or he deems appropriate, unless directed otherwise”, citing the following observations by Mason J in Peko Wallsend Limited at 41:

It follows that, in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power…

47    It is to be noted that the general principle outlined by Mason J in that passage is stated to be subject to an express exception in circumstances where there is a statutory indication of the weight to be given to various considerations. Although the Direction is silent on whether there needs to be a cumulative consideration of relevant matters, it does contain express statements relating to the weight to be attached to particular considerations. In particular, as noted above, paragraph 11(2) provides that, while “other considerations” need to be taken into account where relevant, generally they are to be given less weight than is the case with primary considerations. That is the sort of qualification which Mason J seems to have had in mind when he stated the general principle in Peko-Wallsend.

48    For the following reasons, we agree with the primary judge’s conclusion in [46] of his reasons to the effect that, when the Senior Member referred in [86] of her reasons to “all other considerations”, she was referring to both relevant primary considerations (as set out in paragraph 10 of the Direction) as well as relevant “other considerations” (as set out in paragraph 11 of the Direction), and that she weighed all those considerations cumulatively, but found they were insufficient to outweigh what his Honour described as “the overriding consideration of harm to the Australian community”.

49    First, it is to be noted at the outset that the two emphasised sentences in [85] and [86] of the Tribunal’s reasons for decision, as set out in paragraph 30 above, appear under the heading: “BALANCE OF CONSIDERATIONS”. The paragraphs appear toward the end of the Senior Member’s reasons and, self-evidently, were intended to record her core conclusions and essential reasoning for affirming the delegate’s decision to cancel Mr Baker’s visa. More detailed reasons were set out sequentially earlier in the Senior Member’s decision by reference to each of the relevant primary and other considerations. In our view, it was convenient for those matters to be dealt with in that fashion and no legal error has been established in adopting that sensible and practical approach. In the final section of the Tribunal’s reasons for decision, the Senior Member effectively draws together the various elements of her reasoning and analysis in explaining why Mr Baker’s application for review failed.

50    Secondly, the sentence we emphasised in [85] of the Tribunal’s reasons, when read in its context, indicates that the Senior Member weighed all relevant primary considerations cumulatively against the primary consideration of protecting the Australian community from harm. Furthermore, we agree with the primary judge that the Tribunal’s statement in [86] of its reasons, which records the Senior Member’s satisfaction that the degree of unacceptable risk posed by the appellant to the Australian community “outweighs all other relevant considerations”, indicates that the Tribunal also cumulatively weighed all those other relevant considerations against that matter, whether they were “primary considerations” or “other considerations”. The position might be different if the Senior Member had referred to “all the other considerations”, as that would indicate that she was confining this part of her reasoning to the “other considerations” as set out in paragraph 11 of the Direction. But that is not the language she used.

51    Thirdly, it is to be noted that the Senior Member’s reference in [86] of her reasons to the degree of unacceptable risk outweighing all other considerations appears immediately before the final sentence in that paragraph expressing her ultimate conclusion against exercising the discretion under s 501 of the Act in Mr Baker’s favour. When the paragraph is read as a whole, it seems to us that the primary judge was correct in giving a broad meaning to the phrase “all other considerations” as encompassing both relevant primary and relevant other considerations because it is clear that the Senior Member’s ultimate conclusion turned on her cumulative assessment of both those categories of consideration.

52    Fourthly, we consider that some further limited support for that reading of [86] of the Tribunal’s reasons is provided by the Senior Member’s express acknowledgement in [7] of her reasons, where she accepted that there was an obligation upon a decision-maker to take into account both primary considerations and other considerations where relevant.

53    We do not see any error in the primary judge’s description of harm to the Australian community as an “overriding consideration”. We do not consider that his Honour intended by the use of the word “overriding” to suggest that harm to the Australian community must always be given primacy over the other three primary considerations set out in the Direction. Rather, his Honour used that expression to reflect his assessment that the Tribunal regarded that primary consideration to be overriding in the particular circumstances of this case when weighed with all other relevant considerations.

54    As to the appellant’s second ground of appeal, which claims that the primary judge erred in concluding that the Tribunal had correctly applied a particular passage from Teoh, the appellant clarified during the course of the hearing before us that this ground was intended to be in the alternative to the first ground of appeal. As we understood the argument, the appellant contends that the primary judge erred in not finding that the Tribunal had misapplied Teoh by not viewing the best interests of the appellant’s children as the starting point for the task of determining whether the appellant’s visa should be cancelled.

55    We consider that the second ground of appeal should be rejected for the following two reasons. First, it fails to appreciate the legal significance of the Direction. As noted above, the Direction imposes binding requirements on relevant decision-makers. The Direction post-dates Teoh. If there is any inconsistency between the Direction and any passage in Teoh, the Direction necessarily prevails. In our view, while the Direction identifies the best interests of a child as potentially being a primary consideration, it does not elevate that matter above the other primary considerations in paragraph 10.

56    Secondly, and in any event, we consider that the appellant misstates the effect of the observations of Mason CJ and Deane J in Teoh at 292 as set out in [33] above. We respectfully agree with the following analysis by Tracey J of this aspect of Teoh in Basile v Minister for Immigration and Citizenship (2011) 193 FCR 329 at [46]:

Teoh does not require that the best interests of Mr Basile’s children must be given temporal primacy over the other three primary considerations which are identified in the Direction. The case stands for the proposition that, by ratifying the United Nations Convention on the Rights of the Child 1989, done at New York on 20 November 1989 (the Convention), the Australian government has represented that it will act conformably with the terms of the Convention. One of its Articles provided that, in all actions concerning children, administrative authorities of the State would ensure that "the best interests of the child shall be a primary consideration" (emphasis added). Although the Convention had not become part of domestic law, its ratification gave rise to a legitimate expectation that administrative decision-makers would comply with it and would not fail to do so without first affording an affected person the opportunity to argue that the decision-maker should treat the interests of a child as a primary consideration. It was not held that an Australian administrative decision-maker must always accord primacy to the interests of any relevant child much less that such a consideration must be brought into account before any other considerations are selected and weighed by the decision-maker.

57    For all these reasons, the appeal should be dismissed and the appellant ordered to pay the first respondent’s costs.

Associate:

Dated:    15 October 2012