FEDERAL COURT OF AUSTRALIA
Minister for Immigration and Border Protection v Lesianawai [2014] FCAFC 141
| IN THE FEDERAL COURT OF AUSTRALIA | |
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION Appellant | |
| AND: | First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent |
| DATE OF ORDER: | |
| WHERE MADE: |
THE COURT ORDERS THAT:
2. Orders 2 to 5 made by Robertson J on 23 April 2014 be set aside and in lieu thereof it be ordered:
2. The amended originating application be dismissed.
3. The applicant pay the costs of the first respondent, as taxed if not agreed.
3. The first respondent to the appeal pay the appellant’s costs of the appeal, as taxed if not agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
| NEW SOUTH WALES DISTRICT REGISTRY | |
| GENERAL DIVISION | NSD 474 of 2014 |
| ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA |
| BETWEEN: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION Appellant |
| AND: | RATU NOULU ORVILLE LESIANAWAI First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent |
| JUDGES: | BUCHANAN, PERRY AND GLEESON JJ |
| DATE: | 27 October 2014 |
| PLACE: | SYDNEY |
REASONS FOR JUDGMENT
BUCHANAN J:
1 This appeal challenges a decision of a Judge of this Court (“the primary judge”) that a decision of the Administrative Appeals Tribunal (“the AAT”) should be set aside for jurisdictional error. The decision of the AAT, given on 7 January 2014, was that a decision by a delegate of the appellant (“the Minister”) to cancel the permanent residence visa of the first respondent (hereinafter called “the respondent”) should be affirmed.
2 The respondent is a Fijian national who, at the date of the AAT decision, was 29 years old. He came to Australia at the age of three with his parents and four older brothers. Commencing at about 12 years old the respondent had a very long criminal history, both as a young person and as an adult. The AAT found that he has spent most of his adult life in custody and since turning 18 in November 2002 had been at liberty in the community for only three periods, none of which was longer than seven months. During each of those periods the respondent was subject to parole conditions which he breached by re-offending. In its thorough examination of the respondent’s criminal history, his pattern of re-offending, his drug use (both outside and inside prison) and his inability to sustain any attempt to rehabilitate himself, the AAT assessed the primary and other considerations specified in a direction issued by the Minister under s 499 of the Migration Act 1958 (Cth) (“Migration Act”) known as “Direction no. 55 – Visa refusal and cancellation under s501” (“Direction 55”).
3 Resolution of the appeal requires assessment of the correctness of the finding of the primary judge that the AAT had made a jurisdictional error in one (but only one) identified respect out of a number of errors which had been asserted by the respondent in his challenge to the decision of the AAT.
The AAT Decision
4 The AAT distilled the task of complying with Direction 55 in the following way:
THE REVIEW CRITERIA
8. In reviewing a visa cancellation decision by a Ministerial delegate the Tribunal is required to comply with any direction issued by the Minister under s 499 of the Migration Act 1958. The direction that has been in force since 1 September 2012 is “Direction no 55 – Visa refusal and cancellation under s 501”.
9. The stated purpose of Direction 55 is to guide the exercise of the visa refusal and cancellation powers contained in s 501 of the Migration Act 1958. The Direction contains a statement of “General Guidance” and sets out various principles. It describes them as “of critical importance” in furthering the stated objective of the Migration Act – specifically, the national interest regulation of the presence of non-citizens in Australia. Those principles, though stated at somewhat greater length in the Direction itself, essentially involve the propositions that
(a) Australian residence is a privilege, and is extended to non-citizens in the expectation that they will be law abiding and not cause harm
(b) generally, non-citizens who have committed serious crimes will not be allowed the privilege of Australian residence
(c) the circumstances of a person’s Australian residence, particularly their age and the length of their lawful residence, may permit some harm risks to be regarded as acceptable or tolerable, but the harm risks associated with some conduct may be so serious as to outweigh other considerations strongly favouring the non-citizen’s Australian residence
(d) considerations favouring a non-citizen’s continuing Australian residence include the length of any period of positive contribution they have made, the effect of visa refusal or cancellation on their family members, and the best interests of minor children who would likely be affected by an adverse visa decision.
10. In relation to a visa cancellation decision, Direction 55 requires the Tribunal to “take into account” a number of specific considerations, which it characterises as either “primary” or “other” considerations. Primary considerations are matters that must be taken into account, and which should “generally” be given greater weight. Other considerations are matters to which a decision maker should attach less weight.
11. Direction 55’s emphatic classification of considerations as either “primary” or “other” implies a clarity of distinction that is in some respects obscured by, and not well defined in, the exegetical text of the Direction. Although the two categories are described in somewhat more elaborate detail in Direction 55, the essence of the two categories can be conveyed by the following short descriptions:
(a) Primary considerations
(i) protection of the Australian community
(ii) the quality of the non-citizen’s ties to the Australian community
(iii) the best interests of resident minor children,
(iv) compliance with international “non-refoulement” obligations
(b) Other considerations
(v) the effect of visa cancellation on permanent resident family members
(vi) the effect on Australian business interests
(vii) the impact of non-cancellation on members of the Australian community, including the impact on victims of the non-citizen’s criminality
(viii) difficulties the non-citizen may face in maintaining themselves in their home country.
12. It is obvious, and Direction 55 recognises, that the four “primary” considerations may point to opposite conclusions about the appropriate exercise of the visa cancellation power. That, in itself, complicates compliance with the direction that “primary” considerations are “generally” to be given greater weight. But the potential complications are increased by the scope for factual overlap between the “primary” and “other” considerations. That scope for overlap exists between the “primary” consideration of protecting the Australian community, and the “other” consideration of the impact of a “non-cancellation” decision on members of the Australian community. Similarly, there is scope for overlap between the “primary” consideration of the quality of a non-citizen’s ties to the Australian community and the “other” consideration of the effect of visa cancellation on a non-citizen’s resident family members.
13. The evident potential for tension between the various “primary” considerations, and between those considerations and at least some of the “other” considerations, points to the exercise of the visa cancellation power requiring a “balancing” exercise. This is recognised, though in a somewhat less direct context, in Direction 55 at paragraph 7(1)(b). It describes the decision maker as
… required to determine whether the risk of future harm by a non-citizen is unacceptable. This requires a balancing exercise, involving a consideration of the likelihood of any future harm, the extent of the potential harm should it occur, and the extent to which, if at all, any risk of future harm should be tolerated by the Australian community.
14. That “balancing” exercise is one that requires a comparative, but ultimately impressionistic, evaluation of the totality of the relevant circumstances. This evaluation has to be carried out against the background of the objectives and principles described in Direction 55. It requires a careful and accurate assimilation of all the circumstances relevant to the particular non-citizen who contests their visa cancellation.
(Emphasis in original.) (Footnote omitted.)
5 Thereafter, the AAT examined issues relating to the cancellation of the respondent’s visa under the following headings:
[The respondent’s] criminal conduct
The nature and seriousness of [the respondent’s] conduct
[The respondent’s] incarceration – February 2006 to August 2009
[The respondent’s] 2009 parole liberty
Contemporary assessment of [the respondent’s] risk of re-offending
Conclusion on the protection consideration
[The respondent’s] Australian ties
Best interests of minor children
Other considerations – effect on family members
Other considerations – [the respondent’s] personal circumstances
Determining acceptable risk
6 The final subject matter dealt with by the AAT responded to a direction in cl 7 of Direction 55 in the following terms:
7. How to exercise the discretion
(1) Informed by the principles in paragraph 6.3 above, a decision-maker:
a) must take into account the considerations in Part A or Part B, where relevant, in order to determine whether a non-citizen will forfeit the privilege of being granted, or of continuing to hold, a visa; and
b) is required to determine whether the risk of future harm by a non-citizen is unacceptable. This requires a balancing exercise, involving a consideration of the likelihood of any future harm, the extent of the potential harm should it occur, and the extent to which, if at all, any risk of future harm should be tolerated by the Australian community.
7 The considerations in Part A and Part B which are referred to in cl 7(1) (relating respectively to visa holders and visa applicants) are those primary and other considerations set out by the AAT in the passage extracted earlier.
8 The principles in cl 6.3, which are referred to in cl 7(1) are as follows:
6.3 Principles
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3) In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(4) Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(5) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(6) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
(Emphasis added.)
9 It is apparent that cl 6.3(3) and 6.3(4) expose the possibility of competing and conflicting considerations in any particular case.
10 In light of the importance to the conclusion reached by the primary judge of the approach taken by the AAT to the issue of determining whether the risk of future harm from the respondent was “unacceptable”, it is desirable to set out in full the AAT’s analysis of that issue, which I do hereunder.
11 However, it is important to appreciate that the preceding discussion by the AAT had led to the following conclusions:
the respondent “represents a significant risk of future re-offending, and a significant risk of serious harm as a result of any such re-offending. These risks strongly favour cancellation of [the respondent’s] visa”;
a number of considerations (including his relationship with his fiancÉe) indicate the strength of the respondent’s Australian ties, and strongly favour his continued Australian residence;
“… the strength of those considerations is reduced by the facts that (i) he has spent almost the preponderance of his adult years in prison, (ii) his serious offending began in his teenage years, (iii) he has continued to offend, and to display little evidence of sustained capacity to reform, and (iv) he is unable to point to any strong links to the Australian community, other than his own family members, his fiancÉe and his infant son. Because of the limited periods during which [the respondent] has been at liberty since May 2002, he has no significant work qualifications or experience.”
it is in the best interests of the respondent’s son that the respondent remain in Australia even though the AAT did not accept that it could confidently conclude that his presence would be likely either to contribute to his son’s best interests in any specific way or be free of an unacceptable risk of future and serious offending conduct;
visa cancellation would be heartbreaking to the respondent’s parents and his fiancÉe and disappointing for his elder brothers and his son, although there is no evidence that the respondent has provided financial support or assistance either to his family or his fiancÉe and his son.
12 Following those conclusions (and the extensive discussion which explained them), the AAT said the following:
DETERMINING ACCEPTABLE RISK
85. [The respondent’s] past offences, particularly his most recent offences in 2010, were serious. Any repetition of them carries a readily appreciable risk of grave injury. The risk of [the respondent] re-offending is real and, in the light of many assessments identifying his long standing drug addiction, negative “core belief” and poor impulse control, is significant. In these circumstances there are good grounds to exercise the visa cancellation power by regarding as determinative, the primary consideration of protection of the Australian community.
86. The weight of that protective consideration has to be assessed against the significance not only of [the respondent’s] Australian ties, but also the best interests of his young son. Those matters count against the cancellation of his visa. The task of determining where the balance between these, essentially countervailing, considerations should be struck is a matter of impressionistic evaluation, neither without difficulty nor reasonably open to only one conclusion.
87. My assessment is that the visa cancellation power in this instance should be exercised by preferring the purpose of protecting the Australian community from harm. [The respondent’s] past conduct, despite ample opportunity, and professed motivations, to reform precludes any degree of real satisfaction that [the respondent] is unlikely to re-offend, and to do so in a serious way. If he re-offends, he can expect custodial sentences even longer than those he is currently serving. In these circumstances, I am not at all satisfied that there is a sound basis to conclude that [the respondent] is likely to fulfil a significant parental role with his son. Conversely, I am satisfied that [his fiancÉe] has both the means and the determination to provide well for her son. I am also satisfied that he will be welcomed and sustained within their wider family membership that will remain in Australia.
88. I accept, and I have endeavoured to recognise fully, that it is a harsh step to deny [the respondent] continued residence in the country in which he has spent almost all of his formative years. There are numerous instances where the harshness of such an exercise of the visa cancellation power has been remarked upon with significant disfavour: see for example Pochi v Macphee (1982) 151 CLR 101 at 115; Nystrom v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 143 FCR 420 and Ayan v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 126 FCR 152. Nevertheless, previous decisions have rejected the notion that the proper exercise of the visa cancellation decision should be influenced either by the limited availability of the deportation power in ss 200 – 203 of the Migration Act 1958 (see Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566) or by the notion that Australia owes a non-citizen some kind of obligation to continue the privilege of Australian residence where that residence has involved either the predominant part, or the whole, of their minority: see Re Toia and Minister for Immigration and Citizenship [2007] AATA 2078 at [12] and Re Ung and Minister for Immigration and Multicultural Affairs (AAT 13387, 21 October 1998) at [50]-[52]. In this situation the length of a non-citizen’s Australian residence, particularly residence as a minor, is a significant, but not determinative matter, in the exercise of the visa cancellation power. The power is not fettered by any specific restriction in the Migration Act itself, and is only the subject of very general guidance in the principles in Direction no. 55 paragraph 6.3(4). Consequently, it is a situation which the remarks of Deane J in Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363 at 375 are appropriate. His Honour said:
… where relevant considerations are not specified, it is largely for the decision-maker, in the light of matters placed before him by the parties, to determine which matters he regards as relevant and the comparative importance to be accorded to matters which he so regards.
89. Those considerations of comparative importance include full recognition of the additional harshness involved in require [sic] [the respondent] to leave his immediate and extended family. Finally, it is a large step to deny a father and son the benefit of living together and sharing the joys, and the travails, of ordinary family life.
90. But the apparent harshness of these steps is mitigated by the knowledge of the warning that was given to [the respondent] in 2008, and, as I have endeavoured to indicate earlier in these reasons, his full awareness of the significance of that warning. It is also mitigated by [the respondent’s] repeated inability, or unwillingness, to live out the motivations to reform that he has expressed in the past, and repeated in these proceedings. Because of the unreliability of [the respondent’s] past professions of his desire to reform, the promptness with which he has re-offended, and the consistently remarked upon qualities (drug addiction, poor impulse control, vulnerability to peer pressure and negative “core belief”) which underlie his risk of re-offending, I do not have any degree of real satisfaction that [the respondent] would be likely to contribute meaningfully, reliably and consistently to the kind of family life that would be in his son’s best interests. I consider it rather more likely that [the respondent] is at risk of visiting upon his son, [his fiancÉe], and the Australian community, a future at least punctuated, if not typified, by uncontrolled drug addiction and violent criminality. In those circumstances, the preferable course to take is to exercise the visa cancellation power by striking the evaluative balance in favour of the protection of the Australian community from a real, and unacceptable, risk of harm caused by [the respondent] re-offending.
DECISION
91. The decision under review is affirmed.
13 I will return shortly to the challenge made to the concluding remarks in [88] which provide the foundation for the conclusion of the primary judge that the AAT committed jurisdictional error.
The finding of jurisdictional error
14 The proceedings before the primary judge in this Court concerned consideration of an amended application made under s 476A of the Migration Act. The grounds of the amended application were to the following effect:
1. The second respondent failed to comply with s 499(2A) of the Act.
Particulars
(a) the second respondent erred by failing to make a finding as to whether cancellation of the applicant’s visa is or is not in the best interests of the applicant’s child in conformity with the direction no 55 made by the Minister pursuant to s 499 of the Act (Direction 55) paragraph 9.3(1).
(b) the second respondent considered that its power was not fettered by any specific restriction in the Migration Act itself which was contrary to the terms of s 499(2A) of the Act and Direction 55.
2. The second respondent failed to take into account relevant considerations.
Particulars
the second respondent erred by failing to make a finding as to what the best interests of the applicant’s child required.
3. The second respondent misapplied the law and impermissibly fettered its discretion.
Particulars
the second respondent answered the question posed by paragraph 7 of Direction 55, which question was narrower than that posed by s 501(2) of the Act.
15 All but one of these grounds (Ground 1(b)) was rejected by the primary judge. Apart from Ground 1(b), it will be necessary to return only to Ground 3. In relation to Ground 1(b), the primary judge said the following:
Ground 1(b)
26 In relation to ground 1(b), the applicant drew attention to paragraph 8 of Direction 55 and primary consideration 9.2, as follows:
8. Taking the relevant considerations into account
(1) Decision-makers must take into account the primary and other considerations relevant to the individual case, noting that there are differing considerations for visa holders and visa applicants as articulated in Parts A and B.…
(2) …
(3) Both primary and other considerations may weigh in favour of, or against, refusal or cancellation of the visa.
(4) Primary considerations should generally be given greater weight than the other considerations.
(5) One or more primary considerations may outweigh other primary considerations.
…
9.2 Strength, duration and nature of the person’s ties to Australia
(1) Reflecting the principles at 6.3, decision-makers must have regard to:
a) How long the person has resided in Australia, including whether the person arrived as a young child, noting that:
i. Less weight should be given where the person began offending soon after arriving in Australia; and
ii. More weight should be given to time the person has spent contributing positively to the Australian community.
b) The strength, duration and nature of any family, social and/or employment links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
27 The applicant then referred to the following reasoning of the Tribunal at [88], when the Tribunal was considering the relevance of the applicant having been in Australia from a young age (I have underlined the passage relied on by the applicant):
I accept, and I have endeavoured to recognise fully, that it is a harsh step to deny [the respondent] continued residence in the country in which he has spent almost all of his formative years. There are numerous instances where the harshness of such an exercise of the visa cancellation power has been remarked upon with significant disfavour: see for example Pochi v Macphee (1982) 151 CLR 101 at 115; Nystrom v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 143 FCR 420 and Ayan v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 126 FCR 152. Nevertheless, previous decisions have rejected the notion that the proper exercise of the visa cancellation decision should be influenced either by the limited availability of the deportation power in ss 200 – 203 of the Migration Act 1958 (see Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566) or by the notion that Australia owes a non-citizen some kind of obligation to continue the privilege of Australian residence where that residence has involved either the predominant part, or the whole, of their minority: see Re Toia and Minister for Immigration and Citizenship [2007] AATA 2078 at [12] and Re Ung and Minister for Immigration and Multicultural Affairs (AAT 13387, 21 October 1998) at [50]-[52]. In this situation the length of a non-citizen’s Australian residence, particularly residence as a minor, is a significant, but not determinative matter, in the exercise of the visa cancellation power. The power is not fettered by any specific restriction in the Migration Act itself, and is only the subject of very general guidance in the principles in Direction no. 55 paragraph 6.3(4). Consequently, it is a situation which the remarks of Deane J in Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363 at 375 are appropriate. His Honour said:
… where relevant considerations are not specified, it is largely for the decision-maker, in the light of matters placed before him by the parties, to determine which matters he regards as relevant and the comparative importance to be accorded to matters which he so regards.
The applicant submitted that the Tribunal’s understanding of the applicable approach was misconceived and reflected on its jurisdiction. The applicant submitted that Direction 55 specified both the relevance of and weight to be attributed to arrival as a young child. The Tribunal was to apply the policy to the particular circumstances of the case. The Tribunal was not at large to determine what was relevant and what importance it afforded to the applicant’s residence in Australia from a young age. The applicant submitted the Tribunal exceeded its jurisdiction and misunderstood the applicable law. Reference was made to Minister for Immigration, Local Government and Ethnic Affairs v Gray [1994] FCA 1052; (1994) 50 FCR 189 at 207.
28 I accept the submission on behalf of the first respondent that a fair reading of the Tribunal’s reasons shows that the Tribunal was aware that it had to have regard to the general guidance given by Direction 55 and the relevant primary and secondary considerations set out in that Direction and did so, particularly at [12], [72], [78]–[79], [82]–[84] and [85]–[90] of its reasons.
29 In my opinion, the submission on behalf of the applicant that Direction 55 has specified both the relevance of and weight to be attributed to arrival as a young child should not be accepted, if intended to mean that Direction 55 requires a specific weight to be given to arrival as a young child. In my view paragraph 9.2 of Direction 55 requires the decision-maker to have regard to how long the person has resided in Australia, including whether the person arrived as a young child, but then notes that less weight should be given to that factor where the person began offending soon after arriving in Australia and more weight should be given to time the person has spent contributing positively to the Australian community. The Direction does not specify the actual, as opposed to the relative, weight to be given to those considerations.
30 However the reference to the passage in Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363 at 375 where Deane J spoke of relevant considerations not being specified, with reference to s 40AE(3) of the National Health Act 1953 (Cth), was incorrect in circumstances where Direction 55 sets out primary and other considerations, relevant to the individual case, which decision-makers must take into account: see Baker v Minister for Immigration and Citizenship [2012] FCAFC 145 at [47] where the Full Court said in relation to Direction No 41 that that Direction contained express statements relating to the weight to be attached to particular considerations and explained the general statement of Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 41 in that light. What Mason J said in Minister for Aboriginal Affairs v Peko-Wallsend Ltd at 41 expressed the same principle as Sean Investments Pty Ltd v MacKellar at 375 and indeed expressly cited that page.
31 Although, as I have said, in the earlier part of its reasons the Tribunal did not in fact proceed on the basis that relevant considerations were not specified, the Tribunal’s erroneous reference to Sean Investments Pty Ltd v MacKellar cannot be ignored.
32 It is not that the Tribunal did not address and have regard to the matters in paragraph 9.2(1)(a) as, in my opinion, it did so in its discussion of the applicant’s Australian ties, particularly at [79]. Rather, the jurisdictional error was to state as part of its exercise of the ultimate discretion in [88] of its reasons that the visa cancellation power was only the subject of very general guidance in the principles in Direction 55, paragraph 6.3(4) and to reason that it was therefore largely for it, as the decision-maker, to determine which matters the Tribunal regarded as relevant and the comparative importance to be accorded to matters which the Tribunal regarded as relevant.
33 In light of its place in the reasoning of the Tribunal, I cannot conclude that this erroneous misstatement about the fetters on its discretion was immaterial or that there was no material error because the balance of the reasons showed that the Tribunal understood it was fettered in other aspects of the exercise of the discretion to cancel the visa.
34 It may be that the Tribunal was reproducing at the end of [88] what was said in Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom [2006] HCA 50; (2006) 228 CLR 566 at [126]. That decision had been referred to earlier in [88] of the Tribunal’s reasons. But that paragraph in Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom was directed to the position of the Minister and not to the position of the Tribunal. The result is that that source of the reference to Sean Investments Pty Ltd v MacKellar would confirm the error rather than expunge it.
35 I therefore uphold this ground.
(Emphasis in original.)
16 It may be seen that the finding of jurisdictional error arose from the reference by the AAT to Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363 at 375 (“Sean Investments”). In particular, it followed from the apparent affirmation by the AAT that “the visa cancellation power” was largely unfettered and it was therefore for the decision-maker to determine what matters were regarded as relevant and the comparative importance to be accorded to such matters.
17 However, as the primary judge observed at [31] it is clear that the AAT did not in fact proceed on the basis that relevant considerations were not specified. Indeed, the AAT had gone to considerable trouble addressing the relevant considerations with fidelity to the requirements, directions and guidance in Direction 55 and had then expressed conclusions about the particular factors which were relevant to the respondent’s circumstances.
18 Before I deal further with the matters which concerned the primary judge, I propose to examine the contents and structure of Direction 55 in a little more detail.
Direction 55
(i) Overview
19 Direction 55 is concerned with decisions by decision-makers about whether, and how, to exercise the discretion given to the Minister by s 501 of the Migration Act. Section 501(2) provides:
501 Refusal or cancellation of visa on character grounds
Decision of Minister or delegate—natural justice applies
…
(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.
…
20 A person does not pass the character test if that person has a “substantial criminal record” (s 501(6)) as defined by s 501(7). The first respondent has a substantial criminal record and does not pass the character test. The Minister therefore had a discretion to cancel his visa.
21 The Minister’s discretion was exercised by a delegate in the first instance. The proceedings in the AAT represented a review by the AAT of the delegate’s decision. The AAT was obliged to examine the merits of the respondent’s case and decide for itself whether his visa should be cancelled. Section 499(1), (2) and (2A) of the Migration Act provides:
499 Minister may give directions
(1) The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a) the performance of those functions; or
(b) the exercise of those powers.
…
(2) Subsection (1) does not empower the Minister to give directions that would be inconsistent with this Act or the regulations.
(2A) A person or body must comply with a direction under subsection (1).
…
22 The AAT was bound by s 499(2A) to comply with Direction 55, because it is a direction under s 499(1).
23 The contents of the Direction are identified by cl 5:
5. Contents
This Direction comprises a number of Parts:
| Preamble | Contains the Objectives of this Direction, General Guidance for decision-makers and the Principles that provide a framework within which decision-makers should approach their task of deciding whether to exercise the discretion to cancel or refuse a person’s visa under section 501. |
| Part A | Identifies the considerations relevant to visa holders in determining whether to exercise the discretion to cancel a person’s visa. |
| Part B | Identifies the considerations relevant to visa applicants in determining whether to exercise the discretion to refuse a person’s visa application. |
| Annex A | Provides direction on the application of the character test. The character test is set out in section 501(6) of the Act. |
| Annex B | Defines terms used in the Direction. |
24 Clause 6 provides:
6. Preamble
6.1 Objectives
(1) The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.
(2) Under section 501 of the Act, a person may be refused a visa if the person does not satisfy the decision-maker that they pass the character test. A person may have their visa 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. Where the discretion to refuse to grant or to cancel a visa is enlivened, the decision-maker must consider whether to exercise the discretion to refuse or cancel the visa given the specific circumstances of the case.
(3) The purpose of this Direction is to guide decision-makers performing functions or exercising powers under section 501 of the Act to refuse to grant a visa to, or to cancel the visa of, a person who does not satisfy the Minister that the person passes the character test. Under section 499(2A) of the Act, such decision-makers must comply with a direction made under section 499.
6.2 General Guidance
(1) The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
(2) In order to effectively protect the Australian community from harm, and to maintain integrity and public confidence in the character assessment process, decisions about whether a person’s visa should be refused or cancelled under section 501 should be made in a timely manner once a decision-maker is satisfied that a person does not pass the character test. Timely decisions are also beneficial to the client in providing certainty about their future.
(3) The principles provide a framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizens visa under section 501. The relevant factors that must be considered in making a decision under section 501 of the Act are identified in Part A and Part B of this Direction.
6.3 Principles
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3) In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(4) Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(5) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(6) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
(Emphasis added.)
25 It must be remembered that cl 6 is a preamble. It states objectives, purposes and principles. It is clear that the central task of the decision-maker is to decide whether or not (in the present case at least) to cancel an existing visa. Whether a risk of harm from future conduct is “unacceptable” (to which I will refer again shortly) is a matter to be determined (cl 6.2(1)) but is not determinative (cl 6.3(3)). There may be strong and sufficient countervailing considerations to justify not cancelling the visa. And it must be remembered that the discretion is to be exercised “given the specific circumstances of the case” (cl 6.1(2)).
26 Clauses 1-6 of Direction 55 appear in Section 1 which is entitled “Preliminary”. Section 2 is entitled “Exercising the Discretion”. It contains cl 7 and cl 8.
27 I will return to cl 7, which gives directions about “How to exercise the discretion”.
28 Clause 8 provides:
8. Taking the relevant considerations into account
(1) Decision-makers must take into account the primary and other considerations relevant to the individual case, noting that there are differing considerations for visa holders and visa applicants as articulated in Parts A and B. Separating the considerations for visa holders and visa applicants recognises that persons holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa applicant should have no expectation that a visa application will be approved.
(2) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(3) Both primary and other considerations may weigh in favour of, or against, refusal or cancellation of the visa.
(4) Primary considerations should generally be given greater weight than the other considerations.
(5) One or more primary considerations may outweigh other primary considerations.
(Emphasis added.)
(ii) Primary considerations
29 The “primary” and “other” considerations are then set out in Parts A (visa holders) and B (visa applicants). In Part A the primary considerations are first stated and then developed with further explanation. Thus, cl 9 initially provides:
9. Primary considerations – visa holders
(1) In deciding whether to cancel a person’s visa, the following are primary considerations:
a) Protection of the Australian community from criminal or other serious conduct;
b) The strength, duration and nature of the person’s ties to Australia;
c) The best interests of minor children in Australia;
d) Whether Australia has international non-refoulement obligations to the person.
30 Then cl 9.1 directs that the government is committed to protecting the Australian community and that decision-makers should also give consideration to the nature and seriousness of a person’s conduct and the risk to the Australian community of further offences or other serious conduct. Each of those matters for consideration is then the subject of further elaboration in cl 9.1.1 The nature and seriousness of the conduct and cl 9.1.2 The risk to the Australian community should the person commit further offences or engage in other serious conduct. Clause 9.1.2 provides:
9.1.2 The risk to the Australian community should the person commit further offences or engage in other serious conduct
(1) In considering whether the person represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable. In making this assessment, decision-makers must have regard to, cumulatively:
a) The nature of the harm to individuals or the Australian community should the person engage in further criminal or other serious conduct; and
b) The likelihood of the person engaging in further criminal or other serious conduct, taking into account:
i. information and evidence on the risk of the person reoffending; and
ii. evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
(Emphasis added.)
31 This matter for consideration must, as will be seen, be the subject of a determination by the decision-maker under cl 7. However, it is important to note at this point in the structure of Direction 55 (in general), and cl 9 “Primary considerations – visa holders” (in particular) that it concerns one aspect only of one primary consideration and that cl 8(5) provides that one or more primary considerations may outweigh others. The remaining primary considerations (in cll 9.2, 9.3 and 9.4) must therefore be understood to be ones which might outweigh an unacceptable risk of harm. To put it another way, evaluation of whether a risk of harm is “unacceptable” does not discharge the function of the decision-maker or complete the assigned task.
32 Clause 9.2 provides:
9.2 Strength, duration and nature of the person’s ties to Australia
(1) Reflecting the principles at 6.3, decision-makers must have regard to:
a) How long the person has resided in Australia, including whether the person arrived as a young child, noting that:
i. Less weight should be given where the person began offending soon after arriving in Australia; and
ii. More weight should be given to time the person has spent contributing positively to the Australian community.
b) The strength, duration and nature of any family, social and/or employment links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
33 This is a primary consideration in its own right. It is not automatically subordinated to the “protection” elements in cl 9.1.
34 Clause 9.3 provides:
9.3 Best interests of minor children in Australia affected by the decision
(1) Decision-makers must make a determination about whether cancellation is, or is not, in the best interests of the child.
(2) This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to cancel the visa is expected to be made.
(3) If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
(4) In considering the best interests of the child, the following factors must be considered where relevant:
a) The nature and duration of the relationship between the child and the person. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
b) The extent to which the person is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
c) The impact of the person’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
d) The likely effect that any separation from the person would have on the child, taking into account the child’s ability to maintain contact in other ways;
e) Whether there are other persons who already fulfil a parental role in relation to the child;
f) Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
g) Evidence that the person has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and
h) Evidence that the child has suffered or experienced any physical or emotional trauma arising from the person’s conduct.
35 This is another primary consideration. It is not automatically subordinated to the “protection” consideration in cl 9.1. It should also be noted that decision-makers are directed to make a determination about whether visa cancellation is, or is not, in the best interests of a child. This direction assumes that such a determination is available on the material before the decision-maker (see Paerau v Minister for Immigration and Border Protection (2014) 219 FCR 504) but I draw attention to it here to make a point in due course about the content of cl 7 (to which, as I have said, I will return).
36 Clause 9.4 states another primary consideration. Clause 9.4(1) and (2) provide (cl 9.4(3) not being relevant to this discussion):
9.4 International non-refoulement obligations
(1) In cases where claims which may give rise to international non-refoulement obligations are raised by the person or are clear from the facts of the case, they must be given consideration if the person is in Australia.
(2) The power to cancel a visa is a fundamental exercise of Australian sovereignty. The existence of a non-refoulement obligation does not preclude cancellation of a person’s visa. This is because Australia will not necessarily remove a person, as a consequence of the cancellation of their visa, to the country in respect of which the non-refoulement obligation exists. However, any non-refoulement obligation should be weighed carefully against the seriousness of the person’s criminal offending or other serious conduct in deciding whether or not the person should continue to hold a visa.
…
(Emphasis added.)
37 In my view, it is clear that the assessment required by cl 9.4(2) is not one which is caught up in any evaluation, under the structure of Direction 55, of the matters referred to in cl 9.1 It is an evaluation to be carried out as contemplated by cl 8(5) where one primary consideration (international obligations) is to be weighed against another (protection of the Australian community) or others (including strength, duration and nature of the person’s ties to Australia and the best interests of children).
(iii) Other considerations
38 Finally, in this structural analysis, are the “other” considerations referred to in cl 10:
10. Other considerations – visa holders
(1) In deciding whether to cancel a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):
a) Effect of cancellation of the person’s visa on the person’s immediate family in Australia, if those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely;
b) Impact on Australian business interests;
c) Impact of a decision not to cancel a visa on members of the Australian community, including victims of the person’s criminal behaviour, and the family members of the victim or victims where that information is available and the person being considered for visa cancellation has been afforded procedural fairness;
d) The extent of any impediments that the person may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
i. The person’s age and health;
ii. Whether there are substantial language or cultural barriers; and
iii. Any social, medical and/or economic support available to them in that country.
39 There can be no predetermination of the weight to be given in a particular case to the matters referred to in cl 10. Although primary considerations are generally to be given more weight than the “other” considerations in a particular case, that general position is clearly intended to accommodate exceptions. Furthermore, where primary considerations are conflicting it is obvious that other considerations might be determinative. Again, it is not possible to say that the required evaluation is subsumed in a conclusion about whether a perceived risk of future harm is unacceptable.
(iv) Exercising the discretion
40 Clause 7 appears (with cl 8) in Section 2 Exercising the Discretion. Clause 7 provides:
7. How to exercise the discretion
(1) Informed by the principles in paragraph 6.3 above, a decision-maker:
a) must take into account the considerations in Part A or Part B, where relevant, in order to determine whether a non-citizen will forfeit the privilege of being granted, or of continuing to hold, a visa; and
b) is required to determine whether the risk of future harm by a non-citizen is unacceptable. This requires a balancing exercise, involving a consideration of the likelihood of any future harm, the extent of the potential harm should it occur, and the extent to which, if at all, any risk of future harm should be tolerated by the Australian community.
41 In my view, the requirement in cl 7(1)(b) to determine whether the risk of future harm is unacceptable, which is to be made by balancing factors which are all mentioned in cl 9.1, does not signify that the conclusion about that issue is determinative, or that the evaluation then directed by cl 8 is in any way altered. The requirement to “determine” the issue is in the same category as the requirement in cl 9.3(1) concerning the best interests of children.
42 The instruction in cl 7(1)(a) is a general one. The instruction in cl 8(1) relates to the particular case. With that distinction noted, they complement each other and emphasise that the ultimate decision concerns whether to cancel the existing visa, rather than any of the individual intermediate steps in the path to that outcome.
43 To the extent that Mortimer J may be taken to have expressed a different view about the significance of cl 7(1)(b) in Williams v Minister for Immigration and Border Protection [2014] FCA 674, I respectfully disagree with her Honour.
44 I may now return to the matters upon which the primary judge focussed.
Was there jurisdictional error?
45 As is apparent from the passages which I set out earlier, the primary judge took the view that the AAT had misstated (and perhaps misunderstood) the nature of its task at the end of its decision.
46 I take a different view about the passage which concerned the primary judge.
47 It is important, in my view, to follow the reasoning which is set out in [88] of the AAT decision, and to see it in its proper setting.
48 At [85] the AAT concluded that there were “good grounds” in the present case for regarding protection of the Australian community (i.e. cl 9.1 matters) as determinative, although to that point the AAT had not stated that the risk of future harm was “unacceptable” (as opposed to “real” [68], [85] and “significant” [72]). Then the AAT brought to account the best interests of the respondent’s infant son ([86]) but resolved that conflict by preferring the protection of the Australian community ([87]).
49 Then the AAT turned to matters which clearly relate to the primary consideration in cl 9.2. The AAT referred to judicial “disfavour” of the harsh consequences of denying continued residence to someone who has lived in a country almost all his formative years but noted that no question of obligation arose “to continue the privilege of Australian residence”. It was in this context that the AAT said (in the middle of [88]):
88. … In this situation the length of a non-citizen’s Australian residence, particularly residence as a minor, is a significant, but not determinative matter, in the exercise of the visa cancellation power. …
50 The remarks which followed were not general ones; they were related, in my view, (despite the lack of precision or any infelicity of language) to that same question as it arose under cl 9.2 and as referred to in cl 6.3(4). Thus, the AAT said:
88. … The power is not fettered by any specific restriction in the Migration Act itself, and is only the subject of very general guidance in the principles in Direction no. 55 paragraph 6.3(4). …
51 The reference to Sean Investments, introduced immediately thereafter by the word “Consequently” and followed at [89] by a reference to “Those considerations of comparative importance” serve to indicate that the reference to Sean Investments was directed to the issue of the lack of specific guidance about how to evaluate the matters thus introduced and that the reference to Sean Investments was directed only to the question of attributing “comparative importance” to the competing considerations which arose from Direction 55 itself.
52 The AAT went on to say how that question of comparative importance had been judged by it, and for what reasons.
53 The AAT concluded its exposition of those various stages in its reasoning process by saying:
90. … the preferable course to take is to exercise the visa cancellation power by striking the evaluative balance in favour of the protection of the Australian community from a real, and unacceptable, risk of harm caused by [the respondent] re-offending.
54 I see no error of approach if allowance is made for lack of precision and infelicity of language as, in my view, it should be in this case. I therefore disagree with the primary judge that a jurisdictional error is apparent.
The exercise of power must be affected
55 Although, in the circumstances, it is not strictly necessary to do so, I propose to briefly state my view on two further matters which were argued.
56 In Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 (“Peko-Wallsend”), Mason J said (at 40):
(c) Not every consideration that a decision-maker is bound to take into account but fails to take into account will justify the court setting aside the impugned decision and ordering that the discretion be re-exercised according to law. A factor might be so insignificant that the failure to take it into account could not have materially affected the decision: …
(References omitted.)
57 Those observations were made in a case under the Administrative Decisions (Judicial Review) Act 1977 (Cth) but they speak of a need for substantive error rather than procedural irregularity. In my respectful view, the need to show some actual effect on the exercise of power is equally firmly established when the question of jurisdictional error is under consideration.
58 In Craig v South Australia (1995) 184 CLR 163 (“Craig”). The High Court said (at 179):
If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.
(Emphasis added)
59 In Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, McHugh, Gummow and Hayne JJ (with whom Gleeson CJ agreed) referred (at [82]) to the passage from Craig which I set out above and continued:
82 … “Jurisdictional error” can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig, is not exhaustive. Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it. …
(Citations omitted.)
60 I take it to be established, therefore, that in order to find jurisdictional error it is necessary to find not only an error of understanding or approach, but also a discernible effect on the exercise of power which points to a conclusion that the decision was made without authority because there had been a jurisdictional error.
61 To answer the proposition that it is necessary for a jurisdictional error to have a discernible effect on the exercise of power, the respondent relied on the observations of Crennan and Bell JJ in FTZK v Minister for Immigration and Border Protection (2014) 88 ALJR 754 (“FTZK”) where their Honours found jurisdictional error in a decision of the AAT in circumstances where (at [97]):
97 … It is impossible to state that this failure or flaw in the reasoning could not have materially affected the decision.
(Citation omitted)
62 Their Honours gave a reference to the passage in Peko-Wallsend which I set out earlier. That serves to illustrate that their Honours were addressing a different issue than the point I am endeavouring to make. In FTZK the challenged findings by the AAT were essential to its reasoning. There was no question that the exercise of its power was affected by the errors it made. Their Honours were, in my respectful view, making a different point about relevancy as is clear from [94], where their Honours commenced this part of their reasons with:
94 As to the relevancy ground, …
63 The attack made in the present case on the AAT’s explanation of the approach it took to the overall balancing exercise at the end of its decision should not be allowed, in my respectful view, to divert attention from the fact that it is clear from the whole of the reasons that the AAT followed Direction 55 as required.
64 In the present case, it does not appear to me that there was any failure by the AAT to address the matters which required its attention, or that it was in fact diverted from its task. I would place less significance than the primary judge on the statements in [88] of the AAT decision and would not conclude, as did the primary judge at [33], that any erroneous misstatement (if one was made) was material to the exercise of the AAT’s discretion.
Is clause 7 of Direction 55 invalid?
65 The final matter concerns a Notice of Contention filed by the respondent which sought in substance to agitate Ground 3 before the primary judge, with the added submission that cl 7 of Direction 55 is invalid, because it impermissibly fetters the discretion given by s 501 of the Migration Act.
66 The argument was developed in writing in the following way:
22. The respondent submits that Clause 7 of Direction 55 impermissibly fetters the discretion. Clause 7(1)(a) makes it clear that the answer to the question in clause 7(1)(b) takes place at the point of final decision-once the relevant matters have been considered in accordance with 7(1)(a). Clause 7 is preceded by the heading “How to Exercise the Discretion”. It requires the decision maker first to have regard to the principles set out in the direction as well as the matters stipulated as relevant matters in Part A and Part B in order to answer the question posed by clause 7(1)(b).
23. It is clear that requiring a finding on whether the risk of harm is “unacceptable” because it should not be “tolerated” amounts to a direction that in circumstances where the risk is “unacceptable” the visa must be cancelled.
67 In my view, this argument, and the construction of cl 7 and Direction 55 which it proposes, should not be accepted. For the reasons given earlier, in my view cl 7(1)(b) is addressed contemporaneously to a more limited question than cl 7(1)(a). It does not fetter any discretion under s 501 of the Migration Act and is not invalid.
Conclusion
68 The appeal should be upheld. The orders made by the primary judge upholding the application before him (and orders consequential thereto) should be set aside and in lieu thereof it should be ordered that the appeal from the decision of the AAT be dismissed and the applicant below pay the costs of the first respondent below. The first respondent to the appeal should pay the appellant’s costs of the appeal.
| I certify that the preceding sixty-eight (68) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan. |
Associate:
| IN THE FEDERAL COURT OF AUSTRALIA | |
| NEW SOUTH WALES DISTRICT REGISTRY | |
| GENERAL DIVISION | NSD 474 of 2014 |
| ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA |
| BETWEEN: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION Appellant |
| AND: | RATU NOULU ORVILLE LESIANAWAI First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent |
| JUDGE: | BUCHANAN, PERRY AND GLEESON JJ |
| DATE: | 27 October 2014 |
| PLACE: | SYDNEY |
REASONS FOR JUDGMENT
PERRY J:
1. Introduction
69 The primary judge held that the decision of the Administrative Appeals Tribunal (Tribunal) affirming the decision of the Minister’s delegate to cancel the first respondent’s Class BF Transitional (Permanent) visa was invalid on the ground of jurisdictional error. The jurisdictional error was said to lie in the Tribunal’s statement (at [88]) that its discretion to cancel a visa where a person had failed the character test was the subject of general guidance only by the principles in Direction No. 55 - Direction under Section 499 Migration Act 1958 (Direction No. 55) and that it was for the Tribunal to determine which matters were relevant and their comparative importance. That error was held to be material.
70 These findings are challenged by the Minister on the appeal.
71 There is no dispute between the parties that, by reason of s 499 of the Migration Act 1958 (Cth) (Act), the Tribunal was required to have regard to the primary and secondary considerations set out in Direction No. 55.
72 The issues raised on appeal turn in the first instance on how the Tribunal’s reasons, fairly read, are to be construed. I consider for the reasons set out below that, contrary to the primary judge, the Tribunal did not misapprehend the effect of Direction No. 55 by assuming for itself the task of identifying relevant considerations in a jurisdictional sense or otherwise and therefore that the appeal should be allowed.
73 I would respectfully agree with Justice Buchanan’s reasons at [65]-[67] for rejecting the ground raised in the respondent’s notice of contention.
2. Background
74 The first respondent (the respondent) is a 29-year-old Fijian national. He came to Australia with his parents and brothers in January 1988 shortly after the 1987 military coup in Fiji. They have lived in Australia since that time and the respondent has never returned. The respondent, together with his family, obtained permanent residence visas in November 1999. The respondent is currently serving substantially concurrent custodial sentences of four and six years for selling a prohibited firearm and robbery with a dangerous weapon respectively.
75 The Minister’s delegate (delegate) decided to cancel the respondent’s visa under s 501(2) of the Act. That section 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.
76 Section 496 provides that the Minister may in writing delegate his or her powers.
77 The respondent applied for review of the delegate’s decision under s 500 of the Act. On review, the Tribunal may, by s 43(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act), exercise all of the powers and discretions conferred by the Act on the delegate. In effect, the Tribunal stands in the delegate’s shoes: Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41 at 46. The Tribunal’s function is to reach the correct and preferable decision at the time that it makes its decision: Shi v Migration Agents Registration Authority (2008) 235 CLR 286.
78 The Tribunal found that the respondent did not pass the “character test” as defined in s 501(6) of the Act because he had been sentenced to a term of imprisonment of 12 months or more and therefore had a “substantial criminal record” as defined by s 501(7). As a consequence, the Tribunal’s discretion to cancel his visa under s 501(2) was enlivened. The Tribunal accordingly examined each of the primary and secondary considerations relevant to the respondent under Direction No. 55 and affirmed the delegate’s decision, concluding at [90] that “…the preferable course to take is to exercise a visa cancellation power by striking the evaluative balance in favour of the protection of the Australian community from a real, and unacceptable, risk of harm caused by Mr L re-offending.” I examine more closely the Tribunal’s reasons for reaching this view in considering whether they reveal error, as held by the primary judge.
3. consideration
3.1 Did the primary judge correctly hold that the Tribunal reasons at [88] reveal error?
3.1.1 The Tribunal’s reasons explained
79 In my view, it is apparent from the outset that the Tribunal was aware that it was required to comply with Direction No. 55, being a direction issued by the Minister under s 499 of the Act (see Tribunal’s reasons at [8]). Section 499 relevantly provides:
(1) The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a) the performance of those function; or
(b) the exercise of those powers.
…
(2A) A person or body must comply with the direction under subsection (1).
80 Nonetheless, while compliance with Direction No. 55 is required where the delegate or Tribunal is the decision-maker, the purpose of the Direction “is to guide decision-makers… exercising powers under section 501 of the Act…” (cl 6.1(3)) (emphasis added). The tension that this might appear at first blush to create is resolved by recognising that compliance with Direction No. 55 does not involve dictating the way in which the discretion is to be exercised; rather the Direction creates a framework within which the discretion vested in the decision-maker is lawfully to be exercised. I understand it to be in this sense that the concept of “guidance” is employed in the Direction.
81 In furtherance of this, certain principles are identified in cl 6.3 which “provide a framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizens [sic] visa under section 501.” (cl 6.2(3)). These principles include that:
(3) In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(4) Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
...
(6) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
82 Clause 7(1) of Direction No. 55 provides that, informed by the principles identified in cl 6.3, a decision-maker “must take into account” primary or other considerations where relevant and “is required to determine whether the risk of future harm by a non-citizen is unacceptable”. The latter determination “requires a balancing exercise, involving a consideration of the likelihood of any future harm, the extent of the potential harm should it occur and the extent to which, if at all, any risk of future harm should be tolerated by the Australian community.” (cl 7(1)(b)). The primary considerations in the context of a decision whether to cancel a person’s visa are identified in cl 9(1). Those primary considerations which the Tribunal found to be relevant to the respondent’s case were protection of the Australian community from criminal conduct, the strength, duration and nature of the person’s ties to Australia, and the best interests of minor children in Australia (the three relevant primary considerations). “Other considerations” which must also be taken into account where relevant include, but are not limited to, those identified in cl 10(1) of Direction No. 55.
83 Clause 8(3) recognises that “[b]oth primary and other considerations may weigh in favour of, or against, refusal or cancellation of the visa”. Clause 8 also deals with the manner in which primary considerations are to be weighed against each other and against other considerations. Thus, by virtue of cl 8(4), primary considerations “should generally be given greater weight than the other considerations”, while cl 8(5) provides that “[o]ne or more primary considerations may outweigh other primary considerations” (emphasis added). In my view, the words “should generally” and “may” in cl 8(4) and (5) respectively make it clear that those provisions are intended to provide guidance to the decision-maker as to how the balancing exercise required by Direction No. 55 should be approached which the decision-maker is bound to consider, while leaving it open to the decision-maker to adopt a different approach in the exercise of discretion in the individual case. The fact that Direction No. 55, aside from prescribing relevant considerations in a jurisdictional sense, provides guidance only in this sense as to the manner in which they are to be balanced is in my view a fundamental aspect of the scheme. It equips decision-makers with a width of discretion that enables them to take into account the myriad of different circumstances and different combinations of circumstances that may arise and thereby to reach a result that is fair and rational in all of the circumstances, while ensuring that account is had to those considerations that the legislator has identified as crucial to a lawful decision.
84 The Tribunal’s explanation at [9]-[14] of its reasons as to the considerations to which the Direction requires it to have regard is unexceptional and does not reveal error. The Tribunal then proceeded to make findings in relation to the three primary considerations relevant to the respondent’s case. In addition, the Tribunal had regard to relevant “other considerations”, namely the effect of any cancellation of the respondent’s visa and return to Fiji on his parents, brothers and his fiancÉe, and the respondent’s personal circumstances were he required to return to Fiji and re-establish himself there. No issue is taken with any part of this reasoning by the Tribunal which is, again, unexceptional.
85 The alleged error is said to occur in the last part of the Tribunal’s reasons under the heading “DETERMINING ACCEPTABLE RISK”. The appellant submits that when the offending passages are read in context, no error is apparent notwithstanding that the Tribunal may have expressed itself in less than ideal terms. In this regard is important to bear in mind the oft-quoted passage approved in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 that the reasons of an administrative decision maker are not to be read with an eye keenly attuned to the perception of error.
86 The Tribunal began its discussion under this heading by noting the serious nature of the first respondent’s most recent offences and the real and significant risk of him reoffending. It expressed the view that, in these circumstances, there were good grounds to cancel the visa by regarding as determinative the primary consideration of protection of the Australian community (at [85]). However, the Tribunal then rightly accepted at [86] that it could not regard protection of the Australian community as the only consideration but must balance that against the relevant countervailing considerations applicable to the respondent’s case, namely the quality of his Australian ties and the best interests of his son. These considerations, it will be recalled, are also primary considerations under Direction No. 55. Nonetheless, the Tribunal concluded at the start of [87] that “[m]y assessment is that the visa cancellation power in this instance should be exercised by preferring the purpose of protecting the Australian community from harm.”
87 The reasons which follow at [87]-[90] in my view explain how the Tribunal in fact balanced these competing primary considerations to reach this conclusion and demonstrate that the Tribunal took them into account, as required by Direction No. 55.
88 First, as to the best interests of his son, the Tribunal found at [87] that, in all of the circumstances and in particular the likelihood that the respondent will continue to reoffend and can expect even longer custodial sentences, “...I am not at all satisfied that there is a sound basis to conclude that Mr L is likely to fulfil a significant parental role with his son. Conversely, I am satisfied that SVA [the son’s mother] has both the means and the determination to provide well for her son. I am also satisfied that he [i.e. the son] will be welcomed and sustained within their wider family membership that will remain in Australia.”
89 Secondly, at [88] the Tribunal took into account, also as required by Direction No. 55, the impact of denying the respondent continued residence in the country in which he has spent almost all of his formative years. The Tribunal then referred to authorities where courts have remarked with disfavour upon the harshness of such an exercise of the visa cancellation power. However, the Tribunal also observed that previous authorities have rejected the notion that the proper exercise of the visa cancellation power should be influenced either by the limited deportation power (citing Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566) or by the notion that Australia owes non-citizens some kind of obligation to continue the privilege of Australian residence where they have spent most or all of their minority in Australia.
90 It is in the context of this discussion that the crucial passage said to reveal jurisdictional error is found. Specifically at [88] of its reasons, the Tribunal then stated that, “[i]n this situation” plainly referring to cases where persons have spent most or all of their minority here:
…the length of a non-citizen’s Australian residence, particularly residence as a minor, is a significant, but not determinative matter, in the exercise of the visa cancellation power. The power is not fettered by any specific restriction in the Migration Act itself, and is only the subject of very general guidance in the principles in Direction no. 55 paragraph 6.3(4). Consequently, it is a situation which the remarks of Deane J in Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363 at 375 are appropriate. His Honour said:
… where relevant considerations are not specified, it is largely for the decision-maker, in the light of matters placed before him by the parties, to determine which matters he regards as relevant and the comparative importance to be accorded to matters which he so regards. (emphasis added)
91 The Tribunal then continued immediately thereafter at [89] of its reasons to find that:
Those considerations of comparative importance include full recognition of the additional harshness involved in require [sic] Mr L to leave his immediate and extended family. Finally, it is a large step to deny a father and son the benefit of living together and sharing the joys, and the travails, of ordinary family life.
92 The Tribunal, however, found that the apparent harshness of those steps was mitigated by various factors as a result of which it found that:
... I do not have any degree of real satisfaction that Mr L would be likely to contribute meaningfully, reliably and consistently to the kind of family life that would be in his son’s best interests. I consider it rather more likely that Mr L is at risk of visiting upon his son, SVA [his fiancÉe], and the Australian community, a future at least punctuated, if not typified, by uncontrolled drug addiction and violent criminality. In those circumstances, the preferable course to take is to exercise the visa cancellation power by striking the evaluative balance in favour of the protection of the Australian community from a real, and unacceptable, risk of harm caused by Mr L re-offending.” (at [90])
93 The Tribunal accordingly affirmed the delegate’s decision to cancel the first respondent’s visa.
3.1.2 The primary judge’s reasons for finding error
94 The primary judge accepted at [28] of his reasons that “…a fair reading of the Tribunal’s reasons show that the Tribunal was aware that it had to have regard to the general guidance given by Direction 55 and the relevant primary and secondary considerations set out in that Direction and did so, particularly at [12], [72], [78]-[79], [82]-[84] and [85]-[90] of its reasons.” This finding was not in dispute, leaving aside the findings that his Honour made as a consequence of the reference to the passage in Sean Investments at [88] of the Tribunal’s reasons.
95 Nor did the parties dispute that the first part of the passage in Deane J’s judgment in Sean Investments (quoted at [90] above) was inapposite to describe the task entrusted to the Tribunal. Direction No. 55 in fact specifies relevant considerations by operation of s 499 of the Act, in contrast to the legislation considered in Sean Investments and in contrast to those cases where the Minister and not the delegate is exercising the discretion to cancel a visa under s 501(3) of the Act. It follows that, if the Tribunal considered that it was largely for it to determine what matters were relevant on the basis that relevant considerations were not specified, the Tribunal would have misapprehended the statutory task entrusted to it and wrongly equated its task with that of the Minister.
96 The primary judge held that the Tribunal had misapprehended its statutory task in this way, finding that the Tribunal’s erroneous reference to Sean Investments “cannot be ignored” (at [31]). Specifically, his Honour held that:
32 It is not that the Tribunal did not address and have regard to the matters in paragraph 9.2(1)(a) as, in my opinion, it did so in its discussion of the applicant’s Australian ties, particularly at [79]. Rather, the jurisdictional error was to state as part of its exercise of the ultimate discretion in [88] of its reasons that the visa cancellation power was only the subject of very general guidance in the principles in Direction 55, paragraph 6.3(4) and to reason that it was therefore largely for it, as the decision-maker, to determine which matters the Tribunal regarded as relevant and the comparative importance to be accorded to matters which the Tribunal regarded as relevant.
33 In light of its place in the reasoning of the Tribunal, I cannot conclude that this erroneous misstatement about the fetters on its discretion was immaterial or that there was no material error because the balance of the reasons showed that the Tribunal understood it was fettered in other aspects of the exercise of the discretion to cancel the visa.
34 It may be that the Tribunal was reproducing at the end of [88] what was said in Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom [2006] HCA 50; (2006) 228 CLR 566 at [126]. That decision had been referred to earlier in [88] of the Tribunal’s reasons. But that paragraph in Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom was directed to the position of the Minister and not to the position of the Tribunal. The result is that that source of the reference to Sean Investments Pty Ltd v MacKellar would confirm the error rather than expunge it.
97 The Minister takes issue with this passage. He submits that, read in context, the Tribunal relied only on the second part of the passage from Sean Investments where the Tribunal said that it is largely for the decision-maker to determine the comparative importance to be accorded to relevant matters. Understood in this way, the Minister submitted that the passage at [88] of the Tribunal’s reasons did not reveal error.
3.1.3 Do the Tribunal’s reasons show error?
98 In my opinion, while the choice of authority for the proposition was perhaps unfortunate, the Minister’s construction of the Tribunal’s reasons is correct.
99 First, the statement that the power is not fettered by any “specific restriction” in the Act itself is entirely correct when read in context of the Tribunal’s reasons at [88] (emphasis added). There is nothing in the Act that restricts “the power” to cancel a visa by requiring that the length of a non-citizen’s Australian residence is determinative (or indeed any other consideration).
100 Secondly, in my view, no error is apparent from the statement that “[t]he power ….is only the subject of very general guidance in the principles in Direction no. 55 paragraph 6.3(4).” It is true that the relevant factors that must be considered are identified in detail in the Direction. However, as earlier explained, cl 6.2(3) provides that the principles in cl 6.3 of the Direction are intended to provide only “a framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizens [sic] visa under section 501.” As such, they are expressed at a high degree of generality in terms that reflect their purpose as stated in cl 6.1(3) of providing guidance to decision-makers exercising the power in s 501 of the Act. It is ultimately, therefore, for the Tribunal to determine the extent to which that guidance assists it in approaching its task of deciding whether to refuse or cancel a visa in the particular case, having regard also to the guidance given by cl 8(2)-(5) of the Direction as to the weight that may be given to the primary and other considerations: see [83] above. So understood, I do not read the Tribunal’s reasons as suggesting that it was for the Tribunal to determine which considerations were relevant in the first instance.
101 Thirdly, as the Minister submitted, the Tribunal in fact relies at [89] of its reasons only upon the second part of the passage from Sean Investments, stating that it is largely for the decision-maker to determine the “comparative importance” to be accorded to relevant matters, that is, to weigh up the harshness of requiring the first respondent to leave his family and his son against the protection of the Australian community. The Tribunal did not approach its task as if the Direction did not specify these as relevant considerations that must be taken into account.
102 Finally, in my view the statement by the primary judge at [33] that the balance of the Tribunal’s reasons showed only that the Tribunal understood it was fettered in “other aspects of the exercise of the discretion” (emphasis added) gives insufficient weight to the fact that the Tribunal had correctly described the totality of its task under s 501 and Direction No. 55 at [8]-[14] of its reasons.
103 That being so, I respectfully disagree with the primary judge that the Tribunal’s reasons reveal any jurisdictional error at [88] error and consider that the appeal should be upheld.
| I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perry. |
Associate:
Dated: 27 October 2014
| IN THE FEDERAL COURT OF AUSTRALIA | |
| NEW SOUTH WALES DISTRICT REGISTRY | |
| GENERAL DIVISION | NSD 474 of 2014 |
| ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA |
| BETWEEN: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION Appellant |
| AND: | RATU NOULU ORVILLE LESIANAWAI First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent |
| JUDGES: | BUCHANAN, PERRY AND GLEESON JJ |
| DATE: | 27 October 2014 |
| PLACE: | SYDNEY |
REASONS FOR JUDGMENT
GLEESON J:
104 The appellant (“the Minister”) appeals from the judgment of a single judge of this Court, quashing a decision of the Administrative Appeals Tribunal (“Tribunal”). The primary judge found that the Tribunal had made a jurisdictional error as to the scope of the Tribunal’s discretion in deciding whether to cancel the visa held by the first respondent (“Mr Lesianawai”).
105 The relevant power to cancel a visa (“the visa cancellation power”) is contained in s 501(2) of the Migration Act 1958 (Cth) (“Act”) and applies, relevantly, if a person to whom a visa has been granted does not satisfy the “character test”. By s 501(6) a person who has a “substantial criminal record” (as defined by s 501(7)) does not satisfy the character test. By s 501(7), for the purposes of the character test, a person who has been sentenced to a term of imprisonment of 12 months or more has a substantial criminal record.
106 Mr Lesianawai has a substantial criminal record within the meaning of s 501(7). Although he arrived in Australia from Fiji as an infant with his family in 1988, Mr Lesianawai has never become a citizen of Australia. In November 1999, he and his family members obtained permanent residence visas.
107 By s 499 of the Act, in the exercise of the visa cancellation power the Tribunal was required to comply with Direction No. 55 – Visa refusal and cancellation under s 501 (“Direction 55”).
Error found by the primary judge
108 The primary judge accepted (at [28]) the Minister’s submission that “a fair reading of the Tribunal’s reasons shows that the Tribunal was aware that it had to have regard to the general guidance given by Direction 55 and the relevant primary and secondary considerations set out in the Direction and did so”.
109 However, his Honour found that the Tribunal made a jurisdictional error in the following passage of its decision:
[88]…In this situation the length of a non-citizen’s Australian residence, particularly residence as a minor, is a significant, but not determinative matter, in the exercise of the visa cancellation power. The power is not fettered by any specific restriction in the Migration Act itself, and is only the subject of very general guidance in the principles in Direction no. 55 paragraph 6.3(4). Consequently, it is a situation which the remarks of Deane J in Sean Investments Pty Ltd v MacKellar [1981] FCA 191; (1981) 38 ALR 363 [(“Sean Investments”)] at 375 are appropriate. His Honour said:
... where relevant considerations are not specified, it is largely for the decision-maker, in the light of matters placed before him by the parties, to determine which matters he regards as relevant and the comparative importance to be accorded to matters which he so regards.
110 The primary judge found that the reference to Sean Investments was incorrect because the Tribunal was required to take into account the various considerations specified in Direction 55.
111 The primary judge said:
[31] Although, as I have said, in the earlier part of its reasons the Tribunal did not in fact proceed on the basis that relevant considerations were not specified, the Tribunal’s erroneous reference to [Sean Investments] cannot be ignored.
[32] It is not that the Tribunal did not address and have regard to the matters in paragraph 9.2(1)(a) [of Direction 55] as, in my opinion, it did so in its discussion of the applicant’s Australian ties, particularly at [79]. Rather, the jurisdictional error was to state as part of its exercise of the ultimate discretion in [88] of its reasons that the visa cancellation power was only the subject of very general guidance in the principles in Direction 55, paragraph 6.3(4) and to reason that it was therefore largely for it, as the decision-maker, to determine which matters the Tribunal regarded as relevant and the comparative importance to be accorded to matters which the Tribunal regarded as relevant.
[33] In light of its place in the reasoning of the Tribunal, I cannot conclude that this erroneous misstatement about the fetters on its discretion was immaterial or that there was no material error because the balance of the reasons showed that the Tribunal understood it was fettered in other aspects of the exercise of the discretion to cancel the visa.
[34] It may be that the Tribunal was reproducing at the end of [88] what was said in Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom [2006] HCA 50; (2006) 228 CLR 566 at [126]. That decision had been referred to earlier in [88] of the Tribunal’s reasons. But that paragraph in Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom was directed to the position of the Minister and not to the position of the Tribunal. The result is that that source of the reference to Sean Investments Pty Ltd v MacKellar would confirm the error rather than expunge it.
[35] I therefore uphold this ground.
Grounds of appeal
112 The Minister relies on the following four grounds of appeal:
1. His Honour the primary judge erred in finding:
(a) that the Tribunal’s statement at [88] of its reasons meant that the visa cancellation power was only the subject of very general guidance as to the principles in Direction 55, paragraph 6.3(4); and
(b) that the Tribunal reasoned that it was largely for it to determine which matters it regarded as relevant and the comparative importance to be accorded to them.
2. His Honour ought to have found that the Tribunal’s statement was directed solely at the balancing exercise required by paragraph 7(1)(b) of Direction 55, and in particular, the aspect of tolerance to be considered in that exercise.
3. Alternatively, his Honour erred in finding that the Tribunal’s statement revealed jurisdictional error.
4. His Honour ought to have found that any error revealed by the Tribunal’s statement was immaterial and did not amount to jurisdictional error.
Direction 55
113 Direction 55 comprises the following relevant parts:
1. The preamble, which includes objectives (clause 6.1), general guidance (clause 6.2) and principles (clause 6.3);
2. Section 2 entitled “Exercising the discretion”, including “How to exercise the discretion” (clause 7) and “Taking the relevant considerations into account” (clause 8)
3. Part A including “Primary considerations – visa holders” (clause 9) and “Other considerations – visa holders” (clause 10).
114 Subclause 6.3(4) of Direction 55, referred to by the Tribunal, provides:
Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
115 Clause 7 of Direction 55, headed “How to exercise the discretion” states:
(1) Informed by the principles in paragraph 6.3 above, a decision-maker:
(a) must take into account the considerations in Part A …where relevant, in order to determine whether a non-citizen will forfeit the privilege of being granted...a visa, and
(b) is required to determine whether the risk of future harm by a non-citizen is unacceptable. This requires a balancing exercise, involving a consideration of the likelihood of any future harm, the extent of the potential harm should it occur and the extent to which, if at all, any risk of future harm should be tolerated by the Australian community.
116 Clause 8 of Direction 55, headed “Taking the relevant considerations into account” states:
(1) Decision-makers must take into account the primary and other considerations relevant to the individual case, noting that there are differing considerations for visa holders and visa applicants as articulated in Parts A and B. Separating the considerations for visa holders and visa applicants recognises that persons holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of the visa, whereas a visa applicant should have no expectation that a visa application will be approved.
(2) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(3) Both primary and other considerations may weight in favour of, or against, refusal or cancellation of the visa.
(4) Primary considerations should generally be given greater weight than the other considerations.
(5) One or more primary considerations may outweigh other primary considerations.
117 Paragraph 9.2(1)(a) of Direction 55, referred to by the primary judge, provides:
(1) Reflecting the principles at 6.3, decision-makers must have regard to:
(a) How long the person has resided in Australia, including whether the person arrived as a young child, noting that:
(i) Less weight should be given where the person began offending soon after arriving in Australia; and
(ii) More weight should be given to time the person has spent contributing positively to the Australian community.
118 The primary judge acknowledged that the Tribunal had addressed the matters referred to paragraph 9.2(1)(a), particularly at [79] of the Tribunal’s decision which said:
However the strength of those considerations [concerning the strength and nature of the respondent’s ties to Australia] is reduced by the facts that (i) he has spent almost the preponderance of his adult years in prison, (ii) his serious offending began in his teenage years, (iii) he has continued to offend, and to display little evidence of sustained capacity to reform, and (iv) he is unable to point to any strong links to the Australian community, other than his own family members, his fiancÉe and his infant son. Because of the limited periods during which Mr L has been at liberty since May 2002, he has no significant work qualifications or experience.
First and second grounds of appeal
119 In essence, the Minister’s contention is that the primary judge misconstrued the Tribunal’s reasons. The Minister argued that, correctly interpreted, it was the balancing exercise required by paragraph 7(1)(b) of Direction 55 that was said to be “only the subject of very general guidance in the principles in [Direction 55] paragraph 6.4(4)”. In support of this contention, counsel for the Minister, Mr Smith, emphasised the context in which [88] of the reasons appears, including:
1. The Tribunal’s recognition (at [8]) that it was bound to comply with Direction 55;
2. The Tribunal’s recognition (at [11]) that Direction 55 required it to take into account a number of specific considerations, characterised as primary and other considerations. The Tribunal recognised that primary considerations were matters that must be taken into account and which should generally be given greater weight. Other considerations were matters to which a decision maker should attach less weight;
3. The Tribunal’s systematic review of Mr Lesianawai’s situation by reference to the primary and other considerations set out in Direction 55;
4. The Tribunal’s statement (at [13]) that the “evident potential for tension between the various “primary” considerations, and between those considerations and at least some of the “other” considerations, points to the exercise of the visa cancellation power requiring a “balancing” exercise”;
5. That [88] of the Tribunal’s reasons is in the final section of the reasons, entitled “Determining acceptable risk”. The first two paragraphs of that section, [85] and [86], are squarely directed to the considerations identified in paragraph 7(1)(b) of Direction 55, which requires the decision-maker to determine whether the risk of future harm by the non-citizen is unacceptable. Mr Smith submitted that, in that context, the passage from Sean Investments in [88] is relevant only to the determination of whether the risk of future harm was unacceptable and not to the wider question of whether to exercise the visa cancellation power;
6. The reference to paragraph 6.3(4) of Direction 55 in [88]. Mr Smith submitted that this reference also shows that the Tribunal was not considering the correct approach to exercising the visa cancellation power but the narrower question of whether the respondent posed an unacceptable risk to the Australian community. Mr Smith argued that the Tribunal could not have intended to say that the visa cancellation power is “only the subject of very general guidance in the principles in [Direction 55] paragraph 6.3(4)” because the reasons reveal a clear appreciation of the detail of the direction. On the other hand, paragraph 6.3(4) is the only provision in Direction 55 which is directed to the issue identified in paragraph 7(1)(b) of the extent to which, if at all, any risk of future harm should be tolerated;
7. [89] of the Tribunal’s reasons adopts the language of the passage from Sean Investments by referring to “considerations of comparative importance”. Mr Smith submitted that, in this passage, the Tribunal was continuing to address the narrow question of the degree to which the risk of future harm caused by the respondent should be tolerated by the Australian community.
120 The reasons of the Tribunal should be given a beneficial construction, not concerned with “looseness in the language ... nor with unhappy phrasing”: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280. See also Salahuddin v Minister for Immigration and Border Protection [2013] FCAFC 141 at [19] to [22] (Flick J, Katzmann and Wigney JJ agreeing). Even so, in my view, there is no over-zealousness in the primary judge’s interpretation of the Tribunal’s reasons. In my respectful opinion, the primary judge correctly interpreted [88] and [89] of the Tribunal’s reasons as directed to the question of how to exercise the visa cancellation power. Thus, I agree with the primary judge that the Tribunal did indeed reason that it was largely for it, as the decision-maker to determine which matters the Tribunal regarded as relevant and the comparative importance to be accorded to those matters. This reasoning involved an error of law. My agreement with the primary judge’s interpretation is based on the following reasons:
1. Despite the heading “Determining acceptable risk”, in paragraphs [85] and following, the Tribunal was addressing the ultimate question of whether the visa cancellation power should be exercised. This appears from the following statements and elements of the reasons:
(a) “[T]here are good grounds to exercise the visa cancellation power in this case by regarding as determinative the primary consideration of protection of the Australian community” ([85]);
(b) “The weight of that protective consideration has to be assessed against” other matters which “count against” the cancellation of the visa ([86]);
(c) The Tribunal’s assessment that the visa cancellation power should be exercised ([87]);
(d) The observation that there are numerous cases where the harshness of the exercise of a visa cancellation power has been remarked upon with significant disfavour. “Nevertheless, previous decisions have rejected the notion that the proper exercise of the visa cancellation decision should be influenced by certain specified matters” ([88]) (emphasis added);
(e) “[T]he length of a non-citizen’s Australian residence, particularly… as a minor, is a significant but not determinative matter, in the exercise of the visa cancellation power” ([88]) (emphasis added) ;
(f) The preferable course to take is to exercise the visa cancellation power ([90]).
2. At least at face value, when the Tribunal said at [88] “The power is not fettered by any specific restriction”, it was referring to the power mentioned in the previous sentence which was the visa cancellation power;
3. There is only one power to which the observation that “[t]he power is not fettered by any specific restriction in the Act itself” can refer, and that is the visa cancellation power. There is no other relevant power. In oral argument, counsel for the Minister himself read the words this way. Further, as Perry J has observed, it is not necessarily incorrect to say that the visa cancellation power is not fettered by any specific restriction in the Act. The power is fettered by Direction 55, made pursuant to s 499 of the Act;
4. Once it is accepted that what the Tribunal identified as not fettered by a specific restriction in the Act is the visa cancellation power, then, unless the Tribunal has omitted some words by error, the Tribunal can only have been referring to the visa cancellation power as that which is “only the subject of very general guidance”;
5. At [89], the Tribunal’s identification of “considerations of comparative importance”, adopting the language of Sean Investments, concerns matters that could be regarded as germane to the narrower question of the extent to which risk of misconduct should be tolerated. However, an equally plausible interpretation of [89] is that it forms part of the Tribunal’s consideration of the broader question whether the visa should be cancelled.
121 The primary judge’s interpretation is also supported by the last sentence of [88], which says “it is a situation” in which the passage from Sean Investments applies. The natural reading of that sentence refers back to the “situation” discussed earlier in [88], which is the case where a visa holder’s Australian residence has involved “either the predominant part, or the whole, of their minority” or a visa holder has “spent almost all of his formative years” in Australia. In my view, a fair reading is that [88] addresses the question posed in the first sentence of [88], which is whether to exercise the visa cancellation power having regard to the fact that Mr Lesianawai has spent almost his life in Australia.
122 In my opinion, the primary judge’s interpretation is also supported by the Tribunal’s earlier analysis of Direction 55 at [10] to [14]. In those paragraphs, the Tribunal addresses the approach to the exercise of its discretion and, particularly, the weight to be given to various considerations. At [13], the Tribunal notes that the exercise of the visa cancellation power requires a “balancing” exercise” and at [14] concludes:
That “balancing” exercise is one that requires a comparative, but ultimately impressionistic evaluation of the totality of the relevant circumstances. This evaluation has to be carried out against the background of the objectives and principles described in Direction 55. It requires a careful and accurate assimilation of all the circumstances relevant to the particular non-citizen who contests their visa cancellation.
123 In my opinion, the reference to Sean Investments in [88] attempts to answer the question explored by [10] to [14] of the reasons, which is how the Tribunal should exercise its discretion in the face of primary considerations which might point to opposite conclusions, and in the face of factual matters that might be relevant to more than one relevant consideration. However, Sean Investments does not provide an answer to that question. The passage from Sean Investments was directed to a different question, namely, how a Minister should exercise his or her discretion in the absence of explicit legislative guidance and whether, in the relevant circumstances, there had been a failure to take into account a relevant consideration. In this case, the Tribunal’s task was to decide whether to exercise the visa cancellation power, in compliance with Direction 55. By citing Sean Investments, the Tribunal introduced an approach to its decision-making that directly conflicted with the requirement to comply with Direction 55: cf Baker v Minister for Immigration and Citizenship [2012] FCAFC 145 at [46] to [47].
124 Dealing with ground 1(b) before 1(a), as I read [88], the Tribunal was saying that, in reaching the ultimate decision to exercise the visa cancellation power, the Sean Investments passage provided guidance about how much weight to place on the circumstance that Mr Lesianawai had spent almost all of his formative years in Australia. That interpretation is consistent with the statement that “[t]he power is not fettered by any specific restriction in the Migration Act itself”. Although I acknowledge that this construction is difficult to reconcile with the Tribunal’s previous apparent appreciation of the applicability of Division 55, I agree with the primary judge that the Tribunal explicitly reasoned, at the crucial point of deciding whether to exercise the visa cancellation power, that it was largely for the Tribunal to determine which matters it regarded as relevant and the comparative importance to be accorded to them.
125 Accordingly, I would reject ground 1(b) of the grounds of appeal.
126 This leaves the question raised by ground 1(a). The primary judge found that the Tribunal made a statement that was simply wrong. That was the statement that the visa cancellation power was only the subject of very general guidance in the principles in Direction 55, subclause 6.3(4). The statement was wrong if it was intended to convey that the power is not the subject of very detailed guidance in Direction 55.
127 However, in my view, there is another way of reading this aspect of [88]. In my opinion, what the Tribunal was saying was that the question of how to factor the length of Mr Lesianawai’s Australian residence into the ultimate decision of whether to exercise the visa cancellation power was a question which is only the subject of very general guidance in subclause 6.3(4).
128 In my opinion, this alternate construction of [88] of the Tribunal’s reasons is preferable and does not disclose any error of law. Accordingly, I would uphold ground 1(a) of the grounds of appeal.
129 It follows from my conclusion as to ground 1(b) of the grounds of appeal that I would also reject ground 2.
Third and fourth ground of appeal
130 Counsel for the Minister addressed the third and fourth grounds of appeal together. In effect, he submitted that any misstatement by the Tribunal of the relevant law was immaterial and “[a]nother way of saying the same thing is that the error was not jurisdictional”.
131 The primary judge said (at [33]) that he could not conclude that the misstatement was immaterial or that there was no material error because the balance of the reasons showed that the Tribunal understood it was fettered by Direction 55 in the exercise of the discretion to cancel the visa.
132 On my interpretation of the Tribunal’s reasons, the Tribunal misstated the correct approach to the exercise of the visa cancellation power. The Tribunal wrongly reasoned that that it was largely for the Tribunal to determine which matters were relevant and the comparative importance to be accorded to those matters. This reasoning was in conflict with the true position, which was that the Tribunal was required to comply with Direction 55.
133 In Craig v South Australia (1995) 184 CLR 163 (“Craig”), at 179, the High Court said:
If … an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.
134 In Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, after referring to the above passage in Craig, McHugh, Gummow and Hayne JJ (with whom Gleeson CJ agreed) said (at [82]):
“Jurisdictional error” can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig, is not exhaustive. Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it. Nothing in the Act suggests that the Tribunal is given authority to authoritatively determine questions of law or to make a decision otherwise than in accordance with the law. [citations omitted]
135 In my view, the Tribunal’s error of law demonstrably affected its exercise of power by:
1. The explicit application of the language of Sean Investments in [89] of the Tribunal’s reasons; and
2. The final sentence in paragraph [90] of the reasons, in which the Tribunal states that it exercised the visa cancellation power by striking an “evaluative balance”. While I accept that this language does not of itself demonstrate any error of law, in the context of the citation from Sean Investments, in my view, an inference should be drawn that the evaluative balance was struck by reference to the approach mandated by that passage.
136 Such an error is a jurisdictional error. It follows that I would reject ground 3 of the grounds of appeal.
Fourth ground of appeal
137 The Minister argued that the Tribunal was required by Direction 55 to conduct the balancing exercise which it did to reach its conclusion, and the factors referred to by the Tribunal in its final balancing process were predominantly those required by Direction 55 to be primary considerations and were all described as such in the Tribunal’s reasons. Further, apart from the reference to Sean Investments, the Tribunal’s reasons showed that it followed and applied Direction 55. As a result, any error of law was immaterial.
138 In House v Defence Force Retirement and Death Benefits Authority (2011) 193 FCR 112 at [31], Greenwood J said:
…when the Court is considering whether an applicant should be denied relief on the ground that a demonstrated error of law could not have materially affected the Tribunal’s decision, the Court must be satisfied that the error of law did not deny the aggrieved applicant of the possibility of a successful outcome ([Refugee Review Tribunal, Re; Ex parte Aala (2000) 204 CLR 82 (“Ex parte Aala”)]; [Lu v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 141 FCR 346.(“Lu v MIMIA”)]) or, put another way, the error of law (ultimately relevant to the Tribunal’s findings of fact) could make no difference (Gleeson CJ, Ex parte Aala) to the result already reached. Dismissing an appeal in the face of a demonstrated error of law, on the ground that the decision of the Tribunal is “clearly correct”, is to be understood as a conclusion that the Court is satisfied the demonstrated error did not deny the aggrieved applicant of the possibility of a successful outcome. A conclusion that the Tribunal’s decision is “clearly correct” necessarily means no possibility of a successful outcome on the material before the Tribunal subsists. A test framed by the Full Court in Hill v Repatriation Commission [(2005) 40 AAR 500] in terms of the Court not refusing relief if satisfied that the error of law “arguably even possibly” affected the decision reached is simply an emphatic restatement of the test in Ex parte Aala and applied in Lu v MIMIA that relief will not be refused in the face of demonstrated error unless there is no possibility of a successful outcome.
139 See also FTZK v Minister for Immigration and Boarder Protection (2014) 310 ALR 1 at [97] (Crennan and Bell JJ).
140 In my view, it is not reasonable to assume (as the Minister’s submissions appear to do) that the Tribunal would have reached the same result had it not referred to Sean Investments. I accept that the prospect of a different outcome is unlikely. However I am not satisfied that the error of law did not deny the aggrieved applicant the possibility of a successful outcome because of my conclusion that the Tribunal’s error of law demonstrably affected its exercise of power.
141 Accordingly, his Honour did not err in finding that the Tribunal’s error of law was not immaterial. Consequently, I would reject the fourth ground of appeal.
| I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gleeson. |
Associate:
Dated: 27 October 2014
