FEDERAL COURT OF AUSTRALIA

Jagroop v Minister for Immigration and Border Protection [2016] FCAFC 48

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The applicant pay the first respondent’s costs of and incidental to the application.

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

REASONS FOR JUDGMENT

DOWSETT J:

1    I have read the reasons prepared by Kenny and Mortimer JJ. I agree with their Honours’ reasons and the proposed orders.

Associate:

Dated: 15 April 2016

REASONS FOR JUDGMENT

KENNY AND MORTIMER JJ:

2    This is an application for judicial review of the decision of a presidential member of the Administrative Appeals Tribunal, made on 25 September 2015, affirming a delegate’s decision to cancel the applicant’s skilled visa. The Court is constituted as a Full Court pursuant to s 44(3) of the Administrative Appeals Tribunal Act 1975 (Cth).

3    The issue on judicial review concerns the Tribunal’s application of a Ministerial Direction which contains directions given by the Minister pursuant to the powers conferred on him by s 499 of the Migration Act 1958 (Cth). Those directions deal with what is described in the Direction as “a framework within which decision-makers should approach their task of deciding whether to exercise the discretion to cancel or refuse a non-citizen’s visa under section 501 or to revoke a mandatory cancellation under section 501CA”.

4    The current version of the Direction is entitled “Direction No. 65”. That is the version the Tribunal applied in making its decision. The applicant’s contention is that the Tribunal should have applied the former version of the Direction, which is entitled “Direction No. 55”. In reliance on Esber v Commonwealth [1992] HCA 20; 174 CLR 430, he contends he had a right to a decision by the Tribunal on review that applied Direction No. 55 as the Direction which was in force at the time he made his application to the Tribunal in February 2013.

5    The focus of argument before this Court was on the characterisation of the Directions as either legislative or administrative in nature. In our opinion, the real issue is the application of s 7(2)(c) of the Acts Interpretation Act 1901 (Cth) and whether the applicant had acquired or accrued a right under Direction No. 55, upon which the terms of s 7(2)(c) could operate.

6    For the reasons set out below, we do not consider the applicant accrued or acquired any right under Direction No. 55, and therefore we would dismiss the application.

BACKGROUND

7    The applicant is a Fijian citizen who had previously been to Australia on a tourist visa, but who relevantly entered Australia on 2 November 2003 as the holder of a Skilled – Australian-sponsored (Migrant) (Class BQ) visa, subclass 139 (Skilled – Designated Area-sponsored). The applicant returned to Fiji for short visits on several occasions, but continued to reside in Australia until he left voluntarily in early 2014 and returned to Fiji.

8    During some of these 11 years in Australia, the applicant was incarcerated. As the Tribunal’s decision on review records, the applicant was convicted of the manslaughter of his then wife, Nileshni Singh, who had come to Australia from Fiji in February 2006, having married the applicant secretly in Fiji in June 2005. In December 2007, the applicant pleaded guilty in the Supreme Court of Victoria to one count of criminally negligent manslaughter. He was sentenced on 13 February 2008 to imprisonment for ten years with a non-parole period of seven years, a sentence subsequently reduced by the Court of Appeal in March 2009 to eight years’ imprisonment with a non-parole period of five years and six months.

9    The applicant was released on parole on 21 December 2011.

10    The applicant lived in the community for almost a year before receiving, in November 2012, a notice from the Department of Immigration and Citizenship that consideration was being given to whether to cancel his skilled visa under s 501(2) of the Migration Act on the basis that he did not pass the character test in the Migration Act.

11    A deliberative process then ensued, during which the applicant made submissions to the Department as to why his skilled visa should not be cancelled.

12    On 30 January 2013, a delegate of the Minister decided, pursuant to s 501(2) of the Migration Act, to cancel the applicant’s skilled visa. The applicant applied to the Tribunal for review of the delegate’s decision on 6 February 2013, and on 19 April 2013, the Tribunal affirmed the delegate’s decision. In doing so, the Tribunal applied Direction No. 55 concerning visa refusal and cancellation under s 501 of the Migration Act. The Tribunal’s decision was eventually set aside by a Full Court of this Court on 23 September 2014, and the matter was remitted to the Tribunal for determination.

13    After the Full Court’s decision, in December 2014, Direction No. 65 was made, and in its terms it revoked Direction No. 55.

14    On remitter, there was no dispute that the applicant did not pass the character test set out in s 501(6) and so the residual discretionary power in s 501(2) fell to be exercised. The applicant contended before the Tribunal that although Direction No. 55 had been revoked in the intervening period, it should apply to his review in preference to Direction No. 65. Contrary to that contention, the Tribunal decided Direction No. 65 was applicable.

RELEVANT STATUTORY PROVISIONS

15    The Minister, and his delegates, are empowered to cancel a person’s visa on character grounds by, amongst other provisions, s 501(2) of the Migration Act, which 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.

16    If the preconditions in paragraphs (a) and (b) are met, then the residual discretion in s 501(2) arises. Directions Nos. 55 and 65 deal with that residual discretion which is, in its terms, unconfined in the Act.

17    Both Directions were made under s 499 of the Migration Act, which 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.

(1A)     For example, a direction under subsection (1) could require a person or body to exercise the power under section 501 instead of the power under section 200 (as it applies because of section 201) in circumstances where both powers apply.

(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).

(3)    The Minister shall cause a copy of any direction given under subsection (1) to be laid before each House of the Parliament within 15 sitting days of that House after that direction was given.

(4)    Subsection (1) does not limit subsection 496(1A).

18    There are some slight differences between the two Directions, none of which were contended to be material except for the placement of cl 9.2, and we return to this issue at [34] and [79] below.

19    By the Acts and Instruments (Framework Reform) Act 2015 (Cth), the Legislative Instruments Act 2003 (Cth) was amended and renamed the Legislation Act 2003 (Cth). This and other amendments to the Legislative Instruments Act, and associated changes to the Acts Interpretation Act, took effect from 5 March 2016. The Legislation Act itself has since been amended. None of the amendments affect our conclusion that there was no jurisdictional error of the kind for which the applicant contended. In these reasons, we refer to the provisions of the Legislative Instruments Act as they were at the time of the Tribunal’s decision.

20    Two sections in the Legislative Instruments Act were relied on by the applicant. The first was s 5, which at that time provided:

5    Definition—a legislative instrument

(1)    Subject to sections 6, 7 and 9, a legislative instrument is an instrument in writing:

(a)    that is of a legislative character; and

(b)    that is or was made in the exercise of a power delegated by the Parliament.

(2)    Without limiting the generality of subsection (1), an instrument is taken to be of a legislative character if:

(a)    it determines the law or alters the content of the law, rather than applying the law in a particular case; and

(b)    it has the direct or indirect effect of affecting a privilege or interest, imposing an obligation, creating a right, or varying or removing an obligation or right.

(3)    An instrument that is registered is taken, by virtue of that registration and despite anything else in this Act, to be a legislative instrument.

(4)    If some provisions of an instrument are of a legislative character and others are of an administrative character, the instrument is taken to be a legislative instrument for the purposes of this Act.

21    The second was s 13(1)(a), which dealt with the effect of an instrument being found to be within s 5, insofar as that effect advanced the steps in the applicant’s argument which led him to s 7(2)(c) of the Acts Interpretation Act. When the Tribunal made its decision, s 13 stated:

13    Construction of legislative instruments

(1)    If enabling legislation confers on a rule-maker the power to make a legislative instrument, then, unless the contrary intention appears:

(a)    the Acts Interpretation Act 1901 applies to any legislative instrument so made as if it were an Act and as if each provision of the legislative instrument were a section of an Act …

22    We note at this point that there was some reference in argument before the Court to s 7 of the Legislative Instruments Act, in which certain instruments there specified were declared not to be legislative instruments. Item 21 in the table in s 7 referred to instruments “that comprise, in their entirety, directions to delegates”. (See now Legislation (Exemptions and Other Matters) Regulation 2015 (Cth), s 6(1), items 1 and 2.) Neither party submitted that this provision was relevant to the determination of this appeal and it is unnecessary to address it further.

23    Through the route of ss 5 and 13(1)(a) of the Legislative Instruments Act, the applicant’s argument arrived at s 7(2)(c) of the Acts Interpretation Act, which is the setting for his argument about the application of Direction No. 55 to his review in the Tribunal. Section 7 should be set out in its entirety.

7    Effect of repeal or amendment of Act

No revival of other Act or part

(1)    The repeal of an Act, or of a part of an Act, that repealed an Act (the old Act) or part (the old part) of an Act does not revive the old Act or old part, unless express provision is made for the revival.

No effect on previous operation of Act or part

(2)    If an Act, or an instrument under an Act, repeals or amends an Act (the affected Act) or a part of an Act, then the repeal or amendment does not:

(a)    revive anything not in force or existing at the time at which the repeal or amendment takes effect; or

(b)    affect the previous operation of the affected Act or part (including any amendment made by the affected Act or part), or anything duly done or suffered under the affected Act or part; or

(c)    affect any right, privilege, obligation or liability acquired, accrued or incurred under the affected Act or part; or

(d)    affect any penalty, forfeiture or punishment incurred in respect of any offence committed against the affected Act or part; or

(e)    affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment.

Any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if the affected Act or part had not been repealed or amended.

Note:    The Act that makes the repeal or amendment, or provides for the instrument to make the repeal or amendment, may be different from or the same as, the affected Act or the Act containing the part repealed or amended.

Interpretation

(3)    A reference in subsection (1) or (2) to the repeal or amendment of an Act or of a part of an Act includes a reference to:

(a)    a repeal or amendment effected by implication; and

(b)    the expiry, lapsing or cessation of effect of the Act or part; and

(c)    the abrogation or limitation of the effect of the Act or part; and

(d)    the exclusion of the application of the Act or part to any person, subject-matter or circumstance.

(4)    A reference in this section to a part of an Act includes a reference to any provision of, or words, figures, drawings or symbols in, an Act.

24    The other route to s 7(2)(c) was through s 46 of the Acts Interpretation Act. The operation of s 46 means, in our opinion, that it is unnecessary to determine finally the characterisation of Direction No. 55 as a legislative or administrative instrument. At the time of the Tribunal’s decision, s 46 was in the following terms:

(1)    If a provision confers on an authority the power to make an instrument that is neither a legislative instrument for the purposes of the Legislative Instruments Act 2003 nor a rule of court, then:

(a)    this Act applies to any instrument so made as if it were an Act and as if each provision of the instrument were a section of an Act; and

(b)    expressions used in any instrument so made have the same meaning as in the enabling legislation as in force from time to time; and

(c)    any instrument so made is to be read and construed subject to the enabling legislation as in force from time to time, and so as not to exceed the power of the authority.

(2)    If any instrument so made would, but for this subsection, be construed as being in excess of the authority’s power, it is to be taken to be a valid instrument to the extent to which it is not in excess of that power.

25    This provision had a parallel, in relation to legislative instruments, in s 13 of the Legislative Instruments Act. The effect of both provisions was that for the purposes of the application of s 7(2) of the Acts Interpretation Act, unless there was a contrary intention, the operation and application of instruments of either a legislative or administrative character could be affected by the terms of s 7(2)(c). In this circumstance, assuming there was no contrary intention for the purposes of applying s 7(2), the outcome of this appeal turned on whether the applicant had acquired a right under Direction No. 55, which engaged s 7(2)(c) of the Acts Interpretation Act.

THE TRIBUNAL’S DECISION

26    On the issue of which Direction was applicable, the focus of the argument before the Tribunal, and therefore its reasoning, was on the question whether Direction No. 55 was a legislative instrument. This led to the application of s 7(2)(c) of the Acts Interpretation Act through the route of ss 5 and 13 of the Legislative Instruments Act. Although that focus was unnecessary for the reasons we have just explained, given the way the matter was argued before it, the Tribunal’s approach on the review cannot reasonably be criticised. We turn to set out its reasoning.

27    The Tribunal recognised that given neither Direction No. 55 nor Direction No. 65 was registered in accordance with the Legislative Instruments Act, the deeming provision in s 5(3) did not operate in respect of them. In considering the other aspects of the definition of “legislative instrument” in s 5 of the Legislative Instruments Act, the Tribunal did not accept that directions given under s 499, while they were instruments in writing, bore a “legislative character” as s 5(1)(a) of the Legislative Instruments Act then required. Contrasting directions given under s 499 of the Migration Act with a determination made under s 85 of the Migration Act, the Tribunal said at [45]-[46]:

A determination of the sort made under s 85 of the Migration Act does determine the law in that it limits the application of the law so that a visa may only be granted to those who meet the quota restrictions. Qualification under the Migration Act and Regulations is insufficient. That is a qualification to the law as it would otherwise apply. That same is true of those determinations that the Migration Act specifies must be made by legislative instrument.

The Directions made under s 499 are, however, in a different category. The power that Parliament has given to the Minister under s 499 is not to modify what would otherwise be the operation of the law. Section 499(2) specifically provides that the Minister does not have power to give directions that would be inconsistent with the Migration Act or regulations made under it. If directions made under s 499 were characterised as a modification or variation of what was provided for by Parliament in the legislation, be it the Act or Regulations, that would be contrary to s 499(2).

28    Considering the common law position, and the judgment of Gummow J in Queensland Medical Laboratory v Blewett (1988) 84 ALR 615, the Tribunal concluded (at [52]) the same characterisation would be appropriate:

It was the latter proposition that was of central importance in QML and decisive of it. In this case, the proper characterisation of Directions 55 and 65 is that of their being of an administrative character. It is of general application and, while it is clearly intended to ensure that the discretion conferred by s 501 is exercised within quite defined constraints, it does not seek to change the rights, duties, powers or privileges given under the Migration Act or the Regulations made under it.

29    Further, relying on the description by Davies J in Jebb v Repatriation Commission (1988) 8 AAR 285; 80 ALR 329, and adopted by Kirby J in Shi v Migration Agents Registration Authority (2008) 235 CLR 286, of the Tribunal’s review function generally occurring on a continuum of decision making, taking into account events that occur up to the date of its decision unless the legislative scheme involved in its review requires otherwise, the Tribunal said (at [58]-[59]):

In enacting the Migration Act, Parliament has not chosen to modify the application of s 43(6) of the AAT Act. Were I to set aside the delegate’s decision and substitute a decision that Mr Jagroop’s visa not be cancelled, the effect of s 43(6) would be to deem my decision to be that of the delegate and so of the Minister. Unless I were to order otherwise, it would have effect from the day on which the delegate's decision had effect. To use the words of Kiefel J in Shi “... This does not suggest the date of the authority’s decision to be critical for this purpose . ...”

It follows that my review of the delegate’s decision following the remittal from the Federal Court is a review that will consider the same issues and questions as considered by the delegate. I will not, however, be limited to the evidentiary material that was before the delegate or to evidentiary material that sheds light on that material. Provided the procedures in ss 500(6A) to (6L) are followed, I may have regard to all relevant evidentiary material regardless of when it came into being and regardless of whether it relates to subsequent events. My consideration will not be confined to whether or not the cancellation decision was the correct or preferable decision to make at the time it was made. It will, instead, be a consideration of whether or not the correct or preferable decision to make at the present time is to cancel Mr Jagroop’s visa. As I will be making that decision at a time at which Direction No. 65 is current, that is the Direction to which I must have regard. Direction No. 55 applied in a time past and no longer has relevance. Having identified Direction No. 65 as the relevant direction, I am obliged to comply with it as required by s 499(2A).

[Footnotes omitted.]

30    The remainder of the Tribunal’s decision, including its reasoning on what it saw as another preliminary legal issue, and its reasoning on why the Tribunal decided not to exercise its residual discretionary power in s 501(2) in favour of the applicant, are not material to the determination of the judicial review application and we need not set them out in these reasons.

THE APPLICATION TO THIS COURT

31    This Court’s jurisdiction under s 39B of the Judiciary Act 1903 (Cth) is the only jurisdiction invoked. That jurisdiction is preserved by s 476A(1)(b) of the Migration Act.

Applicant’s submissions

32    There were two principal steps in the applicant’s argument. The first was the characterisation of the Direction as a legislative instrument, on the basis it is of a “legislative character” within the terms of s 5(1) of the Legislative Instruments Act. Building on that argument, the applicant then contended that by the operation of s 13(1)(a) of the Legislative Instruments Act, the terms of s 7(2)(c) of the Acts Interpretation Act were applicable.

33    By these two steps, the applicant contends he had, at the time of applying to the Tribunal for review of the cancellation decision, a right to a review conducted in accordance with the “principles and considerations” set out in Direction No. 55, rather than those set out in Direction No. 65. He contended his situation was akin to that of the plaintiff in Esber 174 CLR 430 and that the reasoning of the majority of the High Court in that case could and should be applied to his circumstances.

34    Although his principal submission was that it was not necessary for the Court to determine the question, the applicant did contend that the terms of Direction No. 55 are more beneficial to him because the consideration headed “Strength, duration and nature of the person’s ties to Australia” was a primary consideration under cl 9.2 of Direction No. 55, and therefore (by reason of cl 8(4)) to be “generally” given greater weight than other considerations. In contrast, in Direction No. 65, “The strength, nature and duration of ties to Australia” is now located in cl 10.2, under the heading “Other considerations” (and, the applicant submitted, likely to be given less weight).

35    The Minister did not dispute this description of the difference between the two Directions.

36    The applicant submitted both Directions were legislative instruments. He submitted they create general rules of application to all individual instances of the exercise of the discretion in s 501. Focusing on Direction No. 55 (but of equal application to Direction No. 65) he submitted Direction No. 55 had the following features which combined to give it a legislative character:

1)    It determines the content of rules of general application;

2)    There is Parliamentary oversight through the tabling requirement in s 499(3) [of the Migration Act];

3)    It forms part of a national system for the regulation of the coming into, and presence in, Australia of non-citizens;

4)    It is informed by and imposes broad policy considerations;

5)    There is no provision for merits review of a s 499 direction – indeed, it is entirely unlike an administrative decision by which the executive applies the law;

6)    It is binding once given.

37    Further, the applicant contended that Direction No. 55 creates a new rule of conduct based on considerations that are not listed in s 501 and thus determines the content of the law, the “law” being for this purpose, the terms of s 501. The rule-like nature of the content of the Direction is, he submitted, apparent from authorities of this Court which have found that a failure properly to take into account the considerations set out in the Direction will result in a decision being unlawful: see Paerau v Minister for Immigration and Border Protection [2014] FCAFC 28; 219 FCR 504, Demillo v Minister for Immigration and Border Protection [2013] FCAFC 134; 139 ALD 29, Uelese v Minister for Immigration and Citizenship [2013] FCAFC 86; 60 AAR 534.

First Respondent’s submissions

38    The first respondent submitted Direction No. 55 was administrative in character. He contended that it did not determine the law or alter the content of the law. Instead, it set out guidelines with which decision makers were required to comply. Guidelines of this kind did not, he contended, impose limits on what matters must or must not be taken into account in respect of the exercise of the discretionary power in s 501 of the Migration Act. Nor did the Direction stipulate the weight to be given to respective matters in each and every case, and thus it did not fetter the broad discretionary power conferred by s 501.

39    The first respondent disputed that the applicant’s circumstances, and the application of the Direction, could be compared with Esber. Unlike the circumstances in Esber, the applicant had not accrued any “rights” under Direction No. 55. His right to merits review of the cancellation decision was found in the Migration Act and remained unaltered.

40    Argument on the application for judicial review was conducted substantially on the basis of the submissions we have just set out.

A further issue arises

41    In a footnote in the Minister’s written submissions, the Minister referred to s 46 of the Acts Interpretation Act, and submitted it was arguable that even if Direction No. 55 was not a legislative instrument it was nevertheless an instrument to which s 7(2)(c) applied, by reason of s 46.

42    In oral submissions, counsel for the Minister developed this argument as a more prominent contention. It was not a submission embraced by counsel for the applicant.

43    Nevertheless, as already indicated at [25] above, we have concluded this submission should be accepted. That conclusion means it is unnecessary to determine if Direction No. 55 is a legislative instrument, because instruments which were of either legislative or administrative character could be affected by s 7(2) of the Acts Interpretation Act. In the case of legislative instruments for the purposes of the Legislative Instruments Act (as it then stood), this was through a provision such as s 13 of that Act, read with s 7(2). In the case of other instruments, including those of an administrative character, this was through s 46 of the Acts Interpretation Act itself. The 2015 amendments have not altered that position, so far as the issues in this appeal are concerned.

44    We therefore turn to a closer examination of Ministerial Directions Nos. 55 and 65 and the question whether s 7(2)(c) operated to preserve the application of Direction No. 55 to the Tribunal’s review.

The two Ministerial Directions

45    On 25 July 2012, the Minister gave “Direction no. 55 - Visa refusal and cancellation under s501”. On 22 December 2014, the Minister gave “Direction no. 65 - Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA”. Both Directions were given pursuant to s 499 of the Migration Act.

46    Direction No. 65 commenced on 23 December 2014. Paragraph 3 of Direction No. 65 relevantly states that:

Direction no. 55, given under section 499 of the Migration Act 1958 (the Act) and dated 25 July 2012, is revoked with effect from the date this Direction commences.

47    The Directions each follow broadly the same format. They are divided into parts. Between the two Directions in issue, there are differences in the parts into which each Direction is divided, and how those parts are described. However, taking Direction No. 55 as an example:

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.

48    The Directions have their own interpretation provision. Clause 4 provides:

Where terms used in this Direction have a particular meaning, they are defined in Annex B.

49    However, all of the terms set out in Annex B are defined by reference to the Migration Act.

50    Neither Direction expressly states to whom it is directed. By s 499(1) of the Migration Act directions may be given to a person or body having functions or powers under the Migration Act. The long title of Direction No. 55 makes it plain it is to be applied by all persons who exercise the powers of visa cancellation and refusal under s 501 of the Migration Act.

51    Clause 6.1(3) in Direction No. 55 and cl 6.1(4) in Direction No. 65 identify the purpose of the Direction and are expressed in substantively the same terms. Clause 6.1(3) states:

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.

52    We now turn to some features of Direction No. 55, as the instrument said to be applicable to the Tribunal’s review, and the one upon which s 7(2)(c) is said to operate.

53    Under the heading “General Guidance”, cl 6.2(3) states:

The principles provide a framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizens visa [sic] 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.

54    Section 2 of Direction No. 55 is headed “Exercising the Discretion”. It contains clauses 7 and 8, which state:

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.

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.

55    The applicant is correct to identify, and to emphasise, the compulsory aspects of the Direction. First, there is a statutory obligation to apply it: see s 499(2A). Second, the terms of the Direction itself seek to impose on the decision makers to whom it is directed mandatory matters which they must take into account in making decisions about visa cancellation and refusal under s 501 of the Migration Act. Third, and flowing from the second feature, the Direction gives precise and detailed content to those considerations, including by interpretative provisions, but also by reference to judicial decisions, references to examples and by statements which involve a qualitative judgment that decision makers are then required to apply in the terms in which the qualitative judgment is expressed. Fourth, the Direction is expressly intended to affect the weight decision makers generally give to the factors with which it deals. This is achieved by the division of parts of the Direction into “primary” and “other considerations”, and an instruction that primary considerations are “generally” to be given more weight. There are also instructions about weight contained within various clauses of the Direction.

56    An example of a statement with a qualitative nature which decision makers must then apply in those terms is what appears in cl 9.2(1)(a)(i) and (ii), which provide:

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.

57    Notwithstanding these features, as the Minister submitted, the terms of Direction No. 55 do not purport to direct a decision maker as to the outcome of the s 501(2) residual discretion in relation to any given individual, or categories of individuals. Further, by the use of qualifying words such as “generally” (for example, in cl 8(4) that primary considerations “should generally be given greater weight than the other considerations”), the weighing process in each case is in substance left, as it must be, to the individual decision maker exercising the power under s 501.

Characterisation as legislative or administrative

58    The choice between characterisation of a power as legislative or administrative power has been described as “difficult in theory and impossible in practice”: see RG Capital Radio Ltd v Australian Broadcasting Authority [2001] FCA 855; 113 FCR 185 at [40], citing the Report of the Committee on Ministers’ Powers (“the Donoughmore Committee”) (HMSO Cmd 4060) at 19. There is now a considerable body of authority providing guidance on how that choice should be made: see Commonwealth v Grunseit (1943) 67 CLR 58; Minister for Industry and Commerce v Tooheys Ltd (1982) 60 FLR 325; RG Capital Radio Ltd v Australian Broadcasting Authority; Queensland Medical Laboratory v Blewett (1988) 84 ALR 615; Vietnam Veterans’ Affairs Association of Australia New South Wales Branch Inc v Cohen (1996) 70 FCR 419; Currareva Partnership v Welford [2000] QSC 98; 5 QAR 211; Visa International Service Association v Reserve Bank of Australia [2003] FCA 977; 131 FCR 300; Roche Products Pty Ltd v National Drugs and Poisons Schedule Committee [2007] FCA 1352; 163 FCR 451; Anderson v Minister for Environment, Heritage and the Arts [2010] FCA 57; 182 FCR 462; Applied Medical Australia Pty Ltd v Minister for Health [2016] FCA 35. Those authorities can be put to one side in the present proceeding. For the reasons we have outlined, whether administrative or legislative in character, Direction No. 55 was affected by the terms of s 7(2)(c) of the Acts Interpretation Act, either through s 13 of the Legislative Instruments Act (if it was legislative in character) or through s 46 of the Acts Interpretation Act (if it was administrative).

59    As already indicated, the critical issue for the outcome of this judicial review application is whether the revocation of Direction No. 55 affects “any right, privilege, obligation or liability acquired, accrued or incurred under” the Direction, for the purposes of s 7(2)(c) of the Acts Interpretation Act.

Did the applicant accrue a right under Direction No. 55?

60    The applicant variously put the description of the “right” he had accrued under Direction No. 55, but ultimately submitted it was a right to “de novo review of the exercise of the [s 501] discretion in accordance with Direction No. 55”.

61    The first difficulty with a formulation such as this is that, contrary to the requirements of s 7(2)(c), the source of the right articulated by the applicant is not the Direction (as the instrument which has been revoked). The applicant’s right to have the s 501 residual discretion exercised by the Tribunal arises under ss 25 and 43 of the Administrative Appeals Tribunal Act, read with s 500 of the Migration Act. Second, a right of the kind asserted is contrary to the terms of s 499(2A) which require that a person or body to whom the direction is given complies, at the time it comes to make a relevant decision, with Direction No. 65. Clauses 2 and 3 of Direction No. 65 make this quite clear. Third, as we explain below, the content of Direction No. 65 does not determine how the s 501 discretion will be exercised in any given case.

62    The purpose of s 7(2) of the Acts Interpretation Act is to avoid construing repeals, revocations or amendments as having a retrospective effect on substantive rights or interests. By s 46, that purpose was extended to administrative instruments, provided they had the requisite effect for which, relevantly, s 7(2)(c) provided.

63    The underlying purpose of statutory provisions such as s 7(2)(c) was explained by Dixon J in Kraljevich v Lake View and Star Ltd (1945) 70 CLR 647 at 652 in discussing the analogous general common law rule:

The presumptive rule of construction is against reading a statute in such a way as to change accrued rights the title to which consists in transactions passed and closed or in facts or events that have already occurred. In other words, liabilities that are fixed, or rights that have been obtained, by the operation of the law upon facts or events for, or perhaps it should be said against, which the existing law provided are not to be disturbed by a general law governing future rights and liabilities unless the law so intends …

64    There may frequently be difficulties in finding that an administrative instrument has the effect of vesting a right, or giving effect to a transaction already completed, in a way which leads to the application of the preservatory effect of s 7(2)(c). This difficulty in application does not deny that, at the relevant time and subject to its terms, s 46 could apply to an instrument of an administrative character.

65    Generally, changes which are properly characterised as changes of process, practice or procedure will not attract the operation of the common law presumption against retrospectivity because they do not involve “rights and liabilities fixed by reference to past facts, matters or events”: see Maxwell v Murphy (1957) 96 CLR 261 at 267-268. Similarly, changes of this kind do not attract the operation of s 7(2)(c).

66    Matters described as of “practice and procedure” are not necessarily of insignificant consequence for the person affected. Rodway v The Queen (1990) 169 CLR 515 is an example. In Rodway, an accused entered a plea on the basis of a provision in the Criminal Code (Tas) (s 136), which precluded conviction on the evidence of a victim without corroboration, but by the time of trial that provision had been repealed. The High Court held that the Tasmanian legislative equivalent of s 7(2) did not apply, because it affected only the way in which charges were to be decided by a jury, and the accused had no vested “right” to trial under the former provision.

67    In contrast, instruments such as Statements of Principles issued under the Veterans’ Entitlements Act 1986 (Cth) have been held to attract the operation of provisions such as s 7(2) or in the same or relevantly similar terms. In Repatriation Commission v Keeley [2000] FCA 532; 98 FCR 108, Kiefel J held (at [76]) that Statements of Principles:

operate generally as a bar or threshhold test. The bar or limitation operates on the right to a pension itself because the Statements of Principles determine the connection between death and service as a minimum, in each case.

68    Kiefel J went on to explain (at [77]) the effect that the change in the Statement of Principles had on Mrs Keeley’s claim for a pension in relation to her husband’s death:

From the time the first SoP came into effect, Mrs Keeley's right to a pension was defined specifically by the requirement that the circumstances of her husband's service involved his exposure in the course of his work to paints and/or lacquers before the clinical onset of multiple myeloma, and then more generally by the requirement that the condition be attributed to his service. Whilst she was required to prove or vindicate that right, it was one which was then held by her. The second SoP required more - that work as a painter had been undertaken for a minimum period or periods and that the condition onset within a certain time from cessation of exposure through that work. Any increase in the bar to the remedy could not in my view be regarded as procedural. It affected a substantive right: see Pedersen v Young [(1964) 110 CLR 162] at 169. The comparison is as between a provision limiting access to the courts for enforcement of a claim and one which destroys or impairs the basis upon which a remedy will be given (and see McKain v R W Miller & Co (SA) Pty Ltd (1991) 174 CLR 1 at 41). (our emphasis)

69    In Repatriation Commission v Keeley, Lee and Cooper JJ formed a similar view. Speaking of the effects of the provisions in the Veterans’ Entitlements Act, and the role of Statements of Principles their Honours said at [42]:

The provisions do more than clarify the meaning of terms used in s 120(3) and how they are to be applied. They purport to restrict the operation of s 120(3) to the terms of the Statement determined under s 196B and in doing so substantively reform the nature of the right that is to be determined under the Act by application of the provisions of s 120. The right that accrued to the respondent upon lodgment of a claim, to have the claim determined under the Act by the Commission, was “affected” accordingly.

70    Similarly in Esber itself the repeal of statutory provisions changed an entitlement, rather than a process to secure an entitlement. In Esber the Compensation (Commonwealth Government Employees) Act 1971 (Cth) gave Mr Esber the ability to apply to redeem his weekly workers’ compensation payments of in excess of $50 as a lump sum. He made such an application which was refused and he sought merits review, having been granted the requisite extension of time in which to do so. While his review was pending, the Commonwealth Parliament passed the Commonwealth Employees’ Rehabilitation and Compensation Act 1988 (Cth). By that Act, weekly payments over $50 were not redeemable as a lump sum. The majority in the High Court held that the 1971 Act had given Mr Esber a “right” in the following sense (at 440):

…he had a right to have his claim to redemption determined in his favour if the delegate had wrongly refused his claim. To borrow a sentence from the judgment of Hope J.A. in N.S.W Aboriginal Land Council v. The Minister [The Winbar Claim] [(1988) 14 NSWLR 685 at 694]:

“The right might be said to be a conditional one, namely, conditional upon the relevant facts being established, but the right was nonetheless a right because it was conditional.”

Once the appellant lodged an application to the Tribunal to review the delegate's decision, he had a right to have the decision of the delegate reconsidered and determined by the Tribunal. It was not merely “a power to take advantage of an enactment”. Nor was it a mere matter of procedure; it was a substantive right.

[Citations mostly omitted.]

71    Of course, even before the changes to the federal legislation, the Administrative Appeals Tribunal had to conclude that the delegate was wrong before anything would flow to Mr Esber. The difference is illustrated by this extract from the dissenting judgment of Brennan J in Esber at 449:

The distinction between a judicial proceeding to enforce an accrued right and an administrative proceeding to determine whether a right should be granted is critical in this case. Clearly the appellant had no accrued right on 1 December 1988 to a redemption payment; the very purpose of the review by the [Tribunal] which the appellant applied for was to obtain a right to a redemption payment.

72    That is why the majority’s reasons in Esber refer to the right as a “conditional” one. In the present case, even if it might be said that the applicant is in the same position as Mr Esber in needing to succeed in his review in order to take advantage of the “right”, unlike Esber there is no underlying change in a vested, or certain, position. Mr Esber had an entitlement, if the Tribunal was satisfied he was entitled to it, to redeem his weekly payments for a lump sum. That was given to him, or accrued to him, by reason of the then terms of the Compensation (Commonwealth Government Employees) Act 1971 (Cth). The redemption right was removed by the repealing provision, in the 1988 Act.

73    In the current proceeding, the applicant had, if the Tribunal was so satisfied, an entitlement to have the residual discretion in s 501(2) exercised in his favour. However, he had that right under both Directions. It was not Direction No. 55 which gave him that right: that right arose by reason of the combination of s 501 and s 500 of the Migration Act and ss 25 and 43 of the Administrative Appeals Tribunal Act. Nothing changed in that respect for the applicant with the revocation of Direction No. 55. It was open to him to secure the same outcome from the review, regardless of the fact that Direction No. 65 had replaced Direction No. 55.

74    In Lee v Secretary, Department of Social Security (1996) 68 FCR 491, the applicant had sought review in the Tribunal in relation to her obligation to repay social security debts accumulated as a failure to notify of changes in her circumstances. Before the review was completed, the applicable terms of the social security legislation concerning the ability of the Secretary (and therefore the Tribunal) to waive such debts changed. The new provisions gave no residual discretion to the Secretary to exercise the power of waiver in other than the circumstances set out in the new section. The previous waiver discretion was unconfined. Moore J held (at 516) that Ms Lee’s right of review in the Tribunal was a conditional right of the same kind as the majority in Esber had identified – that is, provided she could succeed on persuading the Tribunal about what was the correct or preferable decision, she was entitled to have the waiver discretion exercised in its original form – that is, in a manner unconfined by the statutory amendments. Cooper J took a similar approach, and (at 506) he said:

… where the previous law has operated on past facts and resulted in a decision under the repealed s 1237, the new sections do not as a matter of construction or statutory purpose operate to displace whatever rights have accrued in consequence of a decision of the Secretary made before 24 December 1993.

75    Davies J dissented, and his approach can be seen in the following passage (at 499):

In the present case, having regard to the function which the Administrative Appeals Tribunal performs, to the fact that Ms Lee’s claim was at most a claim to have a debt waived, which was a claim for the favourable exercise of an unstructured discretion, and to the fact that the application had not been lodged with the Administrative Appeals Tribunal when the amending legislation commenced, I am satisfied that Ms Lee had no accrued right which entitled her to rely upon the law as it stood before the amendment.

76    The different approaches between Davies J on the one hand and Cooper and Moore JJ on the other illustrate how much the answers to questions about the application of provisions such as s 7(2) of the Acts Interpretation Act depend on judicial analysis of the “right” accrued. Davies J, in dissent in Lee, analyzed the right at a broader level – being, the right to merits review of an exercise of a discretion. Cooper and Moore JJ analyzed the “right” at a great level of specificity – namely the right to have the waiver power exercised on merits review on the same basis as the primary decision.

77    Lee is the case which provides the greatest support to the applicant’s contentions but in our opinion it remains materially different. In Lee, the underlying basis for the exercise of the statutory discretion was altered by statutory amendment so that on merits review the Tribunal was exercising a more narrowly confined discretion. The statutory power itself had changed.

78    In the present case, the discretionary power in s 501 has remained the same. The contents of Direction No. 65, like the contents of Direction No. 55, must inform the matters the Tribunal examines. Both Directions set out prescriptively the content of many of those matters. By doing so, a question may arise regarding the relationship between the Directions and s 501, including the extent to which a Direction may validly modify the scope of a power or function provided for by the Act: Williams v Minister for Immigration and Border Protection [2014] FCA 674; 226 FCR 112 at [36]-[43]. However, no submission was advanced in this proceeding regarding the validity of either Direction and the prescriptiveness just identified is a common feature of both Directions, rather than a difference between them. Ultimately, in the application of both Directions, each decision maker must return to the probative material and evidence in an individual case: it is not the content of the Direction which determines the outcome of the exercise of the s 501 discretion, but rather its application by a particular decision maker to the evidence and material in an individual case.

79    Implicit in the way the applicant articulated the “right” was the proposition that Direction No. 55 was in its content more favourable to the applicant than Direction No. 65, with the consequence that the revocation of Direction No. 55 and its replacement by Direction No. 65 had an adverse effect on his interests. As already stated, however, we do not accept the submission that the revocation of Direction No. 55, and its replacement with Direction No. 65 caused any diminution in the content of the applicant’s rights of review in the Tribunal. There being no amendment to ss 500 or 501 of the Migration Act, those rights were preserved and protected by the Administrative Appeals Tribunal Act itself, making provision for the Tribunal’s review function. Despite the transformation of cl 9.2 (dealing with “Strength, duration and nature of the person’s ties to Australia”) from a primary consideration in Direction No. 55 to become cl 10.2 and merely an “other consideration” in Direction No. 65, with the concomitant loss of the benefit of cl 8(4) concerning the “generally” increased weight to be given to primary considerations, in our opinion that change did not necessarily make Direction No. 65 “less beneficial” in a relevant way. Although Direction No. 65 (like Direction No. 55) is prescriptive, and detailed in its prescriptions, the current Direction, like its predecessor, is intended to be applied to each set of individual facts and circumstances presented to the decision maker. The ultimate decision must therefore reflect the claims of, and evidence and information about, an individual. No matter where the factor “Strength, duration and nature of the person’s ties to Australia” is located in the Direction, the evidence about a particular individual (and the claims made) may mean that this consideration is afforded the most weight of any factor. All these are evaluative assessments for the decision maker, which the Direction cannot determine.

CONCLUSION

80    The applicant has failed to identify any right, as understood in the light of the authorities, which he had under Direction No. 55 and which he lost by its revocation. Accordingly, in the circumstances of this case, there is in our opinion nothing to which the preservatory effect of s 7(2)(c) of the Acts Interpretation Act could attach.

81    That being the case, irrespective of whether Direction No. 55 is of an administrative or legislative character, the applicant’s judicial review ground fails on this critical issue.

82    The Tribunal’s decision in affirming the decision under review by, amongst other things, applying the terms of Direction No. 65, is not affected by any jurisdictional error. The Tribunal, in accordance with its function, properly complied with Direction No. 65.

83    For these reasons, the application must be dismissed, with costs, there being no basis shown for anything but the usual order as to costs.

Associate:

Dated:    15 April 2016