Federal Court of Australia

DBWG v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCAFC 3

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellant pay the costs of the first respondent.

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

REASONS FOR JUDGMENT

THE COURT:

1    The appellant is a 45-year-old man from Russia whose visa was cancelled on the ground that he had a substantial criminal record. He appeals a decision of a judge of this Court who dismissed his application for judicial review of a decision of the Administrative Appeals Tribunal that had affirmed a decision of a delegate of the Minister who had declined to revoke the cancellation of his visa.

2    The appellant does not allege that there was any error in the primary judge’s consideration of the claims that were argued at first instance. Rather, by an amended notice of appeal the appellant raises two fresh grounds of jurisdictional error by the Tribunal before this Court, in respect of which he requires leave. The Court heard full argument from the parties, and reserved on the question whether leave should be given to the appellant to argue the new grounds.

3    For the reasons that follow, we give leave to the appellant to argue the new grounds, but the appeal will be dismissed.

Background

4    The appellant arrived in Australia on 12 February 2004 on a false Spanish passport. Subsequently, on 28 August 2006 the appellant was issued a temporary visa and then later, on 29 November 2009, a Class CD Subclass 851 Resolution of Status Visa.

5    On 11 March 2004, the appellant applied for a Protection (Class XA) visa. A delegate of the Minister refused the application, which was affirmed on review by the Refugee Review Tribunal on 7 June 2005. However, following a challenge to that decision, the matter was remitted for reconsideration.

6    On 28 August 2006, the appellant was granted a temporary protection visa. The appellant’s temporary protection visa ceased when, on 29 November 2009, he was granted a Resolution of Status visa.

7    Commencing in 2008 the appellant accumulated a significant criminal record involving the following offences –

(1)    22 February 2008 – assault occasioning actual bodily harm – sentenced to a s 9 bond under the Crimes (Sentencing Procedures) Act 2005 (ACT);

(2)    22 February 2008 – contravene prohibition/restriction order – community service order for 50 hours;

(3)    22 February 2008 – contravene prohibition/restriction order – fined $300;

(4)    22 February 2008 – assault officer in execution of duty – fined $200;

(5)    10 September 2013 – possess unregistered firearm in public place – community service order for 500 hours (later called up for breach of the community service order with a resentence on 14 May 2014 of 6 months’ imprisonment);

(6)    4 March 2014 – common assault – 8 months imprisonment (with a non-parole period of 6 months);

(7)    14 May 2014 – common assault – 9 months’ imprisonment (with a non-parole period of 6 months);

(8)    14 May 2014 – resist in officer execution of duty – 6 months’ imprisonment;

(9)    17 February 2016 – destroy or damage property – s 9 bond (6 months);

(10)    7 March 2016 – behave in offensive manner in/near public place/school – fined $700;

(11)    27 June 2018 – destroy or damage property and have custody of an offensive implement in a public place – section 10A conviction (with no other penalty) for both offences;

(12)    27 June 2018 – assault with act of indecency & assault police officer in execution of duties – 3 months’ imprisonment for each offence (served concurrently); and

(13)    23 August 2019 – reckless wounding – 3 years’ imprisonment (with a non-parole period of 1 year and 7 months).

8    The appellant was the subject of an International Treaties Obligations Assessment dated 17 August 2016. That assessment concluded that there were no longer international non-refoulement obligations that applied to the appellant due to changed circumstances in Russia. The Tribunal accepted this assessment.

9    On 29 August 2019, the appellant’s visa was cancelled under s 501(3A) of the Migration Act 1958 (Cth) on the grounds that he did not pass the character test 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) of the Act, and that he was then serving a sentence of imprisonment on a full-time basis. The cancellation of the appellant’s visa on these grounds was mandatory.

10    The appellant then made representations to the Minister pursuant to s 501CA(4) of the Act that the cancellation of his visa should be revoked. On 3 September 2020, a delegate of the Minister decided not to revoke the cancellation of the appellant’s visa.

11    The appellant sought merits review of the delegate’s decision by the Administrative Appeals Tribunal pursuant to the Tribunal’s review jurisdiction under s 500(1)(ba) of the Migration Act. On 27 November 2020, the Tribunal affirmed the delegate’s decision, finding that the preferable decision was not to revoke the cancellation of the appellant’s visa.

12    The appellant then sought judicial review of the decision of the Tribunal on the ground that it was affected by jurisdictional error. Two grounds of review were advanced on the appellant’s behalf before the primary judge. The grounds were rejected and the proceeding was dismissed. Because the grounds of jurisdictional error that were advanced before the primary judge are not pursued on appeal, it is unnecessary to refer to her Honour’s reasons for rejecting them.

The Tribunal’s decision

13    The Tribunal’s reasons for affirming the delegate’s decision not to revoke the cancellation of the appellant’s visa are published: DBWG and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 4800. We will address specific aspects of the Tribunal’s reasons to the extent necessary for the consideration of the appellant’s submissions on this appeal.

Direction No 79

14    In the course of its reasons, the Tribunal referred to Direction No 79, being a direction made by the Minister pursuant to s 499(1) of the Migration Act. Part C of Direction No 79 identified considerations relevant to determining whether pursuant to s 501CA of the Act the mandatory cancellation of a visa on character grounds should be revoked. Direction No 79 commenced on 28 February 2019, and took the place of Direction No 65, which had been the subject of consideration by the Court in several decisions, including FYBR v Minister for Home Affairs [2019] FCAFC 185; 272 FCR 454 (FYBR) to which we will return. In turn, Direction No 79 was replaced by Direction No 90 from 15 April 2021, which itself was replaced by Direction No 99, which commenced on 3 March 2023.

15    There were two primary considerations which the Tribunal decided weighed against the revocation of the cancellation of the appellant’s visa. The first was that the Tribunal concluded that there was a high probability that the appellant would reoffend, and that there was a moderate risk of further harm of a similar nature from criminal activity of the appellant. The Tribunal decided that this risk was unacceptable. The second primary consideration was that the Tribunal decided that the expectations of the Australian community weighed heavily against revoking the cancellation of the appellant’s visa.

16    Paragraph 6.1 of Direction No 79 stated its objectives, which included to guide decision-makers exercising powers in relation to the revocation of the mandatory cancellation of a visa under s 501CA(4) of the Migration Act –

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.

...

(4)    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 or to cancel a visa of a non-citizen who does not satisfy the decision-maker that the non-citizen passes the character test, or to revoke a mandatory cancellation under section 501CA of the Act. Under section 499(2A) of the Act, such decision-makers must comply with a direction made under section 499.

17    Paragraph 6.2 of Direction No 79 was headed “General Guidance”, and relevantly provided –

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.

...

(3)    The principles provide a framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen’s visa under section 501, or whether to revoke a mandatory cancellation under section 501CA. ...

18    Paragraph 6.3 of Direction No 79 was headed “Principles”, and provided –

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)    The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.

(3)    A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

(4)    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.

(5)    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)    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.

(7)    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.

19    Paragraph 7 of Direction No 79 required a decision-maker to take account of the considerations, relevantly in Part C, informed by the principles in para 6.3 –

7.    How to exercise the discretion

(1)    Informed by the principles in paragraph 6.3 above, a decision-maker:

...

b)    must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.

20    The primary considerations that the Tribunal was required to take into account in Part C of Direction No 79 included those in para 13.3, which provided –

13.3    Expectations of the Australian community

(1)    The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government’s views in this respect.

(Emphasis added.)

21    The Tribunal had regard to para 13.3 and also the principles set out in para 6.3 of Direction No 79 in deciding that the expectations of the Australian community weighed heavily against revoking the cancellation of the appellant’s visa.

The grounds of appeal

22    Two grounds of appeal are raised by the amended notice of appeal, which we have renumbered for convenience of reference –

1.    The Tribunal erred as a result of placing heavy weight on the “expectations of the Australian community” when such a consideration could not reasonably – and thus, lawfully – offer direction or guidance regarding the functions or power to be exercised under section 501CA, as required per section 499 of the Act.

Particulars

i.    There is no way of establishing what the expectations of the Australian community are as a matter of fact.

ii.    A statement of the “expectations of the Australian community” by the Government or Minister amounts to no more than a statement of a subjective value judgment.

iii.    The Direction does not provide any clear statement of the “expectations of the Australian community” regarding the revocation of a decision to cancel a visa. Clause 13.3 of Direction 79 only refers to what the community expects “may” be appropriate.

iv.    It is impossible for a decision-maker to reasonably have “due regard to” this “expectations of the Australian community” consideration so formulated. It is impossible for a decision maker to reasonably place any additional or lesser weight on this consideration when exercising powers or functions under section 501CA, including when determining whether a person passes the character test or whether there is another reason why a decision to cancel a visa should be revoked.

v.    As such, it falls afoul of section 499.

2.    The Tribunal erred: (a) in its understanding and application of the “expectations of the Australian community” consideration, and or (b) by failing to give active intellectual consideration to the applicant’s representations about his specific circumstances in the context of the weight to be given to these “expectations”.

Particulars

i.    Purporting to rely on Direction 79, the Tribunal erroneously formulated its own incorrect statement of the “expectations of the Australian community” at [76]: “I am satisfied that the Australian community expects that a non-citizen “will obey Australian laws” while living in Australia and will generally “forfeit the privilege of staying” in Australia if they frequently commit serious crimes of a violent nature.”

ii.    In determining the weight to be attributed to this consideration, the Tribunal erroneously only referenced [at 77]: “the extent, frequency and nature of the Applicant’s offending”. It failed to engage with the particular circumstances of the applicant in this ultimate evaluative task, including countervailing and highly relevant submissions and materials such as: the applicant’s residence in Australia for 17 years, that his offending occurred largely in the context of alcoholism and mental health problems, and that he had undertaken significant rehabilitation to address alcohol dependency.

Leave to raise new grounds on appeal

23    It is the practice of this Court to require that leave be sought and obtained to argue on appeal a point not raised below. The reasons for this practice are well-known. Any orders made on appeal are concerned principally with the correction of error. In this case, the appellant was represented at the hearing before the primary judge by senior and junior counsel, who were instructed by solicitors. Any substantial issues that the appellant sought to raise so as to allege jurisdictional error should have been raised below: see, Coulton v Holcombe [1986] HCA 33; 162 CLR 1 at 7. A further consequence of raising points for the first time on appeal to the Full Court is that there is no right of appeal available to any party: the only recourse would be an application for special leave to appeal to the High Court of Australia.

24    Having said this, the approach of the Court is not inflexible. The touchstone is whether the granting of leave to raise a new point “is expedient in the interests of justice”: O’Brien v Komesaroff [1982] HCA 33; 150 CLR 310 at 319 (Mason J), cited in VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; 238 FCR 588 at [46] (Kiefel, Weinberg and Stone JJ). There are no firm rules governing when the Court should grant leave to raise a fresh point on appeal, because the interests of justice is a broad consideration which will have different dimensions depending upon the circumstances of each case. In assessing individual cases, the Court commonly looks at the question whether there was any explanation for the point not being raised at first instance, whether there is prejudice to any party, and whether there is any merit in the new point, while at all times having regard to the administration of justice generally: see the summary of the principles in Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 125; 285 FCR 187 at [110]-[112] (O’Bryan J, Katzmann J at [1] agreeing). There will be cases where, whatever the inadequacy of the explanation for not raising the point below, the interests of justice require that an administrative decision that is plainly affected by jurisdictional error should not remain standing.

25    This appeal has all the hallmarks of a party using the appellate process to have a second bite at the cherry. However, the Minister did not claim that there was any prejudice that would be suffered if the appellant were given leave to raise the fresh grounds of review for the first time on appeal. Indeed the Minister did not oppose the Court giving leave to the appellant to advance new grounds. These considerations, when coupled with the fact that we heard full argument and with the serious consequences for the appellant on the supposition that the Tribunal’s decision was affected by jurisdictional error, lead us to give leave to the applicant to argue the new grounds.

Ground one

Ground one – the submissions of the appellant

26    The appellant’s submissions in support of ground one were complicated. The appellant submitted that the primary consideration of the “expectations of the Australian community”, as stated in Ministerial Direction 79, was a consideration which could not “reasonably or rationally be relied upon”. This was said to flow from the judicial interpretation given to that consideration, stemming from the decision of the Full Court in FYBR, upon which the appellant relied. The appellant submitted that the two judges comprising the majority in FYBR, Charlesworth J and Stewart J, had in separate judgments held that it is wrong to think that there is “a homogenous view” held by the Australian community as to what the outcome should be in any particular case regarding a decision relating to cancellation, or revocation of cancellation, of a visa. At [66] of FYBR, Charlesworth J stated –

[T]here does not exist in fact an Australian community holding a homogenous view as to the preferred outcome in any one particular case.

27    At [87], Stewart J stated –

[T]here are no homogenous, or even significantly homogenous, or even predominantly held, Australian “community expectations” with regard to applicable norms for the refusal or cancellation of visas on character grounds, nor with regard to the outcome in any particular case where the refusal or cancellation of a visa is up for consideration. … There are very different and strongly held views, and hence expectations, and there is no ready mechanism by which such expectations can be ascertained or measured.

28    The appellant next submitted that the relevant community expectations were to be found exclusively by reference to para 13.3 of Ministerial Direction 79, which we set out at [20] above. The appellant submitted that the reference to community expectations in para 6.3(2) was irrelevant to the consideration of the particular primary consideration of community expectations, albeit that the principles expressed in para 6.3 would generally be relevant “in the ultimate exercise” of discretion by the decision-maker. In other words, it was submitted that para 6.3 would be relevant when weighing the considerations against one another in the final balancing exercise.

29    In terms of the content of the “community expectations” in para 13.3, the appellant submitted that this was determined by “the Minister’s (or government’s) conception of these expectations, which is reflective of a political judgment by the Minister rather than a finding for which evidence is needed”. In light of the submission that there are no actual homogenous “Australian community expectations” in respect of any particular case, the appellant submitted that it was “evidentially baseless” for the Minister or any other relevant member of executive government to make any statement of community expectations. Accordingly, the appellant submitted, no relevant decision-maker could rationally apply para 13.3 because of a lack of objective content to that provision. Such lack of objective content was said to be compounded by two usages of the word “may” in para 13.3, as emphasised in the extract at [20], above. The appellant submitted that the word “may”, “does not speak to probability, likelihood, or even the desirability of a particular outcome”, whereas language like “should” or “must” would be more useful in guiding the task of the decision-maker.

30    In sum, the appellant submitted that the combination of the “factually baseless” nature of the community expectations and the use of permissive as opposed to mandative or probabilistic language amounted to insufficient direction or guidance to the decision-maker as to how to take account of the consideration of the “expectations of the Australian community”. Accordingly, the appellant submitted that para 13.3 “is simply not capable of being considered and applied such that it could reasonably or rationally – and thus, lawfully – contribute to the task of a decision-maker exercising functions or powers under section 501CA”. In consequence, the appellant submitted that para 13.3 was not authorised by the empowering provision, s 499 of the Migration Act, which relevantly 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.

...

Ground one – consideration

31    The appellant’s submission that there is no actual homogenous view as to the “expectations of the Australian community” is uncontroversial. So much is established by the judgments of Charlesworth J at [66] and of Stewart J at [87] in FYBR. Nothing turns on the fact that FYBR was concerned with the consideration of para 11.3 of Direction No 65 as opposed to para 13.3 of Direction No 79. This is because those two paragraphs are identical except for the fact that the subject of para 11.3 of Direction No 65 is a decision as to the refusal of a visa in the first place whereas the subject of para 13.3 of Direction No 79 is a decision as to revocation of the cancellation of a visa. Nor is it controversial that the ascertainment of the relevant community expectations, for the purposes of para 13.3, does not involve reliance on any sort of evidence of the community’s views. Further, the appellant’s submission that FYBR dictates that the content of the community expectations in para 13.3 is therefore determined by “the Minister’s (or government’s) conception of these expectations … rather than a finding for which evidence is needed” is not controversial. To put this another way, it is not for the relevant decision-maker to determine the content of the expectations of the Australian community for the purposes of para 13.3. Rather, para 13.3 itself provides the content of those expectations. To this effect, in FYBR at [67], Charlesworth J stated –

To the extent that cl 11.3 contains a statement of the expectations of the Australian community, the clause is “deeming”, in the sense explained by Mortimer J in the limited passage from YNQY upon which the Tribunal relied at [54] of its reasons (extracted at [20] above). It is not for the decision-maker to make his or her own assessment of the community expectations and to give that assessment weight as a “primary consideration”. I do not understand the judgment of Griffiths J in DKXY to differ from that of Mortimer J in YNQY in that respect. For my part, I prefer to describe the clause as imputing or ascribing to the whole of the Australian community an expectation that wholly aligns with the expectation of the executive government of the day in respect of its subject matter.

(Emphasis added.)

32    Her Honour continued at [75] –

Having regard to all that is said above, cl 11.3 should be understood as expressing a deemed community expectation that all persons who have committed serious criminal offences giving rise to character concerns should have their visa applications refused. The nature of the character test is such that the deemed expectation will arise in most if not all cases falling for consideration under s 501(1) of the Act, having regard to the nature and seriousness of the non-citizen’s conduct, assessed in accordance with cl 11.1. The text of the clause emphasises that it may be appropriate to act in accordance with that expectation, so anticipating a class of cases in which it may not be appropriate to do so.

(Emphasis added.)

33    To similar effect, Stewart J stated at [89] –

It is therefore to be expected that the Government of the day may wish to set the norms by which decisions to refuse or cancel visas are made. Where those norms are expressed, at least in part, as reflecting “community expectations” then, in that sense, they might accurately be understood as “deeming” what the community expectations are. That is because, as indicated, as a matter of practical reality there is no one or even necessarily dominant set of community expectations in this field.

(Emphasis added.)

34    We also refer to [76] of Mortimer J’s reasons in YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 (YNQY), which related to the construction of para 13.3 of Direction No 65 (which is identical to that in Direction No 79), and which was referred to by Charlesworth J at [67] of FYBR –

In substance this consideration is adverse to any applicant. As the Minister submits, it is inextricably linked to the other primary consideration of protection of the Australian community. In particular, the last two sentences of para 13.3 of the Direction suggest the “expectations” about which it speaks are expectations adverse to the position of any applicant who has failed the character test and been convicted of serious crimes. In this primary consideration as expressed (and despite the references earlier in the Direction to “tolerance”) the Australian community’s “expectations” are defined only in one particular way: namely, that the Australian community “expects” non-revocation where a person has been convicted of serious crimes of a certain nature. That is, this is not a consideration dealing with any objective, or ascertainable expectations of the Australian community. It is a kind of deeming provision by the Minister about how he or she, and the executive government of which he or she is member, wish to articulate community expectations, whether or not there is any objective basis for that belief. That is the structure of this part of the Direction.

(Emphasis added.)

35    Recently, in Minister for Immigration, Citizenship and Multicultural Affairs v HSRN [2023] FCAFC 68; 297 FCR 662 (HSRN) the Full Court at [24] affirmed that the content of community expectations does not involve the decision-maker’s own assessment of those expectations. Whilst HSRN involved the construction of para 8.4 of Direction No 90, which lays down the primary consideration of the “Expectations of the Australian Community” in a much-reformed and more detailed form than the paragraphs considered in YNQY and FYBR, nothing in [24] of HSRN casts doubt on the underlying logic of the decisions in YNQY and FYBR in terms of the determination of the content of the community expectations.

36    We do not accept the appellant’s submissions that the content of the expectations of the Australian community that are the subject of para 13.3 are factually baseless, or that the use of the word “may” on two occasions in the balance of para 13.3 render that part of the Direction incapable of rational application. Paragraph 7(1)(b) of Direction No 79 requires a decision-maker to take account of the considerations in Part C of the Direction, which include para 13.3, informed by the principles referred to in para 6.3. The general guidance in para 6.2 provides that the principles in para 6.3 are of “critical importance” in furthering the Government’s commitment to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens.

37    Paragraph 13.3 of Direction No 79 expresses the expectations of the Australian community in plain, rational terms in its first sentence, being that “The Australian community expects non-citizens to obey laws while in Australia”. That simple statement is followed by statements that are explanatory of, and give guidance as to how that expectation might then be applied, which must be in accordance with the principles in para 6.3. Those principles do not dictate an outcome, but lay down some normative expectations that are to inform the considerations which the decision-maker must take into account. The two instances of the word “may” in para 13.3 are consistent with the Direction not fettering the decision-maker’s decision in an impermissible way, but allowing for some freedom of choice after having considered the matters that the Direction requires: cf, Williams v Minister for Immigration and Border Protection [2014] FCA 674; 226 FCR 112 at [42] (Mortimer J). Paragraph 13.3 then concludes by directing decision-makers to have regard to the Government’s views, which are those set out in the Direction, thus making clear that the Direction is concerned with the Government’s view about the expectations of the Australian community as set out in the Direction, and not some homogenous view which cannot be ascertained.

38    This understanding of para 13.3, read in the context of the objects, the guidance, and the principles set out in Direction No 79 to which we have referred, is dispositive of the appellant’s arguments in support of ground one. Further, YNQY, FYBR, and HSRN have all been decided on the premise that the content of community expectations, as derived from the applicable Ministerial Directions, can be applied rationally. So much was accepted by counsel for the appellant at the hearing of the appeal (T4.28-37). Rather than being incapable of rational application as counsel for the appellant submitted, we regard the inter-relationship between the guidance in para 6.2, the principles in para 6.3 which are there to inform, and the considerations in para 13.3 as being coherent.

39    For the above reasons, we reject ground one.

Ground two

Ground two – appellant’s submissions

40    There were two limbs to the appellant’s arguments that were advanced in support of ground two. As with ground one, these arguments were complicated. They were advanced on the assumption that, as we have held, para 13.3 of Direction No 79 is not invalid on the basis that was advanced on behalf of the appellant.

41    The first limb of the appellant’s arguments in support of ground two was that the Tribunal had erred in its understanding and application of the “expectations of the Australian community” consideration. The error was alleged to flow from [76] of the Tribunal’s reasons. We set out below [75] to [77] of the Tribunal’s reasons, because they should be read together –

75    In FYBR v Minister for Home Affairs [2019] FCAFC 185 the Full Federal Court decided by majority that it is not for the decision-maker to assess what the expectations of the Australian community are for the purposes of applying this consideration. Rather, the expectations of the community that decision makers are required to consider are those set out at paragraph 11.3 of Direction 65, the direction considered in that case which is analogous to sub-paragraph 13.3(1) of the Direction.

76    Having regard to sub-paragraph 13.3(1) and the principles set out in paragraph 6.3 of the Direction, I am satisfied that the Australian community expects that a non-citizen “will obey Australian laws” while living in Australia and will generally “forfeit the privilege of staying” in Australia if they frequently commit serious crimes of a violent nature.

77    Considering the extent, frequency and nature of the Applicant's offending, set out in this decision, in the Tribunal’s opinion this consideration weighs heavily against revoking the cancellation of his visa.

42    The appellant advanced three matters in support of the submissions that error was disclosed by the above passages in the Tribunal’s reasons.

43    First, the appellant submitted that the relevant content of the “expectations of the Australian community” was to be found exclusively within para 13.3, and in particular to the exclusion of any reference to the principles in para 6.3, which included statements of expectations in paras 6.3(2) and (3). Counsel for the appellant submitted that these references to expectations did not refer to non-revocation decisions. We have set out para 6.3 at [18] above. Paragraph 6.3(2) provides that “[t]he Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere” (emphasis added). Paragraph 6.3(3) provides that where a non-citizen has committed a serious crime that person “should generally expect to forfeit the privilege of coming to, or to forfeit the privilege of staying in, Australia” (emphasis added). On the other hand, para 13.3 provides that where a non-citizen has been convicted of a breach of the laws of Australia or elsewhere “it may be appropriate to not revoke the mandatory visa cancellation of such a person” (emphasis added), and that “non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa” (emphasis added).

44    The appellant fastened upon the difference between the language in para 6.3(2) and the permissive language in para 13.3. That difference was said to set up contradictory statements of community expectations such that the decision-maker, when addressing the consideration in para 13.3, should eschew any reference to, or reliance upon, the principles expressed in paras 6.3(2) and (3), or any other part of para 6.3, or else stray into error. The appellant’s argument relied upon the conclusions of Charlesworth J at [67] and Stewart J at [93] in FYBR, respectively, that “[i]t is not for the decision-maker to make his or her own assessment of the community expectations and to give that assessment weight as a ‘primary consideration’”, and that “it is not for the decision-maker to undertake an assessment of what the community expectations are in each case dependent on the circumstances of the case”. The Full Court in HSRN at [24] made the same point: “it is not for the decision-maker to assess the expectations of the Australian community for the purposes of applying the consideration”. With that assumption in mind, the appellant submitted that incorporation of any of the principles expressed in para 6.3 into the analysis with respect to the primary consideration in para 13.3 would involve the decision-maker assessing what the community expectations were in a particular case – by reference to the para 6.3 principles – which was “contrary to the approach and findings in FYBR”. By way of example, the appellant drew upon the principles in paras 6.3(4) and (5), which are set out at [18] above. It was said that reliance upon those principles when considering the primary consideration of expectations of the Australian community in para 13.3 would lead to the sort of individualised and context-based determination of the content of the expectations of the Australian community which was rejected in FYBR and HSRN.

45    Moving to the particular error said to have been made by the Tribunal, the appellant submitted that at [76] the Tribunal had erroneously incorporated a portion of para 6.3(3) into its expression of the expectations of the Australian community by using the words “forfeit the privilege of staying” in Australia. Those words are not to be found in para 13.3. On the basis of the inclusion of those words from para 6.3(3) in [76] of its reasons, the appellant submitted that the Tribunal had misunderstood where the content of the expectations referred to in para 13.3 was to be found.

46    The second submission of the appellant in support of the first limb of ground two was that at [100] of FYBR, Stewart J had identified the three relevant expectations which are applicable to para 13.3 of Direction No 79, being –

(a)    that non-citizens will obey Australian laws whilst in Australia;

(b)    that it may be appropriate to refuse a visa application (or, for present purposes, to refuse to revoke a mandatory cancellation of a visa) where a non-citizen has breached, or where there is an unacceptable risk that they will breach, the expectation that they will obey the law or where they have been convicted of an offence in Australia or elsewhere; and

(c)    that in a particular case, the refusal of a visa may be appropriate simply because the nature of the character concerns or offences is such that the non-citizen should not be granted a visa.

47    The appellant submitted that these expectations were materially different to an expectation that a person will “forfeit the privilege” of staying in Australia (even if only “generally”), and therefore the Tribunal had erred at [76] in its employment of the words “the Australian community expects that a non-citizen … will generally ‘forfeit the privilege of staying’ in Australia if they frequently commit serious crimes of a violent nature”.

48    Third, the appellant submitted that the Tribunal had failed to understand and correctly apply the para 13.3 consideration because it had failed to appreciate that, in determining the weight to be attributed to that consideration, it was necessary to consider the specific circumstances of the relevant applicant’s case, including any submissions in relation to countervailing factors in the relevant applicant’s favour. Whilst the appellant’s written submissions noted this as an element of his ground two argument in relation to misunderstanding and misapplication of the para 13.3 consideration, those submissions were developed primarily under the second limb of the arguments made on behalf of the appellant in support of ground two. Accordingly, we will summarise that argument in more detail below, which deals with the second limb of ground two.

49    As to the second limb of the appellant’s argument addressed to ground two, the appellant relied on two decisions of judges of the Court at first instance, namely the decision of Beach J in Kelly v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 396 (Kelly), and the decision of Rangiah J in QHRY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 827 (QHRY). The appellant drew attention to the following passages in the reasons for judgment of Beach J in Kelly at [97] and [100] –

97    … FYBR establishes that the community expectations consideration does not incorporate all the countervailing factors from the person’s specific circumstances. Instead, these individual factors are brought to account when deciding what relative weight to give to community expectations.

...

100    In my view, a fair reading of the Minister’s reasons is that he attributed “significant weight” to his concept of the “expectations of the Australian community” without having regard to the specific circumstances of the applicant’s case, including the applicant’s very low risk of reoffending and the very serious impact of an adverse decision on him noting his medical diagnosis and inability to travel.

50    Moving now to QHRY. The Tribunal in QHRY had considered the effect on the applicant’s partner and child of a decision to affirm the Minister’s delegate’s decision to refuse a visa under s 501(1) of the Migration Act, in the context of assessing the weight to be given to the primary consideration of the best interests of the applicant’s minor children as well as other considerations. The applicant, however, submitted that the Tribunal ought also to have given consideration to the effect on the applicant’s partner and child when considering the weight to be given to the primary consideration of the expectations of the Australian community. Rangiah J recorded at [28] that the applicant made a specific representation that was directed to the weight to be given to the expectations of the Australian community, which his Honour held at [37], [43], and [47] had not been considered by the Tribunal in arriving at its conclusion that the expectations of the Australian community weighed heavily in favour of refusal of the visa. In the present appeal, counsel for the appellant relied upon the following passage in the reasons for judgment of Rangiah J at [47] –

The Minister submits that as the impact of the decision upon the applicant’s partner and children had already been considered earlier in the reasons, it was unnecessary to consider that issue again at [112]. However, the method of reasoning adopted by the Tribunal was to first decide what weight was to be given to each primary consideration and other consideration, and later assess those considerations in combination having regard to the weighting already decided. The Tribunal’s consideration of the effect upon the applicant’s partner and children was in the context of assessing the weight to be given to the best interests of the children and other considerations. The matter complained of is that the Tribunal assessed the weight to be given to the expectations of the Australian community without considering the effect upon the applicant’s partner and children. Having failed to do so, the Tribunal reasoned that the expectations of the Australian community weighed “very heavily”, and then decided that this finding together with its finding upon protection of the Australian community, “determinatively weighs” in favour of refusing the visa. The consideration of the effect upon the applicant’s partner and children elsewhere did not cure or otherwise affect the impact of the Tribunal’s failure to consider that factor when deciding the weight to be given to the expectations of the Australian community.

51    For the above reasons, Rangiah J held at [48] that the Tribunal in QHRY had made a jurisdictional error by failing to consider the relevant submission.

52    Against this background, the appellant referred to [77] of the Tribunal’s reasons which are the subject of this appeal, which was the concluding paragraph under the heading “PRIMARY CONSIDERATION 3: EXPECTATIONS OF THE AUSTRALIAN COMMUNITY”, and which we set out at [41] above. The appellant argued that by stating that the para 13.3 consideration weighed heavily against revoking the cancellation of his visa, the Tribunal at [77] had fallen into error because such weight had been ascribed “without considering anything other than [his] offending”. In written submissions, the appellant submitted that “there were specific circumstances, as outlined in relevant material before the Tribunal and clear submissions put forward by the applicant, that went to the weight the Tribunal should ascribe to the primary consideration of the expectations of the Australian community”. The appellant submitted that these were submissions and representations of which the Tribunal did not take account in relation to that consideration. The appellant listed those submissions and representations as including the following –

(a)    The applicant “has no connection with Russia for a period of more than 17 years which he spend in Australia [sic]. He lost all his contacts in Russia. He has no any [sic] relatives and even friends there, has no document which he could use in Russia to establish his identity in order to settle in any place in Russia. … until present Russia requires compulsory residence registration known as “propiska”. [The applicant] has no property in Russia where he can be registered and no one who willing to register him on their property. Therefore [the applicant] will become a homeless person. Having no residential registration he will not be able to get any job and therefore will not have income to support himself” - at AB 228. See also at AB 266.

(b)    The applicant had “developed strong ties within Australian community as well as got stable employment working in a capacity of painter for many years [sic]” - at AB 567 [89].

(c)    The applicant had a long-term partner, Ms M, who would be impacted by his return to Russia - at AB 567 [93].

(d)    The applicant “has a very longstanding history of alcohol abuse” (as noted at AB 111), and “used alcohol excessively to cope with PTSD and Major Depressive Disorder” (at AB 228). And, the applicant’s offending (specifically the 2018 offending of reckless wounding, which triggered the mandatory cancellation of his visa) occurred in the context of the applicant’s “alcohol abuse” - at AB 111.

(e)    The applicant (as of 8 May 2020) “realised that he needs to be treaded [sic] specifically for his alcohol dependency and therefore he taken a lot of efforts to get rid of that terrible dependency” and “is positive that he is fully rehabilitated from alcohol dependency” (at AB 162). Also, “that the Applicant’s character has been reformed as a result of counselling services attendance provided by alcohol and drug counsellor” - at AB 266.

(f)    The evidence regarding rehabilitation, including: i. A certificate from SMART Australia (AB 165), ii. Psychologist engagement letters (AB 166 - 172), iii. Remand Addictions certificates (AB 174 - 181).

53    At the hearing of the appeal it was clarified that the appellant did not submit that the Tribunal did not take these considerations into account in its overall evaluation. Rather, it was submitted that the Tribunal should have taken account of the submissions and representations set out above in forming a view as to the weight to be ascribed to the para 13.3 consideration concerning the expectations of the Australian community, and that it was not enough that the Tribunal had considered these matters in the context of other considerations. At the hearing of the appeal, counsel for the appellant accepted that, by way of example, the matters relating to the appellant’s ties to the Australian community had been taken into account by the Tribunal under the heading “Other consideration – strength, nature and duration of ties to Australia”, and that this consideration had then been weighed against the para 13.3 consideration in the ultimate balancing exercise between the various relevant considerations. However, counsel nonetheless maintained (at T43.39-42) –

[T]he Tribunal failed to address, refer to or respond to any of these matters [i.e the principles in cl 6.3 and the matters extracted at [52], above] at all in considering the appropriate weight to be attributed to the primary consideration of the expectations of the community let alone actually intellectually engage with them.

Ground two – consideration

54    It is important to read the Tribunal’s reasons in full, and to avoid reading them, being reasons of an administrative body and not a court, with an eye keenly attuned to the perception of error: Collector of Customs v Pozzolanic [1993] FCA 322; 43 FCR 280 at 287 (Neaves, French and Cooper JJ); Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at 271-272 (Brennan CJ, Toohey, McHugh and Gummow JJ).

55    When one examines [75] of the Tribunal’s reasons, it is clear that the Tribunal understood where the relevant content of the community expectations was to be found, namely in para 13.3 of the Direction. At [76], the Tribunal recognised that the Direction required that the primary consideration in para 13.3 was to be informed by the principles in para 6.3, and it relevantly incorporated into its reasoning the principle that a non-citizen who has committed a serious crime should generally expect to forfeit the privilege of staying in Australia. We do not accept the appellant’s submission that the Tribunal’s consideration of community expectations was required to be confined to para 13.3, and that it could not have been informed by the two normative expectations in paras 6.3(2) and (3). That is because para 7(1)(b) of the Direction required that the consideration in para 13.3 be informed by the principles in para 6.3. Nor do we accept the appellant’s submission that the principles in para 6.3 do not refer to non-revocation decisions, when they plainly do apply to non-revocation decisions by the terms of para 7(1)(b) of the Direction. There is no error disclosed by the Tribunal’s reference at [76] of its reasons to elements of the principles in paras 6.3(2) and (3). As para 7(1)(b) of the Direction provides, the principles are to inform the consideration required by para 13.3. By referring to elements of the principles, the Tribunal explained why, in the circumstances of the appellant’s case, which involved frequent and violent offending that included unprovoked attacks on women, the expectations of the Australian community weighed heavily against the cancellation of the appellant’s visa.

56    In relation to the appellant’s second argument, which relied on the statement by Stewart J in FYBR at [100] that there were three relevant expectations, for our part we would not separate the expectations in those terms. Nor would we seek to restate the expectations, which runs the risk of substituting a judicial formulation for the text of the Direction. In our view, para 13.3 of Direction No 79 requires little elaboration. We have explained para 13.3 at [37] above. The plainly-expressed first sentence of para 13.3 is the leading element of para 13.3, the whole of which is to be informed by the principles in para 6.3. What follows in para 13.3 are exemplifications of how the expectation in the first sentence of para 13.3 might play out in particular circumstances, and which might therefore shape the decision-maker’s consideration of the weight to be given to expectations of the Australian community. The last element of para 13.3 emphasises that these are the Government’s views to which decision-makers should have regard. It follows that we reject the appellant’s second submission in support of the first limb of ground two.

57    We now turn to the appellant’s claim that the Tribunal made a jurisdictional error by failing to take account of the considerations and submissions referred to at [52] above in evaluating the weight to be given to the expectations of the Australian community. It is important to remember that the norm in para 13.3 is that the Australian community expects non-citizens to obey laws while in Australia. That is the starting point of the analysis. It is relevant to observe that the essence of that norm is obedience to the law. In this regard, specific circumstances directly relevant to obedience to the law, such as frequency, nature, and extent of offending, although the subject of other primary considerations, will often inform the application of the general norm in para 13.3 because those circumstances will provide the foundation for the norm’s focus.

58    On the other hand, in addressing the submissions and representations that the appellant submits should have affected the consideration of the expectations of the Australian community required by para 13.3, it is difficult to see how any of the matters relied on by the appellant, namely, ties to the Australian community, a lack of connection with Russia, employment in Australia, the effect on his partner in Australia, a history of alcohol abuse and alcohol use as a coping mechanism for PTSD, the need to be treated for alcohol dependency, reformation of character, and prospects of rehabilitation, were matters that the Tribunal was bound to take into account in identifying and contextualising obedience to the law as a primary consideration. The Direction does not so provide. Indeed to do so might run the risk of making an error of the kind identified by FYBR and HSRN at [24], namely for the decision-maker to distort the primary consideration required by para 13.3 by forming his or her own view as to what the community would expect in the appellant’s circumstances. This is precisely the point that Beach J made at [97] of Kelly which we have set out at [49] above.

59    The countervailing factors on which the appellant relied and which are referred to at [52] above were to be considered by the Tribunal in determining what weight to attribute to the different considerations of which account had to be taken. That is because, as Beach J stated in Kelly at [97], the Tribunal had to determine the relative weight to give to community expectations. In the present case, addressing the matters relied on by the appellant which are set out at [52] above and which are identified as (a) to (f), the Tribunal took account of all of them, as follows –

(a)    at [97]-[108] the Tribunal took into account (a) and (b), being the absence of a connection with Russia, and the appellant’s ties to Australia;

(b)    at [92]-[93] the Tribunal addressed (c), being the effect on the appellant’s long-term partner should he return to Russia;

(c)    at [47]-[72] the Tribunal addressed at length the matters referred to (d) and (e), being the significance of the appellant’s alcohol dependency;

(d)    at [54]-[62], [70], and [72] the Tribunal addressed (f), being matters going to the prospects of rehabilitation, noting that the Tribunal concluded at [72] that it must be concluded that there was a high probability that the appellant would reoffend; and

(e)    then, at [109]-[111], the Tribunal took all of the considerations into account as part of its overall relative balancing exercise.

60    The essence of the appellant’s submission is that in stating at [77] that the expectations of the Australian community weighed heavily against revocation of the cancellation of the appellant’s visa, the Tribunal failed to take account of the above considerations. We do not accept that to be the case. The Tribunal’s reasons attract the observations of Gleeson CJ in Minister for Immigration and Multicultural Affairs, Re; Ex parte Applicant S20/2002 [2003] HCA 30; 198 ALR 59 at [14] –

Decision-makers commonly express their reasons sequentially; but that does not mean that they decide each factual issue in isolation from the others. Ordinarily they review the whole of the evidence, and consider all issues of fact, before they write anything. Expression of conclusions in a certain sequence does not indicate a failure to consider the evidence as a whole. …

61    Having addressed all the matters on which the appellant relies in other places in its reasons, it is to be safely inferred that in completing its statement of reasons, the Tribunal was alive to all the issues raised by the appellant when it stated, as an interim step in its process of reasoning, that the expectations of the Australian community weighed heavily against revocation. It is not to be inferred that the Tribunal made this statement ignorant of, or without regard to, the appellant’s representations as a whole and the Tribunal’s consideration of them. Seen in the context of the whole of the Tribunal’s reasons, the Tribunal expressed an informed view as to the comparative weight to be given to the expectations of the Australian community that preceded its ultimate evaluation process.

62    It follows that the decision of Rangiah J in QHRY should not be followed to the extent that [47] of his Honour’s reasons might be understood as requiring a decision-maker who is subject to Direction No 79 or cognate directions to reason in a particular way by weighing each primary or other consideration against other considerations before undertaking the overall evaluation that is required by the Direction by giving the different considerations relative weight. In the present appeal, it was open to the Tribunal as an interim step in its path of reasoning to characterise the significance of individual considerations before undertaking its final evaluation. Therefore, it was open to the Tribunal as an interim step in its reasoning process to state at [42] and [77] that the frequency, nature, and seriousness of the appellant’s offending weighed heavily against revoking the cancellation of his visa, just as it was open to the Tribunal to state at [108] that the extent of impediments to the appellant if removed weighed marginally in favour of revocation. The Tribunal’s reasons as a whole do not support the appellant’s claim that the Tribunal failed to have regard to the appellant’s circumstances in its overall evaluation, which was the subject of [109]-[111] of the Tribunal’s reasons.

63    However, another way of viewing QHRY is that it decided no more than that the Tribunal in that case had failed to consider a specific representation that was made concerning the relative weight to be given to the expectations of the Australian community and therefore committed a jurisdictional error having regard to the principles referred to in Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; 400 ALR 417 (Plaintiff M1) at [24]-[27] (Kiefel CJ, Keane, Gordon and Steward JJ). That understanding of QHRY is supported by Rangiah J’s finding at [43] that the Tribunal had failed to address, refer to, or respond to, the relevant submission. There was no representation by the appellant in the present case of the type that was the subject of QHRY which fell to be considered by the Tribunal when addressing the expectations of the Australian community. Even if there was such a representation, the appellant could not by the terms of any such representation alter or distort the guidance given by Direction No 79 to which the Tribunal was required to adhere, or effectively dictate to the Tribunal a particular method of reasoning. It was for the Tribunal to consider the totality of the appellant’s submissions and representations in accordance with the principles essayed in Plaintiff M1/2021 at [24]-[27]. The appellant has not established that the Tribunal erred in this task.

64    As to the appellant’s reliance on the reasons for judgment of Beach J in Kelly to which we referred at [49] above, we consider that Beach J stated the relevant principle correctly at [97], and that otherwise [100] constitutes a finding of fact. As has been observed often enough, findings of fact in other cases may cast light on legal principle, but whether in a particular case a decision-maker has lawfully given consideration to matters that must be addressed is not to be decided by relying on judicial observations on the particular facts of other cases: see, Teubner v Humble [1963] HCA 11; 108 CLR 491 at 503 (Windeyer J); Hahn v Conley [1971] HCA 56; 126 CLR 276 at 294 (Windeyer J); Chetcuti v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 98; 288 FCR 657 at [29] (Logan, Charlesworth and Wheelahan JJ).

65    For the above reasons, ground two is rejected.

Conclusion

66    The appeal should be dismissed with costs.

Associate:

Dated:    1 February 2024