FEDERAL COURT OF AUSTRALIA

Turini v Minister for Immigration & Multicultural Affairs [2001] FCA 822

MIGRATION – refusal of visa on character grounds – validity of Ministerial direction – failure to take a relevant consideration into account.

Migration Act 1958, ss 499(1), (1A), (2) and (2A) and 501(1) and (6).

Aksu v Minister for Immigration and Multicultural Affairs [2001] FCA 514 not followed

Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 75 ALJR 679 considered

Ruhl v Minister for Immigration and Multicultural Affairs [2001] FCA 648 not followed

RAUL TURINI v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N 988 OF 2000

WHITLAM J

29 JUNE 2001

SYDNEY

On appeal from the Administrative Appeals Tribunal

THE COURT ORDERS THAT:

1.                  The appeal is allowed.

2.                  The decision of the Administrative Appeals Tribunal given on 14 August 2000 is set aside.

3.                  The application for review of the decision of the respondent’s delegate is remitted to be heard and decided again by the Administrative Appeals Tribunal.

4.                  The respondent pay the applicant’s costs.

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

On appeal from the Administrative Appeals Tribunal

REASONS FOR JUDGMENT

Introduction

1                     This is an appeal from a decision of the Administrative Appeals Tribunal (“the Tribunal”) affirming a decision under s 501(1) of the Migration Act 1958 (“the Act”), whereby a delegate of the respondent (“the Minister”) refused to grant a spouse visa to the applicant’s wife.  The decision of the Tribunal was given on 14 August 2000.

2                     The applicant’s wife is a citizen of the Philippines.  She and the applicant were married in Australia on 5 September 1998.  At that time she was not the holder of a current visa permitting her to remain in Australia.  The Refugee Review Tribunal had affirmed a decision refusing to grant her a protection visa on 17 March 1997, and the Minister had written to her solicitors on 14 January 1998 notifying them of his decision not to consider exercising his power under s 417 of the Act.  The applicant’s wife left Australia on 14 October 1998 and lodged her application for a spouse visa at the Australian Embassy in Manila on 16 October 1998.  She was interviewed at the Embassy on 29 October 1998 and 2 August 1999 and admitted submitting a concocted story in support of her protection visa application.  On 17 January 2000 the delegate (1) found that the applicant’s wife was not of good character having regard to what he described as the “ground” in s 501(6)(c)(ii) of the Act, (2) declined to exercise “my discretion under section 501 to not refuse the visa notwithstanding that finding”, and (3) accordingly refused to grant the spouse visa.

3                     The applicant then applied to the Tribunal for review of the delegate’s decision.  One of the documents to which the delegate had regard in exercising his discretion was a direction by the Minister under s 499(1) of the Act given on 16 June 1999 (“Direction No. 17”).  A copy of that direction was thus included in the so-called “T” documents lodged with the Tribunal.  The applicant was represented at the hearing before the Tribunal by the solicitor who prepared his wife’s visa application.  His wife gave evidence by telephone from the Philippines, and testimonials about her character from residents of that country, including her parish priest, were received by the Tribunal.  Oral evidence was also given by the applicant, his parents and one of his brothers.  Two reports from a clinical psychologist (whom the Tribunal did not require to give oral evidence) were tendered in the applicant’s case together with statistics from the Judicial Commission of New South Wales on sentences imposed for offences involving dishonesty under the Act and under the Crimes Act 1900 (NSW).  In his address to the Tribunal, the applicant’s solicitor pressed his client’s case within the framework of Direction No. 17 with respect to both the question of character and the exercise of discretion.

The Decision of the Tribunal

4                     In its reasons for decision the Tribunal first described in some detail the circumstances in which the applicant’s wife applied successively for a protection visa and a spouse visa.  In recording that history, the Tribunal said:

“16.     About two weeks after their engagement, [the applicant and his wife] sought legal advice from a solicitor well experienced in the migration field.  On 28 July 1998, they instructed him to act for them.  One must assume that accurate advice was given concerning the necessity for Mrs Turini to leave the country and to the problems that she would encounter were she to apply to return.”

5                     When the Tribunal came to make its findings, it said:

“22.     I am first to consider whether Mrs Turini fails the character test on the ground that having regard to either or both of her past and present general conduct she is a person not of good character.  In determining that question, I am bound to apply a Ministerial Direction given under section 499 on 16 June 1999.  Paragraph 1.9 of that Direction requires me to consider certain matters where they are relevant and which would, in the absence of any countervailing factors constitute a failure to pass the character test.  …”

6                     The Tribunal then considered Direction No. 17 in the light of the submissions made by the applicant’s solicitor.  It referred to the bogus nature of the statements made by the applicant’s wife in her protection visa application and found that she had “compounded her initial lie over a period of some two and a half years”.  The Tribunal also said that the making of such statements was a criminal offence, for which the maximum penalty was two years’ imprisonment, and that there were “no countervailing factors of which any account can be taken”.  The Tribunal said:

“26.     The material on comparative sentencing submitted by the applicant was of no value in assessing whether Mrs Turini failed the character test.

27.       I have concluded that the seriousness of the offence to which Mrs Turini admits has been adequately established.  In my view, there is no recent good conduct shown on the evidence to indicate that her character may have reformed.  Hers was not an isolated incident.  It was a course of conduct entered into and carried out over a period of two and a half years, all for an improper purpose and all to obtain an advantage under Australian law to which Mrs Turini was not entitled.  Certain references were tendered in evidence.  In my view, they did not take the question of recent good conduct any further.  …”

7                     The Tribunal concluded (although it did not expressly say so) that the applicant’s wife was not of good character.  It then said:

“29.     …  I must then consider whether the discretion should be exercised in the applicant’s favour.  There are three primary considerations, namely the protection of the Australian community and members of the community, the expectations of the Australian community and the best interests of any relevant child.  There is no child whose interests have to be considered.

30.       So far as the protection of the Australian community is concerned, it is fundamental to the administration of an immigration system that there be no blatant and flagrant breach of its procedures for an improper purpose.  The applicant’s solicitor cited the factual details in a large number of cases and attempted to distinguish the facts in this case from those other facts.  Each case, of course, will turn on its own facts.  Here, there is a deliberate attempt to misuse the system through repeated acts of deceit.  In my view, it is essential for the protection of the Australian community that such acts be visited with appropriate consequences.

31.       As to the expectations of the Australian community, the Direction specifically identifies in paragraph 2.6(c) that the presenting of false documents or making false or misleading statements in connection with an entry or stay in Australia are to be regarded as very serious.  It is an expectation of the Australian community that persons who have engaged in such conduct should not profit from their wrongdoing.  The applicant’s solicitor submitted that the granting of a visa should not be regarded as a reward for past conduct.  In my view, this is an unrealistic approach.  So far as the Australian community is concerned, it would have an expectation that a person who has deliberately violated the immigration system should not receive a visa at a later date, whether or not this is to be viewed as a reward.

32.       There are subsidiary additional considerations to be taken into account.  I accept (as the respondent does) that emotional hardship will be suffered by the applicant.  He has been to visit his wife twice since she returned to the Philippines in October 1998 but has not been able to afford to go there more often.  He speaks with her on the telephone every week.  He has been a jeweller for 22 years.  He is a man of mature years.

33.       Notwithstanding this, he was under the impression that after Mrs Turini returned to the Philippines she would have no difficulty in re-entering Australia.  It is hard to see how he could honestly hold such a belief, having had independent legal advice from an experienced immigration solicitor.  This advice was given before he married Mrs Turini.  In my view, the emotional hardship which he undoubtedly will suffer will be discounted heavily by the fact of his pre-knowledge of the likely consequences.  Whatever he thought concerning the fate of Filipino citizens in similar circumstances (including the circumstances of a friend of his), the fact is that he received professional advice from an expert and has simply ignored it or refused to acknowledge its accuracy.

34.       Mrs Turini similarly will be emotionally affected.  Having regard to the fact that her deliberate actions were the cause of her present predicament, her hardship may also be discounted.

35.       I am to have regard to hardship which might be caused to ‘immediate family members’.  The applicant lives with his mother and father, both of whom are elderly and both of whom are upset at the difficulties in which their son finds himself.  The nature of the hardship which they will suffer, however, is not approaching a sufficient degree to amount to a countervailing consideration.  Evidence was given by Ms Withers, a psychologist, concerning the psychological effect of a refusal on the applicant.  She was not required for cross examination and I accept the material in her report.  Nevertheless, the emotional and possible financial hardship which the applicant will continue to suffer as a result of continued separation of his wife are [sic], to some extent, self-inflicted and in any event are [sic] of not such a countervailing consideration that they would outweigh the primary factors to which I must have regard.

36.              For the above reasons, the decision under review is affirmed.”

The Questions of Law

8                     The questions of law raised on this appeal, as stated in the further amended notice filed in Court at the hearing, are:

“1.       Whether the Ministerial Direction purportedly issued under section 499 of the Migration Act 1958 on 16 June 1999 and styled ‘Direction – Visa Refusal and Cancellation under Section 501 – No 17’ (‘the Ministerial Direction’) is ultra vires or void in whole or in part;

2.                  In the alternative, whether the Tribunal erred in law in its interpretation or application of the Ministerial Direction;

3.                  Whether the Tribunal failed to accord procedural fairness to the applicant in the circumstances; and/or,

4.                  Whether the Tribunal failed to take into account relevant considerations.”

The Legislation

9                     The Minister is empowered to give directions by s 499 of the Act, which provides:

“(1)     The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:

(a)               the performance of those 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 Parliament within 15 sitting days of that House after that direction was given.

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

10                  Section 501(1) of the Act provides:

“The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.”

The character test is defined by s 501(6) as follows:

“For the purposes of this section, a person does not pass the character test if:

(a)               the person has a substantial criminal record (as defined by subsection (7)); or

(b)               the person has or has had an association with someone else, or with a group or organisation, whom the Minister reasonably suspects has been or is involved in criminal conduct; or

(c)               having regard to either or both of the following:

(i)                 the person’s past and present criminal conduct;

(ii)               the person’s past and present general conduct;

the person is not of good character; or

(d)               in the event the person were allowed to enter or to remain in Australia, there is a significant risk that the person would:

(i)                 engage in criminal conduct in Australia; or

(ii)               harass, molest, intimidate or stalk another person in Australia; or

(iii)             vilify a segment of the Australian community; or

(iv)             incite discord in the Australian community or in a segment of that community; or

(v)               represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment, or in any other way.

Otherwise, the person passes the character test.”

The Ministerial Direction

11                  The preamble to Direction No. 17 states that the direction provides guidance to decision-makers in making decisions to refuse or cancel a visa under s 501 of the Act.  Direction No. 17 consists of two parts.  Part 1 provides directions on the application of the character test prescribed by s 501(6) of the Act.  Part 2 provides directions in respect of the discretion to be exercised if a person does not pass the character test.

12                  Part 1 of Direction No. 17 describes pars (a) - (d) of s 501(6) as providing “four grounds against which a non-citizen may be considered to not pass the Character Test”.  The following is the text of the direction in respect of par (c):

“1.7     Under paragraph 501(6)(c), decision-makers are required to make a finding that a non-citizen is “not of good character” on account of the non-citizen’s past and present, criminal or general conduct and thereby does not pass the Character Test.  In reaching the conclusion that a non-citizen is not of good character, decision-makers must take into account all the relevant circumstances of a particular case, including evidence of rehabilitation and recent good conduct.

•           Subparagraph 501(6)(c)(i) – past and present criminal conduct

1.8       In considering whether a non-citizen is not of good character against subparagraph 501(6)(c)(i), decision-makers should take into consideration the following:

(a)                   the nature, severity and frequency of the offence/s;

(b)                   how long ago the offence/s were committed;

(c)                   the non-citizen’s record since the offence/s were committed, including:

•           any evidence of recidivism or continuing association with criminals;

•           a pattern of similar offences; and/or

•           pattern of continued or blatant disregard/contempt for the law; and

(d)                   any mitigating circumstances such as may be evident from judges’ comments, parole reports and similar documents.

•           Subparagraph 501(6)(c)(ii) – past and present general conduct

1.9       In considering whether a non-citizen is not of good character against subparagraph 501(6)(c)(ii), decision-makers should consider the following matters (where they are relevant to the facts of the particular case), and where they are relevant, would, in the absence of any countervailing factors, constitute a failure to pass the Character Test:

(a)               whether the non-citizen has been involved in activities indicating contempt, or disregard, for the law or for human rights.  This could include, but need not be limited to:

•           engaging in business activities which fall short of criminal fraud requiring proof beyond reasonable doubt, but which, on a more likely than not basis, are disreputable and reflect poorly on a non-citizen’s moral qualities;

•           continual evasion or non-payment of debt;

•           continual disregard as to payments of family maintenance;

•           involvement in activities such as organised crime, terrorism, drug related activities, political extremism, extortion, “white collar” crime, fraud, breaches of immigration law; or

•           involvement in war crimes or crimes against humanity.

(b)               whether the non-citizen has, in connection with any application for the grant of a visa or any kind of Government benefit, provided a bogus document or made a false or misleading statement;

(c)                whether the non-citizen has ever made a false or misleading declaration on an approved form, as defined in subsection 5(1) of the Act, about the non-citizen’s character or conduct or both;

(d)               whether the non-citizen has been removed/deported from Australia or removed/deported from another country; or

(e)                whether the non-citizen has been dishonourably discharged from the armed forces of any country or discharged prematurely as the result of disciplinary action in circumstances, or because of conduct, which would be regarded as serious in Australia.

1.10     In addition to the above matters, a non-citizen is, in the absence of any countervailing factors, not of good character under the general conduct provisions if the conduct of the non-citizen has:

(a)               resulted in offences that are the subject of charges but are not resolved pending a hearing or trial.  Matters to be considered when deciding the weight to be given to unresolved charges could include, (but are not limited to):

•           whether there is a pattern of conduct relating to the applicant (eg similar charges in the past, other criminal behaviour); and/or

•           the seriousness of the offence with which the applicant has been charged; or

(b)               resulted in the non-citizen being acquitted of a criminal offence or where there has been no conviction recorded.

1.11     General conduct also includes recent good conduct.  Any good acts of the non-citizen after reprehensible conduct are indications that the non-citizen’s character may have reformed.  Thus, both good and bad conduct must be taken into consideration in obtaining a complete picture of the non-citizen’s character.  However, where the decision-maker is not fully persuaded that the non-citizen has reformed, the discretion to refuse or cancel a visa is enlivened, and evidence of good acts and recent conduct becomes relevant to the exercise of the discretion (see Part 2).”

13                  Part 2 of Direction No. 17 is headed “Exercising the Discretion”.  It commences as follows:

“2.1     If a non-citizen does not pass the Character Test, decision-makers must have regard to the following considerations when exercising the discretion to decide whether or not the non-citizen should be permitted to enter or remain in Australia.

Weight of considerations

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

PRIMARY CONSIDERATIONS

2.3       In making a decision whether to refuse or cancel a visa, there are three primary considerations:

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

(b)       the expectations of the Australian community; and

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

14                  The first of those three primary considerations is then elaborated in paragraphs 2.4 - 2.11 of the direction.  This section of the direction begins as follows:

“Protection of the Australian Community

2.4       The Government seeks to take reasonable steps to protect the Australian community from the actions of criminals and to take action to lessen the risk of crime and disorder within the Australian community.  The Government is especially mindful to take reasonable steps to protect the safety of the more vulnerable members of the community, such as children and young people who are especially at risk.  This is of particular importance when the offences in question are in relation to drugs and crimes of violence.

2.5       The factors relevant to an assessment of the level of risk to the community of the entry or continued stay of a non-citizen include:

(a)               the seriousness and nature of the conduct;

(b)               the likelihood that the conduct may be repeated (including any risk of recidivism); and

(c)                whether visa refusal or cancellation may prevent or discourage similar conduct (general deterrence).”  (Emphasis supplied.)

15                  Further specific provision is made in following paragraphs for each of the factors identified in paragraph 2.5.  For present purposes it is only necessary to set out the text in respect of factor (b), which provides:

“2.10   It is the Government’s view that the person’s previous general conduct and total criminal history are highly relevant to assessing the likelihood of an offence and risk of recidivism.  In particular, the following factors will be relevant to the assessment:

(a)               a non-citizen commits a further offence after having been warned previously about the risk of refusal or cancellation;

(b)               a non-citizen with several previous convictions in Australia should be considered as having an increased risk of recidivism in light of that past behaviour.  In cases where there is a gap or gaps between convictions, the inference may be open that the non-citizen has demonstrated that a substantial period since an earlier conviction is not a reliable indicator that future offences will not be committed; and

(c)                the extent of rehabilitation already achieved, the prospect of further rehabilitation and the positive contribution of the community the person may reasonably be expected to make.”

16                  The two other primary considerations are dealt with in paragraphs 2.12 - 2.16.  The direction then provides as follows:

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

(a)               the extent of disruption to the non-citizen’s family, business and other ties to the Australian community;

(b)               genuine marriage to, or de facto or interdependent relationship with, an Australian citizen, permanent resident or eligible New Zealand citizen:

•           in assessing the compassionate claims of the Australian partner (Australian citizen, resident or eligible New Zealand citizen), decision-makers must consider the circumstances under which the relationship was established and whether the Australian partner knew that the non-citizen was of character concern at the time of entering into or establishing the relationship;

(c)                the degree of hardship which would be caused to immediate family members lawfully resident in Australia (including Australian citizens), including whether the immediate family members are able to travel overseas to visit the non-citizen, the nature of the relationship between the non-citizen and the immediate family members, whether immediate family members are in some way dependent on the non-citizen for support which cannot be provided elsewhere;

(d)               family composition of the non-citizen’s family, both in Australia and overseas;

(e)                the likelihood of the non-citizen seeking to evade any outstanding legal matter or on-going liability;

(f)                 the likelihood of the non-citizen breaching any considerations attached to the outstanding legal or on-going matter, any cost or bilateral implications of such a breach (eg extradition);

(g)               the nature and seriousness of the offence(s) or alleged offence(s) (in the context of seeking to evade an outstanding legal matter);

(h)               any evidence of rehabilitation and any recent good conduct;

(i)                 whether the application is for a temporary visa or permanent visa;

(j)                 the purpose and intended duration of the entry to or stay in Australia, including any significant compassionate circumstances; and

(k)               the fact that a non-citizen has been formally advised in the past by an officer of the Department of Immigration and Multicultural Affairs about conduct which brought him or her within the deportation provisions at section 200/201 of the Act or the visa refusal and cancellation provisions at section 501.”

The final section of Direction No. 17 deals with certain international obligations which do not arise for consideration in the present case.

Grounds of Appeal

17                  The Tribunal plainly regarded itself as bound to apply Part 1 of Direction No. 17 in determining whether the applicant’s wife passed the character test prescribed by s 501(6)(c) of the Act.  This is hardly surprising since that was the basis upon which both parties presented their cases at the hearing before the Tribunal.  Nonetheless, counsel for the applicant submits that paragraphs 1.9 and 1.11 of Direction No. 17 are invalid by virtue of s 499(2) of the Act because they are inconsistent with s 501(6)(c)(ii).  This submission rests on a further submission by the applicant’s counsel that s 501(6)(c)(ii) involves the exercise of a discretion.

18                  One aspect of paragraph 1.9 strikes me as odd.  Although s 501(6)(c) of the Act distinguishes “criminal conduct” from “general conduct”, some of the matters specified in paragraph 1.9 (which is supposed to be concerned with general conduct) depend upon such conduct being criminal.  This curious assignment within Direction No. 17 of certain kinds of conduct would not appear to matter so long as the decision-maker was obliged to have regard to such criminal conduct.  A Full Court of this Court held in respect of a decision of the Tribunal on a forerunner of s 501(6)(c) that no importance can be attached to the fact that conduct, which was actually criminal conduct within the meaning of subpar (i), was considered on the basis that it was made relevant by subpar (ii): Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187 at 196.

19                  However, that is not the basis of the present attack on the validity of the direction.  Counsel for the applicant submits that a person cannot effectively be deemed not to be of good character because of the matters listed in (a) to (e) of paragraph 1.9.  Such a direction is said to be inconsistent with s 501(6)(c) of the Act.

20                  It may be accepted that Direction No. 17 is not a direction like the example given in s 499(1A) of the Act, but the power under s 499(1) is not limited to giving directions of that type.  The scope for a valid direction depends on the nature of the functions to be performed or of the powers to be exercised under the Act.  In a case where par (c) of s 501(6) is in issue, the visa applicant has to satisfy the decision-maker under s 501(1) that he or she is not a person who is not of good character.  The identification of the decision-maker’s task and consideration of how the decision-maker may properly go about it was recently explained by Hayne J in Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 75 ALJR 679 at 711-712:

“[188]            … The subject about which the Minister was required to be satisfied was a subject which required the formation of a value judgment.  It required the development of a view about what kinds of conduct are, or may be, inconsistent with being of good character.  It obviously permitted the formation of a view that, in the absence of some countervailing consideration, certain kinds of past criminal conduct would sufficiently demonstrate that a person was not of good character.  If the Minister formed such a view, and announced that this was the view that had been formed and would be applied in the administration of the Act, there could be no suggestion that the Minister had thereby prejudged any application which was to be made.  The most that could be said is that the Minister had stated an understanding of what was meant by the statutory expression ‘is not of good character’ and had indicated how the Act would be administered.  So long as the meaning adopted revealed no error of law (which it would if the meaning assigned lay outside the permissible range of circumstances that could be embraced by the expression) there could be no challenge to what was done.  Given that the decision-maker is the Minister, the expression can be seen to embrace a wide range of permissible views.

[189]  Moreover, the Act, by authorising the Minister to reach the relevant value judgment by having regard to ‘the person’s past criminal conduct’ as opposed to ‘the person’s general conduct’, permitted the Minister to form the view that certain kinds of past criminal conduct necessarily and inevitably demonstrated that a person was not of good character.  Again, so long as the meaning which was thus assigned to the expression ‘is not of good character’ revealed no error of law, the fact that the Minister announced that he or she proposed to administer the Act according to that understanding could not be said to constitute the prejudgment of any particular case that may later arise.

[190]  There is no prejudgment in such a case because of the nature of the statutory task.  It is to reach a degree of persuasion (satisfaction) that a value-laden standard (is not of good character) is met.  The determination of that standard is not a task which the Act requires the Minister to undertake wholly anew each time it is suggested that there may be a case for the exercise of the discretionary power, conferred by the Act, to cancel or refuse a visa.  It was open to the Minister to determine the standard to be applied in a way that left little or no room for debate about its application in an individual’s case.

[191]  Determining the standard in that way would not fetter the exercise of a discretion.  The relevant discretion which falls for exercise is the discretion to refuse to grant or, in these cases, to cancel a visa if s 501(2) applied to the person.  All that the Minister does, in the circumstances posited, is announce the particular construction that the necessarily imprecise statutory standard will be given in certain kinds of case.”

21                  The statutory provision referred to in the last paragraph of the above excerpt has now been repealed.  It was, however, the predecessor of s 501(6)(c) and what is said about the nature of the statutory task is, in my view, applicable in the present case.  It does not matter that Hayne J’s observations were made in a discussion of rules about bias or apprehension of bias.  Fortuitously his Honour’s explanation gives a good indication, in my view, of the scope for valid directions under s 499 of the Act in respect of such a “value-laden standard”.  Since the statutory expression “is not of good character” embraces a wide range of permissible views, the Minister may, in my opinion, give a direction that, “in the absence of any countervailing factors”, certain kinds of conduct, such as those specified in paragraph 1.9 of Direction No. 17, betoken that a person is not of good character.  The determination of such standards does not fetter any exercise of discretion.  The final sentence of paragraph 1.7 of the direction is also significant and must, along with paragraph 1.11, be borne in mind by decision-makers, but their consideration of whether a person passes the character test does not involve the exercise of a discretion.  The argument of counsel for the applicant is fundamentally misconceived, and the challenge to the validity of paragraph 1.9 is not made out.

22                  Counsel for the applicant also submits that the phrase “not fully persuaded” in the first sentence of paragraph 1.11 of Direction No. 17 erects too high a standard of satisfaction and is inconsistent with the Act.  However, counsel for the Minister submits, and I accept, that there is no relevant difference between being “fully persuaded” and being “satisfied” which is, after all, what s 501(1) of the Act requires.  I think that, on a fair reading, the impugned sentence does no more than remind decision-makers that, where a person does not pass the character test notwithstanding evidence of good acts and recent good conduct, those other matters remain relevant to the exercise of the discretion.

23                  Part 1 of Direction No. 17 is, in my opinion, a valid exercise of the power given by s 499(1) of the Act.  The alternative submission of counsel for the applicant is that the Tribunal erred in its interpretation of paragraph 1.9 of the direction because it regarded itself as bound to apply its terms.  No doubt, it did, but this was not an error.  The direction was given to the Tribunal, and s 499(2A) of the Act obliges the Tribunal to comply with it.

24                  Counsel for the applicant next submits that his client was denied natural justice by the Tribunal.  He says that the Tribunal was obliged to warn the applicant that it would make the “assumption” recorded in its reasons which I have reproduced in [4] above.  Its failure to do so is said to be procedurally unfair because the Tribunal later discounted heavily the applicant’s emotional hardship “by the fact of his pre-knowledge of the likely consequences”.

25                  There is no substance whatsoever in this so-called natural justice ground.  The applicant’s knowledge of concern about his wife’s character was plainly relevant in the circumstances of this case as paragraph 2.17(b) of Direction No. 17 made clear.  A transcript of the hearing before the Tribunal is in evidence.  It shows that his solicitor led evidence from the applicant on this topic and that, when the solicitor for the Minister sought to cross-examine him about the advice he received, his solicitor objected.  The transcript also demonstrates that the Tribunal regarded the applicant’s knowledge and expectations as an important topic and that the applicant’s solicitor specifically addressed paragraph 2.17(b) of the direction in his submissions to the Tribunal.  Although the Tribunal used the expression “[o]ne must assume”, it has merely drawn an inference on the evidence and material before it that the applicant was given “accurate” legal advice.  Such an inference could quite reasonably be drawn in respect of what was obviously a very live issue before the Tribunal.  The Tribunal was under no obligation to give the applicant warning of the available inferences.

26                  The final ground of appeal concerns the exercise of the discretion under s 501(1) of the Act.  Part 2 of Direction No. 17 provides for three primary considerations.  So far as the first of those considerations, the protection of the Australian community, is concerned, paragraph 2.5 directs that the likelihood of re-offending is a factor to be taken into account in the assessment of the level of risk to the community of the entry of the non-citizen.  Paragraph 2.10 spells out the Government’s view that, in undertaking such an assessment, a person’s “previous general conduct and total criminal history are highly relevant”.  At the hearing before the Tribunal the applicant adduced evidence on this topic, including the second report prepared by the clinical psychologist, and his solicitor addressed this particular factor in his submissions.  I accept, as counsel for the Minister submits, that the Tribunal was under no obligation to refer to the psychologist’s second report, and it did not.  But the important question remains as to the consequences of the Tribunal’s failure to advert to this factor at all in its reasons for judgment.

27                  After I reserved judgment in this case, Dowsett J held in Aksu v Minister for Immigration and Multicultural Affairs [2001] FCA 514 that Part 2 of Direction No. 17 is inconsistent with s 501(2) of the Act, which provides a discretion to cancel a visa.  His reasoning would extend to the discretion under s 501(1) of the Act.  His Honour expressed concern about the use of categories of considerations, “primary” and “other”, and the prescription that I have highlighted in paragraph 2.2 reproduced at [13] above.  Dowsett J said at [22] – [24]:

“22.     This appears to mean that in every case, considerations concerning protection or expectation must be treated as at least equally important as any non-primary consideration, without regard to the facts of the case.  Elsewhere, the Direction invites a balancing exercise which would normally involve an assessment of all relevant factors, having regard to their significance in the case in question.  The Direction appears to fetter that process to the extent that it prescribes that some factors can never have more weight than others.

23.       The qualification that “a primary consideration cannot be conclusive in itself” is of little effect.  Two primary considerations, protection and expectations will be present in almost all cases, militating in favour of refusal or cancellation of the visa.  Where there are two primary considerations, and no other consideration can have more weight than either of them standing alone, an almost mathematical logic compels a decision which upholds those primary considerations.  Further, as the primary considerations are really direct outcomes of the person’s bad character, the effect is that once he or she fails the character test, there is virtually a prescription in favour of refusal or revocation of the visa.  This is inconsistent with the unfettered discretion conferred by s 501.

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

28                  Dowsett J’s decision has since been followed by Cooper J in Ruhl v Minister for Immigration and Multicultural Affairs [2001] FCA 648, who held that the Minister unlawfully fettered his discretion under s 501(2) by applying Direction No. 17.  His Honour said at [39] this was so because:

“…  He has accorded pre-eminence to the primary considerations and denied the possibility that the other matters particular to the circumstances of the applicant were entitled to greater importance than a primary consideration in the exercise of an unfettered discretion under s 501 of the Act.”

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

30                  It follows that, in my view, Direction No. 17 was a valid direction under s 499(1) of the Act, with which the Tribunal was bound to comply.  Accordingly, it was bound to take account of the likelihood of re-offending in assessing the risk to the community posed by the entry of the applicant’s wife to Australia.  This factor was a part of the applicant’s case, and the Tribunal was not entitled to ignore it.  Such an aspect of a primary consideration was significant where the Tribunal plainly regarded his wife’s earlier conduct in Australia as criminal.  The failure to take into account this relevant consideration was an error of law. 

31                  The appeal will be allowed with costs.  The decision of the Tribunal will be set aside, and the application for review of the delegate’s decision will be remitted to be heard and decided again by the Tribunal.

Associate:

Dated:              29 June 2001