FEDERAL COURT OF AUSTRALIA

Javillonar v Minister for Immigration & Multicultural Affairs [2001] FCA 854

MIGRATION – cancellation of visa pursuant to s 501 of the Migration Act 1958 (Cth) (“Act”) – where decision made by the Minister for Immigration and Multicultural Affairs personally – where reasons for decision prepared by officers of the Department for Immigration and Multicultural Affairs – whether this constitutes a failure to give reasons as required by s 501G(1)(e) of the Act – whether the Minister, in making his decision, fettered his discretion by relying Direction No. 17 (Visa Refusal and Cancellation under section 501 of the Migration Act 1958 (Cth)) made pursuant to s 499 of the Act

Migration Act 1958 (Cth)  s 476(1)(a), s 476(1)(e), s 499, s 501, s 501G(1)(e), s 501G(4)

Acts Interpretation Act 1901 (Cth)  s 25D, s 46(1)(b)

Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30  considered

Minister for Immigration and Multicultural Affairs v Singh (2000) 98 FCR 469  referred to

Misiura v Minister for Immigration & Multicultural Affairs [2001] FCA 133  referred to

Re Ruddock, Minister for Immigration and Multicultural Affairs; ex parte Truong (Hayne J, 22 March 2001, unreported)  followed

Halmi v Minister for Immigration and Multicultural Affairs (1999) 95 FCR 1  referred to

Aksu v Minister for Immigration & Multicultural Affairs [2001] FCA 514  considered

Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 50 FCR 189  referred to

Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409  referred to

Ruhl v Minister for Immigration and Multicultural Affairs [2001] FCA 648  considered

Bustescu v Minister for Immigration and Multicultural Affairs (1999) 57 ALD 161  considered

Lau v Minister for Immigration & Multicultural Affairs [2000] FCA 698  referred to

Widgee Shire Council v Bonney (1907) 4 CLR (Pt 2) 977  referred to

Airservices Australia v Canadian Airlines International Ltd (1999) 167 ALR 392  referred to

Direction No. 17 under section 499 of the Migration Act 1958 (Cth) – Visa Refusal and Cancellation under section 501 of the Migration Act 1958 (Cth)

LUISITO JAVILLONAR v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 292 of 2001

STONE J

6 JULY 2001

SYDNEY

THE COURT ORDERS THAT:

the application be dismissed with costs.

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

REASONS FOR JUDGMENT

introduction

1                     The application before the Court seeks to review the decision of the respondent, the Minister for Immigration and Multicultural Affairs (“Minister”), made on 3 March 2001 to cancel the applicant’s subclass 100 visa.

factual background

2                     In July 1988, the applicant’s application for resident status was approved on the ground of his marriage to an Australian citizen, Ms Jean Sayson, on 19 April 1987. The applicant departed Australia for the Philippines on a false passport on in 1992, apparently to avoid prosecution in relation to some apparently minor drug offences. On 12 July 1995, the applicant applied for a spouse visa to enter Australia sponsored by Ms Jean Sayson. In the application form, the applicant did not refer to the fact that, although he had never divorced his Australian wife, he married a second time while in the Philippines and had three sons by that marriage. The applicant was granted a spouse visa.

3                     After discovering that the application for a spouse visa was inaccurate, the Department of Immigration and Multicultural Affairs (“Department”) sent the applicant a number of notices of intention to cancel his spouse visa under s 501(2) of the Migration Act 1958 (Cth) (“Act”).  Those notices were dated 11 January 2000, 24 February 2000 and 11 September 2000. The applicant made two submissions as to why his visa should not be cancelled, dated 18 October 2000 and 8 February 2001.

4                     In February 2001, a brief as to whether the applicant’s visa should be cancelled under s 501(2) of the Act was prepared by officers of the Department for consideration by the Minister. Part E of that brief was headed “Decision” and contained three options from which the Minister could select. It was set out as follows:

“I have considered all relevant matters including (1) an assessment of the Character Test as defined by s501(6) of the Migration Act 1958, (2) the Minister’s Direction No.17 under s 499 of that Act and the non-citizen’s comments (if any), and have decided that:

Please delete whichever is NOT applicable:

(a)               I am satisfied that the non-citizen passes the character test

or

(b)               I reasonably suspect the non-citizen does not pass the character test and the non-citizen has not satisfied me that he passes the character test but I have decided not to exercise my discretion to cancel the visa

or

(c)               I reasonably suspect the non-citizen does not pass the character test and the non-citizen has not satisfied me that he passes the character test and I have decided to exercise my discretion to cancel the visa so I hereby cancel the visa.”

5                     Options (a) and (b) were struck through and the Minister had signed the document which was dated by hand, 3 March 2001. The Minister did not give any separate reasons for his decision nor did he state that he adopted the Department’s brief.

6                     On 20 March 2001, officers of the Department visited the applicant’s business premises and provided him with a letter notifying him of the decision and which enclosed “a copy of the decision record that sets out the reasons for the decision (other than non disclosable information)”. It was common ground that the decision record referred to was a copy of the Department’s brief including Part E signed by the Minister. The letter also stated that, “The particular ground under which you did not pass the Character Test is subsection 501(6)(c)(ii) of the Act.” The applicant was then taken into immigration detention and has been in detention since that time.

legislative background

7                     The Minister’s decision to cancel the visa was made pursuant to s 501(2) of the Act, which provides that:

The Minister may cancel a visa that has been granted to a person if:

(a)     the Minister reasonably suspects that the person does not pass the character test; and

(b)     the person does not satisfy the Minister that the person passes the character test.

The character test is defined in s 501(6) of the Act. In particular, a person does not pass the character test if, having regard to his present and past general conduct, that person is not a person of good character; s 501(6)(c)(ii).

8                     Section 501G of the Act provides:

(1)   If a decision is made under subsection 501(1) or (2) or 501A(2) or section 501B or 501F to:

(a)   refuse to grant a visa to a person; or

(b)   cancel a visa that has been granted to a person;

the Minister must give the person a written notice that:

(c)    sets out the decision; and

(d)   specifies the provision under which the decision was made and sets out the effect of that provision; and

(e)    sets out the reasons (other than non-disclosable information) for the decision; ……

(2)               …

(3)               A notice under subsection (1) must be given in the prescribed manner.

(4)               A failure to comply with this section in relation to a decision does not affect the validity of the decision.

9                     The obligation to give reasons in s 501G(1)(e) is expanded by s 25D of the Acts Interpretation Act 1901 (Cth), which provides:

Where an Act requires a tribunal, body or person making a decision to give written reasons for the decision, whether the expression “reasons”, “grounds” or any other expression is used, the instrument giving the reasons shall also set out the findings on material questions of fact and refer to the evidence or other material on which those findings were based.

10                  As indicated in [4] above, the opening words of Part E of the brief prepared for the Minister refer to the Minister’s Direction No 17 made under s 499 of the Act (“Direction 17”). Section 499 provides that the Minister may give written directions to a person or body having functions or powers under the Act concerning the performance or exercise of those functions or powers. Subsections (2) and (2A) provide respectively that the Minister’s direction must not be inconsistent with the Act or the regulations made under it and that it is binding on the person or body.

11                  As the decision was made by the Minister personally, it is not reviewable under the provisions of s 500. As it is not excluded by s 475(2) of the Act, however, the Minister’s decision is a judicially reviewable decision under s 475(1)(c) of the Act. The application for review in this Court was therefore made under s 476 of the Act.

application for an order of review

12                  At the hearing of this matter on 7 May 2001, the applicant pressed only one of the grounds set out in the further amended application for an order of review, namely that that the procedures required by the Migration Act 1958 to be observed in connection with the making of the decision were not observed; s 476(1)(a).

13                  After the hearing, however, the applicant sought leave to make further amendments to his application because of some recent decisions of this Court which the applicant believed supported an additional ground of review, namely that:

The decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision; s 476(1)(e)

14                  The Minister consented to this course. Both parties were permitted to provide supplementary written submissions in respect of the additional ground of review and also in respect of the decision of the High Court in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 (“Yusuf”) which was handed down on 31 May 2001.

consideration

Failure to give reasons – s 501G(1)

15                  Mr Lloyd, counsel for the applicant, submitted that the Minister’s selection of option (c) and his signing of Part E of the Department’s brief did not amount to giving reasons for his decision. There was nothing, he submitted, in what the Minister had done to indicate whether he accepted some or all of the reasoning in the Departmental brief or had made his decision on quite different grounds. Therefore, it was submitted, the Minister had not complied with s 501G(1)(e). In Mr Lloyd’s submission this failure to provide reasons constitutes a reviewable error under s 476(1)(a) of the Act. In making this submission Mr Lloyd relied on Minister for Immigration and Multicultural Affairs v Singh (2000) 98 FCR 469 (“Singh”).

16                  Since the hearing in this proceeding, however, the High Court, in Yusuf, rejected the proposition, propounded in Singh, that a failure to make findings on material questions of fact constitutes a breach of s 430 of the Act and consequently is not a reviewable error under s 476(1)(a). In his additional submissions, Mr Lloyd attempted to distinguish Yusuf. In summary, his argument concentrated on the fact that in Yusuf there was an alleged failure by the Refugee Review Tribunal to make certain material findings of fact. There was no allegation that the Tribunal had made findings that it had failed to set out. It was thus not necessary to decide, and the majority in Yusuf did not decide, whether a failure to set out actual findings in breach of s 430 is a reviewable error within s 476(1)(a). Mr Lloyd submitted that the authority of the line of cases ending in Singh that a breach of s 430 is a reviewable error within s 476(1)(a) is not diminished by Yusuf.

17                  Much of what Mr Lloyd says is undoubtedly correct. Yusuf was concerned with the consequences of a failure to make findings rather than a failure to record findings that had been made.  Gleeson CJ recognised this distinction when he commented at [10]:

“There may be cases where it is proper to conclude that the Tribunal has not set out all its findings. The consequences that might follow are not presently in issue.  No one suggests that the present are such cases.”

18                  A failure to set out findings on material questions of fact is clearly a breach of s 430 but it is not at all clear what follows from this. As Callinan J pointed out in Yusuf at [211], not all errors of law are reviewable by the Federal Court under s 476. Gaudron J, however, commented,  at [31], that:

“… there is no basis for reading s 476(1)(a) as not extending to the procedures required by s 430 of the Act.”

19                  Even if Gaudron J’s approach were to be accepted by the High Court, the same consequence may not apply to a breach of s 501G because of s 501G(4) which states that failure to comply with s 501G, “does not affect the validity of the decision”. An argument to this effect was accepted by Madgwick J in Misiura v Minister for Immigration & Multicultural Affairs [2001] FCA 133 at [28], where his Honour stated:

“There is no warrant to take an artificially narrow view of [s 501G(4)]. The intention was plainly to prevent a decision such as the present being undone for failure, among other things, to set out the reasons for it.”

20                  As a practical matter, it may also be very difficult to determine whether there has been a breach in a particularcase .  It would appear that a majority of the High Court in Yusuf would interpret the absence of a finding on some question of fact as an indication that the decision maker made no finding on the matter and, in the words of the Chief Justice at [5]:

“that, in turn, may indicate that the Tribunal did not consider the matter to be material.”

21                  A similar view was expressed by Gaudron J at [37], Callinan J at [217], and in the joint judgment of McHugh, Gummow and Hayne JJ at [69] where their Honours also commented that such a failure may reveal some other basis for judicial review. Pertinently their Honours also made the following statement at [77]:

“Moreover, it may greatly be doubted that an obligation to set out findings could be said to be a procedure which is to be observed in connection with the making of the decision in question, as the setting out of the decision and reasons assumes that the decision has already been made.”

22                  Mr Lloyd is correct in the distinction he draws between this case and Yusuf and it may be that, as a strict matter of precedent, he is also correct in his view, referred to in [16] above, that a breach of s 430 (or in this case s 501G) is a reviewable error. Nevertheless there is sufficient indication of a contrary view in Yusuf to cast doubt on the position.

23                  The breach of s 501G(1)(e) that is claimed by the applicant in this case is, of course, much more extensive than a mere failure to set out a finding made on the basis of on one or more material facts. The applicant here alleges a total failure to provide the written notice as required under the section. Were that claim to be made out, it may well be reviewable by this Court. However it is not necessary for me to resolve this issue because I do not accept the applicant’s contention that the Minister has failed to give reasons.

24                  In my opinion Mr Smith, counsel for the respondent, is correct in contending that the brief prepared by the Department constituted sufficient compliance with s 501G(1)(e) and that it was irrelevant that that document was not prepared by the Minister personally. Mr Smith referred to the decision of Hayne J of the High Court of Australia, sitting as a single judge, in Re Ruddock, Minister for Immigration and Multicultural Affairs; ex parte Truong (Hayne J, 22 March 2001, unreported). In that case, as in this case, the only document purporting to comply with s 501G(1)(e) was a brief prepared by the Department. Hayne J stated:

“In my opinion, it is not arguable that this document alone or this document in conjunction with the notice insufficiently complied with the obligation imposed by section 501G(1)(e). Read as a whole, the document reveals the matters that were before the Minister, assigned to various of them particular weight, and it was on the basis of that information – and I interpolate – only that information, that the Minister then reached the decision which he did. In any event, as I have said, the matter is put beyond doubt by the terms of the notice that were given to Mr Truong that the decision record sets out the reasons for the decision that was reached.”

25                  Although, as Mr Lloyd submitted, s 25D of the Acts Interpretation Act 1901(Cth) was not specifically drawn to Hayne J’s attention, I do not accept that his Honour’s views are in any way inconsistent with the provisions of that section.

26                  In this case, the Department’s brief to the Minister contained the applicant’s personal and visa details, information relevant to the character test (see [7] above), an assessment of the applicant’s character and an outline of matters relevant to the Minister’s discretion. The Minister’s decision is consistent with the analysis and recommendations made in the Departmental brief. Given that the Minister is obliged by s 501G(1)(e) to provide reasons for his decision, the completion of Part E by the Minister without comment leads to the conclusion that the Minister adopted the brief as a statement of his reasons. I agree with the submission put by Mr Smith that the three options set out in Part E reflect the fact that, once certain findings of fact have been made, the Minister’s decision is discretionary.

Additional ground of review - s 476(1)(e)

27                  The additional ground of review was based on the applicant’s allegation that the  Minister had applied the provisions of Direction 17 to the exercise of his discretion under s 501 of the Act when he adopted as his own the reasoning contained in the brief prepared by the Department. In doing so, it was submitted, he had fettered his discretion  contrary to the intention of s 501 that the Minister’s discretion be unfettered giving rise to an error of law within s 476(1)(e) of the Act.

Direction 17

28                  Direction 17 is made under s 499 of the Act. Although directions made under s 499 are binding on a person or body having functions or powers under the Act, they are not binding on the Minister; Halmi v Minister for Immigration and Multicultural Affairs (1999) 95 FCR 1; Misiura v Minister for Immigration & Multicultural Affairs [2001] FCA 133; Aksu v Minister for Immigration & Multicultural Affairs [2001] FCA 514 (“Aksu”). The fact that the Minister is not bound by Direction 17 does not preclude him being guided by it provided that his decision is  “the result of an independent assessment of all the circumstances of the particular case and not the uncritical application of policy”; Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 50 FCR 189 at 206. See also Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 at 419.    

29                  Direction 17 consists of a Preamble and two parts which respectively deal with the application of the character test and the considerations that must be taken into account in deciding whether, in exercise of the discretion under s 501, a visa should be refused or cancelled. The preamble states that the Direction “provides guidance to decision-makers in making decisions to refuse or cancel a visa under section 501 of the Migration Act 1958 (theAct).” It refers to a decision-maker’s discretion in deciding whether to refuse an application or to cancel a visa once the character test has not been passed and makes the following statement:

“Exercise of this discretion will take into account a wide range of factors including the expectations of the community, the nature of crimes committed, the non-citizen’s links to Australia and any relevant international law obligations.

The Act enables the Minister to give precise written directions on what weight is to be given to each of these factors. These directions are binding to all decision-makers, including merits review tribunals, to ensure a consistency of approach.”

[Emphasis added]

30                  The applicant’s submission focuses on paragraph 2.2 of the Direction which is as follows:

“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.  … 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.”

31                  The primary considerations to which paragraph 2.2 refers are stated to be:

(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.

32                  Paragraph 2.17 of the Direction deals with “Other Considerations” and provides:

“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.”

33                  The Direction then sets out a list of other considerations including issues of family relationships and the degree of hardship that might be caused to family members, the likelihood of an applicant breaching conditions or re-offending and the seriousness of the conduct that has given rise to the character concerns.

34                  In Aksu, Dowsett J at [21]-[24] made the following comment concerning the three primary considerations identified in Direction 17:

“21. There is little valid distinction for present purposes between protection of the Australian community and the expectations of the Australian community. Each is really a function of the seriousness of the person’s history of misconduct. Nonetheless the factors which are identified as relevant are generally fair and reasonable, if repetitive. A matter of concern, however, is the use of categories (primary and other considerations) and the prescription that:

… no individual considerations can be more important than a primary consideration, but … a primary consideration cannot be conclusive in itself in deciding whether to exercise the discretion to refuse or to cancel a visa.

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. This is the situation with which Sackville J was concerned in Bustescu. 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 condition 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 circumstances any one factor may, at least theoretically, outweigh any other possibly relevant factor.”

Does Direction 17 impose a fetter on discretion?

35                  Mr Lloyd relied on two recent decisions of this Court, Aksu and Ruhl v Minister for Immigration and Multicultural Affairs [2001] FCA 648 (“Ruhl”), to support his submission that provisions of Direction 17 involve a fetter on the discretion of the decision-maker that is inconsistent with s 501. In Aksu and Ruhl, Dowsett J and Cooper J respectively held that the Minister had applied Direction 17 to his decision and had therefore made an error of law.

36                  The respondent submitted that both Ruhl and Aksu were wrongly decided for two reasons. First it is said that they are inconsistent with the previous decisions in Bustescu v Minister for Immigration and Multicultural Affairs (1999) 57 ALD 161 (“Bustescu”) and Lau v Minister for Immigration & Multicultural Affairs [2000] FCA 698 (Full Court). Secondly, they do not appear to take into account s 46(1)(b) of the Acts Interpretation Act 1901 (Cth) and the principle that, if possible, an instrument should be construed as being within power.

37                  The difficulty the respondent faces with his first argument is that the direction with which the Court was concerned in Bustescu related to ss 200 and 201 of the Act and was significantly different from Direction 17. The direction considered in Bustescu required the decision-maker to have “due regard to the importance placed by the government on the two primary considerations”. It continued, however, to state that the decision-maker should also, “adopt a balancing process which takes into account all relevant considerations”. Sackville J, in rejecting the applicant’s contention that this provision created an unlawful fetter on the Minister’s discretion, commented  at [40] that:

“If the direction were intended to have the rigid operation attributed to it by Mr Game, there would be little point in the express recognition in para 5 that the decision-maker should adopt a balancing process that takes into account all relevant considerations, not merely the two primary considerations.”

38                  Direction 17, however, specifically directs that “no individual considerations can be more important than a primary consideration.” Mr Smith denied that this aspect of the direction goes to the weight to be attributed to the evidence. He submitted that the sentence merely emphasises the importance placed by the government on primary considerations. For my part I cannot see how the statement that “no individual considerations can be more important than a primary consideration” can refer to anything other than weight. The heading to paragraph 2.2 , “Weight of considerations” tends to confirm this view as does the statement in the preamble that the Act enables the Minister “to give precise written directions on what weight is to be given” to the factors that a decision-maker must consider.

39                  In my respectful opinion, the decision of Sackville J in Bustescu is clearly correct. His Honour’s conclusion is buttressed both by s 46(1)(b) of the Acts Interpretation Act 1901 (Cth) and by the principle articulated by Griffith CJ in Widgee Shire Council v Bonney (1907) 4 CLR (Pt 2) 977 at 983. Section 46(1)(b) refers to the situation where an authority is given  power to make an instrument and provides:

“any instrument so made, granted or issued shall be read and construed subject to the Act under which it was made, granted or issued, and so as not to exceed the power of that authority, to the intent that where any such instrument would, but for this section, have been construed as being in excess of the power conferred upon that authority, it shall nevertheless be a valid instrument to the extent to which it is not in excess of that power.”

40                  In Widgee Shire Council v Bonney (supra), Chief Justice Griffith stated that:

“when a by-law is open to two constructions, on one of which it would be within the powers of the local authority, and on the other outside of these powers, the former construction should be adopted …”

The Chief Justice’s comment was quoted with approval by Gummow J in Airservices Australia v Canadian Airlines International Ltd (1999) 167 ALR 392 at [408].

41                  As indicated above, however, it is my view that the relevant statement in Direction 17 is not susceptible of two interpretations and therefore neither the above principle nor s 46(1)(b) apply here.  In my opinion both Aksu and Ruhl are correct in their interpretation of Direction 17.

42                  When coupled with the obligation imposed by s 499(2A) of the Act (see [10] above), the view that the provisions of Direction 17 are inconsistent with the unfettered exercise of discretion by a decision-maker creates a strong presumption that the decision-maker has made an error of law within s 476(1)(e). However this does not apply to a decision made by the Minister who, for reasons set out in [28] above, is not subject to s 499(2A). For the applicant to succeed it would be necessary to show, not merely that the Minister was guided by the policy expressed in Direction 17, but that in making his decision the Minister attributed weight to factors in accordance with Direction 17 without independent consideration.

Did the Minister fetter his discretion by reliance on Direction 17?

43                  A copy of Direction 17 was attached to the notice of intention to cancel the applicant’s visa (see [3] above) sent to the applicant.  That notice stated that in making his decision whether to cancel the applicant’s visa, the Minister would have regard to Direction 17 and urged the applicant to address each topic in the Direction “that you feel applies to you or is relevant to your circumstances”. It is clear from reviewing the Departmental brief that the officers who prepared it followed the provisions of Direction 17. The brief follows the format of the Direction and quotes from it. In Part E (see [4] above) there is an express statement signed by the Minister that he has considered the Direction.

44                  The respondent contends, and I have already accepted, that the Department’s brief to the Minister incorporates the Minister’s reasons for decision.  It is quite clear that the brief, and therefore the Minister, was guided by the policy in the Direction. The opening words of Part E (see [4] above) make that clear. In order to decide if the Minister fettered his own discretion, it is necessary to consider Part D of the brief, which deals with the Minister’s discretion, in some detail.

45                  The opening words of Part D are as follows:

“If you are satisfied that the non-citizen does not pass the character test you must consider the exercise of your discretion to decide whether the non-citizen should be permitted to remain in Australia.”

The brief then analyses the three primary considerations.  Under the heading, “Protection of the Australian Community”, the brief discusses the seriousness and nature of the applicant’s conduct, the likelihood that it may be repeated and the issue of general deterrence of other persons. In relation to the first issue it concludes:

 “ His conduct is serious and must weigh heavily against him”.

 In relation to the likely repetition of the conduct it states:

“… it is open for you to find that Mr Javillonar may repeat this type of conduct”. 

On the deterrence issue, the comment is:

“Given the nature and seriousness of the conduct it is open for you to conclude that this would have a deterrent effect on other non-citizens who were contemplating similar behaviour”

46                  Under the heading, “Expectations of the Australian Community”, the brief quotes paragraph 2.12 of Direction 17 concerning the Australian community’s expectation that non-citizens obey Australian law while in Australia. It then states:

“It is open for you to find that Mr Javillonar’s conduct is such that the community would expect that his visa would be cancelled.”

47                  The brief’s discussion of the best interests of the applicant’s children states in relation to his Australian daughters:

“It would therefore be in the best interests of Mr Javillonar’s daughters to have their father remain in Australia.”

It notes that his three sons born in the Philippines to his second wife have applied to come to Australia and that while overseas, the applicant had contact with them. No other evidence was presented concerning his relationship with his sons.

48                  Under the heading, “Other Considerations”, the brief refers to the strong network of social and employment contacts that the applicant has established in Australia and to his relationship with his daughters. It concludes that both the applicant and his first wife would suffer some hardship if his visa were to be cancelled.

49                  As can be seen, at no point does the brief refer to Direction 17 as binding on the Minister or assume that the Minister’s decision will necessarily be in accordance with it. In this way, it is different from the briefs considered by Dowsett J in Aksu and by Cooper J in Ruhl.The brief in Aksu, as quoted by Dowsett J at [29], stated that:

“In exercising your discretion you must consider the Minister’s Direction no 17 …The Direction is binding as to the weight to be accorded to certain matters and the considerations which should be included in your deliberations.”

The Aksu brief also stated that, although considerations other than the three primary considerations may be taken into account, it was the Government’s view that “they be given less individual weight than that given to the primary considerations.”  I respectfully agree with Dowsett J’s conclusion expressed at [34] as follows:

“The Minister’s adoption of the briefing paper implies his adoption of the ‘binding’ nature of the Direction as to weight. It was submitted that he should be take to have known that he could depart from the Direction should he so choose and to be aware of his own powers. However if that were so, and if he had turned his mind to the matter, one would think that he would have perceived the need to make it clear in his reasons that he did not consider himself to be so bound. He would not then have adopted the briefing paper. It is an inescapable conclusion of his adoption of it that he proceeded in accordance with it. This must inevitably have included acceptance of the allegedly ‘binding’ nature of the Direction. It follows that he has inappropriately fettered his discretion by assuming that each primary consideration bore at least as much weight as each other consideration, regardless of the facts of the case. In my view this fettering of the discretion constituted an error of law for the purposes of par 476(1)(e) of the Act.”

50                  In Ruhl, the opening statement of the section of the brief headed “DISCRETION” specifically stated that the Minister was not bound by Direction 17 but that it was a “useful guide”. However, it did refer to individual considerations being given less weight than primary considerations. Critically, under the headings of “Any other relevant considerations” and “Other matters raised by/on behalf of Mr Ruhl”, the brief stated in both cases that, “All matters raised have been addressed in line with the Direction”. The inescapable inference from that statement is not only that Direction 17 has been used as a guide but also that weight has been given to the various factors in accordance with Direction 17 without independent consideration. As Cooper J stated at [33]:

“the Minister voluntarily applied the provisions of Direction No 17 to the exercise of his discretion under s 501 of the Act when he adopted as his own the reasoning contained in the decision record; it is not a mere matter of surmise that he did so.”

51                  The differences, however, between the brief considered by the Minister in this case and those in Aksu and Ruhl are crucial. The present brief does not specify, either directly or indirectly, the relative weight to be attributed to the various factors it considers. Its adoption by the Minister as his reasons does not reveal the weight that he attributed to those factors. Nor is there any obligation on the Minister to provide that information. Section 25D of the Acts Interpretation Act 1901 (Cth) (set out in [9] above) imposes an obligation to  set out findings on material questions of fact and to refer to the evidence or other material on which those findings are based. It does impose any obligation to disclose the relative weight attributed to the factors under consideration.

52                  In summary, the problem with Direction 17 is that, contrary to s 499(2), it is inconsistent with the unfettered discretion given in s 501 because it purports to predetermine the relative weight to be given to various factors without the necessity of independent consideration of the relevant case. In the absence of any indication of the weight attributed to the factors relevant to Mr Javillonar’s case, I am unable to conclude that the Minister did not give the necessary independent consideration to the relevant factors and therefore the ground of review under s 467(1)(e) is not made out.

53                  For the above reasons the application is dismissed with costs.

Associate:

Dated:              6 July 2001