FEDERAL COURT OF AUSTRALIA

Shaw v Minister for Immigration & Multicultural Affairs [2004] FCA 1353

MIGRATION – visas – cancellation of transitional (permanent) visa under s 501(2) of the Migration Act 1958 (Cth) – where applicant did not pass the character test – operation and nature of the Minister’s discretion given by s 501(2) – whether the Minister unlawfully fettered his discretion under s 501 by applying Direction No 17 made under s 499 – whether the Minister unlawfully fettered his discretion under s 501 by adopting the reasoning set out in departmental briefing paper

Statutes

Migration Act 1958 (Cth) ss 501, 499, 476(1)(e), 476(1)(b), 476(1)(c), 501(2), 501G(1)(e), 501(6), 501(7), 501(7)(c), 501(6)(a), 501(1), 499(1), 501A

Cases

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

Awa v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 63 Refd

Jahnke v Minister for Immigration & Multicultural Affairs [2001] FCA 897 Cons

Madafferi v Minister for Immigration & Multicultural Affairs [2002] FCAFC 220 Cons, Appl

Minister For Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Cited

Minister for Immigration and Multicultural Affairs v W157/00A (2002) 125 FCR 433 Cons

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 Cited

Re Ruddock, Minister for Immigration and Multicultural Affairs; Ex parte Truong (2003) 202 ALR 305 Cited

Ruhl v Minister for Immigration and Multicultural Affairs (2001) 184 ALR 401 Cons, Dist

Shaw v Minister for Immigration and Multicultural Affairs (2003) 78 ALJR 203 Cited

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

SHAW V MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Q22 of 2004

KIEFEL J

BRISBANE

20 OCTOBER 2004

THE COURT ORDERS THAT:

1.         The applicant have leave to amend grounds 2 and 3.

2.         The applicant pay the respondent’s costs occasioned by the amendments.

3.         The application be dismissed.

4.         The applicant pay the respondent’s costs of the application.

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

REASONS FOR JUDGMENT

1                     The applicant is a citizen of the United Kingdom who was born on 27 December 1972.  He entered Australia with his family on 17 July 1974 on a Transitional (Permanent) visa.  On 17 July 2001 the respondent decided to cancel the applicant’s visa.

2                     An application for review of that decision was removed to the High Court on 9 October 2002, because it contained a constitutional issue.  The High Court subsequently determined (in Shaw v Minister for Immigration and Multicultural Affairs (2003) 78 ALJR 203;  [2003] HCA 72) that it was within the power given to Parliament by the Australian Constitution to make laws with respect to naturalisation and aliens which authorised the respondent to cancel the applicant’s visa.

3                     The applicant has two remaining grounds for review.  Their form was the subject of a further application to amend which was not opposed and should be granted.  As amended they are in the following terms:

‘2.        In making the decision to cancel the applicant’s visa, the respondent unlawfully fettered his discretion under s.501 of the Migration Act 1958 by applying Direction no.17 made under s.499 of the Migration Act 1958, and the fettering of the respondent’s discretion constituted an error of law for the purposes of s.476(1)(e) of that Act or alternatively a reviewable error under either or both paragraphs 1(b) and 1(c) of s.476 of the Act.

3.         In making the decision to cancel the applicant’s visa, the respondent further unlawfully fettered his discretion under s 501 of the Migration Act 1958 by adopting the reasoning set out in a briefing paper prepared for the respondent by a departmental officer in the Department of Immigration and Multicultural Affairs which gave pre-eminence of the “Primary Considerations” in Direction No. 17 and did not list or give any emphasis to the “Other Considerations” in Direction No. 17, and the fettering of the respondent’s discretion constituted an error of law for the purposes of s.476(1)(e) of that Act or alternatively a reviewable error under either or both paragraphs 1(b) and 1(c) of s.476 of the Act.’

4                     I shall not set out the particulars given for the grounds.

5                     On the hearing of the application the respondent raised another issue.  It was pointed out that, at the time this decision was made, it was the Minister’s practice to adopt the Decision Record as his reasons for cancellation of a visa pursuant to s 501(2) of the Migration Act 1958 (Cth).  It has been held that this practice does not comply with the requirements of s 501G(1)(e) of the Act, which requires that, when a decision under s 501(2) is made, the Minister must give a written notice that sets out the reasons for the decision:  Minister for Immigration and Multicultural Affairs v W157/00A (2002) 125 FCR 433.  In further submissions however the respondent drew attention to the ultimate decision of the Full Court in that case, which was that this non-compliance did not enliven the ground of review that ‘procedures that were required by this Act or the regulations to be observed in connection with the making of the decision were not observed’.  The procedure in question is not one connected with the making of the decision:  W157 at [56]-[63], [87] and [91]-[98]. The respondent did not further pursue this issue.

STATUTORY PROVISIONS and directions

6                     Section 501(2) provided:

‘(2)      The Minister may cancel a visa that has been granted to a person if:

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

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

7                     Subsection (6) relevantly provided that a person does not pass the character test if they have a substantial criminal record as defined by subsection (7).  Subsection (7)(c) provided that a person has such a record if they have been sentenced to a term of imprisonment of twelve months or more.

8                     Section 499 was, so far as is relevant,  in these terms: 

‘Minister may give directions

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

(a)       the performance of those functions; or

(b)       the exercise of those powers.

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

(2)       Subsection (1) does not empower the Minister to give directions that would be inconsistent with this Act or the regulations.

(2A)     A person or body must comply with a direction under subsection (1).

            …’

9                     Direction No. 17, which was issued under s 499 of the Act and was current at the time of the decision to cancel the applicant’s visa, identified considerations to which decision-makers should have regard when exercising the discretion as to whether a non-citizen ought to be permitted to remain in Australia (Part 2).  The Direction is no longer in force.  The ‘PRIMARY CONSIDERATIONS’ were:

‘(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.’

10                  In relation to the first primary consideration, the Direction identified three non-exclusive factors relevant to an assessment of the level of risk to the community of the continued stay of the non-citizen:  the seriousness and nature of the conduct;  the likelihood that the conduct may be repeated (including any risk of recidivism);  and whether visa refusal or  cancellation might deter similar conduct.  Each factor was then discussed in some detail.  The second primary consideration, the expectations of the Australian community, would appear to reiterate concerns about the risks referred to in the first consideration.  The best interests of the child, the third primary consideration, were generally identified as being served if the child remained with its parents.  Decision-makers were also to have regard to factors such as the nature and length of the relationship in question, the effect of separation, the educational and health facilities in a country to which the child may go with the non-citizen whose visa is cancelled and any cultural or language barriers which they may there encounter.

11                  ‘OTHER CONSIDERATIONS’ for the decision-maker were listed in par 2.17.  They included the claims of partners in genuine relationships to compassion and the degree of hardship which would be caused to immediate family members.  ‘OTHER INTERNATIONAL OBLIGATIONS’ might be taken into account under par 2.18.

12                  Two provisions in Part 2 of the Direction deal with the decision-maker’s approach to the different considerations.  They assume particular importance on the application:

‘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.’

13                  In relation to other considerations:

‘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 dependant 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 conditions 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 minister’s decision

14                  The applicant was a consistent offender in his youth.  He served his first term of imprisonment in 1990.  In August 1998 he was sentenced to two and one half years for his part in the cultivation of marijuana and two further terms of six months for associated offences, to be served concurrently.  In December 1998 he was sentenced to terms of two years, five years and six months for twenty-three indictable offences, sixty-eight other offences and one summary offence. These sentences had the effect of adding five years to the sentences he was then serving.

15                  The applicant’s criminal record was a substantial one, as defined by s 501(7).  He therefore did not pass the ‘character test’ under s 501(6)(a).  Section 501(2) nevertheless provided the Minister with a discretion whether to cancel the applicant’s visa.

16                  As commonly occurs in these cases, the respondent was provided with a briefing paper on the applicant’s case.  The respondent adopted what was contained in the paper as the reasons for his decision, as he was entitled to do.   The document was then referred to as ‘the Minister’s Decision Record’. It followed that he assigned to the various matters the weight identified in the document:  Re Ruddock, Minister for Immigration and Multicultural Affairs; Ex parte Truong (2003) 202 ALR 305.

17                  In the briefing note, the discretion in s 501(2) was referred to in the following terms: (at [5]):

‘If you are satisfied that Mr SHAW does not pass the character test you must consider the exercise of your discretion to decide whether Mr SHAW should be permitted to remain in Australia.  s.501 of the Migration Act 1958 provides you with a discretion to cancel a visa.  You have issued Directions under s.499 to guide delegates and the AAT in the exercise of that discretion.  It is clear from a number of decisions of the Federal Court that, when you decide a case personally, you are not bound by your s.499 Directions.  In making a decision on this case it is open to you to be guided by the factors set out in the Direction.  However, in balancing the relevant factors in this case, you are free to place whatever weight you regard as appropriate on those factors.’

18                  The briefing note to the respondent identified those aspects of the Direction relating to the nature of the offences and their seriousness and observed that the applicant’s offences were described as ‘very serious’ under the Direction.  Reference was made to the relevance of the extent of a person’s criminal record and the sentence imposed.  In the latter respect reference was made to sentencing remarks made on the occasion of the applicant’s sentencing for both the drug-related offences and the property offences.  In relation to the drug-related offences, it was observed that he had no previous convictions for such offences.  The judge however also made observations concerning the extent of the cultivation and the applicant’s ownership of a small part of it, from which he intended to profit.  When sentencing the applicant for the property-related offences on 16 December 1998, to a period of eight years, the judge observed that the offences were committed over a long period of time and involved property of considerable value.  The applicant had systematically, over that period of time, taken part in breaking into commercial premises and taking property for sale.  The judge however took into account the applicant’s pleas of guilty and co-operation with police.

19                  The respondent was then advised, in the briefing note, that it was open to him to find that the applicant’s conduct against the community was serious.  It went on:

‘[12]   Paragraph 2.8 of the Direction requires the decision maker to take into account additional factors including mitigating factors.

[13]    Mr Shaw has not put forward any factors by way of mitigation in his submission to the Department.’

20                  A copy of Mr Shaw’s submission was attached to the briefing note.

21                  The briefing note then turned to consider the possibility of re-offence, which included a report of a psychologist.  It concluded that it was open to the respondent to find that the applicant was at a medium to high risk of recidivism.  It was further pointed out that the cancellation of his visa might serve as a deterrent to others contemplating similar offences in both categories, drugs and property.  In relation to the second primary consideration it was said that the Australian community might expect the applicant to be removed from Australia, given the seriousness of the offences.

22                  Consideration was then given to the interests of the applicant’s two young children and to the effects of his separation from them and his defacto wife, a matter upon which the applicant had made submissions.  It was pointed out in the briefing note that the children might accompany him to the United Kingdom.  The applicant had not commented upon this.  The children might not be adversely affected by language, cultural or educational barriers.  Nevertheless the respondent was advised that he might find that the removal of the applicant from Australia may have a detrimental effect on the applicant’s children. 

23                  The briefing note then turned to ‘Other considerations’.  It explained:

‘[34] Paragraph 2.17 of the Minister’s Direction provides that other considerations may be taken into account by the decision-maker.  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.’

24                  Six ‘other considerations’ were identified.  They included the fact that the applicant had spent the majority of his formative years in Australia, his relationship with his defacto wife, that his immediate family reside in Australia and possible hardship.  No ‘other international obligations’ were identified.  Under ‘Any other relevant considerations’ it was said that ‘all matters raised have been addressed in line with the Direction.’  The same remark was made with respect to ‘other matters raised by/on behalf of Mr Shaw’.

25                  The respondent then chose the following from the four possible outcomes provided in the briefing paper:

(d)       I reasonably suspect Jason SHAW does not pass the character test and Jason SHAW has not satisfied me that he passes the character test AND I have decided TO EXERCISE MY DISCRETION UNDER SUBSECTION 501(2) OF THE ACT TO CANCEL THE VISA so I hereby cancel the visa’.

the applicant’s grounds

26                  The applicant’s grounds 2 and 3 overlap.  His primary argument is that the reasoning provided in the briefing paper, which the respondent adopted, involves an application of Direction No 17.  The application of the Direction has been regarded as a fetter upon the discretion given by s 501(2) and as constituting an error of law.  The limit upon the respondent’s discretion arises because the Direction requires a greater weight, or pre-eminence, to be given to primary considerations in every case.  Even though the briefing note contained advices that the Minister was not bound by the Direction and was free to give such weight to different factors as he chose, it was not substantially different from the advice in Ruhl v Minister for Immigration and Multicultural Affairs (2001) 184 ALR 401 (‘Ruhl’).  There Cooper J held the Direction nevertheless to have been applied and to have operated as a fetter upon the Minister’s discretion.

27                  The balance of the applicant’s contentions concern the ‘other considerations’ to which the Minister may have regard.  It was submitted that the failure to list in the briefing note all the ‘other considerations’ identified in the Direction gave greater emphasis to the pre-eminence accorded to the primary considerations.  This would not seem to me to take the applicant’s principal submission any further.  I also understood the applicant to submit that the failure to list all the ‘other considerations’ might itself amount to a reviewable error.  It would not however seem to me that it could be said that the Act obliged the Minister to take each of these other matters into account (Minister For Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24), assuming for present purposes that s 476(1)(c) extends to a failure to take into account a relevant consideration.

28                  Ruhl’s case, upon which the applicant relies, followed the decision of Dowsett J in Aksu v Minister for Immigration & Multicultural Affairs [2001] FCA 514 (‘Aksu’), that the application of Direction 17 was inconsistent with the intention contained in s 501(2) that the discretion be unfettered (at [28]).  The problem with the Direction, in his Honour’s view, was the use of categories and the prescription that ‘… no individual considerations can be more important than a primary consideration …’.  The effect, in his Honour’s view, was that in every case, considerations concerning the protection or expectations of the community must be treated as at least equally important as any non-primary consideration (at [22]).

29                  His Honour went on (at [23] - [24]):

‘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. 

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.’

30                  The question whether the primary considerations would be applied to the disadvantage of the non-citizen in every case was considered by Whitlam J in Turini v Minister for Immigration & Multicultural Affairs [2001] FCA 822 (‘Turini’).  His Honour expressed disagreement with the view in Aksu, that the primary considerations in the Direction are direct outcomes of a person failing to satisfy a decision-maker that they pass the character test.  His Honour went on (at [29]):

‘…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.’

31                  It followed, in his Honour’s view, that Direction No 17 was a valid direction under s 499(1) of the Act.

32                  Drummond J in Jahnke v Minister for Immigration & Multicultural Affairs [2001] FCA 897 agreed with Dowsett J in Aksu that par 2.2 of the Direction imposes an unlawful fetter because in no case can a non-primary consideration, telling against the cancellation of a non-citizen’s visa, be given more weight than the three primary considerations.  His Honour however did not agree with all the reasoning in Aksu and agreed with Whitlam J in Turini that the primary considerations are not necessarily ‘direct outcomes’ of a person failing to pass the character test.  A conclusion was not inevitable that there would be an unreasonable risk if the person remained.  A consideration of the first two primary considerations might favour non-cancellation.

33                  Accepting the reasoning in Turini as correct, it would follow that the application of the Direction in every case might not have the effect of limiting the range of discretion conferred by s 501(2) which would amount to a fetter upon the discretion:  Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 640-641.  Even accepting that most offences requiring a sentence of twelve months or more of imprisonment might be regarded as serious, it may nevertheless be shown that the non-citizen does not present a risk.  Where children are involved, a decision-maker might be persuaded that their best interests outweigh the risk to the community, though much might depend on the level of that risk.  It may further be observed that, whilst no one non-primary consideration can prevail over a primary consideration, this might not preclude a number of them having that effect.

34                  It may be therefore that the Direction will not operate to the extent predicted in Aksu.  However there remains the prospect of cases where a decision-maker determines that the non-citizen is at risk and that the community would expect their removal but where there are other relevant factors which might rationally militate against cancellation of the visa.  The effect of the weighting required by the Direction would require cancellation. 

35                  The effect of Direction No 17 was raised in Awa v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 63, but not decided, the Full Court holding that the Tribunal had in fact engaged in a balancing exercise.  It was again raised in Madafferi v Minister for Immigration & Multicultural Affairs [2002] FCAFC 220 (French, O’Loughlin and Whitlam JJ) (‘Madafferi’) in the context of the discretion given by s 501A of the Act to the Minister to set aside an original decision which had the effect of granting a visa or refusing to cancel it.  There the Minister prepared a statement of reasons in which it was said that he had proceeded to his decision in accordance with the government’s view on serious crimes, as set out in Direction No 17, and had had regard to the three primary considerations and other considerations.

36                  A different approach was taken in Madafferi to the previous decisions.  Their Honours considered ‘the language of the Direction and the range of factors it requires to be taken into account’ to be so broad as to be unlikely to fetter the discretion given (at [99]).  Moreover the Direction did not bind the Minister.  They acknowledged that decisions of this Court favoured the view that the vice in the Direction was that it codified the weight to be given to the three primary consideration, to the extent that no other consideration, such as the effect on the family unit, could ever prevail.  Clearly the Court did not agree.  The Court said (at [103]):

‘… The primary considerations are so broadly expressed as hardly to exclude the consideration of virtually all relevant factors. To the extent that matters personal to the applicant or other factors may be thought to have fallen outside the scope of these considerations, it is useful to return to the terms of par 2.17. In respect of matters other than “primary considerations” it is accepted that they may be relevant and 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”. The term “appropriate” does not preclude a different relative weighting being given to those matters. Nor does it preclude their combined weight from overcoming the primary considerations.’

37                  The Court held that the Minister’s discretion had not been shown to have been fettered by the use of the Direction and that he had engaged in a balancing exercise.

38                  It is plain enough that a Full Court has held that the application of the terms of Direction No 17 does not have the effect of fettering the exercise of a discretion whether to cancel a visa.  The reasoning applies with equal force to the discretion under s 501(2) and I am obliged to apply it.  I do however have some difficulty with the notion that there is no policy of weighting in pars 2.2 and 2.17 of the Direction or that the reference to it being ‘appropriate’ to take matters into account overcomes the requirements as to weighting.

39                  Assuming, for present purposes, that the Minister did apply the Direction it would follow that there was no error of law.  In particular it cannot be said that the decision was not authorised by the Act (s 476(1)(c)).  The application therefore fails.  For completeness however I shall deal with the additional question raised by the applicant’s contentions, namely whether the Minister in this case applied the Direction, in the way found in Ruhl.  The argument necessarily assumes that the application of the Direction may improperly limit the exercise of the discretion in the manner referred to in the earlier cases and to the contrary of Madafferi. 

40                  In Ruhl the briefing note to the Minister contained these references (at [9]):

‘… In exercising your discretion you should consider the guidelines of your  Direction No. 17… .  While you are not bound by the section 499 direction on character in relation to exercising your discretion, it is a useful guide for the matters that you should consider and contains three primary considerations and a number of other relevant considerations that need to be addressed.’

41                  Under ‘Other Considerations’ the memorandum advised (at [11] in Ruhl):

‘[34] Paragraph 2.17 of the Minister’s Direction provides that other considerations may be taken into account by the decision-maker.  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.’

42                  Cooper J in Ruhl held that although there were some differences in the terms of the briefing note in the Aksu case, and although the Minister was advised that he was not bound to apply the Direction, nevertheless he had in fact done so.

43                  In Ruhl, it seems to me, there was no doubt but that particular weight had to be given to primary considerations.  In the present case it was made plain that the respondent was not bound by the Direction.  Further, whilst par 2.17 was later referred to in the briefing note, the respondent was aware that he was free to place such weight on the factors referred to in the Direction as he considered appropriate.  Those factors included both primary and other considerations.  There is nothing in the reasoning which follows in the briefing note, as to the various factors, which suggests that primary considerations were accorded greater weight, either as between themselves or over the other considerations identified as relevant.  It does not therefore seem possible to conclude that the Minister’s discretion was affected by any policy of weighting contained in the Direction.

44                  The application will be dismissed with costs.

Associate:

Dated:              20 October 2004