FEDERAL COURT OF AUSTRALIA

Basile v Minister for Immigration and Citizenship [2011] FCA 237

THE COURT ORDERS THAT:

1.    The application be dismissed with costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

1    Mr Mario Giuseppe Basile was born in Italy. He met his future wife (an Australian citizen) in 1988 in his home country. They were married in 1990. Mr and Mrs Basile and their new-born daughter came to Australia in 1991. In 1994 Mr Basile was convicted of some minor criminal offences. Over the next decade he was convicted of committing a series of increasingly serious offences. His depredations culminated with his conviction, in 2005, for the manslaughter of another man in 2003. He was sentenced to nine years imprisonment.

2    Whilst Mr Basile was in prison a delegate of the Minister cancelled Mr Basile’s Class BF Transitional (Permanent) Visa.

3    Mr Basile sought review of this decision by the Administrative Appeals Tribunal (“the Tribunal”). The Tribunal affirmed the Minister’s decision: see Basile v Minister for Immigration and Citizenship [2010] AATA 556.

THE NOTICE OF APPEAL

4    The proceeding was commenced by notice of appeal, given under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”). That notice was subsequently amended.

5    In the course of argument counsel for both parties noted and accepted that an appeal could not be brought against the Tribunal’s decision pursuant to s 44 of the AAT Act. This was because of the provisions of ss 474(2) and 483 of the Migration Act 1958 (Cth) (“the Act”).

6    Counsel for Mr Basile sought leave to substitute an application for judicial review of the Tribunal’s decision under s 39B of the Judiciary Act 1903 (Cth). The application was not opposed by the Minister. Leave was granted.

GROUNDS OF REVIEW

7    Mr Basile relied on three broad grounds in support of his application. The first bracket of alleged errors were grouped under the heading “Improper exercise of power” and involved allegations that the Tribunal had had regard to irrelevant considerations and had failed to take into account considerations to which a Direction, given by the Minister, required it to have regard.

8    The second group of errors were collected under the heading “Error of law”. Under this head it was alleged that the Tribunal had erred:

    By misinterpreting the phrase “take into account” as meaning “pay attention to”;

    By failing to apply what was described as “a two-step test” when applying the Direction;

    By failing first to consider the “primary consideration” of the “best interests of the child” before weighing those interests against the other “primary considerations”; and

    By failing to give “the best interests of the child” equal consideration to the “protection of the Australian community”.

9    The third ground was a “failure to enquire” ground which alleged that the Tribunal had found that Mr Basile had low prospects of rehabilitation without considering, or enquiring after, evidence or other material to support a contrary conclusion.

RELEVANT LEGISLATION

10    Section 501(2) of the Act confers a discretionary power on the Minister to cancel a visa, granted to a person, if the Minister reasonably suspects that the person does not pass what is described as “the character test”. The “character test” is prescribed by s 501(6) in terms which applied to Mr Basile. The Minister’s power to cancel a visa may be delegated to officers of his Department: s 496. A person who is aggrieved by a cancellation decision may appeal to the Tribunal: s 500(1). When dealing with such appeals the Tribunal has the same powers as the original decision-maker.

11    By s 499 of the Act the Minister is empowered to give directions which are binding on persons or bodies (such as the Tribunal) which exercise power under the Act. Relevantly, s 499 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)    …

(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)    …

(4)    …”

12    The Minister gave directions under s 499 in respect of the exercise of powers under s 501 of the Migration Act. They are identified as Direction [No 41] which was entitled “Visa refusal and cancellation under s 501”. (“the Direction”).

13    Part 2 of the Direction is entitled “Directions”. It begins by outlining the two stage process of decision-making under s 501 of the Migration Act. Part A is concerned with applying the character test. That Part is not of present relevance. Part B deals with the exercise of the discretion to cancel a visa. This Part commences with the following explanation:

“Part B provides directions on the primary and other considerations that are relevant to determining whether it is appropriate in the specific circumstances of the case to exercise the discretion to refuse to grant or cancel the visa. Decision-makers should note that a number of the primary and other considerations may not be relevant to a decision under certain circumstances. In the case of a visa applicant who is outside Australia (offshore) the primary consideration relating to length of residence in Australia may not be relevant.”

14    Subclause 9(1) requires decision-makers to “take into account the primary considerations in every case.” These “primary considerations” are identified in clause 10. Subclause 9(1) continues: “The other considerations (defined in paragraph 11) should be taken into account where relevant.” This requirement is qualified in subclause 9(2) which provides that decision-makers “should only take into account directly relevant considerations”.

15    Four primary considerations are identified in subclause 10(1). Later subclauses of clause 10 require that, when consideration is being given to each of the four primary considerations, various other factors are to be considered. Thus, for example, one of the primary considerations identified in subclause 10(1) is “relevant international obligations, including but not limited to … the best interests of the child, as described in the Convention on the Rights of the Child …” Thereafter subclause 10.4(1) stipulates that “if there is a child in Australia who is potentially affected by a visa refusal or cancellation decision, decision-makers must have regard to the best interests of the child.” (Emphasis added). Subclause 10.4.1 provides that:

“(1)    This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to refuse to grant or cancel a visa is expected to be made.

(2)    The best interests of any child who is 18 years or older is not a primary consideration but may be considered with other considerations under paragraph 11 of this Direction.

(3)    If there are two or more relevant children, it is not to be assumed that the interests of each child will coincide. It may be that the best interests of one child may indicate that the person should not be refused a visa or have their visa cancelled and be removed from Australia, whereas the best interests of another child may not be adversely affected by visa refusal or cancellation and removal. The best interests of each child should therefore be given individual consideration.”

16    Subclause 10.4.1(5) prescribes 15 factors which “are to be considered” when the decision-maker is “considering the best interests of the child.” (Emphasis added). They include:

“(d)    the child’s age;

…

(h)    the impact of the persons prior conduct and whether that conduct has, or has had, a negative or positive impact on the child;

…

(j)    any Court orders relating to parental access and care arrangements;

…”

17    Clause 11 identifies a range of additional considerations, including a person’s age and whether he or she is living under the care and control of a parental or care figure. Considerations referred to in Clause 11 “must be taken into account but, generally, … should be given less weight than that given to primary considerations”: see Clause 11(2).

THE TRIBUNAL’S DECISION

18    The Tribunal gave extensive reasons for its decision. It commenced by recording the evidence which was placed before it. This evidence was largely uncontentious. It included a finding that Mr Basile’s son Michael had been born on 24 April 1994. The Tribunal then set out the relevant legislation before turning to issues of statutory construction and giving consideration to the matters to which the Direction required it to have regard.

19    Because of the detail in which some of the grounds of review were argued it will shortly be necessary to set out some lengthy extracts from parts of the Tribunal’s reasons relating to statutory construction and to its consideration of the best interests of Mr Basile’s children.

20    The passages in the Tribunal’s reasons on which the error of law grounds are founded contain an explanation of its approach to the construction of part of the Direction. The Tribunal said:

“113.        Under the Direction, decision-makers must take into account primary considerations in every case. Other considerations, which are identified in [11], should be taken into account where relevant. I will summarise the primary and other considerations when I take each into account. For the moment, I want to consider what is meant by the requirement that I “take into account” those considerations. Does it mean that I weigh each one and decide whether it favours cancellation or not, assign additional weight to each of the primary considerations and then treat the exercise as an arithmetical calculation in order to determine whether the considerations weighing in favour of cancellation of the visa outweigh the considerations against cancellation or vice versa? I do not think that it is an arithmetical calculation of this sort.

114.        I will begin with the expression “take into account”. As the Direction is a Legislative Instrument for the purposes of the Legislative Instruments Act 2003 (LI Act) and there is no contrary intention in the Direction or in the Migration Act under which it is made, I must construe it as if it were an Act of Parliament. That follows from the fact that Parliament has provided that the Acts Interpretation Act 1901 “applies to any legislative instrument so made as if it were an Act and as if each provision of the legislative instrument were a section of an Act”.

115.        The expression “take into account” is not an expression defined in the dictionary but closely related expressions are. The ordinary meaning of the expression “take something into account or take account of something [is] to make allowances for or consider (a problem, opinion or other factor) when making a decision or assessment. …”. These meanings do not suggest an arithmetical approach but rather one of thinking about a matter as part of a process of coming to a conclusion about another. The difference between the two was explained by Lord Hewart CJ in Metropolitan Water Board v St Marylebone Assessment Committee when considering whether, in assessing a poor rate, the respondent could take into account the funds the Metropolitan Water Board (MWB) had raised by issuing precepts to the City and boroughs in order to meet a deficiency in the water fund. The MWB had issued the precepts when it found it had a deficiency in its funds after it deducted its rental payments from the revenue it had received for the year in question. In deciding that it was the arithmetical approach that had to be adopted, Lord Hewart CJ distinguished the two meanings of “take into account”:

“… It is quite evident that confusion has arisen in the past between the ambiguous meanings of the word ‘account.’ ‘To take into account’ in the sense of including figures in a mathematical calculation is one thing; ‘to take into account’ in the sense of paying attention to a matter in the course of an intellectual process is quite another thing. …

116.        It seems to me that it is in the sense of “paying attention to a matter in the course of an intellectual process” that the expression “take into account” is used in the Direction. While it is a document that requires certain things of a decision-maker, it is not a document that takes a formulaic approach. It is a document that recognises that the circumstances in which people find themselves are so diverse that certain considerations that might be relevant in most cases are not relevant in a particular case. It gives the decision-maker the flexibility to put those considerations aside where they are not relevant. This is recognised by the Minister in his Direction when he expressly recognises that even primary considerations may not be relevant in a particular case. The general description of Part B of the Direction shows this recognition:

“Part B … provides directions on the primary and other considerations that are relevant to determining whether it is appropriate in the specific circumstances of the case to exercise the discretion to refuse to grant or cancel the visa. Decision-makers should note that a number of the primary and other considerations may not be relevant to a decision under certain circumstances. In the case of a visa applicant who is outside Australia (offshore), the primary consideration relating to length of residence in Australia may not be relevant.”

It is also shown in [9] when it repeats the decision-maker’s task:

“(1)    Consistent with Part 2, paragraph 2 (Part B) of this Direction, decision-makers must take into account the primary considerations in every case. The other considerations (defined in paragraph 11) should be taken into account where relevant.

Note:    The primary considerations are set out in paragraph 10 of this Direction. The other considerations are set out in paragraph 11.

(2)    Decision-makers should only take into account directly relevant considerations.

Note:    For example, when considering a possible refusal where the person is offshore, the decision-maker may only need to take into account some of the primary considerations.”

117.        It could be thought that there is an inconsistency between a Direction that requires decision-makers “to take into account the primary considerations in every case” and the second Note that in [9] that the decision-maker may only need to take into account “some of the primary considerations”. I do not think that there is an inconsistency when the expression “take into account” is understood in its broader sense. Attention must be paid to all of the considerations but, once it is decided that a primary consideration is irrelevant in the circumstances of the case, the decision-maker has completed the task in so far as that consideration is concerned.

118.        Finally, the statement at [11(2)] that the “Other considerations” “… must be taken into account but, generally, they should be given less weight than that given to primary considerations” supports my understanding of the expression “take into account”. The use of the word “generally” indicates recognition that there may be cases in which the particular circumstances require that the other considerations be given more weight than the primary considerations. The reference to their being given “less weight” also signifies that the approach is not arithmetical. The word “weight” in this context means the “… influence …” that the considerations may have in reaching the decision. Generally, the primary considerations are to have more influence than the other considerations. Weight in that sense is not something that can be accorded a score.

(Footnotes have been omitted).

21    The Tribunal was mindful that, under the Direction, a primary consideration which it was bound to take into account was “the best interests of the child”. Mr Basile had two children, a daughter Tamara, and a son Michael. At the time at which the Tribunal made its decision Tamara was aged 20 and Michael 16. The Tribunal acknowledged that “the best interests of the child” was a primary consideration only in respect of children under the age of 18 years. The interests of older children were, however, also relevant as “other” considerations.

22    When considering the best interests of Michael and Tamara the Tribunal compared and contrasted their individual circumstances and their attitudes to Mr Basile’s conduct.

23    The passages of the Tribunal’s reasons on which three of the four “improper exercise of power” grounds are based read:

International obligations

“152.        The only international obligation that is relevant in this case is that under the Convention on the Rights of the Child. It applies because Michael is under 18 years of age. The Minister’s Direction states that “Under Australian law, it is generally presumed that a child’s best interests will be served if the child remains with its parents” but factors in a particular case may indicate that a child’s best interests are best served by separation. The Minister has set out fifteen factors to be considered in considering the best interests of a child.

153.        In this case, Michael is the child but I will begin with Tamara who is 20 years of age but very much a part of Michael’s life even though they are currently engaged in sibling rivalry. Both are Australian citizens who have spent their whole life in Australia. Tamara has seen herself as responsible for Michael through the years of his childhood. She sees herself as caring for him and for protecting him from trouble. As he has grown older, Tamara is finding that the task of doing so is beyond her emotional endurance. She wants someone to help her to care for him and to tell him what he should do. Michael does not appreciate Tamara’s care however well intended it is for, at this stage, he wants to do his own thing. Tamara, too, is wanting to leave behind her the cares she feels that she has had to carry for most of her life. She wants to be cared for by her boyfriend, Ben, and to do what she wants to do.

154.        Just what part the children’s mother plays in their lives is hard to gauge. I have Tamara’s view of her mother and I have Michael’s. They are quite different and the difference lies, from Michael’s point of view, in the presence or otherwise of his sister in his mother’s home and their relationship. Her presence changes the “atmosphere” with his mother. He is happier in his grandparents’ house even though his sister also uses that house as her base. How the children’s mother, Tatiana, views her relationship with her children is something that has not been revealed to me. Had she been called to give evidence, she might have thrown a different light on that matter. The letter that she wrote to the Department on 24 March 2010 and annexed to Michael’s statement suggests that she would have. She speaks of having spoken with her children and expresses her support for their wish to attempt to re-establish a relationship with their father and that he remain in Australia.

155.        I heard from the children’s grandmother, Mrs Jamett, and I find that she has played a big part in their lives. The children live with her and their grandfather at the moment and have lived with them in the past together with their mother. They have used their house as a place to go after school as it is well located and, since 2005, have taken telephone calls from their father there. The children both have a relationship with their grandparents that enables them to feel free to do this. Both feel comfortable enough in the relationship to leave their grandparents’ home and return to it as they wish. Just how long this will continue is uncertain for Mrs Jamett is tiring of the caring role and finds it difficult to manage her husband’s attitudes to her relationships with her family, including Michael, and her friends.

156.        Both Tamara and Michael saw their father after their parents’ separation but, initially at least, it was in very emotionally charged circumstances. They enjoyed the longer periods of access and Tamara in particular, as she was older, has very happy memories of those visits and of their outings. Between 2001 and 2005, Mr Basile did not see his children. His absence from their lives dates from some time before his imprisonment in January 2001. It continued after his interview with the Department on 13 February 2002 as he understood that he had to keep away from his wife so that his visa was not cancelled. He was not asked why he had not tried to get access under the Family Court orders but the fact remains that there was no contact between him and the children between 2001 and 2005. The children did not know where he was or what he was doing.

157.        Both Tamara and Michael are looking for a relationship with their father. Tamara is looking for the relationship that she and her father enjoyed when she was a child before her parents’ separation. Neither of them appears to make allowances for the passage of time and for the changes that life’s experiences bring to individuals and their relationships. Tamara is no longer a child but a young woman who clearly has a mind of her own. Michael, as demonstrated by his taking himself away from his family for a month and refusing to have any contact with them or to reveal his whereabouts to them, is also developing a mind of his own. That is not a bad thing but relationships become dysfunctional when all participants are intent on doing their own thing without regard to the impact of their words and actions on others. The relationships in the Basile family appear, on the evidence I have been given, to have many features of dysfunctionality.

158.        Michael has a dream of what he wants in and from a relationship with his father but he is more realistic than his sister. Tamara sees herself and her brother living together happily from the start. Michael wants to be with his father and yet he instinctively realises that his father needs to sort out his own life or, as Michael puts it, to be “solid” in the sense of being settled with an income.

159.        The upshot is that the relationship between Mr Basile and his children has yet to be tested. It is developing but, to date and by dint of circumstances, has been developing largely by means of the telephone. Until Mr Basile’s placement in immigration detention, personal contact was much more occasional because of the distances between Melbourne and the prison in which he was placed. Just what role Mr Basile will play in Michael’s life up to his eighteenth birthday or beyond is unknown. I accept that Mr Basile expresses the wish that he have a role in their lives, just as they want him to, but his criminal record and his previous statement in 2002 to Mr James to the same effect, suggest that Mr Basile becomes distracted by activities other than his children.

160.        Having listened to both Tamara and Michael and to Mr Basile, it is clear to me that he has never told them about the reason why he has been imprisoned. Not only has he not told them, he has been dishonest with Tamara when he told her that he had been convicted of manslaughter because he had a record and he looked like a person who would commit that crime; he “looked the part”. I find he was dishonest because his statement to his daughter is completely at odds with his having pleaded guilty to the offence of manslaughter. His children believe that their father is a good man and that is the way children should view their father but a relationship based on falsities and half truths designed to paint their father in the best light is not a relationship based on a sound footing. Lies have a habit of being found out as do protestations of good intention that are acted upon. Mr Basile is attempting to build his relationship with his children on the former and must act upon his protestations of good intention if he is not to leave them in the position they felt between 2001 and 205 (sic) when they did not know where he was.

161.        Tamara and Michael both speak Spanish but, while they understand Italian, they do not speak that language. They should not face major difficulty in learning to speak Italian given that they already speak two languages. There is no suggestion that they would move to Italy should their father’s visa be cancelled but language would only be a short term barrier for them if they chose to travel to that country.

162.        If Mr Basile were deported, he and his children would be denied the opportunity to spend time together in settings outside prison or detention and to decide whether they want to spend that time and whether the relationship of father and children can be restored. They would not be denied the opportunity to maintain telephone contact and, apart from a handful of personal visits during the year, they could continue to develop their relationship. Michael gave evidence that a telephone call for an hour would cost $100. A person can choose to pay a lot of money for an international call of that length or can choose to use a phone card and make it for a couple of dollars. The cost of the call is irrelevant in my consideration.

…

167.        In considering the evidence and the primary and other considerations, I must also have regard to the objectives that are relevant in deciding whether or not to exercise the discretion under s 501 to cancel Mr Basile’s visa. At the heart of the objective is the wish to protect the Australian community from unacceptable risks of harm as a result of criminal activity. This is (sic) objective is reflected in the first primary consideration identified in [10] and developed in [10.1] of the Direction. It is a primary consideration that has no greater weight than any other primary consideration including the best interests of any child under the age of 18 years.

168.        Having regard to all of the considerations, I have decided that Mr Basile’s visa should be cancelled. The risk to the Australian community that he will reoffend is unacceptable in view of the findings I have made about his failing to address the reasons for his offending behaviour. His offences showed a disregard for the property of others and, of far greater concern, a disregard of and for the safety of others. He has shown no remorse for what he has done. I realise that my decision will be a blow to his children but I do not think that it has to put an end to their relationship. It will make it more difficult in that they will not have physical contact very often but a long distance relationship will enable them to build on the embryonic relationship they now have. They are not young children and both are old enough to make the choice whether the extra effort that will be involved is what they want to do. Mr Basile too will have to make extra effort and build up their trust. He does not have any other firmly based relationships in Australia and, apart from his children, his position in Italy will be little different from his position in Australia. In both instances, he has to start again. “

THE “ERROR OF LAW” GROUNDS

24    It will be convenient, first, to deal with these alleged errors.

25    The first ground, advanced by Mr Basile, was that the Tribunal had equated the meaning of the phrases “take into account” and “pay attention to”. Clause 9.1 of the Direction required the Tribunal to take certain considerations “into account”. This, he contended, was a more onerous obligation than a requirement that it “pay attention” to particular matters.

26    The error was said to be disclosed by things said in paragraph [116] of the Tribunal’s reasons. It was submitted that the approach which the Tribunal had adopted, whilst consistent with English authority of some antiquity, could not be reconciled with contemporary Australian case law.

27    The English authority to which the Tribunal referred was Metropolitan Water Board v St Marylebone Assessment Committee [1923] 1 KB 86. In that case Lord Hewart CJ had drawn attention to two different meanings which had been attributed to the phrase “take into account”. In a passage, quoted by the Tribunal at [115], his Lordship said that:

“It is quite evident that confusion has arisen in the past between the ambiguous meanings of the word ‘account’. ‘To take into account’ in the sense of including figures in a mathematical calculation is one thing; ‘to take into account’ in the sense of paying attention to a matter in the course of an intellectual process is quite another thing …” (at 99).

28    Counsel for Mr Basile sought to contrast the sense in which the phrase “taken into account” was used by Lord Hewart CJ with the sense in which it is currently employed in Australian administrative law. He referred to the authorities, collected by Rares J in Telstra Corporation Limited v Australian Competition and Consumer Commission [2008] FCA 1758 at [105]-[107]. His Honour there said:

“[105]    I am of opinion that when s 152CR(1)(d) required the Commission, in making a final determination, to take into account Telstra’s direct costs of providing access to the ULLS in the manner the Commission proposed, it was required to take that matter into account, together with the other matters referred to in the section, and to give weight to them as a fundamental element in making its decision: The Queen v Toohey; Ex parte Meneling Station Pty Limited (1982) 158 CLR 327 at 333 per Gibbs CJ applying what Mason J had said in Sean Investments 180 CLR at 329 to a section requiring a decision-maker to take a variety of matters into account. Mason J said that the requirement to have regard to a matter meant that it would become a central element for the decision-maker in his considerations: Meneling Station 158 CLR at 338. And, as he later explained in his classic judgment in Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24 at 41, in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker and not the Court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising a statutory power. Mason J said that the Court could set aside an administrative decision which had failed to give adequate weight to a relevant factor of great importance, or had given excessive weight to a relevant factor of no great importance, but the preferred ground on which that power was to be exercised was that the decision was “manifestly unreasonable”. A person entrusted with a discretion must call his own attention to the matters which he is bound to consider: Peko-Wallsend 162 CLR at 39 per Mason J applying Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223 at 228 per Lord Greene MR.

[106]    A decision-maker must give proper, genuine and realistic consideration to the merits of the case:  Khan v Minister for Immigration and Ethnic Affairs  (1987) 14 ALD 291 at 292 per Gummow J;  Zhang v Canterbury City Council (2001) 51 NSWLR 589 at 601 [62] where Spigelman CJ collected the authorities;  Minister for Immigration and Multicultural Affairs  v Yusuf (2001) 206 CLR 323 at 367 [138] per Kirby J;  NAJT v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 51 at 92-93 [212] per Madgwick J, 96 [229] per Conti J;  SZEJF v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 724 at [39], [60] where I applied this principle. In Tickner v Chapman (1995) 57 FCR 451 at 462C-D, Black CJ said that where a decision-maker was required to consider material, the process of consideration “… involves an active intellectual process” directed at the nominated subject-matter: see too per Burchett J at 476F-477E, per Kiefel J at 495F-G and Tobacco Institute of Australia v National Health & Medical Research Council (1996) 71 FCR 265 at 277G per Finn J; Australian Retailers Association 148 FCR at 577 [526] per Weinberg J.

[107]    Where a decision-maker must consider matters prescribed by law, generally, he or she cannot jettison or ignore some of those factors or give them cursory consideration only in order to put them to one side: East Australian Pipeline Pty Ltd v Australian Competition and Consumer Commission (2007) 233 CLR 229 at 244 [52] per Gleeson CJ, Heydon and Crennan JJ. As Gummow and Hayne JJ, in concurring observed (East Australian Pipeline 233 CLR at 256 [102]):

‘It was not enough for the ACCC to say in its final determination that it had considered those matters in the sense of having looked at but discarded them.’ ”

29    Counsel also referred to the dictum of Madgwick J in NAJT v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 51 at 92-3 that: “a decision-maker cannot be said to ‘have regard’ to all of the information to hand, when he or she is under a statutory obligation to do so, without at least really and genuinely giving it consideration.” Reference was also made to the decision of Einfeld J in Mendoza v Minister for Immigration, Local Government and Ethnic Affairs (1991) 31 FCR 405 at 420 where his Honour said that “all relevant matters must be taken into consideration in a real and conscientious way.”

30    As I understood his argument, Mr Basile contended that a decision-maker must take into account relevant considerations in “a real and genuine way” or “as part of an active intellectual process” and that these obligations are not satisfied merely by “paying attention” to such considerations. Furthermore, a reviewing Court must be satisfied that the decision-maker has done more than merely assert that he or she has taken into account relevant considerations.

31    I do not consider that the Tribunal committed the error which has been attributed to it.

32    The Direction required the Tribunal to give consideration to a multitude of matters when determining where the best interests of children lay. In any such exercise it is likely that there will be factors that would suggest that it was desirable that personal contact between child and applicant in Australia would be of benefit to the child. Other considerations might point to a contrary conclusion. Yet others may be neutral. They must all be brought into account and given such weight as the decision-maker considers appropriate. Once the Tribunal has formed a judgment as to how best the interests of children may be served, it is required to balance that consideration against other applicable primary considerations when coming to an ultimate decision.

33    What the Tribunal was concerned to do in the part of its reasons which are quoted above at [20] was to disabuse the notion that some “formulaic approach” should be employed under which the number of matters pointing to a particular conclusion should be added up and then compared with the number of factors pointing to the opposite conclusion leading to a determination based on the higher of the two figures. So much is clear from the Tribunal’s observations, at [118], that the proper approach “is not arithmetical” and that weight “is not something that can be accorded a score.”

34    What the Tribunal was not doing was expressing a view about the level or quality of scrutiny demanded by the “taking into account” requirement.

35    When the Tribunal came, in the passages quoted above at [23], to perform the task required of it by the Direction it did what it was supposed to do, namely, to give proper, genuine and realistic consideration to the merits of Mr Basile’s case. In doing so it engaged in the “active intellectual process” to which Black CJ referred in Tickner v Chapman (1995) 57 FCR 451 at 462.

36    The second error of law which was relied on by Mr Basile was the alleged failure of the Tribunal to apply a two step test when considering factors prescribed by the Direction.

37    He contended that paragraph 9 of the Direction required a decision-maker first to exclude any irrelevant “primary considerations” and then to weigh each of the remaining primary considerations “to determine whether the primary considerations against cancelling the visa outweighed the considerations in favour of cancellation or vice versa.” Shortly put, the first step was to determine relevance and the second was to weigh.

38    Counsel was unable to point to any textual support for the contention that the Direction required separate and sequential consideration of these steps. Nor was he able to demonstrate, by reference to the Tribunal’s reasons, that any conflation of the steps had a material effect on the outcome of Mr Basile’s application. He was unable to identify any relevant consideration which was supported by probative evidence which had been ignored by the Tribunal.

39    It is clear from the Tribunal’s reasons (at [117]-[118]) that the Tribunal was well aware that it had to determine, in the circumstances of the particular case, whether or not each of the matters to which it was required to have regard was relevant. If a negative conclusion was reached it had “completed [its] task” insofar as that consideration was concerned. The remaining considerations were then accorded such weight at the Tribunal thought appropriate.

40    The third and fourth “error of law” grounds are related. The third ground was that the Tribunal failed first to consider the primary consideration of the best interests of the child before weighing those interests against the other primary considerations. The fourth was that it failed to give the “best interests of the child” equal consideration to the “protection of the Australian community”.

41    The starting point for these submissions was that the common law placed the best interests of the child ahead of the other three primary considerations referred to in the Direction. This proposition was said to be supported by the decision of the High Court in Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273. The Tribunal had, it was contended, not accorded this consideration the priority which it should have been accorded. On the contrary, the Tribunal had accepted that there was a hierarchy of primary considerations with the protection of the community ranked ahead of the other three.

42    Reliance was placed on the dictum of the Full Court of this Court in Wan v Minister for Immigration and Multicultural Affairs [2001] FCA 568 at [32] that the decision-maker “was required to identify what the best interests of Mr Wan’s children required with respect to the exercise of its discretion and then to assess whether the strength of any other consideration, or the cumulative effect of other considerations, outweighed the consideration of the best interests of the children understood as a primary consideration.” (Emphasis added).

43    It was submitted that these errors could be detected from what the Tribunal had said in paragraphs [167] and [168] of its reasons (above at [23]). Attention was directed to the statement that: “At the heart of the objective is the wish to protect the Australian community from unacceptable risks of harm as a result of criminal activity” and to the emphasis given, by the Tribunal, to what it regarded as the unacceptable risk, posed to the Australian community, of recidivism on the part of Mr Basile.

44    It is first to be observed that the reference, in paragraph [167], to “the objective” is a reference to the objective of safeguarding the Australian community from unacceptable risks of harm which is to be found in subclause 5.1(2) of the Direction. It is not a reference to the first of the four primary considerations which is to be found in sub-clause 10(1)(a). Next, it is to be noted that the Direction contains no requirement that a decision-maker is bound to consider the best interests of the child before it identifies and weighs other relevant primary considerations.

45    Mr Basile’s submission ignores the final sentence of paragraph [167] in which the Tribunal makes it clear that the first of the primary considerations, namely “the protection of the Australian community from serious criminal or other harmful conduct, particularly crimes involving violence” had “no greater weight from any other primary consideration including the best interests of any child under the age of 18 years.” In the following paragraph the Tribunal weighed the risk of recidivism against the best interests of Mr Basile’s children and, on balance, determined that the interests of Mr Basile’s children in him remaining in Australia were outweighed by the need to protect the community. It did not fail to treat these two considerations as being primary considerations. It simply determined that, on the evidence, one was to be accorded greater weight than the other.

46    Teoh does not require that the best interests of Mr Basile’s children must be given temporal primacy over the other three primary considerations which are identified in the Direction. The case stands for the proposition that, by ratifying the United Nations Convention on the Rights of the Child, the Australian government has represented that it will act conformably with the terms of the Convention. One of its Articles provided that, in all actions concerning children, administrative authorities of the State would ensure that “the best interests of the child shall be a primary consideration” (emphasis added). Although the Convention had not become part of domestic law, its ratification gave rise to a legitimate expectation that administrative decision-makers would comply with it and would not fail to do so without first affording an affected person the opportunity to argue that the decision-maker should treat the interests of a child as a primary consideration. It was not held that an Australian administrative decision-maker must always accord primacy to the interests of any relevant child much less that such a consideration must be brought into account before any other considerations are selected and weighed by the decision-maker.

47    Following the decision in Teoh the Migration Act was amended so as to enable the Minister to give Directions, of the kind presently under consideration, to guide decision-making under provisions of the Act including s 501. Direction 17 was an earlier version of Direction 41. It prescribed three primary considerations, one of which was “the best interests of the child or children.” In this way the requirements of the Treaty were introduced into domestic immigration law. Direction 17 was in force when Wan was decided but it did not apply to the administrative decision-making process in that case. It is also to be noted that the Full Court found that the Tribunal had erred by failing to treat the best interests of Mr Wan’s children as a primary consideration in making its determination and had not given Mr Wan notice of its intention not to do so. Procedural fairness demanded that the Tribunal “act on the basis that the best interests of Mr Wan’s children were a consideration of equal significance (i.e. also a primary consideration)” to the expectations of the Australian community: see at [33]. (Emphasis added).

48    The present case was decided under the Direction and the Tribunal did treat the interests of Mr Basile’s son as being one of the primary considerations informing its decision.

IMPROPER EXERCISE OF POWER GROUNDS

49    The first of the grounds falling within this group alleges that the Tribunal took into account the circumstances of Mr Basile’s adult child Tamara when considering the best interests of his son Michael. Particulars subjoined to the ground allege that Clauses 10.4.1(1)-(3) of the Direction required that a child who is a minor be considered separately from a child who is an adult.

50    In oral argument counsel for Mr Basile said that it was not suggested that the Tribunal should have dealt discretely with Michael and Tamara in its reasons. Rather, it was submitted, the Tribunal had erred by treating Tamara’s interests as a primary consideration. This led to a second alleged error, namely, that the Tribunal had taken into account Tamara’s interests as being of equal or greater importance than those of Michael.

51    The errors could be discerned, it was contended, from the parts of the Tribunal’s reasons which are set out above at [23]. Counsel pointed out that the Tribunal’s findings, in these passages, were grouped under the heading “International Obligations”. In a series of paragraphs findings were made relating to both Tamara’s and Michael’s circumstances and opinions when only Michael had the benefit of the Convention. Attention was drawn, for example, to paragraph [153] of the Tribunal’s reasons in which Tamara’s appreciation of various matters is dealt with before Michael’s perspective is recorded. Further, at a number of points in its reasons, the Tribunal had examined Michael’s and Tamara’s interests in the same paragraph despite the fact that those interests were divergent. Paragraphs [154] and [157] were cited as examples of this phenomenon.

52    These grounds have not been made out. The Tribunal was well aware that “the best interests of the child” was a primary consideration only in respect of Michael. This is clear from the statement in paragraph [152] that the Convention applied “because Michael is under 18 years of age” and the statement (in paragraph [153]) that “Michael is the child”. Although Tamara’s best interests were not a primary consideration it was open to the Tribunal to take them into account: see subclause 10.4.1(2) of the Direction. Both Michael and Tamara had given evidence in support of their father’s case. Each had said that they were seeking to develop an ongoing relationship with him once he was released from custody. To this extent their interests coincided. In recent years, in the absence of their father and the disinterest of their mother Tamara had accepted a good deal of responsibility for Michael’s wellbeing. There was sibling rivalry between them. They had differing expectations about how their future relationship with their father might be worked through.

53    In these circumstances it was hardly surprising that the Tribunal would deal with their interests in the same section of its reasons without losing sight of the obligation to accord primacy to Michael’s interests. This is what it did. It did not elevate Tamara’s interests to the same level or above those of Michael.

54    The third “improper exercise of power” ground was that the Tribunal had failed to take into account three relevant considerations which it was required, by the Direction, to take into account. These were matters prescribed by Clause 10.4.1(5) of the Direction. They were Michael’s age (para (d)); the impact of Mr Basile’s prior conduct and whether that conduct has, or has had a negative or positive impact on Michael (para (h)); and any Court orders relating to parental access and care arrangements (para (j)).

55    These were three of the 15 factors which the Direction requires decision-makers to consider when “considering the best interests of the child”. The Tribunal is only able to take these factors into account if they arise in the circumstances of a particular case. Some factors such as the age of a child who is a minor will always be present when subclause 10.4(1) of the Direction is engaged. Others, such as the nature and effect of Court orders, will only be present in some cases. The Tribunal’s ability to give consideration to a relevant factor will be constrained by the extent of the material on a particular topic which is placed before it.

56    It is true that, nowhere in its reasons, did the Tribunal expressly state that Michael was 16 years old at the time of its decision. It does not follow that the Tribunal had failed to take into account his age. It is clear from its reasons that it was well aware of his age. His date of birth was mentioned early in the reasons. Later the Tribunal recorded that Michael was 11 years old when his father went to jail. It also noted that, in July 2010, he was enrolled in a tertiary institution. The Tribunal saw him giving evidence. There can, in my opinion, be no doubt that the Tribunal had regard to Michael’s age in coming to its decision.

57    The Tribunal did not ignore the issue of the impact of Mr Basile’s conduct on Michael. It did not have the benefit of a professional assessment from a psychologist or a social worker. It did, however, have Michael’s evidence in which he said he had missed out on a lot of his childhood because of his father’s absence, that he had regularly visited his father in prison and that there were difficulties in his relationship with his mother because he was “the only man in the house”: reasons at [93], [94], [97] and [98]. This evidence was taken into account when the Tribunal came to make its findings: see at [156] and [159]. This factor was, therefore, taken into account to the extent that the material before the Tribunal allowed.

58    The Tribunal was aware that Mr and Mrs Basile had separated in 1999 and that, subsequently, the Family Court had made orders relating to their access to their children. The Tribunal refers (at [22]) to the existence of such orders and their interaction with intervention orders made against Mr Basile. There is reference to the Family Court’s orders in a record of interview between Mrs Basile and a Departmental officer on 16 January 2002. While this report was before the Tribunal the orders were not. There was no evidence before the Tribunal to indicate whether or not these orders were still current. In these circumstances there was little more that the Tribunal could do than note that orders relating to access had been made in the past. This it did.

59    The final ground in this group was that the Tribunal had failed, contrary to the requirements of Clause 10(1)(d)(i) of the Direction, to give primary consideration to the best interests of Michael.

60    For reasons already given, I do not accept that the Tribunal erred in this way. On the contrary, it did give primary consideration to Michael’s best interests.

FAILURE TO ENQUIRE GROUND

61    Mr Basile contended that the Tribunal was required, by subclause 10.1.2(2) of the Direction to obtain professional reports, such as psychological reports and parole assessments, in order to determine the extent of Mr Basile’s rehabilitation and his prospects for further rehabilitation.

62    Mr Basile accepted that, normally, the Tribunal is under no obligation to travel beyond the evidence and material before it and conduct, or direct the conduct of, further investigations before it determines an appeal. Cases such as the present were, however, it was submitted, exceptional because the Direction required the Tribunal to have regard to particular matters including the extent of an applicant’s rehabilitation and the prospect of further rehabilitation. He relied on decisions of this Court in Videto v Minister for Immigration and Ethnic Affairs (1985) 8 FCR 167 and Luu v Renevier (1989) 91 ALR 39.

63    As already noted, one of the primary considerations prescribed by the Direction is the protection of the Australian community from serious criminal conduct: see Clause 10(1)(a). Subclause 10.1(2)(b) provides that a factor relevant to assessing the level of risk of harm to the community is the risk that past criminal conduct might be repeated should the person be permitted to remain in Australia. In assessing the likelihood of repetition of past misconduct, subclause 10.1(2)(b) requires that one of the factors to be considered is “evidence of the extent of rehabilitation already achieved and the prospect of further rehabilitation.” It is this latter provision which, it was contended, required a departure from the general rule that it was not incumbent on the Tribunal to make independent enquiries.

64    Counsel for Mr Basile conceded that no application had been made to the Tribunal for an adjournment to enable Mr Basile to obtain and file professional reports. Nor had application been made under s 40(1A) of the AAT Act for any existing reports (if there were any) to be produced. Mr Basile had been represented by experienced counsel before the Tribunal.

65    In dealing with the matters to which its attention was directed by sub-clause 10.1.2 of the Direction, the Tribunal had before it a range of material. That material was “the evidence about events that led to [Mr Basile’s] offences (including the most recent of manslaughter), his own evidence regarding matters such as the events that led to his offending and his future intentions, the faith that his family has in him, his criminal record, his record in prison, the steps that he has undertaken to rehabilitate himself and articles to which [the Tribunal had] been referred”: see at paragraph [142]. Detailed consideration of this material was given in the succeeding paragraphs of the Tribunal’s reasons. They led the Tribunal to conclude (at [168]) that there existed an unacceptable risk to the Australian community that Mr Basile would reoffend. The principal reasons for this conclusions were Mr Basile’s failure to address the reasons for his offending behaviour, his disregard for the property of others, his disregard of and for the safety of others and his failure to show any remorse for any past misconduct.

66    The authorities relied on by Mr Basile do not support the proposition that the Tribunal is required, in circumstances such as the present, of its own motion, to undertake further enquiries in order to ensure that it has regard to all relevant considerations.

67    In Videto the applicant succeeded in obtaining judicial review of a decision of the Minister on the ground that the Minister had failed to take into account a relevant consideration. In that case, as in the present, an adverse decision rendered the applicant liable to deportation. Toohey J held (at 178-9) that:

“In such a case it may be that the material placed before the Minister or his delegate contains some obvious omission or obscurity that needs to be resolved before a decision is made. This is more likely to be the case where the person concerned has not had the benefit of any advice. If an officer of the Department withholds information from the Minister or his delegate, it is no answer to a complaint that the decision-maker failed to take into account a relevant consideration to say that the matter was not before him. That information was constructively before him. And, in my view, if an officer of the Department, albeit innocently, dissuades or discourages a person from giving information that is relevant to the decision to be made, it is no answer to a complaint … to say that the decision-maker did not have the matter before him. It was nevertheless a relevant consideration. Clearly much will depend upon the circumstances of each particular case.”

68    In the present case, Mr Basile had the benefit of legal advice. He had the opportunity, had he wished, to obtain and place before the Tribunal (as he did) evidence and other material that supported his application. There has been no suggestion that any relevant information in the possession of the Department was withheld from the Tribunal or that any Departmental officer sought to dissuade Mr Basile from placing professional assessments before the Tribunal.

69    In Luu recidivism was an issue that assumed greater significance than it did in this case. It was an issue which the Court said was “of some complexity, requiring the best possible medical advice.” The evidence that was before the decision-maker was inadequate for this purpose and the decision-maker had not attempted to obtain a report from a psychiatrist who was known to be treating the applicant. The decision under review was set aside under the Administrative Decisions (Judicial Review) Act 1977 (Cth) on the ground that it was unreasonable. The Full Court held that “one may be able to say that a decision is unreasonably made where, to the knowledge of the decision-maker, there is readily available to him or her other factual material, likely to be of critical importance in relation to a central issue for determination, and which has not been obtained” (at 50).

70    Luu is distinguishable for a number of reasons. No ground of unreasonableness is relied on in this case. Furthermore, there was no evidence before the Tribunal to suggest that Mr Basile had recently been or was currently receiving treatment from a psychologist or other professional person who might be in a position to express an opinion on the likelihood of recidivism. Moreover there was nothing to suggest that relevant information would readily be available from such persons.

71    It was open to the Tribunal to supplement the material on which it acted (see s 33(1)(c) of the AAT Act) but it did not err, in the circumstances of this case, by failing to exercise this power.

DISPOSITION

72    The application should be dismissed with costs.

Associate:

Dated:    22 March 2011