FEDERAL COURT OF AUSTRALIA

Minister for Immigration and Citizenship v Shume [2013] FCA 158

THE COURT ORDERS THAT:

1.    A writ of certiorari be granted quashing the decision of the second respondent (the Tribunal) in Re Yimam Shume and Minister for Immigration and Citizenship [2012] AATA 465 (No 2012/1973).

2.    A writ of mandamus be granted directing the Tribunal to determine the first respondent’s application according to law.

3.    The first respondent pay the applicant’s costs.

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

REASONS FOR JUDGMENT

Introduction

1    This is an application for judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) which set aside a decision of a delegate of the Minister for Immigration and Citizenship (the Minister). The Minister had cancelled the first respondent’s temporary resident visa on the basis that he did not meet the character test: see s 501(2) of the Migration Act 1958 (Cth) (the Act).

2    It was not in dispute that the first respondent did not pass the character test. He had a substantial criminal record (as defined) in that he had been sentenced to a term of imprisonment for 12 months or more: ss 501(6)(a) and 501(7)(c) of the Act. The issue before the Tribunal was how the discretion under s 501(2) of the Act should be exercised. In that connection, the Tribunal was obliged, as was the Minister’s delegate, to comply with written directions that had been given under s 499(1) of the Act.

3    The relevant direction is Direction [No. 41] – Visa Refusal and Cancellation under s 501 (Direction 41).

4    Direction 41 comprises two Parts. The first (Part A) provides directions on the application of the character test. The second (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 to cancel the visa.

5    In this connection, Direction 41 provides, amongst other things, as follows:

Decision-makers should note that a number of the primary and other considerations may not be relevant to a decision under certain circumstances.

6    Paragraph 9(1) of Direction 41 provides that, subject to the consideration of relevance noted above, decision-makers must take into account the primary considerations in every case. Paragraph 9(2) provides that decision-makers should only take into account directly relevant considerations.

7    Paragraph 10 of Direction 41 then points to four primary matters that are to be considered:

(a)    the protection of the Australian community from serious criminal or other harmful conduct, particularly crimes involving violence;

(b)    whether the person was a minor when they began living in Australia;

(c)    the length of time that the person has been ordinarily resident in Australia prior to engaging in criminal activity or other relevant conduct; and

(d)    relevant international obligations.

8    The matters of particular significance in the present case are those in (b) and (c). The Minister contended that the Tribunal erred by failing to take each matter into account. The Minister also contended that the Tribunal failed to afford procedural fairness to him by failing to respond to a substantial, clearly articulated argument that each matter was a consideration that should weigh in favour of the first respondent’s visa being cancelled.

Background

9    The facts by reason of which the first respondent did not pass the character test are not in dispute. It is convenient to refer to the relevant passages from the Tribunal’s findings at [16]-[24] of its reasons:

The Applicant was born in Ethiopia on or about 18 April 1960. He left Ethiopia in the early 1990s because of his involvement in political activity. After spending time in refugee camps in Sudan and Kenya he was accepted by New Zealand as a refugee in 2000. In 2005 he was granted New Zealand citizenship.

In September 2007 he “met” a woman resident in Australia on the internet. He visited the woman on a couple of occasions before moving to Australia. In May 2008 he left New Zealand where he was permanently employed and moved to Australia. He lived with the woman in her house with her two children. Apparently the partnership was successful and the Applicant formed a close bond with his then partner's children.

Unfortunately, the relationship soured in December 2008 as the Applicant was unable to find employment. At the end of March 2009 he was asked by his partner to move out of her house. This he did, although with his ex-partner's encouragement he continued to visit her children on weekends. Apparently the ex-partner held out some hope of a reconciliation should the Applicant obtain employment.

Notwithstanding his ex-partner's suggestion of a possible reconciliation the Applicant became aware that she was seeing another man.

On the night of 7 June 2009 the Applicant attempted to contact his ex-partner by phone. When he was told that she was out with a friend, the Applicant went to her home. He questioned his ex-partner's children about their mother's whereabouts, found that she was out with another man and the children were in the care of a babysitter. When his ex-partner returned home he attacked her with a knife causing two stab wounds which, whilst requiring suturing, were not life threatening.

After stabbing his ex-partner and whilst still armed with a knife he chased her male companion down the road, but that person was able to out run the Applicant.

The Applicant then returned to his ex-partner's home where she had secured herself, her children and the 18 year old babysitter inside. After breaking the knife blade attempting to force open a window, the Applicant threw a pot plant through a glass sliding door to gain entry. He then again assaulted his ex-partner.

During these events the babysitter, who was herself only 18, had taken the victim's children into a bedroom. The Applicant, after assaulting his ex-partner, entered the bedroom and spoke to the children assuring them that he did not intend to harm them but spoke in derogatory terms about their mother.

When police arrived at the scene they found the Applicant in front of the house. He was arrested and later made detailed admissions to police. As stated, the Applicant pleaded guilty to the offences in the District Court.

10    The first respondent pleaded guilty to three offences described by the Tribunal as:

(a)    reckless wounding;

(b)    being armed with a knife with intent to assault; and

(c)    breaking into a home knowing a person was inside and committing the offence of assault occasioning actual bodily harm.

11    On 25 August 2010, the first respondent was sentenced by Sides DCJ in the District Court of New South Wales to a total term of imprisonment of four years with a two year non-parole period.

Tribunal hearing

12    The Minister’s statement of facts and contentions (dated 5 July 2012) that was before the Tribunal (the statement of facts and contentions) addressed each of the four primary considerations to which I have referred. It also addressed other considerations referred to in paragraph 11 of Direction 41. Paragraph 11(1) of Direction 41 provides that, in reaching a decision on whether to refuse or cancel a visa, other considerations, although not primary, may be relevant and, if so, must be considered: see also paragraph 9(1). Paragraph 11(2) of Direction 41 provides that it is appropriate that these considerations, where relevant, must be taken into account but, generally, should be given less weight than the primary considerations.

13    Paragraph 11(3) identifies these other considerations, which may be summarised as:

(a)    family ties and the nature and extent of any relationships;

(b)    the person’s age;

(c)    the person’s health;

(d)    any links to the country to which they would be removed;

(e)    hardship likely to be experienced by the person or their immediate family members lawfully resident in Australia;

(f)    the level of education of the person; and

(g)    whether the person has been formally advised in the past about conduct that brought the person within the deportation provisions of the Act or the character provisions of the Act.

14    After dealing with some preliminary matters, the statement of facts and contentions addressed the first primary consideration, namely, the protection of the Australian community. It is not necessary to set out the relevant facts and contentions in detail. It is sufficient for me to note that, by way of conclusion, the Minister contended that the first respondent’s risk of recidivism was an unacceptable risk of harm to the Australian community – even if that risk were assessed to be low – and no member of the Australian community should be exposed to it.

15    The statement of facts and contentions then dealt with the second primary consideration, namely, whether the first respondent was a minor when he began living in Australia. In that connection, the statement of facts and contentions argued as follows:

Paragraphs 10.2(1) and (2) of the Direction provides:

(1)    If the person was a minor when they began living in Australia and spent their formative years in Australia, thereby increasing the likelihood of establishment of greater ties and linkages to the Australian community, this is to be given favourable consideration.

(2)    Less weight should be given if the person began living in Australia as a minor but was close to attaining adulthood at that time.

The Applicant began living in Australia as an adult at the age of 48 years old.

The Respondent submits that the Tribunal is entitled to give adverse consideration to the fact that the Applicant was not a minor at the time when they began living in Australia. In Rosson v Minister for Immigration and Citizenship [2011] FCA 194, Justice Rares stated:

Mr Rosson argued that cl 10.2 controlled the entirety of the consideration that a decision maker could give to the primary consideration in cl 10(1)(b); namely “whether the person was a minor when they began living in Australia.” He argued that cl 10.2 required favourable consideration to be given to such a person if they were a minor when they began living in Australia, with that favourable weight being variable depending on the length of time of the minority of the person. He contended, however, that the decision maker could only give favourable or neutral consideration, but not adverse consideration, to the fact that the person was not a minor at the time when they began living in Australia. I reject that construction.

In my opinion, a decision-maker was entitled to take into account the fact that a person who arrived in Australia as an adult, did so with the knowledge, duties and responsibilities of an adult in the position of the visa holder, at that time for the purposes of assessing what, if any, weight ought to be given to that factor in the deliberative process. A decision-maker was entitled to take into account the fact that the person was not a minor. Indeed, a decision-maker was bound to have regard to that consideration by force of cl 10(1)(b). No direction is provided in the balance of Direction 41 as to the weight that should be given to the fact that the visa holder was not a minor under cl 10(1)(b).

    The Respondent submits that therefore, this consideration should weigh in favour of cancelling the visa.

16    The statement of facts and contentions then dealt with the third primary consideration, namely, the length of time the first respondent has been ordinarily resident in Australia before engaging in criminal activity. In that connection, the statement of facts and contentions argued as follows:

This consideration refers to the amount of time a person ordinarily resident in Australia ‘prior to engaging in criminal activity or activity that bears negatively on their character’. The Directions provides that:

Reflecting the fact that the longer a period of residence in Australia the greater the likelihood of significant ties to the Australian community, more favourable consideration is to be given the longer the person has been ordinarily resident in Australia piror to engaging in criminal activity that bears negatively on their character.

The Applicant started living in Australia in May 2008 and committed offences in June 2009. The Applicant therefore lived in Australia for one year before engaging in any criminal activity.

The Respondent submits that the Tribunal is entitled to regard the fact that the Applicant who had been present in Australia for a short period prior to engaging in criminal activity as a consideration unfavourable to the Applicant. In Rosson v Minister for Immigration and Citizenship [2011] FCA 194, Justice Rares stated:

Nor do I accept Mr Rosson’s argument that cl 10.3 prevented the tribunal from giving unfavourable consideration to the length of time Mr Rosson had been ordinarily resident in Australia prior to his commencing to engage in his criminal activity or other relevant conduct for the purposes of cl 10(1)(c).

There does not seem to be any legal or other reason why, in weighing a person’s entitlement to be granted or refused a visa, a decision-maker should not have regard, in considering the primary consideration in cl 10(1)(c), to the fact that the person had been ordinarily resident in Australia for a short period prior to engaging in the criminal or other relevant activity as an unfavourable, rather than a favourable, or neutral matter. Indeed, common sense would suggest that it might be a particularly relevant factor that a person had embarked upon criminal activity very shortly after arriving in this country, in determining whether it was in the national interest that that person be allowed to remain here with a visa granted by the government of the country under the Act.

The Respondent also submits that the Applicant does not have significant ties to the Australian community. The sentencing judge states that “Apart from the victim and her children, he had no friends or contacts in this country.”

The Respondent submits that therefore, this consideration should weigh in favour cancelling the visa.

[As in original]

17    The statement of facts and contentions then dealt with the fourth primary consideration. In that connection, the Minister noted that the first respondent did not claim that any international obligations were applicable to his case. The Minister contended that there was no child or children under the age of 18 potentially affected by the cancellation of the first respondent’s visa. The Minister therefore contended that this consideration should weigh in favour of cancelling the first respondent’s visa.

18    The statement of facts and contentions incorporated a conclusion in relation to the four primary considerations:

The respondent contends that the first primary consideration weighs strongly in favour of cancelling the visa. The Respondent also contends that the other three primary considerations also weigh in favour of cancelling his visa.

19    The statement of facts and contentions addressed each of the other matters identified in paragraph 11(3) of the Direction. It incorporated a conclusion relating to the other considerations and how they should be weighed in light of the four primary considerations. In that connection, the statement of facts and contentions argued as follows:

The Respondent contends that considerations (a), (b), (c), (e) and (f) do not assist the Applicant. However, considerations (d) and (g) may weigh slightly in the Applicant’s favour.

The Respondent contends that the “other considerations” (d) and (g) do not outweigh the four primary considerations which strongly weigh in favour of cancelling the visa. In particular, the Respondent contends that the “other considerations” (d) and (g) do not outweigh the protection owed to the Australian community.

20    The statement of facts and contentions concluded, more generally, as follows:

The objective of the Direction is to protect the Australian community form unacceptable risks of harm as a result of criminal conduct or other serious conduct by non-citizens.

The Respondent contends that the Applicant presents an unacceptable risk of harm to the Australian community and does not pass the character test as a result of his substantial criminal record.

The primary considerations of the protection of the Australian community outweigh any hardship to the Applicant such that the discretion in section 501 of the Act should not be exercised in the Applicant’s favour.

The decision under review should be affirmed.

[As in original]

21    It is apparent from the statement of facts and contentions that the Minister placed reliance on each of the primary considerations and argued that each weighed in favour of cancellation of the first respondent’s visa. It is also apparent that the Minister contended that none of the “other” considerations, considered cumulatively, outweighed the four primary considerations.

The Tribunal’s reasons

22    The scheme of the Tribunal’s reasons to set aside the delegate’s decision can be summarised as follows.

23    The reasons commenced with a summary of the relevant legislative provisions (at [2]-[9]) and then noted (at [10]) that there was no dispute that the first respondent did not pass the character test. The Tribunal then identified (at [11]) the four primary considerations referred to in the Direction.

24    The Tribunal considered the case under the following headings:

(a)    Protection of the Australian community: [12]-[25], part of which has been quoted above.

(b)    The risk that the conduct may be repeated: [26]-[42].

(c)    Whether the [first respondent] was a minor when he began living in Australia: [43].

(d)    The length of time [the first respondent] has been ordinarily resident: [44].

(e)    International obligations: [45] and [46].

(f)    Other considerations: [47]-[49].

(g)    Consideration: [50]-[56].

25    It is appropriate to set out the paragraphs of the Tribunal’s reasons dealing with its consideration of the case:

The offences committed by the Applicant are serious. No victim impact statement was included in the papers before me, but as pointed out by the learned District Court Judge, the victims of his offences, particularly the children who witnessed the assault upon their mother, are likely to have been traumatised and suffered emotional damage.

Should the Applicant's conduct be repeated the consequences could be grave. The Applicant was fortunate that more serious injury was not occasioned to his ex-partner.

On the other hand the offence was committed by a person who on sentencing was described as having no prior convictions. After the assaults he waited for police to arrive and co-operated with their investigations and pleaded guilty at the earliest possible opportunity. It was accepted by Sides DCJ that the Applicant had expressed remorse and addressed issues underlying his offending in the period between the offence and sentencing.

Reports from the Probation and Parole Service are positive and the report of Mr Taylor, a psychologist, opines that the Applicant is at low risk of re-offending. Upon release from gaol he will have a support network and has taken active steps whilst in gaol to obtain qualifications that should make him attractive to an employer. As a result of a work-release program he has a job to go to upon release.

The Applicant has a good standard of education and his offences can be said to have arisen whilst he was depressed at the end of a relationship and would seem to have been out of character.

To my mind the Applicant does not represent an unacceptable risk of harm to the Australian community. The decision under review is set aside and the Tribunal exercises its discretion not to cancel the Applicant's visa.

I have one caveat in respect of my reasons for setting aside the decision under review. At sentencing the Crown did not adduce any evidence of convictions in New Zealand. This may be because there are none or the Crown did not enquire. Likewise in these proceedings, no material was put before me to suggest in any way that the Applicant had any adverse history in New Zealand. I state quite unequivocally that if it had transpired that the Applicant had any history of violence, particularly domestic violence, in New Zealand my decision would have been to affirm the decision under review.

26    It is also appropriate to set out those paragraphs of the Tribunal’s reasons dealing with the second and third primary considerations referred to in the Direction.

27    So far as concerns the question whether the first respondent was a minor when he began living in Australia, the Tribunal said (at [43]):

The Applicant was not a minor when he began living in Australia.

28    So far as concerns the length of time the first respondent had been ordinarily resident in Australia before engaging in criminal activity, the Tribunal said (at [44]):

The Applicant arrived in Australia seeking permanent residence in 2008. He committed the offences for which he is currently in prison on 7 June 2009.

The grounds of review

29    The grounds of the Minister’s application for review are expressed as follows:

1.    The Tribunal failed to comply with section 499(2A) of the Migration Act 1958 (Cth) and, or in the alternative, failed to take into account relevant considerations.

    Particulars

    Direction 41 – Visa Refusal and Cancellation under s 501 (Direction 41) was issued pursuant to section 499(1) of the Migration Act on 3 June 2009 and was binding on the Tribunal under section 499(2A). By paragraphs 10(1)(b) and (c), and 10.2 and 10.3 of Direction 41, the Tribunal was required to take into account whether the First Respondent was a minor when he began living in Australia, and the length of time he was ordinarily resident in Australia prior to engaging in criminal activity.

    The Tribunal in coming to its conclusion failed to take into account relevant considerations, and, or in the alternative, failed to comply with section 499(2A), by failing to take into consideration whether the First Respondent was a minor when he began living in Australia, and the length of time he was ordinarily resident in Australia prior to engaging in criminal activity, and thereby committed jurisdictional error.

2.    The Tribunal’s decision is infected by jurisdictional error because:

(a)    the Applicant was denied procedural fairness; and, or in the alternative

(b)    the Second Respondent breached section 39 of the Administrative Appeals Tribunal Act 1975 (Cth).

Particulars

The Tribunal denied the Applicant procedural fairness and or breached section 39 of the Administrative Appeals Tribunal Act by failing to address the Applicant’s argument that the relevant considerations referred to in ground one should weigh in favour of cancellation of the First Respondent’s visa, and thereby committed a jurisdictional error.

Submissions

The Minister’s submissions

30    The Minister pointed to the statement of facts and contentions before the Tribunal and to the fact that he had contended that both the second and third primary considerations should weigh in favour of cancelling the first respondent’s visa. The Minister submitted that, although the Tribunal noted that the first respondent was not a minor when he began living in Australia and that he committed the offences on 7 June 2009 after having arrived in Australia in 2008, the Tribunal did not explain what, if any, significance it attached to those findings. The Tribunal did not record or respond to the Minister’s submission that both considerations should weigh in favour of cancelling the first respondent’s visa. The Minister submitted that it cannot be said that the Tribunal took into account the second and third primary considerations merely by recording the two matters in the way that it had. The Minister submitted that both matters were of objective significance and weighed in favour of cancellation of the first respondent’s visa.

31    In a similar vein, the Minister submitted that the Tribunal cannot be said to have afforded him procedural fairness. Nowhere in the reasons does the Tribunal deal with the Minister’s submissions on the second and third primary considerations. The Minister thus submitted that, by failing to respond to a substantial, clearly articulated argument relying upon established facts, he had been denied procedural fairness.

The first respondent’s submissions

32    The first respondent submitted that the Minister made no substantial arguments in favour of the second or third primary considerations. Indeed, he submitted that the Minister conceded any reliance on the second primary consideration and accepted that a core part of the argument relating to the third primary consideration was of little relevance.

33    Those two contentions stood as the first respondent’s main submissions on the hearing of this application. He also advanced, however, the following submissions which provide a context in which his two main submissions fall to be considered:

(a)    There was no positive obligation on the Tribunal to find unfavourably against the first respondent solely on the grounds that he was not a minor or had not resided in Australia for any significant length of time.

(b)    The Tribunal’s reasons are meant to inform and should not be scrutinised over-zealously by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.

(c)    The totality of the transcript and the Tribunal’s ultimate analysis (including the conduct of the Tribunal and the Minister at the hearing, and the Tribunal’s “actual consideration of the matter in its entirety”) show that the Tribunal did engage meaningfully and appropriately with the Minister’s contentions.

(d)     The Tribunal was clearly aware of the first respondent’s personal circumstances as they related to the second and third primary considerations, and made note of those matters in its decision.

(e)    A fair reading of the Tribunal’s reasons was that it gave “neutral” weight to the second and third primary considerations.

34    The first respondent therefore submitted that the Tribunal did not fail to take into account the second and third primary considerations. He further submitted that there had been no denial of procedural fairness to the Minister because, when asked about the second primary consideration, the Minister “effectively conceded reliance upon that argument”. Moreover, the Minister “conceded that a critical part of its argument in relation to the third primary consideration was of little relevance”.

35    In order to understand these submissions, it is necessary to have regard to certain passages from the transcript of the hearing before the Tribunal where the first respondent says the Minister made these respective concessions.

36    As to the contention that the Minister had conceded that reliance was not placed on the second primary consideration, the first respondent relied upon the following exchange:

MS DARCY:    … I will just move on very quickly to status as a minor.

[TRIBUNAL]:    Yes.

MS DARCY:    Which is the second primary consideration.

[TRIBUNAL]:    That doesn’t come into it, does it?

MS DARCY:    Skip over that one?

[TRIBUNAL]:    Yes, please.

MS DARCY:    And, of course, we’ve already gone into length of time before offending.

[TRIBUNAL]:    Yes.

MS DARCY:    As for any international obligations …

37    In relation to the third consideration (the second alleged concession), the first respondent relied upon the following exchange:

MS DARCY:    … As for the other considerations, it’s very thin on the evidence that he’s not currently in a relationship and does not have any family in Australia. Although he has had some employment in Australia, there’s no evidence that his removal would cause any disruption to those businesses. As to the applicant’s health, we’ve noted that he has HIV.

[TRIBUNAL]:    New Zealand is the same.

MS DARCY:    It’s a comparable healthcare system. That’s our submission, Senior Member. Although the applicant’s evidence is that he has no links in New Zealand, we would say that he has spent eight years there and was employed for most of that period. His current links to Australia are generally based on connections to charitable organisations.

[TRIBUNAL]:    I suppose it could be said in one sense that his links to New Zealand are no less than his links to Australia at the moment.

MS DARCY:    It’s almost as though the factors balance each other out and almost become neutral to that extent.

Consideration

38    I am not satisfied that, at the hearing before the Tribunal, the Minister made the concessions which the first respondent says were made.

39    First, in relation to the second primary consideration, the Minister advanced a specific submission in the statement of facts and contentions that the first respondent was an adult when he began living in Australia and that this consideration should weigh in favour of cancelling his visa. The Minister developed this submission by referring to the remarks made by Rares J in Rosson v Minister for Immigration and Citizenship (2011) 191 FCR 390 at [20] and [21] concerning the application of the Direction to a person who arrived in Australia as an adult. The salient aspects of his Honour’s remarks were that that was a factor that a decision-maker was bound to take into account and which may warrant adverse consideration so far as the visa applicant or holder is concerned because, as an adult, he or she can be taken to have arrived in Australia “with the knowledge, duties and responsibilities of an adult”. His Honour stressed, however, that the weight, if any, to be given to that factor was a matter for the decision-maker. As I have noted, in the statement of facts and contentions, the Minister urged on the Tribunal that this was a factor in the present case that weighed in favour of cancellation.

40    When the Minister’s legal representative came to articulate that contention in oral argument, the Tribunal forestalled any debate by asking: “That doesn’t come into it, does it?”. The Minister’s legal representative’s response was not to agitate the point but to ask the Tribunal whether she should “[s]kip over” the contention, to which the Tribunal said she should.

41    It is difficult to know what was in the Tribunal’s mind when it intervened in that particular way. It is possible that the Tribunal was merely remarking that the first respondent was not a minor when he arrived in Australia. This acknowledgment is manifest in [43] of the Tribunal’s reasons. It is also possible that the Tribunal had other matters in mind. It is possible, for example, that the Tribunal was expressing a view, elliptically, that the first respondent could not call in aid, favourably, that he was a minor when he arrived in Australia. If so, it does not follow that the Tribunal was not also alert to the fact that the Minister was contending that the second primary consideration should be considered adversely to the first respondent.

42    On the other hand, it is possible that the Tribunal misdirected itself by thinking that the second primary consideration was rendered irrelevant by the fact that the first respondent was an adult when he arrived in Australia. If that was so, it is not clear on the face of the transcript. The transcript simply does not illuminate matters and the Tribunal’s reasons themselves do not expose its thinking on that particular score.

43    A fair reading of the transcript suggests that the Minister’s legal representative understood that the Tribunal did not wish her to tarry on that particular consideration. I do not think, however, that it would be either fair or reasonable to assume from that short exchange that the Tribunal was positively asserting that, in this particular case, the second primary consideration was irrelevant and that, correspondingly, the Minister’s legal representative was either agreeing with that assertion or acquiescing in it. In light of the development of the positive submission in the statement of facts and contentions that the second primary consideration should weigh in favour of cancellation of the first respondent’s visa, and the role of that particular submission within the structure of the facts and contentions considered as a whole, I do not think that by simply asking “[s]kip over that one?” the Minister’s legal representative was thereby signifying that the Minister was abandoning a significant plank in his case. A carefully structured submission was not abandoned by the Minister’s legal representative moving on to the next contention at the urging of the Tribunal.

44    Secondly, in relation to the third primary consideration, the Minister also advanced a specific submission in the statement of facts and contentions: the fact that the first respondent had been present in Australia for a short period of time prior to engaging in criminal activity was a consideration that was unfavourable to him. Once again, the Minister developed this submission by referring to the remarks made by Rares J in Rosson, at [23]. In that connection, his Honour remarked that there was no legal or other reason why unfavourable consideration cannot be given to the fact that the person has been ordinarily resident in Australia for a short period of time prior to engaging in the criminal or other relevant activity.

45    I cannot view the passage from the transcript on which the first respondent relied as indicating that, contrary to the specific submission which had been developed in the statement of facts and contentions, the Minister’s legal representative was urging a different submission, namely, that the third primary consideration should be considered by the Tribunal neutrally. In my view, it is perfectly clear from that part of the transcript that the Minister’s legal representative was addressing the other, non-primary considerations referred to in paragraph 11 of the Direction. Specifically, the Minister’s legal representative was responding at that time to the suggestion advanced by the Tribunal that the first respondent’s links to New Zealand were no less than his links to Australia. In my view, it is plain that the Minister’s legal representative was not addressing the third primary consideration.

46    In the course of oral argument in this Court, the first respondent’s solicitor advanced the proposition that aspects of the third primary consideration were subsumed into aspects of the non-primary considerations identified in paragraph 11 of the Direction. Whilst one can accept that factual findings in a given case may be capable of informing one or more of the primary considerations and one or more of the non-primary considerations referred to in paragraph 11 of the Direction – and the length of time for which a visa applicant or holder has been resident in Australia is one such fact – the Direction nevertheless distinguishes between considerations and, in particular, whether they are either primary or non-primary. I do not accept the first respondent’s submission that, because the first respondent was only resident in Australia for a short time before engaging in his criminal activity, the Minister’s specific submission with respect to the third primary consideration somehow became subsumed in a more general submission concerning the extent of his ties to Australia compared with his ties to New Zealand. In short, I am satisfied that the Minister’s submissions with respect to the third primary consideration and the non-primary considerations identified in paragraph 11 of the Direction were logically distinct and maintained as such during the course of the hearing before the Tribunal.

47    The issue therefore is really a short one.

48    The Minister relied on the general statements of principle and the application of those principles in Lafu v Minister for Immigration and Citizenship (2009) 112 ALD 1 as an analogue for the present case. In Lafu, the question was whether, in connection with the application of a predecessor direction – Direction 21 – the Tribunal had taken into account the factor of general deterrence when considering, as the Tribunal was obliged to do, the protection of the Australian community and members of the community. In that case, the Tribunal had referred to the question of general deterrence and discussed its significance as a matter of principle: Re Lafu and Minister for Immigration and Citizenship (2009) 107 ALD 678 at [124]-[127]. The issue was whether the Tribunal had given no more than an “abstract recitation of principle”. The primary judge reasoned that the Tribunal’s observations on general deterrence had to be read in light of its preceding findings of fact and that, when so read, those paragraphs represented an assessment by the Tribunal that general deterrence was not a decisive or even a substantial factor, but merely a relevant factor. The primary judge concluded that those observations represented the Tribunal’s conclusion on the facts of the individual case and “not in the mere abstract”: Lafu v Minister for Immigration and Citizenship (2009) 110 ALD 302 at [25].

49    The Full Court, however, disagreed. The Full Court acknowledged the caveat in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 that “the reasons of an administrative decision-maker are meant to inform and [are] not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed”: see also McAuliffe v Secretary, Department of Social Security (1992) 28 ALD 609 at 616, and the cases there discussed. Nevertheless, the Full Court (at [49]) concluded:

When the allowances called for by this passage are made, we remain of the view that the AAT's reasons for decision fall on the wrong side of the line: they do not show an active intellectual engagement with the question how the factor or consideration of general deterrence was taken into account, and therefore whether it was taken into account at all, in the exercise of a discretion to cancel. Mr Lafu would be left to guess what role, if any, the issue of general deterrence had played. Yet it will be recalled … that Mr Lafu had expressly submitted that “[g]iven the lack of publicity about the matter, and the lack of any gang involvement, cancelling the applicant's visa would have no deterrent value”.

50    Later, the Full Court (at [54]) said:

Notwithstanding her Honour's careful analysis, our own careful analysis of the AAT's reasons convinces us that so far as those reasons reveal, the AAT did not reach a conclusion in relation to whether and to what extent general deterrence was relevant to the circumstances of Mr Lafu's case. Apart from reciting the requirement that that factor be taken into account, the AAT's reasons do not indicate whether the AAT was influenced, and if so by what process of reasoning, by the factor of general deterrence, in deciding that Mr Lafu's visa was to be cancelled. We conclude that the AAT did not give real consideration to the factor of general deterrence as it related to the individual circumstances of Mr Lafu's case.

51    The first respondent sought to distinguish Lafu from the present case, particularly bearing in mind that Lafu was dealing with a different Ministerial direction which could be distinguished in form and content from Direction 41. Whilst acknowledging these distinctions, it seems to me that the reasoning of the Full Court in Lafu is applicable to the present case.

52    Although the Tribunal identified the second and third primary considerations in its reasons, it did so in terms which did no more than recite, in each case, the uncontroversial facts that the first respondent was not a minor when he began living in Australia, and that he arrived in Australia in 2008 and committed the offences for which he was imprisoned on 7 June 2009. It is impossible to tell from the Tribunal’s reasons whether and, if so, how those facts were taken into account or what role they played in the Tribunal’s decision-making. In this connection, the first respondent accepted in oral submissions that each of the second and third primary considerations was relevant to the Tribunal’s decision-making.

53    The first respondent advanced a submission in relation to the third primary consideration that the Tribunal’s consideration of that factor can be taken as having been subsumed in findings of greater generality in relation to the non-primary considerations: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 at [47]. I do not accept that submission. It is clear from the Tribunal’s reasons that the extent of its consideration of the third primary consideration was contained within [44] of its reasons which I have quoted above.

54    In the end result, I am satisfied that the Minister has made out the first ground of review in his application and has established that the Tribunal’s decision is vitiated by jurisdictional error.

55    Given this finding, it is not necessary for me to express a conclusion on the second ground of review in the Minister’s application. Nevertheless, for completeness, I shall do so.

56    It seems to me that the reasoning which leads to my conclusion on the first ground of review also leads to the conclusion that the Minister was denied procedural fairness. The Tribunal failed to respond to the substantial, clearly articulated arguments advanced by the Minister on the second and third primary considerations: Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at [24] and [95]. This failure also constituted a jurisdictional error.

disposition

57    The application should be allowed and orders made as sought in the application.

Associate:

Dated:    4 March 2013