FEDERAL COURT OF AUSTRALIA

Williams v Minister for Immigration and Border Protection [2014] FCA 674

THE COURT ORDERS THAT:

1.    Leave is granted for the applicant to rely on the amended originating application, filed on 4 April 2014.

2.    The application is dismissed.

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

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

REASONS FOR JUDGMENT

INTRODUCTION AND PROCEDURAL HISTORY

1        The applicant, Mr Williams, is a citizen of New Zealand. Since he was nine years old, he has lived in Australia with his family as a holder of a Special Category (Temporary) (Class TY) visa, subclass 444 (Special Category). When he was 18, his parents left Australia to live in New Zealand, and remained there at the time of the decision of the Administrative Appeals Tribunal (the Tribunal) which the applicant seeks to appeal in this Court.

2        Now 25 years old, the applicant has a considerable criminal history, including a history of violent offending, both as a minor and as an adult. Relevantly, on 16 August 2011, the applicant was convicted in the County Court of Victoria of intentionally causing serious injury, recklessly causing serious injury, common law assault, theft and aggravated burglary. The applicant was sentenced to an effective term of imprisonment of 43 months, with a minimum non-parole period of 15 months. In December 2011, the applicant was convicted of various serious driving offences and further theft-related offences, and was sentenced to an effective term of a further six months of imprisonment, to be served concurrently with his earlier sentence.

3        On 16 October 2012, pursuant to s 501(2) of the Migration Act 1958 (Cth) (the Migration Act), a delegate of the then Minister for Immigration and Citizenship cancelled the applicant’s visa on the basis that, by virtue of his “substantial criminal record”, the Minister was not satisfied that the applicant passed the character test set out in s 501 of the Migration Act. The applicant was released on parole on 15 November 2012 and placed immediately into immigration detention.

4        Shortly prior to his release on parole, on 5 November 2012 the applicant applied to the Tribunal for review of the Minister’s decision, which was affirmed by the Tribunal on 16 January 2013. The applicant then applied for review of the decision in this Court under s 476A of the Migration Act. On 19 July 2013, this Court delivered judgment in favour of the applicant, and ordered that the matter be remitted to the Tribunal: Williams v Minister for Immigration and Citizenship (2013) 136 ALD 299; [2013] FCA 702.

5        On 20 December 2013, the Tribunal (differently constituted) again affirmed the Minister’s decision of 15 October 2012 to cancel the applicant’s visa. On 6 January 2014, the applicant applied to this Court for judicial review of that decision. At the commencement of the hearing, leave was granted to the applicant (which the first respondent did not oppose) to rely upon an amended originating application, filed with the Court on 4 April 2014.

6        For the reasons set out below, I have concluded that the Tribunal’s decision is not affected by jurisdictional error. Accordingly, the application will be dismissed.

RELEVANT ASPECTS OF THE LEGISLATIVE SCHEME

7        The Minister’s cancellation power in issue in this proceeding is found in s 501(2) of the Migration Act, which provides:

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

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

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

8        By s 500 of the Migration Act, and subject to some exceptions which are not presently relevant, a person may apply to the Tribunal for review of an unfavourable decision by the Minister. The Migration Act modifies some of the powers the Tribunal has in relation to the conduct of its hearings. Section 500 provides:

(1) Applications may be made to the Administrative Appeals Tribunal for review of:

(a) decisions of the Minister under section 200 because of circumstances specified in section 201; or

(b) decisions of a delegate of the Minister under section 501; or

(c) a decision to refuse to grant a protection visa, or to cancel a protection visa, relying on:

(i) one or more of the following Articles of the Refugees Convention, namely, Article 1F, 32 or 33(2); or

(ii) paragraph 36(2C)(a) or (b) of this Act;

other than decisions to which a certificate under section 502 applies.

(2) A person is not entitled to make an application under paragraph (1)(a) unless:

(a) the person is an Australian citizen; or

(b) the person is a lawful non‑citizen whose continued presence in Australia is not subject to any limitation as to time imposed by law.

(3) A person is not entitled to make an application under subsection (1) for review of a decision referred to in paragraph (1)(b) or (c) unless the person would be entitled to seek review of the decision under Part 5 or 7 if the decision had been made on another ground.

(4) The following decisions are not reviewable under Part 5 or 7:

(a) a decision under section 200 because of circumstances specified in section 201;

(b) a decision under section 501;

(c) a decision to refuse to grant a protection visa, or to cancel a protection visa, relying on:

(i) one or more of the following Articles of the Refugees Convention, namely, Article 1F, 32 or 33(2); or

(ii) paragraph 36(2C)(a) or (b) of this Act.

(4A) The following decisions are not reviewable under this section, or under Part 5 or 7:

(a) a decision to refuse to grant a protection visa relying on subsection 36(1B);

(b) a decision to cancel a protection visa because of an assessment by the Australian Security Intelligence Organisation that the holder of the visa is directly or indirectly a risk to security (within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979).

(5) In giving a direction under the Administrative Appeals Tribunal Act 1975 as to the persons who are to constitute the Tribunal for the purposes of a proceeding for review of a decision referred to in subsection (1), the President must have regard to:

(a) the degree of public importance or complexity of the matters to which that proceeding relates; and

(b) the status of the position or office held by the person who made the decision that is to be reviewed by the Tribunal; and

(c) the degree to which the matters to which that proceeding relates concern the security, defence or international relations of Australia; and

(d) if:

(i) the person to whom the decision relates has been convicted of, or sentenced for, an offence; and

(ii) that conviction or sentence is relevant to the matters to which that proceeding relates;

the seriousness of that offence; and

(e) if:

(i) the person to whom the decision relates has been acquitted of an offence on the grounds of unsoundness of mind or insanity, and as a result the person has been detained in a facility or institution; and

(ii) that acquittal is relevant to the matters to which that proceeding relates;

the seriousness of that offence;

and must not have regard to any other matters.

(5A) Section 23B of the Administrative Appeals Tribunal Act 1975 does not apply in relation to a proceeding for review of a decision referred to in subsection (1) of this section.

(6) Where an application has been made to the Tribunal for the review of a decision under section 200 ordering the deportation of a person, the order for the deportation of the person shall not be taken for the purposes of section 253 to have ceased or to cease to be in force by reason only of any order that has been made by:

(a) the Tribunal; or

(b) a presidential member under section 41 of the Administrative Appeals Tribunal Act 1975; or

(c) the Federal Court of Australia or a Judge of that Court under section 44A of that Act; or

(d) the Federal Circuit Court of Australia or a Judge of that Court under section 44A of that Act.

(6A) If a decision under section 501 of this Act relates to a person in the migration zone, section 28 of the Administrative Appeals Tribunal Act 1975 does not apply to the decision.

(6B) If a decision under section 501 of this Act relates to a person in the migration zone, an application to the Tribunal for a review of the decision must be lodged with the Tribunal within 9 days after the day on which the person was notified of the decision in accordance with subsection 501G(1). Accordingly, paragraph 29(1)(d) and subsections 29(7), (8), (9) and (10) of the Administrative Appeals Tribunal Act 1975 do not apply to the application.

(6C) If a decision under section 501 relates to a person in the migration zone, an application to the Tribunal for a review of the decision must be accompanied by, or by a copy of:

(a) the document notifying the person of the decision in accordance with subsection 501G(1); and

(b) one of the sets of documents given to the person under subsection 501G(2) at the time of the notification of the decision.

(6D) If:

(a) an application is made to the Tribunal for a review of a decision under section 501 of this Act; and

(b) the decision relates to a person in the migration zone;

section 37 of the Administrative Appeals Tribunal Act 1975 does not apply in relation to the decision.

(6E) If:

(a) an application is made to the Tribunal for a review of a decision under section 501 of this Act; and

(b) the decision relates to a person in the migration zone;

the Registrar, a District Registrar or a Deputy Registrar of the Tribunal must notify the Minister, within the period and in the manner specified in the regulations, that the application has been made. Accordingly, subsection 29(11) of the Administrative Appeals Tribunal Act 1975 does not apply in relation to the application.

(6F) If:

(a) an application is made to the Tribunal for a review of a decision under section 501 of this Act; and

(b) the decision relates to a person in the migration zone;

then:

(c) the Minister must lodge with the Tribunal, within 14 days after the day on which the Minister was notified that the application had been made, 2 copies of every document, or part of a document, that:

(i) is in the Minister’s possession or under the Minister’s control; and

(ii) was relevant to the making of the decision; and

(iii) contains non‑disclosable information; and

(d) the Tribunal may have regard to that non‑disclosable information for the purpose of reviewing the decision, but must not disclose that non‑disclosable information to the person making the application.

(6G) If:

(a) an application is made to the Tribunal for a review of a decision under section 501 of this Act; and

(b) the decision relates to a person in the migration zone;

the Tribunal must not:

(c) hold a hearing (other than a directions hearing); or

(d) make a decision under section 43 of the Administrative Appeals Tribunal Act 1975;

in relation to the decision under review until at least 14 days after the day on which the Minister was notified that the application had been made.

(6H) If:

(a) an application is made to the Tribunal for a review of a decision under section 501; and

(b) the decision relates to a person in the migration zone;

the Tribunal must not have regard to any information presented orally in support of the person’s case unless the information was set out in a written statement given to the Minister at least 2 business days before the Tribunal holds a hearing (other than a directions hearing) in relation to the decision under review.

(6J) If:

(a) an application is made to the Tribunal for a review of a decision under section 501; and

(b) the decision relates to a person in the migration zone;

the Tribunal must not have regard to any document submitted in support of the person’s case unless a copy of the document was given to the Minister at least 2 business days before the Tribunal holds a hearing (other than a directions hearing) in relation to the decision under review. However, this does not apply to documents given to the person or Tribunal under subsection 501G(2) or subsection (6F) of this section.

(6K) If:

(a) an application is made to the Tribunal for a review of a decision under section 501 of this Act; and

(b) the decision relates to a person in the migration zone; and

(c) the Tribunal is of the opinion that particular documents, or documents included in a particular class of documents, may be relevant in relation to the decision under review;

then:

(d) the Tribunal may cause to be served on the Minister a notice in writing stating that the Tribunal is of that opinion and requiring the Minister to lodge with the Tribunal, within a time specified in the notice, 2 copies of each of those documents that is in the Minister’s possession or under the Minister’s control; and

(e) the Minister must comply with any such notice.

(6L) If:

(a) an application is made to the Tribunal for a review of a decision under section 501 of this Act; and

(b) the decision relates to a person in the migration zone; and

(c) the Tribunal has not made a decision under section 42A, 42B, 42C or 43 of the Administrative Appeals Tribunal Act 1975 in relation to the decision under review within the period of 84 days after the day on which the person was notified of the decision under review in accordance with subsection 501G(1);

the Tribunal is taken, at the end of that period, to have made a decision under section 43 of the Administrative Appeals Tribunal Act 1975 to affirm the decision under review.

(7) In this section, decision has the same meaning as in the Administrative Appeals Tribunal Act 1975.

(8) In this section:

business day means a day that is not:

(a) a Saturday; or

(b) a Sunday; or

(c) a public holiday in the Australian Capital Territory; or

(d) a public holiday in the place concerned.

9         The restrictions on reliance on further information and material, as set out in ss 500(6H), (6J) and (6L), are relevant to the applicant’s grounds of review in this proceeding.

10        The function of the Tribunal in reviewing a cancellation decision is also raised by the grounds of review in this case. Section 25 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) relevantly provides:

25 Tribunal may review certain decisions

Enactment may provide for applications for review of decisions

(1) An enactment may provide that applications may be made to the Tribunal:

(a) for review of decisions made in the exercise of powers conferred by that enactment; or

(b) for the review of decisions made in the exercise of powers conferred, or that may be conferred, by another enactment having effect under that enactment.

…

(3) Where an enactment makes provision in accordance with subsection (1) or (2), that enactment:

(a) shall specify the person or persons to whose decisions the provision applies;

(b) may be expressed to apply to all decisions of a person, or to a class of such decisions; and

(c) may specify conditions subject to which applications may be made.

…

Tribunal’s power to review decisions

(4) The Tribunal has power to review any decision in respect of which application is made to it under any enactment.

…

Enactment may add to, exclude or modify operation of certain provisions

(6) If an enactment provides for applications to the Tribunal:

(a) that enactment may also include provisions adding to, excluding or modifying the operation of any of the provisions of sections 27, 29, 32, 33 and 35 or of subsection 41(1) or 43(1) or (2) in relation to such applications; and

(b) those sections and subsections have effect subject to any provisions so included.

11        Section 43(1) of the AAT Act provides as follows:

Tribunal’s decision on review

(1) For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision and shall make a decision in writing:

(a) affirming the decision under review;

(b) varying the decision under review; or

(c) setting aside the decision under review and:

(i) making a decision in substitution for the decision so set aside; or

(ii) remitting the matter for reconsideration in accordance with any directions or recommendations of the Tribunal.

12        Thus, the Tribunal’s jurisdiction is conferred by s 25(4) and its general powers by s 43(1). Where the Tribunal is conducting a review of a cancellation decision under s 501(2), the grounds of review in this application raise the operation and applicability of a direction given by the Minister pursuant to s 499 of the Migration Act. Section 499 of the Migration Act confers a power on the Minister to issue directions in the following terms:

(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.

…

(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).

THE MINISTERIAL DIRECTION

13        The Minister has issued directions under s 499(1) in relation to the exercise of the discretion conferred by s 501. There was no dispute between the parties that the relevant direction is entitled “Direction No 55 — Visa Refusal and Cancellation under s 501” (the Direction).

14        The Direction sets out in considerable detail the executive’s policy position in relation to cancellation decisions under s 501: the terms of s 499(2A) are the means by which government policy in this respect is given mandatory effect. The Direction constitutes a significant constraint on the manner in which the discretion conferred by s 501 is exercised, and it is the clear intention of the section read as a whole that such constraints may be placed around the exercise of the discretion.

15        Paragraph 6.3 sets out a framework of principles in which the process for which the Direction provides is to be applied:

(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on noncitizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

(2) A non-citizen who has committed a serious crime, including of a violent or

sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

(3) In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.

(4) Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.

(5) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.

(6) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen's visa should be cancelled, or their visa application refused.

16        Against that framework, para 7 of the Direction requires a decision-maker to engage in two principal tasks:

(1) Informed by the principles in paragraph 6.3 above, a decision-maker:

a) must take into account the considerations in Part A or Part B, where relevant, in order to determine whether a non-citizen will forfeit the privilege of being granted, or of continuing to hold, a visa; and

b) is required to determine whether the risk of future harm by a non-citizen is unacceptable. This requires a balancing exercise, involving a consideration of the likelihood of any future harm, the extent of the potential harm should it occur, and the extent to which, if at all, any risk of future harm should be tolerated by the Australian community.

17        This application concerns the manner in which the Tribunal approached the task in para 7(1)(a).

18        The Direction then sets out the mandatory considerations, to which para 7(1)(a) refers. Those considerations are divided into two categories: Part A applying to visa holders, and Part B applying to visa applicants. Only the former is relevant in the current proceeding. Part A is divided into two principal paragraphs dealing with “primary considerations” and “other considerations”. Four “primary considerations” are specified: protection of the Australian community from criminal or other serious conduct; the strength, duration and nature of the person’s ties to Australia; the best interests of minor children in Australia and whether Australia has international non-refoulement obligations to the person.

19        The first two of those primary considerations are material to the ground of review in this appeal. In relation to those two considerations, the Direction provides:

9.1 Protection of the Australian community

(1) When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.

(2) Decision-makers should also give consideration to:

a) The nature and seriousness of the person’s conduct to date;

and

b) The risk to the Australian community should the person

commit further offences or engage in other serious conduct.

9.1.1 The nature and seriousness of the conduct

(1) In considering the nature and seriousness of the person’s criminal offending or other conduct to date, decision-makers must have regard to factors including:

a) The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;

b) The principle that crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;

c) Where the person is in Australia, that a crime committed while the person was in immigration detention; during an escape from immigration detention; or after the person escaped from immigration detention, but before the person

was taken into immigration detention again is serious, as is an offence against section 197 A of the Act;

d) The principle that any conduct that forms the basis for a finding that a person does not pass the character test under s 501(6)(b) or (d), or is not of good character under s 501 (6)( c), is considered to be serious;

e) The sentence imposed by the courts for a crime or crimes;

f) The frequency of the person's offending and whether there is any trend of increasing seriousness;

g) The cumulative effect of repeated offending;

h) Whether the person has provided false or misleading information to the Department, including by not disclosing prior criminal offending;

i) Whether the person has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the person's migration status (noting that the absence of a warning should not be considered to be in the person's favour);

j) Where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.

9.1.2 The risk to the Australian community should the person commit

further offences or engage in other serious conduct

(1) In considering whether the person represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable. In making this assessment, decision-makers must have regard to, cumulatively:

a) The nature of the harm to individuals or the Australian community should the person engage in further criminal or other serious conduct; and

b) The likelihood of the person engaging in further criminal or other serious conduct, taking into account:

i. information and evidence on the risk of the person reoffending; and

ii. evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).

9.2 Strength, duration and nature of the person’s ties to Australia

(1) Reflecting the principles at 6.3, decision-makers must have regard to:

a) How long the person has resided in Australia, including whether the person arrived as a young child, noting that:

i. Less weight should be given where the person began offending soon after arriving in Australia; and

ii. More weight should be given to time the person has spent contributing positively to the Australian community.

b) The strength, duration and nature of any family, social and/or employment links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.

20        Paragraph 10, which deals with “other considerations”, is expressly indicated to be inclusive but not exhaustive, reflecting the broad and general nature of the discretion in its terms in s 501(2). Its terms are in issue in at least one respect in the grounds of review. Paragraph 10 relevantly provides:

(1) In deciding whether to cancel a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):

a) Effect of cancellation of the person's visa on the person’s immediate family in Australia, if those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely;

b) Impact on Australian business interests;

c) Impact of a decision not to cancel a visa on members of the Australian community, including victims of the person’s criminal behaviour, and the family members of the victim or victims where that information is available and the person being considered for visa cancellation has been afforded procedural fairness;

d) The extent of any impediments that the person may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:

i. The person's age and health;

ii. Whether there are substantial language or cultural barriers; and

iii. Any social, medical and/or economic support available to them in that country.

21        The second principal task to which para 7(1)(b) refers was carried out by the Tribunal and no ground of review is raised in respect of it.

The legal character of the Direction

22        Given some of the contentions made by the applicant it is necessary to deal with the legal status of the Direction.

23        For many decades, decision-making concerning deportation from Australia or visa cancellation for persons convicted of criminal offences has involved the application of significant policy considerations, often set at ministerial level. Some of the earliest cases dealt with by the Administrative Appeals Tribunal concerned how the Tribunal should exercise its powers in the face of these policies, as the extracts from Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, which I set out at [69] below, illustrate.

24        In Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 50 FCR 189, a Full Court of this Court considered the consequences of a misinterpretation or misapplication of criminal deportation policy. Having characterised (at 208) the reasoning in Drake (No 2) 2 ALD 634 as identifying ministerial policy as a relevant consideration, French and Drummond JJ said:

The question arises whether a misapplication or misconstruction of the Ministerial policy by the Tribunal gives rise to error which is reviewable on appeal to this court as an error of law. It must be accepted, as counsel for the Minister submitted, that Ministerial policy is not to be construed and applied with the nicety of a statute. Policies are not statutory instruments. They prescribe guidelines in general, and not always very precise, language. To apply them with statutory nicety is to misunderstand their function. On the other hand, where the existence and content of such a policy is to be regarded as a relevant fact which the Tribunal is bound to consider, a serious misconstruction of its terms or misunderstanding of its purposes in the course of decision-making may constitute a failure to take into account a relevant factor and for that reason may result in an improper exercise of the statutory power. If a decision-maker, not bound to apply policy, purports to apply it as a proper basis for disposing of the case in hand but misconstrues or misunderstands it so that what is applied is not the policy but something else, then there may be reviewable error. In a limiting case a policy may be so broadly stated as to cover all considerations properly brought to bear on the exercise of the discretion. In such a case misconstruction of the policy may reduce to misconstruction of the statute or misunderstanding of its purpose. In so saying, the Court accepts that the limits within which its jurisdiction to review decisions of the Tribunal is conferred require that it be exercised with restraint. In particular, the Court will not be concerned with looseness in the language of the Tribunal nor with unhappy phrasing of the Tribunal’s thoughts. The reasons for its decision are not to be construed minutely and finely with an eye keenly attuned to the perception of error: Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 286-287.

25        In this extract, French and Drummond JJ drew an express distinction between ministerial policy and a statutory instrument, although ultimately their Honours concluded that the policy had sufficient legal effect for a misapplication or misinterpretation of it to be capable of constituting legal error.

26        The legal difference between an executive policy promulgated at ministerial level and an executive policy promulgated at ministerial level which then becomes a direction under a provision such as s 499, in particular given the terms of s 499(2A), has not been fully explored in the authorities. The analysis may have been complicated by the introduction of the Legislative Instruments Act 2003 (Cth) (LIA) and the capacity of a document to become, by force of s 5(3) of that Act, a legislative instrument and a document with at least a deemed legislative character. Characterisation as a legislative instrument can influence the approach to construction and application of the instrument (see ss 2, 15AE, 46), and is capable of affecting the legal consequences of misinterpretation or misapplication of it.

27        By s 499(3), the Minister must lay a direction before each house of Parliament, but there is no provision for disallowance. Tabling may thus be seen as a form of accountability and transparency for which the legislation provides, rather than an indication of the legal character of the direction, just as, in respect of earlier executive policies about deportation or visa cancellation, the responsible Minister announced the policy in Parliament: see, eg, Re Becker and Minister for Immigration and Ethnic Affairs (1977) 1 ALD 158 at 164 per Brennan J.

28        Previous ministerial directions in relation to the powers in s 501 have been registered and therefore affected by the deeming provision in s 5(3) of the LIA. Other current ministerial directions made under s 499 are also registered. Direction No 55 is not registered. In my opinion that fact does not necessarily mean the Direction is not legislative in character.

29        An executive decision whether or not to register a direction is not capable of changing the character of the direction itself, whether by reason of the definition of “legislative instrument” in the LIA, or by application of general law principles.

30        Its character is drawn from the nature and content of the power which is exercised under s 499. The character is important as I have said: first, because it affects the approach to construction (cf Gray 50 FCR 189) and, second, because it may affect the consequences of misinterpreting or misapplying a direction, although to some extent those consequences may be said to flow from the mandatory effect of s 499(2A).

31        The definition in s 5(1) of the LIA incorporates the approach of well-established authorities such as Queensland Medical Laboratory v Blewett (1988) 84 ALR 615 to the question of when an instrument has a legislative character. The effect of s 499(2A) may well be important in the characterisation of a ministerial direction under s 499. Provisions such as s 7 of the LIA take certain instruments outside the definition. Item 21 of the Table in s 7 may include ministerial directions under s 499 although the fact that those directions, on the present state of authority, extend to the Tribunal may mean Item 21 is inapplicable. If a ministerial direction under s 499 is a legislative instrument, failure to register it renders it unenforceable by or against the Commonwealth, or by or against any other person or body: see s 31. This in turn raises an issue about the relationship between s 499(2A) and the prohibition in s 31 of the LIA. At least one Full Court decision appears to have assumed a direction is a legislative instrument, although not Direction No 55: see Milne v Minister for Immigration and Citizenship (2011) 120 ALD 405; [2011] FCAFC 41 at [54].

32        These are questions of some complexity, which were not argued in this proceeding. Both parties submitted the Direction was not a legislative instrument, but it is unclear whether the basis for this submission extended beyond the fact of non-registration when compared to previous s 501 directions. If so, the effect of s 31 of the LIA (and its effect if any on the obligation in s 499(2A)) would need to be considered, if the Direction is otherwise within the definition in s 5 of the LIA.

33        Ultimately I have concluded it is unnecessary to decide these questions in this proceeding. That is for two reasons. First, there is no issue of construction raised by the grounds of review in this case which in my opinion could be resolved differently depending on the character of the Direction. Second, although in my opinion the character of this Direction is likely to be significant in ascertaining whether a misinterpretation of it could render a decision without jurisdiction, there are several authorities in this Court which, although without analysis of the matters to which I have referred, have assumed a jurisdictional error can arise.

34        Authorities in this Court have expressly accepted that a failure to comply with ministerial directions made under s 499 can constitute a jurisdictional error: see Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583; [1999] FCA 1238 at [23] per Whitlam and Gyles JJ; Cockrell v Minister for Immigration and Citizenship (2008) 171 FCR 345; [2008] FCAFC 160 at [27]-[28]; Minister for Immigration and Citizenship v Obele (2010) 119 ALD 358; [2010] FCA 1445 at [53] per Katzmann J.

35        Several Full Court decisions have treated this particular Direction as not only binding on the Tribunal, but also as the source of potential jurisdictional errors for non-compliance: see Uelese v Minister for Immigration and Citizenship (2013) 60 AAR 534; [2013] FCAFC 86; Demillo v Minister for Immigration and Border Protection [2013] FCAFC 134; Paerau v Minister for Immigration and Border Protection [2014] FCAFC 28.

36        The question of the relationship between a ministerial direction and the function or power on which it operates is an important one. The directions power in s 499 is broadly expressed and capable of operating in a variety of ways, with a greater or lesser impact on the relevant power or function under the Migration Act. Since its amendment in 1998, it is capable on its terms of being exercised to give specific directions in respect of a circumstance, or even perhaps an individual. A direction could, for example, concern a matter of process in terms of making a decision under the Migration Act. It could concern the manner of exercise of one of the detention powers. It could concern the way an officer is to deal with the receipt of a visa application. In some circumstances, the compliance required by s 499(2A) may be straightforward.

37        The applicant submitted that the effect of this particular Direction is to supply the content for the exercise of the discretion contain in s 501 of the Migration Act. I accept that submission subject to the qualification that the Direction does not evince an intention to exhaust the permissible matters which may be taken into account in making a cancellation decision: see the terms of para 10(1) to which I have earlier referred.

38        In para 6.1(3), the Direction describes its role as

to guide decision makers performing functions or exercising powers under section 501 of the Act to refuse to grant a visa to, or to cancel the visa of, a person who does not satisfy the Minister that the person passes the character test.

39        Paragraphs 6.2 and 6.3 of the Direction, respectively entitled “General Guidance” and “Principles”, are expressed in terms of any policy formulated by the executive government to guide administrative decision-making. To this point, and taking into account the terms of para 6.1(3), the Direction does purport to offer “guidance” only.

40        Thereafter, however, in my opinion the remainder of the Direction is intended to, and does more than, “offer guidance”. This is especially so when s 499(2A) is taken into account. The Direction prescribes, to a significant extent, how the discretion in s 501 is to be exercised. Indeed that is how the heading to para 7 is expressed. It does this by setting out a range of “mandatory considerations” in Part A (read with para 7(1)(a)), none of which s 501(2) itself expressly provides for: see, relevantly as to cancellation rather than refusal, Part A of the Direction in paras 9 and 10. It also directs a decision-maker as to which of those considerations the decision-maker should attribute more weight: see paras 8(2) and 8(4).

41        It can be seen that it is through para 7(1)(a) that the obligation to consider the matters in Part A and Part B is imposed. It is not imposed by the statute, but rather only by force of the Direction, read with s 499(2A). By para 7(1)(b) the Minister has decided to give the otherwise very broadly expressed and unconfined discretions in ss 501(1) and (2) specific content, and to specify the ultimate task to be performed by the decision-maker in exercising the discretion: namely, to decide whether the risk of future harm by a non-citizen is unacceptable. Again, if that task is intended by the statute to be required in the exercise of discretion, that is an implication to be drawn from the scope, subject matter and purpose of this part of the Migration Act. The express focus on this in the exercise of the s 501 discretion as the principal and, one might say, overriding objective is a creature of executive policy. Subject to any constitutional or other fundamental considerations, so long as it is not inconsistent with the statute or the regulations (see s 499(2)) it will be valid.

42         It was not argued that the content of this Direction constituted an unlawful fetter on the s 501 discretion or was otherwise invalid. Arguments to similar effect in relation to other ministerial directions have met with mixed results: see, eg, Madafferi v Minister for Immigration and Multicultural Affairs (2002) 118 FCR 326; [2002] FCAFC 220 at [99]; cf Howells v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 580; [2004] FCAFC 327 at [128]-[129], [134]; Shaw v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 142 FCR 502; [2005] FCAFC 106 at [87].

43        Nor was it argued that the content of this Direction engaged the prohibition or limit in s 499(2). The Direction does stipulate that certain matters are to be “mandatory considerations” which a decision-maker must take into account. A direction by the Minister to a delegate, or to the Tribunal, that a consideration must be taken into account in exercising the power under s 501 of the Migration Act, may well be inconsistent with the Act if the scope, subject matter and purpose of s 501, properly construed, do not render that consideration a mandatory one. In other words, the operation of s 499(2), and, no doubt, general principles of interpretation, mean that the Minister cannot by a direction transform a consideration into a mandatory one if the Migration Act does not otherwise make it so. Again, these matters were not the subject of argument in this proceeding and their resolution should await an appropriate case.

44        Putting then to one side any questions about the validity of the Direction, nevertheless its nature and reach is intended to be an important control on the way in which the s 501 discretion is exercised.

THE TRIBUNAL’S DECISION AND THE APPLICATION FOR REVIEW

45        The Tribunal considered itself as much bound by the Direction in the way it conducted its review of the delegate’s decision as the delegate was. This approach founds the first ground of review and I deal with it in more detail below.

46        The Tribunal recited the applicant’s history of offending, noting the sentences imposed on him at various times. It noted there were two principal sets of convictions. The first was in August 2011, when the applicant was 22 years old, for which he sentenced to imprisonment for 43 months with a minimum non-parole period of 15 months. The second set was in December 2011, for which he was sentenced to imprisonment for “slightly in excess” of 27 months, to be served concurrently with the August 2011 sentences. Both sets of convictions related to violent offences, drink driving and burglary or theft. The Tribunal also noted the applicant’s earlier offending between June 2004 and December 2008, which also involved physical violence, burglary and drink driving.

47        Having set out the relevant aspects of the Migration Act and the Direction, the Tribunal then reviewed sequentially each primary consideration, and its components, in Part A of the Direction. The Tribunal characterised the offences as “extremely serious” and noted in particular that they involved physical violence. The strength of its views about the applicant’s conduct are apparent from the following finding:

Mr Williams’ repeated acts of extreme violence and the brutality of the unprovoked nature of the attacks make the nature of his conduct of particular concern.

48        The Tribunal addressed the nature of the harm to individuals or the Australian community should the applicant reoffend and described it also as “extremely serious”, taking into account the nature of the criminal conduct in which the applicant had engaged in the past. In its reasons it then spent some time assessing the second limb of the risk assessment, which is the likelihood of any reoffending, taking into account the evidence of a psychologist, Mr Simmons, who provided two reports to the Tribunal in August 2011 and October 2013 and gave evidence at the hearing.

49        The Tribunal concluded that, although the applicant was genuine in his intention not to reoffend, the applicant’s repeated references to the influence of others on his decisions to engage in criminal conduct, and what the Tribunal concluded was a low level of proposed family and social support, caused the Tribunal to have some reservations about the effectiveness of the support to be offered on the evidence.

50        Of Mr Simmons’ evidence, the Tribunal concluded:

I have given careful consideration to the views expressed by Mr Simmons, who assessed Mr Williams as late as October 2013. Mr Simmons assessed the risk of Mr Williams’ reoffending as moderate, with dynamic factors suggesting that the level of risk was in fact lower. He was critical of the VISAT testing which indicated the level of risk was high. However in cross-examination, Mr Simmons agreed that having been made aware of more detail of Mr Williams’ history, his scoring on the VRAG scale placed him in the section of the population in the moderate to high risk range of re-offending. I accept that the various scales do not assess an individual’s risk of re-offending. I do not accept Mr Simmons’ evidence that the risk of Mr Williams’ reoffending was in the low-moderate range as he did not have available to him all of the relevant information to make such an assessment.

51        The way the Tribunal dealt with Mr Simmons’ evidence is the subject of a ground of review in this proceeding.

52        The Tribunal concluded that there was a “reasonable likelihood” the applicant would engage in further criminal or serious conduct involving physical violence. It then moved on to consider the applicant’s ties to Australia and found that, especially given his parents were resident in New Zealand and had moved there when the applicant was a teenager, the applicant’s ties to Australia should be given minimal weight, and his other ties to Australia in terms of his siblings and friends were not strong. I note from the evidence the applicant was in fact 18 when his parents moved to New Zealand in 2007, not 16, as the Tribunal’s reasons state, but this factual error by the Tribunal is not material.

53        There is no challenge to the Tribunal then not dealing specially with the other primary considerations in the Direction, none of which were relevant to the applicant’s circumstances. It moved on to consider the matters in para 10 and in particular paras 10(1)(a), (c) and (d). It found there were no significant effects on his family. In terms of his prospects of establishing himself in New Zealand, it found he would have the assistance of his parents to do so. As to his employment prospects and economic support, it found (at [81]-[82]):

In his statement dated 6 January 2013, Mr Williams’ father, Reverend Abela Williams, stated that if Mr Williams is deported he and his wife will remain in New Zealand at the end of his posting and provide accommodation for Mr Williams. On the basis of the statement of Reverend Williams I am satisfied that Mr Williams has reasonable prospects of obtaining at least seasonal employment in the fruit-growing industry in the area in which his parents are likely to be living.

Mr Williams is young and enjoys good health. There are no language or social barriers which he would experience if he was required to return to New Zealand. As a citizen of that country he will be entitled to such support as is provided by the government.

54        Its conclusions on the review were adverse to the applicant and expressed (at [84]-[87]) in the following way:

I have reached the conclusion that the consideration which should be given the greatest weight in this application is the need to protect the Australian community from the type of conduct in which Mr Williams has engaged on more than one occasion. I have regard to the principle that the Government is committed to the protection of the community. Further, I have taken into account that a person who commits a violent crime should generally expect to forfeit the privilege of staying in Australia.

I have determined that Mr Williams’ conduct is extremely serious in its nature with the potential of very serious injury or death to others should it be repeated. I am satisfied that there is a reasonable likelihood that Mr Williams will re-offend.

The consideration of Mr Williams’ ties to Australia is of lesser importance for the reasons I have stated. Taking into account the support which his parents will provide to him on his return to New Zealand, the other considerations set out in Direction No. 55 are of minimal weight.

Having taken into account all of the relevant considerations I have come to the conclusion that the risk of future harm which would be incurred if Mr Williams was allowed to remain in Australia is unacceptable and he should forfeit the privilege to continue to hold a visa.

55        The applicant applied for review of the Tribunal’s decision on 6 January 2014. He was by this time in immigration detention, and applied for judicial review without legal representation. The Court made a referral under r 4.12 of the Federal Court Rules 2011 (Cth) and the applicant had the benefit of representation by two counsel who made written and oral submissions on his behalf and appeared at the hearing. Once counsel was retained, an amended application for review was filed without opposition from the first respondent, and relied upon at the hearing.

THE APPLICANT’S GROUNDS OF REVIEW

56        In his amended application for review, the applicant raised three grounds of review, with the third ground covering several aspects of the way the Tribunal applied the Direction.

57        The first ground contends that the Tribunal erred by regarding itself as bound by the Direction, when s 499 was not on its proper construction capable of binding the Tribunal.

58        The second ground contends that the applicant was denied procedural fairness because the Tribunal did not notify the applicant and give him an opportunity to respond to an adverse finding it made: namely that, based on the witness statement of the applicant’s father, the applicant had reasonable prospects of obtaining seasonal employment in the fruit-growing industry around Hastings in New Zealand.

59        The third ground, as I have noted, concerned the manner in which the Tribunal applied the Direction. It assumes, against the applicant’s first argument, that the Direction was binding on the Tribunal. The applicant submits that, in five different ways, the Tribunal “misinterpreted or misapplied” the Direction.

CONSIDERATION

The section 499 argument

60        The applicant contends that because, in its terms, s 499 provides only for the giving of directions to persons or bodies having functions or powers under the Migration Act, it cannot apply to the Tribunal, because the source of the Tribunal’s functions and powers is s 43 of the AAT Act. In support of that contention, the applicant relies on the judgment of French J (as his Honour then was) in Powell v Administrative Appeals Tribunal (1998) 89 FCR 1. In Powell, his Honour said (at 11-12):

Section 500(1) of the Act provides for applications to be made to the Tribunal in respect of decisions of the Minister under s 501. The decision-making power of the Tribunal, however, is to be found in s 43 of the Administrative Appeals Tribunal Act. This requires consideration of the character of the decision which is made by the Tribunal. Pursuant to s 43(1) the Tribunal “may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision”. It has been said, by virtue of this provision, that the Tribunal stands in place of the decision-maker whose decision is under review: Otter Goldmines Ltd v Australian Securities Commission (1997) 26 AAR 99; 25 ASCR 382; Liedig v Commissioner of Taxation (Cth) (1994) 50 FCR 461; 121 ALR 561; Commissioner of Taxation (Cth) v Swift (1989) 20 ATR 1434; 18 ALD 679; Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409; 24 ALR 577. The Tribunal is empowered to do what the decision-maker under review could do. The source of its power is s 43(1) albeit it is ambulatory in form. The content of the power it confers is defined by the particular enactment under which the decision to review was made. It may be arguable that where the Tribunal substitutes a new decision for the old it can be said to exercise power under the relevant enactment. I am inclined to the contrary view that even in that case it exercises power conferred by s 43(1) of the Administrative Appeals Tribunal Act and that in doing so it cannot be regarded as exercising power under the other enactment. However that may be, when the Tribunal affirms a decision in my opinion it exercises a power conferred by s 43(1)(a). It does not exercise afresh the power conferred by the enactment under which the decision reviewed was made.

61        The applicant notes in Madafferi 118 FCR 326; [2002] FCAFC 220, a Full Court approved this reasoning, but for reasons which are not presently relevant, declined to extend it to s 501A. Rather, the Full Court found that the Tribunal did, in a relevant circumstance, exercise power “under” s 501A: see at [68]-[69].

62        I do not accept the applicant’s argument. The power in s 499 extends beyond directions as to decision-making to directions as to the performance of functions. The nature of the power, and the fact it is reposed in the Minister as a member of the executive responsible for the formulation of policies in those areas with which the Migration Act deals, suggests Parliament intended the power to be exercisable to affect at the level of principle as well as the more specific level of practice the way in which those with responsibilities under the Migration Act discharge those responsibilities.

63        The breadth of the power, the absence of any limits on its application to particular parts of the Migration Act and the presence of s 499(2A) is sufficient to conclude that the provision is intended to enable pursuit of consistent approaches across the subject matter of the Migration Act.

64        There is no basis in the language of s 499 to exclude the Tribunal. Although it is correct that s 499 does not expressly refer to the Tribunal (in contrast, for example, to s 501A), it employs the general term “person or body” in a way which is intended to cover a broad range of decisions and conduct engaged in under the Migration Act. There is no reason to construe that particular term narrowly. Its intention is, in my opinion, to pick up both natural and legal persons, and persons who may make up a “body”. In the context of this part of the Migration Act, and given its proximity to the review provisions in s 500, there is no reason to see the use of a general term as incapable of extending in its ordinary meaning to the Tribunal. The applicant accepts s 499 reaches the Refugee Review Tribunal and Migration Review Tribunal, even though it does not in terms mention those bodies.

65        Further, there is nothing in the legislative history of s 499 which tends against a construction including the Tribunal in the scope of s 499. The applicant’s submissions set out some of the history of directions in fact made under s 499. The extrinsic material accompanying the introduction of s 499 in its current form, which removed the reference in the previous version to “general directions”, included the following statement:

New subsection 499(1) removes the existing restriction that the Minister may give “general” directions only. Advice was received from the Attorney-General’s Department that a “general direction” may be limited to giving directions that decision-makers have due regard to certain matters in the exercise of their discretion. This amendment is intended to ensure that the Minister can specify more precisely how a discretion should be exercised.

See Explanatory Memorandum, Migration Legislation Amendment (Strengthening of Provisions relating to Character and Conduct) Bill 1998 (Cth) at [30].

66        The applicant submitted the 1998 amendments were not concerned with expanding the class of bodies to whom the directions could apply and so much may be accepted. That is because there is no indication from the legislative history or the text that the breadth was in any sense intended to be confined.

67        The applicant placed some emphasis on the fact that the Tribunal’s membership can and does include judges holding appointments to the Federal Court of Australia (see ss 6(2) and 7(1) of the AAT Act). This was submitted to provide a “good reason why the Parliament would not intend to confer power on the Minister to give binding directions to the Tribunal”. It is well established there is no incompatibility in Ch III judges performing the function of reviewing decisions as members of the AAT: see Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1 at 17-18. That being the case, and Parliament being taken to know that to be the case (see R v Morton [1986] VR 863 at 867), there is no basis for this feature of the Tribunal’s jurisdiction to cause s 499 to be differently construed.

68        In Drake (No 2) 2 ALD 634 at 642-646, in the context of deportation decision-making by the Tribunal, Brennan J explained the necessary distinction between administrative decision-making which may call for the application of executive policy and judicial decision-making which does not. Having recognised the advantages of consistency in administrative decision-making, his Honour also noted it would be inappropriate for the Tribunal itself to formulate policies for application in circumstances relying on the same statutory discretion: “The detachment which is desirable for adjudication is not in sympathy with the purposiveness of policy formation” (at 643).

69        In a passage which, despite its length should be reproduced in its entirety, his Honour explained why in areas such as deportation the exercise of power in accordance with politically formulated policies was important (at 643-645):

Administrative policy of the kind evoked by ss 12 and 13 of the Migration Act has a wide significance, affecting, as I have said, the character of Australian society. Such a policy is not conveniently formulated by this Tribunal.

A policy which the Minister may formulate and adopt to guide himself in exercising the power conferred by ss 12 and 13 is subject to parliamentary scrutiny, and ultimately to parliamentary control. Under the Westminster system of government, a Minister is politically responsible to the parliament for the policy adopted to guide the exercise of his discretionary power, and he should be left to formulate that policy in whatever manner he thinks appropriate from time to time. Administrative policies are necessarily amenable to revocation or alteration on political grounds, and they are best formed and amended in a political context.

Where a discretionary power guided by an administrative policy is exposed to review by this Tribunal, however, the powers with which this Tribunal is vested by s 43 of the Administrative Appeals Tribunal Act 1975 are wide enough to permit the sterilization or amendment of policy in its application to the cases which come here. Although the Tribunal ought not, indeed cannot, deprive itself of its freedom to give no weight to a Minister's policy in a particular case, there are substantial reasons which favour only cautious and sparing departures from Ministerial policy, particularly if parliament has in fact scrutinized and approved that policy.

If the Tribunal, in reviewing a decision made in pursuit of a lawful administrative policy, consciously departed from that policy, it would nullify not only the policy made by the repository of the discretionary power, but also any mechanism of surveillance which the relevant statute permits or provides. To depart from ministerial policy thus denies to parliament its ability to supervise the content of the policy guiding the discretion which parliament created. On some occasions, reasons may be shown to warrant departure from ministerial policy; for example, where the intervention of new circumstances has clearly made a policy statement obsolete.

But in general, it would be manifestly imprudent for the Tribunal to override a ministerial policy and to adopt a general administrative policy of its own. Although the practice of giving reasons for decisions inevitably spins out threads of policy from the facts of the cases, the policy developed in this way originates in the need to ensure that justice is done in individual cases, and it is a different development from a ministerial declaration of broad policy relating to the generality of cases. The Tribunal is no doubt able to refine a broad policy, but the laying down of a broad policy on deportation is essentially a political function, to be performed by the Minister who is responsible to the parliament for the policy he adopts. The very independence of the Tribunal demands that it be apolitical; and the creation of its deportation jurisdiction is intended to improve the adjudicative rather than the policy aspects of deportation decisions. The Tribunal is not linked into the chain of responsibility from Minister to government to parliament, its membership is not appropriate for the formulation of broad policy and it is unsupported by a bureaucracy fitted to advise upon broad policy. It should therefore be reluctant to lay down broad policy, although decisions in particular cases will impinge on or refine broad policy emanating from a Minister. Different considerations might apply if a reviewable discretionary power were not subject to ministerial supervision (see, in connection with ministerial supervision, Ansett Transport Industries (Operations) Pty Ltd v Commonwealth of Australia (1978) 52 ALJR 254).

If consistency in decision-making is sought, as it ought to be, the standards and values which a Minister expresses in a statement of lawful policy can be a constant reference point for each of the presidential members of the Tribunal in exercising the discretion in particular cases. Ministerial policy can be an aid to consistency among Tribunal decisions, and to consistency between the decisions of the Tribunal and those of the Minister. Decisions made under a statutory power and reviewed by the Tribunal are but a proportion of the decisions made under that power, and it would be a regrettable anomaly if the decisions which were not reviewed revealed different standards and values from those made on review.

70        Those considerations support what I consider is the correct construction of s 499.

71        Finally and most critically in my opinion, there is a clear textual answer to the contention made by the applicant. Whether or not it is correct to identify s 43 of the AAT Act as the sole source of the Tribunal’s powers in reviewing a cancellation decision, s 499(1) has a binary operation, with which the applicant’s argument does not grapple.

72        Section 499(1) operates not only on persons or bodies exercising powers “under” the Migration Act but also on persons or bodies performing functions “under” the Migration Act. In my opinion it is clear that, by reason of the operation of s 500 of the Migration Act, the Tribunal is performing a function “under” the Migration Act: namely, the function of reviewing the decision of the Minister to cancel a visa. That is sufficient to attract squarely the operation of s 499(1). This approach introduces no inconsistency with the decision in Powell 89 FCR 1: it remains accurate to describe the source of the Tribunal’s decision-making power as, at least in part, s 43 of the AAT Act. Its jurisdiction, however, arises from s 25(4) of the AAT Act which in terms relevantly depends on s 500 and the function there conferred.

73        This approach retains consistency with the Full Court decisions to which the first respondent refers, and to which I have referred above at [35].

Procedural fairness claim

74        In the applicant’s father’s witness statement, the following evidence appeared:

Marouna does not know New Zealand at all, although he was born there. He was only 2 years old when we all left New Zealand. Marouna does not have any immediate family in New Zealand as they all reside in Brisbane, Sydney, Perth and Melbourne. If Marouna is to be deported, because we are here in Hastings, that means we cannot come back to Australia after our last term here and we have to find alternative accommodation for us and Marouna because we have to vacate the Manse for the next Minister. It will be difficult to find employment here in Hastings for Marouna, because the work here is seasonal; Hastings, being the fruit bowl of New Zealand, have orchards and vineyards

Marouna started his schooling in Brisbane and continued in Melbourne. He started working part time when he was still in school. Marouna is a good worker, he was always been employed except for the times that he was imprisoned and even then he has participated in work placements within the prison system.

75        The Tribunal found (at [80]-[82]):

I am satisfied that Mr Williams will not face significant impediment in establishing himself in New Zealand, particularly as, for at least some time, he will have the assistance of his parents.

In his statement dated 6 January 2013, Mr Williams’ father, Reverend Abela Williams, stated that if Mr Williams is deported he and his wife will remain in New Zealand at the end of his posting and provide accommodation for Mr Williams. On the basis of the statement of Reverend Williams I am satisfied that Mr Williams has reasonable prospects of obtaining at least seasonal employment in the fruit-growing industry in the area in which his parents are likely to be living.

Mr Williams is young and enjoys good health. There are no language or social barriers which he would experience if he was required to return to New Zealand. As a citizen of that country he will be entitled to such support as is provided by the government.

76        The applicant contended that the Tribunal denied procedural fairness to the applicant in making a finding that he had reasonable employment prospects in New Zealand. This finding was made as part of the Tribunal’s fact finding on the consideration set out in para 10(1)(d) of the Direction.

77        The applicant’s contention on this ground depends on an application of Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576. In my opinion, the argument is based on a premise about the principles set out in Alphaone which is wrong. Alphaone concerned whether, before refusing a licence, the Commissioner for ACT Revenue was obliged to invite a response from an applicant to the Commissioner’s evaluation of its application. The Court found that, although the power to grant or refuse a licence was conditioned by an obligation to afford procedural fairness, in the circumstances of this case there had been no denial. That was because the Commissioner’s assessment that the company’s conduct in trading in x-rated videos without a licence was an obvious and natural evaluation which led to the Commissioner’s conclusion, and there was accordingly no need to put the company on notice of that conclusion before it was made.

78        Before setting out the passage on which the applicant sought to rely, it is instructive to consider the context of that passage. It comes after the Full Court has set out the general principle that a decision-maker is not obliged to invite comment on her or his evaluation of the material before her or him. The Full Court then sets out (at 591) two qualifications to that general principle:

79        Northrop, Miles and French JJ said:

Two such qualifications were enunciated by Jenkinson J in Somaghi at 108-109:

1. The subject of a decision is entitled to have his or her mind directed to the critical issues or factors on which the decision is likely to turn in order to have an opportunity of dealing with it: Kioa v West at 587 (Mason J); Sinnathamby at 348 (Burchett J); Broussard v Minister for Immigration and Ethnic Affairs (1989) 21 FCR 472 (Burchett J) .

2. The subject is entitled to respond to any adverse conclusion drawn by the decision-maker on material supplied by or known to the subject which is not an obvious and natural evaluation of that material: Minister of Immigration and Ethnic Affairs v Kumar (unreported, Full Court, Federal Court, 31 May 1990); Kioa v West at 573, 588 and 634.

80        Against that background, the Full Court then stated (at 591-592):

Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question. For a statutory exception to the latter proposition see the pre-decision conference process provided for in the Trade Practices Act 1974 (Cth).

81        The applicant conceded that when the Full Court used the phrase “would not obviously be open” it referred to an objective assessment, rather than a subjective one by the person said to be affected by the exercise of the power.

82        There will inevitably be difficulties in identifying the level of specificity with which these qualifications should be applied in a given case. Taken too broadly, the two propositions outlined by Jenkinson J in Somaghi v Minister for Immigration, Local Government and Ethnic Affairs (1991) 31 FCR 100 would not act as qualifications in the way they were intended to. Yet, if applied in too detailed a fashion, they risk subverting the general principle they are said to qualify. By relying on a governing and common sense concept of “obvious and natural evaluation” (as in Somaghi) or “not obviously open” (as formulated by the Full Court itself in Alphaone) the Courts articulate the need for something beyond non-acceptance of material before the decision-maker, and beyond partial acceptance. Those concepts also involve something more than the prospect an applicant might disagree with the decision-maker’s conclusion — that is why the objectiveness of the exercise matters. Such eventualities are the usual outcome of any evaluation of evidence.

83        Understood in that way, there was no denial of procedural fairness by the Tribunal in the present review. The applicant was, by reason of the terms of the Direction, always aware that one of the matters to which he needed to direct some evidence, and which the Tribunal was required to consider, was “the extent of any impediments that the person may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country)”. He did this: that was clearly the point of the aspects of his father’s statement to which I have referred above. In evidence before the Court it was apparent that the applicant also made submissions to the Tribunal on this consideration.

84        Reading the Tribunal’s reasons fairly in this context involves reading all three paragraphs extracted at [75] above. Taken together, those three paragraphs address the relevant part of the Direction about what, if any, “impediments” an applicant might face on return to their home country. The last of these three paragraphs was clearly something which the Tribunal thought important: namely that, as a New Zealand citizen, the applicant was able to access social security benefits and in that sense any impediment to restabilising himself which might be present because of difficulty securing seasonal work was mitigated to a level which, on the merits, satisfied the Tribunal. The middle paragraph, which is said by the applicant to contain the adverse conclusion, is expressed in significantly qualified terms: namely that the applicant had reasonable prospects of obtaining at least seasonal employment in New Zealand.

85        The applicant was on notice that the existence and nature of any such impediments would be considered by the Tribunal. He adduced evidence to address that issue. Reverend Williams’ statement did draw attention to the availability of seasonal work, it did characterise the applicant as a good worker, it did depose to the applicant having always been employed when he was not in prison and, although it also expressed an opinion that the applicant would find it difficult to secure that seasonal work, there was a basis in this evidence for the finding the Tribunal made. The Tribunal was entitled not to take Reverend Williams’ opinion about the “difficulty” of his son finding employment at face value, nor at its highest and, like any other piece of evidence, the applicant should be taken to understand it may not be accepted in its entirety, nor accepted in the light most favourable to him. Discharge of procedural fairness obligations does not require an administrative decision-maker to alert an applicant each and every time the decision-maker proposes to form a view which does not reflect the most favourable interpretation of a single piece of evidence adduced by an applicant.

86        I accept the applicant’s submission that it is not necessary for the applicant to place evidence before the Court as to what he would or might have said if given an opportunity to respond: see Dagli v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 541; [2003] FCAFC 298 at [97]. I also accept that the relevant test is whether the denial of procedural fairness affected the outcome, or (as it is sometimes put) denied the applicant the possibility of a successful outcome: see NBNB v Minister for Immigration and Border Protection (2014) 138 ALD 455; [2014] FCAFC 39 at [4]-[5] per Allsop CJ and Katzmann J.

87        Accepting those principles, there is a difficulty in identifying what is the “practical injustice” to the applicant said to arise from the Tribunal’s failure to communicate separately to him about the view it formed on the issue of impediments: see Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 at [37] per Gleeson CJ.

88        That is because the applicant in fact did put forward the evidence he wished the Tribunal to consider about the impediments he said he would face on return to New Zealand, including the evidence from his father. It is clear the Tribunal did not accept that evidence as establishing an absolute conclusion the applicant could not secure work in New Zealand, especially in the light of other evidence (which it accepted) that the applicant was a good and sought-after worker. As I have observed, the availability of social security payments to the applicant was also material to its decision, which concerned an issue broader than employment: namely, impediments to re-establishment.

89        This is not a case of requiring the applicant to prove what he would have said: rather, it is a case where the applicant put his evidence forward and it was not accepted in the way the applicant would have hoped. There is no denial of procedural fairness in that: the Tribunal was not obliged to give the applicant an opportunity to improve his evidence by notifying him of the view it took on the consideration to which that evidence was directed.

90        The first respondent also relied on the particular provisions in ss 500(6H), (6J) and (6L) of the Migration Act which operate to constrain the material which an applicant can adduce before the Tribunal. On the hypothesis that the procedural fairness obligation relied on by the applicant would have required the Tribunal to communicate with the applicant at or after the hearing and afford him an opportunity to respond at that point in the review process, the Minister submitted these provisions would have affected (and perhaps negated) the applicant’s ability to put on material in response.

91        The applicant’s response to this submission was that, even if those provisions constrained his ability to respond by way of evidence (written or oral) he would have been able to make submissions about why the Tribunal should not reach that conclusion on the existing evidence. I agree with that submission. It may also be the case, as the applicant contended, that the provisions should not be construed in a way which precludes an applicant from responding orally or in writing to matters communicated to him either by the Tribunal or the Minister’s representatives. The purpose of the provisions — to ensure the Minister is not “caught by surprise” in the way an applicant presents her or his case on the review — would not be advanced by any broader construction. Given the conclusion I have reached that there has been no denial of procedural fairness these issues need not be explored further.

The Tribunal misinterpreted and/or misapplied Direction No 55

92        As indicated above, this ground has five separate aspects to it. It proceeds on the assumption that the applicant is wrong about the applicability of the Direction to the Tribunal. Indeed, it depends for its success on the mandatory effect of the Direction on the Tribunal. It assumes that, by reason of the terms of s 499(2A), a failure to comply with a direction given under s 499, as properly construed, results in the task of the Tribunal under the Migration Act miscarrying to an extent that can be characterised as exceeding its jurisdiction.

93        Although this aspect was not dwelt on in submissions, and subject to the first argument on the review, it is appropriate to characterise the terms of s 499(2A), where it applies, as forming part of the Tribunal’s task on review, and as giving rise to jurisdictional error if compliance with the Direction does not occur: see SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162; [2005] HCA 24 at [77] per McHugh J.

Paragraph 9.2(1)(b) (ground 3(a))

94        I do not agree with the premise on which this ground is based: namely that the Tribunal “disregarded” the applicant’s links with his parents. The Tribunal found:

Although various members of the family have expressed support for Mr Williams in these proceedings, I am not satisfied that the ties of Mr Williams to his family are particularly strong or that they should be given more than minimal weight. His parents left Australia when he was sixteen and do not provide any link to this country at present. Mr Williams plans to live in Melbourne should he be free to do so. Only one of his siblings would be living in close proximity.

95        Paragraph 9.2(1)(b) of the Direction relates to the “strength, duration and nature of any family, social and/or employment links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia”. The consideration asks the decision-maker to focus on the link between the applicant and persons with that status, characterise the link and assess its strength. Although expressed by reference to Australian citizens and others who have an indefinite right to stay in Australia, the use of that category of reference indicates that the focus of the consideration is on the bonds an applicant has formed in Australia, with people who are treated by the law as permanent or long-term members of the Australian community. The nature and strength of such bonds are rationally capable of affecting the level of a person’s commitment to the Australian community, her or his determination to be a lawful member of it and her or his interest in making a contribution to it — all matters which are central to the considerations in the Direction. I do not accept the applicant’s contention that the consideration focuses on status as somehow separate from residence in Australia. The extension of the category beyond Australian citizens indicates that the focus is on people who are long-term members of the Australian community.

96        The Tribunal placed weight as it was entitled to do on the fact the applicant’s parents left him in Australia as a young man when they moved to New Zealand. On the evidence it was open to the Tribunal to find that “at present” (that is, at the time of the decision on the review) his parents did not provide any link to Australia, especially given the evidence it had earlier relied on, to the effect that at the time of its review his parents were not planning to return to Australia for another two years. Its principal finding is that the applicant’s links to his family were not particularly strong and that was a factual decision for it to make.

Paragraph 9.1.1(1)(e) (ground 3(b))

97        I also accept the first respondent’s submission that the Tribunal did not misunderstand the nature or extent of the sentences imposed on the applicant, when it said at [15] of its reasons:

Mr Williams was sentenced to terms of imprisonment of slightly in excess of 27 months, to be served concurrently with the sentences imposed in August 2011.

98        This passage is, as the first respondent submitted, a reference to the total sum of the sentences imposed in December 2011. The use of the term “concurrently” indicates the Tribunal was aware of the effective sentence, by reference to the prior sentences in August 2011 it had just described. The Direction required the Tribunal to have regard to the “sentence imposed”. It did not refer in terms, or by implication, to the consideration being limited to the time a person would effectively spend in prison. It would in my opinion have been erroneous for the Tribunal to confine itself in the way suggested by the applicant.

99        There is no suggestion in the reasons that the Tribunal’s ultimate decision, or its reasoning, was affected by any particular focus on the length of the sentences imposed. The Tribunal formed a view about the seriousness of the applicant’s offending from the nature of the sentences, and the fact of considerable sentences of imprisonment. Its emphasis, at a merits level and consistently with the terms of the Direction, was on the nature of the offending conduct and it demonstrated this emphasis by extracting into its reasons the Minister’s summary of the applicant’s offending conduct in August 2011. That summary recorded extremely serious, unprovoked acts of physical violence on people previously unknown to the applicant. In later parts of its reasoning, it was the seriousness of the conduct which again features prominently. The precise length of the sentences, in comparison, did not feature in the Tribunal’s reasoning.

Paragraph 9.1.2 (ground 3(c))

100        This third contention rests on an asserted disconformity between the Tribunal’s reasoning on the likelihood of further offending by the applicant and its reasoning about the nature of the harm which might flow.

101        Relying on the decision in this Court of Obele 119 ALD 358; [2010] FCA 1445, the applicant submits that, before looking at the nature of the harm which might be caused to members of the Australian community in the future, the Tribunal needed to assess the probabilities of the type of future offending in which the applicant might engage. The applicant submits the Tribunal examined “likelihood” by focusing on criminal or serious conduct involving violence, but considered the nature of the harm by reference to burglary and stealing offences. This, the applicant said, introduced a disconformity or “disconnect”, which reflected a misunderstanding of this consideration in the Direction.

102        The applicant submitted the Tribunal had not properly understood the task in para 7(1)(b) of the Direction, read with para 9.1.2. It had looked at the nature of the harm and the likelihood of reoffending independently when the Direction requires them to be considered as a matrix. The express terms of para 9.1.2 refer, he contended, to such a matrix, on a “sliding scale of tolerance”. The Tribunal was required to speculate as to the harm which might be caused to the Australian community in the future if the applicant were permitted to remain, and then to assess the likelihood of that harm occurring. Looking at the risk of reoffending, that is, engaging in the same conduct as that for which he had previously been convicted, was not the same task, it was submitted.

103        Although it may have become more complex than necessary, I accept the applicant’s contention that the approach required by para 7(1)(b) is broader than an examination of past offending. The terms of the sub-paragraph itself make that clear — the assessment is to be of the likelihood of “any” future harm. Then, the assessment of the extent of that harm must be undertaken. This will include the seriousness of the future harm, as well as the potential frequency of occurrence, and facts such as the vulnerability of potential victims. The applicant is correct to submit that the “harm” under consideration here is the same “harm” as that identified in the first step.

104        Consistently with this framework, para 9.1(2) requires decision-makers to look first at past conduct and assess its nature and seriousness, and then to come back to “risk”, which relates to future conduct. Again, the terms of this paragraph are not limited to conduct constituting prior offending. How the risk is to be assessed is developed in more detail at para 9.1.2 of the Direction. Paragraph 9.1.2(1) recognises, by use of a scaled approach, that the more serious the future harm or conduct, the more it might be that any risk — however small — of that harm occurring is sufficient to render the risk “unacceptable”. It will be recalled that the concept of an “unacceptable” risk is the governing concept in the core direction about the exercise of the discretion in para 7(1)(b).

105        I am satisfied the Tribunal’s approach to this aspect of its decision-making does not reveal error. The Tribunal dealt sequentially with the two limbs of the “protection of the Australian community” consideration in para 9.1(2). It reached a conclusion adverse to the applicant about the seriousness of his conduct to date and, as I have already observed, the seriousness of his prior offending was clearly a matter which weighed heavily with the Tribunal in this particular case.

106        The Tribunal then set out its findings on the nature of the harm in the terms of para 9.1.2(1)(a) of the Direction. The applicant’s contention centred on these paragraphs:

The nature of the harm to the Australian community should the Applicant engage in further criminal and/or serious conduct of the nature of that in which he has engaged in the past, would be extremely serious. A repetition of the offences involving violence would cause very serious physical harm to, and possibly death of, the victims.

A repetition of offences such as burglary and stealing would cause feelings of insecurity in the communities in which offences were committed. Those the subject of burglary would feel the violation associated with home invasion.

107        Contrary to the applicant’s submissions, in these paragraphs it is clear the Tribunal examined both the applicant’s previous violent offending conduct, as well as conduct constituting burglary and stealing. It found a repetition of both would cause harm in the future but, by its language and consistently with the remainder of its reasons, it is clear it was more concerned about the violent offending.

108        Although the terms of the Direction allowed for it, as I have observed above, in the circumstances of this case there was no real occasion for the Tribunal to consider more widely any other sort of “harm” outside the applicant’s previous offending behaviour. The applicant did not point to any evidence, submission or material suggesting at a factual level there was a need for the Tribunal to look at different and new kinds of potential harm. The applicant’s own case to the Tribunal focused on his previous offending. It was both understandable and appropriate that the Tribunal also do so.

109        The Tribunal then went on to examine the likelihood of the applicant engaging in further criminal or serious conduct, in the terms of para 9.1.2(1)(b) of the Direction. The applicant did not appear to challenge this aspect of the Tribunal’s findings, save in a limited respect as set out in ground 3(d). While it is true that, in this part of its reasons, the Tribunal does not return to the likelihood of the applicant engaging in conduct constituting burglary and stealing, there was no need for it do so given the presence of the applicant’s violent offending as the more serious issue.

110        Accordingly, there is no disconformity or disconnect in the Tribunal’s reasoning of the kind for which the applicant contends. This ground must fail.

Paragraph 9.1.2(1)(b)

111        The applicant contends that in the part of its reasons evaluating the likelihood of the applicant reoffending, the Tribunal failed to take account of evidence of the effect of “dynamic factors” on the risk of reoffending. It is said to have fallen into this error by relying only on that part of Mr Simmons’ report and his oral evidence which involved some modifications by Mr Simmons to the placement of the applicant on the Violence Risk Appraisal Guide (VRAG) scale in terms of his risk of reoffending. This statistical risk, the applicant submitted, had to be considered together with the effect of the dynamic factors operating in the applicant’s case, which Mr Simmons had identified as: age, a long term relationship with a female who is not an offender, stable accommodation and employment, reduction in alcohol consumption and the supervision of the parole board.

112        The applicant’s contention focused on the following paragraph (at [68]) of the Tribunal’s reasons:

I have given careful consideration to the views expressed by Mr Simmons, who assessed Mr Williams as late as October 2013. Mr Simmons assessed the risk of Mr Williams’ reoffending as moderate, with dynamic factors suggesting that the level of risk was in fact lower. He was critical of the VISAT testing which indicated the level of risk was high. However in cross-examination, Mr Simmons agreed that having been made aware of more detail of Mr Williams’ history, his scoring on the VRAG scale placed him in the section of the population in the moderate to high risk range of re-offending. I accept that the various scales do not assess an individual’s risk of re-offending. I do not accept Mr Simmons’ evidence that the risk of Mr Williams’ reoffending was in the low-moderate range as he did not have available to him all of the relevant information to make such an assessment.

113        In common with some of the applicant’s other arguments, the Tribunal’s reasoning cannot be evaluated by a focus on just one paragraph. Earlier in this part of its reasoning, the Tribunal had set out the dynamic factors identified by Mr Simmons and to which I have referred. Having done that, the Tribunal then set out what it considered to be the key summary of the interrelationship between those factors and the static risk assessment, which initially Mr Simmons had stated placed the applicant at a medium risk of reoffending. The Tribunal stated (at [46]):

In his report dated 23 October 2013 Mr Simmons concluded:

With regard to Mr Williams, given the information outlined above, while Mr Williams was found to have a moderate level of risk on the VRAG, the dynamic factors suggest that his level of risk is in fact lower than this if he were to be released into the community at the present time. It is acknowledged that his level of risk may further increase or decrease over time, but that will depend on future events in his life that cannot be identified at this point in time.

114        It then identified Mr Simmons’ ultimate conclusion, taken from his report and which the Tribunal considered to be important (at [47]):

In giving evidence Mr Simmons said that the most important factor to minimise the risk of Mr Williams’ re-offending is his abstaining from consuming alcohol and illegal drugs. His proposal is that he live with a family friend. The support of his family and the supervision on parole are also important.

115        In this passage, it is apparent Mr Simmons’ view is that the higher static risk of reoffending is moderated downwards by dynamic factors. Obviously, how far it is moderated downwards will depend on where the static risk assessment places the applicant and the effect of the dynamic factors.

116        To this point it is clear the Tribunal has taken into account and evaluated the effect of both the dynamic and static factors identified by Mr Simmons, and how they interrelate. In the subsequent paragraphs, where it expresses its conclusions on the likelihood issue, the Tribunal re-examines these dynamic factors, and other evidence. It also returns to Mr Simmons’ evidence and identifies a concession made by Mr Simmons in cross-examination which would have led to him being placed higher on the VRAG than originally estimated by Mr Simmons. The reference at [68] to Mr Simmons’ original opinion that the applicant’s risk of reoffending was in the “low-moderate range” was a reference to Mr Simmons’ overall conclusion taking into account dynamic and static factors. What the Tribunal points to in this passage is the effect of Mr Simmons’ concession on his previous conclusion, which the Tribunal had earlier quoted. The last sentence of [68] was a conclusion open to the Tribunal, given the concession made by Mr Simmons. This was one, but not the only, factor which led the Tribunal to conclude that there was a “reasonable likelihood” that the applicant would engage in future conduct involving physical violence, a conclusion open to it on the material.

Paragraph 10

117        The applicant contends that, in two ways, the Tribunal misapplied para 10 of the Direction. First, he contends the Tribunal did not consider the effect of the visa cancellation on his parents. As the first respondent submits, in fact the Tribunal did consider this matter. At [77]-[78] of its reasons the Tribunal found:

The relevant other consideration listed in the Direction are:

a) Effect of cancellation of the person’s visa on the person’s immediate family in Australia, if those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely; ...

c) Impact of a decision not to cancel a visa on members of the Australian community, including victims of the person’s criminal behaviour, and the family members of the victim or victims where that information is available and the person being considered for visa cancellation has been afforded procedural fairness;

d) The extent of any impediments that the person may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:

i. The person’s age and health;

ii. Whether there are substantial language or cultural barriers; and

iii. Any social, medical and/or economic support available to them in that country.

On the basis of the evidence of Mr Williams’ family members and friends I am satisfied that they would be disappointed by he being required to leave Australia. However there is no evidence to indicate that cancellation of his visa would have any significant impacts, either emotional or financial on any of them.

118        Secondly, and fatally to this aspect of the argument, the Direction specifically referred to family “in Australia”. The applicant’s parents were resident in New Zealand. Unsurprisingly, the focus of the Direction is on persons with current residence in Australia, being the place an applicant seeks to stay.

119        Finally, the argument about a failure to consider the impact on business interests is without any foundation, given the absence of any real material or argument put by the applicant about this issue. A bare assertion that the applicant had been an “asset” to the company which had employed him and that company was keen to promote him to a leadership role could not on any reasonable view be seen to engage the consideration at para 10 of the Direction.

CONCLUSION

120        The application must be dismissed. There is no basis to depart from the usual order as to costs.

THE APPLICANT’S REPRESENTATION

121        The Court was significantly assisted by, and extends its gratitude to, counsel who agreed to take a referral to advise and appear for the applicant, pursuant to r 4.12 of the Federal Court Rules 2011 (Cth).

Associate:

Dated:    4 July 2014