FEDERAL COURT OF AUSTRALIA

Uelese v Minister for Immigration and Border Protection [2016] FCA 348

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed, with costs.

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

REASONS FOR JUDGMENT

ROBERTSON J:

Introduction

1    This is an application under s 476A(1)(b) of the Migration Act 1958 (Cth) for judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) made on 23 September 2015 affirming the reviewable decision made on 3 September 2012. Despite the terms of the decision of the Tribunal, being that the reviewable decision was made by the Minister for Immigration and Citizenship to cancel Mr Uelese’s Class TY subclass 444 Special Category (Temporary) visa, it was common ground that the reviewable decision was the decision of a delegate of the Minister.

2    Under s 501(2) of the Migration Act, the Minister or a delegate may cancel a visa that has been granted to a person if the Minister or the delegate reasonably suspects that the person does not pass the character test and the person does not satisfy the Minister or the delegate that the person passes the character test.

3    No question arises on this application in relation to the character test but only as to the discretion to cancel the visa.

4    By s 500(1)(b) of the Migration Act an application may be made to the Tribunal for review of decisions of a delegate of the Minister under s 501.

5    By s 499(1) of the Migration Act, the Minister may give written directions to a person or body having functions or powers under the Migration Act if the directions are about the performance of those functions or the exercise of those powers. The Minister is not empowered to give directions that would be inconsistent with the Migration Act or the regulations. By s 499(2A), the person or body must comply with a direction under s 499(1). By s 499(3), the Minister shall cause a copy of any direction given under s 499(1) to be laid before each House of the Parliament within 15 sitting days of that House after that direction was given.

6    On 22 December 2014 the then Minister gave a direction under s 499 commencing on 23 December 2014. It may be cited as Direction no. 65 and I shall refer to it as Direction no. 65 or the Direction.

7    The applicant is in detention.

Direction no. 65

8    As stated in paragraph 6.1(4), the purpose of the Direction is to guide decision-makers performing functions or exercising powers under s 501. Reference is also there made to s 499(2A) that a “person or body must comply with a direction under” s 499(1).

9    By paragraph 6.2(3), it is stated that the principles provide a framework within which decision-makers should approach the task of deciding whether, relevantly, to cancel a non-citizen’s visa under s 501. The relevant factors that must be considered are identified, relevantly, in Part A. Paragraph 6.3 states seven “Principles”. All of this is in Section 1 of the Direction.

10    Section 2 has the heading “Exercising the discretion”. Paragraph 7 has the heading “How to exercise the discretion” and states that, informed by the principles in paragraph 6.3, a decision-maker must take into account the considerations in, relevantly, Part A in order to determine whether a non-citizen “will forfeit the privilege of … continuing to hold” a visa. Paragraph 8 has the heading “Taking the relevant considerations into account” and states that decision-makers “must take into account the primary and other considerations relevant to the individual case.” The paragraph states that these different considerations are articulated in, relevantly, Part A. Paragraph 8 goes on to say that both primary and other considerations may weigh in favour of, or against, cancellation of the visa. Primary considerations should generally be given greater weight than the other considerations. One or more primary considerations may outweigh other primary considerations.

11    Part A specifies, at paragraph 9(1), that in deciding whether to cancel a non-citizen’s visa: (a) protection of the Australian community from criminal or other serious conduct; (b) the best interests of minor children in Australia; and (c) expectations of the Australian community are primary considerations.

12    Paragraph 9.1.2 has as its heading “The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct”. In considering the risk to the Australian community, paragraph 9.1.2(2) states decision-makers must have regard to, cumulatively: (a) the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and (b) the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account information and evidence on the risk of the non-citizen re-offending; and 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).

The Tribunal’s reasons for decision

13    The Tribunal first set out the background.

14    It found that Mr Uelese was born in Samoa in 1984. Mr Uelese is a citizen of that country. When he was three years old he moved to New Zealand with his family. In addition to his Samoan citizenship he is a citizen of New Zealand. He lived in New Zealand until he moved to Australia with his family in 1998 when he was 14 years old. He is the eldest of seven siblings. Mr Uelese attended school in New Zealand and Australia. He left school after completing year 10 and commenced employment. From that time until he was sentenced to imprisonment in October 2010 he worked in several trades.

15    Since his arrival in Australia, Mr Uelese has resided continuously in Australia. Until 3 September 2012 he held a Class TY Subclass 444 Special Category (Temporary) visa.

16    Mr Uelese has committed a number of criminal offences. His first offence was in October 1999 and his last in December 2011.

17    His first conviction was in October 2003. Two convictions resulted in his serving terms of imprisonment. He was released from the second term in September 2012 and immediately taken into immigration detention. He has been in detention ever since.

18    In September 2012, the Minister cancelled Mr Uelese’s visa as he suspected that he did not pass the character test set out in s 501 of the Migration Act, and as Mr Uelese did not satisfy him that he did pass the character test.

19    Mr Uelese applied to the Tribunal to review the Minister’s decision. His application was initially heard in 2012 and the Minister’s decision was affirmed. Following the hearing of an appeal, Uelese v Minister for Immigration and Border Protection [2015] HCA 15; 319 ALR 181, the High Court of Australia remitted the matter to the Tribunal to be re-heard. This took place on 2 and 3 September 2015.

20    The Tribunal found that the following offences had been committed by Mr Uelese.

21    Relevant to ground 1, at [15] the Tribunal said:

The power of the Tribunal to review the decision to cancel Mr Uelese’s visa is provided by Section 500. Under subsection 499(1) the Minister has given written directions as to the exercise of the power to review the decision. Subsection 499(2A) provides that these directions must be complied with. The relevant direction is Direction No.65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA which commenced on 23 December 2014.

22    At [130] the Tribunal said:

Taking into account all of the considerations and guided by the principles set out in Direction No. 65, I have reached the conclusion that the degree of the risk of Mr Uelese’s reoffending and the serious consequences which could arise in those circumstances, outweigh all considerations in favour of Mr Uelese’s visa not being cancelled. Of particular concern is the violent nature of Mr Uelese’s offending and the limited rehabilitation which he has undertaken. I therefore conclude that the risk of future harm which would be incurred if Mr Uelese was allowed to remain in Australia is unacceptable and that he should forfeit the privilege of continuing to hold a visa enabling him to reside in this country.

23    Relevant to ground 3, at [108]-[112] the Tribunal said:

Paragraph 9.3 provides:

The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to cancel the visa held by such a person. Visa cancellation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not continue to hold a visa. Decision-makers should have due regard to the Government’s views in this respect.

I have no evidence to enable me to determine the expectations of the Australian community in this matter, other than the guidance provided by the Direction itself.

Clearly Mr Uelese has not met the expectation that as a non-citizen he will obey the laws of this country. Of the 17 years he has spent in Australia, almost six of those years have been spent in some form of detention. In the time he lived in the community he has committed the serious offences to which I have referred, involving physical violence and the supply of drugs for purely monetary gain.

In making the Direction, the Minister has made it clear 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.” The Principles to be applied, as set out in paragraph 6.3, state that the right of a non-citizen to remain in Australia is a privilege conferred in the expectation that he or she will be law-abiding.

It is also the expectation of the Australian community that a visa should be cancelled if the holder commits serious crimes: see Principles sub-paragraph 6.3(2).

(Original emphasis. Footnote omitted.)

24    Also relevant to ground 3, at [126]-[128] the Tribunal said:

D4. Extent of impediments if removed

Paragraph 10.5 provides:

The extent of any impediments that the non-citizen 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:

a)    The non-citizen’s age and health;

b)    Whether there are substantial language or cultural barriers; and

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

Mr Uelese is young and in good health. There are no substantial language or cultural barriers to his returning to either New Zealand or Samoa and I am informed that he has the choice of the country to which he would return.

There is no specific evidence of the support available in either country, but I take into account that at least in New Zealand Mr Uelese would have access to government benefits similar to those available to him in Australia.

The application to this Court

25    The application as filed contained three grounds.

26    The first ground was that the Tribunal erred by treating Direction no. 65 as a direction with which the Tribunal was obliged to comply because the Direction, the applicant submitted, was required to be registered under what is now called the Legislation Act 2003 (Cth); it was not so registered. It was not enforceable by virtue of s 31 of that Act, and it was therefore not a valid direction under s 499(2A) of the Migration Act.

27    The second ground, in the alternative, was abandoned at the commencement of the hearing of the application in this Court.

28    The third ground, in the alternative, was that the Tribunal made findings of fact with no evidence. Two alleged findings of fact are identified. The first is at [112] of the Tribunal’s reasons, set out at [23] above, that it is the expectation of the Australian community that a visa should be cancelled if the holder commits serious crimes: see Principles sub-paragraph 6.3(2). The second is at [128] of the Tribunal’s reasons, set out at [24] above, where the Tribunal took into account that at least in New Zealand the applicant would have access to government benefits similar to those available to him in Australia.

The parties’ submissions

Ground 1

29    The applicant submitted that Direction no. 65 is a legislative instrument; that the Minister was required to register the Direction; and that his failure to do so made the Direction unenforceable.

30    The applicant referred to seven features which, in combination, he submitted demonstrated that the Direction is a legislative instrument within the meaning of the Legislation Act.

31    First, s 499 of the Migration Act authorised the Minister to give written directions to delegates and the Tribunal about the performance and exercise of their functions, including their power under s 501(2) of the Migration Act. Secondly, the Direction applied generally to relevant decision-makers and to non-citizens, including visa holders. It was not specifically targeted at the applicant or those making decisions in relation to him. Thirdly, the Direction defined and regulated in an extensive and substantial way what would otherwise be a relatively general discretion under s 501(2). The Direction specified in detail the considerations to be taken into account and the way in which they are to be taken into account, including their relative weight. In so doing, the Direction determined the content of the law in this area and thus operated indistinguishably each from legislation. Fourthly, the considerations set out in the Direction involved determinations in relation to complex policy questions. Additionally, in paragraph 10.1, the Direction represented a determination of Australia’s international law obligations and the way in which they ought to be given effect domestically. Fifthly, the Direction remained under Parliamentary control and was subject to Parliamentary disallowance as part of the political process. The Direction was simultaneously subjected to public exposure, comment, objection and criticism. Sixthly, the Minister was charged by Parliament, under s 499(1), to give written directions to decision-makers on its behalf. Seventhly, the Direction had binding legal effect on decision-makers pursuant to s 499(2A). The applicant referred to the Tribunal’s reasons at [15].

32    The next step in the applicant’s submission was that the Direction, because it was a legislative instrument, should have been, but was not, registered under the Legislation Act. It then followed that the legislative instrument, the Direction, “is not enforceable by or against the Commonwealth, or by or against any other person or body” as stated in s 31 of the Legislation Act as then in force. (See now s 15K).

33    The final step in the applicant’s submission was that as the Direction was not an enforceable direction, the Tribunal was not bound to rely on the considerations it contained nor bound to place more weight on certain considerations over others. Accordingly, the applicant submitted, the Tribunal took into account irrelevant considerations and unlawfully fettered the exercise of its discretion in determining the matter.

34    The respondent Minister submitted that Direction no. 65 was not a legislative instrument within the meaning of the Legislation Act and, further, that the applicant’s proposition that the Tribunal made a jurisdictional error in applying the Direction and that relief should follow, ought to be rejected.

35    The Minister submitted that the Direction does not determine the law or alter the content of the law. Rather, it provides guidance and direction to decision-makers. Decision-makers are required to comply with the Direction but the Direction does not itself create, vary or remove rights, privileges or obligations. In particular, the Direction does not impose any limit on the matters that may be taken into account; properly construed, it does not stipulate the weight to be given to those matters in each and every case; and does not make relevant (in a mandatory sense) any consideration that is not already relevant by reason of the text and context of s 501 of the Migration Act. The Direction did not, therefore, fetter the broad discretionary power conferred by s 501. So characterised, the Direction is not legislative in nature because it does not either determine the law or alter its content. In any event, the Minister submitted, the Direction consisted in its entirety of directions to delegates exercising the Minister’s power under s 501 and by item 21 in s 7(1) of the Legislation Act the Direction was expressly stated not to be a legislative instrument for the purposes of that Act. Item 21 provided that an instrument is not a legislative instrument for the purposes of the Legislation Act as “Instruments that comprise, in their entirety, directions to delegates”. The fact that the Direction was also binding on the Tribunal did not detract from this position as the Tribunal, the Minister submitted, was “standing in the shoes” of the Minister’s delegate.

36    The Minister submitted that the Tribunal’s application of the Direction in the course of exercising the discretion conferred by s 501 did not involve the “enforcement” of the Direction within the meaning of s 31(1) of the Legislation Act as then in force. The Minister submitted that the Tribunal does not enforce the Direction nor is it enforced against the applicant. Section 31(1) did not render the Direction “invalid”, “void” or incapable of having any legal effect.

37    The Minister submitted the Direction remained a direction issued by the Minister and the Tribunal was required to comply with it by virtue of s 499(2A). That obligation was not dependent on compliance with the procedures of the Legislation Act. That is, even if s 31(1) did render the Direction unenforceable, it did not mean that the Direction could not be given legal effect by some other provision, in this case s 499(2A).

38    In the alternative, the Minister submitted that if the Direction was not legally binding on the Tribunal, it may be conceded that the Tribunal erred by proceeding on the basis that it was bound by it. However, the Minister submitted, the Court ought to exercise its discretion to refuse relief. First, the applicant did not raise the issue now pressed before the Tribunal, where he was represented by counsel and solicitors. The Applicant contributed to the error by submitting to the Tribunal that the Direction did apply. Secondly, even if it was not legally binding, Direction no. 65 remained a statement of executive policy endorsed by the Minister and the Tribunal ought properly apply that policy absent some cogent reason to the contrary. No cogent reason to the contrary was apparent. Because the Direction would have been applied by the Tribunal as Ministerial policy in any event, no injustice was caused and there was no risk of injustice. The Court ought not grant relief in such circumstances.

39    In response to the Minister’s submission as to item 21 in s 7 of the Legislation Act, the applicant submitted that the Direction was not, in its entirety, a direction to delegates: the Direction purported to bind the Tribunal and that took it outside item 21.

Ground 3

40    The applicant submitted that the Tribunal had no evidence to make the findings reached at [112] regarding the expectations of the Australian community. Neither the individual clauses in Direction no. 65, nor the Direction itself, constituted “evidence”. They did not prove matters of fact. The Tribunal’s reference back to the principle in paragraph 6.3 (2) to satisfy proof of the expectations of the Australian community was circular and not a proper exercise of power. Accordingly, there was no evidence upon which to make any adverse inferences against the applicant in relation to the Australian community’s expectations concerning the cancellation of his visa.

41    In addition, the applicant submitted that the finding of the Tribunal at [128], where the Tribunal took into account that at least in New Zealand Mr Uelese would have access to government benefits similar to those available to him in Australia, was unsupported by evidence and based purely on speculation. The applicant submitted that this finding was not reasonably open as there was no probative evidence before the Tribunal for it to make such a positive finding of fact. Further, it was not a matter of which the Tribunal could take notice. Neither party led any evidence or made any submissions about the prospect of the applicant seeking and obtaining social service benefits if returned to New Zealand. In the absence of such evidence, the applicant submitted, the Tribunal erred in law by making a finding that the applicant would have access to government benefits in New Zealand similar to those available to him in Australia. The applicant submitted that the question of government benefits cannot be a matter for judicial notice. The applicant pointed out that the comfort that the Tribunal appears to have derived from the availability of a social security net in New Zealand was one which could be accepted but it was not known what it was, in what amount, on what terms and conditions, what the eligibility criteria were and how that would impact on someone like the applicant.

42    The applicant submitted that these unsupported findings of fact infected the whole of the Tribunal’s decision and made it invalid.

43    The respondent Minister submitted, in relation to the expectations of the Australian community, that the applicant’s complaint misconceived the nature of the Tribunal’s finding. The Tribunal’s finding was not a finding of fact; it was an evaluative conclusion drawn from primary facts. The “no evidence” ground of review had no application to such conclusions. This approach was consistent with experience. Courts and tribunals were commonly required to assess community values and community expectations. This did not mean that such expectations could only be determined on the basis of the evidence in a particular case. In most cases it “scarcely seems sensible” to require evidentiary proof of community expectations: Visa Cancellation Applicant and Minister for Immigration [2011] AATA 690 at [65]-[81], particularly at [77] per Downes J. In any event, the Minister submitted, there was evidence of community expectations in that the Minister in the Direction had made such a statement: the Minister responsible to a democratically elected parliament is well placed to determine the expectations of the Australian community: Re Patterson; Ex parte Taylor (2001) 207 CLR 391 at [330]-[331] per Kirby J.

44    In relation to the support available in New Zealand, the Minister submitted that the Tribunal was entitled to inform itself by reference to matters of general knowledge even in circumstances where a Court would not be entitled to take the matters on judicial notice. Given the cultural, historical and political similarities between the two countries, it was open to the Tribunal to find that the system of government benefits in New Zealand is similar to that in Australia. In any event, the submission went, even if there was no evidence to support the Tribunal’s finding, no jurisdictional error would be established. The Tribunal’s jurisdiction did not depend on making a finding in respect of the availability of benefits in New Zealand. The “no evidence” ground of review, therefore, was not available as it applied only to factual findings that were a pre-condition to the exercise of jurisdiction: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; 207 ALR 12 at [39]. In addition, the Minister submitted, the Tribunal’s factual finding in this case was not critical to its decision. The applicant conceded that the availability of welfare benefits formed no part of its case to the Tribunal. The Tribunal also recognised the possibility that the applicant may live in Samoa rather than New Zealand. An error arising because there was no evidence to support a factual finding that was not critical to the decision-maker’s conclusion was not, the Minister submitted, an error that went to jurisdiction.

Consideration

Ground 1

45    In Visa International Service Association v Reserve Bank of Australia [2003] FCA 977; 131 FCR 300 at [592]-[593], in considering whether a particular decision was of an administrative or of a legislative character, Tamberlin J said:

In RG Capital Radio Ltd v Australian Broadcasting Authority (2001) 113 FCR 185, the Full Court pointed out that there is no simple rule for determining whether a decision is of an administrative or legislative character. The court proceeded to consider some of the matters discussed in the authorities and had regard to those considerations. The court considered the characterisation question taking a cumulative approach to various considerations. The particular matters which the court took into account included the following:

•    Whether the decisions determined rules of general application or whether there was an application of rules to particular cases.

•    Whether there was Parliamentary control of the decision.

•    Whether there was public notification of the making of the regulation.

•    Whether there has been public consultation and the extent of any such consultation.

•    Whether there were broad policy considerations imposed.

•    Whether the regulations could be varied.

•    Whether there was power of executive variation or control.

•    Whether provision exists for merits review.

•    Binding effect.

The court considered that it was necessary to take into account all of these considerations and no single one was determinative. Their Honours came to the conclusion in the context of that case, the determination of a licence area plan under the Broadcasting Services Act 1992 (Cth) was a decision of a legislative and not of an administrative character.

46    In my opinion, it is unlikely that an instrument made under a statutory power setting out a Minister’s policy or a Minister’s statement of government policy has a legislative character. Does this change where the statute, here s 499(2A) of the Migration Act, requires decision-makers to comply with that policy? The Minister is not altering the law but, at most, giving (lawful) directions as to the exercise of the discretion in s 501. If a direction did purport to alter the law as stated in s 501, for example either by narrowing the discretion or by directing decision-makers to take into account irrelevant considerations, then there would be a serious question as to whether that direction had been validly made under s 499.

47    Little attention was paid to the position of the Tribunal in the course of argument. The Tribunal, in exercising a discretion, may take into account government policy, assuming the policy to be lawful, even where there is no statutory direction to do so. This flows principally from s 43 of the Administrative Appeals Tribunal Act 1975 (Cth): see Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 per Brennan J. There seems little doubt that, by legislation, the Commonwealth Parliament may direct the Tribunal to give effect to a specified policy. I do not see that this alters the character, whether legislative or non-legislative, of the direction.

48    Another matter to which little or no attention was paid in argument, but which I take into account, is s 5(4) of the Legislation Act as then in force, which provided that if some provisions of an instrument are of a legislative character and others are of an administrative character, the instrument is taken to be a legislative instrument for the purposes of that Act.

49    I turn next to consider the indicia summarised by Tamberlin J and set out at [45] above.

50    In my opinion, Direction no. 65 does not determine rules of general application but gives directions to the Tribunal as to the policy it must apply in the exercise of the discretion conferred on it by s 43 of the Administrative Appeals Tribunal Act in exercising the power conferred by s 501 of the Migration Act. The Direction does not derogate from the Tribunal’s duty to reach the preferable decision in the particular case before it. Indeed, the Direction has that end as its purpose.

51    There does not appear to be direct Parliamentary control of the decision to issue the Direction: see Williams v Minister for Immigration and Border Protection [2014] FCA 674; 226 FCR 112 at [27] where Mortimer J said that although, by s 499(3), the Minister must lay a direction before each house of Parliament, there was no provision for disallowance. Tabling may thus be seen as a form of accountability and transparency, 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) 32 FLR 469 at 164 per Brennan J.

52    There was public notification of the making of the Direction. It does not appear that there has been public consultation. The Direction consists of broad policy considerations and some detail as to how those considerations are to be applied. The Direction may be varied by the Minister at any time by virtue of s 33 of the Acts Interpretation Act 1901 (Cth). Similarly, there is power of executive variation or control. No provision exists for merits review of the Direction. The Direction is required to be given effect to by the Tribunal but it does not have a binding effect on persons who are not decision-makers as referred to in s 499 of the Migration Act.

53    It should be emphasised again that no one consideration is decisive of the issue: RG Capital Radio Ltd at [42] and [78].

54    To summarise, in my opinion the Direction is not a legislative instrument within the meaning of the Legislation Act primarily because the Minister is giving directions as to the exercise of a broad discretion and, properly construed, the Direction does not alter the scope or content of the power in s 501. The Direction, as a statement of policy, promotes values of consistency and rationality in decision-making, and the principle that administrative decision-makers should treat like cases alike: see Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; 327 ALR 8 at [54].

55    There are decisions of the Full Court to the effect that failure to comply with a direction under s 499 may be a jurisdictional error: the earliest of these cases appears to be Rokobatini v Minister for Immigration and Multicultural Affairs [1999] FCA 1238; 90 FCR 583 at [23] per Whitlam and Gyles JJ (Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 50 FCR 189 being concerned with a Ministerial statement on criminal deportation policy made in the House of Representatives by the then Minister) and the most recent Salahuddin v Minister for Immigration and Border Protection [2013] FCAFC 141; 140 ALD 1 where the point was conceded by the Minister. But the effect of non-compliance does not, in my view, determine the character, whether legislative or not, of the instrument although, as Mortimer J pointed out in Williams at [33], the categorisation may affect issues of construction.

56    In Williams, Mortimer J was considering a submission that an earlier direction under s 499, Direction no. 55, did not bind the Tribunal because the Tribunal did not have functions or powers under the Migration Act and was therefore not covered by the terms of s 499. Her Honour noted that the legal character of that Direction was not argued in the proceeding before her. At [37] her Honour accepted a submission that the effect of that particular Direction was to supply the content for the exercise of the discretion contained in s 501, subject to the qualification that the Direction did not evince an intention to exhaust the permissible matters which may be taken into account in making a cancellation decision.

57    In Milne v Minister for Immigration and Citizenship [2011] FCAFC 41; 120 ALD 405 at [54] a Full Court assumed that Ministerial Direction no. 21 was a subordinate or delegated legislative instrument. However it appears that Ministerial Direction no. 21 was registered under the Legislation Act as it then was with the result that it was deemed by s 5(3) of that Act to be a legislative instrument for the purposes of that Act. As Mortimer J said in Williams at [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 Legislation Act, or by application of general law principles.

58    I do not accept the Minister’s submission that the matter is governed by item 21 of s 7 of the Legislation Act. In particular, I do not accept the Minister’s submission that the Tribunal is a delegate of the Minister by reason that the Tribunal, in reviewing a decision of a delegate, is exercising the powers of a delegate. In my view, the Tribunal is acting independently and exercising its powers under the Administrative Appeals Tribunal Act albeit it is also, by s 43 of that Act, re-exercising the powers of the delegate: see Williams at [72]. Section 43(6) of that Act, which provides that a decision of a person as varied by the Tribunal or as made by the Tribunal in substitution for the primary decision shall be deemed to be a decision of that person, does not alter that conclusion.

59    On the face of it, it may appear curious that the Direction may have a non-legislative character vis-à-vis a delegate and another character vis-à-vis the Tribunal, but any apparent curiosity is referable to the express terms of s 7 of the Legislation Act as then in force, expressly providing the instruments there set out are not legislative instruments for the purposes of that Act (see now s 8).

60    It is not necessary to determine the further submissions made on behalf of the Minister. I should note, however, that I am not persuaded that there would be discretionary reasons to refuse relief. It seems to me that there is a qualitative difference, and one of substance, between a Tribunal deciding, as it normally would, to act in accordance with a lawful Ministerial policy, on the one hand, and a Tribunal considering that it was bound to comply with such a policy, on the other hand: see Rokobatini at [17].

61    I also do not accept the Minister’s submission that even if s 31(1) of the Legislation Act did render the Direction unenforceable, it did not mean that the Direction could not be given legal effect by some other provision, in this case s 499(2A). In my opinion, if the Direction were a legislative instrument, s 31(1) of the Legislation Act would make it unenforceable, notwithstanding the terms of s 499(2A).

62    As to the issue of unenforceability by virtue of s 31 of the Legislation Act and whether the Tribunal’s treatment of Direction no. 65 was caught by that section, the respondent relied on Golden-Brown v Hunt (1972) 19 FLR 438. The relevant issue in that case was whether the Trespass on Commonwealth Lands Ordinance 1972 (ACT) was notified in the prescribed manner. If it was not so notified, the submission was that it was not operative at the relevant time: see at 446. The Court having held that the ordinance was not notified in the prescribed manner, the consequence followed from s 12 of the Seat of Government (Administration) Act 1910 (Cth). Section 12(2) provided that every Ordinance shall be notified in the Gazette and take effect, relevantly, from the date of notification. It was on that basis that Fox J, at 448, and Blackburn and Connor JJ, at 451, held that the Trespass on Commonwealth Lands Ordinance was not operative at the relevant time. That time was when the police purported to act under the Trespass on Commonwealth Lands Ordinance in relation to what came to be known as the Aboriginal Embassy on unfenced lawn in front of the then Parliament House, or at the time of the hearing. In my opinion, this decision does not assist the Minister's submission as to the construction of s 31 of the Legislation Act.

63    I do not accept the Minister’s submission that the Tribunal does not enforce the Direction nor is it enforced against the applicant and the related submission that s 31(1) of the Legislation Act did not render the Direction “invalid”, “void” or incapable of having any legal effect. In my opinion, the word “unenforceable” in s 31(1) means that the unregistered instrument may not be used to affect a person’s rights or interests. The reference in s 31 to “by or against the Commonwealth” or “by or against any other person or body” seem to me to be apt to include the Minister or a delegate of the Minister or the Tribunal. It would follow, in my opinion, that in applying the Direction in its exercise of discretion to decide to cancel the applicant’s visa, the Tribunal was enforcing the Direction. Alternatively, at its simplest, s 31(1) of the Legislation Act would mean that the Tribunal would not be required to comply with the Direction as no remedy would lie to enforce it: see Pavey & Matthews Pty Ltd v Paul [1987] HCA 5; 162 CLR 221 at 226 per Mason and Wilson JJ. As I said it is unnecessary to decide this issue since I have concluded that the Direction was not a legislative instrument within the meaning of the Legislation Act.

Ground 3

64    In my opinion, the reference by the Tribunal to what the Australian community expected of the Australian Government was not a matter that required evidence but was a statement of the views or policy of the Government. The language in paragraph 6.3(2) of the Direction, that the Australian community expects that the Australian Government can and should cancel the visas of non-citizens if they commit serious crimes in Australia, is found in a list of seven “Principles”. There is a further reference to the expectations of the Australian community in paragraph 9.3 of the Direction where the statement is made that the Australian community expects non-citizens to obey Australian laws while in Australia. It states that where a non-citizen has breached, or where there is an unacceptable risk that they will breach, this trust or where the non-citizen has been convicted of offences in Australia, it may be appropriate to cancel the visa held by such a person. Visa cancellation may be appropriate, the paragraph states, “simply because the nature of the character concerns or offences were such that the Australian community would expect that the person should not continue to hold a visa”. The paragraph ends by stating that decision-makers should have due regard to the Government’s views in this respect.

65    This ground of review does not attack the statements in Direction no. 65. In my opinion it is open to the Minister to make a statement of the Government’s views as to the expectation of the Australian community and for the Tribunal to act on that statement.

66    I conclude that there was no jurisdictional error in the statement of the Tribunal, at [109]: “I have no evidence to enable me to determine the expectations of the Australian community in this matter, other than the guidance provided by the Direction itself” or in the Tribunal’s consideration of the expectations of the Australian community.

67    I turn finally to the Tribunal’s consideration of the extent of any impediments if Mr Uelese were removed from Australia, as this was the context of what the Tribunal said at [128] which founded this aspect of ground 3 of the application to this Court. I have set out this material at [24] above.

68    When addressing the extent of impediments if the applicant were removed, the Tribunal noted that there was no specific evidence of any social, medical and/or economic support available to Mr Uelese in either New Zealand or Samoa, but said: “I take into account that at least in New Zealand Mr Uelese would have access to government benefits similar to those available to him in Australia”.

69    In my opinion, that statement is no more than a broad proposition as to the availability of government benefits in New Zealand and not one that required evidence as to the amount of a benefit, the terms and conditions of that benefit or the eligibility criteria for that benefit. The applicant did not put forward to the Tribunal that the non-availability of welfare benefits constituted an impediment which he may face if removed from Australia. I also note that the applicant before me has not put forward any material which suggests that the Tribunal was mistaken in its statement. In any event, I am not satisfied that, in the circumstances, the Tribunal’s statement could constitute jurisdictional error.

Amendment

70    For completeness I note that on 23 March 2016 I refused the applicant’s application to amend, to claim, in relation to the first limb of ground 3, that the Tribunal had seriously misconstrued the terms of Direction no. 65 and that, by reason of that serious misconstruction, the Tribunal had failed to take into account a relevant consideration.

Conclusion

71    The application should be dismissed with costs. I will hear the parties on whether any particular order should be made flowing from the apparent fact that the Court Book contains hundreds of pages which were irrelevant to the application to this Court.

Associate:

Dated:    12 April 2016