Federal Court of Australia

Kelly v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 396

ORDERS

THE COURT ORDERS THAT:

1.    A writ of certiorari be issued quashing the decision of the respondent under section 501CA(4) of the Migration Act 1958 (Cth) not to revoke the cancellation of the applicant’s class BF transitional (permanent) visa under section 501(3A).

2.    A writ of mandamus be issued requiring the respondent to determine the question of such revocation according to law.

3.    There be no order as to costs.

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

REASONS FOR JUDGMENT

BEACH J:

1    The applicant seeks judicial review of a decision of the Minister under s 501CA(4) of the Migration Act 1958 (Cth) not to revoke a decision to cancel his class BF transitional (permanent) visa under s 501(3A).

2    The applicant advances a single ground of review, albeit with alternative strands of asserted error. The ground is principally directed to the Minister’s reasoning with respect to the so-called “expectations of the Australian community”, a concept dealt with in Direction 90. I should note that because the Minister made a personal decision not to revoke, he was not required to comply with Direction 90 but he nevertheless purported to apply it.

3    For the following reasons, I would uphold one aspect of the applicant’s challenge. Accordingly, the Minister’s decision must be set aside.

4    It is useful to first address the background to the matter and the Minister’s reasoning.

Some background

5    The applicant was born in the Republic of Ireland in 1968 and first arrived in Australia the following year aged 13 months. From 1 September 1994, the applicant held a class BF transitional (permanent) visa.

6    On 29 August 2016, the Victorian County Court sentenced the applicant to a total effective sentence of 4 and a half years’ imprisonment for six charges of indecent acts with a child.

7    On 23 February 2018, the applicant’s visa was cancelled under s 501(3A). By reason of the 2016 conviction, the applicant did not satisfy the character test because of ss 501(6)(a) and (7)(c). As at February 2018 the applicant was still serving a sentence of full-time imprisonment.

8    On 14 March 2018, the applicant requested revocation of the cancellation decision.

9    The applicant’s representative made many representations to the Minister between 16 July 2018 and 31 July 2020 and provided various materials to support the revocation sought.

10    Representations made on 16 July 2018 were made by reference to the then Direction 65. On 14 November 2019, representations were made by reference to the then Direction 79, which had commenced on 28 February 2019. I note that Direction 79 was replaced with Direction 90 which commenced on 15 April 2021.

11    On 3 September 2020, the Minister decided not to revoke the mandatory cancellation of the visa. On 10 March 2021, I set aside the Minister’s decision by consent.

12    On 25 March 2021, the applicant was invited to submit further information.

13    Between March and July 2021, the applicant’s representative made further representations and provided other material, including material relating to the applicant being diagnosed with motor neurone disease (MND).

14    On 19 April 2021, the applicant was invited to make submissions concerning Direction 90, which as I say had commenced a few days earlier. On 21 April 2021, representations were made concerning Direction 90 to the effect that the applicant continued to rely on all previous submissions provided in support of revocation.

15    On 23 September 2021, the Minister decided not to revoke the mandatory cancellation of the applicant’s visa. The consequence flowing from the non-revocation will be to return the applicant to the Republic of Ireland, which he emigrated from in 1969.

Minister’s reasons

16    Now the applicant failed the limb of the “character test” in s 501(6)(a) (substantial criminal record) when read with s 501(7)(c) (sentenced to a term of 12 months or more). So, s 501CA(4)(b)(i) could not justify revocation. Accordingly, the Minister proceeded to consider under s 501CA(4)(b)(ii) whether there was “another reason” why the cancellation decision should be revoked.

17    The Minister stated that he had had regard to Direction 90 in deciding whether there was another reason to revoke the cancellation of the applicant’s visa, although the Minister was not bound to apply the Direction.

18    Now the Minister stated that he was “mindful that Mr Kelly has made representations on the basis of the Direction, on the understanding that the Direction provides a broad indication of the types of matters that the Minister, when acting personally, is likely to take into account in deciding whether or not to revoke the cancellation decision” (at [11]).

19    But that statement was not as accurate as it should have been. In fact, most of the applicant’s representations were made before Direction 90 had been made. In particular, on 16 July 2018, and in advance of the previous Minister’s decision, the applicant’s representative had made detailed representations including:

In Singh and Minister for Immigration and Multicultural and Indigenous Affairs [fn: [2004] AATA 370, [60]] DP Forgie endorsed the view expressed by DP Block in Jupp and Minister for Immigration and Multicultural and Indigenous Affairs [fn. [2002] AATA 458] on the meaning of these terms in an earlier version of the Direction:

It assumes (incorrectly) that there is an Australian community which thinks as one. The supporters of One Nation would have one view as regards immigration and there is of course a very large diametrically opposed body of opinion in Australia. I construe this reference as being correctly made to the middle-of-the-road reasonable members of the Australian community who do not hold extreme views one way or another. And I think that there is a further limiting factor and that is that one must import into that Australian community, knowledge of the evidence before me.

It is submitted that the above remains apposite today.

…

20    The last sentence of the quoted passage referred to importing “into that Australian community, knowledge of the evidence before me”. Now these representations in July 2018 were by reference to Direction 65. In submissions on 21 April 2021 by the applicant’s representative and in a context where Direction 90 had commenced, the earlier submissions were sought to be refreshed and it was said:

In respect of the further invitation to comment on the introduction of Direction No. 90 in respect of which we have been provided 28 days to respond, we continue to rely on all previous submissions and documents provided in support of Brian’s revocation matter and this material should be taken as a response to, and considered in light of, Direction No. 90.

Further, we emphasise the following:

1.    The introduction of Direction No. 90 does not change the nature of Brian’s offending. It has always been accepted that Brian’s offending was serious. Nor does it change the weight attributed to considerations in favour of revoking Brian’s visa cancellation;

2.    Most critically, Brian is extremely unwell with a diagnosis which will end his life shortly and renders him unfit to travel;

3.    Brian cannot in any way be considered a risk to the Australian community given his increasing physical limitations brought about by the diagnosis of MND.

21    Relevantly to the protection of the Australian community, the Minister found that the applicant’s offending was “very serious, given the nature of the relationship with the victim (a child in his care), the prolonged period of offending, the persistent nature of offending and the sentences imposed” (at [24]). It was said that any future offending of a similar nature would have the potential to cause “physical/psychological injury to members of the Australian community” (at [27]).

22    But there was a “very low risk” that the applicant would reoffend (at [45]). That finding was based on the applicant’s recent diagnosis with MND and treatment needs that “largely preclude the possibility of any situation comparable to that which led to his offending, arising in the foreseeable future” (at [44]).

23    The Minister accepted that the progression of the applicant’s MND will “create a high level of disability which significantly reduces his risk of reoffending”, but did not accept that the applicant’s present condition “precludes any form of sexual offending” (at [44]). But nevertheless he acknowledged that the circumstances of his illness and treatment “largely preclude the possibility of any situation comparable to that which led to his offending, arising in the foreseeable future”.

24    The Minister found that the applicant’s conduct involved family violence as defined in Direction 90. The Minister gave this consideration significant weight against revocation. Again, the applicant’s offending was said to be “very serious” (at [58]).

25    With respect to the “expectations of the Australian community”, the key concept debated before me, the Minister relevantly stated:

62.    As explained in the Direction, the Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government not to allow such a non-citizen to enter or remain in Australia.

63.    As also stated in the Direction, non-revocation of the mandatory cancellation of a visa may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not continue to hold a visa. In particular, the Direction states that the Australian community expects that the Australian Government can and should cancel a visa if the holder raises serious character concerns through certain kinds of conduct. Relevantly in the case of Mr Kelly, those specified kinds of conduct include sexual assault or other sexually abusive behaviour. Noting that Mr Kelly has engaged in conduct of that nature, I find that he raises serious character concerns and the community expectation described above applies in this case.

64.    As explained in the Direction, the Government’s view is that the above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.

65.    I have noted Mr Kelly’s representative Ms Anderson’s submission that expectations of the Australian community are those of “middle-of-the-road reasonable members of the Australian community who do not hold extreme views one way or another” (as expressed in Jupp and Minister for Immigration and Multicultural and Indigenous Affairs and endorsed in Singh and Minister for Immigration and Multicultural and Indigenous Affairs).

66.    Ms Anderson further submits that Mr Kelly has members of the Australian community who support him and that the risk he poses ‘should not be regarded as unacceptable’ he should also be given a ‘fair go’ and a chance to prove he will not reoffend by allowing him to remain in Australia.

67.    As the Direction makes clear, the consideration here is about the Government’s views in relation to what the Australian community expects as a norm, as articulated in the Direction; it is not about what the community may expect in relation to the particular non-citizen having regard to the specific circumstances. Nevertheless, I have considered Mr Kelly’s specific circumstances to the extent relevant to my consideration of the matters discussed in other parts of this statement of reasons.

68.    As also explained in the Direction, the consideration here is about the expectations of the Australian community as a whole, rather than any expectations that particular members may have. While I accept that certain members of the Australian community may expect Mr Kelly to be given a chance to prove he will not reoffend and live out his last remaining years in Australia with his family, I am of the view that the broader Australian community’s general expectations about non-citizens, as articulated in the Direction, apply in this case. I have attributed this consideration significant weight against revocation of the cancellation of Mr Kelly’s visa.

26    The Minister noted the representative’s submissions that the expectations of the Australian community are those of “middle-of-the-road reasonable members of the Australian community who do not hold extreme views one way or another”, and that the applicant should be given a “fair go”. But the Minister stated that the consideration “is about the Government's views in relation to what the Australian community expects as a norm” and “not about what the community may expect in relation to the particular non-citizen having regard to their specific circumstances”. The Minister stated that, nevertheless, he had considered the applicant’s specific circumstances to the extent relevant in other parts of his reasons.

27    The Minister accepted that “certain members of the community may expect Mr Kelly to be given a chance to prove he will not reoffend and live out his last remaining years in Australia with his family”, but was of the view that “the broader Australian community’s general expectations about non-citizens, as articulated in the Direction, apply in this case”. The Minister gave this consideration significant weight against revocation (at [68]).

28    The Minister then went on to state and accept the following matters, but only after his finding of “significant weight” in [68].

29    As to the extent of impediments if returned to the Republic of Ireland, it was accepted by the Minister that the applicant had been recently diagnosed with MND and “he will likely deteriorate to a disability level over the next few months” (at [72]). It was accepted that the applicant’s “health is poor and declining rapidly” (at [76]) and that “[a]s Mr Kelly’s disease progresses he will have complex needs and will require a high level of care, support and complex equipment” (at [77]). It was said that whilst the applicant, as a citizen of the Republic of Ireland, would have equal access to health services as other citizens, he would also “require personal assistance on a daily basis to deal with his medical needs” (at [76]) and that “[h]e would not be able to live in Ireland alone” (at [77]). It was said that in Australia, “such assistance could be provided by his fiancée” (at [76]). But it was accepted that it is “unlikely that his fiancée (with her own medical needs) would be in a position to accompany him”, and there is “no evidence before me that Mr Kelly has any other family who would be willing to migrate with him and provide the necessary support” (at [77]). So, “even assuming he could make the journey, Mr Kelly would face extreme difficulty in moving to Ireland permanently, particularly if his fiancée is unable to accompany him” (at [78]). The Minister gave this significant weight in favour of revocation.

30    As to the links to the Australian community, it was said that the applicant has “strong family and social ties to Australia” (at [79]). In particular, “[his fiancée’s] psychological health and subsequently her physical health would be adversely impacted by either a separation from Mr Kelly or a relocation to Ireland” (at [89]), and the applicant’s immediate family and friends would experience “emotional hardship” (at [93]). Indeed, the applicant would never see his parents again “because of their ill health and age and his ill health if he is removed from Australia” (at [93]).

31    It was also accepted that the applicant “has resided in Australia for some 50 years, having arrived as an infant aged one year”, and “has been contributing positively to the community in that time” (at [96]).

32    Further, it was accepted that non-revocation “could result in indefinite detention, particularly as [Mr Kelly] is unfit for travel and likely to remain so” (at [100]). And it was said that “further detention could have adverse impacts on Mr Kelly’s mental and physical health, having been given a life expectancy of one to two years”.

33    Now such factors weighed in favour of revocation, but the Minister gave great weight to the serious nature of the crimes committed (at [103] and [104]). Further, the Minister was of the view that non-citizens who have engaged in sexual assault or other sexually abusive behaviour raise character concerns so serious that the Australian community would expect that they should not continue to hold a visa. He said (at [105]):

Furthermore, I am of the view that non-citizens who have engaged in sexual assault or other sexually abusive behaviour raise character concerns so serious that the Australian community would expect they should not continue to hold a visa. I give this primary consideration significant weight as well towards non-revocation of the visa cancellation.

34    The Minister took into account that given that the applicant had lived in Australia for most of his life from a young age, Australia may afford a higher level of tolerance of the applicant’s criminal conduct than it would otherwise. But the Minister said that he was “cognisant that where harm could be inflicted on the Australian community, even strong countervailing considerations may be insufficient” to revoke the cancellation decision (at [106]). The Minister also stated that the inherent nature of family violence “is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community” (at [107]).

35    The Minister then went on to find that the factors which weighed against revocation of the applicant’s visa outweighed the factors in favour of revocation. Therefore, he was not satisfied that that there was “another reason” why the cancellation decision should be revoked.

The ground of review and its six strands

36    There is only one ground of review in the following form:

The Minister erred in: (a) finding that the “Australian community” expects the Government not to allow the applicant, being a person who has committed certain crimes, to remain in Australia, irrespective of the circumstances of the applicant or the adverse impact of non-revocation upon him and others; and/or (b) attributing “significant weight” to these findings in assessing whether there was “another reason” to revoke cancellation, cumulative upon the weight that the Minister attributed to other considerations including the nature and serious of the applicant’s offending.

37    As originally expressed, the particulars given were the following:

a.    The Minister found that “the Australian community”: (i) “as a norm, expects the Government not to allow a non-citizen” who “has engaged in serious conduct in breach of” Australian laws to remain in Australia ([62]); (ii) “expects that the Australian Government can and should cancel a visa if the holder raises serious character concerns through certain kinds of conduct” ([63]).

b.    Moreover, the Minister: (i) found that these “expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing harm to the Australian community” ([64], see also [68], [105]); and (ii) found that these expectations apply irrespective of the circumstances of the relevant individual ([67], see also [68], [105]).

c.    The Minister attributed “significant weight” to these findings in assessing whether there was “another reason” to revoke cancellation ([68], [105]). The weight that the Minister placed on these findings was cumulative to the weight that he attributed to other considerations including the nature and seriousness of the applicant’s offending: [45], [58]-[59]). [104], [105], [106].

d.    The “significant weight” that the Minister attributed to these findings was material to his finding that “[o]n balance … the factors that weigh against revocation of [the applicant’s] visa outweigh the factors in favour of revocation” ([108]).

e.    The Minister’s approach was irrational or unreasonable for any one or more of these reasons:

i.    There is in truth no objective, ascertainable basis for making a finding as to what “the Australian community”, in fact, “expects”: see, e.g., YNQY [2017] FCA 1466 at [76]; FYBR (2019) 272 FCR 454 at [66], [87].

ii.    In truth, the finding by the Minister as to what “the Australian community” “expects” can rise no higher than the expression by the Minister of a value judgment as to whether persons who engage in conduct of the kind that the applicant engaged should be allowed to remain in the Australian community.

iii.    However, that value judgment:

1.    insofar as it only concerns a “norm” (i.e., that “serious” offending would generally weigh against non-revocation) is truistic, and adds nothing independent upon which cumulative “weight” can rationally or reasonably be placed in assessing whether there is “another reason” to revoke a cancellation decision additional to the attribution of weight to an assessment of the nature and seriousness of the offending itself; and

2.    insofar as it concerns the outcome of this case, cannot rationally or reasonably be formed as an independent consideration, irrespective of other matters bearing on the ultimate evaluative task under section 501CA(4)(b), including the individual circumstances of the case (such as the consequence here: indefinite detention of a man with a morbid condition), and therefore is not rationally or reasonably capable of being an independent “consideration” to which “significant weight” can be attributed in performing the ultimate evaluative task.

38    Prior to the hearing, the following additional particular was given to sub-paragraph (e):

iv.    Alternatively, the Minister erred by failing to consider the applicant’s representations as to what the “Australian community” “expects” or how he should go about his task of ascertaining this, including by reasoning that “the consideration” (i.e., as embodied in clause 8.4 of the Direction, which did not bind him) “is not about what the community may expect in relation to the particular non-citizen having regard to the specific circumstances”.

39    On the day of the hearing a further particular was sought to be added to sub-paragraph (e):

v.    Further or alternatively, insofar as the Minister purported to apply clause 8.4 of the Direction as a “policy”, he misconstrued the Direction and made an error of the kind in Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 50 FCR 189 at 208. Properly construed, and reflecting the construction of Direction 65 by Stewart J in FYBR v Minister for Home Affairs (2019) 272 FCR 454, the “community expectations” expressed in Direction 90 do not speak to the outcome in any particular case. Yet the Minister reasoned on the basis that the Australian community “would expect” that a person in the applicant’s circumstances should not continue to hold a visa (esp. [105]).

40    After the hearing, a yet further particular was sought to be added to sub-paragraph (e):

vi.    Further or alternatively, assuming that the Minister did not err in finding that the Australian community would expect that a non-citizen such as the applicant who had committed a serious crime “should not continue to hold a visa” ([68], [105]) but without having regard to his “specific circumstances” ([67]), the Minister erred in failing to give active intellectual consideration to what weight to attribute to those “expectations”, especially in light of the particular representations and evidence before him as to the applicant’s “specific circumstances”.

41    I will give leave to the applicant to rely upon these additional particulars and, to the extent necessary, to file and serve a further amended originating application so as to incorporate them. In essence then, there are six strands to the applicant’s challenge, each of which focus on cl 8.4 of Direction 90 concerning “expectations of the Australian community”.

Expectations of the Australian community

42    Now what are the “expectations of the Australian community” to which the consideration relates? Is the question concerned with the expectations as to the conduct of persons such as the applicant, that is, whether the community expect laws to be adhered to? Or is the question concerned with what decision should be made by the Minister in a given case, that is, to cancel or not cancel or to revoke or not? Further, in light of the answers to these questions, how, if at all, can the “expectations of the Australian community” be assessed? And is it the Government’s or the Minister’s perception or view of such expectations? Or is it something else? And is it a construct, that is, what a “reasonable” or “middle-of-the-road” member of the Australian community would expect, or something else?

43    The applicant sought to explore answers to these questions by reference to FYBR v Minister for Home Affairs (2019) 272 FCR 454. In FYBR, the majority, Charlesworth and Stewart JJ, gave separate reasons, but those reasons according to the applicant in some respects do not cohere.

44    Now they did agree that it is untenable to suggest that there is an Australian community that holds, or would hold if they were aware of the relevant facts, an homogenous view as to the outcome in a given case, that is, whether a visa should be cancelled or whether a cancellation decision should be revoked. But from this common premise, the applicant says that their Honours’ reasoning diverged.

45    According to the applicant, Charlesworth J held that there were two expectations. The first expectation was concerned with the conduct of persons: “[t]he Australian community expects non-citizens to obey Australian laws while in Australia” (at [69]). This expectation is “a reflection of the rule of law” (at [70]). The applicant says that this is essentially truistic. The second expectation was concerned with the outcome in the particular case. In that respect, her Honour held that “[i]n the particular case, the Australian community will either expect the visa to be refused, or it will not” (at [68]). But according to the applicant this contradicts her Honour’s premise that “there does not exist in fact” any such view. How can this perceived contradiction with respect to the second expectation be reconciled, so the applicant asks?

46    Now her Honour said that the former Direction 65 expressed the Government’s “view” about the expectations of the Australian community. But, according to the applicant, if it is absurd to suppose that there exists any expectation of the Australian community about the outcome in a given case, it is not open to the Government, acting reasonably, to form a “view” that such an expectation exists. In particular, the Minister does not have personal or specialised knowledge of the expectations of the Australian community as to the outcome in a given case, nor is it common knowledge. The applicant’s counsel, Mr Nick Wood SC, colourfully said that the Government cannot pull itself up by its bootstraps.

47    According to the applicant, a suitable reconciliation is provided by her Honour’s explanation (at [68]) that Direction 65 simply deems what the expectations are, irrespective that there might in fact be no basis for such a conclusion. The applicant then said that such a conclusion might have invited consideration as to whether Direction 65 was valid, but no challenge to the validity of Direction 65 was raised in FYBR. And before me of course, no challenge is made to Direction 90. Indeed, Direction 90 was not required to be applied given the Minister’s personal decision-making, so such a challenge in the present context would have been inapposite.

48    Now according to the applicant, Stewart J held that the “‘community expectations’ as expressed by the Government do not speak to the outcome in any particular case – they are to be understood and applied normatively” (at [91]). As to the first expectation identified by Charlesworth J, his Honour held that this was a “normative principle … on which there would likely be almost universal agreement” (at [95]). But according to the applicant, unlike Charlesworth J, Stewart J did not construe Direction 65 as deeming a second expectation about the outcome in any case. Rather, his Honour held that deemed community expectations were “simply, and informally, expressed as follows: ‘If you break the law that will be held against you, … and it may even be decisive.’.” He said that “[t]his limited expression of ‘community expectations’ by the Government is, one would expect, quite uncontroversial which is an attractive feature given the heterogeneity of views in this area.” (at [101]). And he said “[t]he community expectations … speak normatively; they are to be applied in every case but they are not expressed in relation to any particular case. This means that it would be wrong for the decision-maker to ask themselves a question along the lines of ‘what would the community expect in this case?’” (at [103]).

49    The applicant then synthesised his position in the following terms.

50    First, it is untenable to suppose that there is any “expectation” of “the Australian community” in relation to the outcome of a given case. In that respect, so the applicant said, it is equally untenable to suppose that “the Australian community” would balance particular evidence in a particular case resulting in a singular expectation as to the outcome of a particular case, or “the Australian community” would have a singular expectation as to the outcome of a particular case based on a single item of evidence, such as the nature of the person’s crime, irrespective of other evidence, such as the risk of recidivism, the present circumstances of the person or the consequence of an adverse decision in their case.

51    Second, the applicant said that if “expectations of the Australian community” are limited to normative expectations about conduct, that is, the Australian community expects non-citizens to obey the law, and that serious breaches of the law will and should count in decision-making, then the Minister could form those views. That is essentially because they are truistic. But according to the applicant, they add nothing to what other elements of Direction 90 and the Minister’s reasoning in this case deal with. So, if the “expectations of the Australian community” amount to the proposition that the community would expect that consideration be given to the seriousness of offending in making the decision, independently of other matters such as the risk of recidivism or the present circumstances of the applicant, then that is what clauses 8.1.1 (nature and seriousness of conduct) and 8.2 (family violence committed by the non-citizen) of Direction 90 require. But the applicant then says that it is irrational, then, to somehow attribute additional “significant weight” to the “expectations of the Australian community” in making the ultimate decision.

52    Third, the applicant says that if the “expectations of the Australian community” is really a construct, then it is important to be clear about what that construct is. If it is a construct in the sense of what “middle-of-the-road” members of the Australian community would expect, referring to Jupp and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 458 endorsed in Singh and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 370 and previously relied on by the applicant in earlier representations, then according to the applicant it is difficult to see how it is reasonable for the Minister to place weight on the constructive views of persons to whom knowledge of the specific circumstances of the case is not attributed. Likewise, if “expectations of the Australian community” is really a code for the Minister’s conception of the “public interest”, then it is likewise difficult to see how the Minister could assess this or reasonably place weight on it without considering the specific circumstances of the case.

53    Let me now turn to the specific strands of the applicant’s criticisms.

Strands 1(e)(i) to (iii)

54    The applicant says that the Minister purported to conclude that the “expectations of the Australian community” were about the outcome, namely, that where a non-citizen engages in certain conduct, “the Australian community … expects the Government to not allow … a non-citizen to enter or remain in Australia” (at [62]), and “the Australian community expects that the Australian Government can and should cancel a visa” (at [63]).

55    Further, the Minister twice uses the expression “as a norm” (in [62] and [67]). But the applicant says that the significance of the use of that apparent qualifier is opaque. Now in FYBR, “norm” was used to describe community expectations of the conduct of a person, rather than expectations about the outcome of a given case. The applicant says that it makes little sense to speak of an expectation “as a norm” of the outcome of cases.

56    Now the applicant says that the Minister could be taken to mean that the Australian community expects that where a person engages in serious conduct, the Government will always not allow such a person to enter or remain in Australia. But if so, the applicant says that that falls foul of the common position of Charlesworth and Stewart JJ in FYBR. And he says that the problem is not avoided by saying that it is just the Minister’s “view”. In this event, so he says, strand 1(e)(i) should be upheld.

57    Alternatively, the applicant says that perhaps the Minister could be taken to mean that the Australian community expects that where a person engages in serious conduct, the Government should normally, but not always, not allow such a person to enter or remain in Australia. But he says that if so, that reflects the essentially truistic proposition identified by Stewart J in FYBR, that is, all else being equal, serious offending should result in cancellation and removal. But if so, according to the applicant, this all adds nothing to the other elements of Direction 90 and the Minister’s reasoning in this case. So, the applicant says that having found that the applicant’s offences were “very serious” and involved “family violence” and giving “significant weight” to this, it is irrational then to somehow attribute additional significant weight to the expectations of the Australian community when making the ultimate decision. But the Minister clearly did so, according to the applicant. So he says that strands 1(e)(ii) and (iii) should be upheld.

58    Further, the applicant says that if the Minister is somehow to be taken to use the concept of the “expectations of the Australian community” as a construct or code, then it is impossible to see how the Minister could use it to make a value judgment about the appropriate outcome of the present case without considering the individual circumstances of this case, which he did not do.

59    Further, so the applicant asserts, reasonable members of the Australian community could not have an “expectation”, nor the Minister himself could reasonably evaluate, that the outcome of a case such as this would or should turn solely on the seriousness of the offending whilst ignoring evidence before the Minister about the applicant and his circumstances. Yet the Minister purported to make a finding as to the “expectations of the Australian community” as to the outcome of the decision-making process, and then attribute “significant weight” to those expectations, irrespective of this evidence. The applicant says that this involved error.

60    I would reject this aspect of the applicant’s challenge. Let me begin with some preliminary matters.

61    Although the Minister in the present context was not bound by Direction 90, this does not mean that the Minister was precluded from having regard to it. Indeed, it was appropriate for the Minister to apply the policy contained in Direction 90.

62    First, the applicant was invited to make representations by reference to the relevant Direction (as it was from time to time), and was informed that Direction 90 provided a broad indication of the matters that the Minister, when acting personally, was likely to take into account. Now true it is that many of the applicant’s representations, including the representation about the effect of community expectations, were provided before Direction 90 was made. But the applicant’s representatives expressly stated that their previous submissions should be taken as a response to, and considered in light of, this Direction.

63    Second, for the Minister to adopt the meaning of community expectations from Direction 90 promotes consistency in decision-making. The fact that the Minister chose to apply this policy does not mean that the Minister treated himself as bound by Direction 90.

64    Now the applicant’s argument, viz, that the community expectation that serious offending generally weighs against non-revocation adds nothing of cumulative weight to the s 501CA decision is not sustainable.

65    This argument is contrary to the plain wording of Direction 90, to which the Minister permissibly had regard. Direction 90 treats the expectations of the community as a separate primary consideration that is taken into account in making a decision under s 501CA(4). The applicant’s argument is no more than an impermissible attack on the merits of the Direction. Moreover, the discretion in s 501CA(4) is sufficiently broad that the Minister may legitimately take into account his personal assessment of the expectations of the Australian community, separate from any consideration of the risk that a person poses to the community. It is plain from the Minister’s reasons that he applied community expectations in the sense that that term is used in Direction 90.

66    Now community expectations in Direction 90 embraces the Government’s statement of those expectations, and turns largely on the nature and seriousness of offending. In this sense, it may be accepted that there is an overlap between the community expectations consideration in cl 8.4, and the protection of the community consideration in cl 8.1. But the fact that there is an overlap between different considerations does not suggest any unreasonableness or irrationality in having regard to community expectations as a separate factor.

67    Further, it is incorrect to assert that the consideration of community expectations adds nothing to the consideration of the nature and seriousness of offending for the purposes of protection of the community. The expectations in cl 8.4 apply regardless of whether the non-citizen poses a measurable risk of causing harm. And community expectations look at the nature and seriousness of offending with a different emphasis, namely, what certain types of offending indicates about a person’s character. This point is reinforced by the principle in cl 5.2(3), that the Australian community expects that the Government should cancel the visas of non-citizens if they have engaged in conduct which raises serious character concerns. And the community expectation in cl 8.4 includes, but is broader than, offending involving family violence. Therefore, this consideration overlaps with, but is not subsumed by, the primary consideration in cl 8.2.

68    Further, the applicant says that the Minister’s decision was illogical or irrational because a value judgment about the outcome of the case cannot rationally or reasonably be formed as an independent consideration, without considering the individual circumstances of the case. But that argument is contrary to FYBR.

69    Charlesworth J held that cl 11.3 of Direction 65 contains a statement of the Government’s views of the expectations of the community. The task of the decision-maker was to identify the Government’s view about community expectations in the particular case, to have due regard to that view, and generally afford that view more weight than other non-primary considerations. Significantly, her Honour held that “importing into cl 11.3 all countervailing factors bearing on the ultimate decision would render cl 8(4) of the Direction [dealing with the balancing of primary and other considerations] unworkable” (at [74]). Further, Charlesworth J accepted that the norm in cl 11.3 will weigh against refusal, at least in most cases. Her Honour held that the Government’s assessment of community expectations is that a non-citizen who has committed a serious offence should not be granted a visa. But a decision-maker may decide in a particular case that the appropriate decision is one that does not give effect to that community expectation. In such a case, the decision-maker would depart from the relative weight that cl 8(4) would generally give a primary consideration.

70    Stewart J also held that community expectations are what the Government says they are. These expectations do not speak to the outcome in any particular case, which means that the decision-maker should not ask what the community would expect in a given case. But it is necessary for the decision-maker to determine the amount of weight that is appropriate in the particular case.

71    So, Charlesworth J and Stewart J both held that community expectations did not require a decision-maker to consider countervailing factors. But those countervailing factors might cause the decision-maker to give lesser weight to community expectations, relative to other considerations.

72    In summary then, the applicant’s argument that it is not rational to consider community expectations without considering all the circumstances of a case is contrary to FYBR.

73    In my view, there was no error in the Minister’s assessment of community expectations. The Minister’s approach was supported by FYBR. The Minister expressly stated that the expectations of the Australian community are “not about what the community may expect in relation to the particular non-citizen having regard to their specific circumstances” (at [67]).

74    Further, the “norm” to which the Minister refers (at [67]) is that, in accordance with cl 8.4(1), the Australian community expects non-citizens, such as the applicant, who have engaged in serious conduct in contravention of the expectation that they obey the law not to be allowed to remain in Australia.

75    Further, the Minister was not following any construct “in the sense of what ‘middle-of-the-road’ members of the Australian community would expect”.

76    In summary, these strands are not made out.

Strand 1(e)(iv)

77    It is said that the applicant made representations in 2018 not by reference to any predecessor to Direction 90 but instead by reference to the Jupp and Singh line, to the effect that an assessment of the expectations of the Australian community or reasonable such members should involve consideration of all of the particular evidence of the case.

78    It is said that the Minister incorrectly approached his task on the basis that the applicant’s representations were made by reference to Direction 90 or its predecessor when most representations including what I have just recited were not.

79    In any event, it is said that the Minister acted as if he was bound by Direction 90, which he was not, rather than independently assessing the applicant’s representations. In particular, he stated (at [67]):

As the Direction makes clear, the consideration here is about the Government’s views in relation to what the Australian community expects as a norm, as articulated in the Direction; it is not about what the community may expect in relation to the particular non-citizen having regard to the specific circumstances. Nevertheless, I have considered Mr Kelly’s specific circumstances to the extent relevant to my consideration of the matters discussed in other parts of this statement of reasons.

80    Yet according to the applicant “the consideration” that the Minister was required to take into account was the applicant’s representations. It is said that the applicant’s representations were not lawfully considered by the Minister by just stating that they collided with Direction 90, which did not bind the Minister, and stating that “it”, that is, Direction 90, is “about” something else.

81    It is said that the applicant essentially invited the Minister to consider that the “expectations of the Australian community” were different to that which Direction 90 asserted. It is said that the Minister was obliged to consider that representation, or else he was effectively self-binding himself to the policy reflected in Direction 90. It is said that he did not give such consideration.

82    I reject this strand as well.

83    Of course, the Minister was required to give active intellectual consideration to any clearly articulated and substantial representation made by the applicant. And it is not in doubt that a representation was made by the applicant to the effect that consideration of the expectations of the Australian community should involve consideration of all of the particular evidence of the case.

84    But as the Minister correctly points out, a failure to consider a submission as to the proper meaning of community expectations is not itself “another reason” to revoke cancellation of a visa for the purposes of s 501CA(4). If the Minister misunderstood the meaning of community expectations in purporting to apply Direction 90, then that error exists regardless of what the applicant said about it.

85    But if the Minister applies the correct test of community expectations, as he did here, then nothing in s 501CA(4) requires the Minister to consider a different submission from the applicant’s representative on that aspect.

86    But in any event, the Minister did consider the applicant’s representation. The Minister set out the substance of the submission, and gave the Minister’s contrary approach to assessing community expectations. The Minister correctly stated that the other matters said by the applicant to be relevant to community expectations were considered elsewhere in the reasons. The Minister found that the applicant had been making a positive contribution for over 30 years to the community and took that into account, and recognised the negative effect of non-revocation on his friends in Australia. But the Minister found that any tolerance the Australian community may have for the applicant based on the length of time he has been in Australia and his positive contribution to the community was outweighed by the applicant’s sexual offending against a child in his care. The Minister found that the applicant should not be given the chance to prove that he will not reoffend given the seriousness of his offending and the ramifications of further similar offending. The Minister did though accept that the likelihood of reoffending was “very low”.

87    Further and in any event, the applicant’s contention in 2018 purported to be on how the policy in the former Direction 65 should be applied, and was not in terms a representation that the Minister should depart from existing policy. I would infer that the applicant’s representatives thought that they were at the time making a submission in conformity with the then Direction 65.

88    Finally, I agree with counsel for the Minister, Mr Graeme Hill SC, that the Minister chose to apply a meaning of “community expectations”, supported by FYBR, which promotes consistent decision-making in s 501CA cases. He was not fettering his discretion.

89    This strand must be rejected.

Strand 1(e)(v)

90    The applicant says that insofar as the Minister purported to apply clause 8.4 of Direction 90 as a policy, he misconstrued it because the community expectations expressed therein do not speak to the outcome of any case (as compared to normative expectations about conduct), but the Minister reasoned on the basis that the “community expectations” do speak to the outcome in this case (see at [105]).

91    But in my view, to say that community expectations do not speak to the outcome in a particular case only means that the expectations are general in nature, and do not dictate the final decision.

92    The community expectations consideration may favour a final outcome, subject to a final balancing of the applicable considerations. In the present context, Direction 90 sets out community expectations as one of the primary considerations, to be balanced against other considerations. And the point of setting out these considerations is to provide guidance towards the final outcome.

93    Unremarkably, the Minister’s reasons (at [105]) express a conclusion that the community expectations consideration favours non-revocation.

94    This strand also fails.

Strand 1(e)(vi)

95    The applicant contends that the Minister did not give active intellectual consideration to the weight to be given to community expectations, especially in light of the applicant’s representations and his specific circumstances.

96    Now of course the Minister does not commit jurisdictional error merely because the Court disagrees with the weight that the Minister has given to community expectations.

97    Further, FYBR establishes that the community expectations consideration does not incorporate all the countervailing factors from the person’s specific circumstances. Instead, these individual factors are brought to account when deciding what relative weight to give community expectations.

98    But the Minister, having found that “the broader Australian community’s general expectations about non-citizens, as articulated in the Direction, apply in this case” (at [68]), then and without any explanation and before anything else (see [69] et seq) immediately states that he “attributed this consideration significant weight against revocation of the cancellation of Mr Kelly’s visa”.

99    Consistently and as the applicant points out, in the “Conclusion” section, at [105], having found that “non-citizens who have engaged in sexual assault or other sexually abusive behaviour raise character concerns so serious that the Australian community would expect they should not continue to hold a visa”, the Minister immediately and without any explanation reiterated that he “give[s] this primary consideration significant weight as well towards non-revocation of the visa cancellation”.

100    In my view, a fair reading of the Minister’s reasons is that he attributed “significant weight” to his concept of the “expectations of the Australian community” without having regard to the specific circumstances of the applicant’s case, including the applicant’s very low risk of reoffending and the very serious impact of an adverse decision on him noting his medical diagnosis and inability to travel.

101    At the least the Minister’s failure here to consider the specific circumstances of the applicant’s case in assessing what weight to give to the “expectations of the Australian community” reflects a failure to give active intellectual consideration to a very relevant issue that impacted on the applicant’s fate.

102    As Charlesworth J observed in FYBR (at [77]):

…the degrees of tolerance referred to in cl 6.3(5) and cl 6.3(7) are matters that fall for consideration by the decision-maker in the ultimate exercise of his or her discretion. …They are factors that may be taken into account in determining whether it is appropriate to give more or less weight to a deemed community expectation of visa refusal that might otherwise arise simply because of the nature of the non-citizen’s character concerns or offences.

103    And notably, clause 6.3(5) of Direction 65 has equivalence with cl 5.2(4) of Direction 90. Clause 5.2(4) provides:

Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other noncitizens 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 by noncitizens who have lived in the Australian community for most of their life, or from a very young age.

104    In this case the Minister, perhaps as the applicant submitted mindful of clause 5.2(4), stated (at [96]):

Mr Kelly has resided in Australia for some 50 years, having arrived as an infant aged one year. I acknowledge Mr Kelly has lived in Australia for nearly all of his life, from a very young age, has been contributing positively to the community in that time, and that the Australian community may therefore afford a higher level of tolerance of criminal conduct in relation to him. However I find this tolerance would be outweighed by Mr Kelly’s sexual offending against a child in his care.

105    But as the applicant correctly says, two things are notable about this paragraph.

106    First, and consistently with the applicant’s submissions to me at the hearing to the effect that “Australia” in clause 5.2(4) should be understood as the “Australian community”, that is how the Minister himself interpreted that clause.

107    Second, the Minister’s finding that the Australian community may afford a higher level of tolerance of the applicant’s criminal conduct based on certain circumstances particular to him, that is, how long he has lived in and contributed to the Australian community, is in tension with the Minister’s finding that the Australian community has “expectations” as to the outcome of the decision-making process (non-revocation) based on the seriousness of the applicant’s conduct alone that apply irrespective of the applicant’s specific circumstances. Clearly, the length of time that the applicant has lived in and contributed to the Australian community are specific circumstances peculiar to him. Indeed, the Minister’s willingness to consider certain specific circumstances particular to the applicant in assessing the Australian community’s tolerance of the applicant’s criminal conduct, that is, the length of time that the applicant has lived in and contributed to the Australian community, contrasts with the Minister’s apparent failure to consider those or any other specific circumstances particular to the applicant in assessing what weight to give the deemed expectations of the Australian community.

108    Now the Minister disposed of the applicant’s representations about the expectations of the Australian community by stating that the Direction is not about what the community may expect in relation to the particular non-citizen having regard to their specific circumstances. But even if the Minister did not err in this respect, it was incumbent upon him to actively intellectually consider what weight to give to that deemed expectation in light of the evidence of the specific circumstances particular to the applicant.

109    I agree with Mr Wood SC that a reasonable Minister responding to the applicant’s representations urging the Minister to have regard to all the evidence in assessing the “expectations of the Australian community” would not respond simply by saying that the Direction “is not about what the community may expect in relation to the particular non-citizen having regard to their specific circumstances”. Rather, a reasonable Minister would have regard to the applicant’s circumstances at least in assessing what weight to give the deemed expectations. It seems to me that that did not occur.

110    Now the Minister made various submissions against this strand of the applicant’s case. But most concerned the boundaries and content of the community expectations. But I am here concerned with the question of the weight to be given to such expectations.

111    I do not think that the Minister actively intellectually engaged with the question of weight. In my view he dealt with that question at most rather peremptorily.

112    Now of course the Minister has a broad decisional freedom as to the relative weight to be given to these different considerations. But in my view the Minister did not give active intellectual consideration to the applicant’s representation about his specific circumstances in the context of the weight to be given to the community expectations.

113    In summary I accept this strand of the applicant’s case.

Conclusion

114    In summary, one aspect of the applicant’s challenge has succeeded. And the Minister has not argued against the materiality of such an error. Accordingly, the Minister’s decision must be set aside.

115    But given that the applicant did not succeed on most of his arguments and only succeeded on one aspect raised at the last minute, I propose to make no order as to costs.

Associate:

Dated:    14 April 2022