Federal Court of Australia

Demir v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 870

ORDERS

THE COURT ORDERS THAT:

1.    The amended originating application be dismissed.

2.    The applicant pay the first respondent’s costs as agreed or assessed.

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

REASONS FOR JUDGMENT

KENNETT J

background

1    The applicant’s five year resident return visa was cancelled by a delegate of the first respondent (the Minister), pursuant to s 501(3A) of the Migration Act 1958 (Cth) (the Act), on 19 January 2022. Section 501(3A) requires a visa to be cancelled if the holder is serving a term of imprisonment and fails the character test (set out in s 501(6)) on specified grounds.

2    When a visa is cancelled under s 501(3A), the Minister is required by s 501CA(3) of the Act to notify the former holder in writing and invite them to make “representations … about revocation of the original decision”. The Minister is empowered by s 501CA(4) to revoke the decision to cancel the visa if the person makes such representations, and:

(b)    the Minister is satisfied:

(i)    that the person passes the character test (as defined by section 501); or

(ii)    that there is another reason why the original decision should be revoked.

3    The applicant made representations seeking revocation of the cancellation of his visa. On 15 November 2022 a delegate of the Minister decided not to exercise the power of revocation. The applicant applied for review of that decision by the second respondent, the Administrative Appeals Tribunal (the Tribunal). The decision under review in this proceeding is the decision made by the Tribunal, dated 30 January 2023, to affirm the decision of the delegate.

4    It was not in question that the applicant did not pass the character test. The decision of the Tribunal therefore turned on whether it was satisfied that there was “another reason why” the decision to cancel the visa should be revoked.

5    In considering that issue the Tribunal was required by s 499(2A) of the Act to comply with relevant parts of Direction No 90: Visa Refusal and Cancellation under s 501 and Revocation of Mandatory Cancellation of a Visa under s 501CA (the Direction), which had been issued by the Minister under s 499(1). The Direction applied to decisions concerning whether to refuse or cancel a visa on character grounds under ss 501(1) or (2) of the Act and decisions under s 501CA(4).

6    Section 6 of the Direction provided that, in “exercising the discretion” (which can be taken to include making the assessment required by s 501CA(4)(b)(ii)), the decision-maker “must take into account the considerations identified in sections 8 and 9, where relevant to the decision”. Section 8 set out four “primary considerations”, as follows:

(1)    protection of the Australian community from criminal or other serious conduct;

(2)    whether the conduct engaged in constituted family violence;

(3)    the best interests of minor children in Australia;

(4)    expectations of the Australian community.

7    Section 9 of the Direction provided that “other considerations must also be taken into account, where relevant”. The other conditions “include (but are not limited to)”:

a)    international non-refoulement obligations;

b)    extent of impediments if removed;

c)    impacts on victims;

d)    links to the Australian community, including:

i)    strength, nature and duration of ties to Australia;

ii)    impact on Australian business interests.

8    Section 7 of the Direction provided that “primary considerations should generally be given greater weight than the other considerations”.

9    Each of the considerations listed above was the subject of some elaboration in the Direction. It is sufficient for present purposes to note the following points.

(a)    The “protection of the Australian community” called for analysis of the seriousness of the visa holder’s conduct, the level of risk of that conduct being repeated and the harm that would be inflicted if that were to occur.

(b)    Consideration of the “expectations of the Australian community” did not call for the decision-maker to attempt to find out what the “community” expected. Rather, para 8.4 of the Direction stated that the community “expects” certain things. Paragraph 8.4(4) provided:

This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case.

consideration of family violence

10    In the present case, the offending that led to the applicant’s visa being cancelled included (but was not limited to) a significant number of family violence offences. The issue raised by the single ground of review concerns the way the Tribunal understood the relevance of those offences to several of the “primary considerations” referred to in the Direction.

11    Whether the applicant had engaged in family violence was, of course, specified as a “primary consideration” by the Direction. As to that, para 8.2(1) of the Direction said:

The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering and remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen (see paragraph (3) below).

12    The Direction referred to family violence in other contexts as well.

(a)    In assessing the nature and seriousness of conduct as an aspect of the protection of the Australian community, para 8.1.1(1)(a) referred to “acts of family violence” as an example of conduct that is “viewed very seriously”.

(b)    A factor to be considered (among others) in assessing the best interests of a child under para 8.3(4)(g) was whether there is evidence that the child has been or is at risk of being exposed to “family violence perpetrated by the non-citizen”.

(c)    An aspect of the “expectations of the Australian community”, under para 8.4(2), was that the Government:

can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:

(a)    acts of family violence; or

…

13    Reflecting these aspects of the Direction, the Tribunal referred to the applicant’s engagement in family violence at several points in its reasons.

(a)    In assessing the seriousness of the applicant’s offending (at [35]–[38]), the Tribunal noted that there were multiple convictions involving domestic violence and breaches of apprehended violence orders (although it did not say expressly that these offences were serious because they involved family violence).

(b)    In considering the risk to the Australian community, having identified a “high” risk of the applicant reoffending, the Tribunal observed at [61] that “the harm to the community, should the Applicant reoffend, could be very serious, given the very serious nature of offending (involving family violence)”.

(c)    In considering the expectations of the Australian community, the Tribunal referred to the part of para 8.4(2) set out above. It then said, at [65]:

The Applicant had committed multiple family violence offences over many years. He was also convicted of a drug offence. The Tribunal has formed the view that, given the seriousness and repeated nature of the Applicant’s conduct over a lengthy periods of time, the community expectations would weigh heavily against revocation.

(c)    The Tribunal then considered whether the applicant had engaged in family violence as a consideration in its own right. It concluded, at [70]:

The Tribunal considers that the Applicant did engage in family violence offences. This consideration weighs heavily against the revocation.

14    It is useful also to set out the concluding part of the Tribunal’s reasons, in which it brought together the considerations that it had found to be relevant (at [99]–[102]).

The Applicant concedes that his past offending was very serious and the Tribunal has formed the view that the Applicant did engage in serious offending, given the type of the offending and its repeated nature over a period of time. The Tribunal has formed the view that the protection of the Australian community, the expectations of the Australian community and the fact that offending [sic] involved family violence, all weigh against the revocation. That is, three of the primary considerations weigh against the revocation while the fourth one (best interests of the children) is neutral.

With respect to the other considerations, the Tribunal accepts that the Applicant has formed significant family, social, business and other ties to this country. The Tribunal acknowledges that the Applicant’s wife and stepchildren remain in Australia. He has significant business links and intends to resume the operations of his business. These relationships will be affected by the Applicant’s departure from Australia and for the reasons set out above, the Tribunal has found that there would be significant detriment to the Applicant and others if his visa remains cancelled. The Tribunal finds that the detriment if removed, and the links to the Australian community are factors that weigh strongly in favour of the revocation.

The Applicant also claims that the impact on victims (namely his present wife) is a factor that weighs in favour of the revocation, noting Ms Demir’s evidence of her reliance on the Applicant and the hardship she would experience if he is to leave Australia. The Tribunal is prepared to accept that evidence and gives it considerable weight in favour of the revocation.

Overall, the Tribunal acknowledges that the other considerations are such that they favour the revocation. However, in the circumstances of this case, the Tribunal has decided to give greater weight to the three primary considerations of protection of the Australian community, the expectations of the Australian community and the fact that the repeated offending involved family violence. The Tribunal has determined that these weigh against the revocation. The Tribunal has decided that, in all the circumstances of this case, these primary considerations should be given greatest weight.

15    It will be seen that the Tribunal regarded several factors as weighing “strongly” or having “considerable weight” in favour of revoking the cancellation. However, it “decided to give greater weight” to the three “primary considerations” of protection of the Australian community, the expectations of the community and the fact that the applicant’s offending included family violence.

did the tribunal err?

16    The amended originating application alleges, relevantly, that:

(a)    it would be “legally unreasonable or otherwise a jurisdictional error” for the Tribunal to weigh more than one primary consideration so as to “double count” family violence, “in other words, to weigh essentially the same matter against the Applicant repetitiously”; and

(b)    the Tribunal made such an error by giving both of paras 8.1 and 8.2 of the Direction heavy weight against revocation, “without regard to how to adjust that weight so as to avoid double counting”.

17    The applicant does not allege that the Direction exceeds the power in s 499 by authorising or requiring “double counting”. He submits that the Direction does not and could not take away from the Tribunal the function of deciding what weight should be given to the various considerations and reaching a relevant state of satisfaction for the purposes of s 501CA(4)(b)(ii) on that basis. He says that it is incumbent on the Tribunal, in weighing the primary and other considerations set out in the Direction, to “adjust” their weight so as to avoid “double counting”. To fail to do so is said to be legally unreasonable, in that the decision would be infected by “irrational” reasoning.

18    This submission relies on an implicit requirement in s 501CA(4) that the decision-maker’s state of satisfaction as to whether there exists “another reason” to revoke the cancellation of a visa must be reached by a rational thought process. The alleged error was described in submissions as the “irrational attribution of weight” to a mandatory consideration. Reference was made in oral argument to Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 41 (Peko-Wallsend), where Mason J observed that a decision in which great weight was given to a consideration of no great importance might be set aside as “manifestly unreasonable”. However, in support of this suggestion his Honour referred to Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 (Wednesbury) and to Australian cases in the same vein such as Parramatta City Council v Pestell (1972) 128 CLR 305. These were cases where a decision or state of satisfaction was held to be so unreasonable that it could not be reached by a reasonable decision-maker. In the more recent terminology of legal unreasonableness, these decisions are “outcome focused”: cf, eg, Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 at [6] (Allsop CJ, Griffiths and Wigney JJ agreeing).

19    I did not understand the applicant to submit that the Tribunal’s decision was legally unreasonable by reference to its outcome. Rather, he submits that the Tribunal engaged in an impermissible form of reasoning by taking into account the fact that he had engaged in family violence, both as a consideration in its own right and as a circumstance relevant to the protection of the Australian community, without adjusting its attribution of weight to avoid “double counting”.

20    Formulated in this way, the alleged error is one that occurred in the application of a statutory criterion to the facts as found by the Tribunal. It therefore does not involve the complexities that attend judicial review for faulty fact-finding (as to which see, eg, Djokovic Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3; 289 FCR 21 at [30]–[35] (Allsop CJ, Besanko and O’Callaghan JJ)). However, it faces the difficulty that, generally at least and in the absence of any contrary statutory indication, the weight to be given to various relevant considerations is a matter for the decision-maker (Peko-Wallsend at 41). Description of the weight allocated to a consideration as “irrational”, without reference to any feature of the statute with which it is inconsistent, may be merely an emphatic way of expressing disagreement (see Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; 197 CLR 611 at [40] (Gleeson CJ and McHugh J)).

21    The metaphor of “weighing” relevant considerations should not be taken too literally. The exercise is not mathematical and cannot depend on the simple aggregation of factors on each side of a ledger. The conclusion as to whether there is “another reason” for the purposes of s 501CA(4)(b)(ii) necessarily involves persuasion of a human decision-maker, whose thought processes cannot be reflected in lines of code, as to what is the right result in the circumstances. That persuasion flows from the decision-maker’s personal understanding as to the significance of each of the factors they are required or permitted to take into account, in the light of all the material they have considered. So much is consistent with the decision-maker’s duty to “call his own attention to the matters which he is bound to consider” (Peko-Wallsend at 39 (Mason J), quoting Wednesbury at 229 (Lord Greene MR)) and to give “proper, genuine and realistic consideration to the merits of the case” (Khan v Minister for Immigration and Ethnic Affairs (unreported, Federal Court of Australia, Gummow J, 11 December 1987; noted (1987) 14 ALD 291, 292). Correspondingly, the statutory specification of mandatory considerations requires those considerations to be taken into account, but not necessarily to be given any particular degree of weight: Telstra Corporation Ltd v Australian Competition and Consumer Commission [2008] FCA 1758; 176 FCR 153 at [110] (Rares J) (varied on appeal (Australian Competition and Consumer Commission v Telstra Corporation Ltd [2009] FCAFC 68; 176 FCR 203), but not on this point).

22    In the “real world” (to invoke the frequently cited statement by Hill J in Enichem ANIC Srl v Anti-Dumping Authority (1992) 39 FCR 458, 469), the ultimate decision as to which relevant factors are more important (and thus which side of the line a case falls) is likely to be instinctive, and correspondingly unlikely to be explained in granular detail. The thought process required of (and undertaken every day by) administrative decision-makers is therefore not something that can sensibly be dissected and identified as involving the impermissible attribution of excessive weight to a relevant factor. Attempting to do so takes the metaphor of “weighing” further than it can realistically go. If all of the mandatory considerations (and no irrelevant considerations) have been brought to bear, the ultimate synthesis — absent some statutory requirement to the contrary — is one for the decision-maker; and (aside from cases where legal unreasonableness is manifest in the outcome) the label “irrational” does not have any legal content when applied to that synthesis.

23    What I have said above is consistent with the treatment in this Court of the Direction and its predecessors, where overlap between the various “primary considerations” has been observed. Dowsett J in Aksu v Minister for Immigration and Multicultural Affairs [2001] FCA 514; 65 ALD 667 at [21] (Aksu) noted that the protection of the Australian community and the expectations of the Australian community were each “really a function of the seriousness of the person’s history of misconduct”, and described the phenomenon as “generally fair and reasonable, if repetitive”. Perram J in Bale v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 646 (Bale) at [26] observed that, where a matter is relevant to two or more mandatory considerations, “a decision-maker is not usually required to take the matter into account repetitiously”. In Bale the asserted error was a failure to take relevant matters into account. That case was therefore distinguished by Halley J in XSLJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1138 at [122]–[123] (XSLJ), where his Honour held that the matters to be taken into account in assessing mandatory and other considerations “may well overlap”, and it would be neither desirable nor permissible to exclude consideration of relevant material on the basis that it was more directly relevant to another consideration. (The judgment of Halley J in XSLJ was overturned on appeal, but not on this point.)

24    It was not argued in the present case that the Tribunal had treated itself as bound by the Direction to give additional weight to any particular factor, so as to come to a decision that did not reflect the presiding member’s true view as to whether, taking into account the considerations referred to in the Direction, there was “another reason why” the revocation decision should be revoked. The written reasons of the Tribunal do not suggest that that occurred. Had the Tribunal treated itself as constrained by the Direction to give particular weight to particular considerations, different questions would arise. In this connection, the Full Court in Jagroop v Minister for Immigration and Border Protection [2016] FCAFC 48; 241 FCR 461 at [55] (Kenny and Mortimer JJ, Dowsett J agreeing) (Jagroop) observed that a predecessor of the Direction was “expressly intended to affect the weight decision-makers generally give to the factors with which it deals”, before going on to say that “the weighing process is in substance left, as it must be, to the individual decision-maker exercising the power”. See also Kumar v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 94 at [42] (Logan, Sarah C Derrington and Anderson JJ). (An even earlier predecessor, Direction No 17: Visa refusal and cancellation under section 501, purported to prescribe that “no individual considerations can be more important than a primary consideration” (at para 2.2). The apparent requirement to give greater weight to primary considerations, regardless of the circumstances, put this Direction in a different category: see Howells v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 327; 139 FCR 580 at [107]–[128]; Aksu at [21]–[24], [34]).

25    The applicant relies on the reference by the Tribunal to “three primary considerations” in its reasons at [102] (set out above at [14]) to submit that the Tribunal was diverted from the proper performance of its task by the number of considerations that weighed against revocation, having failed to appreciate that one of these considerations (family violence) overlapped significantly with the others. That reading takes insufficient account of the fact that the Tribunal is a human, rather than an algorithmic, decision-maker. The “weight” that the Tribunal gave to the three primary considerations was described (at [102]) as something that it had “decided” in the “the circumstances of this case”. This is properly understood as reflecting the Tribunal’s ultimate conclusion as to what was the correct decision in the light of the matters it was required to consider; not a mechanistic weighing of three considerations pointing in one direction against two pointing in the other. The conclusion is not rendered irrational, in any presently relevant sense, by reason of the relevant considerations having been identified and enumerated by reference to the Direction. If the Tribunal was prompted to give more attention than it would otherwise have done to the fact that the applicant’s offending involved family violence, that simply reflects the Direction having had an influence of the kind envisaged in Jagroop.

26    To the extent that the Tribunal was required to “adjust” the weight accorded to the various considerations identified in the Direction so as to avoid “double counting”, it should be understood to have done that in the course of arriving at what it considered to be the correct conclusion on the question before it. Such “adjustment” is inherent in the process of reasoning from the identification of relevant considerations to the conclusion that the Tribunal considers to be the correct one. The contrary view involves the conclusion that the Tribunal was giving the answer produced by the number of relevant considerations on each side of the ledger, rather than setting out its actual state of satisfaction on the issue identified in s 501CA(4)(b)(ii). An error of that fundamental kind should not lightly be inferred, and it is inconsistent with the Tribunal’s reference to having “decided” what weight it would give to the “three primary considerations”.

disposition

27    The amended originating application must be dismissed. Both parties addressed the issue of costs in their written submissions and neither advanced any reason why costs should not follow the event.

Associate:

Dated:    31 July 2023