Federal Court of Australia

Johnson v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1558

ORDERS

THE COURT ORDERS THAT:

1.    The application is dismissed.

2.    The applicant is to pay the first respondent’s costs, as agreed or taxed.

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

REASONS FOR JUDGMENT

MARKOVIC J:

1    This is an application for judicial review of a decision of the second respondent (Tribunal). The Tribunal affirmed a decision of a delegate of the first respondent (Minister) to refuse to grant a Partner (Temporary) (Class UF) visa and Partner (Residence) (Class BC) visa (partner visa) under s 501(1) of the Migration Act 1958 (Cth) to the applicant’s husband, who I will refer to as the visa applicant.

2    The applicant raises one issue in her application for judicial review, namely whether the Tribunal fell into jurisdictional error in its treatment of the primary consideration of the expectations of the Australian community. The applicant alleges that the Tribunal failed to consider whether, in the circumstances of this case, the expectations of the Australian community should carry less weight.

3    For the reasons which follow I would dismiss the application with costs.

Background

4    The visa applicant is a citizen of Ghana. He first arrived in Australia on 31 January 2010 on a South African passport in a different name. The visa applicant destroyed the South African passport during the flight to Australia by flushing it down the aircraft’s toilet.

5    Upon arriving in Australia, on a transit stop in Melbourne, the visa applicant approached immigration officials and informed them that he wished to make an application for a protection visa. The visa applicant was refused immigration clearance and was taken into immigration detention.

6    On 15 February 2010 the visa applicant lodged an application for a Protection (Class XA) visa on the basis that he feared returning to Ghana because he identified as a homosexual. On 23 August 2010 that application was refused by a delegate of the Minister.

7    On 15 December 2010 the delegate’s decision was affirmed by the then Refugee Review Tribunal. On 21 December 2010 the visa applicant sought judicial review of that decision but on 1 March 2011 he discontinued that application.

8    On 30 January 2011 the visa applicant escaped from immigration detention whilst on an excursion.

9    On 17 July 2014 the visa applicant was located in New South Wales, detained and once again taken into immigration detention.

10    On 1 August 2014 the visa applicant lodged an application for a Partner (Temporary) (Class UK) visa sponsored by the applicant (2014 partner visa application). On 27 August 2014 the 2014 partner visa application was refused by a delegate of the Minister. On 17 October 2014 the delegate’s decision was affirmed by the then Migration Review Tribunal.

11    On 12 December 2014 the visa applicant voluntarily departed Australia.

12    On 2 March 2018 the visa applicant applied for the partner visa sponsored by the applicant.

13    On 23 July 2021 the Department of Home Affairs (as the Minister’s Department was then known) sent the visa applicant a “Notice of intention to consider refusal of your visa application under section 501(1) of the [Act]” on the basis that he did not pass the character test as set out in s 501(6)(c)(ii) of the Act.

14    On 15 September 2021 the visa applicant responded to the Notice.

15    On 30 December 2021 a delegate of the Minister refused to grant a partner visa to the visa applicant on the basis that he was not satisfied that the visa applicant passed the character test.

16    On 28 January 2022 the applicant, on behalf of the visa applicant, applied to the Tribunal for review of that decision. On 23 February 2023 the Tribunal affirmed the decision under review.

Statutory framework

17    Before setting out the Tribunal’s reasons it is convenient to set out the relevant statutory framework.

18    Section 501(1) of the Act provides that the Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that he or she passes the character test.

19    The character test is defined in s 501(6) of the Act. That subsection relevantly provides that a person does not pass the character test if, among other things, having regard to the person’s past and present general conduct, the person is not of good character: s 501(6)(c)(ii) of the Act.

20    Section 499(1) of the Act provides that the Minister may give written directions to a person or body having functions or powers under the Act about the performance of those functions or the exercise of those powers. Section 499(2A) of the Act provides that a person or body must comply with a direction given under subs (1).

21    At the time of the Tribunal’s decision “Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA” was the applicable direction made under s 499 of the Act with which the Tribunal was required to comply.

22    Paragraph 5 in Pt 1 of Direction 90 is titled “Preamble”. It sets out at paragraph 5.1 “Objectives” including:

(1)    The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens. Relevantly, a non-citizen who does not pass the character test (see Annex A for explanation) is liable for refusal of a visa or cancellation of their visa.

(2)    Specifically, under subsection 501(1) of the Act, non-citizens may be refused a visa if they do not satisfy the decision-maker that they pass the character test. ... Where the discretion to refuse to grant or to cancel a visa is enlivened, the decision-maker must consider the specific circumstances of the case in deciding whether to exercise that discretion.

…

(4)    The purpose of this Direction is to guide decision-makers in performing functions or exercising powers under section 501 and 501CA of the Act. Under section 499(2A) of the Act, such decision-makers must comply with a direction made under section 499.

23    Paragraph 5.2 of Direction 90 sets out the principles which “provide the framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen’s visa under section 501”. They are:

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

(2)    Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

(3)    The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.

(4)    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.

(5)    Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.

24    Part 2 of Direction 90 is titled “Exercising the discretion”. Paragraph 6, which is also titled “Exercising the discretion”, provides:

Informed by the principles in paragraph 5.2, a decision-maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.

25    Paragraphs 8 and 9 of Direction 90 respectively set out the “[p]rimary considerations” and the “[o]ther considerations”.

26    Paragraph 8.4 of Direction 90 sets out the fourth primary consideration, “Expectations of the Australian Community”, with which the applicant’s judicial review application is concerned. It provides:

(1)    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 to not allow such a non-citizen to enter or remain in Australia.

(2)    In addition, visa cancellation or refusal, or 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 be granted or continue to hold a visa. In particular, the Australian community expects that the Australian 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

(b)    causing a person to enter into, or being party to (other than being a victim of), a forced marriage;

(c)    commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;

(d)    commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or

(e)    involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or

(f)    worker exploitation.

(3)    The above expectations of the Australian community apply regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.

(4)    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.

The Tribunal’s decision

27    The Tribunal identified the issues before it to be: first, whether the visa applicant passed the character test as defined in s 501(6) of the Act; and secondly, if he did not, whether the discretion in s 501(1) of the Act should be exercised: Tribunal’s reasons at [30]. The Tribunal set out the evidence relied on by the parties before turning to consider those issues.

28    As to the first issue, the Tribunal was not satisfied that visa applicant passed the character test: reasons at [155]. This aspect of the Tribunal’s reasons is not challenged.

29    The Tribunal turned to consider the second issue. In doing so the Tribunal first referred to Direction 90 which the Tribunal noted it was bound to apply by operation of s 499(2A) of the Act. The Tribunal also noted that Direction 90 contains both mandatory and what it described as “aspirational” considerations “guiding the exercise of the statutory power under the Act”: reasons at [157]-[160].

30    At [161]-[167] of its reasons the Tribunal summarised the requirements of Direction 90. In doing so it:

(1)    set out the principles included in paragraph 5.2 of Direction 90 which, it noted, “inform the decision-making process”;

(2)    observed that paragraph 6 provides that “informed by the above principles, a decision-maker must consider [p]aragraphs 8 and 9, where relevant”. The reference to the “above principles” is a reference to the principles in paragraph 5.2 of Direction 90;

(3)    summarised the requirements of paragraph 7 of Direction 90 concerning, among other things, the weight that may be given to “primary” as opposed to “other” considerations;

(4)    set out paragraphs 8 and 9 of Direction 90 which respectively identify the primary considerations and a non-exhaustive list of other considerations; and

(5)    stated (at [167]) that:

This does not preclude the Tribunal giving the other considerations of [p]aragraph 9 equivalent, or even greater weight than a primary consideration, which turns on the specific circumstances of each case. The weighing process is determined by decision-makers exercising the relevant power under the Act.

(Footnote omitted.)

31    The Tribunal then undertook the task of weighing the evidence in accordance with Direction 90 to “address” the primary considerations and the other considerations.

32    The Tribunal first considered the primary consideration “[p]rotection of the Australian community from criminal or other serious conduct”. The Tribunal considered the parties’ submissions about paragraph 8.1.1 of Direction 90, which concerns “[t]he nature and seriousness of the [a]pplicant’s conduct”, noting, among other things, that paragraphs 8.1.1(1)(a), (b)(i), (b)(ii) and (c) were not relevant because, on the evidence, the visa applicant had not committed any offences of the types described in those paragraphs.

33    At [193] of its reasons the Tribunal concluded in relation to the nature and seriousness of the applicant’s conduct that:

With reference to the relevant and applicable paragraphs referred to above, the Tribunal concludes that the totality of the [v]isa [a]pplicant’s unlawful or offending conduct in Australia can be characterised as serious.

34    The Tribunal next considered paragraph 8.1.2 of Direction 90, “Risk to the Australian community should the non-citizen commit further offences to engage in other serious conduct”, and concluded at [216] of its reasons that the visa applicant’s risk profile poses a risk and that consequently the risk he poses to the Australian community should he commit further offences or engage in other serious conduct “is small but material” in the circumstances of the matter where he is seeking a visa to enter Australia.

35    The Tribunal concluded that the protection of the Australian community weighed in favour of affirming the delegate’s decision: reasons at [217].

36    The Tribunal found that the primary considerations of family violence and the best interests of minor children were not relevant to the visa applicant: reasons at [221] and [227]. It then considered primary consideration 4, “[e]xpectations of the Australian community”.

37    In doing so the Tribunal set out the requirements of paragraphs 8.4(1), (2) and (4) and the “guidance provided by [p]rinciples 5.2(2), (3), (4) and (5) of [Direction 90]”, its understanding of how this primary consideration ought to be applied to the visa applicant’s circumstances by reference to the decision in FYBR v Minister for Home Affairs (2019) 272 FCR 454 and the parties’ submissions.

38    In relation to FYBR at [230]-[232] of its reasons the Tribunal said:

230.    Paragraph 8.4(4) of the Direction correlates with the reasoning of the Full Court of the Australian Federal Court (FCAFC) in FYBR v Minister for Home Affairs (2019) 272 FCR 454 (“FYBR”).

231.    Notwithstanding the different pathways in judicial reasoning, the plurality of the Court in FYBR held that “Expectations of the Australian community” is a deeming provision with normative principles, ascribing to the community an expectation aligning with that of the executive government.

232.    The reasoning in FYBR establishes that the ‘deemed community expectation’ will in most cases call for cancellation, but ‘the question of whether it is appropriate to act in accordance with the deemed community expectation is in all cases left for the decision-maker to determine’.

(Footnotes omitted.)

39    The Tribunal summarised the applicant’s submissions at [240] of its reasons as follows:

The Applicant contends that, while the Australian community’s expectations will generally weigh against an applicant as the expectations tend to be written in absolutes, where the non-citizen’s conduct is not “very serious”, and where the risk of re-offending is “very low”, this factor should not weigh heavily against the [v]isa [a]pplicant. Additionally, the evidence supports the view that the [v]isa [a]pplicant’s behaviour is such, when considered in its totality, shows he is a peaceful person who has never offended, and therefore poses no realistic risk to the Australian community.

(Footnote omitted.)

40    The Tribunal was satisfied that the visa applicant had breached the Australian community’s expectations “by his conduct and actions between January 2010 and July 2014” and that therefore “the Australian community, ‘as a norm’ expects the Australian Government not to allow him to enter Australia”: reasons at [242]-[243]. At [244] the Tribunal said:

While the [v]isa [a]pplicant may not have committed any of the offences stipulated in the paragraph 8.4(2)’s categories (a)-(f) (inclusive) the Tribunal has found that he failed the character test, that his other actions and conduct were serious and that he represents ‘a risk’ which the Tribunal would characterise as small but a material risk.

41    The Tribunal then considered whether there were any factors modifying the Australian community’s expectations, noting that question is informed by the principles in paragraphs 5.2(4) and (5) of Direction 90 which the Tribunal summarised at [246] of its reasons in the following way:

(a)    Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa;

(b)    the Australian community has a low tolerance of criminal or other serious conduct by non-citizens who have been participating in, and contributing to, the Australian community for only a short period of time;

(c)    Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life; and

(d)    the nature of a non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify a visa outcome that is not adverse to the non-citizen.

(Emphasis in original.)

42    At [248]-[251] of its reasons the Tribunal made the following findings:

248.    The [v]isa [a]pplicant does not currently hold a visa.

249.    In the period between January 2010 and July 2014 the [v]isa [a]pplicant’s actions and conduct were sufficiently serious for the Tribunal to find above that he failed the character test, enlivening sub-paragraphs (a) and (b) in terms of the Australian community’s low tolerance for such conduct.

250.    Addressing sub-paragraph (c), the [v]isa [a]pplicant has not lived here for a significant proportion of his life (some four and half years out of forty-three years).

251.    Addressing sub-paragraph (d), the [v]isa [a]pplicant’s conduct was serious and there is a risk that he will re-offend if admitted into Australia.

43    The Tribunal concluded that primary consideration 4, expectations of the Australian community, “weighs strongly and determinatively for affirming” the delegate’s decision: reasons at [252].

44    Next the Tribunal considered the “other considerations” finding that non-refoulement obligations, the extent of impediments if removed, the impact on victims and the visa applicant’s ties to the Australian community were not relevant: reasons at [256]-[267].

45    Finally, the Tribunal considered an “additional consideration”, namely the impact of a decision to refuse the visa on the applicant and her family, and acknowledged that a refusal to grant the visa will “have a significant and adverse impact on the [a]pplicant and, to lesser degrees, the [a]pplicant’s mother, sister and friends who have provided references”: reasons at [278]. The Tribunal concluded that the additional consideration weighed moderately in favour of setting aside the delegate’s decision.

46    The Tribunal summarised its findings in relation to each of the primary considerations, the other considerations and the additional consideration and concluded (at reasons [284]) that:

A comprehensive, holistic and integrated view of the primary considerations, the other considerations in [Direction 90], together with the additional consideration favours on balance affirming the delegate’s decision to refuse to grant the [v]isa [a]pplicant a visa.

The application

47    The applicant raises a single ground of review which concerns the Tribunal’s treatment of and findings in relation to expectations of the Australian community. By that ground she alleges that:

1.    The Second Respondent made a jurisdictional error in relation to the expectations of the Australian community.

Particulars

a.    The Tribunal referred at paragraph 232 of its decision to case law establishing that it was required by the Ministerial Direction to notice the deemed expectation of the Australian community but it was left to the Tribunal to weigh the effect of the deemed expectation in a given case: see also Law v Minister for Immigration [2020] FCA 1726 at [63];

b.    The Tribunal referred at paragraphs 240 and 241 of its decision to the submissions of the parties regarding the weight to be accorded the deemed expectation in the present case;

c.    The Tribunal observed at paragraph 243 of its decision that the deemed expectation was refusal of the visa;

d.    The Tribunal observed at paragraphs 245-251 of its decision that there were no factors prescribed by the Direction modifying the deemed expectation;

e.    The Tribunal found at paragraph 252 that the deemed expectation applied strongly and determinatively toward refusal of the visa;

f.    The Tribunal was required to give proper consideration to, in the sense of active intellectual engagement with, the statutory provisions and the parties' case, including the weight to be accorded the deemed expectation in the present case: see, eg, Minister for Immigration v RGKY [2022] FCAFC 177 at [12]-[16], [93];

g.    The Tribunal failed to do so. While it referred to the requirement that it ascertain weight, it simply looked to the absence of applicable provisions in the Direction modifying the deemed expectation and did not grapple with the question of whether, in the circumstances of the case as a whole, the deemed expectation should in its judgement carry less weight.

48    In short, the applicant contends that the Tribunal erred by failing to consider the submissions made by the parties about the weight to be afforded to the primary consideration of the expectations of the Australian community which is contained in paragraph 8.4 of Direction 90.

The applicant’s submissions

49    The applicant submits that there are older and broader notions of jurisdictional error entailing want of proper consideration which are untouched by more recent case law. They relevantly include the decision-maker failing to apply its mind to the statutory test, which is conceptually distinct from misunderstanding or misinterpreting the statutory provisions. The applicant contends that given the imperative effect of statutory law, and its delineation of the Tribunal’s function, there should not be room to submit that such jurisdictional error depends on representations by the visa applicant or does not extend to matters raised by the Tribunal’s own fact finding.

50    The applicant does not contend that the Tribunal was barred from proceeding in the absence of criminal convictions of the visa applicant. She concedes that the absence of criminal convictions was clearly not fatal for the purposes of the character test under s 501(6)(c) of the Act as it extends beyond “criminal conduct” to “general conduct”. The applicant submits that, in contrast, the deemed expectation refers to serious conduct in breach of the expectation that a non-citizen obeys Australian laws but accepts that it seems open to the Tribunal to find such conduct even without criminal convictions.

51    The applicant’s complaint is that the Tribunal has not properly considered one aspect of the statutory scheme, namely the requirement that it determine the weight to be given the deemed expectation as to obedience of laws in the circumstances of the case. She submits that the Tribunal has, permissibly even in the absence of criminal convictions, found the deemed expectation to apply in relation to the visa applicant but, in determining weight, has not to any significant degree considered the applicant’s case as to weight.

52    The applicant submits that the Tribunal has also not considered whether weight should be modified by the absence of criminal convictions. She contends that it was surely significant that the visa applicant had not faced criminal proceedings on account of his apparent breach of Australian laws and that this could have been another basis for moderating the weight to be accorded to the deemed expectation.

53    The applicant submits that above all the Tribunal has restricted its consideration of weight to paragraph 5.2 of Direction 90. She does not suggest that paragraph 5.2 is irrelevant to the attribution of weight to the deemed expectation but contends that the Tribunal has not given significant consideration to any other matters and thereby failed properly to engage with the statutory question, being the role to be played by the deemed expectation under Direction 90 in the context of its exercise of the statutory discretion in the present case.

54    The applicant submits that materiality is unlikely to be controversial, the standard of materiality is an undemanding one, the present case was one where few considerations under Direction 90 were applicable and the expectations of the Australian community was found by the Tribunal to weigh “strongly and determinatively” such that the error, if upheld, should be material to the result.

Consideration

55    The primary consideration, expectations of the Australian community, currently found at paragraph 8.4 of Direction 90, constitutes a normative statement of the Australian government’s views about expectations of the Australian community: see FYBR at [66] (Charlesworth J) and [95] (Stewart J).

56    At [74] of FYBR Charlesworth J relevantly said:

I have accepted the Minister’s submission that cl 11.3 is intended to give effect to the principle that the Minister may make a statement of the government’s views about the expectations of the Australian community, which statement may be acted on by the person conferred with the power in a particular case, as recognised in Uelese. In my view, the task of the decision-maker is to identify what is the “government’s view” about community expectations in the particular case, to “have due regard” to that view and to “generally” afford that view more weight than other non-primary considerations in accordance with cl 8(4). The phrase “may be appropriate” does not permit the decision-maker to equate the expectations of the Australian community (as expressed in cl 11.3) with the decision-maker’s own view as to the preferable outcome in the ultimate exercise of the discretion. To construe cl 11.3 in that way would be to ignore the fact that the clause is intended to express a consideration that is capable of being given more weight relative to “other considerations” in the exercise of the discretion, as cl 8(4) of the Direction generally requires. The primary judge was correct to say that importing into cl 11.3 all countervailing factors bearing on the ultimate decision would render cl 8(4) of the Direction unworkable.

57    To like effect at [103] of FYBR Stewart J said:

The community expectations, as I construe cl 11.3(1), 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?” It is also incorrect to construe the community expectation as expressing or requiring, in any particular case, either the grant or the refusal of the visa. In a particularly egregious case, the weight to be afforded the community expectations would be such that a refusal might be thought to be inevitable, and at the other end of the spectrum a refusal might be thought to be unlikely, but in neither case and in all the area in-between the community expectation will not express or require one or the other. That is a matter for the decision-maker.

58    Given the nature of the character test, the deemed expectation will usually weigh against an applicant. At [75] of FYBR Charlesworth J observed that cl 11.3 (which was the relevant clause of the applicable direction at the time, “Direction No. 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA” (Direction 65)) “should be understood as expressing a deemed community expectation that all persons who have committed serious criminal offences giving rise to character concerns should have their visa applications refused”. At [102] Stewart J expressed the view that “[i]t is difficult to conceive of a case where an unfavourable character assessment, whether on the basis of the commission of an offence or the risk that an offence will be committed, will be other than against the grant of a visa”. However, the appropriate weight to be afforded to the expectations of the Australian community, when balanced against other countervailing considerations, is a matter for the decision-maker: see FYBR at [76] (Charlesworth J), [103] (Stewart J).

59    As observed by a Full Court of this Court (Moshinsky, Stewart and Jackman JJ) at [34]-[35] of Minister for Immigration, Citizenship and Multicultural Affairs v HSRN (2023) 297 FCR 662, the majority in FYBR were agreed that “the expectations of the Australian community, as expressed by the Government in [Direction 65], do not determine the outcome of the decision because all relevant factors have to be weighed up and considered” and this approach is made “even clearer” by the wording in Direction 90.

60    As to the role of the principles in paragraph 5.2 of Direction 90, at [77] of FYBR Charlesworth J said the following about the equivalent paragraph in the then applicable Direction 65:

In my view, 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.

See too FYBR at [105] (Stewart J).

61    The applicant relies on SZSZQ v Minister for Immigration and Border Protection [2018] FCA 403 at [69] where Katzmann J said:

I am of the opinion that the Tribunal member did not turn his mind to the questions posed by the definitions in s 5(1). Strictly speaking, this is probably not a case of the Tribunal misunderstanding the law but of failing to apply itself to it. Either way, it was a jurisdictional error: R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228 at 242–243; Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission (2000) 203 CLR 194 at [31].

62    The applicant contends that here the Tribunal failed to apply itself to the law because in considering the weight to be attributed to expectations of the Australian community it felt constrained by the principles in paragraph 5.2 of Direction 90 and did not consider factors beyond those principles.

63    It was not in dispute that “a decision-maker must read, identify, understand and evaluate the representations” and “must have regard to what is said in the representations, bring their mind to bear upon the facts stated in them and the arguments or opinions put forward, and appreciate who is making them”: see Plaintiff M1/2021 v Minister for Home Affairs (2022) 400 ALR 417; [2022] HCA 17 at [24]. However, decision-makers are not required to consider claims that are not clearly articulated or which do not clearly arise on the materials before them: see Plaintiff M1 at [25].

64    Here the Tribunal summarised the applicant’s representations in relation to the primary consideration, expectations of the Australian community, at [240] of its reasons (see [39] above). Two issues were raised: first, that the visa applicant’s conduct was not very serious; and secondly, that the visa applicant’s risk of re-offending was very low. No complaint is made that the Tribunal’s summary is inaccurate or omits an aspect of those representations. In any event it is plain, when regard is had to the submissions in fact made about this primary consideration and the Tribunal’s summary at [240] of its reasons, that the Tribunal read, identified and understood the applicant’s submissions.

65    The Tribunal’s consideration of expectations of the Australian community is summarised at [37]-[43] above. It is apparent from the Tribunal’s reasons that it:

(1)    understood that it was a matter for it to determine the weight to be afforded to this primary consideration referring to FYBR at [75]-[76];

(2)    recognised that the Australian community “as a norm” would expect the Australian government not to permit the visa applicant to enter Australia; and

(3)    considered whether there were any factors “modifying” the Australian community’s expectations. Relevantly, it observed that its consideration in this regard “is informed by” the principles in paragraph 5.2(4) and (5) of Direction 90 which it relevantly summarised.

66    In undertaking the latter task it is clear, when the reasons are read as a whole, that the Tribunal was undertaking the task of assessing the weight to give to the expectations having regard to the visa applicant’s particular circumstances. The Tribunal considered: the visa applicant’s visa status (reasons at [247]-[248]); the seriousness of the visa applicant’s conduct, the first matter raised by the applicant in her submissions (reasons at [249]); the length of time in which the visa applicant had lived in the Australia (reasons at [250]); and risk of reoffending, the second matter raised by the applicant in her submissions (reasons at [251]). The Tribunal then reached its conclusion as to the weight to be attributed to this consideration. As the Minister submits, its approach was consistent with FYBR.

67    Contrary to the applicant’s submission, the Tribunal did not restrict its consideration of weight to the principles in paragraph 5.2 of the Direction 90. Nor did it fail to give consideration to any other matters. The Tribunal assessed weight “informed by” but not restricted to the principles in paragraph 5.2 of Direction 90. As is evident from a review of the reasons, the Tribunal also had regard to the submissions made by the applicant. There was a degree of overlap between the relevant principles and the representations.

68    The applicant seized on the Tribunal’s use of the word “enlivening” at [249] of its reasons (see [42] above) in support of her contention that the Tribunal approached its task as if it “were the fulfillment by the facts of a statutory provision” and fettered itself. I would not draw that conclusion simply from the Tribunal’s choice of language. A review of the Tribunal’s reasons as a whole reveals that it used the word “enlivened” or “enlivening” a number of times in undertaking its task e.g. see reasons [172]; nothing can be read into its use of those words. It is clear that the Tribunal understood its task and the manner in which it was required to approach the assessment of expectations of the Australian community and there was no misunderstanding on the part of the Tribunal.

69    Further, as the Minister submits, at [284] of the reasons the Tribunal undertook a final weighing exercise of the primary considerations, other considerations and the additional consideration identified by the Tribunal, the visa applicant’s ties to Australia and the impact visa refusal would have on his wife and Australian family and friends (see [46] above). That being so it is apparent that it had regard to the visa applicant’s personal circumstances vis à vis the expectations of the Australian community at two points in its decision and it did not restrict itself to the principles in paragraph 5.2 of Direction 90.

70    In my view the Tribunal did not in its assessment of the weight to be given to expectations of the Australian community confine itself, or fetter its approach by reference only, to the principles in paragraph 5.2. It follows that the Tribunal did not fail to apply itself to the applicable law and there was no error as alleged by the applicant.

Conclusion

71    The application should be dismissed. As she has been unsuccessful the applicant should pay the Minister’s costs, as agreed or taxed.

72    I will make orders accordingly.

Associate:

Dated:    11 December 2023