Federal Court of Australia

WVJB v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 320

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The applicant pay the first respondent’s costs of the application, to be assessed in default of agreement in accordance with the court’s Costs Practice Note (GPN-COSTS).

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

REASONS FOR JUDGMENT

SNADEN J:

1    The applicant is a citizen of New Zealand. He arrived in Australia in 1979 and, in 1994, was granted a temporary visa (hereafter, the “Visa”). On 24 November 2006, he was convicted of murder by the Supreme Court of South Australia and was sentenced to life in prison with a non-parole period of 16 years. On 20 January 2020—and in consequence of the applicant’s conviction—a delegate of the first respondent (the “Minister”) mandatorily cancelled the Visa pursuant to s 501(3A) of the Migration Act 1958 (Cth) (hereafter, the “Act”).

2    On 2 March 2022, the Department of Home Affairs invited the applicant to make—and, on 5 April 2022, he did make—representations as to why the cancellation of the Visa (the “Cancellation”) ought to be revoked. On 28 February 2023, a delegate of the Minister decided, pursuant to s 501CA(4) of the Act, not to revoke the Cancellation (the “Delegate’s Decision”).

3    On 5 March 2023, the applicant applied to the second respondent (the “Tribunal”) for a review of the Delegate’s Decision (the “Review Application”). On 22 May 2023, the Tribunal affirmed the Delegate’s Decision not to revoke the Cancellation (the “Tribunal’s Decision”).

4    By an originating application dated 26 June 2023, the applicant applies to this court pursuant to s 476A of the Act for judicial review of the Tribunal’s Decision. He seeks relief in the nature of certiorari and mandamus to remove into this court and quash the Tribunal’s Decision, and to remit the Review Application back to the Tribunal for determination according to law.

5    For the reasons that follow, the application shall be dismissed with costs.

The statutory framework

6    Section 501CA relevantly provides (and provided) that:

501CA Cancellation of visa—revocation of decision under subsection 501(3A) (person serving sentence of imprisonment)

(1)    This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.

(2)    For the purposes of this section, relevant information is information (other than non‑disclosable information) that the Minister considers:

(a)    would be the reason, or a part of the reason, for making the original decision; and

(b)    is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.

(3)    As soon as practicable after making the original decision, the Minister must:

(a)    give the person, in the way that the Minister considers appropriate in the circumstances:

(i)    a written notice that sets out the original decision; and

(ii)    particulars of the relevant information; and

(b)    invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.

(4)    The Minister may revoke the original decision if:

(a)    the person makes representations in accordance with the invitation; 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.

7    Presently, it is not controversial that the Visa was cancelled pursuant to s 501(3A) of the Act, nor that the applicant did not and does not pass the character test for the purposes of s 501CA(4)(b)(i). At issue before the Tribunal was whether there was “another reason” why the Cancellation ought to be revoked.

8    Section 499 of the Act empowers the Minister to issue directions related to the exercise of, amongst others, the power conferred by s 501CA(4). It relevantly provides (and provided) as follows, namely:

499 Minister may give directions

(1)    The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:

(a)    the performance of those functions; or

(b)    the exercise of those powers.

…

(2)    Subsection (1) does not empower the Minister to give directions that would be inconsistent with this Act or the regulations.

(2A)    A person or body must comply with a direction under subsection (1).

…

9    Insofar as is presently relevant, the Minister has exercised that power by publishing—or otherwise issuing (including to the Tribunal) a written direction in the form of—what is known as Direction No. 99, Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (hereafter, “Direction 99”).

10    Direction 99 relevantly provided as follows, namely:

…

5. Preamble

5.1 Objectives

…

(3)    …A non-citizen who has had their visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the decision-maker considering the request is not satisfied that the non-citizen passes the character test, the decision-maker must consider whether there is another reason to revoke the cancellation given the specific circumstances of the case.

(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.

5.2 Principles

The principles below 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, or whether to revoke a mandatory cancellation under section 501CA. The factors (to the extent relevant in the particular case) that must be considered in making a decision under section 501 or section 501CA of the Act are identified in Part 2.

…

(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.

…

(6)    Decision-makers must take into account the primary and other considerations [identified in Part 2 that are] relevant to the individual case. … In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph [8.5(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.

Part 2 Making a decision

6. Making a decision

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.

7. Taking the relevant considerations into account

(1)    In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.

(2)    Primary considerations should generally be given greater weight than the other considerations.

(3)    One or more primary considerations may outweigh other primary considerations.

8. Primary considerations

In making a decision under section 501(1), 501(2) or 501CA(4), the following are primary considerations:

…

(5)    expectations of the Australian community.

…

8.5 Expectations of the Australian Community

(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…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…

…

(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

11    Before the Tribunal, the applicant advanced various submissions as to why there was “another reason” why the Cancellation ought to be revoked. For reasons that will shortly become apparent, it is unnecessary to trace them all. Instead, it suffices to rehearse what was said in relation to the “Expectations of the Australian community”. On that score, the applicant submitted as follows, namely (references omitted, errors original):

The consideration of ‘expectations of the Australian community’ requires considerable care in determining the proper weight to be given.

Although the starting point is that a failure by non-citizens to obey the law will be held against them, the Tribunal must still carefully consider the facts and circumstances of the case to determine whether it is appropriate. This includes “the consequences that should befall a non-citizen” who have breached Australian law.

In the case of the applicant, there are a number of circumstances of relevance, including:

a)    The applicant’s prolonged presence in Australia and strong connections and ties to the Australian community;

b)    The applicant’s current mental health, including the onset of dementia;

c)    The applicant’s current age, having recently turned 60;

d)    The strict oversight of the parole board whilst residing in the community;

e)    The applicant’s lack of family or friends to support him in New Zealand;

f)    The reduced risk the applicant poses to the community in light of his efforts to rehabilitate (outlined above); and

g)    The steps taken by the applicant to manage his health, and obtain employment in the community.

It is also submitted that a recognition of a person’s ability to reform is an essential element of Australian values.

This consideration is likely to weigh against the Applicant, but it is submitted that the weight the Tribunal should place on this considerations is significantly tempered by the above factors.

12    The written reasons published in connection with the Tribunal’s Decision contain a section dedicated to that same issue (namely, the “Expectations of the Australian Community”). After setting out the relevant parts of Direction 99, the Tribunal made the following relevant observations (references omitted):

The Applicant’s conviction for murder in 2006 is criminal conduct of the most serious kind and the Tribunal accepts that the deemed expectation of the Australian community, as expressed in cl 8.5, is that because of it the Applicant should not be allowed to remain in Australia. In addition, the Applicant’s offending in the period from 1987 until his arrest on the murder charge in 2004, is widespread and demonstrates a persistent disregard for the law of Australia during that period. Taken together, the Applicant’s criminal conduct is serious conduct in breach of the expectations of the Australian community and is a consideration weighing against revoking the cancellation of the Applicant’s Visa.

As to the weight to be given to this consideration, considerable care is required in determining the proper weight and the Tribunal must carefully consider the facts and circumstances of the case to determine whether it is appropriate.

The starting point is the Direction. Clause 8.5(2) provides that 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. The offence of murder and in particular murder involving the premeditated and unprovoked attack on a defenceless victim is in the Tribunal’s view an offence of the nature to which cl 8.5(2) refers. In addition, cl 8.5(3) indicates that this primary consideration weighs heavily against revocation, even if the Tribunal concludes that the Applicant does not pose a “measurable risk of causing physical harm to the Australian community”.

…

13    The Tribunal then recited the circumstances that the applicant had nominated as being of relevance to an assessment of what “weight” ought to attach to its consideration of the expectations of the Australian community (see above, [11]). Its reasons continued:

The Tribunal accepts that many of the factors identified by the Applicant are matters which are relevant to a consideration of the final decision. However, they have been given careful consideration in assessing other considerations and will thereby attract weight in the final assessment of factors for and against revocation. In assessing the weight to give to community expectations, the Tribunal is required to consider the deemed expectation as expressed in cl 8.5 and not to make its own assessment of the expectations of the Australian community.

In this case, the Tribunal is satisfied that the expectation of the Australian community, a primary consideration, should be given substantial weight in favour of not revoking the cancellation of the Applicant’s Visa in the overall assessment of all of the considerations.

14    Ultimately, the Tribunal was:

…satisfied that the expectation of the Australian community is that the Applicant should not be allowed to continue to hold a visa and remain in Australia. This is a primary consideration which should be given substantial weight in favour of not revoking the cancellation of the Applicant’s Visa in the overall assessment of all of the considerations.

15    In combination with other findings, that was sufficient for the Tribunal to conclude that considerations tending against the revocation of the Cancellation outweighed those that inclined in favour of it. Consequently, it affirmed the Delegate’s Decision.

The present application

16    The present application proceeds upon two grounds, which it is convenient to replicate in full:

1.    The [Tribunal] failed to [perform] its statutory task or failed to act on a correct application of the law in that it purported to comply with Direction 99, in circumstances where that Direction was not operative nor binding because it was inconsistent with the [Act].

2.    The [Tribunal] misapplied or misdirected itself in relation to determining the Expectations of the Australian Community under cl 8.5 of Ministerial Direction Number 99.

PARTICULARS

a.    The [Tribunal] was aware of the need to consider the circumstances in the individual case in considering the relative weight to be accorded to the expectations of the Australia[n] community. As per para 153 of the [Tribunal’s Decision], with a footnote reference to the case of FYBR v Minister for Home Affairs [2019] FCAFC 185, at [71]-[72], [97]-[98], it stated:

[153.]    As to the weight to be given to this consideration, considerable care is required in determining the proper weight and the Tribunal must carefully consider the facts and circumstances of the case to determine whether it is appropriate.

b.    The [Tribunal] identified the submissions of the Applicant in determining the relative weight to be given to the Expectations of the Australian Community under cl 8.5. As per para 155 of the [Tribunal’s Decision], it stated:

[155]    The Applicant submits that there are a number of circumstances of relevance to assessing the weight to be given to this consideration, including:

(a)    the Applicant’s ties to the Australian community;

(b)    the Applicant’s current mental health, including the onset of dementia;

(c)    the Applicant’s current age, having recently turned 60;

(d)    the strict oversight of the parole board;

(e)    the Applicant’s lack of family or friends to support him in New Zealand;

(f)    the reduced risk the Applicant poses to the community in light of his efforts to rehabilitate; and

(g)    the steps taken by the Applicant to manage his health, and obtain employment in the community.

c.    Despite identifying the circumstances in the individual case in considering the relative weight to be accorded to the expectations of the Australia[n] community, the [Tribunal] concluded that these factors have been considered in assessing other considerations and the [Tribunal] was required to consider the deemed expectation as expressed in cl 8.5 and not to make its own assessment of the expectations of the Australian community. As per paras [156] and [157], the [Tribunal] concluded:

[156]    The Tribunal accepts that many of the factors identified by the Applicant are matters which are relevant to a consideration of the final decision. However, they have been given careful consideration in assessing other considerations and will thereby attract weight in the final assessment of factors for and against revocation. In assessing the weight to give to community expectations, the Tribunal is required to consider the deemed expectation as expressed in cl 8.5 and not to make its own assessment of the expectations of the Australian community.

[157]    In this case, the Tribunal is satisfied that the expectation of the Australian community, a primary consideration, should be given substantial weight in favour of not revoking the cancellation of the Applicant’s Visa in the overall assessment of all of the considerations.

d.    The [Tribunal] misapplied or misdirected itself in relation to Direction 99 because it treated cl 8.5 as ‘deeming’ what community expectations are, irrespective of the individual’s personal circumstances: QHRY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 827.

e.    That error was material to the [Tribunal]’s conclusion as to the weight to be given to cl 8.5 of Ministerial Direction Number 99 and, therefore, to the ultimate decision not to revoke the cancellation of the Applicant’s visa.

17    I shall address each ground in turn.

Ground one: validity of direction 99

18    The applicant submits that Direction 99 is invalid because it purports to fetter the exercise of power under s 501CA(4) and is, therefore, inconsistent with the Act in the way to which s 499(2) refers. There are two respects in which that was said to be so.

19    First, the applicant maintains that, by mandating the consideration of what are deemed to be the expectations of the Australian community, Direction 99 effectively prescribes an adverse outcome for those who have engaged in very serious offending. That is said to be inconsistent with s 501CA(4)(b)(ii), which does not contemplate any particular outcome in respect of any particular offending.

20    Second, he contends that Direction 99 serves to constrain the manner in which decisions under s 501CA(4) are to be made, despite the section itself containing no such constraints. He contends that “Direction 99 is inconsistent with the Act because it [serves to prohibit consideration of] what would otherwise be a matter that a decision maker should be able to have regard to when exercising its power and discretion [namely, that the Australian community might, in fact, expect that a former visa holder in the position of the applicant should have the cancellation of his or her visa revoked]”.

21    In that regard, counsel for the applicant referred to what Flick J observed (in dissent) in FYBR v Minister for Home Affairs [2019] FCAFC 185, [13] (hereafter, “FYBR”):

Notwithstanding that constant expectation, the Australian community would unquestionably have different expectations with respect to different contraventions. An abused wife, for example, who assaults or murders her husband in retaliation for her past treatment may well have been expected to not commit assault or murder; but Australian community expectations and the expectations of that community that protection should have been provided to an abused wife, may well lead to an expectation different to that held with respect to premeditated murder or assault. A child victim of a paedophile who murders their molester may similarly attract a different response as to the expectations of the Australian community as to how the offender is to be treated. One aspect of the expectations of the Australian community with respect to such offences may be that that the community has “let the wife or molested child down”. An expectation may legitimately be held by the Australian community that to refuse a visa may be only further letting the wife or child down.

22    It was argued in this case that, where the applicant had undergone positive steps towards rehabilitating his criminal tendencies, the Tribunal ought to have been able to break away from a fixed conception about the Australian community’s expectations, or to weigh those expectations in a way that took account of tempering factors.

23    I am not persuaded that Direction 99 serves, in the case of those who have committed serious criminal offences, to prescribe any particular outcome or process of reasoning in a way that might offend against s 501CA(4) of the Act (or the Act more broadly). On the contrary, by its terms, it does no more than to express propositions at a broad or general level. It reserves for individual decision makers the responsibility for determining, first, what weight should be attributed to relevant considerations; and, second, whether they might, once properly weighed, be thought to accumulate in any given case to a point that bespeaks “another reason” for the purposes of s 501CA(4)(b)(ii) of the Act.

24    There are many examples within the text of Direction 99 that demonstrate that that is so. Paragraph 5.1(3), for example, expressly notes the headline proposition that “…the decision-maker must consider whether there is another reason to revoke the cancellation given the specific circumstances of the case” (my emphasis). Similarly, paragraph 5.1(4) speaks of the purpose of the direction being "...to guide decision-makers” (my emphasis).

25    Section 6 of Direction 99 contains similar language. It mandates that decision makers should take account of the considerations later enumerated (including by paragraph 8.5); but only “where relevant to the decision” (my emphasis). Likewise, section 7 contemplates that “Primary” considerations should “generally” (my emphasis) be given greater weight than others.

26    Paragraph 8.5 itself continues on that theme. It holds that the Australian community “as a norm” (my emphasis) expects that those who partake of serious offending should not be permitted to enter or remain in Australia. Similarly, it contemplates that non-revocation “may” (my emphasis) be appropriate simply because of the nature of a former visa holder’s offending. The expectations so stated are described as those of the community “as a whole” (my emphasis).

27    Those observations are consistent with what the full court of this court held in Kumar v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 94, [43] (Logan, SC Derrington and Anderson JJ). Similarly, in Manebona v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 298 FCR 516 (Logan, Rangiah and Goodman JJ), consideration was given to a predecessor of clause 6 of Direction 99. The court accepted (at 530-531 [94]) that the provision:

…does not purport to limit the considerations to which a decision-maker may have regard in exercising the discretion under s 501CA(4), and does not require that a decision-maker must invariably take into account the considerations it specifies. What is required under para 6 is that a decision-maker take into account the considerations identified in paras 8 and 9, “where relevant” to the decision.

28    Direction 99 directs a decision maker to take account of what is stated to be, as the norm, an expectation on the part of the Australian community that non-citizens who have engaged in serious conduct in breach of Australian laws will not be permitted to enter or remain in Australia. That consideration—that is to say, the standard or “norm” expected by the Australian community as a whole—is just that: a norm. In understanding that norm, the direction contemplates that decision makers should proceed without any independent assessment of community expectation. Nonetheless, if there are, in any given case, circumstances that warrant that limited weight or significance should attach to the “norm” so expressed, then that is a course that a decision maker can prefer without any risk of non-compliance with Direction 99.

29    Thus, to address the hypothetical posed by Flick J in FYBR, if a victim of domestic abuse or paedophilia were to have committed assault or worse in retaliation for past treatment, Direction 99 leaves open the possibility that a decision maker might favour the view that, while “as a whole” and “as a norm” the expectation of the Australian community is that non-citizens who have engaged in serious conduct in breach of Australian laws should not be permitted to enter or remain in Australia, that norm should, in the particular circumstances, be afforded little or even no weight.

30    Direction 99 does not mandate any particular outcome in any given situation, nor does it require anything more than that account be taken of nominated considerations. It is not inconsistent with the Act in the ways that are alleged. The Tribunal’s compliance with its requirements in the present case was orthodox and, in any event, was not reflective of jurisdictional error. Ground one is not made out.

Ground two: purported failure to consider

31    The applicant’s second ground of challenge to the Tribunal’s Decision proceeds as an alternative to his first. By it, he charges the Tribunal with having failed to consider submissions that he advanced about the weight that it ought to have attached to the expectations of the Australian community (as articulated in Direction 99). Those submissions are replicated above (at [11]).

32    It is convenient to begin the analysis with a somewhat pedestrian observation. There can be no doubt that the Tribunal was obliged to consider what the applicant submitted as “another reason” to revoke the Cancellation: Plaintiff M1/2021 v Minister for Home Affairs (2022) 96 ALJR 497, 425-427 [24]-[27] (Kiefel CJ, Keane, Gordon and Steward JJ).

33    Here, the applicant’s complaint is that the Tribunal failed to take account of submissions that he made about the weight that should attach to the expectations of the Australian community (as expressed via Direction 99).

34    Something should be said about what it means to attach “weight” in that context. In Demir v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 870, Kennett J observed (at [21]-[22]):

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. …

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 decisionmaker; …

35    The applicant submits that this case has strong parallels with what Rangiah J decided in QHRY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 827. That matter involved a decision to refuse an application for a visa on character grounds. The applicant submitted that, despite his offending, the expectations of the Australian community should not weigh heavily against him because his Australian partner and dependent children would be deprived of his presence in the event that he were removed from Australia. The tribunal before which that submission was advanced acknowledged the submission and accepted that it was relevant and substantial. Nonetheless, it found that the expectations of the Australian community weighed very heavily in favour of refusal of the visa. The applicant charged it with having failed to address, or respond to, the submission that he had made about the weight that ought to be given to that consideration. Accepting that contention, Rangiah J (at [43]-[48]) held that the tribunal must have overlooked what the applicant had submitted:

…Either, the Tribunal considered the relevant submission, or the Tribunal overlooked it. If the Tribunal considered the submission, it must have accepted it, rejected it, or decided that it was irrelevant or so trivial that it was unnecessary to otherwise deal with it. If the Tribunal accepted the submission, then it would not have made the finding that the expectations of the Australian community weighed heavily in favour of refusal. If the Tribunal rejected the submission, then it would have explained why, since the Tribunal evidently considered it to be a relevant and substantial submission. The Tribunal plainly did not think that the submission was irrelevant or trivial.

The only possibility left is that the Tribunal overlooked the submission. That is supported by Tribunal’s reasoning at [112], which expressly referred to five factors, and suggests, by omission of any reference to the relevant submission, that the Tribunal did not engage with the submission.

…

The Minister submits that as the impact of the decision upon the applicant’s partner and children had already been considered earlier in the reasons, it was unnecessary to consider that issue again … However, the method of reasoning adopted by the Tribunal was to first decide what weight was to be given to each primary consideration and other consideration, and later assess those considerations in combination having regard to the weighting already decided. The Tribunal’s consideration of the effect upon the applicant’s partner and children was in the context of assessing the weight to be given to the best interests of the children and other considerations. The matter complained of is that the Tribunal assessed the weight to be given to the expectations of the Australian community without considering the effect upon the applicant’s partner and children. Having failed to do so, the Tribunal reasoned that the expectations of the Australian community weighed “very heavily”, and then decided that this finding together with its finding upon protection of the Australian community, “determinatively weighs” in favour of refusing the visa. The consideration of the effect upon the applicant’s partner and children elsewhere did not cure or otherwise affect the impact of the Tribunal’s failure to consider that factor when deciding the weight to be given to the expectations of the Australian community.

The applicant has established that the Tribunal made a jurisdictional error by failing to consider the relevant submission.

36    In this matter, it is plain that the Tribunal understood what the applicant contended was relevant to its assessment of the weight that should attach to the issue of community expectations. Under the heading, “Expectations of the Australian Community”, the Tribunal explicitly set out the applicant’s submissions and acknowledged they were “circumstances of relevance to assessing the weight to be given to this [community expectations] consideration”.

37    There can be no doubt, then, that the Tribunal was alive to the circumstances upon which the applicant relied and the contexts within which he relied upon them. Moreover, it expressly addressed each of them throughout the course of its reasons. The applicant’s complaint is that it did not expressly do so in the context of its assessment of what weight should attach to the expectations of the Australian community.

38    Two issues arise for consideration. The first is whether it might properly be inferred that the Tribunal’s determination that the expectations of the Australian community “…should be given substantial weight” (above, [13]) proceeded in isolation from its consideration of the tempering circumstances to which the applicant pointed (above, [11]). The second is whether it should matter either way.

39    I shall address the second question first. It has long been recognised that, absent some legislative requirement to the contrary, the weight that administrative decision makers might be minded to give to the various considerations by which their deliberations are informed is a matter for them: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 40 (Mason J); Abebe v Commonwealth (1999) 197 CLR 510, 580 [197] (Gummow and Hayne JJ); Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164, 176 [33] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ).

40    That being so, a submission or representation to the effect that a decision maker should give a particular “weighting” to a particular consideration that bears upon the existence or otherwise of (for present purposes) “another reason” is not obviously within the realm of matters of which a repository of statutory power must take account before exercising it. At least is that so in the case of the consideration that is in focus presently: the expectations of the Australian community. To submit that that consideration should attract less weight than it otherwise might in a revocation case is to invite a decision maker to assess its significance in a relative sense, by reference to other considerations that also bear upon the existence or otherwise of “another reason”; and to favour the view that those other considerations accumulate to a point where community expectations are, overall, less important to the assessment of “another reason” than might otherwise be the case.

41    It is, then, not clear to me why it should matter whether the Tribunal here “grapple[d] with”, or considered in a way that was “sufficient”, the circumstances that were advanced as relevant to the weight that should attach to the expectations of the Australian community. So long as it considered those circumstances and the extent to which they bore upon whether or not there was “another reason” for which the Cancellation ought to be revoked, I would be slow to accept that the Tribunal failed to take account of anything of which the proper exercise of its power required that it take account. To reiterate a point well-understood: the weight that should attach to individual considerations was a matter for the Tribunal. Things that the applicant said about what weight should or should not be given to the individual considerations that bore upon the Tribunal’s assessment as to whether there was “another reason” do not obviously present as mandatory relevant considerations.

42    In any event, that debate is academic. Here (turning now to the first of the two questions identified above), it is plain that the Tribunal considered each of the circumstances that the applicant advanced as relevant to the weight that should attach to the expectations of the Australian community. Having done so, it simply cannot be inferred that the “substantial weight” that it resolved to attach to the expectations of the Australian community was something that it determined in isolation from its consideration of those circumstances.

43    Whether a decision maker might be thought to have overlooked a particular consideration in the course of making a decision is a question of fact. Generally speaking, a finding to that effect is available only as a matter of inference, typically to be drawn from what is or is not said in any written reasons given for the decision: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 346 [69] (McHugh, Gummow and Hayne JJ). The evidential onus upon which the drawing of such an inference rests is for an applicant for judicial review to discharge: Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352, 364 [48] (Griffiths, White and Bromwich JJ); Jones v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 137 [78] (Charlesworth and Thomas JJ). The court should be slow to draw such an inference in circumstances where the reasons given for a particular decision are comprehensive and the issue that is said to have gone without consideration has at least been identified: WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593, 604 [47] (French, Sackville and Hely JJ).

44    Furthermore, when a matter or circumstance pertains to more than one relevant consideration, it is not generally necessary for an administrative decision maker to take account of it repetitiously. In XXBN v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 74 (Bromberg, Stewart and Goodman JJ), this court held (at [53]):

The appellant’s submission that the Tribunal was required to give a double weighting and that he was entitled thereby to another “score on the board” is contrary to the authorities cited by the primary judge at J[111]. We agree that “where a matter is relevant to two or more mandatory relevant considerations, a decision-maker is not usually required to take the matter into account repetitiously”: Bale v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 646 at [26] per Perram J, adopted in WQRJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 736 at [78] per Derrington J.

45    Although perhaps not expressed as cleanly as it could have been, the Tribunal’s weighting of the expectations of the Australian community in this case was orthodox. Its observation that “[i]n assessing the weight to give [to community expectations]…the Tribunal is required to consider the deemed expectation…and not make its own assessment” is not strictly accurate (in that the requirements referred to do not dictate what weight should or should not attach to that consideration). Nonetheless, reading its reasons fairly and without an eye keenly attuned to the perception of error, it is clear that the Tribunal considered that it was required to take account of community expectations as deemed by Direction 99, that it should do so without any independent assessment of those expectations, that there were circumstances that the applicant said bore upon how significant those expectations should loom in the context of his Review Application, and that it should assess (as it did) each of those circumstances. Proceeding on that basis to make an assessment about the significance of (or the weight that should attach to) community expectations involved no misunderstanding of the jurisdiction with which the Tribunal was invested. Ground two is not made out.

Disposition

46    Neither of the applicant’s grounds is made good and the application should (and will) be dismissed. There is no reason why the usual order for costs ought not to be made.

Associate:

Dated:    3 April 2024