Awa v Minister for Immigration & Multicultural & Indigenous Affairs

Federal Court of Australia (Full Court)|2002-01-01|Before: North JJ

THE COURT: 1 This appeal is brought against the decision of the Administrative Appeals Tribunal ("the Tribunal") made by a Deputy President on 8 June 2001. The decision affirmed a decision of the delegate of the respondent, dated 25 August 2000, refusing an application for a combined Class UG Subclass 310 Interdependency (Provisional) and Class B1 Subclass 110 Interdependent (Migrant) Visa. The application was made by Geraldine Fernandez ("the visa applicant") in respect of whom the appellant was the sponsor. The application was brought pursuant to provisions of the Migration Act 1958 (Cth) ("the Act").

Background circumstances 2 The circumstances relating to the appellant, the visa applicant and the events relevant to a determination of the application were set out in a statement provided by the respondent which was before the Tribunal. It was set out in full in the reasons of the Tribunal and reads as follows: "1.1 The Visa Applicant, Ms Geraldine Fernandez, was born in the Philippines on 12 December 1968. She first entered Australia on 3 April 1998 on a visitor visa permitting temporary residence in Australia for a period of three months. 1.2 On 8 May 1998 she applied for a protection visa, submitting a detailed account of her claims to fear persecution … this information was considered by the Minister's delegate and, on 8 May 1998, decided to refuse the application for a protection visa … 1.3 On 3 June 1998, the Visa Applicant sought review of this decision with the Refugee Review Tribunal. ON 13 August 1998, the RRT affirmed the decision to refuse the Visa Applicant a protection visa … As a result of that decision, the Visa Applicant sought the exercise of the Minister's discretion under section 417 of the Migration Act 1958 … That letter was received by the Minister's office on 31 August 1998. 1.4 On 3 February 1999 the review Applicant, Mr Ahl Diroy, wrote to the Minister for Immigration and Multicultural Affairs supporting the Visa Applicant's application for intervention under section 417 of the Act … This letter enclosed a "certificate of commitment" …dated 29 November 1998. On 26 March 1999 the review Applicant wrote a second letter to the Minister supporting the request by the Visa Applicant for intervention under section 417 of the Act … 1.5 On 9 June1999, the Minister decided against exercising his discretion in this case … This decision was communicated to the Visa Applicant on 23 June 1999. 1.6 The Visa Applicant departed Australia on 24 September 1999. Prior to her departure on 20 September 1999, the Visa Applicant lodged an application for an interdependency visa … at the Sydney office of the Respondent. 1.7 In an application lodged on 4 January 2000, the Visa Applicant made an application for a tourist visa to Australia under a false name, Ms Maria Corazon Umali. In support of that visa application she submitted a number of documents she knew to have been fraudulently obtained or falsely procured … Departmental records indicate that the Visa applicant arrived in Australia under the name Umali on 16 January 2000 … Those records also indicate that she departed Australia on 9 April 2000. 1.8 Prior to departure, on 15 February 2000 the Visa Applicant, under her false name, applied for an extension of her visitor stay in Australia. This prompted a number of requests for information from an officer of the Respondent's Department located in Sydney to Manila … There is no evidence that an extension of her visitor's visa was granted. 1.9 The Visa Applicant returned to the Philippines on 9 April 2000 and attended an interview with the Respondent's Department of Immigration in Manila on 10 April 2000. Upon lodgement of her application in Manila, the Visa Applicant was interview by the staff of the Respondent's Department. … 1.10 On 6 and 7 April 2000, officers of the Respondent in Manila attempted to contact the Applicant and were told by the person answering the phone that the Visa Applicant was "out" … It appears that this prompted the Visa Applicant, at that time in Australia, to return to the Philippines to attend her interview. The interview occurred on 10 April 2000 … No mention was made at that time by the Visa Applicant that she had just visited Australia under a false passport. 1.11 Some time after this interview, in May 2000, officers of the Respondent received an anonymous letter in Manila, referring to the Applicant's recent travel to Australia under the false name Umali … The Visa Applicant was interviewed for a third time in Manila on 5 June 2000 at which point this latest information was put to her for comment. The Visa Applicant admitted to this and other issues at that interview … 1.12 On 5 June 2000, a letter was sent to the Visa Applicant seeking her comment on a number of issues relating to her character …, to which the Applicant's response is recorded at T55. 1.13 On 25 August 2000 a decision was made to refuse the Visa Applicant's application and reasons for this decision provided …"

Relevant legislative and policy provisions 3 The Act provides that, subject to the Act, the Minister may grant a non-citizen permission, to be known as a visa, to remain in Australia: s 29(1)(b). Visas may be permanent or temporary: s 30. There are prescribed classes of visa: s 31(1). Furthermore, the Regulations prescribe criteria for a visa of a specified class: s 31(3). The Regulations may provide that visas, or visas of a specified class, are subject to specified conditions: s 41(1). 4 Regulation 2.01 provides that for the purposes of s 31 of the Act, the prescribed classes of visas are (other than those created by the Act) such classes as are set out in the respective items in Sch 1 to the Regulations and transitional (permanent) and transitional (temporary). Regulation 2.02 provides that Sch 2 of the Regulations is divided into parts each identified by the word "subclass". Regulation 2.03 provides that for the purposes of subs 31(3) of the Act the prescribed criteria for the grant to a person of a visa of a particular class are (a) the primary criteria set out in the relevant Part of Sch 2; or (b) if a relevant Part of Sch 2 sets out secondary criteria, those secondary criteria. Regulation 2.05 provides that for the purposes of subs 41(1) of the Act the conditions to which a visa is subject are the conditions (if any) set out in, or referred to in, the Part of Sch 2 that relates to visas of the subclass in which the visa is included. 5 Item 1220A of Sch 1 provides for a class of visa known as Partner (Provisional) (Class UF). One of the specified subclasses is "310 (Interdependency (Provisional))". Item 1129 of the same Schedule provides for a Partner (Migrant) (Class BC) and includes as a subclass "110 (Interdependency)". 6 It was for a Subclass 310 visa that the applicant first applied. The criteria for this subclass which require satisfaction at the time of application and at the time of decision are not in dispute. At the time of application the visa applicant had turned 18 and was in an interdependent relationship with an Australian citizen over 18 who had sponsored her. 7 The criteria to be satisfied at the time of decision are provided for in par 3.10.22 of Sch 2. There was not before the Tribunal any issue that the visa applicant continued to satisfy the criteria applicable at the time of application; that the sponsorship had been approved and was in force and that the visa applicant continued to be in an interdependent relationship with an Australian citizen. What was an issue was the requirement in par 3.10.24 as to whether the applicant satisfies public interest criteria 4001, being one of several such criteria referred to in that paragraph. 8 The criteria to be satisfied at the time of application and at the time of decision are described by par 3.10.2 as primary criteria. The secondary criteria applicable to other members of the family unit of the applicant include the provision at par 3.10.323 that at the time of decision the applicant satisfies public interest criteria 4001. 9 In the reasons of the Tribunal reference was made to this case involving a consideration of the application of par 3.10.323. It is not apparent why that paragraph was relied upon in preference to par 3.10.24 as the application was that made by the visa applicant and not a member of her family. The issue arising under either paragraph is nevertheless identical. 10 Public interest criteria are set out in Sch 4 to the Migration Regulations. Criteria 4001 reads: "4001 Either: (a) the applicant satisfies the Minister that the applicant passes the character test; or (b) the Minister is satisfied, after appropriate inquiries, that there is nothing to indicate that the applicant would fail to satisfy the Minister that the person passes the character test; or (c) the Minister has decided not to refuse to grant a visa to the applicant despite reasonably suspecting that the applicant does not pass the character test; or (d) the Minister has decided not to refuse to grant a visa to the applicant despite not being satisfied that the applicant passes the character test." Regulation 1.03 defines public interest criterion for the purposes of the application of this provision. 11 It is not in dispute that the reference to "the character test" in public interest criteria 4001 is relevantly a reference to the provisions of s 501(6) of the Act. That subsection reads: "(6) For the purposes of this section, a person does not pass the "character test" if: (a) the person has a substantial criminal record (as defined by subsection (7)); or (b) the person has or has had an association with someone else, or with a group or organisation, whom the Minister reasonably suspects has been or is involved in criminal conduct; or (c) having regard to either or both the following: (i) the person's past and present criminal conduct; (ii) the person's past and present general conduct; the person is not of good character; or (d) in the event the person were allowed to enter or to remain in Australia, there is a significant risk that the person would: (i) engage in criminal conduct in Australia; or (ii) harass, intimidate or stalk another person in Australia; or (iii) vilify a segment of the Australian community; or (iv) incite discord in the Australian community or in a segment of that community; or (v) represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment or in any other way." 12 That subsection is to be read with the principal operative provision of the section contained in s 501(1) which reads: "501. (1) The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test." It will be observed that the power in this subsection relates to a refusal of a visa on character grounds. A power to cancel a visa on similar grounds related to the non-satisfaction of the character test appears in s 501(2). Section 501(1) in its terms involves firstly, a condition of non-satisfaction by the applicant person in respect of the character test and secondly, a discretion residing in the Minister to consider whether to refuse to grant a visa in that circumstance. 13 Relevantly here the respondent contended before the Tribunal, successfully, that the applicant did not pass the character test because she could not meet the requirements of s 501(6)(c)(ii). As will appear, the circumstances relied upon for this view may arguably equally have supported the relevance and non-satisfaction of s 501(6)(c)(i). 14 Section 501 appears in Pt 9 of the Act which addresses "Miscellaneous Matters". It includes s 500 pursuant to which the application was made to the Tribunal. 15 Also in Pt 9 is a provision in s 499 for the Minister to give written directions. That provision is as follows: "499. (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. (1A) For example, a direction under subsection (1) could require a person or body to exercise the power under section 501 instead of the power under section 200 (as it applies because of section 201) in circumstances where both powers apply. (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). (3) The Minister shall cause a copy of any direction given under subsection (1) to be laid before each House of the Parliament within 15 sitting days of that House after that direction was given. (4) Subsection (1) does not limit subsection 496(1A)." Section 200 empowers the Minister to order deportation of a non-citizen where the provisions of Div 9 of Pt 2 apply. Section 201 contains provisions in respect of deportation of non-citizens in Australia for less than ten years who are convicted of crimes. Section 496(1A) is expressed in terms which do not limit the operation of s 499(1) in respect of a delegate of the Minister. Neither of these sections has any relevance on this appeal beyond their reference in s 499. 16 On 16 June 1999 the Minister purported to bring into effect a direction ("Direction No.17) in reliance on s 499 and titled "Visa Refusal and Cancellation under s 501 of the Migration Act 1958". The stated purpose of Direction No.17 was to provide guidance to decision-makers in making decisions to refuse or cancel a visa under s 501 of the Act. The Direction No.17 was stated as consisting of 2 parts. Part 1 sought to provide directions on the application of the character test. Part 2 sought to provide directions on what these considerations are and the weight to be given to them. In Pt 1 Direction No.17 addressed the four grounds against which a non-citizen may be considered to not pass the character test in accordance with the provisions of s 501(5). The provisions of this Part are of no relevance to this appeal. 17 Part 2 was entitled "Exercising the Discretion". In par 2.1 it stated that in a situation where the non-citizen did not pass the character test, decision-makers "must have regard to the following considerations when exercising the discretion to decide whether or not the non-citizen should be permitted to enter or remain in Australia". Under the heading "Weight of Consideration" there then appeared the following paragraph: "2.2 the Government is mindful of the need to balance a number of important factors in reaching a decision whether or not to refuse or cancel a visa. In making such a decision, a decision-maker should have regard to three primary considerations and a number of other considerations. The primary considerations are set out at paragraphs 2.3 - 2.16 and other considerations are set out at paragraphs 2.17 - 2.24. Decision-makers must have due regard to the importance placed by the Government on the three primary considerations, but should also adopt a balancing process which takes into account all relevant considerations." Paragraph 2.3 then provided: "2.3 In making a decision whether to refuse or cancel a visa, there are three primary considerations: (a) the protection of the Australian community, and members of the community; (b) the expectations of the Australian community; and (c) in all cases involving a parental relationship between a child or children and the person under consideration, the best interests of the child or children." The following pars (2.4 - 2.16 inclusive) gave further directions in relation to the content of these "primary considerations". 18 Direction No.17 then contains a bold heading "Other Considerations". Immediately under that heading appears the following: "2.17 When considering the issue of visa refusal or cancellation, other matters, although not primary considerations, may be relevant. It is the Government's view that where relevant, it is appropriate that these matters be taken into account but that they be given less individual weight than that given to the primary considerations." Then follows a list of "other considerations" that may be relevant. In the case of the visa applicant the following such "other consideration" was arguably relevant: "… (b) genuine marriage to, or de facto or interdependent relationship with, an Australian citizen, permanent resident or eligible New Zealand citizen: · in assessing the compassionate claims of the Australian partner (Australian citizen, resident or eligible New Zealand citizen), decision-makers must consider the circumstances under which the relationship was established and whether the Australian partner knew that the non-citizen was of character concern at the time of entering into or establishing the relationship; …"

Prior decisions on effect of Direction 19 Before going to the Tribunal's reasoning it is necessary to refer to a number of decisions which have preceded the delivery of these Tribunal's reasons to which the reasons make reference. The first was decided on 4 May 2001 under the name of Aksu v Minister for Immigration & Multicultural Affairs [2001] FCA 514. It came before the Court as an application for review of a decision by the respondent Minister to cancel Mr Aksu's visa pursuant to s 501 of the Act. That involved a consideration of the part played by Direction No.17 in the making of the decision by the Minister. The reasons of Dowsett J referred to acknowledged statements of on the appropriateness of policy directions in the exercise of statutory discretion in Drake v Minister for Immigration & Ethnic Affairs (1979) 46 FLR 409 at 419 - 421 per Bowen CJ and Deane J and by Brennan J in Re Drake v Minister for Immigration & Ethnic Affairs (No 2) (1979) 2 ALD 634 at 640 - 641. Additionally, reference was made to Minister for Immigration & Multicultural Affairs v Gray (1994) 50 FCR 189 at 206 - 7 per French and Drummond JJ. After reference to the contents of pars 2.2 and 2.17 of the Direction, Dowsett J said: "A matter of concern, however, is the use of categories (primary and other considerations) and the prescription that: … no individual considerations can be more important than a primary consideration, but … a primary consideration cannot be conclusive in itself in deciding whether to exercise the discretion to refuse or to cancel a visa. This appears to mean that in every case, considerations concerning protection or expectation must be treated as at least equally important as any non-primary consideration, without regard to the facts of the case. Elsewhere, the Direction invites a balancing exercise which would normally involve an assessment of all relevant factors, having regard to their significance in the case in question. The Direction appears to fetter that process to the extent that it prescribes that some factors can never have more weight than others. The qualification that "a primary consideration cannot be conclusive in itself" is of little effect. Two primary considerations, protection and expectations will be present in almost all cases, militating in favour of refusal or cancellation of the visa. Where there are two primary considerations, and no other consideration can have more weight than either of them standing alone, an almost mathematical logic compels a decision which upholds those primary considerations. Further, as the primary considerations are really direct outcomes of the person's bad character, the effect is that once he or she fails the character test, there is virtually a prescription in favour of refusal or revocation of the visa. This is inconsistent with the unfettered discretion conferred by s 501. It is one thing to say that some factors should generally be treated as more important than others. This is the situation with which Sackville J was concerned in Bustescu. It is quite another thing to say that a particular consideration must always be treated as at least equally important as another consideration without regard to the facts of the case. Section 501 prescribes failure to satisfy the character test as a condition precedent to the exercise of the discretion to refuse or cancel. It does not create any presumption as to the way in which that discretion should be exercised. The unfettered nature of the discretion inevitably implies that in particular circumstances any one factor may, at least theoretically, outweigh any other possibly relevant factor." His Honour then turned to determine whether the Minister's use of Direction No.17 was such as to deprive his decision of the validity. He found that the Minister's decision as to the pre-eminence of the primary considerations was not based upon his assessment of the case and that his adoption of a briefing paper implied his adoption of the binding nature of Direction No.17 as to weight. He therefore held that this constituted a fettering of the discretion which constituted an error of law for the purposes of par 476(1)(e) of the Act. 20 In Ruhl v Minister for Immigration & Multicultural Affairs (2001) 184 ALR 401, also decided prior to the Tribunal reasons being delivered, Cooper J followed Aksu and found in the particular circumstances before him that there was an error of law. Both Cooper J and Dowsett J distinguished the decision of Bustescu v Minister for Immigration & Multicultural Affairs (1999) 57 ALD 161 and Lau v Minister for Immigration & Multicultural Affairs [2000] FCA 698 to which it will be necessary to return. 21 The Tribunal decision was handed down on 8 June 2001. Subsequently, decisions in Javillonar v Minister for Immigration & Multicultural Affairs [2001] FCA 854; Jahnke v Minister for Immigration & Multicultural Affairs [2001] FCA 897; and Andary v Minister for Immigration & Multicultural Affairs [2001] FCA 1544 followed and applied Aksu in the particular circumstances before those courts. The latter two decisions did not follow the decision in Turini v Minister for Immigration & Multicultural Affairs [2001] FCA 822 which did not accept the authority of the decision in Aksu. There the view reached by Whitlam J was that there is ample scope within Direction No.17 for an individual's particular circumstances to be advanced under the rubric of the primary considerations so that the balancing process mandated by it will not fetter the discretion under s 501(1) of the Act. In Jahnke Drummond J agreed with Whitlam J to the extent that proper effect might be able in some circumstances to be given to an individual's particular circumstances within the first two primary considerations. However, he continued: "But that will not always be the case. There may be cases in which evaluation of the circumstances relevant to the first two (or even to all three) primary considerations may, with varying degrees of cogency, favour visa cancellation, but one or more non-primary considerations may so strongly favour non-cancellation as properly to be regarded as requiring that result, yet the decision-maker who is bound by, or who as Minister voluntarily applies, the Direction would be prevented by the fetter on the statutory discretion contained in par 2.2 of the policy from declining to cancel the visa." 22 Bustescu was a case which concerned a direction made pursuant to s 499 to provide guidance to decision-makers in considering the making of deportation decisions. There only two primary considerations were provided for, namely the expectations of the Australian community and the interests of children, the former encompassing both community protection and expectation of removal. In par 21 of that direction, reference was made to "other considerations" and it was stated that "it is appropriate that these matters be taken into account but given less weight than the primary considerations". The applicant contended that the direction was invalid because properly construed it prevented the decision-maker considering the merits of an individual case and was therefore inconsistent with s 200 of the Act: see s 499(2). Sackville J rejected the submission. He directed attention to a statement in par 5 of the direction that it drew attention to the need to balance a number of important factors where it was said, in common with Direction No.17, that in addition to having due regard to the importance placed by the Government on the two primary considerations, the decision-maker "should also adopt a balancing process which takes into account all relevant considerations"; cf par [2.2] of the Direction No.17 above. He referred to the terms of another paragraph recognising that deportation may not be inevitable. Additionally, he relied on the principle that if an instrument could be construed so as to avoid being held ultra vires, that interpretation should be adopted. In distinguishing Butescu, Dowsett J relied on the terms of the direction before Sackville J and in the provision in Direction No.17 in par 2.2 that "decision-makers should note that no individual considerations can be more important than a primary consideration, but that a primary consideration cannot be conclusive in itself in deciding whether to exercise a discretion to refuse or cancel a visa". Dowsett J considered that by these words Direction No.17 went further than the direction before Sackville J. 23 On 23 August 2001 the Minister made a substituted direction ("Direction No 21") relating to visa refusal and cancellation under s 501. In par 2.2 the sentence above quoted is omitted. In par 2.17 the word "generally" qualifies the statement in relation to matters to be given less individual weight as quote "other considerations". That formulation, however, is not an admission for the purposes of this appeal. Additionally, it should be noted that the respondent did not appeal any of the abovementioned single judge decisions concerning the application of Direction No.17.

Tribunal's reasons 24 After referring to the background circumstances quoted above, the Tribunal set out the contentions made on behalf of the respondent. These were to the effect that Direction No.17 remained binding upon the Tribunal notwithstanding the decision in Aksu. It was contended that the remarks of Dowsett J were obiter. Reliance was placed on Bustescu and Lau. The Tribunal after then having set out in extenso evidence before it stated that in a recent prior decision by the same Tribunal member had reached a view in relation to Direction No.17. That had occurred in Re Batula v Minister for Immigration & Multicultural Affairs [2001] AATA 496. There the Tribunal member had concluded: "(n) In summary then, the Direction, which in its terms is directed at the Minister's delegates and this Tribunal, does no more or less than require the latter to weigh all of the various considerations, and to come to a decision on the balance of those considerations. I do not think that the fact that some of them are said to be primary requires an interpretation that they are all important, since if this were so, the others would be otiose. (o) It is then my view that the Direction does bind this Tribunal and, even if it does not, it should be considered as a clear statement of applicable policy." The Tribunal member then continued: "3(e) It follows then that I find in this matter also, that for reasons set out in Re Batula (supra), the Direction is binding on the Tribunal or, even if it is not, it constitutes policy to which the Tribunal should have regard. I hold, however, that it does not impose a fetter on the discretion conferred on the Tribunal under part 2 of the Direction, and that it is not illegal." It is not apparent the Tribunal had powers to enable it to make the legal findings appearing in the last sentence of this paragraph but that aspect is not relevant to the resolution of this appeal. It is to be noted that in the same sentence the fetter which the Tribunal referred to is that "conferred on the Tribunal under part 2 of the Direction". Later in the same reasons at par 7 the Tribunal again referred to the discretion being one conferred in Pt 2 of Direction No.17. The true source of the discretion resides in s 501(1). 25 The Tribunal then turned to the application of the terms of Direction No.17. In relation to the factors arising under Pt 1, the Tribunal concluded: "(6) It is clear then, that on a balance of probabilities, the Visa Applicant was guilty of numerous breaches of section 234 of the Act where the maximum penalty provided is substantial, and also section 235 of the Act where the maximum penalty is less serious. There was no evidence of recent good behaviour in any sense and the Visa Applicant must be taken to fail the character test, and that by a wide margin. … The evidence reveals that the Visa Applicant treated the whole of Australia's migration system as an obstacle to be subverted and surmounted by any means, fair or foul." The Tribunal also added with reference to the contention that Direction No.17 is invalid that it did not assist when regard was had to s 501(2) and 501(6)(c)(ii) of the Act. 26 The Tribunal then turned to consider the application of Pt 2 of the Direction No.17. It commenced by looking at the evidence in relation to the primary considerations in par 2.3. It was common cause that the third factor relating to the best interests of a child had no application in the case. In relation to the application of par 2.3 in the light of par 2.5 concerning recidivism, the Tribunal concluded it was likely that if granted a visa the visa applicant would have no need to offend again although that could not be altogether discounted. However, as to the seriousness and nature of the conduct it considered that the conduct of the visa applicant was "very serious" within the terms of par 2.6(c). That subclause provided: "2.6 It is the Government's view that the following are examples of offences which are considered by the Government to be very serious: … (c) serious crimes against the Migration Act 1958, including, but not limited to, … presenting false or forged documents or making a false or misleading statement in connection with entry or stay in Australia; …" In relation to deterrence and expectations of the Australian community, the Tribunal relied on statements in Re Batula to support the view that the grant of a visa in the circumstances under consideration would fail to provide the necessary deterrent effect. 27 The Tribunal then concluded this aspect of its reasoning as follows: "7(e) Both of the two relevant primary considerations are, leaving aside the fact that I do not think there is much risk of recidivism, against the Applicant. I accept, having regard to clause 2.17, that to separate the Applicant and the Visa Applicant would cause hardship to the Applicant. But the degree of hardship is not substantial, and certainly not even remotely as substantial as the hardship factor in each of Re Peljha and Minister for Immigration and Multicultural Affairs [2000] AATA 967 and Re Golding and Minister for Immigration and Multicultural Affairs [2000] AATA 956. The Applicant is also a Filipino who speaks the Tagalog language. While a return to the Philippines is not what she desires, it is by no means impossible for an educated civil engineer turned theatrical impresario." Subsequently in recording his observations relating to credibility the Tribunal member stated that the visa applicant had embarked on the web of deceit required for her second visit out of devotion to the applicant, displaying a level of resourcefulness. However, her activities in this regard were "highly illegal" and that had it not been for an anonymous letter, she might "in her assumed guise have escaped detection". The Tribunal then concluded "this is not a case where the discretion can be exercised in favour of the Visa Applicant so that the decision under review required affirmation".

Grounds of appeal 28 Leave was given to the appellant to rely upon a second further amended notice of appeal. The grounds stated in that notice are : 1. the Direction constitutes a fetter on the discretion prescribed in s 501(1) of the Act. 2. by reason of s 499(2) of the Act, the Minister has no power to give the Direction. 3. the application of the Direction by AAT resulted in the unlawful fettering of the discretion that AAT purportedly exercised.

Submissions for the parties 29 Counsel for the appellant in reliance on oral and written submissions contended for the applicability of the reasoning in Aksu in the particular circumstances of this matter. Emphasis was placed on the content of s 499(2A) as compelling compliance with Direction No.17 so that, if it fettered the discretion, legal error would have been the consequence. In relation to the content of par 2.17 of Direction No.17, it was accepted that if a negative finding had been made in relation to the primary considerations in terms of par 2.2, it was open for them to be outweighed by positive findings pursuant to par 2.17. However, it was submitted that the error would arise where, no matter how strong the weight of the considerations arising pursuant to par 2.17, they could not outweigh findings in relation to the primary considerations under par 2.2. It was said that the case of the appellant was illustrious of the difficulty this would give rise to because the harm to her interdependent relationship was precluded from being given the requisite weight and effect in the circumstances by the provisions of Direction No.17. 30 Fundamental to the submissions for the appellant were that a proper examination of the reasons of the Tribunal showed it had not engaged in any balancing and that this was confirmatory of the effect which Direction No.17 had on its reasoning. It was disputed that the findings of the Tribunal in par 6 of its reasons gave weight in relation to the primary considerations. 31 For the respondent three principal submissions were made. The first was that s 499 of the Act does allow for the making of Direction No.17 and for the consideration of the weight of the relevant circumstances whether primary considerations or other considerations. Secondly, it was submitted that Direction No.17 does not prescribe the weight or preclude other considerations from having their requisite effect according to their weight. Thirdly, it was said that whether or not Direction No.17 fettered the discretion of the decision-maker, the Tribunal had proceeded in a way which involved it in giving due weight to each of the relevant circumstances and engaging in a balancing exercise so that the purported observance of Direction No.17 had not fettered its discretion. Reliance was placed on the reasoning in Butescu and Lau.

Observations 32 Four additional matters rose during the course of argument, none of which in our opinion dictates the outcome of this appeal but which merit reference. 33 The first is, counsel for the respondent drew to the Court's attention the origins of the phrase "primary considerations". He did so by taking the Court to Minister for Immigration & Ethnic Affairs v Teoh (1995) 183 CLR 273 at 286. There reference is made to the Convention on the Rights of the Child, Art 3 in which there is a provision requiring that "the best interests of the child shall be a primary consideration". At 292 Mason CJ and Deane J referred to that policy requirement as not having been treated by a decision-making panel as a primary consideration and stating that that would have involved the panel in "asking whether the force of any other consideration outweighed it". In Wan v Minister for Immigration & Multicultural Affairs (2001) 107 FCR 133 at 142, Branson North and Stone JJ applied the dictum in Teoh at 292. It was said for the respondent that this was the origin of the concept of "primary considerations". How there can be a plurality of primary considerations is an intriguing question. The only way there can be a plurality of primary considerations is if "primary" is understood to mean not "paramount" but simply "very significant". 34 Secondly, during the course of argument the relevant question was said to be to examine whether Direction No.17 fettered a relevant discretion and thus gave rise to legal error. However, there is a real question whether the most relevant question is whether the terms of Direction No.17 are "inconsistent" with the Act: s 499(2). This involves examination of the inter-relationship between s 501 and s 499 in particular. Further, it requires consideration of the question whether the discretion to be exercised by a decision-maker pursuant to s 501(1) is a discretion to be construed in the context of any direction made pursuant to s 499 so that s 501(1) takes effect as if expressed to be subject to s 499. It was unnecessary for these matters to be taken further. 35 Thirdly, submissions for the respondent raised the possibility that if the words in par 2.2 and par 2.17 of Direction No.17 said to fetter the discretion have that effect, the Direction should be construed and applied as if those words were not included. The legal basis for this submission is that the Direction is an "instrument" within the scope of s 46(1)(b) of the Acts Interpretation Act 1901 (Cth) which provides relevantly: "46 (1) Where an Act confers upon any authority power to make, grant or issue any instruction (including rules, regulations or by-laws), then: (a) … (b) any instrument so made, granted or issued shall be read and construed subject to the Act under which it was made, granted or issued, and so as not to exceed the power of that authority, to the intent that where any such instrument would, but for this section, have been construed as being in excess of the power conferred upon that authority, it shall nevertheless be a valid instrument to the extent to which it is not in excess of that power." 36 Fourthly, it is to be noted that in the second further amended notice of appeal the remedies sought on behalf of the appellant were in terms of a declaration that Direction No.17 is invalid or alternatively that Pt 2 of the Direction is invalid. It is to be noted that none of the decisions of the single judges previously referred to resulted in the grant of declaratory relief. Rather, orders were made, if appropriate, that the relevant decision be set aside. The appropriateness of a declaration was not supported in submissions.

Reasoning 37 In our opinion the resolution of this appeal does not require any decision in relation to the validity of Direction No.17 or conclusion of the issue whether the whole or part of the Direction fetters the discretion in s 501(1) of the Act, these being the two questions of law raised in the notice of appeal. This is because we consider that the appeal falls for resolution in its own factual circumstances. (In any event the issue of the new substituted Direction on 23 August 2001 renders further obiter on the issues contended for on behalf of the appellant otiose in respect of exercises of the relevant discretion after that date). In our view a proper reading of the reasons of the Tribunal shows that the Tribunal did in fact engage in a balancing exercise. We accept that in par 6 the Tribunal ascribed weight to the Pt 1 factors. It then proceeded to ascribed weight to the Pt 2 factors. In its conclusion in par 7(e) it reached the view that the "not substantial" value which it had accorded to the degree of hardship to the appellant could not outweigh the "serious" character of the primary considerations. While the Tribunal did not use language which may have more expressly evidenced an act of balancing, it is apparent from consideration of these paragraphs in the context of all the reasons including those characterising the actions of the visa applicant in relation to the primary considerations, that the Tribunal did in fact balance the considerations. 38 We therefore accept the submission for the respondent that the Tribunal in its reasons reached the view that the issue of hardship did not come close to overcoming the primary considerations. Likewise, we accept the submission for the respondent that the way in which the Tribunal dealt with the circumstances of the present case was equally consistent with the Direction being read in the manner contended for by the respondent or with the words objected to for the appellant in pars 2.2 and 2.17 excised or with the power in s 501(1) unadorned by any direction. We add "or with the Direction construed in accordance with s 46(b) of the Acts Interpretation Act 1901 (Cth)". It must therefore follow that even if the Direction were invalid, the purported adoption of it by the Tribunal did not lead in the circumstances of this case to any material error. 39 Accordingly, the appeal should be dismissed with costs. I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Spender, RD Nicholson and North.

Solicitors for the Appellant: Yandell Wright Stell

Counsel for the Respondent: Mr S Gageler SC and Mr G Kennett

Migration Act 1958(Cth)ss 29(1)(b), 30, 31(1), 31(3), 41(1), 200, 201, 476(1)(e), 496(1A), 499, 499(1), 499(2), 499(2A), 500, 501, 501(1), 501(2), 501(5), 501(6), 501(6)(c)(i), 501(6)(c)(ii)

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