consideration
41 For the following reasons, we consider that the appellant has failed to make good his contention that the primary judge erred in not accepting his claim that the Tribunal fell into one or more jurisdictional errors as claimed in the notice of appeal.
42 First, the primary judge was plainly correct to emphasise at the outset the relevance of the well-established principle to the effect that the reasons of administrative decision makers ought not to be construed minutely and with an eye keenly attuned to the perception of error. This is a particularly important principle having regard to the appellant's submissions concerning the primary judge's reading of [86] of the Tribunal's reasons for decision.
43 Secondly, and partly related to that first principle, we consider that the primary judge was correct to emphasise the need to appreciate that it is usual for administrative decision-makers (and indeed others) to express their reasons sequentially. For example, expressions of conclusion in a particular sequence do not necessarily indicate that there has been a failure to consider the evidence as a whole. The primary judge cited the following passage from Gleeson CJ's judgment in Applicant S20 at [14]:
Decision-makers commonly express their reasons sequentially; but that does not mean that they decide each factual issue in isolation from the others. Ordinarily they review the whole of the evidence, and consider all issues of fact, before they write anything. Expression of conclusions in a certain sequence does not indicate a failure to consider the evidence as a whole. I do not think that the Tribunal member intended to convey that she made up her mind about the evidence of the applicant/appellant before taking account of the evidence of the witness who was said to corroborate him.
44 Although that passage dealt directly with sequential reasons in relation to evidence given by different witnesses, we consider that its underlying principle, which recognises the need to read a decision-maker's reasons as a whole, applies equally to a case such as here, where the Tribunal's reasons deal sequentially with different issues or considerations. All the more so in our opinion where, having dealt with relevant individual primary and other considerations, the Tribunal uses language which expressly indicates that it has given consideration to particular matters both singularly and cumulatively, as is indicated in the sentence in [86] of the Tribunal's reasons which we have emphasised in the passages set out in paragraph 30 above.
45 Thirdly, and related to the second matter dealt with immediately above, we also agree with the emphasis given by the primary judge to the need for the Tribunal's reasons for decision to be read as a whole. To approach the matter otherwise is to ignore the High Court's admonition in Wu Shan Liang at 272 that:
… the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.
46 Fourthly, we consider that the primary judge correctly acknowledged and applied the well-established general principle that "it is for the decision-maker to give such weight to the relevant considerations as she or he deems appropriate, unless directed otherwise", citing the following observations by Mason J in Peko Wallsend Limited at 41:
It follows that, in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power…
47 It is to be noted that the general principle outlined by Mason J in that passage is stated to be subject to an express exception in circumstances where there is a statutory indication of the weight to be given to various considerations. Although the Direction is silent on whether there needs to be a cumulative consideration of relevant matters, it does contain express statements relating to the weight to be attached to particular considerations. In particular, as noted above, paragraph 11(2) provides that, while "other considerations" need to be taken into account where relevant, generally they are to be given less weight than is the case with primary considerations. That is the sort of qualification which Mason J seems to have had in mind when he stated the general principle in Peko-Wallsend.
48 For the following reasons, we agree with the primary judge's conclusion in [46] of his reasons to the effect that, when the Senior Member referred in [86] of her reasons to "all other considerations", she was referring to both relevant primary considerations (as set out in paragraph 10 of the Direction) as well as relevant "other considerations" (as set out in paragraph 11 of the Direction), and that she weighed all those considerations cumulatively, but found they were insufficient to outweigh what his Honour described as "the overriding consideration of harm to the Australian community".
49 First, it is to be noted at the outset that the two emphasised sentences in [85] and [86] of the Tribunal's reasons for decision, as set out in paragraph 30 above, appear under the heading: "BALANCE OF CONSIDERATIONS". The paragraphs appear toward the end of the Senior Member's reasons and, self-evidently, were intended to record her core conclusions and essential reasoning for affirming the delegate's decision to cancel Mr Baker's visa. More detailed reasons were set out sequentially earlier in the Senior Member's decision by reference to each of the relevant primary and other considerations. In our view, it was convenient for those matters to be dealt with in that fashion and no legal error has been established in adopting that sensible and practical approach. In the final section of the Tribunal's reasons for decision, the Senior Member effectively draws together the various elements of her reasoning and analysis in explaining why Mr Baker's application for review failed.
50 Secondly, the sentence we emphasised in [85] of the Tribunal's reasons, when read in its context, indicates that the Senior Member weighed all relevant primary considerations cumulatively against the primary consideration of protecting the Australian community from harm. Furthermore, we agree with the primary judge that the Tribunal's statement in [86] of its reasons, which records the Senior Member's satisfaction that the degree of unacceptable risk posed by the appellant to the Australian community "outweighs all other relevant considerations", indicates that the Tribunal also cumulatively weighed all those other relevant considerations against that matter, whether they were "primary considerations" or "other considerations". The position might be different if the Senior Member had referred to "all the other considerations", as that would indicate that she was confining this part of her reasoning to the "other considerations" as set out in paragraph 11 of the Direction. But that is not the language she used.
51 Thirdly, it is to be noted that the Senior Member's reference in [86] of her reasons to the degree of unacceptable risk outweighing all other considerations appears immediately before the final sentence in that paragraph expressing her ultimate conclusion against exercising the discretion under s 501 of the Act in Mr Baker's favour. When the paragraph is read as a whole, it seems to us that the primary judge was correct in giving a broad meaning to the phrase "all other considerations" as encompassing both relevant primary and relevant other considerations because it is clear that the Senior Member's ultimate conclusion turned on her cumulative assessment of both those categories of consideration.
52 Fourthly, we consider that some further limited support for that reading of [86] of the Tribunal's reasons is provided by the Senior Member's express acknowledgement in [7] of her reasons, where she accepted that there was an obligation upon a decision-maker to take into account both primary considerations and other considerations where relevant.
53 We do not see any error in the primary judge's description of harm to the Australian community as an "overriding consideration". We do not consider that his Honour intended by the use of the word "overriding" to suggest that harm to the Australian community must always be given primacy over the other three primary considerations set out in the Direction. Rather, his Honour used that expression to reflect his assessment that the Tribunal regarded that primary consideration to be overriding in the particular circumstances of this case when weighed with all other relevant considerations.
54 As to the appellant's second ground of appeal, which claims that the primary judge erred in concluding that the Tribunal had correctly applied a particular passage from Teoh, the appellant clarified during the course of the hearing before us that this ground was intended to be in the alternative to the first ground of appeal. As we understood the argument, the appellant contends that the primary judge erred in not finding that the Tribunal had misapplied Teoh by not viewing the best interests of the appellant's children as the starting point for the task of determining whether the appellant's visa should be cancelled.
55 We consider that the second ground of appeal should be rejected for the following two reasons. First, it fails to appreciate the legal significance of the Direction. As noted above, the Direction imposes binding requirements on relevant decision-makers. The Direction post-dates Teoh. If there is any inconsistency between the Direction and any passage in Teoh, the Direction necessarily prevails. In our view, while the Direction identifies the best interests of a child as potentially being a primary consideration, it does not elevate that matter above the other primary considerations in paragraph 10.
56 Secondly, and in any event, we consider that the appellant misstates the effect of the observations of Mason CJ and Deane J in Teoh at 292 as set out in [33] above. We respectfully agree with the following analysis by Tracey J of this aspect of Teoh in Basile v Minister for Immigration and Citizenship (2011) 193 FCR 329 at [46]:
Teoh does not require that the best interests of Mr Basile's children must be given temporal primacy over the other three primary considerations which are identified in the Direction. The case stands for the proposition that, by ratifying the United Nations Convention on the Rights of the Child 1989, done at New York on 20 November 1989 (the Convention), the Australian government has represented that it will act conformably with the terms of the Convention. One of its Articles provided that, in all actions concerning children, administrative authorities of the State would ensure that "the best interests of the child shall be a primary consideration" (emphasis added). Although the Convention had not become part of domestic law, its ratification gave rise to a legitimate expectation that administrative decision-makers would comply with it and would not fail to do so without first affording an affected person the opportunity to argue that the decision-maker should treat the interests of a child as a primary consideration. It was not held that an Australian administrative decision-maker must always accord primacy to the interests of any relevant child much less that such a consideration must be brought into account before any other considerations are selected and weighed by the decision-maker.
57 For all these reasons, the appeal should be dismissed and the appellant ordered to pay the first respondent's costs.
I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Nicholas, Yates and Griffiths.