The other considerations
21 Clause 2.17 of Direction No. 21 provides relevantly as follows:
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 generally they be given less individual weight than that given to the primary considerations. These other considerations may include:
(a) the extent of disruption to the non-citizen's family, business and other ties to the Australian community;
· "Article 23.1 of the International Covenant on Civil and Political Rights (ICCPR) provides that::
"The family is the natural and fundamental group unit of society, and is entitled to protection by society and the State."
...
(c) the degree of hardship which would be caused to immediate family members lawfully resident in Australia (including Australian citizens), including whether the immediate family members are able to travel overseas to visit the non-citizen, the nature of the relationship between the non-citizen and the immediate family members, whether immediate family members are in some way dependant on the non-citizen for support which cannot be provided elsewhere;
(d) family composition of the non-citizen's family, both in Australia and overseas;
...
(j) the purpose and intended duration of the entry to or stay in Australia, including any significant compassionate circumstances; and
(k) the fact that a non-citizen has been formally advised in the past by an officer of the Department of Immigration and Multicultural Affairs about conduct which brought him or her within the deportation provisions at section 200/201 of the Act or the visa refusal and cancellation provisions at section 501.
22 Under the heading "OTHER INTERNATIONAL OBLIGATIONS", cl 2.18 of Direction No. 21 provides:
Where relevant, decision-makers are required to consider the international obligations contained in this section.
23 In cl 2.19, there is reference to the International Covenant on Civil and Political Rights ("ICCPR"), particularly to Art 6 (right to life), Art 7 (freedom from torture and cruel, inhuman or degrading treatment or punishment) and to the Second Optional Protocol to the International Covenant on Civil and Political Rights, which concerns the death penalty. Clause 2.20 refers to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. In cl 2.22, there is reference to the Convention Relating to the Status of Refugees and the Protocol Relating to the Status of Refugees. Clause 2.24 provides:
Notwithstanding international obligations, the power to refuse or cancel must inherently remain a fundamental exercise of Australian sovereignty. The responsibility to determine who should be allowed to enter or to remain in Australia in the interests of the Australian community ultimately lies within the discretion of the responsible Minister.
24 What the Tribunal said in [63] of its reasons for decision, in relation to the factors set out in cll 2.17 to 2.24 of Direction No. 21, has been set out in part in [15] above. The Tribunal then discussed the specific issue of hardship to the appellant's immediate family members, referring to possible hardship to Jedi, "already canvassed above". It also discussed other specific factors.
25 Counsel for the appellant argued that there were three other considerations that were relevant, and were therefore required by Direction No. 21 to be taken into account by the Tribunal, but were ignored. The first of these was international obligations under Arts 23 and 24 of the ICCPR and Arts 5, 9 and 10 of the Convention on the Rights of the Child. The argument was that the Tribunal should have considered obligations concerning the unity of the family under the ICCPR and the rights of Jedi under the Convention on the Rights of the Child, either under cl 2.17(a) or 2.18 of Direction No. 21. The second matter that counsel for the appellant argued the Tribunal was required to take into account was hardship to the appellant himself by loss of contact with his son Jedi. This was said to be relevant under cl 2.17(a). The third consideration was that the appellant had not been formally advised prior to his offences by an officer of the relevant department that particular conduct may bring him within the cancellation provisions of s 501 of the Migration Act.
26 The primary judge's reasoning on these issues is found in [50]-[53] of his Honour's reasons for judgment:
The direction lists a number of matters under the heading "Other Considerations". The direction states that these are matters which "may be relevant". The list of matters is not exhaustive. It seems to me that the terms of the direction are such that it is primarily up to the decision-maker to determine if any of the listed matters or, indeed, any other matter is relevant in a particular case. The Tribunal member said that the matters in paragraphs 2.17 to 2.24 inclusive of the direction were largely not relevant to the applicant's situation. The Tribunal member considered the effect on the applicant's family noting that other than Jedi who he had already considered, the applicant's immediate family resided in the United States. He considered the applicant's business ties to the Australian community and he said that he was not satisfied that the applicant's association with Mr Courtney would give rise to any serious or ongoing offer of employment. He referred to his previous discussion about the applicant's rehabilitation and his conduct since his incarceration. That is a matter referred to in the direction (paragraph 2.17(h)). It is clear that the Tribunal member has considered the matters in clause 2.17.
The Tribunal member also considered the matters appearing in the direction under the heading "Other International Obligations". His conclusion was that there was no suggestion that if the applicant was returned to the United States "he would be placed in a situation where relevant rights under international obligations would be violated".
I do not think the Tribunal member was obliged to consider the International Covenant on Civil and Political Rights or the Convention on the Rights of the Child either at all, or in the case of the Covenant, any further than he did. It must be remembered that he gave careful consideration to the interests of Jedi and he considered the position of the applicant's immediate family.
I do not think the Tribunal member was bound to consider hardship to the applicant himself. It is possible that in any event he did so when considering the best interests of Jedi, but even if he did not, he did not err in law in not doing so. Nor do I think the Tribunal member erred in not considering the absence of a prior warning. The fact that prior warning has been given may be relevant (paragraph 2.17(k)), but the absence of a prior warning is either irrelevant or, at most, a consideration of only permissive, not mandatory character.
27 In Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-41, Mason J summarised the law relating to a challenge to an administrative decision on the ground that the decision-maker has failed to take into account a relevant consideration, in the following propositions:
(a) The ground of failure to take into account a relevant consideration can only be made out if a decision-maker fails to take into account a consideration which he is bound to take into account in making that decision...The statement of Lord Greene M.R. in Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation, that a decision-maker must take into account those matters which he "ought to have regard to" should not be understood in any different sense in view of his Lordship's statement on the following page that a person entrusted with a discretion "must call his own attention to the matters which he is bound to consider".
(b) What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion. If the statute expressly states the considerations to be taken into account, it will often be necessary for the court to decide whether those enumerated factors are exhaustive or merely inclusive. If the relevant factors - and in this context I use this expression to refer to the factors which the decision-maker is bound to consider - are not expressly stated, they must be determined by implication from the subject-matter, scope and purpose of the Act. In the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject-matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard...By analogy, where the ground of review is that a relevant consideration has not been taken into account and the discretion is unconfined by the terms of the statute, the court will not find that the decision-maker is bound to take a particular matter into account unless an implication that he is bound to do so is to be found in the subject-matter, scope and purpose of the Act.
(c) Not every consideration that a decision-maker is bound to take into account but fails to take into account will justify the court setting aside the impugned decision and ordering that the discretion be re-exercised according to law. A factor might be so insignificant that the failure to take it into account could not have materially affected the decision...
(d) The limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind. It is not the function of the court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator. Its role is to set limits on the exercise of that discretion, and a decision made within those boundaries cannot be impugned.
28 For the purpose of applying these principles, it is necessary to examine any direction given under s 499 of the Migration Act, in order to determine what are the considerations that the decision-maker is bound to take into account. Such a direction is made with statutory authority, and it is tabled for consideration by both Houses of Parliament, pursuant to s 499(3). There is no doubt from cl 2.1 of Direction No. 21 that the considerations that are specified in Direction No. 21 are considerations that a decision-maker is bound to take into account. The terms of cl 2.1 make that clear, when they say "decision-makers must have regard to the following considerations". Clause 2.17 is in different terms, however. It recognises that other matters "may be relevant." It provides that "where relevant, it is appropriate that these matters be taken into account". It provides a list of possible relevant considerations that is not exhaustive. Mason J's adoption of the statement of Lord Greene MR in proposition (a) makes it clear that, in such a situation, the task of determining what is relevant is left to the person obliged to exercise the discretion. This is what the primary judge meant when he said at [50] that it is primarily up to the decision-maker to determine if any of the listed matters, or any other matter, is relevant to a particular case. The senior member did make such a determination, albeit largely in general terms.
29 In the light of the Tribunal's findings, expressed in [62] of its reasons for decision, that there was no established relationship between Jedi and the appellant at the time of the Tribunal's decision, and that the prospects of the appellant developing a close relationship with Jedi in the future were doubtful, it is hardly surprising that the Tribunal did not consider the provisions of the ICCPR relating to protection of the family to be relevant to the exercise of its discretion. In no sense other than a purely biological one could it have been said that the appellant and Jedi constituted a family. The breakdown of the relationship between the appellant and Ms Fraser, documented in the Tribunal's reasons for decision, could only have led to the conclusion that there was no family of which it could be said that the appellant and Ms Fraser were members. Further, the Tribunal's consideration of the best interests of Jedi had led it to conclude that it was in those best interests that the visa be cancelled, with the result that the appellant would be removed from Australia and there would be no realistic possibility of the development of any true family relationship between him and Jedi. On the basis of these findings, there was no occasion for the Tribunal to consider whether removing the appellant from contact with Jedi would infringe any right that Jedi may have had under the Convention on the Rights of the Child.
30 In relation to hardship to the appellant himself, it is by no means clear that the appellant put to the Tribunal any substantial evidence or argument to the effect that he would suffer hardship if he were to lose contact with Jedi. In the course of a 42-page summary of facts, issues and contentions submitted to the Tribunal, the appellant could only manage to say, at para 470, that he "would suffer tremendous emotional hardship if he were ripped away from his son" and, at para 519, that "the hardship he will endure if ripped away from his child and life here in Australia will be insufferable." The Tribunal referred to this document in general terms at [64] of its reasons for decision. In a statutory declaration, made on 31 August 2006, the appellant told the Tribunal, in the context of dealing with his financial ability to care for Jedi, that he would be forced to take a low-paid job in the United States, after declaring his Australian convictions. A report of a consultant forensic psychologist, considered by the Tribunal, referred to the appellant's concern for his infant son as reinforcing his desire to remain a contributing member of the Australian community, and to his fear that his absence would result in a repeat of history, in terms of his own lack of contact with his father during his formative years. In a letter dated 1 April 2004, prior to the delegate's decision, the appellant referred to his incarceration and deprivation of liberty, and to "an additional punitive judgement of permanent separation from my family, friends, children whose lives I am involved in, community and business interests", describing this punishment as the equivalent of kicking a man while he is down, and pouring salt on wounds. In the same document, he suggested that the mental anguish engendered by the permanent dissolution of his marital and family unit, caused by a deportation order, as of "such significant magnitude as to be defined as torture". In a statutory declaration dated 25 August 2006, addressed to the then Minister for Immigration and Indigenous and Multicultural Affairs, the appellant said that, if he did not get the chance to raise his son, three people would suffer, being his son, himself and his son's mother, who would be forced to raise his son with two other boys on her own. In the same document, he referred to the fact that anti-depressant medicine had been prescribed for him, "as the thought of losing my son can sometimes bee [sic] too much." Finally, in the course of his closing submissions in the Tribunal hearing, the appellant referred to the hurt that would be caused to both himself and his son, if he were to be removed. The senior member invited him to explain the proposition that he would suffer hurt if removed to the United States. The appellant referred to the hurt as "psychological", and began to describe suffering depression while in the detention centre. The minister's representative objected to the submission, on the ground that the matters to which it related were not matters the subject of evidence.
31 Counsel for the appellant did not refer the Court to any other document, or transcript of evidence, in which any evidence or submission of hardship to the appellant was put before the Tribunal. Any evidence and submissions in support of the proposition that the appellant would suffer hardship is therefore vague, and is usually found in the context of assertions of hardship to others, particularly Jedi. It is difficult to see how the Tribunal could come to the conclusion that hardship to the appellant was a relevant factor, appropriate for it to take into account under cl 2.17 of Direction No. 21. The specific mention in cl 2.17(c) of hardship to immediate family members lawfully resident in Australia tends to make it doubtful that hardship to the person cancellation of whose visa is being considered would be regarded as a relevant matter, at least in most cases. It must be assumed that the cancellation of a visa of a person who opposes that cancellation would cause that person hardship in any event. Unless a case of specific hardship were put before the decision-maker, it can hardly be expected that the decision-maker would take into account such a general consideration. To the extent to which hardship to the appellant by separation from Jedi is implicit in the cancellation of the appellant's visa, it is important that Direction No. 21 only makes specific reference (in the circumstances of this case) to hardship to Jedi. It is at least implicit in the Tribunal's finding that the prospects of the appellant and Jedi developing a close relationship were doubtful that the Tribunal's view was that the appellant's removal to the United States would make no significant difference to his relationship with Jedi, and therefore to any detriment he suffered from the absence of a such a relationship.
32 The absence of a warning to the appellant that his conduct, if continued, would be likely to lead to a cancellation of his visa under s 501(2) could not have been a relevant consideration in the circumstances of the present case. It is at least arguable that the absence of a warning would not be a relevant consideration in any case, given the express reference in cl 2.17(k) to the appropriateness of taking into account the fact that a warning had been given. It is unnecessary to decide that question. The present case is not one in which the appellant had accumulated his criminal record by a series of convictions over a period, so that it would have been possible for a warning to be given to him that, if he persisted in engaging in criminal conduct, he would be liable to have his visa cancelled under s 501(2). The appellant was convicted of a number of offences on the one date. There was simply no scope for any official warning of the type contemplated by cl 2.17(k) of Direction No. 21.
33 In any event, it must be said that, if any of the three considerations on which counsel for the appellant relied was a consideration to which the Tribunal ought to have had regard, each was of such slight relevance as to give rise to the application of Mason J's proposition (c). Each was so insignificant that the failure to take it into account could not have materially affected the decision. Bearing in mind the limited role of a court reviewing the exercise of an administrative discretion, as Mason J said in proposition (d), the Court ought not to set aside a carefully considered decision of the Tribunal, such as the one in the present case, on the basis of such abstract factors as the three considerations on which counsel for the appellant relied.
34 The appellant has failed to demonstrate that the primary judge erred in rejecting the proposition that the Tribunal was required to take into account, and had not taken into account, the provisions of the ICCPR relating to the family, the Convention on the Rights of the Child, hardship suffered by the appellant from loss of contact with his son or the absence of any warning to the appellant that if he committed serious offences he may jeopardise his visa.