Arguable grounds of appeal
30 The applicant contends that the Tribunal was required by cl 7(1)(b) to consider a particular question and to follow a particular balancing process.
31 The question that the Tribunal was required to consider was whether the risk of future harm by the applicant was "unacceptable". However, the applicant contended that cl 7(1)(b) also mandated the manner in which that question must be considered. It "requires a balancing exercise". This involved consideration of three matters: the likelihood of any future harm, the extent of the potential harm should it occur and the extent to which, if at all, any risk of future harm should be tolerated by the Australian community.
32 North J in Williams said at [43] that:
[T]he process of considering and weighing the primary and other considerations [in cll 9 and 10] does not necessarily produce an answer to the relevant question [in cl7(1)(b)]…
The Tribunal by cl 7(1)(a) was required to take into account the primary and other considerations. That was not in doubt. Further, cl 8 provided some guidance as to how the Tribunal should decide what weight to give to those considerations for that purpose. But as the applicant argued before me, the Tribunal nevertheless was also required to answer the particular question in cl 7(1)(b) and to do so in a manner that accorded with the express balancing exercise referred to in cl 7(1)(b).
33 In Williams v Minister for Immigration and Border Protection (2014) 142 ALD 76; [2014] FCA 674 at [41], Mortimer J described cl 7(1)(b) as "specify[ing] the ultimate task to be performed by the decision-maker in exercising the discretion."
34 Now, the analysis of North and Mortimer JJ on cl 7(1)(b), its scope and its significance does not appear to be free of controversy.
35 Buchanan J in Minister for Immigration and Border Protection v Lesianawai [2014] FCAFC 141 (Lesianawai) disagreed (at [43]) with Mortimer J's characterisation. At [41], he made the following observation:
41. In my view, the requirement in cl 7(1)(b) to determine whether the risk of future harm is unacceptable, which is to be made by balancing factors which are all mentioned in cl 9.1, does not signify that the conclusion about that issue is determinative, or that the evaluation then directed by cl 8 is in any way altered…
36 The Minister made a submission before me to the effect that Perry J had in substance agreed with Buchanan J in Lesianawai. I am not so convinced. Perry J did not expressly agree with [41] of Buchanan J's reasons. But I do note that at [73] of Perry J's reasons, she did agree with Buchanan J's reasons at [67], which had some resonance with what his Honour said at [41].
37 On one view, it might be said, as the applicant has said here, that Buchanan J's observations may also be in tension with North J's observations in Williams. North J formed the view that merely to consider and weigh up the factors in cll 9 and 10 would not necessarily produce the answer to the question in cl 7(1)(b). The applicant contends that the emphasis given to cl 7(1)(b) by North J and perhaps supported by Mortimer J is to be preferred.
38 If the construction favoured by North J is correct and cl 7(1)(b) mandates that a particular question is to be answered in a particular manner and through a different exercise than merely weighing up the factors in cll 9-10, then the question is whether the Tribunal in the present case has complied with that requirement. The applicant has argued that the Tribunal failed to appreciate or undertake that specific exercise.
39 The Minister before me contended that Williams (before North J) was a case where the Tribunal did not even ask itself the correct question, whereas it was said that in the present case the Tribunal did ask itself the correct question. I am not so convinced. True it is that the Tribunal referred to cl 7(1)(b) (see at [10]). But it is arguable that the Tribunal never properly engaged with the specific task required under cl 7(1)(b). It may not have understood the precise task required of it under cl 7(1)(b). It is reasonably arguable that it did not so appreciate. True it is that the Tribunal's reasons are replete with references to the risk of future harm and its unacceptability. And of course provisions such as cl 9.1.2 refer to this. But cl 7(1)(b) required the expressed three elements that I have referred to earlier to be considered and required those elements to be taken into account and balanced through the lens of cl 7(1)(b). In my view, it is reasonably arguable that [82] and [86] of the Tribunal's reasons suggest that the Tribunal did not specifically engage with such a task.
40 The applicant contends more specifically that the Tribunal did not grapple with the particular evaluative question concerning the Australian community, as distinct from the applicant, which the Tribunal was required to consider. Putting it slightly differently, what the Tribunal was required to consider was to what extent the Australian community should tolerate a risk of future harm. The applicant describes this as an evaluative question. I agree with that description. Moreover, it is not an answer, arguably, which is necessarily arrived at by generally weighing up the factors identified in cll 9-10. I should say that the passage in cl 9.1.2(1) "the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases" is only a theoretical statement and not the issue that needs to be expressly addressed in relation to the applicant, which is set out as the last consideration in cl 7(1)(b). The Tribunal did make findings to the effect that the risk of future harm was unacceptable (see for example [23], [28], [44], [82] and [86]). But, as the applicant describes it, in one sense those references were in answer to the headline question in cl 7(1)(b), but not necessarily an answer given following the approach of the particular balancing process described in cl 7(1)(b).
41 The applicant has argued that Gordon J erred by treating cl 7(1)(b) as identifying only a particular mandatory question, and that she ought to have found that it also prescribed a mandatory process of consideration of that question. It would seem that the applicant accepts that the Tribunal identified the correct question, but says that it did not address or answer the question in the required manner.
42 In my view, I cannot say that the applicant's contentions are not reasonably arguable.
43 Second, the applicant contended that, contrary to the reasoning of Gordon J, the proposition that the Tribunal had not engaged in the requisite balancing exercise is reinforced rather than diminished by the repeated findings that the risk of harm is "unacceptable". In [23], [28], [44] and [82] of the Tribunal's reasons, such a finding is expressed to follow simply as a result of the applicant's past criminal conduct. But the applicant contends that it is not open to the Tribunal to make a conclusion about the "unacceptability" of risk of harm divorced from consideration of any countervailing considerations, and without considering whether the relevant risk "should" be tolerated by the Australian community. The existence of the "principle" in cl 6.3 of the Direction says nothing to the contrary. Clause 6.3 indicates that in "some circumstances" involving past criminal conduct, even "strong countervailing considerations" may be insufficient to "justify not cancelling … a visa". But it is argued that such countervailing considerations must first be considered before they can be rejected as insufficient having regard to the particular balancing process prescribed by cl 7(1)(b).
44 Again, in my view I cannot say that the applicant's contention is not reasonably arguable.
45 The Minister has contended that the applicant has identified paragraphs in the Tribunal's reasons in isolation from the entirety of the Tribunal's consideration, and that the reasons of the Tribunal should be read as a whole and not too fastidiously or over-zealously scrutinised (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271- 2 per Brennan CJ, Toohey, McHugh and Gummow JJ). This statement of principle is accepted, but I am not convinced that the applicant has fallen into the vice contended for by the Minister.
46 The Minister has also contended that the reasons of the Tribunal are entitled to a "beneficial" construction. I accept such a proposition in its generality, but so to do does not deny that the applicant's arguments are reasonably arguable.
47 Third, the applicant contended that the Tribunal's finding in [86] ought to be read in the context of its repeated findings to the same effect, but which are arguably divorced from consideration of any of the countervailing factors. The applicant accepts that there is no statutory obligation on the Tribunal to record its findings or structure its statement of reasons in any particular way. However, a Court may seek to glean from the way in which the Tribunal has expressed its reasons, whether the Tribunal has complied with the mandatory requirements of the legislative scheme in making its decision. The applicant submits that the better view of [86] is that the Tribunal has not complied with the mandatory requirements of cl 7(1)(b).
48 Again, this seems to me to be a position that is reasonably arguable.
49 Fourth, the applicant contended that insofar as Gordon J had rejected the notion that the Tribunal might be required to "consider a fact or matter under cl 7(1)(a) and then separately consider that fact or matter… again", then her Honour was not correct. The Minister has directed the Tribunal to comply with two separate requirements in cl 7. Under cl 7(1)(a) there must be a consideration of the matters set out in Pt A of the Direction, which embraces cll 9 and 10. But under cl 7(1)(b) there is to be a further consideration through an associated lens, where some of the matters dealt with in Pt A have to be looked at again and through the calculus stipulated in cl 7(1)(b). It would seem that the structure and text of cl 7(1) requires separate consideration of the relevant matters both under cl 7(1)(a) and then separately under cl 7(1)(b). Further, as North J pointed out, conceivably looking at cll 9 and 10 and taking those matters into account for the purposes of cl 7(1)(a) might produce an answer different to that produced by considering a narrower subset of those considerations for the purposes of answering the inquiry set out in cl 7(1)(b).
50 Again, I cannot say that the applicant's contention is not reasonably arguable.
51 In summary, the applicant submits that the Tribunal's decision was infected with jurisdictional error. Accordingly, the applicant contends that her Honour also was in error for failing to so find.
52 In my view, the applicant has put forward reasonably arguable points to support his position. Moreover, given that there appears to be differing approaches (or at least emphases) between various judges of this Court as to the particular balancing approach identified in and required by cl 7(1)(b) and its significance to the exercise of the relevant discretion, that reinforces my view that the applicant's arguments warrant further consideration on appeal.