Consideration
32 According to the preamble to Direction No 55, the Direction contains "General Guidance for decision-makers and the Principles that provide a framework within which decision-makers should approach their task of deciding whether to exercise the discretion to cancel or refuse a person's visa under section 501". Despite this, Direction No 55 is, at numerous points, obscure, possibly inconsistent and, generally speaking, difficult to comprehend. We therefore noted with interest that, as advised by counsel for the Minister, Direction No 55 has now been revoked and replaced by a new Direction under s 499 of the Act.
33 At the time of the Tribunal's decision, however, cl 7(1)(b) of Direction No 55 required the Tribunal to determine whether the risk of future harm by a non-citizen is unacceptable. There can be no doubt that the Tribunal in fact made this determination. At paragraph [82] of its reasons for decision, it stated:
I find that Mr Contreras presents an unacceptable risk to the Australian community should he remain in this country. Should he resume his violent reoffending, any risk of that occurring is unacceptable. …
34 At paragraph [86], it further stated:
I find that the protection of the Australian community outweighs all of the other considerations which support Mr Contreras remaining in Australia. That is because of the nature and the seriousness of his offending and the consequences on the Australian community should he re-offend. His remaining in Australia poses an unacceptable risk. …
35 Earlier, having referred to cll 9 and 10 of Direction No 55, the Tribunal also stated:
"I also accept the Minister's contention that Mr Contreras' conduct is of a nature and extent which presents an unacceptable risk of harm to the Australian community" (reasons at [23]).
"Having unlawful access to firearms is of grave concern in this case. In fact, the harm which could be caused if his conduct were repeated is so serious that any real risk that it may be repeated would be unacceptable" (reasons at [28]).
"In my opinion, the evidence supports th[e] contention [that the consequences of Mr Contreras reoffending are extremely grave] and I find that any risk of him re-offending is wholly unacceptable to the Australian community" (reasons at [44]).
36 We accept that cl 7(1)(b) requires a balancing exercise to be undertaken, which involves consideration of the three components to which cl 7(1)(b) refers. As noted, the appellant's argument on appeal is that the Tribunal did not make its determination in the right way, because it did not include, in the requisite balancing exercise, consideration of "the extent to which, if at all, any risk of future harm should be tolerated by the Australian community". Notwithstanding the excellent advocacy of pro bono counsel, we reject this proposition, for the following reasons.
37 First, the Tribunal clearly understood its fundamental task. Thus, at paragraph [6] of its reasons, it stated:
The only question which I am required to resolve is whether the discretion to cancel Mr Contreras' visa should be exercised. In doing so, I must comply with written directions made by the Minister (s 499(2A) of the Migration Act). The current directions made by the Minister on 28 July 2012 are known as Direction No 55 (the Ministerial Direction).
38 Second, the Tribunal expressly and very clearly recognised what Direction No 55, and in particular cl 7(1)(b), required, stating at paragraph [10]:
Informed by the Principles to which I have referred above, I must take into account, in this case, the considerations in Part A of the Ministerial Direction. I am also required to determine whether the risk of future harm by a non-citizen is unacceptable. As is stated in paragraph 7(1)(b) of the Ministerial Direction: This requires a balancing exercise, involving a consideration of 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.
(Italics original)
The italicisation highlights the "balancing exercise" that the Tribunal was required to undertake and the Tribunal's recognition that it was to adopt this process in determining whether the risk of future harm by the appellant is unacceptable.
39 In this case, to accept the appellant's contention, we would need to be persuaded that, although the Tribunal knew what cl 7(1)(b) required, it nonetheless did not act in conformity with cl 7(1)(b). As the appellant observed, it does not follow merely from the fact that the Tribunal correctly stated what was required of it that the Tribunal in fact did what it was required to do. Had the Tribunal stated its task incorrectly, however, that would be strongly indicative of error. Conversely, the correct statement of its task under cl 7(1)(b), with consistent reasoning, would support an inference that there was no error on the Tribunal's part.
40 We accept that the Tribunal did not state expressly that, having undertaken a balancing exercise involving a consideration of 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, it determined that the risk of future harm by the appellant is unacceptable. Nor did the Tribunal in terms make a finding about "the extent to which, if at all, any risk of future harm should be tolerated by the Australian community" (emphasis added). But when the Tribunal's reasons are considered as a whole and "in a practical and realistic manner" (to quote Flick J in Salahuddin v Minister for Immigration and Border Protection (2013) 140 ALD 1 (Salahuddin) at 7 and 8 [22]), we consider it tolerably clear that the Tribunal undertook the requisite balancing exercise. Whilst the Tribunal made no express finding in normative terms about the community's tolerance of any risk of future harm, the Tribunal's consideration of this component of the balancing exercise is readily inferred from the Tribunal's reasons, considered in their entirety and having regard to the whole of Direction No 55.
41 At various points, the provisions of Direction No 55 overlap or flow into one another. Thus, by virtue of cl 6.3(3), the Tribunal was required to bear in mind that "[i]n some circumstances, criminal offending … and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa". This principle apparently informs the Tribunal's finding in the last sentence of paragraph [28] of its reasons and is also relevant to the determination and the balancing exercise in cl 7(1)(b). Thus, the Tribunal said in this paragraph:
There cannot be any doubt about the fact that should Mr Contreras engage in similar criminal conduct in the future, the nature of the harm that could be suffered by individuals or the Australian community is extremely serious. Upon release from prison, should Mr Contreras resume his drug habit, which would most likely lead to drug trafficking given that his opportunities for full time employment following release appear to be remote, it is foreseeable that he would once again arm himself for protection as he claimed he did in the past. Having unlawful access to firearms is of grave concern in this case. In fact, the harm which could be caused if his conduct were repeated is so serious that any real risk that it may be repeated would be unacceptable.
42 Similarly, cl 9 set out a number of primary considerations that the Tribunal was required to consider, including protection of the Australian community from criminal or other serious conduct. Such matters were also relevant to the determination and the balancing exercise in cl 7(1)(b). By virtue of cll 9.1 and 9.1.1, the Tribunal was in this context to consider the nature and seriousness of the conduct in question; and, under this heading, by virtue of cl 9.1.1(f), "[t]he frequency of the person's offending and whether there is any trend of increasing seriousness". With this clearly in mind, the Tribunal stated at paragraph [23]:
Furthermore, the Ministerial Direction provides that the frequency of a person's offending and whether there is any trend of increasing seriousness is a factor to be taken into account. Ms Graham submitted that in the 13 years prior to being taken into prison for his most recent and most serious offence, the longest period that Mr Contreras had gone without offending was two years. She also submitted that a number of those offences were committed while serving out sentences for prior offending. I agree with that submission because that is what Mr Contreras' criminal record discloses. Furthermore, I agree that the seriousness has increased, particularly because Mr Contreras has obtained firearms on more than one occasion since about 2004. That evidence not only discloses that Mr Contreras has the ability to obtain such a weapon, but also that he is prepared to use it. That, of course, is a serious concern should Mr Contreras remain in Australia. I also accept the Minister's contention that Mr Contreras' conduct is of a nature and extent which presents an unacceptable risk of harm to the Australian community. It is a very significant factor in the exercise of the Minister's discretion.
43 The Tribunal's statements in paragraph [44] also reflect the matters with which cll 9.1, 9.1.1 and 9.1.2 are concerned, including the risk to the Australian community should the person commit further offences. By virtue of cl 9.1.2, the Tribunal was bound to have regard "to the principle that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable". These clauses clearly overlap with what is required under cl 7(1)(b). At paragraph [44] of its reasons, the Tribunal stated:
The Minister also contended that due to the extent and seriousness of the crimes committed by Mr Contreras and in particular the numerous violent offences involving use of a weapon including firearms, the consequences of him reoffending are extremely grave. In my opinion, the evidence supports that contention and I find that any risk of him re-offending is wholly unacceptable to the Australian community.
44 We infer from the Tribunal's analysis, including its earlier remarks mentioned above, that the Tribunal considered cl 6.3(3) applicable in the appellant's case: see [41] above. Further, bearing in mind the statement of principle in cl 6.3(3), it can readily be inferred that the last sentence of paragraph [44] of the Tribunal's reasons addresses the Australian community's tolerance for the risk of future harm, as it was required to do in cl 7(1(b), as well as the matters with which cll 9.1, 9.1.1 and 9.1.2 were concerned. Although not expressed in normative terms, the normative factor of the kind to which cl 7(1)(b) directed attention is encapsulated in the generality of the last sentence of paragraph [44] and, indeed, of paragraph [28] of the Tribunal's reasons. We infer from these paragraphs that the Tribunal went through what the appellant's counsel termed the "gateway" that cl 7(1)(b) prescribed before making the determination that the risk of future harm by the appellant is unacceptable. That is, the Tribunal in fact undertook a balancing exercise involving a consideration of 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 before reaching this conclusion.
45 As the appellant submitted, an administrative decision-maker's obligation to provide reasons is important for a number of reasons, including that the provision of reasons assists a court in performing its supervisory functions where it has jurisdiction to do so: see, for example, Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme (2003) 216 CLR 212, at 242 [105] (Kirby J). At the same time, as the primary judge acknowledged, it is well-accepted that the reasons of an administrative decision-maker must not 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" (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 (Brennan CJ, Toohey, McHugh and Gummow JJ).
46 Of course, it can sometimes be inferred from a failure to make a finding that the Tribunal did not regard such a finding as material to its decision, which may in turn indicate that there has been a failure to address the correct question or other jurisdictional error: see, for example, Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 331 and 332 [10] (Gleeson CJ); 338 [35], 340 [44] (Gaudron J); 346 [69] (McHugh, Gummow and Hayne JJ). For the reasons already outlined, we do not consider that this is such a case.
47 We consider that the present case is of the type described by French, Sackville and Hely JJ in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 at 641 [47] where it was said:
The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected.
48 Such an approach was also taken in Salahuddin at 6-8 [19] to [24] (Flick J, with Katzmann and Wigney JJ agreeing), where at 6 [19], Flick J said:
… These words of caution have oft been repeated: eg, Daniel v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 205 ALR 198 at [32] per Goldberg J; SZQMA v Minister for Immigration and Citizenship (2012) 127 ALD 305 at [39] per McKerracher J; MZYPA v Minister for Immigration and Citizenship (2012) 128 ALD 93 at [13] per Bromberg J; DZABK v Minister for Immigration and Citizenship [2013] FCA 328 at [11] per Flick J; Sauvao v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 827 at [36] per Cowdroy J. See also: Woolworths Ltd v Director of Liquor Licensing [2012] WASC 384 at [45] per E M Heenan J.
49 In the present case, the Tribunal gave careful and detailed reasons for its decision. In conformity with cl 7(1)(a) of Direction No 55, the Tribunal expressly considered all the considerations mandated by cl 9, so far as relevant to the appellant's situation, which included: protection of the Australian community, including the nature and seriousness of the conduct, and the strength, duration and nature of the appellant's ties to Australia (cll 9(1)(b) and 9.2), the best interests of children in Australia (cll 9(1)(c) and 9.3) and the international non-refoulement obligations (cll 9(1)(d) and 9.4). The Tribunal also expressly considered some other considerations in accordance with cl 10, such as the effect on the appellant's immediate family and impediments that the appellant may face if removed from Australia. As noted, in the course of its discussion, it made a number of findings relevant to cl 7(1)(b) of Direction No 55, some in the course of its consideration of cl 9.1.2, the substance of which overlapped with cl 7(1)(b).
50 As indicated already, cl 9.1.2 explained when the risk of future harm is unacceptable to the Australian community - which is also the focus of the determination to be made under cl 7(1)(b). It is in this context that the Tribunal's statement, in paragraph [82] of its reasons, under the heading "Weighing Up the Considerations", falls to be considered. In that paragraph, the Tribunal found that "Mr Contreras presents an unacceptable risk to the Australian community should he remain in this country". The Tribunal continued:
… Should he resume his violent reoffending, any risk of that occurring is unacceptable. According to the most recent assessment report which I had in evidence, made on 28 May 2013, Mr Contreras remains in the moderate risk category regarding violent recidivism. This risk will remain until such time as Mr Contreras has overcome his drug addiction. Although he is currently on a methadone program, he was detected as having used cannabis while in Fulham Correction Centre some 12 months ago.
51 The Tribunal's finding at paragraph [86] must also be read in light of its evidently careful consideration of the matters to which it had previously referred. Thus, the Tribunal expressly found that "the protection of the Australian community outweighs all of the other considerations which support Mr Contreras remaining in Australia". The Tribunal explained:
That is because of the nature and the seriousness of his offending and the consequences on the Australian community should he re-offend. His remaining in Australia poses an unacceptable risk. Despite having been warned on two prior occasions, in 2001 and 2005, that his continued offending would result in cancellation of his visa, it appears Mr Contreras has not stopped for one moment to consider what the effect might be on other persons, particularly his children.
52 Whilst it would have been preferable for the Tribunal in its conclusions to deal expressly with each of the three elements in the cl 7(1)(b) calculus, nonetheless the Tribunal's reasons manifest that it specifically and repeatedly directed its attention to the cl 7(1)(b) question, namely, whether there is an unacceptable risk of future harm if the appellant were to remain in Australia. We would infer from the Tribunal's discussion of the evidence that led it to answer this question affirmatively that the Tribunal considered the three matters to which cl 7(1)(b) directed its attention. In particular, having regard to cll 6.3(3), 9.1, 9.1.1 and especially 9.1.2, we would infer from those parts of the Tribunal's discussion to which we have referred that the Tribunal in fact considered the likelihood of any future harm, the extent of the future harm should it occur, and the extent to which, if at all, any risk of future harm should be tolerated by the Australian community.
53 We agree with the primary judge that the decision of North J in Williams 2013 is distinguishable from the present case. In Williams 2013, his Honour held that the Tribunal did not address the question whether the risk of future harm by the non-citizen was unacceptable, because the Tribunal only "made a passing reference" to cl 7 of the Direction and did not ask the question "whether the risk of future harm is unacceptable": see Williams 2013 at 311 [43]. The case before us is different because the Tribunal did much more than make "passing reference" to cl 7(1)(b); the Tribunal expressly acknowledged that it was required to determine whether there was an unacceptable risk of future harm and made this determination in the manner it was required to do.
54 We have not found it necessary in this case to resolve the apparent differences about the role of cll 7(1)(a) and (b) as expressed by Mortimer J in Williams 2014 on the one hand and Buchanan J in Lesianawai on the other. Further, as we noted above, Direction No 55 has now been revoked and replaced by another Direction.