4.3 Is the decision in Oluwafemi plainly wrong?
23 In Oluwafemi the applicant submitted that the Tribunal was required to determine the content of the primary considerations specified in Direction 65, including community expectations under cl 11.3(1), and was to do so by reference to the particular steps taken by the applicant to reform his behaviour: Oluwafemi at [35].
24 Justice Thawley rejected this submission, holding that it:
37. … is inconsistent with the general scheme of the Direction and the way the primary considerations operate. These parts of the Direction are statements as to what the expectations of the Australian community are for the purposes of determining whether the visa should be refused. It is not for the Tribunal to determine the expectations of the Australian community by reference to the applicant's circumstances or evidence as to what the expectations of the Australian community are. The Direction requires a decision-maker to assess each of the primary considerations as they apply to the circumstances of the applicant's case, and to weigh the various considerations against each other in order to reach a conclusion as to how the discretion should be exercised.
25 Similarly, his Honour rejected the applicant's submission that the Tribunal erred in failing to take into account the fact that the applicant's wife and minor child were also part of the Australian community and in failing to take their expectations into account, holding that:
47. Paragraph 11.3(1) of the Direction states, in effect, the Minister's policy as to the expectation of the Australian community - see: YNQY at [76] per Mortimer J … It is not the role of the Tribunal to make its own assessment of the expectations of the Australian community by taking into account the applicant's wife and minor child at parts of that community. That is not to say that the Tribunal was to ignore as irrelevant the interests of the applicant's wife and minor child.
26 In so holding Thawley J agreed with Mortimer J's views in YNQY at [76]-[77] (extracted below). In YNQY, the applicant also contended that the Tribunal had erred in failing to take into account the expectations of the Australian community in accordance with cl 13.3 of Direction 65. That clause is relevantly identical to cl 11.3 save that it deals with community expectations in the context of decisions on whether to revoke a mandatory visa cancellation as opposed to a decision to refuse to grant a visa. In rejecting the applicant's submission in that case, Mortimer J stated (in the passage relied upon in part by the Tribunal here) that:
76. In substance this consideration [in cl 13.3] is adverse to any applicant. As the Minister submits, it is inextricably linked to the other primary consideration of protection of the Australian community. In particular, the last two sentences of para 13.3 of the Direction suggest the "expectations" about which it speaks are expectations adverse to the position of any applicant who has failed the character test and been convicted of serious crimes. In this primary consideration as expressed (and despite the references earlier in the Direction to "tolerance") the Australian community's "expectations" are defined only in one particular way: namely, that the Australian community "expects" non-revocation where a person has been convicted of serious crimes of a certain nature. That is, this is not a consideration dealing with any objective, or ascertainable expectations of the Australian community. It is a kind of deeming provision by the Minister about how he or she, and the executive government of which he or she is a member, wish to articulate community expectations, whether or not there is any objective basis for that belief. That is the structure of this part of the Direction.
77. I do not consider that even if the applicant is correct to submit that the Tribunal did not undertake the task required of it by the Direction in relation to this consideration, he was deprived of a different outcome because of that failure. It was inevitable that this consideration would weigh against revocation: that is what it is intended to do (see Uelese [2016] FCA 348; 248 FCR 296 at [64]-[66]).
(emphasis added)
27 In my view, notwithstanding counsel's careful submissions, the applicant has not established that the decision in Oluwafemi and Mortimer J's reasoning in YNQY are plainly wrong and should not be followed.
28 First, as I have earlier mentioned, the applicant relied upon the decision of Bromwich J in Afu in support of his submission. However, with respect and as the Minister submitted, the decision in Afu is consistent with the reasoning in the passages from Oluwafemi and YNQY quoted above.
29 In Afu the applicant submitted that the Tribunal had fallen into jurisdictional error in making the following findings (as characterised by the applicant) without the support of logically probative evidence:
(1) in the case of violent transgressions, the Australian community would have less regard to the individual, err on the side of visa cancellation and want that person deported; and
(2) it would be preferable for the Australian community to see the applicant deported.
(Afu at [78]-[80])
30 These findings were said to be significant because the expectations of the Australian community were one of two considerations on the basis of which the Tribunal affirmed the delegate's decision not to revoke the mandatory cancellation of the applicant's visa under s 501(3A) of the Act. The Minister, however, submitted in Afu that:
81. … it is plainly unnecessary for the Tribunal to have evidence before it of the views of Australians before it can make findings as to what it considers to be the expectations of the Australian community in a given case. That is because the Tribunal, in common with the Minister or his delegate, is permitted to have regard to the expectations of the Australian community in the context of determining whether or not to revoke the cancellation of a non-citizen's visa. That, in turn, is because, quoting Djalic v Minister for Immigration [2004] FCA[FC] 151; 139 FCR 292 at [71]:
… the legislation is designed to protect the community from criminal or other undesirable conduct and to permit the Minister to give effect to what might loosely be described as community expectations that perpetrators of such conduct, should not be permitted to remain in Australia.
82. The Minister submits that Direction 65 provides the source of the Australian community's expectations when it comes to visa cancellations and revocation of visa cancellations.
31 Thus, the Minister submitted in Afu that, consistently with the Tribunal's findings, cl 13.3 provided that the Australian community expects non-citizens to obey Australian laws while in Australia and that non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that such a person should not hold a visa.
32 Bromwich J accepted the Minister's submissions holding that:
85. The applicant's argument misconceives the representative nature of the Tribunal's function and, for that matter, the same function when the exercise of the revocation power is being considered by the Minister or his delegate. The concept of community expectations is not a matter to be measured as though it is a provable fact. It is an assessment of community values made on behalf of that community. That would be so even in the absence of the express terms of Direction 65. However, those express terms put the question beyond doubt. The norm is stipulated, inter alia, in Direction 65 reproduced above. The Tribunal was required to give effect to those norms, which is precisely what it did. There is no error, legal or factual, in what the Tribunal did, let alone the requisite jurisdictional error. This sub-ground must therefore fail.
(emphasis added)
33 Relying upon this passage in Afu, the applicant in this case submitted that cl 11.3 "requires the Tribunal to undertake 'an assessment of community values made on behalf of that community'". However, as submitted by the Minister, Bromwich J did not suggest that it is the Tribunal that undertakes this assessment. Instead, as his Honour held, the express terms of Direction 65 create the "norm" to which the Tribunal must give effect. It follows that Afu lends no support to the applicant's submission that the decision in Oluwafemi is plainly wrong.
34 Secondly, contrary to the suggestion by the applicant (albeit faintly alluded to), I do not see a basis for distinguishing the decision in Oluwafemi or the other decisions to which I have referred. The applicant's argument here is essentially the same, namely, that cl 11.3 does not preclude the Tribunal from making its own assessment of community expectations for the purpose of cl 11.3, and therefore as a primary consideration, having regard to the circumstances of the applicant's case.
35 Thirdly, the applicant argues that, contrary to the construction of cl 11.3 adopted in Oluwafemi, cl 8(3) of Direction 65 suggests that, by their nature, each of the "primary considerations" specified in the Direction and the "other considerations" may individually weigh in favour of or against (relevantly) refusal, or be neutral, depending upon an applicant's subjective circumstances. In my view, with respect, that construction does not accord with the language and context of cl 8(3).
36 Specifically, after referring to the obligation to take primary and other considerations into account where relevant and the need to give appropriate weight to evidence from independent and authoritative sources, cl 8 relevantly provides that:
(3) Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.
(4) Primary considerations should generally be given greater weight than the other considerations.
(5) One or more primary considerations may outweigh other primary considerations.
37 On an ordinary and natural reading, the purpose of cl 8 is to specify the obligation to take into account the primary and other considerations relevant to the individual case and, importantly for present purposes, to specify the way in which those considerations are to be weighed as against each other. It says nothing about the content of the primary and other considerations in a particular case or more generally; nor does it say anything about whether by their nature the primary and other considerations favour refusal, cancellation or non-revocation.
38 Rather, the content of primary and other considerations is specified relevantly in cl 11 and cl 12 respectively of Part B of Direction 65 which applies to the discretion to refuse to grant a visa. Clause 11 provides that primary considerations not only include "Protection of the Australian community" from criminal or other serious conduct and "Expectations of the Australian Community", but also the "Best interests of minor children in Australia" which plainly may, and in general will, weigh against refusal of a visa in the final balance (as the Full Court explained in Nigam v Minister for Immigration and Border Protection [2017] FCAFC 127; (2017) 254 FCR 295 at [44]). Similarly, "other considerations" as specified in cl 12 include international non-refoulement obligations which, where relevant, will almost certainly weigh against refusal. "Other considerations" identified in cl 12 also include the impact on family members, impact on victims, and impact on Australian business interests. In contrast to non-refoulement obligations, the latter may, of their nature, weigh against or in favour of refusal depending on the individual's circumstances. As such, some primary and other considerations by their nature tend to "tip the balance" in favour of or against refusal, while some considerations may tend to "tip the balance" in one direction only or the other depending upon the particular facts.
39 Contrary, therefore, to the applicant's submissions, in my view there is nothing in the text or context of cl 8(3) which suggests that a primary consideration must be of the latter, fact-sensitive kind as opposed to establishing a "norm". Furthermore, as the Minister submitted, it would render cl 8(3) unworkable if an "other consideration", which was required by cl 8(4) to be given less weight than a "primary consideration", was nonetheless to be taken into account as an aspect of a "primary consideration". Read in context, therefore, cl 8(3), together with cl 8(4) and (5), do no more than explain the final exercise of balancing the primary and other considerations - adverse and favourable - in which the decision-maker must engage in deciding whether or not to refuse a visa. There is therefore nothing in cl 8(3) which undermines the construction of cl 13.3 adopted by Mortimer J in YNQY (and applied to cl 11.3 by Thawley J in Oluwafemi), namely, that it expresses the expectation of the Australian community only in terms of the negative conclusion that it may be appropriate to refuse to grant the visa by reason of an applicant's commission of serious criminal offences.
40 Finally, the applicant identified cl 6.3(5) of Direction 65 as the high point of his argument. This clause, together with the remaining paragraphs of cl 6.3, set out the principles which provide a framework within which decision-makers should approach the exercise of discretion to refuse or cancel a visa or to not revoke an automatic visa cancellation. Clause 6.3(5) reads:
Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
41 In the applicant's submission, this clause expressly permits the decision-maker to take considerations which are subjective to an applicant into account. That is unquestionably correct. However, it does not mean that those subjective considerations must be taken into account by the Tribunal so as to reach its own conclusion about community expectations for the purposes of cl 11.3. Rather, provision is expressly made elsewhere in the Direction for individual or subjective considerations, such as the impact on family members and on victims, to be taken into account in the balancing exercise as "other considerations" in cl 12.
42 It follows, in line with the authorities, that cl 11.3 of Direction 65 is a statement of the Government's view as to the expectations of the Australian community for the purposes of determining whether or not to refuse a visa. Contrary to the applicant's submissions, it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an applicant's circumstances or evidence about those expectations. Rather, the Tribunal must give effect to the "norm" stipulated in cl 11(3) which will of its nature weigh in favour of refusal, at least in most cases. As such, the Tribunal did not fall into jurisdictional error in failing to have regard to the applicant's circumstances when assessing the expectations of the Australian community in applying cl 11(3) of the Direction.