Howells v Minister for Immigration and Multicultural and Indigenous Affairs

Federal Court of Australia (Full Court)|2004-12-16|Before: Crennan JJ

REASONS FOR JUDGMENT THE COURT: 1 This is an appeal from a decision of a judge of this Court refusing an application for review of a decision made by the respondent, the Minister for Immigration and Multicultural Affairs (the Minister), on 7 August 2001 whereby the Minister determined to cancel the appellant's permanent resident visa pursuant to the provisions of s 501 of the Migration Act 1958 (Cth) (the Act) and refusing the appellant's further application for an order in the nature of mandamus requiring the Minister to give reasons for his decision.

THE MINISTER'S DECISION 2 The appellant was born in England on 18 May 1969 and first entered Australia on 6 June 1982. He has continued to reside in Australia except for four periods of time in 1985/1986, 1987, 1993 and 1994. The longest period of time for which he lived outside Australia was 11 months. 3 At the relevant time, the appellant was the holder of a visa, Transitional (permanent) BF visa. 4 The appellant has been convicted and sentenced for a number of offences: '· 22.12.1995 Perth Supreme Court for 1 charge of Robbery Whilst Armed in Company; imprisonment for 3 yrs 3 mths. · 21.03.1996 Perth District Court for 3 charges of Burglary, imprisonment for 18 mths concurrent each charge. · 19.05.1998 Perth District Court for 2 charges of Burglary and Commit Offence Aggravated (Habitation), imprisonment for 2 yrs each charge, concurrent. · 19.05.1998 Perth District Court for 2 charges of Burglary with Intent, Aggravated (Habitation) imprisonment 18 mths one charge and 2 yrs imprisonment for second charge, concurrent. · 19.05.1998 Perth District Court for 1 charge of Cannabis Possess, imprisonment for 12 mths. · 19.05.1999 Perth District Court for 1 charge of Import Prohibited Import, imprisonment for 3 yrs. · 24.05.1999 Perth District Court for 1 charge of Import Prohibited Import, imprisonment for 3 yrs. · 24.05.1999 Perth District Court for 2 charges of Possess Money being Proceeds of Crime, imprisonment for 6 mths each charge cumulative.' 5 On or about 19 July 2001 the Minister was provided with a minute (sometimes called an issues paper) prepared by a case officer in the Minister's department seeking his decision: '· Whether Mr HOWELLS passes the character test in s.501(6) of the Migration Act; and · If not, whether his visa should be cancelled pursuant to s.501(2) of the Migration Act.' 6 The minute directed the Minister's attention to the provisions of s 501 of the Act and the offences for which the appellant had been convicted and sentenced. 7 The minute advised the Minister that it would be open to the Minister to find: '[T]hat there is a reasonable suspicion that Mr HOWELLS does not pass the character test due to the fact that he has been sentenced to a term of imprisonment of 12 months or more.' 8 Next, the Minister was advised that if he were satisfied that the appellant did not pass the character test he must consider, in the exercise of his discretion, whether Mr Howells should be permitted to remain in Australia. He was advised that s 501 of the Act provided him with a discretion to cancel the visa. The Minister was advised: 'You have issued Directions under s.499 to guide delegates and the AAT in the exercise of that discretion. It is clear from a number of decisions of the Federal Court that, when you decide a case personally, you are not bound by your s.499 Directions. In making a decision on this case it is open to you to be guided by the factors set out in the Direction. However, in balancing the relevant facts in this case, you are free to place whatever weight you regard as appropriate on those factors.' [The Direction to which the minute referred was Direction No. 17, 'Direction - Visa Refusal and Cancellation under Section 501 - No. 17' (Direction No. 17) made under s 499 of the Act.] 9 The Minister was provided with a copy of the appellant's response to the notice advising the appellant that consideration was being given pursuant to s 501 to cancelling the appellant's visa. 10 The minute then addressed the primary considerations to which the Minister should have regard. First, it drew the Minister's attention to the need for protection of the Australian community and, in that regard, the seriousness and nature of the conduct for which the appellant had been convicted and sentenced. The minute recited paragraphs 2.6 and 2.7 of Direction No. 17. 11 It drew the Minister's attention to the sentencing remarks made by a judge of the District Court of Western Australia when sentencing the appellant. 12 The minute also drew the Minister's attention to the factors which might bear upon the likelihood that the conduct could be repeated including any risk of recidivism and, further, remarks of other judges who had sentenced the appellant. It drew the Minister's attention to other relevant statements and, in particular, the appellant's submission. 13 Next, the minute addressed questions of general deterrence. In doing so, it referred the Minister to paragraph 2.11 of Direction No. 17. 14 The next primary consideration addressed in the minute was the expectations of the Australian community. The minute set out paragraph 2.12 of the direction. The minute also addressed the best interests of the children and other considerations. 15 In regard to other considerations the minute stated: '[24] Paragraph 2.17 of the Minister's Direction provides that other considerations may be taken into account by the decision-maker. It is the Government's view that where relevant, it is appropriate that these matters be taken into account but that they be given less individual weight than that given to the primary considerations.' 16 The minute concluded: 'Any other relevant considerations [33] All matters raised have been addressed in line with the Direction. OTHER MATTERS RAISED BY/ON BEHALF OF MR HOWELLS [34] All matters raised have been addressed in line with the Direction.' 17 The minute provided for a 'PART E: DECISION'. 18 That part was in the following form: 'I have considered all relevant matters including (1) an assessment of the Character Test as defined by s501(6) of the Migration Act 1958, (2) my Direction under s499 of that Act and Mr Gary HOWELL's comments, and have decided that: Please delete whichever is NOT applicable: (a) I am satisfied that Mr Gary HOWELLS passes the character test; OR (b) I reasonably suspect that Mr Gary HOWELLS does not pass the character test and Mr Gary HOWELLS has not satisfied me that he passes the character test BUT I have decided NOT to exercise my discretion under subsection 501(2) of the Act to cancel the visa; OR (c) I reasonably suspect Mr Gary HOWELLS does not pass the character test and Mr Gary HOWELLS has not satisfied me that he passes the character test BUT I have decided NOT to exercise my discretion under subsection 501(2) of the Act to cancel the visa BUT Mr Gary HOWELLS is to be WARNED that a fresh assessment will be made with a view to consider cancelling his visa if he is convicted of any further offences; OR (d) I reasonably suspect that Mr Gary HOWELLS does not pass the character test and Mr Gary HOWELLS has not satisfied me that he passes the character test AND I have decided TO EXERCISE MY DISCRETION UNDER SUBSECTION 501(2) OF THE ACT TO CANCEL THE VISA, so I hereby cancel the visa.' 19 On 7 August 2001 the Minister apparently deleted paragraphs (a), (b) and (c) and signed the decision. 20 The relevant subsections of s 501G provide: (1) If a decision is made under subsection 501(1) or (2) or 501A(2) or section 501B or 501F to: (a) refuse to grant a visa to a person; or (b) cancel a visa that has been granted to a person; the Minister must give the person a written notice that: (c) sets out the decision; and (d) specifies the provision under which the decision was made and sets out the effect of that provision; and (e) sets out the reasons (other than non-disclosable information) for the decision; and … (3) A notice under subsection (1) must be given in the prescribed manner. (4) A failure to comply with this section in relation to a decision does not affect the validity of the decision.' 21 When the Minister signed that minute he no doubt thought that, in doing so, he was complying with his statutory obligations under s 501G and that the minute, as signed, disclosed his reasons: s 501G(1)(e). There was, at that time, a body of authority consisting of decisions of single judges of this Court to that effect: Diep v Minister for Immigration and Multicultural Affairs [2001] FCA 1130; Javillonar v Minister for Immigration and Multicultural Affairs (2001) 114 FCR 311; Adams v Minister for Immigration and Multicultural Affairs [2001] FCA 552 and Ruhl v Minister for Immigration and Multicultural Affairs (2001) 184 ALR 401 at [29]. 22 It was not until a decision of the Full Court of this Court in Minister for Immigration and Multicultural Affairs v W157/00A (2002) 125 FCR 433 in September 2002 that the Minister could have known that the procedure which he adopted did not comply with his statutory obligations under s 501G(1)(e). In Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme (2003) 201 ALR 327, the High Court of Australia held that the signing of a minute of that kind did not comply with s 501G(1)(e): [40], [54]. 23 The Minister's state of mind does not excuse the Minister's failure to give reasons but only explains that failure. 24 The decisions of the High Court and the Full Court mean that the Minister has not given the appellant written notice that sets out the reasons for the decision. That failure will need to be addressed.

THE LEGISLATION 25 The relevant subsections of s 501 provide: '(2) The Minister may cancel a visa that has been granted to a person if: (a) the Minister reasonably suspects that the person does not pass the character test; and (b) the person does not satisfy the Minister that the person passes the character test. … (6) For the purposes of this section, a person does not pass the character test if: (a) the person has a substantial criminal record (as defined by subsection (7)); …' 26 It is not necessary to have regard to s 501(7) because the appellant accepts that he has a substantial criminal record as defined by that subsection. He also accepts that as a result he does not pass the character test. 27 The power given to the Minister is undoubtedly discretionary. 28 Section 499 of the Act empowers the Minister to give written directions to a person or body having functions or powers under the Act about the performance of those functions or the exercise of those powers. 29 Section 499(2) provides that the Minister is not empowered to give directions that would be inconsistent with the Act or the regulations made under the Act. 30 Section 499(2A) requires a person or body to whom the directions are given under s 499(1) to comply with those directions. 31 A direction under s 499 does not bind the Minister: Halmi v Minister for Immigration and Multicultural Affairs (1999) 95 FCR 1; Misiura v Minister for Immigration & Multicultural Affairs [2001] FCA 133. Of course, the Minister can use any direction as a guide. 32 The Minister has given directions under s 499, including Direction No. 17 which is a direction to all decision-makers involved in making decisions to refuse or cancel a visa under s 501 of the Act and, as noted above, is cited as 'Direction - Visa Refusal and Cancellation under Section 501 - No. 17'.

DIRECTION NO. 17 33 After a 'Preamble' and a 'Preliminary', Direction No. 17 is divided into two parts. Part 1 deals with the 'Application of the Character Test' and Part 2, 'Exercising the Discretion'. 34 We set out the relevant paragraphs of Part 2 of Direction No. 17 as follows: '2.1 If a non-citizen does not pass the Character Test, decision-makers must have regard to the following considerations when exercising the discretion to decide whether or not the non-citizen should be permitted to enter or remain in Australia. Weight of considerations 2.2 The Government is mindful of the need to balance a number of important factors in reaching a decision whether or not to refuse or cancel a visa. In making such a decision, a decision-maker should have regard to three primary considerations and a number of other considerations. The primary considerations are set out at paragraphs 2.3 - 2.16 and other considerations are set out at paragraphs 2.17 - 2.23. Decision-makers should note that no individual considerations can be more important than a primary consideration, but that a primary consideration cannot be conclusive in itself in deciding whether to exercise the discretion to refuse or to cancel a visa. Decision-makers must have due regard to the importance placed by the Government on the three primary considerations, but should also adopt a balancing process which takes into account all relevant considerations. PRIMARY CONSIDERATIONS 2.3 In making a decision whether to refuse or cancel a visa, there are three primary considerations: (a) the protection of the Australian community, and members of the community; (b) the expectations of the Australian community; and (c) in all cases involving a parental relationship between a child or children and the person under consideration, the best interests of the child or children. OTHER CONSIDERATIONS 2.17 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 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; (b) genuine marriage to, or de facto or interdependent relationship with, an Australian citizen, permanent resident or eligible New Zealand citizen:

in assessing the compassionate claims of the Australian partner (Australian citizen, resident or eligible New Zealand citizen), decision-makers must consider the circumstances under which the relationship was established and whether the Australian partner knew that the non-citizen was of character concern at the time of entering into or establishing the relationship; (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; (e) the likelihood of the non-citizen seeking to evade any outstanding legal matter or on-going liability; (f) the likelihood of the non-citizen breaching any conditions attached to the outstanding legal or on-going matter, any cost or bilateral implications of such a breach (eg extradition); (g) the nature and seriousness of the offence(s) or alleged offence(s) (in the context of seeking to evade an outstanding legal matter); (h) any evidence of rehabilitation and any recent good conduct; (i) whether the application is for a temporary visa or permanent visa; (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. OTHER INTERNATIONAL OBLIGATIONS 2.18 Where relevant, decision-makers are required to consider the international obligations contained in this section. 2.19 The International Convention on Civil and Political Rights (ICCPR) has an implicit non-refoulement obligation where as a necessary or foreseeable consequence of expulsion, the person would face a real risk of violation of his or her human rights, such as being subjected to torture or the death penalty (no matter whether lawfully imposed). 2.20 The Convention Against Torture (CAT) has an explicit prohibition against expulsion "where there are substantial grounds for believing (the person) would be in danger of being subject to torture". The prohibition is absolute: there is no balancing of other factors if refusal or cancellation would amount to refoulement within the meaning of the CAT. 2.21 In cases where issues of protection pursuant to the Convention and the Protocols Relating to the Status of Refugees (the Refugees Convention) are raised, they must be given consideration in the decision making process. 2.22 If Article 33(1) of the Refugees Convention does not apply to the non-citizen, there is no obligation on Australia to provide the non-citizen with protection under the Refugees Convention. If Article 33(1) applies, then there will need to be consideration whether the non-citizen can claim the benefit of Article 33(1). 2.23 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. Date of effect of Direction 2.24 This direction is to take effect from the date of signature.' The direction was signed on 16 June 1999. 35 In the Department's letter to the appellant, dated 12 June 2001, advising him of the Minister's intention to consider cancelling the appellant's visa, the Department wrote: 'In reaching a decision whether to cancel the visa the Minister will have regard to the matters noted above and the attached Minister's Direction No 17 titled "Direction under Section 499 - Visa Refusal and Cancellation under Section 501 Migration Act 1958". In preparing your comments please read fully and carefully the contents of the Minister's Direction. You should address each and every topic that you feel applies to you or is relevant to your circumstances. You may also provide any further information, apart from those considerations listed in the Minister's Direction, that you feel the Minister ought to be aware of and take into account.' That letter clearly evidences the Minister's intention to have regard to Direction No. 17. 36 The Minister's statement in 'PART E: DECISION' that the Minister has considered 'my Direction under s 499 of (the) Act' proves conclusively that the Minister had regard to Direction No. 17.

THE PROCEEDINGS 37 The appellant commenced these proceedings by filing an application for judicial review of the Minister's decision of 7 August 2001 which contained two grounds, both of which were particularised. First, it was asserted that the Minister had failed to comply with procedures in connection with the making of the decision by not providing the appellant with the Minister's reasons as required under s 501G(1)(e). Secondly, the Minister had improperly exercised his discretion under the Act. 38 The application for judicial review sought interlocutory relief but only orders restraining the Minister from taking any steps to remove the appellant from Australia and releasing the appellant from immigration detention pending the substantive hearing of the matter. 39 On 14 April 2003 the appellant filed an amended application for an order of review in which the applicant sought the following orders: '1. An order that the decision of the respondent dated 7 August 2001 to cancel the transitional (permanent) BF visa held by the applicant be set aside. 2. An order that the respondent reinstate the applicant's visa. 3. In the alternative, an order that within twenty-one (21) days the respondent give to the applicant reasons for his decision on 7 August 2001 to cancel the visa held by the applicant as required by s 501G(1)(e) of the Migration Act. 4. Such further or alternative orders or relief as the Court deems fit. 5. An order that the costs of and incidental to the application be paid by the respondent.' 40 It was contended before the primary judge and on this appeal that the Minister had not complied with s 501G(1)(e) and also that, insofar as the Minister had paid regard to the Minister's own direction, the Minister had thereby fettered the unfettered discretion given the Minister in s 501 of the Act. Because of those failures, the decision, it was submitted, was subject to review under s 476(1) of the Act which, at the relevant time, provided: '(1) Subject to subsection (2), application may be made for review by the Federal Court of a judicially-reviewable decision on any one or more of the following grounds: (a) that procedures that were required by this Act or the regulations to be observed in connection with the making of the decision were not observed; (b) that the person who purported to make the decision did not have jurisdiction to make the decision; (c) that the decision was not authorised by this Act or the regulations; (d) that the decision was an improper exercise of the power conferred by this Act or the regulations; (e) that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision; (f) that the decision was induced or affected by fraud or by actual bias; (g) that there was no evidence or other material to justify the making of the decision.'

THE PRIMARY JUDGE'S REASONS 41 The primary judge followed the decision of the Full Court of this Court in Minister for Immigration and Multicultural Affairs v W157/00A. In that case, the Full Court considered a decision of Lee J in W157/00A v Minister for Immigration and Multicultural Affairs (2001) 190 ALR 55 in which his Honour found that a failure to give reasons for decision as required by s 501G(1)(e) attracted review by the Federal Court. In separate judgments, the members of the Court (Branson, Goldberg and Allsop JJ) each concluded that a failure to provide reasons would not provide a ground of review pursuant to s 476(1)(a) of the Act. 42 It was contended before the primary judge that the High Court had expressed a preference for Lee J's decision in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme at 336 and that the decision of the Full Court overruling Lee J's judgment should not be followed. 43 The primary judge rejected that contention and followed the decision of the Full Court in Minister for Immigration and Multicultural Affairs v W157/00A. He found that the failure by the Minister to provide reasons under s 501G(1)(e) did not provide grounds for review under s 476(1)(a). 44 In relation to the claim that the Minister had, by following Direction No. 17, fettered his unfettered discretion conferred by s 501, the primary judge accepted the respondent's submission that it could not be inferred that the Minister had misunderstood or fettered his discretion by regarding primary factors as requiring to be given weight outweighing other factors or failing to give weight to other factors. 45 The primary judge found, as a matter of fact, that the Minister had not circumscribed his unfettered discretion. 46 The primary judge addressed the alternative claim for an order in the nature of mandamus requiring the Minister to give reasons for decision. 47 The primary judge noted that the original application which was filed on 6 September 2001 sought only general relief. It was not until an amended application was filed on 14 April 2003 that an order was sought by the appellant for the Minister to provide reasons for decision. 48 The primary judge observed that it was the respondent's predecessor who had been the Minister at the time and, if any order of the kind sought were to be made, it would be the former Minister who would have to give those reasons. 49 The primary judge accepted that the statutory obligation imposed by s 501G(1)(e) was an important factor in considering whether the discretionary remedy of mandamus should be ordered. 50 In the end result, the primary judge concluded that because of the delay the former Minister would be severely prejudiced if required to provide reasons which, given the passage of time, would be no more than a reconstruction. 51 The primary judge found that if he required reasons to be given the appellant would object to them in any event. 52 The primary judge also found that the factors against outweighed those favouring the grant of the remedy so that the discretion had to be exercised against the appellant.

THE GROUNDS OF APPEAL AND THE APPELLANT'S CONTENTIONS 53 The grounds of appeal are: 'GROUNDS 2. The learned Judge erred in not holding that the Respondent's failure to give the Applicant a written notice that set out the reasons for the decision to cancel the Appellant's visa, as required by s 501G(1)(e) of the Migration Act 1958, gave rise to a ground of review pursuant to s 476(1)(a) of the Act on the basis that procedures that were required to be observed in connection with the making of the decision were not observed, and in holding that the High Court case of Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex Parte Palme (2003) 201 ALR 327 at [43] did not provide authority that such failure to give reasons attracted review pursuant to s 476(1)(a). 3. The learned Judge erred in not holding that the Respondent's decision to cancel the Appellant's visa involved an error of law, for the purposes of s 476(1)(e) of the Migration Act, on the basis that the Respondent applied the provisions of Direction No. 17 (Direction - Visa Refusal and Cancellation under Section 501 - No. 17), promulgated under s 499 of the Act, to his decision-making and thereby unlawfully fettered his discretion under s 501 of the Act. 4. The learned Judge erred (in par. [39] of his Honour's Reasons) in regarding the relevant issue as being whether the Respondent was advised and was aware that he was free to place whatever weight he regarded as appropriate on the factors set out in Direction No. 17, rather than whether he fettered his discretion by adopting the approach to the weighing and balancing of considerations as contained in the Direction. 5. The learned Judge erred (in par. [40] of his Honour's Reasons) in regarding the fact that the notice to the Appellant of intention to cancel his visa advised him that he could provide any further information, apart from the considerations listed in the Direction, as being determinative of the issue whether the Respondent fettered his discretion in making his decision. 6. The learned Judge erred in not deciding that the Appellant was entitled, as an alternative remedy, to an order requiring the Respondent to give to the Appellant reasons for the Respondent's decision to cancel the visa, and in particular erred in considering that the Appellant's delay in specifically seeking an order for the provision of reasons justified in all the circumstances the exercise of the discretion against granting the remedy. 7. The learned Judge further erred in considering it to be a proven fact that any reasons now provided would be by way of reconstruction. 8. The learned Judge further erred in considering the fact that it was the present Minister's predecessor who made the decision cancelling the Appellant's visa to be relevant to the exercise of the discretion against granting the remedy, given that the person who was Minister when the decision to cancel the Appellant's visa was made remained the Minister at the time when the Appellant sought an order by way of amended application that the Respondent provide reasons for the decision.' 54 Before the primary judge and again on this appeal, the appellant contended that if he were not entitled to have the Minister's decision quashed for the two reasons advanced he would nevertheless be entitled to an order requiring the Minister to give the appellant reasons for the Minister's decision on 7 August 2001 cancelling the appellant's visa. 55 Essentially, three matters were and are advanced. First, the failure to give reasons as required under s 501G(1)(e) means that the decision should be set aside: Ground 2. Alternatively, if the decision should not be set aside for a failure to give reasons, the decision should be set aside because, having regard to Direction No. 17, the Minister fettered the exercise of his unfettered discretion under s 501: Grounds 3-5. Thirdly, and alternatively to both the first two submissions, if the decision should not be set aside for either of those reasons, the Minister should be compelled to give the reasons which the Minister is required to give under s 501G(1)(e): Grounds 6-8.

grounds 6-8 the application for mandamus 56 The procedure adopted by the appellant before the primary judge was, with respect, misconceived. At no stage before the hearing of the application for judicial review did the appellant seek an interlocutory order requiring the Minister to give reasons for the decision under review. The appellant's counsel conceded as much. 57 Although it was conceded by the respondent that no reasons had been given in conformity with s 501G(1)(e), the respondent objected to any order requiring reasons to be given for the purpose of the appellant's applications or for any other purposes. 58 Because of the failure by the appellant to seek an order requiring the Minister to give reasons before the hearing of the application for judicial review, the application, made at the same time as the hearing of the judicial review, for an order requiring the Minister to give reasons, had to fail. If the appellant had been successful before the primary judge on the application for judicial review of the Minister' decision, and had obtained an order setting aside that decision for either of the two grounds advanced, then no order would have been made for the Minister to provide reasons for the Minister's decision because the Minister's decision would have been set aside. There would have been no point in ordering the Minister to give reasons for a decision that had been quashed. 59 If, on the other hand, the appellant had been unsuccessful before the primary judge and no order had been made setting aside the Minister's decision, and the application for judicial review had been dismissed then, again, no order would have been made requiring the Minister to give reasons because the application for judicial review would have already been dismissed. 60 The appellant should have applied by way of interlocutory application for an order in the nature of mandamus requiring the Minister to give reasons: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme at [48] and [57]. Whether such an order would have been granted is another matter. There would have been good arguments for and against the making of such an order. 61 A reason for requiring the Minister to give reasons is the public interest in ensuring that Ministers of the Crown perform their statutory duties. The Minister had a statutory duty to give reasons: s 501G(1)(e). 62 A reason to exercise the discretion against such an order was the appellant's delay in seeking such an order. 63 The present Minister was sworn in on 7 October 2003 and the Minister who made the decision is no longer the Minister. Whilst the previous Minister was the Minister when the appellant filed his amended application, the appellant did not move for an interlocutory order in terms of paragraph 3 of that amended application. 64 In the end, it does not matter. The appellant sought to have his application for judicial review determined without first seeking to obtain the Minister's reasons. No doubt, there were good forensic reasons for doing so. If reasons had been ordered and given, the appellant's first contention would have no longer been tenable. Moreover, the appellant's second contention may also not have been arguable if the Minister's reasons had shown that he had not fettered his discretion. 65 For whatever reason, the appellant sought to have his application for judicial review determined without first obtaining an order for the Minister to give reasons. On appeal, the appellant should be bound by the way in which he conducted the matter before the primary judge. 66 On this appeal, the appellant's counsel accepted that an interlocutory application seeking such an order should have been made prior to the hearing of the judicial review. He contended that on this appeal this Court should make an order directing the Minister to provide reasons for the decision made on 7 August 2001, although it would mean that this Court could not consider grounds 3, 4 and 5 until such reasons were given. 67 The appellant's counsel contended that this Court could deal with ground 2 at this stage even if the Court made a direction requiring the Minister to give reasons. 68 If the Court were to make a direction that the Minister should give reasons, the Court could not consider grounds 3, 4 and 5 which call into question the exercise of the Minister's discretion. It may be that, if reasons were delivered, factors other than those considered by the primary judge would need to be considered. The appellant's counsel's concession in that regard is rightly made. 69 However, if the course proposed by the appellant were adopted, the Court could also not consider ground 2 because that ground depends upon the absence of reasons. The Court could only consider ground 2 if, in fact, the authorities make it clear that the failure by the Minister to give reasons is not a ground for review under s 476(1)(a) of the Act. If there were any doubt about that matter the Court, if it were to make an order of the kind suggested by the appellant's counsel, would need to defer deciding that matter until the Court knew whether or not reasons were to be delivered. 70 There are other difficulties which face the appellant on this application. First, this Court would have to make an order directing the Minister to give reasons, notwithstanding that the primary judge's decision refusing the application for judicial review had not been set aside. 71 Secondly, the Honourable Mr Ruddock, who was the Minister who made the decision on 7 August 2001, is no longer the Minister and has not been the Minister since October 2003. 72 Any order directed to the Minister to give reasons for the decision would be to a person (Senator Vanstone) who was not the Minister at the time the decision was made. 73 The appellant elected to proceed in the manner in which he did before the primary judge. 74 It seems to us that it is far too late for the appellant now to seek interlocutory orders to enable the appellant to present evidence on the application for judicial review which has already been dismissed. 75 Procedurally, it seems to us impossible for this Court on appeal to make an order directing the Minister to give reasons for the decision in circumstances where the orders made by the primary judge dismissing the application for judicial review still stand. 76 The application for an interlocutory order in the nature of mandamus directed to this Minister to provide the reasons of the former Minister for decision should be refused. 77 In those circumstances, the two matters to be addressed are the matters which were originally raised on the application for judicial review.

GROUND 2 78 The Minister's decision was made on 7 August 2001 which was prior to the introduction of the present privative clause provisions in Part 8 of the Act and the amendments to s 476 of the Act which came into effect on 2 October 2001: Migration Legislation Amendment (Judicial Review) Act 2001 (Cth). 79 The relevant provisions of s 476, as it stood prior to the amendment in 2001, which are set out in [40], govern the question whether the appellant is entitled to an order for judicial review. 80 It was contended that, because s 501G(1)(e) required the Minister to give the appellant written notice that sets out the reasons for the decision, which admittedly has not been done, the procedures required by the Act were not observed: s 476(1)(a). 81 In W157/00A v Minister for Immigration and Multicultural Affairs, Lee J considered whether the Minister's failure to give reasons, as required by s 501G(1)(e), was a ground for review under s 476 of the Act (which was in the same terms as the section under consideration in this appeal). His Honour suggested that it might not be necessary to determine if the ground under s 476(1)(a) had been made out because: 'The real issue may be whether the absence of reasons, or, if the "issues document" is to be taken to set out the reasons of the minister, inadequacy in those reasons, provides ground for review under s 476(1)(b), (c) or (e) of the Act.' 82 Lee J said that the arguments advanced raised the question whether the ground for review arose under s 476(1)(b), (c) or (e) as elements of jurisdictional error: [73]. He said at [87]: ' The "issues document" failed to show that the minister addressed the right question, or alternatively, dealt with that question according to law, and ground for review of the minister's decision was established under s 467sic(b) or (c) for jurisdictional error, or under s 476(1)(e) in that the reasons revealed an error in the interpretation of the applicable law or in the application of that law to the facts. (See Yusuf per McHugh, Gummow and Hayne JJ at [82], [84].) That is to say, a matter the minister was bound to take into account was not properly addressed in the making of the decision by reason of an incorrect understanding of what the law required the minister to do in carrying out the decision-making process. (See Vataiki per Burchett J at 618‑19; per Branson J at 631.)' 83 It is important to note in considering the argument advanced on this appeal that his Honour's reasons for decision are based, at least in part, on the ground that the failure to give reasons amounts to jurisdictional error. 84 The Minister appealed and a Full Court of this Court reversed his Honour's decision: Minister for Immigration and Multicultural Affairs v W157/00A. 85 Branson J noted that Lee J had concluded that a ground of review of the Minister's decision was established under s 476(1)(b) for jurisdictional error and under s 476(1)(e). 86 Her Honour considered whether the notice set out the Minister's reasons and then turned to the question whether the failure to give reasons constituted a ground of review. She said that Lee J was wrong in his tentative conclusion that a ground of review under s 476(1)(a) was made out. Goldberg and Allsop JJ, in their separate judgments, agreed with that conclusion. 87 Her Honour, like Allsop J, also concluded that there was no evidence to support the proposition relied on by Lee J that the Minister had failed to take into account the best interests of the children. In those circumstances, the Court concluded (Goldberg J reluctantly agreeing) that no ground for review existed under s 476. 88 The decision of the Full Court was binding upon the primary judge in this matter and he followed it. For that he could not be criticised. 89 However, it was argued by the appellant that Lee J's decision had been approved by the High Court in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme and, in particular, in the joint judgment of Gleeson CJ, Gummow and Heydon JJ at [43]. It was contended that, in those circumstances, the primary judge had been wrong to follow the decision of the Full Court of this Court and should have followed the decision of Lee J. 90 In Palme, Gleeson CJ, Gummow and Heydon JJ said at [43]: ' It was decided by Lee J in W157/00A v Minister for Immigration and Multicultural Affairs that the failure by the respondent to give a written notice setting out the reasons for the decision as required by s 501G(1)(e) attracted review by the Federal Court under what was then s 476 of the Act. This was because there had been a failure to observe "procedures that were required by [the] Act … to be observed in connection with the making of that decision" (emphasis added). That may be conceded, but it does not address the submission that such a failure also taints that decision with jurisdictional error so as to attract s 75(v) of the Constitution.' (Footnotes omitted.) 91 Their Honours provided a footnote in the following terms: 'His Honour's treatment of the subject was not challenged on appeal: Minister for Immigration and Multicultural Affairs v W157/00A (2002) 72 ALD 49 at 56.' 92 Of course, Lee J's decision that the Minister's failure to give reasons as required under s 501G(1)(e) of the Act was challenged insofar as the Minister contended before the Full Court that that failure did not give rise to any relief. 93 In particular, it was argued before Lee J, and on appeal in the Full Court, that no relief was available under s 476(1)(a). 94 In our opinion, the footnote to which we have referred means only that Lee J's decision that the Minister was obliged to give reasons under s 501G(1)(e), and those reasons were not contained in the minute or the issues paper before him, was not challenged on appeal. 95 In our opinion, it cannot be thought that the reference by the Justices in the High Court to Lee J's decision was intended to overrule the decision of the Full Court of this Court. The reference is too oblique for that construction. 96 Moreover, as has already been noted, Lee J concluded that that failure amounted to jurisdictional error. At [46], Gleeson CJ, Gummow and Heydon JJ said that the failure to notify and to provide reasons 'does not impeach the cancellation decision for jurisdictional error': see also [48]. 97 McHugh J said at [56] that there was no support in Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 for the appellant's contention that the failure to give reasons under s 501G(1)(e) amounted to jurisdictional error: see also [57]. 98 The reasons given by the majority in the High Court do not support the appellant's contention that the rather oblique reference to Lee J's decision meant that those Justices of the High Court were overruling the decision of the Full Court which had, in turn, overruled Lee J's decision. 99 The primary judge, rightly in our opinion, refused to accept the appellant's contention before him that Palme had overruled the decision of the Full Court in W157/00A and again, rightly in our opinion, followed the decision of the Full Court. 100 The first ground must fail.

GROUNDS 3-5 101 The second ground advanced by the appellant was premised on the contention that the Minister had an unfettered discretion under s 501. There are three separate sources of power given to the Minister under s 501 and they are separately contained in subsections (1), (2) and (3). 102 Subsection (1) empowers the Minister to refuse to grant a visa to a person not already in possession of a visa. Subsection (2) empowers the Minister to cancel a visa of a person already in possession of a visa. Subsection (3) empowers the Minister to refuse to grant a visa to a person or to cancel a visa of a person where, unlike subsections (1) and (2), the Minister is satisfied that the refusal or cancellation is in the national interest. 103 The only power that must be exercised by the Minister, and is not able to be exercised by the Minister's delegate, is that contained in subsection (3): s 501(4). 104 It must follow, therefore, that if the applicant's contention that the Minister has an unfettered discretion is correct, then so must also the Minister's delegate have an unfettered discretion when exercising the powers under s 501(1) and (2). 105 That raises the question of the application of s 499 in circumstances where the Minister's delegate is exercising those powers. However, that is not a live issue on this appeal and need not be decided. In this appeal the Minister exercised the power under s 501(2). 106 When talking of an unfettered discretion conferred by statute it must be acknowledged that the matters to which the decision-maker may have regard are determined by a construction of that statute. Where the statute does not identify those matters 'they must be determined by implication from the subject matter, scope and purpose of the Act': Minister for Aboriginal Affairs and Another v Peko Wallsend Limited and Others (1986) 162 CLR 24 at 39-40 per Mason J. For the purpose of this appeal, it may be assumed, without deciding, that the Minister's discretion is unfettered and that if the Minister fettered that discretion that would give rise to relief under ss 476(1)(d) or (e). 107 The appellant relied upon decisions of judges of this Court in Aksu v Minister for Immigration & Multicultural Affairs [2001] FCA 514 (Dowsett J), Ruhl v Minister for Immigration and Multicultural Affairs (2001) 184 ALR 401 (Cooper J); Jahnke v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 268 (Drummond J) and Andary v Minister for Immigration & Multicultural Affairs [2001] FCA 1544 (Dowsett J). 108 In Aksu, the Minister made a decision under s 501(2). Dowsett J said that Direction No. 17, which was in the same terms as in this appeal, was inconsistent with the statutory intention in s 501 that the discretion be unfettered. However, he accepted that that finding did not dispose of the question whether the Minister's decision could be sustained. He referred to the advice given the Minister in that briefing paper which was: '[5] If you are satisfied that Mr Aksu does not pass the character test, you must still consider the exercise of your discretion not to cancel his visa. In exercising your discretion you must consider the Minister's Direction no 17 made under section 499 ("the Direction") of the Migration Act 1958. The Direction is binding as to the weight to be accorded to certain matters and the considerations which should be included in your deliberations.' (Emphasis added.) 109 Dowsett J also referred to further advice in the briefing paper in relation to other matters which is in the same terms as the advice in [24] of the minute in this matter. He said at [34]: ' The Minister's adoption of the briefing paper implies his adoption of the "binding" nature of the Direction as to weight. It was submitted that he should be taken to have known that he could depart from the Direction should he so choose and to be aware of his own powers. However if that were so, and if he had turned his mind to the matter, one would think that he would have perceived the need to make it clear in his reasons that he did not consider himself to be so bound. He would not then have adopted the briefing paper. It is an inescapable conclusion of his adoption of it that he proceeded in accordance with it. This must inevitably have included acceptance of the allegedly "binding" nature of the Direction. It follows that he has inappropriately fettered his discretion by assuming that each primary consideration bore at least as much weight as each other consideration, regardless of the facts of the case. In my view this fettering of the discretion constituted an error of law for the purposes of par 476(1)(e) of the Act.' 110 The Minister, in the minute the subject matter of this appeal, was not advised that Direction No. 17 was binding. Indeed, he was correctly advised that he was not bound by that direction. He was also advised that whilst it was open to him to be guided by the factors referred to in the direction, he was free to place whatever weight he regarded as appropriate on those factors. The advice given the Minister in the minute under consideration on this appeal is quite different from that given to the Minister in Aksu. 111 In Ruhl the minute to the Minister stated: ' [5] If you are satisfied that Mr RUHL does not pass the character test you must consider the exercise of your discretion to decide whether Mr Ruhl should be permitted to remain in Australia. In exercising your discretion you should consider the guidelines of your Direction No 17 made under s 499 of the Migration Act 1958. While you are not bound by the section 499 direction on character in relation to exercising your discretion, it is a useful guide for the matters that you should consider and contains three primary considerations and a number of other relevant considerations that need to be addressed.' 112 The paragraph relating to 'Other Considerations' was in the same terms as the minute in this matter and Aksu. 113 The primary advice in Ruhl was also different from that offered in this case. In Ruhl the Minister was advised that he was not bound by Direction No. 17 'on character', not that he was not bound at all. He was not advised, as he was in making his decision the subject of this appeal, that he was free to place whatever weight he regarded as appropriate on the factors referred to in Direction No. 17. 114 The directions given the Minister in Jahnke and Andary were in exactly the same terms as that given in Ruhl. In Jahnke, Drummond J agreed with Dowsett J that Direction No. 17 was an unlawful fetter on the discretion conferred by s 501(2). However, he accepted that whether the Minister did allow his discretion to be fettered by Direction No. 17 was a matter of fact. 115 Therefore, in those cases, the judges concluded that the minute, issues paper or briefing paper delivered to the Minister in its structure inevitably led the Minister to adopt the relative weights in relation to each of the matters under consideration prescribed by Direction No. 17. In those cases, the judges concluded that the Minister had adopted the policy contained in Direction No. 17 which had the effect of fettering the unfettered discretion. 116 Whitlam J declined to follow the decision in Aksu v Minister for Immigration & Multicultural Affairs and Ruhl v Minister for Immigration & Multicultural Affairs because he thought the decision in Aksu was wrong: Turini v Minister for Immigration & Multicultural Affairs [2001] FCA 822. 117 In Turini, Whitlam J was concerned with an appeal from a decision of the Administrative Appeals Tribunal (AAT). The AAT had affirmed a decision of the Minister refusing to grant a visa under s 501(1) of the Act. In its decision, the AAT said that it was bound to apply Direction No. 17 and considered Direction No. 17 in light of the submissions made on behalf of the applicant/appellant. The AAT then considered the question of the exercise of discretion, again, having regard to Direction No. 17. 118 Whitlam J concluded that Direction No. 17 did not fetter the Minister's or the AAT's discretion under s 501(1). He therefore did not need to consider whether, as a matter of fact by adhering to the injunctions in Direction No. 17, the Minister or the AAT allowed his or its discretion to be fettered. 119 In Javillonar v Minister for Immigration and Multicultural Affairs, Stone J agreed with the decisions in Aksu and Ruhl, insofar as those cases stood for the proposition that Direction No. 17 did fetter the discretion of the Minister's delegate: [38]-[42]. 120 However, insofar as Direction No. 17 applied to the Minister, Stone J noted that Direction No. 17 was not binding upon the Minister. 121 Her Honour then had regard to the precise terms of the brief delivered to the Minister and compared that brief with those delivered in Aksu and Ruhl, which she noted were materially different. She said: ' The differences, however, between the brief considered by the Minister in this case and those in Aksu and Ruhl are crucial. The present brief does not specify, either directly or indirectly, the relative weight to be attributed to the various factors it considers. Its adoption by the Minister as his reasons does not reveal the weight that he attributed to those factors. Nor is there any obligation on the Minister to provide that information. Section 25D of the Acts Interpretation Act … imposes an obligation to set out findings on material questions of fact and to refer to the evidence or other material on which those findings are based. It does not impose any obligation to disclose the relative weight attributed to the factors under consideration. In summary, the problem with Direction 17 is that, contrary to s 499(2), it is inconsistent with the unfettered discretion given in s 501 because it purports to predetermine the relative weight to be given to various factors without the necessity of independent consideration of the relevant case. In the absence of any indication of the weight attributed to the factors relevant to Mr Javillonar's case, I am unable to conclude that the Minister did not give the necessary independent consideration to the relevant factors and therefore the ground of review under s 467(1)(e) is not made out.' 122 Except for Turini v Minister for Immigration & Multicultural Affairs, the decisions at first instance stand for the proposition that Direction No. 17, in its terms, insofar as it commands obedience from the Minister's delegates or bodies having functions or powers under the Act, fetters the unfettered discretion given to those persons or bodies to whom the direction is given. 123 In our opinion, those decisions are correct. Direction No. 17, in its terms, does fetter the discretion given to decision-makers to whom Direction No. 17 may be directed in a number of ways. 124 Paragraph 2.2 of Direction No. 17 enjoins the decision-maker to have regard to the three primary considerations, which the direction says cannot be less important than any individual considerations. 125 The primary considerations referred to in Direction No. 17 are matters to which the decision-makers would ordinarily have regard. But, so also would the decision-maker have regard to the individual considerations applying to the applicant for a visa or the visa holder. It may be that in some cases the individual considerations would outweigh the primary considerations. Insofar as Direction No. 17 requires the decision-maker to give greater weight to the primary considerations, Direction No. 17 fetters the discretion given to that decision-maker. 126 The last sentence of paragraph 2.2 does not save the direction. 127 Moreover, the direction, read as a whole, does not recognise that the decision-makers, to whom the direction is delivered, have an unfettered discretion subject to the policy of the Act which should be exercised having regard to all of the relevant circumstances. The weight which is to be given to any particular matter is a matter for the decision-maker and cannot be the subject of some ritualistic formula. 128 We agree with those authorities which have held that Direction No. 17 does purport to fetter the discretion of the decision-makers to whom it is directed. Accordingly, we disagree with Whitlam J's decision in Turini. 129 However, that is not an end of the matter as the judges in the earlier cases have recognised that wherever the Minister exercises the power under s 501, after having been directed to the Minister's own direction in Direction No. 17, it will be a question of fact whether the Minister has proceeded in a way that demonstrates that the Minister has fettered the Minister's own discretion. 130 Ordinarily, the Minister's reasons will disclose whether the Minister has proceeded in a way inconsistent with an unfettered discretion. However, where the Minister has not given reasons, as in this case, whether or not the Minister has fettered the Minister's own discretion must be determined by reference to the minute which has been provided to the Minister, and any other surrounding circumstances relevant to the question of how the Minister has exercised the discretion. 131 The Minister is entitled to have regard to the matters contained in Direction No. 17 to remind the Minister of the matters which are relevant to the exercise of the discretion under s 501 but if the minute or the surrounding circumstances or a combination of both show that the Minister has slavishly adhered to Direction No. 17 without applying an independent mind, then it would be appropriate to find that the exercise of the discretion has miscarried. 132 In the cases to which we have referred, the briefing notes or the minutes have demonstrated that the Minister was likely to have been misled to the use to which Direction No. 17 could be put in considering the application before the Minister. 133 The briefing notes show that in one case the Minister was wrongly advised that the direction was binding as to the weight to be accorded to certain matters and the considerations which should be included in the Minister's deliberations. In other cases, the Minister was misled because he was advised that the direction was not binding on character in relation to the exercise of the discretion. The Minister was not advised that it was not binding at all. 134 In our opinion, this case is like that considered in Javillonar and there is no evidence that the Minister has wrongly assumed that he was bound by Direction No. 17 or wrongly proceeded upon the basis that he was so bound. 135 In this case, the Minister was advised that the direction was not binding. Further, he was advised that it was open to him to be guided by the factors set out in the direction but, in the end result, the balancing of those factors was a matter for him and he was free to put on those factors whatever weight he thought appropriate. 136 In our opinion, the advice given to the Minister was correct and, in the absence of any other evidence, it cannot be assumed that the Minister failed to act upon that advice in reaching his decision. There is simply no evidence to suggest that the Minister approached his decision otherwise than on the basis that his discretion was unfettered. 137 In our opinion, the second ground of appeal also fails. 138 For all of these reasons, the appeal must be dismissed. The appellant must pay the respondent's costs. I certify that the preceding one hundred and thirty-eight (138) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Court.

Solicitor for the Respondent: Australian Government Solicitor

Migration Legislation Amendment (Judicial Review) Act 2001(Cth)

Migration Act 1958(Cth)ss 499, 501, 501G

At a glance

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Before

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Judgment (11 paragraphs)

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Legislation Cited (2)

Cases Cited (15)