Jahnke v Minister for Immigration & Multicultural Affairs

(a) TOSCA LOUISE JAHNKE does not pass the character test, has been unable to satisfy me that he (sic) does pass the character test and in the exercise of my discretion, I CANCEL the visa.

5 The paragraph secondly numbered (a) and paragraph (b) contain other decisional options put up for the Minister's consideration, which he rejected. 6 The authors of the memorandum, under the heading "Consideration of Visa Cancellation", advised the Minister:

"It is open for you to find on the above facts that there is a reasonable suspicion that Ms Jahnke fails the Character Test on the basis of her criminal record."

7 The "above facts" were limited to the applicant having been sentenced by the Supreme Court of Queensland on 13 April 2000 on nine charges of supplying heroin to three years' imprisonment on each charge, suspended for five years after serving nine months. That is, the authors confined their attention to s 501(6)(a) in expressing this opinion. What amounts to "a substantial criminal record" in s 501(6)(a), which will prevent a person passing the "character test" in s 501(1) and (2), is exhaustively defined by s 501(7). Unlike the other independent elements of the "character test" prescribed in s 501(6)(b) to (d), a determination by the Minister that a person does not pass the "character test" because they are within s 501(6)(a) does not involve the formation of any opinion or judgment. Though the applicant only served an effective nine months for the total of nine drug offences, she necessarily failed to pass the "character test" by reason of the fact of her being sentenced to more than twelve months' imprisonment on the occasion in April 2000: see s 501(6)(a) and 501(7)(c). Thus it was common ground that the applicant's criminal record was such as to enliven the discretion conferred on the Minister by s 501(2) to cancel the applicant's visa. 8 In a long section of the memorandum under the heading "Discretion", the authors summarised a number of considerations for the Minister to take into account in making his decision and the information relating to each consideration. At the commencement of the section of the memorandum under this heading, "Discretion", the following appears in par [5]:

"If you are satisfied that Ms Jahnke does not pass the character test you must consider the exercise of your discretion to decide whether Ms Jahnke 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."

9 The memorandum was structured around Direction No. 17. The Minister's Direction No. 17 is, by force of s 499(2A), binding on each of his officers with delegated authority to exercise the powers the subject of the Direction. But the authors of the memorandum correctly drew the Minister's attention to the fact that it was not binding upon him. See Damanik v Minister for Immigration and Multicultural Affairs [2000] FCA 771 at par [10] and Baulch v Minister for Immigration and Multicultural Affairs [2001] FCA 139 at par [21]. 10 Direction No. 17 was issued by the Minister on 16 June 1999. As is recorded in the Preamble, it is directed to both the Minister's delegates for the purposes of s 501 of the Act and members of the Administrative Appeals Tribunal when conducting a review of a decision made under s 501. The Preamble also states:

"This Direction provides guidance to decision-makers in making decisions to refuse or cancel a visa under section 501 of the Migration Act 1958 (the Act).

The Act enables the Minister to give precise written directions on what weight is to be given to each of these factors. These directions are binding to all decision-makers, including merits review tribunals, to ensure a consistency of approach."

"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."

12 Paragraph 2.2 of the Direction is neither set out nor referred to in the memorandum upon which the Minister made his decision. However, par [31] of that memorandum repeats the critical wording of par 2.17 of the Direction which is as follows:

"[31] 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."

13 This is a precis of the point made in par 2.2 of the Direction. 14 Whether the Minister did arrive at his decision to cancel the visa by voluntarily complying with the Direction is a question of fact for the Court to determine. It is apparent from the contents of his officers' memorandum, structured as it is around Direction No. 17, that he arrived at his ultimate decision adverse to the applicant by taking into account the three primary considerations in Direction No. 17 dealt with at length in pars [7] to [30] of the memorandum and certain other considerations also identified by reference to Direction No. 17 and dealt with in pars [31] to [40]. Though the Minister was expressly reminded in par [5] of the memorandum that Direction No. 17, with its comments about the binding nature of the directions therein contained as to weighting, was not binding on him, he was there told he should consider "the guidelines of [his] Direction No. 17" as "a useful guide for the matters that [he should consider in exercising his discretion]". He was reminded in par [31] of the Government's view, set out in pars 2.2 and 2.17 of Direction No. 17, about how the three primary and the other considerations should be weighted between themselves. He stated, in endorsing the memorandum with his decision to cancel the visa, that he had considered "all relevant matters" (a statement apt to refer to his officers' comments in the memorandum, including par [31]) and "Direction No. 17". That is an indication that the Minister, in arriving at his ultimate decision, considered the matters identified in the memorandum and evaluated them in accordance with the Direction. There is no indication to the contrary in the material before the Court. It is open to the Minister, if he wishes, to file affidavit evidence in this Court explaining how he arrived at his conclusion. He has not done that. In this state of the evidence before the Court, I therefore infer that, in making his decision to cancel the visa, the Minister adopted the approach to weighting, in balancing the primary and other considerations, that was set out in pars 2.2 and 2.17 of the Direction and recommended to him in pars [5] and [31] of the memorandum. 15 In Aksu v Minister for Immigration and Multicultural Affairs [2001] FCA 514, Dowsett J set aside the Minister's decision to cancel a visa under s 501(2) for the reason that the Minister had there applied Direction No. 17. The Direction was invalid, his Honour held, because it was inconsistent with the Act in so far as it purported to fetter the Minister's discretion under s 501(2) by prescribing that greater weight was always to be given to "primary considerations" in comparison to "other considerations" in every case. Dowsett J reviewed relevant authorities on the role of policies in administrative decision-making, such as Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 and Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 50 FCR 189, which confirm the place of policies as guides to the exercise of generally worded statutory discretions, but which emphasise that a policy will be unlawful as imposing an impermissible fetter on the exercise of the discretion if it precludes consideration of the merits of the particular case by reference to all the relevant circumstances. His Honour pointed out [par 25] that the policy upheld as valid in Bustescu v Minister for Immigration and Multicultural Affairs [1999] FCA 1713 did not contain a provision like that in par 2.2 of Direction No. 17 to the effect that "no individual consideration can be more important than a primary consideration". The policy considered in Gray was identical in this respect. His Honour said:

"21. There is little valid distinction for present purposes between protection of the Australian community and the expectations of the Australian community [ie, the first two primary considerations in Direction No. 17]. Each is really a function of the seriousness of the person's history of misconduct. Nonetheless the factors which are identified as relevant are generally fair and reasonable, if repetitive. A matter of concern, however, is the use of categories (primary and other considerations) and the prescription that:

… no individual considerations can be more important than a primary consideration, but … a primary consideration cannot be conclusive in itself in deciding whether to exercise the discretion to refuse or to cancel a visa.

22. This appears to mean that in every case, considerations concerning protection or expectation must be treated as at least equally important as any non-primary consideration, without regard to the facts of the case. Elsewhere, the Direction invites a balancing exercise which would normally involve an assessment of all relevant factors, having regard to their significance in the case in question. The Direction appears to fetter that process to the extent that it prescribes that some factors can never have more weight than others.

23. The qualification that 'a primary consideration cannot be conclusive in itself' is of little effect. Two primary considerations, protection and expectations will be present in almost all cases, militating in favour of refusal or cancellation of the visa. Where there are two primary considerations, and no other consideration can have more weight than either of them standing alone, an almost mathematical logic compels a decision which upholds those primary considerations. Further, as the primary considerations are really direct outcomes of the person's bad character, the effect is that once he or she fails the character test, there is virtually a prescription in favour of refusal or revocation of the visa. This is inconsistent with the unfettered discretion conferred by s 501.

24. It is one thing to say that some factors should generally be treated as more important that others. This is the situation with which Sackville J was concerned in Bustescu. It is quite another thing to say that a particular consideration must always be treated as at least equally important as another consideration without regard to the facts of the case. Section 501 prescribes failure to satisfy the character test as a condition precedent to the exercise of the discretion to refuse or cancel. It does not create any presumption as to the way in which that discretion should be exercised. The unfettered nature of the discretion inevitably implies that in particular circumstances any one factor may, at least theoretically, outweigh any other possibly relevant factor."

16 In Ruhl v Minister for Immigration and Multicultural Affairs [2001] FCA 648, Cooper J followed Aksu. He found that the Minister had voluntarily applied Direction No. 17 in exercising his discretion under s 501 and then turned to the critical question whether, by doing that, the Minister had unlawfully fettered the exercise of the discretion confided to him, saying:

"37. I agree with Dowsett J for the reasons that he has given that Direction No 17 is 'inconsistent with the intention contained in s 501 that the discretion be unfettered'.

39. In the present case as appears from the decision record and the Minister's correspondence, the Minister has not merely chosen to place more weight upon the primary considerations than upon the other matters having regard to the facts of the case. He has accorded pre-eminence to the primary considerations and denied the possibility that the other matters particular to the circumstances of the applicant were entitled to greater importance than a primary consideration in the exercise of an unfettered discretion under s 501 of the Act. He has adopted this course because he applied the policy contained in Direction No 17 which directed such an approach to the exercise of the discretion.

40. In my view, the fettering of the discretion constituted an error of law for the purposes of s 476(1)(e) of the Act."

17 I also agree with Dowsett J in thinking that this provision in Direction No. 17 is an unlawful fetter on the generally worded discretion conferred on the Minister by s 501(2). When his Honour described the discretion conferred by s 501 as "unfettered", he must, I think, be understood as saying that it was not fettered by any express limitation. It is well-established that a statutory discretion which in its terms is unconfined must, nevertheless, be exercised by reference to considerations identified by implication from the subject matter, scope and purpose of the statute. See Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39 - 40. The vice in the provision in question in the Direction is that it is an express fetter on the discretion conferred by s 501(2). As a matter of construction of the section, the Minister retains a discretion under s 501(2) not to cancel a visa even though the visa holder has committed an offence or offences that have attracted the severest punishment imposable. The risk to the Australian community of allowing the person to remain a member of it cannot be assessed in every case in which the power comes to be exercised to outweigh all other considerations of the particular case. It may well be difficult to envisage a case involving a person convicted of a most serious crime or a person with a long criminal history in which non-cancellation may be justified. Nevertheless, the discretion still remains. The Minister cannot lawfully prevent such an outcome from ever taking place by adopting Direction No. 17 in its present form. The importance of recognising the true nature of the power conferred by s 501 is underlined by the fact that the exercise of the discretion is not confined to persons who have demonstrated, by the circumstances in which they have been convicted or otherwise, that they are engaged in activities involving a high degree of criminal conduct. As this case demonstrates, the statutory discretion, if properly exercised, can be invoked to remove from the Australian community drug addicts who have engaged in limited and relatively low level criminal activity here. Hayne J, in Truong, Ex parte - Re Ruddock, Minister for Immigration and Multicultural Affairs M14/2001 (22 March 2001), records a statement by a spokesman for the Minister to the effect that permanent residents sentenced to jail for twelve months or more are automatically looked at for deportation. Criminal conduct ranging widely in its degree of seriousness is thus reviewed for the purpose of determining whether the power in s 501 should be exercised against the person involved. But the discretionary power must always be exercised according to law, by reference to all the relevant circumstances of the individual case. For example, the organiser of major heroin importations is engaged in a much more serious level of criminal activity than is an addict who deals only in small quantities of heroin at street level to feed her addiction. When the question is whether the power in s 501 should be exercised against the person concerned, factors favouring non-cancellation of the person's visa may count for little in the former case, but may well be entitled to much more consideration in the latter. 18 Paragraphs 2.2 and 2.17 of the Direction impose an unlawful fetter because they lay down a general rule that, in no case, can a non-primary consideration telling against cancellation of a person's visa under s 501 be given more weight than any of the three primary considerations, no matter how powerfully that non-primary consideration may favour allowing the particular person to retain the visa. It will often, though not invariably, be the case that the first two primary considerations will both tell in favour of cancellation of the visa. In all such cases, and particularly in cases where the visa holder's criminal conduct is in the lower range of seriousness (though still such as to enliven the discretion to cancel), by force of the weighting requirement of the policy a powerful other consideration strongly favouring non-cancellation will never be able to be acted on to that effect by the Minister who elects to apply the policy (or by his delegate who is bound to apply the policy). This is so even though par 2.2 of the Direction, in stating that "no individual considerations can be more important than a primary consideration", goes on to say 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."

19 No matter how powerfully a non-primary consideration may point to non-cancellation of the person's visa and no matter how scrupulously the decision-maker may obey the Direction to take into account in the balancing process all considerations, that non-primary consideration could never outweigh any of the primary considerations where they favour cancellation. 20 While I agree with Dowsett J's conclusion in Aksu that, because of par 2.2 of the Direction, the policy in it contains an unlawful fetter on the statutory discretion conferred by s 501(2), I do not, however, agree with all his Honour's reasoning. In Turini v Minister for Immigration and Multicultural Affairs [2001] FCA 822, Whitlam J declined to follow Aksu and Ruhl and held that Part 2 of Direction No. 17 (the Part the subject of the decisions in those cases), was not inconsistent with s 501(2). His Honour set out pars [22] to [24] of Dowsett J's reasons in Aksu and said:

"29. As a matter of judicial comity, I am naturally inclined to follow the decision in Aksu, but I regret to say that I think it is wrong. I do not agree that the primary considerations are 'direct outcomes' of a person failing to satisfy a decision-maker that the person passes the character test. First of all, the third of the primary considerations may not be ignored, although it may have no application in some cases. More importantly, the factors relevant to the first primary consideration are not exclusively stated in paragraph 2.5 of the direction, as the word 'include' indicates. A person may not pass the character test and yet be able to demonstrate that he or she presents no risk to the community. In my opinion, there is ample scope for an individual's particular circumstances to be advanced under the rubric of the primary considerations so that the balancing process mandated by Direction No. 17 will not fetter the discretion under s 501(1) of the Act.

30. It follows that, in my view, Direction No. 17 was a valid direction under s 499(1) of the Act, with which the Tribunal was bound to comply."

21 I agree with Whitlam J that the primary considerations in the policy are not "direct outcomes" of a person failing to satisfy a decision-maker that the person passes the "character test". For example, the application of the first primary consideration - "Protection of the Australian community" - to a person who has been found to be not of good character because of a conviction within s 501(7)(c) will not necessarily lead to the conclusion by the decision-maker that there is an unreasonable risk to the Australian community if the person is allowed to remain here. In some cases, proper effect may be able to be given to an individual's particular circumstances within the first two primary considerations, as Whitlam J suggests. But that will not always be the case. There may be cases in which evaluation of the circumstances relevant to the first two (or even to all three) primary considerations may, with varying degrees of cogency, favour visa cancellation, but one or more non-primary considerations may so strongly favour non-cancellation as properly to be regarded as requiring that result; yet the decision-maker who is bound by, or who as Minister voluntarily applies, the Direction would be prevented by the fetter on the statutory discretion contained in par 2.2 of the policy from declining to cancel the visa. 22 The Minister's decision is, for these reasons, reviewable for error of the kind asserted in grounds 1 and 2 of the application. But that is not the end of the matter. 23 As Commonwealth of Australia v Human Rights and Equal Opportunity Commission (1998) 76 FCR 513 (FC) at 519 shows, it is not every reviewable error by the administrative decision-maker that will justify the setting aside of the decision. But if it appears from materials before the Court that the error could have affected the outcome of the case, then the decision must be set aside and the matter remitted for reconsideration. This test sets only a low hurdle to be overcome by an applicant who has been successful in demonstrating reviewable error on the part of the decision-maker: if the Court were too ready to hold that an identified error could not have affected the decision so that relief should be refused despite the error, that would very likely mean that the Court was trespassing into the area of giving effect to its own view of the merits of the case. 24 Counsel for the applicant expressly acknowledged that the various considerations set out in the memorandum which the Minister should be accepted as having taken into account in this case were each relevant to the exercise by him of his statutory discretion under s 501(2) and that there was no consideration not mentioned in the memorandum which the Minister should have taken into account in the circumstances of this case. 25 In the section of the memorandum under the heading "Other Considerations", the fact that the applicant now has no relatives or family in New Zealand and the impact that deportation to New Zealand would, for that reason, have on her was identified. But though the relevant facts were set out in the introductory section of the memorandum under the heading "Personal Details", this section of the memorandum, "Other Considerations", did not identify as a relevant other consideration that needed to be taken into account the fact that, in addition to having no ties in New Zealand, the applicant has spent practically the whole of her life in this country. (It appears that her adoptive parents, who separated in 1983, were naturalised as Australian citizens along with the applicant's brother in 1981. However, due to difficulties in finalising their New Zealand adoption of the applicant, she was not herself naturalised, before her parents separated, when she was five years old. Naturalisation was not pursued thereafter.) 26 Length of residence here must, I think, be a consideration which the decision-maker should take into account, at least in a case such as this where the convictions that have enlivened the discretion conferred by s 501(2) and the person's other criminal conduct are at the lower end of the scale of criminal behaviour. Cf Aksu at par [33]. The memorandum notes the comment by the sentencing judge in April 2000 to the effect that the applicant was "at the bottom end of the structure for supply of heroin" as a person who supplies in order to feed her addiction. The authors also annexed to the memorandum the applicant's criminal history and commented that:

"On the basis of Ms Jahnke's criminal history it is open to you to find that her conduct against the community is serious."

27 Her criminal record prior to being dealt with by the Supreme Court in April 2000 was confined to a small number of minor drug offences for some of which no conviction was recorded, though fines were imposed, and for others, she was convicted and fined or ordered to perform a number of hours of community service. The sentencing judge described this prior criminal record as "the sort of history consistent with people who suffer from long-term addiction", a comment not recorded in the memorandum but which qualifies in a significant way what was said in the memorandum about the applicant's criminal history. 28 Further, it appears from the judge's sentencing remarks that the applicant provided useful assistance to the police in that she was prepared to give evidence, at possible risk to herself, against her own supplier, a woman described by the judge as a person "further up in the hierarchy who was not an addict and who led a much more extravagant lifestyle than your own". This higher level supplier was sentenced to seven years' imprisonment. The memorandum does not note this matter as a relevant consideration to the exercise of the statutory discretion, as I think it should have in the circumstances of this case. Cf Ruhl at par [41]. 29 Length of residence in Australia may well have but little weight if the person has committed a single, extremely serious offence or has a long criminal record. But, in view of that factor here and the nature of the applicant's entire criminal history and her assistance to the authorities, it cannot be said that the Minister's error in treating the discretion under s 501(2) as fettered by the requirement to treat the primary considerations as having more weight than all the other considerations could ever have, may not have affected the decision. 30 The third ground upon which review of the decision was sought was that there was no evidence or other material to justify the making of the decision in so far as there was an absence of material to support the finding the Minister can be taken to have made on the third of the three primary considerations, "the best interests of the children", to the effect that "cancellation of Ms Jahnke's visa and her removal from Australia may have a minimal effect on the child". I understand this to be a finding that visa cancellation would have, or might only have, nothing more than a minimal effect on the applicant's young child. 31 The applicant's argument is untenable though the Minister can be taken to have attached importance to this view of things, given that it was his conclusion with respect to one of the three primary considerations. There was material before the Minister to the effect that the applicant's child had long been in a settled relationship under the care of the applicant's mother and stepfather as a result of decisions taken by the applicant in the past to place the child with them. Though there was information before the Minister the other way which is recorded in the memorandum, the preponderance of the material before the Minister on this issue, emanating from the applicant herself and her mother, was to the effect that the applicant, having years ago made the decision to place the child in her own mother's care, regarded continuance of that arrangement in the long term as being in the child's best interests. There was material before the Minister to support the finding in question. 32 But if the Minister had not accepted the constraint imposed by the Direction on how he evaluated the primary considerations and the other considerations, the outcome of the case could have been different. 33 The decision will be set aside and the matter referred back to the Minister for re-consideration.

I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Drummond.

Solicitor for the Respondent: Blake Dawson Waldron