Consideration
32 The Full Court in FYBR considered an earlier iteration of Direction No. 90, namely Direction No. 65 that was given by the Minister on 22 December 2014. The essential structure and approach of Direction No. 90 is much the same as Direction No. 65. The earlier Direction also identified primary and "other" considerations. Like Direction No. 90, one of the primary considerations was the expectations of the Australian community. Much of the wording of the relevant paragraphs (paras 6.3 and 11.3) of Direction No. 65 is the same or similar to that in para 8.4 of Direction No. 90, except that the latter Direction is even clearer in material respects, its changed wording having been apparently based in part on the decision in FYBR.
33 Relevantly, in FYBR it was held (by Charlesworth and Stewart JJ in separate judgments, Flick J dissenting) that the relevant clause:
(1) expresses an expectation deemed by the Government to be held by the Australian community and that it is not the role of the decision-maker to undertake an assessment of what the community expectations are in each case (at [61], [66]-[67] and [75] per Charlesworth J and [86], [97], [101] and [103]-[104] per Stewart J); and
(2) gives expression to an expectation that must of its nature weigh against the grant of a visa in every case (at [75] per Charlesworth J and [86] and [101]-[102] per Stewart J).
34 It was also held that it is up to the decision-maker, after having considered the primary and other considerations, to reach their own view as to whether the non-citizen should or should not be granted a visa or, in the case of a revocation decision, whether or not the cancellation of the non-citizen's visa should be revoked (at [73] and [79] per Charlesworth J and [92] and [105] per Stewart J). That is to say, although Charlesworth J held that the deemed expectation of the Australian community is that if the non-citizen fails the character test they will have their visa refused or cancelled (at [72] and [75]) and Stewart J disagreed and held that the deemed expectation is that failing the character test will be held against the non-citizen but that the expectation does not speak to the outcome in any given case (at [97] and [103]), the majority were agreed the expectations of the Australian community, as expressed by the Government in the Direction, do not determine the outcome of the decision because all relevant factors have to be weighed up and considered.
35 Direction No. 90 is consistent with the above, save that it is even clearer in certain respects. First, it makes it express in paras 8.4(1) and (2) that the expectation of the community is not that failure of the character test should result in the non-citizen being denied a visa or their visa being cancelled - that expectation is confined to the particularly egregious types of cases set out in para 8.4(2). The character test as expressed in ss 501(6) and (7) of the Act can be failed on lesser bases. Secondly, para 8.4(4) expressly provides that "decision-makers should proceed on the basis of the Government's views" as articulated in the Direction, "without independently assessing the community's expectations in the particular case" (emphasis added).
36 On that analysis, there are on the face of it two errors by the Tribunal evident in [63] (quoted at [26] above). First, the Tribunal independently assessed the community expectation. Secondly, the Tribunal concluded that this factor would weigh in favour of revocation of the decision to cancel the respondent's visa.
37 The submissions on behalf of the respondent advance four reasons why it should be concluded that the Tribunal did not make a jurisdictional error in the respects identified.
38 First, it is submitted on behalf of the respondent that the use of the word "should" in para 8.4(4) has the result that that paragraph does not impose a mandatory requirement. In support of that submission, attention is drawn to Williams v Minister for Immigration and Border Protection [2014] FCA 674; 226 FCR 112 at [34]-[41] where it was identified that some of the provisions of the Direction are mandatory and others are expressed only to offer guidance. The respondent draws attention to the use of the word "must", eg, in para 6 which provides that a decision-make "must" take into account the primary and other considerations where relevant to the decision, compared to the use of "should" in para 8.4(4).
39 It is correct that the Direction sets out guiding and mandatory considerations, ie, that not all of what it says is mandatory. In Williams, Mortimer J observed (at [39]-[40]) that the parts of the Direction there under consideration headed "General Guidance" and "Principles", which loosely correspond with the "Objectives" (para 5.1) and "Principles" (para 5.2) sections of Direction No. 90, purport to offer "guidance" only, but that the remainder of the Direction is intended to, and does more than, "offer guidance". Her Honour held that the Direction prescribes, to a significant extent, how the relevant discretion is to be exercised. That analysis applies equally to Direction No. 90.
40 It is to be observed that s 499(2A) of the Act, as mentioned, provides that a person or body "must" comply with a direction given under s 499(1) - reference is expressly made to that requirement in para 5.1(4) of Direction No. 90. Also, the Direction provides that the decision-maker "must", amongst other things, consider the expectations of the Australian Government as expressed in the Direction (para 5.2(4), 5.2(5) and 6 read with 8.4(4)), and that expression of the expectations applies as a "norm" (para 8.4(1)). In that context, "should" in para 8.4(4) is indicative of a requirement that must be followed; it is mandatory. That is because it would be inconsistent to read, for example, para 6 as being mandatory because of its use of the word "must", with the result that the relevant consideration must be taken into account, but reading para 8.4(4) as merely offering guidance thereby permitting the decision-maker to arrive at its own view or assessment of what the expectations of the Australian community are. It is to be noted that one of the meanings of "should" is to convey duty or obligation rather than merely guidance: Oxford English Dictionary online version, "shall" (meaning no. 18.a). Reading "should" as indicating only guidance would also be inconsistent with what was held in FYBR, and the acceptance by the Court in FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 19 at [6] that a failure to comply with the relevant Direction's express requirements as to the conditions to be brought into account and the manner in which those considerations were to be weighed in deciding whether to revoke a visa cancellation would be jurisdictional.
41 Secondly, it is submitted on behalf of the respondent that at [63] the Tribunal was not itself making an assessment as to community expectations, but was rather saying that the community expectations as deemed had to be balanced against "the fact" that the respondent is mentally unwell.
42 That submission cannot be accepted because it is contrary to the language employed by the Tribunal. The Tribunal expressly stated in [63] that "the community expectation … would balance such feelings [ie, deploring the applicant's offences] with the fact that the applicant is … mentally unwell". The respondent's contended for reading of the sentence is not available on this language.
43 Thirdly, it is submitted on behalf of the respondent that the Direction does not forbid the Tribunal from having regard and giving weight to its own views or its own assessment of community expectations "outside the prism of paragraph 8.4". Attention is drawn to para 9(1) of the Direction which requires the Tribunal to take account of "other considerations" where relevant, and that such considerations are not limited to the four identified "other considerations" in that paragraph.
44 Leaving aside whether the Tribunal can permissibly have independent regard to community expectations as assessed by it, which must be considered at least doubtful given the Direction's express provisions with regard to that subject which can be expected to cover the field, the submission fails on the facts. That is because the Tribunal did not take account of its own assessment of community expectations "outside the prism of para 8.4(4)". On the contrary, it made its own assessment of community expectations expressly within the context of its consideration of para 8.4. That is a clear error.
45 Finally, it is submitted on behalf of the respondent that the error, if it is that, is not material, and therefore does not amount to jurisdictional error, because whether the Tribunal took into account the respondent's mental illness in its consideration of community expectations or as an "other consideration", it still gave the fact that the respondent is mentally unwell greater weight than the Government's views as set out in para 8.4. It is said that the alleged error therefore made no difference to the ultimate outcome.
46 The relevant inquiry is whether the decision that was made by the Tribunal could have been different had the error not been made "as a matter of reasonable conjecture within the parameters set by the historical facts that have been determined": MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; 390 ALR 590 at [38]. With reference to that passage, it was explained in Nathanson v Minister for Home Affairs [2022] HCA 26; 403 ALR 398 at [33] that the standard of "reasonable conjecture" is "undemanding".
47 It will be recalled that at [87] (quoted at [28] above) the Tribunal weighed up the various considerations, ascribing a weight of "strongly in favour of revocation" to the consideration in question. The next best consideration in favour of revocation was the best interests of minor children which was considered to be only "slightly" in favour of revocation. It hardly needs to be said that had the community expectations consideration been given a weighting against revocation as required by FYBR, or even a neutral weighting, the ultimate decision may have been different within the undemanding standard of materiality as expressed in Nathanson. The respondent may be right that the decision is likely to have been the same even if the error was not made, but it would not necessarily have been the same. The error was therefore material.
48 It follows that the Tribunal's errors in making its own assessment of community expectations in considering the primary consideration in para 8.4 and in giving that consideration a weighting in favour of revocation are jurisdictional.