QDWQ v Minister for Immigration, Citizenship and Multicultural Affairs

The legislative framework 15 Section 501(1) provides that the Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test. Subsection (6) lists a number of circumstances in which a person does not pass the character test. One such circumstance, contained in para (a), is where the person has a "substantial criminal record" as defined in subs (7). Subsection (7) relevantly provides that: For the purposes of the character test, a person has a substantial criminal record if: … (c) the person has been sentenced to a term of imprisonment of 12 months or more… 16 The Minister may delegate that power (s 496). A decision of a delegate is reviewable on its merits in the Tribunal (s 500(1)(b)). 17 No appeal lies from a decision of the Tribunal but a decision of this kind is reviewable for jurisdictional error (s 476A(2); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 at [87] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ).

Direction no. 99 18 The Direction requires decision-makers (other than the Minister) to take into account particular considerations, where relevant, when determining whether to exercise the power in s 501(1) to refuse to grant a visa. Those considerations are divided into "primary" and "other", the former of which "should generally be given greater weight" (Pt 2 para 7(2)). The primary considerations are set out in para 8. They are: (1) protection of the Australian community from criminal or other serious conduct; (2) whether the conduct engaged in constituted family violence; (3) the strength, nature and duration of ties to Australia; (4) the best interests of minor children in Australia; [and] (5) expectations of the Australian community. 19 The other considerations, which are not exhaustive, appear in para 9. They include: the legal consequences of the decision; the extent of impediments if removed; the impact on victims; and the impact on Australian business interests. 20 Paragraph 8.5 describes the expectations of the Australian community. It relevantly reads: (1) The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia. (2) In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind: a) acts of family violence; or … c) commission of serious crimes against women …; in this context, 'serious crimes' include crimes of a violent or sexual nature … … (3) The above expectations of the Australian community apply regardless of whether the non-citizen poses a measureable [sic] risk of causing physical harm to the Australian community. (4) This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case. 21 "Family violence" is defined in para 4(1) to mean violent, threatening or other behaviour by a person that coerces or controls a member of the person's family or causes the family member to be fearful. A "member of the person's family" is defined to include "a person who has, or has had, an intimate personal relationship with the relevant person". "Serious conduct" is defined in para 4(2) to include "behaviour or conduct of concern that does not constitute any criminal offence". Several examples are given. They relevantly include "intimidatory behaviour or behaviour that represents a danger to the Australian community" and "involvement in activities indicating contempt or disregard for the law or human rights".

The applicant's argument 22 The applicant's contention is that the Tribunal "assessed the weight of the factors under [this consideration] without regard to the applicant's personal circumstances", specifically the applicant's "refugee background", his ties to the Australian community through his family, and the prospect that an adverse decision would likely result in his "indeterminate and prolonged detention". He submitted: The Tribunal appears to have interpreted Primary Consideration 5 as something of a "deeming provision", such that the Australian community, through the Government, is only to take account of the negative factors which weigh against the grant of a visa. In this case the applicant's agent had specifically referred to the changing views of the Australian community to people of refugee background, especially those from Afghanistan, and (somewhat enigmatically) to the expectation that people be given a second chan[c]e and a "fair go". The "meat on the bones" to this contention, which ought to have been considered by the Tribunal to have weighed favourably for the applicant, were his specific personal circumstances, including his refugee background, his ties to the Australian community, and the prospect of indeterminate and prolonged detention. These were obviously relevant to Primary Consideration 5. 23 The applicant contended that the Tribunal thereby fell into jurisdictional error, relying on two judgments of this Court: Kelly v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 396 at [95], [100] (Beach J) and Ali v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 559 at [70]-[93] (Bromberg J). 24 In oral argument the applicant drew the Court's attention to several aspects of a submission made by his migration agent in response to the Minister's notice of intention to consider refusing the visa application. 25 The first was the observation that the applicant had been recognised as a refugee, could not therefore be removed to Afghanistan and consequently would be held indefinitely in immigration detention. 26 The second was a submission about para 8.4 of the earlier direction, Direction no. 90, which was in identical terms to para 8.5 of Direction no. 99. The submission read (without alteration): 8.4 Expectations of the Australian Community It is accepted that this consideration weighs against the applicant however we also note that views of the Australian community have changed and continue to change in regards to people of refugee background, especially those from Afghanistan, and that the Australian community also has an expectation that people are given a second change and a " fair go". 27 The third and fourth were submissions relating to one of the "other considerations": international non-refoulement obligations (para 9.1) and the applicant's ties to the Australian community (para 9.4), the latter of which has been elevated to a primary consideration in Direction no. 99. 28 The third concerned the impact on the applicant of prolonged or indefinite detention, which followed a discussion of Australia's non-refoulement obligations, the unlikelihood of the applicant's removal to a third country, and the likelihood of prolonged or indefinite detention. This submission was in the following terms (without alteration, footnote omitted): Impact of prolonged or indefinite detention on mental and physical health [40] [The applicant] fears that his prolonged or indefinite detention will have a significant and irreversible impact on his mental and physical health. This health impact has been established by studies commissioned by the Australian government. [41] Indefinite detention of [the applicant] would have a profound negative affect on his parents. Discussed below [42] [The applicant] is extremely anxious that his parents may pass away before he is released and this causes him incredible distress and grief. 29 The fourth was a submission about the applicant's links to the Australian community in which the agent pointed out that the applicant's entire family was living in Australia and that the majority were now Australian citizens. 30 In the applicant's Statement of Facts, Issues and Contentions signed by his solicitor and filed with the Tribunal, the applicant said in relation to primary consideration 5: 44. The Applicant relies on the previous submissions. 45. In addition, the Applicant draws attention to the Australian Values Statement required to be signed by all visa applicants. Those values, espoused as Australian values include a 'fair go', defined as embracing 'mutual respect; tolerance; compassion for those in need; equality of opportunity for all'. The Applicant also notes the guidance provided by then Chief Justice James Allsop. In a speech concerning values in the law he stated that those values are the 'essential human values' and are 'a rejection of unfairness and an insistence on essential equality; respect for the integrity and dignity of the individual; and mercy'. 46. The Applicant submits that according to these expectations and values it is open to the Tribunal to give him a second chance to demonstrate his rehabilitation. (Footnotes omitted.)

The Tribunal's approach 31 The first point to make is that the Tribunal did not err in treating primary consideration 5 as a "deeming provision". The applicant's "specific personal circumstances" were not relevant to primary consideration 5. Neither Kelly nor Ali is authority for that proposition. 32 Indeed, in Kelly at [72]-[73] Beach J rejected the argument put by the applicant in that case that it was not rational to consider community expectations without considering all the circumstances of the case and endorsed the statement of the decision-maker that the expectations of the Australian community are "not about what the community may expect in relation to the particular non-citizen having regard to their specific circumstances". That is the effect of para 8.5(4) of the Direction. 33 As the Tribunal correctly observed at [167]-[168]: Paragraph 8.5(4) of the Direction is consistent with the decision of the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185 ("FYBR") which affirmed the approach established in previous authorities that it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an [a]pplicant's circumstances or evidence about those expectations. The Tribunal is to be guided by the Government's views as to the expectations of the Australian community, which are to be found in the Direction. Paragraph 8.5 of the Direction contains a statement of the Government's views as to the expectations of the Australian community, which operates to ascribe to the whole of the Australian community an expectation aligning with that of the executive government which the decision maker must have regard to. (Footnote omitted.) 34 The Tribunal went on to say at [169]: Accordingly, in assessing the weight attributable to Primary Consideration 5, it is necessary to have regard to the following matters: (a) the [a]pplicant's criminal record as set out in Annexure B. (b) The other matters set out above. (c) The [a]pplicant's history of serious domestic violence, breaches of bail and a PIIO. (d) The Applicant has been convicted of a serious criminal offence against [his ex-partner's] sister. 35 It concluded at [170] that primary consideration 5 "weighs heavily against granting the visa". 36 The Tribunal did not ignore the applicant's "specific personal circumstances". To the contrary, it took them all into account but found that they were outweighed by the countervailing considerations. 37 The Tribunal considered the applicant's ties to the Australian community at [141]-[145], in the context of its consideration of primary consideration 3, which is the strength, nature and duration of the non-citizen's ties to Australia, concluding at [145] that the consideration weighed in favour of granting the applicant a visa. 38 The Tribunal also considered the best interests of the applicant's two infant nieces and a nephew to whom he claimed to be close when addressing primary consideration 4 (the best interests of minor children), finding (on the assumption the applicant did not reoffend) that this was a matter which weighed slightly in his favour (at [146]-[162]). 39 As for the applicant's refugee background, the Tribunal referred to it in several parts of its reasons and at [173] noted that the Minister accepted that the applicant was owed non-refoulment obligations and that there was a protection finding in his favour. The Tribunal observed that this raised "the possibility of detention for an indeterminate period, if the [a]pplicant's visa application were not to be granted". While the Tribunal said it was unable to conclude that the applicant would remain in immigration detention indefinitely, it observed that there was nothing before it to suggest that the applicant would be granted any other class of visa (at [174]-[175]). 40 The Tribunal therefore accepted that there was a "prospect of detention for an indeterminate period" (at [179]). It found that prolonged detention would have "a very adverse impact on the [a]pplicant", that it could be "very detrimental to his mental health, in particular", and, amongst other things, that prolonged detention would cause his family great distress (at [178]). It also considered that keeping the applicant in indefinite detention might be contrary to Australia's international obligations and therefore its national interests (at [177]). 41 These matters were discussed at length in the Tribunal's deliberations about the first of the "other considerations", which appears in para 9.1 of the Direction and is entitled "Legal consequences of decision under section 501 or 501CA". Importantly, the Tribunal decided that the prospect of indeterminate detention "weighs very heavily in favour of granting the visa" (at [179]) and therefore decided that the legal consequences of the decision also "weighs very heavily in favour of granting the visa" (at [189]). 42 In its conclusions, beginning at [190] of the decision record, the Tribunal correctly observed that it was "necessary to weigh up all of the primary and other considerations". At [191]-[195] the Tribunal referred to the findings it had earlier made about the weight it had given to the various primary considerations. Before turning to the "other considerations', the Tribunal observed at [196]: In this case, Primary Considerations 1, 2 and 5 cumulatively weigh overwhelmingly against granting the visa. This remains so, even when balanced against Primary Considerations 3 and 4 [which it found favoured the grant of the visa]. But for Other Consideration (a) [the legal consequences of the decision], the determination of this matter against the [a]pplicant would, on the evidence, be relatively clear. 43 The Tribunal then proceeded to undertake the weighing process. It is appropriate to record the Tribunal's reasoning on this matter verbatim: 197 Other Consideration (a) however, introduces the prospect of indeterminate detention into the equation. The practical consequence of the interplay between a protection finding in the [a]pplicant's favour, and the application of the [sic] Direction 99, creates a terrible dilemma. Although very serious, the [a]pplicant's offending is confined to a period of a few months during 2013-2014. The [a]pplicant has already served his sentence for his crimes. He has also spent considerable time on home detention, on remand or in immigration detention. The details of this are as follows: … 199 The harm that may result if the [a]pplicant were to reoffend is potentially extremely serious. The evidence suggests that there is at least a moderate risk of the [a]pplicant reoffending with another partner or partners, if released into the community. This weighs heavily against him. 200 The prospect of indeterminate detention, which weighs very heavily in favour of granting the visa, together with Primary Considerations 3 [ties to Australia] and 4 [the best interests of minor children], is however, insufficient to outweigh Primary Consideration 1, 2 and 5.

Consideration 44 The applicant's complaint is that the Tribunal erred by not weighing his "specific personal circumstances" at an anterior time, namely, before deciding what weight should be given to primary consideration 5. 45 The Minister submitted that the Tribunal had taken into account the applicant's personal circumstances when it said at [169] that, in assessing the weight attributable to primary consideration 5, it is necessary to have regard to "[t]he other matters set out above". I reject the submission. Even if one were to read that opaque reference as including the matters favouring the applicant that had previously been addressed (the strength, nature and duration of his ties to Australia and the best interests of minor children), it did not include the applicant's "refugee background" or the prospect of prolonged or indefinite detention. The consideration of that matter did not occur until later in the Tribunal's reasons. 46 In Kelly at [97] Beach J observed that: FYBR establishes that the community expectations consideration does not incorporate all the countervailing factors from the person's specific circumstances. Instead, these individual factors are brought to account when deciding what relative weight to give community expectations. 47 That is precisely what the Tribunal did in the present case. 48 In Kelly, however, Beach J went on to find that the Minister, whose personal decision was the subject of review, committed jurisdictional error by failing "to actively intellectually engage" with the weight to be given to the deemed community expectations (at [109]-[112]). His Honour observed at [109] that "a reasonable Minister would have regard to the applicant's circumstances at least in assessing what weight to give the deemed expectations" (original emphasis). 49 In Ali, which was also a review of a personal decision of the Minister and in which the Minister's language was said to be "identical" to the reasoning of the Minister under consideration in Kelly (Ali at [83]), Bromberg J said at [84] that the observations of Beach J at [109] of Kelly were "apposite" in that case, too. His Honour found that the Minister erred by failing to consider representations which a reasonable Minister with a proper understanding of the Direction would have appreciated were directed to the significance that should be attached to the community expectations consideration, to the weight the Minister should give to that consideration, and in the assessment of "the relative weight" to be given to the community expectations consideration (at [86]-[87]). 50 Both Kelly and Ali are distinguishable. Each of those cases was concerned with the exercise of the Minister's power to revoke a mandatory cancellation decision under s 501CA(4) of the Migration Act and, specifically, the alleged failure to consider representations as to whether there was "another reason" to revoke the decision. In Kelly, Beach J held that "the Minister did not give active intellectual consideration to the applicant's representation about his specific circumstances in the context of the weight to be given to the community expectations" ([112]). Similarly, in Ali Bromberg J held that by reasoning that the applicant's personal circumstances were not at all relevant to the community expectations consideration, "the Minister failed to properly consider the representations made" (at [93]). 51 In the present case the applicant did not contend that a clearly articulated argument was put to the Tribunal that the weight to be given to community expectations should be modified on account of his personal circumstances. The submission to the Minister was that the community's expectations would be affected by them. That submission, as I have already observed, was considered and rightly rejected. 52 The applicant also relied on a remark by the Full Court in JZQQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 168 at [63]. There, the Court was dealing with a contention that the Tribunal "double counted" family violence in considering the expectations of the Australian community. The remark upon which the applicant relied is emphasised in the extract below. That the Tribunal did not "double count" family violence in considering the expectations of the Australian community is made plain at [157]-[158]. The Tribunal started with the proposition that, in the context of offending that is very serious, the community's expectation that a non-citizen would not be allowed to remain in Australia should generally be given significant weight. The Tribunal also referred to the separately identified community expectation that non-citizens are expected to obey the law and, that where a non-citizen engages in serious conduct, or (as in this case) very serious conduct, contrary to that expectation, similar weight should be given to this consideration. Nevertheless, as it was required to do, the Tribunal considered the particular circumstances of this case, taking into account the applicant's low risk of recidivism and the one-off nature of the offence, and reduced the weight it would otherwise have attributed to the consideration of the expectations of the Australian community, attributing to it moderate weight. (Emphasis added.) 53 The remark in question was obiter. In any event, the matters the Tribunal took into account in JZQQ are not factors of the kind the applicant submitted the Tribunal was required to bring to bear in determining the weight to be given to the expectations of the Australian community in the present case. In contrast to those matters, the applicant's refugee status, the risk of prolonged or indeterminate detention, his ties to the community, and the best interests of minor children have no apparent relationship to the expectations of the Australian community. None of them bears upon the seriousness of the applicant's conduct or the nature of the character concerns or offences. The Tribunal did take matters of that kind into account before concluding that the expectations of the Australian community weighed heavily against the applicant. In my opinion, at this point in the reasoning process the Tribunal was not obliged to take into account countervailing factors of the kind the applicant urged upon the Court. 54 Furthermore, I accept the Minister's submission that the approach the applicant contends the Tribunal was required to take is inconsistent with FYBR v Minister for Home Affairs (2019) 272 FCR 454. There, at [74] Charlesworth J said: In my view, the task of the decision-maker is to identify what is the "government's view" about community expectations in the particular case, to "have due regard" to that view and to "generally" afford that view more weight than other non-primary considerations in accordance with cl 8(4). The phrase "may be appropriate" does not permit the decision-maker to equate the expectations of the Australian community (as expressed in cl 11.3) with the decision-maker's own view as to the preferable outcome in the ultimate exercise of the discretion. To construe cl 11.3 in that way would be to ignore the fact that the clause is intended to express a consideration that is capable of being given more weight relative to "other considerations" in the exercise of the discretion, as cl 8(4) of the Direction generally requires. The primary judge was correct to say that importing into cl 11.3 all countervailing factors bearing on the ultimate decision would render cl 8(4) of the Direction unworkable. (Emphasis added.) 55 Later, at [77] her Honour said: In my view, the degrees of tolerance referred to in cl 6.3(5) and cl 6.3(7) are matters that fall for consideration by the decision-maker in the ultimate exercise of his or her discretion. They are factors that may be taken into account in determining whether it is appropriate to give more or less weight to a deemed community expectation of visa refusal that might otherwise arise simply because of the nature of the non-citizen's character concerns or offences. (Emphasis added.) 56 In NWQR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1077 at [27] Bromwich J agreed with Charlesworth J. I also agree. 57 On 9 February this year, counsel for the applicant drew the Court's attention to the judgment of the High Court in Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2, published two days earlier. In that case the High Court, sitting in its original jurisdiction, dismissed an application to review a decision of a delegate of the Minister to refuse to grant a visa under s 501(1) of the Migration Act. One of the arguments raised in Ismail appeared to be substantially the same as the argument raised in the present case. In the circumstances I asked the parties whether they wished to make further submissions in the light of the judgment in Ismail. Only the Minister accepted the invitation, filing submissions last Friday together with an affidavit annexing certain parts of the Ismail court book and the parties' submissions. The applicant declined the invitation. 58 In Ismail the plaintiff alleged that the Minister's delegate erred by having "misapplied" para 8.4 of Direction no. 90 in that, when weighing the expectations of the Australian community, the delegate was required to consider those expectations in light of the plaintiff's personal circumstances and did not do so (see [47]). As in the present case, the allegation rested on the foundation that in the part of the delegate's reasons, under the heading "Expectations of the Australian community", where the delegate said "significant weight" should be given to this consideration, there is no reference to any aspect of the information submitted by and for the plaintiff about his personal circumstances (see [48]-[49]). 59 In his submissions Mr Ismail argued that the delegate "erroneously applied the expectations of the community as a significant factor to be weighed in favour of refusal, without considering what weight to give that factor in light of the applicant's circumstances" and "failed to consider what weight to give the deemed adverse factor of expectations of the Australian community in light of [his] personal circumstances". He relied on Kelly and Ali, submitting that they "[stood] for the proposition that, to comply with the statutory task and the direction on community expectations, a decision-maker must 'consider what weight to give to that deemed expectation in light of the evidence of the specific circumstances particular to the applicant'". 60 In a joint judgment, the High Court rejected the plaintiff's arguments, holding (at [50]-[52]): [50] If the delegate was required to weigh the plaintiff's personal circumstances in deciding what ultimate weight to give to the expectations of the Australian community, no inference can be drawn that the delegate did not do so. A decision maker's written reasons for a decision are often structured in sequence. The sequential structure of reasons, so that each topic is dealt with under a separate heading, is not generally a sufficient reason to infer that in dealing with one matter the decision maker has forgotten the substance of the preceding parts of the reasons or is unaware of the substance of the subsequent parts of the reasons. Nor would it be readily inferred from mere sequential structuring and dealing with each topic under its own heading that a decision maker had quarantined the assessment of each topic from every other topic. As previously noted, in the present case, moreover, the concluding section of the delegate's reasons discloses an overall weighing of all considerations against each other. In so doing, the delegate expressly weighed the plaintiff's personal circumstances against, amongst other things, the expectations of the Australian community. [51] Further, para 8.4 does not stipulate that, in assessing what weight is to be given to the expectations of the Australian community, the decision-maker must attribute to that hypothesised community knowledge of the personal circumstances of the applicant for the visa as known to the delegate. To the contrary, para 8.4(4) stipulates that the decision-maker is to proceed on the basis of the Australian Government's views as set out in para 8.4 "without independently assessing the community's expectations in the particular case". [52] Paragraph 8.4(4) is to be understood as directing the decision-maker not to attempt to infer what the expectations of the Australian community would be "in the particular case" (that is, with the knowledge of the delegate about the applicant's personal circumstances), but to proceed on the basis that the views of the Australian Government set out in para 8.4(1)-(3) are the relevant norm described as the expectations of the Australian community. That norm, as applicable by reference to the terms of para 8(1)-(3), is then to be weighed with other relevant matters as required by paras 6 and 7 of Direction 90. The delegate's reasoning accords with these requirements. 61 As it was in Ismail, so it was here. Here, the Tribunal considered the applicant's "specific personal circumstances" in deciding what ultimate weight should be given to the expectations of the Australian community. Moreover, as the Minister submitted, the reasoning in [51]-[52] of Ismail applies with equal force to Direction no. 99 and is fatal to the argument in the present case.

Conclusion 62 The Tribunal did not fall into jurisdictional error. Accordingly, the application must be dismissed. Costs should follow the event. I certify that the preceding sixty-two (62) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Katzmann.