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.