Ground two
46 This ground arises from the following submission that was advanced by the applicant before the Tribunal in his SOFIC in the context of Primary Consideration 5 (expectations of the Australian community):
We concede that this consideration weighs in favour of non-revocation. However, we submit that the Applicant has lived in Australia all of his life and all his family and connections are here. He has contributed positively to the community through his previous long-term employment, and as such the Australian community may therefore afford a higher level of tolerance of criminal conduct in relation to him. This consideration, therefore, should weigh moderately against the Applicant.
47 The applicant contends that this submission, which was described as the "tolerance submission", amounted to a substantial, clearly articulated argument that the weight to be afforded to the expectations of the Australian community should be "moderated" in the light of the applicant's lengthy residence in Australia, his ties to Australia and his previous employment. The substance of the tolerance submission was said to be "that in assessing weight for the purposes of the expectations of the Australian community, the Tribunal would consider various specific circumstances related to the applicant". The applicant contends that the Tribunal failed to address or engage with this submission and thereby denied him procedural fairness: see generally NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1 at [55], [63] (Black CJ, French and Selway JJ).
48 After summarising para 8.5 of the Direction, the Tribunal addressed Primary Consideration 5 at paras [271]-[272] of the Reasons:
Analysis - Allocation of Weight to this Primary Consideration 5
271. Accordingly, in assessing the weight attributable to Primary Consideration 5, it is necessary to have regard to the following matters:
(a) the Applicant's criminal record as set out in Annexure B.
(b) The other matters set out in detail above, in particular family violence, drug offences, firearms offences, ignoring repeated warnings from the Respondent and repeated breaches of various Court Orders.
Conclusion: Primary Consideration 5
272. Primary consideration 5 weighs extremely heavily against revocation of the cancellation of the Applicant's visa.
49 The applicant submits that the Tribunal did not even refer to the tolerance submission as set out at [46] above, let alone "intellectually engage" with that submission. Accordingly, the applicant submits that the natural inference is that the submission was overlooked by the Tribunal.
50 In order validly to carry out its statutory task of review, the "requisite level of engagement" by the Tribunal with the applicant's submissions depends on the nature, form and content of those submissions, including their length, clarity and degree of relevance: see Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582 at [25] (Kiefel CJ, Keane, Gordon and Steward JJ). In that regard, a majority of the High Court in Plaintiff M1 sounded a cautionary note in relation to the deployment of labels such as "active intellectual process" or "proper, genuine and realistic consideration", lest they provide an invitation to scrutinise the substantive merits of the decision under review: Plaintiff M1 at [26]. Notwithstanding this caveat, however, the line of authority in which such formulae have been used would appear to remain good law.
51 The principles set out in the Direction specifically contemplate that the "level of tolerance" of criminal or other serious conduct committed by a non-citizen may vary by reference to the length of time that the non-citizen has lived in the Australian community: see paras 5.2(4), (5). The matter of "tolerance" is also referred to in para 8.1.2(1) of the Direction in the context of the diminishing tolerance of the Australian community for any risk of harm as the seriousness of the potential harm increases if a non-citizen were to commit further offences or engage in other serious conduct.
52 Nevertheless, the Direction does not expressly require decision-makers to moderate the expectations of the Australian community in the light of the specific circumstances of the non-citizen, including their length of residence, past employment or family connections. The strength, nature and duration of ties to Australia is separately addressed by Primary Consideration 3, which must be weighed together with the other primary and other considerations including Primary Consideration 5. In this regard, the primary considerations should generally be given greater weight than the other considerations, and one or more primary considerations may outweigh other primary considerations: see the Direction, paras 7(2), (3).
53 The centrality of community expectations is identified in the principles set out in para 5.2 of the Direction that provide the framework within which the powers conferred by ss 501 and 501CA must be exercised: see in particular paras 5.2(2), (3). This is elaborated as a primary consideration in para 8.5 of the Direction. In particular, para 8.5(4) of the Direction requires decision-makers such as the Tribunal to "proceed on the basis of the Government's views" as to the expectations of the Australian community as a whole, as articulated in subparas (1) to (3) of para 8.5, "without independently assessing the community's expectations in the particular case". The articulation of community expectations is directed to the kinds of criminal conduct or other serious conduct in respect of which the Australian community expects that the Government can and should refuse or cancel visas, "regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community".
54 As the High Court recently stated in Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2; 98 ALJR 196 at [38] (Gageler CJ, Gordon, Edelman, Gleeson and Jagot JJ) in relation to the equivalent paragraph in an earlier version of the Direction:
Paragraph 8.4 ("Expectations of the Australian community") involves an assessment in which the decision-maker is required to consider that the Australian community, as a norm, expects the Australian Government not to allow a non-citizen who has engaged in serious conduct in breach of Australian law to enter or remain in Australia. This assessment under para 8.4 thus focuses on the expectations that Direction 90 itself (by para 8.4(1)-(3), applied as required by para 8.4(4)) instructs the decision-maker that the Australian community holds about the response of the Australian Government to a non-citizen seeking to enter or remain in Australia if they have committed serious breaches of Australian law.
55 Later in its reasons, the Court said (at [51]-[52]):
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".
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.
56 The assessment of community expectations is therefore not a matter of evidence, and does not turn on the personal circumstances of the individual non-citizen: compare, in relation to an earlier iteration of the Ministerial direction: FYBR v Minister for Home Affairs (2019) 272 FCR 454 at [66]-[67], [74]-[75] (Charlesworth J), [91]-[93], [103]-[104] (Stewart J); see also CKL21 v Minister for Home Affairs (2022) 293 FCR 634 at [29]-[30] (Moshinsky, O'Bryan and Cheeseman JJ). The "degrees of tolerance" referred to elsewhere in the Direction "are matters that fall for consideration by the decision-maker in the ultimate exercise of his or her discretion" (or, in the present context, the determination whether there is another reason to revoke the original cancellation decision), and "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": FYBR at [77] (Charlesworth J). In other words, the decision-maker can take into account the personal circumstances of the individual non-citizen in so far as they are relevant to another primary consideration or one of the other considerations, and adjust the relative weight to be given to each of the primary and other considerations accordingly.
57 In the present case, the Tribunal concluded that Primary Consideration 5 weighed "extremely heavily against revocation of the cancellation decision", having regard to the applicant's criminal record and other matters relating to his conduct in disregard or contempt for the law. On the proper construction of para 8.5 of the Direction, the matters on which the applicant relies concerning his ties to Australia were not directly relevant to this primary consideration and were not capable of altering the Tribunal's finding about the expectations of the Australian community. Rather, those matters were relevant to other considerations which might potentially offset the heavy weight that was accorded to Primary Consideration 5. In this way, the matters specific to the applicant's personal circumstances were relevant to the relative weight to be accorded to each of the primary and other considerations, including Primary Consideration 5.
58 Conversely, for example, if the strength, nature and duration of ties to Australia or the best interests of minor children in Australia were found by the Tribunal to weigh heavily in favour of revocation, such findings would not themselves need to be qualified by the expectations of the Australian community as articulated in para 8.5 of the Direction. Rather, the findings on each of the primary and other considerations would be taken into account where relevant to the decision, and given such relative weight as ultimately considered appropriate by the Tribunal.
59 That is not to suggest that the balancing process entailed in the application of the Direction involves a "mathematical" exercise, as opposed to an instinctive synthesis requiring the evaluation of all relevant factors: Demir v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 870 at [21]-[22] (Kennett J). But it would render the Direction unworkable if the Tribunal were precluded from separately or independently addressing and attaching weight to each of the primary and other considerations, before ultimately engaging in the balancing of all relevant considerations: cf. FYBR at [53], [74].
60 The Tribunal was prepared to accept that Primary Consideration 3 weighed slightly in favour of revocation of the cancellation decision, taking into account the applicant's family connections together with his past employment and his contribution to the community since his arrival in Australia. Nevertheless, it is clear that the Tribunal took a fairly dim view of the applicant's contribution to the community, noting that he had commenced offending almost immediately after his arrival and had spent most of his time in Australia unemployed or living off the proceeds of crime, and finding that he had been "overwhelmingly a burden on our community": Reasons at [252]-[253]. Further, the Tribunal did not accept that the applicant had a current or ongoing relationship with his former partners or any of his children: Reasons at [250], [255]-[256]. His relationship with each of his children was specifically addressed in the context of Primary Consideration 4. All of these matters were brought to account in the Tribunal's ultimate balancing of the primary and other considerations: see Reasons at [297]-[305].
61 In submitting to the Tribunal that Primary Consideration 5 "should weigh moderately against the Applicant" (see [46] above), the applicant must be understood to have submitted that other considerations relating to the applicant's ties to Australia should be given greater weight (in favour of revocation) than that accorded to Primary Consideration 5 (against revocation). Similarly, in this Court, the applicant submitted that engagement with his submission "could realistically have led the Tribunal to moderate and offset the adverse attribution of weight to [Primary Consideration 5], ultimately impacting the final balancing exercise that had to be undertaken by the Tribunal" (emphasis added).
62 However, the weight to be accorded to each of the primary and other considerations was a matter for the Tribunal. There is nothing to suggest that the Tribunal failed to perform the task of considering and balancing the competing considerations when determining whether there was another reason to revoke the cancellation decision. The Tribunal was not required to address the applicant's tolerance submission in the context of considering what weight should be given to the expectations of the Australian community under Primary Consideration 5, as opposed to the relative weight to be given to the various primary and other considerations in the ultimate balancing process. Accordingly, no inference arises that the applicant's submission was overlooked by the Tribunal. The Tribunal's finding that the expectations of the Australian community (as articulated in para 8.5 of the Direction) weighed "extremely heavily against revocation" was not about the relative weight to be accorded to that consideration in the balancing process, and did not preclude other considerations from being weighed in favour of revocation, whether slightly or heavily. The matters to which the applicant's submission was directed were directly addressed in the context of other primary considerations, and were thereby taken into account in the "final balancing exercise" that was performed by the Tribunal at paras [297]-[305] of the Reasons.
63 This conclusion is consistent with the decision in Ismail, which was handed down by the High Court after judgment was reserved in the present matter. Following Ismail, each of the parties was given leave to file supplementary written submissions addressing the implications of the High Court's decision on the present application.
64 In Ismail, the High Court dismissed an application to review a decision of a delegate of the Minister to refuse to grant the plaintiff a Resident Return visa under s 501(1), applying a previous iteration of the Ministerial direction made under s 499 of the Migration Act (Direction 90). The delegate had given the expectations of the Australian community "significant weight" in favour of refusal of the plaintiff's visa application: Ismail at [48]. The plaintiff relevantly alleged that the delegate had misapplied the relevant paragraph of the Direction 90 "in that, when weighing the expectations of the Australian community, the delegate was required to consider those expectations in light of the applicant's personal circumstances and did not do so": Ismail at [47]. On judicial review before the High Court, the plaintiff advanced a similar argument to that made by the applicant in the present case, namely that the part of the delegate's reasons under the heading "Expectations of the Australian community" did not refer to information submitted by or on behalf of the plaintiff about his personal circumstances, and that "as the expectations of the Australian community would have been affected by knowledge of the plaintiff's personal circumstances, the delegate was required to, but did not, weigh those personal circumstances in deciding what ultimate weight to give to the expectations of the Australian community": Ismail at [49]. Rather, the delegate had considered information about the plaintiff's personal circumstances only in the context of the "other considerations" specified in Direction 90.
65 The High Court unanimously rejected the plaintiff's argument, concluding that no inference could be drawn that the delegate had not weighed the plaintiff's personal circumstances "in deciding what ultimate weight to give to the expectations of the Australian community": Ismail at [50]. The Court considered that the "sequential structuring" of reasons for decision, in dealing with each topic under a separate heading, did not itself give rise to an inference "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 that the decision maker "had quarantined the assessment of each topic from every other topic": Ismail at [50], see also at [45]. The Court relevantly concluded (at [50]):
… 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.
66 In my view, the High Court's reasoning in Ismail is directly applicable to the present case. It was open to the Tribunal to conclude that the expectations of the Australian community weighed extremely heavily against revocation, having regard to the applicant's criminal history and the nature of the offences of which he had been convicted. The Tribunal took into account the applicant's personal circumstances in the context of other considerations, including in particular Primary Consideration 3 and Primary Consideration 4. The Tribunal ultimately engaged in an overall weighing of all of the primary and other considerations in the concluding section of the Reasons. The Tribunal summarised the weighting given to each of the considerations, before synthesising them in the following paragraph (Reasons at [304]):
The Applicant has been a serial offender. He has repeatedly committed very serious offences including family violence, firearms offences, drug offences and driving offences. He has breached bail and parole. He has ignored repeated warnings regarding the possible consequences of his offending for his visa. On the other hand, he has lived in this country for most of his adult life, he has children here from whom he is estranged, and he would undoubtedly find it very difficult to return to Iran.
67 It is clear from this paragraph that the Tribunal brought to account the factors personal to the applicant that weighed in favour of revocation of the cancellation decision. In the circumstances, it cannot be inferred that the Tribunal failed to consider the tolerance submission made by the applicant about his employment and family connections to Australia. On the contrary, it is clear that the Tribunal did consider those matters in its overall weighing of the expectations of the Australian community with all other relevant considerations.
68 The applicant submitted that Ismail should be distinguished on the basis that the High Court was dealing with a different argument, namely that the delegate had misapplied Direction 90 by failing to consider information relevant to a mandatory consideration (the weight to be given to the expectations of the Australian community), rather than an alleged denial of procedural fairness as in the present case. I do not accept that this is a material distinction, bearing in mind that there is no "rigid taxonomy" of jurisdictional error (see e.g. Kirk v Industrial Court (NSW) (2010) 239 CLR 531 at [73] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) and there can often be overlap between different grounds of judicial review. The written and oral submissions of the plaintiff in Ismail relied heavily on the decisions in Ali v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 559 and Kelly v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 396 in support of the relevant ground of review, and the applicant's submissions in the present case invoked the same cases as being "very similar" to the claim advanced in Ground 2 of the amended application.
69 The denial of procedural fairness pleaded by the applicant in the present case involves an alleged failure by the Tribunal to have regard to his submission that the weight accorded to Primary Consideration 5 should be "moderated" by specific personal circumstances. As discussed above, this submission cannot be understood as having been directed to the content of the expectations of the Australian community for the purposes of Primary Consideration 5, as any such submission would be inconsistent with the reasoning in both FYBR (and now also Ismail). This was accepted by the applicant in his supplementary written submissions. Rather, the submission was directed to the relative weight to be given to Primary Consideration 5 in the overall balancing exercise. The essential step in the applicant's argument is that the Tribunal "overlooked" his submission and failed to consider his personal circumstances as potentially offsetting the weight that was given to the expectations of the Australian community in the ultimate balancing of all considerations in favour and against revocation. This raises precisely the same issue as was determinative in Ismail, that is, whether it was open to infer that the Tribunal had not weighed the applicant's personal circumstances when deciding what ultimate weight to give to the expectations of the Australian community.
70 In circumstances where the Tribunal did consider the applicant's personal circumstances in the context of other considerations (including the length of his residence in Australia, his family and other connections to Australia, his past employment and his contribution to the community) and engaged in an overall weighing of all considerations, the inference is not open that the Tribunal failed to consider whether the applicant's personal circumstances should moderate the "extremely heavy" weight that was given to the expectations of the Australian community.
71 For completeness, I note that the applicant relied on a number of previous decisions of this Court in support of his submissions on Ground 2: in addition to Ali and Kelly, the applicant referred to QHRY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 827 and Dunasemant v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 292 FCR 155. In each of those cases, the Court upheld an argument that the Minister or the Tribunal failed to respond to a clearly articulated submission about the applicant's personal circumstances when assessing the weight to be given to community expectations: see QHRY at [44]-[46] (Rangiah J); Kelly at [98]-[101], [107]-[112] (Beach J); Ali at [86]-[88], [91]-[93] (Bromberg J); Dunasemant at [55], [58]-[60] (Davies, Rangiah and Cheeseman JJ).
72 In my view, each of the above decisions are properly regarded as having been directed to the decision-maker's overall weighing process, when assessing the relative weight to be given to the expectations of the Australian community. On the particular facts in each case, the Court drew an inference that, when performing the final balancing of the primary and other considerations, the decision-maker had overlooked or failed to deal with representations made by the applicant about the impact of the decision on his or her personal circumstances.
73 Thus, in Kelly at [71] and [97], Beach J specifically referred to countervailing factors that "might cause the decision-maker to give lesser weight to community expectations, relative to other considerations" (at [71] (emphasis added)), and the need for individual factors to "brought to account when deciding what relative weight to give community expectations (at [97] (emphasis added)).
74 Similarly, in Ali at [81] and [86]-[87], Bromberg J was clearly dealing with an argument that the applicant's personal circumstances should have been taken into account when considering the relative weight to be accorded to the community expectations consideration.
75 The decision in Dunasemant turned primarily on the question of materiality, but was also directed to the effect of a failure to consider a claim of hardship in respect of the appellant's mother when balancing the community expectations consideration against other relevant considerations. Thus, the Full Court in Dunasemant was concerned with the Tribunal's failure to "take into account a factor that it was obliged to weigh in the balance" in determining the (relative) weight to be given to the expectations of the Australian community, in circumstances where the Tribunal "could have given this primary consideration less weight in its assessment of factors against revocation", and "in the exercise of its function under s 501CA(4)(b)(ii)" (i.e. determining whether there was another reason to revoke the original decision): Dunasemant at [58], [60].
76 The decision in QHRY is perhaps more equivocal. It appears that Rangiah J concluded at [44] that the Tribunal overlooked the applicant's submission that the expectations of the Australian community should not weigh heavily against him in the light of his personal circumstances, when it concluded that the expectations of the Australian community weighed very heavily in favour of refusal of the visa. Based on certain language used by the Tribunal in its reasons, Rangiah J rejected a submission that the relative weight of that primary consideration had been assessed in the Tribunal's "final, overall consideration of all the relevant factors": QHRY at [46]-[47]. Rather, the Tribunal had first decided what weight should be given to the expectations of the Australian community, without taking into account the impact of the decision on the applicant's partner and children, and had then assessed the primary considerations and other considerations in combination "having regard to the weighting already decided".
77 The above decisions can be distinguished from the present case, in which I have concluded that the Tribunal did perform an overall weighing of all relevant factors, including the tolerance submission (in the light of the applicant's personal circumstances) and the expectations of the Australian community. The Tribunal did not treat its intermediate finding that the expectations of the Australian community weighed extremely heavily against revocation as determinative of the outcome of its decision whether there was another reason to revoke the original cancellation decision.
78 Finally, I note that this Court has rejected similar contentions in two recent decisions.
79 In QDWQ v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 178, Katzmann J distinguished the decisions in Kelly and Ali and concluded that the Tribunal had taken into account the applicant's specific personal circumstances but had found that they were outweighed by countervailing considerations: QDWQ at [36]. Justice Katzmann rejected the applicant's complaint 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": QDWQ at [44]. In contrast to the present case, the applicant in QDWQ "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", but rather submitted that community expectations were affected by his personal circumstances: QDWQ at [51]. That submission had been "rightly rejected" by the Tribunal in the light of the decision in FYBR: QDWQ at [33], [46]-[47], [51], [54]-[56]. Further, Katzmann J held at [61] that the High Court's decision in Ismail was fatal to the applicant's argument in that case.
80 In Prasad v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 791, the Tribunal had directly addressed an argument advanced by the applicant about the relevance of his personal circumstances to Primary Consideration 5, relying on the decisions in Kelly and Ali. The Tribunal found that such matters were not relevant to the expectations of the Australian community, citing FYBR, but could instead be taken into account separately and were "capable of off-setting the weight of this Primary Consideration in the final weighing exercise": see Prasad at [9]. The applicant sought to challenge the Tribunal's approach as involving a misunderstanding of the law: Prasad at [11]. The applicant's argument was rejected by Shariff J, who held that the position was the same as that addressed in Ismail at [51]-[52] and that para 8.5 of the Direction necessarily excludes consideration of the applicant's personal circumstances, as opposed to "whether Primary Consideration 5 should be given more or less relative weight as against other considerations, including the applicant's personal circumstances, in the overall balance": Prasad at [17], [21]. In reaching this conclusion, Shariff J distinguished the decision in Dunasemant as having been concerned with an earlier and differently expressed Ministerial direction: Prasad at [18]-[20].
81 In summary, in the present case the Tribunal was not required to take into account the applicant's personal circumstances or the associated tolerance submission when addressing Primary Consideration 5, and did not fail to have regard to the applicant's personal circumstances and his submissions when considering the overall weighting of all primary and other considerations in favour of and against revocation of the original decision. It follows that Ground 2 is not established.