Reid v Minister for Immigration, Citizenship and Multicultural Affairs

BACKGROUND 4 The applicant is a citizen of the United Kingdom who migrated to Australia with his parents at the age of 12 in October 1997. He has had a substantial adult criminal record commencing from August 2005, when he was 20 years of age. 5 In July 2006, following a conviction for unlawful sexual intercourse, the applicant was informed that the Minister was considering cancelling his visa. In August 2006, the applicant was informed that his visa would not be cancelled but was warned that future offending may result in a reconsideration of that decision. Despite that warning, the applicant's criminal record discloses that he committed further offences. 6 On 17 September 2019, whilst the applicant was serving a full-time custodial sentence, his visa was cancelled pursuant to s 501(3A) of the Act on the ground that he did not satisfy the character test (the Cancellation Decision). The applicant then applied for a revocation of the Cancellation Decision, which was declined by the Minister on 12 April 2021. However, on 1 November 2021, the Minister's decision was quashed by an order of this Court. 7 In March 2022, the Minister reconsidered the Cancellation Decision and decided again not to revoke it. On 26 August 2022, this decision made by the Minister was quashed by an order of this Court. 8 On 10 November 2022, a delegate of the Minister reconsidered the Cancellation Decision and made a decision under s 501CA of the Act not to revoke it (the Non-Revocation Decision). The applicant then applied to the Tribunal for a review of the Non-Revocation Decision.

THE TRIBUNAL'S DECISION 9 The applicant's application was heard by the Tribunal on 23 and 24 January 2023. 10 On 3 February 2023, the Tribunal made a decision affirming the Non-Revocation Decision. It published reasons for doing so. The Tribunal's reasons disclose that it considered and applied Ministerial Direction No 90 - Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction 90). The Tribunal's reasons further disclose that it: (a) identified the applicable principles set out in cl 5.2 of Direction 90, as well as the primary and other considerations set out in cll 8 and 9; (b) understood that the primary considerations should generally be given greater weight than other considerations, and that one or more primary considerations may outweigh other primary considerations; (c) considered the applicant's criminal record; (d) considered the documentary and oral evidence provided on behalf of the applicant; (e) found that the applicant's offending and other conduct was of a very serious nature, and further found that there was a risk of repeat offending and that the harm that may be caused by that reoffending was unacceptable; (f) consistent with the primary considerations set out in Direction 90, found that protection of the Australian community from criminal or other serious conduct weighed very substantially against revoking the Cancellation Decision; (g) accepted the applicant had some relationship with a minor cousin, but that the relationship was intermittent at best and therefore the consideration as to the best interests of minor children in Australia carried only slight weight in favour of revocation; (h) considered that there would be a higher degree of tolerance afforded to the applicant given his long period of time in Australia, but ultimately found that the expectations of the Australian community weighed substantially against revocation on the basis that the applicant's failure to heed the earlier warning regarding visa cancellation, long criminal history and serious character concerns including the conviction for unlawful sexual intercourse demonstrated a persistent breaching of community expectations that non-citizens obey Australian laws; (i) found that the applicant would be confronted with not insurmountable hardship and adjustment challenges if returned to the United Kingdom, and as such considered the extent of impediment if removed weighed moderately at best in favour of revocation; (j) accepted that the applicant's closest familial and friendship networks were in Australia and that revocation would cause significant emotional distress to the applicant's family and partner, and concluded that the strength, nature and duration of ties to Australia weighed very substantially in favour of revocation; (k) weighed the relevant considerations individually and cumulatively, and found there was no other reason why the mandatory cancellation should be revoked and affirmed the decision of the delegate. 11 On 8 March 2023, the applicant applied to this Court for judicial review of the Tribunal's decision. 12 On 12 September 2023, the primary judge dismissed that application.

DECISION OF THE PRIMARY JUDGE 13 The applicant's contentions before the primary judge advanced the same grounds as those raised in his present application. 14 In relation to Ground 1, the primary judge observed that although Direction 99 was signed by the Minister on 23 January 2023, cl 2 of that Direction expressly stated that it did not commence until 3 March 2023 at which time Direction 90 was to be revoked with immediate effect. As a result, the primary judge reasoned that, at the time the Tribunal heard and determined the applicant's application for review, Direction 99 had not commenced in operation and it was Direction 90 that the Tribunal was obliged to consider and apply. The primary judge rejected the applicant's submission that the Minister "gave" Direction 99 on 23 January 2023 for the purpose of s 499(1) of the Act. His Honour reasoned that although Direction 99 was signed at that time, it had no operative force until it commenced in operation. 15 The primary judge also rejected the applicant's contention that the Tribunal was obliged to otherwise have regard to Direction 99 as a change in ministerial policy. His Honour further reasoned that, as the Tribunal was bound to apply Direction 90, it could not at the same time apply Direction 99 which had the effect of altering the relevant primary and other considerations to be taken into account. 16 In relation to Ground 2, the primary judge found that the Tribunal did consider and weigh the "Tolerance Principle" as expressed in cl 5.2(4) of Direction 90, being that Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. 17 Accordingly, the primary judge rejected the applicant's application.

EXTENSION OF TIME 18 As noted above, the applicant requires an extension of time as his appeal was filed one day late. The Minister does not oppose the grant of an extension of time, and accepts that the delay on the part of the applicant was minimal and that an explanation has been proffered for the delay. In taking this course, the Minister does not make any concession about the merits of the substantive application. 19 We are satisfied that an extension of time should be granted. The delay was minimal, it has been explained, and the extension of time is not opposed.

GROUND 1 20 The applicant contends that the primary judge erred by failing to find that the Tribunal was required to consider and have regard to Direction 99. The significance is that the applicant contends that Direction 99 is more favourable to him than Direction 90 for essentially two reasons, being that: (a) the consideration as to the strength, nature and duration of ties to Australia is moved from being an "other consideration" in cl 9.4.1 of Direction 90 to a "primary consideration" in cl 8.3 of Direction 99; and (b) subtle but important changes were made to the "Tolerance Principle" as between cl 5.2(4) of Direction 90 and cl 5.2(5) of Direction 99 which, together with the factor as to "the strength, nature and duration of ties to Australia" being specified as a primary consideration in cl 8(4) of Direction 99, may have impacted favourably on the applicant's review of the Non-Revocation Decision. 21 The primary judge proceeded on the basis that Direction 99 did have these more favourable aspects to it relative to Direction 90, and the Minister does not contend otherwise in the present application. 22 It is not in dispute that: (a) Direction 90 was signed by the Minister on 8 March 2021. Clause 2 of Direction 90 states that it commences on 15 April 2021 and cl 3 provides that it revokes Ministerial Direction No 79; and (b) Direction 99 was signed by the Minister on 23 January 2023. Clause 2 of Direction 99 states that it commences on 3 March 2023 and cl 3 provides that Direction 90 is "revoked with effect from the date this Direction commences." 23 It follows that at the time that the Tribunal heard the applicant's application under s 501CA of the Act on 23 and 24 January 2023 and determined it on 3 February 2023, Direction 90 remained in force and had not been revoked. At that time, Direction 99 had been signed by the Minister but it had not commenced in operation. 24 Despite the fact that Direction 99 had not commenced in operation at the time that the Tribunal heard and determined the application, the applicant contends that the Tribunal was required to take Direction 99 into account and that the primary judge erred in not so finding. The applicant advances three essential contentions. 25 First, the applicant contends that upon Direction 99 being signed by the Minister, the Tribunal was required to comply with that direction or at least to have regard to it by reason of s 499(2A) of the Act. There were a number of different threads to this argument that the applicant advanced in written and oral submissions. The applicant contended that Direction 99 was given on 23 January 2023 when the Minister signed it, and from that time onwards the Tribunal was taken to have known about it (irrespective of whether it was served on or communicated to the Tribunal relying upon Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583 at [9]. The applicant contended that from, or shortly after, 23 January 2023, the Tribunal had a statutory obligation to "comply" with Direction 99 and that the Tribunal had to have "regard to" Direction 99 to work out how to comply with it. The applicant further contended that notwithstanding that Direction 99 was not stated to commence until 3 March 2023, the Tribunal had to have regard to Direction 99 to "note the commencement date" and could not disregard the "remainder of Direction 99" until 3 March 2023. The applicant contended that it followed that the Tribunal was required to "have regard to" in the sense explained in": Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40. 26 In oral submissions, the applicant refined his arguments in support of the first contention by acknowledging that as Direction 99 was not stated to commence until 3 March 2023, the Tribunal was not bound to comply with Direction 99 prior to that time but was nevertheless required to "have regard to" it and was in that sense required to comply with the Direction for the purpose of s 499(2A) of the Act. 27 Second, the applicant contended that, even if Direction 99 is not regarded as a direction given under s 499(1) or one that the Tribunal was required to comply with under s 499(2A) until it commenced in operation, the Tribunal was nevertheless required to have regard to it as Direction 99 was an expression of a new Ministerial policy which the Tribunal was bound to consider. 28 Third, on either of these arguments, the applicant contended that the primary judge erred by finding that it would be impossible for the Tribunal to have regard to and apply both Direction 90 and Direction 99. 29 Both the applicant's first and second contentions rely upon the argument that the Tribunal was required to comply with or have regard to Direction 99 in "the Peko-Wallsend sense" in that the Tribunal was required to have regard to Direction 99 either because of the express terms of the Act or because of some implication from the "subject-matter, scope and purpose of the Act": Peko-Wallsend at 39-40. 30 The applicant's first contention turns upon the proper meaning to be given to the words in s 499(1) of the Act. This section provides as follows: (1) The Minister may give written directions to a person or body having functions or powers under this Act… […] (2A) A person or body must comply with a direction under subsection (1). 31 As is evident from the text, s 499(1) of the Act provides that the Minister may give written directions about the performance of functions or the exercise of powers under the Act. Such a direction imposes a statutory duty, on the person to whom it is directed, to comply with the direction when performing a function or exercising a power under the Act. A failure to comply with a direction may constitute a jurisdictional error: BQL15 v Minister for Immigration and Border Protection [2018] FCAFC 104 at [9]. 32 The applicant's first contention relies on the proposition that once a direction has been "signed", it is taken to have been "given" for the purposes of s 499 of the Act and thereby becomes a mandatory relevant consideration for decision makers from that date even if the direction is expressed as not commencing until a later date. In support of this contention, the applicant relies upon the primary judge's reasons at [14] where it was stated that: As is well understood, s 499(1) permits the Minister to give written directions to a person or body having functions or powers under the Act "if the directions are about" the performance of those functions or the exercise of those powers. Once given, that person or body "must comply with" the direction: s 499(2A). The verb "give" in this provision means "to issue". It does not require that a direction be served on or communicated to the person bound by it: Rokobatini v Minister for Immigration and Multicultural Affairs [1999] FCA 1238; 90 FCR 583 at [9] (Whitlam and Gyles JJ). The applicant's submission decouples the giving of Direction 99, which I infer occurred on or shortly after the date the Minister signed it, from its commencement date whereupon Direction 90 was revoked. 33 Relying upon this passage, the applicant contended that Direction 99 was "given" when it was issued by the Minister by signing it. 34 The applicant's argument must be rejected. Although the primary judge at PJ[14] recognised that the verb "give" means "to issue", his Honour further reasoned (including at PJ[15]) that the applicant's contention sought to decouple the act of giving Direction 99 from the date on which it is expressed to commence. In essence, we understand the primary judge to have concluded that although Direction 99 was taken to have been given when it was signed in the sense that it had been issued, the Tribunal was not required to comply with it for the purpose of s 499(2A) until it had commenced in operation. We agree with that conclusion and discern no error in it. 35 The text of s 499(1) provides that the Minister "may give written directions to a person…" and s 499(2A) requires the relevant body to comply with such a direction. In this context, the act of "giving" the relevant direction cannot be disassociated from the "direction" that is thereby given. Whether a body has complied with a relevant direction will depend on the substantive or operative commands contained in that direction. 36 In the present case, the relevant substantive or operative commands in Direction 99 are contained in cll 6, 7, 8 and 9 as to the primary and other considerations. When the Minister signed and published Direction 99, it may have been "given" in the sense that it was issued, but it carried no direction at that time with which the Tribunal was bound to comply for the purpose of s 499(2A) of the Act. At that time there was no operative direction that was given to any person that had immediate effect. The relevant direction took effect from when Direction 99 was expressed to commence. It was from this latter time, when Direction 99 commenced in operation, that there was an operative direction that was given to the Tribunal with which it was bound to comply for the purpose of s 499(2A). Until that time, Direction 99 had no operative effect as a direction that was given in the sense that s 499(2A) contemplates. During the course of oral argument before us, the applicant's counsel conceded that none of the substantive or operative commands in Direction 99 commenced until 3 March 2023. The concession was properly made. That being the case, the Tribunal was not required to comply with Direction 99 until it had commenced in operation. This is what the primary judge found and we see no error in that finding. 37 Having conceded that the Tribunal was not required to comply with Direction 99 for the purpose of s 499(2A) of the Act, the applicant's counsel submitted during the course of oral argument that that Direction 99 was nevertheless one which the Tribunal was required to "have regard to" even if it was not bound by Direction 99 prior to this time. However, the applicant's counsel was unable to articulate the legal basis of that submission either based on the express terms of the Act or that which may have been implied from its purpose, subject matter or scope. The argument finds no support in any provision of the Act to which our attention was drawn. It must be rejected. Further, we observe that, even if there was some obligation imposed on the Tribunal to "have regard to" Direction 99, such an obligation would require the Tribunal to have regard to the fact none of the commands in Direction 99 commenced in operation until 3 March 2023. 38 As noted above, the applicant also contended that the Tribunal had to "have regard to" Direction 99 in order to determine its commencement date and that it was not thereafter permitted to disregard the remainder of Direction 99. This argument must also be rejected. The Tribunal was not required to comply with Direction 99 prior to its commencement date. 39 The applicant's second contention in essence involves the argument that even though Direction 99 was not binding on the Tribunal at the time it was signed, it was nevertheless a ministerial policy which the Tribunal was required to consider. Whilst Direction 99 was most certainly an expression of ministerial policy, it was one which was expressly stated not to take effect until a future point in time. The Tribunal was not bound to take it into account in relation to decisions made before its commencement date. 40 In support of his contentions, the applicant raised by way of analogy circumstances where legislation has been enacted but not yet commenced as being a manifestation of ministerial policy. However, where legislation is stated to commence from a specified future date, that legislation does not have effect as law until the commencement date even if the legislation has received royal assent: M v Scottish Ministers [2012] UKSC 58; 1 WLR 3386 at [26]. 41 In exercising its power of review, the Tribunal was required to apply to the facts and evidence before it the law (including the Direction) which was in force at the time of making the decision: Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409. 42 In Trout v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 583, the applicant raised a ground of review regarding the application of Direction 90, when the delegate had reference to its predecessor, Direction 79. The applicant in Trout submitted that the Tribunal was obliged to apply the same decision-making framework as the delegate, on the basis that the substantive right to review enshrined in s 500 of the Act, and ss 25 and 43 of the Administrative Appeals Tribunal Act 1975 (Cth), incorporated the Directions at the time of the original decision. In a passage cited by the primary judge at PJ[18], Feutrill J held at [85]: While the question for the delegate had a temporal element, the review of the delegate's decision formed part of an administrative continuum that continued until the time of the Tribunal's decision. Part of that continuum included ministerial executive policy as promulgated from time to time. That policy, whether the subject of a direction given under s 499 or not, had no bearing on the operations of s 501CA(4) and s 500 of the Act. The effect of s 499(2A) of the Act was that the delegate was obliged to comply with Direction 79 when making a decision to exercise (or not) the power under s 501CA(4) because that was the executive policy in force and that applied to the exercise of that power under s 501CA(4) at the time of the decision (emphasis added). 43 We respectfully agree, and the same conclusion must prevail here. Direction 99 was not in force at the time the Tribunal made its decision, and the Tribunal was not therefore required to consider or apply it. 44 The applicant's third contention, that Direction 99 could be applied compatibly with Direction 90, should also be rejected. The applicant contended that Direction 90 provided that the Tribunal could take into account "other considerations" and that Direction 99 was such a matter that the Tribunal could consider. Even if the submission were correct, it does not assist the applicant. Jurisdictional error only arises if the Tribunal failed to take into account a mandatory relevant consideration. However, the submission misstates the effect of Direction 90. Clause 9 of Direction 90 states that "other considerations must also be taken into account, where relevant, in accordance with the following provisions", and then refers to enumerated considerations on an inclusive basis. To the extent that other considerations must be considered by the decision-maker by force of cl 9, that obligation is qualified by a test of relevance. The matters referred to in Direction 99 could not be regarded as relevant in circumstances where Direction 99 expressly provided that it was not operative until a date after the date of the Tribunal's decision. 45 The applicant also contended that it would have been open to the Tribunal to remit the determination of the matter to the delegate which would have enabled Direction 99 to be taken into account and applied to the applicant's case. This argument essentially rested on the proposition that there was an "administrative continuum" as between the delegate's decision and that to be made by the Tribunal relying upon the decision in Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250 at [53] per Bell, Gageler, Gordon and Edelman JJ. The applicant's counsel was unable to point to any provision of the Act that would have empowered the Tribunal to take that course, and the decision in Frugtniet is not apposite to the instant case. Here, the Tribunal had a statutory duty to engage in a review of the Non-Revocation Decision. It discharged that statutory duty as was required of it. 46 The applicant also faintly contended that it would have been open to the Tribunal to defer its decision until the commencement of Direction 99. However, the applicant conceded that the effect of s 500(6L) of the Act is such that the Tribunal could not defer making a decision to allow Direction 99 to commence in operation. 47 We find no error in the primary judge's determination of these issues. Accordingly, Ground 1 fails.

GROUND 2 48 The applicant contended that the Tribunal misapplied Direction 90 in that it did not correctly apply the "Tolerance Principle" reflected in clause 5.2(4) of Direction 90 to the effect that Australians may afford a higher level of tolerance of criminal conduct committed by a non-citizen who has lived in the Australian community for most of their life, or from a very young age. The applicant advanced three contentions in support of his position. 49 First, the applicant contended that although the Tribunal considered and applied the "Tolerance Principle", it erred in limiting its application to a primary consideration under Direction 90 (relating to the "expectations of the Australian community") without bringing it to bear as part of its overall exercise of discretion relying upon FYBR v Minister for Home Affairs [2019] FCAFC 185; 272 FCR 454 at [77] and [105]. We agree with the primary judge that the applicant's contention is not factually correct. 50 The Tribunal recited the terms of cl 5.2 of Direction 90, including the "Tolerance Principle", at [16] of its reasons. As the Tribunal there observed, cl 5.2 of the Direction stated that the principles set out in cl 5.2 of the Direction "provide a framework within which decision-makers should approach their task" of deciding whether, relevantly, to revoke a mandatory cancellation under s 501CA. It can also be observed that cl 5.2 appears in a section of Direction 90 titled "Preamble" and which includes, at cl 5.1, a statement of objectives. At [17], the Tribunal also expressly referred to cl 6 of Direction 90 which refers to the principles in cl 5.2. Clause 6 states that a decision-maker must take into account the considerations identified in cll 8 and 9 "informed by the principles in paragraph 5.2". 51 The Tribunal expressly referred to the "Tolerance Principle" in two parts of its reasons. Under the heading "Expectations of the Australian community" at [77] of its reasons, the Tribunal observed that: The Respondent accepts that because of the time the Applicant has spent in Australia, 'a higher degree of tolerance would be afforded to him'. It is submitted, however, that the prolonged nature of his offending and recidivism risk is such that the Australian community would expect he should not hold an Australian visa. 52 The Tribunal also referred to the principles stated in cl 5.2 at [78] of its reasons, albeit not identifying them individually: … The Applicant has also persistently breached the community's expectation that non-citizens obey Australian laws. Having regard for the norm stipulated at cl 8.4(1) of the Direction and the guidance provided by the principles at cls 5.2 of the Direction, the Australian community would strongly expect he should not hold a visa. This primary consideration weighs substantially against revocation. 53 Next, under the heading "The strength, nature, and duration of ties to Australia" at [93] of its reasons, the Tribunal stated that: The Applicant has lived permanently in Australia since the age of 12, which is for approximately 25 years and all his adult life. His circumstances are such that he would be afforded a higher level of tolerance by the community. 54 In the concluding parts of its reasons, the Tribunal expressly referred to its assessment of the "primary considerations" and "other considerations", stated that it "weighed the relevant considerations individually and cumulatively", and made express reference to the "other countervailing considerations". 55 We agree with the primary judge that no error is disclosed. The Tribunal considered the "Tolerance Principle" both as part of its assessment of the expectations of the Australian community but also as part of its examination of other considerations. It also considered other matters and came to a view that the risk of the applicant reoffending and the potential for harm arising from that conduct weighed substantially against revocation. There was a requisite consideration and balancing of matters in a manner consistent with the requirements of Direction 90. We do not agree that the Tribunal only considered the "Tolerance Principle" by reference to the primary consideration as to the expectations of the Australian community. We see no error in the Tribunal's reasons or those of the primary judge. 56 We also agree with the Minister's submission that the Tribunal was not bound to consider the "Tolerance Principle" in any particularly rigid way. As explained above, the "Tolerance Principle" is stated in cl 5.2 to be part of the "framework" within which decision-makers approach their task, and cl 6 directs that the mandatory considerations identified in cll 8 and 9 of Direction 90 must be taken into account as "informed by" the principles in cl 5.2. The weight to be attributed to the "Tolerance Principle" expressed in cl 5.2(4) of Direction 90 is a matter for the Tribunal in any given case, and it may be but one factor that informs the balancing exercise: FYBR at [75]-[77]. In the present case, as noted above, the Tribunal considered the "Tolerance Principle" and, as the Minister submitted, the Tribunal was not then bound to expressly refer to or revisit it as a consideration in the expression of its conclusions given that it had already taken that factor into account. 57 Second, the applicant contended that the Tribunal failed to take into account the Minister's concession regarding the "Tolerance Principle". We agree with the Minister's submission that this is based on an unfair reading of the Tribunal's reasons. The Tribunal referred to the fact that the Minister had conceded that a higher level of tolerance would be afforded to the applicant due to the time he had spent in Australia from a young age, but noted that this concession was qualified as the Minister's position was that the applicant's long history of offending and risk of recidivism were not in accord with the expectations of the Australian community. On a fair reading of the Tribunal's reasons, there is no substance to the applicant's contention that the Tribunal failed to take into account the Minister's qualified concession and no error is disclosed in the primary judge's reasons: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272. 58 Third, the applicant contended that the Tribunal's reasons are inconsistent with the application of the "Tolerance Principle" in that it is intended to have an ameliorative effect and apply in favour of the applicant. The applicant contended that, having referred to the "Tolerance Principle" and the Minister's concession about it, the Tribunal thereafter did not apply it with ameliorative effect to the applicant's case. We do not agree. The primary consideration under Direction 90 relates to the expectations of the Australian community. This consideration is informed by the Tribunal's assessment of an applicant's criminal history and risk of recidivism, and its assessment of the "Tolerance Principle" and other factors such as ties to the Australian community. In the present case, the Tribunal recognised and kept in mind the "Tolerance Principle", but this factor did not outweigh the Tribunal's assessment of the risk to the Australian community in light of the applicant's criminal history and risk of recidivism. This evaluative assessment led the Tribunal to reach a certain conclusion as to the expectations of the Australian community that was unfavourable to the applicant. What weight is placed on the various considerations is quintessentially a matter for the Tribunal. There was no error in the Tribunal's approach or reasons. Nor was there any error in the primary judge's reasons. 59 It follows that Ground 2 fails.

DISPOSITION 60 The applicant's application for an extension of time should be granted, but the appeal should be dismissed with an order as to costs. I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices O'Bryan, Abraham and Shariff.