CLAUSE 9.1.2(1)(A)
13 Clause 9.1.2(1) of the Ministerial Direction provides as follows:
In considering whether the person represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable. In making this assessment, decision-makers must have regard to, cumulatively:
(a) The nature of the harm to individuals or the Australian community should the person engage in further criminal or other serious conduct; and
(b) The likelihood of the person engaging in further criminal or other serious conduct, taking into account:
(i) information and evidence on the risk of the person re-offending; and
(ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
14 Counsel for the Minister correctly conceded that a failure on the part of the Tribunal to "have regard to" the matters set forth in cl 9.1.2(1)(a) would constitute jurisdictional error and a basis upon which the decision of the Tribunal could be set aside. When considering a predecessor version of the current Ministerial Direction, Katzmann J in Minister for Immigration and Citizenship v Obele [2010] FCA 1445, 119 ALD 358 concluded:
[53] It was common ground that a failure to do this by the Tribunal would amount to jurisdictional error and this is undoubtedly correct. It would plainly be an error that caused the Tribunal's exercise of the discretion in s 501(2) to seriously miscarry since it is a fundamental feature of the Direction's requirements that the potential for harm to the community be assessed in the light of both the probability of the harm occurring and the nature of that harm. The two-fold nature of this deliberative process is emphasised in both paras 5.2(2) and 10.1(2). Put in more canonical terms, a failure to appreciate this requirement of the Direction would amount to an error of law which caused the Tribunal to ask itself the wrong question so that its exercise or purported exercise of power was thereby affected. See Craig v South Australia (1995) 184 CLR 163 at 179.
Counsel for the Minister in the present appeal endorsed her Honour's statement of the law. In Obele, her Honour went on to observe:
[54] Thus, the real issue between the parties was the proper inference to be drawn from the Tribunal's reasons as to whether it had performed the task prescribed for it by the Direction and, in particular, whether it had properly assessed the harm that Mr Obele may cause to the Australian community if he continues to reside within it by considering not only the probability of the harm occurring but the nature of any harm he may cause.
Such was also the "real issue" in the present appeal.
15 In the present appeal, Counsel submitted that the Tribunal had either expressly had "regard to" cl 9.1.2(1)(a) or - as a matter of substance - had "regard to" that provision. Counsel further accepted that there was, however, no express reference by the Tribunal to "the nature of the harm to individuals or the Australian community should the person engage in further criminal or other serious conduct…".
16 The former submission can be rejected. The Tribunal, in its reasons for decision, expressly set forth the text of cl 9.1.2(1)(a). But to do so, with respect, does not expressly expose any consideration being given to that provision.
17 But the latter submission should be accepted. Such was also the conclusion of the primary Judge. So much, it is concluded, necessarily flows from the following paragraphs of the Tribunal's decision:
express reference to cl 9.1.2(1)(a) (at para [19]);
recitation of the "nature of the offences" (at para [14]); and
reference to Mr Salahuddin's "alcohol dependence" and his "post-release rehabilitation plans" (at paras [25] to [29]).
Particular reliance was placed by Counsel for the Minister upon the following comments of the Tribunal:
[40] It is a matter of common knowledge that while heroin is highly addictive, some people are able to break that addiction and go on and make a positive contribution to society. Even with the support of his family I think at this point in his life it is unlikely that Mr Salahuddin will be able to beat his addiction. Even if it is accepted that he is genuine in his commitment to stop using illicit drugs, the length of his criminal history, the strength of his addiction, his failure to have undergone a structured rehabilitation program coupled with his immaturity and impulsivity, indicate that even with the help of his parents the odds are stacked against him. I think the risk of Mr Salahuddin returning to drug use if he were to remain in Australia is moderate to high. In my opinion if he were to continue to use drugs in the community it is almost inevitable that he will reoffend.
[41] While the crimes committed by Mr Salahuddin to date are not at the high end of the scale in terms of seriousness, the real risk that he will reoffend leads me to conclude that the primary consideration of the protection of the Australian community weighs heavily against him.
18 Counsel quite properly submitted that - on the facts of the present case - there was a close correlation between an analysis of the offences committed by Mr Salahuddin and "the nature of the harm to individuals or the Australian community…". Although there was no express reference in the Tribunal's reasons to "the nature of the harm to individuals or the Australian community", the above references and findings made by the Tribunal lead to a conclusion that those matters were in fact matters to which the Tribunal had "regard".
19 Separate from a conclusion founded upon an assessment of the reasons of the Tribunal in a manner which is not "over zealous" or designed "to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed" (cf. Minister for Immigration and Ethnic Affairs v Liang (1996) 185 CLR 259 at 271-272 per Brennan CJ, Toohey, McHugh and Gummow JJ), is a recognition of the care and attention given by the Tribunal in the present appeal to its fact-finding and reasoning process. When it is necessary to draw an inference that a particular matter has or has not been taken into account, French, Sackville and Hely JJ in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184, 75 ALD 630 said:
[47] The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where, however, there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.
These words of caution have oft been repeated: e.g., Daniel v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 21 at [32] per Goldberg J; SZQMA v Minister for Immigration and Citizenship [2012] FCA 433 at [39], 127 ALD 305 per McKerracher J; MZYPA v Minister for Immigration and Citizenship [2012] FCA 581 at [13] per Bromberg J; DZABK v Minister for Immigration and Citizenship [2013] FCA 328 at [11] per Flick J; Sauvao v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 827 at [36] per Cowdroy J. See also: Woolworths Ltd v Director of Liquor Licensing [2012] WASC 384 at [45] per E M Heenan J.
20 These general words of caution, however, do not relieve a reviewing court of carefully scrutinizing the reasons of an administrative decision-maker.
21 The rationale for imposing an obligation to provide reasons upon administrative decision-makers, such as the Tribunal in the present case, is not to be too readily placed to one side. As Kirby J acknowledged, albeit in a dissenting judgment, in Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Palme [2003] HCA 56, 216 CLR 212:
[105] The rationale of the obligation to provide reasons for administrative decisions is that they amount to a "salutary discipline for those who have to decide anything that adversely affects others". They encourage "a careful examination of the relevant issues, the elimination of extraneous considerations, and consistency in decision-making". They provide guidance for future like decisions. In many cases they promote the acceptance of decisions once made. They facilitate the work of the courts in performing their supervisory functions where they have jurisdiction to do so. They encourage good administration generally by ensuring that a decision is properly considered by the repository of the power. They promote real consideration of the issues and discourage the decision-maker from merely going through the motions. Where the decision effects the redefinition of the status of a person by the agencies of the State, they guard against the arbitrariness that would be involved in such a redefinition without proper reasons. By giving reasons, the repository of public power increases "public confidence in, and the legitimacy of, the administrative process".
And a requirement for a decision-maker to "have regard" to (for example) a Ministerial Direction is to impose upon decision-makers a discipline as to the matters to be taken into account and is a requirement which seeks to achieve greater consistency in decision-making. It is not for a reviewing court to be satisfied that there was evidence before an administrative decision-maker that was capable of supporting the conclusion in fact reached and to ignore the reasons actually given by the Tribunal: cf. FTZK v Minister for Immigration and Citizenship [2013] FCAFC 44 at [117]. Kerr J, there in dissent, rejected any suggestion that "the reasons actually given by the Tribunal can be ignored". His Honour further observed that that "proposition would turn on its head the fundamental relationship between administrative decision-makers and Chapter III courts exercising the power of judicial review": [2013] FCAFC 44 at [118]. Repeated occurrences upon which this Court is invited to consider - not the reasons expressly given by an administrator - but rather what is submitted to be the reasoning process implicit in reasons expressly provided, should not be encouraged. A failure on the part of a decision-maker to expressly or impliedly have regard to a mandatory consideration cannot be remedied by this Court either speculating as to what the decision-maker may have decided had the consideration been taken into account or the Court itself forming a view as to what the most likely decision would have been. Conversely, no encouragement should be given to encouraging claimants to bring unmeritorious applications founded upon a failure on the part of a decision-maker to expressly refer to a consideration which was plainly taken into account, albeit not expressly.
22 A balance must necessarily be struck between imposing upon administrative decision-makers some mere "formalistic" requirement to expressly refer to matters to which they must have regard and a requirement that administrative decision-makers in fact focus as a matter of substance upon the facts and merits of the individual application being made and the administrative or statutory context in which decisions are to be made. A recognition of the ability of a reviewing court to review the reasons for an administrative decision in a practical and realistic manner - as opposed to a manner more aligned to discerning error where none truly exists - should not be construed as a freedom for administrators to fall short of any obligation to provide findings and reasons and to properly consider an application in accordance with law. Where the context in which a decision is to be made requires that consideration be given having regard to specified matters, it forever remains the preferred course for any administrator to expressly refer to such matters. To do so largely removes any room for argument and provides assurance to the parties - especially the frequently unrepresented claimant - that a case has been properly considered. A failure to do so exposes such a decision-making process to a perhaps well-justified perception on the part of a claimant that his decision has not been made in accordance with law. Any such failure also fails to perhaps explain to a reviewing court as fully as would otherwise have been desirable the process of reasoning applied to the facts. The importance to a claimant, in particular, that his claims have been considered in accordance with law, cannot be under-stated. This is of universal importance. It only assumes added significance when, as in the present appeal, it is recalled that Mr Salahuddin has spent about one half of his life in Australia. Yet the consequence of the delegate's decision is that he will in all probability be now removed from Australia.
23 Although it is concluded that the Tribunal in fact had regard to the "nature of the harm to individuals or the Australian community", as required by cl 9.1.2(1)(a) of the Ministerial Direction, it would have been far preferable for it to have in fact expressly referred to and addressed this consideration. Any process of implication is necessarily uncertain. That process of implication may be readily drawn in the present appeal when attention is focussed on Mr Salahuddin's history of shoplifting, larceny and breaking and entering private property. The "nature of the harm" is the criminal interference with private property rights. But the process of implication is far less certain when attention is focussed on the offences as to assault and assault occasioning actual bodily harm. Those offences may have been unrelated to any history of drug addiction such that there presently remained no prospect of continuing "harm to individuals or the Australian community". That prospect was not expressly addressed by the Tribunal. And no finding of fact was made which readily exposed how any such prospect may have been assessed.
24 It is nevertheless concluded, albeit with some reservation, that the Tribunal in fact undertook its task of decision-making substantially in accordance with the Ministerial Direction. Its failure to expressly address the considerations in cl 9.1.2(1)(a) does not expose jurisdictional error given the conclusion that it implicitly did so. The primary Judge was correct in dismissing the appeal from the decision of the Tribunal.