Schuster-McFadyen v Minister for Immigration and Citizenship

THE LEGISLATION 6 The Minister or delegates of the Minister have a discretionary power, under s 501(2) of the Act, to cancel a visa if certain conditions relating to the character of the visa holder are satisfied. There is no dispute that these conditions were satisfied in the present case. 7 By s 499(1) of the Act the Minister is empowered to give written directions regarding the exercise of powers under the Act including those conferred by s 501(2). A person exercising such powers must comply with any such direction given by the Minister. 8 If a delegate of the Minister determines to cancel a visa, the visa holder has a right of appeal to the Tribunal under s 500(1) of the Act. The role of the Tribunal is to re-exercise the statutory power in making the correct or preferable decision. In exercising this function the Tribunal is required, like the delegate, to comply with any relevant direction: see s 499.

MINISTERIAL DIRECTION NO 41 9 There was, in force at relevant times, a Ministerial Direction, made under s 499 and entitled "Direction No 41 - Visa Refusal and Cancellation Under Section 501" ("the Ministerial Direction"). 10 Part B of the Ministerial Direction deals with the exercise of the discretion provided for in s 501(2) of the Act. It identifies a range of considerations which must be brought into account by a decision maker if those considerations are raised by the facts of a given case. The considerations are grouped in two broad categories. The first are identified as "primary considerations". The remaining considerations are branded as "other considerations". 11 Paragraph 10(1) of the Ministerial Direction identifies the four primary considerations. They are: "(a) the protection of the Australian community from serious criminal or other harmful conduct, particularly crimes involving violence; (b) whether the person was a minor when they began living in Australia; (c) the length of time that the person has ordinarily been resident in Australia prior to engaging in criminal activity or other relevant conduct; and (d) relevant international obligations, including, but not limited to: (i) the best interests of the child, as described in the Convention on the Rights of the Child (CROC); and (ii) the non-refoulement obligations contained in … the International Covenant on Civil and Political Rights (ICCPR) …" 12 Paragraph 10.1(2)(a) provides that the factors relevant to assessing the level of risk of harm to the community from a person who satisfies the conditions prescribed by s 501(2), include "the seriousness and nature of the relevant conduct …". Paragraph 10.1.1(1) singles out crimes involving violence as being "of special concern to the welfare and safety of the Australian community." Among other offences which are considered serious are the infliction of grievous bodily harm, assault and robbery: see paragraph 10.1.1(2)(d) and (e). 13 Paragraph 10.1.1(3) and (4) provide: "(3) The sentence imposed for an offence is considered indicative of the seriousness of the offender's conduct against the community. Due regard must be given to the extent of the person's criminal record, including: (i) the number and nature of offences; (ii) the period between offences; and (iii) the time elapsed since the most recent offence. (4) The following factors are also to be considered: (a) any relevant information, including, but not limited to, evidence from independent and authoritative sources in respect of the person such as judicial comments in an individual's case, professional psychological reports, pre-sentence reports for the courts, parole assessments, victim impact statements and similar sources of authoritative information for assessment; (b) any relevant factors the person provides as mitigating factors; (c) …; (d) …; (e) …" 14 The "other considerations" are dealt with in Clause 11. Relevantly sub-paragraphs 11(1) and (2) provide that: "(1) In reaching a decision on whether to refuse or cancel a visa, other considerations, although not primary, may be relevant and, if so, must be considered. (2) It is appropriate that these considerations, where relevant, must be taken into account but, generally, they should be given less weight than that given to primary considerations."

THE TRIBUNAL'S DECISION 15 The Tribunal commenced its reasons by referring to the legislation and the Ministerial Direction. Referring to the Direction it said that: "10. Part B of the Ministerial Direction deals with the exercise of the discretion referred to in s 501(2) of the Act. It is applied where a person does not pass the character test. The Ministerial Direction sets out primary considerations and other considerations. I must take into account the primary considerations and may take the other considerations into account where appropriate. I am only required to take into account directly relevant considerations. Furthermore, as is explained in paragraph 11(2) of the Ministerial Direction, other considerations should be given less weight than that given to primary considerations." (Emphasis added) 16 The Tribunal then identified and addressed each of the four primary considerations referred to in paragraph 10(1) of the Ministerial Direction. It found that primary consideration (a) (protection of the Australian community) weighed heavily in favour of cancellation of the applicant's visa. It found that primary consideration (c) (length of time in Australia before engaging in criminal conduct) bore unfavourably on the applicant. It found that primary considerations (b) and (d) were not relevant. 17 In dealing with the primary considerations the Tribunal recorded the offences to which the applicant had pleaded guilty and the sentence which had been imposed by the trial judge. It then said: "16. Mr Schuster-McFadyen was detained on remand between 5 March 2008 and 15 January 2009 when he was released on bail. He pleaded guilty to all of the above charges and Judge O'Brien of the District Court Criminal Jurisdiction, in Brisbane, made the following sentencing remarks: You have a criminal history which is fairly described as being more in the nature of nuisance offences than genuinely criminal offending. Nevertheless, as your counsel concedes, it is concerning. These offences, although they are always serious, do not possess many of the more serious features that often are associated with offences of robbery and I accept that they occurred in the context and against the background as outlined by your counsel. In all the circumstances, particularly given the lengthy time you spent in prison, which has been about 10 or 11 months, I have ample scope for dealing with you today. (emphasis in original) 17. Judge O'Brien sentenced Mr Schuster-McFadyen to two years imprisonment on each of the charges and ordered they be served concurrently. However, he suspended the two year sentence because Mr Schuster-McFadyen had already served 317 days on remand. The two year suspended sentence commenced from the date of sentencing, being 25 November 2009." 18 The Tribunal said that the trial judge's remarks needed to be understood in context. It referred to the applicant's "very extensive criminal history". It referred to paragraphs 10.1.1(3) and (4) of the Ministerial Direction, noting that it was required to consider information "such as judicial comments on the individual's case." Having done so it embarked on an analysis of the eight offences to which the applicant had pleaded guilty. It observed that the offences "were serious and repeated a number of times over a period of about three months." 19 At this point in its reasons the Tribunal was forced to deal with submissions made by the applicant which sought to downplay the seriousness of the offences by denying (despite his pleas of guilty) that certain elements of the offences could have been made out by the Crown. He described the robbery and attempted robbery charges as mere allegations and denied being armed with a knife in the course of the robberies or having used actual violence against anybody. The Tribunal, relying on decisions of this Court, held that an applicant could not successfully advance submissions which were inconsistent with the essential facts found by a sentencing judge. The Tribunal was entitled to have regard to such findings for the purpose of assessing the gravity of the offences. 20 Having taken mitigatory factors into account the Tribunal concluded that the offences were "of a very serious nature" and that this factor weighed heavily against the applicant in the exercise of the Tribunal's discretion. 21 The Tribunal then turned its attention to the "other considerations" identified in paragraph 11 of the Ministerial Direction to the extent that they were relevant. It commenced its analysis with the following statement: "64. As set out in paragraph 11 of the Ministerial Direction, other considerations, although not listed amongst the primary considerations, may be relevant and if so, I must consider them. These considerations are given less weight than that given to primary considerations." (Emphasis added). 22 It found that the applicant's family ties and relationships with others in Australia weighed against cancellation of his visa. It considered the applicant's claim to hardship should he and his partner be required to move to New Zealand and found that such hardship weighed "only slightly" against visa cancellation. The Tribunal also found that the applicant's links to New Zealand tended in favour of a cancellation decision. 23 In recording its conclusions the Tribunal (at [77]) referred to the two broad categories of consideration provided for in the Ministerial Direction and said "I must give greater weight to the primary considerations." (Emphasis added). 24 Later, in this section of its reasons, the Tribunal said: "81. Of the matters which fall within other considerations, the only ones which are in favour of Mr Schuster-McFadyen are: the hardship which will likely result if the discretion is exercised against him; his links to New Zealand; and his family ties to persons in Australia. In fact these considerations are mainly directed towards the hardship and ties Ms Tofield-Mathews has to Australia. However, because I must give less weight to these matters, and two of those considerations only weigh slightly in his favour, they cannot swing the overall balance in favour of Mr Schuster-McFadyen." (Emphasis added). 25 In this paragraph the Tribunal appears to have overlooked the fact that it had earlier determined that the applicant's links to New Zealand tended in favour of the cancellation of his visa. Nothing turns on this apparent error.

THE FIRST GROUND 26 The applicant alleged that the Tribunal had misdirected (and, thereby fettered) itself in the exercise of the discretion conferred by s 502(1) of the Act. This had occurred because it considered that it was bound to give less weight to "other considerations" than it was required to give to "primary considerations". The correct position, consistently with paragraph 11(2) of the Ministerial Direction was that "other considerations" should "generally … be given less weight than that given to primary considerations." 27 A predecessor of the Ministerial Direction, Direction No 21, contained a provision similar to paragraph 11(2). Its meaning and effect were considered by Gray J in Milne v Minister for Immigration and Citizenship (2010) 52 AAR 1 at 14-15. His Honour said that: "[44] Counsel for the applicant submitted that the Tribunal failed to carry out its duty of balancing the considerations, in accordance with Direction No 21, because it misdirected itself in law by holding that what it called the secondary considerations 'must be given lesser weight than the primary considerations'. [45] Clause 2.2 of Direction No 21 requires a decision-maker to engage in the process of balancing the considerations that Direction No 21 requires him or her to take into account, in order to arrive at a decision. Decision-makers are required to 'have due regard to the importance placed by the Government on the three primary considerations', but also to 'adopt a balancing process which takes into account all relevant considerations.' Again, in cl 2.17, in referring to the 'OTHER CONSIDERATIONS' (ie. the considerations that are not primary considerations), the decision-maker is instructed that the other considerations would 'generally…be given less individual weight than that given to the primary considerations.' The decision-maker is therefore authorised, but not bound, to give less weight to the other considerations than to the primary considerations. A decision-maker who acted on the view that he or she was bound to give less weight to the other considerations than to the primary considerations would be in error. The adoption of such a principle would lead to the result that the decision would always be made according to the primary considerations, because the other considerations would never be allowed to outweigh the effect of the primary considerations. A true balancing process could result in a decision not to cancel a visa when a slight balance of the primary considerations in favour of cancellation is measured against other considerations pointing strongly against cancellation. In many cases, the three primary considerations will not all point in the same direction. The balancing process is not intended to be mechanical. It is certainly not intended always to produce the result dictated by the preponderance of the primary considerations. If that were the intention, it would be pointless to instruct the decision-maker to have regard to the other considerations. For a decision-maker to regard himself or herself as bound to give less weight to the other considerations than to the primary considerations would be a jurisdictional error. It would mean that the decision-maker would not have discharged his or her statutory function. (Emphasis added). 28 In Milne the Tribunal had directed itself consistently with the former paragraph 2.17 of Direction No 21, saying that other considerations "will generally be given less individual weight than that given to the primary considerations": see Milne v Minister for Immigration and Citizenship [2009] AATA 360 at [9]. The error relied on by Mr Milne was said to be found in its concluding statement that: "[39] The Tribunal accepts that to re-establish himself in his country of origin in unfamiliar circumstances after a long absence would be extremely difficult for Mr Milne at his age and with his health issues. However, in weighing up all the circumstances of the primary considerations and then the secondary considerations (which must be given lesser weight than the primary considerations), the Tribunal concludes, for the reasons given, that the factors in favour of cancellation of the visa outweigh the factors against cancellation, and the discretion to cancel the visa should be exercised." (Emphasis added). 29 Gray J found that the use of the word "must" in paragraph [39] of the Tribunal's reasons was ambiguous. It could have meant that the Tribunal considered itself bound always to give more weight to the primary considerations than to other considerations. The alternative construction, accepted by his Honour, was that the Tribunal had concluded, in the circumstances of the particular case, that it should give less weight to the other considerations than it accorded to the primary considerations. In coming to this conclusion, his Honour was influenced by the fact that the Tribunal had correctly directed itself as to the manner in which the allocation of weight to relevant considerations was to be undertaken under the Ministerial Direction and his view that it was unlikely that the Tribunal had overlooked the relevant part of the direction which it had earlier set out in its reasons: see at 15-16. 30 In Martinez v Minister for Immigration and Citizenship (2009) 177 FCR 337 Rares J also considered the meaning and effect of paragraph 2.17 of the former Ministerial Direction No 21. His Honour said (at 358-9) that: "In my opinion the requirements of Direction No 21 do not dictate any particular outcome. Rather, they reflect factors which must be considered by a decision-maker together with others which may be considered. Merely because two of the factors require that the protection of the Australian community and its expectations are to be given weight as primary considerations, does not mean that they necessarily and in every case will outweigh one or more other considerations, even if they are not primary considerations. However, by identifying some primary considerations and requiring the decision-maker to give weight to them, the direction emphasises that the decision-maker must have regard to those matters as a fundamental part of his or her deliberation. That does not preclude the decision-maker determining that some other factor is more important in particular circumstances." 31 I approach the reading of the Tribunal's reasons in the present case conscious of the principles of restraint that properly attend judicial review of tribunal decisions: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; Collector of Customs v Pozzolanic Enterprises (1993) 43 FCR 280 at 287. 32 I have, with some hesitation, come to the view that the Tribunal in the present case has misdirected itself and failed to appreciate that it was open to it, consistently with the Ministerial Direction, to conclude that the "other considerations" which weighed in the applicant's favour could carry more weight than the two adverse primary considerations. 33 I have come to this conclusion for a number of reasons. The first is that nowhere in its reasons does the Tribunal quote or accurately paraphrase the terms of paragraph 11(2). Notably missing from the paraphrase attempted in paragraph 10 (see above at [15]) is the word "generally". 34 The Tribunal returned to paragraph 11 at the point at which it embarked on a consideration of relevant matters which were not "primary considerations". At [64] it said that these other considerations "are given less weight than that given to primary considerations." Again, the important word "generally" is missing. 35 In coming to its conclusions the Tribunal became more emphatic. It said that the Ministerial Direction required that it "must give greater weight to the primary considerations" than to the "other considerations". Shortly afterwards it said that "because I must give less weight to these ['other'] matters, and two of those considerations only weigh slightly in his favour, they cannot swing the overall balance in favour of [the applicant]." 36 Nowhere in the reasons is paragraph 11(2) quoted. In the four places in which it is referred to it is not correctly paraphrased either because (on the first two occasions) the word "generally" is omitted or because (on the latter two occasions) it is incorrectly expressed as an obligation ("must") which requires the decision maker to give greater weight to the primary considerations and less weight to the other considerations, regardless of how compelling one or more of the "other considerations" might be. 37 The impression of misdirection is compounded by the statement in paragraph [81] that "because I must give less weight to these matters, and two of those considerations only weigh slightly in his favour, they cannot swing the overall balance in favour of [the applicant]…" In this passage the Tribunal gives two reasons for rejecting the applicant's submission that the other considerations which were personal to him should outweigh the two adverse primary considerations on which the delegate had relied. Had the Tribunal said no more than that the personal considerations did not weigh in the balance as heavily as the two primary considerations there would have been no error. The Tribunal, however, assigned a second reason for not holding that the personal considerations prevailed: it was that it "must give less weight to these matters." 38 As already explained, this reasoning is flawed. Moreover, the giving of two reasons undermines any suggestion that the word "must" was used ambiguously as it was in Milne. 39 Counsel for the Minister submitted that, even if the Tribunal had erred in applying paragraph 11(2), that error could not possibly have affected the ultimate outcome of the decision. He relied particularly on the decision of Marshall J in Minister for Immigration and Citizenship v JSFD (2010) 185 FCR 288. One of the issues in that case was whether the Tribunal had erred in taking into account, in an applicant's favour, one of the "other considerations" identified in the Ministerial Direction. His Honour held that, even if the Tribunal had erred in taking the matter into account, "it was just one of many matters labelled as 'secondary considerations' which were given lesser weight than the four primary considerations." He held that such an error "did not involve an error in the sense described in Minister for Immigration and Multicultural Affairs v Yusuf … which affected the exercise of the Tribunal's power": see at 300. 40 In Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 351 McHugh, Gummow and Hayne JJ held that a tribunal would fall into jurisdictional error by "ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power …" This was a restatement of the principle expounded by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at 40 that: "Not every consideration that a decision-maker is bound to take into account but fails to take into account will justify the court setting aside the impugned decision and ordering that the discretion be re-exercised according to law. A factor might be so insignificant that the failure to take it into account could not have materially affected the decision … A similar principle has been enunciated in cases where regard has been had to irrelevant considerations in the making of an administrative decision …" 41 In cases in which the relevant/irrelevant considerations grounds of judicial review are relied on it will often be necessary for the reviewing Court to attribute some weight to a factor which has or has not been taken into account in order to determine, having regard to the totality of the decision-maker's reasons, whether or not that factor had a material bearing on the outcome of the case. It is, however, to be borne in mind that Mason J, immediately after the passage just quoted went on to stress that it was "not the function of the court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator." 42 The present is not, however, a case in which the Tribunal, unencumbered by statutory constraint, has identified and weighed relevant considerations in determining how to exercise a statutory discretion. The Ministerial Direction required that some considerations be treated as "primary" and others as being of lesser status. Paragraph 11(2) of the Ministerial Direction required that "generally" greater weight was to be accorded to the primary considerations. There will, therefore, be cases, as was held in Milne and Martinez, in which non primary considerations will be found to outweigh primary considerations. The misdirection in the present case meant that the Tribunal foreclosed this possibility when it came to weigh the various matters which guided the exercise of its discretion. 43 In this respect the present case is more analogous to those cases, such as Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82, in which an antecedent error such as a denial of natural justice has occurred and the reviewing Court is required to determine whether the breach did or did not affect the outcome of the application. In such cases the reviewing Court has to be affirmatively satisfied that the error could have made no difference to the outcome: see Aala at 116-7 (per Gaudron and Gummow JJ) and 130-1 (per Kirby J); Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145-6. 44 It is true, as the Minister submits, that the "other considerations" which tended in the applicant's favour may not have been adjudged by the Tribunal to be sufficiently weighty to warrant a decision in his favour. I cannot, however, affirmatively be satisfied that, had the Tribunal not misdirected itself, it would have made the same decision. The Tribunal had accepted that the applicant's family ties and relationships with others in Australia weighed against cancellation of his visa. He had been in Australia for more than five years and had formed an intimate association with an Australian lady who was expecting their first child. These considerations may or may not have persuaded the Tribunal that the discretion should be exercised in the applicant's favour. It is enough, for present purposes, for me to note that they may have done. 45 The applicant's first ground has been made out.

THE SECOND GROUND 46 The applicant's second ground was that the Tribunal had failed properly to consider the seriousness of the applicant's criminal conduct. He contended that the Tribunal was required, by paragraphs 10.1.1(3) and (4) of the Ministerial Direction, but failed to consider whether the offending was attended by aggravating features and information from an authoritative source in respect of the applicant, including the trial judge's sentencing comments. 47 I do not consider that the Tribunal erred in this way. The trial judge's sentencing remarks were short and, as the applicant conceded, were of limited assistance save to the extent that they pointed to ameliorating factors which influenced the judge in fixing the penalty which he imposed. The Tribunal quoted the trial judge's remarks but then, as it was entitled to do, placed those remarks in context by examining the particular offences and the circumstances in which they were committed. The Tribunal was not thereafter deflected from its task by having to deal with the attempt by the applicant to persuade it to proceed on a basis which was inconsistent with the guilty pleas. This attempt did not, in any event, lead to it not giving attention to the matters mandated by the Ministerial Direction. 48 The applicant's second ground has not been made out.

DISPOSITION 49 In the event that he was successful, the applicant sought an order that the Tribunal's decision be set aside and that the proceeding be remitted to the Tribunal, differently constituted, to be determined according to law. 50 The parties were agreed that costs should follow the event. 51 For the reasons which I have given the application should be allowed with costs and the decision under review set aside. The proceeding should be remitted to the Tribunal to be heard and determined according to law. 52 I do not consider it appropriate to order that the Tribunal be differently constituted. Section 20B of the Administrative Appeals Tribunal Act 1975 (Cth) provides that it is the President of the Tribunal who "may give directions as to the persons who are to constitute the Tribunal for the purposes of a particular proceeding." It will be a matter for the President, upon remission, to consider whether or not the rehearing should be conducted by the same or another member. He will, no doubt, do so taking into account the principles identified by the Full Court in Comcare v Broadhurst (2011) 192 FCR 497 at [29]-[34], [88]-[95]. I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tracey.