Shaw v Minister for Immigration & Multicultural Affairs

the applicant's grounds 26 The applicant's grounds 2 and 3 overlap. His primary argument is that the reasoning provided in the briefing paper, which the respondent adopted, involves an application of Direction No 17. The application of the Direction has been regarded as a fetter upon the discretion given by s 501(2) and as constituting an error of law. The limit upon the respondent's discretion arises because the Direction requires a greater weight, or pre-eminence, to be given to primary considerations in every case. Even though the briefing note contained advices that the Minister was not bound by the Direction and was free to give such weight to different factors as he chose, it was not substantially different from the advice in Ruhl v Minister for Immigration and Multicultural Affairs (2001) 184 ALR 401 ('Ruhl'). There Cooper J held the Direction nevertheless to have been applied and to have operated as a fetter upon the Minister's discretion. 27 The balance of the applicant's contentions concern the 'other considerations' to which the Minister may have regard. It was submitted that the failure to list in the briefing note all the 'other considerations' identified in the Direction gave greater emphasis to the pre-eminence accorded to the primary considerations. This would not seem to me to take the applicant's principal submission any further. I also understood the applicant to submit that the failure to list all the 'other considerations' might itself amount to a reviewable error. It would not however seem to me that it could be said that the Act obliged the Minister to take each of these other matters into account (Minister For Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24), assuming for present purposes that s 476(1)(c) extends to a failure to take into account a relevant consideration. 28 Ruhl's case, upon which the applicant relies, followed the decision of Dowsett J in Aksu v Minister for Immigration & Multicultural Affairs [2001] FCA 514 ('Aksu'), that the application of Direction 17 was inconsistent with the intention contained in s 501(2) that the discretion be unfettered (at [28]). The problem with the Direction, in his Honour's view, was the use of categories and the prescription that '… no individual considerations can be more important than a primary consideration …'. The effect, in his Honour's view, was that in every case, considerations concerning the protection or expectations of the community must be treated as at least equally important as any non-primary consideration (at [22]). 29 His Honour went on (at [23] - [24]): 'The qualification that "a primary consideration cannot be conclusive in itself" is of little effect. Two primary considerations, protection and expectations will be present in almost all cases, militating in favour of refusal or cancellation of the visa. Where there are two primary considerations, and no other consideration can have more weight than either of them standing alone, an almost mathematical logic compels a decision which upholds those primary considerations. Further, as the primary considerations are really direct outcomes of the person's bad character, the effect is that once he or she fails the character test, there is virtually a prescription in favour of refusal or revocation of the visa. This is inconsistent with the unfettered discretion conferred by s 501. It is one thing to say that some factors should generally be treated as more important than others. … It is quite another thing to say that a particular consideration must always be treated as at least equally important as another consideration without regard to the facts of the case.' 30 The question whether the primary considerations would be applied to the disadvantage of the non-citizen in every case was considered by Whitlam J in Turini v Minister for Immigration & Multicultural Affairs [2001] FCA 822 ('Turini'). His Honour expressed disagreement with the view in Aksu, that the primary considerations in the Direction are direct outcomes of a person failing to satisfy a decision-maker that they pass the character test. His Honour went on (at [29]): '…First of all, the third of the primary considerations may not be ignored, although it may have no application in some cases. More importantly, the factors relevant to the first primary consideration are not exclusively stated in paragraph 2.5 of the direction, as the word "include" indicates. A person may not pass the character test and yet be able to demonstrate that he or she presents no risk to the community. In my opinion, there is ample scope for an individual's particular circumstances to be advanced under the rubric of the primary considerations so that the balancing process mandated by Direction No 17 will not fetter the discretion under s 501(1) of the Act.' 31 It followed, in his Honour's view, that Direction No 17 was a valid direction under s 499(1) of the Act. 32 Drummond J in Jahnke v Minister for Immigration & Multicultural Affairs [2001] FCA 897 agreed with Dowsett J in Aksu that par 2.2 of the Direction imposes an unlawful fetter because in no case can a non-primary consideration, telling against the cancellation of a non-citizen's visa, be given more weight than the three primary considerations. His Honour however did not agree with all the reasoning in Aksu and agreed with Whitlam J in Turini that the primary considerations are not necessarily 'direct outcomes' of a person failing to pass the character test. A conclusion was not inevitable that there would be an unreasonable risk if the person remained. A consideration of the first two primary considerations might favour non-cancellation. 33 Accepting the reasoning in Turini as correct, it would follow that the application of the Direction in every case might not have the effect of limiting the range of discretion conferred by s 501(2) which would amount to a fetter upon the discretion: Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 640-641. Even accepting that most offences requiring a sentence of twelve months or more of imprisonment might be regarded as serious, it may nevertheless be shown that the non-citizen does not present a risk. Where children are involved, a decision-maker might be persuaded that their best interests outweigh the risk to the community, though much might depend on the level of that risk. It may further be observed that, whilst no one non-primary consideration can prevail over a primary consideration, this might not preclude a number of them having that effect. 34 It may be therefore that the Direction will not operate to the extent predicted in Aksu. However there remains the prospect of cases where a decision-maker determines that the non-citizen is at risk and that the community would expect their removal but where there are other relevant factors which might rationally militate against cancellation of the visa. The effect of the weighting required by the Direction would require cancellation. 35 The effect of Direction No 17 was raised in Awa v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 63, but not decided, the Full Court holding that the Tribunal had in fact engaged in a balancing exercise. It was again raised in Madafferi v Minister for Immigration & Multicultural Affairs [2002] FCAFC 220 (French, O'Loughlin and Whitlam JJ) ('Madafferi') in the context of the discretion given by s 501A of the Act to the Minister to set aside an original decision which had the effect of granting a visa or refusing to cancel it. There the Minister prepared a statement of reasons in which it was said that he had proceeded to his decision in accordance with the government's view on serious crimes, as set out in Direction No 17, and had had regard to the three primary considerations and other considerations. 36 A different approach was taken in Madafferi to the previous decisions. Their Honours considered 'the language of the Direction and the range of factors it requires to be taken into account' to be so broad as to be unlikely to fetter the discretion given (at [99]). Moreover the Direction did not bind the Minister. They acknowledged that decisions of this Court favoured the view that the vice in the Direction was that it codified the weight to be given to the three primary consideration, to the extent that no other consideration, such as the effect on the family unit, could ever prevail. Clearly the Court did not agree. The Court said (at [103]): '… The primary considerations are so broadly expressed as hardly to exclude the consideration of virtually all relevant factors. To the extent that matters personal to the applicant or other factors may be thought to have fallen outside the scope of these considerations, it is useful to return to the terms of par 2.17. In respect of matters other than "primary considerations" it is accepted that they may be relevant and that where relevant " … it is appropriate that these matters be taken into account but that they be given less individual weight than that given to the primary considerations". The term "appropriate" does not preclude a different relative weighting being given to those matters. Nor does it preclude their combined weight from overcoming the primary considerations.' 37 The Court held that the Minister's discretion had not been shown to have been fettered by the use of the Direction and that he had engaged in a balancing exercise. 38 It is plain enough that a Full Court has held that the application of the terms of Direction No 17 does not have the effect of fettering the exercise of a discretion whether to cancel a visa. The reasoning applies with equal force to the discretion under s 501(2) and I am obliged to apply it. I do however have some difficulty with the notion that there is no policy of weighting in pars 2.2 and 2.17 of the Direction or that the reference to it being 'appropriate' to take matters into account overcomes the requirements as to weighting. 39 Assuming, for present purposes, that the Minister did apply the Direction it would follow that there was no error of law. In particular it cannot be said that the decision was not authorised by the Act (s 476(1)(c)). The application therefore fails. For completeness however I shall deal with the additional question raised by the applicant's contentions, namely whether the Minister in this case applied the Direction, in the way found in Ruhl. The argument necessarily assumes that the application of the Direction may improperly limit the exercise of the discretion in the manner referred to in the earlier cases and to the contrary of Madafferi. 40 In Ruhl the briefing note to the Minister contained these references (at [9]): '… In exercising your discretion you should consider the guidelines of your Direction No. 17… . While you are not bound by the section 499 direction on character in relation to exercising your discretion, it is a useful guide for the matters that you should consider and contains three primary considerations and a number of other relevant considerations that need to be addressed.' 41 Under 'Other Considerations' the memorandum advised (at [11] in Ruhl): '[34] Paragraph 2.17 of the Minister's Direction provides that other considerations may be taken into account by the decision-maker. It is the Government's view that where relevant, it is appropriate that these matters be taken into account but that they be given less individual weight than that given to the primary considerations.' 42 Cooper J in Ruhl held that although there were some differences in the terms of the briefing note in the Aksu case, and although the Minister was advised that he was not bound to apply the Direction, nevertheless he had in fact done so. 43 In Ruhl, it seems to me, there was no doubt but that particular weight had to be given to primary considerations. In the present case it was made plain that the respondent was not bound by the Direction. Further, whilst par 2.17 was later referred to in the briefing note, the respondent was aware that he was free to place such weight on the factors referred to in the Direction as he considered appropriate. Those factors included both primary and other considerations. There is nothing in the reasoning which follows in the briefing note, as to the various factors, which suggests that primary considerations were accorded greater weight, either as between themselves or over the other considerations identified as relevant. It does not therefore seem possible to conclude that the Minister's discretion was affected by any policy of weighting contained in the Direction. 44 The application will be dismissed with costs. I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kiefel.