Applicable Direction
71 Section 496(1) confers power on the Minister to delegate 'to a person any of the Minister's powers under this Act'. Section 499 of the Act confers power on the Minister to 'give written directions to a person or body having functions or powers under this Act if the directions are about: (a) the performance of those functions; or (b) the exercise of those powers'. A person or body must comply with such a direction: s 499(2A).
72 There is no doubt that the delegate was bound to have regard to Direction 79 at the time of the delegate's decision. A failure to comply with the direction's express requirements as to the considerations to be brought to account and the manner in which those considerations were to be weighed in deciding whether to revoke a visa cancellation would constitute jurisdictional error on the part of the delegate: FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 19 at [6] (and the authorities there cited); Uelese v Minister for Immigration and Border Protection [2015] HCA 15; (2015) 256 CLR 203 at [61] - [68].
73 The requirements of Direction 79 fall within the description of mandatory relevant considerations of the kind referred to in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 39 - 40. Therefore, it was necessary for the delegate to take into account those mandatory relevant considerations to form the state of satisfaction (or not) for a legally effective decision under s 501CA(4) of the Act. Likewise, if a delegate had made a decision under s 501CA(4) at the time the Tribunal made its review decision, that delegate would have been bound to have regard to Direction 90 and the express requirements of that direction would have been mandatory relevant considerations for that decision.
74 Direction 90, in its terms, takes effect from 15 April 2021. Therefore, there is a conceptual difficulty for the Tribunal to affirm, vary or substitute a decision of the delegate made or deemed to have been made on 23 February 2021 and with effect from that date by reference to a Ministerial direction that did not exist and that the delegate was not bound to take into account at that time. However, that conceptual difficulty does not arise if the Tribunal decides to set aside the delegate's decision and remit it to the delegate for reconsideration because on a reconsideration the delegate would be required to re-exercise the delegate's function or power under s 501CA(4) and form the state of satisfaction (or not) at that time. In so doing, the delegate would be constrained by Direction 90. Therefore, in that sense, applying Direction 90 would not involve taking into account a consideration that the delegate could not take into account if it were remitted to the delegate for reconsideration: Frugniet at [53]. Thus, the conceptual difficulty associated with affirmation or variation is not congruent with Direction 90 having no application at all to review of the delegate's decision.
75 Direction 90, in its terms, refers to the considerations a 'decision-maker' must take into account when making a decision under, amongst other provisions, s 501CA(4) of the Act. The expression 'decision-maker' is defined to mean 'a delegate of the Minister, or a body (such as Administrative Appeals Tribunal), making a decision under section 501 or 501CA of the Act'. Therefore, Direction 90 purports to apply directly to a review of the Tribunal of a decision made in the exercise (or not) of power under s 501CA(4) of the Act. Further, Direction 90 purports to apply at the time the Tribunal makes its decision on review.
76 In Williams v Minister for Immigration and Border Protection [2014] FCA 674; (2014) 226 FCR 112, Mortimer J (as her Honour then was) considered the extent to which the Tribunal was bound by Direction 55 in the review of a decision of a delegate made in relation to the exercise of the discretion conferred by s 501 of the Act. Her Honour considered that the power of the Minister to give directions under s 499 extended to the performance of functions under the Act and the Tribunal's review of a delegate's decision by operation of s 500 was the performance of a function under the Act: Williams at [72]. Therefore, Direction 55 applied directly to the performance of the Tribunal's review function under s 500 of the Act read with ss 25 and 43 of the AAT Act. Here, the applicant has made no challenge to validity of Direction 90 on the ground that it had no direct application to a decision of the Tribunal on review of a decision of a delegate concerning the exercise of power under s 501CA(4) or to the correctness of Williams.
77 In Jagroop (at [61]) Kenny and Mortimer JJ (Dowsett J agreeing), rejected the contention that the applicant in that case had an 'accrued right' under Direction 55 for three reasons. First, because the source of the applicant's right to have the discretion the delegate exercised under s 501 reviewed arose under ss 25 and 43 of the AAT Act read with s 500 of the Act. Second, an 'accrued right' was 'contrary to the terms of s 499(2A) which require that a person or body to whom the direction is given complies, at the time it comes to make the relevant decision, with Direction 65.' Although the applicant sought to distinguish Jagroop on the basis that it dealt with an accrued right under Direction 55, the reasoning at [61] of the decision is consistent with Williams and, in substance, assumes the correctness of basis of that decision. Third, because neither the content of Direction 55 nor the content of Direction 65 determined how the discretion (under s 501 in that case) will be exercised in any given case.
78 In Williams (at [22]-[44]) Mortimer J also considered the legal character of a direction given under s 499. Her Honour highlighted the existence of the difference between policy considerations, often set at ministerial level, and statutory instruments. Statutory instruments form part of the law and may be the source of executive functions or powers. Ministerial policies are not part of the law, but provide guidance regarding the exercise of executive functions or powers. Departure from ministerial policy may result in jurisdictional error where it results in a failure to exercise functions or powers according to law or in exceeding the lawful limits of functions or powers.
79 Her Honour observed (at [26]) that the 'legal difference between an executive policy promulgated ministerial level and an executive policy promulgated at ministerial level which then becomes a direction under a provision such as s 499, in particular given the terms of s 499(2A), has not been fully explored in the authorities.' However, in Uelese Robertson J concluded that Direction 65 was not a legislative instrument within the meaning of the Legislative Instruments Act 2003 (Cth) primarily because the Minister is giving directions as to the exercise of a discretion and, properly construed, Direction 65 did not alter the scope or content of the power.
80 In Williams (at [68]-[69]), when considering the nature of the Tribunal's function under ss 25 and 43 of the AAT Act read with s 500 of the Act, Mortimer J drew attention to the distinction between administrative decision-making which may call for the application of executive policy and judicial decision-making which does not and the advantages of consistency in administrative decision-making. Her Honour then cited the following passage from the decision of Brennan J in Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 (at 643-645) in which his Honour explained why in areas such as deportation the exercise of power in accordance with politically formulated policies is important:
Administrative policy of the kind evoked by ss 12 and 13 of the Migration Act has a wide significance, affecting, as I have said, the character of Australian society. Such a policy is not conveniently formulated by this Tribunal.
A policy which the Minister may formulate and adopt to guide himself in exercising the power conferred by ss 12 and 13 is subject to parliamentary scrutiny, and ultimately to parliamentary control. Under the Westminster system of government, a Minister is politically responsible to the parliament for the policy adopted to guide the exercise of his discretionary power, and he should be left to formulate that policy in whatever manner he thinks appropriate from time to time. Administrative policies are necessarily amenable to revocation or alteration on political grounds, and they are best formed and amended in a political context.
Where a discretionary power guided by an administrative policy is exposed to review by this Tribunal, however, the powers with which this Tribunal is vested by s 43 of the Administrative Appeals Tribunal Act 1975 are wide enough to permit the sterilization or amendment of policy in its application to the cases which come here. Although the Tribunal ought not, indeed cannot, deprive itself of its freedom to give no weight to a Minister's policy in a particular case, there are substantial reasons which favour only cautious and sparing departures from Ministerial policy, particularly if parliament has in fact scrutinized and approved that policy.
If the Tribunal, in reviewing a decision made in pursuit of a lawful administrative policy, consciously departed from that policy, it would nullify not only the policy made by the repository of the discretionary power, but also any mechanism of surveillance which the relevant statute permits or provides. To depart from ministerial policy thus denies to parliament its ability to supervise the content of the policy guiding the discretion which parliament created. On some occasions, reasons may be shown to warrant departure from ministerial policy; for example, where the intervention of new circumstances has clearly made a policy statement obsolete.
But in general, it would be manifestly imprudent for the Tribunal to override a ministerial policy and to adopt a general administrative policy of its own. Although the practice of giving reasons for decisions inevitably spins out threads of policy from the facts of the cases, the policy developed in this way originates in the need to ensure that justice is done in individual cases, and it is a different development from a ministerial declaration of broad policy relating to the generality of cases. The Tribunal is no doubt able to refine a broad policy, but the laying down of a broad policy on deportation is essentially a political function, to be performed by the Minister who is responsible to the parliament for the policy he adopts. The very independence of the Tribunal demands that it be apolitical; and the creation of its deportation jurisdiction is intended to improve the adjudicative rather than the policy aspects of deportation decisions. The Tribunal is not linked into the chain of responsibility from Minister to government to parliament, its membership is not appropriate for the formulation of broad policy and it is unsupported by a bureaucracy fitted to advise upon broad policy. It should therefore be reluctant to lay down broad policy, although decisions in particular cases will impinge on or refine broad policy emanating from a Minister. Different considerations might apply if a reviewable discretionary power were not subject to ministerial supervision (see, in connection with ministerial supervision, Ansett Transport Industries (Operations) Pty Ltd v Commonwealth of Australia (1978) 52 ALJR 254).
If consistency in decision-making is sought, as it ought to be, the standards and values which a Minister expresses in a statement of lawful policy can be a constant reference point for each of the presidential members of the Tribunal in exercising the discretion in particular cases. Ministerial policy can be an aid to consistency among Tribunal decisions, and to consistency between the decisions of the Tribunal and those of the Minister. Decisions made under a statutory power and reviewed by the Tribunal are but a proportion of the decisions made under that power, and it would be a regrettable anomaly if the decisions which were not reviewed revealed different standards and values from those made on review.
81 In Jagroop, when dealing with the third reason for rejecting the 'accrued right' contention (the content of the directions did not determine how the discretion would be exercised, Kenny and Mortimer JJ (Dowsett J agreeing) said:
73 In the current proceeding, the applicant had, if the Tribunal was so satisfied, an entitlement to have the residual discretion in s 501(2) exercised in his favour. However, he had that right under both Directions. It was not Direction No 55 which gave him that right: that right arose by reason of the combination of ss 501 and 500 of the Migration Act and ss 25 and 43 of the Administrative Appeals Tribunal Act. Nothing changed in that respect for the applicant with the revocation of Direction No 55. It was open to him to secure the same outcome from the review, regardless of the fact that Direction No 65 had replaced Direction No 55.
…
78 In the present case, the discretionary power in s 501 has remained the same. The contents of Direction No 65, like the contents of Direction No 55, must inform the matters the Tribunal examines. …
79 Implicit in the way the applicant articulated the "right" was the proposition that Direction No 55 was in its content more favourable to the applicant than Direction No 65, with the consequence that the revocation of Direction No 55 and its replacement by Direction No 65 had an adverse effect on his interests. As already stated, however, we do not accept the submission that the revocation of Direction No 55, and its replacement with Direction No 65 caused any diminution in the content of the applicant's rights of review in the Tribunal. There being no amendment to s 500 or s 501 of the Migration Act, those rights were preserved and protected by the Administrative Appeals Tribunal Act itself, making provision for the Tribunal's review function. Despite the transformation of cl 9.2 (dealing with "Strength, duration and nature of the person's ties to Australia") from a primary consideration in Direction No 55 to become cl 10.2 and merely an "other consideration" in Direction No 65, with the concomitant loss of the benefit of cl 8(4) concerning the "generally" increased weight to be given to primary considerations, in our opinion that change did not necessarily make Direction No 65 "less beneficial" in a relevant way. Although Direction No 65 (like Direction No 55) is prescriptive, and detailed in its prescriptions, the current Direction, like its predecessor, is intended to be applied to each set of individual facts and circumstances presented to the decision-maker. The ultimate decision must therefore reflect the claims of, and evidence and information about, an individual. No matter where the factor "Strength, duration and nature of the person's ties to Australia" is located in the Direction, the evidence about a particular individual (and the claims made) may mean that this consideration is afforded the most weight of any factor. All these are evaluative assessments for the decision-maker, which the Direction cannot determine.
82 In DQM18 v Minister for Home Affairs [2020] FCAFC 110; (2020) 278 FCR 529, Bromberg and Mortimer JJ said:
35 In performing that task by way of the exercise of a personal power, the Assistant Minister is not bound by the terms of s 499 of the Migration Act to apply, or engage with, the terms of any ministerial direction given under that provision, such as Direction 65. However, even when the terms of a ministerial direction do compel consideration by a decision-maker of particular matters set out in that direction, the statutory task remains the same. Adhering to the structure of a ministerial direction must not distract from the primary statutory task, which is to consider (by way of active intellectual engagement) whether there is another reason to revoke the visa cancellation. In that task, the representations made by the person affected assume a primary and material role, irrespective of whether they engage directly with one of the matters in a ministerial direction. That is because the Minister has invited those representations, on the statutory question, and must therefore consider them. A reviewing court can generally expect to see such consideration reflected in the reasons given. That, as the Full Court observed in Omar, is part of the decision-maker confronting the reality of the exercise of public power.
83 Directions like Direction 79 and Direction 90 are administrative policies. The formulation of such policies is essentially political. The Minister is subject to parliamentary scrutiny and, ultimately to parliamentary control. Although an objective of administrative policy may be consistency of administrative decision-making, administrative policies are 'necessarily amendable to revocation or alteration on political grounds': Drake at 644 (per Brennan J).
84 It follows that Direction 79 was not part of the 'legal' framework by which the delegate was constrained at the time of the delegate's decision. It was an administrative policy of the executive that was a guide to administrative decision-making at that time, but it could not and did not mandate any particular outcome in its application. That is so even though the delegate was bound to apply Direction 79 as the administrative policy at the time of the delegate's decision.
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 operation 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 that decision. The effect of s 499(2A) of the Act was that independently the Tribunal was obliged to comply with Direction 90 when making a decision on review because that was the executive policy in force and that applied to the Tribunal's function under the Act at the time of the Tribunal's decision. Direction 79 and Direction 90 formed part of the administrative decision-making continuum that prevailed from the time of the applicant's representations until the Tribunal's decision upon review was made.
86 Although the delegate was constrained in the sense that the delegate was bound to comply with Direction 79 at the time of the delegate's decision and a failure to take into account a mandatory relevant consideration of Direction 79 would have deprived the delegate's decision of legal effect, it was not a legal constraint on the exercise (or not) of power under s 501CA(4). It was a statement of executive policy regarding the exercise (or not) of that power at that time, but it had no bearing on the rights of the applicant under s 501CA(4). Put another way, it contained no right to have the power of discretion under s 501CA(4) exercised in any particular way at the time of the delegate's decision. The Tribunal's review involved deciding if the delegate's decision not to revoke the cancellation of the applicant's visa was the correct or preferable decision by reference to executive policy at the time the Tribunal exercised its review function under the Act. That executive policy was relevant to the performance of that review function.
87 It follows that the application for judicial review on amended ground 1 must be dismissed.