Grounds of Appeal
17 The Tribunal plainly regarded itself as bound to apply Part 1 of Direction No. 17 in determining whether the applicant's wife passed the character test prescribed by s 501(6)(c) of the Act. This is hardly surprising since that was the basis upon which both parties presented their cases at the hearing before the Tribunal. Nonetheless, counsel for the applicant submits that paragraphs 1.9 and 1.11 of Direction No. 17 are invalid by virtue of s 499(2) of the Act because they are inconsistent with s 501(6)(c)(ii). This submission rests on a further submission by the applicant's counsel that s 501(6)(c)(ii) involves the exercise of a discretion.
18 One aspect of paragraph 1.9 strikes me as odd. Although s 501(6)(c) of the Act distinguishes "criminal conduct" from "general conduct", some of the matters specified in paragraph 1.9 (which is supposed to be concerned with general conduct) depend upon such conduct being criminal. This curious assignment within Direction No. 17 of certain kinds of conduct would not appear to matter so long as the decision-maker was obliged to have regard to such criminal conduct. A Full Court of this Court held in respect of a decision of the Tribunal on a forerunner of s 501(6)(c) that no importance can be attached to the fact that conduct, which was actually criminal conduct within the meaning of subpar (i), was considered on the basis that it was made relevant by subpar (ii): Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187 at 196.
19 However, that is not the basis of the present attack on the validity of the direction. Counsel for the applicant submits that a person cannot effectively be deemed not to be of good character because of the matters listed in (a) to (e) of paragraph 1.9. Such a direction is said to be inconsistent with s 501(6)(c) of the Act.
20 It may be accepted that Direction No. 17 is not a direction like the example given in s 499(1A) of the Act, but the power under s 499(1) is not limited to giving directions of that type. The scope for a valid direction depends on the nature of the functions to be performed or of the powers to be exercised under the Act. In a case where par (c) of s 501(6) is in issue, the visa applicant has to satisfy the decision-maker under s 501(1) that he or she is not a person who is not of good character. The identification of the decision-maker's task and consideration of how the decision-maker may properly go about it was recently explained by Hayne J in Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 75 ALJR 679 at 711-712:
"[188] … The subject about which the Minister was required to be satisfied was a subject which required the formation of a value judgment. It required the development of a view about what kinds of conduct are, or may be, inconsistent with being of good character. It obviously permitted the formation of a view that, in the absence of some countervailing consideration, certain kinds of past criminal conduct would sufficiently demonstrate that a person was not of good character. If the Minister formed such a view, and announced that this was the view that had been formed and would be applied in the administration of the Act, there could be no suggestion that the Minister had thereby prejudged any application which was to be made. The most that could be said is that the Minister had stated an understanding of what was meant by the statutory expression 'is not of good character' and had indicated how the Act would be administered. So long as the meaning adopted revealed no error of law (which it would if the meaning assigned lay outside the permissible range of circumstances that could be embraced by the expression) there could be no challenge to what was done. Given that the decision-maker is the Minister, the expression can be seen to embrace a wide range of permissible views.
[189] Moreover, the Act, by authorising the Minister to reach the relevant value judgment by having regard to 'the person's past criminal conduct' as opposed to 'the person's general conduct', permitted the Minister to form the view that certain kinds of past criminal conduct necessarily and inevitably demonstrated that a person was not of good character. Again, so long as the meaning which was thus assigned to the expression 'is not of good character' revealed no error of law, the fact that the Minister announced that he or she proposed to administer the Act according to that understanding could not be said to constitute the prejudgment of any particular case that may later arise.
[190] There is no prejudgment in such a case because of the nature of the statutory task. It is to reach a degree of persuasion (satisfaction) that a value-laden standard (is not of good character) is met. The determination of that standard is not a task which the Act requires the Minister to undertake wholly anew each time it is suggested that there may be a case for the exercise of the discretionary power, conferred by the Act, to cancel or refuse a visa. It was open to the Minister to determine the standard to be applied in a way that left little or no room for debate about its application in an individual's case.
[191] Determining the standard in that way would not fetter the exercise of a discretion. The relevant discretion which falls for exercise is the discretion to refuse to grant or, in these cases, to cancel a visa if s 501(2) applied to the person. All that the Minister does, in the circumstances posited, is announce the particular construction that the necessarily imprecise statutory standard will be given in certain kinds of case."
21 The statutory provision referred to in the last paragraph of the above excerpt has now been repealed. It was, however, the predecessor of s 501(6)(c) and what is said about the nature of the statutory task is, in my view, applicable in the present case. It does not matter that Hayne J's observations were made in a discussion of rules about bias or apprehension of bias. Fortuitously his Honour's explanation gives a good indication, in my view, of the scope for valid directions under s 499 of the Act in respect of such a "value-laden standard". Since the statutory expression "is not of good character" embraces a wide range of permissible views, the Minister may, in my opinion, give a direction that, "in the absence of any countervailing factors", certain kinds of conduct, such as those specified in paragraph 1.9 of Direction No. 17, betoken that a person is not of good character. The determination of such standards does not fetter any exercise of discretion. The final sentence of paragraph 1.7 of the direction is also significant and must, along with paragraph 1.11, be borne in mind by decision-makers, but their consideration of whether a person passes the character test does not involve the exercise of a discretion. The argument of counsel for the applicant is fundamentally misconceived, and the challenge to the validity of paragraph 1.9 is not made out.
22 Counsel for the applicant also submits that the phrase "not fully persuaded" in the first sentence of paragraph 1.11 of Direction No. 17 erects too high a standard of satisfaction and is inconsistent with the Act. However, counsel for the Minister submits, and I accept, that there is no relevant difference between being "fully persuaded" and being "satisfied" which is, after all, what s 501(1) of the Act requires. I think that, on a fair reading, the impugned sentence does no more than remind decision-makers that, where a person does not pass the character test notwithstanding evidence of good acts and recent good conduct, those other matters remain relevant to the exercise of the discretion.
23 Part 1 of Direction No. 17 is, in my opinion, a valid exercise of the power given by s 499(1) of the Act. The alternative submission of counsel for the applicant is that the Tribunal erred in its interpretation of paragraph 1.9 of the direction because it regarded itself as bound to apply its terms. No doubt, it did, but this was not an error. The direction was given to the Tribunal, and s 499(2A) of the Act obliges the Tribunal to comply with it.
24 Counsel for the applicant next submits that his client was denied natural justice by the Tribunal. He says that the Tribunal was obliged to warn the applicant that it would make the "assumption" recorded in its reasons which I have reproduced in [4] above. Its failure to do so is said to be procedurally unfair because the Tribunal later discounted heavily the applicant's emotional hardship "by the fact of his pre-knowledge of the likely consequences".
25 There is no substance whatsoever in this so-called natural justice ground. The applicant's knowledge of concern about his wife's character was plainly relevant in the circumstances of this case as paragraph 2.17(b) of Direction No. 17 made clear. A transcript of the hearing before the Tribunal is in evidence. It shows that his solicitor led evidence from the applicant on this topic and that, when the solicitor for the Minister sought to cross-examine him about the advice he received, his solicitor objected. The transcript also demonstrates that the Tribunal regarded the applicant's knowledge and expectations as an important topic and that the applicant's solicitor specifically addressed paragraph 2.17(b) of the direction in his submissions to the Tribunal. Although the Tribunal used the expression "[o]ne must assume", it has merely drawn an inference on the evidence and material before it that the applicant was given "accurate" legal advice. Such an inference could quite reasonably be drawn in respect of what was obviously a very live issue before the Tribunal. The Tribunal was under no obligation to give the applicant warning of the available inferences.
26 The final ground of appeal concerns the exercise of the discretion under s 501(1) of the Act. Part 2 of Direction No. 17 provides for three primary considerations. So far as the first of those considerations, the protection of the Australian community, is concerned, paragraph 2.5 directs that the likelihood of re-offending is a factor to be taken into account in the assessment of the level of risk to the community of the entry of the non-citizen. Paragraph 2.10 spells out the Government's view that, in undertaking such an assessment, a person's "previous general conduct and total criminal history are highly relevant". At the hearing before the Tribunal the applicant adduced evidence on this topic, including the second report prepared by the clinical psychologist, and his solicitor addressed this particular factor in his submissions. I accept, as counsel for the Minister submits, that the Tribunal was under no obligation to refer to the psychologist's second report, and it did not. But the important question remains as to the consequences of the Tribunal's failure to advert to this factor at all in its reasons for judgment.
27 After I reserved judgment in this case, Dowsett J held in Aksu v Minister for Immigration and Multicultural Affairs [2001] FCA 514 that Part 2 of Direction No. 17 is inconsistent with s 501(2) of the Act, which provides a discretion to cancel a visa. His reasoning would extend to the discretion under s 501(1) of the Act. His Honour expressed concern about the use of categories of considerations, "primary" and "other", and the prescription that I have highlighted in paragraph 2.2 reproduced at [13] above. Dowsett J said at [22] - [24]:
"22. This appears to mean that in every case, considerations concerning protection or expectation must be treated as at least equally important as any non-primary consideration, without regard to the facts of the case. Elsewhere, the Direction invites a balancing exercise which would normally involve an assessment of all relevant factors, having regard to their significance in the case in question. The Direction appears to fetter that process to the extent that it prescribes that some factors can never have more weight than others.
23. 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.
24. 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. Section 501 prescribes failure to satisfy the character test as a consideration precedent to the exercise of the discretion to refuse or cancel. It does not create any presumption as to the way in which that discretion should be exercised. The unfettered nature of the discretion inevitably implies that in particular circumstance any one factor may, at least theoretically, outweigh any other possibly relevant factor."
28 Dowsett J's decision has since been followed by Cooper J in Ruhl v Minister for Immigration and Multicultural Affairs [2001] FCA 648, who held that the Minister unlawfully fettered his discretion under s 501(2) by applying Direction No. 17. His Honour said at [39] this was so because:
"… He has accorded pre-eminence to the primary considerations and denied the possibility that the other matters particular to the circumstances of the applicant were entitled to greater importance than a primary consideration in the exercise of an unfettered discretion under s 501 of the Act."
29 As a matter of judicial comity, I am naturally inclined to follow the decision in Aksu, but I regret to say that I think it is wrong. I do not agree that the primary considerations are "direct outcomes" of a person failing to satisfy a decision-maker that the person passes the character test. 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.
30 It follows that, in my view, Direction No. 17 was a valid direction under s 499(1) of the Act, with which the Tribunal was bound to comply. Accordingly, it was bound to take account of the likelihood of re-offending in assessing the risk to the community posed by the entry of the applicant's wife to Australia. This factor was a part of the applicant's case, and the Tribunal was not entitled to ignore it. Such an aspect of a primary consideration was significant where the Tribunal plainly regarded his wife's earlier conduct in Australia as criminal. The failure to take into account this relevant consideration was an error of law.
31 The appeal will be allowed with costs. The decision of the Tribunal will be set aside, and the application for review of the delegate's decision will be remitted to be heard and decided again by the Tribunal.
I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Whitlam.