The legal character of the Direction
22 Given some of the contentions made by the applicant it is necessary to deal with the legal status of the Direction.
23 For many decades, decision-making concerning deportation from Australia or visa cancellation for persons convicted of criminal offences has involved the application of significant policy considerations, often set at ministerial level. Some of the earliest cases dealt with by the Administrative Appeals Tribunal concerned how the Tribunal should exercise its powers in the face of these policies, as the extracts from Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, which I set out at [69] below, illustrate.
24 In Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 50 FCR 189, a Full Court of this Court considered the consequences of a misinterpretation or misapplication of criminal deportation policy. Having characterised (at 208) the reasoning in Drake (No 2) 2 ALD 634 as identifying ministerial policy as a relevant consideration, French and Drummond JJ said:
The question arises whether a misapplication or misconstruction of the Ministerial policy by the Tribunal gives rise to error which is reviewable on appeal to this court as an error of law. It must be accepted, as counsel for the Minister submitted, that Ministerial policy is not to be construed and applied with the nicety of a statute. Policies are not statutory instruments. They prescribe guidelines in general, and not always very precise, language. To apply them with statutory nicety is to misunderstand their function. On the other hand, where the existence and content of such a policy is to be regarded as a relevant fact which the Tribunal is bound to consider, a serious misconstruction of its terms or misunderstanding of its purposes in the course of decision-making may constitute a failure to take into account a relevant factor and for that reason may result in an improper exercise of the statutory power. If a decision-maker, not bound to apply policy, purports to apply it as a proper basis for disposing of the case in hand but misconstrues or misunderstands it so that what is applied is not the policy but something else, then there may be reviewable error. In a limiting case a policy may be so broadly stated as to cover all considerations properly brought to bear on the exercise of the discretion. In such a case misconstruction of the policy may reduce to misconstruction of the statute or misunderstanding of its purpose. In so saying, the Court accepts that the limits within which its jurisdiction to review decisions of the Tribunal is conferred require that it be exercised with restraint. In particular, the Court will not be concerned with looseness in the language of the Tribunal nor with unhappy phrasing of the Tribunal's thoughts. The reasons for its decision are not to be construed minutely and finely with an eye keenly attuned to the perception of error: Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 286-287.
25 In this extract, French and Drummond JJ drew an express distinction between ministerial policy and a statutory instrument, although ultimately their Honours concluded that the policy had sufficient legal effect for a misapplication or misinterpretation of it to be capable of constituting legal error.
26 The legal difference between an executive policy promulgated at 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. The analysis may have been complicated by the introduction of the Legislative Instruments Act 2003 (Cth) (LIA) and the capacity of a document to become, by force of s 5(3) of that Act, a legislative instrument and a document with at least a deemed legislative character. Characterisation as a legislative instrument can influence the approach to construction and application of the instrument (see ss 2, 15AE, 46), and is capable of affecting the legal consequences of misinterpretation or misapplication of it.
27 By s 499(3), the Minister must lay a direction before each house of Parliament, but there is no provision for disallowance. Tabling may thus be seen as a form of accountability and transparency for which the legislation provides, rather than an indication of the legal character of the direction, just as, in respect of earlier executive policies about deportation or visa cancellation, the responsible Minister announced the policy in Parliament: see, eg, Re Becker and Minister for Immigration and Ethnic Affairs (1977) 1 ALD 158 at 164 per Brennan J.
28 Previous ministerial directions in relation to the powers in s 501 have been registered and therefore affected by the deeming provision in s 5(3) of the LIA. Other current ministerial directions made under s 499 are also registered. Direction No 55 is not registered. In my opinion that fact does not necessarily mean the Direction is not legislative in character.
29 An executive decision whether or not to register a direction is not capable of changing the character of the direction itself, whether by reason of the definition of "legislative instrument" in the LIA, or by application of general law principles.
30 Its character is drawn from the nature and content of the power which is exercised under s 499. The character is important as I have said: first, because it affects the approach to construction (cf Gray 50 FCR 189) and, second, because it may affect the consequences of misinterpreting or misapplying a direction, although to some extent those consequences may be said to flow from the mandatory effect of s 499(2A).
31 The definition in s 5(1) of the LIA incorporates the approach of well-established authorities such as Queensland Medical Laboratory v Blewett (1988) 84 ALR 615 to the question of when an instrument has a legislative character. The effect of s 499(2A) may well be important in the characterisation of a ministerial direction under s 499. Provisions such as s 7 of the LIA take certain instruments outside the definition. Item 21 of the Table in s 7 may include ministerial directions under s 499 although the fact that those directions, on the present state of authority, extend to the Tribunal may mean Item 21 is inapplicable. If a ministerial direction under s 499 is a legislative instrument, failure to register it renders it unenforceable by or against the Commonwealth, or by or against any other person or body: see s 31. This in turn raises an issue about the relationship between s 499(2A) and the prohibition in s 31 of the LIA. At least one Full Court decision appears to have assumed a direction is a legislative instrument, although not Direction No 55: see Milne v Minister for Immigration and Citizenship (2011) 120 ALD 405; [2011] FCAFC 41 at [54].
32 These are questions of some complexity, which were not argued in this proceeding. Both parties submitted the Direction was not a legislative instrument, but it is unclear whether the basis for this submission extended beyond the fact of non-registration when compared to previous s 501 directions. If so, the effect of s 31 of the LIA (and its effect if any on the obligation in s 499(2A)) would need to be considered, if the Direction is otherwise within the definition in s 5 of the LIA.
33 Ultimately I have concluded it is unnecessary to decide these questions in this proceeding. That is for two reasons. First, there is no issue of construction raised by the grounds of review in this case which in my opinion could be resolved differently depending on the character of the Direction. Second, although in my opinion the character of this Direction is likely to be significant in ascertaining whether a misinterpretation of it could render a decision without jurisdiction, there are several authorities in this Court which, although without analysis of the matters to which I have referred, have assumed a jurisdictional error can arise.
34 Authorities in this Court have expressly accepted that a failure to comply with ministerial directions made under s 499 can constitute a jurisdictional error: see Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583; [1999] FCA 1238 at [23] per Whitlam and Gyles JJ; Cockrell v Minister for Immigration and Citizenship (2008) 171 FCR 345; [2008] FCAFC 160 at [27]-[28]; Minister for Immigration and Citizenship v Obele (2010) 119 ALD 358; [2010] FCA 1445 at [53] per Katzmann J.
35 Several Full Court decisions have treated this particular Direction as not only binding on the Tribunal, but also as the source of potential jurisdictional errors for non-compliance: see Uelese v Minister for Immigration and Citizenship (2013) 60 AAR 534; [2013] FCAFC 86; Demillo v Minister for Immigration and Border Protection [2013] FCAFC 134; Paerau v Minister for Immigration and Border Protection [2014] FCAFC 28.
36 The question of the relationship between a ministerial direction and the function or power on which it operates is an important one. The directions power in s 499 is broadly expressed and capable of operating in a variety of ways, with a greater or lesser impact on the relevant power or function under the Migration Act. Since its amendment in 1998, it is capable on its terms of being exercised to give specific directions in respect of a circumstance, or even perhaps an individual. A direction could, for example, concern a matter of process in terms of making a decision under the Migration Act. It could concern the manner of exercise of one of the detention powers. It could concern the way an officer is to deal with the receipt of a visa application. In some circumstances, the compliance required by s 499(2A) may be straightforward.
37 The applicant submitted that the effect of this particular Direction is to supply the content for the exercise of the discretion contain in s 501 of the Migration Act. I accept that submission subject to the qualification that the Direction does not evince an intention to exhaust the permissible matters which may be taken into account in making a cancellation decision: see the terms of para 10(1) to which I have earlier referred.
38 In para 6.1(3), the Direction describes its role as
to guide decision makers performing functions or exercising powers under section 501 of the Act to refuse to grant a visa to, or to cancel the visa of, a person who does not satisfy the Minister that the person passes the character test.
39 Paragraphs 6.2 and 6.3 of the Direction, respectively entitled "General Guidance" and "Principles", are expressed in terms of any policy formulated by the executive government to guide administrative decision-making. To this point, and taking into account the terms of para 6.1(3), the Direction does purport to offer "guidance" only.
40 Thereafter, however, in my opinion the remainder of the Direction is intended to, and does more than, "offer guidance". This is especially so when s 499(2A) is taken into account. The Direction prescribes, to a significant extent, how the discretion in s 501 is to be exercised. Indeed that is how the heading to para 7 is expressed. It does this by setting out a range of "mandatory considerations" in Part A (read with para 7(1)(a)), none of which s 501(2) itself expressly provides for: see, relevantly as to cancellation rather than refusal, Part A of the Direction in paras 9 and 10. It also directs a decision-maker as to which of those considerations the decision-maker should attribute more weight: see paras 8(2) and 8(4).
41 It can be seen that it is through para 7(1)(a) that the obligation to consider the matters in Part A and Part B is imposed. It is not imposed by the statute, but rather only by force of the Direction, read with s 499(2A). By para 7(1)(b) the Minister has decided to give the otherwise very broadly expressed and unconfined discretions in ss 501(1) and (2) specific content, and to specify the ultimate task to be performed by the decision-maker in exercising the discretion: namely, to decide whether the risk of future harm by a non-citizen is unacceptable. Again, if that task is intended by the statute to be required in the exercise of discretion, that is an implication to be drawn from the scope, subject matter and purpose of this part of the Migration Act. The express focus on this in the exercise of the s 501 discretion as the principal and, one might say, overriding objective is a creature of executive policy. Subject to any constitutional or other fundamental considerations, so long as it is not inconsistent with the statute or the regulations (see s 499(2)) it will be valid.
42 It was not argued that the content of this Direction constituted an unlawful fetter on the s 501 discretion or was otherwise invalid. Arguments to similar effect in relation to other ministerial directions have met with mixed results: see, eg, Madafferi v Minister for Immigration and Multicultural Affairs (2002) 118 FCR 326; [2002] FCAFC 220 at [99]; cf Howells v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 580; [2004] FCAFC 327 at [128]-[129], [134]; Shaw v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 142 FCR 502; [2005] FCAFC 106 at [87].
43 Nor was it argued that the content of this Direction engaged the prohibition or limit in s 499(2). The Direction does stipulate that certain matters are to be "mandatory considerations" which a decision-maker must take into account. A direction by the Minister to a delegate, or to the Tribunal, that a consideration must be taken into account in exercising the power under s 501 of the Migration Act, may well be inconsistent with the Act if the scope, subject matter and purpose of s 501, properly construed, do not render that consideration a mandatory one. In other words, the operation of s 499(2), and, no doubt, general principles of interpretation, mean that the Minister cannot by a direction transform a consideration into a mandatory one if the Migration Act does not otherwise make it so. Again, these matters were not the subject of argument in this proceeding and their resolution should await an appropriate case.
44 Putting then to one side any questions about the validity of the Direction, nevertheless its nature and reach is intended to be an important control on the way in which the s 501 discretion is exercised.