Ground 1 - consideration
80 Paragraph 8(3) of Direction No 65 provides that both primary and other considerations may weigh in favour of, or against, whether to revoke the mandatory cancellation of a visa. Paragraph 8(4) of Direction No 65 then provides that primary considerations should "generally" be given greater weight than the other considerations. When sub-paragraphs 8(3) and (4) are read together, it may be accepted that the Tribunal is not required in all circumstances to give greater weight to primary considerations, and depending upon the particular circumstances, one or more "other" considerations are capable of outweighing the primary considerations.
81 In Suleiman v Minister for Immigration and Border Protection [2018] FCA 594; 74 AAR 545, Colvin J made an order setting aside a decision of the Tribunal that had treated "other" considerations referred to in Direction No 65 as "secondary" considerations. Colvin J held at [26] and [28] -
26 It is true that the Tribunal did not in terms state that secondary considerations could not be treated as having equal or greater importance in any particular case. However, equally it did not say that despite the description 'secondary considerations', they may be afforded equal or greater weight than primary considerations in an appropriate case. In my view, the use of the term 'secondary' conveys an interpretation of Direction 65 that establishes a hierarchy of considerations to be applied in all instances. It is a term that the Tribunal used in the heading before considering the other considerations: at [89]. It is also a term that it used when weighing the primary considerations and the other consideration of risk of harm if Mr Suleiman was returned to his country of nationality.
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28 To treat the other consideration as secondary irrespective of its character in the particular case does not conform to the language of Direction 65. So, in this case, even though the Tribunal found that the applicant was 'at risk of harm - arguably even death given the consequences that flow from this mental disability if left untreated' this was a matter that it placed as always being of lesser importance than the primary considerations. The Tribunal did not consider, as it was required to do by Direction 65, whether in the specific circumstances the non-refoulement obligations should be afforded greater weight.
82 In a later case, Minister for Home Affairs v HSKJ [2018] FCAFC 217; 266 FCR 291, the Full Court (Greenwood, McKerracher and Burley JJ) addressed the question whether "other" considerations, to which the Tribunal had also referred as "secondary" considerations, had been treated such that they could not be afforded equal or greater weight than primary considerations. This question directed attention to the Tribunal's written statement, which the Full Court held, when read as a whole, did not reflect an understanding that "other" considerations must always be given less weight than primary considerations. The Full Court reasoned as follows -
[31] First, at [96] the Tribunal considers its findings (at [95]) that the respondent assisted US military forces in Iraq in some capacity and faces some risk of harm if returned to Iran because of this association weighs to some degree in favour of revocation. It poses the question as:
[W]hether this finding in relation to what is an "other" or "secondary" consideration outweighs the Tribunal's findings in relation to the primary considerations detailed above.
[32] The reference to "secondary" in this context is ambiguous, because it may be synonymous with "other" or refer to an inferior consideration, but at [97], the Tribunal proceeds to observe that it "needs to weigh" these safety concerns with the "very strong" earlier identified (primary) concerns in relation to the seriousness of the respondent's crimes, the risk of further offending and what this would mean for the Australian community. At [98] it goes on to note that the primary considerations in Direction 65 are normally given greater weight than other considerations and that the Tribunal finds "that the primary considerations here clearly outweigh this secondary consideration" (emphasis added). The reference to "normally" indicates that the standard that the Tribunal is applying is not one that inevitably gives lesser weight to the "other" or "secondary" consideration, but that normally one does so. That is not an inaccurate characterisation of Direction 65, which in section 8(4) provides that "primary considerations should generally be given more weight than other considerations". The word "normally" indicates that the other consideration may sometimes not warrant lesser weight. Further, the finding that the primary considerations here outweigh the secondary consideration indicates a balancing exercise on the part of the Tribunal that would be redundant if it had considered that a primary consideration would always prevail over a secondary consideration.
[33] This understanding of the Tribunal's reasons is in our view supported by the language used at [104], where the Tribunal concludes in its consideration of the "strength, nature and duration of ties" that it is not convinced that "on balance" they outweigh the primary considerations identified earlier.
[34] Further, in its conclusions at [119]-[124] (set out in full above) the Tribunal engages in a process that proceeds to weigh the "other" considerations, which it finds are in favour of revocation, against the countervailing considerations and concludes that on balance they do not "outweigh the other primary considerations" which are "generally afforded greater weight" (emphasis added). This language indicates that the Tribunal did not take the view that "other" considerations were always subservient to primary considerations.
[35] Taken together, we consider that the ambiguity apparent from the twice used word "secondary" does not reflect the error that the learned primary judge considered had arisen. At this point we should note that we have not here been asked to consider in this context the correctness of Suleiman. …
83 In order to evaluate the applicant's submissions in the present case, it is necessary to read the Tribunal's written statement fairly, and as a whole. The Tribunal referred in a number of places to "other" considerations as "secondary" considerations. However, I am not persuaded that as a matter of substance the Tribunal fell into error in the way that it evaluated those considerations. The Tribunal used the term "secondary considerations" interchangeably with "other considerations", as [128] of its written statement set out under [49] above demonstrates. To avoid ambiguity, it might have been better to use the term "non-primary considerations", as Drummond J did in Jahnke v Minister for Immigration and Multicultural Affairs [2001] FCA 897; 113 FCR 268 at [18]-[19] and [21] when considering the terms of Direction No 17. However, fairly read, I consider that the Tribunal used the term "secondary" to convey more clearly the fact that the "other" considerations were not primary considerations, in circumstances where, as the Tribunal recognised at [128], primary considerations are generally to be given greater weight than the other considerations. Although at [128] of its written statement the Tribunal used the word "normally" rather than "generally", this did not involve any material departure from the import of Direction No 65.
84 As to the applicant's submission that the Tribunal had erred in the way that it went about weighing the primary and secondary considerations, I do not accept that when read as a whole, the written statement discloses error of that type. The structure of the Tribunal's written statement relevant to this ground of review is as follows -
(1) At [70], the Tribunal found that the applicant posed an unacceptable risk to the Australian community that weighed against any revocation of the decision to cancel his visa. This addressed the first primary consideration, namely protection of the Australian community from criminal or other serious conduct.
(2) At [82], the Tribunal concluded that the best interests of the applicant's children favoured revocation of the decision to cancel the applicant's visa. However, this consideration did not outweigh the nature and seriousness of the applicant's offending, and the significant risk to the Australian community and to his family should he reoffend. This addressed the second primary consideration, namely the best interests of minor children in Australia.
(3) At [87], which I have set out at [36] above, the Tribunal concluded that the expectations of the Australian community were that the applicant, who had been convicted of very serious offences involving domestic violence, and who had shown disregard for the laws of Australia, and who had shown a lack of insight into the nature and consequences of his conduct, should expect to lose his visa. This addressed the third primary consideration, namely the expectations of the Australian community.
(4) At [127]-[128], which I have set out at [49] above, after considering at some length the claims made on behalf of the applicant by reference to international non-refoulement obligations, the Tribunal concluded that the concerns that the Tribunal had in relation to refoulement and permanent detention did not outweigh the primary considerations, finding that the primary considerations "clearly outweigh any secondary considerations". This addressed the non-primary consideration referred to in paragraph 14(1)(a) of Direction No 65, namely international non-refoulement obligations.
(5) At [135], the Tribunal concluded that the applicant had contributed to some degree to the Australian community, and accepted that the applicant's wife and children would be negatively affected if the Tribunal did not revoke the decision to cancel the applicant's visa. While the Tribunal considered that these matters favoured revocation, it stated that it was not convinced that the nature and strength of the applicant's ties outweighed the primary considerations. This addressed the non-primary consideration referred to in paragraph 14(1)(b) of Direction No 65.
(6) At [140]-[142], the Tribunal concluded that although the applicant might face impediments if removed to Myanmar, and that this weighed in his favour, overall this consideration did not outweigh any of the primary considerations. This addressed the non-primary consideration referred to in paragraph 14(1)(e) of Direction No 65.
85 Up to [142], the Tribunal weighed the interests of minor children (the second primary consideration) against the first primary consideration, and it then weighed each of the non-primary considerations against "the primary considerations", which are fairly to be understood as being the first and third primary considerations that favoured cancellation of the applicant's visa. As an interim step in the reasoning process, I see no error in this approach. Each of the material considerations, both primary and non-primary, fell to be evaluated by giving them relative weight: they were not to be considered in an a priori way, or in a vacuum. This is recognised by sub-paragraphs 8(3) and (4) of Direction No 65 which invited a weighing process, including weighing primary considerations against each other. Weighing individual considerations in this way so as to give them relative weight, and thereby to put them into perspective, does not detract from a final, overall evaluative process.
86 Had the Tribunal's path of reasoning terminated at [142], there might have been some force in the applicant's claims that the Tribunal had failed to consider cumulatively those matters that favoured revocation of the decision to cancel the applicant's visa. However, it is tolerably clear from [151]-[152] of the written statement, which I have set out at [53] above, that the Tribunal considered the cumulative effect of all the considerations that favoured revocation against the considerations that favoured cancellation, and engaged in an overall balancing exercise before reaching the conclusion that the original decision to cancel the applicant's visa should not be revoked.
87 For the above reasons, I reject the first ground of review.