Did the Tribunal err in its approach to weighing considerations required to be taken into account by Direction 79?

FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 19 (22 February 2022)

Intro:-

The appellant is a citizen of New Zealand who has lived in Australia since he was a young child. He is now 33 years of age. By reason of his conviction and sentencing for grievous bodily harm in 2017, his visa was cancelled under s 501(3A) of the Migration Act 1958 (Cth). Power is conferred by s 501CA(4) to revoke the visa cancellation if the Minister is satisfied that there is reason to do so. A delegate of the Minister was not so satisfied and the cancellation was not revoked. The appellant sought review in the Administrative Appeals Tribunal.

Facts:-

In deciding whether to revoke the visa cancellation, the Tribunal was required to perform its function and exercise the power to revoke in accordance with any directions given by the Minister under s 499 of the Migration Act. At the time, there was such a direction in place being Direction 79 - Visa refusal and cancellation under s 501 and revocation of mandatory cancellation of a visa under s 501CA (Direction 79). Amongst other things, the direction identified the considerations relevant to former visa holders in determining whether to exercise the revocation power under s 501CA(4).

The Tribunal affirmed the decision of the delegate. The appellant then sought review in this Court on the basis of alleged jurisdictional error. The alleged error concerned the Tribunal’s understanding of what was required by Direction 79 when it came to weighing the relevant considerations specified in the direction.

A judge of this Court found that the Tribunal had misconceived what was required by Direction 79 when it came to the process of weighing up or balancing the relevant considerations but that the error could not realistically have affected the result. Therefore, on the basis that the error was not material, the application for review was dismissed.

Direction 79

The written submissions for the Minister stated that it is not contentious that non-compliance with Direction 79 may constitute jurisdictional error. In the course of the hearing it was accepted by counsel for the Minister that a failure to comply with the direction’s express requirements as to the considerations to be brought into account and the manner in which those considerations were to be weighed in deciding whether to revoke a visa cancellation would be jurisdictional. This position accords with a number of recent Full Court decisions concerning such directions: Kumar v Minister for Immigration and Border Protection [2020] FCAFC 16; (2020) 274 FCR 646 at [29] (Derrington and Thawley JJ); PQSM v Minister for Home Affairs [2020] FCAFC 125; (2020) 279 FCR 175 at [90] (Banks-Smith and Jackson JJ), compare [29]‑[45] (Mortimer J); and Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 125 at [179] (O’Bryan J, Katzmann J agreeing).

The issues raised concerned precisely what was required by Direction 79 when it came to weighing or balancing the relevant considerations specified in the direction when exercising the power conferred by s 501CA(4). In that regard, the following aspects of Direction 79 may be noted:

(1) The direction describes its contents as comprising, relevantly:
Preamble Contains the Objectives of this Direction, General Guidance for decision-makers and the Principles that provide a framework within which decision-makers should approach their task of deciding whether to exercise the discretion to cancel or refuse a non-citizen’s visa under section 501 or to revoke a mandatory cancellation under section 501CA.

...

Part C Identifies the considerations relevant to former visa holders in determining whether to exercise the discretion to revoke the mandatory cancellation of a non-citizen’s visa.

(2) The Preamble sets out ‘General Guidance’ in para 6.2. It includes a statement that ‘factors that must be considered in making a revocation decision [under s 501CA] are identified in Part C of this Direction’.

(3) The Preamble also sets out certain ‘Principles’. They include the following two Principles at para 6.3(5) & (7):

Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.

...

The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.

(4) There is a further statement in para 7 of the Preamble as to how the relevant discretion is to be exercised. Relevantly for present purposes it says:

Informed by the principles in paragraph 6.3 above, a decision-maker ... must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a noncitizen’s visa will be revoked.

(5) Then para 8 of the Preamble says:

Taking the relevant considerations into account

(1) Decision-makers must take into account the primary and other considerations relevant to the individual case. There are differing considerations depending on whether a delegate is considering whether to refuse to grant a visa to a visa applicant, cancel the visa of a visa holder, or revoke the mandatory cancellation of a visa. These different considerations are articulated in Parts A, B and C. Separating the considerations for visa holders; and visa applicants recognises that noncitizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa applicant should have no expectation that a visa application will be approved.

(2) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.

(3) Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.

(4) Primary considerations should generally be given greater weight than the other considerations.

(5) One or more primary considerations may outweigh other primary considerations.

(6) Part C specifies three primary considerations, namely:

a) Protection of the Australian community from criminal or other serious conduct;

b) The best interests of minor children in Australia;

c) Expectations of the Australian community.

(7) Part C also specifies other considerations which ‘must be taken into account where relevant’, namely:

a) International non-refoulement obligations;

b) Strength, nature and duration of ties;

c) Impact on Australian business interests;

d) Impact on victims;

e) Extent of impediments if removed.

It can be seen that Direction 79 specifies considerations which must be taken into account by a decision-maker such as the Tribunal in exercising the power conferred by s 501CA(4) to revoke a visa cancellation. The direction also differentiates between ‘primary and other considerations’. All specified considerations must be taken into account where relevant. However, when it comes to weighing those considerations, Direction 79 expressly requires that primary considerations should generally be given greater weight than the other considerations.

The ordinary meaning of the word ‘generally’ deployed in the manner in which it is used in the direction is to describe what is required in most instances. As was observed by the primary judge it conveys no more than ‘usually’, ‘commonly’ or ‘ordinarily’: at [23]. Therefore, as a matter of proper construction of the terms of the direction, the requirement to ‘generally’ give greater weight to the primary considerations means that there must be some matter specific to the circumstances of the case for giving one of the other considerations greater weight than any of the primary considerations before that can occur. Put another way, a decision could not be made on the basis that one of the other considerations, such as the strength, nature and duration of ties to Australia, was a matter that was inherently a matter to be given more weight than one or more of the primary considerations. Rather, there must be a reason, in the particular case, why the ‘other consideration’ is to be given greater weight than it would usually be given (being less weight than the primary considerations).

The relevant reasoning of the Tribunal

After setting out the relevant provisions of Direction 79, the Tribunal said at paras 54‑55:

In Suleiman v Minister for Immigration and Border Protection Colvin J, in applying the identical provision to Paragraph 8(3) in the precursor Direction 65 stated that while generally primary considerations should be given greater weight, the Direction:-

"... requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.

An evaluation of the factors occurs in the context of the circumstances of the individual case, and while the primary considerations may outweigh the other considerations in accordance with paragraph 8(3), other considerations can outweigh the primary consideration in the particular circumstances of the case."

(footnotes omitted)

There was no criticism of this aspect of the Tribunal’s reasons. Twice it refers to ‘paragraph 8(3)’ of Direction 79. It may be noted that para 8(3) deals with primary and other considerations and how they may weigh in favour of or against revocation of a visa cancellation. As we will see, the particular issue for the Tribunal was how to undertake the task of weighing those considerations being a matter addressed by para 8(4) and (5).

The Tribunal then undertook an extensive and careful review of the material concerning each of the considerations referred to in Direction 79 and reached certain conclusions as to the degree of weight to be given to each of them.

As to the primary considerations, after evaluating the nature and seriousness of the appellant’s conduct to date as part of addressing the primary consideration of protection of the Australian community, the Tribunal said ‘the nature and seriousness of [the appellant’s] conduct weighs heavily against revoking the cancellation of the visa’ (para 81). The Tribunal then evaluated in considerable detail the material concerned with the appellant’s risk of re-offending and concluded that he has a ‘medium likelihood of reoffending’ (para 160) and that together with its evaluation that the consequent harm if he re-offended would be serious concluded that the protection of the Australian community ‘weighs heavily in favour of not revoking the cancellation of [the appellant’s] visa’ (para 162). As to the best interests of minor children in Australia, the Tribunal again undertook a detailed review of the material. It concluded that ‘the interests of minor children weigh heavily in favour of revoking the cancellation of his visa’ (para 231). Then as to the expectations of the Australian community, the Tribunal found, after considering relevant authority, that the expectation of the Australian community was that his visa would be cancelled (para 234). Nevertheless it found that countervailing considerations were such that a higher level of tolerance would be afforded to him because he had been in Australia from a young age, has made a positive contribution to the Australian community and has minor children and all his immediate family in Australia (para 236). It concluded as to the expectations of the Australian community that it was a consideration that ‘weighs considerably in favour of not revoking the cancellation of his visa’ (para 237).

As to the other considerations, each was evaluated. Most were found not to apply or to be ‘neutral’. However, as to the strength, nature and duration of the appellant’s ties to Australia, the Tribunal concluded (at para 288) after a detailed review of the material as follows:-

"Having taken into account [the appellant’s] ties with his immediate family, his extended family, Ms B, Ms TT and other members of the community, the Tribunal is satisfied this factor weighs strongly in favour of revoking the cancellation of his visa. When this consideration is added to the significant weight in favour of revoking the cancellation due to the length of time he has lived in Australia, this consideration weighs strongly in favour of revoking the cancellation of his visa."

The Tribunal also found that the appellant would face minor impediments in re-establishing himself in New Zealand and that factor ‘should be given slight weight in favour of revoking the cancellation of his visa’ (para 304).

The Tribunal then undertook an overall evaluation that involved bringing together the relative views that it had reached. Under the heading ‘Conclusion’, it said (paras 305‑308):

1) Of the primary considerations, the protection of the Australian community weighs heavily in favour of not revoking the cancellation of [the appellant’s] visa, and the expectations of the Australian community weigh considerably in favour of not revoking the cancellation. The best interests of the children weigh heavily in favour of revoking the cancellations of the visa.

2) Of the other considerations, the strength nature and duration of [the appellant’s] ties weighs heavily in favour of revoking the cancellation of [the appellant’s] visa and the extent of impediments if removed weighs slightly in favour of revoking the cancellation of his visa.

3) Primary considerations should generally be given greater weight than the other considerations (cl.8(3)). In accordance with Suleiman, to give greater weight to one primary consideration, or to treat one or more of the other considerations as a primary consideration, it will be outside of the circumstances that generally apply. The Tribunal does not consider the circumstances of this case as outside those that generally apply.

4) The Tribunal considers the two primary considerations of protection of the community and the expectations of the community outweigh the best interests of the children, the strength, nature and duration of [the appellant’s] ties to Australia and any impediments he will face re-establishing himself in New Zealand. This means the decision not to revoke the mandatory cancellation of his visa is affirmed.

The structure of the four paragraphs that form the conclusion is significant. The first deals with the weight to be afforded each of the primary considerations, the second deals with the weight to be afforded each of the other considerations that were earlier found to be of significance in the case of the appellant. The third deals with the proper approach to the overall weighing process. The fourth records the way in which the Tribunal weighed the considerations.

The first and second paragraphs accurately record the outcome of the detailed relative evaluation of the weight to be afforded each of the considerations considered by the Tribunal to be relevant and of significance. There is no criticism of them.

The fourth paragraph states the Tribunal’s view that the combined effect of the two primary considerations that it had found favoured non-revocation outweighed the combined effect of the third primary consideration and the other considerations that favoured revocation. As such, it records an overall assessment by the Tribunal that brings together all relevant considerations. Significantly, it undertakes that overall evaluation by bringing together the relative assessments the Tribunal has already made in the detailed reasoning that has been described.

The appellant’s contention concerning the Tribunal’s conclusion

Despite the Tribunal recording its evaluation in the manner described above, the contention advanced by the appellant concerning the third paragraph of the Tribunal’s conclusion was that it involved the Tribunal adopting a view that in order for any one primary consideration to have greater weight than the other primary considerations the case had to be outside of the circumstances that generally apply. It followed from the appellant’s contention as to what was meant by the second sentence that the Tribunal was saying in the third paragraph that because the case was not outside the circumstances that generally apply greater weight could not be given to the primary consideration concerned with the best interests of children over the other primary considerations.

It was also submitted that the Tribunal expressed the same view about the other considerations prevailing over the primary considerations. In short, they could not prevail because the case was not outside of the circumstances that generally apply.

Issue:-

Did the Tribunal err in applying Suleiman?

Consideration:-

As has already been explained, before embarking upon its task of evaluating the various considerations listed in Direction 79 for relevance and weight, the Tribunal described what was required by Suleiman. It did so in terms that were not criticised. In particular, it described Suleiman (correctly) as dealing with the circumstances in which ‘other considerations’ can outweigh primary considerations. At that point, the Tribunal did not refer to the circumstances in which one primary consideration may outweigh other primary considerations, being a matter that was not addressed in Suleiman and which, in any event, is addressed expressly in para 8(5) of Direction 79 which says in terms that one or more primary considerations may outweigh other primary considerations.

Further, it is plain that at the contentious point in its conclusion the Tribunal is reasoning by reference to what was said in Suleiman. The decision in Suleiman, like the present appeal, concerned an application to review a decision concerning the power under s 501CA and a direction expressed, for present purposes, in similar terms to Direction 79. The Tribunal in its reasons had described the other considerations as ‘secondary’. In the key part of its reasons concerning the risk of harm to Mr Suleiman if he was returned to his country of nationality, the Tribunal had said that the primary considerations in Direction 65 (the predecessor to Direction 79) ‘are normally given greater weight than the other considerations and in light of the evidence before it, the Tribunal finds that the primary considerations here clearly outweigh this secondary consideration’: at [22]. In that context, it was said by Colvin J at [23]:

"The use by the Tribunal of the term ‘secondary’ indicates that the ‘other considerations’ are always of lesser importance. However, Direction 65 makes clear that an evaluation is required in each case as to the weight to be given to the ‘other considerations’ (including non‑refoulement obligations). It requires both primary and other considerations to be given ‘appropriate weight’. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains ‘generally’ they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are ‘normally’ given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both ‘primary’ and ‘other considerations’. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply."

The reasoning went on to conclude at [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.

The point made in Suleiman was that the other considerations referred to in the direction were not inherently secondary and were not secondary in all circumstances. Generally, the primary considerations were such that they were to be given greater weight. However, particular circumstances may pertain that may justify greater weight being given to one or more of the other considerations than one or more of the primary considerations. It may be noted that the reference in Suleiman to an inquiry as to whether the case is outside the circumstances that generally apply should not be read as requiring an inquiry as to whether there was something about the nature of the case of the person wanting to maintain their status as a visa holder that was unusual or uncommon or out of the ordinary. Rather, the question was whether there was some reason why the general circumstance where the primary considerations should be given greater weight than the other considerations should not apply when it came to weighing the various considerations that were relevant to the particular case.

Having regard to what was decided in Suleiman it would be strange for the Tribunal to be saying something about the relative weight as between primary considerations.

The contentious sentence in the Tribunal’s reasons

Turning then to the contentious words used by the Tribunal in the single contentious sentence in its reasons. It will be remembered that in Direction 79 there are three primary considerations and five other considerations.

The submission for the appellant is to the effect that the Tribunal’s words ‘give greater weight to one primary consideration’ meant ‘give greater weight to only one primary consideration over one or both of the other two primary considerations’. The submission for the Minister was to the effect that those words referred to the possibility of a particular primary consideration having greater weight over the other considerations. There is a further possibility (close to the submission for the Minister), namely that there is a slip in the wording and the Tribunal meant to refer to the possibility of one of the other considerations being given greater weight than any of the primary considerations.

The appellant’s construction should not be accepted

For the following reasons, the appellant’s submission concerning the meaning of the contentious sentence should not be accepted.

First, the Tribunal began its analysis at paras 54‑55 with a correct statement of what was determined by Suleiman being a statement that did not suggest that it was concerned with when one primary consideration may be given greater weight than another.

Second, the opening words to the third paragraph of the Tribunal’s conclusion focus attention upon the issue as to when primary considerations should be given greater weight over the other considerations.

Third, it was obvious that Suleiman was concerned only with the circumstances in which one of the other considerations (described as secondary by the Tribunal in that case) might be given greater weight than the primary considerations. It was also stated squarely in Direction 79 in para 8(5) that one or more primary considerations may outweigh other primary considerations. Therefore, neither Suleiman nor the direction indicated any uncertainty as to the correct approach to weighing primary considerations with each other.

Fourth, the Tribunal used the language ‘treat one or more of the other considerations as a primary consideration’ which was plainly taken from the last sentence of [23] of Suleiman. The other alternative referred to in that sentence was treating one or more of the other considerations as the consideration to be afforded the greatest weight. Given the introductory words to the contentious sentence (which refer to ‘accordance with Suleiman’) it appears tolerably clear that the Tribunal was paraphrasing the two conditions stated in the last sentence of [23]. If so, it is likely that the contentious words were stating the second of those conditions which concerned when one or more of the other considerations might be afforded greatest weight amongst all considerations. Divorced from an understanding of what was said in Suleiman it may be argued that the appellant’s construction of the reasons should be accepted. However, read in the context of what was said in Suleiman, there is much to be said for the Minister’s alternative or the likelihood that something miscarried.

Fifth, and most significantly, as has been explained the weighing process that was actually undertaken by the Tribunal in the following paragraph did not give effect to the construction for which the appellant contends. If indeed the Tribunal had meant to state what was argued for the appellant then it would make no sense for the Tribunal to go on and weigh the various considerations in the manner that it did in the fourth paragraph.

Another way of expressing the above analysis is to say that the appellant’s submission approaches the Tribunal’s reasons with an eye attuned to finding error. Imperfections of expression in a single sentence in what were otherwise comprehensive and detailed reasons evaluating the relative weight to be afforded all of the relevant considerations followed by a conclusion expressed in the terms of the fourth paragraph of the conclusion shows that the Tribunal has performed its function and exercised its powers by complying with Direction 79.

Conclusion:-

It follows that no error of the kind relied upon by the appellant has been demonstrated and for that reason the notice of contention by the Minister must be upheld. The appeal depended upon the contrary conclusion by the primary judge being sustained. As that premise for the appeal has not been upheld, the appeal must be dismissed and it is not necessary to consider the issues raised in relation to materiality.

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