Did delegate fail to comply with Direction No 90 made under Section 499(1) Migration Act, 1958 (Cth)?

Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2 (7 February 2024)

Intro:-

This matter, brought in the original jurisdiction of the Court, involves the construction, validity, and operation of parts of Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA ("Direction 90"), which is a direction made under s 499(1) of the Migration Act 1958 (Cth) ("the Act").

Facts:-

The plaintiff was born in Lebanon and holds a travel document for Palestinian refugees issued by the Republic of Lebanon. The plaintiff came to Australia on a Student (Higher Education Sector) (Subclass 573) visa in 2010 when he was 21 years old. He was granted a Partner (Subclass 801) visa in 2015 ("Partner visa"). Between 2010 and 2022 the plaintiff was convicted of various offences, including offences of driving while disqualified and offences of domestic violence.

On 28 September 2022, a delegate of the Minister administering the Act decided to refuse to grant the plaintiff a Return visa. The delegate concluded that the plaintiff did not pass the "character test" and that the "considerations favouring non‑refusal [of the visa application] are outweighed by the considerations favouring refusal". The plaintiff contends that in making this decision the delegate erred in law on several grounds, each relating to Direction 90.

The Act and Direction 90

Section 501(1) of the Act provides that "[t]he Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test". "A decision under s 501(1) involves two steps, being a consideration of whether the person has satisfied the decision‑maker that the person passes the character test, and if not, the exercise of the discretion whether to exercise the power to refuse the visa."[1] The plaintiff does not dispute that he does not pass the "character test" as, in accordance with s 501(6)(a), he has "a substantial criminal record" as defined in s 501(7) of the Act.

Direction 90 is a direction given by the Minister under s 499(1) of the Act. Section 499(1) provides that the Minister may give written directions to a person or body having functions or powers under the Act if the directions are about the performance of those functions or the exercise of those powers. Section 499(2) provides that the Minister is not empowered to give directions that would be inconsistent with the Act or the regulations. Section 499(2A) provides that a delegate of the Minister must comply with a direction (such as Direction 90) in deciding, relevantly, whether to refuse to grant a visa under s 501(1) of the Act.

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8. Primary considerations

In making a decision under section 501(1), 501(2) or 501CA(4), the following are primary considerations:

(1) protection of the Australian community from criminal or other serious conduct;

(2) whether the conduct engaged in constituted family violence;

(3) the best interests of minor children in Australia;

(4) expectations of the Australian community."

Issues:-

Ground 1 - Whether delegate failed to comply with para 8.3(1) of Direction 90 or failed to inquire about status of minor child in circumstances where it was legally unreasonable not to do so?

Ground 2 and 3 - Whether para 8.2 of Direction 90 permitted delegate to give weight to family violence considerations in circumstances where delegate had given weight to considerations under other paragraphs?

Ground 4 - Whether delegate misapplied para 8.4 of Direction 90.?

Consideration:-

Ground 1

The information available to the delegate

In the information initially submitted in support of the plaintiff's visa application, there is no mention of MC. In contrast, there is reasonably detailed information about two children who are brothers of MC, one also being a minor child (under 18 years of age) and the other not being a minor child (as he was 22 years old at the time). The information initially submitted comprised statements in support, including one from the plaintiff, one from the plaintiff's partner (who provided information about her sister's two sons – the brothers of MC – and the three children of another sister, but did not mention MC), and one from the sister of the plaintiff's partner and the mother of the brothers of MC (who provided information about the plaintiff's relationship with her two sons but did not mention MC). For example, the plaintiff's statement said the plaintiff had a "very strong bonded family‑like relationship" with his partner's sister, who was a single mother to a 7‑year‑old and a 22‑year‑old, identified as the two sons of his partner's sister. The statement said the plaintiff had built a "very strong connection and relationship" with his partner's sister, "supporting her with the management and upbringing of her children and assuming responsibility over her children". MC is not mentioned in this statement.

The plaintiff subsequently submitted a "Personal Circumstances" form. That form had a section saying, "List below all your minor children ... Provide evidence to support your claims including birth certificates, if available." The plaintiff's response in this part of the form identified the two sons of the sister of the plaintiff's partner (as noted, only one of whom is a minor child under 18 years of age). It also identified, for the first (and only) time, MC as a child of his partner's sister, with whom the plaintiff stated he had "daily" contact. In response to another question asking for a description of the plaintiff's relationship with "each child/ren above, including the role you play in his/her life", the plaintiff referred to attached documents "regarding my guardianship to children and impacts of my absence". None of the documents referred to MC. Another section of the form, asking the plaintiff to list all other minor children in his life in Australia, was left blank.

Was there a duty to inquire?

In the circumstances described, it was not legally unreasonable for the delegate to decide to refuse the visa application without making an inquiry about MC. The plaintiff had multiple opportunities to provide the Department with information about all minor children who he contended would be affected by the decision. None of the circumstances which were identified on the plaintiff's behalf as salient to the alleged legal unreasonableness of the delegate's decision alter the basic fact that no one suggested any possible effect of the decision on the best interests of MC.

The delegate was entitled to decide the visa application without making an inquiry about MC. The delegate did not have a duty, either generally or under para 8.3(1) of Direction 90, to determine if the decision would or would not be in the best interests of MC as a minor child given that the information provided by and on behalf of the plaintiff did not establish that MC was in fact a minor child whose interests might be affected in any way by the decision.

Ground 2

The plaintiff contends that: (1) para 8.2 of Direction 90 did not permit the delegate to give weight to family violence under para 8.2 in circumstances where the delegate had already given weight to the same family violence under paras 8.1 and/or 8.4 of Direction 90; (2) if Direction 90 permits this giving of "repetitious weight" to family violence, para 8.2 is invalid as its operation is irrational, illogical, and legally unreasonable, or as an illegitimate fetter on the discretion of the decision‑maker which is not authorised by s 499(1) of the Act; alternatively, para 8.2 of Direction 90 does not permit family violence to be given weight in the consideration of whether a visa should be granted for reasons other than the protection of the Australian community or the expectations of the Australian community, as para 8.2 would then operate for illegitimate punitive or irrelevant purposes; or (4) if para 8.2 of Direction 90 permits family violence to be given weight in the consideration of whether a visa should be granted for reasons other than the protection of the Australian community or the expectations of the Australian community, para 8.2 is invalid (by which the plaintiff meant ultra vires) as it purports to authorise the decision‑maker to impose extra‑curial punishment on an offender for their offending (which would be beyond the scope of the Act) or to act on an irrelevant basis.

"Repetitious weighing" or "double counting"?

Under Direction 90, a delegate is entitled to give such weight to relevant acts of family violence as the delegate sees fit by reference to paras 8.1, 8.2 and 8.4 (as well as, for that matter, paras 5.2(2); 8.3(1), 8.3(4)(g) and (h); and 9(1)(c) and 9.3, if relevant). In so doing, the fact that the acts of family violence considered under each of the paragraphs are the same does not mean that the delegate's decision is irrational, illogical, or legally unreasonable because the delegate has engaged in "repetitious weighing" or "double counting". These shorthand phrases are apt to mislead. The same facts may be relevant to multiple different considerations. In the case of a matter made a mandatory consideration by a direction under s 499(1) of the Act, the matter to be considered may be described in a multiplicity of ways, such as by reference to a particular context, a particular purpose, or a particular assessment. Weighing the relevance or significance of the same facts by reference to those different considerations does not involve "repetitious weighing" or "double counting" in any illegitimate sense. It is doing no more than the direction, in terms, requires, and the direction is not inconsistent with the Act.

In the present case, it is apparent from the delegate's reasons that the delegate weighed the same circumstances in the different contexts and for the different purposes Direction 90 required – the protection of the Australian community (under para 8.1), the identified concern of the Australian Government of family violence (under para 8.2), and the expectations of the Australian community (under para 8.4). There was no irrational, illogical, or legally unreasonable weighing of the same factor in the same context and for the same purpose twice.

Although the resolution of each case in which an argument to this effect is put will depend on the terms of the applicable direction and the specific reasons of the delegate, care would also be required before an inference was drawn that a decision‑maker had given weight to the same factor in the same context and for the same purpose twice under Direction 90 with the result that the decision is irrational, illogical, or legally unreasonable. Considerations which overlap (such as the consideration of the same acts of family violence in the different contexts of the protection of the Australian community, the views or policies of the Australian Government, and the expectations of the Australian community), by definition, are not wholly coextensive with each other. Weighing the relevance of the same acts of family violence in each different (albeit overlapping) context is not "repetitious weighing" or "double counting", and it would be wrong to conceptualise such a process of reasoning as irrational, illogical, or legally unreasonable.

Ground 3

The plaintiff contends that the delegate misapplied para 8.4 of Direction 90 in that, when weighing the expectations of the Australian community, the delegate was required to consider those expectations in light of the plaintiff's personal circumstances and did not do so.

Delegate's reasons

The delegate noted that the plaintiff had engaged in family violence which, in accordance with para 8.4(2)(a) of Direction 90, raised serious character concerns about the plaintiff. The delegate referred to the substance of para 8.4(2), which says that the Australian community expects that the Australian Government can and should refuse entry to non‑citizens, or cancel their visas, if they raise serious character concerns. The delegate also referred to the substance of para 8.4(3), which says that the expectations of the Australian community apply regardless of whether the non‑citizen poses a measurable risk of causing physical harm to the Australian community. The delegate "proceeded on the basis that the Australian community's general expectations about non‑citizens, as articulated in the Direction, apply in this case". The delegate gave "this consideration significant weight in favour of refusal of [the plaintiff's] visa application".

Failure to consider?

If the delegate was required to weigh the plaintiff's personal circumstances in deciding what ultimate weight to give to the expectations of the Australian community, no inference can be drawn that the delegate did not do so

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Further, para 8.4 does not stipulate that, in assessing what weight is to be given to the expectations of the Australian community, the decision‑maker must attribute to that hypothesised community knowledge of the personal circumstances of the applicant for the visa as known to the delegate. To the contrary, para 8.4(4) stipulates that the decision‑maker is to proceed on the basis of the Australian Government's views as set out in para 8.4 "without independently assessing the community's expectations in the particular case".

Conclusions and orders:-

The grounds of the plaintiff's application are not sustainable.