ACH15 v MIBP
[2015] FCCA 1250
•14 May 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ACH15 v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 1250 |
| Catchwords: ADMINISTRATIVE LAW – Review of decision of Migration Review Tribunal – written direction under s.499 of Migration Act 1958 – Direction No.63 – whether the Tribunal properly understood and applied Direction – construction and interpretation of Direction – “rigorously” – Tribunal misunderstood Direction – decision affected by jurisdictional error – writs issued. |
| Legislation: Migration Act 1958 (Cth), ss.5AA, 116, 499 Crimes Act 1900 (NSW) |
| Uelese v Minister for Immigration & Border Protection [2015] HCA 15 Tuitaalili v Minister for Immigration & Citizenship (2012) 126 ALD 48 Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 87 ALJR 98 Independent Commission Against Corruption v Cunneen (2015) 89 ALJR 475 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 |
| Applicant: | ACH15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 517 of 2015 |
| Judgment of: | Judge Smith |
| Hearing date: | 27 April 2015 |
| Date of Last Submission: | 27 April 2015 |
| Delivered at: | Sydney |
| Delivered on: | 14 May 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr D. Hughes |
| Solicitors for the Applicant: | Legal Aid NSW |
| Solicitors for the Respondents: | Mr A. Markus of Australian Government Solicitor |
ORDERS
A writ of certiorari issue directed to the Migration Review Tribunal (“Tribunal”) quashing the decision of the Tribunal dated 28 January 2015.
A writ of mandamus issue directed to the Tribunal requiring it to determine the application made to it for review of the decision of a delegate of the first respondent dated 14 January 2015 in accordance with the law.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 517 of 2015
| ACH15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(As Corrected)
The applicant is a citizen of Iraq who arrived in Australia in March 2013 by boat without a visa and was thus an unauthorised maritime arrival within the meaning of s.5AA of the Migration Act 1958 (“Act”). He was a minor at that time and was released into community detention in July 2013. Upon turning 18, the applicant was granted a Bridging E (subclass 050) visa (“Bridging visa”) as well as a Temporary Safe Haven (subclass 449) visa, the latter of which was valid until 4 March 2014.
On 13 January 2015 the applicant was charged with a number of offences including two offences under the Crimes Act 1900 (NSW) and taken into police custody. On the following day a delegate of the first respondent (“Minister”) made a decision to cancel the applicant’s Bridging visa. The applicant applied to the Tribunal for review of that decision. The Tribunal made a decision on 28 January 2015 to affirm the delegate’s decision.
In making its decision, the Tribunal was obliged to comply with any written direction given by the Minister under s.499 of the Act. The relevant direction was entitled “Direction No.63 … Bridging E visas – Cancellation under section 116(1)(g) – Regulation 2.43(1)(p) or (q)” (“Direction”). The first issue in the proceedings is whether the Tribunal properly understood and applied the Direction. The second issue is, if the Tribunal did properly understand and apply the Direction, whether that Direction was ultra vires as imposing an unlawful fetter upon the Tribunal’s discretion.
Factual background
Given the limited scope of the issues in these proceedings it is necessary to set out only a broad outline of the factual background. The applicant’s relevant migration history is set out at [1] above.
On 12 January 2015 a friend of the applicant’s called him to say that Iraq had won a soccer match and that people were gathering in Fairfield to celebrate. The applicant decided to go to Fairfield even though he did not want to celebrate Iraq’s victory. He saw people doing burnouts in a car park and proceeded also to do a burnout by accelerating his car while applying the handbrake and so causing the car to spin around in a complete circle. This manoeuvre is also called a “doughnut” by reason of the toroidal shape of the tyre marks made as a result of engaging in the manoeuvre.
There were people standing on the footpath around the car park and, on his third “doughnut”, the applicant’s car struck a woman pedestrian and injured her. The applicant got out of the car and ran to the injured woman; however, he grew nervous as people around him were screaming and yelling at him and so returned to his car and left without giving the woman his details. The following day, he presented himself to Fairfield Police Station and told the police what had occurred. He was charged with a number of offences including dangerous driving occasioning grievous bodily harm and drive in a manner dangerous and held in police custody.
The next day the applicant was interviewed very briefly by a delegate of the respondent who had indicated to him that he might consider cancelling his Bridging visa. The applicant agreed at that interview that the grounds for cancellation did exist but asked to be forgiven and said that it would not occur again. The delegate decided to cancel the applicant’s Bridging visa at the conclusion of the interview.
The applicant applied to the Tribunal for review of the delegate’s decision and was assisted by a migration agent from the Refugee Advice and Casework Service. In submissions dated 27 January 2015 the migration agent addressed the primary considerations in the Direction including the Government’s view that the prescribed grounds for cancellation and sub-regs.2.43(1)(p) and (q) of the Migration Regulations 1994 (“Regulations”) should be applied rigorously. In respect of that consideration the agent addressed the nature of the charges noting that the applicant acknowledged the seriousness of those charges and that he shared a deep remorse for his actions. She further addressed the applicant’s state of mind as well as his response to the incident before turning to other considerations relevant to the exercise of the discretion to cancel.
The applicant gave evidence at a hearing before the Tribunal on 27 January 2015 and also provided it with a written statement. The Tribunal made a decision on 28 January 2015 to affirm the delegate’s decision.
The relevant findings and reasons of the Tribunal were as follows:
[23]I accept that [the applicant] is not a flight risk and that, given his otherwise clean record, he is not a risk to the community. He is genuinely sorry for what he has done. The factors considered by a court in deciding whether to grant bail are, however, different to those presently under consideration. Nevertheless, I have taken the representative’s submissions into account and I appreciate that, while (the applicant) fled the scene, he voluntarily handed himself into the police some hours later.
[24][The applicant] is a young man who came to Australia without family support. He states he has an “aunty” (who appears to be his mother’s step-sister) in Australia but they are not close. I accept that he may found (sic) adjusting to life away from family in a strange country difficult. I am also mindful that he has become frustrated as he cannot study or work and is at present prevented from applying for a substantive visa. He is also worried about his family in Iraq. No doubt these matters contributed to his recklessness on the night in question. I also accept that, due to his young age, he may be more vulnerable than others in his situation.
[25]The Tribunal is mindful that [the applicant], understandably, would prefer to remain in the community and not be in immigration detention. The Tribunal is aware that it may take some time to resolve his substantive visa status. The Tribunal is also mindful that, if the applicant’s visa is cancelled, he will not be able to apply for a further bridging visa (Schedule 1 Item 1305). He will therefore remain in detention until his status in Australia is resolved which could take some time. As noted above, [the applicant] appears to be depressed and anxious and he became visibly upset at the hearing. His ongoing detention may well have an impact on his wellbeing.
[26]There is no indication before the Tribunal, however, that [the applicant] will be prevented from applying for a visa in perpetuity or that, if found to be owed protection, he will nevertheless continue to be held in detention.
[27]However, in the circumstances of this case, bearing in mind that the primary consideration that the ground of cancellation in r.2.43(1)(p) should be applied rigorously, the Tribunal concludes that the visa should be cancelled.
The statutory scheme
The power to cancel a bridging visa is found in s.116 of the Act. That section relevantly provides:
116 Power to cancel
(1)Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:
…
(g)a prescribed ground for cancelling a visa applies to the holder.
Regulation 2.43 of the Regulations prescribes further grounds for cancelling a visa for the purposes of sub-s.116(1)(g). That regulation relevantly provides:
2.43 Grounds for cancellation of visa (Act, s 116)
(1)For the purposes of paragraph 116(1)(g) of the Act (which deals with circumstances in which the Minister may cancel a visa), the grounds prescribed are:
…
(p)in the case of the holder of a Subclass 050 (Bridging (General)) visa or a Subclass 051 (Bridging (Protection Visa Applicant)) visa – that the Minister is satisfied that the holder:
(i) has been convicted of an offence against a law of the Commonwealth, State, Territory or another country; or
(ii) has been charged with an offence against a law of the Commonwealth, State and Territory or another country,
…
(q)in the case of the holder of a Subclass 050 (Bridging (General)) visa or a Subclass 051 (Bridging (Protection Visa Applicant)) visa--that:
(i) an agency responsible for the regulation of law enforcement or security in Australia has advised the Minister that the holder is under investigation by that agency; and
(ii) the head of that agency has advised the Minister that the holder should not hold a Subclass 050 (Bridging (General)) visa or a Subclass 051 (Bridging (Protection Visa Applicant)) visa; …
It may be noted that, while the Tribunal incorrectly relied on sub-reg.2.43(1)(p)(i), the applicant accepted that the facts found by the Tribunal enlivened the power to cancel pursuant to sub-reg.2.43(1)(p)(ii).
Section 499 of the Act relevantly provides:
499 Minister may give directions
(1)The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a) the performance of those functions; or
(b) the exercise of those powers.
(1A)For example, a direction under subsection (1) could require a person or body to exercise the power under section 501 instead of the power under section 200 (as it applies because of section 201) in circumstances where both powers apply.
(2)Subsection (1) does not empower the Minister to give directions that would be inconsistent with this Act or the regulations.
(2A)A person or body must comply with a direction under subsection (1).
The Minister accepted that, in light of this provision, the Tribunal was obliged to comply with any relevant direction made under s.499 and that a failure to do so would constitute jurisdictional error: see also Uelese v Minister for Immigration & Border Protection [2015] HCA 15 at [19][1].
[1] Although it is not relevant to these proceedings, it appears difficult to reconcile the decision in Tuitaalili v Minister for Immigration & Citizenship (2012) 126 ALD 48 with the decision in Uelese, particularly at [61]-[64].
As already noted the Direction was made under s.499 of the Act. Given the centrality of the terms of the Direction to the issues in these proceedings and the relative brevity of it, it is convenient to set out most of the Direction:
…
2 Commencement
This Direction commences on the 12th day of September 2014
3 Contents
This Direction comprises a number of Parts:
Part oneContains 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 a non-citizen’s visa under either:
·section 116(1)(g) - relying on the prescribed ground in regulation 2.4(1)(p); or
·section 116(1)(g) - relying on the prescribed ground in regulation 2.4(1)(q)
Part twoIdentifies considerations relevant to Bridging E visa holders in determining whether to exercise the discretion to cancel a non-citizen’s visa under 116(1)(g) and regulation 2.43(1)(p) or (q).
4 Part one
4.1 Objectives
(1)The Object of the Migration Act 1958 (the Act) is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.
(2)Under section 116(1)(g) of the Act, a decision-maker may cancel a visa if they are satisfied that a prescribed ground for cancelling a visa applies to the visa holder. The prescribed grounds are set out in regulation 2.43 of the Migration Regulations 1994. For the purpose of this Direction, only regulation 2.43(1)(p) and (q) are relevant.
(3)The purpose of this Direction is to guide decision-makers who are delegated to perform functions or exercise powers under the Act to cancel the visa of a non-citizen under section 116(1)(g) and regulation 2.43(1)(p) or (q). Under section 499(2A) of the Act such decision-makers must comply with a Direction made under section 499. This Direction also applies to Tribunal members reviewing visa cancellation decisionsis made under section 116(1)(g) and regulation 2.43(1)(p) or (q).
4.2 General Guidance
(1)The Government is committed to ensuring that non-citizens given the privilege of living in the Australian community on Bridging E visas behave in a manner that is in accordance with Australian law is and which respects Australia’s community values and standards of democracy, multiculturalism, respect, inclusion, cohesion, tolerance, and cooperation. The principles below are of critical importance in furthering that objective.
(2)The Principles in this Direction provide a framework within which decision-makers should approach their task of deciding whether to cancel a non-citizen’s Bridging E visa under section 116(1)(g) because a prescribed ground at regulation 2.43(1)(p) or (q) applies to the holder. The relevant factors that must be considered in making such decisions are identified in Part two of this Direction.
4.3 Principles
(1)Mandatory detention applies to any non-citizen who arrives and/or remains in Australia and who does not hold a visa that is in effect.
(2)All non-citizens residing in the community are expected to abide by the law. This is particularly relevant where Minister for Immigration and Border Protection has used his personal non-delegable power to grant a non-citizen in immigration detention a visa in the public interest.
(3)The Australian Government has a low tolerance for criminal behaviour by non-citizens who are in the Australian community on a temporary basis, and do not hold a substantive visa. In the case of a non-citizen who, but for the Minister granting them a visa in the public interest, would be subject to mandatory detention, it is a privilege and not a right to be allowed to live in the community while their immigration status is being resolved.
(4)In order to effectively protect the Australian community and to maintain integrity and public confidence in the migration system, the Government has introduced measures that support the education of Bridging E visa holders about community expectations and acceptable behaviour. These measures encourage compliance with reasonable standards of behaviour and support the taking of compliance action, including consideration of visa cancellation, where Bridging E visa holders do not abide by the law.
(5)Bridging visa holders who have been found guilty of engaging in criminal behaviour should expect to be denied the privilege of continuing to hold a Bridging E visa while they await the resolution of their immigration status. Similarly, where Bridging E visa holders are charged with the commission of a criminal offence or are otherwise suspected of engaging in criminal behaviour or being of security concern, there is an expectation that such Bridging E visas ought to be cancelled while criminal justice processes or investigations are ongoing.
(6)The person’s individual circumstances, including the seriousness of their actual or alleged behaviour, and any mitigating circumstances are considerations in the context of determining whether a Bridging E visa should be cancelled.
Part two – Section 116(1)(g) and regulation 2.43(1)(p)
5. Prescribed grounds under regulation 2.43(1)(p)
(1)Where more than one ground for cancellation under section 116(1) is relevant to the facts of the case, the decision-maker should consider cancellation under the most appropriate ground based on the evidence before the decision-maker. For instance, where there may appear to be non-compliance with condition 8564 because a visa holder has been charged with an offence against a State or Territory law, the ground at section 116(1)(g) and regulation 2.43(1)(p) would generally be the more appropriate cancellation ground, rather than the ground that section 116(1)(b), namely, non-compliance with a condition of the visa.
(2)The grounds for cancellation at regulation 2.43(1)(p)(i) and (ii) are enlivened when a visa holder is convicted of, or charged with any offence, irrespective of the seriousness of the offence. However, the seriousness of the offence may be considered as a secondary consideration in the exercise of discretion under section 116(1).
(3)Where a Bridging E visa holder has been charged with an offence(s), but the charge(s) is/are dismissed, cancellation is not appropriate. Similarly, where a Bridging E visa holder has been charged with an offence but has been found by a court to be not guilty or the charge is otherwise dismissed, cancellation is also not appropriate.
5.1 How to exercise the discretion
(1)Informed by the Principles in paragraph 4.3, the decision-maker must take into account the primary and secondary considerations in Part two of this Direction, where relevant, in order to determine whether a Bridging E visa holder should have their visa cancelled.
(2)Both primary and secondary considerations may weigh in favour of, or against, cancellation of a Bridging E visa.
(3)The primary considerations should generally be given greater weight than any secondary considerations.
(4)One primary consideration may outweigh the other primary consideration.
(5)In applying the considerations (both primary and secondary), information and evidence from independent and authoritative sources should be generally be given greater weight and information from other sources.
6. Primary considerations
(1)In deciding whether to cancel a non-citizen’s Bridging E visa under the prescribed grounds in regulation 2.43(1)(p) and (q), the following are primary considerations:
a.the Government’s view that the prescribed grounds for cancellation at regulation 2.43(1)(p) and (q) should be applied rigorously, in that every instance of non-compliance against these regulations should be considered for cancellation, in accordance with the discretionary cancellation framework; and
b.the best interests of children under the age of 18 in Australia who would be affected by the cancellation.
6.1 The Government’s view that the prescribed grounds for cancellation at regulation 2.43(1)(p) and (q) should be applied rigorously
(1)In weighing the Government’s view is that the prescribed grounds for cancellation at regulation 2.43(1)(p) and (q) should be applied rigorously, decision-makers should have regard to the principle that the Australian Government has a low tolerance for criminal behaviour, of any nature, by non-citizens who are in the Australian community on a temporary basis, and who do not hold a substantive visa. This is particularly the case of non-citizens who, but for the Minister granting them a visa in the public interest, would be subject to mandatory detention while their immigration status is being resolved.
6.2 The best interests of any children under the age of 18 in Australia who would be affected by the cancellation.
(2)Decision-makers must make a determination about whether cancellation is, or is not, in the best interests of any children under 18, who would be affected by the decision.
a.in considering the best interests of the child, decision-makers should have regard to the fact that the cancellation of a Bridging E visa under the prescribed grounds in regulation 2.43(1)(p) and (q) does not necessarily represent final resolution of a person’s immigration status in Australia.
7. Secondary considerations
(1)In deciding whether to cancel a non-citizen’s Bridging E visa, the following secondary considerations must be taken into account:
a.the impact of a decision to cancel the visa on the family unit (such as whether the cancellation will result in the temporary separation of a family unit);
b.the degree of hardship that may be experienced by the visa holder if their visa is cancelled;
c.the circumstances in which the ground the cancellation arose (such as whether there are mitigating factors that may be relevant, as well as the seriousness of the offence, the reason for the person being the subject of a notice (however described) issued by Interpol, or the reason for the person being under investigation by an agency responsible for the regulation of law enforcement);
d.the possible consequences of cancellation, including but not limited to, whether cancellation could result in indefinite detention, or removal in breach of Australia’s of non-refoulement obligations, noting that a decision to cancel a Bridging E visa does not necessarily represent the final resolution of a person’s immigration status;
e.delegates may also consider any other matter they consider relevant.
Consideration
Ground 1
The applicant’s first ground is a short point. It is that the Tribunal understood the Direction, and in particular the first primary consideration set out in sub-cl.6.1(1) of the Direction to mean that cancellation must, almost always follow the enlivenment of the discretion. It was argued by the applicant that that understanding was incorrect because sub-cl.6.1(1) of the Direction only relates to consideration of whether to consider cancellation of the visa. In my view, although there are contextual considerations which strain against the applicant’s argument, the clear words of the Direction support that argument.
The process of construing the Direction is no different to that to be applied in respect of any other written document. In the statutory context, that has been described by the High Court as follows:
“This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the [statutory] text”. So must the task of statutory construction end. The statutory text must be considered in its context. That context includes legislative history and extrinsic materials. Understanding context has utility if, and in so far as, it assists in fixing the meaning of the statutory text. … (reference omitted)
(Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 87 ALJR 98 at 107 [39])
More recently[2], the majority of the High Court emphasised what was said in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381-382 [69] - [70] per McHugh, Gummow, Kirby and Hayne JJ:
The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined 'by reference to the language of the instrument viewed as a whole'. ...
A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions.
[2] Independent Commission Against Corruption v Cunneen (2015) 89 ALJR 475 at [31] also referring to Certain Lloyd's Underwriters v Cross (2012) 248 CLR 378 at 389 [24] per French CJ and Hayne J; and in Plaintiff S4/2014 v Minister for Immigration and Border Protection (2014) 88 ALJR 847 at 855 [42] per French CJ, Hayne, Crennan, Kiefel and Keane JJ
The critical words in sub-cl.6.1(1) are: “weighing the Government’s view that the prescribed grounds for cancellation at sub-regulation 2.43(1)(p) and (q) should be applied rigorously”. Those words, and in particular the reference to “the Government’s view”, are taken directly from the immediately preceding sub-cl.6(1)(a):
The Government’s view that the prescribed grounds for cancellation at regulation 2.43(1)(p) and (q) should be applied rigorously, in that every instance of non-compliance against these regulations should be considered for cancellation in accordance with the discretionary cancellation framework; …
Not only are the words in sub-cl.6.1(1) taken directly from sub-cl.6(1)(a), but they are a direct reference to that subclause. For that reason, it is obvious that the latter clause is intended to expand upon rather than to be in addition to the former clause. That conclusion is fortified by the way in which the interests of the child referred to in sub-cl.6(1)(b) is further explained in sub-cl.6.2(2).
The question then, is what sub-cl.6(1)(a) means. The word “rigorously” is somewhat ambiguous. It could mean rigidly or unforgivingly or, perhaps more likely, in an extremely detailed and thorough manner, accurately or exactly: Oxford English Dictionary (online version). The latter of these meanings is more likely given that it is hardly surprising that the government would consider that the cancellation of a visa for a breach or potential breach of the law be carried out in a thorough manner. However, there is further guidance as to the meaning of the clause in the following phrase commencing with the words “in that”. Those words are used in a definitional sense so that what follows is intended to explain the meaning of the government’s view. That meaning, then, is that “every instance of non-compliance against these regulations should be considered for cancellation, in accordance with the discretionary cancellation framework.” In other words, as the applicant submits, every time a person on a bridging visa is charged with an offence the Direction requires that a decision-maker consider whether to consider cancelling the visa.
In my view, that is the only sensible construction of sub-cl.6(1)(a).
I will return to some contextual matters, but first it is necessary to examine how the meaning of sub-cl.6(1)(a) affects 6.1(1). It may be recalled that the primary consideration is in fact that found in sub-cl.6(1)(a) and that sub-cl.6.1(1) is only intended to elaborate upon that clause. Some difficulty, however, is created by the opening words of sub-cl.6.1(1): “In weighing…”. Ordinarily, a weighing process is engaged in once the precondition to a discretionary power has been satisfied. In other words, the weighing process is part of the consideration of whether to cancel or not to cancel rather than whether to consider whether to cancel at all. The resolution of this apparent conflict appears from the context of cl.6 including earlier parts of the Direction and the empowering provision in the Act.
Section 499 of the Act enables the Minister to give written directions about the performance of functions or the exercise of powers. An example is given in sub-s.499(1A): “for example, a direction under subsection (1) could require a person or body to exercise the power under section 501 instead of the power under s.200 (as it applies because of section 201) in circumstances where both powers apply”.
Clause 3 of the Direction indicates that the Direction is divided into two parts. The second part is said to identify “considerations relevant to Bridging E visa holders in determining whether to exercise the discretion to cancel a non-citizens visa under 116(1)(g) and subregulation 2.43(1)(p) or (q).” Clause 5 is the first clause in pt.2. That clause is headed “Prescribed grounds under regulation 2.43(1)(p)”. The first subclause is addressed to the issue of which provision in s.116 ought to be relied upon as the basis upon which the cancellation power is enlivened. As such, it appears to reflect the example referred to in sub-s.499(1A). That much is consistent with cl.5 being directed, not at the exercise of the discretion once it arises, but at anterior questions. That is confirmed by the second subclause in cl.5 which indicates that grounds for cancellation are enlivened when a visa holder is convicted of or charged with any offence irrespective of the seriousness of the offence and then notes that the seriousness of the offence may be considered as a secondary consideration in the exercise of discretion.
Subclause 5(3) also appears to be addressed to a question anterior to the actual exercise of discretion under s.116. There are three reasons for that conclusion: first, the other subclauses in cl.5 are both addressed to that question; secondly sub-cl.5(3) states that cancellation is not appropriate when charges have been dismissed either by a finding of not guilty or otherwise. While it may be questionable for the Minister to issue a direction in such absolute terms, because the subclause is addressed to the circumstances in which the power is enlivened, there is a closer logical connection between it and consideration of whether to engage upon the exercise of discretionary power or not than there is with the process of exercising the discretion. Thirdly, cl.5.1 which follows immediately after cl.5, is expressly directed at the manner of exercise of discretion.
These aspects of the legislation and the Direction support the contention that the rigour referred to in cl.6 is addressed solely to the question of whether to enter into consideration of cancelling the visa.
However, cl.5.1 places some contextual difficulties in the path of the applicant’s construction. First, the heading of cl.5.1 is “How to exercise the discretion”. This supports the view, noted at [25], that clause 5.1 is directed at the manner of exercise of the discretion. Secondly, sub-cl.5.1(1) directs the decision-maker to take into account the considerations in part to “in order to determine whether a Bridging E visa holder should have their visa cancelled”. That subclause creates a potential conflict with the ordinary meaning of the words in sub-cl.6(1)(a): sub-cl.6(1)(a) concerns the first part of the process and yet cl.5.1 is directing the decision-maker to take that into account in the second part of the process.
I do not think that the conflict is intractable. The tension only really arises if the two parts of the process are seen as logically distinct. However, although the two parts can be informed by different considerations, there is nothing to say that the considerations relevant to one part cannot also inform the decision to be made in the second part. Thus, paraphrasing sub-cl.6(1)(a), the Government’s view that the exercise of discretion should be considered every time that a visa holder is charged with an offence can be taken into account when exercising the discretion. That is because that view is based, like the cancellation power itself, on the national interest objectives of the Act itself: see sub-cls.4.1(1), 4.3(3) and 6.1(1). For that reason, while the reference to “weighing” in clause 6.1 and the purpose of cl.5.1 appear at first to undermine the applicant’s argument, I consider that they do not.
The Tribunal did not understand and apply the Direction according to its proper meaning. Rather than understanding that the government’s view that the relevant grounds should be applied rigorously in the sense described above, it understood that view to be that the exercise to cancel should be exercised rigorously, that is, strictly. Thus, in spite of having found many mitigating factors in favour of the applicant, it cancelled the visa simply because it thought it was directed to do so. That misunderstanding by the Tribunal caused it to fail to properly review the decision of the delegate and so it constructively failed to exercise its jurisdiction. Alternatively, it failed to consider a relevant consideration being a direction made under s.499 of the Act. Either way, its decision was affected by jurisdictional error.
Ground 2
Although it is unnecessary to do so, I consider that the applicant’s second ground would fail. That ground is that, if the Tribunal correctly understood the Direction, the Direction was invalid because it constituted an unlawful fetter on the Tribunal’s discretion and so was beyond the power granted by s.499 of the Act.
The critical step in the applicant’s argument is that the word “rigorously” meant that clauses 6 and 6.1 were virtually a prescription in favour of cancellation. The difficulty with that argument is that it is based, not on the text of the Direction, but on the way in which the Tribunal applied it. Thus, the applicant argued that Tribunal’s reasons disclose no weighing or balancing. That much is correct and might suggest that another error was made by the Tribunal, namely, a failure to comply with the Direction by failing to “weigh” in accordance with cl.6.1. However, that does nothing to support the second argument. As noted above, the Direction requires a weighing process, even if the word “rigorously” is employed: see sub-cls.5.1(2)-(5) and sub-cl.6.1(1). Secondly, the word “rigorously” is carefully framed to be part of the Government’s view rather than a direction addressed to the decision-maker. The decision-maker must take that view as part of the matters to be weighed rather than simply to follow the view. Thirdly, as mentioned above, the word “rigorously” in this context does not necessarily equate to harshness, but admits of the less stringent meaning of “detailed and thorough manner, accurately or exactly”. On that understanding, the Direction does not amount to a prescription that a visa be cancelled in almost every case.
For those reasons, if the issue had arisen, I would have found that the Direction was not invalid.
Conclusion
The Tribunal’s decision was affected by jurisdictional error. There will an order that a writ of certiorari issue bringing the decision into the Court to be quashed and a writ of mandamus addressed to the Tribunal requiring it to complete its review according to law. The first respondent should pay the applicant’s costs.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Smith
Associate:
Date: 19 May 2015
CORRECTIONS
Cover sheet and Orders: Page 1, Catchwords – replace “Refugee” with “Migration”.
Cover sheet and Orders: Page 1, Second Respondent – replace “Refugee” with “Migration”.
Cover sheet and Orders: Page 2, Order (1), line 1 – replace “Refugee” with “Migration”.
Cover sheet and Orders: Page 2, Order (1), line 2 – delete “Refugee Review”.
Cover sheet and Orders: Page 2, Order (2), line 1 – delete “Refugee Review”.
Reasons for Judgment: Page 1, Second Respondent – replace “Refugee” with “Migration”.
Reasons for Judgment: Page 1, Paragraph 2, line 5 – after the words “to the” insert “second respondent” and replace “Tribunal” with “(“Tribunal”)”.
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