Lasalo Paeu v Minister for Immigration and Citizenship

[2011] AATA 792

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION

[2011] AATA 792

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2011/3696

GENERAL ADMINISTRATIVE DIVISION		)
Re		Lasalo Paeu

Applicant

And Minister for Immigration and Citizenship

Respondent

DECISION

Tribunal Mr P W Taylor SC, Senior Member

Date10 November 2011

PlaceSydney

Decision The decision under review is set aside.

....................[sgd]......................

Mr P W Taylor SC, Senior Member

CATCHWORDS

IMMIGRATION & CITIZENSHIP: Visa cancellation – character test - substantial criminal record - whether Tribunal should exercise discretion to cancel applicant's visa pursuant to s 501(2) of the Migration Act 1958 -– Minister’s direction issued under s 499(1) of the Migration Act 1958 – Direction [41] applied – protection of the Australian community – seriousness and nature of the relevant conduct – the risk conduct may be repeated – best interests of children

LEGISLATION

Migration Act (Cth) 1958, s 501

Direction [No. 41] - Visa Refusal and Cancellation under section 501

Commonwealth of Australia Constitution Act 1901 s 51 (xix)

Australian Citizenship Act 2007 s 12 & 16.

CASES

Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280

Collins v Minister for Immigration and Ethnic Affairs (1981) 36 ALR 598

Evans v Marmont (1997) 42 NSWLR 70

Filipo and Minister for Immigration and Citizenship [2008] AATA 114

Hindi v Minister for Immigration and Ethnic Affairs (1988) 20 FCR 1

Kwong Leung Lam v Minister for Immigration and Multicultural Affairs [1999] AATA 56

Makasa v Minister for Immigration and Citizenship [2011] AATA 719.

Minister for Aboriginal Affairs v Peko Wallsend (1985-6) 162 CLR 1

Minister for Immigration and Citizenship v Obele [2010] FCA 1445

Minister for Immigration and Citizenship v Shea [2011] FCA 37

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Minister for Immigration, Local Government and Ethnic Affairs v Batey (1993) 40 FCR 493

Minister for Immigration v Yusuf (2001) 206 CLR 323

Oliver v Minister for Immigration and Citizenship [2011] FCA 534

R v Hunt; Ex parte Sean Investments Pty Ltd (1979) 180 CLR 322

R v Toohey; Ex parte Meneling Station Pty Ltd (1982) 158 CLR 327

Rent to Own (Aust) Pty Ltd and Australian Securities and Investments Commission [2011] AATA 689

Re Stone and Minister for Immigration and Ethnic Affairs (1981) 3 ALN N129

Steed v Minister for Immigration and Ethnic Affairs (1981) 37 ALR 620.

Teoh v Minister for Immigration and Ethnic Affairs (1994) 49 FCR 409

Tickner v Chapman (1995) 57 FCR 451

Visa Cancellation Applicant v Minister for Immigration and Citizenship [2011] AATA 690

REASONS FOR DECISION

10 November 2011 Mr P W Taylor SC, Senior Member         

1.      Mr Paeu is a 36 year old New Zealand national.  He has lived in Australia with his wife and children since June 2000.  In November 2009 Mr Paeu was arrested at Sydney airport, after being found to have 261grams of methamphetamine concealed in his clothing.  He was taking it to Perth, as a courier for a drug dealing syndicate that operated between Sydney, Perth and Kalgoorlie.  Methamphetamine is a prohibited drug, for the purposes of the Drug Misuse and Trafficking Act 1985 (NSW).

2.      Mr Paeu’s arrest led to:

(a)his 22 November 2010 conviction for knowingly taking part in the supply of a commercial quantity of a prohibited drug, contrary to s 25 of the Drug Misuse and Trafficking Act 1985;

(b)a sentence to three years imprisonment, with a two year non-parole period;

(c)the Minister’s 26 August 2011 decision, under s 501(2) of the Migration Act 1958, to cancel the temporary visa under which Mr Paeu resided in Australia; and

(d)the present proceedings, in which Mr Paeu applies for the review of the visa cancellation decision.

Ministerial Direction 41

3. The Ministerial cancellation power was enlivened by Mr Paeu’s three year custodial sentence. It meant that he had a “substantial criminal record” for the purposes of s 501(7) of the Migration Act 1958 (“Migration Act”). Because of that record he did not pass the character test in s 501(6) of the Migration Act. Where the Minister is not satisfied that a person passes the character test, s 501(2) confers a power to cancel the person’s visa. That power may be exercised by the Minister personally or by a delegate the Minister has authorised under section 496 of the Migration Act.

4. If a delegate exercises the power to cancel a visa, the former visa holder can apply to the Tribunal, under s500(1)(b) of the Migration Act, for a review of the decision. If either a delegate, or the Tribunal on review of a delegate's decision, decides not to cancel a person's visa the Minister may, nevertheless, set aside that decision and exercise a personal power to cancel the visa: see s 501A of the Migration Act.

5. The exercise of the visa cancellation power, both by a delegate and by the Tribunal, must comply with any regulations made under the Migration Act. It must also comply with any Ministerial directions authorised by s 499 of the Migration Act. Since 15 June 2009 the applicable Ministerial directions are contained in a document entitled "Direction [41] - Visa refusal and cancellation under s 501”. It is more shortly known as Direction [41].

6.      Direction [41] is frequently referred to in decisions of this Tribunal.  In a convenient shorthand it is commonly, and not inaccurately, described as requiring regard to four “primary considerations”, and a range of other relevant considerations.  The four primary considerations are:

(a)protection of the Australian community from “serious criminal or other harmful conduct, particularly crimes of violence”;

(b)whether the person was a minor when they began living in Australia;

(c)the length of time the person had been ordinarily resident in Australia before engaging in criminal activity, or other relevant conduct; and

(d)relevant international obligations, including those arising under the Convention on the Rights of the Child and others arising under various international refugee and non-refoulement obligations. 

7.      Despite the general accuracy of the shorthand reference to the mandatory "primary considerations" in Direction [41], it is important to understand the setting in which the directions operate.

8.      The Migration Act 1958, according to its long title, is an Act relating to the entry into, and presence Australia of aliens, and the departure or deportation from Australia of aliens and certain other persons. The declared object of the Migration Act (as set out in s 4 of the Migration Act) is “to regulate, in the national interest, the coming into, and presence in, Australia of non‑citizens”. In order to advance that object the Act:

(a)requires every person who enters Australia, whether citizen or non-citizen, to identify themselves;

(b)provides for visas permitting non‑citizens to enter or remain in Australia;

(c)declares that those visas are “the only source of the right of non‑citizens” to enter or remain in Australia;           and

(d)provides for the removal or deportation from Australia of non‑citizens whose presence in Australia is not permitted.

9.      The term "alien" derives from s 51 placitum (xix) of the Commonwealth of Australia Constitution Act. Though not defined in the Migration Act itself, it is synonymous with the term "non-citizen". That term means anyone who is not an Australian citizen. An Australian citizen is someone who, in the most commonly encountered eligibility criteria:

(a)was born in Australia and either (i) had an Australian citizen, or a permanent resident, parent or (ii) was ordinarily resident in Australia for the first 10 years of their life; or

(b)is a person who was approved by the Minister to become an Australian citizen: see Australian Citizenship Act 2007 s 12 & 16.

10. A visa is a formal permission to travel to, enter or remain in Australia. The Minister may grant visas to non-citizens in the circumstances contemplated by Division III (Ss 28 - 96) of the Migration Act. The Minister may cancel a non-citizen’s visa in a number of different situations. These include, relevant to the present matter, satisfaction that the person's presence in Australia "is, or would be, a risk to the health, safety or good order of the Australian community”, or satisfaction that the non-citizen does not satisfy the character test: see Ss 116(1)(e) & 501(2) of the Migration Act. There are six different situations in which a non-citizen does not pass the character test. These include, relevant to the present circumstances, where the person: (i) has a substantial criminal record; (ii) is reasonably suspected by the Minister of involvement in criminal conduct; (iii) is not of good character because of their past and present conduct; or (iv) presents a significant risk of engaging in criminal conduct or represents a danger to the Australian community in any way: see Migration Act s 501(6).

11. In order to exercise the visa cancellation power the Minister must give the visa holder notice of the contemplated reason for the visa cancellation, particulars of relevant information and an invitation to comment: see Ss 119 & 120 of the Migration Act. Once the Minister has given the required notice, and the person has either responded to the invitation to comment, or the time to do so has expired, the Minister may exercise the cancellation power at any time.

12. Apart from the implications to be drawn from the statements of its object, and from the detailed provisions relating to the grant and cancellation of visas, the Migration Act does not explicitly address the criteria relevant to the actual exercise of the visa cancellation power. There are numerous prescribed cancellation grounds set out in Division 2.9 of the Migration Regulations 1994. But the criteria particularly relevant to a decision to refuse or cancel a visa on character grounds, under section 501 of the Migration Act are those set out in Direction [41].

13. Discharge of the mandatory obligation, under s 499(2) of the Migration Act, to comply with the Minister's directions about the exercise of powers conferred by the Act requires identification, and a proper understanding, of the substantive content of the directions themselves. In the case of Direction [41] there are several significant features of the Minister's direction.

14. The preamble to the Direction [41] restates the object of the Migration Act "…to regulate, in the national interest, the coming into and presence in Australia of non-citizens".   It then adds the following elaboration:

5.1 Objectives

(2) … in order to safeguard the Australian community and to enable it to effectively discharge its duties and responsibilities to the Australian people, the Government seeks to protect the Australian community from unacceptable risks of harm as a result of criminal activity or other serious conduct by non-citizens.

(3) The Government is especially mindful to protect the safety of the community's more vulnerable members, including minors, the elderly and the disabled.

15.     Thereafter, Direction [41] clause 5.2 contains a statement which, although headed "General Guidance", in fact contains both elements of prescription and elements of guidance. The most specific prescription is that the decision-maker needs to consider both (i) the nature of any harm that the person concerned may cause to the Australian community, and (ii) the risk of that harm occurring. So far as general guidance is concerned, and apart from heralding a more specific subsequent elaboration of relevant factors, clause 5.2 informs decision-makers that "in some circumstances" it may be appropriate for the Australian community to accept "more risk" where the person has, in effect, become part of the community. That suggested integration may be the result of the person having spent either their formative years, or a major portion of their life, in Australia.

16.     A fundamental aspect of Direction [41] is an emphasis upon the need for decision-makers to recognise the two stages of a visa cancellation decision based on character grounds.  The first stage is the relevant character test. The second stage, if the decision maker is not satisfied the person passes the character test, is the process of consideration required to determine "whether it is appropriate to refuse or cancel the visa given the specific circumstances of the case":  see Direction [41]: Part 2(2) & Part 2; Part B clause 8(1).  This basic distinction is evidenced by the structure of Part 2 of Direction [41], which distinguishes between "Part A - Application of the character test" and “Part B - Exercising the discretion”.  This distinction necessarily conveys that a non-citizen’s failure to pass the character test merely enlivens the potential for exercise of the cancellation power, rather than conveys a predisposition for visa cancellation.

17.     The explicit mandatory obligation Direction [41] imposes on decision-makers in exercising the discretionary cancellation power is to "take into account" the primary considerations, to the extent that they are "directly relevant" in the particular circumstances: see Part 2; Part B clause 9(1) & 9(2).  The task of taking these considerations into account is thereafter described as requiring "consideration", "due consideration", or “(due) regard to” a wide range of examples and relevant factors.  One of those, which requires “due consideration” is the Government's objectives: Part 2; Part B clause 10.1; 9(1) & 9(2).  Sometimes matters are highlighted by particular emphasis. For example:

(a)violent crimes against vulnerable persons are described as "especially abhorrent to the whole community":  Part 2; Part B clause 10.1.1;

(b)the person’s previous general conduct and total criminal history are to be considered as “highly relevant” and "particularly relevant" to assessing a person's risk of reoffending:  Part 2; Part B clause 10.1.1;

(c)“favourable”, or “more favourable”, consideration is to be given where a person spent their formative years, or a long period of acceptable conduct, in Australia:  Part 2; Part B clause 10.1.1.

18.     Direction [41] distinguishes between "primary considerations" and "other considerations in two respects. First it contemplates that "primary considerations" are likely to be directly relevant in every case. Second it requires that "generally" the “other considerations” should be given less weight than the primary considerations.  The other considerations include, but are not confined to, the person’s family ties, age, health and hardship.

19.     A significant aspect of Direction [41] is that the mandatory obligation to consider and take into account the relevant considerations does not (with one presently irrelevant exception relating to the International Covenant prohibition against refoulement) dictate the emphasis that decision-makers must actually give to particular factors.  Even the mandatory obligation to take into account the primary considerations, and the indication that they are to be accorded comparatively more “weight” than other matters, is subject to the qualification introduced by the use of the word “generally”: see Part 2; Part B clause 11(2).  That broad qualification necessarily implies that in some circumstances the "other" considerations may be accorded more significance than the primary considerations and may be determinative against the exercise of the cancellation power.

20.     What arises from this review of the structure and features of Direction [41] is the importance of understanding the real content of the mandatory obligation to “comply” with the direction in the exercise of the power to cancel a visa held by a non-citizen.  The specific expressions of obligation, as I have summarised them in paragraph 17, refer to matters that decision makers must "take into account" and to which they must give “consideration”.  The obligation to consider has an element of generality, but it requires “an active intellectual process”:  Tickner v Chapman (1995) 57 FCR 451 at 462. In some contexts a statutory requirement to “have regard to” a specific matter, requires the decision-maker to give the matter significance as a fundamental element in the decision-making process: R v Hunt; Ex parte Sean Investments Pty Ltd (1979) 180 CLR 322 at 329. In other contexts, where the statutory requirement is to have regard to specific criteria, although other matters are also inherently relevant to the exercise of the relevant power, those specifically nominated matters must be the focal points in the deliberative exercise of the power: Evans v Marmont (1997) 42 NSWLR 70 at 77to 78. In both contexts the obligation to “have regard” is substantive, and not discharged by mere advertence to the stated criteria. This proposition is illustrated by two examples. The first of them highlights the importance of the statutory context in conveying the substance of the relevant obligation. The second example indicates the critical nuance of difference between mere awareness, and the process involved in actual “consideration”.

21.     The first example is R v Toohey; Ex parte Meneling Station Pty Ltd (1982) 158 CLR 327. In that case the High Court considered a statutory obligation to have regard to “A”, and to comment on “B”, “C”, “D” and “E”. The court held that the two obligations had a different substantive content. The obligation to comment neither required nor permitted the decision maker to “have regard to” those matters in the exercise of the statutory power. Conversely, the fact that the obligation to comment had been complied with, did not mean that those matters had actually (and impermissibly) been taken into account.

22.     The second example is Hindi v Minister for Immigration and Ethnic Affairs (1988) 20 FCR 1. Mr Hindi was a Lebanese citizen who entered Australia from Liberia on a temporary visa, and then applied for a further visa on humanitarian grounds. He provided letters detailing his inability to return to either Liberia (because his long standing employment there had been terminated and he had “no house, no job, no certainty of being received into the country and no guarantee in relation to his safety”) or Lebanon (because of the civil war there). The Federal Court held that the decision-maker did not take the detailed submissions adequately into account merely by recording having read and rejected them. Sheppard J noted the decision-maker’s specific claims to have “read”, “noted” and to have “been aware of” the detailed submissions. But His Honour continued”

“…it would be a sad day if [decision makers], alert to a possible criticism of this kind, began to use phrases such as “carefully read and considered”, “taken very much into account” and such like. Such an approach would give the whole exercise an undesirable artificiality. But in the present case I believe an absence of proper consideration has been demonstrated and this causes me to have serious misgivings about the various phrases which have been used which I fear were used in a perfunctory way… ”.

23.     Judicial discussion about obligations to “consider”, “have regard to”, or “take into account” specific matters, is most informative about the nature of the deliberative process, and the permissible relative significance of different matters, where they are few in number, or where they do not compete for contrary outcomes in the exercise of the relevant power.  The substantive content of the obligation becomes more obscure when the stated considerations are comprehensive, appear to include all the likely relevant considerations, and potentially require a choice between competing outcomes.    Direction [41], with its detailed prescription of relevant considerations, illustrative exegesis in relation to many of them, and an implicit requirement to “weigh” matters in a process of balancing competing considerations, is of that more elaborate kind.

24. Against this background there is an elusive quality about the character of a decision-maker’s obligation to “comply” with Direction [41]. What is required to evidence compliance, in any particular case, will often be a matter of impressionistic judgment. Minds may reasonably differ about those kinds of judgment. But the likelihood of the decision-maker’s subjective actual compliance, and the likelihood of objective satisfaction about substantive compliance, will best evidenced by the extent to which the decision maker’s reasons convey attentive care to matters of fact and law, and a real process of thoughtful deliberation about the mandatorily relevant considerations.

25.     Thoughtful deliberation requires more than mere acknowledgment of the relevant considerations.  Indeed mere acknowledgment, if it conveys a formulaic process, may actually detract from, or at least fail to convey, satisfaction about, the reality of the decision-maker’s evaluative deliberation:  see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 266 (referring to the use of standard wording in reasons for decision). The actual process of deliberation may be short, and it may be significantly impressionistic in its ultimate conclusion. But what it must convey is a real understanding of the true scope and character of the decision making function involved.

26.     There is an inevitable appearance of tension between the care and attention required to discharge a complex statutory function, with proper regard to the mandated statutory criteria, and the desiderata of the Tribunal’s own function.  Those desiderata are a review process that is “fair, just, economical, informal and quick” and is conducted with “as little formality and technicality, and … as much expedition, as … proper consideration … permit”:  see Ss 2A and 33(1) of the Administrative Appeals Tribunal Act 1975.  The emphasis on desirable informality and expedition, in particular, encourages brevity in reasons for decision.  That encouragement is often expressed at a level of permissive generality:  see Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; and Steed v Minister for Immigration and Ethnic Affairs (1981) 37 ALR 620 at 621. That generality is acceptably accurate in many contexts. These include situations where: (i) the decision is essentially one of the characterisation of particular events (Pozzolanic); (ii) minute criticism of wordings are relied on to impugn reasons that do correctly address the substance of the matter (Wu Shan Liang); (iii) the omitted matter has really been subsumed, or rendered immaterial by other findings (Steed); or (iv) where the matters omitted could not materially affect the decision: Minister for Aboriginal Affairs v Peko Wallsend (1985-6) 162 CLR 1 at 40 per Mason J. But brevity in reasons for decision cannot be permissibly achieved by failure to address material considerations - such as contentious issues of fact, or substantial contentions of the parties: Minister for Immigration and Citizenship v Shea [2011] FCA 37 at [34] - [42]. If contentiously material matters are not explicitly dealt with in the reasons, an inference is available that the decision maker has failed to have proper regard to them. In many instances the inference will be appropriate to draw - although it

“… is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected:   Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 at [47]”

27.     Ultimately it is a matter for the decision-maker to identify and address those matters they consider material to the particular decision.  The decision-maker’s views about materiality may differ from those of the parties, and a decision-maker does not have to address every matter for which the parties contend.  But a decision maker’s selective identification, and assessment, of the matters it considers material to the decision “may demonstrate that it took into account some irrelevant consideration or did not take into account some relevant consideration”:  Minister for Immigration v Yusuf (2001) 206 CLR 323 at 346.

28.     I have made the preceding remarks for the purpose of addressing the particular difficulty of arriving at a “correct or preferable decision” in cases of the present kind.  It is inherent in the generality of the obligations imposed by Direction [41] that, in any particular case, a range of possible views may be taken of the comparative significance of particular considerations.  It is unlikely that in every case any decision will commend itself as the only “preferable” conclusion available to a logical and rational decision-maker who properly complies with the Direction [41]:  Oliver v Minister for Immigration and Citizenship [2011] FCA 534 at [48] to [51] Indeed it is more likely, as the plethora of published decisions of the courts attests, that the diversity and complexity of the circumstances involved in these kinds of matters, will produce some diversity of rational views about whether the outcome in any particular case was indeed “preferable”. But diversity of opinion of that kind is unavoidable and, in a sense, not material. The Tribunal’s function is to arrive at a decision that it regards as “preferable” in the particular circumstances. Before arriving at that decision the Tribunal must have properly had regard to the relevant considerations, and complied with its statutory obligations. If it has done so, then the Tribunal’s decision is, with regard to the discharge of its functions, the “preferable” decision. Whether the Tribunal’s ultimate decision is “preferable” in this sense, will depend on the apparent quality of the expressed reasoning process. An important part of that quality will be the appearance that the reasons convey a proper appreciation of the nature and purpose of the statutory power.

29. The process of deliberation, and the expression of reasons, is difficult where considerations are numerous and potentially compete. The decision maker must move progressively from a general awareness of the relevant considerations, to a process of deliberation in having regard to them. Then there is a process of assessing the comparative significance of the various relevant considerations - a process implied by the references in Direction [41] to “weight”, “due regard” and to the implication that “other considerations” (rather than the “primary considerations”) might be determinative in some matters. Ultimately that process must reach a point where consideration of the very many potentially relevant factors identified in Direction [41] produces a state of mind either to affirm, or set aside, the visa cancellation decision. That process involves an intuitive comparison of relevant considerations and, ultimately, a decision to regard some combination of them as determinative. That reasoning process must be explicit and must convey a clear indication as to why, and the extent to which, the decision-maker has treated each material consideration as influential in the ultimate outcome. That ultimate outcome must be informed by the objects of the Act, and the exegesis in the preamble to Direction [41]. The critical elements in that exegesis are: (i) the notion of Governmental “duties and responsibilities to the Australian people”; and (ii) the concept of “unacceptable risk” of harm from the future conduct of the non-citizen.

30.     In the present case the Minister’s submissions suggested that a very important part of the process or arriving at the preferable decision in cases of the present kind is to have regard to community values and standards.  This submission referred to Visa Cancellation Applicant v Minister for Immigration and Citizenship [2011] AATA 690 and Makasa v Minister for Immigration and Citizenship [2011] AATA 719. There is an imprecision about this submission, and about the potential relevance of "community values or standards. Imprecision about these matters is not desirable.

31.     The first point to bear in mind is that much of what was said in Visa Cancellation Applicant v Minister for Immigration and Citizenship [2011] AATA 690 was couched at a level of generality. This is apparent from the fact that almost the entirety of the general considerations set out in paragraphs [62] - [82] of the reasons appears, without modification, in another decision delivered on the same day but dealing with an entirely different statutory context: Rent to Own (Aust) Pty Ltd and Australian Securities and Investments Commission [2011] AATA 689 at [45]-[68]. 

32.     The second point to bear in mind, is that after setting out the general discussion about the potential relevance of community standards and values in arriving at a "preferable" decision, the reasons in Visa Cancellation Applicant turned to the particular situation of the cancellation power conferred by s 501 of the Migration Act. That section of the reasons began with the following paragraph:

“83. In cases under s 501 of the Migration Act the Tribunal must carefully assess the applicant’s case in accordance with the Minister’s Direction. That is the basis for assessment of the case. But when this is done there is still an ultimate question of what is the preferable decision. Members of the tribunal often deal with this issue by referring to their “satisfaction” or “opinion”. The purpose of these remarks has been to suggest that another basis of assessment might be added to their assessments so that the ultimate decision is not concluded in terms which may appear to be personal.”

33. This paragraph unarguably emphasises the Tribunal's obligation, in exercising its review functions relating to a visa cancellation of the present kind, to comply with Direction [41]. Significantly, there is no express requirement in that direction to have regard to community values or standards. What the direction requires, as I have earlier indicated, is regard to the objectives of the Migration Act and the preamble to the direction. I suggested in paragraphs 14 and 29 above that the critical elements of those objectives were: (i) the national interest in regulating the presence of non-citizens; (ii) the government's desire to "effectively discharge its duties and responsibilities to the Australian people"; and (iii) the concept of "unacceptable risks of harm" attributable to the conduct of non-citizens.

34. At a broad level of generality the concepts of "national interest and "community standards and values” may be regarded as synonymous. At that level of generality, a contention that decision-makers should take into account a concept of the latter kind may be instructive. But it is instructive only to the extent that it points informatively to the content of the Tribunal's obligations under Direction [41]. Those obligations are to give "due consideration" to the specifically stated objective of the "national interest" as elucidated in clause 5.1 - and which I have set out in paragraph14 above. That consideration may involve, at least indirectly, some regard to perceptions of community standards and values in determining what weight should be given to particular criteria. Perceptions of what constitute community standards may be informative in determining whether a perceived risk of harm is “unacceptable” in the circumstances of a particular non-citizen.

35.     The third point to bear in mind is that there cannot be, in any particular case, deference by the Tribunal to the reviewable decision itself, or to other decisions of the Minister.  The first of these propositions has long been authoritatively determined in the Federal Court: Collins v Minister for Immigration and Ethnic Affairs (1981) 36 ALR 598. It is in fact emphasised in Visa Cancellation Applicant itself at [2011] AATA 690 [88] & [89]. There is an obviously compelling reason for that approach. The quality of the reviewable decision depends on the information on which it was based, and the reasons with which it was expressed. Those matters must always govern any significance that could properly be accorded to the decision. But the Tribunal’s review function requires it to assess the totality of the relevant circumstances, not just those that were considered by the primary decision maker. The Tribunal must also develop and express its own reasons for its decision in the circumstances it considers. The Tribunal’s statutory function does not permit it to accord evaluative significance to either the decision under review or to decisions in other matters. The actual reasons for those decisions may be useful, if they are both available, and relate to circumstances materially similar to those involved in the particular review proceedings. But their use is really limited to that of informing, rather than dictating, the content of proper deliberative analysis in the particular review proceedings. This limitation is inherent in the content of Direction [41] itself, and in the basic nature of the Tribunal's review function - to arrive at the correct or preferable decision in the particular case.

36. The fourth point to bear in mind is that the discretionary power to cancel a non-citizen's visa, whether exercised by a delegate, the Tribunal or the Minister, must be exercised conformably with the underlying purposes and objectives of the Migration Act and Direction [41]. At its most basic level, according to those objectives, the purpose of the visa cancellation power is to protect the national interest. There is, in that respect, no difference between the functions of a delegate, the Tribunal or the Minister. The process of evaluation that the Tribunal is required to undertake in complying with Direction [41] is one which, by its nature, requires decision-makers to undertake the process of discriminating evaluation between differently weighted considerations, some of which may compete. It is likely that the difficult process of consideration thus required will permit different ultimate views about the "preferable" outcome in particular cases. That possibility does not itself, justify proper criticism of any particular decision-maker. Neither does it threaten attainment of the objective of consistency in administrative decision-making. The desirable consistency in administrative decision-making lies not in the outcome of particular cases but in an adherence to the principles that are to be applied. That adherence requires care, and real, informed deliberation. It may usefully be accompanied by a self-conscious awareness that even careful initial deliberation may not consistently produce a personal view sufficiently congruent with the objectives of the Migration Act, to constitute the "preferable" decision. It will always be necessary for a decision maker to ensure their decision properly addresses the objectives of the Direction, and involves a genuine assessment of whether or not the non-citizen represents an unacceptable risk from which the Australian community should be safeguarded.

Primary consideration 1:  Protection of the Australian community

37.     Mr Paeu’s November 2010 conviction was for an offence that carries a maximum penalty of $350,000, 20 years imprisonment, or both.  Both that potential penalty, and the specific reference in cl 10.1.1(2) of Direction [41] to the possession of either trafficable or commercial quantities of illicit drugs, characterise the offence as one that must be regarded as “serious”.  In the context of Direction [41], avoidance of future similar conduct is demonstrably within the protective object of the cancellation power.  The Minister’s submissions sought to emphasise the point by drawing attention to contemporary statements by senior law enforcement officers expressing real concern about the level of illicit drug use, and specifically the use of methamphetamines.  The Minister also drew attention to a 2010 survey by the Australian Institute of Health and Welfare.  The survey suggested the existence of community support for increased penalties for the sale or supply of illicit drugs, and a clear suggestion of significantly greater disapproval of commercial, as distinct from personal use, involvement with illicit drugs.  Finally the Minister relied on the wide range of potential adverse consequences of illicit drug use.  These included adverse physical and mental health, the heightened risk of contracting infectious diseases, and financial and relational difficulties.

38.     All of these points are well made, and not really disputed by Mr Paeu.  The Minister’s emphasis on the range of matters to which his submissions referred is a useful way of ensuring due regard to what is potentially involved in the characterisation of any particular offence as “serious”.  But, in another sense, those considerations are already evident from the nature of the offence and the very significant potential penalties for which the relevant legislation provides.  Moreover it is important, in the exercise of a power of the present kind, to pay proper regard to the circumstances of the particular offence and of the offender.  Emphasis on the seriousness of the offence, if it only considers the generality of the kind of conduct to which the potential criminal sanctions apply, bears some risk of deflecting necessary attention away from the specific circumstances of the particular individual.  That risk ought to be recognised, and avoided.  These matters are best considered in the context of the risk of Mr Paeu engaging in the future in similar criminal conduct, or in any other kind of serious harmful conduct

39.     The Minister’s delegate’s reasons for decision expressed the view that Mr Paeu’s criminal history, apart from his 2010 conviction, was relatively minor in nature.  (It involved two offences, in early 2007 and 2008, for driving whilst disqualified or suspended.  There was a March 2006 offence of maliciously damaging property, for which Mr Paeu was placed on a 12 month bond.) I would have come to the same view as the delegate, even in the absence of further information from Mr Paeu.  In his evidence Mr Paeu said that the malicious damage offence involved minor damage to the bonnet of a car outside a nightclub.  The driving offences whilst deliberate occurred in unremarkable circumstances that involved no adverse consequences, other than to Mr Paeu himself.  None of these offences provides a factual background that meaningfully increases the likelihood of Mr Paeu engaging in serious harmful conduct.  Indeed the comparatively unremarkable nature and extent of Mr Paeu’s criminal history actually highlights the apparently aberrant nature of his 2009 drug trafficking offence.

40.     I conclude that Mr Pau’s drug trafficking offence is of a kind to which the protective objects of the visa cancellation power apply.  Moreover it is an offence relevantly and directly related to drug trafficking.  Those kinds of offences, having regard to the very extensive penalties that apply to them, are clearly matters that Australian law seeks to deter and to punish severely.  Drug trafficking in general promotes and facilitates a range of risk taking behaviours which are unacceptable to the Australian community.  It exposes the community to the harmful consequences of those risks and to substantial costs in seeking to both prevent and to ameliorate the consequences of their occurrence.  Participation in drug trafficking, even if only as a “courier”, is a direct contradiction of the standards and values of the community.  It is conduct engaged in for direct personal gain, at the potential cost to the community in general, and at the potential risk and cost to those who are prepared to purchase, necessarily without any means of legal recourse, these kinds of prohibited substances.  Viewed as but one aspect of the Direction [41] consideration, there is a considerable justification for regarding any risk of this kind of future conduct by Mr Paeu, as one that is unacceptable.

Risk of Re-offending

41.     Mr Paeu’s principal contention is that his conviction offence was the result of aberrant conduct, and attributable to “poor judgment” in response to pressing financial commitments and the needs of his family.  In that context that Mr Paeu sought to emphasise the remarks of the sentencing judge, at the time of his conviction and sentence in November 2010.  The sentencing judge

(a)whilst noting that in the period between 8 September and 1 November 2009 Mr Paeu had already allowed himself to be used as a conduit for funds involving the activities of daily drug syndicate, accepted that Mr Paeu only became involved shortly before 10 November 2009;

(b)found that Mr Paeu participated in the offence because of the serious financial situation in which he found himself at the time and involved, in particular:

(i)his car having been repossessed;

(ii)owing money for utilities including electricity;

(iii)about to be evicted from his home; and

(iv)total debts of about 25,000;

(c)noted that Mr Paeu was due to make about $5,000 for his participation in the particular offence;

(d)accepted that Mr Paeu’s personal role in the offence was below the mid range in terms of objective seriousness;

(e)applied a 25% sentencing discount because Mr Paeu pleaded guilty at the earliest opportunity;

(f)regarded Mr Paeu’s criminal record for other offences as essentially irrelevant to the exercise of the sentencing discretion; and

(g)specifically accepted the opinion of a psychologist that Mr Paeu’s risk of re-offending was slight, regarded his prospects of rehabilitation as good and positively concluded that he was likely to find employment soon after his release.

42.     There is considerable understatement in Mr Paeu’s reference to his offence as involving “poor judgment”.  It emerged from his evidence that he had been associating for some time with friends he came to know were involved in drug trafficking.  Some months before his November 2009 arrest, he had allowed one of these friends to transfer money through his bank account.  He had later approached this friend and effectively volunteered to act as a courier.  His instructions, about where to collect the drugs and what to do with them, had been sent to him by telephone text message.  All of this either indicates clearly, or conveys an apprehension, that Mr Paeu was willing to assist the drug trafficking and to do so for financial gain.  It also conveys an apprehension that he was willing to participate in that behaviour and thereby put at risk his liberty and the future of his relationship with his wife and children.

43.     It is also material to note that Mr Paeu conceded a long history of his own possession and use of prohibited drugs.  This included use of cannabis, amphetamines, crystal methamphetamine, cocaine and ecstasy.  He said that all of this was occasional, but repeated, recreational use.  It began when he was in New Zealand and had continued in Australia up until 2007.  His use was encouraged, at least to his perception, by his work environment, regular travel away from home, and his contacts in the retail fashion industry.  But he said it stopped in 2007.  He fixed on that time because his wife had discovered other aspects of his conduct of which she understandably disapproved.  As a consequence of those events he had taken some stock of himself.  He said he had not used illicit drugs since that time.  There is nothing to contradict that evidence.

44.     Mr Paeu’s own past drug use, and his conceded conduct in seeking out a role, albeit a comparatively minor one, in the drug trafficking syndicate’s activities justify apprehension about his future conduct.  Moreover, neither Mr Paeu’s “poor judgment” explanation, nor the sentencing judge’s acceptance that financial stress played a significant role in offence, dictate a conclusion that Mr Paeu has minimal risk of offending in the future in a relevant way. 

45.     As I have said, a claim about “poor judgment” is easily made.  It is also self interested.  It therefore lacks persuasive credibility on both counts.  What is necessary to consider is what factors influenced the “poor judgment”, and the degree of likelihood that they would be repeated.  The factors that materially influenced Mr Paeu’s participation in the 2009 offence appear to have been:

(a)friendship with other people involved in the syndicate;

(b)significant financial problems - and specifically, his unpaid housing rent, other debts and lack of income as a result of a downturn in retail trade related to the local effects of the global financial crisis;

(c)unwillingness to seek more constructive, and less hazardous assistance from others; and

(d)an over-optimism about his ability to endure and survive the adverse retail trading conditions.

46.     Some of these factors have not changed, at least not favourably to Mr Paeu’s circumstances.  He still has debts of at least the same order as he had at the time of the offence.  In fact, they are likely to be rather more the $25,000 approximate total referred to in the sentencing judge’s remarks.  They may be as much as about $53,000 - depending upon how one characterises the approximately $22,000 payout figure on the family’s current car loan. 

47.     Mr Paeu has no specific immediate job prospects.  He has an ambition to establish some kind of takeaway food outlet, as a family business.  But this is no more than an ambition, without any kind of clear business plan, finance, budget or feasibility.  Mrs Paeu has an ambition to establish a business providing support for disadvantaged families.  She and her sister have something of a plan and strategy as to what the business might involve, and how it would be carried out.  But it too is really no more than conceptual.  Its ultimate realistic capacity to contribute meaningfully to the family income is problematical, and certainly unquantified.  The family income has been restricted to Centrelink benefits whilst Mr Paeu has been in prison.  It is likely to be similarly restricted for some future period.  And although Mr Paeu said he wanted to support himself, and his past employment demonstrated his previous capacity to effect that desire, his short term prospects are really unclear and uncertain.

48.     This financial background, with its certain debts and uncertain future income, depicts Mr Paeu as a person in a pressured and vulnerable environment.  The risk of his resorting to further criminality in a reactive attempt to ameliorate such an environment needs to be carefully considered. 

49.     Despite the appearance of some financial parallel between the present situation and those that preceded the November 2009 offence, there are also some significant differences.  They include the following.  Mr Paeu has lost his employment in the retail fashion industry, and does not seek to re-enter it.  Mrs Paeu is now fully aware of the extent of Mr Paeu’s past conduct, and the financial pressures that existed at the time of the offence.  She has subsequently sought assistance in managing the family finances during the period of Mr Paeu’s imprisonment.  She has assumed responsibility in that area, and done so with an appearance of competence and success.  She conveyed, in her account of the way she had cared for the children, secured accommodation, and sought assistance for the family, a competence and resolve on which Mr Paeu could rely.  Mrs Paeu was clear in her support for her husband.  She was articulate and convincing in that regard.  Her personal strength, insight and accomplishment in keeping the family functioning and coherent since 2009 added a degree of poignancy to Mr Paeu’s own evidence.  He said that his problem in the past had been his failure to seek out and rely on support from others, rather than the absence of available support.

50.     Of course some of the support Mr Paeu sought in the past was the source of his present difficulty.  And although Mr Paeu has not been dealing with his former business associates, and does not propose to return to the retail fashion industry, it is not clear that he has entirely severed all contact with those of his former associates who allegedly have had some involvement with drug trafficking.  (It is not clear because in the course of his evidence Mr Paeu on a number of occasions refused to answer questions on the ground of the risk of self incrimination.  On another occasion he objected apparently on the basis that he apprehended his answer might tend to incriminate others.) 

51.     Notwithstanding the Minister’s emphasis on the parallels that can be drawn with Mr Paeu’s financial circumstances in 2009, and indeed the apparent increase in the family’s total indebtedness since, the risk of Mr Paeu relevantly re-offending is low.  That was the sentencing judge’s assessment in 2010.  That assessment appears to have been based on an acceptance of Mr Paeu’s offence behaviour as significantly aberrant, and precipitated by acute, and objectively credible, financial stress likely to have been beyond his capacity to have ameliorated.  That assessment, for the purpose of discharging a sentencing function to which concepts of personal punishment and deterrence were germane, does not require precisely the same significance where the relevant statutory function is essentially protective rather than punitive, but it is a very relevant consideration.

52.     In the present proceedings Mr Paeu’s evidence included the rental statement for the property in which the family lived up until the November 2009 offence.  It clearly evidences variable rental payments for at least the 12 months before June 2009, rental non payment after June 2009, and vacation of the property in November 2009.  This pattern of irregular rental payment, and then non payment, for the family’s residence, corroborates the reality of the financial stress that preceded Mr Paeu’s offence.  It provides real credibility to the likelihood that his willingness to commit the offence was directly related to imminent loss of the residence.  It also affords a meaningful contrast between that situation and the present.  Mrs Paeu obtained rental accommodation for the family in March 2010.  In August 2010 she renegotiated the family’s 2007 car loan, and substantially reduced the amount of the monthly payments required.  Mrs Paeu and the children moved into a new rental property in June 2011.  With rental support, assistance from her brother and sister, and some contributions from their eldest daughter’s youth allowance entitlement, they have kept up timely rental payments.  They have also met all of the renegotiated car loan repayments in a timely fashion.  That good payment record demonstrates the family’s financial discipline and competence.  It provides a reasonable basis for confidence that, within the limits of their modest current means, they are able to obtain appropriate accommodation and meet the associated rental obligations.

53.     When regard is had to the financial circumstances I have considered above, it provides a real contemporary significance to the sentencing judge’s remarks that the risk of Mr Paeu’s re-offending was low.  The low order of risk is further indicated by Mrs Paeu’s support of her husband, in the light of her apparently full awareness of his past conduct.  To those matters I add Mr Paeu’s own claims that his period of incarceration has reinforced to him the “poor judgment” involved not only in the offence itself, but in his previous behaviour.  This was a reference to his previous personal drug taking, and the tolerance of unlawful behaviour which it characterised and, in a sense, encouraged. 

54.     Nevertheless, the fact remains that Mr Paeu deliberately sought out a role as a drug courier.  His willingness to undertake such an activity is a very significant reason to apprehend, and regard as real, the risk that he might do so in the future.  That risk is one of the kind against which Direction [41] clearly contemplates protection.  In support of the proposition the risk should be given determinative significance in the present matter, the Minister emphasised that merely characterising a risk as “low” or “minimal” was not sufficient to detract from the need to give full effect to the protective objects of the cancellation power.  The Minister cited the Federal Court’s decision in Minister for Immigration, Local Government and Ethnic Affairs v Batey (1993) 40 FCR 493 (1993) 112 ALR 198. There the Full Federal Court had emphasised, in the context a person’s past convictions of violent, unprovoked sexual assault, that the “risk” assessment relevant to the exercise of the relevant power (in that case deportation) had both quantitative and qualitative elements. A risk that was quantitatively low, because it had minimal probability of occurring, could nevertheless be qualitatively “real”, if the chances of its occurrence were not “far-fetched and fanciful”: see 40 FCR at 501; 112 ALR 198 at 205. In Kwong Leung Lam v Minister for Immigration and Multicultural Affairs [1999] AATA 56 at [51] said that once a person has shown a disregard for the law, it can never be said that there is no risk of re-offending. This is no doubt true as a general proposition. But the limited utility of relying on a statement of such generality is highlighted by the relevant full context of what President Matthews said in that case. Those passages were in paragraphs [51] and [66] of the reasons and were as follows:

“51. Once a person has shown a disregard for the law, it can never be said that there is no risk of re-offending. However in the applicant's case, for the reasons I have given, I consider that the risk of recidivism is considerably lower than one would expect of a person with his record of behaviour. Overall, I consider that the risk of the applicant committing further offences is a low one.

…

66. As with all cases of this nature, the exercise of the residual discretion under s 501 requires a balance to be drawn between the consequences of an adverse character finding, particularly the risk to the Australian community, with, on the other side, the personal hardship which would be suffered by the applicant's family, particularly his children, as a result of his removal from the country. In this case, as already indicated, I consider that the risk of the applicant re-offending is a low one. But even a low risk is more than the "minimal" risk referred to by Brennan J, then President of the AAT, in Re Salazar-Arbelaez and Minister for Immigration and Ethnic Affairs (1977) 1 ALD 98 as being the acceptable level of risk in relation to sellers of heroin. If that principle were to be applied here, then a finding adverse to the applicant would necessarily follow, notwithstanding that the risk is assessed as a low one. However since that case, the balancing process has changed, at least where children are concerned …”

55.     It is very clear, therefore, that the risk objectives of the visa cancellation power are concerned with both the foreseeability and the probability of “criminal activity or other serious conduct” by non-citizens:  Direction [41] cl 5(2).  They are also concerned with the nature of the apprehended conduct:  Minister for Immigration and Citizenship v Obele [2010] FCA 1445 at [56]. And in Filipo and Minister for Immigration and Citizenship [2008] AATA 1144 the Tribunal cited with approval what the Tribunal had said in In Re Stone and Minister for Immigration and Ethnic Affairs (1981) 3 ALN N129 at N132:

“…The seriousness of the crime is an important consideration. The more serious the offence the greater the affront there has been to the community and the greater the necessity there is to preclude recidivism … even if the risk of recidivism is not high, the risk will strongly support deportation when recidivism, if it does occur, may cause great harm.”

56.     The Minister’s submissions noted that Mr Paeu had committed his conviction offence at a time when it was subject to a two year good behaviour bond, arising from his second driving offence.  But whatever element of disregard for lawful conduct might be inferred from that likely failure to comply with the terms of the bond, is comparatively inconsequential, in the light of the candour with which Mr Paeu conceded that he had knowingly volunteered to become involved as a drug courier.  The same conclusion applies to the comparative insignificance of any inference that is sought to be drawn from Mr Paeu’s other, and in reality, minor offences.

57.     I conclude that the risk of Mr Paeu engaging in future criminal, or other serious conduct, of the kinds illustrated in Direction [41] clause 10.1.1(2), is “real” in the sense in which I have used that expression above.  I also conclude that the risk is significant in the sense that it would tend to facilitate illicit drug use, and promote the illegality of drug traffickers.  It is, however, a less significant risk in the sense that Mr Paeu’s past and conceivable future role in activities of that kind is not that of a principal deliberately setting out to promote drug use. I also conclude that the probability of Mr Paeu’s engaging in such future conduct is extremely low, and indeed minimal.  I reach that conclusion for five essential reasons.  First, I do not regard Mr Paeu’s conceded past personal illicit drug use as either likely to reoccur in the future or to have any material bearing on the likelihood of future drug trafficking by him.  Second, with the exception of his conceded past illicit drug use, his other minor criminal history has no significant relevance.  Third, I accept the evidence that his offence was prompted by extraordinary financial stress and most specifically by the imminent loss of his family’s leased residence.  Fourth, I accept Mr Paeu’s evidence that his offence was a matter of “poor judgment” and that he now fully realises: (i) the strength of support and commitment that is available to him from his wife; and (ii) the hardship, both financial and emotional, he inflicted on his family as a result of the offence.   Finally, notwithstanding the self interested nature of Mr Paeu’s evidence of regret and determination not to re-offend, he did impress me as an intelligent, capable and resourceful person.  I accept that he is in reality committed to their children’s welfare.  His wife is clearly dedicated and able in that regard.  Her support of her husband, given her dedication to the children’s future, is unlikely to have been proffered by her without a real belief in Mr Paeu’s genuine determination, and capacity, not to re-offend. 

Primary consideration 2: Age on entry to Australia

58.     A non-citizen’s minority when they first resided in Australia is relevant in two ways.  First it promotes an enquiry about the extent to which the person spent their formative years in the Australian community.  The answer to that question may itself inform the extent which the community should accept their continued presence.  The reason for acceptance may be provided by various considerations.  The circumstances that led to the non-citizen’s offending conduct may be particularly attributable to features of the community environment.  Alternatively, the person may have become so familiar with the Australian community and way of life that they would be materially disadvantaged in attempting to function effectively  in the place of their formal citizenship.

59.     The second way in which a person’s age on entry may be relevant is in tending to substantiate the likelihood of their substantial connection to the Australian community.

60.     In the present case Mr Paeu came to Australia as an adult.  There is no reason why he should be entitled to have that count in his favour in the exercise of the cancellation power.  Indeed, given his intentional criminal conduct, his maturity when he came to Australia counts against him.  The length of his residence in Australia is best considered in connection with the third of the primary considerations.

Primary consideration 3:  the period of inoffensive residence

61.     Clause 10.3 of Ministerial Direction [41] contemplates that the longer the period of a person’s law abiding conduct after first taking up residence in Australia, the more favourable the consideration to which they are entitled in the exercise of the visa cancellation power.  The expressed reason for this approach is the greater probability that the person will, within the relevant period, have established significant ties to the Australian community.  But this reason does not limit the potential relevance of the matter.  It has been held in the Federal Court that the comparative shortness of a person’s initial period of law abiding residence may itself be a relevant adverse consideration, in the exercise of the visa cancellation power.  This is because the primary consideration requires regard to the length of the period of residence before any impugned conduct occurred.  The fact that the consideration is limited to the period before the person began relevant offending, as distinct from their total period of residence, indicates concern with the duration of the non-citizen’s initial propriety, and not just the extent of the their community ties.  The length of the non-citizen’s past conforming residence in Australia may be informative in assessing the likelihood that the person’s future residence will not involve serious harmful conduct.

62.     In the present case Mr Paeu’s conviction offence occurred more than nine years after he came to Australia.  He had lived here lawfully and productively during that period, subject to two qualifications.  The first is his minor history of driving offences and his conviction for malicious damage – matters to which I have already referred.  They are not offences of the kind to which Direction [41] clause 10 applies, and they have no real bearing on the relevant characterisation of his behaviour for the purposes of this primary consideration. The second is his admitted history of periodic, recreational use of illicit drugs, up until about 2007.  The recreational drug use necessarily involved possession of prohibited substances, and thus repeated criminal offences.  That must be taken into account as a consideration that favours exercise of the visa cancellation power.  However its significance is minimal because:  (i) personal illicit drug use is specifically not included in, and is not intended to be included in, the illustrative examples of serious offences and conduct that are set out in Direction [41] clause 10.1.1(2); and (ii) on the findings I have made, his personal drug use had no direct bearing on the trafficking offence he committed.

Primary consideration 4:  best interests of the Paeu children

63.     Mr and Mrs Paeu were married in November 1994 in New Zealand.  He was then 19 and she was 26.  They now have four children - two daughters aged 16 and 7, and two sons aged 15 and 9.  The two older children were born in New Zealand and hold New Zealand passports, but they have lived in Australia since they were aged 5 and 3.  The two younger children were born in Australia.  They hold Australian passports which record their nationality as Australian. 

64.     The family lived together in Australian until Mr Paeu was arrested in November 2009.  Their children have lived with Mrs Paeu throughout the period since 2009 when Mr Paeu has been in jail.   Mrs Paeu has educated the children at home.  She claims they are a close knit supportive family.  That assessment was corroborated by various supporting statements provided by friends, her sister and brother in law, and a bishop of their church.  It was not subject to any challenge by the Minister.

65.     The delegate’s decision in this matter followed a Notice of intention to consider cancellation that was given to Mr Paeu in May 2011.  The notice invited information about the circumstances of any children under 18 years of age.  It sought consent to discuss the possibility of visa cancellation with the person caring for any children.  It invited submissions from that person, and discussions between the children’s carer and the case manager within the Minister’s department.

66.     Mr Paeu responded in late May 2011.  He completed the personal details form the delegate provided with the notice of intention to consider cancellation.  In those details he provided details of his marriage and children.  He also provided some details of his extended family relationships in New Zealand and Australia.  He stated that he received regular visits from his children, and spoke to them nearly every day.  He said he would be living with the children on his release from prison.  But the information Mr Paeu provided did not include any submission from his wife.  Nor did it include any specific statement about the family’s intentions if Mr Paeu’s visa was cancelled.  It included no specific information about the children’s circumstances. 

67.     It appears that the delegate did not obtain any further information about the children’s circumstances before making the 26 August 2011 cancellation decision.  This is readily apparent from three aspects of the issues paper presented to the Minister’s delegate, and from the delegate’s reasons.  First, the issues paper, but not the delegate’s reasons, specifically recorded that no submissions had been received from either Mrs Paeu or any of the children.  Second, most of the information about the children that was recorded in the issues paper, and alluded to in the statement of reasons was attributed either to the sentencing judge’s remarks or the psychologist’s report on which the sentencing judge had relied.  Third, the delegate’s references to the children’s interests were expressed in terms of generalities and presumptions.  The delegate said it would appear likely that the family would return to New Zealand if Mr Paeu’s visa was cancelled.  But no factual basis for this appearance was given.  It appears to be an inference the delegate drew because of the accounts of the closeness of the family, and Mr Paeu’s desire to live with the children.  The delegate also opined that the family were all likely to be New Zealand nationals, and thus liable to have a wider “eligibility for various forms of welfare support” in New Zealand.  This assertion was not substantiated by any specific information recorded in the reasons.  The issues paper submitted to the delegate noted that if the children returned to New Zealand with their parents this may cause “some degree of disruption” but it would be limited.  It would be limited because (i) the children would still be able to be home schooled by Mrs Paeu and (ii) the New Zealand and Australian cultures and life styles were similar. 

68.     The generality of the delegate’s reasons, and the extent to which they were based on surmise, rather than specific information, is understandable in a general sense.  Mr Paeu’s response to the May 2011 notice of intention had been somewhat perfunctory.  It was certainly not very informative about the children’s circumstances.  And no information had been received from Mrs Paeu, at the time of the decision.  But the delegate, no less than the Tribunal, had an obligation to comply with Direction [41], and the “best interests” of the children is a primary consideration which requires regard to the various matters in Direction [41] clause 10.4.1.   Those matters include:

(a)the specific individual “best interests” of each child:  Clause 10.4.1(3);

(b)the general presumption that a child’s best interest will be to remain with their parents: Clause 10.4.1(4);

(c)the nature and duration of the relationship between the parent and child – both as to the past and the potential future: Clause 10.4.1(5)(a), (b), (c), (f), (h);

(d)the availability of other parental type carers:  Clause 10.4.1(5)(g);

(e)the probable country of the child’s future residence, and any dissimilarity between the circumstances of that country and Australia:  Clause 10.4.1(5)(l), (m), (n), (o); and

(f)each child’s age, wishes, citizenship and length of their period of Australian residence:  Clause 10.4.1(5)(d), (e), (i) and (k).

69.     In the present case the delegate’s decision noted the children’s names and ages.  It proceeded on the basis that the family was likely to return to New Zealand.  This was because “their preferred lifestyle” was for Mrs Paeu to provide home schooling, and meant the family was reliant on Mr Paeu to earn an income.  Apart from recording an assumption that the family would be likely to have access to a wider range of access to welfare benefits in New Zealand, the delegate recorded that the apprehended transition to New Zealand would not be “unduly onerous” for the children.  Finally the delegate recorded that the cancellation decision would not have “a major adverse impact” on the best interests of the children.

70. There are significant shortcomings in the reasoning underlying the delegate’s decision. There is no consideration of the extent to which the children’s circumstances may differ. There is no overt recognition of some of the relevant factors referred to in Direction [41]. And there is a conflation in the reasons between: (i) what in fact are the “best interests” of the children; and (ii) whether the disregard of those best interests is “major” or “unduly onerous”. Finally, there is no overt awareness of the perfunctory nature of the analysis expressed in the reasons.

71.     The purpose of highlighting the apparent deficiencies in the delegate’s expressed reasons is not to rely on their existence to impugn the appropriateness of making a decision to cancel Mr Paeu’s visa.  The important points are to highlight: (i) that compliance with Direction [41] requires a real consideration of all of the potentially relevant factors; and (ii) that proper consideration of the best interests of children imposes special responsibilities on the decision-maker:  see Teoh v Minister for Immigration and Ethnic Affairs (1994) 49 FCR 409 per Black CJ at 413-414. It is also to highlight that the content of the primary decision-maker’s reasons, and the deliberative process that underlies them, may have an impact on the effectiveness of the Tribunal’s own review function. This can arise for two reasons. The first reason is that the non-citizen review applicant will often be both unfamiliar with the nature and scope of the review process, and unrepresented in the review proceedings. The second reason is the limitations, imposed by s 500(6H) & (6J) of the Migration Act, on the Tribunal having regard to oral and documentary evidence provided by a review applicant, unless it has been provided to the Minister at least two business days before the review hearing. The risk is that if the delegate’s reasoning process, and the considerations it addresses, do not conscientiously and accurately address the material considerations, relevant matters may not present themselves to either the applicant, or the Tribunal, in a way that conduces best to their proper evaluation. This risk was, in my view encountered in the present case. In this instance, the delegate’s reasoning process relating to the children’s bests interests was substantially based on generalities. The information provided by Mrs Paeu in her letter to the Tribunal, whilst somewhat more detailed about the children’s individual circumstances, again did not focus, in a way that a represented litigant would have been likely to do, on the precise potential application of the relevant Direction [41] considerations. The consequence of this imprecision in the approach of both parties in these proceedings is that for a time there was an assumption that the children would inevitably return to New Zealand if Mr Paeu’s visa was cancelled. And this assumption tended to deflect attention away from the primary facts that should be taken into account in assessing the best interests of the children.

72. Enquiry about the children’s best interests necessarily involves a consideration of the likelihood that they would return to New Zealand, but the matters are essentially different. The question of the children returning to New Zealand only arises if the visa cancellation decision is affirmed. But the question whether the Tribunal should affirm, or set aside, the decision requires actual regard to the “best interests” of the children, as one of the primary considerations. Contrary to the Minister’s ultimate submission, responsibility for making that assessment, as a primary consideration in the exercise of the cancellation power, cannot be delegated to Mr and Mrs Paeu. The Minister’s submission was that if the cancellation decision was affirmed Mr and Mrs Paeu would decide whether the children’s bests interests required them to remain in Australia or to return to New Zealand. The implication of this submission was that the best interests of the children could not be a significant factor in the Tribunal’s decision, because Mr and Mrs Paeu could always be relied on to act in the best interests of the children. It is an implication which, however factually justified, is not consistent with the Tribunal’s obligation to comply with Direction [41].

73.     I turn now to deal with the children’s best interests.  The eldest daughter is now aged 16 years and six months.  She has lived in Australia since she was five years old.  By July 2011 she had successfully completed a Certificate III course in Beauty Services at the Sutherland TAFE College.  She had also completed a TAFE course in first aid.  It would appear that she is no longer exclusively, if at all, home schooled.  Mrs Paeu said that her daughter was ready to start her career in the workforce, and her TAFE studies were an indication of this.   She said that her daughter, and her second child (to whom I refer below), had both established a strong network of friends and supportive members of both their extended family, and their church, in Australia. 

74.     The second child is about to turn 15 years of age.  He will commence his Year 10 schooling in 2012.  Mrs Paeu said he was “worried with the uncertainty of his father not staying here with us”.  She expressed concern at the impact that would have on his schooling in the important Years 10 to 12 that he was approaching. 

75.     The two younger children are aged only seven and nine.  They both hold passports as Australian citizens. 

76.     The situation of the four children is similar in three important respects.  First, they all have a good relationship, and regular contact, with both of their parents.  Second, that good relationship would be likely to continue, and Mr Paeu would continue (after his release) to be a present and positive influence in their lives, if he retains his visa entitlement.  Third, each child would likely be adversely affected, by Mr Paeu’s separation from the family, if it occurred.  Fourth, all of the children would continue to be supported and cared for lovingly and constructively by Mrs Paeu, if Mr Paeu was to be separated from the family.  Fifth, all of the children have spent most of their lives, in Australia. Sixth, all of the children want to remain in Australia.

77.     The children’s subjective desires to remain in Australia only clearly emerged in the course of my questioning of Mrs Paeu.  The delegate’s assumption that the children and Mrs Paeu would return to New Zealand if the visa cancellation decision was affirmed, went largely unexamined up until that point in time.  In response to a similar question Mr Paeu had said that he expected the family would follow him to New Zealand, if his visa remained cancelled.  Similarly, Mrs Paeu’s detailed letter to the Tribunal could be read as conveying a similar expectation – because she detailed the results of the enquiries she had made of welfare entitlements in New Zealand, and expressed concern about the difficulties the children and family would have in any transition in moving back to New Zealand. 

78.     But Mrs Paeu’s letter to the Tribunal was, on closer examination, ambivalent about the family’s future unity.  She noted her eldest son’s anxiety about the prospect of “his father not staying with us”.  She expressed her own concern that she needed her husband “beside me” to help her effectuate her own future business plans.  These sentiments betrayed an anxiety that Mr Paeu’s return to New Zealand, as a result of the visa cancellation decision, would result in the separation of the family.  For that reason I specifically asked Mrs Paeu what she intended and what the children wanted.  She said that she had discussed the possibility with the children and that they had said they all wanted to stay in Australia.  I pressed her to say, in the light of the children’s declared preference, what she actually intended to do, if the visa cancellation decision stood.  She paused, wiped tears from her eyes and complained that the question was forcing her to choose between her children and her husband.  She went on to say that she had come to Australia to get away from the environment to which she had been exposed in New Zealand.  She explained that her parents were still supporting her younger brother.  That there were difficulties, and a lack of endeavour and opportunity, in her wider family.  She did not want to take her children back to that kind of environment.  I regard Mrs Paeu’s evidence as very significant.  It bespeaks the children’s understandable preference to remain in Australia.  It indicates her judgment that it is likely to be in their best interests to remain here – even if that means separation from her husband.

79.     The children’s individual situations also differ in significant respects.  The two older children are at a more critical stage of their development than the younger children.  The eldest child is about to start her working life.  The elder son is about to start very important schooling years.  Those two children are also likely to have a wider friendship and support group.  They are likely to be less adaptable than their younger siblings, and more likely to be distressed by having to return to New Zealand, and leave their existing environment.   That disruption, and the stress associated with it, could be quite significant.  The family, apart perhaps from Mr Paeu, would have to fund their own return to New Zealand.  They would have to find appropriate accommodation.  They would have to establish their welfare entitlements in New Zealand.  The likely practicalities of these tasks, and the family’s limited means and existing debts, suggest the likelihood of additional stress and hardship for the family.

80.     The two younger children are at less critical years of their schooling.  They are likely to have a greater capacity to adapt, without undue difficulty, to a different community environment in New Zealand.  On the other hand, both of them have spent their lives entirely in Australia.  They hold Australian passports. 

81.     The factors to which I have referred indicate the errors in critical parts of the delegate’s reasons for decision.  The assumption that all of the children were New Zealand nationals was incorrect.  The assumption that all of the children were home schooled and that this was a relevant basis for predicting the likelihood that the children would return to New Zealand, was at least partly incorrect (in the case of the eldest child) and superficial in any event.  In addition, the assumption that the family would have access to a wider range of benefit entitlements in New Zealand than in Australia is at best unsubstantiated.  It is most likely wrong.  Mrs Paeu’s enquiries of New Zealand “Work and Income” suggest that the family entitlements in both countries would be much the same, and in fact marginally less in New Zealand. 

82.     In the Tribunal’s exercise of the review function it is necessary to leave aside any consideration of error in the delegate’s reasoning.  The Tribunal’s task is to comply with Direction [41] on the basis of the information available to the Tribunal.  On the basis of that information I have come to the clear view that the best interests of each of the children is that they remain in Australia.  This is because they have lived here either all, or most, of their lives. They have a supportive familiar environment here.  Mrs Paeu, who is in reality the dominant influence in the children’s lives, regards their prospective future in Australia as much better than if they returned to New Zealand.  The two elder children would be exposed to significant disruption and stress at important transitional stages in their lives.  The two younger children would be deprived of residence in Australia, despite the nationality that Australia has accorded them. 

83.     The children’s best interests are also to have their father as an ordinary resident of the household.  This is the general presumption recognised by Direction [41] clause 10.4.1(4) and there is nothing to indicate that it is an invalid or immaterial consideration in the present case.  On the contrary, the evidence attests to a sound relationship between Mr Paeu and each of his children, and his potential to contribute positively to their general welfare.  That evidence positively enforces the conclusion that the children’s best interests are to remain in a household of which Mr Paeu is part. 

84.     This combination of the factors pointing to the best interests of the children does not point unarguably in favour of setting aside the visa cancellation decision.  It is not certain, although I regard Mrs Paeu’s evidence as indicating it is probable, that she and the children would remain in Australia if the visa cancellation decision was upheld.  If they did return to New Zealand that aspect of the children’s best interests relating to the integrity of the household and, their father’s presence as an important part of it, would be well served.  But the risk of separation is, in my view, real.  Furthermore, without expressing any view about the utility or accuracy of comparison between Australian and New Zealand life styles, cultures and community environments, it is inherently likely to be in the best interests of the children to remain in the Australian community with which they are closely familiar and where they have spent their formative years. 

Other considerations

85.     Few of the “other considerations” contemplated by Direction [41] clause 11 have any material relevance to the present matter.  Mr Paeu is comparatively youthful, and would not encounter any significant personal disadvantage if he was required to return to New Zealand, as a result of the cancellation of his visa.  He grew up in New Zealand.  He retains family ties there.  He is intelligent, industrious, capable and motivated. 

86.     There are however two potentially relevant considerations.  These would arise if Mr Paeu returned alone to New Zealand.  The first is the disruption of his relationship with his wife.  The second is the difficulty the family members would encounter in visiting him in New Zealand.  However, neither of these matters could be regarded as warranting determinative significance.  There are two reasons why.  First, it is problematical whether cancellation of the visa would result in separation of the family.  Whilst I consider that there is a real risk of that eventuality, it is not sufficiently clearly established to materially influence my assessment of the primary considerations.  Second, some degree of optimism should apply to Mr Paeu’s future employment and income prospects.  It is not possible to predict what those prospects might produce, and consequently it is not possible to determine what extent of hardship the immediately family members might encounter in visiting him in the longer term future.  But neither that uncertainty for the longer term, nor the likely difficulty that would exist in the immediate future, is sufficient to materially influence my assessment of the primary considerations.

Acceptable risk

87. I referred earlier to the ultimately impressionistic nature of the task of having regard to the various considerations in Direction [41]. I suggested that one way of focussing attention on the process of evaluating the relevant considerations, where they tend to compete, is to focus on the objectives of the cancellation power, as expressed in the Act and in Direction [41] itself. Those objectives highlight the concept of (un)acceptable risk in the light of the responsibilities of the government to the Australian community.

88.     I have found that Mr Paeu’s continued residence in Australia does pose a “real” risk, and that the risk relates to drug trafficking.  But I have also concluded that the risk has a minimal probability of occurrence.  I have also found that the best interests of the four children strongly favour their continued residence in Australia.  These two findings clearly compete to be determinative of the visa cancellation decision.  Aiding that competition, and favouring cancellation, is the fact that Mr Paeu came to Australia as an adult.  Conversely, the fact that Mr Paeu did not engage in any materially relevant criminality until more than nine years after he came to Australia, tends to reinforce my view that the risk of his relevant re-offending is minimal.

89. I consider that Mr Paeu’s continued residence in Australia is an acceptable risk, given the primary considerations in Direction [41]. The risk is minimal. It can only be totally avoided by his removal from Australia. But that removal would defeat the best interests of his four minor children, to the extent of either ending their, essentially lifetime, residence in Australia, or depriving of them of their father’s real, supportive and desired presence. Those alternative consequences for the children, in the light of the minimal risk of re-offending, lead me to the conclusion that the preferable decision is to set aside the cancellation decision.

I certify that the 89 preceding paragraphs are a true copy of the reasons for the decision herein of Mr P Taylor SC, Senior Member

Signed:         .........[sgd].........................
  Associate

Dates of Hearing  26 & 27 October 2011
Date of Decision  10 November 2011
Representative for the Applicant               Mr L Paeu (Self)
Solicitor for the Respondent  Mr W Sharpe, Sparke Helmore