Minister for Immigration and Citizenship v Taufahema

[2010] FCA 330

FEDERAL COURT OF AUSTRALIA

Minister for Immigration and Citizenship v Taufahema [2010] FCA 330

Citation:		Minister for Immigration and Citizenship v Taufahema [2010] FCA 330
Appeal from:		Taufahema and Minister for Immigration and Citizenship [2009] AATA 898
Parties:		MINISTER FOR IMMIGRATION AND CITIZENSHIP v MOTEKIAI TAUFAHEMA and ADMINISTRATIVE APPEALS TRIBUNAL
File number(s):		NSD 1471 of 2009
Judge:		BUCHANAN J
Date of judgment:		7 April 2010
Catchwords:		MIGRATION – first respondent failed to pass “character test” – consideration of cancellation of visa subject to Minister’s Direction – AAT decided not to cancel visa – alleged failure by AAT to sufficiently take into account “primary considerations” and “other considerations” provided in Minister’s Direction –– whether any jurisdictional error
Legislation:		Migration Act 1958 (Cth) ss 476A, 499, 500, 501
Cases cited:		Lafu v Minister for Immigration and Citizenship [2009] FCAFC 140; 112 ALD 1 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Minister for Immigration and Ethnic Affairs v Liang (1996) 185 CLR 259 R v Hunt; Ex parte Sean Investments Pty Ltd (1979) 180 CLR 322 Telstra Corporation Ltd v Australian Competition and Consumer Commission (2008) 176 FCR 153 Telstra Corporation Ltd v Australian Competition Tribunal (2009) 175 FCR 201
Date of hearing:	29 March 2010
Place:	Sydney
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	38
Counsel for the Applicant:	Mr G. Kennett
Solicitor for the Applicant:	DLA Phillips Fox
Counsel for the First Respondent:	Ms S. Mahmud

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1471 of 2009

BETWEEN: MINISTER FOR IMMIGRATION AND CITIZENSHIP
Applicant

AND:

MOTEKIAI TAUFAHEMA
First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent

JUDGE:	BUCHANAN J
DATE OF ORDER:	7 APRIL 2010
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application be dismissed with costs.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1471 of 2009

BETWEEN: MINISTER FOR IMMIGRATION AND CITIZENSHIP
Applicant

AND:

MOTEKIAI TAUFAHEMA
First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent

JUDGE:	BUCHANAN J
DATE:	7 APRIL 2010
PLACE:	SYDNEY

REASONS FOR JUDGMENT

BUCHANAN J:

1. The applicant (“the Minister”) seeks orders of certiorari and mandamus directed to the second respondent (“the AAT”) in respect of a decision made by the AAT on 23 November 2009.  In the context of the present case, the remedies which are sought by the Minister are available in the event that the AAT has failed to exercise its jurisdiction as required by law.

2. By its decision of 23 November 2009 the AAT set aside an earlier decision made by a delegate of the Minister to cancel the first respondent’s (“Mr Taufahema”) visa which permitted him to remain in Australia. The delegate’s decision was made under s 501(2) of the Migration Act 1958 (Cth) (“the Act”). The AAT was given jurisdiction to review the delegate’s decision by s 500 of the Act. Section 476A of the Act gives this Court jurisdiction in relation to jurisdictional errors made by the AAT in a decision under s 500 of the Act.

3. Mr Taufahema was the holder of a Class BF Transitional (Permanent) visa.  That visa granted him permanent resident status in Australia but he is not an Australian citizen.  He arrived in Australia at the age of 11 in 1988 having been born in Tonga in 1976.  From the age of 14 years old he has been convicted of a series of offences in Australia.  The offences were increasingly serious.  The last offence, for which he is serving a sentence of 11 years imprisonment which commenced on 27 March 2005, was for manslaughter in circumstances which led to the death of a police officer.

4. Section 501 of the Act permits the cancellation of a visa if a person is reasonably suspected of not passing the “character test” which is identified in s 501(6). One reason why a person might not pass the character test is if that person has a substantial criminal record, having been sentenced to a term of imprisonment of 12 months or more. On this basis, Mr Taufahema does not pass the character test.

5. Section 499 of the Act permits the Minister to give written directions to a person or body having functions or powers under the Act. The person or body must comply with such a direction (s 499(2A)). Consideration of whether Mr Taufahema’s visa should be cancelled was the subject of Minister’s Direction No 41 (“the Direction”) which was issued under s 499 of the Act on 3 June 2009. The Direction applied to the decision made by the delegate and applied to the review conducted by the AAT of the delegate’s decision. Clause 9 of the Direction required the delegate and the AAT to take into account a list of “primary considerations”. Certain “other considerations” were to be taken into account where relevant. Only directly relevant considerations were to be taken into account.

6. On 27 August 2009 a delegate of the Minister, applying the Direction, concluded on balance that Mr Taufahema’s visa should be cancelled.  Mr Taufahema applied to the AAT for a review of the delegate’s decision.  On 23 November 2009 the AAT concluded on balance that Mr Taufahema’s visa should not be cancelled and set aside the delegate’s decision.

7. By an amended application filed on 26 February 2010 the Minister contended that the AAT had failed to comply with two identified elements of the Direction, thereby acting contrary to the Act, and that for the same reasons had “failed to take into account a relevant consideration”. The two requirements which were said to have been not observed, and not taken into account, were clause 10.1(2) of the Direction and clauses 11(1) and (3)(g) of the Direction.

8. Clause 10.1(2) is a statement of matters relevant to one of the “primary considerations” listed in clause 10.  Clause 11(1) directs that certain “other considerations” be taken into account where relevant. Clause 11(3)(g) is one of the “other considerations” listed in clause 11.

9. In order to provide an appropriate context in which to consider the first challenge it is necessary to set out a number of other provisions which relate to the operation of clause 10.1(2).  I shall also include other “primary considerations” which were relevant in the present case.  Later I shall deal separately with clause 11(3)(g).

10. Clause 5 of the Direction sets out, in clause 5.1, some “Objectives”, including, in clause 5.1(2), the following:

    5.Preamble

    5.1Objectives

    …

    (2)In this regard, 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.

11. Clause 5 also provides “General Guidance” for decision-makers including, in clause 5.2(2) and (4):

    5.2General Guidance

    ...

    (2)In reaching a decision on whether to refuse or cancel a visa, a decision-maker needs to consider:

    (a)the nature of any harm that the person concerned may cause to the Australian community; and

    (b)       the risk of that harm occurring.

    …

    (4)In some circumstances it may be appropriate for the Australian community to accept more risk where the person concerned has, in effect, become part of the Australian community owing to their having spent their formative years, or a major portion of their life, in Australia.

12. Clause 9 provides:

    9.        Taking the relevant considerations in account

    (1)Consistent with Part 2, paragraph 2 (Part B) of this Direction, decision-makers must take into account the primary considerations in every case.  The other considerations (defined in paragraph 11) should be taken into account where relevant.

    (2)Decision-makers should only take into account directly relevant considerations.

    (Notes omitted)

13. Clause 10 then sets out the “primary considerations” to be taken into account.  So far as here relevant it provides:

    10.      The primary considerations

    (1)In deciding whether to refuse to grant a person a visa or cancel a person’s visa, the following (the primary considerations) are to be considered:

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

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

    (c)the length of time that the person has been ordinarily resident in Australia prior to engaging in criminal activity or other relevant conduct; and

    (d)relevant international obligations, including but not limited to:

    (i)the best interests of the child, as described in the Convention on the Rights of the Child (CROC); …

14. Specific further directions are then given about each of the primary considerations.  Clause 10.1 is addressed to the protection of the Australian community, as referred to in clause 10(1)(a) above, as follows:

    10.1Protection of the Australian community

    (1)Due consideration is to be given to the Government’s objectives set out in Part 1, paragraph 5 of this Direction.

    (2)The factors relevant to assessing the level of risk of harm to the community of the person’s entry or continued stay include:

    (a)the seriousness and nature of the relevant conduct; and

    (b)the risk that the conduct may be repeated.

    Note:  Both of these factors are discussed further below.

15. As the note to clause 10.1 indicates, further provisions (clause 10.1.1 and clause 10.1.2) discuss in greater detail the assessment of the level risk of harm to the community.  So far as here relevant clauses 10.1.1 and 10.1.2 provide:

    10.1.1  The seriousness and nature of the conduct

    (1)Crimes involving violence or the threat of violence are of special concern to the welfare and safety of the Australian community.  Those crimes involving violence, particularly against vulnerable persons (such as minors, the elderly and the disabled), are especially abhorrent to the whole community.

    (2)The following are examples of offences and conduct that are considered serious:

    (a)murder, manslaughter, or any other form of unlawful killing;

    (b)all offences perpetrated against a child (particularly sexually-based offences);

    (c)rape and any other sexually-based offences;

    (d)grievous bodily harm, reckless injury, assault and aggravated assault (including abduction);

    (e)robbery;

    (f)the production, possession, importation or trafficking of trafficable or commercial quantities of illicit drugs;

    (g)terrorist activity;

    (h)people smuggling, trafficking and/or harbouring or concealing;

    (i)ancillary offences in respect of offences and conduct that are considered serious, including:

    (i)convictions for attempting to commit an offence;

    (ii)convictions for conspiracy to commit an offence; and

    (iii)convictions for being an accessory before or after the fact in respect of an offence.

    (j)organised criminal activity resulting in a conviction in Australia or elsewhere;

    (k)arson;

    (l)blackmail and/or extortion; and

    (m)serious theft.

    (Notes omitted)

    (3)The sentence imposed for an offence is considered indicative of the seriousness of the offender’s conduct against the community.  Due regard must be given to the extent of the person’s criminal record, including:

    (i)the number and nature of offences;

    (ii)the period between offences; and

    (iii)the time elapsed since the most recent offence.

    (4)The following factors are also to be considered:

    (a)any relevant information, including, but not limited to, evidence from independent and authoritative sources in respect of the person such as judicial comments in an individual’s case, professional psychological reports, pre-sentence reports for the courts, parole assessments, victim impact statements and similar sources of authoritative information or assessment;

    (b)any relevant factors the person provides as mitigating factors;

    …

    10.1.2The risk that the conduct may be repeated

    (1)The person’s previous general conduct and total criminal history are to be considered highly relevant to assessing any risk of re-offending.

    (2)The following factors are to be considered as particularly relevant to this assessment:

    (a)a recent history of convictions, which should be considered as indicating an increased risk of re-offending;

    (b)evidence of the extent of rehabilitation already achieved and the prospect of further rehabilitation.  Greater weight should generally be given to evidence from independent and authoritative sources, such as judicial comments, professional psychological reports, pre-sentence reports for the courts, parole assessments, and similar sources of authoritative information or assessment; and

    (c)evidence that the person has breached judicial orders, including parole, bail, bonds, suspended sentences and any other relevant undertakings or conditions imposed by the courts.

16. In relation to the primary considerations earlier set out in clause 10(1)(b), (c) and (d)(i), further specific directions are given in clauses 10.2, 10.3, 10.4 and 10.4.1 but it is not necessary to set them out here.

17. Apart from the primary considerations stated by clause 10, there were a series of “other considerations” (which clause 11(1) directed be taken into account where relevant) although the Direction provided that “generally, they should be given less weight than that given to primary considerations” (clause 11(2)).  A number of those other considerations applied to Mr Taufahema.  Generally speaking, all except the final consideration (clause 11(3)(g)) relate to matters which, if established, would favour not cancelling the visa.  The exception is stated in clause 11(3)(g) as follows:

    (g)whether the person has been formally advised in the past by an officer of the Department of Immigration and Citizenship about conduct that brought the person within the deportation provisions of the Act (as in force at that time) or the character (visa refusal and cancellation) provisions of the Act (as in force at that time).

18. In its decision, the AAT dealt in some detail with Mr Taufahema’s criminal record, both by way of introduction and in its discussion of the requirements of the primary consideration stated in clause 10(1)(a) of the Direction.  The AAT acknowledged the binding force of the Direction.  It noted the statement in clause 10.1.1(1) that “[c]rimes involving violence or the threat of violence are of special concern to the welfare and safety of the Australian community”.  It referred to the particular offences in the list at clause 10.1.1(2) of relevance to Mr Taufahema and to other elements of clause 10.1.1, including the relevance of sentences imposed for an offence and judicial comments about a person when assessing the seriousness of conduct.  The sentences imposed on Mr Taufahema were identified.  Sentencing remarks from various judges were quoted.  The AAT observed that “there can be no question” about the seriousness of Mr Taufahema’s conduct.

19. The AAT then turned to an examination of the risk that Mr Taufahema’s criminal conduct might be repeated.  It referred again to his conviction of “a very significant number of criminal offences commencing at the age of 14, many of them involving violence and of a growing level of seriousness, culminating in his conviction for manslaughter and other offences in respect of which he is currently serving a prison sentence of 11 years with a non-parole period of seven years”.  It referred to a warning in August 1996 (relevant also to clause 11(3)(g)) that further re-offending would lead to the question of his deportation being (again) considered, which Mr Taufahema failed to heed.  It referred to other matters adverse to Mr Taufahema arising from his past conduct.

20. The AAT then referred to a submission by the Minister that there was, in Mr Taufahema’s case, a high and unacceptable risk of recidivism but, for reasons which were explained in detail, concluded that circumstances since the commencement of Mr Taufahema’s more recent prison sentence justified a more lenient view.  The AAT found:

    44.      I am satisfied on the above evidence that Mr Taufahema is motivated and has made a genuine effort to undertake rehabilitation with positive results in terms of reflecting on and controlling his behaviour and understanding the effect of his behaviour on others …  While previously, prison sentences have not deterred Mr Taufahema from re-offending, and while I acknowledge his rehabilitation remains untested, I am satisfied that there is a reduced risk of his re-offending.

21. However, those matters notwithstanding, the AAT found nevertheless that significant weight should be given to the primary consideration of the protection of the Australian community.  It said:

    45.In view of the 11-year period of criminality (1991 to 2002), the seriousness of the crimes of which Mr Taufahema has been convicted, and the risk of recidivism which, while reduced, is still untested, significant weight should be given to the primary consideration of the protection of the Australian community.

22. The written submissions for the Minister attacked this conclusion as a “bald statement” which made no “real attempt” to make the assessment required by clause 10.1(2) of the Direction.  In my view that criticism is unjustified.  The AAT’s consideration of these matters resulted in a conclusion against Mr Taufahema.  Even though the AAT accepted that the risk of recidivism and repeated conduct of the kind for which he had earlier been convicted was reduced since his most recent conviction, it accepted that his previous conduct was a matter of significant weight counting against the retention of his visa.  It was its consideration of further matters, about which no complaint was made by the Minister, which resulted in the decision that Mr Taufahema’s visa should not be cancelled.  It was suggested in argument that the AAT was bound to say how serious Mr Taufahema’s conduct was.  Despite the anticipatory denial in the Minister’s written submissions that this was a “semantic” point, in my view the argument gives insufficient credit to the detailed exposition by the AAT of Mr Taufahema’s earlier conduct, its consequences, the penalties for it and the observations of sentencing judges.  No submission was made that the AAT viewed Mr Taufahema’s conduct as not serious, or as less serious than the facts warranted.  Such a submission would not have been available upon a fair reading of the AAT’s decision.  I think this particular criticism was indeed, despite the Minister’s denial, a semantic one.  More importantly, it did not satisfactorily accommodate the whole of the AAT’s reasoning process and its final conclusions which involved balancing a series of factors of which Mr Taufahema’s past conduct was, serious though it was, only one such factor to be assessed.

23. After its initial discussion of Mr Taufahema’s conduct and the risk that it might be repeated the AAT turned to further primary considerations.  It disposed of two matters as not favouring the exercise of any discretion in Mr Taufahema’s favour.  It found that, although he had lived in Australia since the age of 11 and had close ties to the Australian community, the protection of the Australian community was of greater importance.  It also concluded that the length of his residence in Australia should not be treated as a consideration favourable to him.

1. The final primary consideration discussed was “the best interests of the child”, Mr Taufahema’s daughter, Taiya.  The AAT found, for reasons which were explained in detail and which have not been challenged, that Taiya’s best interests strongly favoured Mr Taufahema being allowed to remain in Australia.

2. The AAT then turned to “other considerations”.  It identified additional considerations relevant to Mr Taufahema.  Some favoured Mr Taufahema although they were clearly given much less weight than the primary considerations.  The other considerations identified as relevant included (as required by clause 11(3)(g)) whether Mr Taufahema had been formally warned in the past that his visa might be cancelled because of his criminal conduct.  This element was mentioned again in connection with a submission by the Minister that “the seriousness and ongoing nature of his conduct are such that the Australian community would expect to be protected against the likelihood of further violent criminal behaviour”.

3. The AAT’s overall conclusion and the reasons for it are, in my view, captured in the following paragraphs towards the end of the decision:

   68.      I have found this a difficult matter to decide.  Weighing up first the primary considerations, to which I am required to give greater weight, in my view, the primary consideration of the protection of the Australian community favours the cancellation of Mr Taufahema’s visa.  He has been convicted of serious offences involving violent conduct and in the course of the last incident in March 2002 a police officer was killed, although not directly by Mr Taufahema.  On the evidence before the Tribunal, there is, however, less risk of Mr Taufahema re-offending than in the past given the evidence which indicates that he has begun the process of rehabilitation.  I would therefore assess the risk of his re-offending as moderate at this stage given that his rehabilitation in the community is untested.  Significant weight should be given to this primary consideration, which favours the cancellation of Mr Taufahema’s visa.

   69.      In relation to the other primary considerations, the fact that Mr Taufahema was a minor when he commenced living in Australia is of relatively minor significance by comparison.  The length of time he has been ordinarily resident in Australia is a neutral consideration.

   70.      The best interests of Taiya are in my view, however, another primary consideration to which significant weight should be given.  As stated above, I am satisfied that there is a close and loving relationship between Taiya and her father, and that Taiya is likely to be devastated if he is deported to Tonga.  Taiya’s best interests strongly favour a decision that Mr Taufahema’s visa not be cancelled.

   71.      In relation to the other considerations to which I should have regard and which are relevant here, but to which I am required generally to give less weight than to primary considerations, I accept that Mr Taufahema’s return to Tonga will distress his family in Australia and cause hardship to them and to Mr Taufahema.  In Mr Taufahema’s case, this is, in particular, because of the separation from his daughter Taiya with whom, as I have said, he has a close and loving relationship.  I am also concerned about the effect that separation would have on his partner, Ms Langbien, noting the evidence as to her emotional dependence on him and ongoing treatment for depression.  In relation to Mr Taufahema’s parents and siblings, I note that he is the eldest child in the family and in Tongan culture will, as a result, assume responsibilities in relation to family decision-making and activities.  However, while, if he were returned to Tonga, I am satisfied that both he and his family would suffer hardship, I accept that he should have minimal language or cultural difficulties.

   72.      In relation to the expectations of the Australian community, I agree with the Minister that the seriousness of Mr Taufahema’s criminal conduct, especially his involvement in the March 2002 incident in which a police officer was killed, might lead the community to expect that his visa should be cancelled for the community’s protection.  However, this is not a straightforward case.  The community would also need to take into consideration the other relevant circumstances.  The best interests of his daughter Taiya strongly favour a decision that his visa not be cancelled, and Mr Taufahema’s family situation in Australia, in particular the interests of Ms Langbien, also favour such a decision.

4. The first criticism made of the AAT decision was that it did not combine the two factors identified in 10.1(2)(a) and (b) in an attempt to assess the level of risk of harm to the community even though, it was conceded, on the face of its reasons the AAT considered each of the nominated matters.

5. In my view the criticism is unjustified.  There can be no doubt, as was conceded by the Minister, that the AAT gave specific attention to each of the elements nominated by clause 10.1(2)(a) and (b).  Although it was argued that the AAT did not attempt to locate Mr Taufahema’s conduct “on any scale of seriousness”, it cannot be doubted that the AAT accepted that the offences of which Mr Taufahema was convicted were serious and favoured the cancellation of his visa.  There is no requirement in the Direction that the seriousness of conduct, or the risk of harm, be ranked on some theoretical scale.  Nor was it necessary in the present case that such an exercise be done to understand the approach taken by the AAT.

6. The AAT concluded, in the passage set out above, that the risk of Mr Taufahema re-offending was “moderate”.  That conclusion (which necessarily involved rejection of the Minister’s submission to the AAT that there was a high and unacceptable risk of recidivism) was relevant to an assessment of whether there were “unacceptable risks of harm” (clause 5.1(2)) and whether it was appropriate for the Australian community to accept the risk of him remaining in Australia, when all relevant factors were taken into account.

7. Equally, there can be no serious disagreement that the AAT gave attention to the risk that the conduct might be repeated, and did so bearing in mind the seriousness of the conduct itself.  The principal matter which tipped the balance in favour of not cancelling Mr Taufahema’s visa was that the best interests of his daughter, Taiya, strongly favoured him being allowed to remain in Australia.  That was, in accordance with the Direction, a primary consideration to be taken into account.  The Minister’s criticism amounts to a complaint, it appears to me, that the AAT did not reach a conclusion that the risk to the Australian community outweighed all other, countervailing, considerations.

8. The further complaint about the AAT’s treatment of “other considerations” was the contention that it did not attempt to assess the significance of the fact that Mr Taufahema had been warned in 1996 that further offending might result in his deportation. Again, in my view, the criticism is unjustified.  The AAT found, in terms, that Mr Taufahema had failed to heed a warning in August 1996 that further reoffending would lead to the question of his deportation being reconsidered.  It made this finding in the course of its assessment about the risk that his conduct might be repeated.  It was clearly taken into account in that assessment.  It was also expressly noted in the AAT’s discussion of “other considerations”.  I do not accept the submission that the AAT made no attempt to assess the significance of this issue.

9. The statutory direction in s 499(2A) of the Act, that the AAT comply with the Direction, had the result that it was bound to treat each of the matters which it was required to consider as a “fundamental element” (R v Hunt; Ex parte Sean Investments Pty Ltd (1979) 180 CLR 322 at 329), although generally, and subject to any effective direction, the weight to be given to particular considerations remains a matter for the decision-maker (Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 41). In Telstra Corporation Ltd v Australian Competition and Consumer Commission (2008) 176 FCR 153 Rares J expressed the view (at [110]) that the combined effect of these, and other, judicial statements was that a decision-maker was required to treat consideration of the factors, as opposed to the factors themselves, as a central element in the deliberative process. His Honour’s views were referred to by a Full Court in Telstra Corporation Ltd v Australian Competition Tribunal (2009) 175 FCR 201 at [267]. Counsel for the Minister submitted in the present case that the views expressed by Rares J were “cited approvingly”. For my own part I think the emphasis given by the Full Court was on the need to treat the relevant factors as central or fundamental elements in making the decision.

10. Whatever approach is to be preferred, in my view no criticism of the decision of the AAT is available by reference to this requirement.  It is clear that each of the relevant factors, and the need that they be considered in accordance with the significance placed upon them by the Direction, were at the forefront of the attention of the AAT.  The present proceedings provide no opportunity for a complaint about the weight given to particular factors, or the overall conclusion, unless the AAT misunderstood, or failed to perform, its statutory duty.

11. In general support of the arguments by the Minister that the AAT had failed in its duty to give proper attention to the matters about which complaint was made, I was referred to a recent decision of a Full Court in Lafu v Minister for Immigration and Citizenship [2009] FCAFC 140; 112 ALD 1. In the course of its reasons the Full Court at [48] referred to the observations of the High Court in Minister for Immigration and Ethnic Affairs v Liang (1996) 185 CLR 259 (at 272):

    48       … reasons of an administrative decision-maker are meant to inform and [are] not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.

12. The Full Court went on (at [49]):

    49       When the allowances called for by this passage are made, we remain of the view that the AAT’s reasons for decision fall on the wrong side of the line: they do not show an active intellectual engagement with the question how the factor or consideration of general deterrence was taken into account, and therefore whether it was taken into account at all, in the exercise of a discretion to cancel.  Mr Lafu would be left to guess what role, if any, the issue of general deterrence had played …

13. Later, the Full Court said (at [53] – [54]):

    53       …  In the present case the AAT did expressly refer to the issue of general deterrence in the statement of its reasons.  The problem is that [124]–[127] where the AAT did so, turn out, upon analysis, not to expose a consideration of the question of general deterrence as it relates to the facts of the present case at all.

    54       Notwithstanding her Honour’s careful analysis, our own careful analysis of the AAT’s reasons convinces us that so far as those reasons reveal, the AAT did not reach a conclusion in relation to whether and to what extent general deterrence was relevant to the circumstances of Mr Lafu’s case.  Apart from reciting the requirement that that factor be taken into account, the AAT’s reasons do not indicate whether the AAT was influenced, and if so by what process of reasoning, by the factor of general deterrence, in deciding that Mr Lafu’s visa was to be cancelled.  We conclude that the AAT did not give real consideration to the factor of general deterrence as it related to the individual circumstances of Mr Lafu’s case.

14. Applying the principles which underpin the reasoning in the passages from the Full Court decision to which I have referred, I am satisfied that in the present case the AAT did expose and explain the approach it took to the considerations to which its attention was required by the Direction.  Its discussion of those matters, I am satisfied, demonstrates that it did not fail in its duty in the ways suggested by the Minister’s argument.

15. The AAT indicated that it had found the matter a difficult one to decide.  The discussion of the competing primary considerations and of the other considerations was, in my view, lucid and balanced.  I see no substance in the contentions that the AAT failed to give attention, or proper attention, to the matters to which its attention was required by the Direction.  The Minister’s complaint on the present application appears to me to be based upon the suggestion that the AAT should have come, on balance, to a contrary conclusion to the one it reached on the question whether Mr Taufahema’s visa should be cancelled.  Any suggestion to that effect is insufficient to provide a foundation for the relief which was sought.  No question of jurisdictional error is involved.  The application will be dismissed with costs.

I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan.

Associate:

Dated:        7 April 2010