Interpreting Direction No 65

The Applicant's visa was mandatorily cancelled on character grounds pursuant s 501(3A) of the Migration Act 1958 (Cth).

A delegate of the Minister invited the Applicant pursuant to s 501CA(3) to make representations seeking revocation of the cancellation of his visa, which he did.

As the Applicant did not satisfy the character test, the question to the delegate under s 501CA(4) was whether there was "another reason" why the cancellation should be revoked.

The delegate refused to revoke the cancellation of his visa and the Applicant then applied to the Tribunal (AAT) for merits review of the non-revocation decision.

The Tribunal was bound by s 499(2) of the Act to comply with Direction No 65, which the Federal Court (FCA) summarised as follows (underlining added in this article):

16 Section 2 of Direction 65 is headed "Exercising the discretion". Section 2 comprises cl 7 and cl 8 which provide:

7. How to exercise the discretion

(1) Informed by the principles in paragraph 6.3 above, a decision-maker:

(a) must take into account the considerations in Part A or Part B, where relevant, in order to determine whether a non-citizen will forfeit the privilege of being granted, or of continuing to hold, a visa; or

(b) must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen's visa will be revoked.

8. Taking the relevant considerations into account

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

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

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

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

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

17 Direction 65 is then divided into Parts A, B and C. Part C is the part which "[i]dentifies the considerations relevant to former visa holders in determining whether to exercise the discretion to revoke the mandatory cancellation of a non-citizen's visa": cl 5.

18 Part C of Direction 65 contains three "primary considerations" (identified in cl 13(2)):

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

b)  The best interests of minor children in Australia;

c)  Expectations of the Australian community.

19 These considerations are further explained in cll 13.1 to 13.3.

20 Part C of Direction 65 contains five "other considerations" (identified in cl 14(1)):

a) International non-refoulement obligations;

b) Strength, nature and duration of ties;

c) Impact on Australian business interests;

d) Impact on victims;

e) Extent of impediments if removed.

54 At T[67], the Tribunal set out the terms of cl 14.2(1):

14.2 Strength, nature and duration of ties

(1) The strength, nature and duration of ties to Australia. Reflecting the principles at 6.3, decision-makers must have regard to:

(a) How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:

(i) less weight should be given where the non-citizen began offending soon after arriving in Australia; and

(ii) more weight should be given to time the non-citizen has spent contributing positively to the Australian community.

(b) The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non-citizen's immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).

The Tribunal affirmed the non-revocation decision and its reasons included the following passages (underlining added in this article):

14. Paragraph 8 of the Direction requires the decision-maker to take into account the primary and other considerations relevant to the individual case. Primary considerations should generally be given greater weight than the other considerations, and one or more primary considerations may outweigh the other primary considerations. In applying the considerations, information and evidence from independent and authoritative sources should be given greater weight.

...

36. [The Tribunal extracted in full a formal warning issued to the Applicant by the Department as follows:] Please note that visa cancellation may be reconsidered if you commit further offences or otherwise breach the character test in future. Disregard of this warning will weigh heavily against you if your case is reconsidered.

...

39. Considering the relevant factors set out in paragraph 13.1.1 of the Direction, I find that:

• …The applicant received a written warning from the Department in 2012 that any further offending would result in the cancellation of his visa.

...

63. There is no question the Australian community would have extensive empathy for the applicant due to the significant length of time he has lived in Australia and his substantial extended family in Australia, including children, with whom he has close relationships. However, this must be weighed against the applicant's behaviour of committing serious and violent offences over a period of 30 years and his continued disregard for the Australian law and judicial system after he was warned in 2012 that his behaviour would result in the cancellation of his visa.

...

68. The applicant has lived in Australia for nearly 47 years. He arrived as a baby with his parents and has never returned to the United Kingdom. The applicant has demonstrated extensive family ties to Australia through his aunts and uncles, cousins, siblings and step-siblings, children, grandchildren, partner and step-children. He views Australia as "home".

69. However, I must place less weight on this consideration because of the limited positive contribution to the Australian community over the past 30 years.

70. I am satisfied that the applicant has strong family and social ties to Australia. I find consideration of the applicant's ties to Australia weighs strongly in his favour.

...

74. The first and third primary considerations weigh heavily against the revocation of thecancellation decision. The second primary consideration weighs for the applicant but, for the reasons set out in paragraph 54 above, I place minimal weight on this consideration.

75. In regard to the other considerations, I find both the applicant's ties to Australia and theimpediments to his removal from Australia weigh for revoking the cancellation of the applicant's visa.

76. Noting the requirement that primary considerations should be given greater weight than the other considerations, I am satisfied on balance of the primary and other considerations that it is not appropriate to revoke the decision to cancel the applicant's visa.

The questions to the FCA were as follows:

Question 1: Can the underlined part of the text at [76] of the Tribunal's reasons be characterised as involving "no more than loose language" in referring to the test under cl 8(4), given that the Tribunal correctly set out that test at [14]? Or was the Tribunal merely copying and pasting cl 8(4) into [14], thus demonstrating the Tribunal's erroneous understanding of cl 8(4)?

Question 2: Can it be said that the "Tribunal thought that [cl 14.2(1)(a)(ii)] required it to give less weight to how long a non-citizen had resided in Australia if there had been limited positive contribution to the Australian community", when in reality that clause "did not require a decrease in the weight to be given to the length of residence where a positive contribution was limited or absent"?

If the answer to Question 2 is "yes"

Question 3: Was the Tribunal's error in misinterpreting cl 14.2(1)(a)(ii) material and thus jurisdictional?

Question 4: Is materiality a binary or balancing test?

Question 5: Should the FCA infer from the Tribunal's recitation of cl 14.2(1)(b) in its reasons that it considered the Applicant's claim related to that clause, despite the fact that those reasons do not contain an express finding about those claims?

Question 6: Was there "no evidentiary basis in the formal warning letter [from the Department] or otherwise for a conclusion that the committing of further offences by the applicant "would" result in the cancellation of his visa as the Tribunal had concluded"?

Question 7: If the answer to Question 6 is that there was "no evidentiary basis", was the "quality or nature of the warning – assuming the Tribunal to have misunderstood it ... – ... sufficiently central or critical for an error with respect to it to amount to jurisdictional error"?

The FCA answered those questions as follows: