The ‘Interests of Australia’ include the micro interests of Australia!

By Lorenzo Boccabella, Barrister-at-law, specialist in migration law (24 Jan 2024)

By Lorenzo Boccabella, Barrister-at-law Specialist in migration law

In migration law, what is sometimes forgotten is that the ‘interests of Australia’ include the micro interests of Australia.

Sometimes both primary decision makers and AAT members consider that the ‘interests of Australia’ are confined to broad areas of concern, like the defence of Australia or the alleviation of drought or the overall protection to the community from crime.

But the issue of the ‘interests of Australia’ trickle down to the effect of decision making on individuals as aptly pointed by Sir Gerard Brennan when he was President of the Administrative Appeals Tribunal in Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 634, [1979] AATA 179. He stated:

The limits of relevancy can scarcely be defined in advance of particular cases, and factors which are of central importance in one case may be of marginal importance in another. The range of relevant factors cannot be confined by defining Australia's interests in terms of the interests of the community, excluding the applicant and others affected by a deportation order. Australia's interests extend to an interest in them, for a nation's interests are involved when its government exercises coercive powers to affect individuals. Australia's interests are affected by the way in which the deportation power is exercised - by the criteria and procedures which are adopted in making deportation decisions, as well as by the safeguarding of the community which deportation of a particular offender may provide: the former factors affect the liberty of Australian society, the latter its protection. Thus Smithers J observed in Re Chan and Minister for Immigration and Ethnic Affairs ((1978) 1 ALD 55 at p 56; (1977) 17 ALR 432 at p 434):

" The expression 'the best interests of Australia leaves much open to judgment. It is my view that in the application of policy as stated that expression is to be understood not in a narrow and restricted sense, but as extending to such interests broadly regarded, and embracing, on occasion and according to circumstances, the taking of decisions by reference to a liberal outlook appropriate to a free and confident nation.”

The comments above by Sir Gerard Brennan who was then sitting as a Presidential member of the AAT (Sir Gerard was later the Chief Justice of the Australian High Court and is one of Australia’s leading jurists in administrative law) in effect are that the interests of Australia include the micro interests of Australia and include the interests of the family subject of the pending decision about a visa.

The wisdom and reasoning in ‘Drake’ stand the test of time.

Of course, Drake was one of the early cases which established that the role of the tribunal was to make the ‘correct or preferable’ decision and that the tribunal was not shackled by policy. Brennan P stated:

“The Tribunal's function, when it undertakes a review of a Minister's decision to deport, is to form its own judgment of what is the correct or preferable decision in the circumstances of the particular case as revealed in the material before the Tribunal (Drake's case, supra, at p 589). It is a discretionary judgment, for s 12 confers a discretionary power, and Ministerial policy may play a part in it. In Drake's case, Bowen C J and Deane J left it to the Tribunal to determine the part which Ministerial policy should play, saying (supra, at p. 590):

“It is not desirable to attempt to frame any general statement of the precise part which government policy should ordinarily play in the determinations of the Tribunal. That is a matter for the Tribunal itself to determine in the context of the particular case and in the light of the need for compromise, in the interests of good government, between, on the one hand, the desirability of consistency in the treatment of citizens under the law and, on the other hand, the ideal of justice in the individual case.”

It follows from the use of the term correct or preferable decision that there may be more than one ‘correct’ decision but in the circumstances of a particular case the function of the tribunal to determine which is the ‘preferable’ decision.

This Saturday at out full day 10 CPD point session conducted this Saturday 27 January 2024 at the Southport Yacht Club and simulcast as a webinar is a Master Class on merit review before the AAT.

It is not too late to register, I look forward to seeing you there.

Lorenzo BoccabellaJanuary 24, 2024