Minister's Discretion

 
 

On 23 December 2014 (2 days before Christmas), the then Minister for Immigration, Mr Morrison issued a new Ministerial Direction in relation to Character issues under s 499 of the Migration Act in light of the mandatory cancellation changes. It is ‘Direction no. 65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA’. These directions, of course, stay in force even though there is a change of Minister.

There are specific directions in relation to the mandatory cancellation power. Here are some extracts :

PART C

1. Primary considerations – revocation requests

(2) In deciding whether to revoke the mandatory cancellation of a non-citizen’s visa, the following are primary considerations:

  1. a) Protection of the Australian community from criminal or other serious conduct;
  2. b) The best interests of minor children in Australia;
  3. c) Expectations of the Australian community.

13.1 Protection of the Australian community

(2) Decision-makers should also give consideration to: 

  1. a) The nature and seriousness of the non-citizen’s conduct to date; and
  2. b) The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

13.1.1 The nature and seriousness of the conduct

(1) In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to factors including:

  1. a) The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
  2. b) The principle that crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
  3. c) The sentence imposed by the courts for a crime or crimes;
  4. d) The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
  5. e) The cumulative effect of repeated offending;
  6. f) Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
  7. g) Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour);
  8. h) Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act;

13.1.2 The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct

(1) In considering whether the non-citizen represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.

(2) In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:

  1. a) The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
  2. b) The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).

13.2 Best interests of minor children in Australia affected by the decision

(1) Decision-makers must make a determination about whether revocation is, or is not, in the best interests of the child.

(2) This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to revoke or not revoke the mandatory cancellation decision is expected to be made.

(3) If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.

(4) In considering the best interests of the child, the following factors must be considered where relevant:

  1. a) The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
  2. b) The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
  3. c) The impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
  4. d) The likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
  5. e) Whether there are other persons who already fulfil a parental role in relation to the child;
  6. f) Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
  7. g) Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and
  8. h) Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.

13.3 Expectations of the Australian community

(1) The Australian community expects non-citizens to obey Australian laws while in Australia.  Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person.  Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa.  Decision-makers should have due regard to the Government’s views in this respect.

The direction must be read in full and would form a guide as to how submissions in relation to a person would be structured. Each relevant portion of the direction would have to be addressed in the submissions.

The legal force of a ministerial direction is discussed below when looking at the general power to cancel visas.

There is a residual question as to what is the legal effect of this ministerial direction. This was discussed in detail in Williams v Minister for Immigration and Border Protection [2014] FCA 674; (2014) 226 FCR 112; 64 AAR 52; 142 ALD 76.

Mortimer J pointed out that the direction was a guide as per paragraph 6.4:

6.4 The purpose of this Direction is to guide decision-makers performing functions or exercising powers under section 501 of the Act

There are a series of cases in relation to an earlier direction which identified that the then direction cannot fetter the discretion of the decision maker found in the Migration Act.

For example, Dowsett J, in Aksu v MIMA [2001] FCA 514 (4/5/2001), ruled that then ministerial direction on character under s. 499 of the Migration Act was unlawful.

The Minister exercised the power to cancel the visa personally and in doing so endorsed a briefing paper given to him.  The briefing paper stated that the decision maker was bound by the direction, although failed to point out that the direction could not bind the minister himself.  Dowsett J ultimately concluded:

The Minister’s adoption of the briefing paper implies his adoption of the “binding” nature of the Direction as to weight. It was submitted that he should be taken to have known that he could depart from the Direction should he so choose and to be aware of his own powers. However if that were so, and if he had turned his mind to the matter, one would think that he would have perceived the need to make it clear in his reasons that he did not consider himself to be so bound. He would not then have adopted the briefing paper. It is an inescapable conclusion of his adoption of it that he proceeded in accordance with it. This must inevitably have included acceptance of the allegedly “binding” nature of the Direction. It follows that he has inappropriately fettered his discretion by assuming that each primary consideration bore at least as much weight as each other consideration, regardless of the facts of the case. In my view this fettering of the discretion constituted an error of law

The facts of the case were that the applicant was educated in Australia, could not speak Turkish, had family obligations to his sister, had no contacts in Turkey but had committed crimes in Australia including for drugs and of dishonesty.

Aksu was followed by Cooper J in Ruhl v MIMA [2001] FCA 648 (1 June 2001). On various drug offences, the applicant was sentenced to 4 years prison on each count, served concurrently with a recommendation that the applicant be considered for parole after 9 months. In recommending early parole the sentencing judge took into account the applicant had no previous drug convictions, had made a timely plea of guilty & had assisted the authorities. Cooper J concluded:

….as appears from the decision record & the Minister’s correspondence, the Minister has not merely chosen to place more weight upon the primary considerations than upon the other matters having regard to the facts of the case. He has accorded pre-eminence to the primary considerations and denied the possibility that the other matters particular to the circumstances of the applicant were entitled to greater importance than a primary consideration in the exercise of an unfettered discretion under s 501 of the Act. He has adopted this course because he applied the policy contained in Direction No 17 which directed such an approach to the exercise of the discretion. In my view, the fettering of the discretion constituted an error of law….The personal circumstances of the applicant, including his assistance to the authorities if not taken into account as a separate head of public interest required to be considered under s 501 as contended for by the applicant, as disclosed in the materials constituting the decision record are such that the error of law could have effected the outcome of the case. That is sufficient reason to order that the decision be set aside.

  1. 499(2) states:

(2)      Subsection (1) does not empower the Minister to give directions that would be inconsistent with this Act or the regulations.

It is pointed out that s 501 gives a decision maker broad discretions.

The current direction also states:

  1. 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-citizens holding 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 a visa 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.

Hence any direction under s 499 must leave a decision maker free to take into account broad matters and cannot fetter the approach a decision maker may take.  Coming back to what Mortimer J said in Williams, the direction is a ‘guide’ and decision makers must still exercise the discretions found in s 501 of the Act.

Barbara DavidsonMinister's Discretion