The Weight of Expectations: Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2
8.4.2024
In Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2, a five-judge bench of the High Court sitting in its original jurisdiction considered the construction, validity, and operation of Direction 90, a written direction given by the Minister to guide decision‑makers in exercising powers under s 501 of the Migration Act 1958 (Cth) (the Act).
This post focuses on two aspects of the High Court’s unanimous judgment that will have broader ramifications for decisions to refuse or cancel visas on character grounds:
the Court’s conclusion that the impugned decision was not affected by repetitious weighing of the same issues, and that Direction 90 was not invalid because it permitted repetitious weighing; and
the Court’s reasoning in respect of whether the Minister’s delegate considered what weight to give the expectations of the Australian community in light of the plaintiff’s personal circumstances.
Background
The plaintiff in Ismail had lived in Australia for over a decade. He travelled to Lebanon to visit his uncle who was suffering from cancer. His uncle died within a few days of his arrival. Because the plaintiff’s Partner Visa ceased the day he departed Australia, it was necessary for him to apply for a Resident Return (subclass 155) visa. His visa was refused by a delegate of the Minister under s 501(1) of the Act, which confers a power to refuse to grant a visa if the visa applicant does not satisfy the Minister they pass the ‘character test’ as defined in the Act.
In Ismail there was no dispute that the plaintiff did not pass the ‘character test’. While in Australia, he had been convicted of driving while disqualified and domestic violence (which constituted ‘family violence’ for the purposes of Direction 90). The question facing the delegate was whether the discretionary power to refuse to grant the visa application ought to be exercised. In deciding that question, the delegate was required to consider the principles and considerations enumerated in Direction 90.
Direction 90
In deciding whether to refuse a visa on character grounds under s 501(1), as occurred in Ismail, decision-makers must address the considerations prescribed by the Direction and weigh them in the balance. These considerations are divided into ‘primary considerations’ and ‘other considerations’. Primary considerations are generally given greater weight than the other considerations, although that is not always the case.
The arguments in Ismail focused upon three ‘primary considerations’ under Direction 90:
the protection of the Australian community from criminal or other serious conduct (paragraph 8.1) (the ‘community protection consideration’);
whether the conduct engaged in constituted family violence (paragraph 8.2) (the ‘family violence consideration’); and
the expectations of the Australian community (paragraph 8.4) (the ‘community expectations consideration’.
Direction 90 details particular factors that ought to be taken into account in respect of each consideration.
In assessing the ‘community protection consideration’, paragraph 8.1 of the Direction requires decision-makers to consider the nature and seriousness of the non-citizen’s conduct, and the risk to the Australian community should they commit further offences or engage in other serious conduct.
In assessing the ‘family violence consideration’, paragraph 8.2 stipulates that the Government has serious concerns about non-citizens who engage in family violence entering or remaining in Australia, and that such concerns are proportionate to the seriousness of the family violence concerned.
In assessing the ‘community expectations consideration’, paragraph 8.4 specifies that the Australian community expects non-citizens to obey the laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia. Paragraph 8.4(3) further instructs that decision-makers should not independently assess the community's expectations, and should proceed on the basis of the Government's views as articulated in this part of the Direction.
The delegate’s decision
In refusing the plaintiff’s visa application, the delegate considered the ‘community protection consideration’ under paragraph 8.1 of Direction 90, and stated that acts of family violence ‘are viewed very seriously by the Australian Government and the Australian community’. Accordingly, the delegate found the plaintiff engaging in acts of family violence would be viewed as ‘very serious’. The delegate also considered the ‘family violence consideration’ under paragraph 8.2 of Direction 90. In this context, the delegate reiterated family violence should be regarded as ‘serious’ and attributed significant weight to this consideration in favour of refusing the plaintiff’s visa application.
The delegate also considered the ‘community expectations consideration’ under paragraph 8.4 of the Direction. The delegate referred to the expectation that the Australian Government can and should refuse a visa to people who had engaged in family violence. The delegate concluded that this consideration should be given ‘significant weight’ in favour of refusing the plaintiff's visa application.
Having regard to those factors which weighed for and against refusal, the delegate refused the plaintiff’s visa application.
Double counting
Before the High Court, the plaintiff alleged that the delegate had ‘double counted’ various factors against him. This allegation was made in several ways.
The plaintiff contended that the delegate had engaged in repetitious weighing by giving weight to his acts of family violence under the ‘family violence consideration’ after weight was already given to the same family violence in an identical way under both the ‘community protection consideration’ and the ‘community expectations consideration’. This argument drew parallels with the common law rule against double punishment in criminal sentencing (reflected in s 4C of the Crimes Act 1914 (Cth)).
The plaintiff argued that repetitious weighing (or ‘double counting’) was not permitted by Direction 90. Rather than reading the Direction as permitting such reasoning, the plaintiff contended that the Direction required decision-makers to avoid repetitious weighing by moderating the weight to be given to family violence under the different considerations. In the alternative, the plaintiff argued that in so far as paragraph 8.2 of the Direction permitted repetitious weighing, it was invalid – in that its operation would be irrational, illogical, and legally unreasonable, or that it would impose an illegitimate fetter on the decision‑maker’s discretion.
In rejecting these arguments, the High Court firstly found paragraph 8.2 of the Direction was not invalid: at [41]. In reasoning to this conclusion, the High Court explained there were differences between paragraphs 8.1, 8.2, and 8.4. The Court identified that paragraph 8.2 involves a separate field of operation from the other considerations, confirming that family violence is of serious concern to the Australian Government and ensuring that decision-makers do not have to guess the views of the Australian Government about family violence: at [39].
The High Court also did not accept that the delegate had, in fact, engaged in repetitious weighing when refusing the plaintiff’s visa application. Weighing the relevance of the same acts of family violence in different (albeit overlapping) contexts was not ‘repetitious weighing’ or ‘double counting’ in any illegitimate sense: at [42]. The Court deprecated the use of descriptions such as ‘repetitious weighing’ or ‘double counting’ because these shorthand phrases are “apt to mislead” (at [42]) and confirmed the same facts may overlap and be relevant to multiple different considerations: at [44].
The High Court referred to the Full Federal Court’s judgment in Jama v Minister for Immigration, Citizenship and Multicultural Affairs, where the description ‘double counting’ was used. In Jama, the Tribunal used its findings in respect of the ‘community protection consideration’ to reduce the weight ascribed to another consideration under the Direction: the strength, nature and duration of the non-citizen’s ties to Australia. The Tribunal determined the weight of the latter consideration with reference to the weight it had given to a separate consideration, as opposed to evaluating each relevant consideration under the Direction and only then weighing the considerations against each other and other relevant matters. In Jama, the Full Court found that the Tribunal had erred by using the ‘seriousness of offending’ criterion to reduce the weight given to the ‘strength of ties’ criterion. Consequently, there is a difference between the species of ‘double counting’ alleged in Ismail and that which was found the have tainted the Tribunal’s decision in Jama.
Expectations of the Australian community
The plaintiff also argued the Minister’s delegate had failed to consider his personal circumstances in deciding what weight to give the deemed adverse factor of the community expectations consideration.
Similar arguments had been accepted by the Federal Court in cases such as Kelly v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (which was approved by the Full Court in DBWG v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs shortly before Ismail was handed down) and Ali v Minister for Immigration, Citizenship and Multicultural Affairs. These cases established that while the community expectations consideration would always weigh against the non-citizen, a decision-maker could err if they did not consider representations based upon the non-citizen’s personal circumstances when deciding how much weight to afford the consideration.
In Kelly, Beach J held that it was incumbent upon the Minister to give active intellectual consideration to the specific circumstances of the applicant and reasoned at [109]:
…a reasonable Minister responding to the applicant’s representations urging the Minister to have regard to all the evidence in assessing the “expectations of the Australian community” would not respond simply by saying that the Direction “is not about what the community may expect in relation to the particular noncitizen having regard to their specific circumstances”. Rather, a reasonable Minister would have regard to the applicant’s circumstances at least in assessing what weight to give the deemed expectations. It seems to me that that did not occur.
Similarly, in Ali, Bromberg J held that by reasoning that the applicant’s personal circumstances were not at all relevant to the community expectations consideration, ‘the Minister failed to properly consider the representations made’: at [93].
In considering an analogous argument in Ismail, the High Court firstly rejected the plaintiff’s arguments on the facts, finding that ‘[i]f the delegate was required to weigh the plaintiff's personal circumstances in deciding what ultimate weight to give to the expectations of the Australian community, no inference can be drawn that the delegate did not do so’: at [50]. While the word ‘if’ potentially preserves the possibility that a decision-maker should consider the plaintiff's personal circumstances in relation to this consideration, subsequent reasoning appears to snuff out that possibility.
The High Court explained that the Direction does not stipulate that, in assessing what weight is to be given to the expectations of the Australian community, the decision‑maker must attribute knowledge of the visa applicant’s personal circumstances to the community. Rather, paragraph 8.4(4) is to be understood as directing decision‑makers not to attempt to infer what the expectations of the Australian community would be with the knowledge of the applicant's personal circumstances. Decision‑makers should proceed on the basis that the views of the Australian Government set out in in the Direction reflect the expectations of the Australian community: at [51]-[52].
Such reasoning ostensibly overrules both Ali and Kelly, although there are potential points of distinction between those cases and Ismail. For instance, the errors in Ali and Kelly concerned a failure to consider representations as to whether there was ‘another reason’ to revoke a mandatory cancellation decision under s 501CA(4), which provides former visa-holders with an opportunity to make representations as to why the visa cancellation should be revoked.
Notwithstanding the fact that the decision in Ismail concerned the exercise of the power under s 501(1) as opposed to s 501CA(4) of the Act, it is difficult to foresee a scenario where the kinds of error enumerated in Kelly and Ali could be found to be material following Ismail. The ‘reasonable Minister’ who ‘would have regard to the applicant’s circumstances at least in assessing what weight to give the deemed expectations’, as postulated in Kelly, has been displaced by the High Court’s confirmation that the assessment of the expectations of the Australian community does not require knowledge of the applicant’s personal circumstances. The logical consequence of this position is that any argument that the weight to be given to the community expectations consideration should be modified on account of a visa applicant’s personal circumstances is contrary to what the Direction strictly requires.
This aspect of the High Court’s judgment raises an ancillary issue. Can a decision-maker opt to consider a visa applicant’s personal circumstances in respect of the community expectations consideration, even if the Direction does not require that they do so? Given the High Court’s confirmation that the Australian community is not to be ascribed with knowledge of the non-citizen’s personal circumstances (at [52]), it would likely be an error for a decision-maker to undertake such an ‘independent’ assessment in assessing this consideration. An argument that the Direction did not forbid a decision-maker from having giving weight to its own assessment of community expectations ‘outside the prism of paragraph 8.4' – ie, as an ‘other consideration’ in the exercise of the decision-maker’s discretionary power – was doubted in Minister for Immigration, Citizenship and Multicultural Affairs v HSRN. Although the Full Court articulated these doubts in the context of obiter remarks, the argument is likely extinguished by Ismail.
Conclusion
Ismail establishes that the separate consideration of family violence in relation to each of paragraphs 8.1, 8.2 and 8.4 of the Direction does not represent unlawful ‘double counting’. The High Court acknowledged that the resolution of a so-called ‘double counting’ argument will depend on the specific reasons: at [44]. Given the differences between the double counting arguments in Ismail and Jama, a double counting error of the kind enumerated in the latter case may still be upheld following Ismail, albeit phrases such as ‘repetitious weighing’ or ‘double counting' should be avoided. Rather than perpetuating the now taboo shorthand expressions, a double counting error could be formulated as a ground of review contending a decision-maker misconstrued or misapplied the relevant Direction.
The High Court also confirmed that the assessment of the expectations of the Australian community does not require consideration of non-citizens’ personal circumstances. Following Ismail, it would seem that the nature of the offending is also determinative of the weight ascribed to this consideration. However, delineating someone’s personal circumstances from their criminal offending is often nebulous; take for example a scenario that arose in a case the author was briefed in, involving a cognitively-impaired non-citizen whose visa was cancelled due to offending that occurred when they were an in-patient at a mental health facility. Such cases highlight how difficult it can be to separate personal circumstances from actual offending, and give force to Beach J’s reasoning in Kelly that ‘a reasonable Minister would have regard to the applicant’s circumstances at least in assessing what weight to give the deemed expectations’. While Ismail clarifies the content of the ‘community expectations consideration’ the question of how this consideration ought to be weighed is hazier.
Chris Honnery is a barrister who practices in administrative law and migration matters.
Suggested citation: Chris Honnery, ‘The Weight of Expectations: Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2’ (8 April 2024) <https://www.auspublaw.org/blog/2024/4/the-weight-of-expectations-ismail-v-minister-for-immigration-citizenship-and-multicultural-affairs-2024-hca-2/>