FEDERAL COURT OF AUSTRALIA Aksu v Minister for Immigration & Multicultural Affairs [2001] FCA 514 IMMIGRATION- cancellation of visa – exercise of discretion pursuant to section 501 of the Migration Act 1958 (Cth) – Ministerial Direction – appropriateness of policy directions concerning the exercise of statutory discretion – weighing process required as between primary considerations and other considerations – fettering discretion – whether Direction fettered decision-maker's discretion – whether Minister treated himself as bound by the Direction Migration Act 1958 (Cth) ss 200, 201, 476, 476(1)(e), 499, 501, 501(2), 501(6), 501(7) Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 considered Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 considered Minister for Immigration v Gray (1994) 50 FCR 189 considered Bustescu v Minister for Immigration and Multicultural Affairs [1999] FCA 1713 considered Lau v Minister for Immigration and Multicultural Affairs [2000] FCA 698 considered TURGAY AKSU v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Q 148 OF 2000 DOWSETT J 4 MAY 2001 BRISBANE IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY Q 148 OF 2000 BETWEEN: TURGAY AKSU APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: DOWSETT J DATE OF ORDER: 4 MAY 2001 WHERE MADE: BRISBANE THE COURT ORDERS THAT: 1. The Minister's decision be set aside 2. The matter be returned to the Minister for further consideration. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY Q 148 OF 2000 BETWEEN: TURGAY AKSU APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: DOWSETT J DATE: 4 MAY 2001 PLACE: BRISBANE REASONS FOR JUDGMENT 1 The applicant was born in 1964 in Turkey. He arrived in this country with his family in 1971. He claims that his father was involved with the Turkish communist movement and that they fled from Turkey as a result of violence being offered to members of that movement. It was suggested in the course of the hearing that the applicant has made, or intends to make application for a protection visa upon the basis that he would still be at risk if he returned to Turkey. This seems relatively unlikely. 2 The applicant was educated in Australia, leaving in year 9 when his mother died. He is the youngest of nine children although his affidavit is a little equivocal in this regard. He became involved with drugs, which involvement led to crime. I will refer to his criminal record at a later stage. In 1995 he moved to the Gold Coast, allegedly "to give myself a better lifestyle and try to distance myself from the poor influences and friends I was being around." There, he lived with his sister, her husband and family, including three children. Within a short time, he returned to crime. On 23 October 1999 his sister's husband died. They had been very close. His sister is also very ill. He feels that her children now look to him as a father figure. During his most recent period of imprisonment he undertook numerous courses designed to equip himself for life outside of prison. He claims to be anxious to look after his sister and her children. All of his family is in Australia. He has no contacts in Turkey. He also has no knowledge of the culture or of financial aspects of the country. He cannot speak Turkish. His father is sixty-eight years of age. He is not well enough to travel. The applicant fears that he may die shortly. In any event, he could not return to Turkey because of his communist involvement. The applicant says that if deported to Turkey he will immediately be called up for military service. He claims that he believed that he had become an Australian citizen by virtue of his father's having done so. That is not the case. 3 His criminal record appears at AB 18 - 26. In 1982 he was dealt with for offences of dishonesty. In 1986 he was sentenced to imprisonment for three years and six months for armed robbery. In 1987 he was convicted of a drug-related offence. In 1988 he was convicted of larceny as a servant and in 1990, of various drug-related offences. In 1992 he was again convicted of a number of drug-related offences. In 1998 he was convicted of numerous offences of dishonesty, including stealing with threats of actual violence. These offences appear to have been committed in 1996 and 1997. He was also convicted of being in a dwelling house with intent and drug-related offences. He was sentenced to suspended sentences of imprisonment. In 2000 he was convicted of numerous drug-related offences, possession of a knife and breaches of the "suspended sentence" orders. He was also sentenced for the 1998 offences (in respect of which sentences had been suspended). In total, he was to serve a period of one year, one month and twenty-seven days (AB 37). On 7 September 2000 he was informed that the respondent intended to consider whether there were grounds to cancel his visa pursuant to s 501 of the Migration Act 1958 (Cth) (the "Act"). On 12 October 2000 the Minister did so. The applicant therefore became liable to deportation. This is an application for review of the decision to cancel his visa. 4 Of major importance is Direction no 17 issued by the Minister. It is exhibited to the affidavit of Rhonda Beverley Garner filed on 2 March 2001. The Direction purports to provide guidance to decision-makers in making decisions to refuse or cancel a visa under section 501 of the Act. Subsection 501(2) provides: The Minister may cancel a visa that has been granted to a person if: (a) the Minister reasonably suspects that the person does not pass the character test; and (b) the person does not satisfy the Minister that the person passes the character test. 5 When this matter first came on before me, the applicant's residential status was by no means clear. I was told that he may have, held a "deemed" visa as a result of having entered the country lawfully and not subsequently taken out citizenship. The matter has proceeded upon the basis that there is a visa to cancel pursuant to s 501. 6 Subsection 501(6) provides: For the purposes of this section, a person does not pass the character test if: (a) the person has a substantial criminal record (as defined by subsection (7)); or (b) the person has or has had an association with someone else, or with a group of organisation, whom the Minister reasonably suspects has been or is involved in criminal conduct; or (c) having regard to either or both of the following: (i) the person's past and present criminal conduct; (ii) the person's past and present general conduct; the person is not of good character; or (d) in the event the person were allowed to enter or to remain in Australia, there is a significant risk that the person would: (i) engage in criminal conduct in Australia; or (ii) harass, molest, intimidate or stalk another person in Australia; (iii) vilify a segment of the Australian community; or (iv) incite discord in the Australian community or in a segment of that community; or (v) represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm so, that community or segment, or in any other way. Otherwise, the person passes the character test. 7 Subsection 501(7) provides as follows: For the purposes of the character test, a person has a substantial criminal record if: (a) the person has been sentenced to death; or (b) the person has been sentenced to imprisonment for life; or (c) the person has been sentenced to a term of imprisonment of 12 months or more; or (d) the person has been sentenced to 2 or more terms of imprisonment (whether on one or more occasions), where the total of those terms is 2 years or more; or (e) the person has been acquitted of an offence on the grounds of unsoundness of mind, or insanity, and as a result the person has been detained in a facility or institution. 8 Pursuant to s 496, the Minister may delegate this function. However the present decision is by the Minister himself. The effect of that is that the review provisions prescribed in s 500 do not apply, so that these proceedings are for review pursuant to s 476. I will return to this matter at a later stage. It may also be of assistance to note that whereas s 501 deals with the refusal to grant a visa or the revocation thereof, ss 200 and 201 deal expressly with deportation. As I understand it, the latter sections authorize deportation without regard to the visa status of a non-citizen, whilst s 501 does not itself relate to deportation, but to the question of whether or not a visa should be granted or revoked. However the effect of revoking the visa of a person who is already in Australia is that he becomes liable for deportation. 9 Section 499 provides as follows: (1) The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about: (a) the performance of those functions; or (b) the exercise of those powers; (1A) For example, a direction under subsection (1) could require a person or body to exercise the power under section 501 instead of the power under section 200 (as it applies because of section 201) in circumstances where both powers apply. (2) Subsection (1) does not empower the Minister to give directions that would be inconsistent with this Act or the regulations. (2A) A person or body must comply with a direction under subsection (1). (3) The Minister shall cause a copy of any direction given under subsection (1) to be laid before each House of the Parliament within 15 sitting days of that House after that direction was given. (4) Subsection (1) does not limit subsection 496(1A). 10 Direction no 17 concerns the exercise of the power conferred by s 501. It is referred to in the briefing paper sent to the Minister concerning this matter (AB 6 – 17). Counsel for the Minister has indicated that he relies on the briefing paper as disclosing the reasons for his decision. The paper suggests that Direction no 17 is binding on the Minister. I doubt very much whether s 499 authorizes the Minister to give directions which bind himself. In normal usage, that would not be to "give written directions to a person or body". Section 501 confers an unfettered discretion upon the Minister to refuse or cancel a visa once the character test issue has been resolved against the person in question. In the absence of express provisions to the contrary, the Minister cannot fetter his exercise of that discretion. He may, however formulate a policy to guide that exercise. 11 Recent consideration of the appropriateness of policy directions in the exercise of statutory discretion commences with the following passage from the judgment of Bowen CJ and Deane J in Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 at 419 – 421: There are circumstances in which an administrative officer is precluded from taking into account the dictates of general government policy in the exercise of a power conferred upon him by virtue of his office. Examples can readily be found among cases where the particular officer is charged with the exercise of a power by reference to defined criteria or considerations … . Ordinarily, however, an administrative officer charged with the exercise of discretionary power will be entitled, in the absence of specifically defined criteria or considerations, to take into account government policy. The propriety of paying regard to general policy considerations is most evident in a case such as the present where there are no specified statutory criteria for the exercise of the discretionary power and where the power is entrusted to a Minister of the Crown responsible to Parliament. … Indeed, the consistent exercise of discretionary administrative power in the absence of legislative guidelines will, in itself, almost inevitably lead to the formulation of some general policy or rules relating to the exercise of the relevant power. … In a matter such as the present where it was permissible for the decision maker to take relevant government policy into account in making his decision, but where the Tribunal is not under a statutory duty to regard itself as being bound by that policy, the Tribunal is entitled to treat such government policy as a relevant factor in the determination of an application for review of that decision. It would be contrary to common sense to preclude the Tribunal, in its review of a decision, from paying any regard to what was a relevant and proper factor in the making of the decision itself. If the original decision-maker has properly paid regard to some general government policy in reaching his decision, the existence of that policy will plainly be a relevant factor for the Tribunal to take into account in reviewing the decision. On the other hand, the Tribunal is not, in the absence of specific statutory provision, entitled to abdicate its function of determining whether the decision made was, on the material before the Tribunal, the correct or preferable one in favour of a function of merely determining whether the decision made conformed with whatever the relevant general government policy might be. 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. … An example of an area of decision making where such an approach might, in the particular case, be appropriate is that involving the discretionary grant of statutory licences in circumstances where no statutory guidelines are laid down and the personal qualifications or characteristics of the prospective licensee are unimportant. Such a decision, even though it involves the application of government policy to the relevant facts, is the outcome of the independent assessment by the Tribunal of all the circumstances of the particular matter. It is to be contrasted with the uncritical application of government policy to the facts of the particular matter which represents an abdication by the Tribunal of its functions. In practice, the borderline between the two classes of decision may well be blurred and it is inevitable that there will be cases in which it is difficult to discern, from the published reasons of the Tribunal, on which side of the border the particular decision of the Tribunal lies. 12 Brennan J considered the matter in re-hearing the same matter, reported sub nom Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 640 – 641: The Minister is free to exercise that power without adopting a policy as to the standards and values to which he will have regard in deciding particular cases. He is equally free, in point of law, to adopt such a policy in order to guide him in the exercise of the statutory discretion, providing the policy is consistent with the statute. In Stringer v Minister of Housing and Local Government [1970] 1 WLR 1281, Cooke J (at 1298) held the effect of the relevant authorities to be: "… that a Minister charged with the duty of making individual administrative decisions in a fair and impartial manner may nevertheless have a general policy in regard to matters which are relevant to those decisions, provided that the existence of that general policy does not preclude him from fairly judging all the issues which are relevant to each individual case as it comes up for decision." There are powerful considerations in favour of a Minister adopting a guiding policy. It can serve to focus attention on the purpose which the exercise of the discretion is calculated to achieve, and thereby to assist the Minister and others to see more clearly, in each case, the desirability of exercising the power in one way or another. Decision-making is facilitated by the guidance given by an adopted policy, and the integrity of decision-making in particular cases is the better assured if decisions can be tested against such a policy. By diminishing the importance of individual predilection, an adopted policy can diminish the inconsistencies which might otherwise appear in a series of decisions, and enhance the sense of satisfaction with the fairness and continuity with the administrative process. Of course, a policy must be consistent with the statute. It must allow the Minister to take into account the relevant circumstances, it must not require him to take into account irrelevant circumstances, and it must not serve a purpose foreign to the purpose for which the discretionary power was created. A policy which contravenes these criteria would be inconsistent with the statute … . Also, it would be inconsistent with (the Act) if the Minister's policy sought to preclude consideration of relevant arguments running counter to an adopted policy which might be reasonably advanced in particular cases. The discretions reposed in the Minister by these sections cannot be exercised according to broad and binding rules (as some discretions may be) … . The Minister must decide each of the cases … on its merits. His discretion cannot be so truncated by a policy as to preclude consideration of the merits of specified classes of cases. A fetter of that kind would be objectionable, even though it were adopted by the Minister on his own initiative. A Minister's policy, formed for the purposes of (the Act) must leave him free to consider the unique circumstances of each case, and no part of a lawful policy can determine in advance the decision which the Minister will make in the circumstances of a given case. That is not to deny the lawfulness of adopting an appropriate policy which guides but does not control the making of decisions, a policy which is informative of the standards and values which the Minister usually applies. There is a distinction between an unlawful policy which creates a fetter purporting to limit the range of discretion conferred by a statute, and a lawful policy which leaves the range of discretion in tact while guiding the exercise of a power … . 13 The matter was considered again by French and Drummond JJ in Minister for Immigration v Gray (1994) 50 FCR 189 at 206-7: The place of government policy in the Tribunal's decision-making will depend upon the interests of good government and consistent decision-making on the one hand and the ideal of justice in the individual case on the other. But its decision must be the result of an independent assessment of all the circumstances of the particular case and not the uncritical application of policy … . This is nothing more than a statement of what is sometimes called the non-fettering principle which applies generally to statutory tribunals and decision-makers … . The proposition that government policy cannot bind the Tribunal does not imply that the policy can be ignored. It is reasonable to associate with the legislative intent that is taken to inform the construction of a wide statutory power, an acceptance of the likelihood that policies or guidelines will be developed by the Executive at either or both Ministerial or departmental levels to govern its application … . This is particularly so in the case of a power which involves high volume decision-making or which may, in any event, because of its subject matter, be expected to attract policy guidelines. Certain classes of immigration decision are necessarily high volume, such as those related to the grant of visas and entry permits. … … The imputed legislative contemplation of such policies for that purpose must be limited to those which are consistent with the general purposes and requirements, express or implied of the legislation in question. They cannot be expressed to fetter the exercise of the relevant discretion. Recognition of legislative contemplation that policy guidelines will be made is consistent with the requirement that each case is considered on its merit. But within that framework, the existence and content of lawful policy may properly be regarded as a relevant factor which, because it is properly contemplated by the legislature, must be taken into account by the Tribunal. 14 I must also refer in some detail to the decision of Sackville J in Bustescu v Minister for Immigration and Multicultural Affairs [1999] FCA 1713. The case is important because it concerns guidelines for exercise of the discretion conferred by ss 200 and 201 of the Act which, as I have previously observed, has some similarities to the discretion conferred by s 501. However I will leave the consideration of that case until after I have said a little more about Direction no 17 and the way in which it was applied in this case. 15 The preamble of the Direction describes the object of the Act as "to regulate, in the national interest, the coming into and presence in Australia of non-citizens." Referring to the discretion to refuse or cancel a visa where the applicant or holder does not pass the character test, the Direction asserts that: Exercise of this discretion will take into account a wide range of factors including the expectations of the community, the nature of crimes committed, the non-citizen's links to Australia and any relevant international law obligations. The Act enables the Minister to give precise written directions on what weight is to be given to each of these factors. These directions are binding to all decision-makers, including merits review tribunals, to ensure a consistency of approach. 16 Part 1 of the Direction concerns the character test and is not presently relevant. Part 2 is headed "Exercising the Discretion". Under the heading "Weight of considerations" this passage appears: 2.2 The Government is mindful of the need to balance a number of important factors in reaching a decision whether or not to refuse or cancel a visa. In making such a decision, a decision-maker should have regard to three primary considerations and a number of other considerations. The primary considerations are set out at paragraphs 2.3 – 2.16 and other considerations are set out at paragraphs 2.17 – 2.23. Decision-makers should note that no individual considerations can be more important than a primary consideration, but that a primary consideration cannot be conclusive in itself in deciding whether to exercise the discretion to refuse or cancel a visa. Decision-makers must have due regard to the importance placed by the government on the three primary considerations, but should also adopt a balancing process which takes into account all relevant considerations. (emphasis added) 17 Under the heading "Primary Considerations" are listed three factors, namely: (a) the protection of the Australian community, and members of the community; (b) the expectations of the Australian community; and (c) in all cases involving a parental relationship between a child or children and the person under consideration, the best interests of the child or children. 18 Each of these factors is then considered in detail. With respect to protection of the Australian community there is discussion of the seriousness and nature of the relevant persons' conduct. This involves an assessment of the nature of any offence committed. Some offences are said to be particularly serious. The sentence imposed and the person's criminal record are also to be considered. There is discussion of factors to be taken into account where any relevant offence was committed in another country (par 2.8). Other matters include the likelihood that the person will re-offend and the general deterrent effect of visa refusal or cancellation. As to expectations of the Australian community, it is suggested that it is expected that non-citizens will obey Australian law whilst in Australia. Further, it is said that some conduct may be such that the Australian community would expect that the perpetrator would not be granted a visa or would be removed from Australia. As to the interests of children, the major consideration is the desirability that children remain with parents save where the conduct of the latter makes this undesirable. 19 Under the heading "Other Considerations" par 2.17 provides: When considering the issue of visa refusal or cancellation, other matters, although not primary considerations, may be relevant. It is the Government's view that where relevant, it is appropriate that these matters be taken into account but that they be given less individual weight than that given to the primary considerations. 20 There is then a list of such considerations including the extent of disruption to the non-citizen's family, business and other ties to the Australian community, hardship to the immediate family resident in Australia, the non-citizen's family composition and evidence of rehabilitation. There is also discussion of Australia's international obligations under various conventions. 21 There is little valid distinction for present purposes between protection of the Australian community and the expectations of the Australian community. Each is really a function of the seriousness of the person's history of misconduct. Nonetheless the factors which are identified as relevant are generally fair and reasonable, if repetitive. A matter of concern, however, is the use of categories (primary and other considerations) and the prescription that: … no individual considerations can be more important than a primary consideration, but … a primary consideration cannot be conclusive in itself in deciding whether to exercise the discretion to refuse or to cancel a visa. 22 This appears to mean that in every case, considerations concerning protection or expectation must be treated as at least equally important as any non-primary consideration, without regard to the facts of the case. Elsewhere, the Direction invites a balancing exercise which would normally involve an assessment of all relevant factors, having regard to their significance in the case in question. The Direction appears to fetter that process to the extent that it prescribes that some factors can never have more weight than others. 23 The qualification that "a primary consideration cannot be conclusive in itself" is of little effect. Two primary considerations, protection and expectations will be present in almost all cases, militating in favour of refusal or cancellation of the visa. Where there are two primary considerations, and no other consideration can have more weight than either of them standing alone, an almost mathematical logic compels a decision which upholds those primary considerations. Further, as the primary considerations are really direct outcomes of the person's bad character, the effect is that once he or she fails the character test, there is virtually a prescription in favour of refusal or revocation of the visa. This is inconsistent with the unfettered discretion conferred by s 501. 24 It is one thing to say that some factors should generally be treated as more important than others. This is the situation with which Sackville J was concerned in Bustescu. It is quite another thing to say that a particular consideration must always be treated as at least equally important as another consideration without regard to the facts of the case. Section 501 prescribes failure to satisfy the character test as a condition precedent to the exercise of the discretion to refuse or cancel. It does not create any presumption as to the way in which that discretion should be exercised. The unfettered nature of the discretion inevitably implies that in particular circumstances any one factor may, at least theoretically, outweigh any other possibly relevant factor. 25 I turn now to the decision of Sackville J in Bustescu. At par 23 of his Honour's reasons, the relevant direction is set out. There are only two primary considerations, namely the expectations of the Australian community and the interests of children. However, it seems that the former encompasses both community protection and expectation of removal. In par 21 of the Direction (see par 25 of the judgment) other issues are considered, including hardship. It is indicated that the Government considers that such matters should be taken into account but given less weight than primary considerations. It seems that there is no provision to the effect that "no individual consideration can be more important than a primary consideration …". At par 37 et seq, his Honour considered the validity of the Direction, saying: As I have noted, the applicant contended that the Direction was invalid. That contention was founded on the proposition that the Direction, properly construed, prevents the decision-maker considering the merits of an individual case and was therefore inconsistent with s 200 of the Migration Act … . According to Mr Game, the Direction has this effect because it provides that considerations other than primary considerations are to be "given less weight than the primary considerations" … . It follows, so it was said, that where a decision-maker has to weigh a potential deportee's serious criminal record and the consequent expectation that he or she will be removed from Australia (a primary consideration) against hardship to that person (a non-primary consideration), the latter must yield to the former. 26 His Honour then referred to the decision of Brennan J in Drake and continued at par 39: Mr Johnson submitted that, properly construed, the Direction is not intended to preclude the AAT from considering the particular circumstances of each case, including the degree of hardship likely to be suffered by the potential deportee or members of his or her family. It is therefore open to the decision-maker to find, depending on the circumstances of the case, that the likely hardship outweighs the "primary consideration of the expectations of the Australian community …". And this may be so even if the potential deportee has committed very serious offences. In my opinion this approach to the construction of the Direction is correct. If the Direction were intended to have the rigid operation attributed to it by Mr Game, there would be little point in the express recognition in par 5 that the decision-maker should adopt a balancing process that takes into account all relevant considerations, not merely the two primary considerations. Similarly, there would be little point in the acknowledgment in par 21 that it is relevant to consider the degree of hardship which may be suffered by the potential deportee or member of his or her family. 27 At par 41 his Honour continued: It follows that, despite some ambiguity in the language, par 21 of the Direction must be read as preserving the discretion of the decision-maker to take into account all the relevant circumstances of the cases and, if otherwise appropriate, to hold that the hardship likely to be experienced by a potential deportee outweighs even serious criminal conduct. This conclusion does not resolve all questions of construction of the Direction, and perhaps not all questions going to validity, but it is sufficient for the purposes of the present case. 28 As I understand it, his Honour did not determine that the Direction was valid, but that any invalidity was irrelevant to the case under consideration. However his Honour's observation that it would be open to a decision-maker to find that hardship might be so great as to outweigh serious criminal misconduct cannot apply under the regime prescribed by Direction no 17, given that "… no individual considerations can be more important than a primary consideration." Sackville J strongly implied in Bustescu that the language of that Direction was difficult to construe in a way which would justify its validity. In my view, Direction no 17 goes further. It is inconsistent with the intention contained in s 501 that the discretion be unfettered. See also Lau v Minister for Immigration and Multicultural Affairs [2000] FCA 698, par 29. 29 This conclusion does not dispose of the present question. It is still necessary to determine whether or not the Minister's use of the Direction was such as to deprive his decision of validity. One would normally seek to answer that question by reference to his reasons. As I have said, the Minister did not provide reasons but relied upon the briefing paper prepared for his use and upon which he presumably acted. This may sometimes be an entirely appropriate course, but I fear that for present purposes it may have been quite unsatisfactory. This document is found at AB 6 – 17. I set out relevant passages: [5] If you are satisfied that Mr Aksu does not pass the character test, you must still consider the exercise of your discretion not to cancel his visa. In exercising your discretion you must consider the Minister's Direction no 17 made under section 499 ("the Direction") of the Migration Act 1958. The Direction is binding as to the weight to be accorded to certain matters and the considerations which should be included in your deliberations. 30 There is then a consideration of the primary considerations, including an assessment of the applicant's criminal conduct and views expressed by the prison authorities as to the likelihood of his re-offending. There is also a discussion of expectations of the Australian community and of the interests of children. The latter consideration was said to be irrelevant. I will return to this matter at a later stage. At par 22 the advising officer said: Paragraph 2.17 of the Minister's decision provides that other considerations may be taken into account by the decision-maker. It is the Government's view that where relevant, it is appropriate that these matters be taken into account but that they be given less individual weight than that given to the primary considerations. 31 There is then consideration of the length of time that the applicant has been in Australia and his family conditions and a summary of the "Factors against Cancellation", all of which are described as "other considerations". Under the heading "Factors in Favour of Cancellation", all factors are "primary considerations". The Minister was then advised that it was open to him to find that the applicant had not passed the character test and that "you may want to exercise your discretion (not) to cancel the visa". On the last page of the paper three options are provided as possible outcomes. The Minister struck out two of them, leaving the finding that "Mr Aksu does not pass the character test, has been unable to satisfy me that he does pass the character test and the visa is cancelled …". 32 In my view, the Minister was not bound by the Direction. He had the unfettered discretion conferred by s 501. If he treated himself as bound by it, then he erred. Given his adoption of the briefing paper as his reasons, it seems that he did so. However he was entitled to give such weight to the various factors as he thought appropriate. Had he simply chosen to place more weight upon the so-called primary considerations than upon other matters, having regard to the facts of the case, there could have been no criticism of the decision. However it is clear that his decision as to the pre-eminence of the primary considerations was not based upon his assessment of this case. According to the briefing paper (and therefore according to his reasons) he has chosen to proceed upon the basis that a consideration which is not a primary consideration cannot be more important than a primary consideration simply because the policy says so. 33 Shorn of the rather artificial language adopted in the Direction to describe the possibly relevant primary and other considerations, this case was almost exclusively concerned with weighing the seriousness of the applicant's criminal record and his record of drug abuse as against the fact that he has lived almost all of his life in this country and has no connections whatsoever in Turkey. According to the briefing paper, the Minister was to commence his consideration of the matter by assuming that the applicant's history of residence in this country could not be more important than the need to protect the Australian community or the expectations of that community. Although neither of those primary considerations could be conclusive in itself, that was of no consequence because there were two of them. 34 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 for the purposes of par 476(1)(e) of the Act. 35 Two other matters require comment. It was submitted that the Minister did not give appropriate weight to the interests of relevant children. This argument appears to be based upon the proposition that the applicant, in effect, became de facto father to his sister's children and grandchild following the death of her husband. In particular, the applicant refers to AB 47, which is a letter from the applicant's niece suggesting they need him as a man in the house. The applicant submits that this is sufficient evidence of the existence of a parental relationship to raise for consideration the factors identified in Part 3 of the Direction under the heading "The best interests of the child". I do not agree. There may well be a requirement to take into account an existing parental relationship, but I do not understand anything in the Direction to require that a relevant person be given the opportunity to develop such a relationship. The applicant's brother-in-law died in October, 1999. As far as I can see from his criminal record, the applicant has been in custody since, at the latest, 6 March last year. There can have been little opportunity for the development of a parental relationship. The evidence does not satisfy me that there is an issue arising out of a such a relationship between the applicant and any child. 36 Finally, it was submitted that the Minister had not taken into account the fact that the applicant had made contributions to the Australian community by being in employment from time to time and assisting his sister and her family. However par 36 of the briefing paper suggests that this latter matter was taken into account. As to the former, employment is usually seen as designed to benefit the individual rather than the community although sometimes, a person may serve the community in a distinguished way by his or her employment. There is nothing to suggest that such service was rendered in this case. 37 The Minister's decision will be set aside and the matter returned to him for further consideration. I will hear submissions as to costs. I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett. Associate: Dated: 4 May 2001 Counsel for the Applicant Mr R J Byrnes – 21 February 2001: Solicitor for the Applicant Russo & Coburn – 21 February 2001: The Applicant appeared in Person – 7 March 2001: Counsel for the Applicant Mr D C Rangiah – 11 April 2001: Solicitor for the Applicant Nicol Robinson Halletts – 11 April 2001: Counsel for the Respondent: Mr S J Lee Solicitor for the Respondent: Blake Dawson Waldron Date of Hearing: 21 February, 7 March and 11 April 2001 Date of Judgment: 4 May 2001