Case: Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 50 FCR 189
Outcome: cited
The applicant seeks an affirmative answer to this question relying on the decision of the Full Court in Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 50 FCR 189. A delegate of the Minister had determined that the respondent should be deported because he had committed various criminal offences in Australia. He appealed to the Administrative Appeals Tribunal. In affirming the delegate's decision the Tribunal made two brief references to a ministerial policy statement relating to criminal deportation. French and Drummond JJ held (at 211) that the ministerial policy statements "were relevant factors which the Tribunal was bound to consider although not bound to apply so as to prejudice its independent assessment of the merits of the case." Their Honours found that the Tribunal had failed to have regard to certain central elements in the policy in coming to its decision. They said (at 208) that: "On the other hand, where the existence and content of such a policy is to be regarded as a relevant fact which the Tribunal is bound to consider, a serious misconstruction of its terms or misunderstanding of its purposes in the course of decision making may constitute a failure to take into account a relevant factor and for that reason may result in an improper exercise of the statutory power. If a decision-maker, not bound to apply policy, purports to apply it as a proper basis the disposing of the case in hand, but misconstrues or misunderstands it so that what is applied is not the policy but something else, then there may be reviewable error. In a limiting case a policy may be so broadly stated as to cover all considerations properly brought to bear on the exercise of the discretion. In such a case misconstruction of a policy may reduce to misconstruction of the statute or misunderstanding of its purpose." 26 His Honour expressly rejected a contention that the Full Court decision in Gray compelled a different conclusion. His Honour said (at [62], [63], [66]) that: "[62] Although the Minister, like the AAT in Gray's case, is not bound to apply the Ministerial direction this does not preclude him or her from adopting a ministerial policy to be applied in such cases providing he does not fetter his discretion in so doing. The adoption of a policy guideline would be entirely consistent with the impited legislative intent that the Minister's powers not be exercised capriciously or arbitrarily, albeit the policy might be changed from time to time. In this case the Issues Paper told the Minister no more than that it was open to him to be guided by the factors set out in the Direction. It did not suggest that he apply the policy. The facts provided to the Minister for consideration reflected those identified in the Direction. But although it may be inferred that the Minister decided to adopt that general approach, it does not mean that he was bound to treat the interest of Mr Le's children as a primary consideration or that he in fact did so. [63] The best interests of the children of the visa holder affected by a decision taken by the Minister under s 501 cannot be regarded as a mandatory relevant factor in the exercise of the Minister's discretion by reason of the terms of the statute, international law or the Minister's own policy directions ... [66] Absent a requirement, conditioning the exercise of the cancellation power, that the Minister have regard to the best interests of the visa holder's children, the complaint of a constructive failure to consider their interests, even if made out, would not expose a jurisdictional error..."