Case: Telstra Corporation Ltd v Australian Competition and Consumer Commission [2008] FCA 1758
Outcome: followed
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24 at 41, Mason J explained that in the absence of any statutory indication of the weight to be given to various considerations, it was generally for the decision-maker and not the Court to determine the appropriate weight to be given to the matters that are required to be taken into account in exercising a statutory power. But he said that the Court could set aside an administrative decision which had failed to give adequate weight to a relevant factor of great importance, or had given excessive weight to a relevant factor of no importance. Mason J cautioned that the preferred ground on which that judicial power was to be exercised was that the decision was "manifestly unreasonable". I discussed the principles applicable to a statutory duty of, or requirement for, a decision-maker to take into account or to have regard to factors in Telstra Corporation Ltd v Australian Competition and Consumer Commission [2008] FCA 1758 at [103] - [112] . When the expression "regard must be had to" or like expressions are used in a statute in respect of a particular criterion or factor to be considered by a decision-maker, he or she is bound to treat such a factor as a central or fundamental element in the making of the relevant decision: Telstra Corporation Ltd v Australian Competition Tribunal [2009] FCAFC 23 at [267] per Jacobson, Lander and Foster JJ applying Telstra [2008] FCA 1758 at [103] - [112] . Often the three primary considerations in Direction No 21 will tend in different directions. The best interests of a visa holder's child may often be to remain with his or her parent, while the protection of the Australian community or its expectations may tend in the other direction. As I said in Telstra [2008] FCA 1758 at [110] , in the context of ordinary principles of administrative decision-making, where fundamental weight must be given to a particular factor or factors, the requirement is that the decision-maker treat consideration of the factors, as opposed to the factors themselves, is a central element in the deliberative process. It will be in this manner that he or she will give appropriate weight to those factors. I am of opinion that par 2.17 permits the decision-maker to accommodate such an interpretation. It refers to other 11 factors that, where relevant, it may be appropriate for the decision-maker to take into account, but as par 2.17 continued, it was the government's view that: "... generally they be given less individual weight than that given to the primary considerations." In my opinion the requirements of Direction No 21 do not dictate any particular outcome. Rather, they reflect factors which must be considered by a decision-maker together with others which may be considered. Merely because two of the factors require that the protection of the Australian community and its expectations are to be given weight as primary considerations, does not mean that they necessarily and in every case will outweigh one or more other considerations, even if they are not primary considerations. However, by identifying some primary considerations and requiring the decision-maker to give weight to them, the direction emphasises that the decision-maker must have regard to those matters as a fundamental part of his or her deliberation. That does not preclude the decision-maker determining that some other factor is more important in particular circumstances. Ground 5 Mr Toro Martinez argued that the tribunal committed a jurisdictional error in applying Direction No 21 in the manner in which it did. He contended that this was because at the conclusion of its reasoning it stated that par 2.17 stipulated that other considerations were to receive less individual weight than the primary ones and that notwithstanding the well prepared and well argued case for Mr Toro Martinez, after considering all the evidence, the tribunal said: "I must conclude that the primary considerations of community protection and expectations outweigh the other considerations in this case." Earlier in its reasoning it had noted that par 2.6(a) of the direction gave "special and unique prominence and emphasis to offences involving the ... importation ... of illicit drugs". Mr Toro Martinez had been convicted of two offences committed in November 1996. He had pleaded guilty to the first, under s 233B(1)(d) of the Customs Act 1901 (Cth) of being knowingly concerned in the importation of 655 grams of pure cocaine, which exceeded the trafficable quantity. The maximum penalty for that offence was 25 years imprisonment or a fine of $100,000. Following a Crown appeal, he was sentenced to six years imprisonment with a three year non-parole period. He was also convicted in February 2002 of a second offence after a jury trial in respect of being the principal behind an importation of 4.492 kilograms of cocaine into Australia in December 1996. He was sentenced to 12 years and six months imprisonment with a non-parole period that expired on 8 June 2008. In that context, the tribunal was entitled to have regard to the very serious conduct involved in Mr Toro Martinez's offending. The tribunal gave detailed consideration to Mr Toro Martinez's present situation. It concluded that although the evidence of his rehabilitation suggested that the risk of recidivism might be low, it was nevertheless real and, if it occurred, could have serious consequences for the community. The tribunal had regard to these factors and the expectations of the Australian community. It concluded that the seriousness of the offences and their planned and calculated nature would ultimately lead most community members to the conclusion that the appropriate course was to cancel the visa. The tribunal then turned to considering other matters in accordance with par 2.17 of Direction No 21. It found that, as I have discussed above, the daughter would suffer some emotional hardship from his removal. It also found that there was a genuine relationship between Mr Toro Martinez and his fianc&eacute;e and that she would suffer hardship both emotionally and in terms of her business, were he to have his visa cancelled. The tribunal was evidently sympathetic towards the fianc&eacute;e. It found her to be an honest and deserving woman, making the observation that "any decision-maker would wish to avoid occasioning her any hardship, but she knew the facts and must have realised there were risks involved in continuing with the relationship".