Federal Court of Australia

Dunasemant v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 13

ORDERS

THE COURT ORDERS THAT:

1.    The appellant has leave to rely on ground 1 of the amended notice of appeal filed 7 May 2021 (Amended Notice of Appeal).

2.    The appellant is refused leave to rely on grounds 2, 3 and 4 of the Amended Notice of Appeal.

3.    The appeal be allowed.

4.    Orders 1 and 2 made by the primary judge on 24 February 2021 be set aside, and in their place, it be ordered that:

(a)    the decision of the second respondent (Tribunal) dated 7 October 2020 be quashed;

(b)    the matter be remitted to the Tribunal for determination according to law; and

(c)    the first respondent pay the appellant’s costs as agreed or as assessed.

5.    The first respondent pay the appellant’s costs as agreed or as assessed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

Introduction

1    This is an appeal from a decision of a single judge of this Court exercising original jurisdiction under s 476A of the Migration Act 1958 (Cth) to review a decision of the Administrative Appeals Tribunal. The Tribunal affirmed a decision of a delegate of the first respondent (Minister) made under s 501CA(4) of the Act not to revoke the mandatory cancellation of a Class TY Subclass 444 Special Category (Temporary) visa pursuant to which the appellant, Luke Dunasemant, a citizen of New Zealand, has lived in Australia for about 18 years.

2    The primary judge found that the Tribunal erred in failing to consider the effect of non-revocation on Mr Dunasemant’s mother, concluding that Mr Dunasemant’s representations on this topic and the evidence said to support them had been overlooked by the Tribunal. Nevertheless, the primary judge found that the Tribunal's failure to take this matter into account was not a jurisdictional error, because it was not material to the Tribunal's decision.

3    The original notice of appeal was filed on 3 March 2021, at a time when Mr Dunasemant was not legally represented. It was limited to a single ground of appeal which, inter alia, challenged the primary judge’s finding on the question of materiality.

4    By notice of contention filed on 31 March 2021, the Minister contended that a further ground upon which the primary judge’s conclusion as to the absence of jurisdictional error should be upheld was because there was an insufficient legal and evidential basis to support a finding that the Tribunal failed to consider the impact of non-revocation on Mr Dunasemant’s mother.

5    On 7 May 2021, Mr Dunasemant having obtained legal representation, filed an amended notice of appeal and an interlocutory application seeking to adduce further evidence on the appeal, effectively being the transcript of the proceedings before the Tribunal, which was not before the primary judge.

6    The amended notice of appeal raises four grounds. Ground 1 is a refinement and reduction of the ground that was raised in the original notice of appeal. It is directed to challenging the primary judge’s conclusion that the Tribunal’s error in failing to have regard to the effect of non-revocation on Mr Dunasemant’s mother was not jurisdictional in nature. As presently formulated ground 1 includes additional detail by way of particularisation. Ground 1 of the amended notice of appeal is not opposed by the Minister. Accordingly, to the extent that leave is required, the appellant has leave to rely on ground 1 of the amended notice of appeal.

7    Grounds 2, 3 and 4 are new grounds. They were not raised below. Mr Dunasemant requires the leave of the Court in order to rely on them. The Minister opposes leave, arguing, principally, that the proposed new grounds lack merit.

8    The Minister opposes the application to adduce further evidence arguing that Mr Dunasemant has not demonstrated that the further evidence could not, with reasonable diligence, have been adduced before the primary judge and further, that the evidence is not such that the result before the primary judge would very probably have been different: NASB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 24 at [42] (Beaumont, Lindgren and Tamberlin JJ).

9    For the reasons which follow, we have respectfully concluded that the primary judge erred in deciding that the Tribunal’s error in failing to have regard to the effect of non-revocation on Mr Dunasemant’s mother was not material. Accordingly, the appeal will be allowed on ground 1 and the matter will be remitted to the Tribunal for determination. The notice of contention will be dismissed. Having reached this conclusion, it is not necessary to determine whether leave ought to be granted in relation to the new grounds of appeal. Similarly, it is not necessary to determine the application to adduce further evidence on the appeal.

The Tribunal’s decision

10    The Tribunal’s decision is summarised by the primary judge at [13] – [14]:

[13]     There was no dispute about the first limb of s 501CA(4)(b)(i). Mr Dunasemant conceded that he did not pass the character test. The sole issue for the Tribunal was whether it was satisfied that there was another reason why the decision to cancel his visa should be revoked.

[14]    The Tribunal found that two of the three primary considerations — the first (the protection of the Australian community from criminal or other serious conduct) and third (the expectations of the Australian community) — both weighed heavily in favour of non-revocation. The Tribunal found that the second primary consideration (the best interests of minor children in Australia) weighed moderately in favour of revocation. The Tribunal also had regard to the other considerations listed in para 14.1 of the Direction, to the extent that they were relevant, and accorded differing levels of weight to them. It decided that the first and third primary considerations significantly outweighed all other considerations and “[a] holistic view of the considerations in the Direction therefore favours the non-revocation of the decision to cancel [Mr Dunasemant’s] visa”. It therefore concluded that it could not exercise the discretion to revoke the cancellation of the visa. As the Minister observed in his submissions, the Tribunal made these findings and reached this conclusion having regard to its anterior findings concerning the frequency and severity of Mr Dunasemant’s offending, “an increasing trend in the seriousness of [his] offending”, and the severity of the harm that could ensue if he were to reoffend. One of those findings was that the nature of the harm resulting from any return by Mr Dunasemant to “his offending ways” was so serious that exposing the Australian community to “any future risk” was “unacceptable”.

The Primary Judge’s Decision

11    A key finding by the primary judge was that the Tribunal, in what was otherwise a detailed, lengthy and reasoned decision, overlooked and failed to have regard to the effect of non-revocation on Mr Dunasemant’s mother.

12    The application before the primary judge was limited to one ground. The ground was that the Tribunal failed to consider the effect of non-revocation on Mr Dunasemant’s mother, although it was required to do so under Direction no. 79 “Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA”. The Direction is a written direction given by the Minister under s 499(1) of the Act and with which the Tribunal is bound to comply: s 499(2A).

13    The primary judge set out the submissions made by Mr Dunasemant (at [24]):

Mr Dunasemant submitted that the Tribunal was required to consider the effect of non-revocation on his mother as a member of his family with a right to remain in Australia indefinitely so that its failure to do so amounts to jurisdictional error. Yet, despite the terms of para 14.2(1)(b) of the Direction, the Tribunal did not consider the effect of non-revocation on any of his immediate family members in Australia. He also submitted that, if the Tribunal had considered the effect of non-revocation on his mother as it was required to do, then “it is possible the Tribunal may have found” that the first and third primary considerations were outweighed by the other consideration in para 14.2(1).

14    The parts of the Direction presently relevant are:

14.    Other considerations – revocation requests

(1)    In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):

(a)    …

(b)    Strength, nature and duration of ties;

(c)    …

15    Paragraph 14.2 of the Direction elaborates on para 14.1(b) and provides that:

(1)    The strength, nature and duration of ties to Australia. Reflecting the principles at 6.3, decision-makers must have regard to:

(a)    …

(b)    The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non-citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).

16    Paragraph 6.3 contains the principles underpinning the whole of the Direction, the last of which reads:

(7)     The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen's visa should be cancelled, or their visa application refused.

17    Significantly, for the outcome of this appeal, the principles articulated in para 6.3 of the Direction are relevant to both the primary considerations and the other considerations set out in the Direction.

18    In the present appeal, the two relevant considerations which Mr Dunasemant argued should have been weighed so as to take into account the consequences for other immediate family members in Australia were primary consideration (c) – expectations of the Australian community (para 13(2)(c) and 13.3) and other consideration (b) – strength, nature and duration of ties (para 14(1)(b) and 14.2(1)(b)).

19    The primary judge identified the question for determination as whether the Tribunal fell into jurisdictional error by failing to consider the effect of non-revocation on Mr Dunasemant’s mother. The primary judge answered that question in the negative and dismissed Mr Dunasemant’s application. In reaching her conclusion, the primary judge asked and answered the following three questions. First, whether the Tribunal was required to consider the effect of non-revocation on Mr Dunasemant’s mother. Answer, yes. Second, did the Tribunal fail to do so. Answer, yes. Third, whether it could have made a difference if it had. Answer, no.

20    Although both Mr Dunasemant and his mother gave evidence before the Tribunal, the transcript of the Tribunal proceedings was not before the primary judge nor was any affidavit addressing any aspect of the Tribunal hearing on which Mr Dunasemant wished to rely in his review application. The primary judge noted that as a consequence (at [35]):

..there was nothing before the Court to indicate that any evidence on the subject was adduced at the hearing or that any reference was made in submissions to the representation concerning the effect of non-revocation on Ms Dunasemant. It is not open to the Court to speculate on the matter but the Court may infer that no such evidence was adduced and no such reference was made.

Ground of Appeal

21    Ground 1 is that the primary judge erred in concluding that the Tribunal did not commit a jurisdictional error in failing to have regard to the effect of non-revocation on Mr Dunasemant’s mother under cl 14.2(1)(b) of the Direction. Included as part of the particularisation of ground 1 is the contention:

The Tribunal concluded that it was bound to consider the consequences of non-revocation on the appellant’s immediate family members in Australia when considering the primary consideration of expectations of the Australian community (Primary Consideration C). Had the hardship claim been considered in the context of Primary Consideration C, the Tribunal could have given this primary consideration less weight against the appellant.

22    It is not otherwise necessary to extract the extensive particularisation of the ground 1. The particularisation of the ground is to be understood in the context of the Minister’s notice of contention.

the primary judge’s materiality finding

23    The primary judge addressed materiality giving rise to jurisdictional error at [57] - [68].

24    The primary judge noted that the parties were in agreement that, if the Tribunal was required to consider the matter and omitted to do so, the omission does not amount to a jurisdictional error unless it is material and the omission will only be material if, but for the omission, there was "a realistic possibility" of a different outcome: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 at [45] - [50] (Bell, Gageler and Keane JJ). The onus of proof on this question rests with the applicant: SZMTA at [4] and [46].

25    Similarly, on the hearing of the appeal, there was no real issue between the parties as to the applicable principles. Leaving to one side the application to adduce further evidence and the submissions made in respect of the Tribunal transcript, the contest between the parties on the appeal concerned the assessment of materiality on the basis of the materials that were before the primary judge.

26    The critical passages of the primary judge’s assessment of whether the Tribunal’s error in failing to consider the impact of non-revocation on Mr Dunasemant’s mother was material are as follows:

[64]    In the present case the only evidence said to touch upon the effect of non-revocation on Ms Dunasemant were the last two sentences of her statement: “I am not getting any younger. I would be blessed to keep my son close to me”. The penultimate sentence is merely a statement of the obvious. The last raises more questions than it answers. The Court was not referred to any material touching upon Ms Dunasemant’s age, her health, her level of infirmity (if any), or the extent to which she had ever relied upon her son or whether she would do so if she could in the future. No evidence was apparently led from her or emerged in cross-examination to support the assertion Mr Dunasemant made in his representation to the Minister or the contention made on his behalf in his SFIC. Notably the Tribunal’s reasons disclose that Ms Dunasemant was questioned by Mr McComber about the effect on her grandchildren if her son were not allowed to remain in Australia. The fact that a similar question was not asked about the effect it would have on her suggests that any answer she could give would not have assisted her son’s case.

[65]    The representations concerning the effect of non-revocation were no more than bare assertions unsupported by any probative material. It was not suggested that, had the Tribunal taken into account that part of the Direction it overlooked, it could have explored the issue with Ms Dunasemant when she was in the witness box. Nor was anything put before the Court to indicate what she might have said if asked. In any event, the Tribunal found that the consideration to which this matter related weighed strongly in favour of revocation — the very submission made by Mr Dunasemant in his SFIC.

[66]    It will also be recalled that the Tribunal placed considerable weight on the two primary considerations of protection of the Australian community and the expectations of the Australian community. With respect to the former, the Tribunal found that, having regard to the severity of the harm it could cause, the risk of Mr Dunasemant reoffending was unacceptable…

…

[68]    In the present case, regardless of the weight the Tribunal attached to the primary considerations of the protection and expectations of the Australian community, it is fanciful to think that the outcome could have been any different if (approaching the matter fairly and reasonably with an open mind) the Tribunal had considered the effect of non-revocation on Ms Dunasemant. In the absence of any material which would have enabled the Tribunal to make a finding on the nature and extent of the effect, the Tribunal’s error was “so insignificant that [its] failure to take it into account could not have materially affected its decision” (Hossain [v Minister for Immigration and Border Protection (2018) 264 CLR 123] at [30]). That conclusion is only reinforced if the Tribunal’s opinions on the weight to be attached to the protection and expectations of the Australian community are taken into account. Put another way, having regard to the paucity of evidence on the subject, Mr Dunasemant has not discharged his onus of proof. The oversight on the part of the Tribunal did not “rise to the level of jurisdictional error” (Hossain at [37]).

CONSIDERATION

27    Mr Dunasemant’s argument on the appeal may be summarised as follows.

28    Given that Mr Dunasemant could not pass the character test, the Tribunal’s task was to form a state of satisfaction or non-satisfaction as to whether there existed another reason to revoke the cancellation decision: s 501CA(4)(b)(ii). The task was an evaluative one in two respects: the Tribunal was required to decide questions of fact that arose on the materials and to assess the relative weight to be allocated to the countervailing considerations: Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66; (2017) 250 FCR 548 at [30] – [32] (Collier J, Logan and Murphy JJ agreeing).

29    Having regard to the way in which the argument was put to the Tribunal, the primary judge erred in assessing whether the Tribunal’s error was material in two respects. First, in evaluating the material which was overlooked by the Tribunal as comprising bare assertions unsupported by any probative material. Secondly, by failing to factor into the assessment of materiality that the material which was overlooked went to the assessment of weight of both primary consideration (c) (expectations of the Australian community) and other consideration (b) (strength, nature and duration of ties). Considered in that context, and keeping in mind that consideration of the effect of non-revocation on Mr Dunasemant’s mother was both relevant and required, the Tribunal could realistically have come to a different decision if it had not overlooked the topic of the impact of non-revocation on Ms Dunasemant when exercising the broad discretion vested in it: FYBR v Minister for Home Affairs [2019] FCAFC 185; (2019) 272 FCR 454 at [24] (Flick J). Had the Tribunal not overlooked the topic, the Tribunal’s attribution of weight to primary consideration (c) may have been less and the Tribunal’s attribution of weight to other consideration (b) may have been greater. This gave rise to the realistic possibility of a different outcome.

30    For the reasons which follow we have concluded, with respect, that the primary judge erred in holding that the Tribunal’s error was not material.

Characterisation of the material before the Tribunal on the topic

31    The primary judge correctly recognised that the inquiry into whether an error is material is context specific: PQSM v Minister for Home Affairs [2020] FCAFC 125; (2020) 279 FCR 175 at [143] (Banks-Smith and Jackson JJ), cited by the primary judge at [62].

32    The primary judge’s approach was to first identify what it was that the Tribunal overlooked before moving to consider whether it was material.

33    The primary judge found (at [64]) that:

…the only evidence said to touch upon the effect of non-revocation on Ms Dunasemant were the last two sentences of her statement: “I am not getting any younger. I would be blessed to keep my son close to me.”

The primary judge dismissed this evidence as merely a statement of the obvious and raising more questions than it answered.

34    The primary judge next drew an inference in the nature of a Jones v Dunkel inference against Ms Dunasemant on the critical topic (see, Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298). The primary judge referred to the reference in the Tribunal’s reasons to the fact that Ms Dunasemant had been questioned before the Tribunal about the effect of her son’s removal on her grandchildren and noted that there was no equivalent reference to Ms Dunasemant being asked about the effect that her son’s removal would have on her personally. The primary judge inferred from the absence in the Tribunal’s reasons of a reference to a question being asked of Ms Dunasemant in respect of the impact of her son’s removal on her that such a question was not in fact asked. This finding was then leveraged to draw the inference that any answer Ms Dunasemant could have given would not have assisted her son’s case.

35    The primary judge concluded that Mr Dunasemant’s representations concerning the effect of non-revocation were no more than bare assertions unsupported by any probative material.

36    The primary judge’s conclusion is not borne out by a review of the material that was before the Tribunal. The material that touched on the critical issue was not limited to the last two sentences of Ms Dunasemant’s statement.

37    The relevant material before the Tribunal included the following documents: Mr Dunasemant’s Personal Circumstances Form (PCF), Mr Dunasemant’s Request for Revocation (RFR), Mr Dunasemant’s Statement of Facts, Issues, and Contentions (SFIC) and the Minister’s SFIC. Each of these documents formed part of the material before the Tribunal, as required by s 500(6F)(c) of the Act.

38    In his PCF, Mr Dunasemant included his mother’s details in the list of his family members. In answer to the question which asked for a description of the impact that cancellation would have, or has had, on his family, Mr Dunasemant said:

It is distressing to my family because the strength of my family ties to Australia and the fact that we are all close and they would all be emotionally distraught by my removal.

39    In his RFR, Mr Dunasemant expressly contended that other consideration (b), being the strength, nature and duration of his ties to Australia, weighed strongly in favour of revocation, partly because of the effect non-revocation would have on the his immediate family in Australia (including his mother).

40    Mr Dunasemant’s SFIC included the following:

Primary Consideration 3 – Expectations of the Australian Community

52.     The Applicant accepts that the Tribunal is required to approach it’s consideration of this primary consideration in the way endorsed by Charlesworth J in FYBR v Minister for Home Affairs [2019] FCAFC 185. That is, Direction 79 deems that the Australian community would expect the Applicant to forego the privilege of residing in Australia, but that it is for the Tribunal, in accordance with the principles prescribed by paragraph 6.3 of the Direction, to determine how much weight should be given to that expectation.

53.     The Applicant submits that having regard to paragraphs 6.3(5) and 6.3(7) of Direction 79 and:

…

d)    the consequences of non-revocation for the Applicant’s other immediate family members (as discussed below),

minimal weight should be placed on this primary consideration in determining whether to revoke the mandatory cancellation of the Applicant’s visa.

41    Mr Dunasemant went on to expressly submit in his SFIC that his mother would be significantly adversely impacted by a non-revocation decision.

56.     In relation to the matters prescribed by s 14.1(b) of the Direction, we submit that the Applicant has extremely strong social and family links to Australian citizen [sic] and permanent residents, including:

a)     having resided in Australia for over 18 years;

b)     having all of his immediate family (children, mother and brother) live in Australia;

c)     having worked in Australia for most of the period between 2002 and 2016.

57.     Further, we submit that the following members of the Applicant’s immediate family in Australia would be significantly adversely effected [sic] by a non-revocation decision:

 a)     the Applicant’s mother, Maria Dunasemant;

 b)     the Applicant’s brother, Neco Dunasemant; and

 c)     the Applicant’s ex-partner, Cara Dwyer.

58.     In the premises, we submit that this consideration weighs heavily in favour of revocation.

42    In the Minister’s SFIC, under the heading “Other considerations”, subheading “Strength, nature and duration of ties”, the Minister said:

50.     Separately from the minor aged children discussed above, the applicant has a family network in Australia including his mother, brother and other distant relatives (T31/128). Whilst it is acknowledged that these family members may suffer some emotional hardship if the applicant were to remain in New Zealand, there is no evidence that these family members are supported by the applicant …

43    This portion of the Minister’s SFIC was extracted by the primary judge at [37]. The primary judge observed that it is difficult to see how the Tribunal could have fallen into jurisdictional error by failing to consider a “mere possibility” of emotional hardship (at [39]).

44    The Minister’s SFIC however continues:

51.         Overall, the Minister accepts that this consideration weighs in favour of the applicant, however contends that it does not outweigh the protection of the Australian community or the expectations of the Australian community.

The Minister accepted that other consideration (b) – strength, nature and duration of ties – weighed in favour of Mr Dunasemant. Read in context, as a response to Mr Dunasemant’s SFIC, and in combination, [50] - [51] of the Minister’s SFIC support Mr Dunasemant’s submission on the appeal that the Minister had conceded that Ms Dunasemant as a family member would be impacted by non-revocation. While the Minister did not concede anything as to the nature or extent of such hardship, the Minister’s concession was not limited to a “mere possibility” of emotional hardship.

45    Against this background we return to Ms Dunasemant’s statement. The primary judge’s reading of the final two sentences of Ms Dunasemant’s statement did not adequately take into account the full context provided by what is said earlier in the statement. The statement comprises two pages. The following parts of the statement are important in contextualising the final two sentences “I am not getting any younger. I would be blessed to keep my son close to me.”

…I have always been the sole parent of all my children. I Have had no family support in raising my sons on my own. Luke has experienced domestic violence from the womb until age 12 years old. I have always been there for my son, doing my best in the most difficult times.

…

My son Pursued and relationship with Cara Dwyer, they then have 3 children together. Luke and Cara split up but remained on good terms for their children. I have 3 beautiful grandchildren, [T], [A] and [N]. [N] was born with abnormalities of her respiratory system. She has been hospitalized more then 21 times in her short 5 years. Luke has a loving and devoted relationship with his children and would like the opportunity to continue to co -parent with his children in Australia. His children need their father to be present in their lives.

…

Luke has no family support or any form of support if he returns to New Zealand.

Please I pledge that my son will be a valued member of society here in Australia. I ask in gods name that you take all matters into consideration. He has made a mistake, and his family deserve to have their father present. I am not getting any younger. I would appreciate and be blessed to keep my son close to me.

[As written]

46    Ms Dunasemant says that she is the sole parent to all of her children and that she has always been there for her son. She refers to her grandchildren fondly. She notes that she is employed. She works as a community support worker. It is in that context that she says that she is “not getting any younger” and that she would “be blessed to keep her son close” to her in Australia. Read in context, it is implicit in the final two sentences of Ms Dunasemant’s statement that she is concerned that if Mr Dunasemant is removed, the needs of his three children, including those of the child with chronic health issues, would fall, at least in part, to her. The final two sentences of Ms Dunasemant’s statement are directed to the emotional and practical consequences she would experience if her son is removed.

47    The Tribunal expressly found that Mr Dunasemant’s relationships with members of the Australian community were ‘strong and palpable’. The finding was made in the context of his relationship with his family in Australia. Having made that finding, the clear inference is that his mother would suffer emotional hardship if he is removed from Australia.

48    Against the contingency that the Tribunal transcript is not received as further evidence on the appeal, Senior Counsel for Mr Dunasemant submitted that regardless of whether direct evidence in the form of the transcript was admitted on the appeal, it is self-evident that Ms Dunasemant would be adversely impacted by the non-revocation in circumstances where there is no suggestion of estrangement between her and her son. Indeed, the evidence is to the contrary. Ms Dunasemant turned up to support her son. Notwithstanding the transcript is not in evidence, the fact that she attended and gave evidence before the Tribunal was not in issue. She also provided a statement in support of him. Accordingly, it was submitted that as a matter of ordinary human experience, absent evidence to the contrary, and even without evidence, there was sufficient material from which the Tribunal would infer that there would be at least significant emotional hardship to Ms Dunasemant if her son was permanently excluded from Australia. In that context it was respectfully submitted that even on the material before the primary judge, the emotional harm to Ms Dunasemant was self-evident as a matter of ordinary human experience and therefore to conclude that the prospect of consideration of that issue as having no possible effect on the outcome or as being fanciful was wrong.

49    In concluding that the material in relation to the impact of non-revocation on Ms Dunasemant did not rise above bare assertion, the primary judge also relied on the Jones v Dunkel inference that any evidence that Ms Dunasemant could give would not have assisted her son. The primary judge drew that inference based on the absence of a reference by the Tribunal to Ms Dunasemant being asked a question on the effect her son’s removal would have on her whereas the Tribunal did refer to Ms Dunasemant being asked about the effect on her grandchildren.

50    The absence of such a reference by the Tribunal might more readily be explained as another manifestation of the Tribunal overlooking, in its entirety, the whole topic of the impact of non-revocation on Ms Dunasemant, notwithstanding that it was a topic which the Tribunal was required to consider given that it was relevant and was the subject of representations made by Mr Dunasemant. The Tribunal’s reference to Ms Dunasemant being asked a question about the impact on her grandchildren was in the context of the Tribunal expressly considering the best interests of minor children in Australia as a primary consideration under the Direction and one to which the Tribunal attached moderate weight.

51    Even if the inference drawn by the primary judge was available on the information to which the primary judge had regard, it cannot safely stand when the final two sentences of Ms Dunasemant’s statement are read in the context of the statement as a whole.

The topic was relevant to the assessment of weight for primary consideration (c) and other consideration (b)

52    The primary judge then moved to consider whether the material which had been overlooked could have realistically made a difference to the decision had it not been overlooked. The primary judge’s materiality finding is at [66] and [68]. The primary judge found that it was fanciful to think that the outcome could have been any different if the Tribunal had considered the effect of non-revocation on Ms Dunasemant. The primary judge concluded that the Tribunal’s error was not material when regard was had to the fact that the Tribunal found in any event that other consideration (b) was strongly in Mr Dunasemant’s favour and having regard to the weight the Tribunal attached to primary considerations (a) and (c) ([66], [68]).

53    The way in which Mr Dunasemant framed this part of his argument emerges clearly from his SFIC. He contended that the hardship occasioned to, inter alia, his mother was relevant in two ways.

54    First, it was relevant to the Tribunal’s assessment of the primary consideration (c). Mr Dunasemant accepted that Direction 79 deems that the Australian community would expect him to forego the privilege of residing in Australia, but submitted that it was for the Tribunal, in accordance with the principles prescribed by para 6.3 of the Direction, to determine how much weight should be given to that expectation: FYBR at [77] (Charlesworth J) and [102] (Stewart J). In this respect, the principle articulated in para 6.3(7) (set out above at [15]) is relevant to the assessment of primary consideration (c).

55    The submission made in the SFIC was that in light of the consequences of non-revocation for Mr Dunasemant’s other immediate family members, amongst other factors, minimal weight should be placed on primary consideration (c) in determining whether to revoke the mandatory cancellation of Mr Dunasemant’s visa.

56    The hardship claim involved significant human consequences for Mr Dunasemant and for Ms Dunasemant, a person with an indefinite right to remain in Australia. As Allsop CJ remarked in Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; (2018) 267 FCR 628 at [3]:

….cases under s 501 and the question of the consequences of a failure to pass the character test not infrequently raise important questions about the exercise of Executive power. Among the reasons for this importance are the human consequences removal from Australia can bring about… The consequences of these considerations are that where decisions might have devastating consequences visited upon people, the obligation of real consideration of the circumstances of the people affected must be approached confronting what is being done to people. This obligation and the expression of its performance is not a place for decisional checklists or formulaic expression. Mechanical formulaic expression and pre-digested shorthand expressions may hide a lack of the necessary reflection upon the whole consideration of the human consequences involved. Genuine consideration of the human consequences demands honest confrontation of what is being done to people. Such considerations do not detract from, indeed they reinforce, the recognition, in an assessment of legality, that those entrusted with such responsibility be given the freedom of lawful decision-making required by Parliament.

57    The representations that were made and the material that was before the Tribunal, including the statement of Ms Dunasemant, required the Tribunal to make a finding on the nature and extent of the hardship claim. The Tribunal’s error was to completely overlook the issue of the hardship to Mr Dunasemant’s mother.

58    It follows that in determining the weight to be given to primary consideration (c), the Tribunal did not take into account a factor that it was obliged to weigh in the balance, a representation having been made on the point that was clearly articulated and supported by material that was before the Tribunal. The primary judge concluded that the Tribunal’s error was not material when regard was had to the Tribunal’s opinion on the weight to be attached to the protection and expectations of the Australian community ([68]) but did not grapple with the submission that if the hardship claim in respect of Ms Dunasemant had been considered in the context of primary consideration (c), the Tribunal could have given this primary consideration less weight in its assessment of factors against revocation.

59    Secondly, Mr Dunasemant submitted to the Tribunal that in considering other consideration (b) it was required to take into account that his mother, amongst others, would be significantly adversely effected by a non-revocation decision and that this consideration weighed heavily in favour of revocation. As for primary consideration (c), so too for other consideration (b), in overlooking the issue entirely, the Tribunal failed to consider a representation that had been clearly articulated and which was supported by material that was before the Tribunal. If the hardship claim in respect of Ms Dunasemant had been considered in the context of other consideration (b), the Tribunal could have given this primary consideration even more weight in its assessment of factors in favour of revocation.

60    In this way, the Tribunal’s failure to consider the hardship claim was relevant to the way in which the Tribunal attributed weight to primary consideration (c) and other consideration (b) in the exercise of its function under s 501CA(4)(b)(ii) and realistically could have resulted in the Tribunal reaching a different conclusion as to whether there was another reason to revoke the cancellation decision.

CONCLUSION

61    For these reasons, we have concluded that the Tribunal’s error was material and that ground 1 should be allowed. In light of our conclusion on ground 1, it is not necessary to determine the leave application in respect of the new grounds of appeal or the application to adduce further evidence.

Associate:

Dated: 17 February 2022