Federal Court of Australia

FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 19

ORDERS

THE COURT ORDERS THAT:

1.    The notice of contention is upheld.

2.    The appeal is dismissed.

3.    The appellant pay the first respondent’s costs of and incidental to the appeal such costs to be assessed on a lump sum basis by a registrar if not agreed.

4.    There be liberty to the appellant to apply within 14 days to vary order 3.

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

REASONS FOR JUDGMENT

O’CALLAGHAN AND COLVIN JJ:

1    The appellant is a citizen of New Zealand who has lived in Australia since he was a young child. He is now 33 years of age. By reason of his conviction and sentencing for grievous bodily harm in 2017, his visa was cancelled under s 501(3A) of the Migration Act 1958 (Cth). Power is conferred by s 501CA(4) to revoke the visa cancellation if the Minister is satisfied that there is reason to do so. A delegate of the Minister was not so satisfied and the cancellation was not revoked. The appellant sought review in the Administrative Appeals Tribunal.

2    In deciding whether to revoke the visa cancellation, the Tribunal was required to perform its function and exercise the power to revoke in accordance with any directions given by the Minister under s 499 of the Migration Act. At the time, there was such a direction in place being Direction 79 - Visa refusal and cancellation under s 501 and revocation of mandatory cancellation of a visa under s 501CA (Direction 79). Amongst other things, the direction identified the considerations relevant to former visa holders in determining whether to exercise the revocation power under s 501CA(4).

3    The Tribunal affirmed the decision of the delegate. The appellant then sought review in this Court on the basis of alleged jurisdictional error. The alleged error concerned the Tribunal’s understanding of what was required by Direction 79 when it came to weighing the relevant considerations specified in the direction.

4    A judge of this Court found that the Tribunal had misconceived what was required by Direction 79 when it came to the process of weighing up or balancing the relevant considerations but that the error could not realistically have affected the result. Therefore, on the basis that the error was not material, the application for review was dismissed: FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 775. The appellant now brings an appeal.

The grounds of appeal

5    The notice of appeal specifies three grounds, but only two grounds were pressed at the hearing. First, the appellant says that the primary judge erred in finding the error was immaterial when materiality had not been put in issue by the Minister. Secondly, the appellant says that, in any event, there was error by the primary judge in finding that the error was not material. In response, the Minister contends that the primary judge ought to have held that there was no error by the Tribunal in the approach that it adopted to weighing up or balancing the relevant considerations. The Minister also submits that materiality was in issue before the primary judge and the conclusion reached on that issue was correct.

Direction 79

6    The written submissions for the Minister stated that it is not contentious that non-compliance with Direction 79 may constitute jurisdictional error. In the course of the hearing it was accepted by counsel for the Minister that a failure to comply with the direction’s express requirements as to the considerations to be brought into account and the manner in which those considerations were to be weighed in deciding whether to revoke a visa cancellation would be jurisdictional. This position accords with a number of recent Full Court decisions concerning such directions: Kumar v Minister for Immigration and Border Protection [2020] FCAFC 16; (2020) 274 FCR 646 at [29] (Derrington and Thawley JJ); PQSM v Minister for Home Affairs [2020] FCAFC 125; (2020) 279 FCR 175 at [90] (Banks-Smith and Jackson JJ), compare [29]-[45] (Mortimer J); and Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 125 at [179] (O’Bryan J, Katzmann J agreeing).

7    No issue was raised in the appeal as to whether Direction 79 required an approach which was inconsistent with the Migration Act: s 499(2). In particular, no issue was raised in the appeal concerning the extent to which the power conferred by s 499 may be exercised in a manner which makes compliance with its requirements mandatory for the valid exercise of the power to which they relate: as to which, see YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 at [39] (Mortimer J). And no issue was raised as to the extent to which the direction may narrow for all or most cases the circumstances in which some considerations may be given more weight than others in the context of the power to revoke the visa cancellation: Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 at [44] (Colvin J).

8    Rather, the issues raised concerned precisely what was required by Direction 79 when it came to weighing or balancing the relevant considerations specified in the direction when exercising the power conferred by s 501CA(4). In that regard, the following aspects of Direction 79 may be noted:

(1)    The direction describes its contents as comprising, relevantly:

Preamble    Contains the Objectives of this Direction, General Guidance for decision-makers and the Principles that provide a framework within which decision-makers should approach their task of deciding whether to exercise the discretion to cancel or refuse a non-citizen’s visa under section 501 or to revoke a mandatory cancellation under section 501CA.

…

Part C    Identifies the considerations relevant to former visa holders in determining whether to exercise the discretion to revoke the mandatory cancellation of a non-citizen’s visa.

(2)    The Preamble sets out ‘General Guidance’ in para 6.2. It includes a statement that ‘factors that must be considered in making a revocation decision [under s 501CA] are identified in Part C of this Direction’.

(3)    The Preamble also sets out certain ‘Principles’. They include the following two Principles at para 6.3(5) & (7):

Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.

…

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.

(4)    There is a further statement in para 7 of the Preamble as to how the relevant discretion is to be exercised. Relevantly for present purposes it says:

Informed by the principles in paragraph 6.3 above, a decision-maker … must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a noncitizen’s visa will be revoked.

(5)    Then para 8 of the Preamble says:

Taking the relevant considerations into account

(1)    Decision-makers must take into account the primary and other considerations relevant to the individual case. There are differing considerations depending on whether a delegate is considering whether to refuse to grant a visa to a visa applicant, cancel the visa of a visa holder, or revoke the mandatory cancellation of a visa. These different considerations are articulated in Parts A, B and C. Separating the considerations for visa holders; and visa applicants recognises that noncitizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa applicant should have no expectation that a visa application will be approved.

(2)    In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.

(3)    Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.

(4)    Primary considerations should generally be given greater weight than the other considerations.

(5)    One or more primary considerations may outweigh other primary considerations.

(6)    Part C specifies three primary considerations, namely:

a)    Protection of the Australian community from criminal or other serious conduct;

b)    The best interests of minor children in Australia;

c)    Expectations of the Australian community.

(7)    Part C also specifies other considerations which ‘must be taken into account where relevant’, namely:

a)    International non-refoulement obligations;

b)    Strength, nature and duration of ties;

c)    Impact on Australian business interests;

d)    Impact on victims;

e)    Extent of impediments if removed.

9    It can be seen that Direction 79 specifies considerations which must be taken into account by a decision-maker such as the Tribunal in exercising the power conferred by s 501CA(4) to revoke a visa cancellation. The direction also differentiates between ‘primary and other considerations’. All specified considerations must be taken into account where relevant. However, when it comes to weighing those considerations, Direction 79 expressly requires that primary considerations should generally be given greater weight than the other considerations.

10    The ordinary meaning of the word ‘generally’ deployed in the manner in which it is used in the direction is to describe what is required in most instances. As was observed by the primary judge it conveys no more than ‘usually’, ‘commonly’ or ‘ordinarily’: at [23]. Therefore, as a matter of proper construction of the terms of the direction, the requirement to ‘generally’ give greater weight to the primary considerations means that there must be some matter specific to the circumstances of the case for giving one of the other considerations greater weight than any of the primary considerations before that can occur. Put another way, a decision could not be made on the basis that one of the other considerations, such as the strength, nature and duration of ties to Australia, was a matter that was inherently a matter to be given more weight than one or more of the primary considerations. Rather, there must be a reason, in the particular case, why the ‘other consideration’ is to be given greater weight than it would usually be given (being less weight than the primary considerations).

11    To be clear, it is not that the whole case under consideration must be out of the ordinary or indeed that there must be some respect in which matters relevant to the particular consideration might themselves be said to be unusual or out of the ordinary before one of the other considerations can be given greater weight than one or more of the primary considerations. Rather, there must be some identified reason, in the particular circumstances, as to why it is appropriate for the particular ‘other consideration’ to be given greater weight than one or more of the three primary considerations even though usually it is a consideration that is not to be given that greater weight. Whether that will be so may depend not only upon the particular material relevant to the ‘other consideration’ but also the strength or significance of the particular material relating to the primary considerations.

12    Further, this need for there to be a reason in order to give one of the other considerations greater weight than the primary considerations does not apply as between the primary considerations. In stating expressly that one or more primary considerations may outweigh other primary considerations, Direction 79 does not state that generally the primary considerations are to be given the same weight.

The relevant reasoning of the Tribunal

13    After setting out the relevant provisions of Direction 79, the Tribunal said at paras 54-55:

In Suleiman v Minister for Immigration and Border Protection Colvin J, in applying the identical provision to Paragraph 8(3) in the precursor Direction 65 stated that while generally primary considerations should be given greater weight, the Direction:

… requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply

An evaluation of the factors occurs in the context of the circumstances of the individual case, and while the primary considerations may outweigh the other considerations in accordance with paragraph 8(3), other considerations can outweigh the primary consideration in the particular circumstances of the case.

(footnotes omitted)

14    There was no criticism of this aspect of the Tribunal’s reasons. Twice it refers to ‘paragraph 8(3)’ of Direction 79. It may be noted that para 8(3) deals with primary and other considerations and how they may weigh in favour of or against revocation of a visa cancellation. As we will see, the particular issue for the Tribunal was how to undertake the task of weighing those considerations being a matter addressed by para 8(4) and (5).

15    The Tribunal then undertook an extensive and careful review of the material concerning each of the considerations referred to in Direction 79 and reached certain conclusions as to the degree of weight to be given to each of them.

16    As to the primary considerations, after evaluating the nature and seriousness of the appellant’s conduct to date as part of addressing the primary consideration of protection of the Australian community, the Tribunal said ‘the nature and seriousness of [the appellant’s] conduct weighs heavily against revoking the cancellation of the visa’ (para  81). The Tribunal then evaluated in considerable detail the material concerned with the appellant’s risk of re-offending and concluded that he has a ‘medium likelihood of reoffending’ (para 160) and that together with its evaluation that the consequent harm if he re-offended would be serious concluded that the protection of the Australian community ‘weighs heavily in favour of not revoking the cancellation of [the appellant’s] visa’ (para 162). As to the best interests of minor children in Australia, the Tribunal again undertook a detailed review of the material. It concluded that ‘the interests of minor children weigh heavily in favour of revoking the cancellation of his visa’ (para 231). Then as to the expectations of the Australian community, the Tribunal found, after considering relevant authority, that the expectation of the Australian community was that his visa would be cancelled (para 234). Nevertheless it found that countervailing considerations were such that a higher level of tolerance would be afforded to him because he had been in Australia from a young age, has made a positive contribution to the Australian community and has minor children and all his immediate family in Australia (para 236). It concluded as to the expectations of the Australian community that it was a consideration that ‘weighs considerably in favour of not revoking the cancellation of his visa’ (para 237).

17    As to the other considerations, each was evaluated. Most were found not to apply or to be ‘neutral’. However, as to the strength, nature and duration of the appellant’s ties to Australia, the Tribunal concluded (at para 288) after a detailed review of the material as follows:

Having taken into account [the appellant’s] ties with his immediate family, his extended family, Ms B, Ms TT and other members of the community, the Tribunal is satisfied this factor weighs strongly in favour of revoking the cancellation of his visa. When this consideration is added to the significant weight in favour of revoking the cancellation due to the length of time he has lived in Australia, this consideration weighs strongly in favour of revoking the cancellation of his visa.

18    The Tribunal also found that the appellant would face minor impediments in re-establishing himself in New Zealand and that factor ‘should be given slight weight in favour of revoking the cancellation of his visa’ (para 304).

19    None of the above analysis was criticised by the appellant in any way. It was detailed and considered and was based on the material presented to the Tribunal. To conclude in the course of such analysis that a particular consideration was to weigh heavily or considerably or lightly in favour of revocation or non-revocation was to reach an evaluative conclusion as to the significance to be attributed to each consideration when it came to reaching an overall decision. Further, each evaluation involved a relative assessment. So, for example, a conclusion that a consideration weighed strongly in support of not revoking the cancellation was not simply to accept the matters relied upon but was to express a view that there would need to be a strong countervailing consideration to overcome its significance. It reflected a form of ranking of the relative significance of each of the various considerations by a process that compared their importance or persuasiveness. Therefore, by the end of the analysis by the Tribunal of each of the relevant considerations (as has been described), a significant part of the process of weighing the various considerations that were required by Direction 79 to be taken into account had been undertaken.

20    The Tribunal then undertook an overall evaluation that involved bringing together the relative views that it had reached. Under the heading ‘Conclusion’, it said (paras 305-308):

Of the primary considerations, the protection of the Australian community weighs heavily in favour of not revoking the cancellation of [the appellant’s] visa, and the expectations of the Australian community weigh considerably in favour of not revoking the cancellation. The best interests of the children weigh heavily in favour of revoking the cancellations of the visa.

Of the other considerations, the strength nature and duration of [the appellant’s] ties weighs heavily in favour of revoking the cancellation of [the appellant’s] visa and the extent of impediments if removed weighs slightly in favour of revoking the cancellation of his visa.

Primary considerations should generally be given greater weight than the other considerations (cl.8(3)). In accordance with Suleiman, to give greater weight to one primary consideration, or to treat one or more of the other considerations as a primary consideration, it will be outside of the circumstances that generally apply. The Tribunal does not consider the circumstances of this case as outside those that generally apply.

The Tribunal considers the two primary considerations of protection of the community and the expectations of the community outweigh the best interests of the children, the strength, nature and duration of [the appellant’s] ties to Australia and any impediments he will face re-establishing himself in New Zealand. This means the decision not to revoke the mandatory cancellation of his visa is affirmed.

21    Of these four paragraphs (indeed of the whole reasons), the appellant’s complaint was directed solely to the sentence concerned with what was required in order for the Tribunal to accord with the reasoning in Suleiman. However, before considering the nature of the appellant’s contention concerning the sentence, it is well to place the sentence within its context in the Tribunal’s reasons, both immediate and as a whole.

22    The structure of the four paragraphs that form the conclusion is significant. The first deals with the weight to be afforded each of the primary considerations, the second deals with the weight to be afforded each of the other considerations that were earlier found to be of significance in the case of the appellant. The third deals with the proper approach to the overall weighing process. The fourth records the way in which the Tribunal weighed the considerations.

23    The first and second paragraphs accurately record the outcome of the detailed relative evaluation of the weight to be afforded each of the considerations considered by the Tribunal to be relevant and of significance. There is no criticism of them.

24    The fourth paragraph states the Tribunal’s view that the combined effect of the two primary considerations that it had found favoured non-revocation outweighed the combined effect of the third primary consideration and the other considerations that favoured revocation. As such, it records an overall assessment by the Tribunal that brings together all relevant considerations. Significantly, it undertakes that overall evaluation by bringing together the relative assessments the Tribunal has already made in the detailed reasoning that has been described.

The appellant’s contention concerning the Tribunal’s conclusion

25    Despite the Tribunal recording its evaluation in the manner described above, the contention advanced by the appellant concerning the third paragraph of the Tribunal’s conclusion was that it involved the Tribunal adopting a view that in order for any one primary consideration to have greater weight than the other primary considerations the case had to be outside of the circumstances that generally apply. It followed from the appellant’s contention as to what was meant by the second sentence that the Tribunal was saying in the third paragraph that because the case was not outside the circumstances that generally apply greater weight could not be given to the primary consideration concerned with the best interests of children over the other primary considerations.

26    It was also submitted that the Tribunal expressed the same view about the other considerations prevailing over the primary considerations. In short, they could not prevail because the case was not outside of the circumstances that generally apply.

27    Therefore, on the appellant’s case as to what the Tribunal meant to say in the third paragraph of the conclusion, the two primary considerations that weigh in favour of non-revocation simply could not be outweighed because the circumstances of the case were found not to be outside those that generally apply.

28    Yet, the Tribunal did not reason in that way in the fourth paragraph. Instead, it undertook a course that was only logical if the appellant’s construction of what the Tribunal said in the third paragraph is not correct, namely it undertook an evaluation that involved a weighing of all the considerations that it had carefully scrutinised in its detailed reasons.

The significance of the Tribunal’s fourth paragraph in its conclusion

29    If indeed the Tribunal’s reasons in the third paragraph were intended to convey what the appellant contended then the best interests of the children could not outweigh the other two primary considerations and the ‘other considerations’ could not outweigh the primary considerations. There was nothing more to be said. Indeed, on the appellant’s case it would be contrary to the views expressed in paragraph three for the evaluation described in paragraph four to be undertaken. That is to say, it would be wrong to weigh the various considerations in the way that the Tribunal plainly did weigh them.

30    This inconsistency between the appellant’s case concerning paragraph three and what the Tribunal said in paragraph four (when undertaking the actual task of weighing the considerations) suggests that something has miscarried in the form of the Tribunal’s expression of its reasons in paragraph three of its conclusion. There are other indications that this is the case.

31    As has already been explained, before embarking upon its task of evaluating the various considerations listed in Direction 79 for relevance and weight, the Tribunal described what was required by Suleiman. It did so in terms that were not criticised. In particular, it described Suleiman (correctly) as dealing with the circumstances in which ‘other considerations’ can outweigh primary considerations. At that point, the Tribunal did not refer to the circumstances in which one primary consideration may outweigh other primary considerations, being a matter that was not addressed in Suleiman and which, in any event, is addressed expressly in para 8(5) of Direction 79 which says in terms that one or more primary considerations may outweigh other primary considerations.

32    Further, it is plain that at the contentious point in its conclusion the Tribunal is reasoning by reference to what was said in Suleiman. The decision in Suleiman, like the present appeal, concerned an application to review a decision concerning the power under s 501CA and a direction expressed, for present purposes, in similar terms to Direction 79. The Tribunal in its reasons had described the other considerations as ‘secondary’. In the key part of its reasons concerning the risk of harm to Mr Suleiman if he was returned to his country of nationality, the Tribunal had said that the primary considerations in Direction 65 (the predecessor to Direction 79) ‘are normally given greater weight than the other considerations and in light of the evidence before it, the Tribunal finds that the primary considerations here clearly outweigh this secondary consideration’: at [22]. In that context, it was said by Colvin J at [23]:

The use by the Tribunal of the term ‘secondary’ indicates that the ‘other considerations’ are always of lesser importance. However, Direction 65 makes clear that an evaluation is required in each case as to the weight to be given to the ‘other considerations’ (including non-refoulement obligations). It requires both primary and other considerations to be given ‘appropriate weight’. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains ‘generally’ they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are ‘normally’ given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both ‘primary’ and ‘other considerations’. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.

33    The reasoning went on to conclude at [28]:

To treat the other consideration as secondary irrespective of its character in the particular case does not conform to the language of Direction 65. So, in this case, even though the Tribunal found that the applicant was ‘at risk of harm - arguably even death given the consequences that flow from this mental disability if left untreated’ this was a matter that it placed as always being of lesser importance than the primary considerations. The Tribunal did not consider, as it was required to do by Direction 65, whether in the specific circumstances the non-refoulement obligations should be afforded greater weight.

34    The point made in Suleiman was that the other considerations referred to in the direction were not inherently secondary and were not secondary in all circumstances. Generally, the primary considerations were such that they were to be given greater weight. However, particular circumstances may pertain that may justify greater weight being given to one or more of the other considerations than one or more of the primary considerations. It may be noted that the reference in Suleiman to an inquiry as to whether the case is outside the circumstances that generally apply should not be read as requiring an inquiry as to whether there was something about the nature of the case of the person wanting to maintain their status as a visa holder that was unusual or uncommon or out of the ordinary. Rather, the question was whether there was some reason why the general circumstance where the primary considerations should be given greater weight than the other considerations should not apply when it came to weighing the various considerations that were relevant to the particular case.

35    Having regard to what was decided in Suleiman it would be strange for the Tribunal to be saying something about the relative weight as between primary considerations.

The Tribunal’s adoption of the language in Suleiman

36    The Tribunal’s references to ‘circumstances that generally apply’ and to it treating one of the other considerations as a primary consideration appear to have been taken from the passage in the reasons in Suleiman at [23] (quoted above). So much was common ground. What was contentious was what should be concluded from the way the Tribunal incorporated that terminology. Before dealing with those contentions, for ease of reference, we set out again the relevant passage from the Tribunal’s reasons (being the third paragraph from the Tribunal’s conclusion):

Primary considerations should generally be given greater weight than the other considerations (cl.8(3)). In accordance with Suleiman, to give greater weight to one primary consideration, or to treat one or more of the other considerations as a primary consideration, it will be outside of the circumstances that generally apply. The Tribunal does not consider the circumstances of this case as outside those that generally apply.

37    Three points should be noted about the Tribunal’s reasons and the reasons in Suleiman.

38    The first point is that it is the opening sentence to the third paragraph of the Tribunal’s conclusion is dealing with the circumstances in which primary considerations should be afforded greater weight than the other considerations. The sentence reflects the terms of para 8(4) of Direction 79 (noting that the reference by the Tribunal was to para 8(3) which simply notes, relevantly, that any of the considerations may weigh in favour of or against revoking the visa cancellation and does not deal with relative weight at all). Therefore, the paragraph directs attention to the comparative weight as between primary considerations and other considerations.

39    The second point is that the reasons in Suleiman are not dealing with the weight to be given as between primary considerations. They are dealing only with the relative weight as between other considerations and primary considerations.

40    The third point is that the final sentence in [23] of Suleiman (being the sentence that contains the similar language to that used by the Tribunal) is dealing with two possibilities. First, one or more of the other considerations being treated as a primary consideration. Second, one of the other considerations being afforded the greatest weight of all the considerations (including primary considerations).

The contentious sentence in the Tribunal’s reasons

41    Turning then to the contentious words used by the Tribunal in the single contentious sentence in its reasons. It will be remembered that in Direction 79 there are three primary considerations and five other considerations.

42    The submission for the appellant is to the effect that the Tribunal’s words ‘give greater weight to one primary consideration’ meant ‘give greater weight to only one primary consideration over one or both of the other two primary considerations’. The submission for the Minister was to the effect that those words referred to the possibility of a particular primary consideration having greater weight over the other considerations. There is a further possibility (close to the submission for the Minister), namely that there is a slip in the wording and the Tribunal meant to refer to the possibility of one of the other considerations being given greater weight than any of the primary considerations.

The appellant’s construction should not be accepted

43    For the following reasons, the appellant’s submission concerning the meaning of the contentious sentence should not be accepted.

44    First, the Tribunal began its analysis at paras 54-55 with a correct statement of what was determined by Suleiman being a statement that did not suggest that it was concerned with when one primary consideration may be given greater weight than another.

45    Second, the opening words to the third paragraph of the Tribunal’s conclusion focus attention upon the issue as to when primary considerations should be given greater weight over the other considerations.

46    Third, it was obvious that Suleiman was concerned only with the circumstances in which one of the other considerations (described as secondary by the Tribunal in that case) might be given greater weight than the primary considerations. It was also stated squarely in Direction 79 in para 8(5) that one or more primary considerations may outweigh other primary considerations. Therefore, neither Suleiman nor the direction indicated any uncertainty as to the correct approach to weighing primary considerations with each other.

47    Fourth, the Tribunal used the language ‘treat one or more of the other considerations as a primary consideration’ which was plainly taken from the last sentence of [23] of Suleiman. The other alternative referred to in that sentence was treating one or more of the other considerations as the consideration to be afforded the greatest weight. Given the introductory words to the contentious sentence (which refer to ‘accordance with Suleiman’) it appears tolerably clear that the Tribunal was paraphrasing the two conditions stated in the last sentence of [23]. If so, it is likely that the contentious words were stating the second of those conditions which concerned when one or more of the other considerations might be afforded greatest weight amongst all considerations. Divorced from an understanding of what was said in Suleiman it may be argued that the appellant’s construction of the reasons should be accepted. However, read in the context of what was said in Suleiman, there is much to be said for the Minister’s alternative or the likelihood that something miscarried.

48    Fifth, and most significantly, as has been explained the weighing process that was actually undertaken by the Tribunal in the following paragraph did not give effect to the construction for which the appellant contends. If indeed the Tribunal had meant to state what was argued for the appellant then it would make no sense for the Tribunal to go on and weigh the various considerations in the manner that it did in the fourth paragraph.

49    Another way of expressing the above analysis is to say that the appellant’s submission approaches the Tribunal’s reasons with an eye attuned to finding error. Imperfections of expression in a single sentence in what were otherwise comprehensive and detailed reasons evaluating the relative weight to be afforded all of the relevant considerations followed by a conclusion expressed in the terms of the fourth paragraph of the conclusion shows that the Tribunal has performed its function and exercised its powers by complying with Direction 79.

Conclusion as to notice of contention

50    It follows that no error of the kind relied upon by the appellant has been demonstrated and for that reason the notice of contention by the Minister must be upheld. The appeal depended upon the contrary conclusion by the primary judge being sustained. As that premise for the appeal has not been upheld, the appeal must be dismissed and it is not necessary to consider the issues raised in relation to materiality.

Materiality

51    Despite our conclusion on the notice of contention, we have considered whether to deal with the materiality aspects of the appeal: Kuru v State of New South Wales [2008] HCA 26; (2008) 236 CLR 1 at [12]. We note that questions of some significance were raised as to whether an appellant must demonstrate materiality of any alleged jurisdictional error in the absence of any formal concession from the Minister. There were factual issues as to whether materiality was in issue. An issue was also raised as to whether the primary judge had, in any event, raised the issue (in effect by the Court’s own motion as to a matter of public law). Materiality goes to whether there was jurisdictional error. The precise circumstances which led to the issue of materiality not being in issue may be relevant to whether the Court can proceed on the basis that there is no issue as to materiality. We would have been inclined to call for further argument if the question was decisive. Therefore, we prefer to express no view on that aspect.

52    If materiality was required to be determined and we had been called upon to decide the issue then, in our view, for reasons we have given, there was much to be said for the Minister’s submission to the effect that the ultimate conclusion was not infected by the alleged misunderstanding of what was required in relation to weighing the various considerations. The Tribunal did not, in the result, regard the primary consideration of the best interests of minor children as being a consideration that could not outweigh the other primary considerations because the circumstances of the case were outside those that generally apply. Instead, the Tribunal weighed that primary consideration (and the other considerations in favour of revocation of the visa cancellation) against the other two primary considerations that were in favour of non-revocation.

A final note concerning Suleiman

53    Finally, we note that the primary judge expressed criticisms of the formulation in [23] of Suleiman as to what was required in order to comply with the weighing requirements as expressed in the predecessor to Direction 79. In these reasons we have set out our understanding of what was determined in Suleiman and the way in which the weighing process should be undertaken when it comes to other considerations being given greater weight than one or more primary considerations.

Final orders and costs

54    For the reasons we have given, the notice of contention should be upheld and the appeal should be dismissed. The Minister has been successful. We are not aware of any reason why costs should not follow the event. Therefore, we will also order that the appellant do pay the costs of and incidental to the appeal to be assessed if not agreed. We will reserve liberty to the appellant to apply within 14 days to vary the orders if it is considered that there is some proper basis for a different order as to costs.

Associate:

Dated:    22 February 2022

REASONS FOR JUDGMENT

DERRINGTON J:

55    As is appropriate, the reasons for judgment of O’Callaghan and Colvin JJ deal with the issues and the nature of the case as it was advanced by the parties in this appeal. On that basis and for the reasons given by their Honours the appeal should be dismissed. I agree with the orders proposed by their Honours.

56    I add that I also agree with their Honours’ articulation of the import of Colvin J’s observations in Suleiman v Minister for Immigration and Border Protection [2018] FCA 594.

Associate:    

Dated:    22 February 2022