FEDERAL COURT OF AUSTRALIA

KXXH v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 111

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent's costs of the appeal, assessed on a lump sum basis.

3.    By 4.00 pm AEST on 15 July 2022, the appellant and the first respondent file any agreed proposed minute of orders fixing a lump sum in relation to the first respondent's costs of the appeal.

4.    In the absence of any agreement having been reached, the matter of an appropriate lump sum figure for the first respondent's costs be referred to a Registrar for determination.

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

REASONS FOR JUDGMENT

THE COURT:

1    The appellant came with his parents to Australia from New Zealand in 1988 at the age of two. He never obtained Australian citizenship. He has a substantial criminal record, which includes domestic violence, other assaults, supply of methylamphetamine and other offences.

2    In November 2019, while the appellant was serving a term of 12 months' imprisonment for assault, a delegate of the first respondent (Minister) cancelled the appellant's visa, as was mandatory under s 501(3A) of the Migration Act 1958 (Cth). In accordance with the statutory framework described below, the appellant made representations to the Minister as to why the cancellation of his visa should be revoked. On 22 September 2020 a delegate of the Minister decided not to revoke the cancellation. The appellant sought review of that decision in the Administrative Appeals Tribunal. On 15 December 2020, the Tribunal affirmed the delegate's decision.

3    The appellant applied for judicial review of the Tribunal's decision in the original jurisdiction of this Court. On 13 October 2021 the primary judge dismissed the application. The appellant appealed on several grounds, but then proposed to rely on a single ground as contained in an amended notice of appeal. Counsel for the appellant's oral submissions at the hearing of the appeal were significantly broader than that amended ground, and after some interchange with the bench, counsel moved for a further amendment to substitute a single ground:

The primary judge erred by failing to find that the Second Respondent erred by failing to give lawful consideration to the interests of the grandchildren of the Appellant's fiancée.

4    Counsel for the Minister did not oppose leave provided that he had an opportunity to file any further written submissions after the appeal and provided the question of costs was reserved. The Court granted leave subject to those conditions and counsel for the Minister was able to proceed with his oral submissions. In the event, no further written submissions were filed.

5    For the following reasons the appeal will be dismissed.

The statutory framework

6    As of November 2019 the appellant was in Australia under a Class TY Subclass 444 Special Category (Temporary) visa.

7    Section 501(3A) of the Act provides that the Minister must cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the character test, relevantly because of the operation of s 501(6)(a) and s 501(7)(c) (substantial criminal record on the basis of a sentence of imprisonment of 12 months or more) and the person is serving a sentence of imprisonment on a full time basis in a custodial institution for an offence against a law of a Commonwealth, State or Territory. It is common ground that the delegate of the Minister lawfully reached this state of satisfaction and that at all material times the appellant has not passed the character test.

8    The appellant made representations to the Minister pursuant to an invitation made under s 501CA(3)(b) of the Act and the delegate of the Minister made a decision under s 501CA(4) not to revoke the cancellation of the visa. Section 501CA(4)(b) of the Act provides that the Minister may revoke the original decision to cancel the visa if the Minister is satisfied that the appellant passes the character test or that there is another reason why the original decision should be revoked.

9    Section 499 of the Act authorises the Minister to give written directions to a person or body about the performance of functions and exercise of powers the body has under the Act. The Minister has issued a number of such directions, including Direction No 79, 'Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA' (Direction 79). Under s 499(2A), both the delegate and the Tribunal in this case were required to comply with Direction 79.

10    The proposed ground of appeal that was put before the hearing of the appeal, and discarded at that hearing, directed some attention to specific provisions of Direction 79. The ground of appeal ultimately pursued does not, but it is still relevant to note that paragraph 13.2(1) of Direction 79 required the Tribunal to make a determination about whether revocation was in the best interests of minor children in Australia affected by the decision, and paragraph 13.2(3) required the best interests of each child to be given individual consideration to the extent that their interests may have differed. Paragraph 13.2(4) sets out a number of specific factors that must be considered where relevant, but the appeal as ultimately pursued did not concern any failure to consider these.

The relevant material before the Tribunal

11    The case that the appellant ultimately developed on appeal relied on what he contended was a significant difference between, on the one hand, the material that was before the Tribunal, and on the other hand the findings that the Tribunal made. So it is as well to start with a description of the material in so far as it is relevant. In doing so it is necessary to bear in mind that what is described below is necessarily taken out of the context of a much larger body of material about a number of other matters that was also before the Tribunal. The focus in what follows on representations and evidence about the grandchildren should not mislead the reader to think that this focus emerges with clarity when the material is considered as a whole.

12    The appellant's request for revocation of the cancellation of the visa was made in a form for that purpose provided by the Department of Home Affairs. It appears that the appellant filled out the form himself, and dated it 3 December 2019. In the box which is intended for a summary at the outset of the reasons why the appellant was seeking revocation, he referred, among other reasons, to the fact that he had '2 Australian citizen children aged 7 and 9 years old'. He also referred in this box to his 'fiancee [sic] soon to be wife' and to the fact that she had '10 children and 6 grandchildren that live in Australia and are all Australian citizen's [sic]'.

13    Accompanying that form was a Departmental 'Personal Circumstances Form' which the appellant also filled out on the same date. It indicated that the appellant's relationship with his fiancée, 'MS', had started some three and a half years before the date of the form, and that he would be living with her on his return to the community from his then current imprisonment. In answer to a question in the form '[d]escribe any current impact or likely impact on your spouse/partner in the event of a negative decision outcome (i.e. a non-revocation or visa cancellation decision)' the appellant wrote that MS would be unable to travel to New Zealand because of medical issues and said that she 'also has 10 children and 6 grandchildren in Australia and is an Austrailian [sic] Citizen and was born in Australia'. In context, that reference to MS's grandchildren appears to have been made in order to strengthen a representation that MS would not be able to come to New Zealand, or at least not relocate there, rather than a reference to the interests of the grandchildren.

14    The next page of the form had a heading: '8. MINOR CHILDREN (children under 18 years of age)' (emphasis in original). That and the following page contained spaces and questions for details of what were clearly described in a sub heading as 'all your minor children (including biological children, adopted children, step-children)'. Consistently with that, the appellant gave details and answered questions only about his two children L and W, and answered questions about his relationship with those children and the impact on them in the event of a negative non-revocation outcome.

15    The following page had a further sub heading: 'B. List below all other minor children in your life (including grandchildren, nieces/nephews, foster children, etc)' with a similar table for the details of those children. The appellant left that table blank. He also left blank the spaces for answers to the two questions on the following page: 'Describe your relationship with each of the other minor child/ren, including how often you contact/see the child/ren and the role you play in their life' and '[d]escribe any current impact on the other minor children, and/or any likely impact on them in the event of a negative s501 decision outcome (i.e. a non-revocation or visa cancellation/refusal decision)'.

16    There was then a section in the form headed '9. FAMILY DETAILS', which specifically said that minor children were to be listed on the preceding pages. The appellant listed a number of family members in this part of the form, none of whom (on the face of the details he gave) were children. In a table to state how many other relatives he had in Australia he numbered five nieces and nephews, without giving names or other details, there being no space provided to do so. In answer to a question to describe the impact of a negative outcome on his family he gave a general response that did not refer to any children.

17    In the last question in the form for '14. ANY OTHER INFORMATION' the appellant referred again to his two children L and W and to his 'soon to be wife' MS, but not to any other children.

18    The appellant also composed a letter dated 3 August 2020, apparently for the benefit of the delegate, which set out his life history and a number of reasons why he should be permitted to remain in Australia. This letter was seemingly in response to a 'natural justice letter' from the department concerning further criminal history information it had received. It referred in loving terms to his two children, L and W, and, at the end, to his fear that he would not be able to see them, seek and gain custody or watch them grow if his visa was not reinstated. The letter also said that he started his relationship with MS in 2018. It briefly mentioned her children (who are apparently adults) but not her grandchildren. Also before the delegate was a handwritten letter from MS herself, which did not mention her grandchildren.

19    There was a further handwritten letter dated 8 November 2020 from MS before the Tribunal, which the Tribunal received as an exhibit (Letter). The appellant's submissions before the primary judge placed some emphasis on this document. In it, MS referred to herself as the appellant's de facto partner and said that as at July 2019 they had been living together for 14 months. The Letter described how the parents of one of the grandchildren, that is the son of MS's deceased daughter, had died within six months of each other, leaving the child an orphan. It said that the child 'has a good relationship with' the appellant. A couple of pages later, after referring to their wedding plans, the Letter said: 'My Grandchildren ages 9, 3 and 2 love [the appellant] and have spent a lot of time together as a family they call [the appellant] "Little Pop". We even have video calls with him up until today and will continue to do so'. A little later the Letter said that the appellant 'is an amazing man, father, grandfather, partner and friend …'.

20    Both the Minister and the appellant provided statements of facts, issues and contentions (SOFICs) to the Tribunal. The Minister's SOFIC did not refer to the grandchildren, but under the heading of best interests of minor children only mentioned L and W. The appellant's SOFIC dated 16 November 2020 asked for reinstatement of his visa 'not only for myself, my family, friends and fiancee [sic]. But mainly for my 2 beautiful children. As they do not deserve to grow up in the Australian community without there [sic] father by there [sic] side'. The SOFIC described his relationship with MS, whom he called his 'partner', as well as referring to his 'fiancee [sic]' at other points. It did not mention MS's grandchildren.

The Tribunal's decision

21    The appellant was self-represented at the hearing before the Tribunal on 1 December 2020. He gave oral evidence at the hearing, as did MS.

22    Near the beginning of its decision the Tribunal listed the material before it, including the 'G-Documents' which contained the material that was before the delegate. The Tribunal also referred specifically to the appellant's SOFIC dated 16 November 2020 and the Letter from MS, that was admitted as an exhibit (the Tribunal attributed a date of 20 November 2020 to this, but no party took any point about the misdating). The Tribunal said that it had reviewed all the evidence before it and that it referred to 'all relevant materials' later in its reasons.

23    The Tribunal summarised the statutory framework, the contents of Direction 79 and (at a very high level) the issues for determination before it. Then, under a main heading 'Evidence Before the Tribunal', it summarised that evidence. Much of the summary was devoted to the history and circumstances of the appellant's offending and the risk of his reoffending. It then turned (under a heading 'Children') to summarise the evidence before it about the applicant's two minor children L and W, who were aged ten and eight at the time of the Tribunal's decision. At the end of that relatively brief section the Tribunal recorded that in his personal circumstances form the appellant said he had five nieces and nephews and that his fiancée, MS, had ten children and six grandchildren, who live in Australia. However, according to the Tribunal, 'he did not provide any information in relation to their ages or his involvement in their lives'. This is footnoted to the personal circumstances form and is a correct description of the relevant contents of the form as described above.

24    The Tribunal went on to describe the evidence about the appellant's relationship with MS, stating it as having begun in 2016. That description did not touch on her children or grandchildren.

25    A little later, under a heading 'Evidence of Applicant's fiancée', the Tribunal described the Letter and a previous letter from MS that was before the delegate, and the oral evidence that MS gave before the Tribunal. The transcript of that oral evidence was not before the primary judge or this Court. The Tribunal's description of the evidence covered a number of subjects, including MS's health problems, her relationship with and reliance on the appellant, and the circumstances of assaults on her for which he was convicted. In the course of this the Tribunal recorded that '[t]he Applicant gets along well with her eldest daughter and her husband and their children and they have babysat her granddaughters. He also has a very good relationship with her grandson'. The first statement is footnoted to the transcript of oral evidence and the second statement, that the appellant has a very good relationship with MS's grandson, is footnoted to the Letter.

26    After the Tribunal's description of the evidence came a section headed 'Exercise of discretion to revoke mandatory cancellation'. After assessing the evidence about the appellant's criminal offending and prospects of rehabilitation, the Tribunal found that the primary consideration of the protection of the Australian community weighed heavily against the revocation of the cancellation of the visa. It then turned to the second primary consideration, the best interests of minor children in Australia affected by the decision. The Tribunal set out in full paragraph 13.2(4) of Direction 79, which is mentioned above. It then considered the evidence in relation to the appellant's two minor children by reference to paragraphs 13.2(4)(a) to 13.2(4)(h), expressly citing each of those paragraphs as it went through each of the considerations raised in them. After considering a range of factors pertaining to L and W, the Tribunal then said:

134    The Tribunal has considered the interests of the Applicant's five nieces and nephews, and his fiancée's children and grandchildren who reside in Australia. There is very limited evidence before the Tribunal of the ages of these children, the nature of the Applicant's relationship with them, and how they may be adversely affected by his removal. Accordingly, the Tribunal has given the impact on these children only limited weight.

135    Applying the guidance in paragraph 13.2(4) of the Direction, the Tribunal finds that, on balance, this primary consideration weighs in favour of revocation of the Mandatory Visa Cancellation Decision as it is in the best interests of the Applicant's children and his nieces and nephews (individually and cumulatively) for the Applicant to have his visa reinstated and be permitted to remain in Australia.

27    The Tribunal then went on to consider the other primary consideration, the expectations of the Australian community, and found that this weighed against revocation. It then considered the other considerations that are mandated by Direction 79 in so far as they were relevant, including the strength, nature and duration of the appellant's ties to Australia. In that regard it acknowledged the appellant's strong family ties in Australia, without specifically mentioning MS's grandchildren. It did refer to his role as carer for MS, who has chronic medical problems, and found that this consideration weighed in favour of revocation.

28    In its ultimate conclusion, the Tribunal said (at paragraph 164):

Primary Consideration B weighs in favour of the revocation of the Mandatory Visa Cancellation Decision as it is in the best interests of the Applicant's children and his nieces and nephews (individually and cumulatively) for the Applicant to have his visa reinstated and be permitted to remain in Australia.

29    The Tribunal recorded its findings as to whether other primary considerations and other considerations mandated by Direction 79 weighed for or against revocation. It concluded that it was 'not satisfied that there is "another reason" why the Mandatory Visa Cancellation Decision should be revoked' (paragraph 167), reaching that conclusion without expressly indicating the weight it ascribed to each consideration and how they were combined to reach its ultimate conclusion.

The primary judge's decision

30    There were three grounds of review before the primary judge. The only one that remains relevant on appeal was summarised by his Honour as follows (at [46]):

Ground 1 claimed that the Tribunal failed to lawfully consider relevant evidence concerning the applicant's fiancée's grandchildren in Australia and failed to apply cl 13.2(1) of Direction 79 which was said to mandate that decision-makers must decide whether revocation of the cancellation of the visa is in the best interests of the relevant child.

31    At the outset of the primary judge's reasons, after describing the background and the nature of the task before the Tribunal within the statutory framework, his Honour gave attention to the material before the Tribunal that concerned the appellant's children and MS's grandchildren, which has been summarised above. In relation to the references to MS's grandchildren that MS made in the Letter his Honour said (at [29]):

I would characterise the references to the grandchildren as incidental to the main themes addressed by the Letter which concerned the applicant's relationship with his fiancée and the circumstances of the offending that led to his incarceration. In context, the references to the grandchildren are provided to illustrate the character of the applicant. There is no detail in the Letter of any particular consequences that would flow to the grandchildren if the applicant was removed from Australia. That is not surprising in circumstances where both their parents and their grandmother would remain in Australia. There was no suggestion in the Letter that the grandchildren depended upon the applicant in any way.

32    The primary judge then summarised the relevant reasoning of the Tribunal before turning to the grounds of review. His Honour described the reasons advanced in support of ground 1 as being that the Tribunal failed to consider the material concerning MS's grandchildren in the Letter; it failed to consider her oral evidence on that subject; it made no finding that MS's evidence was not credible; and that, contrary to paragraph 13.2(1) of Direction 79, it made no determination as to whether revocation was in the best interests of the grandchildren.

33    His Honour distilled that to a contention that evidentiary material concerning the grandchildren was not considered by the Tribunal, and a contention that the Tribunal did not make a determination about the best interests of the grandchildren as required by Direction 79. The ground of appeal as ultimately formulated engages only with the first of these contentions. Despite having been the focus of the appellant's written submissions, at the hearing of the appeal his counsel effectively abandoned the second contention.

34    In relation to the first contention, the primary judge described the submissions advanced before him by the appellant as having been based on a passage from Viane v Minister for Immigration and Border Protection [2018] FCAFC 116; (2018) 263 FCR 531 at [30], in which Rangiah J said that where a decision-maker has overlooked, not a substantial clearly articulated argument, but rather information (or material or evidence), 'there may be jurisdictional error where the "information" is sufficiently important, such that the error is serious enough to be described as jurisdictional'. The primary judge said the distinction was significant here because the Tribunal had considered the interests of the children, including the grandchildren, but it was said that it had failed to consider particular material. His Honour's reasoning about that contention was as follows:

54    The applicant placed considerable reliance upon the fact that there is a statement in the reasons to the effect that there is very limited evidence before the Tribunal of the ages of the applicant's five nieces and nephews, his fiancée's children and grandchildren when the Letter gave the ages of the three grandchildren. The applicant also says that the particular information in the Letter to the effect that the grandchildren call the applicant 'little Pop', and had spent a lot of time together as a family and that the applicant has a special relationship with the grandson was not mentioned in the reasons.

55    However, the fact that there is no express reference to this particular material in the reasons does not demonstrate that there was no consideration of the content of the Letter concerning the grandchildren.

56    As has been explained, the Tribunal did not disregard the Letter. It referred to the Letter in its reasons. It also referred to the oral evidence given by the applicant about the three grandchildren. The Letter only made reference to the grandchildren and not to the applicant's nieces and nephews. The only information about the applicant's nieces and nephews was in the Form (where their ages were not provided). Further, in the material provided to the Tribunal no significance was attributed to any relationship between the applicant and his nieces and nephews or his fiancée's children (as distinct from her grandchildren).

57    The relevant statement by the Tribunal in the reasons concerning children other than the applicant's own children is expressed in a rolled up way about all those other children (para 134). The conclusion is reached that there is very little evidence about the ages of those children, the nature of the applicant's relationship with them and how they may be affected by his removal. A finding in those terms was consistent with the material before the Tribunal concerning those children as a group.

58    In effect, the applicant says that it would have been more accurate as to the children to say there was evidence as to the ages of the grandchildren but no evidence as to the applicant's nieces and nephews or the children of his fiancée. Given the rolled-up way in which the relevant paragraph is expressed it cannot be inferred that the Tribunal had no regard to those parts of the Letter concerning the grandchildren. It was the case, as the Tribunal found, that the information about the ages of the children as a group was limited. The Tribunal did not say there was no evidence about the ages of the grandchildren.

59    Therefore, I do not accept the submission that the Tribunal failed to consider the material about the grandchildren.

35    The primary judge's reasoning about the second contention (failure to comply with Direction 79) is also relevant to the appeal:

63    Further, the Tribunal did not conclude that the interests of the grandchildren were irrelevant. The reasons stated that the interests of the grandchildren were considered and the impact on those children was given limited weight. The weight to be given to the consideration was a matter for the Tribunal. The specific factors listed in cl 13.2(4) were only to be considered 'where relevant'. It was open to the Tribunal to approach the matter in the way in which it did. It was not necessary to go through each factor and say that there was no material relevant to the factor. It was open to the Tribunal to find that as to all of the children (other than the applicant's own children) that there was limited evidence. It followed from that finding that there was not material that made the evaluation of the factors listed in cl 13.2(4) relevant.

64    Finally, it is said that in its ultimate conclusion about the interests of relevant children there was no reference to the grandchildren. However, having considered the evidence about all the children it was for the Tribunal to conclude the extent to which the interests of particular children weighed in favour of revocation (noting the finding about limited weight to be given to the interests of children other than the applicant's own children). The Tribunal reached the conclusion that it was the interests of the applicant's children and his nieces and nephews that meant that the primary consideration weighed in favour of revocation. It was a matter for the Tribunal to form that view and jurisdictional error has not been demonstrated because the Tribunal did not include the grandchildren in reaching that conclusion.

36    The primary judge went on to reject that second contention, as well as the other two grounds of review, which are not agitated on appeal. His Honour dismissed the application for judicial review with costs.

The appellant's case before this Court

37    We have set out the ground of appeal at the outset of these reasons. The appellant's case as developed in oral argument centred on contentions that the Tribunal did not engage intellectually with what his counsel described as the critical evidence in the Letter, and that the Tribunal's statement that there was very limited evidence before the Tribunal about the grandchildren indicated that the Tribunal had overlooked that 'critical evidence'. The appellant submitted that if the level of consideration required by law had been given to the primary consideration of the interests of the grandchildren, that consideration could have been more persuasive and realistically could have led to a different outcome, that is, that it was material.

38    To attempt to make those contentions good, counsel for the appellant focussed on the Letter and on MS's oral evidence. He made the strong claim that there was a complete failure to consider the evidence in the Letter about the relationship between the appellant and the grandchildren and that there was no intellectual engagement with MS's oral evidence on the subject. He said that the Tribunal had failed to refer to the detail that it had been given about the ages of the grandchildren or to look at specific children. He submitted that the Tribunal incorrectly referred to there being limited evidence about them when in fact, according to him, there was 'a large amount of evidence and a large amount of detail'. Counsel relied on statements of principle in Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352 and Minister for Home Affairs v Omar [2019] FCAFC 188; (2019) 272 FCR 589. He went so far as to submit that, while the Tribunal had appeared to summarise evidence including MS's oral evidence, that summary was designed to give an impression that the Tribunal had considered it, and was 'cursory in nature, perverse and incomplete'. He relied on Soliman v University of Technology, Sydney [2012] FCAFC 146; (2012) 207 FCR 277 to submit that the Court should not be so blinkered as to avoid discerning an absence of reasons or reasons devoid of any consideration. He submitted that the Tribunal should not keep the reader guessing whether or not a point was dealt with and how it was dealt with.

The Minister's case before this Court

39    According to counsel for the Minister, the point raised by the new ground of appeal concerned the Tribunal's consideration of the evidence about MS's grandchildren. He submitted that there was no suggestion that they had been overlooked entirely. He further submitted that the question that thus arose was whether, given the nature and quality of the evidence, the Tribunal failed to give adequate consideration to that evidence. He emphasised that the appellant's own statements before the Tribunal made no reference to the grandchildren, his relationship with them, or any concerns he had about the negative impact on them if he were to be removed from Australia. The Minister submitted that it should nevertheless be inferred from the Tribunal's reasons that it considered that the best interests of the grandchildren did not weigh in favour of or against revocation of the cancellation of the appellant's visa. While in some cases it will be necessary for the decision-maker to give reasons evidencing separate consideration of the interests of each individual child, this was not such a case.

40    Further, the Minister submitted that it was evident from the Tribunal's reasons that it had read the Letter. It was not necessary for the Tribunal to refer to every piece of evidence before it: see Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593; (2003) 75 ALD 630 at [46] (French, Sackville and Hely JJ). The question, according to counsel, was what inference should be made from the absence of reference to the specific evidence.

41    The Minister submitted that there should be no inference here that the Tribunal did not consider the evidence about the appellant's relationship with the children that appeared in the Letter, because the nature and quality of that evidence was consistent with the Tribunal's finding that it was limited (not that it was non-existent). The evidence can be said to be limited because there was a lack of particularity about the nature of the appellant's relationship with the grandchildren, and no specific evidence as to whether or how they would be adversely affected if the appellant were to be removed from Australia. This case is, he submitted, a far cry from Omar, in which the evidence about the awful consequences for the respondent of being returned to his receiving country was detailed. It was thus open to the Tribunal here to characterise the evidence in the way that it did.

Principles

42    Subject to one qualification, the appeal as ultimately pursued did not proceed on the basis that the Tribunal failed to take into account a consideration that was made mandatory by the statute, or by Direction 79 as a relevant instrument to which the statute gave force. There was no contention that the Tribunal failed to deal at all with the interests of MS's grandchildren as a substantial and clearly articulated claim. Rather, the appeal concerned the quality of the consideration given to those interests.

43    The qualification is that it appears to have been common ground that consideration of those interests was mandatory by reason of Direction 79. The Minister did not suggest otherwise. Uelese v Minister for Immigration and Border Protection [2015] HCA 15; (2015) 256 CLR 203 at [61] (French CJ, Kiefel, Bell and Keane JJ) established (in relation to a precursor of Direction 79) that the best interests of minor children in Australia are 'relevant' within the meaning of the direction if such children exist and that fact was known to the Tribunal. While the High Court was referring to biological children of Mr Uelese, in this case the Minister did not suggest that no meaningful relationship between the appellant and MS's grandchildren existed, or that its nature meant that their interests were not relevant at all.

44    That is significant because while, as has been seen, no representation by the appellant clearly raised the interests of the grandchildren, he did disclose their existence to the Tribunal, and the fact of a relationship was disclosed by the Letter from MS and by her oral evidence. So it was common ground that the best interests of MS's grandchildren did need to be considered. But beyond that, the final ground of appeal did not point to any matter specified in Direction 79 that the Tribunal had failed to address.

45    In Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17, a majority of the High Court recently summarised the principles that apply to a decision-maker's consideration of representations seeking revocation of the cancellation of a visa, as follows (most footnotes omitted):

22    Section 501CA(4) of the Migration Act confers a wide discretionary power on a decision-maker to revoke a decision to cancel a visa held by a non-citizen if satisfied that there is 'another reason' why that decision should be revoked. The statutory scheme for determining whether the decision-maker is satisfied that there is 'another reason' for revoking a cancellation decision commences with a former visa holder making representations. In determining whether they are satisfied that there is 'another reason' for revoking a cancellation decision, the decision-maker undertakes the assessment by reference to the case made by the former visa holder by their representations.

23    It is, however, improbable that Parliament intended for that broad discretionary power to be restricted or confined by requiring the decision-maker to treat every statement within representations made by a former visa holder as a mandatory relevant consideration. But the decision-maker cannot ignore the representations. The question remains how the representations are to be considered.

24    Consistently with well-established authority in different statutory contexts, there can be no doubt that a decision-maker must read, identify, understand and evaluate the representations. Adopting and adapting what Kiefel J (as her Honour then was) said in Tickner v Chapman [(1995) 57 FCR 451 at 495], the decision-maker must have regard to what is said in the representations, bring their mind to bear upon the facts stated in them and the arguments or opinions put forward, and appreciate who is making them. From that point, the decision-maker might sift them, attributing whatever weight or persuasive quality is thought appropriate. The weight to be afforded to the representations is a matter for the decision-maker. And the decision-maker is not obliged 'to make actual findings of fact as an adjudication of all material claims' made by a former visa holder.

25    It is also well-established that the requisite level of engagement by the decision-maker with the representations must occur within the bounds of rationality and reasonableness. What is necessary to comply with the statutory requirement for a valid exercise of power will necessarily depend on the nature, form and content of the representations. The requisite level of engagement - the degree of effort needed by the decision-maker - will vary, among other things, according to the length, clarity and degree of relevance of the representations. The decision-maker is not required to consider claims that are not clearly articulated or which do not clearly arise on the materials before them.

26    Labels like 'active intellectual process' and 'proper, genuine and realistic consideration' must be understood in their proper context. These formulas have the danger of creating 'a kind of general warrant, invoking language of indefinite and subjective application, in which the procedural and substantive merits of any [decision-maker's] decision can be scrutinised'. That is not the correct approach. As Mason J stated in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [(1986) 162 CLR 24 at 40; see also 30, 71], '[t]he limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind'. The court does not substitute its decision for that of an administrative decision-maker.

27    None of the preceding analysis detracts from, or is inconsistent with, established principle that, for example, if review of a decision-maker's reasons discloses that the decision-maker ignored, overlooked or misunderstood relevant facts or materials or a substantial and clearly articulated argument; misunderstood the applicable law; or misunderstood the case being made by the former visa holder, that may give rise to jurisdictional error.

46    These principles are, in terms, addressed to how the decision-maker must address the non-citizen's representations, and to what extent. In this case, there were no clearly identifiable representations made by the appellant about the interests of MS's grandchildren. Consideration of their interests was, in effect, made mandatory by a combination of Direction 79 and MS's statements in the Letter and in her oral evidence. However it is apparent that the passage from Plaintiff M1/2021 just quoted is informed by the well-established principles that concern jurisdictional error for failure to consider a matter, or to consider it adequately, that are of broader application than the context of s 501CA(4). Several aspects of those principles that are not specifically addressed in Plaintiff M1/2021 are also relevant here.

47    First, a conclusion that the decision-maker 'has not engaged in an active intellectual process will not lightly be made and must be supported by clear evidence, bearing in mind that the judicial review applicants carry the onus of proof': Carrascalao at [48] (the caution with which the label 'active intellectual process' must be approached does not detract from the standard expressed there). The onus lies on the appellant to establish on the balance of probabilities that a relevant matter was not considered, taking into account that the reasons of the Tribunal must be read fairly and not in an unduly critical manner: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 272; and BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; (2019) 268 CLR 29 at [38], as summarised in Savaiinaea v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 56 at [73] (Collier, Perry and Anastassiou JJ).

48    Second, as the Full Court said in Navoto v Minister for Home Affairs [2019] FCAFC 135 at [89] (Middleton, Moshinsky and Anderson JJ):

Excluding obvious cases, the determination of whether the decision-maker has given active intellectual consideration to a representation will frequently be a matter of impression reached in light of all of the circumstances of the case. In this context, whether or not the reasons of the decision-maker fall 'on the wrong side of the line', to quote Lafu [[2009] FCAFC 140; (2009) 112 ALD 1] at [49], will be a matter of inference to be drawn in particular from the manner in which the representation was advanced, and the structure, tone and content of the decision-maker's reasons. …

49    'What is required is the reality of consideration by the decision-maker. On judicial review the Court must therefore assess, in a qualitative way, whether the decision-maker has as a matter of substance had regard to the representations put': Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216; (2018) 267 FCR 643 at [45] (Rares and Robertson JJ).

50    Third, each case necessarily turns on its own particular facts and circumstances as established by the evidence: Omar at [36(e)]. The reasons must be considered by reference to the facts of the case and must be construed in a practical and common sense manner: Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83; (2015) 231 FCR 513 at [47].

51    Fourth, although the need to consider MS's grandchildren did not come from the appellant's representations, those representations remain relevant. In Omar at [34(g)] the Full Court said (Allsop CJ, Bromberg, Robertson, Griffiths and Perry JJ) (emphasis in original):

The representations play a central role in the relevant statutory regime. The Minister's statutory power to revoke (and therefore 'undo') the mandatory cancellation of a person's visa is only enlivened if revocation has been requested and representations are made in support of that request. The making of the representations is a condition on the exercise of the statutory power. Those representations play an important role in the Minister's determination of whether he or she is satisfied that there is 'another reason' why the cancellation should be revoked. As Colvin J said in Viane at [66], the Minister has a statutory duty to consider whether or not he or she has the requisite state of satisfaction to revoke the cancellation by reference to the material in the representations. …

52    The passage from Plaintiff M1/2021 quoted above confirms the importance of the representations to the exercise of the discretion in s 501CA(4). More broadly, the degree of consideration necessary is affected by the centrality to the issues of the matter with which it is said the decision-maker did not engage, and the prominence the matter assumed: Singh v Minister for Home Affairs [2019] FCAFC 3; (2019) 267 FCR 200 at [37(1)] (Reeves, O'Callaghan and Thawley JJ). It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons: Applicant WAEE at [46].

53    It is not necessary in that regard to distinguish between claims and evidence. The fundamental question is the importance of the material to the exercise of the Tribunal's function and thus the seriousness of any error: Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 at [111] (Robertson J).

54    Fifth and in any event, the fact that the Tribunal has not mentioned particular information does not necessarily mean that it has not considered that information. Section 43(2B) of the Administrative Appeals Tribunal Act 1975 (Cth), which requires the Tribunal to include in any written reasons its findings on material questions of fact, only requires the Tribunal to set out the findings of fact which in its opinion are material: Appellant V324 of 2004 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 259 at [8] (Hill and Allsop JJ, Stone J agreeing). That entitles the Court to infer that any matter not mentioned in the Tribunal's reasons was considered by the Tribunal not to be material: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [69] (McHugh, Gummow and Hayne JJ) (a case about s 430 of the Migration Act, but s 43(2B) of the Administrative Appeals Tribunal Act which applied here is not materially different). However, the Court need not make that inference. The manner in which a statement of reasons is drawn and its surrounding context may detract from or displace the inference; for example, because there is material that is so obviously relevant that it is unthinkable that the Tribunal would not have referred to it if it had actually considered it: SZTMD v Minister for Immigration and Border Protection [2015] FCA 150; (2015) 150 ALD 34 at [19] (Perram J). On the other hand, while a failure to deal with an issue in the decision-maker's reasons may indicate a failure to consider the issue, that inference should not be drawn too readily where the reasons are otherwise comprehensive and the issue has at least been identified at some point: Applicant WAEE at [47]. The appellant's submission that the Tribunal should not keep the reader guessing does not accurately state the standard to be applied. Cases such as these frequently require the Court, if not to guess, then to draw inferences from matters that have not received complete expression in the Tribunal's reasons.

Consideration

55    This is a case where, to adapt the words of the Court in Navoto, it is necessary to make a decision as a matter of impression, including by inferences to be drawn from the manner in which the appellant's case unfolded before the Tribunal and the structure, tone and content of its reasons. While it is not straightforward to determine whether the reasons here fall 'on the wrong side of the line', on balance we consider that they did not. Two principles emerging from the summary above are particularly important to that conclusion. The first is that it is the reality of the consideration that is important, not necessarily the manner in which it is (or is not) expressed. The second is that the degree of consideration required depends on the centrality of the matter to the issues that arise in the review.

56    In light of those principles, the following points about the material before the Tribunal and the summary of that material in the reasons it delivered are significant.

(1)    The appellant's application form and personal circumstances form placed emphasis on the interests of his biological children, L and W. The appellant did refer to MS's grandchildren in his application form, and to the fact that they were Australian citizens, but he did not say that he had any particular relationship with them or that separation from them would have any particular impact on them.

(2)    MS's grandchildren were also mentioned in the appellant's personal circumstances form, but only in the context of describing the impact on MS of a negative decision outcome. In that context the appellant seems to be referring to them because they would make it harder for MS to travel to New Zealand.

(3)    In any event, then, in a part of the form designated for the listing of all minor children in the appellant's life other than biological, adopted and step-children, he left the table blank. He also left blank the spaces to describe his relationship with any such children, and for the impact of a negative revocation decision on them. He also did not mention them in response to a subsequent question about the impact of a negative outcome on his family.

(4)    The personal circumstances form also referred to the appellant's five nieces and nephews. No more information about them was provided: not their genders or ages or, indeed, whether any or all of them were minors. No information as to whether the appellant had any relationship with them was provided (there was no space to do so in that part of the form, although there was space to do so in the section for listing 'other' minor children which was left blank). The sparsity of the information about the nieces and nephews becomes relevant because the Tribunal dealt with their interests in a way that was rolled up with the interests of MS's grandchildren. The emphasis in the form was, rather, on the interests of L and W.

(5)    That emphasis on the interests of L and W also appears in the appellant's letter to the delegate of 3 August 2020. That letter did not mention MS's grandchildren.

(6)    MS's Letter received as an exhibit did mention the grandchildren and did describe the appellant's relationship with them, saying that they love him. The description in the Letter is not detailed, beyond the mention of spending 'a lot of time together as a family', the fact that they call him 'Little Pop', and that they have video calls with him. It does not say that the grandchildren will be affected if the appellant is removed to New Zealand, although there is mention of the fact that one of the grandchildren is an orphan and has 'a good relationship' with the appellant. We agree with the primary judge that the overall tenor of the references to the grandchildren in the Letter is to illustrate the character of the appellant, rather than to say how they will be affected by separation from him.

(7)    Neither the Minister's SOFIC before the Tribunal, nor the SOFIC that the appellant prepared himself, raise the interests of MS's grandchildren as an issue. The appellant's SOFIC was dated after the date of the Letter.

(8)    It does not appear from the Tribunal's reasons that the appellant referred to MS's grandchildren in his oral evidence. There was no suggestion before this Court that he did.

(9)    In its reasons the Tribunal referred to the five nieces and nephews and to MS's children and grandchildren briefly in a section headed 'Children'. While this reference is brief, it is clear from its contents and context that the section headed 'Children' was only the Tribunal's summary of the information that the appellant himself had put before the Tribunal, before it turned to summarise the rest of the evidence. Within those limits, it was accurate and complete.

(10)    In a subsequent section headed 'Evidence of Applicant's fiancée' the Tribunal emphasised what MS said about her relationship with the appellant and her dependence on him. This evidence included MS's letter of support to the delegate (which does not mention her grandchildren), the Letter that was received as an exhibit, and MS's oral evidence. In so far as it mentions the grandchildren, the summary of the evidence said that the appellant got along well with the grandchildren, that he and MS had babysat MS's granddaughters (how often is not said) and that he had a very good relationship with her grandson. The fact that the Tribunal referred in this summary both to MS's oral evidence and to the Letter shows that it was sifting, assessing and synthesising the evidence from various sources.

57    Contrary to the appellant's submission, the Tribunal's summary of the evidence was more than cursory and incomplete, and there is no basis for the submission that it was designed to give a mere impression of consideration. Nor was it 'perverse'. The emphasis given to the grandchildren in this part of the Tribunal's reasons reflects the emphasis given to them in the written material that was before the Tribunal, especially the emphasis given by the appellant himself, and there is no basis for the Court to conclude that MS's oral evidence gave any different emphasis.

58    In light of all that, the brevity with which the Tribunal dealt with the interests of MS's grandchildren at paragraphs 134 and 135 is unsurprising. It does not by itself bespeak any failure to read, identify, understand and evaluate the material that was before it as to those interests. It is more likely to reflect a decision by the Tribunal to give little weight to those interests in the context of the matter as a whole. The Tribunal explicitly said that this is what it had decided to do. That decision was open to the Tribunal.

59    The problem with the appellant's case is highlighted by his reliance on Soliman. The relevant passage from that case (at [57]) when quoted in full is (emphasis added):

Just as reasons for an administrative decision should not be read with an eye keenly attuned to discerning error (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272 per Brennan CJ, Toohey, McHugh and Gummow JJ), eyes should not be so blinkered as to avoid discerning an absence of reasons or reasons devoid of any consideration of a submission central to a party's case.

In this case, the interests of MS's grandchildren were not central to the appellant's case in the Tribunal. His own representations did not squarely raise those interests at all.

60    It is true that there are aspects of paragraphs 134 and 135 of the Tribunal's decision that are problematic. They appear to give priority to the interests of the nieces and nephews over those of MS's grandchildren, although it had no information whatsoever about the interests of the former, even information about whether they were indeed children. In contrast it did know that the appellant had a relationship with MS's grandchildren, including a good relationship with one of them, and it had some details such as babysitting, video calls, and the fact that they called him 'Little Pop'.

61    In light of this it is difficult to understand how, when the Tribunal comes at paragraph 135 to summarise its conclusion about the primary consideration of the best interests of minor children, it mentions the appellant's biological children, L and W, and the nieces and nephews, but not MS's grandchildren. This could be ascribed to be a mere slip in the wording. But another explanation is that the Tribunal irrationally gave more weight to the interests of the nieces and nephews and no weight to the interests of MS's grandchildren. While illogicality and irrationality were not raised as grounds of appeal, a defect of that kind in the Tribunal's decision could support a conclusion that it had overlooked or failed to give proper attention to the interests of MS's grandchildren.

62    On balance, however, we do not consider that the appellant discharged his onus of establishing that this is what occurred. The Tribunal's reasons evince an otherwise careful and accurate consideration of the evidence, including the Letter. It said at paragraph 134 that it had considered the interests of the grandchildren (among others) and given where that appears in its reasons, there is no basis to treat it as a mere ritual incantation. The Tribunal also referred specifically to the limited evidence as to the ages of the children, the nature of the appellant's relationship with them and how they may be affected by his removal. This displays an engagement with those matters that was more than formulaic and, as the primary judge said, is consistent with the evidence as a whole. As has been said, the Tribunal's express statement that it gave the impact on the nieces and nephews and MS's grandchildren only limited weight was open.

63    That limited weight explains the rolled up way in which the Tribunal referred to all those children in paragraphs 134 and 135, and as the primary judge said, that rolled up reference was consistent with the evidence taken as a whole. The Tribunal was not required to mention every piece of evidence before it: Applicant WAEE at [46]. Such details as about the appellant's relationship with the grandchildren as appeared in the evidence were not so abundant or compelling as to lead to an inference that the Tribunal's omission to mention them specifically in paragraph 135 must mean that it overlooked them. As the primary judge noted, the evidence did not indicate a parental role on the part of the appellant, or identify any particular likely effect on the grandchildren if the cancellation of the appellant's visa was not revoked.

64    Why, then, did the Tribunal not mention the grandchildren in paragraph 135, when it did refer to the nieces and nephews? The primary judge's view was that the Tribunal concluded that only the interests of the appellant's children and his nieces and nephews weighed in favour of revocation. That would indeed have been irrational, in light of the complete lack of information about the nieces and nephews and the presence of some information about the grandchildren. But, with respect to the primary judge, we consider that the better explanation is that the omission to mention the grandchildren was indeed a slip. It was a slip repeated at paragraph 164, where identical wording about the best interests of the children indicates that the phrase was simply copied from paragraph 135. But taken with paragraph 134, it is evident that the Tribunal did consider the interests of MS's grandchildren along with those of the nieces and nephews and decided as a group to give them some weight in favour of revocation, albeit limited weight. The appellant's written submissions accepted as much when they said that inferentially the Tribunal determined that revocation would be in the best interests of the group of relevant children that included the grandchildren. Reading paragraphs 134 and 135 together it is apparent that the Tribunal intended to refer to all of the children. As the appellant's written submissions said, that is the only construction that makes sense.

65    The Tribunal's written reasons were, with respect, deficient in that regard. But in light of the matters canvassed above, these are deficiencies in expression, rather than an absence of real consideration of the interests of MS's grandchildren. They do not constitute error of a kind that the Parliament is to be taken to intend to invalidate the Tribunal's exercise of power under s 501CA(4) of the Act. Therefore, the primary judge was correct to conclude that the appellant had not established jurisdictional error in relation to the Tribunal's consideration of the interests of MS's grandchildren. The appeal should be dismissed, with costs.

Associate:

Dated:    1 July 2022