Federal Court of Australia

Au v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 125

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The orders made by the Federal Court of Australia on 14 October 2021 be set aside and, in lieu thereof, it be ordered that:

(a)    a writ of certiorari issue quashing the decision of the second respondent made on 2 March 2021;

(b)    a writ of mandamus issue directing the second respondent to determine the applicant’s application for review according to law within 84 days; and

(c)    the first respondent pay the applicant’s costs of and incidental to the application.

3.    The first respondent pay the appellant’s costs of and incidental to the appeal, to be assessed in default of agreement in accordance with the Court’s Costs Practice Note (GPN-COSTS).

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

ADDITIONAL ORDERS

THE COURT ORDERS BY CONSENT THAT:

1.    Order 2(b) of the orders made on 2 August 2022 be varied so as to omit the words “within 84 days”.

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

REASONS FOR JUDGMENT

PERRY J:

1    I have read the separate reasons of Justice Derrington in draft. I respectfully agree with his Honour’s reasons for holding that the notice of contention fails. The Administrative Appeals Tribunal (Tribunal) plainly erred in applying s 501CA(4) of the Migration Act 1958 (Cth).

2    The real question is whether the primary judge erred in holding that this error was not material. I agree for the reasons given by Derrington J at [48]–[52] that the error is material and therefore jurisdictional in nature.

3    Finally, argument on the appeal proceeded on the basis that there is no residual discretion once the criteria prescribed by ss 501CA(4)(a) and (b) are met. This construction accords with the weight of authority of this Court (as O’Sullivan J explains at [82]–[87]), although the majority’s reasons in Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 96 ALJR 497 at [22] indicate that the High Court may take a different view. In any event, I agree with Derrington J at [62] that the result on this appeal would be the same irrespective of which construction of s 501CA(4) is correct and, in those circumstances, would refrain from making any further observations as to the proper construction of the provision.

4    It follows that I agree that the appeal should be allowed and the matter remitted to the Tribunal for determination according to law.

Associate:

Dated:    2 August 2022

REASONS FOR JUDGMENT

DERRINGTON J:

Introduction

5    Mr Au, who is a New Zealand national, arrived in Australia at the age of 15 in 1999. He has lived here ever since. On 12 May 2020 his visa was cancelled under s 501(3A) of the Migration Act 1958 (Cth) (the Act) on the grounds that he had failed the character test. He sought revocation of that cancellation decision under s 501CA(4). The Minister’s delegate determined that they were not satisfied there was another reason why the cancellation decision should be revoked and, accordingly, the power in s 501CA(4) was not enlivened. Mr Au sought review from the Administrative Appeals Tribunal (the Tribunal). In conducting its review the Tribunal did not address in any way whether it was or was not satisfied of the existence of a “another reason” for revocation for the purposes of s 501CA(4). Instead, it treated the matter as one of the exercise of a discretionary power to revoke or not revoke the cancellation decision. It concluded that in the exercise of its discretion it should not revoke it.

6    Mr Au sought judicial review of the Tribunal’s decision to this Court. The primary judge concluded that the Tribunal did not address the correct question, being whether it was satisfied that there was another reason why the cancellation decision should be revoked. However, her Honour held that the deliberative process engaged in by the Tribunal of ascertaining whether, in its discretion, the cancellation decision should be revoked was a parallel process to that required under the Act. Her Honour therefore held that the same result would have been reached had the statute been correctly applied such that the error was not material and that no jurisdictional error occurred.

7    Mr Au now appeals from the primary judge’s decision. The sole ground concerns whether the Tribunal’s failure to address the essential jurisdictional question of whether there was another reason for revocation for the purposes of s 501CA(4)(b)(ii) of the Act, amounted to a jurisdictional error.

Minister’s notice of contention

8    The Minister sought to uphold the decision of the primary judge on the basis that her Honour had erred in finding that the Tribunal had made a legal error by assuming its task was a “re-exercise” of a general discretion. It was submitted that the primary judge should have held that the Tribunal did not misapprehend the task before it as evidenced by the decision-making process.

Legislation

9    Given the narrow issues on this appeal it is only necessary to refer to s 501CA(4) of the Act. It provides:

(4)    The Minister may revoke the original decision [being the cancellation decision] if:

(a)    the person makes representations in accordance with the invitation; and

(b)    the Minister is satisfied:

(i)     that the person passes the character test (as defined by section 501); or

(ii)     that there is another reason why the original decision should be revoked.

10    Other sections of the Act will be referred to as necessary.

11    For the purposes of brevity in these reasons I will refer to the expression “another reason why the original decision should be revoked” by the shorthand, “another reason for revocation”.

Consideration

12    The formal decision of the delegate was as follows:

(b)    Mr AU has made representations about revocation of the visa cancellation decision in accordance with the invitation. I am not satisfied that Mr AU passes the character test (as defined by section 501). Nor am I satisfied that there is another reason why the original decision should be revoked. Accordingly, the power in section 501CA is not enlivened and Mr AU’s TY Subclass 444 Special Category (Temporary) visa remains cancelled. My reasons are set out in the attached Statement of Reasons.

13    The conclusion that “the power in s 501CA(4) is not enlivened” followed the delegate’s reasons which, in part, specifically addressed whether they were satisfied there was another reason for revocation. However, whilst it is apparent (not in the least from the formal decision) that the delegate was acutely aware that the task required by s 501CA(4) was to ascertain whether they were satisfied there was another reason for revocation, they nevertheless applied Ministerial Direction No 79 which was made under s 499 of the Act.

14    The terms of Direction No 79 include the following:

6. Preamble

6.1    Objectives

…

(3)    Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had his or her visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the discretion to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case.

(4)    The purpose of this Direction is to guide decision-makers performing functions or exercising powers under section 501 of the Act, to refuse to grant a visa or to cancel a visa of a non-citizen who does not satisfy the decision-maker that the non-citizen passes the character test, or to revoke a mandatory cancellation under section 501CA of the Act. Under section 499(2A) of the Act, such decision-makers must comply with a direction made under section 499.

…

PART C

13.    Primary considerations – revocation requests

(1)    Under subsection 501(3A) of the Act, 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 because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c)) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had his or her visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the discretion to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case.

(Emphasis added).

15    The dissonance between the terms of Direction No 79 and the Tribunal’s decision is apparent. The “discretion” referred to in the Direction is identified as one which is “enlivened” and, in the context of s 501CA(4), that can only be once the decision-maker is satisfied of the existence of another reason for revocation. If that circumstance is reached the Direction requires that, in the exercise of the discretion to revoke the cancellation decision, account be taken of the identified considerations. Conversely, it is undoubted that the delegate’s determination was directed to whether they were satisfied there was another reason for revocation and it was in the deliberation of that matter that account was taken of the specified considerations.

16    However, in this case, Mr Au had made the considerations in Direction No 79 matters which the delegate was required to take into account in forming the required state of mind. He did so by constructing his submissions to the Minister within the paradigm of the Direction’s structure and content. This is a regular feature in cases of this nature as I alluded to in Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 285 FCR 187, 201 – 202 [37] (Tohi):

It is also a regular feature of matters involving s 501CA that, once the cancellation decision has been made, the Minister, as she or he is required to do, contacts the erstwhile visa holder in writing and invites them to make representations. It appears to be the Department’s practice to send also a copy of the then current ministerial direction with the invitation. That often has the consequence that the subsequent representations are framed in accordance with the matters specified in the ministerial direction but without any indication as to whether they are referable to the formation of the relevant state of mind or to the subsequent exercise of discretion. In such circumstances, it may well be incumbent upon the Minister or a delegate when performing the function under s 501CA(4)(b)(ii) to take into account those representations even though they may be more correctly applicable to the exercise of the discretion if it is enlivened. This is not because of the operation of Direction No. 79 or the then current ministerial direction, but because the non-citizen has adopted one or more of the criteria in the relevant ministerial direction as the foundation of their representations.

17    The consequence of the adoption of that practice in this case was, as the learned primary judge found, that in attempting to apply Direction No 79, “the Tribunal conflated its evaluation of whether it was satisfied that there was another reason with what is described as re-exercising and weighing the discretion” (at PJ [60]). There is support for that conclusion from the several indications in the Tribunal’s reasons to the effect that it perceived that the decision under review was the exercise of a discretion, with the consequence that its task was to re-exercise it if necessary:

(a)    At [3] the Tribunal referred to the delegate having declined to reinstate the visa in his or her discretion.

(b)    At [4] the Tribunal member said, “My task is to re-exercise the delegate’s discretion afresh”. Later in that paragraph the Tribunal member indicated that the type of hearing implied the re-exercising of the discretion afresh.

(c)    At [29] the Tribunal member said, “I now turn to the factors relevant to re-exercising the discretion”.

(d)    After [29] the Tribunal’s reasons has the heading, “Re-exercising the discretion”.

(e)    At [30] the Tribunal member referred to his earlier decision in LJTZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 3356 in which he identified that in applying Direction No 79 the power in question was the exercise of the discretion to revoke and that the specific circumstances mentioned must be taken into account in the exercise of the discretion when it is enlivened.

(f)    At [49] the Tribunal member said, “All in all, I approach the re-exercise of the discretion on the basis that Mr Au’s risk of reoffending is moderate, that is, neither high nor low”.

(g)    Immediately prior to [61] of the reasons the heading, “Weighing up the discretion”, appears.

(h)    At [61] the Tribunal member stated that weighing up the discretion in that case had been particularly difficult.

18    In total the word, “discretion”, appears 11 times in the Tribunal’s reasons.

19    The learned primary judge below concluded (PJ [52]) that the manner in which the Tribunal approached its task was in error because it did not in terms or, on a fair reading of its reasons, in substance address itself to the conditions of the existence of the revocation power. Her Honour referred to the Minister’s submission that although there was no reference in the Tribunal’s reasons to its consideration of the subjective jurisdictional facts in s 501CA(4)(b)(i) and (ii), on a fair reading of its reasons, the Tribunal’s satisfaction on each of those issues might be inferred. However, her Honour concluded that it was plain that the Tribunal’s approach assumed that its task was to “re-exercise” a general discretion having regard to the considerations in Direction No 79 without giving any active consideration to the circumstances on which the exercise of that discretion is conditioned.

20    Despite finding that the Tribunal had not addressed itself to the correct question, her Honour concluded that its failure to do so was not material. Her Honour held that, had the correct issue been addressed, the same result would inevitably have followed.

Submissions advanced to this Court

21    The Minister, by his notice of contention, re-agitated the above issue before this Court. In support he submitted that the primary judge should have found that, notwithstanding the language adopted by the Tribunal, the Tribunal had asked itself the correct question when it searched for “another reason” under the Direction. It was submitted that because the Tribunal applied the Direction it necessarily followed that the Tribunal was looking for “another reason for revocation”. So the submission went (RS [16.1]), “[l]ooking for “another reason” was evident because the Direction required a balancing process of considerations on an application to revoke the cancellation decision”.

22    These submissions can be quickly rejected. There is nothing in the Tribunal’s reasons suggesting that it understood the correct question to be determined. As indicated above, it expressly directed itself to the exercise of what it perceived to be a discretion in s 501CA(4) as to whether it should or should not revoke the cancellation decision. It seems to be undoubted that when the Tribunal member referred to a “discretion”, he intended that to be an accurate description of the power in question.

23    Secondly, the express and repeated statements by the Tribunal member that he was exercising a discretion cannot be ignored. He is a Senior Member of the Tribunal and a member of the legal profession. As such, the distinction between a discretion and the formation of a state of satisfaction would have been readily understood. It is not reading the reasons too finely to attribute to the Tribunal an approach that it repeatedly said it was adopting.

24    It was also submitted for the Minister that the Tribunal’s reference to “re-exercising a discretion” should not be read as meaning the Tribunal was considering whether to exercise the discretion in s 501CA(4). It was submitted that as the Tribunal had before it the delegate’s decision in which the delegate had identified that the discretion had not been enlivened it must be taken as being aware that the issue before it was whether there was “another reason” to revoke the cancellation decision. That submission can also be readily rejected. It attempts to obfuscate the Tribunal’s error. The mere fact that the delegate correctly applied the statutory provisions does not generate any inference that the Tribunal did as well. That is particularly so in the face of the overwhelming evidence that the Tribunal misunderstood the nature of the task before it.

25    With respect, the Minister’s submissions fail to identify any error in the learned primary judge’s conclusion that the Tribunal misconstrued the task to which attention was required. It is beyond any reasonable doubt that the Tribunal member misunderstood the task required of him. The submissions to the contrary tend to diminish the overall veracity of the Minister’s case.

26    The Minister’s notice of contention fails. The matter must proceed upon the basis that the Tribunal erred in applying s 501CA(4). It did not seek to ascertain whether the subjective jurisdictional fact – being the satisfaction of the matters in s 501CA(4)(b)(ii) – existed but wrongly perceived that the exercise of power in issue was the discretion to revoke the cancellation decision.

The grounds of appeal

27    The remaining question is whether the fundamental error by the Tribunal in failing to address the correct question vitiated its decision.

Did the Tribunal address the substantively correct question?

28    The Minister submitted that, although the relevant opinion which was the pre-condition to the exercise of a statutory power must be formed on a correct understanding of the law, the Court will not find a jurisdictional error in the formation of a state of mind where it was formed by a “reasonable man who correctly understands the meaning of the law under which he acts”. In this respect reliance was placed on R v Connell; Ex parte Hetton Bellbird Collieries Ltd (1944) 69 CLR 407, 430. It was submitted that the Court looks to ascertain whether, in substance, the opinion required by the legislation has actually been formed. It was not immediately apparent why Counsel for the Minister took the Court to this authority. It rather supports the appellant’s submission and the trial judge’s conclusion in this case. That is, it is pellucid that the Tribunal did not correctly understand the law under which it acted. It wholly misunderstood the nature of the decision which is was required to reach.

29    However, the Minister’s submission had a secondary aspect to it. It seemed to be suggested that as the Tribunal took into account the matters articulated in Direction No 79, as did the delegate, it in substance formulated a state of mind to the effect that it was not satisfied that “another reason for revocation” existed. In pressing this submission it would appear that the Minister accepted that the references to the “discretion” in Direction No 79 may involve a deficiency in its terms. That view might be supported by reference to the terms of the replacement and cognate direction, being Direction No 90, which removes most, but not all, of the references to a “discretion” in relation to the exercise of power under s 501CA(4). Nevertheless, the Minister’s submission failed, with respect, to identify how the formation of a state of mind as to whether “another reason for revocation” exists was the cerebral equivalent of exercising a discretion not to revoke a cancellation decision.

30    The general nature of discretionary power is well understood. It was identified in the joint reasons of Gleeson CJ, Gaudron and Hayne JJ in Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194, 204-205 [19] (Coal and Allied Operations v AIRC) where their Honours noted that a “discretion” is a notion that signifies a number of different concepts, but generally referred to:

a decision-making process in which “no one [consideration] and no combination of [considerations] is necessarily determinative of the result”. Rather, the decision-maker is allowed some latitude as to the choice of the decision to be made. The latitude may be considerable as, for example, where the relevant considerations are confined only by the subject matter and object of the legislation which confers the discretion. On the other hand, it may be quite narrow where, for example, the decision-maker is required to make a particular decision if he or she forms a particular opinion or value judgment.

31    The identification by their Honours of the substance of a discretion as allowing some latitude was reflective of the definition of the “central sense” of a discretion articulated by Galligan D J in Discretionary Powers: A Legal Study of Official Discretion, Clarendon Press, Oxford,1986, p 21, where the learned author said:

A central sense of discretionary power may be put as follows: Discretion, as a way of characterizing a type of power in respect of certain courses of action, is most at home referring to powers delegated within a system of authority to an official or set of officials, where they have some significant scope for settling the reasons and standards according to which that power is to be exercised, and for applying them in the making of specific decisions.

32    The essence of Professor Galligan’s definition rightly identifies the breadth of the decision-maker’s scope for autonomy and freedom in relation to the standards by and reasons for which a power is exercised. Necessarily, the scope of a discretion may be affected by the nature, scope and purpose of the enactment which confers it by which considerations may appear which the decision-maker, in the proper exercise of the power, is obliged to take into consideration: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 39 – 40.

33    The importance of the type of discretion being considered is that the decision-maker’s autonomy extends to the outcome of a particular decision so long as it falls within the scope of the power in the sense that it is not unreasonable. One might regard a statutory obligation on a decision-maker to be satisfied of a particular matter as a condition precedent to the exercise of power as being far less than a discretion. Although the formulation of a state of mind equating to a satisfaction that a thing exists might involve elements of subjectivity in assessing the facts and circumstances relevant to the existence or otherwise of the thing, it cannot be said that whether the state of mind exists or not has any discretionary element to it. The formation of the state of mind might be regarded as the exercise of a discretion “in a sense” or “in a broad sense”: Coal and Allied Operations v AIRC at 205 [20]: however, the two activities do not involve the same mental process. Indeed, the difference in approach was referenced by their Honours in Coal and Allied Operations v AIRC in that paragraph where they said:

20    In the present case, the decision by Boulton J to terminate the bargaining period involved, in effect, two discretionary decisions. The first was as to his satisfaction or otherwise that the industrial action being pursued posed a threat for the purposes of s 170MW(3) of the [Workplace Relations Act 1996]. Although that question had to be determined by reference to the facts and circumstances attending the industrial action taken in support of claims with respect to a certified agreement, the threat as to which his Honour had to be satisfied was one that involved a degree of subjectivity. In a broad sense, therefore, that decision can be described as a discretionary decision. And if Boulton J was satisfied that there was a threat for the purposes of s 170MW(3), that necessitated the making of a further discretionary decision as to whether the bargaining period should be terminated.

34    So, even if the concept of a decision-maker being satisfied of a particular matter or thing can be described in a sense as being a discretion, there remains a distinction between it and a general discretion which might roughly equate to the qualitative difference between a “weak” discretion and a “strong” discretion respectively, as recognised by Dworkin R in Taking Rights Seriously, Harvard University Press, 1977, p 31 – 36.

35    It might also be appropriate to consider the distinction from the perspective of the type of remedial relief available in relation to the two types of powers. The exercise of discretionary power is subject to the full panoply of judicial review remedies whereas the review available in relation to a defective formation of a state of mind which operates as a jurisdictional fact is substantively different (ie as articulated in Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353 (Avon Downs)). As was held by Gummow ACJ and Kiefel J in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, 624–625 [38]–[39] (SZMDS):

[38] … The apprehensions respecting “merits review” assume that there was jurisdiction to embark upon determination of the merits. But the same degree of caution as to the scope of judicial review does not apply when the issue is whether the jurisdictional threshold has been crossed. …

[39] … Confusion of thought, with apprehension of intrusive interference with administrative decisions by judicial review will be avoided if the distinction between jurisdictional fact and other facts then taken into account in discretionary decision making is kept in view (footnotes omitted).

36    In that case their Honours were concerned with the operation of s 65 of the Act where the power to grant a visa is conditioned upon the Minister’s state of mind, being the satisfaction that the statutory criteria were met. The structure of s 65 is legally indistinguishable from s 501CA(4) in that the power to revoke in the latter section is conditioned upon the formation of a particular state of mind. Whether an error in the formation of that state of mind vitiates any subsequent exercise of power is determined in accordance with the principles articulated by the High Court in Avon Downs at 360, the relevant passage of which is set out in the reasons of O’Sullivan J. None of this is novel and is consistent with the manner in which courts have treated the vesting in the executive of a right to be satisfied of a particular matter or thing; see generally the discussion in EHF17 v Minister for Immigration and Border Protection (2019) 272 FCR 409. On this approach it is difficult to conclude other than that the forming a state of mind is, both functionally and legally, substantively different from exercising a general discretion.

37    It follows that the Minister’s submission that there was no difference between what the Tribunal did and what it ought to have done under s 501CA(4) should be rejected.

38    The resolution of this issue might be assisted by the majority’s judgment in the recent decision of Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 (Plaintiff M1/2021). At [22] the majority said:

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 the 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.

(Footnotes omitted).

39    The first sentence of this passage adopts a natural reading of s 501CA(4) to the effect that the discretion is enlivened once the required state of satisfaction is reached. However, in subsequent parts of the reasons the dichotomy between the state of mind and the discretion is not maintained with absolute clarity. Although the above observation supports my conclusion in this matter, as the issue was not entirely squarely addressed, it may be that the majority’s “considered obiter” should not be taken too far.

40    The Minister also relied upon the observations of McHugh J in Minister for Immigration and Multicultural Affairs; Ex parte Cohen (2001) 177 ALR 473, 481 [34]:

The applicant submits that the tribunal “misunderstood the nature of the opinion which [it] is to form”. He submits that the tribunal did not understand the true meaning of “disability” and “other serious circumstance” in the definition of “special need relative” in reg 1.03. But, assuming that the tribunal erred in determining the meaning of these expressions because it applied an erroneous precedent in determining the meaning of “disability” and “other serious circumstance”, it does not follow that it committed a jurisdictional error. Adopting an incorrect interpretation is not always synonymous with jurisdictional error. Nor does it make a difference to the validity of that proposition that the relevant tribunal has applied an erroneous precedent rather than adopting its own erroneous interpretation.

(Footnote omitted).

41    With respect, that decision does not assist. In the immediately following paragraph McHugh J accepted that the Tribunal had understood the question that it had to answer. In addition, his Honour observed that in the case before him the error was, if anything, an error of fact rather than one of law. He also observed that the making of an error of the nature under consideration was unlikely to be jurisdictional unless it was in relation to a jurisdictional fact. In the present case, the error made by the Tribunal did not have the same characteristics as that considered by McHugh J. Indeed, his Honour’s views tend to support the view that errors in relation to jurisdictional facts are more serious than those occurring in the exercise of a power which has been properly enlivened.

42    A further difficulty here is that the Tribunal did not address the correct question in any way. It simply did not attempt to engage with the statutory task. That is significantly different from the application of an incorrect meaning of a word or definition, the effect of which is of no relevance. Here the Tribunal did not reach any conclusion relevant to the decision which it was supposed to review.

43    From the foregoing rejection of the Minister’s submissions, it must be accepted that the Tribunal’s error was one of substance and not merely of form. In no way did it address the question of whether it was satisfied there was another reason why the cancellation decision should be revoked and the learned primary judge was correct to conclude this was so.

44    On that basis there is no need to address the appellant’s alternative submission that, if the Tribunal can be taken as having formed a state of mind relevant to s 501CA(4), it was vitiated by the Tribunal asking itself the wrong question or failing to address the question which the sub-section formulates as identified in Avon Downs at 360.

Appellant’s appeal on materiality

Does the materiality principle apply to jurisdictional fact error?

45    The appellant initially submitted that the primary judge erred in applying the principles concerning “materiality” as prescribed by the High Court in Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421, 445 [45]. So the submission went, materiality may be relevant and an essential feature of jurisdictional error, however, it is not an essential element of a jurisdictional fact error. In that respect, it was submitted that the task of assessing whether or not a jurisdictional fact exists is not confined by the principles of judicial review: Fastbet Investments Pty Ltd v Deputy Commissioner of Taxation (No 5) [2019] FCA 2073 [33]. The observations in that decision were reflective of those of Gummow ACJ and Kiefel J in SZMDS which are quoted above. They also echoed the observations of Gummow J in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611, 654 – 655, [138] – [139] and his subsequent comments in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165, 1176 [59] – [60].

46    Neither party was able to adduce to this Court any authority discussing the relevance of materiality in the assessment of whether an error of the type referred to in Avon Downs vitiates a state of mind required to be formed under a statute. However, the rationale for such a requirement is apparent. Were it otherwise it would have the consequence that parliament must be taken as intending that any error, no matter how minute or irrelevant, would vitiate a state of mind on which the exercise of a power is conditioned. One must pause before accepting that the legislature intended a provision to operate in that way. Where the parliament imposes the jurisdictional fact of a state of mind as the condition on which the power is exercisable, it can be taken as requiring that the state of mind so formed is in accordance with the statute and, inferentially, bereft of any of the vitiating errors identified in Avon Downs. Further, it ought be taken as intending that the state of mind will nevertheless be operative even if one of those vitiating errors has occurred if, had it not occurred, there could be no realistic possibility of the repository of power not forming that state of mind. It would be an unusual construction to assume that parliament intended that even the slightest irrelevant and inefficacious error would vitiate a subjective jurisdictional fact.

47    It follows that, as a matter of principle, the efficacy of a state of mind formed for the purposes of a jurisdictional fact is not vitiated if any error in the formation of the state of mind is not material in the sense that had the error not occurred there could have been no realistic possibility of a different outcome.

Was the Tribunal’s error material?

48    Ultimately, the real issue on appeal was whether the primary judge was correct to conclude that the Tribunal’s failure to address the correct question did not amount to an error which vitiated the required state of mind because it was not material to the outcome. In the consideration of this issue it can be assumed that the materiality of an error in the exercise of power which is sufficient to result in a jurisdictional error, is generally the same level of materiality which will vitiate an improperly formed state of satisfaction.

49    The requirements for establishing materiality as an essential element of jurisdictional error are now well established. The observations of Halley J in XSLJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1138 at [73] summarise the position as follows:

[73]     An applicant seeking judicial review must demonstrate that the alleged error of the decision-maker was material in the sense that there was a “realistic possibility” that the decision in fact made could have been different had the error not occurred: Minister for Immigration & Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3 (SZMTA) at [45] and [48]–[50] (Bell, Gageler and Keane JJ); MZAPC v Minister for Immigration & Border Protection [2021] HCA 17 (MZAPC) at [2]–[3] (Kiefel CJ, Gageler, Keane and Gleeson JJ). As the majority explained in MZAPC at [31], referring to the common law principle of statutory construction enunciated in the plurality’s earlier reasoning in Hossain v Minister for Immigration & Border Protection (2018) 264 CLR 123; [2018] HCA 34 at [17] –[30] (Kiefel CJ, Gageler and Keane JJ):

The principle enunciated is that a statute conferring decision-making authority is not ordinarily to be interpreted as denying legal force to every decision made in breach of a condition which the statute expressly or impliedly requires to be observed in the course of a decision-making process. The statute is instead “ordinarily to be interpreted as incorporating a threshold of materiality in the event of non-compliance”.

50    In ascertaining whether or not, had the decision-maker’s error not occurred, there could have been a realistic possibility of a different outcome the Court is forced to a counter-factual analysis of the Tribunal’s decision. This was expressed clearly in MZAPC v Minister for Immigration and Border Protection [2021] HCA 17 (MZAPC) (Kiefel CJ, Gageler, Keane and Gleeson JJ) at [37] – [39] where their Honours said:

[37]    Subsequently, in CNY17 v Minister for Immigration & Border Protection, Kiefel CJ and Gageler J referred to the determination of materiality by a court as involving ‘a question of counter-factual analysis to be determined by the court as a matter of objective possibility as an aspect of determining whether an identified failure to comply with a statutory condition has resulted in a decision that has in fact been made being a decision that is wanting in statutory authorisation’. The same point was made in different language by the Full Court of the Federal Court in BDY18 v Minister for Immigration & Border Protection, where it said that ‘[m]ateriality is concerned with the significance of the failure to conform to the statutory task entrusted to the decision-maker’ and that ‘[t]he inquiry is backward looking and concerns what the decision-maker did in the particular case’.

[38]    The counterfactual question of whether the decision that was in fact made could have been different had there been compliance with the condition that was in fact breached cannot be answered without determining the basal factual question of how the decision that was in fact made was in fact made. Like other historical facts to be determined in other civil proceedings, the facts as to what occurred in the making of the decision must be determined in an application for judicial review on the balance of probabilities by inferences drawn from the totality of the evidence. And like other counterfactual questions in civil proceedings as to what could have occurred — as distinct from what would have occurred — had there been compliance with a legal obligation that was in fact breached, whether the decision that was in fact made could have been different had the condition been complied with falls to be determined as a matter of reasonable conjecture within the parameters set by the historical facts that have been determined on the balance of probabilities.

[39]    Bearing the overall onus of proving jurisdictional error, the plaintiff in an application for judicial review must bear the onus of proving on the balance of probabilities all the historical facts necessary to sustain the requisite reasonable conjecture. The burden of the plaintiff is not to prove on the balance of probabilities that a different decision would have been made had there been compliance with the condition that was breached. But the burden of the plaintiff is to prove on the balance of probabilities the historical facts necessary to enable the court to be satisfied of the realistic possibility that a different decision could have been made had there been compliance with that condition.

(Footnotes omitted).

51    In the present case the application of the process identified in MZAPC is somewhat difficult. In cases where the decision-maker has identified for itself the correct question and issues to be determined but has erred in one respect, it is not an unreasonably difficult task to identify what was decided and then ascertain the impact, if any, the error had on the conclusion. Here, the position is quite different. The Tribunal member did not address the question of whether, on the material, there was “another reason for revocation”. Instead, it asked itself whether, as a matter of discretion, the cancellation decision should be revoked. As identified previously those two considerations are functionally and substantively different. The former does not seek to determine whether the cancellation decision should be revoked, but only whether there is another reason for doing so.

52    On one view, if the decision in MZAPC is applied to the circumstances of this case, it would necessitate the Court considering whether, on the facts and materials before the Tribunal, there was a realistic possibility that it could have concluded there was another reason for cancellation. That would require the Court, standing in the shoes of the decision-maker, considering the material and determining for itself whether such a reason existed. However, that is not the correct approach. Here, the correct question was not addressed. It should have been whether the delegate’s decision that the power under s 501CA(4) was not enlivened because they were not satisfied of the existence of another reason for cancellation, was the correct or preferable one. As mentioned, the Tribunal asked itself a different question. Therefore, in the application of the materiality principles the question is whether, if the Tribunal addressed the correct question, there was a realistic possibility of a different outcome. The answer must, of course, be in the affirmative. That is, the Tribunal would not have determined that the correct or preferable decision was that the discretion should be exercised not to revoke the cancellation decision. How it would have answered the entirely different question of whether there was “another reason for revocation” is impossible to ascertain. It follows that the failure to address the correct question was an error that, had it not occurred, meant that there was a realistic probability of a different outcome.

Conclusion

53    It follows from the foregoing that the learned primary judge ought to have concluded that the Tribunal’s error in failing to address the correct question amounted to a jurisdictional error in respect of which certiorari and mandamus ought to have issued.

54    The appeal should be allowed and the matter be remitted to the Tribunal for determination according to law.

Is there a residual discretion in s 501CA(4)?

55    In the course of the appeal some of the submissions touched upon the question of whether there existed any residual discretion in s 501CA(4) if a decision-maker concluded there was another reason for revocation. For the above reasons the appeal can be resolved on issues concerning the antecedent operation of s 501CA(4) and there is strictly no need to address this question. However, given that the issue was raised, it is appropriate to address it to some extent as it remains unresolved at a final appellate level.

56    On this issue there are inconsistent intermediate appellate decisions either way and it can be accepted that there are arguments for and against each proposition. Perhaps one of the more significant arguments in favour of a construction which accords the Minister a residual discretion involves the consideration of s 501CA(4) in the context of the Act as a whole. In particular, the conclusion that there is no residual discretion has a degree of dissonance or inconsistency with the drafting used in other important sections of the Act.

57    Section 501CA(4) is structured, both grammatically and physically, as conditioning the exercise of the power to revoke on the satisfaction of one of two subjective jurisdictional facts. If either is met the relevant power is enlivened. In Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 172 it was held that if the state of satisfaction is formed in relation to either of the matters in s 501CA(4)(b)(i) or (ii) the Minister must revoke the cancellation. In other words, the permissive word “may” is elided and the mandatory directive imposed by the word “must” is inserted. However, that construction, which alters the natural meaning of the words used by the parliament, sits in stark contrast to other sections of the Act. For instance, s 65 of the Act, being one of the Act’s central provisions, has a similar structure. There, the power of the Minister is conditioned upon the existence of a relevant subjective jurisdictional fact, being that the Minister is satisfied the relevant criteria prescribed for the granting of any particular visa have been met. It is relevant that the Act provides that if the Minister is so satisfied, a visa “must” be granted. Conversely, the section specifically provides that if the Minister is not so satisfied they are to refuse to grant the visa. One might have thought that had s 501CA(4) been intended to operate in a similar fashion, the legislature might have utilised the same mandatory language.

58    Reference can also be made to s 501 which is central to the suite of provisions dealing with cancellation on character grounds. Sections 501(1), (2) and (3) makes provision for the Minister to exercise a power on the satisfaction of the subjective jurisdictional facts specified. If the state of satisfaction is reached the power to act is granted in discretionary terms by use of the word “may”. There is no suggestion that in those sections the word “may” does not have its ordinary meaning. By comparison s 501(3A), which partially initiates the operation of s 501CA(4), mandates the cancellation of a visa by use of the word “must” when the Minister is satisfied of the specified matters. Given the judicious and deliberate use of the words “may” and “must” in this provision, which is closely associated with s 501CA(4), the assumed misuse of the word “may” in s 501CA(4) is unlikely and would be significantly inconsistent.

59    Another example can be found in s 91WA which also adopts a similar structure in that the power is conditioned on the satisfaction of a relevant subjective jurisdictional fact. There, the directory word “must” is used to compel action where the jurisdictional fact is satisfied. Again, it is somewhat pellucid that the legislature has specifically provided for those occasions where the satisfaction of a jurisdictional fact enlivens a mandatory obligation for the Minister to act. This tells strongly against the suggestion that the word “may” should be elided and replaced with “must” in s 501CA(4).

60    At a greater level of generality the Act uses the words “may” and “must” frequently throughout its provisions. It is very difficult to discern in the use of these words any occasion where the section in which they are used should be construed such that they might have other than their natural meaning. This suggests a legislative intention to use them deliberately. “May”, when used in an instructional sense, denotes a discretion or permission to undertake the act. When the word “must” is used, the legislature intends that the identified conduct is obligatory or mandatory. From this there is simply no reason to suggest that the legislature’s uses of these words are other than intentional.

61    It may well be that the interpretative difficulties around s 501CA(4) have their origin in the manner in which it has historically been applied by the Department. Rather than adopting the approach that the identification of another reason for cancellation triggers a discretion, the Department identifies the several reasons for revocation and those against it and assesses their relative weight. Over time the Courts have, in effect, accorded a Chevron deference to this application of the section: Chevron USA Inc v Natural Resources Defense Council Inc 467 US 837 (1984) as discussed in Tohi at 201 [36]. On the other hand, the observations of the majority in Plaintiff M1/2021 [22] may have settled the matter the other way.

62    In any event, there were no submissions addressed to this Court of any substance concerning the proper construction of the word “may” where it appears in s 501CA(4). Nevertheless, even if the correct interpretation is that there is no discretion vested in the Minister on the satisfaction of a jurisdictional fact, that does not alter the observations above that a consideration of whether there exists “another reason” is substantively different to whether or not a power should be exercised.

Associate:    

Dated:    2 August 2022

REASONS FOR JUDGMENT

O’SULLIVAN J:

Introduction

63    The appellant is a citizen of New Zealand, born on 5 July 1983 and is now 38 years old. He moved to Australia at the age of 15 and held a class TY subclass 444 special category (temporary) visa (visa).

64    Commencing from about April 2003 through to April 2020, the appellant was convicted of a number of offences. In April 2020, he was convicted for various offences involving possession of drugs, unlawful use of a motor vehicle and breach of bail. The sentence included a term of imprisonment of 13 months.

65    On 12 May 2020, the appellant’s visa was cancelled by the Minister pursuant to the mandatory cancellation provisions in s 501(3A) of the Migration Act 1958 (Cth) (Act) on the basis that the appellant failed the character test. A person does not pass the character test if, amongst other things, the person has a substantial criminal record. A person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more: ss 501(6)(a), 501(7)(c) of the Act.

66    Section 501CA(4) confers power on the Minister to revoke a visa cancellation if:

(a)    the person makes representations in accordance with the invitation; and

(b)    the Minister is satisfied:

(i)    that the person passes the character test (as defined by section 501); or

(ii)    that there is another reason why the original decision should be revoked.

67    There is no issue that on or about 14 May 2020, the appellant requested revocation of the mandatory cancellation of his visa pursuant to s 501CA(4) of the Act and made representations to the Minister.

68    There is also no issue that the appellant did not pass the character test.

69    On 8 December 2020, a delegate of the Minister determined not to revoke the mandatory cancellation of the appellant’s visa on the basis that the delegate was not satisfied that the appellant passed the character test nor was the delegate satisfied there was “another reason” why the original cancellation decision should be revoked.

70    On 16 December 2020, the appellant applied for review of the delegate’s decision in the Administrative Appeals Tribunal (Tribunal). Section 500(6L) of the Act provides that the Tribunal’s decision must be delivered prior to the expiry of the 84th day following the application for review. On 2 March 2021 (the 84th day), the Tribunal delivered an oral decision in which it affirmed the delegate’s decision. Written reasons were provided on 4 March 2021.

71    On 6 April 2021, the appellant sought judicial review of the Tribunal’s decision in this Court alleging jurisdictional error pursuant to s 476A(1)(b) of the Act. Before the primary judge, the appellant relied on six grounds. The primary judge dismissed the application and it is from that decision that the appellant now appeals.

Notice of appeal

72    The notice of appeal alleges one ground:

The Court below erred in finding that the Second Respondent’s failure to ask itself an essential jurisdictional question, being whether it was satisfied that there was another reason for revocation for the purposes of s 501CA(4)(b)(ii) of the Migration Act 1958, was not material.

73    The respondent filed a notice of contention comprising one ground:

The learned judge erred by finding that the Tribunal had made a legal error by assuming its task was a ‘re-exercise’ of a general discretion. The learned judge should have held that the Tribunal did not misapprehend the task before it as evidenced by the decision making process undertaken by the Tribunal.

74    The issue in this appeal is reduced to one question, which is whether by asking itself the wrong question, the Tribunal’s decision is vitiated by jurisdictional error.

Section 501CA(4) & Direction 79

75    Section 501CA provides in part:

(1)    This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.

…

(3)    As soon as practicable after making the original decision, the Minister must:

(a)    give the person, in the way that the Minister considers appropriate in the circumstances:

(i)    a written notice that sets out the original decision; and

(ii)    particulars of the relevant information; and

(b)    invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.

(4)    The Minister may revoke the original decision if:

(a)    the person makes representations in accordance with the invitation; and

(b)    the Minister is satisfied:

(i)    that the person passes the character test (as defined by section 501); or

(ii)    that there is another reason why the original decision should be revoked.

76    Pursuant to s 499 of the Act, the Minister may give written directions to a person or body having functions or powers under the Act if the directions are about the performance of those functions or the exercise of those powers: s 499(1)(a) and (b) of the Act. It is mandatory for a person or body to comply with the direction under s 499(1): s 499(2A) of the Act.

77    At the time the delegate considered the appellant’s request for revocation of the cancellation of his visa, the relevant direction was Direction No 79 - visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of the visa under section 501CA dated 20 December 2018 (Direction 79).

78    Direction 79 commenced on 28 February 2019. It makes repeated references to the exercise of a discretion throughout the document, in particular: Clause 5 - Contents; Clause 6.1 - Objectives; Section 2, Clause 7 - How to exercise the discretion; and relevant to this appeal, Part C, Clause 13 – Primary considerations – revocation requests.

79    Direction 79 was replaced by Direction 90 on 15 April 2021.

80    Clause 6 of Direction 79 is the preamble. Sub-clause 6.1 sets out the objectives of Direction 79. Sub-clause 6.1(3) reads in part:

… A non-citizen who has had his or her visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the discretion to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case.

81    Part C of Direction 79 (cls 13 and 14) addresses the considerations relevant to former visa holders in determining whether to revoke the mandatory cancellation of a non-citizen’s visa. Clause 13(1) includes the statement “where the discretion to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case”.

82    The repeated references to the exercise of a discretion in Direction 79, when considering whether to revoke the cancellation of a visa using the power enlivened by s 501CA(4) of the Act, is contrary to both single judge and Full Court authority of this Court holding that:

(a)    Notwithstanding the use of the word “may” in the chapeau to the section, once the requirements of s 501CA(4) are met, the Minister must revoke the cancellation of the visa; and

(b)    There is no residual discretion such that there is a single and not a two-stage test.

83    In Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166; (2016) 153 ALD 338, North ACJ dealt with the construction of s 501CA(4) at [26]-[38]. It had been argued for the applicant that s 501CA(4)(b)(ii) involves a two-stage process by which the Minister must first identify whether there are matters that he is satisfied are reasons why the original decision should be revoked, and second, exercise a residual discretion on the question of whether or not to revoke the cancellation. In contrast, the Minister had submitted that the section involves a single function by which the Minister must evaluate material before him in order to reach a state of satisfaction, and if reached, no residual discretion remains.

84    His Honour observed that the language of the section is unnecessarily ambiguous, observing that the use of the word “may” in the expression “may revoke” suggests a discretionary power on the Minister, whereas the expression in s 501CA(4)(b)(ii) that, “there is another reason why the original decision should be revoked” suggests either a single reason in favour of revocation or a conclusion in favour of revocation after consideration of factors for and against revocation: Gasper at [28].

85    His Honour concluded at [35]-[38] that:

35    … there is an overriding difficulty with the applicant’s construction which suggests that Parliament did not intend such a construction. If there is a residual discretion applicable in the case of s 501CA(4)(b)(ii), that same discretion would also apply to s 501CA(4)(b)(i). The result would be that, despite finding that a person does pass the character test, the Minister could nevertheless refuse to revoke the cancellation. This is an unlikely result. It is avoided if the approach explained in Hogan v Australian Crime Commission [2010] HCA 21 (Hogan) applies to the construction of s 501CA(4)(b).

36    Hogan concerned s 50 of the Federal Court of Australia Act 1976 (Cth), which provided that the Court may make a non-publication order as appears to the Court to be necessary in order to prevent prejudice to the administration of trust of justice or the security of the Commonwealth. French CJ, Gummow, Hayne, Heydon and Kiefel JJ said at [33]:

It may tend to distract attention from the particular terms of s 50 to describe the Federal Court as embarking upon the exercise of a "discretion" when entertaining an application under s 50. Once the Court has reached the requisite stage of satisfaction, it would be a misreading of s 50 to treat it as empowering the Court nevertheless to refuse to make the order, or to leave in operation the now impugned order. It would, for example, be an odd construction of s 50 which supported the refusal of an order under s 50 notwithstanding that it appeared to the Court to be necessary to make an order to prevent prejudice to the security of the Commonwealth.

[Footnotes omitted]

37    The proper approach was explained in the judgment of Gleeson CJ and McHugh J in Samad v District Court (NSW) [2002] HCA 24; (2002) 209 CLR 140 (Samad) at [32], as follows:

When a statutory power is conferred by the use of words of permission, there may arise a question whether the effect is to impose an obligation, or, at least, an obligation that must be performed in certain circumstances. Even where it is plain that the intention of the legislature was permissive, questions may arise as to the nature of the considerations that the person in whom the power is confided may be entitled or bound to take into account in the exercise of the discretion conferred. Issues of this kind are to be resolved as a matter of statutory interpretation, having regard to the language of the statute, the context of the relevant provision, and the general scope and objects of the legislation.

See also: Ward at 505; Finance Facilities Pty Ltd v Federal Commissioner of Taxation [1971] HCA 12; (1971) 127 CLR 106; and Mitchell v R [1996] HCA 45; (1996) 184 CLR 333.

38    The preferable conclusion is that s 501CA(4)(b)(ii) requires the Minister to examine the factors for and against revoking the cancellation. If satisfied, following an assessment and an evaluation of those factors, that the cancellation should be revoked, the Minister is obliged to act on that view. There is a single, not a two stage, process and the Minister does not have a residual discretion to refuse to revoke the cancellation if satisfied that it should be revoked …

86    It follows from his Honour’s reasoning that if there is no residual discretion applicable to s 501CA(4)(b)(ii), then the word “may” in the chapeau to the section can only mean “must”.

87    A number of Full Court authorities have followed Gasper in holding that there is a single stage process with no exercise of a residual discretion: Marzano v Minister for Immigration & Border Protection [2017] FCAFC 66 (2017); 250 FCR 548 (Collier J at [31], Logan and Murphy JJ agreeing) in which Collier J agreed with North ACJ’s analysis; Viane v Minister for Immigration and Border Protection [2018] FCAFC 116, (2018) 263 FCR 531 (Colvin J at [73]); Bettencourt v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCAFC 172 (Burley, Colvin & Jackson JJ at [27]-[28]); and Tohi v Minister for Immigration, Citizenship, Migration Services & Multicultural Affairs [2021] FCAFC 125 (Katzmann J at [3]; O’Bryan J at [100], Derrington J - contra at [51]); 285 FCR 187.

88    In Tohi Derrington J at [51] expressed the view that there was a two-stage approach applicable to s 501CA(4). His Honour said:

With great respect to those who hold a contrary view, the suggestion that s 501CA(4) should be read as if the obligation to form a relevant state of satisfaction and the discretionary power should be assimilated into the one exercise of power should be rejected:

(1)    It is contrary to decisions of the Full Court of this Court where the point was specifically considered and decided: Ali at 641 – 648 [39] – [49]; Guclukol v Minister for Home Affairs (2020) 279 FCR 611 at 616 – 617 [16].

(2)    It is contrary to the natural reading of the section which not only identifies the two stage process but structurally isolates them by locating them in separate parts of the section.

(3)    Direction No. 79 as well as its progenitor iteration (Direction No. 65) are explicit in identifying the separate stages of satisfaction of a jurisdictional fact followed by the exercise of discretionary power, and that the latter is conditioned on the former. This Court should be cautious about adopting an approach which directly contradicts the clear and repeated expressions of legislative intent.

(4)    The recognition of the different elements of s 501CA is consistent with the High Court’s construction of the similarly structured s 65 of the Act: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165.

(5)    The conflation of the discrete parts of s 501CA(4) fails to have regard to the differences in which a vitiating error may occur in the process of forming a state of satisfaction as opposed to the exercise of discretion.

89    Katzmann J in the same case expressed the view that the opinion of Derrington J was contrary to the weight of authority in this Court. Her Honour said at [3]-[5]:

3.    The opinion expressed by Derrington J is contrary to the weight of authority in this Court. The weight of authority is to the effect that s 501CA(4) does not involve a two-stage decision-making process of the kind posited by his Honour with the decision-maker first determining whether they are satisfied that there is a reason to revoke the cancellation decision and only if so satisfied considering whether or not to do so: see Minister for Home Affairs v Buadromo (2018) 267 FCR 320 at [21] (Besanko, Barker and Bromwich JJ). An argument to the effect of his Honour’s construction was rejected by North ACJ in Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166; 153 ALD 338 at [26]–[38], a case in which the construction question was squarely raised, and the construction preferred by North ACJ was accepted as correct by at least two Full Courts in Marzano v Minister for Immigration and Border Protection (2017) 250 FCR 548 at [30]–[32] (Collier J, Logan and Murphy JJ agreeing at [59] and [60] respectively) and Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531 at [73]–[74] (Colvin J, Reeves J agreeing at [3]). The effect of these authorities is that the use of the modal verb “may” in the chapeau to s 501CA(4) does not confer a discretion on the Minister to determine whether or not to revoke the original decision if the Minister is satisfied that there is another reason why the original decision should be revoked. Rather, it confers a power to do so which must be exercised if the conditions in s 501CA(4)(a) and (b) are satisfied.

4    The reasons given by Colvin J in Viane at [73]–[74] essentially reflect the position taken in the earlier cases. They are compelling:

[I]f the Minister is satisfied that there is a reason why the cancellation decision should be revoked then, given the way in which s 501CA(4)(b) is expressed, the Minister must revoke. As the failure to meet the character test will be the only reason why a person’s visa will be revoked under s 501(3A), it would be strange if the Minister was satisfied for the purposes of s 501CA(4)(b)(i) that the person passed the character test, yet there remained a discretion whether to revoke. Such a construction would mean that the power to revoke could be withheld even though the Minister was satisfied that the basis on which the visa had been cancelled was not actually satisfied. Equally, it would be strange if the Minister found that there was another reason for the purposes of s 501CA(4)(b)(ii) why the original decision should be revoked, but nevertheless retained a discretion to refrain from revoking the cancellation of the visa.

Therefore, the opening words to s 501CA(4) are in all likelihood an example of those cases where “may” means “must”: Marzano at [31]; Julius v Lord Bishop of Oxford (1880) 5 App Cas 214; Finance Facilities Pty Ltd v Federal Commissioner of Taxation (1971) 127 CLR 106 at 134-135, 138-139 and Leach v The Queen (2007) 230 CLR 1 at [38]. If there remains a discretion once the Minister is satisfied as to one of the matters in s 501CA(4)(b) it would be a very narrow one that, in most circumstances, could not be reasonably exercised by refusing to revoke the original decision to cancel the visa.

5    In BCR16 v Minister for Immigration and Border Protection (2017) 248 FCR 456 at [22] Bromberg and Mortimer JJ were apparently of a similar opinion. While describing s 501CA(4) as a “discretionary power to revoke the cancellation”, their Honours observed that “in practical terms, the real discretionary considerations subsist in the terms of s 501CA(4)(b)(ii) – whether ‘there is another reason why the original decision should be revoked’”.

90    In Bettencourt at [26]-[27] the Court set out the statutory context of the Minister’s statutory power conferred by s 501CA(4) in the following terms:

26.    In decisions of this Court, the construction of the terms of s 501CA(4) which confer the statutory power entrusted to the Minister to revoke a visa cancellation decision has been informed by the mandatory steps that are required by the earlier provisions in s 501CA. In that regard, it is significant that the earlier provisions of s 501CA require the Minister to give written notice of the decision to cancel the visa and relevant information (being specific information about the person that would be the reason or part of the reason for making the original decision). They also require the Minister to invite the person whose visa has been cancelled to make representations to the Minister 'about revocation of the original decision'. These mandatory steps provided for by s 501CA inform what is contemplated to occur in respect of the statutory power conferred on the Minister by s 501CA(4). It is in that context that s 501CA(4) confers the power to revoke the earlier cancellation decision. It is a power that is conditioned upon the Minister forming a state of satisfaction, relevantly for present purposes 'that there is another reason why the original decision should be revoked'.

27.    Considered within the statutory context, the Minister's statutory power conferred by s 501CA(4) has been determined to have the following characteristics:

(1)    If representations are made to the Minister, a statutory obligation arises on the part of the Minister to form a state of satisfaction as to whether the person passes the character test or there is “another reason” why the original decision should be revoked.

(2)    The state of satisfaction must be formed by reference to the representations such that a failure to consider the representations as a whole would be a failure to consider a mandatory relevant consideration.

(3)    The individual matters raised in the representations are not each mandatory relevant considerations and therefore do not need to be brought to account in the making of the decision such that they must form part of the considerations that give rise to the required state of satisfaction.

(4)    However, a state of satisfaction that is formed without considering a substantial or significant and clearly expressed claim made in the representations that there is a particular reason why the visa cancellation decision should be revoked is not a state of satisfaction of the kind required by the statute.

(5)    Further, there must be a real and genuine consideration of each such substantial or significant and clearly expressed claim.

(6)    If the state of satisfaction is formed that there is “another reason” why the original decision cancelling the visa should be revoked then the Minister must revoke the cancellation.

As to these matters, see: Viane v Minister for Immigration and Border Protection [2018] FCAFC 116; (2018) 263 FCR 531 at [66]-[68], [73]-[74] (Colvin J, Reeves J agreeing); Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216; (2018) 267 FCR 643 at [41]-[45] (Rares and Robertson JJ), [62]-[63] (Flick J); Navoto v Minister for Home Affairs [2019] FCAFC 135 at [85]-[89] (Middleton, Moshinsky and Anderson JJ); Minister for Home Affairs v Omar [2019] FCAFC 188; (2019) 272 FCR 589 at [34]-[41] (Allsop CJ, Bromberg, Robertson, Griffiths and Perry JJ); GBV18 v Minister for Home Affairs [2020] FCAFC 17; (2020) 274 FCR 202 at [31]-[32] (Flick, Griffiths and Moshinsky JJ); Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CTB19 [2020] FCAFC 166; (2020) 280 FCR 178 at [15] (McKerracher, Kerr and Wigney JJ); and Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 125 at [3]-[4] (Katzmann J), [100] (O'Bryan J), [51] (Derrington J in dissent).

91    In Minister for Home Affairs v Buadromo (2018) 267 FCR 320 at [21] the Court (Besanko, Barker and Bromwich JJ) said of s 501CA(4):

… there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word “may” in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view: Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 338 at [38] per North ACJ; Marzano v Minister for Immigration and Border Protection (2017) 250 FCR 548 at [31] per Collier J with whom Logan and Murphy JJ agreed; but see Falzon v Minister for Immigration and Border Protection (2018) 262 CLR 333 at [74] per Gageler and Gordon JJ …

92    However, there is also Full Court authority to the contrary: Ali v Minister for Home Affairs [2020] FCAFC 109; (2020) 278 FCR 627 at 641 [39] (Collier, Reeves and Derrington JJ).

93    In Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17, which was decided on 11 May 2022, the High Court said:

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.

(Footnotes removed)

94    Upon reviewing the transcript of the appeal and the judgment in Plaintiff M1/2021, the issue of whether or not the word “may” in the chapeau to s 501CA(4) means “must” was not argued. As the Full Court observed in Buadromo and as Katzmann J observed in Tohi, the weight of authority in this Court is to the effect that s 501CA(4) involves a single decision-making process such that the word “may” in the chapeau to s 501CA(4) means “must”.

95    I do not read the High Court in Plaintiff M1/2021 as saying at [22] that s 501CA(4) involves a two-stage decision-making process with the second stage being the exercise of a residual discretion. The footnoted authorities in [22] of the judgment do not address that point nor does the High Court address the line of Full Court authority holding that there is a single decision-making process as opposed to a two-stage decision-making process, the second stage being the exercise of a residual discretion.

96    In those circumstances, I proceed on the basis of a single stage decision-making process in s 501CA(4).

97    Consistent with Bettencourt, and the weight of the Full Court authority before the primary judge and on appeal, the parties proceeded on the basis that the Minister does not retain a residual discretion to revoke a visa cancellation if satisfied of the jurisdictional facts prescribed by s 501CA(4)(a) and (b): Au v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1240 (Reasons) at [48].

98    In passing, I note that the expression, “real and genuine consideration” in subparagraph (5) of the passage from Bettencourt, was the subject of the High Court’s judgment in Plaintiff M1/2021 at [26]. The position is that the decision-maker is required to read, identify, understand and evaluate the applicant’s representation with the requisite level of engagement by the decision-maker with the representations occurring within the bounds of rationality and reasonableness: Plaintiff M1/2021 at [24]-[25].

The primary judge’s reasons

99    Notwithstanding the application for review before the primary judge relied on six grounds, this appeal only concerns ground six before her Honour, which alleged that the Tribunal fundamentally misunderstood the statutory task it was required to perform.

Background and the Tribunal’s Reasons (TR)

100    The primary judge set out the relevant background in the Reasons at [5]-[10], before dealing with s 501CA(4) and the Tribunal’s decision.

101    Her Honour identified in her Reasons at [15] that the Tribunal had described its task at TR [4] in the following terms:

My task is to re-exercise the delegate’s discretion afresh. Hearing the matter on the evidence adduced before me, I must decide whether to set aside the decision under review or affirm it. I have conducted what is known as a de novo hearing of the merits. This type of hearing implies that in re-exercising the discretion afresh, I may set aside the decision under review notwithstanding the absence of any discernible error in the delegate’s reasons if this is the correct or preferable decision on the evidence before me. Equally, I may affirm the decision if that is [the] correct or preferable decision on the evidence before me notwithstanding the presence of an error in the delegate’s reasons.

Her Honour then noted that the Tribunal member, under the heading “Re-exercising the Discretion” had quoted from a previous decision of the same member of the Tribunal in LJTZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AAT 3356 at [30] when dealing with Part C of Direction 79: Reasons at [18].

102    The quote from LJTZ is set out below and was incorporated into the TR at [30].

In LJTZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs …, I set out the background to the Direction and I repeat what I said at paragraphs [24] – [28]:

“24    I now turn to apply Direction 79. The Direction consists of a preamble and Parts A, B, C. Of these parts, Part C is relevant and it identifies the considerations that I should take into account in determining whether to exercise the discretion to revoke the mandatory cancellation of the applicant’s visa. The Preamble makes it clear that where the discretion to consider revocation is enlivened, the decision maker must consider the specific circumstances of the case.

25    The Preamble refers to the Government’s commitment to protecting the Australian community from harm as a result of criminal activity or other serious conduct by “non-citizens”. The principles listed in paragraph 6.3 are of critical importance in furthering the objective of protecting the community. They reflect community values and standards with respect to determining whether the risk “non-citizens” pose is unacceptable.

26    The principles in question record that Australia has a sovereign right to determine whether non-citizens who pose a character concern should remain in Australia. Remaining in Australia is a privilege Australia confers on non- citizens in the expectation that they will remain law-abiding and will respect important institutions such as Australia’s law-enforcement framework and will not cause or threaten harm to individuals or the Australian community. It is recorded that the Australian community expects that visas will be cancelled by the Government if non-citizens commit serious crimes in Australia. It is also recorded that non-citizens who have committed a serious crime should generally expect to forfeit the privilege of remaining in Australia. In some circumstances, criminal offending and the harm that would be caused if it were to be repeated may be so serious that any risk of similar conduct in the future is unacceptable. In these circumstances even other strong countervailing considerations may be insufficient to justify not cancelling the visa. In addition, Australia has a low tolerance of any criminal conduct by people who have been participating in the Australian community for only a short period of time.

27    In exercising the discretion, I must follow the rules and guidelines set out in Direction 79. Information and evidence from independent and authoritative sources should be given appropriate weight. Primary considerations should generally be given greater weight than other considerations.

28    I turn now to Part C which is the relevant part. There are three primary considerations mentioned in Part C that I must consider; first, protection of the Australian community from criminal or other serious conduct; secondly, the best interests of minor children in Australia; and, thirdly, the expectations of the Australian community.”

103    The primary judge noted that the Tribunal’s repeated references to the exercise of a discretion under s 501CA(4) of the Act reflect the terms on which Part C of Direction 79 is framed and compared the approach taken by the delegate, which was to consider the applicant’s representations and the Direction 79 considerations, with the approach taken by the Tribunal. Her Honour noted that the Tribunal did not refer to s 501CA(4) in its reasons, nor direct its consideration to the ascertainment of the jurisdictional facts in s 501CA(4)(a) nor (b)(i) or (ii), moving instead to consider immediately the primary and other considerations in Direction 79, in the context of the applicant’s representations, in order to “re-exercise the delegate’s discretion afresh”: Reasons at [19]-[21].

104    Her Honour dealt with the Tribunal’s approach to each of the considerations in Direction 79: Reasons at [22]-[34].

Grounds of review before the primary judge

105    The primary judge considered each of the six grounds of review, setting out the relevant principles and noting a divergence in decisions of the Full Court as to whether the Minister retained a residual discretion in respect of the exercise of the revocation power in s 501CA(4), once the preconditions in s 501CA(4)(a) and (b) are established.

106    The primary judge noted the requirement for the Tribunal’s reasons to be read fairly and not with an eye keenly attuned to the detection of error: Reasons at [43]; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Others [1996] HCA 6; (1996) 185 CLR 259 at 272, 291 (Brennan CJ, Toohey, McHugh, Gummow JJ) citing Collector of Customs v Pozzolanic [1993] FCA 456; (1993) 43 FCR 280 at 286-287, before describing the Court’s assessment as to whether the statutory task had been undertaken in these terms: Reasons at [44].

The Court’s assessment of whether the statutory task has been undertaken is informed by reference to express statements by the decision-maker as to what was taken into account; evidence of the material that was placed before the decision-maker; the nature of the statutory obligation to give reasons, particularly the obligation in the present case for the decision-maker to set out the factual matters that the decision-maker considered material to his decision and the material evidence; the content of the reasons, that is the manner in which the reasons are expressed; and the character and content of the matters raised by the representations that are alleged not to have been brought to bear in forming the required state of satisfaction: Bettencourt at [32]. The Court will recognise that there is no obligation upon the Minister to refer to every piece of evidence or every contention: ETA067 v The Republic of Nauru [2018] HCA 46; (2018) 92 ALJR 1003 at [13] (Bell, Keane and Gordon JJ).

107    The primary judge considered ground six first: Reasons at [46]-[62], which is that the Tribunal’s decision, dated 2 March 2021, is affected by jurisdictional error because the Tribunal fundamentally misunderstood the nature of the statutory task it was required to perform: Reasons at [35], [47].

Error of law

108    After finding that there was no issue that the conditions in s 501CA(4)(a) had been met and the condition in s 501CA(4)(b)(i) had not been met, the only remaining issue was whether the statutory power had been enlivened. In the circumstances, that depended on whether, after considering the applicant’s representations and the various matters set out in Direction 79, the Tribunal was satisfied that there was “another reason” why the original decision should be revoked: Reasons at [53]-[55].

109    The primary judge noted that satisfaction as to “another reason” to revoke the visa cancellation was a precondition to the valid exercise of the power to revoke contained in the chapeau to s 501CA(4). Her Honour found that “Crucially”, the Tribunal had not turned its mind to the issue of whether it was satisfied “… as to ‘another reason’ to revoke the visa cancellation” as a precondition to the valid exercise of the power to revoke contained in the chapeau of s 501CA(4). That was so whether “… the evaluative task required to be undertaken by s 501CA(4)(b)(ii) was determinative” or “… the Tribunal had to reach the requisite state of satisfaction in respect of s 501CA(4)(b)(ii) before turning to consideration of the residual discretion”: Reasons at [55].

110    In considering the question of the Tribunal not turning its mind to this issue, her Honour considered that the Tribunal’s approach “… had assumed its task was a re-exercise of a general discretion, having regard to the considerations in Direction 79, but had not given any active consideration to the conditions on which the exercise of any such discretion is conditioned particularly s 501CA(4)(b)(ii)”. That being the case, the primary judge found that the Tribunal had made an error of law: Reasons at [55] - [57].

Materiality

111    As to materiality of the error of law, the primary judge continued by referring to the “breadth” of the standard inherent in the concept of “another reason” and the requirements for the Tribunal to observe Direction 79.

112    Her Honour held that the Tribunal’s error did not result in the applicant losing a realistic possibility of a different outcome because the process undertaken by the Tribunal was, in substance, what was required: Reasons at [56]-[57], citing Viane (2018) 263 FCR 531 at [30]-[31] (Colvin J, Reeves J agreeing).

113    Her Honour continued by explaining that the standard inherent in the concept of “another reason” in s 501CA(4)(b)(ii) involves matters of opinion, value judgement and policy which accords a degree of decisional freedom to the decision-maker: Reasons at [58], citing Ali v Minister for Home Affairs (2020) 278 FCR 627 at 664-665 [110] (Collier, Reeves and Derrington JJ).

114    After referring to the observations of Derrington J in Tohi at [37] of that decision, the primary judge considered at [60] what the Tribunal did in these terms:

60.    ... The Tribunal conflated its evaluation of whether it was satisfied that there was another reason with what it described as re-exercising and weighing the discretion. The statement of facts, issues and contentions lodged by the Minister stated that “the key issue for the Tribunal is whether there is another reason why the cancellation decision should be revoked for the purposes of subparagraph 501CA(4)(b), having regard to the primary and other considerations contained in Part C of Direction 79. This involves an evaluative process, requiring the Tribunal to examine factors for and against revoking the cancellation, and an assessment and evaluation of those factors leading to the formation of a view as to whether the cancellation should be revoked: Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 337; [2016] FCA 1166 at 38 per North ACJ”. In substance that is what the Tribunal did.

115    The primary judge considered that the Tribunal had engaged in the deliberative process of evaluation required of it in s 501CA(4)(b)(ii) by reference to Direction 79 and the way the appellant had framed his case. Her Honour found it was implicit in the Tribunal’s conclusion that the Tribunal had expressly approached its task through the lens of s 501CA(4)(b)(ii). Her Honour considered there was no realistic possibility that the Tribunal would have been satisfied that there was “another reason” to revoke the visa cancellation: Reasons at [61].

116    Since the primary judge considered there was no realistic possibility that the Tribunal could have arrived at a different outcome, namely that there was another reason sufficient to enliven the statutory power to revoke the visa cancellation had it in fact asked itself the right question, then notwithstanding the Tribunal made an error of law, it was not material and therefore not jurisdictional in nature. It was on that basis that her Honour dismissed the application for review of the Tribunal’s decision.

The submissions on appeal

117    The parties’ written and oral submissions may be summarised as follows.

Appellant’s submissions (AS)

118    The appellant refers to the primary judge’s findings at [55]-[56], to which I have referred above, and on that basis submits that the Tribunal did not form a state of mind responsive to the question of whether there was another reason for revocation such that the refusal to exercise the statutory power in s 501CA(4)(b)(ii) was made without the necessary statutory authority.

119    Accordingly, the appellant’s submission is that because the Tribunal asked itself the wrong question, the Tribunal’s state of mind that it was not satisfied the applicant met the criteria in s 501CA(4), was vitiated by error. The appellant refers to the statement by Dixon J (as his Honour then was) in Avon Downs Pty Ltd v Commissioner for Taxation (Cth) [1949] HCA 26, (1949) 78 CLR 353 at 360 in support of this submission: that is, the Tribunal never came to a state of mind which was responsive to the statutory question, namely, whether there was “another reason” for revoking the visa cancellation decision. As a consequence it did not carry out, in the case of s 501CA(4)(b)(ii), the evaluative task in accordance with Direction 79. See also the discussion by Derrington J in EHF17 v Minister for Immigration and Border Protection [2019] FCA 1681; (2019) 272 FCR 409 at 423-426 [51-[58].

120    The appellant continues that the Tribunal made no express finding as to whether it was (or was not) satisfied that “another reason” for revocation existed and the concept of “another reason” was not mentioned in the Tribunal’s reasons: AS at [17]. Rather, the appellant submits that the Tribunal was focused on the exercise of a discretionary revocation power: AS at [18].

121    The appellant summarises its submission by submitting: AS at [19]:

… The Appellant is not seeking to vitiate the Tribunal’s putatively formed stand of non-satisfaction that there was “another reason” for revocation. Rather, the Appellant alleges that the Tribunal formed no state of mind, putative, vitiable or otherwise, as to whether there was “another reason” for revocation as required by s 501CA(4)(b)(ii).

122    As an alternative submission, the appellant submits: AS at [21]:

… even if the Tribunal is taken to have putatively reached a state of non-satisfaction that there was “another reason” for revocation in consequence of its ultimate non-revocation decision, then that putative state of mind was vitiated as a result of the Tribunal failing to address itself to the correct statutory question.

Materiality

123    The appellant submits materiality is not relevant in determining whether the Tribunal formed a state of mind responsive to the essential statutory question, or its failure to ask itself the essential statutory question. Rather, because the decision-maker never addressed the statutory question of whether there was “another reason”, no counter-factual could be considered. As such, any review which proceeded on the basis that the decision-maker had addressed the statutory question would thwart Parliament’s intention in differentiating between provisions which confer a discretion on the one hand, and those which require an evaluative task on the other. In support of the submission, the appellant refers to Nguyen v Minister for Home Affairs [2019] FCAFC 128; (2019) 270 FCR 555 at 569 [49] as authority for the proposition that a decision maker’s misapprehension of the power being exercised is a material error on the basis that the error is a fundamental error and could have affected the decision.

124    The appellant also refers to DQM18 v Minister for Home Affairs [2020] FCAFC 110; (2020) 278 FCR 529 at 553-554 [115] (Bromberg and Mortimer JJ):

Further, the exercise to be undertaken by the reviewing court is not to be undertaken by reference to the subjective conclusions reached by the decision-maker herself or himself as part of the impugned decision. Otherwise, where there are emphatic adverse findings in a particular decision, then even egregious breaches of an “inviolable” limitation (eg obvious misconstruction of a statute; obvious denial of procedural fairness) would be held not to be an error of a jurisdictional kind because the subjective state of mind of the particular decision-maker, imputed by the Court on the basis of the rest of the decision-maker’s reasons, would prevail in the materiality analysis. The proposition is not that a decision-maker is free to contravene an inviolable limitation on her or his exercise of power so long as she or he makes her or his findings so emphatic that a reviewing court can say that no matter what the error, the decision-maker in question would not have changed her or his mind. That would effectively immunise decisions from scrutiny on judicial review. We do not consider that was the intent of the majority’s statement of principle in SZMTA, for that would indeed overthrow a considerable amount of the jurisprudence of that Court itself.

First respondent’s submissions (RS)

125    The Minister’s submission addressed both the notice of contention and the appellant’s submissions.

Notice of contention

126    The notice of contention seeks to vitiate the finding of an error of law on the basis that the Tribunal carried out the evaluative task.

127    The first respondent submits that the primary judge erred in finding the Tribunal committed an error of law on two bases. First, it submits that rather than finding that the Tribunal considered its task as re-exercising a general discretion “without giving active consideration to the conditions on which the exercise of any such discretion is conditioned”, her Honour should have said “condition of which the exercise of any such power is conditioned”: Reasons at [56], RS at [15] (emphasis in submissions).

128    Second, the Minister submits that rather than finding that the Tribunal asked itself the wrong question, her Honour should have found that the Tribunal asked itself the correct question when searching for “another reason”. On that basis, her Honour should have found that because the basis upon which the power in s 501CA(4)(b)(ii) is conditioned upon the decision-maker being “satisfied” that there is “another reason” and that state of satisfaction was not reached, there was therefore no power to exercise.

129    I reject the first basis. In the passage of the Reasons to which the first respondent refers, it is clear that her Honour was referring to the exercise of the discretion to which the Tribunal had expressly directed itself.

130    As to the second basis, the first respondent highlights the Tribunal’s reference to the decision in LJTZ in its reasons and the incorporation of that decision as part of the reasons. Since LJTZ dealt with Part C of Direction 79 and concerned only the power to revoke in s 501CA(4) following a decision under s 501(3A), by incorporating it as a part of its reasons, the first respondent submits it may be inferred that the Tribunal understood that the matter involved the exercise of the power in s 501CA(4)(b)(ii) and the matters falling for consideration in Direction 79.

131    I do not accept the second basis. The issue is not whether the Tribunal understood the matter involved the exercise of the power in s 501CA(4)(b)(ii) and the matters falling for consideration in Direction 79. The issue is how the Tribunal approached its task in reaching, or not reaching, a state of satisfaction (as the case may be) for the purposes of this subsection.

Appellant’s submissions

132    The first respondent addresses the appellant’s submissions of an error of law by dividing them into three parts:

(1)    First, the Minister submits that there is no doubt that the Tribunal correctly understood the power it was required to consider: RS at [21];

(2)    Second, the reference by the Tribunal to the exercise of discretion is by no means fatal, indicating that its description of the power (which was never enlivened) “... was slightly blurred, but not wholly misunderstood”: RS at [28]; and

(3)    Third, at the conclusion of the “deliberative” process, the Tribunal understood that it could not revoke the cancellation decision because there was not “another reason” to do so: RS at [30].

133    On this third point, the Minister points to the Tribunal specifically considering the relevant considerations in Direction 79 before concluding, albeit under the heading “Weighing up the Discretion”, that an evaluation of the factors in the appellant’s favour did not outweigh the negative factors, both as to the seriousness of his conduct and the safety of the Australian community: TR at [64]. It points also to the member’s decision that on balance, given the evidence before him, the decision under review is affirmed.

134    As to the references in its reasons to exercising a “discretion”, the Minister submits this was an example of “looseness in language” and should not be read with an eye keenly attuned to the perception of error: Minister v Wu Shan Liang at 272, 291.

135    In support of this submission, the Minister refers to the oral decision made on the 84th day which reinforces the need for a degree of flexibility in considering the Tribunal’s reasons.

136    Finally, the Minister submits that any error by the Tribunal was not material, referring to MZAPC v Minister for Immigration and Border Protection [2021] HCA 17, (2021) 390 ALR 590, at [60] (Kiefel CJ, Gageler, Keane and Gleeson JJ) where their Honours said:

… Where materiality of a breach of an express or implied condition of a conferral of statutory decision-making authority is in issue in an application for judicial review of a decision on the ground of jurisdictional error, the onus of proving by admissible evidence on the balance of probabilities historical facts necessary to satisfy the court that the decision could realistically have been different had the breach not occurred lies unwaveringly on the plaintiff.

Consideration

137    The power in the Minister in s 501CA(4) is enlivened upon:

(a)    a person making representations in accordance with s 501CA(4)(a); and

(b)    the Minister being ‘satisfied’ of one of the matters in s 501CA(4)(b).

138    That state of satisfaction is necessarily subjective and may only be achieved in this case if the requirements in s 501CA(4) are met. The criteria in s 501CA(4)(b)(i) may be satisfied objectively in the sense that either the person does or does not pass the character test by reference to the objective criteria contained in, for example s 501(6)(a),(aa). It may also require an evaluative judgement, for example s 501(6)(b),(ba).

139    Whether or not the state of the satisfaction required for s 501CA(4)(b)(ii) is reached, is the subject of an evaluative exercise to be undertaken by the decision-maker, taking into account the representations of the applicant which are clearly articulated or which clearly arise on the materials before them: Plaintiff M1/2021 at [25] (Kiefel CJ, Keane, Gordon, Steward JJ); Minister for Home Affairs v Omar [2019] FCAFC 188; (2019) 272 FCR 589 at 602-604 [34], (Allsop CJ, Bromberg, Robertson, Griffiths, Perry JJ), and the matters in Direction 79: Gaspar at [38]-[39] (North ACJ); Viane (Colvin J at 64-79); and Marzano (Collier J at [32]).

140    It is only if the requirements in s 501CA(4)(a) are met, and the Minister is satisfied that either the person passes the character test, or there is “another reason” why the original decision to cancel the applicant’s visa should be revoked, that the power which resides in the Minister in s 501CA(4) is enlivened.

Error of Law

141    The appellant’s submissions rely on the Tribunal asking itself the wrong question, Dixon J (as his Honour then was) in Avon Downs (1949) 78 CLR 353 at 360 said:

But it is for the commissioner, not for me, to be satisfied of the state of the voting power at the end of the year of income. His decision, it is true, is not unexaminable. If he does not address himself to the question which the sub-section formulates, if his conclusion is affected by some mistake of law, if he takes some extraneous reason into consideration or excludes from consideration some factor which should affect his determination, on any of these grounds his conclusion is liable to review. …

142    In Craig v The State of South Australia [1995] HCA 58, (1995) 184 CLR 163, when considering the question of jurisdictional error on the part of an Administrative Tribunal, the High Court said at 179:

If … an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.

143    In Gedeon v Commissioner of the New South Wales Crime Commission and Ors [2008] HCA 43, (2008) 236 CLR 120 at 139 [43]-[44] the High Court said:

The expression “jurisdictional fact” was used somewhat loosely in the course of submissions. Generally the expression is used to identify a criterion the satisfaction of which enlivens the exercise of the statutory power or discretion in question. If the criterion be not satisfied then the decision purportedly made in exercise of the power or discretion will have been made without the necessary statutory authority required of the decision maker.

The concept appears from the following passage in the reasons of Latham CJ in R v Connell; Ex parte Hetton Bellbird Collieries Ltd (56):

“The subject matter with which the Industrial Authority deals is, inter alia, rates of remuneration. There is power to deal with this subject matter in respect of rates of remuneration which existed on the specified date only if the authority is satisfied that the rates in question are anomalous. Unless this condition is fulfilled, the authority cannot act – it is a condition of jurisdiction.”

144    It follows that if the “jurisdictional fact” does not exist, ie, in the context of this appeal, that a state of satisfaction that there is “another reason” why the original decision should be revoked does not exist, the Tribunal is not empowered to cancel the revocation of the appellant’s visa.

145    There is no assertion by the appellant that the Tribunal made any specific error when conducting its evaluative exercise in weighing up the primary and secondary considerations which is what it was required to do by s 499 of the Act and Direction 79. Rather, the appellant relies on the Tribunal member asking himself the wrong question.

146    The primary judge described the process adopted by the Tribunal as conflating its evaluation of whether it was satisfied there was “another reason” with what it described as the re-exercise of the discretion: Reasons at [60].

147    The point that emerges from the primary judge’s consideration of the approach taken by the Tribunal is that the power under s 501CA(4)(b)(ii) is not enlivened without the requisite evaluation being conducted and satisfaction first being reached.

148    In Norbis & Norbis [1986] HCA 17; (1986) 161 CLR 513 at 518, Mason and Deane JJ, when considering appellate review of the exercise of judicial discretion in accordance with the principles in House v The King [1936] HCA 40, (1936) 55 CLR 499, said in relation to what comprises a “discretion”:

The principles have been constantly reiterated and applied by this Court in the form in which they were expressed in House v. The King (1936) 55 CLR 499:

"It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred."

The sense in which the terms "discretion" and "principle" are used in these remarks needs some explanation. "Discretion" signifies a number of different legal concepts: see, e.g_, the discussion in Pattenden, The Judge, Discretion, and the Criminal Trial (1982), pp. 3-10. Here the order is discretionary because it depends on the application of a very general standard - what is "just and equitable" - which calls for an overall assessment in the light of the factors mentioned in s. 79(4), each of which in turn calls for an assessment of circumstances. Because these assessments call for value judgments in respect of which there is room for reasonable differences of opinion, no particular opinion being uniquely right, the making of the order involves the exercise of a judicial discretion. The contrast is with an order the making of which is dictated by the application of a fixed rule to the facts on which its operation depends.

149    In Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at [19] Gleeson CJ, Gaudron and Hayne JJ said on the notion of what comprises “discretion”:

“Discretion” is a notion that “signifies a number of different legal concepts”. In general terms, it refers to a decision-making process in which “no one [consideration] and no combination of [considerations] is necessarily determinative of the result”. Rather, the decision-maker is allowed some attitude as to the choice of the decision to be made. The latitude may be considerable as, for example, where the relevant considerations are confined only by the subject matter and object of the legislation which confers a discretion. On the other hand, it may be quite narrow where, for example, the decision-maker is required to make a particular decision if he or she forms a particular opinion or value judgement.

(Citations omitted)

Their Honours continued at [21]:

Because a decision-maker charged with the making of a discretionary decision has some latitude as to the decision to be made, the correctness of the decision can only be challenged by showing error in the decision-making process. And unless the relevant statute directs otherwise, it is only if there is error in that process that a discretionary decision can be set aside by an appellate tribunal.

150    The High Court’s statement in both Norbis and in Coal and Allied Operations, which I have set out above, concerning the different approach to reviewing an exercise of discretion as opposed to the judicial review of a conclusion reached as a result of, in part, an evaluative exercise dictated by the application of fixed criteria, highlights the error into which the Tribunal fell when it approached its task under s 501CA(4)(b)(ii) as involving the exercise of a discretion.

151    I do not accept the Minister’s submission that references in the Tribunal’s reasons to exercising a “discretion” was an example of “looseness in language” and should not be read with an eye keenly attuned to the perception of error: Minister v Wu Shan Liang at 272, 291. The references to the exercising of a discretion within the Tribunal’s reasons may be attributed to the terms of Direction 79 and cannot properly be characterised as “looseness in language”.

152    As to the Minister’s submission that an error of this nature may be excused or otherwise explained by reference to an oral decision made on the 84th day, that submission also pre-supposes “looseness of language”. It is for the reasons given above that I do not accept this submission either.

153    The first respondent’s notice of contention, in which it sought to uphold the judgment on the basis that the primary judge erred in finding that the Tribunal had made a legal error by assuming its task was a “re-exercise” of a general discretion, should not be accepted. So too the Minister’s contention that the primary judge should have held that the Tribunal did not misapprehend the task before it, as is evidenced by the decision-making process undertaken by the Tribunal, cannot be accepted.

154    In the circumstances of this matter, the evaluative task required to be undertaken in reaching, or not reaching, a state of satisfaction is not the same as approaching the question from the perspective of the exercise of a discretion. Accordingly, it does not follow that because the Tribunal carried out the required task it did not make an error of law.

155    As noted above at [35], the parties proceeded on the basis that once the criteria in s 501CA(4) are met and the statutory power is enlivened, “may” means “must”. Her Honour found that the way in which the Tribunal approached its task was in error, no matter the view taken as to whether or not s 501CA(4) involved the exercise of a residual discretion, because it did not address itself to the conditions required to enliven the statutory power: Reasons at [52]. In so finding, the primary judge correctly identified the error of law.

Materiality

156    It being the case that the Tribunal asked itself the wrong question, such that there is an error of law, nonetheless it remains for the Court to be satisfied whether in the result the error was material such as to amount to jurisdictional error.

157    The appellant submitted the question of materiality does not arise. I do not accept that submission. Once the error of law was identified, it was always a question of whether that error of law was material.

158    Not all errors of law are fatal to a decision: Minister for Immigration and Border Protection v SZMTA & Anor [2019] HCA 3 at [45]-[47], (2019) 264 CLR 421, per Bell, Gageler & Keane JJ; Hossain v Minister for Immigration [2018] HCA 34, (2018) 264 CLR 123 at 130 at [17]-[31], per Kiefel CJ, Gageler and Keane JJ.

159    In SZMTA (2019) 264 CLR 421, at [45]-[47], Bell, Gageler and Keane JJ said:

Materiality, whether of a breach of procedural fairness in the case of an undisclosed notification or of a breach of an inviolable limitation governing the conduct of the review in the case of an incorrect and invalid notification, is thus in each case essential to the existence of jurisdictional error. A breach is material to a decision only if compliance could realistically have resulted in a different decision.

Where materiality is in issue in an application for judicial review, and except in a case where the decision made was the only decision legally available to be made, the question of the materiality of the breach is an ordinary question of fact in respect of which the applicant bears the onus of proof. Like any ordinary question of fact, it is to be determined by inferences drawn from evidence adduced on the application.

160    The primary judge referred to the standard inherent in the concept of “another reason” in s 501CA(4)(b)(ii) as involving matters of opinion, value judgement and policy which accords a degree of decisional freedom to the decision-maker and a degree of latitude on the choice of the decision to be made: Ali v Minister for Home Affairs (2020) 278 FCR 627 at 664-665 [110] (Collier, Reeves and Derrington JJ). By way of an analogy with the appellate review of the discretionary exercise of judicial power, her Honour referred to the observations of Gageler J: Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541 at 560-563 [43]-[49]: Reasons at [58].

161    The primary judge found at [61] that:

“The Tribunal engaged in the deliberative process of evaluation required of it in section 501CA(4)(b)(ii) by reference to the considerations in Direction 79 albeit as part of what it described erroneously as re-exercising de novo the discretion. … it traversed in a substantive way, the non-exhaustive list of considerations in Part C of Direction 79 by reference to the way the applicant had framed his case. It is necessarily implicit in the Tribunal’s conclusion that the decision under review should be affirmed, that, had it expressly approached its task through the lens of section 501CA(4)(b)(ii) there is no realistic possibility it would have been satisfied that there was another reason to revoke the visa cancellation”.

162    The primary judge found that although the Tribunal erred in its approach, its error was not jurisdictional because the appellant had not established the realistic possibility of the Tribunal arriving at a different outcome: Reasons at [62].

163    The appellant relies on DQM18, which was a case in which the Assistant Minister considered whether to revoke the cancellation of a visa. One of the issues was whether the Assistant Minister failed to carry out the substantive or evaluative task required. The Court held there was a failure to carry out the required task and that error was material such that the appellant was deprived of the realistic opportunity of a different outcome on his request for revocation of his visa cancellation.

164    The evaluative task carried out by the Tribunal under s 501CA(4)(b)(ii), when considering whether another reason exists, necessarily involves an exercise in giving the appropriate weight to the various considerations in Direction 79, as well as the applicant’s representations in view of the evidence available to the Tribunal.

165    As Derrington J has observed, the formulation of a state of mind equating to a satisfaction that a state of affairs exists, notwithstanding that reaching that state of satisfaction may involve an element of subjectivity, nonetheless does not involve the exercise of discretion.

166    Gageler J in Minister for Immigration v SZVFW made the point where he said at [49]:

49    The line is not drawn by reference to whether the primary judge's process of reasoning to reach a conclusion can be characterised as evaluative or is on a topic on which judicial minds might reasonably differ. The line is drawn by reference to whether the legal criterion applied or purportedly applied by the primary judge to reach the conclusion demands a unique outcome, in which case the correctness standard applies, or tolerates a range of outcomes, in which case the House v The King standard applies. The resultant line is not bright; but it is tolerably clear and workable.

167    The authorities are clear that it is not for this Court or for the primary judge to substitute its decision on the merits for that of the Tribunal. However, the evaluative process undertaken by the Tribunal in s 501CA(4)(b)(ii) demands a unique outcome. That outcome is not to be reached by approaching the matters to be considered against the background of, and with a view to, reaching a conclusion in the exercise of a discretion.

168    With respect to the primary judge, the Tribunal did not engage in the deliberative process of evaluation required of it by s 501CA(4)(b)(ii), so as to arrive at a unique conclusion. Instead, as the High Court noted in Coal and Allied Operations Pty Ltd, the Tribunal necessarily engaged in that exercise with some latitude as to the decision to be made.

169    That difference in the approach to the task at hand is fundamental. Had the Tribunal approached its task having asked itself the correct question, there is a realistic possibility of a different outcome on the appellant’s request for revocation of his visa cancellation. Under those circumstances it cannot be said that the error of law by the Tribunal was not material.

170    Accordingly, I consider the Tribunal made a jurisdictional error.

Conclusion

171    For these reasons, I would allow the appeal and dismiss the notice of contention.

Associate:    

Dated:    2 August 2022