Federal Court of Australia

Kumar v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 94

ORDERS

THE COURT ORDERS THAT:

1.    The appellant have leave to amend the notice of appeal including, insofar as the same is necessary leave to raise ground 1 specified therein, in terms of the draft amended notice of appeal, being the annexure marked “SJM-01” to the affidavit of Simon Josiah Mason filed herein on 17 April 2023.

2.    The draft amended notice of appeal stand for all purposes as an amended notice of appeal duly filed and served.

3.    The appeal be allowed.

4.    Order 1 of the orders made by the Court in QUD 275 of 2021 be set aside.

5.    In lieu of that order:

(a)    A writ of certiorari issue calling up into this Court the decision of the second respondent in proceeding 2020/6906 dated 21 July 2021 and quashing it.

(b)    A writ of mandamus issue requiring the second respondent to hear afresh and according to law the application by the appellant for the review by the second respondent of a decision by the first respondent to refuse to grant her son, Mr Shivneel Kamal Kumar a Return (Residence) (Class BB) visa under the Migration Act 1958 (Cth).

6.    The first respondent pay the appellant’s costs of and incidental to the appeal, including the application for leave to amend the appeal, to be fixed by a registrar on a lump sum basis if not agreed.

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

REASONS FOR JUDGMENT

THE COURT:

1    Mr Shivneel Kamal Kumar (Mr Kumar) is a citizen of the Republic of Fiji. He was born there in 1991. He first came to Australia with his family as a child in 1995. He remained here until 2000, when his family returned to Fiji.

2    Mr Kumar returned to live as a permanent resident of Australia as a 17-year old in 2008. On arrival, he was granted the required visa under the Migration Act 1958 (Cth) (the Act). That visa had a derivative quality in that it was based on his then dependency on a primary applicant member of his family who was granted a business visa.

3    A Department of Home Affairs movement history discloses that, thereafter, Mr Kumar made a number of short term voyages overseas. His last departure was for Fiji on 23 November 2018. The purpose of that visit was to visit his father over the Christmas-New Year period. His father was then acting as the Chief Justice of Fiji.

4    To return to Australia, Mr Kumar needed another visa. On 29 January 2019, he applied for a particular class of visa for which the Act provides, a Return (Residence) (Class BB) visa. A decision as to whether to grant him such a visa took quite some time. It entailed a request for and consideration of further information from him. Eventually, on 13 October 2020, Mr Kumar was advised that a delegate of the ministerial predecessor to the present first respondent, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Minister), had that day refused to grant him that visa. The basis of that refusal was that the delegate was not satisfied that Mr Kumar passed the “character test” for which s 501 of the Act provided and the delegate had exercised the discretion provided by that section in such circumstances to refuse to grant the visa.

5    Mr Kumar’s mother, Mrs Sunita Kumar, an Australian citizen, then sought the review of that visa refusal decision by the Administrative Appeals Tribunal (Tribunal). That application for review was, in terms of s 347 of the Act “properly made”. There has never been any controversy that Mrs Kumar, as a relative, was a person able to apply for such a review. She thus invoked the jurisdiction conferred on the Tribunal by s 348 of the Act to review the visa refusal decision. The Tribunal allocated Mrs Kumar a pseudonym, CWRG for the purposes of the review proceeding.

6    As is revealed by s 349(1) of the Act and subject to presently immaterial qualifications, in such a review the Tribunal is invested with “all the powers and discretions that are conferred by this Act on the person who made the decision”. Put shortly, the jurisdiction so conferred is a jurisdiction to make afresh a decision on the merits, be they of fact or law, of whether to grant the visa sought.

7    On 21 July 2021, for reasons furnished to Mrs Kumar that day, the Tribunal decided to affirm the Minister’s delegate’s refusal decision in respect of her son’s visa application.

8    Mrs Kumar then applied to this Court in its original jurisdiction for the judicial review of the Tribunal’s decision. On 21 November 2022, the Court dismissed that application: CWRG v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1382. In the course of the proceeding, the Court raised with the parties whether, having regard to s 37AF of the Federal Court of Australia Act 1976 (Cth), it was appropriate for Mrs Kumar to continue to be designated by the pseudonym, CWRG. The proceeding in the court had been instituted by her using that pseudonym. The Court concluded that it was not appropriate for her to continue to be so designated: Kumar (formerly CWRG) v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2022] FCA 1586.

9    Mrs Kumar has instituted an appeal against the dismissal of her judicial review application but not against the order removing her adoption of a pseudonym. In these circumstances, the appeal ought not to have been instituted by her using a pseudonym. On the hearing of the appeal, we raised with the parties whether there was any reason why Mrs Kumar ought to be afforded a pseudonym. No reason was offered and, more particularly, no application, supported by evidence, was made for the allocation to her of a pseudonym. Accordingly, we ordered that the appeal proceeding continue by her as appellant by her correct name.

10    As it did in the original jurisdiction, the Tribunal has, appropriately, filed a submitting appearance.

11    Mrs Kumar now seeks to rely upon grounds of appeal as specified in a draft amended notice of appeal as annexed to an affidavit of her solicitor, Mr S Mason of Corney & Lind. The proposed grounds are as follows:

1.    The learned primary judge erred in failing to find that the Second Respondent (Tribunal) had fallen into jurisdictional error by failing to consider the strength, nature and duration of the Appellant's son's ties to Australia, as well as the detriments/adverse impacts the Appellant's son and husband would sustain in consequence of the Appellant's son's visa being refused.

2.    The learned primary judge erred in failing to find that the Tribunal had fallen into jurisdictional error in connection with its findings and reasoning concerning the principle expressed in para 5.2(4) of Direction 90 (Direction) (concerning the level of tolerance that may be afforded non-citizens in respect of criminal conduct).

Particulars

L    The Tribunal fell into jurisdictional error in connection with its failure to appreciate or understand that, properly construed, the essence of the principle in para 5.2(4) of the Direction is that the degree of tolerance afforded to a non-citizen is commensurate with the duration of time (proportionately and otherwise) that the non-citizen has lived in and participated in/contributed to the Australia community and is not fixed by reference to whether or not the non-citizen falls within the description of a person who the Direction indicates may be afforded a “low’ or “higher’ level of tolerance (refer, esp, to [149]-[151] of the Tribunal's reasons).

2    The Tribunal fell into jurisdictional error in connection with its conclusion in [151] of its reasons (that “Thus, I am of the view that the Australian community's expectations are not fundamentally modified by the principles in paragraph 5.2(4) of the Direction”). That conclusion - despite being based on the Tribunal's reasoning/findings in [150] of its reasons - did not logically or rationally follow from what was said in [150] of the Tribunal's reasons and was thereby also lacking in an evident and intelligible justification.

3    The Tribunal fell into jurisdictional error in connection with its finding in [150] of its reasons that the Appellant had not lived most of his life in Australia. That finding was not logically, rationally or reasonably open on the materials and a proper construction of para 5.4(2) of the Direction.

12    The second ground raises no new issue. It takes up one of the grounds of review pressed without success in the original jurisdiction.

13    The other ground pressed in the original jurisdiction was that the Tribunal’s decision was unreasonable in the jurisdictional error sense. Doubtless reflecting the way the case was argued before him, the learned primary judge gave considerable and careful attention to it in his reasons for judgement. In the result, his Honour rejected it. This ground of review has not been resurrected as a ground of appeal.

14    In the form proposed, the first ground of appeal not only requires the grant of leave to amend but also leave to raise it at all. That is because it seeks to raise an issue which was not raised as a ground of review in the original jurisdiction. The need for such a grant of leave was frankly conceded by Mr McGlade of Counsel, who appeared for Mrs Kumar. The granting of leave was opposed by the Minister.

15    The basis upon which the Minister opposed the granting of leave was not prejudice occasioned by evidentiary embarrassment but rather an asserted absence of merit. In these circumstances, the parties accepted the Court’s suggestion that the convenient course to take was to treat submissions made in respect of the leave application in respect of proposed ground 1 as if they were submissions on any resultant appeal.

16    In O’Brien v Komesaroff (1982) 150 CLR 310 (O’Brien v Komesaroff), at 319, Mason J, with whom Murphy, Aickin, Wilson and Brennan JJ agreed, observed:

In some cases when a question of law is raised for the first time in an ultimate court of appeal, as for example upon the construction of a document, or upon facts either admitted or proved beyond controversy, it is expedient in the interests of justice that the question should be argued and decided …

[Emphasis added]

This same observation is pertinent in relation to the granting, at intermediate appellate level, of leave to raise a new issue. The observation made by Mason J in O’Brien v Komesaroff was one of those cited with approval by Gibbs CJ, Wilson, Brennan and Dawson JJ in Coulton v Holcombe (1986) 162 CLR 1, at 7 – 8, which, along with University of Wollongong v. Metwally (No 2) (1985) 59 ALJR 481, at 483, is a root authority on whether to grant leave to raise a new issue on appeal. To these might be added in this Court, Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424, at [37] – [38] and VUAX v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 238 FCR 588, at [46] – [48]. The point is that parties are expected to bring forward, in the original jurisdiction, the issues for determination. Absent good reason, and as been said in the past, a failure to require this reduces an exercise of original jurisdiction to nothing more than a “preliminary skirmish”. A corollary of that is that, often, a decisive consideration against granting leave to raise a new issue is that it may occasion unfairness to a respondent, because the new issue might have been addressed by evidence if raised at trial. A failure to adopt a restrained approach to the granting of leave to raise a new issue can be antithetical to the public interest of finality in litigation. As against that, a refusal to grant leave to raise a new issue can also perpetuate an injustice in the circumstances of a given case. As will be seen, the latter consideration looms large in the present case. It should be stated at once that this observation is no reflection whatsoever on the learned primary judge.

17    Our conclusion is not only that Mrs Kumar should have leave to amend the notice of appeal but also, insofar as the same is necessary, be granted leave to raise that ground, even though it raises an issue not raised in the original jurisdiction. Moreover, for reasons which now follow, our conclusion is that the appeal should succeed on ground 1 but only on ground 1.

Ground 1

18    As became clear in the course of oral submissions, the essence of ground 1 is a contention that the Tribunal’s reasons reveal that the Senior Member who constituted the Tribunal for the purposes of the review adopted a formulaic approach, straightjacketing himself by the parameters fixed by the Minister in Direction 90 (Direction), issued by the Minister under s 499 of the Act, to the exclusion of considering key elements or “integers” of the case presented by Mrs Kumar as to why the visa sought should be granted to her son. It was submitted that the Tribunal had thereby failed to discharge its statutory function of review.

19    In support of this proposition, particular reliance was placed on Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088. Dranichnikov exemplifies how an administrative decision maker, required to consider and determine a claim or representation on the merits, may both deny the author of that claim or representation procedural fairness and fail to discharge a statutory function of determining a claim or considering a representation if that administrative decision maker fails to consider an integer of that claim or representation. Ground 1 is predicated on there being a jurisdictional error of the latter kind but, as Mr McGlade of counsel accepted in light of Dranichnikov, such a failure might further or alternatively be characterised as a denial of procedural fairness to Mrs Kumar.

20    Before turning to how this submission was developed by reference to the circumstances of this case, it is helpful to set out some features of the merits review function which the Act required the Tribunal to undertake in respect of the Minister’s delegate’s decision.

21    The model found in the Act for that review function has its origins in a model adopted by parliament almost a century ago as an alternative means (alternative to a taxation appeal in a court exercising original, federal jurisdiction) by which a person might challenge before a Board of Review an adverse decision in respect of that person’s objection to an income tax assessment. In upholding the constitutional propriety of the model in Shell Co of Australia Ltd v Federal Commissioner of Taxation (1930) 44 CLR 530 (Shell Co), at 544 – 545, the Judicial Committee observed of the Board that it was in the nature of administrative machinery and that the Board was not exercising judicial power but rather, merely in the same position as, in that instance, the Commissioner himself.

22    It was this model which was taken up in s 43 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) and, subject to qualifications which are not presently material, in s 349 of the Act in relation to the Tribunal’s statutory function. In Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 (Drake) and with reference to Shell Co, Bowen CJ and Deane J observed, at 419, of the effect of s 43 of the AAT Act:

The question for the determination of the Tribunal is not whether the decision which the decision maker made was the correct or preferable one on the material before him. The question for determination of the Tribunal is whether that decision was the correct or preferable one on the material before the Tribunal.

[Emphasis added]

23    In turn, these observations in Drake with respect to the nature of the Tribunal’s function have been later approved by the High Court, notably in Shi v Migration Agents Registration Authority (2008) 235 CLR 286.

24    Also in Shi, Kirby J referred with approval to a statement made by Davies J in Jebb v Repatriation Commission (1988) 80 ALR 329 (Jebb), at 333 – 334, about the Tribunal being part of an administrative decision-making continuum. In turn, in Jebb, Davies J took up an observation made by the Tribunal in Re Easton and Repatriation Commission (1987) 6 AAR 558, at 561, “The ambit of a review by the [Tribunal] is necessarily influenced by the ambit of the steps and proceedings that have taken place prior to its review, for the function of the [Tribunal] is to review a decision”. This understanding of the Tribunal being part of an administrative decision-making continuum was endorsed by Bell, Gageler, Gordon and Edelman JJ in Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250, at [53].

25    The Tribunal’s place in an administrative decision-making continuum necessarily means that the issues which emerge for its consideration will be shaped not just by the criteria specified in or with respect to the statutory power it is exercising afresh but also by the way in which those issues have been developed at anterior stages of the continuum. Commencing with the original application for the exercise of the relevant statutory power, an applicant will have put forward particular reasons and material why that power ought to be exercised favourably. Some of these may have been accepted at primary decision-making level or perhaps on internal review within a department or agency, if there is provision for that, some not. The Tribunal’s own interlocutory practice and procedure is deliberately designed, via provision for an exchange of statements of facts, issues and contentions between applicant and respondent, to highlight the controversial issues of fact and law in the review. In turn, the identification of the pertinent issues may be refined by oral submissions made to the Tribunal in light of the totality of evidence following a hearing. In these circumstances, it is only natural to expect that the reasons of the Tribunal for its final decision will be coloured and shaped by the way in which issues have evolved beforehand.

26    The Tribunal’s decision-making must also take account of any guidelines or directions that necessarily attend the exercise of the statutory power that falls to be exercised afresh by it. Section 499 of the Act offers an example of a provision which, by s 499(1), both empowers the making of such directions (Direction 90 in this instance) and, by s 499(2A), requires compliance with them when exercising a power to which they are applicable. However, s 499(2) of the Act confirms a position which would in any event prevail, which is that the power found in s 499(1) to make directions does not empower the Minister “to give directions that would be inconsistent with [the] Act or the regulations”. In the same way, as recently highlighted by the High Court in Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 10, that the executive power of the Commonwealth does not extend to authorising a Minister to instruct officers to make a decision which, by legislative stipulation, could be made only by the Minister personally, so too the power conferred on the Minister as an officer of the executive to make directions does not extend to authorising the making of directions which are inconsistent with the statutory function of the Tribunal to review afresh a particular decision made under the Act. Put another way, while ministerial directions may serve a purpose of consistency of decision-making, the Minister cannot, by such a direction, dictate what must be the outcome before the Tribunal of undertaking its review on the merits of a particular decision.

27    Compliance with a ministerial direction is no substitute for the Tribunal’s understanding and evaluating the case made by a particular applicant for review on the material before the Tribunal for the purposes of that review. This was just the point made in the joint judgment of Kiefel CJ, Keane, Gordon and Steward JJ in Plaintiff M1/2021 v Minister for Home Affairs (2022) 96 ALJR 497 (Plaintiff M1/2021), at [24] – [26]:

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

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

[26]    Labels like “active intellectual process” and “proper, genuine and realistic consideration” must be understood in their proper context. These formulas have the danger of creating “a kind of general warrant, invoking language of indefinite and subjective application, in which the procedural and substantive merits of any [decision-maker’s] decision can be scrutinised”.

[footnote references omitted]

These statements were made with particular reference to the right found in s 501CA(4) of the Act to make a representation to the Minister following the cancellation of a visa pursuant to s 501(3A) of the Act. However, as is evident from [24], that context is but a particular exemplification of a general feature of administrative decision-making.

28    The submission made for Mrs Kumar was that, notwithstanding the way in which her case had been identified and developed before the Tribunal, key aspects had not just been ignored but, based on a misunderstanding of the effect of the Direction, treated as irrelevant. Those three key aspects were identified as:

(1)    the strength, nature and duration of the Mr Kumar’s ties to Australia;

(2)    the detriments/adverse impacts Mr Kumar would sustain by his visa being refused; and

(3)    the detriments/adverse impacts Mr Kumar’s father would sustain by the Applicant’s visa being refused.

29    Evaluating the merits of that submission, in light of the features of administrative decision-making discussed above, first requires some detailing of the administrative decision-making continuum in this particular case. It will then be necessary to analyse how that culminated in the reasons offered by the Tribunal for the decision under review.

30    In his visa application, Mr Kumar disclosed that he was “applying for the Resident Return Visa from Fiji as the Travel part of my Permanent Resident Visa expired whilst here (arrived in Fiji November, 2018)”. He also disclosed that he had been convicted of various offences in Australia. In a related, supporting statutory declaration, Mr Kumar detailed his offending history and his immediate family, including his father. He stated (at [16] to [18]):

16.    The relationship between my family and I has improved significantly.

17.    I completed a Diploma of Legal Services course in 2018 at TAFE Queensland.

18.     I applied to study Bachelors of Laws course at Griffith University, and was offered a position in the program, and wish to return to Australia to undertake the course.

31    Prior to the decision of the delegate, Mr Kumar’s visa application came to be supported by a statutory declaration made by his father on 25 February 2020. His father then held an Australian permeant resident visa but then held the position of Chief Justice on an acting basis. His father corroborated Mr Kumar’s intention to pursue legal studies in Australia on his return, and attested to his willingness to support him financially during those studies, should he require that ([34] of statutory declaration). Mrs Kumar also supplied a lengthy supporting statutory declaration.

32    In the statement of facts, issues and contentions which was filed on Mrs Kumar’s behalf in the Tribunal reference was made (at [41]) under the heading “Links to the Australian Community” to the impact of the refusal of Mr Kumar’s visa application on “three of the Visa Applicant’s immediate family members: his mother, his brother, and his father” (emphasis added). This impact was amplified in succeeding paragraphs of that statement.

33    As to Mr Kumar’s father, reference was made to the acting appointment which he held in Fiji and to his status as an Australian permanent resident visa holder, living in Fiji. It was stated ([49] to [51]):

49    … It is his desire that his son completes his law degree and pursues a career in law, as he did. This is what the Visa Applicant wants as well.

50.    Kamal [the father] knows firsthand the benefits that studying law and a legal career can bring. The Visa Applicant will become more focused, he will learn about justice and ethics, he will gain a greater understanding of how his behaviour can impact his career, his life, and other people, also he would be sufficiently regulated by the Law Society throughout his career.

51.    As Kamal [the father] is an Australian Permanent Resident, it is upsetting to know that, should he return to Australia, he would be leaving his son in Fiji without family and support.

34    One of the documents appended to this statement of facts, issues and contentions was a further statutory declaration made by the father and dated 17 March 2021. This provided an evidentiary foundation, in supplementation of that already accompanying the original visa application, for the statements, quoted above, made in Mrs Kumar’s statement of facts, issues and contentions.

35    In keeping with these factual assertions in the statement of facts, issues and contentions, one of the issues in dispute, expressly identified (at [10(c)]) in Mrs Kumar’s statement of facts, issues and contentions was, “The links to the Australian community, specifically the impact on family members.” The Minister’s corresponding statement of facts issues and contentions did acknowledge (at [90]) that Mr Kumar had “ties with family in Australia, including Australia citizens, and that his mother, brother, two aunts, one uncle and one cousin reside in Australia”, but did not mention his father in this context. Each of the statements of facts issues and contentions was obviously informed by the Direction. However, the issues raised by Mrs Kumar extended beyond that.

36    Mr Kumar’s father gave oral evidence at the hearing subsequently conducted by the Tribunal. In the course of that evidence, he confirmed what he had stated in his earlier statutory declarations in relation to Mr Kumar’s aspirations to study law in Australia and the preliminary studies to that end he had undertaken. He stated that he had supported Mr Kumar financially to undertake his legal studies diploma. He also stated that he had paid for Mr Kumar’s air fare to return to Australia early in 2019 for the purpose of pursuing university legal studies after a Christmas 2018 visit to Fiji to see him. Also in the course of his oral evidence, the father spoke of his then acting appointment in Fiji, how he didn’t have “any absolute commitments here in Fiji”, of his intention to return to Australia on cessation of duty in Fiji, because of the presence of his family in Australia, how, “at the moment”, Mr Kumar was with him in Fiji and how, if his review application were not successful, Mr Kumar might have to stay in Fiji by himself. The cross-examination of Mr Kumar’s father was directed to the nature and extent of his knowledge of Mr Kumar’s offending conduct in Australia but not at all to the accuracy of the statements had he made concerning his and his son’s intentions and the absence for each of them of enduring ties with Fiji.

37    A review of the oral submissions made to the Tribunal after the conclusion of oral evidence discloses that none of the issues raised in Mrs Kumar’s statement of facts, issues and contentions was abandoned. The submissions thus included reference to Mr Kumar’s desire to pursue university legal studies in Australia, to his ties to Australia, to his father’s support for him and the nature of the father’s position in Fiji. It was put that Mr Kumar was like a “fish out of water” in Fiji.

38    Turning to the Tribunal’s reasons, it is clear to the point of demonstration that they have been structured wholly by reference to the Direction. Yet the Direction was not, and could not be, exhaustive of considerations which might inform a decision not to refuse to grant a visa. In refusing to grant Mr Kumar the visa which he sought, the delegate exercised the discretionary power conferred by s 501(1) of the Act. It was this discretionary power which it fell to the Tribunal to exercise afresh.

39    Occasion for the exercise of that discretionary power is enlivened by a failure on the part of visa holder to satisfy the Minister or, as the case may be (and was) a delegate that he or she passes the “character test” for which s 501 provides. The length of a term of imprisonment to which Mr Kumar had been sentenced as part of his offending history was such that he could not possibly engender satisfaction that he passed the character test. He did not contend, and never had contended, that he passed the character test. Instead, from the very outset of the administrative decision-making continuum, his case was always that there were particular features of his personal circumstances which should provide occasion for an enlivened discretionary power to refuse to grant a visa not to be exercised. These features were the three aspects identified above.

40    Subsection 501(1) of the Act does not itself specify any criteria which must or must not be taken into account when deciding as a matter of discretion whether or not to refuse to grant a visa, once that discretion is enlivened. However, the occasion why a person cannot engender satisfaction that he or she passes the “character test” is, obviously and necessarily, a relevant consideration. But it is not exhaustive of the considerations which are either relevant in the sense described by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, at 39 – 40, or which nonetheless may, without jurisdictional error, permissibly be taken into account in deciding whether or not to refuse to grant a visa.

41    The power conferred by s 501(1) of the Act falls to be exercised subject to the Act and subject to the self-evident, Australian community protective purpose of the power. However, by the very circumstance that a discretion has been conferred, it necessarily follows that parliament has accepted that this purpose is not necessarily served in a given case by a refusal to grant a visa. To approach the exercise of the discretionary power on the basis of an a priori assumption that a failure to be satisfied a person passes the character test means that the granting of a visa must be refused would be to misconceive the nature of the power. The discretionary power conferred by s 501(1) of the Act stands in marked contrast to the obligation, found in s 501(3A) of the Act, to cancel a visa in the event that one or the other of the subjects of ministerial (or delegate) satisfaction exists.

42    That the power falls to be exercised subject to the Act necessarily means that considerations specified by the Minister in the Direction made pursuant to s 499 are relevant considerations, subject only to the qualification as to the limits of ministerial executive power already noted. In Calvey v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 104, at [45], and with reference to the power, found in s 501CA(4) of the Act, to revoke the cancellation of a visa, in relation to which considerations specified in a direction made under s 499 of the Act are also relevant, the Full Court observed of such considerations that they are “not an exhaustive universe”. In the face of an ability to revoke cancellation as open-ended as if satisfied “that there is another reason why the original decision should be revoked”, that, with respect, must follow. Mrs Kumar argued, by analogy, that the same conclusion followed in relation to the power conferred by s 501(1) of the Act. We agree. The Minister cannot, by a direction made under s 499, fetter the exercise of the power conferred by s 501(1) of the Act.

43    The Minister has not purported to do this by the Direction. Instead, at paragraph 5.1(2) of the preamble to the Direction, the Minister has stated, “Where the discretion to refuse to grant or to cancel a visa is enlivened, the decision-maker must consider the specific circumstances of the case in deciding whether to exercise that discretion.” That statement, with respect, is completely congruent with the conclusions which we have reached in the preceding paragraphs concerning the nature of the power conferred by s 501(1) of the Act.

44    It follows from these conclusions that each of the three, identified aspects of Mr Kumar’s visa application might permissibly have been considered by the Minister’s delegate and, sitting in place of the delegate, the Tribunal.

45    The question becomes, is the present a case where, as in a case relied upon by way of example by Mrs Kumar, Fehoko v Minister for Immigration, Citizenship, Migrant Services and Multi-cultural Affairs [2022] FCA 147, the Tribunal has blinkered itself by reference to the considerations specified in the Direction, to the exclusion of reviewing afresh the claims made by and on behalf of Mr Kumar as to why the visa sought should be granted?

46    As we were appropriately reminded by Mr Byrnes of Counsel for the Minister, another statement made in the joint judgment in Plaintiff M1/2021, at [38], was that, “The Court is not ‘astute to discern error’ in the reasons of an administrative decision-maker.” As made clear by the footnoted references for that statement to Plaintiff M64 of 2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173, at 185, and to Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, at 271 – 272, 278 and 282, this was no new subject. The business of public administration either at primary decision-making level or upon merits review would become quite impossible were the position otherwise.

47    In this case, the primary purpose of the Tribunal’s reasons was to inform the parties to the review why the Tribunal had decided to confirm the delegate’s decision. Another, via Mrs Kumar, was to offer that explanation to her son, Mr Kumar, the applicant for the visa. However, the imposition of this informative purpose also served another public interest purpose, which was to promote better administrative decision-making within the executive branch. At common law, there is no requirement for an administrator to furnish reasons for a decision: Public Service Board (NSW) v Osmond (1986) 159 CLR 656. In the imposed discipline of having to furnish reasons lies the hope and expectation that an administrative decision-maker will confront and apply the applicable law to the facts of a given case. Exposing a reasoning process avoids the controversy of whether, in their absence, an inference as to jurisdictional error is nonetheless open: qv Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997.

48    Mr Byrnes made another sound point in his submissions for the Minister. That is, even if the reasons evidenced that the Tribunal had approached the making of a decision on the review using the criteria as something of a “template”, if, nonetheless, the reasons showed that the particular aspects of a given visa application had been considered, no jurisdictional error would be demonstrated. This must follow. At the heart of Dranichnikov was a question of fact as to what were the “integers” of the claim? If, on the face of the Tribunal’s reasons, it was plain that those integers had been considered, its review function would have been discharged and its procedural fairness obligation would have been observed.

49    Mr Byrnes also submitted that this was apparent from the reasons given by the Tribunal in this case. We do not agree. Instead, as Mr McGlade demonstrated in submissions, the reverse is true. The most stark example of this is offered by [162] of the Tribunal’s reasons:

162    The Applicant’s father is a permanent resident of Australia. However, his father is not relevant to paragraph 9.4.1(1) of the Direction, because he is not “in Australia” at the time of this decision. He is in Fiji.

Mr Kumar’s father may not have fallen within the terms of the Direction. But he did most emphatically feature in the reasons put forward by Mr Kumar in his visa application and by Mrs Kumar in her review application as to why there should not be a refusal to grant a visa. The claims made in relation to the father were “clearly articulated” and “clearly arose” from the very outset to the point of Tribunal hearing in the course of the administrative-decision-making continuum. It was permissible to take them into account for the purpose of exercising the discretion conferred by s 501(1) of the Act. To approach them as if they were not, on the basis of the Direction, was to misconceive the nature and extent of the discretion which it fell to the Tribunal to exercise afresh.

50    Moreover, Mr Kumar’s reference to his father’s circumstances and support interplayed with the immediate occasion for his seeking a return visa, which was to study in Australia, for which he had his father’s support. A feature of the Tribunal’s reasons is that the Tribunal nowhere directly records why Mr Kumar had sought, and was still seeking, the visa. That the Tribunal did have an understanding of this reason does appear obliquely. In the course of considering a submission on behalf of the Minister as to why there was a risk of re-offending, having regard to observations about him in a report tendered to the Queensland District Court in 2015 during a sentencing hearing, the Tribunal recorded (at [87]) in respect of that submission, “Examples of such difficulties are cited to include finding employment in Australia, being accepted into a degree-certified law course at a university (or similar institution) as well as re –establishing an interpersonal relationship with a partner.” What the Tribunal did not do was to address whether this tertiary legal studies ambition, in conjunction with other factors, necessarily including those considerations specified in the Direction which were raised on the material before it, weighed in favour (or against) the granting of the visa. Once again, such was the breadth of the discretion conferred by s 501(1), it was permissible for the Tribunal to consider this “integer” of the application before it.

51    The Tribunal’s reasons reveal that it did address the subject of Mr Kumar’s links to the Australian community but did so in a way which it regarded as circumscribed by the Direction.

52    Demonstrating how this occurred requires that we set out [157] to [160] of the Tribunal’s reasons under the heading, “Links to the Australian community” and then the related part of the Direction to which the Tribunal refers:

157    Paragraph 9.4 of the Direction requires that decision-makers must have regard to an Applicant’s links to the Australian community.

158    There are two factors which I must assess in determining the level of weight to allocate to Other Consideration (d). They comprise: (1) the strength, nature and duration of ties to Australia; and (2) the impact on Australian business interests. I will consider each in turn.

159    Strength, nature and duration of ties An initial observation is that the second paragraph of this paragraph 9.4.1 is not relevant to the instant application. It is predicated on an applicant seeking relief from a cancellation of their visa or non-revocation of the mandatory cancellation their visa. Here, the Applicant seeks relief from a decision to refuse a visa. Paragraph 9.4.1(2) is not relevant to determination of the instant application.

160    I will therefore limit my consideration to the componentry of paragraph 9.4.1(1) of the Direction.

53    The related paragraphs of the Direction state:

9.4.1.    The strength, nature and duration of ties to Australia

1    Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.

2    Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non­ citizen has to the Australian community. In doing so, decision-makers must have regard to:

a)    how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:

1.    less weight should be given where the non-citizen began offending soon after arriving in Australia; and

11.    more weight should be given to time the non-citizen has spent contributing positively to the Australian community.

b)    the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.

54    Read in conjunction with the Direction, it can be seen how, by blinkering itself by the Direction, the Tribunal came, as [162] of its reasons, set out above demonstrates, to disregard Mr Kumar’s father because, although the holder of a permanent resident visa, he was not in terms of [9.4.1], item 1 of the Direction, “in Australia”. Further, as the last sentence of [159] of the Tribunal’s reasons reveals, because the Tribunal was not dealing with a cancellation or revocation of cancellation of visa decision, as opposed to a refusal to grant decision, it treated the subjects set out in that paragraph as not relevant. Yet those very subjects also formed an “integer” of the review application.

55    It is possible nonetheless, when one reads the Tribunal’s reasons as a whole, to find passages in the reasons which canvas some aspects of Mr Kumar’s ties to Australia. The Tribunal has rehearsed aspects of this subject in its consideration, with reference to [5.2(4)] of the Direction (set out below in our consideration of Ground 2) of where Mr Kumar has spent “most” of his life. The Direction does not specify mutually exclusive subjects for consideration. The difficulty in accepting that the aspect of Mr Kumar’s ties to Australia was addressed by the Tribunal is likewise found in [159] of the Tribunal’s reasons. In respect of this aspect of the application for a visa also, the Tribunal has declined to regard them as relevant, because of a misapprehension as to their relevance, grounded in the wording of the direction and the fact it was not reviewing a cancellation decision.

56    Moreover, as was also put for Mrs Kumar, based on the Direction ([5.2(4)] in particular) and as [149] to [151] of the Tribunal’s reasons (set out below) reveal, the Tribunal looked to the length of time which Mr Kumar had spent in Australia, rather than, as his claim as developed put forward, the quality of his ties to Australia.

57    What follows from the foregoing is that the Tribunal failed to exercise the assigned statutory function of reviewing the decision not to grant the visa for which Mr Kumar applied, because it failed to address aspects or integers of that visa application. Further or alternatively, in so doing, the Tribunal failed to afford Mrs Kumar procedural fairness.

58    The failures concerned were jurisdictional. As we have stated, it was permissible to take these aspects of the claim for a visa into account, and to do so favourably. Whatever one might make of the consideration in [5.2(4)] of the Direction, Australia had “tolerated” the continued presence of Mr Kumar for years after occasion had arisen for the engendering of satisfaction that might have resulted in the cancellation of his then visa. In that time he had successfully obtained a precursor to the bachelor’s degree level legal studies he stated he wished to pursue on return from an anticipated short term absence in Fiji. The nature and extent of his ties to Australia were hardly trifling. His father had but an acting appointment in Fiji, a right of permanent residence in Australia and a disposition to avail himself of that right when his appointment in Fiji came to an end. He was supportive of Mr Kumar’s ambition to pursue rehabilitation by educational endeavour. Mr Kumar faced the prospect of being effectively marooned in Fiji without any familial presence. Realistically, the taking of these aspects of the claim into account could have resulted in a different decision on the review application: MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506 (MZAPC), at [85]. The Minister has not established that the failures were immaterial: MZAPC, at [86].

Ground 2

59    Consideration of ground 2 first requires that we set out the terms of paragraph 5.2(4) of the Direction:

(4)    Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non­citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non­citizens who have lived in the Australian community for most of their life, or from a very young age.

60    In addressing this consideration, the Tribunal stated ([149] to [151]):

149    The [Visa] Applicant [Mr Kumar] was a permanent resident in this country and has spent just over half of his life here, until he returned to Fiji in November 2018. During that time, he has made contributions to the Australian community. During his time on parole, he worked as a sales manager for a resort company. He has also made community contributions through his work for a charity organisation raising funds for those affected by cerebral palsy. It follows that the Australian community does not have a low tolerance of this [Visa] Applicant's conduct as they would if he held a limited stay visa, or had been participating in or contributing to the community for a short period of time.

150    [The tolerance principle] further provides that the Australian community may afford a higher level of tolerance to this [Visa] Applicant's criminal or other serious conduct if (1) the [Visa] Applicant has lived in the Australian community for most of his life, or (2) he has lived here from a very young age. At best, only the second element has possible application to the [Visa] Applicant. He lived in Australia, on a predominant basis, from January 1995 to March 2000, and from June 2008 to November 2018. Therefore, only the second of these elements is of assistance to the Applicant.

151    Thus, I am of the view that the Australian community's expectations are not fundamentally modified by [the tolerance principle].

61    Construing this paragraph as a whole and in context, the learned primary judge regarded the word “most” as conveying more than just a bare, arithmetic assessment of whether a particular individual had spent a majority of his or her life in Australia, requiring a much more nuanced approach. This, construction, and why his Honour found no jurisdictional error in the Tribunal’s reasons, is revealed in a closely reasoned passage from his Honour’s reasons for judgment (at [48] to [60]). It is necessary to set out that reasoning in full:

48    It was submitted that according to ordinary usage ‘most’ means majority or greatest quantity, recognising that the term has a semantic breadth that encompasses ‘nearly all’. It was said that the use of ‘most’ to mean ‘nearly all’ was a more colloquial use of the word and should not be accepted as the meaning of the word in the tolerance principle.

49    When used in a context that connotes measurement of part of something (relevantly for present purposes, most of the life of a person), the word most usually means the greatest part or the majority. However, it is not a precise term and context is important.

50    As is usually the case, in considering what is meant by a word it must be considered in context, understanding that the meaning conveyed by words requires particular regard to the sentence in which they are used. As a means of communicating meaning, written words are constructed into sentences which must themselves be considered in the context of the writing as a whole. In the present case, the word ‘most’ is used in the phrase ‘lived in the Australian community for most of their life’, a phrase that is expressed in contra-distinction to a case where a person has participated in or contributed to the Australian community ‘only for a short period of time’. Thus, the tolerance principle as expressed in the Direction concerns how long a person has ‘lived in the Australian community’. According to the principle, higher tolerance applies to those ‘who have lived in the Australian community for most of their life, or from a very young age’.

51    Whether a person fits within the description of a person who has lived in the Australian community for most of their life is not determined simply by counting months spent in different places. For example, a person who has lived in many countries for short periods of time but has spent more time in Australia than anywhere else would not usually be described as a person who has spent most of their life in Australia. Likewise, a person who has spent relatively equal amounts of time in two different places would not ordinarily be described as someone who has spent most of their life in the place where they had lived for longer measured by a narrow majority. Rather, in describing a place as being the place where a person has spent most of their life, the meaning conveyed would be that a clear majority of the person's life has been spent in that place.

52    In my view, what is stated by the principle is not a requirement that a higher level of tolerance of a person’s criminal or other serious conduct be afforded to a person simply on the basis that they have lived more than half the duration of their life in Australia in circumstances where they have lived the rest of their life in another place.

53    In any event, the use of the words 'may afford a higher level of tolerance' in the second part of the tolerance principle, meant that it was a matter for the Tribunal to form a judgment as to whether and if so in what way, in all the circumstances, the tolerance principle (as part of the framework to inform the manner in which the Tribunal would take into account the primary and other considerations) might guide the process of taking the specified considerations into account.

54    The tolerance principle is a statement of a normative principle to the effect that the Australian community may afford a higher tolerance for offending by those non-citizens who have lived in the country for most of their life or from a very young age. It ameliorates the deeming effect of the preceding principle stated in para 5.2(3) of the Direction, which is a principle to the effect that the Australian community expects its government to refuse entry to people who engage in conduct that raises serious character concerns: as to which see YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 at [76] (Mortimer J); FYBR v Minister for Home Affairs [2019] FCAFC 185; (2019) 272 FCR 454 at [80] (Charlesworth J), [104] (Stewart J); and CKL21 v Minister for Home Affairs [2022] FCAFC 70 at [29]-[30].

55    In that context, the evident reasoning pathway concerning the significance of how long the Visa Applicant had lived in Australia was as follows:

(1)    the Visa Applicant had spent just over half his life in Australia until he returned to Fiji;

(2)     it follows from that finding that the Australian community does not have the low tolerance for his offending that it would for a person who had been in Australia on a short stay visa or for a short period of time;

(3)    the Australian community would afford a higher level of tolerance to offending by those who (a) had lived in the Australian community for most of their life; or (b) had lived here from a very young age;

(4)    the first element did not apply (meaning, implicitly, that spending just over half his life in Australia was not enough for the Visa Applicant to be described as having lived most of his life in Australia);

(5)     the second element had possible application; and

(6)    therefore, the tolerance principle had no fundamental effect one way or other on the approach to primary consideration (4).

56    Measured in months, the Visa Applicant had spent about half his life in Australia and half in Fiji. By the time of the Tribunal's decision, the Visa Applicant had spent 15 years and 6 months of his life in Australia and 14 years and 8 months outside of Australia. The position was slightly more in favour of Australia if the time of his visa application was used. Therefore, the factual summary adopted by the Tribunal to the effect that the Visa Applicant has spent just over half his life in Australia was correct.

57    Having regard to my earlier reasoning, it was not inconsistent with the meaning of the Direction for the Tribunal to conclude that a person who had spent about half their life in each of two countries was not a person who had spent most of their life in Australia.

58    The Tribunal correctly identified that the Visa Applicant had lived in Fiji until he was 4 years of age, lived in Australia as a young child (between the ages of 4 and 8), then returned to Fiji until he came back to Australia as a 17 year old. It identified the ‘second element’ as being the only element of assistance to the Visa Applicant. It described the position as being that 'at best' only the second element had ‘possible application’.

59    The Tribunal then concluded in respect of the tolerance principle, that the Australian community’s expectations (being that entry should be refused to a person who has engaged in conduct that raises serious character concerns) 'are not fundamentally modified' by the tolerance principle. This was a conclusion that could not be described as inconsistent with the terms of the Direction concerning the tolerance principle. Nor could it be described as illogical. It was an analysis of the circumstances of the Visa Applicant that was reasonably open to the Tribunal.

60    Further, the tolerance principle was not itself a matter to which the Tribunal was required to have regard if relevant. Rather, as has been explained, it was a principle that was to inform the task of taking into account those matters which the Direction required the Tribunal to take into account in deciding whether to exercise the discretion conferred by s 501(1). It was a principle which itself was expressed in terms that required an evaluation as to whether the higher level of tolerance 'may' in all the circumstances be afforded. In those circumstances, there was no evident flaw in the Tribunal considering the principle in the manner in which it did and reaching a conclusion that for the purposes of primary consideration (4), the tolerance principle did not fundamentally modify the deeming aspect of the earlier principle to the effect that there was an expectation that entry should be refused if a visa applicant had engaged in conduct that raised serious character concerns.

62    The nature of the challenge made to this reasoning is revealed by the detailed particularity in the pleading of ground 2. In his submissions, the Minister embraced the reasoning of the primary judge in the passage quoted.

63    Mrs Kumar’s submissions advanced again the construction, rejected by the primary judge, that “most” in [5.2(4)] meant “more than half” – “[Mr Kumar] clearly lived more than half of his life in Australia (he lived 15.5 years in Australia and 14.66 years in Fiji) … [it was only 12.16 years in Fiji if time after the visa application was not taken into account]. By ordinary meaning, the word “most” is referrable to the highest amount or number in size/quantity”.

64    The vice in this submission is that it fails to recognise the importance of the context in which the word “most” is used in [5.2(4)]. In particular, and as the primary judge highlighted, it is used in contradistinction to “short period”. As so used, there is an inherent imprecision in the specified ameliorating consideration. It certainly does not mean a bare majority. The impression of inherent imprecision is only reinforced by a comparison between the other “young age” arrival consideration, especially as this may not necessarily be a true alternative. We respectfully agree with the reasoning of the primary judge in relation to the meaning of the word “most”. Further, in light of this agreement and for just the reasons given by his Honour, there was no illogicality or irrationality in the Tribunal’s consequential reasoning in relation to the application of the “tolerance principle” in the circumstances of the present case.

65    Yet further, the primary judge was correct to hold that the “tolerance principle” was “a principle that was to inform the task of taking into account those matters which the Direction required the Tribunal to take into account”. This is made pellucid by the words we have emphasised in the opening preamble in [5.2] of the Direction:

The principles below provide the framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen’s visa under section 501, or whether to revoke a mandatory cancellation under section 501CA. The factors (to the extent relevant in the particular case) that must be considered in making a decision under section 501 or section 501CA of the Act are identified in Part 2.

[Emphasis added]

66    For these reasons, which are essentially those of the primary judge, we would dismiss ground 2.

Disposal of Appeal

67    The result is that the appeal must be allowed but on a ground not raised before the primary judge.

68    While that nonetheless means that the order dismissing the application for the judicial review of the Tribunal’s decision must be set aside and, in lieu thereof, the decision of the Tribunal must be quashed, the basis on which those orders are to be made has obvious ramifications in relation to what justly to do in relation to the order for costs made below. Recognising this, Mr McGlade did not press for an order that there should be any disturbing of the costs order made in the original jurisdiction. In relation to the costs of the appeal, including the application for leave to amend, costs should follow the event.

69    The matter must be remitted to the Tribunal for the hearing afresh of the application for review.

Associate:    

Dated:    16 June 2023