Federal Court of Australia

Garland v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 144

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs.

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

REASONS FOR JUDGMENT

STEWART AND HESPE JJ:

1    Takutai Garland (the appellant) is a New Zealand citizen, although he has lived in Australia since 1988 when he was 17 years of age. He is now 51. As one might expect, having lived his whole adult life in Australia, the appellant has extensive connections here.

2    However, in August 2016, he was sentenced to a total term of imprisonment of five years in the Perth District Court for “aggravated burglary with intent in dwelling” and “assault occasioning bodily harm”. As a consequence, his visa which entitled him to reside in Australia was mandatorily cancelled under s 501(3A) of the Migration Act 1958 (Cth). Having no right to be in Australia, Mr Garland has been held in immigration detention since he completed his criminal sentence in August 2021.

3    Mr Garland sought revocation of the decision to cancel his visa under s 501CA(4) of the Act. In April 2022, a delegate of the Minister administering the Act refused to revoke the cancellation, finding that having failed the character test, there was not “another reason” why the original decision should be revoked as referred to in s 501CA(4)(b)(ii).

4    Mr Garland then sought merits review of the delegate’s decision in the Administrative Appeals Tribunal. In June 2022, the Tribunal affirmed the decision of the delegate.

5    Mr Garland then sought judicial review of the Tribunal’s decision in the Court pursuant to s 476A(1)(b) of the Act. In March 2023, a judge of the Court dismissed the judicial review application.

6    Mr Garland now appeals from that dismissal. For the reasons set out below, the appeal must be dismissed.

The statutory framework

7    The statutory framework is well-known. By way of example, it is set out in Minister for Immigration, Citizenship and Multicultural Affairs v HSRN [2023] FCAFC 68 at [10]-[18]. For present purposes, the following is relevant.

8    In deciding whether there is “another reason” why the mandatory cancellation of Mr Garland’s visa should be revoked, the delegate of the Minister and the Tribunal were bound by s 499(2A) of the Act to comply with any direction given by the Minister under s 499(1). Relevantly, in this case they were bound to comply with Direction No. 90: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA which is dated 8 March 2021 and commenced on 15 April 2021.

9    In Pt 1 of the Direction, the preamble in para 5 identifies objectives of the Act with regard to the refusal or cancellation of a visa on character grounds and sets out principles that provide the framework within which decision-makers should approach their task in making the relevant decision.

10    Part 2 of the Direction deals with “Exercising the discretion”. It provides that a decision-maker must take into account the considerations identified in paras 8 and 9, where relevant to the decision (para 6). Paragraphs 8 and 9 identify “Primary considerations” and “Other considerations” respectively. It is provided that primary considerations should generally be given greater weight than the other considerations (para 7(2)).

11    Paragraph 8 identifies four primary considerations in the making of a relevant decision, namely (1) protection of the Australian community from criminal or other serious conduct; (2) whether the conduct engaged in constituted family violence; (3) the best interests of minor children in Australia; and (4) expectations of the Australian community.

12    The Tribunal’s treatment of primary considerations (1) and (4) are particularly relevant in this appeal. The provisions of para 8 that govern the Tribunal’s treatment of these primary considerations are as follows:

8.1    Protection of the Australian community

(1)    When considering protection of the Australian community, decision-makers should keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.

(2)    Decision-makers should also give consideration to:

(a)    the nature and seriousness of the non-citizen’s conduct to date; and

(b)    the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.

…

8.4    Expectations of the Australian Community

(1)    The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.

(2)    In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:

(a)    acts of family violence; or

(b)    causing a person to enter into, or being party to (other than being a victim of), a forced marriage;

(c)    commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, 'serious crimes' include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;

(d)    commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or

(e)    involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or

(f)    worker exploitation.

(3)    The above expectations of the Australian community apply regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.

(4)     This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case.

The Tribunal’s decision

13    The Tribunal commenced by identifying the relevant statutory provisions and that it was bound to comply with the Direction.

14    The Tribunal then considered whether Mr Garland passes the “character test” as defined by s 501(6) of the Act. The Tribunal found that Mr Garland does not pass the character test. That finding is uncontroversial.

15    With regard to whether there is “another reason” why the cancellation decision should be revoked, the Tribunal considered each of the primary considerations and the “other” considerations in turn, identifying the relevant facts and ascribing a descriptor of weight to each of the considerations.

16    With regard to primary consideration (1), protection of the Australian community, the Tribunal separately considered (a) the nature and seriousness of Mr Garland’s conduct and (b) the risk to the Australian community should he commit further offences or engage in other serious conduct. That distinction arises from paras 8.1.1 and 8.1.2 of the Direction respectively.

17    The Tribunal first conducted an overview of Mr Garland’s offending, identifying relatively minor driving and possession of cannabis offences in 1998, 1999 and 2011. It then dealt with the offences that led to the cancellation of Mr Garland’s visa, including quoting from the sentencing remarks of Stone DCJ which included details of the incident in question, namely:

    At about 9:30pm on the night in question in May 2014, the victim entered his home (a “unit”) on returning from work.

    Shortly thereafter, Mr Garland and a co-offender entered the unit via the unlocked front door. They were both wearing balaclavas and dark clothing.

    As the victim approached Mr Garland, Mr Garland grabbed him by the wrists while the other intruder struck the victim on the head three times with a metal bar. He fell to the ground and was then struck on the jaw and shin, whereafter the intruders left without saying anything.

    As a result of the attack, the victim was hospitalised for two nights. He sustained a fractured skull as well as injuries to his jaw and shin.

18    In assessing the nature and seriousness of the conduct, the Tribunal noted that the crime was a “violent crime” and is therefore described in para 8.1.1(1)(a)(i) of the Direction as being “very serious”.

19    The Tribunal noted that the seriousness of the “assault occasioning bodily harm” and the “aggravated burglary with intent in dwelling” offences is highlighted by the aggravating factors identified by Stone DCJ in his Honour’s sentencing remarks. Relevantly, those included that “the victim was vulnerable, he was alone in his own home, it was two against one” and Mr Garland is “a much larger man” than the victim. Other aggravating factors were the use of a weapon, the force of the violence, the lack of any apparent motivation for the attack and that the actions were deliberate and premeditated.

20    The Tribunal identified as a further indication of the seriousness of the offences that the sentencing judge described the offending as a serious home invasion against a vulnerable victim that was premeditated but with no apparent explanation.

21    The Tribunal noted that para 8.1.1(1)(b) of the Direction states that crimes against “vulnerable members of the community” are “serious”. It then observed that it is unclear what the victim’s vulnerabilities were, although the sentencing judge had commented that Mr Garland was much larger than the victim. On that basis, the Tribunal accepted the assessment of the sentencing judge who referred to the victim as being “vulnerable” on two occasions in the sentencing remarks. It thus appears that the Tribunal accepted that the sentencing judge’s description of the victim as “vulnerable” was such as to make the victim “vulnerable” within the meaning of para 8.1.1(1)(b) of the Direction. That acceptance is controversial in the appeal, as will become apparent.

22    The Tribunal next considered the frequency of Mr Garland’s offending (para 8.1.1(1)(d)), the degree to which he was a repeat offender (para 8.1.1(1)(e)), whether he had provided false or misleading information (para 8.1.1(1)(f)) and whether he had previously received any formal or other written warnings (para 8.1.1(1)(g)). Summarising the various factors, the Tribunal concluded that based on the violent nature of the offending against a vulnerable victim, the significance of the victim’s injuries which the sentencing judge described as being in the upper range for assault occasioning bodily harm, and the other aggravating factors determined by the sentencing judge, the nature and seriousness of the conduct “weighs strongly against the revocation of the Cancellation Decision.”

23    The Tribunal then considered the risk to the Australian community should Mr Garland commit further offences or engage in other serious conduct. The Tribunal considered the nature of the harm if Mr Garland were to engage in further criminal or other serious conduct of the type he had previously engaged in (para 8.1.2(2)(a)) and the likelihood of Mr Garland engaging in further criminal or other serious conduct if he were permitted to remain in the Australian community (para 8.1.2(2)(b)). The Tribunal noted that Mr Garland does not have a long criminal history, he has support from friends and family and he has a work history which may help him find employment if he is released into the community.

24    The Tribunal stated that it was concerned with the escalation in Mr Garland’s offending, with the offences leading to the cancellation of his visa being significantly more serious than his previous offending. It noted that the serious offending occurred not long after Mr Garland started using methamphetamines (or “ice”). The Tribunal noted that because Mr Garland denied his own parole, he did not have the benefit of a period of parole supervision and monitoring with conditions that might otherwise have assisted with his rehabilitation and reintegration into the community and to abstain from the use of drugs. It noted that Mr Garland was assessed by prison treatment assessors in November 2016 as being a high risk of general offending and a low risk of violent reoffending. It noted that Mr Garland had refused to participate in treatment programs in custody, which raised doubts as to the likelihood of him engaging in substance abuse rehabilitation if he was released.

25    The Tribunal noted various indicators of Mr Garland showing no remorse and being in denial in relation to his offending, as well as, to the contrary, his acceptance of guilt in evidence before the Tribunal. The Tribunal was sceptical of Mr Garland’s description in evidence before it of the offending that gave rise to the cancellation of his visa, and in particular his downplaying of the seriousness of his role in the incident. The Tribunal preferred the findings of the sentencing judge that Mr Garland’s offending was deliberate and premeditated, which also supported a finding that he was less than fulsome in his evidence to the Tribunal about his offending to minimise its seriousness. The Tribunal also found that Mr Garland’s remorse for his offending is less than fulsome, and his lack of insight raises concerns about his likelihood of reoffending if he is released into the community.

26    The Tribunal summarised the factors for and against Mr Garland in the assessment of the likelihood of him committing further general or violent offences, and concluded that he remains a moderate risk of reoffending in a general or violent manner. Given the gravity of the offences that led to the cancellation of his visa and the serious harm that could be caused if those offences, or like offences, were to be repeated, the Tribunal found that even a low risk of reoffending would be unacceptable (in accordance with para 5.2(5) of the Direction). The Tribunal therefore found that the risk to the Australian community should Mr Garland commit further offences (ie, para 8.1.2 of the Direction) “weighs strongly against the revocation of the Cancellation Decision.)

27    Taking the findings on paras 8.1.1 and 8.1.2 together, the Tribunal found that primary consideration 8.1, being the protection of the Australian community, weighs strongly against the revocation of the decision to cancel Mr Garland’s visa.

28    As Mr Garland had not been convicted of any offences involving family violence and there did not appear to be any minor children whose interests would be affected by the decision, those primary considerations (paras 8.2 and 8.3 of the Direction) were found not to be relevant.

29    With respect to the expectations of the Australian community (para 8.4 of the Direction), the Tribunal noted that it must give effect to the “norm” that the Australian community expects non-citizens to obey Australian laws whilst in Australia.

30    The Tribunal identified that further detail about the Australian community’s expectations with respect to certain types of conduct is given in para 8.4(2) of the Direction. It noted that the expectation is that a visa will be cancelled if there are serious character concerns with regard to the visa-holder, including those that arise through specific types of conduct. The listed types of conduct include the commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled. The Tribunal then referred to the two occasions on which the sentencing judge referred to Mr Garland’s victim as being “vulnerable” and stated:

I accept that assessment. I also found that the offending was violent and serious. Therefore, as this type of offending raises serious character concerns, the Australian community would expect the Applicant’s Visa to remain cancelled.

31    This indicates that the Tribunal accepted that the sentencing judge’s characterisation of Mr Garland’s victim as being “vulnerable” amounted to the victim being “vulnerable” within the meaning of para 8.4(2)(c) of the Direction. As will become apparent, that acceptance is controversial in the appeal.

32    Referring to the nature of the relevant offences and para 8.4(1), the Tribunal found that Mr Garland engaged in serious conduct such that the Australian community would expect that he would not be permitted to remain in Australia and that his visa should remain cancelled.

33    The Tribunal then concluded in relation to the primary consideration of the expectations of the Australian community that given the serious and violent nature of the relevant offences, “particularly the ‘assault occasioning bodily harm’ offence against a vulnerable victim”, that the consideration “weighs strongly against the revocation of the Cancellation Decision.”

34    The Tribunal then turned to the “other” considerations, finding only two to be relevant to its decision. In relation to them it found that the extent of impediments if Mr Garland was removed from Australia “weighed slightly in favour of the revocation of the Cancellation Decision” and his links to the Australian community (specifically, the strength, nature and duration of his ties to Australia) “weighed moderately to strongly in favour of the revocation of the Cancellation Decision.”

35    The Tribunal concluded as follows:

147.    I find that the two primary considerations (the protection of the Australian community and the expectations of the Australian community) which weigh strongly against the revocation of the Cancellation Decision, significantly outweigh the other considerations that weigh in the Applicant’s favour. Although the Applicant’s links to the Australian community weigh moderately to strongly, and the extent of impediments if removed weighs slightly in favour of revocation of the Cancellation Decision, they do not outweigh the primary considerations that weigh in favour of revocation.

148.    In other words, the considerations that weigh in favour of the Applicant are not reasons that carry sufficient weight or significance to the extent that I can be reasonably satisfied that the Cancellation Decision should be revoked (Viane). I am therefore not satisfied that there is another reason to revoke the Cancellation Decision.

(Emphasis added.)

36    For those reasons, the Tribunal concluded that the correct or preferable decision was to affirm the decision of the delegate.

The primary proceeding

37    There was only one ground of review before the primary judge, namely that the Tribunal was in jurisdictional error by misapplying or misconstruing para 9.4.1(2)(a)(ii) of the Direction which concerns the weight to be given to the time the non-citizen has spent contributing positively to the Australian community. As mentioned, the primary judge dismissed the application. It is not necessary to go into any detail about this aspect of the procedural history because the grounds of appeal are based on grounds of review of the Tribunal’s decision that were not raised by the application for judicial review before the primary judge. They are new grounds.

The appeal grounds and leave to argue them

38    As mentioned, the grounds of appeal identify alleged jurisdictional errors by the Tribunal that were not relied on before the primary judge. The appellant requires leave to rely on such grounds. The Minister did not oppose leave being granted.

39    It is also to be noted that although the “proposed supplementary notice of appeal” which served as the notice of appeal sets out three grounds of appeal, ground 3 was not pressed – the appeal was limited to grounds 1 and 2. Those grounds are:

(1)    The Tribunal made a jurisdictional error when it misconstrued the meaning of the phrase “vulnerable members of the community” in paras 8.1.1(1)(b)(ii) and 8.4(2)(c) of the Direction – although in argument counsel limited the ground to reliance on para 8.4(2)(c) only; and

(2)    The Tribunal made a jurisdictional error when it had regard to irrelevant matters and in doing so failed to comply with para 8.1.2(2) of the Direction, those matters being identified in the appellant’s written submissions as being the following factors that were considered by the Tribunal to suggest a likelihood of Mr Garland committing further general or violent offences:

•    less than fulsome remorse and attempts to minimise his involvement in the Cancellation Offences;

•    having a significant methamphetamine addiction and being under the influence of methamphetamine when he committed the Cancellation Offences;

•    failure to complete relevant rehabilitation for his methamphetamine addiction such as treatment or counselling in prison and immigration detention;

…

•    parole period having expired which means that he will not be able to benefit from a period of supervision under conditions to assist him with his rehabilitation and reintegration into the Australian community; and

•    lack of any enrolment or contact with counsellors or rehabilitation providers, nor any clear plan about how he will abstain from substance abuse if he is released into the community, and my reservations as to whether he intends to engage in any counselling or rehabilitation.

40    The principle governing the Court’s appellate jurisdiction is that appeals proceed by way of rehearing: Frigger v Trenfield (No 3) [2023] FCAFC 49 at [139] and the authorities there cited. In general, parties are bound by the conduct of their case at trial, as Gibbs CJ, Wilson, Brennan and Dawson JJ explained in Coulton v Holcombe [1986] HCA 33; 162 CLR 1 at 7-8. Ordinarily, the public interest in the finality of litigation would be undermined by allowing a new point to be argued on appeal that the party had not put below, and this is so even if it concerns only a question of law on uncontested facts that would not have changed the conduct of the trial. An appellate court will only permit such a new point to be raised if the interests of justice so require: Coulton at 8; O’Brien v Komesaroff [1982] HCA 33; 150 CLR 310 at 319 per Mason J with whom the rest of the Court agreed: see also Water Board v Moustakas [1988] HCA 12; 180 CLR 491 at 497 per Mason CJ, Wilson, Brennan and Dawson JJ.

41    In circumstances where the respondent Minister does not oppose leave being granted, the appellant was unrepresented before the primary judge and was clearly in a substantially disadvantaged position as a consequence, and the appeal is extremely significant to the appellant because of the personal consequences for him of failing and being removed from the country, it would be in the interests of justice to allow a new point to be argued on the appeal in the event that the point had sufficient merit. It is therefore necessary to consider the merits of each of the grounds of appeal.

Appeal ground 1: the meaning of “vulnerable”

Misconstruction of the Direction?

42    As explained above, the Tribunal accepted that because the victim of Mr Garland’s relevant offending was vulnerable in the sense that Mr Garland was “much larger” than the victim and the sentencing judge characterised the victim as “vulnerable”, the victim was “vulnerable” within the meaning of paras 8.1.1(1)(b)(ii) and 8.4(2)(c) of the Direction.

43    Dr Cox, who appears pro bono for Mr Garland, submits that the vulnerability of a particular victim because of his or her characteristics such as physical stature relative to the characteristics of the offender is not a relevant vulnerability for the purposes of the Direction. He submits that to satisfy the descriptor of “vulnerable” as used in the Direction, the victim must be a member of a relevant group that the Direction characterises as vulnerable, such as women, children, the elderly or the disabled.

44    Mr Kaplan, who appears for the Minister, submits that the Tribunal’s use of “vulnerable” as being based on the size of the offender relative to the victim was within the ordinary meaning of the word, and that there is nothing to suggest that it should be given other than its ordinary meaning in the Direction. He submits, with reference to dictionary meanings of “vulnerable”, that any recognised meaning of the word has the flavour of susceptibility to being harmed, physically or otherwise. He submits that vulnerability within the meaning of the Direction denotes susceptibility to being harmed.

45    It is trite that the meaning of a word used in an instrument must be taken from the text and the context. The word “vulnerable” is used three times in the Direction, once in para 8.1.1(1)(b)(ii) and twice in para 8.4(2)(c). Each time it is used within the phrase “vulnerable members of the community”.

46    In para 8.1.1, “vulnerable” is used in identifying types of crimes or conduct which are said to be considered by the Australian Government and the Australian community to be serious. Relevantly, those are said to include “crimes committed against vulnerable members of the community (such as the elderly and disabled)”. Another type of crime or conduct that is said to be serious under this provision is causing a person to enter into or being party to a forced marriage.

47    In para 8.4, “vulnerable” is used in relation to identifying types of conduct that it is said that the Australian Government and the Australian community regards as raising serious character concerns such that the person concerned should be refused entry or have their visa cancelled. Other types of conduct that are said to raise serious character concerns under this provision include acts of family violence, causing a person to enter into or being party to a forced marriage, involvement in human trafficking or people smuggling, and worker exploitation.

48    It is also noteworthy that the Direction identifies as “primary” considerations in the decision-making process whether the conduct engaged in constituted family violence and the best interests of minor children in Australia. Those primary considerations, taken together with the focus of concern in the Direction on identified vulnerable groups, namely women, children, the elderly and the disabled, and on exploitative crimes against vulnerable people (family violence, forced marriage, human trafficking and smuggling, and worker exploitation), suggest that where the Direction uses the phrase “vulnerable members of the community” it means members of vulnerable groups in the community; it does not encompass an individual who has physical characteristics or particular circumstances that make them vulnerable vis-à-vis a particular perpetrator but whose physical characteristics or particular circumstances do not identify the individual as a member of a recognised vulnerable group within the community. That is to say, the victim’s membership of a vulnerable group within the community is covered by the relevant phrase, and not a victim’s vulnerability measured with reference to or by way of comparison with the perpetrator.

49    That construction is particularly supported by the phrase “or other” used in para 8.4(2)(c), ie, “women, children or other vulnerable members of the community such as the elderly or disabled” which characterises women, children and the elderly and disabled as being vulnerable members of the community and therefore gives colour to who else may be considered also to be vulnerable members of the community.

50    In those circumstances, the fact of Mr Garland being “much larger” than the victim of his offending conduct does not amount to the victim being a “vulnerable member of the community” within the meaning of the Direction. The finding is not even that the victim was of a particularly or noteworthy small stature; it was only that Mr Garland was “much larger” than him. Members of the group of people in the community in respect of whom Mr Garland is “much larger” are not vulnerable members of the community within the meaning of the Direction. They may be vulnerable in relation to Mr Garland, but they are not by that fact “vulnerable” as contemplated by the Direction.

51    Mr Kaplan for the Minister relies on the statement in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 64 at [118] in relation to para 8.1.1(1)(b)(ii) that “[i]t is the nature of the persons who experience the consequences of the criminal conduct in question that is of importance, and on which the relevant part of the sub-paragraph fixes.” In that case, the relevant conduct was the trafficking of drugs. The Tribunal found that that conduct “can be said to negatively impact vulnerable members of the community, namely drug users and persons experiencing drug addiction” (LPDT at [24]). The appellant’s criticism of that finding in that case was that the relevant part of the sub-paragraph is engaged only if “a particular identifiable person was a victim of a crime” and that particular person could be characterised as a vulnerable member of the community. On that basis, the appellant contended that the Tribunal misconstrued the provision by equating the concept of a crime that might “negatively impact” unidentified or unidentifiable people with crimes “against” vulnerable members of the community (at [111]).

52    In dealing with that submission, the Full Court (Markovic, Thomas and Button JJ) did not accept the argument that it was necessary that there be an identified victim who is vulnerable (at [118]). The Court reasoned that the relevant part of the sub-paragraph identifies a sub-set of criminal conduct whose effect is suffered by those with the stipulated features. The statement on which Mr Kaplan relies was made in that context.

53    It can be seen that in that context, the statement in question does not detract from the meaning of “vulnerable members of the community” developed above. That is to say, “vulnerable members of the community” means members of identifiable vulnerable groups within the community. The “nature” of the victim, being such characteristics or circumstances that mean that they are part of an identifiable vulnerable group, remains at the centre of the inquiry. The physical characteristics of the perpetrator relative to the victim are not what require the victim to be recognised as a vulnerable member of the community.

54    On that basis, the Tribunal erred in construing the relevant phrase, both in paras 8.1.1(1)(b)(ii) and 8.4(2)(c) of the Direction. Dr Cox, however, accepts that the error in relation to para 8.1.1(1)(b)(ii) is immaterial because, as we understand it, the conduct in question was violent and therefore considered to be “very serious” under para 8.1.1(1)(a)(i) so it did not matter that it was also considered to be “serious” under para 8.1.1(1)(b)(ii). The question of materiality nevertheless has to be considered with regard to the error in relation to the Tribunal’s construction of para 8.4(2)(c).

Materiality of the error?

55    Materiality is essential to the existence of jurisdictional error: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421 at [45] (Bell, Gageler and Keane JJ). In order to establish that the Tribunal’s error in relation to sub-paragraph (c) was material, the appellant must establish that there is a realistic possibility that the Tribunal’s decision could have been different had the breach of the relevant condition not occurred: SZMTA at [45].

56    In Nathanson v Minister for Home Affairs [2022] HCA 26; 403 ALR 398 at [32], it was explained by Kiefel CJ, Keane and Gleeson JJ that the materiality of a breach requires consideration of “the basal factual question of how the decision that was in fact made was in fact made” (with reference to MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; 273 CLR 506 at [38]). That necessarily directs attention to the reasoning process of the Tribunal. It was also said in Nathanson (at [33]), albeit specifically with regard to a failure to afford procedural fairness, that the standard of “reasonable conjecture” is “undemanding”.

57    As set out above at [30], in relation to para 8.4(2) of the Direction, being the paragraph that directs attention to the nature of the character concerns or offences, and in particular the expectation of the community and the Government in the event that serious crimes were committed against particular categories of people, the Tribunal took both the fact that the victim was “vulnerable” and that the offending was “violent and serious” into account to conclude (indicated by “therefore”) that the offending “raises serious character concerns”.

58    Separately, in relation to para 8.4(1) in which the question of vulnerability does not arise, the Tribunal concluded that the Australian community would expect that Mr Garland should not be permitted to remain in Australia and consequently that his visa should remain cancelled (see [32] above). Thereafter, as quoted at [33] above, the Tribunal concluded that the consideration of the expectations of the Australian community “weighs strongly” against revocation of the cancellation decision.

59    Finally, as quoted at [35] above, the Tribunal concluded that the considerations against revocation “significantly outweigh” the considerations that weigh in Mr Garland’s favour.

60    As difficult as it is to speculate as to just what decision might have been made had the error in question not been made, and recognising that the standard of reasonable conjecture is undemanding, we are satisfied that in this case the ultimate decision could not realistically have been any different. That is because on any view the type of offending in question raises “serious character concerns”, constituting, as found by the Tribunal, “serious conduct” in breach of the expectation that non-citizens obey Australian laws while in Australia under para 8.4(1), and particularly having regard to its violent nature and its necessary characterisation as “very serious” under para 8.1.1(1)(a) regardless of the vulnerability of the victim within the meaning of the Direction. On that basis, the Tribunal’s intermediate conclusion, that was based on the erroneous construction of “vulnerable”, that the type of offending raised serious character concerns is essentially unaffected by the error.

61    On top of that, given the unaffected finding with regard to the expectation of the Australian community that Mr Garland’s visa should remain cancelled, it is inevitable on the approach taken by the Tribunal that the consideration of the expectations of the Australian community would, at least, “weigh strongly” against revocation. That intermediate conclusion is therefore also essentially unaffected by the error.

62    And finally, the conclusion that the considerations against revocation “significantly outweigh” the considerations going the other way indicates that even if the intermediate conclusions referred to above were given a different weight on account of the error not occurring, there is no realistic possibility that the considerations against revocation would be outweighed by the considerations the other way. That is to say, on the approach taken by the Tribunal and its other findings that are unaffected by the error, there is no realistic possibility that it might have reached a different conclusion.

63    The error by the Tribunal is therefore immaterial.

Conclusion on ground 1

64    In those circumstances, there is no reasonable prospect that the ultimate decision could have been any different. Ground 1 of the appeal accordingly fails. On that basis, Mr Garland should be refused leave to argue that as a new ground on appeal.

Appeal ground 2: irrelevant considerations

65    This ground can be dealt with very briefly as it clearly lacks any merit.

66    First, it is to be noted that in oral argument Dr Cox sought to put the ground quite differently from how it was put in the notice of appeal and in the written submissions. He argued that the Tribunal had failed to take into account what were said to be relevant considerations, rather than having taken into account irrelevant considerations. The Minister objects to that course, particularly because consideration of it would necessarily entail detailed consideration of the evidence before the Tribunal and how Mr Garland’s case was put to the Tribunal. That is because those matters are, relevantly, determinative of relevance: Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; 400 ALR 417 at [22] per Kiefel CJ, Keane, Gordon and Steward JJ. Not having been forewarned of that case, Mr Kaplan had not come to court prepared to meet it. That is entirely understandable. The Court should not entertain such a case.

67    Secondly, with regard to irrelevant considerations, there is no basis on which the identified matters (see [39(2)] above) are prohibited from being considered. From the perspective of logical reasoning, each of them could be regarded as possibly being relevant to the point in question, namely the risk of Mr Garland reoffending. The authorities recognise that the power under s 501CA(4) is a broad discretionary power: Plaintiff M1/2021 at [23]. Where a statute confers a broad discretionary power, the factors that may be taken into account in the exercise of that discretion are unconfined, except insofar as the subject matter, scope and purpose of the statute imply some limitation: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24 at 39-40 per Mason J; Seymour v Commissioner of Taxation [2016] FCAFC 18; 241 FCR 361 at [14] per Siopis J. Restraints, if any, imposed upon what a decision-maker may permissibly have regard to are therefore to be discerned through statutory construction: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 at [73] per McHugh, Gummow and Hayne JJ; Seymour at [47] per Griffiths J); except where a decision-maker has clearly acted beyond power by taking into consideration “corrupt or entirely personal and whimsical considerations”: Murphyores Inc Pty Ltd v Commonwealth [1976] HCA 20; 136 CLR 1 at 12 per Stephen J, Barwick CJ and Gibbs J agreeing. It is not Mr Garland’s case that the Tribunal took into account some obviously risible or inexplicable consideration. The highest that Mr Garland’s counsel could put the argument, as we understand it, was that the Tribunal had regard to factors that it was not required by statute to consider. In substance, Mr Garland’s complaint is that he disagrees with the Tribunal’s conclusion on his risk of reoffending. That is, however, not a basis for jurisdictional error – it is to take issue with the merits of the decision.

68    In the circumstances, ground 2 is doomed to fail and no leave should be granted to raise it as a new matter on appeal.

Conclusion

69    For those reasons, the appeal falls to be dismissed.

70    The parties were agreed that the costs should follow the event.

71    There should therefore be orders dismissing the appeal with costs.

Associate:

Dated: 25 August 2023

REASONS FOR JUDGMENT

FEUTRILL J:

72    I have had the advantage of reading the reasons for judgment of Stewart and Hespe JJ in draft. Subject to what follows, I agree with those reasons and that the appeal must be dismissed with costs. The joint reasons set out the background, statutory framework, Tribunal’s decision, grounds of appeal and the parties’ arguments in the appeal. I gratefully adopt the recitation of all those matters and, in these reasons, adopt the same definitions or descriptions as used in the joint reasons.

73    Direction 90 was given by the Minister pursuant to s 499 of the Act. A failure to comply with such a direction may result in jurisdictional error: FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 19 at [6]; Uelese v Minister for Immigration and Border Protection [2015] HCA 15; (2015) 256 CLR 203 at [64]-[68]. That may include a failure to comply with a direction based on a misconstruction of its terms.

74    However, “[o]rdinarily, a statute which impliedly requires [as a condition of a statutory conferral of decision-making authority that a decision-maker must proceed by reference to correct legal principles, correctly applied] is not to be interpreted as denying legal force and effect to every decision that might be made in breach of the condition. The statute is ordinarily to be interpreted as incorporating a threshold of materiality in the event of non-compliance”: Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123 at [29].

75    Materiality involves consideration of “the basal factual question of how the decision that was in fact made was in fact made”. That question is determined by proof of historical facts on the balance of probabilities. It is then necessary to consider whether the decision that was in fact made could have been different had the relevant condition been complied with “as a matter of reasonable conjecture within the parameters set by the historical facts that have been determined”: Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 403 ALR 398 at [32], citing MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 273 CLR 506 at [38].

76    There will generally be a realistic possibility that a decision-making process could have resulted in a different outcome if a party was denied an opportunity to present evidence or make submissions on an issue that required consideration. The standard “reasonable conjecture” is undemanding: Nathanson at [33]. The same may be said of a decision-maker that has failed to take into account a mandatory relevant consideration. There would generally be a realistic possibly of a different outcome unless the consideration was “so insignificant that the failure to take it into account could not have materially affected” the decision that was made: Hossain at [30] citing Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 40. The same principles apply where a consideration that a decision-maker was bound to disregard has been taken into account by that decision-maker.

77    In this case, as a result of the Tribunal misconstruing Direction 90, the Tribunal took into account and gave weight to a consideration that the appellant had committed offences against “vulnerable members of the community” within the meaning of that expression in section 8.4(2)(c) of Direction 90. That was an error in the construction and application of Direction 90.

78    The Tribunal concluded (at paragraph [105] of its reasons) with respect to the expectations of the Australian community:

Given the serious and violent nature of the Cancellation Offences, particularly the “assault occasioning bodily harm” offence against a vulnerable victim, I find that para 8.4 of Direction No 90, being the expectations of the Australian community, weighs strongly against the revocation of the Cancellation Decision.

79    Ultimately, the Tribunal concluded (at paragraph [147]) with respect to the weight to be given to the various considerations taken into account:

I find that the two primary considerations (the protection of the Australian community and the expectations of the Australian community) which weigh strongly against the revocation of the Cancellation Decision, significantly outweigh the other considerations that weigh in the Applicant’s favour. Although the Applicant’s links to the Australian community weigh moderately to strongly, and the extent of impediments if removed weighs slightly in favour of revocation of the Cancellation Decision, they do not outweigh the primary considerations that weigh in favour of revocation.

80    In my view, it is not possible to unpick the Tribunal’s reasons and reach the conclusion that the Tribunal’s incorrect construction of Direction 90 and consideration that the appellant’s offence was against a vulnerable member of the Australian community so as to conclude that ‘consideration’ was not material to the Tribunal’s ultimate conclusions. It was manifestly a consideration taken into account and, therefore, the counterfactual that there was a realistic possibility of a different outcome had it not been taken into account satisfies the undemanding ‘reasonable conjecture’ test. However, that is not the end of the materiality issue for the purposes of this appeal.

81    There is no express limitation on the considerations that the Minister (or a delegate) and, therefore, the Tribunal may take into account in the exercise of the discretion under s 501CA(4). In BOE21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 99 at [22]-[23] the Full Court (Farrell, Perry and Derrington JJ) considered it “well accepted that Direction 90 does not limit the matters which a decision-maker might take into account in determining whether there is another reason for revoking the cancellation decision. In addition, the weight given to a particular factor is a matter solely for the repository of the power.”

82    The substantive ‘consideration’ that the Tribunal took into account in reaching its conclusions was that the appellant had committed offences of a serious and violent nature against a ‘vulnerable victim’. The sentencing judge had considered that, due to the physical difference in size between the appellant and the victim and that the victim was outnumbered two-to-one, the victim was ‘vulnerable’. The sentencing judge had taken those matters into account as aggravating factors when sentencing the appellant. The Tribunal took into account the same matters in its assessment of the “nature of the … offences” for the purposes of section 8.4(2) of Direction 90. The Tribunal was entitled to take those matters into account and that the victim was ‘vulnerable’ in that sense in reaching its conclusions about the expectations of the Australian community and the weight attributed to that primary consideration. In short, the Tribunal’s error in the construction of Direction 90 has not resulted in it taking into account any consideration it was bound to disregard or failing to take into account a mandatory relevant consideration. Thus, the construction error was immaterial to the exercise of the Tribunal’s decision-making power.

Associate:

Dated: 25 August 2023