Federal Court of Australia

Nguyen v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 160

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellant pay the costs of the first respondent to be taxed 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    In 2021, Mr Giang Nam Nguyen was convicted of serious drug offences and was sentenced to two terms of imprisonment, one of five years and the other two years. In consequence, his visa was cancelled under s 501(3A) of the Migration Act 1958 (Cth). He made representations to the Minister for his visa cancellation to be revoked. A delegate of the Minister declined to exercise the power to revoke the cancellation afforded by s 501CA(4) of the Act. Mr Nguyen sought review in the Administrative Appeals Tribunal. The Tribunal affirmed the decision of the delegate.

2    Mr Nguyen then sought review for alleged jurisdictional error in this Court. Relevantly for present purposes, his application alleged a failure by the Tribunal to give proper, genuine and realistic consideration to representations made by Mr Nguyen regarding the impact of the cancellation of his visa on his nephews. Reliance was placed upon the terms of a direction made by the Minister with which the Tribunal had been required to comply. The direction, commonly known as 'Direction 99', had been published in the exercise of the power conferred upon the Minister by s 499 of the Act to give directions to a body having functions or powers under the Act as to the performance of those functions or the exercise of those powers. The direction specified certain matters that the Tribunal was required to take into account in making its decision in the sense that a failure to do so would be a failure to perform the decision-making task entrusted to the Tribunal: s 499(2A) and FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 19 at [6].

3    Mr Nguyen's application to this Court was dismissed. He now brings an appeal. The sole ground of appeal alleges error by the primary judge 'in finding that the Tribunal had not failed to give genuine consideration to the best interests of [Mr Nguyen's] nephews'. An additional ground of appeal was not pressed.

4    It might be thought that, in substance, the appeal seeks only to challenge a factual finding by the primary judge to the effect that it should be inferred from the reasons given by the Tribunal that it had given genuine consideration to the best interests of Mr Nguyen's nephews in making its decision. However, the appeal gives rise to two distinct issues. First, as a matter of law, precisely what was the nature of the Tribunal's task when it came to complying with those parts of the direction that concerned the best interests of children affected by the decision to be made by the Tribunal. Second, having regard to the nature of the Tribunal's task, on the evidence before the primary judge was his Honour in error in concluding that the task had been performed.

5    As has been often said, the use of terminology like 'genuine consideration' without due context is apt to distract in this area. What is required is the precise identification of the nature of the decision-making task, specifically the characteristics of the decision that must exist in order for it to both be within the extent of the decision-making authority conferred on the decision-maker and due discharge of that authority. It is not for this Court, under cover of a vague rubric like 'failure to genuinely consider', to arrogate the decision-making authority entrusted to another and give effect to its own view as to the way in which it would exercise the decision-making authority as if had been entrusted to the Court. Rather, it is necessary to focus upon the extent of the decision-maker's authority and any necessary conditions to its valid exercise. Where, as here, the decision-making authority is statutory, that requires consideration of the way in which the legislature has expressed the extent of that authority.

6    We begin with the relevant aspects of the direction, which takes effect by s 499.

The relevant terms of the direction with which the Tribunal was required to comply

7    The direction identifies factors (elsewhere also described in the direction as 'principles') that must be considered in making a decision under s 501CA (to the extent they are relevant in the particular case) (s 5.2). The direction then states (in s 6):

Informed by the principles in paragraph 5.2, a decision-maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.

(emphasis added)

8    The direction specifies that 'primary considerations' should generally be given greater weight than the 'other considerations' (s 7). It then specifies the primary considerations (s 8). The fourth of the primary considerations is 'the best interests of minor children in Australia' (s 8(4)). Although described as 'considerations', the direction does not provide for them to be considered. Rather, as provided in s 6 (quoted above), compliance with the direction requires the Tribunal to take into account the considerations. We consider below the significance of the requirement to take the considerations into account (where relevant) in making a decision.

9    Next, there are more detailed provisions that deal sequentially with each of the 'primary considerations'. When dealing with the fourth primary consideration, the direction begins by stating that decision-makers 'must make a determination about whether … non-revocation is, or is not, in the best interests of a child affected by the decision' (s 8.4(1)). Then, after specifying that the child must have been under 18 years of age when the decision was made not to revoke the visa cancellation (s 8.4(2)) and stating that the interests of each child should be given individual consideration (s 8.4(3)), the direction lists factors that 'must be considered where relevant' (s 8.4(4)) (emphasis added). The list is as follows:

a)    the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);

b)    the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;

c)    the impact of the non-citizen's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;

d)    the likely effect that any separation from the non-citizen would have on the child, taking into account the child's or non-citizen's ability to maintain contact in other ways;

e)    whether there are other persons who already fulfil a parental role in relation to the child;

f)    any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);

g)    evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;

h)    evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.

(emphasis added)

10    The paragraph that is emphasised above was the focus of much of the case advanced for Mr Nguyen on the appeal. There was also some reliance upon the terms of s 8.4(4)(f) as to 'any known views of the child'.

11    At times, the contentions were put in terms that suggested that the due discharge by the Tribunal of its decision-making function required the Tribunal, in reaching its ultimate decision, to take into account each of the matters listed in s 8.4(4) of the direction, especially the matter in s 8.4(4)(d) concerning the likely effect that any separation would have on the child. It will be necessary, in due course, to consider whether that is the correct approach.

12    However, before turning to that issue, we will first consider the relevant aspects of the reasons of the Tribunal, then summarise the contentions advanced in support of the appeal and then consider that issue when addressing the appeal ground as formulated.

Relevant aspects of the Tribunal's reasoning

13    Consideration of the Tribunal's reasons as a whole exposes the following:

(1)    The Tribunal correctly identified s 501CA(4) as the source of the discretionary decision-making power it was exercising (paras 6-10).

(2)    The Tribunal then referred to the direction as identifying 'the considerations the Tribunal must have regard to when determining whether to exercise the discretion' (para 12).

(3)    The Tribunal listed the primary and other considerations as set out in the direction (paras 13-14).

(4)    The Tribunal correctly expressed the issue for determination as being 'whether there is "another reason" why the decision to cancel [Mr Nguyen's] visa should be revoked pursuant to s 501CA(4)' (para 15).

(5)    Then under the heading 'EVIDENCE' the Tribunal referred to aspects of the evidence that was given (paras 16-53). It did so under various sub-headings. The submissions for Mr Nguyen characterised this part of the reasoning as a recital of aspects of the evidence that did not involve the making of any findings. It is true that the paragraphs did not in terms state that the evidence was accepted. However, as we will explain, regard to later aspects of the reasoning shows that the Tribunal made express findings where it formed views that it did not accept aspects of the evidence to which it referred. Further, as will emerge, it otherwise proceeded on a basis that indicated it accepted the matters set out in the EVIDENCE section of its reasons.

(6)    Within the section headed EVIDENCE the Tribunal recorded the following aspects of the evidence in passages that are of particular significance for present purposes:

(a)    as to the evidence of Mr Nguyen, the Tribunal said (paras 25-26):

[Mr Nguyen's] evidence was he is very close to his two nephews, who are the sons of his sister in law … His evidence was that their father had died when they were very young and that he wanted to ensure that both children were well educated and did better than he had. He said they need to understand what he has done and learn from his experience.

[Mr Nguyen] gave evidence that he is a father to his nephews and their mother their main carer. He said that even though their time together was short he had taken them to school daily when he was residing in the community. In particular he said that his eldest nephew, who is now 16 years old always came to him for advice, and that they had continued communicating through [his sister-in-law] while he has been in prison and detention.

(b)    as to evidence of Mr Nguyen's sister-in-law (the mother of his nephews), the Tribunal said (paras 50-51):

When asked about how her sons would feel if [Mr Nguyen] was removed from Australia, [his sister-in-law] said that her eldest son had spoken to her this morning and requested to accompany her to the Tribunal that morning. She said that he had asked her to tell the Tribunal to forgive [Mr Nguyen] so he can teach them to become good men'.

If [Mr Nguyen] were to be removed from Australia, [his sister-in-law] believes that her children would be 'shocked' and without a male role model in the family. She said losing [Mr Nguyen] would be a big loss to her family and that she needed [Mr Nguyen's] help raising her sons because she has diabetes and was in poor health.

(7)    The Tribunal then undertook reasoning as to each of the primary considerations in the direction. It did so sequentially. In doing so, the Tribunal referred to additional aspects of the evidence and reasoned to conclusions as to each consideration. It also made relevant findings as to factual matters in contention: see, for example, paras 78-80 (as to primary consideration (1)), a finding on the basis of 'no evidence' at para 86 (as to primary consideration (2)) and paras 89 and 94 (as to primary consideration (3)).

(8)    The Tribunal then addressed primary consideration (4), being the best interests of minor children in Australia affected by the decision (paras 95 to 100). This is a key part of the reasons for present purposes.

(9)    The Tribunal began this key part by summarising the factors in the list in s 8.4(4), describing them as 'factors to be considered in assessing the best interests of minor children' (para 95).

(10)    The Tribunal then said that Mr Nguyen contended that it was in the best interests of his nephews that he be able to remain in Australia (para 96).

(11)    The Tribunal then referred to some further evidence given by Mr Nguyen's sister-in-law in the following terms:

The boys' mother … gave evidence that [Mr Nguyen] has a close relationship with his nephews. It was her evidence that the boys both look up to [Mr Nguyen] and see him as a 'secondary father', particularly as their own father passed away when Child B was two months old. When not in prison or detention, [Mr Nguyen] regularly cared for the children and took them to the cinema, sporting events or dinner. Both children are attached to [Mr Nguyen] and [his sister-in-law] is concerned that they will suffer without him. She states that he has been important in their development as they respect and listen to [him].

(12)    The Tribunal then referred to a statement from 'Child A' acknowledging that he and his brother had not seen Mr Nguyen for two years and stating that they remain close and Mr Nguyen 'loved us like his own children' (para 98).

(13)    The Tribunal then reasoned as follows (paras 99-100):

The children live with their mother and the relationship they have with [Mr Nguyen] is non-parental and he is not a primary care giver. Nonetheless, it is recognised both children stayed with [Mr Nguyen's] family at times and share a close relationship with [Mr Nguyen] despite limited recent interaction owing to his having been in prison or detention for most of their lives.

I am satisfied that the primary consideration of the best interests of minor children in Australia affected by the decision weighs in favour of revoking the cancellation of [Mr Nguyen's] visa.

(14)    After dealing with primary consideration (5) and the other considerations the Tribunal included the following under the heading 'CONCLUSION' (para 120):

[Mr Nguyen's] partner, daughter and sister-in-law in particular have provided detailed and compelling evidence as to how [Mr Nguyen's] removal would be detrimental to them. [Mr Nguyen's] ties to Australia are afforded significant weight in favour of revocation. The best interests of [Mr Nguyen's] two nephews also weigh in favour of revocation. However, the relationship he has with his nephews is non-parental and there have been long periods of absence. Nonetheless, he performs a 'father like' role and this primary consideration is afforded moderate weight in favour of revocation.

The first part of that paragraph is dealing with the separate (albeit factually related) issue of ties to the Australian community. It is the last three sentences of the paragraph that record the reasoning in the conclusion as to primary consideration (4).

The appellant's contentions in support of the appeal

14    The contentions for Mr Nguyen as to the nature of the Tribunal's task were to the effect that s 8.4(4) (that is, the likely effect that any separation would have on the child, taking into account the child's or non-citizen's ability to maintain contact in other ways) was 'the critical consideration'. It was that part of the direction with which the Tribunal was said to have failed to comply.

15    It was accepted that the Tribunal referred to the direction and the requirement to consider the matters set out in s 8.4(4). As we have observed, the Tribunal expressly referred to the matter of 'the likely effect that any separation from the person would have on the child' (para 95). It was also accepted that the Tribunal identified the evidence in respect of that consideration. However, it was claimed that the Tribunal then fell into error in the consideration of that matter because:

(1)    the Tribunal did not expressly make findings as to the likely effect that separation from Mr Nguyen would have on his nephews; and

(2)    the Tribunal also did not evaluate and analyse those findings in a way that would amount to their genuine consideration for the purposes of the direction.

16    Reliance was placed upon the decision of the High Court in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12 at [33], where the plurality considered whether the jurisdictional error that had been found to have occurred (being a failure to comply with an earlier version of the direction as required by s 499) was material. In doing so, their Honours summarised the nature of the error in the following way:

The error of the Tribunal was a breach by a statutory decision-maker of a condition governing the process of reasoning to be undertaken in exercising the decision-making power under s 501CA(4). The condition imposed by s 499(2A) by reference to Direction 90 required the Tribunal to take into account, as mandatory considerations, the primary considerations identified in para 8 and the other considerations in para 9, where those considerations were relevant to the decision. Fulfilment of the condition required the Tribunal to identify which of those mandatory considerations were relevant to the particular circumstances of the particular applicant. Then, having identified the relevant mandatory considerations, the exercise of the discretion under s 501CA(4) required the Tribunal to engage in an evaluative assessment involving the weighing of those relevant mandatory considerations with other relevant considerations.

(original emphasis)

17    However, the decision in LPDT did not concern the way in which s 8.4(4) was to be approached. As has been noted, s 8.4(4) was not expressed as a primary or other consideration that the Tribunal was required to take into account. Rather, the list in that part of the direction was concerned with identifying matters to be considered by the Tribunal when it came to the formation of views in respect of the best interests of minor children in Australia affected by the decision. It was the outcome of that aspect of the Tribunal's deliberations that the Tribunal was then required to take into account as a mandatory consideration. This is addressed further below. It was not the case, as the submissions for Mr Nguyen intimated, that LPDT concerned what was required for the Tribunal to comply with s 8.4(4) of the direction. Rather, the above passage from LPDT was concerned with describing the way in which the Tribunal was required to approach its overall task by having regard to the primary and other considerations for the purpose of reaching a view as to the materiality or otherwise of the error in that case.

18    Considerable reliance was also placed upon the decision in Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 172; (2021) 287 FCR 294 in which the alleged error in the making of the decision by the Minister concerned whether the Minister had considered a representation by a person seeking the revocation of the cancellation of a visa in the exercise of the power conferred by s 501CA(4). The conclusion reached was that the Minister failed to form the required state of satisfaction by reference to the information before him as to the seriousness of the harm to the children that was likely if the visa cancellation was not revoked: at [42].

19    The reasoning in Bettencourt involved the application of the then state of authority as to what was required by the Minister in making a decision of that kind: see the summary at [27]-[28]. In particular, the reasoning applied the propositions that 'a state of satisfaction that is formed without considering a substantial or significant and clearly expressed claim made in the representations … is not a state of satisfaction of the kind required by the statute' ([27](4)) and that 'there must be a real and genuine consideration of each such substantial or significant and clearly expressed claim' ([27](5)).

20    However, after Bettencourt, the High Court delivered its reasons in Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 275 CLR 582 in which the proper approach to representations made by an applicant seeking the exercise of the power conferred by s 501CA(4) was articulated in the following terms (at [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.

(footnotes omitted)

21    Further, as to the concept of 'real and genuine consideration', the High Court said at [26]-[27]:

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

(footnotes omitted)

22    The High Court concluded that part of its reasons by saying (at [27]):

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

(footnotes omitted)

23    Therefore, care must be taken when it comes to the reasoning in Bettencourt. Since Plaintiff M1/2021 it can no longer be said that the Minister in deciding whether to exercise the power conferred by s 501CA(4) is required to form the necessary state of satisfaction by considering the representations made to the Minister. Provided the Minister reads, identifies, understands and evaluates the substantial and clearly expressed claims in the representations, it is a matter for the Minister as to what, if any, weight is given to those claims and whether a matter is brought to bear in making the decision: see ECE21 v Minister for Home Affairs [2023] FCAFC 52; (2023) 297 FCR 422 at [6]-[9]. The requirement to consider those representations (and the materials they rely upon) does not go any further.

24    Further, the decision-making task to be undertaken by the Minister is different to that which the Tribunal undertakes. That is because the Minister is not required to give effect to the direction and it is a matter for the Minister, within the bounds of reasonableness and rationality, to form a view as to the matters that are of significance. In contrast, as has been explained, by reason of the terms of the direction, there are matters to which the Tribunal must have regard. They are, in the language of the authorities, mandatory considerations such that failure to have regard to them in making the decision whether to exercise the power conferred by s 501CA(4) will amount to jurisdictional error.

25    Finally, the analysis undertaken of the Minister's reasons in Bettencourt at [43]-[48] is fact specific.

26    For all those reasons, the analysis in Bettencourt does not assist Mr Nguyen's claim.

27    In oral submissions, reliance was placed upon reasoning in Fraser v Minister for Immigration and Border Protection [2014] FCA 1333 at [22] to the effect that what is required when a mandatory consideration is to be taken into account is 'more than mere lip-service' and it is not sufficient to simply advert to the issue or to adopt a process of reasoning that is 'merely formulaic'. These are ways of exposing instances where the approach of the decision-maker is so deficient that it provides the basis for demonstrating jurisdictional error on the basis of a factual conclusion that there has, in substance, been a failure to have regard to a mandatory consideration (that is one which, on a proper construction of the conferral of decision-making power, is a consideration that must be brought to bear in the making of the decision).

28    It was said that the reasons of the Tribunal were in that territory because, so it was submitted, there was no qualitative evaluation or analysis in the part of the reasons that dealt with the best interests of the minor children who were affected by the decision. It was said that this was so because the reasons did not address the matters listed in s 8.4(4). The submission to that effect tended to elide the present case (which concerned a list of matters to be considered) with a different case (where there was an obligation to have regard to specified matters).

29    As to the nature of the evaluation or analysis that was required when it came to compliance with the terms of s 8.4(4) of the direction, it was submitted that the reasoning in Jabari v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 98; (2023) 298 FCR 431 should be applied. It was a case where the issue was whether the Tribunal had complied with the equivalent part of an earlier version of the direction. The claim was that the Tribunal had failed to give proper consideration to the equivalent paragraph to what is now s 8.4(4)(d) in the direction. In Jabari, the Full Court (comprising Katzmann, Jackson and McEvoy JJ) summarised the established principles about 'the degree of consideration required' (at [55]). They are of particular significance in the present case because the primary judge cited them as the principles to be applied.

30    The summary was as follows:

(1)    A conclusion that the decision maker 'has not engaged in an active intellectual process will not lightly be made and must be supported by clear evidence, bearing in mind that the judicial review applicants carry the onus of proof'.

(2)    What is required is the reality of consideration by the decision maker, the Court on judicial review being required to assess, in a qualitative way, whether the decision maker has, as a matter of substance, had regard to the relevant matter.

(3)    The onus lies on the appellant to establish on the balance of probabilities that a relevant matter was not considered, taking into account that the reasons of the Tribunal must be read fairly and not in an unduly critical manner.

(4)    Although the likely effect that any separation from [the applicant] would have had on his children was a mandatory consideration because of Direction 90 [(since replaced by Direction 99)], not because it was among his representations, the representations nevertheless remain relevant. The requisite degree of consideration is affected by the centrality, to the issues, of the matter with which it is said the decision maker did not engage, and the prominence the matter assumed in the representations. It is not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. The fundamental question is the importance of the material to the exercise of the Tribunal's function and thus the seriousness of any error.

(5)    Whether or not a matter has been considered can be a matter of inference drawn from the reasons as a whole. For example, there may be material that is so obviously relevant that it is unthinkable that the Tribunal would not have referred to it if it had actually considered it. On the other hand, the inference that a failure to set out reasoning in relation to a matter signifies a failure to consider it should not be drawn too readily where the reasons are otherwise comprehensive, and the issue has at least been identified at some point.

(citations omitted)

31    In Jabari, it was concluded, on the facts, that the Tribunal had failed to consider the trauma the relevant children were suffering and would suffer into the future due to the absence of one of their parents, being a significant matter arising on the material before the Tribunal in circumstances where the Tribunal was required by the direction to consider the likely effect that separation would have on the children: at [27], [57]-[61].

32    Therefore, Jabari, as might be expected given the nature of the alleged jurisdictional error, was a case concerned with whether the requirement to consider the matter listed in the direction had been undertaken.

33    In Jabari, the view was also expressed that representations to the Tribunal about the likely effect of separation of the children were 'mandatory relevant considerations' by reason of the terms of the direction that contained the equivalent provisions to s 8.4(4)(d) in the present case: at [55]. By that statement, we take their Honours to mean that the requirement in the direction to consider the matters in s 8.4(4)(d) in reaching a view about the best interests of the relevant children had to be complied with by reason of the terms of s 499(2A). Further, any failure to comply with that aspect of the direction would amount to jurisdictional error. The reasoning in Jabari does not suggest that each of the matters listed as requiring consideration in making a determination as to whether revocation of the visa cancellation was or was not in the best interests of the children was itself a matter that was required to be brought to account in deciding whether to exercise the power to revoke afforded by s 501CA(4).

34    Finally, as to s 8.4(4)(f) ('any known views of the child'), the contention was that it was not considered because the only reference to the views of the nephews was in a part of the reasons that was 'a mere summary of [the] evidence'.

The issues raised by the formulation of the ground of appeal

35    As we explained at the outset, the appeal ground raises two distinct issues. We repeat them here for ease of reference:

(1)    as a matter of law, precisely what was the nature of the Tribunal's task when it came to complying with those parts of the direction that concerned the best interests of children affected by the decision to be made by the Tribunal; and

(2)    having regard to the nature of the Tribunal's task, on the evidence before the primary judge was his Honour in error in concluding that the task had been performed.

36    We will deal with these two issues sequentially.

The nature of the Tribunal's task in the present case

37    At times, the contentions for Mr Nguyen seemed to be founded upon an unstated assertion that the matters listed in s 8.4(4) were each required to be reckoned in reaching a conclusion as to whether to revoke the visa cancellation, in the sense that they each had to be brought to account in the synthesis of the relevant mandatory considerations to be brought to bear when undertaking the overall decision-making task.

38    However, any such approach to what is required by the direction would not be correct. What the decision-maker must 'take into account' are the primary and other considerations specified in the direction, relevantly for present purposes 'the best interests of minor children in Australia'. So much is required by s 6 and by the lists of the primary and other considerations in the opening parts of s 8 and s 9 respectively.

39    Section 8.4(4) forms part of further detail in the direction as to the way in which the determination is to be made as to whether or not non-revocation is in the best interests of a child affected by the decision.

40    Importantly, the factors listed in s 8.4(4) are required to be considered in making the determination as to whether revocation is or is not in the best interest of each child affected by the decision. Ultimately, the primary consideration to which there must be regard is the best interests of minor children in Australia, not each of the matters listed in s 8.4(4). It is not the case that there must be regard to each of the matters in the list in respect of each child in order to comply with the direction.

41    Ultimately, it is the determination as to whether revocation is or is not in the best interests of a child to which the decision-maker must have regard in making the decision. That determination may be expected to include within it a view on the part of the decision-maker as to the quality or character of the significance of that primary consideration that is formed after considering the matters listed in s 8.4(4). That is to say, a proper determination, as required by the direction, as to the interests of the child will have within it an evaluative view as to the significance or otherwise of the effect upon the interests of each affected child. However, each of the factors listed in s 8.4(4), as matters to be considered in making a determination as to primary consideration (4), do not carry through as matters that must be taken into account in making the final decision. Rather, there must be consideration of them by the decision-maker when forming a view as to primary consideration (4) which, in turn, is the matter to which there must be regard in making the final decision.

42    It follows that although consideration of the matters listed in s 8.4(4) may be expected to guide the determination required by s 8.4(1) to be made, it is the overall view that is formed by considering the matters in the list that is to be 'taken into account' and weighed with the other considerations. It is wrong to view the decision to be made as to whether to revoke the visa cancellation as one which requires each of the factors that are listed in s 8.4(4) to be taken into account as part of the final weighing exercise to be undertaken in order to comply with the direction.

43    The nature and extent of an obligation to consider will depend upon the circumstances. In that respect it is like the related expression 'have regard to': Re Michael; Ex parte Epic Energy (WA) Nominees Pty Ltd [2002] WASCA 231; (2002) 25 WAR 511 at [50]‑[56] and Minister for Immigration and Citizenship v Khadgi [2010] FCAFC 145; (2010) 190 FCR 248 at [60]‑[62].

44    As we have explained, the nature of an obligation to consider was addressed in Plaintiff M1/2021 at [24], albeit in a context where the issue concerned the Minister's obligation when deciding whether to exercise the power conferred by s 501CA(4) to consider the representations made by a person seeking the favourable exercise of the power to revoke the cancellation when personally discharging that decision-making obligation. In that context it was held that a requirement to consider is satisfied if the decision-maker reads, identifies, understands and evaluates the relevant material. Then the decision-maker might sift the material, attributing whatever weight or persuasive quality is thought appropriate. However, the weight to be afforded to the material is a matter for the decision-maker. Therefore, a matter that has been duly considered might not be reckoned in making the decision, subject to meeting requirements for reasonableness and rationality.

45    In our view, s 8.4(4) of the direction is complied with by a decision-maker taking an approach of the kind described in Plaintiff M1/2021. Elsewhere in the direction, as we have mentioned, the requirement is to 'take into account'. The contents of the list in s 8.4(4) and the fact that the listed factors are required to be considered in making a determination as to primary consideration (4) reinforce that view. Further, views to the effect that 'consider' requires that matters be given 'proper, genuine and realistic consideration' do not state the correct approach: see Plaintiff M1/2021 at [26] and the authorities at fn 50.

The alleged error by the primary judge

46    Having regard to the nature of the Tribunal's task and the contentions advanced for Mr Nguyen, the primary judge is alleged to have erred in not finding that the Tribunal failed to consider the factors in s 8(4)(d) and (f) of the direction (and consequently in not upholding the claim of alleged jurisdictional error by the Tribunal).

47    For reasons we have given, the primary judge was correct to apply Jabari.

48    Also, it should be noted that some aspects of the way the case was put to the primary judge were not pressed on appeal. We confine what follows to the contentions advanced on appeal.

49    To the extent that the primary judge was said to have erred in not finding that the Tribunal had failed to make the requisite factual findings and had simply recited the evidence, we do not accept the premise for that contention. It is apparent from the overall structure of the Tribunal's reasons that the material referred to under the heading EVIDENCE was material that the Tribunal accepted. Regard to the parts of the reasons where the primary considerations are addressed shows that to the limited extent that the Tribunal considered there were contentious aspects as to the findings that should be made, those matters were addressed at that point. Otherwise, the reasoning proceeded on the basis that the material summarised under the heading EVIDENCE was accepted by the Tribunal.

50    It was submitted that the Tribunal did not undertake the required assessment because it did not expressly refer to the matters that it had set out under the heading EVIDENCE when dealing with primary consideration (4) later in its reasons and the primary judge went too far in inferring that the required consideration had been undertaken. For reasons we have given, we do not accept that the primary judge was in error in inferring that matters referred to in the earlier part of the Tribunal's reasons had been brought to account by the Tribunal in its deliberations as to the matters in s 8.4(4). We infer that the material addressed under the heading EVIDENCE was included because it was considered to be relevant and was to inform what followed. Therefore, the submission to the effect that the Tribunal had not considered the known views of the nephews must be rejected. As we have explained, those views were referred to in the EVIDENCE section, with some additional material being expressly referred to when dealing with the primary consideration (4). It should be inferred that matters addressed under the heading EVIDENCE were referred to by the Tribunal because it had formed the view that they were material to the decision it was required to make.

51    It was then submitted that the primary judge was in error in not finding that the critical step of undertaking a qualitative evaluation or assessment of that evidence was not undertaken. To the extent that the submission relied upon Bettencourt, for reasons we have given we are of the view that the reasoning in that case does not assist. Otherwise, as we have explained, it is necessary to focus upon what was required to comply with the direction when it said that the decision-maker must consider the factors listed in s 8.4(4) in making the determination for the purposes of the direction as to whether or not non-revocation was in a child's best interests.

52    In that regard, aside from what is said under the heading 'CONCLUSION', the reasons comprise (a) references to the evidence (thereby accepting that evidence); (b) a reference to the terms of s 8.4(4); (c) a statement (expressed at a very high level of generality) of the nature of the contentions advanced by Mr Nguyen; and (d) an otherwise unreasoned conclusion that the primary consideration of the best interests of the minor children in Australia weighs in favour of revoking the visa cancellation.

53    Even so, the reasoning shows that the Tribunal read, identified and understood the relevant material. The question is whether it evaluated the significance of that material in reaching a conclusion as to the weight those matters should be given in making the determination that the consideration weighs in favour of revoking the visa cancellation.

54    As to that aspect, in our view, it may be inferred from the way in which the issue is addressed in the CONCLUSION that the material was evaluated. We repeat the three relevant sentences:

The best interests of [Mr Nguyen's] two nephews also weigh in favour of revocation. However, the relationship he has with his nephews is non-parental and there have been long periods of absence. Nonetheless, he performs a 'father like' role and this primary consideration is afforded moderate weight in favour of revocation.

55    The form in which this part of the Tribunal's conclusion is expressed shows that the Tribunal, in fact, evaluated the material concerning the effect upon the two nephews if the visa cancellation was not revoked and Mr Nguyen was removed from Australia. It is not necessary to go further in order to conclude that the primary judge was correct. The evidential findings to be made and the evaluation of them were matters for the Tribunal.

56    Significantly, the findings that were made by the Tribunal (within its jurisdiction) that the relationship between Mr Nguyen and his two nephews is 'non-parental and there have been long periods of absence' put this in a different category to the circumstances of the other cases relied upon. Those other cases have concerned instances where a child will be deprived of the support and affection of a parent and there was detailed material about the relationship with the child that was not addressed in the reasons. In such cases, an inference may be drawn from the limited attention in the reasons to the detailed material that it was not considered.

57    Here, it is not suggested that material aspects of the evidence or matters advanced to the Tribunal as to the best interests of the nephews were not addressed, or were addressed in a manner that was so perfunctory or general that it may be concluded that they were not considered. Once it is concluded that the matters under the heading EVIDENCE formed part of that which was considered by the Tribunal and there is due regard to the form in which the Tribunal's conclusion was expressed then no error has been demonstrated in the primary judge's rejection of Mr Nguyen's application.

58    Cases of this kind are difficult. They deal with the cascading effects for those who will remain in Australia of the conduct of a person who has jeopardised their visa status by engaging in criminal conduct. We should not be thought to be saying anything about the importance to Mr Nguyen's nephews of this case or their affection for him. The task for this Court is to ensure that the Tribunal has acted with its authority. For reasons we have given, we are not persuaded that there was any error by the primary judge in concluding that the Tribunal did not exceed its authority in deciding that the cancellation of Mr Nguyen's visa should not be revoked under s 501CA(4).

59    It follows that the appeal must be dismissed with costs.

Associate:

Dated:    12 December 2024