Federal Court of Australia

Brar v Minister for Immigration and Citizenship [2025] FCAFC 138

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs as taxed, assessed or otherwise agreed.

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

REASONS FOR JUDGMENT

PERRAM, MEAGHER AND MCDONALD JJ:

1    The appellant pleaded guilty in the District Court of Queensland to one count of dangerous operation of a motor vehicle causing death and grievous bodily harm and one count of unlicensed driving. He was sentenced to a term of five years’ imprisonment which was to be suspended after 20 months. Because the sentence was for a term of imprisonment which exceeded 12 months in duration, this meant that the appellant was taken to have a ‘substantial criminal record’ by s 501(7) of the Migration Act 1958 (Cth) (the ‘Act’). By s‍ 501(CA), where a delegate of the Minister administering the Act (the ‘Minister’) is satisfied that a non-citizen who holds a visa has a substantial criminal record then the visa is automatically cancelled by force of s 501(3A).

2    Whilst the appellant was serving his time, a delegate of the Minister became aware that he had been sentenced to a term of imprisonment exceeding 12 months and the appellant’s visa was therefore automatically cancelled. Upon his release from gaol, he was taken into immigration detention since he no longer held a visa.

3    An application by the appellant to another delegate of the Minister under s 501CA(4) to reinstate his visa was unsuccessful. The appellant then sought a review of that decision in the Administrative Appeals Tribunal (the ‘Tribunal’) but the Tribunal affirmed the delegate’s decision: Brar v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] AATA 1154.

4    A judicial review proceeding was then filed in this Court. That application was dismissed by the primary judge: Brar v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 1150.

5    The appellant did not file his appeal to the Full Court from that decision within the prescribed time and he therefore required an extension of time. That extension of time was granted at the outset of the present hearing.

6    There are two grounds of appeal. Broadly, ground 1 relates to a statement by the Tribunal that the appellant had been convicted of exceeding the speed limit on five occasions. Ground 2 concerns whether the Tribunal took into account the fact that the appellant’s older son had said that he loved his father.

Ground 1

The meaning of the word ‘conviction’: Ground 1(a)

7    In deciding whether to reinstate the appellant’s visa, the Tribunal was obliged to consider the frequency of the appellant’s offending. This was the combined effect of: (a) s 499 of the Act which requires decision-makers under the Act to comply with any directions given by the Minister under s 499 about the performance of their functions or powers; (b) Direction 99 (the ‘Direction’) which was such a direction dealing with the general topic of visa cancellation on character grounds; and, (c) paragraph 8.1.1(1)(d) of Direction 99 which required decision-makers acting under s 501CA(4) to take into account the frequency of the relevant offending.

8    The evidence before the Tribunal pertinent to the frequency of the appellant’s offending included remarks made by the sentencing judge at the time that the appellant was sentenced to a term of imprisonment. Those remarks referred to the fact that the appellant was ‘convicted of exceeding the speed limit five times previously’. Under cross-examination before the Tribunal, the appellant was asked whether he agreed with that statement and he confirmed that he did.

9    In the course of assessing the frequency of the appellant’s offending, the Tribunal dealt with these five speeding offences but was disinclined to give them much weight (‘I do not attach much weight to Mr Brar’s speeding’: [35]). This was because the Tribunal did not have any information about the speeding convictions beyond the fact that they had been referred to by the sentencing court: [28]. In particular, whilst the District Court would appear to have had the appellant’s traffic record before it, that record was not before the Tribunal.

10    The appellant’s case before the primary judge was that there could not be a conviction without a judicial determination of guilt and there was no evidence before the Tribunal that the appellant had been judicially determined to be guilty of the speeding offences. Thus, whilst the appellant agreed under cross-examination in the Tribunal that he had been convicted of the five speeding offences, he nevertheless sought to persuade the primary judge that there was no evidence that this was so. There was no such evidence, so he submitted, because his evidence and the sentencing remarks of the District Court did not prove that there had been a judicial determination of the appellant’s guilt.

11    To make this submission sound perhaps less outré than it otherwise might first appear to be, it was also the appellant’s evidence that he had no recollection of ever attending court in respect of the speeding offences although he did recall that he had failed to pay some speeding fines.

12    The appellant’s submission turns on what the Tribunal intended by the word ‘convicted’ and, once that meaning is ascertained, whether there was evidence which was capable of showing that the appellant had been convicted of the five speeding offences in that sense.

13    The primary judge rejected the appellant’s submission about the meaning of the word ‘convicted’. His Honour considered that the Tribunal had intended to use the word ‘convicted’ in the same sense that the District Court had used it. The primary judge concluded that both the District Court and the Tribunal intended by their respective statements that the appellant had convictions for the five speeding offences to convey only that the appellant had committed the five speeding offences that were apparently recorded on his traffic record: [39]. On this view, the precise legal mechanics by which the State had determined that the appellant had committed the offences was not really the point of the inquiry.

14    Before this Court, the appellant submitted that the primary judge had misunderstood the submission he had made. He denied that he had submitted to the primary judge that the word ‘conviction’ had only one meaning as a matter of law. Rather, what he had submitted was that the word ‘conviction’ should have been used in the sense it was used in the Direction. He instanced paragraphs 8.1.1(1)(a)(iii), 8.1.1(1)(b)(i) and 8.2(2)(a) of the Direction as examples where the word ‘conviction’ was used, according to the submission, in circumstances which suggested the need for a judicial determination of guilt.

15    This submission goes nowhere. The appellant’s submission at first instance was that the word ‘conviction’ required that there should be a judicial determination of guilt. This is the submission which the primary judge considered and rejected. It is irrelevant whether the appellant claimed it had that meaning because that was what the word meant at law or because that was what the word meant in the Direction. Both contentions end up in the same place.

16    The reason the primary judge rejected the submission was because his Honour thought that the Tribunal had intended by the word ‘conviction’ the same as the District Court had meant when it used it in its sentencing remarks; that is to say, that the appellant had committed the five speeding offences which apparently appeared on his traffic record which was before the District Court.

17    The appellant next attacked the reasoning of the primary judge that the Tribunal intended by the word ‘conviction’ the same as had been intended by the District Court, i.e., that the appellant had committed the five speeding offences. In the appellant’s submission, there was nothing to support the notion that the Tribunal had been using the expression in the same way that the District Court had been using it.

18    This submission cannot stand in the face of the words used by the Tribunal at [28]: ‘Although Mr Brar has convictions for speeding according to the sentencing Court, I do not equate these with dangerous driving.’ The words ‘according to the sentencing Court’ show that the Tribunal was aligning its approach with that of the District Court. Against this, the appellant submitted that the Tribunal and the District Court were performing different tasks against different legislative backdrops.

19    Whilst that is no doubt true, what is also true is that they were both engaged in seeking to gauge the extent of the appellant’s offending. Whether the appellant had been judicially determined to have committed those offences or whether his guilt had been determined by some other procedural means was irrelevant to that purpose. Put another way, what was involved in both instances was an assessment of wrongdoing and/or risk; it was not an adventure in legal taxonomy.

20    Ground 1(a) should be rejected.

No evidence of convictions: Ground 1(b) and (c)

21    Before the primary judge the appellant submitted that there was no evidence that he had been found guilty by a judicial determination of the five speeding offences. Because the appellant has failed on ground 1(a), the question which now arises is a little different. It is whether there was any evidence before the Tribunal that the appellant had committed the five speeding offences. This was the sense in which the Tribunal used the word ‘conviction’. We have upheld the primary judge’s reasoning in that regard. The question then is whether there was any evidence for the five convictions in that sense.

22    The primary judge identified three sources of evidence which tended to show that the appellant had committed the five speeding offences. These were:

(a)    the observation of the District Court that the appellant ‘was convicted of exceeding the speed limit five times previously’;

(b)    the appellant’s evidence in the Tribunal that he agreed with that statement; and

(c)    evidence from the appellant in the Tribunal that he had failed to pay certain speeding fines and other evidence from him that he did not recall going to court in relation to the speeding offences.

23    In his written submissions, the appellant did not explain why the statement made by the District Court was not some evidence of his having committed the five speeding offences. The appellant did submit that the primary judge’s reasoning about this was unsupported by any evidence or justified by any adequate reasons.

24    The no evidence limb of the submission is untenable in light of the remarks of the District Court. The inadequate reasons limb of the submission invites attention to the primary judge’s statement that ‘It was open to the Tribunal to infer that the sentencing judge had, on the material before her Honour, found that the applicant had been determined by a court to have exceeded the speed limit on five occasions’. Those reasons sufficiently explain why the primary judge thought that the inference was open. It was because the sentencing remarks of the District Court supported the drawing of that inference.

25    The conclusion that the evidence in [22(a)] above was evidence that the appellant had committed the five speeding offences is sufficient to dispose of grounds 1(b) and (c), for it does not matter if the evidence in [22(b)] and [22(c)] above was not evidence to that effect in light of that conclusion.

26    However, if it were necessary to decide, we would also accept that the material in [22(b)] and [22(c)] above was evidence that the appellant had committed the five speeding offences.

27    As to [22(b)] above, the appellant submitted that there was no evidence of the appellant’s understanding of the word ‘conviction’. That is no doubt true. But it does not undermine the fact that he agreed that he had been convicted of speeding offences on five occasions. The proposition that this was not evidence that he had committed the five speeding offences is impossible to maintain.

28    [22(c)] above is more involved. The Tribunal had concluded that the District Court’s remarks about the speeding offences probably meant that the appellant had been convicted in absentia. The primary judge noted provisions in Queensland law which allow a person to be prosecuted for an offence if they did not pay a fine and other provisions which allow a criminal court to proceed in the absence of the accused if the matter was called on and the accused did not appear. The primary judge reasoned that the evidence of the appellant that he failed to pay certain speeding fines, combined with the fact that he could not recall attending court in relation to the speeding offences, made open the Tribunal’s inference that the appellant had been convicted in absentia.

29    In this Court the appellant attacked that reasoning in three ways. First, the Tribunal found that he failed to pay ‘certain speeding fines’. This was not a finding that he failed to pay five speeding fines (or all of the speeding fines – although it is unclear what was intended by this statement). Thus, it could not be inferred that the speeding fines were linked to the convictions.

30    There is no substance to this submission. The question is simply whether there was material from which an inference could be drawn that the appellant had been convicted in absentia. The material included the fact that the appellant had failed to pay certain fines and could not recall going to court in relation to the speeding offences. Given the state of Queensland traffic and summary offence law, the primary judge was correct to reason that it was open to the Tribunal to infer that the appellant had been convicted in absentia. This was especially so where it is clear that the District Court, which had the appellant’s traffic record before it, said that he had been convicted and where the appellant had agreed with that proposition when asked about it before the Tribunal. Once the appellant’s evidence that he could not recall attending court about the speeding offences is introduced into the picture, the inference that he was convicted in absentia was plainly available.

31    Secondly, the appellant submitted that there was no evidence which supported the primary judge’s legal analysis of how a conviction in absentia for a speeding matter could be recorded. But the primary judge’s analysis was purely a survey of the relevant Queensland traffic legislation. Evidence was not necessary for that exercise.

32    Thirdly, the appellant submitted that the primary judge had substituted his own reasoning for that of the Tribunal. We do not accept that submission either. The primary judge was dealing with a submission that it was not open to the Tribunal to conclude that the appellant had been convicted of the speeding offences in absentia. In assessing that submission, it was appropriate for the primary judge to consider the evidence which was before the Tribunal and to ask whether, as a matter of law, those facts could give rise to an inference that the appellant had been convicted in absentia. This is what the primary judge did. His Honour was correct to conclude that the inference was open.

33    Grounds 1(b) and 1(c) should be rejected.

Materiality: Ground 1(d)

34    Since we think the primary judge was correct to reject the appellant’s case that the Tribunal had erred in reasoning that he had been convicted of five speeding offences, the question of the materiality of that error does not arise. However, if it had, we would have rejected the appellant’s challenge to the primary judge’s conclusion that any error was immaterial.

35    The primary judge reasoned that any error about the word ‘conviction’ was immaterial for two reasons. First, what was material to the Tribunal’s consideration of whether the appellant was a risk to the community was not the formal legal nature of a conviction. It was, rather, whether the appellant had in fact driven in excess of the speed limit.

36    Secondly, the primary judge noted remarks by the Tribunal to the effect that it did not have any information about the speeding offences which would permit it ‘to make an informed judgment about their seriousness’ (at [28]) and later (at [35]) that it did not attach much weight to the appellant’s speeding. In those circumstances, the primary judge did not accept that the question of the appellant’s convictions for the five speeding offences had any material impact on the outcome of the Tribunal’s deliberations.

37    Because this part of our reasoning proceeds on an assumption that the primary judge’s approach to the word ‘conviction’ was erroneous, the first path of materiality reasoning is not available. In relation to the second challenge the appellant submits that, read as a whole, the Tribunal’s reasons show that its conclusion that the appellant had been convicted of five speeding offences was material to its deliberations.

38    The appellant’s submission turns on [19] of the Tribunal’s reasons. That paragraph is the last paragraph in a section headed ‘Background Facts in General’ which, it should be noted, precedes any discussion by the Tribunal of the Direction. Paragraph [19] is in these terms:

For the sake of completeness, I mention a minor matter. While on bail awaiting the determination of his criminal proceedings, Mr Brar committed a criminal assault. This also amounted to a breach of his bail conditions. On 30 November 2021, he was found guilty and fined $700, but no conviction was recorded. The offending was clearly minor as no conviction was recorded, and I am clear that this incident cannot represent a ‘tipping point’ in my deliberations. I need not deal with it further.

39    It may be accepted that the Tribunal did say in this paragraph that the offending was clearly minor because no conviction had been recorded. The appellant submits that from this it may be inferred that the Tribunal regarded any matter in which a conviction was recorded as a serious one. The final step in the argument involved reintroducing that conclusion back into [28] of the Tribunal’s reasoning. It is now useful to set [28] out in full:

I must have regard to the frequency of the non-citizen’s offending. This is the first and only instance of dangerous driving that appears in Mr Brar’s record. Although Mr Brar has convictions for speeding according to the sentencing Court, I do not equate these with dangerous driving. I know nothing about the circumstances of the speeding offences: this was not canvassed in evidence before me. Some speeding is dangerous but other speeding, whilst potentially elevating risk, may not pose any serious risk to other road users. It all depends on the precise facts. I do not have any information about Mr Brar’s five speeding convictions referred to by the District Court to make any informed judgment about their seriousness.

(footnotes omitted)

40    The appellant submitted that once [19] was brought to account within [28] it followed that the convictions referred to in [28] (which, for the sake of argument, may be assumed had been ‘recorded’) must have been material to the Tribunal’s deliberations. We would reject this submission for two reasons. First, the appellant’s proposed parsing of [28] is outlandish. In our view, the appellant’s interpretation of [28] is the polar opposite of what the Tribunal was endeavouring to say.

41    Secondly, the reason the appellant’s submission leads to this counterintuitive outcome is because the submission about [19] is illogical. It does not follow from the fact that the Tribunal regarded the criminal assault conviction as not serious because the conviction had not been recorded that the Tribunal therefore regarded any matter in which a conviction was recorded as being serious. This is a non sequitur.

42    The appellant’s complaint on appeal is that the primary judge had failed to deal with this argument. Making the assumption that this is correct, any such error is immaterial since the argument must be rejected.

43    Ground 1(d) should be rejected.

Ground Two

The view of the appellant’s older son that he loved his father

44    In the evidence before the Tribunal was a document which had been produced by the appellant’s son which said ‘DADDY I LOVE YOU’. Ground 2 is related to the fact that the Tribunal did not refer to this document. The issue arises from the obligation of the Tribunal to consider the effect upon the appellant’s two children if his visa was not reinstated. That obligation arises from various paragraphs of the Direction. Of immediate relevance is the fact that the effect of the cancellation of the appellant’s visa will be to sever his relationship with his two children. The Direction touches on this grim situation in at least two paragraphs: paragraphs 8.3 and 8.4. Paragraph 8.3 requires the strength, nature and duration of the appellant’s ties to Australia to be assessed. Paragraph 8.4 requires the best interests of any minor children involved to be taken into account. Paragraph 8.4(4) also sets out a number of sub-issues which must be considered. One of these, in paragraph 8.4(4)(f), is ‘any known views of the child (with those views being given due weight in accordance with the age and maturity of the child)’.

45    It is not in dispute that the document was evidence that the appellant’s son held the view that he loved his father. At the heart of ground 2 is the proposition that the Tribunal had failed to comply with paragraph 8.4(4)(f) because it had not mentioned the document.

46    The primary judge considered this issue at [51]-[58]. His Honour accepted that the document showed that the appellant’s son had expressed his own view which was that he loved his father. His Honour then accepted that paragraph 8.4(4)(f) of the Direction required the Tribunal to take into account the fact that the appellant’s son loved him. Citing Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; 275 CLR 582 (‘Plaintiff M1/2021’) at [24], the primary judge reasoned that the Tribunal was required to bring its mind to bear on the fact that the appellant’s son loved him.

47    The Tribunal dealt with the position of the appellant’s children at [50]-[51], [54], [55] and [67]-[68]. The primary judge reasoned that it was necessary to examine these paragraphs to determine whether it was possible to draw an inference that the Tribunal had failed to consider the child’s expressed view that he loved his father. His Honour identified the relevant portions of these paragraphs at [56]:

I am unable to draw such an inference. The Tribunal conducted a thorough analysis of the best interests of the applicant’s children. The Tribunal indicated at [50]–[51] of its reasons that the applicant’s children had “built a connection with him”; that they would “lose their father”; that “the older child may feel the loss more intensely”; and that, “both children individually will be heavily affected by the loss of their father”. The Tribunal found at [54] that, “both have a relationship with Mr Brar” and at [55] that, “it is very substantially in the children’s interests to have one-on-one contact with their father”. The Tribunal accepted at [67] that the effect of the decision, “will be to destroy this family unit”.

48    The primary judge then concluded that these passages made it improbable that the Tribunal had not addressed its mind to the appellant’s son’s view that he loved his father.

49    Turning then to the errors alleged, the appellant submits that the primary judge’s reasons are inadequate because his Honour did not deal with all of the appellant’s submissions (ground‍ 2(a)). He also submits that the primary judge misapplied the law in two ways (ground 2(b)). First, the primary judge erred in concluding that the Tribunal was required to have regard to the views of the son and to bring its mind to bear on those views. According to the appellant, the correct position was that the Tribunal was obliged by law to read, identify, understand and evaluate the appellant’s son’s statement that he loved his father.

50    Secondly, the appellant submitted that once it was accepted that the Tribunal had not referred to the fact that the child’s view was that he loved his father, the correct approach was that it was to be inferred that the Tribunal had not considered the statement unless its reasons (or the surrounding context) showed otherwise. On this view of affairs, once a matter was not referred to by a decision-maker it was to be presumed that the matter had not been taken into account unless the contrary was demonstrated. Although the appellant stopped short of identifying who bore this onus, it is an inevitable feature of the submission that the party bearing this onus would be (in this case) the Minister. If this submission is correct, it means that the primary judge erred by impermissibly asking whether it was to be inferred from the reasons of the Tribunal that the appellant’s son’s view that he loved his father had not been taken into account.

51    It is convenient to deal with these separately.

Adequacy of reasons: Ground 2(a)

52    The appellant’s submission is that the primary judge did not refer to a number of cases which the appellant says he relied on at the hearing. There were five such decisions: Seau v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 176 (‘Seau’), Minister for Immigration, Citizenship and Multicultural Affairs v McQueen [2022] FCAFC 199; 292 FCR 595 (‘McQueen’), Telstra Corporation Ltd v Australian Competition and Consumer Commission [2008] FCA 1758; 176 FCR 153, Cowgill v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1337; 181 ALD 295 and QHRY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 827 (‘QHRY’). The appellant submitted that these decisions contained ‘the correct principles to use to analyse the Tribunal’s decision’. But in his written submissions, with the exception of brief reference to QHRY and Seau, he neither identified what those correct principles were nor specified in what ways the primary judge’s reasoning had departed from them.

53    At the hearing, the appellant submitted that McQueen held that there was a difference between reading the actual representations made by a person and reading a summary of those representations made by another. We take the point to be that there was a material difference between the Tribunal knowing in some general sense that the appellant’s older son loved his father and reading the son’s document, written as it was in different colours, and saying ‘DADDY I LOVE YOU’.

54    We would reject this submission for two reasons. First, the Full Court’s decision in McQueen was reversed on appeal to the High Court: Minister for Immigration, Citizenship and Multicultural Affairs v McQueen [2024] HCA 11; 98 ALJR 594 at [37]-[38]. The Court reasoned that a summary of the representations was sufficient unless there were some suggestion that the summary was inaccurate. The Full Court’s reasoning in McQueen is therefore not available to the appellant.

55    Secondly, as we explain below, we do not think that there is an analogy between representations under s 501CA(4) and the document in this case which contained the statement ‘DADDY I LOVE YOU’. In short, for present purposes, the mandatory relevant consideration in this case was the known view of the son that he loved his father – it was not the document which contained that statement.

56    For those two reasons, we do not accept the submission that McQueen provided support for the proposition that the Tribunal had to read and specifically engage with the document itself. What it had to do was take into account the fact that the son loved his father.

57    Once the role of McQueen is dismissed, the appellant’s submission about the decisions which the primary judge did not refer to reduces to the proposition that his Honour’s reasons were inadequate because he had not referred to those authorities. We do not accept that a judge is required to refer to every authority to which a party takes the judge. In some cases, it may be possible to say that a failure to deal with a clearly articulated submission can constitute a denial of procedural fairness and in such a context it may be possible to make something of a failure by a judge to deal with an authority. But away from those kinds of circumstances, we do not accept that the mere failure of a judge to refer to an authority cited to the court can mean that the judge’s reasons were legally inadequate. Consequently, in the form articulated and with the level of detail provided, we do not accept the appellant’s submission.

58    The reasons of the primary judge will only have been inadequate in the legal sense if they fail to disclose sufficiently the path of reasoning his Honour took in arriving at his decision. In our view, his Honour’s reasons are adequate in this sense. In a nutshell, the primary judge was not satisfied that he should draw an inference that the Tribunal had not taken the child’s love of his father into account. The reader of the primary judge’s reasons is therefore left in no doubt as to why his Honour reached the conclusion that he did.

59    Ground 2(a) should be rejected.

Wrong application of Plaintiff M1/2021: Ground 2(b) first aspect

60    The primary judge referred to the High Court’s decision in Plaintiff M1/2021 at [24] as authority for this proposition: ‘The requirement to consider the known views of the child required the Tribunal member to have regard to those views and to bring their mind to bear upon those views’. The appellant submits that this set the standard too low when regard was had to what Kiefel CJ, Keane, Gordon and Steward JJ actually said 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)

61    The appellant submitted that this required the Tribunal to read, identify, understand and evaluate the document containing the child’s known view. By contrast, what the primary judge had required of the Tribunal was that it should have had regard to the child’s views and should have brought its mind to bear on those views. Because the mandatory relevant consideration under paragraph 8.4(4)(f) of the Direction is any ‘known views’ of the child rather than any ‘document’ in which such views are recorded, we do not accept that the High Court’s statement in Plaintiff M1/2021 that the delegate in that case was obliged to read, identify, understand and evaluate the representation can be applied. The document in this case was not a mandatory relevant consideration and the Tribunal was not bound to take the document into account. What it was required to take into account were the views of the child recorded in the document. Imposing an obligation on the Tribunal to read the document when it had an obligation to take the document’s contents into account serves no purpose.

62    Although the primary judge referred to Plaintiff M1/2021 at [24], in truth his Honour was just applying the general standard for what a decision-maker must do when required to take a matter into account. In Plaintiff M1/2021, Kiefel CJ, Keane, Gordon and Steward JJ discussed this at [25]-[26]:

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

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)

63    We do not think that his Honour’s formulation of the approach to be adopted materially differs from this approach. The first aspect of ground 2(b) should be rejected.

Whether onus of proof correctly identified: Ground 2(b) second aspect

64    The Tribunal was obliged in its reasons to set out its findings on material questions of fact and to refer to the evidence or other material on which its findings were based. At the time of the Tribunal’s decision this was required by s 43(2B) of the Administrative Appeals Tribunal Act 1975 (Cth). Since the commencement of the Administrative Review Act 2024 (Cth) the same result comes about through the operation of s 111 of that Act (which requires the Tribunal to give a statement of reasons) and the definition of a ‘statement of reasons’ in s 4 of that Act which imposes the substantive obligations formerly in s 43(2B) of the Administrative Appeals Tribunal Act 1975 (Cth). Those provisions allow an inference to be drawn that if a finding is not made about a matter then the Tribunal did not regard that matter as material.

65    That such an inference may be drawn was established in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 (‘Yusuf”) at [69] per McHugh, Gummow and Hayne JJ. The Court, however, does not have to draw the inference and whether it does so will depend on the facts: KXXH v Minister for Immigration [2022] FCAFC 111; 292 FCR 15 at [54] per Bromberg, Jackson and Feutrill JJ.

66    In this case, there is no debate that the Tribunal did not expressly advert to the child’s known view that he loved his father. Thus, it is possible that the Yusuf inference could be drawn that the Tribunal did not regard the child’s known views as material. It may also be assumed that if the Tribunal did not regard the child’s known views as material, then it may be further inferred that it did not take those views into account (although this may be a contestable proposition).

67    On that understanding, the appellant submits that, once it was established that the Tribunal did not refer to the known views of the child, the question then became whether the inference that it had not taken those views into account should not be drawn.

68    This submission erroneously inverts the onus of proof. The appellant was the applicant before the primary judge. As the moving party, the onus lay on the appellant to prove that the Tribunal had failed to take into account the known views of the child: MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; 273 CLR 506 at [39]-[40] per Kiefel CJ, Gageler, Keane and Gleeson JJ. The appellant succeeded in proving that the Tribunal had not referred to the fact that the child loved his father. However, proof of that fact merely made available the drawing of the inferences we have described above; it did not require those inferences to be drawn. It was the appellant who desired that the next step should be taken and that the inferences should in fact be drawn. It was thus the appellant who bore the onus of proving the facts necessary to permit that to occur.

69    We have set out above the primary judge’s analysis of the factual question of whether the Yusuf inference should be drawn, although his Honour did not refer to Yusuf directly. We detect no error in his Honour’s unwillingness to draw the inference that the fact that the child loved his father had not been taken into account. For completeness, even if we had accepted that the respondent bore the onus of proving that the Yusuf inference should not be drawn, we would have concluded that the same passages relied upon by the primary judge were sufficient to discharge that onus.

70    The second aspect of ground 2(b) should be rejected.

Result

71    The following orders should be made:

(1)    The appeal be dismissed.

(2)    The appellant pay the first respondent’s costs as taxed, assessed or otherwise agreed.

.

Associate:

Dated:    8 October 2025