FEDERAL COURT OF AUSTRALIA

Kaur v Minister for Immigration and Border Protection [2014] FCA 1046

THE COURT ORDERS THAT:

1.    The appeal is allowed.

2.    The orders of the Federal Circuit Court made on 15 May 2014 are set aside.

3.    The decision of the Migration Review Tribunal made on 4 November 2013 is set aside.

4.    The application of the appellants to the Migration Review Tribunal made on 7 August 2013 to review a decision of a delegate of the first respondent made on 2 August 2013 is remitted to that Tribunal for reconsideration according to law.

5.    There be no order for the costs of the appeal or of the application before the Federal Circuit Court save that the first respondent should pay to the appellants any disbursements paid to the Federal Circuit Court on that application or to the Court on the appeal.

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

REASONS FOR JUDGMENT

1    The first appellant was granted a Student (Temporary) Class TU (Subclass 572) visa (the visa) on 20 November 2012 pursuant to the Migration Act 1958 (Cth) (the Act) and the Migration Regulations 1994 (Cth) (the Regulations). The second appellant held a consequential visa, as her husband. It is accepted that the outcome of the appeal on behalf of the first appellant will be reflected in the status of the second appellant. It is convenient therefore, from this point, to call the first appellant the appellant.

2    One of the conditions applicable to the visa was that the appellant complied with the requirements of Condition 8105, relevantly that she not engage in work in Australia for more than 40 hours a fortnight during any fortnight when her course of study or training is in session. There is no dispute that she did engage in a course of study to which that condition applied, and therefore was in breach of that condition.

3    On 2 August 2013, a delegate of the first respondent (the Minister) decided to cancel the appellant’s visa pursuant to s 116(1)(d) of the Act. That decision was made on the basis that the first appellant had breached Condition 8105 of her visa. The delegate found that she had been working more than 40 hours per fortnight while her then course was in session. The delegate did not exercise the discretion available under s 116(1)(c), in effect, to excuse the breach and not to cancel the visa. It followed that the visa of the second appellant was also cancelled pursuant to s 140(1) of the Act.

4    The appellant had provided to the delegate a letter acknowledging that she had been employed for periods in excess of that permitted by Condition 8105, and promising not to do that again. The letter also suggested that she had been doing so at least in part because the support which she had previously been getting from her mother in India had not been available because of the illness of her mother, and was not otherwise available.

5    The appellant then sought review of that decision by the Migration Review Tribunal (the Tribunal). It was told that she had been working almost every weekday at the Good Start Early Learning Centre for an average of 60 hours per fortnight, or perhaps a little under, and also worked at McDonald’s between and two and four nights per week on shifts of between two and five hours. In addition, the Tribunal had before it a letter from Good Start Early Learning Centre dated 30 October 2013 which stated that the appellant had been working there as a casual educator between 29 January 2013 and 12 July 2013, working between 30 and 38 hours per week. To that must be added some time for her work with McDonald’s. The delegate had regard to what he had been told orally by the appellant, and some documentary information.

6    The available information before the Tribunal was a little different from that before the delegate, relating to the periods of the course of courses. On the basis of it, the Tribunal noted that the appellant had been studying at Salford College on a six month course for a Certificate III in Business ending in May 2013. She had successfully completed that course. The material also indicated that she had commenced a Diploma of Business Course at Salford College on 1 July 2013 to run until 14 July 2014. The documents clearly support that.

7    It is desirable to set out fully the way the Tribunal proceeded from that point.

8    Its reasoning on the basis of that information, and the provision of some additional information made available to the Tribunal. The Tribunal referred to the material and continued at [19]-[21] of its reasons:

At the hearing of this matter, the first named applicant told the Tribunal that she was working “almost every weekday” at Good Start Early Learning Centre for an average of 60 hours per fortnight, but that this work had ceased on 12 July 2013. She also told the Tribunal that she was working at McDonald’s restaurant in Collinswood, South Australia (McDonalds) between 2 and 4 nights per week of between 2 and 5 hours each shift. She said that she started working at McDonalds three years ago and that she continued working there until her visa was cancelled on 2 August 2013. The Tribunal put to the first named applicant that according to her own evidence, this meant that from her work at McDonalds she was working between 8 and 40 hours per fortnight. Added to this is her work at Good Start Early Learning Centre to 12 July 2013 which she said averaged 60 hours per fortnight.

The Tribunal asked the first named applicant whether, to substantiate this she could provide documentary evidence of her hours of work and shifts from all work undertaken for the period, mid June 2013 to 2 August 2013. The Tribunal informed the first named applicant that it was prepared to allow additional time for this to occur. In response, she said she could provide such documents, then proceeded to admit to the Tribunal that she had, in fact, worked more than 40 hours per fortnight when her course of study was in session, just before her visa was cancelled on 2 August 2013. The Tribunal checked with the first named applicant whether she meant or understood that she was in breach of a condition of her visa not to engage in work in Australia for more than 40 hours a fortnight during any fortnight when her course of study or training is in session. She responded that she understood that to be the case but submitted that she should be afforded “one chance because I think that I deserve one.”

The Tribunal has since the hearing, received (inter alia) a Period Wage Payment summary from McDonalds of the first named applicant’s pay for the period from 9 June 2013 to 28 July 2013. The weekly periods commencing 30 June 2013 and 7 July 2013 show work undertaken during a fortnight of (23.02 + 24.37) 47.39 hours for a fortnight that covers a period when her course of study was in session. The Tribunal however, does not rely on that information and has given it no weight, as it has not substantiated this directly with the employer involved. The Tribunal instead, prefers the evidence of the first named applicant given in her oral admission at hearing, and finds that she engaged in work of more than 40 hours in the fortnight (from Monday 1 July 2013) when her course of study was in session. This is more than the permissible number of 40 hours per fortnight specified in condition 8105, during a period her course was in session.

9    The Tribunal then concluded at [24] of its reasons that the appellant had not complied with Condition 8105 because it was satisfied that she had engaged in work in Australia for more than 40 hours per fortnight during a fortnight when the appellant’s course of study or training was in session. The expression reflects precisely the terms of Condition 8105(1). In my view, as discussed below, that manner of reflecting its findings does not focus on the particular fortnight of 30 June 2013, but simply uses the terms of the condition itself. That is important to note, because it might otherwise have erred in fact if its findings were confined to that two week period. It is consequently unnecessary to explore whether any such putative factual error in the circumstances may have amounted to jurisdictional error.

10    The Tribunal then considered whether it should exercise its discretion to not cancel the visa.

11    It noted that there are no particular matters specified in the Act or Regulations requiring to be considered. It said that it should have regard to the matters raised by the appellant and by the Government policy guidelines contained in the Department’s Procedures Advice Manual (PAM3). It noted the appellant’s comments. They were recorded as being that she should be afforded one more chance, that her father was in the military in India and had died in army battle, and that her mother was in hospital. There was documentary evidence to support that. The Tribunal then said at [27]-[30] of its reasons:

27.    There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of this discretion. However, the Tribunal has regard to matters raised by the visa holder as to why the visa should not be cancelled, and government policy guidelines contained in the Department’s Procedures Advice Manual (PAM3).

28.    When asked about this at the hearing, the applicant said that should be afforded one more chance. She submits that her father was in the military in India and had died in army battle, and that her mother was in hospital. She provided documentary evidence to the Tribunal (photographs, and medical and other records) to substantiate this.

29.    Having considered the factors raised by the applicant and the departmental guidelines contained in the Department’s Procedures Advice Manual (PAM3), the Tribunal finds no matters raised as to why the visa should not be cancelled.

30.    Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

12    The material available to it in favour of the exercise of the discretion not to cancel the visa would have included, to the extent that it was relevant and given weight, the fact that the appellant had passed her previous courses despite apparently working longer hours than permitted, her personal circumstances (namely that her only parental support could come from her mother, and that her mother’s illness prevented it from being provided to her and, she said, she had to support her husband who was also unable to work) and her clear contrition so that it was unlikely that she would repeat the sort of conduct in breach of Condition 8105 again.

13    In the light of those matters, it is difficult to understand why the Tribunal did not exercise its discretion, in the light of the contravention of the condition, not to cancel the visa. The expression “considering the circumstances as a whole” is unhelpful. If it were the case (as mentioned above) that the Tribunal had found only a two week contravention of the condition between 30 June 2013 and 12 July 2013, one would add to the balance that the period of the contravention itself was quite short. There would appear to be no reason, and there is certainly no reason expressed, why in “the circumstances as a whole” the discretion should not have been exercised in her favour. That matter is referred to further in these reasons.

14    The appellant then applied to the Federal Circuit Court (FCC) for an order quashing the decision of the Tribunal on the ground of jurisdictional error. She had by then produced additional material, including some payslips, and a letter from Salford College indicating that her holidays had been extended until 12 July 2013. It is dated 28 June 2013. That letter was not made available to the Tribunal. On the basis of it, the Federal Circuit Court recorded its acceptance of the fact that she had not commenced the second course until 12 July 2013. As a fact, therefore, the period 30 June 2013 to 12 July 2013 was not a period when the appellant worked hours in excess of the permitted hours whilst her course of study was in session.

15    After reviewing the material, the FCC at [12]-[14] made the following observations:

However, the more important issue is this; (sic) the Tribunal’s duty was to affirm or reject a decision made by a delegate. The decision that was made by the delegate was not made upon the basis of what Ms Kaur did or did not do in the month of July 2013. It was made on the basis of what Ms Kaur did in the previous six months while she had been enrolled in the certificate course. The evidence in relation to that period is clear. Ms Kaur did work, on her own admission, for more than 40 hours per week for a consistent period of time, both for McDonald’s and for the Goodstart Early Learning Centre.

Insofar as the Tribunal may have been led into error in regard to the period between 1 and 12 July 2013, it was an error that was available to it on the evidence. The Certificate of Enrolment document indicated that the course started on 1 July and Ms Kaur did not tell the Tribunal that she had holidays until 12 July, and therefore the earlier period was not within the time that she was studying. In those circumstances, any error of the Tribunal was an error within jurisdiction and not a jurisdictional error.

The Tribunal had a discretion to determine whether or not to cancel the visa. It describes the manner in which it exercises that discretion between [26] and [30] [of its reasons]. There is nothing in that description that would indicate that the discretion miscarried.

16    It is apparent from that the FCC identified what may have been an ambiguity in the Tribunal’s reasons, namely whether the Tribunal found only that the appellant had contravened Condition 8105 during the period 30 June 2013 to 12 July 2013, and addressed that issue.

17    In my view, the Tribunal’s findings are clear, and have the effect identified by the FCC. The Tribunal did focus on that shorter period, at least in part, because there was on the material before it a gap between May 2013 and 1 July 2013 when the appellant was not undertaking a course of study or training which was then in session. She had completed one course in May 2013 and was to commence the next course on or about 1 July 2013. The documentary material it requested, and received, only related to that period after the first course came to an end. But the Tribunal clearly had a much longer period in mind.

18    I infer that from the fact that that paragraph refers to the delegate’s decision and the reasons for the delegate’s decision, rather than to the evidence itself. It does not refer to the Tribunal’s findings in respect of a period between (say) February and May 2013 otherwise covered by the letter from the Good Learning Centre referred to at [5] above. Of course, to the extent that the Tribunal took that view, in my view, it was erroneous. Its task was to review the decision of the Tribunal for error. The starting point for that task is to determine what it was that the Tribunal found and then to discern whether its findings and its conclusions demonstrated jurisdictional error on its part.

19    Having considered the whole of the material, I have come to the view that the Tribunal did not limit its consideration to the period 30 June 2013 to 12 July 2013. It is plain that the appellant had been working at the Good Start Early Learning Centre for some months (from early February 2013 to 12 July 2013), and that there was no time restriction on the period she had been working at McDonalds when she spoke of that to the Tribunal. She said she had been working at McDonalds for three years until her visa was cancelled on 3 August 2013. That material is referred to in the Tribunal’s reasons at [19]. The Tribunal limited its consideration to the two week period from 1 July 2013 only in relation to her current course, as it sought documentary evidence in relation to that period to 2 August 2013. It is in that context that the further admission was made as recorded in [20] of its reasons. It is in that context also that [21] refers to the documentary evidence which the appellant then provided. The Tribunal gave no weight to the documentary material and made the specific finding that she had engaged in work of more than 40 hours in a fortnight from 1 July 2013 when her course of study was in session working more than the prescribed period. That finding again relates to the period of her current course.

20    However, ultimately, the Tribunal’s reasons reflect firstly a finding more generally, on the material which was also available to the delegate and accepted by the appellant, that she had been working more than 40 hours per fortnight during the currency of the previous course which was in session from February to May 2013, then in respect of the period after her current course had commenced. It is not at all likely that the Tribunal simply ignored the delegate’s findings, or the material they were based on. The Tribunal specifically referred to that material and where it pointed in terms of facts at [19] of its reasons.

21    On that basis, in my view, the Tribunal did not commit jurisdictional error in concluding that the appellant had breached Condition 8105 by significantly exceeding the hours permitted to be worked, at least to May 2013 whilst her first course was in session. The finding at [24] to which I have referred above is therefore in my view a generic finding not confined to the two week period between 30 June 2013 and 12 July 2013. It is about conduct over a significant period of months and then expressed in terms of Condition 8105(2). The appellant has not said anything which might indicate jurisdictional error on the part of the Tribunal in reaching that conclusion. Indeed it is consistent with what she told both the delegate and the Tribunal.

22    It is necessary to comment briefly on the FCC’s reasons.

23    On the material before the Tribunal, there was at least a reasonable basis for the Tribunal concluding that the second or current course covering the period from 1 July 2014 to 14 July 2014 commenced in session from its commencement. That would be a matter of reasonable inference from that material, even allowing that the course would not run continually without holiday breaks and public holiday breaks from time to time. There was no reason to think that the commencement of the course as specified in the document before the Tribunal was not in fact the commencement of the session of that course. The appellant did not suggest otherwise. The fact that the appellant subsequently produced evidence to suggest that she had been permitted to commence her training only from 12 July 2014 was not a matter before the Tribunal. In my view, its conclusion that that course was in session from 1 July 2013 did not involve jurisdictional error. Again, the fact that the appellant worked more than the permitted hours in that two week period was accepted by the appellant.

24    The appellant appears to have been permitted to prove before the FCC that the actual commencement of that course in her case was deferred to 12 July 2013. It is not clear why the FCC permitted that material to be received, as its role was limited to determining if the Tribunal’s decision was to be impugned for jurisdictional error. The fact that other evidence was apparently available to the appellant to show her course commenced at the later date, but was not provided to the Tribunal, could not itself demonstrate jurisdictional error on the part of the Tribunal. There is no suggestion that the Tribunal conducted its review in any way which might have prevented the appellant from adducing that material or might have failed to accord her procedural fairness.

25    There remains the issue of the exercise of the discretion provided by s 116 of the Act. The Tribunal’s reasoning on this matter is at [26]-[30] of its reasons, and is referred to above.

26    The FCC’s consideration of this aspect is very brief: see at [14] of its reasons. After referring to the discretion, the FCC at [14] of its reasons said:

[The Tribunal] describes the manner in which it exercises that discretion between [26] and [30] [of its reasons]. There is nothing in that description that would indicate that the discretion miscarried. The Court is therefore unable to review the matter as the applicant asks.

27    I was sufficiently concerned with both the quality of the Tribunal’s reasons, and those of the FCC, on that aspect to invite further written submissions. In the case of the Tribunal, it noted the matters raised by the appellant and the Minister, but it did not explain why it found there were “no matters raised as to why the visa should not be cancelled” at [29]. That is not correct. There were matters raised relevant to that issue. It probably meant that the matters raised did not, on the whole of the material, persuade it to exercise the discretion in favour of the appellant. That is consistent with [30] of its reasons, set out above.

28    However, it does not in my view explain adequately why it reached that view. Were there any particular features identified by PAM3 which influenced? If so, what were they? Did the Tribunal adequately understand and consider the appellant’s family circumstances. In her response to the notification of intention to consider cancellation of the visa of 2 August 2013, the appellant said:

(1)    she had done the extra work because her mother was sick, and so could not support her daughter the applicant as her mother had done when she was granted the visa, and her father’s death meant her mother was the supporter of all the family;

(2)    she was unable to get support from her husband because of his health;

(3)    she was trying to help and support her mother, in her mother’s condition, because she had previously supported the appellant;

(4)    she had completed all her assessments and projects regularly and satisfactorily;

(5)    she was penitent and would not breach the work limitation rules again, so she asked for a further chance.

Documentary material supported the claims about her father’s death, her mother’s illness from about January 2013 (the earliest medical evidence on the material about her mother), and her satisfactory and regular course progress.

29    In a letter to the Tribunal of 21 October 2013, and a separate undated letter but receipt stamped 16 October 2013, she also raised for consideration that:

(1)    she was herself very stressed by the prospect of the visa being cancelled;

(2)    she would have applied for a different visa if her intention was simply to work in Australia;

(3)    she now has a new source of funding for her support whilst doing the course, through her father-in-law (supported by some fixed deposit receipts).

(4)    she has an upbringing of strict behaviour, and her mother would be seriously distressed if she were to know about the cancellation of the visa.

30    The documents available to the Tribunal also included the mother’s “Sponsor Letter” of 15 November 2012 confirming her mother had sufficient financial resources to support the appellant’s fees and living expenses in Australia (with some supporting bank certification), and that the mother had previously sponsored the appellant’s earlier studies in Australia (or prior student visas, at least in 2011-2012).

31    The delegate’s reasons also record, as is clearly the fact, that the appellant was forthcoming with information about her working practices and earnings when the matter was raised with her.

32    The further material submitted by the appellant was an affidavit of 12 September 2014, annexing various documents. I do not propose to receive that material. It is not a submission based on the material that was before the Tribunal, and so based on the material also properly available to the FCC. I have perused it to ensure that there are no submissions which have not otherwise been addressed in a general way, which it is appropriate to consider.

33    I have also had the benefit of further helpful detailed submissions from the Minister. I accept that the Tribunal correctly identified the obligation to consider whether to cancel the visa, in its discretion, once the breach of Condition 8105 was made out. I also accept that neither s 116 nor the Regulations set out any mandatory relevant considerations for the Tribunal in the exercise of its discretion: cf Minister for Aboriginal Affairs v Peko Wallsend (1986) 162 CLR 24 per Mason J at 39-40; Xie v Minister for Immigration and Multicultural Affairs [2000] FCA 230 at [28]-[29]; Soegianto v Minister for Immigration and Multicultural Affairs [2001] FCA 1612 at [15]-[16].

34    The Tribunal at [28] of its reasons said the appellant had said she should be given one more chance, and it noted her submission that “her father was in the military in India and had died in army battle, and that her mother was in hospital”. It noted that documentary evidence substantiated that. As [29] then proceeds: the Tribunal “considered the factors raised by the applicant …” and found no matter raised about why the visa should not be cancelled. I have referred above to how I read that expression.

35    In my view, the Minister’s submission does make more of the Tribunal’s reasons than is warranted. The sequence of its reasons appears in [27]-[30] quoted above. It is submitted that the Tribunal identified at [27] the matters it took into account, relevantly the considerations raised by the appellant, then referred expressly at [28] to two of them. Whilst I have read [29] in the context of [30] as explained above, I do not consider that [27] and [28] mean that the Tribunal, while specifying two (or more accurately three) matters the appellant had raised, took into account all the matters raised by her. The sequence of expression, and the two paragraphs read together, in my view indicate the Tribunal in [27] identifies what it should take into account at a general level, that is without reference to particular matters. Then, at [28] it identifies what it understands are the matters identified by the appellant. Then, at [29] it considers those matters and the PAM3 guidelines. Then at [30] it reports on the result of balancing those matters.

36    The Tribunal is not obliged to recite verbatim the matters in PAM3 or those raised by the appellant. But, in my view, the proper understanding of its reasons is that it did recite the matters it understood had been raised by the appellant. As is clear from the recital above, that was not by any means a comprehensive recital of those matters in fact raised by the appellant.

37    I also reject the contention that, because those additional matters were put to the delegate of the Minister and/or are in the material before the Tribunal, “the decision being reviewed included consideration of the discretionary factors”. As to the first point, the Tribunal must exercise its own discretion: see ss 348 and 349. As to the second, the Tribunal has said what it took into account. There are many illustrations of when the Tribunal has either reached a different view from that of the delegate of the Minister or has reached the same view but for different reasons.

38    In my view, it is apparent that the Tribunal did not understand, or engage with, all the matters which the appellant had put forward as to why the discretion should be exercised in her favour. Its reasons really demonstrate that.

39    It is nevertheless obviously important that I should not, by that conclusion, convert the application to the FCC or the appeal into a review on the merits of the Tribunal’s decision.

40    I consider that there remain two avenues by which, at least in theory, that failure by the Tribunal might demonstrate jurisdictional error on its part.

41    The first is to consider whether the Tribunal ignored relevant material: Craig v South Australia (1995) 184 CLR 163 at 179, or failed to consider the entirety of the appellant’s claim as made: Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114 (MZYTS) at [31]-[36] per Kenny, Griffiths and Mortimer JJ. Their Honours described the error as failing to engage in the statutory task of the Tribunal, by not having regard to the facts and merits of the claim: cf Salahuddin v Minister for Immigration and Border Protection [2013] FCAFC 141 at [22]. The second is to consider whether the Tribunal’s exercise of discretion was unreasonable in the sense explained by the High Court in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (Li), especially per French CJ at [28] where his Honour said:

After all the requirements of administrative justice have been met in the process and reasoning leading to the point of decision in the exercise of a discretion, there is generally an area of decisional freedom. Within that area reasonable minds may reach different conclusions about the correct or preferable decision.

42    As to unreasonableness, as counsel for the Minister pointed out, the focus is on the Tribunal’s conclusion rather than the reasons for that conclusion: see Li at [76] and [85] per Hayne, Kiefel and Bell JJ.

43    Wigney J in Minister v Pandey [2014] FCA 640 recently pointed out the standard of legal reasonableness does not involve substituting a Court’s view as to how a discretion should be exercised for that of the Tribunal, and that the test of legal unreasonableness is a stringent one.

44    One matter raised in contentions is the adequacy of the Tribunal’s reasons. It has explained what it took into account, but has not really explained why those matters led it to exercise its discretion in the way it did. However, one might infer from the bold statement of the matters put by the appellant that they carried very little weight. If one takes that bold statement as indicating the Tribunal’s level of appreciation of the matters the appellant raised, it would not be said that the decision is lacking an evident and intelligible justification.

45    On that basis, this is not a case where the Tribunal may not have complied with s 368. Rather, I think it is a case where it falls within the words of Gleeson CJ in Minister for Immigration and Multicultural Affairs v Yusuf (2000) 206 CLR 323 at [10] where his Honour said:

By settting out its findings, and thereby exposing its views on materiality, the Tribunal may disclose a failure to exercise jurisdiction, or error of a kind falling within a ground in s 476(1) other than s 476(1)(a), or may provide some other ground for judicial review.

46    In my view, that is what the Tribunal’s reasons demonstrate in this matter. There has been a failure to address a substantial part of the matters put forward by the appellant in support of her contention that, despite the breach of Condition 8105, the discretion under s 116 should be exercised in her favour not to cancel the visa. In Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 (Dranichnikov), such a failure was said to amount to a failure to accord procedural fairness (per Gummow and Callinan JJ at [24] with Hayne J agreeing at [95]) and to amount to a failure to exercise jurisdiction (per Kirby J at [86]). I have referred above to the way the Full Court of this Court addressed such a problem in MZYTS.

47    In Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012) 246 CLR 636, the High Court found where the Act conferred on the Minister a non-compellable, non-delegable personal discretion to make decisions in favour of unsuccessful applicants, the Minister was not required to observe procedural fairness when he declined to consider whether to exercise the power: per French CJ and Kiefel J at 652-655; per Gummow, Hayne, Crennan and Bell JJ at 668; and per Heydon J at 673-674. However, that case is different from this matter, as the Tribunal had a statutory obligation under s 116 of the Act to consider whether to cancel the visa. In my view, in that process procedural fairness is preserved and the Tribunal must have considered the totality of the appellant’s submissions: see Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319 (Plaintiff M61) at [76]-[77] per curiam. I need not recite them, and address them, seriatum. But I have concluded on the material that it did not do so in this instance.

48    The High Court made it clear in Plaintiff M61 that the failure to consider a submission, or to deal with a claim, may amount to a breach of procedural fairness: [90]; see also May v Brahmbhatt [2013] NSWCA 309 per Beazley P at [4]-[5], Basten JA and Bergin CJ in Eq agreeing; Dranichnikov at [24] and [95].

49    In the result, in my view the Tribunal did engage in jurisdictional error in the way it addressed the exercise of the discretion. It did not consider the matters put forward by the appellant, but only some of them and it did not recognise and address the way the appellant put those issues. There is some parallels with the circumstances in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, where the summary of the material relating to the mandatory consideration was out of date and so the claim of detriment as expressed had not been considered.

50    It also follows that, in my view, the FCC erred in concluding that it should not go behind the Tribunal’s description of how it exercised its discretion to consider whether the case put by the appellant on the issue was in fact addressed by the Tribunal.

51    In the circumstances, I do not have to consider whether the Tribunal, had it addressed the case put by the appellant on the issue, could have reached the conclusion it did within the range of rational or reasonable decisional freedom.

52    I should mention the assistance received by the Minister’s submissions in this matter. The appellant appeared in person. She obviously did not appreciate the subtleties of the applicable law. Her grounds of appeal was broadly expressed as “where main facts had been overlooked”. I therefore perused the reasons for decision of the Tribunal to consider whether, in that context, there were matters which might fairly be encompassed in the notice of appeal. They were raised with the Minister through counsel, and the detailed supplementary submissions made in response. They resolved in the Minister’s favour one issue. In adopting that process, including ensuring the Minister had the opportunity of addressing the matters raised, I followed the course discussed in SZRUR v Minister for Immigration and Border Protection (2013) 216 FCR 445 at [20]-[21] and [39]-[40] per Robertson J with whom Allsop CJ and Mortimer J agreed, and Hamod v New South Wales [2011] NSWCA 375 at [309]-[316] per Beazley P, Giles and Whealy JJ.

53    In the end, the outcome follows from my reading of the Tribunal’s reasons.

54    For the reasons given, the appeal is allowed and the orders of the FCC are set aside. In addition, the decision of the Tribunal is set aside and the application of the appellant to the Tribunal is remitted to the Tribunal for reconsideration. I assume that will be by a differently constituted Tribunal. As the appellant appealed in person, there is no order for the costs of the appeal or of the application before the FCC save that the Minister should pay to the appellant any filing fees paid to the FCC for that application or to the Court on the appeal.

Associate:

Dated:    13 October 2014