FEDERAL COURT OF AUSTRALIA

YNQY v Minister for Immigration and Border Protection [2017] FCA 1466

ORDERS

THE COURT ORDERS THAT:

1.    On or before 4 pm on 14 December 2017, the parties file proposed orders (including as to costs), reflecting the Court’s reasons for judgment, and taking into account the fact that two of the applicant’s grounds of review have not been determined.

2.    In the absence of agreement as to appropriate orders, the parties are to file submissions on appropriate orders, and file copies of proposed orders (including as to costs), on or before 4 pm on 31 January 2018.

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

REASONS FOR JUDGMENT

MORTIMER J:

1    The circumstances and background of the applicant, and the way in which he comes to find himself in the place he does, are testament to the difficulties which may be encountered by people arriving in Australia from war-torn and crisis-laden regions as very young people, then having to adjust to a very different way of life in Australia. I make that observation at the start of these reasons, not because those considerations affect the Court’s resolution of the legal questions before it, but rather because it is important to remember that sitting behind a proceeding such as this are human beings whose lives have become full of tragedy. That applies not only to the applicant and his family, but to those people affected by the applicant’s crimes in Australia.

2    The applicant was born in what is now South Sudan and is presently 25 years of age. He came to Australia at the age of almost 14 with his family on a humanitarian visa. It is the cancellation of this visa which has led to the current proceeding. The full description of the visa is Class XB Subclass 202 (Global Special Humanitarian) visa. The applicant’s family consists of his parents, two older sisters and four brothers, one of whom is older than the applicant and three of whom are younger than him. He has one sister who resides in the United States of America, but otherwise all of his family reside in Victoria. He has no close family remaining in South Sudan or Sudan.

3    The criteria for the grant of a Global Special Humanitarian visa at the time (9 July 2006) the applicant was granted the visa were contained in cll 202.2 and 202.3 of Sch 2 to the Migration Regulations 1994 (Cth). The applicant’s application for the visa was made as a family member on his father’s application, his father being the primary applicant. The key criteria were as follows:

    at the time of the application being made, the primary applicant is subject to substantial discrimination, amounting to gross violation of human rights, in their home country and is living in a country other than their home country;

    at the time of the decision:

    the Minister is satisfied that there are compelling reasons for giving special consideration to granting a permanent visa, having regard to matters including the degree of discrimination, the extent of the applicant’s connection with Australia, whether there are other suitable countries available and the capacity of the Australian community to provide for permanent settlement;

    the permanent settlement of the applicant in Australia would be consistent with the regional and global priorities of the Commonwealth;

    the Minister is satisfied that permanent settlement is the appropriate course, and would not be contrary to the interests of Australia.

4    The applicant’s offending history is set out in the first respondent’s submissions in a form which can be accepted as accurate:

Over a 3 week period from 22 June 2011 to 4 July 2011, the applicant committed a series of criminal offences including armed robbery, robbery causing serious injury, criminal damage and attempted robbery, with a group of other young males. The sentencing judge described the conduct as “dangerous, frightening and extremely violent.” The applicant was 18 years old at the time.

On 27 April 2012, the applicant was convicted of 15 charges and sentenced to 5 years and 10 months’ imprisonment for the mid-2011 offences. He was subsequently convicted of breaching curfew and committing further violent crimes whilst on bail for the mid-2011 offences.

(Footnotes omitted).

5    This offending resulted on 3 July 2015 in the cancellation of the applicant’s Global Special Humanitarian visa pursuant to s 501(3A) of the Migration Act 1958 (Cth). Section 501(3A) remains unchanged from 3 July 2015, and provides:

(3A) The Minister must cancel a visa that has been granted to a person if:

(a)    the Minister is satisfied that the person does not pass the character test because of the operation of:

(i)    paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or

(ii)    paragraph (6)(e) (sexually based offences involving a child); and

(b)    the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.

6    The applicant requested the Minister revoke the mandatory cancellation, as he was entitled to do under s 501CA(4). As he was also entitled to do, he made representations supporting that request for revocation pursuant to s 501CA(3) of the Act. It is appropriate to set out the whole of s 501CA, which has not been amended since it was inserted in 2014:

501CA     Cancellation of visa—revocation of decision under subsection 501(3A) (person serving sentence of imprisonment)

(1)    This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.

(2)    For the purposes of this section, relevant information is information (other than non-disclosable information) that the Minister considers:

(a)    would be the reason, or a part of the reason, for making the original decision; and

(b)    is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.

(3)    As soon as practicable after making the original decision, the Minister must:

(a)    give the person, in the way that the Minister considers appropriate in the circumstances:

(i)    a written notice that sets out the original decision; and

(ii)    particulars of the relevant information; and

(b)    invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.

(4)    The Minister may revoke the original decision if:

(a)    the person makes representations in accordance with the invitation; and

(b)    the Minister is satisfied:

(i)    that the person passes the character test (as defined by section 501); or

(ii)    that there is another reason why the original decision should be revoked.

(5)    If the Minister revokes the original decision, the original decision is taken not to have been made.

(6)    Any detention of the person that occurred during any part of the period:

(a)    beginning when the original decision was made; and

(b)    ending at the time of the revocation of the original decision;

is lawful and the person is not entitled to make any claim against the Commonwealth, an officer or any other person because of the detention.

(7)    A decision not to exercise the power conferred by subsection (4) is not reviewable under Part 5 or 7.

Note:    For notification of decisions under subsection (4) to not revoke, see section 501G.

7    On 16 June 2016, a delegate of the Minister refused to revoke the mandatory cancellation of the applicant’s visa. The applicant applied for review of this decision to the Administrative Appeals Tribunal, but on 15 May 2017, the Tribunal affirmed the delegate’s decision. It is that decision by the Administrative Appeals Tribunal which the applicant seeks to review in this Court.

8    There is no dispute that, at the time of the revocation decision, the applicant did not pass the character test and the delegate (and the Tribunal on review) could not have been satisfied of the matter set out in s 501CA(4)(b)(i). The critical question was whether the Tribunal on review was satisfied there was “another reason” to revoke the cancellation.

9    In conducting its review, the Tribunal was bound by the terms of s 499 of the Migration Act to apply what is called “Direction No. 65 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA”. Like its predecessors, Direction No. 65 is a document promulgated in exercise of the power conferred on the Minister by s 499(1). I set out the relevant parts of the Direction at various points in my reasons below.

10    Section 499 provides:

499 Minister may give directions

(1)    The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:

(a)    the performance of those functions; or

(b)    the exercise of those powers.

(1A)    For example, a direction under subsection (1) could require a person or body to exercise the power under section 501 instead of the power under section 200 (as it applies because of section 201) in circumstances where both powers apply.

(2)    Subsection (1) does not empower the Minister to give directions that would be inconsistent with this Act or the regulations.

(2A)    A person or body must comply with a direction under subsection (1).

(3)    The Minister shall cause a copy of any direction given under subsection (1) to be laid before each House of the Parliament within 15 sitting days of that House after that direction was given.

(4)    Subsection (1) does not limit subsection 496(1A).

The grounds of review

11    By an amended originating application, the applicant relies on five grounds of review. Leave was granted to the applicant at the hearing to rely on this amended originating application. Prior to the hearing, on the proposal of the parties, the Court had ordered that Ground 4 of the amended originating application would be held over and not determined. That ground alleges the Tribunal erred in failing to consider the applicant’s claims to fear harm upon return to Sudan or South Sudan and relied on a decision of the Full Court of this Court in BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96. In that decision, the Full Court identified and upheld an error of the kind alleged by the applicant. At the time of the hearing of this proceeding, there was an application for special leave by the Minister in relation to the Full Court’s decision in BCR16, and it was agreed that ground should await the outcome of the special leave application.

12    At the hearing, it became apparent that Ground 2 of the applicant’s application also involved, if less directly, issues likely to be affected by BCR16. The parties agreed this ground should also be held over, pending the outcome of the Minister’s special leave application, and if that application is successful, pending the determination of the appeal in the High Court.

13    Special leave was refused by the High Court after judgment was reserved in this proceeding: Minister for Immigration and Border Protection v BCR16 [2017] HCATrans 240. That refusal notwithstanding, given that the hearing dealt with only those three remaining grounds of review, these reasons address only those three grounds. The refusal of special leave enables the finalisation of this proceeding.

Resolution

Ground 1

14    This ground is expressed in the amended application in the following terms:

The Tribunal misconstrued its statutory task or constructively failed to exercise jurisdiction in by failing to take the best interests of minor children in Australia into account as a primary consideration.

                Particulars

a.    The review applicant has two younger brothers under eighteen years of age and a niece and two nephews who are under three years of age.

b.    Direction No. 65 requires that the Tribunal give primary consideration to the best interests of children affected by the decision; specifically, clause 13.2(1) of Direction No. 65 required the Tribunal to make a determination as to whether or not revocation was in the best interests of the child.

c.    The Tribunal made no finding as to whether revocation was in the best interests of the children, instead giving ‘minimal’ weight to this consideration and failing to comply with the Direction No. 65.

15    The applicant contends, and the Minister concedes, that there was no determination by the Tribunal in its reasons whether revocation was or was not in the best interests of the applicant’s two younger brothers, who were minors at the time of the decision, nor was there any determination by the Tribunal whether the revocation was or was not in the best interests of the applicant’s niece and two nephews, who were also minors at the time of the decision.

16    It is also common ground that, by the terms of the Direction at para 13.2(1), the Tribunal was required to make a determination “about whether revocation is, or is not, in the best interests of the child”. The remainder of para 13.2 of the Direction sets out a range of factors which must be taken into account in making that determination. As the applicant submits, there is no reference by the Tribunal in its reasons to this paragraph of the Direction.

17    The applicant relies on some propositions from the Full Court in the decision of Wan v Minister for Immigration and Multicultural Affairs [2001] FCA 568; 107 FCR 133 at [32], where the Court stated:

An identification by the Tribunal of what the best interests of Mr Wan’s children required, and a recognition by the Tribunal of the need to treat such interests as a primary consideration, would not have led inexorably to a decision by the Tribunal to adopt a course in conformity with those interests. That is, even had the Tribunal concluded that the best interests of the children indicated that Mr Wan should be granted a visa, it was legally open to it to refuse to grant Mr Wan a visa. Provided that the Tribunal did not treat any other consideration as inherently more significant than the best interests of Mr Wan’s children, it was entitled to conclude, after a proper consideration of the evidence and other material before it, that the strength of other considerations outweighed the best interests of the children. However, it was required to identify what the best interests of Mr Wan’s children required with respect to the exercise of its discretion and then to assess whether the strength of any other consideration, or the cumulative effect of other considerations, outweighed the consideration of the best interests of the children understood as a primary consideration.

18    The applicant relies in particular on the last sentence of the extract. He contends the Tribunal did not seek to identify what was in the best interests of each of the minor children and did not go on to assess whether the weight to be given to those interests was outweighed by any other consideration. He submits the Tribunal simply did not undertake the task required of it at all. He further submits that it is apparent from the Tribunal’s treatment of the best interests of the child factor that it considered this factor “inherently less significant than other considerations”.

19    The Minister contends that the Tribunal did refer, in the introductory part of its reasons under the heading “Primary Considerations”, to para 13.2 of the Direction and submits that in the context of the evidence before it, the way the Tribunal dealt with this consideration does not disclose any jurisdictional error.

20    In summary, the Minister contends that there were scant references in the material before the delegate to the applicant’s two young brothers and his niece and nephews. He submits there were some general statements about the family being close, about how much the children loved the applicant and he loved them, but it was clear from the material that the applicant was not the primary carer of these children in any sense. Before the Tribunal, the Minister contends the evidence rose no higher than some general evidence that the family was close and that the applicant had a close relationship with his younger brothers and his niece and nephews, together with some evidence in particular from the applicant’s sister (the mother of his niece and nephews) that she believed the applicant would help her a lot and that she needed help with her children, one of whom has a medical issue. The Minister points to evidence which might appear to have contradicted the assertion of the family being close, such as that the applicant had not been visited by his brothers while the applicant was in prison. The Minister relies on passages in the Tribunal’s reasons where it found as a matter of fact that the niece and nephews had “minimal contact” with the uncle. The Minister submits that findings of this nature, taken in the context of the evidence before the Tribunal, explain why the Tribunal reached the conclusion it did, that the seriousness of the applicant’s criminal offences, the Australian community’s expectations and the risk of re-offending “greatly outweigh” the positive considerations. The Minister contends that by “positive considerations” the Tribunal was referring to matters such as the best interests of these identified children.

21    Thus, in context, the Minister contends that this finding by the Tribunal, while not (he concedes) in compliance with the requirements of para 13.2(1) of the Direction, is both sufficient and explicable given the material before the Tribunal and any failure by the Tribunal to make an express determination of the kind contemplated by para 13.2(1) could not have had a bearing on the overall exercise of the Tribunal’s discretion. For that reason, it could not have caused the Tribunal’s function to miscarry in the way required for an error to be identified as jurisdictional.

22    I do not accept the Minister’s submissions. I consider this ground should succeed. As I have noted, the error by the Tribunal is conceded by the Minister. Senior Counsel for the Minister, responsibly, accepted that given the terms of para 13.2(1) of the Direction, the Tribunal had not performed the task required of it by the Direction, read with the unequivocal obligation in s 499(2A). He accepted, again responsibly, that this meant the authorities on which the Minister relied were to be considered by way of analogy, rather than as directly applicable.

23    The debate between the parties thus centred on the consequence of the conceded error. The Minister submits it is either not jurisdictional in nature, relying on the authorities I set out below, or that as a matter of discretion, relief should be refused because the Court cannot be satisfied the error deprived the applicant of a successful outcome. The Minister relies on the submissions about the Tribunal’s reasoning which I have set out at [19]-[21] above.

24    I am not satisfied that the failure of the Tribunal to perform the task it was obliged by para 13.2(1) of the Direction to perform is a failure which was insufficiently material to the outcome of the merits review to justify refusal of relief. I am also not satisfied that read in the context of the Tribunal’s other findings, the error (characterised – as the Minister accepted – as a failure to perform a task required of it by the Direction) is not jurisdictional in nature.

25    There are therefore three matters to be explained as to why I have reached these conclusions. The first is to examine in more detail the Tribunal’s failure to perform its task and what I consider the consequence of that failure was. The second is to explain why I reject the Minister’s submission that this error is not jurisdictional in nature. The third is to explain why, in the alternative, I do not consider it appropriate to refuse relief as a matter of discretion.

What the Tribunal failed to do

26    The Direction comprises a preamble, together with three substantive parts, each of which is directed at a different decision-making process under the Migration Act. Part A deals with discretionary cancellation decisions. Part B deals with discretionary refusal decisions. Part C deals with discretionary revocation decisions. Part C is the applicable Part to the applicant’s circumstances. The considerations it sets out are, by para 7 of the Direction, rendered mandatory in revocation decisions.

27    The preamble contains a number of important general provisions, which govern the task of decision-makers under the more specifically applicable Parts. Where relevant I set out extracts from the preamble below.

28    The “best interests of minor children in Australia” are identified in para 13(2) of Part C as one of three “primary considerations” for the purposes of the Direction. There are two other primary considerations: protection of the Australian community and the expectations of the Australian community, as each of those concepts are described in other provisions of the Direction.

29    It is necessary to set out the terms of para 8 of the Direction, which regulate how the considerations dealt with in the Direction should be taken into account by decision-makers. Paragraph 8 operates by reference to “primary” and “other considerations”, which is a division replicated in Part C.

8.    Taking the relevant considerations into account

(1)    Decision-makers must take into account the primary and other considerations relevant to the individual case. There are differing considerations depending on whether a delegate is considering whether to refuse to grant a visa to a visa applicant, cancel the visa of a visa holder, or revoke the mandatory cancellation of a visa. These different considerations are articulated in Parts A, B and C. Separating the considerations for visa holders and visa applicants recognises that non-citizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa applicant should have no expectation that a visa application will be approved.

(2)    In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.

(3)    Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.

(4)    Primary considerations should generally be given greater weight than the other considerations.

(5)    One or more primary considerations may outweigh other primary considerations.

30    The terms of subparas 8(4) and (5) make it apparent that decision-makers are able to ascribe more weight to one primary consideration than another. Although the Direction instructs decision-makers that primary considerations are “generally” to be given more weight than “other considerations”, it will of course be a matter for an individual decision-maker to ascribe weight to different factors, including as between primary and other considerations, based on the evidence and material in a particular case, and the decision-maker’s lawfully, reasonably and rationally formed views of that material.

31    In Jagroop v Minister for Immigration and Border Protection [2016] FCAFC 48; 241 FCR 461, the Full Court (Kenny and Mortimer JJ, Dowsett J agreeing) considered both Direction No. 65 and its predecessor, Direction No. 55. There are only slight differences between the two Directions: see [18] of Jagroop. At [57], Kenny J and I said:

Notwithstanding these features [that is, the compulsory aspects under s 499(2A) and the mandatory requirements of the Direction for a decision-maker to consider certain matters, and the weight to be assigned to the matters], as the Minister submitted, the terms of Direction No 55 do not purport to direct a decision-maker as to the outcome of the s 501(2) residual discretion in relation to any given individual, or categories of individuals. Further, by the use of qualifying words such as “generally” (for example, in cl 8(4) that primary considerations “should generally be given greater weight than the other considerations”), the weighing process in each case is in substance left, as it must be, to the individual decision-maker exercising the power under s 501.

32    This applies equally to Direction No. 65. At [78], we said:

The contents of Direction No 65, like the contents of Direction No 55, must inform the matters the Tribunal examines. Both Directions set out prescriptively the content of many of those matters. By doing so, a question may arise regarding the relationship between the Directions and s 501, including the extent to which a Direction may validly modify the scope of a power or function provided for by the Act: Williams v Minister for Immigration and Border Protection (2014) 226 FCR 112 at [36]-[43]. However, no submission was advanced in this proceeding regarding the validity of either Direction and the prescriptiveness just identified is a common feature of both Directions, rather than a difference between them. Ultimately, in the application of both Directions, each decision-maker must return to the probative material and evidence in an individual case: it is not the content of the Direction which determines the outcome of the exercise of the s 501 discretion, but rather its application by a particular decision-maker to the evidence and material in an individual case.

33    I turn now to para 13.2 of the Direction, which deals expressly with the primary consideration of the best interests of the child. It is common ground, and apparent from the heading to para 13.2 that the provision is not limited to children with whom the person whose visa has been cancelled is in some kind of parental relationship. Neither para 13.2, nor the Direction, use “children” in that sense. Rather, it refers to persons who are minors, being under the age of 18: see Annex B of the Direction. Thus, the provision applies to decisions where there is a minor under the age of 18 affected by the decision whether or not to revoke cancellation of a visa.

34    The structure of para 13.2 is that para 13.2(1) imposes a positive obligation on decision-makers to make a determination about whether revocation is, or is not, in the best interests of the child. The use of the phrase “make a determination” is unequivocal. It requires a positive finding or conclusion to be made. So much is also apparent from the use of the phrase “whether revocation is, or is not…”. The decision-maker (here, the Tribunal) must reach a conclusion, one way or the other, on this matter. Combined with the Tribunal’s obligation to provide reasons for its decision, including its material findings of fact and the evidence or material on which those findings were based (see s 430 of the Act), it is clear that the Tribunal’s task will involve it examining the evidence and material before it in order to make this determination, and then reasoning out, in a written form, what its findings and conclusions are on this determination. Recognising how this determination function will be performed, and what reasoning process the Tribunal would need to adopt, and set out in its reasons, is important in resolving the Minister’s contentions about the consequence of the Tribunal’s error.

Why the error is jurisdictional

35    In my opinion this error is jurisdictional in nature. Non-compliance with the terms of the Direction, read with the obligation in s 499(2A) imposed on the Tribunal, have been seen in decisions in this Court as capable of resulting in jurisdictional error. In Williams v Minister for Immigration and Border Protection [2014] FCA 674; 226 FCR 112 at [22]-[44], I examined the legal character of Ministerial Directions made pursuant to s 499, although in those reasons I discussed some aspects of their legal character without determining those matters (but see Uelese v Minister for Immigration and Border Protection [2016] FCA 348; 248 FCR 296 at [54] where Robertson J decided that Direction No. 65 is not a legislative instrument). What I did note, at [34]-[35], was that a number of decisions of this Court have accepted that non-compliance with a provision in a s 499 Ministerial Direction can constitute jurisdictional error. All the decisions to which I referred in those paragraphs dealt with predecessor directions to Direction No. 65. In Williams and most if not all of the decisions to which I referred, different parts of the applicable Ministerial Direction were in issue, as the underlying power was located in s 501 of the Migration Act. However, the predecessor directions, like Direction No. 65, replicated similar decision-making constraints for each of the powers covered by Parts A, B and C of the Direction.

36    Since Williams there have been other similar statements made: Chen v Minister for Immigration and Border Protection [2017] FCA 46 at [31] (Burley J); Uelese at [55].

37    I noted also at [42] of Williams, that arguments that directions in the nature of Direction No. 65 constitute an unlawful fetter on a discretion conferred in unconfined terms by the Migration Act itself have met with mixed results. No such argument was made here, so there is no occasion further to examine those authorities.

38    As to the cases in [34]-[35] of Williams, neither party in this application referred the Court to those authorities, or any more recent cases along similar lines, although they are of some relevance. For example in Paerau v Minister for Immigration and Border Protection [2014] FCAFC 28; 219 FCR 504, the Full Court decided by majority (Buchanan and Perry JJ, Barker J dissenting) that, in the particular circumstances of its review of a cancellation decision, the failure by the Tribunal to make a determination whether cancellation was in the best interests of the children affected was not erroneous at all, let alone erroneous in a jurisdictional sense. The Minister did not make any such argument on this appeal. He accepts there was some material before the Tribunal, although he contends it was limited, and not emphasised or developed by the applicant or his legal representative before the Tribunal. And unlike Paerau, this was not a review decision affected by the terms of s 500(6H) because it did not involve an exercise of power under s 501.

39    In my opinion, aside from the kind of circumstances which arose in Paerau (and which, like Uelese v Minister for Immigration and Border Protection [2015] HCA 15; 256 CLR 203, were also affected by the operation of s 500(6H) of the Migration Act), the trend of authority in this Court supports the proposition that in order to give effect to the terms of s 499(2A) (and subject to any validity issues about a particular Direction), a failure by a decision-maker or Tribunal to comply with a clear obligation imposed by a s 499 direction should be characterised as meaning the decision-maker or Tribunal constructively failed to exercise its jurisdiction, or strayed outside its jurisdiction. Put another way, where there is a valid direction made under s 499 of the Act and s 499(2A) applies, any obligations imposed by that direction as part of the statutory task of the decision-maker are, and are intended by the scheme of the Migration Act by reason of the presence of s 499(2A), to be an essential or inviolable limitation on the power conferred by the relevant provisions of the Migration Act (here, s 501CA(4)): see generally Plaintiff S157/2002 v Commonwealth [2003] HCA 2; 211 CLR 476 at [76]. I emphasise that this analysis assumes, rather than decides, that a Direction made under s 499, such as Direction No. 65, is capable of imposing on decision-makers the kind of mandatory obligations it purports by its language to do, by (for example) making certain matters mandatory considerations and requiring decision-makers to determine certain matters. The larger question of whether a s 499 Direction can achieve this result in relation to a wide statutory discretion, is the one I left open in Williams, and as far as I am aware, it has not been finally determined in this Court, or by the High Court (but see Bochenski v Minister for Immigration and Border Protection [2017] FCAFC 68 at [77], cf Jagroop at [78]).

40    As Senior Counsel for the Minister conceded, the authorities on which he relied in his submissions (Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24 and Lu v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 340; 141 FCR 346) were dealing with the ground of review of a failure to take into account a relevant consideration. That is not the proper characterisation of the error made by the Tribunal here, as Senior Counsel properly accepted. For the reasons I have set out above, that error is clearly jurisdictional. In any event, both those authorities, and in particular the passages in Lu on which the Minister relies (at [6] per Black CJ and at [64] per Sackville J), disclose that their Honours were considering the issue in light of the Court’s accepted discretion to refuse relief, where it is satisfied that a person was not deprived of the possibility of a successful outcome. That is the approach, in relation to the jurisdictional error of denial of procedural fairness, set out by the High Court in Stead v State Government Insurance Commission [1986] HCA 54; 161 CLR 141, where the Court was clearly dealing with the discretion to grant relief on judicial review, albeit of an exercise of judicial rather than administrative power. The bar set in that case, and applied consistently thereafter, is a low one: see for example, the recent endorsement of the approach in Stead to judicial review of administrative decisions by members of the High Court in Minister for Immigration and Border Protection v WZARH [2015] HCA 40; 256 CLR 326 at [43] and [60]. Similar comments have been made outside of procedural fairness cases: see, for instance, Greenwood J’s reasons in House v Defence Force Retirement and Death Benefits Authority [2011] FCAFC 72; 193 FCR 112 at [31], a case concerning error of law on the part of the Administrative Appeals Tribunal, where his Honour said:

It follows therefore that when the Court is considering whether an applicant should be denied relief on the ground that a demonstrated error of law could not have materially affected the Tribunal’s decision, the Court must be satisfied that the error of law did not deny the aggrieved applicant of the possibility of a successful outcome (Ex parte Aala; Lu v MIMIA) or, put another way, the error of law (ultimately relevant to the Tribunal’s findings of fact) could make no difference (Gleeson CJ, Ex parte Aala) to the result already reached. Dismissing an appeal in the face of a demonstrated error of law, on the ground that the decision of the Tribunal is “clearly correct”, is to be understood as a conclusion that the Court is satisfied the demonstrated error did not deny the aggrieved applicant of the possibility of a successful outcome. A conclusion that the Tribunal’s decision is “clearly correct” necessarily means no possibility of a successful outcome on the material before the Tribunal subsists. A test framed by the Full Court in Hill v Repatriation Commission in terms of the Court not refusing relief if satisfied that the error of law “arguably even possibly” affected the decision reached is simply an emphatic restatement of the test in Ex parte Aala and applied in Lu v MIMIA that relief will not be refused in the face of demonstrated error unless there is no possibility of a successful outcome. An arguable possibility remains a possibility.

41    A similar point was made by Gilmour J in House at [133] (in dissent on the outcome but not on the test). This test was recently applied by Charlesworth J in Shrestha v Minister for Immigration and Border Protection [2017] FCAFC 69 at [124] and [126].

42    I turn to consider the discretionary question.

Why there should be no refusal of relief as a matter of discretion

43    The Minister is correct to submit that there was little detail, in terms of the amount or depth of evidentiary material provided to the Tribunal, about the circumstances of the children said to be affected by the revocation decision and the applicant’s potential removal from Australia. It is correct also that there was not a concentration on this at the hearing before the Tribunal. There may be a number of practical explanations for this, not the least of which is the obvious fact, arising from the Tribunal’s reasons, that the Tribunal member herself focussed on the crimes committed by the applicant, and his risk of reoffending. To say that is not to criticise that focus as unlawful or inappropriate: rather, it is simply to recognise that was the forensic situation in which the applicant and his legal representatives found themselves. In that context, it can be appreciated why the applicant’s representatives might also concentrate on those matters, in order to persuade the Tribunal member.

44    That focus, at a factual and weight level by the Tribunal, does not obscure or reduce its obligations to make the determination required by para 13.2(1). The Tribunal’s reasons did not set out the terms of para 13.2(4) and the Tribunal did not undertake any exercise of considering these matters. That failure is part of the failure to perform its duty under para 13.2(1).

45    There was a range of evidence about the applicant’s relationship with his younger brothers, and with his niece and nephews. The applicant’s grounds do not extend to his young cousins and I do not consider the Tribunal’s approach to them further.

46    What follows are but some examples of the kind of evidence that, if it performed the task required of it, the Tribunal is likely to have had to consider, weigh and evaluate.

47    There was a considerable amount of evidence about the closeness of the applicant’s family, and their support of him. Although the Minister suggests that this “closeness” was contradicted at a factual level because the young children were not taken to visit the applicant in prison, I consider it is important to note that there may be a number of assumptions, some of them stereotypical, bound up in a suggestion such as that. In any event, these are matters for the Tribunal. The Tribunal’s reasons refer to the evidence about the family’s closeness at some points, but not in the best interests consideration. For example, the applicant’s elder sister stated:

9.    I was shocked by the court case. I didn’t realise the trouble he had gotten himself into. It was mostly surprised because it wasn’t the [the applicant] I knew. It took me a very long time to believe that he did the things he did. At court I felt like they were talking about a completely different person. He was a different person. But he is my brother. My family and I never stopped supporting [the applicant], we supported him through the court process and continue to support him now. That won’t stop.

10.    Since [the applicant] has been in prison I keep in close contact with him. It can be difficult because he is often moved around between prisons. I would try to see him at least once a month and often more regularly. When [the applicant] was at Loddon Prison in Castlemaine our family moved to [a major Victorian regional city] so that we could be closer to him. We speak on the phone once or twice a week.

(Identifying information removed.)

48    A family moving from Melbourne to a major Victorian regional city to support an incarcerated son is significant, and precisely the kind of evidence covered by the relevant consideration in para 13.2(4)(a) of the Direction.

49    Linked with this was the following kind of evidence from the applicant himself:

5.    My family is very close. My sister, [redacted], who is 30, has three children aged three years and under. She currently lives with [redacted], the wife of my uncle, [redacted], and their three children in [redacted]. [My sister] has separated from her partner and raises the two younger children mainly on her own. I really love and respect [my sister] Her eldest child, a son named [redacted] but we call him [redacted], has special needs. He has to be fed out of a tube because he cannot eat through his mouth. He will have a tough life and [my sister] needs help and support from the family to raise him. I really want to assist her. If I am released will live with my mother and assist her and [my sister].

6.    My mum, [redacted], and my dad, [redacted], live in [redacted]. They moved there to get away from the former friends who were a bad influence on me and to help me make a new start when I was to be released. Mum and Dad are currently living separately but are still happily married. The reason for this situation is that my brother [redacted] started renting a three-bedroom house down the road from my parents’ house, and it was too big for him, so Dad said he’d go stay with him for a while for company. Usually they all eat together at mum’s house, and [my sister] is often there as well with her children. My family is like a little community and everyone is always welcome at everyone else’s house. Mum and Dad really love each other and their marriage is close. They come and visit me all the time, as often as they can. Dad has hearing problems now and is getting older.

…

21.    Around the middle of 2016 I was asked if I wanted to go to Marngoneet to do some programs, but I chose to return to Loddon to be closer to my family. Things have been going well since I returned here. I have not been in any trouble. I am working as a billet for my unit ([redacted]) which means that I have a trusted role in the unit. After breakfast I have to clean up the unit and I also serve dinner to the other prisoners in the unit.

(Identifying information removed).

50    These again are the kinds of matters one would expect the Tribunal to examine as considerations under para 13.2(4)(a).

51    As I noted to counsel at the hearing, it seems to me one clear consequence of the Tribunal’s failure to comply with its obligation under para 13.2(1) of the Direction is that it did not give any real or serious consideration to the circumstances of the pre-school child I shall call “M”, who is one of the nephews of the applicant. “M” has some significant disabilities, having been born at 24-weeks’ gestation. He lives with the applicant’s mother and is cared for by her. The applicant’s sister, M’s mother, has an 18-month child and a three month old baby as well. Had the Tribunal looked at this evidence in any detail, the reasons why the applicant’s sister had not visited him very often in prison, and instead spoke to him regularly on the telephone might have been obvious. This was the applicant’s sister’s evidence in her statutory declaration:

3.    At the moment, my mum is looking after my son [redacted], who was born at 24 weeks and he stayed at the hospital for a year following his birth. He has many medical issues. He cannot eat through his mouth. It was not safe for him to swallow when he was born so he has been fed through a tube. He cannot talk properly either. Four times a day, my mum feeds him through a tube using a machine at her house into his stomach. He runs around and plays when he is not being fed, but his development is behind that of other children that age. He is healthy enough physically but it is very hard for him. Doctors at the Royal Children’s hospital are trying to help him learn how to eat through his mouth and this may or may [not] work in the coming months. We will have to see how it goes. He is still drinking milk only, and is not able to eat solids.

4.    I am currently spending most of my time at the home of [redacted], my uncle [redacted]’s wife. They are currently separated but they are friends. I am living in [redacted] with [redacted] and [redacted] and [redacted]’s three children, [redacted], [redacted] and [redacted]. My parents moved to [a major Victorian regional city] around two years ago. My mum wanted to get the family away from the group of people [the applicant] was involved with during his offending and to keep my other brothers away from the city and any bad influences. My siblings and I have remained close. My other two children are living with me full-time. They love being with [my uncle’s wife’s] children.

5.    Since [the applicant] has been in prison, I have been in continual contact with him. Since I gave birth to [my youngest child], it has been harder for me to visit him. During [redacted]’s birth, he broke his arm, so he needed extra care in his first weeks to make sure that his arm healed. He is having an x-ray on 22 December 2016 to make sure that his arm is healed. [My second eldest child] is in good health. Since I have been a new mum again, I have been less able to visit [the applicant] but I speak to him on the phone often.

6.    I have previously said that since my brother [the applicant] has been in prison he has matured a great deal, and I feel like he has become more like the brother I remember. This remains the case. When I gave birth to [my youngest child], [the applicant] called me and said he was jealous, because he would not be able to help babysit my children. He has only ever met my children when I have taken them to visit him in prison. He told me that if he was there, he might be able to come up with ideas about how [M] can eat. As [M] is not used to food and is scared to put it in his mouth, he still eats through the tube although the doctors are trying to teach him how to swallow liquids and eat solid food. [The applicant] told me he would like to help with this process and I believe that it is really hard for him not to be able to see my children all the time. He still has not met [my youngest child]. I would like him to meet my brother but it is hard to take a small baby especially given [my youngest child’s] arm.

…

9.    Our family is very close despite living in different parts of Melbourne and [redacted]. I am spending, as I said, most of my time at [my uncle’s wife’s] house but am at my mum’s house in [a major Victorian regional city] at least once a week, and whenever [M] has doctor’s appointments with the GP or the home nurse comes to check on him, I go to [redacted] then. I spend a lot of time with my parents and especially my mum and we are all close. I think that [the applicant] would find our family very supportive upon release.

…

11.    I very much want my children to have the chance to know my brother. [The applicant] is a good person and I want my children to get to know their uncle. I believe that he would help me a lot if he is released from prison and allowed to stay in Australia. I need him to help me with my children. The father of my children does not provide as much support as they need from their dad. He is not involved. All the doctors looking after [M] tell me how much support he needs due to his medical issues. I tell them that I have my family but they know that his father, [redacted], is not playing much of a supportive role. He does not contribute to medical fees or come with me to appointments – it is only my mum and I. I would like my children to look up to [the applicant] as a supportive and loving uncle who is a good role model to them, to set an example to them. I believe that [the applicant] can take his life on a different path when he gets out, that I will be proud of him and he will try to be the best person that he can be. He will be of enormous practical and emotional support to me and my children.

(Identifying information removed.)

52    The applicant’s mother is in her mid-fifties and, without repeating the evidence in these reasons, it was most apparent from other evidence before the Tribunal that the applicant’s mother had endured a great deal in South Sudan, and in Egypt. The evidence, apparently not contested by the Minister before the Tribunal, was that the applicant would live with his mother in the same regional city on his release. M also resides in that house. The evidence in the statutory declarations, and in oral evidence before the Tribunal, was that he intended to help out with his sister’s children, including M. The Tribunal did not find this evidence to be false. If the Tribunal had examined this issue in the detail required by the Direction, it is plain the Tribunal would have needed to address the likelihood of the applicant’s mother needing some assistance with the full time care of M, given his sister’s other very young children, and given the challenges facing someone in his mother’s position in caring full time for a pre-school child with significant disabilities.

53    None of this is to suggest only one conclusion would have been open to the Tribunal. Indeed, for example, the considerations in para 13.2(4) of the Direction place an emphasis on the parental role of the person whose visa revocation is under consideration. Whether or not it might be said on the material the applicant would have “parental role” in relation to any of these children, even M, is clearly an issue which would need to be considered because little if any material suggested he would have that kind of role.

54    However in my opinion, and even from the examples I have set out, which do not exhaust the evidence on this topic before the Tribunal, it is clear that the Tribunal, approaching the matter as it was required to do with a mind open to persuasion, and performing the task required of it, could have ultimately seen the best interests of the children likely to be affected by the revocation decision (and M in particular) as a factor weighing in favour of revocation of the visa cancellation. Again, with a mind open to persuasion, and looking at the applicant’s family circumstances, his age and his background, it could have found these factors were to be given more weight than his risk of reoffending. Again, these are matters for the Tribunal, but I am not prepared to find that there was no possibility of a different outcome if the Tribunal had performed this task in accordance with its obligations. I consider the applicant was deprived of the possibility of a successful outcome on the revocation decision by reason of the Tribunal’s jurisdictional error.

55    Accordingly, I would not refuse relief to the applicant as a matter of discretion.

Ground 3

56    The applicant contends:

The Tribunal’s findings in respect of extent of impediments if the applicant were removed from Australia are affected by legal unreasonableness and/or illogicality/irrationality; or in the alternative, the Tribunal failed to take into account a relevant consideration, being the impact on the applicant of an absence of psychiatric support.

f.    The Tribunal appeared to accept the evidence before it that the applicant suffers from Post-Traumatic Stress Disorder (PTSD) (paras [13]-[16], Tribunal’s decision).

g.    The Tribunal accepted that psychiatric support in Sudan or South Sudan is ‘minimal’ (para [80], Tribunal’s decision).

h.    The Tribunal noted that the applicant had attended fewer psychological support sessions than provided for during his imprisonment in the last five months and that he frequently failed to collect his medication resulting in his prescriptions being cancelled (para [81], Tribunal’s decision).

i.    The applicant gave evidence that at times, he ceased his Olanzapine medication as a result of not picking them up on a daily basis as they were dispensed. If they were not picked up for three days the prescription was cancelled. He also gave evidence that when he ceased his medication, he suffered a degree of withdrawal and became isolated from the prison community (paragraph [20], Tribunal’s decision).

j.    The Tribunal found that ‘given his behaviour in relation to the provision of psychological assistance and medication, the impediment arising from his removal where such treatment may not be available at all, is reduced albeit to his detriment’ (para [81], Tribunal’s decision).

k.    The Tribunal did not make a finding that the failure of the applicant to collect his medication or to attend all psychological support sessions in any way negated his diagnosis of PTSD or suggested that he had recovered from his PTSD.

l.     The Tribunal’s reasoning appeared to be that the ‘impediment to removal’, being of an absence of psychological assistance and medical treatment, was ‘reduced’ because of the applicant’s attitude towards such assistance (paras [80]-[81], Tribunal’s decision).

m.    This finding was punitive and legally unreasonable/affected by illogicality/irrationality in circumstances where the Tribunal cited, and did not dispute, evidence that the applicant became withdrawn and isolated in the absence of his medication. In the alternative, the Tribunal failed to consider that impact on the applicant – an isolated and withdrawn presentation and affect – in considering any impediments to removal.

57    I consider this ground also has merit.

58    Paragraph 14.5 of the Direction dealt with one of the “other considerations” the Tribunal was required to take into account. Its terms provided:

14.5     Extent of impediments if removed

(1)     The extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:

a)     The non-citizen’s age and health;

b)     Whether there are substantial language or cultural barriers; and

c)     Any social, medical and/or economic support available to them in that country.

59    The terms, structure and purpose of the Direction by its identification of “primary considerations” and “other considerations” indicates that any one of these considerations, or a combination of them, is capable of constituting “another reason” to revoke the cancellation of a person’s visa. What is required by s 501CA(4) is that the decision-maker, here the Tribunal, form a state of satisfaction about the existence or non-existence of “another reason”; and this occurs in turn through the Tribunal forming a state of satisfaction about, amongst other matters, the considerations set out in the Direction, both primary and “other”.

60    On the evidence before the Tribunal, there was clearly a question raised about the applicant’s need for psychiatric support and medication. The Tribunal’s reasons on this aspect were as follows:

80.    As per paragraph 14(1)(e) of Part B of the Direction, the impediments that might be suffered by YNQY should he return to Sudan or South Sudan are uncertain. His preferred language now seems to be English although he asked for and utilised the services of a Dinka interpreter to give some of his evidence. The Tribunal assumes he remains fluent in that language. He [sic] age and health are not a major factor and economic or social support available to him is unknown. There is however, the problem of medical, in the form of psychiatric support, should be [sic] return to Sudan or South Sudan as it is clear from the data provided that such support is minimal.

81.    The Tribunal does note that while he has been provided psychological support and medication for his PTSD for at least the last six months, he has not availed himself completely of these provisions having attended fewer sessions than provided for during his imprisonment during the last five months. He has frequently not collected his medication resulting in his prescriptions being cancelled. Given his behaviour in relation to the provision of psychological assistance and medication the impediment arising from his removal where such treatment may not be available at all, is reduced albeit to is detriment.

61    The applicant’s evidence in his statement about his PTSD and medication was:

25.    I still suffer from Post-Traumatic Stress Disorder. I have been seeing Sharon, a psychologist who comes here, each Thursday for the last seven weeks. I feel that she is already assisting me. I have been talking to her about my life. I said before that I was so damaged by what happened to me in Egypt that I would never recover emotionally. I still think that what happened will never go away, but with the passing of time and speaking to Sharon about it, has made it easier to bear.

26.    I think also that I am more adapted to my situation and philosophical about things, so I have been more relaxed recently. I have been doing a lot of reading through the prison library book club. I have learnt that I cannot change my past but can use it as a guide to determining a better future for myself.

27.    While I was in Barwon last year I completed eight modules of a business studies course. I have not started education at Loddon. The education system here is not very organised and not many classes are available for prisoners.

28.    About three months ago I ceased taking the medication that I was on for many years. I felt that it didn't have any positive effect on me any more. Since I stopped taking it I haven’t felt the need to have it again and am feeling calm.

62    I note at this point there was considerable evidence about what happened to the applicant in Egypt, which need not be described in these reasons. The Tribunal appeared to have accepted the various witnesses’ accounts of what happened to the applicant there, and certainly made no finding these accounts were false.

63    In oral evidence in chief concerning his PTSD and medication, the applicant stated:

MR HUGHAN: And why have you stopped using it from time to time?

[The applicant]: Sometimes I get my mind getting into it and either I ask for doctor to put up the dose or sometime I stop it.

MR HUGHAN: Are there any unpleasant side-effects that, you know, would cause you to stop it or anything like that?

[The applicant]: No.

MEMBER: No side-effects?

[The applicant]: No side-effect.

MEMBER: So that’s the only drug you’ve been tried on, they haven’t swapped drugs or anything else?

[The applicant]: They have, they have - I’ve been on Seroquel as well as Avanza.

MEMBER: Yes.

[The applicant]: Yes. And there’s another - - -

MEMBER: That didn’t help?

[The applicant]: Yes, some of them helped but sometime, like I said, one - like I feel they’re not helping, I either ask the doctor to pull up or change it or ask - - -

MEMBER: And if they don’t you stop it yourself - - -

[The applicant]: Yes.

MEMBER: - - - and see what happens?

[The applicant]: Yes.

MR HUGHAN: Well, now, let’s talk about that. When you have stopped the medication has it affected your behaviour stopping the medication?

[The applicant]: Being on medication or off the medication?

MR HUGHAN: Stopping the medication?

MEMBER: Off. When you come off - - -

[The applicant]: Yes.

MEMBER: - - - what happens to you? Two weeks after - some of them take a while to get out of the system. Say you stop everything - - -

[The applicant]: Yes.

MEMBER: - - - what are you like 10 days later?

[The applicant]: I just - I’m more isolated, like I withdraw to myself and that and I would want to be by myself more than anything.

MR HUGHAN: Maybe I’ll ask you there. On parole do they have any requirements about taking prescribed medication or not? You know, can that be made a condition of parole?

[The applicant]: I don’t know that.

MR HUGHAN: If you were required to take it by the Parole Board, for instance, would you continue to do so?

[The applicant]: Yes, it’s beneficial to me so it’s up to me if I want to take the medication.

64    During cross-examination, the applicant said:

MS BRIFFA: … Mr Hughan spoke with you a little bit about periods during your incarceration where you have stopped taking medication?

[The applicant]: Yes.

MS BRIFFA: Now, you said in your most recent statement that you stopped taking medication in August last year, is that right?

[The applicant]: Yes.

MS BRIFFA: When did you start again?

[The applicant]: I don’t remember the exact date that I started. I don’t - - -

MS BRIFFA: Why did you start again?

[The applicant]: Everything was getting overwhelming.

MS BRIFFA: Which doctor told you to stop taking the medication?

[The applicant]: None of them particularly, just because I wasn’t taking them for three days you give, and then after that they just take you off it, whether you like it or not. If you miss three days in a row they take you off anyway.

MS BRIFFA: So but did you speak - - -

MEMBER: If you refuse - did you say if you refuse for three days in a row - - -

[The applicant]: Yes, like if - because you’re required to go pick it up yourself, so if you don’t show up, three days they cancel it anyway.

MR HUGHAN: The expression - he said if you miss three days in a row. I don’t know if it’s different to what - the question you asked, Member Shanahan, but I think he said if you missed - - -

MEMBER: I just - before I thought - no, I just wanted to clarify. I thought him going off was his decision alone. But now I think what he’s saying is if he goes off for three days, which means he doesn’t go and pick up his pill each day, if he doesn’t do it for three days in a row, they cancel it.

MS BRIFFA: Why do you stop picking up your pills for three days in a row?

[The applicant]: When I feel they’re not working for me.

MS BRIFFA: So you want - and you do that in the full knowledge that if you stop taking the medication for three days, they will stop giving it to you?

[The applicant]: Yes.

MS BRIFFA: Okay. So you make a decision to stop taking your medication?

[The applicant]: Yes, so I can get on a stronger one and either put up the dose or get a different one.

MS BRIFFA: And do you discuss this with any doctor?

[The applicant]: No, I don’t discuss any doctor.

MEMBER: Have you actually seen any doctor while you were in Loddon?

[The applicant]: Yes.

MEMBER: Psychiatrist?

[The applicant]: Yes.

MEMBER: How often?

[The applicant]: Whenever they’re available, I don’t know, I just put in appointment.

MEMBER: Once a month?

[The applicant]: It takes a month, two, I don’t know. Whenever they come around.

MEMBER: All right.

[The applicant]: Because they’re not established in the prison cell, they have to come from outside.

MEMBER: Yes. I realise that?

[The applicant]: Yes.

MS BRIFFA: We spoke a little bit previously about you accessing the [redacted] support services around the time that you were sentenced?

[The applicant]:     Yes.

MS BRIFFA: So at this time - and in one of the things that you’ve said in your statement is that you were surprised to go to adult prison?

[The applicant]: M’mm.

MS BRIFFA: You’ve also said, just recently, that you were very scared about going to prison?

[The applicant]:     Yes.

MS BRIFFA: So you must have been keen to show to the court that you were engaged in your rehabilitation and in working through some of the issues that you had had, which caused you to be violent?

[The applicant]: Yes.

MS BRIFFA: Now, the [redacted] reports said that there were 11 appointments made for you, but that you only attended five?

[The applicant]: Yes.

MS BRIFFA: Can you explain that? That’s less than half. Or it’s just less than half? This is at relevant document page 90.

[The applicant]: Yes. I had trouble with time management. Sometimes I go late or sometimes I - if I’m late for appointment I don’t feel like my excuse is going to be good enough so I just don’t go altogether.

(Identifying information removed.)

65    The Minister submits that whether this ground is treated as a rationality or a legal unreasonableness ground, the ultimate question is whether the Tribunal’s conclusions were reasonably open to it. I accept that submission, insofar as, at least implicitly, it relies on statements such as those made by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at [130]-[131]:

130    In the context of the Tribunal’s decision here, “illogicality” or “irrationality” sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is “clearly unjust” or “arbitrary” or “capricious” or “unreasonable” in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.

131    What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.

66    In my opinion the Tribunal’s approach falls within the descriptions of impermissible reasoning given by their Honours in these paragraphs. That is because the Tribunal could not perform this aspect of its task without examining why the applicant did not take his medication at some stages, or without looking at the applicant’s attitude to accessing counselling as a whole.

67    As to the applicant’s attitude to counselling, the Tribunal appears to have misconstrued the evidence concerning the applicant’s attitude to counselling. At [81], as I extracted at [60] above, the Tribunal said:

The Tribunal does note that while he has been provided psychological support and medication for his PTSD for at least the last six months, he has not availed himself completely of these provisions having attended fewer sessions than provided for during his imprisonment during the last five months.

(Emphasis added.)

68    Counsel for the applicant submits that the evidence before the Tribunal showed that this infrequent attendance at counselling sessions related only to the period prior to the applicant going to prison. Counsel submits that the evidence showed that during his imprisonment, the applicant’s attendance at his counselling sessions “was punctual and regular and without difficulty”. Senior Counsel for the Minister accepted that the Tribunal may have confused the two periods, however submits that it was an “immaterial confusion” and that it is “of no moment”.

69    The applicant does not submit that this confusion itself gives rise to error. However, this apparent confusion is an example of how the Tribunal failed to consider properly the applicant’s attitude, and access, to counselling as a whole. In order to speculate (as the Tribunal was required to do) about what the applicant might or might not do about accessing help and medication in South Sudan (minimal as it was accepted to be), the Tribunal needed to explore why the applicant did not always take his medication and why he attended only half of his counselling appointments prior to going into prison. It also needed to examine his (much more positive and insightful) attitudes to his counselling appointments while he was in prison (which was the more recent evidence) because that evidence needed to be factored into any prediction of what he might do in South Sudan. The Tribunal did not undertake this exercise at all. How the Tribunal assessed this evidence was a matter for it. The error lies in the failure of the Tribunal to explore the issues this kind of evidence raised, as part of its fact finding in applying para 14.5 of the Direction and the existence or non-existence of “another reason” to revoke the visa cancellation.

70    It was irrational for the Tribunal not to explore these issues before discounting and dismissing the “impediments” for the applicant in accessing any kind of treatment in South Sudan (whether by way of medication or counselling). It was irrational because any “impediments” could not be discounted or dismissed without examining how likely it was the applicant might try to access, or wish to access, this treatment. That in turn, required the Tribunal to look at why the applicant had or had not accessed medication or counselling on all the occasions he had been offered it. The issue was far more complex than the Tribunal suggested. Added to this, as would be apparent to a rational and reasonable Tribunal, would be the likelihood the applicant would be under a great deal more physical and mental stress, if he were placed in South Sudan against his will and without any supports, and he would therefore be more likely to need medication and to need counselling than in his relatively more stable circumstances in Australia. That was an obvious inference arising from the material and the Tribunal’s approach was made all the more irrational for its failure to appreciate that.

71    I am satisfied that the Tribunal’s state of satisfaction about the application of para 14.5 of the Direction to the applicant was one at which no rational or logical decision-maker could arrive at on the same evidence. That is because the Tribunal’s reasoning misconstrued the evidence concerning the applicant’s attendance at counselling sessions prior to and during his imprisonment, failed to consider why the applicant had not attended all of his pre-prison counselling sessions, and missed the critical step of examining and determining why the applicant stopped taking his medication from time to time. On any rational and reasonable view of the content and purpose of para 14.5, the Tribunal needed to address these matters to determine the nature and extent of any “impediment” the applicant would face if removed to South Sudan, and thus to form its state of satisfaction about whether there was “another reason” to revoke the visa cancellation.

72    In Myoung v Northern Land Council [2006] FCA 1130; 154 FCR 324 at [102], Mansfield J said:

There is sometimes a fine line between a rational finding based upon evidence, and one which is either not supported by evidence at all or by evidence which rationally cannot support the finding. That is a matter for judgment in all the circumstances.

73    I consider the Tribunal’s reasoning falls on the wrong side of that fine line in these circumstances. That level of irrationality means the Tribunal’s state of satisfaction on the consideration in para 14.5, which the Direction required it to determine, was not lawfully formed and the Tribunal’s decision is affected by jurisdictional error.

Ground 5 – community expectations

74    The applicant contends:

The Tribunal erred in the exercise of its jurisdiction or failed to exercise its jurisdiction by failing to make findings and/or take into account as a primary consideration the expectations of the Australian community.

75    This consideration can be found in para 13.3 of the Direction, and provides:

13.3     Expectations of the Australian community

(1)     The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government’s views in this respect.

76    In substance this consideration is adverse to any applicant. As the Minister submits, it is inextricably linked to the other primary consideration of protection of the Australian community. In particular, the last two sentences of para 13.3 of the Direction suggest the “expectations” about which it speaks are expectations adverse to the position of any applicant who has failed the character test and been convicted of serious crimes. In this primary consideration as expressed (and despite the references earlier in the Direction to “tolerance”) the Australian community’s “expectations” are defined only in one particular way: namely, that the Australian community “expects” non-revocation where a person has been convicted of serious crimes of a certain nature. That is, this is not a consideration dealing with any objective, or ascertainable expectations of the Australian community. It is a kind of deeming provision by the Minister about how he or she, and the executive government of which he or she is member, wish to articulate community expectations, whether or not there is any objective basis for that belief. That is the structure of this part of the Direction.

77    I do not consider that even if the applicant is correct to submit that the Tribunal did not undertake the task required of it by the Direction in relation to this consideration, he was deprived of a different outcome because of that failure. It was inevitable that this consideration would weigh against revocation: that is what it is intended to do (see Uelese [2016] FCA 348; 248 FCR 296 at [64]-[66]).

Conclusion

78    Whether one looks separately at the two errors the applicant has identified and I have found to exist, or looks at them in combination, either way there is a sound basis to find that the applicant has been deprived of the possibility of a successful outcome on his review, in the sense that these errors were material or critical to the Tribunal’s reasoning in affirming the decision under review.

79    The usual order in these circumstances would be that the Tribunal’s decision be set aside, and the matter remitted to the Tribunal, differently constituted, for determination of the review according to law. However, the matter is complicated by the two grounds which remain undetermined. The parties should have an opportunity to consider (and attempt to agree upon) appropriate orders, in the context of the refusal of the special leave application in BCR16. As I noted earlier, it would seem that the refusal of special leave should enable the finalisation of this proceeding on the basis of these reasons.

80    I will also give the parties an opportunity to be heard on the question of costs.

Associate:

Dated:    7 December 2017