FEDERAL COURT OF AUSTRALIA

Ayache v Minister for Home Affairs [2019] FCA 80

ORDERS

THE COURT ORDERS THAT:

1.    The decision of the Second Respondent on 22 February 2018 to affirm the decision of a delegate of the First Respondent to refuse to grant the Applicant a Partner (Temporary) (Class UK) and Partner Residence (Class BS) visa under section 501(1) of the Migration Act 1958 (Cth) be set aside.

2.    The Applicant’s application for review be remitted to the Tribunal to be heard and determined according to law.

3.    The First Respondent pay the Applicant’s costs of and incidental to the application.

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

REASONS FOR JUDGMENT

MURPHY J:

1    In this application the applicant, Mr Khaled Ayache, seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) on 22 February 2018, which affirmed a decision of a delegate of the first respondent, the Minister for Home Affairs, to refuse to grant Mr Ayache a Partner (Temporary) (Class UK) and Partner (Residence) (Class BS) (together, Partner) visa. The Tribunal affirmed the delegate’s decision on the basis that Mr Ayache does not pass the character test in s 501 of the Migration Act 1958 (Cth) (the Act), because he has a “substantial criminal record” as defined.

2    It is uncontentious that Mr Ayache has a substantial criminal record within the meaning of ss 501(6)(a) and 501(7)(d) of the Act. Over the period December 2011 to February 2017 he was convicted of a number of criminal offences committed between March 2011 and October 2015. On 20 February 2017 he was convicted of three offences, one count of possessing methamphetamine, one count of trafficking methamphetamine and one count of trafficking cannabis. He was sentenced to eight months’ imprisonment on each of the trafficking charges.

3    It is plain enough that, having regard to his history of offending, a decision to refuse to grant Mr Ayache a Partner visa may be open to a reasonable decision-maker, but the Tribunal was required to make its decision based on the evidence before it. In my view the Tribunal partly based its decision on an erroneous factual finding that, on top of Mr Ayache’s history of criminal offending, he also unlawfully resided in Australia, without a valid visa, over two periods of time, which informed the Tribunal’s conclusion that Mr Ayache’s history in Australia reveals a “willingness to behave as he wishes”. The evidence is that Mr Ayache was unlawfully in Australia – that is, without a visa – for the first period of time but not the second. It is uncontentious that the Tribunal erred in making the factual finding regarding the second period.

4    The Minister argues, amongst other things, that the Tribunal’s error was a mere error of fact which is immaterial to its decision. While I have little doubt that the Tribunal’s decision was primarily based on Mr Ayache’s history of criminal conduct, having regard to the Tribunal’s reasons I am not satisfied that the Tribunal’s erroneous finding as to his visa history was immaterial to its conclusion. In my view the Tribunal fell into jurisdictional error and it is appropriate to allow the application.

The facts and procedural history

5    Mr Ayache is a citizen of Lebanon and lived in that country until aged 24. His wife, Mrs Samaher Ayache, is an Australian citizen who has lived her whole life in Australia. They met approximately 29 years ago when Mrs Ayache and her family were in Lebanon visiting relatives. They married in Lebanon under Sharia law on 6 September 2006.

6    On 13 September 2007 Mr Ayache arrived in Australia, aged 24, as the holder of a Prospective Marriage (Temporary) (Class TO) visa, sponsored by Mrs Ayache. On 28 October 2007 Mr and Mrs Ayache married according to Australian law and they now have three children: a son aged ten, a daughter aged six and a younger daughter aged three.

7    Mr Ayache’s temporary visa was only valid until 31 May 2008 and in order to remain lawfully in Australia he was required to apply for a further visa before his temporary visa expired. He did not apply for a Partner visa until 7 May 2009. He was therefore unlawfully in Australia, without a visa, between 1 June 2008 and 7 May 2009, a period of 11 months.

8    Mr Ayache was granted a Partner (Temporary) (Class UK) Subclass 820 visa on 9 February 2010 but he then failed to give the Department of Immigration and Border Protection evidence of his ongoing marital relationship. On 2 May 2012 a delegate of the Minister refused his application for a Partner visa. Mr Ayache had a Bridging A (Class WA) visa which took effect from the date his application for a Partner visa was refused.

9    On 28 May 2012 Mr Ayache lodged an application for review of the delegate’s decision with the Migration Review Tribunal (MRT).

10    On 3 June 2013 the MRT decided that Mr Ayache continued to live in a spousal relationship with his wife and therefore satisfied one of the criteria that he was required to meet for a Partner visa. The MRT remitted the matter to the Department with a direction to that effect.

11    While Mr Ayache’s application for a Partner visa was on foot, and both before and after he was granted the bridging visa, the evidence shows that he engaged in criminal conduct on five separate occasions over four and half years. The Tribunal summarised his history of criminal offending as follows:

12    In sentencing Mr Ayache on 20 February 2017 Judge Quin set out the circumstances of the offending conduct for which he was arrested in October 2015. Her Honour noted that Mr Ayache’s co-accused, who delivered drugs to him, was caught at Melbourne airport with a large amount of methylamphetamine. The prosecution accepted that the amount of methylamphetamine that was intended to be delivered to Mr Ayache was unknown, but said the amount was at least in excess of the trafficable amount, being 3 grams.

13    At Mr Ayache’s home police found a bungalow set up as a home office in which were found two bags of methylamphetamine, one containing 16.2 grams of methylamphetamine with a purity of 84% and another containing 0.82 grams of methylamphetamine with a purity of 39%. The police also found 5.14 kg of cannabis. Under the relevant legislation a trafficable amount of cannabis is 250 grams and a commercial quantity is 25 kg. The bungalow was set up with a comprehensive surveillance system and a review of the footage showed that Mr Ayache frequently attended the bungalow and met drug customers. A significant number of telephone intercepts showed Mr Ayache speaking with unknown parties in relation to trafficking drugs.

14    Dr Cunningham, a forensic psychologist, provided a report. Mr Ayache reported to the psychologist that he commenced using methylamphetamine four years prior, together with alcohol, as a means to cope with financial pressures and problems regarding his limited employment. Dr Cunningham opined that Mr Ayache’s drug abuse was the main contributor to his criminal conduct. Judge Quin accepted Mr Ayache had good rehabilitation prospects, but was “somewhat cautious” about his drug issues. Her Honour noted that Mr Ayache had a “relatively sophisticated set up, running [his] business with video security and home office. There was a significant amount of activity detected and it related to two different types of drugs.” Her Honour noted that the Office of Corrections reported Mr Ayache as being a medium risk of reoffending.

15    On 29 November 2017 a delegate of the Minister refused Mr Ayache’s application for a Partner visa under s 501(1) of the Act, doing so on the basis that he does not pass the character test in s 501(6)(a) as he has a substantial criminal record. It is uncontentious that under the definitions in the Act, Mr Ayache does not pass the character test.

16    On 4 December 2017 Mr Ayache applied to the Tribunal for review of the delegate’s decision. On 22 February 2018 the Tribunal decided to affirm the delegate’s decision.

Legislative framework

17    Section 501(1) of the Act provides a discretionary power for the Minister to refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test, including because he or she has a “substantial criminal record” as defined by s 501(7). Section 501(7)(d) provides that a person has a substantial criminal record if “the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more”.

18    Section 501(7A) provides that, where a person is sentenced to 2 or more terms of imprisonment, which terms are to be served concurrently whether in whole or in part, the whole of each term is to be counted in working out the total of the terms. Thus, when Mr Ayache was sentenced to eight months’ imprisonment on each of the two counts of trafficking a drug of dependence, although six months were to be served concurrently, the relevant period for assessing whether a person meets the character test is the full term of each sentence of imprisonment.

19    Where a delegate of the Minister exercises the power in s 501(1), the delegate is required do so in accordance with a ministerial direction made under s 499 titled Direction 65 – Migration Act 1958 – Direction under section 499 Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Direction 65).

20    Paragraph 7(1)(a) of Direction 65 sets out the manner in which the decision-maker should exercise the discretion in s 501(1):

Informed by the principles in paragraph 6.3 above, a decision-maker:

(a)    must take into account the considerations in Part A or Part B, where relevant, in order to determine whether a non-citizen will forfeit the privilege of being granted, or of continuing to hold, a visa; or

(b)    must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.

21    Paragraph 11 in Part B of Direction 65 sets out the following “primary considerations” in deciding whether to refuse a non-citizen’s visa, being:

(a)    protection of the Australian community from criminal or other serious conduct;

(b)    the best interests of minor children in Australia; and

(c)    expectations of the Australian Community.

22    Paragraph 11.1 provides that:

When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. There is low tolerance for visa applicants who have previously engaged in criminal or other serious conduct. Decision-makers should also give consideration to:

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

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

The Tribunal decision

23    The hearing before the Tribunal took place on 9 February 2018. On 22 February 2018 the Tribunal affirmed the delegate’s decision to refuse to grant Mr Ayache a Partner visa.

24    In advance of the hearing before the Tribunal the Minister filed a document titled “Respondent’s Statement of Facts, Issues and Contentions”. Under the heading “Risk to the Australian community” the Minister referred to Mr Ayache’s history of criminal offending and, in addition, invited the Tribunal to have regard to the 11 month period between 1 June 2008 and 7 May 2009 when Mr Ayache was unlawfully in Australia, without a visa. The Minister submitted that Mr Ayache’s “substantial period of unlawful residence in Australia indicates his lack of respect for Australian migration laws.”

25    The Minister did not submit to the Tribunal that Mr Ayache was also unlawfully in Australia for the 26-day period between 3 and 28 May 2012, being the period immediately following the initial refusal of his application for a Partner visa. The transcript of the hearing shows (at T:100.5-33) that counsel for Mr Ayache specifically informed the Tribunal (and the Tribunal accepted) that Mr Ayache was not unlawfully in Australia during this period.

26    It is common ground between the parties that the Tribunal found Mr Ayache was an unlawful non-citizen in Australia for two separate periods, and that the Tribunal’s finding relating to the second period (between 3 and 28 May 2012) is erroneous. Mr Ayache held a bridging visa throughout the period from 2 May 2012 (when the delegate refused to grant him a Partner visa) to 26 September 2016 (when the delegate cancelled his bridging visa). It is common ground there was no evidence before the Tribunal to support its finding that Mr Ayache was unlawfully in Australia for the second period.

27    The application centrally relates to this finding and it is appropriate to set out in full the relevant paragraphs from the Tribunal’s decision. At paragraphs 41 to 44 the Tribunal said:

[41]    I am mindful that Mr Ayache has not had an opportunity to undertake the drug and alcohol rehabilitation course as directed by Judge Quin as part of the Community Corrections Order. That order was to have come into force on Mr Ayache’s release from prison on parole but he was, instead and as is usual in these cases, taken straight into immigration detention. Mr Ayache asks that he have a second chance to show that he can change his behaviour. His successfully completing the requirements of the Community Corrections Order over a two year period would have gone some way to demonstrating this.

[42]    The dilemma that I have is that Mr Ayache has been given his “second chance” on more than one occasion already. He was given it in 2011 and 2013 and twice in 2014 by the criminal courts before being sentenced to a term of imprisonment. He has also been given opportunities to address his status as a resident in Australia on more than one occasion. Although he entered Australia and remained lawfully until 31 May 2008, he did nothing about applying for a Partner visa so that he could remain after that date. By doing nothing, he was present in Australia as an unlawful non-citizen from 1 June 2008 until 7 May 2009 when he applied for a Partner visa and was granted a Temporary Partner visa. Again he did nothing and failed to provide the Department with the information it needed about his ongoing relationship with his wife. As a consequence, he was again present in Australia as an unlawful non-citizen. He became a lawful non-citizen when a delegate of the Minister granted him a bridging visa after he had lodged his application to the MRT and waited for its decision. The MRT ultimately accepted that he had satisfied the criteria regarding his relationship with his wife and remitted the matter to the Department to make a decision regarding other criteria relevant to the granting of a Partner visa. Mr Ayache remained on a bridging visa until it was cancelled as a result of his imprisonment.

[43]    Perhaps Mr Ayache’s visa history could be put down to oversight but it is difficult to see how something as important as a visa can be overlooked in that way. It was essential to his being allowed to remain in Australia. His evidence at the hearing indicated that he knew the significance of visas. He knew that he came to Australia on a Prospective Marriage (Temporary) (Class TO) visa and was clearly concerned that he and his wife had married in Lebanon under Sharia law before his arrival. His concern was apparent in his initially describing events in Lebanon as an engagement or as a ceremony. His marriage under Sharia law and then under Australian law was of no consequence one way or the other but this attempt to avoid calling his marriage under Sharia law a marriage suggests some willingness to alter events to suit the way in which he wishes to present himself.

[44]    What Mr Ayache’s history in Australia reveals is a willingness to behave as he wishes. In saying that, I do not underestimate the enormous difficulties that people face in coming to Australia without English. That often makes it difficult for them to find employment or employment of their choice or even equivalent to the employment they undertook before they came to Australia. Mr Ayache could find employment of a broadly similar type to that he had undertaken in Lebanon but he was hampered by his lack of English. I have no evidence that he tried to improve his English language skills. Instead, he turned to alcohol, which has upset his wife, and to the use of drugs, about which she was unaware. He has become involved in criminal behaviour that has moved beyond his committing acts that are breaches of the law to acts that are committed in concert with others and that are breaches of the criminal law. Given the past patterns of his behaviour and in light of Dr Cunningham’s report and Judge Quin’s remarks, the risk that he will continue to behave in this way if he were permitted to remain in Australia is, I find, moderate as found by the Corrections Office.

(Emphasis added.)

28    The Tribunal’s decision shows that it gave detailed attention to the various considerations required by Direction 65, and to Mr Ayache’s submissions. The Tribunal concluded (at paragraph 85) that it was appropriate to affirm the delegate’s decision to refuse Mr Ayache’s application for a Partner visa. At paragraphs 85 to 87 the Tribunal said:

(a)    that Mr Ayache faced difficulties in coming to Australia and found himself despondent and unable to cope and under pressure from his financial obligations. He chose to address those problems through drug taking. He was given warnings about his criminal conduct through non-custodial sentences (until he was imprisoned in February 2017) which warnings he had ignored;

(b)    that while it may be that his children’s interests are best served by remaining in Australia with both their parents, the Australian community is not best served by Mr Ayache remaining here;

(c)    Mr Ayache has not demonstrated a willingness to curb his behaviour to the extent necessary to comply with Australia’s laws and the potential for harm from his actions has risen as the nature of his offending has become more serious; and

(d)    the seriousness of Mr Ayache’s actions and the potential for harm now outweighs the interests of his family. Although it will be hard for his family the interests of the Australian community lie in Mr Ayache’s not being permitted to remain in Australia. Whether his wife and children continue to live in Australia without him or live in Lebanon with him will be a decision for the family to make.

The application to the Court

Ground 1

29    Ground 1 of the originating application is as follows:

The Tribunal’s finding that the Applicant became an unlawful non-citizen when a delegate of the Minister refused to grant him a permanent partner visa (on 2 May [2012]) was not open to it on the evidence before it, was not supported by any evidence, and being a finding material to its ultimate exercise of discretion, means that the Tribunal’s decision is affected by jurisdictional error.

30    Mr Ayache challenges the Tribunal’s finding that he was unlawfully in Australia from 2 May 2012, when his Partner visa application was refused, until he lodged an application for review in the MRT on 28 May 2012 (the Second Unlawfulness Finding). He says that the finding was not open or supported by any evidence, and argues that was an illogical or irrational finding of fact which was relied on by the Tribunal in reaching its ultimate conclusion about the risk that he would reoffend. He contends that the Second Unlawfulness Finding was important to the Tribunal’s reasoning because it was both a finding that there was a risk he may fail to adhere to immigration laws in the future and an adverse tendency finding with implications for his adherence to the criminal law (“a willingness to behave as he wishes”). He contends that the Tribunal relied on this finding in reaching its ultimate conclusion and this constitutes jurisdictional error.

The Minister’s submissions

31    The Minister concedes that the Tribunal was incorrect in making the Second Unlawfulness Finding, that is, finding that Mr Ayache was unlawfully in Australia for 26 days in May 2012. The Minister submits however that the Tribunal’s error does not constitute jurisdictional error.

32    The Minister argues, first, that the finding was a mere error of fact and says that that while an erroneous finding of fact may in some circumstances constitute jurisdictional error, for the most part wrong findings of fact will not constitute an error of law, let alone one going to jurisdiction. The Minister relies on the decision in Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 (SZNPG) at [28] (North and Lander JJ ) where their Honours said (although in a different context):

…an error of fact based on a misunderstanding of evidence or even overlooking an item of evidence in considering an applicant’s claims is not jurisdictional error, so long as the error, whichever it be, does not mean that the RRT has not considered the applicant’s claim.

(Citations omitted)

33    The Minister also relies on Sidhu v Minister for Immigration and Border Protection [2017] FCA 889 (Sidhu) at [25]-[26], where Derrington J said:

It must be kept steadily in mind that there is an important distinction between an error of fact within jurisdiction which is not reviewable on appeal, and an error of fact which will amount to a jurisdictional error (Minister for Immigration and Border Protection v Singh [2016] FCA 575 at [52]). In ascertaining whether the Tribunal’s decision fell into jurisdictional error, it is not for the Court to re-examine the merits of the exercise of the discretion to cancel the appellant’s visa…

The authorities are patently clear that an appellant wishing to disturb a Tribunal’s decision must identify something more than a merely erroneous finding of fact. The proper enquiry for this Court in reviewing the decision of the Tribunal, is whether the Tribunal has failed to perform the statutory task imposed upon it by the relevant provisions of the Act (Minister for Immigration and Border Protection v MZYTS and Another (2013) 230 FCR 431 at 442, [31]).

34    The Minister says that at paragraphs 39 to 44 of its decision the Tribunal considered the mandatory consideration of the “Risk to the Australian community should Mr Ayache commit further offences or engage in serious conduct”. He submits that the Tribunal focused on the risk of Mr Ayache reoffending as associated with his criminal offending, noted that he had not yet participated in a drug and alcohol rehabilitation program as directed, and while he had asked for a “second chance” he had been provided numerous second chances. The Tribunal noted that Mr Ayache had been given second chances associated with his criminal conduct on four occasions by criminal courts, and second chances on two occasions to “address his status as a resident in Australia”.

35    The Minister contends that the Tribunal’s primary finding – that Mr Ayache had been given a number of chances to change his behaviour and had not done so – remained correct notwithstanding the error in the Second Unlawfulness Finding. The Minister argues that, in light of the fact that Mr Ayache was an unlawful non-citizen for a period of 11 months between 1 June 2008 and 7 May 2009, there remained a basis for the Tribunal’s conclusions about the applicant’s attitude towards holding a visa and his willingness to behave as he wishes. In any event, the Minister argues that the Tribunal’s focus remained on Mr Ayache’s criminal offending rather than on whether he had a visa such that he was lawfully residing in Australia.

36    The Minister submits that the error in the Second Unlawfulness Finding does not constitute an error of law or undermine the Tribunal’s statutory task. On the Minister’s submissions the Tribunal correctly considered the mandatory consideration of risk to the Australian community if Mr Ayache remained in Australia. It considered his criminal offending, previous assessments of the potential for future risk and his behaviour regarding visa applications, which were all relevant considerations. The Minister argues that the ultimate conclusions of the Tribunal remained valid.

37    Second, the Minister submits that even if the Second Unlawfulness Finding is an error of law, it does not give rise to jurisdictional error because it is not material to the Tribunal’s decision. The Minister relies on the decision in Hossain v Minister for Immigration and Border Protection [2018] HCA 34 (Hossain) at [25] and [30] (Kiefel CJ, Gageler and Keane JJ). The plurality said at [25] that “jurisdictional error is the expression not simply of the existence of error but of the gravity of that error”. Their Honours went on to state (at [30]) that:

Whilst a statute on its proper construction might set a higher or lower threshold of materiality, the threshold of materiality would not ordinarily be met in the event of a failure to comply with a condition if complying with the condition could have made no difference to the decision that was made in the circumstances in which that decision was made. The threshold would not ordinarily be met, for example, where a failure to afford procedural fairness did not deprive the person who was denied an opportunity to be heard of “the possibility of a successful outcome”, or where a decision-maker failed to take into account a mandatory consideration which in all the circumstances was “so insignificant that the failure to take it into account could not have materially affected” the decision that was made.

38    In oral submissions the Minister developed the argument in reliance on Hossain, to the effect that the Tribunal’s findings about Mr Ayache’s criminal conduct provide an independent and standalone basis for its decision. In Hossain the visa applicant was required to satisfy two essential criteria in the Migration Regulations 1994 (Cth): (1) to submit an application within 28 days of ceasing to hold a previous visa, unless the Minister was ‘satisfied that there are compelling reasons for not applying’ that requirement; and (2) that he did not have outstanding debts to the Commonwealth, unless the Minister was satisfied that appropriate arrangements have been made for payment. The Tribunal concluded that neither of these requirements was satisfied and refused to grant the applicant a visa. The High Court accepted that the Tribunal had erred in its finding with respect to the first criterion, but considered its finding as to the second criterion was correct. The plurality concluded that since failure to meet either of these criteria meant that the applicant was not entitled to a visa, and the Tribunal had correctly found that the second criterion was not satisfied, the error was immaterial in the sense that it could not have deprived the applicant of the possibility of a successful outcome, and was therefore not jurisdictional.

39    In reliance on Hossain counsel for the Minister submitted that in the present case the “particular erroneous finding can be stripped out of the reasoning, essentially, and the reasoning can – is still valid even taking away that erroneous finding of fact in the context of paragraphs 40 through to 44 [of the Tribunal’s decision] in total”.

40    In the Minister’s submission there is no basis for an argument that the Second Unlawfulness Finding was of sufficient gravity or materiality in the Tribunal’s reasoning and final decision so as to constitute jurisdictional error. In summary the Minister argues this is so for the following reasons:

(a)    the period of time relevant to the Second Unlawfulness Finding was 26 days, which is insignificant in comparison to the first period of 11 months when Mr Ayache was unlawfully in Australia;

(b)    the Tribunal’s consideration of Mr Ayache’s visa status over the period of his time in Australia, and its conclusions regarding his “doing nothing” on two occasions to “address his status as a resident in Australia”, remained valid. The Tribunal was correct in stating that Mr Ayache was an unlawful non-citizen for the first period, and its conclusion in paragraph 42 regarding his “doing nothing” on two occasions to address his visa status remained valid because it was true that he did not provide the Department with information about his marital relationship.

In this regard the Minister seeks to draw a distinction between the Tribunal’s findings as to Mr Ayache’s behaviour (“doing nothing”) which remained valid, and the Tribunal’s findings as to the consequence of this behaviour (being unlawfully in Australia). He argues that the consequences of the Second Unlawfulness Finding are contained in the following two sentences of paragraph 42 of the Tribunal’s decision:

As a consequence, he was again present in Australia as an unlawful non-citizen. He became a lawful non-citizen when a delegate of the Minister granted him a bridging visa after he had lodged his application to the MRT and waited for its decision.

The Minister argues that only the alleged consequence that Mr Ayache was unlawfully in Australia in the second period can be said to be erroneous;

(c)    the Tribunal’s focus throughout its decision and in considering the risk to the Australian community was on Mr Ayache’s criminal offending. The Minister argues that the focus of the Tribunal’s risk assessment was the finding that the risk of Mr Ayache reoffending is moderate, as found by the Corrections Office. The Minister noted several examples in relevant paragraphs of the Tribunal’s decision where it specifically referred to his criminal rather than migration history. In its conclusion the Tribunal did not explicitly mention Mr Ayache’s visa history and rather summarised that the seriousness of Mr Ayache’s actions and the potential for harm now outweighs the interests of his family; and

(d)    the Tribunal expressly declined (at paragraph 76) to express a view about Mr Ayache’s failure to apply for a visa in a timely way because it had come to the view that the Australian community would not tolerate “the suite of criminal offences” he committed between 2011 and 2015, which escalated in seriousness and in the risk of harm they presented to members of the community.

41    For these reasons the Minister says the applicant was not deprived of an opportunity of a successful outcome because the error made no difference to the outcome. The Minister argues that the factual error is “so insignificant, in both its terms and its consideration by the Tribunal, that it could not be said to constitute jurisdictional error”.

Consideration

42    It is established that illogical reasoning or irrational findings by a decision-maker on the way to a final conclusion may establish jurisdictional error: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 at [132]; Minister for Immigration and Border Protection v SZUXN [2016] FCA 516 (SZUXN) at [54]; Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317 at [151]-[153]. In ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109; [2016] FCAFC 174 (ARG15) the Full Court said at [47]:

Illogicality or irrationality in that extreme sense may be considered not only in relation to the end result, but also extends to fact finding which leads to the end result…

The Full Court went on to say (at [96]) that there was no probative evidence to support an intermediate factual finding that the tribunal had made, which finding was then deployed by the tribunal in making its decision to refuse to grant a visa. The Court held this amounted to jurisdictional error.

43    Of course, if an erroneous finding of fact is immaterial to the ultimate decision because, for example, an independent or parallel reason is given for making the ultimate decision, then the erroneous factual finding will generally not justify a conclusion of jurisdictional error. In SZUXN Wigney J said at [55], and I respectfully agree:

…The overarching question is whether the Tribunal’s decision was affected by jurisdictional error. Even if an aspect of reasoning, or a particular finding, is shown to be irrational or illogical, jurisdictional error will generally not be established if that reasoning or finding of fact was immaterial, or not critical to, the ultimate conclusion or end result. Where the impugned finding is but one of a number of findings that independently may have led to the Tribunal’s ultimate conclusion, jurisdictional error will generally not be made out.

44    On a fair reading of the Tribunal’s decision I do not consider that it is appropriate to characterise the Second Unlawfulness Finding as an immaterial error that does not rise to the level of jurisdictional error. In my view it does.

45    First, the Minister’s submission that the error is a mere error of fact does not take the issue very far. Of course, making a wrong finding of fact does not, of itself, constitute a jurisdictional error and the Court must be cautious to avoid merits review by substituting its view of the facts for that of the decision-maker. In the present case Mr Ayache is not seeking to persuade the Court that a different factual finding should have been made, or that the Tribunal failed to consider particular evidence, but rather that there was simply no evidence for the finding it made.

46    The Minister’s reliance on Sidhu at [25] and SZNPG at [28] is misplaced. What was at issue in Sidhu was whether a particular interpretation of a statement made by the applicant to the decision-maker was open, and the Court concluded at [39] that it was in effect a “reasonably open construction of the appellant’s evidence”. Similarly, in SZNPG North and Lander JJ were dealing with an alleged misunderstanding or overlooking of evidence in an applicant’s claim, not a finding for which there was no evidence whatsoever. Neither decision is on all fours with the present case.

47    Second, while keeping in mind that the Court should not construe the reasons of administrative decision-makers such as the Tribunal minutely “with an eye keenly attuned to the perception of error” (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272) I do not accept the Minister’s submission that the Second Unlawfulness Finding was immaterial or insignificant to the Tribunal’s decision to refuse to grant Mr Ayache a visa.

48    The way in which the Tribunal framed its reasons is significant in assessing whether or not a particular finding is material to its conclusions (ARG15 at [73]; SZOOR v Minister for Immigration and Citizenship (2012) 202 FCR 1; [2012] FCAFC 58 at [102]) and, fairly read, the Tribunal’s reasons suggest that it considered Mr Ayache’s visa history to be important. I have little doubt that the Tribunal’s decision was primarily founded in Mr Ayache’s history of criminal offending, but it is equally clear that Mr Ayache’s visa history was part of the matrix of facts to which the Tribunal had regard in reaching the decision to refuse a visa.

49    The Second Unlawfulness Finding is not in my view a throwaway or unimportant finding, and the Tribunal discussed Mr Ayache’s visa history over three paragraphs. It set out its finding at paragraph 42 and highlighted the importance of his visa history in paragraph 43, stating:

Perhaps Mr Ayache’s visa history could be put down to oversight but it is difficult to see how something as important as a visa can be overlooked in that way.

The Tribunal’s conclusions in paragraph 44 that “Mr Ayache’s history in Australia reveals…a willingness to behave as he wishes”, and regarding his “past patterns of behaviour” implicitly embraced the Tribunal’s erroneous Second Unlawfulness Finding.

50    I accept that the Tribunal decision involved a mix of considerations, and that at other points of its decision the Tribunal referred to the applicant’s criminal history alone, but that is no answer in the circumstances of the present case. Where the decision-maker relies on a cumulative series of adverse findings in coming to an ultimate conclusion and there is no evidence for one of these findings, jurisdictional error may result: ARG15 at [74]. I accept Mr Ayache’s submissions that the Tribunal made findings about his history of criminal offending and his visa history which cumulatively led to its conclusion that his history in Australia revealed a willingness to behave as he wishes. That conclusion was material to its ultimate decision.

51    Third, while the Tribunal’s finding about Mr Ayache’s behaviour in failing to provide the information requested by the Department in a timely way was valid, to the extent that the Tribunal’s reasons in the relevant paragraphs can be split into behaviour and consequence as the Minister contends, the Tribunal’s primary concern in this regard was the consequence that Mr Ayache would be unlawfully living in Australia. It said (at paragraph 43) “… it is difficult to see how something as important as a visa could be overlooked. It was essential to his being allowed to remain in Australia”. The Tribunal was not concerned with the timeliness of information provision for its own sake, it was concerned with Mr Ayache’s apparent disregard for the need to have a visa.

52    Fourth, the Minister’s reliance on Hossain is misplaced. As outlined above, the applicant in Hossain was required to satisfy two mandatory criteria. The Tribunal erred in relation to the first criterion the applicant was required to meet, but no error was demonstrated with respect to the second criterion. This meant that the Tribunal’s error was not material to the ultimate decision in the sense that it could not have deprived the applicant of the possibility of a successful outcome. That is quite different to the present case where the Tribunal’s factual findings are intermingled and the reasons tend to show that the erroneous Second Unlawfulness Finding was material to the ultimate decision to refuse a visa. The Tribunal plainly regarded both Mr Ayache’s criminal and visa history as relevant to its decision to refuse a visa, and the erroneous finding as to his visa history cannot be “stripped out” of the decision to salvage its validity.

53    Fifth, the Minister was correct in noting that the 11-month duration of the first period during which Mr Ayache was unlawfully in Australia is much longer than 26-day period in May 2012 during which the Tribunal mistakenly thought he was again an unlawful non-citizen. But it does not advance the issue far. The contention that the second period is insignificant has some force but the Tribunal’s references to repetition (“[a]gain the applicant did nothing” and “patterns of behaviour”) suggest that it considered repeat occurrences to be at least as significant as the duration of the supposed contravention of migration law.

54    Sixth, while the Minister did not advance this argument, I am satisfied that this is not a case in which it is appropriate to withhold relief on the basis of lack of utility or futility. I respectfully agree with the view taken by Griffiths and Moshinsky JJ in Gill v Minister for Immigration and Border Protection (2017) 250 FCR 309; [2017] FCAFC 51, another case involving a factual finding for which there was no probative evidence. Their Honours cited with approval (at [95]) the following passage from Aronson, Groves and Weeks, Judicial Review of Administrative Action and Government Liability, 6th ed, Law Book Co at [17.150]:

There is in all of these instances a real danger in saying that the ultimate outcome is obvious. Unless the eventual outcome is crystal clear, a consideration of a likely outcome might shade into a consideration of the desirable outcome, which is something that must be left to the primary decision-maker.

55    It is plain that, having regard to Mr Ayache’s history of criminal offending and Direction 65, it will be open to the Tribunal on remittal of this application to conclude that he should not be granted a visa. However, I do not consider that result to be inevitable. In my view the Tribunal’s error deprived Mr Ayache of the possibility of a successful outcome: see Re Refugee Review Tribunal; ex parte Aala (2000) 204 CLR 82 (Aala) at [80] (Gaudron and Gummow JJ).

56    Ground 1 is established.

Ground 3

57    Ground 3 of the originating application is as follows:

Further or alternatively to [Grounds] 1 and 2 the Tribunal denied the Applicant procedural fairness.

Particulars

(a)    The decision of the delegate of the Minister under review by the Tribunal did not suggest that the Applicant became an unlawful non-citizen when the delegate refused to grant him a permanent partner visa (on 2 May [2012]).

(b)    The Minister did not suggest to the Tribunal (or the Applicant) that the Applicant became an unlawful non-citizen at this time.

(c)    During the hearing before the Tribunal on 9 February 2018: (i) the Applicant’s counsel indicated that the Applicant did not become an unlawful non-citizen at this time; and (b) the Tribunal expressly stated that it was not suggesting that the Applicant became an unlawful non-citizen at this time.

(d)    Yet, despite these matters, the Tribunal proceeded to find that the Applicant became an unlawful non-citizen at this time, and relied on that finding as part of a matrix of matters that led it to exercise its discretion to refuse to grant him a partner visa.

58    Under this ground Mr Ayache says that he was denied procedural fairness because the Tribunal expressly informed counsel during in the hearing that it did not consider he became an unlawful non-citizen during the second period, and then made the opposite finding and relied upon it for its decision. An error may be capable of being explained in multiple ways (Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 at [72]; MZZZW v Minister for Immigration and Border Protection (2015) 234 FCR 154; [2015] FCAFC 133 at [30]) and this is simply another way to characterise the error I have found under Ground 1.

59    In light of my decision with respect to Ground 1 it is unnecessary to deal with this ground, but my findings under that ground mean that Ground 3 is also made out.

60    First, there was nothing in the delegate’s decision under review or the Minister’s submissions to put Mr Ayache on notice that the Tribunal may find that he was an unlawful non-citizen for a period in May 2012. As I said at [25] above, the transcript of the Tribunal hearing shows that the Tribunal expressly disclaimed it was suggesting that Mr Ayache was unlawfully in Australia during that period. Nonetheless the Tribunal proceeded to make the Second Unlawfulness Finding and, as I have said, relied on it as part of the matrix of matters underpinning its decision to refuse to grant him a visa.

61    Second, I do not accept the Minister’s submission that, because of the statement by Mr Ayache’s counsel that “he didn’t become unlawful during that period”, Mr Ayache was adequately heard on the matter. The transcript shows that the Tribunal immediately responded that it was “not suggesting that he became unlawful” and the submission was not taken any further. Counsel could have pursued the matter by taking the Tribunal to the visa records that would have definitively proved Mr Ayache was lawfully in Australia in this period, but there was no reason for him to do so in light of the Tribunal’s statement. Counsel was entitled to think the Second Unlawfulness Finding would not be made and the Tribunal’s statement deprived Mr Ayache of a substantive opportunity to be heard on the matter.

62    Third, for the reasons outlined in relation to Ground 1, I consider the Second Unlawfulness Finding was material to the Tribunal’s decision to refuse a visa. I am satisfied there was practical unfairness in the sense that Mr Ayache was deprived of the possibility of a successful outcome: Aala at [80]; Hossain at [30], citing Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326; [2015] HCA 40 at [56].

63    Ground 3 is established.

Grounds 2 and 4

64    In light of my finding on Grounds 1 and 3 it is unnecessary to deal with Grounds 2 and 4.

Conclusion

65    It is appropriate to make orders to set aside the Tribunal’s decision, to remit the application to the Tribunal to be determined according to law, and for the Minister to pay Mr Ayache’s costs.

Associate:

Dated:    7 February 2019