FEDERAL COURT OF AUSTRALIA

PQSM v Minister for Home Affairs [2019] FCA 1540

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The applicant do pay the respondent's costs to be assessed if not agreed.

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

REASONS FOR JUDGMENT

COLVIN J:

1    In May 2017, the applicant's visa was cancelled by a delegate of the Minister pursuant to s 501(3A) of the Migration Act 1958 (Cth). Section 501(3A) provides that the Minister must cancel a visa if the Minister is satisfied that the person does not pass the specified character test because of the person's substantial criminal record or child sex offending. However, s 501CA then requires the Minister to give written notice inviting the person whose visa was cancelled to make representations about revoking the cancellation. If representations are made then the Minister has a power to revoke the decision.

2    The invitation required by s 501CA was extended to the applicant and he made representations about revocation. In December 2018, a delegate of the Minister made a decision not to revoke the cancellation of the applicant's visa. The applicant then sought review of the delegate's decision in the Administrative Appeals Tribunal. Section 500(1)(ba) makes provision for such an application. The Tribunal affirmed the decision of the Minister's delegate.

3    The applicant now brings an application for review of the Tribunal's decision on the basis of alleged jurisdictional error. A statutory appeal from the Tribunal on a question of law is not available in relation to a Tribunal decision on a migration matter: s 43C(c) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). Neither Part 5 nor Part 7 of the Migration Act applies: s 501CA(7). Rather, by operation of s 476A of the Migration Act, the jurisdiction of this Court on the present application is the same as that of 'the High Court under paragraph 75(v) of the Constitution'.

4    The Minister may give written directions about the exercise of the statutory power under s 501(3A) to revoke the cancellation of a visa and has done so by Direction No 79 made on 20 December 2018 (Direction). Section 499(2A) provides that 'a person or body' must comply with such a direction.

5    The applicant claims that there was jurisdictional error in respect of the Tribunal's decision because the Tribunal failed to complete its statutory task in three respects. First, it failed to consider the effect of not revoking the cancellation of his visa on his partner and two adult children when the Tribunal was required to consider those matters under the Direction. Second, it misconstrued and misapplied para 14.2(1) of the Direction. Third, it overlooked evidence of health issues suffered by the applicant when it was required to consider them by para 14.5(1)(a) of the Direction.

6    The Minister denies that the Tribunal committed the errors as alleged. If any of the alleged errors are found to have occurred then the Minister says there was not a material failure to comply with the Direction and therefore there was no jurisdictional error.

7    For the following reasons, there was a failure by the Tribunal to comply with the Direction as alleged by the first ground, but it was not material. The other alleged errors have not been demonstrated. Therefore, the claims of jurisdictional error have not been made out and the application should be dismissed with costs.

Proper approach to consideration of the Tribunal's reasons

8    The contentions advanced for the applicant invite the Court to conclude from the failure by the Tribunal to refer to particular matters in its reasons that those matters were not considered by the Tribunal as required by the Direction. There is significant jurisprudence concerning the proper approach to be adopted when evaluating whether the reasons of the Tribunal demonstrate that a matter was not considered by the Tribunal. It emphasises the need to have due regard to the nature of the Tribunal's statutory obligation to give reasons when undertaking the evaluation.

9    The precise terms in which a statutory obligation to give reasons is expressed provides a critical framework in considering the legal significance to attach to findings made: Malek Fahd Islamic School Limited v Minister for Education and Training (No 2) [2017] FCA 1377 at [42] (Griffiths J); and Buadromo v Minister for Immigration and Border Protection [2017] FCA 1592 at [30]-[31] (Flick J).

10    Even though a number of the provisions of the AAT Act do not apply to the review by the Tribunal of a decision under s 501 (see s 500(6A) to s 500(6L) of the Migration Act), the decision of the Tribunal is still made under s 43 of the AAT Act, as is recognised by the terms of s 500(6G) of the Migration Act. Therefore, the Tribunal must still comply with the requirements of s 43 to give written reasons that 'include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based': s 43(2B). Similar language is to be found in s 368 and s 430 concerning the provision of reasons by the Tribunal when conducting a review under Part 5 or Part 7 of the Migration Act. Therefore, authorities concerned with consideration of reasons provided as required by these provisions address the same issues. The position is different in respect of the initial decision not to revoke. Section 501G(1)(e) provides that if a decision is made under s 501CA not to revoke the cancellation of a visa then the Minister must give the person a written notice that sets out the reasons for the decision. Section 501G(1)(e) does not state an obligation to record in the reasons findings on material questions of fact and references to the evidence or material on which those findings were based.

11    Reasons provided pursuant to s 43 are to be understood in light of the statutory requirements as to what must be included in the reasons. In particular, there is no requirement that the reasons address every question of fact that a Court on review might regard as material. So, a Court may infer that a matter that was not mentioned in the reasons was not considered by the Tribunal to be material (rather than as a basis to infer that the matter was not considered at all). These propositions are evident from the reasoning in Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [5]-[10] (Gleeson CJ), [69] (McHugh, Gummow and Hayne JJ).

12    Considered in the statutory context, the authenticated reasons of the Tribunal are evidence of the findings actually made, referred to and relied upon by the Tribunal in coming to its decision and that no finding, evidence or reason which was of any significance to the decision has been omitted: Minister for Immigration, Local Government and Ethnic Affairs v Taveli [1990] FCA 169; (1990) 23 FCR 162 at 179 (French J) and to similar effect at 168 (Davies J).

13    However, there remains the prospect that the failure to refer to a matter may reflect a failure by the Tribunal to consider the matter at all. So, in Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; (2013) 230 FCR 431 at [62], Kenny, Griffiths and Mortimer JJ observed that the Tribunal's reasons disclosed 'no consciousness, nor any consideration, of what were submitted to be increasing incidents of political violence directed not at high-profile people but at "ordinary" … supporters or members' of a particular group. The Court then reasoned as follows:

The absence of these matters from the reasons, combined with the centrality of them to the visa applicant's claimed fear of persecution as clearly articulated to the Tribunal before, during and after the hearing, allow us comfortably to infer that the Tribunal did not consider these matters, or consider these matters material to the task of asking whether or not the visa applicant had a well-founded fear of persecution. For the Tribunal to form the latter view reveals a misunderstanding of its statutory task on review at the most fundamental level.

14    The approach in MZYTS has been applied in other cases in finding jurisdictional error: see, for example, Minister for Home Affairs v Ogawa [2019] FCAFC 98 at [118]-[119] (Davies, Rangiah and Steward JJ); Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16 at [34] (Katzmann, Griffiths and Wigney JJ); and ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174; (2016) 250 FCR 109 at [66]-[76] (Griffiths, Perry and Bromwich JJ).

15    In the influential decision in Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593, the Court (French, Sackville and Hely JJ) put the matter in the following way at [46]-[47] in the context of a case concerned with an application for a protection visa:

It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [87]-[97]) and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The Tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised 'with an eye keenly attuned to error'. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.

The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.

16    The position was summarised by Bell, Keane and Gordon JJ in ETA067 v The Republic of Nauru [2018] HCA 46 at [13]-[14] in the following way (citations omitted):

The absence of an express reference to evidence in a tribunal's reasons does not necessarily mean that the evidence (or an issue raised by it) was not considered by that tribunal. That is especially so when regard is had to the content of the obligation to give reasons, which, here, included referring to the findings on any 'material questions of fact' and setting out the evidence on which the findings are based. There was no obligation on the Tribunal to refer in its reasons to every piece of evidence presented to it.

Further, there is a distinction between an omission indicating that a tribunal did not consider evidence (or an issue raised by it) to be material to an applicant's claims, and an omission indicating that a tribunal failed to consider a matter that is material: including one that is an essential integer to an applicant's claim or that would be dispositive of the review.

17    Finally, in some instances, the content of the reasons may reveal a failure to consider a matter. So, where there is an express but erroneous finding in the reasons to the effect that there was no evidence of a particular matter, the finding may reveal error by the Tribunal in failing to consider a particular matter (on the mistaken basis that there was no evidence): see BUD17 v Minister for Home Affairs [2018] FCAFC 140; (2018) 264 FCR 134 at [66] (Robertson, Steward and Thawley JJ).

The role of the Direction

18    By s 499(2A), the Migration Act provides that a body (such as the Tribunal) must comply with a direction under s 499(1) in the performance of functions and the exercise of powers under the Act. The Direction was made under s 499. It specifies factors that must be considered in making a revocation decision (paras 6.2(3) and 7(1)b)). The Direction then provides that decision-makers 'must take into account the primary and other considerations relevant to the individual case' (para 8(1)). Further, it provides that '[p]rimary considerations should generally be given greater weight than the other considerations' (para 8(4)).

19    The grounds of review focus upon 'other considerations' specified in the Direction. Paragraph 14 of the Direction specifies other considerations that 'must be taken into account where relevant'. They include '[s]trength, nature and duration of ties' and '[e]xtent of impediments if removed'. Then para 14.2(1) provides:

Strength, nature and duration of ties

(1)    The strength, nature and duration of ties to Australia. Reflecting the principles at 6.3, decision-makers must have regard to:

a)    How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:

i.    less weight should be given where the non-citizen began offending soon after arriving in Australia; and

ii.    More weight should be given to time the non-citizen has spent contributing positively to the Australian community.

b)    The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non-citizen's immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).

20    Paragraph 14.5(1) then provides:

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.

21    Notably, these 'other considerations' must be taken into account, but only where relevant. The Direction assumes that the power under s 501CA(4) is being exercised in circumstances where other procedural processes preliminary to the making of a decision in the exercise of that power have been followed by the decision-maker. In the case of the Tribunal, that will include a hearing at which material may be presented and submissions made. The Direction provides guidance as to the deliberative process to be followed in evaluating what is before the decision-maker. The procedural process by which material may be placed before the decision-maker for the purposes of the exercise of the power conferred by s 501CA is not addressed by the Direction. It assumes that any process that must be undertaken has been followed and it imposes no direction as to the manner in which that process is to be undertaken.

22    The case for the applicant proceeded from the unstated premise that a failure to comply with a requirement of the Direction would mean that the Tribunal had failed to undertake its statutory task under s 501CA(4). A failure to comply with a ministerial direction made under s 499 has been held to amount to jurisdictional error: see the analysis by Mortimer J in Williams v Minister for Immigration and Border Protection [2014] FCA 674; (2014) 226 FCR 112, particularly at [34]-[35]; and the authorities referred to by Burley J in VKTT v Minister for Home Affairs [2019] FCA 1018 at [19]. The Direction does not offer mere guidance or a statement of policy that may be departed from if the circumstances justify departure: see Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 at [42]. The Direction imposes requirements that must be given effect in order for there to be a valid decision made under s 501CA(4).

23    However, these cases must be viewed in the context of the decision by the High Court in Minister for Immigration and Border Protection v SZMTA [2019] HCA 3. In SZMTA the majority (Bell, Gageler and Keane JJ) held that a breach of a statutory provision which conditioned the performance of the overarching duty of the Tribunal to conduct a review only operated to deny legal force to the decision of the Tribunal if that breach was material: at [44]. Without materiality there was no jurisdictional error: at [45]. A breach was only material if there was a realistic possibility that compliance could have resulted in a different decision: at [45], [49]. Whether there was such a realistic possibility was a matter to be adjudged on the evidence on the application.

24    To determine whether there was a material breach of the requirement that conditioned the valid exercise of power, it was necessary to consider how the Tribunal in fact acted: at [50]. For present purposes, the requirement is compliance with the Direction. Keeping in mind that the Court should not intrude into the exercise of the statutory function entrusted to the Tribunal, if the Court was to conclude on the evidence that a failure to comply with the Direction was of 'such marginal significance to the issues which arose in the review that the Tribunal's failure to take it into account could not realistically have affected the result' then there was no jurisdictional error: at [48].

25    In short, only a material failure by the Tribunal to comply with the Direction in making its decision could amount to jurisdictional error.

26    The issue of materiality raises a question of fact in respect of which the applicant bears the onus of proof: SZMTA at [46]; Khalil v Minister for Home Affairs [2019] FCAFC 151 at [49]; and Tsvetnenko v United States of America [2019] FCAFC 74 at [93]. The question of whether a breach is material is a matter that may be inferred from the evidence including the decision-making process: Khalil at [49]; CQR17 v Minister for Immigration and Border Protection [2019] FCAFC 61 at [50] (Jagot J), [128] (Derrington J); and Nguyen v Minister for Home Affairs [2019] FCAFC 128 at [53]-[54]. Where the error concerns a matter that was not considered, the reasoning process of the decision-maker may be evaluated in forming a view as to whether there was a realistic possibility that the matter, if considered, may have resulted in a successful outcome: Ogawa at [120]-[127] (Davies, Rangiah and Steward JJ); and Khalil at [52]-[55].

27    The factual inquiry is into whether the relevant error by the decision-maker was material in the sense that it denied the applicant a possibility of a successful outcome, or could realistically have resulted in a different decision: Ogawa at [120] (Davies, Rangiah and Steward JJ). This inquiry has been variously expressed (by reference to the language used in SZMTA) as being whether the breach 'deprived the appellant of the realistic possibility of a successful outcome' (CGA15 v Minister for Home Affairs [2019] FCAFC 46 at [59]), or just the 'possibility of a successful outcome' (BYA17 v Minister for Immigration and Border Protection [2019] FCAFC 44 at [60]), or whether compliance 'could realistically have resulted in a different decision' (Khalil at [49]; Nguyen at [52]) or 'could have changed the result' (CQR17 at [43] (Jagot J)).

28    In Minister for Immigration and Border Protection v CPA16 [2019] FCAFC 40 it was found that the primary judge had not gone far enough in assessing the materiality of the error (albeit in circumstances where the primary judge's decision was made prior to SZMTA) and the relevant process was described as follows (at [33], original emphasis):

… the relevant test does not require an assessment of the likelihood of the omitted review material affecting the decision. The test is whether the omitted review material could realistically have resulted in the decision-maker making a different decision: i.e., whether the visa applicant has been deprived of the realistic possibility of a successful outcome.

The Tribunal's consideration of the exercise of the revocation power under s 501CA(4)

29    When making its decision, the Tribunal was standing in the shoes of the delegate of the Minister and exercising the power to revoke the visa cancellation conferred by s 501CA(4). The power to revoke is conditioned upon two matters. First, the making of representations in accordance with an invitation made under s 501CA(3). Second, the satisfaction of the Minister (that is, in the present case, the Tribunal standing in the shoes of the Minister's delegate) that the person passes the character test or 'there is another reason why the original decision should be revoked'. There being no issue in the present case that the applicant does not pass the character test, the requirement to be met in this case is that the Tribunal is satisfied that there is another reason why the decision should be revoked.

30    Importantly, s 501CA(3) requires the Minister, after a decision is made under s 501(3A) to cancel a visa, to invite the visa applicant to make 'representations to the Minister' about revocation of the original decision. It is only if representations are made that the power to revoke is conferred by s 501CA(4). However, if representations are made there is then a statutory obligation to consider whether to exercise the power to revoke. Further, as representations must be invited and the making of representations conditions the power to revoke, there is a statutory obligation to consider the power to revoke by reference to the material presented in the representations: see Viane v Minister for Immigration and Border Protection [2018] FCAFC 116; (2018) 263 FCR 531 at [64]-[68] (Colvin J, Reeves J generally agreeing at [3]).

31    In those instances where a decision not to revoke is the subject of an application for review in the Tribunal, the provisions of the AAT Act are modified by the terms of s 500(6A) to s 500(6L). Even so, those provisions contemplate an oral hearing at which the applicant for review may present further documents. Therefore, the matters before the Tribunal are not confined to the representations to the Minister. Further, the inquisitorial nature of the Tribunal's role remains and matters relevant to its decision making are not confined to those matters raised by the applicant for review in material presented to the Tribunal. So, if one of the matters specified in the Direction was relevant in the particular circumstances of the case then the Tribunal was required to take that matter into account '[w]hether or not the [applicant] sought to make [it] a positive aspect of his case': Uelese v Minister for Immigration and Border Protection [2015] HCA 15; (2015) 256 CLR 203 at [64] (French CJ, Kiefel, Bell and Keane JJ).

32    It was not suggested for the applicant that there was some obvious inquiry that could have been readily made that should have been undertaken by the Tribunal, but was not. Nor did the submissions advanced for the applicant venture into the question of the extent to which a failure to specifically address a particular matter raised in the representations would amount to jurisdictional error: as to which, see Viane at [2] (Reeves J), [30] (Rangiah J), [75] (Colvin J); Navoto v Minister for Home Affairs [2019] FCAFC 135 at [85] (Middleton, Moshinsky and Anderson JJ); and Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216 at [31]-[45] (Rares and Robertson JJ), [62]-[69] (Flick J). Cases of that kind are concerned with the extent of the obligation of the decision-maker (whether it be the Minister, a delegate of the Minister or the Tribunal) to consider particular matters raised by the party whose visa has been revoked.

33    Rather, the submission advanced for the applicant was simply to the effect that there were relevant matters that should have been considered, but were not. It was an argument that was not dependent upon whether the applicant had raised the issue. So, it was not necessary for the applicant to be able to point to a submission or contention made by him (whether in the initial representations or before the Tribunal) in order for the Tribunal to be obliged to consider a relevant matter that was raised by the material before the Tribunal. Put another way, relevance was not a matter to be determined by the arguments or contentions advanced for the applicant. Instead, the jurisdictional error was said to arise because of a failure by the Tribunal to consider a relevant matter that the terms of the Direction required the Tribunal to consider.

34    It has been held that relevance for the purposes of a direction made under s 499 as to the exercise of the power to revoke the cancellation of a visa is a matter that is to be determined by the Tribunal: Nigam v Minister for Immigration and Border Protection [2017] FCA 106 at [16]-[17] (Perry J) (a decision upheld on appeal, where the finding that it was for the Tribunal to determine relevance was not specifically challenged: Nigam v Minister for Immigration and Border Protection [2017] FCAFC 127; (2017) 254 FCR 295 (Siopis, Griffiths and Charlesworth JJ)).

35    This is a significant aspect of the legal context in which to consider whether there was a failure to conform to the requirements of the Direction. It may be that the failure to refer to a particular matter in the reasons of the Tribunal reflects an evaluation by the Tribunal that the particular matter is of no real significance (and therefore of no material relevance) in the circumstances of the particular case. Just because there was material before the Tribunal on a topic that was identified in the Direction that must be taken into account as a consideration 'where relevant' did not mean that it was a topic that had to be brought to account in the formation of the Tribunal's decision whether to revoke the original cancellation of the visa. The Tribunal could form the view that the material on that topic was not relevant in any real sense in which case it would not be a matter to be included in the Tribunal's reasons.

36    Further, the obligation to provide reasons was an obligation to express matters that activated the exercise of the discretion whether to exercise the power to revoke. So, the failure to refer to a matter in the reasons was not necessarily an indication that it was not considered, but may reflect the fact that the particular matter, though considered, was not a matter activating the exercise of the discretion whether to revoke when the Tribunal made its decision: AYX17 v Minister for Immigration and Border Protection [2018] FCAFC 103; (2018) 262 FCR 317 at [61] (Tracey and Mortimer JJ). The Tribunal may have considered the matter, but found it not to be material and for that reason did not refer to the matter in its reasons: SZSRS at [34] (Katzmann, Griffiths and Wigney JJ).

37    Nevertheless, the way the issue was joined between the parties, the question that arises in the present case is whether the Tribunal considered the matters said to be relevant, not whether the particular matters were relevant for the purposes of the Direction. For the Minister, it was submitted that it could not be concluded from the Tribunal's reasons that it had failed to take account of the matters identified in the grounds of review (being the effect on the applicant's partner and two adult children and the applicant's health issues). In order for the applicant to succeed, the Court must be persuaded that it may be inferred from any failure to refer to particular matters in the Tribunal's reasons that the Tribunal did not perform what was required by the Direction. To draw that inference, the Court must be satisfied that the absence of any reference to the particular matters was not the consequence of the Tribunal's assessment that such matters were not relevant or, though relevant, were not matters considered to be material to its decision.

Ground 1: Alleged failure to consider effect on applicant's partner and adult children

38    Ground 1 alleges that the Tribunal failed to consider the effect of not revoking the applicant's visa on his partner and two adult children and thereby failed to undertake the task of considering that relevant matter as required by the Direction.

39    As to the provision in the Direction concerning the strength, nature and duration of ties, the Tribunal at para 100 reproduced para 14.2 of the Direction (set out earlier in these reasons). Then at paras 101 to 104, the Tribunal reasoned as follows:

The Respondent acknowledges that the Applicant has resided in Australia for some 24 years. His partner and four children reside in Australia and that the Applicant's employment history demonstrates some contribution to the Australian community …

The Respondent submits, however, that this limited contribution should be considered against the financial cost to the Australian community in responding to the Applicant's offending through policing, the courts and corrective services.

The Respondent concedes that this consideration may weigh in favour of the revocation of the cancellation of the visa, but, according to the Respondent, that it is outweighed by the primary considerations weighing heavily against the revocation of the cancellation. The Tribunal agrees with the Respondent's assessment that this consideration weighs in favour of the revocation of the cancellation. The Tribunal, however, notes that the Applicant's ties to the Australian community have not always resulted positively for either the community or the Applicant.

The weight that can be given to this consideration is also diminished by the fact that the Applicant started offending in December 1995 very shortly after he arrived as a 19 year old in March 1995 (Direction 79, paragraph 14.2(1)(a)(i)).

40    The submission for the applicant is that there was material before the Tribunal about the applicant's partner (who gave oral evidence at the hearing) and about the applicant's adult children, including letters drafted by them (one of whom gave oral evidence at the hearing). Further, despite the terms of para 14.2(1)(b) of the Direction, the Tribunal did not have regard to the effect on those people of non-revocation. In particular, it was submitted that the Tribunal did not consider the effect of non-revocation on those three members of the applicant's immediate family in Australia.

41    For the Minister it was submitted that there was a concession made by the Minister before the Tribunal that the matters in para 14.2 favour revocation and the reasons of the Tribunal reflect that concession. Further, it was submitted that it was a consideration that was taken into account in express terms. The form of concession was expressed in the Minister's statement of facts, issues and contentions in the following terms (paras 47 to 49):

The respondent acknowledges that the applicant has resided in Australia for some 24 years. His partner, four children and niece and nephew reside in Australia.

The applicant's employment history demonstrates some contribution to the Australian community. However, this limited contribution should be considered against the financial cost to the Australian community in responding to the applicant's offending through policing, the courts and corrective services.

Whilst the Tribunal may accept that this consideration weighs in favour of revocation, the respondent contends that it should be given limited weight and is not sufficiently compelling to outweigh the primary considerations weighing heavily against revocation.

42    In closing submissions to the Tribunal, the Minister stated under the heading 'Strength, nature and duration of ties to Australia' (paras 27 to 29):

The applicant's four children reside in Australia however his ties to [his partner] are vague.

Both the oral evidence of the applicant and [his partner] was that they commenced a relationship in 2009 and lived together since that time (notwithstanding the time the applicant has spent in immigration detention or prison). This is however not consistent with:

28.1    The police summons records … that suggest that he was in a relationship with another woman.

28.2    The oral evidence of the applicant's son that he lived with his father from 2012 to 2015 and that he lived in the house with his father and one other older man.

In the respondent's submission, the applicant's relationship with [his partner] should therefore be given limited weight.

43    Significantly, the closing submissions refer to the applicant's ties with his partner. They deal with the extent of their connection rather than the effect upon the applicant's partner. As to those matters, the applicant relies upon oral evidence given by his partner to the Tribunal that she and the applicant had been together for 14 years and that she suffers from schizophrenia and paranoia.

44    The concession made by the Minister by way of submission to the Tribunal did not refer to, or seek to characterise, the nature of the connection between the applicant and his partner and two adult children or the effect on those people of his removal from Australia. There was no reference in the submissions to the evidence in the form of the letters from his children.

45    On the present application, the Minister did not contend that this was a case where the effects upon the applicant's partner and adult children were not materially relevant or that the Tribunal may have formed that view. Rather, it was conceded that those matters were relevant and needed to be considered. The Minister's submissions were to the effect that the Tribunal's reasons showed that such matters had been considered by the Tribunal. For the following reasons, I do not accept that submission.

46    The Tribunal did refer to the oral evidence before the Tribunal given by the applicant's partner and his adult son (para 30). As I have noted, the Tribunal began its consideration of ties to Australia by quoting para 14.2 of the Direction in full. However, the form in which the subsequent reasons are expressed manifests a focus upon the applicant's ties with Australia. There is no separate express consideration of the effect upon the applicant's partner and his adult children.

47    The terms of para 14.2 state that they reflect the principles stated in para 6.3 of the Direction. Those principles state at para 6.3(7) that the length of time a person has been making a positive contribution to the Australian community and the consequences of a visa refusal or cancellation for minor children and other family members are considerations. Accordingly, they are expressed as distinct considerations. Yet, the reasons do not express them as such nor do they deal in any way with the effect on the applicant's family members.

48    In contrast, the decision under review dealt with such matters expressly under the heading 'Strength, nature and duration of ties' in the following way (paras 54-59):

In coming to my decision about whether or not I am satisfied that there is another reason why the original decision should be, revoked, I have had regard to the strength, nature and duration of [the applicant's] ties to Australia.

[The applicant] has resided in Australia for some 23 years, having arrived as an adult of 20 years. [The applicant's] offending occurred nine months following his arrival and when not incarcerated or in detention, [the applicant] contributed to the community by way of employment. Given that [the applicant] has lived in Australia for half of his life, and that his previous life was one of deprivation as an orphaned child, I have given some weight to this consideration.

[The applicant] has family ties to Australia which includes his adult children … his minor daughters … his partner … and mother in law ... The best interests of [his minor daughters] are discussed above.

[The applicant] submits that he continues to benefit from a close relationship with his adult children … Letters from [his adult children] indicate that despite having difficulties reconciling their father's offending with the values he taught them, they offer their ongoing support. The information before me suggests that while [his adult children] may still look to [the applicant] for moral support, they are functioning adult members of society and are not primarily dependent on their father for their day to day needs. I accept that a permanent separation from their father would result in emotional hardship for them.

I accept that [the applicant] and [his partner] have been in a long term relationship and have a child … and I am cognisant that they have hopes of a shared future together and had plans to marry. I also accept that [his partner] would not relocate, as all of her family reside in Australia and she would not leave them. In his submissions, [the applicant] has alluded to [his partner] having accessed mental health treatment at a residential care facility, where she has remained since early 2017. Although the only letter of support provided by [his partner] indicates that she has a very limited understanding of [the applicant's] current circumstances, I viewed this in context of her current mental health condition. I accept that the prospect of being permanently separated from [the applicant] will cause [his partner] significant emotional hardship and may exacerbate her mental health issues.

I have noted that while [the applicant] has not pursued any formal educational opportunities in Australia, since he was initially granted residency in Australia he has been employed as a bricklayer, supermarket shelf stocker and undertaken various roles within the meat packing industry. On the basis of such paid employment, I find that [the applicant] has been making a positive contribution to the community and I have taken this into account.

49    In all the circumstances, I infer that the Tribunal failed to have regard to the separate consideration of the effect on the applicant's partner and his adult children if the cancellation of his visa was not revoked. Rather, the Tribunal only took account of the extent of the applicant's ties to those people and thereby confined its consideration to the effects upon him.

50    Therefore, it is necessary to consider whether the failure by the Tribunal to take account of the effect on the applicant's partner and his adult children as required by the Direction was a material failure to comply with the Direction. In order to undertake that evaluation, it is necessary to consider what was required by the Direction as well as the overall reasoning by the Tribunal as to why it affirmed the decision not to revoke the cancellation of the applicant's visa.

The requirements of the Direction

51    As noted above, the Direction specified considerations that the Tribunal must take into account. It identified primary considerations that should generally be given greater weight than other considerations. However, those other considerations are not to be taken as always being subservient: Minister for Home Affairs v HSKJ [2018] FCAFC 217 at [35] (Greenwood, McKerracher and Burley JJ).

52    The primary considerations are (a) protection of the Australian community from criminal or other serious conduct; (b) the best interests of minor children; and (c) expectations of the Australian community. These matters are expanded upon in para 13 of the Direction. Then the 'other considerations' are stated in para 14 (including the strength, nature and duration of ties as stated in para 14.2).

53    In its reasons, the Tribunal first dealt with the primary considerations. It set out the applicant's criminal record which was described as 'extensive and serious' involving 51 convictions, including for a number of violent offences (para 37). The documentary record about the offences and the cross-examination of the applicant at the Tribunal hearing was considered in detail (paras 38 to 42). Then, the offending was examined in the context of the Direction (paras 43 to 49). The examination included a reference to the fact that the applicant's visa had been cancelled by reason of his offending in June 2005, but an application to revoke the cancellation had been successful, with the Tribunal on that review noting at the time that if the applicant were to commit another serious offence in the future then the balance of relevant considerations may well shift such that it becomes appropriate to cancel his visa (para 48). The Tribunal noted that the applicant had been convicted of 43 offences since that warning (para 49). It was concluded that the considerations in the Direction concerned with his offending 'weigh very heavily against the revocation of the cancellation of the visa' (para 50).

54    The Tribunal found that the harm that would be caused if he was to repeat his offending was obvious and serious (para 52). It found that there was a very high risk of the applicant re-offending (para 53). It found that a matter of particular concern was that in some basic respects the applicant still fails to understand what he has done in the past is wrong and that his consistent offending demonstrated a disregard for the law (paras 55 to 59). The Tribunal concluded that there was a high likelihood that the applicant would engage in further criminal or other serious conduct if the cancellation of his visa were to be revoked (para 63).

55    The Tribunal then dealt with the interests of minor children (paras 64 to 71). The Tribunal rejected a submission for the Minister that the consideration was neutral. It found that the consideration did weigh in favour of the revocation of the cancellation of the visa but the weight to be given the consideration in comparison with other considerations was 'not significant' (para 72).

56    The Tribunal then dealt with the third primary consideration, namely expectations of the Australian community, and found that in the applicant's case his character concerns or offences were such that the Australian community would expect that he not hold a visa (paras 85 and 86).

57    The Tribunal then dealt with the specified other considerations. It concluded that there was nothing before the Tribunal to establish that Australia owed non-refoulement obligations to the applicant, but even if they did exist the frequency of offending and the violent nature of a number of the offences meant that non-refoulement obligations were outweighed by the seriousness of the applicant's criminal behaviour (para 99). No issue was taken by the applicant with this form of reasoning.

58    Then the Tribunal dealt with the strength, nature and duration of ties in the manner set out above. It found that there was no evidence as to impact on Australian business or on victims. It then dealt with impediments on re-establishment in the applicants home country of Mozambique if the applicant was removed and concluded that there would potentially be significant impediments for the applicant in establishing himself if removed from Australia and this was a consideration that weighed in favour of revocation (para 112).

59    As to the balancing of the considerations, the Tribunal considered the applicable legal authorities and then concluded (at paras 122 to 126) as follows:

The Applicant does not pass the character test. That is not disputed. The sole issue is whether, guided by Direction 79, there is another reason why the mandatory cancellation of the visa under s 501(3A) should be revoked

The first primary consideration under Direction 79, the protection of the Australian community from criminal or other serious conduct, for the reasons set out above, weighs heavily against the cancellation of the visa being revoked. The seriousness of the Applicant's offending and the sheer number and nature of the Applicant's repeat offending, including a number of offences involving violence, indicate to the Tribunal that there is a very high likelihood of the Applicant committing further serious offences if he were allowed to stay in Australia.

The other primary consideration that weighs against the revocation of the cancellation of the visa is the expectations of the Australian community. Given the nature of the very serious crime with which the Applicant was convicted, the sexual penetration of a 14 year old girl without her consent, and the number of offences committed by the Applicant after his release from prison, knowing that any re-offending could cause cancellation of his visa, the Tribunal accepts that the expectation of the Australian community is that the Applicant's visa remain cancelled. The Tribunal places significant weight on this consideration.

The remaining primary consideration, the best interests of minor children in Australia, weighs marginally in favour of the revocation of the cancellation of the visa. The weight to be given to this consideration is, however, not significant for the reasons set out above. In particular the fact that the child to which this consideration is most relevant, the Applicant's four year old daughter, is in the care of her grandparents who, on the evidence of the Applicant and his partner, are providing good care and an environment for the child's future which is likely to be better than the Applicant and his partner could offer the child. This is evidenced by the fact that the child was put into her grandparents' care even before the Applicant was taken into detention.

The other applicable considerations identified in Direction 79, namely non-refoulement obligations, strength, nature and duration of ties and the extent of impediments that the Applicant will face if removed, weigh in favour of the revocation of the cancellation of the visa. These considerations, however, are outweighed by the considerations of the protection of the Australian community and the expectations of the Australian community. In these circumstances the Tribunal is of the view that there is no other reason why the cancellation of the visa under s 501(3A) should be revoked.

60    The Tribunal's reasons provide no indication that matters were finely balanced. On the contrary, protection of the Australian community weighed heavily against revocation. Further, the circumstances of the applicant's offending (even after a previous cancellation of his visa being revoked) and the high likelihood that he would commit further serious offences weighed significantly against revoking the cancellation of his visa. The connections that the applicant had with minor children and other family members were not sufficient to outweigh those matters. Under the terms of the Direction, these three primary considerations generally were to be given greater weight than the other considerations. There was no indication in the Tribunal's reasons that there were any 'other considerations' that should be given greater weight than the primary considerations or that there was material that might have led the Tribunal to that view (although the possibility was addressed).

61    The evidence of the effect upon the applicant's two adult children and the applicant's partner if he was removed from Australia did not identify any significant financial or other dependence on the applicant. The applicant's offending meant that he had been separated from them for considerable periods. As to the evidence from the applicant's partner that she suffered from schizophrenia and paranoia, there was no reference to any material indicating any role that the applicant played in the applicant's partner managing or dealing with her mental illness. In short, the applicant did not seek to develop any contention based upon the material before the Tribunal as to how that material, if considered, might have led the Tribunal to reach a different conclusion.

62    As I have noted, the issue of materiality is a matter to be approached as an ordinary question of fact in respect of which the applicant bears the onus of proof.

63    Even allowing for the fact that it is a matter for the Tribunal and not this Court to undertake the weighing process, it has not been shown by the applicant that compliance with the requirement to consider the effect of non-revocation on his immediate family could realistically have resulted in a different decision by the Tribunal. Therefore, the failure to have regard to that consideration was not jurisdictional.

64    It is not the case that the Court approaches the question on the basis that the failure to have regard to the particular requirement was a jurisdictional error and then evaluates whether the error was material. Posing the question in those terms tends to invite an inquiry as to whether the matter that was not considered might have been material to the determination to be made by any Tribunal exercising the power. To do so is to ask whether there would be utility in granting relief, which is a different question: see DPI17 v Minister for Home Affairs [2019] FCAFC 43 at [105] (Mortimer J). Rather, the reasoning in SZMTA makes clear that there is no jurisdictional error by the Tribunal in the making of the particular decision unless the failure to conform to the condition by the Tribunal when making its decision was material to the manner in which the Tribunal exercised the power. Significantly, the majority in SZMTA referred to 'the curial determination both of how the Tribunal in fact acted … and whether its decision could realistically have been different if the relevant breach had not occurred' (emphasis added): at [50].

65    As reasoned in Hossain v Minister for Immigration and Border Protection [2018] HCA 34, where a statutory requirement must be met in order for there to be a valid exercise of power then it is to be construed as providing for invalidity only where there is a material breach: at [29]-[30] (Kiefel CJ, Gageler and Keane JJ). Therefore, the inquiry is a backward looking one concerned with whether there has been an invalidating material failure to comply with a condition to the valid exercise of power in the particular case rather than a forward looking inquiry as to whether future compliance with the condition might affect a future decision made by way of fresh exercise of the power by any decision-maker acting within the bounds of reasonableness.

66    Even so, it would appear that some requirements that condition the valid exercise of a statutory power are either met or not and no issue as to whether there was a material failure to comply arises: see, for example, the circumstances considered in Forrest & Forrest Pty Ltd v Wilson [2017] HCA 30; (2017) 262 CLR 510. However, that is not the present case.

67    Having regard to the reasons given for the particular exercise of decision-making power by the Tribunal in this case, the limited nature of the failure to comply with the Direction and the material that would have been considered if there had been compliance, it has not been shown that there has been a material failure to comply with the Direction on the basis of the matters raised by ground 1. It follows that ground 1 should not be upheld.

Ground 2: Alleged misconstruction of para 14.2 of the Direction

68    The applicant claimed that the Tribunal had applied an erroneous interpretation of para 14.2 of the Direction when it concluded that the weight that can be given to the consideration was diminished by the fact that the applicant started offending very soon after he arrived in Australia.

69    Paragraph 14.2(1)(a)(i) says that 'less weight should be given where the non-citizen began offending soon after arriving in Australia'. The contention advanced for the applicant was that these words did not qualify the weight to be given to the strength, duration and nature of family and social links under para 14.2(1)(b). Rather, it qualified only the relevance of the separate (though related consideration) as to how long the person had resided in Australia. In effect, para 14.2(1) required two matters to be considered; (a) how long the person had been in Australia and (b) the strength of ties and effect on immediate family if the visa cancellation was not revoked. If there was offending soon after a person arrived in Australia, it was contended that was a matter that reduced the weight to be given to (a), but not (b).

70    For the purposes of the present application, the Minister accepted that the reference to less weight being given applied only to how long the person had resided in Australia. However, it was submitted for the Minister that the Tribunal's reasons did not indicate that it had given 'less weight' to family and social links by reason of the applicant's offending. It was said that when the Tribunal said that less weight can be given to 'this consideration', it did not mean that the Tribunal was giving less weight to family and social links. Rather, it was giving less weight to the consideration as a whole, because less weight was to be given to the time the applicant had resided in Australia by reason of his offending and that carried through into the overall weight to be afforded the entirety of the 'other consideration' described in para 14.2.

71    For reasons I have given, the reasons of the Tribunal at paras 101 to 104 (quoted above) do not consider the effect upon the applicant's family if the cancellation of his visa was not revoked. Therefore, the reference by the Tribunal to the weight that can be given to the consideration in para 14.2(1) does not involve a discounting of that aspect. Further, there was no express reasoning by the Tribunal in terms that the applicant's family and social links should be discounted by reason of his offending. On the contrary, the Tribunal found that his ties to the Australian community have not always resulted positively and his contribution has been limited and is to be considered in the context of the cost to the Australian community of his offending. Therefore, the main thrust of the Tribunal's reasons was to address the length of time the applicant has been in Australia (some 24 years) and whether his contribution to the community has been positive. These are matters that are properly the subject of the weight adjustment provided for in para 14.2(1)(a).

72    For those reasons, I am not satisfied that the Tribunal's consideration of the matters stated in para 14.2 was guided by an erroneous view as to what was required by that aspect of the Direction. Ground 2 should not be upheld.

Ground 3: Alleged failure to consider the health issues of the applicant

73    The final ground of review concerns the evidence of the applicant's health issues that was before the Tribunal. In support of this ground, the applicant referred to two sets of health notes.

74    The first was a record of a consultation by the applicant with a psychiatrist in November 2017. It noted a diagnosis of '[a]djustment disorder'. The consultation appears to have occurred whilst the applicant was imprisoned. It described him as 'very angry, frustrated and powerless'. It recommended an adjustment to his dose of a medication and concluded 'no psychiatry review planned but re-refer if necessary'.

75    The second was a clinical record prepared by a counsellor in respect of a consultation in January 2018. It referred to the applicant having attended a presentation about what is PTSD (apparently a reference to post traumatic stress disorder). It referred to the counsellor assisting the applicant in completing a questionnaire 'which seems to be that he has PTSD'. It records an account of distressing circumstances as a child when he was sexually assaulted, living on the streets with his younger brother and training as a child soldier and escape to South Africa.

76    On the basis of these materials a submission was advanced to the effect that revocation of the applicant's visa would return him to the very place that had given rise to his trauma. It was submitted this was a matter that the Tribunal was required by the Direction to consider.

77    However, the materials do not disclose a formal diagnosis or any treatment for mental health issues beyond the reference to 'adjustment disorder' and the assessment by the counsellor.

78    The applicant did not raise concerns before the Tribunal based on these matters when making submissions to the Tribunal. However, as has already been noted, the Tribunal was to comply with the Direction in undertaking its decision making task. It was required to do so by reference to the material before the Tribunal irrespective of whether the applicant (who acted on his own behalf) made specific reference to particular documents. The complaint made by the applicant is not that his contentions or submissions were disregarded, but rather that there was a failure by the Tribunal to conform to the Direction and that the Tribunal had to take account of the considerations stated in the Direction in order for there to be a valid discharge of the statutory task of considering whether to revoke the cancellation of the applicant's visa.

79    Paragraph 14.5 of the Direction (quoted above) requires the Tribunal to have regard to the extent of any impediments that the person may face if removed from Australia to their home country in establishing themselves and maintaining basic living standards, taking account of, amongst other things, the person's health. It is one of the 'other considerations' specified in the Direction.

80    As to any such impediments, the Tribunal noted the difficulties in re-establishing in Mozambique to which the applicant referred in submissions. Those difficulties did not include specific consideration of the applicant's health. The Tribunal concluded (para 112):

On the little evidence available to it, the Tribunal accepts that there would be potentially significant impediments in the Applicant establishing himself and that this consideration weighs in favour of revocation of the cancellation of the visa.

81    Importantly, health was only to be considered if it presented as an impediment. The limited material on which the applicant relies did not identify any health issues that would give rise to a distinct and particular difficulty for the applicant in re-establishing in Mozambique over and above the difficulties that were accepted by the Tribunal.

82    The Tribunal did identify that the applicant had no family left in Mozambique and he had limited ability to read and write. In relation to the country conditions, the Tribunal found that they were not as bad as was stated by the applicant but 'it is undoubtedly the case that the [a]pplicant will face not insubstantial impediments in re-establishing himself in Mozambique' (para 110).

83    In those circumstances, ground 3 has not been established for the following reasons.

84    First, the Tribunal did consider the extent of impediments and did so by reference to the terms of the Direction.

85    Second, although the Tribunal's task was inquisitorial and was not confined by the submissions made by the appellant, when it came to whether the applicant's health was a material matter bearing upon his ability to re-establish in Mozambique, the Tribunal could act upon the applicant's own submission directed specifically to that topic in determining what was relevant, and did so.

86    Third, the nature of the evidence relied upon by the applicant did not establish that the evidence was so relevant that it might be inferred that there was a failure to consider whether the applicant's health was a materially relevant factor bearing upon re-establishment. This was a case where it was to be inferred that the Tribunal formed the view that the matters that it listed were those that were relevant to the consideration stated in para 14.5. It included in the reasons what it considered to be materially relevant.

87    Fourth, even if I am wrong in the view that there was no failure to comply with para 14.5, it was not a material failure because the Tribunal concluded that there were impediments and that the consideration weighed in favour of revocation. It has not been shown, as a matter of fact, that the addition of the matters stated in the two documents if relied upon in undertaking the required weighing exercise could realistically have affected the result. Having regard to (a) the overall reasoning of the Tribunal; (b) the weight that it gave to the primary considerations; and (c) the fact that it had accepted that there were potentially significant impediments that weighed in favour of revocation but that did not cause the Tribunal to reach that conclusion, the materiality requirement for the demonstration of jurisdictional error has not been met.

Aggregation of breaches to demonstrate materiality

88    The applicant did not specifically submit that the materiality of any jurisdictional error was to be adjudged by aggregating any failures by the Tribunal to conform to the Direction when making its decision. However, the nature of the principles explained in Hossain and SZMTA would require the Court to aggregate failures in order to make an assessment of materiality. That is because materiality is adjudged for the purpose of assessing whether in fact, in the particular circumstances of the case, the extent of breach of a statutory requirement was of a character that it could realistically have affected the result. The inquiry is undertaken for the purposes of determining whether a condition that must be met in order for there to be a valid exercise of statutory power has been complied with in a particular case. Therefore, the evaluation must be undertaken by reference to the exercise of the statutory power as a whole, not in a compartmentalised manner.

89    In my view, this is not a case where the aggregation of the breach that I have found as to ground 1 together with the possible breach as to ground 3 would result in a conclusion that those matters could have had anything more than marginal significance. In the context of the Tribunal's reasoning, treating both matters as breaches of the obligation to comply with the Direction, they do not together amount to failures that could realistically have affected the outcome if they were added to the weighing process undertaken by the Tribunal. I reach that conclusion bearing in mind that the evaluation of their significance is to be undertaken on the basis that it is the Tribunal that is to perform the weighing process and not the Court. However, I am satisfied that the matters complained of, if corrected for, were of such marginal significance that they could not realistically have affected the result.

Conclusion and costs

90    Each party accepted that appropriate order as to costs was to make orders for costs to follow the event. Therefore, for the reasons I have given the application should be dismissed with costs.

Associate:

Dated:    18 September 2019