FEDERAL COURT OF AUSTRALIA

JNMK v Minister for Home Affairs [2019] FCA 1758

ORDERS

THE COURT ORDERS THAT:

1.    The application is allowed.

2.    A writ of certiorari issue directed to the second respondent, quashing its decision made on 24 April 2018.

3.    A writ of mandamus issue directed to the second respondent, requiring it to determine the applicant's application for review according to law.

4.    The applicant has liberty to apply in relation to costs on 14 days' notice.

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

REASONS FOR JUDGMENT

JACKSON J:

1    The applicant seeks judicial review of a decision by the Administrative Appeals Tribunal affirming a decision of a delegate of the first respondent (the Minister) to refuse to grant a Partner (Migrant) (Class BC) visa: JNMK and Minister for Immigration and Border Protection [2018] AATA 971. The delegate refused the visa under s 501(1) of the Migration Act 1958 (Cth) on the ground that the applicant did not pass the character test.

2    The applicant also seeks an extension of time. The Tribunal made its decision on 24 April 2018, meaning that the last day to make the application within the time limit imposed by s 477A(1) of the Act was 29 May 2018. The applicant, who was unrepresented at the time, filed an application for review of the Tribunal's decision in the Federal Circuit Court of Australia on 6 July 2018. That court, lacking jurisdiction to decide the application, transferred the matter to this court on 8 August 2018. This court has jurisdiction pursuant to s 476A(1)(b) and s 476A(2) of the Act to determine whether remedies should be granted in the event of jurisdictional error on the part of the Tribunal.

3    The Minister does not oppose the application for an extension of time. The outcome of the application will affect the interests of the applicant's wife and his two children, all of whom are Australian citizens. As is apparent from the following reasons, the grounds of review are at least arguable. I will grant the extension of time. The hearing of the application for judicial review was listed at the same time as the application for an extension of time. The balance of these reasons concern the substantive application.

Background

4    The applicant is a citizen of Zambia. He arrived in Australia in October 2008 under a student visa. He met the person who is now his wife in 2011, when they were both studying at Curtin University. She is an Australian citizen. I will refer to her as Ms D.

5    On 3 March 2012 a car driven by the applicant was involved in a single vehicle accident, causing one passenger to be killed and another to be injured. The applicant suffered head injuries and spent four months in hospital.

6    The applicant pleaded guilty to four offences arising out of the incident, namely driving with a blood alcohol level above 0.05 g per 100 ml, driving without a licence, dangerous driving occasioning death and dangerous driving occasioning bodily harm. The Perth Magistrates Court imposed suspended sentences of 9 months and 3 months respectively for the last two of these offences.

7    The applicant returned to Zambia in November 2012, where he married Ms D in July of 2013. He returned to Australia in January 2014 under a Partner (Provisional) (Class UF) visa. In April 2016, Ms D gave birth to their daughter, whom I will call K.

8    The applicant applied for the Partner (Migrant) (Class BC) visa at the same time as the Partner (Provisional) (Class UF) visa on 16 July 2013. It is common ground that the delegate of the Minister, and then the Tribunal, had a discretion to refuse to grant the visa because the total of 12 months imprisonment that was imposed for the driving offences meant that the applicant did not pass the character test. After issuing a notice of intention to consider refusal of the visa application, the Department of Immigration and Border Protection, notified the applicant on 1 February 2018 that the delegate had refused to grant the visa.

9    In March of 2018 the applicant pleaded guilty to two further driving offences which took place in January of that year, namely driving with a blood alcohol concentration above 0.05 g per 100 ml and driving without a licence.

10    The applicant applied to the Tribunal for review of the delegate's decision on 2 February 2018. The Tribunal heard the application for review on 11 April 2018 and delivered its decision on 24 April 2018. At the time of the hearing and decision, Ms D was pregnant with her and the applicant's second child, a daughter, who was born in July of 2018.

The challenges to the Tribunal's decision

11    Before the Tribunal the applicant claimed that he had been rehabilitated and had changed his attitude since the car accident in 2012, and that he understood the consequences of the bad choices he had made at that time. These claims were seriously undermined by the fact that the applicant reoffended in January 2018 at a time when he knew that the Department was considering the refusal of his visa because of the 2012 offences. After considering the circumstances of the 2018 offences, the Tribunal concluded that the applicant's claims about rehabilitation and his understanding of the grave consequences of his past choices could be given no weight. The Tribunal found there was a substantial risk of the applicant reoffending and that this posed an unacceptable risk to the Australian community, which weighed heavily against the grant of a visa. The applicant does not challenge that aspect of the Tribunal's reasoning.

12    The applicant does challenge aspects of the Tribunal's reasoning concerning the interests of the child who was unborn at the time of the Tribunal's hearing and decision, the interests of K, who was 2 years old at the time of the decision, and the interests of Ms D. The applicant also claims that the Tribunal committed a jurisdictional error in proceeding on the basis that the strict 84 day time limit for the Tribunal to make a decision that is imposed by s 500(6L) of the Act had started to run. He claims that it had not started to run because the Department had not complied with s 501G of the Act when it notified the applicant of the delegate's decision.

13    I will summarise the Tribunal's reasoning as I consider each of those grounds in turn. Before that, however, I will set out relevant aspects of Ministerial Direction 65, Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA. The direction is relevant to three of the four grounds now being pressed (the applicant having withdrawn a fifth ground).

Direction 65

14    On 22 December 2014 the Minister gave Direction 65 under s 499(1) of the Act. Section 499(2A) gives the direction statutory force by providing that a person or body must comply with a direction given under s 499(1). The Tribunal is such a body, so s 499 required it to comply with Direction 65 in relation to the decision presently under review. Direction 65 was replaced by a new Ministerial direction, numbered 79, on 28 February 2019.

15    The title of Direction 65 describes its subject matter. After a preamble setting out some objectives, general guidance and principles, paragraph 7(1)(a) relevantly required decision-makers to 'take into account the considerations' in Part B of the direction 'where relevant, in order to determine whether a non-citizen will forfeit the privilege of being granted … a visa'.

16    Paragraph 8 prescribed how this was to be done. Decision-makers 'must take into account the primary and other considerations relevant to the individual case'. Paragraphs 8(3) to 8(5) made provision for the weight to be given to primary considerations and other considerations as follows:

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

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

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

17    Paragraph 11 provided that in deciding whether to refuse a non-citizen's visa, the 'best interests of minor children in Australia' is one of the primary considerations. There were two others: the protection of the Australian community from criminal or other serious conduct and the expectations of that community.

18    Paragraph 11.2 dealt specifically with the primary consideration of the best interests of minor children affected by the decision. Paragraph 11.2(1) provided that decision-makers 'must make a determination about whether refusal is, or is not, in the best interests of the child.' Paragraph 11.2(2) stated that this consideration applied 'only if the child is, or would be, under 18 years old at the time when the decision to refuse to grant the visa is expected to be made.' Paragraph 11.2(4) provided:

In considering the best interests of the child, the following factors must be considered where relevant:

(a)    The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);

(b)    The extent to which the non-citizen is likely to play a positive parental role in the future (taking into account the length of time until the child turns 18), and including any Court orders relating to parental access and care arrangements;

(c)    The impact of the non-citizen's prior conduct, and any likely future conduct, and whether that conduct has, or will have, a negative impact on the child;

(d)    The likely effect that any separation from the non-citizen would have on the child, taking into account the child's or non-citizen's ability to maintain contact in other ways;

(e)    Whether there are other persons who already fulfil a parental role in relation to the child;

(f)    Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);

(g)    Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and

(h)    Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.

19    Paragraph 12(1) required the decision-maker, in deciding whether to cancel a visa, to take into account other considerations where relevant, one of which was the impact on family members. Paragraph 12.2 described that consideration as follows:

Impact of visa refusal on immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely …

Ground 1 - the best interests of the unborn child

20    By ground 1 the applicant alleges that the Tribunal misconstrued or misapplied paragraph 11.2(4) of Direction 65 to preclude as a primary consideration the best interests of the child who was unborn at the time of the Tribunal's decision.

21    The applicant submitted to the Tribunal that it should treat the interests of the unborn child as a primary consideration. The Tribunal rejected this submission. It relied on two previous Tribunal decisions to the effect that an unborn child was not a 'minor child' or a 'child' for the purposes of that requirement, leading it to conclude that it would not treat the interests of the unborn child as a primary consideration. It did, however, advert to the impending birth of the child in considering the interests of Ms D under paragraph 12.1(b) of Direction 65.

22    Counsel for the applicant described his position as a formal submission that SZRLY v Minister for Immigration and Citizenship [2012] FCA 1459 was wrongly decided. The error was said to have occurred when the judge in that case, Griffiths J, held that reference to 'child' in the United Nations Convention on the Rights of the Child does not reach an unborn child. The applicant did not contend that Direction 65 incorporated some other meaning of 'child'. He submitted that SZRLY and two other decisions of this court said to be to the same effect were also wrongly decided. They are: Kalm v Administrative Appeals Tribunal [2013] FCA 890; (2013) 215 FCR 221; and Mehta v Minister for Immigration and Border Protection [2015] FCA 1096; (2015) 238 FCR 439. However counsel conceded that they were not plainly wrong.

23    There is a judicial duty to follow an earlier decision of another judge unless convinced that it is plainly wrong: see Fair Work Ombudsman v Spotless Services Australia Ltd [2019] FCA 9 at [105]-[107] (Colvin J) and the authorities cited there. In the absence of any contention that SZRLY, Kalm and Mehta are plainly wrong, let alone full submissions as to why, I will follow those decisions. Kalm, in particular, points to the conclusion that an unborn child is not a minor child for the purposes of the requirement in Direction 65 to consider the best interests of minor children (it was decided under a previous, but materially similar Ministerial direction).

24    I do not uphold ground 1.

Ground 2 - the best interests of the applicant's daughter

25    By ground 2 the applicant alleges that the Tribunal fell into jurisdictional error because it failed to give proper, genuine and realistic consideration to what was in the best interests of the applicant's then 2-year-old Australian citizen daughter, K, or to the subordinate mandatory consideration set out at paragraph 11.2(4)(d) of Direction 65.

26    As has been seen, paragraph 11 of the direction required the Tribunal to consider the best interests of minor children in Australia as a primary consideration. Paragraph 11.2(4) sets out a number of factors that 'must be considered where relevant', including at 11.2(4)(d), the likely effect that any separation from the non-citizen would have on the child, taking into account the child's or non-citizen's ability to maintain contact in other ways.

27    The applicant's central complaint under this ground was that, while the Tribunal expressly found that the interests of K weighed in favour of the grant of the visa, its reasons were directed entirely to the likelihood that the whole family would relocate to Zambia if the applicant's visa were refused. So, it was said, there was no consideration of the impact it would have on K, an Australian citizen, if she was removed from Australia, and thus lost the social, cultural, medical and other forms of support and protection afforded by Australian citizenship, and suffered social and linguistic disruption, loss of educational opportunities and isolation from Ms D's Australian family.

28    Counsel for the Minister did not suggest that the consideration described in paragraph 11.2(4)(d) of Direction 65 was other than mandatory, provided it was relevant. It is well established that if a statute requires a decision-maker to consider mandatory criteria, the decision-maker must engage in an active intellectual process directed at those criteria: Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352 at [45] (Griffiths, White and Bromwich JJ). It is preferable to approach the question that way rather than via the terminology of proper, genuine and realistic consideration because of the risk that the latter causes a slide into impermissible merits review: see Swift v SAS Trustee Corporation [2010] NSWCA 182 at [45] (Basten JA), approved in Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; (2010) 243 CLR 164 at [30].

29    In Singh v Minister for Home Affairs [2019] FCAFC 3 at [34] the Full Court (Reeves, O'Callaghan and Thawley JJ) stated:

The principle is directed to the question whether the jurisdiction reposed in the decision-maker is in fact exercised and exercised in a way which is authorised by the statute. If the decision-maker does not actively consider a mandatory consideration, the decision-maker has not exercised the jurisdiction the statute contemplated the decision-maker would exercise.

30    In relation to the circumstances in which Direction 65 is to be applied here, it is appropriate to recall what Allsop CJ said in Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; (2018) 364 ALR 423 at [3], in the context of s 501, that:

… where decisions might have devastating consequences visited upon people, the obligation of real consideration of the circumstances of the people affected must be approached confronting what is being done to people. This obligation and the expression of its performance is not a place for decisional checklists or formulaic expression.

31    To the extent that the Tribunal here did consider the likely effect that any separation from the applicant would have on K, its reasons on the point were brief. At paragraph 55 of its reasons the Tribunal set out the list of factors in paragraph 11.2(4) of Direction 65 that must be considered where relevant, which I have quoted above. It then recorded its acceptance of evidence that the applicant was a loving and caring father. It also recorded the Minister's acceptance that it would be in the best interests of the child if the applicant were not to be refused a visa, and that this weighed against refusal.

32    The Tribunal then referred to evidence from the applicant that Ms D had said 'maybe in the future we can start up a business in Zambia'. She was at university in Australia at the time of the Tribunal hearing, but after she graduated she could 'maybe make some money and then go and maybe start a business in Zambia'. The Tribunal summarised Ms D's evidence as being 'to the effect that they had discussed a long-term goal of running some hospitality based business in Zambia' but that she wanted to complete her studies and so 'saw a possible move to Zambia "in 10 to 15 years"'. The Tribunal also noted evidence that Ms D had been warmly welcomed into the applicant's family, and that his father owned three farms in Zambia.

33    The Tribunal concluded this part of its reasons as follows:

61.    While it is accepted by the Minister that the best interests of the child would be served by the grant of the visa, it is not totally clear that if a visa were not granted that the family would not relocate to Zambia. The Applicant's wife gave evidence that she provides care for her grandmother for which she receives a carer's benefit from Centrelink (Hearing Transcript, p 55). The Applicant's wife's grandmother lives with her husband, however, he has dementia. The Applicant's wife's evidence was that, while there were other members of her family (two aunties) who could look after her grandmother it would be difficult because they worked full-time (Hearing Transcript, p 56).

62.    The Applicant and the Applicant's wife also gave evidence that finding employment in Zambia, particularly without a higher qualification, would be difficult, hence the Applicant's wife's preference to complete her current university course and save some money before considering shifting to Zambia. It is not completely clear to the Tribunal that if the visa were not granted, the Applicant and the child would be separated.

34    The Tribunal then turned to discussion of whether it was required to take into account the interests of the applicant's then unborn child, which is the subject of ground 1. After finding that it was not required to take that into account, the Tribunal simply concluded (at paragraph 67), 'On balance, however, the Tribunal accepts that the interests of the Applicant's daughter weigh in favour of the grant of the visa.'

35    The Tribunal returned to the possibility that Ms D would go to Zambia to be with the applicant when it came to consider her interests, as required by paragraph 12.2 of Direction 65: see paragraphs 80-82 and 84. Its consideration of the question at that point did not materially add to its earlier reasons on the question. In that part of its reasons the Tribunal also considered what would happen if the visa was not granted and Ms D chose to stay in Australia: see paragraphs 83-84 and 86-87. However it did so entirely by reference to the interests of Ms D, and not by reference to K.

36    At the end of its reasons when weighing up the various considerations that were mandatory under Direction 65, the Tribunal said (at paragraph 92(b)) that while the interests of the applicant's child weighed in favour of the grant of a visa, that was outweighed by the other primary considerations.

37    So the Tribunal said nothing specific about the likely effect that any separation from the applicant would have on K, and very little about the effect on her if there was no separation because the whole family relocated to Zambia. It recorded a concession of the Minister in very general terms that it would be in the best interests of K if the applicant was not refused a visa, and it accepted this concession in similarly general terms. Its express consideration of any separation between the applicant and his daughter was exclusively directed to the question of whether there would be any such separation. The Tribunal did not address the question of the effect on K if she and the applicant were separated. There is brief reference elsewhere in the reasons to the availability of family support in Australia to the applicant's wife and children (paragraph 86), but that is in the context of the impact on Ms D and is so fleeting that it can hardly be said to constitute active intellectual engagement with the question of what was in K's best interests.

38    The Tribunal also, as the applicant submitted, gave next to no consideration to the effect on K if she were to move to Zambia with her parents. The applicant's submissions about this were based on Vaitaiki v Minister for Immigration & Ethnic Affairs (1998) 150 ALR 608. However that case was not decided under Direction 65 or any equivalent predecessor, and it proceeded on the basis that the unsuccessful visa applicant and the relevant children would relocate, in their case to Tonga. Failing to consider the matters identified in Vaitaiki might support a broader submission that the Tribunal failed to engage actively with the best interests of the child. But it provides little assistance on the more specific ground which in my view is determinative here, namely whether the Tribunal considered the effect on the child of any separation from the applicant, as required by paragraph 11.2(4)(d) of Direction 65.

39    The Minister did not contend that the Tribunal did specifically address that factor in its reasons. His case was, rather, that paragraph 11.2(4) only requires the factors set out in it to be considered 'where relevant'. Thus there is no requirement for the Tribunal to set out each factor listed in paragraph 11.2(4) and to express a view on it one way or another.

40    I accept that submission, as far as it goes. Further, the usual way of reading provisions such as paragraph 11.2(4) is that they require the decision-maker to form an opinion about the relevance or otherwise of each factor, but in this context relevance is not a jurisdictional fact that the court must determine for itself: SZTMD v Minister for Immigration and Border Protection [2015] FCA 150; (2015) 150 ALD 34 at [20] (Perram J); and Nigam v Minister for Immigration and Border Protection [2017] FCA 106; (2017) 71 AAR 369 at [17] (Perry J). Section 43(2B) of the Administrative Appeals Tribunal Act 1975 (Cth), which requires the Tribunal to include in its reasons its findings on material questions of fact, only requires the Tribunal to set out the findings of fact which in its opinion are material: Appellant V324 of 2004 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 259 at [8] (Hill and Allsop JJ).

41    With that in mind, if the Tribunal's reasons do not mention a factor, the consideration of which is mandatory under Direction 65, it does not necessarily follow that it has failed to consider that factor. Section 43(2B) entitles the court to infer that any matter not mentioned in the Tribunal's reasons was considered by the Tribunal not to be material: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [69] (McHugh, Gummow and Hayne JJ), a case about s 430 of the Migration Act but s 43(2B) of the Administrative Appeals Tribunal Act is not materially different - see Civil Aviation Safety Authority v Central Aviation Pty Ltd [2009] FCA 49; (2009) 253 ALR 263 at [29].

42    A similar inference will be available where the question is what is 'relevant' under Direction 65, rather than materiality. However the inference is not mandatory. The manner in which a statement of reasons is drawn and its surrounding context may detract from or displace the inference; for example because there is material that is so obviously relevant that it is unthinkable that the Tribunal would not have referred to it if it had actually considered it: SZTMD at [19].

43    So here the question becomes whether, on a fair reading of the Tribunal's reasons as a whole, the lack of any mention of the effect that separation from the applicant would have on K is explained by an inference that the Tribunal did not consider that to be relevant. A couple of matters support that inference. The main one is that the Minister had conceded that the best interests of K weighed against refusal of the visa. In light of that, the Tribunal may have considered that there was no need to address the factor at paragraph 11.2(4)(d) of Direction 65. The other matter is that the reasoning the Tribunal does set out suggests that it considered separation to be unlikely, because the whole family would probably move to Zambia.

44    Nevertheless, I consider that here, an inference of the kind suggested in Yusuf would be irreconcilable with a few prominent features of the matter under review, and the Tribunal's published reasons.

45    First, leaving the concession made by the Minister to one side for the moment, it is hard to conceive how the effect of any separation of K from the applicant could not be relevant. The child was 2 years old at the time of the Tribunal's decision. The applicant's solicitors had submitted that any separation would have a severely detrimental effect on his children (including the then unborn child). The Tribunal found that the applicant was a loving and caring father.

46    Second, the Tribunal's reasons indicate that it did consider the question of separation to be relevant. That is why it addressed the likelihood that separation would not occur. The attention that the Tribunal did pay to that question is inconsistent with the idea that it considered the question to be irrelevant. In light of what the Tribunal did say, I do not consider that the question of the effect of separation on K, which has been omitted from the reasons, can be sensibly understood as a matter considered, but not mentioned because it was not material: cf. Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16; (2014) 309 ALR 67 at [34].

47    Third, the content of the Tribunal's reasons on the issue points away from a conclusion that the question of separation was irrelevant because no separation would occur. All the evidence that the Tribunal recorded was to the effect that if Ms D and her children did move to Zambia, that would not happen at least until she finished her degree, and probably after she had saved some money and perhaps even not for 10 to 15 years. The Tribunal's findings were expressed in correspondingly tentative terms: 'it is not totally clear that if a visa were not granted that the family would not relocate to Zambia' (paragraph 61); '[i]t is not completely clear to the Tribunal that if the visa were not granted, the Applicant and the child would be separated' (paragraph 62). When it came to consider Ms D's interests under paragraph 12.2 of Direction 65, the Tribunal described the possibility of Ms D going to live in Zambia merely as an 'option', and one 'she does not want to take, at this time anyway' (paragraph 86) and at that point it considered the impact on Ms D of separation from the applicant. This confirms that its tentative findings about the possibility of separation were not just circumlocutory ways of expressing a firm conclusion that there would be no separation. But there is no separate consideration of the impact of separation on K.

48    Returning to the Minister's concession that it would be in the best interests of the child K if the visa were granted, if the Tribunal thought that this meant it did not have to consider the effect of separation, that would have been a misunderstanding of its function on review, in light of Direction 65. Ultimately, what the direction required the Tribunal to do was to weigh up the primary considerations, and the other considerations, in order to make a decision as to whether the visa should be refused. While the weight to be put on each consideration was a matter for the Tribunal (subject to the direction), the Tribunal could not go about the task of assigning appropriate weight to the primary consideration of the best interests of K without making some sort of assessment of what was in her best interests, including the strength of the various considerations. To accept a bland concession by the Minister without going into the relevant facts is to fail to make an assessment of weight. That would itself be a jurisdictional error. I will assume, favourably to the respondents, that the Tribunal did not make that error here.

49    If so, then a fair reading of the reasons indicates, with respect, that the Tribunal's doubt about whether there would be a separation led it to disregard the consequences of what that separation would be. But doubt is all it was. Harbouring doubt about whether separation will occur is not the same thing as considering whether the question of separation was relevant, and deciding that it was not. For the reasons I have given, that is not what the Tribunal did here.

50    It is important not to read the Tribunal's reasons with an overly critical eye, and at least equally important that the court not conduct its own review of the merits. But in this case, there is just no mention at all of what separation from the applicant would mean for his 2-year-old daughter, and that is not explicable by any firm finding that such separation would not occur.

51    The Minister submitted that even if the Tribunal fell into error in failing to consider the factor at paragraph 11.2(4)(d), that was not a jurisdictional error because it was not material to the outcome in the sense explained in Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 363 ALR 599.

52    I do not accept that submission. The onus on the applicant in this case is to demonstrate that compliance, by the Tribunal, with the requirement that it consider the effect that any separation from the applicant would have on K could realistically have resulted in a different decision: see SZMTA at [45]. The factor in question here went to one of the primary considerations. The Tribunal accepted that the applicant was a loving and caring father. There was evidence suggesting that the separation might last for nearly K's entire childhood (10 to 15 years on from the age of 2), or longer. The applicant's history of offending, while serious, was not close to the extreme end of the spectrum. Active engagement with the question of how a separation from the applicant would affect K may well have led the Tribunal to put greater weight on the primary consideration of K's best interests than it in fact did, having accepted the Minister's concession. The possibility that this would have led to a different outcome is a realistic one.

53    I therefore uphold ground 2. In my view, the Tribunal did not determine that the effect that any separation from the applicant would have on K was not relevant. So it was mandatory for the Tribunal to consider that factor but, with respect, it failed to do so. That is a jurisdictional error: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 39-40; and see VKTT v Minister for Home Affairs [2019] FCA 1018 at [19] (Burley J) and the cases cited there.

Ground 3

54    Since I have upheld ground 2, I can deal with the remaining grounds more briefly.

55    By ground 3, the applicant claims that Tribunal's decision was vitiated by a failure to give proper, genuine and realistic consideration to the impact of the refusal of the applicant's visa, on Ms D 'qua mother of the then unborn child'. Alternatively, he claims there was a failure to give proper, genuine and realistic consideration to the impact of the refusal on the unborn child when she was born, as an Australian citizen.

56    The applicant relies on paragraph 12.2(1) of Direction 65, which sets out as an 'other consideration', to which decision-makers must have regard where relevant, the impact of visa refusal on immediate family members in Australia, including where those family members are Australian citizens. Ms D is an Australian citizen.

57    I would not uphold ground 3, for the simple reason that the Tribunal did consider the interests of Ms D. At paragraphs 77 to 87 it went through the role she played in giving care to her grandmother, a submission made on her behalf that the refusal of the visa would result in significant financial and emotional hardship for her (including noting that a letter from her on that subject was written before her then current pregnancy), the welcoming attitude of the applicant's Zambian family to Ms D and the level of family support Ms D would have in Australia. The Tribunal concluded that it was clear that there would be adverse impacts on Ms D both financially and emotionally if the visa were not granted. It cannot be said that the Tribunal failed to engage in an active intellectual process directed at the consideration in paragraph 12.2 of Direction 65.

58    The applicant's real complaint is that the Tribunal did not consider the impact on Ms D as the mother of his unborn child, or the impact on the unborn child herself under this heading. But the Tribunal did acknowledge the pregnancy, albeit briefly (at paragraph 79). It is also clear that when it referred to family support in Australia, it had in mind support in bringing up the children: see paragraphs 83 and 86. In any event, counsel for the applicant did not submit (separately from ground 1) that the interests of the unborn child or the interests of Ms D as mother to be of that child were mandatory relevant considerations.

59    I do not uphold ground 3.

Ground 4

60    By ground 4 the applicant claims that the Tribunal's decision was vitiated by a failure to consider whether to exercise its power to adjourn the review until after the imminent birth of the applicant's then unborn child. It is said that this course was open to the Tribunal because the 84 day time limit under s 500(6L)(c) of the Migration Act had not started to run, because the applicant had not been notified of the decision ‘in accordance with subsection 501G(1) of the Act.' That is because, contrary to s 501G(1)(f)(iv), no written notice informing of the right to review and stating where the application for review can be made was given to the applicant.

61    In Khalil v Minister for Home Affairs [2019] FCAFC 151 at [58] the Full Court noted that there was considerable support in several single judge decisions for the view that failing to give notice of those things would mean that the time limit in s 501G(1) would not be engaged. However even if that is made good here, ground 4 runs up against the basic fact that in the present case (unlike in Khalil), at no point did the applicant (who was legally represented before the Tribunal) request any adjournment, for that reason or for any other.

62    There are broad similarities between the present matter and Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332, in that in both cases, a particular development was imminent which, if the tribunal hearing was adjourned, would come to fruition and could change the complexion of the review. In Li it was a decision on a review of an unfavourable skills assessment by Trades Recognition Australia, here it is the birth of the applicant's second child. But in Li, the applicant's representative had asked the Migration Review Tribunal to forbear from making any final decision regarding the review application until the outcome of the skills assessment application was finalised. The decision that was successfully impugned was a decision to refuse an adjournment that had been requested: see [19] (French CJ), [80] (Hayne, Kiefel and Bell JJ ), [124] (Gageler J).

63    Counsel for the applicant attempted to bolster his client's position by characterising the question of whether the time limit had started to run as a question of the limits of the Tribunal's jurisdiction, into which it was bound to inquire. But even if that is correct (which I doubt), ground 4 amounted to a contention that the Tribunal here:

(a)    failed to identify a deficiency in notification material, which no one brought to its attention;

(b)    thereby did not identify a basis for discounting an impediment to adjournment, which no one had raised with it as such an impediment;

(c)    thereby failed to grant an adjournment, which no one had asked for;

(d)    so as to put itself into a position of being required to take into account a matter that it was not required to take into account at the time of the hearing.

64    That is, with respect, a very long bow to draw. Like a similar suggestion made in the proceedings which culminated in Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 359 ALR 1, it rises no higher than conjecture: see [36]. I do not uphold ground 4.

Conclusion

65    The application will be allowed and the matter remitted to the Tribunal for review according to law.

Associate:

Dated:    29 October 2019