FEDERAL COURT OF AUSTRALIA

RZMW v Minister for Home Affairs [2019] FCA 1761

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 11 December 2018.

3.    A writ of mandamus issue directed to the second respondent, requiring a Tribunal constituted differently to the Tribunal that made the decision of 11 December 2018 to determine the applicant's application for review according to law.

4.    The applicant has liberty to apply in relation to costs within 14 days of the date of these orders.

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 of the Administrative Appeals Tribunal. The Tribunal affirmed a decision by a delegate of the first respondent (the Minister) refusing to revoke the cancellation of the applicant's refugee (Class XB Subclass 200) visa. The visa had been cancelled by reason of the mandatory operation of s 501(3A) of the Migration Act 1958 (Cth). It was cancelled because the applicant did not pass the character test, as he had been sentenced to a term of imprisonment of more than 12 months and was serving a sentence of imprisonment on a full-time basis.

2    The Tribunal had jurisdiction under s 500(1)(ba) of the Migration Act to review the delegate's decision not to revoke the cancellation. This court has the same jurisdiction to grant judicial review of the Tribunal's decision as the High Court has under s 75(v) of the Constitution: s 476A(1)(b) and s 476A(2) of the Migration Act.

Statutory framework

3    Section 501(3A) of the Migration Act provides that the Minister must cancel a visa that has been granted to a person if, relevantly, the person does not pass the character test because he or she has a substantial criminal record (as defined by s 501(7)) and is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth or a State or Territory. It is common ground that this required the Minister to cancel the applicant's visa here.

4    Section 501CA(4) empowers the Minister to revoke a decision that has been made under s 501(3A) to cancel a visa if the person whose visa has been cancelled makes representations in accordance with an invitation that the Minister is obliged under s 501CA(3) to extend, and the Minister is satisfied that the person passes the character test or 'that there is another reason why the original decision should be revoked'.

5    At the time of the decisions made by the delegate of the Minister and the Tribunal in relation to the applicant's visa, Ministerial Direction 65 applied. Under s 499(2A), both the delegate and the Tribunal were required to comply with the direction. In February 2019 it was replaced with a new, equivalent direction, Ministerial Direction 79 but that was after the date of the Tribunal's decision on 11 December 2018.

6    Paragraph 6 of Direction 65 included a number of principles which provided a framework within which decision-makers were to approach their task (see paragraph 5). Paragraph 7 required the Tribunal to take into account certain considerations, found in Part C of the direction, in order to determine whether the mandatory cancellation of a non-citizen's visa would be revoked. 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.

7    Part C commenced at paragraph 13(1), which required the Tribunal to consider whether to revoke the cancellation given the specific circumstances of the case. Paragraph 13(2) set out three 'primary considerations': protection of the Australian community from criminal or other serious conduct; the best interests of minor children in Australia; and the expectations of the Australian community. Paragraph 13.2 was headed 'Best interests of minor children in Australia affected by the decision'. Paragraph 13.2(1) required the Tribunal to 'make a determination about whether revocation is, or is not, in the best interests of the child'. Paragraph 13.2(3) provided that if there were two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.

8    Paragraph 14 set out a number of 'other considerations' which must be taken into account where relevant. They included the '[s]trength, nature and duration of ties' (paragraph 14.2) and the 'extent of impediments if removed' (paragraph 14.5).

Background to this application

9    The applicant is a citizen of Liberia. He experienced what the Tribunal described as a 'difficult upbringing' in that country. This was something of an understatement, as the applicant witnessed the murder of his father when he was 5 years old, and had other highly traumatic experiences.

10    The applicant arrived in Australia in 2004 on the refugee visa when he was 17. Between November 2005 and March 2018 he was convicted of a large number of offences, of escalating seriousness. They include public nuisance, unlawful possession of suspected stolen property, wilful damage of property, serious assault, breach of a domestic violence order, dangerous operation of a motor vehicle, possession of a knife in a public place, and common assault and assault occasioning bodily harm, both of which were domestic violence offences. The victim of the domestic violence was the applicant's partner, whom I will call A. The applicant assaulted her on one occasion when she was pregnant with his child. There was in addition to this a history of traffic offences which the Tribunal described as 'equally appalling'.

11    The applicant blamed his criminal behaviour on alcohol, but the Tribunal found that there was little or no evidence that he had engaged in any rehabilitation programs that might support a decision that he can safely be released back into the community with a visa. The Tribunal found that since July 2013, in particular, the applicant's offending 'took a serious and violent turn'. He had continued to behave violently while in immigration detention. The Tribunal found that his history of offending was very serious.

12    The Tribunal found that the applicant would pose a very significant risk to the general public, his 'domestic spouse' or a law enforcement officer if he were to be released. The potential harm included financial loss, serious physical or psychological injury, or conceivably death. The Tribunal also found there was a high likelihood of the applicant reoffending in a very serious way. Therefore the first primary consideration weighed heavily in favour of the visa being cancelled. So did the third primary consideration, the expectations of the Australian community.

13    In relation to the second primary consideration, the best interests of minor children in Australia, the Tribunal concluded that they did not weigh in favour of revoking the decision to cancel the applicant's visa; at best that consideration had neutral weight. I will address specific aspects of the Tribunal's reasoning in relation to that primary consideration when I deal with the grounds of review. I will also address the Tribunal's reasoning in relation to certain of the other considerations that are the subject of the grounds, namely the 'strength, nature and duration of ties' and the 'extent of impediments if removed'.

Grounds 1 and 1A - strength, nature and duration of ties

14    By ground 1 the applicant claims that the Tribunal misconstrued and misapplied paragraph 14.2(1) of Direction 65, or failed to engage in an active intellectual process with the evidence relevant to the consideration contained in paragraph 14.2(1)(b).

15    Paragraph 14.2(1) of Direction 65 was as follows:

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).

16    The Tribunal's reasoning in relation to this consideration was as follows:

156.    There is a ready (and, in my respectful view, correct) acknowledgement by the Respondent that the Applicant arrived in Australia as a teenager, has resided here for 14 years and, as a consequence, there would be some impact on his family members were he to be returned to Liberia. There was some corroboration from his family members in this regard.

157.    However, I am of the view that less weight should be given to this Other Consideration (b) because of the operative effect of paragraph 14.2(1)(a) of the Direction. The Applicant commenced offending within one year of arriving in Australia. Paragraph 14.2(1)(a) stipulates that less weight should be given to this factor when a non-citizen begins offending soon after arriving here. Taking into account all of the evidence in and around the Applicant's offending history, I concur with the Respondent's contention that this Other Consideration (b) weighs slightly in favour of the Applicant, but is not out-weighed by the Primary Considerations weighing against him.

17    The applicant contends that the Tribunal was wrong to construe the paragraph so that the finding reached under paragraph 14.2(1)(a) meant that less weight should be given to the consideration at 14.2(1)(b). Paragraph 14.2(1)(a) is solely concerned with the non-citizen. Paragraph 14.2(1)(a)(i) provides that less weight should be given to the considerations in 14.2(1)(a). Paragraph 14.2(1)(b) is different, as it is concerned with both the non-citizen and the effect of non-revocation of the visa on others. There is no basis to read it as requiring that the non-citizen's history of offending means that less weight be given to the interests of those other people.

18    The Minister concedes that the Tribunal erred in so far as it found that paragraph 14.2(1)(a)(i) had operative effect in relation to the entirety of paragraph 14.2(1). But the Minister submitted that the error was not a material jurisdictional error because, while the direction to give less weight was not binding in relation to paragraph 14.2(1)(b), it was still open to the Tribunal to give paragraph 14.2(1)(b) less weight because of the applicant's history of offending.

19    I will consider the general question of the materiality of the Tribunal's errors at the end of these reasons, as it needs to be addressed in light of any accumulation of errors. As will be seen, I consider that the Tribunal did fall into error more than once. But even before coming to that, the Minister's submission about ground 1 should be accepted at the outset. In substance, what the Tribunal determined here was that less weight should be given to the strength, nature and duration of the applicant's ties to Australia if, as was the case, he began offending soon after arriving here. It was open to the Tribunal to take that approach.

20    In light of the well-known caution which the courts have expressed against over-zealous scrutiny of the reasons of administrative decision-makers, I do not think the apparent error of construction about the relationship between paragraph 14.2(1)(a)(i) and paragraph 14.2(1)(b) led the Tribunal into taking the wrong approach to paragraph 14.2(1) as a whole. The applicant's history of offending meant that the Tribunal could give less weight to the factor overall. That is what it did. I do not uphold ground 1.

21    By ground 1A, the applicant contends that the Tribunal did not, in any event, engage in an active intellectual process with the evidence relevant to the consideration at paragraph 14.2(1)(b). I do not accept that. Certainly, the specific treatment of the subject under that heading was brief. I have quoted it in full. But it needs to be read in the context of the evidence and the rest of the reasons. The Tribunal acknowledged that the applicant came to Australia as a teenager and had lived here for 14 years. It referred to corroboration from family members of the impact on them if he were to be returned to Liberia. It referred elsewhere to the evidence of the family members (paragraphs 73 and 138). It referred to the applicant's significant parental and familial responsibilities, since he had four infant children with various partners (paragraph 70). As will be seen, it considered the evidence of his partner specifically (paragraphs 75-76). It considered evidence of his relationship (or lack thereof) with his children and nieces and nephews (paragraphs 89-91 and 93-100).

22    It is apparent from all this that the Tribunal was aware of and had considered such evidence as there was in relation to the strength, nature and duration of the applicant's ties with Australia. It was not required to refer to every piece of evidence: Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593 at [46]. Despite the brevity of its specific reasons under this heading, I do not find that the Tribunal failed to engage in an active intellectual process in relation to the evidence relevant to the strength, nature and duration of the applicant's ties to Australia. I do not consider that 'the Tribunal did not even bother to think about it', as the applicant submitted. I do not uphold ground 1A.

Ground 2 - failure to consider the best interests of minor children

23    The applicant claims that the Tribunal failed to make a determination about the best interests of certain children in Australia, and so did not comply with Direction 65.

24    The Tribunal noted that at the commencement of the hearing, the evidence indicated that the applicant had five children under the age of 18. The Tribunal said that at the hearing, however, the applicant gave evidence that one of those children was not his. So the Tribunal considered the interests of the remaining four, who between them were born of three different mothers. It also referred to what it described as 'scant evidence about there being any relationship between the Applicant and any nieces and nephews of his' (paragraph 91). It then went on to consider the interests of the four children, including by reference to the list of specific factors set out in paragraph 13.2(4) of Direction 65. The Tribunal concluded that the best interests of these children did not weigh in favour of the decision to cancel the visa, and at best only neutral weight could be allocated to that primary consideration.

25    The difficulty with this is that, in addition to the five children to whom the Tribunal referred, there was material before the Tribunal indicating that there were other minor children in the applicant's life who might be affected by the cancellation of his visa. They were:

(1)    a daughter, whom I will call S, of the applicant's partner A;

(2)    two other older children of the same mother; and

(3)    a sister of the applicant, whom I will call J.

These children are not mentioned in the Tribunal's reasons at all.

26    The Minister's main response to this is to say that the Tribunal was not required to consider the interests of those other children, because the applicant did not raise any claim that they would be affected by the decision to cancel the visa. But that submission is inconsistent with the judgment of the plurality in Uelese v Minister for Immigration and Border Protection [2015] HCA 15; (2015) 256 CLR 203 (French CJ, Kiefel, Bell and Keane JJ).

27    In that case, the Tribunal had declined to consider evidence as to the existence of two children of an applicant for review of a decision to cancel a visa because the applicant failed to pass the character test. Ministerial Direction 55, a predecessor to Direction 65, applied at the relevant time. Its terms were not materially different for present purposes to those of Direction 65. Under both directions, the Tribunal was required to take into account certain identified considerations 'where relevant', one of which was the best interests of minor children in Australia.

28    Mr Uelese had disclosed three children in his application for review but had not mentioned two other children he had by a different mother. That information only emerged at the Tribunal hearing. The Tribunal declined to consider the information because it believed that s 500(6H) of the Migration Act, requiring two business days' advance notice of certain information, precluded that consideration. The High Court held that this understanding of s 500(6H) was incorrect.

29    In the course of its reasons, the plurality also dealt with a submission advanced by the Minister that the Tribunal was not obliged to consider matters which did not form part of Mr Uelese's case. The plurality rejected that submission (the remaining judge, Nettle J, did not address it). At [61]-[64] their Honours held:

Counsel for the Minister developed a submission that the interests of the appellant's two youngest children were not 'relevant' to the Tribunal's review within the meaning of cl 7(1)(a) of Direction 55. It was said that because the appellant had not included their interests in the case he sought to present to the Tribunal, their interests were not relevant. This submission should be rejected for a number of reasons. First, it depends upon a misreading of cl 7(1)(a) of Direction 55: the best interests of an applicant's minor children in Australia are 'relevant' if such children exist and that fact is known to the Tribunal.

Secondly, the Minister's submission seeks to import into the inquisitorial review function of the tribunal notions appropriate to adversarial proceedings conducted in accordance with formal rules of pleading. That approach is inappropriate to the kind of review undertaken by the Tribunal.

In Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [[2005] HCA 72; (2005) 225 CLR 88 at 98 [24]], this Court cautioned against transposing the language and mindset of adversarial litigation to inquisitorial decision-making of the kind authorised by s 500 of the [Migration] Act [See also Bushell v Repatriation Commission (1992) 175 CLR 408 at 424-425]. It is true, as the Full Court of the Federal Court rightly observed in Jagroop [v Minister for Immigration and Border Protection [2014] FCAFC 123; (2014) 225 FCR 482 at 501 [92]], that both s 500 of the Act and the AAT Act 'contemplate participation by both the applicant and the Minister in the [Tribunal] hearing'. Section 500(6H) expressly contemplates that the applicant will present a 'case'; and it is implicit that the Minister will also present a 'case'. That having been said, it would be to give undue weight to conceptions drawn from adversarial litigation to accept that the Tribunal was not required to take into account the interests of the appellant's two youngest children because he had not sought to advance their interests as a positive part of his case.

Whether or not the appellant sought to make the interests of those children a positive aspect of his case, the Tribunal was obliged by s 499 of the Act and the terms of Direction 55 to take into account the interests of any minor children of which it was aware in determining his application for review. By virtue of s 499 and Direction 55, one of the primary considerations for the Tribunal concerned the interests of children who were not themselves represented in the proceedings before the Tribunal. The requirement of cl 9.3 of Direction 55 to consider the best interests of minor children in Australia affected by the decision is imposed on decision-makers in terms which are not dependent on whether an applicant for review argues that those interests are relevant as part of his or her 'case'.

30    The submission made on behalf of the Minister in this case cannot stand in the face of these observations. Setting aside for the moment the child about whom the evidence was ambiguous, the material before the Tribunal here indicated that there were at least two other children whose interests may be affected by the decision. One of those, J, the applicant's sister in Year 9, gave evidence before the Tribunal. The other was S, the daughter of the applicant's partner, A.

31    The Minister submitted that the evidence did not establish that the interests of the additional children would be affected by the decision. I do not accept that is so in relation to S and J. While the applicant is not S's biological father, the Tribunal had before it a letter of support from her mother, A, which said that that the applicant became like a father to S, who saw him as her true father. The letter said that he would take her to movies, the park and shopping 'and generally just smother her with love'. There is more in the same vein. It is relevant to note that A told the Tribunal in oral evidence that she was presently in a relationship with the applicant, suggesting that his relationship with S was current (albeit necessarily limited by his detention), although as will be seen the Tribunal had reservations about that evidence.

32    It is not, of course, necessary or appropriate for me to find that the things said in the letter are correct. That is a matter for the body charged with deciding the merits of the matter; in this case, the Tribunal. But the Minister's written submissions said that 'there was no evidence for example that the Applicant … played any parental role in relation to these children'. That submission is plainly wrong. S was a relevant child, and the Tribunal was required to make a determination about whether the cancellation of the visa was, or was not in her best interests.

33    The Minister pointed to evidence suggesting that the applicant had not played any parental role in S's life recently, which was inevitable given his ongoing incarceration. But the material before the Tribunal about the nature of the relationship when the applicant was not incarcerated required the Tribunal to treat S as a relevant child and for the Tribunal to make a determination about whether revocation was, or was not, in her best interests. If, after conducting that exercise, the Tribunal determined that the current nature and strength of the relationship meant that her interests would not be adversely affected if the applicant were removed to Liberia, then so be it. But the Tribunal did not consider the question at all.

34    Nor can it be said that the Tribunal was unaware of the applicant's sister, J, or that there was no evidence that the applicant played a parental role in relation to her. After all, she appeared as a witness before the Tribunal, and was in Year 9 at that time. She responded affirmatively to a question from the Tribunal about whether the applicant had become a father figure to her. She gave evidence that he had a big impact on her life, in terms which confirmed that she was referring to a positive impact. She said he helped her cope with depression and was 'always there, like whenever I need help with things'. The Minister did not submit in this court that J could not be relevant because she was the applicant's sister and not his biological child or step child. I find that she too was a child whose interests Direction 65 required the Tribunal to consider.

35    The Minister did not submit that an inference that the Tribunal did take the interests of these children into account should be made, even though they are not specifically mentioned in the Tribunal's reasons. Nor did the Minister submit that it should be inferred or otherwise found that the Tribunal determined that the children were not relevant.

36    I therefore find that in failing to mention S and J, the Tribunal fell into error. Whether it was a jurisdictional error depends on the extent to which it was material to the outcome which, as I have said, I will consider at the end of these reasons.

37    I do not find that the interests of the two other older children of S's mother were relevant so as to require a determination about them for the purposes of the primary consideration of the interests of minor children. In relation to them, the Minister's submission that there was no evidence that the applicant fulfilled a parental role is correct.

38    Apart from the four children I have identified to whom the Tribunal had no regard, the Tribunal did make a finding that a fifth child was not a child of the applicant's. The reasons of the delegate identified the child, whom I will call M, as a son of the applicant. That was the position as the Tribunal understood it at the commencement of its hearing. But at that hearing the applicant gave the following evidence:

I want to talk about your children next. How many children do you have?---Four.

Can you name them for me?---Yes. [names redacted].

Do you have a child by the name of [M]?---Yah, I do have a child by the name of [M] but there's bit of error over them.

Can you explain that?---Her mum recognise not my child, is he husband child 25 so I can't really do much about that.

So you thought at one stage [M] was your child, but he or she didn't?---M'mm. He's not mine. That's what her mum recognised so there is no much I can do about that.

And so you don't have any relationship with that child?---No.

Thank you. And - - -?---But do claim in - I do claim in my personal life is my child. If she say it is not mine then there's nothing I can do about it.

39    This is confusing. For most of the passage the applicant appears to be saying that M is not his child but at the end he appears to say that he is. It appears that his evidence taken as whole was to the effect that M's mother claims that M is not his child, and he is resigned to that, even though he says that M is his child. But given the confusion, it is unsurprising that the Tribunal understood the applicant to be saying that M was not his child.

40    The applicant claims that the Tribunal misinterpreted or misunderstood his evidence, and so failed to make a determination about M's interests as well. But the Tribunal's reasons in relation to the point (at paragraphs 89-90) were as follows (footnote omitted):

The material, at the commencement of the hearing, indicated that the Applicant had five minor children that could potentially be affected by any decision to refuse to revoke the mandatory cancellation of his visa. Those children comprise a 12 year old, an 11 year old, a nine year old, a six year old and a one year old. The initial impression to be taken from the material is that it contains little evidence of the relationship (if any) between the Applicant and each of the children. At the hearing before me, the Applicant gave evidence that the 12 year old child is in fact not his child. The Applicant was content with the Tribunal not taking into account the interests of that 12 year old child for the purposes of this decision.

For the further purposes of this decision, I will assume the Applicant has four minor children, and as best as I understood the evidence, two of the children were from the same mother and the remaining two were from separate mothers. Those four minor children engage the provisions of paragraphs 13.2(1) - (3) and, accordingly, I am required to make a determination about whether a refusal to revoke the mandatory cancellation of the Applicant's visa is, or is not, in the best interests of the four relevant children.

41    While the Tribunal summarises the applicant's evidence, perhaps incorrectly, it also notes that the applicant was content with it not taking M's interests into account. That is consistent with the attitude to M the applicant displayed in the evidence I have quoted, including his acknowledgement that he had no relationship with M. The Tribunal assumed, rather than found, that the applicant had four children, which did not include M.

42    Reading the Tribunal's reasons as a whole and in context I find that the substance of its approach to M was to determine that he was not a relevant child whose interests needed to be taken into account because there was, at least, doubt about his paternity and the applicant did not have any relationship with him. The Tribunal did not fall into error in proceeding on that basis. I do not uphold ground 2 in so far as it challenges the Tribunal's decision not to take M's interests into account. Even if there was an error, in view of the applicant's evidence about and attitude towards M, it was not material. I will return to that at the end of these reasons.

Ground 3 - extent of impediments if removed

43    By ground 3, the applicant claims that the Tribunal fell into error in the way that it approached the mandatory 'other consideration', 'Extent of impediments if removed'. Direction 65 describes that consideration at paragraph 14.5(1) as follows:

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.

44    The Tribunal's reasoning on this other consideration, in full, is set out at paragraphs 161-162 as follows:

Despite my initial misgivings, the evidence evolved in such a way that it is likely that the Applicant will be able to establish himself and maintain basic living standards if returned to his country of origin. Pursuant to sub-paragraphs (a), (b) and (c) of paragraph 14.5(1) of the Direction, the Respondent makes the following submissions (in my respectful view, correctly):

•    that the Applicant is a young man with no significant health concerns;

•    that while the Applicant may face some hardship in re-establishing himself in Liberia, this would only be for the short term and not insurmountable; and

•    that the Applicant would have the same access to social, medical and economic support as other citizens of Liberia.

Consequently, I am of the view that this Other Consideration (e) is of neutral weight in terms of exercising the discretion to revoke the decision to cancel the Applicant's visa.

45    The applicant submitted that the finding that he would have the same access to social, medical and economic support as other citizens of Liberia reflected a misconstruction of paragraph 14.5(1). That was said to be because the reference in that paragraph to what is generally available to other citizens of that country qualifies the reference to maintaining basic living standards. It does not qualify the requirement that the Tribunal take into account any social, medical and/or economic support available to the applicant in that country.

46    In my view that argument displays the kind of overzealous scrutiny of administrative decisions which the courts repeatedly warn against. Whether or not the applicant had the same access to social, medical and economic support as other citizens of Liberia was relevant to the extent of any impediments that he may face if removed to that country, in establishing himself and maintaining basic living standards in the context of what is generally available to other citizens of that country. It was open to the Tribunal to approach the question on that basis.

47    The applicant also submitted that the finding that the applicant had no significant health concerns was inconsistent with evidence before the Tribunal that the applicant had been diagnosed with schizophrenia and also had a hand injury. It is indeed difficult to reconcile the finding that the applicant is a young man with no significant health concerns with the following observation the Tribunal made (at paragraph 81):

I have taken into account a psychiatrist's diagnosis of chronic schizophrenia that was apparently affecting the Applicant in July 2017. This diagnosis occurred while the Applicant was in immigration detention.

The Tribunal said this, not in the course of addressing the 'significant impediments' consideration, but earlier while considering the likelihood of the applicant committing further criminal or serious conduct.

48    The diagnosis to which the Tribunal refers is set out in a report dated 29 July 2017 from a psychiatrist that was before the Tribunal. The Department asked the psychiatrist to conduct a 'Mental Capacity Assessment' of the applicant because he 'presented as having limited ability to understand his situation'. The applicant told the psychiatrist that he had been in contact with mental health services since 2005 and was on various mental health medications. He had been hospitalised two to three times for his mental health. The report set out the content of notes from a mental health centre to the effect that, at an unspecified time, the applicant suffered his 'first episode [of] psychosis with bizarre behaviour and posturing, thought disorder, auditory hallucinations, grandiose delusions of predicting the future. Believed that his partner was hiding telephones.' He had no persecution or other psychotic symptoms at the time of the psychiatrist's examination in 2017. He showed '[p]artial insight into his symptoms, that they [were] due to an illness, and the need for treatment'. The report said 'Symptoms of schizophrenia mostly under control with antipsychotic medication'. The psychiatrist recommended that the applicant 'remain on the mainland initially to check that his mental state is stable and he adjusts to detention environment without any deterioration before considering an offshore site'.

49    It is hard to see how, in the face of this evidence and its own reference to the applicant's schizophrenia, the Tribunal could have accepted a submission that the applicant had no significant health concerns, as readily as it did.

50    This court's role is not, of course, simply to agree or disagree with any finding of fact of the Tribunal. But the failure to refer to the applicant's schizophrenia may nevertheless be a jurisdictional error. There is room for disagreement as to how the error should be categorised; the field of judicial review is not divided into watertight compartments, because the various grounds run together: Boddington v British Transport Police [1999] 2 AC 143 at 152.

51    Generally, it can be said that considering material which has the requisite level of importance is part of discharging the Tribunal's review function: see Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 233 FCR 136 at [42] (Allsop J, as he then was, Spender J agreeing) and see AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89 at [18]. More specifically, it is arguable that an error of the kind alleged here is a failure to deal with a claim which, while not expressly articulated, was raised squarely on the material or evidence before it: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 at [58], [60] (Black CJ, French and Selway JJ). But for present purposes I am content to consider it on the basis put by the applicant's counsel in submissions: that the Tribunal did not show an active intellectual engagement with the matter of the applicant's health. It is well established that where a statute requires a decision-maker to take a matter into account (or consider it, or have regard to it), the decision-maker must engage in an active intellectual process directed at the matter: Tickner v Chapman (1995) 57 FCR 451 at 462 (Black CJ); NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134; (2005) 147 FCR 51 at [46] (Hill J), [212] (Madgwick J); Lafu v Minister for Immigration and Citizenship [2009] FCAFC 140; (2009) 112 ALD 1 at [49] (Lindgren, Rares and Foster JJ); WZAQU v Minister for Immigration and Citizenship [2013] FCA 327; (2013) 233 FCR 534 at [12]; and Minister for Home Affairs v Ogawa [2019] FCAFC 98; (2019) 369 ALR 553 at [101] (Davies, Rangiah and Steward JJ).

52    Here, Direction 65 required the Tribunal to take into account the applicant's health, as part of assessing the extent of any impediments that he may face if removed from Australia to Liberia in establishing himself and maintaining basic living standards. Given that direction, it is obvious that a diagnosis of schizophrenia, which is being kept under control with antipsychotic medication, is important to the prospects of someone being able to establish a reasonable standard of living if they are returned to Liberia. The passage from Uelese I have set out confirms that is so even though the applicant did not make his mental illness a positive aspect of his case.

53    In view of the evidence I have summarised, the Tribunal's ready acceptance of the Minister's submission that the applicant had no significant health concerns is only explicable on the basis that the Tribunal overlooked the applicant's schizophrenia when it came to consider the extent of impediments facing the applicant if he were removed. The Tribunal's reasons were otherwise comprehensive and it considered the diagnosis in a different part of the reasons. In light of that, and the obvious importance of the diagnosis to an assessment of the applicant's prospects on his return to Liberia, it would be surprising if the Tribunal had engaged in an active intellectual process in relation to the diagnosis and yet remained silent about it when dealing with the question of the applicant's health: cf. NAJT at [212].

54    In my view these things preclude any inference that the Tribunal did not mention the schizophrenia in this part of its reasons because it considered it not to be material: cf. Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [69] (McHugh, Gummow and Hayne JJ). The Minister submitted that the court should approach any such inference with caution. I accept that, but in view of the matters I have outlined I do not think the inference is open here.

55    The Minister also submitted that there was nothing in the psychiatrist's report in the form of a prescriptive and current future regime of treatment for the applicant's schizophrenia. I do not accept that. The psychiatrist said that the applicant was on antipsychotic medication which kept his symptoms 'mostly under control'. There was no suggestion that he could cease taking the medication; to the contrary, the report refers to the need for treatment.

56    It is true that the Tribunal made observations about the lack of a future regime of treatment in the psychiatrist's report. But it did so in the course of considering the likelihood that the applicant would engage in further criminal or other serious conduct if he were to be released into the community. It is easy to see how the lack of a treatment regime would cause the Tribunal concern in that regard. But none of that sheds any light on the different question of whether the applicant needed ongoing psychiatric treatment, and the extent to which he was likely to receive it in Liberia.

57    I therefore find that the Tribunal failed to take into account the applicant's mental health when considering the extent of any impediments that the applicant may face, if removed from Australia to Liberia, in establishing himself and maintaining basic living standards. That was a failure to take the applicant's health into account, which was mandatory under paragraph 14.5(1)(a) of Direction 65. In view of the applicant's condition, the Tribunal should at least have inquired into the extent of mental health support services in Liberia, if any, and considered that in addressing the considerations raised by paragraph 14.5 of Direction 65. Once again, I will consider the question of the materiality of the error at the end of these reasons.

58    I do accept, however, the Minister's submission that the Tribunal did not fall into error in failing to advert to the hand injury. The psychiatrist's report indicated that he injured his thumb while working in an abattoir in 2009 and received a 'payout' of $125,000. But there was nothing cogent before the Tribunal as to the ongoing effect of that condition in 2018. It was open to the Tribunal to discount it as a significant health concern, and not to mention it. I infer that is what the Tribunal did.

Ground 6 - A's evidence

59    The applicant abandoned grounds 4 and 5 of his application, so the only ground remaining to be considered is ground 6. This alleges that certain findings that the evidence of the applicant's partner A was not credible were based on illogical or unreasonable reasoning and a misstatement of her evidence.

60    In the course of considering the nature of harm to individuals or the community should the applicant continue to commit crimes, the Tribunal referred to evidence which A gave on the applicant's behalf. She said she was not concerned that the applicant may commit another act of domestic violence against her. The Tribunal agreed with the Minister that it 'should exercise a degree of caution in receiving her evidence as she has been a victim of the Applicant's domestic violence offending' (paragraph 75). After making that comment the Tribunal went on to explain that it was difficult to believe her evidence, when A had thought that the domestic violence perpetrated on her to date merited reporting to the police and the making of a domestic violence order. She admitted that her relationship with the applicant had been intermittent, and that the applicant had been the subject of a domestic violence order that had effectively prevented him from seeing her between December 2016 and March 2018. The Tribunal found that the relationship was 'strained at its highest'. It found A's evidence to be less than forthright when asked if she and the applicant would continue to be in a relationship if he was released back into the community (paragraph 76).

61    The applicant submitted that the Tribunal did not disclose any logical or probative basis for its finding that A was not credible and said that it is 'perverse to suggest women who have been subject to domestic violence cannot be trusted'. That is an inflammatory and inaccurate characterisation of what the Tribunal found. There was a basis for the Tribunal to approach A's evidence cautiously. That basis, as expressed by the Tribunal, was the tension between her statement that she was not concerned that the applicant would commit another act of violence towards her, and the fact that he had been violent enough in the past to lead her to report him to the police and to obtain a domestic violence order against him. The Tribunal was not expressing any general view that domestic violence victims lack credibility.

62    The applicant also attacked the Tribunal's findings on other bases, which in my view were invitations to impermissible merits review. It was said that there was no evidence that the applicant and A were in a strained relationship, so that finding was not open. But A agreed that their spousal relationship had been on and off and that the applicant had been subject to a domestic violence order. In those circumstances a finding that their relationship was strained was open. It was said that A was never asked whether they would continue to be in a relationship if he was released. But she was asked whether she would let him come and live with her if he was released. They amount to the same thing, and if they do not, that error would be an error of fact finding within jurisdiction. It was said that the Tribunal's treatment of her evidence was unreasonable. But the reasoning of the Tribunal here did not lack justification, transparency and intelligibility, nor did it fall outside the range of possible, acceptable outcomes which are defensible in respect of the facts and law: see Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 at [105] (Gageler J). The justification for the Tribunal's approach is intelligible, and evident on the face of the reasoning as I have summarised it. Whether the findings it made were correct is not for this court to decide.

63    I do not uphold ground 6.

Materiality

64    In summary, I have concluded that the Tribunal fell into error in failing to consider whether revocation of the cancellation of the applicant's visa was, or was not, in the best interests of the children S and J, and in failing to deal with the possible impact of the applicant's schizophrenia on his ability to establish himself and maintain basic living standards if he is removed to Liberia.

65    These breaches of the limitations governing the conduct of the review will only be jurisdictional errors if they were material, in the sense that compliance with those limitations could realistically have resulted in a different decision: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 363 ALR 599 at [45] (Bell, Gageler and Keane JJ).

66    The applicant submitted that each of these errors, considered individually, was material. But he submitted that even if that were not so, the effect of the errors could be found to be material in aggregate. The Minister accepted that in an appropriate case, it would be possible to accumulate errors for the purposes of establishing material jurisdictional error. Both parties rested their positions on Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 359 ALR 1, in particular in the acceptance by Kiefel CJ and Gageler and Keane JJ at [25] that 'jurisdictional error is an expression not simply of the existence of an error but of the gravity of that error' (emphasis in original).

67    The parties' submissions on this point also find support in the following passage from Colvin J's judgment in PQSM v Minister for Home Affairs [2019] FCA 1540 at [88].

… 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.

68    I respectfully agree with this approach.

69    The question of whether compliance with the limits on the Tribunal's functions and powers that were imposed, in this case by Direction 65 could realistically have resulted in a different decision is a question of fact on which the applicant bears the onus of proof: SZMTA at [46]. It is to be determined in a backward looking way, that is by considering what this Tribunal may have done had it not fallen into the errors identified. It is not to be determined by considering what a hypothetical Tribunal conducting the same review in the future might do: PQSM at [64]-[65].

70    Clearly, this Tribunal was very concerned about the prospects of the applicant being released into the community. It concluded that the primary consideration of the protection of the Australian community weighed heavily in favour of the applicant's visa being cancelled. It similarly found that the primary consideration of the expectations of the Australian community also weighed heavily in favour of non-revocation. These conclusions were understandable, in light of the applicant's history of offending, which I have summarised above. The escalating seriousness of that history gave the Tribunal ample cause for concern about what would happen in the future if the cancellation of the applicant's visa were revoked. It would be a short step from that to conclude that the matters which the Tribunal failed to take into account were not material so that its failures to comply with Direction 65 were not jurisdictional errors.

71    However two matters require caution before that step is taken. One is that the court must not itself embark on matters of fact finding or weight which are the province of the Tribunal. In SZMTA at [48] the majority said:

The court must be careful not to intrude into the fact-finding function of the Tribunal. Yet the court must be alive to the potential for a document or information, objectively evaluated, to have been 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.

72    Similarly, it is not for this court to perform itself the function of weighing the various considerations against each other after having regard to the considerations which the Tribunal left out of account. Once it becomes a question of assigning weight to something that the Tribunal did not, in fact, consider, caution is needed lest the court usurp the Tribunal's function.

73    The second matter is that it must always be borne in mind that the task of the court is not to make a finding, on the balance of probabilities, as to what the Tribunal would have done had it taken the missing considerations into account. It is not an assessment of likelihood: Minister for Immigration and Border Protection v CPA16 [2019] FCAFC 40; (2019) 163 ALD 469 at [33]. Rather the question is whether the Tribunal taking the considerations into account could realistically have resulted in a different decision. The way the majority in SZMTA expresses that in the quote above - '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' - confirms that this is not a high threshold.

74    With those matters in mind, I consider that the Tribunal's failure here to take into account the matters which it failed to consider did deprive the applicant of the realistic possibility of a successful outcome. It is necessary to consider the reasoning in which the Tribunal did engage. In relation to the four children whom it did consider, the Tribunal found that the applicant's relationship with two of them was weak or undeveloped (paragraphs 94-95). Although it did say that with the two others the relationship appeared to be stronger and was 'demonstrably genuine' (paragraph 94), it subsequently observed that 'it cannot be said that the Applicant had a particularly involved relationship with any of his four children', and none of the witnesses could give any evidence of him having actively engaged with them or been a positive role model in their lives (paragraphs 99-100). After running through the various specific considerations which paragraph 13.2(4) of Direction 65 made it mandatory to consider, the Tribunal afforded the primary consideration of the best interests of the children neutral weight (paragraph 119). The Tribunal also found that, in view of the applicant's history of violent offending, it was difficult to be convinced that he would play an active and positive role in any of the children's lives (paragraph 97).

75    In relation to S and J, whose interests the Tribunal did not consider, there was evidence that may well have led the Tribunal to reach different conclusions. I have already noted the letter of support by S's mother, A, to the effect that S saw the applicant as 'her true father', how he would 'smother her with love' and how he 'filled all the duties one would expect from the biological father who had little or nothing to do with [S]'. I have also referred to J's own evidence that the applicant had a big positive impact on her life and had become like a father figure to her. Considering this evidence may well have led the Tribunal to find that the applicant did play an active and positive role in the lives of S and J. Paragraph 9.2(3) of Direction 65 required the Tribunal to give individual consideration to the best interests of each child to the extent that their interests may differ. Doing that for S and J in light of the evidence to which I have referred could have led the Tribunal to give the best interests of the children weight in favour of revoking the cancellation. That would have put a different complexion on an aspect of the decision which involved one of the primary considerations. That is enough, in my view, to give rise to a realistic possibility that the outcome of the review could have been different. I find that the error of failing to make a determination about the best interests of S and J was, by itself, material in the sense explained in SZMTA, and was therefore a jurisdictional error.

76    In the circumstances it is not necessary to make a finding about whether the other error, of failing to take account of the applicant's mental health, was also material by itself. I need only observe that the prospect that a man with a serious mental illness may be returned to a country which he fled after experiences which one sentencing judge called 'horrific', where he has no obvious support networks, is one which gives rise to serious concern. Putting it in the way it was put in SZMTA, that is not a concern of 'marginal significance'. It is enough to say that this, in accumulation with the failure of the Tribunal to consider the best interests of S and J, reinforces the conclusion that the Tribunal's errors were jurisdictional errors.

77    For completeness, I will mention two other grounds, in relation to which I have found the Tribunal made no error. They are the alleged misconstruction of paragraph 14.2(1) of Direction 65, about strength, nature and duration of ties to Australia, and the alleged misunderstanding of the applicant's evidence about the paternity of the child M. Even if I am wrong that the Tribunal did not fall into error about those matters, I find that any such errors would not have been material individually and would have made no significant contribution to the question of materiality if considered in the aggregate with other errors. As I have said, the misconstruction of the role of paragraph 14.2(1)(a)(i) did not lead the Tribunal to put less weight on the 'ties to Australia' consideration as a whole than it otherwise would have. And since there was no evidence that the applicant had a relationship with M, considering that child's interests would not have made any difference to the outcome anyway.

Conclusion

78    I uphold ground 2 and ground 3, to the extent of finding that the Tribunal fell into jurisdictional error in failing to make a determination about the best interests of S and J and in failing to take the applicant's mental illness into account when considering the extent of any impediments the applicant will face if he is removed to Liberia. The Tribunal's decision will be set aside and the matter will be remitted to the Tribunal to decide according to law.

Associate:

Dated:    31 October 2019