FEDERAL COURT OF AUSTRALIA

Downes v Minister for Home Affairs [2020] FCA 54

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 27 March 2019.

3.    A writ of mandamus issue directed to the second respondent requiring it determine the applicant’s application for review under s 500(1)(ba) of the Migration Act 1958 (Cth) according to law.

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

REASONS FOR JUDGMENT

CHARLESWORTH J:

1    Aaron Dwayne Downes is a citizen of New Zealand. He has resided in Australia since 2005, most recently as the holder of a Class TY Subclass 444 Special Category (temporary) visa issued under the Migration Act 1958 (Cth). Following his arrival in Australia, Mr Downes committed a series of criminal offences, including acts of violence against women. As a result of his criminal offending Mr Downes is a person who has a “substantial criminal record” and so cannot pass the character test prescribed in s 501(6)(a) of the Act.

2    On 23 February 2018, Mr Downes’ visa was cancelled mandatorily on character grounds under s 501(3A) of the Act (the cancellation decision). A delegate of the Minister for Home Affairs decided not to exercise a power conferred by s 501CA of the Act to revoke the cancellation of the visa (the non-revocation decision). On Mr Downes’ application, the non-revocation decision was reviewed by the Administrative Appeals Tribunal in the exercise of powers conferred by s 500(1)(ba) of the Act.

3    The Tribunal affirmed the non-revocation decision.

4    Mr Downes now invokes the jurisdiction conferred on this Court under s 476A of the Act to judicially review the Tribunal’s decision. The onus is on Mr Downes to show that the Tribunal’s decision is affected by a jurisdictional error: s 474 of the Act; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476, Craig v South Australia (1995) 184 CLR 163.

5    Two grounds for judicial review are pressed, each alleging that the Tribunal failed to comply with a direction issued by the Minister under s 499 of the Act (Direction 79). The first ground is to the effect that the Tribunal failed to properly construe and apply the requirements of Direction 79 concerning the duration and nature of Mr Downes’ ties to Australia. The second ground asserts a failure by the Tribunal to consider the best interests of four minor children said to be affected by the decision.

6    I will deal with the grounds in reverse order.

BEST INTERESTS OF MINOR CHILDREN

7    Following the mandatory cancellation of his visa, Mr Downes was given a written notice of the decision and an invitation to make representations to the Minister as to why it should be revoked: see s 501CA(3) of the Act.

8    Section 501CA(4) provides:

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

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

   (b)    the Minister is satisfied:

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

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

9    As Mr Downes could not pass the character test, the question to be determined by the Minister (and by the Tribunal in the exercise of its powers on review) was whether there was another reason why the cancellation decision should be revoked.

10    In exercising the discretion conferred by s 501CA(4), the Tribunal was bound to comply with Direction 79, issued by the Minister on 28 February 2019: s 499(3) of the Act. Paragraph 7 of Direction 79 is titled “How to exercise the discretion”. It requires the decision-maker to take into account the considerations in Pt C in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked. Paragraph 8 requires the decision-maker to take into account the primary and other considerations “relevant to the individual case”. Paragraph 8.4 provides that primary considerations should generally be given greater weight than the other considerations.

11    Under Pt C, the three primary considerations informing the exercise of the discretion to revoke the mandatory cancellation of a visa are the protection of the Australian community from criminal and other serious conduct, the best interests of minor children in Australia and the expectations of the Australian community. In relation to minor children, [13.2] requires:

13.2    Best interests of minor children in Australia affected by the decision

(1)    Decision-makers must make a determination about whether revocation is in the best interests of the child.

(2)    This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to revoke or not revoke the mandatory cancellation decision is expected to be made.

(3)    If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.

(4)    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.

12    Mr Downes is the natural father of three children: a daughter from a previous relationship with Ms A, a son from a previous relationship with Ms B and a daughter from his current relationship with Ms C. They are referred to in the reasons of the Tribunal as Child A, Child B and Child C respectively. Each of them is given consideration in the Tribunal’s reasons and there is no suggestion that the Tribunal misapplied [13.2] of Direction 79 in respect of any one of them. The Tribunal considered it to be in the best interests of each of Child A, Child B and Child C that the cancellation decision be revoked. However, little weight was given to the best interests of Child A or Child B. The Tribunal did not consider that there would be any tangible effect on those children arising from the deportation of Mr Downes because he did not have any meaningful contact or existing relationship with them.

13    The Tribunal afforded considerable weight to the best interests of Child C, having regard to Mr Downes’ stated intention to play an active parental role in her life and his ongoing and committed relationship with Ms C. In its concluding paragraphs the Tribunal said:

152.    After much reflection, I have decided I agree with the Minister’s contentions. I have however hesitated on account of my conclusion that the best interests of Child C is served by allowing Mr Downes to remain. Ultimately, I am persuaded that the other two primary considerations outweigh Child C’s best interests in all the circumstances. In particular, where Mr Downes in my view represents an unacceptable risk of harm to the community on account of the nature of his offending and the real chance that it will again be repeated, I consider the Australian community would expect that Mr Downes not be permitted to remain in Australia. This is particularly so in my view where Mr Downes has previously been warned about visa cancellation arising out of violent offending, yet has then committed a violent offence against a woman.

153.    I am to decide if there is any reason why the decision to cancel Mr Downes’ visa should be revoked, with my consideration of this issue exercised in accordance with the Direction.

154.    For the reasons expressed, I do not find that there is another reason to revoke the visa cancellation, and I affirm the decision under review.

14    Ms C has four children from previous relationships, all of whom have been removed from her care. They are described in the originating application as Mr Downes’ step-children, a description that tends to suggest that Mr Downes plays a parental role in connection with them. I will refer to them more neutrally as Ms C’s other children.

15    In its written reasons for decision, the Tribunal correctly stated that Ms C has five children and that only Child C resided in her care. There is no other reference to Ms C’s other children in the reasons. For the purposes of this application there is no dispute that the Tribunal gave no consideration to their best interests in determining whether or not the cancellation decision should be revoked. The questions arising under [13.2(a)] to [13.2(h)] of Direction 79 were not asked in respect of any of them.

16    Before turning to the submissions on the appeal it is necessary to summarise the material before the Tribunal that may be relevant to the interests of Ms C’s other children and to make some initial observations about how the hearing before the Tribunal progressed.

17    Mr Downes was self-represented in the proceedings before the Tribunal.

18    Upon the cancellation of his visa, Mr Downes completed a standard personal circumstances form, which he submitted to the Minister’s delegate. Under the heading “MINOR CHILDREN (children under 18 years of age)” the form contained this statement:

The best interests of minor children are a primary consideration of the decision-maker so it is in your interest to include as much information as possible regarding any minor children who may be affected by your visa cancellation. …

19    The standard form prompted Mr Downes to provide details of “all minor children in your life (including biological children, step-children, grandchildren, close nieces and nephews etc)”. Mr Downes listed only Child C. Similarly, when prompted to describe “your relationship with each child, including when it began, how often you contact/see the child/ren and the role you play in their lives” (original emphasis), Mr Downes confined his response to Child C. Among other things, he submitted that it was possible that Ms C would not be able to enter New Zealand if he were to be deported there, because of her own serious criminal offending.

20    Although Mr Downes had made no reference to Child A or Child B in his submissions to the delegate, the delegate assessed the interests of those children on the limited information that had been provided by Mr Downes some years earlier when a decision to cancel his visa was foreshadowed (but not then made). Unsurprisingly, the delegate’s reasons make no reference to Ms C’s other children.

21    In the proceedings before the Tribunal, the Minister prepared a “Statement of Facts, Issues and Contentions”. It referred to the interests of Child A, Child B and Child C. In a reply prepared by Mr Downes, no mention was made of Ms C’s other children.

22    On its review, the Tribunal had before it a letter from Ms C dated 15 February 2019, commencing with this paragraph:

He was good to my kids, he loves our daughter [Child C] very much and he gave me some hope that she might be able to grow up in a better way and that I might be able to learn and grow and be able to give something back to help my community. Even though we had some problems, he supported us and looked after us.

23    Ms C gave oral evidence before the Tribunal as did her social worker. They were each questioned by the Minister’s lawyer and by the Tribunal member.

24    When asked whether she had any children, Ms C responded “five”. When asked whether she had any children with Mr Downes, she named Child C. Later, in response to further questioning, Ms C told the Tribunal the names of all of her children, their ages and the places where each of them resided. In the course of doing so, Ms C named a 14 year old daughter who lives in Alice Springs (the same place where Ms C had resided with Mr Downes). The Tribunal heard that Ms C spent time with that daughter who at times absconded from state care. Ms C said that if she relocated from Alice Springs to Adelaide, she should be able to continue to see that daughter and her other children who had also been placed in state care. The social worker confirmed that Ms C had an “ongoing relationship” with her 14 year old daughter and her other children. In relation to the suggestion that Ms C might move to New Zealand to be with Mr Downes, the social worker said that “would not be an option” because Ms C would not then be able to maintain a relationship with her 14 year old daughter. The social worker confirmed that her evidence in that regard applied to all of Ms C’s other children.

25    The Minister’s lawyer asked Ms C whether there was any chance that she could emigrate to live with Mr Downes in New Zealand if he were “not allowed to stay in Australia”. Ms C replied:

Well I don’t think – what if they don’t let me in? That’s going to be very hard for both of us. And it is going to be very very bad for daughter to grow up without a father. And that is very sad.

26    Ms C did not raise the interests of her other children as a reason why she could or would not relocate to New Zealand.

27    Additional questions and answers about the prospect of Mr Downes’ deportation proceeded as follows:

MEMBER:    I just have a very brief question and it really is a hypothetical one. … I do have to sometimes think what will happen if I ultimately decide that ... Mr Downes isn’t able to stay in Australia, and you’ve mentioned that you don’t think you will be able to travel to New Zealand and I don’t know whether that’s right or not but would [Child C] be able to travel to New Zealand?

 Ms C:        She’s too little.

MEMBER:    Yeah I appreciate that. Would ... Mr Downes be able to raise [Child C] in New Zealand if the two of you decided that that was for the best?

 Ms C:        Why wouldn’t (indecipherable) be here?

MEMBER:    I’m not saying it would be I’m just asking whether you’ve ever considered that?

 Ms C:        Well I need her too.

 MEMBER:    You need her too? Oh.

 Ms C:        Yeah.     Right now we both need her.

…

MEMBER:    Alright, is there anything else you wanted me to know about this – this case? Anything you thought you’d want to say that you haven’t yet said?

Ms C:    Well um I just wanted to say you know kids need their both parents there to look after … I think … every kid needs their parents … To take care of them.

28    Mr Downes declined an opportunity to ask any further questions of Ms C or the social worker. He made no submission to the Tribunal that Ms C’s other children would be affected by any decision not to revoke the cancellation decision. Nor did the lawyer representing the Minister make any submission to that effect.

Submissions on the appeal

29    On appeal, Counsel for Mr Downes contended that the Tribunal failed to complete its statutory task because it had not made any determination about where the best interests of Ms C’s other children lay.

30    Counsel submitted that given the statutory provisions defining the Tribunal’s functions and powers, including the terms and subject matter of [13.2] of Direction 79, the Tribunal ought not to be regarded as confined to the matters raised in the “case” presented by the parties. The obligation to consider the best interests of Ms C’s other children arose because of the Tribunal’s awareness of their existence: Uelese v Minister for Immigration and Border Protection (2015) 256 CLR 203. It was submitted that the omission was material because the interests of Ms C’s other children would have been assessed in much the same way as the interests of Child C such that, had their interests been afforded some weight, there was some chance that there may have been a favourable outcome.

31    Counsel for the Minister acknowledged that proceedings before the Tribunal were inquisitorial and that the Tribunal was not confined in the exercise of its jurisdiction to the “case” formally presented by the parties. It was submitted that for an obligation to arise for the Tribunal to consider a claim or representation not expressly advanced, the claim or representation must clearly emerge from the materials, in accordance with the principles stated by the Full Court of this Court in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at [58], [63], [68]. It was submitted that those principles apply equally in cases before the Tribunal involving the exercise of the power under s 501CA(4) and in the context of a review conducted pursuant to s 500(6) of the Act: Hong v Minister for Immigration and Border Protection [2019] FCAFC 55 at [66] (Bromwich and Wheelahan JJ). It was submitted that no case had been advanced by Mr Downes in connection with the interests of Ms C’s other children, nor could it be said that any case had clearly arisen on the materials before the Tribunal. As to materiality, Counsel submitted that there was such a paucity of evidence before the Tribunal about Ms C’s other children that it was in no position to make a meaningful determination about where their best interests might lie. Accordingly, it was submitted, any error in failing to consider the best interests of the other children could not have materially affected the outcome and so could not be regarded as jurisdictional.

Consideration

32    I have concluded that in all of the circumstances the Tribunal was obliged to consider whether a refusal to revoke the cancellation decision would be in the best interests of Ms C’s other children. I am satisfied that the Tribunal erred in failing to recognise the other children as persons whose interests were “relevant to the individual case” within the meaning of [8] of Direction 79 and so failed to consider the matters stated at [13.2] of Direction 79 in respect of them.

33    I am further satisfied that the error is material and so constitutes a jurisdictional error.

Principles

34    Direction 79 does not require that the Tribunal make a binary choice as to whether or not cancellation of the non-citizen’s visa is or is not in the best interests of minor children in Australia. In Uelese, French CJ, Kiefel, Bell and Keane JJ said, of an equivalent direction (at [67]):

It is not necessary here to seek to chart the boundaries of the Tribunal’s obligation to inquire after the best interests of the children of an applicant for review. There may be cases, hopefully rare, where the evidence presented by the parties does not alert the Tribunal that minor children in Australia may be affected by the decision. There may also be cases where the evidence is such that the only determination which can be made in obedience to cl 9.3(1) of Direction 55 is that cancellation is neutral so far as the best interests of any minor child are concerned. In this regard, it is to be noted that cl 9.3(1) requires a ‘determination about whether cancellation is, or is not, in the best interests of the child’ (emphasis added). Sometimes the best decision ‘about’ whether cancellation is, or is not, in the best interests of the child may be that it is neither.

35    In other cases, it may not be possible to make any determination because of the paucity of evidence upon which any determination might sensibly be made. As Buchanan J said in Paerau v Minister for Immigration and Border Protection (2014) 219 FCR 504 (at [27]):

In my respectful view, there could be no objection in any case to the AAT concluding that the best interests of a child did not weigh either for or against the cancellation of a visa, so long as the available material was assessed conscientiously. That is not the same as not stating a conclusion about the issue at all. Similarly, in a case where the evidence did not permit a proper conclusion about the issue, there could be no objection to the AAT saying so, as it did in the present case.

(emphasis in original)

36    Perry J said at [118]:

… the Tribunal lawfully decided that it was unable to make the determination required by cl 9.3(1) of Direction No 55. In substance, the finding equates in the language of the Direction to a finding that the consideration was not ‘relevant’. In effect, the Tribunal decided that it had insufficient probative material available to it to be able to embark upon the determination otherwise required by cl 9.3(1) and (3) and in those circumstances, in my opinion, the precondition to the obligation in cl 9.3(1) (relevancy in the particular case) was not satisfied. So read, this is not a case where the Tribunal made findings on the evidence before it on matters relevant to determining where the best interests of children lie, but failed to complete that process by determining what was in their best interests and taking that into account in balancing that primary consideration against the other considerations: cf Spruill v Minister for Immigration and Citizenship (2012) 135 ALD 45 (Robertson J).

37    In Uelese the High Court quashed a decision of the Tribunal affirming a decision not to revoke the cancellation of Mr Uelese’s visa. The Tribunal had held that s 500(6H) of the Act precluded its consideration of the interests of two of Mr Uelese’s natural children. The existence of the children had not been disclosed by Mr Uelese either to the Minister or to the Tribunal. A witness had disclosed their existence in the course of cross-examination either by the Minister’s Counsel or by the Tribunal member. Section 500(6H) of the Act provided that the Tribunal must not have regard to information presented orally in support of an application for review unless the information had previously been provided in a written statement to the Minister at least two days before the hearing. The Tribunal did not consider the children’s interests because it considered itself precluded by s 500(6H) from doing so.

38    On judicial review, the primary judge accepted the Tribunal’s view as to the effect of s 500(6H). The Full Court of this Court dismissed an appeal, concluding that s 500(6H) operated as a constraint on the Tribunal’s obligation under s 499 to comply with Direction 55 (as then issued under s 499 of the Act).

39    The High Court made orders setting aside the judgment of the Full Court and quashing the decision of the Tribunal. Speaking of [9.3] of Direction 55 the majority said:

60    It is of particular importance that, in the circumstances of the present case, the Tribunal’s erroneous understanding of s 500(6H) precluded it from making a determination about whether cancellation of the appellant’s visa was or was not in the best interests of each of his children in Australia.

61    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.

62    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.

63    In Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs, 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 Act. It is true, as the Full Court of the Federal Court rightly observed in Jagroop, 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.

64    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’.

(footnotes omitted, emphasis added)

40    In the present case, the Minister submitted that the principles stated by the High Court in Uelese can have no application in a case in which there has been no error by the Tribunal in the exercise of its functions or powers. Unlike Uelese, the Tribunal had not considered itself to be constrained by s 500(6H) of the Act.

41    Counsel submitted that the test for determining whether there was an obligation on the part of the Tribunal to consider the interests of Ms C’s other children was that re-stated by the Full Court of this Court in Hong. That case concerned the cancellation of the visa of a citizen of China on character grounds. As in the present case, the non-citizen made an application to the Tribunal for review of a decision not to revoke the cancellation of the visa. In a written representation to the Minister advancing reasons why the cancellation should be revoked, the applicant had stated that prior to leaving China she had assisted a social justice organisation. She claimed that if she were to be returned to China she may lose her job as a teacher and may not be able to return to the profession. In proceedings before the Tribunal, no further reference was made to that claim by the applicant or her legal representatives, whether in the course of the hearing or in her Statement of Facts, Issues and Contentions. On her application for judicial review, the applicant submitted that the Tribunal had committed jurisdictional error by making no specific finding in relation to the issue of her involvement with the social justice organisation. The primary judge applied the principles stated in AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503 at [18] relating to the Tribunal’s duty to consider issues arising on the materials before it. The same principles are relied upon by the Minister in the present case. It is convenient to extract them in full:

It is common ground that nothing in the statutory constraints to be found within Pt 7AA of the Migration Act (as discussed, for example, in BMB16 v Minister for Immigration and Border Protection (2017) 253 FCR 448 per Dowsett, Besanko and Charlesworth JJ) affects the relevant existing case law on this topic, namely, the duty to consider claims and issues arising from material before it as that law applies to the Administrative Appeals Tribunal under Pt 5 of the Migration Act. In that regard, we note that:

•    The Tribunal review function requires it to consider all claims made by an applicant and its essential components or integers: Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136 (Htun) per Allsop J (as the Chief Justice then was) (at [42]), with whom Spender J agreed.

•    The Tribunal is only required to consider such claims where they are either:

(a)    the subject of substantial clearly articulated argument, relying on established facts; or

(b)    clearly emerge from the materials: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 (NABE) per Black CJ, French and Selway JJ (at [55] and [68]) and AWT15 v Minister for Immigration and Border Protection [2017] FCA 512 (AWT15) per Barker J (at [67]).

•    These principles apply to the IAA regime: Minister for Immigration and Border Protection v BBS16 (2017) 257 FCR 111 per Kenny, Tracey and Griffiths JJ (at [79]) where their Honours said:

… A body such as the IAA, which is conducting an inquisitorial review process in which there is a claim for protection under s 36(2)(a) of the [Migration] Act must not only consider and determine the case as articulated by the protection visa applicant, but also do so in relation to an unarticulated claim which is nevertheless raised clearly or squarely on the material before that review body (see NABE at [58]-[61] per Black CJ, French and Selway JJ).

(Emphasis added.)

•    As to whether a claim clearly emerges, the following principles were collected in AWT15 by Barker J (at [67]-[68]):

(a)    such a finding is not to be made lightly (NABE at [68]);

(b)    the fact that a claim might be said to arise from materials is not enough (NABE at [68]);

(c)    to clearly emerge from the materials, the claim must be based on ‘established facts’ (SZUTM v Minister for Immigration and Border Protection (2016) 241 FCR 214 (SZUTM) per Markovic J (at [37]-[38])). In SZUTM, Markovic J said:

37    While the tribunal is not required to deal with claims which are not clearly set out and which do not clearly arise from the material before it, the tribunal is not limited to dealing with claims expressly articulated by an applicant. A claim not expressly advanced by an applicant will attract the review obligation of the tribunal when it is plain on the face of the material before it.

38    Both the appellant and the Minister have made submissions on whether there is a requirement that there be a claim based on ‘established facts’. At [35], the primary judge found, relying on NABE and Dranichnikov that, as the threshold point the claim must ‘emerge clearly from the materials before the Tribunal and should arise from established facts’. I agree with the primary judge’s approach: the decision in NABE must be read in light of the principle set out in Dranichnikov.

(d)    while there is no precise standard to determining whether an unarticulated claim has been ‘squarely raised’ or ‘clearly emerges’ from the materials ‘a court will be more willing to draw the line in favour of an unrepresented party’: Kasupene v Minister for Immigration and Citizenship (2008) 49 AAR 77 per Flick J (at [21]); and

(e)    understanding whether a claim has clearly emerged from materials cannot be assessed in a vacuum. Consideration must be given to the way an applicant’s claims are presented over time.

(emphasis in original)

42    In Hong, the primary judge rejected the argument that the principles AYY17 were limited to claims made in the statutory context of an application for a protection visa and inapplicable on the review of a decision not to revoke a cancellation decision on character grounds. The Full Court (Bromwich and Wheelahan JJ, Logan J dissenting) found no error in the approach of the primary judge.

43    The majority surveyed the judgments of single justices and the Full Court applying the principles in AYY17 in the statutory context of a review conducted pursuant to s 500(1)(ba) of the Act: Minister for Home Affairs v Buadromo [2018] FCAFC 151; 362 ALR 48 at [41] (Besanko, Barker and Bromwich JJ); Minister for Immigration and Border Protection v DRP17 [2018] FCAFC 198 (Jagot, Rangiah and Banks-Smith JJ). The majority went on to say (at [69]):

…  At the heart of the guidance in AYY17 is the idea that the Tribunal is only required to consider matters that are raised by argument, or which clearly emerge from the materials. That is equally so in relation [to] matters advanced in proceedings before the Tribunal involving reviews of decisions under s 501CA(4) of the Act, where the section contemplates that the former visa-holder may advance matters by way of representation directed to why the power of revocation should be exercised.

44    The majority went on to consider the particular circumstances of the case (including the circumstance that the appellant was legally represented before the Tribunal and had been afforded a fair opportunity to advance and develop her case at the hearing) before concluding (at [71]) that:

… the Tribunal addressed the case that had been maintained by the appellant before the Tribunal. Given that it was for the appellant to place before the Minister’s delegate, and in turn the Tribunal, the matters that she wished to have taken into account in aid of the exercise of the power to revoke under s 501CA(4), having regard to the procedures adopted by the Tribunal in this case, including taking evidence, the filing of contentions, and the hearing of submissions, there was no error by the Tribunal in not referring to a matter in the personal circumstances form that had not been maintained before the Tribunal.  …

45    The High Court refused an application for special leave in Hong, it seems on the basis that the proposed grounds of appeal raised no issue of principle: Hong v Minister for Immigration and Border Protection & Anor [2019] HCATrans 230.

46    Returning to the present case, argument proceeded on the basis that the judgment in Uelese erected a different test than that erected in Hong. In Uelese it was said that an obligation to consider the best interests of minor children arose if the existence of the children came to the Tribunal’s attention, whereas in Hong the obligation only arose in relation to matters that clearly emerged on the material before it.

47    If there be a difference in the principles stated in Uelese on the one hand and Hong on the other I do not consider it to be a difference upon which this case turns.

48    In each case, whether jurisdictional error had occurred was dependent not only upon the statutory context but also upon the specific circumstances of the case. The statutory context in Uelese included an obligation to have regard to the interests of minor children in Australia as a primary consideration. That obligation did not form a part of the statutory context considered in Hong or the authorities referred to therein. The Full Court in Hong did not refer to the decision of the High Court in Uelese, I infer for that reason. As the majority in Uelese said, the obligation itself is not cast in terms dependent upon the review applicant or the Minister advancing a positive case as to where the interests of a particular child might lie.

49    In Uelese, the fact that the Tribunal was in possession of information to the effect that the children existed was sufficient to found error. It is not insignificant that the particular information coming to the attention of the Tribunal in Uelese revealed that there were two children in existence who were the natural children of the non-citizen. As his natural children they were clearly entitled expect his financial and emotional support for their advancement in life and so it was plain that their interests may be affected by the decision.

50    The circumstance that a father does not disclose the existence of his natural children may well be taken into account in determining where the best interests of the children may lie. But it cannot provide a legal justification for a decision-maker’s failure to conscientiously consider whether and how the interests of such children might be affected upon their existence coming to the decision-maker’s attention. Whether or not there is sufficient material before the Tribunal to make a determination one way or another is a separate question bearing on the materiality of any erroneous failure to consider the issue.

51    On the facts in Uelese, the children were clearly children to whom the relevant direction applied, whether or not Mr Uelese or the Minister had made any submissions in relation to them. It seems to me that jurisdictional error would be established on the particular facts in Uelese, even if the test articulated in Hong were to be applied. The Minister’s arguments as to materiality were rejected because the paucity of evidence was explained by the Tribunal erroneously precluding the receipt of further material.

Application of principles

52    In the present case, the fact that Ms C was the mother of four children (in addition to Child C) was known to the Tribunal. Their existence emerged from answers elicited from questions directed to Ms C by the Minister’s lawyer and by the Tribunal member. Specific information was elicited about their ages and their places of residence. The circumstance that Ms C had an ongoing relationship with them (and regularly saw one of them) was elicited, also in an inquisitorial fashion.

53    Given Mr Downes’ self-represented status in the proceedings before the Tribunal, it was not open to the Tribunal to conclude that the interests of the children would not be affected by the decision merely because he had made no representations about them. There may be cases in which a self-represented litigant does not appreciate the applicability of Direction 79 to children other than the litigant’s natural children. There may be rare cases in which a non-citizen elects not to mention the existence of affected children because he or she perceives (rightly or wrongly) that the interests of the children do not coincide with his or her own.

54    Unlike the situation in Uelese, the children were not the natural children of Mr Downes. Without more, the revelation of their existence would not have been sufficient to invoke an obligation to consider their interests.

55    However, as the Tribunal acknowledged, the case before it involved a family situation of considerable complexity. Bearing in mind that complexity, there are a number of additional circumstances known to the Tribunal that indicated that Ms C’s other children may be affected by the decision, including:

(1)    Ms C had stated in her letter of 15 February 2019 that Mr Downes was good to her “kids”. Whilst the letter may not have been sufficient of itself to alert the Tribunal to the possibility that Ms C’s other children might be affected by the decision, viewed in the totality of the evidence as a whole, the letter ought reasonably be construed as suggesting that at least one of Ms C’s other children had had some positive contact with Mr Downes in the past.

(2)    The circumstance that Ms C continued to maintain relationships with her children and the circumstance that her 14 year old daughter regularly returned to their home in Alice Springs precludes an assumption that Mr Downes would play no role at all in the lives of Ms C’s other children should he remain in Australia.

(3)    On the material before the Tribunal, it was apparent that Mr Downes had a stabilising and protective influence in his family home despite his previously having committed an assault on Ms C. The Tribunal’s reasons disclose that the deportation of Mr Downes would have a significant negative effect on her. It could not be assumed that Ms C’s other children would not in turn be affected by the further upheaval in their mother’s life resulting from Mr Downes’ removal from Australia, notwithstanding that he had not positively expressed any aspiration to establish or maintain a parental relationship with them.

(4)    Ms C’s other children had an interest in establishing or maintaining a relationship with their half-sibling, Child C. The Tribunal’s questioning and reasoning suggest that there was some possibility that Child C might be placed in Mr Downes’ custody in New Zealand should he be deported. At the very least, that possibility could not be precluded, especially given the social worker’s evidence confirming the complexity of the family circumstances.

56    I infer from the Tribunal’s reasons that it proceeded on the erroneous assumption that Ms C’s other children were not minor children whose interests were “relevant to the individual case”. I conclude that it was for that reason that the interests of the other children were not conscientiously considered against the matters referred to in [13.2] of Direction 79. In all of the circumstances, it was not open to the Tribunal to proceed on the assumption that the children were not relevant. The Tribunal’s awareness of the existence of the other children did not arise in a vacuum. The significance of its awareness must be considered in light of all of the material.

57    The Tribunal’s failure to recognise the other children as relevant had the result that it failed to complete its statutory task and so fell into error.

58    It remains to consider whether that error was material.

Materiality

59    As the High Court (Kiefel CJ, Gageler and Keane JJ) said in Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123:

29    That a decision-maker ‘must proceed by reference to correct legal principles, correctly applied’ is an ordinarily (although not universally) implied condition of a statutory conferral of decision-making authority. Ordinarily, a statute which impliedly requires that condition or another condition to be observed in the course of a decision-making process is not to be interpreted as denying legal force and effect to every decision that might be made in breach of the condition. The statute is ordinarily to be interpreted as incorporating a threshold of materiality in the event of non-compliance.

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

31    Thus, as it was put in Wei v Minister for Immigration and Border Protection, ‘[j]urisdictional error, in the sense relevant to the availability of relief under s 75(v) of the Constitution in the light of s 474 of the Migration Act, consists of a material breach of an express or implied condition of the valid exercise of a decision-making power conferred by that Act’. Ordinarily, as here, breach of a condition cannot be material unless compliance with the condition could have resulted in the making of a different decision.

(footnotes omitted)

60    The nature of the error in this case is a failure to consider an issue the decision-maker was bound in law to consider. The test for materiality of the breach is not whether compliance with the conditions on the exercise of the decision-making power would have resulted in the making of a different decision, but whether it could have: Hossain at [31]; EVS17 v Minister for Immigration and Border Protection [2019] FCAFC 20 at [42].

61    For the Minister it was submitted that there was no evidence upon which the Tribunal could have made any meaningful assessment about the best interests of Ms C’s other children. As a consequence, it was submitted, any consideration of their interests could not have resulted in an assessment weighing in favour of the cancellation decision and so could not have materially affected the outcome.

62    As I have already identified, a decision-maker will not commit jurisdictional error if, after conscientiously considering the issue, it is unable to make a sensible assessment on the material before it about the best interests of a known child whose interests may be affected by its decision. In this case, no consideration was given to the question at all.

63    Had consideration been given, it would have been open to the Tribunal (even on the limited material before it) to conclude that it was in the best interests of Ms C’s other children for Mr Downes to remain in Australia in a committed relationship with Ms C. That is particularly so in relation to Ms C’s 14 year old daughter who, on the evidence of the social worker, had regular contact with her mother in the Alice Springs home where Mr Downes also resided.

64    The weight to be afforded the interests of the other children is a matter for the Tribunal. The Tribunal’s concluding statements indicate that the countervailing considerations were finely balanced. I have concluded that it was open to the Tribunal to afford some favourable weight to the best interests of Ms C’s other children. Accordingly, it cannot be said that its error could not have affected the outcome.

65    Moreover, I would not accept without qualification the Minister’s submission that the circumstance that there was paucity of evidence was unrelated in a causal sense to any error by the Tribunal in the performance of its functions or the exercise of its powers. In my view, it cannot be said that the Tribunal’s hearing would have proceeded in the manner that it did had the Tribunal not made the erroneous assumption I have identified at [56] above. Apart from the error I have identified, the Tribunal appears to have conducted the hearing conscientiously, eliciting evidence from the witnesses that it considered to be relevant by its own questioning. Quite properly, it did not consider itself to be confined to the material adduced by Mr Downes in support of his “case” as a self-represented applicant. If there be a paucity of evidence in relation to Ms C’s other children I am satisfied that is explained in part by the erroneous confinement of the Tribunal’s inquisitorial functions under [13.2] of Direction 79 to the interests of Child A, Child B and Child C.

66    That is not to say that Mr Downes was deprived of a fair opportunity to present his “case” in relation to the matters dealt with in the Tribunal’s reasons. However, the unique subject matter of [13.2] is not amenable to language that simplifies the decision-maker’s inquiry into a contest between two opposing cases. The children to whom [13.2] of Direction 79 is directed are not typically represented before the Tribunal. Their interests will not in all cases align with the “case” of one party or another. It is difficult to conceive of a factual subject matter more suited to the Tribunal’s inquisitorial function. The performance of that function involves the exercise of a wide array of discretions as to whether and how materials in the nature of evidence are to be obtained. Misapprehension of the issues to be determined on an application for review may affect the exercise of those discretions and so, in turn, affect the quality and quantity of evidentiary material upon which the decision must ultimately be based.

67    As in Uelese, it is not necessary in this case to chart the outer boundaries of the Tribunal’s inquisitorial powers. On the facts it cannot be said that the Tribunal would not have exercised its discretion to invite the parties to adduce further evidence or to advance submissions about the children’s best interests, had it not erroneously assumed their interests were not relevant. Upon remittal of the application for review to the Tribunal, it will remain open to the Tribunal to do so. Whether or not the Tribunal is obliged to do so was not the subject of submissions before me and I express no concluded view on the question.

68    This ground for judicial review should be upheld.

DURATION AND NATURE OF TIES

69    This ground is expressed as follows:

2.    The Second Respondent failed to complete its statutory task and made a jurisdictional error by misconstruing and misapplying paragraph 14.2(1) of Direction 79.

Particulars

a.    There is a requirement in paragraph 14.2(1)(a) of Direction 79 that less weight be given to that sub-consideration where a non-citizen begins offending soon after arriving in Australia.

b.    The Tribunal applied this requirement to the consideration at paragraph 14.2(1) as a whole rather than solely to the sub-consideration at paragraph 14.2(1)(a) as required.

70    Paragraph [14.2] of Direction 79 provides:

14.2    Strength, nature and duration of ties

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

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

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

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

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

71    The principles to which [14.2(1)] refers are, relevantly:

6.3    Principles

…

(5)    Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.

…

(7)    The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.

72    The parties are not in dispute as to the proper construction of [14.2]. The agreed position is that the consideration in [14.2(a)] (length of time residing in Australia) is subject to the requirement that it be afforded less weight where the non-citizen began offending soon after arriving in Australia but the consideration in [14.2(b)] (strength, nature and duration of ties) is subject to no such requirement. That construction is consistent with authority and with the ordinary meaning of the text of Direction 79 as a whole, including the principles stated in [6.3].

73    As Thawley J said in FCFY v Minister for Home Affairs (No 2) [2019] FCA 1990, a decision-maker may fall into jurisdictional error if it proceeds on the misapprehension of [14.2]:

59    The Tribunal’s language, read fairly in accordance with the principles earlier identified, indicates that the Tribunal misunderstood cl 14.2(1). The Tribunal thought that paragraph (a)(ii) required it to give less weight to how long a non-citizen had resided in Australia if there had been limited positive contribution to the Australian community. Paragraph (a)(ii) does not operate in that way. It provides that, where there was positive contribution to the Australian community, there should be an increase in the weight given to ‘how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child’. Paragraph (a)(ii) did not require a decrease in the weight to be given to the length of residence where a positive contribution was limited or absent.

…

63    The Tribunal was required to form a state of satisfaction as to whether there was ‘another reason why’ the visa cancellation decision should be revoked reasonably and on a correct understanding of the law: Suleiman at [30] (Colvin J), citing: Goundar v Minister for Immigration and Border Protection [2016] FCA 1203 at [54]; Wei v Minister for Immigration and Border Protection [2015] HCA 51; (2015) 257 CLR 22 at [33] and Graham v Minister for Immigration and Border Protection [2017] HCA 33 at [57]. By reason of the error identified at [0] above, it failed to do so. I note also that a failure to comply with a lawful direction made under s 499 can constitute jurisdictional error: Williams v Minister for Immigration and Border Protection (2014) 226 FCR 112 at [34]-[35] (Mortimer J); FKP18 v Minister for Immigration and Border Protection [2018] FCA 1555 at [34] (Kenny J).

74    It is submitted that the Tribunal in the present case committed the same error. The error is said to be disclosed at [140] of the Tribunal’s reasons. That paragraph must be read in the context of all that proceeds it:

135.    I take into account that Mr Downes first arrived in Australia as an adult in 2005. I accept that Mr Downes has lived in Australia since that time, and this is a substantial period. However, I also note that Mr Downes was first convicted of offences (albeit comparatively minor offences having regard to his subsequent offending) in 2008. Mr Downes has also spent a substantial proportion of his time in Australia incarcerated or on parole.

136.    I have limited evidence of any positive contribution to the Australian community by Mr Downes. Mr Downes referred to being employed in a lens factory during his early time in Adelaide, and having intermittent employment whilst living in the Northern Territory. I have also had regard to the statement (located in Exhibit R1) of LP concerning Mr Downes’ employment as a maintenance person and gardener at an Aged Care facility in an identified Aboriginal community in central Australia for a period in 2017 in which she describes Mr Downes as ‘a reliable and good worker’.

137.    However, in the context of Mr Downes’ overall criminal record, I am not satisfied that favourable weight should be given to Mr Downes arising out of the duration of his residence in Australia.

138.    As to the strength, nature and duration of Mr Downes’ family or social links with Australian citizens and permanent residents, I have recounted above the nature of Mr Downes’ relationship with Ms C and her extended family. I accept that Mr Downes and Ms C have had and continue to have a genuine and committed relationship with each other. I accept that if Mr Downes is not permitted to remain in Australia, this will cause significant distress and hardship to Ms C.

139.    I have taken into account carefully Mr Downes’ evidence about his relationship with Ms C’s extended family, noting he has a skin name subject to confirmation at ceremony. He is known by that skin name amongst Ms C’s family. Mr Downes was not categorical either way when asked if he identified or had been accepted as an Aboriginal person, but I have considered Mr Downes connections to Ms C’s family as it has been recounted to me by Mr Downes. I observed also that in responding to questions about Child B’s circumstances, it appeared that Mr Downes also had some connections with his former partner’s family. I note also that Mr Downes has been employed in central Australia, including at an aged care facility in an Aboriginal community. I accept that Mr Downes has substantial connections with indigenous Australia in these ways.

140.    I consider that the nature of Mr Downes’ connections with Australia, primarily through his connection to Australian citizens and parts of the indigenous communities in central Australia to be significant, notwithstanding that less weight is to be given to this factor where Mr Downes began offending soon after arriving in Australia, and there is only limited evidence demonstrating periods of positive contribution to the community. I consider this factor weighs in favour of revoking the visa cancellation.

(emphasis added)

75    Counsel for the Minister submitted that the concluding words at [140] should not be understood as directed solely to the consideration in [14.2(b)] of Direction 79. The words “this factor”, it was submitted, should be interpreted as a reference to the whole of the subject matter with which [14.2] is concerned.

76    It was further submitted that even if the Tribunal erred in construing the direction in the manner contended for by Mr Downes, the error was not material and so could not be jurisdictional in the sense explained by the High Court in Hossain.

Error

77    The Tribunal’s reasons should be not construed in the manner contended for by the Minister. To accept that interpretation would be to strain the meaning of language. On a natural reading, and conscious of the warning not to approach the reasons of an administrative decision-maker with an eye keenly attuned to the perception of error, it is clear that the passage extracted at [74] above deals separately with two discrete topics, each in turn. At [135] to [137] the Tribunal identifies that Mr Downes has resided in Australia for a substantial length of time but (correctly) directs itself to afford less weight to that circumstance by reason of the timing of Mr Downes’ criminal offending and the minimal positive contribution he otherwise had made to the Australian community. The Tribunal concludes at [137] that no favourable weight would be given to the length of time Mr Downes has resided here. That is clearly a conclusion relating to the factor specified in [14.2(a)].

78    At [138] to [139] the Tribunal expressly changes topics. Plainly, the subject matter of those paragraphs is the same subject matter to which [14.2(b)] is directed. The Tribunal then directs itself to diminish the weight to be afforded to the duration and nature of Mr Downes’ ties to family members and the community. The phrase “notwithstanding that less weight is to be given to this factor” fairly indicates that the Tribunal considered itself bound by [14.2] of Direction 79 to give less weight to the discrete factor in [14.2(b)] by reason of Mr Downes’ offending and his lack of positive contribution. There is no holistic approach by the Tribunal to the whole of [14.2] as the Minister contends. Rather, there is error in the construction and application of [14.2(b)].

Materiality

79    Counsel for the Minister submitted that an error of the kind I have identified could not be material on the facts of the present case. In was submitted that the Tribunal had correctly observed that it was bound by s 499(2A) of the Act to comply with the direction, that it had addressed each of the considerations it was required by the Direction to consider. The written argument went on:

Even on the presumption (which is not accepted) that the Tribunal at T [140] attributed less weight to one ‘other’ consideration contrary to the stipulation in clause 14.2(1), this would not, on its face, be an error that overcomes the ‘threshold of materiality’ implied by the statute.

80    I do not accept that submission.

81    The requirements in [14.2(a)(i)] and [14.2(a)(ii)] are clearly intended to influence the attribution of weight to one particular matter in the context of a highly evaluative task involving questions of judgment and degree.

82    As has been accepted, no such influence applies to the decision-maker’s evaluation of the different matters referred to in [14.2(b)]. The error in the present case created a circumstance in which the Tribunal gave less weight to the matters referred to in [14.2(b)] than it might otherwise have given had it properly understood the limitations on its powers. The error caused the Tribunal to impermissibly confine itself in the performance of its evaluative task. The gravity of the error is sufficient to justify its classification as jurisdictional in nature.

83    Factually speaking, the case is not one in which the factors favouring non-revocation were so overwhelming that an error evaluating the weight of factors favouring revocation could have made no difference to the result.

84    I would accordingly uphold this ground for judicial review.

Associate:

Dated:    5 February 2020