FEDERAL COURT OF AUSTRALIA

SZSLA v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 944

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The decision of the Federal Circuit Court made on 27 November 2019 be set aside and in lieu thereof it be ordered that:

(a)    the decision of the second respondent be set aside; and

(b)    the first respondent do pay the costs of the application, save that the order as to costs referred to in [19] of the reasons of the primary judge delivered on 27 November 2019 shall not be disturbed.

3.    The matter be remitted to the second respondent for determination according to law.

4.    The first respondent do pay the costs of the appeal to be assessed on a lump sum basis if not agreed.

5.    If it is necessary to assess costs then:

(a)    the appellant may file and serve an affidavit constituting a Costs Summary in accordance with the Court's Cost Practice Note (GPN-COSTS);

(b)    within 14 days of service of the Costs Summary the first respondent do file and serve any costs proposal in accordance with GPN-COSTS; and

(c)    if either party thereafter requests a determination of an appropriate lump sum figure then the matter shall be referred to a Registrar for determination of the lump sum on the papers and determination of the date by which the costs as assessed shall be payable.

6.    There be liberty to apply within 7 days to vary the orders as to costs.

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

REASONS FOR JUDGMENT

COLVIN J:

1    The first appellant came to Australia in 2008 on a student visa that expired in 2010. He overstayed. In 2011, he applied for a protection visa with his then de facto partner. Their application was unsuccessful, as was their application to review the refusal of the visa and their further application for judicial review. They then sought Ministerial intervention based on their protection claims but that too was finally refused in mid-2014. In early December 2014, the first appellant married his now wife. His wife has two children from a previous relationship.

2    The second appellant is a daughter of the relationship between the first appellant and his now former de facto partner.

3    In 2015, the first appellant applied for a temporary partner visa. His sponsor was his new wife. The second appellant joined in the visa application by her father as a dependent and her position stands or falls on the claims advanced by her father. For that reason, in the balance of these reasons I will refer to the first appellant as the appellant.

4    Relevantly for present purposes, an applicant for a temporary partner visa in Australia must make such an application within 28 days of expiry of a substantive visa. If that is not the case (and there was no suggestion in present proceedings that the relevant application was brought within the 28 day period) then the Minister must be 'satisfied that there are compelling reasons for not applying' that criterion: see cl 820.211 of Schedule 2 and criterion 3001 of Schedule 3 to the Migration Regulations 1994 (Cth).

5    The application for a temporary partner visa was refused by a delegate of the Minister and the refusal was affirmed by the Administrative Appeals Tribunal on the basis that the Tribunal was not satisfied that there were compelling reasons for not applying the 28 day criterion. The appellant sought judicial review in the Federal Circuit Court. The application was dismissed: SZSLA v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCCA 2824. The appellant now brings an appeal.

6    The sole ground of appeal is to the effect that the primary judge erred in failing to find that the Tribunal did not engage in an active intellectual process with respect to the critical issue on which the Tribunal's decision turned. The critical issue was said to be the appellant's claim that he was the father or step-father of four children under the age of eight who formed part of his family unit and therefore the interests of those children would be affected by a refusal of the visa application.

7    The case as developed orally for the appellant was to the effect that the Tribunal had treated the application as if it were based on a claim that the appellant provided emotional, physical and financial support without engaging with the fact that his claim was based upon his alleged relationship with the four children as a father and that together with his wife they were all one family. It was said that a claim by the appellant that he was a father to the children did not require considerable elaboration because that description carried with it a claim that the relationship was of a kind that was well known. Yet, the Tribunal treated it, in effect, as relatively unsupported. As a result, so it was submitted, the Tribunal, in effect, treated the claim as if it were made by a housemate who provided support to the family rather than on the basis of the appellant's claim that he was a father to the four young children. Put another way, the Tribunal did not engage in an active way with the true nature of the claim.

8    The grounds raised by the application for judicial review do not appear to have been put precisely in those terms to the primary judge, although they are directed to the same aspect of the Tribunal's reasons. The primary judge recorded the argument advanced below as a failure by the Tribunal to have an active intellectual engagement with the impact on the children that were claimed to be physically, emotionally and financially reliant on the appellant (then applicant): at [26]. On appeal the argument tended to focus on the failure to engage with the claim that the appellant had a relationship as a father to the four children and that the physical, emotional and financial support that he provided to them was as a father. However, to the extent that there was a difference, no point was taken by the Minister.

9    The primary judge found that findings by the Tribunal to the effect that there was little evidence to indicate that the children relied on the appellant properly reflected the state of the evidence because no detailed evidence was provided as to their reliance. On that basis, it was held that the alleged error had not been demonstrated because the Tribunal did the best it could with the limited information it had. It was reasoned that it was for the appellant (as the applicant before the Tribunal) to have put forward more detail as to the support he provided and in the absence of further detail the approach by the Tribunal could not be criticised.

Outcome

10    For the following reasons the ground of appeal has been made out. The Tribunal failed to deal in any meaningful way with the main matter advanced in support of appellant's claim, namely his claim that he provided support as a father to the four children. Instead, it focussed upon whether there was detailed evidence as to the nature of the physical, emotional and financial support that he provided. In consequence, the Tribunal failed to evaluate the merit of the visa application through the lens of the appellant's claim that he was a father to the children and, together with his wife, they were a family. The Tribunal gave no real consideration to whether the appellant did have a fatherly relationship with the children and that he supported them as a father. As a result, the Tribunal did not bring that fundamental aspect to account in deciding whether there were exceptional circumstances. In consequence, the decision lacked the requisite statutory character.

The nature of the statutory task

11    The Tribunal was entrusted with a statutory responsibility to conduct a merits review of the decision by the delegate of the Minister refusing the visa application. There was no claim that the applicable criteria for the visa had been met. The application depended upon the view formed by the Tribunal, as the decision-maker, as to whether there were compelling reasons for not applying the criteria in the circumstances of the case.

12    In order for reasons to be compelling they must be 'sufficiently convincing to move the decision-maker to exercise its discretion to waive the requisite criteria and the circumstances must be sufficiently powerful to lead a decision-maker to make a positive finding in favour of waiving the required criteria': Singh v Minister for Home Affairs [2020] FCAFC 7 at [27] (Derrington J, Reeves J agreeing).

The relevant legal principles as to jurisdictional error

13    It is common ground that before the primary judge the appellant had to demonstrate jurisdictional error in the decision by the Tribunal. The relevant claim of jurisdictional error pursued on appeal concerned the quality of the Tribunal's engagement with the matters relied upon to support the application for review by the Tribunal.

14    Recent decisions in this Court concerning the exercise of powers conferred by the Migration Act 1958 (Cth) have considered the extent to which there may be review for jurisdictional error by reason of a complaint about the extent to which matters raised by an applicant have been addressed in a meaningful way in the reasons given by the decision-maker. In such instances, the complaint is not of a failure to consider a matter that was raised, but rather a complaint about the quality of that consideration in forming the views that support the particular decision.

15    I put to one side those instances where the formation of a particular state of subjective satisfaction is itself a precondition to the conferral of a statutory power. If that is the character of the statutory provision then, without the formation of a state of satisfaction of the required kind, there is no power. Cases of that kind have been considered to be within the same class of case as those where the legislature specifies a power that may be exercised only if a particular factual circumstance exists. In such instances, the repository of the power cannot be the final adjudicator as to whether the pre-condition exists. Irrespective of whether the precondition takes the form of an objective fact or the formation of a subjective state of satisfaction, the Court, on review for jurisdictional error, will set aside the decision if the precondition is not satisfied. Many of the cases describe the precondition as a 'jurisdictional fact', even though it may, in fact, be the existence of an opinion or the formation of a subjective view by the repository of the power. Cases of this kind were recently considered by Derrington J in EHF17 v Minister for Immigration and Border Protection [2019] FCA 1681 at [51]-[58]. The importance of the distinction was explained in Tsvetnenko v United States of America [2019] FCAFC 74; (2019) 269 FCR 225 at [27]-[29], [44] (Besanko, Banks-Smith and Colvin JJ) and in Ali v Minister for Home Affairs [2019] FCA 1900 at [42]-[45] (Collier, Reeves and Derrington JJ).

16    It has been held that s 65 of the Migration Act which imposes an obligation to grant or refuse a visa depending upon whether certain criteria are met, establishes a state of satisfaction as to the criteria as a condition precedent (jurisdictional fact) upon which the grant or refusal of the visa is conditioned: see Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 at [37] (Gummow and Hayne JJ) which reasoning was quoted with approval by four members of the High Court in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [40]-[42] (Gummow ACJ and Kiefel J, as the Chief Justice then was) and at [102]-[103] (Crennan and Bell JJ). The present appeal was not argued on the basis that formation of the required state of satisfaction as to whether there were compelling reasons for not applying the criteria in the circumstances of the case was a condition precedent to a valid exercise of power by the Tribunal.

17    Therefore, the particular category of case to which I refer (of which the present case is an example) is comprised of instances where the formation of a particular state of satisfaction is part of the authority entrusted by the legislature to the administrative decision-maker. The category concerns instances where complaints are made about alleged intramural deficiencies in the exercise of statutory power. In such instances, where review is sought of an exercise of the power, there is an important constitutional boundary to be observed. The formation of the required state of satisfaction is entirely a matter entrusted to the repository of the power. It is not for the Court, on review, to usurp that authority in any way and appropriate to itself, contrary to the statute, the formation of the required state of satisfaction by evaluating whether the reasoning by which the state of satisfaction was formed was correct in the view of the Court.

18    The distinction was captured with characteristic clarity by Brennan J in Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1 in the following way:

The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.

19    However, that is not to say that the quality of the reasoning by which a state of satisfaction by a decision-maker has been formed in the course of the exercise of an administrative decision-making power conferred by statute is unreviewable. Recent decisions of the High Court have recognised that, in the absence of a contrary legislative intent, the conferral of powers of that kind are to be construed as requiring that the state of satisfaction must be reasonably formed: Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541 at [4] (Kiefel CJ, confining the principle to statutory discretionary power), [53] (Gageler J, expressing the principle generally), [78]-[84] (Nettle and Gordon JJ also expressing the principle generally and emphasising that it is a fact dependent inquiry), [131]-[135] (Edelman J also expressing the principal generally and emphasising that its precise content will be based on the terms, scope, purpose and object of the particular statute).

20    Further, where reasons have been delivered for the formation of the state of satisfaction then it is to those reasons that the Court will look to see whether the formation of the required state of satisfaction has been formed within the bounds of reasonableness: Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 at [46]-[47] (Allsop CJ, Robertson and Mortimer JJ). However, it is not every unreasonable step in reasoning that makes the decision reviewable for non-conformance with the reasonableness requirement. It is the formation of the decision as a whole that is required by the statute to be reasonable. Faulty steps in reasoning along the way may or may not provide a proper foundation for a conclusion that the decision as a whole was guided by a state of satisfaction that was outside the statutory bounds of reasonableness. It is not easy to demonstrate unreasonableness of the requisite kind because, usually, the legislature has entrusted to the decision-maker a broad authority as part of the decision-making process to make the assessments and form the conclusions that are required to be made on the available material in order to reach a decision. Therefore, the test for unreasonableness is stringent and extremely confined: SZVFW at [11], [52], [135].

21    However, the significance of the availability of unreasonableness review is that it recognises that the decision-maker does not have unlimited authority when it comes to making the required assessments and forming the conclusions. The point at which the boundary is crossed requires a consideration of the nature of the reasonableness limit. That is a question of statutory construction. It then requires an evaluation of the quality and character of the decision by reference to its outcome or any available reasons. That requires an evaluative judgment to be made.

22    Cases such as the present, where there is a requirement to give reasons, may be seen as giving rise to additional dimensions. A statutory requirement to give reasons will likely itself be construed as requiring that the reasons themselves be reasonable in character. If the form of the reasons lack that character then the statutory procedural requirement for reasons will have been breached. It may or may not be a breach which is of a kind that leads to the conclusion that the formation of the state of satisfaction is itself unreasonable. If it does not have that consequence then issues will arise as to whether the breach of the procedural requirement had a consequence that was jurisdictional.

23    It has long been recognised that not all failures to afford procedural fairness lead to the conclusion that the substantive decision exceeded jurisdiction: Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141 as applied in Minister for Immigration and Border Protection v WZARH [2015] HCA 40; (2015) 256 CLR 326 at [55]-[56] (Gageler and Gordon JJ). More recent decisions of the High Court have been to the effect that such principles are not confined to instances where there is a failure to afford procedural fairness: Nobarani v Mariconte [2018] HCA 36; (2018) 265 CLR 236 at [38]. Rather, they are to be subsumed within a broader concept of materiality which is implicit within all conferral of statutory power upon decision-makers, subject to express contrary provision. It is a principle to the effect that a failure to conform to the requirements of the statute that might otherwise be described as jurisdictional will not invalidate the exercise of power unless the failure is material in its consequence: Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123 at [29]-[30] (Kiefel CJ, Gageler and Keane JJ); and Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 at [45]-[49] (Bell, Gageler and Keane JJ).

24    Whether there may be a category of case where a decision is shown to be unreasonable in the jurisdictional sense, but not materially so is a matter that need not be examined for present purposes.

25    In the present type of case, the appellant complains not that there has been unreasonableness in the sense I have described, but that in forming the required state of satisfaction, the Tribunal failed to engage in an active intellectual process with respect to the critical issue which was the appellant's claim that he was a father to four young children. There is no express or implicit statutory requirement (akin to the reasonableness requirement) to the effect that a repository of a decision-making power must engage in an active intellectual process in undertaking the statutory task. Nor is the decision-making power of the Tribunal when reviewing the merits of a decision made by the Minister as to whether there are exceptional circumstances of the kind required in the present case subject to an implied requirement that the Tribunal (in the shoes of the Minister) must engage in an active intellectual process. Nevertheless, it is not every kind of reasoning, no matter what its quality, that will conform to the statute. For the following reasons, the decision must have the particular quality or characteristics that are to be discerned from the statutory context. It must be a decision of the kind that the statute requires.

26    The expression 'fail to engage in an active intellectual process' (and other like phrases) have each been used in recent decisions to describe a type of deficiency in the quality or character of reasoning or decision-making where there is a statutory requirement to 'consider' particular matters in the exercise of various statutory powers to cancel a visa or to revoke the cancellation of a visa. Those decisions recognise that the statutorily required consideration must have a substantive quality. In that context, it has been said that in order for the required matters to be considered, there must be an active intellectual engagement with them: see the summary in Navoto v Minister for Home Affairs [2019] FCAFC 135 at [87]-[89] (Middleton, Moshinsky and Anderson JJ). So, where a claim is made of jurisdictional error in respect of the exercise of a power that requires a decision-maker to consider specified matters and the claim is made on the basis that the quality of the decision-making fails to conform to the minimum standard required, there must be a qualitative assessment as to whether, in substance, the decision-making task of considering the material has been discharged. Put another way, the question is whether the nature and extent of the consideration that has undertaken had been meaningful: BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96; (2017) 248 FCR 456 at [12] (Bromberg and Mortimer JJ). If not, then the jurisdiction of the decision-maker has been exceeded because the statute required that particular matters be considered (not just noted, referred to, identified or listed). As was recognised by the five member Court in Minister for Home Affairs v Omar [2019] FCAFC 188, an obligation to consider material (and hence undertake a process of consideration that involves an active intellectual engagement with the material that must be considered) may be implicit in the particular statutory provisions. In that instance, the obligation arose because the Minister was required to invite submissions before deciding whether to affirm the revocation of a visa. As there would be no point in requiring such a step to be taken if the Minister could then proceed without considering the material in the submissions, there was a requirement to consider the submissions and to consider them required active intellectual engagement with the matters raised by them.

27    To similar effect, it has been said that the requirement to consider requires matters that must be considered to be given 'proper, genuine and realistic consideration': Bondelmonte v Bondelmonte [2017] HCA 8; (2017) 259 CLR 662 at [43] adopting the reasoning of Gummow J in Khan v Minister for Immigration and Ethnic Affairs [1987] FCA 713; and Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83; (2015) 231 FCR 513 at [23] (Flick, Griffiths and Perry JJ).

28    However, all such epithets must be understood in their proper context lest they encourage a Court to review the correctness of assessments and evaluations the merit of which is a matter for the administrative decision-maker: Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; (2010) 243 CLR 164 at [29]-[30].

29    In Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352 at [47]-[48] (Griffiths, White and Bromwich JJ) expressed the questions that are raised where there is a complaint about the quality of the consideration undertaken which is said to be jurisdictional in the following way:

Thus the central focus in the two proceedings here is on the question whether the Minister engaged in an active intellectual process in considering the merits of the two cases before him. Whether or not there was such an active intellectual process requires the Court to conduct an evaluative judgment, taking into account the available evidence and reasonable inferences, as to all the relevant facts and circumstances of each case. These include, but are not limited to, the nature and volume of the material placed before the Minister to assist his decision-making, as well as other matters which arise from the relevant statutory context. We will discuss some of those statutory indicators shortly.

Before we do, however, it is appropriate to state two matters. First, a finding by the Court that the Minister has not engaged in an active intellectual process will not lightly be made and must be supported by clear evidence, bearing in mind that the judicial review applicants carry the onus of proof. Secondly, some broad guidance may be obtained from other authorities as to the kinds of circumstances in which such a finding could be made. In referring to these authorities, we do not suggest that the requisite evaluative judgment is to be conducted as though it involves a 'tick the box' comparative exercise by reference to other decided cases. As we have emphasised, each case will necessarily turn on its own particular facts and circumstances.

30    The reasoning in Carrascalao was approved in Omar.

31    The proper approach to be undertaken in such cases was recently summarised by Reeves, O'Callaghan and Thawley JJ in Singh v Minister for Home Affairs [2019] FCAFC 3; (2019) 267 FCR 200 at [37] in the following way:

In determining whether the decision-maker had an active intellectual engagement, the following matters are relevant:

(1)    First, the degree of consideration which is necessary for the jurisdiction to have been exercised, and exercised in a manner which is authorised, is affected by the centrality of the matter, which it is said was not engaged with, to the issues and the prominence the matter assumed.

(2)    Secondly, in examining the reasons of the decision-maker to determine whether there was a lack of intellectual engagement:

(a)    the reasons should not be scrutinised 'minutely and finely with an eye keenly attuned to the perception of error': Carrascalao at [45], quoting Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [30];

(b)    it is necessary to read the reasons in light of the whole case as it was before the Tribunal, which might have involved more issues than are raised, and more evidence than is, before courts on judicial review and subsequent appeal. The failure to mention a particular paragraph of a particular piece of evidence should be analysed by reference to the whole of the material before the Tribunal and its prominence assessed by reference to all of the issues and the way in which the matter was conducted in the Tribunal; and

(c)    a conclusion that the decision-maker has not engaged in an active intellectual process 'will not lightly be made and must be supported by clear evidence, bearing in mind that the judicial review applicants carry the onus of proof': Carrascalao at [48].

32    Nevertheless, for reasons already given in the context of review based upon alleged unreasonableness, in cases where the complaint is that the consideration that was undertaken did not satisfy the statutory requirement to consider, the Court must be appropriately restrained in reaching such a conclusion. Were it not to approach the matter in that way, the Court would be likely to act inconsistently with the statute and undertake the task of considering the merits. The Court must recognise that the legislature has chosen to entrust the making of the decision and all the attendant judgments associated with that task to the decision-maker, not to the Court.

33    In the context of cases where the complaint raised is that there has been a failure to consider material advanced by a party, the limitations on the Court's review jurisdiction were recently expressed in AXT19 v Minister for Home Affairs [2020] FCAFC 32 at [56] in the following way:

Considerable caution needs to be exercised in resolving an argument that a claim has been made in sufficiently clear terms that it should in turn be considered by the Tribunal. The greater the degree of clarity in which a claim has been made and advanced for consideration, the greater may be the need for the Tribunal to consider the claim in clear terms. Conversely, the more obscure and less certain a claim is said to have been made, the less may be the need for the Tribunal to consider the claim. The need for caution arises lest a reviewing Court is propelled from its sole task of undertaking judicial review and into the murky waters of impermissible merits review. The task of a court undertaking judicial review is not to elevate a statement that may have been made in passing by a claimant into a clearly articulated claim in need of resolution. For a Court undertaking judicial review to engage in such a process has all the dangers of the Court resolving a different factual case to the one advanced to the Tribunal and thereby trespassing into merits - and not judicial - review.

34    With the above context in mind, it is now possible to consider the ground of jurisdictional error alleged in the present case. This is not a case where it is contended that the statute, expressly or impliedly, required the Minister (and the Tribunal in the shoes of the Minister) to 'consider' any particular material or matters. Rather, this is a case where the focus is upon a regulation to be applied in the course of making the decision that required a judgment to be formed as to whether the decision-maker was satisfied there were exceptional circumstances as to why the requirements of the regulation should not apply in the particular case.

35    The question raised by the ground of appeal is whether there are particular characteristics of the quality of reasoning by the Tribunal that must inform the lawful formation of the required state of satisfaction and, if so, whether those characteristics were not met in this case. So, would a state of satisfaction that was formed by reasoning that was desultory or superficial or without any real engagement with the available material or by treating the application as if it were of a fundamentally different kind to that which was actually advanced, have the character or quality that would conform to the legislature's expressed intent when it entrusted the decision to an independent decision-maker such as the Tribunal?

36    The general principle to be applied is that any failure to comply with a particular statutory condition by making a decision 'in fact lacking the characteristics necessary for it to be given force and effect by the statute pursuant to which the decision-maker purported to make it' is jurisdictional: Hossain at [24] (Kiefel CJ, Gageler and Keane JJ). There is no exhaustive list of the kinds of errors that will be jurisdictional: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [82] (McHugh, Gummow and Hayne JJ). The necessary characteristics are to be discerned from the statute, applying recognised principles of statutory construction. It is only by reference to a proper understanding of what was required by the statute that there can be an evaluation as to whether the quality of the reasoning means that the decision-maker has exceeded the statutory authority to make a valid decision.

37    In my view, in any particular case there are three aspects that must be considered where a claim is made that there is jurisdictional error because the analysis or engagement evident from the reasoning (or other aspects of the decision-making process) applied in forming a required state of satisfaction lacks the overall quality or characteristics that the statute requires and are necessary for it to be given force and effect.

38    First, the precise statutory language used to describe the nature of the state of satisfaction to be formed. In this case, the legislation required a state of subjective satisfaction to be formed as to whether there were compelling reasons to waive the need to comply with a particular visa requirement.

39    Second, the nature of the repository required to form the required state of satisfaction. In this case, the repository was the Tribunal standing in the shoes of the Minister. In SZQPY v Minister for Immigration and Border Protection [2018] FCA 359, I described at [24] some aspects of the Tribunal's character that may be relevant when considering whether a decision has been made that is within the scope of the decision-making power conferred on the Tribunal:

By entrusting the decisions on review to members of the Tribunal, the legislature must have intended that the decisions to be made would have the character of decisions to be made by the Tribunal generally. Members of the Tribunal must be a judge or a legal practitioner who has been enrolled for at least five years or a person with special knowledge or skills relevant to the duties of a member: s 7 of the AAT Act. They must take an oath to faithfully and impartially perform the duties of the office of a member of the Tribunal: s 10B of the AAT Act. They are independent of any other part of the Executive and do not form part of a Ministerial department. They must disclose any conflict of interest and must not take part in any proceeding in which they have a conflict without the consent of the President of the Tribunal: s 14. The Tribunal has a registry and staff for that purpose. A person commits an offence if the person engages in conduct that obstructs or hinders the Tribunal: s 63.

40    Third, the subject matter and purpose of the power. In this case, the decision concerned an application for a spousal visa by an applicant who was in Australia. The Tribunal's view as to whether the exceptional circumstances requirement was met determined whether the appellant could remain in Australia with his wife and family or would have to leave the country and make a fresh application from outside Australia. As to this third aspect, in the migration context, Allsop CJ (Markovic and Steward JJ agreeing) said in Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; (2018) 267 FCR 628 at [3]:

Public power, the source of which is in statute, must conform to the requirements of its statutory source and to the limitations imposed by the requirement of legality. Legality in this context takes its form and shape from the terms, scope and policy of the statute and fundamental values anchored in the common law: Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 at 5 [9]; Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 357 ALR 408 at 423 [59]. The consequences of these considerations are that where decisions might have devastating consequences visited upon people, the obligation of real consideration of the circumstances of the people affected must be approached confronting what is being done to people. This obligation and the expression of its performance is not a place for decisional checklists or formulaic expression. Mechanical formulaic expression and pre-digested shorthand expressions may hide a lack of the necessary reflection upon the whole consideration of the human consequences involved. Genuine consideration of the human consequences demands honest confrontation of what is being done to people. Such considerations do not detract from, indeed they reinforce, the recognition, in an assessment of legality, that those entrusted with such responsibility be given the freedom of lawful decision-making required by Parliament.

41    Drawing these three aspects together, in this case, the state of satisfaction to be formed (a) was whether the reasons advanced by the appellant were compelling reasons to waive compliance with the criteria for the visa; (b) was that of an independent Tribunal the members of which were appointed for their expertise in administrative decision-making; and (c) had a serious consequence in that it may result in separation for a considerable and indefinite period of time between the parties to a marriage and young children in their care by reason of their marriage.

42    It does not help to reduce the kind of analysis required in order to evaluate whether the statutory standard of satisfaction that there were exceptional circumstances was met by the quality and character of analysis (and therefore intellectual engagement) in the present case to an epithet. The requisite state of satisfaction had to be formed by a decision of the required character. Whether or not that had occurred could only be determined by a proper inquiry upon review, namely an inquiry that focussed upon the nature of the matters advanced by the appellant to support his application and the way in which those matters were addressed in the course of the Tribunal hearing and in the reasons of the Tribunal. The inquiry was not to be undertaken for the purpose of considering whether the Court agreed with the reasoning by the Tribunal, but rather to discern whether the process was of a kind that conformed to the quality of decision-making that the statute demanded.

43    The required inquiry might be expressed as whether there was an active intellectual engagement with the overall nature of the case that was put. But, there is no magic in the formulation 'active intellectual engagement'. Those words are a shorthand description of the need for the required state of satisfaction to be formed in a way that conforms to the quality of deliberation that the statute requires. A decision which lacked that character was reviewable for jurisdictional error for that reason. Indeed to ask the question by reference to the formulation active intellectual engagement risks elevating that language to a status that it does not enjoy. The statutory requirement to be met was the formation of a state of satisfaction as to whether there were circumstances that were sufficiently powerful to waive the requirement to meet the criteria in the regulations. It was the evaluation of the overall quality of the evaluation undertaken (not whether it might be thought to be right or wrong) that was invited by the ground of review.

44    To determine by such a process of reasoning that a decision is beyond jurisdiction is not to engage in merits review. The determination as to whether there were compelling reasons to waive the requirement remains entirely a matter for the Tribunal. It is not the assessment of whether the reasons advanced by the appellant are sufficiently compelling that is the subject-matter of the relevant inquiry. Rather, the question is whether the quality of the reasoning and analysis by the Tribunal meant that the assessment made was not of the character or kind that the statute required when it entrusted to the Tribunal the formation of the state of satisfaction as to whether there were circumstances sufficiently powerful to cause the Tribunal to conclude they were exceptional. The fairness of the decision is not the question. It is the lawfulness of the decision that is in issue.

The matters raised by the appellant in support of his application

45    The evidence indicates that the appellant had the assistance of a migration agent in preparing his visa application and in presenting his review application to the Tribunal, but before the Tribunal he appeared on his own behalf when answering questions. His answers to questions from the Tribunal were interpreted. They should be considered in that context.

46    In support of his visa application, the appellant provided a statutory declaration in which he described the circumstances in which he came to meet and marry his wife, the sponsor for his application. His wife also provided a statutory declaration.

47    They each provided a short separate statement in support of the waiver of the visa criteria. In his statement, the appellant said he overstayed his student visa because his parents told him that if he came back home he would be hurt by debtors. He said he then met and fell in love with his former de facto partner and applied for a protection visa as her dependent family member. They had two children, but the relationship broke up. He then 'set a loving and caring relationship with [his] current wife'. He said they had a daughter together. He also said that his wife had two daughters from her previous relationship. The appellant said that he was the sole breadwinner for most household expenses. He also said:

My wife has two daughters from her previous relationship, who are 3 and 4 years old. Both my wife and our children have been dependent on me physically, emotionally and financially. No one can ever replace the role of a husband and father in such circumstances and the separation will definitely be disastrous for our family.

48    As explained below, both in the conduct of the hearing and in its reasons, the Tribunal focussed on the statement that 'my wife and our children have been dependent on me physically, emotionally and financially'. However, those words should not be separated from the explanatory words that follow to the effect that no one can replace the role of a husband and father to the children and 'the separation will definitely be disastrous for our family' (emphasis added).

49    The statements from the appellant and his wife explained that the marriage between them was registered about three weeks before their daughter was born.

50    There was also evidence in the form of an agreed parenting plan between the appellant and his former de facto partner concerning their daughter (the second appellant). It provided for their daughter to live with the appellant, but to spend time with her mother as agreed and by arrangement. It provided for shared parental responsibility.

51    The appellant and his wife were asked to submit to DNA testing as to the paternity of the daughter of their marriage. They declined to do so.

52    The Minister's delegate concluded that the circumstances relevant to the appellant's application were not compelling. That is, they were not powerful enough to make a positive finding that the applicable regulation should be waived.

The hearing before the Tribunal

53    The transcript of the hearing before the Tribunal was before the primary judge. When the Tribunal asked the appellant what he thought were the compelling reasons in his case, the appellant responded:

First of all I want to say that I feel sorry that I stayed here illegally. Secondly because [my wife] and I, we got married and we have a child now and I have to stay there to fulfil my responsibility as a father.

54    There was then an engagement by the Tribunal with an issue as to whether the appellant had started his relationship with his current wife at the time the child was conceived and whether he had reported to the Department at the relevant time that his relationship was with his former de facto partner. The appellant said that he met his wife in October 2013, but their relationship started in April 2014. The appellant's evidence about the timing of the two relationships was then tested by the Tribunal member. The questions included questions as to why he and his partner did not submit to DNA testing for their child. He gave successive answers that his wife did not give permission for the test, that he was advised that he did have to submit to the test, that the test was too expensive and that it was unfair to ask them to do the test. Each successive reason was given after he was challenged as to the prior reason.

55    In explaining why he did not do the DNA test, the appellant said:

That's right. And do anyone has any evidence that we are not in a truthful marriage life, and is there anyone other than the government saying that we are not a truthful marriage? Because our family, we live together, we live - we sleep together. I sleep with the four children. We live together every day. So I just - I don't understand why this situation is happening.

56    The Tribunal member responded:

I'm not suggesting whether or not you have a truthful marriage. But having a truthful marriage is not enough to show compelling reasons for 3001 not to apply. Having a truthful marriage is the basis for your visa application, but that's not enough to show a compelling reason. Having a child may be a compelling reason. You claim you have a child with your partner, and thus I keep saying to you that may well make a difference to the outcome of your case. But since you're refusing to do the DNA test, I'm not going to convinced that the child is your child.

57    At that point and thereafter, the Tribunal did not explore further the claim that the appellant was a father to the four children in the household or the consequences for those four young children if the application was refused.

58    After the above exchange, the appellant then said:

I think that the reason I stay here is to give - build for future for my children. And I work very hard here to promise my wife, my family, a good life. And as a man, I have four children, and all of us, the whole family, just stayed in a two bedroom property. I cannot buy the things that other family buy for their children. I really don't understand why people keep suspecting us.

59    The Tribunal member then asked about the two children from the appellant's previous relationship. The appellant said that the daughter lives with him. The Tribunal member then summarised the position concerning the children as being that the appellant lives with four children, 'one is your daughter from your previous relationship, one is the child you claim from your current relationship, and two are children of … your current wife'.

60    Questions were then asked that established that the appellant's wife does not work and receives Centrelink payments as a partnered person. The Tribunal member then asked about whether his wife could support herself or obtain help from family or the appellant could provide financial support even if he had to leave Australia. The appellant responded:

As you may know, my wife had unfortunate marriage, and that caused her mental issues, and she has to look after three children. So just imagine only that a few hundred dollars for every fortnight. That won't be able to pay her for the rent and for the daily expenses.

61    The appellant clarified that the three children did not include his daughter from his previous relationship, but his wife would need to look after her as well.

62    The Tribunal member then put to the appellant that just saying that he had a genuine real family was not enough to show compelling reasons. The appellant responded that he was there every step of the pregnancy and birth of the fourth of the children which led to the Tribunal expressing concern about the failure to submit to the DNA test. The appellant responded that his wife had damage to her mental health and he could not force her because he wanted to stay.

63    The Tribunal then put to the appellant that there was no evidence before the Tribunal about the mental health of his wife and the appellant said that there was proof that his wife sees a psychologist regularly. There were further exchanges to the effect that the Tribunal did not accept the appellant's account about why the DNA test was not undertaken if it was a matter that would support his application. In the course of that exchange the appellant protested that he loved his wife and family.

64    After that exchange, the Tribunal then said:

All right. Any other compelling reasons that you want to bring to my attention?

65    The appellant responded:

I hope that you can believe me. I work very hard in Australia here is to provide a good life to my child [query children] and my wife and I want them to receive fair treatment. I don't want them to have to face any discriminations. I want to give them the life that they like. I don't want to be here just to challenge you or show any disrespect to any of you. It's only because I want to have a life with my family. If I have to leave how do you think that a single woman can live or survive with four children just by [herself] only make - cannot live the good life.

66    The Tribunal then asked about whether there was child support paid by the appellant's wife's former husband to which the response was 'just a little' and then that was said to be $700 to $800 every month. The appellant was unable to answer questions about the current immigration status of his former wife (who had the full-time custody of his son) and said that he could not force her to tell him her secrets. To which the Tribunal member said 'I am not really convinced you are being really truthful with me right now'.

67    The Tribunal asked further questions about the reports about his wife's mental health to which the appellant said he could 'give you the proof or certificate or the report'. Then asked about the nature of the treatment, the appellant said the doctor said to her to try and keep her in a happy mood and he could only afford to pay for his wife to see the doctor every one or two months. When asked about her diagnosis, the appellant responded that his wife had autism. There were further questions about the nature of his wife's condition and what the appellant said about her treatment other than to say that her mood was not stable. The appellant was unable to give any specific answer about the nature of her condition or what she had been prescribed. The Tribunal then put to the appellant that it doubted his evidence about providing financial support for her mental health condition.

68    The Tribunal member then said:

I'm happy to accept that you provide them with financial help. But as I mentioned before, I'm yet to consider whether they need that help or whether they can get financial help from other sources. But beyond the financial help I don't know what else you do provide.

69    The appellant answered:

She needs me, definitely. She needs me to say to go out for a walk after I got home to make her have a happy mood. You can ask my wife if she needs me. She said that without me she won't be able to live. Because she told me that my existence and our children are the whole support to make her want to live.

70    The Tribunal member then asked whether the appellant had any other compelling reasons that he wanted to mention. The appellant answered:

Member, I really respect you and I invite you to believe me. As a man with family, I need to provide a future and life to my children and my family. I cannot just walk away out of their life and that's very irresponsible. So you shouldn't suspect me just because I don't go to have a DNA test. And do you think just you force a family as ours to a corner a fair action to us. If I don't love them, if we are not in real relationship, why would I stay here to support four children and to support a sick person.

71    When pressed again to explain a compelling reason beyond the existence of a genuine relationship, he responded: 'come with me, you can see in my life and in my eyes that if I don't really love her and love them, I won't really stay here'. He said that their marriage was a true marriage and therefore the request to undertake the test was not fair.

72    The Tribunal then asked again whether there were any compelling reasons. The appellant said that he was a Christian believer. He was then asked whether he thought being a Christian believer gives rise to compelling reasons for a waiver. He responded:

No, I don't think so, because our marriage is real. Our marriage is real and the children is mine. I don't think you should suspect me. If it's not my real child, just for a residency right to just acknowledge someone is my child and to look after this child or this child's life, do you think that's worth it? Have four children and one - your person, if it's not for love, what other reason would it be?

73    The Tribunal then asked whether there were any other circumstances that the appellant wanted the Tribunal to consider.

74    The Tribunal then telephoned the appellant's wife. Her evidence was relatively brief. She was asked about why the DNA test was not taken and she said that she hadn't agreed to the test because she did not think it was a fair request. Her evidence concluded with the following statement:

I don't want to do anything that seems unfair to me, and also we have financial hardship. And I'm not in a very good emotional situation now, and I haven't been looking after my children very well, and we are sick now. That's all caused by these difficulties from the Department of Immigration, does make me feel tired, both emotionally and physically. And it has been not really one day or two days since I wanted to disappear from Australia, from this world. That's only because I think there's still hope in my life, that's why I still have breath.

75    What was absent from the Tribunal's approach were any questions directed to whether the appellant was a father to the four children. The Tribunal repeatedly asked the appellant to state the exceptional circumstances. It directed the appellant away from his relationship with his wife being a basis for exceptional circumstances. It dealt with the paternity of the child of the marriage between the appellant and his wife. Those matters were pursued as matters relevant to the credibility of the appellant's account and the genuineness of their relationship. However, the appellant was not challenged as to his claim and his evidence that he was a father to the four children and that it would be devastating for those children if he was required to leave Australia to apply for a visa.

76    The significance of the way the Tribunal approached the hearing is not to evaluate whether there was some procedural unfairness in the process, but rather as the context for the approach adopted in the Tribunal's reasons. What is clear is that the claim about the appellant's fatherly relationship was an important basis for his claim that there were exceptional circumstances, yet the Tribunal did not seem to have picked up on that point during the hearing.

The Tribunal's reasons

77    The Tribunal 'accepted at face value' the claims that the appellant and his wife were 'in a genuine relationship together and the circumstances of that claimed relationship' but found that was not sufficient to give rise to compelling reasons (paras 15-22).

78    Then, the Tribunal referred to the appellant referring 'to having a child with the sponsor' (para 23). The Tribunal observed that in normal circumstances the presence of a child of the relationship may constitute a compelling reason for waiver, but found that was not so in the present case. The Tribunal then provided detailed reasons for that view, namely:

(1)    The appellant had presented to the Department on a number of occasions between 28 January and 30 April 2014 with his former de facto partner and claimed to be in a relationship with her which contradicted identified aspects of his evidence to the Tribunal.

(1)    After the time that the appellant said he had been living with his now wife, the appellant could not provide her date of birth.

(2)    The appellant stated that he had lived with his now wife since January 2014 when he had claimed in earlier interviews that during a number of months in the same period he had been living with his former de facto partner at a different address.

(3)    The appellant and his former de facto partner had pursued claims for ministerial intervention based upon their application for protection (which had been rejected) and did so from December 2013 up until May 2014 when it was finalised.

(4)    The appellant said that he started his relationship with his now wife in April 2014 and they announced it after they learned about her pregnancy, but that did not explain why he continued to refer to his former de facto partner when seeking bridging visas during that time.

(5)    The Tribunal concluded that the evidence that the appellant had given concerning the breakup of his previous relationship and the commencement of his current relationship had not been truthful.

(6)    For reasons given, the Tribunal concluded that the appellant was not a person of credibility and that there were legitimate concerns about the paternity of the child.

(7)    The Tribunal did not accept the appellant's reasons for his refusal to arrange a DNA test for the child.

(8)    The appellant was not being truthful about his wife's mental health concerns and that was not the reason he refused to do the DNA testing.

(9)    The Tribunal was of the view that the appellant was not the biological father of the child.

79    These reasons do not deal with the four children and the appellant's relationship to them.

80    The Tribunal considered separately whether the presence of the child would nevertheless constitute a compelling reason for the waiver of the requirement to meet the relevant criterion on the basis of compelling reasons. The Tribunal then said (para 25):

The Tribunal notes that the [appellant] has a child from a previous relationship who, he claims, lives in the same household and the sponsor also has two children from a previous relationship. The [appellant] claims in his submission to the delegate that the two children from the previous relationship, as well as the child with his sponsor, have been relying on him physically, emotionally and financially. The Tribunal is mindful that there is very little independent probative evidence to support this claim. The Tribunal is prepared to accept that if the [appellant] lives in the same household as his partner and children, there may be some bond between the [appellant] and the children. However, there is little evidence before the Tribunal to indicate that the children rely on him.

81    The language used by the Tribunal at this point treats the appellant's claim as being that he lives in the same house as the children and that they rely on him for support, but there is no hint in the Tribunal's language of the claim made by him that he is a father to the four children. Strangely, the Tribunal says that it is prepared to accept that 'if the [appellant] lives in the same household as his partner and children, there may be some bond between the [appellant] and the children'. It then says that there is little evidence that the children rely on him.

82    However, the evidence took the form of the appellant's short statement that he was their father and his departure would be disastrous for them. It was expanded upon in his oral evidence. Those materials raised a claim that there were exceptional circumstances by reason that the appellant was a father to the four children, three of whom were Australian citizens. The claim to be a father carries with it a claim that his relationship with the children is such that he undertakes all of the usual fatherly responsibilities towards them. As he said, he sleeps with them. He says they are his children and he describes his aspirations for their future. At no point was his evidence in that regard challenged. Instead, the Tribunal dealt with his claim as if it were to the effect that some bond might arise from his proximity in the house with the children.

83    The Tribunal then reasoned (para 26):

Equally significantly, the Tribunal is not satisfied that the emotional and financial support can only be provided if the [appellant] is physically present in Australia and if the family resides under one roof, that is, if the waiver is applied. The [appellant] told the Tribunal that he wants to stay in Australia to build a better future for his wife and children. In the Tribunal's view, if the [appellant] is required to leave Australia, he will still be able to maintain a close relationship with the sponsor and the children, if he claims such a relationship exists now. They will be able to maintain frequent contact and the [appellant] will be able to continue to provide emotional support to the children, if he claims to be providing such support now. It is not uncommon for partners and children to be separated and such separation need not preclude the existence of emotional support. The same issue applies in relation to the financial support. There is no obvious reason why the [appellant] could not obtain employment in his home country to provide financial support to his partner if such support is needed, even if his income could be diminished. As for physical support, the Tribunal is mindful that if the [appellant] was to leave Australia, any period of separation will be temporary. If the present relationship is genuine, the [appellant] will be able to make another application for a Partner visa and may be granted such a visa. There is little evidence to satisfy the Tribunal that the sponsor or the children will be adversely affected by the temporary withdrawal of physical support. The Tribunal does not consider that the withdrawal of such support constitutes a compelling reason for the waiver.

84    Again this reasoning fails to deal with the appellant's claim that he is a father. As to emotional support, the reasoning is expressed in terms of 'if he claims' to have a relationship with the children. The reasoning is expressed on the basis of an hypothetical when the claim made was in express terms that there was a relationship of a particular character. Many words were not required to make that claim. The reasoning of the Tribunal proceeded on the basis that there was a mere possibility of such a claim. As a result, the reasoning about emotional and physical support failed to engage with the claim as made. It resulted in conclusions drawn not by reference to findings as to the nature of the appellant's relationship with the children (which he said was as a father) but on the basis of an unstated and unspecified assumption as to what that relationship might be. It led to odd reasoning such as '[The children] will be able to maintain frequent contact and the [appellant] will be able to continue to provide emotional support to the children, if he claims to be providing such support now' (emphasis added).

85    None of the reasoning is contextualised by reference to the age of the children all of whom were under the age of seven at the time of the decision. It is said that there was little evidence that the children will be adversely affected. If the appellant was their father figure (a matter about which the Tribunal made no finding because it failed to consider the claim and treated it as a possibility only) and the evidence as to their age was accepted, it is difficult to see why those matters together were not some evidence of adverse effect. To approach the matter on the basis that there was no evidence was to fail to engage with the claim as made.

86    The Tribunal dealt with the appellant's claims about why he remained in Australia without a visa and the basis upon which he had claimed a protection visa and found they were not compelling reasons (paras 27 and 30).

87    The Tribunal dealt with the evidence about the mental health of the appellant's wife and reasoned that it was not prepared to accept that any support went beyond financial support (para 28).

88    It was also found that there was very little evidence about the financial circumstances of the appellant's wife as sponsor and concluded that it was not satisfied on the evidence that the family will experience financial hardship if the waiver of the relevant criterion is not applied (para 29).

89    A claim that a person is a father to four children may be detailed as to the particular support provided. But even without further detail, in the context of the matters raised in support of the application, it was a claim that carried with it all that is bound up with the description that the appellants was a father to the children. No more need be said. The consequences for young children of being separated from the father figure in their life are obvious.

90    To claim to be a father to young children is a claim to the existence of a relationship with attributes of a kind so fundamental and well-understood across cultural contexts that an active intellectual engagement with the appellant's case had to consider whether the appellant had such a relationship with the four children and, if so, the consequences for them if his application was unsuccessful (and he had to leave Australia in circumstances where his ability to return would depend upon successfully obtaining a visa based on an application made from outside Australia). To approach the appellant's case, as the Tribunal did, as if it was denuded of any claim that the appellant's relationship to the four children had any of the characteristics conjured by the description 'father' or any of the usual comfort, affection and support that young children would receive from a father was to reach a state of satisfaction as to exceptional circumstances that was so disconnected from a major matter raised that it lacked the requisite statutory character.

Conclusion

91    For reasons I have given, I consider this to be a clear case where a fundamental, perhaps key, point advanced by the appellant to the Tribunal was not engaged with in any material way. As a result the fundamental nature of the case advanced by the appellant did not receive any real consideration when the Tribunal reached its view as to whether there were exceptional circumstances. It missed the mark in a way that meant there was no real connection between the reasoning that guided the state of satisfaction and the nature of the claim made to support the application.

92    The claim that the appellant was a father to four young children was at the heart of his claim and in the limited inquiries that the Tribunal directed to that aspect, the appellant made clear that position. The Tribunal directed no real questions to testing that account. Instead, it simply repeatedly asked the appellant to specify the exceptional circumstances. It was certainly for the appellant to bring forth the matters that he relied upon. He did so, even without any assistance from the Tribunal as a person appearing on his own behalf. He said that he was a loving husband and father to four young children and he provided them with physical, emotional and financial support. It was a claim that did not require amplification in order for it to be a claim that had to be considered in the terms in which it was put. Therefore, the Tribunal had to consider whether the appellant was a father to the four children and if so the consequences for them if he had to leave Australia indefinitely in order to apply for a visa. It may weigh those matters with other matters that the Tribunal identified. But what it could not do was to fail to engage in any meaningful way with his claim to be a father.

93    The failure may be described as a failure to engage in an active intellectual process or as a failure to consider the claim as advanced or as a failure to consider a fundamental part of the claim. The words used to describe the deficiency are unimportant. The appellant was entitled to an approach to the formation of the required state of satisfaction that was of a kind that might be expected of an independent, specialist administrative Tribunal dealing with subject matter of the kind raised by the application. The decision did not meet that benchmark which was a standard that the statute imposed.

94    It follows that the primary judge was in error in not upholding the application for judicial review on the basis of the sole ground pursued in the appeal.

95    The appeal should be allowed. As to costs, it was common ground that costs should follow the event save that an interlocutory order made by the primary judge as to certain costs should not be disturbed. In accordance with the practice of the Court those costs should be assessed on a lump sum basis. There should be orders accordingly.

Associate:

Dated:    7 July 2020