Federal Court of Australia

Law v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1726

ORDERS

THE COURT ORDERS THAT:

1.    The decision of the second respondent dated 25 May 2020 is set aside.

2.    The matter is remitted to the second respondent for determination in accordance with law.

3.    The first respondent pay the applicant’s costs as agreed or taxed.

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

REASONS FOR JUDGMENT

STEWART J:

Introduction

1    The applicant, Kwok Lam Law, is from Hong Kong. He met his Vietnamese wife in December 1995. They married in Hong Kong in 1999. She acquired Australian citizenship in 2004. He has resided in Australia since October 2009. The couple have four children all of whom were born in Australia. At the relevant time, which, as will be seen, was in March 2020, the children were aged 8, 16, 18 and 23.

2    On 26 June 2013, the applicant was granted a Partner (Residence) (Class BS) (subclass 801) visa.

3    The applicant’s first criminal conviction in Australia was in 2010. It was for “destroy or damage property” and he was sentenced to what is referred to as a “section 10 bond”. He then had a number of convictions in 2016 and 2017 and, finally, in 2019. These were all driving offences and, related to those offences, resisting police in the execution of their duties.

4    On 9 January 2019, the applicant was convicted in the Bankstown Local Court of “police pursuit – not stop – drive dangerously”, “resist officer in execution of duty”, “refuse or fail to submit to breath analysis” and “drive motor during disqualification period”. The conviction for the police pursuit resulted in a sentence of 15 months imprisonment with an 8 month non-parole period.

5    On 18 March 2019, the applicant’s visa was cancelled under s 501(3A) of the Migration Act 1958 (Cth) by a delegate of the Minister on the basis that the applicant did not pass the character test because he has a “substantial criminal record” as referred to in s 501(7)(c) of the Act as he had been sentenced to a term of imprisonment of more than 12 months, and was serving a sentence of full-time imprisonment.

6    In circumstances which will be set out more fully in due course, the applicant sought the revocation of the cancellation of his visa under s 501CA(4) of the Act. On 2 March 2020, a delegate of the Minister accepted that the request for a revocation had been properly made (i.e. that s 501CA(4)(a) was satisfied) but found that the applicant did not pass the character test and there was no other reason why the original decision should be revoked (i.e. that s 501CA(4)(b) was not satisfied). The original cancellation decision was therefore affirmed.

7    The applicant then applied to the Administrative Appeals Tribunal for a merits review of the delegate’s decision. On 25 May 2020, a member of the Tribunal found that the applicant’s request for a revocation had not been made within the required time period (i.e. that s 501CA(4)(a) was not satisfied) and that as a consequence neither the delegate nor the Tribunal had the power to revoke the earlier delegate’s decision to cancel the applicant’s visa. The Tribunal set aside the delegate’s decision not to revoke the cancellation and “remitted” the matter to the Minister “with a direction that the original decision of 18 March 2019 not be set aside”.

8    The applicant seeks judicial review of the Tribunal’s decision under s 476A of the Act with orders that the decision of the Tribunal be quashed and that the matter be remitted to the Tribunal (differently constituted) for a decision according to law.

Application for extension of time

9    The applicant required an extension of time in which to apply for judicial review of the Tribunal’s decision. As the delay was not long and there was a reasonable explanation for it, and the ground of review is at least reasonably arguable, the Minister did not oppose the extension. For the same reasons, I granted the extension of time and directed that the applicant’s amended draft originating application that was provided to the Court on 9 September 2020 stand as his originating application. The hearing was thus devoted to the application for judicial review.

The ground of review

10    The applicant’s sole ground of review is as follows:

The Tribunal made a jurisdictional error by holding that it had no jurisdiction to review on the merits of the decision of the Delegate not to revoke the cancellation of the Applicant’s visa.

11    As will be seen, there is some nicety to the question whether the Tribunal held that it had no jurisdiction to review the decision of the delegate as stated in the ground of review, or whether its holding that it had no authority to revoke the cancellation of the visa was a decision with regard to power rather than to jurisdiction. I will come to that.

The statutory scheme

12    Section 501CA of the Act is relevantly in the following terms:

(1)    This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.

…

(3)    As soon as practicable after making the original decision, the Minister must:

(a)     give the person, in the way that the Minister considers appropriate in the circumstances:

(i)    a written notice that sets out the original decision; and

(ii)     particulars of the relevant information; and

(b)    invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.

(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 section 501); or

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

(5)    If the Minister revokes the original decision, the original decision is taken not to have been made.

13    The time for a person to make representations to the Minister is 28 days after the person is given the notice and the particulars of relevant information under s 501CA(3)(a) of the Act: reg 2.52(2)(b) Migration Regulations 1994 (Cth).

14    In BDS20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1176 at [48]-[52] it was decided that if the representations referred to in s 501CA(3)(b) and (4)(a) are not made within the 28 day period provided for in reg 2.52(2)(b) the power to revoke the cancellation given by s 501CA is spent; there is no power to extend the time period or overlook the lateness. See also Sillars v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1313 at [69]-[92] per Katzmann J and Stewart v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 196 at [11] per Rares, Anastassiou and Stewart JJ.

15    In Stewart (at [43]) it was also held that the requirement that the representations be “made” within the 28 day period does not require that they be received by the Minister or his Department within that period, but that they be dispatched to the Minister within the period. Further (at [50]), “makes” and “made” in s 501CA and reg 2.52 require that the prisoner only do all that is reasonably in their power to “make” the representations within the prescribed period of 28 days after being given the notice of revocation.

16    The criterion for the exercise of the Minister’s power to revoke a visa cancellation expressed in s 501CA(4)(a) of the Act, i.e. that the person makes representations in accordance with the invitation, is an objective jurisdictional fact: Ali v Minister for Home Affairs [2020] FCAFC 109; 380 ALR 393 at [40] per Collier, Reeves and Derrington JJ. That is to say, “the satisfaction of [the criterion] enlivens the exercise of the statutory power or discretion in question” and “if the criterion be not satisfied then the decision purportedly made in exercise of the power or discretion will have been made without the necessary statutory authority required of the decision maker”: Gedeon v Commissioner of New South Wales Crime Commission [2008] HCA 43; 236 CLR 120 at [43] per Gummow, Kirby, Hayne, Heydon, Crennan and Kiefel JJ.

17    In contrast, the matters in s 501CA(4)(b)(i) and (ii) are subjective jurisdictional facts. The question for a court on review is not whether they existed, but whether the Minister (or delegate) was satisfied that either existed: Ali at [41].

18    Finally in relation to the statutory scheme, s 501CA(4)(b)(ii) requires the Minister to examine the factors for and against revoking the cancellation. If satisfied, following an assessment and an evaluation of those factors, that the cancellation should be revoked, the Minister is obliged to act on that view. There is a single, not a two stage, process and the Minister does not have a residual discretion to refuse to revoke the cancellation if satisfied that it should be revoked. See Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166; 153 ALD 338 at [38] per North ACJ.

The Tribunal’s decision

19    Although, as indicated above, the delegate had accepted that the applicant’s representations in favour of revocation had been made within the required period, before the Tribunal the Minister contended that they had been late and that as a consequence there was not power to revoke the cancellation.

20    The Tribunal considered this point first. It made the following factual findings which were also accepted by the Minister before me:

(1)    The applicant was sent the notice of visa cancellation with the requisite relevant information and an invitation to make submissions in support of cancellation on 18 March 2019 and he signed an acknowledgement of having received it on 19 March 2019.

(2)    The applicant prepared representations which were dated 24 March 2019.

(3)    The applicant’s son posted the applicant’s representations in the regular mail at the Martin Place post office on 25 March 2019 or soon thereafter.

(4)    The representations were not received by the Department until 14 July 2019 when they were sent and received by email, the posted representations apparently not having been received at all.

21    The Tribunal concluded that the representations were not made until they were received which was 81 days late with the result that “the [delegate’s] decision not to revoke the mandatory cancellation of the applicant’s visa was a decision in fact but without statutory authority”. Citing Re Brian Lawlor Automotive Pty Ltd and Collector of Customs (New South Wales) (1978) 1 ALD 167 (approved by the Full Court in Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd [1979] FCA 21; 24 ALR 307), the Tribunal decided that it had “jurisdiction to review the non-revocation decision” but that just as the Minister had no power to revoke the cancellation, “nor does the Tribunal”.

22    The Tribunal thus concluded as follows on the question of the lateness of the representations:

Consequently, the Tribunal may review the decision not to revoke the cancellation of Mr Law’s visa, but it is not open to the Tribunal to revoke the cancellation and to reinstate his visa. To do so would be to make a decision which was beyond the authority bestowed in the Tribunal by the Act or the Regulation.

23    Having reached that conclusion, the Tribunal then went on to “nonetheless” consider whether the applicant’s application would have been successful. The Tribunal’s stated purpose in doing this was “in the interests of providing Mr Law with some certainty as to the outcome should the power to revoke the mandatory cancellation have been enlivened”.

24    Over the next 74 paragraphs the Tribunal set out in some detail the evidence provided at the hearing, its consideration of the three primary considerations and the other considerations under Direction 79 (Direction No. 79 under s 499: Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA, instrument made on 20 December 2018) and the weight it gave to those considerations.

25    In conclusion, the Tribunal stated:

Having regard for the entirety of the circumstances and all the evidence before me, I conclude that the considerations in favour of non-revocation outweigh those in favour of revocation. In circumstances where it was open to the Tribunal to revoke the mandatory cancellation and reinstate Mr Law’s visa, the Tribunal would not have done so.

26    The Tribunal then recorded its formal or ultimate decision as follows:

The reviewable decision made on 2 March 2020, being the decision of the delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs not to revoke the mandatory cancellation decision, is set aside and the matter is remitted to the Minister with a direction that the original decision of 18 March 2019 not be set aside.

27    It should be noted that before the Tribunal, and before me, it was not in issue that the applicant did not pass the character test (i.e. that s 501CA(4)(b)(i) could not be satisfied).

Submissions of the parties

28    The Minister in his written submissions accepted that in light of the construction of s 501CA(4)(a) and reg 2.52(2) by the Full Court in Stewart it must be concluded that the Tribunal’s conclusion that the applicant failed to make representations within the prescribed period because the representations were not received by the Department during the period was wrong in law.

29    The result is that there are essentially two issues to determine, namely (1) whether the error by the Tribunal is jurisdictional error (which is required to justify the relief that the applicant seeks), and (2), if it is, whether as a matter of discretion the relief that the applicant seeks should be granted. Issue (1) raises the further questions (a) whether for the Tribunal’s error to amount to jurisdictional error it needs to be material in the sense expounded in cases such as Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 264 CLR 123 and Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421, and (b), if so, whether the error is material.

30    Issue (2) raises a similar question to the one of materiality, namely whether in view of the Tribunal’s decision that even if it had power to revoke the cancellation of the applicant’s visa it would not have done so because there was no “other reason” to do so, setting aside the decision and remitting it to the Tribunal would be futile or lacking any utility.

31    With regard to issue (1)(a), the applicant submits that materiality does not arise in the present case as there is, or should be, no requirement of materiality in relation to the jurisdictional error of finding an absence of jurisdiction where jurisdiction is present. It refers to Edwards v Santos Ltd [2011] HCA 8; 242 CLR 421 at [46] where Heydon J (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ agreeing) said of an erroneous decision by the Federal Court that it lacked jurisdiction in a case that “mistakenly to deny jurisdiction is a jurisdictional error attracting a writ of certiorari”. Also, the applicant submits that SZMTA, which the applicant describes as the leading case on materiality, does not go so far as to say that materiality is indispensable to the establishment of any and every jurisdictional error: at [45].

32    The applicant submits that the exclusion of materiality in the present context is consistent with the notion that, where an administrative tribunal finds jurisdiction to be absent, it has no further power to act save possibly with regard to costs: Qantas Airways Ltd v Lustig [2015] FCA 253; 228 FCR 148 at [109] per Perry J; Petrotimor Companhia de Petroleos SARL v Commonwealth [2003] FCAFC 83; 128 FCR 507 at [11] per Black CJ and Hill J.

33    Alternatively, on issue (1)(b) the applicant submits that there is materiality on the discrete issue of whether or not the Tribunal had jurisdiction. He submits with reference to DHX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 127; 382 ALR 246 at [93] per Collier, Rangiah and Derrington JJ that the requirement of materiality can be applied to a discrete issue, i.e. that the decision on that issue could realistically have been different.

34    In the further alternative, the applicant submits that it is important not to “underplay the complexity of the anatomy of decision-making” (SZTFQ v Minister for Immigration and Border Protection [2017] FCA 562 at [45] per Lee J) and thus to have proper regard to the fact that the Tribunal in dealing with the question of whether after balancing the various considerations there was “another reason” to revoke the visa cancellation it was engaged in a hypothetical exercise; it was not actually exercising jurisdiction or actually making a decision. The applicant submits that in the real world circumstances of the Tribunal actually making a decision adverse to the applicant, rather than merely expressing an opinion or view, there is a realistic possibility that the result might be different.

35    The Minister submits, on issue (1)(a), that materiality is an essential element of the establishment of jurisdictional error in this case. On issue (1)(b), he submits that the Tribunal’s error as to its power or authority did not affect the ultimate outcome of the review before the Tribunal because it gave detailed reasons, unaffected by its view of the existence of its power, as to why there was no other reason for revoking the visa cancellation.

36    In the latter regard, the Minister submits that the Act requires, relevantly, satisfaction of both the objective jurisdictional fact in paragraph (a) and the subjective jurisdictional fact in paragraph (b)(ii) of s 501CA(4) to be established in order for the power to revoke the visa cancellation to be enlivened. He submits that the Tribunal found that neither paragraph (a) nor (b)(ii) was satisfied, and that the error was only with regard to (a). That left, or leaves, (b)(ii) unsatisfied with the result that the power was not enlivened and the Tribunal’s ultimate decision not infected with jurisdictional error.

37    Alternatively, on issue (2) the Minister submits that if there is a finding of jurisdictional error the Court should nevertheless decline to grant the applicant the relief that he seeks in the exercise of its discretion. He submits that the Tribunal’s error would entitle the applicant to the relief that he seeks only if the error denied the applicant the possibility of a successful outcome which, he submits, is not established here because of the Tribunal’s finding of there being no other reason to revoke the cancellation. In that regard, the Minister submits that the Tribunal’s reasons in that respect revealed that the outcome of the review against the applicant was “crystal clear”: Gill v Minister for Immigration and Border Protection [2017] FCAFC 51; 250 FCR 309 per Griffiths and Moshinsky JJ at [95]-[100].

Consideration

38    For the reasons that follows, I have concluded that materiality is a necessary requirement for the Tribunal’s error to amount to jurisdictional error and that in the circumstances of the case the error was material because it deprived the applicant of a realistic possibility of a different outcome. For the same reason, in my view granting the applicant relief would not necessarily be futile and I therefore decide not to exercise my discretion against the grant of relief.

39    The starting point is to identify what the Tribunal decided. From its reasons it is apparent that the first thing that it decided is that although it had jurisdiction to entertain the review of the delegate’s decision, neither it nor the delegate had the power (or authority) to revoke the visa cancellation because on its finding of the facts (which are not in dispute before me) the objective jurisdictional fact of the applicant’s representations being made within the requisite time period was not satisfied. The other thing that the Tribunal decided is that because the delegate had misapprehended its power, because he was in error in finding that that objective jurisdictional fact had been satisfied, the delegate’s decision should be set aside but that the visa cancellation remains valid.

40    The intended effect of the order was apparently to wipe the slate clean; effectively to set aside the delegate’s decision not to exercise his jurisdiction under s 501CA(4)(b) because the Tribunal, having found that s 501CA(4)(a) was not satisfied, considered that the delegate should not, or could not, have reached s 501CA(4)(b). The remittal to the Minister is not by its terms a remittal for reconsideration. Taken together with the direction that the original mandatory cancellation “not be set aside”, it is apparently intended to mean that the revocation mechanisms are exhausted and the Minister must do what is normally done in such a case – presumably remove the applicant from the country as required by s 198(2A)(c) of the Act.

41    It is clear that the Tribunal did not purport to decide the question that arises for decision under s 501CA(4)(b) – because of its decision on s 501CA(4)(a) it did not consider itself to have reached, or be able to reach, s 501CA(4)(b). Its treatment of the subjective jurisdictional fact of whether there is “another reason” to revoke the cancellation was hypothetical; it did not purport to decide that point with any legal efficacy and it did not understand that its decision on the point had any such efficacy. Had it done so, it would logically have affirmed the delegate’s decision, not set it aside, or having set the delegate’s decision aside it would have substituted its own decision refusing the request for revocation. It did neither of these things. The Tribunal apparently regarded itself as being within the terrain identified in Petrotimor at [11] and Qantas at [109], i.e., that it had no authority to hear and determine the controversy beyond the preliminary jurisdiction that it exercised in reaching that decision and it could therefore go no further and decide any other issues.

42    The Tribunal on review has the powers under s 43 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). A decision to set aside the decision under review and remit the matter for reconsideration pursuant to s 43(1)(c)(ii) of the AAT Act requires the original repository of the powers and discretions to exercise them afresh; they are not exercised by the Tribunal: Shi v Migration Agents Registration Authority [2008] HCA 31; 235 CLR 286 at [100] per Hayne and Heydon JJ referring to Re Brian Lawlor at 175–6. From this it is clear that upon its own understanding of its authority the Tribunal was not exercising the power to consider whether there was another reason that the visa cancellation should be revoked under s 501CA(4)(b)(ii) of the Act.

43    It can be observed that there is a fundamental problem with the decision made by the Tribunal. Under s 43(1)(c) of the AAT Act, if the Tribunal sets aside the original decision, as it did here, it can either make a decision in substitution of the decision set aside or it can remit the matter for reconsideration in accordance with any directions or recommendations of the Tribunal. What it has no power to do, but which it purported to do in this case, is to simply remit the matter but not for reconsideration.

44    If the remittal to the Minister, contrary to what is stated in the Tribunal’s decision, is taken to be a remittal to the Minister for reconsideration, then the Tribunal erred in the direction that it gave. That is because rather than deciding the matter itself it impermissibly imposed its view of the inevitable decision on the Minister for the Minister (or his delegate) to make. See Civil Aviation Safety Authority v Allan [2001] FCA 1064; 114 FCR 14 at [18] per Moore J and Commonwealth of Australia v Horsfall [2010] FCA 443; 185 FCR 66 at [101]-[103] per Katzmann J.

45    Putting that problem, which was not the subject of submissions before me, to one side, I will now consider the issues that were the subject of submissions.

46    In certain respects the present case bears a remarkable similarity to Hossain. In that case there were, relevantly, two criteria that had to be met before the relevant visa could be granted. The one was that the visa application was validly made within 28 days of the applicant ceasing to hold a previous visa unless the Minister was satisfied that there were compelling reasons for not applying that criterion. The other was a public interest criterion expressed in terms that the visa applicant does not have outstanding debts to the Commonwealth unless the Minister was satisfied that appropriate arrangements had been made for repayment. See the judgment at [5].

47    The Tribunal was not satisfied on the evidence before it that either criterion was met. On that basis, the Tribunal affirmed the decision of the delegate which had been to refuse to grant a visa to the appellant. In relation to the criterion with regard to the timing of the making of the application, the Tribunal found that the appellant had not applied within 28 days of ceasing to hold a previous visa and was satisfied that there were no compelling reasons as at the time of the application for not applying the criterion. See the judgment at [6]-[7] and [44].

48    It was common ground in the review proceeding in the Federal Circuit Court and in the subsequent appeals to the Full Court of the Federal Court and to the High Court that the Tribunal erred with regard to the first criterion. The error was an error of law with regard to the power or jurisdiction to grant the visa. See the judgment at [2], [10], [23] and [26].

49    The essential question in the case was whether the Tribunal’s error with regard to the first criterion, notwithstanding its finding that the second and equally necessary criterion was not satisfied, amounted to jurisdictional error such as to justify certiorari. A subsidiary issue, as in the present case, was whether even if there was jurisdictional error, as a matter of discretion relief in the nature of certiorari should not be granted.

50    All five of the judges who heard the case in the High Court were in agreement as to the result, which was to dismiss the appeal. Keifel CJ, Gageler and Keane JJ held that the threshold of materiality – which is a requirement for jurisdictional error even in the case of an error with regard to power or authority – 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: [30]. Ordinarily, breach of a condition cannot be material unless compliance with the condition could have resulted in the making of a different decision: at [31]. Because the Tribunal was not satisfied that the second criterion was met, its error in relation to the first criterion made no difference to the result and there was thus no jurisdictional error: [35].

51    Nettle J agreed with the reasons of Edelman J: [39]. His Honour also explained that since the Tribunal’s error in relation to the one criterion was separate from and independent of the decision which it was required to make in respect of the other criterion, and the error in relation to the one criterion could not possibly have affected the decision in relation to the other, the error was not a jurisdictional error: [41]

52    Edelman J, after a survey of the authorities, held that an error will not usually be material, in the sense of affecting the exercise of power, unless there is a possibility that it could have changed the result of the exercise of power. In other words, materiality will generally require the error to deprive a person of the possibility of a successful outcome: [72]. His Honour held that because the error by the Tribunal did not affect the Tribunal’s decision, the error lacked materiality and was thus not jurisdictional error: [46].

53    It follows from Hossain that the applicant’s submission that the two criteria should be considered as independent “decisions” for the purposes of materiality cannot be accepted. Materiality looks to the ultimate outcome or result in the matter before the decision-maker not to separate integers that lead to that decision.

54    The applicant’s reliance on DHX17 at [93] as authority for the proposition that materiality operates with reference to “discrete issues” does not assist because in that case there were two distinct decisions to be made under two distinct sources of power. The one was with regard to an extension of time under s 477(2) of the Act in which to commence judicial review proceedings and the other was the decision on the review itself under s 476. It was held (at [96]-[98]) that since the two powers are independent, it was wrong of the primary judge to have found that there was no materiality with regard to the Circuit Court judge’s error on the extension of time application on the basis that the judicial review application would have failed in any event. The present case is quite different because there was only one decision to be made in the exercise of a single power, albeit that the exercise of that power depended on satisfaction of two discrete jurisdictional facts.

55    Also, the applicant seeks to get from Edwards more than it offers. Although, on that authority (at [46]), “mistakenly to deny jurisdiction is a jurisdictional error attracting a writ of certiorari”, to mistakenly deny jurisdiction on one ground but to correctly deny it on another is not jurisdictional error because the overall decision to deny jurisdiction would remain the same regardless of the error. The question of materiality did not arise to be expressly dealt with in Edwards. So the absence of mention of it does not mean that it is not a requirement in relation to an error about jurisdiction.

56    It also follows from Hossain that the Minister’s submission that the Tribunal’s error was with regard to power, or authority, and not jurisdiction, cannot be accepted. In this context, to mistakenly conclude that a power is not enlivened is a mistake as to jurisdiction in the broad sense as it is referred to in Hossain.

57    The decisive implication of Hossain for the present case is that if the Tribunal had recognised that there were two criteria which if both satisfied would result in a decision to revoke the cancellation, and it had decided that neither criterion was satisfied, its error in relation to the one criterion would not have been a jurisdictional error because it could not have produced a different outcome. That is to say, the decision or finding without error in relation to one of the criteria would in any event have been decisive, with the result that the error in relation to the other criterion was immaterial and therefore not jurisdictional error.

58    However, that is not what the Tribunal in this case did. As I have concluded, the Tribunal did not make a finding in relation to the subjective jurisdictional fact in s 501CA(b)(ii). In my view, it is decisive to this case that no decision was actually made on this necessary element. That distinguishes this case from Hossain, and it means that the Tribunal’s error was material to the outcome. Had the Tribunal not made the error that “could realistically have resulted in a different decision”, to quote from SZMTA at [45] per Bell, Gageler and Keane JJ. That is because it did not make a decision on the other necessary element, it only expressed an opinion.

59    In case it might be thought that that is a technical or semantic distinction in view of the hypothetical opinion that the Tribunal expressed with regard to the other element, it should be borne in mind that the Tribunal’s obligation of real consideration of the circumstances of the applicant had to be approached “confronting” what would be done to him by refusing the revocation; there had to be genuine consideration of the human consequences of the decision: Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; 267 FCR 628 at [3] per Allsop CJ, Markovic and Steward JJ agreeing. In the Tribunal’s consideration of whether there was “another reason” to revoke the cancellation, it could not truly confront the consequences of its decision because it had already decided in relation to the separate objective jurisdictional fact that it had no power to revoke the cancellation; its consideration of “another reason” could bear no consequences. It is a matter of speculation whether, actually confronted with the real consequence of its decision, the Tribunal’s assessment of whether there was “another reason” to revoke the cancellation might have been different.

60    The law has long recognised that there is a human element to decision-making that is affected by the consequences of the decision in question; it is not a mechanical function divorced from its real world effects. In that regard, Dixon J famously explained as follows in Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 at 361-362:

The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of mere mechanical comparison of probabilities independently of any belief in its reality. … [R]easonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved.

The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding, are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal.

61    The neurobiological basis to decision-making is described in Bennett H and Broe GA, “The civil standard of proof and the ‘test’ in Briginshaw: Is there a neurobiological basis to being ‘comfortably satisfied’?” (2012) 86 ALJ 258. See also Bennett H and Broe GA, “The neurobiology of judicial decision-making: Indigenous Australians, native title and the Australian High Court” (2009) 20 PLR 112. This scholarship supports the proposition that the Tribunal’s hypothetical decision, removed from any legal effect that it may have, may be different from a real world decision by it that has legal effect.

62    It is also to be noted that the applicant’s case is not one where the ultimate outcome, following the weighing of the various considerations for and against revocation, is clear let alone a foregone conclusion. The applicant’s offences are not at the particularly egregious end of the spectrum and he has four children, including two minor children, who are Australian citizens and who live in Australia. The interests of his children, and in particular his minor children, inevitably weigh heavily in favour of revocation. On any view, whether or not there is “another reason” to revoke the cancellation of the applicant’s visa is in this case a finely balanced question.

63    I mention as an aside, because the applicant disavowed any reliance on it, that it is not clear that the Tribunal properly applied the Direction 79 criterion of “expectations of the Australian community” in finding that “the expectations of the Australian community would be that Mr Law not hold a visa”. The Tribunal referenced the first instance decision in FYBR v Minister for Home Affairs [2019] FCA 500, rather than the appeal decision FYBR v Minister for Home Affairs [2019] FCAFC 185; 272 FCR 454. On one view, it is an error of law in the construction of the relevant clause of Direction 79 to conclude, as the Tribunal did, that the community expects a particular outcome in the particular case. See the appeal judgment at [97], but cf. [72].

64    Where materiality is in issue in an application for judicial review, and except in a case where the decision made was the only decision legally available to be made, the question of the materiality of the breach is an ordinary question of fact in respect of which the applicant bears the onus of proof.  Like any ordinary question of fact, it is to be determined by inferences drawn from evidence adduced on the application. See SZMTA at [4], [41] and [46] per Kiefel CJ, Gageler and Keane JJ.

65    The point is that if the Tribunal had reconsidered the s 501CA(4)(b)(ii) question in the context of having to actually decide the fate of the applicant’s revocation application, there is a realistic possibility that a different conclusion would have been reached.

66    Those considerations also deal with the Minister’s submissions with regard to the Court’s discretion not to grant relief in reliance on Gill – this is not a case where I consider that I should exercise my discretion against the grant of relief because the outcome is in any event “crystal clear”. As I have indicated, it is far from that, particularly if the matter is considered by the Tribunal differently constituted.

Disposition

67    For the above reasons, the applicant should have relief quashing the decision of the Tribunal and remitting the matter to the Tribunal to be decided according to law.

68    The applicant seeks an order, in the event that I decide to quash the Tribunal’s decision, that on remittal to the Tribunal the Tribunal should be differently constituted. It is not in issue that the Court has the power to make such an order within its statutory power under s 23 of the Federal Court of Australia Act 1976 (Cth) “to make orders of such kinds … as the Court thinks appropriate”. The applicant’s stated justification for the order is, as I understand it, twofold: the member of the Tribunal who made the first decision might actually, whether consciously or otherwise, prejudge the issue having already decided it albeit in a hypothetical context, and that there should be the avoidance of the appearance of the possibility that the member will prejudge the issue. The Minister submits that the constitution of the Tribunal should be left to the discretion of the President of the Administrative Appeals Tribunal under s 19A of the AAT Act.

69    In my view, for reasons already canvassed, the context in which the Tribunal expressed an opinion on whether or not there is “another reason” to revoke the visa cancellation is materially different from the context in which an actual decision with legal effect has to be made on that point. However, given his already stated view, it is likely that the reasonably informed lay observer will apprehend that the member of the Tribunal might in some way be influenced by the fact that he has previously recorded an opinion on the issue and therefore be seen to have prejudged the issue. Justice therefore suggests that the Tribunal should be differently constituted. The President will doubtless take that view into account in constituting the Tribunal to hear the matter again. It is not necessary to make an order in that regard.

70    There is no apparent reason why the costs should not follow the result.

Associate:

Dated:    1 December 2020