Federal Court of Australia

Okoh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 84

ORDERS

THE COURT ORDERS THAT:

1.    The applicant have leave to file and serve and rely upon the further amended application annexed to the affidavit of Hamish William Glenister affirmed on 13 January 2021.

2.    The applicant file the further amended application within seven days.

3.    The applicant be granted leave to adduce into evidence the transcript of the hearing before the Administrative Appeals Tribunal.

4.    There issue absolute in the first instance a writ of certiorari directed to the second respondent quashing its decision made on 26 August 2020.

5.    There issue absolute in the first instance a writ of mandamus directed to the second respondent requiring it to determine the applicant’s application for review according to law.

6.    The first respondent pay the applicant’s costs of and incidental to the application.

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

REASONS FOR JUDGMENT

DERRINGTON J:

introduction

1    This was an application for the review of a decision of the Administrative Appeals Tribunal (the Tribunal) which affirmed the decision of the Minister’s delegate not to revoke the cancellation of the applicant’s visa under s 501CA of the Migration Act 1958 (Cth) (Migration Act).

2    For the reasons which follow, the application must be allowed. Although the criminal conduct engaged in by the applicant was serious (albeit not as serious as in some other cases), in concluding that it was not satisfied there was another reason why the cancellation of the applicant’s visa should be revoked, the Tribunal was obliged to take into account the matters stipulated by the Minister in Direction No. 79 issued under the Migration Act. In this case, it failed to do so correctly. The Minister’s requirements set out in the Direction are important matters which not only create legal requirements for the fulfilment of the obligation in s 501CA(4), but compliance with them also provides for consistency in the administration of the Act. Here, despite an otherwise careful consideration of the applicant’s circumstances, the Tribunal overlooked the consideration of a number of matters which resulted in its conclusion being affected by jurisdictional error.

Background

3    The applicant is a citizen of Nigeria who arrived in Australia in 2014 on a student visa. On 10 October 2015, he was granted a permanent skilled visa.

4    On 29 March 2019, he pleaded guilty to money laundering and was sentenced to three years’ imprisonment. As a consequence, his visa was mandatorily cancelled on 7 October 2019 under s 501(3A) of the Migration Act on the basis that he did not pass the character test due to his substantial criminal record (the visa cancellation decision).

5    On 15 October 2019, the applicant made representations seeking revocation of the visa cancellation decision. On 4 June 2020, a delegate of the Minister decided not to revoke the visa cancellation decision (the delegate’s decision).

6    On 10 June 2020, the applicant applied to the Tribunal for review of the delegate’s decision. On 26 August 2020, the Tribunal affirmed the delegate’s decision (the Tribunal’s decision).

7    On 9 September 2020, he filed the present application for judicial review of the Tribunal’s decision.

The Tribunal’s decision

8    The Tribunal noted that the applicant conceded that he did not pass the character test and, therefore, proceeded to consider whether there was another reason to revoke the cancellation of his visa. It acknowledged that, in undertaking that task, it was required to apply Direction No. 79 which stipulated a number of considerations that must be taken into account. The primary considerations are the protection of the Australian community, the best interests of minor children in Australia, and the expectations of the Australian community. The other considerations that must be taken into account, where relevant, are Australia’s international non-refoulement obligations, the strength, nature and duration of the applicant’s ties to Australia, the impact on Australian business interests, the impact on victims of the applicant’s criminal behaviour, and the extent of impediments to the applicant re-establishing himself if removed.

9    Ultimately, the Tribunal affirmed the delegate’s decision, concluding at [156] to [160]:

156. Mr Okoh has been convicted of one offence. It did not involve violence or harming vulnerable members of the community. However, crimes of a financial nature have a far-reaching effect on members of the community, and at the time of his offending, Mr Okoh expressed an intention to continue his crimes but only in relation to romance fraud. Mr Okoh’s remorse and rehabilitation is unconvincing, and there remains a prospect that he will reoffend, even if this prospect is lower than at the time he committed the offence.

157. The Primary Considerations of the protection of the Australian community and the expectations of the Australian community weigh in favour of not revoking the cancellation of Mr Okoh’s visa. The Primary Consideration of the best interests of minor children in Australia weighs in favour of revoking the cancellation.

158. In respect of the Other Considerations, there are no international non-refoulement obligations owed to Mr Okoh. There is an impact on family members who are in Australia if he is removed from Australia, and the possibility he will pay restitution will be lost. He will be required to re-establish himself in Nigeria. These factors weigh somewhat in favour of revoking the cancellation of his visa.

159. Two Primary Considerations weigh in favour of not revoking the cancellation of his visa, and one weighs against. The Tribunal places less significant weight on the best interests of the child in relation to the other Primary Considerations as Mr Okoh does not play a parental role and is able to otherwise maintain contact with the children. The Other Considerations that weigh in Mr Okoh’s favour do so to a moderate extent.

160. The Tribunal considers the protection of Australian community and the expectations of the Australian community outweigh the interests of minor children in Australia and the Other Considerations, and the decision under review is affirmed.

10    Of particular relevance in the present application is the manner in which the Tribunal applied Direction No. 79 when considering the strength, nature and duration of the applicant’s ties to Australia. Nevertheless, it must be accepted that its consideration of the protection of the Australian community was foundational to its ultimate conclusion.

Protection of the Australian community

11    The Tribunal noted that although the applicant had been convicted of a serious offence, it was not sexual or violent, nor was it committed against vulnerable members of the community or government representatives. The Tribunal further acknowledged that the offence was the only one for which the applicant has been convicted, and that there is no indication that he has committed any further offences while in detention. It also noted that although the applicant did not provide false or misleading information to the Department, he did attempt to mislead the police during their investigation. Overall, the Tribunal concluded that the nature and seriousness of his offending weighed in favour of not revoking the cancellation of his visa (at [36]).

12    The Tribunal went on to consider the risk to the Australian community should the applicant commit further offences or engage in other serious conduct. In this respect, it noted the following facts:

(a)    The sentencing judge found that the applicant was not merely a “money mule” with no direct connection to the fraudulent conduct which resulted in his conviction, rather he was highly educated and consciously participated in the “phishing” scam. Although he did not instigate the scam, his participation was key to its success (at [49]).

(b)    The sentencing judge had found that the applicant committed the offence out of greed and withheld money from his co-offenders for the same reason (at [39]). At the hearing before the Tribunal the applicant continued to avoid this finding (at [43]).

(c)    The sentencing judge noted that the applicant had indicated in text messages that he intended to continue his offending conduct in relation to “romance frauds” (at [39]), which raised the prospect that he may exploit people who are vulnerable in the community (at [41]).

(d)    The sentencing judge stated that the applicant tried to deflect responsibility for his offending and minimise his culpability (at [42]).

(e)    The applicant had undertaken courses in prison and in immigration detention which he submitted have assisted him to understand his offending and learn his lesson (at [40]).

(f)    The applicant’s behaviour in prison and in immigration detention has not attracted any adverse comments, and he has received positive employment reports in prison (at [69]).

(g)    In his response to the cancellation of his visa, the applicant stated that he considered himself to be a person of good moral character (at [46] – [47]).

(h)    Two of the applicant’s brothers have also been convicted of money laundering offences. The applicant indicated in his initial written statement to the Department in respect of his visa cancellation that his brothers’ success in conducting online scams had influenced him to become involved (at [48]). He indicated that if he is released, he will be in contact with his brothers, which the Tribunal noted was a “similar environment to that in which his offences were committed” (at [51]).

(i)    The sentencing judge considered the applicant’s prospects for rehabilitation to be moderate in 2019 (at [42] and [67]).

(j)    A psychological report provided by the applicant to the Tribunal indicated that his likelihood of reoffending was low in July 2020 (at [60]).

13    The Tribunal concluded that the applicant has a “low to moderate risk of engaging in further criminal conduct”, as the prospect of him engaging in other types of fraud (such as romance fraud) remains a real possibility (at [80]). This factor was said to weigh “somewhat in favour” of not revoking the visa cancellation decision (at [81]).

Strength, nature and duration of ties to Australia

14    The Tribunal noted that the applicant, at the time of its decision, had been in Australia for six years and that his offending occurred only four years after his arrival. It identified that as being a relatively short period in the context of the seriousness of the offence (at [131]).

15    The Tribunal further observed that the applicant has been in a committed relationship for five years and that his partner has indicated that she is not willing to return to Nigeria with him. It also noted that the applicant has three brothers and a sister who live in Australia, as well as three nephews and three nieces.

16    The Tribunal also noted that the applicant has been employed from the date of his arrival in Australia and has contributed positively to the community through his work as an educator, and disability support worker, as well as his involvement in the Nigerian Association of Northern Territory, Australia (NANTA).

17    The Tribunal concluded (at [138]):

Mr Okoh has contributed to the community for a short period prior to his offending. He has family members who are Australian permanent residents and citizens. Overall, the Tribunal considers this a neutral factor in this matter, as the relatively short time he has contributed to the Australian community balances his family ties in Australia.

(Emphasis added).

18    Later, the Tribunal also observed (at [158]) that “[t]here is an impact on family members who are in Australia if he is removed from Australia”, identifying this as one of several factors which it said weighed “somewhat in favour” of not revoking the visa cancellation decision.

Grounds of review

19    The grounds of review as set out in the applicant’s amended originating application of 12 November 2020 can be summarised as follows:

(1)    The Tribunal erred by failing to complete its statutory task in compliance with Direction No. 79, in that it misconstrued, misunderstood and / or misapplied para 14.2(1), which requires regard to be had to the strength, nature and duration of the applicant’s ties to Australia.

(2)    Further, or in the alternative, the Tribunal erred by reaching a conclusion that no reasonable decision-maker could reach in relation to the applicant’s ties to Australia.

(3)    The Tribunal erred by failing to complete its statutory task in compliance with Direction No. 79, in that it failed to take into account the effect of non-revocation on members of the applicant’s immediate family in Australia as required by para 14.2(1)(b).

20    The applicant also sought leave by way of an interlocutory application filed on 14 January 2021 to rely upon an additional ground, namely:

(4)    The Tribunal erred by failing to complete its statutory task by failing to consider representations made by the applicant about the risk of his re-offending.

21    The Minister did not oppose the granting of leave and, based upon the contents of the affidavit filed in support of leave, it should be granted.

Consideration

22    Before considering the grounds of review, it is convenient to briefly consider the operation of s 501CA(4) of the Migration Act, which relevantly provides that the Minister may revoke a decision to cancel a visa if the Minister is satisfied that the person either passes the character test or that there is “another reason why the original decision should be revoked”.

23    Several recent Full Court authorities have discussed the operation of s 501CA(4) and, in particular, the incorporation of the substantive deliberative process (i.e. whether there is another reason why the cancellation decision should be revoked) into the Minister’s function of forming a state of mind: see, eg, Ali v Minister for Home Affairs [2020] FCAFC 109 (Ali) at [39] – [44] and Guclukol v Minister for Home Affairs [2020] FCAFC 148 at [16]. It is unnecessary to repeat that discussion here. The critical point is that the formation of the required state of satisfaction is a subjective jurisdictional fact. The import of this is that in identifying the grounds on which the Tribunal’s decision can be reviewed, the applicable principles are those identified by Dixon J in Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353 at 360.

24    It should be noted at the outset that this distinction was not fully acknowledged by the parties in their written submissions.

Ground 1: Direction No. 79 and the applicant’s ties to Australia

25    Paragraph 14.2 of Direction No. 79 provides that in considering the strength, nature and duration of an applicant’s ties to Australia, a decision-maker must have regard to:

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

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

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

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

26    The organisation of para 14.2 indicates that the decision-maker is required to have regard to two distinct matters: the duration of the applicant’s residence in Australia (para 14.2(1)(a) – referred to in this judgment as the “residence sub-consideration”); and the strength, duration and nature of family and social links in Australia (para 14.2(1)(b) – referred to in this judgment as the “family ties sub-consideration”).

27    In the present case, the Tribunal concluded at [138] that “overall”, the short time the applicant has contributed to the Australian community “balance[d]” his family ties in Australia. The applicant submitted that, in order for the Tribunal to reach this conclusion, it must have attached adverse or negative weight to the residence sub-consideration (so as to counterbalance the import of the significant family ties the applicant possesses in Australia). He contended that this approach was not open on a correct construction of Direction No. 79. He further submitted that had the Tribunal not made this error, it would have attached favourable weight to the strength, nature and duration of his ties to Australia, which could have formed a reason or part of a reason to revoke the cancellation of his visa.

28    A fair reading of the Tribunal’s language at [138] indicates that, in this part of its reasons, it misconstrued para 14.2 in two related respects: first, it erred in attributing an adverse significance to the time the applicant spent contributing positively to the Australian community and second, it consequently misconceived the exercise required by that paragraph of Direction No. 79. It is apposite to consider each of these related issues in turn.

Attaching adverse weight to the residence sub-consideration

29    As a starting point, the language used by the Tribunal at [138] supports the applicant’s contention that the Tribunal must have considered that the residence sub-consideration weighed against revocation. In particular, the conclusion that overall the consideration in para 14.2 was “neutral” and the use of the word “balances” indicates that it considered the residence sub-consideration (and more specifically the short time the applicant has contributed to the Australian community) weighed against revocation to the same degree the family ties sub-consideration weighed in favour of it. Although Mr Johnson for the Minister sought to eschew that construction of [138] and, in doing so, relied upon the Tribunal’s wording as being enigmatic, infelicitous or confused, ultimately the words used bear no other meaning than that identified.

30    Broadly speaking, paragraph 8(3) of the Direction provides that both primary and other considerations may weigh in favour of, or against, whether to revoke a mandatory cancellation of a visa. In considering the Direction as a whole, it is clear that certain considerations – such as the protection of the Australian community from criminal conduct, the expectations of the Australian community, and the impact on victims – are intended to generally weigh against revoking the cancellation of an applicant’s visa, while others – such as international non-refoulement obligations and the extent of impediments if removed – are intended to generally weigh in favour of revoking the cancellation of an applicant’s visa. On a common sense approach, the strength, nature and duration of the applicant’s ties to Australia (i.e. para 14.2 as a whole) is a consideration which generally falls into the latter category. On a similar approach, the family ties sub-consideration may generally be placed in the same category.

31    The text of para 14.2 appears to indicate that the duration of the applicant’s residence in Australia is not to be held against the applicant by the decision-maker and proffered as an independent ground weighing against the ascertainment of there being another reason why the cancellation should be revoked. Rather, the intent of this paragraph as a whole is to provide a potential counterweight consideration which may justify allowing a non-citizen to remain in Australia, despite criminal or serious conduct. This construction is further supported by paragraph 6.3(5) of the Direction, which provides:

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

(Emphasis added).

32    For these reasons, the applicant’s submission that the residence sub-consideration must, save perhaps in exceptional circumstances, favour revocation or be neutral ought to be accepted: it is not intended to be adverse to the applicant. As the applicant submitted, if it were otherwise, on a literal and grammatical reading, the wording of para 14.2(1)(a)(i) and (ii) would become nonsensical, allowing more adverse weight to be given to the applicant’s ties where the applicant has made positive contributions to the Australian community, and less adverse weight to be given where the applicant has offended shortly after arriving in Australia.

33    The Minister submitted that the Tribunal’s conclusion at [138] should be read in the context of its reasons as a whole and, as such, it was arguable that the Tribunal attributed a neutral character to the applicant’s ties to Australia in light of its finding (at [131]) that the applicant began offending shortly after arriving in Australia. This overly generous reading fails to properly account for the Tribunal’s use of the word “balances” and overlooks the actual words used by the Tribunal. The Tribunal in fact stated at [138] that “the relatively short time he has contributed to the Australian community balances his family ties in Australia” (emphasis added). This demonstrated that it actually attributed an adverse weight to the residence sub-consideration on the basis of the short time the applicant spent contributing positively to the Australian community, not – as the Minister contended – the time between the applicant’s arrival in Australia and the commission of the offence.

34    It is not necessary in this case to reach any final conclusion as to whether the residence sub-consideration must always be a neutral or positive factor in favour of revocation. Mr Johnson for the Minister quite properly accepted that, in the circumstances of this case, it was not possible for the Tribunal to conclude that the circumstances were such that the residence sub-consideration weighed against revocation. His submissions were to the effect that the Tribunal did not give it negative weight. As mentioned, they must be rejected.

35    Consequently, the Tribunal’s reasoning and conclusion at [138] – that the short time the applicant has spent contributing positively to the Australian community was a consideration adverse to the applicant – was not open to it. At least for present purposes, para 14.2(1)(a) of the Direction could only give rise to a consideration which was neutral or positive.

36    It must be added that the Direction does not preclude a decision-maker from taking into account the length of the period of time between the applicant’s arrival in Australia and the commencement of offending. The fact that a person engages in criminal conduct shortly after arriving in Australia might suggest the absence of an intention to act in accordance with the normative standards of behaviour required of Australian society. Such a conclusion would weigh negatively in the formation of whether there was another reason as to why the cancellation decision should be revoked. This issue may fall within para 13.1.1 of the Direction although it was not discussed by the Tribunal in the section of its reasons dealing with that clause. In any event, the Tribunal relied upon the relatively short time the applicant had contributed to the Australian community as the negative factor and not the speed with which the applicant commenced his criminal activities.

The exercise required by paragraph 14.2 of Direction No. 79

37    Having improperly characterised the residence sub-consideration as adverse to the applicant, the Tribunal further erred in characterising and undertaking the exercise required by para 14.2 of Direction No. 79.

38    As explained above, the language used in sub-para 14.2(1)(a) supports a construction that the residence sub-consideration cannot weigh adversely against revocation. Of course, less weight can be ascribed to this sub-consideration if the applicant began offending shortly after arriving in Australia, however the weight ascribed to a consideration is distinct from the character of that consideration, which, in the case of sub-para 14.2(1)(a), will remain either favourable or neutral to the revocation of the cancellation decision, save in exceptional circumstances. Likewise, as observed above, sub-para 14.2(1)(b) will remain either favourable or neutral, save in exceptional circumstances.

39    Consequently, in the circumstances of the present matter, it is an erroneous application of the Direction to conduct a balancing exercise between the considerations described in 14.2(1)(a) and 14.2(1)(b), because they are not, and probably cannot be, opposing considerations. Rather, the “weight” to be ascribed is to sub-consideration 14.2(1)(a) as it informs the character of the consideration as a whole (being the strength, nature and duration of the applicant’s ties to Australia). The decision-maker is not bound to give more or less weight to the whole consideration because para 14.2(1)(a)(i) or (ii) applies: FCFY v Minister for Home Affairs (No 2) [2019] FCA 1990 (FCFY) [62], applied in Downes v Minister for Home Affairs [2020] FCA 54 [73], [78]. Weight is to be ascribed to the duration of the non-citizen’s residence as a consideration independent of, and separate to, the non-citizen’s family and social ties. In other words, para 14.2(1)(a)(i) does not have operative effect in relation to the entirety of para 14.2(1). For example, where an applicant has lived in Australia for many years and has significant family ties here, but began offending shortly after arriving, less weight should be given to the duration of the applicant’s residency as a consideration in favour of revocation. The applicant’s significant family ties will still however remain an independent consideration in favour of revocation, which will not be “counterbalanced”, “reduced” or “negated” in any respect by the timing of the applicant’s offending.

40    In disputing this construction, the Minister relied on RZMW v Minister for Home Affairs (2019) 168 ALD 176 (RZMW) at 180 [20] to support the proposition that it is open to the Tribunal to give less weight to the strength, nature and duration of the applicant’s ties to Australia if the applicant began offending soon after arriving. Such were the circumstances in that case and the Tribunal concluded that this consideration still weighed “slightly in favour of the Applicant”, however it was not out-weighed by the other considerations weighing against him. The Minister conceded that the Tribunal erred in so far as it found that para 14.2(1)(a)(i) had operational effect in relation to the entirety of para 14.2(1), however submitted that this error was not material because it was still open to the Tribunal to give para 14.2 less weight overall because of the applicant’s history of offending, although this was not mandated by para 14.2(1)(a). Jackson J accepted the Minister’s submissions, concluding at [20]:

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

41    The Tribunal’s approach in that matter can be contrasted with the present case. There, the Tribunal merely made a global assessment of the weight to be given to the considerations in para 14.2. That approach would have produced the same result had the Tribunal separately assessed the respective weights of the matters in para 14.2(1)(a) and (b) such that no error occurred in the result. Here, the Tribunal mischaracterised the residence sub-consideration and ascribed to it a negative weight, which resulted in the Tribunal mistakenly balancing the internal sub-considerations of para 14.2 against each other, which ultimately led it (at [138]) to incorrectly characterise the applicant’s ties to Australia as “neutral”.

42    However, that is not the end of the matter. The Minister submits that if the Tribunal’s initial analysis at [138] was in error, it did not carry through to the final conclusion. At [158], the Tribunal, as part of its overall consideration, revisited the weight to be accorded to the strength, nature and duration of the applicant’s ties. The Tribunal said:

158.    In respect of the Other Considerations, there are no international non-refoulement obligations owed to Mr Okoh. There is an impact on family members who are in Australia if he is removed from Australia, and the possibility he will pay restitution will be lost. He will be required to re-establish himself in Nigeria. These factors weigh somewhat in favour of revoking the cancellation of his visa.    

43    The reference to “an impact on the family members who are in Australia if he is removed” is a reference to part of the family ties sub-consideration in para 14.2(1)(b) of Direction No. 79 and it was not suggested otherwise. It seems that the Tribunal held that this consideration alone or in combination with the other identified factors, weighed “somewhat in favour of revoking the cancellation” of the visa. Necessarily, there is some tension between this analysis and that at [138] where the family ties sub-consideration was negated by the counterveiling weight of the small contribution to the Australian community. In the course of submissions Mr Johnson sought to minimise this inconsistency.

44    At best, the identification of the impact of the applicant’s removal on family members who are in Australia as a factor that weighed somewhat in favour of revoking the visa cancellation decision merely acknowledges the favourable weight attached to the family ties sub-consideration at [138]. This does not supersede the erroneous analysis at [138], particular in light of the tone of the Tribunal’s language at [131] which suggests it viewed the “relatively short period before his offending began” unfavourably.

45    There is a further difficulty with the Minister’s submission. Mr Glenister for the applicant submitted that if [138] is ignored in favour of [158] as the foundation of the decisional process on this issue, the conclusion remains problematic. Paragraph 14.2(1)(b) requires the Tribunal to have regard to the “strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia”. Mr Glenister submitted that whilst the Tribunal may have considered the impact on family members in paragraph [158], it took no account of the applicant’s ties with other members of the community. In this respect, although the Tribunal had recognised that evidence had been adduced through letters of support from persons identified as Victor Okafor, Gbenga Olusoji and Onyinye Maduneme as to his close personal association with them, his role in NANTA, and his standing as a role model for young Nigerians, none of those matters were accorded any weight in the reasons. This stands in contrast to the reference, albeit brief, to the impact on family members were the revocation order not made.

46    There is much force in Mr Glenister’s submissions in this respect. The Tribunal’s comments at [158] appear to refer to the matters to which it was prepared to give some weight in favour of revoking the cancellation, but there is no mention of the social links with other Australians. Although the Court must not be astute to read the reasons with an eye to error, in light of the form of the reasons generally and of the manner in which the conclusion is expressed and, in particular, paragraph [158], it is apparent that the Tribunal failed to take into account all of the matters in para 14.2(1)(b) as it was required to do.

47    In any event, the manner in which the Tribunal dealt with the considerations in para 14.2(1) of the Direction were reflected more precisely in [138] of its reasons than in the conclusory statement in [158] and, as identified above, that approach was wrong in law.

Conclusion on ground 1

48    In forming its state of satisfaction that there was, or was not, “another reason why” the visa cancellation decision should be revoked, the Tribunal was required to proceed on a correct understanding of the law: Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 at [30], citing Wei v Minister for Immigration & Border Protection (2015) 257 CLR 22 at 35 [33] and Graham v Minister for Immigration & Border Protection [2017] HCA 33 at [57]. By reason of the foregoing, it failed to do so. The most serious error was the wrongful attribution of negative weight to the matters required to be considered pursuant to para 14.2(1)(a)(i). That reflected a misunderstanding of the operation of Direction No. 79 generally or, at least, in the circumstances of this case. In addition, even if the error which appears in [138] of the Tribunal’s reasons might be mitigated by the reasoning in [158], that latter paragraph reveals a failure by the Tribunal to take into account a matter which was relevant in this case, being the applicant’s ties with Australian citizens and permanent residents other than his family members. It might also be said that the same error can be discerned in [138] where the negative weight of the consideration of the matters in para 14.2(1)(a) was set off against only one of the matters in para 14.2(1)(b) where others also had to be taken into account.

49    It must be acknowledged that the Tribunal’s failure to consider the applicant’s social ties was not raised as a standalone ground which vitiated the decision. Rather, it seems it was raised as being indicative of the incomplete and superficial nature of the conclusory comments in [158]. Very properly, Mr Johnson for the Minister took no objection to this course.

50    It follows that the Tribunal’s lack of satisfaction that there was not another reason why the cancellation decision should be revoked was vitiated by error and its determination not to exercise the power under s 501CA(4) suffered from a jurisdictional error.

Ground 2: Unreasonable conclusion

51    This ground was not pursued by the applicant and given the conclusion reached in respect of ground 1, it is unnecessary to consider it. Nevertheless, it should be observed that the statutory process being undertaken was the formation of a state of mind, not the exercise of a power or discretion. For that reason, questions of “unreasonableness” to the extent it might vitiate a purported exercise of power are irrelevant. On the other hand, as was demonstrated in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 (at 623 – 625 [34] – [42] per Gummow ACJ and Kiefel J; 648 – 649 [133] per Crennan and Bell JJ), illogicality or irrationality in the formation of a state of satisfaction may vitiate it and cause any subsequent purported exercise of power to be affected by a jurisdictional error.

Ground 3: Failure to take into account the effect of non-revocation on family members

52    The family ties sub-consideration in para 14.2(1)(b) expressly provides that the Tribunal must have regard to the effect of non-revocation on the non-citizen’s immediate family in Australia. The applicant submitted that the Tribunal erred in failing to do so, or in failing to engage in an active intellectual process in this respect. He further contended that had the Tribunal not made this error, it could have accorded more weight to the consideration at para 14.2 of the Direction, which could have formed a reason, or part of a reason, to revoke the cancellation of his visa.

53    It is now accepted that, although there is no explicit statutory duty on the Minister (or a subsequent decision-maker) under s 501CA(4) to “consider” representations made in support of a revocation request, it is necessarily implicit in the statutory regime that there is such an obligation: Minister for Home Affairs v Omar (2019) 272 FCR 589 (Omar) at 606 [36](d); GBV18 v Minister for Home Affairs [2020] FCAFC 17 at [31](a). In this respect, the decision-maker is obliged to engage in an “active intellectual process” in order to give meaningful consideration to significant and clearly expressed relevant representations: Omar, 607 [37]; see also Hands v Minister for Immigration and Border Protection (2018) 267 FCR 628 (Hands) at 630 [3]. Moreover, a failure to consider, by engaging in an active intellectual process, a clearly articulated ground raised in the representations amounts to an error which may vitiate the Tribunal’s putatively formed state of mind that there was no other reason to revoke the cancellation decision: Ali [45].

54    In his representations to the Department, the applicant consistently identified the suffering of his immediate family as a reason for revoking the cancellation of his visa. Although in his initial submissions he relied upon a failure by the Tribunal to take account of the impact on his partner, his dependent parent, nieces, nephews and sister, during the course of the appeal this ground was restricted to the impact on his partner, a person called Ms Olaremi Agbede. Ms Agbede wrote a letter of support for the applicant in which she claimed that since his incarceration (presumably in jail for his crimes), she had been through a lot of emotional turmoil and suffered loss and grief, and that she lacked support from friends and family as a result of the applicant’s conviction. She added that if the applicant was deported it will cause her further emotional turmoil and will strain the relationship and bring it to an end.

55    It appears that Ms Agbede gave evidence at the hearing before the Tribunal although her name in the transcript is given as Ms Advedeh. This person claimed to be the applicant’s partner and that she had been for some four years. In her evidence she said she had derived emotional support from the applicant even whilst he was incarcerated and that he had previously assisted her in pursuing her career. She again stated that after his conviction a lot of people withdrew from her and she was stigmatised by her relationship with him. She further stated that she and the applicant had planned to move in together, get married, and start a family. Ms Advedeh said that if the applicant were required to return to Nigeria she would suffer loss, grief and emotional turmoil.

56    The above matters were referred to in the applicant’s supplementary Statement of Facts, Issues and Contentions (SSFIC) where it was asserted (at [62]):

The Applicant has an Australian permanent resident partner and they plan to move in with each other upon his release. The Applicant and his partner have known each other for 5 years and have been in a relationship for over 3 years. The Applicant and his partner draw a high level of emotional support from one another and wish to marry in the near future. Their plans involve settling in Australia. If the Applicant is deported, it would ultimately result in the end of their relationship.

57    There was nothing to suggest that the applicant’s contention that Ms Agbede would suffer emotional loss and suffering if he were required to return to Nigeria was questioned by the Minister or the Tribunal.

58    The Tribunal’s “consideration” of the effect of non-revocation on the applicant’s immediate family was conclusory at best. Under the heading, “The strength, nature and duration of ties to Australia”, the Tribunal described (at [132] and [133]) the family links the applicant had in Australia, which include his three brothers, his sister, and his nieces and nephews. The Tribunal did not consider the effect of non-revocation on these persons beyond identifying them. The Tribunal did state at paragraph [158], “[t]here is an impact on family members who are in Australia if he is removed from Australia”, which – in combination with several other unrelated factors – was described as weighing “somewhat in favour” of revoking the cancellation of his visa.

59    In relation to Ms Agbede specifically, the Tribunal made the following observations in its reasons at [132]:

132.     Mr Okoh has been in a committed relationship with Ms Olaremi Agbede for five years, although he has been in prison or in immigration detention for the last two years. Ms Agbede gave evidence to the Tribunal and stated that she is willing to live elsewhere in Australia with Mr Okoh if he is released from detention but is not be willing to return to Nigeria with him as her life is now in Australia.

60    The Minister submitted that the brevity of the Tribunal’s reasons in addressing the interests of the applicant’s family does not, of itself, point to a failure by the Tribunal to consider the effect of non-revocation on these persons. Reliance was placed on RZMW (at 180 – 181 [21] – [22]) to the effect that the Tribunal’s treatment of a consideration must be read in the context of the evidence and the rest of the reasons. The Minister submitted that the obligation to “consider” a matter is not an obligation to express findings about a particular matter in a particular way. He contended that it was sufficient for the Tribunal to accept that the effect of non-revocation on the applicant’s family would be negative and that it was unnecessary for the Tribunal to go into detail to reinforce that conclusion. He went further and submitted that the Tribunal’s observation that Ms Agbede would not return to Nigeria carried with it a conclusion that the relationship would break down and that Ms Agbede would suffer further emotional suffering as a result.

61    With the greatest respect to Mr Johnson, these submissions cannot be accepted. The Tribunal’s observation that Ms Agbede would not return to Nigeria was merely a recitation of that fact as it had been received by the Tribunal. There is nothing in [132] which suggests that the Tribunal considered the personal consequences to Ms Agbede if the cancellation decision was not revoked. That issue is neither expressly nor implicitly addressed in the reasons and it follows that the “impact on the non-citizen’s immediate family in Australia”, insofar as that relates to Ms Agbede, was also not addressed in the reasons.

62    Mr Johnson also submitted that the absence of any reasons concerning the impact on Ms Agbede of the non-revocation of the cancellation decision did not establish that it was not considered by the Tribunal. As the authorities referred to above indicate, it may well be that a decision-maker will have considered a matter which is not expressly referred to in the reasons and that the onus is on the applicant to establish that it was ignored. However, here the structure and content of the reasons strongly indicate that if the impact on Ms Agbede had been considered by the Tribunal, such consideration would have been reflected in the reasons. In the section of the reasons dealing with the strength, nature and duration of the applicant’s ties to Australia, the Tribunal set out para 14.2(1) of Direction No. 79 and in the following paragraphs identified some of the evidence relating to that topic. It did not refer to the evidence which was before it concerning the impact on Ms Agbede and nor did it refer to the submissions made in that regard. No reason was provided as to why some of the evidence relating to the impact on the applicant’s immediate family was referred to but that relating to Ms Agbede was not. Moreover, the impact on Ms Agbede was the most significant issue in the consideration of this factor and the failure to refer to it tends to suggest that it has been overlooked.

63    The Minister’s submissions in this respect are difficult to reconcile with the Chief Justice’s observations in Hands (with which Markovic J agreed). At [3], his Honour emphasised the importance, in cases under s 501 of the Migration Act, of decision-makers confronting the human consequences that removal from Australia can bring about, stating:

[W]here 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.

(Emphasis added).

64    It was not suggested by Mr Johnson that the principle articulated by the Chief Justice was in error or ought not to be followed. That is not surprising given that those comments have been referred to with approval in many subsequent decisions and, in particular, in MQGT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 215. There, the Court (Jagot, Kerr and Anastassiou JJ) cited the above quote from Hands and then referred with approval to the discussion of Charlesworth J in Hernandez v Minister for Home Affairs [2020] FCA 415 concerning the Minister’s obligation under s 501CA(4) to consider representations made on behalf of the applicant. In that latter decision, Charlesworth J had held that there existed an obligation on the Minister to consider the representations made by an applicant and to engage in an active intellectual process with each significant and clearly expressed representation. Her Honour observed that the practical content of that obligation was identified in Omar (at 607 [39]) as requiring more than sampling, acknowledging or noting representations have been made and, depending upon their nature and content, may require specific findings of fact by reference to the relevant parts of the representations.

65    There is nothing in the Tribunal’s reasons in the present case to suggest it engaged in a genuine consideration of the effect of non-revocation on the applicant’s partner, Ms Agbede. Whilst it made mention of the impact on other persons, it failed to make any mention of the substantially more significant evidence concerning the impact on Ms Agbede and it made no findings as to that issue. The representations and evidence adduced raised this issue and it was a significant one in the applicant’s claim. Although the Tribunal made a cursory conclusion that there would be an impact upon family members, its reasons fell far short of indicating it had engaged in any meaningful way with the representation that Ms Agbede would suffer emotional loss and difficulties and the loss of the relationship with her partner. In the context of the Tribunal’s reasons, its discussion would appeared to relate to the impact upon persons other than Ms Agbede.

66    The analogy the Minister sought to draw with RZMW in this regard is inapt. In that case the Tribunal made an express finding, when considering the applicant’s ties to Australia, that there would be some impact on his family members were he returned to Liberia, which was corroborated by his family members. The Tribunal also referred elsewhere in its decision to evidence of his family members, his parental and familial responsibilities, and his relationship with his children and nieces and nephews. In contrast, the Tribunal in the present case did nothing more than identify in paragraph [132] that the applicant was in a relationship with Ms Agbede and that she was willing to live with the applicant if he is released from detention but would not move with him if he returned to Nigeria. It made no reference to the impact on her of the applicant being required to return there. For this reason, and contrary to the Minister’s submissions, it is also not possible to infer that the Tribunal gave genuine intellectual consideration to the issue of the impact on Ms Agbede. On the contrary, it can be inferred that it did not.

67    The result of the foregoing is that the Tribunal failed to properly engage with the clearly articulated ground advanced by the applicant that a reason for revoking the cancellation of his visa was the detrimental impact of that decision on Ms Agbede. That failure amounted to a failure to comply with the requirements of s 501CA(4) for the purposes of ascertaining whether the Tribunal reached the required state of satisfaction. This had the result that the Tribunal’s failure to exercise the power in that section was infected by a jurisdictional error.

Proposed Ground 4: Failure to consider certain representations on risk of reoffending

68    In relation to this proposed ground, the applicant submitted that he made clearly articulated and significant representations relating to the risk which he posed of reoffending, and that the Tribunal failed to take these into account. In particular, he submitted that the Tribunal failed to consider that:

(a)    he is “terrified” of the attendant consequences of losing his visa and he will not further endanger his permanent residency by reoffending; and

(b)    he was subject to a parole order that would not expire until 27 June 2021.

69    The Minister accepted that the Tribunal did not expressly engage with these representations, however contended that this, of itself, does not point to jurisdictional error.

70    At the hearing of the application, Mr Glenister for the applicant only relied upon the matter set out in paragraph (a) as being the matter which was not considered by the Tribunal. The Court was taken to several pieces of evidence adduced by the applicant which supported his contention that the risk of his reoffending was greatly diminished because he was aware that it could result in the cancellation of his visa and he did not want to return to Nigeria. At paragraph 39 of the applicant’s SSFIC, reference was made to the fact that in his statement the applicant had indicated that he had evolved from his previous experience such that he posed no future risk. At paragraphs 44 and 45 of that document, it was said:

42.     Even more so now that my permanent residency is jeopardised, I know that if I commit any further offences there will be no second chances for me. I want to remain in Australia and have too much to lose if I compromise my visa status again.

    …

45.     In summary, I deeply regret my past behaviour. I have had a long time to reflect on my behaviour, attitudes, values and my life in general.

71    Later in the SSFIC, it was stated:

He understands where he went wrong in terms of his decision-making and poor judgement, and he now knows what he stands to lose if he reoffends; he is genuinely terrified by that eventuality.

72    The effect of these statements was confirmed in the course of the Tribunal’s hearing when, during the submissions, the applicant’s legal representative reiterated that the applicant claimed to be a low risk of reoffending because he was aware that he would risk his visa if he committed any further offence. It was submitted that he did not want to go back to Nigeria and that he was not going to do anything to jeopardise that and risk his visa being cancelled.

73    It is well established that the Tribunal on review is required to have regard to substantial, clearly articulated representations advanced by the applicant in relation to a request for revocation: Minister for Home Affairs v Buadromo (2018) 267 FCR 320 at 331 – 332 [41]. Although these representation are, viewed as a whole, a mandatory relevant consideration, not every statement in the representations can be so described: Minister for Immigration and Border Protection v BHA17 (2018) 260 FCR 523 at 562 [139]; Goundar v Minister for Immigration and Border Protection (2016) 160 ALD 123 at 133 [56]. Indeed, generally speaking, the Tribunal is not required to refer to every piece of evidence or contention advanced by a claimant. As stated by the Full Court in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 (at 604 – 605 [46] – [47]):

46.    It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived… The Tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised “with an eye keenly attuned to error”. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.

47.    The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected.

74    Those observations are applicable in the present case. The relevant representation, properly characterised, was that the applicant presented a low risk of re-offending. The facts referred to above were presented along with a number of other facts as evidence corroborating that contention. However, here, the Tribunal undertook a thorough and detailed consideration of the issue of the applicant’s risk of reoffending. It considered the nature of the original offence, the statements by the applicant that he considered “romance fraud” a lower risk option, the applicant’s attempts at rehabilitation including several courses which were taken, the evidence that he had failed to take full responsibility for his actions and attempts to minimise his culpability, the inconsistencies and improbabilities in his evidence, his current debt situation, his lack of ability to explain the transactions in his bank account, the fact that the applicant had not truly engaged with his offending behaviour, the contents of a psychologist’s report as to the likelihood of the applicant reoffending, and the observations of the judge who sentenced the applicant for his offences. Whilst it is true that in the extensive discussion the Tribunal did not mention that the applicant would be motivated not to reoffend for fear of his visa being cancelled, the Tribunal’s analysis shows that it paid close attention to the evidence adduced before it on the general issue raised. In doing so it generally accepted that the applicant was strongly asserting that he would not reoffend, but the decisional path in its reasons shows that it was concerned about the numerous pieces of significant evidence which tended to negate that assertion. It cannot be concluded that the Tribunal’s omission to mention that a reason for why the applicant may not reoffend was the possibility that his visa would be cancelled indicated that it did not take it into account.

75    Further, even if one reached the conclusion that the Tribunal failed to take this piece of information into account, in the circumstances it was not so significant to the outcome that such a failure would have the consequence that the Tribunal did not perform its statutory task.

76    The application cannot succeed on this ground.

Materiality of the identified errors

77    The materiality of the errors made by the Tribunal should be considered cumulatively.

78    The errors identified in grounds 1 and 3 will be material if they operated to deprive the applicant of the “possibility of a successful outcome”: Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at 433 [3]; Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 at 134 – 135 [30]; Lu v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 141 FCR 346 at 360 [64]. Here, the Tribunal’s misunderstanding of para 14.2(1) was material in the sense that the Tribunal might have reached a different outcome if it had not misunderstood how the clause operated.

79    The Tribunal concluded at [138] that the applicant’s ties to Australia were a “neutral” consideration. If it had not incorrectly characterised the residence sub-consideration as adverse to the applicant, and if the Tribunal had properly considered the impact of non-revocation on Ms Agbede, the consideration as whole might have been characterised as favourable, which may have altered the Tribunal’s ultimate decision. The Tribunal concluded that two primary considerations weighed in favour of not revoking the cancellation of his visa, and one weighed against, while the other considerations weighed in the applicant’s favour “to a moderate extent”. It would be an error to take the view that these other considerations, bolstered by a finding that the applicant’s ties to Australia favoured revocation, were incapable of outweighing the primary considerations: cf Minister for Home Affairs v HSKJ (2018) 266 FCR 591 at 602 [35]; FCFY [66].

80    In FCFY, Thawley J found (at [66]) that it was, in principle, open to the Tribunal to conclude that the two primary considerations which were found to weigh against revocation were outweighed by the combination of:

(a)    the “primary consideration” of the best interests of minor children, which was found to weigh minimally in the applicant’s favour; and

(b)    the “other considerations” which favoured revocation, including the “strength, nature and duration of ties” and the “extent of impediments if removed”.

81    Similarly, here, it would have been open to the Tribunal to conclude that the combined effect of not giving negative weight to the residence sub-consideration in para 14.2(1)(a) and giving added weight to the family ties sub-consideration in para 14.2(1)(b) as a result of the impact on Ms Agbede of the applicant’s return to Nigeria was that it was satisfied that there was another reason why the cancellation decision should be revoked. It follows that the errors were material.

82    For these reasons, both grounds 1 and 3 are made out.

Conclusion

83    The application should be allowed with costs. A writ of certiorari in absolute form should issue to the Tribunal quashing its decision and a writ of mandamus should also issue requiring it to determine the application according to law.

84    The applicant should have his costs of this application.

Associate:    

Dated:    10 February 2021