Federal Court of Australia

Cai v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 90

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    Paragraphs 1 and 2 of the orders of the Federal Circuit Court made on 22 May 2020, by which the appellant’s application to that Court was dismissed with costs, be set aside, and in lieu thereof it be ordered that –

(a)    a writ of certiorari issue to the Administrative Appeals Tribunal quashing its decision dated 7 January 2019, by which the cancellation of the applicant’s visa was affirmed;

(b)    a writ of mandamus issue to the Tribunal requiring it to undertake its review according to law; and

(c)    the first respondent pay the applicant’s costs in the Federal Circuit Court.

3.    The first respondent pay the appellant’s costs in this Court.

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

REASONS FOR JUDGMENT

WHEELAHAN J:

Introduction

1    The appellant appeals a decision of the Federal Circuit Court of Australia made on 22 May 2020, which dismissed an application for judicial review of a decision of the Administrative Appeals Tribunal: Cai v Minister for Immigration & Anor [2020] FCCA 1225. The Tribunal had affirmed an earlier decision of a delegate of the Minister for Immigration to cancel the appellant’s visa under s 116(1)(e)(ii) of the Migration Act 1958 (Cth). For the following reasons, the appeal should be allowed with costs.

Background

2    The factual background to this appeal is not in dispute and may be summarised as follows.

3    The appellant is a 32 year old citizen of the People’s Republic of China. The appellant arrived in Australia in 2006, and married on 24 September 2013. On 16 April 2014, the appellant’s daughter was born. On 2 April 2015, the appellant was granted a Class UK Subclass 820 Provisional Partner visa with his then wife as sponsor. The appellant and his former wife separated on 19 March 2017. The appellant’s former wife and daughter remain resident in Australia.

4    On 9 May 2017, the appellant was served with a family violence intervention order issued by the Ringwood Magistrate’s Court in relation to an alleged incident that occurred between him and his former wife on 10 March 2017. The order stated that the affected family members were the appellant’s former wife and daughter. Amongst other prohibitions, the order prohibited the appellant from being within 200 metres of an address in Ringwood, where the appellant’s former wife and daughter lived. On 24 November 2017, the appellant was charged with various offences: intentionally causing serious injury; recklessly causing serious injury; intentionally causing injury; recklessly causing injury; unlawful assault; and contravention of an intervention order. These offences related to an alleged violent incident the previous day involving the appellant’s former wife and her father, to whom I shall refer as the grandfather. That alleged violent incident occurred in the presence of the appellant’s daughter. The five different charges of violence were laid in the alternative and related to severe burns suffered by the grandfather, for which he was hospitalised.

5    On 3 January 2018, the Department of Home Affairs sent the appellant a notice of intention to consider cancellation of his visa under s 116(1)(e)(ii) of the Migration Act. That section provides that “the Minister may cancel a visa if he or she is satisfied that the presence of its holder in Australia is or may be, or would or might be, a risk to the health or safety of an individual or individuals”. The notice referred to the family violence order issued against the appellant on 9 May 2017 and to the further charges laid against the appellant on 24 November 2017, and stated that it appeared that the appellant’s presence in Australia posed a risk or may pose a risk to the safety of his former wife, his daughter and the grandfather, and that therefore his visa was liable for cancellation consideration under s 116(1)(e)(ii) of the Act. The notice also included an invitation to the appellant to provide a response in writing. On 17 January 2018, the appellant’s representative provided submissions to the Department that stated that the appellant denied the allegations constituted by the criminal charges against him, and that the criminal proceeding was fixed for a contest mention hearing on 20 February 2018, and argued that any decision as to whether to cancel the appellant’s visa should be deferred until after the determination of the criminal charges against the appellant. The submissions stated that the appellant could not fully respond to the notice of intention to cancel his visa without compromising his right to silence in his ongoing criminal proceeding, and that he was on remand and therefore posed no immediate risk to the Australian community or his family.

6    On 30 January 2018, a delegate of the Minister cancelled the appellant’s visa. The Department issued to the appellant’s representative a record of the delegate’s decision, which was accompanied by reasons.

7    On 6 February 2018, the appellant applied to the Tribunal for review of the delegate’s decision to cancel his visa. On 7 November 2018, the appellant provided submissions to the Tribunal. The submissions noted that the appellant intended to plead not guilty to the charges against him, and that the trial was listed to commence on 25 February 2019. The appellant submitted that the Tribunal should not conduct its review until after the charges were determined following the criminal trial. The appellant also submitted that despite the incident on 23 November 2017, he was not a risk to the persons identified in the delegate’s cancellation decision, namely his former wife, his daughter and the grandfather. The submissions attached a letter of support from the appellant’s former wife and also listed as being attached a letter of support from the grandfather. However, the submissions erroneously attached two copies of the former wife’s letter, and did not attach the grandfather’s letter. That omitted letter was not otherwise put before the Tribunal to be considered in its review. It was adduced into evidence in the proceeding below in the Federal Circuit Court as an annexure to an affidavit of the appellant’s solicitor, who explained the omission of the letter from the submissions to the Tribunal as an oversight.

8    On 13 November 2018, the Tribunal conducted a hearing at which the appellant appeared with his representative. After the hearing and following an invitation by the Tribunal to the appellant to comment on certain information, on 20 December 2018, the appellant provided further submissions to the Tribunal. Those submissions stated, amongst other matters, that the appellant had the support of his former wife and the grandfather, “who have both provided evidence to the Tribunal of their wish for him to remain in Australia and have an ongoing relationship and role [in] raising his daughter.” On 8 January 2019, the Tribunal notified the appellant of its decision made the previous day to affirm the delegate’s decision to cancel the appellant’s visa. I will summarise below the Tribunal’s reasons for its decision.

9    After the Tribunal made its decision, on 5 March 2019, the appellant was found not guilty of the charges of intentionally causing serious injury and recklessly causing serious injury, and the charge of unlawful assault was withdrawn. The appellant pleaded guilty to the charge of contravening the intervention order, for which he was convicted and discharged. The evidence before the Federal Circuit Court below does not show the outcome of the remaining alternative charges of violence, namely intentionally causing injury or recklessly causing injury, and counsel for the parties were unable to explain that gap in the evidence at the hearing of this appeal.

The Tribunal’s decision

10    As I have referred to above, on 7 January 2019, the Tribunal determined to affirm the delegate’s decision to cancel the appellant’s visa. The Tribunal’s statement of reasons for its decision was divided into two parts.

11    First, the Tribunal considered whether the ground for cancellation in s 116(1)(e)(ii) of the Act was established. That is, whether the appellant’s presence in Australia “is or may be, or would or might be, a risk to the health or safety of” his former wife, his daughter and the grandfather.

12    The Tribunal referred to the family violence order issued against the appellant on 9 May 2017 and to the further charges laid against the appellant on 24 November 2017. The Tribunal accepted on the appellant’s evidence that those charges were to be determined at an upcoming criminal trial, following a contested committal hearing at which a magistrate had found that there was sufficient evidence for the appellant to be committed to stand trial. At [25] of its reasons, the Tribunal referred to and rejected the appellant’s submissions that the Tribunal should delay any decision until after the appellant’s criminal trial was concluded –

25.    In the representative’s written submissions the representative argued that by applying the principles espoused in Gong v MIBP [2016] FCCA 561 the tribunal cannot undertake an assessment of risk before the Magistrates’ Court makes a determination as to whether there is any direct evidence of sufficient probative weight that there is a reasonable basis for the police charges against the [appellant]. In the hearing the representative submitted the tribunal should delay any decision until after the County Court trial is concluded. I disagree; the tribunal would not fall into jurisdictional error if it does not wait for the County Court trial to conclude before making its findings. The [appellant] elected to have a contested committal hearing, and the magistrate heard the evidence of witnesses, and concluded there is sufficient evidence for the [appellant] to be committed to stand trial. I find the magistrate has found there is direct evidence of sufficient probative weight that there is a reasonable basis for the charges against the [appellant]. The tribunal can rely on this finding of the magistrate that there is a reasonable basis for the charges laid against the [appellant].

13    The Tribunal then referred to and assessed the evidence before it in relation to the possible risk that the appellant posed to his former wife, his daughter and the grandfather. The Tribunal was satisfied that the presence of the appellant in Australia “is or may be, or would or might be, a risk to the health or safety of” his former wife, his daughter and the grandfather.

14    Second, having found that the ground for cancellation was established, and thereby that the discretion to cancel the appellant’s visa was enlivened, the Tribunal considered whether to affirm the delegate’s decision to exercise that discretion.

15    The Tribunal noted that there were no matters specified in the Act or the Migration Regulations 1994 (Cth) that were required to be considered in the exercise of the discretion. The Tribunal then stated that it had regard to the circumstances of the case, including matters raised by the appellant and matters in the Department’s Policy Advice Manual, to inform its consideration of the discretion. The Tribunal made findings and attributed weight to the following factors –

(1)    The purpose of the appellant’s visa and the need for him to stay in Australia was his relationship with his daughter, which the Tribunal considered to be a significant consideration that weighed against cancelling the appellant’s visa.

(2)    The appellant had failed to comply with previous visa conditions resulting in the cancellation of his student visa, following which he remained in Australia unlawfully, but that had occurred some time ago and the Tribunal gave that matter neutral weight in its assessment.

(3)    The circumstances in which the ground for the cancellation of the appellant’s visa arose were that the appellant had been charged with offences in relation to the alleged violent incident on 23 November 2017. The Tribunal was satisfied that those circumstances were not beyond the appellant’s control, and the Tribunal gave those circumstances significant weight in favour of cancelling the appellant’s visa.

(4)    The Tribunal stated that the degree of hardship to the appellant and his family was a particularly difficult consideration to assess in the circumstances of the case. The Tribunal stated that the appellant’s fear that he would not see his daughter again, and his evidence that he wanted to make amends and to be involved in her life as she grew up, was a significant factor. However, the Tribunal stated that that had to be weighed against the evidence that the appellant had an intervention order made against him to protect his former wife and daughter, and the evidence that his former wife had stated that their daughter was scared of him. The Tribunal stated that the weight given to the degree of hardship to the appellant and his family was lessened because of the possibility of risk to the appellant’s daughter and other family members if he were to remain in Australia. On this factor, the Tribunal concluded that overall the degree of hardship to the appellant and his family caused by his separation from them was a consideration that weighed against cancelling his visa.

(5)    There was no evidence that there would be any other visas cancelled or affected if the appellant’s visa was cancelled, and the Tribunal therefore gave that factor neutral weight in its assessment.

(6)    The legal consequences for the appellant if his visa was cancelled were possible immigration detention pending any processing, and limitations on him making any future visa applications, to which the Tribunal gave some weight against cancelling the appellant’s visa.

(7)    The Tribunal also considered Australia’s international obligations. The Tribunal rejected the appellant’s submission that pursuant to Australia’s obligations under the International Covenant on Civil and Political Rights and to uphold the right to be presumed innocent until proven guilty, the Tribunal should not proceed to finalise its review until after the criminal charges were determined. The Tribunal stated that it was not making findings of fact on the charges, or considering a punishment for the charges as suggested by the appellant’s representative, but rather that it was assessing the possible future risk posed by the appellant to his former wife, his daughter and the grandfather. The Tribunal also considered Australia’s obligations under the Convention on the Rights of the Child. In that respect, the Tribunal stated that it was not clear on the evidence that it was in the best interests of the appellant’s daughter for her to have contact and involvement with the appellant in the future.

16    Finally, under the heading “Relevant matters”, the Tribunal concluded its assessment of whether to affirm the delegate’s decision to exercise the discretion to cancel the appellant’s visa, as follows –

54.    The most significant feature of this review is the potential separation of the [appellant] from his daughter in the future. I have given careful consideration to the evidence of the circumstances discussed above, and balanced and weighed the matters before me. There is the possibility of potential harm to the family members if the [appellant] remains in Australia.

55.    Essentially the most significant factors are the circumstances in which the grounds for the cancellation arose. These factors outweigh the potential hardship to the [appellant] in being separated from his daughter, if he has to leave Australia. These factors also outweigh the potential hardship to the [appellant]’s daughter, by being separated from her father if he is living in another country.

56.    I have considered all the circumstances and evidence before me. I have carefully balanced the evidence and assessed the circumstances of the case. Considering the circumstances as a whole, the tribunal concludes that the visa should be cancelled.

The proceeding in the Federal Circuit Court and the appeal to this Court

17    The appellant brought a proceeding for judicial review of the Tribunal’s decision in the Federal Circuit Court. By an amended application filed on 14 February 2020, the appellant relied upon seven grounds of review. On 22 May 2020, the primary judge rejected each of those grounds, and dismissed the application. The appellant re-agitates some, but not all, of those grounds in his appeal to this Court. Given that only some of the grounds have been re-agitated, and given that this is an appeal by way of rehearing in which this Court suffers no relevant disadvantage to the Court below, I shall not record all of the primary judge’s reasons in detail. I shall refer to the primary judge’s reasons as necessary in considering the appellant’s grounds of appeal.

The appellant’s grounds of appeal to this Court

18    By an amended notice of appeal filed on 20 November 2020, the appellant relies upon five grounds of appeal –

Grounds of appeal

1.    The Federal Circuit Court erred in holding that the second respondent did not deny the appellant procedural fairness and/or constructively fail to exercise jurisdiction by failing to consider the support of the appellant’s father in law to the application.

Particulars

a.    The appellant’s visa was cancelled based on criminal charges primarily involving allegations of violence against his father in law.

b.    The appellant submitted that his father in law was supportive of his application to have the decision to cancel his visa set aside.

c.    The support of the appellant’s father in law was significant and critical as he was the alleged victim; and grandfather of the appellant’s daughter.

d.    The second respondent failed to refer to and therefore did not consider the father in law’s support for the appellant.

e.    The Federal Circuit Court erred in holding at [59] - [60] of its reasons that the second respondent’s consideration of the applicant’s ex-spouse[’]s support indicated it was aware of the applicant’s father in law’s support.

2.    The Federal Circuit Court erred in holding that the second respondent did not fall into jurisdictional error by failing to make an inquiry regarding the appellant’s father in law’s letter of support.

Particulars

a.    The appellant’s legal submission dated 7 November 2018 purported to enclose two letters of support: one from the appellant’s ex-wife; and one from his father in law.

b.    The submission attached two copies of the ex-wife’s letter.

c.    The second respondent should have made inquiries of the appellant’s representative to request a copy of the father in law’s letter.

d.    The failure to make the inquiry constituted a jurisdictional error because:

i.    it was unreasonable to make the decision prior to making the inquiry; and/or

ii.    the appellant was denied a real and meaningful hearing pursuant to s 360 of the Act due to his assumption that the letter of support would be considered.

e.    The Federal Circuit Court erred in holding at [61] that the failure to make the inquiry was not material to the outcome. Had the second respondent cited the letter it may have given more weight to the appellant’s father in law’s support.

3.    The Federal Circuit Court erred in finding that the second respondent had not denied the appellant procedural fairness by, in exercising the discretion to cancel the visa, not considering the appellant’s submissions that his risk of re-offending was low.

Particulars

a.    The appellant made submissions that he was not a risk to his family in the future because: he and his ex-wife had divorced; they had a parenting arrangement; and he had no prior criminal record.

b.    The second respondent found there was a mere possibility of risk sufficient to enliven the power to cancel the visa pursuant to s 116(1)(e).

c.    The second respondent, in its reasons for exercising its discretion to cancel the visa made no findings in relation to the appellant’s submissions that the risk was low.

d.    The second respondent denied the appellant procedural fairness by not considering his clearly articulated submissions regarding the risk he posed in exercising the discretion.

e.    The Federal Circuit Court erred in holding in relation to this ground below (ground 5) at [68] of its reasons that the second respondent’s consideration of the submissions in relation to s 116(1)(e) demonstrated that they had been considered in the exercise of discretion because:

i.    the threshold to satisfy s 116(1)(e) is very low, a “mere possibility” of risk;

ii.    the second respondent could have considered the appellant’s submissions to assess if the risk was low for the purpose of exercising its discretion; and

iii.    therefore, the potential analysis of risk in exercising discretion is wider in scope than that necessary to merely determine if s 116(1)(e) is enlivened.

f.    The Federal Circuit Court erred in holding at [68] of its reasons that the second respondent’s reference to the appellant’s submissions regarding risk in the exercise of discretion at [47] of its reasons demonstrated they had been considered, as the second respondent:

i.    made no findings regarding whether the parenting plan and divorce would reduce the risk; and

ii.    merely found that the circumstances that led to the cancellation were within the appellant’s control.

4.    The Federal Circuit Court erred in holding that the second respondent did not fall into jurisdictional error by asking the wrong question in determining whether or not to adjourn the review or delay its decision until after the finalisation of the appellant’s criminal charges.

Particulars

a.    The second respondent had a discretion under s 363(1)(b) of the Act to adjourn the review or not to finalise the review until after the appellant’s criminal trial concluded.

b.    The second respondent determined at [25] of its reasons that it would not fall into jurisdictional error by finalising the review before the criminal trial.

c.    The second respondent at [25] asked itself the wrong question: whether it could make a lawful decision prior to the criminal trial.

d.    The correct question was: whether the second respondent should exercise its discretion to delay the decision until after the criminal trial.

e.    The second respondent constructively failed to consider exercising its discretion under s 363(1)(b).

f.    The second respondent’s failure to exercise its discretion to adjourn was material to the outcome of the tribunal’s exercise of discretion to cancel the visa, as the appellant was found not guilty of the most serious criminal charges.

g.    The Federal Circuit Court erred in holding at [69] – [71] that the second respondent had not failed to appreciate the difference between whether a failure to exercise discretion to adjourn would be lawful, as opposed to whether it was preferable not to exercise the discretion to adjourn.

5.    Alternatively to ground 4, the Federal Circuit Court erred in holding that the second respondent’s refusal to adjourn the review or delay the decision until after the appellant’s criminal trial was not legally unreasonable.

Particular

a.    The failure to adjourn the review was unreasonable as it lacked an intelligible basis given that:

i.    the appellant was on remand and posed no immediate risk to the community;

ii.    the criminal trial was listed for 25 February 2019;

iii.    the outcome of the criminal trial could affect the second respondent’s consideration of the cancellation;

iv.    the appellant may have been able to comment on the criminal charges to the tribunal following the criminal trial without compromising his right to silence;

v.    the appellant could not have his visa reinstated once cancelled even if found not guilty of the criminal charges; and

vi.    the second respondent did not identify any reason for determining the review prior to the criminal trial.

The parties’ agreement about the operation of s 116(1)(e)(ii)

19    Before turning to consider those grounds of appeal, I record that there was no dispute between the parties that the Tribunal’s two-step approach to the application of s 116(1)(e)(ii) of the Act was correct. That two-step approach was recently endorsed by Banks-Smith J in Leota v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1120. At [13]-[18], Banks-Smith J considered the context and legislative history of s 116(1)(e) and outlined the two-step approach to the application of that provision.

20    First, the repository of power, in this case the Tribunal, must reach a state of satisfaction that the presence of the visa holder in Australia “is or may be, or would or might be, a risk to: (i) the health, safety or good order of the Australian community or a segment of the Australian community; or (ii) the health or safety of an individual or individuals”. In the decision under review, the Tribunal applied sub-paragraph (ii) and found that the appellant is or may be, or would or might be, a risk to his former wife, his daughter, and the grandfather. Section 116(1)(e) in its current form was introduced by the Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth). Prior to the amendment, the provision stated that the Minister may cancel a visa if he or she is satisfied that the presence of its holder in Australia “is, or would be, a risk”. I respectfully agree with Banks-Smith J’s conclusion that the introduction by the amending Act of the words “or may be” and “or might be” lowered the threshold for satisfaction as to risk. The repository’s state of satisfaction as to risk is a subjective jurisdictional fact. Therefore, the grounds on which the existence of the requisite subjective state of satisfaction may be reviewed are limited, as was recently explained by the Full Court in Ali v Minister for Home Affairs [2020] FCAFC 109; 280 ALR 393 at [42] (Collier, Reeves and Derrington JJ). See also the cases cited therein, including Avon Downs Pty Ltd v Federal Commissioner of Taxation [1949] HCA 26; 78 CLR 353 at 360 (Dixon J) and Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611.

21    Second, the repository of power, having reached the state of satisfaction as to risk required in the first step, must decide whether to exercise the discretion to cancel the visa. Section 116(1) states that “the Minister may cancel a visa” if satisfied of any of the grounds enumerated. As stated by the Tribunal in its decision, neither the Act nor the Regulations prescribe any matters that are required to be considered in the exercise of that discretion. By his written submissions in this appeal, the Minister pointed to two possible caveats. First, that the Act may impliedly require that the decision-maker have regard to the circumstances in which the ground for cancellation arose, which the Tribunal did in the decision under review (see [15(3)] above). And second, that if the visa holder makes a submission as to why the decision-maker should not exercise the discretion, then the decision-maker’s failure to have regard to that submission may result in jurisdictional error. I will return to this second caveat in addressing the appellant’s first ground of appeal, below.

22    On this appeal, the appellant did not seek to impugn the Tribunal’s reasoning on the first step. The appellant accepted that the Tribunal lawfully found that he is or may be, or would or might be, a risk to his former wife, his daughter, and the grandfather. The appellant’s grounds of appeal were all directed to alleged errors in the Tribunal’s reasoning on the second step, by which it decided to affirm the delegate’s decision to exercise the discretion to cancel his visa.

Consideration

23    The parties by their submissions grouped the grounds of appeal, and I shall consider the grounds in those groups.

Grounds 1 and 2 – the support of the grandfather

24    These grounds of appeal address the Tribunal’s consideration of the grandfather’s support of the appellant’s application for the Tribunal to set aside the delegate’s decision to cancel his visa. By ground 1, the appellant argued that the Tribunal erred by failing to consider the grandfather’s support of his application. That ground was limited to the Tribunal’s failure to consider the grandfather’s support as expressed on the material that was before the Tribunal, although as I shall explain it may also extend to consideration of the terms of the grandfather’s omitted letter itself at the materiality step of the assessment. By ground 2, the appellant argued that the Tribunal erred by failing to make an obvious and easy inquiry to obtain a copy of the grandfather’s letter of support, which had been referred to in the submissions to the Tribunal, but which the appellant’s representative had by inadvertent error failed to attach.

Ground 1 – failure to consider the grandfather’s support

25    Before the primary judge, the appellant submitted that grandfather’s support of his application was critical to the Tribunal’s review, but the Tribunal’s reasons made no reference to that support. The appellant submitted that the Tribunal’s failure to consider the grandfather’s support constituted a denial of procedural fairness or a failure to consider material critical to the review. The appellant submitted that the inference that the Tribunal did not consider the grandfather’s support was supported by the fact that the Tribunal did not note or inquire about the failure to attach the grandfather’s letter, which had been referred to but inadvertently not attached to the appellant’s representative’s submissions to the Tribunal, and that the error was jurisdictional due to the centrality of that support to the issues in the review. On the other hand, the Minister submitted that on the material before the Tribunal, the grandfather’s support was limited to a reference to the omitted letter detailing unspecified information about the appellant’s upbringing, and a reference to the grandfather’s desire for the appellant to have a role in his daughter’s upbringing and a meaningful relationship with her. The Minister submitted that as to the appellant’s upbringing, it was impossible to see how unspecified information about that could be characterised as central to the Tribunal’s exercise of the discretion. As to the grandfather’s desire for the appellant to have a relationship with his daughter, the Minister submitted that was an issue that was clearly considered by the Tribunal. Alternatively, and assuming that the Tribunal did not have regard to the unspecified information from the grandfather about the appellant’s upbringing or to the suggestion that the grandfather wished for the appellant to have a relationship with his daughter, the Minister submitted that there was no realistic possibility that the decision would have been different if the Tribunal had considered those matters, so any error was immaterial.

26    The primary judge at [57]-[60] of his reasons accepted the Minister’s submissions. The primary judge held that it was not apparent that the information about the grandfather’s support was critical to the exercise of the Tribunal’s discretion, that the Tribunal did consider the issue of the appellant’s relationship with his daughter, and that there was no realistic possibility that the Tribunal’s decision would have been any different had the Tribunal sighted the letter from the grandfather. As to this last point, while I understand this ground of review below, and the corresponding ground of appeal to this Court, as being confined to the Tribunal’s alleged failure to consider the grandfather’s support as expressed on the material before the Tribunal, as I shall explain, it may also extend to consideration of the terms of the grandfather’s omitted letter itself at the materiality step of the assessment.

27    On appeal, the appellant submitted that the primary judge erred in not considering the significance and persuasive effect of the grandfather’s support. The appellant submitted that the grandfather’s support was inherently significant as the victim of an alleged assault would not ordinarily be expected to offer support to the alleged perpetrator, and the grandfather’s willingness to write the letter went to the appellant’s capacity to contribute positively to his family. The appellant also submitted that even though the Tribunal had considered the issues raised by the grandfather’s support, the fact of that support may have affected the weight given to those issues. More specifically, the appellant submitted that the grandfather’s support could have weighed against the Tribunal’s exercise of the discretion to cancel his visa by affecting the Tribunal’s assessment of the circumstances in which the ground for cancellation arose (see [15(3)] above), the hardship to his family if he was removed (see [15(4)] above), and also that the grandfather’s views were relevant to whether the appellant remaining in Australia was in his daughter’s interests (see [15(7)] above). The appellant submitted that the Tribunal made no reference to the grandfather’s support, or the omission of the grandfather’s letter from his representative’s submissions to the Tribunal, and therefore that it could be inferred that the Tribunal did not consider that support. The appellant submitted that the Tribunal’s failure to consider the grandfather’s support was material to the Tribunal’s exercise of the discretion to cancel his visa. The appellant submitted that the fact that the issues raised by the grandfather’s support overlapped with those raised by his former wife did not render that support immaterial, that the grandfather’s support could have reinforced his former wife’s support, and that there was a distinction between his former wife supporting him and both his former wife and the grandfather expressing a common view that it was in the appellant’s daughter’s interests that he remained in Australia. The appellant submitted that if the Tribunal knew of the grandfather’s support, it could – in the relevant sense of realistic possibility – have given more weight to the considerations raised by the grandfather, including the interests of the appellant’s daughter and hardship to his family, and that could have altered the outcome.

28    By his submissions, the Minister again emphasised the limited nature of the grandfather’s support as expressed on the material before the Tribunal, being only a reference to the omitted letter “detailing” unspecified information about the appellant’s upbringing, and a reference to the grandfather’s desire for the appellant to have a role in his daughter’s upbringing and a meaningful relationship with her. The Minister submitted that the fact that the Tribunal did not specifically refer to this aspect of the appellant’s representative’s submissions did not entail that the Tribunal did not consider it, let alone that any such failure was material. The Minister repeated his submissions about the two identified matters. As to the appellant’s upbringing, the Minister submitted that it was impossible to see how unspecified information about that could be characterised as central to the Tribunal’s exercise of the discretion, and that there was nothing in the appellant’s representative’s submission to the Tribunal that provided any explanation of the relevance or significance of that unspecified information. As to the grandfather’s desire for the appellant to have a relationship with his daughter, the Minister submitted that was an issue that was clearly considered by the Tribunal, and it was also a matter that was addressed in the appellant’s former wife’s letter, which the Tribunal had clearly considered. In those circumstances, the Minister submitted that the Court should not infer that the Tribunal failed to consider those particular nuances of the appellant’s representative’s submissions. The Minister also repeated his alternative materiality submission, that assuming that the Tribunal did not have regard to those aspects of the appellant’s representative’s submissions, there was in any event no realistic possibility that if it had done so its decision would have been different. The Minister submitted that this conclusion should be drawn in light of the objectively marginal significance of the submissions said not to have been considered, in light of the reasons which the Tribunal did give.

29    I consider that these grounds of appeal give rise to three issues. First, was the Tribunal required to consider the appellant’s representative’s submissions about the grandfather’s support? Second, does the inference arise that the Tribunal failed to consider those submissions? And third, if the Tribunal was so required, and the inference does arise, was the Tribunal’s error material – that is, if the Tribunal had considered those submissions, was there a realistic possibility that it could have come to a different result? If so, then the Tribunal fell into jurisdictional error.

30    In relation to the first issue, the appellant submitted by reference to the reasons for judgment of Robertson J in Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; 212 FCR 99 at [112]-[114] that the Tribunal may fall into jurisdictional error if it fails to consider material that is cogent, and critical in the context of the review. For his part, the Minister submitted by reference to XFKR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 323 at [101] that a decision-maker does not fall into jurisdictional error by failing to consider every individual submission advanced on behalf of an applicant, still less every nuance or variation of a submission. Those statements must be considered in light of the legislative and factual context in which they were made. The present inquiry must be undertaken in its context, being an inquiry into the lawfulness of the Tribunal’s treatment of the appellant’s representative’s submissions to it, which were directed to its review of whether to affirm the delegate’s decision to cancel the appellant’s visa pursuant to s 116(1)(e)(ii) of the Act. In that context, I accept that the appellant’s representative’s submissions to the Tribunal, viewed as a whole, were a mandatory relevant consideration, however not every statement in those submissions can be so described: see, in the context of review of decisions under other provisions of the Act, Viane v Minister for Immigration and Border Protection [2018] FCAFC 116; 263 FCR 531 at [69]-[72] (Colvin J, with whom Reeves J at [3] generally agreed); Minister for Home Affairs v Omar [2019] FCAFC 188; 272 FCR 589 at [34(e)]. The fundamental question must be the importance of the material to the exercise of the Tribunal’s function, and that will depend on the nature of the material and the circumstances of the case: SZRKT at [111]-[112] (Robertson J).

31    As emphasised by the Minister below and on this appeal, the material that was before the Tribunal in relation to the grandfather’s support was limited. The Minister pointed to a reference to the grandfather’s omitted letter “detailing” unspecified information about the appellant’s upbringing, and a reference to the grandfather’s desire for the appellant to have a role in his daughter’s upbringing and a meaningful relationship with her. Those representations were drawn from the appellant’s representative’s submissions to the Tribunal dated 7 November 2018, which inadvertently omitted to attach the grandfather’s letter. In addition, and to the extent that it was not already necessarily conveyed, I find that the appellant’s representative’s post-hearing submissions to the Tribunal dated 20 December 2018 included the more general representation that the appellant’s former wife and the grandfather wished for the appellant’s visa not to be cancelled so that he would not be removed from Australia.

32    In the circumstances of the case, I consider that the Tribunal was required to consider the grandfather’s support of the appellant’s application for the Tribunal to set aside the delegate’s decision to cancel his visa. I accept the Minister’s submission that the Tribunal was not required to consider the reference in the appellant’s representative’s submissions to the grandfather’s omitted letter “detailing” unspecified information about the appellant’s upbringing. The information said to be detailed about the appellant’s upbringing was unspecified, so it went nowhere, and in any event the issue of the appellant’s upbringing was, at most, of marginal relevance to the Tribunal’s review. However, I do not accept the Minister’s submissions that seek to dismiss the independent relevance of the grandfather’s desire for the appellant to have a role in his daughter’s upbringing and a meaningful relationship with her, or the more general representation that the grandfather wished for the appellant’s visa not to be cancelled so that he would not be removed from Australia. I consider that those matters were sufficiently central to the second step of the Tribunal’s review, namely whether to exercise the discretion to cancel the appellant’s visa, that the Tribunal was required to consider them. Contrary to the Minister’s submissions, it was insufficient for the Tribunal to consider only the appellant’s former wife’s letter of support, or to consider only the issues raised by the grandfather’s support including the best interests of the appellant’s daughter and hardship to the appellant’s family, without considering the fact of the grandfather’s support itself. I will return to assess in more detail the potential relevance of the fact of the grandfather’s support to the Tribunal’s assessment of whether to exercise the discretion in considering materiality, below.

33    In relation to the second issue, whether a decision-maker has considered a submission will “frequently be a matter of impression reached in light of all of the circumstances of the case”: Navoto v Minister for Home Affairs [2019] FCAFC 135 at [89] (Middleton, Moshinsky and Anderson JJ). The question whether the Tribunal’s failure to refer to some matter in its reasons gives rise to the inference that the Tribunal failed to consider that matter must be assessed in context with regard to the circumstances of the case and the Tribunal’s reasons as a whole: WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; 236 FCR 593 at [47] (French, Sackville and Hely JJ). The relevant context includes the obligation in s 368 of the Act for the Tribunal to record in its written reasons, amongst other matters, the reasons for its decision, its findings on any material questions of fact, and the evidence on which those findings were based.

34    In its reasons for affirming the delegate’s decision to cancel the appellant’s visa, the Tribunal made no reference to the grandfather’s support of his application in a general sense, and made no reference to the more specific matters of the grandfather’s omitted letter “detailing” unspecified information about the appellant’s upbringing, or his desire for the appellant to have a role in his daughter’s upbringing and a meaningful relationship with her. Further, the Tribunal’s reasons did not refer to the fact that the grandfather’s letter, which had been referred to in the appellant’s representative’s submissions and which had been included as an item in an index of the supporting documents attached to those submissions, had in fact not been attached. Upon reviewing those submissions and the attachments, it should have been obvious that the letter had been omitted, and that a second copy of the appellant’s former wife’s letter had been inadvertently included in its place. Further, the appellant’s representative’s later post-hearing submissions dated 20 December 2018 referred to the fact of the grandfather having “provided evidence to the Tribunal” in support of the appellant (see [7] above). Having regard to the relevance of the grandfather’s support, and to the Tribunal’s failure to refer to that support or to refer to the appellant’s representative’s error in failing to attach the grandfather’s letter, I infer that the Tribunal failed to consider the grandfather’s support. That failure at least constituted a failure to accord the appellant procedural fairness, or alternatively constituted a constructive failure to exercise the Tribunal’s review function: Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; 212 FCR 99 at [113] (Robertson J), citing NABE v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 263; 144 FCR 1 at [63] (Black CJ, French and Selway JJ), which in turn cited Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 197 ALR 389.

35    Given that I have found that the Tribunal was required to consider the grandfather’s support, and that the inference arises that it failed to do so, the third issue is whether that failure by the Tribunal was material, so as to amount to a jurisdictional error. The question of materiality is an ordinary question of fact in respect of which the appellant bore the onus of proof below in the Federal Circuit Court, and does so again on appeal to this Court: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421 at [46] (Bell, Gageler and Keane JJ). In assessing materiality, much will turn on the facts of the case, the decision-making process, and the kind of error alleged: Nguyen v Minister for Home Affairs [2019] FCAFC 128; 270 FCR 555 at [54] (Jagot, Robertson and Farrell JJ). See also, PQSM v Minister for Home Affairs [2020] FCAFC 125; 382 ALR 195 at [145]-[155] (Banks-Smith and Jackson JJ), on which the Minister relied. In this appeal, the question is whether there was a realistic possibility that the Tribunal’s decision could have been different if it had considered the grandfather’s support: SZMTA at [48] (Bell, Gageler and Keane JJ). The primary judge addressed the issue of materiality, stating at [60] of his Honour’s reasons that “I accept the first respondent’s submissions that there is no realistic possibility that the decision would be any different had the Tribunal sighted the letter from the father-in-law.” As I have referred to already, while I understand that the error alleged in the corresponding ground of review below and this ground of appeal was confined to the Tribunal’s alleged failure to consider the grandfather’s support as expressed on the material before the Tribunal, the Court’s perspective may also extend to the Tribunal considering the terms of the grandfather’s omitted letter itself at the materiality stage of the assessment. The parties accepted that extension was arguable on the basis that it could be said that if the Tribunal had not erred by failing to consider the grandfather’s support as expressed on the material that was before it, then there was a realistic possibility that the Tribunal could have called for and obtained a copy of the omitted letter. In turn, there might then have been a realistic possibility that if the Tribunal had considered the grandfather’s support as expressed on the material before it as well as the terms of the grandfather’s omitted letter itself, the Tribunal could have reached a different outcome.

36    Beginning with an assessment limited to the possible effect of the Tribunal having considered the grandfather’s support as expressed on the material before it, I find that there was a realistic possibility that if the Tribunal had considered that material, it could have decided not to exercise the discretion to cancel the appellant’s visa. For reasons already given, I do not consider that the Tribunal’s failure to consider the reference in the appellant’s representative’s submissions to the grandfather’s omitted letter “detailing” unspecified information about the appellant’s upbringing was material. That leaves the Tribunal’s failure to consider the grandfather’s desire for the appellant to have a role in his daughter’s upbringing and a meaningful relationship with her, and more generally the grandfather’s wish for the appellant’s visa not to be cancelled so that he would not be removed from Australia. While I acknowledge the limited nature of the grandfather’s support on the material before the Tribunal, I nonetheless prefer the appellant’s submissions about the materiality of those matters. I accept that the fact of overlap with issues raised by the appellant’s former wife did not render the grandfather’s support immaterial, but rather that the grandfather’s support could have reinforced the appellant’s former wife’s support, and that there was a distinction between his former wife supporting him and both his former wife and the grandfather expressing a common view that they wished for him to remain in Australia, and that remaining in Australia was in his daughter’s interests. In undertaking the second step of its review, the Tribunal engaged in an evaluative exercise that involved it attributing weight to certain factors for and against exercising the discretion to cancel the appellant’s visa.

37    As I have already mentioned, the appellant pointed to three of those factors, to which he said the grandfather’s support was relevant. First, the appellant pointed to the circumstances in which the ground for cancellation arose. I do not consider that there was a realistic possibility that the grandfather’s support as expressed on the material before the Tribunal could have affected the Tribunal’s assessment of that factor. While there is some superficial attraction to the appellant’s submission that the grandfather’s support was inherently significant, as the victim of an alleged assault would not ordinarily be expected to offer support to the alleged perpetrator, I do not consider that there is a realistic possibility that the limited nature of that support could have dissuaded the Tribunal from placing significant weight on this factor in favour of cancelling the visa. Fundamentally, the Tribunal’s assessment of this factor was focussed on the appellant’s alleged prior conduct, and the expressions of the grandfather’s desire for the appellant to remain in Australia and be involved in his daughter’s life did not detract from that conduct. Second and third, the appellant pointed to the factors of the overall hardship to his family if he was removed from Australia, and whether remaining in Australia was in his daughter’s interests. I consider that there was a realistic possibility that the Tribunal’s assessment of these factors could have been affected by considering the grandfather’s view that it was in the appellant’s daughter’s interests that the appellant remain in Australia, and consequently that it would cause her hardship if he was removed from Australia. I consider that the views of a grandfather about what was in his granddaughter’s interests were capable of being regarded as informed and carefully considered, and therefore that in this case, the grandfather’s view may have been persuasive, if the Tribunal had considered it. That is especially true in circumstances where the evidence before the Tribunal suggested that the grandfather lived with the appellant’s former wife and daughter, which supports the view that he was well acquainted with the relevant circumstances and it was open to think that he was in a position to provide some material perspective on what was in the appellant’s daughter’s interests. Further, I consider that there was a realistic possibility that the effect of the Tribunal considering the grandfather’s view on those factors may have tipped the Tribunal’s overall assessment, such that it may have decided not to exercise the discretion to cancel the appellant’s visa. The Tribunal stated that it was not clear on the evidence that it was in the best interests of the appellant’s daughter for her to have contact and involvement with him in the future. While the Tribunal made that comment in the context of considering the appellant’s submissions in relation to Australia’s international obligations under the Convention on the Rights of the Child, a fair reading of the Tribunal’s reasons shows that the difficulty that it faced in identifying what was in the appellant’s daughter’s interests was a central issue to its consideration of the discretion more broadly. In the concluding paragraphs of its decision, extracted at [16] above, the Tribunal stated that the “most significant feature of this review is the potential separation of the [appellant] from his daughter in the future”, and that the circumstances in which the ground for cancellation arose outweighed “the potential hardship to the [appellant]’s daughter, by being separated from her father if he is living in another country.” The grandfather’s view that it was in his granddaughter’s interests that the appellant remain in Australia was relevant to that most significant feature, and the key issue whether there would be “potential”, or actual, hardship to the appellant’s daughter if the appellant’s visa was cancelled.

38    For those reasons, I find that if the Tribunal had considered the grandfather’s support, even in the limited way in which it was expressed on the material before the Tribunal, there was a realistic possibility that the Tribunal could have reached a different outcome. Therefore, I consider that the Tribunal fell into jurisdictional error by failing to accord procedural fairness to the appellant, or by failing constructively to exercise its review function, by not considering the grandfather’s support.

39    For completeness, I have also considered the extended materiality assessment that arises on the posited further past hypothetical that the Tribunal, after having considered the grandfather’s support as expressed on the material before it, would have realised that the grandfather’s letter of support had been omitted, and might then have called for and obtained a copy of the letter, and considered its terms. As I have already mentioned, I consider that the fact that the appellant’s representative’s submissions to the Tribunal attached a second copy of the appellant’s former wife’s letter, in place of the omitted grandfather’s letter, was an obvious error. A diligent Tribunal would have identified it. If the Tribunal had considered the appellant’s representative’s submissions about the grandfather’s support, which referred to the grandfather’s letter as being attached, then there was a realistic possibility that it might have called for and obtained a copy of the omitted letter, and considered its terms. The question then is what effect that could have had on the Tribunal’s review. The terms of the letter did not significantly advance the expressions of the grandfather’s support contained in the statements in the appellant’s representative’s submissions that were already before the Tribunal. In the letter, the grandfather stated that as the victim of the appellant’s “negligent act”, he should “have been the one who could not forgive” the appellant, but that “while hating him for his acts, I am also very sympathetic to” him. The grandfather also stated in respect of the appellant’s daughter that “a little girl under 4 years old has to bear the fault of her father and suffer the loss of her father’s love in her growth. Although I am very disappointed with the behaviour of [the appellant], I did not want to see any bad impact on [the appellant’s daughter] because of this incident.” I consider that those statements were conveyed, perhaps somewhat generously, in the references in the appellant’s representative’s submissions to the grandfather’s desire for the appellant to remain in Australia and to be involved in his daughter’s life. In the context of arguing ground 2 of this appeal, the appellant suggested that if the Tribunal had considered the letter itself, that could have been significant because the Tribunal may otherwise have declined to give weight to the expressions of the grandfather’s support contained in the appellant’s representative’s submissions because those references were not supported by a signed letter. I have found that the Tribunal simply failed to consider the grandfather’s support as expressed on the material before it. However, I do accept that there was a realistic possibility that the Tribunal could have placed more weight on the grandfather’s support if it had reviewed the letter for itself. Overall, given that I have found that the appellant has established the materiality of the Tribunal’s failure to consider the grandfather’s support as expressed on the material before it alone, it is not necessary that I decide this extended materiality assessment on the further past hypothetical. My view is that if the Tribunal had gone on to review the terms of the grandfather’s letter itself, which was certainly a realistically possible course of events, then that would reinforce the realistic possibility that the Tribunal could have reached a different outcome by deciding not to exercise the discretion to cancel the appellant’s visa.

40    Given that I have allowed this first ground of appeal, I shall make orders, in place of those made by the Federal Circuit Court, setting aside the Tribunal’s decision and directing the Tribunal to conduct its review function according to law. In the circumstances, I shall address ground 2, which is related to ground 1, in less detail, and then I shall address the remaining grounds of appeal in a relatively conclusory fashion.

Ground 2 – failure to make an inquiry

41    Before the primary judge and on this appeal, the appellant submitted that the Tribunal fell into jurisdictional error by failing to ask for a copy of the grandfather’s letter. The appellant submitted that a Tribunal may fall into jurisdictional error if it proceeds to make a decision without making an obvious and easy inquiry into a critical fact. The appellant submitted that the grandfather’s support was critical, for the reasons given in his submissions under ground 1, and that therefore the content of the omitted letter was also a critical fact. The appellant also submitted that the inquiry that the Tribunal should have undertaken was obvious and easy – to ask the appellant’s representative for a copy of the omitted letter. The appellant submitted that the error was material because if the Tribunal had cited the letter, it may have given more weight to the grandfather’s support, and that may have altered the outcome of its exercise of the discretion.

42    Before the primary judge and on this appeal, the Minister submitted that the circumstances in which a Tribunal’s failure to inquire will give rise to a jurisdictional error are rare and exceptional, and did not arise in this case. The Minister submitted that the grandfather’s letter could not be regarded as “critical”. The Minister submitted that having regard to what was said about the grandfather’s support in the appellant’s representative’s submissions, there was little basis to consider that the letter would add anything of particular importance or that it would likely be of critical importance to a central issue for determination. Further, the Minister submitted that consideration of the terms of the letter reveals that it said little more than the appellant’s former wife’s letter, which the Tribunal had clearly considered.

43    The primary judge addressed this ground of review at [61] of his reasons, seemingly moving directly to the issue of materiality by stating “I do not accept that had the Tribunal taken the step of locating the father-in-law’s letter it would have had a realistic possibility of leading to a different decision. The [appellant]’s representative gave the Tribunal an outline of what was said in the letter and then the Tribunal considered those submissions as outlined above [referring to the earlier consideration of the ground 1].” I have, in effect, considered that part of the primary judge’s reasoning under ground 1 above in addressing the extended materiality assessment on the posited further past hypothetical that the Tribunal, after having considered the grandfather’s support on the material before it, could then have called for and obtained a copy of the grandfather’s omitted letter, and considered the terms of that letter.

44    The primary judge’s approach to this ground of review below, in keeping with the parties’ written submissions below and on appeal to this Court, was framed on the assumption that the Tribunal had considered the grandfather’s support as expressed on the material before it (the subject of ground 1), and the issue was whether the Tribunal nonetheless fell into jurisdictional error by failing to inquire to obtain a copy of the grandfather’s letter itself. Consistently with that approach, when introducing this ground at the hearing of the appeal, counsel for the appellant stated that it was an alternative to ground 1, as it was predicated on ground 1 having failed on the basis of a finding that the Tribunal had considered the grandfather’s support as expressed on the material before it. However, during the course of the hearing of the appeal, counsel for the appellant developed an argument that grounds 1 and 2 could be considered cumulatively, rather than alternatively, on the basis that the Tribunal erred by failing to consider the grandfather’s support as expressed on the material before it (ground 1), and also erred by failing to inquire to obtain the grandfather’s letter itself (ground 2).

45    In Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; 259 ALR 429, the High Court considered whether a Tribunal’s failure to make a factual inquiry gave rise to a jurisdictional error. The joint reasons of French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ set out the following statement of principles at [25] –

Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a “duty to inquire”, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error.

(Emphasis added)

46    In SZIAI, the Tribunal affirmed a decision of a delegate of the Minister to refuse to grant SZIAI a protection visa. SZIAI had claimed a well-founded fear of persecution if returned to Bangladesh as a result of having converted from the Sunni Muslim faith to become an Ahmadiyya Muslim, and had submitted certificates to the Tribunal to evidence his conversion. During its review process, the Tribunal received a letter from the Ahmadiyya Muslim Association Australia Inc that stated that the certificates submitted by SZIAI were “fake & forged”. After receiving that letter, the Tribunal sent a letter to SZIAI’s solicitors attaching a copy of the Association’s letter and inviting comment on that information, which the Tribunal stated it considered would, subject to any comment made, be the reason or part of the reason for affirming the delegate’s decision. SZIAI’s solicitors responded by stating that SZIAI disagreed with the information in the Association’s letter and that he re-stated his claim to have converted to be an Ahmadiyya Muslim. The Tribunal proceeded to find that SZIAI was not a witness of truth, and to affirm the delegate’s decision. On judicial review, SZIAI claimed that the Tribunal erred by not making inquiries of the authors of the certificates submitted by SZIAI to evidence his conversion. The joint reasons at [26] stated that there was nothing on the record to indicate that any further inquiry by the Tribunal could have yielded a useful result, so there was no factual basis for the conclusion that the failure to inquire constituted a failure to undertake the statutory duty of review or that it was otherwise so unreasonable as to support a finding that the Tribunal’s decision was infected by jurisdictional error. The joint reasons at [27] also stated that no issue of procedural fairness otherwise arose because SZIAI was given an opportunity to comment on the Association’s letter, and the Tribunal considered his response. Consequently, the Court held that no jurisdictional error arose because of the Tribunal’s failure to make that factual inquiry suggested by SZIAI on judicial review.

47    In Wei v Minister for Immigration and Border Protection [2015] HCA 51; 257 CLR 22, Nettle J, who agreed with the orders proposed in the joint reasons of Gageler and Keane JJ but for different reasons, considered and applied the principles expressed in SZIAI and found that a delegate of the Minister erred by failing to make a factual inquiry before cancelling the appellant’s student visa. The delegate had relied upon an online system that showed that the appellant was not enrolled in a course provided by a registered institution, as was required, and proceeded to cancel his visa despite being aware that his attempts to put the appellant on notice of that information and seek a response had been unsuccessful. In fact, the appellant had been enrolled as required, and the online system contained incorrect information. Nettle J concluded at [51] –

Given the criticality of the fact that the plaintiff was enrolled at the University, the relative ease with which that fact could have been ascertained, the obviousness of the means of doing so – by picking up the telephone and requesting the University to check whether the plaintiff’s enrolment status as shown in PRISMS [the online system] was in fact correct – and the clear link between the delegate’s failure to make that inquiry and the delegate’s determination to cancel the visa, I consider this to be a case in which the delegate’s failure amounted to a constructive failure to exercise jurisdiction and therefore a jurisdictional error.

48    The principles expressed in SZIAI concerning jurisdictional error by failure to make a factual inquiry have also been considered and applied in many decisions of this Court. By his submissions, the Minister drew attention to statements in two decisions. First, a statement of Katzmann J referring to the High Court’s statement of principles at [25] in SZIAI as “somewhat cautious remarks”: Minister for Immigration and Border Protection v SZTRF [2013] FCA 1377 at [28]. And second, a statement of Kenny J referring to the circumstances in which this type of error would arise as being “rare and exceptional”: Minister for Immigration and Citizenship v Le [2007] FCA 1318; 164 FCR 151 at [60], which was referred to in the joint judgment in SZIAI and has been frequently cited with approval. More recently, the Full Court has had occasion to consider and apply these principles: see, for example, Karan v Minister for Home Affairs [2019] FCAFC 139 at [29]-[33] (Rares, Griffiths and Burley JJ), Ashraf v Minister for Immigration and Border Protection [2018] FCAFC 50; 261 FCR 97 at [56]-[62] (Tracey, Mortimer and Moshinsky JJ), and Kaur v Minister for Immigration and Border Protection [2017] FCAFC 184; 256 FCR 235 at [29]-[35] (Dowsett, Pagone and Burley JJ).

49    In the present appeal, the Court is not required to speculate as to what hypothetical material the Tribunal may have uncovered if it had undertaken the inquiry suggested by the appellant. Nor is the Court required to deduce the means by which the Tribunal should have, as pressed by the appellant, undertaken that inquiry. The appellant claims that the Tribunal should have asked his representative for a copy of the grandfather’s omitted letter. Picking up the language of joint reasons in SZIAI, I accept that the suggested inquiry was “obvious”. As I have already stated, upon reviewing the appellant’s representative’s submissions to the Tribunal dated 7 November 2018 and the attachments, it is readily apparent that the grandfather’s letter was omitted, and a second copy of the appellant’s former wife’s letter included in its place. It may also be accepted that the contents of the letter could have been “easily ascertained” by the Tribunal asking the appellant’s representative for a copy of the letter. However, those matters do not establish error, still less jurisdictional error. Nor does the mere fact that it may have been reasonable to make an inquiry mean the failure to make such an inquiry amounts to a jurisdictional error: Kaur v Minister for Immigration and Border Protection [2017] FCAFC 184; 256 FCR 235 at [33] (Dowsett, Pagone and Burley JJ), and the cases cited therein. In my view, that leaves two key issues to be determined.

50    The question whether the content of the grandfather’s letter was a “critical fact”, such that the Tribunal was required to make the suggested inquiry to obtain a copy of the letter must be answered by reference to the material that was before the Tribunal, without regard to the contents of the letter. That is because the question whether the subject of the suggested inquiry was a critical fact is necessarily anterior to the outcome of that inquiry. Using Nettle J’s reasons in Wei as an example, the critical fact there was whether the appellant was enrolled in a course provided by a registered institution, and not the later known outcome that the appellant was so enrolled and the online system was wrong.

51    I have formed the view that the question whether the content of the grandfather’s letter was a fact so critical that a failure to inquire about it constituted a jurisdictional error does not arise as a discrete issue, because of my conclusions in relation to ground 1, namely that the Tribunal did not consider the grandfather’s support at all. It would be artificial therefore to consider the narrower question whether the failure of the Tribunal to inquire about the contents of the letter was alone a jurisdictional error, which would not be dispositive of the appeal.

Ground 3 – the exercise of the discretion – the degree and nature of the risk

52    In the proceeding below and on appeal the appellant submitted that the Tribunal failed to consider his clearly articulated submissions that the Tribunal should not exercise the discretion to cancel his visa because the risk of harm that he posed to his family had decreased since the alleged incident on 23 November 2017. As I have mentioned, the appellant did not take issue with the Tribunal’s assessment that he “is or may be, or would or might be, a risk to” his former wife, his daughter, and the grandfather (the first step), which he acknowledged set a very low threshold that required only the possibility of risk. Rather, the appellant’s complaint was with an alleged failure by the Tribunal to respond to his submissions as to the extent of that risk, which he said had decreased since the alleged incident on 23 November 2017, in the exercise of the discretion whether to cancel his visa (the second step).

53    The Minister submitted that the Tribunal was not required to quantify or articulate the degree of risk in considering whether to exercise the discretion, including in response to the appellant’s submissions. Further, the Minister submitted that despite not being required to do so, there was no good basis to consider that the Tribunal did not consider the appellant’s submissions about the degree of risk that he posed to his family. The Minister submitted that the Tribunal had considered that risk in some detail in forming its state of satisfaction in the first step of its review, including in response to submissions made by the appellant as to matters said to reduce the risk that he posed (for example, including submissions about the resolution of the conflict with his former wife and the development of a parenting plan), and the Tribunal took those submissions into account in exercising the discretion in the second step of its review.

54    The issues between the parties are first, whether the Tribunal was required to consider the appellant’s submissions about the extent of the risk posed by the appellant in undertaking the second step of its review, and second, whether the Tribunal did in fact consider those submissions. Given that ground 1 will be upheld, in relation to ground 3 it is sufficient that I state my conclusion that the Tribunal did consider the appellant’s submissions, such that the first issue does not arise.

55    The parties agreed on the well-established principles relevant to determining whether the Tribunal had considered the appellant’s submissions. The Tribunal’s failure to consider a clearly articulated argument may constitute a jurisdictional error: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 197 ALR 389 at [24]-[25] (Gummow and Callinan JJ) and [95] (Hayne J). Mere reference to a submission does not necessarily mean that the submission has been considered. The question is whether, in substance, the submission has been considered: Minister for Home Affairs v Omar [2019] FCAFC 188; 272 FCR 589 at [37]-[38] (Allsop CJ, Bromberg, Robertson, Griffiths and Perry JJ).

56    In my view, by this ground of appeal the appellant seeks to rely upon an unduly narrow reading of the Tribunal’s reasons. As is well-established and often repeated, the reasons of the Tribunal are “not to be construed minutely and finely with an eye keenly attuned to the perception of error”: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at 272 (Brennan CJ, Toohey, McHugh and Gummow JJ), citing Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; 43 FCR 280 at 287 (Neaves, French and Cooper JJ), which in turn cited Politis v Commissioner of Taxation [1988] FCA 739; 16 ALD 707 at 708 (Lockhart J). The appellant’s argument relies on treating the Tribunal’s reasoning in relation to the first step as wholly distinct from, and not carrying through to, its reasoning in relation to the second step. While that is the structure adopted in the Tribunal’s written reasons, I do not accept that it fairly reflects the substance of the Tribunal’s reasoning process. Further, to the extent that the appellant’s submissions on this ground were focussed on an alleged failure by the Tribunal to address specifically the submission put at [43] of his representative’s submissions to the Tribunal dated 7 November 2018, being the submission that the Tribunal should put less weight on the circumstances in which the ground for cancellation arose in the exercise of the discretion because “the offence occurred in the context of a toxic and unhealthy relationship”, and the appellant and his former wife “have since divorced and the circumstances present in [the appellant]’s life at the time of the alleged offending have been extinguished”, I consider that the Tribunal addressed that submission. At [47] of its reasons, the Tribunal recorded the submission – “the [appellant] submits his relationship with the sponsor was ‘toxic’, but this has changed as he has been in custody and they have now divorced” – and then the Tribunal went on to address it by stating that it was “satisfied the circumstances in which the ground for cancellation arose were not circumstances beyond the [appellant]’s control”. I consider that the Tribunal considered the appellant’s submission, construed that submission as advancing an argument that the circumstances in which the ground for cancellation arose were beyond his control, and then rejected that argument.

Ground 4 and 5 – not waiting for the determination of the criminal charges

57    These grounds of appeal address the Tribunal’s refusal of the appellant’s request that the Tribunal adjourn its review until after the determination of the criminal charges against him. By ground 4, the appellant claimed that the Tribunal erred by asking itself the wrong question in determining whether to grant his request to adjourn its review. As an alternative to ground 4, by ground 5 the appellant claimed that the Tribunal’s refusal of his request was legally unreasonable.

Ground 4

58    The appellant submitted that the Tribunal failed to consider exercising its discretion under s 363(1)(b) of the Act to adjourn its review. The appellant submitted that the Tribunal only considered whether it could lawfully make a decision prior to the appellant’s criminal trial, not whether it should adjourn its review. The appellant’s submissions on this ground focussed on [25] of the Tribunal’s reasons, which I have set out at [12] above. In particular, the appellant’s submissions focussed on the Tribunal’s statement that it “would not fall into jurisdictional error if it does not wait for the County Court [criminal] trial to conclude before making its findings.”

59    As with ground 3, I consider that the appellant’s submissions on this ground seek to apply over-zealous scrutiny to the Tribunal’s reasons. The Tribunal’s statement that it would not fall into jurisdictional error if it did not adjourn its review until after the conclusion of the appellant’s criminal trial was responsive to submissions that the appellant had made to it. That is apparent when the statement is read in context. The preceding sentences of the Tribunal’s reasons summarised the appellant’s submissions on the point, and at the beginning of the relevant sentence, the Tribunal stated “I disagree” (with those submissions) before stating that it would not fall into jurisdictional error by not adjourning its review. Consistently with the primary judge’s conclusion on this ground of review below, I accept the Minister’s submission that the fair reading is that the Tribunal considered whether it should accede to the appellant’s request to delay its review, decided not to do so, and expressed confidence that its decision was not legally unreasonable such that it would fall into jurisdictional error.

Ground 5

60    As an alternative to ground 4, the appellant submitted that if the Tribunal did consider whether to exercise its discretion to adjourn its review, its decision not to do so was legally unreasonable because it lacked an intelligible basis. The appellant submitted that the fact that the Tribunal could make a lawful decision not to adjourn its review did not provide a basis for it refusing to exercise the discretion. The appellant submitted that the Tribunal did not give any reasons as to why its decision needed to be made urgently, in circumstances where new information relevant to the exercise of the discretion whether to cancel the appellant’s visa could emerge as a result of the criminal trial, and the appellant posed no immediate risk to the community.

61    I do not accept that the Tribunal acted unreasonably in the requisite sense in refusing the appellant’s request that it adjourn its review. That course was reasonably open to the Tribunal. As submitted by the Minister, in considering this ground of appeal it is important to emphasise that the Tribunal’s task was not to make findings on the appellant’s criminal guilt arising from the alleged incident on 23 November 2017, but rather it was to determine whether the appellant is or may be, or would or might be, a risk to his former wife, his daughter, or the grandfather, and if so, to decide whether to exercise the discretion to cancel his visa. The Tribunal made that clear during its review process and in its reasons. At [28] of its reasons, the Tribunal stated that “[i]n the hearing I advised the [appellant] it was not my role to make findings on fact in relation to the charges”. And at [51] of its reasons, the Tribunal stated that “the tribunal is not making a finding of fact on the charges, but assessing the possible future risk to three individuals. The tribunal is not considering a punishment for the charges as the [appellant’s] representative suggests; the tribunal is assessing whether the [appellant], by being present in Australia, is or may be or would or might be, a risk to the health or safety [of] his ex wife, his daughter or [the grandfather].” In undertaking that task, the Tribunal considered the material that was available to it. The Tribunal did not rely solely on the fact that the appellant had been committed to stand trial for the criminal charges arising out of the alleged incident on 23 November 2017. The Tribunal also had regard to evidence that the appellant had been the subject of a family violence intervention order, that he had made threats to kill his former wife, that he had a history of family violence and threatening behaviour, and that his daughter was scared of him. The appellant submitted that if the Tribunal had decided to adjourn its review, then new information could have emerged, which could have informed the Tribunal’s exercise of the discretion whether to cancel his visa. As it turned out, after the Tribunal had affirmed the delegate’s decision to cancel the appellant’s visa, the appellant was found not guilty of at least some of the alternative charges of violence that had been laid against him. Nonetheless, I do not consider that the implied condition to act reasonably required the Tribunal to adjourn its review.

Conclusion

62    I have determined to allow the appellant’s first ground of appeal. Accordingly, I shall make orders, in place of those made by the Federal Circuit Court, setting aside the Tribunal’s decision and directing the Tribunal to conduct its review function according to law. I shall also make orders that the appellant receive his costs in the Court below and on appeal to this Court.

Associate:

Dated:    12 February 2021