Federal Court of Australia

Dunasemant v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 128

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The applicant pay the first respondent’s costs.

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

REASONS FOR JUDGMENT

KATZMANN J:

Introduction

1    Luke Dunasemant is a New Zealand citizen who has lived in Australia for about 18 years. Until September 2018 he did so lawfully as the holder of a Special Category Class TY Subclass 444 (temporary) visa. Mr Dunasemant has an extensive criminal history, both here and in New Zealand. On 10 August 2018 he was sentenced by the Queensland District Court to two years imprisonment for the offence of robbery with violence and to various terms, the longest of which was 12 months, for several summary offences. The terms of the summary offences were ordered to be served concurrently with each other but cumulatively upon the sentence for the robbery offence. The sentence for robbery was reduced on appeal to a total of 12 months’ imprisonment. On 14 September 2018, while he was in prison serving that sentence, the Minister cancelled his visa. Having been sentenced to a term of 12 months’ imprisonment, the Minister was satisfied that he failed the character test and, since he was serving a full-time custodial sentence, the Minister was required to cancel his visa: see Migration Act 1958 (Cth), s 501(3A). Mr Dunasemant requested that the Minister revoke the decision. A delegate of the Minister declined to do so and, on review, the Administrative Appeals Tribunal affirmed the Minister’s decision.

2    On 29 October 2020 Mr Dunasemant filed an originating application seeking relief in this Court. At the time of filing he was unrepresented, but shortly thereafter he appointed a solicitor to represent him. By an amended originating application filed on 20 November 2020 Mr Dunasemant now applies for an order in the nature of certiorari quashing the Tribunal’s decision and the issue of a writ of mandamus directed to the Tribunal to determine his application for review according to law. The basis for the application is that the Tribunal’s decision was affected by jurisdictional error. For the reasons that follow that contention is not made out.

The legislative scheme

3    Section 501 of the Migration Act gives the Minister the discretionary power to cancel a visa if the Minister reasonably suspects that the visa holder does not pass the character test and the visa holder does not satisfy the Minister that they do so (subs (2)) or the Minister is satisfied that the cancellation is in the national interest (subs (3)). Cancellation is mandatory if the Minister is satisfied that the visa holder does not pass the character test for certain reasons and is serving a full-time custodial sentence for an offence committed against Australian law at the time (subs(3A)).

4    Section 501(3A) provides:

The Minister must cancel a visa that has been granted to a person if:

(a)    the Minister is satisfied that the person does not pass the character test because of the operation of:

(i)    paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or

(ii)    paragraph (6)(e) (sexually based offences involving a child); and

(b)    the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.

Paragraph (6)(a) provides that, for the purposes of s 501, a person does not pass the character test if the person has a substantial criminal record as defined by subs (7). The relevant paragraph of subs (7) is (c):

For the purposes of the character test, a person has a substantial criminal record if:

…

(c) The person has been sentenced to a term of imprisonment of 12 months or more.

5    Section 501CA relevantly provides as follows:

501CA    Cancellation of visa—revocation of decision under subsection 501(3A) (person serving sentence of imprisonment)

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

…

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

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

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

(ii)    particulars of the relevant information; and

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

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

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

   (b)    the Minister is satisfied:

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

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

6    It follows from the plain language of the section that the task of the decision-maker under s 501C(4)(b)(ii) is to decide whether there is another reason to revoke the cancellation decision. In reviewing the Minister’s decision on its merits, the Tribunal stands in the shoes of the Minister. In carrying out the statutory task, it is required to give “meaningful consideration” to any significant and clearly expressed relevant representations on this subject (Minister for Home Affairs v Omar (2019) 272 FCR 589 at [34] and [37]) and that involves engaging in an “active intellectual process” (Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352 at [46]; Omar at [36]).

7    The Minister may give written directions to a person or body having functions or powers under the Migration Act about the performance of those functions or the exercise of those powers (s 499(1)). If such directions are given, the person or body must comply with them (s 499(2A)). Direction no. 79, entitled “Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA”, was such a direction. In exercising the power in s 501CA(4), the Tribunal was required to apply the Direction.

8    Paragraph 13, in Part C of the Direction, relevantly provides that, “[w]here the discretion to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case”. Paragraphs 13 and 14 set out the matters the decision-maker is required to take into account. They are described as “primary” and “other” considerations. Paragraph 8(4) stipulates that primary considerations should generally be given greater weight than the other considerations and para 8(5) provides that one or more primary considerations may outweigh other primary considerations.

9    Paragraph 13 contains the primary considerations. They are the protection of the Australian community, the best interests of minor children in Australia, and the expectations of the Australian community.

10     Other considerations are dealt with in para 14. Paragraph 14(1) provides:

In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):

 a)    International non-refoulement obligations;

 b)    Strength, nature and duration of ties;

 c)    Impact on Australian business interests;

 d)    Impact on victims;

e)    Extent of impediments if removed.

(Emphasis added.)

11    Paragraph 14.2 is the basis for the first ground of Mr Dunasemant’s application. It elaborates on item b) above. Paragraph 14.2 provides that:

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

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

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

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

b)    The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the 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).

(Emphasis added.)

12    Paragraph 6.3 contains the principles underpinning the Direction, the last of which reads:

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

The Tribunal’s decision

13    There was no dispute about the first limb of s 501CA(4)(b)(i). Mr Dunasemant conceded that he did not pass the character test. The sole issue for the Tribunal was whether it was satisfied that there was another reason why the decision to cancel his visa should be revoked.

14    The Tribunal found that two of the three primary considerations — the first (the protection of the Australian community from criminal or other serious conduct) and third (the expectations of the Australian community) — both weighed heavily in favour of non-revocation. The Tribunal found that the second primary consideration (the best interests of minor children in Australia) weighed moderately in favour of revocation. The Tribunal also had regard to the other considerations listed in para 14.1 of the Direction, to the extent that they were relevant, and accorded differing levels of weight to them. It decided that the first and third primary considerations significantly outweighed all other considerations and “[a] holistic view of the considerations in the Direction therefore favours the non-revocation of the decision to cancel [Mr Dunasemant’s] visa”. It therefore concluded that it could not exercise the discretion to revoke the cancellation of the visa. As the Minister observed in his submissions, the Tribunal made these findings and reached this conclusion having regard to its anterior findings concerning the frequency and severity of Mr Dunasemant’s offending, “an increasing trend in the seriousness of [his] offending”, and the severity of the harm that could ensue if he were to reoffend. One of those findings was that the nature of the harm resulting from any return by Mr Dunasemant to “his offending ways” was so serious that exposing the Australian community to “any future risk” was “unacceptable”.

The scope of the application

15    The amended originating application contains two grounds.

16    The first is that the Tribunal failed to consider the effect of non-revocation on Mr Dunasemant’s mother, although it was bound by the terms of para 14.2(1)(b) of the Direction to do so.

17    The second ground arose from the Tribunal’s decision to decline Mr Dunasemant’s request that it look behind two convictions for breaches of domestic violence orders. It alleged a failure by the Tribunal to afford Mr Dunasemant procedural fairness before making certain findings about evidence proffered to challenge those convictions. During the hearing of this application, however, this ground was withdrawn.

18    It follows that the only question for determination is whether the Tribunal fell into jurisdictional error by failing to consider the effect of non-revocation on Mr Dunasemant’s mother, Maria Dunasemant.

Did the Tribunal fail to consider the effect of non-revocation on the applicant’s mother?

19    This ground relates to the Tribunal’s treatment of one of the “other considerations”, namely the strength, nature and duration of Mr Dunasemant’s ties to Australia. The Tribunal addressed this consideration at [237]–[244].

20    The Tribunal began its analysis with what it described as the “limited concession” made by the Minister in his Statement of Facts, Issues and Contentions (SFIC) that “[o]verall, the Minister accepts that this consideration weighs in favour of the applicant, however contends that it does not outweigh the protection of the Australian community or the expectations of the Australian community”. The Tribunal then addressed para 14.2(1)(a) of the Direction, which is presently irrelevant. It is sufficient to observe that the Tribunal concluded that no weight could be allocated in Mr Dunasemant’s favour to the factor with which para 14.2(1)(a)(i) is concerned since Mr Dunasemant had begun offending before he came to Australia and resumed offending in Australia in his second year here. Nevertheless, the Tribunal accepted that Mr Dunasemant had “spent time making a positive contribution to the Australian community”, referring to his “sound employment history”, and concluded that “a moderate level of weight in his favour” could be allocated to the factor under para 14.2(1)(a)(ii).

21    It is convenient to cite the Tribunal’s entire consideration of para 14.2(1)(b), which begins at [240]:

240.    Regard must also be had to paragraph 14.2(1)(b) of the Direction which is concerned with the Applicant’s strength, duration and nature of any family or social links with Australian citizens and/or people who can otherwise remain here indefinitely. It is clear from the evidence that the Applicant has ties with Australian citizens and/or people who have an indefinite right to remain in Australia. As mentioned earlier, he arrived in Australia aged 19 years and is now 38 years of age. He has therefore spent half his life in Australia. In addition to his two biological children and one stepchild in Australia, he also has immediate and extended family who reside here. According to his Personal Circumstances Form, those people are:

“(a) Mother;

(b) Brother;

(c) Aunt;

(d) Cousin;

(e) Cousin;

(f) Uncle;

(g) Cousin;

(h) Cousin; and

(i) Cousin.”

241.    I am mindful of the Applicant’s evidence given both in chief and in cross-examination. In his evidence in chief, he said:

“MR MCCOMBER: And in the alternative if you aren’t allowed to remain in Australia and you’re forced to be removed to New Zealand what do you see your life like – being like in New Zealand?

WITNESS: I don’t have any family there, like I don’t have – you know, I don’t have family. It’s pretty much a death sentence for me, you know. That’s the way I see it.”

242.    In cross-examination, he said:

“MR KYRANIS: You said in your evidence earlier today that you have no family members in New Zealand, is that right?

WITNESS: I have none.

MR KYRANIS: You [–] None of your mother’s relatives live there?

WITNESS: My mum’s got relatives there but we’re not close. I don’t know them. They’re all – some of my mother’s – my mum’s got one older brother who’s got polio. Not polio, he caught it in the ‘70s when he was born, so he’s normally functioning in the brain. He lives in what do you call it aged – like an aged care facility. He can’t even (indistinct) he can’t speak. He plays with sticks all day. And my mother’s other brother is a drugo and I don’t want to go back to that. I don’t know him, so ---

243.    With specific reference to this paragraph 14.2(1)(b), I find that the strength, nature and duration of the Applicant’s relationships with members of the Australian community are strong and palpable. I find that this paragraph 14.2(1)(b) weighs strongly in favour of a finding to restore the Applicant’s visa status to remain in Australia.

22    At [244] the Tribunal concluded that, “having regard to the totality of evidence relevant to this Other Consideration (b)”, apparently a reference to para 14(1)(b) of the Direction and thus purportedly encompassing paras 14.2(1)(a) and (b), “it weighs strongly in favour of revocation, but is outweighed by Primary Considerations A [protection of the Australian community from criminal or other serious conduct] and C [expectations of the Australian community], which favour non-revocation”.

23    None of this discussion addressed the effect of non-revocation on Ms Dunasemant — at least not directly — and it is common ground that the Tribunal did not discuss the effect of non-revocation on Ms Dunasemant anywhere in its reasons.

24    Mr Dunasemant submitted that the Tribunal was required to consider the effect of non-revocation on his mother as a member of his family with a right to remain in Australia indefinitely so that its failure to do so amounts to jurisdictional error. Yet, despite the terms of para 14.2(1)(b) of the Direction, the Tribunal did not consider the effect of non-revocation on any of his immediate family members in Australia. He also submitted that, if the Tribunal had considered the effect of non-revocation on his mother as it was required to do, then “it is possible the Tribunal may have found” that the first and third primary considerations were outweighed by the other consideration in para 14.2(1).

25    The first question is whether the Tribunal was required to consider this matter, the second is whether it failed to do so, and the third is whether it could have made a difference if it had.

26    The requirement to consider the effect of revocation on Mr Dunasemant’s mother only arose if it was relevant (see the chapeau to para 14(1) of the Direction), if Mr Dunasemant’s submission relied on “established facts” (see AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503 at [18] per Collier, McKerracher and Banks-Smith JJ), and if his mother was an Australian citizen, permanent resident, or had a right to remain in Australia indefinitely (see para 14.2(1)(b)).

27    Dealing with the last aspect first, the evidence was that Ms Dunasemant is a New Zealand citizen. I was led to believe that there was no evidence before the Tribunal that she was a permanent resident or that she had a right to remain in Australia indefinitely. But the Minister did not take this point either in this Court or in the Tribunal. It was therefore common ground that Ms Dunasemant at least had a right to reside in Australia indefinitely. This is the effect of a subclass 444 (special category) visa which her son had and which she may well have. Such a visa is described in the Migration Regulations 1994 (Cth) as a temporary visa but the visa remains in effect for as long as the holder is a New Zealand citizen: see reg 444.511.

28    The next question is whether the effect on Ms Dunasemant was relevant. The answer depends on whether any representation on the subject was made. As Bromberg and Mortimer JJ observed in DQM18 v Minister for Home Affairs [2020] FCAFC 110 at [23], “the state of satisfaction required by s 501CA(4)(b)(ii) cannot be lawfully formed without consideration of the representations which have been invited …”.

29    In the “Personal Circumstances Form” completed by Mr Dunasemant on 2 October 2018 he stated that his mother was a New Zealand national resident in Australia. In the same form he described the impact that the cancellation of his visa would have, or has had, on his family:

It is distressing to my family because the strength of my family ties to Australia and the fact we are all close and they would all be emotionally distraught by my removal.

30    The request for revocation made to the Minister on Mr Dunasemant’s behalf addressed the consideration in para 14.2(1), pointed out that he had lived half his life and all his adult life in Australia, listed the members of his immediate and extended family who live in Australia, and contained the following submission:

72.     It is submitted that in circumstances where:

  (a)    the Applicant arrived in Australia in 2002 aged 19 years old;

(b)    prior to engaging in the criminal conduct, the Applicant has positively contributed to the Australian community through his gainful, remunerative employment;

(c)    the Applicant’s son, immediate family (mother and siblings), friends, work, and an established rehabilitation support available to him in Australia; and

(d)    the effect of non-revocation on the Applicant’s immediate family in Australia,

this consideration should weigh strongly in favour of exercising the discretion.

…

73.     It is submitted the non-revocation of the mandatory visa cancellation would cause hardship to his family as non-revocation would result in the continued separation of our client from his family.

31    In Mr Dunasemant’s SFIC there was no reference to this specific submission about the continued separation from the family or to the evidence from Ms Dunasemant to which I will come shortly. But in the context of his contentions about the strength, nature and duration of his ties to Australia, he submitted that his mother, his brother, and his ex-partner, Cara, “would be significantly adversely effected (sic) by a non-revocation decision”. Submissions were also made about the other matters with which para 14.2(1) of the Direction is concerned. This part of the SFIC concluded with the submission that “this consideration weighs heavily in favour of revocation”.

32    In these circumstances there could be no doubt that the effect of non-revocation on Ms Dunasemant was relevant and, provided the submission was based on established facts, the Tribunal was bound to consider the question.

33    Mr Dunasemant’s statement to the Tribunal was silent on the subject, although it referred to the representations he made to the Department in support of his request for revocation which included the statement in his Personal Circumstances Form reproduced at [29] above.

34    A statement from Ms Dunasemant was provided to the Tribunal. Mr Dunasemant relied on the last two sentences in the concluding paragraph emphasised below:

Please I pledge that my son will be a valued member of society here in Australia. I ask in gods name that you take all matters into consideration. He has made a mistake, and his family deserve to have their father present. I am not getting any younger. I would appreciate and be blessed to keep my son close to me.

35    Both Mr Dunasemant and his mother were called to give evidence at the hearing but no transcript was included in the court book or otherwise produced to the Court. I was informed by Mr McComber, who appeared for Mr Dunasemant both in this Court and before the Tribunal, that a transcript had not been obtained for “financial reasons”. Be that as it may, financial reasons would not have precluded him from filing an affidavit if there had been anything to say. It follows that there was nothing before the Court to indicate that any evidence on the subject was adduced at the hearing or that any reference was made in submissions to the representation concerning the effect of non-revocation on Ms Dunasemant. It is not open to the Court to speculate on the matter but the Court may infer that no such evidence was adduced and no such reference was made.

36    Mr Dunasemant’s statement does not specifically refer to the effect of non-revocation on his mother. The fact that it is no part of his case that the Tribunal erred by failing to consider the effect of non-revocation on his brother or his ex-partner rather suggests that Mr Dunasemant’s case rests or, at least heavily depends, on what his mother said in her statement. It is difficult to know what to make of the passage in Ms Dunasemant’s statement upon which Mr Dunasemant relied. It is opaque on the subject. It begs the question. Taken at its highest it invites the reader to speculate about it. On any view of the matter, it was a tenuous foundation for a submission that non-revocation would have a significant effect on her. That submission was not based on “established facts”.

37    In submissions to the Court, however, Mr Dunasemant sought to lift himself up by the bootstraps of an alleged concession by the Minister in his SFIC where at [50] the Minister stated:

Separately from the minor aged children discussed above, the applicant has a family network in Australia including his mother, brother and other distant relatives (T31/128). Whilst it is acknowledged that these family members may suffer some emotional hardship if the applicant were to remain in New Zealand, there is no evidence that these family members are supported by the applicant …

38    To the extent that this was a concession, it was only a concession of the possibility that all the relatives in Australia, including Mr Dunasemant’s mother, would suffer some emotional hardship.

39    It is difficult to see how the Tribunal could have fallen into jurisdictional error by failing to consider a mere possibility of “emotional hardship”, whatever that may mean. Nevertheless, I am prepared to proceed on the basis that the Tribunal was required to have regard to this possibility with respect to Ms Dunasemant, she being the only relative with which this application is concerned.

40    The next question is whether the Tribunal failed to consider that possibility. In case I am wrong in the conclusion I have reached concerning the effect of the evidence, I will also address the question of whether the Tribunal failed to consider that evidence.

41    The onus of establishing that a matter was not considered rests with Mr Dunasemant: BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; 373 ALR 196 at [38] (Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ). Having regard to the fact that it is the applicant who bears the onus of proof, a finding that the Tribunal did not consider a matter it was bound to take into account will not lightly be made and must be supported by “clear evidence”: Carrascalao at [48] (Griffiths, White and Bromwich JJ); Singh v Minister for Home Affairs (2019) 267 FCR 200 at [37] (Reeves, O’Callaghan and Thawley JJ).

42    The fact that the effect of non-revocation on Ms Dunasemant was not mentioned in the Tribunal’s reasons is a good start, but it is not the end of the matter.

43    The failure to mention a matter does not necessarily mean that it was not considered. The Tribunal is not required to identify every matter it considers. It may be that the matter is subsumed within a finding of greater generality: see, for example, Minister for Home Affairs v Buadromo (2018) 267 FCR 320 at [46] (Besanko, Barker and Bromwich JJ). It may be that the Tribunal considered that it was “of no real significance (and therefore of no material relevance) in the circumstances of the particular case”: PQSM v Minister for Home Affairs [2019] FCA 1540 at [35] (Colvin J). In a case such as the present, Colvin J observed at [36]:

Further, the obligation to provide reasons was an obligation to express matters that activated the exercise of the discretion whether to exercise the power to revoke. So, the failure to refer to a matter in the reasons was not necessarily an indication that it was not considered, but may reflect the fact that the particular matter, though considered, was not a matter activating the exercise of the discretion whether to revoke when the Tribunal made its decision: AYX17 v Minister for Immigration and Border Protection [2018] FCAFC 103; (2018) 262 FCR 317 at [61] (Tracey and Mortimer JJ). The Tribunal may have considered the matter, but found it not to be material and for that reason did not refer to the matter in its reasons: SZSRS at [34] (Katzmann, Griffiths and Wigney JJ).

The Tribunal is only required to record its findings on those questions of fact it considered material to its decision and to the reasons it had for making that decision: Administrative Appeals Tribunal Act 1975 (Cth), s 43(2B) (cf. Migration Act, s 430); Minister for Immigration and Citizenship v Yusuf (2001) 206 CLR 324 at [68] (McHugh, Gummow and Hayne JJ, Gleeson CJ agreeing); and at [34], [37] (Gaudron J).

44    Where a particular matter clearly raised in an applicant’s representations is not mentioned in the Tribunal’s reasons, the Court may infer that the Tribunal did not consider it to be material: Omar at [34]. On the other hand, where the statutory task is to consider whether there is another reason to revoke a decision to cancel a visa, the absence of an explanation, whether expressly or implicitly, for not mentioning that a representation squarely raised on the material is not a sufficient reason to do so, “generally raise[s]” “an arguable question” as to whether the Tribunal has performed the statutory task: DQM18 at [34].

45    In support of his argument that the Tribunal failed to consider the effect of non-revocation on his mother, Mr Dunasemant relied on the recent judgment of Derrington J in Okoh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 84.

46    In Okoh, the issue was whether the Tribunal had considered the effect of non-revocation on the applicant’s partner, Ms Agbede. The Tribunal referred in its reasons to the fact that the applicant and his partner had been in a committed relationship for five years and to Ms Agbede’s evidence that she was willing to live in Australia with the applicant if he were released from detention but was not willing to return to Nigeria with him. Derrington J rejected a submission from the Minister to the effect that it was implicit in the reference to Ms Agbede’s unwillingness to return to Nigeria that their relationship would break down and she would emotionally suffer as a result (at [60]–[61]). His Honour observed (at [61]) that there was nothing to suggest that the Tribunal had considered the personal consequences to Ms Agbede if the cancellation decision was not revoked. His Honour held that the issue (and therefore the effect on the applicant’s immediate family in Australia) was neither expressly nor implicitly addressed in the reasons. His Honour accepted that the authorities indicate that a decision-maker may have considered a matter which is not mentioned in the reasons and that the onus is on the applicant to establish that it was ignored. In that case, however, his Honour said (at [62]) that “the structure and content of the reasons strongly indicate” that, if the effect on Ms Agbede had indeed been considered, it would have been reflected in the reasons. His Honour also noted that the Tribunal had referred to some of the evidence on the strength, nature and duration of the applicant’s ties to Australia but had not referred either to the evidence about the effect on Ms Agbede or the submissions on the subject, although “the impact on Ms Agbede was the most significant issue in consideration of this factor” (at [62]). His Honour emphasised the importance of considering “the human consequences” of removal of non-citizens from Australia referring to the oft-cited remarks of Allsop CJ, with which Markovic J agreed, in Hands v Minister for Immigration and Border Protection (2018) 267 FCR 628 at [3].

47    As Mr Dunasemant submitted, there are a number of similarities between this case and Okoh. Here, as in Okoh, the Tribunal did not refer to the evidence (such as it was) or to the contention regarding the effect of revocation on members of the non-citizen’s immediate family (save in this case, in a different context, minor children). More particularly, the Tribunal made no mention of the effect on his mother. The Tribunal’s decision in the present case is detailed and lengthy, running to more than 100 pages. Mr Dunasemant pointed to the fact that the Tribunal addressed other considerations, such as the impact on Australian business interests and the impact on victims, noting that they were not relevant because there was no evidence about them. He submitted that this approach suggested that, as in Okoh, if the Tribunal had considered the effect on Ms Dunasemant that would have been reflected in its reasons.

48    While there are some similarities between this case and Okoh, there is an obvious difference. That is the quality of the evidence in the respective cases.

49    In Okoh Ms Agbede had claimed that, since the applicant’s incarceration she had been through “a lot of emotional turmoil and suffered loss and grief”; that “she lacked support from friends and family”; that deportation of the applicant would cause her “further emotional turmoil”; and would “strain the relationship and bring it to an end” (at [54]). His Honour also referred (at [55]) to oral evidence given by Ms Agbede in which she elaborated on the matters raised in her letter. Amongst other things his Honour mentioned her evidence that, if the applicant were required to return to Nigeria (his country of nationality), she would suffer loss, grief and emotional turmoil. Apparently this evidence was not questioned either by the Minister or the Tribunal (at [57]).

50    The Full Court observed in Omar at [39] that whether the decision-maker is required to make specific findings of fact depends on the nature and content of the representations. Equally, it depends on the nature and content of the evidence and other material before it. This Court has repeatedly emphasised that each case necessarily turns on its own facts and circumstances.

51    In Buadromo at [46] the Full Court observed that:

A finding of fact may not be required if the claim or issue is irrelevant or if it is subsumed within a claim or issue of greater generality or, to use an example advanced by the appellant in the course of submissions in this case, even assuming fact or proposition A, I (the decision-maker) do not accept that fact or proposition B follows. These are only examples and it is not possible to be comprehensive.

52    Later, at [61], the Court held that the representation that the respondent’s children would not be able to afford to visit him in Fiji was subsumed in findings of greater generality made in his favour, namely that his children will suffer financial hardship and emotionally if he returns to Fiji in which event his ex-partner will struggle financially. Alternatively, the Court held that the representation was “subsumed within the more general finding that it is in the best interests of Mr Buadromo’s children that the original cancellation be revoked”.

53    In the present case the Minister submitted that the issue was subsumed within Mr Dunasemant’s claim that the strength, nature and duration of his ties to Australia favoured revocation, a claim the Tribunal upheld. Put another way, the question of the effect of non-revocation was subsumed within the more general findings in [243] (that “the strength, nature and duration of [Mr Dunasemant’s] relationship with members of the Australian community are strong and palpable” and “paragraph 14.2(1)(b) weighs strongly in favour of a finding to restore [his] visa status to remain in Australia”) and [244] that “having regard to the totality of evidence relevant to this Other Consideration (b), I am of the view that it weighs strongly in favour of revocation …”. The Minister argued that an assessment of the effect of non-revocation on the immediate family members to which para 14.2(1)(b) refers is necessarily included in any assessment of the strength, nature and duration of Mr Dunasemant’s ties to Australia.

54    I am not persuaded by the Minister’s submission. This was otherwise a detailed, lengthy, and reasoned decision. In its discussion of the strength, nature and duration of Mr Dunasemant’s ties to Australia, the Tribunal focussed on the effect on Mr Dunasemant of non-revocation based on his connections to the Australian community. The structure and content of the Tribunal’s discussion of para 14.2(1)(b) appears to be based on Mr Dunasemant’s SFIC but it stopped short of dealing with the submission concerning the effect of non-revocation on members of his immediate family in Australia. As in Okoh, the structure and content of the Tribunal’s reasons indicate that if it had considered the question there would have been some reference to it in those reasons. The difficulty with the related argument is that it is by no means self-evident that a Tribunal which made a finding of strong and palpable ties between a non-citizen and his immediate family in Australia must have considered the effect of non-revocation on those family members or any one of them. A finding in favour of revocation could logically be based on an assessment of the effect of non-revocation on the non-citizen alone. The conspicuous absence from otherwise detailed reasons of any reference to the impact of non-revocation on members of Mr Dunasemant’s immediate family in general or his mother in particular indicates that it is unlikely that the Tribunal incorporated this consideration in its reasons.

55    The failure to have regard to the effect of non-revocation on Ms Dunasemant could well have been due to the way in which the case was presented and argued at the hearing. The Tribunal did refer to the paragraph of Ms Dunasemant’s statement in which the subject was allegedly covered but in an entirely different context (at [135]), when addressing the risk of reoffending. In all likelihood the Tribunal did not appreciate that her remarks had anything to do with the effect on her of non-revocation. Having regard to the content of those remarks and the fact that no reference was made to them in Mr Dunasemant’s SFIC, that is entirely understandable. In the absence of any indication to the contrary, I infer that no submission was made to the Tribunal that Ms Dunasemant had said anything about the effect on her of non-revocation.

56    For all these reasons I conclude that the Tribunal overlooked this part of the representation and the evidence which was said to support it.

Was the Tribunal’s omission a material one?

57    The parties were in agreement that, if the Tribunal was required to consider the matter and omitted to do so, the omission does not amount to a jurisdictional error unless it is material and the omission will only be material if, but for the omission, there was “a realistic possibility” of a different outcome: Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at [4], [45]–[50] (Bell, Gageler and Keane JJ). The onus of proof on this question rests with the applicant: SZMTA at [4], [46].

58    Earlier, in Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 at [29]–[30], Kiefel CJ, Gageler and Keane JJ had observed:

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

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

(Footnotes omitted, emphasis added.)

59    The use by the plurality in SZMTA of the adjective “realistic” to qualify the noun “possibility” indicates that an error will not be material if the possibility of a different outcome is fanciful or improbable: see Chamoun v Minister of Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 276 FCR 75 at [66] (Bromwich and Mortimer JJ); DNQ18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 275 FCR 517 at [60] (McKerracher, Mortimer and White JJ).

60    No doubt a failure to consider the effect of non-revocation on a close family member could theoretically affect the weight the Tribunal attached to the “other consideration” of the nature and duration of an applicant’s ties to the Australian community and therefore the balancing exercise the Tribunal is required to undertake.

61    In DQM18 at [113] Bromberg and Mortimer JJ observed that:

Where questions of weight are involved, and a representation raised by a person is a matter of real and not marginal or fanciful relevance to the statutory task, this Court on review is unlikely to be able to conclude one way or the other what weight might have been given to that representation in the discharge of the statutory task, had the representation been approached rationally and on the basis of probative material. A reviewing court is unlikely to be able to conclude the outcome could not have been different, which is in substance the exercise the Minister asks the Court to perform.

62    But “jurisdictional error is an expression not simply of the existence of an error but of the gravity of that error”: Hossain at [25] (original emphasis). And the inquiry into whether an error is material is “context specific”: PQSM v Minister for Home Affairs [2020] FCAFC 125; 382 ALR 195 at [143] (Banks-Smith and Jackson JJ). A significant element of reconstruction is involved, although the Court must proceed cautiously to avoid prejudgment: Chamoun at [70] (Mortimer and Bromwich JJ). The Court cannot assume that the Tribunal approached the decision with a closed mind: AEM20 v Minister for Home Affairs [2020] FCA 623 at [102] (Katzmann J).

63    PQSM was also a case involving the exercise of the power to revoke a mandatory cancellation decision in which Colvin J at first instance held that the Tribunal had failed to comply with the Direction because it had failed to take into account the effect of revocation of the applicant’s visa on his partner and adult children but that the error was not material. An appeal from that decision was dismissed by a majority of the Court. In PQSM v Minister for Home Affairs [2019] FCA 1540 at [67] Colvin J held that it had not been shown that the failure to comply with the Direction was material, having regard to the reasons given by the Tribunal “for the particular exercise of decision-making power” in that case, “the limited nature of the failure to comply with the Direction and the material that would have been considered if there had been compliance”. His Honour observed at [61] that:

The evidence of the effect upon the applicant's two adult children and the applicant's partner if he was removed from Australia did not identify any significant financial or other dependence on the applicant. The applicant's offending meant that he had been separated from them for considerable periods. As to the evidence from the applicant's partner that she suffered from schizophrenia and paranoia, there was no reference to any material indicating any role that the applicant played in the applicant's partner managing or dealing with her mental illness. In short, the applicant did not seek to develop any contention based upon the material before the Tribunal as to how that material, if considered, might have led the Tribunal to reach a different conclusion.

64    In the present case the only evidence said to touch upon the effect of non-revocation on Ms Dunasemant were the last two sentences of her statement: “I am not getting any younger. I would be blessed to keep my son close to me”. The penultimate sentence is merely a statement of the obvious. The last raises more questions than it answers. The Court was not referred to any material touching upon Ms Dunasemant’s age, her health, her level of infirmity (if any), or the extent to which she had ever relied upon her son or whether she would do so if she could in the future. No evidence was apparently led from her or emerged in cross-examination to support the assertion Mr Dunasemant made in his representation to the Minister or the contention made on his behalf in his SFIC. Notably the Tribunal’s reasons disclose that Ms Dunasemant was questioned by Mr McComber about the effect on her grandchildren if her son were not allowed to remain in Australia. The fact that a similar question was not asked about the effect it would have on her suggests that any answer she could give would not have assisted her son’s case.

65    The representations concerning the effect of non-revocation were no more than bare assertions unsupported by any probative material. It was not suggested that, had the Tribunal taken into account that part of the Direction it overlooked, it could have explored the issue with Ms Dunasemant when she was in the witness box. Nor was anything put before the Court to indicate what she might have said if asked. In any event, the Tribunal found that the consideration to which this matter related weighed strongly in favour of revocation — the very submission made by Mr Dunasemant in his SFIC.

66    It will also be recalled that the Tribunal placed considerable weight on the two primary considerations of protection of the Australian community and the expectations of the Australian community. With respect to the former, the Tribunal found that, having regard to the severity of the harm it could cause, the risk of Mr Dunasemant reoffending was unacceptable. In PQSM v Minister for Home Affairs [2019] FCA 1540 Colvin J took similar findings into account in determining that the error by the Tribunal in that case in failing to take into account the effect of non-revocation on the applicant’s partner and adult children was not material. In the appeal at [68]–[72] Mortimer J considered that his Honour had erred in doing so but the majority held otherwise and on 12 February 2021 the High Court refused special leave to appeal.

67    In PQSM Banks-Smith and Jackson JJ held at [150]–[151]:

Where a decision-maker has failed to address a mandatory consideration, the task of determining whether taking it into account could realistically have made a difference will sometimes be difficult. It will often be more difficult than performing a similar evaluation in relation to specific documents or information that have been omitted. Where it is an entire consideration that has been left out of account, there may be a wide range of factual material that has been omitted. The approach articulated in SZMTA means it will often be necessary for the court to evaluate all that material. In conducting that evaluation, the line between judicial review and merits review may be difficult to discern. Similarly, it will sometimes be difficult to evaluate the Tribunal’s reasoning without substituting the courts own reasoning. The nature of the Tribunal’s task when reviewing decisions under s 501CA(4), which requires a discretionary weighing of all relevant factors, compounds the difficulty confronting the court on judicial review.

Nevertheless, in SZMTA the majority made it clear (at [46]) that where materiality is in issue, it is an ordinary question of fact. It follows that despite all these difficulties, it is a question the court must resolve on the basis of the evidence and inferences available, including the reasons of the Tribunal or other decision-maker under review. It must resolve the question on the basis that the onus of proof is on the applicant: SZMTA at [46].

68    In the present case, regardless of the weight the Tribunal attached to the primary considerations of the protection and expectations of the Australian community, it is fanciful to think that the outcome could have been any different if (approaching the matter fairly and reasonably with an open mind) the Tribunal had considered the effect of non-revocation on Ms Dunasemant. In the absence of any material which would have enabled the Tribunal to make a finding on the nature and extent of the effect, the Tribunal’s error was “so insignificant that [its] failure to take it into account could not have materially affected its decision” (Hossain at [30]). That conclusion is only reinforced if the Tribunal’s opinions on the weight to be attached to the protection and expectations of the Australian community are taken into account. Put another way, having regard to the paucity of evidence on the subject, Mr Dunasemant has not discharged his onus of proof. The oversight on the part of the Tribunal did not “rise to the level of jurisdictional error” (Hossain at [37]).

69    It follows that the application must be dismissed. Costs should follow the event.

Associate:

Dated:    24 February 2021