Federal Court of Australia

FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 775

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

WIGNEY J:

1    The applicant in this matter, who will be referred to as Mr G, is a citizen of New Zealand but a long-time resident of Australia. On 20 November 2017, the visa which permitted him to reside in Australia was cancelled by a delegate of the respondent, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, pursuant to s 501(3A) of the Migration Act 1958 (Cth). On 29 November 2019, another delegate of the Minister refused to revoke the visa cancellation pursuant to s 501CA(4) of the Act. Mr G sought a review of that decision in the Administrative Appeals Tribunal. The Tribunal conducted a review and relevantly affirmed the delegate’s decision on 1 April 2021: FHHM and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 760. Mr G has sought judicial review of the Tribunal’s decision in this Court pursuant to s 476A of the Act. The Tribunal filed a submitting notice, except as to costs.

2    The basis of Mr G’s challenge to the Tribunal’s decision is narrow and confined. He contended, in summary, that the Tribunal erred in the way that it weighed up the competing considerations in Mr G’s case. That contention was based on a single sentence in the penultimate paragraph of the Tribunal’s lengthy and comprehensive Reasons for Decision, though that observation is not to deprecate the potential force of the challenge. As will be seen, the impugned sentence is problematic and somewhat difficult to understand. The critical question is whether it is a mere slip of the pen (or keyboard), or an indication that the Tribunal asked itself the wrong question, or applied the wrong principle, when it came to weighing up the competing considerations in Mr G’s case.

3    Despite the narrowness of the challenge to the Tribunal’s decision, it is necessary to provide some background to the decision and give some consideration to the relevant statutory regime for visa cancellation decisions and their review.

BACKGROUND

4    Mr G was 31 years of age at the time of the Tribunal’s decision. He was born in New Zealand and arrived in Australia as a child in 1993 and has never left. He had a troubled upbringing. Indeed, he has had a troubled life. In the 10 year period from October 2007 he was convicted of 28 offences. The most serious offence was an offence of inflicting grievous bodily harm. He was convicted of that offence in October 2017 and sentenced to a term of imprisonment of three years and three months. It was that conviction and sentence that led to the cancellation of his visa.

5    As has already been noted, on 20 November 2017 a delegate of the Minister decided to cancel Mr G’s pursuant to s 501(3A) of the Act. As discussed in more detail later, that subsection of the Act provides that the Minister must cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the character test in s 501(6) because they have a substantial criminal record and the person is serving a sentence of imprisonment. There is no dispute that Mr G’s circumstances following his conviction in October 2017 fell within s 501(3A) of the Act.

6    Section 501CA of the Act confers a discretion on the Minister to revoke the cancellation of a visa under s 501(3A) if the Minister is satisfied either that the person passes the character test or there is another reason why the cancellation should be revoked. On 29 November 2019, a delegate of the Minister refused to revoke the visa cancellation pursuant to s 501CA(4) of the Act.

7    Mr G applied to the Tribunal for a review of the delegate’s decision. The Tribunal affirmed the delegate’s decision in February 2020, though Mr G successfully challenged that decision in this Court and his review application was remitted to the Tribunal for redetermination. Nothing turns on the first decision of the Tribunal or Mr G’s successful challenge to it. Upon remittal, a differently constituted Tribunal again affirmed the delegate’s decision on 1 April 2021. It is that decision which is the subject of this proceeding.

8    Mr G has two children, a son and a daughter. Both were minors at the time of the Tribunal’s decision. Both reside with their mother in Australia. Mr G also has relatively close non-parental relationships with other minor children within his extended family network in Australia. Not surprisingly, given that he has lived most of his life in Australia, Mr G has strong ties with Australia. While Mr G would no doubt face some impediments if he was required to return to New Zealand, it would appear to be common ground that those impediments would not be substantial or insurmountable.

STATUTORY REGIME – VISA CANCELLATIONS ON CHARACTER GROUNDS

9    Subsection 501(3A) of the Act provides as follows:

(3A)    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.

10    Subsection 501(6)(a) of the Act relevantly 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 s 501(7). Subsection 501(7)(c) of the Act relevantly provides that, for the purposes of the character test, a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.

11    As has already been noted, there is no dispute that, as a result of his October 2017 conviction, Mr G had a substantial criminal record as defined and therefore failed the character test in s 501(6) of the Act. There is also no dispute that, at the time the Minister’s delegate decided to cancel Mr G’s visa on 20 November 2017, Mr G was serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against, relevantly, a State.

12    Section 501CA of the Act provides for the revocation of a decision to cancel a person’s visa under s 501(3A). Subsections 501CA(1), (2) and (3) provide, in effect, that the Minister must give the person whose visa was cancelled notice of that decision, as well as particulars of “relevant information”; information that would be the reason, or part of the reason, for making the decision and is specifically about the person. Subsection 501CA(4) of the Act provides as follows:

(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.

13    Subsection 500(1)(ba) of the Act relevantly provides that applications may be made to the Tribunal for review of decisions of a delegate of the Minister under subsection 501CA(4) not to revoke a decision to cancel a visa.

14    Subsection 499(1)(b) of the Act relevantly provides that the “Minister may give written directions to a person or body having functions or powers under th[e] Act if the directions are about … the exercise of those powers”. Subsection 499(2A) provides that a “person or body must comply with a direction under subsection (1)”. The Tribunal is bound by directions made under s 499 of the Act: Bochenski v Minister for Immigration and Border Protection (2017) 250 FCR 209; [2017] FCAFC 68 at [65].

15    On 20 December 2018, the Minister (then the Minister for Immigration, Citizenship and Multicultural Affairs) gave a direction under s 499 of the Act in relation to visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA of the Act: Direction no. 79. Direction no. 79 revoked Direction no. 65, also made under s 499 of the Act, which had previously applied in respect of cancellation of revocation decisions.

16    It is unnecessary to consider Direction 79 in great detail. It suffices to note the following parts of it.

17    Paragraph 7(1)(b) states that, informed by the principles in paragraph 6.3 (reference to which is unnecessary for present purposes), a decision-maker “must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked”.

18    Paragraph 13(2), which is in Part C, provides that “in deciding whether to revoke the mandatory cancellation of a non-citizen’s visa, the following are primary considerations: (a) Protection of the Australian community from criminal or other serious conduct; (b) The best interests of minor children in Australia; (c) Expectations of the Australian community”. Each of those primary considerations is the subject of further detailed explication: the protection of the Australian community in paragraph 13.1; the best interests of minor children in Australia in paragraph 13.2; and the expectations of the Australian community in paragraph 13.3.

19    Paragraph 14(1), which is also in Part C, provides that “in deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant.” Those 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.” Paragraphs 14.1, 14.2. 14.3, 14.4 and 14.5 provide further detail or guidance in respect of those other considerations.

20    Importantly, at least for the purposes of this matter, paragraph 8 states as follows in relation to taking the relevant considerations into account:

8.    Taking the relevant considerations into account

(1)    Decision-makers must take into account the primary and other considerations relevant to the individual case. …

(2)    In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.

(3)    Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.

(4)    Primary considerations should generally be given greater weight than the other considerations.

(5)    One or more primary considerations may outweigh other primary considerations.

21    The meaning or effect of the equivalent paragraph in Direction no. 65 was given some consideration in the decision of Colvin J in Suleiman v Minister for Immigration and Border Protection [2018] FCA 594. The applicant in that case contended that the Tribunal had erred because it referred to the “other considerations” as “secondary considerations” which conveyed that paragraph 8 established a hierarchy of considerations in which the other considerations were necessarily secondary, or deserving of lesser weight, irrespective of their character. Colvin J accepted that the Tribunal had so erred and set aside the Tribunal’s decision. His Honour said as follows in relation to paragraph 8 (at [23]):

The use by the Tribunal of the term ‘secondary’ indicates that the ‘other considerations’ are always of lesser importance. However, Direction 65 makes clear that an evaluation is required in each case as to the weight to be given to the ‘other considerations’ (including non‑refoulement obligations). It requires both primary and other considerations to be given ‘appropriate weight’. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains ‘generally’ they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are ‘normally’ given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both ‘primary’ and ‘other considerations’. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.

(Emphasis added.)

22    It is the last sentence of this paragraph of Suleiman which has given rise to the issue in this case. That issue will be discussed in more detail later. It suffices at this point to note that, with the greatest respect to Colvin J, this analysis of paragraph 8 of the relevant direction tends to overcomplicate or over intellectualise the issue. More significantly, it may lead decision-makers into error. Paragraph 8 of Direction no. 79 is expressed in simple terms. Relevantly, decision-makers must take into account the primary and other considerations that are relevant to the individual case and, when it comes to weighing up the relevant considerations, have regard to three relevant principles: first, both primary and other considerations may weigh in favour of, or against, whether or not to revoke a cancellation of a visa; second, primary conditions should generally be given greater weight than other considerations; and third, one or more primary considerations may outweigh other considerations. It is difficult to see why any further elaboration of those simple principles or propositions is necessary or warranted.

23    The use of the word “generally” in paragraph 8(4) is intended to convey no more than ‘usually’, ‘commonly’ or ‘ordinarily’. It recognises that there may well be cases where the circumstances are such that one or more “other considerations” may be deserving of more weight than one or more primary considerations. It is not immediately apparent why that somehow requires an “inquiry as to whether one or more of the other considerations should be treated as being a primary consideration”. It is even more difficult to see how it requires an inquiry as to whether one of the other considerations can or should be “afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply”. That formulation of the principle is at least potentially problematic because it tends to suggest that a decision-maker cannot give greater weight to one or more of the “other considerations” in any given case unless they consider that the case is somehow unusual or out of the ordinary. What, however, is the usual or ordinary case? What are the “circumstances that generally apply” in a case involving whether a visa cancellation should be revoked? The answers to those questions are at best elusive. It is somewhat doubtful that a decision-maker should approach the weighing of the relevant considerations by embarking on any such inquiry.

THE TRIBUNAL’S DECISION AND REASONS

24    As has already been noted, the Tribunal affirmed the delegate’s decision not to revoke the cancellation of Mr G’s visa. The Tribunal’s reasons for so finding are lengthy, comprehensive and, save for the single impugned sentence in the penultimate paragraph, logical and cogent. So much so was conceded by counsel for Mr G. In those circumstances it is unnecessary to give detailed consideration to the reasons. Following are the key points.

25    The Tribunal was aware that it was obliged to apply Direction no. 79: Reasons at [46].

26    The Tribunal identified the relevant primary considerations and other considerations by reference to paragraphs 13 and 14 of Direction no. 79: Reasons at [52]-[53].

27    The Tribunal specifically referred to and extracted the key parts of paragraph 8 of Direction no. 79: Reasons at [51]. The Tribunal also referred to and extracted the last sentence of paragraph 23 of the judgment in Suleiman: Reasons at [54]. The Tribunal then stated (at [55]):

An evaluation of the factors occurs in the context of the circumstances of the individual case, and while the primary considerations may outweigh the other considerations in accordance with paragraph 8(3), other considerations can outweigh the primary consideration in the particular circumstances of the case.

28    It is tolerably clear that the reference to paragraph 8(3) was intended to be a reference to paragraph 8(4) of Direction no. 79 and that the reference to primary consideration was intended to be a reference to primary considerations (plural). Save for those typographical errors, no complaint could be made about that statement of principle by the Tribunal. Most importantly, it is clear that the Tribunal appreciated that the general effect of paragraph 8(4) of Direction no. 79 was that “other considerations can outweigh the primary consideration[s] in the particular circumstances of the case”.

29    The Tribunal gave thorough and detailed consideration to the facts and evidence relating to the relevant primary and other considerations.

30    The Tribunal made the following findings in relation to the primary considerations.

31    The protection of the Australian community weighed “heavily” in favour of not revoking the cancellation of Mr G’s visa: Reasons at [162].

32    The interests of minor children in Australia with whom Mr G had relevant relationships weighed “heavily” in favour of revoking the cancellation of Mr G’s visa: Reasons at [231].

33    The expectations of the Australian community (as explained in paragraph 13.3(1) of Direction no. 79) weighed “considerably” in favour of not revoking the cancellation of Mr G’s visa: Reasons at [237].

34    As for the “other considerations”, the Tribunal made the following findings.

35    The strength, nature and duration of Mr G’s ties to Australia weighed “strongly” in favour of revoking the cancellation of Mr G’s visa: Reasons at [288].

36    Mr G would face minor impediments in re-establishing himself in New Zealand and accordingly that factor should be given only “slight weight” in favour of revoking the cancellation of Mr G’s visa: Reasons at [304].

37    Mr G did not dispute or criticise any of the Tribunal’s findings in relation to the relevant considerations or the weight the Tribunal ascribed to them. Mr G’s only complaint concerned the Tribunal’s weighing up or balancing of the relevant considerations. He did not contend that the conclusion reached by the Tribunal was unreasonable, in a legal sense, or was not open to the Tribunal having regard to the evidence and submissions. Rather, his argument was that the one sentence in the Tribunal’s Reasons revealed that the Tribunal either did not understand or misapplied paragraph 8 of Direction no. 79. That sentence is in the penultimate paragraph, however the concluding paragraphs in their entirety should be set out:

305.    Of the primary considerations, the protection of the Australian community weighs heavily in favour of not revoking the cancellation of FHHM’s visa, and the expectations of the Australian community weigh considerably in favour of not revoking the cancellation. The best interests of the children weigh heavily in favour of revoking the cancellations of the visa.

306.    Of the other considerations, the strength nature and duration of FHHM’s ties weighs heavily in favour of revoking the cancellation of FHHM’s visa and the extent of impediments if removed weighs slightly in favour of revoking the cancellation of his visa.

307.    Primary considerations should generally be given greater weight than the other considerations (cl.8(3)). In accordance with Suleiman, to give greater weight to one primary consideration, or to treat one or more of the other considerations as a primary consideration, it will be outside of the circumstances that generally apply. The Tribunal does not consider the circumstances of this case as outside those that generally apply (emphasis added).

308.    The Tribunal considers the two primary considerations of protection of the community and the expectations of the community outweigh the best interests of the children, the strength, nature and duration of FHHM’s ties to Australia and any impediments he will face re-establishing himself in New Zealand. This means the decision not to revoke the mandatory cancellation of his visa is affirmed.

38    The impugned sentence is italicised. While it is awkwardly expressed, it is tolerably clear that it is drawn from the last sentence of paragraph 23 of the judgment in Suleiman.

A JURISDICTIONAL ERROR?

39    Mr G’s sole ground of review was that the Tribunal made a jurisdictional error by “failing to complete its statutory task in accordance with s 499 of the [Act] and [Direction no. 79], in that it mistakenly considered at [307] that the circumstances of the case had to be outside those that generally apply in order for it to give greater weight to one primary consideration, or to treat one or more of the other considerations as a primary consideration, and thereby be satisfied that there was another reason to revoke the cancellation of [his] visa”.

40    Mr G contended that the Tribunal’s mistake was to apply the reasoning in Suleiman to the weighing exercise in circumstances where it did not apply. In Mr G’s submission, the reasoning in Suleiman only applied in circumstances where the issue was whether the relevant “other considerations” outweighed the primary considerations. Only in those circumstances is it necessary to establish that the circumstances of the case are outside the circumstances that generally apply. In Mr G’s case, however, a primary consideration, the best interests of minor children, weighed in favour of revocation. Mr G’s submission was that, in those circumstances, paragraph 8(5) applied and a primary consideration (in Mr G’s case, the best interests of minor children) could outweigh the other primary considerations even if his case was not outside the circumstances that generally apply. The Tribunal, however, proceeded on the basis that it could not give greater weight to the best interests of minor children, being the one primary consideration that weighed in favour of revocation, because the circumstances of Mr G’s case were not “outside those that generally apply”: Reasons at [307].

41    For his part, the Minister accepted that paragraph 8(4) of Direction no. 79 should be read conformably with the reasoning in Suleiman and accepted that non-compliance with Direction no. 79 may constitute jurisdictional error: see Uelese v Minister for Immigration and Border Protection (2015) 256 CLR 203; [2015] HCA 15 at [64]. Uelese concerned an even earlier version of Direction no. 79 (Direction no. 55), though it has recently been held that the same applies to non-compliance with Direction no. 79: see RGKY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 750 at [56].

42    The Minister submitted, however, that the impugned sentence of the Tribunal’s reasons should not be read as Mr G would have it; that is, as suggesting that the Tribunal could not give greater weight to the best interests of minor children, a primary consideration, unless satisfied that the circumstances were outside those that generally apply. The Minister submitted that that would be a “curious” construction of the Tribunal’s reasons given that the reasoning in Suleiman said nothing about paragraph 8(5) of Direction no. 79 and the Tribunal had earlier in its reasons accurately set out paragraph 8(5) and the effect of the reasoning in Suleiman in relation to paragraph 8(4).

43    The Minister valiantly tried to give some inoffensive or unobjectionable meaning to the impugned sentence in the Tribunal’s reasons. He contended that the sentence was not about weighing one primary consideration against other primary considerations, but rather was about weighing one primary considerations against other considerations. It was suggested, in that regard, that the Tribunal was saying that the circumstances of the case would have to be outside the circumstances that ordinarily apply before one primary consideration (relevantly here, the best interests of minor children) was to be given more weight than one or more other considerations. In the alternative, it was said that the impugned sentence was, in effect, just a slip of the pen, and that the Tribunal was saying that it would need to be outside the circumstances that ordinarily apply if one other consideration was to be given more weight than the other considerations.

44    The Minister, of course, stressed that the impugned sentence must be read in the context of the Tribunal’s reasons as a whole and that the reasons should not be read “minutely and finely with an eye keenly attuned to the perception of error”: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-271.

45    The issue is not easy to resolve.

46    On the one hand, but for the impugned sentence, and perhaps the following one, the Tribunal’s reasons are essentially faultless and unimpeachable. No complaint was or could be made concerning the findings the Tribunal made in respect of each of the relevant considerations. More significantly, the concluding paragraph of the Tribunal’s reasons would suggest that the Tribunal simply found that the two primary considerations that weighed against revocation, protection of the community and the expectations of the community, outweighed all of the primary and other considerations which weighed in favour of revocation.

47    On the other hand, it is difficult to read the impugned sentence in the Tribunal’s reasons as meaning anything other than that the Tribunal considered that it could not give greater weight to the one primary consideration which weighed in favour of revocation, the best interests of minor children, unless the circumstances were other than those that generally apply. The Minister’s attempts to provide another interpretation of the impugned sentence are strained and unpersuasive and the attempted rectification of the sentence is speculative. That is so even when that sentence is read in the context of the reasons as a whole, and even when the sentence is read in a beneficial and not overzealous way. It is tolerably clear that the Tribunal was attempting to give effect to what it perceived to be the effect of what was said in Suleiman in respect of paragraph 8(4) of Direction no. 79 and that that attempt went awry.

48    As discussed earlier, it is somewhat doubtful that the weighing of the relevant considerations should be approached by conducting an inquiry into whether the circumstances of the case are “outside those that generally apply”. That is to overcomplicate the direction in paragraph 8(4) of Direction no. 79. But even if it be accepted that paragraph 8(4) of Direction no. 79 means that one or more of the other considerations which weigh in favour of revocation can only be given greater weight than primary considerations if the circumstances of the case are outside the circumstances that generally apply, that principle or proposition does not apply when it comes to considering whether one primary consideration can be give greater weight than other primary considerations. Under paragraph 8(5) of Direction no. 79, a primary consideration, such as the best interests of minor children, can outweigh other primary considerations, even if the circumstances of the case are not outside those that generally apply.

49    It is difficult to avoid the conclusion that the Tribunal appeared to consider that it was somehow constrained in weighing up or balancing the relevant considerations in a way which was not in fact justified or mandated by paragraph 8 of Direction no. 79. The Tribunal accepted that the best interests of minor children in Australia with whom Mr G had a relationship weighed heavily in favour of revoking the visa cancellation. So too did at least one of the other considerations. The Tribunal appears, however, to have proceeded on the basis that those considerations could not outweigh the primary considerations relating to the protection of the Australian community and the expectations of the Australian community, both of which weighed against revocation, unless the circumstances of Mr G’s case were outside of those that generally apply. The Tribunal erred in approaching the balancing exercise in that way. It was erroneous, in the circumstances, to approach the exercise by considering whether the circumstances of Mr G’s case were outside the circumstances that generally apply, whatever that may mean. It would have been open to the Tribunal to conclude that the consideration relating to the best interests of minor children outweighed all other considerations, even if it did not consider that the circumstances were outside those that generally apply.

50    While a failure to comply with Direction no. 79, or an error arising from a misunderstanding or misconstruction of Direction no. 79, can undoubtedly constitute or involve jurisdictional error, such a failure or error does not necessarily constitute or involve jurisdictional error. It will only constitute or involve jurisdictional error if the failure or error can be said to be material, in the sense that compliance or a proper application of the direction could, not would, realistically have resulted in a different decision: Hossain v Minister for Immigration and Border Protection (2019) 264 CLR 123; [2018] HCA 34 at [31]; Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3 at [45]. Materiality, in that regard, is a “question of fact in respect of which an applicant bears the onus of proof”: SZMTA at [46]; MZAPC v Minister for Immigration and Border Protection [2021] HCA 17 at [39].

51    The task of determining whether non-compliance or an error in decision making was material in the relevant sense is not always easy. In approaching that task, it is necessary to consider how the Tribunal’s decision was in fact made: SZMTA at [50]; MZAPC at [38]. There may, however, be some “element of reconstruction involved”, as it is necessary to assess what the Tribunal may have decided if the non-compliance or error had not occurred: Chamoun v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 276 FCR 75; [2020] FCAFC 66 at [70]. In a case such as this, however, the better approach is to evaluate whether or not the relevant non-compliance or error was of “such marginal significance to the issues that it could not realistically have affected the result”: XJLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 619 at [105].

52    The issue of materiality is again not easy to resolve. Neither Mr G nor the Minister advanced any real submissions in relation to the issue.

53    I am ultimately not satisfied that Mr G has discharged his onus of establishing that the Tribunal’s error in applying paragraph 8 of Direction no. 79, or approaching the weighing or balancing exercise, was material. I am not persuaded that compliance or a proper application of Direction no. 79 could realistically have resulted in a different decision.

54    When the Tribunal’s reasons are read as a whole, it is difficult to accept that the Tribunal might have reached a different conclusion in respect of the weighing or balancing exercise if it had not considered the issue in terms of whether or not the circumstances of Mr G’s case were outside those that generally apply. That conclusion is fortified by the terms of the concluding paragraph of the reasons, in which the Tribunal unequivocally states that in its view the two primary considerations of protection of the community and the expectations of the community, which “heavily” and “considerably” militated against revocation of the visa cancellation, outweighed all of the other considerations which weighed in favour of revocation. When regard is had to the Tribunal’s earlier reasoning in respect of each of those considerations, it can readily be seen how the Tribunal reached that conclusion.

55    Equally, when read in the context of the Tribunal’s reasons as a whole, the fleeting but erroneous reference, in the penultimate paragraph, to Suleiman and the question of whether Mr G’s circumstances were outside those that generally apply, can readily be seen to be of such marginal significance that it could not realistically have affected the result. There are no other indications in the Tribunal’s reasons that it approached the weighing or balancing exercise by inquiring into whether Mr G’s circumstances were other than those that generally apply, or that that consideration really played any role or had any material effect on the conclusion reached by the Tribunal.

CONCLUSION AND DISPOSITION

56    It may be accepted that the Tribunal erred in its approach to or application of paragraph 8 of Direction no. 79 or the weighing exercise generally. It appeared to approach the weighing or balancing exercise on the basis that it could only give greater weight to one primary consideration, the best interests of minor children, if Mr G’s circumstances were outside of the circumstances that generally apply. The Tribunal was not, however, so constrained. To the extent that the observations in Suleiman concerning the operation or application of paragraph 8 of Direction no. 79 have any real merit, which is somewhat doubtful, they did not in any event apply in the circumstances of Mr G’s case.

57    Mr G has not, however, discharged his onus of demonstrating that the error made by the Tribunal was material, in the sense that the Tribunal could realistically have reached a different conclusion if it had not so erred. When considered in the context of the Tribunal’s reasons and conclusions as a whole, the error was of such marginal significance that it could not be said that, absent the error, a different result was a realistic possibility. The Tribunal’s fleeting reference, in the penultimate paragraph of its reasons, to the principle supposedly derived from Suleiman, does not appear to have actually affected the way it approached the weighing up of all the relevant considerations, at least in any material way. Rather, the Tribunal simply found that the considerations which weighed against revocation outweighed those that weighed in favour of revocation. I am not persuaded that that there may have been a different result if the Tribunal had not erroneously applied the principle in Suleiman to the circumstances of Mr G’s case.

58    It follows that Mr G’s application should be dismissed. Costs should follow the event.

Associate:

Dated:    20 July 2021