Federal Court of Australia

MXDK v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1142

ORDERS

THE COURT ORDERS THAT:

1.    The application is dismissed.

2.    The applicant is to pay the costs of the first respondent, to be agreed or assessed.

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

REASONS FOR JUDGMENT

ABRAHAM J

1    The applicant, who was born in New Zealand, arrived in Australia in 2002 as a five year old child, and has lived in Australia ever since. On 11 January 2019, the applicant’s visa was mandatorily cancelled under s 501(3A) of the Migration Act 1958 (Cth) on the basis that the applicant did not pass the character test because he had a “substantial criminal record”, having been sentenced to a period of imprisonment of 12 months or more: ss 501(3A)(a), 501(6)(a) and 501(7)(c). The applicant was serving his sentence at Wellington Correctional Centre, after having been convicted on 9 November 2018 of assault with intent to rob in company, for which he was sentenced to a period of imprisonment of 3 years and 10 months: s 501(3A)(b).

2    The applicant made representations requesting revocation of the cancellation decision (the cancellation), which was refused by the delegate of the Minister on 6 July 2020. On 7 July 2020, the applicant applied to the Administrative Appeals Tribunal (the Tribunal) for review of the delegate’s decision. On 28 September 2020, the Tribunal affirmed the delegate’s decision: MXDK and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 3762.

3    On 15 October 2020, the applicant applied to this Court for review of the Tribunal’s decision. On 10 May 2021, the applicant filed an amended application such that the sole ground of review relied on is that the Tribunal made a jurisdictional error by denying the applicant procedural fairness and/or constructively failed to exercise its jurisdiction by failing to give proper, genuine and realistic consideration to the applicant’s representation that he would be homeless and without family support in New Zealand.

4    For the reasons below, the application is dismissed.

The Tribunal

5    The Tribunal, noting that the applicant failed to satisfy the character test, identified the key issue as being whether or not there was “another reason” under s 501CA(4)(b) why the cancellation should be revoked: at [7].

6    After reciting the relevant background at [9]-[29], including the applicant’s criminal history and the context surrounding his offending, the Tribunal then considered the matters contained in “Direction no. 79 –Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA” (Direction no. 79). In applying Direction no. 79, the Tribunal outlined the relevant principles and noted that it is required to consider, in particular, the following primary considerations; (i) the protection of the Australian community; (ii) the best interests of minor children in Australia; and (iii) the expectations of the Australian community: at [30]-[41].

7    First, the Tribunal considered the protection of the Australian community: at [42]-[56]. After recounting the circumstances of the applicant’s offending, and having regard to the relevant factors in [13.1.1(1)] of Direction no. 79, the Tribunal at [49]-[50] observed in respect to the nature and seriousness of the conduct that:

[49]    MXDK’s history of offending demonstrates that his offending has been fairly regular. It also appears to have been increasing in seriousness which is reflected both in the sentences he has received for his offending and in the nature of the offences moving as they have from property related offences to the exertion of physical violence against a woman and then later a stranger. The last offence is objectively the most serious offence especially because it was committed in company and involving kicking and punching a person on the ground. The overall offending is serious when viewed as a whole.

[50]    The offending conduct, especially so far as the domestic violence offences and the assault with intent to rob in company are concerned, is made up of very serious offences. They weigh fairly heavily in favour of not revoking the mandatory cancellation.

8    In relation to the risk to the Australian community should the applicant commit further offences or engage in other serious conduct, the Tribunal noted that it was required to consider both the nature of the harm and the likelihood of the applicant re-offending: at [51]. The nature of potential harm that individuals might suffer should the applicant re-offend included both physical and psychological harm: at [52]. The Tribunal considered a range of competing factors and found that there was a “low to medium” (but likely closer to medium) risk of recidivism: at [53]-[55].

9    The Tribunal concluded that “the protection of the Australian community is a very significant factor that weighs in favour of non-revocation of the decision to cancel MXDK’s visa”: at [56].

10    Second, the Tribunal considered the best interests of minor children in Australia: at [57]-[66]. In relation to this aspect, the Tribunal considered the interests of the applicant’s son and eight year old niece. After considering the relevant factors set out at [13.2(4)] of Direction no. 79, the Tribunal concluded at [66]:

So far as the best interests of minor children are concerned, I consider that the best interests of MXDK’s son weigh in favour of revocation, but the weight I would give to this fact is not as significant as it might otherwise be given the interruptions in the parental relationship, the relatively short period of the parental relationship and the uncertainty of the future insofar as MXDK not returning to custody. I do not think the position in relation to MXDK’s niece changes the weight I would give to this consideration in any material way. I consider that the best interests of MXDK’s son and niece carry with them weight that favours revocation, but it is nowhere near as significant as the weight to be given to protection of the Australian community. I will accord it intermediate weight in favour of revocation.

11    Third, the Tribunal considered the expectations of the Australian community: at [67]-[73]. On this aspect, the Tribunal at [72]-[73] reached the following conclusion:

[72]    I consider that the length of time MXDK has been in Australia, especially having regard to his young age and the effect that non-revocation will have on his child, partner, mother and siblings, moderates the weight that would be given to this consideration. This is principally because the Australian community would be more tolerant of his conduct in those circumstances. That tolerance is itself moderated, as I have said, by the length of time that the offending conduct has occurred over and, of course, the seriousness of that conduct.

[73]    The weight that should be given to this consideration points in favour of non-revocation, but it should only be accorded weight in the middle of the spectrum from low to high. This is because although the offending in this case is serious the Australian community would be more tolerant given the existence of the countervailing factors to which I have referred.

12    Lastly, the Tribunal considered the strength, nature and duration of the applicant’s ties to Australia (at [74]-[77]), the impact on the victims of the applicant’s offending conduct (at [78]-[80]) and the extent of any impediments that may exist for the applicant in establishing and maintaining a basic standard of living in New Zealand (at [81]-[84]). After considering, inter alia, the length of time the applicant has spent in Australia and his social ties to family and friends in Australia, the Tribunal found at [77] that this factor weighs significantly in favour of revocation. In relation to the impact on victims, the Tribunal acknowledged that there was no evidence as to this aspect other than from the applicant’s partner, which is described at [79]. The Tribunal found that this factor, noting the complexities of relationships involving domestic violence, weighs slightly in favour of revocation: at [80]. As to the extent of any impediments which the applicant might face if removed, the Tribunal’s reasoning is recited below at [48]. It is the Tribunal’s consideration of this last aspect which is the subject of the application.

13    The Tribunal concluded at [85]-[87] as follows:

[85]    I have found that the protection of the Australian community weighs significantly in favour of the non-revocation having regard especially to the seriousness of MXDK’s offending and its repeated nature as well as the moderate risk that I consider there is of MXDK reoffending. I have also found that the expectations of the Australian community favours that outcome albeit moderately so given the countervailing considerations in particular: MXDK’s long time in Australia from a young age and the interests of his minor child and his immediate family members. I have found that the best interests of MXDK’s child and of his niece weigh moderately in favour of revocation. The primary considerations in this case weigh fairly strongly in favour of non-revocation.

[86]    I have found in respect of the other considerations that the strength, nature and duration of MXDK’s ties to Australia weigh strongly in favour of revocation; that the impediments if MXDK is removed to New Zealand weighs slightly in favour of revocation; and that the impact upon Ms GH as a victim, weighs slightly in favour of revocation. The other considerations taken together weigh in favour of revocation albeit not as strongly as the primary considerations weigh in the other direction.

[87]    In any event, the Direction requires that I should generally accord greater weight to the primary considerations over the other considerations. There is no reason to depart from that general position in this case. In doing so I am compelled to the conclusion that the primary considerations outweigh the other considerations so that I am unable to find that there is another reason why the mandatory cancellation of the visa should be revoked.

Legal principles

14    The ground of review is limited, and as such the focus of this analysis is confined.

15    Section 501CA(4) of the Migration Act provides:

(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.

16    Suffice to say that because the applicant did not pass the character test, the only live issue before the Tribunal was whether there was another reason why the cancellation should be revoked: s 501CA(4)(b)(ii). In applying s 501CA(4), the Tribunal was required to comply with Direction no. 79, Pt C of which requires the decision maker to take into account primary considerations, which are the protection of the Australian community from criminal or other serious conduct, the best interests of minor children in Australia and the expectations of the Australian community.

17    The representations referred to in s 501CA(4)(a) play a central role in the relevant statutory regime. The statutory power to revoke the mandatory cancellation of a person’s visa is only enlivened if revocation has been requested and representations are made in support of that request. The making of the representations is a condition on the exercise of the statutory power. Those representations play an important role in the decision maker’s determination of whether they are satisfied that there is “another reason” why the cancellation should be revoked: GBV18 v Minister for Home Affairs [2020] FCAFC 17; (2020) 274 FCR 202 (GBV18) at [31]. Representations in response to an invitation under s 501CA(3)(b) are, viewed as a whole, a mandatory relevant consideration, but not every statement in the representations can be so described: GBV18 at [31], citing as an example, Minister for Immigration and Border Protection v BHA17 [2018] FCAFC 68; (2018) 260 FCR 523 at [139]. The decision maker is only required to consider a representation or claim which is “substantial” or “significant” and “clearly articulated”: Say v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 84 (Say) at [6]. The significance of any particular matter raised in the representations is to be assessed by reference to the manner in which the matter is expressed: GBV18 at [31].

18    To the extent that the representations are a mandatory consideration, the decision maker is obligated to consider them as a whole: Minister for Immigration and Border Protection v DRP17 [2018] FCAFC 198; (2018) 267 FCR 492; Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216; (2018) 267 FCR 643 (Maioha) at [49].

19    As to what is meant by the obligation of a decision-maker to “consider” in this context, in GBV18 referring to Minister for Home Affairs v Omar [2019] FCAFC 188; (2019) 272 FCR 589, Flick, Griffiths and Moshinsky JJ summarised the principles at [32] as follows (emphasis in the original):

Omar also provides helpful guidance on what is meant by the obligation of a decision-maker to “consider” a matter in the context of a judicial review (see at [35]-[37]). The reasons for judgment in the present case should be read as though those paragraphs were incorporated here. For convenience, the key relevant points may be summarised as follows.

(a)    Even though there is no explicit statutory duty on the Minister under s 501CA(4) to “consider” representations made in support of a revocation request, it is necessarily implicit in the statutory regime that there is such an obligation. The discharge of that obligation requires the Minister to engage in an active intellectual process with reference to those representations, consistently with the Full Court’s approach in Tickner v Chapman [1995] FCA 1726; 57 FCR 451 (see also Navoto v Minister for Home Affairs [2019] FCAFC 135 at [86]-[89] per Middleton, Moshinsky and Anderson JJ).

(b)    Importantly, each case necessarily turns on its own particular facts and circumstances as established by the evidence.

(c)    The inference drawn in Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; 252 FCR 352 was one which was arrived at notwithstanding that the Minister’s statements of reasons in the two cases there stated that he had “given full consideration to all of the information before me” and that the reasons contained numerous statements by the Minister that he had “considered”, “noted”, “accepted”, “recognised” or “had regard to” various matters in coming to his decision to cancel the visas. In the particular circumstances, these statements were not viewed as conclusive.

(d)    The decision-maker’s obligation to engage in an active intellectual process with significant and clearly expressed relevant representations made in response to an invitation under s 501CA(3)(b) is consistent with the observations of the Chief Justice in Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; 364 ALR 423 at [3] (with whom Markovic and Steward JJ agreed) (emphasis added):

By way of preliminary comment, it can be said that cases under s 501 and the question of the consequences of a failure to pass the character test not infrequently raise important questions about the exercise of Executive power. Among the reasons for this importance are the human consequences removal from Australia can bring about. Public power, the source of which is in statute, must conform to the requirements of its statutory source and to the limitations imposed by the requirement of legality. Legality in this context takes its form and shape from the terms, scope and policy of the statute and fundamental values anchored in the common law: Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 at 5 [9]; Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 357 ALR 408 at 423 [59]. The consequences of these considerations are that where decisions might have devastating consequences visited upon people, the obligation of real consideration of the circumstances of the people affected must be approached confronting what is being done to people. This obligation and the expression of its performance is not a place for decisional checklists or formulaic expression. Mechanical formulaic expression and pre-digested shorthand expressions may hide a lack of the necessary reflection upon the whole consideration of the human consequences involved. Genuine consideration of the human consequences demands honest confrontation of what is being done to people. Such considerations do not detract from, indeed they reinforce, the recognition, in an assessment of legality, that those entrusted with such responsibility be given the freedom of lawful decision-making required by Parliament.

(e)    Giving meaningful consideration to a clearly articulated and substantial or significant representation on risk of harm independently of any claim concerning Australia’s non-refoulement obligations, may require the decision-maker to do more than simply acknowledge or note that the representations have been made. As stated at Omar at [39], depending on the nature and content of the representations, the decision-maker “may be required to make specific findings of fact, including on whether the feared harm is likely to eventuate, by reference to relevant parts of the representations in order that this important statutory decision-making process is carried out according to law”.

(f)    The failure to consider, in the relevant legal sense, a substantial or significant and clearly articulated claim raised in representations made under s 501CA(3), as giving rise to “another reason” for revoking the visa cancellation, may constitute a failure to carry out the statutory task and involve jurisdictional error.

(g)    A finding that a decision-maker has not engaged in a meaningful or active intellectual process will not lightly be made (see Carrascalao at [48]). It is important to re-emphasise that each case necessarily turns on its own particular facts and circumstances (see Omar at [36(e)]; SYLN v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1986 at [107] per Griffiths J and AIJ19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 2205 at [60] per Perry J). As each case has to be looked at with close regard to its own particular facts, circumstances and evidence, it is inappropriate to apply the relevant principles simply by reference to what has happened in other cases.

(h)    Where a decision-maker has meaningfully engaged with a relevant representation made under s 501CA(3), the Court is not entitled on judicial review to intervene merely because it disagrees with the decision-maker’s ultimate assessment that the representation is outweighed by other countervailing considerations, assuming that no other jurisdictional error is established. The limits of judicial review must constantly be observed.

20    These principles have recently been applied in DQM18 v Minister for Home Affairs [2020] FCAFC 110; (2020) 278 FCR 529 (DQM18); EVK18 v Minister for Home Affairs [2020] FCAFC 49; (2020) 274 FCR 598 and Say at [6].

21    As explained by the Full Court of this Court in Maioha at [45], the role of the reviewing court is to qualitatively assess “the reality of consideration by the decision-maker” and the question is ultimately “whether the decision-maker has as a matter of substance had regard to the representations”.

22    It is appropriate to recognise also that the reasons of an administrative decision maker 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; (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ, citing Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; (1993) 43 FCR 280 at 287.

Submissions

23    The applicant submitted that he made a clear and direct representation that if he were deported to New Zealand “we would go to New Zealand with nothing … because I have no family there, no support and we will probably be homeless”. The “we” should be read as a representation that he, his partner and minor child faced a risk of homelessness in New Zealand by reason of the lack of family support they would have on arriving in New Zealand. The applicant directed attention to relevant material in the court book which he argued supported the existence of the representation, and associated matters. In particular, the applicant referred to, inter alia, his request for revocation of the cancellation and various supporting documents that he supplied to the delegate in connection with that revocation request.

24    The applicant submitted that this represented an “asserted detriment of sufficient consequence” that the Tribunal was required to consider when determining whether it was satisfied that there was another reason why the cancellation should be revoked: citing McCutcheon v Minister for Immigration and Border Protection [2018] FCA 828 at [50]–[51] (McCutcheon) and GBV18 at [31]. The applicant submitted that the Tribunal’s reasons do not refer to the risk of homelessness, and it was not open to reach “no conclusion” about the representation: McCutcheon at [59] and [63]. The Tribunal needed to consider the representation in the context of two of the mandatory considerations from Direction no. 79, the interests of a minor child and the extent of impediments to removal.

25    It was submitted that the representation gave rise to two alternate circumstances. First, if the applicant’s family returned with him to New Zealand. In that context, the representation was relevant to the interests of the applicant’s six year old son. The Tribunal did not make a finding about the impact of his son going to New Zealand, if it eventuated that his family went with him. Given the applicant’s plans, and his wife’s openness to going to New Zealand, the Tribunal was required to consider the potential consequences of this issue. Second, if the applicant’s family stayed in Australia. In that context, the representation was relevant to the extent of impediments to removal. The reasons of the Tribunal do not engage with the representation made but consider at a generic level issues about social and language barriers, New Zealand’s system of government, and the applicant’s age and lack of medical conditions. The fact that New Zealand has “well developed social and economic systems” does not mean that New Zealand has adequate systems in place to ensure that housing is made available to new arrivals without a job or support network. Even well developed countries like Australia do not provide that level of support; at least not without significant delays. A failure to consider each of these matters was said to be a jurisdictional error.

26    The applicant submitted the error is material: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 (SZMTA) at [3] and [45]. Five reasons were provided in support of the submission on materiality. First, the Tribunal was required to take the representation into account when weighing up the considerations in Direction no. 79. The representation was relevant to two mandatory considerations and fundamental to the decision-making process. Second, several factors weighed in the applicant’s favour, including the best interests of the applicant’s son and the strength, duration and nature of the applicant’s ties to Australia. Third, a correct consideration of the applicant’s representation could have led the Tribunal to allocate a different weight to the primary considerations of the best interests of the child and the impediment to the applicant. Fourth, the weighing process is a matter for the Tribunal and not for the Court: PQSM v Minister for Home Affairs [2019] FCA 1540 at [63] and [89]; RZMW v Minister for Home Affairs [2019] FCA 1761; (2019) 168 ALD 176 at [71]–[72]. In assessing materiality, the Court should not speculate or undertake a hypothetical merits review: Nguyen v Minister for Home Affairs [2020] FCA 127 at [91]; AWU16 v Minister for Immigration and Border Protection [2020] FCA 513 at [98]. The question is whether the omitted review material could realistically have resulted in a different decision: Minister for Immigration and Border Protection v CPA16 [2019] FCAFC 40; (2019) 268 FCR 379 at [33]. Fifth, if not for its error, there is a realistic possibility that the Tribunal could have afforded less weight to those factors which weighed against the applicant, and hence the Tribunal could have reached a different decision. In relation to this fifth aspect, the applicant referred to SZIFI v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FCA 63; (2007) 238 ALR 611 at [45] and Downes v Minister for Home Affairs [2020] FCA 54; (2020) 168 ALD 498 at [81]-[82].

27    The respondent’s submissions directed attention to the applicant’s representation and the context in which it was made before the Tribunal. In the request for revocation, the applicant noted that if he were to be deported then “we would go to New Zealand with nothing because I have no family there, no support and we will probably be homeless” (emphasis added by the respondent). Later in the same document, the applicant pointed out that one significant impact would be that the applicant’s partner would not be able to cope without the support of the applicant “here” (referring to Australia). The impact on the applicant’s son was described in terms of separation and the absence of the applicant in his son’s life. It was submitted that one of the reasons for revoking the cancellation was that the applicant’s partner and son would stay in Australia. In the section of the revocation request where the applicant was asked about his concerns and what would happen to him should he be returned to New Zealand, he said that it would be hard mentally because “I have no family there [New Zealand]. I don’t know if my family will come with me because I won’t be able to support them and if they do come there is a big chance we will be homeless because there’s no support”. It was submitted that this representation essentially posited a counterfactual and then speculated about it: there was a possibility that the applicant’s family might go with him in the future but it was possible that he could be homeless because there was no “support”. What was involved in having the requisite support was not identified.

28    The respondent also referred to the applicant’s partner, who gave a written statement which largely focused on the difficulties of being separated from the applicant. She said she would be confronted by a difficult choice between staying in Australia with her family or relocating to “New Zealand with my son so my family stays together”. A further supporting statement was provided, with the sole emphasis on the difficulties that would arise from separation. The reference to the applicant’s lack of family or support in New Zealand was repeated.

29    The respondent noted that in the applicant’s Statement of Facts, Issues and Contentions (SFIC), filed in the Tribunal, no mention was made of the risk that the applicant may become homeless if he were to be returned to New Zealand. The SFIC did identify the difficulty that the applicant would have in establishing himself in New Zealand due to the lack of family or friends to provide emotional support. That lack of emotional connection emphasised the lack of family or support in contrast to the position that the applicant enjoyed in Australia. That claim was also reinforced by the applicant’s evidence in his written supporting statement, which included, inter alia, a statement that “I would also be homeless and be unemployed as my family does not live in New Zealand. I do not think I will be able to emotionally handle being deported to New Zealand”. In respect of his son, the SFIC focused exclusively on the emotional damage that the son would suffer were he to be separated from his father.

30    The respondent also acknowledged that in its SFIC it accepted that the applicant would face some hardship. It was submitted that it may be inferred that this was a response to the totality of the applicant’s claim about any difficulties in New Zealand. In that regard, the respondent submitted that the applicant was likely to be able to establish himself given his age, good health, lack of language or cultural barriers, transferrable skills and access to health services, social welfare and education.

31    The respondent referred to two aspects of the Tribunal’s reasons. First, the Tribunal gave detailed consideration to the best interests of the applicant’s son (at [57]-[67]), with the reasons being nuanced and covering a range of matters based on the proposition that the applicant and his son would be separated. Second, the Tribunal accepted the applicant's submission about the barriers with which he would be confronted and the respondent’s submission about the mitigating effects of the levels of support available in New Zealand including “well developed social and economic systems” (at [82]), which was elaborated on including by reference to his ability to maintain contact with his family and friends. The Tribunal noted that “there is no doubt that he will have some difficulty, emotional and otherwise, re-establishing himself” (at [83]).

32    The respondent submitted that the applicant’s case rests on a single representation: that the applicant would be at risk of being homeless in New Zealand. The respondent took issue with the applicant’s contention that the Tribunal had to address both the scenario that the applicant could return to New Zealand on his own and face that risk of homelessness, or he could return to New Zealand with his family and confront the same risk.

33    It was submitted that apart from one brief reference to a suggestion that the applicant and his family would travel together to New Zealand, the whole tenor and thrust of the applicant’s representations before the Tribunal was: (a) the position as to whether the applicant’s partner and son might in future relocate to New Zealand was fundamentally uncertain and essentially speculative; and (b) a major plank of his case was the hardship that he would experience as a result of being separated from his partner and son (in other words, it was reliant on the assertion that the applicant would be separated from his immediate family).

34    The respondent submitted that in respect of the risk to the applicant of homelessness, the claim was essentially asserted, without any further detail save for the unexplained connection to his lack of family support. It was submitted that the Tribunal was in a position to accept, without further enquiry, that the social and economic support systems in New Zealand were similar to those of Australia, referring to McLachlan v Assistant Minister for Immigration and Border Protection [2018] FCA 109 (McLachlan) and Viane v Minister for Immigration and Border Protection [2018] FCAFC 116; (2018) 263 FCR 531 (Viane). Further, the Tribunal was not under any obligation to round out or develop the applicant’s own case, in particular by making further enquiries about the exact ways in which the social and economic support systems in New Zealand might work. The respondent submitted that put simply: the applicant made a bare representation that he would be at risk of being homeless (without more) and the Tribunal answered that representation by finding that the applicant may face some initial difficulties but that the well-developed economic and social systems in New Zealand were sufficient to meet these risks. Given the nature of the representations made, the Tribunal did not need to say more.

35    It was submitted that the applicant did not squarely advance a claim that he would return to New Zealand with his family if the cancellation were not revoked; it was a supposition about the possibility that the applicant’s family might decide to relocate to New Zealand in the future. That supposition cut across the rest of the applicant’s case but, in any event, it could not be realistically assessed given its inchoate manifestation in the applicant’s representations. The Tribunal turned its mind to the existence of that possibility and recognised that the applicant's partner would face the difficult decision as to whether she would move to New Zealand even though it was a choice she had not yet made (at [79]). In this way, it was the “prospect that [she] will necessarily have to confront [this] decision” that the Tribunal acknowledged as a potential impact on the applicant’s partner. The choice was one which may eventuate at some point in the future but it did not arise for consideration at the time. The Tribunal was not obliged to seek further information on this point or come to a conclusion on what the applicant’s (or his partner’s) future intentions might be.

36    In its submissions in respect to materiality, the respondent drew attention to a particular matter. It is said that the Tribunal had to grapple with what would happen to the applicant’s family in the event that they travelled with the applicant to New Zealand, but the heart of the applicant’s case was that he would suffer great emotional distress and hardship on the basis that he would no longer be in Australia (i.e with his immediate family). It was inevitable that if the posited counterfactual were considered, it would have essentially removed most of the reasons the applicant relied on to justify revocation. In those circumstances, it is difficult to see how the Tribunal’s conclusion, or its weighing of the factors in respect of its conclusion, could realistically have been different. The applicant’s case required the Tribunal to embrace a counterfactual but the counterfactual had the effect of diminishing the other factors that had otherwise been applied in the applicant’s favour.

Consideration

37    The dispute between the parties concerns the application of the relevant legal principles to the circumstances of this case.

38    The respondent’s submissions are to be accepted.

39    It is important to recall at the outset that although the applicant referred, in particular in his written submission, to various authorities, including McCutcheon, Viane, HWLJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1039 (HWLJ), DQM18 and Swannick v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 165; (2018) 280 FCR 559 (Swannick), these are examples of the application of the principles to the particular facts of those cases. Although these decisions provide guidance on the legal principles and the application thereof, it is clear from the nature of this ground of review, each case must necessarily turn on its own particular facts and circumstances: GBV18 at [32(b)]; HWLJ at [70]. The applicant also referred in oral submissions, inter alia, to GBV18 and Swannick in relation to relevant principles, which as observed above, are not in dispute.

40    The extent of the material before the Tribunal in respect to the representations is not in dispute (although the significance attached to them is) and is accurately summarised by the parties.

41    It is appropriate to recite the applicant’s particular representation to the delegate. In response to the question contained in his personal circumstances form, “Do you have any concerns or fears about what would happen to you if you were to return to your country of citizenship?”, he wrote in describing his concerns:

If I go back it will be very hard mentally because I have no family there. I don’t know if my family will come with me because I won’t be able to support them and if they do come there is a big chance we will be homeless because there’s no support.

42    For completeness, I also note the applicant’s statement before the Tribunal that “I would also be homeless and be unemployed as my family does not live in New Zealand. I do not think I will be able to emotionally handle being deported to New Zealand”. There is no reference in the statement to the possibility of homelessness of his family.

43    It is necessary to address the two alternative scenarios separately.

44    As to the scenario concerning the applicant’s family staying in Australia, the applicant’s core contention is that he made representations about being homeless if he was sent to New Zealand because of his lack of employment prospects and family support and the Court can infer that the Tribunal did not consider that representation.

45    The applicant relies on a bare representation that he would be at risk of being homeless if returned to New Zealand. The representation is directed to the possible consequences if the applicant is returned to New Zealand. It is a fear that the applicant holds. There is no further elucidation provided in relation to that representation, apart from the explanation that he would face difficulty re-establishing himself due to the lack of family and friends to provide emotional support. The character of the submission made was wholly in the knowledge of the applicant. I note in the applicant’s SFIC there is no reference to the possibility of homelessness, with the submission regarding impediments including reference to his statement which focused on the lack of family and emotional support. Although, in the applicant’s statement attached to the SFIC, there is reference to the applicant saying he would be homeless and unemployed as his family does not live in New Zealand, this is consistent with the earlier references which are focused on the lack of family and emotional support. The risk of homelessness was not central or prominent to the manner in which the applicant’s case was advanced before the Tribunal.

46    As previously observed, the significance of any particular matter raised in the representations is to be assessed by reference to the manner in which the matter is expressed: GBV18 at [31(d)]. In AXT19 v Minister for Home Affairs [2020] FCAFC 32 (AXT19) at [56], the Court recognised that “[t]he greater the degree of clarity in which a claim has been made and advanced for consideration, the greater may be the need for the Tribunal to consider the claim in clear terms. Conversely, the more obscure and less certain a claim is said to have been made, the less may be the need for the Tribunal to consider the claim”. A claim that is advanced summarily or in general terms may not warrant anything more than general or summary consideration: see for example AXT19 at [57].

47    In respect to this basis of review, the representation was said to be relevant to impediments of the applicant’s removal. The Tribunal had the applicant’s statement and the delegate’s reasons (which refer to homelessness in this context). Given the manner in which the representation was made, and the Tribunal’s reasons, the applicant has not established that the inference to be drawn is that the representation was not considered. Rather, given the manner in which the case was advanced before the Tribunal, with the emphasis on the lack of support and emotional difficulties which was at the base of the possibility of homelessness, the inference is that the Tribunal from the reasons properly read, was aware of the claim and took it into account.

48    The Tribunal made findings at [81]-[84] as follows:

[81]    I am required to consider the extent of any impediments that exist for a non-citizen in establishing and maintaining a basic living standard if removed from Australia. I am required to consider age, health, language and cultural barriers and social, medical and economic supports that may be available.

[82]    There is no language, cultural, social or economic barriers that obviously confront MXDK if he is returned to New Zealand. New Zealand is a liberal democratic developed country with advanced and well developed social and economic systems.

[83]    MXDK is a relatively young man. There was no evidence that he suffers from any medical condition that would affect his establishing himself in New Zealand. He will have some capacity to remain in contact with many of his family and friends in Australia by telephone and other means. This will ameliorate although not eliminate many of the difficulties he will, at least in the immediate term, be required to meet. There is no doubt that he will have some difficulty, emotional and otherwise, re-establishing himself in New Zealand. There is some prospect because of his plans to relocate Ms GH and his child that this will not be as hard for him as it might otherwise be.

[84]    This consideration weighs in favour of revocation although not significantly so.

49    The passage refers to impediments the applicant might face if returned to New Zealand. Here, the Tribunal recognises there will be some difficulties, emotional and otherwise, in the applicant re-establishing himself.

50    The applicant’s submission that the Tribunal’s conclusions at [81]-[84] are of a general nature and do not address in particular the applicant’s fear of homelessness, thereby constituting a jurisdictional error, cannot be accepted. I do not accept the applicant’s submission that the inference to be drawn from the reasons is that the Tribunal was not aware of, and has not taken into account, the applicant’s fear of the possibility of homelessness.

51    As the respondent correctly submitted, the Tribunal was entitled to conclude, without any further enquiry or specific evidence, that the social and economic support systems in New Zealand were similar to those of Australia: see for example, McLachlan at [37]; Uelese v Minister for Immigration and Border Protection [2016] FCA 348; (2016) 248 FCR 296 at [69].

52    Moreover, in Maioha, Rares and Robertson JJ at [48] observed:

It should again be emphasised that the issue for the Minister was whether he was satisfied that there was another reason why the original decision to cancel the visa should be revoked. It was for the respondent to put before the Minister by way of representation what it was she wished the Minister to take into account. The Minister had no legal duty, referable to jurisdictional error, to ask for further representations from the respondent or to make inquiries into the representations she had made. In the present case, in our opinion, the Minister was not required to give more extensive consideration to the representations put, such as investigating and making further findings, in particular findings as to how the respondent “would be able to manage those practical changes” as the primary judge appears to have held at [34]. The Minister found that there would be hardship for the respondent but that it would not be insurmountable.

53    Given the general nature of the representation, the Tribunal was not obliged to make further inquiries and investigate the applicant’s representation as to how he, or the New Zealand systems, would address his situation.

54    In Maioha, their Honours concluded at [50]:

It follows, in our opinion, that the Minister did not make a jurisdictional error by failing to make a finding, beyond those he made, that the respondent would suffer hardship that would “not be insurmountable in light of New Zealand’s similar culture, language and health system standards”, which addressed in greater detail the respondent’s representation that she would have nowhere to live and no money if returned to New Zealand. It was for the respondent to satisfy the Minister that her prospective hardship was another reason why the original decision should be revoked. The Minister was not legally required to analyse the representation in order to negate it, the Minister not having been satisfied by what the respondent asserted. It was also not necessary for the Minister’s conclusion that the hardship that the respondent may suffer “will not be insurmountable” to be supported by probative material outside what the respondent had put by way of representation.

55    Those observations are apt in this case.

56    I do not accept the applicant’s submission that the Tribunal did not engage with his submission, that he would not have family support. Contrary to the applicant’s submission, the Tribunal’s reference at [82] to the support systems available in New Zealand which he could access is relevant to a consideration of that submission. Moreover, the reasons reflect that the Tribunal has considered the family support available to the applicant in New Zealand and observed, inter alia, that he will have some capacity to remain in contact with them, recognising that it will ameliorate, although not eliminate, many of the difficulties he would face, at least in the immediate term.

57    As to the alternate scenario concerning the applicant’s family returning with him to New Zealand, a real issue arises as to the factual basis of the purported representation. This representation was said to be relevant to the best interests of the applicant’s child. The whole crux of the applicant’s claim to establish there is some other reason to revoke the cancellation was the effect of removal on him and his family and the impact of being apart from his family and child. This submission is the counterfactual to that claim. At its highest, it appears to rely on a possibility that sometime in the future the applicant’s family might decide to relocate to New Zealand and if the family moved there is a risk they may be homeless because there is no support. Again, there is no further detail advanced as to why there is a risk that the applicant and his family would be homeless. The Tribunal does refer at [83] to the possibility of the applicant’s family moving to New Zealand. I note this is in the context where the only basis the applicant advanced for his fear of homelessness is the lack of support from family and friends. The Tribunal also recognised at [79] in considering the impact on the applicant’s partner, that if the applicant were to be deported, she would face a difficult choice as to whether to go to New Zealand or remain in Australia. A choice, the Tribunal recognised, the applicant’s partner had not yet made. That was the evidence of the applicant’s partner in respect to those matters. The Tribunal took into account the impact of that choice on the applicant when considering the impediments of his removal and the impact of that choice on the applicant’s partner and son.

58    The Tribunal considered the best interests of the minor child based on the case advanced by the applicant, concluding, inter alia, that “there is no doubt that restricting the relationship between [the applicant] and his son in that way [referring to their physical separation] would be inimical to the best interests of the child”: at [64]. This factor weighed in favour of revocation, and was given a moderate or intermediate weight (when considering his son and his niece). The applicant’s submission cuts across that conclusion.

59    The extent and generality of the applicant’s statement which underpins this scenario, and the scantness of its content, is described above at [41]. In addition, this scenario is based on at least two speculative possibilities, with the first being the possibility of the applicant’s family moving to New Zealand, and then if that occurs, the possibility the family will be homeless. This submission is contrary to the applicant’s core submission that he will be separated from his family and the impact that would have on him and his son. It is also contrary to the manner in which the applicant’s case was advanced before the Tribunal. As noted above at [57], the first possibility in the scenario was addressed.

60    The second possibility, regarding the risk that the applicant’s family and his child would be homeless, is a general speculative assertion. The applicant’s SFIC makes no reference to this possibility. There is also no reference to this in his statement before the Tribunal. In the circumstances, it was not necessary for the Tribunal to investigate the possible consequences of the possibility that the applicant’s family would move to New Zealand and the basis thereof: cf Maioha at [50]. In that context, the submission regarding the best interests of the child, which on this review is said to be the relevant consideration, is detailed and is based on the consequences of the applicant being separated from his child, the submission advanced by the applicant. In the circumstances, it was not a submission of sufficient significance or substance such that it was required to be addressed by the Tribunal.

61    The applicant has not established that the Tribunal fell into error by failing to consider this scenario.

62    I note in any event, even if the applicant had established an error, in my view the applicant has not established it is material such as to obtain relief. That involves the applicant establishing that there is a realistic possibility that the decision in fact made could have been different had the error not occurred. That is a question of fact: SZMTA at [4] and [45]-[47]; MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 95 ALJR 441 (MZAPC) at [1]-[4] and [38]-[39]. The onus of proving, by admissible evidence on the balance of probabilities, facts necessary to satisfy the court that the decision could realistically have been different had the breach not occurred, lies on the applicant: MZAPC at [39] and [60].

63    Given the general nature of the submission as to the scenario of the family remaining in Australia, and the Tribunal’s conclusions in respect to the impediments faced by the applicant and the other considerations, the applicant has not established there is a realistic possibility the decision could have been different. The representation as to the applicant’s fear of the risk of homelessness was not a prominent aspect of his case. The only basis advanced by him for this fear was the lack of support of family and friends, a matter which was addressed by the Tribunal. The applicant has not established, contrary to his submission, that even if there is an error, it is possible the Tribunal having considered this risk might have attributed different weight to the various primary considerations, such that there is a realistic possibility the Tribunal may have reached a different result.

64    As to the scenario that the family went to New Zealand, as the respondent correctly submitted, this is not a case where a fact or claim was not considered, but a counterfactual inquiry. The counterfactual is general, speculative, and is dependent on the possibility of what a possibility could lead to. Moreover, if the counterfactual situation was considered, most of the reasons put forward by the applicant to justify revocation would be nugatory. For example, it would cut across, inter alia, the findings made in his favour in relation to the best interests of the child. In those circumstances, and given the findings of the Tribunal in relation to those and other considerations, the applicant has not established there is a realistic possibility the decision could have been different had the error not occurred.

65    Finally, I note that given the nature of the representations in the context of the Tribunal’s reasons and conclusions in respect to the Direction no. 79 considerations, even if error is established, the applicant has also failed to establish, considering the representations together, there is a realistic possibility the decision could have been different.

Conclusion

66    For the reasons above, the application is dismissed with costs.

Associate:

Dated:    23 September 2021