Federal Court of Australia

Au v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1240

ORDERS

THE COURT ORDERS THAT:

1.    The application for review is dismissed with costs.

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

REASONS FOR JUDGMENT

CHEESEMAN J:

Introduction

1    The applicant, Salafai Tauapai Au, seeks judicial review pursuant to s 476A(1)(b) of the Migration Act 1958 (Cth) of a decision of the second respondent, the Administrative Appeals Tribunal, made on 2 March 2021: Au v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 372. In that decision the Tribunal affirmed a decision of a delegate of the first respondent, the Minister, under s 501CA(4) of the Act not to revoke the mandatory cancellation of the applicant’s visa.

2    The Court’s jurisdiction to review the decision of the Tribunal is the same as the jurisdiction of the High Court pursuant to s 75(v) of the Constitution: s 476A(2). The relief sought by the applicant is an order quashing the decision of the Tribunal and a writ of mandamus remitting the matter to the Tribunal for determination according to law.

3    The applicant relies on a further amended originating application filed on 13 July 2021. Review of the Tribunal’s decision is sought on six broad-ranging grounds which variously allege that the Tribunal fell into jurisdictional error by: failing to consider a mandatory consideration; failing to genuinely consider the human consequences of the applicant’s permanent exclusion from Australia; alternatively, failing to engage in genuine consideration of a significant and clearly expressed argument raised by the applicant; failing to consider the appropriate weight to be given to ‘other considerations’ set out in the relevant Ministerial Direction; engaging in legal illogicality or irrationality; and finally by fundamentally misunderstanding the nature of the statutory task it was required to perform.

4    For the reasons that follow, the application is dismissed with costs.

Background

5    The applicant is a citizen of New Zealand. He was born on 5 July 1983 and moved to Australia in about 1999 or 2000 at the age of 16. The applicant held a class TY subclass 444 special category (temporary) visa which was cancelled by the Minister on 12 May 2020 pursuant to s 501(3A) of the Act when he failed the character test.

6    Section 501(3A) of the Act requires the Minister to cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the character test because, relevantly, the person has a substantial criminal record: ss 501(6) and 501(7). Section 501(7)(c) provides that a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.

7    Following convictions in April 2020 for a series of offences which attracted a range of sentences to be served concurrently, the longest of which was six months, the applicant was convicted of further offences which attracted sentences of 12 months each, to be served concurrently. The applicant’s convictions were for various offences involving possession of drugs or drug utensils, unlawful use of a motor vehicle, failing to appear before authorities in accordance with an undertaking and breach of bail conditions. The applicant’s criminal history did not involve violent offending.

8    Upon his visa being cancelled, the applicant was invited to make representations as to revocation of the decision, which he did, but the delegate decided not to revoke the visa cancellation. The applicant applied to the Tribunal for review of that decision.

9    The applicant was represented in his dealings with the Department of Immigration and Border Protection but he represented himself at the hearing before the Tribunal.

10    The Tribunal’s decision was delivered orally on 2 March 2021, the last day of the 84 day time limit in s 500(6L) of the Act. The Tribunal was subsequently asked for, and, on 4 March 2021, delivered written reasons, which it noted comprised the reasons it had delivered orally with minor edits only.

Relevant legislation

11    The applicant seeks review of the Tribunal’s decision pursuant to s 476A(1)(b). By s 500(1)(ba) of the Act, the Tribunal is authorised to review decisions of a delegate of the Minister under s 501CA(4) not to revoke a decision to cancel a visa.

12    The decision in issue was made under s 501CA(4) of the Act which relevantly 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.

13    Pursuant to s 499(2A) of the Act, the Tribunal was required to comply with Ministerial Direction 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s 501CA dated 20 December 2018, the relevant ministerial direction in place at the time. Part C of Direction 79 is directly addressed to “the considerations relevant to former visa holders in determining whether to exercise the discretion to revoke the mandatory cancellation of a non-citizen’s visa”: Direction 79, para 5.

The Tribunal’s decision

14    In light of the breadth of the grounds of review and the significance of materiality to the outcome of this review, I have set out the Tribunal’s reasons for its decision in some detail.

15    The Tribunal began by recognising that the application before it was for review of the refusal by a delegate of the Minister to reinstate the applicant’s visa in his or her discretion, in circumstances where the applicant’s visa had been mandatorily cancelled under s 501(3A) of the Act. The Tribunal described its task in the following terms (at [4]):

My task is to re-exercise the delegate’s discretion afresh. Hearing the matter on the evidence adduced before me, I must decide whether to set aside the decision under review or affirm it. I have conducted what is known as a de novo hearing of the merits. This type of hearing implies that in re-exercising the discretion afresh, I may set aside the decision under review notwithstanding the absence of any discernible error in the delegate’s reasons if this is the correct or preferable decision on the evidence before me. Equally, I may affirm the decision if that is [the] correct or preferable decision on the evidence before me notwithstanding the presence of an error in the delegate’s reasons.

16    The Tribunal then stated its conclusion which was to affirm the decision under review before summarising the relevant background facts and its reasons for its conclusion.

17    The Tribunal set out the background facts including the applicant’s family circumstances and employment history, noting that it largely accepted the applicant’s evidence. The Tribunal then set out the history of the applicant’s criminal offending focussing on offending from 2018 onwards.

18    The next section of the Tribunal’s reasons is headed “Re-exercising the discretion”. The Tribunal quoted from LJTZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AAT 3356, a decision written by the same member who constituted the Tribunal in the present case, and which was directly concerned with the application of Part C of Direction 79 (at [30]):

30. In LJTZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 3356, I set out the background to the Direction and I repeat what I said at paragraphs [24] – [28]:

“24 I now turn to apply Direction 79. The Direction consists of a preamble and Parts A, B, C. Of these parts, Part C is relevant and it identifies the considerations that I should take into account in determining whether to exercise the discretion to revoke the mandatory cancellation of the applicant’s visa. The Preamble makes it clear that where the discretion to consider revocation is enlivened, the decision maker must consider the specific circumstances of the case.

25 The Preamble refers to the Government’s commitment to protecting the Australian community from harm as a result of criminal activity or other serious conduct by “non-citizens”. The principles listed in paragraph 6.3 are of critical importance in furthering the objective of protecting the community. They reflect community values and standards with respect to determining whether the risk “non-citizens” pose is unacceptable.

26 The principles in question record that Australia has a sovereign right to determine whether non-citizens who pose a character concern should remain in Australia. Remaining in Australia is a privilege Australia confers on non-citizens in the expectation that they will remain law-abiding and will respect important institutions such as Australia’s law-enforcement framework and will not cause or threaten harm to individuals or the Australian community. It is recorded that the Australian community expects that visas will be cancelled by the Government if non-citizens commit serious crimes in Australia. It is also recorded that non-citizens who have committed a serious crime should generally expect to forfeit the privilege of remaining in Australia. In some circumstances, criminal offending and the harm that would be caused if it were to be repeated may be so serious that any risk of similar conduct in the future is unacceptable. In these circumstances even other strong countervailing considerations may be insufficient to justify not cancelling the visa. In addition, Australia has a low tolerance of any criminal conduct by people who have been participating in the Australian community for only a short period of time.

27 In exercising the discretion, I must follow the rules and guidelines set out in Direction 79. Information and evidence from independent and authoritative sources should be given appropriate weight. Primary considerations should generally be given greater weight than other considerations.

28 I turn now to Part C which is the relevant part. There are three primary considerations mentioned in Part C that I must consider; first, protection of the Australian community from criminal or other serious conduct; secondly, the best interests of minor children in Australia; and, thirdly, the expectations of the Australian community.”

19    The Tribunal’s repeated references to the exercise of a discretion under s 501CA(4) of the Act reflect the terms in which Part C of Direction 79 is framed.

20    By way of contrast to the approach taken by the Tribunal it is useful to briefly examine the approach taken by the delegate. The delegate focussed on the express terms of s 501CA(4). The delegate addressed in sequence each of the conditions in s 501CA(4)(a) and (b). In considering whether the delegate was satisfied under s 501CA(4)(b)(ii) that there was another reason to revoke the cancellation, the delegate considered the applicant’s representations and the considerations in Direction 79, to conclude that he was not satisfied that there was not another reason to revoke. Accordingly, the delegate affirmed the visa cancellation.

21    The Tribunal’s approach was different. The Tribunal did not refer to s 501CA(4) or direct its consideration to the ascertainment of the jurisdictional facts in s 501CA(4)(a) and (b)(i) or (ii) on which exercise of the power of revocation is conditioned. Instead, the Tribunal immediately moved to consider the primary and other considerations set out in Part C of Direction 79 in the context of the applicant’s representations in order to “re-exercise the delegate’s discretion afresh”.

22    In relation to the first primary consideration, protection of the Australian community from criminal or other serious conduct, the Tribunal first had regard to the nature and seriousness of the applicant’s conduct. In doing so, it referred to the sentences received by the applicant for his criminal offending and to the imposition of 12 month imprisonment terms on the applicant as “a reasonably lengthy term and … a serious matter”. The Tribunal then considered the frequency and cumulative effect of the applicant’s offending and referred to the fact that the applicant had been involved in the unlawful taking and use of others’ vehicles on three occasions, and that he had often been found in the possession of drugs or drug utensils.

23    Next, the Tribunal considered the risk to the Australian community should the applicant commit further offences or engage in other serious conduct and did so by reference to the factors set out at paragraph 13.1.2 of Direction 79. It noted that those factors, being the nature of the risk to the Australian community and the likelihood of reoffending, were to be considered cumulatively. The Tribunal concluded that while the unlawful use of motor vehicles alone was not offending of the most serious kind, of great concern was the drug misuse background to that offending and the applicant’s ongoing difficulties with drug abuse. The Tribunal considered that the potential harm to the community if the applicant were to drive under the influence of ice and injure someone was “very serious indeed” and that, although the applicant had not been convicted of driving dangerously under the influence of a drug, his regular drug use and his propensity to use others’ vehicles when under the influence created a risk of future injury to members of the public.

24    The Tribunal referred to the applicant’s history of reoffending quite soon after being released on parole and noted that the experience of prison had not compelled the applicant to address his drug misuse. The Tribunal concluded that there was a real risk that the applicant would use ice again.

25    The Tribunal also referred to a report prepared by Lisa Zipparo, a clinical neuropsychologist, which was submitted to the Department on the applicant’s behalf by his legal representatives at the relevant time. The Tribunal noted that Ms Zipparo concluded that the applicant’s present risk of reoffending was moderate and stated that it accepted her conclusion. Immediately thereafter the Tribunal analysed Ms Zipparo’s conclusion indicating its own view and, importantly, supplementing its conclusion in respect of the risk of reoffending with its own reasons based on its own observations of the material before it. In reaching its conclusion on the risk of reoffending the Tribunal attached some significance to the applicant’s drug problem, noting that the applicant was in possession of the illicit drug MDMA while in immigration detention on 31 October 2020, a time at which the applicant was still awaiting the delegate’s decision on his revocation application. The Tribunal found that the applicant’s risk of reoffending was directly linked to his risk of further drug misuse. The Tribunal further found that the question of whether the applicant would stay away from drugs on his return to the community was very much an open question. The Tribunal concluded that, in all the circumstances, the applicant’s risk of reoffending was moderate, being neither high nor low.

26    The Tribunal next turned to consider the best interests of minor children in Australia. It accepted that the applicant genuinely wished to re-establish contact with his four children but observed that the children had another parental figure and there had been limited contact between the applicant and his three daughters in recent times and no effective contact between him and his son, born to his second partner. The Tribunal also noted that, in relation to the applicant’s daughters, the applicant would need to engage in mediation or invoke court processes to secure access to his daughters, but it did not exclude the prospect of the applicant successfully doing so.

27    In considering the interests of minor children in Australia, the Tribunal noted that the relevant children would benefit from a resumed relationship with the applicant if he could stay away from drugs. Overall, having regard to the importance of a functioning relationship between children and their biological parents and, to a lesser extent, the positive relationship the applicant had enjoyed with his sister’s children, the Tribunal concluded that this factor was one that weighed in favour of the applicant.

28    The Tribunal then considered the expectations of the Australian community. It concluded, after referring to FYBR v Minister for Home Affairs [2019] FCAFC 185; (2019) 272 FCR 454 at [75] (Charlesworth J), that this factor counted against the applicant even after taking into account as a mitigating factor, in accordance with paragraph 6.3(5) of Direction 79, the fact that the applicant had lived in Australia for most of his life.

29    The Tribunal went on to address the other considerations relevant to revocation requests, which are set out in paragraph 14(1) of Direction 79, in so far as such considerations were relevant to the applicant. The Tribunal expressly noted that the list of other considerations in paragraph 14(1) of Direction 79 was not exhaustive. Of the five listed factors the Tribunal considered that only two were relevant, namely the strength, nature and duration of ties and the extent of impediments if removed.

30    The Tribunal first addressed the extent, nature and duration of ties with Australia. The Tribunal accepted that the applicant had skills as a meat-processor and as a painter and had been employed for a considerable number of years, having a solid work history before he started to use drugs. It observed that the applicant had given assistance to teenagers who were homeless while he himself was homeless, that he had mentored an employee and helped shape him to be a diligent and law-abiding member of the community and that he had been described by an employee as a “model employer”. The Tribunal took into account several personal references but did not accept that the applicant could presently be described as a devoted family man in circumstances where he had been estranged from his first partner for several years and was separated from his second partner. The Tribunal found that the applicant had a genuine interest in remaining in Australia owing to his family ties, particularly with his sister’s family, and that these ties were very important to him and he may lose these connections if removed. The Tribunal earlier noted the applicant’s sister’s evidence that the applicant contributed financially to her household when he resided with her and her family.

31    In relation to the extent of impediments if removed, the Tribunal found that there would be considerable impediments to the applicant on his return to New Zealand as he had not lived there for a long time, had no established social circle and, given his criminal record, he would find it difficult, at least initially, to find work. Against this, the Tribunal found that the applicant had his mother and two other sisters in New Zealand with whom he is close and who, it inferred, would assist him to reintegrate into New Zealand society. Even so, the Tribunal noted that the applicant, if removed, would not have the support of his sister in Australia, with whom he is very close, in his attempt to rehabilitate. The Tribunal accepted that the applicant had a legitimate interest in maximising his chances of a successful drug rehabilitation and that he may struggle to stay away from ice if removed. The Tribunal weighed this factor in his favour.

32    The Tribunal also referred to the applicant’s evidence about his job prospects in Australia, which was current as at 20 February 2019 and was prepared to assume that those prospects may well continue to exist and took them into account in the applicant’s favour.

33    The Tribunal then turned to how the various considerations under Direction 79 which were relevant to the applicant’s case should be weighed under the heading “Weighing up the discretion”. The Tribunal first observed that the weighing up exercise in this case “has been particularly difficult” (at [61] of its reasons). The Tribunal said that the applicant’s misuse of the drug ice was of particular concern, noting that it was at the root of his offending. Earlier, the Tribunal referred to the applicant’s drug use as a “tragic feature” of the application.

34    In its balancing exercise, the Tribunal returned to its concern that the applicant had an established history of offending and that even when disqualified from driving and on parole, the applicant’s use of ice led him to be involved in further motor vehicle related offences. The Tribunal took into account that prison had not proven to be a sufficient deterrent. It concluded that the nature and seriousness of the applicant’s conduct to date and the future risk posed to the community, arising from the potential for injury resulting from driving under the influence of ice, outweighed the interests of minor children. The Tribunal regarded that risk as strongly antisocial and one that carried a risk of direct physical injury to the community. The Tribunal squarely acknowledged that its decision meant that the applicant and his children would lose the possibility of one-on-one contact in Australia and that the applicant faced the additional burden of seeking to deal with his drug misuse in New Zealand, but concluded that on balance the correct or preferable decision was to affirm the decision under review. The Tribunal expressly noted that a deeply unfortunate consequence of removal from Australia in the present case was the fracturing of familial ties, which it observed often sustain an individual and make life meaningful.

Grounds of review

35    The applicant raises six grounds of review but accepts that grounds 2 and 3, are, in substance, the same:

1.    The Tribunal’s decision dated 2 March 2021 is affected by jurisdictional error as the Tribunal failed to consider a mandatory consideration prescribed by paragraph 14.2(1)(b) of Ministerial Direction 79, namely the effect of non-‍revocation on the applicant’s sister Helen Rameka, being a member of the applicant’s immediate family in Australia who is an Australian citizen.

2.    The Tribunal’s decision dated 2 March 2021 is affected by jurisdictional error as the Tribunal failed to genuinely consider the human consequences of the permanent exclusion of the applicant from Australia.

3.    In the alternative to Ground 2, the Tribunal’s decision dated 2 March 2021 is affected by jurisdictional error as the Tribunal failed to engage in genuine consideration of a significant and clearly expressed matters raised by the applicant in support of his request for revocation of the mandatory cancellation of his visa, namely the permanent exclusion of the applicant from Australia that would flow from a cancellation decision.

4.    The Tribunal’s decision dated 2 March 2021 is affected by jurisdictional error as the Tribunal failed to conduct an inquiry as to the appropriate weight to be given to the ‘other considerations’ prescribed by Ministerial Direction 79, namely:

(a)    the strength, nature and duration of the applicant’s ties to Australia; and

(b)    the impediments the applicant would face if removed to New Zealand,

in the specific circumstances of the applicant’s application to the Tribunal.

5.    The Tribunal’s subjective state of non-satisfaction that there was ‘another reason’ for revoking the mandatory cancellation of the applicant’s visa was vitiated by illogicality or irrationality, as its conclusion in relation to the applicant’s risk of reoffending was predicated on expert opinion that was plainly misguided in its application of a structured professional judgement tool.

6.    The Tribunal’s decision dated 2 March 2021 is affected by jurisdictional error as the Tribunal fundamentally misunderstood the nature of the statutory task it was required to perform.

36    Ground 5 relates to the report of Ms Zipparo referred to in [25] above. The nub of the complaint is that the Tribunal engaged in legal illogicality or irrationality in relying on Ms Zipparo’s conclusion in respect of the applicant’s risk of reoffending because it was submitted to be based on a professional risk assessment tool directed to predicting recurrence of violent offending and the applicant had no history of violent offending.

37    The applicant submits that each of the alleged errors was material.

Consideration

Relevant Principles

38    The applicant has the onus to demonstrate jurisdictional error: Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; (2015) 258 CLR 173 at 185 [24] (French CJ, Bell, Keane and Gordon JJ); Matthews v Minister for Home Affairs [2020] FCAFC 146 (Matthews) at [28] (the Court).

39    The Court has limited jurisdiction to overturn a decision of the Tribunal. The Court’s jurisdiction is confined to deciding whether the Tribunal’s decision was made lawfully, that is, whether the Tribunal’s decision is invalid by reason of a jurisdictional error.

40    A legal error by an administrative decision-maker will generally not sound in jurisdictional error if it was immaterial or not critical to the ultimate conclusion: Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123 at 134 – 135 [29] – [30] (Kiefel CJ, Gageler and Keane JJ); Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 at 445 [45] (Bell, Gageler and Keane JJ). A breach is material to a decision only if compliance could realistically have resulted in a different decision: SZMTA at [45] (Bell, Gageler and Keane JJ). Materiality is an ordinary question of fact in respect of which the applicant bears the onus of proof: SZMTA at [46] (Bell, Gageler and Keane JJ).

41    The power of revocation in s 501CA(4) has been considered by the Full Court in a number of decisions, most recently in Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 172 (Burley, Colvin and Jackson JJ) (which was delivered after the hearing in the present application). The characteristics of the revocation power were addressed by the Court at [26] – [27]:

26    In decisions of this Court, the construction of the terms of s 501CA(4) which confer the statutory power entrusted to the Minister to revoke a visa cancellation decision has been informed by the mandatory steps that are required by the earlier provisions in s 501CA. In that regard, it is significant that the earlier provisions of s 501CA require the Minister to give written notice of the decision to cancel the visa and relevant information (being specific information about the person that would be the reason or part of the reason for making the original decision). They also require the Minister to invite the person whose visa has been cancelled to make representations to the Minister 'about revocation of the original decision'. These mandatory steps provided for by s 501CA inform what is contemplated to occur in respect of the statutory power conferred on the Minister by s 501CA(4). It is in that context that s 501CA(4) confers the power to revoke the earlier cancellation decision. It is a power that is conditioned upon the Minister forming a state of satisfaction, relevantly for present purposes 'that there is another reason why the original decision should be revoked'.

27    Considered within the statutory context, the Minister's statutory power conferred by s 501CA(4) has been determined to have the following characteristics:

(1)    If representations are made to the Minister, a statutory obligation arises on the part of the Minister to form a state of satisfaction as to whether the person passes the character test or there is 'another reason' why the original decision should be revoked.

(2)    The state of satisfaction must be formed by reference to the representations such that a failure to consider the representations as a whole would be a failure to consider a mandatory relevant consideration.

(3)    The individual matters raised in the representations are not each mandatory relevant considerations and therefore do not need to be brought to account in the making of the decision such that they must form part of the considerations that give rise to the required state of satisfaction.

(4)    However, a state of satisfaction that is formed without considering a substantial or significant and clearly expressed claim made in the representations that there is a particular reason why the visa cancellation decision should be revoked is not a state of satisfaction of the kind required by the statute.

(5)    Further, there must be a real and genuine consideration of each such substantial or significant and clearly expressed claim.

(6)    If the state of satisfaction is formed that there is 'another reason' why the original decision cancelling the visa should be revoked then the Minister must revoke the cancellation.

As to these matters, see: Viane v Minister for Immigration and Border Protection [2018] FCAFC 116; (2018) 263 FCR 531 at [66] [68], [73] [74] (Colvin J, Reeves J agreeing); Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216; (2018) 267 FCR 643 at [41] [45] (Rares and Robertson JJ), [62] [63] (Flick J); Navoto v Minister for Home Affairs [2019] FCAFC 135 at [85] [89] (Middleton, Moshinsky and Anderson JJ); Minister for Home Affairs v Omar [2019] FCAFC 188; (2019) 272 FCR 589 at [34] [41] (Allsop CJ, Bromberg, Robertson, Griffiths and Perry JJ); GBV18 v Minister for Home Affairs [2020] FCAFC 17; (2020) 274 FCR 202 at [31] [32] (Flick, Griffiths and Moshinsky JJ); Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CTB19 [2020] FCAFC 166; (2020) 280 FCR 178 at [15] (McKerracher, Kerr and Wigney JJ); and Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 125 at [3] [4] (Katzmann J), [100] (O'Bryan J), [51] (Derrington J in dissent).

42    There has been a divergence in the decisions of the Full Court as to whether the Minister retains a residual discretion in respect of the exercise of the revocation power in s 501CA(4) once the preconditions in (a) and (b) are established: QJYD v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 962 at [37] (McKerracher J). That divergence is encapsulated in the division of the Full Court in Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 125 at [2] – [6] (Katzmann J), [100] (O’Bryan J); cf. [51] (Derrington J). The Full Court in Tohi found it unnecessary to decide the point: [7] (Katzmann J), [38] (Derrington J). A special leave application in relation to Tohi has been filed but has not yet been determined. In Bettencourt the Full Court concluded that if the state of satisfaction is formed that there is 'another reason' why the original decision cancelling the visa should be revoked then the Minister must revoke the cancellation (at [27(6)]). Although the decision in Bettencourt was delivered after the hearing of the present application, the parties to the present review proceeded on the basis that the Minister does not retain a residual discretion to revoke a visa cancellation if satisfied of the jurisdictional facts prescribed by s 501CA(4)(a) and (b).

43    It is important that the Tribunal’s statement of reasons be read fairly in the context in which they were delivered and not with an eye keenly attuned to the detection of error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259, 272 and 291 (Brennan, McHugh, Toohey, Gummow JJ) citing Collector of Customs v Pozzolanic [1993] FCA 456; (1993) 43 FCR 280 at 286 – 287.

44    The Court’s assessment of whether the statutory task has been undertaken is informed by reference to express statements by the decision-maker as to what was taken into account; evidence of the material that was placed before the decision-maker; the nature of the statutory obligation to give reasons, particularly the obligation in the present case for the decision-maker to set out the factual matters that the decision-maker considered material to his decision and the material evidence; the content of the reasons, that is the manner in which the reasons are expressed; and the character and content of the matters raised by the representations that are alleged not to have been brought to bear in forming the required state of satisfaction: Bettencourt at [32]. The Court will recognise that there is no obligation upon the Minister to refer to every piece of evidence or every contention: ETA067 v The Republic of Nauru [2018] HCA 46; (2018) 92 ALJR 1003 at [13] (Bell, Keane and Gordon JJ).

45    Having regard to ground 5, the observations of Derrington J in EHF17 v Minister for Immigration and Border Protection [2019] FCA 1681; (2019) 272 FCR 409 (at [86] – [88]) as to the nature of a review based on an allegation of legal illogicality or irrationality are also relevant:

86    In D’Amore v Independent Commission Against Corruption [2012] NSWSC 473, McClelland CJ (at [87]) observed that, when considering the question of illogicality or irrationality, it is important to keep steadily in mind that the reasons of a decision-maker should not be over-scrutinized:

A reviewing court must also bear in mind that the decision-maker’s reasons “are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed”: Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at [31]. The concern is with the overall strength of the defendant’s reasoning, not the adequacy or completeness of the defendant’s expression of its reasons.

87    In addition, care must be taken not to conflate administrative fact finding with that which occurs in a curial setting. In Eshetu, Gummow J (at [143]) referred to the observations of the joint judgment in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 282 (Wu Shan Liang):

Where facts are in dispute in civil litigation conducted under common law procedures, the court has to decide where, on the balance of probabilities, the truth lies as between the evidence the parties to the litigation have thought it in their respective interests to adduce at the trial. Administrative decision-making is of a different nature (Mahon v Air New Zealand Ltd [1984] AC 808 at 814). A whole range of possible approaches to decision-making in the particular circumstances of the case may be correct in the sense that their adoption by a delegate would not be an error of law.

88    It follows that an assessment of the reasoning of a repository of power as to the ultimate conclusion or as to fact finding ought not to proceed in the manner in which an appeal by way of rehearing would.

Ground 6

46    It is convenient to start with ground 6, which the parties addressed first at the hearing.

47    By this ground the applicant contended that the Tribunal fundamentally misunderstood the nature of the statutory task it was required to perform because it described itself as re-exercising the discretion of the delegate, and accordingly, it did not exercise the statutory power with a correct understanding of the law.

48    The parties proceeded on the basis that the Minister does not retain a residual discretion to revoke a visa cancellation if satisfied of the jurisdictional facts prescribed by ss 501CA(4)(a) and (b). That is consistent with the analysis in Bettencourt (at [27(b)]) and of the majority in Tohi: at [2] – [6] (Katzmann J), [100] (O’Bryan J); cf. [51] (Derrington J). The parties did not engage with the competing line of authority on the construction of s 501CA(4). It suffices in this case to assess whether the Tribunal’s reasons, read fairly and as a whole, demonstrate that the Tribunal addressed itself to the evaluative task posed by s 501CA(4)(b)(ii), and if it failed to do so, whether the applicant has established that the Tribunal’s error was material.

49    The applicant contended that the Tribunal should only have addressed itself to whether it was satisfied that there was ‘another reason’ for revocation because if it was so satisfied, the Tribunal would have been compelled to exercise the revocation power under s 501CA(4)(b)(ii) of the Act. The applicant submitted that the Tribunal’s function in this matter did not involve the exercise of a discretion and relied on Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66; (2017) 250 FCR 548 at 555 [31] (Collier J, with whom Logan J agreed at 561 [59] and Murphy J generally agreed at 561 [60]). That is, that ‘may’ in the chapeau of s 501CA(4) means ‘must’. The Full Court accepted this as the correct construction. In Marzano, the parties agreed and the primary judge found that s 501CA(4)(b) requires the Minister to revoke the cancellation if satisfied of the relevant requirements: Marzano v Minister for Immigration and Border Protection [2016] FCA 1180 at [48] (Moshinsky J). As noted above, in the present case, the Minister accepted that this was the correct construction of s 501CA(4)(b).

50    The applicant contended that the Tribunal’s references to the exercise of a discretion, its reference to reaching “a correct and preferable decision” and the absence of any reference to whether it was satisfied that there was “another reason for revocation” demonstrated that the Tribunal misapprehended its task. In short, the applicant submitted that the only issue for the Tribunal to determine was whether there was another reason for revocation in accordance with s 501CA(4)(b)(ii) of the Act, that the Tribunal did not identify that issue and made no finding as to its state of satisfaction or lack thereof in respect of that issue.

51    As to materiality, the applicant submitted that the Tribunal’s failure to consider the fundamental jurisdictional fact underlying the exercise of the power was key to the exercise of its jurisdiction and was therefore material. When pressed, the applicant was unable to identify any relevant matter which the Tribunal had failed to take into account that may have informed a state of satisfaction in respect of another reason to revoke the cancellation other than the alleged failure to take into account the effect of non-revocation on one of the applicant’s sisters. This alleged error is the subject of ground 1. For the reasons given in relation to ground 1, I am not satisfied that the Tribunal failed to consider the applicant’s argument concerning the impact of his removal on his sister.

52    I note the divergence in the authorities as to the construction of s 501CA(4). The way in which the Tribunal approached its task was in error on either view of s 501CA(4) because it did not in terms, or on a fair reading of its reasons, address itself to the conditions on the exercise of the revocation power, regardless of whether the power is subject to a residual discretion.

53    It is not contentious that the applicant had made representations in response to the invitation to do so under s 501CA(3)(b). The condition in s 501CA(4)(a) was therefore met. The applicant has not raised a ground of review by reference to s 501CA(4)(a). That is understandable even though the Tribunal made no reference to this condition.

54    Similarly, it is not contentious that the applicant’s criminal record qualified as a substantial criminal record such that the applicant did not pass the character test in s 501. Accordingly, it may be inferred that the evaluative task posed by s 501CA(4)(b)(i) was met even though the Tribunal made no reference to it. Again, the applicant has not raised a ground of review based on s 501CA(4)(b)(i).

55    The focal point of the applicant’s complaint is on s 501CA(4)(b)(ii) of the Act. Satisfaction as to ‘another reason’ to revoke the visa cancellation was a precondition to the valid exercise of the power to revoke contained in the chapeau of s 501CA(4). Crucially, the Tribunal did not turn its mind to this issue. This it had to do. On the basis of the analysis in Bettencourt and in circumstances where the jurisdictional facts in s 501CA(4)(a) and (b) were necessarily met, the evaluative task required to be undertaken by s 501CA(4)(b)(ii) was determinative. On the alternate view of the proper construction of s 501CA(4) the Tribunal had to reach the requisite state of satisfaction in respect of s 501CA(4)(b)(ii) before turning to consideration of the residual discretion.

56    The Minister accepted that there is no express reference in the Tribunal’s reasons to its consideration of the subjective jurisdictional facts in s 501CA(4)(b)(i) and (ii) but submitted that the Tribunal’s satisfaction on each of those issues may be inferred on a fair reading. I accept that the Tribunal’s reasons must be read in accordance with the principles identified in paragraphs 43 and 45 above. I bear in mind that the written reasons reflect in essence the oral reasons delivered under considerable time constraint on the last remaining day under s 500(6L) of the Act and very shortly after conclusion of the hearing. However, I think it is plain that the Tribunal’s approach assumed its task was a ‘re-exercise’ of a general discretion having regard to the considerations in Direction 79 without giving active consideration to the conditions on which the exercise of any such discretion is conditioned, particularly s 501CA(4)(b)(ii). That said, having regard to the breadth of the standard inherent in the concept of ‘another reason’ and the requirement in s 499 that the Tribunal must observe Direction 79, I am not satisfied that the applicant has established that the Tribunal’s error was material in the relevant jurisdictional sense.

57    The legal error made by the Tribunal did not result in the applicant losing a realistic possibility of a different outcome because, although expressed in erroneous terms, the decision-making process undertaken by the Tribunal was in substance what was required. That is demonstrated by comparing what the Tribunal did with the decision-making process required under s 501CA(4)(b)(ii). What is required of a decision-maker under s 501CA(4) was addressed in Viane v Minister for Immigration and Border Protection [2018] FCAFC 116; (2018) 263 FCR 531 at [30]-[31] (Colvin J, Reeves J agreeing):

30 There is no statutory power to revoke under s 501CA(4)(b)(ii) unless the Minister is satisfied that there is a reason, other than a conclusion that the person concerned passes the character test, which means that the original decision ‘should be’ revoked. It is not enough that there is a matter that might be considered or may be said to be objectively relevant. It must be a reason that carries sufficient weight or significance to satisfy the Minister entrusted with the responsibility to consider whether to revoke the visa cancellation that the decision should be revoked. Only a reason of that character enlivens the statutory power to revoke. It is the absence of such a reason that will result in a decision not to revoke a visa cancellation.

31 It is not possible to consider whether there is a reason why the original cancellation decision should be revoked without weighing up the nature and circumstances of the offending for which the person has been imprisoned (giving rise to the statutory duty to cancel the visa) on the one hand and the matters raised by way of representations on the other hand. The character of the reason that may satisfy a Minister that the cancellation decision should be revoked will depend upon all the circumstances, including the nature of the offending. There must be a weighing of the factors for and against revocation to see whether, in context, there is a reason that is enough to satisfy the Minister that the original decision should be revoked: Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66; (2017) 250 FCR 548 at [30]-[32] (Collier J, Logan & Murphy JJ agreeing) agreeing with Moshinsky J at first instance [2016] FCA 1180 at [52]-[53].

32 Further, as the making of representations about the revocation of the original decision is a condition that must be met before the statutory power to revoke is enlivened, there is a statutory obligation on the part of the Minister to consider whether the required state of satisfaction is met by reference to the material presented in the representations. (emphasis in original)

58    The standard inherent in the concept of “another reason” in s 501CA(4)(b)(ii) involves matters of opinion, value judgment and policy which accords a degree of decisional freedom to the decision-maker: Ali v Minister for Home Affairs [2020] FCAFC 109; (2020) 278 FCR 627 at 664 – 665 [110] (Collier, Reeves and Derrington JJ). The section reserves to the primary decision-maker a degree of latitude as to the choice of the decision to be made: see by way of analogy with appellate review of the discretionary exercise of judicial power Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541 at 560 – 563 [43] to [49] (Gageler J). The nature of the decision required by s 501CA(4)(b)(ii) brings to mind the discussion of the different legal concepts which constitute a “discretion” by Mason and Deane JJ, with whom Brennan J agreed, in Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513 (at 518):

…"Discretion" signifies a number of different legal concepts: see, e.g., the discussion in Pattenden, The Judge, Discretion, and the Criminal Trial (1982), pp. 3-10. Here the order is discretionary because it depends on the application of a very general standard - what is "just and equitable" - which calls for an overall assessment in the light of the factors mentioned in s. 79(4), each of which in turn calls for an assessment of circumstances. Because these assessments call for value judgments in respect of which there is room for reasonable differences of opinion, no particular opinion being uniquely right, the making of the order involves the exercise of a judicial discretion. The contrast is with an order the making of which is dictated by the application of a fixed rule to the facts on which its operation depends.

A decision made under s 501CA(4)(b)(ii) is not a decision required to be made by reference to a single specified criterion: cf Hossain at [40] (Nettle J) and [72] (Edelman J).

59    In Tohi, Derrington J observed at [37]:

It is also a regular feature of matters involving s 501CA that, once the cancellation decision has been made, the Minister, as she or he is required to do, contacts the erstwhile visa holder in writing and invites them to make representations. It appears to be the Department’s practice to send also a copy of the then current ministerial direction with the invitation. That often has the consequence that the subsequent representations are framed in accordance with the matters specified in the ministerial direction but without any indication as to whether they are referable to the formation of the relevant state of mind or to the subsequent exercise of discretion. In such circumstances, it may well be incumbent upon the Minister or a delegate when performing the function under s 501CA(4)(b)(ii) to take into account those representations even though they may be more correctly applicable to the exercise of the discretion if it is enlivened. This is not because of the operation of Direction No. 79 or the then current ministerial direction, but because the non-citizen has adopted one or more of the criteria in the relevant ministerial direction as the foundation of their representations.

60    The practice that Derrington J describes was followed in this case. The Tribunal conflated its evaluation of whether it was satisfied that there was another reason with what it described as re-exercising and weighing the discretion. The statement of facts, issues and contentions lodged by the Minister stated that “the key issue for the Tribunal is whether there is another reason why the cancellation decision should be revoked for the purposes of subparagraph 501CA(4)(b), having regard to the primary and other considerations contained in Part C of Direction 79. This involves an evaluative process, requiring the Tribunal to examine factors for and against revoking the cancellation, and an assessment and evaluation of those factors leading to the formation of a view as to whether the cancellation should be revoked: Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 337; [2016] FCA 1166 at 38 per North ACJ”. In substance that is what the Tribunal did.

61    The Tribunal engaged in the deliberative process of evaluation required of it in s 501CA(4)(b)(ii) by reference to the considerations in Direction 79 as part of what it erroneously described as re-exercising de novo the discretion. It may be accepted that the Tribunal did not expressly pose the question, “Is there another reason?” but it traversed, in a substantive way, the non-exhaustive list of considerations in Part C of Direction 79 by reference to the way in which the applicant had framed his case. It is necessarily implicit in the Tribunal’s conclusion that the decision under review should be affirmed, that, had it expressly approached its task through the lens of s 501CA(4)(b)(ii) there is no realistic possibility it would have been satisfied that there was another reason to revoke the visa cancellation.

62    Although the Tribunal erred in its approach, its error was not jurisdictional because the applicant has not established the realistic possibility of the Tribunal arriving at a different outcome. Ground 6 must be dismissed.

Ground 1

63    The applicant’s contention is that the Tribunal failed to consider a mandatory consideration prescribed by paragraph 14.2(1)(b) of Direction 79, namely the effect of non-revocation on the applicant’s sister, Helen Rameka. Ms Rameka is an Australian resident whereas the applicant’s other sisters and mother reside in New Zealand. The applicant relies on the following representations as to the impact of his removal on Ms Rameka:

(1)    in his Personal Circumstances Form submitted in about May 2020, in response to a question regarding the impact of non-revocation on family members, the applicant stated (as written):

I am very close to all my family here in Aus. The absence would cause distress and worry. I often turn to my family here in Aus for support more than back in N.Z.

(2)    in an undated handwritten letter submitted by the applicant, he stated that: if allowed to remain in Australia he would live at Ms Rameka’s house and would help out with housework and the care of her children; he has a very close relationship with Ms Rameka and her five children; while living with Ms Rameka previously, he helped her by babysitting and assisting with house duties; and his removal would be the worst outcome for his immediate family;

(3)    in a letter from Ms Rameka to the Minister dated 21 July 2020 she stated that: she had lived in Australia since 2000; the applicant had lived with her on and off since he was 16 years old; the applicant has a close relationship with her children; the applicant is a trusted member of her family; and the applicant has contributed financially to the running of the household; and

(4)    in oral evidence given by Ms Rameka before the Tribunal she said she was prepared to offer the applicant support, including accommodation in her family home, on condition that he sought counselling to address his childhood trauma, stayed off drugs and held down a job. Ms Rameka said she considered the applicant to be “in our family” and as in effect, her “oldest son”, not merely her brother.

64    The applicant submitted that the Tribunal, having largely accepted his evidence, was required to consider the impact of non-revocation on Ms Rameka as an immediate family member as required by paragraph 14.2(1)(b) of Direction 79. He contended that by failing to do so the Tribunal fell into jurisdictional error, relying on Minister for Immigration and Citizenship v Obele [2010] FCA 1445 at [53]; Williams v Minister for Immigration and Border Protection [2014] FCA 674; (2014) 226 FCR 112 at 126 ‍[34] - ‍[35] and YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 at [39].

65    The applicant submits that because the Tribunal said that “[w]eighing up the discretion” was “particularly difficult” that meant its decision was finely balanced such that had the Tribunal considered the impact of non-revocation on the applicant’s sister, it was possible that the outcome may have been different.

66    I am satisfied that on a fair reading of its reasons, the Tribunal had regard to the impact of the applicant’s removal from Australia on the applicant’s immediate family members including Ms Rameka, even though it did not address the issue as a separate topic. That is evident from the Tribunal’s consideration of:

(1)    Ms Rameka’s evidence that she lived in a stable family environment with her partner and five children and that they were willing to have the applicant live with them if he did not use drugs (at [45]). The Tribunal expressly noted that although the applicant had other family in New Zealand his attempt to rehabilitate would be adversely impacted by losing the support offered by Ms Rameka (at [59]). Implicit in the Tribunal’s approach was that non-revocation would necessarily have an impact on the ability of Ms Rameka to provide the support which she was willing to offer to the applicant and the concomitant loss to her of the opportunity to do so.

(2)    the positive relationship the applicant enjoyed with Ms Rameka’s children, the prospect of him resuming that relationship if he could stay away from drugs, the benefit that would flow to Ms Rameka’s children if that relationship was resumed and the applicant’s financial contribution to Ms Rameka’s household when he was staying with them (at [53]). Again, it is implicit in the Tribunal’s approach that it recognised that Ms Rameka herself would be impacted by the loss of the relationship between her brother and her children and the loss of financial support to her household.

(3)    the applicant’s connection with Ms Rameka and her family and the fact that his removal would mean the loss of that connection (at [56]), including his close connection with Ms Rameka, which the Tribunal observed was “very important to him”. The implicit corollary is that Ms Rameka would similarly lose her close connection with the applicant.

(4)    The Tribunal accepted that one of the deeply unfortunate consequences of removal from Australia was the fracturing of personal relationships within families and familial ties (at [65]). Within its reasons the Tribunal made reference to the genuine interest the applicant had in remaining in Australia due to his close personal relationships with his children, his sister and her family. In doing so, the Tribunal referred to those connections as the applicant’s “family ties” (at [56]). Read in context, the Tribunal’s reference to “personal relationships within families” and “familial ties”, encompasses the dual-edge of the impact of removal on the relationship between the applicant and Ms Rameka.

67    Having regard to the need to avoid construing the reasons with an eye keenly attuned to the perception of error and reading the reasons of the Tribunal fairly and in the context in which they were delivered, I am satisfied that the Tribunal did not fail to consider the impact of non-revocation on the applicant’s sister. Read fairly, the impact of non-revocation on Ms Rameka was one of the factors which the Tribunal considered to be in the applicant’s favour but which did not outweigh the factors that were against revocation (at [64]). The applicant’s contention that the Tribunal did not consider this aspect relies on an unduly narrow reading of the Tribunal’s reasons.

68    I am unable to accept the applicant’s submission as to materiality based on the Tribunal’s observation that its decision-making process was “particularly difficult” (at [61]). I do not accept, that read in context, the Tribunal’s task was “particularly difficult” because it was finely balanced. It is clear when read with the Tribunal’s references to the tragic circumstances of the application that the task was “particularly difficult” because the Tribunal had actively confronted the human consequences of the applicant’s removal and grappled with those consequences in making its decision.

69    Ground 1 must be dismissed.

Grounds 2 and 3

70    By these grounds the applicant submitted that the Tribunal failed to consider that non-revocation would likely result in the applicant’s permanent exclusion from Australia. The applicant alleged that in this way the Tribunal failed to consider the human consequences of non-revocation.

71    The applicant relied on Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; (2018) 267 FCR 628 at 630 [3] (Allsop CJ) (Markovic J, Steward J agreeing):

…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…

72    The applicant submitted that a relevant submission having been made, the Tribunal did not address the issue and nothing in its reasons suggested it was cognisant of the permanent consequence of non-revocation. The applicant’s submission to the Tribunal was as follows:

31.    We submit that should the Applicant not be allowed to remain in Australia, he will lose contact with his children and will never be able to bond with them again as their father because a section 501 (3A) mandatory cancellation will not enable him to ever enter Australia to visit his children.

73    The applicant submitted that the Tribunal’s failure to address the consequences of permanent exclusion, as opposed to removal and / or temporary exclusion, amounted to a jurisdictional error, relying on Hunt v Minister for Immigration, Citizenship Migrant Services and Multicultural Affairs [2021] FCA 507 at [66] (Collier J) and Hands at [3]. By permanent exclusion, the applicant refers to the operation of s 501E(1) of the Act which provides that a person whose visa has been the subject of a mandatory cancellation under ss 501, 501A, 501B or 501BA is not permitted to apply for another visa (other than a protection visa) while in the migration zone. The applicant also submits that if his visa cancellation is not revoked, he will be unable able to satisfy Special Return Criteria (SRC) 5001 contained in Schedule 5 to the Migration Regulations 1994 (Cth) and therefore could not be granted a visa even if he applied from outside the migration zone.

74    The Minister submitted that permanent exclusion is not a necessary consequence of non-revocation because there are, at present, a limited range of circumstances in which a person in the applicant’s position may be granted permission to re-enter Australia. It followed, in the Minister’s submission, that to say the applicant would be permanently excluded as a result of non-revocation was not accurate. The Minister accepted that item SRC 5001 applied to the grant of many but not all visas. The Minister submitted that there were instances in which SRC 5001 did not apply and further that pursuant to s 195A of the Act, the Minister had power to grant a visa to a person in immigration detention, regardless of whether the person applies for a visa. The Minister also argued that both the Act and the relevant regulations may be subject to amendment in the future. The Minister relies on Jessup J’s consideration of the SRC in Tanielu v Minister for Immigration and Border Protection [2014] FCA 1221; (2014) 226 FCR 154 (at [27]):

By contrast, the consequence upon which the applicant relies in the present case would be a practical reality only if he sought to return to Australia from New Zealand, the country of his nationality. … The “consequences” to which he does refer would, therefore, become relevant when he, as a national of New Zealand residing there some time in the future, decided to apply again for a visa to enter Australia. To the extent that this might be regarded as a “consequence” of the Minister’s decision, it does not have the legal proximity or the practical immediacy to that decision to justify the conclusion that, as a matter of law, the decision could not have been validly made without a consideration of it.

75    On a fair reading of its reasons, the Tribunal was cognisant of the likely permanence of the applicant’s exclusion if his visa cancellation was not revoked. The Tribunal expressly stated that it did not “underestimate the effect of immigration detention” where the “reality of the end of one’s life in Australia becomes starkly obvious”. The Tribunal did not treat the impact of the applicant’s removal as being transient or other than permanent, concluding that one of the deeply unfortunate consequences of removal is the fracturing of personal relationships, recognising that these relationships often sustain an individual and make life meaningful and specifically noting that the present case would entail a fracturing of familial ties.

76    As to the applicant’s reliance on Hands, the Tribunal’s approach in this case is far removed from the factual circumstances in Hands. The applicant in Hands arrived in Australia at three years of age from New Zealand and resided in Australia for 43 years. With the exception of his citizenship, the applicant had no other connection to New Zealand. He was also an active member of the Koori aboriginal community into which he had been accepted and where he met his partner and raised his children and adopted grandchildren, who were all in his care. At issue in Hands was the Minister’s conclusion that the applicant would “experience only short term hardship” if returned to New Zealand. Chief Justice Allsop concluded that the material did not rationally support such a conclusion and that the Minister had failed to give real consideration to the human consequences of the decision and the totality of the representations made: Hands at 640 – 641 [47]. By contrast, the Tribunal’s reasons in the present case reflect that it grappled with the human consequences of the non-revocation and the tragic circumstances of the applicant’s case in a decision which it acknowledged to be “particularly difficult”.

77    The applicant’s submission in relation to materiality was as for ground 1 and is rejected for the reasons at paragraph 68 above.

Ground 4

78    By this ground the applicant contended that the Tribunal fell into jurisdictional error by failing to turn its mind, explicitly or implicitly, to whether the specific circumstances of the applicant’s case meant that the “other considerations” raised at [55] - [60] of its reasons should be afforded more weight than would generally apply. In support of this contention, the applicant relies on Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 at [23] in which Colvin J considered the weight to be given to primary and secondary considerations as set out in Direction 65 (which was the relevant Ministerial Direction pre-dating Direction 79) and stated:

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.

79    I do not accept the applicant’s submission in support of this ground. The Tribunal’s reasons make plain that it did not regard itself as compelled to ascribe more weight to the primary considerations than the other considerations described in Direction 79. The Tribunal observed at [61] that “generally speaking” it was to give more weight to primary considerations than other considerations under Direction 79. In the result, the Tribunal did give more weight to the primary considerations relevant to the applicant’s case but that was a product of the Tribunal’s own evaluative process of considering and weighing the factors for and against revocation. A key issue for the Tribunal, and one which influenced the way in which it weighed the other considerations, was its assessment of the applicant’s drug habit as the root of his criminal offending and that it remained a current issue. The applicant’s prospects of drug rehabilitation loomed large in the Tribunal’s assessment of his likelihood of reoffending, the potential effect on the community if he did so and on his ability to re-establish familial relationships in Australia if the visa cancellation was revoked.

80    The applicant repeated his submission as to materiality based on the contention that the Tribunal’s decision was finely balanced. For the reasons set out in paragraph 68 above, I do not accept that if the Tribunal erred as alleged in ground 4 that such error was material.

Ground 5

81    By ground 5 the applicant contended that the Tribunal’s decision, in particular its conclusion as to the likelihood of the applicant engaging in further criminal conduct, was affected by legal illogicality or irrationality. This was said to arise from the Tribunal’s reliance on and adoption of the risk assessment outlined in the report of Ms Zipparo, a clinical neuropsychologist, which was submitted to the Department by the applicant. Relevantly, Ms Zipparo concluded that, applying the HCR-20 assessment tool (which seeks to predict an individual’s future risk of violence), the applicant’s risk of violent reoffending was moderate.

82    The applicant submitted that no reasonable person would ground their assessment of the applicant’s risk of future offending on Ms Zipparo’s assessment in circumstances where the applicant had no history of violent offending, and that the Tribunal’s adoption of Ms Zipparo’s assessment of his risk of reoffending was therefore illogical. The applicant submits that the Tribunal did not conclude that the likelihood of reoffending was moderate until after it had considered the Zipparo report and accordingly in terms of materiality it may have been open to the Tribunal to find that the applicant had something less than a moderate risk of reoffending if it had not relied on the Zipparo report.

83    In assessing the applicant’s risk of reoffending as moderate, Ms Zipparo had regard to not only the nature of the applicant’s offending until the relevant time but also his poor emotional coping skills and poor choice of associates. Ms Zipparo observed that these factors contributed to the applicant’s risk of offending. The Tribunal made similar observations in the context of assessing the applicant’s risk of reoffending (at [46]), noting in particular that the applicant’s emotional problems stemmed from childhood unhappiness.

84    Jurisdictional error arises where a decision maker has made illogical or irrational findings of fact or reason. “Extreme” illogicality or irrationality must be shown. It is not sufficient that a question of fact is one over which reasonable minds may differ: ARG15 v Minister for Immigration and Border Protection and Anor [2016] FCAFC 174; (2016) 250 FCR 109 at 122 [47] (Griffiths, Perry and Wigney JJ) citing Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 at [148] (Robertson J). A decision cannot be said by a reviewing court to be illogical or irrational or unreasonable simply because one conclusion is preferred to another possible conclusion: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at 648 [131] (Crennan and Bell JJ). Jurisdictional error may be established not only as to the final outcome of the decision but also in respect of illogical or irrational findings made by a decision maker “on the way” to a final conclusion: SZMDS at [132]; see also Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99at [151] - [153] (Robertson J); SZWCO v Minister for Immigration and Border Protection [2016] FCA 51 at [61] - [62] (Wigney J).

85    It is clear from a fair reading of the Tribunal’s reasons that it had formed its own view of the risk posed by the applicant to the Australian community before it referred to Ms Zipparo’s report. At [40] of the Tribunal’s reasons, the Tribunal stated it could not say that the likelihood of the applicant reoffending was low on the evidence and concluded that there was a “real risk” that the applicant would use drugs again.

86    The Tribunal referred to Ms Zipparo’s report as supporting the position the Tribunal had already reached on its own assessment of the evidence. It was appropriate having regard to paragraph 8.1 of Direction 79, which requires information from authoritative sources to be given appropriate weight, for the Tribunal to have regard to the Zipparo report, which was part of the material upon which the applicant relied before the Department. At the hearing before the Tribunal, the applicant made no challenge to Ms Zipparo’s evidence or any submission that her assessment as to risk of future reoffending should not be accepted or be qualified as limited to violent offending. The Zipparo report was but one of the materials that the Tribunal relied on. The Tribunal reached its conclusion based on the historical account given by the applicant, the objective facts of his offending history, and the most recent instance of the applicant acquiring drugs or being in possession of drugs in immigration detention, and its conclusion that there was a direct link between his drug use and his offending.

87    In terms of materiality, in circumstances where the Tribunal expressly connected the calibration of the risk of reoffending to the applicant’s continued drug use and found that the applicant had a history of reoffending and that there was a “real risk that the applicant will use ice again” ([40]), the applicant has not demonstrated that absent reference to the Zipparo Report, the Tribunal may have come to a different conclusion on the applicant’s risk of reoffending. The Tribunal connected the risk of reoffending to continued drug use in a way that was reasoned and analytical. The applicant has not established that the Tribunal’s decision was legally illogical or irrational.

88    The applicant’s submission as to materiality was as for grounds 1 to 4. Having regard to the Tribunal’s reasoning process in respect of the likelihood of reoffending, I am not satisfied that the applicant has established that even if there was an error in the Tribunal’s treatment of the Zipparo report, such error could give rise to a realistic possibility of a different result.

89    Ground 5 must be dismissed.

Associate:

Dated:    14 October 2021