FEDERAL COURT OF AUSTRALIA

Ngatupuna v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 390

ORDERS

THE COURT ORDERS THAT:

1.    The decision made by the second respondent (Administrative Appeals Tribunal), on 6 July 2021 be set aside.

2.    The application for review of the decision of the delegate of the first respondent made on 13 April 2021 be heard and determined by the Administrative Appeals Tribunal, differently constituted, according to law.

3.    The first respondent pay the applicant’s costs of and incidental to the amended originating application dated 21 February 2022, as assessed or agreed.

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

REASONS FOR JUDGMENT

BROMWICH J

1    The applicant, Mr Johnny Patrick Ngatupuna, a 45 year old citizen of New Zealand, seeks judicial review of a decision of the second respondent, the Administrative Appeals Tribunal, constituted by a Deputy President, the Hon Dennis Cowdroy AO QC. The Tribunal had affirmed a 13 April 2021 decision of a delegate of the first respondent Minister not to revoke the mandatory cancellation of Mr Ngatupuna’s Class TY Subclass 444 Special Category (Temporary) visa.

2    The Tribunal’s decision was made on 6 July 2021, the 84th day after notification of the delegate’s decision, and therefore being the last possible day to do so by reason of the operation of s 500(6L) of the Migration Act 1958 (Cth) (all further reference to statutory provisions are references to that Act). It was also 13 days after the two-day hearing before the Tribunal on 22 and 23 July 2021. It is obvious enough that the Tribunal’s reasons, on their face, were prepared by at least significant reliance upon the Minister’s statement of facts, issues and contentions, in several places paraphrasing or even using the exact words in that statement without attribution.

3    For the reasons that follow, there was a failure to conduct the review required in this case, rising to the high level of jurisdictional error. Accordingly, the Tribunal’s decision must be set aside and Mr Ngatupuna’s merits review application be required to be heard and determined according to law. In all the circumstances, it would be inappropriate for the rehearing and redetermination to be conducted by the same Tribunal member.

The grounds of review

4    The relevant aspects of the material that was before the Tribunal for this proceeding depends upon the grounds of review in Mr Ngatupuna’s amended originating application, the substance of which are conveniently summarised in his written submissions:

Ground 1 – failure to consider caring support

In its consideration of the strength, nature and duration of Mr Ngatupuna’s ties to Australia, the Tribunal failed to consider a claim or representation by Mr Ngatupuna regarding his support for his step-son [redacted] and his partner [redacted], extending beyond emotional support.

Ground 2 – failure to consider impact on employees

The Tribunal failed to consider a claim or representation made by Mr Ngatupuna regarding his contributions to the Australian community as an employer, and not solely as an employee.

The visa cancellation

5    Mr Ngatupuna undoubtedly has a serious, substantial and very troubling criminal record, including violence offences. This had resulted in numerous sentences of imprisonment and many other convictions and sentences. The most recent offences triggered the mandatory cancellation of his visa on character grounds under s 501(3A). It is not necessary to detail those offences as there is no dispute about their application to, and undoubted adverse impact upon, the request made by Mr Ngatupuna that the cancellation decision be revoked.

The case advanced for revocation

6    In his request for revocation of the cancellation decision under s 501CA(4), it was unlikely that Mr Ngatupuna was going to be able to satisfy the delegate or the Tribunal that he passed the character test as defined by s 501 and therefore meet the test for revocation under s 501CA(4)(a)(i). Mr Ngatupuna’s request for cancellation was therefore based on satisfying the delegate or the Tribunal that there was “another reason” why the original decision should be revoked so as to meet the test for revocation under s 501CA(4)(a)(ii). The approach that he took to requesting revocation of his visa cancellation accepted those realities.

7    It should also be noted that Mr Ngatupuna had been formally warned several times over the years about the risk of visa cancellation posed by his past offending, and any further offending. This was apparently to no avail as he continued offending. This was undoubtedly a serious impediment to satisfying the Tribunal that he was not at risk of further reoffending. That said, he seem to have made no attempt to evade responsibility for his offences beyond referring to alcohol and other personal issues, and did point to his more recent attempts at rehabilitation while in prison.

8    In considering whether there was “another reason” why the original decision should be revoked, the Tribunal was bound to consider a detailed, but not necessarily exhaustive, list of considerations by Ministerial Direction 90 under s 499 of the Migration Act. The delegate had been bound by the predecessor Direction 79, which was revoked two days after the delegate’s decision.

9    Both before the delegate and before the Tribunal, the terms of the relevant Direction meant that Mr Ngatupuna’s criminal history, and in particular his most recent offences, were always going to be important considerations against revocation. But Direction 90 also specifically required the Tribunal to consider important considerations in favour of revocation, as had been done by the delegate in applying Direction 79. As relevant in this case, that included an obligation to consider any impact on immediate family members in Australia and the strength, nature and duration of any other ties to the Australian community. A person seeking visa cancellation revocation is also entitled to advance material raising considerations going beyond Direction 90.

10    In this case, Mr Ngatupuna, despite representing himself before the Tribunal, did not merely rely upon an undifferentiated and extensive mass of material that was before the delegate and therefore necessarily before the Tribunal, but instead re-served a key and selection sub-selection of that material (select documentary material), as well as giving and calling evidence at the Tribunal hearing. He thereby facilitated a focused examination of what he was advancing in favour of revocation. There was no excuse for the Tribunal not to have considered the select documentary material carefully to ensure that the more focused claims thereby advanced were properly understood and considered.

11    The unsatisfactory approach of the Tribunal to Mr Ngatupuna’s claims did not dispense with the requirement for him to demonstrate jurisdictional error. The content of that requirement is addressed in some detail below, by reference to what Mr Ngatupuna advanced, and by reference to authority.

12    The select documentary material provided to the Tribunal (comprising 43 pages apart from the standard format of a statement of facts, issues and contentions to which it was annexed, including copies of photographs) was reproduced in a supplementary court book. This effectively put this Court in the same position as the Tribunal. The select documentary material was as follows:

(a)    extracts from the original request for revocation, limited to the claims being made;

(b)    letters from Mr Ngatupuna to the Minister in support of his request for revocation;

(c)    a letter of support from Mr Ngatupuna’s stepdaughter;

(d)    two letters of support by Mr Ngatupuna’s partner;

(e)    a letter of support from Mr Ngatupuna’s stepson;

(f)    a letter of support from Mr Ngatupuna’s close friend and former employee;

(g)    a letter of support from Mr Ngatupuna’s sister;

(h)    a letter of support from the General Manager of a business who had employed Mr Ngatupuna;

(i)    a letter of support from a former employee of Mr Ngatupuna’s scaffolding company, SV Scaffolding, signed by six other former employees;

(j)    an email sent by Mr Ngatupuna’s partner to the Minister’s Department containing material that included pictures of Mr Ngatupuna and his grandchildren, medical reports in relation to his step-son’s brain injuries, and correspondence the Sydney Aboriginal Family Support Service detailing how he and his partner can support their grandchildren.

13    The key claims made in the select documentary material, as relevant to the grounds of review, are as follows (verbatim):

(a)    From the extracts from the original request for revocation:

The impact this will have on myself and my family will be catastrophic. My family is going through a very tough time at the moment and is on the edge of a family crisis. Currently my youngest step son and my step daughter are both dealing with serious court cases at the moment which is physically and emotionally draining my fiancé of 12 years. …

My wife suffers from anxiety, bipolar and depression due to traumatic events in her past. My daughter is also dealing with a demon from the past that has traumatic effect on her daily life. My family needs me right now and I need them. …

I have grandchildren at home asking for papa, where is papa, that hurts me deeply. I come to the end of my crime and just wanna to focus on repairing, supporting my family through this hard time, also help all my employees by getting them back on the work train. Help them do good for them and there families. I know they are all waiting to come back to work. They all have had no luck with work. I also heard some of them have gone back to their old way cause lack of employment on the gold coast. So I hope I can help them get back on their feet and also do everything I can to help my own family. …

My wife has recently lost her mother to cancer last year and has taken a big toll on her and the grandchildren just being born will tear her apart. My wife is battling bipolar, depression and anxiety at the moment and will be very difficult to resume a normal life. She’s been in a very bad way, we are getting old and we need to be together with our children and grandchildren especially on my release from jail. …

My relationship with my step children and my two sons that live here in Australia and my grandkids are very solid. My fiancé and I have fought so hard over these last ten years to keep our heads above water and deal with everyday complication, wok and try to keep our kids on decent pathways. …

My kids need me more than ever. My relationship with nieces and nephews are just as solid. I am their favourite uncle, we always have family gatherings at least twice a month. Even though one of my sons is in Melbourne I always visit as the he play basketball for the Melbourne Tigers. …

The impact on my kids will be sever like death. My sons wedding is in Sept 2020 my grandkids cristining in Dec 2020 my nieces first born child March 2020 … There are so many upcoming event happening this year and next year for me that are very important to my family …

I recently started my own scaffolding business and took 12 blokes off the street and gave them a job. I changed their lives, but ended up in jail now. I hope to re-employ them when or if I get out of jail. …

I have been told the boys I have employed have been doing crime and been destroying their families lives. I gave them hope and it shows that anything is possible if you put your mind to it. I believe I can make a change in their lives. Please let me show you I have changed. I am too old for crime now, I wanna do good if you give me this chance. …

(b)    From Mr Ngatupuna’s letters to the Minister in support of his request for revocation.

The last 12 months have been very difficult. I’m dealing with severe health issues, grand children problems as well as trying to keep my family together as thing have been very difficult for them as well. …

Ive had more than enough time to think about my future and how much of a big impact I still have on all my family, friends and employees if I was to be deported. My grandkids and their safety is what concerns me the most. This has been eating away at me and my mrs since I have been in Jail. … They [Mr Ngatupuna’s step grandkids] have been mistreated and neglected by there mother and there father my son has minimal contact with them. As he has been a victim of abuse from her. …

Ive made some poor choices and bad mistakes witch [sic] I have learnt from. Im 43 and Im not getting any younger my days of crime are over my focus is my family who all live in Australia. …

I got my scaffolding business back into gear. My contractor [name redacted] can’t wait to get me and the boys back on the steel. All my employees are real keen to go back to work. There sick of being on Centrelink. …

(c)    From the letter of support provided by his stepdaughter:

My family has been made to leave our home in Gold Coast and come back here (Sydney) to restart what has worked hard for. Having to work from the bottom up again he (Mr Ngatupuna) provided another home for our family whilst dealing with my mum’s mental illness. Johnny was handling everything well but I think it was affecting his mental state. Nevertheless, he would get up 6 days a week and provided as much as he can, financially and with anything everyone needed help with. …

(d)    From the two further letters of support provided by his partner:

The last 5 months without Johnny has immensely impacted myself and families lives. I am a fibromyalgia sufferer and the quality of my life in just the last few months without my partners assistance has deeply suffered as his help and care he gives me has been a necessity to my health. My partner’s absence has taken a massive toll on our family as my eldest son has brain damage sustained from a motor vehicle accident age two and Johnny's role in his life as a Father plays a huge part in his overall wellbeing as they have a very close bond and my sons health also is affected by his absence. Johnny has played the role of a Father to my four children for the last 12 years and we now have 2 grandchildren also who adore and love him. The impact of the chance Johnny may be deported has had on our family as a whole has been profound, heartbreaking and most of all has brought unimaginable emotional pain to us all. …

Johnny has always worked and worked extremely hard at whatever he does. He is regarded highly in his community of work as he thrives to teach others and has a passion to help youth at risk and get them into work. I personally have witnessed this constantly over the last decade at least. My son Lachlan is an outstanding scaffolder and has a fantastic career in that field thanks to Johnny. 5 of my sons friends were all also taught this trade and given jobs which all are still scaffolding 9 years later. Before Johnny's arrest he had started his own scaffolding business in the Gold Coast and also gave youth at risk jobs in his company. This is his nature, to help people to the best of his abilities. …

Tagan has sustained 2 severe brain injuries one at age 2 and one at age 19. He relies alot on Johnny's presence in his every day to day life and his absence has put an extra burden on myself and others one that cannot be filled in respect to Tagan as Johnny provides so much physical and emotional support to Tagan and also life mentoring skills due to complications from Tagans head injuries. We live in Tagans home in the Goldcoast with Tagan. Johnny helps as his carer …

(e)    From a letter of support from the General Manager of Direct Scaffolding:

I write this reference to you in the hope for leniency, our business relies on Johnny Ngatupuna to erect and dismantle scaffold for our customers. His skills in the industry are second to none, his leadership skills shine mostly when he is training and mentoring the scaffolders for the future. …

(f)    From the letter of support from the former employee and endorsed by six other former employees of Mr Ngatupuna’s scaffolding company, SV Scaffolding:

He [Mr Ngatupuna] has helped us all by giving us a job and helping us get our lives back on track. Rather than go back to old habits and be useless bums. …

Johnny has always been a good role model for all of us since we all used work together at [business name redacted]. Johnny brings out the bet in us when it comes to work. He has helped us big time and we all want to work for him again when he gets out of jail. If there is anything we can do to help Johnny please let me know I’ll contact all the boys and we’ll all be there to help Johnny if need be. …

14    It is important to note that Mr Ngatupuna advanced setting up his own scaffolding business and employing others to work in that business as part of the strength, nature and duration of his ties to Australia. He did not suggest that this had any impact on Australian business interests so as to engage [9.4.2] of Direction 90. All of the claims that are relevant to this proceeding were capable of being relevant to [9.4.1] of Direction 90, being the strength, nature and duration of ties to Australia.

15    Additionally, the following other documentary material is relied upon by Mr Ngatupuna in support of his grounds of review, being further documents pre-dating the visa cancellation which were before the Delegate and the Tribunal:

(a)    a 2002 medical report which described his stepson’s traumatic brain injury at the age of 2 in great detail, including the consequent deficits on his cognitive function;

(b)    a statement submitted to the Department by his partner which described his stepson’s further injuries at the age of 19 in 2011, which was accompanied by further medical reports.

The relevant parts of the Tribunal decision

16    The Tribunal’s reasons in relation to [9.4.1] of Direction 90, being the strength, nature and duration of ties to Australia, were very sparse, with the totality being as follows:

[114]    The Applicant has resided in Australia for 14 years, and states that his strongest links are his family. The Applicant has family ties to Australia and the Tribunal accepts that there may be emotional hardship if the original decision is affirmed.

[115]    The Applicant says he has always liked music. That he has performed singing and dancing for charity functions. As detailed in the introduction of these reasons, the Applicant mentioned, at the hearing, his involvement in musical groups and employment with cruise ships and involvement with charities.

[116]    Statements have been provided by former employers which speak of a high standard of the Applicant's work as a subcontractor and of his work ethic, communication and behaviour. Another statement refers to the work of the applicant since he commenced in May 2019. The Applicant has contributed to the Australian community by being engaged in gainful employment. However, his history of offending has obviously contributed to an inconsistent employment history.

17    Only [114] and [116] are material.

18    The secondary, rather than primary, source of those reasons can be readily seen by a comparison with the Minister’s statement of facts, issues and contentions before the Tribunal, with only parts being carried over:

[95]    The applicant is now 44 years of age and has resided in Australia for 14 years since 10 April 2007. He has extensive familial ties to Australia and the respondent accepts that the applicant’s family may experience emotional hardship if the non-revocation decision was affirmed.

[96]    The evidence indicates that the applicant has worked as a scaffolder for 13 years. A letter from [name reacted] of Direct Scaffold dated 9 December 2020 states the applicant has worked for him as a sub-contractor and his work ethic, communication and behaviour has always been of a high standard (G2, 122). The applicant claims he has a scaffolding business on the Gold Coast and has “taken 12 blokes off the street and given them a job”. This claim is corroborated by a statement from Cory Ivy on behalf of “the boys of S.V Scaffold”, which states he has worked for the applicant since the applicant started his company in May 2019 and is “very grateful and appreciate everything has done for us” (sic) (G2, 135-136). Whilst the applicant may have contributed to the Australian community and been in gainful employment, this must be weighed against his extensive history of offending which undoubtedly contributed to an unstable and inconsistent employment history as well as the negative impacts his offending had on the Australian community.

[97]    The respondent accepts that the strength, nature and duration of the applicant’s ties to Australia weigh marginally in favour of revocation.

19    Two observations may be made arising from a comparison between the Tribunal’s reasons. First, the Minister’s statement of facts, issues and contentions did not come close to fully reflecting the burden of the material reproduced above. There is no criticism of the Minister in making that observation. The Minister was entitled to place emphasis on parts of the material as he saw fit. But the Tribunal must have been aware from the very nature of the statement of facts, issues and contentions that it was advancing the Minister’s perspective. For that reason alone, it was at best unwise to rely upon that perspective alone, especially with an unrepresented merits review applicant.

20    Secondly, even the Minister’s more limited view of the material before the Tribunal on this topic was not fully reflected in the Tribunal’s reasons reproduced above. Most tellingly, the only place in which the Tribunal makes any reference to Mr Ngatupuna setting up his own scaffolding business was in the following section addressing the impact on Australian business interests, again largely reproducing what was in the Minister’s statement of facts, issues and contentions. Nowhere did the Tribunal address Mr Ngatupuna’s scaffolding business as reflecting his past role as an employer, nor his intention to restart that business, which could not reasonably have been regarded as fanciful given his work history in that area, his apparent expertise, and his past success as a mentor and (albeit for a short time) employer.

Authority

21    Two days before the hearing of this application, Colvin J published a decision concerning an allegation before his Honour to the effect that claims made in support of an application for merits review of a decision not to revoke a mandatory visa cancelation decision had not been properly considered as required by the operation of s 501CA(4): Guttridge v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 229.

22    Mr Ngatupuna was quick to seize upon Guttridge and base his case around it, rather than dwell very much on the cases considered so thoroughly by Colvin J, or upon other cases. In particular, reliance is placed upon [14] to [26], where his Honour helpfully and comprehensively summarised the applicable principles. I gratefully adopt, endorse and reproduce those paragraphs, especially as little more is needed for this case:

[14]    In order to demonstrate jurisdictional error, it must be shown that the decision that has been made lacks the characteristics necessary for it to be given force and effect by the statute. It must be a decision of a kind that the Tribunal was not authorised by the statute to make: see Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123 at [24]-[25] (Kiefel CJ, Gageler and Keane JJ).

[15]    A claim that a statutory decision-maker has not given proper, genuine and realistic consideration to a particular matter is a contention that the nature and extent of deliberation undertaken by the Tribunal in respect of the matter was insufficient. There is no general rule as to the nature and extent of the deliberation that is required by a statutory decision maker in order to make a valid decision. In each case it is necessary to pay close attention to the statutory provisions to discern what they require concerning the characteristics of the deliberation that must be undertaken in order for the decision to conform to the particular statute.

[16]    In Minister for Home Affairs v Omar [2019] FCAFC 188; (2019) 272 FCR 589 a five member Full Court (Allsop CJ, Bromberg, Robertson, Griffiths and Perry JJ) dealt with the circumstances in which a failure to consider matters raised by a person under s 501CA as a reason for revoking a visa cancellation may amount to jurisdictional error. In the course of so doing, the Court set out what was required to perform the statutory task of considering a significant representation that was advanced concerning a matter that the decision-maker was required by the terms of a direction under s 499 of the Migration Act to consider. The Court described what was required as meaningful consideration. At [39], their Honours said:

Giving meaningful consideration to a clearly articulated and substantial or significant representation…requires more than the [decision-maker] simply acknowledging or noting that the representations have been made. Depending on the nature and content of the representations, the [decision-maker] may be required to make specific findings of fact…by reference to relevant parts of the representations in order that this important statutory decision-making process is carried out according to law.

[17]    Therefore, where a significant representation depends upon material advanced to establish the basis for the representation, the decision-maker must make specific findings about what to accept in order to consider the representation. Earlier in its reasons, the Court in Omar had emphasised the observations of Kiefel J (when the Chief Justice was a member of this Court) in Tickner v Chapman [1995] FCAFC 1726; (1995) 57 FCR 451 at 495, where her Honour said (in a different legislative context):

To 'consider' is a word having a definite meaning in the judicial context. The intellectual process preceding the decision of which s 10(1)(c) speaks is not different. It requires that the Minister have regard to what is said in the representations, to bring his mind to bear upon the facts stated in them and the arguments or opinions put forward and to appreciate who is making them. From that point the Minister might sift them, attributing whatever weight or persuasive quality is thought appropriate. However, the Minister is required to know what they say. A mere summary of them cannot suffice for this purpose, for the Minister would not then be considering the representations, but someone else's view of them, and the legislation has required him to form his own view upon them.

[18]    The Court in Omar also referred to the reasons of Burchett J in Tickner v Chapman at 476:

What is it to 'consider' material such as a report or representations? In my opinion, the Minister is required to apply his own mind to the issues raised by these documents. To do that, he must obtain an understanding of the facts and circumstances set out in them, and of the contentions they urge based on those facts and circumstances. Although he cannot delegate his function and duty under s 10, he can be assisted in ascertaining the facts and contentions contained in the material. But he must ascertain them. He cannot simply rely on an assessment of their worth made by others... It is his task to evaluate them, a task he can only perform after he knows what they actually are.

[19]    Tickner v Chapman was a case concerned with a statutory obligation imposed upon a Minister to consider a report and any representations attached to the report. The Minister's task was not exercised by delegation. In those circumstances, there was a particular focus upon the extent to which the Minister could rely upon departmental assistance in performing the statutory task. The reasons emphasised the need for the Minister personally to form his own view on the facts (Kiefel J) and to ascertain and evaluate the facts and contentions in the material (Burchett J).

[20]    Of course, care must be taken in applying these statements concerning a different statutory power to the particular task to be undertaken under s 501CA. Recently, in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41 [now reported at (2021) 395 ALR 403] the High Court considered the nature and extent of the fact finding obligation that falls upon the Minister when making a personal decision under s 501CA. In their joint reasons, Keane, Gordon, Edelman, Steward and Gleeson JJ said of the statutory scheme mandated by s 501CA that it:

…necessarily requires the Minister to consider and understand the representations received. What is 'another reason' is a matter for the Minister. Under this scheme, Parliament has not, in any way, mandated or prescribed the reasons which might justify revocation, or not, of a cancellation decision in a given case. It follows that there may be few mandatorily relevant matters that the Minister must consider in applying s 501CA(4)(b)(ii). Thus, the Minister is not obliged to take account of any non‑refoulement obligations, as expressed in the Act or otherwise, when determining whether there is another reason to revoke a cancellation decision where the materials 'do not include, or the circumstances do not suggest, a non-refoulement claim'. The power must otherwise be exercised reasonably and in good faith.

(footnotes omitted).

[21]    Their Honours continued at [14]-[15]:

No part of the statutory power conferred by s 501CA of the Act obliges the Minister to make actual findings of fact as an adjudication of all material claims made by an applicant. Based upon the representations made by an applicant, the cancellation decision and the 'relevant information' given to the applicant pursuant to s 501CA(3)(a), the Minister must, when the Minister is not satisfied that an applicant passes the character test, then determine relevantly whether to be satisfied that there is 'another reason' why the cancellation decision should be revoked. Deciding whether or not to be satisfied that 'another reason' exists might be the product of necessary fact finding, or the product of making predictions about the future, or it might be about assessments or characterisation of an applicant's past offending.

If the representations made lack any substance altogether, then this of itself might justify a decision not to be satisfied that 'another reason' exists to revoke the cancellation decision, without any need to make any findings of fact about the various claims made. Moreover, some of the topics that might be traversed might not lend themselves to be addressed by way of evidence. They may involve matters of judgment, especially when weighing factors for and against revocation. The breadth of the power conferred by s 501CA of the Act renders it impossible, nor is it desirable, to formulate absolute rules about how the Minister might or might not be satisfied about a reason for revocation.

(footnotes omitted)

[22]    After considering matters relating to the use by the Minister of personal or specialised knowledge or the accumulated knowledge of the Minister's department, the Court concluded at [22]:

It finally remains to be observed, and emphasised, that an applicant's prospects of persuading the Minister to revoke a cancellation decision will doubtless be all the greater if the applicant adduces evidence, or other supporting material, to make good the claims that she or he makes. The production of such evidence or material in the applicant's representations would engage the need for the Minister to consider such evidence and, if necessary, to answer it with further or different evidence, or other material, if the claims are to be rejected.

[23]    The above reasoning emphasises that it is for the Minister, when acting personally, to form a view as to whether a matter advanced may amount to 'another reason'. Further, it is only where a matter advanced is supported by factual material and it is necessary to make factual findings in order consider the matter advanced that there is a need to consider that factual material. Those two aspects explain the opening statement (quoted above) that 'no part of the statutory power conferred by s 501CA of the Act obliges the Minister to make actual findings of fact as an adjudication of all material claims made by an applicant' (emphasis added).

[24]    I do not understand any aspect of the reasoning in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane to detract from what was said in Omar in a case where the matters specified in a direction under s 499 must be considered.

[25]    In the present case we are concerned with a deliberative obligation that is imposed upon an independent statutory Tribunal which is directed by the Minister as to the matters that it must consider by the terms of Direction 90. Certain of the provisions of the Administrative Appeals Tribunal Act 1975 (Cth) do not apply to an application or review by the Tribunal: see s 500. However, they do not include s 43 which requires the Tribunal to give reasons for its decision that 'include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based': s 43(2B) of the Administrative Appeals Tribunal Act. Therefore, in respect of representations made to the Tribunal concerning matters that the Tribunal is directed to consider which representations depend upon factual matters, it may be expected that the consideration that it must undertake is one which will enable it to discharge its statutory obligation to provide reasons that set out its findings on those factual matters. The Tribunal must know and understand such facts (what they say) and form its own view concerning them. It is only once that point has been reached that the Tribunal is in a position to undertake the statutory task of sifting the various considerations. It is an essential part of the deliberative task of considering representations as to matters that the Tribunal must consider that views are formed as to any factual material advanced as the foundation for those representations.

[26]    It has also been said that a decision-maker must bring to bear an active intellectual process or that there must be an active intellectual engagement with the matters raised: Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352 at [36]-[46]; Ali v Minister for Home Affairs [2020] FCAFC 109 at [45] and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v FAK19 [2021] FCAFC 153 at [76].

Ground 1

23    The substance of Mr Ngatupuna’s submissions is to the effect that the Tribunal confined its consideration of his claims concerning his immediate and extended family, and the material he provided to support those claims, as reproduced above, to nothing more than emotional hardship. He submits that in so doing, the Tribunal failed to consider the broader claims he made about the impact of not revoking the visa cancellation decision, both as a mandatory relevant consideration under [9.4.1] of Direction 90, and in discharge of its more general obligation to address sufficiently articulated claims clearly enough advanced.

24    The Minister counters to the effect that it should be inferred that the Tribunal accepted the submission that he had caring responsibilities for his partner, being the context in which the reference was made to emotional hardship, and otherwise characterised the claims made, especially in relation to the needs of his stepson, as being insufficiently clear as to what help he could provide to be a claim that was not addressed.

25    I am unable to accept the Minister’s argument. In my view, the material extracted from the select documentary material above was presented to the Tribunal in a way that emphasised Mr Ngatupuna’s reliance upon it, called for no real effort to locate it, and entailed only a relatively short time in which to consider it. That material supported claims made by him in his statements, supported by statements by others, and other material including medical records. It is clear and plain that several of these claims were not addressed by the Tribunal at all. In particular, the claims which were clearly enough not considered by the Tribunal included those to the following effect:

(a)    that he provided significant mentoring skills, physical and emotional support to his stepson, who has a mild intellectual disability as a result of two severe brain injuries, in circumstances in which his partner, who is the stepson’s mother, had her own serious health problems and therefore a limited capacity to provide that assistance and support;

(b)    that he provided physical and financial support to his partner, not merely emotional support;

(c)    that he fully intended to resume providing that support if his visa was restored and he was released from immigration detention, with them, along with the rest of his extended family, having materially suffered during his absence;

(d)    that he provided support to his step grandchildren who as he states “live in an unstable environment” under the sole care of his stepson.

26    In my view the failure to consider these claims was material. I do not suggest that a different outcome was at all assured if these claims had been considered, and considered properly. However, I am comfortably of the view that there was a realistic possibility that the Tribunal would have made a different decision had these claims received the required attention and consideration.

27    It follows that jurisdictional error has been established and ground 1 must succeed.

Ground 2

28    The substance of Mr Ngatupuna’s submissions are to the effect that the Tribunal confined its consideration of his claims concerning his ties to the wider community arising out of his work as an employed scaffolder. However, he contends that his past ownership and operation of a scaffolding business, and his intention to restart that business that had employed a significant number of workers, was overlooked or otherwise not considered. Again, he submits that the Tribunal failed to consider the broader claims made about this further impact of not revoking the visa cancellation decision, both as a mandatory relevant consideration under [9.4.1] of Direction 90, and in discharge of its more general obligation to address claims that had been clearly made.

29    The Minister counters that the Tribunal’s finding was not limited to its consideration of the evidence about Mr Ngatupuna as an employee, but also to his connection with the community as set out in the former employee’s statement. The Minister contends that the Tribunal only had to consider any other ties that Mr Ngatupuna had with the community.

30    Again, I am unable to accept the Minister’s argument. It is evident from the select documentary material extracted above, which was made very easy for the Tribunal to read and consider, that Mr Ngatupuna was making claims that were not addressed at all. That included not just his skills and success as a scaffolder as an employee, but his independently verified ability to teach, train, mentor, and (if given the opportunity) employ other people, including disaffected and unemployed young people who had fallen on bad habits and welfare dependency.

31    Again, the failure to consider those claims was material, and while it cannot be assured that they would have made a difference, there is a realistic possibility that they might have, especially when coupled with the material that is the subject of ground 1.

32    It follows that jurisdictional error has again been established and ground 2 must succeed.

Conclusion

33    As both grounds of review have been established:

(a)    the decision of the Tribunal must be set aside;

(b)    a differently constituted Tribunal must reconsider Mr Ngatupuna’s application for merits review; and

(c)    the Minister must pay Mr Ngatupuna’s costs.

Associate:

Dated:    14 April 2022