Federal Court of Australia

JSMJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 718

ORDERS

THE COURT ORDERS THAT:

1.    A writ of certiorari issue bringing the decision of the second respondent to affirm the decision of a delegate of the first respondent not to revoke, under s 501CA(4) of the Migration Act 1958 (Cth) (original decision), cancellation of the applicant’s Class XB Subclass 200 Refugee visa into this Court and quashing it.

2.    A writ of mandamus issue directing the second respondent to re-determine the applicant’s application for the review of the original decision according to law.

3.    The first respondent pay the applicant’s costs of and incidental to the application, to be fixed by a Registrar if not agreed.

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

REASONS FOR JUDGMENT

LOGAN J:

1    The applicant was born in a refugee camp in Tanzania in 1994. His Burundi born parents had earlier fled from that country to Tanzania.

2    The applicant entered Australia as a then child with his family lawfully some 12 years later. Until 9 February 2021, he was the holder of a Class XB Subclass 200 Refugee visa (visa), issued under the Migration Act 1958 (Cth) (the Act). His holding that visa appears to have had a derivative quality, stemming from the acceptance by the Minister, prior to the family’s entry into Australia, that his parents met the criteria for such a visa.

3    On 9 February 2021, a delegate of the Minister, acting under s 501(3A) of the Act, cancelled the applicant’s visa. That cancellation was mandatory in that the delegate was satisfied that he did not pass the character test, because he had a “substantial criminal record” in terms of s 501(7)(c) of the Act. It has never been controversial that the applicant’s criminal offending and sentencing record is such as to provide a reasonable basis for such satisfaction.

4    On 12 February 2021, and in response to an invitation extended to him, the applicant made a representation in writing to the Minister requesting revocation of the cancellation of his visa (revocation request). As will be seen, the terms of that revocation request are of considerable importance in the present proceeding. On 19 August 2021, a delegate of the Minister decided not to revoke the cancellation.

5    The applicant then sought the review of that decision on the merits by the Administrative Appeals Tribunal (Tribunal). On 12 November 2021, for reasons given in writing that day, the Tribunal (constituted by Ms R Bellamy, Member) decided to affirm the Minister’s delegate’s decision.

6    The applicant has applied for the judicial review by the Court of the Tribunal’s decision, pursuant to the original jurisdiction conferred by s 476A(1)(b) of the Act. The Minister is the only active party respondent. As is appropriate, the Tribunal has filed a submitting appearance.

7    The originating application was not filed within the 35 day period for which s 477A of the Act provides. That period expired on 17 December 2021. The application was filed electronically that day but not until 7:00 pm. The effect of r 2.25(3) of the Federal Court Rules 2011 (Cth) is that an application filed at that time is deemed to have been filed the following business day for the Registry. So the application was filed one day late. The applicant sought the requisite extension of time.

8    An explanation for the slight delay was offered in evidence by the applicant’s solicitor, Ms Cindy Zhao. It transpired that instructions to proceed with the application were not received until some 50 minutes prior to the close of court business on 17 December 2021. Although steps to file the originating application were initiated immediately, “technical difficulties” of an unspecified nature were encountered with the result that it was not until 7:00 pm that the application was successfully filed.

9    The granting of an extension was opposed by the Minister, not on the basis of inadequate explanation for the delay but rather on the basis that the application lacked any reasonable prospect of success. Granted that, as originally pleaded, the grounds of review were, with respect, somewhat opaque but even as so pleaded they were never, fairly read, so hopeless as to warrant the refusal of an extension of time. Indeed, the more the submissions progressed the more, I rather thought, counsel for the Minister came to appreciate this. However that may be, I was persuaded at the time of hearing that the case was one for the granting of the requisite extension of time.

10    In the course of submissions, attention came to focus upon two alleged jurisdictional errors by the Tribunal:

(a)    a misconstruction of s 500(6H) of the Act and a consequential wrongful exclusion of information from the applicant as to his ignorance of his citizenship and a related failure to make an assessment as to whether the applicant was a citizen of Burundi; and

(b)    a constructive failure by the Tribunal to exercise the review jurisdiction consigned to it by s 500 of the Act.

11    The latter ground of review was said to be made manifest by an inadequacy of the Tribunal’s reasons and over-lapped with but was said to be wider than the former ground.

12    It is convenient first to explore, without reference to s 500(6H) of the Act, the wider basis upon which it was put that the Tribunal had failed to exercise its review jurisdiction.

13    The Tribunal reached the conclusion, unremarkable on the material before it, that it was satisfied that the applicant had a substantial criminal record and thus that occasion for the mandatory cancellation of the visa existed, because he did not pass the “character test”. It is not necessary to detail the applicant’s criminal record. The requisite details are found in the Tribunal’s reasons. Suffice it to say, a lengthy history, commencing in late adolescence, of anti-social, criminal behaviour, including domestic violence, is disclosed. A recurring theme in the applicant’s offending conduct is abuse of alcohol.

14    The major part of the Tribunal’s reasons is devoted to deciding whether there existed, in terms of s 501CA(4)(b)(ii) of the Act, “another reason why the original decision should be revoked”. For that purpose, the Tribunal addressed at length the various criteria specified by the Minister in the then prevailing direction issued by the Minister pursuant to s 499 of the Act, Direction No 90 – “Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA” (the Direction). The Tribunal was bound to comply with the Direction: s 499(2A) of the Act.

15    Having addressed each of the criteria in the Direction, the Tribunal stated, at [244], under the heading “Conclusion”:

244.    I am now required to weigh all the Considerations in accordance with the Direction. The Applicant will face serious hardship and risk of harm if removed to Burundi. His removal will negatively impact members of his family to varying degrees. Given those matters, compelling reasons are required to justify a non-revocation decision. In this case there are compelling reasons which are captured in Primary Considerations 1, 2 and 4.

Having reached this conclusion, the Tribunal stated in the following paragraph ([245]):

245.    I cannot exercise the discretion in s 501CA(4) of the Act to revoke the cancellation of the Applicant’s visa.

16    In essence, the appellant’s contention that the Tribunal had failed to exercise the review jurisdiction consigned to it was that, when one put aside the rehearsal in the reasons of the various criteria specified by the Minister in the Direction, all one was left with was [244]. This paragraph, it was submitted, exhibited such paucity of explanation as to exemplify a type of case described by Bromberg and Mortimer JJ in their joint judgment in DQM18 v Minister for Home Affairs (2020) 278 FCR 529 (DQM18), at [34]:

Where the statutory task is to consider whether there is “another reason” to revoke the visa cancellation, an omission to explain (whether by way of express findings of fact or otherwise) why a representation which is fairly raised on the material is not a sufficient “other reason” to revoke the visa cancellation will generally raise an arguable question whether the Assistant Minister has performed the statutory task required of her or him.

Later in their joint judgment in DQM18, at [35], Bromberg and Mortimer JJ stated:

Adhering to the structure of a ministerial direction must not distract from the primary statutory task, which is to consider (by way of active intellectual engagement) whether there is another reason to revoke the visa cancellation. In that task, the representations made by the person affected assume a primary and material role, irrespective of whether they engage directly with one of the matters in a ministerial direction.

17    These statements in DQM18 take up, as their Honours recognised, points made by a specially constituted Full Court of five judges in Minister for Home Affairs v Omar (2019) 272 FCR 589 (Omar), where numerous authorities concerning what is entailed in the consideration of a revocation representation are collected and discussed. One of those authorities is Hands v Minister for Immigration and Border Protection (2018) 267 FCR 628 (Hands) in which, Allsop CJ (with whom Markovic and Steward JJ agreed) stated, at [3]:

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

[Emphasis added by the Full Court in Omar]

18    The Minister, unsurprisingly but nonetheless aptly, emphasised the cautionary note sounded by the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, at 271 – 272, endorsing sentiments earlier voiced in this Court, about reading the reasons of administrators narrowly and with an eye for error.

19    It is only in [244] of the Tribunal’s reasons that there is any comparative analysis of factors telling for and against there being “another reason” for the revocation of the cancellation of the appellant’s via. That analysis is, with all respect to Member Bellamy, very compressed indeed. Further, to describe the requirement to be “weigh all the Considerations in accordance with the Direction” is, given the observations made in DQM18, apt to distract from the task ordained by the text of s 501CA, which is to consider whether there is another reason to revoke the cancellation, having regard to the representation made by the applicant. Yet jurisdictional error constituted by a constructive failure to exercise the review jurisdiction conferred on the Tribunal by the Act is not to be found in mere infelicity of language, much less in a failure to meet an ideal, real or self-imagined, in the furnishing of reasons by a tribunal member.

20    Further, what was said in DQM18, Omar and Hands must now be read subject to the later observations of Kiefel CJ, Keane, Gordon and Steward JJ in the High Court in Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 (Plaintiff M1/2021) as to a risk that using formulations such as “active intellectual engagement” to describe the obligation of the Tribunal in reviewing a decision may impermissibly introduce an element of subjective, judicial evaluation, thereby transgressing the proper role of a reviewing court. Their Honours stated in Plaintiff M1/2021, at [26] – [27]:

26    Labels like “active intellectual process” and “proper, genuine and realistic consideration” must be understood in their proper context. These formulas have the danger of creating “a kind of general warrant, invoking language of indefinite and subjective application, in which the procedural and substantive merits of any [decision-maker’s] decision can be scrutinised”. That is not the correct approach. As Mason J stated in Minister for Aboriginal Affairs v Peko-Wallsend Ltd, “[t]he limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind”. The court does not substitute its decision for that of an administrative decision-maker.

27    None of the preceding analysis detracts from, or is inconsistent with, established principle that, for example, if review of a decision-maker’s reasons discloses that the decision-maker ignored, overlooked or misunderstood relevant facts or materials or a substantial and clearly articulated argument; misunderstood the applicable law; or misunderstood the case being made by the former visa holder, that may give rise to jurisdictional error.

[citations omitted]

21    If, read fairly an as a whole, the reasons of the Tribunal do disclose that the representations as made have been considered and evaluated and offer a rational explanation as to why the Tribunal has not been satisfied that there was “another reason” for revoking cancellation, it is nothing to the point that some, perhaps even many, might have regard the reasons as of pedestrian quality.

22    The reference in [244] of the Tribunal’s reasons to “Primary Considerations 1, 2 and 4” is, self-evidently, a reference to considerations respectively specified in the Direction as “Primary Consideration 1 – Protection of the Australian Community”, “Primary Consideration 2 – Family Violence” and “Primary Consideration 4 – The Expectations of the Australian Community”.

23    As to these primary considerations, the Tribunal made these findings:

(a)    In relation to Primary Consideration 1, at [124] and [125]:

124.    While I accept that the Applicant has a very great desire to avoid deportation, I am not persuaded that this means he will not offend in future. I consider there to be a moderate risk that the Applicant will commit further offences of the kind that he has committed.

Conclusion: Primary Consideration 1

125.    Primary Consideration 1 weighs heavily against revocation of the cancellation of the Applicant’s visa

(b)    As to Primary Consideration 2, at [131]:

131.    The fact that the Direction devotes this Primary Consideration to family violence, in addition to emphasising the seriousness of acts of family violence and violence against women and children in Primary Consideration 1, indicates that increased significance is to be given to such conduct. The fact that some of the Applicant’s offending was family violence adds to the reasons not to revoke the cancellation of the visa.

(c)    As to Primary Consideration 4, at [153] and [154]:

Analysis – Allocation of Weight to this Primary Consideration 4

153.    Accordingly, in assessing the weight attributable to Primary Consideration 4, it is necessary to have regard to the following matters:

•    the applicant moved to Australia when he was a child of approximately 12 years of age. He is now approximately 27 years old;

•    the applicant commenced offending seven years after moving to Australia;

•    the applicant has engaged in serious violent offending including family violence and an assault on a police officer, and he has committed traffic offences of a kind that increase the risk of harm to other road users;

•    there is a moderate risk he will re-offend;

•    his offending demonstrates a disregard for the laws and legal apparatus regulating the community that he seeks to re-enter;

•    he has a limited employment history and there is no evidence of other contribution to the community outside his family; and

•    if he is removed to Burundi, it will adversely affect him, his son, Ms E, and his immediate and extended family as discussed in Primary Consideration 3 and the Other Considerations.

Conclusion: Primary Consideration 4

154.    Primary Consideration 4 weighs heavily in favour of non-revocation of the cancellation of the Applicant’s visa.

24    Incorporating by reference into [244] the conclusions in relation to Primary Considerations 1 and 2, it appears, inferentially, that a compelling reason for non-revocation was found by the Tribunal to exist in a moderate risk of the applicant re-offending, including that the risk re-offending concerned included a risk of further violence against women in any familial context in which the applicant might find himself.

25    The Tribunal commenced the reasons by correctly identifying, at [6], the basis upon which a visa cancellation might be revoked pursuant to s 501CA(4)(b) of the Act. Although the impression created by the reasons is, to take up a description used by Allsop CJ in Hands, of a mechanical formulaic rehearsal of the Direction by reference to the material before the Tribunal, to adopt such a description is, with respect, in light of Plaintiff M1/2021, apt to distract from the judicial task. Read as a whole, these reasons do explain why the Tribunal was not satisfied that there was “another reason” to revoke cancellation of the visa. I consider that, in light of Plaintiff M1/2021, I am bound to conclude that no wider jurisdictional error of the kind for which the applicant contended is exposed by the Tribunal’s reasons.

26    In fairness to those acting for the applicant, I should add that Plaintiff M1/2021 was decided after this proceeding was instituted. The case for a finding of such an error would have been stronger but for the qualification in that case of what was said in DQM18, Omar and Hands.

27    DQM18 and Omar nonetheless confirm what a reading of the language adopted by parliament in s 501CA(4) would in any event dictate, which is that the representations made by the applicant for revocation of visa cancellation is a relevant consideration. Exactly what that entails was the subject of elucidation by the High Court in another case decided after DQM18 and Omar, Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane (2021) 96 ALJR 13 (Viane). The High Court observed in Viane, at [13], of the scheme found in s 501CA of the Act that, “That scheme necessarily requires the Minister to consider and understand the representations received.” The Court stated, at [14]:

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.

[Emphasis added]

In the footnote (footnote 13) appended to this sentence, the Court recognised that, for a delegate of the Minister, or the Tribunal sitting in place of that delegate, a mandatory relevant consideration for the exercise of the revocation power could be found in a direction made by the Minster pursuant to s 499 of the Act. Recognition of a need to address the representations made by an applicant is also evident in these observations, at [15], in Viane:

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.

[Emphasis added]

The High Court also stated, at [15]:

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.

28    I turn then to the applicant’s narrower basis of challenge.

29    The applicant made his application for revocation in the form adopted for that purpose by the Minister. The responsive entries on the form have been made in handwriting, apparently by him. At item 1, “Personal Information”, in response to the sub-item “Place of birth (town/city and country)”, the applicant left a blank space. At item 2, “Your citizenship details”, in response to the sub-item, “Current citizenship(s)”, the applicant also left a blank space. Also at item 2, the applicant gave particulars of his parents, including that they were each citizens of Burundi.

30    Item 13 on the application form is headed, “Return to your country of citizenship”. Under that heading, this question is posed, “Do you have any concerns or fears about what would happen to you if you were to return to your country of citizenship?” A binary, Yes/No box choice is offered on the form in respect of answers. The applicant ticked the “Yes” box. Also under item 13, the applicant ticked the “No” box in response to the question, “Do you face any criminal charges/convictions in your country of citizenship?” Apart from this further answer, the applicant left the item 13 section blank. This included an absence of any answer on the form to the question, “Are there any other problems you would face if you have to return to your country of citizenship? If so, describe these.”

31    As a matter of overall impression and without intending any disrespect to the applicant, the answers on the form are not those of a person with strong English literacy skills. The most obvious example of this is at item 8, which concerns “Minor children” and seeks particulars at sub-item 8A of “all your minor children (including biological children, adopted children, step-children)”. The applicant has a biological son with his former partner. However, on the form, he left item 8 blank, giving no details of his son. In contrast and also under item 8, the applicant gives details of his relationship with his son under the sub-item, “Describe your relationship with each of your minor child/ren above, including how often you contact/see the child/ren and the role you play in their life”. Yet further, sub-item 8B seeks particulars of “all other minor children in your life (including grandchildren, nieces/nephews, foster children, etc)”. Apart from giving particulars of his sister, Ms V’s children (two specified as Burundian citizens, one as Congolese), he gives particulars of his son, specifying his son’s citizenship as “Burundian/Nigerian”.

32    Attached to and forming part of the application for revocation is a typewritten statement by the applicant, prepared with the assistance of his lawyer. The impact of that assistance is apparent in the greater English language command in that statement. That statement covers a number of topics. Amongst other things, the applicant states:

2.    I was born in Tanzania in 1994. I do not know my exact date of birth, but I generally provide a date of 1 January 1994 when requested. I came to Australia many years ago, when I was approximately 12 years of age. I do not know the exact circumstances that lead to us being granted refugee protection, but I do recall that it was very unsafe where I grew up. The Australian government granted my family refugee protection and I travelled to Australia with my mother, father, brothers, and sister.

…

The possibility of being returned to Burundi

33.    I am aware that, if my Visa cancellation is not overturned, or if I am not granted another visa to remain in Australia, I am at risk of being returned to Burundi. I have never lived in Burundi. We do not have any connections with anyone there anymore; my grandmother died last year, and she was the last remaining contact we had in Burundi. I would have no-one to turn to for help in establishing myself.

[The applicant then gives details of his fears about his situation if he were returned to Burundi. These are taken up in the Tribunal’s reasons.]

33    The applicant’s answer in [33] of his statement refers to an awareness of a risk of being returned to Burundi but gives no clue as to who made him aware of being sent to Burundi or how or why. The answer is self-evidently given on the basis of an assumption that he holds such citizenship. Nowhere in the form or in the accompanying typewritten statement does the applicant state positively that he is a citizen of Burundi.

34    The revocation application initiated an “administrative decision-making continuum”, which ultimately culminated in the Tribunal’s decision. It contained the initial “representation” made by the applicant for the purposes of s 501CA of the Act. In the present context, reference to that continuum is relevant, because the representation and the issues raised by it may later evolve in a way which explains why particular subjects are explored or not explored or receive or do not receive particular prominence in the Tribunal’s reasons.

35    That there is such a continuum does not mean that a failure to take into account a relevant consideration raised by the material before the Tribunal in a given case is any less a jurisdictional error but it may explain why such a consideration receives very little detailed attention. All of this was recognised by the Full Court in AAL19 v Minister for Home Affairs (2020) 277 FCR 393, at [24], and, more recently, in Savaiinaea v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 56.

36    The reasons of the Minister’s delegate for refusing the application for revocation also form part of that “administrative decision-making continuum”. The delegate’s reasons address, as contemplated by the Direction, whether an international non-refoulement obligation is owed by Australia in respect of the applicant. The delegate accepted that such an obligation was owed. The delegate stated:

[For] the purposes of this decision, I accept that there is a likelihood that non-refoulement obligations are enlivened in relation to [the applicant], with the country of reference being Burundi. This means that his removal to Burundi may potentially breach these obligations. I also accept that there is currently no known prospect of removing [the applicant] to any other country.

[Emphasis added]

There is nothing in the material transmitted by the Minister to the Tribunal after the review application was filed which discloses any investigation by or on behalf of the delegate of the subject of the applicant’s citizenship. Instead, it appears that, notwithstanding the blank space response concerning citizenship in the form and the absence of a positive statement by the applicant that he was a citizen of Burundi, the delegate approached deciding the country of reference on the basis of an assumption on the delegate’s part that the applicant was a citizen of that country.

37    In the interests of procedural fairness, minimising the prospect that a party to a review would be taken by surprise and seeking to identify what truly were the controversial issues of fact and law in a review, the Tribunal long ago adopted, as s 33(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) entitled it to do, a practice of requiring the parties to a review to lodge and exchange statements of facts, issues and contentions (SFIC). That practice was adopted in the present case. The SFIC filed in accordance with that practice also form part of the “administrative decision-making continuum”.

38    The applicant’s SFIC was prepared by his solicitor. That statement commences:

1.    The Applicant was born in Tanzania in 1994 to his Burundi parents who fled Burundi as a result of the ongoing civil war. The family, consist of his mother, father, two brothers, sister and the Applicant, lived in refugee camp for many years before being granted a Global Special Humanitarian (Class XB) (subclass 200) visa in March 2016, as part of the UN humanitarian resettlement program.

39    The applicant’s SFIC contains no positive statement that the applicant is a citizen of Burundi. Neither, it must be acknowledged, is there any gainsaying in that statement of the delegate’s view that the country of reference in relation to the subject of non-refoulement is Burundi. Instead, the delegate’s reasons are highlighted as a precursor to an elaborate consideration of case law culminating in a submission (at [53]) that the applicant faced a real prospect of indefinite detention such that “the refoulement obligation should be thoroughly determined with the assessment of the prospect of indefinite detention at the time of the revocation”. The applicant’s SFIC is cast on an assumption that the relevant country of reference is Burundi.

40    The Minister’s SFIC is also cast on the assumption that the applicant is a citizen of Burundi but makes no positive allegation to that effect (see [93] to [98]).

41    The Tribunal stated, at [157]:

157.    At no time has it been asserted by the Applicant, or on his behalf, that he is not a citizen of Burundi. This does not appear to be in dispute. Accordingly, the receiving country is Burundi.

42    The statement made in the first sentence of [157] about the applicant never asserting he was not a citizen of Burundi was not correct. It bears repeating that, at item 2 on the revocation representation form, “Your citizenship details”, in response to the sub-item, “Current citizenship(s)”, the applicant left a blank space. Further, as a passage from the applicant’s evidence, recited in part immediately afterwards in the Tribunal’s reasons reveals, the applicant believed that Burundi would not admit him and neither, he thought, would Tanzania. He stated he had no proof of his birth in Tanzania or that his parents were born in Burundi. The Tribunal recited, at [158], the following passage from the applicant’s evidence:

Ms Zhao: Okay. How about in terms of you were born in Tanzania and would the Burundi government take you back as a Burundi citizen? Do you know anything about that?

Applicant: I don’t think they would, because I don’t have the date of birth. Because I was born in Tanzania and I don’t think that Tanzania would take me because apparently Tanzania is closed down. And, yes, I don’t think – I don’t even know what they would do to me. Because they will ask me where I was born, and if I say I was born here they will ask me for the documents, and mum and dad don’t have the documents – we didn’t come with the documents.

Ms Zhao: So what do you mean? That you don’t have birth certificate?

Applicant: No. I don’t have birth certificate. Neither my dad or my mum, none of them do.

Ms Zhao: So you reckon they’re going to have issues to identify who you are to be able to take?

Applicant: Yes.

Ms Zhao: No birth certificate. Right?

Applicant: Yes, that’s why we really – our date of birth is different, because we don’t have the birth certificate.

Ms Zhao: Yes?

Applicant: Yes.

Ms Zhao: All right. So even proving you are a Burundi is going to be challenging. Is that right?

Applicant: No (indistinct).

Ms Zhao: For the government, the Burundi government, as well?

Applicant: Yes.

Ms Zhao: Even though Australia already accepted you’re Burundian. But for them, to recognise you are their citizen, that’s going to be challenging?

Applicant: Yes.

[Sic – Ms Zhao is the applicant’s solicitor and appeared for him before the Tribunal.]

43    The transcript of the proceeding before the Tribunal discloses that, after the passage quoted, the following exchange occurred:

Member: What’s that based on? What information or what source are you relying on there?

Ms Zhao: I think they will - - -

Member: No, I’m asking the applicant. He’s saying, he’s making all these statements about the law, the legal situation in Burundi. What’s that based on?

Have you looked it up on the website? Has a lawyer got advice for you?

Have you called the embassy? What’s all this based on?---Me?

Yes?---Well, my family. I just talked to my family about it and they just told me how things are.

All right. Maybe Mr Morris might want to dig a bit deeper into that.

All right.

Mr Morris: Can I just say – and I really don’t mean to disturb my friend’s flow – but this is not an issue that’s ever been raised previously - - -

Member: I agree.

Mr Morris: - - - the proposition that the applicant would not be accepted by his country of citizenship. So I am in a bit of a difficult position here, because this is the first time that we’re hearing that this might be an issue.

Member: And it’s also really traversing the two-day rule, I think, because it hasn’t been – I guess, there’s evidence being put forward that benefits – well, could benefit – the applicant’s case, and it wasn’t provided two clear business days before the hearing. And, Ms Zhao, you can see that it puts the respondent in a really difficult position, because they have almost no time to get any sort of information and evidence about this. And also, the evidence that the applicant is giving just seems like speculation and hearsay. So, I’m not going to consider that evidence and I won’t allow any further questioning on that topic.

Ms Zhao: Okay.

So is anything else you want to say about you going back to Burundi?---Yes,

I do. My biggest worry is that my son will pay for my crime and grow up without a father. At that time, I abused alcohol and made a very bad decisions. I had time to learn about myself and my addiction. It is a impact on others. I will (indistinct) AA and my church and my brother and sister.

My life is about my son now. I was a boy, now I’m ready to be a father. That’s all I got to say.

[Mr Morris appeared for the Minister before the Tribunal]

44    The “the two-day rule” to which Member Bellamy referred in this additional exchange was, as [159] of her reasons confirms, s 500(6H) of the Act. In that paragraph, she states:

159.    This evidence was not provided to the Respondent in a document two business days before the hearing. Under s 500(6H) of the Act, I am not permitted to take it into account. Accordingly, I have no regard to it.

The subsection provides:

(6H)    If:

(a)    an application is made to the Tribunal for a review of a decision under section 501 or a decision under subsection 501CA(4) not to revoke a decision to cancel a visa; and

(b)    the decision relates to a person in the migration zone;

the Tribunal must not have regard to any information presented orally in support of the person's case unless the information was set out in a written statement given to the Minister at least 2 business days before the Tribunal holds a hearing (other than a directions hearing) in relation to the decision under review.

45    In submissions, counsel for the applicant referred to [157] of the Tribunal’s reasons and also to [165]. In [165], the Tribunal stated:

165.    The Applicant has never lived in Burundi, as he was born in a Tanzanian refugee camp and lived there until he came to Australia in 2006. He therefore has no personal knowledge or experience of Burundi. The Applicant does not know why he was recognised as a refugee because he was a child when he arrived in Australia.

46    It was put that, on any objective analysis, the facts acknowledged by the Tribunal in [165], “fairly and squarely raise the question of citizenship of Burundi” and that the Tribunal had, “failed to ‘grapple’ with the whole issue of Burundi citizenship”. The applicant challenged the Tribunal’s rejection, purportedly under s 500(6H) of the Act, of the oral evidence given at the hearing by the applicant, quoted above. This, the applicant submitted, had the result that the Tribunal had “truncated the task of reviewing whether the applicant had citizenship of Burundi or not when the facts identifying those issues were properly before [the Tribunal]”.

47    The Minister accepted that whether a person is or is not a citizen of a particular country is determined by the law of that country. He also accepted that the content of foreign law is a question of fact, citing by way of example for that undoubtedly correct proposition Tahiri v Minister for Immigration and Citizenship (2012) 87 ALJR 225. He submitted, however, that for the Tribunal to make a logical, rational finding as to citizenship evidence about the law of the country concerned was not necessary. In support of that proposition, the Minister referred to AZK15 v Minister for Immigration and Border Protection [2015] FCA 1444 (AZK15) in which, at [40], Jagot J stated, in respect of a finding of citizenship by the Tribunal:

It was open to the Tribunal to draw that inference based on the available material. It was not necessary for the Tribunal to identify for itself a Malaysian law which expressly dealt with the appellant’s circumstances.

48    The Minister submitted that it was open in this case, for the Tribunal, “by reference to the fact that the applicant’s parents were citizens of Burundi and the fact that the applicant’s case was advanced on the basis that – at least inferentially – he was a citizen of Burundi” to conclude that he was a citizen of Burundi. In support, the Minister pointed to the same features of the “administrative decision-making continuum” to which I have already drawn attention.

49    Yet as was put on behalf of the applicant in oral submissions during the hearing, and reiterated in supplementary written submissions concerning the narrower ground of review:

… the applicant was in ‘between a rock and a hard place’ as far as the nature of submissions which had to be put [to the Tribunal]. [He] still had to respond to the argument as to what might happen to him if he were to somehow be deported to Burundi.

50    There is a good deal of force in this particular submission of the applicant. A survey of the whole of the “administrative decision-making continuum” discloses that the applicant never once made a positive statement that he was a citizen of Burundi. His initial representation (as contained in the ordained form) left the question of his citizenship as an open issue. His accompanying statement (at [33]) mentions he is “aware” that he might be returned to Burundi but not the source of that awareness. It is not an admission that he is a citizen of that country. Understandably, he addresses in the statement the apprehended difficulties he would face if he were sent to Burundi. The form completed by the applicant and his accompanying statement truly do warrant the prosaic “between a rock and a hard place” description adopted in the submissions made on his behalf. On the one hand, he professed ignorance of his citizenship status; on the other, he had to address, because of an awareness of a prospect, what might happen if he were sent to Burundi.

51    Notwithstanding the absence of any admission by the applicant of his citizenship of Burundi, or, as far as the material before the Tribunal reveals, any evidence thereof, the delegate acted on an assumption that the applicant was a citizen of that country. And so, too, did the Tribunal.

52    A starting but not end point in resolving the competing submissions is that the effect of s 33(1)(c) of the AAT Act was that the Tribunal was not bound by the rules of evidence but permitted to inform itself on any matter in such manner as it thought appropriate. The Tribunal did not need (although it could certainly act on) evidence admissible in a court as to the content of the law of Burundi in relation to citizenship and of its application to the circumstances of the applicant as the Tribunal found them to be in order, logically and rationally, to conclude that he was a citizen of that country. To hold otherwise would be to commit the error of borrowing “from the universe of discourse which has civil litigation as its subject”: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, at 282.

53    In AZK15, as Jagot J explains, at [40], the inference drawn by the Tribunal that Malaysia accepted the appellant as a Malaysian national irrespective of how he had obtained citizenship was supported by the material that the Tribunal had before it. That material included, “material showing that the appellant’s circumstances were common in Malaysia and that no step had been taken by Malaysia to suggest people in those circumstances were treated by it other than as citizens”. Further, as Jagot J also there explains:

… the appellant’s personal circumstances supported this – he had obtained a passport, identity card and driver’s licence in Malaysia as a citizen of Malaysia and he believed all of these documents were genuine. His fear that if Malaysia found out he had paid money for his citizenship it would renounce his hitherto accepted Malaysian nationality was rejected by the Tribunal on the facts, as the Tribunal was entitled to do.

Her Honour concluded that it was open to the Tribunal to draw an inference as to the appellant’s Malaysian citizenship based on that material. Her Honour stated, at [40], that it was “not necessary for the Tribunal to identify for itself a Malaysian law which expressly dealt with the appellant’s circumstances”. With all of this I respectfully agree. In many migration cases, citizenship is an uncontroversial given, a finding readily made administratively on the basis of a passport of other official document attesting to the holder’s citizenship of the issuing country. An inference may readily be drawn administratively from such a document that the foreign government concerned considers the bearer to be a citizen of that country according to its laws. Public administration would be quite impossible were this not so. But in AZK15, the Tribunal did address squarely the question of citizenship, as an exercise in that case of its function of reviewing afresh an administrative decision required.

54    Not all cases encountered in public administration may admit of such a logical, rational and ready inference as did AZK15 as to a given person’s citizenship on the material to hand. Some who arrive in Australia unlawfully may choose, as a deliberate stratagem, to destroy before arrival passports or other official documents attesting to their citizenship. Others who arrive unlawfully may, though no fault of theirs, never have possessed any evidence of citizenship or left in circumstances where it was just not possible to bring any such evidence with them. In other cases, and the present is one, entry into Australia may have been lawful but the person concerned may never have been issued either with a passport or even a birth certificate. Many other circumstances where no ready or obvious basis for determining citizenship is present can be envisaged.

55    In the present case, it might be thought that, necessarily, there must have been some investigation by the Minister’s department of the citizenship position of the applicant, his parents and other family members at the time when a decision was made in 2006 to issue them with visas. If so, there was no such evidence before the Tribunal.

56    Conceivably, a conclusion as to a person’s citizenship might be made administratively without any passport or other identity documents, just on the basis of an apparently truthful statement by the person (or another, perhaps a parent) as to their place of birth and confirmation by an Australian diplomatic or other source that persons so born acquire that country’s citizenship. Or there might be an apparently truthful statement as to a parent’s citizenship and like confirmation that such parentage is a foundation for a particular citizenship. A diplomatic source may not be necessary administratively. Other material sourced in open source foreign government websites or textbooks might, for example and without being exhaustive, offer an insight into the content of the citizenship law of the country concerned. However, the Tribunal had no such material before it. It did not even have a direct statement by the applicant that he was a citizen of Burundi. Indeed, as already noted, on the one occasion when such a direct admission was solicited, via item 2 on the representation form, the applicant left the response space blank.

57    The material before the Tribunal never rose higher than an assumption on the part of the applicant, shared with the Minister’s delegate, the Minister’s legal representative before the Tribunal and, it must be acknowledged, the applicant’s legal representative before the Tribunal, that he was a citizen of Burundi.

58    The applicant emphasised in submissions, by reference to what are now root authorities concerning the nature of the model chosen by parliament for the review function undertaken by the Tribunal under the AAT Act in those cases in respect of which a merits review jurisdiction is consigned to it by another statute, Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 41 FLR 338 and Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, this role of reviewing afresh an administrative decision. To these might be added, Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 and, more recently, Shi v Migration Agents Registration Authority (2008) 235 CLR 286 (Shi) and Minister for Immigration and Border Protection v Makasa (2021) 270 CLR 430, at [50].

59    As I recently highlighted in Mamatta v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 637, at [14], Shi is also important for the observations made by Kiefel J (as her Honour then was) about the need to identify with precision, by reference to the statute concerned, the particular decision which falls for review by the Tribunal in a given case. In my respectful view, the authority of these observations is not diminished by her Honour’s dissent on a subsidiary issue in that appeal. Her Honour stated, at [132] – [134]:

132.    The nature of the review conducted by the Tribunal depends upon the terms of the statute conferring the right, rather than upon the identification of it as an administrative authority entrusted with a particular type of function. The jurisdiction of the Tribunal, a statutory tribunal, depends upon there having been a decision made which it is authorised to review. Section 25 of the AAT Act, together with s 306 of the Migration Act, provides that authority with respect to a decision under s 303(1) of the Migration Act. Section 25(4) of the AAT Act limits the Tribunal’s powers to a review of that decision.

133.    Section 43(1) of the AAT Act provides for the powers that the Tribunal may exercise with respect to matters in respect of which it has jurisdiction. The exercise of the powers conferred by the sub-section is restricted to the Tribunal’s purpose, of reviewing the decision in question. As Sheppard J said in Secretary to the Department of Social Security v Riley, it is not possible to apply s 43(1) to the facts of any case without determining, first of all, what is the decision under review. It may therefore be appreciated that the decision, and the statutory question it answers, should be identified with some precision, for it marks the boundaries of the review.

134.    Section 43(1) expresses clearly that the Tribunal may exercise all of the powers and discretions conferred upon the original decision-maker. The Tribunal has been said to stand in the shoes of the original decision-maker, for the purpose of its review. In Minister for Immigration and Ethnic Affairs v Pochi Smithers J said that, in reaching a decision on review of a decision of the original decision-maker, the Tribunal should consider itself as though it were performing the function of that administrator in accordance with the law as it applied to that person. In Liedig v Federal Commissioner of Taxation, Hill J adopted, as applicable to the Tribunal, what Kitto J said of the Taxation Board of Review in Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation, namely that its function is “merely to do over again … what the Commissioner did in making the assessment”, within the limits of the taxpayer’s objection.

[Footnote references omitted, emphasis added]

60    While it fell to the Tribunal to review the decision made by a delegate of the respondent under s 501CA(4) of the Act, that decision was made in response to a particular representation with particular features. In conducting that review, the Tribunal was in no way constrained to follow the approach of the delegate or to make the assumptions made by the delegate. Any such constraint would be antithetical to the nature of the Tribunal’s review function as explained in the root and later authorities already mentioned. Further, as I have already indicated, that the Tribunal exercises its review function at a later stage of an “administrative decision-making continuum” might see issues for resolution evolve but that does not mean that a consideration made relevant by the precise nature of the decision under review could be ignored. Identifying with precision the decision under review by reference to the relevant statutory power, here that found in s 501CA(4) of the Act, always required the Tribunal to address the representations made by the applicant or, as was put in Viane at [13], to consider and understand them.

61    One representation made in this case was that the applicant professed no citizenship but assumed he would be sent to Burundi if the cancellation of his visa were not revoked.

62    Logically and rationally, a finding that the applicant was a citizen of Burundi, in the face of the blank space he had left on the form, required at least some supporting material that, for example, the applicant’s Burundian parentage conferred Burundian citizenship on him. As I thought the Minister accepted in the course of oral submissions, such country specific support was not offered by a general observation made in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte AME (2005) 222 CLR 439, at [115], by Gleeson CJ, McHugh, Gummow, Hayne, Callinan and Heydon JJ that, “… Although many countries of the world accept variations on a principle of nationality expressed in terms of jus soli (law of the place of birth), more have embraced the rule of jus sanguinis (law of descent)…”.

63    But behind the jurisdictional error of want of logicality and rationality in the determination of a country of reference made by the Tribunal was, as the applicant’s reference to a misconception by the Tribunal of the effect in the circumstances of s 500(6H) of the Act, a failure by the Tribunal to exercise carry out its review function according to law.

64    Explaining why that is so requires detailed reference to Uelese v Minister for Immigration and Border Protection (2015) 256 CLR 203 (Uelese).

65    In Uelese, the relevant obligation, flowing from s 499(2A) of the Act and the imperative terms in which the Minister had chosen to case his then current direction (Direction 55) materially required the Tribunal, when deciding whether to exercise the discretion conferred by s 501CA(4) of the Act to revoke the cancellation of the appellant’s visa, to consider the best interests of a minor child whose life would be affected by the removal of the appellant from Australia. In the present case, the Tribunal was under an identical obligation in respect of minor children but the material obligations, also flowing from s 499(2A) and the imperative terms of the Direction, were to:

(a)    “carefully weigh any non-refoulement obligation against the seriousness of the non-citizen's criminal offending or other serious conduct” ([9.1(2)] of the Direction); and

(b)     “consider the extent of any impediments that the non­citizen may face if removed from Australia to their home country” ([9.2(1)] of the Direction).

66    In Uelese, the Minister’s delegate had exercised his discretion to cancel the visa on the understanding that the appellant was the father of three children. During the course of the subsequent hearing before the Tribunal of the appellant’s application for review, it became apparent that he was also the father of two other, younger children in Australia. It was not in dispute that that information had not previously formed part of the visa-holder’s case, rather it was adduced in the course of the cross-examination of a witness called on behalf of the visa-holder. In circumstances where this information had been presented orally only, the Tribunal determined the visa-holder’s application on the footing that s 500(6H) of the Act precluded consideration by it of the interests of the visa-holder’s two younger children.

67    The conclusion reached in Uelese was that s 500(6H) did not preclude the consideration of the information about the two younger children. In their joint judgment, French CJ, Kiefel, Bell and Keane JJ stated, at [54] to [57]:

54.    Section 500(6H) does not expressly limit the power of the Tribunal to conduct a review or authorise the Tribunal to give less than the “proper consideration of the matters before [it]” required by s 33 of the AAT Act.

55.    Section 33(1) of the AAT Act provides generally that in a proceeding before the Tribunal the procedure of the Tribunal is within its discretion, that it is not bound by the rules of evidence, and that the proceeding is to be conducted with as little formality and technicality as, inter alia, a proper consideration of the matters before it permits.

56.    Section 40(1)(c) of the AAT Act provides that, for the purpose of reviewing a decision, the Tribunal may “adjourn the proceeding from time to time.”

57.    Section 500(6H) should not be construed to restrict the flexibility of the Tribunal to ensure procedural fairness to the parties to a review beyond what is required by its terms. Specific powers under the AAT Act that would be restricted in their operation on the Tribunal’s understanding of s 500(6H) include: s 39(1), which obliges the Tribunal to “ensure that every party to a proceeding ... is given a reasonable opportunity to present his or her case”; s 33(1)(c), which allows the Tribunal to “inform itself on any matter in such manner as it thinks appropriate”; and s 33(2A)(a), which allows the Tribunal to “require any person who is a party to the proceeding to provide further information in relation to the proceeding”.

Their Honours further stated, at [64] and [66]:

64.    Whether or not the appellant sought to make the interests of those children a positive aspect of his case, the Tribunal was obliged by s 499 of the Act and the terms of Direction 55 to take into account the interests of any minor children of which it was aware in determining his application for review. By virtue of s 499 and Direction 55, one of the primary considerations for the Tribunal concerned the interests of children who were not themselves represented in the proceedings before the Tribunal. The requirement of cl 9.3 of Direction 55 to consider the best interests of minor children in Australia affected by the decision is imposed on decision-makers in terms which are not dependent on whether an applicant for review argues that those interests are relevant as part of his or her “case”.

…

66.    It is apparent that the paucity of evidence referred to in the last sentence of the passage from the reasons of the Tribunal cited above was not due to the unavailability of material evidence. The Tribunal not only declined to act upon the information which was put before it by Ms Fatai, but it also failed to make even the most cursory inquiry to follow up on this information. This is not a case like Paerau v Minister for Immigration and Border Protection, on which the Minister sought to rely; here, the paucity of evidence was a consequence of the view taken by the Tribunal of the preclusory effect of s 500(6H).

[emphasis added, footnote references omitted]

68    The requirement to consider the two subjects mentioned above was likewise imposed on the Tribunal by s 499(2A) of the Act and the terms in which the Direction was cast. It was, likewise “not dependent on whether an applicant for review argues that those interests are relevant as part of his or her ‘case’”.

69    As in Uelese, the Tribunal “not only declined to act upon the information which was put before it” by the applicant in response to the questions posed by Ms Zhao, but it also “failed to make even the most cursory inquiry to follow up on this information”. The Tribunal did this in the face of an absence of expressed citizenship in the applicant’s representation and because, in error, the Tribunal considered that s 500(6H) had a preclusory effect.

70    Contrary to a submission made by the Minister, the answers given by the applicant in oral evidence but deliberately ignored by the Tribunal did not just go to an absence of an ability on the part of the applicant either by his own birth certificate or that of his parents to prove to authorities in Burundi that he was a citizen of that country. An issue for the Tribunal which the Minister had made relevant by the Direction and which was also raised by the representation made to the Minister by the applicant in the form was to identify the applicant’s “home country”. To reiterate, the applicant had left blank in his departmentally ordained representation form what was his country of citizenship, yet the Tribunal wrongly concluded “At no time has it been asserted by the Applicant, or on his behalf, that he is not a citizen of Burundi”. In the face of the positive position, evidenced by the blank response of the applicant as to his citizenship, the negative formulation adopted by the Tribunal could not logically or rationally be probative that he was a citizen of Burundi.

71    What has occurred here is that the Tribunal, like the delegate, failed to appreciate that an integer of the applicant’s representation was that he did not know what his country of citizenship was but was acting on an assumption that he would be sent to Burundi. The Tribunal both misunderstood the representation he had made and, in so doing, did not give the ministerially ordained subject of identifying his “home country” anything more than cursory and dismissive attention. The Tribunal appears to have been fortified in this approach by a mistaken view, at odds with Uelese, as to the operation and effect of s 500(6H) of the Act.

72    There are a number of ways in which the resultant error might be characterised. One way in which such an error might be characterised is as a failure to afford the applicant natural justice: Dranichnikov v Minister for Immigration and Multicultural & Indigenous Affairs (2003) 77 ALJR 1088 (Dranichnikov), at [23] – [24] per Gummow and Callinan JJ, Hayne J agreeing. Another, as their Honours also indicate, Dranichnikov, at [32], and as the applicant has chosen to characterise the error resulting from a misunderstanding of s 500(6H) of the Act in the present case, is a failure by the Tribunal to exercise the jurisdiction consigned to it.

73    The Minister submitted that any such error could not be material and thus not jurisdictional.

74    A succession of recently decided High Court cases, which may be traced from Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123, via Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 to MZAPC v Minister for Immigration and Border Protection (2021) 95 ALJR 441 (MZAPC), establish that it is a necessary element of the proof by an applicant of jurisdictional error on the part of a person exercising statutory decision-making authority that the error concerned be shown to be material. As was stated in MZAPC, at [2], this requires that an applicant prove, on the balance of probabilities, “a realistic possibility that the decision in fact made could have been different had the breach of the condition not occurred”.

75    Identifying quite where, if anywhere, the applicant might be returned is an essential feature of any consideration, in accordance with the Direction, of whether there is another reason why the cancelation should be revoked. Absence of particular citizenship was a feature of the applicant’s representations. On the material to hand, it is not possible to determine what is the applicant’s citizenship and in any event that is not the present judicial function. Quite what might be the outcome of identifying what citizenship, if any, the applicant has is a task for the Tribunal. The failure here by the Tribunal to give that subject even cursory attention and its essentiality mean that it cannot be concluded that there is no realistic possibility of a favourable outcome if the case is decided afresh. The errors made by the Tribunal were therefore jurisdictional.

76    The Tribunal’s decision must, for these reasons, be quashed and a mandamus must issue requiring the Tribunal to hear and determine the applicant’s review application according to law. The Tribunal as constituted by Member Bellamy made particular findings as to the applicant and his credibility. However, in the ordinary course, it is for the Tribunal’s President or her delegate to determine how the Tribunal should be constituted for the purpose of a rehearing. The Minister must pay the applicant’s costs.

Associate:    

Dated:    21 June 2022