Federal Court of Australia

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v ZRTY [2022] FCA 1529

ORDERS

THE COURT ORDERS THAT:

1.    The name of the applicant be amended to the “Minister for Immigration, Citizenship and Multicultural Affairs”.

2.    A writ of certiorari be issued quashing the decision of the second respondent.

3.    A writ of mandamus be issued requiring the second respondent to determine the first respondent’s application for review according to law.

4.    The first respondent pay the applicant’s costs.

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

REASONS FOR JUDGMENT

KATZMANN J:

1    Section 501(3A) of the Migration Act 1958 (Cth) imposes a duty on the responsible Minister to cancel a visa granted to a non-citizen if, relevantly, the Minister is satisfied that the person does not pass the character test, defined in s 501, because the person has a substantial criminal record in that, amongst other alternatives, the person has been sentenced to a term of imprisonment of 12 months or more. If a visa is cancelled on this basis, the Minister is obliged, by virtue of s 501CA(3)(b), to invite the person to make representations “about the revocation” of the cancellation decision. Section 501CA(4) provides that:

The Minister may revoke the original decision if:

(a)    the person makes representations in accordance with the invitation; and

(b)    the Minister is satisfied:

(i)    that the person passes the character test (as defined by section 501); or

(ii)    that there is another reason why the original decision should be revoked.

2    Any of the Minister’s powers under the Act may be delegated (Migration Act, s 496).

3    A decision not to revoke a cancellation decision that is made by a delegate of the Minister is reviewable in the Administrative Appeals Tribunal (Migration Act, s 500(1)(ba)). But where the Tribunal has not made a decision in relation to the decision under review within 84 days after the day the applicant was notified of the decision under review, the Tribunal is taken to have made a decision to affirm the decision under review (s 500(6L)(c)).

4    The Minister may give written directions to any person or body having functions or powers under the Act about the performance of those functions or the exercise of those powers (s 499(1)) and, if the Minister does so, such a person or body must comply with them (s 499(2A). For years directions have been given with respect to the exercise of the powers in s 501 to refuse to grant or to cancel a visa and those in s 501CA to revoke a mandatory cancellation decision. The direction which bound the decision-makers in the present case was Direction no. 90, which commenced on 15 April 2021. Direction no. 90, like its predecessors, relevantly requires the relevant decision-makers, when exercising the discretion to revoke a mandatory cancellation decision to take into account certain “primary and other considerations”, giving “appropriate weight” to evidence from “independent and authoritative sources” and, in general, greater weight to the primary considerations than the other considerations. The primary considerations are the protection of the Australian community from criminal or other serious conduct; whether the conduct engaged in constituted family violence; the best interests of minor children in Australia; and the expectations of the Australian community.

5    In the present case, the Minister, through a delegate, cancelled the visa held by ZRTY, a dual citizen of Italy and Morocco, pursuant to s 501(3A). ZRTY made representations to the Minister to revoke the cancellation decision in accordance with the Minister’s invitation. A delegate of the Minister decided not to revoke the decision and ZRTY applied to the Tribunal to review the delegate’s decision. On review, the Tribunal member was not satisfied that ZRTY passed the character test and considered that more information was necessary before he could decide whether there was another reason why the cancellation decision should be revoked. He ordered that the cancellation decision be set aside and the matter remitted to “the Department” for reconsideration.

6    This is an application for judicial review of the Tribunal’s decision made under s 476A(1)(b) of the Migration Act. The Minister seeks orders that a writ of certiorari be issued to quash the Tribunal’s decision and a writ of mandamus be issued to require the Tribunal to determine ZRTY’s review application according to law. He also seeks an order that ZRTY pay his costs. The application is supported by an affidavit of Caroline Bush, the solicitor with the carriage of the matter on the Minister’s behalf, which merely annexed the Tribunal’s decision. In short, the Minister contends that the Tribunal fell into jurisdictional error. For the reasons that follow, that contention is correct and the orders sought should be made.

Background facts

7    ZRTY arrived in Australia from Italy on a working holiday visa at the age of 18 in November 2018. A year later his visa expired and he became an unlawful non-citizen. On 5 March 2020 he applied for an XA 866 (Permanent Protection) visa. The following day he was granted a Bridging C (Class WC) (subclass 030) visa and on 31 August 2020 he was granted a second Bridging C (Class WC) (subclass 030) visa.

8    On 16 September 2020 ZRTY was convicted in the Bankstown Local Court of “Stalk/Intimidate intend fear physical etc harm (domestic)”; “Assault occasioning actual bodily harm (DV)”; and two counts of “Contravene prohibition/restriction in AVO (Domestic)”. The victim in each case was his mother. He was sentenced to a community correction order and ordered to undertake drug and alcohol counselling. The Court also made an apprehended domestic violence order, naming his mother as the person in need of protection.

9    On 24 September 2020 ZRTY was convicted in the Sutherland Local Court of “Contravene prohibition/restriction in AVO (Domestic)”; and “Stalk/Intimidate intend fear, physical harm etc (Domestic)”. Once again, the victim of these crimes was his mother. His community correction order was revoked and he was sentenced to an aggregate term of imprisonment of 12 months, commencing on 22 September 2020. A non-parole period of six months was fixed.

10    On 9 November 2020 the Minister’s Department wrote to ZRTY advising him that his Bridging C (Class WC) (subclass 030) visa was cancelled that day under s 501(3A) of the Migration Act and invited him to make representations about the revocation of the cancellation.

11    On 15 December 2020 the Mental Health Review Tribunal made a forensic community treatment order to expire no later than 14 December 2021 and to be reviewed on 14 June 2021.

12    On 16 February 2021 ZRTY’s migration agent wrote to the Minister’s Department responding to the invitation attaching a request for revocation form completed and signed by his client. In that form ZRTY nominated the following “reasons for revocation” (without alteration):

I SUFFER WITH MENTAL HEALTH ISSUES; AT THE TIME OF THE OFFENDING I WAS SUFFERING WITH THESE CONDITIONS ALSO.

AT THE TIME OF OFFENDING IMPACTED MY DECISION-MAKING PROCESS WHICH RESULTED IN BREACHING THE AVO.

I AM REQUIRED TO REMAIN IN AUSTRALIA IN ORDER TO CONTINUE RECEIVING TREATMENT AND MEDICATION FOR MENTAL HEALTH ISSUES; MY MOTHER IS THE ONLY CLOSE MEMBER OF MY FAMILY UNIT, AND SHE RESIDES IN AUSTRALIA ON A STUDENT VISA.

I HAVE NO RELATIONSHIP WITH MY FATHER WHO RESIDES IN ITLAY. FURTHER, ALTHOUGH I HAVE A SISTER IN ITALY, SHE RESIDES IN TEMPORARY AND SUPPORTED HOUSING MEANING THAT SHOULD I RETURN TO ITALY, I WILL HAVE NO HOME TO GO TO AND NO ONE TO SUPPORT /ASSIST ME WITH MY MENTAL HEALTH ISSUES.

13    In his “personal circumstances” form ZRTY responded to the request to describe the current and/or likely impact of a negative outcome in the following way:

DUE TO A HISTORY OF FAMILY VIOLENCE MY MOTHER WISHES FOR ME TO REMAIN IN AUSTRALIA AS MY FATHER IN ITALY WILL LIKELY CAUSE ME HARM SHOULD I RETURN. IF I DO RETURN TO ITALY, I WILL HAVE NO PLACE TO LIVE.

14    Later, he wrote:

MY FATHER COMMITTED FAMILY VIOLENCE AGAINST ME AND MY MOTHER. MY FATHER HAS THREATENED MY MOTHER THAT IF I RETURN TO ITALY HE WILL KILL ME.

15    He said that he had no immediate family in Italy except for his father and sister and no home to go to or anyone with whom he could live. He indicated that he was on prescription medication for schizophrenia, claimed that his “mental health illnesses” affected his ability to make positive decisions but that, with further treatment and medication he could become a responsible and productive member of the Australian community.

16    In the covering email, the migration agent wrote:

From the outset we advise the Department of Home Affairs that given [ZRTY’s] extensive mental health concerns, a copy of his medical records from St. George Hospital, Liverpool Hospital and the Justice Health and Forensic Mental Health Network have been requested. [ZRTY] is required to remain in Australia given his mental health concerns, and the ongoing medication / treatment he sorely needs.

In addition to the above, [ZRTY’s] only immediate family member – his mother - resides in Australia as the holder of a Student Visa, Subclass 500. As per the attached Response Form, [ZRTY] and his mother were the subject of Family Violence at the hands of his father, a current resident of Italy. [ZRTY] is required to remain in Australia in order to support his mother as well as avoid returning to Italy where he may be subjected to Family Violence.

Going forward and upon receipt of [ZRTY’s] medical records as noted above (and prior to a decision being made on [ZRTY’s] matter), additional supporting evidence and submissions will be made on behalf of [ZRTY] addressing Ministerial Direction No. 79.

We trust that the above will be kindly considered in the meantime.

17    ZRTY was released from prison at the end of his non-parole period but immediately taken into detention in Villawood, thereby frustrating the community treatment order made by the Mental Health Review Tribunal.

18    While he has been in immigration detention, he has been involved in numerous altercations.

19    On 21 May 2021 ZRTY was convicted in the ACT Magistrates Court of “Burglary – intent to steal” and “Common assault” and placed on a 12 month good behaviour bond.

20    On 18 June 2021 ZRTY’s migration agent replied to the Department’s letter of 28 April 2021 attaching written submissions, statements from ZRTY’s mother and a friend of his mother, ZRTY’s health records, and extracts from the website “Better Health Victoria”. In the submissions, the agent wrote, amongst other things:

Whilst residing in Italy, the applicant was subjected to regular and ongoing acts of domestic violence, both verbally and physically by his father.

As a result of the domestic violence, the applicant and his mother were subjected to many periods of unstable accommodation and homelessness.

The threats of violence did not end until the applicant and his mother relocated to Australia in 2018.

The applicant has a biological sister currently residing in Italy however there is little, if any, contact between the two (2) siblings.

The applicant has been diagnosed with schizophrenia since arriving in Australia.

In order to combat social isolation and the effects of being subjected to many years of ongoing acts of domestic violence, the applicant began using illicit drugs in and around December 2018.

A result of being a victim of domestic violence, the schizophrenia now manifests itself as psychosis, insomnia, perceptual disturbance, and other psychological health issues. These conditions are compounded when the applicant uses illicit drugs.

The applicant’s psychological state of mind worsened when his mother entered into a new relationship in Australia. This now-former partner, an Australian citizen, would often scream at the applicant, belittle him and act in a manner that was aggressive and reminiscent of his father in Italy, including physically assaulting him and his mother.

Following on from his turbulent childhood, suffering through domestic violence in both Italy and Australia, the applicant’s escapism through the use of illicit drugs has regrettably led to his offending in Australia and the current character issue with the Departments.

…

21    Further submissions were made on 22 November 2021 and 31 January 2022. They were accompanied by additional medical evidence. That evidence included a report from mental health clinician at the Mental Health Unit at Liverpool Hospital to which he was admitted on 17 November 2021 after having been sectioned under the Mental Health Act 2007 (NSW) “due to concerns of delusional and experience of auditory hallucinations and non-compliance with oral medication”. The report concluded with the following opinion:

[ZRTY’s] unique and complex experience of mental illness requires ongoing treatment for [ZRTY] to foster his own personal recovery. Without these supports, historically [ZRTY’s] experience of mental illness, past trauma, substance use and current psychosocial stressors related to uncertain visa/legal status has shown that he is at acute risk of harm to self, risk of harm to others and risk of misadventure.

22    On 8 February 2022 a delegate of the Minister decided not to revoke the cancellation decision.

The Tribunal’s reasons

23    The Tribunal said that there is “no doubt that [ZRTY] does not pass the character test” and therefore observed that the question was whether there is another reason why the cancellation decision should be revoked (at [3]). It said that it had the choice between three “options”: to affirm the decision under review; to set the decision aside and substitute a different decision; or to set the decision aside and remit the matter to the Department for reconsideration (at [5]). As the Minister observed in his submissions, these “options” reflect three of the four powers the Tribunal may exercise on a review, the other being the power to vary the decision.

24    It recognised that Direction 90 binds the Tribunal and that the weight to be given to the various considerations it is required to take into account is to be determined by the decision-maker together with other relevant matters suggested by the circumstances of the case or the subject of representations made by the applicant (at [6]). But it did not decide the question it had identified, namely, whether there was another reason why the cancellation decision should be revoked, concluding that it was “not possible at this time to be satisfied about several relevant matters” (at [6]) because of the dearth of evidence about ZRTY’s capacity to overcome his addiction to methamphetamines and to obtain treatment for his schizophrenia.

25    The Tribunal was concerned that ZRTY’s case had been poorly prepared (at [9]); that there were no records from the various hospitals to which he had been sent since March 2021 or from a psychiatrist or psychologist from International Health and Medical Services (IHMS) before the delegate or the Tribunal; that he had had little treatment for his drug addiction or his schizophrenia; that he was able to maintain his addiction in detention; and that he was non-compliant with his medication while in detention (at [10]). The Tribunal believed that evidence might be obtained to support revocation (at [14]) and noted that it only had six days to make a decision, otherwise the reviewable decision would be taken to be affirmed (at [4]). The Tribunal was also concerned that returning ZRTY to Italy would be “very problematic” and that ZRTY’s drug dependency and schizophrenia “mean that he will not be able to look after himself if returned to Italy or Morocco” (at [12]).

26    After noting that ZRTY’s mother, who gave evidence before the Tribunal, was willing to help her son, the Tribunal observed that ZRTY was “known to NSW Health” and might obtain assistance with his mental health and addiction if he were released from detention and appropriate arrangements were made for him “outside Villawood” (at [13]). The Tribunal stated that “[c]onsideration could be given by a decision maker” as to whether ZRTY might be rehabilitated if he had proper accommodation in some institution (at [14]), and questioned whether the Minister had considered sending ZRTY to such an institution, noting its duty of care to detainees (at [20]). The Tribunal noted that the ZRTY had been released from prison on a community treatment order developed by the Mental Health Review Tribunal, but was unable to participate in it because he was detained in Villawood upon his release, which had exacerbated his drug addiction and mental health problems (at [28]). The Tribunal observed that ZRTY had been involved in numerous incidents in detention, including assaulting Serco officers, and that he was scheduled under the Mental Health Act by IHMS on 16 November 2021 (at [30]) but no Serco records had been provided after 17 November 2021 (at [32]).

27    The Tribunal stated at [36]–[38]:

36.    The absence of IHMS records from the G documents and the absence of up to date Serco records suggest to me that assuming the respondent has complied with s501G of the Migration Act, the reviewable decision must have proceeded without sufficient documentation then available. The reviewable decision was dated 7 February 2022. That fact, together with the unavailability to the Tribunal of the records to which I have referred is one reason why I find myself unable to consider what order may be appropriate in substitution for the reviewable decision.

37.    The circumstances of the applicant indicated by the evidence suggest that the return of the applicant to Italy or Morocco may expose him to great risk, not excluding the risk of his death by overdose or misadventure, and will deprive him of the considerable benefit he was due to obtain by reason of the MHRT’s orders of 15 December 2020, of which he was deprived by being taken into detention in March 2021.

38.    Remitting the matter for reconsideration will also enable the applicant’s mother, with appropriate advice, to set out a plan for the applicant to be admitted to Jeffrey House or some other institution, with a view to the kind of steps envisaged in December 2020 by the MHRC being taken. Since the orders made by the MHRC have now expired a fresh order from the MHRC may be necessary.

28    The Tribunal observed that ZRTY was “plainly in need of extended treatment to free him from his drug addiction and to treat him for his schizophrenia” (at [41]). It remarked that “[t]o contemplate returning him to Italy or Morocco without such treatment significantly bears of the question whether there is another reason to revoke the cancellation of his visa”. It observed that, “[b]efore the delegate or the Tribunal on further review, consideration may be given to Direction 90 in due course, including to family violence matters” (at [47]) and that further treatment of ZRTY in Australia, “when properly proved”, would be “highly relevant to the decision maker” in considering whether to revoke the cancellation decision (at [48]).

The grounds of review

29    Two grounds of review are pleaded. Omitting the particulars, those grounds are that:

(1)    the Tribunal misconstrued its powers under s 43(1)(c)(ii) of the AAT Act and s 501CA(4) of the Migration Act in failing to consider whether there was “another reason” to revoke the cancellation decision under s 501CA(4)(b)(ii) on the basis that it was “not possible at this time to be satisfied about several relevant matters”; and

(2)    the Tribunal erred in exercising its power under s 43(1)(c)(ii) of the AAT Act in that it mistakenly assumed that the Minister or his Department was required to obtain additional information that might assist ZRTY’s case.

30    Put another way, the Minister’s case is that the Tribunal failed to conduct the review required of it and thereby fell into jurisdictional error. For the reasons that follow, that broader contention is made out.

Did the Tribunal fall into jurisdictional error?

31    The Tribunal’s reasons reveal that its election to set aside the original decision and remit the matter to the Department for “reconsideration” was made on the basis that it was “not possible … to be satisfied about several relevant matters”. In Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Jokic [2020] FCA 1434 this Court set aside a decision of the Tribunal constituted by the same member in very similar circumstances. In that case (Jokic and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 279) the Tribunal said that it was “not in a position to apply the Direction or exercise discretion in this matter because the evidence does not permit me to do so” and concluded that “[t]he matter must be returned to the respondent to be investigated further” (at [12]). It reasoned that, “before the mandatory considerations in the Direction could be the subject of findings, further information must be obtained (at [19]). In contrast to the present case, however, the Tribunal purported to direct the Minister to make certain inquiries to obtain additional information which it considered necessary before a decision could be made on whether the cancellation of that applicant’s visa should be revoked. On the application for judicial review, Jagot J held that the statements made at [12] and [19] disclosed that the Tribunal fell into jurisdictional error for much the same reasons as the Minister contends it did so in the present case.

Did the Tribunal misconstrue its powers (ground 1)?

32    Section 43(1) of the AAT Act provides:

Tribunal’s decision on review

For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision and shall make a decision in writing:

(a)    affirming the decision under review;

(b)    varying the decision under review; or

(c)    setting aside the decision under review and:

(i)    making a decision in substitution for the decision so set aside; or

(ii)    remitting the matter for reconsideration in accordance with any directions or recommendations of the Tribunal.

33    It is uncontroversial that the Tribunal’s powers must be read with the relevant powers and discretions conferred by the enactment pursuant to which the decision under review is to be made. The nature of the review conducted by the Tribunal depends on the terms of the statute conferring the right of review: Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at [132] (Kiefel J). Here, that statute is the Migration Act and specifically s 500(1)(ba).

34    For the purpose of conducting the review the Tribunal “stands in the shoes” of the Minister: Esber v Commonwealth of Australia (1992) 174 CLR 430 at 440 (Mason CJ, Deane, Toohey and Gaudron JJ). As Bell, Gageler, Gordon and Edelman JJ observed in Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250 at [51]:

The AAT exercises the same power or powers as the primary decision-maker, subject to the same constraints. The primary decision, and the statutory question it answers, marks the boundaries of the AAT’s review. The AAT must address the same question the primary decision-maker was required to address, and the question raised by statute for decision by the primary decision-maker determines the considerations that must or must not be taken into account by the AAT in reviewing that decision.

35    The ultimate question raised by the statute was whether the original decision to cancel ZRTY’s visa should be revoked. In order to answer the question, the Tribunal was required to form a state of satisfaction about whether ZRTY passed the character test and, if not, whether there was another reason why the cancellation decision should be revoked. Having found that ZRTY did not pass the character test, the Tribunal posed the next question, namely whether there was another reason why the cancellation decision should be revoked, but indicated that it was unable to answer it.

36    Yet the Tribunal’s obligation was to make “the correct or preferable decision”. And it was required to do so on the material before it. See Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 68 (Bowen CJ and Deane J); Shi at [96]–[98] (Hayne and Heydon JJ). In the context of a s 501CA decision, it was for the applicant to put before the Tribunal any representations they wish the Tribunal to consider in deciding whether there is another reason the original decision should be revoked: Pennie v Minister for Home Affairs [2019] FCAFC 129 at [14] (Davies, Derrington and Colvin JJ); AEK20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 175 at [25] (Wigney, Abraham and Rofe JJ). See, too, Jokic at [6]–[9].

37    This principle applies equally to an applicant who has no legal representation as it does to one who is represented.

38    As the Full Court (North, Tracey and Mortimer JJ) explained in Beezley v Repatriation Commission (2015) 150 ALD 11 at [68]:

[B]efore a merits review tribunal (or a first instance decision-maker), a decision can only be made on the basis of relevant and probative material. The material must be probative of the matters for which the statute provides: see Minister for Immigration and Ethnic Affairs v Pochi (1980) 31 ALR 666; 4 ALD 139; 1A IPR 708; 44 FLR 41 per Deane J. If an applicant does not provide evidence and information sufficient to meet the statutory requirements, an applicant is unlikely to have the statutory power exercised in her or his favour. And unless and until a decision-maker is satisfied, or persuaded, that the requirements are met, then no occasion to exercise the power in favour of an applicant arises. In that sense, as a practical matter, it is not incorrect to say that a person “must satisfy” the requirements in the statute. To say that is not to impose an onus of proof on an applicant, but rather to recognise the operation of the legislative scheme under which the person seeks a benefit or interest: see generally, McDonald v Director-General of Social Security (1984) 1 FCR 354 at 356–7 and 358; 6 ALD 6 at 9–10 and 11 (per Woodward J), at FCR 366; ALD 19 (per Northrop J) and at FCR 369; ALD 21 (per Jenkinson J); Ward v Western Australia (WAG6006 1995 and WAG6002 of 1996) (1996) 69 FCR 208 at 215–8; 136 ALR 557 at 565–8; and Evans (as executor for the estate of the late Evans) v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (2012) 289 ALR 237; [2012] FCAFC 81 at [18] and the cases there cited.

39    ZRTY submitted that it could not be said that the Tribunal shirked its statutory duty to decide whether there was another reason to revoke the visa cancellation. Rather, he submitted, the Tribunal’s reasons focused on what it regarded as the crucial issues and “did not regard the other matters as material to its evaluative judgment” and that was an approach which was open to it. He contended that, “read fairly”, the Tribunal’s remarks at [41] “represented” another reason to revoke the cancellation decision. While he accepted that the Tribunal did not expressly address the considerations in Direction no. 90, he submitted that the obligation to consider a matter does not include an obligation to make a finding. He noted that the Tribunal was clearly aware that it was bound by the Direction and submitted that it was for the Tribunal to determine what was relevant in the circumstances. He suggested that the Tribunal was focused on “the consideration of the impediments if removed” because it treated this consideration as the decisive one, observing that the weight to be accorded to any particular consideration was a matter for the Tribunal.

40    I cannot accept these submissions. Of course, the Tribunal’s reasons must be read fairly and as a whole. But the submissions invite the Court to reconstruct the reasons and to ignore the parts that do not support it. To state, as the Tribunal did at [41], that “to contemplate returning [ZRTY] to Italy or Morocco without such treatment significantly bears of [sic] the question whether there is another reason to revoke the cancellation of his visa” is not to conclude that there is another reason to revoke the cancellation decision. It is merely to recognise that the risk of harm in either of his countries of nationality was a relevant consideration to which weight should be given. At no point in its reasons did the Tribunal purport to weigh the various considerations in the balance. It made its position clear at [6] of its reasons. It erroneously believed that it was unable to do so.

41    It is plain on the face of the reasons (read fairly and as a whole) that the Tribunal did not undertake the task required of it. Rather, it remitted that task to the Minister’s Department. That amounted to a constructive failure to exercise jurisdiction. As Gaudron J observed in Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 at [80] (footnotes omitted):

The classic statement as to what constitutes constructive failure to exercise jurisdiction is that of Jordan CJ in Ex parte Hebburn Ltd; Re Kearsley Shire Council [(1947) 47 SR (NSW) 416 at 420]. That statement, which has been approved by this Court on numerous occasions identifies a constructive failure to exercise jurisdiction as occurring when a decision-maker “misunderstand[s] the nature of the jurisdiction which [he or she] is to exercise, and ... appl[ies] ‘a wrong and inadmissible test’... or ... ‘misconceive[s his or her] duty,’ ... or ‘[fails] to apply [himself or herself] to the question which the law prescribes’ … or ‘... misunderstand[s] the nature of the opinion which [he or she] is to form’”.

42    That is precisely what occurred here. At the very least the Tribunal failed to apply itself to the question the law prescribed or misconceived its duty. An error of this nature is indisputably jurisdictional: see, for example, Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at [31] (Gleeson CJ, Gaudron and Hayne JJ). While the Tribunal correctly identified the question it was required to answer, it failed to answer it. It was not in dispute that the Tribunal was entitled in an appropriate case to set aside the original decision and remit the matter to the Minister for reconsideration. But in order to set aside the original decision the Tribunal would have to be satisfied that there was a reason to revoke it in accordance with s 501CA(4)(b). And to reach that state of satisfaction it had to address the relevant considerations prescribed by Direction no. 90 and weigh them in the balance. It could not set aside the decision under review until and unless it had undertaken this exercise on the material it was given. Whatever its misgivings might have been, it was not relieved of that responsibility by a lack of persuasive evidence in favour of revocation.

43    Contrary to the submissions made on ZRTY’s behalf, the Tribunal did not comply with the Direction. Rather, it proceeded on the basis that it had insufficient material before it to engage in the exercise required of it by the Direction. Having accepted that ZRTY failed the character test, it did not go on to decide whether there was another reason to revoke the cancellation decision. It left that decision to the Department. Instead of taking the relevant considerations into account and weighing them in the balance as it was required to do under the Direction, it lamented the lack of evidence that might have assisted ZRTY’s case and, as the Minister put it in his written submissions, ruminated about what steps might be taken to obtain additional information to enable another decision-maker to determine whether there was another reason to revoke the cancellation decision. That is, with respect, obvious from what the Tribunal said, for example at [14] (“consideration could be given by a decision-maker to revoking the cancellation of his visa and releasing him from detention if he in fact has proper accommodation in some institution”); at [38] (“remitting the matter for reconsideration will also enable the [ZRTY’s] mother to set out a plan for him to be admitted to Jeffrey House or some other institution”); at [47] (“consideration may be given to Direction 90 in due course, including to family violence matters”); and at [48] (“further treatment of the [ZRTY] in Australia, when properly proved, will be highly relevant to the decision maker considering whether to revoke the cancellation of his bridging visa”).

44    In Commonwealth of Australia v Beale (1993) 30 ALD 68 at 70 Neaves J said that the power in s 43(1)(c)(ii) to set aside a decision under review and remit the matter for reconsideration may only be exercised “where, in order to give effect to the conclusions to which the [T]ribunal has come, it is appropriate to set aside the decision under review but the [T]ribunal is not in a position to formulate a decision in substitution for the decision set aside”. In Minister for Immigration and Multicultural Affairs v Perth City Mission [2000] FCA 397 at [23], after referring to Beale, Lee J explained that s 43(1)(c)(ii) “is directed to a circumstance where the decision under the enactment has not been made” and “the Tribunal is of the view that it is unable to make the decision required by the enactment, for example, where a requirement or condition must be satisfied before a decision can be made”, citing Re SLE Medical Pty Ltd and Industry Research and Development Board (1988) 19 ALD 215; 10 AAR 13, a decision of the Tribunal. His Honour went on to say that the terms of the provision “enable the Tribunal to assist the decision-maker to whom the matter is returned by offering ‘directions or recommendations’ that appear to be appropriate on the material before the Tribunal”.

45    SLE Medical was a very different case from the present one. That case involved an application for review of a decision of the Australian Industrial Research and Development Incentives Board made under the Industrial Research and Development Incentives Act 1976 (Cth) that an employee of a company who was engaged in industrial research not be approved as fit to carry out the research. The power of the Board to approve an employee derived from s 7(1) of the Act and was exercisable only if the Technical Standing Committee (or its replacement following an amendment to the Act) had recommended approval. That was said to be “an essential prerequisite to the exercise of the power” (at 222). As the Tribunal stands in the shoes of the board, the same limitation applied to the Tribunal. Thus, the Tribunal observed, while it had the power to review the decision of the board and found the decision to be invalid, in the absence of an appropriate positive recommendation it could not affirm, vary or make a decision in substitution for the decision under review (at 222–3). Consequently, the Tribunal set aside the invalid decision and remitted it to the Board with a direction that no further action be taken in respect of it.

46    In the present case my attention was not drawn to any authority for the proposition that the Tribunal was entitled to set aside a decision under review and remit it for reconsideration to the original decision-maker because of a perceived lack of evidence about some relevant matters.

47    As the Minister submitted:

It is unclear from the Tribunal’s reason why the Tribunal seemingly considered itself unable to determine whether or not there was another reason to revoke the visa cancellation having regard to the evidence that was before it. The Tribunal had before it in evidence in excess of 1,000 pages that comprised the “G-documents” and “supplementary G-documents”. It heard oral evidence from both the first respondent and his mother. The Tribunal appeared concerned that some of the medical and immigration detention records were not current to the date of its decision. However, the Tribunal did not explain why the “absence” of such records prevented it from making a decision either to affirm the decision under review or to set aside the decision under review and substitute a decision.

48    The Tribunal did not identify with any precision the “several relevant matters” about which it felt it was not possible to be satisfied. The matters it was obliged to take into account were ZRTY’s representations and the considerations identified in Direction no. 90, to the extent that they were relevant. Those considerations are set out in Part 2 of the Direction.

49    In exercising the discretion to revoke the original decision, section 6 states:

Informed by the principles in paragraph 5.2, a decision-maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.

50    The Tribunal did not advert to para 5.2 or refer to any of the principles contained in it.

51    Section 7 describes the approach the decision-maker must take. It provides:

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

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

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

52    The primary considerations are listed in section 8. They are:

(1)    protection of the Australian community from criminal or other serious conduct;

(2)    whether the conduct engaged in constituted family violence;

(3)    the best interests of minor children in Australia; [and]

(4)    expectations of the Australian community.

53    There was a wealth of material before the Tribunal bearing on the first and second considerations. Evidence in relation to the fourth was not required. The expectations of the Australian community are those explicitly identified in para 8.4 of the Direction. ZRTY’s representations made it clear that the third was not relevant.

54    In para 8.1 the Direction goes on to explain what is required of a decision-maker in relation to the protection of the Australian community. It opens with the following two instructions:

(1)    When considering protection of the Australian community, decision-makers should keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.

(2)    Decision-makers should also give consideration to:

a)     the nature and seriousness of the non-citizen’s conduct to date; and

b)    the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.

55    The considerations in para 8.1(2) are expanded upon at paras 8.1.1 and 8.1.2 and 8.2, which deals specifically with the serious concerns of the Government about non-citizens who engage in family violence remaining in Australia.

56    In para 8.1.2 the Direction states:

(1)    In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.

(2)    In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:

a)    the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and

b)    the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:

i)    information and evidence on the risk of the non-citizen re-offending; and

ii)    evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).

c)    where consideration is being given to whether to refuse to grant a visa to the non-citizen – whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.

57    No consideration was given to any of these matters.

58    Other considerations which the Tribunal was required to take into account, where relevant, are listed in section 9. They include (but are not limited to):

a)    international non-refoulement obligations;

b)    extent of impediments if removed;

c)    impact on victims;

d)    links to the Australian community, including:

i)    strength, nature and duration of ties to Australia;

ii)    impact on Australian business interests

59    The Tribunal adverted to some of these considerations but did not suggest that it was not possible to be satisfied about them.

60    It is implicit, if not explicit, in the Tribunal’s reasons that it was concerned about the lack of evidence of ZRTY’s rehabilitation and the impediments to his removal. These were the two matters that vexed the Tribunal. It was also concerned about his mental illness and his need for treatment. These matters were at the heart of ZRTY’s representations.

61    It is evident from its reasons that the Tribunal was sympathetic to ZRTY, believed that the Minister or his Department had denied him the opportunity to obtain that treatment and to rehabilitate himself, and thought he should have that opportunity. It considered that could be achieved by setting aside the delegate’s decision which would buy ZRTY some time. It provided advice or guidance to a future decision-maker about what could be done. So much is clear from [14]–[15] of the reasons, where the Tribunal remarked:

14.    Consideration could be given by a decision-maker to revoking the cancellation of his visa and releasing him from detention if he in fact has proper accommodation in some institution, where there is reason to believe that he may be rehabilitated from his drug addiction and given consistent counselling to ensure that he takes his medication, and given him such other treatment as is available for his schizophrenia.

15.    His addiction to ice seems to have been maintained at Villawood, because ice is available there. The G documents do not suggest that any steps to rehabilitate the applicant from his drug addiction have taken place in Villawood.

62    Had the Tribunal undertaken the task required of it, one would expect it to have at least adverted to the primary considerations. But the Tribunal’s reasons make no mention anywhere in its reasons of the matters in para 8.1(1) of the Direction. They contain no reflection on the seriousness of ZRTY’s offending. The only mention of the nature of the offences appears at [46]. Quite apart from the fact that they understate the nature and extent of the offending, the Tribunal’s remarks at [46] do not purport to engage with this primary consideration. The only risks to which the Tribunal refers are the risks ZRTY might face if required to return to Italy or Morocco. The Tribunal did not address the risk to the Australian community if ZRTY were to reoffend or the prospect that he might reoffend.

63    It was possible for the Tribunal to give consideration to all the relevant considerations the subject of the Direction. It seems that it was not possible for the Tribunal to be satisfied that there was any, or any sufficient, evidence of rehabilitation. But a difficulty of this kind is commonplace. It did not entitle the Tribunal to decline to answer the statutory question, set the original decision aside and remit it to “the Department” “for reconsideration”. In Jokic, where the same error appears to have been made, Jagot J held at [14]:

The Tribunal is not bound to remit a matter for further information to be obtained by the Minister merely because the Tribunal considers that there is insufficient information for it to consider the considerations made relevant by Direction 79. The Tribunal was in error in so stating at [19]. The fact that Direction 79 includes mandatory relevant considerations does not mean that when the Tribunal has insufficient information to enable such consideration that the Tribunal is bound to require further investigations to be undertaken. The Tribunal is entitled to find that it cannot make any finding about a relevant consideration in such circumstances, recognising that it is essentially for the person seeking revocation of the visa cancellation to put such information as the person sees fit before the decision-maker to persuade the decision-maker to revoke the original decision.

64    As the Minister submitted, the Tribunal was required to engage in a consideration of the material before it, rather than speculate about what other material might be in existence or might later be obtained. Provided that the available material is assessed conscientiously, in the event of a paucity of material about a particular relevant consideration the Tribunal is entitled to conclude that that consideration weighs neither for nor against revocation: Paerau v Minister for Immigration and Border Protection (2014) 219 FCR 504 (FC) at [27] (Buchanan J); [117]–[118] (Perry J). Nothing in the Migration Act or the Direction requires that the Tribunal’s decision be to any particular standard or provides that it can only make a determination if it considers it has “sufficient information or evidence to make an optimal or ‘proper’ determination”: Paerau at [71] (Barker J). In this respect, Direction no. 90 is no different from Direction no. 55 with which Paerau was concerned.

65    Similarly, in He v Minister for Immigration and Border Protection (2017) 255 FCR 41 at [76] the Full Court (Siopis, Kerr and Rangiah JJ said:

In our opinion, the requirement that the Tribunal “consider” the circumstances in reg 1.15A(3) means that the Tribunal is required to make findings upon each of the prescribed matters numbered with Roman numerals. The nature of these specific matters is such that each of them poses, in effect, a question or questions for the Tribunal. For example, in respect of “the nature of the household”, the Tribunal must ask:

(i)    whether there are children and whether there is any joint responsibility for their care and support;

(ii)    what the living arrangements of the persons are; and

(iii)    whether and to what extent there is sharing of the responsibility for housework

The regulation poses these questions in order to ensure that the Tribunal takes into account particular circumstances of the marriage as part of the active mental process involved in giving proper, genuine and realistic consideration to the prescribed matters. The legislative intention must be that these questions will be answered, not merely thought about. They must be answered so that the circumstances identified by the answers are included in the evaluation of whether there is a “married relationship”. In some cases, the Tribunal's answer may be that there is no material, or insufficient material, to be able to form a conclusion on a prescribed matter: cf Paerau at [27], [69] and [119]. However, there must be an answer, or, in other words, a finding, even if the finding is that no conclusion can be reached upon the matter.

66    As Jagot J observed of the Tribunal’s approach in Jokic at [19], the Tribunal’s approach in the present case involves a “misunderstanding of the legal position … sufficient … to vitiate the Tribunal’s decision for jurisdictional error”.

67    In any event, in the present case there was not a paucity of material about the relevant considerations, only a paucity of material in ZRTY’s favour.

68    It is clear that the Tribunal misunderstood the nature of its task. Further, having regard to the statutory scheme, it was not open to the Tribunal in the circumstances in which it found itself to avoid making a decision because it was unable to be satisfied about certain matters, lacked up-to-date evidence on those matters, or in order to allow ZRTY to undergo treatment for his drug addiction or schizophrenia or embark on the process of rehabilitation.

Did the Tribunal mistakenly assume that the Minister or his Department had a duty to obtain information that might benefit an applicant’s case (ground 2)?

69    It was not in dispute that neither the Minister nor his Department has a duty to obtain information of this nature. The Minister, whether acting personally or through a delegate, has no duty to make inquiries or conduct investigations on behalf of a person whose visa has been cancelled. As I said earlier, it is for the applicant for revocation of a cancellation decision to put before the relevant decision-maker the material he or she wishes to be considered. That is the effect of the statutory scheme. See Minister for Immigration and Border Protection v Maioha (2018) 267 FCR 643 at [48]–[50] (Rares and Robertson JJ).

70    But I am not satisfied that the Tribunal assumed that the Minister or his Department had a duty to obtain information beneficial to ZRTY’s case. Rather, it appears that the Tribunal set the decision aside and remitted it to the Department so that the IHMS and up-to-date Serco records could be considered, arrangements could be made for ZRTY to obtain treatment, and ZRTY’s mother and/or others acting on his behalf could build a more persuasive case for revocation. As I have already explained, it was not open to the Tribunal to take this course.

71    ZRTY acknowledged the Tribunal’s remarks at [38] about what could be achieved if the matter were remitted for reconsideration, but submitted that this was not “the operative part” of its reasoning. He submitted that the operative part of the Tribunal’s reasoning was to be found in the preceding paragraph [37], where it “confirmed” the consequences he would face if the visa cancellation were not revoked and returned to it at [41]. For the reasons given above in relation to the first ground of review, I cannot accept this submission.

Materiality

72    Counsel for ZRTY argued that, even if the Tribunal erred as alleged, the errors were not material to the outcome. They submitted that the strength of the Tribunal’s findings concerning the hardship he would face in Italy or Morocco were such that there was no realistic possibility of a different decision. While in some cases it will be necessary for an aggrieved party to establish that an error is material before it can be regarded as jurisdictional, in the present case I doubt whether the Minister was required to do that. Here, there was a constructive failure to exercise jurisdiction. As I observed above at [43], that is a jurisdictional error. Compare, too, Nathanson v Minister for Home Affairs [2022] HCA 26; 403 ALR 398 at [86] (Gordon J).

73    In any case I reject the argument. The extent of the Minister’s onus is “no greater than to show that, as a matter of reasonable conjecture within the parameters set by the historical facts established on the balance of probabilities, the decision could have been different” (emphasis in original) if the error or errors had not been made: Nathanson at [45]–[47] (Gageler J). See, too, [32]–[33] (Kiefel CJ, Keane and Gleeson JJ). The burden of establishing that an error of the kind that occurred in this case was material is “not onerous”: Nathanson at [47] (Gageler J). As Colvin J observed in Ba v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1271 at [52], citing Nathanson:

In cases where it is evident from the nature of the decision or the reasoning pathway supporting its exercise or some other evidence adduced by the party seeking review for jurisdictional error that as a matter of reasonable conjecture the decision could have been different then the requirement for materiality is met[.]

74    It stands to reason here that, if the Tribunal had conducted the task required of it, the result could have been different. I must assume that the Tribunal, “acting fairly and reasonably, with a mind open to persuasion, would give active and genuine consideration to all matters relevant to its review, including [those] matter[s] which [were] erroneously omitted, or [which it] misconceived, and which caused it to exceed its jurisdiction”: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v FAK19 (2021) 287 FCR 18 at [174] (Kerr and Mortimer JJ), Allsop CJ agreeing at [1] . If the Tribunal had approached the matter with an open mind, applied itself to the statutory task and adhered to the requirements in Direction no. 90 by taking into account and giving appropriate weight to all relevant mandatory and other considerations, it might well have concluded that it had no alternative but to affirm the decision.

Conclusion

75    For these reasons, the Minister’s application must succeed and the relief he seeks granted.

Associate:

Dated:    15 December 2022