Federal Court of Australia

Fuller v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 65

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time is dismissed.

2.    The applicant must pay the first respondent's costs of the application on a lump sum basis.

3.    On or before 4.00 pm AWST on 22 February 2023, the parties must file any agreed minute of proposed orders fixing a lump sum in relation to the first respondent's costs.

4.    In the absence of any agreement having been reached, the matter of an appropriate lump sum figure for the first respondent's costs is referred to a Registrar for determination.

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

REASONS FOR JUDGMENT

JACKSON J:

1    The applicant, Mr Fuller, is a national of New Zealand who came to Australia in 1987. He has accrued an extensive criminal record. He never obtained Australian citizenship, and so was in Australia under a visa. In September 2020 he was convicted of crimes for which he was sentenced to terms of imprisonment totalling more than 12 months. A delegate of the first respondent (Minister) cancelled the visa, as was required under s 501(3A) of the Migration Act 1958 (Cth). Mr Fuller made representations as to why the cancellation should be revoked but, under s 501CA(4), a delegate of the Minister decided not to revoke it. Mr Fuller sought review in the Administrative Appeals Tribunal, which affirmed the delegate's decision. Mr Fuller now seeks judicial review of the Tribunal's decision. He was about four months out of time in filing his application for judicial review, and so requires an extension of time.

2    Mr Fuller is self-represented in this Court. His proposed grounds of judicial review are as follows:

1.    The Tribunal did not take proper consideration about my ties to the Australian Society.

2.    The Tribunal did not investigate my kids and grandkids' situation comprehensively.

3.    I have lived all my life here. I am basically Australian.

3    In addition to those grounds counsel for the Minister has, properly, identified a potential error in how the Tribunal dealt with the weight to be given to possible impediments Mr Fuller would face on return to New Zealand. But for the following reasons, neither that nor any of Mr Fuller's stated grounds have prospects of success sufficient to justify an extension of time, so the application will be dismissed.

Factual background

4    Mr Fuller is 52 years old. He was 16 when he came to Australia with his parents. He has not been back to New Zealand or otherwise outside Australia since then. His parents and all other persons he is close to live here, and he has only distant relatives in his country of origin.

5    Mr Fuller has been convicted of over 100 offences since coming to Australia. The Tribunal found that these included (para 250):

hindering police, assault, providing a false name and address, various driving offences, driving unregistered vehicles, driving uninsured vehicles, aggravated assault, disorderly behaviour, failing to comply with a restraining order, being armed with an offensive weapon at night, stealing, damage to property and driving with a prohibited drug in blood.

6    Mr Fuller's first recorded conviction was for assault, and the Tribunal found (para 253) that his offending 'was serious from the start'. The first recorded conviction was in October 1988, when he was 17. According to the Tribunal, Mr Fuller admitted in cross examination that he has a history of violent offending, including aggravated assaults against women and assaults against police officers in performance of their duty. He also admitted that he has a history of breaching domestic violence orders, breaching bail, and failing to comply with the terms of a suspended sentence.

7    Before the Tribunal, Mr Fuller agreed that he had been using methylamphetamine almost daily for ten years and 'that his habit grew to the point that he used much [sic] as he could get' (para 88). The Tribunal accepted, however, that at the time of the hearing before it, Mr Fuller had not used drugs for about two years, although he agreed that this was explicable on the basis that he had been incarcerated during that time.

8    The offences which led to the cancellation of Mr Fuller's visa were aggravated robbery and supply of cannabis in less than a commercial quantity, for which (after appeal) he was sentenced to a total term of imprisonment of two years 11 months.

9    The visa was cancelled in October 2020. The decision not to revoke that cancellation was made on 16 November 2021. The Tribunal held a hearing on 9 February 2022 and affirmed the decision not to revoke on 18 February 2022. Mr Fuller's application for an extension of time to seek judicial review was accepted by this Court on 29 July 2022, some four months after the expiry of the 35 day time limit for such applications imposed by s 477A of the Migration Act.

Relevant considerations for an extension of time

10    The Court has power to grant an extension of time under s 477A of the Migration Act if an application for that order has been made in writing specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order, and if the Court is satisfied that it is necessary in the interests of the administration of justice to do so: s 477A(2). On its face, the power is unfettered save, in substance, by the requirement for the Court to form that state of satisfaction. The interests of the administration of justice comprise the sole mandatory relevant consideration: see Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28 at [11]-[12] (Kiefel CJ, Gageler, Keane and Gleeson JJ), [35], [39], [62] (Gordon, Edelman and Steward JJ). The requirement that an extension of time be 'necessary in the interests of the administration of justice' is 'deliberately broad', as is the discretion that the provision confers: Katoa at [36], [39]-[40]. The two judgments in Katoa each gave a similar, evidently non-exclusive list of matters to which the Court may have regard:

… the length of the applicant's delay, the reasons for the delay, prejudice to the respondent, prejudice to third parties and the merits of the underlying application.

(Kiefel CJ, Gageler, Keane and Gleeson JJ at [12])

and

… the length of the delay; the explanation for the delay; any prejudice to the administration of justice as a result of the delay; and the prospects of the applicant succeeding in the application or the 'strength or weakness of the case … sought to be advanced and the utility of advancing that case'.

(Gordon, Edelman and Steward JJ at [40], footnotes removed)

11    As far as the merits of the underlying application go, it will often be appropriate to assess them at a reasonably impressionistic level because, depending on other relevant factors, 'the interests of justice are likely to be advanced by granting an extension of time to an application with some merit': Katoa at [17]. This has also been described as considering the merits at 'a threshold level - inquiring whether the proposed grounds of review enjoy reasonable prospects of success': Katoa at [62]. But it is within the Court's jurisdiction under s 477A(2) to have regard to the merits in such manner as it considers appropriate in the circumstances: Katoa at [19] and see also [40], [62]. For reasons given by Gordon, Edelman and Steward JJ at [46]-[61], it will not be a jurisdictional error for the Court to conduct a substantive rather than impressionistic assessment of the merits of a proposed application: see also [63]. There will be circumstances where it is appropriate to engage in more than an impressionistic assessment and circumstances where it is necessary to have regard to the merits of the underlying application in greater detail: Katoa at [18], [63].

Explanation for delay and prejudice

12    Mr Fuller has sworn an affidavit in which he gives the following explanation for the delay in filing an application in this Court:

2.    I applied for my merits review on time before but unfortunately, I did it all wrong. I used the wrong forms, and I was denied the application because it was invalid. When I tried to do another application to the Courts. I applied to the Federal Circuit instead of the Federal Court. The application was invalid too.

3.    I do not have any legal experience, and this is my first time doing it.

13    The only documents annexed to the affidavit to support this constitute an email exchange with the registry of this Court on 8 and 9 June 2022, in which an officer of the Court told Mr Fuller that he had filed the application in the wrong court and gave him assistance by attaching the correct forms. However, the Minister expressly makes no submission on the explanation for the delay, and so takes no point about the relative paucity of specific evidence, or the delay between 9 June and 29 July 2022, when the application was accepted for filing. I will proceed on the basis that the explanation is an adequate one in Mr Fuller's circumstances.

14    Nor does the Minister point to any prejudice he or anyone else will suffer if an extension of time is granted. The Minister opposes the extension of time on the basis that neither Mr Fuller's proposed grounds, nor the additional possible ground identified by the Minister, have prospects of success.

Relevant aspects of the Tribunal's decision

15    If an extension of time were to be granted, Mr Fuller would need to establish jurisdictional error in order for the Court to have power to quash the Tribunal's decision: see Migration Act s 476A (read with definition of 'privative clause decision' in s 474); Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476 at [75]-[78]; Khalil v Minister for Home Affairs [2019] FCAFC 151; (2019) 271 FCR 326 at [43].

16    In order to assess the prospects of success of Mr Fuller's proposed grounds of review it is necessary to describe certain aspects of the Tribunal's decision. Broadly, the grounds complain about the Tribunal's treatment of Mr Fuller's ties to Australian society and its treatment of the situation of his children and grandchildren, and to the asserted fact that he has lived here 'all my life', which on the evidence must be taken to refer to his late teenage years and entire adult life.

17    Mr Fuller expanded on this last point in particular in his oral submissions. However, as I sought to explain to him at the hearing, it is not the function of this Court to consider such matters on their merits, as important as they may be to him. The function of the Court is to determine whether the Tribunal committed jurisdictional error. Mr Fuller's oral submissions therefore did not advance his position on the application for an extension of time.

18    Another matter Mr Fuller raised was what appeared to be a recently promulgated ministerial direction which, he submitted, said that the government would take into consideration connections to Australia that outweigh connections to New Zealand. However in considering Mr Fuller's application in February 2022 the Tribunal was required (under s 499(2) of the Migration Act) to apply, not that more recent direction, but Direction No. 90 - Migration Act 1958 - Direction under section 499 - Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction 90).

19    So it is the terms of Direction 90 that are relevant here. The direction required the Tribunal to treat as primary considerations 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. An overview of Mr Fuller's criminal record appears above. The Tribunal found that the protection of the Australian community weighed substantially against revocation of the cancellation of Mr Fuller's visa. Similarly, it found that the expectations of the Australian community weighed heavily against the revocation of the cancellation of the visa. Mr Fuller has not criticised these conclusions. The Tribunal also found that family violence was not a relevant consideration.

The interests of children under 18

20    The Tribunal did give consideration to the interests of minor children. Although Mr Fuller's children are all adults, he does have a teenage niece and nephew with whom he has a relationship, and he also has grandchildren through his daughter, whom the Tribunal called Ms C. In relation to the grandchildren, the Tribunal summarised Mr Fuller's evidence as being that he does not have a relationship with them but is keen to establish one. But he has limited contact with Ms C and she does not have custody of his grandchildren in any event. The evidence about his relationship with the relevant niece and nephew (there are others with whom he has no relationship) was that 'he often kicks a ball outside with them and goes to school sports events' (para 300). The Tribunal found that there was no evidence that he would play an important role in the lives of any of those children. It accepted that they would be saddened were he to return to New Zealand, but did not find an adverse impact beyond that. Overall, then, the Tribunal gave the primary consideration of the best interests of minor children 'a little weight' (para 317) in favour of revocation of the cancellation of the visa.

Impediments on return to New Zealand

21    Direction 90 required the Tribunal to take other considerations into account where relevant. The only two that were relevant were the extent of the impediments that the non-citizen may face if removed to their home country in establishing themselves and maintaining basic living standards, and the strength, nature and duration of ties to Australia. As has been said, counsel for the Minister identified a potential error in the Tribunal's treatment of the first of these. The Tribunal considered Mr Fuller's ability to obtain work in New Zealand and found that there was nothing to suggest that he could not pursue work in the road construction industry in that country. It therefore said (at para 341):

The Tribunal accords this consideration no weight against [sic] revocation of the cancellation of the applicant's visa.

22    Then the Tribunal found that there would be no substantial cultural or language barriers to Mr Fuller establishing himself in New Zealand, that there was no suggestion he would require substantial social, medical and/or economic support or that he would be denied such services if he did. It accepted, however, that he no longer had any important family ties in New Zealand and that any relatives would not support him if he returned. It accepted that there would be a period after his return where he will need to establish himself, including finding accommodation and work, and that although there was no reason to suspect that he would not be successful in those things, it may take time. So, the Tribunal said (at para 346):

To that extent the Tribunal finds that this consideration weighs slightly in favour of revocation of the cancellation of the applicant's visa.

23    Later, however, at the end of its reasons for decision when it was summarising and weighing up the various considerations it had addressed, the Tribunal said (at para 391):

Of the relevant Other Considerations contemplated by the Direction, the Tribunal finds that Other Consideration 1 - Extent of impediments to the applicant if he is removed is of no weight in favour of the revocation of the cancellation of the applicant's visa.

24    I will return later to the apparent tension between, on the one hand a finding that while one aspect of the consideration bore 'no weight against revocation' another weighed 'slightly' in favour of revocation of the cancellation, and on the other hand the conclusion that the consideration as whole 'is of no weight in favour of the revocation'.

Ties to Australia

25    As to the strength, nature and duration of ties to Australia, it was under that heading that the Tribunal considered Mr Fuller's relationship with his adult children. There are four, all of whom are Australian citizens. Three of them provided evidence to which the Tribunal had regard; Ms C did not. The Tribunal summarised the evidence of the other three as follows:

353.    There is no doubt that Ms A regards her father's support as important to her and she is concerned about the negative effect his removal to New Zealand may have on her.

354.    Ms D also views her father as being an important support in her difficult life.

355.    Mr B has only met his father relatively recently, but the Tribunal accepts that he is keen to explore a close relationship with his father and does not believe that he would be able to do so if the applicant is in New Zealand.

356.    All three of these people have expressed interest in living with the applicant if he moves to Town Z in WA, as he proposes to do if this application is successful.

26    The Tribunal accepted that Mr Fuller's removal to New Zealand would probably have a negative impact on those three of his children and accorded that significant weight.

27    After considering other matters that are not relevant to the proposed grounds of review, the Tribunal addressed the length of time Mr Fuller had been in Australia as follows (footnotes removed):

366.    Subparagraph 9.4.1(2) directs the Tribunal to consider the strength, nature and duration of any other ties that the applicant has to the Australian community.

367.    At 9.4.1(2)(a) it requires the Tribunal, in doing so, to have regard to the length of time that the applicant has resided in Australia, including whether the non-citizen arrived as a child. Subparagraph 9.4.1(2)(i) provides that less weight should be given to that consideration where the applicant began offending soon after arriving in Australia. Subparagraph 9.4.1(2)(ii) provides that more weight should be given to time the non-citizen has spent contributing positively to the Australian community.

368.    The applicant arrived in Australia when he was just over 16 years old in November 1987. For the purposes of this consideration the Tribunal is satisfied that he was young when he arrived.

369.    The National Criminal History Check suggests that the applicant's offending history in Australia started with a conviction for assault and hinder police in October 1988.

370.    Although it is not clear whether that date is the date of the offending or of the conviction, the Tribunal is satisfied that the applicant began offending soon after he arrived in Australia.

371.    Although there is little evidence of positive contribution to the Australian community by the applicant, there is evidence that he has worked in various occupations and also evidence that his children have had substantial support from him.

372.    The Tribunal also notes that while in prison he helped tutor other inmates, which weighs in his favour.

373.    The Tribunal is satisfied that the applicant has resided in Australia for over 33 years which is a long time.

374.    On balance, the Tribunal gives little weight in favour of the application to the length of time that the Applicant has spent in Australia due to the length of his offending and the limited evidence of his positive contribution to the Australian community.

28    The Tribunal then addressed other aspects of Mr Fuller's ties to Australia in the following passage:

375.    Subparagraph 9.4.1(2)(b) directs the Tribunal to have regard to the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.

376.    The Tribunal notes that the applicant has extensive family ties to the Australian community and that his parents, siblings, grandchildren, nephews, and nieces are all Australian citizens or permanent residents.

377.    The Tribunal further notes that the applicant has provided evidence showing links to Ms J, Ms X, Mr W, Ms Y and Mr Z.

378.    There is no doubt that all of these people strongly believe that it is their best interests, and in the best interests of the Australian community, that the applicant be allowed to remain in Australia.

379.    The Tribunal also has regard to evidence, particularly from Ms J and Mr B that suggests that the applicant has strong ties to Indigenous Australians.

380.    Ms J suggests that the applicant has been accepted by Indigenous communities to the extent that he has been accorded a status comparable to 'son in law'. However, the applicant himself does not identify as an Aboriginal Australian.

381.    Further, the evidence suggests that the Indigenous Australians to whom the applicant has links do not propose to go with him to New Zealand if he returns so the applicant's removal will not cause them to lose their connection to country.

382.    The Tribunal has weighed the evidence relating to the applicant's links to the Australian community and had regard to the directions set out in paragraph 9.4 of the Direction. The Tribunal is satisfied that the applicant's family and some other Australians will be distressed and perhaps materially disadvantaged by his removal to New Zealand.

Ms J is, or was, Mr Fuller's partner, and Mr B is his adult son. The other pseudonyms in the passage refer to friends or others with whom Mr Fuller has had friendly or supportive relations.

29    At para 386 the Tribunal said:

In view of the applicant's family and other links to the Australian community, the Tribunal finds that the consideration set out at 9.4 weighs in favour of the revocation of the cancellation of the applicant's visa and accords it significant weight.

Tribunal's conclusion

30    The Tribunal concluded its decision by summarising its findings on the various considerations it had identified and addressed and saying:

394.    Having weighed the considerations together and considered all of the evidence to which it has been directed, the Tribunal finds that the Protection of the Australian Community and the Expectations of the Australian Community outweigh the remaining Primary Considerations and the Other Considerations.

395.    Therefore, the Tribunal is not satisfied that the discretion to revoke the mandatory cancellation of the applicant's visa should be exercised.

Consideration of merits of the proposed grounds of review

31    In the circumstances of this case it is not necessary to take consideration of the merits of the proposed grounds of review beyond an impressionistic or threshold level, where the question can be expressed as whether the grounds have reasonable prospects of success.

Grounds of review about ties to Australia

32    It is convenient to consider grounds 1 and 3 together: they comprise a contention that the Tribunal did not give proper consideration or, possibly, proper weight, to Mr Fuller's ties to Australia, including the fact that he has lived in Australia since he was a teenager. His oral submissions supplemented that by emphasising that he has no close family in New Zealand and would have no one there on whom he feels he could call for help.

33    Direction 90 required the strength, nature and duration of ties to Australia to be taken into account in Mr Fuller's case, in accordance with the provisions of para 9.4.1 of the direction: see para 9(1)(d)(i). Under para 9.4.1(2), the Tribunal was required to consider the strength, nature and duration of any other ties that Mr Fuller has to the Australian community. That specifically requires that in doing so, decision makers:

must have regard to:

a)    how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:

i.    less weight should be given where the non-citizen began offending soon after arriving in Australia; and

ii.    more weight should be given to time the non-citizen has spent contributing positively to the Australian community.

b)    the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.

34    The High Court has criticised verbal formulae used in different contexts to describe the extent or quality of consideration required of statutory decision makers: Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 at [26]. For present purposes it is enough to apply the words of Direction 90: the Tribunal was required to 'take into account' Mr Fuller's ties to Australia and to 'consider' the strength, nature and duration of his ties to the Australian community. In the course of doing that it was required to 'have regard to' the time he had spent in Australia and how long after his arrival he began offending.

35    On the face of the passage quoted above at [27], the Tribunal did all those things to the extent required in order to perform the statutory task of considering whether there was 'another reason' why the original decision to cancel the visa should be revoked: s 501CA(4)(b)(ii). The Tribunal evidently was conscious of the fact that Mr Fuller had lived in Australia for most of his life. But it also relied on the fact that Mr Fuller began offending soon after he arrived in Australia, and on the relative lack of evidence that he had made a positive contribution to Australia, as reasons for putting little weight on the length of time he had lived here. In the course of doing so, it noted specific matters in Mr Fuller's favour, including his work in various occupations, the substantial support he had given his children and tutoring of other inmates in prison. That evidences due consideration of the materials before the Tribunal pertaining to proposed ground 3 and to an extent, proposed ground 1.

36    The same may be said of the next passage from the Tribunal's decision quoted at [28] above, in which it addressed Mr Fuller's family ties in Australia. That too is relevant to proposed ground 1. The Tribunal acknowledged the strength of those ties to a number of specifically identified people who are Australian citizens or permanent residents. That was in a context where it had earlier summarised the evidence of several of those people. It acknowledged the strong belief of those people that it was in their best interests that Mr Fuller be allowed to remain in Australia. It considered his links to Indigenous Australians. It was satisfied that Mr Fuller's family and others would be distressed and perhaps materially disadvantaged if he were to be removed to New Zealand. These matters caused the Tribunal to accord the overall consideration of links to the Australian community significant weight. All of this evidences due attention to the matters before the Tribunal that were relevant to that consideration.

37    Mr Fuller identified no fact or circumstance or substantial and clearly articulated argument that the Tribunal overlooked or misunderstood: see Plaintiff M1/2021 at [27]. It would not be a proper function of the Court to go through all the material that was before the Tribunal to seek to identify any such fact, circumstance or argument; it is not for the Court to make an applicant's case for him or her: BHK15 v Minister for Immigration and Border Protection [2016] FCA 569 at [15] (Logan J); Onyebuchi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1183 at [68] (Anderson J). The Court also relies on the duty of counsel and of the Minister as a model litigant to draw anything of potential significance to its attention; as has been mentioned, counsel for the Minister has done so in relation to a further matter, to be addressed shortly.

38    The Minister suggested that ground 3 could also be conceived of as asserting that the Tribunal did not apply para 5.2(4) of Direction 90, which says that 'Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age'. However the direction describes that paragraph as a principle which provides the framework within which decision-makers should approach the task of deciding whether to revoke the cancellation of the visa; it is not in itself a mandatory consideration to which the Tribunal was required to specifically avert: see NWQR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1077 at [25]-[30].

39    In any event, there is nothing in the Tribunal's reasons which suggests that it misunderstood or disregarded that principle as part of the framework for approaching its task. At para 368 (quoted above) it said it was satisfied that Mr Fuller was young when he arrived, but plainly it considered that the fact that he began to offend soon after his arrival still required little weight to be put on that. That specific application of para 9.4.1(2)(a) of Direction 90 is consistent with the principle at para 5.2(4) which reads, as a whole:

Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.

In substance, the Tribunal gave more weight to the principle enunciated in the first sentence than to the one in the second sentence. The Tribunal was not required to spell that out in its reasons.

40    The Minister also suggested that ground 3 could be understood as a contention that the decision was legally unreasonable. While it could indeed carry that implication, Mr Fuller articulates no basis to think that the decision was unreasonable, in the sense that an error is evident in the Tribunal's reasoning process or the outcome is one that lacks an evident and intelligible justification: see Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 at [66]-[76] (Hayne, Kiefel and Bell JJ), [88]-[92] (Gageler J). The evident justification here is that Mr Fuller's long record of offending requires his removal from Australia despite the length of time he has spent in this country and his resulting self-identification as Australian. While reasonable minds may differ as to whether that justification is sufficient, it is intelligible and it was open to the Tribunal to act on it.

41    In so far as Mr Fuller complains of the weight that the Tribunal gave to his ties to Australia, it is well established that the weight to be accorded to such considerations is a matter for the Tribunal: Plaintiff M1/2021 at [24]; Nahi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 29 at [29].

Ground 2 regarding the situation of Mr Fuller's children and grandchildren

42    At [20] above I have described the Tribunal's treatment, by reference to the primary consideration concerning the interests of children under 18, of the children in Mr Fuller's life who answer that description. The Tribunal found that Mr Fuller's relationship with his niece and nephew was not an especially close one and that he does not presently have contact with his grandchildren through his daughter, Ms C. Mr Fuller did not point to anything that suggested that the Tribunal's assessment of the importance of his relationship with those children was wrong, or that the quality of its consideration of the interests of those children was other than adequate.

43    As for Mr Fuller's adult children, at [25]-[26] above I have described the Tribunal's consideration of their interests, and how the Tribunal accorded significant weight to the negative impact on them of Mr Fuller's removal to New Zealand. The interests of Mr Fuller's children are also encompassed in the Tribunal's finding that Mr Fuller's family and others will be distressed and perhaps materially disadvantaged by his removal to New Zealand, which I have just addressed in connection with ground 1. There is no indication that the Tribunal overlooked or misunderstood any substantial fact, matter or argument. There is no reason to think that its conclusion, in all the above context, that significant weight should be accorded to Mr Fuller's links to his children and others reflected less than due consideration of their interests.

44    Mr Fuller's specific contention is that the Tribunal did not investigate his children's and grandchildren's situations comprehensively, but with one possible exception he has not pointed to any material before the Tribunal that it failed to consider and, once again, it is not for the Court to seek to identify that material for itself. The exception is that in oral submissions Mr Fuller appeared to allege that at the hearing before the Tribunal counsel for the Minister cut off Ms A 'quite quickly when she was trying to explain her health issues'. In his submissions he seemed to explain the cause of those issues and appeared to say that he was her only family support. But there was no transcript in evidence that would allow him to make good any suggestion that he was denied procedural fairness because his daughter was not given an opportunity to explain her health issues, and he referred to no other material to support a suggestion there were any health issues of significance that the Tribunal failed to consider. The Tribunal referred in its reasons to the cause of those health issues and the daughter’s evidence that Mr Fuller supported her through two years of court cases that ensued and gave her the strength to continue. It acknowledged later that the daughter regarded her father’s support as important to her and that she was concerned about the negative effect his removal to New Zealand may have on her. This evidences due consideration of the point that Mr Fuller referred to in his oral submissions.

45    For those reasons, none of Mr Fuller's proposed grounds of review have any apparent merit, and it would not be in the interests of the administration of justice to grant an extension of time in order for him to advance them.

The Tribunal's treatment of impediments on removal to New Zealand

46    I have described at [21]-[24] above the Tribunal's consideration of any impediments Mr Fuller may face if he is removed to New Zealand. It appeared to give no weight to one aspect of that and slight weight to another and yet, in conclusion it appeared to give no weight to the consideration as a whole.

47    The Minister submitted that the tension between these findings can be resolved by reading the ultimate conclusion that the consideration 'is of no weight in favour of the revocation of the cancellation of the applicant's visa' as a typographical error and that the word 'no' should be read as 'slight'. The Minister says that this will give the findings a harmonious reading, but that avoids the question of whether the decision is vitiated because they are, in fact, in conflict. An error of that kind is more than merely typographical - for example it goes beyond the presence of a stray 'no' in a sentence. Reading reasons without an eye finely attuned to the detection of error is not the same thing as reading them with an intent to correct such error as may appear on their face.

48    Nor do I accept the submission that the Tribunal should be understood to have decided that although one aspect weighed slightly in favour of revocation, collectively the consideration concerning impediments on return to New Zealand was to be given no weight. There is nothing in the text revealing that this is what the Tribunal did and if it did, there is no evident logical justification for it.

49    In truth there is simply a logical inconsistency between two of the findings, and no basis in the reasons to understand this as a mere slip in expression as distinct from an error of substance: cf. KXXH v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 111 at [65]. But it does not follow that it is a jurisdictional error. An error of that kind occurs only if the decision maker has breached an express or implied condition of a conferral of statutory decision making authority: MZAPC v Minister for Immigration and Border Protection [2021] HCA 17 at [30]. While rationality will inevitably be among such conditions (see e.g. Li at [26] (French CJ)), not every lapse of logic will give rise to jurisdictional error: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [130]-[131] (Crennan and Bell JJ).

50    In this case, to the extent that there was a lapse of logic, it lies in a logical inconsistency between two separate propositions in the Tribunal's reasons. That inconsistency does not invalidate the Tribunal's overall process of reasoning, or its ultimate decision. That process can be summarised as follows: Mr Fuller's record of offending was such that his visa was not to be restored to him, even though he may face some delay in establishing himself if he returned to New Zealand, and despite his strong ties to Australia. Whatever a different decision maker might have made of the same facts, it was an evaluative decision that was rationally open to the Tribunal. I do not consider that the logical inconsistency between two particular sentences in the reasons for decision was a breach of the implied statutory requirement that the decision be reached rationally.

51    If I am wrong about that, I would find in any event that the error was not material and so was not a jurisdictional error. In a case where materiality is in issue, an applicant will succeed if the outcome could have been different as a matter of reasonable conjecture: MZAPC at [38]. While that standard is undemanding (Nathanson v Minister for Home Affairs [2022] HCA 26 at [33]) no such reasonable conjecture is apparent here. Putting it at its highest in favour of Mr Fuller, if the Tribunal had not erred it would have given the impediments he will face on return to New Zealand slight weight, rather than no weight. It is impossible to see how that could have led the Tribunal to a different conclusion in the face of its expressed conclusions that the protection of the Australian community weighed substantially against revocation of the cancellation of the visa and that the expectations of the Australian community weighed heavily against revocation. That is so even allowing for the fact that the Tribunal did find that Mr Fuller's links to the Australian community weighed significantly in favour of revocation.

Conclusion

52    No reasonably arguable jurisdictional error is apparent on the face of the Tribunal's decision and the attention of the Court has not been drawn to any other material on which a conclusion of such error could be based. It would not be in the interests of the administration of justice to grant an extension of time to challenge the decision, so the application for an extension will be dismissed, with costs.

Associate:

Dated:    8 February 2023