Federal Court of Australia

Thompson v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 161

ORDERS

THE COURT ORDERS THAT:

1.    The decision of the Administrative Appeals Tribunal made on 16 November 2021 in matter 2021/5869 is quashed.

2.    The matter is remitted to the Administrative Appeals Tribunal for hearing and determination according to law.

3.    The first respondent is to pay the applicant’s costs as agreed or taxed, with such costs ultimately being payable directly to counsel for the applicant in accordance with r 4.19 of the Federal Court Rules 2011 (Cth).

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

REASONS FOR JUDGMENT

MCELWAINE J:

Introduction

1    The applicant applies in the original jurisdiction of this Court pursuant to s 476A of the Migration Act 1958 (Cth) (the Act) to review a decision of the Administrative Appeals Tribunal (Tribunal) affirming a decision of a delegate of the Minister under s 501CA(4) of the Act not to revoke the cancellation of the applicant’s visa (Class TY Subclass 444 Special Category (Temporary) granted on 15 November 1998) made under s 501(3A) of the Act. The applicant does not pass the character test at s 501(6) of the Act.

2    The applicant, who is also known as Luke Robins, was born in New Zealand in 1993 and was informally adopted at birth. He has had contact with his biological mother only once in his life and does not know the identity of his biological father. He was raised by an Australian and a New Zealand citizen.. He arrived in Australia in 1998. He has not since departed. He has three children born in 2010, 2018 and 2019. The first born has a different biological mother to the second and third. He is not the primary carer of any of his children, which is in part explained by his history of incarceration for various offences, commencing in 2010.

3    By an amended originating application for judicial review he contends that the Tribunal committed two jurisdictional errors:

1.    The [Tribunal] erred by incorrectly finding that a jurisdictional fact necessary to enliven the exercise of the Tribunal’s power under subsection 501CA(4) of the Migration Act 1958—that the Applicant was an “alien” within the meaning of s 51(xix) of the Constitution—existed.

2.    The [Tribunal] erred by failing to identify, understand and evaluate the Applicant’s representations that the following matters were reasons for revocation of the Applicant’s visa cancellation:

(a)    the Applicant was an Aboriginal Australian;

(b)    the Applicant had close connections with the Aboriginal Australian community;

(c)    the Applicant’s ex-partner, and the mother of two of his children, was an Aboriginal Australian; and

(d)    two of the Applicant’s children were Aboriginal Australian.

4    That application was authored by pro bono counsel, Mr P Jeffreys. The Court is always grateful for the assistance provided to persons who are otherwise unable to secure legal representation. Mr G Johnson and Ms M Jackson appeared for the Minister. All counsel conducted the proceeding with courtesy and efficiency.

5    The first ground raises a constitutional point and notice was given as required by s 78B of the Judiciary Act 1903 (Cth). Ultimately ground 1 was not pressed at the hearing.

6    The issue raised by ground 2 is whether the Tribunal failed to identify, understand and evaluate the applicant’s claim that, despite his inability to establish biological descent from the indigenous people (Mabo v Queensland (No 2) (1992) 175 CLR 1 (Mabo) at 70, Brennan J; Love v Commonwealth (2020) 270 CLR 152; [2020] HCA 3 at [76]-[79], Bell J; [191]-[192], Keane J; [366]-[368], Gordon J and [458], Edelman J) he identified as an Aboriginal Australian, has close connections to the Aboriginal community and produced evidence from an Aboriginal Elder in support of those claims.

7    For the reasons that follow, I have concluded that this ground is made out. The decision of the Tribunal must be quashed and the matter remitted for determination according to law.

Relevant background

8    Following the visa cancellation decision on 29 September 2020, the applicant was invited to make representations in accordance with s 501CA(3) of the Act and did so on 27 October 2020 pursuant to s 501CA(4) of the Act. On the pro forma document he answered no to the question whether he identified as an Aboriginal or Torres Strait Islander. He provided an extensive attachment in support of his contention that the Minister should be satisfied that there is another reason to revoke the cancellation: s 501CA(4)(b)(ii) of the Act. He did not mention his Aboriginal associations in that document. On 24 August 2021, a delegate of the Minister notified the applicant that the cancellation decision had not been revoked.

9    The applicant applied for review by the Tribunal on 25 August 2021. In due course, he provided a detailed typewritten statement dated 29 October 2021. In that document he said, amongst other things:

My children identify as Aboriginal and need to stay in their country and build that connection with the land. I understand that I did not meet the legal test of being recognised as an Aboriginal because I cannot prove whether or not I am biologically descended from an Aboriginal Australian. As mentioned before, I was adopted at birth so I do not know anything about my biological lineage. However, me and my daughters are officially recognised by the Yorta Yorta community as indigenous. My children are registered with the DHS as being Aboriginal Australians. [Redacted] attends Koori first steps kindergarten in Wodonga. Their mother, [redacted], is also in the process of being official [sic] recognised by her Aboriginal community. She believes she is biologically descended from an Aboriginal Australian through her father, however she had a very troubled childhood and strained relationship with him.

…

Please, I ask the Tribunal, if not for [me], but for my children, please revoke the decision to cancel my visa and give me this one last chance to prove to those who I’ve hurt and those who need me in their life that I can and will be the better man/father I know I can be.

…

I have lived in Australia for nearly all of my life and consider Australia to be my only home. I am only a New Zealand citizen because my birth mother, who gave me up for adoption before I was even born, was a New Zealand citizen. I am the father of three Australian children who are very young and two of whom identify as indigenous Australians. I hope the Tribunal takes this into consideration when considering the impact of removing from [sic] to New Zealand. To allow me to be returned to New Zealand, I fear this will have serious consequences for my family, particularly my three young children. My children will not be able to come live with me in New Zealand, and my parental relationship with my children will deteriorate significantly if not disintegrate completely.

10    The applicant provided other documentation in support of his application including an undated hand written letter from an Elder of the Yorta Yorta community, who was not called to give evidence at the hearing. That letter stated that the applicant was known to the Elder for “some 10 years” and continued:

In this time Luke has been a respected Yorta Yorta man helping in the community with Elders and children of all ages. Luke was learning culture and ethics. He is a great father to his three children. Lots of love and respect as he shows his community.… As I have said Luke is missed by his mob. Luke has two daughters to an Aboriginal girl in Albury which he adores.

11    The Tribunal conducted a hearing and for reasons published on 16 November 2021 affirmed the decision under review: Ashley Thompson v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 4206 (TD). The Tribunal commenced by dealing extensively with the applicant’s claim that as an Aboriginal Australian, he was not an alien subject to the power exercised by the Minister. On the evidence before it, the Tribunal was not satisfied that the applicant was biologically descended from an Australian Indigenous person and for that reason could not satisfy the first component of the tripartite test set out by Brennan J in Mabo. The Tribunal reproduced a portion of the applicant’s statement of 29 October 2021 including that he had been “officially recognised by the Yorta Yorta community as indigenous”. The Tribunal also set out a portion of the letter from an Elder of the Yorta Yorta community that I have referenced. At TD [30] the Tribunal found:

It is accepted by the Tribunal, and was not disputed by the Respondent, that Mr Robin has been historically closely involved with the community of which Mr [redacted] is an Elder. However, Mr Robin has not made an assertion that he is biologically an Indigenous Australian and, in his evidence, explicitly said that he was not.

12    However, later at TD [42], after finding that there is no evidence that the applicant is biologically descended from an Australian Aboriginal person, the Tribunal member said:

I stress that I make no finding that Mr Robin has not been recognised by an Aboriginal Elder who enjoys traditional authority because I do not have sufficient evidence as to whether Mr [redacted] is in that category. However, it is not necessary for me to come to a conclusive view on that second question, because the first element of the tripartite test is not met.

13    It may be that the vice of the double negative in that paragraph obscures what the Tribunal meant to say. The finding that the applicant has been closely involved with the Yorta Yorta community does not sit harmoniously with the finding that there was not sufficient evidence to the effect that the applicant has been recognised as a member of it, more so where there was no dispute about the authenticity of the statement from the Yorta Yorta Elder.

14    Having decided the threshold issue adversely to the applicant, the Tribunal went on to consider whether there is another reason to revoke the cancellation decision and in doing so was careful to apply Ministerial Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction 90), as made pursuant to s 499 of the Act.

15    The applicant’s essential complaint is that although the Tribunal did reference the fact that the applicant’s partner and children claimed association with the Aboriginal community it failed to return to the links the applicant claimed to have with the Aboriginal community in considering whether or not there was another reason to revoke the cancellation decision.

16    In answer to this contention, the Minister emphasises that the reasons of the Tribunal must be read as a whole, must not be minutely scrutinised and that objectively the Tribunal did give consideration to the applicant’s claims that he was an Aboriginal Australian, that he had close connections with the Yorta Yorta community and that his ex-partner and two of his children are Aboriginal Australians. Further, the applicant did not expressly state, nor should it be inferred, that these matters were put as relevant to the question whether there was another reason to revoke the cancellation decision, in particular by explaining how his connection and his children’s to the Yorta Yorta community or his ex-partner’s process of recognition as indigenous were relevant factors to the exercise of the discretion at s 501CA(4)(b)(ii).

Consideration

17    The Tribunal considered in detail all of the applicant’s evidence to the effect that he is an Aboriginal Australian. This included evidence, and it would appear findings were made consistently with it, that:

(1)    the applicant is aware of the identity of his biological mother, but does not believe that she is an Aboriginal Australian. He last had contact with her approximately 12 years before the hearing;

(2)    he does not know the identity of his biological father or his descent;

(3)    he does not have any probative evidence to believe that his biological father was an Aboriginal Australian;

(4)    he has been recognised as a Yorta Yorta although he is from New Zealand;

(5)    each of his daughters and his partner had been recognised as Aboriginal by an Elder of the community;

(6)    he has undertaken community work within the Aboriginal community and has Aboriginal friends;

(7)    he has been recognised as a member of the Yorta Yorta community by an Elder of it; and

(8)    in correspondence to the Minister’s Department on 19 November 2020 he stated that his adoptive parents and their three daughters “almost all family” and “these are the people I consider to be my family, and the people I refer to as family”.

18    The Tribunal found that the applicant is a New Zealand citizen by birth and that in the absence of evidence “at all of the lineage” of the applicant’s biological father, was not satisfied that he met the threshold requirement of the tripartite test in Mabo. As I have noted, that determination is not in issue in this application.

19    The Tribunal then turned to first, consideration of the applicant’s substantial criminal record (which is not in issue) and the requirements of Direction 90 relating thereto, which, in its view, weighed heavily against revocation of the cancellation decision. Secondly the Tribunal addressed the best interests of the applicant’s minor children, finding in respect of each that their best interests weighed in favour of revoking the cancellation decision, though ultimately outweighed, in the case of two of them, by the applicant’s history of family violence and lack of recent direct care.

20    Thirdly, the Tribunal considered the expectations of the Australian community, international non-refoulement obligations, the extent of impediments if removed and the impact on victims, none of which is presently in issue. Fourthly, from TD [180], the Tribunal considered the applicant’s links to the Australian community ostensibly as required by paragraph 9.4 of Direction 90. In summary, the Tribunal:

(1)    Accepted that it must consider the impact of the decision on the applicant’s immediate family members resident in Australia: TD [180];

(2)    found that the applicant’s adoptive parents would be adversely affected if the applicant were to be deported: TD [181] and [184];

(3)    Considered, but discounted as a factor, the risk of unwelcome relocation of the applicant’s children to New Zealand as indigenous persons who would lose their connection to land and country: TD [190]-[193];

(4)    Commencing at TD [194] and as part of the conclusion at TD [198], accepted that it is not limited only to the content of Direction 90, is able to consider any other relevant matter and that: “Aside from the suggestion by Mr Robin of him having Australian Aboriginality, subsequently withdrawn, and his citizenship, the Tribunal has not identified any matter in this category.”

21    The reference to apparent withdrawal of Australian Aboriginality is clearly to the concession made during evidence by the applicant that he did not claim to be Aboriginal by biological descent. The evidence in cross-examination was conducted by referring the applicant to his letter to the Department of 19 October 2020:

So the Department sent a letter to Ms Dickinson on 19 October and it concerned the issue about whether you were or might be considered to be an Aboriginal Australian. Do you know about that correspondence or that issue?---Yes, so – this is what – like as far as I’m aware, I’m not biologically descended as Aboriginal – Australian Aboriginal, but it was recognised by an Australian Aboriginal Elder and (indistinct) the Aboriginal community as one of – as a Yorta Yorta member.

Right. So this letter that I’ve just mentioned said that you had a conversation with the Department in February of this year. Do you remember having a conversation with the Department in February?---Maybe briefly.

Yes. It just says in the letter that in an interview conducted on 20 February 2021 you informed the Department that you did not identify as an Aboriginal or Torres Strait Islander, do you remember that?---No.

So you don’t remember saying that to the Department?---No.

But it’s the case, isn’t it, Mr Robin, that you don’t identify as an Aboriginal or Torres Strait Islander, correct?---Well I am – I am recognised as an Australian Aboriginal but, like, I am from New Zealand, so - - -

Yes. Well you say you’re - - -?---(Indistinct).

You say you’re recognised as an Aboriginal by a particular community, is that right?---Yes.

But do you identify as an Aboriginal or Torres Strait Islander?---Well when you come to gaol or when you’re, you know, asked by you guys I would say biologically no, but in the community, yes.

Yes. So I think you’ve mentioned this in your statement to the Tribunal, exhibit A1. You say that you and your daughters are officially recognised as indigenous by the Yorta Yorta community, is that right?---I am and my daughters and – Jaye – Jaye was to be recognised by an Elder that passed away not – probably a month ago, two months ago, but yes. My daughter attends, like a kindergarten called Very First Steps. It’s an Aboriginal – you know, like - - -

And what do you mean when you say in your statement that you’ve been officially recognised by that community?---So I was recognised as an Australian Aboriginal by an Elder after – yeah, like, it was – I used to – I was involved in the Aboriginal community when I was younger, you know, to help me, and I don’t know, just tried to keep (indistinct words). Yes.

22    What is clear from that evidence is that although the applicant conceded that he does not claim to be Aboriginal Australian by descent, he does by association with the Aboriginal community. The Tribunal did not explicitly give consideration to this claim and the applicant’s evidence in support when considering all matters relevant to whether there was another reason to revoke the cancellation decision. Counsel for the Minister submits that I should infer that the association claim was considered in that it is addressed in the first part of the Tribunal’s reasons when rejecting the threshold point that the applicant is not an alien subject to these provisions of the Act. Having considered those matters as part of that analysis, there was no need to be repetitive later in the reasons.

23    I reject that submission. First, Direction 90 at paragraph 9(1) requires consideration, where relevant, of “links to the Australian community” including the “strength, nature and duration of ties to Australia”. Paragraph 9.4.1(2) provides:

Where consideration is being given to whether to cancel a non-citizens visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength nature and duration of any other ties that the non-citizen has to the Australian community. 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;

(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 family or social links with Australian citizens, Australian permanent resident and/or people who have an indefinite right to remain in Australia.

24    At TD [180]-[186 ] the Tribunal limited consideration of this paragraph of Direction 90 to the effect of non-revocation of the cancellation decision to impacts on the applicant’s immediate family members, save for a sentence at TD [183] which acknowledged the applicant’s contribution as an employee in the construction industry and found: “I consider this positive contribution has been outweighed by his offending, because he has particularly committed many property and driving offences, both of which have a direct impact on innocent members of society.” The Tribunal concluded this sub-consideration at TD [186] finding that it “weighs relatively strongly in favour of revoking the mandatory cancellation of the visa”. That relative strength assessment did not have regard to the applicant’s ties to the Aboriginal community.

25    Towards the end of the reasons, the Tribunal member dealt with an “additional submission”, which it understood to be framed by reference to a decision of another Tribunal member who had reasoned that separation of the applicant in that case from his indigenous children and their mother “was neither desirable nor in the public interest”: TD [190]. The Tribunal accepted at TD [193] that: “unwelcome relocation of Indigenous Australians (especially minors who essentially may have no say in the matter) to another country as a direct consequence of the cancellation of the visa of a non-indigenous parent can be a relevant factor to take into account, because of the potentially damaging effect of loss of connection with land and country.” However, the member reasoned that this factor was not engaged in the circumstances of this case.

26    What clearly emerges from this reasoning is that the Tribunal did not expressly, and I infer implicitly, give consideration to the applicant’s self-identification as an Aboriginal Australian, his recognition as such by members of the Aboriginal community or, in particular, his connection with the Yorta Yorta community which claims were explicitly made in his statement of 29 October 2021. I reject the Minister’s submission that the Tribunal at TD [186] and TD [197] “ultimately gave relatively strong weight to the strength, nature and duration of ties to the Australian community” of the applicant. A fair, objective and not overly critical reading of these paragraphs reveals that TD [186] is a conclusion limited to the matters considered at TD [180]-[185], which as I have explained, did not include consideration of the applicant’s claims of ties to the Aboriginal community. The reasoning at TD [197] forms part of the Tribunal’s conclusion. It is preceded by TD [194] which is an evaluative summary of the applicant’s criminal conduct and the need to protect the Australian community, TD [195] which emphasises the applicant’s history of family violence and TD [196] which is concerned with the best interests of the applicant’s minor children. Then at TD [197] the Tribunal reasoned:

Of the other considerations, that [sic] relating to non-refoulement obligations is not relevant on the facts in the case of a person who is returnable to New Zealand. The consideration relating to the extent of impediments if removed weighs marginally in favour of revoking the mandatory cancellation, but the Tribunal finds that the real challenges that Mr Robin will undoubtedly face will not be insurmountable. The consideration weighing to impact on victims has been found to weigh neutrally. The consideration relating to links with the Australian community weighs relatively heavily in favour of revocation because the Applicant has spent almost all his life in Australia and has no family with whom he has contact in New Zealand.

27    The difficulty with the Minister’s submission is that the list of “other considerations” is drawn from the anterior reasoning where there is missing any consideration of the applicant’s claims of Aboriginality and links to the Aboriginal community and is clearly confined to the findings at TD [180]-[186] which I have concluded did not consider these claims.

28    The Minister accepted in argument that the applicant’s letter to the Tribunal of 29 October 2021 “can be taken to be representations” and was required to be considered in performance of the Tribunal’s review function. In Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 287 FCR 294; [2021] FCAFC 172, the Full Court (Burley, Colvin and Jackson JJ) at [27] summarised some of the applicable principles concerning judicial review of the exercise of the statutory power at s 501CA(4) of the Act:

…

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

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

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

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

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

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

29    That summary must now be read subject to the High Court decision in Plaintiff M1/2021 v Minister for Home Affairs (2022) 96 ALJR 497; [2022] HCA 17 (M1), particularly the plurality reasons of Kiefel CJ, Keane, Gordon and Steward JJ at [22]-[27] where in part, their Honours said:

23    It is, however, improbable that Parliament intended for that broad discretionary power to be restricted or confined by requiring the decision maker to treat every statement within representations made by a former visa holder as a mandatory relevant consideration. But the decision-maker cannot ignore the representations. The question remains how the representations are to be considered.

24    Consistently with well-established authority in different statutory contexts, there can be no doubt that a decision-maker must read, identify, understand and evaluate the representations. Adopting and adapting what Kiefel J (as her Honour then was) said in Tickner v Chapman, the decision-maker must have regard to what is said in the representations, bring their mind to bear upon the facts stated in them and the arguments or opinions put forward, and appreciate who is making them. From that point, the decision-maker might sift them, attributing whatever weight or persuasive quality is thought appropriate. The weight to be afforded to the representations is a matter for the decision-maker. And the decision maker is not obliged “to make actual findings of fact as an adjudication of all material claims” made by a former visa holder.

(Citations omitted.)

30    Objectively in my view the applicant articulated his self-identification as an Aboriginal Australian, his acceptance as a Yorta Yorta man by an Elder of that community and his consequential association with members of the Aboriginal community in his written statement to the Tribunal. It was significant and clearly expressed and maintained in his oral evidence to the Tribunal. Although these matters were mentioned in dismissing his claim to be biologically descended from Aboriginal Australians, they were not considered by the Tribunal in assessing satisfaction as to whether there was another reason to revoke the cancellation decision. The explicit failure to assess these claims when addressing the mandatory considerations at paragraph 9.4.1(2) of Direction 90 bespeaks of material jurisdictional error by the Tribunal. Although the Tribunal was aware of these claims in assessing the jurisdictional question, it failed to return to them in considering the broader question of another reason as required by s 501CA(4)(b)(ii) of the Act. The error, adopting the formulation from M1, is the failure of the Tribunal to understand and evaluate how these claims were also relevant to the applicant’s strength, duration and ties to the Aboriginal community of Australia. Expressed differently, the correct characterisation is that the Tribunal failed to consider a matter that is material to the applicant’s claims: this is not a case explicable as a failure to consider evidence which it did not regard as material to those claims: ETA067 v Republic of Nauru (2018) 92 ALJR 1003; [2018] HCA 46 at [14], Bell, Keane and Gordon JJ.

31    I am further satisfied that that the applicant has established to the civil standard that this failure was material jurisdictional error in that there was a “realistic possibility that a different decision could have been made” if these matters were considered: MZAPC v Minister for Immigration and Border Protection (2021) 95 ALJR 441; [2021] HCA 17 at [39], Kiefel CJ, Gageler, Keane and Gleeson JJ; and “[t]he standard of ‘reasonable conjecture’ is undemanding”: Nathanson v Minister for Home Affairs (2022) 96 ALJR 737; [2022] HCA 26 at [33], Kiefel CJ, Keane and Gleeson JJ.

32    The application must be allowed. I was informed by counsel that there is no reason why costs should not follow the event.

Orders

33    For these reasons I order as follows:

(1)    The decision of the Administrative Appeals Tribunal made on 16 November 2021 in matter 2021/5869 is quashed.

(2)    The matter is remitted to the Administrative Appeals Tribunal for hearing and determination according to law.

(3)    The first respondent is to pay the applicant’s costs as agreed or taxed, with such costs ultimately being payable directly to counsel for the applicant in accordance with r 4.19 of the Federal Court Rules 2011 (Cth).

Associate:

Dated:    3 March 2023