Federal Court of Australia

Nguyen v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 180

ORDERS

THE COURT ORDERS THAT:

1.    The application be allowed.

2.    The decision of the second respondent dated 22 November 2021 be set aside.

3.    The applicant’s application for review of the decision made by the first respondent be remitted to the second respondent for determination according to law.

4.    The first respondent pay the applicant’s cost of the application in an amount to be agreed or fixed by the Registrar on a lump sum basis.

5.    Liberty to any party to apply within seven (7) days for an alternative costs order.

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

REASONS FOR JUDGMENT

O’SULLIVAN J:

Overview

1    The applicant is a citizen of Vietnam who was born on 20 July 1990 in Vietnam. He arrived in Australia on 28 November 2010 as the holder of a Student (Class TU) (Subclass 573) visa. He has remained in Australia lawfully since that time.

2    On 5 November 2012, the applicant applied for a Partner (Temporary) (Class UK) visa, (Temporary Visa) which he was granted on 7 February 2014. At the same time, he also applied for a Partner (Residence) (Class BS) Visa (Permanent Visa).

3    The applicant married his wife, an Australian citizen, in 2013 and remains married to her.

4    On 25 May 2018, the applicant was convicted for the offence of supplying a prohibited drug (not cannabis) for which he received a non-custodial sentence.

5    On 26 May 2020, the applicant was convicted of an offence concerning the commercial cultivation of cannabis for which he also received a non-custodial sentence.

6    On 13 May 2021, a delegate of the respondent wrote to the applicant providing him with a “Notice of Intention to Consider Refusal” pursuant to s 501(1) of the Migration Act 1958 (Cth) (Act) on the basis that the applicant did not pass the character test prescribed by s 501(6)(d)(i) of the Act.

7    On 16 August 2021, the delegate refused the applicant’s application for a Permanent Visa on the grounds the applicant did not pass the character test. The applicant was notified of the decision on 30 August 2021. In making the decision, the delegate referred to s 501(6)(d)(i) and s 501(7)(c) of the Act.

8    The applicant applied to the Administrative Appeals Tribunal (Tribunal) on 2 September 2021 for a review of the delegate’s decision.

9    On 22 November 2021, the Tribunal affirmed the delegate’s decision made 16 August 2021.

10    The applicant applies for judicial review of the Tribunal’s decision pursuant to s 476A of the Act.

11    At the hearing, the applicant applied for leave to amend his originating application to add a third ground of review. I refuse the applicant leave to amend his originating application for the reasons set out below.

12    Three issues arise in this matter:

(i)    Did the Tribunal commit an error of law by misconstruing or failing to perform its statutory task set by s 501(1) of the Act?;

(ii)    Did the Tribunal commit an error of law by asking itself the wrong question and/or applying the wrong test such that it failed to exercise its jurisdiction?; and

(iii)    If the Tribunal committed an error of law, was that error material so as to amount to jurisdictional error?

13    It is for the reasons which follow that the application for review is allowed.

Direction 90

14    Pursuant to s 499(1) of the Act, the Minister has given a written direction titled “Direction 90 - Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA” (Direction 90). Direction 90 applies to a decision-maker, being a delegate of the Minister or a body such as the Tribunal, making a decision under ss 501 or 501CA of the Act. It commenced on 15 April 2021.

15    Section 499(2A) makes it mandatory for a person or body to comply with a direction issued under s 499(1) of the Act.

The Tribunal’s Reasons (Reasons)

16    It was common ground before the Tribunal that the applicant’s criminal history did not enliven the application of s 501(7)(c) of the Act. Nonetheless, the Minister contended before the Tribunal that it was open to the delegate to find the applicant did not pass the character test by reason of s 501(6)(d)(i) of the Act.

Character test - Reasons [38]-[62]

17    The Tribunal addressed whether or not the applicant passed the “character test” within the meaning of s 501(6)(d) in the Reasons at [38]-[62].

18    The Tribunal set out the information before it concerning the applicant’s offending and subsequent convictions in May 2018 and May 2020.

19    On his first conviction on 25 May 2018, the applicant received a non-custodial sentence in the form of an intensive correction order for a period of 10 months which concluded on 24 March 2019.

20    On his second conviction on 26 May 2020, the applicant received a non-custodial sentence in the form of community corrections order for a period of two years. The community corrections order concluded on 26 May 2022.

21    In the case of both convictions, at sentencing submissions, counsel for the applicant tendered a pre-sentencing report prepared by a psychologist. Neither of the psychologists was called to give evidence before the Tribunal.

22    The Tribunal noted that the applicant had not breached either the intensive correction order or the community corrections order imposed.

23    The Tribunal referred to s 501(6)(d)(i), which is the section of the Act the delegate relied upon when making its decision to refuse the applicant a Permanent Visa. The Tribunal held that when making an assessment of the applicant’s potential future behaviour and possibility of any further criminal offending: Reasons [42]-[43]:

(i)    It only need find that further criminal offending was likely to occur in order to make a finding that the applicant failed the character test;

(ii)    It needed to be established that there is an ongoing risk of the applicant engaging in such conduct in the future; and

(iii)    That the risk was more than minimal or remote: Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559, 574-575; Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160 at [2] (Perram, Murphy and Lee JJ).

24    The Tribunal referred to Direction 90, Annex A, Section 2. Paragraph 6 of this Section deals with s 501(6)(d). Sub-paragraph 6.1 addresses specifically s 501(6)(d)(i).

25    The Tribunal considered the applicant’s two drug related convictions. It characterised the offences as serious with both involving a significant quantity of drugs, in the first case 3, 4-methylenedioxy-methylamphetamine (MDMA) to the value of $2,000 and in the second case, cultivation of 75 cannabis plants.

26    The Tribunal considered the pre-sentence psychological reports. Since neither of the authors was called before it so as to allow the Tribunal to ask questions of each expert, the Tribunal considered it was only able to afford limited the weight to each report. The Tribunal noted the proximity of the second drug-related conviction to the first drug-related conviction and expressed caution in relying on the pre-sentence psychological reports under those circumstances. In particular, although noting the applicant expressed deep remorse and understanding with respect to his first drug-related conviction, nonetheless the Tribunal noted the applicant committed a further, serious offence, a short time later.

27    The Tribunal formed the view that the most credible explanation for the applicant’s motivation for his conduct leading to his first conviction was financial gain. The Tribunal referred to the evidence of the applicant’s younger sister who agreed with that proposition and to evidence given by the applicant which the Tribunal characterised as an effective concession that was the case.

28    In relation to the second conviction, the Tribunal formed the view the applicant had failed to explain adequately the motivation for his offending other than that he was “helping out his friend”, an explanation the Tribunal did not find to be credible.

29    Although noting the applicant’s submissions regarding family support and stability of employment having a deterrent effect on his risk of recidivism, the Tribunal observed that those supports were in place at the time of the applicant’s first offence.

30    The Tribunal accepted that the past criminal convictions of the applicant are not a certain guide as to the applicant’s future conduct, however it formed the view that it did provide a basis for determining the probability of the applicant committing future criminal acts should he be allowed to remain in Australia.

31    Taking into account the matters before it, the Tribunal was not satisfied that the risk of the applicant re-offending could be considered minimal or remote.

32    The Tribunal concluded that on the basis of:

(i)    The diminished remorse of the applicant in circumstances where he re-offended only two months after his intensive community correction order expired in relation to the first drug-related conviction;

(ii)    The closeness in time of the two drug-related offences;

(iii)    The Tribunal’s concerns with respect to the applicant’s judgment in relation to his association with individuals and drug-related activity; and

(iv)    Having regard to the requirements of paragraph 6 of section 2 of Direction 90 and s 501(6)(d)(i),

the applicant did not pass the character test.

Direction 90 considerations

33    Having found the applicant did not pass the character test, the Tribunal considered next the exercise of the discretion in s 501(1) of the Act to refuse to grant the applicant a Permanent Visa. In so doing, the Tribunal addressed the matters in Direction 90.

Primary Considerations

34    The Tribunal considered the Primary Considerations set out in paragraph 8 of Direction 90.

Primary Consideration 1 - Reasons [70]-[95]

35    The Tribunal referred to sub-paragraphs 8.1(1) and 8.1(2) of Direction 90.

36    It considered the nature and seriousness of the applicant’s conduct and the risk to the Australian community should the applicant commit further offences or engage in other serious conduct before concluding:

(i)    The nature and seriousness of the applicant’s criminal offending is considered serious: Reasons [73], [95];

(ii)    Should the applicant engage in similar or offending conduct in the future (which has in the past included facilitating accessibility to a significant quantity of drugs in the wider Australian community), the nature of the harm to the Australian community would be serious: Reasons [80], [95]; and

(iii)    There is more than a minimal or remote possibility of the applicant re-offending: Reasons [93], [95].

37    The Tribunal concluded that Primary Consideration 1 weighed heavily in favour of refusal of the applicant’s Permanent Visa: Reasons [96].

Primary Consideration 2 - family violence committed by the applicant: Reasons [97]-[100]

38    The Tribunal did not find it necessary to consider Primary Consideration 2.

Primary Consideration 3 - the best interests of minor children in Australia: Reasons [101]-[127]

39    Primary Consideration 3 concerns the best interests of minor children in Australia. There was one child identified in the material before the Tribunal who is the applicant’s nephew. After assessing the relevant considerations specified in paragraph 8.3 of Direction 90, the Tribunal concluded, based on the findings it had made with respect to the relevant considerations in sub-paragraph 8.3(4) of Direction 90, that: Reasons [126]-[127]:

(i)    The applicant’s nephew is cared for by his respective parents;

(ii)    The applicant enjoyed a close relationship with his nephew and presently resides with his nephew and his nephew’s parents; and

(iii)    The applicant has capacity to maintain contact with his nephew via electronic means should the Tribunal affirm the delegate’s decision to refuse the applicant’s application for a Permanent Visa.

40    The Tribunal found the best interests of the child weighed moderately in favour of a decision not to refuse the applicant’s Permanent Visa but considered that the weight the Tribunal attributed to this Primary Consideration did not outweigh the heavy and determinative weight the Tribunal attributed to Primary Consideration 1: Reasons [127].

Primary Consideration 4 - the expectations of the Australian community: Reasons [128]-[138]

41    After referring to the various criteria in paragraph 8.4 and the principles set out in paragraph 5.2 of Direction 90, the Tribunal noted that the applicant had resided in Australia for some 11 years; that he married an Australian citizen soon after arriving in Australia; that he has contributed to the Australian community through his various forms of employment; and has made positive contributions to the community in various volunteering efforts. The Tribunal also noted that against those positive contributions to the Australian community are his two drug-related criminal convictions, the harm to the Australian community caused through the applicant’s actions in facilitating the accessibility of a significant quantity of illegal drugs and there is a more than minimal or remote possibility of re-offending.

42    Ultimately, the Tribunal formed the view that the applicant’s offending conduct is such that the Australian community would expect that he should not be granted a visa. The Tribunal also found that the applicant’s offending did not involve any of the type of offending identified in sub-paragraph 8.4(2)(a) to (f). The Tribunal formed the view that Primary Consideration 4 weighed moderately in favour of visa refusal: Reasons [138].

Other Considerations

43    The Tribunal noted it was necessary to consider the matters in paragraph 9 of Direction 90 – “Other Considerations”: Reasons [139]-[176], before concluding at [177]:

(i)    International non-refoulement obligations are not engaged;

(ii)    Impediments the applicant may face if removed from Australia to Vietnam - slight weight in favour of granting the applicant his visa;

(iii)    There was no evidence submitted to the Tribunal for consideration with respect to the impact of “non-revocation” on the victims of the applicant such that it is afforded neutral weight; and

(iv)    Links to the Australian community:

(a)    The strength, nature and duration of ties to Australia carries a strong measure of weight in favour of the applicant; and

(b)    The impact on Australian business interests is of no weight.

44    The Tribunal formed the view at [178], that to the extent Other Considerations “… weigh in favour of revocation of the applicant, they are outweighed by the determinative and heavy weight the Tribunal has attributed Primary Consideration 1, supported to a lesser extent by the moderate weight the Tribunal has attributed to Primary Consideration 4.”

The Tribunal’s conclusion

45    The Tribunal expressed its conclusion under the heading above Reasons [179] “Is there another reason to revoke the cancellation of the applicant’s Visa?”

46    It identified two considerations in relation to the decision to refuse the applicant’s Visa as: Reasons [179]:

(i)    Whether the applicant passes the character test, as defined in s 501(6) of the Act; and

(ii)    If the applicant does not pass the character test, whether the discretion in s 501(1) of the Act should be exercised to refuse to grant the applicant a Permanent Residence (Spouse Visa) (Class 801).

47    The Tribunal summarised its findings at [179]-[181]:

(i)    There is a more than minimal risk or remote risk of the applicant engaging in criminal conduct should he be allowed to remain in Australia: s 501(6)(d)(i). Further, by reference to the requirements of paragraph 6 of section 2 of Direction 90, the applicant did not pass the character as defined in s 501(6) of the Act; and

(ii)    After giving consideration to the next question which was the exercise of the discretion in s 501(1) of the Act to refuse to grant the applicant a Permanent Resident (Spouse Visa) (Class 801) Visa, the Tribunal found that as to each of the Primary Considerations in Direction 90:

(a)    Primary Consideration 1 weighed heavily in favour of refusal of the applicant’s visa;

(b)    Primary Consideration 2 was of no weight;

(c)    Primary Consideration 3 weighed moderately in favour of the applicant being granted a visa; and

(d)    Primary Consideration 4 weighed moderately in favour of refusal of the applicant’s visa.

48    On the question of whether “Other Considerations” existed, the Tribunal concluded that: Reasons [182]-[184]:

… To the extent that any of the Other Considerations (pursuant to paragraphs 9 to 9.4.2 of the Direction) weigh in favour of revocation of the mandatory visa cancellation decision, even when combined with each other and Primary Consideration 3, they do not outweigh the heavy and determinative weight the Tribunal has attributed to Primary Consideration 1, supported to a lesser extent by Primary Consideration 4.

that

… a holistic view of the considerations in [Direction 90] favours the refusal of the Applicant’s visa.

and that the Tribunal

… cannot exercise the discretion pursuant to s 501(1) of the Migration Act in favour of the Applicant.

The originating application

49    The originating application contains two grounds:

(i)    The Tribunal misconstrued or failed to perform its statutory task set by s 501(1) of the Act; and

(ii)    The Tribunal asked itself the wrong question and applied the wrong test, and thereby constructively failed to exercise its jurisdiction.

50    At the hearing, the applicant applied to amend its originating application by adding a third ground:

(iii)    Further or in the alternative, the Tribunal failed to give proper, genuine and realistic consideration to the likelihood of the applicant engaging in further criminal or other serious conduct.

51    The first respondent does not consent to the application to amend the originating application. I deal with this matter below.

52    The particulars to the first ground contend, in summary:

(i)    Given the Tribunal had found the applicant did not pass the character test, its task was to consider whether it should exercise the discretion under s 501(1) to refuse to grant the applicant a Permanent Visa;

(ii)    The Tribunal misunderstood the nature of the review because the applicant’s application for a Permanent Visa had been refused under s 501(1) of the Act. It had not been the subject of mandatory cancellation under s 501CA of the Act, yet the Tribunal considered Direction 90 as if it were an application under s 501CA(4); and

(iii)    Accordingly, the Tribunal misdirected its statutory task and thereby failed to address the statutory requirements in s 501(1) of the Act and Direction 90.

53    The particulars to the second ground contend, in summary:

(i)    The issue before the Tribunal was whether the applicant passed the character test and if not, whether the Tribunal should exercise the discretion in s 501(1) of the Act to refuse to grant the applicant a Permanent Visa;

(ii)    In exercising the discretion the Tribunal was bound to apply Direction 90; and

(iii)    The proper focus of the enquiry was paragraph 6 of Direction 90, which required the Tribunal to take into account the Primary and Other Considerations identified in paragraphs 8 and 9(1) of Direction 90 (where relevant) in determining whether to exercise the discretion to refuse to grant the applicant a Permanent Visa. However, the Tribunal addressed the test incorrectly because it considered the Primary and Other Considerations in Direction 90 in the context of whether the mandatory cancellation of the applicant’s visa should be revoked, such that it misdirected its enquiry and thereby fell into error.

The Issues

54    The first and second grounds raise issues one, two and three.

(i)    Did the Tribunal misconstrue or fail to perform its statutory task set out by s 501(1) of the Act;

(ii)    Did the Tribunal asked itself the wrong question and apply the wrong test and thereby constructively failed to exercise its jurisdiction? and

(iii)    If the Tribunal committed an error of law, was that error material so as to amount to jurisdictional error?

55    Issues one and two may be considered at the same time.

Parties’ submissions

56    The applicant submits that the Tribunal erred because at Reasons [5] it referred to the application to the Tribunal as seeking a review of a decision not to revoke the cancellation of the applicant’s visa under s 501CA and not the refusal of an application for a Permanent Visa. The applicant refers to the same error in the headings above Reasons [63] and [179]. It also refers to continued references to revocation of the cancellation of the applicant’s visa, throughout its Reasons at [67], [101], [102], [129], [154], [173], [178] and [182].

57    The applicant submits that the Tribunal defined the structure of its reasoning by reference to the language of s 501CA as evidenced by the numerous references to revocation of cancellation of a visa. The applicant concedes, quite properly, that there are also numerous references to the refusal of a visa.

58    The applicant submits that although Direction 90 prescribes the same primary and other considerations for both s 501(1) and s 501CA of the Act, the statutory task in each provision is different. When carrying out the evaluative task in Direction 90 for the purposes of s 501CA(4)(b)(ii) no discretion is involved, with the discretion only arising after the Minister had made a finding that “another reason” exists: Ali v Minister for Home Affairs (2020) 278 FCR 627; [2020] FCAFC 109 at [109]-[110] (Collier, Reeves and Derrington JJ). The applicant submits that is not the case with s 501(1) and in determining whether “another reason” exists, the Tribunal addressed an entirely different question and undertook an entirely different statutory task. The applicant submits that either the Tribunal did not understand the difference between the two provisions or if it did, it applied the wrong test such that it constructively failed to exercise its jurisdiction.

59    Further, the applicant submits that by applying the Direction to a decision whether to revoke a mandatory cancellation, the Tribunal was making the wrong factual enquiry in that it asked itself what impact revocation would have on victims, family members, the Australian community and Australian business interests.

60    The applicant submits that had the Tribunal asked itself the correct question, there was a possibility that the applicant could have obtained a favourable outcome.

61    The first respondent accepts the Tribunal referred to “revocation” or “non-revocation” on a number of occasions throughout its reasons. It submits, however, that these references suggest a lack of care or detail in final proofreading but do not lead to a conclusion of jurisdictional error for two reasons:

(a)    An inference should be drawn that the Tribunal was merely repeatedly committing a typographical error - possibly an error in editing a form of words from a previous decision in another matter; and

(b)    Even if the Tribunal had erroneously considered s 501CA(4) instead of s 501(1), the error was not material in the circumstances.

62    As to the first of those reasons, it observes the majority of the erroneous references occur in what it described as “template” provisions of the Tribunal’s reasons including parts where the Tribunal is addressing the effect of Direction 90, not its deliberative reasoning. The first respondent points to numerous passages in the Tribunal’s reasons where it correctly referred to its decision as involving refusal and its explicit reference to s 501(1) as the statutory provision under which it is exercising power. It notes the Tribunal did not refer to s 501CA(4) as the basis of its exercise of power.

63    The first respondent refers to previous decisions of the same Tribunal Member and points to wording and formatting which is substantially the same as that used in the decision under review in this matter. It submits that the erroneous references to revocation did not reflect a substantive misunderstanding of the Tribunal’s exercise of power but reflected a lack of diligence in proofreading or editing.

64    The first respondent continues by submitting that on a number of occasions where the Tribunal has used an incorrect heading referring to revocation, it nonetheless speaks about refusal pursuant to s 501(1) and that the Tribunal’s findings and process only make sense in the context of the exercise of the power under s 501(1) and not the exercise of power in s 501CA(4).

65    The first respondent refers to CRI026 v Republic of Nauru [2018] HCA 19; (2018) 92 ALJR 529. In that matter the High Court was considering an appeal as of right from a judgment of the Supreme Court of Nauru which had dismissed the appellant’s appeal against a decision of the Refugee Status Review Tribunal affirming a decision of the Secretary of the Department of Justice and Border Control to reject the appellant’s application to be recognised as a refugee to whom the Republic of Nauru owed complementary protection under the Refugees Convention Act 2012 (Nr). The appellant was a Pakistani national who claimed he was a refugee, alternatively a person to whom Nauru owed complementary protection because he feared that upon his return to Pakistan he would be harmed by members of a particular movement known as “MQM”. In its reasons, the Refugee Status Review Tribunal made reference to Sri Lanka and Tamils rather than Karachi and the MQM.

66    The High Court found at [55] to [56], that upon close examination of the Tribunal’s reasons, the Tribunal reached its conclusion on the basis of the appellant’s dealings and experiences with the MQM in Pakistan such that the references to Sri Lanka and Tamils was a typographical error.

67    In WAFK v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1293; (2003) 133 FCR 209, at [52], French J (as his Honour then was) found it was clear that the Tribunal had borrowed from the text of earlier Tribunal decisions or from some other common source used in cases such as the one before it. His Honour was not satisfied that the mere fact of the use of common form text in relation to statements of general principle, general conclusions about country information and even findings of credibility in similar cases was necessarily indicative of jurisdictional error. After making some further observations about the use of credibility findings, his Honour found that in that particular case, the use of common form text was sufficiently modified by reference to the particular circumstances of the appellant’s claims to indicate the Tribunal was giving consideration to the appellant’s case.

68    As to the second of the two reasons, the first respondent submits that whether the Tribunal was proceeding under s 501(1) or s 501CA(4) of the Act, there was no material difference in the application of Direction 90 between refusal and non-revocation decisions. The respondent refers to the applicant’s reliance on Ali, observing that the submission that a discretion for the purposes of s 501CA(4)(b)(ii) arises after the Minister had made a finding that “another reason” exists is misconceived and contrary to the weight of authority: Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166; (2016) 153 ALD 338.

69    The first respondent also refers to Au v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1240 where the Court accepted that the Tribunal had erred by not turning its mind to whether there was “another reason” for the purposes of s 501CA(4)(b)(ii) but held the error was not material since the Tribunal had traversed in a substantive way the considerations it was required to consider in the relevant Ministerial Direction (Direction 79). On that basis, the first respondent submits the decision-making process was, in substance, what was required: Au at [57].

Consideration

70    When this matter was heard, judgment in an appeal against the first instance decision in Au had not been delivered.

71    In Au v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 125 (Perry, Derrington and O’Sullivan JJ), the Full Court considered an appeal from the primary judge who had dismissed an application for review of a decision of the Tribunal refusing to revoke the cancellation of a visa which had been cancelled pursuant to s 501(3A). The Tribunal had treated the question of whether there was “another reason” for the purposes of s 501CA(4)(b)(ii) as the exercise of a discretionary power to revoke or not revoke the cancellation decision. The Full Court held that the Tribunal had failed to address the correct question because it had approached the issue from the perspective of the exercise of a discretion whereas the weight of Full Court authority is that consideration of the criteria in the relevant Direction (Direction 79) called for an evaluative approach with there being no residual discretion: Au at [36]-[43] (Derrington J, Perry J agreeing); [82]-[98] (O’Sullivan J). See also Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166; (2016) 153 ALD 338, [26]-[38] (North ACJ); Marzano v Minister for Immigration & Border Protection [2017] FCAFC 66; (2017) 250 FCR 548 (Collier J at [31], Logan and Murphy JJ agreeing); Viane v Minister for Immigration and Border Protection [2018] FCAFC 116, (2018) 263 FCR 531 (Colvin J at [73]); Bettencourt v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs (2021) 287 FCR 294; [2021] FCAFC 172 (Burley, Colvin & Jackson JJ at [27]-[28]); Tohi v Minister for Immigration, Citizenship, Migration Services & Multicultural Affairs [2021] FCAFC 125 (Katzmann J at [3]; O’Bryan J at [100], Derrington J - contra at [51]); 285 FCR 187; Minister for Home Affairs v Buadromo [2018] FCAFC 151; (2018) 267 FCR 320 at [21] (Besanko, Barker and Bromwich JJ).

72    The Full Court in Au considered the error was material to the outcome because there was a realistic possibility of a different outcome. Accordingly, the Tribunal’s error was affected by jurisdictional error.

73    Although dealing with Direction 79, the Full Court’s observations apply with equal force in this matter.

74    There is a difference in the approach required for the purposes of considering an application under s 501CA(4)(b)(ii), as opposed to s 501(1).

75    Section 501(1) confers a broad discretionary power to refuse the grant of any visa “if the person does not satisfy the Minister that the person passes the character test”. In Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v EBD20 (2021) 287 FCR 581; [2021] FCAFC 179 (Perram, Thawley and Stewart JJ), the Full Court said at [28]:

Section 501(1) confers a discretionary power to refuse the grant of any visa “if the person does not satisfy the Minister that the person passes the character test”. Section 501(1) does not expressly require any consideration to be given to whether a person is a “danger”. Unlike s 36(1C), s 501(1) applies to all visas. The discretion in s 501(1) is intentionally broad. One of the matters the Minister typically, if not invariably, takes into account in considering the discretion is risk to the Australian community.

76    In Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BFW 20 by his Litigation Representative BFW20A (2020) 279 FCR 475; [2020] FCAFC 121 (Allsop CJ, Kenny, Besanko, Mortimer and Moshinsky JJ) the Full Court considered the question of whether the power in s 501 of the Act to refuse to grant a visa can apply to an application for a protection visa under the Act. The Full Court observed: at [129]-[130]:

It is important next to recognise that, while the character provisions in s 36 (and related definitions) and s 501 overlap, there is no necessary inconsistency between the provisions. The provisions operate in different ways: if an applicant fails to satisfy the character provisions in the protection visa criteria, the application for a protection visa must be refused; whereas, if an applicant fails to satisfy the character provisions in s 501, the application may be refused. Thus, there is no necessary inconsistency between the provisions.

The fact that the character provisions in the protection visa criteria lead to automatic refusal, while the character provisions in s 501 merely enliven a discretion to refuse, provides an intelligible basis for the presence of the (narrower) character provisions in the protection visa criteria… It is not to be assumed that, just because an applicant fails to satisfy the Minister that the applicant passes the character test, their application for a visa will be refused under s 501(1). The exercise of the discretion under s 501(1) depends on the facts and circumstances of the case, having regard to relevant considerations …

(Citations omitted)

77    Direction 90 is directed at both visa refusal and cancellation under s 501(1) and revocation of a mandatory cancellation of a visa under s 501CA of the Act. There is no reason why the evaluative process to be adopted by the decision-maker when considering the requirements of Direction 90 should be any different for the purposes of s 501, than for s 501CA. As I have noted, s 499(2A) provides that a person or body must comply with a direction given under s 499(1) of the Act.

78    The evaluative process required when addressing the matters identified in Direction 90, to which reference has been made in the authorities to which I have referred above, applies irrespective of whether the decision-maker is considering an application for review of the refusal of a visa under s 501(1) or whether there is “another reason” why the mandatory cancellation of a visa under s 501(3A) should be revoked under s 501CA(4)(b)(ii).

79    However, notwithstanding the evaluative approach is the same, as the Full Court observed in Au there is a distinction between embarking on the evaluative task in circumstances where a discretion is being exercised and one in which there is no discretion. The decision-maker in Au approached the consideration of the matters in Direction 79 from the perspective of exercising a discretion when there was none, thereby asking the wrong question.

80    The exercise of discretion was considered by the High Court in Norbis & Norbis [1986] HCA 17; (1986) 161 CLR 513 and Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194. In Norbis, Mason and Deane JJ considered appellate review of the exercise of judicial discretion in accordance with the principles in House v The King [1936] HCA 40; (1936) 55 CLR 499. As to what comprises a “discretion”, their Honours said at 518:

The principles have been constantly reiterated and applied by this Court in the form in which they were expressed in House v. The King (1936) 55 CLR 499:

It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.

The sense in which the terms “discretion” and “principle” are used in these remarks needs some explanation. “Discretion” signifies a number of different legal concepts: see, eg, the discussion in Pattenden, The Judge, Discretion, and the Criminal Trial (1982), pp. 3-10. Here the order is discretionary because it depends on the application of a very general standard - what is “just and equitable” - which calls for an overall assessment in the light of the factors mentioned in s 79(4), each of which in turn calls for an assessment of circumstances. Because these assessments call for value judgments in respect of which there is room for reasonable differences of opinion, no particular opinion being uniquely right, the making of the order involves the exercise of a judicial discretion. The contrast is with an order the making of which is dictated by the application of a fixed rule to the facts on which its operation depends.

81    In Coal and Allied Operations Pty Ltd at [19] Gleeson CJ, Gaudron and Hayne JJ said on the notion of what comprises “discretion”:

“Discretion” is a notion that “signifies a number of different legal concepts”. In general terms, it refers to a decision-making process in which “no one [consideration] and no combination of [considerations] is necessarily determinative of the result”. Rather, the decision-maker is allowed some latitude as to the choice of the decision to be made. The latitude may be considerable as, for example, where the relevant considerations are confined only by the subject matter and object of the legislation which confers a discretion. On the other hand, it may be quite narrow where, for example, the decision-maker is required to make a particular decision if he or she forms a particular opinion or value judgement.

(Citations omitted)

82    Their Honours continued at [21]:

Because a decision-maker charged with the making of a discretionary decision has some latitude as to the decision to be made, the correctness of the decision can only be challenged by showing error in the decision-making process. And unless the relevant statute directs otherwise, it is only if there is error in that process that a discretionary decision can be set aside by an appellate tribunal.

83    These two authorities demonstrate that notwithstanding the requirement of an evaluative exercise dictated by the application of fixed criteria, there is a difference in approach when the decision-maker is considering the exercise of broad discretion as opposed to considering whether a particular decision must be reached following the evaluative exercise in question.

84    The consequence is that for the purposes of s 501(1) when carrying out the required evaluative exercise, the decision-maker does so against the background of the exercise of a broad discretion.

Did the Tribunal address the wrong question?

85    Each of the paragraphs of Direction 90 to which the Tribunal refers applies equally to a refusal of a visa under s 501(1) and revocation of the cancellation of a visa under s 501CA(4). Upon consideration of the Tribunal’s Reasons, it is readily apparent that the Tribunal Member carried out the evaluative exercise required by Direction 90 in reaching the conclusion that the delegate’s decision refusing the applicant’s application for a Permanent Visa should be affirmed.

86    Although urged by the first respondent to take the same approach as the High Court in CRI026 and the approach by French J in WAFK, I decline to do so because of the different tasks being undertaken depending on whether it is the exercise of a broad discretion on an application to review a refusal of a visa under s 501(1) or whether the existence of “another reason” for the purposes of s 501CA(4) leads to a conclusive result. The errors made by the Tribunal in the description of its task in its Reasons infect the whole approach to the evaluative task undertaken by the Tribunal. So much so is apparent from the Tribunal’s conclusion at Reasons [180]-[182], where the Tribunal refers only to its conclusions on the matters in Direction 90 to reach a particular decision (as required under the approach for s 501CA(4)), but does not direct its mind to the broad discretion required by s 501(1).

87    I find the Tribunal Member approached the evaluative exercise required by Direction 90 as if it was an application pursuant to s 501CA(4) for revocation of the cancellation of a visa cancelled pursuant to s 501(3A). In so doing, the Tribunal addressed the wrong question and thereby committed an error of law.

Materiality

88    The third issue is whether the error of law was material such as to amount to jurisdictional error.

89    Not all errors of law are fatal to a decision: Minister for Immigration and Border Protection v SZMTA & Anor [2019] HCA 3 at [45]-[47]; (2019) 264 CLR 421, per Bell, Gageler & Keane JJ; Hossain v Minister for Immigration [2018] HCA 34; (2018) 264 CLR 123 at 130 at [17]-[31], per Kiefel CJ, Gageler and Keane JJ.

90    In SZMTA at [45]-[47], Bell, Gageler and Keane JJ said:

45.    Materiality, whether of a breach of procedural fairness in the case of an undisclosed notification or of a breach of an inviolable limitation governing the conduct of the review in the case of an incorrect and invalid notification, is thus in each case essential to the existence of jurisdictional error. A breach is material to a decision only if compliance could realistically have resulted in a different decision.

46.    Where materiality is in issue in an application for judicial review, and except in a case where the decision made was the only decision legally available to be made, the question of the materiality of the breach is an ordinary question of fact in respect of which the applicant bears the onus of proof. Like any ordinary question of fact, it is to be determined by inferences drawn from evidence adduced on the application.

47.    The drawing of inferences can be assisted by reference to what can be expected to occur in the course of the regular administration of the Act. Although it is open to the Tribunal to form and act on its own view as to whether a precondition to the application of s 438 is met, the Tribunal can be expected in the ordinary course to treat a notification by the Secretary that the section applies as a sufficient basis for accepting that the section does in fact apply to a document or information to which the notification refers. Treating the section as applicable to a document or information, the Tribunal can then be expected in the ordinary course to leave that document or information out of account in reaching its decision in the absence of the Tribunal giving active consideration to an exercise of discretion under s 438(3). Absent some contrary indication in the statement of the Tribunal’s reasons for decision or elsewhere in the evidence, a court on judicial review of a decision of the Tribunal can therefore be justified in inferring that the Tribunal paid no regard to the notified document or information in reaching its decision.

91    In Minister for Immigration v SZVFW [2018] HCA 30; (2018) 264 CLR 541; (2018) 92 ALJR 713, Gageler J said at [49]:

The line is not drawn by reference to whether the primary judge's process of reasoning to reach a conclusion can be characterised as evaluative or is on a topic on which judicial minds might reasonably differ. The line is drawn by reference to whether the legal criterion applied or purportedly applied by the primary judge to reach the conclusion demands a unique outcome, in which case the correctness standard applies, or tolerates a range of outcomes, in which case the House v The King standard applies. The resultant line is not bright; but it is tolerably clear and workable.

92    The Tribunal engaged in the deliberative process of evaluation required of it by Direction 90 when reviewing the delegate’s decision but did so through the lens of an application for the revocation of the mandatory cancellation of a visa pursuant to s 501(3A). That exercise demanded a unique outcome following the evaluation process. That is not what is contemplated by s 501(1).

93    Had the Tribunal approached the correct question with a broad discretion in mind, realistically the result could have been different, particularly given the matters which weighed in favour of the decision to not refuse the applicant’s visa application (albeit of differing weights) being the best interests of minor children in Australia (Primary Consideration 3) - moderate; and in Other Considerations, the strength nature and duration of ties to Australia - strong.

94    Accordingly, I consider the Tribunal made a jurisdictional error.

Conclusion on grounds one and two

95    Grounds one and two of the application for judicial review should be allowed.

Proposed ground three

96    The applicant seeks leave to add a further ground to his originating application which is that further or in the alternative, the Tribunal failed to give proper, genuine and realistic consideration to the likelihood of the applicant engaging in further criminal or other serious conduct.

97    The first respondent accepts it does not suffer any specific prejudice but in view of the lack of merit in the proposed ground, submits that leave should not be granted: BET20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1539: at [36].

98    The applicant submits that because the Tribunal was distracted by s 501CA, and in particular whether there was “another reason”, the Tribunal did not deal properly with the relevance of the applicant’s criminal offending which was the reason the applicant failed the character test. On that basis, the applicant submits the Tribunal failed to give “proper, genuine and realistic consideration” to the likelihood of the applicant engaging in further criminal or other serious conduct. The applicant submits it was not enough for the Tribunal to hold there wasn’t a minimal or remote chance of re-offending.

99    The respondent refers to Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17, [26]; (2022) 96 ALJR 497 and the High Court’s observations concerning formulaic expressions, submitting that the Tribunal was required to consider the likelihood of the applicant engaging in further criminal or other serious conduct as required by paragraph 8.1.2(2)(b) of Direction 90.

100    The respondent submits that the Tribunal considered the question of the likelihood of the applicant engaging in further criminal or other serious conduct and at Reasons [38]-[60] and [81]-[94] the Tribunal gave careful and detailed consideration to the risk of the applicant re-offending.

101    As I have noted above, the task in assessing the criteria in Direction 90 is an evaluative exercise. The applicant’s submission is that the Tribunal did not deal properly with the relevance of the applicant’s criminal offending because it was distracted by the wrong question. Although I have found that the Tribunal addressed its evaluative task through the lens of addressing the wrong question, nonetheless, I am not satisfied the Tribunal failed to give proper consideration to the question of the likelihood of the applicant engaging in further criminal or other serious conduct as a part of its evaluative exercise.

102    Under those circumstances, there is no merit in the proposed ground and I decline to grant leave to the applicant to amend its originating application by adding ground three in terms of the annexure to its’ written submissions filed 17 June 2022.

CONCLUSION

103    It is for the reasons set out above that the application should be allowed, the decision of the second respondent dated 22 November 2021 be set aside and be remitted to the Tribunal to be determined according to law.

104    There is no reason why the usual order as to costs should not be made such that the first respondent is to pay the applicant’s costs.

105    There will be liberty to the parties to apply within seven days for an alternative costs order.

Associate:

Dated:    8 March 2023