Federal Court of Australia

Morgan v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 392

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time be allowed.

2.    The application be allowed.

3.    A writ of certiorari issue to quash the decision of the second respondent dated 9 February 2022.

4.    A writ of mandamus issue, remitting the matter to the second respondent and requiring it to determine the matter according to law.

5.    The first respondent pay the applicant’s costs, as agreed or as assessed.

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

REASONS FOR JUDGMENT

HESPE J:

INTRODUCTION

1    The Applicant seeks judicial review of a decision of the Administrative Appeals Tribunal. The Tribunal affirmed a decision of the Minister made under s 501CA of the Migration Act 1958 (Cth) not to revoke the cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa. The Applicant has also made an application for an extension of time in which to seek judicial review.

2    The Minister conceded, in light of the explanation for the delay provided by the Applicant and the revised grounds of review, that the Court should grant the extension of time. That concession was properly made. At the time of making his application, the Applicant was self‑represented, he had attempted to file within the requisite time but had provided incomplete forms and he would face significant prejudice if the application to extend time were refused.

BACKGROUND

3    The Applicant is a citizen of New Zealand and has lived in Australia since 1977. In September 2002, he was granted a Class TY Subclass 444 Special Category (Temporary) visa.

4    The Applicant and his partner, Ms MZ, have three sons. Each of their sons has been diagnosed with autism spectrum disorder. The two eldest sons also have diagnosed intellectual disabilities and the youngest son has a potential assessment that he may also have an underlying intellectual disability. Each child has a separate plan under the National Disability Insurance Scheme. The Applicant has been diagnosed by a forensic psychologist as having a significant verbal comprehension impairment.

5    On 8 April 2021, the Applicant was sentenced to eight months’ imprisonment (partially suspended) for two counts of an indecent act with a child under 16 years of age. The offences occurred between 1997 and 2000. On 27 April 2021, the Applicant’s visa was mandatorily cancelled pursuant to s 501(3A) of the Act.

6    In accordance with s 501CA(3) of the Act, the Applicant was notified of the cancellation decision and invited to make representations in support of any request to revoke the cancellation. The Applicant’s request for revocation of the decision to cancel his visa was unsuccessful. The Applicant sought review of the decision not to revoke the cancellation in the Tribunal under s 500(1)(ba) of the Act. The Applicant was self-represented before the Tribunal.

7    In undertaking its review, the Tribunal was bound to comply with 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), made under s 499(1) of the Act. Relevantly, Direction 90 provides:

8. Primary considerations

In making a decision under section 501(1), 501(2) or 501CA(4), the following are primary considerations:

…

(4)    expectations of the Australian community.

…

8.4 Expectations of the Australian Community

(1)    The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.

(2)    In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:

…

(c)    commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, “serious crimes” include crimes of a violent or sexual nature …

(3)    The above expectations of the Australian community apply regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.

(4)    This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case.

9. Other considerations

(1)    In making a decision under section 501(1), 501(2) or 501CA(4), other considerations must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):

…

b)    extent of impediments if removed; …

…

9.2 Extent of impediments if removed

(l)    Decision-makers must consider the extent of any impediments that the noncitizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:

a)    the non-citizen’s age and health;

b)    whether there are substantial language or cultural barriers; and

c)    any social, medical and/or economic support available to them in that country.

8    On 9 February 2022, the Tribunal affirmed the Minister’s decision. The Tribunal found the protection and expectations of the community outweighed the considerations in favour of revocation including the best interests of the Applicant’s three children, his partner Ms MZ, and the impediments to the Applicant being removed.

THE TRIBUNAL’S REASONS

9    There was no challenge to the Tribunal’s conclusion that the Applicant failed the character test in s 501(3A)(ii).

10    The issues before the Court concern whether the Tribunal erred in its consideration of the extent of impediments if removed (as required by paragraph 9.2 of Direction 90) and the expectations of the Australian community (as required by paragraph 8.4 of Direction 90).

11    The Tribunal considered the extent of impediments if removed at [106] to [113] of its reasons. The first issue in the appeal revolved in particular around the last four of those paragraphs:

110.    New Zealand’s society is as close to Australia’s as any other country of the world. The Tribunal is satisfied that there would be no cultural or language barriers facing the Applicant if he was returned there. In terms of his health, he reported to Dr Cunningham that he was in good health apart from a hernia. The Applicant told the Tribunal in evidence that he has a “loose shoulder”. He records in the personal circumstances form he submitted to the Department that he has some arthritis (GD, p 78).

111.    The Applicant will shortly attain 66 years of age. Given that he was born in Thames in New Zealand, on his own evidence, and previously held a visa available only to New Zealand citizens, I am satisfied that he is a New Zealand citizen and, as such, would be able to avail himself of the social security benefits available to other New Zealand citizens.

112.    The Tribunal accepts that the Applicant would be significantly affected by being separated from his long-term de facto partner, his three sons and his de facto partner’s mother, and he would essentially have no support network upon which to draw in New Zealand, apart from one elderly sister and one who is disabled. He said he would be devastated if required to return.

113.    The Tribunal finds that this consideration weighs slightly, on account of the Applicant’s age, in favour of revoking the mandatory cancellation of the visa.

12    The Tribunal considered the expectations of the Australian community at [96] to [103] of its reasons. The remaining issues in the appeal revolve in particular around the last five of those paragraphs:

99.    The expectation of the Australian community is taken to be a “norm”. The word ‘norm’ means of a ‘standard’ or ‘pattern or type’. A superseded version of the Direction (Direction No. 65) contained generally similar wording to paragraph 8.4 and was considered by the Full Court of the Federal Court of Australia in FYBR v Minister for Home Affairs [2019] FCAFC 185 (‘FYBR’). The Court held that it is not for a decision-maker to make his or her own personal assessment of what the “expectations” of the Australian community may be. The expectations articulated in the Direction are “deemed”; they are what the executive government has declared are its views, not what a decision‑maker, including this Tribunal, may seek to derive by some other evaluative or balancing process.

100.    Direction No. 90 was issued after FYBR and imports the statement that the expectations of the Australian community are to be considered as a “norm”, which acknowledges the approach taken by the plurality of the Court in FYBR. Therefore, while the expectations of the community are “deemed” to weigh against an applicant (a position accepted by the parties in this matter), the relative weight will be affected by circumstances in the individual case.

101.    The Tribunal accepts that the Applicant does not have a long history of offending. The offending was a long time ago but contained in one instance in 1996 and over the period between 1996 and 2000. While it was not constant offending in that period, it was maintained for around three years and clandestine. I further accept, putting aside the ‘blue card’ matter of 2019 and speeding infractions, that there is no evidence of the Applicant offending over the last 20 or so years. He has been before the Courts on three occasions, but two of these offences have related to improper conduct in the presence of female children, and the principal offences, grossly so.

102.    I conclude that the expectation of the community would be that his visa is not restored. There is very little tolerance in society for adults sexually offending against children, no matter that the offending was many years ago. The evidence in the Magistrate’s sentencing remarks satisfies me, even without a copy of the victim impact statement, that the offending against that (now) young woman between 1997 and 2000 has had a lasting, perhaps life-long, negative effect on her.

103.    The Tribunal finds that this primary consideration weighs against revoking the mandatory cancellation of the Applicant’s visa, and the weight I give that is heavy.

13    The Tribunal’s summation included the following:

125.    The Tribunal has considered all the relevant primary and other considerations. In terms of the primary considerations relating to the protection of the Australian community and the expectations of that community, both weigh heavily against the Applicant. The primary consideration relating to the best interests of the Applicant’s three children weighs heavily in his favour. The remaining primary consideration is not engaged.

126.    In reference to the other considerations, the extent of impediments if removed weighs slightly in his favour because of his age. The consideration relating to links with the Australian community weighs strongly in his favour, mainly because of his relationship with Ms MZ. The other considerations are not engaged and weigh neutrally in this assessment.

GROUND ONE

14    By ground one of his application, the Applicant contends that the Tribunal failed to take into account a mandatory consideration, and/or failed to consider a claim squarely raised by the material and/or asked itself the wrong question in considering the impediments to removal consideration pursuant to paragraph 9.2 of Direction 90. The particulars to that ground were as follows:

a.    The Tribunal was required pursuant to paragraph 9.2 of Direction no 90 and s 499(2A) of the Migration Act 1958 (Cth) to:

i.    consider the impediments to the [A]pplicant’s removal to New Zealand; and

ii.    in assessing the weight to be given to the consideration to have regard to the [A]pplicant’s health.

b.    A claim was clearly articulated that the [A]pplicant had experienced depression in the past and may experience depression if removed to New Zealand.

c.    A claim was squarely raised from the material that the [A]pplicant would face difficulties in establishing himself in New Zealand due to his verbal comprehension impairment.

d.    The Tribunal did not consider the impact of the [A]pplicant’s verbal comprehension impairment or risk of depression in relation to the impediments to removal.

e.    The Tribunal therefore fell into jurisdictional error as:

i.    it failed to consider a claim clearly made and/or squarely raised as to why there was another reason to revoke the cancellation;

ii.    failed to take into account a mandatory relevant consideration, the [A]pplicant’s health, in assessing the weight to be given to paragraph 9.2(1)(a) of Direction no 90; and/or

iii.    asked itself the wrong question in relation to paragraph 9.2 of Direction No 90 by construing ‘health’ as referring only to physical health.

15    There are two aspects to ground one:

(1)    a purported failure by the Tribunal to consider the Applicant’s verbal comprehension impairment in relation to the impediments to removal; and

(2)    a purported failure by the Tribunal to consider the Applicant’s risk of depression in relation to the impediments to removal.

16    It is convenient to deal with each of these aspects in turn.

Verbal Comprehension Impairment

17    Included in the material before the Tribunal was a report from a forensic psychologist, Dr Cunningham, dated 7 April 2021, prepared in connection with a hearing before the Magistrates’ Court of Victoria on 8 April 2021 at which the Applicant entered a guilty plea and was convicted on two counts of the offence of indecent act with a child under 16 years of age.

18    In that report, Dr Cunningham recorded:

(1)    In relation to the Applicant’s medical history, that the Applicant “suffered a hernia when fruit picking” and “reported no other serious problems”.

(2)    The Applicant reported no drug or alcohol abuse.

(3)    Prior to meeting his partner, the Applicant reported feelings of depression, loneliness and isolation but has not felt this way in his current relationship.

(4)    The Applicant did not present with a mental illness.

19    Dr Cunningham performed a psychometric assessment of the Applicant and expressed the following conclusions:

The Verbal Comprehension Index requires verbal reasoning, access to stored verbal knowledge and verbal expression. Subtests on this index assess verbal reasoning, word associations and the ability to describe the meaning of words. On the Verbal Comprehension Index, Mr Morgan scored better than .5% of his age peers where 99.5% of his age peers would do better.

The Working Memory Index requires the ability to temporarily retain information in memory and manipulate this information to produce a result. This ability requires attention, concentration and mental control. On the Working Memory Index, Mr Morgan performed better than 37% of his age peers, where 63% of his age peers would do better.

Mr Morgan presents with a significant verbal comprehension impairment.

20    Dr Cunningham expressed the following conclusions as a summary and opinion:

Mr Morgan is a sixty-five-year-old male charged with Indecent Act with a Child Under the Age of Sixteen Years. Results of the mental state assessment were not consistent with the presence of a mental illness. Psychometric testing indicated significant impairments in verbal comprehension. There was insufficient evidence for a diagnosis of Pedophilia.

Mr Morgan presents with significant impairments in verbal comprehension. In my opinion, these impairments compromised his ability to cope with school, source and maintain stable employment and develop relationships with others. At the time of the offences, Mr Morgan was depressed, lonely and isolated. In the context of his impairments, Mr Morgan lacks insight into his own internal psychological and emotional processes. In my opinion, Mr Morgan’s difficulty understanding the motivations for his behaviour and his lack of empathy for the victim are reflections of these impairments. Mr Morgan has improved his mental state since forming a relationship with his current partner. He lives in Queensland with his partner and his three disabled children. In my opinion, Mr Morgan’s partner, his age and responsibilities as a father are protective factors against future offending.

21    The Tribunal’s reasons demonstrate that it was aware of Dr Cunningham’s report. The Tribunal noted the report at [59] and quoted from the contents of the report in its consideration of “the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct” at [66] to [69], and observed at [110] that the Applicant had “reported to Dr Cunningham that he was in good health apart from a hernia” in its consideration of the extent of impediments to removal. The Tribunal did not refer to the Applicant’s verbal comprehension impairments in its reasons recording its consideration of the impediments to the Applicant’s removal.

22    As the Minister contended, the Applicant did not refer to these impairments in the “personal circumstances” form he submitted to the Minister.

23    The Minister contended that a claim that the Applicant’s cognitive impairments would be an impediment that the Applicant may face if removed from Australia, in establishing himself and maintaining basic living standards (in the context of what is generally available to other citizens), did not clearly emerge from Dr Cunningham’s report, having regard to the context in which the report was produced and the terms in which it was expressed. The report was not produced for the purposes of the Tribunal hearing but in the context of a plea hearing. It was submitted that the report expressed the impairments that came from the Applicant’s verbal comprehension as statements of historical fact rather than present fact.

Depression

24    In his “personal circumstances form” the Applicant in response to the question “do you have any concerns or fears about what would happen to you if you were to return to your country of citizenship?” stated:

Yes I am very worried that my equilibrium would be irrevocably disturbed, because I would be isolated from my family and would probably become morose and depressed. I worry that I would need to be on psychiatric drugs as a result of such feelings.

25    Dr Cunningham’s report recorded that “[a]t the time of the offences, Mr Morgan was depressed, lonely and isolated” and that, prior to meeting his partner, the Applicant “reported feelings of depression, loneliness and isolation”.

26    It was submitted for the Applicant that he had clearly articulated a concern he would experience depression and the Tribunal had failed to take account of the Applicant’s mental health in considering the impediments to his removal.

Consideration of Ground One

27    It was common ground that, by virtue of Direction 90, the consideration of any impediments to the Applicant’s removal was a mandatory consideration in so far as those impediments concerned impediments that the Applicant might face in establishing himself and maintaining basic living standards: Manebona v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 730 at [15] (SC Derrington J). So much is consequence of the terms in which Direction 90 is expressed: see WCGD v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1419 at [44] (Thawley J) (albeit in relation to the predecessor to Direction 90).

28    In considering the impediments to removal, the Tribunal is required to consider not only those claims the subject of clearly articulated argument, but also those which clearly emerge from the materials: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 at 17–8 [55] and 22 [68] (Black CJ, French and Selway JJ). To clearly emerge from the material, the claim must be based on “established facts”: NABE at 17–8 [55] (Black CJ, French and Selway JJ); SZUTM v Minister for Immigration and Border Protection [2016] FCA 45; (2016) 241 FCR 214 at 227 [38] (Markovic J); AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89; (2018) 261 FCR 503 at 510 [18] (Collier, McKerracher and Banks-Smith JJ). A Court will generally be more open to find an unarticulated claim clearly emerges from the materials where a party is unrepresented: Kasupene v Minister for Immigration and Citizenship [2008] FCA 1609 at [21] (Flick J). The Court observes that, here, not only was the Applicant not represented before the Tribunal, he had been assessed as presenting with significant impairments in verbal comprehension.

29    The materials before the Tribunal included Dr Cunningham’s report. The Court does not accept the Minister’s construction of that report. Although not prepared for the purposes of the Tribunal hearing, not only was the report before the Tribunal, the Tribunal relied upon the report in relation to the statements in it about the Applicant’s physical health in its consideration of the impediments to the Applicant’s removal. That same report states that, as at the date of the report, the Applicant continued to suffer significant cognitive impairments. The Tribunal accepted as an established fact that the Applicant did suffer cognitive deficiencies (at [71], [78]). Dr Cunningham explained that the Applicant’s impairments had, in the past, compromised his ability to cope with school, source and maintain stable employment and develop relationships with others. Dr Cunningham stated that the Applicant presented with risk factors under the “Risk for Sexual Violence Protocol” including “Problems with Stress and Coping”, “Problems with Intimate Relationships”, “Problems with Non-Intimate Relationships” and “Problems with Employment”. Given the Applicant continued to present with significant impairments in verbal communication, it clearly emerged from Dr Cunningham’s report that there was a risk that those impairments would adversely impact the ability of the Applicant to maintain stable employment and develop relationships with others, which might be expected to impede the ability of the Applicant to establish himself in New Zealand.

30    Whilst the Tribunal set out Dr Cunningham’s conclusions in relation to the Applicant’s verbal comprehension impairments elsewhere in its reasons, the Court is satisfied that it did not consider the issues posed by the Applicant’s cognitive impairments when considering paragraph 9.2(1) of Direction 90. This is apparent not only from the reasoning expressed at [106]–[112] of the Tribunal’s reasons, but also in the conclusions expressed at [113] and [126], which refer only to the Applicant’s age as an impediment to removal.

31    The Tribunal’s failure to consider the potential impact of the Applicant’s cognitive impairment on his ability to establish himself and maintain basic living standards in New Zealand (in the context of what is generally available to other citizens of that country) was a failure to take into account a mandatory consideration. The Minister did not contend (rightfully so) that if there was such a failure, it would not be material. The consideration in paragraph 9.2 of Direction 90 was found by the Tribunal (at [113]) to weigh “slightly, on account of the Applicant’s age, in favour of revoking the mandatory cancellation of the visa”. If the Tribunal had considered the Applicant’s significant cognitive impairment, it may have attributed greater weight to the consideration. It is possible that this may have led to a different balancing of the competing considerations in reaching a conclusion about revocation: see, eg, FCFY v Minister for Home Affairs (No 2) [2019] FCA 1990 at [65] (Thawley J); WCDG at [48] (Thawley J). The error of the Tribunal was jurisdictional.

32    The Court does not conclude that there was a failure by the Tribunal to take into account a mandatory consideration in relation to a risk that the Applicant might suffer depression upon his removal from Australia in considering the impediments if the Applicant were removed from Australia. As the High Court said in Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 at [25] (Kiefel CJ, Keane, Gordon and Steward JJ), what is necessary to comply with the statutory requirement for a valid exercise of power will necessarily depend on the nature, form and content of the representations. Here, the representations in relation to the risk of depression were to be found in the Applicant’s representations. Dr Cunningham reported that the Applicant was not suffering from any mental health or psychiatric condition. There was no evidence that the Applicant had ever been prescribed anti‑depressant medication. The Tribunal accepted that the Applicant would be significantly affected by being separated from his long term de facto partner, his three sons, and his de facto partner’s mother, and observed that the Applicant has said he would be “devastated if required to return” (at [112]). The Tribunal addressed itself to and engaged with the Applicant’s representations concerning the impact on his mental health should he be removed from Australia. There was no jurisdictional error based on a failure to consider the Applicant’s risk of depression.

33    For the reasons set out above, ground one is made out. Because it will be necessary for the Applicant’s application to the Tribunal to be reconsidered, the remaining grounds of appeal are also addressed.

GROUNDS TWO AND THREE

34    Because grounds two and three both concern the manner in which the Tribunal addressed the consideration of the expectations of the Australian community (for the purposes of paragraph 8.4 of Direction 90), it is convenient to address these grounds together. By these grounds, the Applicant contends that the Tribunal:

(1)    failed to consider countervailing considerations in considering the relative weight to be given to the expectations of the Australian community; and/or

(2)    asked itself the wrong question by forming its own view as to the Australian community’s expectations.

35    The Applicant submitted that it was part of the Tribunal’s statutory task in deciding the weight to be attributed to the expectations of the Australian community to take account of countervailing factors and that the Tribunal here attributed heavy weight to the expectations of the Australian community without analysis of the critical countervailing considerations of the Applicant’s children and their mother. The Applicant relied upon the decision in Kelly v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 396 at [100]–[101], [108] (Beach J), where the Court concluded that:

100.    …[A] fair reading of the Minister’s reasons is that he attributed “significant weight” to his concept of the “expectations of the Australian community” without having regard to the specific circumstances of the applicant’s case, including the applicant’s very low risk of reoffending and the very serious impact of an adverse decision on him noting his medical diagnosis and inability to travel.

101.    At the least the Minister’s failure here to consider the specific circumstances of the applicant’s case in assessing what weight to give to the “expectations of the Australian community” reflects a failure to give active intellectual consideration to a very relevant issue that impacted on the applicant’s fate.

…

108.    … [I]t was incumbent upon [the Minister] to actively intellectually consider what weight to give to that deemed expectation in light of the evidence of the specific circumstances particular to the applicant.

36    The Applicant further contended that the Tribunal fell into error at [102] of its reasons by determining for itself the expectations of the Australian community when its statutory task was to weigh the expectation deemed by the Government to be held by the Australian community, as expressed in Direction 90. It is not for the Tribunal to make its own assessment of the community expectations and to give that assessment weight as a “primary consideration”: see FYBR v Minister for Home Affairs [2019] FCAFC 185; (2019) 272 FCR 454 at 472 [67] (Charlesworth J).

Consideration of Grounds Two and Three

37    The present case is distinguishable from Kelly. Unlike the reasons of the Minister considered in Kelly, it is apparent from the Tribunal’s reasons at [100]–[101] that the Tribunal was not only aware of the need to consider the circumstances in the individual case in considering the relative weight to be accorded to the expectations of the Australian community, but that the Tribunal considered circumstances specific to the Applicant. This is not a case, contrary to the Applicant’s submissions, where the Tribunal “simply proceeded to assign heavy weight to the consideration without any analysis of relevant countervailing consideration[s]”.

38    The essence of the Applicant’s complaint was that the Tribunal had regard to the wrong countervailing considerations. However, it was common ground that there were no mandatory countervailing factors required to be considered by the Tribunal in determining the weight to be accorded to the expectations of the Australian community.

39    There is no doubt that the Tribunal considered the interests of the Applicant’s children (at [85]–‍[95]) and on Ms MZ (at [118]) in making its ultimate decision.

40    As the High Court said in Plaintiff M1 at [24] (Kiefel CJ, Keane, Gordon and Steward JJ):

[24]    …[T]he 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.

(Footnotes omitted.)

And at [26]–[27]:

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

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

(Footnotes omitted.)

41    The Tribunal undertook the task required of it as explained in FYBR at [75]–[77] (Charlesworth J) and [92]–[93] (Stewart J).

42    The Applicant’s contention that the Tribunal impermissibly determined the expectations of the Australian community itself is also not accepted. The sentence at [102] of its reasons that “[t]here is very little tolerance in society for adults sexually offending against children, no matter that the offending was many years ago”, must be read in the context of the reasons as a whole. The Tribunal correctly stated the principles at [99]–[100]. The sentence at [102] is no more than a summary of the content of Direction 90 appearing at [96]–‍[97] and reflects the fact that Direction 90 says nothing about the historical nature of the offending in its description of the expectations of the Australian community. The Tribunal’s reasons do not indicate that the Tribunal was doing anything more than applying Direction 90 in its consideration of the expectations of the Australian community.

43    Grounds two and three are not made out.

DISPOSITION

44    The failure to take into account a mandatory consideration constitutes jurisdictional error, assuming it is material. So too does a failure to comply with a direction made under s 499 of the Act. For the reasons given at [32], the error was material.

45    The application for an extension of time is to be allowed and the application is to be allowed with costs. Writs of mandamus and certiorari should issue.

Associate:

Dated:    1 May 2023