Federal Court of Australia

Brownlie v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 436

ORDERS

THE COURT ORDERS THAT:

1.    A writ of certiorari be issued quashing the decision of the second respondent of 26 May 2021 by which it affirmed the decision of the delegate of the first respondent to refuse to revoke the mandatory cancellation of the applicant’s visa under section 501CA(4) of the Migration Act 1958 (Cth) made on 3 March 2021.

2.    The application for review be remitted to the second respondent for reconsideration and determination according to law.

3.    The costs of the application are reserved.

4.    On or before 7 June 2023 the applicant is to file and serve a minute of proposed orders for the costs of the application together a written outline of submissions (limited to 3 pages) and any affidavit(s) in support.

5.    On or before 14 June 2023 the first respondent is to file and serve any competing minute of proposed orders for the costs of the application together with a written outline of submissions (limited to 3 pages) and any affidavit(s) in support.

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

REASONS FOR JUDGMENT

FEUTRILL J:

Introduction

1    These reasons concern an application for judicial review of a decision of a member of the second respondent (Tribunal) by which, upon review, the Tribunal affirmed a decision of a delegate of the first respondent (Minister) not to revoke the mandatory cancellation of the applicant’s Class BF transitional (permanent) visa under s 501CA(4) of the Migration Act 1958 (Cth). The applicant’s visa was cancelled because he failed to pass the character test under ss 501(3A), 501(6)(a) and 501(7)(c) of the Act.

2    The applicant contends that the Tribunal failed to evaluate, deal with or consider information about the applicant’s mental health that was material to the nature and seriousness of his offending history. Further, the Tribunal failed to consider material documenting that the applicant is an Aboriginal person in the assessment of the strength and nature of his ties to Australia. Each of the ‘nature and seriousness’ of the applicant’s offences and the ‘strength and nature of his ties to Australia’ were mandatory relevant considerations that the Tribunal was bound to take into account in reaching the correct or preferable decision under Direction 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA.

3    For the reasons set out below, I am satisfied that, although the applicant made no express representation that he is an Aboriginal Australian or that he identified as an Aboriginal person, the repeated references in the material before the Tribunal to the applicant’s indigenous heritage and evident identification, at least at times, as an Aboriginal person along with the evident acceptance by members of the public service of the State of Victoria that the applicant was an Aboriginal person and was to be treated as subject to the recommendations of The Royal Commission into Aboriginal Deaths in Custody, were such that the Tribunal was obliged to consider the strength, duration and nature of the applicant’s social, cultural and spiritual links with the Australian Aboriginal community. The evidence and materials before the Tribunal raised a ‘case’ that was not articulated to the effect that the applicant identified as an Aboriginal Australian and, by necessary implication, had social, cultural and spiritual ties to members of the Australian Aboriginal community. While evidence of those ties was sparse, the Tribunal was bound to consider them and it failed to do so. There will be an order quashing the Tribunal’s decision to affirm the delegates decision not to revoke the cancellation of the applicant’s visa and an order remitting the matter to the Tribunal for determination according to law. I will hear the parties on the question of costs.

Factual background

4    The applicant was born in Wales, United Kingdom and arrived in Australia in 1984 with his family at the age of three. Since arriving in Australia, the applicant has not departed Australia, nor obtained Australian citizenship.

5    The applicant has one son with his former partner. His son was born in 2002 and is an Australian citizen. Due to various personal circumstances, the applicant assumed the role of primary caregiver for his son in his infancy which was supplemented by the applicant’s mother (who is now deceased) and other family members during the periods that the applicant was in custody. The applicant’s other immediate family members, including his father, three siblings, three nieces and nephews, two of whom are minors, and minor step-brother, reside solely in Australia. In the material before the Tribunal, the applicant indicated that he has several aunts, uncles and cousins who resided in Ireland but he was not aware of, or in contact with, any relatives in Wales. The applicant’s father, with whom he has recently rekindled a relationship after years of estrangement, suffers from a terminal illness.

6    With the exception of the period from 2002 to 2007, when the applicant was a single ‘stay at home parent’ to his son, the applicant had intermittent employment as a bricklayer and rail maintenance operator. Since 2013, the applicant has received a disability support pension. No information was tendered by the parties identifying the reasons for the grant of the pension.

7    The applicant has an extensive criminal history dating back to when he was a juvenile. The applicant has been found guilty of approximately 180 offences of varying degrees of severity. According to a Corrections Victoria File note, which was before the Tribunal, the applicant has been in custody in Victoria 18 times, with his first term of incarceration in 1998. The applicant has primarily resided in Victoria.

8    The applicant’s extensive offending history was described by the Tribunal (at para [73] of the Tribunal's Decision and Reasons for Decision (RFD)) as falling into the following categories:

(a)    violent crimes;

(b)    violent crimes against women;

(c)    conditional liberty offences (i.e., escaping from detention, contravening bail conditions);

(d)    drug offences;

(e)    dishonesty offences; and

(f)    public nuisance, damaging property and driving offences.

9    As was acknowledged by the applicant and the multiple authorities with whom he has had contact, drug and alcohol abuse was a common element or contributing factor of the applicant’s offending.

10    The applicant’s precarious immigration status, in light of his criminal offending, had been brought to his attention by immigration authorities on at least two occasions prior to the revocation of his visa on 20 February 2019, which is discussed below. Once in March 2002 and again in October 2008. The applicant denied receiving the notification in March 2002, but acknowledged he had received the October 2008 notice.

11    After the second notification, the applicant’s offending continued for a further 10 years until August 2018 when he breached the terms of a Drug Treatment Order and was re-sentenced to serve the unexpired term of 263 days of imprisonment. This sentence prompted the mandatory cancellation of his visa under s 501(3A) of the Act.

12    The applicant made various representations to a delegate of the Minister against revocation in accordance with s 501CA(4) of the Act. In May 2019, upon serving his 12 month sentence, the applicant was released from prison and taken into immigration detention.

13    On 3 March 2021, a delegate of the Minister notified the applicant of the decision not to revoke the cancellation of his visa. On 8 March 2021, the applicant made an application to the Tribunal for review of the delegate’s decision. On 26 May 2021, the Tribunal affirmed the delegate’s decision and published its reasons. On 25 June 2021, the applicant filed the originating application for judicial review of the Tribunal’s decision in this Court under s 476A of the Act. That application was subsequently amended on 10 May 2022 and 9 June 2022.

14    The matter was listed for hearing on 3 June 2022. At that hearing, based on the materials referred to later in these reasons, the Court raised with counsel for each of the parties the possibility that the applicant was of indigenous heritage. The applicant then made an application to adjourn the hearing, which was not opposed by the Minister, and orders were made adjourning the matter and directing that the applicant file and serve a further amended originating application for review, supplementary submissions and any affidavit(s) in support. The Minister was also directed to file submissions in reply. Both parties availed themselves of the opportunity to file further material and the matter was re-listed for hearing on 9 August 2022.

15    In the meantime, on 6 June 2022, the applicant issued a summons for a writ of habeas corpus in the Supreme Court of Victoria. Those proceedings were transferred by order of the Supreme Court to this Court on 9 June 2022. On 10 June 2022, the applicant was released from immigration detention. At the hearing on 9 August 2022, the Court granted the applicant leave to discontinue the habeas corpus proceedings.

Legislative scheme

16    Section 501(3A) of the Act provides that the Minister must cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the character test, relevantly because of the operation of ss 501(6)(a) and 501(7)(c) (substantial criminal record on the basis of a sentence of imprisonment of 12 months or more), and that the person is serving a sentence of imprisonment on a full-time basis in a custodial institution for an offence against a law of the Commonwealth, State or Territory. It is common ground that the applicant does not pass the character test.

17    The rules of natural justice do not apply to a decision made under s 501(3A): s 501(5) of the Act. Therefore, a person’s visa is cancelled without that person being afforded procedural fairness: Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 96 ALJR 497 at [10].

18    A consequence of the cancellation of a visa under s 501(3A) is that that the former visa holder is no longer a lawful non-citizen and becomes an unlawful non-citizen: ss 13, 14 and 15 of the Act. The former visa holder must be taken into immigration detention and must be removed (deported) from Australia as soon as reasonably practicable: ss 189 and 198 of the Act.

19    Section 501CA(3) of the Act makes provision for a procedure by which the decision to cancel a visa under s 501(3A) (referred to as the original decision) may be revoked. As soon as practicable after making the original decision the Minister must: (a) give the person a written notice that sets out the original decision and particulars of certain information the Minister considers would be the reason, or part of the reason, for making the original decision (referred to as relevant information); and (b)‘invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision’. Regulation 2.52 of the Migration Regulations 1994 (Cth) makes provision for the manner in which representations are to be made to the Minister.

20    Section 501CA(4) of the Act provides that the Minister may revoke the original decision if: (a) the person makes representations in accordance with the invitation; and (b) the Minister is satisfied: (i) that the person passes the character test; or (ii) that there is another reason why the original decision should be revoked.

21    Section 496 of the Act makes provision for the Minister to delegate to a person any of the Minister’s powers under the Act. A delegate is, in the exercise of a delegated power, subject to the directions of the Minister. Section 499 of the Act provides that the Minister may give written directions to a person or body having functions or powers under the Act.

22    The Minister has issued a number of directions regarding the exercise of a delegate’s power under s 501CA(4) of the Act. The applicable direction in this case was Direction 90. Under s 499(2A), the delegate was required to comply with Direction 90. The Tribunal, in the exercise of its ‘review’ function under s 500(1)(ba) of the Act, was also obliged to comply with Direction 90.

23    Section 474 of the Act provides that a privative clause decision: is final and conclusive; must not be challenged, appealed against, reviewed, quashed or called in question in any court; and is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account. The effect of s 474 is to exclude a court from reviewing and granting relief for any error a decision-maker has made in respect of a privative clause decision. A decision of the Minister or a delegate refusing to revoke a mandatory cancellation of a visa is a privative clause decision. However, where a delegate of the Minister has made such a decision, the former visa-holder has a right to apply to the Tribunal for a ‘review’ of that decision under s 500(1)(ba) of the Act. A decision of the Tribunal under s 500(1)(ba) is also a privative clause decision to which s 474 of the Act applies.

24    Notwithstanding the terms of s 474 of the Act, the section does not have the effect of excluding the original jurisdiction of the High Court to review decisions of administrative decision-makers for jurisdictional error under s 75(v) of the Constitution: Plaintiff S157/2002 v The Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476 at [76]. Where the Tribunal has made or purported to make a privative clause decision, the High Court’s jurisdiction to review such a decision for jurisdictional error is conferred on the Federal Court. Otherwise, s 474 of the Act and s 43C of the Administrative Appeals Tribunal Act 1975 (Cth), excludes any right to appeal to the Federal Court from a decision of the Tribunal that is a ‘privative clause decision’.

25    The Federal Court’s original jurisdiction to review a decision of the Tribunal is derived from ss 75(v) and 77(i) of the Constitution and s 476A(1)(b) of the Act. The effect of ss 474 and 476A of the Act is to limit the jurisdiction of the Court to the same jurisdiction as that which the High Court is able to exercise under s 75(v) of the Constitution with respect to a ‘migration decision’ that is a ‘privative clause decision or a purported privative clause decision’ of the Tribunal on review under s 500(1)(ba) of the Act. The Court’s power on such a review is limited to considering the extent to which the Tribunal exercised its powers within the limits of its statutory authority or failed to exercise powers it was bound to exercise. ‘The inquiry is not about whether a decision which was made in the exercise of the authority was right or wrong on its merits. It is an inquiry about the boundaries of the power conferred’: Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 at [160].

26    The constitutional writs referred to in s 75(v) of the Constitution extend the Court’s jurisdiction to grant relief in the form of: an order restraining the Tribunal from exceeding its jurisdiction (writ of prohibition); an order commanding the Tribunal to fulfil a statutory duty that remains unperformed, actually or constructively (writ of mandamus); or an injunction. The Court also has jurisdiction to grant relief ancillary to the constitutional writs in the form of an order quashing or setting aside a decision that was made in excess of the limits of statutory authority or a declaration of right pertaining to the exercise or failure to exercise power: e.g., Re McBain; Ex parte Australian Catholic Bishops Conference [2002] HCA 16; (2002) 209 CLR 372 at [176].

Issues

27    The applicant’s amended originating application has the following two grounds of review:

1.    The Tribunal erred in its statutory task in that it did not evaluate, deal with nor consider information about the Applicant’s diagnoses of and treatment for bi-polar disorder and schizophrenia, including information from ‘independent and authoritative sources’, where those diagnoses were material to, at least, ‘the nature and seriousness’ of his offending history.

2.    The Tribunal erred in its exercise of the discretion in s 501CA of the Act by failing to consider the material documenting that the Applicant was Aboriginal in the context of its assessment of the strength and nature of his ties to Australia.

28    Neither the applicant’s formal representations made in response to the Minister’s invitation under s 501CA(3) of the Act nor his submissions made to the Tribunal raised his mental illness as a matter to be considered and taken into account when assessing his criminal culpability (nature and seriousness of his conduct) or the risk of him reoffending (risk to the Australian community). Likewise, the applicant’s identification as an Aboriginal Australian and social links to members of the Australian Aboriginal community were not raised as a matter to be considered and taken into account when assessing the strength, nature and duration of his ties to the Australian community.

29    The principal issues raised by the applicant’s grounds of review concern the extent to which, notwithstanding that these identified matters were not expressly raised as part of the applicant’s ‘case’ in the Tribunal, the Tribunal was nonetheless obliged to consider them as obvious yet unarticulated representations: (1) diminishing the seriousness of his offending and risk of his re-offending; and (2) of a separate and material tie to the Australian community. The Minister disputed that the Tribunal was under any obligation to consider these matters because neither was raised by the applicant in his ‘case’ before the Tribunal. Otherwise, it appears to be accepted that if the Tribunal was obliged to consider either or both of the matters it failed to do so and such a failure was material and would result in jurisdictional error.

Applicable principles

30    While there have been many decisions of the High Court and this Court considering the legal principles applicable to jurisdictional error and the constitutional writs, in general, and in the context of the exercise of the power to revoke a decision to cancel a visa in s 501CA(4), in particular, the issues raised in the applicant's grounds are not without difficulty to resolve and the principles are often expressed in slightly different ways in the authorities, as applied to the facts of each case. I have set out the principles at some length even though in many respects these principles are well-established and (or) not controversial with a view to collating those principles that are relevant to the disposition of this application.

Jurisdictional error

31    The concept of jurisdictional error is not straight-forward. Part of the difficulty is that the term ‘jurisdictional error’ describes a conclusion rather than a legal principle as such. It is ‘an expression not simply of the existence of an error but of the gravity of that error’: Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123 at [25]. At the heart of the concept is the notion that administrative decision-makers and tribunals of limited jurisdiction must exercise decision-making powers when the legislative framework obliges them to do so and, in any case, within the legislated boundaries of those powers. Relevantly, jurisdictional error arises, subject to materiality, where a decision-maker fails to exercise power when obliged to do so, or exceeds the statutory limits of power: Kirk v Industrial Court (NSW) [2010] HCA 1; (2010) 239 CLR 531 at [72]; Craig v The State of South Australia [1995] HCA 58; (1995) 184 CLR 163 at 176-180. The current approach to the identification of jurisdictional error, as Martin CJ observed in Laing O’Rourke Australia Construction Pty Ltd v Samsung C&T Corporation [2016] WASCA 130; (2016) 50 WAR 399 (at [95]) ‘does not place undue emphasis upon the application of general verbal formulations or the characterisation of functions. Rather, [it] focuses upon identification of the boundaries of the jurisdiction conferred upon a decision-maker by a process of construction of the statute conferring jurisdiction, and then assessing whether the particular acts of the decision-maker have taken him or her beyond jurisdiction.’

32    It follows that the starting point is to determine what the Tribunal was permitted or required to do in accordance with the applicable legislation. It is then necessary to consider what action or inaction of the Tribunal it is contended took the Tribunal outside its jurisdiction or comprised a failure to exercise jurisdiction when it was bound to do so.

The Tribunal’s ‘review’ function

33    As already noted, there are numerous authorities that have considered if a decision-maker has made a jurisdictional error in connection with a decision not to revoke a mandatory cancellation of a visa under s 501CA(4) of the Act. However, there are three categories of decision-makers who have jurisdiction to make a decision under s 501CA(4) and each category of decision-maker exercises different legislative power or jurisdiction.

34    First, the Minister may make a decision under s 501CA(4) of the Act. In such cases, s 499 and any direction under that section are not directly applicable. Further, the former visa-holder’s ‘case’ is likely to be confined to the representations made in response to an invitation under s 501CA(3). The former visa-holder has no right to apply to the Tribunal for a ‘review’ of such a decision. However, the Minister’s decision may be reviewed for jurisdictional error under s 75(v) of the Constitution.

35    Second, a delegate of the Minister may make a decision. In such cases, s 499 applies and the delegate is bound to apply any direction made under that section. Therefore, the delegate is subject to mandatory relevant considerations contained in any direction. Such considerations are not mandatory for the Minister. As for a decision of the Minister, the former visa-holder’s ‘case’ is likely to be confined to the representations made in response to an invitation under s 501CA(3). A delegate’s decision may be reviewed for jurisdictional error under s 75(v) of the Constitution and, also, may be made the subject of ‘review’ by the Tribunal under s 500(1)(ba) of the Act.

36    Third, the Tribunal may make a decision upon ‘review’ of a delegate’s decision. In such cases, s 499 applies and the Tribunal is bound to apply any direction made under that section in the same way that a delegate is bound. Therefore, the Tribunal is also subject to mandatory relevant considerations contained in any direction. While the Tribunal will have before it all of the relevant material that was available to the delegate, the Tribunal may have additional material provided during the exercise of its review function. Therefore, the former visa-holder’s ‘case’ before the Tribunal is not necessarily confined to the representations made in response to an invitation under s 501CA(3) or to the ‘case’ as presented to the delegate of the Minister.

37    Section 500(1)(ba) of the Act confers on a former visa-holder a right to apply for ‘review’ of a decision of a delegate refusing to revoke cancellation of a visa. That ‘review’ falls within the general division of the Tribunal. It is a substantive right to a ‘review’ and that is the function that the Tribunal is performing under the Act and the AAT Act. While the Tribunal may exercise all the powers and discretions conferred on the delegate (s 43 of the AAT Act), the Tribunal is not exercising the same power or function as the delegate. Thus, the nature of the Tribunal’s review is informed by the provisions of the AAT Act and s 500 of the Act: Hong v Minister for Immigration and Border Protection [2019] FCAFC 55; (2019) 269 FCR 47 at [62] – [69].

38    Where, as here, the delegate’s decision relates to a former visa-holder in a migration zone, then s 500 makes provision for the Tribunal to receive, in effect, all documentary information that was relevant to the making of the delegate’s decision: ss 500(6C), 500(6F) and 501G of the Act. That information includes not only the former visa holder’s representations, but all other relevant information in the possession or under the control of the delegate or Minister. Sections 500(6G) – 500(6L) of the Act contain other provisions governing the procedure of a hearing in the Tribunal under s 500(1)(ba). Otherwise, as the ‘review’ is in the general division of the Tribunal, it is subject to the general procedural and other provisions of any review within the Tribunal’s jurisdiction.

39    In carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review that is: accessible; and fair, just, economical and quick; and proportionate to the importance and complexity of the matter; and promotes public trust and confidence in the decision-making of the Tribunal: s 2A of the AAT Act. The procedure is within the discretion of the Tribunal, but is to be conducted with as little formality and technicality and with as much expedition as the requirements of the AAT Act and the Act and a proper consideration of the matters before the Tribunal permit. The Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate: s 33(1)(c) of the AAT Act.

40    In general, the Tribunal’s procedures require each party to file and serve a statement of facts, issues and contentions and the Tribunal will conduct an oral hearing: ss 34J and 35 of the AAT Act; General Practice Direction of the Tribunal, paras 4.28 and 4.31. The Tribunal is to ensure that every party to a proceeding before the Tribunal is given a reasonable opportunity to present his or her case and, in particular, to inspect any documents to which the Tribunal proposes to have in regard to reaching a decision in the proceeding and to make submissions in relation to those documents: s 39(1) of the AAT Act.

41    For the purposes of reviewing a decision, the Tribunal may take evidence on oath or affirmation. A presiding member may require a person to appear before the Tribunal for that purpose and may administer an oath or affirmation for that purpose: s 40 of the AAT Act. The President or an authorised member or officer of the Tribunal may summons a person to appear before the Tribunal to give evidence or produce any document or other thing specified in the summons: s 40A of the AAT Act.

42    Section 43(1) of the AAT Act provides that, for the purposes of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision and shall make a decision in writing: (a) affirming the decision under review; (b) varying the decision under review; or (c) setting aside the decision under review and making a decision in substitution for the decision set aside, or remitting the matter for reconsideration in accordance with any directions or recommendations of the Tribunal.

43    The Tribunal must give reasons for its decision. Where the Tribunal gives written reasons for its decision, those reasons must ‘include its findings on material question of fact and a reference to the evidence or other material on which those findings were based’: ss 43(2) and 43(2B) of the AAT Act.

44    It follows that upon a ‘review’ under s 500(1)(ba), the materials before the Tribunal include, but are not confined to, materials relevant to the delegate’s decision and the applicant’s ‘case’ is not confined to the ‘representations’ made to the delegate of the Minister in response to an invitation made under s 501CA(3). The applicant may expand his or her ‘case’ in the statement of facts, issues and contentions and through the provision of further information or evidence to the Tribunal.

45    It is well-established that the question for determination of the Tribunal is whether the decision under review (the decision of the delegate of the Minister) was the correct or preferable one on the material before the Tribunal: Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 at 419; Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286 at [98]. In its proceedings, the Tribunal is obliged to act judicially; that is, with judicial fairness and detachment. In its review, it is subject to the general constraints which applied to the administrative decision-maker: Drake at 419.

46    For the purpose of reviewing a decision, the Tribunal is entitled to be guided by the issues that the parties choose to put before it for its consideration: Grant v Repatriation Commission [1999] FCA 1629; (1999) 57 ALD 1 at [17] (and the cases there cited). However, the nature of the Tribunal’s review function is inquisitorial rather than adversarial. The manner in which parties conduct their ‘cases’ before the Tribunal does not have the same significance as the way in which parties conduct adversarial litigation before a court. The Tribunal is required to determine the substantive issues raised by the material and evidence before it and is not obliged to limit its determination to the ‘case’ articulated by an applicant if the evidence and material it accepts, or does not reject, raises a case on a basis not articulated by the applicant: Benjamin v Repatriation Commission [2001] FCA 1879; (2001) 70 ALD 622 at [47] (and the cases there cited).

The importance of an applicant’s ‘case’ in the Tribunal

47    In the context of a ‘review’ under s 500(1)(ba) of the Act, when identifying the ‘case’ before the Tribunal the ‘representations’ of the applicant (whether as originally made to the delegate of the Minister or as augmented in the Tribunal) remain central to ascertaining the nature of the ‘review’ the Tribunal is required to perform under the Act and the determination of whether there is ‘another reason’ why the cancellation should be revoked: Minister for Home Affairs v Omar [2019] FCAFC 188; (2019) 272 FCR 589 at [34(g)]; KXXH v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 111; (2022) 292 FCR 15 at [51] - [52].

48    In Plaintiff M1/2021 (at [22] - [27]) the majority of the High Court summarised the principles applicable to a decision-maker’s consideration of the ‘representations’ of a former visa-holder in a manner that emphasised the importance of an applicant’s ‘representations’ to the exercise of the discretion under s 501CA(4) of the Act as follows (most footnotes omitted):

22    Section 501CA(4) of the Migration Act confers a wide discretionary power on a decision-maker to revoke a decision to cancel a visa held by a non-citizen if satisfied that there is "another reason" why that decision should be revoked. The statutory scheme for determining whether the decision-maker is satisfied that there is "another reason" for revoking a cancellation decision commences with a former visa holder making representations. In determining whether they are satisfied that there is "another reason" for revoking a cancellation decision, the decision-maker undertakes the assessment by reference to the case made by the former visa holder by their representations.

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 [(1995) 57 FCR 451 at 495], 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.

25    It is also well-established that the requisite level of engagement by the decision-maker with the representations must occur within the bounds of rationality and reasonableness. 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. The requisite level of engagement - the degree of effort needed by the decision-maker - will vary, among other things, according to the length, clarity and degree of relevance of the representations. The decision-maker is not required to consider claims that are not clearly articulated or which do not clearly arise on the materials before them.

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 [(1986) 162 CLR 24 at 40; see also 30, 71], "[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.

    (citations omitted except where noted).

49    These principles are directed to the manner in which a delegate of the Minister must address a former visa-holder’s representations. However, the passage from Plaintiff M1/2021 quoted above is informed by well-established principles that concern jurisdictional error for failure to consider a matter, or adequately consider a matter, that are of broader application and apply equally to a ‘review’ of the Tribunal under s 500(1)(ba) of the Act: KXXH at [46].

50    While the High Court has said that it is improbable that Parliament intended that a decision-maker must treat every statement within representations made by a former visa-holder as a mandatory representation (i.e., the representations must be considered as a whole), when considering the former visa-holder’s ‘case’ (as a whole), the Tribunal is required to consider all ‘representations’ or ‘claims’ made by the former visa-holder and the essential components or integers of those representations or claims: Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 233 FCR 136 at [42]; AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89; (2018) 261 FCR 503 at [18]; Hong at [66].

51    Also, as to the established principle to which reference is made in [27] of Plaintiff M1/2021 as quoted above, a failure to respond to ‘a substantial, clearly articulated argument relying upon established facts’ can amount to a failure to accord procedural fairness and a constructive failure to exercise jurisdiction (i.e., a failure to perform the ‘review’ in accordance with the Act and AAT Act): Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088 at [24] – [32]. Further, the Tribunal is not to limit its determination to the ‘case’ articulated by an applicant if the evidence and material which it accepts, or does not reject raises a ‘case’ that is not articulated: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 at [58]; Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28 at 63; Sellamuthu v Minister for Immigration and Multicultural Affairs [1999] FCA 247; (1990) 90 FCR 287 at 293-294; Hong at [66] – [69]; AYY17 at [18].

52    In DWN027 v Republic of Nauru [2018] HCA 20; (2018) 92 ALJR 548 (at [17], [21]) the High Court emphasised that a decision-maker’s obligation to go beyond the case articulated by an applicant is confined to unarticulated claims which are apparent on the face of the material before the decision-maker. The Court noted that ‘the decision of the decision maker must be considered in light of the basis on which the application was put before the decision maker and not upon some entirely different basis that may only occur to the [applicant’s] lawyers at this later stage of the process’. The Court cited, with approval, (at [17]) the following observations of Kirby J in Dranichnikov (at [78]) (footnotes omitted):

[78]    The second relates to the function of the Tribunal and of the Federal Court. The Full Court correctly noted the degree of latitude that would be shown to a person such as the applicant representing himself without legal assistance. It recognised that he did not have to pick the correct Convention "label" to describe his plight. The Tribunal acts in a generally inquisitorial way. This does not mean that a party before it can simply present the facts and leave it to the Tribunal to search out, and find, any available basis which theoretically the Act provides for relief. This Court has rejected that approach to the Tribunal’s duties. The function of the Tribunal, as of the delegate, is to respond to the case that the applicant advances. A fortiori this is the function of the Federal Court in determining any application to it for judicial review of a decision of the Tribunal.

53    These observations have to be balanced with and placed into the context of the review of the Tribunal of a decision of a delegate not to revoke the mandatory cancellation of a visa. In such a review, amongst other things, the Minister is obliged to lodge with the Tribunal every document in the Minister’s possession that was ‘relevant to the making of the decision’: s 500(6F)(c). Therefore, the Tribunal is under an obligation to, at least, consider the documents lodged with it, in accordance with s 500(6F)(c) as relevant documents. An applicant may, or may not, be aware of such documents before commencing review proceedings in the Tribunal.

54    Additionally, when considering the extent to which a claim is ‘articulated’ or ‘unarticulated’ or if it ‘clearly emerges’ and, therefore, was considered by the Tribunal it is important to bear in mind that there is no ‘clear distinction’ between claims and evidence: Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 (at [111] - [114]). The absence of a clear distinction between ‘claims’ and ‘evidence’ means that an ‘unarticulated’ reason (or integer of a reason) for revoking a decision to cancel a visa may more readily been seen to emerge from information or evidence because that information or evidence may reveal an unarticulated aspect of the applicant’s ‘case’: SHKB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 545 at [24]. Put another way, materials, information or evidence may in and of themselves supply a reason for revoking cancellation of the visa without the need for an applicant to specifically identify that ‘reason’ or expressly place a ‘label’ on the information, materials or evidence as another reason for revoking the cancellation of the visa. However, the ‘fundamental question must be the importance of the material to the exercise of the Tribunal’s function and thus the seriousness of any error’: Viane v Minister for Immigration and Border Protection [2018] FCAFC 116; (2018) 263 FCR 531 at [28]-[30], quoting SZRKT at [111] (Robertson J).

55    As the Full Court observed in AXT19 v Minister for Home Affairs [2020] FCAFC 32:

56    Considerable caution needs to be exercised in resolving an argument that a claim has been made in sufficiently clear terms that it should in turn be considered by the Tribunal. The greater the degree of clarity in which a claim has been made and advanced for consideration, the greater may be the need for the Tribunal to consider the claim in clear terms. Conversely, the more obscure and less certain a claim is said to have been made, the less may be the need for the Tribunal to consider the claim. The need for caution arises lest a reviewing Court is propelled from its sole task of undertaking judicial review and into the murky waters of impermissible merits review. The task of a court undertaking judicial review is not to elevate a statement that may have been made in passing by a claimant into a clearly articulated claim in need of resolution. For a Court undertaking judicial review to engage in such a process has all the dangers of the Court resolving a different factual case to the one advanced to the Tribunal and thereby trespassing into merits – and not judicial – review.

The importance of s 499 Directions

56    In the context of a ‘review’ of a decision of a delegate of the Minister, directions made under s 499 of the Act are also central to ascertaining the nature of the review the Tribunal was required to perform. In this instance, the delegate of the Minister was required to apply Direction 90. The Tribunal was in no different position.

57    A failure to comply with the express requirements of Direction 90 as to the considerations to be brought to account and the manner in which those considerations were to be weighed in deciding whether to revoke a visa cancellation would constitute jurisdictional error on the part of the delegate: FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 19 at [6] (and the authorities there cited); Uelese v Minister for Immigration and Border Protection [2015] HCA 15; (2015) 256 CLR 203 at [61] - [68]. The requirements of Direction 90 fall within the description of mandatory relevant considerations of the kind referred to in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 39 – 40.

58    Paragraph 5.1 of Direction 90 describes the objectives of the Act. Paragraph 5.1(4) identifies the purpose of the Direction as to guide decision-makers in performing functions or exercising powers under ss 501 and 501CA of the Act. It records that under s 499(2A) of the Act, such decision-makers must comply with the direction.

59    Paragraph 5.2 of Direction 90 describes the principles that provide the framework within which decision-makers should approach the task of deciding whether, amongst other things, to revoke a mandatory cancellation of a visa under s 501CA. It directs attention to Part 2 of the Direction where the factors are identified that must, to the extent relevant, be considered in making a decision.

60    Part 2 of Direction 90 is concerned with the exercise of discretion. Section 6 provides that a decision-maker, informed by the principles in paragraph 5.2, must take into account the considerations identified in section 8 (primary considerations) and section 9 (other considerations) where relevant to the decision. Section 7 provides that: (1) in applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight; (2) primary considerations should generally be given greater weight than the other considerations; and (3) one or more primary considerations may outweigh other primary considerations.

61    Section 8 of Direction 90 provides that in making a decision under, amongst others, s 501CA, the following are primary considerations: (1) protection of the Australian community from criminal or other series conduct; (2) whether the conduct engaged in constituted family violence; (3) the best interests of minor children in Australia; and (4) expectations of the Australian community.

62    Paragraph 8.1 identifies the considerations to be taken into account with respect to the protection of the Australian community. Paragraph 8.1(1) places emphasis on protection of the Australian community from criminal activity and other serious conduct by non-citizens, and that entering and remaining in Australia is a privilege. Paragraph 8.2(2) then provides that decision-makers should also give consideration to: (a) the nature and seriousness of the non-citizen’s conduct to date; and (b) the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct. Paragraph 8.1.1 provides further explanation of what should be taken into account when considering the nature and seriousness of the conduct. Paragraph 8.1.2 provides further explanation of the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct. Paragraph 8.4 provides further explanation of the consideration of the expectations of the Australian community.

63    Section 9 of Direction 90 provides that in making a decision under, amongst others, s 501CA, other considerations must also be taken into account, where relevant, in accordance with the provisions contained in paragraphs 9.1 to 9.4 of the Direction. These considerations include (but are not limited to): international non-refoulement obligations; extent of impediments if removed; impact on victims; and links to the Australian community, including the strength, nature and duration of ties to Australia and impact on Australian business interests.

64    Paragraph 9.4 provides that, reflecting the principles at para 5.2, decision-makers must have regard to, amongst other things, para 9.4.1 which is in the following terms:

9.4.1    The strength, nature and duration of ties to Australia

(1)    Decision-makers must consider any impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.

(2)    Where consideration is being given to whether to cancel a non-citizen's 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; and

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

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

65    As to the manner in which a decision-maker is to evaluate and give weight to the primary and other considerations, in Suleiman v Minister for Immigration and Border Protection [2018] FCA 594; (2018) 74 AAR 545 (at [23], [28]) Colvin J observed with respect to Direction 65 (an earlier version of Direction 90 which was in this respect in similar terms) that it requires both primary and other considerations to be given ‘appropriate weight’. Other considerations are not ‘secondary’ to ‘primary considerations’. The weight to be attributed to primary considerations and other considerations is fact dependant and ‘it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded the greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply’.

66    While both s 500 of the Act and the AAT Act contemplate the participation of the applicant and the Minister in the Tribunal hearing and s 500(6H) of the Act contemplates expressly that the applicant will present a ‘case’ and implicitly that the Minister will also present a ‘case’, the High Court has ‘cautioned against transposing the language and mindset of adversarial litigation to inquisitorial decision-making of the kind authorised by s 500 of the Act’. Further, it ‘would be to give undue weight to conceptions drawn from adversarial litigation to accept that the Tribunal was not required to take into account’ a matter of which the Tribunal was aware and that the Tribunal was obliged to take into account by the terms of s 499 and Direction 90. Direction 90 imposes on decision-makers a requirement to consider the ‘primary considerations’ in terms which are not dependent on whether an applicant for review argues that those considerations are relevant as part of the applicant’s ‘case’ in the Tribunal: Uelese at [63] - [64].

67    Thus, if there is material before the Tribunal that raises a matter that Direction 90 requires a delegate to take into account, the Tribunal cannot ignore that material. The Tribunal is required to consider the material and the issue irrespective of whether or not the matter and material is the subject of an applicant’s ‘representations’ or ‘case’ before the Tribunal: Uelese at [61]-[68]. Provided that the material and matter is considered, the weight to be attributed to the material and subject matter is, of course, a matter for the Tribunal. However, the Tribunal would fail to perform the statutory task of ‘review’ of the delegate’s decision if the material and matter were not considered at all. That includes salient evidence or central matters that go to the risk to the Australian community and the likelihood of the applicant re-offending: see, e.g., DFW18 v Minister for Home Affairs [2019] FCA 599; (2019) 165 ALD 259 at [18] – [28]. The same can be said of evidence or matters that identify a ground or basis of a material or substantial tie to the Australian community.

68    It follows that the seriousness of the applicant’s criminal offences and risk to the Australian community should the applicant commit further offences or engage in other serious misconduct and, in particular, the culpability of the applicant for his crimes and likelihood of the applicant engaging in further criminal or other serious conduct were mandatory relevant considerations in accordance with s 499 of the Act and Direction 90. Likewise, the strength, nature and duration of his ties to the Australian community were mandatory relevant considerations to the extent that the evidence or other material before the Tribunal identified such ties. In that context, a failure to be aware of, or to consider evidence that is material to those considerations may involve jurisdictional error: Peko-Wallsend at 45-46, 61.

The importance of the Tribunal’s ‘consideration’ of the evidence

69    As noted earlier in these reasons, there can be a failure to consider a claim because the Tribunal has misapprehended the applicant’s claim or has ignored a claim that clearly emerges from the evidence and materials. However, there can also be a failure to consider a claim, properly understood and identified, if evidence of that claim is ignored or not considered in the sense of an active intellectual engagement with the evidence.

70    The ‘review’ function of the Tribunal requires an ‘active intellectual process’ in assessing the merits of the ‘case’ when making a decision that contemplates the exercise of power under s 501CA(4) of the Act: Plaintiff M1/2021 at [24]. That involves the Court making an evaluative judgment, taking into account the available evidence and reasonable inferences, as to all the relevant facts and circumstances of the case in question: Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352 at [35], [47]-[48]. See, also, Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; (2018) 267 FCR 628 at [3], [49]-[51].

71    There have been numerous authorities that have considered what is required for a decision-maker to discharge the statutory duty of reading, identifying, understanding and evaluating representations or claims. Having due regard to the admonition of the High Court in Plaintiff M1/2021 (at [26]), the following propositions may be distilled from the authorities.

(1)    A conclusion that the decision-maker ‘has not engaged in an active intellectual process will not be made lightly and must be supported by clear evidence, bearing in mind that the judicial review applicants carry the onus of proof’: Carrascalao at [48] (the caution with which the label ‘active intellectual process’ must be approached does not detract from the standard expressed there). The onus lies on the applicant to establish on the balance of probabilities that a relevant matter was not considered, taking into account that the reasons of the Tribunal must be read fairly and not in an unduly critical manner: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 272; and BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; (2019) 268 CLR 29 at [38], as summarised in Savaiinaea v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 56 at [73]; KXXH at [47].

(2)    Excluding obvious cases, determining whether the decision-maker has given active intellectual consideration to a representation will frequently be a matter of impression reached in light of all the circumstances of the case. The extent to which the reasons of the decision-maker fall ‘on the wrong side of the line’ will be a matter of inference drawn from the manner in which the representation was advanced and the structure, tone and content of the reasons considered as a whole: Navoto v Minister for Home Affairs [2019] FCAFC 135 at [89]. ‘What is required is the reality of consideration by the decision-maker. On judicial review the Court must therefore assess, in a qualitative way, whether the decision-maker has as a matter of substance had regard to the representations put’: Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216; (2018) 267 FCR 643 at [45]; KXXH at [48]-[49].

(3)    Each case necessarily turns on its own particular facts and circumstances as established by the evidence: Omar at [36(e)]. The reasons must be considered by reference to the facts of the case and must be construed in a practical and common sense manner: Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83; (2015) 231 FCR 513 at [47]; KXXH at [50].

(4)    Even where relevant material or evidence is not derived from an applicant’s representations, the representations remain relevant. ‘[R]epresentations play a central role in the relevant statutory regime. The Minister's statutory power to revoke (and therefore 'undo') the mandatory cancellation of a person's visa is only enlivened if revocation has been requested and representations are made in support of that request. The making of the representations is a condition on the exercise of the statutory power. Those representations play an important role in the Minister's determination of whether he or she is satisfied that there is 'another reason' why the cancellation should be revoked. As Colvin J said in Viane at [66], the Minister has a statutory duty to consider whether or not he or she has the requisite state of satisfaction to revoke the cancellation by reference to the material in the representations’: Omar at [34(g)]; KXXH at [51].

(5)    The degree of consideration necessary is affected by the centrality to the issues of the matter with which it is said the decision-maker did not engage, and the prominence the matter assumed: Singh v Minister for Home Affairs [2019] FCAFC 3; (2019) 267 FCR 200 at [37(1)]. It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593 at [46]; KXXH at [52].

(6)    It is not necessary in that regard to distinguish between claims and evidence. The fundamental question is the importance of the material to the exercise of the Tribunal's function and thus the seriousness of any error: SZRKT at [111]; KXXH at [53].

(7)    The fact that the Tribunal has not mentioned particular information does not necessarily mean that it has not considered that information. Section 43(2B) of the AAT Act, which requires the Tribunal to include in any written reasons its findings on material questions of fact, only requires the Tribunal to set out the findings of fact which in its opinion are material: Appellant V324 of 2004 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 259 at [8]. That entitles the Court to infer that any matter not mentioned in the Tribunal's reasons was considered by the Tribunal not to be material: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [69] (a case about s 430 of the Migration Act, but s 43(2B) of the AAT Act which applied here is not materially different). However, the Court need not make that inference. The manner in which a statement of reasons is drawn and its surrounding context may detract from or displace the inference; for example, because there is material that is so obviously relevant that it is unthinkable that the Tribunal would not have referred to it if it had actually been considered: SZTMD v Minister for Immigration and Border Protection [2015] FCA 150; (2015) 150 ALD 34 at [19]. On the other hand, while a failure to deal with an issue in the decision-maker's reasons may indicate a failure to consider the issue, that inference should not be drawn too readily where the reasons are otherwise comprehensive and the issue has at least been identified at some point: at [47]; KXXH at [54].

(8)    The failure to consider a document that is particular to an applicant and of material importance to the applicant’s claim may result in jurisdictional error. That is, a failure to perform a ‘review’ of the kind the Tribunal is required to undertake: VAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 117 at [77].

(9)    ‘Mere advertence to a matter required to be taken into consideration may not be sufficient to establish that it has been properly considered … [t]he serious consequences confronted by an individual who has had a visa cancelled pursuant to s 501 may well require, in an appropriate case, such a conclusion being reached. Even a ritualistic incantation of a risk being, for example, an “unacceptable risk” or a “grave and serious risk”, may not be sufficient to clothe a statement of reasons with impunity.’: Ayoub at [46].

(10)    ‘[T]here is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact … and a failure by the Tribunal to address a contention which, if accepted, might establish that [there was a reason for considering that there was little risk to the Australian community]’: Applicant WAEE at [46].

(11)    Although overlooking particular evidence may be central in some circumstances, the distinction between overlooking a claim and overlooking evidence remains a useful tool in determining whether a decision-maker has made a jurisdictional error and if ultimately what is required is a balancing of the importance of the overlooked information and the gravity of the error: BNB17 v Minister for Immigration and Border Protection [2020] FCA 304 at [108]; Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16; (2014) 309 ALR 67 at [49], [54].

(12)    ‘A decision-maker who is bound to have regard to a particular matter is not bound to bring to mind all the minutiae within his knowledge relating to the matter. The facts to be brought to mind are the salient facts which give shape and substance to the matter: the facts of such importance that, if they are not considered, it could not be said that the matter has been properly considered.’: Peko-Wallsend Ltd at 61.

(13)    The Tribunal makes no jurisdictional error if it merely misunderstands the evidence or makes an incorrect finding of fact. However, if the Tribunal fails to understand the claim and address the evidence with respect to that claim, it may make a jurisdictional error: Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51; (2010) 115 ALD 303 at [28].

72    It follows that the Tribunal may make a jurisdictional error if it correctly understands the applicant’s case, but fails to consider or evaluate material evidence directed to that case. In such circumstances there may be a failure to conduct the ‘review’ of the decision that is required under the Act because the Tribunal has not engaged with the submission or ‘case’ of the applicant: BIL17 v Minister for Immigration and Border Protection [2019] FCAFC 6; (2019) 268 FCR 114 at [54] – [64]. However, ‘an error of fact based on a misunderstanding of evidence or even overlooking an item of evidence in considering an applicant’s claims is not jurisdictional error, so long as the error, whichever it be, does not mean that the [Tribunal] has not considered the applicant’s claim’: SZNPG at [28].

Representations and materials before the Tribunal

Reasons for revocation

73    In a form entitled ‘Personal Circumstances Form’ the applicant submitted that he had an ‘exceptionally strong bond with his son’ and that the likely impact that his potential removal would have on his son would be ‘irreversible’. The applicant further stated that his siblings would be ‘devastated’ and ‘very concerned for [his] welfare and mental health going to a new country not knowing anyone or anything…’. In response to a question orientated towards factors impacting his offending, the applicant responded that:

A majority of my offending in the last 10 years [has] been [committed] whilst being [an] alcoholic and under the influence…Whilst being [sentenced] the Magistrate took into account my alcoholism. And I received a Treatment Order. I have been sober now for 220 days I am trying to abstain from alcohol and will go to a sober living unit provided by the salvation army if I receive a favourable decision.

74    In the section headed ‘12 IMPEDIMENTS TO RETURN – HEALTH INFORMATION’ the applicant made the following statements:

I have been diagnosed with a bi-polar disorder in my late teens. I currently am prescribed [Quetiapine]-300mg-nightly which is [an] anti-psychotic. I currently am continuing to have one on one counselling which addresses behavioural choices and the impact this has on my offending.

….

75    The applicant provided the following materials to the Tribunal:

(a)    submissions on the impact deportation would have on his son;

(b)    letters in support from his father and nephew;

(c)    documents drafted by the applicant respectively titled ‘MEDICATION CHART’ and ‘DRUG AND ALCOHOL COUNSELLING APPOINTMENTS AND DOCUMENTS’;

(d)    a medical chart from International Health and Medical Services (an organisation that provides health and medical services to persons in immigration detention);

(e)    various self-help documents from the Government of Western Australia Drug and Alcohol office;

(f)    an email from Universal Class Portfolio Service to the applicant’s former pro-bono counsel dated 1 May 2021 indicating that the applicant had completed a drug and alcohol online education course; and

(g)    an email from Alison Devries to the applicant’s former pro-bono counsel dated 22 April 2022 confirming there was a position of employment available for the applicant at her business.

76    The Minister provided to the Tribunal a statement of facts, issues and contentions dated 30 April 2021. The applicant did not file a statement of facts, issues and contentions.

Evidence of mental illness and bi-polar diagnosis

77    A copy of the applicant’s Legal Health Record for the period between 7 April 2015 to 15 May 2019, which was produced by the Department of Justice and Community Safety under summons, was before the Tribunal. The Health Record contains numerous references to the applicant reporting that he had been diagnosed with bi-polar disorder. There are also references to depression and schizophrenia. For example, an observation of a Fulham Correctional Centre staff member on 26 September 2018 records that:

Discussion held with Stephen during reception regarding current mental health / mood, has reported a diagnosis of Depression, currently prescribed Quetiapine. Stephen declined offer of an appointment for further review of his mental health. CMI history noted with diagnosis of Anxiety, Bipolar, Affective Disorder, Depression, Drug and Alcohol, Psychotic Disorder, Schizophrenia Unspecified and Unspecified Nonorganic Psychosis.

78    The Health Record also contains frequent references to prescription for Quetiapine that is used to treat bi-polar disorder. There are also numerous references to bi-polar and medication to treat that disorder in certified extracts of court proceedings of the Dandenong Magistrates’ Court. For example, a certified extract of a Court Order dated 30 May 2013 states that the applicant had been 'diagnosed with bi-polar'.

79    These documents suggest that members of the Victorian public service had accepted that the applicant had been diagnosed with bi-polar disorder and that he was taking medication to treat that illness. In terms of Direction 90, documents of the Department of Justice and Community Safety and Magistrates’ Court may be described as ‘independent and authoritative sources’ for the purposes of Section 7(1) of Direction 90 and, therefore, the Tribunal was bound by Direction 90 to give such documents ‘appropriate weight’.

Evidence of indigenous heritage and identification as Aboriginal person

80    In the applicant’s Personal Circumstances Form in the box alongside ‘Country of Citizenship’ the answer ‘WALES/DUAL CITIZEN?’ has been written in hand writing. In the reasons the applicant gave in support of the revocation of the original decision to cancel his visa, there is a strong emphasis on the duration of his time in Australia, his family and other connections with Australia and the lack of any connection to Wales. There is no reference to indigenous heritage or identification as Aboriginal person. Indeed, under Citizenship Details ‘No’ is circled in hand writing in response to the question ‘Do you identify as Aboriginal or Torres Strait Islander? Similarly, in the applicant’s application in the Tribunal for review of a decision ‘No’ is written in a box under the question: ‘Are you of Aboriginal or Torres Strait Islander origin?’ Nonetheless, within the materials before the Tribunal there were numerous documents that provided evidence that the applicant was of indigenous heritage and had, at least at times, identified as an Aboriginal person or it had been assumed that he identified as an Aboriginal person by members of the Victorian public service.

81    A prisoner education summary report indicated that the applicant had completed a Certificate II in Aboriginal or Torres Strait Islander Cultural Arts. The Health Record contains many references to indigenous heritage. Not all these references are clear or unambiguous indications that the applicant routinely identified as an Aboriginal person. However, there are many references to the applicant having an ‘ATSI and mental health care plan in place’. I take the reference to ‘ATSI’ to be an acronym for ‘Aboriginal and Torres Strait Islander’.

82    An inter-prison transfer assessment of 10 April 2015 records: ‘Presentation of prisoner << Koori’. A doctor admission review of 5 May 2015 records in reference to the applicant: ‘ATSI: Yes’. A doctor admission review of 18 June 2015 records in reference to the applicant: ‘ATSI: Aboriginal’. A review on 19 September 2018 records in reference to the applicant: ‘Patient needs: Conducting Aboriginal and/or Torres Strait Islander health checks is a useful first step to make sure Aboriginal and/or Torres Strait Islander Australians get the best level of health care.’ Conversely, a document entitled ‘Location Plan File Notes – Location Prisoner Details’ in reference to the applicant it is said: ‘Stephen is not a State Trustees client nor does he identify as Aboriginal or Torres Strait Islander.’

83    Otherwise, there are numerous certified extracts of proceedings of the Dandenong Magistrates’ Court that record that the applicant is an Aboriginal person. A certified extract of 29 April 2015 records:

Custody Management Issues:

The accused is an aboriginal person.

Recommend all reasonable assessment and supervision to ensure safe custody.

Refer particularly to recommendations 122 to 187 (“Custodial Health and Safety” and “The Prison Experience”) and recommendations 234 to 245 (“Breaking the Cycle: Aboriginal Youth”) of The Royal Commission into Aboriginal Deaths in Custody.

84    There are similar records in certified extracts of that Court of 30 May 2013, 24 July 2013, 29 August 2013 and 3 October 2013. These extracts also contain statements to the effect that: ‘The accused is an aboriginal person’.

85    As noted earlier in these reasons, the Health Record and Magistrates’ Court certified extracts also contain references to the applicant having been diagnosed with bi-polar disorder and prescribed medications. These are contained in the same records that refer to the applicant as 'Aboriginal' or 'Koori' or 'ATSI'. A person who had read, understood and evaluated these documents could not have failed to have noticed the repeated references to bi-polar disorder and medication, to the applicant identifying as an Aboriginal person, to the existence of an ‘ATSI plan’ and the need to apply the recommendations of The Royal Commission into Aboriginal Deaths in Custody to the applicant.

The Tribunal’s reasons for decision

86    The Tribunal’s reasons begin with an overview of the application, background of the applicant’s circumstances and offending, legislative framework and the issues requiring resolution: RFD [1] – [30]. The Tribunal the proceeded to identify and summarise the evidence before it: RFD [31] – [66].

87    After the evidence, the Tribunal addressed the primary considerations under Direction 90: RFD [67] - [130]. The Tribunal considered: the protection of the Australian community from criminal or other serious conduct ([67] - [68]); the nature and seriousness of the conduct ([69] – [77]); the risk to the Australian community in the event that the applicant re-offends ([78] – [102]); family violence committed by the applicant ([103] – [112]); the best interests of minor children in Australia affected by the revocation decision ([113] – [120]); and the expectations of the Australian community ( [121] – [130]). The Tribunal then addressed other considerations such as non-refoulement obligations, the extent of impediments upon the applicant if removed, the applicant’s links to the Australian community and the strength, nature and duration of such ties: RFD [131] – [154]. The Tribunal then set out its conclusions and the weight attached to the various considerations before concluding that there was not another reason for revoking the cancellation of the applicant’s visa: RFD [155] – [160]. The Tribunal concluded with its decision to affirm the delegate’s decision under review: RFD [161].

88    It is apparent from the substantial section dedicated to the question of whether the applicant was a risk to the Australian community (at [78] – [102]) that the Tribunal placed significant weight on the applicant’s past conduct as a persuasive factor ultimately resulting in the conclusion that ‘there is a real and unacceptably high likelihood the Applicant will relapse into his addictions and reoffend if released. This primary consideration weighs very heavily against revocation’: at [102]. In reaching the conclusion that it was more likely than not that the applicant would re-offend, the Tribunal referred to a recidivism risk conducted utilising the Level of Service, Risk, Need and Responsivity (LS/RNR) methodology while the applicant was incarcerated. The applicant was found to have a high risk of re-offending (at [87]).

89    The Tribunal also drew upon the comments of Magistrate Bryant on 23 August 2018 where the applicant’s drug treatment order was cancelled and he was re-sentenced on the original charges leading to the revocation of his visa:

…at no stage during the time that he was on this particular Drug Treatment Order, [did the applicant demonstrate] either a capacity or a willingness to engage with the Drug Treatment Order.

In fact, to the contrary, in many respects. He was, and this may well be rooted in his mental health issues, but he was on occasions rude, impolite, aggressive, belligerent, and had put not only drug court staff but way staff in fear, because of the way in which he was conducting himself, and you only have to look at the test results that Mr Brownlie provided on the occasions that he did test to draw the conclusion that there was little or no control over his drug use and his consumption of alcohol on the Drug Treatment Order.

Which of course leads to the inevitable conclusion that Mr Brownlie is not so much motivated by a genuine desire to rehabilitate but rather a desire to return to the community…

As I said to you, and remarked before, we're often dealing with two Stephen Brownlies. There's an insightful, intelligent, engaged Stephen Brownlie when you are sober and when you are absent from drugs, and when you are medicated, and then there is a very different Stephen Brownlie that we have to deal with when you are affected by drugs and alcohol. And it's that second Stephen Brownlie that concerns me, because I think when you are not on your medication, when you are alcohol affected, when you are drug affected, you're a significant risk not only to yourself, but also to the community.

90    The Tribunal also noted that some of the applicant’s problematic behaviour, identified in the passage above by the Magistrates’ Court, had remained largely unchecked in prison as the applicant had been reprimanded for numerous physical altercations with other inmates and had been found with suspicious substances on his person.

91    The extent to which the applicant’s mental health was a contributing factor of his criminal conduct was not considered in the Tribunal’s evaluation of the nature and seriousness of his conduct. However, the evidence about his mental health was considered and evaluated in the context of addressing the impediments to the applicant if removed from Australia. In that regard, the Tribunal summarised the evidence and its conclusions as follows:

56.    When asked about being able to provide for himself if released, the Applicant said there were no medical conditions stopping him from working. He claimed to have been previously diagnosed with bipolar disorder, for which he receives medication. There is no expert corroboration of this diagnosis, however, besides his daily Methadone dose, the current evidence shows he take two other medications for ‘symptoms of depression’.

…

133.    The Applicant is 39 years of age. He claims to have been diagnosed with Bipolar Disorder in his ‘late teens’, is currently prescribed a daily anti-psychotic, and undergoes counselling to address his anxiety and ‘behavioural choices’. He has been on the Methadone Program for approximately 20 years. The Applicant said he was 'deemed eligible' for DSP in 2013, although there is no reliable evidence to corroborate what this was granted for.

134.    The Tribunal has considered medical records in evidence, including from his most recent periods in custody, which refer to the Applicant having anxiety with depression, a history of Hepatitis C that he claimed had cleared, and ‘Hepatitis B status Hep B core AB [positive]’ in December 2018. It remains unclear to the Tribunal the extent to which this represents confirmed diagnoses, or records the Applicant’s self-reported claims about his health.

135.    When asked about current medical conditions at the hearing, the Applicant said he received a daily Methadone dose and suffered psychological conditions for which he received medication. He stated there was nothing from a health perspective that would stop him from working if released.

92    In assessing the applicant’s links to the Australian community and the strength, nature and duration of ties to Australia ([141] – [152]), the Tribunal focused on the applicant’s familial connections in Australia and the impact his removal would have on them. The Tribunal made no reference to the evidence in the materials concerning the applicant’s indigenous heritage and identification, at least at times, as an Aboriginal person. There was no consideration given to the strength, nature or duration of the applicant’s links with the Aboriginal community as part of the Australian community. There was no reference, at all, to the documents identifying the applicant as an Aboriginal person or to any conflicting evidence related to that issue.

Consideration

93    The applicant submitted that the references of the Tribunal to the applicant’s claim to have been diagnosed with bi-polar disorder, absence of expert corroboration of that diagnosis and absence of evidence to corroborate the basis upon which the applicant was eligible for a disability support pension (RFD [56], [133]) reveal that the Tribunal had not evaluated the material in the Health Record, extracts of the Magistrates’ Court proceedings and other materials before the Tribunal concerning the nature and extent of the applicant’s mental health. In particular, the applicant’s diagnosis of bi-polar disorder and schizophrenia were not considered and the evidence concerning that topic was not addressed in the section of the Tribunal’s reasons in which it dealt with the nature and seriousness of the applicant’s offending and his moral culpability for it.

94    I accept that the Tribunal’s reasons do not reveal a detailed or extensive consideration of the applicant’s mental health. However, the absence of that consideration must be viewed in light of the applicant’s representations.

95    No representation was made to the Tribunal to the effect that the applicant’s mental illness was an explanation for the nature or seriousness of his offending. Nor was the evidence of such a nature that it should have been obvious to the Tribunal that the applicant’s mental illness was a consideration that ought to have been taken into account when considering his culpability or the risk of his re-offending if his illness were properly treated. There was no evidence that his mental illness had contributed to his offending or that, if medicated, the risk of reoffending would be mitigated. To an extent the Tribunal might have been in a position to draw on common experience to infer a connection between the applicant’s mental health and his offending, but, without more, it is mere speculation to suggest there was a sufficient connection to make concrete findings about diminished criminal responsibility or the potential for rehabilitation and a lower risk of reoffending.

96    However, as noted earlier in these reasons, a person who had read, understood and evaluated the Health Records and Magistrates’ Court certified extracts could not have failed to have noticed the repeated references to the applicant identifying as an Aboriginal person, to the existence of an ‘ATSI plan’ and the need to apply the recommendations of The Royal Commission into Aboriginal Deaths in Custody to the applicant. Accepting that the applicant had not identified as an Aboriginal person in either his representations to the delegate or his application to the Tribunal, and that there were other documents in the materials before the Tribunal that were also consistent with the applicant not identifying as an Aboriginal person, it is nonetheless difficult to believe that if the Tribunal had read and understood the documents that were in the materials before the Tribunal there would not have been at least some mention of the conflict between the asserted non-identification as Aboriginal and the numerous references to the applicant as an Aboriginal person in the evidence. Alternatively, that the Tribunal member would not have sought clarification directly from the applicant as to whether he identified as an Aboriginal person and recorded the clarification and outcome in the reasons.

97    In Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 259 ALR 429 at [25] the High Court observed that ‘[t]he duty imposed upon the tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction.’ While the applicant has not framed ground 2 as a failure to make an obvious inquiry about a critical fact, the absence of any record of inquiry in the Tribunal’s reasons in circumstances which called for clarification is a firm indication that the Tribunal did not consider the evidence to the effect that the applicant identified, at least at times, as an Aboriginal person. Put another way, the number and frequency of references to the applicant as an Aboriginal person could not have been ignored if the Tribunal had read and understood the evidence that was before it on review.

98    As the applicant had identified, at least at times, as an Aboriginal person that was manifestly relevant to the ‘other consideration’ in para 9.4.1 of Direction 90 and, in particular, to the ‘strength’ and ‘nature’ of the ‘ties’ that the applicant has to the Australian community. Further, the Tribunal was obliged to have regard to ‘the strength, duration and nature of … social links with Australian citizens, Australian permanent residents and/or other people who have an indefinite right to remain in Australia’. More specifically, that part of the Australian community which identifies as Aboriginal or Torres Strait Islander.

99    There was no evidence before the Tribunal of any specific connection of the applicant to an identified indigenous community. However, as Allsop CJ observed in Hands:

50    … nearly 30 years after the Royal Commission into Aboriginal Deaths in Custody, two decades after the Stolen Generations Report (“Bringing them home: Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families”), and after nearly forty years of recognition of land rights based on Aboriginal community of title (see Aboriginal Land Rights (Northern Territory) Act 1976 (Cth)), it is surely now part of Australian society’s cultural awareness and appreciation that kinship, family and community lie at the heart of Aboriginal society, underpinning its laws, rules, and social behaviour.

100    The Minister submitted that the nature of the evidence and information concerning the applicant’s Aboriginality was similar to that which Anderson J considered in McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2020] FCA 843; (2020) 170 ALD 538. In that case Anderson J (at [212]) could not ‘identify or infer from the relevant correspondence, materials and submissions any sufficiently clear claim by the applicant that his visa cancellation should be revoked on the basis of his ties with Aboriginal communities’ (original emphasis). The applicant in that case was not of Aboriginal descent, but had children of Aboriginal descent. In any event, Anderson J was not satisfied that there had been any jurisdictional error for not considering the claimed tie to the Aboriginal community in that case.

101    The Minister contrasted the circumstances of McHugh with those present in Hands and in Montgomery v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1423. However, in each of those cases the applicant in question had articulated membership of and a connection to an Aboriginal community as a reason for revocation of the cancellation of the visa. These were not examples of cases where that connection was unarticulated but manifest from the materials before the Tribunal.

102    Whatever may have been the information under consideration in McHugh, in this case, despite some conflicting indications in the materials, the repeated references to the applicant as an Aboriginal person is readily apparent even on a superficial reading of the materials. Although the strength and nature of the applicant’s connection with the Australian Aboriginal community is not expressly identified in that material, that such a connection exists is implicit from the repeated identification of the applicant as an Aboriginal person, the recognised need to deal with him in accordance with the recommendations of The Royal Commission into Aboriginal Deaths in Custody, and that he had undertaken Aboriginal cultural activities while in prison. These matters taken together obliged the Tribunal to consider the strength, duration and nature of the applicant’s social links with the Australian Aboriginal community. Limited though the evidence of that connection may have been, it was a mandatory relevant consideration that arose from the evidence before the Tribunal and it was not considered at all in the Tribunal’s reasons. I also infer that had it been considered it was a matter of sufficient materiality that it would have been included in the reasons. Therefore, I am satisfied that it was not considered by the Tribunal and that failure constituted a failure to perform the review mandated by s 500(1)(ba) of the Act and ss 25 and 43 of the AAT Act.

Conclusion

103    The Tribunal’s decision to affirm the delegate’s decision not to revoke the cancellation of the applicant’s visa should be set aside for jurisdictional error. A writ in the nature of certiorari quashing the Tribunal’s decision will be issued. A writ in the nature of mandamus requiring the Tribunal to perform the review according to law will be made. I will hear the parties on the question of costs.

Associate:

Dated:    10 May 2023