Federal Court of Australia

Buntin v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1055

ORDERS

THE COURT ORDERS THAT:

1.    The name of the respondent be changed to “Minister for Immigration, Citizenship and Multicultural Affairs”.

2.    A writ of certiorari be issued quashing the decision of the second respondent dated 16 August 2022.

3.    A writ of mandamus directed to the second respondent be issued requiring it to determine the application for review of the decision of a delegate of the first respondent according to law.

4.    The first respondent is to pay the applicant’s costs as agreed or assessed.

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

REASONS FOR JUDGMENT

MEAGHER J

introduction

1    The applicant is a 33 year old citizen of the United Kingdom of Great Britain and Northern Ireland (UK). He arrived in Australia on 1 July 2008 as an 18 year old and has lived here ever since, with the exception of two short absences. He held a Class BS Subclass 801 Partner (Permanent) visa which, on 20 August 2021, was subject to mandatory cancellation by a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs pursuant to s 501(3A) of the Migration Act 1958 (Cth) for failing to pass the character test.

2    Notice of the cancellation was provided to the applicant on 20 August 2021, and the applicant sought revocation of the cancellation decision pursuant to s 501CA(4) of the Act. On 30 May 2022, a delegate of the Minister decided not to revoke the cancellation decision. On 16 August 2022 the Administrative Appeals Tribunal affirmed that decision.

3    On 31 October 2022, by way of amended originating application, the applicant sought judicial review of the Tribunal’s decision on a number of grounds. The grounds included that the Tribunal failed to understand and evaluate certain representations, denied the applicant procedural fairness, misinterpreted or misapplied paragraph 8.1.1(1)(b)(ii) of Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction 90 or the Direction) and had regard to an irrelevant consideration or irrelevant considerations.

key legislative provisions

4    Section 501(3A) of the Act provides that the Minister must cancel a visa if the Minister is satisfied that a person does not pass the character test by reason of having a substantial criminal record and is serving a full time custodial sentence. Section 501(7)(c) of the Act provides that a person has a substantial criminal record if they have been sentenced to a term of imprisonment for 12 months or more.

5    Pursuant to s 501CA(4) of the Act, the Minister may revoke a decision to cancel a visa under s 501(3A) if the person makes representations which satisfy the Minister that either the person passes the character test, or that there is another reason why the original decision should be revoked.

6    A person or body exercising powers under the Act is required to comply with any directions made by the Minister under s 499(1) of the Act. In the present case Direction 90, issued on 20 August 2021, is the relevant direction. Paragraph 5 is described as the preamble to the Direction and paragraph 5.1(4) states that the purpose of the Direction is to guide decision makers in performing functions or exercising powers under s 501 and 501CA of the Act. Paragraph 5.2 of the Direction sets out principles which provide the framework within which decision makers should approach their task of deciding whether to refuse or cancel a non-citizen's visa under s 501 or revoke a mandatory cancellation under s 501CA.

7    Paragraph 8 of Direction 90 sets out the Primary Considerations:

(1)    Protection of the Australian community from criminal or other serious conduct (Primary Consideration 1);

(2)    Whether the conduct engaged in constituted family violence (Primary Consideration 2);

(3)    The best interests of minor children in Australia (Primary Consideration 3); and

(4)    Expectations of the Australian community (Primary Consideration 4).

8    Paragraph 9 of the Direction 90 sets out four Other Considerations to be taken into account:

(1)    International non-refoulement obligations (Other Consideration 1);

(2)    Extent of impediments if removed (Other Consideration 2);

(3)    Impact on victims (Other Consideration 3); and

(4)    Links to the Australian community (Other Consideration 4), including:

(a)    strength, nature and duration of ties to Australia; and

(b)    impact on Australian business interests.

BACKGROUND

9    The applicant has lived in Australia for 15 years. He has four minor children all of whom were born in Australia, and at the time of the Tribunal’s decision ranged in age from three to nine years old. The children live with the applicant’s former wife, from whom he separated in February 2019.

10    The applicant was diagnosed with Multiple Sclerosis (MS) in 2017.

11    Up until 2019 the applicant had what was described by Chowdhury DCJ in sentencing remarks as a “relatively minor criminal history”. Thereafter, the applicant’s criminal conduct increased dramatically and, on 16 August 2021, he was sentenced in respect of strangulation in a domestic setting with the circumstance of aggravation (contravening a court order) and stalking. At the same time the applicant was sentenced for three counts of breach of bail, one of possession of a dangerous drug, one of possession of drug utensils, one of unlawful possession of a knife, 16 contraventions of a domestic violence order and a further four offences of contravention of a domestic violence order.

12    The circumstances of the strangulation and stalking bear further description. On 13 August 2019, while subject to a protection order with respect to his former wife, the applicant, while attempting to enter her home, squeezed her hand, pushed her against the front door and grabbed her around the throat tightening his grip for about 30 seconds so that his former wife could not breath.

13    The stalking offence occurred while the applicant was on bail and also while subject to a protection order in respect of his former wife and children.

14    The applicant was sentenced to two years’ imprisonment for strangulation in a domestic setting and two years’ imprisonment for unlawful stalking. The applicant was also convicted of each of the summary offences but was not further sentenced. The sentencing Judge extended the protection order that was in place at that time with respect to the applicant’s former wife and children up to and including 5 August 2026.

15    The applicant breached the protection order by attempting to contact his former wife and children by mail and telephone while in jail. He arranged for other inmates of the jail to send letters to his former wife and children in an attempt to circumvent the terms of the protection order.

16    On 9 November 2021 the applicant was transferred to immigration detention.

tribunal’s decision

17    The hearing before the Tribunal took place by Microsoft Teams on 8 and 12 August 2022. The applicant was self-represented and the Minister was represented by Mr Burgess of Sparke Helmore Lawyers.

18    The Tribunal delivered lengthy and detailed reasons.

19    It correctly identified that there were two issues before it, namely:

(a)    Whether the applicant passes the character test; and

(b)    Whether there is another reason why the decision should be revoked.

20    The applicant conceded that he did not pass the character test in s 501 of the Act due to his criminal record, therefore the question for the Tribunal was whether there was another reason why the decision should be revoked.

21    Regarding Primary Consideration 1, the Tribunal considered that the applicant's convictions for choking and stalking were "extremely serious", adopting and giving "great weight" (at [183]) to the sentencing remarks of the District Court which were set out in full (at [131]). The Tribunal also considered that the applicant engaged in a range of "other serious conduct" including lying to the Tribunal and lying on his personal circumstances form (at [169], [184], [202] - [204]). The Tribunal regarded the applicant to have "recorded crimes against government officials in the form of obstruct a police officer" (emphasis in original) in the application of factors in paragraph 8.1.1(i) of the Direction (at [191]). .

22    The Tribunal noted that the applicant’s offending comprised of drug offences, assaulting or obstructing a police officer, driving offences and breaches of a protection order including whilst in prison and immigration detention and while on bail (at [175], [180], [186]). The Tribunal considered that the applicant’s offending “demonstrates a very clear trend of increasing seriousness” (at [197]).

23    At [200] the Tribunal stated:

The cumulative effect of the Applicant’s offending is that, over a period of about one year, he repeatedly demonstrated a blasé and cavalier contempt for court orders, for Australia’s laws and law enforcement framework. He continued to offend after he was incarcerated, and in the face of court orders. His repeated offending added greatly in terms of time and expense to the burden on law enforcement officers and the justice system.

24    As to the risk of harm to individuals of the Australian community were the applicant to engage in further criminal or other serious conduct, the Tribunal considered at [212] that:

The risk presented to the Australian community were the applicant to engage in further similar criminal or other conduct is grave. The very frequency of this applicant’s offending presents a significant concern that its repetition would result in all the harm that would flow from a continuing demonstration of recklessness and indifference to court orders, laws, and rules intended to make Australia a safe society.

25    It further considered at [215]:

The applicant’s history suggests that if he does re-offend in future, any re-offending is unlikely to be an isolated episode, and he is unlikely to be compliant with the current DVO any future bail conditions or court orders. There could be increased costs of law enforcement and an added burden to legal administration which the taxpayer would have to fund.

26    The Tribunal acknowledged that there were a range of physical and mental health issues, as well as other factors, that provided context to the applicant's offending. Prior to being diagnosed with MS the applicant had an excellent work history. In considering the likelihood of the applicant engaging in further criminal conduct, the Tribunal accepted that the applicant was passionate about his role as a father and that he intended to take steps to achieve a co-parenting role with his former wife notwithstanding that the terms of the current protection order prohibit him, until 5 August 2026, from having any contact with his children without his former wife's consent (at [217]). However it considered that such an aspiration might be fraught with obstacles and be lengthy and frustrating, which may be "more difficult than the applicant presently anticipates” and ultimately lead to disappointment (at [225], [226], [233]).

27    The Tribunal accepted that the applicant had made efforts towards rehabilitation, although the efforts had not been wholly successful, and that he had breached the protection order against him despite receiving a warning not to do so from Chowdhury DCJ (at [222]). The Tribunal was not satisfied that the applicant had achieved any substantive rehabilitation, and considered that “[t]here is strong reason to believe that he is incorrigible” (at [223]).

28    The Tribunal determined that the risk of further harm caused by similar offending in the future outweighed any countervailing considerations, and concluded that Primary Consideration 1 weighed very heavily against revocation of the applicant's visa (at [234]-[235]).

29    With respect to Primary Consideration 2, the Tribunal considered that the applicant's former wife, in respect of whom the protection order was made, would have experienced significant fear as a result of the offending (at [239]). The Tribunal found that the acts of family violence were "particularly frequent" and that the applicant's former wife "would have felt she was in a constant state of harassment during the period of offending" which would have had a "flow on effect upon the children" (at [240], [242]). The Tribunal acknowledged that the applicant had expressed remorse at the hearing but as it was not more generally satisfied as to the applicant's credibility, it did not consider that he understood the impact of his behaviour on his former wife and children, nor did the Tribunal consider the applicant had satisfactorily addressed the impact of his behaviour (at [243]).

30    The Tribunal concluded that it “is gravely concerned that if the applicant is returned to the community his period of confinement will merely represent a hiatus in his offending” (at [245]) and concluded that Primary Consideration 2 weighed very heavily against revocation (at [246])

31    As to Primary Consideration 3, the best interests of minor children in Australia, the Tribunal identified the applicant's four children with his former wife , as well as his nephew and niece, as relevant to the consideration (at [250], [261]).

32    The Tribunal observed that there is a protection order in place which prevents contact with his children until 5 August 2026, at which time his children will be aged between seven and 14 years old (at [258]). In the context of Primary Consideration 1, the Tribunal noted that the applicant aspires to have access to his children and intends to seek that by way of mediation with his former wife, and if that is not successful, through the Family Court (at [225]). The Tribunal was not convinced that such a process would be successful for the applicant, and considered that the stress of it may result in the applicant reverting to using illicit substances (at [254]).

33    If the applicant was successful in obtaining access to his children, the Tribunal was concerned that contact between the applicant and his former wife could "quickly flare into a dangerous scenario with grave consequences to which the children may well be witnesses" (at [255]).

34    The Tribunal made a number of observations regarding the best interests of the applicant’s minor children from paragraphs [256]-[260]:

Moreover, emotional strain or life’s adversities including the deterioration of his own health, may lead the applicant back to illicit substances, and were this to happen, it may expose the children to further extremely serious episodes of family violence addressed towards their mother, and this may well adversely impact the children.

There is no expert evidence before the Tribunal of the impact of the applicant’s past conduct on his children. There is certainly no evidence that any of the applicant’s family violence conduct has been specifically addressed towards the children. However, given the history between their parents, it would be surprising if the applicant’s violence towards their mother and repeated breaches of the DVO, and subsequent separation had not already had some negative impact on them, and possibly caused enduring emotional trauma.

The role of the applicant in the children’s lives has been significantly diminished over the past three years, and it appears likely to remain so until at least 5 August 2026.

The great concern for this Tribunal is that if the Applicant remains in Australia and commits further serious episodes of domestic violence against LAI with potentially serious or even fatal consequences, the outcome for the children might be even worse than were the applicant to be deported. Their mother might be dead, and their father might be in prison for a murder which they had witnessed.

The children are of tender years, and the Tribunal considers that their best interests are served by having a mother who can go about her business of raising them as best she can, with minimised harassment and risk to her own safety and wellbeing.

35    With respect to the applicant’s niece and nephew, the Tribunal concluded that the older of them may experience some adverse impact but there will be little impact on the younger who was a new born at the time the applicant was remanded in custody (at [262]).

36    At [264], the Tribunal concluded that Primary Consideration 3 weighed heavily against revocation of the cancellation decision.

37    Regarding Primary Consideration 4, the Tribunal concluded that the applicant had failed to meet the expectations of the Australian community given his repeated offending which increased significantly from July 2019, his "contempt for court orders" and that he seemed to "be unperturbed by very frequent interactions with the police” (at [270]-[271]). In making these findings, the Tribunal acknowledged that the applicant has lived in Australia since 2008 and made some contributions during that period (at [270]), however ultimately concluded that Primary Consideration 4 weighed heavily against revocation (at 272).

38    The Tribunal gave neutral weight to the Other Consideration 2. The Tribunal considered that the applicant would be able to receive the necessary treatment in Scotland for his MS and mental health conditions (at [278]). The Tribunal noted that the applicant would "face deeply personal challenges” in returning to Scotland as all of the applicant's immediate, and some of his extended, family live in Australia (at [279]). As to the applicant’s remaining extended family in Scotland and Ireland, there was no evidence before the Tribunal as to their “willingness or capacity” to provide him with assistance should it be needed (at [279]). The Tribunal concluded that the applicant "should be able to avail himself of the same social, medical and economic support as any other citizen of Scotland" (at [279]).

39    With respect to Other Consideration 4, the Tribunal accepted that "all the applicant's immediate family are either Australian citizens, permanent residents, or otherwise entitled to remain in Australia" (at [286]). The Tribunal considered the applicant's family to include his current partner, former partner, four children, mother, step-father and three siblings, and accepted that all them would "suffer some emotional and possibly financial hardship" if he were returned to Scotland (at [286]).

40    The Tribunal considered that the applicant's "deportation will be a two edged sword" for his former wife. On the one hand she will be able to raise the children in peace, but on the other she will be deprived the financial support of the applicant should he be able to remain in Australia (at [289]). Ultimately the Tribunal concluded that Other Consideration 4 weighed in favour of revocation of the decision (at [294]).

41    Other Considerations 1 and 3 were ascribed neutral weight by the Tribunal in the absence of any relevant evidence.

42    Overall, the Tribunal concluded that Primary Consideration 1 and 2 weighed very heavily against revocation, and Primary Considerations 3 and 4 weighed heavily against revocation. The Tribunal attributed neutral weight to Other Considerations 1, 2, and 3. Other Consideration 4 weighed in favour of revocation. Thus the Tribunal concluded that application of Direction 90 favoured non-revocation of the cancellation of the applicant's visa (at [300]).

CONSIDERATION

Grounds of Review

43    The applicant's grounds of review, save for ground 2(b) and 3 which were not pressed, are as follows:

1.    In the course of determining under s 501CA(4) of the Migration Act 1958 (Cth) (Act) whether there was ‘another reason’ to revoke the cancellation of the Applicant’s visa, and in purported compliance with Direction 90 issued under s 499(1) of the Act, the Administrative Appeals Tribunal (Tribunal) erred jurisdictionally in its assessment of ‘extent of impediments if removed’ by:

a.    failing to understand and evaluate the Applicant’s representations concerning the effect that his removal would or may have on his physical and/or mental health (or failing to ‘consider’ these matters as required by Direction 90); and/or

b.    failing to understand and evaluate the Applicant’s representations concerning the effect his multiple sclerosis (MS) would or may have on his ability to secure work if he were removed (or failing to ‘consider’ these matters as required by Direction 90).

Particulars of ground 1(a)

(i) The Applicant made representations that his removal would or may have a negative effect on his physical and/or mental health, including because it would deprive him of his continued involvement in a medical trial in Australia for his MS (see, e.g., Tribunal reasons, T, [64], [92]).

Particulars of ground 1(b) (i)

(i) The Applicant made representations that his MS would or may negatively affect his ability to obtain work if he were removed (T [93]).

2.    In the course of determining under s 501CA(4) of the Act whether there was 'another reason' to revoke the cancellation of the Applicant's visa, and in purported compliance with Direction 90 issued under s 499(1) of the Act, the Tribunal erred jurisdictionally in its assessment of ‘the best interests of minor children in Australia’ by:

a.    denying the Applicant procedural fairness by failing to afford him an opportunity to respond to the contention that the best interests of his four biological children may weigh (heavily) against revocation of the cancellation of his visa;

…

Particulars of ground 2(a)

(i) The delegate found that the best interests of the Applicant’s minor children weighed in favour of revocation. Before the Tribunal, the Minster initially accepted that this finding was ‘open’ and did not contend that the best interests of the Applicant’s minor children weighed against revocation until closing oral submissions.

(ii) The Tribunal nevertheless concluded that the best interest of the Applicant’s minor children weighed against revocation (T [264]) without affording the Applicant an opportunity to be heard on that issue.

…

4.    In the course of determining under s 501CA(4) of the Act whether there was ‘another reason’ to revoke the cancellation of the Applicant’s visa, and in purported compliance with Direction 90 issued under s 499(1) of the Act, the Tribunal erred jurisdictionally in its assessment of ‘protection of the Australian community’ by:

a.    denying the Applicant procedural fairness by failing to afford him an opportunity to be heard on the idea that his ‘lies’ to the Tribunal on review could constitute ‘other serious conduct’ within the meaning of paragraph 8.1 of Direction 90;

b.    denying the Applicant procedural fairness by finding that he had provided false or misleading information to the Department within the meaning of paragraph 8.1.1(1)(f) of Direction 90 without affording him an opportunity to be heard on that issue;

c.    misinterpreting or misapplying paragraph 8.1.1(1)(b)(ii) of Direction 90 in reaching the conclusion that it was enlivened by the Applicant’s two offences of obstructing a police officer; and/or

d.    having regard to an irrelevant consideration or irrelevant considerations, namely, the ‘increased costs of law enforcement and an added burden to legal administration which the taxpayer would have to fund’ if the Applicant’s visa cancellation was revoked and he re-offended in the future.

Particulars of ground 4(a)

(i) The Tribunal found that the Applicant’s ‘lies’ to the Tribunal in the review hearing constituted ‘extremely serious’ conduct falling within the meaning of ‘other serious conduct’ in paragraph 8.1 of Direction 90 (T [184]).

(ii) The Tribunal made that finding without affording the Applicant an opportunity to be heard on that issue.

Particulars of ground 4(b)

(i) The Tribunal found that the Applicant had lied in his ‘personal circumstances form’ and also misled the Minister as to whether he would offend in the future and concluded that those matters engaged paragraph 8.1.1(1)(f) of Direction 90 (T [169], [202]–[204]).

(ii) The Tribunal made that finding and reached that conclusion without affording the Applicant an opportunity to be heard on them.

Particulars of ground 4(c)

(i) In 2013 and 2015, the Applicant committed two offences of ‘obstructing a police officer’ (T [191]). The only evidence in respect of those offences was the Applicant’s evidence that they involved the Applicant ‘continuing to drive after the police had flashed their lights at me’ (T [77]) and two Queensland Police Service ‘Court Brief’ documents alleging that the Applicant drove and/or ran away from police. In respect of one of these offences, the Applicant was sentenced without conviction and without further penalty; in respect of the other, the Applicant was sentenced without conviction to a fine of $100 (T [77]).

(ii) The Tribunal held that the above two offences were ‘crimes against government representatives or officials’ of the sort to engage paragraph 8.1.1(1)(b)(ii) of Direction 90 (T [191]–[192]).

(iii) That was a misinterpretation or misapplication of the direction, including because on the evidence the Applicant’s crimes were not committed against government representatives or officials.

Particulars of ground 4(d)

(i) The Tribunal had regard to this irrelevant consideration, or these irrelevant considerations, at T [215].

 (Emphasis in original)

44    The hearing was held on 6 April 2023, where the applicant was represented by Mr Julian Murphy of counsel, and the Minister was represented by Mr Ben McGlade of counsel.

45    Counsel for the applicant read two affidavits of Ziaullah Zarifi affirmed on 31 October 2022 and 22 March 2023 which between them annex the transcript of the Tribunal proceedings.

46    The Minister joined issue with each of the applicant’s grounds of review. However, his primary submission was that any error that might have been made could not possibly be material. I will deal with materiality after dealing with each of the grounds of review.

Ground 1(a)

47    By ground 1(a) the applicant submitted that the Tribunal failed to understand and evaluate representations made by him with respect to the extent of impediments if removed. The relevant representations relate to the effect removal would have on the applicant’s physical and mental health in Scotland, as he would be deprived of access to an Australian trial of chemotherapy for MS (MS Trial): Plaintiff M1/2021 v Minister for Home Affairs (2022) 400 ALR 417; [2022] HCA 17.

48    The material before the Tribunal in that respect includes a letter from the applicant's representative to the Department of Immigration and Border Protection dated 10 December 2021, the applicant’s personal circumstances form dated 10 December 2021 and the applicant’s statement dated 13 December 2021. Each of those refers to the applicant participating in a chemotherapy trial for MS that is only available in Australia. The letter of 10 December 2021 and the applicant’s statement of 13 December 2021 link the possibility of the applicant’s MS worsening if he is not given access to the trial which may in turn increase the likelihood of his mental health being adversely affected, and his employment prospects being diminished. Furthermore, the applicant’s Statement of Facts, Issues and Contentions (SFIC) provided to the Tribunal prior to the hearing expressly states that the MS Trial is Australian only.

49    The Tribunal acknowledges that representations were made relating to the MS Trial at paragraph [64], [92] and [126] of its decision. However in its consideration of the "extent of impediments if removed" the Tribunal's conclusions at [277] were:

The Applicant is a 32-year-old man, with a lengthy history of drug use, and who suffers from MS as well as some mental health issues. There is no suggestion that he would be unable to receive necessary treatment for these conditions in Scotland, where he would be entitled to free health care. He will need to re-familiarise himself with availability of health care, and ensure he avails himself of those.

(Footnotes omitted, emphasis added)

50    The Minister submitted that the applicant's representations were unclear, equivocal, not "clearly articulated", relied on a number of assumptions unsupported by evidence and as such could not be considered "substantial" or "grounded in established facts". The Minister contended that the chemotherapy had only been administered during two years of the MS Trial and not since, and it was speculative whether further chemotherapy might be administered in the future should the applicant's symptoms worsen again. As well, the applicant had not suggested or led evidence that chemotherapy, was not available in the UK. Furthermore, the MS Trial was limited in time and due to finish in 2023/2024, therefore any benefit the applicant obtained was also necessarily limited.

51    The Minister submitted that paragraph 9.2(1)(a) of the Direction was not engaged because there was nothing before the Tribunal to suggest that the applicant's inability to access the MS Trial would cause him an impediment in establishing himself and maintaining a basic standard of living, nor was it clear what detriment the applicant would suffer without access to the trial. The Minister relied on GXXS v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 468 (Derrington J) at [55(a)].

52    The Minister also submitted that the Tribunal did not consider there to be "reliable or weighty" evidence regarding the MS Trial before it, nor as to the future of the applicant's MS and that the applicant himself was uncertain as to his future prognosis based on his SFIC. On that basis, the Minister submitted that it could not be inferred that the Tribunal failed to consider the representations. The Minister submitted that, in circumstances where the applicant’s representations lacked clarity, the Court should exercise “considerable caution” before determining that those representations were not considered: AXT19 v Minister for Home Affairs [2020] FCAFC 32 (Flick, Griffiths and Moshinsky JJ) at [56].

53    These submissions must be rejected for the following reasons.

54    First and most importantly, the representations are clearly able to be identified. This is not a case like GXXS where there was nothing in the applicant's "representations document, his legal representative submissions to the Minister, his primary statement of evidence, his statement of facts, issues and contentions to the effect that he would suffer impediments as a result of his unresolved alcohol dependency": at [37]. Nor does AXT19 provide assistance, where in that case the Tribunal clearly undertook a consideration of the relevant representations, as set out by the Full Court at [52]. Furthermore, the representations made by the applicant were not obscure or uncertain, and finding that his representations are clearly identifiable is not an attempt at elevating a statement made in passing into a clearly articulated claim: AXT19 at [56].

55    The Tribunal reflected the representations and evidence referred to above at paragraphs [64], [92] and [126] of its reasons. The applicant's representations were that the MS Trial, and the use of chemotherapy in that regard (as opposed to simply treatment for MS generally, or chemotherapy generally) was only available in Australia. The Tribunal found that there was no suggestion that he could not receive necessary treatment in the UK. It is clear that the representations were not understood or evaluated.

56    I do not consider that the applicant’s representations regarding the MS Trial lacked clarity. The representations were made consistently before the Minister and before the Tribunal, as set out above. Whilst the representations were made succinctly and in the absence of supporting expert evidence, they were none the less required to be considered: Hernandez v Minister for Home Affairs [2020] FCA 415 at [23] - [25] (Charlesworth J).

57    The Minister made submissions regarding the availability of chemotherapy in the UK, which were speculative. Whilst the applicant’s evidence is brief and not supported by expert evidence, it is clear the MS Trial concerns the use of a chemotherapy drug in a specific context, not chemotherapy at large.

58    I also do not consider this to be an instance where, as the Minister contended, the Tribunal's reasons are being read with an eye keenly attuned to the perception of error: BVD17 v Minister for Immigration and Border Protection (2019) 268 CLR 29; [2019] HCA 34 at [38] (Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ). The representations were consistently put by the applicant and the Tribunal failed to engage with the representations. The principle that one ought not to read reasons of a Tribunal with an eye keenly attuned to the perception of error should not be mistaken for a principle that allows the Tribunal to fail to critically examine and engage with the material before it: Huang v Minister for Immigration and Multicultural Affairs [2001] FCA 901 at [20] (Drummond J).

59    The error in ground 1(a) is established.

Ground 1(b)

60    By ground 1(b) the applicant submitted that the Tribunal failed to consider representations that his MS would or may negatively affect his ability to work if removed to the UK. The applicant submitted that the relevant representations were made in his statement dated 13 December 2021 at paragraphs [21] and [82]. At [21], it was stated that that the applicant lost his job in 2018 which he believed was due to not performing satisfactorily as a result of to his MS symptoms and depression. The applicant linked his future possible inability to find work in the UK to a deterioration in his health due to the MS Trial being unavailable to him at paragraph [82].

61    The applicant submitted that the Tribunal failed to engage with the representations by its observation that "[h]e has worked successfully in Australia as a tyre fitter, and there does not appear to be any reason why he ought not be able to do so in Scotland" (at [278]). The use of the word "appear" in the Tribunal's reasons, the applicant submitted, is "tentative" and reinforces that the Tribunal had difficulty recalling the relevant evidence and submissions and therefore overlooked the representations.

62    Those submissions must be rejected.

63    While the applicant’s representations made in his statement dated 13 December 2021 discuss impediments he would face with respect to employment, subsequent evidence he provided to the Tribunal makes no reference to such impediments. No mention is included in his SFIC (dated 15 July 2022). In his written statement provided to the Tribunal (dated 1 August 2022), the applicant stated that he aimed “to seek employment asap”. Crucially, in the oral evidence given at the Tribunal hearing, the applicant stated that "I aim to return to employment as soon as I can", and "I will seek employment".

64    In those circumstances it is difficult to see how the representations were "clearly articulated" or "clearly emerged": Plaintiff M1 at [25]. The Minister submitted, and I accept, that the Tribunal’s decision forms part of the "administrative continuum", therefore the applicant’s case needs to be considered as it was put before the Tribunal: Mamatta v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 637 at [19] (Logan J). Before the Tribunal, the applicant did not, in any clear or substantive way, express that he would face difficulty in obtaining work as a result of his MS. Consistent with the reasoning of Mortimer J (as her Honour then was) in Kymm v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1069 at [76] - [83], the Tribunal was entitled to take up the applicant's position with respect to employment as it was put before the Tribunal.

65    Accordingly, ground 1(b) must fail.

Ground 2(a)

66    By ground 2(a) the applicant contends that he was denied procedural fairness in that he was not put on notice by the Tribunal that it considered Primary Consideration 3 to weigh heavily against revocation of the decision.

67    It is accepted that the applicant has four Australian minor children and that he is subject to a protection order until 5 August 2026, whereby he may not have contact with the children without the consent of their mother. Even though there was a protection order in place when the delegate of the Minister made his or her decision, the delegate found that it was in the best interests of the applicant's children that the visa cancellation be revoked. The delegate gave this consideration significant weight.

68    The applicant's SFIC strongly emphasised that it was the best interests of his minor children in Australia that his visa cancellation be revoked. It stated that he “concurs with the Minister” referring to the delegate’s decision as it applied to the best interests of his children.

69    The Minister's SFIC, in dealing with the best interests of minor children, stated "[a]lthough it is open for the Tribunal to find that it is in the best interests of the applicant's children that the cancellation decision to [sic] be revoked, the Minister contends that their best interests should be given lesser weight”. The Minister’s reason for it being given lesser weight included the applicant’s absence from the children’s lives due to the protection order, the impact of his offending on his ability to play a positive parenting role, the absence of any independent evidence as to the impact of his removal upon the children and that he and the children could have contact through electronic means. Importantly, the Minister did not submit in his SFIC that Primary Consideration 3 should weigh against revocation, only that it should be given lesser weight.

70    On the first day of the hearing before the Tribunal, the Minister gave no indication of a changed position in relation to the best interests of the children and nothing was put to the applicant in cross examination to suggest the Ministers' position now was that the best interests of minor children should weigh against revocation.

71    At the second day of hearing before the Tribunal, the applicant and Minister respectively made their closing submissions. For the first time, it was submitted by the Minister that "it is not in the best interests of those children for the applicant to remain in Australia".

72    After the Minister's closing submissions the following exchange occurred between the Tribunal Member and applicant:

MEMBER: Thank you very much indeed, Mr Burgess. Mr Buntin, customarily that is the end of the hearing. Because you are self-represented, if you have any brief comment you would like to make, I am happy to hear it.

MR BUNTIN: Yes. In the case of domestic violence, my ex-partner and I would not be getting back together, so there would be no expectations of family violence. She has messaged me and Face Timed me on regular occasions where obviously my children are asking, “When are you coming home?” To tell them that you might never see them again is hard.

MEMBER: Yes, thank you, Mr Buntin. Mr Burgess, you don’t need to respond on that, do you?

MR BURGESS: No, I don’t.

MEMBER: Yes, very well. Thank you, gentlemen. I note the 84th day for this decision is 26 August 2022. I will certainly be bringing down a decision no later than that date and if possible, I will do it a little earlier. Thank you very, Mr Buntin. Whatever the outcome here, sir, I wish you all the best for the future. Mr Burgess, thank you very much for your helpful and thorough submissions. That concludes the hearing.

73    The applicant submitted that he was “entitled to assume that the issues the delegate considered dispositive are the issues arising in relation to the decision under review”, and the Tribunal ought to have explained the significance of the change of position to the applicant and provided him with an option to respond: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 at [35] (Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ). In failing to do so the Tribunal denied the applicant procedural fairness.

74    The Minister submitted no alleged error giving rise to any practical injustice emerged. In drawing a distinction between this case and Nathanson v Minister for Home Affairs (2022) 403 ALR 398; [2022] HCA 26 (Kiefel CJ, Gageler , Keane , Gordon , Edelman and Gleeson JJ), the Minister submitted that the correct principles by which to consider whether the applicant had been afforded procedural fairness were the "orthodox” principles as are set out in SZBEL and Degning v Minister for Home Affairs (2019) 270 FCR 451; [2019] FCAFC 67 (Allsop CJ, Collier and Thawley JJ).

75    The Minister advanced the proposition that even had extremely favourable weight been attributed by the Tribunal to Primary Consideration 3, it would not have affected the outcome given the weightings attributed to the remaining considerations. The Minister submitted that having regard to the Tribunal’s findings at paragraphs [247] – [263] of its decision which underscored the ultimate weight attribution regarding this Primary Consideration, it is “impossible” to see how the Tribunal would have ever have given it “very heavy favourable weight”.

76    The Minister's submission in relations to this ground cannot be accepted.

77    In SZBEL at [32] the High Court approved the following statement by the Full Court in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576; [1994] FCA 1074 (Northrop , Miles and French JJ):

It is a fundamental principle that where the rules of procedural fairness apply to a decision-making process, the party liable to be directly affected by the decision is to be given the opportunity of being heard. That would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material.

(Emphasis in original)

78    Further in SZBEL, the High Court at [35] stated:

The Tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the Tribunal. But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are "the issues arising in relation to the decision under review". That is why the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision. And unless some other additional issues are identified by the Tribunal (as they may be), it would ordinarily follow that, on review by the Tribunal, the issues arising in relation to the decision under review would be those which the original decision-maker identified as determinative against the applicant.

79    The principle is reiterated in Nathanson where Gageler J (concurring with Kiefel CJ, Keane and Gleeson JJ) stated at [56]:

In the present case, the circumstances of which are fully described by Kiefel CJ, Keane and Gleeson JJ, the denial of procedural fairness lay in the failure of the Tribunal to afford the appellant a fair opportunity to be heard on a decision-making criterion. The appellant had already presented some evidence and made some submissions concerning events which related to that criterion. But he had presented that evidence and made those submissions without having had his attention adequately drawn to the significance of that decision-making criterion and therefore without having been put on notice of the possible significance of those events to that criterion. That decision-making criterion was shown by the Tribunal’s reasons to have borne centrally on the evaluative and discretionary decision which the Tribunal went on in fact to make adversely to the appellant. 

80    In this case the delegate's position was clear. The best interests of minor children were said to favour revocation and the consideration was afforded "significant weight". Whilst the applicant's use of the words "concurs with the Minister" in his SFIC (which was lodged before that of the Minister) may be inapt, they simply reflect that he was self-represented.

81    The Minister’s SFIC endorsed the delegate's position but contended that Primary Consideration 3 be given lesser weight. On a plain reading of the Minister’s SFIC, the applicant, self-represented as he was, would not interpret the words “be given lesser weight" to mean "it is not in the best interests of those children" (emphasis added) which is what was ultimately submitted by the Minister in closing submissions at the Tribunal hearing. Nor does the general invitation by the Tribunal to make "brief closing submissions", absent any further articulation of the change in the Minister’s position, afford a self-represented litigant procedural fairness.

82    Up to that point the applicant had made submissions and presented evidence regarding the best interests of the minor children, but he had done so on the basis that it was accepted by the delegate and by the Minister that Primary Consideration 3 weighed in favour of revocation (albeit to a lesser degree as submitted by the Minister in his SFIC), rather than on the basis that Primary Consideration 3 might weigh against revocation.. The Minister's case as it was put to the Tribunal, up until closing submissions, entitled the applicant to consider that his submissions should go to weight only, thus answering the Ministers contentions before this Court regarding the findings of the Tribunal in paragraphs [247] - [263].

83    I accept that the role of the Tribunal is to effectively remake the delegate’s decision, and therefore applicants should not assume that the delegate’s findings would be consistent with the Tribunal’s findings. However, I am not satisfied that the applicant was put on notice that the Tribunal might weigh Primary Consideration 3 against revocation, which neither party contended should be the case until the Minister gave his closing submissions. In circumstances where the applicant was unrepresented, this change in position without notice denied the applicant procedural fairness.

84    The error in ground 2(a) is established.

Ground 4

85    By ground 4 the applicant submitted that the Tribunal erred in its assessment of Primary Consideration 1 in four ways:

(a)    A denial of procedural fairness by failing to afford the applicant an opportunity to be heard on the finding that his lies to the Tribunal constituted “other serious conduct” within the meaning of paragraph 8.1 of Direction 90;

(b)    A denial of procedural fairness by failing to afford the applicant an opportunity to be heard on the finding that he has provided false or misleading information to the Department within the meaning of 8.1.1(1)(f) of Direction 90;

(c)    A misinterpretation or misapplication of paragraph 8.1.1(1)(b)(ii) of Direction 90 by concluding that the paragraph was enlivened by the applicant's two offences of obstructing a police officer; and

(d)    Having regard to irrelevant considerations in finding 'increased costs of law enforcement and an added burden to legal administration which the taxpayer would have to fund' if the applicant's visa cancellation was revoked and he re-offended in the future.

86    I will deal with ground 4(a) and (b) together.

87    Ground 4(a) refers to paragraph [184] of the Tribunal's decision, where the Tribunal found that the lies the applicant told before the Tribunal constituted “other serious conduct” within the meaning of paragraph 8.1.1(f) of Direction 90, which refers to "whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending".

88    Ground 4(b) refers to the Tribunal's finding at [169] that the applicant lied in his personal circumstances form where he ticked "No" next to the question "Provide details of any court orders or other that relate to your minor child/ren, that you want the decision-maker to take into account" and where he provided assurances that he would not commit any further offences. The Tribunal regarded those “lies” as providing false and misleading information to the Department for the purpose of cl 8.1.1(f) of Direction 90. At [202]-[204], the Tribunal found this to weigh very heavily against revocation of the mandatory visa cancellation.

89    The applicant submitted that lies being found to be discrete incidents weighing against him under Direction 90 is entirely different from the Tribunal finding him to be a liar. Furthermore, the applicant submitted that concerns with the personal circumstances form were not relied upon by the delegate nor included in the Minister's submissions before the Tribunal, and therefore the applicant was entirely unaware that this would form part of the Tribunal's reasons. In both of these instances, the applicant submitted that he was denied procedural fairness in not being provided the opportunity to make apposite submissions.

90    The applicant submitted that the personal circumstances form, in asking for any information about court orders relating to minor children, could be interpreted to mean “any orders that are in the applicant's favour”, as the examples under the question include maintenance payments and care arrangements and, in any event, the applicant referred to the protection order on the following page of the form. The applicant submitted that he could have made submissions that he did not lie on the form by pointing to the reference to the protection order. Additionally, the applicant submitted that having a present intention to not reoffend, and then reoffending some time later, is very different from saying that he lied when making that assurance.

91    The Minister contended that the rules of procedural fairness were not breached when regard is had to the settled position in SZBEL at [29], such that procedural fairness requires a decision maker "to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material." The Minister submitted that it is "hardly a long stretch" for the Tribunal, standing in the shoes of the decision maker, to regard lies that are told to it as “other serious conduct”. Furthermore, the Minister contended that the findings played little into the Tribunal weighing the considerations as “very serious” when regard is had to the "enumerate" other adverse findings which were made against the applicant.

92    I accept the applicant's submissions. Procedural fairness requires that the applicant be given “the opportunity to deal with matters adverse to the applicant's interests which the decision-maker proposes to take into account, even if the source of concern by the decision-maker is not information or materials provided by the third party, but what is seen to be the conduct of the applicant in question”: Somaghi v Minister for Immigration Local Government and Ethnic Affairs (1991) 31 FCR 100 at 119 (Gummow J) quoted with approval in Alphaone at 592. The applicant was not represented before the Tribunal. Contrary to the Minister's submission, the possibility that the Tribunal might consider the statements in this way cannot reasonably be said to have been "self-evident" to him. The Tribunal failed to put either of these potential findings to the applicant and afford him an opportunity to respond. As such, the applicant was denied procedural fairness.

93    The errors in grounds 4(a) and 4(b) are established.

94    Next, I will deal with ground 4(c).

95    Ground 4(c) takes issue with the Tribunal's findings at [191]-[192] of its decision, where it attributed the offence of obstructing a police officer as enlivening the considerations under cl 8.1.1(1)(b)(ii) of Direction 90, and subsequently weighed this very heavily against revocation of the mandatory visa cancellation.

96    Clause 8.1.1(1)(b)(ii) of Direction 90 falls under Primary Consideration 1 and provides that crimes committed against "government representatives or officials due to the position they hold, or in the performance of their duties" is viewed by the Australian community as serious.

97    The applicant submitted that the two offences, committed in 2013 and 2015, included continuing to drive after police had flashed their lights at him, and running away from police. Both offences attracted “trifling” sentences, the first being a no penalty and no conviction, and the second being a $100 fine and a conviction. The applicant submitted that while the crimes involved government officials, being police officers, they did not as a matter of fact involve crimes that were committed "against" a police officer. It was submitted that the Tribunal misinterpreted or misapplied this aspect of Direction 90 as cl 8.1.1(1)(b)(ii) is concerned with fact rather than legal definition, and it is clear that the consideration is concerned with people targeting government officials due to the position they hold. The applicant submitted that he merely evaded the police which is not, as a fact, an act against a government official due to the position they hold.

98    The Minister referred to the definition of the word "against", being "in opposition to; contrary to; adverse or hostile to" and submitted that the crimes committed by the applicant hindered the police officers from performing their duties and therefore fell within the scope of cl 8.1.1(1)(b)(ii).

99    The Minister's submission is accepted. It was open to the Tribunal to find the offence of obstructing a police officer as a crime against those police officers, who are government officials. To attempt to distinguish between the legal definition and factual commission of a crime, such that the crime was not, as a matter of fact, done against a government official, but involved the applicant essentially avoiding a police officer, is a mere quibble over semantics.

100    Ground 4 (c) must fail.

101    Lastly, I will deal with ground 4(d).

102    Ground 4(d) is concerned with the Tribunal's findings at [215], which stated:

The applicant’s history suggests that if he does re-offend in future, any re-offending is unlikely to be an isolated episode, and he is unlikely to be compliant with the current DVO any future bail conditions or court orders. There could be increased costs of law enforcement and an added burden to legal administration which the taxpayer would have to fund.

(Emphasis added)

103    The applicant submitted that this is an irrelevant consideration in light of "the subject-matter, scope and purpose of the revocation power in s 501CA(4)" of the Act: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40 at 40.

104    The Minister contended that the matters relevant to considerations under s 501CA(4) of the Act are broad and unfettered, and therefore this argument has no merit.

105    The applicant submitted, and I accept, that the primary purpose of the revocation power is to protect the Australian community from harm and it is not concerned with the expenditure of public funds. The applicant submitted that while the considerations in Direction 90 are not exhaustive, the revocation power is concerned with a person’s "character" and the harm they might cause, and the consideration of the cost to the taxpayer is irrelevant to a person’s character. There is much force in this submission. In taking into account future potential costs associated with the possible incarceration of the applicant while considering the nature of the harm to individuals or the Australian community were the applicant to engage in further criminal or other serious conduct, the Tribunal has had regard to an irrelevant consideration.

106    The error in ground 4(d) is established.

Materiality

107    The Minister contended that the grounds of review advanced by the applicant relate to immaterial aspects of the Tribunal's decision.

108    The grounds upon which the applicant has established error, being ground 1(a), 2(a), and 4(a), (b) and (d), reveal errors with respect to Primary Consideration 1, Primary Consideration 3, and Other Consideration 2.

109    Gageler J in Nathanson, agreeing with the plurality on this point, considered materiality in the context of procedural fairness, stating at [45]-[47]:

SZMTA and MZAPC are together authority for two cumulative propositions. The first is that a denial of procedural fairness results in a decision being affected by jurisdictional error, so as to be capable of justifying the grant of curial relief, only if that denial is shown by the applicant to have been material to the decision. The second is that the materiality of a denial of procedural fairness is shown by the existence of a realistic possibility that the decision could have been different had procedural fairness been observed.

SZMTA and MZAPC do not hold that, in order to meet the threshold of materiality, an applicant for relief must establish any part of what would have occurred on the balance of probabilities had a fair opportunity to be heard been afforded. The onus which the applicant bears to establish materiality is no greater than to show that, as a matter of reasonable conjecture within the parameters set by the historical facts established on the balance of probabilities, the decision could have been different had a fair opportunity to be heard been afforded.

Establishing that threshold of materiality is not onerous. The explanations in MZAPC of the materiality of the denials of procedural fairness which had been found in Stead v State Government Insurance Commission and in Re Refugee Review Tribunal; Ex parte Aala are consistent with the observation that "[i]t is no easy task for a court ... to satisfy itself that what appears on its face to have been a denial of natural justice could have had no bearing on the outcome".

(Emphasis in original, footnotes omitted)

110    The Minister submitted that it is "impossible” that the errors asserted by the applicant could have affected the outcome of the case. In that respect the Minister referred to paragraph [234] of the Tribunals reasons:

Applying the principles in paragraphs 5.2(3) and (5) of the Direction, the Tribunal is of the view that the harm that could be caused from future similar offending is so serious that even countervailing considerations are insufficient to justify revoking the mandatory cancellation of the applicant’s visa.

111    The Minister contended that, with respect to an applicant who had been described as "incorrigible" (at [223]) and in respect of whom the Tribunal hold "grave fears" that if he were to be released he would engage in criminal conduct which would have “grave consequences" (at [233]), nothing would alter the outcome.

112    The Minister's submissions are rejected for the following reasons.

113    The word “realistic” used by authorities when considering materiality is used to distinguish between the realistic possibility of a different outcome, as opposed to a fanciful or improbable possibility: Chamoun v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 276 FCR 75; [2020] FCAFC 66 at [66] (Mortimer J (as her Honour then was) and Bromwich J).

114    In considering materiality of an error, it is incorrect to ask whether there is a “likelihood” of a different outcome. Rather it has to be asked whether, without the error, the outcome “could” have been different: Minister for Immigration and Border Protection v CPA16 (2019) 268 FCR 379; [2019] FCAFC 40 at [33] (Yates, Murphy and Moshinsky JJ).

115    The low bar attributed to materiality and the counterfactual nature of considering whether an error is material is to avoid engaging in a “hypothetical merits review”: MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506; [2021] HCA 17 at [38] (Kiefel CJ, Gageler, Keane and Gleeson JJ); Nguyen v Minister for Home Affairs [2020] FCA 127 at [91] (Banks-Smith J).

116    In circumstances where a decision-maker considers a finding, which the Court has then determined to be erroneous and significant, this tends to suggest that a different outcome is neither “fanciful” nor “improbable”: Khodr v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 198 at [118] (Bromberg J).

117    The onus, while on the applicant, need only be “slight” to be enough: MZAPC at [158] (Edelman J). 

118    Accordingly, I am satisfied that, had the errors not been made, there is a realistic possibility that a different decision could have been made, despite the Tribunal’s finding at [234]. This view is bolstered, adopting the reasoning in RZMW v Minister for Home Affairs [2019] FCA 1761 at [19], [66]–[68] (Jackson J), in light of the accumulation of errors.

conclusion

119    Accordingly, the Tribunal’s decision must be quashed and a writ of mandamus must issue requiring the Tribunal to hear and determine the applicant’s review application according to law. The Minister must pay the applicant’ costs.

Associate:

Dated:    7 September 2023