Federal Court of Australia

VZWF v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1160

ORDERS

THE COURT ORDERS THAT:

1.    The time within which the applicant be permitted to file an application pursuant to s 476A of the Migration Act 1958 (Cth) be extended pursuant to s 477A(2) of the Act, to 12 April 2023.

2.    The decision of the second respondent dated 27 May 2021 affirming a decision by a delegate of the first respondent dated 3 March 2021 not to revoke the cancellation of the applicant's visa be set aside.

3.    The matter be remitted to the second respondent for redetermination according to law.

4.    The first respondent pay the applicant's costs fixed in the sum of $1,500 and those costs be paid directly to Mr TM Lettenmaier, pro bono counsel for the applicant, pursuant to r 4.19(3) of the Federal Court Rules 2011 (Cth).

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

REASONS FOR JUDGMENT

COLVIN J:

1    The applicant's visa has been cancelled pursuant to s 501(3A) of the Migration Act 1958 (Cth). He made submissions requesting that the cancellation be revoked in the exercise of the power conferred by s 501CA. A decision was made not to revoke the visa cancellation. The applicant sought review in the Administrative Appeals Tribunal. The Tribunal affirmed the decision not to revoke. The applicant commenced proceedings in this Court seeking an extension of time in which to review the Tribunal's decision and for an order setting aside the Tribunal's decision and for the matter to be remitted for redetermination if the extension was granted.

2    The Minister accepts that there is a proper basis for an extension of time pursuant to s 477A(2). The Minister also concedes that it is appropriate for the decision of the Tribunal to be set aside and for the matter to be remitted to the Tribunal.

3    Even where the proper contradictor to an application for judicial review consents to the grant of relief, the Court must be satisfied that there is error and there is a public interest that requires the Court to specify the error and its satisfaction that an error has occurred which justifies the proposed relief being granted within the public law jurisdiction of the Court: see my reasoning in VNPC v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 921 at [3]-[6].

4    The Minister accepts that the Tribunal did not undertake its review in accordance with s 500(1)(ba) because it failed to weigh the different mandatory relevant considerations against one another in order to reach the ultimate conclusion on whether there was 'another reason' for the purposes of s 501CA(4)(b)(ii). The reference to mandatory relevant considerations is a reference to 'Direction No. 90 - Visa refusal and cancellation under section 501 and revocation of mandatory cancellation of a visa under section 501CA' (Direction). Irrespective of whether it is appropriate to refer to the requirements of the Direction as a mandatory relevant consideration, it is well established that a failure to comply with a requirement of the Direction may result in jurisdictional error: FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 19 at [6]; and Uelese v Minister for Immigration and Border Protection [2015] HCA 15; (2015) 256 CLR 203 at [64]-[68].

5    If there was such another reason then there would have been power and probably a duty to revoke the visa cancellation: Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 125; (2021) 285 FCR 187 at [3]-[4] (Katzmann J), [100] (O'Bryan J), [51] (Derrington J in dissent).

6    Based upon the reasoning in CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138 at [37]-[38] (Colvin, Stewart and Jackson JJ), the Minister accepts that there has been a failure to conform to the requirements of the Direction. In the present case, like in CRNL, the Tribunal identified and considered each of the primary and other considerations specified in the Direction. For each consideration it attributed a descriptor of the weight to be afforded that consideration before moving to the next. The conclusion to the Tribunal's reasons then began by stating 'I am now required to weigh all of the Considerations in accordance with the Direction'. It followed that statement with a list of the considerations and the descriptor as to the weight to be placed on the consideration that had been earlier determined. Some considerations were against revocation and some favoured revocation. The Deputy President then simply stated:

Application of the Direction therefore favours the non-revocation of the cancellation of the Applicant's visa.

Consequently, I do not exercise the discretion to revoke the cancellation of the Applicant's visa.

7    There was no other reasoning that might be said to indicate a relative weighing of the considerations.

8    An approach of that kind fails to undertake the principal burden of the Direction which is to undertake an overall weighing of the competing considerations to determine whether, in the circumstances of the particular case, there is 'another reason' to revoke the visa cancellation. The question is not whether 'moderate' or 'considerable' weight might be placed upon a particular consideration followed by a totalling of the ledger of considerations. The task is not to be disaggregated in that manner and the evaluative nature of the task is not discharged by undertaking some form of calculation. Rather, the considerations (to the extent relevant) must be turned over in the mind of the decision-maker together and all brought to bear in reaching a conclusion.

9    Exposition in the reasons may require the considerations specified in the Direction to be addressed one by one. However, attributing relative weight must involve 'a single evaluation of their relative significance thereby weighing them all together': CRNL at [28].

10    In those circumstances, I am satisfied that there is a proper basis for the concession made by the Minister.

11    It follows that the orders proposed by the consent of the parties should be made.

Associate:

Dated:    27 September 2023