Federal Court of Australia

Ngatoko v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1165

ORDERS

THE COURT ORDERS THAT:

1.    The name of the first respondent be amended to read ‘Minister for Immigration, Citizenship and Multicultural Affairs’.

2.    A writ of certiorari be issued quashing the decision of the second respondent of 28 April 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 24 September 2020.

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

4.    The costs of the application are reserved.

5.    On or before 13 October 2023 the applicant is to file and serve a 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.

6.    On or before 20 October 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    The applicant is a citizen of New Zealand. He first entered Australia in 2002 as an eight year old. He intermittently returned to reside in New Zealand until 2016 when he was granted a Class TY Subclass 444 Special Category (Temporary) visa. He has not departed Australia since this time. In October 2018 he was convicted in New South Wales of a number of offences, some of which involved domestic violence. The victim of these offences was the applicant’s former partner. He was sentenced to a term of imprisonment of 12 months for those offences. Shortly after his release from prison, the applicant committed further offences involving domestic violence against the same victim. In February 2020 the applicant was convicted of those offences and sentenced to a period of 20 months imprisonment. As a consequence of these offences, in April 2020 a delegate of the first respondent (Minister) cancelled the visa under s 501(3A) of the Migration Act 1953 (Cth).

2    In response to an invitation of the Minister under s 501CA(3), the applicant made representations requesting revocation of the cancellation of the visa. In September 2020 a delegate of the Minister made a decision not to revoke the cancellation decision under s 501CA(4) of the Act. In October 2020 the applicant applied to the second respondent (Tribunal) for review of the delegate’s decision under s 500(1)(ba) of the Act. On 28 April 2021 the Tribunal affirmed the delegate’s decision.

3    The applicant has applied to this Court for judicial review of the Tribunal’s decision affirming the delegate’s decision under s 477A of the Act. For the reasons which follow the applicant should succeed on ground 2A of his amended application, but all other grounds, including ground 3A, should be dismissed.

Legislative framework

4    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 s 501(6)(a) and s 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, a State or a Territory. It is common ground that the applicant does not pass the character test.

5    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) 400 ALR 417 at [10].

6    A consequence of the cancellation of a visa under s 501(3A) is that the former visa holder is no longer a lawful non-citizen and becomes an unlawful non-citizen: ss 13, 14, 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: s 189 and s 198 of the Act. In this case, at the completion of the applicant’s custodial sentence he was taken into immigration detention where he remains.

7    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.

8    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.

9    Section 496 of the Act makes provision for the Minister to delegate to a person any of the Minister’s powers under the Act. Decisions under s 501CA(4) are usually made by a delegate of the Minister. In those circumstances, the former visa-holder has a right to request the Tribunal to review a decision to refuse to revoke a cancellation decision: s 500(1)(ba). Subject to certain procedural modifications, a review under s 500(1)(ba) is undertaken by the Tribunal in its general division.

10    In deciding whether there is ‘another reason’ why the mandatory cancellation of a former visa-holder’s visa should be revoked, a delegate of the Minister and the Tribunal are bound, by s 499(2A), to comply with any direction given by the Minister under s 499(1) of the Act. In this case, the Tribunal was bound to comply with Direction No. 79: Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA which is dated 20 December 2018 and commenced on 28 February 2019.

11    Section 6 of Direction 79 contains a preamble that sets out the objectives of the direction, general guidance to decision-makers and principles. Amongst other things, para 6.1(4) indicates that the purpose of the direction is to guide decision-makers in performing functions or exercising powers under, relevantly, s 501CA of the Act. Paragraph 6.2(3) indicates that the principles provide a framework within which decision-makers should approach their task of deciding, relevantly, whether to revoke a mandatory cancellation under s 501CA and that the factors identified in Part C must be considered in making that decision. Paragraph 6.3 sets out the principles that are the framework referred to in para 6.2(3).

12    Section 7 provides that, informed by the principles in para 6.3, a decision-maker must take into account, relevantly, the considerations in Part C. Section 8 provides guidance on the appropriate weight to be given to information and evidence from independent and authoritative sources. Both primary and other considerations may weigh in favour of or against a decision, but, generally, primary considerations should be given greater weight than other considerations and one or more primary considerations may outweigh other primary considerations.

13    Section 13 in Part C of Direction 79 sets out the primary considerations. These are: (1) protection of the Australian community from criminal or other serious conduct; (2) the best interest of minor children in Australia; and (3) expectations of the Australian community. Part C Section 14 sets out the other considerations. These are: (1) international non-refoulement obligations; (2) strength, nature and duration of ties to Australia; (3) impact on Australian business interests; (4) impact on victims; and (5) extent of impediments if removed from Australia. Where relevant, these other considerations must be taken into account.

Tribunal’s reasons

14    The applicant represented himself in the proceedings before the Tribunal. In those proceedings, unlike the Minister, he did not file a statement of facts, issues and contentions. However, the Tribunal had before it documents provided under s 501G of the Act (referred to as G documents). These included the applicant’s request for revocation of the cancellation of his visa and a personal circumstances form along with other documents that were relevant to the delegate’s decision not to revoke the cancellation of the visa. In the absence of a statement of facts, issues and contentions and the provision of any further information or evidence to the Tribunal, the applicant’s ‘representations’ for the purposes of s 501CA(3) and s 501CA(4) are derived from the G documents.

15    Relevantly for the purposes of the grounds of review, in the applicant’s representations to the Minister (delegate) he said as his reasons for revocation: ‘I am writing to ask for a second chance because I’ve been here for … 9 years all together[.] [The] reason is that most of my family [I have are] here and I’ve got to live with my girlfriend and like I’ve been working most my years and the [reason] I went to Jail was the fact of [a] failed Relationship but everything [is] Settled now [things] are looking good’.

16    In the applicant’s personal circumstances form, he listed six minor children who are the children of his sisters, and are his nephews and nieces, as ‘his’ minor children. He said he lived with one sister and the mother of three of those children and saw them daily. He indicated that the impact on them was that they would grow up not knowing him and without a male role-model. They would ‘miss out on footy and would probably stop playing and will be sad not having [him] around’. As to the impact on these children, he said:

[W]ell the boys I live with I pretty much take them training and to [their] footy game[s]. [T]he other kids [I am] pretty much [their] only uncle on [their] mother[‘]s side so they wouldn’t get to know me if I wasn’t here.

17    The three other children were those of his other sister. He indicated that he saw those children about five times a year during holidays and for their birthdays. At the time of the hearing before the Tribunal that sister and those children had returned to New Zealand. He listed a further three children who are his nephews and niece and appear to be the children of other siblings.

18    He listed another 14 relatives. These were grandparents, siblings, aunts, uncles and cousins. All of his relatives except his grandparents are residents of Australia. Otherwise, he indicated that he had eight aunts and uncles, 11 nephews and nieces and six cousins in Australia. He described the impact on his family members in the following terms.

… my family will be [disheartened] if I don’t get a chance the impact would be that [I’m] [their] only brother the one that keeps the family together the one that organizes [r]eunions and family [outings] won’t be around. [T]he kids will suffer the most cause [I’ve] been around since they [were] born [I’m] like a …

The remaining part of that statement was not reproduced in the application book, but I infer the applicant continued to say that he was ‘like a father to them’ or words to that effect.

19    He also said that there would be hardship to his family if removed from Australia and his partner as, in effect, she relied on him for financial support.

20    One of the applicant’s sisters provided a letter in which she said:

… You see, [the applicant], my brother is my only family I have here (besides my children). Although his decisions have brought him to this point, I [can’t] express enough that due to his circumstances with the work accident, unfortunately it got the better of him. What happened with his partner at the time is not the type of person my brother is. … Compared to 26 years of being a hard working, family orientated, caring and compassionate young role model. And yes I say role model because that is exactly what my brother is for my children. He’s a father figure to my 3 children. [The applicant] is a huge part of my family, especially here in Australia. It feels like a huge chunk is missing and I would love to have it back please. I ask for compassion, for a chance for [the applicant], a chance at life. A chance to go forward in life here and a chance to make something of himself. A chance for my children to have their uncle with them. Give [the applicant] this opportunity to show Australia what [he’s] made of. I know what [he’s] capable of, I know [he] has drive and I know he will do a lot here if given that opportunity. Please don’t judge my brother for his mistake, instead help him so he can grow, strive and provide here. So he can be the man he planned to be when coming to Australia.

21    The Tribunal’s reasons for decision (T) commence with a summary of the background and relevant facts including a summary of the applicant’s offending history (T [1]-[29]), the circumstances of the cancellation of the visa and the delegate’s decision not to revoke the cancellation (T [30]-[35]) and the hearing and materials before the Tribunal (T [36]-[38]). The Tribunal then summarised Direction 79 (T [39]-[41]) before considering each of the primary and relevant other considerations in turn.

22    As to the primary considerations, the Tribunal considered and concluded that protection of the Australian community (primary consideration 1) weighed heavily in favour of non-revocation (T [42]-[54]) and that the expectations of the Australian community (primary consideration 3) (T [65]-[72]) also weighed heavily in favour of non-revocation.

23    The Tribunal considered the best interests of minor children in Australia affected by the decision (primary consideration 2) and concluded that consideration was, at best, neutral (T [55]-[64]). The Tribunal’s reasoning was as follows:

…

56.    The Applicant said that he has a sister who lives in Brisbane and she has three minor children, ranging in age from two to ten. She does not live with the father of her children, who has other children. The Applicant hopes to reside with his sister and help her with the children. I noted above that the Applicant lived with his sister in Brisbane for a short period in 2016.

57.    I note that in May 2020 the sister provided a supporting reference. She describes him as a ‘role model’ and ‘a father figure’ for her children and asks for a chance for her children to have him back with them. It is a loving and compassionate reference to which I have due regard.

58.    An objective assessment is that it is very unclear that the children’s best interests are served by ongoing contact with the Applicant.

59.    The Applicant’s past behaviours, as illustrated by his offending, have been unpredictable and potentially dangerous. The sort of behaviour that led to his convictions for domestic violence offences poses a serious risk to any young family. Moreover, he has developed a drug dependency in prison.

60.    The company he has kept especially in Sydney is problematic. The connection with an outlaw motorcycle gang has exposed him to risk.

61.    There is nothing to suggest that their mother is not able to manage their welfare.

62.    As matters stand, it is idealistic but not realistic to believe that ongoing contact with the children is necessarily in their best interests.

63.    I cannot find that the best interests of minor children favour revocation of the mandatory cancellation.

64.    I find that this primary consideration is at best neutral.

(Footnotes omitted.)

24    As to the other considerations, the Tribunal considered and concluded that international non-refoulement obligations was neutral (T [74]-[86]). The Tribunal considered that the strength, nature and duration of ties to Australia weighed moderately in favour of revocation (T [87]-[92]) and reasoned as follows.

87.    The Applicant has lived most of his life in New Zealand and came to this country on a permanent basis at the age of 21. He has lived in Australia on a more or less permanent basis since 2015 and continuously since July 2016.

88.    At the time of his arrival in 2016 he had an uncle in Melbourne and two sisters in Australia. His immediate family in Australia presently consists of his sister and her three children in Brisbane, his uncle in Melbourne, and various cousins, who are over 18. I note his desire to return to Brisbane and help his sister with the children. His other sister has returned to New Zealand with her three children.

89.    I note that after his relationship with Ms V came to an end, he had a brief romantic involvement with a woman he met before going to prison. Although they were still friends, the potential for something more had been put on hold due to the circumstances. He told the Tribunal that he thought she would be pretty upset if he were sent back to New Zealand, but he had not wanted her to put her life on hold.

90.    I note that he worked for his uncle in 2015, and hoped to be employed there in the future, as a steel construction worker. He said that his uncle’s wife had explicitly stated that he would have a job in the family business, and that he would be welcomed with open arms. Unfortunately, the uncle’s letter to the Minister did not refer explicitly to a job offer.

91.    However, as noted above, since his most recent arrival in July 2016, he has spent just over half that time in prison or immigration detention. He has been deprived of liberty continuously (with a two day break) since 4 October 2018.

92.    Nevertheless, I find that his ties with Australia are not insubstantial and weigh moderately in favour of revocation of the mandatory cancellation.

(Footnotes omitted.)

The manner in which the Tribunal addressed this other consideration is the subject of one of the grounds of review pressed on the application.

25    The Tribunal considered that the impact on Australian business interests was not relevant (T [93]) and impact on victims was neutral (T [94]-[97]). That impediments if removed from Australia weighed moderately in favour of revocation (T [98]-[108]). This other consideration and the manner in which the Tribunal dealt with the risk of harm to the applicant if removed from Australia is also the subject of one of the grounds of review pressed on the application.

26    The relevant aspects of the Tribunal’s reasons relating to risk of harm were the Tribunal’s consideration of the risk to minor children resulting from his association with an outlaw motorcycle gang (T [60]-[62) referred to earlier in these reasons, and the consideration of risk of harm to the applicant when considering international non-refoulement obligations and impediments if removed from Australia.

27    As to international non-refoulement obligations, the Tribunal said:

83.    The situation in New Zealand falls well short of establishing in objective terms the requisite degree of violence. This is so despite the occasional outbreak of violence between outlaw motorcycle gangs, or isolated acts of terrorism, [no] matter how tragic, which occur on both sides of the Tasman. Moreover, it is not possible to determine whether it would be safer to stay in Australia or be in New Zealand.

84.    In my opinion, the Applicant’s expressed concerns do not provide a ‘serious and substantive’ factual basis for engaging Australia’s international obligations, and therefore it is not necessary to consider whether the Applicant’s concerns are capable of characterisation as a non-refoulement claim.

85.    However, the question whether the risk of harm, or more precisely, the fear of harm, is relevant to any other consideration, such as the impediments he will face if removed, is considered below.

(Footnotes omitted.)

28    As to impediments if removed from Australia, the Tribunal said:

104.    In terms of impediments that the Applicant may face if removed to his home country, I refer to the circumstances surrounding the murder of ET referred to above. Clearly this is a matter that weighs heavily on the Applicant. He told the Tribunal that he was very concerned that the people who directed the killing of his friend ET would target him upon his return to New Zealand.

105.    Without in any way wishing to diminish or exaggerate the danger raised by this issue, as noted above, it is simply impossible to know whether he faces a greater danger in Australia or New Zealand, or indeed, any danger at all. His best protection is to stay clear of all gang related activities, on both sides of the Tasman.

106.    I accept that his fear of gang related violence is real and relevant to the impediments he might face. It is impossible for the Tribunal to assess the risk of harm per se; and the dilemma highlights the dangers for anyone involved in, or flirting around the edges of, organised crime. However, I think that from a psychological perspective, his fear about gang reprisals if returned to New Zealand should be accorded some weight. There is some danger that his internal belief that he will be more easily targeted in New Zealand may have a negative effect upon his psyche.

29    Last, the Tribunal considered the relative significance of each of the primary and relevant other considerations and concluded that there was not ‘another reason’ why the mandatory cancellation of the visa should be revoked (T [109]-[118]). Therefore, the delegate’s decision was affirmed (T [119]).

Grounds of review

30    On 31 August 2022 the Court made orders, by consent, granting the applicant an extension of time to make his application for judicial review to 11 June 2021 and for his then draft application to stand as his application for judicial review in the proceedings. On 23 December 2022 the Court made orders granting the applicant leave to amend his originating application in terms of an amended application dated 19 December 2022. The amended application asserted five grounds of review. Subsequently, the applicant abandoned three of those grounds and now only relies on the following two grounds referred to as ground 2A and ground 3A.

2A.    The [Tribunal’s] Decision was vitiated by a constructive failure to exercise jurisdiction, and/or a failure to consider a mandatory consideration, in that the [Tribunal] failed to separately consider ‘the effect on non-revocation on the [applicant’s] family in Australia’ as opposed to merely the effect on the applicant.

Particulars

2A.1    Section 499 read with clause 14.2[(1)](b) of Ministerial Direction 79 required the [Tribunal] to consider the ‘strength, duration and nature’ of the applicant’s ties with Australia but also to give separate consideration to ‘the effect on non-revocation on the [applicant’s] family in Australia’

2A.2    The [Tribunal’s] reasons at [87]–[92] reflect a focus on the effect of non-revocation on the applicant rather than the effect on the family members and/or a failure to give proper, genuine or realistic consideration

3A.    The [Tribunal’s] Decision was vitiated by illogicality or lack of an intelligible justification or by an inferred error in process or outcome, exposed by the [Tribunal’s] finding there was a risk of gang violence directed to the applicant so as to insubstantiate a favourable accounting of revocation as in the best interests of relevant children, but obviated that same risk so as to decline to consider whether non-revocation would engage Australia’s non-refoulement obligations and/or impediments to removal.

Particulars

3A.1    At [60] the [Tribunal] found that the applicant’s association with an outlaw motorcycle gang ‘has exposed him to risk’ as a basis to reach a neutral finding that the primary obligation at clause 13.2 of Ministerial Direction 79 ought be weighed in the applicant’s favour.

3A.2    Conversely, at [74]–[86], and in particular at [81], the [Tribunal] reasoned in substance that there was too insubstantial a risk to inform either way the ‘other’ consideration of Australia’s international non-refoulement obligations at clause 14.1 of Ministerial Direction 79.

3A.3    Further, at [105] the [Tribunal] seemed to deny, or express scepticism, that there was ‘any danger at all’ posed by gang violence in insubstantiating the consideration of impediments to removal under clause 14.5 of Ministerial Direction 79.

Applicant’s submissions

Ground 2A

31    The applicant submits that there are two different foci in para 14.2(1)(b) of Direction 79: the applicant on the one hand, and the family members on the other. The applicant submits that in para 14.2(1)(b) of Direction 79 the Tribunal was required to consider and separately address ‘the effect of non-revocation on the [applicant’s] family in Australia’, but it failed to do so and confined itself to the effect on the applicant himself.

32    Relying on Dunasemant v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 13; (2022) 292 FCR 155 at [2], [12]-[22], [24], [30]; Okoh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 84 at [52]-[67]; Downes v Minister for Home Affairs [2020] FCA 54; (2020) 81 AAR 277 at [69]-[83]; FCFY v Minister for Home Affairs (No 2) [2019] FCA 1990 at [88]-[92]; PQSM v Minister for Home Affairs [2019] FCA 1540 at [38]-[49], the applicant submits that, subject to materiality, the relevant error was jurisdictional. The applicant submits that the Tribunal failed to form the state of satisfaction required by s 501CA(4)(b)(ii) and therefore constructively failed to exercise jurisdiction. Alternatively, the Tribunal failed to consider the mandatory consideration of the representations ‘as a whole’ made pursuant to the invitation given under s 501CA(3)(b) or failed to engage with a clearly articulated submission or contention. One way or another, so the applicant submits, there was a failure to fulfil the requirements of s 501CA(4).

33    By reference to Plaintiff M1/2021 at [24] (Kiefel CJ, Keane, Gordon and Steward JJ), the applicant submits that the Tribunal was required to read, identify, understand, and evaluate his representations. In substance, the applicant submits the Tribunal failed to do so because its reasons do not reveal that it read, identified, understood and evaluated the applicant’s representations concerning the effect that non-revocation would have on his immediate family in Australia.

34    The applicant submits that there was no reasoning at all directed to the effect of non-revocation on the applicant’s immediate family in the Tribunal’s reasons (T [87]-[92]). Only para T [88] refers to the applicant’s sister, her three children, the applicant’s uncle, and ‘various’ cousins aged 18 or more. The applicant submits that there was no exploration of what would occur if the applicant were returned to New Zealand. The applicant submits that absence of exploration is indicative of a failure to give genuine consideration of the effect on the applicant’s immediate family of non-revocation. If there had been such consideration, there would have been reasoning involving speculation about the future. The Tribunal’s reasons are all confined to the present or past. Nor are the different effects which non-revocation may have had on the family members separately considered, which implies there was a single reference point, the applicant himself.

35    The applicant submits that the effect of non-revocation on his immediate family was expressly raised in his representations. The applicant relies on the ‘representations’ to which reference has been made earlier in these reasons at paras [14]-[20].

36    The applicant submits that the delegate identified and made reference to these representations in the delegate’s statement of reasons. The applicant submits, in contrast, the Tribunal failed to do so from which it may be inferred that the Tribunal failed to consider those representations.

37    As to the question of materiality, relying on Minister for Home Affairs v HSKJ [2018] FCAFC 217; (2018) 266 FCR 591 at [24], [37], the applicant submits that, while para 14.2(1)(b) was one of the ‘other’ considerations, that does not mean that it could not be important or decisive when brought to account among the other considerations. Where there is a failure to consider something, particular caution is warranted before dismissing it as immaterial. Further, the counterfactual is not properly formulated by taking the reasons and findings as they stand because those reasons are a product which incorporates a misunderstanding: Chamoun v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 66; (2020) 276 FCR 75 at [70]. Where questions of weight are involved, the Court on review is unlikely to be able to conclude one way or the other what weight might have been given to the representation had the statutory task been undertaken according to law: DQM18 v Minister for Home Affairs [2020] FCAFC 110; (2020) 278 FCR 529 at [113].

38    The applicant also submits that had the Tribunal properly applied para 14.2(1)(b) of Direction 79 it may have exercised its procedural power to invite further evidence from the applicant’s sister and uncle. That appears to be a further submission directed to the materiality and that the correct application of para 14.2(1)(b) could have resulted in a different outcome.

39    The applicant submits, in substance, that proper consideration of the applicant’s representations as to the effect of non-revocation on the applicant’s family in Australia could have resulted in a different application of the weight to be given to the ‘other considerations’ and a different outcome overall. Accordingly, the failing was material.

Ground 3A

40    The applicant submits that an inference of undisclosed error arises from the Tribunal’s irreconcilable and contradictory findings of the ‘risk’ confronting the applicant. The applicant submits that, as is well-established, unreasonableness can be an inference drawn from the facts where it is impossible to comprehend how the decision was arrived at: Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 at [76]. The applicant submits that the inference arises from the following aspects of the Tribunal’s reasoning which he contends manifests a ‘irreconcilable and contradictory finding’ about risk, as follows.

(a)    There is risk brought upon the applicant himself, which can expose the minor children (the applicant’s nieces and nephews) to risk, thus revocation was not necessarily in their best interests (T [60]).

(b)    There is little or no risk to be taken seriously for the purpose of consideration of international non-refoulement obligations relating to removal from Australia to New Zealand (T [81]-[84]).

(c)    There is possibly no risk at all when considering impediments to the applicant upon removal to New Zealand (T [105]).

These three things, so the applicant submits, cannot intelligibly cohere. It points to an error in reasoning or construction and invites an inference of jurisdictional error.

Minister’s submissions

Ground 2A

41    By reference to the plurality in Plaintiff M1/2021 the Minister submits that in determining whether there is ‘another reason’ for revoking the cancellation decision, the decision-maker is to undertake the assessment ‘by reference to the case made by the former visa holder by their representations’. However, each representation is not itself a mandatory relevant consideration. 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’. The weight to be afforded to the representations is a matter for the decision-maker. Importantly, the decision-maker is not obliged ‘to make actual findings of fact as an adjudication of all material claims made. ‘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’. In this last respect, the Minister also relies on Guclukol v Minister for Home Affairs [2020] FCAFC 148; (2020) 279 FCR 611 at [41]-[42], [49]-[50] and AXT19 v Minister for Home Affairs [2020] FCAFC 32 at [56].

42    Insofar as the applicant raises the potential for the Tribunal to have obtained further evidence in elaboration of the contents of the applicant’s sister’s and uncle’s letters, the Minister submits that there was no legal obligation to do so. Relying on Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216; (2018) 267 FCR 643 at [48] (Rares and Robertson JJ), the Minister submits it was ‘for the [former visa holder] to put before the Minister by way of representation what it was [he] wished the Minister to take into account. The Minister had no legal duty, referable to jurisdictional error, to ask for further representations from the [applicant] or to make inquiries into the representations [he] had made’.

43    The Minister submits that the Tribunal’s reasons must be read in light of the manner in which the applicant advanced his case to the Tribunal. The materials before the Tribunal contained little information from the applicant about his immediate family members in Australia and, importantly, very little detail about how he claimed his removal from Australia might affect such persons. In a letter the applicant wrote to the Minister dated 30 July 2020 it made no clear representation as to how the applicant’s removal from Australia would have any adverse effect on any particular person. The Minister identified the relevant ‘representations’ of the applicant referred to at paras [14]-[20] of these reasons and submitted that the Tribunal identified those representations and engaged with them in its reasons.

44    The Minister submits that there is no basis to infer that the Tribunal failed to undertake the task required by para 14.2(1)(b) of Direction 79. To the contrary, the Tribunal identified what it understood to be the applicant’s ‘immediate family’ in Australia (his sister and her three children in Brisbane, an uncle, and various cousins) (T [88]). The Tribunal commented on a number of these persons (T [88]-[90]). Any brevity in its reasons is readily explicable on the basis of the scant information actually provided by the applicant. It noted (T [88]) that one of the applicant’s sisters, and her children, had already returned to New Zealand. The Tribunal had already discussed the applicant’s other sister, and her children, who lived in Brisbane (T [55]-[64]), noting that the applicant lived with his sister for a short period in 2016, and that it was very unclear whether it was in the children’s best interests to have ongoing contact with the applicant.

45    Relying on WQRJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 736 at [78]; Bale v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 646 at [26], the Minister submits that the Tribunal was under no obligation to take a matter into account repetitiously where it is relevant to two or more considerations. The Tribunal referred to the applicant’s ‘brief romantic involvement’ with one person, noting that they were ‘still friends’ but the ‘potential’ for more had been put on hold. It expressly acknowledged the applicant’s evidence that she may be ‘pretty upset’ if he was returned to New Zealand (T [89]). The Tribunal also expressly referred to the applicant’s uncle and that the applicant would be ‘welcomed with open arms’ (T [90]). The Tribunal was aware of the applicant’s cousins (T [88]), and the applicant provided no other specific detail about how they might (if at all) be adversely affected by his removal.

46    The Minister submits that the appropriate inference for the Court to draw from the Tribunal’s reasons (especially T [87]-[92]) is that the Tribunal did not think there would be any significant adverse effect on his immediate family stemming from a non-revocation decision.

Ground 3A

47    The Minister submits that illogicality and unreasonableness are exacting standards. Insofar as his argument rests on an allegation of illogicality, the applicant must demonstrate ‘extreme illogicality…measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions’: e.g., ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174; (2016) 250 FCR 109 at [47] (the Court); DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; (2018) 258 FCR 175 at [30(5)] (the Court). Disagreement, even emphatic disagreement, with the Tribunal’s reasoning is insufficient to make out illogicality: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [124] (Crennan and Bell JJ). The test for legal unreasonableness is also ‘necessarily stringent’: Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541 at [11] (Kiefel CJ); Li at [108] (Gageler J).

48    The Minister submits that the Tribunal’s reasons at T [60], [81] and [105] are not irreconcilable or contradictory. These paragraphs address different points and arise in different contexts. The substance of the Ministers submissions are to the effect that the Tribunal’s reasons (T [60]) are addressing the risk to the applicant (in Australia) arising from his association with an outlaw motorcycle gang. The Tribunal’s reasons (T [81]) are addressing the risk to the applicant (in New Zealand) arising from that association. The Tribunal’s reasons (T [105]) make the observation that it is unclear if the risk to the applicant is greater in Australia (if the cancellation of the visa were revoked) or in New Zealand (if the cancellation is not revoked). Therefore, so the Minister submits, none of these paragraphs is inconsistent or irreconcilable and each is directed to a different topic.

Was there a failure to consider the applicant’s ‘representations’ concerning the effect on his immediate family?

49    A failure to comply with the express requirements of Direction 79 as to the considerations to be brought into account and the manner in which those considerations were to be weighed in deciding whether to revoke a decision to cancel a visa may involve jurisdictional error: FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 19 at [6] (and the authorities there cited). Therefore, insofar as ground 2A is concerned, there are two related questions: first, what considerations was the Tribunal required to take into account in accordance with para 14.2 of Direction 79; and, second, did the Tribunal take those considerations into account in its reasons.

50    Paragraph 14.2 of Direction 79 is in the following terms:

14.2    Strength, nature and duration of ties

(1)    The strength, nature and duration of ties to Australia. Reflecting the principles at 6.3, 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, including the effect of non-revocation on the non-citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).

(Emphasis added.)

51    The consideration described in para 14.2(1)(b) is the strength, duration and nature of any family or social links with Australian citizens etc. However, that consideration is to include ‘the effect of non-revocation on the non-citizen’s immediate family’. That is an aspect of, at least, the strength and nature of family links with Australian citizens, permanent residents or others with an indefinite right to remain in Australia. A decision-maker must take that aspect of the consideration into account ‘where relevant’. That is where the materials before a decision-maker raise the effect of non-revocation on the non-citizen’s immediate family. That is so, even if the non-citizen has not specifically raised that consideration in his or her representations: Uelese v Minister for Immigration and Border Protection [2015] HCA 15; (2015) 256 CLR 203 at [61]-[68].

52    The Tribunal was required to ‘read, identify, understand and evaluate’ the applicant’s representations. Relevantly, in the context of a decision of a delegate of the Minister, the plurality (Kiefel CJ, Keane, Gordon and Steward JJ) in Plaintiff M1/2021 explained (at [22]-[27]) a decision-maker’s function when exercising the discretion conferred under s 501CA(4) as follows.

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.

(Most footnotes omitted.)

53    The established principles to which the above passage alludes include that the 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. The question of whether there has been such engagement will frequently be a matter of impression reached in light of all the circumstances of the case bearing in mind that the onus is on the applicant to demonstrate error. Whether the reasons of the decision-maker fall on the ‘wrong side of the line’ will be a matter of inference to be drawn in particular from the manner in which the representation was advanced, and the structure, tone and content of the decision-maker’s reasons. What is required is the reality of the consideration by the decision-maker. On judicial review the Court must assess, in a qualitative way, whether the decision-maker has as matter of substance had regard to the representations made. Each case necessarily turns on its own particular facts and circumstances and the reasons must be considered by reference to those facts and construed in a practical and common sense manner: KXXH v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 111; (2022) 292 FCR 15 at [46]-[50] (and the authorities there cited).

54    The passage from Plaintiff M1/2021 cited above emphasises the importance of the representations (or, in the case of review by the Tribunal, the applicant’s case in the Tribunal) to the exercise of the discretion under s 501CA(4). ‘More broadly, the degree of consideration that is 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. … 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’. However, ‘[i]t 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’: KXXH at [52]-[53] (and the authorities there cited).

55    The Full Court in ECE21 v Minister for Home Affairs [2023] FCAFC 52 at [7]-[9] (Mortimer, Colvin and O’Sullivan JJ) provided further explanation of the obligations of the decision-maker to read, identify, understand and evaluate the representations as follows:

7    Having regard to what their Honours said in Plaintiff M1/2021, two aspects of the statutory task must be borne in mind for present purposes. The first aspect is that there is an important distinction between considering (in the sense of adverting to and understanding) the representations made by an applicant seeking the revocation of a visa cancellation under s 501CA(4) (on the one hand) and considering the same representations, in the sense of evaluating their significance in the course of making the decision (on the other hand). What was emphasised by their Honours in Plaintiff M1/2021 was the width of the discretionary power conferred by s 501CA(4). The consequence is that it is for the Minister, acting reasonably and rationally and having demonstrably identified and understood the representations being made, to determine whether a particular matter is of significance. Therefore, a reviewing Court will need to decide if a failure to refer to a particular matter in the Minister’s reasons, even a matter that was clearly articulated by the applicant or which clearly arose on the materials, may indicate that the Minister was not persuaded that it was of significance, or whether that failure is evidence that the decision-maker did not identify and understand the representations being made.

8    Hence when it was said in Plaintiff M1/2021 that ‘a decision-maker must read, identify, understand and evaluate the representations’ (at [24]), noting that this does not extend to claims that are not clearly articulated or which do not clearly arise on the materials (at [25]), reference was being made to comprehending what was being advanced by the applicant. Similarly at [27] when it was said that relevant facts or materials or substantial and clearly articulated arguments must not be ignored or overlooked. In respect of both these propositions, the reasons of a decision-maker must demonstrate this has occurred. Accordingly, approaching the matter on the basis that the Court enquires into the degree or quality of consideration in the reasoning is likely to lead to error in the form of the Court usurping the function of the Minister: at [26]. This, it seems, was the aspect of Full Court decisions of this Court, like Omar, that the High Court disagreed with.

9    The second aspect of the statutory task that it is necessary to bear in mind is that the weight to be afforded particular representations was a matter for the Minister: Plaintiff M1/2021 at [24]. That includes forming the view that the representation, or a matter arising from the representation, should be afforded no weight. Even so, the Minister must first understand the purport of the representations, facts and materials. If it is shown that the Minister proceeded without being consciously aware of the purport of the representations, facts and materials (and matters which clearly arise on the materials) and their possible significance, such that the Minister proceeded without a proper awareness and understanding of what was being put forward and therefore without a proper appreciation of the matters that might bear upon the decision to be made, then jurisdictional error may be demonstrated. On the reasoning in Plaintiff M1/2021, if the decision-maker lacks such an understanding, they will not be in a position for themselves to ‘sift’ what has been put to them, and attribute the weight they consider appropriate to various matters.

56    The Tribunal’s reasons do not make any mention of the applicant’s representations to the effect that his nephews and nieces would grow up without him as an uncle and his support, at least, in playing ‘footy’ referred to at para [16]. Likewise, the Tribunal’s reasons do not mention the applicant’s representations to the effect that his extended family would be disheartened and that he was the ‘one that keeps the family together the one that organizes [r]eunions and family outings’ or that ‘the kids will suffer the most cause [I’ve] been around since they [were] born’ referred to at para [18]. While the Tribunal may have reached the conclusion that the best interests of minor children was a neutral consideration, that did not mean that the effect on minor children as members of the applicant’s immediate family was able to be ignored for the purpose of evaluating the strength, nature and duration of the applicant’s ties to Australia.

57    While it is not necessary for the Tribunal to refer to every piece of evidence and the reasons must not be read with an eye keenly attuned to error, the matters to which no reference is made in the Tribunal’s reasons were important elements or integers of the applicant’s representations made to the Minister in response to the invitation made under s 501CA(3) of the Act. The simplicity of the language the applicant has used to make his representations does not diminish the importance or significance of them from his perspective, as a person who has lost the right to reside in Australia. Having regard to the importance or centrality of these representations, I am not able to infer from the reasons as a whole or the specific paragraphs dealing with the strength, nature and duration of the applicant’s ties to Australia that the Tribunal has, in fact, identified, understood and evaluated the applicant’s representations.

58    The applicant’s representations as to the effect on his nephews and nieces and the sister with whom he had lived and intended to live was squarely raised in his representations. Paragraph 14.2(1)(b) of Direction 79 required the Tribunal to take those representations into account. There is no direct reference, at all, in the Tribunal’s reasons to the applicant’s representations made to the Minister in respect of the s 501CA(3) invitation or to his personal circumstances form. Otherwise, the Tribunal’s reasons only footnote the transcript of the hearing, which was not included in the application book, and the letter of the applicant’s sister referred to at para [20] of these reasons. It can be inferred that the Tribunal, at least, read that documentation to identify the members of the applicant’s family, but there is no engagement in the Tribunal’s reasons with the effect of the applicant’s removal on them, in particular, the three minor children living with his sister in Brisbane.

59    The focus of the Tribunal’s consideration of the ‘best interests’ of the minor children, referred to at para [23] of these reasons, was on the potential risk of harm the applicant posed to them due to his past conduct and association with an outlaw motorcycle gang. There was no direct consideration of the effect the applicant’s removal from Australia would have on those children as members of his immediate family. The ‘best interests’ of the minor children is a separate question to the effect removal of the applicant may have on them. There is no exploration of the effect of the applicant’s removal in the Tribunal’s reasons when considering the best interests of the children (T [55]-[64]) or the applicant’s ties to Australia (T [87]-[92]). Therefore, there is nothing in the Tribunal’s reasons from which it can be inferred that the Tribunal has ‘identified, understood and evaluated’ an important integer of the applicant’s representations as a whole. Likewise, it cannot be inferred that the Tribunal has taken into account the effect that removal of the applicant from Australia would have on the minor children and their mother, which is raised in the materials that were before the Tribunal and that it was obliged to consider in accordance with para 14.2(1)(b) of Direction 79.

60    While the Tribunal’s reasons need only include findings on material questions of fact, it is difficult to see how a finding of fact made on an express representation that the Tribunal was bound to consider and take into account could not have been relevant or material to the Tribunal’s decision if it had, in fact, been identified, understood and evaluated. Therefore, the absence of any express reference to the effect of removal of the applicant from Australia on, in particular, the minor children and sister with whom he had regular contact, implies that the Tribunal overlooked that integer of the applicant’s representations and, thereby, failed to perform the statutory ‘review’ of the delegate’s decision.

Was the Tribunal’s error material?

61    Materiality is essential to the existence of jurisdictional error: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 at [45] (Bell, Gageler and Keane JJ). In order to establish that the Tribunal’s error was material, the applicant must establish that there is a realistic possibility that the Tribunal’s decision could have been different had the breach of the relevant condition not occurred: SZMTA at [45].

62    In Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 403 ALR 398 at [32], the plurality (Kiefel CJ, Keane and Gleeson JJ) explained, by reference to MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 273 CLR 506 at [38], that the materiality of a breach requires consideration of ‘the basal factual question of how the decision that was in fact made was in fact made’. Although said with regard to a failure to afford procedural fairness, the plurality also indicated that the standard of ‘reasonable conjecture’ is ‘undemanding’: Nathanson (at [33]).

63    The Tribunal’s reasons concerning its evaluation of the relative weight of the factors it was required to take into account (T [109]-[118]) are quite brief and not particularly informative of the Tribunal’s process of reasoning undertaken in that evaluation. The essence of the Tribunal’s reasoning is that its ‘overall assessment is that the two primary considerations outweigh the two ‘other’ considerations’. That is, the two primary considerations that were not neutral outweighed the two other considerations that were also not neutral. Given that the failure to consider integers of the applicant’s representations about the effect that non-revocation would have on his immediate family members in Australia could have affected the relative weight attributed to the strength, nature and duration of the applicant’s ties to Australia, it could have likewise had an effect on the overall evaluation and weighing of the factors required by Direction 79. Therefore, the Tribunal’s error meets the undemanding ‘reasonable conjecture’ test and the error was jurisdictional.

Was the reasoning of risk of harm if removed from Australia legally unreasonable?

64    The conclusions I have reached on ground 2A make it strictly unnecessary to consider ground 3A. Nonetheless, largely for the reasons the Minister identifies in his submissions, the ground should be dismissed because the Tribunal’s reasoning does not contain the error the applicant asserts.

65    The Tribunal’s consideration of the applicant’s exposure to risk when it was addressing the best interests of minor children in Australia related to the exposure of the applicant to the risk of harm in Australia (T [60]). In that context, the Tribunal was directing its attention as to whether, as a result of the company the applicant kept and his exposure to risk, it was in the best interests of minor children that he remain in Australia.

66    The Tribunal’s consideration of the applicant’s risk of harm or fear of harm when it was addressing international non-refoulement obligations related to the exposure of the applicant to the risk of harm in New Zealand (T [83]-[85]).

67    The Tribunal’s consideration of the applicant’s risk of harm or fear of harm when it was addressing impediments if removed related primarily to the exposure of the applicant to the risk of harm in New Zealand (T [104]). However, having regard to the exposure of risk of harm in Australia (T [60]), the Tribunal expressed the view that ‘it is simply impossible to know whether he faces a greater danger in Australia or New Zealand, or indeed, any danger at all’ (T [105]).

68    There was no lack of logic or irrationality in the Tribunal’s reasoning on the risk of harm to the applicant if removed from Australia. Therefore, ground 3A must be dismissed at the threshold. It is unnecessary to consider if the error were made (which it was not) if that error would have been legally unreasonable and material.

Conclusion

69    The Tribunal failed to consider an important integer of the applicant’s representations that was relevant to the Tribunal’s consideration and evaluation of the strength, nature and duration of the applicant’s ties to Australia which it was bound to take into account as a relevant ‘other consideration’ in accordance with para 14.2(1)(b) of Direction 79. That error was material and jurisdictional. Therefore, the Tribunal’s decision must be set aside and the matter remitted to it for determination according to law. I will hear the parties on the question of costs if they are not able to reach an agreement on that matter.

Associate:

Dated:    29 September 2023