Federal Court of Australia

NHWY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 1680

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The applicant pay the first respondent's costs of an incidental to the application to be fixed by a registrar in a lump sum if not agreed by the parties.

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

REASONS FOR JUDGMENT

(REVISED FROM TRANSCRIPT)

LOGAN J:

1    The applicant was born in Kenya, in a refugee camp. Exactly when the applicant was born there was uncertain. However, having addressed that subject, the Administrative Appeals Tribunal (Tribunal) (Member Bellamy) found as a fact that the applicant was born in 2001. The applicant came to be born in Kenya as a result of his father fleeing Ethiopia because, according to evidence given to the Tribunal by the applicant’s father, the Ethiopian government had accused the father of supporting the Oromo Liberation Front, detained him and beaten him. That led to the applicant’s father fleeing Ethiopia in 2000. The applicant came to Australia with his father and others in May 2015.

2    On 4 May 2021, a delegate of the respondent Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Minister) cancelled the applicant’s then visa, a class XB Subclass 200 refugee visa under s 501(3A) of the Migration Act 1958 (Cth) (the Act), as a necessary sequel to satisfaction that the applicant did not pass the character test for which that section provides. It is uncontroversial that there was, on the basis of a sentence of imprisonment imposed upon the applicant as an adult, a basis for that satisfaction. The applicant took up an invitation to make a written representation to the Minister seeking the revocation of the cancellation of his visa. On 30 November 2021, a delegate of the Minister decided not to revoke the cancellation of the applicant’s visa.

3    The applicant then sought the review on the merits of the Minister’s delegate’s decision by the Tribunal. On 22 February 2022, for reasons given in writing later on 7 March 2022, the Tribunal decided to affirm the delegate’s decision not to revoke the cancellation of the applicant’s visa. The applicant has sought the judicial review by this court of the Tribunal’s decision.

4    The hearing of the review application was consensually postponed pending the hearing and determination, by the High Court of Thornton v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 23. The High Court determined the appeal in Thornton on 14 June 2023, see Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Thornton (2023) 97 ALJR 488 (Thornton).

5    Thereafter, the judicial review application was listed for hearing. By his amended originating application, the applicant pleaded the following grounds alleging jurisdictional error:

2    The tribunal at first instance took into account irrelevant considerations.

Particulars

a.    The tribunal took into account the Applicant’s criminal history as a juvenile in circumstances where it should not have done so

3.    The tribunal at first instance failed to take into account relevant considerations.

Particulars

a.    The tribunal failed to take into account evidence of provocative conduct which preceded the assault that the applicant committed on 12 September 2020 (“the AOBH offence”), in its consideration of:

i.    The nature and seriousness of the applicant’s conduct to date; and

ii.    The risk to the Australian community should the applicant commit further offences or engage in other serious conduct; and

b.    The tribunal In considering the best interests of the children of the Applicant’s sister (“the children”), the tribunal failed to take into account the impact of the severe emotional hardship that the applicant’s sister will suffer if the applicant is removed to Ethiopia, on her capacity to care for the children.

c.    The tribunal at first instance, failed to take into account the likelihood of the Applicant’s indefinite detention, having regard to:

i.    The tribunal’s finding that the Applicant was born in Kenya in 2001; and

ii.    The uncertainty attending the Applicant’s citizenship.

4.    The Tribunal at first instance acted erroneously and/or illogically in its finding that the there is a material risk that the applicant will engage in further violent offending.

[sic – emphasis in original]

6    Ground 4 and ground 3(b) were not pressed. Ground 2 as is apparent on its face, is a ground which takes up Thornton, and entails a contention that a like outcome should occur in the present case namely, that a taking into account of juvenile criminal history should result in a conclusion that the Tribunal’s decision was affected by jurisdictional error.

7    Ground 3(c) also came not to be pressed for the applicant. It is, however, necessary to record something further as to how that came about. Initially, it was thought that some life was present in ground 3(c), as a result of orders made in the High Court earlier this month in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCATRans 72 (NZYQ). Although the High Court pronounced orders in that case, and announced, by the Chief Justice, that at least a “majority” of the justices agreed that particular sections of the Act did not authorise in the circumstances of that case, it seems, indefinite detention. The reasons for judgment for the court’s orders which required the release of NZYQ have not yet been published. As sometimes occurred in cases touching upon personal liberty, and having reached, at least by majority, a particular conclusion that entailed unlawfulness of detention, the High Court adopted the course of ordering the release of the applicant in that case, for reasons to be published later.

8    Ground 3(c) was, initially, not the subject of written submission on behalf of the applicant. Instead, as is apparent from the absence of response to that ground in the Minister’s written submissions, the Minister was of the understanding that that particular ground would not be pressed. It must be observed that it was not put to the Tribunal that that the cancellation of the applicant’s visa should be revoked, because any continued detention would be unlawful. Accordingly, there was no exploring in evidence before the Tribunal, quite what efforts, if any at that stage, had been undertaken by the Minister to arrange for the removal from Australia of the applicant as a sequel to the cancellation of his visa. Prima facie, upon the cancellation of the applicant’s visa, he became, in terms of the Act, an unlawful non-citizen, with the Minister correspondingly being subject to a statutory obligation to remove him.

9    The Tribunal did consider the subject of the applicant’s citizenship. The Tribunal did that in the context of considering whether the applicant’s removal from Australia would entail any contravention of nonrefoulment obligations. The Tribunal’s conclusion was that the applicant was at least eligible for Ethiopian citizenship by descent. Necessarily, any consideration of the merits, if any, of the ground 3(c) would be inherently fact-specific, and fact-specific to the circumstances relating to the applicant's detention and any question of whether his continued detention could not reasonably be associated with the purpose of the detention power conferred on the Minister pending removal. As I have mentioned, that subject was just not explored in evidence in relation to any practical difficulties in removal.

10    As it happened, upon an exchange with counsel, the necessary historical factual focus of the ground came to lead to a considered decision on behalf of the applicant, neither to press an application for adjournment pending publication and related assessment of the High Court’s reasons in NZYQ, and a related concession by the Minister. As to the latter, the Minister conceded, correctly, in law, in my respectful view, that the outcome of the present judicial review proceeding could not operate as res judicata in the event that, against later circumstances, the applicant chose to contest the lawfulness of his continued detention, having regard to NZYQ. Necessarily, the lawfulness of later continued detention would fall for determination by reference to the facts as they then stood.

11    I have made the observations concerning ground 3(c) because it seemed to me, in the interests of justice, that it be made overt as to why the ground was not pressed and also, correspondingly, that there had been an explicit concession fairly made by the Minister. It is necessary to remember that a judicial review proceeding is not in the nature of a roving inquiry. However attractive, at first blush, 3(c) may have come to appear in light of NZYQ, that could not alter the factual focus of the ground, which, in this instance, concerned a position as at the time of the Tribunal’s decision. Nor could it alter that the particular issue was not one which had been explored in any way in evidence before the Tribunal. Nor even could it alter that there was no evidence otherwise before the Court, because it had been telegraphed hitherto, that the ground would not be pressed concerning the circumstances relating to any endeavour to remove the applicant from Australia. The focus of the judicial review application was, instead, upon an historic decision of the Tribunal.

12    Ground 3(a) may be dealt with shortly. The making of a factual evaluation concerning the circumstances of offending conduct by the applicant as an adult on 12 September 2020 was a matter for the Tribunal. The Tribunal addressed the subject of the circumstances of the offending conduct on 12 September 2020 at:

33    On 12 September 2020 the Applicant committed a serious assault against a victim who was unknown to him. The facts of this offence were set out by the learned sentencing Magistrate in her remarks:

“The victim himself … was a young man - he was only 21 at the time, and he was trying to enter an Uber which was parked over the side of the road - Charlotte Street and Albert Street - in the morning, at 4.25 am on Saturday the 12th of September. Now, he said two unrelated people, not known to him were driving past on scooters and he called out to his friend, ‘Are they riding these scooters?’ And the victim's friend was standing approximately 15 metres away and he said it very loudly. Shortly after, you and a co-offender approached [the victim] on foot while he was attempting to enter the vehicle. So he's going away from whatever is happening. And the - one of the people that was with says - said to him, ‘Have you got a fucking problem?’ And an associate of [the victim] was attempting to hold the co-offender back. And then he's closed the door and then he's going away - he's getting out of the situation, okay.

And then while he was closing the door, you've walked past the co-offender and raised up your fist and then the victim has also raised up his fist in attempt to defend himself. You've then approached the victim and punched him in the left side of the face using a closed fist. And then he's tried to punch you using his right fist to attempt to defend himself. The punch has caused [you] to fall backwards onto the ground while the co-offender began punching him. This has caused the victim to fall to the ground while the co-offender's continued to punch the victim as he has gotten back to his feet. Once back to his feet, [you have] again approached the victim and you've punched him again - twice more, once with each fist. And the co-offender's continued to punch at the victim, and the victim's attempted to punch back. At this stage, the two attackers are yourself and your friend.

At the time, the victim's friend has again intervened, and attempted to place himself between the victim, yourself and your friend, and this stopped the punches being thrown for several seconds, before you and your other offender began punching him in the head, face and body, repeatedly. [You] and co-offender [have] been joined, then, by two other co-offenders, who began punching the victim repeatedly while he was punched back - while he was punching back at this stage, by five other men. The victim's friend and a passing taxi driver had continued to try to step in to stop the offenders from punching the victim. So other people have tried to tell you to back off, all right, but this has continued for several seconds, and the [victim] has been punched multiple times in the head and face. The fifth offender has then arrived on the scene. So at this stage, there's five blokes against one.”

34    The next remark by Her Honour states that the Applicant delivered a coward punch to the back of the victim’s head, causing him to fall face first onto a concrete wall. However, it appears that she misspoke as the prosecution statement of facts that was provided to the court states that it was a co-accused who did that. The remarks continue:

“The victim was ([sic]) then managed to back away from you several metres, while this friend has positioned himself between, at this stage, five assailants.

The victim has then been approached from behind by a sixth assailant who has coward-punched the victim in the back of the head, which caused the victim to lose his footing and fall to the ground against the wall of the Sebel Hotel. All six offenders, including you, have then begun punching and kicking the victim while he lay on the ground. During this time, one of the offenders, unknown which, has taken possession of an empty glass bottle which he has used to strike the victim in the face and head. This has caused the glass bottle to smash and the victim to lose consciousness. The six offenders, including you, have then continued to kick and punch the victim and the [offenders] have been stomping on the victim while he lies on the ground. The six offenders, including you, have then backed away from the victim and have run away, just as the police were arriving on the scene. And they’ve run away out of sight.

The victim was seen bleeding from his head and face, and was vomiting, which the Queensland Ambulance outlined was a symptom of concussion. He had excessive bruising on his face and had a bottle glass embedded in his head. He was transferred to the Royal Brisbane Women’s Hospital where he was treated for his injuries.”

35    It is revocation request, where the Applicant was asked to outline any factors that he believed helped explain his offending, he said:

“I believed that the victim said something bad about my family. I got triggered by this and lost control. I feel very sorry for what I did.”

36    In a subsequent statement, he said he had been drinking alcohol and he believed the victim had said something racist about his parents. He felt the victim should not have said anything bad about his parents as he did not know what his parents had been through, and the Applicant lost control of himself.

37    In the hearing, he said someone had said “How come this black c—t’s riding a scooter and we’re standing here”, and then he started saying something about the Applicant’s parents. The Applicant and his friends came back and said “What's your problem?” And “You've got a problem?”. Then the Applicant punched the victim and the victim punched back, the Applicant fell down then got up, his friend was beating the victim up, more friends came and joined in, the Applicant lost control of himself and they had “like good beat him up”.

38    The Applicant added:

“I was just, like, how can just a random person just come up and then say something about my parents that he doesn't know nothing about them, you know. They – he doesn’t know. If like, you know like, how – like, what they’ve been through, you know. Like, just a random person doing that. And then, that's why he got into my head, and then, from there, I lost it, you know.”

39    The Applicant said he could not recall what was said about his parents. When he was asked “It was so offensive that you beat him up but you can’t remember what it was?” He answered yes.

40    It is apparent that the Applicant’s version of what led him to attack the victim has evolved over time. There is no mention in the police report of any offensive comment having been made by the victim or of any of the attackers thinking one had been made. The Applicant claimed that he told his lawyer about having been called a “black c—t”, however it is not mentioned in his statement and he had earlier given evidence that his lawyer had read his statement to him and he was happy with it.

41    The learned sentencing Magistrate, when sentencing the Applicant, said that there may well have been some cultural context of the assault. She appeared to have been referring to a belief that verbal provocation can be met with violence rather than accepting that a racist comment was made. I do not accept that the victim said anything offensive to or about the Applicant or his parents. Rather, I find that the Applicant reacted to merely being spoken about in neutral language.

[footnote references omitted]

13    As can be seen from the concluding sentence at [41], the Tribunal’s finding was that the applicant:

… reacted to merely being spoken about in neutral language.

And that finding, in my view, was one reasonably open to the Tribunal on the material the Tribunal had before it. It is to be remembered that the applicant pleaded guilty to the offence charged. There was no rejection of that plea by the Magistrate, much less a trial concerning whether or not the offence charged was proved in light of a defence of provocation. To embark further upon a consideration of what is entailed in ground 3(a) would be, impermissibly in my view, to delve into the merits of a factual finding which under the Act, was one for the Tribunal to make in the exercise of the merits review jurisdiction consigned to it by the Act.

14    The principal issue in the proceeding is not just, as stated in ground 2, but rather, whether in light of a conceded taking into account of juvenile criminal conduct by the Tribunal, the error so entailed was material such that it was jurisdictional. Regard to the Tribunal’s reasons discloses that the Tribunal took into account particular conduct in which the applicant had engaged as a juvenile, which resulted in his being dealt with in the courts: see [22] through to and including [26] of the Tribunal’s reasons.

15    That conduct formed part of the Tribunal’s assessment of the subject of the expectations of the Australian community following from a requirement in a direction made by the Minister under s 499 of the Act to consider particular subjects as stated in the direction where these were raised on the facts.

16    In addressing this subject, the Tribunal stated the following, at [122], of its reasons:

122    Accordingly, in assessing the weight attributable to Primary Consideration 4, it is necessary to have regard to the following matters:

•    the Applicant grew up in a refugee camp after his parents fled Ethiopia;

•    he moved to Australia in 2015 when he was 14 years old. He is now 21 years old;

•    he commenced offending three years after arrival, at the age of 17;

•    the Applicant has engaged in two violent offences, one of which was extremely serious;

•    the Applicant’s offences can be categorised as including serious violent offending and an offence against a police officer in the performance of their duty;

•    there is a low, but real, risk that he will re-offend, including that he will commit further violent offences;

•    his offending, including multiple breaches of bail conditions and offensive language directed at a police officer, demonstrate a disregard for the laws and the administration of justice regulating the community that he seeks to re-enter;

•    he has contributed to the community through gainful employment; and

•    if he is removed to Ethiopia, it will adversely affect family members, particularly Ms S and her children.

17    Flowing from s 85ZR of the Crimes Act 1914 (Cth), as construed and applied in Thornton, the Minister conceded that conduct referred to in the third dot point of [122] and more particularly described in the earlier paragraphs of the Tribunal’s reasons, to which I have referred, was erroneously considered by the Tribunal.

18    That concession, entailed, in my view, a correct understanding of the law as described in Thornton. The difficult issue in the present case is not whether there was an erroneous taking into account of juvenile offending conduct, but whether it was material.

19    I should note that the applicant pressed before the Tribunal that it was not permissible to take such conduct into account. So much is apparent from written submissions made on the applicant’s behalf to the Tribunal. It is, with all due respect, the Tribunal member concerned, to be lamented that the Tribunal chose not to address whether it was permissible in all to take into account this juvenile offending conduct, notwithstanding the submission made on the applicant’s behalf. However that may be, that does not alter the position that it is presently necessary to decide whether or not the acknowledged error was material.

20    Materiality has, in modern times, and not without some controversy at ultimate appellant level, come to be regarded at ultimate appellant level as the touchstone by reference to which a particular error made by an officer of the executive, or strictly also a subordinate court in the judicial hierarchy, is jurisdictional. In earlier times, at ultimate appellant level, the prevailing view was that a proven error in the exercise of jurisdiction would not result in the quashing of the decision concerned unless a respondent were able to demonstrate that the error could have made no difference to the result such that, as a matter of discretion, relief should not be granted to an applicant: see as to this Stead v State Government Insurance Commission (1986) 161 CLR 141, at 147. That approach was frequently applied in earlier times in determining whether relief should be granted in judicial review cases.

21    The prevailing view now, at ultimate appellant level, is that an error will only be jurisdictional if material and will be material if it has deprived an applicant of:

…a realistic possibility that a decision-making process could have resulted in a different outcome.

See Nathanson v Minister for Home Affairs (2022) 96 ALJR 737 (Nathanson), at [32], Kiefel CJ and Keane and Gleeson JJ, referring to MZAPC v Minister for Immigration and Border Protection (2021) 95 ALJR 441, at [38]. See also in Nathanson to like effect Gageler J, as his Honour then was, at [45].

22    The onus of establishing that deprivation of a realistic possibility falls on an applicant, although it has been said that discharging that onus is “undemanding”: see Nathanson at [33]. All that is necessary to discharge the onus is that the result could, not would, have been different: see Nathanson at [46]. In effect, to require more would be for a court to embark impermissibly upon a form of merits review.

23    The subject of these modern authorities to which I have referred have as their root the High Court’s judgment in Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; Philip Walker SC, “Jurisdictional error: history and some recent cases” (2023) 108 AIAL 81. Very recently, Mr Philip Walker SC has offered in a learned article, ‘Jurisdictional error history and some recent cases’, in the 2023 Australian Institute Administrative Law Forum 108, a thoughtful critique of the present position. It is not, however, either necessary or appropriate to embark judicially on any such critique in an exercise of original jurisdiction only to apply the authorities to which I have referred and Thornton to the circumstances of this particular case.

24    The applicant’s position was put with commendable succinctness by Mr Thomas of counsel in his careful submissions. In essence, the submission made for the applicant was that, having regard to [122] of the Tribunal’s reasons, it was apparent that the Tribunal had engaged in a multifactorial analysis, which analysis was affected and infected by the erroneous consideration of juvenile offending conduct. That being so, so the submission went, one should not try to unscramble an egg, in effect, but rather to recognise that the result could have been different had past juvenile offending conduct not been taken into account.

25    Particular emphasis was placed on observations made by Gordon and Edelman JJ in their joint judgment in which concurrence was expressed for the jurisdictional error found in Thornton. Their Honours stated:

77    There is no bright line to be drawn to determine whether the particular error in a given case falls into one of the categories of error identified by the principal joint judgment in MZAPC v Minister for Immigration and Border Protection which necessarily result in “a decision exceeding the limits of decision-making authority without any additional threshold [of materiality] needing to be met” by an applicant. The nature of the error has to be worked out in each case in the context of a particular decision under a particular statute; that is, a determination of whether the decision could have been different had the error not occurred “cannot be answered without determining the basal factual question of how the decision that was in fact made was in fact made”.

78    The error in this case was “relevant to the actual course of the decision-making”. It was not suggested that it was an error that was, without any additional threshold, necessarily material. In this case, the course of the Minister's decision-making reveals that his taking into account of the findings of guilt made against Mr Thornton as a child, without convictions being recorded, infected the whole of his reasoning in coming to the conclusion that there was not “another reason” why the cancellation decision should be revoked.

79    First, it is to be emphasised that, when read as a whole, the Minister’s reasons indicate that he gave primacy to his conclusion that Mr Thornton represents a risk of harm to the Australian community. So much can be seen from the Minister’s statements in the concluding sections of his reasons. Second, the Minister’s reasons, being “historical facts” as to what occurred in the making of his decision, show that his repeated references to Mr Thornton's childhood offending were bound up in his assessment of Mr Thornton's offending generally. Read fairly and as a whole, in circumstances where in coming to his conclusion the Minister expressly gave primacy to Mr Thornton representing a risk of harm to the Australian community, those references cannot be disentangled; they infected his reasoning to that conclusion.

80    The reasonable conjecture that the decision could have been different had the error not occurred cannot, on the face of the Minister’s reasons, be displaced. The error was jurisdictional.

[footnote references omitted]

26    It was put on behalf of the applicant in the present case that this was also one of those cases that did not admit of any right line. The error was such that it was not possible to disentangle it, but rather one which infected the Tribunal’s reasoning to its ultimate conclusion to affirm the decision under review.

27    The Minister made, via Mr Psaltis of counsel, a sophisticated response to this submission. It was put that when one read the Tribunal’s reasons as a whole, the juvenile offending conduct, although impermissibly considered, operated only at the margin of the reason why the Tribunal affirmed the decision under review. The jurisprudential foundation for that submission took as a starting point these observations made by Bell, Gageler and Keane JJ in Minister for Immigration v SZMTA (2019) 264 CLR 421 (SZMTA), at [48] and [49]. It was put that, objectively, the juvenile offending conduct was of “marginal significance”.

28    Part of that submission entailed analysing the significance of the third last dot point in [122]. If read in isolation, that reference might be thought to embrace juvenile offending conduct constituted by a failure to attend in breach of a bail undertaking; however, when one reads all of the Tribunal’s reasons, it becomes apparent from [31] and [32], as well as [43] to [47], that the conduct there described refers to breaches of bail conditions as an adult and also to offensive language as an adult offender. The Tribunal states in these paragraphs:

31    On 8 August 2020, again, while on bail, the Applicant verbally abused a police officer. According to him, he was with a group of friends at the park at night. The police told them to move on. They had moved on and were leaving the park when one of the police officers said to “Git! Git on home!” He thought it sounded very disrespectful. One of his friends yelled out “What can't black people even have a BBQ?” The Applicant called the police officer a “dog” and a “f—king dog”. He was charged with public nuisance.

32    The Applicant said he thought he and his friends were being treated unfairly. He claimed that what he meant by “dog” was someone who blocks a person from doing what they want to do, that he was not trying to threaten the officer and he was not angry or aggressive. He did not explain why he inserted the word “f—cking” in front of “dog” if he was not angry or aggressive. To call a police officer a “dog” followed by “f—king dog” is inherently aggressive. Accordingly, the Applicant was verbally aggressive, and offensive, on that occasion.

…

43    Between October 2020 and 7 February 2021, the Applicant breached his bail conditions on seven occasions by failing to adhere to his curfew. He appeared before the courts in four separate sentencing episodes in relation to five of these offences, receiving fines and a suspended 14-day term of imprisonment which was imposed on 9 February 2021.

44    On one occasion the Applicant was staying at the home of a family friend, Fatuma, whom he referred to as an aunt although it does not appear that she is his biological aunt. He claimed he did not realise he was breaching his bail because he thought if he was with family then the police would not breach him. I do not accept this explanation. His bail conditions required him to live with Ms S.

45    Another breach arose when he was intercepted by the police travelling to a Christmas party just after midnight. He said the other breaches related to him being late home from soccer. As though to mitigate his conduct, he claimed that there many times when the police came when he was at home.

46    In the hearing, the Applicant conceded that he had not taken his bail conditions seriously and he had thought he would just get a warning or a fine. He was asked if the fact that he had accumulated $900 worth of fines in less than a month for breaching his bail conditions suggested to him that breaching bail was a serious offence. He replied that it did not and he indicated that it was just a fine that he could pay off through the State Penalties Enforcement Registry (“SPER”). What that really means is that he would not pay the fines, but instead refer them to SPER to recover in instalments.

47    The Applicant agreed that, at the time, he thought the police kept coming to check on him because they kept finding that he was not there. He said, Ms S used to tell him to stay at home and not to go to soccer, but he used to tell her not to worry because the police would not come.

[footnote references omitted]

29    Yet, further, reading the Tribunal’s reasons as a whole, it becomes apparent from [123] that the overwhelming concern of the Tribunal lay in two offences of assault committed by the applicant as an adult. The Tribunal there states:

123    It was contended on the Applicant’s behalf that, given his compromised childhood, the Australian community would have some sympathy for him, and that he would be entitled to a greater degree of tolerance. The Australian Government, on behalf of the Australian community, granted the Applicant’s family a humanitarian visa because of their disadvantaged circumstances. Having the privilege of that visa, the Applicant punched a member of the Australian community and viciously attacked another. In doing so, he seriously breached the trust of the Australian community. Further there is an unacceptable risk that he will re-offend in a similar manner. The Direction does not expressly provide for greater tolerance to be afforded on the basis of disadvantage. In the present case, I do not see a legitimate reason for allowing greater tolerance to the Applicant on account of his disadvantaged background.

30    Ultimately, as is apparent from [177] of the Tribunal’s reasons, it was these assaults which informed the Tribunal’s reasoning that, on balance, the applicant had not made out a case that there was another reason why cancellation of his visa should be revoked. The Tribunal stated:

177    Any real risk of repeated violent offending of the kind previously engaged in is unacceptable, and there is a real risk in this case. While the combination of Primary Consideration 3 and Other Considerations (b) and (d) weigh strongly in favour of revocation, they are not sufficiently compelling to outweigh Primary Consideration 1. Primary Consideration 4 adds further reasons not to revoke the cancellation of the Applicant’s visa. Consequently, there is not another reason to revoke the cancellation of the Applicant’s visa.

31    It must follow, in my view, from the succession of cases concerning jurisdictional error on and from Hossain that not every error present in the making of an administrative decision is jurisdictional. Part and parcel of this as recognised in Thornton and flowing from SZMTA is that there must be cases where an error is of marginal significance such that it is not jurisdictional. Thornton, in my view, is but an example in the final analysis of a reasoning process where it was not possible to disentangle the erroneously considered from the permissibly considered.

32    In this case, the Tribunal’s reasoning process was based upon two offences of assault, one reasonably described as extremely serious, together with other particular conduct as an adult. Objectively, in my view, the juvenile offending conduct was truly of marginal significance. It is not, in my view, possible to read the Tribunal’s reasons otherwise if one reads them as a whole.

33    That, of course, has a clarity in hindsight in terms of outcome that I will accept may have not been suggested itself in prospect to those advising the applicant. I have no doubt at all that the applicant’s case was put and well put at its highest. It is just that, for the reasons which I have given, the conclusion which I have reached is that the applicant has not proved, even to the undemanding standard on the authorities, that the error concerned was material. It necessarily follows from the foregoing that the application must be dismissed.

34    It would be a failure to give credit where credit is due were I not to acknowledge the assistance to the administration of justice provided by Mr Thomas of counsel and his instructing solicitor in appearing pro bono for the applicant. That is not, of course, to diminish the assistance provided to the Court by Mr Psaltis on behalf of the Minister, only to recognise that the applicant, notwithstanding the outcome, has been well served by his counsel and solicitor.

Associate:    

Dated:    12 February 2024