Federal Court of Australia

BWS22 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 387

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The Appellant pay the First Respondent’s costs of the appeal, to be taxed if not agreed.

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

REASONS FOR JUDGMENT

BUTTON J:

1    The appellant appeals against the orders of the primary judge dated 21 July 2023 dismissing his application for judicial review of a decision of the second respondent (the Tribunal), affirming a decision of a delegate of the first respondent (the Minister) to cancel the appellant’s Global Special Humanitarian (subclass 202) visa (GSH visa) pursuant to s 116(1AA) of the Migration Act 1958 (Cth) (the Act).

BACKGROUND

2    The appellant arrived in Australia on 16 March 2009 on a tourist visa. The appellant was accompanied by his two younger half-brothers. Upon his arrival, the appellant was interviewed by immigration officials at Melbourne Airport. Those officers determined that he was not a genuine tourist and cancelled his visa. The appellant was taken into immigration detention.

3    On 18 March 2009, the appellant applied for a Protection visa. That application was rejected on 1 May 2009. On 11 October 2010, following Ministerial intervention, the appellant was granted a GSH visa permitting him to reside permanently in Australia.

4    On 29 February 2019, the Minister issued a Notice of Intention to Consider Cancellation of the GSH visa (NOICC). The NOICC stated that the Minister proposed to cancel the visa on the basis that the appellant “did not comply with section(s) 116 of the Migration Act 1958” and invited the appellant to comment on the ground for cancellation, and to provide reasons why his visa should not be cancelled.

5    Section 116 of the Act is titled “Power to cancel”. Subsection 116(1AA) relevantly provides that “the Minister may cancel a visa if he or she is not satisfied as to the visa holder’s identity”. The Act does not contain any definition of the term “identity”.

6    The NOICC set out “particulars of the ground for cancellation” which included a detailed account of the occasions on which the appellant had provided information about his identity and identified the apparent inconsistencies in the identity information provided.

7    The appellant responded to the NOICC by letter dated 29 March 2019 and provided a letter in support from a treating psychiatrist dated 3 April 2019.

8    On 18 April 2019, a delegate of the Minister cancelled the appellant’s GSH visa pursuant to s 116(1AA) of the Act, on the basis that the delegate could not be satisfied of the appellant’s identity.

9    On 25 April 2019, the appellant applied to the Tribunal for review of the cancellation decision. The issue before the Tribunal that is relevant to this appeal, was whether there were grounds for cancellation pursuant to s 116(1AA) of the Act and, if so, whether the appellant’s visa should be cancelled. On 13 May 2022, the Tribunal affirmed the decision to cancel the appellant’s GSH visa and provided written reasons (T).

10    On 3 February 2023, the appellant filed an amended application in the Federal Circuit and Family Court of Australia (Division 2) for judicial review of the Tribunal’s decision. On 21 July 2023, the primary judge dismissed the appellant’s application: BWS22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 635 (PJ).

GROUNDS OF APPEAL

11    By his Notice of Appeal dated 8 August 2023, the appellant raised the following three grounds of appeal:

1.    The primary judge erred in her construction of subs 116(1AA) of the Migration Act 1958 (Cth) by finding that ‘identity’ meant ‘true identity’, and instead ought to have found that the term had a meaning informed by the context of the whole of that subsection, such that:

a.    the correct inquiry for the Tribunal was to form a state of satisfaction about the sufficiency of proof of identity in the context of a prospective cancellation of the visa in issue, and not just proof of identity in the abstract (J [57]-[64]); and/or

b.    the Tribunal would not have discounted DNA evidence as probative only of a ‘familial association’ and not also ‘identity’, even if the evidence was not ‘conclusive’ (J [70]-[71]).

2.    The primary judge erred in construing subdiv. E of Div 3 of Pt 2 of the Act as not requiring procedural fairness to be offered to the Appellant’s half-brother, and instead ought to have found that where another person might have their visa cancelled pursuant to subs 140(1) (and in contrast to subs 140(2)), that person was also required to be afforded procedural fairness (J [107]-[136]).

3.    The primary judge erred in failing to find that the Tribunal’s rejection of the mandatory legal consequences of its decision as mere ‘intended legislative consequences’ was a constructive failure to consider them (J [173]-[175]).

12    I consider each ground of appeal below.

Ground 1: the meaning of “identity”

13    Ground 1 concerns the proper construction of the term “identity” for the purposes of s 116(1AA) of the Act. This ground of appeal comprised two distinct arguments, both said to expose errors of law stemming from the misinterpretation of the word “identity”.

14    First, the appellant contended that the primary judge ought to have found that the Tribunal had erred in forming a state of satisfaction as to the proof of the appellant’s identity “in the abstract”, rather than in the context of the purpose for which the question was being asked (namely, whether there was sufficient proof of the appellant’s identity to give rise to grounds for cancellation of his GSH visa).

15    Secondly, the appellant contended that the primary judge erred in failing to find that the Tribunal wrongly discounted the probative value of the DNA evidence confirming that the two individuals were themselves full brothers and that both were half-brothers of the appellant.

16    I will deal with the DNA evidence first.

DNA evidence

17    The primary judge considered the Tribunal’s analysis of the DNA evidence, observing (at PJ [70]–[71]) that:

[70]    At paragraph [73] of its decision record, the Tribunal went on to say that:

73.     Although during the hearing, the applicant accepted the provision of inconsistent information, he contended that the DNA test proves his identity. The Tribunal discussed with the applicant the DNA test results and indicated that the results demonstrate that he has two half-brothers and that the half-brothers are full siblings. The Tribunal indicated that it did not consider the DNA test results to be conclusive evidence of the applicant’s identity – the results show familial association. … (emphasis in original)

[71]    The Tribunal did not err in its consideration of the DNA evidence. In its reasons for its decision, the Tribunal did not say that the DNA evidence was not relevant to determining the applicant’s identity. Rather, it simply identified, correctly in my view, the limitation of that evidence.

18    The appellant contended that the Tribunal wrongly restricted the relevance of the DNA evidence to establishing “familial association”, when it was also probative of “identity”. This was said to involve reviewable error as, even accepting that DNA evidence may not be conclusive on the question of identity, it was capable of contributing to the establishing of a person’s identity. The appellant contended that the primary judge erred in failing to find that the Tribunal erred, as alleged.

19    The Minister submitted that the Tribunal’s view that the evidence was not conclusive of the appellant’s identity must be read in the context of the appellant’s argument that the DNA evidence proved his identity. The Minister contended that the Tribunal did not find that the DNA evidence was not probative of the appellant’s identity, but rather identified the limitations of the evidence, finding that it was probative of the appellant’s familial connections and was therefore only partially relevant to the appellant’s identity. The Minister submitted that the primary judge was correct to conclude (at PJ [79]) that the Tribunal’s approach to the DNA evidence did not reflect any error of law.

Consideration

20    The appellant’s argument misconstrues the Tribunal’s reasons. As is clear from the first sentence of T [73], the Tribunal was addressing the appellant’s contention that the DNA evidence “proves his identity” (emphasis in original). The Tribunal rejected that contention on the basis that the DNA evidence revealed he had two half-brothers, but was not “conclusive evidence of the [appellant’s] identity” (T [73]). The Tribunal’s reference to the evidence not being conclusive on the question of identity was responsive to the submission put by the appellant to the Tribunal that it was conclusive. There was never any question that the appellant had two half-brothers (being the point that the DNA evidence did establish). The appellant never explained how the DNA evidence could have been taken into account by the Tribunal in a way that went beyond the accepted fact that the appellant had two half-brothers.

21    There is no error in the Tribunal’s approach to the DNA evidence.

The “true identity” issue

22    The Tribunal’s summary of the different names, dates and places of birth used by the appellant from time to time was set out in its reasons (T [50]ff). In the published version of its reasons, the Tribunal replaced any references to specific information capable of being used to identify the appellant, or other persons referred to, with square brackets and generic information (eg, [DOB] and [Ms D]). Adopting the anonymised version of the Tribunal’s reasons, it said as follows:

50.    The applicant entered Australia [in] March 2009 claiming to be [AB] ([DOB 1]) born in Nigeria; in the 48R visa application, he indicated that his full name is [AB], that he has also been known by [C], and that his date of birth is [Date 1]. He declared that his wife as [Ms D] ([DOB]) and his three children are [Mr E] ([DOB]), [Mr F] ([DOB]) and [Mr G] ([DOB]).

51.    The applicant arrived at Melbourne Airport [in] March 2009 on the Nigerian passport issued in the name [AB] ([DOB 1]). He was interviewed and he now claimed to be [BC] ([DOB 2]) and that he used his brother’s passport to travel to Australia. He was accompanied by [Mr G] ([DOB]) and [Mr F] ([DOB]). In the 48R application, the applicant claimed they were his children but during the interview, he said that they were his half-brothers and not his children as he had originally claimed.

52.    In the Protection visa application lodged on 18 March 2009, the applicant claimed to be [BC] ([DOB 2]), and that [Mr J] ([DOB]) and [Mr G] ([DOB]) are his half-brothers. He claimed that his brother [AB] ([DOB 1]) had organised the passports for him and his half-brothers to facilitate the grant of the Tourist (Subclass 676) visa. During the RRT hearing on 22 June 2009, the applicant claimed that in about 1960, his mother [Ms L] had adopted [AB] after the death of [A]’s mother.

53.    On 30 April 2010, during the IVT interview, the applicant indicated that he had provided incorrect information to the Department in relation to his identity since his initial arrival at Melbourne Airport [in] March 2009. He indicated that the three passports he and his half-brothers used to enter Australia were bogus. This included the Nigerian passport, document [number 1], in the name [AB] ([DOB 1]). In the interview, the applicant initially claimed that the passport, document [number 1], belonged to him and had his photo but the name and date of birth were that of his brother, [AB] ([DOB 1]), which he used for travel to [Country 2] prior to his travel to Australia. However, the applicant later claimed that he and [AB] ([DOB 1]) are the same person. The applicant provided to an officer from the IVT another Nigerian passport, document [number 2], for [BC] ([DOB 2]).

54.    The outcome of fingerprint checks resulted in a positive match between the applicant’s fingerprints taken by the Department, [Country 2] and [Country 4]. The applicant’s fingerprints in [Country 2] matched the recorded identity of [LM] ([DOB 4]), alias [BAC], who was recorded as [a Country 3] national. [LM] was convicted in [Country 2] for driving a vehicle while uninsured and driving otherwise than in accordance with a licence. [LM] was also convicted of obtaining pecuniary advantage by deception and sentenced to eight months’ imprisonment. [LM] told the [Country 2] authorities that he had obtained employment with a [Workplace] in [Suburb] using a photograph substituted Nigerian passport in the name of [ABC] ([DOB 1]), document [number 3]. [LM]’s application for asylum was refused and he was removed from [Country 2] [in] July 2007.

55.    In [Country 4], fingerprint checks matched the recorded identity of [AB] ([DOB 1]). The checks revealed that there is an outstanding warrant for the applicant relating to larceny, and although the applicant does not have a criminal conviction, he is wanted by the [Country 4] authorities to stand trial for the outstanding larceny charges.

56.    The applicant lodged an application for an Australian Citizenship by conferral and in support, he provided a [Country 2] Criminality Certificate issued on 10 February 2015. The certificate stated [ABC] ([DOB 1]) was the holder of a Nigerian passport, document [number 1]. The applicant was interviewed in relation to his Australian Citizenship application by an officer of the Department’s Identity Unit and an officer from the Citizenship section. During this interview, the applicant was presented with scanned copies of two Nigerian driver’s licences, namely, Nigerian driver’s licence [number 1], in the name of [CB] ([DOB 3]), which he provided when he arrived at Melbourne Airport, and the Nigerian driver’s licence [number 2], in the name of [CB – different spelling of B] ([DOB 2]), which he provided in support of his Protection visa application. During that interview, the applicant stated that he had lost his licence but was unable to explain how he was able to provide the scanned copy of the lost licence. Furthermore, the applicant denied knowing [Ms D] or ever being married to anyone by that name. He was questioned about the Nigerian passport and birth certificate issued in the name of [Ms D] ([DOB]) and the fraudulent birth certificates indicating his half-brothers were his children with [Ms D] ([DOB]). He said that he never married [Ms D], that she did not exist and that the documents had been acquired by an agent in Nigeria for the applicant.

57.    The applicant was presented with a copy of the Nigerian Birth Certificate he provided in support of the Tourist visa in [Country 1] on 05 February 2009, in the name [AB] ([DOB 1]). The applicant acknowledged that the birth certificate contained fraudulent information and did not reflect his true identity. He claimed that his true date of birth is [Date 2]. When asked why the Department should accept that his date of birth is [Date 2], the applicant indicated that he used the other date of birth “because of the situation back home in Nigeria and to protect myself and so that I would not be easily identifiable.” The applicant indicated that [AB] ([DOB 1]) did not exist and that he has no other siblings aside from his half-brothers.

58.    In the citizenship application, the applicant named two female parents, [Ms O] ([DOB]) and [Ms L] ([DOB]), but no male parent, indicating that he has named three mothers, [Ms I], [Ms O] and [Ms L], and two fathers, both named [Mr H], in documents and applications provided to the Department.

59.    At the identity interview, the applicant was presented with information that was received by the Department from a reliable third party indicating that his mother, [Ms L], was alive in 2017 and his half-brothers have been in contact with this person, which indicates that the death certificate and the consequent Protection visa claims were fraudulent. In response, he claimed he did not know anything about his half-brothers contacting a person named [Ms L].

60.    The Tribunal is satisfied on the evidence that the applicant has been known in Australia, [Country 2] and [Country 4] under different names and identities. He has provided documents, some of which, by his own account, were not genuine or contained incorrect information.

61.    The applicant’s visa was not cancelled on the basis of the provision of incorrect information or bogus documents but on identity issues. In his response to the NOICC, the applicant conceded that the information he provided is confusing, internally inconsistent, and creates a degree of uncertainty about his true identity. He recognised that the Department’s lack of clarity about his identity was “initially generated by myself, as my two younger half-brothers…and I fled to Australia from Nigeria using identity documents that were not our own”. He claimed that due to their haste to leave Nigeria and as a result of his desire “to conceal our real identities” from those in Nigeria who might cause them harm, he travelled on a passport issued in the name of [AB], [DOB 1]. He conceded that the passport was not his and that his true identity is [BAC].

62.    The applicant claimed that during the Citizenship interview held on 21 June 2017, he was very nervous and did not represent himself well. He claimed that despite making foolish errors and misleading the Department in 2009, he has been consistent since first arriving in Australia about his true identity.

    (Emphasis in original.)

23    As the Tribunal noted, the appellant accepted that the information he had provided was confusing, internally inconsistent and created a degree of uncertainty about his “true identity” (T [61]). It is clear from the Tribunal’s reasons that the appellant had claimed several different names, dates and places of birth at different times and had provided differing accounts of a number of other matters that were relevant to his identity.

24    After referring to some psychological evidence concerning the appellant’s post-traumatic stress disorder, the Tribunal turned to evaluate the appellant’s explanation for his provision of inconsistent evidence about having to flee Nigeria. The Tribunal made adverse credibility findings and stated (T [67]) that “[t]he inconsistent information means that the Tribunal cannot accept the applicant’s current claim of his true identity” (emphasis in original).

25    The Tribunal went on (T [70]) to refer to specific documents that the appellant relied on as they all used the same name. Without seeking to be exhaustive, those records included academic records from the University of London, the transcript of a London court hearing, a letter of offer from Charles Darwin University, student cards, a GP mental health plan and an ACT identity card.

26    After addressing the DNA evidence (referred to above), the Tribunal then set out its conclusions (T [75]–[76], [78]) as follows (again, adopting the anonymised version of the Tribunal’s reasons):

75.    The Tribunal has carefully considered the material cumulatively, including all the documents provided by the applicant. Given the applicant’s own admissions that a number of the documents he had provided did not contain truthful information, and given the credibility concerns, the Tribunal does not accept that the documents provided by the applicant have probative value to resolve the identity issue. The Tribunal does not consider academic records, transcripts or certificates or student cards to be reliable identification documentation. For example, it is difficult to see how the Diploma of [Subject 5] from [University 6] in the name of [BAC], dated 1 October 2005, could be probative in resolving identity, when there is also information from [Country 2], namely the applicant’s fingerprints in [Country 2], which matched the recorded identity of [LM] ([DOB 4]), who was recorded as [a Country 3] national. [LM] claimed that he had obtained employment with a [Workplace] in [Suburb] using a photograph substituted Nigerian passport in the name of [ABC] ([DOB 1]), document [number 3]. [LM] was removed from [Country 2] [in] July 2007. In [Country 4], he claimed to be [AB] ([DOB 1]) born in Nigeria. The documents before the Tribunal contain significant inconsistent information and do not resolve the identity issue.

76.    The Tribunal has carefully considered the applicant’s response to the Notice, submissions, and documents. On balance, the Tribunal finds that the applicant has operated under a number of aliases and has used a range of inconsistent identity documentation in Australia, [Country 2], and [Country 4]. He has conceded that he has intentionally provided incorrect information and misrepresented his identity to facilitate favourable migration outcomes. For example, the applicant claimed, “When I applied for the [Tourist] visa I had to make my brothers seem like my kids because if I claimed that they were my brothers there was no way we were going to get a visa here…”. It is a very serious claim to make that his half-brothers are his sons. His reasons are not persuasive or convincing.

…

78.    In light of the above, and given the inconsistent names and personal details, the Tribunal is not satisfied as to the applicant’s identity. Therefore, the Tribunal concludes that there are grounds to cancel the Global Special Humanitarian (Subclass 202) visa under s 116(1AA) of the Act. As that ground does not require mandatory cancellation under s 116(3), the Tribunal must proceed to consider whether the visa should be cancelled.

27    It should be noted that the Tribunal expressed its conclusion (T [78]), stating that it was not satisfied as to the appellant’s “identity” and that it therefore concluded that there were grounds to cancel the GSH visa under s 116(1AA) of the Act. The Tribunal did not express its conclusion on the statutory question by reference to “true identity”.

The parties’ arguments

28    The appellant’s central argument was that the concept of “identity” was ambulatory. He submitted that it was “self-evident” that “establishing a person’s ‘identity’ for the purpose of issuing a library card is a very different task to establishing ‘identity’ for the purpose of opening a bank account”. Pursuing this submission, the appellant contended that:

The level of rigour applied, or ‘assurance’ needed, in establishing a person’s identity for the purpose of deciding whether to grant (and not later cancel) a temporary visa will be different to a permanent visa—and that is a consequence of the statute. It is a consequence of giving ‘identity’ the correct statutory construction.

The required state of satisfaction about ‘identity’ must vary depending on the visa subclass, too.

29    On the appellant’s argument, the statutory concept of “identity” is responsive to the particular context in which the question arises, including matters such as the nature of the visa, how long it was held and the background factual circumstances (giving, as an example, Germans migrating using assumed identities due to fears of discrimination). The appellant contended that, because the cancellation of a specific visa held by a particular person was in issue, the statutory concept of “identity” required that the use of an identity by the person be examined.

30    Turning then to more conventional ground, the appellant’s submission was that the proper interpretation of “identity” must begin and end with the text. The appellant submitted that “[t]here is simply no warrant from the text of the statute, including statutory context, to interpret ‘identity’ as meaning ‘true identity’, divorced from the circumstances in which the power might be available to be exercised on any particular occasion”.

31    On the appellant’s argument, it should have been enough that the appellant had used the same identity consistently for over a decade, and that the Tribunal “erred in giving the term ‘identity’ a construction that required proof of ‘true identity’, to some kind of ‘conclusive’ level, and wrongly excluding the possibility that consistent use of an identity in Australia since 2010 could … meet the statutory test”.

32    The appellant relied on what the Chief Justice of this Court said about the concept of identity in BQG21 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 865 (BQG21) at [32]:

Ultimately, the concept of “identity” is about an assessment of whether the repository of the power to confer citizenship is satisfied the human being who is the individual applying for citizenship is the person they say they are, with the relevant background to their citizenship application they rely on, and not a different human being with a different background which may affect their citizenship application. The historic use in documents of different names that appear to all be attributed to an applicant may clearly be relevant to this assessment. But use (or ascription, even without knowledge, to a person) of a different name may in a given factual circumstance say nothing about identity. Take for example the common situation of a person changing their name when they marry. There may not be documentary proof of this name change, for a variety of reasons, in any given circumstances. But the name change may not affect the proposition that the person has a single identity, rather than being two different human beings, or a human being with an entirely different background to the one they rely upon in their citizenship application. The Minister’s submissions acknowledged this to some extent.

33    The Chief Justice considered that the factual question of the use of different names should not be conflated with the question of identity, observing (BQG21 at [45]):

In the present case, the Tribunal’s fact finding is internally inconsistent on material issues. It is irrational to accept as accurate all the applicant’s Iraqi documentation, and supporting testimony, and then to find in substance that he should not be believed because of the existence of other documentation for which there could well have been explanations wholly consistent with the applicant’s narrative, but not explored at all by the Tribunal. It is irrational to conflate the factual question of the use of different names with the concept of identity. It is irrational for the Tribunal to have accepted all the documentation put forward by the applicant, and the supporting testimony, and impliedly accept the validity of the grant of the protection visa to him on that basis, and then find itself not satisfied of his identity. It is irrational for the Tribunal to find the applicant was the same person as A2 and then not accept his identity. All these irrationalities were central to the reasoning of the Tribunal on s 24(3).

34    The Minister submitted that the central question for determination under this ground, was whether the state of satisfaction reached by the Tribunal as to the appellant’s identity was “reasonably and rationally formed” based on the evidence before it.

35    As against the appellant’s submission that the Tribunal had applied an impermissible standard in forming a view as to the appellant’s “true identity”, the Minister submitted that the appellant has mischaracterised the various references to “true identity” in the Tribunal’s reasons.

36    The Minister submitted that, on a fair reading of the Tribunal’s reasons, the expression “true identity” was used as a comparator between the various fictitious or false identities provided by the appellant against the identity that the appellant claimed to be his “true identity” before the Tribunal. The Minister drew the Court’s attention to various examples in the Tribunal’s reasons said to illustrate this point, including the Tribunal’s observation (T [57]) that the appellant “acknowledged that the birth certificate contained fraudulent information and did not reflect his true identity”, and the Tribunal’s reference (T [62]) to the appellant’s claim that since his arrival in Australia in December 2009 he “has been consistent … about his true identity”. The Minister then pointed to the Tribunal’s disposition of the issue, and submitted that, critically, the Tribunal’s ultimate finding (T [78]) refers to not having been satisfied “as to the applicant’s identity” (emphasis added).

37    On the Minister’s argument, what is required by s 116(1AA) is satisfaction as to the applicant’s identity and, in those circumstances, it was proper for the primary judge to find that it is not sufficient for the purposes of s 116(1AA), for the appellant to establish that he has consistently identified himself as a particular person for a particular a period of a time (PJ [57]).

Consideration

38    Subsection 116(1) of the Act provides that, subject to subs (2) and (3), “the Minister may cancel a visa if he or she is satisfied” of any one of the matters specified in subs (a)–(g). Subsection 116(1AA) provides a further, and independent, discretionary cancellation power, in the following terms:

(1AA)     Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is not satisfied as to the visa holder’s identity.

39    The term “identity” is not defined in the Act. It is, however, used in various provisions. Some provisions use the term “identity” in a way that refers to certain social or emotional characteristics of a person. For example, in stating when a person will not have a well-founded fear of persecution, ss 5J(a) and (c)(vi) exclude modifications to behaviour that “conflict with a characteristic that is fundamental to the person’s identity or conscience” or require a person to alter or conceal his or her “sexual orientation or gender identity”. However, other provisions (including s 116(1AA)) do not use the term “identity” in that wider sense. Rather, those provisions use the term to refer (at least) to a concept that distinguishes, in an ongoing manner, one unique individual from another. At least one facet of the difference may be illustrated by considering that many persons may have the same characteristics that would make modifying their behaviour something contrary to their “identity” for the purposes of s 5J, whereas other uses of the term “identity” in the Act point to matters that are specific to a unique individual and permit that individual to be distinguished from all others.

40    While the concept of “identity” may have variable meanings when used in different contexts, as it is used in s 116(1AA), it must have a stable meaning. Parliament cannot have intended that, in empowering the Minister to cancel a visa if not satisfied as to the visa holder’s “identity”, the meaning of the word “identity” would be ambulatory so that it means something different depending on the type of visa in question, or the visa holder’s personal history. The appellant’s submission that the meaning of the term “identity”, as it is used in s 116(1AA), is variable, must be rejected.

41    Rather, the appellant’s submissions about (as he put it) the “intensity of proof” required are really concerned with what ought to “satisfy” the Minister of the visa holder’s identity. However, the Act does not specify what ought to be required in order for the Minister to be “satisfied”. Nor did the appellant advance an argument that it was irrational (and productive of jurisdictional error) for the Tribunal not to be “satisfied” of the appellant’s identity given his consistent use for a period of time of one of the name and birthdate combinations he has used over time.

42    The appellant framed his contentions on appeal on the basis that the Tribunal erred in its construction of the term identity. In his written submissions, the appellant summarised his argument on this limb of ground 1, contending that: “[t]he Tribunal erred in giving the term ‘identity’ a construction that required proof of ‘true identity’, to some kind of ‘conclusive’ level, and wrongly excluding the possibility that consistent use of an identity in Australia since 2010 could not [sic] meet the statutory test” (emphasis added).

43    As already noted, the appellant did not advance a case on the basis that the Tribunal’s conclusion on identity involved irrationality of the kind that the Chief Justice addressed in BQG21. In that case, the central point was that it was irrational for the Tribunal to have accepted the accuracy of certain Iraqi documentation, yet still to have reached an adverse conclusion on identity. No case of that kind was advanced by the appellant. Moreover, in the present case (and unlike the position in BQG21), the Tribunal rejected the evidence of academic records, academic transcripts or certificates or student cards as having probative value (T [75]). The appellant did not contend that it was not open to the Tribunal to proceed on this basis.

44    I do not accept that the Tribunal misconstrued the legislation and wrongly construed “identity” as requiring proof of “true identity”. In my view, the Minister was correct in submitting that the appellant’s argument mischaracterised the Tribunal’s use of the expression “true identity” as evidencing the application of an impermissible standard or state of satisfaction under s 116(1AA) of the Act.

45    As the Minister observed, “true identity” is an expression which the appellant himself employed in his evidence. On this point, the appellant submitted that that does not matter as the Tribunal could not use an incorrect test, even if the incorrect test was used by the applicant before it. So much may be accepted, but, on a fair reading, the Tribunal did not use the expression “true identity” in place of the statutory test. Rather, that language was used by the Tribunal to draw a distinction between the various identities which the appellant has claimed at various times, and his identity in fact. Accordingly, the analogy the appellant drew to BOY19 v Minister for Immigration and Border Protection (2019) 165 ALD 39; [2019] FCA 574 at [59]–[60] — in which O’Bryan J accepted that including the adverb “comfortably” before “satisfied” effectively applied a different standard — was misplaced.

46    For these reasons, I do not consider that there is substance to the appellant’s contention that, by referring to the appellant’s “true identity”, the Tribunal misconstrued or misapplied the statutory test by imposing a more stringent standard than the Act prescribed.

47    Further, and in any event, the Tribunal expressed its critical finding in terms that referred to the appellant’s “identity” simpliciter (T [78]).

48    The foregoing analysis does not rest on recourse to the references to “true identity” in the Explanatory Memorandum to the Migration Amendment (Character and General Visa Cancellation) Bill 2014 (Cth), which introduced s 116(1AA), or the Procedural Advice Manual. While those documents were referred to by the primary judge (PJ [51]–[54]), the Tribunal did not refer to the Explanatory Memorandum at all, and only referred to the Procedural Advice Manual in connection with the exercise of the discretion. Accordingly, it is not necessary to further address the appellant’s submissions (relying on Saeed v Minister for Immigration and Citizenship (2010) 251 CLR 25; [2010] HCA 23 (Saeed) at [31]–[33] (French CJ, Gummow, Hayne, Crennan and Kiefel JJ) and Baini v R (2012) 246 CLR 469; [2012] HCA 59 at [14] (French CJ, Hayne, Crennan, Kiefel and Bell JJ)) concerning recourse to explanatory statements not displacing the words of the statute.

49    I should also mention the appellant’s submission based on the principles in Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1; [1932] HCA 9 (Anthony Hordern). In his written submissions, the appellant raised the example of Germans who may have migrated to Australia in the 1950s under different identities because they feared having Nazi views imputed to them. The appellant suggested that it would be contrary to common sense to assert that such a person could not now establish their “identity” “just because they changed their names surreptitiously … to mask their German origins”.

50    The next step in the submission was to contend that the appellant’s case is “conceptually no different” and then to state that “the above hypothetical” (being the hypothetical concerning the Germans) cannot be answered by pointing to accommodation arising from the s 116(1AA) power being discretionary. That was said to be the case because there are specific powers for cancellation due to the provision of incorrect information (ss 109 and 116(1)(aa)). It was then suggested that the principle in Anthony Hordern “suggests that these types of considerations are not to bleed into the separate concept of ‘identity’ in subsection 116(1AA)”. It was then said to follow that “the fact that subsection 116(1AA) is discretionary does not displace the anterior application of Anthony Hordern, contrary to the approach of the primary judge”.

51    The Anthony Hordern principle states that, when a statute confers both a general power, not subject to limitations, and a specific power that prescribes the mode in which it shall be exercised and which is subject to conditions and restrictions which must be observed, the general power cannot be exercised to do what is the subject of the specific power, thereby avoiding the conditions and restrictions: Anthony Hordern at [7] (Gavan Duffy CJ and Dixon J); Minister for Immigration & Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566; [2006] HCA 50 at [59] (Gummow and Hayne JJ). It appeared that the appellant’s submission was that, because there are specific cancellation powers relating to the provision of incorrect information, the cancellation power in s 116(1AA) cannot take such matters into account. That submission must be rejected. The specific cancellation powers are not powers with limitations and constraints of the kind attracting the Anthony Hordern principle.

52    The Minister may not be satisfied of a visa holder’s identity for a wide range of reasons. Any contention that a decision-maker is required to consider whether he or she is satisfied of a visa holder’s identity but, in so doing, must exclude from consideration the provision of incorrect information of the kind provided by the appellant — which included a wide array of instances in which, and documents by which, the appellant claimed to have different names and dates and places of birth — cannot be accepted. The adoption of a number of names and dates of birth, or other identifying details, can mean that the Minister is not satisfied as to identity, even though the circumstances may also mean that incorrect information was provided, potentially attracting ss 109 or 106(1)(aa). It is also not apparent how the appellant’s Anthony Hordern point logically connects with the significance of the discretion that is enlivened where the decision-maker is not satisfied of the visa holder’s identity.

Conclusion on Ground 1

53    Ground 1 is framed in terms that not only impugn the primary judge’s reasoning, but in terms that contend the primary judge ought to have reached the specified conclusion with the consequences specified in sub-paragraphs (a) and (b). While I would not have, as the primary judge did (PJ [57]), concluded that, properly construed, “identity” means “true identity”, ground 1 must nonetheless be rejected. That is for two reasons. First, the parties’ substantively argued their cases on the basis of the correctness of the Tribunal’s approach. I have, for the reasons set out above, concluded that the Tribunal did not misconstrue the term “identity”. As such, I have concluded that the Tribunal did not fall into jurisdictional error in that respect, albeit on a somewhat different basis from that of the primary judge. Secondly, the ground advances positive propositions as to what the primary judge ought to have held and the consequences of so holding. It follows from my reasoning above that I do not accept the positive contentions as framed. Ground 1 must be rejected.

Ground 2: procedural fairness

54    By ground 2 of his notice of appeal, the appellant contended that the primary judge erred in finding that Subdiv E, of Div 3 of Pt 2 of the Act did not require that procedural fairness be afforded to the appellant’s half-brother. It was contended that the primary judge ought to have found that, where another person’s visa may be cancelled pursuant to s 140(1), that person was required to be afforded procedural fairness.

55    Section 140 of the Act applies where cancellation of a visa (including, relevantly, pursuant to s 116 of the Act) results in cancellation of another visa. Sections 140(1)–(2) provide that:

(1)    If a person’s visa is cancelled under section 109 (incorrect information), 116 (general power to cancel), 128 (when holder outside Australia), 133A (Minister’s personal powers to cancel visas on section 109 grounds), 133C (Minister’s personal powers to cancel visas on section 116 grounds) or 137J (student visas), a visa held by another person because of being a member of the family unit of the person is also cancelled.

(2)    If:

(a)    a person’s visa is cancelled under section 109 (incorrect information) 116 (general power to cancel), 128 (when holder outside Australia), 133A (Minister’s personal powers to cancel visas on section 109 grounds), 133C (Minister’s personal powers to cancel visas on section 116 grounds) or 137J (student visas); and

(b)    another person to whom subsection (1) does not apply holds a visa only because the person whose visa is cancelled held a visa;

the Minister may, without notice to the other person, cancel the visa.

56    The appellant arrived in Australia with his two half-brothers. The Tribunal referred (T [98]) to there being evidence that one of the appellant’s half-brothers was granted a visa on the basis of being a dependent on the GSH visa of the appellant. The Tribunal also referred (T [27(h)]) to the appellant’s submission that his two half-brothers have grown into “fine young men contributing to Australian life”. The primary judge referred (PJ [93]) to one half-brother remaining in Australia on the initial GSH visa obtained as a dependent of the appellant, and the appellant’s evidence that he was no longer in contact with that half-brother (PJ [102]). The primary judge further referred to it having been accepted below that the half-brother was not put on notice of the possibility that his visa might be consequentially cancelled as a result of cancellation of the appellant’s visa (PJ [94]).

The parties’ arguments

57    The appellant’s argument started with the contention that the appellant’s half-brother was entitled to procedural fairness, which required that he be notified of the prospect of cancellation of the appellant’s visa. The appellant advanced that argument by contrasting s 140(2) — which explicitly provides that no notice need be given — with s 140(1), which does not explicitly state that no notice need be given. The appellant here relied on Saeed at [14] where the plurality referred to passages in Annetts v McCann (1990) 170 CLR 596; [1990] HCA 57 and Commissioner of Police v Tanos (1958) 98 CLR 383 to the effect that principles of natural justice can be excluded only by “plain words of necessary intendment” and an intention to exclude ought not be assumed or derived from “indirect references, uncertain inferences or equivocal considerations”. The appellant also relied on Plaintiff M61/2010E v The Commonwealth (2010) 243 CLR 319; [2010] HCA 41 where the High Court said (at [74], footnotes omitted) that: “It was said, in Annetts v McCann, that it can now be taken as settled that when a statute confers power to destroy, defeat or prejudice a person’s rights, interests or legitimate expectations, principles of natural justice generally regulate the exercise of that power.”

58    The next step in the argument was that the denial of procedural fairness to the half-brother had a “flow on effect” to the appellant as the denial of procedural fairness not only prejudiced the half-brother’s rights, but also prejudiced the appellant. The result was said to be that the appellant was also denied procedural fairness. The appellant here relied on Saeed at [11] where the plurality stated (footnotes omitted):

In Annetts v McCann it was said that it could now be taken as settled that when a statute confers power to destroy or prejudice a person’s rights or interests, principles of natural justice regulate the exercise of that power. Brennan J in Kioa v West explained that all statutes are construed against a background of common law notions of justice and fairness. His Honour said:

“[W]hen the statute does not expressly require that the principles of natural justice be observed, the court construes the statute on the footing that ‘the justice of the common law will supply the omission of the legislature’. The true intention of the legislation is thus ascertained.”

59    The flow on effect was said to arise because, had the half-brother been notified, he “could have said any number of things which might have had value in persuading the Tribunal that it should not cancel the Appellant’s visa ‘up the chain’”. The appellant argued that the primary judge erred by confining the analysis of the process of cancellation of the appellant’s visa to the appellant himself. The appellant said it was significant that the appellant mistakenly thought that the half-brother in question had obtained a visa on his own accord, and that the Tribunal was aware of this misapprehension on the part of the appellant. The appellant considered it significant that the Tribunal did nothing to address this misapprehension and, in that context, the primary judge was wrong to focus on the appellant having been given an opportunity to comment on the effect of cancellation on third parties, including the half-brother.

60    At the hearing, the appellant noted that the Minister had referred, in his written submissions, to s 118A of the Act. The Minister’s written submissions stated that a visa cancellation under s 116 must comply with Subdiv E of the Act and went on to state that s 118A of Subdiv E is taken to be an exhaustive statement of the requirements of the natural justice hearing rule and the provisions in Subdiv E provide that only the visa “holder” whose visa may be cancelled is entitled to be notified of the intention to cancel, and to comment on that, and to be notified of any decision.

61    At the hearing, the appellant referred, in response, to s 119(1), which refers to notice being given to the “holder” of the visa, in circumstances where a visa can have multiple holders. The appellant conceded, however, that the evidence was “murky” as to whether the half-brother held the same visa as the appellant (so that the half-brother would also have been a “holder” of the visa in question), or a separate, albeit dependent, visa. The appellant submitted that the Tribunal’s statement (T [98]) that the one half-brother was granted a visa “on the basis of being a dependent” permitted the inference that he held the same visa as the appellant (ie a single visa with multiple holders).

62    The Minister submitted that, contrary to the appellant’s position as to the operation of s 140(1), “there is no requirement to notify a person whose visa would be cancelled by the operation of s 140(1) of the Act”. The Minister submitted that visa cancellation pursuant to s 140(1) of the Act is “automatic” or “mandatory” in that one state of affairs — cancellation of the primary visa — has the mandatory or automatic effect of cancellation of the secondary visa. As such, the Minister contended there is no decision or exercise of a discretionary power to which an obligation of procedural fairness could attach. Evidence of Parliament’s intention to exclude procedural fairness was said to be found in the fact of the automatic cancellation, which was said to explain the absence of the words “without notice”.

63    The Minister relied on the decision of Chou v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 286 FCR 459; [2021] FCAFC 130 (Chou) at [139] where the majority (Griffiths and Abraham JJ) observed that s 140(3) of the Act (which provides, as s 140(1) does, for the automatic cancellation of a second person’s visa upon cancellation of the first person’s visa) that the provision constitutes an obligation to cancel, rather than a “power” to do so.

64    The Minister also addressed the appellant’s suggestion that the half-brother may have been a holder of the same visa as the appellant and entitled to be notified on that basis. The Minister stated that it had not been apparent from the written submissions that any point of that kind was being pressed by the appellant on the appeal and that, in any event, the primary judge found that it was not possible to make a definitive finding as to whether the appellant and his half-brother were joint holders of the same visa (PJ [129]). The Minister further submitted that the appellant’s argument based on s 119 was a separate issue to that raised by ground 2 and was therefore not open to the Court to consider.

Consideration

65    The appellant did not suggest that the Tribunal had not afforded him procedural fairness in how it dealt directly with him. The only basis upon which a failure to accord procedural fairness to the half-brother was said to result in jurisdictional error in the Tribunal’s decision vis-à-vis the appellant, was that there was a “flow on” failure to accord procedural fairness to the appellant. No other flaw that may be characterised as a jurisdictional error was identified by the appellant.

66    I do not consider that the appellant has established that the Tribunal failed to accord procedural fairness to the appellant such that ground 2 of the appeal should succeed and the orders of the Tribunal be quashed.

67    The exercise of the power to cancel a visa under s 116(1AA) is discretionary. The Tribunal recognised that, and explained how it exercised the discretion. The Tribunal directly considered, as a factor in the appellant’s case, whether there would be consequential cancellations under s 140 (T [98]–[99]).

68    The Tribunal weighed that matter in the appellant’s favour, noting that although the delegate’s decision record indicated the appellant thought both half-brothers had their own independent visas, that was not the case in respect of one-half brother. The appellant’s argument that the Tribunal was obliged to correct the appellant’s misapprehension as to his half-brother’s visa status overlooks that, by the time the matter was before the Tribunal, the status of the half-brother in question had already been corrected by the delegate. The record of the decision of the delegate relevantly stated:

The visa holder has two claimed half-brothers residing in Australia, with one half-brother being an Australian citizen. I acknowledge a visa cancellation outcome would cause some hardship in maintaining close physical proximity to his half-brother in Australia.

I note the other half-brother who was granted as a dependent Global Special Humanitarian, has been residing in Australia since 2009. I consider during this time he would have formed some ties to Australia. I acknowledge a cancellation outcome may cause a number of personal hardships to him.

Given the above information, I consider that the visa holder and his family are likely to experience some degree of hardship should his visa be cancelled and give this consideration some weight in the visa holder’s favour.

69    In other words, because the decision of the delegate plainly stated that one half-brother did not have his own, independent visa, there was no continuing misapprehension for the Tribunal to correct by the time the matter was before it.

70    Had the appellant wished the Tribunal to hear from his half-brother, he could have submitted a statement from the half-brother or asked the Tribunal to call him. There was no denial of procedural fairness to the appellant. That is so irrespective of whether any obligation of procedural fairness was owed to the half-brother. There was no “flow on” failure to accord procedural fairness to the appellant arising from any failure to accord procedural fairness to the half-brother.

71    That is sufficient to dispose of ground 2, but in any event, I note that, in my view, there is no basis upon which to conclude that the half-brother was owed an obligation of procedural fairness requiring that he be given notice of the prospect that the appellant’s visa would be cancelled. The half-brother’s visa stood to be cancelled under s 140(1), not s 140(2).

72    The appellant’s construction argument was that the exclusion of any notice requirement in the text of s 140(2), but not in s 140(1), shows that there was no intention to exclude the obligations of procedural fairness. That argument goes nowhere for two reasons.

73    First, s 140(2) differs from s 140(1), as it confers a discretion to cancel the visa, whereas cancellation under s 140(1) is automatic. That explains why s 140(2) explicitly excludes a requirement to notify a person whose visa may be cancelled under s 140(2). There was no need for s 140(1) to do likewise because the cancellation is automatic; there is no discretion to exercise and no decision to make that might otherwise be notified to the person concerned. Accordingly, the difference between the two provisions does not support the appellant’s argument.

74    Secondly, because cancellation under s 140(1) operates automatically, even if it might be said that the obligations of procedural fairness have not been excluded, that does not mean that any such obligations would require that notice be given to the half-brother of the prospect that the appellant’s visa may be cancelled.

75    Procedural fairness requires that, prior to making a decision that is adverse to the interests of a person affected by the decision, the decision maker affords that person an opportunity to be heard in relation to the decision: see, eg, Applicants M16 of 2004 v Minister for Immigration and Multicultural Affairs (2005) 148 FCR 46; [2005] FCA 1641 at [33] (Gray J). Where an obligation of procedural fairness exists, the content of that obligation will be informed by the circumstances of the particular case including the terms of the statute under which the decision is taken: Kioa v West (1985) 159 CLR 550 at 558 (Mason J) and 601 (Wilson J). In other words, merely to state that an obligation of procedural fairness is owed does not answer the question as to what the practical content of procedural fairness entails in any particular circumstance.

76    The cancellation of a visa pursuant to s 140(1) has been described as cancellation, not by the decision of a delegate, but “by operation of s 140 of the Act itself”: Farah v Minister for Immigration and Citizenship [2011] FCA 185 at [2] (Jessup J). Section 140(1) does not require any decision to be made, or any discretion to be exercised. The cancellation of the half-brother’s visa was an automatic consequence of the decision made under s 116(1AA) and, as such, even if it could be said in the abstract that an obligation of procedural fairness was owed (which is itself a doubtful proposition as no “power” to cancel is involved: Chou [139]), I do not accept that the content of that duty would require that the half-brother be notified of the prospect that the appellant’s visa may be cancelled.

77    For completeness, I note that I do not accept that s 119 of the Act establishes any free-standing obligation to accord procedural fairness to the half-brother, that is separate and distinct from the obligation that was contended to arise in relation to s 140(1). That point was not raised by the appellant in his written submissions and, to the extent it was mentioned orally, the argument was not squarely put. Further, and in any event, as the primary judge noted (PJ [129]) the evidence does not permit a conclusion to be drawn that the half-brother jointly held the same visa as the appellant. Finally, even if the half-brother was a joint holder of the visa and so entitled to be notified, for the reasons already given, I do not accept that there was any “flow on effect” such that a failure to notify the half-brother constituted a failure to accord procedural fairness to the appellant.

78    For the foregoing reasons, ground 2 must be rejected.

Ground 3: mandatory consequences of cancellation

79    Ground 3 concerns the primary judge’s finding that the Tribunal had not constructively failed to consider the mandatory legal consequences of cancellation for the appellant as a result of characterising such consequences as mere “intended legislative consequences” (PJ [173]–[175]).

80    Relevantly, the Tribunal stated (T [100]–[102], emphasis added):

100.    In the case of cancellation, the applicant could become an unlawful non-citizen and could be detained under s 189 and removed under s 198 of the Act. The applicant would also be subject to Public Interest Criterion 4013, which would prevent the applicant from being granted a further visa for three years.

101.    The Tribunal is of the view that although the applicant could be detained indefinitely and that he has mental health challenges, these potential consequences are intended legislative consequences and, in the applicant’s case do not outweigh the reasons to cancel the visa.

102.     The Tribunal gives this consideration neutral weight.

81    The primary judge considered these passages and observed that while the Tribunal “did not go extensively into detail in considering the mandatory legal consequences of cancellation”, when read fairly, it was evident that the Tribunal had properly identified and weighed the mandatory legal consequences of cancellation for the appellant (PJ [173]–[174]). In disposing of the equivalent ground of review below, the primary judge also observed (PJ [175]) that the Tribunal had (T [101]) referred to having weighed the mandatory legal consequences against the reasons in favour of cancellation.

The parties’ arguments

82    The appellant submitted, relying on NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1; [2014] FCAFC 38 (NBMZ) at [8]–[10], [17] (Allsop CJ and Katzmann J), that a decision maker must consider the mandatory legal consequences of its decision. He then submitted that, although the Tribunal identified the mandatory legal consequences, its approach to the legal consequences of its decision (recorded at T [100]–[101], quoted above) effectively “reduced these matters to nothing”. The appellant argued that the Tribunal “rejected” the consequences on the basis that they were mandatory.

83    The appellant submitted that it was “entirely tautologous for the Tribunal to label the consequences as ‘intended legislative consequences’” and contended that, in relying on this tautology, the Tribunal had “constructively failed to consider the mandatory legal consequences altogether”.

84    The appellant relied on the decision of the Full Court (Allsop CJ, Markovic and Steward JJ) in Hands v Minister for Immigration and Border Protection (2018) 267 FCR 628; [2018] FCAFC 225 (Hands) in support of his submission that the Tribunal had failed to give “genuine consideration” to these matters. In Hands, Allsop CJ referred to the extent of the consideration required to be given to the “human consequences” of decisions (at [3]):

The consequences of these considerations are that where decisions might have devastating consequences visited upon people, the obligation of real consideration of the circumstances of the people affected must be approached confronting what is being done to people. This obligation and the expression of its performance is not a place for decisional checklists or formulaic expression. Mechanical formulaic expression and pre-digested shorthand expressions may hide a lack of the necessary reflection upon the whole consideration of the human consequences involved. Genuine consideration of the human consequences demands honest confrontation of what is being done to people. Such considerations do not detract from, indeed they reinforce, the recognition, in an assessment of legality, that those entrusted with such responsibility be given the freedom of lawful decision-making required by Parliament.

85    The appellant submitted that the Tribunal’s approach to the consequences of a cancellation decision for the appellant amounted to a failure to engage in the “necessary reflection and honest confrontation” described in Hands. The argument was that, by focusing on the fact that the consequences were “intended”, the Tribunal failed to assess the substantive aspects of those consequences.

86    The appellant further submitted that, even accepting, as the primary judge did (at PJ [174]) that the mandatory consequences were “weighed” by the Tribunal, that was insufficient to cure the error as the consequences were weighed as intentional legislative consequences (cf mandatory legislative consequences). The appellant contended that this represents a fundamental mischaracterisation, amounting to a jurisdictional error.

87    The Minister contended that the appellant’s argument requires the Court to infer that the Tribunal failed genuinely to consider the mandatory legal consequences of the decision, based on its use of the phrase “intended legislative consequences”. The Minister submitted that the Tribunal correctly identified the relevant consequences for the appellant, and clearly understood and considered the impact that a cancellation decision would have on the appellant, including the impacts on his mental health.

Consideration

88    In my view, ground 3 must be rejected. It was not disputed that the Tribunal was required to consider the mandatory legal consequences of cancellation of the appellant’s visa (NBMZ at [10] (Allsop CJ and Katzmann J)). The Tribunal did do that, albeit in brief reasons. The Tribunal identified (T [100]) that if the appellant’s visa were cancelled, he could become an unlawful non-citizen and thereafter detained under s 189 of the Act, and removed under s 198 of the Act. The Tribunal also identified, as a legal consequence, that the appellant would be subject to Public Interest Criterion 4013, which would prevent him from being granted a further visa for three years.

89    In oral submissions on this ground, the appellant observed that “[i]t does come down to how your Honour interprets these [T [100]–[102]] reasons”. The Tribunal’s reasons are to be read as a whole: see, eg, Guclukol v Minister for Home Affairs (2020) 279 FCR 611; [2020] FCAFC 148 at [56] (Katzmann, O’Callaghan and Derrington JJ); Minister for Home Affairs v NBCM (2019) 167 ALD 215; [2019] FCAFC 199 at [39] (Logan, Jagot and Thawley JJ). The Tribunal directly referred to and considered, in the appellant’s favour, the personal hardships that would be caused to the appellant if his visa were cancelled (T [90]) and also directly referred (T [101]) to the hardships that would be caused by indefinite detention (note that no issues concerning the High Court’s decision in NZYQ v Minister for Immigration Citizenship and Multicultural Affairs (2023) 97 ALJR 1005; [2023] HCA 3 were raised on the appeal). Reading the Tribunal’s reasons as a whole shows that the Tribunal was aware of, and took into account, the “human consequences” of cancellation for the appellant (Hands at [3]). I do not accept that the Tribunal’s reasons involved only the rote recitation of the legal consequences, divorced from the substantive, human effect of those consequences.

90    The appellant accepted, in oral submissions, that the fact that the consequences were intended by the legislature could be relevant to the weight attributed to them. That is the approach the Tribunal took in the balance of T [101], where it observed that the practical consequences were “intended legislative consequences” and, in the appellant’s case, did not “outweigh the reasons to cancel the visa”. Having identified the consequences, it was (as the appellant accepted) open to the Tribunal to attribute weight to those consequences on a basis that took into account that the legislature intended for those consequences to flow.

91    Accordingly, I do not consider that the appellant has established that the Tribunal constructively failed to consider the mandatory legal consequences of its decision and ground 3 must be rejected.

DIsposition

92    The appeal will be dismissed with costs.

Associate:

Dated:    18 April 2024