Federal Court of Australia

Smith v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 652

ORDERS

THE COURT ORDERS THAT:

1.    The application for judicial review be dismissed.

2.    The applicant pay the first respondent’s costs as agreed or taxed.

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

REASONS FOR JUDGMENT

SHARIFF J:

A.    INTRODUCTION

1    The applicant is a citizen of New Zealand born in 1972. He first came to live in Australia at the age of 5. He returned to New Zealand at the age of 13, and then returned to Australia at the age of 21.

2    On 29 June 2022, the applicant was sentenced to an aggregate term of imprisonment of 14 months in respect of two convictions arising from a family violence incident at the applicant’s home on 14 January 2022. After the applicant was released from prison, he was sentenced to a further term of imprisonment of three months for breaching an Apprehended Violence Order (AVO).

3    As a result of the first prison sentence, on 25 October 2022 the applicant’s Special Category (subclass 444) visa was mandatorily cancelled under s 501(3A) of the Migration Act 1958 (Cth) (the Act) on the basis that he did not pass the character test under s 501(3A)(a)(i) as he had a “substantial criminal record” within the meaning of s 501(7)(c).

4    On 31 October 2022, the applicant made representations seeking that the cancellation of his visa be revoked under s 501CA(4) of the Act. Following the decision of the Full Federal Court in Pearson v Minister for Home Affairs [2022] FCAFC 203; (2022) 295 FCR 177 on 22 December 2022, the first defendant (the Minister) accepted that the cancellation of the applicant’s visa was invalid. However, on 17 February 2023, the passage of the Migration Amendment (Aggregate Sentences) Act 2023 (Cth) had the effect of reversing the decision in Pearson and retrospectively deeming the cancellation of the applicant’s visa as valid.

5    On 10 August 2023, a delegate of the Minister proceeded to consider but refused the applicant’s request to revoke the cancellation of his visa under s 501CA(4) of the Act. The applicant applied to the second respondent (the Tribunal) for merits review of the delegate’s decision and a hearing was held on 16 and 17 October 2023. The applicant was legally represented at the hearing and provided a statement of facts, issues and contentions (applicant’s SFIC). The Minister was also legally represented at the hearing and also filed a statement of facts, issues and contentions (Minister’s SFIC). Written and oral evidence was given by the applicant and others in support of his claims.

6    On 3 November 2023, the Tribunal affirmed the delegate’s decision: see Smith and Minister for Immigration, Citizenship and Multicultural Affairs [2023] AATA 3570 (AAT). The Tribunal held at AAT [44] that the applicant did not pass the character test and then went on to weigh the various factors set out in Direction No 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501(CA) (Direction 99), concluding at AAT [86] that “the correct or preferable decision in this case does favour non-revocation of the cancellation decision”.

7    By an application to this Court, the applicant seeks judicial review of the Tribunal’s decision. The applicant’s grounds of review are that:

(a)    the Tribunal at AAT [44] exceeded its jurisdiction by conducting a review in relation to the “wider question” of whether the applicant did not pass the character test by operation of ss 501(6)(c), (d)(i) and (d)(ii) of the Act (Ground 1);

(b)    by denying the applicant procedural fairness in respect of the “wider question”, the Tribunal also denied the applicant the realistic possibility of a finding that there was another reason to revoke the cancellation of his visa (Ground 2); and

(c)    the Tribunal failed to deal with, or give proper, genuine and realistic consideration to, the applicant’s claim or argument that his severe osteoarthritis would be an impediment if removed from Australia (Ground 3).

8    For the reasons set out below, the application for judicial review should be dismissed.

B.    GROUND 1

9    Ground 1 raises the issue of whether the Tribunal exceeded its jurisdiction by finding that it was not satisfied that the applicant passed the character test on a basis different to that relied upon by the delegate who made the non-revocation decision. Whereas the delegate who made the non-revocation decision found that the applicant did not pass the character test on the ground in s 501(6)(a) (on the basis of s 501(7)(c) that the applicant had a “substantial criminal record” as he had been sentenced to a term of imprisonment for 12 months or more), the Tribunal additionally found that the applicant did not pass the character test on the grounds in ss 501(6)(c), (d)(i) and (d)(ii) (namely, that the applicant was not a person of good character having regard to his past and present criminal conduct or past and present general conduct, and that the applicant posed a risk of engaging in criminal conduct or harassing, molesting, intimidating or stalking another person in Australia, in the event he were allowed to remain in Australia).

10    It was not in dispute before me that:

(a)    the applicant’s visa was originally cancelled on 25 October 2022 under s 501(3A) on the basis that the applicant did not pass the character test as he had been sentenced to a term of imprisonment of 12 months or more and therefore had a “substantial criminal record” within the meaning of s 501(7)(c) (Original Cancellation Decision);

(b)    the applicant was invited to make representations under s 501CA(3)(b) on the basis that he had failed the character test as set out in (a) above, and the applicant took up that opportunity by making such representations on 31 October 2022;

(c)    the delegate decided not to revoke the original decision including because the applicant had not passed the character test as required under s 501CA(4)(b)(i) on the basis that the applicant had a “substantial criminal record” within the meaning of s 501(7)(c) (the Non-Revocation Decision).

11    It will be apparent from the above that in respect of both the Original Cancellation Decision and the Non-Revocation Decision, the respective decision-makers were satisfied that the applicant had failed the character test because he had a “substantial criminal record” within the meaning of s 501(7)(c).

12    On review, the Tribunal also concluded that the applicant did not pass the character test. The Tribunal stated at AAT [44]-[45]:

Character Test

In this circumstance, I am required to address the same two questions the internal-review delegate addressed under section 501CA(4)(b). The first question that I must address is whether Mr Smith passes the “character test”, which, I note, is a wider question than whether he failed the character test for having been sentenced to a term of imprisonment of 12 months or more [see section 501CA(4)(b)(i)]. As of today, Mr Smith does not pass the character test given the aggregate sentence of imprisonment of 14 months, but he also fails that test on other grounds in my opinion; e.g., that he is not “of good character” as of my decision today, and that there is a risk that he would commit a criminal offence or harass, molest, intimidate or stalk another person if he were allowed to remain in Australia [see section 501(6)(c), (d)(i) and (d)(ii) respectively. On Mr Smith’s future risk, see below at [58]ff].

Accordingly, I answer the first question in the same way as the delegate: Mr Smith does not pass the character test.

(Footnotes inserted in square brackets; emphasis added).

13    As is apparent from the above extract, the Tribunal was satisfied that the applicant failed the character test on the basis that the delegate had found, namely, that he had been sentenced to a term of imprisonment of 12 months or more. However, the Tribunal considered that the question before it was “wider” and that the applicant “also” failed that test on other grounds.

B.1    The parties’ submissions

14    The applicant contended that it was impermissible for the Tribunal to ask itself the “wider question” of whether the applicant did not pass the character test by operation of ss 501(6)(c), (d)(i) and (d)(ii) of the Act. It was contended that the Tribunal should have confined its review to the question of whether the applicant did not pass the character test by operation of s 501(6)(a), being the ground on which the Minister’s delegate decided the question for the purpose of the Non-Revocation Decision.

15    The applicant’s submissions drew a distinction between, on the one hand, the power exercised by the Tribunal to answer the “statutory question” as to what was the correct or preferable decision and, on the other hand, the ambit or scope of the review. The applicant contended that the scope of the review before the Tribunal was confined by the “ground” upon which the delegate had determined the Non-Revocation Decision. In support of this contention, the applicant relied on the judgment of Rares J in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CPJ16 [2019] FCA 2033 at [66]-[68], where his Honour said:

I am of opinion that the Tribunal’s task in determining, on a review, what is the correct or preferable decision must be connected to the grounds of the decision to exercise the statutory power the subject of the review, as exposed in the statement of the delegate’s findings and reasons, so that the character of the review can be shaped by that consideration. Once the challenged ground for the decision-maker’s exercise of his or her power is identified, the Tribunal must make its decision having regard to the evidence, submissions and factual context at the time of its decision: Shi [v the Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286] at 329-330 [146]-[149].

Here, the delegate exercised the power under s 501(1) to refuse to grant a protection visa on the ground that the applicant had not passed the criterion in s 501(6)(d)(i) of the character test. He made the material findings supporting his decision to refuse to grant her the visa that, if she were allowed to remain in Australia, there was a risk that she would engage in criminal conduct within the meaning of s 501(6)(d)(i). He addressed the forward-looking question posed by s 501(6)(d)(i) that related, at the time of his decision, to the existence of the risk that she would so offend in the future. In its review of the delegate’s decision, it was open to the Tribunal to have regard to any conduct or circumstances affecting the question under s 501(6)(d)(i) that occurred or came to light after the delegate’s decision and up to and including the time of its own decision, in considering whether to exercise the discretion to refuse to grant the visa under s 501(1) if she failed the character test in respect of s 501(6)(d)(i).

The delegate had invited the applicant to satisfy him, in accordance with the rules of procedural fairness, on that sole matter of concern, namely s 501(6)(d)(i). That confined the scope of the review under s 43(1) of the Administrative Appeals Tribunal Act to the question whether, first, the applicant had passed the character test in s 501(6)(d)(i) and, secondly, only if she did not, how the Tribunal should exercise its power under s 501(1). And because the failure of the applicant to satisfy the delegate about the criterion in s 501(6)(d)(i) was the ground of his decision in the exercise of the power under s 501(1), that ground confined the issues on the review.

(Emphasis added, and emphasis from original retained in underline).

16    Relying upon Rares J’s reasoning, the applicant submitted that the ambit or scope of the review before the Tribunal as to whether he passed the character test was confined to the sole ground upon which the delegate had made the Non-Revocation Decision, being that he had a “substantial criminal record”. The applicant accepted that CPJ16 was concerned with a decision to refuse a visa under s 501(1) of the Act, whereas the present case concerns a decision not to revoke the mandatory cancellation of a visa under s 501CA(4). However, the applicant contended that the “statutory question” in each case was essentially the same, being in effect whether the applicant passed the character test under s 501(6) of the Act. The applicant therefore submitted that the reasoning in CPJ16 applied by analogy to the present case.

17    The applicant accepted the Minister’s contentions (which relied upon Frugtniet v Australian Securities and Investments Commission [2019] HCA 16; (2019) 266 CLR 250 at [51]) that the Tribunal was required to “stand in the shoes of the decision-maker”, exercise the same powers as the decision-maker, address the same question, and determine for itself on the material before it the correct and preferable decision. However, the applicant submitted that the issue here was not one of the power exercised by the Tribunal, but whether it exceeded the scope of the review as confined by the determination made by the delegate. In support of this contention, the applicant relied upon the decision of Kiefel J (as her Honour then was) in Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286 at [133]:

Section 43(1) of the AAT Act provides for the powers that the tribunal may exercise with respect to matters in respect of which it has jurisdiction. The exercise of the powers conferred by the subsection is restricted to the tribunal’s purpose, of reviewing the decision in question. As Sheppard J said in Department of Social Security v Riley, it is not possible to apply s 43(1) to the facts of any case without determining, first of all, what is the decision under review. It may therefore be appreciated that the decision, and the statutory question it answers, should be identified with some precision, for it marks the boundaries of the review.

(Footnotes omitted; emphasis added).

18    The applicant also relied upon Kiefel J’s reasons at [147]:

There is another restriction which operates with respect to the evidence the tribunal may consider as to this ground. The effect of the restriction appears to have been assumed in argument. The tribunal does not acquire all the powers of the authority, but only those necessary to review the decision made by it. The authority’s decision concerned particular conduct of the appellant, which it had investigated. The tribunal does not have all the authority’s disciplinary powers, and does not have its investigatory powers for the purposes given by the Migration Act. The question for the tribunal is not whether there has been a breach by the appellant of the Code in any respect, but whether those identified by the authority are established. It may use its own evidence-gathering powers to further inform itself about those matters, but those powers do not translate to general investigatory powers and cannot be used to ascertain other, inculpatory, conduct.

(Footnotes omitted; emphasis added, with additional emphasis in italics).

19    The applicant further submitted that the representations made by an applicant play a central role in the scheme of s 501CA and in the determination of whether the Minister (and the Tribunal on review) is satisfied that there is “another reason” why the cancellation of a visa should be revoked. The applicant submitted that the representations are a “condition precedent” to the valid exercise of the power under s 501CA(4): citing GBV18 v Minister for Home Affairs [2020] FCAFC 17; (2020) 274 FCR 202 at [31]. The applicant contended that the important role of the making of such representations would be subverted if the Tribunal was at liberty to depart from the grounds stated in the invitation given under s 501CA(3)(b) and in respect of which the applicant has had the opportunity to make representations. The applicant contended that, by conducting a review in relation to whether the applicant failed the character test on a different and previously unspecified basis, the Tribunal exceeded its jurisdiction (and, as addressed below under Ground 2, denied the applicant procedural fairness).

20    The applicant also submitted that the operation of ss 500(6H) and (6J) of the Act “strongly suggests” that the Tribunal was not at liberty in its review to depart from the character ground relied upon by the delegate. The applicant contended that this was the case as these provisions operated to limit the information and documents the applicant could put before the Tribunal and to which the latter could have regard. It was further submitted that even if it was open for the Tribunal to put new character grounds to the applicant at a hearing, ss 500(6H) and (6J) “significantly limited” the ability of the applicant to respond to such matters, including by providing character references at that late stage including in documentary form.

21    The Minister submitted that, when reviewing a decision of the Minister (or a delegate) under s 501CA(4) of the Act, the task of the Tribunal was to stand in the shoes of the Minister (or delegate) and to make the correct or preferable decision on review. The Minister relied upon what was said in a different statutory context by Bell, Gageler, Gordon and Edelman JJ in Frugtniet at [51] that:

... [T]he jurisdiction conferred on the AAT by ss 25 and 43 of the AAT Act, where application is made to it under an enactment, is to stand in the shoes of the decision-maker whose decision is under review so as to determine for itself on the material before it the decision which can, and which it considers should, be made in the exercise of the power or powers conferred on the primary decision-maker for the purposes of making the decision under review. The AAT exercises the same power or powers as the primary decision-maker, subject to the same constraints. The primary decision, and the statutory question it answers, marks the boundaries of the AAT’s review. The AAT must address the same question the primary decision-maker was required to address, and the question raised by statute for decision by the primary decision-maker determines the considerations that must or must not be taken into account by the AAT in reviewing that decision. A consideration which the primary decision-maker must take into account in the exercise of statutory power to make the decision under review must be taken into account by the AAT. …

(Emphasis added).

22    The Minister submitted that the Tribunal was required to ask itself, relevantly, whether it was satisfied that the applicant did not pass the character test as defined by s 501. That was the question posed by s 501CA(4)(b)(i) which the delegate answered and which the Tribunal was required to, and did, answer. The Minister further submitted that the character test specified in s 501CA(4)(b)(i) is broader than the sub-set of the character test referred to in s 501(3A)(a): XJLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 256 at [11] per Rares J. The Minister also relied on the reasoning of McKerracher J (with whom Colvin J agreed) in HZCP v Minister for Immigration and Border Protection (2019) 273 FCR 121 at [58], where his Honour stated:

The decision under review in this appeal is that of the Tribunal declining to revoke the cancellation decision under s 501CA(4) of the Migration Act. This involved determination of the question of whether the Tribunal was satisfied the applicant passed the “character test” as defined by s 501. The relevant decision-maker must decide for himself or herself whether the applicant passes the character test as defined by s 501(6) and may, in theory, come to a different conclusion than that reached during the cancellation decision…

(Emphasis added).

23    The Minister contended that CPJ16 did not strictly apply as it concerned a decision to refuse a visa under s 501(1) of the Act and, therefore, the statutory question that had to be answered by the delegate who made the non-revocation decision (and the Tribunal standing in the delegate’s shoes) was different. The Minister submitted that, in any event, the Court should not follow CPJ16 on the basis that it involved a clear and patent error: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v FAK19 [2021] FCAFC 153; (2021) 287 FCR 181 at [18] (Allsop CJ). The Minister contended that this was so because there was no consideration given to the High Court’s judgment in Frugtniet, which establishes that the Tribunal must ask itself the same question raised by the statute that the delegate was required to address. Applying Frugtniet, the question raised by the statute which the delegate was required to address was, relevantly, whether the applicant did not pass the character test as defined by s 501. The Minister contended that the decision in Shi does not establish otherwise, as Rares J acknowledged in CPJ16 at [64]. The Minister submitted that the decision in Shi turned upon its own facts. The Minister drew attention to Kiefel J’s consideration in Shi of earlier authorities at [133]-[141] and, in particular, her Honour’s conclusion at [141] that what is apparent from s 43(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) is that the Tribunal is to reach its conclusion “as to what is the correct decision, by conducting its own, independent, assessment and determination of the matters necessary to be addressed”, and that its exercise of power is not dependent upon the existence of error in the original decision (citing Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 591 (Bowen CJ and Deane J), 599 (Smithers J)).

24    The Minister contended that the purpose to be served by the representations made by an applicant under s 501CA(3) did not bear upon the role of the Tribunal. The Minister submitted that the applicant was entitled to make representations as to why the Original Cancellation Decision should be revoked and those representations were a mandatory consideration which the delegate was bound to take into account. It was submitted, however, that the material before the Tribunal was necessarily different to the material before the delegate and included the evidence given before the Tribunal. The Minister contented that it was for the Tribunal to determine for itself what findings to make by reference to the evidence before it and that the Tribunal was not bound by any particular findings made by the delegate.

25    The Minister submitted that ss 500(6H) and (6J) did not limit the Tribunal’s obligations to afford procedural fairness to the applicant, relying upon Uelese v Minister for Immigration and Border Protection [2015] HCA 15; (2015) 256 CLR 203 at [57], [63] and [74]. The Minister further submitted that if the Tribunal raises an issue at the hearing, a review applicant may either respond at the hearing or seek an opportunity to respond after the hearing or seek an adjournment to do so, and that “ss 500(6H) and (6J) cannot stand in the way of any such response being taken into account by the Tribunal”: relying upon Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v DOM19 [2022] FCAFC 21; (2022) 289 FCR 499 at [17], [23](d)-(e) and [32] and the cases there cited.

B.2    Consideration as to whether Tribunal exceeded jurisdiction

26    The question raised by Ground 1 relates to the scope of the review conducted by the Tribunal. When reviewing the decision of the delegate, the task of the Tribunal was to stand in the shoes of the Minister (or delegate) and to make the correct or preferable decision on review: Frugtniet at [51]. The Tribunal was required to address the same statutory question as the delegate: Frugtniet at [51]. As was recently observed by the High Court in Miller v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 13; (2024) 98 ALJR 623 at [14]-[15]:

The jurisdiction of the Tribunal, as is well settled, is in essence to remake the decision under review. The jurisdiction is “‘to do over again’ that which was done by the primary decision-maker”: “to stand in the shoes of the decision-maker whose decision is under review so as to determine for itself on the material before it the decision which can, and which it considers should, be made in the exercise of the power or powers conferred on the primary decision-maker for the purpose of making the decision under review”.

In the exercise of that jurisdiction, the Tribunal is obliged by s 2A(a) and (b) of the AAT Act to pursue the objective of providing a mechanism for review that is “accessible” and that is “fair, just, economical, informal and quick”. Section 25(4A) empowers the Tribunal to “determine the scope of the review of a decision by limiting the questions of fact, the evidence and the issues that it considers”.

(Emphasis added; footnotes omitted).

27    See also Shi at [100], Frugtniet at [51] and Minister for Immigration and Border Protection v Makasa [2021] HCA 1; (2021) 270 CLR 430 at [50].

28    The starting point for an examination of the question raised by Ground 1 is the identification of the decision under review. Here, the Tribunal was conducting a review under s 500(1)(ba) of the Act of a decision made by a delegate of the Minister under s 501CA(4) of the Act. The decision being reviewed was the Non-Revocation Decision made under s 501CA(4). This was the decision that the Tribunal was being asked to remake. In doing so, the Tribunal was exercising all of the powers and discretions conferred on the delegate who made the Non-Revocation Decision: s 43(1) of the AAT Act. A relevant aspect of the decision under review was whether the applicant passed the character test: s 501CA(4)(b)(i) of the Act.

29    As a result, the Tribunal was standing in the shoes of the delegate to determine whether the applicant passed the character test as specified in s 501CA(4)(b)(i) (being the character test “as defined by section 501”). I do not consider that in undertaking that statutory task, the Tribunal was confined as to the scope of the review by the particular ground or criterion upon which the delegate had found that the applicant did not pass the character test (though, where the Tribunal relies upon different grounds, the Tribunal may be required to afford procedural fairness to the applicant as I set out below in my analysis of Ground 2). The applicant contended that I should reach the contrary conclusion on the basis of the reasons of Rares J in CPJ16. I am not persuaded that I should do so for the reasons that follow.

30    Both the applicant and the Minister agreed that the decision in CPJ16 did not strictly apply to the present case. That is because CPJ16 concerned a decision to refuse a visa under s 501(1) of the Act, whereas the present case concerns a decision not to revoke the mandatory cancellation of a visa under s 501CA(4). Nevertheless, the applicant contended that the reasons in CPJ16 have force by way of analogy. I see the force in that submission given that both provisions (s 501(1) and s 501CA(4)) ultimately lead to the exercise of a right of review before the Tribunal relating to the subject matter of whether, among other things, the applicant has failed to pass the character test.

31    As I have mentioned, the applicant’s argument based on CPJ16 was raised by way of an analogy; it was not advanced as a decision that is strictly binding on me. In that sense, it is unnecessary for me to determine whether CPJ16 is plainly wrong as the Minister contended. However, as the applicant submitted that I should apply CPJ16 by way of analogy, I should explain the reasons why I am not persuaded that I should do so.

32    The position in CPJ16 was that the Minister’s delegate had determined that the applicant had failed to pass the character test by virtue of s 501(6)(d)(i) of the Act: CPJ16 at [17]-[20]. On review, the Tribunal proceeded on the basis that its function was to decide the same questions in issue before the delegate, and no more: [40]. The Tribunal concluded that the applicant had not failed the character test by virtue of s 501(6)(d)(i) and rejected the Minister’s application to include in the review the issue whether the applicant did not pass the character test on a different ground, being s 501(6)(c): [43]. It was the Minister that sought judicial review before this Court on the ground that the Tribunal had erred by failing to conduct the review according to law. Within that particular factual context, Rares J’s reasons disclose concerns held by his Honour as to matters relating to procedural fairness. This is apparent from what Rares J said at [58]-[59]:

Here, the delegate confined the inquiry as to whether the applicant could satisfy him that she passed the character test, within the meaning of s 501(1), solely to the consideration of the criterion in s 501(6)(d)(i). I reject the Minister’s argument that other criteria in s 501(6) remained open to consideration on a review of the delegate’s decision. It is apparent from the terms of s 501(6) that the delegate had eliminated from the scope of his consideration any other potentially adverse criteria, because, it should be inferred, he had considered that they could not, or did not, arise.

The evidence before the Tribunal showed that the delegate’s view was that the only matter in s 501(6) about which he required the applicant to satisfy him was that under s 501(6)(d)(i). In that factual context, the delegate had informed (at least by necessary implication) the applicant that she did not need to address specifically any criteria in the character test other than s 501(6)(d)(i), for the purposes of satisfying the delegate that she passed that test. It was obvious on the material before the delegate that there was no need to ask the applicant; eg whether she had a substantial criminal record as a result of being sentenced to imprisonment for more than 12 months, as provided in s 501(6)(a), because she had received only the one sentence of imprisonment of 28 days. Likewise, many of the other criteria in s 501(6) could not have applied to her on the facts; eg she had not been the subject of an adverse security assessment by the Australian Security Intelligence Organisation within the meaning of s 501(6)(g).

(Emphasis added).

33    These passages expose a concern as to the particular factual context and, specifically, as to the way the decision was made by the delegate and the evidence before the Tribunal about that decision-making. That his Honour was concerned about the apparent or actual denial of procedural fairness is writ large in his Honour’s conclusion at [68]:

The delegate had invited the applicant to satisfy him, in accordance with the rules of procedural fairness, on that sole matter of concern, namely s 501(6)(d)(i). That confined the scope of the review under s 43(1) of the Administrative Appeals Tribunal Act to the question whether, first, the applicant had passed the character test in s 501(6)(d)(i) and, secondly, only if she did not, how the Tribunal should exercise its power under s 501(1). And because the failure of the applicant to satisfy the delegate about the criterion in s 501(6)(d)(i) was the ground of his decision in the exercise of the power under s 501(1), that ground confined the issues on the review.

(Emphasis added, and emphasis from original retained in underline).

34    It is by reference to this particular factual context that I consider that caution needs to be exercised in applying CPJ16 by way of analogy given that it appears that Rares J’s conclusions were informed by the specific decision-making process in that case.

35    In any event, to the extent that CPJ16 has any application beyond its factual context, I am persuaded that I should not follow it even by way of analogy. Even though it is not strictly necessary for me to determine whether CPJ16 is “plainly wrong”, I have had regard to authorities concerning that test in being persuaded that I should not follow CPJ16. In La Macchia v Minister for Primary Industries and Energy (1992) 110 ALR 201 at 204, Burchett J cited Halsbury’s Laws of England, 4th ed, vol 26, para [580] for the proposition that “a judge of first instance will as a matter of judicial comity usually follow the decision of another judge of first instance [scil of coordinate jurisdiction] unless he is convinced that the judgment was wrong”. In BVT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 222; (2020) 283 FCR 97 (Allsop CJ, Moshinsky and O’Callaghan JJ), the Full Court stated at [62] that, as a matter of comity, a single judge exercising the original jurisdiction of this Court should follow a decision of another single judge exercising the same jurisdiction unless persuaded that that decision is plainly wrong.

36    I am conscious of the matters raised by Allsop CJ in FAK19 at [21] and [30] as to the question of consistency and comity that should weigh upon a single judge’s approach to the application of a decision of an earlier single judge’s decision. That is all the more important and requires careful reflection when an argument is raised seeking to rely upon the earlier decision by way of analogy. Here, I have balanced the need to ensure that I do not decide more than is necessary as against the need to explain my reasons for not following, even by way of analogy, CPJ16. As a result, I have reflected carefully on whether I am persuaded that I should not follow CPJ16, especially as it was decided by an experienced former judge of this Court. I have come to the conclusion that I am so persuaded and it is necessary for me to explain why.

37    In my view, Rares J conflated the separate but related questions as to the scope of the review and a denial of procedural fairness, and drew more from Shi than that for which the decision stands. Insofar as the scope of the review was concerned, Rares J identified that the Minister had submitted that the Tribunal was to make the “correct and preferable decision” (at [51]), but does not appear, in the critical parts of his Honour’s reasons at [56]-[71], to have dealt squarely with the proposition drawn from Frugtniet at [14]-[15] that the Tribunal was required to ask itself the same question raised by the statute that the delegate was required to address. The emphasis on answering the same question raised by the statute to which I have referred raises an important distinction between the Tribunal attending to its statutory task of answering that question, as opposed to answering that question in the way that the delegate has. In Frugtniet, Kiefel CJ, Keane and Nettle JJ stated at [15]:

As Kiefel J observed in Shi, identifying the question raised by the statute for consideration will usually determine the facts that may be taken into account in connection with the decision. The issue is one of relevance, to be determined by reference to the elements of the question necessary to be addressed in reaching a decision.

(Emphasis added).

38    It is the statutory question that determines the facts that may be taken into account in connection with the decision. That is so because the role of the Tribunal is to determine the correct or preferable decision that attends to the statutory question. As Bowen CJ and Deane J stated in Drake at 589:

The function of the Tribunal is, as we have said, an administrative one. It is to review the administrative decision that is under attack before it. In that review, the Tribunal is not restricted to consideration of the questions which are relevant to a judicial determination of whether a discretionary power allowed by statute has been validly exercised. Except in a case where only one decision can lawfully be made, it is not ordinarily part of the function of a court either to determine what decision should be made in the exercise of an administrative discretion in a given case or, where a decision has been lawfully made in pursuance of a permissible policy, to adjudicate upon the merits of the decision or the propriety of the policy. That is primarily an administrative rather than a judicial function. It is the function which has been entrusted to the Tribunal.

The question for the determination of the Tribunal is not whether the decision which the decision-maker made was the correct or preferable one on the material before him. The question for the determination of the Tribunal is whether that decision was the correct or preferable one on the material before the Tribunal.

(Emphasis added).

39    Thus, the decision under review is the one that the statute requires to be made. This is what Kiefel J made plain in Shi at [133] where her Honour stated that:

… it is not possible to apply s 43(1) to the facts of any case without determining, first of all, what is the decision under review. It may therefore be appreciated that the decision, and the statutory question it answers, should be identified with some precision, for it marks the boundaries of the review.

40    In the instant case, by dint of s 500(1)(ba), the decision under review was the decision made under s 501CA(4). Relevantly, by s 501CA(4)(b)(i), the statutory question that had to be remade was whether the Tribunal (standing in the shoes of the Minister) was satisfied that “the person passes the character test (as defined by section 501)”. The statutory question to be answered was whether the applicant passed the character test as defined by s 501. It was not confined to the ground upon which the delegate had relied.

41    In CPJ16, Rares J appears to have conflated an examination of the statutory question under consideration, which is fundamental to the review before the Tribunal, with the separate but related question as to the way or manner in which the delegate determined that question. The way the delegate has attended or answered the question may well raise questions as to procedural fairness before the Tribunal if the Tribunal seeks to decide the matter on a different basis to the delegate but this does not alter the ambit or scope of the review—the review remains one where the Tribunal is tasked to remake the decision that is under review by attending to the statutory question at hand.

42    Further, in considering that the scope of the review before the Tribunal was limited to the ground upon which the delegate had determined the statutory question, Rares J relied upon Shi (as the applicant does in this case) in a way that, in my view, went beyond what that decision stands for. The facts in Shi involved a decision made by the Migration Agents Registration Authority (the Authority) to cancel the registration of Mr Shi as a migration agent registered under s 303(1) of the Act on the grounds that he had breached the relevant “Code of Conduct” and was not a person of integrity or a fit and proper person to give immigration assistance. Section 303(1) of the Act under consideration in Shi provided as follows:

(1)    The Migration Agents Registration Authority may:

(a)    cancel the registration of a registered migration agent by removing his or her name from the register; or

(b)    suspend his or her registration; or

(c)    caution him or her;

if it becomes satisfied that:

(d)    the agent’s application for registration was known by the agent to be false or misleading in a material particular; or

(e)    the agent becomes bankrupt; or

(f)    the agent is not a person of integrity or is otherwise not a fit and proper person to give immigration assistance; or

(g)    an individual related by employment to the agent is not a person of integrity; or

(h)    the agent has not complied with the Code of Conduct prescribed under section 314.

43    In making its decision, the Authority found against Mr Shi on two, only, of the five criteria specified in s 303(1). The Authority was satisfied of the matters in s 303(1)(f) and (h). On Mr Shi’s application for review, the Tribunal set aside the Authority’s decision and substituted its own decision to the effect that Mr Shi be cautioned on certain terms and conditions that are not presently relevant. In doing so, the Tribunal had regard to the facts and circumstances as at the time of the review. On appeal to the Federal Court, at first instance it was found that the Tribunal was limited to taking into account the facts and circumstances as at the time of the decision made by the authority and not as at the time of the review (per Edmonds J), and that decision was upheld by a majority of the Full Court (per Nicholson and Tracey JJ; Downes J dissenting). The questions before the High Court were whether in the application for review the Tribunal was restricted to considering the facts and circumstances as they existed at the time of the Authority’s decision and whether the Tribunal had the power to impose certain conditions in relation to Mr Shi’s future conduct: Shi at [24] (Kirby J), at [81] (Hayne and Heydon JJ), at [116] (Crennan J) and at [119] (Kiefel J).

44    Kirby J did not consider that the language or purpose of s 303 supported a contention that “the review was limited to the particular time in the past when the decision was made” by the Authority: at [47], [49]-[50]. Hayne and Heydon JJ concluded that the provisions of the Act “contained no temporal element”: at [101]. The reasons of Kirby J and of Hayne and Heydon JJ did not seek to distinguish between the different grounds contained in s 303 as to which were temporally limited or not (though Hayne and Heydon JJ at [101] focussed upon the ground in s 303(1)(f)).

45    The decision of Kiefel J (with whom Crennan J agreed) identified a distinction between the ground in s 303(1)(f) and that in s 303(1)(h). In relation to the question of whether, for the purpose of s 303(1)(h), Mr Shi had complied with the Code of Conduct, Kiefel J held at [146] that the nature of this finding was confined to conduct that had occurred to a point in time, because the language of s 303(1)(h) was whether the relevant migration agent “had not complied with the Code of Conduct”, and noted that the Mr Shi had “accepted as much” in his submissions. This led her Honour to conclude that the question before the Tribunal in relation to s 303(1)(h) was not whether the applicant had breached the Code of Conduct “in any respect, but whether those identified by the Authority” were established: at [147]. However, in relation to s 303(1)(f), Kiefel J reasoned at [148]-[149] that the question of whether the relevant agent was not a person of integrity or not otherwise a fit and proper person was not temporally limited to a point in time.

46    In the proceedings before me, the applicant contended that Kiefel J’s reasoning at [147] in relation to the operation of s 303(1)(h)—that the review was confined to those identified by the Authority—applied, and that Rares J was correct in CPJ16 to have relied upon it to conclude that the review was confined to the character grounds found by the delegate. The Minister contended that Kiefel J’s reasons as to s 303(1)(h) were the minority view as the judgment of Kirby J and the joint judgment of Hayne and Heydon JJ did not come to that conclusion. For my part, I read Kiefel J’s reasons as expressing the minority view in relation to s 303(1)(h) in the result, but it does not matter. That is because I do not consider that Shi decided questions that are relevant to the disposition of the matter before me. The High Court was relevantly dealing with a question as to whether, on the proper construction of s 303, the Tribunal was confined to considering the facts and circumstances that prevailed as at the time of the decision as opposed to those that prevailed at the time of the review.

47    Despite this, in CPJ16, Rares J relied upon passages from Shi in support of the conclusions reached by his Honour. In particular, at [62], Rares J extracted the following passages from the decision of Hayne and Heydon JJ in Shi at [95]-[96]:

The decision which was the subject of the Tribunal’s review, and which is at the centre of the present proceedings, was a decision of the kind identified in s 303(1)(a) of the Migration Act – a decision to “cancel the registration of a registered migration agent by removing his … name from the register”. The grounds on which MARA acted in exercising that power were those identified in s 303(1)(f) and (h) – that MARA was satisfied that the appellant “is not a person of integrity or is otherwise not a fit and proper person to give immigration assistance” (para (f)) and that “the agent has not complied with the Code of Conduct prescribed under section 314” (para (h)).

The Tribunal’s task

In reviewing MARA’s decision to cancel the appellant’s registration, the Tribunal was empowered (by s 43(1) of the AAT Act) to exercise all the powers and discretions conferred by the Migration Act on MARA. The questions for the Tribunal in reviewing the cancellation decision were first, whether the Tribunal was satisfied that either of the s 303(1) grounds said to be engaged in this case was made out, and secondly, whether the Tribunal should exercise the powers given by s 303(1) to cancel or suspend the appellant’s registration or to caution him. That is, the first questions for the Tribunal were whether it was satisfied that the appellant “is not a person of integrity or is otherwise not a fit and proper person to give immigration assistance” and whether it was satisfied that the appellant had not complied with the Code of Conduct.

(Emphasis in original).

48    Rares J then extracted in CPJ16 at [63] and [65] the following passages from the decision of Kiefel J (with whom Crennan J agreed on this issue) in Shi at [142], [146]-[147]:

In considering what is the right decision, the Tribunal must address the same question as the original decision-maker was required to address [Hospital Benefit Fund (1992) 39 FCR 225 at 234]. Identifying the question raised by the statute for decision will usually determine the facts which may be taken into account in connection with the decision. The issue is then one of relevance, determined by reference to the elements in the question, or questions, necessary to be addressed in reaching a decision. It is not to be confused with the Tribunals general procedural powers to obtain evidence. The issue is whether evidence, so obtained, may be taken into account with respect to the specific decision which is the subject of review.

[…]

The question which here arose for the Authority under s 303(1), which it answered, was whether it should exercise its powers, under paras (a) to (c) of the sub-section, because the grounds in paras (h) and (f) were established, in particular because the appellant had breached the Code of Conduct. That part of the decision which comprises the finding, that the ground in para (h) had been made out, was referable to conduct which had occurred to a point in time. That is the nature of the finding required by the provision. It follows that the Tribunal was restricted to a consideration of events to that point and not those occurring later, in determining for itself whether there had been non-compliance with the Code. The appellant accepted as much in his submissions.

The question for the Tribunal is not whether there has been a breach by the appellant of the Code in any respect, but whether those identified by the Authority are established. It may use its own evidence-gathering powers to further inform itself about those matters, but those powers do not translate to general investigatory powers and cannot be used to ascertain other, inculpatory, conduct.

(Emphasis in original).

49    Rares J observed at [64] that none of the justices in Shi “suggested that the Tribunal was at large to consider, on the review, the grounds that the decision-maker could have, but did not, determine adversely to the person seeking the review” and acknowledged that this was not in issue before the High Court, stating that “this possibility did not appear to have been expressly in issue before the High Court”. Despite acknowledging these matters, Rares J concluded as follows at [66]:

I am of opinion that the Tribunal’s task in determining, on a review, what is the correct or preferable decision must be connected to the grounds of the decision to exercise the statutory power the subject of the review, as exposed in the statement of the delegate’s findings and reasons, so that the character of the review can be shaped by that consideration. Once the challenged ground for the decision-maker’s exercise of his or her power is identified, the Tribunal must make its decision having regard to the evidence, submissions and factual context at the time of its decision: Shi 235 CLR at 329–330 [146]–[149].

50    It appears that Rares J relied upon Shi in support of the conclusion in the first sentence of the extracted paragraph. However, as his Honour acknowledged at [64], this was not a matter that was addressed by the High Court in Shi. The High Court was not determining the question of whether the scope of the review was confined to the two grounds upon which the Authority had been satisfied that Mr Shi’s registration should be cancelled – that question did not arise because the Tribunal did not make findings outside the two grounds that the Authority had relied upon. Further, it is also evident that to the extent that Kiefel J reasoned in Shi at [147] (being a passage relied upon by Rares J in CPJ16 and the applicant in this case before me), that the “question for the tribunal is not whether there has been a breach by the appellant of the Code in any respect, but whether those identified by the authority are established”, her Honour was addressing the question as to the temporal limitation arising from s 303(1)(h) and which was a minority view in the result. To the extent that it was not the minority view, it was at best obiter given that her Honour proceeded on the basis as expressed in Shi at [146] that the applicant, Mr Shi, had accepted that point.

51    For these reasons, I am persuaded that I should not follow CPJ16.

52    Returning to the present case, as I have already mentioned, the decision under review here was that made under s 501CA(4) not to revoke the original decision to cancel the applicant’s visa. The text of s 501CA(4)(b)(i) makes it plain that critical to that decision was whether the Minister or the delegate was satisfied that the applicant passed the character test as defined by s 501. Section 501(6) contains a definition of the character test, which enumerates several different circumstances where an applicant may, or will, fail the character test. In respect of this aspect of the decision, the Tribunal was to stand in the shoes of the delegate to remake that decision, which necessarily involved an examination of whether the applicant had failed the character test. As was recognised in HZCP at [58], it is possible that the Tribunal may come to a different view to the delegate as to whether the applicant failed to pass the character tests on different grounds to those found by the delegate, if at all. It may be that (as discussed further in my consideration of Ground 2), to the extent that the Tribunal made an adverse finding to the applicant that he failed the character test on separate or additional grounds, this was a matter which the Tribunal was obliged, as a matter of procedural fairness, to draw to the applicant’s attention. However, for the reasons stated above, I consider that the question of procedural fairness is distinct in this case to the question of the scope of the review.

53    Nor do I consider that the scheme of the Act which enables the applicant to make representations under s 501CA(3) alters the result. As the Minister submitted, the appellant was entitled to make those representations to the delegate as to why the Original Cancellation Decision should be revoked. Those representations formed part of the material before the Tribunal, but there was additional material before the Tribunal including the parties’ respective SFICs and evidence called by or on behalf of the applicant. The Tribunal had to make the statutory decision by reference to all of this material. It was the Tribunal’s statutory function to form its own view as to the correct or preferable decision and, in undertaking that task, it was legitimate for the Tribunal to be guided by the parties as to the salient issues and to accept relevant admissions: Perpetual Trustee Company (Canberra) Ltd v Commissioner for Australian Capital Territory Revenue (1994) 50 FCR 405 at 418-419.

54    I also do not regard ss 501(6H) and (6J) as operating in a way so as to limit the scope of the review to the matters determined by the delegate. As the High Court made clear in Uelese at [57], s 500(6H) should not be construed to restrict the flexibility of the Tribunal to ensure procedural fairness to the parties to a review beyond what is required by its terms. The provision does not fetter the power of the Tribunal to adjourn a review, so as to ensure that the review is conducted thoroughly and fairly. Sections 500(6H) and (6J) do not restrict the operation of the AAT Act in respect of the obligations imposed on the Tribunal to ensure that every party to a proceeding is given a reasonable opportunity to present their case, to adjourn proceedings, or to require any party to provide further information in relation to a proceeding: Uelese at [57], [70], [77]; and DOM19 at [17] and [32].

55    For the above reasons, the Tribunal did not exceed its jurisdiction by asking itself the “wider question” of whether the applicant failed the character test on grounds other than those on which the delegate had relied. Accordingly, Ground 1 fails.

C.    GROUND 2

56    Ground 2 arises from the same subject matter as Ground 1. It raises the issue of whether, by not putting the applicant on notice that a critical issue on the review was whether he did not pass the character test because of the grounds identified in ss 501(6)(c), (d)(i) and (d)(ii), the Tribunal denied the applicant procedural fairness.

C.1    The parties’ submissions

57    The applicant contended that neither the original notice of cancellation nor the delegate’s Non-Revocation Decision raised issues as to whether: (a) the applicant was of good character, and (b) whether there was a risk he would commit a criminal offence or harass, molest, intimidate or stalk another person if he were allowed to remain in Australia. The applicant submitted that the only particulars given in the Minister’s invitation under s 501CA(3)(b) related to the ground of s 501(6)(a). That invitation relevantly stated as follows:

Failure to pass the character test

Based on the information before the Department, the decision maker (who is a delegate of the Minister) was satisfied that you do not pass the character test on the following ground:

You have a substantial criminal record within the meaning of s 501(6)(a) on the basis of s 501(7)(c) of the Act.

…

58    Therefore, the applicant submitted that he was denied the opportunity to make representations and adduce evidence in relation to whether he was a person of good character (by the common meaning of that term) and the risk of him engaging in future conduct of the kind identified in ss 501(6)(d)(i) and (d)(ii). The applicant further contended that the Tribunal did not raise with him that it was considering making these adverse findings against him. In those circumstances, the applicant contended that by asking itself the “wider question” of whether the applicant did not pass the character test by operation of ss 501(6)(c), (d)(i) and (d)(ii) of the Act, the Tribunal denied him procedural fairness.

59    The Minister submitted that the invitation to the applicant pursuant to s 501CA(3)(b) relevantly stated that s 501CA(4) provided for the Minister to revoke a decision under s 501(3A) if satisfied that the former visa holder “passes the character test (as defined by s 501 of the Act)” or there is another reason why the cancellation decision should be revoked. The Minister contended that this put the applicant on notice that the delegate might find against him on other grounds under s 501(6).

60    The Minister said that the common law hearing rule generally requires an administrative decision-maker to “identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made”: Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 592 (Northrop, Miles and French JJ); see also SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 at [29] (Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ). It was contended that an administrative decision-maker, therefore, is under no obligation to expose an issue to a party where the issue is apparent from the terms of the statute under which it is made: Milne v Minister for Immigration and Citizenship [2011] FCAFC 41; (2011) 120 ALD 405 at [54] (Ryan, Bennett and Edmonds JJ). The Minister submitted that the reference in Alphaone to “the statute” is not just to the four corners of the governing Act (which relevantly includes the reference in s 501CA(4)(b)(i) to the character test “as defined by s 501”, which in turn picks up ss 501(6)(c) and (d)) but also subordinate legislation (such as Direction 99, the terms of which made plain that the character test in decision-making under s 501CA(4)(b)(i) is broader than that which applies to mandatory cancellation decisions).

61    The Minister further contended that the applicant was aware that the Tribunal was required to consider his history of offending and risk of reoffending (being mandatory factors prescribed by Direction 99) in making a decision under s 501CA(4), and that the applicant addressed those issues. The Minister submitted that it was because of the applicant’s past conduct and risk of reoffending that the Tribunal found that he was not of good character and posed a risk of committing a criminal offence, or harassing, molesting, intimidating or stalking another person. It was contended that the characterisation of the applicant’s conduct as falling foul of ss 501(6)(c), (d)(i) and (d)(ii) of the Act was but “an obvious and natural evaluation” of evidence going to those issues: Alphaone at 591.

62    In argument before me, Counsel for the Minister fairly accepted that the Tribunal did not raise with the applicant that it might find that the applicant had failed to pass the character test on the grounds set out in ss 501(6)(c), (d)(i) and (d)(ii) of the Act. However, the Minister submitted that there was no procedural unfairness in the Tribunal not indicating to the applicant in advance of making its decision that it was proposing to find that he did not pass the character test on the grounds identified in ss 501(6)(c), (d)(i) and (d)(ii).

63    The Minister submitted that, in any event, because the Tribunal’s findings on the grounds identified in ss 501(6)(c), (d)(i) and (d)(ii) were separate from, and independent of, its finding on the ground in s 501(6)(a), the applicant suffered no practical injustice. The Minister contended that the applicant still failed to pass the character test on the ground identified in s 501(6)(a) (which is not under challenge in this proceeding (cf Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123 at [35] (Kiefel CJ, Gageler and Keane JJ), [41] (Nettle J), [79] (Edelman J)), and none of the alternative findings made on the grounds specified in ss 501(6)(c), (d)(i) and (d)(ii) had any bearing on the Tribunal’s consideration of the “primary” and “other” considerations listed in Direction 99 and its assessment of whether there was “another reason” to revoke the cancellation decision. It was contended that, having regard to the “historical facts that have been determined” (MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 273 CLR 506 at [38] (Kiefel CJ, Gageler, Keane and Gleeson JJ); Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 276 CLR 80 at [32] (Kiefel CJ, Keane and Gleeson JJ), [46], [55] (Gageler J)), it cannot be said that by not inviting the applicant to make submissions on the grounds specified in ss 501(6)(c), (d)(i) and (d)(ii) he was deprived of the realistic possibility of a different decision on the review.

64    In reply, the applicant contended that if the Court was satisfied that there had been a denial of procedural fairness, it was the type of error identified in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 98 ALJR 610 at [6] that is jurisdictional “irrespective of any effect the error might or might not have had on the decision that was made in fact”. The applicant contended that by asking itself the “wider question” the Tribunal denied the applicant the realistic possibility of a favourable outcome. The applicant contended this is so because it was only after finding that the applicant did not pass the character test that the Tribunal proceeded to ask whether there was “another reason” to revoke the cancellation decision. The applicant contended that the Tribunal’s finding that he was not of good character and might commit further criminal offences if allowed to remain in Australia impacted the Tribunal’s consideration of whether there was “another reason”. It was submitted in this regard that a finding that the applicant was not a person of “good character” was one which accepted that the applicant did not have the “enduring moral qualities” of a person of “good character”: see Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 at 431 (Lee J).

65    During the hearing before me, I asked Counsel for the applicant to identify any part of the Tribunal’s reasons that might disclose that its findings on the “character test” impacted on the Tribunal’s assessment of the considerations arising from Direction 99: at T30.36-37. Counsel for the applicant submitted that this required proof of a negative: T31.1-7. I made orders for the filing and service of supplementary submissions including to permit the applicant an opportunity to further address the question of materiality. In those supplementary submissions, the applicant submitted as follows:

7. In the present case, the Tribunal found at [44] that, in addition to not passing the “character test” because he has a “substantial criminal record”, the applicant also did not pass the “character test” because he was not a person “of good character” (para 501(6)(c)) and “there is a risk that he would commit a criminal offence or harass, molest, intimidate or stalk another person if he were allowed to remain in Australia” (subparas 501(6)(d)(i) and (ii)).

8. Both of these additional findings were broader than the finding that the applicant had a “substantial criminal record”. A finding that the applicant was not a person of good character is a finding as to the applicant’s “enduring moral qualities” [Irving v Minister for Immigration, Local Government and Ethnic Affairs [1996] FCA 663; (1996) 68 FCR 422]. Past criminality does not necessarily establish bad character because people can rehabilitate. And a finding in relation to subpara 501(6)(d)(ii) encompasses conduct which may not constitute a criminal offence.

9. In the applicant’s submission, the Tribunal making findings in excess of its jurisdiction on review (Ground 1 of the originating application) was necessarily material because the Tribunal simply did not have authority to make the decision it did. Such an error is of the kind identified by the High Court in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [[2024] HCA 12] at [6] (first sentence). And, in any case, the fact that the Tribunal made these broader findings at [44] as to the applicant not being a person of good character and being at risk of harassing, molesting, intimidating or stalking another person would necessarily would [sic] have had an impact on its consideration of its application of Direction 99 and, in particular, “protection of the Australian community …” (Direction 99 at [8.1]).

10. And in relation to denial of procedural fairness (Ground 2 of the originating application), the applicant submits that, if given the opportunity to respond to the new character grounds, as a matter of reasonable conjecture, he would have taken up that opportunity and there was a realistic possibility that evidence or submissions as to his character and risk of harassing, molesting etc another person may have affected the Tribunal’s consideration of “protection of the Australian community …”.

(Footnotes inserted in square brackets).

66    In response to these matters, the Minister contended that the applicant suffered no “practical injustice” and that the applicant had not pointed to any aspect of the Tribunal’s determination of the matters arising from Direction 99 that could have realistically been different. It was submitted that there was an ample body of evidence upon which the Tribunal relied in its determination of the matters arising from Direction 99.

C.2    Consideration as to denial of procedural fairness

67    Procedural fairness requires that a person be provided a fair opportunity of being heard. What is necessary and appropriate to ensure a fair hearing depends on the particular factual and statutory context, the rules of procedural fairness being flexible and adaptable so as to be appropriate in a given case and so as to avoid practical injustice: SZBEL at [26] and [29]; Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252 at [19]-[20]; Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 at [37]-[38].

68    What is required in order to ensure that the decision is made fairly in the circumstances will depend on the legal framework and factual context within which the decision is to be made: Minister for Immigration and Border Protection v WZARH [2015] HCA 40; (2015) 256 CLR 326 at [30] (Kiefel, Bell and Keane JJ); SZBEL at [26]. Whilst it must depend on the particular statutory context, procedural fairness would generally require that the person affected be “given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material”: Alphaone at 590-591; SZBEL at [32].

69    The Full Court in Alphaone also stated at 591 (drawing upon the decision of Jenkinson J in Somaghi v Minister for Immigration, Local Government and Ethnic Affairs (1991) 31 FCR 100 at 108-9):

1.    The subject of a decision is entitled to have his or her mind directed to the critical issues or factors on which the decision is likely to turn in order to have an opportunity of dealing with it…

2.    The subject is entitled to respond to any adverse conclusion drawn by the decision-maker on material supplied by or known to the subject which is not an obvious and natural evaluation of that material…

(Citations omitted).

70    The Full Court further stated at 591-592:

As Gummow J there said (at 359):

… in a particular case, fairness may require the applicant to have the opportunity to deal with matters adverse to the applicant's interests which the decision maker proposes to take into account, even if the source of concern by the decision maker is not information or materials provided by the third party, but what is seen to be the conduct of the applicant in question.

Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision maker. It also extends to require the decision maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question. For a statutory exception to the latter proposition see the pre-decision conference process provided for in the Trade Practices Act 1974 (Cth).

(Emphasis added).

71    These principles have been applied to applications for review of decisions made under s 501CA(4) of the Act: see Manebona v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 116; (2023) 298 FCR 516 at [149]-[151]; Korat v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 59 at [26]-[28].

72    In the present case, I am satisfied that the applicant was denied procedural fairness. Both the Original Cancellation Decision and the Non-Revocation Decision were made on the basis that the applicant had failed to pass the character test on the basis of a “substantial criminal record” within the meaning of s 501(7). Those Decisions were not made on the basis that the applicant had failed to pass the character test on any of the other grounds enumerated in s 501(6) of the Act. The Tribunal’s finding that the applicant also failed the character test on the basis of the grounds in ss 501(6)(c), (d)(i) and (d)(ii) of the Act were critical issues that were decided adversely to him and to which his mind was not directed so as to give him an opportunity to deal with them.

73    I do not accept the Minister’s contention that, on the facts of this case, it was apparent from the terms of the statute that the Tribunal could or would find that the applicant failed to pass the character test on grounds different or in addition to those found by the delegates who made the Original Cancellation Decision and Non-Revocation Decision. Nor do I accept that the terms of the statute were such that the prospect of such an adverse conclusion was disclosed to the applicant. I do not accept these arguments for the following reasons.

74    First, whilst I accept that following the Original Cancellation Decision, the letter issued to the applicant inviting him to make representations under s 501CA(3)(b) broadly put the applicant on notice that he had failed the character test, it did so on the basis that the applicant had a “substantial criminal record”. In practical terms, there was little that the applicant could say against the finding that he had a “substantial criminal record” given the custodial sentence he was serving or had served. More to the point, nothing in the letter of invitation directed his attention to any other basis upon which it was found that he failed the character test.

75    Second, I also accept that when the applicant subsequently made representations and sought a revocation of the Original Cancellation Decision, the power he was seeking be exercised was the one contained in s 501CA(4) of the Act which makes it plain that the Minister may revoke the original decision if the Minister is, relevantly, satisfied that the person “passes the character test (as defined by section 501)”. I accept that the nature of the statutory scheme so enacted was one whereby the applicant was aware that the Minister needed to be satisfied that he passed the character test as defined in s 501. However, the Non-Revocation Decision was determined on the basis that the applicant had failed the character test because of his “substantial criminal record” and not on any other basis.

76    Third, it follows that by the time the applicant made an application for review under s 500(1)(ba), on the facts here, given the Original Cancellation Decision and the Non-Revocation Decisions were made on the basis of his “substantial criminal record”, there was nothing to suggest that the applicant could or would fail the character test on different grounds.

77    Fourth, in conducting the review under s 500(1)(ba), the Tribunal had to afford procedural fairness. The Act did not expressly provide that the Tribunal had to invite the appellant “to give evidence and present arguments in relation to the issues arising in relation to the decision under review”: cf ss 360(1) and 425(1) of the Act and SZBEL (concerning a Part 7 review). However, the Tribunal was required to ensure that the appellant was given a reasonable opportunity to present his case: s 39(1) of the AAT Act; Nathanson at [7].

78    Fifth, nothing in the Minister’s SFIC or the conduct of the hearing before the Tribunal (including in the matters raised by the Tribunal Senior Member) put the applicant on notice or directed his mind to the prospect that it might be found that he failed to pass the character test on different grounds to his “substantial criminal record”.

79    Finally, it is relevant that the grounds in ss 501(6)(c), (d)(i) and (d)(ii) are expressed as follows:

Character test

(6)     For the purposes of this section, a person does not pass the character test if:

…

(c)     having regard to either or both of the following:

(i)    the person’s past and present criminal conduct;

(ii)    the person’s past and present general conduct;

the person is not of good character; or

(d)    in the event the person were allowed to enter or to remain in Australia, there is a risk that the person would:

(i)    engage in criminal conduct in Australia; or

(ii)    harass, molest, intimidate or stalk another person in Australia; or

…

Otherwise, the person passes the character test.

80    As will be apparent from the text of s 501(6)(c), an applicant may fail the character test because it is concluded that the person is not of “good character” as a result of either or both of that person’s past and present “criminal conduct” or “general conduct”. Whilst it may have been apparent to the applicant that having engaged in criminal conduct, his character was in question by reason of that “criminal conduct”, nothing in the Original Cancellation Decision or the Non-Revocation Decision put him on notice that he was not a person of “good character” by reason of his “general conduct”. Nor was there anything raised in the Tribunal hearing that so directed his mind to this issue. As Counsel for the applicant, in my view, correctly submitted, a finding that the applicant was not a person of “good character” is one tantamount to a finding that the applicant did not have the “enduring moral qualities” of a person with good character: see Irving at 431.

81    The Minister submitted that it would have been apparent to the applicant and his representatives from the primary considerations raised by Direction 99 including as to the protection of the Australian community and the risk of reoffending that the applicant would need to generally address his character and, in particular, whether there was a risk of him harassing, molesting, intimidating or stalking another person in Australia. I do not accept this argument. The text and structure of s 501CA(4)(b) separate the question of satisfaction as to the character test (sub-section (i)) from the other reasons why the original decision should be revoked (sub-section (ii)). The issue here was whether the applicant failed on the first limb of s 501CA(4)(b) for reasons different or in addition to those found by the earlier delegates. The applicant was denied the opportunity of addressing that issue as his mind was not directed to it.

82    In my view, the applicant was entitled to have his mind directed to the adverse conclusion that the Tribunal was proposing to find that he may also fail the character test on the basis of the grounds in ss 501(6)(c), (d)(i) and (d)(ii).

83    Accordingly, I am satisfied that the applicant was denied procedural fairness and that the Tribunal erred in this regard.

C.3    Consideration as to materiality

84    Having concluded that there was error, the question that arises is whether it was material.

85    In LPDT, it was held by the plurality (Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ) at [5]-[6] that:

Determining whether an error exists as well as whether it is jurisdictional starts with an analysis of the nature of the error alleged in the statutory context within which the decision has been made. Given the broad range of decisions in which errors might be made, the large variety of statutory schemes in which those decisions might be made, and the range of circumstances which may attend the making of any particular decision, it is impossible to divine a rigid classification of the errors that constitute jurisdictional errors. There are no bright lines to be drawn - “[t]he nature of the error has to be worked out in each case concerning a specific decision under a particular statute”.

In some cases, where an error is established, the error will be jurisdictional irrespective of any effect that the error might or might not have had on the decision that was made in fact. In other cases, the potential for an effect on the decision will be inherent in the nature of the error. An example of the former is apprehended or actual bias. An example of the latter is unreasonableness in the final result. In such cases, the error necessarily satisfies the requirement of materiality.

86    The plurality proceeded to state at [15]-[16] that:

What must be shown to demonstrate that an established error meets the threshold of materiality will depend upon the error. In some cases, it will be sufficient to show that there has been an error and that the outcome is consistent with the error having affected the decision. Where the error is a denial of procedural fairness arising from a failure to put the applicant on notice of a fact or issue, the court may readily be able to infer that, if fairly put on notice of that fact or issue, the applicant might have addressed it by way of further evidence or submissions, and that the decision-maker would have approached the applicant’s further evidence or submissions with an open mind. In those cases, it is “no easy task” for the court to be satisfied that the loss of such an opportunity did not deprive the person of the possibility of a successful outcome. Importantly, a court called upon to determine whether the threshold has been met must be careful not to assume the function of the decision-maker: the point at which the line between judicial review and merits review is crossed may not always be clear, but the line must be maintained. This case affords an example.

In sum, unless there is identified a basis on which it can be affirmatively concluded that the outcome would inevitably have been the same had the error not been made, once an applicant establishes that there has been an error and demonstrates that there exists a realistic possibility that the outcome of the decision could have been different had that error not been made, the threshold of materiality will have been met (and curial relief will be justified subject to any issue of utility or discretion).

(Emphasis added).

87    The applicant contended that the error here was in the category identified in LPDT at [6] where it was jurisdictional irrespective of any effect that the error might have had on the decision that was made. The applicant further contended that as there was here a denial of procedural fairness, it would be “no easy task” to be satisfied that the loss of the opportunity did not deprive the applicant of the possibility of a successful outcome.

88    The question raised by LPDT at [16] requires consideration of whether there is the “realistic possibility” that the outcome of the decision “could have been different” had the relevant error not been made. Another way of saying this, as the plurality put it at [16], is being “affirmatively” satisfied that the outcome “would inevitably have” been the same had the error not been made. In both formulations, the focus is upon the outcome, which is the outcome of the decision under review. Here, the decision under review was made under s 501CA(4), which is as follows:

(4)    The Minister may revoke the original decision if:

(a)    the person makes representations in accordance with the invitation; and

(b)    the Minister is satisfied:

(i)    that the person passes the character test (as defined by section 501); or

(ii)    that there is another reason why the original decision should be revoked.

89    As I have mentioned, the text and structure of s 501CA(4)(b) is such that a revocation decision requires the Minister and, in turn, the Tribunal on review, to be satisfied of one of the two matters specified in that sub-section. The first is satisfaction as to the character test and the second is satisfaction that there is another reason why the original decision should be revoked, which in this case called for consideration of the matters specified in Direction 99. In the present case, a consideration of whether the relevant error was material needs to consider the impact of that error on the outcome, which requires attention being given to both the limbs in s 501CA(4)(b). I need to be affirmatively satisfied that the outcome on those limbs would have been the same had the error not been made or that there exists a realistic possibility that it could have been different.

90    Importantly, in assessing whether the decision could realistically have been different, the inquiry that is posited is “backward-looking” by reference to “the decision that was made and, depending on the nature of the error, how that decision was made”: LPDT at [10]. This requires an examination of how the Tribunal in fact made its decision without assuming the “function of the decision-maker”: LPDT at [15].

91    In the present case, I am satisfied that the error was not material in the way addressed in the LPDT at [15]-[16] for the following reasons.

92    First, as the Tribunal found that the applicant did not satisfy the character test on the basis of a “substantial criminal record” (which was the same basis as that identified by the delegate), this was sufficient for the Tribunal to be satisfied that the applicant had failed the character test for the purpose of s 501CA(4)(b)(i).

93    Second, relatedly, whilst the Tribunal found that the applicant “also fails the test on other grounds”, this amounted to additional (“also”) and separate (“other”) grounds for finding that the applicant did not pass the character test. In other words, the applicant had failed the character test for the purpose of s 501CA(4)(b)(i) irrespective of these additional and separate grounds.

94    Third, as a result of the first two reasons, I am affirmatively satisfied that the Tribunal would have inevitably come to the same conclusion as to whether the applicant failed to pass the character test for the purpose of s 501CA(4)(b)(i).

95    Fourth, I do not accept the applicant’s contention that the Tribunal’s findings in relation to the character test “would have had an impact on its consideration of its application of Direction 99”. In assessing the applicant’s contention, I have examined the Tribunal’s reasons as to how the Tribunal in fact made its decision: LPDT at [15]. In my examination of the reasons in this way, I do not see any indication that the Tribunal’s conclusions about the applicant having failed the character test, or having failed the character test on particular grounds, were brought to bear in the Tribunal’s decision making in relation to the factors arising from the application of Direction 99.

96    By way of summary, the Tribunal reasoned as follow:

(a)    at AAT [46], the Tribunal turned its mind to the “any other reason” question, noting that this required it to apply Direction 99.

(b)    at AAT [47]-[63], the Tribunal considered primary consideration 1, the protection of the Australian community. In doing so, the Tribunal had regard to the applicant’s “considerable offending”. The Tribunal gave consideration to the nature and seriousness of the applicant’s conduct to date, including that he had been guilty of violent crimes, and in particular of a serious crime of violence against a female partner. The Tribunal considered this offence to be very serious. The Tribunal also noted the applicant’s drug offences, as well as his theft and dishonesty offences. The Tribunal then had regard to the risk to the Australian community should the applicant commit further offences or engage in other serious conduct, taking into account the nature of the harm to individuals or the Australian community should the behaviour be repeated, and the likelihood of the applicant repeating his behaviour. The Tribunal assumed a “low risk” in respect of the applicant’s drug, theft and dishonesty offences, but considered that there could be “most serious consequences” if the family violence offences were to be repeated. The Tribunal acknowledged that the applicant had undertaken a number of courses, had been judged suitable for parole and his behaviour in jail and immigration detention had been without incident. However, the Tribunal considered the applicant’s risk of recidivism to be substantial, including due to his failure to express remorse for his offending and his having breached an AVO within six days of it having been made in Court in his presence. The Tribunal concluded that there was a substantial risk of the applicant reoffending.

(c)    at AAT [64]-[66], the Tribunal turned to primary consideration 2, being family violence. The Tribunal noted that the applicant was guilty of family violence on two occasions. The Tribunal accepted that recent efforts had been made by the applicant to address factors contributing to this conduct. However, the Tribunal concluded that there had not been substantial rehabilitation, including because the applicant failed to accept responsibility for his violence against his partner.

(d)    at AAT [67]-[69], the Tribunal considered primary consideration 3, the strength, nature and duration of ties to Australia. The Tribunal noted that the applicant had spent almost all his adult life in Australia, and a substantial period of his childhood; that he would have good work prospects if he were re-released into the Australian community; that he would lose the possibility of one-on-one contact with his children and grandson if he were returned to New Zealand; and that the majority of his extended family live in Australia. The Tribunal stated that this consideration counted substantially in the applicant’s favour.

(e)    at AAT [70]-[73], the Tribunal considered primary consideration 4, the best interests of minor children. The Tribunal noted that the applicant has five minor children including a grandson, that all of the children are of Aboriginal descent, and that they should have, where possible, good and productive contact with their biological parents. The Tribunal considered that these factors generally weighed in the applicant’s favour.

(f)    at AAT [74]-[76], the Tribunal considered primary consideration 5, the expectations of the Australian community. The Tribunal noted that the Australian community expects non-citizens to obey Australian laws while in Australia, and that where a non-citizen has engaged in serious conduct in breach of this expectations, the Australian community “as a norm” expects the government to remove the non-citizen. The Tribunal also noted that, under the Direction, acts of family violence and the commission of serious crimes against women are instances of offences where the Australian community expects the government to cancel a visa. The Tribunal stated that this consideration weighed substantially against the applicant.

(g)    at AAT [77]-[81], the Tribunal turned to consider “other considerations”. The Tribunal considered that the only relevant other consideration was the extent of impediments the applicant would face if he were removed to New Zealand. The Tribunal considered that there are quite serious impediments to the applicant re-establishing himself in New Zealand, including that he has few family members in New Zealand, would be reliant on the social welfare system for housing, and would have the ongoing impediment of a shoulder dislocation which may impact his ability to find work. The Tribunal concluded that the impediments on return consideration weighed substantially in the applicant’s favour.

(h)    at [82]-[86], the Tribunal turned to balancing and weighing all of these considerations. The Tribunal noted the factors which weighed in favour of revocation, being: the difficulties faced by the applicant in his formative years; that the applicant had shown himself capable of working effectively; that there had been times in his life where there has not been criminal offending; that he had sufficient insight to appreciate that alcohol and drug misuse had been harmful; that his personal prospects for building a better life are more likely to be fulfilled in Australia than in New Zealand, where he would face immediate impediments; that the interests of his Aboriginal Australian children favour his remaining in the Australian community; and that he had been ordinarily resident in Australia during and since his formative years. The Tribunal noted the following factors which weighed “very seriously” against revocation, being: the applicant’s family violence; his breaching the AVO; that the applicant remained a substantial risk to the community; and that the expectations of the Australian community counted substantially against him remaining in Australia. On balance, the Tribunal considered that the correct or preferable decision in the applicant’s case did not favour non-revocation of the cancellation decision, notwithstanding the personal hardship he would face and the disadvantage to his children, grandchild and other family members.

(i)    at [87], having reached that conclusion, the Tribunal affirmed the non-revocation decision.

97    This analysis of the actual reasons of the decision made by the Tribunal does not disclose that it brought to bear upon its determination of the various issues arising under Direction 99 any of its findings as to the applicant having failed to pass the character test, or the grounds upon which he had failed the character test. The latter findings were independent to the former. As is evident from the above, the Tribunal turned its attention to each of the considerations arising from Direction 99 in a way that was independent to its findings about the applicant having failed the character test.

98    During oral argument before me, the Minister fairly drew attention to footnote 45 to the final sentence in AAT [44] (extracted above at [12]), which cross-referred to AAT [58] and following in respect of the applicant’s “future risk”. The Minister submitted that, rather than showing that the Tribunal’s findings as to character under ss 501(6)(c), (d)(i) and (d)(ii) were brought to bear when the Tribunal came to consider the primary and other considerations later in its reasons, this footnote indicates that the Tribunal’s conclusions about the primary and other considerations subsequently led it to find that there were additional reasons why the applicant failed the character test. I accept this submission. It accords with the decision that the Tribunal actually made. Having considered and weighed the primary and other considerations arising under Direction 99, it appears to me that the Tribunal subsequently concluded that, in addition to having failed the character test on the ground in s 501(6)(a), the applicant also failed that test on the grounds in ss 501(6)(c), (d)(i) and (d)(ii), and cross-referenced its findings at AAT [58] and following to substantiate that conclusion.

99    In those circumstances, and having regard to my analysis of the Tribunal’s reasons for decision, I am affirmatively satisfied that, although the Tribunal erred in denying the applicant procedural fairness in relation to its findings that the applicant failed the character test on the grounds in ss 501(6)(c), (d)(i) and (d)(ii), the ultimate outcome would inevitably have been the same. Had the error not been made, the applicant would still have failed the character test on the ground in s 501(6)(a), and the Tribunal’s consideration of whether there was “any other reason” why the applicant’s visa should not have been cancelled would have been unchanged. Put another way, I am not satisfied that there exists a realistic possibility that the outcome of the decision could have been different had the Tribunal not denied procedural fairness to the applicant.

100    In coming to this conclusion, I am conscious of the statement made by the plurality in LPDT at [15] that, where there has been a denial of procedural fairness, it is “no easy task” for the Court to be satisfied that the loss of such an opportunity did not deprive the applicant of the possibility of a successful outcome. My examination of the reasons of the Tribunal disclose that the applicant was not deprived of such a possibility—he had failed to pass the character test for another reason (being his substantial criminal record) for the purpose of s 501CA(4)(b)(i) and the considerations arising from Direction 99 were independently found to have not given rise to another reason why the Original Cancellation Decision should be revoked for the purpose of s 501CA(4)(b)(ii).

101    For those reasons, Ground 2 fails.

D.    GROUND 3

102    Ground 3 raises the issue of whether the Tribunal failed to consider one of the applicant’s representations, namely, that he had chronic osteoarthritis in his hips which was an impediment to his being returned to New Zealand.

D.1    The parties’ submissions

103    The applicant submitted that, in making representations to the Minister pursuant to the invitation given under s 501CA(3)(b) of the Act, the applicant represented in terms that his chronic osteoarthritis was an impediment to his return to New Zealand (the Representation). The applicant submitted that this was also a clearly articulated claim made to the Tribunal (the Claim).

104    The applicant submitted that the Tribunal did not evaluate or deal in any substantial way with the Representation or the Claim in its reasons. Specifically, the applicant submitted that:

(a)    there is no reference to the Representation or the Claim anywhere in the Tribunal’s reasons;

(b)    there is no reference to the applicant’s chronic osteoarthritis anywhere in the Tribunal’s reasons;

(c)    even if referred to, the Tribunal failed to deal with the Representation or the Claim in its substantive reasoning; and

(d)    the Tribunal made findings which were inconsistent with it having been cognisant of the Representation or the Claim. Namely, the Tribunal found at [67], [78] and [82] that the applicant could continue to work as a roofing contractor in circumstances where the applicant said in a letter in support of his request for revocation that he stopped work in 2017 “because of” his chronic osteoarthritis.

105    The applicant relied on the High Court decision in Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 275 CLR 582 at [24], where the plurality (Kiefel CJ, Keane, Gordon and Steward JJ) stated:

Consistently with well-established authority in different statutory contexts, there can be no doubt that a decision-maker must read, identify, understand and evaluate the representations. Adopting and adapting what Kiefel J (as her Honour then was) said in Tickner v Chapman, the decision-maker must have regard to what is said in the representations, bring their mind to bear upon the facts stated in them and the arguments or opinions put forward, and appreciate who is making them.

(Emphasis added).

106    The applicant also relied on the Full Federal Court decision in Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 172; (2021) 287 FCR 294 at [30], where the Court (Burley, Colvin and Jackson JJ) stated:

What is required, is consideration of a kind that means that the Minister’s state of satisfaction is formed after, at least, an evaluation of the persuasiveness (in the view of the Minister) of each reason of significance that is prominently put forward in the representations as a reason why the original decision to cancel the visa should be revoked. Where there are a number of reasons put forward then they should all be considered together. If the Minister is of the view that there are countervailing reasons that affect whether the reasons advanced by the person concerned are sufficient to be ‘another reason’ then the persuasiveness to the Minister of the reasons advanced by the representations is to be evaluated by a process whereby those reasons and the countervailing reasons are all considered.

107    The applicant submitted that, had the Tribunal in this case given proper, genuine and realistic consideration to the Representation or the Claim, the Tribunal would have been required to make its own assessment of the weight that was to be given to it. The applicant contended that, such consideration not having been given, the applicant was denied the possibility of a favourable outcome.

108    The Minister’s response to this ground was that, as at the date of the Tribunal’s decision, the written claims made by the applicant in his request for revocation of the cancellation decision and in his SFIC before the Tribunal had been overtaken by the oral evidence that he gave at the hearing. The Minister relied on the following exchanges which took place in cross-examination between the Minister’s representative and the applicant (at T42.10-43.02, 43.44-44.20):

… And then I couldn’t ride the bike anymore because I needed a hip operation, so then from there, that’s when I got my first hip done, and then I went back to the roofing again for another five, six years with my cousin and that until my hip went out again. And then I’ve been out of work since 2017 and I’ve only just got my hip done again, so yes, willing to back to go back to work again.

Did you say you have been able to work since 2017, or haven’t been able to work, sorry?---Haven’t been able to work since 2017. That’s when my hip started playing up and everything else, and I’ve been on the waitlist ever since, and I’ve just got it done now.

In January?---January this year, yes. Six years later, yes.

Yes, yes. You – pardon me. Mr Smith, do you agree that you could use all of these skills that we just talked about? So you talked about doing some childcare stuff, roofing with uncle, you did removalist work, you worked in a delicatessen at Woolworths. Do you agree, now that your hip is better, that you could do these things in New Zealand?---No, not really, because – no, I wouldn’t be able to find the employment over there. Where I stay, there’s no employment. I don’t have anywhere to stay in there, for starters. There’s no one really to live with, and I won’t have – really have a house to stay at, anyway.

…

I’m going to ask the tribunal to find that if you are returned to New Zealand, you’d be able to use these skills – so removals, roof restoration, Woolworths, childcare – to find employment in New Zealand, and that might be anywhere in New Zealand, including Auckland. Is there anything that you’d like to say about that?---No, well. The main problem would be – is staying somewhere and finding an employment over there. But at the end of the day, like, if I was to be removed from here, to focus on any of those things would be my second-to-none to even worrying about it because I would be more focused on, like, losing my kids over here and everything that I’ve promised over here. So me going forward over there, I don’t think it’ll be a great deal of me progressing to go forward over there.

…

MR GOODWIN: Thank you, Mr Smith – Senior Member, rather. Mr Smith, I want to ask you some questions now about your health. So we’ve talked before about how you’ve had hip problems. Is that from osteoarthritis?---Yes.

And you had one done in 2014, and you had another one done in 2023?---Yes.

Are they feeling better now?---Yes, they’re good as gold, yes.

Good as gold. Are you still talking any treatment for them?---I just take Panadol Osteo.

Was that Panadol, sorry?---Panadol Osteo.

Panadol Osteo?---But that’s not what – sorry, no, no. That’s not for the hip. That’s for my shoulder.

Your shoulder, yes. And you’re saying that your hip is good enough now and your shoulder is good enough that you could go back to work at Bunnings or at a roofing company?---Yes.

Yes. So other than Panadol Osteo for your shoulder, are you taking any other medication at the moment?---No.

(Emphasis added).

109    The Minister also submitted that, in his closing submissions to the Tribunal, the applicant’s representative addressed the extent of the impediments that the applicant may face if returned to New Zealand, but did not submit that osteoarthritis in his hips was one such impediment: T142.06-42.32.

110    Therefore, the Minister submitted that, as at the date of the Tribunal’s decision there was no extant claim that the applicant’s osteoarthritis in his hips was an impediment to his return to New Zealand. It is for that reason that the Tribunal appears not to have mentioned the applicant’s earlier claim expressly.

111    The applicant submitted in reply that nothing in oral evidence before the Tribunal amounted to an unequivocal withdrawal of the Representation or Claim. He further submitted that, while the Tribunal did not have to accept the Representation or Claim, it did have to consider it, and the fact that the Tribunal did not refer to or deal with the Representation or Claim gives rise to an inference that it was not considered.

D.2    Consideration

112    I am not satisfied that Ground 3 is made out. On my reading of the exchange in cross-examination extracted above, any representation or claim concerning an impediment arising from osteoarthritis in the applicant’s hip effectively fell away and became a non-issue given that the applicant’s evidence was that the relevant medical condition was not an impediment to his return to New Zealand. Given that evidence, it was no longer a claim being made. For that reason, there was no “substantial, clearly articulated claim relying upon established facts” for the Tribunal to consider, as the premise to such a claim had been overtaken by supervening events (the applicant’s operation) and his acceptance that he could work: see Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 26; (2003) 77 ALJR 1088 at [24] (Gummow and Callinan JJ), [95] (Hayne J); SZUTM v Minister for Immigration and Citizenship [2016] FCA 45; (2016) 241 FCR 214 at [38]. In those circumstances, the Tribunal was not obliged to consider this representation in its reasons.

113    Further, the Tribunal considered the impediments arising from the applicant’s medical issues, including his suffering from seizures and a dislocated shoulder at AAT [79]. This indicates that the Tribunal was aware of so much of the applicant’s medical issues to which he pointed as being an impediment to his removal to New Zealand. The inference can readily be drawn that the Tribunal did not consider the applicant’s history of osteoarthritis in his hip to be a matter material to its consideration as to whether there was any other reason why the cancellation decision should be revoked as it did not logically arise given the applicant’s evidence. Based on the materials before the Tribunal, including the applicant’s oral evidence, this was a conclusion that was available, having regard to the supervening event of the applicant’s evidence before the Tribunal.

114    I discern no error. Accordingly, Ground 3 fails.

E.    DISPOSITION

115    In light of the preceding reasons, the application for judicial review should be dismissed with costs.

Associate:

Dated:        19 June 2024