Federal Court of Australia

Thompson v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 776

ORDERS

THE COURT ORDERS THAT:

1.    The time by which the applicant had to lodge an application for the review of the migration decision of the Administrative Appeals Tribunal (Tribunal) made on 11 January 2023 affirming the decision of the delegate of the first respondent not to revoke the cancellation of the visa held by the applicant, be extended to 3 April 2023.

2.    A writ of certiorari issue to the Tribunal to quash its decision made on 11 January 2023 affirming the decision not to revoke the cancellation of the visa held by the applicant.

3.    The matter be remitted to the Tribunal to reconsider and re-determine the application for review according to law.

4.    The parties are to confer and seek to reach agreement on any orders for costs pursuant to any conditional costs agreement.

5.    If agreement cannot be reached on the matter identified in Order 4 of these orders within 14 days of the delivery of judgment, the parties are to arrange for this matter to be relisted and provide short minutes and brief submissions in support of the competing orders that they seek.

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

REASONS FOR JUDGMENT

HALLEY J:

A.     Introduction

1    By an amended originating application for review filed on 22 September 2023 (amended application), the applicant, John Thompson, seeks judicial review of a decision of the second respondent, the Administrative Appeals Tribunal (Tribunal) affirming a decision made by a delegate of the first respondent, the Minister for Immigration, Citizenship and Multicultural Affairs (Minister) not to revoke a decision to cancel the applicant’s visa under s 501CA(4) of the Migration Act 1958 (Cth) (Act). The applicant also seeks an extension of time to lodge an application for a review of the decision made by the Tribunal.

2    The Tribunal has filed a submitting notice in these proceedings.

3    The amended application raises two grounds of review:

(a)    the Tribunal constructively failed to exercise its jurisdiction by failing to properly balance the relevant considerations; and

(b)    the Tribunal erred in denying the applicant procedural fairness by failing to respond to substantial, clearly articulated arguments.

4    The applicant seeks an order that the decision of the Tribunal be quashed, and for the matter to be remitted to the Tribunal for determination according to law.

5    The Minister contends that the grounds of review do not identify any jurisdictional error by the Tribunal, and that the amended application should be dismissed with costs.

6    For the reasons that follow, I have determined that the applicant should be granted an extension of time to file an application for review of the decision of the Tribunal, the application should be allowed on the second ground of review relied on by the applicant and the matter should be remitted to the Tribunal for determination according to law.

B.     Background

7    The applicant was born in New Zealand in 1983 and is of Samoan origin.

8    In June 2001, the applicant moved to Australia as an 18 year old and has substantially resided in Australia since that time.

9    On 10 September 2001, the applicant was granted a Class TY 444 Special Category (Temporary) visa.

10    On 26 June 2003, the applicant commenced a relationship with his then partner, who is now deceased (Deceased).

11    On 15 June 2004, the applicant’s son (and only biological child) with the Deceased was born in Australia.

12    In 2005, the applicant was convicted of a series of criminal offences, including behaving in an offensive manner in or near a public place or school, assaulting an officer in execution of duty, resisting an officer in execution of duty, and destroying or damaging property.

13    On 30 August 2005, the applicant was convicted of assault and destroying or damaging property in an act of domestic violence against the Deceased. He was placed on a bond for 12 months, and the Deceased was granted an apprehended domestic violence order, which prohibited the applicant from approaching her within 12 hours of consuming alcohol.

14    On 28 January 2006, the applicant murdered the Deceased.

15    On 8 November 2007, the applicant pleaded guilty to the criminal offence of murder.

16    On 14 March 2008, the applicant was sentenced to 20 years’ imprisonment, with a non-parole period of 15 years.

17    On 15 March 2019, the applicant’s visa was mandatorily cancelled pursuant to s 501(3A) of the Act for failing to pass the character test (cancellation decision).

18    In April 2019 and July 2020, the applicant made representations to the Minister seeking revocation of the cancellation decision, pursuant to s 501CA(4) of the Act.

19    On or about 4 October 2022, a delegate of the Minister (Delegate) made a decision not to revoke the cancellation decision under s 501CA(4) of the Act.

20    On or about 27 October 2022, the applicant lodged an application for a review of the Delegate’s decision in the Tribunal.

21    On 11 January 2023, the Tribunal affirmed the Delegate’s decision not to revoke the cancellation decision, and published its reasons on 8 February 2023: Thompson v Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 96 (Decision or DR).

C.     Legislative framework

22    Section 501(3A) of the Act provides:

(3A) The Minister must cancel a visa that has been granted to a person if:

(a) the Minister is satisfied that the person does not pass the character test because of the operation of:

(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or

(ii) paragraph (6)(e) (sexually based offences involving a child); and

(b) the person is serving a sentence of imprisonment, on a full‑time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.

23    Section 501CA(4) of the Act provides:

(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.

24    In exercising the power under s 501(CA)(4)(b)(ii) of the Act, the delegate of the Minister and the Tribunal were required, at the relevant time, to comply with “Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA” (Direction 90), being a direction made by the Minister under s 499 of the Act: FHHM v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2022] FCAFC 19 at [6]-[7] (O’Callaghan and Colvin JJ, Derrington J agreeing at [55]).

25    Paragraph 8 of Direction 90 sets out four primary considerations that the decision maker is required to take into account:

(1)    protection of the Australian community from criminal or other serious conduct;

(2)    whether the conduct engaged in constituted family violence;

(3)    the best interests of minor children in Australia;

(4)    expectations of the Australian community.

26    Paragraph 9 of Direction 90 sets out five other considerations, which must also be taken into account:

a)    international non-refoulement obligations;

b)    extent of impediments if removed;

c)    impact on victims; and

d)    links to the Australian community, including:

i)    strength, nature and duration of ties to Australia;

ii)    impact on Australian business interests.

27    Paragraph 7(2) of Direction 90 provides that the primary considerations should generally be given greater weight than the other considerations.

D.     The Tribunal’s reasons

28    The applicant does not challenge the Tribunal’s finding at DR [10] that the effect of s 501(6)(a) and s 501(7)(c) of the Act is such that the applicant has a “substantial criminal record” and therefore does not pass the character test.

29    In considering the exercise of the discretion under s 501CA(4) of the Act, the Tribunal considered the factors relevant to each of the primary considerations set out in paragraph 8 of Direction 90, and concluded as follows:

(a)    the factors in paragraph 8.1.1 of Direction 90 (being the first primary consideration), in their totality, weigh very heavily against revocation of the cancellation decision: DR [49]-[76];

(b)    the factors in paragraph 8.2(3) of Direction 90 (being the second primary consideration), in their totality, weigh very heavily against revocation of the cancellation decision: DR [77]-[89];

(c)    the factors to be taken into consideration with respect to the third primary consideration, being the best interests of minor children in Australia, have limited weight in favour of revocation of the cancellation decision: DR [90]-[109]; and

(d)    the fourth primary consideration, being the expectations of the Australian community, weighs very heavily against revocation of the cancellation decision: DR [110]-[117].

30    The Tribunal then turned to consider the other considerations set out in paragraph 9 of Direction 90, and summarised its findings at DR [134] as follows:

(a)     international non-refoulement obligations: not relevant;

(b)     extent of impediments if removed: carries some weight in favour of exercising the discretion to revoke the mandatory cancellation of the Applicant’s visa;

(c)     impact on victims: not relevant; and

(d)     links to the Australian community: carries some weight in favour of exercising the discretion to revoke the mandatory cancellation of the Applicant’s visa.

31    The Tribunal then concluded as follows:

137    The Tribunal considers that the totality of the very heavy weight it has attributed to Primary Consideration’s 1, 2 and 4, outweighs the weight it has allocated to the remaining Primary and Other Considerations.

138     A holistic view of the considerations in the Direction therefore favours the non-revocation of the mandatory cancellation of the Applicant’s visa.

139    Consequently, the Tribunal cannot exercise the discretion to revoke the mandatory cancellation of the Applicant’s visa.

E.     Extension of Time

32    Section 477A(1) of the Act provides that an application to this Court for judicial review of a migration decision must be made within 35 days of the decision.

33    Section 477A(2) of the Act provides that this Court may make an order extending time if it is satisfied that it is necessary in the interests of justice to do so.

34    The discretion to extend time is not confined by any express criteria, but the following considerations may be taken into account in the exercise of the discretion: (a) the length of the delay, (b) whether an acceptable explanation has been provided for the delay, (c) whether the respondent would suffer prejudice as a result of the grant of an extension of time, and (d) the merits of the substantive appeal, if an extension of time were to be granted: JSMJ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1466 at [23] (Perry J).

35    In an application for an extension of time filed on 30 March 2023, together with an affidavit dated 20 March 2023, the applicant provided the following reasons for needing an extension of time:

•    did not have legal representation to help find the right documents that were needed to fill out & send in.

•    did not have AAT’s Reasons for Decision in time.

•    thought I had the right forms, but found out that they were wrong.

•    during first weeks of the 35 days that I was given, I commenced the lowering of my Methadone dosage, from which I experienced mild to mid levels of withdrawal.

•    Did not understand a lot of the language I encountered while trying to seek out what I needed to.

•    received assistance literally a day before the deadline, when a Mr Andrew Harris, who had just recovered from Covid 19,managed to find out that if we filled out the right forms explaining Why we were out of time, then we would be ok.

•    It [wasn’t] until some time after this in which I was advised to contact the NSW Registry ,by Mr Harris- that I was able to acquire the necessary help ,advise & support , in which I have been able to accomplish this much thus far, of which I am grateful.

•    Also awaiting to receive 2x medical reports supplied from a medical professional ,confirming how this entire ordeal, of my possible removal from this country, is having a negative impact on both my partner & our 13 year old daughter.

36    The Minister does not oppose the extension of time sought, and I am satisfied that it is necessary in the interests of justice to make an order to extend the time for the applicant to file the amended application, as (a) the delay is moderate (46 days), (b) the applicant has provided an explanation for the delay, (c) the Minister accepts that they are not prejudiced by an extension of time being granted, and (d) the Minister accepts, and I am satisfied, that at least one of the grounds of review sought to be advanced is at least arguable.

F.     Grounds of Review

37    The amended application sets out two grounds of review, as follows:

3.     The Tribunal constructively failed to exercise its jurisdiction by failing to properly balance the relevant considerations to decide whether or not to exercise the s 501CA(4) discretion.

Particulars

1.    A delegate of the Minister for Home Affairs cancelled the applicant’s visa in accordance with s 501(3A) of the Act.

2.    In undertaking the statutory task under s 501CA(4) of the Act, the Tribunal must comply with Direction 90;

3.    The Tribunal must meet the requirements of the Direction to take into account the considerations identified in the Direction, where relevant to the decision.

4.    The Tribunal does not comply with the Direction by focussing upon individual considerations and attributing some form of “weight” to that consideration viewed in isolation (Reasons at [136]-[139]).

5.    The Tribunal should have brought together the considerations as part of a single evaluation of their relative significance, thereby weighing them all together.

4.     The Tribunal denied the applicant procedural fairness by failing to respond to substantial, clearly articulated arguments that his return to New Zealand would harm his relationship with his minor child.

Particulars

1.    A delegate of the Minister for Home Affairs cancelled the applicant’s visa in accordance with s 501(3A) of the Act.

2.    The applicant was invited to make representations pursuant to s 501CA(3) of the Act as to why the decision to cancel his visa should be revoked.

3.    The Tribunal was obliged to respond to substantial, clearly articulated arguments relying upon established facts.

4.    There were representations before the Tribunal to the effect that the applicant’s relationship with his minor child would be harmed if he were to return to New Zealand (Court Book 100, 108, 110-1).

5.    The Tribunal failed to respond to that argument.

F.1.     Failure to balance the relevant considerations

38    In this ground, the applicant contends that the Tribunal constructively failed to exercise its jurisdiction by failing to balance the relevant considerations in deciding whether or not to exercise the discretion under s 501CA(4) of the Act.

F.1.1.     Relevant principles

39    In CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138, a Full Court of this Court said at [35] (Colvin, Stewart and Jackson JJ):

The balancing process is directed to determining whether there is “another reason” why the visa cancellation should be revoked. It requires an identification of the matters that may constitute “another reason” and bringing to bear the considerations that the Direction requires the Tribunal to take into account where relevant in determining whether or not the Tribunal is satisfied that there is another reason (or reasons) to revoke the visa cancellation. Some of the considerations set out in the Direction, where relevant, may weigh in favour of revocation, and so may constitute “another reason” capable of supporting the state of satisfaction required in order for revocation under s 501CA(4)(b)(ii) to occur. But whether they do qualify as a reason of that kind will need to be assessed in the context of different considerations set out in the Direction which may weigh against revocation, where relevant. That is why it is appropriate to describe it as a process of weighing and balancing. But to go beyond that to treat the Direction as mandating some sort of calculation of the net weight to be given to the considerations on each side is to lose sight of the ultimately evaluative nature of the statutory task.

40    The statutory task is not fulfilled by assigning a descriptor of weight, such as “strong”, “significant”, “considerable” or “moderate” to the different considerations, and then stating a conclusion as if that conclusion was made inevitable by the application of a mathematical formula: CRNL at [38].

41    In Demir v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 870, Kennett J said:

[21]     The metaphor of “weighing” relevant considerations should not be taken too literally. The exercise is not mathematical and cannot depend on the simple aggregation of factors on each side of a ledger. The conclusion as to whether there is “another reason” for the purposes of s 501CA(4)(b)(ii) necessarily involves persuasion of a human decision-maker, whose thought processes cannot be reflected in lines of code, as to what is the right result in the circumstances. That persuasion flows from the decision-maker’s personal understanding as to the significance of each of the factors they are required or permitted to take into account, in the light of all the material they have considered. So much is consistent with the decision-maker’s duty to “call his own attention to the matters which he is bound to consider” (Peko-Wallsend at 39 (Mason J), quoting Wednesbury at 229 (Lord Greene MR)) and to give “proper, genuine and realistic consideration to the merits of the case” (Khan v Minister for Immigration and Ethnic Affairs (unreported, Federal Court of Australia, Gummow J, 11 December 1987; noted (1987) 14 ALD 291 , 292). Correspondingly, the statutory specification of mandatory considerations requires those considerations to be taken into account, but not necessarily to be given any particular degree of weight: Telstra Corporation Ltd v Australian Competition and Consumer Commission [2008] FCA 1758; 176 FCR 153 at [110] (Rares J) (varied on appeal (Australian Competition and Consumer Commission v Telstra Corporation Ltd [2009] FCAFC 68; 176 FCR 203 ), but not on this point).

[22]     In the “real world” (to invoke the frequently cited statement by Hill J in Enichem ANIC Srl v Anti-Dumping Authority (1992) 39 FCR 458, 469), the ultimate decision as to which relevant factors are more important (and thus which side of the line a case falls) is likely to be instinctive, and correspondingly unlikely to be explained in granular detail. The thought process required of (and undertaken every day by) administrative decision-makers is therefore not something that can sensibly be dissected and identified as involving the impermissible attribution of excessive weight to a relevant factor. Attempting to do so takes the metaphor of “weighing” further than it can realistically go. If all of the mandatory considerations (and no irrelevant considerations) have been brought to bear, the ultimate synthesis — absent some statutory requirement to the contrary — is one for the decision-maker; and (aside from cases where legal unreasonableness is manifest in the outcome) the label “irrational” does not have any legal content when applied to that synthesis.

F.1.2.     The applicant’s submissions

42    The applicant submits that the Tribunal did not comply with Direction 90 by focusing upon individual considerations and attributing some “weight” to each consideration viewed in isolation.

43    The applicant relies on the reasoning in CRNL.

44    The applicant submits that there was no attempt by the Tribunal to undertake a “proper evaluation”, and the consideration given by the Tribunal could be described as being “perfunctory” or “formulaic”. He submits that the way the consideration was undertaken “appears to be very much in the way of a decisional checklist”.

45    The applicant submits that in order to correctly undertake its statutory task, the Tribunal needed to undertake a balancing process between each of the primary and other considerations as part of a single evaluation of their relative significance, thereby weighing them all together. He submits that this would have included a discussion of why certain matters were considered to be more or less important than others, when compared against the considerations.

46    The applicant submits that the nuances of the weighing process required explanation as between the importance and meaning of each of the considerations, and nothing was said about it, and the Tribunal accordingly fell into jurisdictional error.

F.1.3.     The Minister’s submissions

47    The Minister submits that the Tribunal summarised its findings by reference to the considerations under Direction 90, and critically, the Tribunal’s holistic consideration of the factors it was required to assess and weigh is demonstrated in its reasons at DR [137].

48    The Minister submits that the Tribunal’s analysis and expression of its conclusions was entirely orthodox and properly reflective of the balancing exercise the Tribunal was required to engage in for the purposes of forming a state of satisfaction under s 501CA(4)(b) of the Act.

49    The Minister submits that a similar complaint was rejected by a Full Court of this Court in DBWG v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 301 FCR 344; [2024] FCAFC 3 at [62] (Wigney, Wheelahan and Halley JJ).

50    The Minister submits that consistent with DBWG, the Tribunal’s conclusions were valid “interim steps” that informed and led to the Tribunal’s weighing exercise.

51    The Minister submits that CRNL is distinguishable, as the Tribunal’s reasons in CRNL lacked any indication that the Tribunal had actually weighed or balanced the identified considerations against one another, unlike the present case.

52    The Minister submits that the Tribunal did “bring together the considerations as part of a single evaluation of their relative significance thereby weighing them all together”. The Minister submits that the Tribunal’s assessment was neither “formulaic”, “perfunctory” or in the nature of a checklist.

F.1.4.     Consideration

53    The task of conducting a single evaluation requires a balancing of typically competing considerations with different significance depending on the particular factual context before the Tribunal. It is a qualitative not quantitative exercise. It requires the Tribunal to identify the matters that it has considered, assess their relative significance and then to weigh each of those matters against each other in a manner that is largely instinctive and not capable of precise articulation. Any reliance on the statements by the Full Court in CRNL to contend that a Tribunal has not undertaken a “proper evaluation”, or that its consideration was “perfunctory” or “formulaic” or “appears to be very much in the way of a decisional checklist”, must necessarily have regard to the reasoning of the Tribunal considered by the Full Court in that case.

54    In CRNL, the Tribunal had concluded as follows:

113.     I am now required to weigh all of the Considerations in accordance with the Direction:

(a)     Primary consideration 1: protection of the Australian community

For the reasons outlined above, I place considerable weight upon this consideration mitigating against revocation.

(b)    Primary consideration 2: family violence

I also place considerable weight upon this consideration weighing against revocation because of the nature of the family violence offences committed against both his current partner and at least one former partner, including breaching the conditions of FVOs.

(c)    Primary consideration 3: the best interests of minor children in Australia

I have found the revocation would be in the best interests of the Applicant’s children, and I place significant weight upon this consideration.

(d)    Primary consideration 4: the expectations of the Australian community

For the reasons outlined above I find this consideration weighs strongly against revocation especially bearing in mind the community’s attitude towards those who commit offences involving domestic violence.

114.    The Application of the Direction therefore favours the non-revocation of the cancellation of the Applicant’s visa.

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

55    As the Full Court stated in CRNL at [43], after the Tribunal had summarised and rephrased its earlier attribution of weight to each of the considerations, the Tribunal then simply concluded in [114] and [115] by the use of the words “therefore” and “consequently” that the visa cancellation should not be revoked. The Full Court held:

Such a conclusion does not inevitably or necessarily follow from those unexplained, un-balanced and unweighed descriptors of weight; it may be that such a conclusion is justified by what preceded it, but it is not apparent that the Tribunal undertook the required process of evaluation in order to reach its decision. It is not even apparent that the Tribunal considered that the weight of the primary considerations were compelling against revocation of the cancellation of the visa, since it placed “significant weight” on one of those considerations, the interests of minor children, as favouring revocation.

56    The Full Court’s observations at [28], that compliance with Direction 90 is not achieved by focusing upon individual considerations and attributing some form of “weight” to that consideration viewed in isolation, should be understood in that context. Critically, the Tribunal in CRNL ascribed weight to the various considerations, having considered each in isolation, and then expressed a conclusion “without demonstrating that it actually weighed the various considerations against each other”: CRNL at [44].

57    Subsequent first instance decisions of this Court have distinguished CRNL in circumstances where the Tribunal has expressly referred in its reasons to conducting a balancing exercise.

58    In PGDX v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 1259, the Tribunal had found that three of the primary considerations weighed substantially against revocation, and that these “considerably outweigh[ed]” the combined weight given to the primary consideration in favour of revocation. Justice Hespe considered that this “was not the result of a mathematical calculus but the result of the Tribunal ascribing less weight to the primary consideration of the best interests of the Applicant’s minor child in Australia and to the other countervailing considerations”: at [40].

59    In Afamiliona v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1100, the Tribunal had, after expressing its views and attributing weight to the various considerations, concluded “[o]n balance I find that the weight of the considerations set out in Direction 90 weigh in favour of affirming the reviewable decision”. Justice Jackman considered that the Tribunal engaged in “an evaluative task, exposing its reasons for the weight which it attributed to the various factors, which were then weighed in combination in reaching the Tribunal’s ultimate conclusion”: at [29].

60    In the present case, the Tribunal engaged in a detailed consideration of each of the primary and other considerations, described the weight it ascribed to each consideration and explained its reasoning in doing so, consistently with the conventional approach described in DBWG at [62]. Having done that, the Tribunal then concluded:

[137]     The Tribunal considers that the totality of the very heavy weight it has attributed to Primary Consideration’s 1, 2 and 4, outweighs the weight it has allocated to the remaining Primary and Other Considerations.

[138]     A holistic view of the considerations in the Direction therefore favours the non-revocation of the mandatory cancellation of the Applicant’s visa.

61    Unlike in CRNL, the Tribunal did not express a conclusion “without demonstrating that it actually weighed the various considerations against each other”.

62    For the foregoing reasons, ground 1 has not been established.

F.2.     Failure to respond to substantial, clearly articulated arguments

63    In this ground, the applicant contends that the Tribunal erred in denying the applicant procedural fairness by failing to respond to substantial, clearly articulated arguments that his return to New Zealand would harm his relationship with his son.

F.2.1.     Relevant principles

64    Where a reason is sufficiently identified and advanced in representations, discharging the statutory task requires that consideration is given to that reason: BCR16 v Minister for Immigration and Border Protection (2017) 248 FCR 456; [2017] FCAFC 96 at [62]-[63] and [72] (Bromberg and Mortimer JJ).

65    If a review of a decision maker’s reasons discloses that the decision maker ignored, overlooked or misunderstood a substantial and clearly articulated argument, that may give rise to jurisdictional error: Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582; [2022] HCA 17 at [27] (Kiefel CJ, Keane, Gordon and Steward JJ). Further, a failure to respond to “substantial, clearly articulated arguments relying upon established facts” may amount to a denial of procedural fairness: BKTS v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 729 at [86] (Perry J).

66    The nature, form and content of the representations made affects the Tribunal’s obligation to consider the representations. The requisite level of engagement required by the decision maker will depend on the nature, form and content of the representations. The degree of effort required from the decision maker will vary, depending on the length, clarity and degree of relevance of the representations. The decision maker is not required to consider claims that are not clearly articulated or which do not clearly arise on the materials before them: Plaintiff M1 at [25].

67    As a Full Court of this Court said in ECE21 v Minister for Home Affairs (2023) 297 FCR 422; [2023] FCAFC 52 at [7]-[8] (Mortimer, Colvin and O’Sullivan JJ):

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

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

F.2.2.     The applicant’s submissions

68    The applicant submits that he made a series of clear and direct representations to the Tribunal that if he were deported to New Zealand the prospect of him establishing a relationship with his son, Dylan, would be harmed. The applicant submits that this was because he considered that he needed to establish a relationship with his son “face to face” which would not be possible if he were in New Zealand.

69    The applicant submits that this represented an “asserted detriment of sufficient consequence” that the Tribunal was required to consider, but failed to do so. He submits that this failure went to the heart of the Tribunal’s statutory duty, namely, whether to revoke the cancellation decision for another reason.

F.2.3.     The Minister’s submissions

70    The Minister submits that this ground does not identify jurisdictional error by the Tribunal.

71    The Minister accepts that (a) the applicant made substantial, clearly articulated representations to the Tribunal as to why a cancellation decision should be revoked, and (b) the Tribunal would have failed to conduct its review in accordance with its statutory duty if it had overlooked the substantial, clearly articulated representations advanced by the applicant.

72    The Minister submits, however, that the nature, form and content of the representations made by the applicant dictate the scope of the Tribunal’s obligation to consider them.

73    The Minister submits that the “representations” themselves require close scrutiny. The Minister submits that it has no legal duty, referable to jurisdictional error, to ask for further representations from the applicant or to make inquiries into the representations he had made.

74    The Minister submits that the Tribunal, when considering the nature of the applicant’s ties to Australia, did take account of the applicant’s prospect of developing a relationship with Dylan by its finding at DR [130] that the applicant “does not presently have any contact with his son with the Deceased”.

F.2.4.     Consideration

75    In order to determine whether the Tribunal failed to consider a substantial, clearly articulated argument advanced by the applicant, it is first necessary to identify with precision the alleged argument and then determine whether it was a substantial argument that was clearly advanced by the applicant to the Tribunal.

76    The applicant contends in the amended application that the alleged substantial and clearly articulated argument that was advanced to the Tribunal was that “his return to New Zealand would harm his relationship with his minor child”. The reference to “his minor child” was clearly intended to be a reference to Dylan, but it erroneously identified him as a “minor child”. By the time of the hearing before the Tribunal, Dylan was 18 and no longer relevantly a “minor child”.

77    In the applicant’s oral submissions, made by his counsel at the hearing, the alleged substantial and clearly articulated argument was variously characterised as an argument that the applicant “would be denied an opportunity to build a relationship with his biological son”, would be denied “the ability … in the future, to establish a face-to-face relationship” and that his removal “would negatively affect his opportunity to develop a relationship with his son”. The various formulations culminated in the proposition that the argument that the Tribunal failed to address was:

I will be denied the opportunity to build a face-to-face relationship with my son, which is something that I say is important to me but I say is also important to my son.

78    There is some tension between the identification of the argument in the amended application and the formulation of the argument that was advanced in the applicant’s oral submissions. Harming a relationship and being denied an opportunity to establish a relationship are different propositions. The first proposition requires an existing relationship, the second proposition proceeds on the assumption that there is no existing relationship but there is a prospect that a relationship might be established in the future.

79    The Minister, however, did not suggest that there had been any reformulation of the alleged substantial and clearly articulated argument during the applicant’s oral submissions. To the contrary, the Minister, in effect embraced the reformulation by submitting that the substance of the representation made by the applicant to the Tribunal, and now to be addressed by the Court, was:

Dylan would be impacted by the applicant’s removal from Australia (as a consequence of a non-revocation decision) because it would deny Dylan the opportunity of establishing a relationship with his father.

80    The Minister’s formulation of the representation is consistent with the applicant’s ultimate formulation of the representation referred to at [77] above (No Opportunity Argument).

81    I am satisfied that the No Opportunity Argument accurately captures the argument that was put by the applicant to the Tribunal.

82    In his brief written submissions to the Tribunal the applicant submitted:

In preceding with this case, I would challenge:

.    8.3.4 -The best interest of a child, my stepdaughter

.    A statement made in the decision making process stating that I would have no support upon leaving gaol

.    The opportunity to develop a relationship with my son, given that he is now 18 years of age and the maternal families Apprehended Family Violence Order is no longer in effect

.     The negative impact on my partner

83    The submission in the third bullet point was directed at the loss of an opportunity to develop a relationship, it was not an allegation of harm to an existing relationship.

84    In addition to his written submissions to the Tribunal, the applicant also seeks to rely on the following representations made by the applicant and his partner, Monica Agudelo, in documents that were before the Tribunal in support of his contention that the No Opportunity Argument was a substantial and clearly articulated argument:

(a)    by the applicant in his personal circumstances form dated 15 April 2019 that Dylan, had “expressed extreme interest in creating an open & ongoing relationship” and:

The impact on my son Dylan is that I may never be able to establish a relationship & inform him face to face, the endearing qualities of his mother. Dylan is of the age where he has questions that require answers, these answers are not ones that can be answered in a letter or over the phone. In establishing our relationship with my son Dylan, this should be done face to face where I could express my contrition & support him in his life choices.

(b)    by the applicant in a letter dated 13 July 2020 that:

Monica and I have planned for when I am released to begin our new life together with our daughter Roselani & hopefully, Dylan as well.

(c)    by Ms Agudelo, in her letter of support dated 9 July 2020:

Both my partner and I are getting older and as time keeps passing by we are missing out on not being able to get our own place to share our love and support for our children as Dylan has missed out on having a mother, why make Dylan miss a Father he could have as he is growing up. I know that my partner John also grew up without his father and he does not want that for our children and if God permits for our own.

85    In my view the No Opportunity Argument was an argument that was clearly articulated to the Tribunal, by the applicant in his written submission to the Tribunal and in the representations identified in [84] above (Representations). Further, I accept, and the Minister accepted or did not contend to the contrary, that the loss of an alleged opportunity for a son to develop a face-to-face relationship with his father would be a substantial argument, particularly given the circumstances in which the applicant had not been able to develop a relationship with Dylan, at least in the period up to Dylan turning 18.

86    I note that the Representations were made to the Delegate at a time when Dylan was a minor child and therefore raised issues relevant to “Primary Consideration 3 – Best interests of minor children” in Direction 90. For present purposes, the No Opportunity Argument, as advanced to the Tribunal was relevant to the “Other Consideration – Strength, nature and duration of ties to Australia” in Direction 90. It is in that context, that it is necessary to determine whether the Tribunal failed to consider the No Opportunity Argument.

87    The Tribunal did not expressly refer to the No Opportunity Argument in its reasons.

88    The Tribunal’s consideration of the “Other Considerations – Strength, nature and duration of ties to Australia” ground was limited to the following reasoning:

128.    The strength, nature, and duration of ties to Australia

The Tribunal is bound to consider the impact of its decision on the Applicant’s immediate family members in Australia, where those family members have citizenship, permanent residency, or an indefinite right to remain in Australia. In guarding against repetition in considerations, there is limited scope for the Tribunal to take into account the considerations of an Applicant’s family where family members are also the Applicant’s victims.

129.    The Applicant has resided in Australia for over 20 years, although most of that period has been spent in custody. During his incarceration, the Applicant abused drugs and was involved in numerous infractions. This has limited the Applicant’s pro-social networks in Australia since his murder of the Deceased and his incarceration for that crime.

130.     The Tribunal notes that the Applicant does not presently have any contact with his son with the Deceased.

131.    The Applicant’s father and brother, and Ms Agudelo and the Child, will be most impacted by any decision to deprive the Applicant of the privilege of returning to the Australian community

132.    Accordingly, the Tribunal is satisfied that the Applicant’s strength, nature, and duration of his ties to Australia carry some weight in favour of exercising the discretion to revoke the mandatory cancellation of his visa.

(Footnotes omitted.)

89    Any specific consideration of Dylan’s position was confined to the observation at DR [130] that the applicant “does not presently have any contact with his son with the Deceased”.

90    The reasoning of the Tribunal with respect to the strength, nature and duration of ties to Australia consideration is directed at the impact on the applicant’s immediate family members if the applicant were removed from Australia. It is in that context that the Tribunal notes the absence of any present contact between the applicant and his son.

91    The applicant submits that, at most, the Tribunal addressed a necessary premise to the No Opportunity Argument, namely the applicant does not presently have any contact and therefore is concerned about being deprived of the opportunity to develop a relationship with his son in the future.

92    The Minister submits that the finding of the Tribunal has to be understood in the context of the submissions made to the Tribunal, including the following submissions in the Minister’s statement of facts, issues and contentions (SFIC) at [97]:

(b)    the Applicant’s son, Dylan, who is now an adult, has not made any representations in support of his father and has not been in contact with the Applicant since he has been in prison, noting however that the Applicant claims that Dylan reached out to the Applicant in 2018 but the Applicant was prevented from responding due to a court order prohibiting contact; and

(c)    while the Applicant claims this court order prohibited him from contacting Dylan until he was out of prison or until Dylan turned 18 (which, it is acknowledged, would have prevented their contact during this time), the Applicant has not provided any evidence indicating that he has attempted to contact Dylan since Dylan turned 18 in June 2022, despite the Applicant expressing a desire to form a relationship with his son.

(Footnotes omitted.)

93    The Minister submits that the finding by the Tribunal at DR [130] answers the issue as framed by both the applicant’s written submissions and in the SFIC at [97(b)] and [97(c)]. The Minister submits:

[T]he Tribunal’s findings at [130] constituted (at least) a non-acceptance of the applicant’s representations about the impact of non-revocation on Dylan. That is, the Tribunal found that there was no present contact between them (and one might infer, no basis upon which it could know whether such contact might be established in the future). It was unnecessary for the Tribunal to make more detailed findings in light of the representations as advanced.

94    The use of the language “does not presently have any contact” in the finding made by the Tribunal at DR [130] is inherently problematic. It could be construed as a reference to the absence of any contact in the period of nearly seven months between Dylan turning 18 on 15 June 2022 and the hearing before the Tribunal in January 2023. On Dylan turning 18 there was no prohibition on contact between the applicant and Dylan. The absence of any contact between the applicant and Dylan in that period was brought to the Tribunal’s attention in the SFIC at [97(b)] and [97(c)].

95    Alternatively, it could be construed as a reference to the absence of any contact between the applicant and Dylan since the murder of the Deceased at a time when Dylan was a young infant.

96    It could arguably also be construed as an indirect reference, as submitted by the Minister, to the significance of the absence of any present contact between the applicant and Dylan to the prospect of the establishment of a relationship between the applicant and Dylan in the future.

97    Such a contention, however, would enliven the concerns expressed by Markovic, Thomas and Button JJ in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 297 FCR 1; [2023] FCAFC 64 at [61], that giving an administrative decision maker’s reasons a beneficial reading does not permit a Court “to fill in gaps in the path of reasoning” and “a conclusion of error cannot be avoided on the basis that an impugned finding was open to the Tribunal if discharging the Tribunal’s statutory function required that it address certain matters en route to the finding in question”. The Full Court’s decision has been overturned by the High Court, but not on this point.

98    Their Honours also stated at [62]:

[U]nexplained findings in a decision-maker’s reasons will not usually avoid a finding of error where, on review, it is possible to posit a logical and legally available means by which the finding could have been reached.

99    The critical issue is that it is not apparent from the Tribunal’s reasons whether the finding at DR [130] was limited to a finding that given the lack of present contact between the applicant and Dylan, Dylan’s interests should be afforded little weight in assessing the weight to be given to the strength, nature and duration of ties to Australia consideration, or whether the finding was directed at the limited prospect of the applicant and Dylan establishing a relationship in the future. The latter alternative might demonstrate a consideration of the No Opportunity Argument, but not the former. In circumstances where the Tribunal did not make any explicit reference to the No Opportunity Argument, it is not apparent from the Tribunal’s reasons which alternative it was seeking to address. The Court cannot fill in gaps in the Tribunal’s reasoning on the basis that on review a logical and legally available rationale may have been open to the Tribunal to demonstrate that it had considered the No Opportunity Argument. In my view the finding at DR [130], therefore, cannot establish that the Tribunal had any regard to the No Opportunity Argument.

100    The generality in the manner in which the No Opportunity Argument was advanced might well have permitted the Tribunal to give it little weight. It did not, however, permit the Tribunal to fail to consider an argument that the Minister conceded, and I have found, to be a substantial, clearly articulated argument.

101    The Minister did not submit, and I do not consider, that any failure by the Tribunal to consider the No Opportunity Argument would not have been material.

102    The Minister also accepted, and in my view correctly, that if the Tribunal “overlooked”, as I have found here, a substantial, clearly articulated argument, then consistently with established authority it would have failed to conduct its review in accordance with its statutory duty: Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531; [2018] FCAFC 116 at [30] (Rangiah J); Minister for Immigration and Border Protection v DRP17 (2018) 267 FCR 492; [2018] FCAFC 198 at [47] (Jagot, Rangiah and Banks-Smith JJ); Minister for Home Affairs v Omar (2019) 272 FCR 589; [2019] FCAFC 188 at [37] (Allsop CJ, Bromberg, Robertson, Griffiths and Perry JJ); GBV18 v Minister for Home Affairs (2020) 274 FCR 202; [2020] FCAFC 17 at [32(d)] (Flick, Griffiths and Moshinsky JJ).

103    In my view, the jurisdictional error that I have found in this case is more accurately characterised as a failure by the Tribunal to conduct the review in accordance with its statutory duty, rather than a denial of procedural fairness.

104    For the foregoing reasons, ground 2 is made out.

G.     Disposition

105    For the foregoing reasons, the applicant is to be granted an extension of time to file the application for review, the decision of the Tribunal is to be quashed and the matter is to be remitted to the Tribunal for determination according to law.

106    It is also necessary to express the Court’s appreciation and gratitude to the applicant’s counsel, Mr T Bagley and Mr A Sivanathan, who appeared for the applicant pursuant to a pro bono referral from the Court.

Associate:

Dated:    18 July 2024