Federal Court of Australia

Luckman v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCA 851

ORDERS

THE COURT ORDERS THAT:

1.    The application be allowed.

2.    A writ of certiorari issue to quash the decision of the second respondent dated 24 January 2024.

3.    A writ of mandamus issue requiring the second respondent to determine the application according to law.

4.    The first respondent pay the applicant’s costs of the application to be taxed.

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

REASONS FOR JUDGMENT

DERRINGTON J:

Introduction

1    The applicant, Mr Alexander Luckman, seeks judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) made on 24 January 2024, wherein it affirmed the decision of a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (the Minister) not to revoke the mandatory cancellation of his Class TY Subclass 444 Special Category (Temporary) visa (the visa) under s 501CA(4) of the Migration Act 1958 (Cth) (the Act).

2    The substance of the application is that the Tribunal fell into jurisdictional error by failing, in two respects, to take into account certain alleged relevant considerations in the exercise of its discretion. Those considerations were contained in “Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA” which was issued on 23 January 2023 pursuant to s 499 of the Act (Direction 99). By the first ground of review, it is alleged that the Tribunal misunderstood the law as to what was required by paragraph 9.4(1) of Direction 99 and, therefore, did not have regard to a mandatory consideration. By the second ground of review, it is alleged that the Tribunal failed to consider the requirements of paragraph 8.3(1) of Direction 99. Each of these will be considered in turn.

Background

3    Mr Luckman is a New Zealand citizen who moved to Australia in 2007. He was granted the visa on 7 March 2020.

4    Mr Luckman has an extensive and serious criminal record. Whilst there is no need to set out the precise nature of his offending, it is relevant that since 2016 he has been found guilty of several offences including wilful property damage, possession of restricted substances, possession of weapons without permits, contraventions of prohibitions or restriction orders in apprehended violence orders, assault occasioning actual bodily harm, possession of dangerous drugs and utensils, using a carriage service to menace, harass or cause offence, breaches of bail conditions, committing public nuisances, common assaults in the domestic context and unlawful use of motor vehicles.

5    On 8 June 2022, he was convicted of a number of offences including unlawful use of a motor vehicle and common assault, for which he received head sentences of 18 and 12 months’ imprisonment respectively. Those terms were to be served concurrently.

6    As at 8 June 2022, he had already served 82 days in pre-sentence custody and this was counted as time served such that he was immediately released on parole.

7    On 1 February 2023, his parole order was revoked following his failure to comply with his parole conditions, and on 17 February 2023, he was returned to custody. On his release from prison, he was taken into immigration detention.

8    On 5 May 2023, his visa was mandatorily cancelled under s 501(3A) of the Act on the basis that he did not pass the character test (hereinafter, the “cancellation decision”). On 10 May 2023, he made a written request to the Minister for the revocation of the cancellation decision.

9    On 1 November 2023, the Minister’s delegate decided, pursuant to s 501CA(4) of the Act, not to revoke the cancellation decision.

10    Consequently, on 7 November 2023, Mr Luckman applied to the Tribunal for a review of the delegate’s decision.

11    A hearing took place before the Tribunal on 11 and 12 January 2024, at which Mr Luckman, his de facto partner, Ms Leah Martin, Ms Martin’s mother, and a friend of his, gave oral evidence. Written submissions were also relied upon by Mr Luckman and the Minister.

12    On 24 January 2024, the Tribunal decided not to revoke the cancellation decision. It published its reasons for that decision on 8 March 2024.

The Tribunal’s decision

13    Given the issues raised on the current application, there is no need to set out in any detail substantial portions of the Tribunal’s decision. However, it is appropriate to briefly identify certain salient parts.

14    After setting out the procedural background to the matter, the Tribunal summarised (at [13]) Mr Luckman’s extensive history of criminal offending.

15    It then identified (at [18]) the issues arising from the application of s 501CA(4) of the Act and noted (at [19]) that it was not in issue that Mr Luckman did not pass the character test. In light of this, it identified that its only task was to consider whether there was “another reason” why the cancellation decision should be revoked under s 501CA(4)(b)(ii). In doing so, it applied Direction 99, as some authorities in this Court indicate that it should.

16    After setting out the principles for assessment under the Direction, the Tribunal addressed the first of the “primary considerations” listed in section 8, being the protection of the Australian community from criminal or other serious conduct. It reviewed the many incidents of offending and other conduct by Mr Luckman and concluded that his offending was “very serious”. It considered his risk of reoffending and concluded (at [51]) that the first primary consideration weighed “very heavily” against revocation of the cancellation decision.

17    The Tribunal then observed that Mr Luckman’s conduct, which included domestic violence against his partners, met the concept of “family violence” referred to in the second primary consideration of Direction 99. It considered (at [56]) that this also weighed “very heavily” against revocation.

18    The next matter considered was the third primary consideration of Direction 99, being the strength, nature and duration of Mr Luckman’s ties to Australia, including by reference to his minor daughter. The Tribunal gave this criterion a “moderate” amount of weight in favour of revoking the cancellation decision (at [65]).

19    In relation to the issue of what was in the best interests of minor children, being the fourth primary consideration of Direction 99, it held (at [70]) that “moderate” weight should be given to this consideration in favour of revocation based on the interests of his daughter.

20    The Tribunal considered (at [75]) that the fifth primary consideration, being the expectations of the Australian community, required that “heavy weight” attach in favour of non-revocation of the cancellation decision.

21    It then turned to address the considerations identified in section 9 of Direction 99 as being “other considerations” which must be taken into account. Relevantly, those other considerations include the “impact on victims” (paragraph 9.3) and the “impact on Australian business interests” (paragraph 9.4).

22    In relation to the requirement to consider the impact of Mr Luckman’s criminal behaviour on his victims, Ms Martin, who has been a victim of his domestic violence, gave evidence that his removal would have an adverse impact on her, and that she would relocate to New Zealand to be with him if he were removed. The Tribunal gave “quite limited weight” to the impact on victims as being a consideration in support of revocation (at [88]).

23    The Tribunal also addressed the impact on Australian business interests (at [89] – [91]) and considered that this other consideration weighed “neutrally”.

24    On the weighing up of all the considerations specified by Direction 99, the Tribunal concluded (at [94]) that it should affirm the decision under review.

Ground one

25    The first ground of review raised is that the Tribunal misunderstood paragraph 9.4 of Direction 99 and, in particular, fell into error by perceiving that this consideration should only generally be given weight “where the decision under s 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia”. In particular, it was submitted that the Tribunal failed to take into account the impact that Mr Luckman’s removal would have on the businesses which he and Ms Martin had operated.

26    Paragraph 9.4 of Direction 99 provides:

9.4    Impact on Australian business interests

(1)     Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.

27    The Tribunal’s brief reasoning in relation to this consideration is found at [89] – [91] of its reasons, and it is appropriate to set out those passages in full. They read:

89.    Paragraph 9.4 of the Ministerial Direction requires that decision-makers must have regard to any impact on the interests of Australian business if the non-citizen is not allowed remain in Australia.

90.     The Applicant submits that in 2021 the Applicant commenced a business registered under the name ‘I help you Move’ and also worked as a sub-contractor to Allied Couriers moving antique furniture, on the Gold Coast. The Applicant submits that this business was financially viable for more than 12 months, prior to the Applicant’s incarceration such that this other consideration should be assessed as affording weight in favour of revocation of the visa cancellation decision.

91.     Paragraph 9.4(1) of the Ministerial Direction makes clear that this Other Consideration should only generally be given weight where the decision under section 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia. The Tribunal considers that the Applicant’s circumstances do not meet this requirement. Accordingly, the Tribunal finds that this is Other Consideration now weighs neutrally.

(Footnotes omitted and emphasis in original).

The operation of paragraph 9.4(1)

28    The operation of paragraph 9.4(1) and its progenitors has been the subject of several first instance decisions to which the parties referred.

29    In Singh v Minister for Home Affairs [2019] FCA 905 (Singh), Middleton J held (at [10]) that, in the application of a progenitor to paragraph 9.4(1), it was inappropriate to focus only on the delivery of a major project or delivery of an important service in Australia. The focus had to be on the impact on Australian business interests if the non-citizen’s visa was cancelled.

30    To similar effect is the decision of Rangiah J in Arachchi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 181 ALD 241. His Honour held (at 253 [68]) that another progenitor to paragraph 9.4(1) required the decision-maker to consider any impact on Australian business interests, and that consideration was not confined to business interests of a particular scale or importance. He recognised (at 253 [69] – [70]) that the clause specifically dealt with the circumstances of an “employment link”, being where an employer of the erstwhile visa holder will lose the benefit of the services of that visa holder if they are deported. In such circumstances, that loss of employment would only generally be given weight where it would significantly compromise the delivery of a major project, or delivery of an important service in Australia. However, he added that whilst the qualification only applied where there was a relevant employment link, decision-makers are not relieved from their obligation to consider impacts on any Australian business interests. His Honour also noted that while “generally” weight would only be given to the impact on business interests where the cancellation decision would significantly compromise the delivery of a major project or delivery of an important service in Australia, the Direction did not preclude decision-makers from giving weight to other impacts on business interests.

31    The decision in Singh was followed by Sarah C Derrington J in Tonga v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1179 [29] – [30]. There, her Honour said:

29    … Section 9.4.2 directs attention to two things:

(1)    any impact on Australian business interests; and

(2)    in circumstances where the non-citizen is an employee of an Australian business interest, weight is generally only to be given where there would be significant compromise of the delivery of a major project or important service.

30    So much is apparent from the judgment of Middleton J in Singh v Minister for Home Affairs [2019] FCA 905 at [10], albeit in respect of a precursor to Direction 90 in the same terms:

I can immediately say that the correct interpretation of the Direction is not to focus only on the delivery of a major project or delivery of an important service in Australia. The focus has to be on the impact on Australian business interests if the non-citizen’s visa is cancelled.

(Emphasis omitted).

32    The foregoing authorities, which were referred to with approval in a number of recent decisions, are consistent in their substantive effect, even if that effect is described slightly differently in each.

33    The overall concern of paragraph 9.4(1) is whether there is any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia. However, it makes particular provision for that which would be a common circumstance — being where, if the non-citizen is not entitled to remain in Australia, an Australian business would lose the opportunity to keep that person employed. That is referred to as the “employment link”. In those circumstances, the paragraph creates a general, albeit not universal, rule about when weight would be given to this factor. That is, where the non-citizen’s inability to remain in Australia would significantly compromise the delivery of a major project, or delivery of an important service in Australia. In those circumstances, the loss of the employee’s service would be significantly detrimental to Australia and, naturally, that will be given weight. The implicit converse is that generally, albeit not universally, the mere fact that an employer in Australia would lose the benefit of the non-citizen’s employment were they to be removed from Australia, will carry little or no weight.

34    There is inherent logic in the employment link aspect of paragraph 9.4(1). The consequence that an employer will lose the ability to engage the non-citizen if removed is something which will arise in a substantial majority of cases. Leaving to one side the expressly excepted circumstances of a person who was critically involved in the delivery of a major project or important service in Australia, the loss of the employment services of the non-citizen can usually be remediated by the engagement of another employee. In the context of determining whether that non-citizen should be granted a visa or have a cancellation decision revoked, the loss of their services could hardly be regarded as significant for the purposes of Direction 99.

35    However, outside of the “employment link” circumstances, paragraph 9.4(1) requires the decision-maker to consider “any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia”. That applies in circumstances where the non-citizen has operated their own business, either by themselves, in partnership or through a company.

36    Though it was not the subject of specific submission, it should be observed that paragraph 9.4(1) of Direction 99 contains an implicit identification of its relative weight when it applies. It makes it clear that, in the employment link context, it is only when there is serious disruption to Australian business interests that weight should be given to this factor. The bar is set relatively high in that it has to be shown that the non-citizen’s exclusion from Australia “would significantly compromise the delivery of a major project, or delivery of an important service in Australia” (emphasis added). By this, it would be insufficient if the non-citizen’s exclusion would only compromise the delivery of a project in a way that was not significant. That ascription of the importance of the impact on the loss of employment services of the non-citizen must necessarily colour the operation of the other limb of paragraph 9.4(1), being any other impacts on Australian business interests. Although it is of course dependent on the circumstances in each case, one might assume that any other impact would need to cause some substantial detriment, extending beyond damage to a particular business, for it to be of any great consequence.

Whether the Tribunal failed to consider the impact on business interests

37    In the present case, the Tribunal correctly set out the overall effect of paragraph 9.4(1) at [89] of its reasons. It then referred (at [90]) to Mr Luckman having commenced a moving business and that he worked as a subcontractor to Allied Couriers. It recorded his submission that the business was financially viable prior to his incarceration, as well as his submission that this matter should weigh in his favour.

38    However, in the following paragraph (at [91]), it held that paragraph 9.4(1) “makes clear that this Other Consideration should only generally be given weight where the decision under section 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia” (emphasis in original). On its face, that statement is incorrect. The qualification on the weight to be given to any impacts on business interests is only in respect of the “employment link” scenario. Here, where Mr Luckman started a business in his own name, he was not considered an employee, and the circumstances required to be considered by the Tribunal did not fall within an “employment link” scenario. The Tribunal was required to consider whether there was any impact on Australian business interests and, on the facts of this case, that meant considering the impact on the business which Mr Luckman and his partner had been operating. It is apparent that the Tribunal did not do that. Rather, it held that Mr Luckman’s circumstances did not meet “this requirement”, referring to the apparent requirement that, for weight to be given to his circumstances, the impact must have significantly compromised the delivery of a major project or delivery of an important service. As a result, it found that the consideration weighed neutrally.

39    It is self-evident that this was an incorrect application of this consideration in Direction 99, for the reasons which have been given. Contrary to a submission made on behalf of the Minister, the Tribunal’s short statement of the operation of paragraph 9.4(1) at [89] of its reasons is not sufficient to overcome this. Although the Tribunal is not obliged in its reasons to articulate the minutiae of its consideration or weighing processes, the Court is also not required to assume that the Tribunal correctly applied paragraph 9.4(1) when its reasons indicate to the contrary.

40    It follows that the Tribunal acted upon a misunderstanding of the requirement of paragraph 9.4(1), and did not address the mandatory consideration contained in it. It was required to take account of the impact of Mr Luckman’s removal from Australia on the business which he conducted with his partner, and it failed to do so.

41    This was an error which went to the Tribunal’s jurisdiction. Mr Byrnes, counsel for the Minister, did not suggest that any question of the materiality of the Tribunal’s error arose in this case: see LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610, 613 – 615 [3] – [14].

42    It is, perhaps, worth noting that the manner in which the Tribunal expressed its reasoning, and the limited conclusions which it made on its analysis, makes that concession entirely appropriate. In the absence of any differential indication of the manner in which it would have treated the impact on the business of Mr Luckman and Ms Martin were he to be removed from Australia, it is not possible to consider whether the decision that was in fact made could (not would) “realistically” have been different had there been no error. It should not pass without comment that there is nothing inherently wrong with decision-makers making differential findings in relation to issues on which they have some uncertainty. For instance, in a case similar to the present, had the decision-maker been aware of an issue of interpretation in relation to paragraph 9.4(1) of Direction 99, they might have made a finding that, if they had to consider the impact on the business of Mr Luckman and his partner, it would have been of such little weight that it would not have altered the overall conclusion. Had such a finding been made, it would have been possible to ascertain what the position would have been had the correct interpretation been adopted — namely, that the error was not material.

43    As it was, the Tribunal fell into jurisdictional error and the determination should be set aside for that reason. The matter must be remitted to the Tribunal for determination according to law.

Supplementary submissions

44    Shortly after the hearing in this matter, the solicitors for the applicant drew the Court’s attention to three decisions which were published after the hearing and which were said to be relevant to Mr Luckman’s first ground of review. Those were Ross v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 734, Tabuarua v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 748 and Verrill v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 802. The above decisions confirm the construction of paragraph 9.4 of Direction 99, though that was not seriously in doubt.

45    The parties provided short written submissions to the Court in relation to these decisions. Overall, the decisions do not alter the submissions previously advanced and the conclusions reached above. Each decision is distinguishable from the present case; it is the reasoning of the Tribunal in this case that is critical to the above conclusions.

Ground two

46    By his second ground of review, Mr Luckman submitted that the Tribunal failed to take into account, as a mandatory primary consideration in paragraph 8.3(1) of Direction 99, the adverse financial impacts on his partner, Ms Martin.

47    Paragraph 8.3(1) of the Direction provides:

Decision-makers must consider any impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.

48    It is important to note that, relative to earlier iterations of the Direction, paragraph 8.3(1) has been elevated to a primary consideration.

The case advanced before the Tribunal

49    The case advanced by Mr Luckman before the Tribunal regarding the financial and emotional hardships suffered by Ms Martin, as it appears in his statement of facts, issues and contentions (SFIC), was at odds with the submissions made on this application. The matters raised in Mr Luckman’s SFIC substantially mirrored the matters set out in Direction 99 and adopted the same headings. He made no claim that the Tribunal should consider the financial and emotional hardships which would be endured by Ms Martin as part of its obligation to address the primary considerations of Direction 99. All that was relevantly said was raised in relation to the “other considerations” in Direction 99. Namely, that Ms Martin “depends on [Mr Luckman] financially and emotionally.” Whilst the Tribunal is not bound by what is put to it by the parties and is obliged to apply Direction 99 to the circumstances as they emerge from the material before it, it is worth noting that those acting for Mr Luckman did not suppose that the matters now relied upon in respect of the application were of any significance when the SFIC was drawn.

The Tribunal had in mind the impacts on Ms Martin

50    It was not suggested that, in reaching its decision, the Tribunal did not have in mind the impacts which the removal of Mr Luckman would have on Ms Martin. The following shows that it did.

51    Under the heading which concerned paragraph 8.3 of Direction 99, the Tribunal stated the following:

PRIMARY CONSIDERATION THREE – STRENGTH, NATURE AND DURATION OF TIES TO AUSTRALIA

…

61.    The Applicant’s domestic partner Ms Martin is an Australian citizen and resides in Australia and has provided a statement and oral evidence in support of the Applicant. The Applicant and his partner have expressed a strong desire to continue to build their business as self-employed couriers/furniture removalists, and to start a family in Australia. If the Applicant is to be deported, Ms Martin informed the Tribunal that it is her intention to also relocate to New Zealand, yet expressed that this will create emotional hardship for her, principally by reason of her being physically separated from her own family in Australia.

52    Relevantly, the Tribunal recorded that Ms Martin had provided a statement and oral evidence, and it is evident that it was aware of those and their evidential effect. Specific reference was made to the fact that Mr Luckman and Ms Martin had established a business in Australia as self-employed couriers/furniture removalists. In her statement to which the Tribunal referred, she had said:

If Alex is deported back to New Zealand, this would mean I would have to follow him. However, I would face financial and emotional hardship. All my immediate family including my parents and siblings live in Australia. I also have started the process of IVF and I would face tremendous hardship if I could not continue with the process without Alex.

I would not continue IVF without Alex by myside we have fertilised embryos and I do not want to travel to Australia alone to have one implanted. I would have to start the entire process again and there for five fertilised embryos will remain forever frozen and it morally and emotionally it doesn’t sit well with me.

(Errors in original).

53    Later in its reasons, under the overall heading of “other considerations”, the Tribunal considered some of the consequences for Ms Martin were Mr Luckman to be deported. It set out one of the submissions made as follows:

87.    The Applicant submits that his partner Ms Martin, as one victim of the Applicant’s domestic violence would be adversely affected by his removal from Australia by reason that Ms Martin depends on the Applicant financially and emotionally, such that this factor should be now [be] assessed by the Tribunal as weighing in favour of revocation of the visa cancellation decision. …

(Footnote omitted).

54    In relation to this and other matters it concluded as follows:

88.    The Tribunal notes that Ms Martin has indicated that, in the event that the Applicant is to be deported, that she will also relocate to New Zealand in order to be with the Applicant. In light of that evidence, the Tribunal considers that only quite limited weight now attaches to this other consideration in support of revocation of the visa cancellation decision.

The complaint in relation to the Tribunal’s consideration

55    In substance, the submission made was that whilst the Tribunal did take into account the financial impacts on Ms Martin which would flow from Mr Luckman’s deportation in the context of the “other considerations”, it did not take those impacts into account as part of the primary considerations. This drew on the fact that financial hardship was not specifically referred to in the part of the Tribunal’s reasons wherein it considered paragraph 8.3(1) of Direction 99, even though it was referred to in the part of the reasons where paragraph 9.3(1) of the Direction was considered — being that section of the reasons where the statements in [87] and [88] were made. Further, by reason of the express reference at [61] of the reasons to the ensuing emotional hardship on Ms Martin, it was submitted that the Tribunal had failed to address as part of the primary considerations the financial hardship which might be suffered.

56    It was also submitted that, in the circumstances of this case, the financial challenges of Ms Martin were significant. They included relocation costs including travel expenses, securing housing and establishing a new livelihood. It was also said that she would lose the financial support from her family in Australia and suffer financially from the cancellation of her IVF treatments. It was further submitted that the Tribunal also failed to address the financial challenges and disruptions to the business operated by Ms Martin and Mr Luckman that would result from his deportation. That included the loss of income, business viability and relocation costs.

Whether the Tribunal failed to consider financial hardship as a primary consideration

57    The major difficulty for Mr Luckman in this respect is that he carries the onus of establishing that the Tribunal did not take into account the financial hardships which might be suffered by Ms Martin when addressing the primary considerations. To this end, it is worth repeating what was said in Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352, 364 [48]:

… First, a finding by the Court that the Minister has not engaged in an active intellectual process will not lightly be made and must be supported by clear evidence, bearing in mind that the judicial review applicants carry the onus of proof. Secondly, some broad guidance may be obtained from other authorities as to the kinds of circumstances in which such a finding could be made. In referring to these authorities, we do not suggest that the requisite evaluative judgment is to be conducted as though it involves a “tick the box” comparative exercise by reference to other decided cases. As we have emphasised, each case will necessarily turn on its own particular facts and circumstances.

58    The same observations apply to the findings of a Tribunal.

59    In DTCB v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1098 [30], SC Derrington J added that:

A conclusion that a decision-maker has not engaged in an active intellectual process is not one to be made lightly and must be supported by clear evidence, bearing in mind that the judicial review applicant carries the onus of proof: Carrascalao at [48]. As a matter of impression, the Tribunal’s reasons were careful and considered. It is artificial to suppose that a decision-maker who has carefully set out the detail of the representations put to that decision-maker has not engaged in an active intellectual consideration of those matters before arriving at a conclusory summary in relation to the relevant issue. It is a methodology adopted routinely by decision-makers to enable them to undertake the evaluative task with which they have been charged.

60    Here, it is important that at [61] of its reasons, where it was expressly considering the primary considerations, the Tribunal identified that Ms Martin had “provided a statement and oral evidence in support of [Mr Luckman]”. It can be inferred therefore, that the Tribunal had that evidence before it when addressing the relevant criteria: Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594, 618 [73]: and it was mindful of its content at that time. That can be assumed in the absence of evidence to the contrary, even though there was no setting out of the contents of Ms Martin’s statement or evidence at this point in the reasons. It is also important that, in the context of its consideration of the impact on Ms Martin, reference was specifically made to the business of Mr Luckman and Ms Martin as “self-employed couriers/furniture removalists”. This reference, which was drawn from the evidence, reveals that the Tribunal had in mind the disruption which would be caused as a result Mr Luckman’s deportation. Whilst it may be that only the emotional hardship was emphasised, the impact on the business operated by the pair was impliedly referenced.

61    It is true that express reference is made to the potential financial hardship to Ms Martin at [87] and [88] of the Tribunal’s reasons, but that is not an indication that these matters were not considered in relation to the application of paragraph 8.3(1). Rather, it is an indication that the Tribunal had the evidence of Ms Martin to mind when it applied the criteria required by Direction 99, even though it was not expressly mentioned in relation to each consideration. The Tribunal turned its mind to the financial impacts on Ms Martin of Mr Luckman’s deportation to some degree. It is clear that it had read her statutory declaration and, indeed, recognised the submission that she depended upon Mr Luckman financially. Consideration was also given to the impact on Ms Martin foregoing the benefits of being engaged in IVF treatments.

62    A court must be cautious as to the manner in which it construes the reasoning of a Tribunal, and must not regard the reasons as a transcription of a lineal thought process but rather consider the reasons as a whole. The reasons of a Tribunal must be read beneficially, meaning that they must not be read in an unduly critical manner or with an eye attuned to error: BVD17 v Minister for immigration and Border Protection (2019) 268 CLR 29, 45 [38]; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 271 – 272.

63    Here, it is undoubted that the Tribunal had read the material which was advanced to it in relation to the impact which Mr Luckman’s deportation would have on Ms Martin. It also identified the criteria which it was to apply in relation to the circumstances of the case before it. Whilst the expressed reasoning was not as clear as it might have been, Mr Luckman has failed to discharge the onus of establishing that the Tribunal did not give consideration to the financial hardships which Ms Martin would face were he to be removed to New Zealand.

64    It follows that Mr Luckman has not made out his second ground of review.

Disposition

65    As Mr Luckman succeeded on his first ground of review, it follows that an order of certiorari should issue quashing the decision of the Tribunal. Further, a writ of mandamus should issue to the Tribunal to determine the application according to law and in accordance with these reasons.

66    Although a submission was made that the matter should be returned to a differently constituted Tribunal, there was no foundation for that submission and no reason for such an order to be made.

67    There is no reason why costs should not follow the event. That being so, the Minister should pay Mr Luckman’s costs as agreed or as taxed.

Discretionary aspects of Direction 99

68    By way of a postscript, it should be noted that the application for review proceeded on the basis that Direction 99 was addressed to the manner in which the decision-maker exercised some form of discretion under, inter alia, s 501CA(4). As with its progenitors, Direction 99 proceeds on the assumption that the existence of a power to reach the state of satisfaction required by s 501CA(4)(b)(ii) — being that there is another reason why the cancellation decision should be revoked — involves some discretion. That assumption may not be warranted and there are a number of decisions which have raised and considered this topic: see the discussions in Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 285 FCR 187; QYFM v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) (2023) 301 FCR 422; NRFX v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 300 FCR 582, 606 – 607 [108] – [112]; Trout v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 583. Given the manner in which the appeal was argued, however, it is not necessary to revisit this interesting and, as yet, unsettled question.

Associate:    

Dated:    2 August 2024