Federal Court of Australia

GRPN v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 406

ORDERS

THE COURT NOTES THAT:

1.    The effect of item 10 of Schedule 16 to the Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Act 2024 (Cth) is that the Administrative Review Tribunal is substituted for the Administrative Appeals Tribunal as the second respondent to these proceedings.

2.    Pursuant to item 25 of Schedule 16 to the Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Act 2024 (Cth), anything the Court could have done in relation to the Administrative Appeals Tribunal may be done in relation to the Administrative Review Tribunal.

THE COURT ORDERS THAT:

1.    The decision of the Administrative Appeals Tribunal made on 1 May 2024 is quashed.

2.    The matter is remitted to the second respondent for determination according to law.

3.    The first respondent must pay the applicant's costs of the application, to be assessed if not agreed.

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

REASONS FOR JUDGMENT

JACKSON J:

1    This is an application for judicial review of a decision by the Administrative Appeals Tribunal (as it then was).  The Tribunal affirmed a decision by a delegate of the first respondent (Minister) to cancel the applicant's visa under the character test provisions of the Migration Act 1958 (Cth).

2    The applicant seeks judicial review of the Tribunal's decision on two grounds.  The first concerns the Tribunal's approach to making a determination about whether cancellation of the visa was in the best interests of certain minor children, being five of the applicant's grandsons.  The second ground is to the effect that the Tribunal failed to deal properly with claims concerning one of the applicant's adult children who, the applicant claimed, has autism, attention deficit hyperactivity disorder (ADHD) and intellectual impairment.

3    For the following reasons, the application will be allowed, the decision of the Tribunal will be quashed and the matter will be remitted to the Administrative Review Tribunal for determination according to law.  On 14 October 2024 the Tribunal ceased to exist and was replaced by the Administrative Review Tribunal.  Item 10 of Schedule 16 to the Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Act 2024 (Cth) substitutes the Administrative Review Tribunal for the Tribunal as the second respondent in these proceedings.  Consequently, Item 25(2) of Schedule 16 permits this Court to remit the matter to the Administrative Review Tribunal.

4    Given the nature of the applicant's crimes and his relation to the victim of those crimes, it is appropriate to anonymise all concerned in this judgment.  I have done so by the use of pseudonyms (other than for the applicant).  I have used first names only, for the sake of simplicity, and no disrespect to anyone is intended by doing so.

Background

5    The applicant is a citizen of Tonga.  He moved to Australia in 2005, when he was 37 years old.

6    A few years after the applicant arrived in Australia, and on at least four occasions, he sexually assaulted his niece, who was 7 years old when the offending started.

7    As at 2011, it appears that the applicant's sexual offending was unknown to the authorities, because in that year he applied for Australian citizenship, and in 2012 it was granted.

8    The applicant went on to commit at least two more sexual offences, against the same niece, in 2013 while she was still a minor.  He subsequently pleaded guilty to four counts of indecent treatment of a child under 12 and two counts of indecent treatment of a child under 16, and was convicted and sentenced for those offences in 2017.

9    In 2019, the applicant's Australian citizenship was revoked in the public interest because he had been convicted of serious offences after he applied for citizenship.  By operation of law, he was immediately granted an Ex-Citizen subclass 150 visa.

10    On 9 January 2024, a delegate of the Minister cancelled the visa under s 501(2) of the Migration Act which, in broad terms, permits the cancellation of a visa if the visa holder does not satisfy the Minister that he or she passes the character test.  There was and is no issue that the applicant did not pass the character test, so that the delegate possessed the discretion to cancel the visa that was afforded by s 501(2).  In turn the Tribunal, standing in the delegate's shoes, possessed the power to affirm the exercise of that discretion.

11    The applicant applied to the Tribunal for review of the delegate's decision.  The Tribunal delivered an oral decision on 1 May 2024 affirming the delegate's decision and, on 16 May 2024, gave more detailed written reasons.

12    At the time of the Tribunal's decision the exercise of the discretion was governed by Direction no. 99: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction 99).

13    Specifically, paragraph 6 of Direction 99 required the Tribunal to take certain considerations into account.  One of those, at paragraph 8.3, was the strength, nature and duration of ties to Australia.  Paragraph 8.3(1) required the Tribunal to consider any impact of the decision on the applicant'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.

14    Another consideration made mandatory under Direction 99, where relevant, was the best interests of minor children in Australia affected by the decision.  Paragraph 8.4(1) required the Tribunal to make a determination about whether cancellation of the visa was, or was not, in the best interests of a child affected by the decision.  This applied only if the child was under 18 years old at the time that the decision to cancel the visa was made:  para 8.4(2).  If there were two or more relevant children, the best interests of each child was to be given individual consideration to the extent that their interests may differ:  para 8.4(3).  Paragraph 8.4(4) set out a number of factors which needed to be considered, where relevant.

15    In Direction 99, each of these two considerations (strength, nature and duration of ties to Australia and best interests of minor children) was a primary consideration, meaning that they were generally to be given greater weight than the other considerations set out in the direction: see para 7(2) and the opening of para 8.

The grounds of review

16    By his first ground of review, the applicant contends that the Tribunal made jurisdictional errors by failing to comply with paragraph 8.4(1) and/or paragraph 8.4(3) of Direction 99.  That ground is supported by lengthy particulars which raise a number of different complaints about the Tribunal's decision.  It is helpful to isolate those complaints by reference to the particular children concerned.

(1)    A minor child, whom I will call Matthew, is the son of an adult son of the applicant whom I will call James.  The applicant contends that the Tribunal failed to comply with paragraph 8.4(1) of Direction 99 because it conflated claims about James's medical conditions with claims about Matthew's medical conditions.  This means, the applicant says, that the Tribunal failed to consider Matthew's medical conditions, and so failed to make a determination about whether cancellation of the visa was, or was not, in the best interests of a child affected by the decision.

(2)    The applicant also alleges that the Tribunal failed to consider the extent to which Matthew's best interests differed from those of his brother, whom I will call Noah, and/or those of the applicant's other minor grandchildren.  The applicant says that this was a failure to comply with paragraph 8.4(3) of Direction 99.

(3)    Another particular concerns a minor child whom I will call Ryan, who is the son of a different adult son of the applicant, whom I will call Andrew.  Andrew committed suicide shortly before the Tribunal hearing.  In his witness statement to the Tribunal, the applicant claimed that Ryan 'is not coping since the suicide of [his father, Andrew] and I have been trying to console him over the phone for the past few weeks'.  The applicant contends that the Tribunal failed to make findings on that claim, and so failed to comply with paragraph 8.4(1) of Direction 99.

(4)    The applicant also claims that the Tribunal failed to consider the extent to which Ryan's best interests differed from those of the applicant's other minor grandchildren, and so failed to comply with paragraph 8.4(3) of Direction 99.

(5)    Finally, there is a particular concerning three minor children of another adult son of the applicant, whom I will call Patrick.  The applicant contends that the Tribunal failed to comply with paragraph 8.4(3) of Direction 99 because it failed to consider the extent to which the interests of those three children differed among themselves, and also the extent to which those interests differed from the applicant's other minor grandchildren.

17    The second ground of review concerns James.  The applicant contends that the Tribunal denied procedural fairness or constructively failed to exercise its jurisdiction because it misunderstood the claims that were being made in relation to James.  James has autism but the applicant says he claimed that, in addition to that, James is disabled and suffers from ADHD and intellectual impairment.  The conflation alleged in ground 1 between James's conditions and those of Matthew meant that the Tribunal failed to appreciate that these latter claims about James had been made (the ones other than autism).  Thus the Tribunal's consideration of the extent to which James would need care did not proceed on the basis of a proper appreciation of the claim that he was disabled and suffered from ADHD and intellectual impairment.

18    While ground 2 in the amended originating application does not refer to Direction 99, counsel for the applicant submitted that in its treatment of the claims about James, the Tribunal breached paragraph 8.3 concerning the strength, nature and duration of ties to Australia.

Relevant material before the Tribunal

19    It is appropriate, before considering the Tribunal's reasons concerning the interests of the adult child and minor children just mentioned, to describe the material that was before the Tribunal concerning those interests.

20    Among the material before the Tribunal were some family trees, the latest one of which indicated that, at the time of the Tribunal hearing, the appellant had five sons (Andrew was included) and one daughter, all of whom were adults.  All but one of those children had themselves had children, giving the applicant a total of 15 grandchildren.

21    The applicant was represented by a migration agent during the process that ended in the cancellation of his visa by a delegate of the Minister.  He had received notice of the intention to consider cancellation.  In response to that notice, the migration agent representing him sent a letter dated 21 July 2020 to the Department of Home Affairs which made representations as to why the visa should not be cancelled.

22    The representations were organised by reference to the considerations that were mandated by the relevant predecessor to Direction 99, including the best interests of relevant minor children.  The letter included the following passage:

d.    Best Interest of Minor Child

We note that the Delegate should also consider if the cancellation may impact any minor child.  Although our client do [sic] not have any minor child, but our client is still caring for his disabled child, [James] turning 23 years of age this year.  The child has been diagnosed with Autistic Disorder, Intellectual Impairment and ADHD (Annexure 9).  The condition has been diagnosed by Queensland Health and Centrelink in allocating carer's allowance.

Should our client's visa be cancelled, the child will not be able to survive without the care of his father.  The mother of the child (wife of our client) is working full time as a part owner of local real estate agency hence will require the support and the presence of our client to care for the disabled child.

23    After quoting art 23 of the Convention on the Rights of the Child, opened for signature 20 November 1989, 1557 UNTS 3 (entered into force 2 September 1990), concerning the rights of mentally or physically disabled children, the letter then said:

Although the child of our client is above the age of 18 years, due to his disability, he should still be treated and considered as a child.  The Child is still staying with our client and still under the care of our client.  Our client often brings the child along with him to his work to ensure that he can continue to look after him.

24    At other points, the letter said:

g.    Impact on Australian Business Interest

… Should our client's visa be cancelled and needed to be removed from Australia, the household will lose the stream of income that our client brings home approximately ($90,000 to $100,000 annually).  This would mean that the wife, may default in the mortgage repayment, will not be able to continue with the work for needing to care for their disabled child, [James].

i.    Extent of Impediment if removed

… In addition to the above, the disabled child, [James] will not be able to survive by himself in Australia.  This may mean that he may need to travel to Tonga with his father to somewhere new that may not help in his current situation of Autistic Disorder, Intellectual Impairment and ADHD moving to a new environment.  This will bring stress and may further impact the health condition of the child in a new environment.

25    Similar claims to the above were made by the migration agent in a further submission to the Department dated 3 May 2023.  That was supported by a statutory declaration which the applicant made on 4 May 2023 which said:

I married my second wife in January 2010 after having been together for 15 years.  We have two children together.  One of our sons, [James], is 25 years of age and has been diagnosed (from 5 years) with autism, ADHD, intellectual impairment and epilepsy.  My wife is normally the primary provider for our family and works long, inflexible hours.  I therefore am the primary caregiver to our disabled son, due to my flexible working hours.  As [James] suffers from frequent fits, we are unable to leave him alone.  When both my wife and I are working, I will bring [James] with me to keep an eye on him.  My wife and I have tried to assist [James] in becoming independent, however he is incapable of this.  [James] is unable to work in even an entry level job.

I earn approximately $800 - $1000 per week.  Although my wife is the primary income earner, our family is also dependant on my income.  My wife and I own two homes, both subject to mortgages.  If I was unable to work and provide an income to my family, my wife would be unable to financially support the family in addition to caring for our son by herself.  We are unable to afford a carer for [James] at the present and would certainly be unable to afford the same without my income.

…

[James] is 25 years of age.  He has a disability (Autism, ADHD, Intellectual Impairment) he is on Centrelink.  I am his fulltime carer and let him come with me to work so he gets to meet other people.  He gets very nervous around people and cannot go out by himself [James] lives at home with me and my wife.  He has long-term doctors that he needs to see regularly and changing all of this could impact him greatly.  He now has a one child [Matthew], 4 years old; he looks after him 4 days a week, so we help him with care during this time, he has some early learning difficulties and may have autism (still looking to test) he is fully dependent on our help.  [James] is expecting another child in November this year.

26    In the delegate's written reasons for cancelling the visa dated 9 January 2024, the delegate concluded that the applicant's 'family ties should be afforded significant weight against the cancellation of his visa' (para 69), with James likely to experience 'particular hardship' if the visa were to be cancelled.  Under the heading 'Best interests of minor children' the delegate concluded that it would 'especially' serve the interests of Matthew, among the minor children, if the applicant's visa were not cancelled.

27    Before the Tribunal, the applicant said things about each of James, Matthew and Ryan in a statement dated 15 March 2024.  The statement also refers to the applicant's wife and James's mother, whom I will call Michelle.  It included the following:

20.    I am very grateful to be out and living with my children and grandchildren and my sole purpose is to help provide for my special needs grandchild [Matthew] as he is very vulnerable at the moment and needs that extra help and support as well as [Noah] who is 4 months old.

21.    My other grandson, [Ryan] who is [Andrew's] oldest child who is not coping since the suicide and I have been trying to console him over the phone for the past few weeks.

…

Dependency of [James] and [Matthew] in Australia

31.    I currently care for my son [James] that has been diagnosed to be Autistic.

32.    [James] is turning 27 years old this year.

33.    [James] has a son, [Matthew] … from a temporary short-term relationship.

34.    He has a second child 4 months old [Noah] who lives with his mother most of the time due to colic and [Matthew] smacking him.

35.    [Matthew] had recently been diagnosed also as Autistic Level 3.

36.    [James] being 26 years old father, is not capable of looking after himself and not able to look after his sons.

37.    I have been playing the role of a father for [Matthew], my grandson over the years and now [Noah].

38.    I have experience in bringing up [James], my Autistic son over the past 26 years and now I am looking after both [James] and his son [Matthew].

39.    He is nonverbal and hits out and runs off, very dangerous, he also has dietary problems and is working with me on teaching coping skills and distractions to help cope with this.

40.    Sometime in November 2023, both [Michelle] and I decided to send [James] out to stay on his own to try out if he can look after himself.

41.    I dropped by to his residence every day to check up on him and it turned out that he is not capable to look after himself.

42.    I must help him daily in cleaning up his place, mow the lawn and help him with cleaning his dishes as well on daily basis.

43.    After my detention stay, we decided to bring him back home to live with us as he is not capable of looking after himself what more to say his son.

44.    Due to this, [Matthew] and [Noah] are only staying with [James] along with us on the weekends.

45.    That is the only way we can help him and teach him how to look after [Matthew].

46.    With me in the detention at the moment, [Michelle] is really struggling to look [James], [Matthew] and her full-time employment.

47.    Without my income, the household is currently struggling with [Michelle's] sole income only.

48.    [James] is not capable of employment hence we are getting Centrelink carer benefits to look after [James].

49.    With the recent diagnostic of [Matthew], our grandchild, we will also need to play a role in caring for [Matthew].

50.    With my wife not coping after our sons passing, she is very depressed and has already taken a lot of time off work that she has no more leave entitlements.

51.    She is vulnerable and could lose her job.

28    Michelle also made claims about James and Matthew in her witness statement dated 15 March 2024 given to the Tribunal, as follows:

22.    Our family functions and operates with both the income of [the applicant] and myself.

23.    With our income, we pay for our food, mortgages, bills and support our son [James].

…

26.    With [James], we [are] basically still his full time carers and we are receiving Centrelink Carer allowances for caring for [James].

27.    Now, with the recent diagnostic of [James's] son, [Matthew], we will need to be responsible for our Grandchildren as well.

28.    Without the income of [the applicant], our household will not function.

29.    [The applicant] is the one that looks after [James] by taking him along to work so he can keep an eye on him.

30.    He can get frustrated and act out or run off and hid[e] which can be very frightening.

31.    Without my husband, [James] lost his sense of directions, and he is not able or capable of finding any employment what more to say caring for his 5 years old son that is also diagnosed as Autistics [sic] Level 3 and now the 4-month-old son

…

32.    With [the applicant] remaining in the detention and risk being deported, we are very worried that we will default on our mortgage and won't be able to put food on the table.

33.    I'm struggling mentally and worried about how much time I have taken off work and may lose my job.

34.    We may be homeless if the condition persists, and we are losing the income that [the applicant] brings home to keep this family running.

Dependency of [James] and [Matthew] in Australia

35.    [The applicant] is currently caring for our son [James] that has been diagnosed to be Autistic.

36.    [James] is turning 27 years old this year.

37.    [James] has a son, [Matthew] … from a temporary short-term relationship.

38.    [Matthew] had recently been diagnosed also as Autistic Level 3.

39.    [James] being 26 years old father, is not capable of looking after himself and not able to look after his son.

40.    [The applicant] has been playing the role of a father for [Matthew], our grandson over the years.

41.    As [the applicant] had experience in bringing up [James], our Autistic son over the past 26 years and now he is looking after both [James] and his son [Matthew].

42.    [James] had another relationship that is not steady, and they have a child [Noah] 4 months old.

43.    His mother [name redacted] looks after him fulltime with the help of her mother and we also get him on the weekends when there is help around to support [James].

44.    Sometime in November 2023, [the applicant] and myself decided to send [James] out to stay on his own to try out if he can look after himself and his partner [name redacted] at the time who has now had a child, [Noah] - 4 months old.

45.    She moved back with her mother due to not coping with his colic and sleeping habits and [Matthew] slapping the baby.

46.    When we tried for [James] to stay away on his own, [the applicant] had to [be] dropped by to his residence every day to check up on him and it turned out that he is not capable to look after himself.

47.    [The applicant] had to help him daily in cleaning up his place, mow the lawn and do his dishes as well on [a] daily basis.

48.    After [the applicant] is in detention and me trying to juggle daily work, and business and the role of carers and two household cleaning and food, we decided to bring him back home to live with us as he is not capable of looking after himself and his son.

49.    Due to this, [Matthew] and [Noah] is only staying with [James] and us on the weekends.

50.    That is the only way we can help him and teach him how to look after [Matthew] and [Noah].

51.    With [the applicant] in the Detention at the moment, I am really struggling to look after [James], [Matthew] and [Noah] while I am working full time.

52.    My anxiety and depression are really bad after the passing of our son [Andrew], I am really struggling to go to work at all.

53.    Without my husband's income I am currently the sole-breadwinner.

54.    [James] is not capable of finding any employment hence we are getting Centrelink carer benefits to look after [James].

55.    I am really struggling with the family depression over our son [Andrew] and not coping on my own.

29    There was also a statement of issues, facts and contentions of the applicant before the Tribunal which claimed, in terms, that he was caring for and responsible for his 'Autistic Son', that is James, and for his 'Autistic Grandchild', that is Matthew.

30    Those claims were repeated in a written submission to the Tribunal made by the applicant's migration agent, which said:

d.    Interests of Minor Children

During the hearing, the Review Applicant also testified on the dependency of his Autistic Son and Grandson that he is caring for.  The guideline does not specifically require an interest of a biological minor child, but any child that will be affected by the removal of the Review Applicant hence the interest of the Grandchild ought to be considered.

The Review Applicant and the second witness have testified that without the presence of the Review Applicant, the care of the Son and Grandson of the Review Applicant is highly impossible.

…

h.    Other Factors

The Review Applicant has testified that he is the highest income earner in the family, he supports his household and his other children by way of providing them reduced rental, help out in the grandchildren's transportation to and from school, caring for his autistic child and grandchild.

31    In terms of other evidence before the Tribunal as to James, the applicant refers to the following:

(1)    A letter dated 11 November 2009 from a doctor at Queensland Health saying that James 'is a boy with a diagnosis of Autistic Disorder, intellectual impairment and ADHD'.  This appears to be the 'Annexure 9' referred to in the letter of 21 July 2020 to the Department of Home Affairs.  Annexed to the letter was a detailed assessment of James's reasoning, memory, comprehension and auditory processing abilities showing that he had scored below the age appropriate range in many respects.  A more complete copy of this was also in evidence, showing that it had been an 'auditory processing assessment' of James, dated 27 April 2009 that had been conducted by a clinic at the University of Queensland.  The conclusion of the clinician was that 'the presence of a central auditory processing disorder cannot be confidently confirmed or denied'.  Further testing was offered.

(2)    A letter dated 4 July 2017 from the applicant's general practitioner indicating that the applicant 'cares for his autistic child and other family members'.

(3)    That letter appears to have been referred to in the remarks of the sentencing judge about the applicant's care for his 'disabled child'.  His Honour referred to the applicant as the 'primary carer for an autistic child' and mentioned the applicant's 'concern in relation to not being able to provide him with support' if he were to serve time in custody.

(4)    A statement from the Queensland Department of Communities, Child Safety and Disability Services dated 12 February 2014 saying that James had been determined eligible under the Disability Services Act 2006 (Qld).  I was, however, directed to no evidence as to what this meant.

(5)    An undated handwritten letter signed by James, which was attached to the migration agent's letter dated 19 November 2020 to the Department and which said (with minor corrections):

My name is [James] and I'm writing a letter of support of my father.  I have a disability, autism, and I have always depended on my Dad throughout my whole life, because of what I have I believe.

I am on Centrelink, but my Dad owns his business, and because I can't depend on myself, I'm always with my Dad helping my Dad with his work, and he gets to look after me, full time, and I also got a young child who is mean a lot to me and my father loves my son and takes care of him.  I don't know what I will do if my father is taken away from me, it will be hard for me.  I'm asking please let my father stay in Australia.  Thank you.

(6)    An undated signed statement of Michelle, which was attached to the migration agent's letter dated 21 July 2020 to the Department and which included the following:

We have a disabled son who is now 23 this year, he suffers from ADHD, Autism, Intellectual Impairment, [the applicant] is his primary caregiver as he rarely speaks and goes out of the house on his own.

[The applicant] takes him with him to work and is his only source of interaction with the outside world.  I am extremely concerned about his welfare if [the applicant] is not around as he finds it very difficult to mix with other people and cannot leave the house without support.  I am unable to care for him on my own as I suffer from anxiety and depression and often find it overwhelming to deal with his disability, but [the applicant] has a great relationship with him, and it works well.  [James] also has a 1 year old child he shares custody with and we assist with taking care of his child 3 days a week.  He would struggle doing this on his own and I worry without the proper support he may loss this time with his child as the mother may not let him have his child overnight without the support.

He goes to the gym every day and they find this as a great way to maintain good health but mentally as well.

Our other son … lives at home with us and he also attends the gym with them both and this really helps with their relationship as well.

(7)    A further statement signed by Michelle on 3 May 2023, which was attached to the migration agent's letter dated 3 May 2023 to the Department, which said similar things, but provided more detail about the challenges involved in caring for James as follows:

I am unable to care for him on my own as I suffer from anxiety and depression and have not even been able to work for the last 8 months as I had a relapse of severe depression after my mother passed away Christmas eve 2021.  The child neglect and abuse were all brought up in my memories and have been going to counselling myself for all of this.  [The applicant] has been the sole provider for the last 8 months.  I often find it overwhelming to deal with [James's] disability and he is over 6 foot tall.  [The applicant] has a great relationship with him, and it works well.  [James] has a 4-year-old child he shares custody with, and we assist with taking care of his child 3 times a week.  He would struggle doing this on his own and I worry without the proper support he may lose this time with his child as the mother may not have his child overnight without the support from us both.

(8)    A letter from James which seems to have been dated 15 April 2024, supported by various family photos, which said as follows:

My name is [James] and I miss my dad.

He helps me everyday with my tasks to keep the house clean.  He helps me with talking to people and remaining calm.  I get confused and angry fast because my brain.  My son [Matthew] is like me and level 3 autism.

He is very hard to communicate with and hard to socialize.  My dad helps me with this a lot.  When my brother [Andrew] passed I was so sad.  I couldn't cope and with my dad not there to help me it was even more hard.

I am feeling very depressed and do not know how to cope without my dad.  I visited my dad with my son and he was so happy.  He screamed so loud and cried when we had to leave.  I would like to have my dad around to help me with my son to raise him like he did me.

I would not be having the life today with[out] my dad.  My mum helped me write this as I am not good with writing but I told her what to say and she wrote it.  Please give me my dad back.

32    As to Matthew, the applicant refers to a document dated 14 February 2024 on the letterhead of the Queensland Government West Moreton Hospital and Health Service and signed by a Paediatric Consultant, that is, a doctor.  This said of Matthew that the consultant had been reviewing him and confirmed the following diagnoses:

1.    Autism Spectrum Disorder level 3 (DSM-V)

2.    Global Developmental Delay

3.    Severe Speech and language delay

4.    Sensory processing concern

33    As to Patrick's children, an undated statement by him which appears to have been before the delegate said of the applicant:

We do not have many family members here in Australia and depend on him a lot.  He helps out with my children and takes us to footy to make sure we are all taking care of our physical and mental health.

…

I would really like him to help raise my 3 children and guide them like he did our family, he has so many things to teach, he has shown us how to cook the traditionally food and clean, show how to earn an honest dollar and we would really appreciate the chance to have our dad with us to help raise our children peacefully.

34    The applicant's statutory declaration dated 4 May 2023 said of Patrick that he:

… has 3 children (3, 2 and 4 months) as new parents with no other support (His girlfriend is estranged from her mother and father lives in Perth).  We assist with their raising of them at least 2 days a week as a support as he starts at 4am in the morning and finishes at 6pm most nights.  They come over each weekend and we play touch football together and attend the local church.

Relevant aspects of the Tribunal's decision

35    As has been said, the Tribunal delivered its decision and what it described as 'simplified reasons' on 1 May 2024.  More detailed written reasons followed on 16 May 2024.  Neither party suggested that it was necessary for me to have regard to the simplified reasons so what follows concerns the longer reasons of 16 May 2024.

36    The Tribunal first noted some considerations in Direction 99 which it considered were 'neutral' and disposed of those first.  The applicant does not take issue with the Tribunal's treatment of those considerations.

37    The Tribunal then turned to the applicant's background and offending.  He had no criminal record, other than the sexual offences against his niece and some traffic offences.  The Tribunal considered the circumstances of his offending.  In view of the nature of the sexual offending, and the fact that it was repeated, the Tribunal gave heavy weight, in favour of cancelling the visa, to three mandatory primary considerations under Direction 99.  They were the protection of the Australian community, family violence (being the sexual assaults against his niece), and the expectations of the Australian community.  The applicant does not take issue with the Tribunal's reasoning in relation to those considerations.

38    The Tribunal then turned to a primary consideration which, it found, 'weighed very heavily against cancelling' the applicant's visa (Tribunal reasons (T) para 114).  That was the strength, nature and duration of his ties to the Australian community.  After canvassing various social and familial connections to that community, and mentioning that the applicant and Michelle 'help look after their grandchildren' (T para 93), the Tribunal said:

94.    I accept that the Applicant has strong familial ties to Australia.  I accept that even though some of his grandchildren are too young for him to have built a meaningful relationship with them, he still loves them and it will pain him not to be around them as they grow up, and they equally will not have the benefit of him being around.

95.    I realise that the Applicant, his wife, his children (all adults), his in-laws and his grandchildren in Australia who knew and loved his son, [Andrew], are suffering emotional hardship following [Andrew's] recent death.  [Andrew] had been living in New Zealand with his mother for two years, and he had been struggling with his mental health.  [Andrew's] eldest child lives in Brisbane with his mother, while the other three children live in the United States with their mother and have barely any contact with the Applicant.  The Applicant's wife is barely coping with her grief, and [another son] has moved into the family home to help her get through each day, making sure she eats and things like that.

…

97.    I accept that it is not realistic for any of the Applicant's family members to go with him to Tonga, and they are worried that he will not cope there.  His wife is afraid that he will be killed as a result of violent crime, and he will not be able to get a job.

98.    I accept that the impact of the Applicant being removed from Australia will cause further emotional and psychological hardship upon the existing emotional and psychological hardship that the Applicant's family, especially his wife, are already experiencing.

39    The Tribunal noted that Patrick had three children who were aged 1 to 4 years old.  It described his wife as 'a stay-at-home parent' (T para 100) and discussed their likely financial circumstances.  It discussed other children of the applicant, who are not relevant to the grounds of review.  Then it turned to James, as follows:

106.    The Applicant's son, [James] has autism spectrum disorder level 3, global developmental delay, and speech and language delay.  The Applicant used to take [James] to work with him, and he sat inside or in the Applicant's car and played or watched things on his phone.  The Applicant's wife mostly works at home, but when she has to work away from home, [James] stays home playing PlayStation or watching YouTube.  He also has frequent phone conversations with the Applicant, sometimes about Rugby League statistics for which he has an excellent memory.  If [James] does not get out much, he can sometimes act out with anger.  Since the Applicant has been detained, his wife has taken a lot of time off work so she can take [James] places.

107.    [James] has his own car and he feels comfortable to drive around the local area.  He is not very social, but he sometimes spends time with friends, and his brothers take him out with them when they can.  He has not been to the gym since the Applicant was detained, as he used to take him.  However, there is no apparent reason he could not go with [one of his brothers], who also goes to the gym.  In one of the Applicant's statements, he said [James] suffers from frequent fits and he cannot be left alone.  However, there is no medical evidence of that, and he obviously is left alone a fair bit.

108.    The Applicant's wife has not applied for support from the National Disability Insurance Scheme ('NDIS') to get help from trained carers because she does not think [James] would accept people he does not know.  That was the case when [James] had some assistance in his school years.  The NDIS option is there to explore if she chooses to.

109.    [James] has a four-year-old child from a short-term relationship.  That child has autism level 3.  The Applicant and his wife used to look after the child for a long weekend each week as [James] is not capable of doing that, and the Applicant wanted [James] to have time with his son.  Now that falls to the Applicant's wife.  The child's mother has applied for support from the NDIS and that application is pending.  [James] also has a four-month-old son by a different lady and that child spends most of his time in her care.

40    The 4-year-old child referred to in that last paragraph is of course Matthew, although the Tribunal did not identify him by name (or pseudonym).

41    After reviewing various impacts on the applicant's family of his removal to Tonga, in particular on his wife (Michelle), the Tribunal reached the conclusion that the primary consideration of the strength, nature and duration of the applicant's ties to Australia weighed very heavily against cancelling his visa.

42    The Tribunal then turned to the primary consideration of the best interests of minor children in Australia.  The entirety of its written reasons dedicated to that subject was as follows (the pseudonym 'Sarah' refers to the applicant's daughter):

115.    The next Primary Consideration is the best interests of minor children in Australia.  Here, I must determine whether cancelling the Applicant's visa is or is not in the best interests of any children under the age of eighteen who are affected by the decision.

116.    Deportation is obviously not in the best interests of the minor children in the Applicant's life.  Those children are his grandchildren who live in Australia.  I accept that it would be in their best interests to have him here as he is a positive factor in their lives and he will continue to be.

117.    They each have at least one parent fulfilling the parental role.

118.    The Applicant has a more important place in the lives of [Sarah] children as he was a father figure to them growing up.

119.    The Applicant would potentially be a part-time father figure to [James's] two children, although the elder one's mother has re-partnered.

120.    There is potential for the Applicant to communicate with these children via electronic means and for them to visit him.  There is no information about the effect separation has had on them (except for [Sarah's] children) and I note that some of the children are too young to have a meaningful relationship with the Applicant or feel his absence.  Those who are old enough are undoubtedly upset by this and they will miss the Applicant and worry about him.

121.    If [Sarah] or [Patrick] have to move house or cut down on expenses, that will have a knock-on effect on their children, although I am not satisfied that it would be substantial.

122.    The best interests of the Applicant's grandchildren, cumulatively, weighs to a limited extent against cancelling his visa.

43    The Tribunal's reasons in relation to the remaining considerations is not relevant to this application.  Its overall conclusion at the end of its reasons was simply that when it weighed all the considerations, even the strong considerations against cancellation of the visa were 'not enough to justify' permitting the applicant to keep the visa and the 'balance is in favour of exercising the discretion to cancel his visa':  T para 140.  Hence the delegate's decision was affirmed.

Consideration of ground 1 in relation to the interests of Matthew

44    As set out above, the first ground of review in truth encompasses several grounds.  It is convenient to deal with them separately by reference to the different children concerned.

45    Two aspects of the first ground of review concerned the applicant's grandson and James's son, Matthew.  The first aspect concerns the Tribunal's apparent confusion about the conditions which Matthew had.  The second aspect concerns an alleged failure to consider the extent to which Matthew's interests differed from those of his brother, Noah.

46    As to the first, before the Tribunal the applicant claimed that Matthew had been diagnosed with autism, global developmental delay, severe speech and language delay and sensory processing concern.  According to the applicant, he claimed that due to James's own medical conditions, the applicant acted as Matthew's father, as James was unable to care for Matthew on his own.

47    In the context of those claims, the applicant says, the Tribunal conflated the medical conditions of James and Matthew.  It described James as having 'global development delay and speech and language delay':  T para 106.  These were in fact conditions which the evidence disclosed pertained to Matthew, not James.  As to Matthew, the Tribunal only said that he had 'autism level 3'; it did not acknowledge that he also suffered from 'global developmental delay', 'severe speech and language delay' and 'sensory processing concern' (the conditions it mistakenly ascribed to James):  T para 109.  While the applicant does not say so explicitly, he appears to contend that the Tribunal failed to appreciate the claims that were made in respect of Matthew.

48    The other failure in relation to Matthew for which the applicant contends was that the Tribunal did not comply with paragraph 8.4(3) of Direction 99 because it did not give individual consideration to his interests, in circumstances where they differed from those of the other minor children (including Matthew's baby brother, Noah).  Matthew's medical conditions meant that he had needs different from Noah and the other grandchildren.  And yet nothing in the Tribunal's reasons showed any consideration of whether those needs were different.

Principles

49    Both these aspects of ground 1 were cast as a failure to comply with Direction 99, specifically paragraphs 8.4(1) and 8.4(3) respectively, concerning whether cancellation is in the best interests of minor children (see [14] above).  But in oral submissions, counsel for the applicant also framed the first aspect of the ground in terms of a failure to consider the applicant's representations about Matthew in the manner required under the Migration Act, as articulated in Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 275 CLR 582.

50    While Plaintiff M1/2021 was concerned with revocation of mandatory cancellation under s 501CA, neither party submitted to me that the observations of the majority in that case are inapplicable to a decision to cancel under s 501(2).  Plaintiff M1/2021 deals centrally with how the Minister is to consider representations made under s 501CA(3) as to why a cancelled visa should be restored; in this case, the delegate and the Tribunal were considering representations made by the applicant as to why his visa should not be cancelled.  The rules of natural justice applied to that decision, so the High Court's observations based on 'well-established authority in different statutory contexts' also apply:  Plaintiff M1/2021 at [24] (Kiefel CJ, Keane, Gordon and Steward JJ), [43], [47] (Gageler J agreeing); see Jones v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 137 at [26] (Logan, Charlesworth and Thomas JJ).

51    Therefore, what was required of the Tribunal in considering the representations of the applicant here is set out in Plaintiff M1/2021 as follows (footnotes removed):

[24]    … [T]here 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 (1995) 57 FCR 451], 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.  From that point, the decision-maker might sift them, attributing whatever weight or persuasive quality is thought appropriate.  The weight to be afforded to the representations is a matter for the decision-maker.  And the decision-maker is not obliged 'to make actual findings of fact as an adjudication of all material claims' made by a former visa holder.

[25]    It is also well-established that the requisite level of engagement by the decision-maker with the representations must occur within the bounds of rationality and reasonableness.  What is necessary to comply with the statutory requirement for a valid exercise of power will necessarily depend on the nature, form and content of the representations.  The requisite level of engagement - the degree of effort needed by the decision-maker - will vary, among other things, according to 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.

[26]    Labels like 'active intellectual process' and 'proper, genuine and realistic consideration' must be understood in their proper context.  These formulas have the danger of creating 'a kind of general warrant, invoking language of indefinite and subjective application, in which the procedural and substantive merits of any [decision-maker's] decision can be scrutinised'.  That is not the correct approach.  As Mason J stated in [Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24], '[t]he limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind'.  The court does not substitute its decision for that of an administrative decision-maker.

[27]    None of the preceding analysis detracts from, or is inconsistent with, established principle that, for example, if review of a decision-maker's reasons discloses that the decision-maker ignored, overlooked or misunderstood relevant facts or materials or a substantial and clearly articulated argument; misunderstood the applicable law; or misunderstood the case being made by the former visa holder, that may give rise to jurisdictional error.

52    It is also well established that the Tribunal was required to consider all claims that were the subject of a substantial, clearly articulated argument relying on established facts, or that clearly emerged from the materials:  NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 at [55], [68].  What is meant to consider those claims, or the extent of consideration required, is however now authoritatively set out in the above passage from Plaintiff M1/2021:  see ECE21 v Minister for Home Affairs [2023] FCAFC 52; (2023) 297 FCR 422 at [8] (Mortimer, Colvin and O'Sullivan JJ).

The claims and evidence that were before the Tribunal concerning Matthew

53    What claims, then, were before the Tribunal about Matthew, which the applicant says the Tribunal overlooked or misunderstood?

54    It should first be recalled that the claims about Matthew were made in the context of claims about his father, James.  In short, it was claimed that James was unable to look after himself, from which it followed that he could not look after Matthew by himself.

55    In a statutory declaration of 4 May 2023, the applicant mentioned Matthew, then 4 years old and not yet diagnosed, as having early learning difficulties and possibly autism.  This was, however, raised in the context of James's needs for help in caring for Matthew.  That James was to be the father of another child due in November 2023 was also mentioned: see [25] above.

56    After Matthew's diagnosis, however, the applicant advanced the following matters in his statement dated 15 March 2024 given to the Tribunal ([27] above):

(1)    The applicant's 'sole purpose' was to help provide for Matthew, whom he described as 'my special needs grandchild' and as 'very vulnerable at the moment'.

(2)    Matthew has been diagnosed as 'Autistic Level 3'.

(3)    James was not capable of looking after Matthew or his brother Noah.  The applicant had been playing the role of father to both of those children (as well as looking after James).

(4)    Matthew was nonverbal, dangerously prone to hitting out (including smacking baby Noah) and running off, and also had dietary problems.

(5)    With the applicant in detention, Michelle was really struggling to look after James and Matthew by herself and they were also struggling on her sole income.  She was not coping and was vulnerable.

(6)    With Matthew's recent diagnosis, the applicant and Michelle would need to play a role in caring for him.

57    In her statement of 15 March 2024, Michelle said the following ([28] above):

(1)    Matthew had been diagnosed as 'Autistic Level 3'.

(2)    James was not capable of caring for Matthew or Noah.

(3)    Noah was James's son from a different mother to Matthew's and the relationship was not steady.  Noah's mother looks after him full time.

(4)    With Matthew's recent diagnosis, she and the applicant would need to be responsible for their grandchildren (in context, this meant Matthew and Noah).

(5)    The household would not function without the applicant's income.

(6)    Michelle was struggling mentally, suffering from anxiety and depression, and could lose her job.

58    Claims made in the applicant's submissions to the Tribunal included that Matthew (and James) were dependent on the applicant and that the applicant cared for Matthew.  It was squarely asserted that as a minor child Matthew's interests needed to be considered under the 'guideline', evidently a reference to paragraph 8.4 of Direction 99.  In the absence of the applicant, it was claimed, the care of James and Matthew were 'highly impossible':  see [30] above.

59    These claims were supported by letters from James saying that the applicant takes care of Matthew, who has level 3 autism, 'is very hard to communicate with and hard to socialize', and who screams when he has to leave the applicant:  see [31] above.  They were also supported by the medical diagnosis of Matthew's conditions set out at [32] above.

60    Counsel for the Minister submitted that Michelle's evidence that Matthew had been diagnosed as Autistic Level 3 was not in itself a representation about the effect on Matthew of the removal of the applicant.  But it is obvious from that and from the other evidence of Michelle and of the applicant set out above that the claim is being made that the applicant's presence in Australia and his income were necessary for Matthew to be cared for properly in view of his special needs (and those of his father, James).

The Tribunal's deliberations in relation to Matthew

61    Paragraph 109 quoted at [39] above, and paragraph 119 quoted at [42], are the only evidence that the Tribunal considered Matthew's interests specifically, and not simply as part of consideration of the interests of the applicant's grandchildren in general.  Paragraph 109 ascribed 'autism level 3' to Matthew, but not the other conditions of which he had been diagnosed, namely global developmental delay, severe speech and language delay and sensory processing concern.  Instead, it ascribed those latter conditions to James.  This suggests that the Tribunal did not properly appreciate the claims that were being made in respect of Matthew (or in respect of James, as to which see further below).

62    That suggestion is confirmed by the way the Tribunal speaks about Matthew in paragraph 109 of its reasons.  It makes no reference to what Matthew's conditions actually meant for him and for those around him.  There is no reference to his hitting out (including at his baby brother) or to his running off, to the difficulties there were in communicating with him, or to his dietary problems.  There is no reference to the difficulties that Michelle was experiencing in looking after him and James, or how they might be exacerbated if the applicant were to be removed from Australia.  There is no reference to the impact that losing the applicant's income would have on Matthew and his care, beyond a reference to a pending application for NDIS support.  There is no reference to the level of any support that might be expected to result.

63    Counsel for the respondent submitted that the emphasis in the applicant's representations before the Tribunal was on Matthew's autism and that the Tribunal dealt with this.  Apart from the medical letter in which his conditions were diagnosed, there was no mention of his other conditions in any of the other materials.  I do not accept that this answers this aspect of ground 1.  For while it is true that those other conditions were not mentioned in the applicant's statement of issues, facts and contentions, or submissions or witness statements, the claim that Matthew had them emerged clearly from the medical diagnosis, and the Tribunal obviously and regard to that diagnosis, for it mistakenly ascribed the conditions to James.

64    Further, specific representations about the difficulties presented by Matthew's conditions were made in the applicant's and Michelle's witness statements, and the Tribunal betrays no awareness of these.  It was a matter for the Tribunal as to the weight it chose to put on any one or more of those considerations, and it could conceivably have decided not to mention any one or more of them.  But the fact that it has mentioned none of them, after having mistakenly ascribed Matthew's diagnosis to James, indicates that it did not understand and appreciate the claims that were being made in relation to Matthew.

65    Further, that discussion of Matthew was under the heading of the strength, nature and duration of ties to the Australian community, not the best interests of minor children.  No conclusion about what was in Matthew's interests was expressed at this point.  And while it would of course have been open to the Tribunal to rely on that discussion under the latter heading without having to repeat it, the Tribunal's reasons in relation to the best interests of minor children give no indication that it did so:  see [42] above.  Its consideration of the best interests of the minor children is based on a brief general assertion that it would obviously not be in the best interests of all the minor children in the applicant's life for him to be removed from Australia.  It is said that each child has at least one parent fulfilling the parental role, making no mention that in Matthew's case, one of his parents is disabled and incapable of looking after him.

66    There is no specific mention of Matthew's interests in this section, other than a brief statement that the applicant 'would potentially be a part-time father figure to [James's] two children'.  But the claims about the applicant's role in Matthew's life went much further than that, and the Tribunal gives no indication that it was aware that Matthew's particular condition might require more of the applicant. The Tribunal's conclusion in this section that the best interests of all of the applicant's grandchildren 'cumulatively' weighed to a limited extent against cancelling the visa also displays no separate consideration of the specific needs of Matthew, which the applicant and Michelle had presented as being acute.

67    It would have been open to the Tribunal to have rejected some or all of those matters after considering them.  But the Tribunal's brief and generalised consideration of the best interests of minor children does nothing to dispel the inference, plainly open, that it did not properly appreciate what was being claimed in respect of Matthew.  This is a failure to meet the minimum standard of consideration of a review applicant's representations that is described in Plaintiff M1/2021.

68    It further follows that the Tribunal, in my respectful view, failed to appreciate that Matthew had particular needs that required specific consideration separately from the interests of the applicant's other grandchildren.  While the Tribunal was not required to specifically avert to paragraph 8.4(3) of Direction 99 in that regard, it can be inferred from all of the above that it did not turn its mind to those specific needs.  While Matthew was specifically discussed in paragraph 109, under the rubric of paragraph 8.3 rather than paragraph 8.4, there is no evidence that this led the Tribunal to determine what, in particular, was in his best interests, separately from the best interests of all the grandchildren, 'cumulatively'. Failing to comply with Direction 99 was a jurisdictional error (if material): FHHM v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2022] FCAFC 19 at [6] (O‘Callaghan and Colvin JJ, Derrington J agreeing); and Bochenski v Minister for Immigration & Border Protection [2017] FCAFC 68; (2017) 250 FCR 209 at [65] (Bromwich J, Bromberg and Charlesworth JJ agreeing).

69    In resisting ground 1 in respect of Matthew, counsel for the Minister relied on general statements by the Tribunal.  For example, counsel referred to a broad statement at paragraph 93 that the applicant and his wife help look after the grandchildren.  She also referred to broad statements at paragraph 94 that the applicant's grandchildren will not have the benefit of him being around and that his family will experience emotional and psychological hardship if he is removed: T para 98 quoted above at [38].  She referred to the mentions of Matthew in paragraphs 109 and 119 of the Tribunal's reasons.  But none of those mentions are specific enough to demonstrate that the Tribunal had appreciated what exactly was being claimed in relation to Matthew.  None of them displace the straightforward inference from the Tribunal's mistaken ascription of his conditions to James that the Tribunal had not understood what was being claimed.

70    Counsel for the Minister also submitted that the mentions of a child who could only have been Noah at paragraphs 109 and 119 of the Tribunal's reasons shows that Matthew's interests were considered separately.  With respect, I draw the contrary conclusion from those mentions; in particular, paragraph 119 shows no appreciation that there might be any difference between the impact on Matthew were the applicant to be removed and the impact on Noah, who was not claimed to have been diagnosed with any disabilities but who was claimed to be on the receiving end of violent behaviour by Matthew.  Yet the interests of both those children were simply rolled into the cumulative interests of all the grandchildren in paragraph 122.

The errors were material

71    The Minister submits that the highest point to which the errors alleged in ground one (and ground 2) rise is that the Tribunal failed to identify with precision very specific information related to the claims in relation to Matthew.  I do not accept that submission.  The error that has been established has been a failure to appreciate the true claims that were being made in respect of Matthew and a failure to consider whether his special needs meant that his interests should be considered separately to those of his brother Noah, let alone separately to all the other grandchildren of the applicant.  It is plain that if the Tribunal had appreciated the claims that were being made in respect of Matthew, there is at least a realistic possibility that it could have put more weight on his interests and might have made a different decision.

72    Counsel for the Minister further submitted that the weight that the Tribunal gave to the primary considerations in favour of cancellation of the visa - the protection of the Australian community, family violence and the expectations of the Australian community - was such that it was bound to have decided to cancel the visa, even if it had properly appreciated the claims that were being made about Matthew (or James). With respect, to invite comparison of the weight that was afforded to those considerations with the weight that would have been afforded to Matthew's interests if the claims had been appreciated is to invite the Court to embark on its own weighing exercise, and so to reach a conclusion about the merits of the (hypothetical) decision.  That would involve improper speculation as to how the Tribunal might have discharged its evaluative function had it assigned different weight to one of the primary considerations in the mandatory direction:  see LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12 at [15], [35]-[36].

Conclusion on ground 1 concerning Matthew

73    The applicant has made out both of the aspects of his ground of review that concern Matthew.  The errors were material and so jurisdictional.  Ground 1 is upheld on those bases.  Before turning to the other aspects of ground 1, it is convenient to turn directly to ground 2, as it concerns the related claims that were made about James.

Consideration of ground 2

74    The applicant submits that before the Tribunal he claimed that James was 'disabled' and had autism, intellectual impairment and ADHD, and that his primary caregiving of James was crucial to his welfare and survival.  But, as has been said, the applicant contends that the Tribunal conflated the medical conditions of James and Matthew, and ascribed to James the conditions of 'global development delay, and speech and language delay' which had in fact been diagnosed in Matthew: T para 106.

75    The result, according to the applicant, was that in purporting to describe James's conditions, the Tribunal failed to mention that he was disabled and suffered from ADHD and intellectual impairment.  Instead, the Tribunal ascribed to James the conditions just mentioned, which he did not have.  According to the applicant, the Tribunal thus failed to appreciate the claims that had been made in respect of James, in particular the claims that he was disabled and suffered from ADHD and intellectual impairment.

76    The ground of review in relation to James does not refer to Direction 99, and so can be said to be based on the principles in Plaintiff M1/2021.  But in oral submissions, counsel for the applicant also cast it as a failure to comply with paragraph 8.3(1) of the direction, which required consideration of any impact of the decision to cancel on James, who is an immediate family member of the applicant and an Australian citizen.

The claims and evidence that were before the Tribunal in relation to James

77    The first letter that the applicant's migration agent sent to the Department made the claim clearly that cancellation of the visa would impact James, although an adult child, because the applicant was still caring for him.  That in turn was ascribed to three conditions, 'Autistic Disorder, Intellectual Impairment and ADHD'.  Supporting material was provided about those conditions:  see [31] above.  The claim was also made in the letter that, should the applicant's visa be cancelled, James 'would not be able to survive without the care of his father'.  Further detail was given as to the impact on James of the loss of the applicant's income:  see [22]-[24] above.

78    In addition, the claim was squarely made that because James would not be able to survive by himself in Australia, he may have to accompany the applicant to Tonga, and in view of his conditions, that will bring stress that may further impact on his health:  see [24] above.

79    The representations about the applicant's role as a carer for James due to his diagnoses were repeated in a second letter from the migration agent to the Department:  see [25] above.

80    These claims were supported by a detailed statutory declaration of the applicant which said that James had been diagnosed with 'autism, ADHD, intellectual impairment and epilepsy'.  The applicant described himself as the primary caregiver for James.  He said that James suffers from frequent fits:  see [25] above.  A further detailed witness statement of the applicant was before the Tribunal which made similar claims:  see [27] above.

81    Similar detailed claims appeared in witness statements by Michelle, who referred to the challenges she would face looking after James by herself given his size and also given her own struggles with anxiety and depression:  see [28] and [31(7)] above.  Michelle’s second statement of 15 March 2024 described a trial period of James living on his own which proved unsuccessful, as he was not able to look after himself and Matthew.  A letter from James himself indicated that he had 'always depended on my Dad' and 'I can't depend on myself':  see [31(5)] above.

The Tribunal's treatment of those claims

82    The Tribunal's specific consideration of James (under the heading of 'Strength, nature and duration of ties to the Australian community') commenced by saying that James has 'autism spectrum disorder level 3, global developmental delay, and speech and language delay': T para 106.  That is in fact a (partial) statement of the diagnosis of Matthew's conditions that had been diagnosed in February 2024:  see [32] above.  There was nothing in the materials that described James's autism as level 3; that was the diagnosis given to Matthew.  As I have already found, is plain that the Tribunal got mixed up, and referred to Matthew's diagnosed conditions as if they were conditions of James.  The Minister accepts that this was an error, although for reasons described below, not a jurisdictional one.

83    The Tribunal then turned to a relatively detailed, if selective, account of some of the evidence about James.  It chose to emphasise evidence that James was independent; that was its prerogative.  It downplayed evidence about his frequent fits and whether that meant that he could not be left alone, and noted that NDIS assistance would be available.  All this was within the Tribunal's fact-finding function. The Minister claims this consideration sufficiently identified the impact of the applicant's removal on James despite confusing Mathew and James's diagnoses.

84    However, in referring to James as having Matthew's conditions, the Tribunal must be taken not to have understood that he was claimed to have (and had been diagnosed as having) intellectual impairment and ADHD.  Consistently with that, the Tribunal's reasons show no deliberation about the possible impact on a person with those conditions if the applicant were to be removed to Tonga.

85    Another claim of which the Tribunal shows no awareness is that if the applicant is removed to Tonga, James may have to accompany him and this will have an especially adverse impact on him given his conditions.  The possibility that James would have to go to live in Tonga was a credible one, given the other evidence of the difficulties that Michelle would experience in looking after James on her own and the role that the applicant had taken in caring for him.

The Tribunal erred

86    As I have said, the applicant relied on both the paragraph 8.3(1) of Direction 99 and on the principles in Plaintiff M1/2021 in respect of ground of review 2 concerning James.  It is only necessary to apply the latter to the reasons of the Tribunal here.  When that is done, it appears that the Tribunal failed to understand and evaluate the claims about James's conditions, and overlooked or ignored an important claim that arose out of them.

87    To begin with, the Tribunal simply did not appreciate, and therefore did not assess, how cancelling the visa might impact on someone with intellectual impairment and ADHD.  On the face of its reasons it did not appreciate that James had those conditions.  The Tribunal's reasons reveal no deliberation about the effect of cancellation of the visa on someone with those conditions at all.  That, together with the Tribunal's misstatement of his actual diagnosis, indicate that the Tribunal failed to understand the claims that were being made.

88    It would be no answer to say that the conditions that it did identify - 'global developmental delay, and speech and language delay' - amount to the same thing.  First, those conditions do not include ADHD, and second, the impact of cancellation on a fully grown adult with intellectual impairment (James's actual diagnosis) may well be different to the impact on a person with 'developmental delay, and speech and language delay' (emphasis added), conditions more apt to describe a child who is still growing.

89    In addition to the Tribunal's misstatement of James's conditions, it appears to have ignored or overlooked the claim that he may have to go to Tonga, and would suffer there because of his conditions.  For while it embarked on a relatively detailed discussion of aspects of the evidence about James, it entirely omitted any mention of that claim.  It is true that at one point the Tribunal said that it was not realistic for any of the applicant's family members to accompany him to Tonga, but this is framed in terms of accepting a claim made about the impact of removal on the applicant (see T para 94 quoted at [38] above); it does not indicate that the Tribunal considered and rejected the claim that was being made about James.  Rather, the detail with which the Tribunal addresses other matters, not obviously more pressing than this claim, gives rise to the inference that it overlooked the claim:  see for comparison Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593 at [47].

90    The Minister submits that the Tribunal properly considered the extent to which James relied on the applicant and Michelle, and that there was a detailed analysis of that reliance and of their involvement with him in the paragraphs quoted at [39] above.  He submits that the admitted failure by the Tribunal to specify James's particular diagnosis did not have a bearing on that consideration and the Tribunal then correctly and comprehensively identified the impact of the removal of the applicant on James.  However, for the reasons I have given, the misidentification of James's conditions may have had a bearing on the Tribunal's consideration of his interests, and that consideration was not comprehensive:  the Tribunal overlooked the claim that he may have to accompany the applicant to Tonga.

91    If am wrong on that last point, then the lack of any mention of the claim in the Tribunal's reasons could only be because the Tribunal decided that it was not worthy of any weight, and so not worthy of discussion.  If that is what happened, then that decision would not be within the bounds of rationality or reasonableness:  see Plaintiff M1/2021 at [25].  As I have noted, the claim found substantial support from the evidence about the role that the applicant took in caring for James and the financial, psychological and physical challenges that Michelle would face looking after him (and Matthew) on her own.  It was, of course, within the Tribunal's proper exercise of its statutory functions for it not to accept that evidence, or to give it little weight, or to find that the prospect of James living in Tonga was not a realistic one.  But it would not have been rational or reasonable for the Tribunal to form such a dismissive view of this claim that it did not warrant any mention in its reasons.

92    My primary findings, however, are that the Tribunal failed to appreciate important aspects of the claims that were made about James's conditions and what might follow from them (including if he were to go to live in Tonga), and so failed to discharge its statutory functions to the minimum standard outlined in Plaintiff M1/2021.

The errors were material

93    The observations about the materiality of the errors pertaining to Matthew may also be made in relation to James.  Further, the threshold of materiality is not demanding or onerous:  Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 276 CLR 80 at [46]-[47], [127]; LPDT at [14].  I have already explained how the conditions that the Tribunal ascribed to James cannot be equated with those that James actually had.  It is easy to see, as a matter of reasonable conjecture, how a proper appreciation of James's intellectual impairment and ADHD, and/or a proper appreciation of what was said to be the impact on him if he were to accompany the applicant to Tonga, could have led to more weight being put on his interests and so to a different outcome.

Conclusion on ground 2

94    The Tribunal erred in its approach to the claims made about James by misunderstanding those claims and overlooking an important aspect of them.  The errors were material, and so jurisdictional.  Ground 2 is upheld.

The other aspects of ground 1

95    Given the conclusions I have reached about ground 1 in relation to Matthew and ground 2, it is appropriate to deal with the other aspects of ground 1 briefly.

Ryan

96    The applicant claimed before the Tribunal that Ryan was 'not coping' since the suicide of his father, Andrew.  It appears that Ryan lived in Brisbane with his mother at this time.  The applicant said that he had been trying to console Ryan over the telephone.  He now contends that in breach of paragraph 8.4(1) of Direction 99, the Tribunal failed to deal with that claim.

97    I do not accept that contention.  The reference to Ryan was brief and there was nothing either explicit, or clearly arising from the materials, which suggested what the impact would be on him if the applicant were to be removed from Australia.  The applicant's evidence was that he was consoling Ryan by telephone and the Tribunal found that this kind of contact could continue if the applicant were to be removed to Tonga:  see [42] above.

98    The Tribunal explicitly acknowledged the emotional hardship that the applicant's family has been suffering following Andrew's death.  It referred to Ryan specifically in the same paragraph, indicating that it had him in mind in that regard.  It found that the applicant's removal would cause further emotional and psychological hardship, a reference back to the hardship caused by the loss of Andrew:  see [38] above.  It also made the findings mentioned above to the effect that it was in the best interests of all the applicant's grandchildren for him to remain in Australia.

99    There is no basis to believe that the Tribunal failed to understand the nature of the claim that was being made about Ryan.  Given the relative brevity of that claim, it can be taken to have been subsumed in the broader findings that have just been described:  see e.g. Applicant WAEE at [47].

100    For similar reasons, the applicant has not established that the Tribunal failed to consider the extent to which Ryan's best interests differed from those of the applicant's other grandchildren.

101    The Tribunal's deliberations in relation to Ryan's interests were commensurate to the importance those interests assumed in the applicant's representations:  see e.g. Singh v Minister for Home Affairs [2019] FCAFC 3; (2019) 267 FCR 200 at [37(1)] (Reeves, O'Callaghan and Thawley JJ).  The ground of review in relation to Ryan is not made out.

Patrick's children

102    The applicant's claim here is that the Tribunal failed to consider the extent to which the interests of Patrick's three children differed among themselves and the extent to which they differed from the interests of the applicant's other grandchildren.

103    First, there was no suggestion that the interests of Patrick's children did differ between themselves, so there was no need for the Tribunal to avert to whether they did.

104    Second, as to whether their interests differed from those of the other grandchildren, the only reference to their interests specifically came in a statement made by Patrick, their father, to the delegate.  This was not repeated before the Tribunal, not made by the applicant in his statement or statutory declaration, and not highlighted in any submission to the Tribunal.  I do not consider that the contention that the interests of Patrick's children diverged from those of the other grandchildren emerged clearly from the materials before the Tribunal.

105    The ground in relation to Patrick's children is not upheld.

Disposition

106    The applicant has succeeded in relation to the grounds he raises in respect of Matthew and James.  The Tribunal's decision will be set aside and the matter will be remitted to the Administrative Review Tribunal for determination according to law.  The Minister must pay the applicant's costs of the application.

Associate:

Dated:    28 April 2025