Federal Court of Australia

Ash v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 467

ORDERS

THE COURT ORDERS THAT:

1.    The originating application be dismissed.

2.    The applicant pay the first respondent’s costs to be taxed if not agreed.

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

REASONS FOR JUDGMENT

FEUTRILL J:

Introduction

1    Section 501(3A) of the Migration Act 1958 (Cth) provides that the visa of a non-citizen must be cancelled if the first respondent (Minister) is satisfied that the person does not pass the character test because of a substantial criminal record (relevantly, where the person is sentenced to a term of imprisonment of 12 months or more) and the person is serving a term of imprisonment on a full time basis in a custodial institution for an offence against an Australian law. The applicant, a citizen of the United Kingdom, had his visa cancelled on that ground.

2    Pursuant to s 501(5) of the Act, the rules of natural justice do not apply to a decision made under s 501(3A). However, the Minister must, as soon as practicable after the cancellation decision, invite the former visa holder to make representations to the Minister as to the revocation of the cancellation decision: s 501CA(3). Then, s 501CA(4) provides that the Minister may revoke the cancellation decision if the former visa holder makes representations in accordance with the invitation and, relevantly, the Minister is satisfied that ‘there is another reason why the original decision should be revoked’.

3    The applicant made representations to the Minister, but a delegate of the Minister was not satisfied that there was another reason the cancellation decision should be revoked. The applicant then sought review of the delegate’s decision by the Administrative Appeals Tribunal (Tribunal) under s 500(1)(ba) of the Act (as then enacted). The Tribunal affirmed the delegate’s decision. The applicant then applied to this Court for judicial review of the Tribunal’s decision. The Tribunal has been abolished, but its decision may be set aside and the matter remitted to the second respondent (Administrative Review Tribunal) for re-determination according to law if the applicant demonstrates jurisdictional error on the part of the Tribunal.

4    The applicant is now in his thirties. He entered Australia in 2008 with his parents at the age of 16. He has two minor children who are Australian citizens. Each child has a different mother who has custody of the child. Amongst other reasons, in his representations to the Minister and in the case he advanced in the Tribunal, the applicant claimed that it was in the best interests of his minor children that the cancellation decision be revoked so that he would not be separated from his children. The Tribunal accepted that the best interests of the children weighed strongly in favour of revocation but that consideration did not outweigh other relevant considerations that were factors against revocation.

5    The applicant contends that the Tribunal’s decision was affected by jurisdictional error on three grounds related to the manner in which it addressed the best interests of his minor children. The applicant alleges that these were all errors in the performance of the Tribunal’s statutory function and they were material because, absent error, they could have made a difference to the Tribunal’s weighing exercise of the factors in favour and against revocation.

6    The applicant contends that the Tribunal was required to read, identify, understand and evaluate his representations as a whole and, in so doing, evaluate any substantial and clearly articulated arguments concerning the best interests of his children. The first two grounds relate to that duty. The applicant alleges that the Tribunal failed to (1) identify and (2) evaluate a substantial and clearly articulated argument about the best interests of his eldest son in connection with that son’s attention deficit hyperactivity disorder diagnosis. He also alleges that the Tribunal failed to evaluate his representations, as a whole, about the best interests of his children and, instead, merely accepted the Minister’s submissions on that matter.

7    The applicant contends that the Tribunal was obliged to comply with a direction the Minister had made under s 499 of the Act that provides guidance to decision-makers when exercising the power under s 501CA(4) of the Act. Amongst other things, that direction required the Tribunal to consider the individual interest of his children to the extent that they may differ and to consider the likely effect that separation would have on each child taking into account their ability to maintain contact in other ways. In his third ground, the applicant alleges that the Tribunal failed to give individual consideration to the interests of his eldest son in connection with that son’s ADHD and failed to consider the extent to which the applicant’s ability to maintain contact with that son, in particular, was affected by that son’s ADHD and limitations on contact by telephone imposed by that son’s mother.

8    For the reasons that follow, I do not accept that the Tribunal made any of the errors alleged. The application must be dismissed and the applicant should pay the Minister’s costs.

Legislative framework

9    As already mentioned, s 501(3A) of the Act provides that the Minister must cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the character test in certain circumstances. And, s 501CA(4) provides a mechanism by which a person whose visa has been cancelled under s 501(3A) can have that cancellation decision (referred to as the original decision) revoked if the Minister is satisfied that there is ‘another reason’ why the original decision should be revoked.

10    Section 496 of the Act makes provision for the Minister to delegate to a person any of the Minister’s powers under the Act. Decisions under s 501CA(4) are usually made by a delegate of the Minister. In those circumstances, at the relevant time, the former visa-holder had a right to request the Tribunal to review a decision to refuse to revoke a cancellation decision: s 500(1)(ba). Subject to certain procedural modifications, a review under s 500(1)(ba) was undertaken by the Tribunal in its general division. As mentioned, that is the process that had taken place with respect to the cancellation of the applicant’s visa.

11    In deciding whether there is ‘another reason’ why the mandatory cancellation of a former visa-holder’s visa should be revoked, a delegate of the Minister and the Tribunal was bound, by s 499(2A), to comply with any direction given by the Minister under s 499(1) of the Act. At the time of the Tribunal’s review the Minister had given Direction 99. Direction 99 was made on 23 January 2023 with effect from 3 March 2023. In this case, the Tribunal was bound to comply with Direction 99.

12    Paragraph 5 of Pt 1 of Direction 99 contained a preamble that set out the objectives of the direction. Amongst other things, para 5.1 indicated that the purpose of the direction was to guide decision-makers in performing functions or exercising powers under, relevantly, s 501CA of the Act. In circumstances where a non-citizen did not pass the character test, the decision-maker was to consider whether there was another reason to revoke the cancellation given the specific circumstances of the case.

13    Paragraph 5.2 set out principles that provided the framework within which decision-makers were to approach their task of deciding, relevantly, whether to revoke a mandatory cancellation under s 501CA. The factors (to the extent they are relevant in a particular case) that were to be considered in making that decision were set out in Pt 2 of Direction 99.

14    Paragraph 8 of Pt 2 of Direction 99 set out the primary considerations for decisions under s 501CA. These were: (1) protection of the Australian community from criminal or other serious conduct; (2) whether the conduct engaged in constituted family violence; (3) the strength, nature and duration of ties to Australia; (4) the best interests of minor children in Australia; and (5) expectations of the Australian community. Paragraphs 8.1-8.5 described the primary considerations in detail and provided guidance to decision-makers as to the manner in which each of these considerations was to be taken into account.

15    Paragraph 9 of Pt 2 of Direction 99 set out the other considerations, being considerations that were to be taken into account when a decision was made under s 501CA(4) but were generally to be given less weight than primary considerations: Direction 99 para 7(2). These were (but were not limited to): a) legal consequences of the decision; b) extent of impediments if removed; c) impact on victims; and d) impact on Australian business interests. Paragraphs 9.1-9.4 described the other considerations in detail and provided guidance on the manner in which each consideration was to be taken into account.

16    Relevantly, para 8.4 of Direction 99 was in the following terms.

8.4    Best interests of minor children in Australia affected by the decision

(1)    Decision-makers must make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is, or is not, in the best interests of a child affected by the decision.

(2)    This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to refuse or cancel the visa, or to not revoke the mandatory cancellation of the visa, is expected to be made.

(3)    If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.

(4)    In considering the best interests of the child, the following factors must be considered where relevant:

a)    the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);

b)    the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;

c)    the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;

d)    the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;

e)    whether there are other persons who already fulfil a parental role in relation to the child;

f)    any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);

g)    evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;

h)    evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.

The applicant’s case in the Tribunal concerning the best interests of his eldest son

Applicant’s statement of facts, issues and contentions

17    The applicant’s statement of facts, issues and contentions provided to the Tribunal included the following submission (footnotes omitted):

BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA AFFECTED BY THE DECISION

114.    The Direction instructs decision-makers to make a determination about whether visa cancellation is in the best interests of any minor children in Australia who will be affected by the decision. Each child's interests must be considered individually.

115.    The Applicant has two sons in Australia under the age of 18 who will be affected by the Tribunal's decision.

[Applicant’s eldest son]

116.    The Applicant states:

I've always been a major part in [his] life. Me and … his mother have a private custody agreement in place which works as follows; as it is with [my youngest son], [he] is dropped off at my mum and dad's at the end of my swing where he stays until I arrive back in Busselton after my flight home from site. I then have full custody of the boys until the end of my week off to which I drop them to their mothers house the day before I fly out.

[My eldest son] is an extremely sensitive young boy and he suffers from ADHD and is medicated for it. I am also diagnosed with ADHD so [he] has been able to relate to me and I have been a pillar of strength for him. Throughout my incarceration I have had constant contact with him through phone calls, multiple letters and cards.

…

The impact from my incarceration alone has affected [him] immensely ... He is emotionally distraught knowing there is a chance I could be sent back to the UK and that he may lose his dad forever.

Since my incarceration he has been misbehaving and playing [up] in school and I strongly believe it is from the emotional strain caused by me being in prison. [My eldest son] will not only lose me if my visa is cancelled but his relationship with his little brother … will be greatly affected as he only gets to see him when I have him and I have them both in my care.

117.    [The applicant’s eldest son] is an 11-year-old child currently living with his mother and on occasion with his paternal grandparents. Before the Applicant was imprisoned and detained, [he] would live with his father and [younger] brother during "off swings". This was as per a verbal agreement the Applicant had with [his mother].

118.    Apart from resulting in an ongoing separation from their father, the Applicant's behaviour has not had a negative impact on his sons or any physical or emotional trauma. He has played a positive role in his sons' lives and will continue to do so until the boys turn 18 (for [the applicant’s eldest son] this is seven years away). Given the Applicant's low risk of reoffending and commitment to sobriety, as well as his increased family support and ongoing rehabilitation, there is no evidence that his sons will be negatively impacted by his presence in Australia.

119.    The impact of a decision to not revoke the Original Decision however will have devastating consequences for [the applicant’s eldest son]. There is no possibility that [he] will accompany his father to the United Kingdom and it is very unlikely he will be able to travel to visit him while a minor. In an undated statement received by the Applicant in March 2024, [the applicant’s eldest son] states:

Please let my dad home, even though he has done silly things ... It will make me very very sad if he can't come home we want to do lots of things together and me and my brother will miss him so much.

120.    [The applicant’s eldest son] has been diagnosed with Attention Deficit Hyperactivity Disorder (ADHD), for which he is medicated. The Applicant is awaiting receipt of documents relating to his son's medication and will provide these to the Tribunal once they are available.

121.    The Applicant's mother and father have both expressed their concerns about the impact that a non-revocation decision would have on [the applicant’s eldest son]. [The applicant’s mother] states:

[The applicant's eldest] son is at that turning point in his age, not a little boy but still not quite a teenager. His emotions and [behaviour] can at times be all over the place. I am very close with [the applicant’s eldest son], and he confides to me of his worries that he can't see his dad and how much he misses him. [The applicant] needs to be part of his life, be there for him through [his] struggles and his problems, to help guide him and teach him not to make bad choices and what consequences mean in life. I truly believe [the applicant’s eldest son] will suffer immensely if his dad is deported, no child should suffer his parents' bad choices, especially if there is a chance of redemption. If [the applicant] goes back to the UK there is a high possibility they will not see each other physically for many years and this is devastating.

122.    If the Original Decision is not revoked, then [the applicant’s eldest son] will not only lose the opportunity to have a meaningful relationship with his father, but his ability to maintain a meaningful relationship with his [younger] brother … will also be drastically affected. Prior to their father's incarceration the boys would spend the same week with them so they could foster their sibling relationship at the same time as their paternal one. If the Applicant were unable to return to Australia then [his sons] would not spend as much time together and this would exacerbate the emotional impact of the decision on them both.

[The applicant’s youngest son]

123.    Many of the submissions made in relation to [the applicant’s eldest son] apply equally to his five-year-old brother .... There is no indication that [the applicant’s youngest son] has suffered physical or emotional trauma from the Applicant's offending behaviour or drug use, however he stands to be detrimentally affected if his father is unable to remain in Australia. 13 years have yet to pass before [the applicant’s youngest son] turns 18, and the Applicant hopes to continue to be a positive influence and role model in his son's life during that time. [The applicant’s mother] states:

[My youngest son] is a beautiful little soul, he is so loving, kind and funny. [The applicant] calls him daily and they have a wonderful relationship. [He] is now five and constantly asking his daddy "When are you coming home, you have been at work for too long now?" He asks this as we tell him daddy is working away, as it is too hard on such a little boy to understand the reality of where his dad is. [He] has just started school and is so desperate to have his dad come to see his school and teacher, to pick him up and give him cuddles

124.    The Applicant's friend … has also witnessed the relationship between the Applicant and his sons and believes - as do his parents and other family members - that the Applicant would not risk the opportunity to maintain a meaningful relationship with his sons again by relapsing into drug use or reoffending

Best interests of minor children

125.    The potential long-term impact of these types of decisions on young children in Australia was discussed in Bettencourt v Minister for Immigration. Migrant Services and Multicultural Affairs [2021] FCAFC 172. In that case, the court held that the Minister's decision "failed to form the required state of satisfaction" in relation to the impact on the applicant's Australian citizen children if separated from their father. It noted at [44] that the assessment by the Minister is required to include the "nature, extent or duration" of the harm caused to the children by being permanently separated from their father.

126.    There is a plethora of research that demonstrates the detrimental physical, emotional and psychological impact that ongoing separation from one or both parents has on a young child.

127.    In the Tribunal decision Snowden and Minister for Immigration. Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 4504 (2 December 2021) (Snowden) the best interests of the applicant's four children weighed strongly in the applicant's favour. In determining that there was another reason why the visa cancellation should be revoked, Senior Member Puplick AM stated at [98] and [99] (emphasis added):

The Respondent sought to establish that the Applicant would be able to maintain some sort of relationship with his children from New Zealand were he returned there. This is undoubtedly true in a technological sense and to some degree it would be no better or worse that his current method of daily communication from immigration detention. It is fanciful however to believe that a meaningful parental relationship can be established, matured and maintained via some sort of electronic or social media platform - even when the technology works. The evidence of Mr Snowden (Jeffrey) to the effect that the family would not relocate to New Zealand until the last of the boys reached the age of 18 rules out any suggestion that this is a viable option to keep the family together.

128.    While technology would allow the Applicant to communicate with his sons if they are living in separate countries, it would be no substitution for [the applicant’s sons] having no father physically present in their lives. Technology therefore is by no means an adequate substitute for the meaningful physical presence the Applicant has stated he wishes to have in his sons' lives in Australia (see paragraph 8.4(4)(d) of the Direction).

129.    The Australian community would expect that the principles of the CRC are upheld, and that the Applicant's sons continue to be provided with a safe and loving environment which will enable [them] to grow and develop throughout their childhood and into adulthood. A permanent separation from their father would see Australia acting contrary to its obligations under the CRC and in direct opposition to what is in the children's best interests.

130.    Therefore, the best interests of the Applicant's sons can only be served by a decision to revoke the Original Decision. A decision to the contrary will force two Australian citizens to face life-long damaging consequences. Given the Applicant's low risk of reoffending, his commitment to rehabilitation and his ongoing family support in Australia, the best interests of his Australian citizen children should outweigh all considerations weighing against revocation.

Materials before the Tribunal

18    The materials before the Tribunal included the decision of the delegate and attachments to that decision. The applicant’s request for revocation of the cancellation decision and his personal circumstances form were attachments K and K1 to the delegate’s decision. The request for revocation referred to page 1 of an attachment as the reasons for revocation. The personal circumstances form identifies the applicant’s two sons as his ‘minor children’. In spaces allocated for describing his relationship with his children and the impact his removal would have on them reference was again made to certain pages of the attachment. The relevant attachment appears to be attachment J to the delegate’s decision. Attachment J is a handwritten document. It contains the quotation in the applicant’s SFIC [116]. (As to the statement that the applicant relates to his eldest son through a shared experience of ADHD, there were materials before the Tribunal that tended to confirm that the applicant also has ADHD.)

19    In another handwritten submission addressed to the decision-maker it is said that the applicant’s eldest son was ‘really struggling without me guiding him as a father should be’ and that he had ‘just been diagnosed with ADHD and at the time he needs me most I am not there’. In an email to the decision-maker similar submissions were made in which the applicant expresses concern about the long-term consequences that the separation may have on his eldest son’s mental health and overall quality of life and added ‘I implore you to consider my unique circumstances and the substantial hardship my deportation to England would inflict upon my family, particularly [my eldest son]’. The applicant’s father made a similar submission regarding the eldest son’s ADHD, emotional struggle without the applicant, and the impact removing the applicant to the UK would have on his sons, in particular his eldest son. A number of other people also made similar submissions.

20    The delegate’s decision records that the delegate had regard to ‘the special needs of [the applicant’s eldest son] who suffers from severe ADHD’ and that ‘there has been a significant noticeable deterioration in his condition due to the physical absence of his father, which raises great concerns for [that son’s] mental health and his quality of life’.

21    In the proceeding before the Tribunal the applicant submitted a statement he made, a statement of his father and a statutory declaration of his mother. None of these documents were in the materials before the delegate. The applicant’s statement contains much the same information as is in his representations to the delegate. The statement of the applicant’s father elaborated on these submissions. The applicant also provided the Tribunal with similar evidence or submission made by the principal of a rehabilitation facility who had been supporting the applicant to move away from substance misuse. In the declaration of the applicant’s mother she said that the applicant’s eldest son was at a ‘turning point in his age’ whose behaviour ‘can at times be all over the place’. She expressed the view that the eldest son would ‘suffer immensely if his dad is deported’. She also drew attention to the separation that would result between the applicant’s two sons.

22    When the applicant was called to give evidence before the Tribunal his evidence-in-chief was identified as comprising a number of statements that the applicant had made which were included in the bundles of documents before the Tribunal. These included each of the statements to which reference is made in [18], [19] and [21] of these reasons. The applicant also gave direct evidence-in-chief which was to a similar effect to his written statements and submissions. Amongst other things, during his evidence the applicant said:

And to your knowledge how have your sons coped with you being in prison and detention?---It’s been really stressful. It’s been really hard. First of all on [my eldest son], he was at the age where he could understand my situation so we told him the truth and told him that – what I was in prison for and we had some pretty emotional talks about it and he feels like I’ve let him down and – which I have and he’s affected – he’s been acting up in school and with [my youngest son] he was at the age where I couldn’t really explain the situation so me and [his mother] decided just to tell him I’ve been away at work until he’s old enough for us to tell what was going on, what’s actually happened and he’s constantly reminding me on the phone, ‘Why are you at work for so long?’ And like, you know, ‘When are you coming home?’ and I can see it’s affecting both of them a lot emotionally. They don’t see each other much anymore as well due to me being in prison. It’s pretty difficult for [each of their mothers] to organise them seeing each other.

23    The applicant’s mother was also called to give evidence. During her evidence-in-chief she gave much the same evidence as was included in her statutory declaration. Amongst other things, during her evidence she said:

So do you think that [the eldest son] would be affected if his dad was removed from Australia?---Absolutely, definitely yes. He is his world. He’s going into high school next year and he needs his dad. He’s constantly asking, ‘Why is dad not home now?’ You know, he’s been away – he’s done – and he’s gone, why are they – why even more and he knows that this could be the be all and end-all and [the applicant has] not come home and he’s absolutely devastated. He’s really struggling at school. It’s had a huge impact on his behaviour because he’s now stressing and worrying what’s happening to his dad. [The applicant] needs to be there for his young man to help him through – to help him grow, to help him become the child and the man that he should be. You know, he’s a – he’s a wonderful kid but he has got issues and he needs support and he needs support of both parents. His mum’s doing a great job but he – he needs his dad. He needs his dad to be there with him as well.

When you’re saying he’s got issues, do you feel like those have changed since [the applicant] went to prison?---Yes, they’ve got – they’ve got harder. They’ve got worse definitely, yes.

24    In the applicant’s statement provided to the Tribunal he says that it would not be possible to maintain a meaningful relationship with his children if he were removed from Australia. He makes reference to the limitations of communications over the telephone and to the difficulties of arranging convenient times to make calls due to time differences. The mother of the applicant’s younger son made a statement to a similar effect in her statutory declaration. In the applicant’s evidence-in-chief in the Tribunal he described that his sons, especially his eldest son ‘with his ADHD’, became bored with telephone calls while he was incarcerated and that it was ‘very hard to communicate … through the phone’. In the applicant’s mother’s evidence-in-chief she said that the eldest son’s mother would not allow the applicant to make telephone calls to her house and, therefore, the eldest son could only talk to the applicant when he was staying with his paternal grandparents.

25    Neither the applicant’s father nor the youngest son’s mother was called to give evidence before the Tribunal. Neither the applicant nor his mother was cross-examined on the evidence to which reference has been made. Therefore, none of these witnesses’ evidence on these relevant matters was challenged in the proceeding before the Tribunal.

Materials to which the applicant made specific reference

26    Apart from the materials to which reference was made in the applicant’s SFIC, relevantly, the applicant’s legal representative made an oral submission to the Tribunal to the effect that the applicant’s eldest son had been diagnosed with ADHD for which he was medicated. The following submission was then made:

… The evidence is clear that phone calls and video calls are not enough for this applicant to maintain a meaningful relationship with his children. He stated, ‘It’s hard to connect with kids over the phone because they get bored easily, and they’re not interested in phone calls. They need a dad who’s there to do stuff with them.’ To take them to school, to comfort them when they’re sad, to show them how to do things, to play games with them, to help them learn lessons he has without them having to go through those mistakes themselves.

Physical presence is imperative to building and maintaining a relationship and rapport. These boys need their dad physically in their lives. Not revoking the applicant’s visa cancellation will mean that this applicant can never return to Australia on any visa. So that means not seeing his children again unless someone can physically take them to the UK to visit him. This is very unlikely due to finance, distance and custody arrangements. It will be extremely difficult for the children to maintain a meaningful relationship with their father. The applicant’s mother also gave evidence that phone contact with [the applicant’s eldest son] is not always possible as [his mother] doesn’t always allow [him] to speak on the phone with the applicant.

The family therefore has strong concerns, in particular for the applicant’s relationship with [his eldest son], if he were removed. The applicant played a significant role in his children’s lives before he went to prison. Not only did he provide financial support, but he also cared for them in his home. He fed them, he changed their nappies and clothes. He bathed them; he helped them learn to talk. He comforted them when they were sad. He took them camping; he played games with them. He taught them to DJ. He did everything a father who cares about the upbringing of his children did.

If allowed to remain in Australia, this is the role that he wants to continue until his children turn 18 and beyond. Not only will this benefit his boys, but it will also provide respite and support to their mothers, which will have the flow-on effect of providing more stability and certainty for everyone involved. The applicant’s children miss him dearly and are desperate for him to come home. There’s no evidence the applicant has put them in danger or that they’ve ever witnessed any criminal behaviour of his. Overall, this is a significant factor and weighs very strongly in favour of revoking the cancellation.

27    As to the submissions and statements to which reference has been made in [18]-[21] of these reasons, as already mentioned, the quotation in the applicant’s SFIC [116] is taken from attachment J to the delegate’s record of decision and was part of the applicant’s original representations to the Minister in response to the invitation made under s 501CA(3) of the Act. The quotation in SFIC [119] is taken from a handwritten statement of the applicant’s eldest son. All of the other submissions in this part of the SFIC are supported by references to a statutory declaration of the applicant’s mother except for SFIC [126] which is supported by a reference to certain publications. Therefore, apart from the submission that was part of the original reasons for revocation, the eldest son’s statement, and the applicant’s mother’s statutory declaration, no specific submission or reference was made in the applicant’s SFIC to any of the other material that addressed the best interests of the applicant’s sons to which reference is made in the preceding paragraphs of these reasons.

The Minister’s case in the Tribunal

28    The Minister’s statement of facts, issues and contentions provided to the Tribunal included the following submissions concerning the best interests of the applicant’s sons:

48.    When considering the relevant factors in Direction 99, the following observations are made:

48.1.    Prior to his incarceration, the applicant had informal access arrangements with the mothers of his children. When the applicant returned from a mining FIFO role the children would be dropped off by their respective mothers at his parents’ home. This enabled him to spend time with both children and for the children to spend time with each other as siblings, noting that they do not live together when they are living with their mothers.

48.2.    The applicant has maintained contact with his sons during imprisonment and whilst in immigration detention. There are reports that the children have struggled emotionally due to the absence from their father and would continue to suffer great emotional and financial hardship if he were removed from Australia.

48.3.    If the applicant was removed from Australia, his sons would have limited contact with each other as siblings, which would affect their relationship.

49.    The respondent accepts that the best interest of the applicant’s minor children is for him to remain in Australia. The respondent accepts this consideration weighs strongly in favour of revocation.

(Footnotes omitted.)

The Tribunal’s reasoning

29    Taking into account the Minister’s observations concerning the best interests of the applicant’s sons, the main points of difference between the applicant and the Minister centred on the weight to be given to the primary considerations in para 8.1 (protection of the Australian community), para 8.2 (family violence committed by the non-citizen), para 8.3 (strength, nature and duration of ties to Australia) and para 8.5 (expectations of the Australian community) and the other considerations, to the extent relevant, in para 9 (legal consequences of the decision, extent of impediments if removed, impact on victims and impact on Australian business interests). The vast majority of the Tribunal’s reasons were devoted to consideration and evaluation of the materials, evidence and submissions on these matters. These aspects of the Tribunal’s reasons are quite detailed and contain many references to the materials, evidence and submissions.

30    In contrast, the Tribunal’s reasons concerning the best interests of minor children in Australia affected by the decision are relatively brief with no direct references to the materials or evidence. This aspect of the Tribunal’s reasons contains a general summary of the applicant’s and Minister’s submissions in each SFIC and one paragraph of reasoning as follows:

125.    The Applicant’s SFIC makes the following submissions in relation to his older son:

(a)     He is an 11-year-old child currently living with his mother and on occasion with his paternal grandparents. Before the Applicant was imprisoned and detained, this child would live with his father and brother during the Applicant’s "off swings". This was pursuant to a “verbal agreement” with the child’s mother.

(b)    Apart from separation, the Applicant’s behaviour has not had a negative impact on either child or any physical or emotional trauma to them. There is no evidence that his sons will be negatively impacted by his presence in Australia.

(c)    It is unlikely that the Applicant’s older son would be able to travel to the UK to visit his father. In a note made by him in March 2024, the Applicant’s older son said that he and his brother spent time with the Applicant and that he and his brother will miss the Applicant “so much”.

(d)    The Applicant’s parents have both expressed concern about the impact that the Applicant being deported would have on the older son. A decision not to revoke the cancellation will deny the Applicant’s son the chance of a meaningful relationship with his father. It would also mean that the child would spend less time with his half-brother, the Applicant’s younger son.

(e)    Many of the submissions made in relation to the older child apply equally to his five-year-old brother. There is no indication that the younger child has suffered physical or emotional trauma from the Applicant's offending behaviour or drug use, however he stands to be detrimentally affected if his father is unable to remain in Australia.

(f)    Thirteen years have yet to pass before the younger son turns 18, and the Applicant hopes to continue to be a positive influence and role model. This child calls the Applicant daily.

(g)    Those around the Applicant think that it would be in the children’s best interests for the Applicant to be allowed to remain in Australia.

(h)    There is a plethora of research that demonstrates the detrimental physical, emotional and psychological impact that ongoing separation from one or both parents has on a young child. The Applicant identifies some of that research.

(i)    While technology would allow the Applicant to communicate with his sons if they are living in separate countries, it would be no substitution for having no father physically present in their lives.

(j)    The Australian community would expect that the principles of the CRC are upheld, and that the Applicant's sons continue to be provided with a safe and loving environment which will enable [them] to grow and develop throughout their childhood and into adulthood.

126.    The Minister’s SFIC made the following observations:

(a)    Prior to his incarceration, the Applicant had informal access arrangements with the mothers of his children. When the Applicant returned from a mining FIFO role the children would be dropped off by their respective mothers at his parents’ home. This enabled him to spend time with both children and for the children to spend time with each other as siblings, noting that they do not live together when they are living with their mothers.

(b)    The Applicant has maintained contact with his sons during imprisonment and whilst in immigration detention. There are reports that the children have struggled emotionally due to the absence from their father and would continue to suffer great emotional and financial hardship if he were removed from Australia.

(c)    If the Applicant was removed from Australia, his sons would have limited contact with each other as siblings, which would affect their relationship.

(d)    The Minister accepts that it is in the best interests of the Applicant’s minor children for him to remain in Australia. The Minister accepts this consideration weighs strongly in favour of revocation of the cancellation of the Applicant’s visa.

127.    The observations of the Minister in his SFIC are well made as is the Minister’s acceptance that this primary consideration weighs strongly in support of revocation of the cancellation of the Applicant’s visa. I find that this consideration, the best interests of minor children in Australia, weighs heavily in favour of revocation of the cancellation of the Applicant’s visa.

Grounds of review and summary of the parties’ submissions

The applicant’s case for jurisdictional error

31    The applicant advances three grounds of review. Each has numerous particulars, but, in substance, the contentions are as follows.

32    Ground 1: The applicant contends that he made various representations, by evidence and submissions, as to the reasons why the best interests of his two sons provided ‘another reason’ to revoke the cancellation decision. He asserts that the Tribunal made a jurisdictional error by failing to read, identify and (or) evaluate those representations. There are two limbs to this ground. First, a contention that the Tribunal failed to identify the argument that is the subject of ground 2 in the Tribunal’s summary of the applicant’s submissions (T [125]). Second, a contention that the Tribunal failed to evaluate any of the applicant’s representations, as summarised (T [125]), in that the Tribunal merely expressed agreement with or adopted the Minister’s submissions on the topic (T [126]-[127]). These were errors in that there was a failure to perform the statutory task as articulated by the majority in Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; 275 CLR 582 at [9(1)] (Kiefel CJ, Keane, Gordon and Steward JJ).

33    Ground 2: The applicant contends that he made a substantial and clearly articulated argument to the following effect.

(a)    His older son suffered ADHD which: (i) meant that the applicant had a special bond with that son; (ii) contributed to behavioural difficulties of that son due to the applicant’s incarceration; and (iii) could deteriorate if the applicant were removed from Australia.

(b)    His older son was, more generally, experiencing behavioural difficulties and was at a ‘turning point’.

(c)    His ability to maintain contact with his sons from the UK was limited by the time difference, his older son’s ADHD, and his older son’s mother’s limits on calls.

34    The applicant asserts that the Tribunal made a jurisdictional error in that it ignored, overlooked or misunderstood that (those) substantial and clearly articulated argument (arguments) concerning the best interests, specifically, of his eldest minor son (T [125]–[127]). In so doing, the Tribunal failed to perform its statutory task as articulated by the High Court in Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421 at [13] (Bell, Gageler and Keane JJ), at [105] (Nettle and Gordon JJ).

35    Ground 3: The applicant contends that para 8.4(3) of Direction 99 required the Tribunal to give individual consideration to the best interests of each child to the extent their interests may differ. Further, para 8.4(4)(d) required, where relevant, the Tribunal to consider the likely effect that any separation from the applicant would have on his eldest son, in particular, taking into account that child’s or the applicant’s ability to maintain contact in other ways.

36    The applicant contends that he adduced evidence and presented arguments as to the particular impact that a non-revocation decision would have on each of his children. In particular, he made the argument concerning his eldest son referred to in ground 2. Further, an aspect of that argument was that contact with his eldest son in other ways would be made more difficult because of time differences, that son’s ADHD, and limits that son’s mother placed on telephone calls with the applicant.

37    The applicant asserts that the Tribunal’s consideration of the applicant’s sons (T [125]-[127]) was not individual. The two sons’ interests were objectively different and, therefore, required individual consideration. The applicant asserts that the Tribunal dealt with the impact on the applicant’s children collectively. The applicant also asserts that the likely effect of separation on the eldest son was obviously relevant and there was no engagement by the Tribunal with the impact that separation would have on that son’s ability to maintain contact with the applicant in other ways (such as by video or audio link or telephone). The applicant asserts that failure to give individual consideration to the best interests of his eldest son was a failure to comply with the requirements of Direction 99. The applicant asserts that a material failure to comply with these requirements of Direction 99 is a jurisdictional error: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; 98 ALJR 610 at [31] (Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ, Beech-Jones J agreeing).

38    The applicant contends that each asserted error was material in that each was relevant to the Tribunal’s evaluation of the weight to be attributed to the best interests of his children as a primary consideration. In light of the finely balanced nature of the Tribunal’s weighing exercise, an error free approach could realistically have resulted in a different decision: LPDT at [7].

The Minister’s case against jurisdictional error

39    Regarding grounds 1 and 2, the focus of the Minister’s submissions is on ground 2 and the first limb of ground 1.

40    The Minister submits that the asserted failure to evaluate the information about the best interests of the applicant’s eldest son must be considered in the context of the lack of centrality of the consideration of the best interests of the applicant’s minor children to the issues before the Tribunal and lack of prominence it assumed in the applicant’s case. The Minister argues that the best interests consideration was not central to the issues because it was not in issue that the consideration weighed in favour of revocation and the applicant’s evidence relevant to the consideration was not contested. In that context, the majority of the Tribunal’s reasons were directed at resolving the contested issues and the relatively brief reasons regarding the best interests consideration is consistent with, and explicable by reference to, the manner in which the proceeding was conducted before the Tribunal.

41    The Minister also submits that the Tribunal’s reasons regarding the best interests consideration must be read in the context of the reasons as a whole. The Tribunal’s evaluation of the information that related to the best interests of his minor children was not confined to the section that specifically addressed that consideration. The Tribunal’s reasons on the first primary consideration acknowledged the applicant’s emphasis on the best interests of his children (T [83(c)], [83(q)], [92], [96] and [97]), referred to the premature birth of his eldest son, the custody arrangements, and his current relationships with the mothers of his sons (T [85(a)], [85(g)] and [88(d)]-[88(f)]). In the Tribunal’s reasons on the third primary consideration (strength, nature and duration of ties to Australia) it summarised the various statements and letters provided by the applicant and his witnesses. That information referenced the applicant’s relationships with his sons, the children’s views, his eldest son’s ADHD diagnosis and the effect that removal of the applicant from Australia would have on his sons (T [117]-[119], [121]). The Minister submits that the Tribunal’s reasons dealing with the first and third primary consideration read with its reasons concerning the best interests consideration demonstrate that it read, identified, understood and evaluated the applicant’s representations.

42    The Minister also submits that the Tribunal is not required to refer to every piece of evidence and every contention the applicant made in its written reasons. The absence of a specific reference to particular information does not mean that it has not been considered by the Tribunal. The Minister emphasises that the evidence about the best interests consideration was not contested nor was it contested that it weighed in favour of revocation. Further, in that context, the absence of a specific reference to the evidence regarding the applicant’s ADHD, bond with his eldest son for that reason, and the potential impact that removal could have on his eldest son due to his ADHD were not of sufficient significance that it should be inferred that the evidence of these matters were overlooked or ignored. The Minister submits that these were individual matters that formed part of a broader representation to the effect that the best interests of the applicant’s minor children provided another reason for revoking the visa cancellation. The Tribunal was required to consider the applicant’s representations as a whole and not every individual ‘representation’ was a mandatory relevant consideration.

43    Regarding ground 3, the Minister submits that the Tribunal had regard to the best interests of each child individually, but, in effect, concluded that their interests were the same and the best interests of both children favoured revocation of the visa cancellation. While the Minister accepts that the Tribunal was required to consider the extent to which the interests of each child differed, it was not bound to conclude that the interests were, as a matter of fact, different. The question of fact – the extent to which the interests differed – was a matter for the Tribunal to decide on the information before it. Therefore, the Tribunal complied with para 8.4(3) of Direction 99.

44    The Minster further submits that the Tribunal’s reasons reveal that it turned its mind to the extent to which the applicant’s children’s interests may differ. It made specific reference to their ages (T [125(e)]). The Tribunal referenced the different relationships between the applicant and the mothers of his sons (T [106]). The Tribunal’s summary of the evidence of an expert witness also addressed these relationships (T [88(d)]-[88(f)]). The Tribunal noted the eldest son’s ADHD diagnosis (T [118]).

45    As to para 8.4(d) of Direction 99, the Minister submits that it was not necessary for the Tribunal to make a finding about how the eldest son’s ADHD diagnosis and his mother’s limiting of telephone calls may impact the applicant’s ability to maintain contact in other ways. The Tribunal’s reasons reveal that it understood the difficulties of the applicant’s relationship with the mother of his eldest son and that son had ADHD. The Minister submits that the Tribunal’s findings on these matters can be taken to have been subsumed in the relevant finding to the effect that telephone calls are no substitute for being physically present in his sons’ lives. Therefore, para 8.4(d) of Direction 99 was correctly taken into account and no error has been demonstrated.

Applicable principles

46    The Tribunal was required to ‘read, identify, understand and evaluate’ the applicant’s representations. Relevantly, a majority of the High Court (Kiefel CJ, Keane, Gordon and Steward JJ) in Plaintiff M1/2021 explained a decision-maker’s function when exercising the discretion conferred under s 501CA(4) as follows.

22    Section 501CA(4) of the Migration Act confers a wide discretionary power on a decision-maker to revoke a decision to cancel a visa held by a non-citizen if satisfied that there is "another reason" why that decision should be revoked. The statutory scheme for determining whether the decision-maker is satisfied that there is "another reason" for revoking a cancellation decision commences with a former visa holder making representations. In determining whether they are satisfied that there is "another reason" for revoking a cancellation decision, the decision-maker undertakes the assessment by reference to the case made by the former visa holder by their representations.

23    It is, however, improbable that Parliament intended for that broad discretionary power to be restricted or confined by requiring the decision-maker to treat every statement within representations made by a former visa holder as a mandatory relevant consideration. But the decision-maker cannot ignore the representations. The question remains how the representations are to be considered.

24    Consistently with well-established authority in different statutory contexts, there can be no doubt that a decision-maker must read, identify, understand and evaluate the representations. Adopting and adapting what Kiefel J (as her Honour then was) said in Tickner v Chapman [(1995) 57 FCR 451 at 495], 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 at 40; see also 30, 71], "[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.

(Citations omitted except where noted).

47    Plaintiff M1/2021 concerned the review of a decision of a delegate of the Minister where the representations that the former visa holder made in response to an invitation under s 501CA(3) comprise the applicant’s case for ‘another reason’ for revocation of the cancellation decision. Here, the review concerns the exercise of the Tribunal’s function under s 500(1)(ba) of the Act. That function was for the Tribunal to review the decision of a delegate of the Minister made under s 501CA(4) and form its own view as to the ‘correct or preferrable decision’ on the basis of the materials before the Tribunal at the time of its decision: Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 at 419; Shi v Migration Agents Registration Authority [2008] HCA 31; 235 CLR 286 at [98]. The representations, information and materials before the Tribunal were not confined to those that were before the delegate. But, otherwise, the principles regarding the function of the decision-maker set out in Plaintiff M1/2021 are equally applicable to the applicant’s ‘case’, ‘claims’ or ‘representations’ on review in the Tribunal.

48    The passage from Plaintiff M1/2021 cited above also emphasises the importance of the representations (or, in the case of review by the Tribunal, the applicant’s ‘case’ or ‘claims’ in the Tribunal) to the exercise of the discretion under s 501CA(4). Where, as here, an applicant is legally represented and the applicant’s case is advanced in a statement of facts, issues and contentions in the Tribunal, it is not unreasonable for the Tribunal to be guided by the SFIC as the source of identification of the ‘case’ the applicant advances as ‘another reason’ for revoking the cancellation decision: Grant v Repatriation Commission [1999] FCA 1629; 57 ALD 1 at [17]. That is not to say that, given the nature of the Tribunal’s statutory task and function, that it is confined or limited to the manner in which the parties to the proceeding define the issues: Benjamin v Repatriation Commission [2001] FCA 1879; 70 ALD 622 at [47]. Nor is it to say that the Tribunal can ignore a consideration Direction 99 makes mandatory which obviously arises from the information before the Tribunal: Uelese v Minister for Immigration and Border Protection [2015] HCA 15; 256 CLR 203 at [61]-[68]. Likewise, the Tribunal cannot ignore an unarticulated ‘reason’ that clearly emerges from the information before the Tribunal: NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; 144 FCR 1 at [55], [58], [60], [68] (Black CJ, French and Selway JJ). Similarly, a failure to respond to ‘a substantial, clearly articulated argument relying upon established facts’ can amount to a constructive failure to exercise jurisdiction (i.e. a failure to perform the ‘review’ in accordance with the Act and Administrative Appeals Tribunal Act 1975 (Cth)): Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 26; 197 ALR 389 at [24]–[32] (Gummow and Callinan JJ), [95] (Hayne J); SZMTA at [13] (Bell, Gageler and Keane JJ), [105] (Nettle and Gordon JJ). Nonetheless, it is important to keep in mind that, although the Tribunal performs an administrative function and the proceedings are not adversarial, it is for the applicant who seeks review of a delegate’s decision to advance ‘another reason’ for revoking the cancellation decision as the correct or preferrable outcome on review.

49    In DWN027 v Republic of Nauru [2018] HCA 20; 355 ALR 238 (at [17], [21]) the High Court (Kiefel CJ, Gageler and Nettle JJ) emphasised that a decision-maker’s obligation to go beyond the case articulated by an applicant is confined to unarticulated claims which are apparent on the face of the material before the decision-maker. The Court noted that ‘the decision of the decision maker must be considered in light of the basis on which the application was put before the decision maker and not upon some entirely different basis that may only occur to the [applicant’s] lawyers at this later stage of the process’. The Court cited, with approval, the following observations of Kirby J in Dranichnikov (footnotes omitted):

78    …The Tribunal acts in a generally inquisitorial way. This does not mean that a party before it can simply present the facts and leave it to the Tribunal to search out, and find, any available basis which theoretically the Act provides for relief. This Court has rejected that approach to the Tribunal’s duties. The function of the Tribunal, as of the delegate, is to respond to the case that the applicant advances. A fortiori this is the function of the Federal Court in determining any application to it for judicial review of a decision of the Tribunal.

50    Further, as the Full Court observed in AXT19 v Minister for Home Affairs [2020] FCAFC 32:

56    Considerable caution needs to be exercised in resolving an argument that a claim has been made in sufficiently clear terms that it should in turn be considered by the Tribunal. The greater the degree of clarity in which a claim has been made and advanced for consideration, the greater may be the need for the Tribunal to consider the claim in clear terms. Conversely, the more obscure and less certain a claim is said to have been made, the less may be the need for the Tribunal to consider the claim. The need for caution arises lest a reviewing Court is propelled from its sole task of undertaking judicial review and into the murky waters of impermissible merits review. The task of a court undertaking judicial review is not to elevate a statement that may have been made in passing by a claimant into a clearly articulated claim in need of resolution. For a Court undertaking judicial review to engage in such a process has all the dangers of the Court resolving a different factual case to the one advanced to the Tribunal and thereby trespassing into merits – and not judicial – review.

51    Specifically regarding the exercise of the discretion under s 501CA(4) of the Act, a Full Court (Katzmann, Jackson and McEvoy JJ) in Jabari v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 98; 298 FCR 431, by reference to ECE21 v Minister for Home Affairs [2023] FCAFC 52; 297 FCR 422, provided the following further explanation of the obligation of the Tribunal in the exercise of its review function under s 500(ba) of the Act to read, identify, understand and evaluate the applicant’s claim in the Tribunal:

51    In ECE21 v Minister for Home Affairs [2023] FCAFC 52 at [7]-[9], a Full Court comprised of Mortimer, Colvin and O'Sullivan JJ emphasised two aspects of the statutory task, having regard to Plaintiff M1/2021. The first is a distinction between considering representations in the sense of averting to and understanding them, and considering them in the sense of evaluating their significance in the course of making the decision. In their Honours' view, a consequence of Plaintiff M1/2021 is that (ECE21 at [7]):

it is for the Minister, acting reasonably and rationally and having demonstrably identified and understood the representations being made, to determine whether a particular matter is of significance. Therefore, a reviewing Court will need to decide if a failure to refer to a particular matter in the Minister's reasons, even a matter that was clearly articulated by the applicant or which clearly arose on the materials, may indicate that the Minister was not persuaded that it was of significance, or whether that failure is evidence that the decision-maker did not identify and understand the representations being made.

52    In other words, provided the decision-maker has averted to and understood the representations the applicant has made, the degree or quality of engagement they provide to a given representation is a matter for them, as long as they act within the bounds of rationality and reasonableness. Their Honours held that, accordingly (ECE21 at [8]):

approaching the matter on the basis that the Court enquires into the degree or quality of consideration in the reasoning is likely to lead to error in the form of the Court usurping the function of the Minister: [Plaintiff M1/2021] at [26]. This, it seems, was the aspect of Full Court decisions of this Court, like [Minister for Home Affairs v Omar [2019] FCAFC 188; (2019) 272 FCR 589], that the High Court disagreed with.

53    The second aspect of the statutory task which their Honours thus emphasised was that the weight to be afforded to any particular representation is a matter for the Minister (or other decision-maker), including forming a view that the representation should be given no weight: ECE21 at [9]. It is necessary, however, for the decision-maker to be aware of and to have understood the representation.

52    In the process of evaluation there is a distinction between a ‘claim’ (case, representation, submission or argument) that is advanced as ‘another reason’ for revoking a cancellation decision and the ‘information’ (evidence or material) in support of that claim. In certain circumstances, it may be a distinction without a difference in that the claim, in substance, may be advanced by way of the information submitted to the Tribunal or the claim may clearly emerge from the submitted information, or the information may obviously go to one of the considerations identified in Direction 99 that the Tribunal must take into account. In that sense, it is not necessary to distinguish between ‘claims’ and ‘information’. The fundamental question is the importance of the ‘information’ to the exercise of the Tribunal’s function and thus the seriousness of any error: Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; 212 FCR 99 at [111]. Identification, understanding and evaluation of information is affected by the centrality of the information with which it is said that the Tribunal has not engaged: Singh v Minister for Home Affairs [2019] FCAFC 3; 267 FCR 200 at [37(1)] (Reeves, O’Callaghan and Thawley JJ). See, also, KXXH v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 111; 292 FCR 15 at [52]-[53]; Jabari at [55(4)].

53    The conceptual difference between ‘claims’ and ‘information’ remains important, however, because the statutory task of the Tribunal is to evaluate the ‘case’ or ‘claim’ the applicant advances and, in so doing, it is not necessary that the Tribunal mention every particular item of information that has been considered or evaluated in the performance of the overall task of evaluation of the claim: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; 236 FCR 593 at [46]; ETA067 v The Republic of Nauru [2018] HCA 46; 92 ALJR 1003 at [13] (Bell, Keane and Gordon JJ). Moreover, the fact that the Tribunal has not mentioned a particular item of information does not necessarily mean that the information has not been read, and its significance identified, understood and evaluated. Section 43(2B) of the AAT Act required the Tribunal to include in any written reasons its findings on material questions of fact. That means the Court may infer that any information not mentioned in the Tribunal’s reasons was not considered material: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 at [69]. But, the Court need not draw that inference. The information may be so obviously relevant and material that a failure to mention it compels the Court to infer that it was not read, identified, understood or evaluated: SZTMD v Minister for Immigration and Border Protection [2015] FCA 150; 150 ALD 34 at [19]. Nonetheless, the Court should not too readily draw that inference where the reasons are otherwise comprehensive and the information or issue has been identified at some point: Applicant WAEE at [47]. See, also, KXXH at [54]; Jabari at [55(5)].

54    It has been said that what is required is the reality of consideration by the decision-maker. The Court on judicial review is required to assess, in a qualitative way, whether the decision-maker has had regard to the information as a matter of substance: Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216; 267 FCR 643 at [45] (Rares and Robertson JJ). The applicant has the onus of establishing on the balance of probabilities that the decision-maker has failed to evaluate the information. In this respect, the reasons of the Tribunal must be read fairly and not in an unduly critical manner: Savaiinaea v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 56 at [73] (Collier, Perry and Anastassiou JJ). See, also, Jabari at [55(2)]-[55(3)].

55    In Minister for Immigration, Citizenship and Multicultural Affairs v McQueen [2024] HCA 11 (at [45]-[46]) in their joint reasons Jagot and Beech-Jones JJ characterised the task of considering the representations in the following manner:

45    … the question of a failure to consider is not to be equated to a mere failure to consider a matter in or the form of the representations. The question whether there has been a failure to consider a matter in or the form of the representations is relevant only if it means that the decision-maker failed to consider the representations. Whether a decision-maker has failed to consider the representations is a question to be answered objectively by reference to the whole of the representations and the whole of the material in fact considered by the decision-maker in the context of the decision required to be made. For a failure to consider a matter in or the form of the representations to constitute a failure to consider the representations, the matter or the relevant aspect of their form must be of such objective importance to the decision to be made (in this case, the decision whether there is another reason to revoke the cancellation decision) that it can reasonably be said that there has been a failure to consider the representations themselves. As Brennan J said in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [(1986) 162 CLR 24 at 61]:

"A decision-maker who is bound to have regard to a particular matter is not bound to bring to mind all the minutiae within [the decision-maker's] knowledge relating to the matter. The facts to be brought to mind are the salient facts which give shape and substance to the matter: the facts of such importance that, if they are not considered, it could not be said that the matter has been properly considered."

46    Whether the legal consequence that the decision-maker has failed to consider representations will follow from the decision-maker examining other material summarising or referring to the representations will depend on both "the nature, form and content of the representations" and "the length, clarity and degree of relevance of the representations", as well as the material in fact relied on by the decision-maker, evaluated within the statutory context of the decision to be made and the "bounds of rationality and reasonableness" [Plaintiff M1/2021 at 599 [25]].

Was there a failure to identify and evaluate a clearly articulated argument about the specific effect of removal on the applicant’s eldest son?

56    It is convenient to start with a consideration of whether the applicant made the asserted substantial clearly articulated argument which it is alleged that the Tribunal failed to identify or evaluate.

57    An argument was not made in the applicant’s SFIC or oral submissions to the effect that the eldest son’s ADHD was at risk of deteriorating if the applicant were removed from Australia. The argument made in the applicant’s SFIC was to the effect that the ‘impact of a decision not to revoke the Original Decision … will have devasting consequences for [the applicant’s eldest son]’ because there is no possibility that son would accompany him to the UK and it is very unlikely that his son would be able travel to the UK while a minor (SFIC [119]). That argument or submission was supported by the information to which reference was made in other parts of the applicant’s SFIC. That information included quotes from the applicant’s representations made to the Minister (SFIC [116]), from a statement of the eldest son (SFIC [119]) and the applicant’s mother (SFIC [121]).

58    Broadly, the information to which specific reference was made in the applicant’s SFIC was information from which findings of fact could be made about the nature of the relationship between the applicant and his eldest son, the extent to which the applicant was likely to play a positive parental role for that son in the future and the likely effect that separation from the applicant would have on that son taking into account their ability to maintain contact in other ways to which reference is made in paras 8.4(4)a), 8.4(4)b) and 8.4(4)d) of Direction 99. That information corresponds with the applicant’s characterisation of the ‘argument’ in ground 2(i)A(a), 2(i)A(b) and 2(i)B. I accept that the applicant made an ‘argument’ to the effect of those paragraphs. These were all factors that the Tribunal was required to consider under Direction 99 because they were relevant to determination of the best interests of the applicant’s eldest child and, to that extent, may be characterised as integers of the applicant’s argument (or claim) that it was in the best interests of his eldest son that the cancellation decision be revoked. However, there was no argument, claim or information to the effect that it was in the best interests of the applicant’s eldest son that the cancellation decision be revoked because the eldest son’s ADHD had deteriorated as a result of separation from the applicant or that his ADHD was at risk of deterioration if the applicant were removed from Australia.

59    A submission was also made in the applicant’s SFIC that, while technology would allow the applicant to communicate with his sons if he were removed from Australia, it would be no substitute for the physical presence of their father (SFIC [128]). That written submission was augmented by an oral submission before the Tribunal, based on the evidence of the applicant and his mother given at the hearing, to the effect that maintaining contact through technology would be hindered by time differences, the eldest son’s ADHD and the reluctance of the eldest son’s mother to allow the applicant to contact him at her residence. The oral submissions were yet another reason why technology was no substitute for physical contact and that there was particular concern regarding the applicant’s ability to maintain contact with his eldest son by means of technology. Therefore, I accept that the applicant made an ‘argument’ to the effect of the information pleaded in ground 2(i)C of the application.

60    With respect to the contention that the applicant made an argument to the effect that his eldest son’s ADHD would deteriorate if the applicant were removed from Australia, in the delegate’s decision, which was in the information before the Tribunal, the delegate said:

95.    I have had regard to the special needs of [the applicant’s eldest son] who suffers from severe ADHD for which he receives medical treatment. [His] condition affects both his home and school life, and there has been a significant and noticeable deterioration in his condition due to the physical absence of his father, which raises great concerns for [the applicant’s eldest son’s] mental health and his quality of life Attachment J, M, O, and S.

61    The delegate’s conclusion or finding that ‘there has been a significant and noticeable deterioration in [the eldest son’s ADHD] due to the physical absence of his father’ may have been a conclusion or finding that was open on the evidence, but it was not a finding that the Tribunal was bound to make and it was not a finding that the applicant invited the Tribunal to make by any written or oral submission in the Tribunal proceeding. Nor does any of attachments J, M, O and S to the delegate’s decision contain any such argument, submission or invitation. I do not regard the delegate’s reasons as advancing an ‘argument’ on behalf of the applicant even if such a finding was open on the information before the Tribunal. The Tribunal’s function was to respond to the case the applicant presented not to search out, and find, any available basis which theoretically provided a ground for a decision in the applicant’s favour.

62    Regarding the impact of separation more broadly, the applicant’s SFIC made general submissions by reference to ‘a plethora of research’ that demonstrates the detrimental physical, emotional and psychological impact that separation from a parent has on a child (SFIC [126]). In this respect, the applicant’s SFIC made no distinction between the best interests of each son and made no argument that the eldest son would suffer particular or more severe psychological impact because of his ADHD. The ultimate submission made was to the effect that ‘the best interests of the Applicant’s sons can only be served by a decision to revoke the Original Decision’ (SFIC [130]). Here, again, no distinction is drawn between the best interests of the eldest son and those of the youngest son. Each son is treated as having an equal interest in revocation due to separation.

63    The applicant made no argument (or, at least, no clear argument) to the effect that his eldest son’s ADHD had deteriorated from separation during the applicant’s incarceration or was likely to deteriorate if the applicant were removed from Australia. Nor was any argument made to the effect that the eldest son had a particular or greater interest in revocation due to his ADHD. The applicant has not demonstrated that he made an ‘argument’ of the kind asserted in ground 2(i)A(c) of the application.

64    In any event, if and to the extent that the information pleaded in ground 2(i)A(c) may be considered a clear argument, integer or aspect of the applicant’s representations as a whole, it does not follow that it was ‘substantial’ or that failure to bring to mind that specific argument, integer or aspect involves a failure to consider the applicant’s representations (or claim or case) as a whole. The information pleaded in ground 2(i)A(c) was not of such objective importance to the decision to be made (whether there was another reason to revoke the cancellation decision) that it can reasonably be said that a failure to ‘consider’ that specific information resulted in a failure to consider the applicant’s representations (or claim or case) relating to the best interests of his minor children.

65    The Tribunal was not bound to bring to mind all the minutiae but the salient facts which give shape and substance to the matter. As will be explained shortly, the salient facts are identified in the applicant’s submissions recorded in the Tribunal’s reasons and in the Minister’s observations which the Tribunal accepted as ‘well made’. These facts, relevantly, include that ‘the children have struggled emotionally due to the absence from their father and would continue to suffer great emotional and financial hardship if he were removed from Australia’. That relevant salient fact is derived from, amongst other things, the information identified in ground 2(i). Further, irrespective of whether or not there was a clearly articulated ‘argument’ as pleaded in ground 2(i), I am not satisfied that there was a failure to identify and evaluate the information identified in ground 2(i) of the application. Nor am I satisfied that the information was ignored, overlooked or misunderstood.

Was there a failure to evaluate the applicant’s representations?

66    The second limb of ground 1 of the application is founded on the assertion that the effect of the Tribunal’s reasons (T [127]) was that it merely accepted the Minister’s observations (or submissions) (T [126]) and ignored or did not engage with the applicant’s submissions (T [125]). In my view, that is not a fair reading of the Tribunal’s reasons in a context in which the evidence and other information about the best interests of the applicant’s minor children was not disputed or in issue.

67    The Tribunal identified and set out the essential components of the applicant’s case regarding the best interests of his minor children in its reasons (T [125]). While the Tribunal made no direct reference to any of the information upon which the applicant relied in support of the submission, it was not necessary for it to refer to every item of information, every argument or every submission that the applicant had made. The material findings and information were identified and recorded in the two following paragraphs of the Tribunal’s reasons (T [126]-[127]). In those paragraphs the Tribunal recorded the Minister’s observation that there were ‘reports that the children have struggled emotionally due to the absence from their father and would continue to suffer great emotional and financial hardship if removed from Australia’ (T [126]). Amongst others, the Tribunal said that this observation was ‘well made’ as was the Minister’s acceptance that the relevant primary consideration weighed strongly in support of revocation of the cancellation decision (T [127]). These truncated references to the submissions and information were also made in a context in which neither the applicant nor his mother was challenged on their evidence about the best interests of the applicant’s sons at the hearing. Put another way, the applicant’s expressly articulated claim that separation would have a significant detrimental effect on his eldest son (and youngest son) was not in dispute in the proceeding before the Tribunal. Therefore, the Tribunal may not have considered the information and facts upon which its conclusions (T [127]) were founded were material to its reasons for decision.

68    The Minister’s observations to the effect that the children have suffered emotionally and would continue to suffer great emotional hardship, which the Tribunal accepted as well made, reflect the substantive effect of the unchallenged information before the Tribunal pertaining to the applicant’s eldest son (and youngest son). That conclusion can be derived from, amongst other things, the information about the nature of the eldest son’s relationship with the applicant arising from shared experience of ADHD, the eldest son’s deteriorating behaviour, the eldest son’s worsening emotional state arising from his ADHD and separation from his father as well as the potential for further deterioration if that separation became permanent to which reference is made in the applicant’s statement reproduced at SFIC [116] and the other information upon which the applicant relies in support of ground 2(i) of the application.

69    The Tribunal’s statement that the Minister’s observations were well made (T [127]) also conveys an acceptance of the accuracy or correctness of the Minister’s observations. The Minister’s observations (T [126]) were, in turn, observations about the applicant’s claim and (or) the information before the Tribunal regarding the best interests of the applicant’s children. The observations in the Minister’s SFIC [48] which are reproduced in the Tribunal’s reasons (T [126]) are each made by reference to certain paragraphs in the delegate’s record of decision. Those paragraphs, in turn, reference each of the documents containing the information upon which the applicant relies in support of ground 2(i) of the application. And, although not referred to in support of the observations about the emotional impact of separation, the Minister’s SFIC [48.3] (T [126(c)]) refers to the page of the delegate’s decision at which the delegate made the finding or conclusion to the effect that there had been a significant and noticeable deterioration of the eldest son’s ADHD due to the applicant’s physical absence.

70    The effect of the reasons (T [125]-[127]) was that the Tribunal explicitly accepted the Minister’s observations (Minister’s SFIC [48]) and implicitly accepted certain of the applicant’s submissions in his SFIC. It is evident that T [125(a)]-[125(c)] correspond to [117]-[118] of the applicant’s SFIC, T [125(d)] to SFIC [121]-[122], T [125(e)]-[125(f)] to SFIC [123] and T [125(f)]-[125(j)] to SFIC [123]-[129]. But, while there is no direct reference in the Tribunal’s reasons of the applicant’s SFIC [116] (or the applicant’s submission in attachment J to his reasons for revocation) or SFIC [120], for the reason that follows, I do not infer the Tribunal failed to read, identify, understand and evaluate the applicant’s representations as a whole.

71    As to SFIC [120], the applicant did not provide the Tribunal with the documents concerning medication of the applicant’s son for ADHD contemplated by that paragraph. As to SFIC [116], there were places in other parts of the Tribunal’s reasons where the member acknowledged that the applicant had ADHD, his eldest son had been diagnosed with ADHD and there was evidence that both sons would suffer immensely if the applicant were removed from Australia (T [62], [118]). Additionally, as already mentioned, the Minister observed in his SFIC [48.2], which the Tribunal said was ‘well made’ (T [126]), that ‘there are reports that the children have struggled emotionally due to the absence from their father and would continue to suffer great emotional and financial hardship if he were removed from Australia.’ In the context of these matters, the absence of specific references to the submissions in the applicant’s SFIC [116] and [120] is explicable given that the relevant paragraph of the Tribunal’s reasons (T [125]) functions as a summary of the salient aspects of applicant’s submissions as a whole.

72    Having regard to the manner in which the applicant advanced his claim in his SFIC, the information to which he made specific reference in his SFIC, the Minister’s observations and, in effect, the Tribunal’s acceptance of the applicant’s evidence and other information upon which he relied, it is not at all surprising that the Tribunal has not set out in more detail the applicant’s ‘case’ or the Minister’s response and has not provided an extensive explanation or evaluation of the evidence and other information or ‘findings’ about those matters including all the intermediate findings of fact upon which the Tribunal’s ultimate conclusion was based. The Tribunal was only required to set out findings on material questions of fact; that is, findings of fact material to the Tribunal’s reasons. In circumstances in which the evidence was not contested and the ultimate conclusion from that evidence was accepted, for the purpose of explaining its reasoning, it was not necessary for the Tribunal to do more than identify the submissions and (or) effect of the evidence and the material conclusions that it had drawn from the information presented to it.

73    It follows that in the context and circumstances, I do not infer from the brief manner in which the Tribunal addressed the applicant’s submissions and information, the incomplete summary of the applicant’s submissions and the absence of any description or specific or detailed evaluation of the evidence that, there was a failure to evaluate the applicant’s claim (or representations) as a whole. Therefore, I am not satisfied that the Tribunal failed to read, identify, understand and evaluate the applicant’s representations about the best interests of his eldest son.

Was there a failure to give individual consideration to the best interests of the applicant’s sons to the extent their interests may differ?

74    The Tribunal was bound by s 499(2A) to apply Direction 99. Consequently, where the evidence or materials before the Tribunal raised a matter that was made relevant and was required to be taken into account in accordance with Direction 99, the Tribunal was bound to take that matter into account irrespective of whether or not the applicant had specifically made a representation (or submission) about that matter: e.g., Uelese at [61]-[68]. Otherwise, it was common ground that non-compliance with Direction 99 may constitute jurisdictional error: FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 19 at [6] (O’Callaghan and Colvin JJ). A failure to comply with s 499(2A) may be characterised as a breach of a condition governing the exercise of the making of a decision: LPDT at [30]-[31] (Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ).

75    Paragraph 8.4(3) of Direction 99 required the Tribunal to give individual consideration to the best interests of each child to the extent that their interests may differ. I accept that that described an objective test by which the Tribunal was obliged to give individual consideration to the interests of the children where, on the information before the Tribunal, their interests may differ. However, once that threshold was crossed, the extent to which the interests of each child actually differ was a matter for the Tribunal to determine in its evaluation of the individual consideration of each child’s interests. Thus, where the interests of each child may differ, provided the Tribunal gives each child’s best interests individual consideration, it will sufficiently comply with the requirements of Direction 99. How it evaluates that consideration and what conclusions it reaches after that evaluation is a matter for the Tribunal. Put another way, while upon consideration of the evidence and other materials it can be determined objectively that each child’s interests may differ and, consequently the individual interests of each child must be considered, the Tribunal is entitled to conclude on the information before it that the interests of each child do not actually differ or do not differ in any material respect. In this case, that each child had a different mother, was of a different age, had different circumstances, individual needs and reasons that separation from the applicant would be detrimental meant that each child’s interests may differ and, therefore, the Tribunal was required to consider their individual interests.

76    The Tribunal set out para 8.4 of Direction 99 (T [123]). As already mentioned, the Tribunal summarised the applicant’s submissions, drawn from his SFIC, regarding the best interests of his children (T [125]). As with the applicant’s SFIC, the Tribunal’s reasons commence with a consideration of the circumstances and information relating to the applicant’s eldest son; then note that many of the submissions made in relation to the eldest son apply equally to the youngest son; address the circumstances and information relating to the youngest son; and, then, turn to address circumstances and information relating to both sons. The applicant’s SFIC does not contain a submission to the effect that his eldest son had any particular or specific interest that differed from that of his youngest son which meant that the eldest son had a specific and greater interest in revocation of the cancellation decision. The tenor of the submission was that, while separation would affect or impact each child in different ways, it was equally in their best interests that the cancellation decision be revoked. In substance, the Tribunal accepted that submission. Therefore, the Tribunal gave individual consideration to the best interests of each child, but concluded, consistently with the applicant’s submissions, that their best interests were not different, in fact. No error has been demonstrated in that approach and consideration of the information relevant to para 8.4(3) of Direction 99.

77    Paragraph 8.4(4)d) provides that in considering the best interests of the child, where relevant, the likely effect that any separation from the non-citizen would have on the child must be considered taking into account the child’s or non-citizen’s ability to maintain contact in other ways. The Minister submits that the qualifying factor in para 8.4(4)d) (ability to maintain contact in other ways) is a factor that tends to diminish the significance of separation. I accept that submission, but the point of the applicant’s contention is that, where relevant, the effect of separation must be considered taking into account the ability to maintain contact in other ways.

78    Here, the Tribunal plainly considered the effect of separation. Indeed, it was the main factor that weighed in favour of revocation. There is nothing in the Tribunal’s reasons to suggest that it failed to take into account the ability of the applicant and his sons to maintain contact in other ways or that, in so doing, the Tribunal diminished the weight attributed to the effect of separation to any extent by reason that the applicant may be able to maintain contact with them.

79    I accept that the applicant made an oral submission to the Tribunal to the effect that it would be more difficult for the applicant to maintain contact with his eldest son in particular due to the time difference, that son’s ADHD and that son’s mother restricting telephone communication. But, that was a submission that had the effect of negating the relevance of the ability of the applicant to maintain contact with the eldest son (and, in part, the youngest son) in other ways. That was an ‘argument’ or integer of the substantive ‘argument’ or submission the applicant made in his SFIC to the effect that, while technology would allow the applicant to communicate with his sons, it would be no substitution for having a father physically present in their lives. The Tribunal implicitly accepted that submission. Therefore, I accept the Minister’s submissions that this argument was effectively subsumed within the Tribunal’s implied acceptance of the applicant’s submissions that communication via technology would be no substitute for physical presence.

80    The Tribunal manifestly considered the likely effect that separation would have on the applicant’s eldest son, including by taking into account the ability to maintain contact in other ways, as was required by para 8.4(4)d) of Direction 99.

Materiality

81    The conclusions I have reached regarding the asserted errors render it unnecessary to address the parties’ submissions concerning the materiality of any error.

Disposition

82    For the reasons given, the applicant has failed to demonstrate that the Tribunal made any of the jurisdictional errors asserted in the grounds of review.

83    The application must be dismissed with costs.

Associate:

Dated:    12 May 2025