Federal Court of Australia

Tetteh v Assistant Minister for Immigration [2025] FCA 1607

ORDERS

THE COURT ORDERS THAT:

1.    The respondent’s decision made on 12 February 2025 be set aside.

2.    The question whether the cancellation of the applicant’s visa should be revoked pursuant to s 501CA(4) of the Migration Act 1958 (Cth) be redetermined by the respondent according to law.

3.    The respondent pay the applicant’s costs.

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

REASONS FOR JUDGMENT

WIGNEY J:

1    The applicant, Mr Junior David Tetteh, is a citizen of New Zealand who until recently resided in Australia, having moved to Australia when he was 10 years old. In December 2020, however, the visa which permitted him to continue to lawfully reside in Australia was mandatorily cancelled by a delegate of the respondent, the Assistant Minister for Immigration and Multicultural Affairs, pursuant to s 501(3A) of the Migration Act 1958 (Cth). Mr Tetteh requested the Minister to revoke the cancellation of his visa, however, the Minister declined to revoke the cancellation. In this proceeding, Mr Tetteh sought judicial review of the Minister’s reasons pursuant to s 476A(1)(c) of the Migration Act on the basis that it was infected by jurisdictional error.

2    Mr Tetteh’s amended originating application raised two grounds of review. First, Mr Tetteh contended that the Minister’s decision to decline to revoke the visa cancellation was legally unreasonable in his reasons because in the decision, the Minister made inconsistent or irreconcilable factual findings concerning the state of Mr Tetteh’s health. Second, Mr Tetteh contended that the Minister proceeded under the misapprehension that he was bound by a ministerial direction which had been made in respect of the making of decisions concerning the revocation of visa cancellations and had therefore failed to properly exercise his jurisdiction.

3    As will be explained in the reasons that follow, the second of Mr Tetteh’s review grounds has merit. The Minister’s decision not to revoke the cancellation of Mr Tetteh’s visa should be set aside on the basis that he incorrectly considered himself to be constrained by the relevant ministerial direction and therefore failed to properly exercise his jurisdiction.

RELEVANT FACTS AND PROCEDURAL HISTORY

4    Mr Tetteh is a citizen of New Zealand. While he initially resided in New Zealand, he was taken to Tuvalu when he was about six months old where he was raised by his maternal grandparents. He has resided in Australia since November 2011 when he moved here with his family when he was 10 years old. He most recently resided in Australia pursuant to a Class TY Subclass 444 Special Category visa.

The applicant’s visa is mandatorily cancelled

5    On 4 December 2020, Mr Tetteh was convicted in the District Court of New South Wales of various offences, including: common assault; affray; assault occasioning actual bodily harm in company of others (two counts) and reckless wounding in company (three counts). He was sentenced to an aggregate term of imprisonment of four years and four months. It is unnecessary for present purposes to delve into the details of Mr Tetteh’s offending conduct, particularly given the fairly narrow scope of the grounds of review.

6    On 18 December 2020, Mr Tetteh’s visa was mandatorily cancelled by a delegate of the Minister pursuant to s 501(3A) of the Migration Act on the basis that he failed to pass the character test: see ss 501(6)(a) and (7)(c) of the Migration Act. The statutory scheme in relation to visa cancellations will be briefly considered later in these reasons. It suffices at this point to note that there was and is no dispute that Mr Tetteh failed to pass the character test: see s 501CA(4)(b)(i) of the Migration Act.

The Minister decides not to revoke the visa cancellation

7    On 9 January 2021, Mr Tetteh made representations to the Minister in relation to the revocation of the cancellation of his visa: see s 501CA(3) of the Migration Act.

8    On 12 February 2025, the Minister decided not to revoke the cancellation of Mr Tetteh’s visa pursuant to s 501CA(4) of the Migration Act.

9    As has already been adverted to, Mr Tetteh did not contend that he passed the character test. Rather, he contended that there was “another reason” to revoke the cancellation of his visa: see s 501CA(4) of the Migration Act.

10    The Minister provided reasons for his decision not to revoke the cancellation of Mr Tetteh’s visa: Statement of Reasons for Decision (R) under section 501CA(4) of the Migration Act dated 12 February 2025.

11    It is unnecessary to give a detailed account of the Minister’s reasons for deciding that he was not satisfied that there was “another reason” why the decision to cancel Mr Tetteh’s visa should be revoked given the narrow focus of Mr Tetteh’s grounds of challenge to the decision. The key findings made by the Minister included, in short summary that: Mr Tetteh’s criminal conduct “as a whole is very serious” (R [21]); Mr Tetteh’s conduct had “the potential to cause physical and/or psychological injury and/or financial harm” to the Australian community if repeated (R [56]) and that the risk of him reoffending was “low, but not negligible” (R [60]), which weighed against revocation (R [60]); the strength, nature and duration of Mr Tetteh’s ties to Australia weighed “very strongly” in favour of revoking the visa cancellation (R [75]); the best interests of minor children who might be affected by the decision, including Mr Tetteh’s siblings and niece, weighed “moderate to significantly” in support of revocation (R [87]-[88]); the expectations of the Australian community clearly weighed against permitting Mr Tetteh to remain in Australia (R [91]); and the extent of any impediments that Mr Tetteh would face if removed to Tuvalu or New Zealand weighed in favour of the revocation of the cancellation of Mr Tetteh’s visa (R [114]).

12    The Minister weighed up the various considerations which he had identified and considered and concluded that the “seriousness of Mr TETTEH’s offending and the risk that he could further offend if allowed to remain in Australia” outweighed those considerations which weighed in favour of revocation, including the strength and nature of Mr Tetteh’s ties to Australia and the impediments he might face if removed to either Tuvalu or New Zealand (R [122]).

13    There are two aspects of the Minister’s reasons that warrant specific attention having regard to the focus of Mr Tetteh’s review grounds.

14    First, in the section of the Reasons that addressed the impediments that Mr Tetteh may face if removed to Tuvalu or New Zealand, the Minister made two findings that, at least at first blush, appear to be inconsistent.

15    Under the subheading ‘Age and health’, the Minister found (at R [102]) that:

Mr TETTEH is aged 24 and has known health issues including stress, anxiety and depression…

(emphasis added.)

16    Shortly after making that finding, however, under the subheading ‘Social, medical and/or economic support available in New Zealand’, the Minister found (at R [112]) that:

…I acknowledge that Mr TETTEH will have to establish himself with minimal personal supports, however, also note that he is a healthy young man who has good employment history and has demonstrated a drive to educate himself. As such I find that his initial financial and practical hardships will diminish over time as Mr TETTEH engages in employment or training and establishes community ties.

(emphasis added.)

17    More will be said about these findings later in these reasons when considering Mr Tetteh’s first ground of review. It suffices at this point to note that it is the apparent inconsistency between those two findings that forms the main basis for Mr Tetteh’s contention that the Minister’s decision was legally unreasonable.

18    Second, again in that section of the Minister’s reasons dealing with the impediments that Mr Tetteh may face if removed to Tuvalu or New Zealand, the Minister stated (at R [107]):

…I accept that work opportunities, remuneration, government-funded entitlements and other support in Tuvalu may be comparatively lower than in Australia, but the Direction requires consideration of what is generally available to an individual in their country of citizenship, not a comparative assessment with Australia.

(emphasis added.)

19    The Minister’s reference to “the Direction” was an apparent reference to certain written directions given under s 499 of the Migration Act concerning the exercise of, among other things, the power to revoke a visa cancellation. The nature and terms of those directions will be briefly addressed later in these reasons when considering the statutory scheme. The point to note at this stage, however, is that it is common ground that the Minister was not required to follow those directions. It should also perhaps be noted that, earlier in the reasons, when dealing with the best interests of minor children, the Minister had also stated (at R [83]):

As required by the Direction, I have treated the best interests of the [children] as a primary consideration in this context.

(emphasis added.)

20    The Minister’s statements about what the Direction requires, and what the Direction required, provide the basis for Mr Tetteh’s second review ground.

STATUTORY SCHEME IN RESPECT OF VISA CANCELLATIONS

21    It is necessary to briefly address the statutory scheme in relation to visa cancellations and their revocation, though ultimately there was no real dispute between the parties in relation to the terms and operation of that scheme.

22    Section 501(3A) of the Migration Act provides that the Minister must cancel a person’s visa if the Minister is satisfied that the person does not pass the “character test” in certain respects and the person is serving a sentence of imprisonment on a full-time basis. A person will not pass the character test by reason of s 501(6)(a) if they have a “substantial criminal record”, which is defined at s 501(7)(c) as including a term of imprisonment of 12 months or more. As noted earlier, there was, and is, no dispute that Mr Tetteh failed the character test. He had been sentenced to a term of imprisonment of 12 months or greater: see s 501(6)(a) and (7)(c) of the Migration Act.

23    Section 501CA of the Migration Act provides for the revocation of cancellation decisions made pursuant to s 501(3A) of the Migration Act. Relevantly, the Minister may revoke such a cancellation decision if the person whose visa was cancelled makes representations and the Minister is satisfied that the person passes the character test or there is “another reason” why the decision should be revoked: s 501CA(4) of the Migration Act.

24    Section 499(1) of the Act provides that the Minister may give written directions to a person or a body having functions or powers under the Migration Act in respect of the performance of those functions or the exercise of those powers. A person or body must comply with any such directions: s 499(2A) of the Migration Act.

25    At the time of the Minister’s decision in Mr Tetteh’s case, the then Minister had given written directions under s 499(1) of the Migration Act in respect of, among other things, the exercise of the power to revoke visa cancellations under s 501CA. Those directions were creatively entitled: Direction No 110 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under section 501CA dated 7 June 2024.

26    It is unnecessary to give any detailed consideration to the nature and terms of the Direction. The following features of the Direction, should, however, be noted.

27    First, the Direction contains a detailed list and discussion of the relevant considerations that a decision-maker must take into account in deciding, relevantly, whether to revoke a visa cancellation. The “primary” considerations are specified as being: the protection of the Australian community from criminal or other serious conduct; whether the conduct engaged in by the person whose visa had been cancelled constituted family violence; the strength, nature and duration of that person’s ties to Australia; the best interests of minor children in Australia; and the expectations of the Australian community. The “other” considerations are specified as being: the legal consequences of the decision; the extent of impediments if removed and the impact on Australian business interests.

28    Second, the written directions in the Direction are directed to “decision-makers”. That expression is defined as meaning “a delegate of the Minister, or a body (such as the Administrative Appeals Tribunal, or the Administrative Review Tribunal upon its establishment), making a decision under section 501 or 501CA of the Act”. It can readily be seen that the Minister himself (or herself, as the case may be) is not a decision-maker for the purposes of the Direction if the decision is made by the Minister personally, as distinct from by his or her delegate. That has been found to be the case in respect of previous iterations of the Direction: Ngaronoa v Minister for Immigration and Citizenship (2007) 244 ALR 119; [2007] FCAFC 196 at [16]. It follows that the Minister was not bound by the Direction in deciding Mr Tetteh’s case personally. In his submissions in this matter, the Minister conceded that he was not required to follow the Direction.

29    Third, while the Minister is not required to follow the Direction, it is by no means unusual for Ministers who have personally made revocation decisions to provide reasons which closely follow the structure, terms and terminology of the Direction. The same can be said of decisions made by Ministers when earlier iterations of the Direction were in force or operation. As discussed later, there could be no doubt that the Minister’s reasons in Mr Tetteh’s case closely followed the structure, terms and terminology of the Direction.

REVIEW GROUNDS

30    As noted at the outset, Mr Tetteh’s amended application contained two grounds of review.

31    The first review ground was that the Minister’s decision was “vitiated with jurisdictional error in the forms of illogicality and/or legal unreasonableness”. Mr Tetteh contended that it was illogical or legally unreasonable for the Minister, when assessing the impediments he may face if removed by Australia, to find that, on the one hand, he had “known health issues” (R [102]), and, on the other hand, that he was a “healthy young man” (R [112]). In Mr Tetteh’s submission, those two findings were illogical or legally unreasonable because they were inconsistent and irreconcilable. Mr Tetteh’s challenge ultimately focussed on the finding that he was a healthy young man. While Mr Tetteh initially contended that it was not open to the Minister to make that finding, he ultimately appeared to concede that, but for the inconsistency with the finding that he had “known health issues”, the finding was open on the material before the Minister.

32    Mr Tetteh’s second review ground was that the Minister’s decision was “vitiated with jurisdictional error in the forms of misinterpretation of the law and/or constructive failure to exercise his jurisdiction” because the Minister “saw himself as bound by ‘the Direction’ in assessing the impediments that he (Mr Tetteh) may face if removed from Australia”. Mr Tetteh submitted that the fact that the Minister saw himself as being bound by the Direction was clear from his statement (at R [107]) about what the Direction “requires” to be considered in the context of considering impediments. In Mr Tetteh’s submission, the same conclusion could be said to flow from the Minister’s statement (at R [83]) that he had treated the best interests of minor children “[a]s required by the Direction”.

GROUND 1 – WAS THE MINISTER’S DECISION LEGALLY UNREASONABLE

33    In order to address the first review ground, it is necessary to first briefly discuss the applicable principles in respect of legal unreasonableness. There was essentially no dispute between the parties concerning the applicable principles. The issue was the application of those principles to the Minister’s decision in Mr Tetteh’s case.

Legal unreasonableness

34    It is uncontroversial that Parliament is taken to intend that a statutory power will be exercised reasonably by the administrative decision-maker: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [3], [77]-[85], [114]-[124]; Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30 at [80] (Nettle and Gordon JJ).

35    It is, however, critical to understand that the concept of reasonableness, or unreasonableness, in this context, does not provide a vehicle to challenge the merits of the decision, or to challenge a decision merely on the basis that the decision-maker should have given more weight to certain considerations, or gave too much weight to other considerations, or could or even should have made different factual findings. For a reviewing court to conclude that a decision is legally unreasonable, it must be satisfied that either the outcome of the decision, or the process or reasoning by which the decision was arrived at, so departed from the underlying premises of the exercise of statutory power as to amount in effect to an abuse of power, in the sense that the power was exercised outside the limits, or other than for the purposes for which the power was conferred: SZVFW at [80] (Nettle and Gordon JJ); Minister for Immigration, Citizenship and Multicultural Affairs v Lieu (2023) 297 FCR 162; [2023] FCAFC 57 at [81] (Mortimer CJ).

36    The test for legal unreasonableness is “necessarily stringent”: SZVFW at [11] (Kiefel CJ); Lieu at [82] (Mortimer CJ). It involves a conclusion that no sensible decision-maker that appreciated its (or his or her) responsibilities could have made the decision in question, or arrived at the decision via the decision-making process or process of reasoning that was employed: see generally Li at [71] (Hayne, Kiefel and Bell JJ); SZVFW at [69] (Gageler J); Lieu at [82].

37    Illogical or irrational reasoning or fact finding may in some circumstances support a finding that the resulting decision was legally unreasonable: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 at [124]-[132]; see also BZD17 v Minister for Immigration and Border Protection (2018) 263 FCR 292; [2018] FCAFC 94 at [34]. Illogicality or irrationality in that context, however, requires something more than emphatic disagreement with the reasoning or findings: SZMDS at [124], [131]; CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496; [2016] FCAFC 146 at [61]. For an administrative decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact, “extreme” illogicality or irrationality must generally be shown, “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions”: Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317 at [148]; see also SZMDS at [131].

Were the Minister’s findings or reasoning concerning Mr Tetteh’s health illogical?

38    Mr Tetteh did not contend that the ultimate outcome of the Minister’s decision – the non-revocation of the cancellation of his visa – was legally unreasonable. His contention was that the decision was legally unreasonable by virtue of the process or reasoning by which the decision was arrived at. Specifically, Mr Tetteh contended that the Minister’s reasoning concerning his (Mr Tetteh’s) state of health was illogical because the Minister made two findings which were inconsistent and irreconcilable.

39    As has already been observed, the Minister’s findings concerning Mr Tetteh’s state of health appear, at least at first blush, to be somewhat contradictory and difficult to reconcile. On closer analysis, however, and when the two findings are read in context and without “an eye keenly attuned to the perception of error” (cf. Collector of Customs v Pozzolanic Pty Ltd (1993) 43 FCR 280 at 287; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272), the statements are not entirely irreconcilable and cannot be said to give rise to the sort of extreme illogicality or irrationality that might support a conclusion of legal unreasonableness.

40    The Tribunal’s finding (at R [102]) that Mr Tetteh had “known health issues including stress, anxiety and depression” was a general finding concerning Mr Tetteh’s state of health at the time of the Minister’s decision. It was made in the context of the Minister’s consideration of the impediments that Mr Tetteh might face if removed from Australia and returned to Tuvalu or New Zealand. The general finding referred to documents that Mr Tetteh had provided to the Minister (Attachment L to the Minister’s Reasons) which included medical or clinical records from Mr Tetteh’s time in immigration detention. Those documents revealed that Mr Tetteh had sought and received some counselling and support for stress, anxiety and depression that he had experienced in detention. The documents did not go so far as to suggest that those conditions had significantly inhibited Mr Tetteh prior to his being detained, or were likely to persist if Mr Tetteh was released from immigration detention as a consequence of being removed from Australia.

41    The finding (at R [112]), which included the finding that Mr Tetteh was a “healthy young man”, was also made in the context of the Minister’s consideration of the impediments that Mr Tetteh might face if removed from Australia, but more specifically was made in the context of the consideration of the social, medical and economic support that would be available to Mr Tetteh in New Zealand if he was returned there. Mr Tetteh had represented to the Minister, in respect of that issue, that he had no history of education or employment in New Zealand, that he had not resided in New Zealand since he was sixth months old and that he had no known family in New Zealand (see R [111]). The Minister’s findings (at R [112] and [113]) in respect of that issue were as follows:

I find that Mr TETTEH will face emotional, practical and financial hardship upon his return to New Zealand, due to the separation from his family including his father, siblings and extended family in Australia. I acknowledge that Mr TETTEH will have to establish himself with minimal personal supports, however, also note that he is a healthy young man who has a good employment history and has demonstrated a drive to educate himself. As such I find that his initial financial and practical hardships will diminish over time as Mr TETTEH engages in employment or training and establishes community ties.

I find that Mr TETTEH will have access to health services, treatment and welfare services in New Zealand, appropriate with other New Zealand citizens in similar circumstances to assist with his transition and reintegration in New Zealand.

42    Read in context, the finding that Mr Tetteh was a healthy young man was simply a finding that Mr Tetteh’s state of health was such that he had been able to educate himself, find employment and support himself in Australia in the past, and that he was also likely to be able to do so in the future if removed to New Zealand. The Minister reasoned that he was therefore unlikely to suffer significant impediments if removed to New Zealand. It is tolerably clear that, in arriving at those findings, the Minister had regard to his earlier finding concerning Mr Tetteh’s mental health. That is apparent from the finding (at R [133]) that Mr Tetteh would be able to access appropriate health and welfare service in New Zealand to assist his transition and reintegration. That finding effectively acknowledged that Mr Tetteh might need to access health or welfare services to deal with any mental health issues he may encounter in New Zealand if returned there. Considered in that context, the Minister’s finding that Mr Tetteh was a “healthy young man” was and is reconcilable with the earlier finding that he had experienced some mental health issues while in immigration detention in Australia.

43    In any event, even if it could be said that there was some degree of inconsistency between the two findings, or they are to some extent difficult to reconcile, it does not follow that the Minister’s findings in respect of Mr Tetteh’s health were illogical or irrational such as to support a conclusion that the ultimate decision not to revoke the cancellation of Mr Tetteh’s visa was legally unreasonable in the requisite sense. As noted earlier, the test for legal unreasonableness is stringent and extreme illogicality or irrationality must generally be shown. To the extent that it could be said that the two findings were inconsistent or difficult to reconcile, it is difficult to accept that any such inconsistency or irreconcilability constituted the sort of extreme illogicality which is necessary to support conclusion of legal unreasonableness.

44    As noted earlier, Mr Tetteh’s challenge ultimately focussed on the Minister’s finding (at R [112]) that he was a “healthy young man”. It was that finding that was said to be illogical because it was inconsistent with the earlier finding concerning Mr Tetteh’s mental health. As has already been explained, however, the finding that Mr Tetteh was a healthy young man must be read in context and not in isolation. When read fairly and in context, it is readily apparent that the Minister was not suggesting that Mr Tetteh had no health issues, or had never had any health issues, including mental health issues. Rather, he was simply observing that Mr Tetteh’s state of health was such that he was unlikely to encounter significant impediments or hardship if he returned to New Zealand. That finding was open to the Minister on the material that was before him. Mr Tetteh did not appear to contend otherwise, or at least did not demonstrate that the finding was not open on the evidence. It is difficult to see, in those circumstances, how it could be concluded that the finding was illogical or irrational even if it could be seen to be inconsistent to some extent with the Minister’s earlier finding that Mr Tetteh had “known [mental] health issues”.

45    It may be accepted that the Minister could, and perhaps should, have expressed his findings concerning Mr Tetteh’s health (including mental health) in clearer and more nuanced terms. That would have avoided the perception or appearance of conflict between the respective findings. Mere unfortunate or unhappy phraseology, however, does not provide a basis for a finding of illogicality or legal unreasonableness. Even if it could be said that there is some degree of inconsistency between the two findings concerning Mr Tetteh’s health, that inconsistency falls well short of the sort of extreme illogicality that might satisfy the stringent test of legal unreasonableness.

46    It should perhaps also be noted that Mr Tetteh’s contention concerning legal unreasonableness proceeded on the premise that from a finding that the Minister’s findings or reasoning concerning his (Mr Tetteh’s) state of health was illogical, it would necessarily follow that the Minister’s decision not to revoke the cancellation of his visa was necessarily unreasonable. That premise, however, is somewhat questionable. Given that the test for legal unreasonableness is necessarily stringent, and that only extreme illogicality will generally support a conclusion of legal unreasonableness, it must follow that not every finding of illogical fact finding or reasoning on the part of a decision-maker will support a finding that the resulting decision was legally unreasonable. Minor instances of illogicality in respect of relevantly unimportant or inconsequential reasoning or factual findings are unlikely to support a finding of legal unreasonableness. It is, for example, difficult to see how an illogical or rational finding about a fact that had little or no bearing on the ultimate outcome of the decision could give rise to a finding that the decision was legally unreasonable. To conclude otherwise would give rise to the risk that claims of illogicality and legal unreasonableness could readily slide into the impermissible territory of merits review. The issues that may arise in this context may be seen to overlap to some extent with the issues that arise in considering whether an error is material such as to support a conclusion that it is a jurisdictional error: cf LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321; [2024] HCA 12.

47    It is unnecessary to pursue this issue further in this case. That is because it has been found that the Minister’s findings concerning Mr Tetteh’s state of health were not inconsistent or irreconcilable and were therefore not illogical or irrational. It is equally unnecessary to consider the question of materiality in this context because Mr Tetteh has failed to demonstrate any error in the first place.

Conclusion in respect of ground 1

48    Mr Tetteh’s first review ground has not been made out. The Minister’s findings and reasoning concerning Mr Tetteh’s state of health were not illogical or irrational such as to support a finding that the ultimate decision not to revoke the cancellation of his visa was legally unreasonable.

GROUND 2 – DID THE MINISTER CONSIDER HIMSELF BOUND BY THE DIRECTION?

49    As discussed earlier, the Minister was not bound to follow or comply with the Direction. If, in deciding whether to revoke the cancellation of Mr Tetteh’s visa, the Minister considered himself bound to follow the Direction, there could be little doubt that he could be said to have misunderstood or misinterpreted the law, or asked himself the wrong question, and therefore erred in the exercise of his power or discretion. The Minister did not submit otherwise. The critical question is whether, as Mr Tetteh contended, the Minister did proceed on the basis that he was required to follow or apply the Direction.

50    There are clear textual indications in the Minister’s reasons that he considered that he was bound to follow the Direction.

51    First, when addressing the best interests of minor children who might be affected by the revocation of Mr Tetteh’s visa, the Minister stated (at R [83]) that “[a]s required by the Direction, I have treated the best interests of the above minor children as a primary consideration in this context” (emphasis added).

52    Second, when considering the social, medical and economic support that would be available to Mr Tetteh in Tuvalu, in the context of addressing the impediments that Mr Tetteh might face if removed to Tuvalu or New Zealand, the Minister stated (at R [107]) that while he accepted that work opportunities, remuneration, government-funded entitlements and other support in Tuvalu may be comparatively lower than in Australia, “the Direction requires consideration of what is generally available to an individual in their country of citizenship, not a comparative assessment with Australia” (emphasis added). The Minister accordingly confined his consideration of this issue to the services that would be available to other citizens of Tuvalu and disregarded the fact that those services were not comparable to the services available in Australia.

53    There could be little doubt that the Minister’s reference to “the Direction” was a reference to Direction 110. Consistently with what the Minister stated in his Reasons, paragraph 8(4) of the Direction states that the best interests of minor children in Australia is a primary consideration and paragraph 9.2(1)(c) of the Direction states that, in considering the impediments that a non-citizen may face if removed from Australia to their home country, decision makers must take into account “any social, medical and/or economic support available to them in that country”.

54    The Minister submitted that the Minister’s reasons do not state that he was “bound” to follow the Direction, only that he was “required” by the Direction to treat the best interests of minor children in a particular way, or that the Direction “requires” consideration of the availability of services in the country of citizenship, not a comparative assessment of those services. In the Minister’s submission, stating what the Direction requires, or required, is different from stating that the Minister was bound to follow the Direction. That is, with respect, splitting semantic hairs. To say that one is “required” to do something is tantamount to saying that one is “bound” to do that thing. Read in context, the Minister’s statement that “[a]s required by the Direction, I have treated the best interests of the above minor children as a primary consideration in this context” was tantamount to the Minister saying that he had treated the best interests of the minor children as a primary consideration because he was bound to do so by the Direction. Similarly, is it is readily apparent from the Minister’s reasoning (at R [107]), read as a whole, that he did not conduct a comparative assessment of the services available in Tuvalu as opposed to Australia because he was not required, or bound, by the Direction to conduct any such comparative assessment.

55    The Minister also submitted that the references to what the Direction “requires”, or what the Minister was “required” to do by the Direction, were ambiguous because they could equally be read as meaning that the Minister had simply chosen to follow the Direction. That submission cannot be accepted. While it is true that the Minister may choose to follow the Direction, and there are good reasons why he (or she, as the case may be) may choose to do so (cf Misiura v Minister for Immigration & Multicultural Affairs [2001] FCA 133 at [14]), it does not follow that the Minister’s statement that he was “required” by the Direction to treat the best interests of minor children as a primary consideration, or his statement about what the Direction “requires” in the context of considering impediments, were ambiguous. There is nothing ambiguous about those statements. They clearly and unambiguously indicated that the Minister considered that he was bound to follow the Direction.

56    There are also some contextual indications that the Minister considered that he was bound by or required to follow the Direction.

57    First, the Minister’s Reasons closely followed the structure and terminology of the Direction. That would not be a particularly compelling consideration in and of itself, because, as already noted, the Minister might reasonably be expected to, and almost invariably does, follow the Direction. That said, the fact that the Minister’s Reasons follow, and do not in any respect depart from, the terms of the Direction provides some corroboration or support for the inference that otherwise flows from the Minister’s statement that he was “required” by the Direction to treat the best interests of minor children as a primary consideration, and his statement about what the Direction “requires” in the context of considering impediments.

58    Second, the Minister’s Reasons do not state that he was not bound by, or required to follow, the Direction. It is true, as the Minister submitted, that the Direction also do not expressly state that he was bound by the Direction. As noted earlier, however, the Minister’s statements about what the Direction “requires” and what he, the Minister, was required by the Direction to do, are tantamount to a statement that he was bound by the Direction. In those circumstances, if the Minister was simply following the Direction, but understood that he was not bound by it, it might reasonably be expected that he would have said so. Yet he did not. It should also be noted in this context that the Departmental submission to the Minister in respect of Mr Tetteh’s case did not state or advise the Minister that he was not bound by the Direction.

59    The Minister submitted that it should be inferred that the Minister was aware of the definition of “decision-maker” in the Direction and was accordingly aware that he was not a decision-maker and was therefore not bound by the Direction. There is, however, no sound basis for the drawing of any such inference. One might reasonably expect that a Minister responsible for making a revocation decision would be so aware, however given the textual and contextual indications to the contrary in this case, the inference is not available.

60    On balance, Mr Tetteh’s contention that the Minister considered himself bound by the Direction should be accepted. In approaching the revocation decision in that way, the Minister misunderstood or misinterpreted the legal basis or parameters of his decision and asked himself the wrong question.

Materiality

61    Having determined that the Minister erred in considering himself to be bound by the Direction, it is necessary to determine if that error was jurisdictional. Having regard to the nature of the error in this case, that question turns on whether the error was material to the decision that was in fact made, in the sense that “there is a realistic possibility that the decision that was made in fact could have been different if the error had not occurred” (emphasis in original): LPDT at [7]; see also Nathanson v Minister for Home Affairs (2022) 276 CLR 80 at [32], [46], [63]; MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506 at [39]. Other than in cases (unlike this case) where the error in question is of a type that is always material, the question whether an error was material is determined by inferences drawn from the evidence adduced on the application: LPDT at [13]. While the “applicant must satisfy the court that the threshold of materiality is met in order to establish that the error is jurisdictional, meeting that threshold is not demanding or onerous”: LPDT at [14]. That threshold is met in this case.

62    The question in Mr Tetteh’s case is whether the Minister’s misapprehension that he was bound to follow the Direction was material to the decision not to revoke the cancellation of Mr Tetteh’s visa because it bore on the Minister’s consideration of the impediments that Mr Tetteh might face if returned to Tuvalu. As indicated earlier, in approaching that issue the Minister (at R [107]) proceeded on the basis that he was required by the Direction to consider “what is generally available to an individual in their country of citizenship, not a comparative assessment with Australia”. As a result, the Minister confined his consideration to the services available to other citizens of Tuvalu and disregarded the fact that those services were not comparable to the services available in Australia.

63    The Minister submitted that, if it were to be found (as it has) that the Minister proceeded on the basis that he was bound by the Direction, the error was not material. That was said to be because, had that error not been made, no different result could have ensued because the impediments consideration was treated favourably to Mr Tetteh. In the Minister’s submission, had the Minister not proceeded on the basis that he was bound by the Direction “he might still have taken the consideration into account, or he might not have”.

64    The Minister’s submissions concerning materiality have no merit.

65    It is true that ultimately the Minister concluded that the impediments consideration weighed in favour of the revocation of Mr Tetteh’s visa cancellation. That does not preclude a finding that the error in question was material: see, for example, Dunasemant v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 13. That is because it may be inferred that if the Minister had not considered that he was bound by the Direction, he may have taken into account, in considering the impediments likely to be faced by Mr Tetteh, the fact that, as he had otherwise accepted, the “work opportunities, remuneration, government-funded entitlements and other support in Tuvalu may be comparatively lower than in Australia”. If the Minister had taken that fact into account, he could realistically have given greater weight to the impediments consideration and could realistically have reached a different conclusion when weighing all the relevant considerations. This was not a case where the other considerations weighed so strongly against revocation that it could not realistically be said that if the impediments consideration had been given greater weight that could have tipped the balance in favour of revocation. There is, in all the circumstances, no “basis upon which it can be affirmatively concluded that the outcome would inevitably have been the same had the error not been made”: LPDT at [16].

66    It follows that the Minister’s error in considering himself bound by the Direction was a material error and therefore a jurisdictional error.

Conclusion in respect of ground 2

67    In deciding not to revoke the cancellation of Mr Tetteh’s visa, the Minister erred in considering that he was bound by the Direction. That was a material error because there is a realistic possibility that the Minister could have decided to revoke the visa cancellation if that error had not been made. The error was therefore a jurisdictional error which vitiates the Minister’s decision. The decision must accordingly be set aside.

CONCLUSION AND DISPOSITION

68    In deciding not to revoke the cancellation of Mr Tetteh’s visa, the Minister misunderstood or misinterpreted the applicable law and asked himself the wrong question because he proceeded on the basis that he was bound to apply Direction No 110. That was a material error and therefore a jurisdictional error because, had the Minister not proceeded on that basis, the outcome could have been different. The Minister’s decision must accordingly be set aside. The Minister should reconsider Mr Tetteh’s representations concerning the revocation of the cancellation of his visa and make a decision in respect of that issue according to law.

69    There is no reason why the Minister, as the unsuccessful party, should not be ordered to pay Mr Tetteh’s costs of the proceeding.

Associate:

Dated:    17 December 2025