AXT17 v Minister for Immigration
[2019] FCCA 3084
•30 October 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AXT17 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 3084 |
| Catchwords: MIGRATION – Cancellation of Protection visa – misconstruction of regulation 2.41(k) of Migration Regulations 1994 (Cth) – whether Tribunal misconstrued reg 2.41(k) having regard to the findings made upon material advanced by applicant respecting his contribution to the community – Tribunal entitled to form view that matters relied upon were not truly relevant considerations and to give them no weight – no misconstruction of regulation – irrelevant considerations – whether Tribunal took into account circumstance that applicant’s wife may have been pregnant to the applicant at time she was noted as a member of the same family unit when her former husband made application for a Protection visa – matter not taken into account – whether Tribunal failed to notify applicant of matters that would have been the reason or part of the reason to affirm the decision to cancel the visa – applicable principles – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss 36, 65, 101, 109, 424A, 424AA, 474, 476 Migration Regulations 1994 (Cth), reg 2.41 |
| Cases cited: A v Corruption and Crime Commissioner (2013) 306 ALR 491 BZW16 v Minister for Immigration and Border Protection [2019] FCA 395 Craig v South Australia (1995) 184 CLR 163 Hamersley Iron Pty Ltd v James [2015] WASC 10 He v Minister for Immigration and Border Protection (2017) 255 FCR 41 Hossain v Minister for Immigration and Border Protection (2018) 359 ALR 1 Lo v Chief Commissioner of State Revenue (2013) 85 NSWLR 86 Malek Fahd Islamic School Limited v Minister for Education and Training (No 2) [2017] FCA 1377 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Minister for Immigration and Border Protection v CPA16 [2019] FCAFC 4 Minister for Immigration and Border Protection v SZMTA [2019] HCA 3 Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248 Minister for Immigration and Multicultural Affairs v Yusuf (2003) 206 CLR 323 Nguyen v Minister for Home Affairs [2019] FCA 892 Nguyen v Minister for Immigration and Border Protection [2018] FCA 1374 Nguyen v Minister for Immigration and Border Protection [2019] FCA 159 Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 92 ALJR 481 Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 124 ALR 265 Robinson v Fielding [2015] WASC 108 SAAP v Minister for Immigration and Multicultural and Indigenous Affairs(2005) 228 CLR 294 Sun v Minister for Immigration and Border Protection [2017] FCA 1270 SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190 Williams v IS Industry Fund Pty Ltd [2018] FCAFC 219 |
| Applicant: | AXT17 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 443 of 2017 |
| Judgment of: | Judge A Kelly |
| Hearing date: | 18 October 2019 |
| Date of Last Submission: | 18 October 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 30 October 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr M. Guo |
| Solicitors for the Applicant: | WLW Migration Lawyers |
| Counsel for the Respondents: | Mr A.F Solomon-Bridge |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The name of the first respondent be amended in the title of the proceeding to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
The amended application dated 30 September 2019 be dismissed.
The applicant pay the costs of the first respondent fixed at $7,467.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 443 of 2017
| AXT17 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(As corrected)
Introduction
By amended application dated 30 September 2019, the applicant seeks judicial review of a decision of the Administrative Appeal Tribunal (Tribunal) made on 6 February 2017 affirming a decision of a delegate of the first respondent (Minister) to cancel his Protection visa pursuant to s 65 of the Migration Act 1958 (Act).
For the reasons which follow, the application should be dismissed. In short, I have concluded that the Tribunal did not err in its construction of the applicable provision of the Migration Regulations 1994 (Cth) (Regulations) when deciding whether to cancel the applicant’s visa. Nor did it take into account an irrelevant consideration in reaching its decision. Finally, the Tribunal did not fail to comply with ss 424A or 424AA in relation to an alleged failure to put to the applicant what was said to be ‘information’ respecting the supposed infidelity of his wife.
Background
The applicant is a male Iranian citizen of Faili Kurd ethnicity aged 39 years who first came to Australia in 2010 as irregular maritime arrival.
On 28 November 2010, the applicant applied for a Refugee Status Assessment (Assessment), claiming to fear harm if he returned to Iran because he was a stateless Faili Kurd.
On 24 January 2011, the applicant requested an Independent Merits Review of an Assessment made on 6 January 2011 by a delegate of the Minister who found that the applicant was not a person to whom Australia owed protection obligations. In the event, on 25 August 2011, the Reviewer found that the applicant met the criterion for a Protection visa as set out in s 36(2) of the Act, recommending that he be recognised as a person to whom Australia has protection obligations by reason of his membership of the particular social group ‘stateless Faili Kurds of Iraqi origin in Iran’. On 20 September 2011, the applicant was granted a Protection (Class XA) visa.
However, by letter dated 11 February 2016, the Department provided the applicant with notification of its intention to cancel his visa. The letter stated that the applicant had not complied with s 101 of the Act because he had provided incorrect information in his Protection visa application. The detailed propositions put to the applicant by that letter suggested that, contrary to his statutory declaration, his father was an Iranian citizen and as a result, so was he. The fact of his Iranian citizenship appears to have been unearthed as a result of the applicant having lodged a claim with police that he had lost his Iranian passport. As a result of further investigations, it also appeared that, contrary to s 101(b) of the Act, the applicant had not completed his visa application in a way that no incorrect information was given.
On 14 March 2016, an International Treaties Obligation Assessment (ITOA) was requested in relation to the applicant. On 5 May 2016, the applicant was provided with an opportunity to comment on information considered by the ITOA Assessor. On 18 May 2016, the applicant furnished written submissions and various supporting documents. The Assessor was not satisfied that the applicant faced a real chance of significant harm if he was to return to Iran, and that therefore Australia did not owe him non-refoulement obligations. This assessment was confirmed by a director of the Assessor on 26 May 2016.
On 21 October 2016, a delegate of the Minister cancelled the applicant’s Protection visa, finding that the applicant had provided incorrect information to the Department and had concealed information regarding his identity and Iranian citizenship. The delegate concluded that the applicant was not a person in respect of whom Australia owed protection obligations, either as a refugee under par 36(2)(a) or by way of complementary protection under par 36(2)(aa) of the Act.
Tribunal’s decision and application for review
On 27 October 2016, the applicant applied to the Tribunal for a review of the delegate’s decision.
On 4 January 2017, the applicant was invited to appear before the Tribunal on 2 February 2017 to give evidence and present arguments relating to the issues arising on the decision under review. The applicant attended the hearing with the assistance of a Persian interpreter, his migration agent and his wife. On 2 February 2017, the Tribunal affirmed the delegate’s decision to cancel the applicant’s Protection visa and provided written reasons for doing so (Reasons).
On 6 March 2017, the applicant filed an application for judicial review of the Tribunal’s decision together with an affidavit affirmed by the applicant to which he exhibited copies of the Reasons and the delegate’s decision record.
By a Response filed on 28 March 2017, the Minister opposed the application on the stated basis that the Tribunal’s decision was not affected by jurisdictional error.
Consideration
On 30 September 2019, an amended application was filed by which the applicant abandoned the original ground of review and advanced three new grounds of review.
If the Tribunal’s decision was a privative clause decision[1], it is not amenable to judicial review. A Tribunal decision respecting the merits review of a visa application is not amenable to judicial review unless it is shown to be vitiated by jurisdictional error.[2] In the absence of jurisdictional error, the court has no jurisdiction to grant relief in respect of the Tribunal’s decision.[3] Whether it should do so is a separate issue.
[1] Act, s 474(2).
[2]Act, s 474(1)(c), 476(2)(b); Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476, [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ.
[3] Act, s 476(2).
The process of judicial review is not an appellate procedure enabling a general review of the decision or the substitution of a decision which the court may consider ought to have been made. The jurisdiction, being supervisory, is to quash a decision on established grounds, the most important of which is jurisdictional error,[4] and, where appropriate, to order that the matter be remitted and reconsidered according to law.
[4]Craig v South Australia (1995) 184 CLR 163, 175 (Brennan, Deane, Toohey, Gaudron and McHugh JJ).
Ground 1 – error in construction of reg 2.41(k)
So far as is material, Ground 1 of the amended application reads:
The Tribunal erred in its construction of reg 2.41(k) of the Migration Regulations 1994 (Cth).
tribunal failed to consider a mandatory consideration.Particulars . . .Particulars
(a)Regulation 2.41(k) of the Migration Regulations 1994 (Cth) required the Tribunal to take into account ‘any contribution’ made by the Applicant to the community.
(b)The Applicant’s contributions include those set out at paragraphs 41 and 42 of the Tribunal’s reasons.
(c)At paragraph 83 of its reasons, the Tribunal excluded all consideration of those contributions by reasoning that they ‘cannot be described as relevant’.
It was common ground that by par 109(1)(c) of the Act, together with reg 2.41(k) of the Regulations, the Tribunal was required to take into account ‘any contribution made by the holder to the community’.
Section 109(1), which confers power to cancel a visa, reads:
The Minister, after:
(a)deciding under section 108 that there was non-compliance by the holder of a visa; and
(b)considering any response to the notice about the non-compliance given in a way required by paragraph 107(1)(b); and
(c) having regard to any prescribed circumstances;
may cancel the visa.
Only par 109(1)(c) was in issue.
Relevantly, reg 2.41 prescribes the following circumstances:
For the purposes of paragraph 109(1)(c) of the Act, the following circumstances are prescribed:
(a) – (j). . .
(k)any contribution made by the holder to the community.
Ground 1 of the amended application brought into focus the manner in which the Tribunal had dealt with the applicant’s reliance on his contribution to the community. As appears below, the Tribunal attached no weight to the matters so relied upon: [84].
The Tribunal reasoned relevantly as follows:
[42] When asked what contributions he had made to the community, he said that he had studied in Australia and paid taxes.
[43] He also showed the Tribunal the Banyule Council’s 2012 “Quality of Care Report” (a copy had already been provided) which contained a short article mentioning the family. There was also a photo of the visa holder on the cover of the Banyule Community Health Strategic Plan 2012-2015.
. . .
[83] The Tribunal finds that the applicant’s work and study in Australia and the short article about him (and his family) in a newsletter cannot be described as relevant contributions to the community.
[84] The Tribunal gives no weight to this factor.
It should be noted that the matters referred to at [42]-[43] of the Reasons were volunteered largely in response to a question from the Tribunal. That is to say, apart from the provision of a Strategic Plan (below), the applicant had not earlier sought to rely upon his work, study or taxes as being matters that were of great importance to his application.
The Quality of Care Report relied upon by the applicant and referred to in the Reasons was a Strategic Plan for 2012 – 2015 issued by Banyule Community Health Centre that included the following:
Supporting Refugees
Somayeh and (AXT17’s) story
Somayeh and (AXT17) arrived independently of each other in Australia in 2010, seeking asylum from Iran. They met in Darwin and married in a religious ceremony in Melbourne. This year they finally settled in Heidelberg. This is what they had to say:
BCH helped us in many ways. We were able to access the dental service, English classes with Olympic Adult education, the legal service in the community midwife. She provided us with information on childbirth and visited us at home. At the beginning of our pregnancy we were very worried, but we relaxed when we met our midwife. We had peace of mind and felt very comfortable.
Our first baby, Ana was born at the Mercy Hospital for Women in June this year. The community midwife is now able to take on the role of maternal and child health nurse and continues to see us with the same interpreter. We like to see the same person. We developed a relationship during our pregnancy and we feel there is trust and friendship. We feel comfortable and happy and have peace of mind because of this continuity.
The Tribunal arranged its Reasons in an orthodox manner and addressed its consideration of the matter in the following order: application for review: [1]-[5]; consideration of claims and evidence: [6]-[8]; compliance with s 107 notice: [9]-[50]; non-compliance with s 101: [51]-[53]; whether the visa should be cancelled: [54]-[92].
As to the final topic, the Tribunal set out the essential elements of reg 2.41 and its Reasons specifically identified the need to consider any contribution made by the holder of a visa to the community: [55].
As raised in the course of submissions, the applicant’s written and oral submissions did not turn upon any detailed consideration of the text of the regulation or the context in which it was to be construed. Instead, while the applicant framed Ground 1 as involving an error in the construction of reg 2.41.(k), the submissions advanced in support of it were that, having regard to the content of its Reasons, the Tribunal must be taken to have misconstrued the requirement in par 109(1)(c) to have regard to any prescribed circumstance. The foundation for that submission was that because the Tribunal had concluded that none of the matters that were relied upon by the applicant could “be described as relevant contributions to the community” it cannot have given any consideration to the matters that were relied upon by the applicant.
In short, the applicant relied upon the literal requirement in reg 2.41(k) that the Tribunal must have regard to any contribution and that the conclusion expressed in the Reasons at [83] that the matters being relied upon could not “be described as relevant contributions to the community” disclosed error in that, nothing in the text, context or purpose of reg 2.41(k) indicated that such kinds of contributions did not fall within the terms of that regulation.
The applicant made a threshold attack upon the Minister’s submissions. It was submitted that because the Minister had addressed the manner in which the Tribunal had dealt with each of the four issues upon which the applicant had relied (i.e. his work, study, payment of taxes and the Community Health Strategic Plan), there had been a failure to engage with his submission which was grounded upon a misconstruction of the regulation. It was submitted that the Minister had erroneously sought to pursue Ground 1 on the merits when the substantive complaint being made was an erroneous construction of the regulation. I disagree.
I accept the submission that it was inevitable, having regard to the manner in which the applicant had framed Ground 1, that the Minister would need to address Ground 1 by confronting directly each of the matters that were addressed in the Reasons at [42], [43], [83] and [84]. The substantive basis for Ground 1 was that the Tribunal had ignored the matters being relied upon by the applicant for the purposes of reg 2.41(k) when, as the submission went, it was obliged in imperative terms to do so. Seen from that perspective it was entirely reasonable for the Minister to demonstrate that the Tribunal had not ignored those matters. It would have been remarkable if the Minister had not addressed each of them.
Contextually, it will be recalled that the information upon which reliance was placed for the purposes of reg 2.41(k) had largely been volunteered in response to an enquiry which the Tribunal had made at the hearing. Contrary to the applicant’s submissions, the Tribunal did not ignore the matters relied upon by the applicant. In particular, as to:
a)Working and Studying: The Tribunal correctly recognised that the applicant relied upon each of them: [42], [83]. The applicant appears to have supplied minimal information in relation to either of those matters. In this context, in Minister for Immigration and Citizenship v Khadgi,[5] a Full Court considered the applicant’s evidence that she held current employment and intended to make a contribution by her future employment to be irrelevant;
b)Taxes: Again, the Tribunal recognised that the applicant relied upon this matter. Yet there was a paucity of information given beyond the applicant’s general assertion that he had paid tax. This evidence was only supplied in response to an inquiry by the Tribunal: [42]. Despite the invitation to supply evidence, no suggestion was made that the applicant had particularised in any way his gross salary, or provided any proof or estimate of the tax which had been remitted.[6] While the parties were in debate whether the evidence supported a conclusion that the applicant had, overall, been a beneficiary of government services,[7] it was for the applicant to make out a case that he had made a contribution to the community. I accept the Minister’s submission that an unparticularised assertion that tax had been paid was not evidence per se of a net contribution to the community and that the Tribunal was entitled to attach no weight to this consideration;
c)Banyule Strategic Plan: I also accept that that part of the Strategic Plan which was relied upon did not show how the applicant had made a relevant contribution to the community, and that, to the contrary, it disclosed how the applicant had been helped by the City of Banyule, including by having access to dental services, English classes, a legal service, and a community midwife.[8]
[5] (2010) 190 FCR 248, [120]-[122] (Stone, Foster and Nicholas JJ).
[6] cf. Khadgi, (2010) 190 FCR 248, [125].
[7]i.e. by some demonstration of the net gain to the community of total amount of taxes paid less total value of Commonwealth or other benefits that had been received.
[8]I disregard the Minister’s submission that when publishing its Strategic Plan, the Council at that point was apparently applying the same incorrect information as to the applicant’s circumstances of his leaving Iran.
I do not accept that the Minister had not met the constructional argument as to reg 2.41. The Minister expressly accepted that the Tribunal was obliged to consider the matters in reg 2.41 as mandatory relevant considerations, citing the seminal authority on this regulation: Khadgi.[9]
[9] (2010) 190 FCR 248, [59], [62].
The weight to be applied to particular factors in reg 2.41 is a fact intensive consideration having regard to the manner in which the particular applicant has framed his or her case. In Khadgi, the Full Court stated in relation to the treatment to be applied to the 11 criteria prescribed by reg 2.41 for the purposes of s 109 that:[10]
It is hard to see why a decision-maker should be required to treat each and every one of them as fundamental for the purposes of s 109. Although the Minister must have regard to each and every one of the prescribed circumstances, not all of them will be central or fundamental to every case in which the Minister is called upon to make a decision under s 109(1) of the Act.
[10] (2010) 190 FCR 248, [62].
The same reasoning was applied in Sun v Minister for Immigration and Border Protection,[11] by Reeves J (albeit in relation to the scope of the obligation respecting the distinct considerations applying to a Partner visa). His Honour held that the imperative requirement in the subject regulation to consider ‘all’ matters did not require the Tribunal to identify each and every circumstance but required it to identify:
. . . those circumstances that are germane to its task of determining whether the relationship in question is a married relationship, as defined in s 5F(2) of the Act. In other words, as was held in Khadgi, it requires the Tribunal to identify those circumstances of the married relationship raised by the application at hand that are of “central or fundamental importance” so that those circumstances can receive close attention. . . as the Court said in Khadgi, while the Tribunal will be required to turn its mind to each and every one of the matters prescribed in that list, it is not required to treat all of those matters as being of central or fundamental importance in every matter before it.
[11] [2017] FCA 1270, [41]-[42].
Further, in He v Minister for Immigration and Border Protection, the Full Court did not accept that the Tribunal was required to make a finding as to the existence or otherwise of every potentially relevant circumstance, but only required the Tribunal to make any necessary findings of fact.[12] The reasoning in He was generally approved by a Full Court in Williams v IS Industry Fund Pty Ltd,[13] and followed in Nguyen v Minister for Immigration and Border Protection.[14]
[12](2017) 255 FCR 41, [71] (emphasis in original).
[13] [2018] FCAFC 219, [23]-[28] (Allsop CJ, Reeves and Derrington JJ).
[14][2018] FCA 1374, [47] (White J); see also Nguyen v Minister for Home Affairs [2019] FCA 892, [6] (Colvin J).
It is settled that it is “incumbent on a visa holder who is engaged in the visa cancellation process envisaged by s 109 to articulate facts, matters and circumstances to which he or she suggests the Minister should have regard as required by reg 2.41” and that while the criteria prescribed by reg 2.41 “direct the Minister’s attention to particular factors at a general level . . . it is for the visa holder to shape and mould the Minister’s consideration of those criteria by reference to his or her individual circumstances.” Accepting that the Minister must have regard to material, information and documentation which properly falls “within the purview of the reg 2.41 criteria, irrespective of their source, it will largely fall to the visa holder to flesh out that material in order to enable the Minister’s discretion to be properly exercised.”[15] Accordingly:
If the visa holder does not address those criteria with evidentiary material and submissions, it is not likely that there will be much material (if any) before the Minister for him or her to consider and evaluate. In that event, it is not likely that there will be much for him or her to say about those criteria. [16]
[15] Khadgi (2010) 190 FCR 248, [83].
[16] Khadgi (2010) 190 FCR 248, [83].
Those principles may be seen as a more recent exposition of the principles stated by Black CJ in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs,[17] that the extent of an administrative decision-maker’s task is largely determined by the case sought to be made out by the applicant. Applied here, where material advanced by an applicant lacked detail and thus cogency, the question of fact whether the applicant had identified any relevant contribution to the community fell to be decided on that basis.[18]
[17] (1994) 124 ALR 265, 270, (Beaumont and Whitlam JJ agreeing at 279, 280).
[18] Ibid.
In Khadgi, when allowing the appeal, the Full Court held[19] that the scope of the Tribunal’s obligation under reg 2.41(k) had been overstated in terms which impermissibly imposed on it a requirement to explain the weight that had been accorded to particular contributions as a factor.
[19] (2010) 190 FCR 248, [123].
It may be accepted that where a factor is of great importance to a particular case, the failure to give any weight to that factor may support an inference that the decision-maker did not have regard to that matter at all.[20] However, in general, it is a matter for the Tribunal, not the court, to determine the appropriate weight to be given to the matters which were to be taken into account in exercising the discretionary power whether or not to cancel a visa.[21] As noted above, I do not consider that the matters identified in the Reasons at [42] or [43] or as otherwise addressed by the applicant’s submissions support a conclusion that his contribution to the community was being relied upon as a factor of particular significance to the present application. This is not a case in which the Tribunal had no regard to the factors being relied upon by the applicant. To the contrary, the Tribunal inquired as to them, identified them, considered them to be irrelevant and attached no weight to them. The manner in which the Tribunal dealt with those matters may be distinguished from a case in which the court is being asked to infer that such matters were completely disregarded. The Minister thus correctly submitted that the weight to be given to the factors in reg 2.41(a)-(k) and the primacy which those factors might assume in any particular case was a matter entirely for the Tribunal.[22]
[20]Khadgi, (2010) 190 FCR 248, [58] citing Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 41 (Mason J).
[21] Ibid.
[22] Khadgi, (2010) 190 FCR 248, [68].
Having regard to the principles considered above, I do not accept that the Tribunal erred by misconstruing reg 2.41(k). The Tribunal correctly identified the matters upon which the applicant relied. It determined that they could not be described as relevant contributions: [83]. Having arrived at that conclusion, the Tribunal was entitled to give no weight to this factor: [84]. Reading the Reasons fairly and as a whole, this was a view that was open to be taken by it.
Further, the Tribunal correctly appreciated that the factors in reg 2.41 did not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: [56]. In doing so, the Reasons confirm that the Tribunal had regard to both the principles in Khadgi and to the content of the PAM3 policy guidelines respecting the cancellation of visas.
The applicant further submitted that the error in failing to consider the factors advanced in support of the reg 2.41(k) factor was material, and on this basis it was submitted that where the breach had a material effect on the Tribunal’s decision, this would lead to jurisdictional error.[23] As I have already held, I do not consider the Tribunal erred in the manner suggested. However, I note the applicant’s submission that having regard to its other findings,[24] on the balance of probabilities there could have realistically been a different decision.[25]
[23] Minister for Immigration and Border Protection v SZMTA [2019] HCA 3, [44] (Bell, Gageler
and Keane JJ).
[24]The applicant submitted that there were other matters which the Tribunal found weighed in his favour, relying upon the matters at, eg, [76], [78], [81], [90].
[25] Minister for Immigration and Border Protection v CPA16 [2019] FCAFC 40, [38].
In this regard, the applicant relied upon the statement of Nettle J in Hossain v Minister for Immigration and Border Protection as follows:
. . . there may be a number of circumstances in which an error is jurisdictional despite not depriving a party of the possibility of a successful outcome. . . . Another such circumstance is where a decision maker is required to make a decision by reference to a single specified criterion and, in error, addresses himself or herself to the wrong criterion. In such a case, the decision maker's error will be a jurisdictional error – a failure to exercise the jurisdiction of deciding the question according to the applicable criterion – regardless of whether one can say that, if properly directed and having determined the application by reference to the correct criterion, the decision maker would have been bound to make the same decision.[26]
[26](2018) 359 ALR 1, [40]; citing, e.g., Kabir v Minister for Immigration and Citizenship (2010) 118 ALD 513.
From this statement, the applicant suggested that where the Act required a decision to be made upon a ‘single specified criterion’ and the decision-maker had erroneously addressed another wrong criterion, the error would be jurisdictional irrespective of materiality. While the applicant’s counsel quite properly accepted that the reference to a ‘single specified criterion’ should be taken as a reference to, for example, the criterion of whether a person was a refugee,[27] I do not consider that an error in the construction or application of reg 2.41(k) – one of eleven criteria in reg 2.41 – must, without more, constitute jurisdictional error.
[27] Act, s 36(2)(a).
Ground 1 is rejected.
Ground 2 – irrelevant consideration?
Ground 2 of the amended application reads:
The Tribunal took into account the irrelevant consideration of the imputed infidelity of a person other than the Applicant.
Particulars
At paragraph 38 of its decision, the Tribunal considered the imputed infidelity of a person other than the Applicant was ‘significant’. That factor is irrelevant to the question of whether to exercise the discretion to cancel the Applicant’s visa.
An administrative decision may be vitiated by legal error where a decision-maker fails to take into account a mandatory relevant consideration or takes into account a consideration that is mandated as being irrelevant.[28] Whether a matter is properly characterised as a mandatory relevant consideration is to be determined by reference to the subject matter, scope and purpose of the relevant legislation.
[28]Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 39 (Mason J).
In Lo v Chief Commissioner of State Revenue,[29] the NSW Court of Appeal had occasion to consider the nature of a challenge based upon a failure to take into account relevant considerations and the taking into account of those which were irrelevant. The court was agreed that ‘something more’ may be required to demonstrate error of law in such cases. Basten JA, (with whom Beazley P agreed) said:[30]
The ‘something more’ requires reference to the dual concepts of “relevant considerations” and “taking into account”. The term “relevant considerations” is widely misunderstood: as used in leading authorities, such as Minister for Aboriginal Affairs v Peko-Wallsend Ltd[31] it refers to a matter which the decision-maker is bound to take into account. The obligation may derive from the express terms of the power-conferring statute or may be implied from its subject matter, scope and purpose. A preferable term would be “mandatory consideration”. Further, a matter traditionally described as an “irrelevant consideration” is one which is prohibited because, having regard to the subject matter, scope and purpose of the power being exercised, it can be seen to reflect an extraneous or improper purpose or to render the decision arbitrary or capricious. Between these two categories is usually a wide range of permissible considerations which the decision-maker may weigh or disregard without committing an error of law. (Emphasis added)
[29](2013) 85 NSWLR 86.
[30](2013) 85 NSWLR 86, [9].
In BZW16 v Minister for Immigration and Border Protection,[32] Bromberg J stated with reliance upon Lo as follows:
. . . a consideration is only irrelevant in law if it is prohibited because having regard to the subject matter, scope and purpose of the power being exercised, it can be seen to reflect an extraneous or improper purpose or to render the decision arbitrary or capricious.
[32] [2019] FCA 395, [17] (Bromberg J)
In A v Corruption and Crime Commissioner, Martin CJ, McLure and Murphy JJ held, with reference to Lo and earlier authorities:[33]
It must be recognised that, between matters a decision maker is bound to take into account, and those irrelevant considerations which the decision-maker is prohibited from considering, there may be a wide range of permissible considerations which the decision-maker may weigh or disregard without committing an error of law. It has been emphasised that a decision maker is not to be criticised for failing to consider everything which the affected party has chosen to include in an exhaustive list of all matters which the decision maker might conceivably regard as relevant.
[33](2013) 306 ALR 491, [90]; see also Robinson v Fielding [2015] WASC 108, 104 (Chaney J); Hamersley Iron Pty Ltd v James [2015] WASC 10, [57] (Beech J).
The Act distinguishes the basis on which a Protection visa application is to be considered by an administrative decision-maker from that by which the cancellation of a visa is to be assessed. In the latter case, it is the criteria in s 109 and reg 2.41 which govern the exercise of the statutory discretion to cancel the visa. It is those provisions which collectively supply the framework of relevant considerations within which a decision-maker is to assess the claims which are made by the applicant.[34]
[34]Cf Sun v Minister for Immigration and Border Protection [2017] FCA 1270, [39]-[40].
The focus of Ground 2 was the statement in the Reasons at [38] respecting the applicant’s wife. It is necessary to see that statement in the context of the Reasons at [36]-[39] which are set out below:
The applicant wife told the Tribunal she to obtained an Iranian passport in Australia after being granted protection. She wanted to show her children where she was from. She has not travelled back to Iran.
Ms Borji said she was granted a protection Visa on 13 July 2011.
The Tribunal notes that Ms Borsji gave birth on 12 June 2012 and, unless the baby was premature, she must have conceived in September 2011. This is significant because she told the Tribunal that she did not have her own claims for protection and she obtained a visa on the basis that her husband – with whom she travelled from Iran – was owed protection. The Tribunal did not inquire further in relation to these issues, but on the face of it, it is concerning that she might have commenced a relationship with the visa holder (AXT17) while still claiming to be a member of the family unit of her first husband.
Ms Borsji has now applied for citizenship. She has provided a form 80 and the Department of Immigration is processing the application.
The Reasons both before and following the passages set out above were concerned with the Tribunal’s consideration of whether the applicant had given, and why he decided to admit that he had provided, incorrect information when completing his visa application: see eg, at [40].
The applicant submitted that there was nothing in the subject matter, scope and purpose of the Act[35] that suggested it could be relevant to a s 109 cancellation decision to consider the alleged infidelity of someone who is not the visa holder who is the subject of the review. Upon that footing, it was said to be impossible to reverse-engineer how much weight the Tribunal afforded to the matters it set out in the Reasons at [38]. Instead, the fact of it being referred to was said to mean that it had been considered to material, even if it had been in some opaque way, to the Tribunal’s reasoning process.
[35] Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 40 (Mason J).
I agree in the applicant’s submission that although the criteria in s 109 and reg 2.41 are non-exhaustive,[36] nothing in the text, subject matter, scope or purpose of those provisions would appear to authorise an administrative decision-maker to take into account the conduct of an applicant’s wife, her promiscuity or her status as a member of her former husband’s family unit in relation to his Protection visa application when assessing whether the criteria prescribed by reg 2.41 were satisfied.
[36] eg, in the sense that PAM3 Guidelines may also be considered.
I consider that, had the Tribunal taken into account the matters contained in its Reasons at [38] when addressing the criteria in s 109 and those prescribed by reg 2.41, it would have involved the consideration of matters that were irrelevant to the proper consideration of the cancellation of the visa. I also agree in the applicant’s submission that those matters were irrelevant considerations in the sense indicated by the authorities; that is, they were properly prohibited from consideration in the cancellation of the visa because, having regard to the subject matter, scope and purpose of the power being exercised in the exercise of a discretion to cancel a visa, they can properly be seen to reflect an extraneous or improper purpose in that decision making process. Put another way, to have taken such matters into account I agree that a decision-maker would properly be regarded as adopting an arbitrary or capricious approach to the process of decision-making. The critical question in the present case then becomes whether it did so.
It may be accepted that a decision-maker’s identification of what it considered to be the material questions of fact may demonstrate that it had taken “into account some irrelevant consideration or did not take into account some relevant consideration.”[37]
[37]Minister for Immigration and Multicultural Affairs v Yusuf (2003) 206 CLR 323, [69], (McHugh, Gummow and Hayne JJ).
The applicant submitted that it was not clear why the Tribunal had considered it necessary to record at [38] that it was ‘concerning’ that the applicant’s wife might have commenced a relationship with the visa holder while still claiming to be a member of the family unit of her first husband. It was also submitted that the statement could not be dismissed as being of no consequence in the circumstance that the Tribunal itself described the matters as ‘significant’, and ‘concerning’.
However, I do not accept that the matters relied upon by the applicant were taken into account. As counsel for the Minister demonstrated, the finding at [38] of the Reasons set out above were located in the section concerned with its consideration of the claims and evidence: [6]-[53]. More precisely, it appeared directly beneath its consideration of the applicant’s evidence in relation to his lost Iranian passport and his acknowledgment to having left Iran using such passport. It also appeared directly above that section of the Reasons concerned with an examination of the applicant’s admission that he had provided incorrect information when completing his visa application.
I consider that the applicant’s submissions distorted the text of what the Tribunal had said in relation to the evidence given by the applicant’s wife. First, the reference to her evidence being ‘significant’ was more accurately to be understood as a signpost to how the Tribunal regarded the evidence from the applicant’s wife as to the date of birth of her child. Whether or not it was correct, the Tribunal inferred from the child’s date of birth that this served to indicate that the wife had conceived the child at a time when the applicant’s wife had not had her own claims to protection and had obtained a visa on the basis that “her husband – with whom she had travelled from Iran – was owed protection.” The evidence was not suggested as having significance for any wider purpose. Secondly, the reference to the evidence as being ‘concerning’ was made in the context of an observation that the witness was at one and the same time in a relationship with the applicant yet claiming to be a member of the family unit of her former husband. Thirdly, the Tribunal made explicit that it “did not inquire further in relation to these issues.”
I agree in the Minister’s submissions that the Tribunal’s concern was not focussed upon any infidelity on the part of the applicant’s wife, but whether she had misled the Department in a material way about whether she had in fact been a member of the family unit of her first husband at the time that he had made his application for a Protection visa. While the matters addressed by the Tribunal with the applicant’s wife at [38] were potentially relevant to her credibility as a witness (where she had been called by the applicant in support of the merits review of his application), I do not consider they were employed by the Tribunal in any way in relation to its consideration of the criteria posed by s 109 and reg 2.41. To the contrary, at most, that evidence had been applied by the Tribunal in its finding that there had been non-compliance with s 101; namely, the completion of the visa application in a manner that the information provided did not contain incorrect answers: [53].
I accept that, objectively, the Tribunal dealt with the evidence of the applicant’s wife in its consideration of the claims and evidence. I further accept that the Tribunal explicitly stated that it had not addressed that topic further. On a fair reading of the Reasons, it follows that when evaluating the factors under reg 2.41 for the purposes of having regard to any prescribed circumstance in deciding whether to exercise the discretionary power to cancel the visa under s 109 of the Act it did not take into account the matters in relation to the applicant’s wife at [38].
More importantly, the statement at [38] did not appear in the discrete section of the Reasons in which consideration was given to the question of whether the visa should be cancelled: see at [54]-[92]. Instead, the statements in [38] were made in the Tribunal’s consideration of the claims and evidence: [6]-[53]. In Khadgi, the Full Court stated:
. . . the Court is entitled to look closely at the structure of the Tribunal’s reasons in order to assess whether it truly has had regard to all mandatory criteria. If, for example, the Tribunal chooses to list each of the reg 2.41 criteria and to make observations and findings in respect of each of those criteria in turn as part of a discrete section of its reasons, the Court which undertakes judicial review of those reasons may be driven to conclude that all of the Tribunal’s reasons concerning the reg 2.41 factors are contained in that section of the Tribunal’s reasons. But that will not necessarily be so. Each case must be looked at and evaluated according to its own particular circumstances.
Those considerations are entirely apposite in the present case.[38]
[38]See also Malek Fahd Islamic School Limited v Minister for Education and Training (No 2) [2017] FCA 1377, [45] (Griffiths J); Sun v Minister for Immigration and Border Protection [2017] FCA 1270, [42] (Reeves J).
Here, the Tribunal did structure its Reasons so as to provide discretely for its consideration of whether the applicant’s visa should be cancelled having regard to the matters in s 109(a)-(c) and reg 2.41. Those Reasons confirm that the Tribunal identified the matters in reg 2.41 and, in particular, that it recognised the need to consider par 2.41(k). Accepting that it need not necessarily be so, upon the principles stated above, and having regard to the content of the Reasons as a whole, I conclude that all of the Tribunal’s reasons concerning the reg 2.41 factors were those contained in the Reasons at [54]-[92]. Nowhere in those Reasons does the Tribunal identify that it took into account its findings at [38] respecting the applicant’s wife. That they do not do so is consistent with its statement in [38] that it did not inquire further in relation to these matters that were addressed by the applicant’s wife.
Ground 2 is rejected.
Ground 3 – compliance with ss 424A and 424AA
Ground 3 of the amended application reads:
The Tribunal failed to comply with ss 424A or 424AA of the Act by taking into account the imputed infidelity of a person other than the Applicant without putting the information to the Applicant for comment.
Ground 3 was advanced as a variation of the complaint made under Ground 2. It will be recalled the Tribunal recorded at [38] that it ‘did not inquire further’ in relation to the alleged infidelity of the wife. For the purposes of Ground 3, the applicant submitted that the presence in the Reasons at [38], and in particular the use of the descriptors ‘significant’ and ‘concerning’, necessarily meant that it ‘would be the reason, or a part of the reason, for affirming’ the decision under review.
It was common ground that where they apply, ss 424AA and 424A of the Act provides that the Tribunal must provide an applicant with clear particulars of any information that it considers would be the reason or a part of the reason for affirming the decision under review: cf SAAP v Minister for Immigration and Multicultural and Indigenous Affairs.[39]
[39] (2005) 228 CLR 294, [77] (McHugh J), [173] (Kirby J), [208] (Hayne J).
The applicant submitted that there had been no compliance with either of those provisions[40] in its treatment of the information given by the applicant’s wife during the hearing as recorded at [38]. It was pointed up that the ‘information’ had been given to the Tribunal not by the applicant but by his wife. In all of those circumstances, it was submitted that there had been a denial of procedural fairness, by non-compliance with ss 424A and/or 424AA such as to ground jurisdictional error.
[40]It was common ground that the applicant bore the onus of proof on the question of whether the Tribunal had not given the applicant clear particulars of such ‘information’ orally in the course of the hearing and that the Affidavit of James Wardlaw dated 30 September 2019, Annexure JW-1, supplied the transcript discharging that onus: act s 424AA(1).
For the reasons given in respect of Ground 2, I am satisfied that the Tribunal did not in fact consider that the suggested information would be the reason, or a part of the reason, for affirming the decision under review.[41] The Minister quite properly drew attention to the statement in the Reasons at [38] that the Tribunal had not inquired further as supporting a conclusion that those matters had not formed a part of the deliberative part of its reasoning as to whether the discretionary power to cancel the visa ought be exercised. All of that reasoning was located within a discrete part of the Reasons at [54]-[92].
[41]cf. Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 92 ALJR 481, [72] (Gageler, Keane and Nettle JJ).
I also accept the Minister’s further submission that ‘information’ within the meaning of s 424A does not extend to either the “subjective thought processes or determinations” or the “existence of doubts, inconsistencies or the absence of evidence”.[42] Finally, contrary to the applicant’s submissions I accept that there was nothing in the evidence given by the applicant’s wife which in terms inherently involved a “rejection, denial or undermining” of the applicant’s claims.[43] As will be recalled, the evidence which she had given related to her pregnancy, the membership of her former husband’s family unit and that she had obtained a visa, none of which would be a reason for cancelling the visa. As I have concluded, each of those matters was irrelevant to consideration of the criteria under s 109 and reg 4.21 as to whether the applicant’s visa ought to be cancelled. And I have concluded that they were not taken into account. It must follow that they were neither the reason nor a part of the reason for affirming the decision under review.
[42]Nguyen v Minister for Immigration and Border Protection [2019] FCA 159, [28] (O’Callaghan J); SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190, [18] (Gleeson CJ, Gummow, Callinan, Heydon and Crennan).
[43] SZBYR, (2007) 81 ALJR 1190, [17].
Ground 3 is rejected.
Conclusion
The application should be dismissed.
I certify that the preceding seventy-two (72) paragraphs are a true copy of the reasons for judgment of Judge A Kelly
Associate:
Date: 30 October 2019
CORRECTIONS:
Reasons for judgment: Paragraph 23 delete [name] and insert AXT17.
Reasons for judgment: Paragraph 51 delete [name] and insert AXT17.
[31][1986] HCA 40; 162 CLR 24, 39 (Mason J).
0
26
3