Campbell-Smith v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FCAFC 153
•4 December 2024
FEDERAL COURT OF AUSTRALIA
Campbell-Smith v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 153
Appeal from: Campbell-Smith v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 710 File number: QUD 424 of 2024 Judgment of: DERRINGTON, GOODMAN AND MCDONALD JJ Date of judgment: 4 December 2024 Catchwords: MIGRATION – application for judicial review of decision of Administrative Appeals Tribunal – non-revocation of visa cancellation – failure to satisfy character test – Tribunal bound by Ministerial Direction 99 issued under s 499 of Migration Act 1958 (Cth) – whether Tribunal erred by failing to give considerable weight to fact that appellant ordinarily resided in Australia during formative years – whether Tribunal erred by reducing weight attributable to fact that appellant started living and resided in Australia in formative years – appeal dismissed Legislation: Administrative Appeals Tribunal Act 1975 (Cth) s 43
Migration Act 1958 (Cth) ss 499, 501, 501CA
Cases cited: BOE21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 99
CJO23 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 1228
Healey v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 295 FCR 210; [2022] FCAFC 188
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610; [2024] HCA 12
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30
Pallas v Minister for Home Affairs [2019] FCAFC 149
Division: General Division Registry: Queensland National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 51 Date of hearing: 4 November 2024 Counsel for the Appellant: Mr J D Byrnes Solicitor for the Appellant: Zarifi Lawyers Counsel for the First Respondent: Mr B McGlade Solicitor for the First Respondent: Clayton Utz Counsel for the Second Respondent: The Second Respondent filed a submitting notice ORDERS
QUD 424 of 2024 BETWEEN: JUSTICE JAYE CAMPBELL-SMITH
Appellant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
DERRINGTON, GOODMAN AND MCDONALD JJ
DATE OF ORDER:
4 DECEMBER 2024
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the costs of the first respondent to be agreed or assessed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
DERRINGTON J:
I agree with the reasons for judgment of McDonald J and with the orders which he proposes.
I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment of the Honourable Justice Derrington. Associate:
Dated: 4 December 2024
REASONS FOR JUDGMENT
GOODMAN J:
I also agree with the reasons for judgment of McDonald J and with the orders which he proposes.
I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment of the Honourable Justice Goodman. Associate:
Dated: 4 December 2024
REASONS FOR JUDGMENT
MCDONALD J:
The appellant, Justice Jaye Campbell-Smith, is a citizen of New Zealand who arrived in Australia in 2012 at the age of 15 years. He has two daughters who live in Australia with their mother, Mr Campbell-Smith’s former partner. Mr Campbell-Smith has a significant record of adult criminal offending in Australia between April 2014 and April 2022, including property and dishonesty offences, drug-related offences, obstructing police, and offences involving breaches of bail, probation orders and community service orders. He has been sentenced to several periods of imprisonment during that time.
On 14 October 2022, a delegate of the first respondent (Minister) made a decision pursuant to s 501(3A) of the Migration Act 1958 (Cth), cancelling the visa held by Mr Campbell-Smith. In accordance with s 501CA(4)(a) of the Migration Act, Mr Campbell-Smith made submissions to the Minister as to why the visa cancellation should be revoked, and on 28 July 2023 another delegate of the Minister decided not to revoke the cancellation of his visa. Mr Campbell-Smith applied to the Administrative Appeals Tribunal (Tribunal) for merits review of that decision.
As Mr Campbell-Smith did not pass the character test, the question that arose for the consideration of the Tribunal was whether there was “another reason” why the decision to cancel his visa should be revoked. On 23 October 2023, the Tribunal affirmed the decision of the delegate’s decision not to revoke the cancellation of Mr Campbell-Smith’s visa. The Tribunal delivered reasons for that decision dated 23 January 2024. Mr Campbell-Smith applied to this Court for judicial review of the Tribunal’s decision.
On 4 July 2024, the primary judge dismissed the application for judicial review. Mr Campbell-Smith now appeals to the Full Court on the ground that the primary judge erred in holding that he had not established that the Tribunal’s decision was affected by jurisdictional error.
For the reasons that follow, the appeal should be dismissed with costs.
Relevant provisions of Direction 99
The Tribunal was required by s 499(2A) of the Migration Act to comply with any relevant directions made by the Minister pursuant to s 499(1). The relevant direction that applied to the Tribunal’s decision-making was Direction No 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction 99).
Under the heading, “Objectives”, cl 5.1(4) of Direction 99 provided:
(4) The purpose of this Direction is to guide decision-makers in performing functions or exercising powers under section 501 and 501CA of the Act. Under section 499(2A) of the Act, such decision-makers must comply with a direction made under section 499.
Clause 5.2 of the Direction set out “principles” which were said to “provide the framework within which decision-makers should approach their task”. Those principles relevantly included the following, in cl 5.2(5):
(5)With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
Clause 5.2(6) stated that “[d]ecision-makers must take into account the primary and other considerations relevant to the individual case”. Clause 6 stated that “a decision-maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision”. The Direction identified various considerations as “primary considerations” and “other considerations”. In cl 7(2) it was stated that “primary considerations should generally be given greater weight than the other considerations”. The “primary considerations” were set out in cl 8 of Direction 99 as follows:
8. Primary considerations
In making a decision under section 501(1), 501(2) or 501CA(4), the following are primary considerations:
(1) protection of the Australian community from criminal or other serious conduct;
(2) whether the conduct engaged in constituted family violence;
(3) the strength, nature and duration of ties to Australia;
(4) the best interests of minor children in Australia;
(5) expectations of the Australian community.
The present appeal concerns the way the Tribunal went about its consideration of one aspect of the third of these “primary considerations”.
The critical clause of Direction 99, from which Mr Campbell-Smith contends the Tribunal departed, is cl 8.3(4)(a)(i). Clause 8.3(4) states:
8.3 The strength, nature and duration of ties to Australia
…
(4) Decision-makers must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:
(a) the length of time the non-citizen has resided in the Australian community, noting that:
i. considerable weight should be given to the fact that a non-citizen has been ordinarily resident in Australia during and since their formative years, regardless of when their offending commenced and the level of that offending; and
ii.more weight should be given to the time the non-citizen has resided in Australia where the non-citizen has contributed positively to the Australian community during that time; and
iii. less weight should be given to the length of time spent in the Australian community where the non-citizen was not ordinarily resident in Australia during their formative years and the non-citizen began offending soon after arriving in Australia.
The concept of “formative years”, an expression which appears in both subcll (i) and (iii) of cl 8.3(4)(a), is not defined or otherwise elaborated upon in Direction 99. The concept was discussed by Feutrill J in CJO23 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 1228 (CJO23) at [50]. It is not necessary in this case to consider the meaning of the concept in detail because it is common ground that Mr Campbell-Smith was resident in Australia for a portion of his “formative years”.
The reasons of the Tribunal
The Tribunal identified the central question in its review as being whether it was satisfied that there was “another reason” why the decision to cancel Mr Campbell-Smith’s visa should be revoked under s 501CA(4) of the Migration Act. The Tribunal recognised that it was bound by s 499 of the Migration Act to comply with Direction 99, and set out or summarised various general provisions of the Direction. The Tribunal then discussed the general nature of Mr Campbell-Smith’s adult criminal offending.
The Tribunal next engaged in an extended analysis of the first primary consideration (“protection of the Australian community”) by reference to the detailed terms of Direction 99. The Tribunal accepted that there was no evidence that Mr Campbell-Smith had engaged in conduct relevant to the second primary consideration (“family violence”).
The Tribunal’s reasons with respect to its consideration of the third primary consideration, “the strength, nature and duration of ties to Australia”, commenced at [86] of its reasons. At [86], the Tribunal accurately set out cl 8.3 of Direction 99 in its entirety. From [87]-[92] of its reasons, the Tribunal considered Mr Campbell-Smith’s family ties in Australia.
Next, under the sub-heading “Applicant’s other ties to Australia”, the Tribunal stated, at [93]:
The Applicant has resided in Australia for around a decade, including a portion of his formative years – as he started living in Australia at the age of around 15 in December 2012. The Respondent contends (and I find) that less weight should be given to the Applicant's residency in Australia, as he commenced offending within 18 months of his arrival.
(Footnotes omitted.)
This is the paragraph of the Tribunal’s reasons which is said by Mr Campbell-Smith to demonstrate that the Tribunal departed from the guidance provided by cl 8.3(4)(a)(i) of Direction 99.
At [94]-[96], the Tribunal referred to, and set out, some of the evidence relating to, Mr Campbell-Smith’s education and vocational training, the fact that he had never engaged in paid employment in Australia, his limited success as a kitchenhand in the prison setting, and his apparent social links with one other person in Australia. At [97]-[98] of its reasons, the Tribunal said:
The Applicant contends that he has strong ties to Australia and that the Tribunal ought to give very strong weight to Primary Consideration 3:
On the grounds that my strength and length and duration of ties to Australia are strong, given that I have kids born here … I also have the majority of my family here, and I have lived here since my formative years. I’ve done high school here …
On the materials before me, while it is clear that the Applicant has very strong ties to Australia via [his two daughters] and [his former partner, who is the mother of his daughters] (and that strong weight should attach to the fact that these persons will be adversely impacted by the Applicant’s removal from Australia), it is also clear that the Applicant has not made any positive contributions to the Australian community. In fact, the Applicant’s entire adulthood in Australia has been marked by almost entirely negative contributions via very serious offending. In balancing the constituent elements of this Primary Consideration 3, I find that moderate weight should attach in the Applicant’s favour.
The Tribunal then expressed its conclusion in relation to the third primary consideration as follows, at [99]: “I find that this Primary Consideration 3 carries a moderate, but not determinative, weight in favour of revocation.” The third primary consideration, to which the Tribunal attached “a moderate, but not determinative, weight” was the consideration concerning Mr Campbell-Smith’s ties to Australia overall, and not only the matter addressed in cl 8.3(4)(a)(i) of Direction 99.
The Tribunal then went on to consider the fourth primary consideration (“the best interests of minor children in Australia”) and the fifth primary consideration (“expectations of the Australian community”) as well as several other relevant considerations. Having articulated the respective weights it had allocated to the various considerations it had identified, the Tribunal concluded that a holistic view of the considerations in Direction 99 favoured the non-revocation of the decision to cancel Mr Campbell-Smith’s visa.
Relevant parts of the decision of the primary judge
The primary judge held (at [27]) that cl 8.3(4)(a) of Direction 99 should not be understood as intending to compel the Tribunal to give “considerable weight” to the fact that a non-citizen has been ordinarily resident in Australia during and since their formative years. Rather, the primary judge held:
The appropriate construction of para 8.3(4)(a)(i) is that it merely provides a guideline that generally considerable weight should be given to the fact that a non-citizen has been ordinarily resident in Australia during and since their formative years, regardless of when their offending commenced and the level of that offending.
On the appeal, Mr Campbell-Smith does not seek to challenge that view of the effect of cl 8.3(4)(a)(i). His submissions proceed from an acceptance that Direction 99 did not necessarily prevent the Tribunal departing from the guidance contained in that clause if it decided that there was reason to do so.
The primary judge addressed Mr Campbell-Smith’s submission that the decision of the Tribunal was affected by illogicality at [30]-[33] of his Honour’s reasons. After quoting from the judgment of the Full Court in BOE21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 99, the primary judge said at [33]:
Accordingly, there is clear authority for the proposition that in assessing the weight to be given to the non-citizen’s ties to the Australian community, a decision-maker may take into account that the non-citizen commenced offending soon after arriving in Australia. That factor may also affect the weight that should be given to the fact that a non-citizen has been ordinarily resident in Australia during and since their formative years. A decision-maker might logically regard the Australian community as having greater responsibility towards a person whose criminality was substantially contributed to by their upbringing in Australia than towards a person whose criminality was substantially forged by their upbringing in another country. There was an intelligible basis for the Tribunal’s departure from the guideline in para 8.3(4)(a)(i) of Direction 99.
Mr Campbell-Smith submitted that [33] of the primary judge’s reasons should be understood as recording a finding that the Tribunal had departed from the guidance contained in cl 8.3(4)(a)(i) of Direction 99 by not giving “considerable weight” to the fact that Mr Campbell-Smith had been permanently resident in Australia during part of his “formative years”. The last sentence of [33] of the primary judge’s reasons could, at least potentially, be read as proceeding on the basis of an implicit acceptance that the Tribunal had departed from Direction 99 in that way.
The appeal
Mr Campbell-Smith appeals to this Court on two grounds. Both concern the way in which the Tribunal approached its consideration of the fact that Mr Campbell-Smith had become a resident of Australia at the age of 15 and had been resident in Australia during part of his “formative years”. The grounds, slightly paraphrased, are as follows:
1. The primary judge erred by failing to find that the Tribunal misunderstood cl 8.3(4)(a)(i) of Direction 99 and, thereby, constructively failed to exercise its jurisdiction and fell into jurisdictional error.
Particulars
a. Clause 8.3(4)(a)(i) of Direction 99 provided that considerable weight should be given to the fact that a non-citizen has been ordinarily resident in Australia during and since their formative years, regardless of when their offending commenced and the level of that offending.
b. Despite applying Direction 99 and finding that the Applicant started living and resided in Australia in his formative years (as per [93] of the Tribunal’s reasons (the Formative Years Fact), the Tribunal reduced the weight attributable to the Formative Years Fact based on when the Applicant’s offending commenced and did not give considerable weight to the Formative Years Fact.
2. In the alternative to 1, the primary judge erred by failing to find that the Tribunal fell into jurisdictional error due to illogicality or irrationality.
Particulars
a. The Tribunal’s reasoning at [93] of its reasons is incompatible with cl 8.3(4)(a)(i) of Direction 99 and there were no cogent reasons against the application of cl 8.3(4)(a)(i) of Direction 99.
On the appeal, Mr Campbell-Smith contends that, in this case, the Tribunal departed from the guidance stated in cl 8.3(4)(a)(i) because it misunderstood the effect of cl 8.3(4)(a)(i). In the alternative, he contends that the Tribunal departed from the guidance for reasons that were illogical or lacking an intelligible justification. Mr Campbell-Smith submits that, while not every departure from the guidance provided by cl 8.3(4)(a)(i) would involve jurisdictional error, the Tribunal’s decision would be affected by jurisdictional error if it departed from the guidance for one of those two reasons.
A threshold issue that arises in relation to both of Mr Campbell-Smith’s grounds of appeal is whether the reasons of the Tribunal demonstrate that the Tribunal did, in fact, depart from the guidance provided by cl 8.3(4)(a)(i) – that is, whether the Tribunal accorded less than “considerable weight” to the fact that Mr Campbell-Smith had started residing in Australia during his formative years.
The Minister relies upon a notice of contention, by which he contends that the appeal should be dismissed on the ground that the Court cannot be satisfied that the Tribunal did not follow the weighing guidance given in cl 8.3(4)(a)(i) of Direction 99. The Minister submits that, on a proper interpretation of the reasons of the Tribunal, it should not be concluded that the Tribunal gave less than “considerable weight” to the fact that Mr Campbell-Smith had been resident in Australia during his formative years.
For reasons to be explained below, the Minister’s submission should be accepted.
Has it been shown that the Tribunal departed from the guidance that it should give “considerable weight” to Mr Campbell-Smith’s residence in Australia during his “formative years”?
The critical paragraph of the Tribunal’s reasons, [93], has been set out at [18] above. In the first sentence of [93], the Tribunal recorded an express finding that Mr Campbell-Smith had resided in Australia for a period that included “a portion of his formative years”. The fact that the Tribunal expressed its reasons in terms of Mr Campbell-Smith’s “formative years” strongly suggests that the Tribunal, at that point in its reasons, was consciously addressing itself to the requirements of cl 8.3(4)(a)(i) of Direction 99. Clause 8.3(4)(a)(i) was the only part of the Direction that was expressed to apply if but only if a non-citizen had resided in Australia during their “formative years”.
The Tribunal did not expressly state that it was giving “considerable weight” to the fact that Mr Campbell-Smith had resided in Australia during his formative years, but it is fairly improbable that the Tribunal, having addressed itself to cl 8.3(4)(a)(i), failed to appreciate that the effect of the Direction was that it should give “considerable weight” to that fact. That is because, although there is some fluidity in the potential meaning of some of the expressions used within cl 8.3(4)(a)(i) (including the expression “formative years”), read as a whole it is a clear statement that decision-makers should give “considerable weight” to the fact (in cases where it is true) that a non-citizen has been ordinarily resident in Australia during and since their formative years.
The expression “considerable weight” is not a precise one that identifies a single point on a continuum of “weight”, but is apt to convey that decision-makers should treat the fact of ongoing residence in Australia during a non-citizen’s formative years as a factor which is significant or substantial. It is not possible to describe precisely the minimum “threshold” level of weight that is to be regarded as “considerable”, but the terms of cl 8.3(4)(a)(i) suggest that decision-makers are at liberty to attribute such weight as they see fit to that factor, providing the weight they attribute is not below the threshold of “considerable weight”. Put another way, cl 8.3(4)(a)(i) contemplates that decision-makers should give the fact of residence in Australia during a non-citizen’s formative years a degree of weight somewhere in the range at or above the minimum that can be described as “considerable”.
Within that contemplated range, there are various factors that might reasonably lead a decision-maker to give relatively greater or lesser weight to the fact that a non-citizen had resided in Australia during their formative years. An obvious example of such a factor is the proportion of the non-citizen’s “formative years” spent in Australia compared to the proportion spent residing in another country, because cl 8.3(4)(a)(i) appears implicitly to recognise that Australia in some sense bears a greater degree of responsibility for persons whose character or personality has been “formed” by their experiences in Australia, and so should be less ready to expel such a person on the ground that they do not pass the character test.
It follows that there is no necessary contradiction between the guidance that the Tribunal give “considerable weight” to the fact of Mr Campbell-Smith’s residence in Australia during his formative years and the next sentence in [93] of the Tribunal’s reasons. The expression “less weight” is a comparative one which invites the question, “less weight than what?”
The most natural reading of [93] of the Tribunal’s reasons is that “less weight” meant less weight than the Tribunal might otherwise have given the fact that Mr Campbell-Smith had lived in Australia during his formative years, had he not commenced offending relatively soon after his arrival in Australia. The way [93] is expressed does not suggest that the Tribunal was using the expression “less weight” to mean “less than considerable weight”.
One consideration which may fairly be regarded as weighing against this interpretation of the Tribunal’s reasons is the fact that the expression “less weight” is one that is used in cl 8.3(4)(a)(iii) of Direction 99. It is possible, as Mr Campbell-Smith submitted, that the Tribunal’s use of that expression might reflect a view that it was subcl (iii) of cl 8.3(4), and not subcl (i), that should be applied to Mr Campbell-Smith’s circumstances. However, for the following reasons, I would not attach much significance to the Tribunal’s use of the expression “less weight” as an indication that it did not give “considerable weight” to the fact of Mr Campbell-Smith’s residence in Australia during his formative years:
(1)The Tribunal’s finding recorded in the first sentence of [93], that Mr Campbell-Smith resided in Australia for part of his formative years, amounted to a finding that the condition for the application of cl 8.3(4)(a)(i) was met, so it is improbable that the Tribunal overlooked that the clause indicated that it should give considerable weight to that fact.
(2)The Tribunal’s finding in the first sentence of [93] also necessarily entailed that one of the conditions for the direct application of cl 8.3(4)(a)(iii) (ie, “where the non-citizen was not ordinarily resident in Australia during their formative years”) was not met, so it is improbable that the Tribunal simply applied the terms of cl 8.3(4)(a)(iii) to the exclusion of cl 8.3(4)(a)(i).
(3)The use of the expression “less weight” was a natural, and perhaps the most natural, way to describe the Tribunal’s thought processes if what it was doing was deciding how much weight it should give to the fact of Mr Campbell-Smith’s residence in Australia during part of his formative years, within the range of possible weight denoted by the expression “considerable weight”.
(4)It was possible, and not irrational, for the Tribunal to give less weight to “[Mr Campbell-Smith’s] residency in Australia” than it might otherwise have done while still giving considerable weight to the fact that he had resided in Australia during a portion of his formative years.
Mr Campbell-Smith also pointed out that the Tribunal’s reasoning at [93] echoed the terms of a submission advanced by the Minister in [41] of his Statement of Facts, Issues and Contentions (SFIC) before the Tribunal. This was said to support an inference that the Tribunal did not give “considerable weight” to the fact that Mr Campbell-Smith had resided in Australia during part of his formative years. The submission at [41] of the Minister’s SFIC acknowledged that Mr Campbell-Smith had lived in Australia for approximately ten years, including during some of his formative years, but “note[d]” that “less weight should be given” to his residency in Australia “as he commenced offending within 18 months of his arrival”. I accept that, as the Tribunal itself acknowledged, its reasons at [93] reflected its acceptance of the submission advanced by the Minister at [41] of the SFIC. However, that does not support a conclusion that the Tribunal gave the fact of Mr Campbell-Smith’s residency in Australia during his formative years less than “considerable weight”. The paragraph of the Minister’s SFIC in which the submission was made followed immediately after the quotation of an extract from cl 8.3 of Direction 99, which included the whole of cl 8.3(4)(a). The Minister’s SFIC acknowledged (at [8]) that the Tribunal was bound by Direction 99 and contained no express submission that the Tribunal should depart from the guidance provided by cl 8.3(4)(a)(i). Read in that immediate context, the most natural reading of the Minister’s submission (like [93] of the Tribunal’s reasons) was that the Minister was acknowledging that cl 8.3(4)(a) was applicable to Mr Campbell-Smith’s circumstances, and was submitting that “less” weight, though not less than “considerable weight”, should be given to the fact of Mr Campbell-Smith’s residency in Australia during part of his formative years.
The Tribunal ultimately stated (at [99]) that it gave “moderate weight” to the third primary consideration as a whole. That is not inconsistent with the Tribunal having given a degree of weight at the lower end of the range of “considerable weight” to one factor that was relevant to that consideration, particularly given that the Tribunal at [98] expressly identified other factors that counted against Mr Campbell-Smith – namely that he had “not made any positive contributions to the Australian community”.
Mr Campbell-Smith relied upon the decision of Feutrill J in CJO23 in support of his submission. In that case, Feutrill J held that the Tribunal had fallen into jurisdictional error because it had overlooked or ignored the direction in cl 8.3(4)(a)(i) of Direction 99 that the Tribunal should give considerable weight to the fact that the non-citizen had resided in Australia during his formative years.
The applicant in CJO23 had resided in Australia for 16 years, from the age of 14. The Tribunal referred in its reasons to the fact of the applicant’s residence in Australia since the age of 14 years, but there was “no discussion of the significance of his residence in Australia from the age of 14 to 18 or any other period of ‘formative years’”: CJO23 at [52]. The Tribunal made no reference in its reasons to the concept of the applicant’s “formative years” or to the guidance provided by cl 8.3(4)(a)(i).
The reasons that led Feutrill J to conclude that the decision of the Tribunal in CJO23 was affected by jurisdictional error included the following (at [53]-[54]):
The Tribunal was required to give reasons for its decision. Where the Tribunal gives written reasons for its decision, those reasons must ‘include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based’: s 43(2) and s 43(2B) of the Administrative Appeals Tribunal Act 1975 (Cth).
Given that the Tribunal was required to have regard to and should have given, or at least should have considered giving, considerable weight to the fact the applicant was ordinarily resident in Australia during his formative years, it cannot be inferred from the absence of any reference to that factor or the weight attributed to it that the Tribunal was not persuaded that the factor was of any significance and, therefore, it was not considered material to the Tribunal’s reasons. The inference I draw is that the Tribunal failed to identify and understand the manifest relevance of the facts it found on the materials before it. That is, it overlooked or ignored a factor to which it was required to have regard under para 8.3(4)a)i. of Direction 99: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 at [69]. Therefore, the Tribunal failed to perform the review it was required to perform under s 500(1)(ba) of [the Migration Act]. …
Mr Campbell-Smith submitted that the present case was similar to CJO23, in that the Tribunal had not specifically referred to the weight it attached to the fact of his residency in Australia during part of his formative years.
In my view CJO23 is to be distinguished. In that case, the reasons of the Tribunal did not characterise the applicant’s situation by reference to residency in Australia during his “formative years”, and revealed no recognition that the fact that the applicant had resided in Australia from the age of 14 was significant to the Tribunal’s task because it suggested that he was resident in Australia during part of his “formative years”. In contrast, in the present case, the Tribunal specifically referred to the concept of “formative years” and recorded an express finding that that Mr Campbell-Smith had been resident in Australia for a portion of his formative years. The terms in which the Tribunal recorded that finding indicate that it was addressing the very issue on which the applicability of cl 8.3(4)(a)(i) depended.
This is not a case where there was no relevant factual finding addressed to the terms of cl 8.3(4)(a)(i), such that it could be inferred that the Tribunal did not regard Mr Campbell‑Smith’s residency in Australia during his formative years as material to its decision: cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 at 330 [5], 331 [10] (Gleeson CJ), 346 [68]-[69] (McHugh, Gummow and Hayne JJ). On the contrary, the first sentence of [93] of the Tribunal’s reasons suggests it did regard that fact as material, even though the Tribunal did not expressly articulate the weight it gave to that fact. The Tribunal’s reasons were not required by s 43(2B) of the Administrative Appeals Tribunal Act 1975 (Cth) to record every aspect of its thought processes: see, eg, Healey v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 295 FCR 210; [2022] FCAFC 188 at 222 [36], citing Pallas v Minister for Home Affairs [2019] FCAFC 149 at [45]. While the Tribunal could have articulated more clearly the significance it attached to its acceptance of the fact that Mr Campbell-Smith had resided in Australia during a portion of his formative years, the fact that the Tribunal did not expressly state that it gave that fact “considerable weight” does not lead to the conclusion that the Tribunal overlooked or ignored, or otherwise departed from, the guidance stated in cl 8.3(4)(a)(i) in the present case.
It is not necessary to decide whether the reasons of the primary judge at [33] are to be understood as containing a positive finding that the Tribunal did give less than “considerable weight” to Mr Campbell-Smith’s residency in Australia during his formative years. Given that the parties’ competing submissions were based on the interpretation of the Tribunal’s reasons, the Full Court is in as good a position to reach a conclusion about that question as was the primary judge. In my view, for the reasons given above, it should not be concluded that the Tribunal’s reasons demonstrate that it gave less than “considerable weight” to that fact.
Mr Campbell-Smith has not established that the Tribunal departed from the guidance provided by cl 8.3(4)(a)(i) of Direction 99 by failing to give considerable weight to the fact that he had been present in Australia during part of his formative years. That was the factual premise on which both of his grounds of appeal were based. Subject to one further submission that remains to be considered, the rejection of that premise has the consequence that neither of Mr Campbell-Smith’s grounds of appeal can succeed.
The meaning of “regardless of when their offending commenced and the level of that offending” in cl 8.3(4)(a)(i) of Direction 99
A further submission advanced by Mr Campbell-Smith was that the effect of cl 8.3(4)(a)(i) was to require the Tribunal to treat the time when Mr Campbell-Smith’s offending commenced and the level of that offending as irrelevant considerations when deciding the weight to be given to the fact that he had resided in Australia during part of his formative years. In particular, it was submitted that that was the effect of the use of the expression “regardless of when their offending commenced and the level of that offending” at the end of cl 8.3(4)(a)(i). Although this submission was advanced as an aspect of the argument in support of ground 1, if it were accepted it might provide a stand-alone basis to conclude that the Tribunal had misunderstood Direction 99.
The most natural reading of cl 8.3(4)(a)(i) is that decision-makers should afford weight to the fact that a non-citizen was resident in Australia during their formative years which is at or above the minimum threshold denoted by “considerable weight”, whenever the non-citizen’s offending commenced and however serious it was. The function of the clause commencing with the word “regardless” is to indicate that at least the minimum level of “considerable weight” should ordinarily be given to the fact of a non-citizen’s residency in Australia during their formative years, despite the existence of certain facts that might be regarded as unfavourable to the non-citizen. It would be surprising if the direction had been intended to preclude any consideration being given to factors that would naturally seem relevant to determining how much weight, within the possible range of “considerable weight” above the minimum threshold, should be given to the fact of residence in Australia during a non-citizen’s formative years, and it is not necessary to read Direction 99 that way.
Materiality
In light of the above conclusions, it is not necessary to consider the submissions of the parties as to whether any error of the Tribunal was material to its decision in the sense that the decision could realistically have been different had the Tribunal not made the error: see LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610; [2024] HCA 12 at 614 [7], 615 [14].
Conclusion
I would order that the appeal be dismissed with costs.
I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McDonald. Associate:
Dated: 4 December 2024
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