Domingos v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 864
•26 August 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Domingos v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 864
File number(s): SYG 2520 of 2019 Judgment of: JUDGE DRIVER Date of judgment: 26 August 2021 Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a student visa – Tribunal not satisfied that the applicant was a genuine temporary entrant for study – whether the Tribunal overlooked a claim or made an unreasonable finding considered – observations on materiality of any error – jurisdictional error established Legislation: Income Tax Rates Act 1986 (Cth)
Migration Act 1958 (Cth), ss 65, 348, 438, 499
Migration Regulations 1994 (Cth)
Cases cited: AAZ19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 407
ADA18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 371
Applicant S270/2019 v Minister for Immigration and Border Protection (2020) 383 ALR 194
Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 236 FCR 593
ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109
Babar v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 275 FCR 413
BAO18 v Minister for Home Affairs (2019) 166 ALD 427
BHL19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 277 FCR 420
CGA15 v Minister for Home Affairs (2019) 268 FCR 362
Chamoun v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 66
CRL18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 917
DAO16 v Minster for Immigration and Border Protection (2018) 258 FCR 175
DPI17 v Minister for Home Affairs (2019) 366 ALR 665
DQM18 v Minister for Home Affairs (2020) 278 FCR 529
Dunasemant v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 128
DUR16 v Minister for Immigration and Border Protection [2020] FCA 1155
DVE18 v Minister for Home Affairs [2020] FCAFC 83
Fepuleai v Minister for Home Affairs [2021] FCA 277
Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123
Ji Hyang Lee v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1084
Minister for Immigration and Border Protection v SZMTA; CQZ15 v Minister for Immigration and Border Protection; BEG15 v Minister for Immigration and Border Protection (2019) 264 CLR 421
Minister for Immigration and Border Protection v SZUXN (2016) 69 AAR 210
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99
Minister for Immigration v SZMTA (2019) 264 CLR 421
MKBL v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1827
Mouflih v Minister for Home Affairs (2019) 168 ALD 148
MZAPC v Minister for Immigration and Border Protection [2021] HCA 17
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1
Peraj v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 184
PQSM v Minister for Home Affairs [2020] FCAFC 125
SZVAP v Minister for Immigration and Border Protection (2015) 233 FCR 451
Tsvetnenko v United States of America (2019) 269 FCR 225
Number of paragraphs: 131 Date of last submission/s: 2 July 2021 Date of hearing: 29 April 2021 Place: Sydney Solicitors for the Applicant: Mr S Stagliorio of Northam Law Counsel for the Respondents: Mr G Johnson Solicitors for the Respondents: Sparke Helmore ORDERS
SYG 2520 of 2019 BETWEEN: FELIPPE DOMINGOS
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE DRIVER
DATE OF ORDER:
26 AUGUST 2021
THE COURT ORDERS THAT:
1.A writ of certiorari shall issue, removing the record of the Administrative Appeals Tribunal decision made on 5 September 2019 into this Court for the purpose of quashing it.
2.A writ of mandamus shall issue, requiring the Administrative Appeals Tribunal to redetermine according to law the application for review before it.
REASONS FOR JUDGMENT
JUDGE DRIVER:
INTRODUCTION AND BACKGROUND
The applicant, Mr Domingos, seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 5 September 2019. The Tribunal affirmed decisions of a delegate of the Minister (delegate) not to grant the applicants temporary student visas. There were two applicants before the Tribunal who were a husband and wife. They have since separated and only Mr Domingos is an applicant before the Court.
The following statement of background facts is derived from the submissions of the parties.
Mr Domingos is a national of Brazil.[1] On 2 March 2017,[2] he and his ex-wife arrived in Australia. He arrived on a student visa as the primary visa holder and the ex-wife arrived on her own separate student visa. Both visas were valid until 18 September 2017 and were obtained for the purposes of allowing Mr Domingos and his ex-wife to study English.[3]
[1] Court Book (CB) 2
[2] CB 46 and 156 [6]
[3] CB 32, 33, 46 and 156 [6]
On 14 September 2017,[4] Mr Domingos applied for a student visa as the primary visa applicant (the ex-wife being the secondary visa applicant) to undertake the following courses: a Certificate IV in Commercial Cookery and a Diploma of Hospitality Management.[5] On 15 December 2017, the delegate made decisions refusing to grant Mr Domingos and his ex-wife student visas.[6] The basis for refusing to grant Mr Domingos a visa was a finding that he did not satisfy clause 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations)[7] that required Mr Domingos to be a “genuine temporary entrant”. The regulation specifies:
[4] CB 37, 38, 43 and 154 [2]
[5] CB 26, 31, 32, 45, 46
[6] CB 38-48
[7] CB 44-46
500.212 The applicant is a genuine applicant for entry and stay as a student because:
(a)the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i) the applicant’s circumstances; and
(ii) the applicant’s immigration history; and
(iii)if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and
(iv) any other relevant matter; and
(b)the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:
(i)the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and
(ii)the applicant’s stated intention to comply with any conditions to which the visa may be subject; and
(c) of any other relevant matter.
The basis for refusing to grant the ex-wife a visa was a finding that she did not satisfy clause 500.311 of Schedule 2, which required that she be a member of the family unit of the holder of a student visa.[8]
[8] CB 47
On 5 January 2018, Mr Domingos and his ex-wife made a combined, electronic application to the Tribunal for merits review of the delegate’s decisions.[9] The Tribunal’s decision record erroneously stated that the review application was lodged on 5 November 2017,[10] although this error is of no moment.
[9] CB 49-50
[10] CB 154 [4]
On 11 June 2019, the Tribunal sent Mr Domingos an email which enclosed a letter addressed to him and his ex-wife.[11] That letter invited them to provide information by way of a hyperlink to an “online Request for Student Visa Information form” (Information form).[12] The Information form was submitted with answers to the Tribunal electronically on 24 June 2019.[13] The Information form included the question “[d]o you and any other applicants consent to the Tribunal deciding the review without a hearing?”, which was answered in the affirmative.[14] As a result, there was no hearing.[15]
[11] CB 126-127
[12] CB 127-128
[13] CB 135-148 and 154 [5]
[14] CB 136
[15] CB 154 [5]
As noted above, Mr Domingos responded to the invitation by completing a “Request for Student Visa Information” form.[16] Mr Domingos also provided a letter from the Canterbury Technical Institute confirming he was enrolled in two courses (a Certificate IV in Commercial Cookery, and a Diploma of Hospitality Management).[17]
[16] CB 135
[17] CB 149
On 5 September 2019 the Tribunal affirmed the decision under review.[18] The Tribunal was not satisfied that Mr Domingos met the requirements of clause 500.212. The Tribunal applied Ministerial Direction No 69 (Direction) and had regard to the evidence before it. In accordance with the policy, the Tribunal considered at [6]-[17][19] Mr Domingos’ background and immigration history, his education and work experience in Brazil, the purpose and benefit of the courses Mr Domingos proposed to undertake and his understanding of those courses as revealed in his responses to the Tribunal’s request for information, and his personal ties to Brazil and to Australia. The Tribunal acknowledged at [4][20] that the factors for consideration under the Direction were not to be used as a checklist, but only as a guide for decision-makers when considering an applicant’s circumstances as a whole.
[18] CB 153
[19] CB 156-158. The numbering of paragraphs recommenced from [1] after first numbered [8] at CB 154
[20] CB 155
The Tribunal was not satisfied Mr Domingos was a genuine applicant for entry and stay as a student, and therefore found that he failed to meet clause 500.212.
THE CURRENT PROCEEDINGS
These proceedings began with a show cause application filed on 1 October 2019. Mr Domingos now relies upon an amended application filed on 22 January 2020. There are two particularised grounds in that application as amended:
1.The Second Respondent (Tribunal) made a jurisdictional error by constructively failing to exercise its jurisdiction, as mandated by s 348 of the Migration Act 1958 (Cth), to review the decision of the First Respondent (Minister) to refuse to grant the Applicant a visa. The Tribunal failed to take into account a substantial, clearly articulated claim by the Applicant, relying on evidence, which engaged with a mandatory relevant consideration within the scope and purpose of cll 500.212(a)(i) and (iv) of Schedule 2 to the Migration Regulations 1994 (Cth).
Particulars
(a)In reviewing the Minister's decision to refuse to grant the Applicant a Class TU, subclass 500 (Student) visa, the Tribunal was required to determine whether cl 500.212 of Schedule 2 to the Regulations was satisfied.
(b)Paragraphs 500.212(a)(i) and (iv) of Schedule 2 to the Regulations provided that, in determining whether the Applicant "[intended] genuinely to stay in Australia temporarily", the Tribunal was required to have regard to "the applicant's circumstances" and "any other relevant matter", respectively.
(c)The Applicant provided the Tribunal with a submission (commencing at CB 51) where the Applicant stated that he "[remained] available to military service commitments active due to the Brazilian law because they could request [him] for doing military service until [his] 45 years old" (sic - CB 59).
(d)The submission referred to the "Presidency of the Republic Decree-Law No. 1,187, of April 4,1939", Article 5 of which was transcribed in the submission: CB 59, and see CB 84.
(e)The material before the Tribunal, including that contained in the Applicant's submission relevantly at CB 59. articulated a claim that the Applicant's military service commitments in Brazil represented ties, and served as an incentive for the Applicant to return, to that country.
(f)The Tribunal was legally obliged to consider that claim as a mandatory relevant consideration, in circumstances where it was squarely articulated by the Applicant and was relevant to his satisfaction of cll 500.212(a)(i) and (iv) of Schedule 2 to the Regulations and relevant to paragraphs [6], [9] and [16] of Ministerial Direction 69.
(g)The Tribunal failed to consider the Applicant's claim and thus constructively failed to exercise its jurisdiction to review the Minister's decision. That constituted a jurisdictional error.
2.The Tribunal’s finding at CB 157[14] that the Applicant’s economic circumstances in Australia may present a significant incentive for the Applicant not to return to Brazil was illogical and irrational, represented a critical step in the Tribunal’s ultimate state of satisfaction that the Applicant did not satisfy the criterion in cl 500.212 of Schedule 2 to the Regulations and vitiated the Tribunal’s decision with jurisdictional error.
Particulars
(a)The Applicant provided evidence to the Tribunal concerning his past and anticipated salary in Brazil: CB 137; CB 146. That salary was in the amounts of $30,000AUD equivalent (past), and $40,000AUD equivalent (anticipated, which the Tribunal did not reject: CB 156-157[11]) per annum.
(b) The Tribunal found that:
i)the Applicant earned $30,000AUD equivalent per annum in Brazil immediately before entering Australia: CB 156[8];
ii)the Applicant earned $28,800AUD and had expenses of $19,800 per annum in Australia: CB 157[14];
iii)the Applicant was "earning $9,000 in Australian currency per annum in excess of his expenses": CB 157[14]; and
iv)given the above surplus and the fact "the United … Nations Human Development Index ranks Brazil as 79th in the world compared to Australia's ranking of 3rd in the world", the Applicant's "economic circumstances in Australia relative to Brazil may present as a significant incentive for [him] not to return": CB 157[14].
(c)On the evidence before the Tribunal and its own findings, the Applicant's past earnings in Brazil and his future earning capacity in Brazil were greater than his earnings in Australia.
(d)In the Tribunal's calculation of the "surplus" of $9,000, the Tribunal failed to account for the impact of income tax on the amount of any surplus.
(e)In the circumstances, the Tribunal's finding at CB 157[14] was one that no logical or rational decision-maker could have arrived at on the evidence before the Tribunal and in light of its own findings of fact.
(f)The Tribunal's finding at CB 157[14] was a critical step in its ultimate decision to refuse to grant the Applicant a Student visa and vitiated that decision with jurisdictional error.
The only evidence I have before me is the court book filed on 29 November 2019.
Both Mr Domingos and the Minister filed pre hearing written submissions and made oral submissions through their representatives at the trial on 29 April 2021. Post hearing submissions were filed on the issue of materiality. I have been assisted by those submissions.
CONSIDERATION
Mr Domingos’ contentions
Ground 1
Relevant facts
The Information form sent by the Tribunal on 11 June 2019 included the following question, which was answered in the negative:[21] “[d]oes the Main Applicant have any concerns about military service commitments or political or civil unrest in their home country?”
[21] CB 146
Mr Domingos annexed to his merits review application his submissions dated 4 January 2018, along with 14 attachments.[22] Those submissions made detailed arguments towards satisfaction of clause 500.212(a), including the reasons for choosing the courses he chose, how such courses would benefit his career upon his return to Brazil and that the couple had several reasons to return to that country, including their property (such as a house, investments, private and public social security contributions and cars), and family ties in Brazil.
[22] CB 51-122
Importantly, the letter included the following claim:[23]
Also, I remain available to military service commitments active due to the Brazilian law because they could request to me for doing military service until my 45 years old, the according to Presidency of the Republic DECREE-LAW No. 1,187, OF APRIL 4, 1939. Article 5:
The obligation of military service in peacetime lasts 25 years for the Army or Navy and begins from the beginning of the calendar year in which the individual turns 21 years of age. Source: Presidency of the Republic Decree-Law (Attached 14)
(errors in original)
[23] CB 59 (second last paragraph of that page)
Mr Domingos provided the Tribunal with a copy of the Presidency of the Republic Decree‑Law No. 1,187, of April 4, 1939,[24] which included Article 5 (in English) as extracted above.[25]
[24] CB 84 - 99
[25] CB 84
The decision record includes the following passage, which comprises the full extent of what the Tribunal said about military service in Brazil:[26]
The applicants have also indicated in their response to the s359(2) letter that they do not have any concerns about potential military service in Brazil or political or civil unrest circumstances in Brazil.
[26] CB 158 at [17]
Relevant law
The Tribunal would fail to observe its obligation under s 348(1) of the Migration Act 1958 (Cth) (Migration Act) if it “failed to take account of a substantial and clearly articulated argument advanced by the applicant in support of [their] case”.[27]
[27] Minister for Immigration and Border Protection v SZMTA; CQZ15 v Minister for Immigration and Border Protection; BEG15 v Minister for Immigration and Border Protection (2019) 264 CLR 421 at [13] (Bell, Gageler and Keane JJ). There is nothing to suggest that the reasoning in SZMTA, about Part 7, should not equally apply to Part 5 of the Migration Act
It was relevantly held as follows in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2):[28]
It is plain enough, in the light of Dranichnikov, that a failure by the Tribunal to deal with a claim raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review, can constitute a failure of procedural fairness or a failure to conduct the review required by the Act and thereby a jurisdictional error. It follows that if the Tribunal makes an error of fact in misunderstanding or misconstruing a claim advanced by the applicant and bases its conclusion in whole or in part upon the claim so misunderstood or misconstrued its error is tantamount to a failure to consider the claim and on that basis can constitute jurisdictional error …
[28] (2004) 144 FCR 1 at [63] (Black CJ, French and Selway JJ)
A lack of reference in the reasons of the Tribunal to a claim made by an applicant does not necessarily lead to an inference that it failed to consider that claim, as it is “not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons”,[29] because: “[i]t may be that some evidence is irrelevant to the criteria and some contentions misconceived”;[30] it may be “unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality”;[31] and there may be “a factual premise upon which a contention rests which has been rejected”.[32]
[29] Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 236 FCR 593 at [46] (French, Sackville and Hely JJ)
[30] Applicant WAEE at [46]
[31] Applicant WAEE at [47]
[32] Applicant WAEE at [47]
Another principle that militates against the drawing of that inference is that the reasons of administrative decision-makers “are not to be scrutinised ‘with an eye keenly attuned to error’”.[33] However, this principle “cannot overcome the plain reading of the reasons”.[34]
[33] Applicant WAEE at [46]
[34] Babar v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 275 FCR 413 at [31] (Steward, Colvin, Abraham JJ)
An inference that the Tribunal has failed to consider an issue is “not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point”.[35] However, a “conspicuous absence from otherwise detailed reasons of any reference [to a consideration might indicate that] it is unlikely that the Tribunal incorporated this consideration in its reasons”.[36] Further, where “there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked”.[37] Ultimately, “[e]very case must be considered according to its own circumstances”.[38]
[35] WAEE at [47]
[36] Dunasemant v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 128 at [54] (Katzmann J)
[37] Applicant WAEE at [47]
[38] NABE (No 2) at [63]
The Tribunal was bound by s 499(2A) of the Migration Act to comply with the Direction,[39] issued under s 499(1).
[39] CB 129-134
The factors to be considered by the Tribunal under clause 500.212(a) may be neutral or weigh in favour or against satisfaction of this provision.[40]
[40] Kumar v Minister for Immigration and Border Protection (2020) 274 FCR 646 at [85] (Derrington and Thawley JJ, with whom Logan J agreed). See also clause 16 of the Direction (CB 134)
An error is only jurisdictional if it was material to the decision in the sense that, had it not been made, the outcome of the decision could (not necessarily would) have been different.[41] Materiality is said to be “not a high threshold”.[42] In fact, the threshold is said to be very low. Otherwise, it would invite courts to engage in impermissible merits review.[43]
[41] SZMTA, at [48]-[49] (Bell, Gageler and Keane JJ)
[42] Mouflih v Minister for Home Affairs (2019) 168 ALD 148 at [51] (Rangiah J)
[43] RZMW v Minister for Home Affairs (2019) 168 ALD 176 at [72] (Jackson J)
Applying the law to the facts
Mr Domingos contends that, as his claim concerning his military obligations in Brazil was made in the context of giving the reasons he had to return to that country,[44] that claim was plainly to the effect that such military commitments would provide an incentive for him to return to Brazil, which is reinforced by the fact that such a claim started with “[a]lso”, if requested “for doing military service”. This incentive is hereafter referred to as the potentially positive effect that those military service obligations could have on the satisfaction clause 500.212(a), which constitutes the clearly articulated claim referred to in Ground 1 of the amended application.
[44] CB 59 (second last paragraph of that page)
The Tribunal is said to have made an error in that, as argued below, it failed to consider that claim[45] and/or misunderstood it.[46]
[45] SZMTA at [13]
[46] NABE (No 2) at [63]
Although the Tribunal did not expressly say so, a plain reading of [17] of the decision record indicates that the Tribunal was considering whether there were any circumstances in Brazil that could serve as an incentive for Mr Domingos not to return to that country, such as concerns about “potential military service” (see clause 9(d) of the Direction) or “political or civil unrest” (see clause 9(e) of the Direction). This consideration is referred to by Mr Domingos as a consideration of the potentially negative effect that those military service obligations could have on the satisfaction clause 500.212(a).
A claim that can give rise to a finding that the evidence given by an applicant does not have a negative effect is very different from a claim that can give rise to a finding that the evidence given by an applicant has a positive effect: the absence of a negative effect results in a neutral consideration, which cannot be equated to a positive effect. Mr Domingos asserts that his claim concerning his military obligations concerned the potentially positive effect, not the potentially negative effect.
The question which thus arises is whether it should be inferred from the lack of an express reference in the decision record to the potentially positive effect that the Tribunal failed to consider it. Mr Domingos submits it should, for a number of reasons.
First, that the Tribunal overlooked the potentially positive effect claim is not to scrutinise its decision “with an eye keenly attuned to error”. A “plain reading”[47] of the decision record indicates that, in circumstances where the Tribunal expressly referred only to the potentially negative effect and did not refer to the potentially positive effect at all, it is unlikely that the Tribunal considered the latter, especially where, as here and in contrast, Mr Domingos made an express reference to the latter and the latter only.
[47] Babar at [31]
Secondly, it cannot be said that the potentially positive effect claim or its corroborating evidence were “irrelevant to the criteria”[48] found in clause 500.212(a), for the following reasons:
(a)clause 500.212(a)(iv) prescribed “any other relevant matter”; and
(b)an applicant’s military obligations in their home country were within the nature, scope and purpose of clause 500.212(a).
[48] Applicant WAEE at [46]
Although only the potentially negative effect was set out in the Direction (under clause 9.d), the very fact that military commitments were set out in the Direction and set out under the heading “[t]he applicant’s circumstances in their home country” suggests that the potentially positive effect was also a relevant consideration under cl 500.212(a)(i), which was about “the applicant’s circumstances”.
Although the Direction did not expressly address the potentially positive effect, the Direction was not an exhaustive list of the factors that should be taken into account in determining whether a person satisfies clause 500.212(a). In fact, the Direction stated at clause 1 that it provided mere guidance and was not a checklist and at clause 16 that decision-makers should “have regard to any other relevant information provided by the applicant”.
The claim is said to be relevant to clause 6 of the Direction, which called for consideration of an “applicant’s circumstances in their home country”.
Neither can it be said that the potentially positive effect claim amounted to a “misconceived” contention,[49] as it was cogent and based on intelligible evidence.
[49] Applicant WAEE at [46]
Thirdly, nothing in the decision record suggests that any findings the Tribunal may otherwise have made on the potentially positive effect claim was “subsumed in findings of greater generality”.[50]
[50] Applicant WAEE at [47]
Fourthly, nothing in the decision record suggests that there was a “factual premise upon which [the potentially positive effect] contention rests which has been rejected”.[51]
[51] Applicant WAEE at [47]
Fifthly, even if it could be said that the decision record is “otherwise comprehensive”,[52] the “conspicuous absence from otherwise detailed reasons of any reference [to the potentially positive effect claim indicates that] it is unlikely that the Tribunal incorporated this consideration in its reasons”.[53]
[52] Applicant WAEE at [47]
[53] Dunasemant at [54]
Sixthly, although the Tribunal did identify the potentially negative effect, this does not amount to “the issue [having] at least been identified at some point”,[54] as “the issue” in the relevant sense in this case was not the existence of a potentially negative effect, but rather the existence of a potentially positive effect, as this is how Mr Domingos’ claim was framed in that regard.
[54] Applicant WAEE at [47]
Considering the case in its totality “according to its own circumstances”,[55] they are said to raise a “strong inference”[56] that the potentially positive effect claim was overlooked and/or misunderstood.
[55] NABE (No 2) at [63]
[56] WAEE at [47]
Unless the Minister rebuts that “strong inference”, it is said to follow that the Tribunal overlooked and/or misunderstood Mr Domingos’ potentially positive effect claim, thus constructively failed to exercise its jurisdiction under s 348(1) of the Migration Act and made an error. The error is said to have been material and therefore jurisdictional in that, had it not been made, the Tribunal could have placed weight on the potentially positive effect, which in turn could have “tipped the balance”[57] in favour of Mr Domingos, especially as some factors weighed “significantly” in his favour.[58] Whether it would have tipped the balance is not a question for the Court to answer on judicial review. Rather, it is for the Tribunal and the Tribunal only to decide whether to ascribe weight to the potentially positive effect claim and how much weight to place on it.
[57] Mouflih at [51]
[58] For instance, see CB 157 [15]
Mr Domingos submits that, surely, had the Tribunal neither overlooked nor misunderstood Mr Domingos’ claim that his military commitments had a potentially positive effect, it would have been open to it not to accept such claims on the evidence before it. It would also have been open to the Tribunal to treat any military service commitment as also having a potentially negative effect. However, what was not open to the Tribunal was to overlook or misunderstand Mr Domingos’ claim, as it did.
Minister’s contentions
It is well-established that the Tribunal may fall into an error going to jurisdiction if it fails to consider a substantial, clearly articulated claim. As the Full Federal Court stated in DVE18 v Minister for Home Affairs[59] at [34]:
In the context of an application for a protection visa, the decision-maker’s task is to respond to a “substantial, clearly articulated argument relying upon established facts” including any claim that clearly emerged from the materials: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 21; (2003) 73 ALD 321 at [24] (Gummow and Callinan JJ, Hayne J agreeing at [95]); NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 at [58], [63], [68]. A material failure to do so may be characterised either as a failure to afford natural justice or as a constructive failure to exercise jurisdiction: Dranichnikov at [25] (Gummow and Callinan JJ), [78] (Kirby J); and see Coker v Minister for Immigration and Border Protection [2017] FCA 929; (2017) 160 ALD 588 at [43], [46] – [49] (Moshinsky J) and the cases summarised therein. In Dranichnikov, the failure to consider an articulated claim signalled a basic misunderstanding of the case brought by the visa applicant, resulting in a flaw “so serious as to undermine the lawfulness of the decision in question in a fundamental way”: at [88] (Kirby J).
[59] [2020] FCAFC 83
However, the Full Federal Court in NABE (No 2) stated at [68] that a judgment that the Tribunal has failed to consider a claim not expressly advanced is not lightly to be made.
The applicant did not claim that his military obligation in Brazil was an incentive for him to return to Brazil. In the Tribunal submission at CB 59 the applicant advanced:
I remain available to military service commitments active due to Brazilian law because they could request to me for doing military service until my 45 years old…
(errors in original)
Further, in his response to the Tribunal’s request for information, Mr Domingos, in answer to the question, “[d]oes the Main Applicant have any concerns about military service commitments or political or civil unrest in their home country?”, answered, “[n]o”.[60] The Tribunal had regard to this information at [17]. It was open to the Tribunal to deal with that information in the way it did; that is, to find that the applicant did not raise the prospect of military service as a deterrent to return.
[60] CB 146
The Minister submits that had Mr Domingos intended to advance the military service obligation as a reason incentivising his return, then he could, and would, have said this. Mr Domingos did not rely on his military service obligation as a reason not to return to Brazil, but he also did not assert that it was a reason incentivising his return, and such a claim did not arise “squarely” on the materials. There was nothing inherent in Mr Domingos’ claim that he “remained available” for military service commitments in Brazil that this was information relevant to his circumstances as supporting his desire, or which served as an incentive, for him to return to Brazil.
Resolution
I prefer the Minister’s submissions in relation to the first ground. The information provided by Mr Domingos to the Tribunal concerning his military service obligations in Brazil were in my view clearly intended to demonstrate that he was not seeking to avoid military service obligations by remaining in Australia. In other words, Mr Domingos was seeking to avoid military service obligations being used against him.
However, Mr Domingos put nothing before the Tribunal to claim that his military service obligations provided an incentive for him to return to Brazil. Neither did any such claim squarely (or “fairly”)[61] arise from the available material. That material established plainly that for as long as Mr Domingos remained in Australia, he was deferring his military service obligations. It could also be assumed that he treated those obligations as a lower priority than his studies. The Tribunal recognised these salient facts at [17] of its reasons.[62]
[61] See ADA18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 371 at [21]
[62] CB 158
As I put to the representatives during oral argument, it appears to me that the question of military service obligations in Brazil was neither a pull factor to Australia or a push factor to Brazil. It was neutral. As such, it needed no further consideration by the Tribunal.
Ground 2 – unreasonableness
Mr Domingos’ contentions
Relevant facts
The Tribunal found that Mr Domingos’ most recent annual salary in Brazil shortly before arriving in Australia was equivalent to $30,000AUD,[63] based on a claim to that effect.[64] Mr Domingos also claimed that, upon return to Brazil following completion of his courses in Australia, he would open his own restaurant in his hometown.[65] He further claimed that “[t]he main salary of a qualified chef in Brazil is AUD 40,000 per year”, which is a claim that the Tribunal never rejected.[66]
[63] CB 156 [8]
[64] CB 137
[65] CB 52, 60, 141 and 145
[66] CB 146, 156-157 [11]
Mr Domingos also claimed that in Australia, his annual salary was $28,800AUD and his annual living expenses were $19,800AUD.[67] The Tribunal seems to have accepted this claim. The term “seems” is used here because the sentence which contains those two figures is, with respect, unintelligible: “[s]he has not pro since July 2017 earning $28,800AUD per annum and has expenses of $19,800AUD per annum”. As the difference between those two figures claimed by Mr Domingos is $9,000AUD and the Tribunal found that he was earning $9,000AUD in Australia “in excess of his expenses”,[68] it seems that the Tribunal accepted such claim. The sum of $9,000 is hereafter referred to as the surplus referred to at Particular 2(d) of the amended application.
[67] CB 143-144
[68] CB 157 [14]
Mr Domingos also claimed that his ex-wife had contributed to the National Institute of Social Security in Brazil for almost 14 years towards the 30 years of contribution required “[i]n order to receive the Pension for Period of Service”.[69]
[69] CB 57 (third last paragraph of that page) and 63-64
Given the surplus and that the United Nations Human Development Index (Index) “ranks Brazil as 79th in the world as compared to Australia’s ranking of 3rd in the world”,[70] the Tribunal found that the “the applicants’ economic circumstances in Australia relative to Brazil may present as a significant incentive for them not to return”.
[70] CB 157 [14]
Relevant law
As a canon of statutory interpretation at common law, a statutory provision conferring power upon an administrative decision-maker should be construed as implying a condition to the valid exercise of power that it be exercised legally reasonably.[71] Although Li concerned the exercise of a discretionary power, it is well settled that the principles in Li also apply to the exercise of non-discretionary powers. There is no reason why the same canon should not apply to s 348(1) of the Migration Act. It follows that a condition to the validity of the Tribunal’s power of review, including its assessment of clause 500.212(a), is that its exercise be legally reasonable.
[71] Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [29] (French CJ) and [88]-[90] (Gageler J)
The question of whether the Tribunal has made a legally unreasonable decision is not answered by considering whether a court emphatically disagrees with the decision. Rather, the question is whether the decision in question was rationally “open to” the Tribunal on the evidence before it.[72] “The legal standard of unreasonableness should not be considered as limited to what is in effect an irrational, if not bizarre, decision”. In other words, although an argument of legal unreasonableness will be made out if a court finds that a decision was “so unreasonable that no reasonable person could have arrived at it”, that finding is not necessary for a court to hold that a decision was affected by error.[73]
[72] Li at [30] (French CJ)
[73] Li at [68] (Hayne, Kiefel and Bell JJ)
Further, “an inference of unreasonableness may in some cases be objectively drawn even where a particular error in reasoning cannot be identified”.[74] “Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification”.[75]
[74] Li at [68] (Hayne, Kiefel and Bell JJ)
[75] Li at [76] (Hayne, Kiefel and Bell JJ)
The Tribunal is required by s 348(1) of the Migration Act to review decisions based on a correct understanding and application of the relevant law,[76] which presupposes the identification of relevant pieces of legislation. In exercising its powers under s 348(1), the Tribunal should be mindful of the relevant personal income tax rates applicable to an applicant if it chooses to take their Australian income into account in assessing whether clause 500.212(a) is satisfied. Those rates are contained in Part I of Schedule 7 to the Income Tax Rates Act 1986 (Cth), according to which the tax for a person earning $28,800 is of $2,014.[77]
[76] Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 at [34] (Kiefel CJ, Gageler and Keane JJ)
[77] According to Item 1 of the first table in Part I, the rate is of 19 per cent for the part of the income that exceeds the “tax-free threshold”, defined under s 3 to mean $18,200. The part of the income that exceeds $18,200 is $10,600 ($28,800 minus $18,200). 19 per cent of $10,600 is $2,014
The same materiality principles discussed under Ground 1 apply to Ground 2.
Applying the law to the facts
Mr Domingos contends that there are several issues with [14] of the decision record, each of which is sufficient to establish jurisdictional error. Further or in the alternative, the aggregate of those issues is said to establish jurisdictional error.
It was not open to the Tribunal on the evidence before it to conclude that the surplus supported its finding that the “the applicants’ economic circumstances in Australia relative to Brazil may present as a significant incentive for them not to return”, for many reasons.
First, to say, without more, that given the surplus and the Index, “the applicants’ economic circumstances in Australia relative to Brazil may present as a significant incentive for them not to return” is to merely state a conclusion without disclosing the rationale for it. In other words, the Tribunal failed to explain why and how the surplus contributed to it arriving at its conclusion. As held by Hayne, Kiefel and Bell JJ in Li, the fact that it is not “possible for a court to comprehend how the decision was arrived at” does not prevent it from concluding that a decision was legally unreasonable. In fact, the very difficulty in ascertaining how a decision was arrived at supports a finding of legal unreasonableness.
For completeness:
(a)while it is true that the Tribunal said at [14] that the surplus and the Index “may” present a significant incentive for Mr Domingos not to return to Brazil, a “plain reading” of the decision record reveals that it expressly found at [18][78] that the surplus and the Index did present that incentive; and
(b)the incentive finding was informed not only by the Index; importantly, it was also informed by the surplus. In other words, the Tribunal’s finding about the surplus was integral to its finding about the existence of the incentive.
[78] CB 158
The Tribunal referred to the “applicants’” (plural) economic circumstances, as opposed to Mr Domingos’ economic circumstances. Contrastingly, it referred only to Mr Domingos’ salary and expenses, as the salary and expenses of his ex-wife were not provided to the Tribunal, perhaps because the Information form sought information only from the “main applicant” in that regard. Therefore, for the sake of clarity and consistency, references to the “applicants’” economic circumstances in the decision record are treated as references to Mr Domingos’ economic circumstances by Mr Domingos.
Secondly, both Mr Domingos’ previous salary in Brazil and the salary he claimed he was expected to earn upon return were higher than his salary of $28,800AUD in Australia. Therefore, the only ways in which the surplus could possibly contribute to the Tribunal’s finding that Mr Domingos’ economic circumstances in Australia presented a significant incentive for him not to return to Brazil were if:
(a)the surplus were higher than the difference between his expected earnings and living expenses in Brazil;
(b)the Tribunal had not accepted his claim concerning his expected salary upon return to Brazil; or
(c)the Tribunal had found that Mr Domingos was unlikely to find employment in Brazil upon return.
However, the Tribunal:
(a)did not engage in any analysis of how much Mr Domingos’ expenses in Brazil were or were expected to be upon return, let alone a calculation of the difference between his expected salary and living expenses and taxes in that country, in order to compare that difference to the surplus;
(b)never rejected his claim concerning his expected salary in Brazil; and
(c)found that the cookery course was “likely to assist and improve his employment prospects upon his return to Brazil”.[79]
[79] CB 157 [12]
Thus, Mr Domingos submits that the surplus offered no rational or intelligible basis to support the Tribunal’s conclusion that “[Mr Domingos’] economic circumstances in Australia relative to Brazil may present as a significant incentive for [him] not to return”.
Thirdly, in order to accurately calculate the surplus, the Tribunal was required to know that Mr Domingos was required to pay $2,014 in income tax, which would result in an actual surplus of $6,986, not $9,000. By not deducting $2,014 from the $9,000, the Tribunal erroneously added almost 29 per cent to the actual surplus.
Fourthly, it cannot be sensibly suggested that the Tribunal’s reference to Mr Domingos’ earnings was to earnings after income tax, for a reasonable person would interpret the question at CB 143, responded to with “$28,800AUD” and (as it seems) found by the Tribunal to be at this amount, as referring to salary before taxes.
Fifthly, the unintelligible reference at [14] that “[s]he has not pro since July 2017 earning $28,800AUD” compounds the irrationality of the finding concerning Mr Domingos’ economic circumstances, as it is impossible to know what was meant by the phrase starting with those words. As a result, one is left to speculate that it seems that the Tribunal arrived at the amount of $9,000 in the way discussed above.
Sixthly, the words “[s]he has not pro” suggest that the Tribunal intended to say something about the ex-wife’s economic circumstances, but never did. That invites speculation as to what the Tribunal intended to say about her own economic circumstances and whether and how that affected its assessment of clause 500.212(a). After all, for the same reasons discussed above in the context of Ground 1, the ex-wife’s own economic circumstances in Brazil are within the nature, scope and purpose of 500.212(a), as it would not be fanciful to suggest that whether an applicant’s spouse had incentives to return to their home country was capable of having a bearing on whether that applicant himself or herself had such an incentive.
Seventhly, Mr Domingos provided evidence that his ex-wife had contributed to the National Institute of Social Security in Brazil for almost 50 per cent of the period required “[i]n order to receive the Pension for Period of Service”. That was an argument clearly made, which was never addressed by the Tribunal, to the effect that the ex-wife had an incentive to return to Brazil and thus so did Mr Domingos. One is left to speculate whether the Tribunal meant to address that claim at the sentence starting with the terms “[s]he has not pro”.
Eighthly, as that sentence was never intelligibly completed, it is impossible to know how and why that claim regarding the ex-wife’s own economic circumstances and the incentives it may have created for both of them to return to Brazil was assessed in the context of clause 500.212(a). For the reasons discussed above, Mr Domingos submits that not being able to identify how a finding was arrived at bespeaks legal unreasonableness. It is of no moment that Mr Domingos is no longer married to his ex-wife, as judicial review focuses on the time of the administrative decision, at which point it is not fanciful to suggest that her circumstances could have a bearing on his own intentions to return.
In summary, Mr Domingos submits that either it is impossible to understand how the Tribunal arrived at the conclusion that the surplus supported its finding that Mr Domingos’ economic circumstances represented an incentive for him not to return, or that finding was illogical or irrational. In either case, the Tribunal’s decision was legally unreasonable.
The error in Ground 2 is said to be material and thus jurisdictional in that, had it not been made, the balance could have “tipped”[80] in favour of Mr Domingos, especially as some factors weighed “significantly” in his favour.[81] To cite only two examples, had the Tribunal exercised its power legally reasonably, it could have: placed less weight on the surplus, by realising it erroneously added almost 29 per cent to it; or realised that the surplus could be matched or even overcome by any surplus Mr Domingos could have in Brazil upon return.
[80] Mouflih at [51]
[81] For instance, see CB 157 [15]
Minister’s contentions
A high degree of caution must be exercised when illogicality is alleged in a decision of the Tribunal, in order to ensure that the Court does not embark impermissibly on merits review.[82] A decision will not be vitiated on the basis of illogical or irrational findings of fact or reasoning unless “extreme” illogicality or irrationality is shown.[83]
[82] See Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [38], [96], [130]; SZVAP v Minister for Immigration and Border Protection (2015) 233 FCR 451 at [14]-[15]; DAO16 v Minster for Immigration and Border Protection (2018) 258 FCR 175 at [30(5)]
[83] Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at [148]
In Minister for Immigration and Citizenship v SZMDS,[84] Crennan and Bell JJ explained at [135] that:
... A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.
[84] (2010) 240 CLR 611
What the authorities indicate is that the Court should be slow to find that a finding of fact leading to a decision is irrational or illogical if the finding was, at least, open on the materials before the decision-maker.
The Tribunal’s finding at [14] was neither illogical nor irrational. The Tribunal there referred to the evidence before it concerning Mr Domingos’ economic circumstances. It referred to the evidence of Mr Domingos’ assets in Brazil (a house and investments) and in Australia (a car). It referred to the evidence of Mr Domingos’ earnings in Australia since July 2017 and his expenses, noting his net earnings were $9,000AUD. It noted that Australia ranked more highly than Brazil on the Index.
The Tribunal’s findings and conclusions at [14] must, however, be read in context, including by reference to the evidence of Mr Domingos’ past earnings in Brazil which, at most, amounted to $30,000AUD per annum.[85] Those earnings equated to roughly the same as what Mr Domingos was earning in Australia. It was, in the circumstances, at least open to the Tribunal to find that the economic situation for Mr Domingos in Australia was relatively better than that in Brazil, and that this “may present as a significant incentive for them not to return”.
[85] See CB 156 [8]
Resolution
Mr Domingos’ second ground focuses attention on [14] of the Tribunal’s reasons where the Tribunal stated:[86]
The applicant indicated they have $60,000AUD equivalent to support them while living onshore at the time of their application in 2017.[87] The applicant also owns a house and investments in Brazil worth a total of $285,000AUD equivalent and a car in Australia worth $2,000AUD. He has been working as a cook at Marinara Restaurant Ltd. She has not pro since July 2017 earning $28,800AUD per annum and has expenses of $19,800AUD per annum.[88] The Tribunal notes that the United Nations Human Development Index ranks Brazil as 79th in the world as compared to Australia's ranking of 3rd in the world.[89] Given this and the fact that the applicant is earning $9,000 in Australian currency per annum in excess of his expenses, the Tribunal considers that the applicants' economic circumstances in Australia relative to Brazil may present as a significant incentive for them not to return.
[86] CB 157
[87] See page 11 of the Department File.
[88] See applicant’s response to the s359(2) letter.
[89] See Table 1 of United Nations' Human Development Indices and Indicators 2018 Statistical Update <>
It is difficult to attribute any meaning to the fourth sentence in the middle of the paragraph but, when read by reference to the preceding paragraphs, it can probably be assumed that, notwithstanding the use of the personal pronoun “she”, the Tribunal was intended to refer to Mr Domingos’ income and expenses in Australia as put by him. The following reference to the Index is problematic for reasons I have given in earlier cases.[90]
[90] See, for example, Ji Hyang Lee v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1084. However, the Index is not an irrelevant consideration
The Tribunal’s proposition that the simple fact that Mr Domingos has a small surplus of income over expenditure in Australia presents a “significant incentive” for him not to return to Brazil is, to say the least, curious, especially when read with [9] of the Tribunal’s reasons[91] where the Tribunal accepted Mr Domingos’ submissions concerning his greater earning capacity in Brazil than in Australia. If the Tribunal had intended to state that the cost of living in Brazil was higher than in Australia then it should have said so. Neither is there any reference to the exchange rate as between Australia and Brazil.
[91] CB 156
The view of a court that particular reasoning by the Tribunal is unpersuasive does not, however, establish legal unreasonableness. While the Tribunal’s reasoning is in part unintelligible and on balance unpersuasive, at the conclusion of the trial of this matter I was unable to say that the errors in fact finding made by the Tribunal were material to the outcome. The impugned reasoning must also be read in the context of the ultimate conclusions of the Tribunal at [18].[92]
[92] CB 158f
After judgment was reserved, Mr Domingos’ representatives brought to my attention the decision of the High Court in MZAPC v Minister for Immigration and Border Protection[93] which was dealt with in post hearing submissions.
[93] [2021] HCA 17
On the question of materiality, Mr Domingos submits as follows.
Types of materiality assessment
In order for the power and duty to grant a visa to be enlivened, all of the criteria imposed for the grant of that visa must be satisfied. That is because that power and duty are enlivened under s 65 of the Migration Act if, and only if, all of the relevant criteria are satisfied. In other words, a single finding that a criterion is not satisfied is sufficient to allow and require refusal to grant a visa. It is also important to appreciate that there are, broadly speaking, two types of materiality assessments: one involving “independent” findings[94] and another involving “intermingled”[95] or single findings, as discussed below.
[94] For instance, see Hossain at [10] (Kiefel CJ, Gageler and Keane JJ), [41] (Nettle J), and [44] (Edelman J); and AAZ19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 407 at [59] (Allsop CJ)
[95] For instance, see CGA15 at [61] (Murphy, Mortimer and O’Callaghan JJ); AAZ19 at [59] (Allsop CJ); and BAO18 v Minister for Home Affairs (2019) 166 ALD 427 at [55] (Murphy J)
Independent findings
It follows from the effect of s 65 that, if an administrative decision-maker finds that relevant criterion “A” is not satisfied, the decision-maker is required to refuse to grant the visa. It does not matter whether that decision-maker erroneously finds that relevant criterion “B” is not satisfied either. The findings concerning criteria “A” and “B” are thus “independent” in the sense that each of them is sufficient, regardless of the other, to allow and require refusal to grant the visa.
In Hossain, the Tribunal had reviewed a decision to refuse to grant a visa. The majority of the High Court held that the Tribunal had erroneously found that a criterion (ie clause 820.211(2)(d)(ii) of Schedule 2 to the Regulations, the equivalent to criterion “B” above) was not satisfied, but that the error was immaterial, as the Tribunal had correctly found that (independent) criterion (ie clause 820.223(1)(a), the equivalent to criterion “A” above) was not satisfied either.
To the majority, the assessment of the materiality of the error about the finding on criterion “B” involved a simple question (Question 1): was there an independent finding (eg a finding that criterion “A” above is not satisfied) that sufficed to allow and require refusal to grant the visa? As the answer was “yes”, the visa could not have been granted, due to the effect of s 65, with the result that the error was not material and thus not jurisdictional. That was the end of the matter.
Intermingled or single findings
In other cases,[96] the only adverse finding made by an administrative decision-maker concerns only one criterion (eg criterion “B” above), in which case there is no equivalent to criterion “A” above that would suffice to allow and require refusal to grant the visa. In those cases, as there are no “independent” findings, the answer to Question 1 is “no”, in which case a further question (Question 2) arises: had the error concerning criterion “B” not been made, could (as opposed to would)[97] a different outcome have ensued? If the answer to Question 2 is “no”, the error was not material and thus not jurisdictional. Otherwise, the error was material and thus jurisdictional and “there is no need to make any further assessment of the likelihood of the [error] affecting the decision”.[98]
[96] For instance, see SZMTA; AAZ19; CGA15 and BAO18
[97] MZAPC at [2] (Kiefel CJ, Gageler, Keane and Gleeson JJ)
[98] MKBL at [55] (Jackson J)
In the context of Question 2, two types of findings can possibly be involved in the making of the error (concerning criterion ‘B’) whose materiality is being assessed: intermingled findings or a single finding. An example of intermingled findings is where a criterion involves a balancing exercise of multiple factors. Axiomatically, that exercise involves intermingled findings, as they all speak to one criterion. An example of a single finding is where there is no weighing exercise and the decision-maker must answer a single question concerning a criterion: for instance, whether a visa applicant has given the Minister evidence of arrangements for health insurance, pursuant to clause 500.215 of Schedule 2 to the Regulations. In either case, there is no equivalent to a finding on criterion “A” that could provide an independent basis for the refusal.
Legal unreasonableness is material by definition
In MZAPC, five justices of the High Court held that a legally unreasonable decision is, by definition, vitiated with jurisdictional error.[99] Such a holding concerned only Question 2. That is because, unlike Hossain, there were no “independent” findings made by the Tribunal in MZAPC.
[99] MZAPC at [31] and [33] (Kiefel CJ, Gageler, Keane and Gleeson JJ) and [181] (Edelman J); see also DPI17 at [106]; MZAPC at [85], [87] and [100] (Gordon and Steward JJ, acknowledging that some errors are material by definition, although not specifically discussing legal unreasonableness); Hossain at [40] (Nettle J acknowledging the same)
These proceedings
The Tribunal affirmed the delegate’s decision on the basis of only one criterion, namely clause 500.212(a) of Schedule 2 to the Regulations, which, axiomatically, involved a balancing exercise of intermingled findings. Applying MZAPC and the above principles to these proceedings, if the Tribunal made the error claimed in Ground 2 of the amended application (i.e. legal unreasonableness), that error was jurisdictional, without the need to assess the materiality of the error. In any event, even if there were a need to assess materiality, each of the following alternative arguments would be sufficient to establish that the error in Ground 2 was material.
First, even if the intermingled findings weighed overwhelmingly against satisfaction of the relevant criterion (clause 500.212(a)), which is not conceded, it would not be possible for a court on judicial review to conclude that, had an error in a finding involving one of those factors not been made, the outcome could not have been different. That is because such a conclusion could only be reached if the Court found that the absence of the erroneous finding could not have tipped the balance in favour of satisfaction of the relevant criterion, which in turn would necessarily involve the court itself ascribing weight to those findings and thus engaging in impermissible merits review.[100]
[100] For instance, see SZMTA at [48] (Bell, Gageler and Keane JJ); MKBL at [56] (Jackson J); RZMW at [71]-[72] (Jackson J); and Chamoun v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 276 FCR 75 at [69] (Mortimer and Bromwich JJ)
Secondly, even if those multiple factors weighed overwhelmingly against satisfaction of the relevant criterion and although “there is a significant element of reconstruction involved”[101] in assessing materiality, the reconstruction “is not to be undertaken by reference to the subjective conclusions reached by the decision-maker herself or himself as part of the impugned decision”, otherwise “emphatic adverse findings in a particular decision... would effectively immunise decisions from scrutiny on judicial review”.[102] In other words, and contrary to the Minister’s oral submissions that any errors could be “severed” so as to save the Tribunal’s decision from invalidity, the error cannot be “severed”[103] or “surgically excised from the Tribunal's reasons, leaving the framework surrounding it intact”.[104]
[101] Chamoun at [70] (Mortimer and Bromwich JJ)
[102] DQM18 v Minister for Home Affairs (2020) 278 FCR 529 at [115]-[117] (Bromberg and Mortimer JJ)
[103] CGA15 at [61] (Murphy, Mortimer and O’Callaghan JJ)
[104] MKBL at [58] (Jackson J)
Thirdly, the factors weighing against satisfaction of the relevant criterion were, in any event, not overwhelming, especially as some factors weighed “significant[ly]” in favour of satisfaction of the relevant criterion.[105]
[105] For instance, see CB 157 [15]
Fourthly, the materiality test poses a very low threshold,[106] lest courts engage in impermissible merits review. Indeed, the threshold has been thus described: “a matter of real and not marginal or fanciful relevance”;[107] whether the result was “inevitable”;[108] there being “at least some prospect, however remote”,[109] or a “realistic”,[110] more than “derisory”[111] or “non-existent”[112] chance or “possibility”,[113] of a different decision, had the error in question not been made.
[106] MZAPC at [85] (Gordon and Steward JJ) and [157] (Edelman J); Mouflih at [51] (Rangiah J); CRL18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 917 at [83] (Stewart J)
[107] DQM18 at [113] (Bromberg and Mortimer JJ)
[108] DUR16 v Minister for Immigration and Border Protection [2020] FCA 1155 at [27] (Burley J)
[109] DQM18 at [113]-[114] (Bromberg and Mortimer JJ) and [168] (Snaden J)
[110] SZMTA at [45] and [48]-[50] (Bell, Gageler and Keane JJ)
[111] Fepuleai v Minister for Home Affairs [2021] FCA 277 at [44] (Kerr J)
[112] Peraj v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 184 at [73] (Besanko J)
[113] Applicant S270/2019 v Minister for Immigration and Border Protection (2020) 383 ALR 194 at [4] (Kiefel CJ and Gageler J in a separate, non-dissenting judgment)
In summary, the Tribunal clearly placed appreciable weight on its (unreasonable) finding impugned in Ground 2 that Mr Domingos’ economic circumstances presented a “significant incentive” (emphasis added) for him not to return to Brazil.[114] Given the above principles, the absence of that error clearly could have made a difference to the outcome.
[114] See CB 157 [14] and 158 [18]
The combination of the errors made by the Tribunal in the findings relating to Ground 2, as discussed in the written outline of submissions filed for Mr Domingos on 1 April 2021 (ie ignoring that Mr Domingos’ income in Australia was lower than in Brazil, not comparing whatever income “surplus” Mr Domingos would have in Brazil to his “surplus” in Australia, ignoring the effect of income tax, unintelligibly discussing Mr Domingos’ “incentives” to remain in Australia, among others), itself is also sufficient to establish materiality.[115]
[115] See RZMW at [66]-[68] (Jackson J); CRL18 at [79] and [84] (Stewart J)
The arguments made [89]-[94] and [97]-[100] above equally apply to the materiality of the error in Ground 1 of the amended application, with the result that the error impugned in Ground 1 was also material and thus jurisdictional.
The Minister relevantly responds as follows.
On 19 May 2021 the High Court delivered judgment in MZAPC. That case concerned the content and proof of the element of materiality as identified in Hossain, in the context of an asserted failure by the Tribunal to disclose to the appellant the existence of a notification under s 438 of the Migration Act.
The applicant appears to rely on what the plurality (Kiefel CJ, Gageler, Keane and Gleeson JJ) stated at [33] (and see also Edelman J at [181]):
… The threshold of materiality was not expressed to be additionally required to be met for every breach of every condition of a conferral of statutory decision-making authority to result in a decision-maker having exceeded the limits of the authority conferred by statute in the absence of an affirmative indication of a legislative intention to the contrary. There are conditions routinely implied into conferrals of statutory decision-making authority by common law principles of interpretation which, of their nature, incorporate an element of materiality, non-compliance with which will result in a decision exceeding the limits of decision-making authority without any additional threshold needing to be met. The standard condition that a decision-maker be free from actual or apprehended bias is one example. The standard condition that the ultimate decision that is made lie within the bounds of reasonableness is another.
(footnotes omitted)
The plurality in support of the statement appearing in the final sentence of [33] cited the Full Federal Court’s judgment in Tsvetnenko v United States of America[116] at [96]-[101]. In that case, at [96], the Full Federal Court stated, citing SZVFW:
Having regard to the nature of the review ground, it is illogical to speak of the extent of noncompliance with an implied obligation to make a decision that is reasonable. It is not possible to conceive of an instance in which it might be demonstrated that the decision itself is unreasonable, but not in a material way. Rather, in a case where unreasonableness is sought to be demonstrated by reference to the reasons given by the decision-maker the application of the requirement for materiality involves a consideration as part of evaluating whether the decision is unreasonable as to whether any illogicality or other defect in the reasoning was material to the decision.
[116] (2019) 269 FCR 225
The Full Federal Court in Tsvetnenko itself referred to earlier judgments of the Full Federal Court where the question of the role of materiality was considered in the context of judicial review of decisions said to be affected by legal unreasonable, in particular CGA15 and DPI17. In each of those cases (with the possible exception of Mortimer J in DPI17) the Full Federal Court has sought to apply the High Court’s approach to materiality as a necessary feature of a breach of an express or implied condition of a conferral of statutory authority that results in jurisdictional error as revealed in Hossain and SZMTA.
It is unnecessary for this Court to consider, let alone resolve, any disharmony between MZAPC and earlier judgments of the Full Federal Court. This Court is bound by MZAPC. That case does not however lead to the conclusions advanced by Mr Domingos in his supplementary written submissions. Even accepting, and it must be accepted, that a decision that is legally unreasonable is affected by jurisdictional error without the need additionally to consider whether the legal unreasonableness is material in the sense discussed in Hossain, and SZMTA, that does not mean that a conclusion by the Court in this case that the Tribunal’s reasoning or findings expressed at [14] of its decision record results in a determination of jurisdictional error in the Tribunal’s decision to affirm the decision under review.
The following steps need to be followed:
(1)the Court must determine whether the reasoning or findings in [14] are legally unreasonable or irrational, applying orthodox principles; and
(2)if the Court is satisfied in the affirmative of that question, the Court must then determine whether that results in a conclusion that the Tribunal’s ultimate decision on the review constituted an exercise of power that lay beyond the scope of the authority conferred by the power.
If the answer to the second question is in the affirmative, it is implied that the nature of the error infecting the Tribunal’s decision warrants the characterisation of a jurisdictional error without the need for any additional consideration of materiality.
The question then is whether the Tribunal’s findings at [14], which Mr Domingos contends is unreasonable or irrational (which is resisted by the Minister), were so central to the ultimate conclusion expressed by the Tribunal at [18]-[20] that any unreasonableness or irrationality in that paragraph can be said to infect the ultimate decision.[117] Another way of putting is, is whether the erroneous feature of the decision “leads to the end result”.[118] The Minister submits that on a fair reading of the Tribunal’s reading, the findings at [14] can be severed. It is clear from the Tribunal’s conclusions at [18] that the Tribunal’s primary concerns lay with the fact that Mr Domingos had completed his cookery course, and that the course was a significant downgrade in education level that would not benefit Mr Domingos. Applying common sense to the limits of the exercise of power, it cannot be envisaged that the Parliament would have intended decisions such as this to be invalid simply because one insignificant feature of the reasoning in the decision was found to be unreasonable or irrational.
[117] Minister for Immigration and Border Protection v SZUXN (2016) 69 AAR 210 at [55]
[118] ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109 at [47]
Mr Domingos’ supplementary submission (at [98] above) that one aspect of an “intermingled finding” cannot be severed from the rest is not supported by authority. Rather, cases such as ARG15 and MKBL require a more evaluative approach. It is not to be overlooked that the Full Federal Court in ARG15 restated the high bar to be met of “extreme” illogicality or irrationality. For the reasons set out in the Minister’s earlier written submissions, and oral submissions made at hearing, Mr Domingos has not established error in the Tribunal’s decision to the requisite standard.
I prefer Mr Domingos’ submissions on the issue of materiality in relation to the second ground.
It appears that what the Minister submits by reference to Ground 2 of the amended application, is that, although a “decision that is legally unreasonable is affected by jurisdictional error without the need additionally to consider whether the legal unreasonableness is material, … that does not mean that a conclusion by the Court in this case that the Tribunal’s reasoning or findings expressed at [14] of its Decision Record [were legally unreasonable] results in a determination of jurisdictional error in the Tribunal’s decision to affirm the decision under review”.
That amounts to a proposition that a legally unreasonable finding only amounts to jurisdictional error if it is material to the decision in question. The Minister’s argument, subject to what is discussed below, is hard to reconcile with the High Court’s ruling in MZAPC,[119] according to which decisions affected by legal unreasonableness are vitiated with jurisdictional error by definition, that is without the need to establish materiality. In effect, the Minister seems to be contending, subject to what is discussed below that courts are required to take the further step of assessing whether a legally unreasonable finding was material to the decision in question.
[119] At [33] (Kiefel CJ, Gageler, Keane and Gleeson JJ) and [181] (Edelman J)
I cannot reconcile the Minister’s argument with MZAPC unless it could be said that what the High Court had in mind in MZAPC was that legal unreasonableness can arise in two contexts, namely in decision-making processes and in decisions themselves. However, the High Court’s decision does suggest that it had those two contexts in mind. To avoid doubt, Mr Domingos does not dispute that legal unreasonableness can arise in those two contexts. Rather, he disputes that the High Court had those two contexts in mind for the purpose of the ruling. I prefer that approach.
Although it is true that the High Court did refer to the “ultimate decision” in MZAPC, such a reference in and of itself does not resolve whether the High Court had the two contexts above in mind:
(a)MZAPC was not a case concerning legal unreasonableness, let alone any potential difference between those two contexts for the purpose of the materiality test;
(b)to say that legal unreasonableness in the ultimate decision is material by definition does not say that legal unreasonableness in the decision-making process is not material by definition;
(c)although legal unreasonableness can, broadly speaking, arise in those two contexts, that does not support a proposition that different tests of materiality should apply to each of those contexts; and
(d)in any event, a distinction between the test for materiality of legally unreasonable decision-making processes and the test for materiality of legally unreasonable decisions themselves is illusory. Wigney J, in dissent but not on this point, held in BHL19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[120] at [138] that “defective, illogical, or irrational reasoning or fact finding may support a finding that the ultimate decision or exercise of discretion was legally unreasonable”. Although it is true that Wigney J went on to say at [138] that that was the case “particularly where the illogicality relates to a critical matter upon which the decision or exercise of discretion turned”, a test of criticality (which on one view might be seen as another way of expressing the materiality test) is not necessary for the distinction to be shown to be illusory, as the word “particularly” indicates.
[120] (2020) 277 FCR 420
The Minister refers to two decisions in support of the further step, namely SZUXN at [55] (Wigney J) and ARG15 at [47] (Griffiths, Perry and Bromwich JJ). However, those decisions of, respectively, the Federal Court and the Full Federal Court, cannot prevail over the High Court’s decision in MZAPC.
If anything, [55] of SZUXN only supports Mr Domingos’ argument that, instead of re‑introducing the further step, which would contradict the ruling, the Court is rather tasked to assess whether “the impugned finding is but one of a number of findings that independently may have led to the Tribunal’s ultimate conclusion”. Here, as discussed above in Mr Domingos’ supplementary submissions in chief, the finding impugned in Ground 2 was not one of a number of ‘independent’ findings, but rather part of ‘intermingled’ findings.
The Minister refers to the “bar” for irrationality or illogicality being high, but the simple fact of the height of the bar does not support the Minister’s arguments:
(a)materiality concerns the “gravity” of an error to the decision in question, which is simply another way of describing how high a “bar” is;[121]
(b)given the high bar, a legally unreasonable finding is necessarily of gravity to the decision: in fact, according to Edelman J in MZAPC at [181], “[a] decision that is legally unreasonable will, by definition, involve an error [such as in fact finding] that is not trivial or harmless”;
(c)were the gravity of a legally unreasonable finding to be assessed also by means of the further step (ie the materiality step), that gravity would be assessed twice, once as part of the inherently high bar involved in the assessment of legal unreasonableness, the other as part of the further step; and
(d)assessing the gravity of a legally unreasonable finding twice would be absurd, which explains why five Justices of the High Court held in MZAPC, without drawing the distinction, that materiality is established by definition in cases of legal unreasonableness.
[121] Hossain at [25] (Kiefel CJ, Gageler and Keane JJ)
Materiality established in any event
In any event, even if it were accepted that the Court should take the further step, the errors made by the Tribunal were nevertheless material, for the following reasons.
The Minister argues that “[i]t is clear from the Tribunal’s conclusions at [18] that the Tribunal’s concerns lay with the fact that [Mr Domingos] had completed his cookery course, and that the course was a significant downgrade in education level that would not benefit [Mr Domingos]”. There are two problems with that proposition.
First, the Tribunal never found that Mr Domingos had completed his cookery course. Rather, the Tribunal found that he “ought now to have completed” that course by the time of its decision. Secondly, and most importantly, even if one were to view the finding that he “ought now to have completed” the course in cookery and that it represented a “downgrade” as a concern to the Tribunal, that would be far from its primary concern. In fact, another concern expressly stated by the Tribunal at [18] was, in its words, the “economic incentives the applicants have to remain onshore”, which is the object of Ground 2.
Also, the Minister submits that “it cannot be envisaged that the Parliament would have intended decisions such as this to be invalid simply because one insignificant feature of the reasoning in the decision was found to be unreasonable or irrational”. I do not accept the characterisation of the findings at [14] as an “insignificant” feature of the reasoning of the Tribunal. That is because the Tribunal found at [14] and [18] that the applicant’s economic circumstances presented as a “significant” incentive for him to remain in Australia. Further, there were eight (as opposed to only one) significant features involved, namely those described in Mr Domingos’ initial outline of submissions.
It is counter intuitive for the Minister to assert that the Tribunal’s finding that the applicant’s economic circumstances in Australia presented as a “significant” incentive for him remain in Australia was an “insignificant” feature of its assessment under clause 500.212(a) of Schedule 2 to the Regulations of whether the applicant “intend[ed] genuinely to stay in Australia temporarily”.
Although the findings at [14] were not the only reason for the Tribunal’s decision, they formed a significant part of intermingled findings which cannot be severed, as the assessment of materiality “is not to be undertaken by reference to the subjective conclusions reached by the decision-maker herself or himself as part of the impugned decision”, otherwise “emphatic adverse findings in a particular decision... would effectively immunise decisions from scrutiny on judicial review”.[122] That the error cannot “be surgically excised from the Tribunal's reasons, leaving the framework surrounding it intact”[123] is especially so where, as here, the Tribunal found that some factors weighed “significant[ly]” in favour of satisfaction of clause 500.212(a).[124]
[122] DQM18 at [115]-[117] (Bromberg and Mortimer JJ)
[123] MKBL at [58] (Jackson J)
[124] For instance, see CB 157 [15]
In summary, the High Court made it clear in MZAPC that an error in the form of legal unreasonableness is material by definition and thus jurisdictional. To suggest that the High Court was only referring to legal unreasonableness in decisions, as opposed to legal unreasonableness in decision-making processes adds an unwarranted gloss to MZAPC, leads to an absurd outcome whereby the gravity of an error is assessed twice and empties the ruling of any real meaning. In any event, even if the further step were to be taken, materiality is established in relation to Ground 2, as the Tribunal’s legal unreasonableness concerned its finding that Mr Domingos’ economic circumstances presented as a “significant” incentive for him to remain in Australia.
Accordingly, upon reflection as to legal unreasonableness, I would concede that the impugned findings at [14] were material notwithstanding what the Tribunal states at [18]. The findings at [18] are a “rolled up” set of findings which do not lend themselves to deconstruction and the allocation of relevant weight. I also have regard to the cautions issued by the Full Federal Court in Chamoun at [70] and PQSM v Minister for Immigration[125] at [71] concerning the assessment of materiality.
[125] [2020] FCAFC 125
CONCLUSION
Mr Domingos has established that the decision of the Tribunal was affected by jurisdictional error. He should receive the relief he seeks. I will make orders in the nature of the constitutional writs of certiorari and mandamus.
I will hear the parties as to costs.
I certify that the preceding one hundred and thirty one (131) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Driver. Associate:
Dated: 26 August 2021
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