EBQ20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 222
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
EBQ20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 222
File number(s): MLG 456 of 2021 Judgment of: JUDGE GIVEN Date of judgment: 31 March 2022 Catchwords: MIGRATION – review of Administrative Appeals Tribunal decision – Tribunal affirmed decision of a delegate to cancel the applicant’s Bridging visa – whether the Tribunal misunderstood the primary and secondary considerations it was required to consider pursuant to Direction No 63 made under s 499 of the Migration Act 1958 (Cth) – whether the Tribunal failed to consider the best interests of children of a family unit which would be affected by the visa cancellation or reasoned irrationality or illogically in that regard – whether the Tribunal failed to comply with ss 359 or 359A of the Migration Act considered – aggregate effect of multiple factual and typographic errors in the Tribunal’s decision considered – whether the Tribunal failed to engage in an active intellectual process concerning possible consequences of the visa cancellation in relation to Australia’s non-refoulement obligations considered – jurisdictional error established – writs issued Legislation: Migration Act 1958 (Cth) ss 5AA, 46A, 48, 116, 127, 189, 198, 347, 359, 359AA, 359A, 424A, 477, 499
Migration Regulations 1994 (Cth)
Cases cited: Ali v Minister for Home Affairs (2020) 278 FCR 627
AYX17 v Minister for Immigration and Border Protection (2018) 262 FCR 317
BZD17 v Minister for Immigration and Border Protection (2018) 263 FCR 292
CCC v Minister for Immigration and Multicultural Affairs [2001] FCA 682
Chen v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 41
CRU18 v Minister for Home Affairs (2020) 277 FCR 493
Davis v Minister for Immigration, Citizenship, Migrant Service and Multicultural Affairs [2021] FCA 1368
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 397 ALR 1
Foroghi v Minister for Immigration and Multicultural Affairs [2001] FCA 1875
Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123
Ibrahim v Minister for Home Affairs (2019) 270 FCR 12
Jian Xin Lui v Minister for Immigration & Multicultural Affairs [2001] FCA 1437
Kelly v Australian Postal Corporation (2015) 67 AAR 359
LGLH v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1529
M257 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FMCA 131
Minister for Home Affairs v Omar (2019) 272 FCR 589
Minister for Immigration and Border Protection v Angkawijaya (2016) 236 FCR 30
Minister for Immigration and Border Protection v MZAIV [2016] FCA 251
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421
Minister for Immigration and Citizenship v SZIAI (2009) 111 ALD 15
Minister for Immigration and Citizenship v SZKTI (2009) 238 CLR 489
Minister for Immigration and Citizenship v SZLSP (2010) 187 FCR 362
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Multicultural Affairs, Re; Ex parte Applicant S20/2002; Appellant S106/2002 v Minister for Immigration and Multicultural Affairs (2003) 73 ALD 1
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Parata (2021) 284 FCR 62
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane (2021) 395 ALR 403
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v FAK19 [2021] FCAFC 153
MZAPC v Minister for Immigration and Border Protection (2021) 390 ALR 590
MZZZW v Minister for Immigration and Border Protection (2015) 234 FCR 154
Overy v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 749
Parata v Minister for Home Affairs [2020] FCCA
S14/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1153
Sami v Minister for Immigration and Citizenship (2013) 139 ALD 1
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347
Spruill v Minister for Immigration and Citizenship (2012) 135 ALD 45
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152
SZLXE v Minister for Immigration and Citizenship [2008] FCA 1312
SZNJQ v Minister for Immigration and Citizenship [2010] FCA 138
SZRBA v Minister for Immigration and Border Protection (2014) 142 ALD 211
SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80
SZTGE v Minister for Immigration and Anor [2014] FCCA 1458
Tickner v Chapman (1995) 57 FCR 451
Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 285 FCR 187
Uelese v Minister for Immigration and Border Protection (2015) 256 CLR 203
WZAQU v Minister for Immigration and Citizenship (2013) 140 ALD 612
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Division: Division 2 General Federal Law Number of paragraphs: 27 Date of last submission/s: 21 February 2022 Date of hearing: 8 November 2021 Place: Sydney Counsel for the Applicant: Mr JR Murphy Solicitor for the Applicant: Victoria Legal Aid Counsel for the Respondents: Mr V Murano Solicitor for the Respondents: Mills Oakley ORDERS
MLG 456 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: EBQ20
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE GIVEN
DATE OF ORDER:
31 MARCH 2022
THE COURT ORDERS THAT:
1.A writ of certiorari shall issue, removing the record of the Administrative Appeals Tribunal decision made on 29 September 2020 into this Court for the purpose of quashing it.
2.A writ of mandamus shall issue, requiring the Administrative Appeals Tribunal to re-determine, according to law, the application for review before it.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE GIVEN:
1 By an application filed with the Court on 16 March 2021, the applicant sought an extension of time under s 477 of the Migration Act 1958 (Cth) (Act) in which to seek judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 29 September 2020. The Tribunal’s decision affirmed a decision of a delegate of the first respondent (delegate) to cancel a Bridging E (class WE) Subclass 050 (Bridging (General)) visa (visa), which had been granted on 24 February 2017.
2 At the commencement of the hearing of this matter, upon the Minister quite properly not opposing the extension on the bases that the grounds were not manifestly hopeless and that there was no prejudice claimed, I ordered that the time for making the application provided by s 477(1) of the Act be extended up to and including 16 March 2021, pursuant to s 477(2) of the Act. Accordingly, the matter proceeded on a final basis.
BACKGROUND
3 The applicant is a 37 year old male citizen of Iran who arrived in Australia by boat on 14 July 2013, travelling without a valid visa (Court Book (CB) 2). The applicant was first granted the visa on 22 August 2013 (after a brief intervening period during which he held a Humanitarian Stay (Temporary)(UJ 449) visa).
4 The visa was re-granted a number of times from 2013 until 2017 as detailed by the Tribunal at [8] of its reasons for decision (CB 81).
5 On 9 August 2019 the applicant was served with an outstanding arrest warrant which had been issued by South Australian Police and charged with an offence of “making child amenable to sexual activity” (CB 82 at [90]). The applicant was refused bail and remanded to Yatala Labour Prison on that same day, with a return date before a Magistrate of 15 August 2019.
6 At or about 10.30am on 13 August 2019, the applicant was personally handed a “Notice of Intention to Consider Cancelling a Visa” (NOICC) at Yatala Labour Prison, receipt of which he acknowledged by applying his signature to it (CB 21). He was invited to comment on the intention to cancel the visa at an interview, which appears to have taken place shortly after his receipt of the NOICC, at the conclusion of which the delegate made a decision to cancel the visa. No error is alleged by the applicant in relation to the short duration between the NOICC being provided to him, the interview/opportunity to comment, and the decision being made.
7 On 18 September 2020 the applicant applied to the Tribunal for review of the delegate’s decision, a copy of which (inter alia) he provided with the application.
8 By reference to s 347(1)(b)(i) of the Act and reg 4.10(1)(b) of the Migration Regulations 1994 (Cth) (Regulations), any application to the Tribunal was required to be filed within 7 days of the date of the decision, namely on or by 20 August 2019. Accordingly, while the application to the Tribunal was seemingly made more than a year out of time, a case note records that the Tribunal made a jurisdictional assessment that the notification given to the applicant was of the kind identified in Parata v Minister for Home Affairs [2020] FCCA 1582 and, accordingly, that it had jurisdiction to undertake the review because time had not started to run for the purposes of s 127(2)(b) of the Act (CB 93).
9 On 24 September 2020 the Tribunal invited the applicant to attend a hearing by audio visual link (due to COVID-19 pandemic measures) and to provide any additional documents or information upon which he may wish to rely, by 27 September 2020.
10 Across 24 and 25 September 2020, the applicant sent the following 3 documents to the Tribunal:
(a)on 24 September 2020 at 11.49pm a document entitled “Sentencing Remarks 2020” (being the sentencing remarks of Judge Deuter of the District Court of South Australia made on 24 June 2020 (sentencing remarks)) under cover of email stating: “Please find attached my sentencing remarks from the Magistrate in regards to my Criminal offence in 2018”;
(b)on 25 September 2020 at 2.07am a written submission from the applicant entitled “AAT Character letter” under cover of email stating: “Please find attached supporting letter from me.” (applicant’s Tribunal submission); and
(c)on 25 September 2020 at 2.09am a document entitled “FCC Application (Sealed)” being an application for judicial review of the Immigration Assessment Authority’s decision in relation to the refusal of the applicant’s Safe Haven Enterprise visa (SHEV), filed with the (then) Federal Circuit Court of Australia on 10 September 2020 under cover of email stating: “Please find attached documents to support my case.”
11 On 28 September 2020 the applicant appeared before the Tribunal (by audio visual link) with the assistance of an interpreter in the Farsi language.
12 On 30 September 2020 the Tribunal notified the applicant of its decision (made on 29 September 2020) to affirm the decision of the delegate to cancel the visa.
TRIBUNAL DECISION
13 After setting out some background and the reasons for having undertaken its hearing function virtually, the Tribunal identified that the Minister had a discretion to cancel the applicant’s visa if satisfied that there were grounds for cancellation as set out (relevantly) in s 116(1)(g) of the Act read together with reg 2.43(1)(p)(ii) of the Regulations. The Tribunal observed that if the decision-maker was satisfied there was a ground for cancellation, they must proceed to consider whether the visa should be cancelled having regard to all relevant circumstances, which may include matters of government policy.
14 The Tribunal set out the applicant’s visa history and observed that he had applied for a SHEV in 2017 which (at least as at the time of the Tribunal’s decision) was the subject of an extant judicial review application.
15 The Tribunal set out the applicant’s responses to the NOICC which included the following reasons as to why his visa ought not be cancelled (errors in original):
13. On 13 August 2019, the delegate cancelled the applicant’s bridging visa. The delegate’s record of decision noted the applicant’s reasons as to why his visa should not be cancelled as follows:
‘I have been living away 1 or 1 ½ years. Opening café in Melbourne with partner.
Pressure of business downturn stress of the business. I’m not that person I’m not that sick. I will do anything I can to prove I am good. I have helped people and what to continue to do good. Planning for the future with my girlfriend’14. In addition, the delegate noted the degree of hardship the applicant claimed that he would suffer if his visa was cancelled as follows:
‘My business would suffer. I have borrowed money from friends to start business. My relationship has built over last 4 years. It would impact my relationship. She has 4 children, 6 but 4 live with her – 17 and youngest is 8 years. I don’t have any of my own children’.
16 Immediately preceding [19] of its reasons, the Tribunal included a bold heading “Consideration of discretion” and observed that it was required to comply with Ministerial Direction No 63 “Bridging E visas — Cancellation under section 116(1)(g) — Regulation 2.43(1)(p) or (q)” made under s 499 of the Act (Direction No 63) by taking into account specified primary and secondary considerations. It then set out the primary and secondary considerations at [21] to [22] (respectively), before stating as follows:
23. The Tribunal considered the primary considerations. It considers that the offence for which the applicant was convicted is serious and notes the view that the prescribed grounds for cancellation at r.2.43(1)(p) and (q) should be applied rigorously. In this case the applicant is not married and has no children of his own. As a result, the Tribunal places no weight on this consideration in the applicant’s favour.
24. In accordance with Direction No 63 the Tribunal has considered the primary and secondary considerations together with other discretionary considerations as follows.
17 Immediately following those paragraphs, the Tribunal set out italicised subheadings for each of the secondary considerations. As will be addressed later, the applicant says these headings and the structure of the Tribunal’s reasons from [19] onwards, are a matter of moment.
18 In relation to the impact of the cancellation on the family unit, the Tribunal stated that the applicant does not have any family in Australia and set out some background circumstances to his arrival in Australia from Iran (at [25] to [27]). The Tribunal made reference to the sentencing remarks which recorded various particulars of the applicant’s relationship status. The Tribunal stated that the applicant “confirmed he has a girlfriend in Melbourne” (at [27]) whom he met in Adelaide but who had later moved with him to Melbourne in 2019 where he commenced a café business with a friend.
19 The Tribunal then stated at [28] (errors in original):
While the Tribunal does not accept that the applicant is in regular contact with his girlfriend as claimed. The Tribunal notes that she has six children and has remained living in Melbourne while he has been in prison. In addition, the Tribunal notes the sentencing remarks by Judge Deuter, District Court of South Australia on 24 June 2020 in which he noted that the applicant’s girlfriend had six children and that the relationship was intermittent. In light of the charges to which the applicant has been found to be guilty and in any absence of any independent evidence to the contrary, the Tribunal does not accept that applicant’s relationship with his girlfriend is ongoing. As such it finds that the applicant will not suffer any hardship as a result of being separated for his girlfriend. Given that his family (save for his sister) continue to live in Iran any cancellation of his visa will not cause any hardship by separating him from his family members. As a result, the Tribunal places no weight in this consideration on the applicant’s favour.
20 In relation to the degree of hardship that may be experienced by the visa holder if the visa were cancelled, the Tribunal placed no weight in the applicant’s favour on the cancellation impacting the applicant’s finances and business, given that the business had been closed and the lease terminated as a result of his arrest and imprisonment (at [29]).
21 The Tribunal observed there was no evidence presented by the applicant in relation to his emotional or psychological condition as a result of the cancellation (at [30]).
22 The Tribunal placed some weight in the applicant’s favour on the fact that he would remain in immigration detention pending the outcome of the judicial review application in relation to his SHEV (at [31]).
23 The Tribunal gave consideration to the circumstances in which the grounds for cancellation arose, namely the applicant’s arrest, guilty plea and subsequent sentencing (at [32] to [33]).
24 In relation to the purpose of the applicant’s travel to, and stay in, Australia and any compelling need to travel or remain, the Tribunal had regard to the applicant having arrived in Australia by boat, being granted a Humanitarian visa, and subsequently applying for the SHEV. However, the Tribunal said that in his evidence the applicant did not provide any specific reason as to why he fled Iran, nor did he particularise any matters pertaining to serious or significant harm on return and so it placed little weight on this consideration (at [34]).
25 The Tribunal acknowledged that there was no evidence that the applicant had breached any other visa conditions during his time in Australia, which weighed in his favour, as did his broad compliance with the Department’s directions (at [35] to [36]).
26 The Tribunal observed having no evidence before it that there was any person in Australia whose visa would or may be cancelled pursuant to s 140 of the Act (at [37]).
27 In relation to the breach of any international obligations which may be occasioned by the cancellation, the Tribunal found that the circumstances of the applicant’s case did not engage Australia’s international obligations and observed that he “does not have any children in Australia whose interests may be affected by the cancellation of his visa” (at [38]) and placed no weight in the applicant’s favour on this consideration.
28 The Tribunal said it had considered the mandatory legal consequences of the cancellation, observing that the effect of the cancellation was that (pending any alternate determination of the judicial review proceedings attending the refusal of his SHEV) the applicant would continue to be detained under s 189 of the Act and potentially thereafter removed pursuant to s 198 of the Act (at [39]). The Tribunal also considered the impact of s 48 of the Act and Public Interest Criterion 4013.
29 In conclusion the Tribunal said that: “having considered the department file, and the applicant’s evidence to the Tribunal it is satisfied that there are no other relevant factors in relation to this case” (at CB [42]). Based on the applicant’s own evidence the Tribunal found he had limited ties to the community and was therefore unlikely to suffer undue hardship by reason of the cancellation. The Tribunal also stated that the applicant failed to identify any well-founded fear of persecution if he returned to Iran and that, having also considered the serious nature of the charge in respect of which the applicant was found guilty, it considered that the visa should be cancelled (at [43]).
30 The Tribunal then found that having regard to all the circumstances, the visa should be cancelled (at [44]).
APPLICATION TO THIS COURT
31 As noted above, the applicant commenced these proceedings by an application for an extension of time filed with the Court on 16 March 2021, which I have granted in light of the Minister having quite properly declined to oppose it. I have also observed that the applicant was out of time in applying to the Tribunal but that because of the effect of the first instance decision in Parata v Minister for Home Affairs [2020] FCCA 1582, the Tribunal found that it did have jurisdiction.
32 The Minister unsuccessfully appealed the aforementioned decision (Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Parata (2021) 284 FCR 62 (Parata)) from which special leave to appeal to the High Court was sought (M28/2021). Accordingly, and for the purposes of these proceedings, the Minister correctly acknowledged that this Court was bound by the Full Federal Court’s decision in Parata, but formally reserved the position that Parata was wrongly decided and sought that I defer any decision in this matter until such time as the High Court heard the application for special leave to appeal from Parata and, thereafter, any subsequent appeal.
33 This request became otiose however because the application for special leave to appeal was refused on 10 December 2021. It was otherwise not in dispute that the Tribunal was correct to find that it had jurisdiction on the basis of Parata (as it then stood), and that the task for this Court is to determine whether that jurisdiction was thereafter exercised correctly.
RELEVANT LEGISLATION
34 Section 116(g) of the Act relevantly provides:
116 Power to cancel
(1) Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:
…
(g) a prescribed ground for cancelling a visa applies to the holder.
35 The prescribed grounds for cancellation are set out in r 2.43(p) and (q) of the Regulations, as follows:
2.43 Grounds for cancellation of visa (Act, s 116)
(1) For the purposes of paragraph 116(1)(g) of the Act (which deals with circumstances in which the Minister may cancel a visa), the grounds prescribed are the following:
…
(p) in the case of the holder of a Subclass 050 (Bridging (General)) visa or a Subclass 051 (Bridging (Protection Visa Applicant)) visa—that the Minister is satisfied that the holder:
(i) has been convicted of an offence against a law of the Commonwealth, a State, a Territory or another country (other than if the conviction resulted in the holder’s last substantive visa being cancelled under paragraph (oa)); or
(ii) has been charged with an offence against a law of the Commonwealth, a State, a Territory or another country; or
(iii) is the subject of a notice (however described) issued by Interpol for the purposes of locating the holder or arresting the holder; or
(iv) is the subject of a notice (however described) issued by Interpol for the purpose of providing either or both of a warning or intelligence that the holder:
(A) has committed an offence against a law of another country; and
(B) is likely to commit a similar offence; or
(v) is the subject of a notice (however described) issued by Interpol for the purpose of providing a warning that the holder is a serious and immediate threat to public safety;
(q) in the case of the holder of a Subclass 050 (Bridging (General)) visa or a Subclass 051 (Bridging (Protection Visa Applicant)) visa—that:
(i) an agency responsible for the regulation of law enforcement or security in Australia has advised the Minister that the holder is under investigation by that agency; and
(ii) the head of that agency has advised the Minister that the holder should not hold a Subclass 050 (Bridging (General)) visa or a Subclass 051 (Bridging (Protection Visa Applicant)) visa;
36 Pursuant to s 499 of the Act, the Minister may give written directions about the exercise of certain powers, and one such direction has been made in respect of the cancellation of a Bridging E visa under s 116(1)(g) and r 2.43(1)(p) and (q), namely Direction No 63. Section 499(2A) provides that “a person or body” must comply with such a direction.
37 Under the heading “5.1 How to exercise the discretion”, Direction No 63 requires that decision-makers take into account each of its prescribed primary and secondary considerations and says that primary considerations should generally be given greater weight that the secondary ones.
38 Clause 5.1(5) of Direction No 63 provides that:
In applying the considerations (both primary and secondary), information and evidence from independent and authoritative sources should be generally given greater weight than information from other sources.
39 The primary considerations are to be found in cl 6(1) of Direction No 63 and are:
a. the Government’s view that the prescribed grounds for cancellation at regulation 2.43(1)(p) and (q) should be applied rigorously in that every instance of non-compliance against these regulations should be considered for cancellation, in accordance with the discretionary cancellation framework; and
b. the best interests of any children under the age of 18 in Australia who would be affected by the cancellation.
GROUNDS OF REVIEW
40 The applicant raises the following 5 grounds of review (particulars omitted):
1. The Administrative Appeals Tribunal (Tribunal) failed to conduct a review as required by the Migration Act 1958 (Cth) (Act) (particularly ss 348(1) and 499(2A) read with Direction No 63) in that the Tribunal:
a. Misunderstood its obligation to consider the best interests of any children under the age of 18 in Australia who would be affected by the cancellation of the Applicant’s visa;
b. Failed to consider the best interests of the Applicant's partner's four children aged between 8 and 17 years old; and/or
c. Failed to make a determination about whether cancellation of the Applicant's visa was, or was not, in the best interests of the Applicant's partner's four children aged between 8 and 17 years old.
2. The Tribunal failed to conduct a review as required by the Act (particularly ss 348(1) and 499(2A) read with Direction No 63) in that, in purporting to perform its duty to consider the impact of a decision to cancel the Applicant’s visa on the family unit the Tribunal reasoned in a way that was illogical, irrational, without evidentiary foundation or otherwise unreasonable.
3. The Tribunal failed to conduct a review as required by the Act (particularly s 348(1)) in relying on information that ‘the applicant has not applied for any permeant [sic] visa rather making application for visas with limited time periods’ (the information) in circumstances where:
a. It was not open for the Applicant to apply for any permanent visas, him being an ‘unauthorised maritime arrival’ within the meaning of s 5AA of the Act and thus being statutorily barred from applying for any visa under s 46A except those for which the Minister ‘lifted the bar’ – thus the Tribunal’s reasoning was illogical, irrational or otherwise unreasonable; and/or
b. The Tribunal failed to provide clear particulars of the information to the Applicant, ensure the Applicant understood the relevance of the information to the review, and invite the Applicant to comment on or respond to the information – thus the Tribunal failed to comply with s 359A(1) of the Act.
4. The Tribunal failed to conduct a review as required by the Act (particularly s 348(1)) by unreasonably failing to exercise its power in s 359 to get information it considers relevant, namely, a psychological report that the Applicant explicitly sought to rely on (but inadvertently failed to provide to the Tribunal) and that was referred to at multiple places in the material before the Tribunal.
5. The Tribunal failed to conduct a review as required by the Act (particularly ss 348(1) and 499(2A) read with Direction No 63) in that, in purporting to perform its duty to consider the possible consequences of cancellation of the Applicant’s visa, the Tribunal failed to give genuine consideration, or otherwise consider, evidence, submissions and clearly articulated claims relating to international non-refoulement obligations.
41 At the hearing of the matter, in addition to the Court Book which was tendered and marked Exhibit “1R”, the applicant read the Affidavit of Tessa McGregor Maybery affirmed on 30 September 2021 (Maybery Affidavit) which annexes a copy of the transcript of the Tribunal hearing (Transcript). The Maybery Affidavit was read without objection.
42 For reasons which will become clear, I have addressed ground 2 first.
Additional issue
43 The Tribunal’s reasons for decision exhibit a significant number of spelling, grammatical and other errors and the first respondent has also conceded that in relation to 2 grounds of review, a number of the Tribunal’s factual findings were incorrect.
44 The parties were granted leave at the conclusion of the hearing to provide supplementary written submissions inter alia in relation to the general quality of the Tribunal’s decision and whether these errors individually, or in aggregate, signified a failure in the discharge of the Tribunal’s statutory task such as to constitute a jurisdictional error. Accordingly I will consider that issue also.
GROUND 2
45 Ground 2 is directed towards the Tribunal’s treatment of one of the secondary considerations, being the impact of a decision to cancel the visa on the family unit. While pertaining to a secondary consideration and alleging a separate jurisdictional error, there is a significant intersection between this ground and ground 1. By ground 2 the applicant alleges that the Tribunal erred in its finding at the conclusion of [28] of its reasons which is said to be illogical, irrational, without evidentiary foundation, or otherwise unreasonable.
46 Ground 1 alleges a failure to consider a primary consideration, namely the best interests of a relevant child/children, being the children of the applicant’s girlfriend, because the Tribunal is alleged to have misunderstood the consideration to pertain only to biological children of the applicant. In response to ground 1 the first respondent says that it was not that the Tribunal failed to consider those children’s interests because they were not biologically the applicant’s children, but rather that I should infer the Tribunal found the children of the applicant’s girlfriend would not relevantly be affected by the cancellation because it did not accept the relationship was ongoing, relying expressly on the Tribunal’s finding in [28].
47 Accordingly, if I were to find that the Tribunal erred in its finding at [28], the foundation of the first respondent’s rebuttal to ground 1 may consequently be affected.
48 In essence the Tribunal found that in the absence of independent evidence to the contrary (which will be dealt with below), the applicant’s relationship with his girlfriend was not ongoing because of the nature of the charge in respect of which the applicant had been found guilty.
49 The applicant says that in making this finding, the Tribunal reasoned in a way that was illogical, irrational, without evidentiary foundation or otherwise unreasonable because this is not just a case where the Tribunal expressed a conclusion in the absence of evidence, rather it was a conclusion that went against the material available which included that:
(a)the applicant and his girlfriend had been living together for 5 years as at the time of the Tribunal hearing (T11.15[1]);
[1] The Transcript annexed to the Maybery Affidavit has been paginated by reference to the Affidavit pages. The references in this judgment are to the actual Transcript page and not the Affidavit page.
(b)they had met in Adelaide and moved to Melbourne, where she remained and continued working in the applicant’s café business even after his arrest, albeit the business ultimately closed (T11.17 to T11.28);
(c)the applicant and his girlfriend had been planning many things together (T11.45 to T12.15);
(d)the applicant’s priority once out of gaol was to do things to make his girlfriend happy so as to make up for the disruption caused to her by his imprisonment, during which time she helped him every day in the café and did “everything for me” (T12.14 to T12.18);
(e)the applicant had been a support to his girlfriend including when (approximately 2-3 years into their relationship) she was diagnosed with cancer and had surgery as a result (T12.19 to T12.29);
(f)the sentencing of the applicant took place about 10 months after the applicant was arrested, so any of the information which formed part of the sentencing remarks was almost a year after the charge came to light and as part of the material for sentencing the applicant’s girlfriend had provided a character reference for him;
(g)despite the aforementioned effluxion of time, the applicant’s evidence to the Tribunal was that the relationship was ongoing, even though the girlfriend had remained in Melbourne (being the place to which she had moved with the applicant);
(h)as at the time of the Tribunal hearing, the applicant and his girlfriend were said to “speak every day” (T12.41).
(i)the sentencing remarks noted that the applicant had previously had a long term relationship in Iran but that after coming to Australia he discovered that his partner in Iran had since married another man and that:
This led you to developing a relationship with an Australian woman who has six children. You have been in an off-and-on relationship with her for around four years. You view that relationship as supportive and you are eager to maintain it in the long-term, including supporting your partner’s six children. You told [the psychologist] that being away from the children and your partner since your arrest has been very difficult. You report that it was during one of the periods that you were separated from your partner that the offending occurred due to you being lonely; and
(j)the sentencing Judge was provided with character references including one from the applicant’s girlfriend and her Honour went on to say:
You are described as a person who has always been willing to provide help when needed. [Your partner] describes how you are a great father figure to her six children and how you supported her and her family through her major surgery taking care of the household. She says that you love the children as your own and they have struggled since you have been in prison. She regards you as trustworthy, reliable and decent and as I say, I take those descriptions of your character into account in sentencing you.
50 The first respondent says that this ground must be rejected because the applicant is seeking to challenge the weight given to evidence, next that the finding in question did not involve the requisite “extreme” illogicality necessary to constitute a jurisdictional error and also that the Tribunal’s findings were “open based on probative evidence before it, notwithstanding whether reasonable minds may have been able to draw different conclusions from the same evidence”.
51 However, having regard to the evidence which was before the Tribunal about the applicant’s relationship with his girlfriend (with which [28] of the Tribunal decision is at odds), it should be observed that there was no evidence before the Tribunal to suggest that the girlfriend would (in the words of esteemed country singer Tammy Wynette) do anything other than “stand by her man”. That was so whether by reference to the nature of the charge, or at all. In that sense, the Tribunal’s conclusion that simply because the charge pertained to making a child amenable to sexual activity his girlfriend would no longer continue the relationship, does not appear to have any basis other than the Tribunal’s own personal values and/or views.
52 At hearing I raised with the parties the case of Minister for Immigration and Border Protection v Angkawijaya (2016) 236 FCR 303, in which the Full Federal Court dismissed an appeal from a decision in which the primary Judge found an error constituted by the Tribunal having imposed its own value judgment in applying the relevant legislative provisions, in particular, by finding that the couple did not have a genuine mutual commitment to shared life together unless “romantic love” was present (at [6] per Kenny and Griffiths JJ).
53 On appeal, the Full Federal Court reasoned that the error of the Tribunal was not to have imposed a value judgment, but rather to have misconstrued and misapplied the relevant legislation by proceeding on the basis that for a partner visa to be granted it had to be satisfied that there was love and affection in a relationship at the time of its decision. The instant case differs from Angkawijaya (and many of the cases which subsequently considered Angkawijaya) because while the finding in question pertains to the existence or otherwise of a relationship, it does not arise in the context of a partner visa. As such, the present Tribunal was not assessing the relationship of the applicant and his girlfriend by reference to those particular visa criteria and statutory definitions. Rather, it was making factual findings about a state of affairs which did not have their basis in that particular legislative language, even accepting that the secondary considerations included assessment of the impact on the ‘family unit’ (which is a term defined by reg 1.12 of the Regulations).
54 At [61] of Angkawijaya, Kenny and Griffiths JJ cited the decision in Jian Xin Lui v Minister for Immigration & Multicultural Affairs [2001] FCA 1437 at [23] where Conti J observed that:
…In determining the propriety of one person’s commitment to a marriage, the very nature of the task requires an evaluation, based on human experience, understanding and perception of the available spectrum of potentially relevant circumstances of each particular case…
55 In the time since Lui and Angkawijaya were determined it has been accepted that as part of an assessment process, a decision-maker can make certain assumptions or draw on their own common sense, a reasonable appreciation of human experience and personal or specialised knowledge: see Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 397 ALR 1 at [39] per Allsop CJ, Besanko and O’Callaghan JJ (citing Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane (2021) 395 ALR 403 at [17] to [21]).
56 In Viane (supra) at [17], the High Court observed (in the context of the Minister’s exercise of the power conferred by s 501CA(4) of the Act) that:
…in giving reasons makes a finding of fact, the Minister must do so based on some evidence or other supporting material, rather than no evidence or no material, unless the finding is made in accordance with the Minister’s personal or specialised knowledge or by reference to that which is commonly known.By “no evidence” this has traditionally meant “not a skerrick of evidence: Australian Retailers Association v Reserve Bank of Australia (2005) 148 FCR 446; 228 ALR 28; [2005] FCA 1707 at [575] per Weinberg J, quoting Aronson, Dyer and Groves, Judicial Review of Administrative Action, 3rd ed, 2004, p 239.
57 Jurisdictional error will be established where a decision is irrational, illogical and not based on findings or inferences of fact supported by logical grounds and can be demonstrated by “findings or reasoning along the way to reaching a conclusion by the decision-maker that are illogical or irrational” (emphasis in original): see BZD17 v Minister for Immigration and Border Protection (2018) 263 FCR 292 at [34] citing Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [132] per Crennan and Bell JJ. Relevant error will be exist if the finding of fact “was simply not open on the evidence or … there is no logical connection between the evidence and the inferences or conclusions drawn”: SZMDS (supra) at [135] per Crennan and Bell JJ).
58 Turning to the Tribunal’s reasoning process, if by the use of the expression “in the absence of any independent evidence to the contrary” in [28], the Tribunal was making some reference to the guidelines in cl 5.1(5) of Direction No 63, and seeking to suggest that independent evidence (presumably in the case of a relationship, meaning from someone other than the parties to that relationship) was the only kind of evidence that could be considered, then in my view it was incorrect.
59 Clause 5.1(5) of Direction No 63 did not absolve the Tribunal from considering the evidence before it simply because there was no independent source to corroborate it and, even if there had been independent evidence available, cl 5.1(5) only goes so far as to say that it should “generally” be given greater weight than information from other sources.
60 Further, even in the absence of third party evidence about whether the relationship was ongoing or otherwise, there still remained the applicant’s own evidence given at the Tribunal hearing and the character reference from his girlfriend as extracted in the sentencing remarks.
61 So while the Tribunal may have felt that independent evidence would be the best evidence to have, and if so possessed it may have given greater weight to that evidence than to the applicant’s own evidence, it is difficult to see why in the absence of third party evidence the Tribunal’s own assumptions would also trump the applicant’s evidence, which appears to be what occurred in this case. That is because, what remains beyond the reference to the lack of independent evidence, is a bare finding of the Tribunal that the relationship was not ongoing, simply by reason of the nature of the offences for which the applicant had been charged and later found guilty.
62 There is nothing before me to indicate that the Tribunal had any personal or specialised knowledge upon which to make such a finding. If the Tribunal member was seeking to bring to bear his own knowledge of the human experience to assess the views of the applicant’s girlfriend, he did so entirely without considering her character reference given to the sentencing Judge where (with knowledge of the nature of the offending and almost a year after the applicant was first charged) she described the applicant as “trustworthy, reliable and decent”. These matters were, as Conti J said in Lui (supra), part of the available spectrum of relevant circumstances in the present case.
63 In Angkawijaya his Honour, Chief Justice Allsop, observed (at [3]) that to love and be loved is the foundation of many, but not all, human relationships. In the instant matter, while the Tribunal may not have possessed the bandwidth to entertain the prospect that one person could remain in a relationship with another if they were found guilty of the offence in question, given the vast spectrum of reasons why people form (and remain in) relationships, it was not open to the Tribunal to conclude that the relationship was not ongoing simply because of the charge and/or conviction.
64 It is not for this Court to assess for itself whether the relationship was in fact ongoing. However, objectively there was no material before the Tribunal to say it was not: see Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at [48] per Bell, Gageler and Keane JJ.
65 By concluding against the evidence that the relationship was not ongoing for the reasons that it did, the Tribunal acted in a way which meets the requisite level of extreme illogicality insofar as there was no logical connection between the conclusion that the nature of the charge would necessarily mean that the relationship did not continue, in circumstances where all of the evidence before it was that the relationship had in fact endured for almost a year since the charge was laid, and that the applicant’s girlfriend continued to consider the applicant to be “trustworthy, reliable and decent”.
66 Similarly the bare finding in the first sentence of [28] of the Tribunal decision that the applicant is not in regular contact with his girlfriend was without basis by reference to the uncontested evidence that they spoke every day.
67 Accordingly I am of the view that the Tribunal erred.
68 The applicant says that this error is material. Accordingly the onus is on him to establish as much: see MZAPC v Minister for Immigration and Border Protection (2021) 390 ALR 590 at [60] per Kiefel CJ, Gageler, Keane and Gleeson JJ.
69 Applying a counterfactual analysis, I find as a matter of objective possibility that had the Tribunal not so foreclosed the possibility of the relationship being on foot, there was a realistic possibility that in considering the impact on the family unit, a different decision could have been made in relation to that secondary consideration itself, and thereafter potentially overall: see Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 at [30] per Kiefel CJ, Gageler and Keane JJ and SZMTA (supra) at [45] per Bell, Gageler and Keane JJ.
70 The Tribunal gave the consideration of impact on the family unit no weight in the applicant’s favour. Had the Tribunal considered that, consistent with the evidence, the relationship was ongoing, this could realistically have weighed this secondary consideration as being in favour of not cancelling the visa (noting that the delegate had given this consideration some favourable weight).
71 The weighting itself is not for this Court to speculate upon nor, when there are multiple considerations for a decision-maker to weigh, is it possible to hypothesise as to what overall conclusion the Tribunal may then have reached.
72 It is sufficient for the purposes of the materiality assessment to conclude that had findings available on the evidence been made, this could realistically have resulted in a different decision, and I so find.
73 For the foregoing reasons I am of the view that concluding as it did that the relationship of the applicant and his girlfriend was not ongoing, caused the Tribunal to fail to consider the impact on the applicant’s family unit as it was required to do, which breached an inviolable limitation of the conduct of the review.
74 Accordingly I find that ground 2 is made out and the decision of the Tribunal is affected by jurisdictional error.
GROUND 1
75 By this ground the applicant contends that the Tribunal erred by misunderstanding the second of the primary considerations by which it was required to make a determination about whether the cancellation was in the best interests of any children under 18 who would be affected by the decision. The applicant says the children of his girlfriend were such children.
76 It is accepted by both parties that a failure to address the best interests of a relevant child (being a child who would be affected by the decision) and to make a determination, is a failure to conduct the review required by the Act and, subject to the question of materiality, constitutes jurisdictional error: see Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 285 FCR 187 at [179] per O’Bryan J, Katzmann J agreeing at [1] in turn citing Uelese v Minister for Immigration and Border Protection (2015) 256 CLR 203 at [68] per French CJ, Kiefel, Bell and Keane JJ and YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 at [39] per Mortimer J.
77 Given that the Tribunal’s decision is silent as to both the consideration and the determination of the best interests of any children, unsurprisingly there is also no dispute between the parties that the Tribunal did not make a determination about any children in this case. Rather, the issues is whether there were relevant children for the purposes of Direction No 63, such that the absence of both consideration and a determination was in error.
78 While accepting the proposition in paragraph [76], the first respondent says that the proper inference to be drawn in the present case is that the Tribunal:
(a)found that the children of the applicant’s girlfriend would not be affected by the decision, thereby rendering them as children who were not relevant for the purposes of Direction No 63; and
(b)therefore made no determination about their interests for that reason.
79 Having regard to the Tribunal’s reasons there seem only two possible discernible bases from which it could conceivably be concluded the children were not relevant. Namely, either:
(a)the children were not biologically the applicant’s children; or
(b)the relationship with the girlfriend was not ongoing.
80 The applicant alleges that it is the former rationale (which is how this ground is cast), and the first respondent submits that it is the latter.
81 In support of his construction, the applicant says that the entirety of the Tribunal’s consideration of the best interests of the children is to be found in [23] of its decision. It is further advanced that that the structure of the decision is significant to this issue. In particular, it is contended that the use of the words “as a result” make plain that the Tribunal used the question of whether the children were biologically the applicant’s children as being the determinative factor of whether they were children who would be affected by the cancellation, and therefore whether there were any children in respect of whom it was required to make a determination.
82 The applicant says that in the alternative, the Tribunal failed to consider whether the cancellation was in the best interests of each of the four children of his partner individually or at all.
83 The applicant acknowledges that there was not “a great deal of evidence” before the Tribunal as to how the cancellation might affect the children, and that it may be accepted that he did not particularly emphasise the children’s interests as a factor at the Tribunal hearing. However, the applicant submits that the scarcity of the evidence did not excuse the Tribunal from assessing the primary consideration.
84 The applicant says that irrespective of how the erroneous treatment of this primary consideration is cast, it must be found to be material.
85 In support of the first respondent’s construction it is submitted that:
(a)the Tribunal did not misunderstand that Direction No 63 only applied to the best interests of the applicant’s biological children because it expressly said so (citing the Tribunal’s reasons at [21(b)]);
(b)the Tribunal did consider evidence regarding the children of the applicant’s “claimed girlfriend” by saying that it had read the sentencing remarks which make reference to her having six children;
(c)while the Tribunal could have expressed itself more clearly, in substance it found that the applicant’s “claimed girlfriend” would not want to continue any relationship with him because of the nature of the conviction (relying on the Tribunal’s reasons at [28]);
(d)therefore while the Tribunal was aware that the consideration was more broad, it chose to limit its consideration to only those children “who would be affected by the cancellation” and the Court should therefore draw an inference that the children of the applicant’s girlfriend were not children who would relevantly be affected by the cancellation, such that it made no determination in respect of them; and
(e)in relation to materiality, there was no realistic possibility that the Tribunal could have reached a different outcome, because of the scant evidence before it which pertained to the children and their relationship with the applicant. The first respondent says that this evidence was limited to the applicant having been a father figure to the children, that he had supported the girlfriend and her family and that the children had struggled since the applicant had been in prison. In this regard the first respondent says that the Tribunal was “not under a general duty to inquire about matters not raised” and that the material before the Tribunal “was limited to two sentences in the sentencing remarks”, referring to CB 68.
86 As acknowledged by the applicant, there was limited evidence before the Tribunal in relation to the children in question and the applicant did not especially seek to highlight their interests in his evidence given at the Tribunal hearing. This is unsurprising given that the Transcript of the Tribunal hearing reveals that none of its questions at hearing sought to engage the applicant on the topic of the impact upon the children or their interests if the visa was to be cancelled.
87 In making that observation, and in reviewing the Transcript, I have proceeded with caution having regard to authorities to the effect that a transcript of the Tribunal hearing cannot be employed to “supplement and expand the Tribunal’s stated reasons for exercising the power in the way it did”: see AYX17 v Minister for Immigration and Border Protection (2018) 262 FCR 317 at [58] per Tracey, Mortimer and Charlesworth JJ (citing in turn Minister for Immigration and Border Protection v MZAIV [2016] FCA 251 per Mortimer J at [33] and Kelly v Australian Postal Corporation (2015) 67 AAR 359 per Griffiths J at [51] to [53]); see also Minister for Immigration and Citizenship v SZLSP (2010) 187 FCR 362 at [95] per Rares J.
88 However, leaving aside the fact that the first respondent has in certain cases said that a transcript can be consulted to the effect it may contextualise ambiguous reasons (see MZAIV (supra) at [32] to [33]), in my view the caution urged in those decisions is in a slightly different vein.
89 That is because those cases generally deal with examining a transcript with a view to finding that something said by a member at hearing differ in some way from how a finding is ultimately expressed, or should be read into the findings and reasons. In the instant case, I reviewed the Transcript in a different context, namely to consider how (or whether at all) the Tribunal sought to discuss the evidence and the relevant consideration/s with the applicant.
90 This distinction was recognised in WZAQU v Minister for Immigration and Citizenship (2013) 140 ALD 612 where in obiter at [30] Flick J stated that:
… A transcript of proceedings may unquestionably be relied upon to prove that claims were in fact advanced and to prove the nature and ambit of those claims. Reference to the transcript of November 2011 could thus be made to give content to the claims advanced by the Appellant, although the nature of those claims... But considerable reservation is expressed as to whether reference to the transcript may also be made for the purpose of construing what was intended to be conveyed by para [98]. It has been concluded by the High Court that the transcript of a proceeding forms no part of the “record” when seeking certiorari to correct error of law on the face of the record: Craig v South Australia (1995) 184 CLR 163 at 180–181 per Brennan, Deane, Toohey, Gaudron and McHugh JJ. Whether the same considerations which led to that conclusion are apposite to considering whether a transcript can be relied upon to construe reasons for an administrative decision can also be left unresolved. But that which is common to both is a concern as to whether recourse to a transcript would only encourage parties seeking to impugn or support (or supplement) a statement of reasons by scouring the transcript with a view to minutely discerning differences between the transcript and reasons. To do so may only encourage impermissible reliance upon thoughts or queries raised during the course of a hearing which are only later abandoned at that stage when reasons are being prepared. Even if recourse is made to the transcript in the present proceeding, that transcript provides no assistance — not surprisingly — in construing what was intended to be conveyed by para [98].
91 Reviewing a transcript to discern:
(a)whether an applicant did in fact raise a claim at hearing (such as in WZAQU);
(b)whether a Tribunal properly complied with a procedure required of it (such as engaging the s 359AA/424AA mechanism: see SZNJQ v Minister for Immigration and Citizenship [2010] FCA 138 per Rares J at [38] and SZLXE v Minister for Immigration and Citizenship [2008] FCA 1312 at [19];
(c)to gain insight into whether or not some aspect of the Tribunal hearing or the member’s conduct gives rise to an apprehension of bias: see Chen v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 41 and SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80; or
(d)as in this case, ascertaining what, if any, evidence was given by an applicant and whether the Tribunal engaged with the applicant at hearing about evidence which might inform mandatory considerations it was required to address;
fall outside of the scope of “scouring” the words used by a Tribunal at hearing to seek to read them into its reasons for decision.
92 With that in mind, a review of the Transcript in this matter has some utility. That is because it reveals that while the Tribunal asked the applicant on several occasions to detail what would happen to him, and what hardship he would suffer, if the visa were cancelled (see T10.41, T11.43 and T14.18) at no time did it seek information about the hardship to anyone else, including children (relevant to the primary consideration) or the family unit (relevant to the secondary consideration but the response to which might potentially have overlapped with the interests of the children).
93 The exchange between the Tribunal and the applicant at T11 is the closest the Tribunal came to discussing children with the applicant:
MEMBER: Where's your partner now?
WITNESS: She's in Melbourne at the moment.
MEMBER: Is she from Adelaide originally?
WITNESS: Yes, we moved together to Melbourne.
MEMBER: What's she been doing since you've been in gaol?
WITNESS: She tried to run the shop, the coffee shop we had and then after that was done, she's been at home since doing (indistinct).
MEMBER: Do you have any kids?
WITNESS: (Indistinct)
MEMBER: Right. Do you have any children?
WITNESS: Me? No.
MEMBER: All right. So if it is cancelled, what's the possible consequences do you think?
WITNESS: Pardon me?
MEMBER: What do you think will happen to you if the visa is cancelled?
94 From this exchange it seems that the nature of the Tribunal’s enquiry regarding children was to the question of biology only and, once the applicant confirmed he had no biological children, the topic ended.
95 As his Honour French CJ said in Uelese (supra) at [64] to [67]:
64. Whether or not the appellant sought to make the interests of those children a positive aspect of his case, the tribunal was obliged by s 499 of the Act and the terms of Direction 55 to take into account the interests of any minor children of which it was aware in determining his application for review. By virtue of s 499 and Direction 55, one of the primary considerations for the tribunal concerned the interests of children who were not themselves represented in the proceedings before the tribunal. The requirement of cl 9.3 of Direction 55 to consider the best interests of minor children in Australia affected by the decision is imposed on decision-makers in terms which are not dependent on whether an applicant for review argues that those interests are relevant as part of his or her “case”.
65. An aspect of the minister’s argument, developed by reference to the view that the tribunal’s functions were confined to a determination of issues relevant to the “case” presented by the appellant, was the contention that, if the tribunal did misconstrue s 500(6H) by not considering the information adduced in cross-examination, that error did not affect the outcome of the review. The minister argued that the paucity of evidence about the appellant’s two youngest children in consequence of the way the appellant’s case was presented meant that the tribunal could not be satisfied one way or the other as to where the best interests of the appellant’s children lay. This aspect of the minister’s argument must also be rejected.
66. It is apparent that the paucity of evidence referred to in the last sentence of the passage from the reasons of the tribunal cited above was not due to the unavailability of material evidence. The tribunal not only declined to act upon the information which was put before it by Ms Fatai, but it also failed to make even the most cursory inquiry to follow up on this information. This is not a case like Paerau v Minister for Immigration and Border Protection on which the minister sought to rely; here, the paucity of evidence was a consequence of the view taken by the tribunal of the preclusory effect of s 500(6H).
67. It is not necessary here to seek to chart the boundaries of the tribunal’s obligation to inquire after the best interests of the children of an applicant for review. There may be cases, hopefully rare, where the evidence presented by the parties does not alert the tribunal that minor children in Australia may be affected by the decision. There may also be cases where the evidence is such that the only determination which can be made in obedience to cl 9.3(1) of Direction 55 is that cancellation is neutral so far as the best interests of any minor child are concerned. In this regard, it is to be noted that cl 9.3(1) requires a “determination about whether cancellation is, or is not, in the best interests of the child” (emphasis added). Sometimes the best decision “about” whether cancellation is, or is not, in the best interests of the child may be that it is neither.
96 I agree with the submissions of the applicant that the fact that the children were not the applicant’s own children, or that the applicant did not seek to advance their interests for consideration did not then release the Tribunal from consideration of them. This is not one of the rare cases referred to in Uelese (cited with approval in Tohi) in which the evidence did not alert the Tribunal to the existence of the children. In the course of the exchange which is extracted above at [93]) there would have been nothing arduous about the Tribunal pursuing a basic line of inquiry to follow up the information by asking several questions of the applicant in relation to the children of the girlfriend and any impact that cancellation of the visa may have upon them, instead of focussing only on the question of their parentage and the impact of the visa cancellation upon the applicant personally.
97 There was sufficient material before the Tribunal to have placed the existence of the children squarely within its sights such that it needed to determine whether they were children who would be affected by the decision and, if so, assess their best interests as part of the primary consideration as to whether the applicant’s visa should be cancelled.
98 Next, the parties each made submissions as to the structure of the Tribunal’s reasons in relation to whether the reasoning of the Tribunal can be said to have misunderstood that whether the children were biologically the applicant’s children was operative to whether they were children who would be affected by the decision.
99 As has already been observed, the Tribunal set out the text of the relevant considerations, at [19] to [22] of its reasons under a heading “Consideration of discretion”.
100 At [24] the Tribunal stated:
In accordance with Direction No 63 the Tribunal has considered the primary and secondary considerations together with other discretionary considerations as follows.
101 From [25] to [41] the Tribunal addressed each of the secondary considerations under separate italicised sub-headings. The applicant says therefore that the Tribunal should be taken to have dealt with the primary considerations at [23] to [24] and thereafter to have moved on to its assessment of the secondary considerations.
102 In Minister for Immigration and Multicultural Affairs, Re; Ex parte Applicant S20/2002; Appellant S106/2002 v Minister for Immigration and Multicultural Affairs (2003) 73 ALD 1 Gleeson CJ said at [14]:
Decision-makers commonly express their reasons sequentially; but that does not mean that they decide each factual issue in isolation from the others. Ordinarily they review the whole of the evidence, and consider all issues of fact, before they write anything. Expression of conclusions in a certain sequence does not indicate a failure to consider the evidence as a whole…
103 While I accept that a sequential reasoning process is not requisite, the fact that the Tribunal chose to explicitly adopt a sequential reasoning structure in addressing the secondary considerations does support the suggestion of the applicant that by the point at which the Tribunal reached paragraph [25], it had completed its assessment of the primary considerations.
104 Further, the applicant says that the reading of the Tribunal’s reasons contended for by the first respondent does violence to the Tribunal’s chosen structure by seeking to import back up into paragraph [23] a discussion of a secondary consideration (the impact on the family unit) from paragraphs [25] to [28].
105 The construction of the reasons advanced by the first respondent does seem to minimise the actual words chosen by the Tribunal. By the penultimate sentence of paragraph [23] the Tribunal says the applicant has no children of his own. This is followed immediately by commencement of the final sentence with the words “As a result…”. The applicant says that on an ordinary use of those words, the penultimate sentence stating that the applicant is not married and has no children of his own is the proposition which leads inexorably to the conclusion that no weight should be placed on that consideration in the applicant’s favour. I agree.
106 As noted above at [93] in the only exchange in the hearing which the Tribunal appears to have had with the applicant which intersected with the topic of children, the Tribunal asked him whether he had his own children and then pivoted immediately to asking only about the impact to the applicant himself. The absence of any other inquiry throughout the hearing in relation to the children of the girlfriend lends credence to the construction of the Tribunal’s reasons contended for by the applicant that the biological parentage of the children was somehow a definitive factor in whether any children’s interests fell for consideration. At least in the context of the Transcript it seems to have brought discussion of children to an abrupt halt.
107 To the extent the first respondent submits that it is clear the Tribunal did not misunderstand the relevant primary consideration as being so narrow because it said so (referring to [21(b)]), I do not accept that the Tribunal simply setting out the text of a relevant consideration verbatim automatically means it was properly understood and construed, much less properly considered, especially when one has regard to the manner in which the findings were then actually expressed.
108 Similarly, by saying that the Tribunal considered evidence regarding the children of the applicant’s claimed girlfriend (by saying that it had read the sentencing remarks which make reference to her having six children), lends only marginal support to the proposition that the Tribunal understood the consideration and went on to assess it. Making note of evidence which referred to the children is different from considering that evidence, further from considering their best interests and even further from making an actual determination in regards to them and how their best interests weigh in relation to whether to cancel the applicant’s visa.
109 Against the evidence about the nature of the applicant’s relationship with his girlfriend (their mother) and the children over a significant period of time, and by virtue of the material set out in the sentencing remarks including that he loved the children as his own and they had struggled without him while he was in prison, it was clear the applicant had been in the lives of these children. The fact he may not have been their biological father did not, in and of itself, disqualify them from being children who would be affected by the decision.
110 On a fair reading of the Tribunal’s entire reasons for decision, including by reference to their structure and the nature of the findings in total, I find that the Tribunal did misdirect itself by finding that the fact the applicant had no biological children of his own was determinative of whether those children would be children who would be affected by the decision, for the purposes of the primary considerations of Direction No 63.
111 If I were wrong in concluding that the Tribunal considered biology to have been determinative in that regard and, rather as the first respondent contends, it was instead the fact the relationship between the children’s mother and the applicant was found not to be ongoing which caused the Tribunal to disregard the children as being relevantly affected by the decision, then for the reasons given in relation to ground 2, I would find that to be in error also.
112 Proceeding without consideration and determination about whether the visa cancellation was in the children’s best interests in this matter and having no proper basis on which to disregard them, the failure to consider and determine was failure to complete the exercise of jurisdiction: see Spruill v Minister for Immigration and Citizenship (2012) 135 ALD 45 at [18] to [19] per Robertson J.
113 In light of the above findings, it is not necessary to consider the applicant’s alternate sub-grounds 1(b) and (c).
114 The first respondent says that even if I found error in relation to ground 1, there was no realistic possibility that the Tribunal could have reached a different outcome if it had not failed to make a determination about the best interests of the girlfriend’s children because of the scant evidence before it, that there was no duty to inquire about matters not raised, and that the material before the Tribunal “was limited to two sentences in the sentencing remarks” (referring to CB 68).
115 In contrast, Counsel for the applicant took me to various parts of the Court Book to demonstrate that the evidence before the Tribunal was greater than suggested by the first respondent, and includes:
(a)an answer in relation to a question asked by the delegate as to the degree of hardship which may be caused to the applicant, his family members or others and where applicable the best interests of a child in Australia under 18 years (errors in original): “My relationship has built over last 4 yrs. It would impact my relationship. She has children 6 but 4 live (with) her, 17 and youngest is 8 yrs. I dont have any children of my own.” (CB 33);
(b)an adjacent handwritten note at the bottom of CB 33 (presumably of the delegate) with an arrow which points back to the answer referred to above which includes reference to the children, by which the delegate states: “I accept that some form of hardship would be applicable therefore I add some weight in favour of not cancelling visa”;
(c)that within the sentencing remarks, there were two separate parts which dealt with the children (CB 67 and CB 68), and not merely two sentences as alleged by the first respondent; and
(d)the Transcript at T11.09 to T12.45 refers to aspects of the relationship and while not referring specifically to the children of the applicant’s partner, is said to cast light on the applicant’s relationship with them.
116 The applicant says that given the evidence before it and in light of the important function that the primary consideration of the best interests of minor children plays in giving effect to Australia’s international treaty obligations, the Tribunal’s proper consideration was a matter clearly capable of weighing powerfully in the applicant’s favour, if it were properly considered. The applicant says that this could realistically have made a difference in the outcome.
117 The first respondent’s precise submission is that the Tribunal was required to assess the best interests of the children based on the evidence and submissions before it and is not under a general duty to inquire about matters not raised, citing Tohi (supra) at [179] – [181] and the cases cited therein. To say that an error is not material because there was scant evidence in favour of a possible finding and the Tribunal is not subject to a duty to inquire, is a bold submission when the consideration before the decision-maker was evaluative, and yet the decision-maker has not properly considered even the material already before them.
118 To the extent the first respondent relies on Tohi, it can be accepted that nothing in that case nor Uelese has the effect of extending the principles about the Tribunal’s duty to inquire in situations where the best interests of a child fall for consideration. Rather, the Full Federal Court in Tohi reiterated the principles established in Minister for Immigration and Citizenship v SZIAI (2009) 111 ALD 15, as well as relying on a decision of the Full Federal Court in Sami v Minister for Immigration and Citizenship (2013) 139 ALD 1.
119 In Sami, the principle from SZIAI was applied to a situation whereby the complaint concerned the weight given to the evidence of the children’s mother. The Tribunal in that case did not fail to consider and make a determination in relation to the children. In fact, it found that it would be in the best interests of the children for the appellant to remain in Australia but went on to say that it was not aware whether the appellant’s removal from Australia would be likely to have a significant adverse effect on the children and therefore did not attach substantial or significant weight to this primary consideration. The appellant’s suggestion in Sami was that the Tribunal ought to have gone on to investigate or seek out such information from the applicant to counterbalance other material before it, which seemed also to seek to import some sort of duty to seek rebutting evidence: see Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348.
120 In my view, Sami is relevantly different to the present case. When it is said that the evidence before the present Tribunal about the children was scant, that is a reference to material submitted during the delegate phase and documentary evidence submitted to the Tribunal as at the time of the hearing. This ignores the fact that the Tribunal held a hearing which the applicant attended to give evidence and present arguments. That there was not even the most basic, or to use the words of French CJ in Uelese, “cursory”, inquiry of the applicant on this issue while he was present before the Tribunal to answer its questions, does not overpass the limits of the duty as set out in, inter alia, SZIAI.
121 The established case law regarding what is described as the “duty to inquire” traditionally explores the boundaries of the circumstances in which a Tribunal should go beyond its basic inquisitorial and fact-finding task, to make further inquiries or to investigate. The present case is not one such situation and accordingly, little support can be drawn for a submission in relation to materiality that the Tribunal had no such duty.
122 That is because in this case the Tribunal failed to discuss the issue or what evidence existed on this topic with the applicant at all when he appeared before it, which is all the more surprising given that the Tribunal was required to at least know something about the children in order that it could assess whether they were relevant children for the purposes of the primary consideration. Whether due to some wilful blindness to the issue (because it had already concluded using the biological rationale that the children were not the applicant’s own) or for some other reason, the paucity of evidence before the Tribunal was in part of its own making when it conducted a hearing at which issues which were clearly relevant to, if not dispositive of, the review were not canvassed with the applicant, despite having squarely arisen on the material which the applicant had submitted. This speaks more to the quality of the hearing opportunity, rather than to some further duty to inquire.
123 As the applicant says, there was more information before the Tribunal than the mere two sentences in the sentencing remarks, including information that in the absence of the applicant while he was in prison, the children had struggled. This was an evaluative case. It was not a case where there was no material for the Tribunal to consider, or where the consideration was binary such that a fact was either extant or not. Were this a case where the Tribunal had considered the evidence before it and ventilated relevant matters with the applicant during the hearing opportunity, then the submission regarding a duty to inquire could conceivably affect the question of materiality. Instead, the Tribunal fell short of exploring the evidence before it. Had it engaged in even a basic discussion about that material with the applicant, the landscape of evidence which then fell for consideration at the time it came to make its decision may have been more fulsome still.
124 That being so, there was a realistic possibility that the Tribunal could have reached a different decision in relation to the primary consideration based on the material before it.
125 Accordingly, I am of the view that the error as alleged by ground 1 is made out, and is material.
GROUND 3
126 This ground relates to the applicant’s migration history and the Tribunal’s consideration of the purpose of the applicant’s travel and stay in Australia, which was one of the secondary considerations prescribed by Direction No 63. The applicant takes issue with a finding of the Tribunal that the applicant had not applied “for any permeant [sic] visa rather than making application for visas with limited time periods” which was an error because as an “unauthorised maritime arrival” within the meaning of s 5AA of the Act, the applicant was statutorily barred from applying for any visa under s 46A of the Act unless the Minister “lifted the bar” to allow him to do so, and that he had in fact applied for a SHEV.
127 The error said to arise from this finding is variously cast. The applicant says firstly that this reasoning can be characterised as so irrational or illogical as to constitute jurisdictional error. In the alternative, the applicant says that even if this were not so, it in any event constituted a breach of s 359A of the Act because the Tribunal “did not advert to the possibility of reasoning in this manner, nor did the Tribunal provide any written notice of this proposed course of reasoning”.
128 That alleged breach is said to arise because the Tribunal must have had regard to the Department file in order to have listed the applicant’s previous bridging visas.
129 The first respondent accepts that the Tribunal made a factual error by stating that the applicant’s not having applied for a permanent visa undermined his claim to wish to remain in Australia permanently, but that this was not material. The first respondent says that is because the Tribunal could not have realistically reached a different outcome but for the error, because even constituting a legal error, it was a matter on which the Tribunal placed little weight.
130 This reasoning is somewhat circular because the reason the Tribunal ultimately placed little weight on the consideration was in part informed by its incorrect finding that the applicant had not applied for a permanent visa. In any event the first respondent also says that because it was not a primary consideration but one of 10 matters the Tribunal considered, there was no realistic possibility that the overall outcome could have changed. I would add to this that the question of having applied for permanent visas was just one of a number of factors within the Tribunal’s consideration of the purpose of travel and stay in Australia, and accordingly its impact to the consideration is even more marginal.
131 Addressing the alleged s 359A error, the first respondent says that the information the subject of this ground came within the s 359A(4) exception, namely that it was information that the applicant gave for the purposes of the application under review. To the extent the applicant contends the information was the specific visa subclasses and their respective dates of issue at [8] of the Tribunal’s decision, the first respondent says this characterisation is too “granular” and that the particulars of this information were not the reason or a part of the reason for affirming the decision under review. I agree.
132 Further, and in relation to the applicant’s contention that the Tribunal failed to advert to the possibility of reasoning in this manner, in my view this does not give rise to an error in the circumstances of this case. As was noted in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [48]:
…Lord Diplock said in F Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry [1975] AC 295 at 369
the rules of natural justice do not require the decision maker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision. If this were a rule of natural justice only the most talkative of judges would satisfy it and trial by jury would have to be abolished.
Procedural fairness does not require the tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given. On the contrary, to adopt such a course would be likely to run a serious risk of conveying an impression of prejudgment.
133 I am of the view that the error of the Tribunal, which the Minister concedes, was a mere factual error: see CRU18 v Minister for Home Affairs (2020) 277 FCR 493 at [29] to [31] per Wigney, Jackson and Snaden JJ. Even if it were not simply a factual error, I find that it was not material because as a stand-alone error it could not realistically have resulted in a different decision overall on the part of the Tribunal.
134 Accordingly, ground 3 is not made out.
GROUND 4
135 This ground alleges that the Tribunal failed to comply with s 359 of the Act by failing, in undertaking its review function, to exercise its discretion under that section to get any information that it considered relevant to the review. The information which the applicant says the Tribunal ought to have sought was the psychologist’s report which had been placed before the sentencing Judge in the South Australian District Court.
136 As noted above at [10], on each of 24 and 25 September 2020 and in advance of his hearing the applicant sent emails to the Tribunal each of which attached a document which was expressly referred to in its respective covering email. One of those documents was the applicant’s Tribunal submission by which he said, inter alia:
In regard to my Criminal matter, I have supplied the Magistrates [sic] comments, I have also supply my Phycologist [sic] report.
137 For the applicant, it is contended that this statement evinces a belief on the part of the applicant that he had supplied the psychologist’s report to the Tribunal and/or that he had an obvious intention to supply the report, and that the Tribunal thereafter:
(a)overlooked the omission;
(b)proceeded as a result on the assumption that there was no such report in existence, citing [30] of its reasons; and
(c)that a combination of the matters referred to in (a) and (b) above means that the Tribunal erred by failing to seek out the psychologist’s report itself.
138 The first respondent makes a number of submissions in response to this ground, namely:
(a)the discretion in s 359 is permissive and there is no express duty to inquire placed on the Tribunal by it, citing Minister for Immigration and Citizenship v SZKTI (2009) 238 CLR 489 at [27] to [28];
(b)this is not an example of a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained in the SZIAI sense;
(c)contrary to the assertions of the applicant that he clearly intended to provide the psychologist’s report to the Tribunal or actually believed he had, this is not borne out by reference to the surrounding circumstances, which included:
(i)the statement in the written submission set out at [136] above can be read as referring to the report having been provided to the South Australian District Court in connection with the sentencing;
(ii)each of the covering emails to the documents the applicant provided expressly refer in the body of those emails to the documents they respectively attach, and there is no reference to the psychologist’s report such that it should be inferred that the applicant intended to attach the report but thereafter omitted to do so; and
(iii)the contents of the psychologist’s report were, in any event, summarised in the sentencing remarks which the applicant did provide and therefore provision of the report itself would not have yielded a different result; and
(d)where at [35] the Tribunal stated that there was no evidence presented by the applicant in relation to his emotional or psychological condition, this should be read in its full context, which includes an acknowledgement that there would be some degree of hardship and, as against the sentencing remarks, which summarised the psychologist’s opinion as including that the applicant did not suffer from any particularly debilitating mental issues.
139 In my view, this ground fails at a factual level.
140 The applicant says that the obligation on the Tribunal to seek the psychologist’s report arose because there was an omission on the part of the applicant who had an “obvious intention” to place the report before the Tribunal, that accordingly the Tribunal ought to have apprehended as much such that it identified the omission and then requested that he provide it.
141 However, the applicant appears to have been quite diligent in his drafting of emails to the Tribunal and to have identified in the text of each covering email on 24 and 25 September 2020 the respective attachment. It is open to infer, and I do, that when in the applicant’s Tribunal submission he referred to having provided the psychologist’s report, this was a reference to having provided it to the sentencing Judge. I do not accept that the applicant was labouring under a misapprehension that he had provided the psychologist’s report to the Tribunal. Nor do I accept that the Tribunal ought to have interpreted his email, or the statement in the applicant’s Tribunal submission as meaning this, such that it had an obligation to get the report by using the s 359 mechanism, or otherwise.
142 Further, the applicant places reliance on the findings of the Tribunal at [30] that the Tribunal had an obvious concern that there was “no evidence presented by the applicant in relation to either emotional or psychological condition [sic]”.
143 A fair and contextual reading of the Tribunal’s reasons make clear that it was referring to a lack of evidence as to the psychological effects the visa cancellation may have on the applicant, given that the degree of hardship to him was one of the secondary considerations. In this regard, the psychologist’s report in question was not directed to the consequences of the cancellation, but rather to the issues surrounding sentencing. It was arguably of limited use to the Tribunal. The relevance of the psychologist’s report to the sentencing remarks was ascertainable from the sentencing remarks themselves. As such, the applicant has not pointed to anything emanating from the psychologist’s report which was not relevantly summarised in the sentencing remarks such that there remained any critical fact, the existence of which was outstanding such that it would have been met by utilising the discretionary power in s 359 to obtain the psychologist’s report.
144 In my view there is no jurisdictional error of the kind alleged by ground 4.
GROUND 5
145 The final ground of review alleges jurisdictional error arising in the context of the Tribunal’s consideration of the possible consequences to the applicant of the cancellation in relation to Australia’s non-refoulement obligations.
146 Direction No 63 prescribes at cl 7(1)(d) that one of the factors which must be considered is:
the possible consequences of cancellation, including but not limited to, whether cancellation could result in indefinite detention, or removal in breach of Australia’s non-refoulement obligations, noting that a decision to cancel a Bridging E visa does not necessarily represent a final resolution of a person’s immigration status.
147 It is contended for the applicant that the Tribunal failed to meaningfully engage with the material put before it and/or failed to engage in an active intellectual process, citing Minister for Home Affairs v Omar (2019) 272 FCR 589 at [36(d)] (which in turn cited Tickner v Chapman (1995) 57 FCR 451 albeit applied in the context of the revocation power under s 501CA of the Act).
148 Specifically, attention is drawn to the following evidence which was before the Tribunal in various ways which could be said to intersect with non-refoulement obligations:
(a)the circumstances of the applicant’s arrival in Australia by boat and the subsequent grant of a temporary Humanitarian visa;
(b)the reasons the applicant said he was fleeing from Iran as recounted to the psychologist and summarised in the sentencing remarks (CB 67);
(c)the sentencing remarks having referred to the applicant as “an Iranian refugee”;
(d)the grounds of application in the application for judicial review in proceedings MLG3292/2020, which were before the Tribunal (CB 72 to 78); and
(e)oral evidence given by the applicant to the Tribunal (T11).
149 The applicant says that the Tribunal failed to consider the above issues, properly or at all, and that this was material because had it done so, the Tribunal could have concluded that the possible consequences of cancellation extending to a potential breach of Australia’s non-refoulement obligations were such that they weighed in favour of non-cancellation.
150 The first respondent concedes that the Tribunal (again) made factual errors by its findings that the applicant had not identified any specific reason as to why he fled Iran, and also in finding that he did not identify any matter by which he would be seriously or significantly harmed on return. The first respondent makes specific reference to the sentencing remarks regarding the applicant’s affirmative action organising activities in Iran and the treatment he claimed he may suffer as a result.
151 The first respondent’s written submissions contended that the Tribunal’s errors were not material, because there was no realistic possibility of a successful outcome if the errors had not been made: see Hossain (supra) at [30] and SZMTA (supra) at [45]. This was said to be because the Tribunal was aware that the bridging visa cancellation could not have resulted in the applicant being removed in breach of any non-refoulement obligations, as the applicant would have remained in detention pending the outcome of his judicial review application relating to his SHEV, which at that stage was listed for hearing in July 2023[2] (CB 85 at [31]). The first respondent submitted that in these circumstances, non-refoulement issues would therefore have inevitably been given no weight, or such little weight, that they would not have affected the exercise of discretion.
[2] That application was remitted by consent to the Immigration Assessment Authority (Authority) for redetermination accordingly to law on 25 May 2021, the Minister having conceded that the decision was affected by jurisdictional error in that the Authority misapplied s 473DD of the Act
In oral submissions at hearing, the applicant’s Counsel developed three reasons why the Tribunal’s errors were said to be material:
(a)first, the Tribunal’s failure to consider the applicant’s claims relating to non-refoulement created a consequent failure “to consider consequences of returning the applicant to Iran that might have been less than significant or serious harm so as to engage non-refoulement obligations”. The Tribunal may have found that the level of harm which the applicant may face upon return to Iran, although not rising to the level of significant or serious harm, was nevertheless a relevant consideration in its discretion to consider cancellation. The Tribunal is thus said to have “closed its mind” to consequences of the applicant’s return to Iran which might have fallen short of non-refoulement (noting that cl 7(1)(d) of the Direction refers to the “possible consequences of cancellation, including non-refoulement but not limited to it”); (Transcript, 8 November 2021, 32.18-45)
(b)secondly, the applicant’s Counsel contended that although the text of Direction No 63 “anticipates that there might be other immigration proceedings on foot”, it does not provide the basis for ignoring non-refoulement obligations. Analogy was made to decisions pursuant to s 501CA of the Act, citing Ibrahim v Minister for Home Affairs (2019) 270 FCR 12 and Ali v Minister for Home Affairs (2020) 278 FCR 627. The applicant relied on Ali (supra) at [110] where the Full Federal Court stated as follows:
…for the purposes of s 65, the question is whether the Minister is satisfied that the specific criteria for a protection visa in s 36(2) are met. For the purposes of s 501CA(4) the question is whether the Minister is satisfied that there is “another reason” why the cancellation decision should be revoked. That criterion is more diffuse and less categorical that the criteria of s 36(2) and the material or representations advanced in support of a claim or part of a claim are not required to meet predetermined benchmarks.
Direction No 63 is similarly said to impose no “predetermined benchmarks” and “the fact that the particular statutory criteria for the grant of the visa might be considered in another context” should not be understood as meaning “that no consideration of it could have weighed into the Tribunal’s consideration under Direction [No] 63” (Transcript, 8 November 2021, 33.3-30); and
(c)thirdly, the error was said to be material because the statutory criteria for the SHEV for which the applicant had applied would not permit consideration of the entirety of Australia’s non-refoulement obligations, as “the refugee and complementary protection criteria codified in the Migration Act are narrower than the concept of non-refoulement at international law”, again citing Ibrahim and Ali. (Transcript, 8 November 2021, 33.32-34.5)
153 At hearing, Counsel for the first respondent refrained from substantively responding to the above, as he noted that “there may be an intersection” between the oral submissions of the applicant’s Counsel in relation to ground 5 and proceeding Plaintiff M1/2021 v Minister for Home Affairs, a matter currently before the High Court in its original jurisdiction, dealing with the issue in the context of revocation decisions under s 501CA of the Act. Counsel therefore foreshadowed that the issue may be addressed in further written submissions by the first respondent, and submitted that the Tribunal’s factual error was not material, as the consequences “were never going to be that [the applicant] was going to be removed from Australia in breach of… any non-refoulement obligations” (Transcript, 8 November 2021, 35.35-40; 53.11-18). This was because the Tribunal had found at [31] that the applicant, were his visa cancelled, would in any event remain in detention pending the outcome of judicial proceedings relating to his SHEV application.
154 As noted above, the applicant and first respondent filed supplementary written submissions on 12 November 2021 and 26 November 2021 respectively. The first respondent’s written submissions were silent in relation to Plaintiff M1/2021, did not directly address applicant Counsel’s oral submissions about the materiality of the error alleged by ground 5 and maintained the contention that the Tribunal’s factual error concerning the applicant’s claimed fear of harm was not material as there was no consequence of the applicant being removed from Australia in breach of non-refoulement obligations as a consequence of the Tribunal’s decision. The factor of non-refoulement is thus said by the first respondent to be “otiose” in this case and that it could not have assisted the applicant.
155 The applicant filed further submissions in reply on 10 December 2021 which seemed to maintain the materiality arguments made orally. The applicant disputed the first respondent’s “assumption” that it was never a possible consequence of the visa cancellation that the applicant would be removed from Australia in breach of non-refoulement obligations. This was said to be wrong because the statutory criteria in s 36 of the Act relating to protection visa obligations were only a “sub-set” of Australia’s non-refoulement obligations: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v FAK19 [2021] FCAFC 153.
156 The applicant could therefore hypothetically have been removed pending a protection visa refusal in breach of any obligations outside the scope of s 36 of the Act. Furthermore, the protection visa application process was said to not excuse the Tribunal from confronting non-refoulement claims in the cancellation context: LGLH v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1529 at [120] per O’Bryan J.
157 The High Court heard Plaintiff M1/2021 on 30 November 2021 and reserved judgment: see [2021] HCA Trans 203. At my request, my Associate corresponded with the parties on 9 February 2022, requesting that Chambers be notified within 7 days of the High Court delivering its judgment in Plaintiff M1/2021. In reply on 11 February 2021 the applicant’s solicitor responded for both parties noting correspondence between them to the effect that “while [the first respondent’s] Counsel referred to Plaintiff M1/2021 in oral submissions, the point was not ultimately pressed in their post-hearing written submissions and is not pressed currently” (emphasis added). My Associate sought clarification of this statement and on 21 February 2021 the first respondent’s solicitor subsequently confirmed that the Minister’s position remained that the Tribunal did not err because “it was never a possible consequence of the visa cancellation that the Applicant would be removed from Australia in breach of non-refoulement obligations.”
158 I find that ground 5 is made out.
159 The Tribunal’s error (conceded by the Minister) in finding the applicant as having failed to “identify any specific reason as to why [he] fled Iran” and to “identify any matter by which [he] would be seriously or significantly harmed if her returned to Iran” ([34]) evinced a serious misunderstanding of the applicant’s evidence. The Tribunal failed to meaningfully engage with the material which indicated the possible existence of non-refoulement claims as identified in the applicant’s initial outline of submissions at [66], including:
(a)the fact that the applicant had arrived illegally by boat, apparently fleeing Iran, and had been granted a humanitarian visa (CB 81 [8]);
(b)the fact that the applicant’s stated reason for fleeing Iran was because “company security … and Iranian police were looking for [him] for his workplace actions …[and he was] fearful that the police would take matters into their own hands, and this could lead to incarceration or worse in Iran” (CB 67);
(c)the fact that the criminal sentencing court described the applicant in the sentencing remarks as being an “Iranian refugee” (CB 67);
(d)the applicant’s Federal Circuit Court documents, which he provided to the Tribunal, where ground 4(a) notes: “the grounds advanced by the applicant for why he is owed protection obligations, being his actual or imputed political opinion, ethnicity, religious views, his and his family’s experiences in Iran, his time spent in Australia or on account of being a returning asylum seeker from Australia” (CB 77);
(e)the applicant’s statement in his letter to the Tribunal that: “I am extremely fearful of what would happen to me if I returned, or the danger it could bring to my family” (CB 70); and
(f)the Applicant’s oral evidence to the Tribunal, in response to a question about why he came to Australia: “that was after the problems which happened to me and then I had like some problems with the government and like security of the company that I worked in … And then after all that (indistinct) happened and some other things happened before that and then in 2013 I came to Australia ... I was just scared, I wanted to flee from there.” (T11).
160 The Tribunal’s failure to give genuine consideration to the above evidence infected its consideration under cl 7(1)(d) of Direction No 63 of “the possible consequences of cancellation, including but not limited to, whether cancellation could result in indefinite detention, or removal in breach of Australia’s non-refoulement obligations” (emphasis added).
161 Furthermore, the Tribunal’s error was material. If the Tribunal had proceeded under a correct understanding of the applicant’s claims, it may have treated the applicant’s claims to fear harm as a factor under cl 7(1)(d) to be given weight in the applicant’s favour, which may in turn have affected its overall conclusion that the visa should be cancelled. As noted above at [71] in relation to ground 2, it is not for the Court to speculate, in its counterfactual analysis, as to how the Tribunal would have apportioned weight to the various factors to which it was required to have regard pursuant to Direction No 63. I am satisfied that the applicant has discharged the onus of materiality in the instant case and that there is the “realistic possibility” of a different decision (MZAPC (supra) at [2]).
162 I reject the first respondent’s submission that the Tribunal would have given no or very little weight to this factor, as there was said to be no prospect of the applicant being removed in breach of non-refoulement obligations (on account of his ongoing proceeding for judicial review of a decision). The Tribunal may have been entitled to so reason and to have given the applicant’s claims no weight, if it had properly identified that the applicant had raised claims to fear harm. Alternatively, it would have been open to the Tribunal to reason otherwise and to treat the applicant’s claims as a factor weighing against cancellation of his visa. In light of the above, it is unnecessary to deal with the applicant’s contentions concerning materiality which were raised orally by his Counsel (see [152] above).
163 I do not have the benefit of submissions from the first respondent which directly address these contentions. The Full Federal Court has found that the content of non-refoulement obligations in international law is not co-terminous with the statutory criteria for grant of a protection visa: FAK19 (supra) at [117] to [119] per Kerr and Mortimer JJ. As noted above, I understand from the parties that this is a live issue in High Court proceeding M1/2021 v Minister for Home Affairs. As I have already found that the applicant has discharged the onus of proving materiality in relation to ground 5, it is preferable to await elucidation of this issue by the High Court.
ADDITIONAL ISSUE
164 It will be observed even from the extracts of the Tribunal’s decision set out in this judgment, and from the 2 errors the first respondent has conceded in relation to grounds 3 and 5 (albeit while not conceding they go to jurisdiction), that the Tribunal’s reasons for decision are far from an exemplar of precision or, in many instances, even of proofreading. The number and frequency of these errors (calculated by the applicant to be 27 errors in a short statement of reasons) caused me to ask the parties for supplementary submissions as to what, if anything, the Court should make of this.
165 The applicant’s supplementary written submissions in chief provided a useful (though said to be non-exhaustive) schedule of the Tribunal’s errors. I have included that list as an Appendix marked “A” to these reasons for judgment.
166 The first respondent accepts Appendix A as being correct insofar as the errors are extant, but disputes their significance.
167 The issue was not raised with the parties lightly, the Court being mindful, as was observed in Foroghi v Minister for Immigration and Multicultural Affairs [2001] FCA 1875 by Marshall J at [48] that:
…Occasionally the [Tribunal], like other decision-makers, deliver reasons for decision without 100% proofreading. Occasionally mistakes are not discovered even when the best of proofreaders have examined draft reasons. The existence of a typographical error is best acknowledged rather than attempted to be exploited; see CCC v Minister for Immigration and Multicultural Affairs [2001] FCA 682.
168 This may be even moreso in the context of the kind of high-volume decision-making which confronts Tribunals.
169 An array of cases in the migration jurisdiction in the past 2 decades have considered the effect of such errors. While often broadly described as being “typographic” or clerical errors, they actually arise in a number of different ways and have included:
(a)the use of an unfortunate word with potentially racist connotations to test a non-functioning spellchecker, which was then not later manually identified and removed prior to the publication of reasons:see M257 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FMCA 131 at [34] to [51] per Riethmuller FM (as his Honour then was);
(b)Tribunal members using template paragraphs in respect of different applicants from similar countries of origin or who make similar claims, and then indiscriminately cutting and pasting into the decision of others without consideration or at the very least tailoring: see SZRBA v Minister for Immigration and Border Protection (2014) 142 ALD 211 per Siopis, Perram and Davis JJ and MZZZW v Minister for Immigration and Border Protection (2015) 234 FCR 154 at [32(10)] per Tracey, Murphy and Mortimer JJ; alternatively, using template paragraphs which deal with similar issues but again failing to tailor them such that the Tribunal wholly mis-describes the applicant’s country of origin: see SZTGE v Minister for Immigration and Anor [2014] FCCA 1458 at [22] to [26] per Judge Driver; and
(c)poor drafting/looseness of language and definitions in the written decision so that the Tribunal’s reasoning process becomes difficult to discern: Davis v Minister for Immigration, Citizenship, Migrant Service and Multicultural Affairs [2021] FCA 1368 at [30] to [43];
(d)leaving out a crucial word such as “not”, leading to the opposite finding than was clearly intended from the context of the omission: see CCC v Minister for Immigration and Multicultural Affairs [2001] FCA 682 Marshall J at [27] to [29] and S14/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1153 at [34] per Moore J.
170 Then there are cases, such as the present, where there exist so many typographic, grammatical and other minor errors that one may be prompted to ask whether they ultimately affect the overall quality of the decision such that it can be concluded that the decision-maker failed to discharge their statutory task: see Overy v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 749 at [21] to [33] per Judge Lucev.
171 Overall the parties, by the supplementary written submissions agreed that notwithstanding the prevalence of them, the minor errors in this case did not by themselves establish jurisdictional error.
172 The assessment of typographic/clerical errors will always turn uniquely on their own facts and a full contextual reading of them against the circumstances of the individual case. As the Court found in Overy (supra) at [30], what is required is a proper analysis having regard to substance, not form. In this regard, I agree with the parties. It is tolerably clear that the reasons of the Tribunal while probably spell-checked, were not thoroughly proof-read, a process from which they would have benefited considerably. However, the manifold errors, embarrassing as they may be, even in aggregate do not lead me to conclude that for that reason alone the Tribunal failed to carry out its statutory task.
173 The applicant submitted that the errors should inform my understanding of the Tribunal’s reasoning in this case. While accepting there may be cases in which that submission may have considerable force, in this case I have ultimately not found the overall and general tendency towards carelessness in the Tribunal’s written decision, while regrettable, to result in error nor to have contributed to the substantive errors which I have found, unless I have expressly said so above.
CONCLUSION
174 Based on the facts and circumstances of this matter I am satisfied that the applicant has succeeded in establishing that the decision of the Tribunal is affected by jurisdictional error as alleged by grounds 1, 2 and 5.
175 Accordingly, I will grant relief in the form of the constitutional writs of certiorari and mandamus.
176 I will hear the parties as to costs.
I certify that the preceding one hundred and seventy-six (176) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given. Associate:
Dated: 31 March 2022
APPENDIX A
Applicant’s non-exhaustive list of errors
1 CB 81 [4], the Tribunal twice refers to the hearing being conducted ‘by telephone’, whereas in fact it was conducted by video (see T6.17)
2 CB 81 [4], the paragraph concludes with a stray ‘\’.
3 CB 82 [10], the Tribunal incorrectly states that the applicant was arrested on 9 August whereas in fact he was arrested on 8 August 2019 (CB 66, 68).
4 CB 84 [25], words appear to be missing from the first sentence such that it should read: ‘The applicant’s evidence to the Tribunal was that he was born in Iran on 10 August 1984.’
5 CB 84 [26], words appear to be missing from the first sentence such that it should read: ‘He started work with his uncle …’.
6 CB 84 [26], the reference to being ‘black banned’ should read ‘black listed’ (T16.18).
7 CB 84 [26], the reference to ‘travelled to Australian’ should be ‘travelled to Australia’.
8 CB 84 [27], the reference to ‘long terms relationship’ should be ‘long term relationship’ (singular).
9 CB 84 [28], the ‘While’ at the start of the paragraph suggests that the first two sentences were intended to in fact be one sentence.
10 CB 84 [28], the Tribunal incorrectly referred to the District Court sentencing judge as ‘he’, whereas Judge Deuter is a woman.
11 CB 84 [28], the Tribunal has omitted the word ‘the’ from the statement ‘does not accept that the applicant’s relationship with his girlfriend is ongoing’.
12 CB 84 [28], the Tribunal appears to have intended to write: ‘as a result of being separated from
forhis girlfriend.’13 CB 84 [28], the Tribunal appears to have intended to say: ‘the Tribunal places no weight in this consideration in
onthe applicant’s favour.’14 CB 85 [31], the Tribunal omitted the word ‘in’ in its reference to ‘his appeal to the FCCA in relation to his application’;
15 CB 85 [31], the Tribunal has omitted the word ‘visa’ in its reference to ‘his application for Safe Haven Enterprise (XE 790) visa’.
16 CB 85 [31], the Tribunal appears to have intended to say ‘FCCA’ rather than ‘FFCA’.
17 CB 85 [32], the Tribunal has misspelt ‘circumstances’.
18 CB 85 [32], the Tribunal incorrectly states that the applicant was arrested on 9 August whereas in fact he was arrested on 8 August 2019 (CB 66, 68).
19 CB 85 [34], the Tribunal has omitted the word ‘he’ in its reference to ‘why he fled Iran’.
20 CB 85 [34], the Tribunal has misspelt ‘permanent’.
21 CB 85 [37], the Tribunal omitted the apostrophe from ‘Department’s records’.
22 CB 85 [37], the Tribunal appears to have intended to say ‘there are no persons’ (plural).
23 CB 86 [40], the Tribunal has either omitted reference to a provision or has erroneously used the plural ‘ss’ to refer to s 48 of the Act.
24 CB 86 [40], the Tribunal appears to have intended to say ‘options to apply for a further visa in Australia’.
25 CB 86 [40], the Tribunal appears to have intended to say ‘entitled to apply for a Bridging E Visa’.
26 CB 86 [40], the Tribunal has misstated the effect of the statutory regime in suggesting that the applicant ‘will be entitled to apply for Bridging E Visa’, when in fact the effect of Schedule 1, item 1305, of the Regulations is that ‘The applicant has not previously held a visa that has been cancelled on a ground specified in paragraph 2.43(1)(p) or (q).’ Thus, the applicant was not able to apply for a bridging visa.
27 CB 86 [43], the Tribunal refers to ‘charges’ in the plural, whereas in fact the applicant only pleaded guilty to ‘one count’ (CB 66, emphasis added).
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