Kaur v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2024] FedCFamC2G 1297
•4 December 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kaur v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FedCFamC2G 1297
File number(s): MLG 262 of 2020 Judgment of: JUDGE CORBETT Date of judgment: 4 December 2024 Catchwords: MIGRATION – Application for judicial review – cancellation of student visa – Convention of the Rights of the Child – whether claim was explicitly made or arose from material – whether Tribunal erred in considering – best interests of child – application allowed. Legislation: Migration Act 1958 (Cth) ss 116(1)(b), 476, 501A(2)
Migration Regulations 1994 (Cth) Sch 8 conditions 8202, 8202(2)(a)
Cases cited: AGE18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 668
Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473
CAF17 v Minister for Home Affairs [2019] FCA 2203
COE17 v Minister for Immigration Citizenship and Multicultural Affairs [2023] FCA 669
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Murad v Assistant Minister for Immigration and Border Protection [2017] FCAFC 73
Nathanson v Minister for Home Affairs and Another [2022] HCA 26
NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695
Nguyen v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 762
Nweke v Minister for Immigration and Citizenship [2012] FCA 266
SZSHK v Minister for Immigration and Border Protection [2013] FCAFC 125
Division: Division 2 General Federal Law Number of paragraphs: 73 Date of last submission/s: 31 October 2024 Date of hearing: 31 October 2024 Place: Melbourne Counsel for the Applicant Mr S Sharify Solicitor for the Applicant Carina Ford Immigration Lawyers Counsel for the Respondents Mr C Hibbard Solicitor for the Respondents Mills Oakley ORDERS
MLG 262 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SANDEEP KAUR
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE CORBETT
DATE OF ORDER:
4 DECEMBER 2024
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to Minister for Immigration and Multicultural Affairs;
2.The name of the second respondent be amended to the Administrative Review Tribunal;
3.A writ of certiorari issue directed to the second respondent quashing the decision of the second respondent made 20 December 2019; and
4.A writ of mandamus issue directed to the second respondent requiring the second respondent to determine the applicant’s review application according to law.
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 CORBETT
The applicant seeks judicial review of the decision made by the second respondent (Tribunal) on 20 December 2019. The Tribunal affirmed an earlier decision of a delegate of the first respondent (Minister) to cancel the applicant’s Higher Education sector (Subclass 573) temporary student visa (visa).
The applicant seeks review on a single ground. That the Tribunal erred in exercising its discretion to cancel the visa by failing to consider a claim explicitly made or which arose clearly from the material that the best interests of the applicant’s child were inexorably tied to the applicant’s mental and financial well-being.
References in these reasons to “CB” pages are references to the Court Book that was tendered and admitted as evidence at the hearing before this Court and designated “R1”.
BACKGROUND
The applicant is a citizen of India. The applicant was granted the visa on 14 July 2014 and arrived in Australia on 18 July 2014 (CB 56). The visa was subject to condition 8202 of sch 8 to the Migration Regulations 1994 (Cth) (Regulations).
On 12 January 2017, a delegate of the Minister issued the applicant with a Notice of Intention to Consider Cancellation of the visa under s 116(1)(b) of the Migration Act 1958 (Cth) (the Act) (CB 9).
The Notice of Intention to Consider Cancellation stated that the applicant had not complied with condition 8202(2)(a) of the Regulations because the applicant had not been enrolled in a full-time registered course of study since 30 June 2016 (CB 10).
On 24 January 2017, the applicant’s representative responded to the Notice (CB 20). The response included a Confirmation of Enrolment from Holmesglen Institute indicating that the applicant proposed to commence a Diploma of Nursing and then a Bachelor of Nursing degree from 23 January 2017 (CB 20-2).
On 1 February 2017, a delegate of the Minister cancelled the visa pursuant to s 116(1)(b) of the Act (CB 62).
On 7 February 2017, the applicant applied to the Tribunal for review of the delegate’s decision (CB 75).
On 6 June 2018, the then representative of the applicant filed a written submission with the Tribunal summarising the history of the applicant’s enrolments and noting the birth of the applicant’s daughter (CB 180-2). In that submission, the applicant acknowledged a breach of condition 8202 but claimed that it was unintentional and caused by poor health following complications from the birth of the applicant’s daughter.
On 28 August 2018, the Tribunal affirmed the delegate’s decision to cancel the visa (CB 196). In that decision, the Tribunal considered as a matter of discretion the interests of the applicant’s husband and infant child who were joint applicants to the application for review of the delegates decision (CB 200-3).
On 15 February 2019, the Federal Circuit Court remitted the matter to the Tribunal by consent (CB 205-6).
On 26 February 2019, the Tribunal invited the applicant to provide further information to the Tribunal so that it may reconsider the application for review (CB 208-9).
The applicant’s solicitor provided additional material to the Tribunal including a written submission (CB 210-27).
On 12 August 2019, the Tribunal invited the applicant to attend a hearing to be held in person at Melbourne on 9 September 2019 (CB 228-9).
On 28 August 2019, the proposed hearing was rescheduled to 12 September 2019 (CB 240–1).
On 5 September 2019, the applicant’s solicitor wrote to the Tribunal providing further background and other information regarding the application for review (CB 247-55). In that letter there was no reference to the consideration by the Tribunal of the interests of the applicant’s infant daughter and husband. However, these were matters considered by the Tribunal in its first decision on 28 August 2018 (CB 200-1 [29], [31] and [49]).
On 12 September 2019, there was a hearing before the Tribunal at Melbourne. The applicants were represented by their solicitor (CB 270-1). After the hearing, on 4 October 2019, the Tribunal wrote to the applicants inviting them to comment on or respond to further information obtained by the Tribunal from the Holmesglen Institute regarding the applicant’s enrolment (CB 319-320). In that invitation, the Tribunal said that the information obtained from Holmesglen Institute was relevant to the review because it did not corroborate claims made by the first applicant at the hearing on 12 September 2019.
On 18 October 2019, the solicitor for the applicants provided further written submissions to the Tribunal with further medical evidence (CB 322-447).
On 20 December 2019, the Tribunal affirmed the decision under review and exercised the Tribunal’s discretion to cancel the visa (CB 469-487) (Decision).
TRIBUNAL’S DECISION
The Tribunal concluded that the conditions for cancellation of the visa were met because the applicant was not enrolled in a registered course of study during the period from July 2016 to January 2017 (CB 471-2 [13]-[20]).
The Tribunal then considered the exercise of discretion to cancel the visa and the guidance in Ministerial Direction No. 61. Relevantly, for the purpose of the amended application for judicial review before this Court, the Tribunal considered whether any international obligations would be breached as a result of cancellation of the visa. At paragraphs [62]–[63] of the Decision the Tribunal said (CB 484):
62. There is little before the Tribunal to indicate there are international obligations to consider. The applicant did not address international obligations in her submission to the Tribunal of 5 September 2019 or earlier submissions to the Department.
63. The Tribunal has considered the Convention of the rights of the Child (CROC) and whether the cancellation would not be in the best interests of the applicant’s child. There is no evidence to suggest that cancellation of the applicant’s visa will result in the separation of the applicant and her child. The applicant did not advance any hardship the husband would suffer as a result of the cancellation of his visa. The applicant’s evidence was that her husband had limited English and as such he presumably will be better placed to find employment in the event he returns to India. The applicant did not provide any submissions to the Tribunal that addressed any possible breach of international obligations. Accordingly, the Tribunal finds that it is in the best interests of the child that the visa of the applicant is cancelled. The Tribunal is not aware of any factor that outweighs this consideration (e.g. see Nweke v MIAC [2012] FCA 266 (Jagot J, 23 March 2012).
Accordingly, the Tribunal places no weight on this consideration in the applicants’ favour.
At paragraphs [70] and [71] the Tribunal concluded (CB 486):
70. The Tribunal has considered all factors both individually and cumulatively in the context of the breach. The Tribunal finds that the applicant was not enrolled in a course of study that is the principal source of a type specified for the Subclass 573 visa and for the reasons outlined in paragraphs 14, 22 to 29 and 38 above that a breach of approximately 6 months is significant in the context of a student’s study period. On balance the Tribunal is satisfied the factors in favour of cancelling the applicant’s visa heavily outweigh the factors that weight against cancelling the visa.
71. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.
The Tribunal affirmed the decision to cancel the visa (CB 486 [72]).
PROCEEDINGS BEFORE THIS COURT
On 24 January 2020, the applicant filed an application with this Court seeking judicial review of the Decision pursuant to s 476 of the Act. The application was supported by an affidavit affirmed by the solicitor for the applicant on 23 January 2020. The applicant’s husband and daughter are not parties to this proceeding but they will be affected by the outcome.
On 20 May 2020. a Registrar of this Court ordered the Minister to file and serve an electronic form of the Court Book. The applicant was ordered to file and serve any amended application, supplementary Court Book and a written submission 28 days before the date fixed for a hearing of the application for judicial review.
On 10 October 2024, the applicant filed an amended application for judicial review together with a written outline of submissions. The grounds of review were as follows:
(1)In considering the discretionary factors for cancellation the Tribunal failed to consider a claim explicitly made or which arose clearly from the material that the best interests of her child were inexorably tied to the Applicant’s mental and financial well-being.
Particulars
(a)The Tribunal found [63] that the cancellation of the Visa was in the best interests of the Applicant’s child.
(b)The Tribunal failed to consider information before the Tribunal which indicated that the mental health of the Applicant was fragile and would deteriorate on Visa cancellation and moreover, that it was in the Applicant’s financial interest for the Visa to not be cancelled so that she could complete her studies and be able to earn a living upon return to India, which was in turn her in her child’s best interests.
On 14 October 2024, an order was made at the request of the parties extending the time within which the applicant file and serve any written submissions, amended application and additional evidence upon which the applicant seeks to rely to 10 October 2024.
On 15 October 2024, the solicitor for the applicant filed and served an affidavit sworn 15 October 2024 that annexed a copy of a transcript of the hearing before the Tribunal held 12 September 2019.
On 23 October 2024, the solicitor for the Minister filed and served an outline of written submissions in response to the applicant’s written submissions dated 10 October 2024 together with a list of authorities.
The amended application was listed for hearing before this Court on 31 October 2024 at Melbourne.
Mr Sharify of counsel appeared for the applicant instructed by Carina Ford Immigration Lawyers, solicitors. Mr Hibbard of counsel appeared for the Minister instructed by Mills Oakley, solicitors.
APPLICANT’S SUBMISSIONS
Counsel for the applicant’s submission was concise. It was submitted that the Tribunal must consider every claim made by an applicant and the failure to do so will constitute jurisdictional error. That includes an integer of a claim which clearly arises from the material (see CAF17 v Minister for Home Affairs [2019] FCA 2203 at [58] per Greenwood J).
A claim was either explicitly made or reasonably arose from the material that the emotional and psychological impact on the applicant caused by cancellation will have a detrimental impact on the best interests of her child. This was a discretionary consideration that was not considered by the Tribunal.
It was submitted that the cancellation of the visa will lead to stress and anxiety to the applicant and would damage the applicant’s “already fragile mental condition”. This was a claim that was either explicitly raised before the delegate in the written submission dated 26 September 2016 (CB 59) or which a reasonably competent Tribunal or decision maker would foresee as arising from the materials and submissions.
Put succinctly, the applicant’s mental health and financial well-being were clearly matters which would go to the best interests of her child and were overlooked when considering that element of the Tribunal’s discretion to cancel.[1]
[1] See paragraphs 8 and 9 of the applicant’s outline of written submissions dated 10 October 2024.
MINISTER’S SUBMISSIONS
Counsel for the Minister submitted that there was no jurisdictional error by the Tribunal.
It was submitted that there was no error in finding that the applicant breached condition 8202 by failing to be enrolled in a course of study during the period from July 2016 until January 2017.
In relation to the exercise of the discretion to cancel, the Tribunal considered all the claims made by the applicant in the written submissions prepared by the applicant’s solicitor. In determining whether the Tribunal failed to consider a claim, the Court must have regard to the overall context of how the applicant advanced her claims before the delegate and the Tribunal. The fact that the applicant was represented throughout this process, including before the Tribunal, by a highly experienced migration agent and lawyer, was relevant to the Court’s assessment (see SZSHK v Minister for Immigration and Border Protection [2013] FCAFC 125 at [37] (SZSHK)).
Reliance was placed on the observations of Bromwich J in COE17 v Minister for Immigration Citizenship and Multicultural Affairs [2023] FCA 669 at [9] (COE17) where his Honour observed that: “It is not for this Court to ferret around and construct a claim when none has been made, or to isolate an issue that was not readily apparent, especially when the appellant was represented by a migration agent who was also a legal practitioner…”.
It was submitted that the claim raised under ground one of the amended application was never expressly advanced by the applicant in written submissions or any written statement. The claim was first identified over four years later when the applicant filed the amended application in October 2024. It was not identified in the original application filed in January 2020 or after remittal of the matter to the Tribunal by the Federal Circuit Court in February 2019.
Further, the claim did not squarely or clearly arise from the circumstances of this case. The decision of the Tribunal must also be considered in the light of the basis upon which the application was made, not upon an entirely different basis for reasons that may occur at some later stage to the applicant or the applicant’s lawyers (see Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 at [1] per Gleeson CJ (Appellant S395/2002)).
It was submitted that the Tribunal did consider the applicant’s mental and emotional wellbeing in the Decision but gave those matters little weight in the absence of evidence (CB 481-2 [47]-[48]). The Tribunal was prepared to accept that there may be embarrassment or discomfort associated with the untimely return to India with minimal academic progress and that there may be family and community disapproval, but those matters were of insufficient weight to persuade the Tribunal not to cancel the visa.
Importantly, there was no evidence provided to the Tribunal by a medical practitioner (or other expert) as to actual emotional or mental harm suffered by the applicant after August 2016, or that the applicant and her child would suffer emotional or financial hardship upon cancellation of the visa.
Finally, it was submitted, that the Tribunal did give consideration to the best interests of the applicant’s child but gave that consideration “neutral” or no weight in the applicant’s favour (CB 484 [63]). The weight to be given to the interests of the child was a matter for the Tribunal and not this Court. It was submitted that the amended application should be dismissed with costs.
SUBMISSIONS IN REPLY
In reply, Mr Sharify sought to rely on a decision of the Federal Court of Australia in AGE18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 668 (AGE18) per Middleton J. In that case, the Court considered an appeal from the Federal Circuit Court in relation to whether the Immigration Assessment Authoriy (Authority) failed to consider a relevant material matter which clearly emerged from the review material and whether the Authority should have appreciated and considered the matter explicitly. In that case, Justice Middleton applied the sentiment and test articulated by Allsop CJ in Hands v Minister for Immigration and Border Protection [2018] FCAFC 225 at [3] (Hands) and in NAVKv Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695 at [15] (NAVK). Justice Middleton also referred to several authorities regarding the proper consideration of unarticulated claims. It was submitted that the human significance of certain personal circumstances may be important in considering whether a claim “clearly emerges” from the review material (AGE18 at [25] per Middleton J).
Mr Hibbard for the Minister correctly observed that the decision of Justice Middleton in AGE18 related to a protection visa and the consideration of discretionary reasons when assessing the reasonableness of relocation. It was not a case in relation to the cancellation of a visa and the Tribunal’s discretion not to cancel. He submitted there were different human rights consideration to be applied in that case.
CONSIDERATION
The issue to be determined in the application is whether the claim articulated in the amended application was either explicitly made or arose “tolerably clearly from the material itself” such that it should have been addressed by the Tribunal (NAVK at [15] per Allsop J (as he then was) and COE17 at [9] per Bromwich J).
On 5 February 2018, the applicant provided information to the Tribunal relevant to the exercise of the discretion in a statement that appears at CB 101–6. In that statement the applicant said the following (CB 105) (verbatim):
“Hardship which we will face in future are-
1. Bad name in the society for entire family and social rejection, as my friends, neighbours and relatives will make fun of me that I haven’t finished my studies. I will not get good job in my country.
2. No job due to visa cancellation tag I will not get any job as I don’t have work rights.
3. Minor baby (less than 2 year old) will face problems in all her career and age ahead.
4. Social stigma of being unlucky. In India, people are still feeling that child should be a male and that girl child is not good. I do not believe in that. Already my family in India started saying that the baby / girl child has not been lucky for us. I don’t know whether she will be accepted in society and what name will she carry due to this. She will be taunted and teased all her life and may be deprived of basic human rights also.
5. I will not be able to gain practical skills of Australian hospitals as, I want to serve my community with the skills I will learn from Australia if my visa got cancelled I will not be able to fulfil my dream.”
The applicant said further at (CB 105):
“I feel that I should be given justice and my visa back so that I can get a good name for me, my family and my 1 year 8 months old baby who doesn’t even understand what implications will be there on her life due to this visa cancellation tag.”
In the written submissions provided to the delegate dated 26 September 2016, it was said on behalf of the applicant that (CB 59):
We would like to let DIBP case officer know in case my client’s visa is cancelled visa holder will not be able to complete her study in Australia and this will lead to a complete unexpected beginning in her life which she never seen coming. Visa holder possible blame their newly born child for this situation and this will lead to stress and anxiety in her life. Visa holder is already struggling to come out of post maternal depression and a visa cancellation during this period will even further damage her already fragile mental condition.
On 5 September 2019, the solicitor for the applicant provided a letter to the Tribunal that contained background and submission for consideration by the Tribunal following remittal by the Federal Circuit Court of the applicant’s application for review (CB 247-55). In that letter the solicitor said (CB 251-4):
21. The Act and Regulations do not prescribe matters which are required to be considered in relation to the exercise of the discretion to cancel the visa, and we submit that the Tribunal is able to take into account any considerations which are put forward by Ms Kaur, in addition to those which are included in the Department’s Procedures Advice Manual (PAM 3) (‘policy’)…
42. The Cancellation and subsequent review process has caused considerable emotional hardship for Ms Kaur, in addition to that which she suffered as a result of the emergency Caesarean section and post-pregnancy complications. In addition, Ms Kaur has applied to study in Australia in order to ensure she has high-level qualifications to use to start a successful career in India upon graduation. Should she be required to return to India without an Australian qualification, she instructs that she will face an uncertain future where she will feel deeply ashamed for disappointing her family.
From these submissions and the statement of the applicant, a claim arose to the effect that the applicant and her immediate family would suffer social rejection and potential unemployment if the visa was cancelled. Explicitly, that the applicant’s “Minor baby (less than 2 year old) will face problems in all her career and age ahead”. Further, that there would be social stigma for the child and the child may be “deprived of basic human rights” in the event of return to India following cancellation of the visa. These were matters that were not addressed by the Tribunal in the Decision nor is it clear from the Decision if any weight was given to them.
Whether the matters raised by the applicant amounted to a claim that the best interests of the applicant’s child were “inexorably tied to the applicant’s mental and financial well-being” is problematic. So too that the Tribunal should have been alive to a deterioration in the mental health of the applicant as is particularised in paragraph 1(b) of the amended application. Neither of those matters were “explicitly” articulated in those terms in the submissions or statement provided by the applicant. However, the best interests of the child was a matter that the Tribunal was obliged to properly consider and give weight.
In Nweke v Minister for Immigration and Citizenship [2012] FCA 266 (Nweke), Justice Jagot considered an appeal from a decision of the Minister to cancel the appellant’s visa under s 501A(2) of the Act on character grounds. Her Honour found that the Minister failed to take account of relevant material namely, the best interests of the appellant’s child. Her Honour said at [10]-[16]:
[10] In Minister of Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273;[1995] HCA 20 (Teoh) the High Court considered the effect of the ratification by Australia and entry into force of the United Nations Convention on the Rights of the Child (the Convention), in particular, Art 3 which provides that:
In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.
[11] At 291–292 of Teoh Mason CJ and Deane J held that Art 3 involves a “positive statement” which “is an adequate foundation for a legitimate expectation, absent statutory or executive indications to the contrary, that administrative decision-makers will act in conformity with the Convention and treat the best interests of children as ‘a primary consideration’ … if a decision-maker proposes to make a decision inconsistent with a legitimate expectation, procedural fairness requires that the persons affected should be given notice and an adequate opportunity of presenting a case against the taking of such a course”.
[12] The Full Court of the Federal Court applied this reasoning in Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133; [2001] FCA 568 (Wan). The court (Branson, North and Stone JJ) referred to the decision of another Full Court in Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608 (Vaitaiki) in which Burchett J had observed (at 618) that “the question which the Tribunal was required to answer was what the best interest of the children required it to decide with respect to the proposed deportation of their father, not what the children should do given that their father would be deported”. In Wan at [26] Branson, North and Stone JJ said that:
Of particular significance is the failure of the Tribunal to identify anywhere in its written reasons for decision what the best interests of the children indicated that it should decide with respect to Mr Wan’s application for a visa. That this is the starting point for the Tribunal’s consideration follows from Teoh and from Vaitaiki.
[13] They continued at [28]:
In giving consideration, as it had done in Vaitaiki, to what the children might do if their father were required to cease living in Australia, the Tribunal was not undertaking an inherently inappropriate task. Such consideration was capable of assisting the Tribunal in determining whether the strength of any other consideration or considerations outweighed the best interests of the children. However, it was not a useful thing to do without the Tribunal having first identified what the best interests of the children indicated should be decided with respect to Mr Wan’s visa application.
[14] They made the same point at [31] in these terms:
… the Tribunal finds that matters touching on the interests of the children do not “outweigh the strength of community expectations”. That is, the Tribunal does not in fact treat the best interests of the children as a primary consideration but rather treats considerations touching on community expectations as considerations which should prevail unless “outweighed” by other considerations. As Mason CJ and Deane JJ pointed out in Teoh at 292:
"A decision-maker with an eye to the principle enshrined in the Convention would be looking to the best interests of the children as a primary consideration, asking whether the force of any other consideration outweighed it."
[15] And at [32] Branson, North and Stone JJ said the Tribunal:
was required to identify what the best interests of Mr Wan’s children required with respect to the exercise of its discretion and then to assess whether the strength of any other consideration, or the cumulative effect of other considerations, outweighed the consideration of the best interests of the children understood as a primary consideration.
[16] Although Vaitaiki and Wan both concerned decisions of a tribunal they applied Teoh, which concerned a decision of the Minister. Accordingly, consistent with these decisions (which the Minister accepted I would apply whilst formally submitting that Teoh was wrongly decided), I consider that the applicant had a legitimate expectation that the Minister would treat the best interests of his children as a primary consideration in deciding whether or not to cancel his visa. Failure to do so would be in breach of the requirements of procedural fairness.
In the present case, the Tribunal referred to the best interests of the child and the International Convention in the Decision but it did not identify the best interests of the child as a primary consideration nor did it identify what those interests were (CB 484 [63]). At best, it identified that there was no evidence that that cancellation of the visa will result in the separation of the applicant and her child. The Tribunal then concluded that it was in the best interests of the child that the visa be cancelled without articulating why and how that conclusion was reached. It did not consider any of the matters identified by the applicant in her statement or in the written submissions regarding the welfare of the child should the applicant be required to return to India.
Further, paragraphs [63] and [64] of the Decision (CB 484-5) are in almost identical terms to paragraph [49] and [50] of the decision of the Tribunal made 28 August 2018 (CB 196-203). There is no suggestion in the Decision that the Tribunal considered the interests of the child as a primary consideration to be weighed against other considerations. The Tribunal simply gave the interest of the child, no weight (CB 484 [63]).
Whilst, there may not have been an “explicit” claim of the kind identified in the amended application there was an explicit claim that if the visa was cancelled and the appellant required to return to India that would not be in the best interests of the child or the applicant mother. Further it was “tolerably clear” from the applicant’s statement dated 5 February 2018 and the written submissions dated 26 September 2016 that the wellbeing of the appellant and her child should the visa be cancelled was a claim that should be addressed and confronted but was not (see NAVK at [15]). It was also clear from the impugned decision of the Tribunal made 28 August 2018 that hardship and social stigma were claims previously made by the applicant that were addressed in that decision (CB 200-1 [30]-[31]). The Tribunal did address aspects of the claim of hardship in the Decision but only in so far as finding that there was no psychiatric, psychological medical or other professional advice of hardship which made it difficult to rationally assess those claims (CB 203 [48]). However, there was no explanation or reasoning given as to why the Tribunal concluded that cancellation of the visa was in the best interests of the child. There was no genuine consideration of the claim that it was not in the interests of the child to cancel the visa because of hardship, social stigma and potential denial of human rights (CB 203 [53]). There was no thought process undertaken to weight those considerations against other considerations relevant to cancellation. Mere reference to the decision of Justice Jagot in Nweke was unhelpful in explaining the Tribunal’s reasoning (CB 484 [63]).
As Allsop CJ observed in Hands at [3]:
Where decisions might have devastating consequences visited upon people, the obligation of real consideration of the circumstances of the people affected must be approached confronting what is being done to people. This obligation and the expression of its performance is not a place for decisional checklists or formulaic expression. Mechanical formulaic expression and pre-digested shorthand expressions may hide a lack of the necessary reflection upon the whole consideration of the human consequences involved. Genuine consideration of the human consequences demands honest confrontation of what is being done to people. Such considerations do not detract from, indeed they reinforce, the recognition, in an assessment of legality, that those entrusted with such responsibility be given the freedom of lawful decision-making required by Parliament.
With those sentiments in mind the Tribunal was required to confront the human consequences of the decision to cancel the visa for the applicant, her husband and their child. Whilst the submissions made by the Minister are correct that it is not the role of this Court to construe the Decision minutely and finely with an eye keenly attuned to the perception of error (see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272) and it is not for this Court to ferret around and construct a claim when none has been made (COE17 at [9]). However, a claim was made by the applicant that cancellation of the visa would have a detrimental effect on the wellbeing of her child and that claim emerges from the review materials when considered as a whole (AGE18 at [25]) and should have been considered properly by the Tribunal and was not.
In Nguyen v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 762, Judge Goodchild considered whether the Tribunal fell into error in failing to consider the best interests of two minor children of the applicant when considering the cancellation of a student visa. At paragraph [47] her Honour held:
There is nothing in the Reasons to suggest that the Tribunal considered the best interests of the children as a primary consideration at the same time of considering the matters which tended to support a decision adverse to the applicant
At paragraph [49], Her Honour considered the Full Court of the Federal Court of Australia decision in Murad v Assistant Minister for Immigration and Border Protection [2017] FCAFC 73 at [28]-[31].Her Honour then observed at [50] and [51]:
In Lesianawai v Minister for Immigration and Citizenship [2012] FCA 897; (2012) 131 ALD 27, Katzmann J at [36] considered that the principles above apply equally to decisions affecting visa applicants and visa holders facing the prospect of their visas being cancelled.
What was required was a close consideration of the material and evidence, a determination of what in fact were the best interests of the children, and then an assessment of those interests as a primary consideration in light of the other considerations.
In that case, her Honour held that there was jurisdictional error by failing to confront as a primary consideration the best interests of the children and weighing those interests against other considerations. The same could be said here in circumstances where the interests of the child were raised but not adequately considered by the Tribunal.
The Minister submitted that the Decision of the Tribunal must also be considered in the light of the basis upon which the application was made, not upon an entirely different basis for reasons that may occur at some later stage to the applicant or the applicant’s lawyers (Appellant S395/2002 at [1] per Gleeson CJ) and that in determining whether the Tribunal failed to consider a claim, the Court must have regard to the overall context of how the applicant advanced her claims before the delegate and the Tribunal. The fact that the applicant was represented throughout this process, including before the Tribunal, by a highly experienced migration agent and lawyer, was relevant to the Court’s assessment (SZSHK at [37]).
Whilst I agree that context is important and may assist in assessing whether a claim is “tolerably clear” from the material, it is unfair to be overly critical of the applicant’s legal representatives in not rearticulating previous claims in the submissions filed with the Tribunal on 5 September 2019 (CB 247-255) and subsequently on 18 October 2019 (CB 323-5). The context in which those submissions were made does not suggest that there was any abandonment of previous claims nor does the omission to address the best interests of the child mean that the Tribunal need not consider those interests as primary considerations that must be weighed against the other discretionary considerations.
The Tribunal did not complete its statutory task by considering all of the essential elements of the claims squarely raised by the materials and evidence of the applicants. It was not contended by the Minister that the error was not material and that had the Tribunal undertake the statutory task there would have been no different outcome. The Minister was correct not to do so because the standard of reasonable conjecture as to the realistic possibility of a different outcome is undemanding in circumstances such as these (see Nathanson v Minister for Home Affairs and Another [2022] HCA 26 at [32]-[33] per Keifel CK, Keanne and Gleeson JJ).
I am satisfied that the Tribunal fell into jurisdictional error in failing to genuinely consider the bests interests of the applicant’s child when exercising the discretion to cancel the visa. The applicant is entitled to the relief sought in the amended application.
OTHER MATTERS
As a consequence of the passage of the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth), the name of the second respondent is to be amended to the Administrative Review Tribunal. The name of the first respondent will be amended to Minister for Immigration and Multicultural Affairs.
COSTS
I will hear the parties on the question of the costs of the proceeding.
ORDERS
The name of the first respondent be amended to Minister for Immigration and Multicultural Affairs.
The name of the second respondent is to be amended to the Administrative Review Tribunal.
A writ of certiorari issue directed to the second respondent quashing the decision of the second respondent dated 20 December 2019.
A writ of mandamus issue directed to the second respondent requiring the Tribunal to determine the applicant’s review application according to law.
I certify that the preceding seventy-three (73) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Corbett. Associate:
Dated: 4 December 2024
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