Pihere v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FCA 1342
•11 November 2022
FEDERAL COURT OF AUSTRALIA
Pihere v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1342
Review of: Pihere and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 4236 File number: VID 693 of 2021 Judgment of: COLVIN J Date of judgment: 11 November 2022 Catchwords: MIGRATION - application for judicial review of Tribunal's decision to affirm decision of the Minister's delegate not to revoke applicant's visa cancellation under s 501CA(4) of the Migration Act 1958 (Cth) - where the Tribunal was required to comply with Direction 90 - where applicant alleges that Tribunal failed to have regard to a clearly articulated representation - where applicant's statement of issues before the Tribunal articulated a claim that it should approach the application of the consideration in the Direction on the basis that non-revocation would permanently exclude the application from Australia - where Tribunal did not reference claim in reasons - where Minister contends that Tribunal implicitly accepted the consequence of permanent exclusion - whether Tribunal brought its mind to bear on the representation in exercising its discretion - consideration of DLJ18 v Minister for Home Affairs [2018] FCAFC 236 - application allowed Legislation: Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth) ss 499, 500, 501, 501CA
Cases cited: BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; (2019) 268 CLR 29
DLJ18 v Minister for Home Affairs [2019] FCAFC 236; (2019) 273 FCR 66
Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216; (2018) 267 FCR 643
Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16
Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323
Nathanson v Minister for Home Affairs [2022] HCA 26
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17
Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; (2015) 258 CLR 173
Division: General Division Registry: Victoria National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 55 Date of hearing: 8 November 2022 Counsel for the Applicant: Mr J McComber Solicitor for the Applicant: Sentry Law Counsel for the First Respondent: Mr V Murano Solicitor for the First Respondent: Australian Government Solicitor Counsel for the Second Respondent: The Second Respondent filed a submitting notice save as to costs ORDERS
VID 693 of 2021 BETWEEN: MAHUTA TIKIRAU PIHERE
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
COLVIN J
DATE OF ORDER:
11 NOVEMBER 2022
THE COURT ORDERS THAT:
1.The application is allowed.
2.The decision of the second respondent made on 20 October 2021 be set aside and the matter be remitted to the second respondent for determination according to law.
3.The first respondent pay the applicant's costs of and incidental to the application to be assessed by a registrar on a lump sum basis if not agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
COLVIN J:
Since he was 33 days old, save for three short absences, Mr Mahuta Pihere has lived his whole life in Australia. He is now 22 years of age. He is a citizen of New Zealand but has lived as a permanent resident of Australia. In the ordinary course, under the immigration arrangements that exist between Australia and New Zealand, he could continue to live here. However, as a result of Mr Pihere being sentenced to a term of imprisonment for more than 12 months his visa was cancelled. By reason of the circumstances in which his visa was cancelled, the Minister was required to invite Mr Pihere to make representations about the revocation of the visa cancellation. If he made representations, the Minister had power to revoke the cancellation of his visa if the Minister was satisfied that he passed 'the character test' or that there is 'another reason why' the visa cancellation should be revoked: s 501CA(4) of the Migration Act 1958 (Cth).
Mr Pihere made representations to the Minister. A delegate of the Minister refused to revoke the visa cancellation. Mr Pihere then sought review in the Administrative Appeals Tribunal. In those instances where a decision not to revoke is the subject of an application for review in the Tribunal, the provisions of the Administrative Appeals Tribunal Act 1975 (Cth) are modified by the terms of s 500(6A) to s 500(6L) of the Migration Act. Even so, those provisions contemplate an oral hearing at which the applicant for review may present further documents. Therefore, the matters before the Tribunal are not confined to the representations to the Minister. They include any further matters raised before the Tribunal which become representations for the purposes of the power to revoke the visa cancellation. The Tribunal must make a decision standing in the shoes of the delegate of the Minister.
Section 499 of the Migration Act provides that the Minister 'may give written directions to a person or body having functions or powers under this Act' if the directions are about the performance of those functions or the exercise of those powers. The person or body must then comply with the direction: s 499(2A). The Minister has made a written direction under s 499 concerning the exercise of the power conferred by s 501CA, namely 'Direction No. 90 - Visa refusal and cancellation under section 501 and revocation of mandatory cancellation of a visa under s 501CA' (Direction). Therefore, in making its decision, the Tribunal was required to comply with the Direction.
The Direction designates 'primary' and 'other' considerations to which a decision-maker is to have regard in exercising the discretion conferred by s 501CA in instances where the decision‑maker is satisfied that the visa applicant does not satisfy the character test. It requires those considerations to be taken into account, where relevant: para 6. It also provides that primary considerations should generally be given greater weight than other considerations: para 7(2).
The statement of facts, issues and contentions in the Tribunal
Counsel appeared for Mr Pihere in the Tribunal. In accordance with the Tribunal's usual procedures, a statement of facts, issues and contentions (Statement) was filed for Mr Pihere. The Statement recorded that it was accepted that Mr Pihere failed the character test. Therefore, the facts, issues and contentions in the Statement were directed to making representations as to why there was 'another reason' why Mr Pihere's visa cancellation should be revoked.
After a brief factual summary, the Statement identified what was described as 'Preliminary Issues'. It began with a heading 'Permanent consequences of non-revocation' and the following contention:
In the Applicant's submission, the Tribunal should approach its application of the considerations prescribed by Ministerial Direction 90 on the understanding that a non-revocation decision will have the effect of permanently excluding the Applicant from Australia.
The Statement then detailed the relevant statutory provisions that gave rise to that consequence. In short, the Statement began with a preliminary point that the Tribunal should approach its responsibility of complying with the Direction on the basis that a decision not to revoke the cancellation would have the effect of permanently excluding Mr Pihere from Australia. This was a submission to the effect that the whole of the Tribunal's task should be undertaken with the legal consequence of permanent removal in mind.
The Statement then proceeded to address the primary and other considerations set out in the Direction.
Outcome in the Tribunal
Following the hearing of the review application brought by Mr Pihere, the Tribunal affirmed the decision by the delegate of the Minister not to revoke the cancellation of Mr Pihere's visa. Some 28 days later, the senior member of the Tribunal provided the Tribunal's reasons for decision.
Ground of review
Mr Pihere now brings an application in this court seeking review on the basis of alleged jurisdictional error by the Tribunal. The single ground of review is to the effect that the Tribunal failed to undertake its required task because it failed to 'consider' a significant and clearly expressed representation that non-revocation would result in the permanent exclusion of Mr Pihere from Australia being a matter that should inform the exercise of the power conferred by s 501CA(4) of the Migration Act. As will emerge, although the term 'consider' was used in the ground, the case as advanced in support of the ground was to the effect that the Tribunal had no regard to the representation despite it being a clearly articulated representation advanced in support of non-revocation.
The matters in issue
For present purposes, the following matters are common ground:
(1)one of the representations made by Mr Pihere was that if the cancellation of his visa was not revoked then he would be permanently excluded from Australia;
(2)the Tribunal was required to have regard to that representation;
(3)the requirement to have regard to the representation did not arise from the terms of the Direction;
(4)the Tribunal member was required to 'read, identify, understand and evaluate' the representation and thereby have regard to what was said and bring their mind to bear upon its content, but the weight to be afforded the representation was a matter for the Tribunal (adopting the language used by Kiefel CJ, Keane, Gordon and Steward JJ in Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 at [24]);
(5)the representation made to the Tribunal was correct in stating that the legal consequence of non-revocation of Mr Pihere's visa cancellation would be that he would be permanently excluded from Australia; and
(6)the review ground alleged a failure to have the requisite regard to the consequence of permanent exclusion and did not raise a claim to the effect that there was insufficient regard for that consequence.
Therefore, the issue between the parties is a confined one. It concerns whether it may be inferred from the reasons of the Tribunal, in the context of all the circumstances, that the Tribunal failed to have any regard to the representation that if the cancellation of his visa was not revoked the consequence would be that Mr Pihere would be permanently excluded from Australia.
An immaterial breach of a statutory condition to the exercise of decision‑making power is not jurisdictional. Where materiality is put in issue, the burden falls on the plaintiff to prove 'on the balance of probabilities the historical facts necessary to enable the court to be satisfied of the realistic possibility that a different decision could have been made had there been compliance with that condition'. The threshold for establishing materiality is not onerous. As to these matters, see Nathanson v Minister for Home Affairs [2022] HCA 26.
A submission was advanced for the Minister to the effect that the Tribunal approached the matter on the basis that the legal consequence of a decision not to revoke was that Mr Pihere would be permanently excluded. On that basis it was contended that, to the extent there was any failure to have regard to a representation to that effect, there was no possibility that it could have affected the outcome. In effect, the Minister said that the point made by the representation about the significance of permanent exclusion was part of the basis upon which the Tribunal approached the task even if it did not have it in mind for the purposes of undertaking its decision-making task.
Therefore, all turns on whether it can be concluded from the reasons of the Tribunal that the Tribunal failed to have any regard for the consequence for Mr Pihere of permanent exclusion if the decision not to revoke the visa cancellation was affirmed by the Tribunal.
Importantly, this is not a case where the Minister sought to support the Tribunal's decision on the basis that it might be inferred that a matter was not mentioned in the reasons because it was not material: as to which, see Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [69]; and also Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16 at [34] (Katzmann, Griffiths and Wigney JJ). Rather, the contention advanced is that proper consideration of the reasons leads to the conclusion that the Tribunal approached its task without any regard to the representation that non-revocation would result in Mr Pihere being permanently excluded from Australia.
Relevant principles concerning approach to the Tribunal's reasons
The court is not 'astute to discern error' when it comes to considering the meaning of reasons given by a decision-maker exercising administrative authority: Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; (2015) 258 CLR 173 at [25]; citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259. The reasons 'must be read fairly and not in an unduly critical manner': BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; (2019) 268 CLR 29 at [38] (Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ).
Parts of the reasons should not be considered out of context. The reasons of an administrative decision maker must be considered 'fairly as a whole': Plaintiff M64/2015 at [60] (French CJ, Bell, Keane and Gordon JJ), [73] (Gageler J). They must also be read and understood within the statutory context in which the decision was made: Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594 at [32], [70], [91]‑[92].
Finally, reasons given by an administrative decision maker should not be treated in the same way as judicial reasons: Wu Shan Liang at 271‑272. This reflects the fact that administrative decisions involve the consideration of the available material before the decision-maker (rather than evidence admitted according to law) and require a decision to be made that takes its substantive form and content, as well as the procedures to be adopted, from the nature of the decision-making power. Therefore, the characteristics of the decision to be made depends upon the power being exercised in the particular case. Decisions by judges, on the other hand, must all be made in a manner that exhibits the necessary characteristics of the exercise of judicial power.
The approach to be adopted in deciding whether there has been regard to a particular representation by an administrative decision maker was described by Rares and Robertson JJ in Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216; (2018) 267 FCR 643 at [45] in the following terms:
What is required is the reality of consideration by the decision-maker. On judicial review the Court must therefore assess, in a qualitative way, whether the decision‑maker has as a matter of substance had regard to the representations put: compare Fraser v Minister for Immigration and Border Protection [2014] FCA 1333 at [22] per Perram J. Additional adjectives do not assist that analysis and indeed tend to distract from it by being 'apt to encourage a slide into impermissible merit review': Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; 243 CLR 164 at [30] citing Swift v SAS Trustee Corporation [2010] NSWCA 182; 6 ASTLR 339 at [45]. Because the Court must make its own qualitative assessment, the fact that a decision-maker says they have had regard to a representation does not by itself establish that they have, as a matter of substance, had that regard. Neither does the Court ignore such a statement.
The relevant aspects of the Tribunal's reasons
After matters of introduction, the Tribunal's reasons described Mr Pihere's criminal offending. The reasons then set out a summary of Mr Pihere's evidence followed by a summary of evidence given by his mother. The latter included the following (para 18(g)):
She and her husband would have to return to New Zealand to support the Applicant if he were deported. Moving back to New Zealand would mean starting again as they both have employment in Australia and have not lived in Australia for 20 years. It would also mean leaving her other son and grandchild.
It was submitted for the Minister that it was implicit in the above summary that the Tribunal approached the matter on the basis that any such move would be permanent thereby manifesting its regard to the permanent exclusion that would flow from non-revocation. Plainly, there is an implicit recognition that removal from Australia could not be followed by Mr Pihere's return for a considerable time.
The reasons then dealt with the terms of s 501CA(4), the character test and the terms of the Direction. As to the Direction, the reasons began as follows:
The Direction provides guidance for decision-makers on how to exercise the discretion. Relevantly, it states that:
Informed by the principles in paragraph 5.2, a decision-maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.
The reasons then set out those principles which included the following:
Non-citizens who engage in, or have engaged in, criminal or other serious conduct should expect to be denied the privilege of coming to, or forfeit the privilege of staying in Australia.
I observe that the principle itself provides no indication as to the permanence or otherwise of any such forfeiture. On the face of it, the principle is directed to the immediate consequence of not being allowed to stay in Australia rather than any permanent consequence of the visa cancellation. As has been indicated, it is accepted that the legal consequence of non-revocation would be such a permanent exclusion from Australia. However, on the face of the principle as quoted, that legal consequence is not evident. The form of the principle reflects the fact that it also applies to cases where the decision-maker is considering a decision to refuse a visa under s 501. Therefore, in context, it is referring to the privilege of staying in Australia. It is not referring to whether bringing an end to that privilege as being enjoyed by a person who was in Australia would have a permanent legal consequence which would prevent a person from ever returning to Australia.
Therefore, I do not accept the submission for the Minister to the effect that the Direction was founded on the principle that permanent exclusion formed part of the principles that provided the framework for considering the primary and other considerations set out in the Direction.
Beyond quoting the principles, the reasons made no reference to their significance nor did they undertake any consideration by reference to them. They appeared as a bare recitation of the principles themselves.
The reasons then dealt with the primary and other considerations stated in the Direction. In the course of doing so, they did not advert at any point to the representation advanced in the Statement to the effect that the permanence of removal was a matter to which there should be regard in addressing all these considerations. Nevertheless, in four respects, it was submitted for the Minister that there was implicit regard to that representation.
The first respect concerns the part of the reasons that addressed the likelihood of Mr Pihere engaging in further criminal or other serious conduct. The Statement advanced a particular contention by counsel for Mr Pihere as to the way in which the overall point concerning permanent exclusion had significance for that issue. It was expressed in the following terms within the part of the Submission that was concerned with the future risk of re-offending by Mr Pihere:
… our client is now aware of the consequences of further criminal offending on his Australian migration status, and the permanent exclusion that any future visa cancellation under s 501 would cause.
This was a deployed as a reason why he was unlikely to reoffend. The part of the Statement that included the above submission was quoted by the Tribunal at the outset of the part of its reasons dealing with the likelihood of further criminal conduct (para 72) in the following way:
The Applicant's Written Submissions contend that the Applicant's risk of reoffending is low for the following reasons:
(a)our client's past criminal offending occurred when he was very young, between the ages of 13 and 18, and he has matured significantly since that time;
(b)our client's experience of imprisonment from November 2019 to November 2020 had the intended deterrent effect on our client;
(c)in the course of his imprisonment, our client completed a drug and alcohol rehabilitation course which significantly improved his insight into his problem drug and alcohol use and provided him with the tools to stop his problem alcohol use in the future;
(d)our client is now aware of the consequences of further criminal offending on his Australian migration status, and the permanent exclusion that any future visa cancellation under s 501 would cause;
(e)our client intends to return to living with his parents in Sydney and find employment in Sydney.
The Tribunal's reasons then made reference to certain remarks by the sentencing Magistrate in respect of the offending that led to Mr Pihere's imprisonment and to prison reports 'which both suggest a high-risk profile' (paras 73‑74).
The recital of these matters was then followed by reasons concerning the risk of Mr Pihere re‑offending (para 75), namely:
I have separately given careful consideration to all the relevant information regarding the Applicant's risk of recidivism. I observe that the Applicant has already been the subject of various diversions and non-custodial sentences including good behaviour bonds and community corrections orders. The Applicant has accepted that he has contravened bail conditions, breached family violence intervention orders, and failed to engage with Youth Justice. The Applicant has a history of offending under the influence of alcohol and has also admitted to using cannabis. His most recent theft offences involve him brazenly stealing alcohol from retail premises. He has a long history of substance abuse. He has been found to have 'homebrew' contraband both in prison and in detention. In prison, he was involved in a fight. I acknowledge that he has completed a 15-day drug and alcohol program whilst in prison. Whilst the Applicant expressed a wish to enter the workforce, his future plans to address his substance abuse in the community seemed inadequate. I do not consider his future prospect of returning to the family home a sufficient protective factor. Having listened to the Applicant, I am not convinced that the Applicant has the degree of insight into his substance abuse and offending as he would like the Tribunal to believe. In all the circumstances, I consider that notwithstanding the rehabilitative benefit the Applicant may have received, it falls well short of the level necessary for the Tribunal to conclude that he would be unlikely to engage in further criminal or other serious conduct.
(emphasis added, footnotes omitted)
For Mr Pihere it was submitted that the passage quoted from the Statement concerning the likely effect of Mr Pihere's awareness that he could be permanently excluded from Australia on his future offending was not addressed in the Tribunal's reasons. For the Minister it was submitted that in the context of the quoted submission, the reasoning emphasised in the emphasised words in the above quote involved a consideration of that aspect.
The second respect concerned the reasoning by the Tribunal as to the interests of Mr Pihere's nephew. It was as follows (paras 90‑91):
It was submitted on the Applicant's behalf that the interests of Antonio would be served if he were allowed the opportunity to develop a relationship with the Applicant, especially when the Applicant is his only uncle. During the course of the hearing, evidence was given that the Applicant has no contact with Antonio. Indeed, the Applicant told the Tribunal that he had only met Antonio once because Antonio's family has said that they don't want to have contact with the Applicant or other family members.
Notwithstanding the Applicant's lack of contact with Antonio, I consider that the mere presence of family in Australia - particularly as the Applicant is an only uncle - can be important for minor children. As such, I find that this primary consideration weighs slightly in favour of revocation.
The Minister submitted that as the Tribunal had found, in effect, that the prospect of the absence of the presence of Mr Pihere was a factor that 'weighs slightly in favour of revocation' it must be taken to have approached the case on the basis that non-revocation would result in permanent exclusion of Mr Pihere from Australia.
The third respect concerned the Tribunal's consideration of the effect of the evidence from Mr Pihere's mother that she and her husband (Mr Pihere's father) would give up their jobs and lives in Australia and return to New Zealand to support Mr Pihere if he was deported. As to the significance of that consequence, the Tribunal reasoned (para 121):
Having heard her evidence, I consider it reasonably likely that the Applicant's mother and father would make great sacrifices and indeed return to New Zealand to support the Applicant. It follows that the Applicant would therefore not be alone in New Zealand and without support.
The Minister submitted that it was implicit in this finding that the Tribunal proceeded on the basis that a non-revocation outcome would result in permanent exclusion.
The fourth respect concerned the reasoning as to the significance of the acceptance of that evidence. It was as follows (para 127):
In the Applicant's Written Submissions, the Applicant states that his mother and father would be adversely affected by a non-revocation decision as they would relocate to New Zealand, losing their jobs and contact with their other family in the process, which would have a negative effect on them. I accept this is the case. I accept that this would mean that the Applicant's parents are separated from their immediate family in Australia, including their only grandson.
It was submitted for the Minister that the above reasoning is necessarily founded upon a view that non-revocation would mean that Mr Pihere would be permanently excluded from Australia.
The reasoning as to the other considerations, particularly the strength, nature and duration of Mr Pihere to Australia and his links to the Australian community led to the conclusion that those matters weighed moderately in favour of revocation of the cancellation decision. In the course of that reasoning, the Tribunal said (paras 131‑133):
As per the Direction, I consider that as the Applicant has resided in Australia since he was one month old, he is entitled to a higher level of tolerance of criminal conduct.
I accept that the Applicant has positively contributed to the community, albeit briefly overall, as a student and through participation in sport. I have had regard to the associations that the Applicant would have developed through the years from such involvement.
I take into account and have had regard to all of the evidence relating to:
(d)the impact of the Applicant's removal on his family members in Australia;
(e)that the Applicant has resided in Australia since he was one month old; and
(f)the extent of the strength, duration and nature of his family or social links with people who have an indefinite right to remain in Australia.
The Tribunal's reasons concluded by listing the weight that it had attributed to various considerations and stating that it did not exercise the discretion to revoke the visa cancellation. Given the form in which the conclusion was expressed, it was not to be expected that any reference might be made at that point to the representations about permanent exclusion from Australia.
The significance of the failure to refer expressly to the representation
Given the prominence with which the representation concerning the consequence of permanent exclusion was advanced, it is most surprising that there is no express reference to the representation to be found in the reasons. As has been noted, it is accepted by the Minister that this is not a case where the failure to refer to a representation might be taken to indicate that the Tribunal had regard to it but considered that it was not persuasive. The Minister's case is to the effect that notwithstanding the prominence given to the point in the Statement, the Tribunal's reasoning provides a basis upon which it may be concluded, as a matter of inference, that the Tribunal did have regard to the representation even though it made no express reference to the point.
The problem with the submission is that it depends upon contentions to the effect that it was inherent in the logic of the reasoning adopted by the Tribunal that it approached the matter on the basis that the consequence of non-revocation would be permanent exclusion of Mr Pihere from Australia. However, the issue is not whether the Tribunal understood that to be the consequence. The issue is whether the Tribunal had regard to that aspect as a matter that might support the revocation of the visa cancellation when undertaking its whole task. The logic of the reasoning is consistent with the Tribunal understanding that the consequence of non-revocation would be exclusion of Mr Pihere for a considerable period. However, there is no reference to permanence and no reasons to indicate whether the Tribunal turned its mind to the significance or otherwise of the permanent exclusion that would follow from non-revocation. Therefore, the reasoning does not lead to the conclusion that the Tribunal turned its mind to whether particular significance ought to be given to that consequence in the particular circumstances including the specific arrangements that exist between Australia and New Zealand concerning permanent residency and the fact that Mr Pihere had spent his whole life in Australia.
Even assuming that the Tribunal was aware of that consequence and understood its permanence, the reasons do not indicate that the Tribunal turned its mind to the possible significance of the prominent representation about permanent exclusion.
Of course, it was a matter for the Tribunal to consider what if any weight was to be attributed to the consequence of permanent exclusion. However, in the present case the alleged error did not consistent of any complaint as to the quality or character of the deliberative process undertaken by the Tribunal (whether of a kind that has described by labels such as a failure to engage in an active intellectual process or a failure to give proper, genuine and realistic consideration or some other kind): as to which, see Plaintiff M1/2021 at [26]. Rather, this case was in the category of a claim that a review of the Tribunal's reasons discloses that it ignored or overlooked a substantial and clearly articulated argument being the representation as to permanent exclusion.
The fact that Mr Pihere was from New Zealand and had permanently relocated to Australia as a one month old baby, the fact that he had lived his whole life in Australia, the fact that he was still a young man, the requirement that the whole of the Direction was be applied with a higher level of tolerance of any criminal conduct by non-citizens who had lived in Australia for most of their life or from a very young age, the expectations of the Australian community, the finding that non-revocation would mean that his parents would give up their life in Australia of over 20 years to relocate to New Zealand to support him were all matters which could have assumed greater significance in the mind of a decision maker who had the permanence of the exclusion in mind. Whether they did so was a matter for the Tribunal. However, proper discharge of the Tribunal's task required it to advert to the representation. In my view, it did not do so.
On the basis of the reasons of the Tribunal I am unable to conclude by a process of inference that the Tribunal did have regard to the representation as a matter that was advanced as being relevant to the whole of the Tribunal's task. In particular, I do not accept that the recitation of the submission at para 72 of the reasons and the reasoning at para 75 is a sufficient foundation upon which to conclude that there was regard to the representation concerning permanent exclusion. On the contrary, the absence of any reference in para 75 to the limited respect in which the point was deployed is consistent with the failure at any point in the reasons to address that overall representation.
For the Minister it was submitted that the reasoning process of Bromberg J in DLJ18 v Minister for Home Affairs [2019] FCAFC 236; (2019) 273 FCR 66 at [34]‑[35] supported the contentions advanced for the Minister in the present case. In DLJ18, the case advanced was that the Minister had failed to take into account the legal consequence that the appellant would be precluded from returning to Australia. However, in that case, there had been no representation advanced as to that legal consequence. Rather, the primary basis upon which the appellant had represented to the Minister that there was 'another reason' why the visa cancellation decision should be revoked was 'the harm that would be occasioned on the appellant and his wife and three minor children by the prospective separation brought about by the appellant's removal from Australia'. In that context, Bromberg J found, by consideration of the reasons, that it was plain that the Minister accepted that the apprehended separation would be ongoing: at [32]‑[34].
It was by that pathway that his Honour concluded at [35]:
In my view, an inference is available that the Minister understood and took into account that a consequence of the non-revocation decision was that the appellant would be precluded from returning to Australia. The Minister made no express finding to that effect but so much is implicit from the reasons given.
It may be accepted that an inference of that kind may be drawn in that way. However, the fact that it was done in a different case in different circumstances does not lead to the conclusion that a like inference should be drawn in the present case. Further, the claim made in the present case is not that the Tribunal misunderstood the legal consequence but rather that it failed to have regard to a representation to the effect that the exercise of the power to revoke the visa cancellation, as guided by the Direction, be approached on the basis that the permanent consequence of non-revocation be kept in mind when taking into account each of the primary and other considerations. The alleged failure concerned whether any significance should be attributed to that permanent consequence when it came to Mr Pihere. Therefore, I do not regard the reasoning in DLJ18 as requiring the Minister's contentions in the present case to be accepted.
The passages in the Tribunal's reasons relied upon by the Minister in the present case indicate that the Tribunal was aware that removal would have consequences of some duration. However, there is no indication that it turned its mind to whether the permanence of those consequences was a matter that should form part of the process of evaluating the primary and other considerations (where relevant) or that it should be weighed as an overall consideration in the manner advanced in the Statement.
Materiality
For the Minister it was submitted that if it was established that there was no regard to the representation then, for reasons that have already been considered, it should be concluded that the Tribunal had regard to the consequence of permanent exclusion in reaching its decision. For reasons that I have given, I do not accept that there was any such regard by the Tribunal. In that respect, the present case is unlike DLJ18 where the Court found that the Minister had taken into account the consequence of preclusion from returning to Australia with the consequence that it did not matter if the Minister did so on the basis that there had been a representation to that effect or on the basis that it would be a practical consequence of removal without realising that that such a consequence was a legal one. In such a case, the failure to take account of the additional point that preclusion from returning was also a legal consequence could not be said to be a material error because it was an error that could have made no difference to the decision made: at [37].
In the present case, for reasons I have given, I accept that the Tribunal did not advert to the representation or its significance.
It was also submitted that the failure to consider the representation was not material because cl 5.2(2) of the Direction was said to require that matter to be brought to account as a principle that formed part of the framework within which decision-makers should approach their task of deciding whether to revoke a mandatory cancellation of a visa under s 501CA. I have already indicated that I do not accept that submission.
Conclusion and costs
For those reasons, there was a failure by the Tribunal of the kind alleged. Therefore, the decision of the Tribunal should be set aside and the matter remitted to the Tribunal. It was accepted that costs should follow the event. There should be an order that the Minister pay the costs of Mr Pihere.
I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Colvin. Associate:
Dated: 11 November 2022
2
16
2