Pihere v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

In the case of Pihere v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, the applicant, Mr Pihere, sought judicial review of a decision by the Migration Review Tribunal to affirm the decision of the Minister's delegate not to revoke the cancellation of his visa under s 501CA(4) of the Migration Act 1958 (Cth). The Tribunal's decision was required to comply with Direction 90, which designates 'primary' and 'other' considerations for decision-makers to have regard to when exercising their discretion in cases where the visa applicant does not satisfy the character test. Mr Pihere argued that the Tribunal failed to have regard to his clearly articulated representation that non-revocation would result in his permanent exclusion from Australia. This representation was a central contention in his statement of issues before the Tribunal, which argued that the Tribunal should approach its application of the considerations in Direction 90 on the basis that non-revocation would permanently exclude him from Australia. However, the Tribunal did not reference this claim in its reasons for decision. The Minister contended that the Tribunal implicitly accepted the consequence of permanent exclusion, but it was unclear whether the Tribunal brought its mind to bear on this representation in exercising its discretion.

The court had to decide whether the Tribunal failed to undertake its required task by not considering Mr Pihere's representation that non-revocation would result in his permanent exclusion from Australia. The court considered the legal principles set out in DLJ18 v Minister for Home Affairs [2018] FCAFC 236, which held that a decision-maker must consider all relevant matters, including those specifically drawn to their attention, and give them appropriate weight. The court also had to consider whether the failure to consider the representation was material. The court found that the Tribunal's failure to consider the representation was a jurisdictional error, as it was a significant and clearly expressed representation that should have informed the exercise of the power conferred by s 501CA(4) of the Migration Act. The court also rejected the submission that the failure to consider the representation was not material because it was required to be taken into account as a principle that formed part of the framework within which decision-makers should approach their task.

The court concluded that there was a failure by the Tribunal of the kind alleged, and the decision of the Tribunal should be set aside and the matter remitted to the Tribunal. The court also ordered that the Minister pay Mr Pihere's costs of and incidental to the application to be assessed by a registrar on a lump sum basis if not agreed. The court's decision highlights the importance of decision-makers considering all relevant matters, including those specifically drawn to their attention, and giving them appropriate weight when exercising their discretion.