TPTN v Minister for Immigration, Citizenship and Multicultural Affairs

Case [2024] FCAFC 82

FEDERAL COURT OF AUSTRALIA

TPTN v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 82

Appeal from: TPTN v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 788
File number(s): QUD 315 of 2022
Judgment of: COLLIER ACJ, MEAGHER AND HORAN JJ
Date of judgment: 20 June 2024
Catchwords: MIGRATION – where Administrative Appeals Tribunal decided not to revoke the cancellation of the appellant’s visa under s 501CA(4) of the Migration Act 1958 (Cth) – where Tribunal took into account offences committed by the appellant as a child – where appellant taken never to have been convicted of juvenile offences by ss 85ZR and 85ZS of Crimes Act 1914 (Cth) – where conceded that Tribunal erred in having regard to appellant’s juvenile offending – whether error was material to Tribunal’s decision – where there is a realistic possibility that the Tribunal’s decision might have been different if the error had not occurred – appeal allowed
Legislation:

Crimes Act 1914 (Cth) ss 85M(1), 85ZR, 85ZS

Migration Act 1958 (Cth) ss 499, 501(2), 501(3A), 501(7)(c), 501CA

Federal Court Rules 2011 (Cth) r 36.05

Children (Criminal Proceedings) Act 1987 (NSW) ss 14(1), 14(1)(a), 15

Youth Justice Act 1992 (Qld) s 184(2)

Cases cited:

Au v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 295 FCR 315

Boensch v Pascoe (2019) 268 CLR 593

Lesianawai v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 6; 98 ALJR 475

LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; 98 ALJR 610

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Thornton (2023) 276 CLR 136

TPTN and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] AATA 262

TPTN v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 788
Division: General Division
Registry: Queensland
National Practice Area: Administrative and Constitutional Law and Human Rights
Number of paragraphs: 73
Date of last submissions: Appellant: 8 March 2024
First Respondent: 22 March 2024
Date of hearing: 23 November 2023
Counsel for the Applicant: Dr J Donnelly
Solicitor for the Applicant: Zarifi Lawyers
Counsel for the First Respondent: Mr B McGlade
Solicitor for the First Respondent: Minter Ellison

ORDERS

QUD 315 of 2022
BETWEEN:

TPTN

Appellant
AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:

COLLIER ACJ, MEAGHER AND HORAN JJ

DATE OF ORDER:

20 JUNE 2024

THE COURT ORDERS THAT:

1.The appellant be granted leave to rely on the Further Amended Notice of Appeal dated 29 October 2023.

2.The appeal be allowed.

3.Order 3 of the Orders made on 15 June 2022 in proceeding QUD 72 of 2022 be set aside, and in lieu thereof it be ordered that:

(a)the decision of the second respondent made on 14 February 2022 be set aside;

(b)the appellant’s application for review be remitted to the second respondent, differently constituted, to be determined according to law;…

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AGLC
TPTN v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 82
Case
[2024] FCAFC 82
Decision Date

CaseChat Overview and Summary

The appellant in TPTN v Minister for Immigration, Citizenship and Multicultural Affairs appealed against the decision of the Administrative Appeals Tribunal (AAT) which declined to revoke the cancellation of the appellant’s visa under section 501CA(4) of the Migration Act 1958 (Cth). The appellant argued that the AAT erred by considering his juvenile offences, which, under sections 85ZR and 85ZS of the Crimes Act 1914 (Cth), should not have been taken into account. The appeal raised several grounds for review, including the interpretation of statutory provisions and the consideration of irrelevant factors in the AAT's decision-making process.

The primary legal issue before the court was whether the AAT's consideration of the appellant's juvenile offences, which was contrary to the Crimes Act, constituted a material error that affected the outcome of the decision. The court examined the principles established by the High Court in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, which clarified that a jurisdictional error occurs when a decision-maker takes into account an irrelevant consideration forbidden by statute. The court needed to determine if this error was material to the AAT's decision, meaning there was a realistic possibility that the outcome might have been different had the error not occurred.

The court found that the AAT's consideration of the appellant's juvenile offences was indeed an error as it contravened the statutory prohibition under the Crimes Act. The court further concluded that the error was material because there was a realistic possibility that the outcome could have been different if the AAT had not considered these juvenile offences. Given that the Tribunal's decision was influenced by an irrelevant consideration, the court found that the error met the threshold of materiality, thereby justifying the appeal.

The court allowed the appeal and set aside the AAT's decision. It ordered that the appellant's application for review be remitted to the AAT, differently constituted, to be determined according to law. Additionally, the court ordered the Minister to pay the appellant's costs of the appeal as agreed or taxed. This decision underscores the importance of strictly adhering to statutory prohibitions and the consequences of failing to do so in administrative law contexts.

Orders

Orders of the court

1. The appellant be granted leave to rely on the Further Amended Notice of Appeal dated 29 October 2023.

2. The appeal be allowed.

3. Order 3 of the Orders made on 15 June 2022 in proceeding QUD 72 of 2022 be set aside, and in lieu thereof it be ordered that:

(a) the decision of the second respondent made on 14 February 2022 be set aside;

(b) the appellant’s application for review be remitted to the second respondent, differently constituted, to be determined according to law; and

(c) the first respondent pay the appellant’s costs of the appeal as agreed or taxed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

In the present appeal, in the light of the decision in Lesianawai, the Minister no longer seeks to distinguish s 14(1)(a) of the Children Proceedings Act from the provisions of the Queensland Youth Justice Act considered in Thornton. The Minister now accepts that the Tribunal was forbidden by ss 85ZR and 85ZS of the Crimes Act from taking into account the appellant’s juvenile offending as a 15‑year old and that, in so doing, the Tribunal had regard to an irrelevant consideration. However, the Minister maintains that the error was not material to the Tribunal’s decision to affirm the non-revocation of the cancellation of the appellant’s visa, and therefore did not result in the Tribunal having fallen into jurisdictional error.Was the error material to the Tribunal’s decision? As was recently stated LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; 98 ALJR 610 at [2] (Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ), “[j]urisdictional error can refer to breach of an express or implied condition of a statutory conferral of decision-making authority which results in a decision made in the purported exercise of that authority lacking the legal force attributed to exercise of that authority by statute”. This can include, relevantly, having regard to an irrelevant consideration which the statute forbids the decision-maker from taking into account in the exercise of the statutory power. In most cases, such an error will only be jurisdictional if it was material to the decision that was in fact made, “in the sense that there is a realistic possibility that the decision that was made in fact could have been different if the error had not occurred”: LPDT at [7] (emphasis in original). This “threshold of materiality” was elaborated by the High Court in LPDT in the specific context of a decision under s 501CA(4) of the Migration Act not to revoke a visa cancellation. The plurality stated that whether an error has occurred and whether that error was material are both “wholly backward-looking” questions that are “to be answered by reference to the decision that was made and, depending on the nature of the error, how that decision was made”: LPDT at [9]-[10]. Whether or not an error is material “is determined by inferences drawn from the evidence adduced on the application”: LPDT at [13]. The plurality summarised the principles drawn from the High Court’s previous decisions on the question of materiality as follows: LPDT at [14]-[16].The question in these cases is whether the decision that was in fact made could, not would, “realistically” have been different had there been no error. “Realistic” is used to distinguish the assessment of the possibility of a different outcome from one where the possibility is fanciful or improbable. Though the applicant must satisfy the court that the threshold of materiality is met in order to establish that the error is jurisdictional, meeting that threshold is not demanding or onerous.What must be shown to demonstrate that an established error meets the threshold of materiality will depend upon the error. In some cases, it will be sufficient to show that there has been an error, and that the outcome is consistent with the error having affected the decision. ... Importantly, a court called upon to determine whether the threshold has been met must be careful not to assume the function of the decision-maker: the point at which the line between judicial review and merits review is crossed may not always be clear, but the line must be maintained. This case affords an example.In sum, unless there is identified a basis on which it can be affirmatively concluded that the outcome would inevitably have been the same had the error not been made, once an applicant establishes that there has been an error and demonstrates that there exists a realistic possibility that the outcome of the decision could have been different had that error not been made, the threshold of materiality will have been met (and curial relief will be justified subject to any issue of utility or discretion). (Citations omitted, emphasis in original.)

Ratio Decidendi

Legal Principle Established

The Tribunal concluded that the combined weight of the first, second and fourth primary considerations against revocation of the visa cancellation outweighed all other considerations. As a consequence, the Tribunal did not “exercise the discretion to revoke the mandatory cancellation of the applicant’s visa” and affirmed the delegate’s decision.CONSIDERATION As set out above, the appellant advanced three grounds of appeal, each of which raised a new ground of review that was not argued before the primary judge. First, the appellant submitted that the Tribunal erred by treating s 501CA(4)(b)(ii) of the Migration Act, which requires the Tribunal to be satisfied “that there is another reason why the original decision should be revoked”, as involving an exercise of discretion rather than a state of satisfaction, relying on the decision in Au v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 295 FCR 315 at [51]-[52] (Derrington J, Perry J agreeing), [167]-[169] (O’Sullivan J). Secondly, the appellant submitted that the Tribunal erred in applying Direction 90, in so far as it was required to have regard to acts of “family violence” engaged in by the non-citizen, by failing to consider or make any finding as to whether Ms BW was a member of the appellant’s family at the relevant times. Thirdly, the appellant submitted that the Tribunal erred by taking into account an irrelevant consideration, namely the offences committed by him as a child, contrary to s 14(1) of the Children Proceedings Act as picked up by ss 85ZR and 85ZS of the Crimes Act: see Thornton and Lesianawai. As indicated at the outset of these reasons, the third ground is dispositive of the appeal.Ground three – Thornton and LesianawaiThe Tribunal’s error It is common ground that the Tribunal took into account the offences of assault occasioning actual bodily harm and affray that were committed by the appellant as a 15‑year old, for which he was dealt with by the Campbelltown Children’s Court in 2005 and received a six-month bond in respect of each offence: Tribunal’s reasons at [7], [44], [152]. Section 85ZR(2) of the Crimes Act provides:(2) Despite any other Commonwealth law or any Territory law, where, under a State law or a foreign law a person is, in particular circumstances or for a particular purpose, to be taken never to have been convicted of an offence under a law of that State or foreign country:(a) the person shall be taken, in any Territory, in corresponding circumstances or for a corresponding purpose, never to have been convicted of that offence; and(b) the person shall be taken, in any State or foreign country, in corresponding circumstances or for a corresponding purpose, by any Commonwealth authority in that State or country, never to have been convicted of that offence. Section 85M(1) of the Crimes Act provides that a person shall be taken to have been convicted of an offence if, among other things, “the person has been charged with, and found guilty of, the offence but discharged without conviction”.