Wu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2025] FedCFamC2G 244
•28 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Wu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2025] FedCFamC2G 244
File number: MLG 4158 of 2019 Judgment of: DEPUTY CHIEF JUDGE MERCURI Date of judgment: 28 February 2025 Catchwords: MIGRATION – Application for judicial review – decision of the Administrative Appeals Tribunal as it was - subclass 189 skilled independent visa – where the applicant claimed that the Tribunal failed to consider the best interests of the applicant’s child in cancelling the applicant’s visa under PAM3 and in accordance with the Convention on the Rights of the Child – finding that the Tribunal failed to give consideration to the best interests of the child – finding that the failure to consider the child’s best interests is material in the circumstances – jurisdictional error established – writ of certiorari issued – order for costs. Legislation: Migration Act 1958 (Cth), ss 48, 101, 103, 107, 109, 140, 351 and 501
Migration Regulations 1994 (Cth) reg. 2.41
Cases cited: COT15 v Minister for Immigration and Border Protection and Another (No 1) [2015] FCAFC 190
Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 213
G v Minister for Immigration and Border Protection [2018] FCA 1229
Fu v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 964
Jabbour v Secretary, Department of Home Affairs [2019] FCA 452
Minister for Immigration v Khadgi [2010] FCAFC 145
Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16
MQGT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 215
WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184
NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38
Division: Division 2 General Federal Law Number of paragraphs: 136 Date of last submissions: 18 October 2024 Date of hearing: 1 October 2024 Place: Melbourne Counsel for the Applicants: Ms Costello KC Solicitor for the Applicants: FCG Legal Pty Ltd Counsel for the First Respondent: Mr Murano Solicitor for the First Respondent: Clayton Utz ORDERS
MLG 4158 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: LEI WU
First Applicant
ZHIQIANG LYU
Second Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
DEPUTY CHIEF JUDGE MERCURI
DATE OF ORDER:
28 FEBRUARY 2025
THE COURT ORDERS THAT:
1.A writ of certiorari issue quashing the second respondent’s decision made on 17 October 2019 in its Migration & Refugee Division matter number 1710840.
2.There be an order in the nature of prohibition prohibiting the respondents from giving effect to that decision.
3.A writ of mandamus issue requiring the second respondent to rehear and determine according to law the applicant’s application for review dated 22 May 2017 of the decision of the delegate of the first respondent.
4.The first respondent pay the applicant’s costs in a sum to be fixed if not agreed.
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
DEPUTY CHIEF JUDGE MERCURI:
INTRODUCTION
Before the court is an application for judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) made on 17 October 2019, which affirmed a decision of a delegate of the first respondent (‘the Minister’) to cancel the first applicant’s subclass 189 – skilled - independent visa (‘the visa’).
BACKGROUND
The first applicant is a citizen of the People’s Republic of China, who arrived in Australia in August 2008.[1] The second applicant is her husband. The applicants have a child together, born in April 2019.[2]
[1] Court book at page 36.
[2] Court book at page 158; Court book at page 380.
On 17 October 2014, the first applicant was granted the visa, and the second applicant was listed as a dependent.[3]
[3] Court book at page 36.
On 21 April 2017, the applicants were sent a Notice of Intention to Consider Cancellation (‘NOICC’) of the visa by the Department of Immigration and Border Protection (‘the Department’).[4] The notice referred to non-compliance with sections 101(b) and 103 of the Migration Act 1958 (Cth) (‘the Act’).
[4] Court book at pages 11 to 16.
On 4 May 2017, the first applicant wrote to the Department, objecting to the cancellation of the visa.[5] She wrote:
…I am not aware of the issue raised by the Department and does not agree that my visa should be cancelled. I have been in Australia nearly ten years and settled down completely in the community. I have established my business in Australia and building connection with the local businesses and customers. I believes I have contributed to be part of the society and obey all the laws.
The decision made by the Department is not simply affecting myself but also my business in Australian as well as employees…
…I wish the department to review my case again and reconsider the decision of cancellation.
[5] Court book at page 30.
On 15 May 2017, the applicant was notified of the delegate’s decision to cancel the visa.[6] The delegate’s decision record confirmed that the basis of the decision was the first applicant’s non- compliance with sections 101 and 103 of the Act by virtue of their finding that information contained within the IELTS Certificate provided with the visa application was incorrect. Namely, the delegate considered that the first applicant did not sit the IELTS test herself and the results were obtained by using an imposter.[7]
[6] Court book at pages 32 to 43.
[7] Court book at page 37.
On 22 May 2017, the applicants applied for review of the delegate’s cancellation decision by the Tribunal.[8]
[8] Court book at pages 49 to 51.
It transpired that the delegate who made the decision did not hold the appropriate delegation to cancel the applicant’s visa at the time of the decision. Various correspondence was exchanged between the applicant and the Department about this issue and the impact of it on the cancellation decision.
On 5 October 2018, the applicants were invited to attend a hearing before the Tribunal, scheduled for 23 October 2018.[9]
[9] Court book at page 83.
On 22 October 2018, the applicants’ newly appointed representative provided to the Tribunal an Appointment of Authorised Representative form together with a letter, seeking assurance by the Tribunal that the hearing in this matter would not go ahead until the ‘delegation issue’ was resolved by the court.[10] On the same day, the Tribunal postponed the hearing, noting that the ‘Member is unable to conduct the hearing on that day’.[11]
[10] Court book at pages 103 to 107.
[11] Court book at pages 111 to 114.
Ultimately, that issue was resolved as a result of litigation in an unrelated proceeding. The consequence of this was that the Tribunal was able to review the cancellation decision.
On 23 August 2019, the applicants were again invited to attend a hearing before the Tribunal, scheduled for 26 September 2019.[12]
[12] Court book at pages 137 to 139.
The applicants’ representatives sent correspondence, with submissions and further documentation, to the Tribunal on 4 September 2019 and 19 September 2019.[13]
[13] Court book at pages 148 to 150 and 155 to 166.
The Tribunal hearing took place as scheduled, with the applicants and their representative present, as well as a Mandarin interpreter assisting.[14] Post-hearing submissions, with attachments, were then provided to the Tribunal by the applicants’ representatives on 15 October 2019.[15]
[14] Court book at page 387.
[15] Court book at pages 396 to 399.
On 23 October 2019, the Tribunal notified the applicants of its decision to affirm the delegate’s cancellation decision dated 17 October 2019.[16]
[16] Court book at pages 500 to 520.
TRIBUNAL’S DECISION
The Tribunal’s decision record is set out at pages 506 to 520 of the court book.
The Tribunal commences its decision by providing background to the matter and the delegate’s cancellation decision at paragraphs [1] and [2].
At paragraph [3], the Tribunal set out the limits of its jurisdiction, noting that the only decision before it related to the first applicant, stating that:
… As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to the other applicants.
At paragraphs [7] to [15], the Tribunal provided the procedural history of the matter from the time that the applicants lodged an application for review of the delegate’s decision. The Tribunal then went on to describe the explanation provided by it to the first applicant in relation to the ‘delegation issue’ before then summarising the questions asked by it, the first applicant’s evidence, and the second applicant’s evidence at paragraphs [16] to [33].
At paragraphs [35] to [38] the Tribunal had regard to the post-hearing submissions provided on 15 October 2019.
The Tribunal then went on to consider the claims and evidence, asking itself ‘should the visa be cancelled?’, having noted that the cancellation power under section 109 of the Act is a discretionary one. The Tribunal confirmed that it was to have regard to the applicant’s response and to any ‘prescribed circumstances’ as set out in regulation 2.41 of the Migration Regulations 1994 (Cth) (‘the Regulations’), as follows:
·The correct information;
·The content of the genuine document (if any);
·Whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document;
·The circumstances in which the non-compliance occurred;
·The present circumstances of the visa holder;
·The subsequent behaviour of the visa holder concerning his or her obligations under subdivision C of Division 3 of Part 2 of the Act;
·Any other instances of non-compliance by the visa holder known to the Minister;
·The time that has elapsed since the non-compliance;
·Any breaches of the law since the non-compliance and the seriousness of those breaches; and
·Any contribution made by the holder to the community.
The Tribunal noted, at paragraph [46], that the above factors do not represent an exhaustive statement of the circumstances that might properly be considered relevant,[17] and that regard may also be had to government policy such as PAM3 ‘General visa cancellation powers’.
[17] Citing Minister for Immigration and Citizenship v Khadgi [2010] FCAFC 145; (2010) 190 FCR 248.
After considering the ‘prescribed circumstances’ as set out above, the Tribunal then considered the following:
(a)Whether there are persons in Australia whose visas would, or may, be cancelled consequentially;
(b)Whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation; and
(c)Whether there are mandatory legal consequences to a cancellation decision.
With respect to the consideration referred to at paragraph [23(c)] above, the Tribunal stated:[18]
75.If the applicant’s visa is cancelled the applicant will become an unlawful noncitizen and will be liable to be detained in immigration detention under section 189 of the Migration Act or removed from Australia under section 198 of the Migration Act in the event that the applicant did not arrange her own departure from Australia. Further to this the applicant may be precluded from making an application for a further visa for a period of 3 years pursuant to Public Interest Criterion.
[18] Tribunal decision record dated 17 October 2019 at paragraph [75].
Ultimately, the Tribunal found that, ‘having regard to all the relevant circumstances’, the applicant’s visa should be cancelled, thus affirming the delegate’s decision. [19]
[19] Tribunal decision record dated 17 October 2019 at paragraph [82].
PROCEEDINGS IN THIS COURT
On 26 November 2019, the applicants filed an application for judicial review of the Tribunal’s decision. Having been granted leave to do so by a Registrar of this court on 10 March 2020, the applicants filed an amended application on 5 August 2024.[20]
[20] Orders of Registrar Carlton dated 10 March 2020.
The hearing in this matter took place before me in person on 1 October 2024, where King’s counsel for the applicant and counsel for the Minister made oral submissions.
As a result of an issue which arose during oral submissions, orders were made at the hearing for the filing of further evidence by the parties in relation to the status of applicants under the public interest criteria (‘PIC’), item 4014(5). The timetable for the filing of this evidence was extended by consent orders made in chambers on 14 October 2024.[21]
[21] See Orders of Deputy Chief Judge Mercuri dated 14 October 2024.
The applicants filed further submissions in relation to this discrete issue on 9 October 2024 and the Minister’s further submissions followed on 18 October 2024.
GROUNDS OF REVIEW
In the amended application filed on 5 August 2024, the applicants raise two grounds of review, which will be dealt with in detail below.
Ground 1
By ground 1, the applicants claims that:
1. In purporting to consider whether to cancel the visa under s 109(1) of the Migration Act 1958 (Cth) (Act) and each of the prescribed circumstances in reg 2.41 of the Migration Regulations 1994 (Cth) the Tribunal erred by:
a.failing to have regard to a critical factor put forward by the applicant as to why the visa should not be cancelled, being the employment interests of the current and future local employees of the enterprises carried on by her and her husband (the Employment Factor);
b.failing to consider the Employment Factor cumulatively with other factors that countered the applicant’s provision of incorrect information and a bogus document;
c.finding that the first applicant’s property acquisition and establishment of a business was as a result of fraud, which was unreasonable and/or unintelligible and had the effect that the Tribunal failed to consider the prescribed circumstances of the applicant’s present circumstances; and
d.failing to consider the subsequent behaviour of the first applicant concerning her obligations under subdivision C of Div 3 of Part 2 of the Act. The Tribunal said it gave the consideration some weight but the reasoning was so cursory as to miss the point of the factor,
and the Tribunal thereby failed to accord procedural fairness and/or constructively failed to carry out its jurisdiction by failing to consider mandatory considerations.
The applicant relied upon the written submissions in support of ground 1. At the hearing, King’s counsel for the applicant did not expand upon those written submissions.
In the applicant’s written submissions, the applicant said that in determining whether to cancel the visa under section 109 of the Act, the Tribunal was required to consider the prescribed matters in regulation 2.41 of the Regulations. It is not in dispute that one of those prescribed matters is the ‘present circumstances’ of the applicant.
In essence, whilst acknowledging that the Tribunal did refer to the applicant’s present circumstances, it is submitted that at [58] the Tribunal did little more than ‘pay lip service’ to those circumstances and that its consideration at [68] was ‘hollow and incomplete’.[22]
[22] Applicant’s submissions filed on 18 July 2024, paragraph 6.
In addition, the applicant submits that:[23]
The Tribunal dismissed the applicant’s present circumstances by wrongly denigrating the circumstances as merely being a consequence of migration fraud.
[23] Applicant’s submissions filed on 18 July 2024, paragraph 6.
The applicant further submits that the Tribunal finding that the applicant’s acquisition of property and the establishment of a business was tainted by fraud was unreasonable and unintelligible, such that it evidences that the Tribunal failed to consider the applicant’s present circumstances, being a matter which it had to consider in determining whether to exercise its discretion to cancel the applicant’s visa. The applicant said that ‘The Tribunal closed off its consideration of the present circumstances on the unreasonable and illogical basis that the circumstances were merely a consequence of the migration fraud.’[24]
[24] Applicant’s written submissions filed on 18 July 2024, paragraph 6.
It is further submitted for the applicant that another circumstance that the Tribunal was required to consider under regulation 2.14 was the applicant’s subsequent behaviour concerning her obligations under Subdivision C of Division 3 of Part 2 of the Act. The applicant submits that the Tribunal did not make any reference to the fact that the applicant acknowledged that she had done the wrong thing and showed remorse for her actions. Again, whilst accepting that the Tribunal made reference to these matters at paragraph [65] and [66], those references, according to the applicant, were so cursory that they do not evidence that the Tribunal gave proper consideration to them as required.
In addition, the applicant said that the Tribunal needs to engage in an active intellectual process in order to demonstrate that it has given the requisite level of consideration required under the Act.[25]
[25] Fu v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 964 at [122] and the cases referred to therein.
A similar argument was advanced in relation to how the Tribunal treated a further consideration in regulation 2.41, namely ‘any contribution made by the holder to the community’. The applicant says the Tribunal failed to consider the applicant’s contribution to the community, namely by establishing a business which now employs 11 people, including 6 staff who are Australian permanent residents or citizens and a business which provides a service to numerous customers in the local community and contributes significant taxation to the Australian Taxation Office.
It is submitted for the applicant that the applicant had provided significant information about the impact on the community made by the business that she had established with her husband including detailed submissions about the impact on their staff, customers and suppliers. The applicant submits that the cursory way in which this information was dealt with by the Tribunal evidences the Tribunal’s failure to properly consider this matter.
At paragraph 13 of the applicant’s written submissions filed on 18 July 2024, the applicant states:
13.The Tribunal failing to consider the Employment Factor cumulatively with other factors that countered the applicant’s provision of incorrect information and a bogus document.
For the following reasons, ground 1 is not made out and does little more than invite the court to engage in impermissible merits review.
It is not in dispute that the Tribunal was required to consider the criteria prescribed by regulation 2.14 in determining whether to cancel a visa under section 109. In doing so, the Tribunal is required to engaged in an active intellectual process but this does not require the Tribunal to refer to every piece of evidence or to make findings of fact on every issue put to it. In Minister for Immigration v Khadgi [2010] FCAFC 145, the Court said:
68.There are 10 criteria specified in reg 2.41. The list of factors set out in reg 2.41 is not an exhaustive statement of the factors that the Minister might properly consider to be relevant in any given case. That list contains all of the mandatory criteria and, therefore, constitutes a comprehensive statement of those considerations which must be taken into account. There is nothing in the language of reg 2.41, the terms of s 109 or the context in which reg 2.41 is to be applied which requires that the Minister should give any particular weight to any one factor or group of factors nor is there any indication in any of those materials that one or more factors are to be accorded primacy. The weight to be given to any one factor or group of factors is entirely a matter for the Minister and will vary from case to case. Further, in any given case, facts and matters which might properly be raised under one subparagraph of the regulation may also be quite properly be raised under other subparagraphs of the regulation.
The Court went on to say that whilst it is appropriate for the court to look at the Tribunal’s reasons to see if they evidence appropriate consideration has been given to the mandatory criteria in regulation 2.14 ultimately:
71.The question of whether or not a decision-maker has had regard to all mandatory criteria is a question of fact. That question will usually have to be determined by the Court undertaking a close analysis of the decision-maker’s reasons without the benefit of other evidence, for example, from the decision-maker. As the Full Court said in SZDXZ v Minister for Immigration and Citizenship …:
“… However, the appellants are obliged to do more than point to material capable of supporting an inference that the Tribunal did not consider the Police letter. It is necessary for the appellants to demonstrate, that having regard to all of the evidence and other material before the court, it would be appropriate to draw that inference; that is, the appellants must demonstrate, on the balance of probabilities, that the Tribunal did not consider the Police letter.”
In this case, by ground 1(a) the applicants claim that the Tribunal failed to consider the employment interests of the employees employed, now and into the future, by the applicant’s business. A fair reading of the Tribunal’s reasons, however, makes it apparent that it in fact was aware of and did consider this matter. There are numerous references in the Tribunal’s decision record to the submissions made by the applicant about the business established by her and her husband, including the number of employees, the contribution to the local community both in terms of suppliers and customers and the growth in the business over its operation. The Tribunal also made reference to the applicant’s claims that a decision to cancel her visa would cause the business to cease trading with consequential impacts on employees, customers and suppliers.
At paragraph [60], the Tribunal noted that after being granted permanent residence in Australia, the applicant began to invest in Australia, including through the establishment of the stair installation business. In this context, the Tribunal noted that since its inception, this business has grown and ‘currently employs a number of Australian permanent residents’.[26] The Tribunal also referred to other evidence about the ongoing and future commitments that the applicant and her husband had committed to or were exploring. At [62] the Tribunal again referred to further evidence given by the applicant about the substantial commitment that the applicant and her husband had made to their business in Australia and their submission that significant weight ought to be given to this. Also at [62], the Tribunal referred to the applicant’s submission about the detrimental impact on contracted customers and suppliers if the applicant’s visa was cancelled.
[26] Tribunal decision record dated 17 October 2019, paragraph [60].
At paragraph [71] of the Tribunal’s decision record, it expressly records:
The evidence before the Tribunal indicates that the applicant and her husband have established a staircase installation business and that the business has continued to expand since its establishment.
A fair reading of the Tribunal’s reasons makes it clear that the Tribunal did consider the ‘Employment Factor’ (as defined in the applicant’s submissions). As pointed out by the first respondent at paragraph [18] of the first respondent’s written submissions filed on 6 August 2024:
·the Tribunal was aware of the applicant’s submissions – at [25] it referred to the ‘substantial prehearing evidence provided pertaining to the applicant’s business in Australia’;
·at [26], the Tribunal referred to the applicant’s husband’s qualifications as an Aircraft Engineer in China and the experience he obtained in Australia in relation to the manufacture of staircases whilst in Australia (the latter of which was again referenced in [32]);
·at [28] the Tribunal refers to the number of contracts the business has to supply staircases, future projects in the pipeline and the fact that the applicant paid significant taxes; and
·at [30], the Tribunal references the applicant’s claim that if the visa is cancelled, the applicant and her husband would need to close the business.
A fair reading of the Tribunal’s findings at [71] in context, supports a finding that the Tribunal did have regard to the Employment Factor claims made by the applicant. The Tribunal was aware of the applicant’s claims as set out above. The general reference to ‘any contribution made by the holder to the community’ encompasses all of the matters set out above. It was not necessary for the Tribunal to specifically refer to each of those matters again.
Further at [62] the Tribunal expressly considered the business commenced by the applicant and her husband and noted that there was potential for the business to further expand and continue to employ local staff. The Tribunal also noted that the applicant claimed that a cancellation of the applicant’s visa would also have a detrimental impact on the contracted customers of the applicant’s business as well as suppliers. Similarly, at [81], the Tribunal had regard to the hardship that the applicant would face in selling the business as well as the impact on suppliers.
Having regard to each of these matters, when read as a whole and fairly and without a keen eye to error, that ground 1(a) is not made out.
By ground 1(b), the applicant claims that the Tribunal failed to consider the employment interests of the current and future local employees of the applicant’s business cumulatively with other factors that weighed against the fact that the applicant provided incorrect information and a bogus document.
At [71], the Tribunal in discussing the contributions made by the applicant to the community found that these factors weighed in favour of the applicant.
At [81], the Tribunal then expressly said:
81.The residential property investment and the establishment of a business by the applicant and her husband and the consequent hardship in selling the business and the effect on suppliers along with the recent birth of their child in April 2019 are factors which when cumulatively considered are not enough to counter the seriousness of the incorrect information and the provision of a bogus document.
The Tribunal weighed those factors in favour of the applicant with the significant and serious action by the applicant in providing incorrect information and a bogus document, concluding that on balance the later outweighed the former. This finding was reasonably open to the Tribunal and by this aspect of ground 1, the applicant does little more than seek impermissible merits review.
This aspect of ground 1 therefore fails.
Similarly, ground 1(c) also seeks impermissible merits review. The Tribunal found that the applicant’s property acquisition and the establishment of a business was the result of fraud in that neither would have been possible had the applicant not obtained a visa by providing incorrect information and a bogus document. That finding was reasonably open on the material before the Tribunal and there is no illogicality or irrationality in the findings made. The fact that a different decision maker may have weighed those matters differently does not result in the finding made in this instance being unreasonable or irrational. So much is evident from reading [64] in its entirety.
Contrary to the applicant’s assertion, read fairly, the Tribunal did not merely pay ‘lip service’ to the criteria in regulation 2.14(e) as alleged. It considered the applicant’s submissions. It identified those matters which weighed in the applicant’s favour but found that those factors largely were available to the applicant because the applicant had provided incorrect information and a bogus document. When viewed in this way, it was reasonably open to the Tribunal to conclude that the balance weighed against finding in the applicant’s favour.
For these reasons, this aspect of ground 1 also fails.
Finally, by ground 1(d), the applicant claims that the Tribunal erred by failing to consider the subsequent behaviour of the first applicant concerning her obligations under Subdivision C of Division 3 of Part 2 of the Act. The applicant claims that whilst the Tribunal said that it gave these considerations some weight, the reasoning was so cursory as to miss the point of the factor.
Remorse and regret are not factors which arise under Subdivision C of Division 3 of Part 2 of the Act. The provisions in that subdivision set out the obligations for a visa holder not to give incorrect information or bogus documents in connection with a visa application and provide the consequences for doing so. It does not provide that mitigating factors such as remorse or regret will be taken into account in determining what ought to happen if a visa applicant does give incorrect information or provide a bogus document.
But in any event, it is submitted for the Minister that even if the Tribunal were to have regard to the applicant’s remorse or regret under Subdivision C of Division 3 of Part 2 of the Act, the Tribunal did have regard to the applicant’s ‘comprehensive response to the NOICC’[27] and the fact that the applicant had co-operated throughout the cancellation process. It is submitted that the fact that the Tribunal said it placed some weight on this in the applicant’s favour, implicitly includes a finding that the Tribunal had regard to the regret that the applicant had expressed.
[27] Tribunal decision record dated 17 October 2019, paragraph [65].
There is much force to this submission. It is relevant to note that section 107 is found in Subdivision C of Division 3 of Part 2 of the Act. That section relevantly provides the statutory basis for the issuing of the NOICC in circumstances where the Minister considers that a visa holder has provided incorrect information or a bogus document. That section then provides a process for the visa holder to respond to the NOICC. Relevantly, section 107 provides that the Minister was required to notify the applicant that there was a concern that the applicant provided incorrect information or a bogus document. The applicant was then afforded an opportunity to respond to this notice and did so. As stated, the applicant accepted that she had provided incorrect information and a bogus document and then went on to explain why she did so and why the visa ought not be cancelled.
I note that in the applicant’s initial response to the NOICC, there was no mention of remorse or regret.[28]
[28] Court book at page 30.
On 12 September 2019, the applicant’s new representatives provided a written submission to the Tribunal in which, they acknowledged that there were grounds to cancel the visa but submitted that the Tribunal ought not exercise its discretion to do so in this case on the basis that the reasons for not cancelling outweigh the non-compliance.[29]
[29] Court book at page 160.
No specific reference was made in this submission to regulation 2.41(f). It is noted that, again, no reference was made in this submission to the applicant expressing remorse or regret. The focus of this submission was on the applicant and her husband having established a growing business and having embedded themselves in the community here.
A hearing was then held on 26 September 2019 and the applicant’s representative provided a post hearing submission by letter dated 15 October 2019. Attached to these submissions was a statement by the applicant, in which she expressed remorse and regret for her actions. Relevantly, she said:[30]
After our visas were canceled (sic) on May 15, 2017, we were full of sorrow and repentance.
[30] Court book at page 404.
At paragraph [19] of the Tribunal’s reasons, it notes that it explained:
19.… in detail for the benefit of the applicant he merits review process and the prospective outcomes of the review. The Tribunal noted that the respective issues in this review was whether the grounds for cancellation of the applicant’s visa under Section 109 of the Migration Act existed and if so whether or not the applicant’s visa should be cancelled having regard to relevant discretionary factors.
It is clear that the Tribunal understood that its function was to conduct its own assessment of whether the discretion to cancel ought be exercised.
When summarising the interview that the applicant attended, at [23], the Tribunal records:
23.The applicant stated that she made a mistake in this respect. The Tribunal stated to the applicant that it would have been in her best interests to purse further tuition in the written component of the test so that she would have a better chance of passing that component of the test on her own. The applicant agreed. The Tribunal asked the applicant whether she was concerned about paying an imposter to sit the test on her behalf and the potential consequences of being caught out for this. The applicant that she was worried and scared about being found out.
At paragraph [35] of the decision record, the Tribunal noted that it had received a post hearing submission dated 15 October 2019 ‘which it [had] duly considered.’ In addition, the Tribunal expressly referred to the applicant’s statement attached to that post hearing submission.
It is against this background that the Tribunals statements and findings at [65] and [66] need to be considered. It is apparent that the Tribunal has given consideration to the applicant’s submissions and evidence in full in this matter.
This aspect of ground 1is not made out.
For each of these reasons, ground 1 is not made out.
Ground 2
By ground 2, the applicants contend that:
2. In purporting to consider whether to cancel the visa under s 109(1) of the Act the Tribunal erred by misconstruing or misunderstanding the following matters which it should have considered according to Departmental Policy:
a.failing to consider the persons in Australia whose visas would, or may, be cancelled under s 140 of the Act;
b.failing to consider the best interests of the applicants’ son;
c.failing to consider the mandatory legal consequences of a cancellation decision under s 48 of the Act; and
d.failing to consider any other relevant matters including the degree of hardship that may be caused to the visa holder and any family members.
In oral submissions before me, ground two was the focus of the applicant’s case.
In summary, it is submitted for the applicant that the Tribunal:
(a)failed to consider, in the requisite sense, whether the applicant’s husband or son would have their visa cancelled under section 140 if the applicant’s visa was cancelled other than making a cursory observation at [72];
(b)failed to give consideration to the best interests of the child as required by the Convention on the Rights of the Child;
(c)failed to give consideration to whether there were mandatory legal consequences of the cancellation decision in relation to the applicant under section 48 of the Act; and
(d)the failure to consider any other relevant matters including relevantly in this case, the hardship to the applicant, her husband or her child if the visa was cancelled.
Preliminary comments
It is submitted for the Minister that ground 2 must fail as it is contrary to Full Court of the Federal Court Authority that is binding on this court. The applicant disputes this proposition.
In support of this submission, the Minister refers to and relies upon the Full Court of the Federal Court decision in COT15 v Minister for Immigration and Border Protection and Another (No 1) [2015] FCAFC 190 (‘COT15’). In COT15 the central issue was whether the Tribunal, in considering whether to exercise its discretion to cancel an applicant’s visa under section 109 of the Act, was required to consider whether Australia owes protection obligations to the applicant. The court found that it did not.
In COT15, on 2 August 2023, the Minister gave notice to the applicant under section 107 that they were considering cancelling the applicant’s visa, granted on 21 December 2010, on the ground that the applicant had provided incorrect information in his visa application, namely that at the time, he was not married and did not have any dependents.
On 4 December 2013, a delegate of the Minister cancelled the applicant’s visa. The applicant sought a review of the delegate’s decision before the Tribunal. The Tribunal found that the power to cancel the visa had been enlivened and then proceeded to consider whether it ought exercise its discretion to cancel under section 109. The Court concluded that:[31]
38.… The ‘subject matter, scope and purpose of the Act do not require the Tribunal to take into account as a mandatory consideration the non-refoulment obligations of Australia when determining whether to cancel a visa. The Act contemplates that those obligations will be considered in the context of a protection visa application.
[31] COT15 at paragraph [38].
COT15 is not directly on all fours with the present application. It related to a specific international obligation, namely Australia’s non-refoulment obligations. It therefore, does not dispose of ground 2 in the manner suggested by the Minister.
It is not in dispute between the parties that the Tribunal is not required to apply PAM3 and therefore the matters in PAM3 are not mandatory considerations. However, it is submitted for the applicant that where the Tribunal purported to apply PAM3, any misapplication of that policy by the Tribunal could constitute ‘an illogicality in, or misapplication of, the reasoning adopted by the decision-maker; so that the factual result is perverse, by the decision-maker’s own criteria’.[32]
[32] Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 213 (‘Davis’); MQGT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 215 (‘MQGT’).
The applicant points to the Tribunal’s comments at [46] of its reasons as evidence that it purported to apply PAM3, where, after summarising the prescribed criteria in regulation 2.41, the Tribunal stated:
While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi … The Tribunal may also have regard to lawful government policy. The relevant policy set out in the Department’s Procedures Advice Manual PAM3 ‘General visa cancellation powers’, which refer to matters such as the consequence of cancelling the visa, international obligations and any other relevant matters.
The applicant submits that the Tribunal did not properly apply PAM3 and in failing to do so, the Tribunal’s decision is illogical or irrational.
To the extent that the applicant relies upon Davis and Jabbour v Secretary, Department of Home Affairs [2019] FCA 452 (‘Jabbour’) the Minister says that these decisions are distinguishable. The Minister says that both of these cases arise in the context of a challenge to the lawfulness of ‘non-statutory administrative action’, namely administrative action where there is no express statutory basis for that action, and where it is entirely undertaken pursuant to government policy. Whereas the current case involves a decision made pursuant to a clear statutory context, namely section 109 and regulation 2.41.
Similarly, the Minister submits that MQGT concerned a claim of denial of procedural fairness and the principles in Jabbour were not applied directly.
There is some force to the Minister’s submission. The central issue in both Jabbour and Davis was whether the administrative decision not to refer a request for ministerial intervention to the Minister itself is subject to judicial review.
Whilst I accept that there is a difference between the circumstances in which Jabbour and Davis were determined, compared to the present matter, the principle nonetheless applies.
In Jabbour, a threshold issue arose as to whether a decision which was not made in the exercise of a statutory power could itself be amenable to judicial review. Jabbour involved a situation where a request was made for ministerial intervention pursuant to section 351 of the Act. That request was not acceded to. Subsequently another request for ministerial intervention was made by the same applicant and in this instance, the request was not referred to the Minister for consideration. The Departmental officer who made the decision not to refer the matter to the Minister, did so on the basis of Departmental guidelines which provided that any subsequent request for ministerial intervention would only be referred to the Minister if there had been a significant change in circumstances from the circumstances in place when the first ministerial intervention was sought and refused.
For the reasons which are set out in detail, particularly in Davis, which I do not propose to repeat here, it was ultimately held that the administrative decision made pursuant to the guidelines issued by the Department, was amenable to judicial review.
In Jabbour at [89] Robertson J observed:
89.It may be accepted that departure from non-statutory Ministerial guidelines may give rise to action liable to be set aside on judicial review, for error of law, where at least a decision-maker, not bound to apply a policy, purports to apply it as a proper basis for disposing of the case in hand or misconstrues or misunderstands it, so that what is applied is not the poly but something else: … This may be an example of “an illogicality in, or misapplication of, the reasoning adopted by the decision-maker; so that the factual result is perverse, by the decision-maker’s own criteria”.
His Honour then went on to say at [91] – [92]:
91.In my opinion, at the level of principle the non-statutory administrative action on the part of the second respondent in this case is amenable to judicial review for legal unreasonableness. Relevantly, the nature of that administrative action is informed by the guidelines. Although those guidelines take the form of instructions to officers of the Minister’s Department, that is not their only character. The instructions are promulgated and, amounts other things, set out how to make a request and how requests for Ministerial intervention will be progressed. The interest and potential rights of the applicants were affected by the administrative action. The guidelines provide a purpose and set out criteria or considerations.
92.The nature of the administrative action, the relevant exercise of power, does not take it out of the mainstream of government actions either by reference to subject matter or as involving a matter of political judgement. These characteristics of the present non-statutory administrative action do not distinguish it from a statutory discretion. Although involving the exercise of a non-statutory power, the circumstances are “more closely related to justice to the individual than with political, social and economic concerns”...That the basis of review may be narrower than for government action under a statute does not have the consequence that judicial review is unavailable. That the action in the present case is not reviewable under the Administrative Decisions (Judicial Review) Act 1977 (Cth), because there is no decision under an enactment, does not mean that judicial review under s 39B of the Judiciary Act is not available: s 10 of the Administrative Decisions (Judicial Review) Act provides that the rights conferred by ss 5, 6 and 7 are in addition to, and not in derogation of, any other rights that the person has to seek a review by, relevantly, a court. Further, I have set out at [81] above why I consider the displacement of procedural fairness, as a matter of contrary statutory intention, does not mean that review for legal unreasonableness is similarly displaced.
Relevantly, Robertson J further stated at [101]:
101.If it be necessary to find a conceptual underpinning for the role of this Court in judicial review of governmental action under non-statutory powers, the Court having jurisdiction under s 39B of the Judiciary Act, reflecting relevantly the jurisdiction of the High Court under s 75(v) of the Constitution, I would find it in the common law. … It would seem to me to be incongruous to have in the common law a principle of statutory interpretation implying reasonableness as a condition of the exercise of a discretionary power conferred by statute but not to have in the common law any such principle existing outside statutory interpretation. The creation of “islands of power immune from supervision and restraint” or “distorted positions”, referred to in Kirk by French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ at [99], would thereby be avoided. The second respondent is of course an officer of the Commonwealth within s 75(v) and s 39B.
In Davis, the Court confirmed the reasoning in Jabbour and that the exercise of a power which does not arise from statute, is amenable to judicial review for legal unreasonableness.
In Davis, Mortimer J, as her Honour then was, made the following observations:[33]
169.In cases such as the present, there is a singular, causal and close connection between (on the one hand) the non-statutory executive power exercised by departmental officers to decide to screen out individuals like Mr Davis and DCM20 because their circumstances are not sufficiently “unique or exceptional” to warrant the Minister’s attention, and (on the other) the statutory power exercised by the Minister personally to grant a visa if the Minister thinks it is in the public interest. Both relate to assessments of the circumstances of individuals who have interests affected by the exercise of those powers, including their future liberty and their ability to remain lawfully in Australia. If, as is not disputed, the usual implications of rationality and reasonableness apply to the Minister’s exercise of personal statutory power under s 351, it would give s 61 of the Constitution an irrational operation to suggest that in making the choices they are instructed to make, departmental officers could act arbitrarily, illogically, and in a way no reasonable officer would act, with impunity from supervision by a Chapter III Court, including the High Court. Where non-statutory executive power is exercised in the maintenance and execution of the laws of the Commonwealth, then making the same implications of reasonableness and rationality which attends the powers conferred by those laws of the Commonwealth (subject to any clear statutory intention) would seem a modest proposition.
…
174.Where non-statutory executive power is as closely and causally connected to statutory power as the screening out of decisions of departmental officers in the present case, then that connection supplies a principled basis to characterise powers which have s 61 as their source as subject to common law minimum conditions of a correct understanding and application of the law, rationality and reasonableness.
[33] See also observations made by Charlesworth J at [301] – [307].
The effect of these decisions is that the mere fact that an administrative decision is not made pursuant to a statute, does not necessarily protect it from judicial review on the grounds of unreasonableness.
In MQGT, the court observed at [27] – [28]:
27.We acknowledge that the Tribunal would have been free to reason that it did not need to consider international non-refoulement obligations at all because this would be considered if the appellant applied for a protection visa. On this basis, the Tribunal was not bound to make findings about the appellant’s claims. But it is plain from [133] of its reasons that this is not how the Tribunal reasoned. Instead, it decided to consider international non-refoulement obligations by reference to the appellant’s claimed fear of being killed if he had to return to South Sudan, made findings about the plausibility of the appellant’s claims, and based on those findings gave that consideration only “some” or slight weight. The reason it gave the consideration only “some” or slight weight was that it found the claims unconvincing for the reasons given at [130], in circumstances where the applicant had never been given any notice that these claims were in issue or in doubt or any opportunity to expand upon these claims. The Tribunal’s general invitations to the appellant to say whatever he wished during the hearing did not discharge the Tribunal’s obligation to give the appellant procedural fairness by putting the appellant on notice that his claims in this regard were open to doubt. Nothing occurred before or during the hearing that would have put the appellant on notice that these claims were in doubt, yet the sole reason for the Tribunal giving international non-refoulement obligations only “some” or slight weight was its conclusion that these claims were “unconvincing”.
28.These circumstances involved a denial of procedural fairness by the Tribunal to the appellant and a related failure to consider international non-refoulement obligations in circumstances where, by its reasoning process, the Tribunal had purported to give consideration to these obligations. In doing so the Tribunal’s reasoning process miscarried by analogy to Jabbour at [89].
In the present case, section 109 sets out the circumstances which need to be satisfied before the Minister’s discretion to cancel arises. That includes having regard to any prescribed matters. Regulation 2.41 sets out those prescribed matters. It is relevant to note that even if the any of the prescribed matters exist that does not require the cancellation of the visa, it simply gives rise to the discretion to cancel. That discretion must still be exercised reasonably.
When regard is had to the nature, scope and purpose of the relevant legislative provisions, it is apparent that the legislative scheme provides that where a visa holder has provided incorrect information or a bogus document, that the Minister has the discretion to cancel their visa. In determining whether to exercise that discretion, which must be exercised reasonably, the Minister must have regard to the prescribed matters set out in regulation 2.41. Whilst the Minister is not required to have regard to any other matters, they are not precluded from doing so. PAM3 provides guidance to delegates of the Minister who exercise Ministerial power under section 109. It sets out certain additional matters to which the Minster (or their delegate) ‘should’ have regard in determining whether to exercise the discretion to cancel a visa.
In circumstances where PAM3 sets out some additional matters which ‘should’ (not must) be considered by a decision maker before determining whether to exercise a discretion to cancel a visa, and where the decision maker purports to have regard to that policy, if the decision maker misapplies that policy, it is open to this court to conclude that the decision was illogical or perverse.
For these reasons, the question then is whether the Tribunal misapplied PAM3.
Ground 2 - particulars
I now turn to consider what the Tribunal did in this case in relation to these additional matters. It is submitted for the Minister to the extent necessary, the Tribunal did deal with the relevant matters set out in PAM3 and consequently no error arises.
Failure to consider whether the applicant’s husband or son’s visa would be cancelled under s 140
A fair reading of the Tribunal’s reasons makes it clear that this aspect of ground 2 is not made out.
At [72] – [73], the Tribunal deals with the issue of the impact on other people in Australia who may have their visas consequentially cancelled. When one reads paragraph [72] fairly and having regard to the fact that the Tribunal weighed this in the applicant’s favour, it is clear that the Tribunal had regard to the fact that the applicant’s husband and son would have their visa’s consequentially cancelled if the applicant’s visa was cancelled. This finding is open, particularly when regard is had to the heading under which paragraph [72] is found, namely ‘Whether there are persons in Australia whose visas would, or may be cancelled consequentially’.
A fair reading of the Tribunal’s reasons results in the conclusion that the Tribunal did given consideration to the effect of section 140. This limb of ground 2 is therefore not made out.
Failure to consider the best interests of the applicant’s son
One of the considerations that PAM3 directs delegates to consider, even if not raised expressly by the applicant, is:
Whether Australia has obligations under relevant international agreements that would or may be breached as a result of visa cancellation, for example:
•if there are children in Australia whose interests could be affected by the cancellation, or who would themselves be affected by consequential cancellation, delegates are obliged to treat as a primary consideration the best interests of the children
The applicant submits that the Tribunal did not give any consideration to the best interests of the child in this case.
The Minister submits that the Tribunal had regard to whether Australia has any obligations under international conventions or may be in breach of such obligations as a result of the visa cancellation, and concluded that it did not. The Minister refers to the Tribunal findings at [74] under the heading ‘Whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation’ the Tribunal said:
74.There is no evidence before the Tribunal that Australia will be in breach of any international agreements or obligations as a result of the cancellation of the applicant’s visa and the Tribunal gives this no weight in the applicant’s favour.
It was submitted that the applicant did not make any submissions directed at where the best interests of her child lay or indeed whether there would be a breach of any international obligations or agreement. The Minister further submitted that he only submission made in relation to this part of PAM3 was that the applicant wanted to give her child a good education in Australia and that she did not want him to grow up in a polluted city. It is submitted that in this context, the finding that the Tribunal made at [74] was reasonably open and correct.
For the following reasons, I do not accept the Minister’s submission in this regard.
In this case, the applicant and her husband had a child in 2019. The applicant made submissions about her desire for the child to attend school in Australia and also that she did not wish for her child to grow up in a crowded and polluted city in China. This alone gives rise to a question about what is in the best interests of the applicant’s child in the context of a possible cancellation of the applicant’s visa and how those interests are to be weighed against other considerations before the Tribunal.
In terms of the best interests of the child, the applicant refers to and relies upon the observations made in the citizenship context in G v Minister for Immigration and Border Protection [2018] FCA 1229. At [219], Mortimer J (as Her Honour then was), said:
219.… consideration of a child’s best interests requires a decision-maker actively to engage with what is likely to occur to a child, and to articulate with some degree of specificity, how the child’s interests are likely to be affected. The task was captured by Allsop J (as his Honour then was) in Perez v Minister for Immigration & Multicultural Affairs [2002] …
“In Wan, the Full Court found that the failure of the decision maker to identify anywhere in his written reasons what the best interest of the children indicated, was of particular significance. … Also, the Full Court at [30], set out elements of the best interests of the children which had not been elucidated by the Tribunal. Here, nowhere did the delegate identify for himself those interests, or what they called for. It should be said at the outset that this is not some inflexible rule of law, or requirement for mechanical incantation. It is a logical and appropriate starting point if the task is to be essayed reliably. An appreciation of the facts set out at paras 8 to 11 of the reasons ([77] above) and of the contents of the ‘compassionate statements’ referred to in para 17 of the reasons ([79] above) does not mean that from that material the best interest of the children have been identified and appreciated, and taken into account as a primary consideration. It is not just a matter for ‘compassion’ as para 17 would tend to indicate was the view of the delegate. … The interests of the children are considerations in respect of their human development – their health, including their psychological health and happiness, their social and educational development as balanced, nurtured young citizens of this country. This is not a check list, but an illustration of the kinds of considerations relevant to these young people which form their best interests in connection with a decision whether to keep their father away from them in goal, save for visits, or whether to release him, on appropriate conditions if thought necessary, so that he may be close to them (as to two, as a father and step-father) or freely available to spend time with them (as to the other two).
The task of the taking into account of these best interests is not satisfied, or, in a sense, even begun, by identifying facts which throw up the need for the identification and elucidation of these interests or by recognising compassion in respect of the circumstances of the children. The delegate did not say he had taken the children’s interest into account as a primary consideration. That failure of expression would not be fatal if he otherwise displayed an appreciation of the kinds of matters to which I have referred. He did not.
It is not enough to say, as in a sense the respondent submits, that all this is found in paras 8-11 and 17 of the reasons … It is not. The delegate certainly took facts concerning the family and children into account. He recognised and expressed himself in para 17 as balancing it, the element of compassion. But that is not to undertake the necessary task, which is not based on compassion or recognition of suffering. The task is a humane and analytical one; of identifying what the best interests of the children are and then considering them in a way the law requires.”
In this instance, the Tribunal did not identify the applicants’ child’s best interests at all. Nor did it then go on to assess those interests against the other considerations as a primary consideration. Or put another way, PAM3 required the Tribunal to assess the child’s best interests as a primary consideration. In not identifying what the child’s best interests were, the Tribunal has fundamentally misapplied PAM3 and thereby erred.
That error will only amount to a jurisdictional error however, if it is material. The question of materiality is determined by reference to whether there was a realistic possibility of a different outcome. In the circumstances of this matter, I find that there is.
For these reasons, the Tribunal’s decision is affected by jurisdictional error.
Failure to consider the mandatory legal consequences of the cancellation decision in relation to the applicant under s 48
In submitting that, in considering whether to exercise its discretion to cancel a visa, the decision maker must have regard to the legal consequences of that decision, the applicant refers to and relies upon the reasoning of Allsop CJ and Katzmann J in NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38 (‘NBMZ’).
In NBMZ the Minister cancelled a protection visa under section 501 of the Act. In that case, Allsop CJ and Katzman J said it was relevant that the applicant had been assessed to be a refugee and as part of that assessment, had been determined that the applicant had a well-founded fear of persecution if he were to return to his home country.
In those circumstances, therefore a decision to cancel his protection visa raised the issue of whether, if the applicant’s visa was cancelled, that the applicant would, due to Australia’s non-refoulment obligations, remain in detention in Australia for a significant period of time, unless Australia could find a third country to take the applicant, and in the circumstances of this matter there was no evidence to suggest that there was such a country available.
The court found that the applicant’s application for judicial review ought to be ‘determined on the hypothesis that he will be indefinitely detained and that any question of a visa under s 195A is, at best, a matter of speculation. There is no foundation for any assumption that the Minister will grant any relevant visa.’[34]
[34] NBMZ at paragraph [4].
In NBMZ at [6], Allsop CJ and Katzman J discussed the discretion that the Minister has under section 501 and noted that it is an unfettered one. Notwithstanding this, their Honours went on to say at [6]:
[6]… Nevertheless, the law imposes certain limits on the exercise of the discretion. The Minister may not act arbitrarily, capriciously or legally unreasonably. The subject matter, scope and purpose of the act may also require that certain considerations be taken into account … In the case of an applicant for a protection visa one of those considerations is the statutory (that is, legal) consequences of visa refusal.
After reviewing various cases to which the court was referred in NBMZ, their Honours went on to say:
[8]None of these authorities provides the answer to the question as to whether the legal consequence of the decision must be taken into account. The breadth of the discretion under s 501(1) can be accepted; a broad discretion remains, however, confined by the subject matter, scope and purpose of the Act … The decision of the Minister is made within the framework of the Act. The statutory effect of a decision to refuse a visa is removal of the applicant from the country as soon as practicable, and in the meantime, detention. The focus of the court in Djalic was upon the asserted factual difficulty of return to the former Yugoslavia, about which there was little evidence. The Court was not directing itself to the legal consequences of a decision to refuse a visa.
[9]The Minister must take into account the Act and its operation in making a decision; to make a decision without taking into account what Parliament has prescribed by way of legal consequence is to fail to take into account the legal framework of the decision. At a functional level this is reinforced if the legal consequences of the decision are important in human terms’ indefinite detention pending removal.
[10]The Minister was required to take into account the legal consequences of his decision. These consequences (indefinite detention) flowed from Australia’s obligations of non-refoulement and the terms of the Act.
The findings and observations made by the court in NBMZ, therefore must be viewed in this context.
The applicant concedes that the factual circumstances in NBMZ differ to those presently before the court. However, it is submitted for the applicant that the consequences of cancellation in this case were also serious in that, if the applicant’s visa was cancelled, the applicant would be unable to apply for another visa whilst in Australia and for a period of 3 years after leaving Australia.
It is therefore submitted that where the Tribunal fails to consider the consequences of its decision within the framework of the Act, as is alleged to have occurred here, then applying the principles in NBMZ, that can amount to a jurisdictional error.
I accept that a decision maker determining whether to cancel a visa does not do so in a vacuum. It does so in the context of a legislative framework. NBMZ was decided in the context of the way in which the Act applies to person seeking protection as a refugee. Relevantly, in NBMZ, the applicant had been determined to be a refugee, i.e. a finding had been made that they faced a risk of harm if they were to return to their home country. In those circumstances, and taken together with Australia’s non-refoulement obligations, there was a real risk that absent finding a third safe country for the applicant, once their visa was cancelled, they would face the risk of indefinite detention. It was this framework that the court determined had to be considered when a decision was made whether to exercise a discretion to cancel the visa or not.
I accept the Minister’s submission that the statutory context in which the decision to cancel was to be made in this case is different and that a fair reading of [75] – [76] leads to the conclusion that the Tribunal did have regard to the mandatory legal consequences of the cancellation.
PIC4013 precludes a person whose visa has been cancelled under section 109 from apply for a visa to Australia for a period of three years from anywhere in the world whereas section 48 only prohibits such an application from Australia.
It is submitted that the Tribunal’s reasons ought to be construed as dealing with the section 48 point as being subsumed in the Tribunal’s findings about PIC4013.[35] Or alternatively, the same conclusion is reached if the court were satisfied that the Tribunal did not need to expressly deal with this matter on the basis that it was not material to its final decision making process because of the harsher application or a harsher effect of PIC 4013.[36]
[35] See WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184 at paragraph [47].
[36] See Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16 at paragraph [34].
On either of these bases, I agree that a fair reading of paragraphs 75 and 76 of the Tribunal’s reasons indicate that the Tribunal did consider this matter. The conclusion it reached was reasonably open on the material before it.
Failure to consider any other relevant matters including relevantly in this case, the hardship to the applicant, her husband or her child if the visa was cancelled
To the extent that the applicant further claims that the Tribunal did not consider any other relevant matter, including the hardship to the applicant and her family, such a submission cannot be accepted. The Tribunal considered the applicant’s submissions which largely addressed the hardship to her, her family, her business and customers and suppliers to her business. This matter was thoroughly considered by the Tribunal and the Tribunal’s findings were reasonably open to it.
Ground 2 - conclusion
In failing to consider the best interests of the child the Tribunal erred. For the reasons set out above, that error was material and therefore that limb of ground 2 is made out.
Ground 3
In the amended application filed 18 July 2024, the applicant claimed by ground 3, that:
3.The delegate lacked power to act under s107 of the Act. Although the Tribunal had the same power as the delegate, the delegate did not have the power to cancel the visa in circumstances where the notice purportedly issued under s 107 was issued beyond power. The Tribunal’s decision is affected by jurisdictional error because nobody with actual power had formed the necessary state of satisfaction under s 107, meaning that the subsequent power under s109 could not be exercised within power.
In the Further Amended application filed 5 August 2024, the applicant deleted ground 3 and at the hearing, Kings Counsel for that applicant confirmed that ground 3 was no longer pressed.
CONCLUSION
As one limb of ground 2 is made out, it is appropriate to make the orders sought by the applicant.
For each of these reasons, I therefore make the orders set out at the commencement of these written reasons.
I certify that the preceding one hundred and thirty-six (136) numbered paragraphs are a true copy of the Reasons for Judgment of Deputy Chief Judge Mercuri. Associate:
Dated: 28 February 2025
0
10
2