Aby v Minister for Immigration, Citizenship and Multicultural Affairs

grounds of appeal 8 By notice of appeal dated 14 December 2022, the appellant raised three grounds of appeal however, the appellant abandoned ground 3. The two grounds of appeal ultimately pursued on appeal are as follow: (1) The FCFCOA erred by failing to find that the delegate failed to comply with s 120 of the Act in relation to the information that the Order extended to the appellant's children. (2) The FCFCOA erred by failing to find that the delegate failed to consider important evidence, being that the Order was under challenge.

Background 9 Section 120(1)-(2) of the Act provides: (1) In this section, relevant information means information (other than non-disclosable information) that the Minister considers: (a) would be the reason, or a part of the reason, for cancelling a visa; and (b) is specifically about the holder or another person and is not just about a class of persons of which the holder or other person is a member; and (c) was not given by the holder; and (d) was not disclosed to the holder in the notification under section 119. (2) The Minister must: (a) give particulars of the relevant information to the holder; and (b) ensure, as far as reasonably practicable, that the holder understands why it is relevant to the cancellation; and (c) invite the holder to comment on it. 10 On 14 April 2021, the appellant was granted a subclass 485 visa as a dependent applicant. The primary visa holder was the appellant's wife. 11 On 2 May 2022, the Order was issued against the appellant. The Order prohibited the appellant from contacting his wife and their two children. 12 On 20 November 2022, the appellant arrived in Australia at Perth International Airport as the holder of the subclass 485 visa. The appellant was stopped and interviewed by an Australian Border Force officer. During that interview, the appellant confirmed the status of the Order to be correct, and stated that he had not lived with his wife since 11 May 2022. 13 The delegate gave the appellant notice of the delegate's intention to consider cancelling his visa (Notice). The ground for cancellation identified in the Notice was s 116(1)(a) of the Act, namely that the decision to grant the visa was based, wholly or partly, on a particular fact or circumstance that was no longer the case or that no longer existed. The Notice referred to the existence of the Order, and noted that the appellant had confirmed during his interview with the officer that the Order was correct. The Notice went on to state that grounds existed to consider cancellation of the appellant's visa on the basis that he was no longer a member of the family unit of a person who held a subclass 485 visa. 14 An Australian Border Force Officer provided to the appellant a copy of the Notice. At that time, the officer informed the appellant, amongst other things: "As per the Convention on the Rights of the Child, the best interest of any child in Australia under 18 years of age will be considered". 15 The appellant was given the opportunity to comment on the Notice in a further interview with an officer. During that interview, the appellant informed the officer that the officer could cancel the appellant's visa. 16 On the appeal, the appellant and respondent agreed that, during the interview process, the appellant was informed that the Order prevented him from contacting his wife. They also agreed that, at no point during the interview process, was it put to the appellant that the Order restrained him from having contact with his children. 17 The delegate subsequently decided to cancel the appellant's visa. The delegate's reasons were recorded in Part B to the Notice (Decision Record). The Decision Record contained a number of boxes which addressed questions, including why the delegate was satisfied grounds for cancellation exist (Question 7), the reasons given by the visa holder as to why the visa should not be cancelled (Question 8), the delegate's assessment of the reasons the visa should not be cancelled (Question 9), and other relevant matters (Question 10). 18 The delegate recorded in the Decision Record that he was satisfied that there were grounds to cancel the visa (Question 7 and Attachment B to the Decision Record). The delegate then addressed the discretionary considerations relevant to the cancellation of the appellant's visa in Questions 8-10 of the Decision Record. Question 9 required the delegate to address various considerations in separate boxes, including the degree of hardship which may be caused to the visa holder, their family members and others, if their visa was cancelled. In response to this question, the delegate stated: "I am aware that the visa holder has two (2) children, and that a decision to cancel his visa will separate him from them. However, I do note that the visa holder is prevented from making contact with his children due to a family violence restraining order."

Decision of the primary judge 19 Before the primary judge, the appellant submitted that the delegate was correct that the Order prevented contact with his children (Alleged Relevant Information), and this fact constituted "relevant information" within the meaning of s 120(1) of the Act, which should have been put to the appellant for comment. 20 The primary judge rejected Ground 1 on the basis that the dispositive reason for the cancellation of the visa was the fact that the appellant was separated from his wife, the substantive visa holder. The primary judge held that there was no need to specifically put material relating to the appellant's children pursuant to s 120 of the Act as this was not the reason or part of the reason for the cancellation of the visa: Reasons at [36].

Submissions 21 Consistently with the appellant's submissions before the primary judge, on appeal, the appellant submits that the Alleged Relevant Information should have been put to the appellant for comment by reason of s 120(1)-(2) of the Act. 22 The appellant submits that the Alleged Relevant Information undermined the otherwise favourable weight that would have been placed on the interests of his children. The appellant submits that the Alleged Relevant Information was relevant information to the question whether, assuming that the power to cancel a visa was engaged, it was appropriate to cancel the appellant's visa. 23 The appellant submits that the fact squarely undermined the appellant's prospects in the decision. The delegate had told the appellant expressly that the interests of his children would be considered and, on the appellant's submission, that might explain why very little was said about the matter by the appellant himself. The appellant submits that very substantial weight would have been placed on the best interests of his children, which, but for the Order, would have been served by the appellant's continued presence in Australia to parent the children. 24 Instead, the appellant submits that the best interests of his children appeared to receive no weight at all by the delegate in the Decision Record. That was specifically because the Order prevented contact with the appellant's children, such that the appellant's presence in Australia was not required which, in the circumstances, made it easier for the delegate to cancel the appellant's visa. 25 The appellant submits that whilst the Alleged Relevant Information was generally known, the requirements of s 120(2) of the Act required that the appellant be invited to comment on the relevant information and this requirement was absolute. The appellant submits that absent perfect compliance with the requirements of s 120(2) of the Act, the appellant is entitled to have the delegate's decision quashed. 26 The respondent submits that the primary judge was correct to find that the Alleged Relevant Information was not any part of the decision to cancel the visa. The respondent submits that it cannot be said that the Decision Record disclosed that the delegate exercised his discretion to cancel the visa because the Order prevented the appellant from contacting his children. On the respondent's submission, it follows that the Alleged Relevant Information was not "relevant information" within the meaning of s 120(1) of the Act, and was therefore not required to be put to the appellant for comment. 27 The respondent emphasises that the delegate merely "noted" that the appellant was prevented from making contact with his children due to the Order. The delegate did not state that they placed any weight on that matter. On the respondent's submission, the delegate was merely making passing reference to the fact of the Order. 28 In response to the appellant's contention that very substantial weight would have been placed on the best interests of the appellant's children, the respondent submits that there was no evidence before the delegate about whether the children's best interests would be served by his continued presence in Australia. When served with the Notice, the appellant made no submissions about the relationship that he had with his children, or his desire to have the Order set aside so that he could parent them. He instead agreed to his visa being cancelled, and requested time to arrange his personal effects and employment. According to the respondent, it is open to this Court to find that the delegate gave the bests interests of the appellant's children only some weight against cancelling the visa, and that the weight was not affected by the existence of the Order.

Consideration 29 In SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294 (SAAP), the High Court considered the application of s 424A(1) of the Act, which at the time required the former Refugee Review Tribunal to give an applicant particulars in writing of any information that the Tribunal considered would be the reason, or a part of the reason, for affirming the decision that was under review, to ensure, as far as reasonably practicable, that the applicant understood why it was relevant, and to invite the applicant to comment on it. The information and invitation was required to be given by a prescribed method, involving handing, or sending, to the applicant, by post or other specified form of communication, a document (s 424A(2)). On the facts before the High Court, the first appellant applied to the Tribunal for review of an unfavourable decision by a delegate. A Tribunal Member took evidence from the first appellant's daughter in the absence of the first appellant. After the daughter's evidence was given, the Tribunal Member raised with the first appellant, for her comment, three particular matters about which the daughter had given evidence. Those matters were potentially adverse to the first appellant's case. The Tribunal subsequently affirmed the delegate's decision. The Tribunal's alleged failure to comply with s 424A arose from the circumstance that the Tribunal Member did not give the first appellant written notification of the three matters on which he invited comment, but dealt with the matter orally at the hearing. A majority of the High Court (McHugh, Kirby and Hayne JJ) held that the Tribunal Member's failure to comply with s 424A constituted jurisdictional error and rendered its decision invalid. 30 Justice McHugh relevantly held (at [77]): It is not to the point that the Tribunal may have given the applicant particulars of the adverse information orally. It is also not to the point that in some cases it might seem unnecessary to give the applicant written particulars of adverse information (for example, if the applicant is present when the Tribunal receives the adverse information as evidence from another person and the Tribunal there and then invites the applicant orally to comment on it). If the requirement to give written particulars is mandatory, then failure to comply means that the Tribunal has not discharged its statutory function. 31 Justice Hayne held (at [208]): Where the Act prescribes steps that the Tribunal must take in conducting its review and those steps are directed to informing the applicant for review (among other things) of the relevance to the review of the information that is conveyed, both the language of the Act and its scope and objects point inexorably to the conclusion that want of compliance with s 424A renders the decision invalid. Whether those steps would be judged to be necessary or even desirable in the circumstances of a particular case, to give procedural fairness to that applicant, is not to the point. The Act prescribes what is to be done in every case. 32 Justice Kirby held (at [173]): Because of the mandatory language of s 424A (must) and the provisions of Pt 7, Div 4, I agree with Hayne J that the breach is sufficient to constitute jurisdictional error, as that opaque expression has been interpreted. An imperative obligation for the conduct of a review by the Tribunal has not been complied with. The will of the Parliament must be obeyed. The resulting decision of the Tribunal is not, therefore, one protected by the Act from judicial review in the Federal Court. 33 In Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 (Hossain), a plurality of the judges (Kiefel CJ, Gageler and Keane JJ) stated (at [29]-[30]) that: Ordinarily, a statute which impliedly requires that condition or another condition to be observed in the course of a decision-making process is not to be interpreted as denying legal force and effect to every decision that might be made in breach of the condition. The statute is ordinarily to be interpreted as incorporating a threshold of materiality in the event of noncompliance. Whilst a statute on its proper construction might set a higher or lower threshold of materiality, the threshold of materiality would not ordinarily be met in the event of a failure to comply with a condition if complying with the condition could have made no difference to the decision that was made in the circumstances in which that decision was made. (Emphasis added). 34 The footnote to the bolded text above in the plurality's judgment reads: "cf SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294". It is therefore apparent that Kiefel CJ, Gageler and Keane JJ were alive to the High Court's reasons in SAAP. However, their Honours' citation to SAAP did not identify the passages in SAAP on which the plurality relied. There is, therefore, some uncertainty as to the interaction of the plurality's reasons in Hossain at [29]-[30] and the reasons of the majority in SAAP at [77], [173] and [208]. In short, a question arises whether the effect of the plurality's reasons in Hossain is to qualify or overrule the majority's reasons in SAAP, by introducing a materiality threshold that must be satisfied to establish jurisdictional error even in the context of mandatory procedural requirements in the Act. 35 In Naikar v Minister for Immigration and Border Protection [2019] FCA 502 at [27], O'Callaghan J held that the relevant test for establishing jurisdictional error was as set out by the plurality in Hossain. 36 In the present case, the respondent concedes that, if the Alleged Relevant Information - that is, that the Order extended to the appellant's children - constituted "relevant information" within the meaning of s 120(1) of the Act, the delegate's failure to put that information to the appellant would constitute a material error. It follows that the only issue in dispute between the parties is whether the Alleged Relevant Information constituted "relevant information". There is, therefore, no need to resolve the question of the interaction between the plurality's reasons in Hossain at [29]-[30] and the reasons of the majority in SAAP at [77], [173] and [208]. 37 I accept the appellant's submissions that the Alleged Relevant Information constituted "relevant information" within the meaning of s 120(1) of the Act. More particularly, I accept the appellant's submissions that the Alleged Relevant Information formed "part of the reason" for the delegate's decision to cancel the appellant's visa, within the meaning of sub-s 120(1)(a) of the Act. There is no controversy that sub-ss 120(1)(b)-(d) of the Act are satisfied in this case. 38 It is undoubtedly correct, as the respondent submits, that, as a general proposition, a decision-maker will be confronted with issues of varying importance and relevance to the decision-maker's decision and the reasoning in support of that decision. While a decision-maker's reasoning may advert to, and express views on, such issues, not every issue adverted to will necessarily constitute part of the decision-maker's reasons: see VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 236 FCR 549 at [33]. 39 However, in this case, to assess whether or not a fact adverted to by the delegate in the Decision Record constitutes "part of the reason" for the delegate's decision to cancel the appellant's visa, it is necessary to have regard to the form and content of the Decision Record. The Decision Record was contained in a form with pre-populated questions. Question 9 on the form required the delegate to set out its assessment of "the reasons the visa should not be cancelled". The form then identified five sub-issues relevant to Question 9. A box appeared under each sub-issue, which was to be filled-in by the delegate. The sub-issue of relevance in this case concerns hardship. The form identified that sub-issue in the following terms: "The degree of hardship which may be caused to the visa holder, their family members and others, if the visa is cancelled. Where applicable, the best interests of a child in Australia under 18 years must be considered in accordance with Australia's obligations under the Convention on the Rights of the Child". 40 In response to this sub-issue, the delegate set out seven brief dot-points. One of those dot-points contained the reference to the Alleged Relevant Information. The dot-point relevantly stated: "I am aware that the visa holder has two (2) children, and that a decision to cancel his visa will separate him from them. However, I do note that the visa holder is prevented from making contact with his children due to a family violence restraining order." 41 Two matters are apparent from the above structure and content of the Decision Record. First, the form containing the Decision Record required the delegate to consider the best interests of a child under 18 years. The delegate's reference to the application of the Order to the appellant's children was directly responsive to the requirement stipulated on the form. Secondly, the delegate's reasoning referring to the Alleged Relevant Information appeared within a series of brief dot-points, all of which were ultimately responsive to the form's requirement that the delegate set out its "assessment of the reasons the visa should be cancelled". Seen in this context, the delegate's reference to the Alleged Relevant Information can only be construed as evidencing that that information was weighing on the delegate's mind. Although the delegate did not expressly state that the delegate was giving weight to the Alleged Relevant Information in deciding to cancel the appellant's visa, it is evident that the delegate's reference to the Alleged Relevant Information was more than just a passing reference. In these circumstances, it is my opinion that the Alleged Relevant Information formed part of the reasons for the delegate's decision to cancel the appellant's visa, and constituted "relevant information" within the meaning of s 120(1) of the Act. 42 It follows that, in my view, the delegate was required, by s 120(2) of the Act to: give particulars of the Alleged Relevant Information to the appellant; ensure, as far as reasonably practicable, that the appellant understood why it was relevant to the cancellation; and invite the appellant to comment on it. In circumstances where the respondent has conceded the materiality of the delegate's failure to put the Alleged Relevant Information to the appellant, the delegate's failure to do so must have constituted jurisdictional error. 43 For the above reasons, appeal ground 1 must be allowed.

Background and decision of the primary judge 44 The Order was an interim order, and was being challenged by the appellant. During the course of the appellant being interviewed by an Australian Border Force officer, the following exchange occurred: [Officer] Okay. So, um, can you confirm that you are subject to a family violence restraining order, which prohibits contact with the primary visa holder of your 485 visa? [Appellant]: Uh, yes. [Officer]: Okay. And can you confirm that you are separated from the primary visa holder of your 485 visa? [Appellant]: I'm not sure because the case is still going on in the court, and the final hearing is on February 3rd. [Officer]: Okay. Um, all right. 45 The delegate's reasons in the Decision Record contained no acknowledgement that the Order was interim in nature, or that it was under challenge. The critical passage in the Decision Record (to which reference has already been made) merely stated: "I do note that the visa holder is prevented from making contact with his children due to a family violence restraining order." 46 The primary judge rejected the appellant's submission that, in failing to refer to the interim nature of the Order, the delegate had failed to consider important information. The primary judge's reasons for doing so were set out in the Reasons at [37], and were as follows: The Court is satisfied that the fact that the order was interim in nature and the matter would be back in court in February 2023 was known to the decision-maker. A copy of the family violence. The order is before the Court and it is clearly an interim order only. Counsel for the applicant stated that the applicant is challenging the order. Even if that is the case and the order was not made permanent, this does not mean that the applicant will automatically resume a relationship and/or cohabitation with his wife and thus be able to satisfy the visa. The dispositive issue was that the applicant was no longer in a relationship with the substantive visa holder. When questioned about that he did not object to his visa being cancelled. The issue in relation to the applicant's children was considered by the decision-maker. In fact, it was given some weight as to not cancelling the visa. The fact that it is now suggested with the benefit of hindsight that this matter was the applicant's best shot and that the issue was given insufficient weight when it was clearly considered is no more, in the Court's view, than an attempt to invite the Court to undertake impermissible merits review. Ground 2 has no merit.

Appellant's submissions 47 The appellant submits that the evidence that the Order was under challenge was not considered by the delegate. The appellant submits that this was important evidence in the matter. The appellant submits that his only "realistic shot" at keeping the visa was through a consideration of the interests of his children. The appellant submits that the interests of his children were given no weight in favour of allowing him to hold a visa. The appellant submits that properly understood, evidence that the Order was under challenge might have warranted greater weight in favour of allowing the appellant to retain the visa. 48 The appellant submits that this evidence was "not considered", noting that to consider something has a legal meaning beyond merely "be aware of" or "not ignore"; the degree of effort to "consider" depends on the quality of the information: citing Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 at [25] (per Kiefel CJ, Keane, Gordon and Steward J) (Plaintiff M1/2001). 49 The appellant submits that the primary judge at Reasons [37] conflated the fact that the information was "known" to the delegate, and the delegate having considered the point in the sense of intellectually engaging with the prospect that the Order might be dissolved or amended, with the attendant consequences for access to his children. 50 The appellant submits that the primary judge, at Reasons [37], went into an inappropriate discussion about the merits of the Order and the challenge thereto, and also made an incorrect statement that "the dispositive issue was that the applicant was no longer in a relationship with the substantive visa holder". The appellant submits that this was not a correct statement in relation to the discretionary aspect of the power, to which the appellant's argument at trial was directed. 51 On the appeal, the respondent does not seek to defend the reasoning of the primary judge on ground 2. However, the respondent submits that the primary judge's dismissal of Ground 2 should be upheld because there was no evidence before the delegate that the Order was being challenged, or if it was, the information was considered to the extent necessary in the circumstances of the case.

Consideration 52 In Plaintiff M1/2001, Kiefel CJ, Keane, Gordon and Steward J set out the approach required by a decision-maker in assessing representations made by a former visa holder in the exercise of the decision-maker's power under s 501CA(4) of the Act. Their Honours relevantly stated (at [25]-[26]): It is also well-established that the requisite level of engagement by the decision-maker with the representations must occur within the bounds of rationality and reasonableness. What is necessary to comply with the statutory requirement for a valid exercise of power will necessarily depend on the nature, form and content of the representations. The requisite level of engagement - the degree of effort needed by the decision-maker - will vary, among other things, according to the length, clarity and degree of relevance of the representations. The decision-maker is not required to consider claims that are not clearly articulated or which do not clearly arise on the materials before them. Labels like "active intellectual process and "proper, genuine and realistic consideration must be understood in their proper context. These formulas have the danger of creating "a kind of general warrant, invoking language of indefinite and subjective application, in which the procedural and substantive merits of any [decision-maker's] decision can be scrutinised". That is not the correct approach. As Mason J stated in Minister for Aboriginal Affairs v Peko-Wallsend Ltd "[t]he limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind". The court does not substitute its decision for that of an administrative decision-maker 53 I reject the appellant's submissions under appeal ground 2. In my view, the delegate exercised the requisite level of engagement having regard to the length, clarity and relevance of the evidence raised by the appellant during his interview as to the status of the Order. The appellant's evidence arose during a preliminary interview, prior to him being issued the Notice. To understand the appellant's evidence in its full context, it is necessary to set out a larger extract of the transcript of his interview: [Officer]: So, um, can you confirm that you are subject to a family violence restraining order, which prohibits contact with the primary visa holder of your 485 visa? [Appellant]: Uh, yes. [Officer]: Okay. And can you confirm that you are separated from the primary visa holder of your 485 visa? [Appellant]: I'm not sure because the case is still going on in the court, and the final hearing is on February 3rd. [Officer]: Okay. Um, all right. Uh-- [Appellant]: You can talk to my lawyer if you need to. [Officer]: Okay, so what was the date, sorry, case - [Appellant]: February 3rd of 2023. [Officer]: Okay, 2023. Okay. Um, so back to that question. So, yeah, are you separated from the primary visa holder so in terms of your relationship status? [Appellant]: Yeah. Because I have moved from the home from May-- not May. Yeah, May 11th of 2022 because of this- because of this o-order- [Officer]: Okay. [Appellant]: -but I'm not sure if she has applied for a divorce or not. [Officer]: Okay. [Appellant]: That's why the case is with the lawyers. [Officer]: Okay. So can you confirm then, so from May 11th, 2022, you have been separated from [crosstalk]- [Appellant]: Uh, I don't know because- [Officer]: -holder. [Appellant]: -I haven't seen after that, to be honest. [Officer]: Okay. [Appellant]: Yeah. And kids, too. 54 The Australian Border Force officer subsequently gave the appellant the Notice, and an opportunity to consider his response to the Notice. The Notice clearly referred to the existence of the Order, and relied on the Order to state that there were grounds to consider cancellation of the appellant's visa. After considering the Notice, the appellant informed the officer that the officer could cancel the appellant's visa. The appellant did not inform the officer, after receipt of the Notice, that the Order was under challenge. 55 Two matters emerge from an analysis of the interviews with the appellant before and after he was issued the Notice. First, the appellant did not clearly identify that the Order was under challenge. The appellant merely referred to a "case" that was "still going on in the court" in response to a question as to whether he was separated from his wife. The appellant later stated that he was not sure if his wife had applied for a divorce. Second, when the appellant was asked to comment on the Notice, the appellant said nothing about the interim nature of the Order or that it was under challenge. The appellant instead indicated he agreed that his visa could be cancelled. It is therefore artificial to now argue, as the appellant does, that the interim nature of the Order was important evidence. The delegate was not required to consider a claim that the Order was under challenge in circumstances where no such claim had been clearly articulated and did not otherwise arise from the interview. 56 For these reasons, appeal ground 2 must fail.

Disposition 57 The appeal will be allowed. 58 The parties will be ordered to confer and file proposed agreed orders giving effect to the reasons of the Court. If there is disagreement between the parties they are to file separate orders and a short written submission. I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Anderson.