THE FIRST GROUND
32 To succeed at first instance, it was necessary for the appellant to show that the Minister's decision was affected by jurisdictional error: Act, s 474; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476; Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217. In Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 Gaudron J said at [41] in relation to an administrative tribunal:
For the purposes of mandamus and prohibition, a tribunal is said to have failed to exercise its jurisdiction if it has wrongly denied the existence of its jurisdiction or mistakenly placed limits on its functions or powers. If the tribunal wrongly holds it has no jurisdiction or is not authorised to make a particular decision, there is said to be 'an actual failure to exercise jurisdiction'. On the other hand, there is said to be a 'constructive failure to exercise jurisdiction' when a tribunal misunderstands the nature of its jurisdiction and, in consequence, applies a wrong test, misconceives its duty, fails to apply itself to the real question to be decided or misunderstands the nature of the opinion it is to form. A constructive failure to exercise jurisdiction may be disclosed by the Tribunal taking an irrelevant consideration into account. Equally, it may be disclosed by the failure to take a relevant matter into account.
(footnote omitted)
33 A failure to comply with a condition on the exercise of a power will not amount to jurisdictional error if compliance with the condition could have made no difference to the outcome: Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 at [30] (Kiefel CJ, Gageler and Keane JJ).
34 In the context of an application for a protection visa, the decision-maker's task is to respond to a "substantial, clearly articulated argument relying upon established facts" including any claim that clearly emerged from the materials: Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 73 ALD 321 at [24] (Gummow and Callinan JJ, Hayne J agreeing at [95]); NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at [58], [63], [68]. A material failure to do so may be characterised either as a failure to afford natural justice or as a constructive failure to exercise jurisdiction: Dranichnikov at [25] (Gummow and Callinan JJ), [78] (Kirby J); and see Coker v Minister for Immigration and Border Protection (2017) 160 ALD 588 at [43], [46] - [49] (Moshinsky J) and the cases summarised therein. In Dranichnikov, the failure to consider an articulated claim signalled a basic misunderstanding of the case brought by the visa applicant, resulting in a flaw "so serious as to undermine the lawfulness of the decision in question in a fundamental way": at [88] (Kirby J).
35 These principles apply equally to the exercise of the power conferred by s 501 of the Act to refuse to grant a visa of the kind for which the appellant applied.
36 The evidentiary material and submissions provided to the Minister in 2016 responded to an invitation extended by the Minister in the discharge or partial discharge of the obligation to afford the appellant procedural fairness. As Mason J said in Kioa v West (1985) 159 CLR 550 at [34], "The critical question in most cases is not whether the principles of natural justice apply. It is: what does the duty to act fairly require in the circumstances of the particular case?" Gibbs CJ said at [11] that the "fundamental rule is that a statutory authority having power to affect the rights of a person is bound to hear him before exercising the power". Thus, the obligation to afford procedural fairness in the exercise of the power under s 501 of the Act required that the Minister consider the material provided to him in 2016.
37 Quite apart from the rules of procedural fairness, the obligation to consider the appellant's claims can be said to arise as a necessary incident of the Minister's task. The content of the obligation may vary depending on the statutory context and the factual subject matter with which the material is concerned. As Allsop CJ said in Hands v Minister for Immigration and Border Protection (2018) 267 FCR 628 at [3], Markovic and Steward JJ agreeing) in relation to decisions made under s 501 of the Act:
By way of preliminary comment, it can be said that cases under s 501 and the question of the consequences of a failure to pass the character test not infrequently raise important questions about the exercise of Executive power. Among the reasons for this importance are the human consequences removal from Australia can bring about. Public power, the source of which is in statute, must conform to the requirements of its statutory source and to the limitations imposed by the requirement of legality. Legality in this context takes its form and shape from the terms, scope and policy of the statute and fundamental values anchored in the common law: Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 at [9]; Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 at [59]. The consequences of these considerations are that where decisions might have devastating consequences visited upon people, the obligation of real consideration of the circumstances of the people affected must be approached confronting what is being done to people. This obligation and the expression of its performance is not a place for decisional checklists or formulaic expression. Mechanical formulaic expression and pre-digested shorthand expressions may hide a lack of the necessary reflection upon the whole consideration of the human consequences involved. Genuine consideration of the human consequences demands honest confrontation of what is being done to people. Such considerations do not detract from, indeed they reinforce, the recognition, in an assessment of legality, that those entrusted with such responsibility be given the freedom of lawful decision-making required by Parliament.
38 The primary judge summarised the materials before the Minister that referred to any risk to which the appellant's family members might be exposed. Her Honour drew a distinction between the materials that predated the appellant's marriage and the birth of his son and the materials that post-dated those events. She concluded that the pre-dating materials ought to be understood as advancing a claim about the safety of family members in existence at the time that the visa application was made, but not in relation to the appellant's wife and child.
39 The primary judge went on to say that the submissions of the appellant's representative in 2016 did not refer to the risk to the appellant or to his family, and (at [48]):
That being so, the extent of the information before the Minister about the applicant's wife and child and the risk to their safety was, in addition to the notification of their inclusion in the Visa Application, comprised of the statements included in the statutory declarations of Captain Scanes, Lieutenant Colonel Hick and the applicant's former colleague.
40 At first instance, the Minister had not gone so far as to submit that the appellant had made no claim at all about the risk to the physical safety of his wife and son. The primary judge thus proceeded "on the basis that a claim was made, albeit somewhat faintly" (at [50]). Her Honour said (at [56]) that "the issue of the safety of the applicant's family was only referred to in a summary way", that the matter was not the subject of "a particular document or evidence" and had not formed a "significant or central part of the submissions and evidence put forward" by the appellant to the Minister. Her Honour continued:
… In other words, in contrast to the report and submissions thereon in Coker, the issue of safety of the applicant's wife and child was not 'seriously advanced' in the material put forward by the applicant. In those circumstances the failure to consider the safety of the applicant's wife and child cannot amount to a denial of procedural fairness in the way contended for by the applicant.
41 The primary judge said that the failure to consider the safety of the appellant's wife and child did not otherwise amount to jurisdictional error because:
(1) The issue was not a mandatory consideration, there being no statutory prescription of the factors which the Minister must take into account in exercising the discretion under s 501 of the Act.
(2) The scope of what the Minister was required to consider "was entirely a matter for him" such that the relevance, if any, of the physical safety of the appellant's family, "the extent to which it impacted on the applicant's claims and the weight to be given to it" were matters for the Minister to determine.
(3) The Minister's consideration of the effect of an adverse decision on the appellant's wife and child was neither illogical nor irrational and the failure to refer to the risk to their safety "did not make it so". The Minister's conclusion that the wife and child would be refused a visa could not be said to lack an evident and intelligible foundation and was open on the material before him.
(4) The case was not one in which an adverse factual finding had been made in circumstances where an identified piece of significant evidence had been overlooked in the sense discussed in Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at [97] - [98] and [111] - [112]. That was because there was "no single primary document which evidenced or advanced the threats to the safety of the wife and child" and because no express consideration had been given to any claim about their safety, and no adverse finding had been made in respect of it.
42 The appellant submits there is error in these conclusions in a number of respects. His submissions should be accepted.
43 The appellant clearly expressed a claim on the face of his visa application that his "family members" were exposed to a risk of harm because of the support he had provided to the ADF in Afghanistan. The appellant's words extracted at [12] above make that plain.
44 The nature of the harm and the magnitude of the risk to which the appellant referred were significant. The appellant claimed that he and his family members were at risk of being murdered. There is unequivocal evidentiary support for the existence of that risk among the material the appellant later provided. Of its very nature, the subject matter was serious.
45 More than that, the material was to be considered in the context of all of the materials to which the Minister must have regard under s 54 of the Act, including the humanitarian claims specified on the face of the visa application itself, and the updated information the appellant had provided about his marriage and the birth of his son.
46 It is unsurprising that the materials that pre-dated the appellant's marriage and the birth of his child did not expressly refer to his wife and child as then being among the family members who might be exposed to the risk referred to in the visa application. However, once the marriage and the birth were notified to the Minister, there could be no proper basis for the Minister to proceed on the basis that the risk of harm to family members referred to in the earlier materials was not also asserted to be a risk to which the appellant's wife and child were exposed. To read the visa application and the supporting materials in that way would be to divorce the materials from their essentially human context and to ignore the circumstance that the appellant had updated a part of his visa application that was no longer current, specifically by identifying who his family members then were.
47 It is true that the materials provided to the Department in 2016 in large part dealt with the question of whether the appellant passed the character test. That, too, is unsurprising. The materials provided in 2016 were responsive (although not exclusively so) to the perceived character concern that had been raised in the Department's correspondence, and were to be understood in the context of the Department's statement that everything the appellant had previously said or submitted would be considered.
48 As has been said, the Minister was obliged to consider the responses made at that time in the context of the claims made on the face of the visa application itself and having regard to all of the materials the appellant had provided up to the time that the decision was made: Act, s 54.
49 Among other things, the appellant's representative sought to remind the Minister of the "moral obligation" underpinning the policy of the Australian Government to resettle those who had assisted the ADF in Afghanistan. The supporting materials contained express and unequivocal references to the risks faced by the appellant and his family members. That material ought reasonably to have been understood as furnishing proof of the factual circumstances that gave rise to the asserted moral obligation. It is not to the point that the appellant's written statement provided in 2016 did not repeat the text of the humanitarian claim or make any express reference to the appellant's wife or the impending birth of his son. The claimed fear of a retributive attack on the appellant's family members had already been made on the face of the visa application. It did not require clarification, nor did it require repeating in respect of each family member.
50 Having regard to the subject matter of the claim and the nature of the feared harm, the primary judge erred in concluding that the risk of harm had only been faintly raised in the three statutory declarations of 2016 to which her Honour referred and in concluding that the claim was not seriously advanced. The practical effect of those conclusions was that the appellant had raised a claim that his parents and siblings were at risk of being murdered, but had not seriously suggested that his wife and child were exposed to the same risk. It was not open to the Minister to adopt that interpretation of the materials. It does not appear that the Minister himself adopted that distinction in any event: the reasons contain no reference at all to the risk of harm faced by any of the appellant's family members as a result of the work he had undertaken for the ADF.