Ground Two - Breach of Procedural Fairness
69 The applicant's amended originating application identified two claims raised by the evidence adduced in support of the applicant's case which it was said the Tribunal failed to deal with:
(1) If the applicant were removed to England, the applicant's partner in Australia would suffer both substantial emotional harm and practical impediments (eg: exacerbation of her mental health issues) (referred to as the partner hardship claim).
(2) If the applicant were removed to England, the applicant's immediate and extended family otherwise in Australia would suffer substantial emotional hardship (referred to as the family hardship claim).
70 It was submitted that:
(1) the Tribunal's reasons show a failure to engage in an "active intellectual process" with respect to the partner hardship claim and the family hardship claim - cf: Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352;
(2) the applicant was denied procedural fairness in respect of those two claims because the Tribunal failed to:
(a) respond to a "substantial, clearly articulated argument relying upon established facts" - cf: Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088 at [24] (Gummow and Callinan JJ); Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319 at [90]; or
(b) deal with claims raised by the evidence and the contentions before it, which, if resolved in one way, would or could be dispositive of the review - cf: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at [63] (Black CJ, French and Selway JJ); Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531 at [25], [30] (Rangiah J).
71 As to the principles in Carrascalao, the Full Court (Reeves, O'Callaghan and Thawley JJ) stated in Singh v Minister for Home Affairs [2019] FCAFC 3 at [34] to [37]:
[34] The principle is directed to the question whether the jurisdiction reposed in the decision-maker is in fact exercised and exercised in a way which is authorised by the statute. If the decision-maker does not actively consider a mandatory consideration, the decision-maker has not exercised the jurisdiction the statute contemplated the decision-maker would exercise. Likewise, a Tribunal charged with "review" may commit jurisdictional error in failing to exercise the jurisdiction it was contemplated it would exercise, if - for example - it does not engage in an active intellectual process or give proper, genuine and realistic consideration to:
• a "substantial, clearly articulated argument relying upon established facts" - see: Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at [24] per Gummow and Callinan JJ, with whom Hayne J agreed;
• a claim "raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review" - see: NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 at [63] per Black CJ and French and Selway JJ; or
• a matter "that is an essential integer to an applicant's claim or that would be dispositive of the review" - see: ETA067 v The Republic of Nauru (2018) 360 ALR 228 at [14] per Bell, Keane and Gordon JJ.
[35] However, it is important to recognise that the ultimate concern is with the identification of jurisdictional error: the Tribunal not performing the function entrusted to it or not performing it in an authorised way. The Full Court in Carrascalao at [32] cautioned against allowing this ground for judicial review to slide into merits review (emphasis in original):
The Court is mindful of the necessity to avoid straying into a review of the merits of the Minister's decisions (see the frequently cited statements of Brennan J in Attorney-General (NSW) v Quin [1990] HCA 21; 170 CLR 1 at 35-37). The Court acknowledges that an expression such as "proper, genuine and realistic consideration" can, if taken out of context, encourage a "slide" into an impermissible merits review (see the observations of the High Court in Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; 243 CLR 164 (SZJSS) at [30] per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ, who referred with apparent approval to Basten JA's comments on this matter in Swift v SAS Trustee Corporation [2010] NSWCA 182 at [45]).
[36] The principle does not require the decision-maker to refer in the reasons to every piece of evidence and every contention made: Carrascalao at [45]; ETA067 at [13]. However, if a critical piece of evidence or a particular issue is not referred to, that fact might be one from which an inference can appropriately be drawn that the decision-maker did not consider it. That, in turn, may be relevant to whether the decision-maker engaged actively with the matter.
[37] In determining whether the decision-maker had an active intellectual engagement, the following matters are relevant:
(1) First, the degree of consideration which is necessary for the jurisdiction to have been exercised, and exercised in a manner which is authorised, is affected by the centrality of the matter, which it is said was not engaged with, to the issues and the prominence the matter assumed.
(2) Secondly, in examining the reasons of the decision-maker to determine whether there was a lack of intellectual engagement:
(a) the reasons should not be scrutinised "minutely and finely with an eye keenly attuned to the perception of error": Carrascalao at [45], quoting Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [30];
(b) it is necessary to read the reasons in light of the whole case as it was before the Tribunal, which might have involved more issues than are raised, and more evidence than is, before courts on judicial review and subsequent appeal. The failure to mention a particular paragraph of a particular piece of evidence should be analysed by reference to the whole of the material before the Tribunal and its prominence assessed by reference to all of the issues and the way in which the matter was conducted in the Tribunal; and
(c) a conclusion that the decision-maker has not engaged in an active intellectual process "will not lightly be made and must be supported by clear evidence, bearing in mind that the judicial review applicants carry the onus of proof": Carrascalao at [48].
72 The principles in Carrascalao apply to the implicit requirement in s 501CA to consider, as a whole, representations made in accordance with an invitation under s 501CA(3)(b): Minister for Home Affairs v Omar [2019] FCAFC 188 at [36(d)]-[37] (Allsop CJ, Bromberg, Robertson, Griffiths and Perry JJ).
73 In his initial request for revocation of the mandatory visa cancellation decision, the applicant and his family made a number of representations to the delegate about the impact non-revocation would have not only on the applicant, but also his family members. When asked to describe the impact non-revocation would have on his partner and on his children, the applicant said:
We [he and his partner] do everything together. We have been together for about seven special and amazing years. Since I've been with [my partner], I've found that I have settled down a hell of a lot and it would totally destroy her if my visa is cancelled. And [sic] they send me back to England. [My partner] has mental health issues witch [sic] has ended her in hospital a number of times. I'm her carer - lover - best friend and I feel that there is no way she would cope if I'm deported.
…
If my visa is cancelled it would affect my relationship [with my children] dearly. I feel it would end our relationship because I would never be able to see or be in there [sic] daily activities in life... I also feel that they would not have the finances to come to England.
74 These comments were made in direct response to questions in the revocation request form about the impact the cancellation of the applicant's visa would have on his partner and children. The applicant made his request from the Goulburn Correctional Centre and was not represented.
75 In a letter of support included with the applicant's non-revocation request, the applicant's partner said:
I am writing this letter in support for my partner [FCFY]. I understand that DIAC are thinking of cancelling [FCFY's] visa due to his criminal history. I am writing this letter asking you to consider how his removal would affect both our families.
…
[FCFY] is very close to both his children and his grandchildren. They would be devastated to lose their Dad and Poppy. … Our families would suffer greatly as their [sic] is little chance of being able to travel to England to see him.
…
I suffer from depression and anxiety. If [FCFY] was to be removed from Australia I don't know how I would cope as he is my shoulder and rock to lean on most of the time. I truly believe my condition would worsen if [FCFY] was to leave.
76 In a letter dated 14 March 2012, sent to the Department for an earlier character consideration under s 501 of the Act, the applicant stated:
My children and de facto partner need me here in Australia for we are a very close family and it will destroy them if I'm sent back to England.
77 Also before the Tribunal was the delegate's decision. The delegate recorded at [55] and [58]:
55. I have taken into account the submissions of both [FCFY] and his partner [redacted] that they have been in a relationship for seven years and that [his partner] suffers from depression and anxiety. It has been submitted that the couple plan to live in Goulburn, that [FCFY] has been a support for [his partner] and that her condition would deteriorate if he were removed from Australia. I accept that this is so, but note that should he continue to offend, he would again be unavailable to her, as he has been for substantial periods in the past.
…
58. I have considered the effect of non-revocation upon [FCFY's] immediate family in Australia and accept that those persons would experience emotional hardship.
78 After the delegate's decision, the applicant put forward further material to the Tribunal, which included the following:
(1) A friend of the applicant stated, in an undated letter of support:
So many people including myself and [FCFY's] children / grandchildren are absolutely devistated [sic] in that [FCFY] could potentcially [sic] be deported.
It has affected both [FCFY] and all of his loved ones gravely.
(2) In a letter of support dated 1 September 2018, the applicant's sister stated:
[FCFY] is my brother. I grew up with him all my life. [FCFY] has been a solid support for me and my kids his nieces and nephews. I have only a handfull [sic] of family members that are involved in my life & kids life.
Family to me is a very special thing and to have my brother [FCFY] taking [sic] away from us will be very devastating and to know it will be to a foreign country would make it inconsolable.
(3) The applicant's step-son said, in a letter dated 15 September 2018:
It would hurt if [FCFY] leaves as it would be like losing another father. He has emotionally helped me through life and replaces the father that I don't have.
If [FCFY] is deported to England I fear I would never see him again as there is little to no chance of me being able to go and see him.
Not only am I worried about how his deportation will affect my life, I am also worried about how it would affect my mum. My mother's mental health will be of concern to me if [FCFY] is removed from Australia and she will not be able to afford to follow him across the world. His deportation will also affect our whole family in a negative way.
79 In Omar at [34(e)], the Full Court confirmed that representations made in response to the invitation under s 501CA(3) are, viewed as a whole, a mandatory relevant consideration, but not every statement in the representations can be so described. The Minister has a statutory duty to consider whether or not he or she has the requisite state of satisfaction to revoke the cancellation by reference to the material in the representations. If the decision-maker failed to consider a matter of sufficient substance put forward in representations as "another reason" for revocation, the state of satisfaction reached under s 501CA(4)(b)(ii) could not be said to have been formed on the basis of the representations and the jurisdiction would not have been exercised in the manner contemplated by the statutory scheme. The significance of any particular matter raised in the representations is to be assessed by reference to the manner in which the matter is expressed (Omar at [34(g)]) and its objective importance.
80 The Full Court in Omar at [34(g), (i)] referred to the decision of Colvin J in Viane at [67]-[69], where his Honour said:
[67] In this case, s 501CA imposes an obligation to invite representations and then form a view as to whether the Minister is satisfied as to whether there is "another reason" to revoke the cancellation of a visa. So, if representations are made, there is a statutory obligation upon the Minister to consider whether to exercise the power conferred by s 501CA(4). In order to properly discharge that obligation, the Minister must not overlook the representations. A state of satisfaction that is formed without considering the representations is not a state of satisfaction of a kind that the Migration Act requires.
[68] Further, it is not enough to have regard to only some of the significant matters raised in the representations. In such a case the obligation to form the state of satisfaction by reference to the representations would also not be met. So, the obligation to consider extends to significant matters being those that may with other matters carry sufficient weight or significance to satisfy the Minister to revoke the cancellation. Further, those matters must be made manifest as significant matters by the manner in which they are expressed in response to the invitation that the Minister is required by s 501CA(3) to extend.
[69] All of which does not mean that each matter in the representations is a mandatory relevant consideration such that a failure to bring the consideration to account in performing the statutory task (that is, in forming the required state of satisfaction) would be a jurisdictional error. Such an approach would elevate a requirement to consider significant matters raised in representations to an obligation to form the required state of satisfaction by giving weight to each of the considerations raised in the representations.
81 For the reasons which follow, the Tribunal did not lawfully exercise the jurisdiction entrusted to it, because it did not consider or make findings about a significant matter put forward by the applicant as "another reason" for revoking the visa cancellation. It follows that the state of satisfaction under s 501CA(4) reached by the Tribunal was not a state of satisfaction of the kind required. The significant matter not considered was the impact the cancellation of the applicant's visa would have on the applicant's family, in particular, his partner. The impact that the visa cancellation had, or - more accurately - the impact the consequent separation of the applicant from his family would have, was clearly raised. It was raised in response to questions about the issue in the revocation request form; it was raised in the documents which accompanied the form; it was addressed by the delegate whose decision the Tribunal was reviewing; it was raised in material provided to the Tribunal. As is further explained next, whilst the Tribunal dealt with the impact that visa cancellation would have on the applicant, it did not actively consider the impact visa cancellation and consequent separation would have on the applicant's family and partner as "another reason" why the visa cancellation should be revoked.
82 In dealing with the third primary consideration, "the expectations of the Australian community", the Tribunal referred to certain evidence before it, which it took into account for the specific purpose of weighing in the applicant's favour contributions he made to his family relationships. It stated at T[56] (footnotes omitted):
Having regard to the principles set out in paragraph 6.3 of the Direction, set out in paragraph 13 above, I am mindful the Australian community anticipates a nuanced and balanced approach to considering the extent to which the applicant is a member of the Australian community even though he is not a citizen. The deliberation of Australian community expectations involves "bringing appropriate perspective and proportionality to bear in the assessment of risk". I therefore consider any positive contributions the applicant has made to society, such as employment, community activities and/or family relationships; and weigh this against his adverse and antisocial behaviour.
83 The Tribunal then proceeded to record certain matters relevant to the applicant's positive contribution to family relationships. The Tribunal referred at T[59] to evidence that the applicant had a "close and supportive" relationship with his partner and that "she suffers from generalised anxiety and post-traumatic stress disorder and relies heavily on the applicant for emotional support". Whilst it is open to read these references as a simple recounting of evidence, there is nothing to suggest that the Tribunal did not accept the evidence. The better reading is that the Tribunal did accept what was said.
84 The Tribunal referred, at T[60], to evidence that the applicant had a close relationship with his partner's son, who considered that the applicant's removal "would be like losing another father figure [as he] has emotionally helped me through life and replaces the father that I don't have". Again, the Tribunal should be understood as implicitly accepting what had been said.
85 The Tribunal also noted evidence provided by the applicant's sister and evidence provided by his friend, which confirmed the applicant's role as a "kind, big hearted, genuine man" in the lives of his family and friends: T[61].
86 None of those matters was analysed for the purpose of making a finding about the impact that the applicant's removal from Australia would have on the applicant's partner or family. The various matters were referred to, as has been mentioned, to recognise the applicant's positive contribution to his family in order to reach a view about "the expectation of the Australian community".
87 The Minister submitted that these findings should be taken as findings about the impact on the applicant's family and partner. I reject that submission. It is plain from the structure of the Tribunal's reasons and what it stated T[56] that the Tribunal was assessing the applicant's contribution to family and was not assessing or engaging intellectually with the quite different question of what impact visa cancellation and consequent removal from Australia would have on the applicant's family and partner. The fact that this evidence is relevant to the question of whether the applicant's removal from Australia would have an impact on his partner and family does not mean that the Tribunal was referring to it for that reason or engaging with the material in order to assess and take into account that impact. It was not. The evidence was relevant to the applicant's contribution to his family and it was being considered for that purpose. Nowhere did the Tribunal state that the impact of removal on the applicant's partner and family was a reason advanced for revocation of the cancellation decision and nowhere did it make an express finding on that issue.
88 In the context of examining the "strength, nature and duration of ties to Australia", the Tribunal set out the terms of cl 14.2(1)(b) but made no finding concerning the impact the applicant's removal would have on his family. This is significant because cl 14.2(1)(b) expressly directed attention to "the effect of non-revocation on the non-citizen's immediate family in Australia". Given this express reference in cl 14.2(1)(b), it is in this section of the Tribunal's reasons where one would expect to see the matter addressed if it had been given consideration. The impact of non-revocation on the applicant's partner and family was not stated to be an issue and there was nothing which could fairly be seen as indicating that the issue was in fact considered.
89 The Minister submitted that the Court should infer from the fact that the terms of cl 14.2(1)(b) were set out in the reasons that the Tribunal considered the impact of the applicant's removal on his family, despite the fact that there was no reference in the reasons to that being an issue to be considered or any express finding as to what conclusion the Tribunal reached in that regard. The Minister submitted it would be unfair for this Court not to conclude that there was an implicit finding about the impact of separation on the applicant's partner or family.
90 The Minister's submission must be rejected. The Tribunal had an obligation to set out the reasons for its decision: s 43(2) of the Administrative Appeals Tribunal Act 1975 (Cth). That included an obligation to set out its findings on material questions of fact and to refer to the evidence or other material on which those findings were based: s 43(2B). Where there is a statutory obligation to provide reasons, the Court is entitled to infer that a matter not mentioned in the reasons was not considered to be material: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [5], [9]-[10] (Gleeson CJ), [44] (Gaudron J) and [69] (McHugh, Gummow and Hayne JJ); Omar at [34(d)]. Such an inference is available because the Court is entitled, by reason of the terms of the statutory obligation, to take the reasons as setting out the facts the Tribunal considered material to its decision, and as referring to the evidence it considered material to its findings; if something is not mentioned then it may be appropriate to infer that it was not considered material.
91 Reasoning in this way is not mandatory: SZTMD v Minister for Immigration and Border Protection (2015) 150 ALD 34 at [19]-[20] (Perram J); HSKJ at [44]. But it is appropriate in the present case. The Tribunal was dealing with an issue of importance generally and its decision was one which would have devastating consequences for the individuals affected, albeit to varying degrees. In this context, it is to be expected that the Tribunal would ensure that its statement of reasons appropriately and fully informed those affected by it why the decision was made, what its findings were and what material those findings were based upon. A fair and balanced reading of reasons of an administrative decision-maker "should not be so blinkered as to avoid discerning an absence of reasons or reasons devoid of any consideration of a submission central to a party's case": Soliman v University of Technology, Sydney (2012) 207 FCR 277 at [57] (Marshall, North and Flick JJ).
92 The Tribunal recognised that the impact of non-revocation on the applicant was an issue. The Tribunal did not refer to the impact of non-revocation on the applicant's family, in particular his partner, as being an issue. I infer that it did not actively consider that issue. This was a reason of substance which had been advanced as a reason in favour of revocation of the visa cancellation. The Tribunal made no findings on that issue, express or otherwise. If the Tribunal had engaged with the issue of the impact of separation on the applicant's partner and family it would have made express findings on the issue. It did not.
93 In the context of dealing with the "extent of impediments if removed", the Tribunal noted at T[72] the applicant's partner's evidence that she could not financially afford to move to the United Kingdom nor leave her children and grandchildren in Australia. This statement was made in the context of considering the impact of removal on the applicant. It was not a statement intended to address the impact of removal on the applicant's partner.
94 It may be accepted, as the Minister submitted, that the Tribunal was not required to mention each item of evidence or submission put to it in reaching its conclusion: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 at [46]-[47] (French, Sackville and Hely JJ); Minister for Home Affairs v Buadromo (2018) 362 ALR 48 at [48]-[49] (Besanko, Barker and Bromwich JJ). However, it was required to address the representations as a whole and the significant matters which had been put forward as "another reason" for revocation. It did not do so.
95 Ground two is made out.