A JURISDICTIONAL ERROR?
39 Mr G's sole ground of review was that the Tribunal made a jurisdictional error by "failing to complete its statutory task in accordance with s 499 of the [Act] and [Direction no. 79], in that it mistakenly considered at [307] that the circumstances of the case had to be outside those that generally apply in order for it to give greater weight to one primary consideration, or to treat one or more of the other considerations as a primary consideration, and thereby be satisfied that there was another reason to revoke the cancellation of [his] visa".
40 Mr G contended that the Tribunal's mistake was to apply the reasoning in Suleiman to the weighing exercise in circumstances where it did not apply. In Mr G's submission, the reasoning in Suleiman only applied in circumstances where the issue was whether the relevant "other considerations" outweighed the primary considerations. Only in those circumstances is it necessary to establish that the circumstances of the case are outside the circumstances that generally apply. In Mr G's case, however, a primary consideration, the best interests of minor children, weighed in favour of revocation. Mr G's submission was that, in those circumstances, paragraph 8(5) applied and a primary consideration (in Mr G's case, the best interests of minor children) could outweigh the other primary considerations even if his case was not outside the circumstances that generally apply. The Tribunal, however, proceeded on the basis that it could not give greater weight to the best interests of minor children, being the one primary consideration that weighed in favour of revocation, because the circumstances of Mr G's case were not "outside those that generally apply": Reasons at [307].
41 For his part, the Minister accepted that paragraph 8(4) of Direction no. 79 should be read conformably with the reasoning in Suleiman and accepted that non-compliance with Direction no. 79 may constitute jurisdictional error: see Uelese v Minister for Immigration and Border Protection (2015) 256 CLR 203; [2015] HCA 15 at [64]. Uelese concerned an even earlier version of Direction no. 79 (Direction no. 55), though it has recently been held that the same applies to non-compliance with Direction no. 79: see RGKY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 750 at [56].
42 The Minister submitted, however, that the impugned sentence of the Tribunal's reasons should not be read as Mr G would have it; that is, as suggesting that the Tribunal could not give greater weight to the best interests of minor children, a primary consideration, unless satisfied that the circumstances were outside those that generally apply. The Minister submitted that that would be a "curious" construction of the Tribunal's reasons given that the reasoning in Suleiman said nothing about paragraph 8(5) of Direction no. 79 and the Tribunal had earlier in its reasons accurately set out paragraph 8(5) and the effect of the reasoning in Suleiman in relation to paragraph 8(4).
43 The Minister valiantly tried to give some inoffensive or unobjectionable meaning to the impugned sentence in the Tribunal's reasons. He contended that the sentence was not about weighing one primary consideration against other primary considerations, but rather was about weighing one primary considerations against other considerations. It was suggested, in that regard, that the Tribunal was saying that the circumstances of the case would have to be outside the circumstances that ordinarily apply before one primary consideration (relevantly here, the best interests of minor children) was to be given more weight than one or more other considerations. In the alternative, it was said that the impugned sentence was, in effect, just a slip of the pen, and that the Tribunal was saying that it would need to be outside the circumstances that ordinarily apply if one other consideration was to be given more weight than the other considerations.
44 The Minister, of course, stressed that the impugned sentence must be read in the context of the Tribunal's reasons as a whole and that the reasons should not be read "minutely and finely with an eye keenly attuned to the perception of error": Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-271.
45 The issue is not easy to resolve.
46 On the one hand, but for the impugned sentence, and perhaps the following one, the Tribunal's reasons are essentially faultless and unimpeachable. No complaint was or could be made concerning the findings the Tribunal made in respect of each of the relevant considerations. More significantly, the concluding paragraph of the Tribunal's reasons would suggest that the Tribunal simply found that the two primary considerations that weighed against revocation, protection of the community and the expectations of the community, outweighed all of the primary and other considerations which weighed in favour of revocation.
47 On the other hand, it is difficult to read the impugned sentence in the Tribunal's reasons as meaning anything other than that the Tribunal considered that it could not give greater weight to the one primary consideration which weighed in favour of revocation, the best interests of minor children, unless the circumstances were other than those that generally apply. The Minister's attempts to provide another interpretation of the impugned sentence are strained and unpersuasive and the attempted rectification of the sentence is speculative. That is so even when that sentence is read in the context of the reasons as a whole, and even when the sentence is read in a beneficial and not overzealous way. It is tolerably clear that the Tribunal was attempting to give effect to what it perceived to be the effect of what was said in Suleiman in respect of paragraph 8(4) of Direction no. 79 and that that attempt went awry.
48 As discussed earlier, it is somewhat doubtful that the weighing of the relevant considerations should be approached by conducting an inquiry into whether the circumstances of the case are "outside those that generally apply". That is to overcomplicate the direction in paragraph 8(4) of Direction no. 79. But even if it be accepted that paragraph 8(4) of Direction no. 79 means that one or more of the other considerations which weigh in favour of revocation can only be given greater weight than primary considerations if the circumstances of the case are outside the circumstances that generally apply, that principle or proposition does not apply when it comes to considering whether one primary consideration can be give greater weight than other primary considerations. Under paragraph 8(5) of Direction no. 79, a primary consideration, such as the best interests of minor children, can outweigh other primary considerations, even if the circumstances of the case are not outside those that generally apply.
49 It is difficult to avoid the conclusion that the Tribunal appeared to consider that it was somehow constrained in weighing up or balancing the relevant considerations in a way which was not in fact justified or mandated by paragraph 8 of Direction no. 79. The Tribunal accepted that the best interests of minor children in Australia with whom Mr G had a relationship weighed heavily in favour of revoking the visa cancellation. So too did at least one of the other considerations. The Tribunal appears, however, to have proceeded on the basis that those considerations could not outweigh the primary considerations relating to the protection of the Australian community and the expectations of the Australian community, both of which weighed against revocation, unless the circumstances of Mr G's case were outside of those that generally apply. The Tribunal erred in approaching the balancing exercise in that way. It was erroneous, in the circumstances, to approach the exercise by considering whether the circumstances of Mr G's case were outside the circumstances that generally apply, whatever that may mean. It would have been open to the Tribunal to conclude that the consideration relating to the best interests of minor children outweighed all other considerations, even if it did not consider that the circumstances were outside those that generally apply.
50 While a failure to comply with Direction no. 79, or an error arising from a misunderstanding or misconstruction of Direction no. 79, can undoubtedly constitute or involve jurisdictional error, such a failure or error does not necessarily constitute or involve jurisdictional error. It will only constitute or involve jurisdictional error if the failure or error can be said to be material, in the sense that compliance or a proper application of the direction could, not would, realistically have resulted in a different decision: Hossain v Minister for Immigration and Border Protection (2019) 264 CLR 123; [2018] HCA 34 at [31]; Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3 at [45]. Materiality, in that regard, is a "question of fact in respect of which an applicant bears the onus of proof": SZMTA at [46]; MZAPC v Minister for Immigration and Border Protection [2021] HCA 17 at [39].
51 The task of determining whether non-compliance or an error in decision making was material in the relevant sense is not always easy. In approaching that task, it is necessary to consider how the Tribunal's decision was in fact made: SZMTA at [50]; MZAPC at [38]. There may, however, be some "element of reconstruction involved", as it is necessary to assess what the Tribunal may have decided if the non-compliance or error had not occurred: Chamoun v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 276 FCR 75; [2020] FCAFC 66 at [70]. In a case such as this, however, the better approach is to evaluate whether or not the relevant non-compliance or error was of "such marginal significance to the issues that it could not realistically have affected the result": XJLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 619 at [105].
52 The issue of materiality is again not easy to resolve. Neither Mr G nor the Minister advanced any real submissions in relation to the issue.
53 I am ultimately not satisfied that Mr G has discharged his onus of establishing that the Tribunal's error in applying paragraph 8 of Direction no. 79, or approaching the weighing or balancing exercise, was material. I am not persuaded that compliance or a proper application of Direction no. 79 could realistically have resulted in a different decision.
54 When the Tribunal's reasons are read as a whole, it is difficult to accept that the Tribunal might have reached a different conclusion in respect of the weighing or balancing exercise if it had not considered the issue in terms of whether or not the circumstances of Mr G's case were outside those that generally apply. That conclusion is fortified by the terms of the concluding paragraph of the reasons, in which the Tribunal unequivocally states that in its view the two primary considerations of protection of the community and the expectations of the community, which "heavily" and "considerably" militated against revocation of the visa cancellation, outweighed all of the other considerations which weighed in favour of revocation. When regard is had to the Tribunal's earlier reasoning in respect of each of those considerations, it can readily be seen how the Tribunal reached that conclusion.
55 Equally, when read in the context of the Tribunal's reasons as a whole, the fleeting but erroneous reference, in the penultimate paragraph, to Suleiman and the question of whether Mr G's circumstances were outside those that generally apply, can readily be seen to be of such marginal significance that it could not realistically have affected the result. There are no other indications in the Tribunal's reasons that it approached the weighing or balancing exercise by inquiring into whether Mr G's circumstances were other than those that generally apply, or that that consideration really played any role or had any material effect on the conclusion reached by the Tribunal.