4.2 No error has been established in the Tribunal's consideration of s 501CA(4)(b)(ii)
36 The correctness of the applicant's distinction between the exercise of a discretion, on the one hand, and the question of whether a decision-maker has reached a particular state of mind as a condition precedent to an exercise of the power, on the other hand, was rightly accepted by the Minister. That distinction was discussed by Derrington J (Perry and O'Sullivan JJ agreeing) also in the context of s 501CA(4)(b)(ii) of the Migration Act in Au. Relevantly, Derrington J explained at [33] that:
The importance of the type of discretion being considered is that the decision-maker's autonomy extends to the outcome of a particular decision so long as it falls within the scope of the power in the sense that it is not unreasonable. One might regard a statutory obligation on a decision-maker to be satisfied of a particular matter as a condition precedent to the exercise of power as being far less than a discretion. Although the formulation of a state of mind equating to a satisfaction that a thing exists might involve elements of subjectivity in assessing the facts and circumstances relevant to the existence or otherwise of the thing, it cannot be said that whether the state of mind exists or not has any discretionary element to it. The formation of the state of mind might be regarded as the exercise of a discretion "in a sense" or "in a broad sense": Coal and Allied Operations v AIRC [(2000) 203 CLR 194, 205 at [20]: however, the two activities do not involve the same mental process.
37 Accordingly, Derrington J held that "forming a state of mind is, both functionally and legally, substantively different from exercising a general discretion", rejecting the Minister's submission to the contrary (at [36]-[37]). Similarly, O'Sullivan J in Au held at [154] that "the evaluative task required to be undertaken in reaching, or not reaching, a state of satisfaction is not the same as approaching the question from the perspective of the exercise of a discretion."
38 Relevantly in the context of s 501CA(4)(b)(ii), in determining whether the decision-maker is satisfied that there is "another reason" for revoking a visa cancellation, "the decision-maker undertakes the assessment by reference to the case made by the former visa holder by their representations": Plaintiff M1/2021 v Minister for Home Affairs [2002] FCA 17; (2022) 275 CLR 582 at [22]; see also Au at [38] (Derrington J). Similarly, O'Sullivan J in Au held at [139] that:
Whether or not the state of the satisfaction required for s 501CA(4)(b)(ii) is reached, is the subject of an evaluative exercise to be undertaken by the decision-maker, taking into account the representations of the applicant which are clearly articulated or which clearly arise on the materials before them: Plaintiff M1/2021 at [25] (Kiefel CJ, Keane, Gordon, Steward JJ); Minister for Home Affairs v Omar [2019] FCAFC 188; (2019) 272 FCR 589 at 602-604 [34], (Allsop CJ, Bromberg, Robertson, Griffiths, Perry JJ), and the matters in Direction 79: Gaspar at [38]-[39] (North ACJ); Viane (Colvin J at 64-79); and Marzano (Collier J at [32]).
39 Ultimately, therefore, the disposition of ground 1 turns not upon an issue of law about which there was no issue, but upon the proper construction of the Tribunal's reasons.
40 As the Minister contends, the reasons of the Tribunal must be read fairly and as a whole: Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; (2015) 258 CLR 173 at [59]-[60]. In this regard, it is well established that the reasons of an administrative decision-maker "are not to be construed minutely and finely with an eye keenly attuned to the perception of error": Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259, 271-2 at [30] (Brennan CJ, Toohey, McHugh and Gummow JJ (quoting with approval Collector of Customs v Pozzolanic (1993) 43 FCR 280 at 287)). As such, when it is said that such reasons should be read beneficially, ultimately this means that "a commonsense and realistic approach should be taken to understanding the reasons as a whole to see what it was that the Tribunal was saying": Fang Wang v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1044 at [14]-[15] (Allsop J (as his Honour then was)).
41 In Au, on which the applicant relies by analogy, the Full Court held that there was nothing in the Tribunal's reasons which suggested that it had understood the correct question posed by s 501CA(4)(b)(ii). Rather, Derrington J (Perry and O'Sullivan JJ agreeing) held at [22]-[23] that the Tribunal:
…expressly directed itself to the exercise of what it perceived to be a discretion in s 501CA(4) as to whether it should or should not revoke the cancellation decision. It seems to be undoubted that when the Tribunal member referred to a "discretion", he intended that to be an accurate description of the power in question.
Secondly, the express and repeated statements by the Tribunal member that he was exercising a discretion cannot be ignored. He is a Senior Member of the Tribunal and a member of the legal profession. As such, the distinction between a discretion and the formation of a state of satisfaction would have been readily understood. It is not reading the reasons too finely to attribute to the Tribunal an approach that it repeatedly said it was adopting.
42 Similarly, O'Sullivan J did not accept the Minister's submissions that the many references to exercising a discretion in the Tribunal's reasons in that case could properly be characterised as "looseness in language"(at [151]).
43 I agree with the Minister, however, that read in line with the principles outlined above, this case does not fall into the same category as Au for the following reasons. While the Tribunal's reasons are not entirely satisfactory, read fairly and holistically they do not reveal that the Tribunal misunderstood the nature of its task under s 501CA(4)(b)(ii) in determining whether there was another reason for revoking the visa cancellation.
44 In support of his submissions, the applicant placed weight upon the description by the Tribunal at [10] under the heading "Legislative framework" of "the issue" being "whether the discretion to revoke the mandatory cancellation of the Applicant's visa may be exercised" (emphasis added). However, that submission, with respect, takes the statement out context as immediately after that statement the Tribunal explained:
This requires the Tribunal to address these two issues:
(a) whether the Applicant passes the character test; and, if not,
(b) whether there is another reason why the decision to cancel the Applicant's visa should be revoked.
45 This further explanation correctly sets out the Tribunal's task and strongly suggests that the Tribunal was using the word "discretion" at [10] interchangeably with the word "power", as the Minister submits, or as a short-hand description of the evaluative exercise which s 501CA(4)(b)(ii) requires the decision-maker to undertake. That understanding is supported by the correct statement again by the Tribunal at [17] of the test in s 501CA(4)(b)(ii), having found that the applicant has a substantial criminal record with the result that the requirements of s 501CA(4)(b)(i) are not met.
46 The applicant also relied upon the reference at [18] of the Tribunal's reasons to "considering whether to exercise this discretion". However, the reference to discretion at [18] appears immediately beneath the heading "Is there another reason why the original decision should be revoked under subsection 501CA(4)?" which correctly states the statutory task, suggesting that the Tribunal was again using word "discretion" interchangeably with the word "power" or as referring to the evaluative exercise required by s 501CA(4)(b)(ii).
47 The applicant further submitted that, in considering each of the factors, including family ties, the Tribunal "uses the language of discretion, being a weighing-up exercise, and that is quite a different evaluative test than is required for reaching a state of satisfaction." It is correct to say that the Tribunal expressly engages in a process of weighing the different considerations. However, that does not indicate that it misunderstood the nature of the process required by s 501CA(4)(b)(ii). To the contrary, it reflects the evaluative nature of the decision-making process required in reaching, or not reaching, a state of satisfaction and accords with the approach of weighing primary and other considerations set out in Direction 99, as the Tribunal recognised at [24] quoting Suleiman v Minister for Immigration and Border Protection [2018] FCA 594. Thus, for example, in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41; (2021) 274 CLR 398 at [15], the High Court explained that, in deciding whether "another reason" exists for the purposes of s 501CA of the Migration Act, "matters of judgement" may be involved, "especially when weighing factors for and against revocation." Similarly, Gordon J in Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 276 CLR 80 at [71] explained that:
The Tribunal's task under s 501CA(4) of the Migration Act was evaluative. In deciding whether there is "another reason" why a visa cancellation decision should be revoked, a decision-maker must evaluate representations made in response to an invitation issued under s 501CA(3)(b), assess and weigh relevant evidence and material, and weigh and balance considerations for and against revocation.
(See also, e.g., North ACJ in Gaspar v Minster for Immigration and Border Protection [2016] FCA 1166; (2016) 153 ALD 337 at [38].)
48 In turn, as Kennett J explained in Demir v Minister for Immigration, Citizenship and Multicultural Affairs (2023) FCA 870 at [21]:
The metaphor of "weighing" relevant considerations should not be taken too literally. The exercise is not mathematical and cannot depend on the simple aggregation of factors on each side of a ledger. The conclusion as to whether there is "another reason" for the purposes of s 501CA(4)(b)(ii) necessarily involves persuasion of a human decision-maker, whose thought processes cannot be reflected in lines of code, as to what is the right result in the circumstances. That persuasion flows from the decision-maker's personal understanding as to the significance of each of the factors they are required or permitted to take into account, in the light of all the material they have considered. So much is consistent with the decision-maker's duty to "call his own attention to the matters which he is bound to consider"… Correspondingly, the statutory specification of mandatory considerations requires those considerations to be taken into account, but not necessarily to be given any particular degree of weight…
49 As such, while there is a distinction between the exercise of a discretion and the question of whether the decision-maker is satisfied that another reason exists, both require an evaluative process of weighing relevant considerations to be undertaken and in both contexts, reference to the metaphor of weighing the considerations is orthodox.
50 Finally, the Tribunal's reasons at [169] wrongly identify the question before the Tribunal, stating that:
Having regard to all the relevant circumstances, the Tribunal finds that the proper application of the Direction favours the Tribunal exercising the discretion to refuse to grant the Applicant's Visa. The Tribunal finds that there is "another reason" pursuant to subsection 501CA(4)(b)(ii) of the Act to refuse to grant the visa.
51 The Tribunal was not, of course, deciding whether to affirm a decision to refuse to grant a visa; nor does s 501CA(4)(b)(ii) ask whether there is another reason to refuse to revoke the cancellation of a visa but only whether there is another reason to revoke the cancellation. However, those errors are not otherwise evident in the Tribunal's reasons. In the immediately preceding paragraphs of the Tribunal's reasons under the heading "Conclusion", the Tribunal sets out its findings on whether the various considerations weigh in favour of, or against, revocation or are neutral, and concludes at [170] that:
The Tribunal is not satisfied that there is another reason to revoke the mandatory cancellation of the Applicant's visa.
52 Paragraph [171] then sets out the Tribunal's decision affirming the delegate's decision "not to revoke the mandatory cancellation" of the visa. Thus, in context, the misstatements at [169] are likely to be the result of loose and rushed drafting and proofing, given that the decision was made on 28 July 2023 which was the 84th day after the applicant was notified of the delegate's decision. It was, therefore, the last date on which the Tribunal could make a decision on the review before the delegate's decision was taken to have been affirmed by force of s 500(6L) of the Migration Act.
53 Read as a whole, therefore, I do not consider that the Tribunal's reasons reveal that it misunderstood the nature of the task which it was required to undertake by s 501CA(4)(b)(ii) of the Migration Act.