Holloway v Minister for Immigration, Citizenship and Multicultural Affairs

1. The time for lodging the application for review is extended to enable the application to be lodged.
2. The decision of the second respondent is quashed.
3. The matter is remitted to the second respondent for determination according to law.
4. The first respondent pay the applicant's costs to be assessed on a lump sum basis by a registrar of not agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

COLVIN J: 1 Mr Jesse Holloway is a Canadian citizen. He has lived in Australia since 1997. In November 2019 his visa was cancelled under s 501(3A) of the Migration Act 1958 (Cth). He made representations requesting revocation of the visa cancellation under s 501CA. A delegate of the Minister refused to revoke the cancellation. Mr Holloway applied to the Administrative Appeals Tribunal to review the delegate's decision. The Tribunal affirmed the delegate's decision. The Tribunal's decision was quashed and on 22 April 2022, the Tribunal again affirmed the delegate's decision. Mr Holloway now seeks review for alleged jurisdictional error of the Tribunal's second decision. He needs an extension of time of one day in order to do so. The extension is not opposed by the Minister. 2 Mr Holloway advances one ground of review. It is to the effect that, in making its decision, the Tribunal failed to comply with a written direction of the Minister, namely 'Direction No. 90 - Visa refusal and cancellation under section 501 and revocation of mandatory cancellation of a visa under s 501CA' (Direction). The Direction was given under s 499(1) of the Migration Act which provides that the Minister 'may give written directions to a person or body having functions or powers under this Act' if the directions are about the performance of those functions or the exercise of those powers. The person or body must then comply with the direction: s 499(2). 3 A failure to comply with a direction made under s 499 may constitute jurisdictional error: FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 19 at [6]; and Bochenski v Minister for Immigration and Border Protection [2017] FCAFC 68; (2017) 250 FCR 209 at [65] (Bromwich J, Bromberg and Charlesworth JJ agreeing). 4 The Direction designates 'primary' and 'other' considerations to which a decision-maker is to have regard in exercising the discretion conferred by s 501CA in instances where the decision-maker is satisfied that the visa applicant does not satisfy the character test. It requires those considerations to be taken into account, where relevant: para 6. It also provides that primary considerations should generally be given greater weight than other considerations: para 7(2). 5 The 'other' considerations include the 'extent of impediments if removed': para 9(1)(b). As to that consideration, the Direction says (para 9.2(1)): Decision-makers must consider the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account: a) the non-citizen's age and health; b) whether there are substantial language or cultural barriers; and c) any social, medical and/or economic support available to them in that country. 6 Before the Tribunal, Mr Holloway was legally represented. Submissions were advanced to the effect that he had an issue with addiction to substances that included solvents, cannabis, heroin and methylamphetamine. It was submitted that: It is reasonably foreseeable that the Applicant would relapse into serious drug misuse were he to be removed to Canada due to the stress, devastation and hopelessness he would feel at being returned to a country where he would be separated from his family, where he had limited social supports and where he has only bad, if not traumatic, childhood memories … Any serious drug misuse would affect the Applicant's health and impact on his ability to establish himself to a basic standard of living. 7 In considering the extent of impediments raised by the submissions, the Tribunal reasoned as follows concerning what was required by para 9.2(1) (at para 180 of its reasons): To my mind, the terms of this particular sub-paragraph 9.2(1)(a) should not be construed on the basis of what might go wrong, or what could be reasonably foreseen to go wrong with an Applicant's health in the event of a removal. It is, I think, intended to operate on the here and now. That is, it asks the question: 'what health issue(s) does this Applicant suffer from and how does that current health difficulty/difficulties act as an impediment to that person's re-establishment in the intended country of removal?' (original emphasis) 8 The Tribunal then dealt with the consideration in the following way (at para 181 of its reasons): I am thus not of the view that this Applicant's age and present state of health represent significant, or insurmountable impediments to his return and resettlement in Canada. 9 By its approach to para 9.2(1), the Tribunal excluded the possibility that Mr Holloway's history of drug misuse and drug addiction may be brought to account in considering the extent of impediments that he might face in establishing himself and maintaining basic living standards if removed to Canada where he would not have family and social support. The Tribunal adopted that approach despite having found that Mr Holloway 'has abjectly failed to sustain any level of sobriety, or non-participation in illicit substances in the past and there is very little, if any, independent and clinical evidence that he will do so in the future' (para 63). It also found that there was a significant likelihood that Mr Holloway would relapse into drug use (paras 66-81). 10 For Mr Holloway it was submitted that on its proper construction para 9.2(1) required the Tribunal to consider the representations that had been made about a health issue, being his addiction to substances and whether that heath issue may impede Mr Holloway in establishing himself and maintaining a basic standard of living in Canada. In effect, it was submitted that his long history with misuse of substances, including illicit drugs, was an aspect of his health that could give rise to an impediment for the purposes of para 9.2(1)(a). By proceeding in the way in which it did, it was said that the Tribunal misconstrued para 9.2(1)(a) by confining its operation to Mr Holloway's current state of health (which did not involve misuse of drugs) and failed to have regard to his history. 11 For the Minister, it was submitted that the Tribunal's approach did not foreclose the possibility that if there was some evidence before the Tribunal about an existing medical condition affecting Mr Holloway of a kind that may give rise to an impediment then it would be considered. It was submitted that the Tribunal's reasoning was to the effect that there was no evidence of any existing health condition before the Tribunal (in the sense that there was no diagnosis of a mental health condition or other pathology that explained the history of drug use in a way that might be considered to form part of his state of health). In effect, the submission advanced was that the history of substance abuse was evidence of past behaviour and propensity but it was not evidence that the behaviour was attributable to a recognised health condition. It was also submitted that there was no evidence which established that removal to Canada would have any bearing upon the health of Mr Holloway. 12 I do not accept the Minister's submissions. The Tribunal did not rest its conclusion upon any factual conclusion as to whether Mr Holloway's history of substance abuse was part of his health. Rather, it reasoned from its construction of what was required by para 9.2(1)(a) to a conclusion based upon Mr Holloway's present health circumstances. In the context of the earlier reasoning concerning the history of substance abuse and his likelihood of relapse into drug use, the Tribunal must be taken to have reasoned that no aspect of that history forms part of Mr Holloway's 'health' for the purposes of the Direction. The narrow construction of the word 'health' that is implicit in the Tribunal's approach was not correct. Used in the phrase 'age and health', the word health would ordinarily be understood to mean any aspect of a person's physical wellbeing and would include the overall state of a person's fitness and condition, including underlying health issues and ongoing effects of any past injury. Within ordinary parlance, a person's status as having a history of substance abuse, especially where there was evidence from which it may be concluded that there was a real risk of relapse into misuse of substances to such an extent that it would be an impediment to a person being able to establish and maintain basic living standards, is aspect of that person's overall health. It is apparent from the other findings by the Tribunal that it accepted that Mr Holloway was such a person. 13 The error by the Tribunal was to confine the term 'health' to only include currently manifested health issues and difficulties. On such an approach, a person who presented with no issue or difficulty living in Australia (with available treatment and social support) but who had an underlying health condition that might be exacerbated if the person was removed to another country in a way that may be life threatening or physically debilitating would not be viewed as having an impediment. A person with a past history of mental illness, or a cancer diagnosis of remission or a medical condition of a kind where the person can maintain reasonable health provided they received regular pharmaceutical or other treatment are all examples of health conditions that would be excluded by the Tribunal's approach which only considers the current state of health of a person. 14 Therefore, I accept that it has been demonstrated that the Tribunal failed to give effect to para 9.2(1) of the Direction. It adopted an unduly narrow view of its meaning. It did so by treating Mr Holloway's state of health as not including his propensity to relapse into substance abuse when, on their proper construction, the words 'age and health', in context, encompassed an existing underlying condition of that kind. It was a 'health related issue' to use the language of Derrington J in GXXS v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 468 at [95]. 15 Of course, there may be reasons why an underlying condition which is being managed or which is in remission or for which there is effective treatment may not be likely to manifest as an impediment. All may depend upon the available care and conditions to which a person is likely to be exposed if removed from Australia to a particular country. However, the Tribunal was in error as to its understanding of what was required by the Direction in treating Mr Holloway as if his present state of health did not include his propensity to relapse into substance abuse (being a fact that it had found and acted upon elsewhere in its reasons). 16 Materiality was in issue on the application. Therefore, in order to demonstrate that there was jurisdictional error by reason of the Tribunal's view, it remained for Mr Holloway to establish that there was a realistic possibility of a different outcome if the error had not been made by the Tribunal: Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123 at [27]-[30]; Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 at [4], [45]-[50]; and MZAPC v Minister for Immigration and Border Protection [2021] HCA 17 at [38]-[39]. 17 In Hossain, Kiefel CJ, Keane and Gageler JJ gave two examples where the threshold for materiality of error would not be met, namely (a) a failure to afford procedural fairness that did not deprive the person who was denied the opportunity to be heard of the possibility of a successful outcome; and (b) where a decision-maker failed to take into account a mandatory consideration which in all the circumstances was so insignificant that the failure to take it into account could not have materially affected the decision that was made. Therefore, the principle was expressed as one which applied both to a failure to meet a requirement to afford natural justice as well as a failure to properly perform the substantive deliberative task. In each case, there was only jurisdictional error if the error was material. This was because the limitations expressed in statutory provisions conferring decision-making authority were generally to be construed on the basis that a decision was only outside the authority conferred (and therefore unlawful) if breach of that limitation was material. 18 In SZMTA, Bell, Gageler and Keane JJ, said at [4]: 'Where materiality is put in issue in an application for judicial review of a decision of the Tribunal, it is a question of fact in respect of which the applicant for judicial review bears the onus of proof'. Their Honours expressed the question to be asked in terms of whether 'compliance could realistically have resulted in a different decision' (at [45]) and 'whether there is a realistic possibility' that the decision could have been different. Again materiality was expressed as applying to 'a breach of procedural fairness … or a breach of an inviolable limitation governing the [the extent of the decision-making authority]'. 19 In MZAPC, Kiefel CJ, Gageler, Keane and Gleeson JJ said that materiality involves 'a realistic possibility that the decision in fact made could have been different had the breach of condition not occurred': at [2]. Whether there was a realistic possibility of a different decision 'was a question of fact'. Later, their Honours explained what was required in the following terms (at [38]): … the facts as to what occurred in the making of the decision must be determined in an application for judicial review on the balance of probabilities by inferences drawn from the totality of the evidence. And like other counterfactual questions in civil proceedings as to what could have occurred - as distinct from what would have occurred - had there been compliance with a legal obligation that was in fact breached, whether the decision that was in fact made could have been different had the condition been complied with falls to be determined as a matter of reasonable conjecture within the parameters set by the historical facts that have been determined on the balance of probabilities. (footnote omitted) 20 The above passage directs attention to whether 'as a matter of reasonable conjecture' compliance with the law could have led to a different result based upon facts found on the balance of probabilities. The language of 'realistic possibility that a different decision could have been made' was used to describe the subject matter of the reasonable conjecture: at [39]-[40]. 21 Significantly, the articulation of the principles to be applied drew no distinction between a case where there was a failure to afford procedural fairness and a case where the repository of a decision-making power exceeded the extent of the authority conferred by failing to perform a requirement as to the nature or character of the decision to be made by the repository. 22 Most recently, in Nathanson v Minister for Home Affairs [2022] HCA 26, the High Court again addressed what is required to demonstrate materiality of a breach of a kind that will amount to jurisdictional error. The case concerned a failure to afford procedural fairness that affected an aspect that the decision-maker was required to consider. Kiefel CJ, Keane and Gleeson JJ described what is required in the following terms (at [32]-[33]): As explained in MZAPC, the materiality of a breach requires consideration of 'the basal factual question of how the decision that was in fact made was in fact made'. This question is determined by proof of historical facts on the balance of probabilities. Then, it is necessary to consider whether the decision that was in fact made could have been different had the relevant condition been complied with 'as a matter of reasonable conjecture within the parameters set by the historical facts that have been determined'. The burden falls on the plaintiff to prove 'on the balance of probabilities the historical facts necessary to enable the court to be satisfied of the realistic possibility that a different decision could have been made had there been compliance with that condition'. There will generally be a realistic possibility that a decision-making process could have resulted in a different outcome if a party was denied an opportunity to present evidence or make submissions on an issue that required consideration. The standard of 'reasonable conjecture' is undemanding. It recognises that a fundamental purpose of affording procedural fairness is to afford an opportunity to raise relevant matters which are not already obvious, or not liable to be advanced by the apparently persuasive 'story' of the opposing party. Where a Tribunal errs by denying a party a reasonable opportunity to present their case, 'reasonable conjecture' does not require demonstration of how that party might have taken advantage of that lost opportunity. Nothing said in MZAPC denies this. To the contrary, the standard of 'reasonable conjecture', correctly applied, proceeds on assumptions that are derived from the rationale for procedural fairness, namely that, if given a fair opportunity to present their case, a party will take advantage of that opportunity and that, by doing so, the party could achieve a favourable outcome. (footnotes omitted) 23 In separate concurring reasons Gageler J said at [45]-[47]: SZMTA and MZAPC are together authority for two cumulative propositions. The first is that a denial of procedural fairness results in a decision being affected by jurisdictional error, so as to be capable of justifying the grant of curial relief, only if that denial is shown by the applicant to have been material to the decision. The second is that the materiality of a denial of procedural fairness is shown by the existence of a realistic possibility that the decision could have been different had procedural fairness been observed. SZMTA and MZAPC do not hold that, in order to meet the threshold of materiality, an applicant for relief must establish any part of what would have occurred on the balance of probabilities had a fair opportunity to be heard been afforded. The onus which the applicant bears to establish materiality is no greater than to show that, as a matter of reasonable conjecture within the parameters set by the historical facts established on the balance of probabilities, the decision could have been different had a fair opportunity to be heard been afforded. Establishing that threshold of materiality is not onerous. 24 I observe that the reasoning by Gageler J is expressed in terms that reflect the nature of the case under consideration, namely an instance where there was a failure to afford procedural fairness. However, as I have noted, his Honour joined in earlier decisions in which the principle was expressed as applying in the same way to cases where an inviolable limitation on decision-making authority was exceeded in some respect. 25 Gordon J reached the same result, but by different reasoning. Her Honour found at [86] that: Where there has been a fundamental failure on the part of the decision‑maker to afford procedural fairness (as occurred in this case), nothing more is required from the applicant to make out the error. There has been no hearing of the kind which in fairness ought to have been given. Jurisdictional error is established. But, even if the error in this case was not 'fundamental' (and it was), the case illustrates the difficulties, in principle and in practice, of requiring an applicant to do the very thing that should not be done on judicial review. Courts should not impose an obligation on an applicant to adduce evidence or make submissions about what would or could have been argued, or what evidence would or could have been adduced, had they been afforded a fair hearing. That is not judicial review and that is not principled or practical. 26 Edelman J expressed considerable reservations concerning the principle of materiality but nevertheless concluded that, for present, the onus of proof of materiality should be treated as being so slight that it can be easily established at a high level of generality: at [127]. 27 The majority reasoning in Nathanson exposes a significant aspect of those cases where a failure to afford procedural fairness results in submissions or evidence (or both) not being entertained by the decision-maker. In such instances, the required conjecture as to what was reasonably possible must allow for uncertainty as to how the process may have unfolded. As a court on review must be assiduous in not usurping the decision-making role entrusted by statute to the particular repository, the Court's conjecture cannot be guided by any assessment of its own as to what the result could or should have been had the submissions or evidence been received and a lawful decision made within the scope of the decision-making authority. Within the scope of that authority, the task of undertaking the required assessment has been entrusted to the repository. Therefore, in such instances, conjecture as to whether there was a realistic possibility that the decision-making process could have resulted in a different outcome will usually recognise that possibility. In part that is a consequence of the fact that such a party will, by definition, have been denied the opportunity to put its case. The process will be incomplete. As a result, much uncertainty is introduced and conjecture as to what may have occurred will be likely to entertain the possibility that further evidence or particular submissions may have influenced the decision. 28 However, in a case like the present, Mr Holloway was able to put before the Tribunal all of the submissions and evidence upon which he relied. The case advanced for Mr Holloway makes no complaint about the fairness of the Tribunal's procedure. Nor is there a complaint about compliance with those aspects of the Direction that required regard to the primary considerations. Further, the Tribunal's reasoning pathway has been exposed by its reasons. The error is confined to one aspect of the Tribunal's task that concerned only one of the 'other' considerations in circumstances where the Direction requires the Tribunal to generally give greater weight to primary considerations than other considerations. 29 As to the required conjecture in a case where there has been a failure to consider a particular matter that the decision-maker was required to consider, in PQSM v Minister for Home Affairs [2020] FCAFC 125; (2020) 279 FCR 175, Banks-Smith and Jackson JJ explained the nature of the task in the following way (at [150]-[151]): Where a decision-maker has failed to address a mandatory consideration, the task of determining whether taking it into account could realistically have made a difference will sometimes be difficult. It will often be more difficult than performing a similar evaluation in relation to specific documents or information that have been omitted. Where it is an entire consideration that has been left out of account, there may be a wide range of factual material that has been omitted. The approach articulated in SZMTA means it will often be necessary for the court to evaluate all that material. In conducting that evaluation, the line between judicial review and merits review may be difficult to discern. Similarly, it will sometimes be difficult to evaluate the Tribunal's reasoning without substituting the court's own reasoning. The nature of the Tribunal's task when reviewing decisions under s 501CA(4), which requires a discretionary weighing of all relevant factors, compounds the difficulty confronting the court on judicial review. Nevertheless, in SZMTA the majority made it clear (at [46]) that where materiality is in issue, it is an ordinary question of fact. It follows that despite all these difficulties, it is a question the court must resolve on the basis of the evidence and inferences available, including the reasons of the Tribunal or other decision-maker under review. It must resolve the question on the basis that the onus of proof is on the applicant: SZMTA at [46]. 30 The required conjecture involves a consideration of the evidence as to how the Tribunal reached its decision and, in a case like the present, the available evidence as to the issue that it did not consider. There must also be regard to the reasoning pathway in order to evaluate whether the failure to take into account an aspect of Mr Holloway's health could have been material. In those aspects, the required conjecture is backward looking. It is informed by the reasoning process actually undertaken and the evidence actually available. In that respect it is different to a case where there has been a failure to afford procedural fairness of a kind that infects that reasoning. Then, the reasons are unlikely to provide a reliable evidentiary foundation for a conclusion concerning the possibilities as to the result if the error had not occurred. 31 For Mr Holloway, the submission as to materiality was advanced in the following way: (1) The Direction specified four primary considerations to which the Tribunal was required to have regard. (2) As to three of those primary considerations the Tribunal concluded that they weighed very heavily against revocation (paras 84, 110 and 168). (3) The remaining primary consideration concerned the best interests of minor children in Australia affected by the decision as to which the Tribunal determined that it carried 'a certain but not determinative, weight in favour of revoking the [visa cancellation]' (para 156). (4) In reaching the conclusion concerning the best interests of the children, the Tribunal had determined that there were aspects of the matters relevant to that consideration which weighed strongly in favour of revocation (paras 148 and 152) and moderately in favour of revocation (paras 142 and 145). (5) Relevant 'other' considerations identified by the Tribunal were 'the extent of impediments if removed' and links to the Australian community'. To the first of these the Tribunal allocated 'a moderate measure of weight in favour of revocation' and to the second 'a strong, but not determinative, level of weight in favour of revocation' (para 209). (6) As there was uncertainty as to what was meant by 'a certain, but not determinative weight' to be given in favour of revocation when it came to the interests of minor children, there was a realistic possibility of a different outcome if the 'other' consideration of 'extent of impediments of removed' was given greater weight in the overall assessment undertaken by the Tribunal. 32 The Court was not taken to any evidence before the Tribunal that went beyond the findings to the effect that Mr Holloway had a history of a 'wicked addiction' to substances and the Tribunal would not discount the possibility of relapse into misuse of those substances. 33 In relation to the other consideration in para 9.2(1)(a) concerning extent of impediments, the Tribunal reached the following conclusion (para 185): Having regard to my findings referable to each of the three sub-paragraph components of this Other Consideration (b), I am of the view that it - put at its highest - confers only a moderate amount of weight in favour of revocation of the delegate's decision under review. 34 The above conclusion was based on earlier views that Mr Holloway's age and present state of health did not represent significant or insurmountable impediments, that he would not face any significant or substantial language or cultural barriers on his return to Canada (para 183) and the difficulties he may face in relation to social, medical and economic support 'are not insurmountable' (para 184). 35 The Tribunal expressed its conclusion in the following way (para 211): I have outlined the weight attributable to the Other Considerations. I am of the view (and I find) that the combined weights I have allocated to each of Primary Consideration 3 and Other Considerations (b) and (d), respectively, are not sufficient to outweigh the combined very heavy weight I have allocated to Primary Considerations 1, 2 and 4, respectively. 36 Of course, as has been noted, the present case is not one in which the alleged error is a failure to afford procedural fairness. In that respect, at the risk of undue repetition, the uncertainties as to how the proceedings may have unfolded if a fair procedure had been adopted are not present. The Court has available the reasoning pathway adopted by the Tribunal. The error that has been identified is one which, if corrected, could only have resulted in the 'other' consideration of 'extent of impediments if removed' being afforded greater weight in favour of revocation. The question of materiality may otherwise be approached on the basis that the balance of the Tribunal's reasoning would have been to the same effect. 37 As has been noted, the Direction requires the Tribunal generally to give greater weight to primary considerations than other considerations. Importantly, the Tribunal did not reason on the basis that the other considerations, in the particular circumstances of the case, should be afforded the same or greater weight than the primary considerations. 38 The Tribunal allocated very heavy weight against revoking the visa cancellation to three of the primary considerations. The weight it allocated the interest of the children was found by the Tribunal to be insufficient to determine the outcome. Those views were unimpeached by the Tribunal's error concerning the meaning of para 9.2(1)(a). 39 Nevertheless, the Tribunal's reasoning does not permit the conclusion that there was no realistic possibility that the Tribunal would have reached a different conclusion by affording the consideration concerned with impediments greater weight than the primary considerations. There is no clear indication as to the weight that the Tribunal might have given to the impediments that might arise from Mr Holloway's risk of relapse into substance abuse if it had considered them to be relevant. In particular, conjecture as to the realistic possibilities could not discount the possibility that the Tribunal, applying a proper interpretation of the Direction, may have concluded that Mr Holloway's health could give rise to an impediment that had sufficient weight to change the Tribunal's decision. The point cannot be dismissed as irrelevant or lacking any real significance. The possibility that it may have influenced the decision is not so remote that it could be said to be unrealistic. Therefore, in order to reject that possibility, this Court would need to form its own view as to that matter and thereby usurp the Tribunal's role. 40 For those reasons, in all the circumstances, I am unable to conclude with relative certainty that the aspects of Mr Holloway's health that the Tribunal did not bring to account because of its error as to the meaning of the Direction would not have altered its decision. There being a realistic possibility that correction of the error may have led to a different result, the applicant has demonstrated jurisdictional error. 41 As the application for an extension of time was not opposed and as there is merit in the application, there should be an order extending time in which to bring the application. There should be an order quashing the Tribunal's decision and the matter should be remitted to be determined according to law. It was common ground that costs should follow the event and there should be an order accordingly. I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Colvin.