THE APPEAL
24 On 29 December 2016, the appellant appealed to this Court. The appellant relied on one ground and repeated the particulars of the grounds before the Federal Circuit Court, as follows:
1. The Court Below erred in finding that the respondent considered the following matters put forward by the appellant in support of his application for waiver of the condition in Migration Regulation [sic], Schedule 8, cl 8503:
(i) The appellant's spouse's…need for emotional support in view of an abusive past marriage.
(ii) The expected effect of the appellant's removal on [the wife's] mental and physical health,
(iii) [The wife's] need to have the appellant with her to care for their as yet unborn child in circumstances where [the wife] was seven months pregnant at the time of the application.
25 In my view, the fact that the delegate gave reasons in this case, although he was not obliged to do so, permits scrutiny of those reasons in order to determine which matters the delegate considered.
26 In the case of Soliman v University of Technology, Sydney (2012) 207 FCR 277 (Soliman), the Full Court observed at [55]:
Even in the absence of a statutory requirement to provide findings or reasons, a failure to address a submission centrally relevant to the decision being made may similarly found a basis for concluding that that submission has not been taken into account. Such a failure may be exposed in reasons voluntarily provided. And a failure to take into account such a submission may constitute jurisdictional error…
27 It is the case that the materials which were placed before the decision-maker were not voluminous. However, that circumstance is, in my view, a neutral consideration. It was incumbent on the delegate to understand the claim which was being made in support of the application for the waiver and to address that claim, regardless of how voluminous or not the materials were. As the Full Court has observed in Soliman, it is to be expected that, having decided to give reasons, the decision-maker would reflect the matters that he or she has considered and grappled with, in coming to the decision.
28 There is an important difference between a decision-maker being aware of a document and its contents, and understanding and addressing the claim which is made in the document. In Singh v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 152 at [58], Sackville J drew attention to the distinction when he observed:
A decision-maker may be aware of information without paying any attention to it or giving it any consideration.
29 In this case, it was at the forefront of the appellant's claim that his wife had been subjected to domestic violence during her first marriage which had left her with "severe mental health issues" and that she had for some time been receiving counselling, that by reason of this pre-existing condition and her history of anxiety and depression, trauma and suicide ideation, his wife's mental health condition could suffer if he, being the stabilising influence in her life, was not there to support her through the difficult time of giving birth and managing a new born baby. This was supported by the expert opinion of Ms Brown, the psychologist.
30 In other words, the appellant was not making a case, that if he was deported, his wife would suffer emotional distress on the basis only of a separation. The case was a different case, namely, that his wife was a person who had suffered severe physical and mental trauma and had mental health issues and that the separation, in those circumstances, could exacerbate her mental health issues.
31 Although the reasons given by the delegate refer to the psychologist's report, the delegate does not address this issue in his reasons. In fact, it is apparent that the delegate did not appreciate the nature of the case being made because, in the opening sentence of his reasons, he treats the separation issue as being no more than a fear of experiencing separation anxiety normally attendant upon being separated from "a loved one".
32 In my view, the primary judge erred in the manner pleaded in the ground of appeal.
33 Therefore, the appeal is to be upheld, and orders in the nature of a writ of certiorari and a writ of mandamus claimed by the appellant, will be made.
34 The respondent is to pay the appellant's costs of the appeal and the application to the Federal Circuit Court.
I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis.