Ground 1
18 As became clear in the course of oral submissions, the essence of ground 1 is a contention that the Tribunal's reasons reveal that the Senior Member who constituted the Tribunal for the purposes of the review adopted a formulaic approach, straightjacketing himself by the parameters fixed by the Minister in Direction 90 (Direction), issued by the Minister under s 499 of the Act, to the exclusion of considering key elements or "integers" of the case presented by Mrs Kumar as to why the visa sought should be granted to her son. It was submitted that the Tribunal had thereby failed to discharge its statutory function of review.
19 In support of this proposition, particular reliance was placed on Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088. Dranichnikov exemplifies how an administrative decision maker, required to consider and determine a claim or representation on the merits, may both deny the author of that claim or representation procedural fairness and fail to discharge a statutory function of determining a claim or considering a representation if that administrative decision maker fails to consider an integer of that claim or representation. Ground 1 is predicated on there being a jurisdictional error of the latter kind but, as Mr McGlade of counsel accepted in light of Dranichnikov, such a failure might further or alternatively be characterised as a denial of procedural fairness to Mrs Kumar.
20 Before turning to how this submission was developed by reference to the circumstances of this case, it is helpful to set out some features of the merits review function which the Act required the Tribunal to undertake in respect of the Minister's delegate's decision.
21 The model found in the Act for that review function has its origins in a model adopted by parliament almost a century ago as an alternative means (alternative to a taxation appeal in a court exercising original, federal jurisdiction) by which a person might challenge before a Board of Review an adverse decision in respect of that person's objection to an income tax assessment. In upholding the constitutional propriety of the model in Shell Co of Australia Ltd v Federal Commissioner of Taxation (1930) 44 CLR 530 (Shell Co), at 544 - 545, the Judicial Committee observed of the Board that it was in the nature of administrative machinery and that the Board was not exercising judicial power but rather, merely in the same position as, in that instance, the Commissioner himself.
22 It was this model which was taken up in s 43 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) and, subject to qualifications which are not presently material, in s 349 of the Act in relation to the Tribunal's statutory function. In Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 (Drake) and with reference to Shell Co, Bowen CJ and Deane J observed, at 419, of the effect of s 43 of the AAT Act:
The question for the determination of the Tribunal is not whether the decision which the decision maker made was the correct or preferable one on the material before him. The question for determination of the Tribunal is whether that decision was the correct or preferable one on the material before the Tribunal.
[Emphasis added]
23 In turn, these observations in Drake with respect to the nature of the Tribunal's function have been later approved by the High Court, notably in Shi v Migration Agents Registration Authority (2008) 235 CLR 286.
24 Also in Shi, Kirby J referred with approval to a statement made by Davies J in Jebb v Repatriation Commission (1988) 80 ALR 329 (Jebb), at 333 - 334, about the Tribunal being part of an administrative decision-making continuum. In turn, in Jebb, Davies J took up an observation made by the Tribunal in Re Easton and Repatriation Commission (1987) 6 AAR 558, at 561, "The ambit of a review by the [Tribunal] is necessarily influenced by the ambit of the steps and proceedings that have taken place prior to its review, for the function of the [Tribunal] is to review a decision". This understanding of the Tribunal being part of an administrative decision-making continuum was endorsed by Bell, Gageler, Gordon and Edelman JJ in Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250, at [53].
25 The Tribunal's place in an administrative decision-making continuum necessarily means that the issues which emerge for its consideration will be shaped not just by the criteria specified in or with respect to the statutory power it is exercising afresh but also by the way in which those issues have been developed at anterior stages of the continuum. Commencing with the original application for the exercise of the relevant statutory power, an applicant will have put forward particular reasons and material why that power ought to be exercised favourably. Some of these may have been accepted at primary decision-making level or perhaps on internal review within a department or agency, if there is provision for that, some not. The Tribunal's own interlocutory practice and procedure is deliberately designed, via provision for an exchange of statements of facts, issues and contentions between applicant and respondent, to highlight the controversial issues of fact and law in the review. In turn, the identification of the pertinent issues may be refined by oral submissions made to the Tribunal in light of the totality of evidence following a hearing. In these circumstances, it is only natural to expect that the reasons of the Tribunal for its final decision will be coloured and shaped by the way in which issues have evolved beforehand.
26 The Tribunal's decision-making must also take account of any guidelines or directions that necessarily attend the exercise of the statutory power that falls to be exercised afresh by it. Section 499 of the Act offers an example of a provision which, by s 499(1), both empowers the making of such directions (Direction 90 in this instance) and, by s 499(2A), requires compliance with them when exercising a power to which they are applicable. However, s 499(2) of the Act confirms a position which would in any event prevail, which is that the power found in s 499(1) to make directions does not empower the Minister "to give directions that would be inconsistent with [the] Act or the regulations". In the same way, as recently highlighted by the High Court in Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 10, that the executive power of the Commonwealth does not extend to authorising a Minister to instruct officers to make a decision which, by legislative stipulation, could be made only by the Minister personally, so too the power conferred on the Minister as an officer of the executive to make directions does not extend to authorising the making of directions which are inconsistent with the statutory function of the Tribunal to review afresh a particular decision made under the Act. Put another way, while ministerial directions may serve a purpose of consistency of decision-making, the Minister cannot, by such a direction, dictate what must be the outcome before the Tribunal of undertaking its review on the merits of a particular decision.
27 Compliance with a ministerial direction is no substitute for the Tribunal's understanding and evaluating the case made by a particular applicant for review on the material before the Tribunal for the purposes of that review. This was just the point made in the joint judgment of Kiefel CJ, Keane, Gordon and Steward JJ in Plaintiff M1/2021 v Minister for Home Affairs (2022) 96 ALJR 497 (Plaintiff M1/2021), at [24] - [26]:
[24] Consistently with well-established authority in different statutory contexts, there can be no doubt that a decision-maker must read, identify, understand and evaluate the representations. Adopting and adapting what Kiefel J (as her Honour then was) said in Tickner v Chapman, the decision-maker must have regard to what is said in the representations, bring their mind to bear upon the facts stated in them and the arguments or opinions put forward, and appreciate who is making them. From that point, the decision-maker might sift them, attributing whatever weight or persuasive quality is thought appropriate. The weight to be afforded to the representations is a matter for the decision-maker. And the decision-maker is not obliged "to make actual findings of fact as an adjudication of all material claims" made by a former visa holder.
[25] It is also well-established that the requisite level of engagement by the decision-maker with the representations must occur within the bounds of rationality and reasonableness. What is necessary to comply with the statutory requirement for a valid exercise of power will necessarily depend on the nature, form and content of the representations. The requisite level of engagement - the degree of effort needed by the decision-maker - will vary, among other things, according to the length, clarity and degree of relevance of the representations. The decision-maker is not required to consider claims that are not clearly articulated or which do not clearly arise on the materials before them.
[26] Labels like "active intellectual process" and "proper, genuine and realistic consideration" must be understood in their proper context. These formulas have the danger of creating "a kind of general warrant, invoking language of indefinite and subjective application, in which the procedural and substantive merits of any [decision-maker's] decision can be scrutinised".
[footnote references omitted]
These statements were made with particular reference to the right found in s 501CA(4) of the Act to make a representation to the Minister following the cancellation of a visa pursuant to s 501(3A) of the Act. However, as is evident from [24], that context is but a particular exemplification of a general feature of administrative decision-making.
28 The submission made for Mrs Kumar was that, notwithstanding the way in which her case had been identified and developed before the Tribunal, key aspects had not just been ignored but, based on a misunderstanding of the effect of the Direction, treated as irrelevant. Those three key aspects were identified as:
(1) the strength, nature and duration of the Mr Kumar's ties to Australia;
(2) the detriments/adverse impacts Mr Kumar would sustain by his visa being refused; and
(3) the detriments/adverse impacts Mr Kumar's father would sustain by the Applicant's visa being refused.
29 Evaluating the merits of that submission, in light of the features of administrative decision-making discussed above, first requires some detailing of the administrative decision-making continuum in this particular case. It will then be necessary to analyse how that culminated in the reasons offered by the Tribunal for the decision under review.
30 In his visa application, Mr Kumar disclosed that he was "applying for the Resident Return Visa from Fiji as the Travel part of my Permanent Resident Visa expired whilst here (arrived in Fiji November, 2018)". He also disclosed that he had been convicted of various offences in Australia. In a related, supporting statutory declaration, Mr Kumar detailed his offending history and his immediate family, including his father. He stated (at [16] to [18]):
16. The relationship between my family and I has improved significantly.
17. I completed a Diploma of Legal Services course in 2018 at TAFE Queensland.
18. I applied to study Bachelors of Laws course at Griffith University, and was offered a position in the program, and wish to return to Australia to undertake the course.
31 Prior to the decision of the delegate, Mr Kumar's visa application came to be supported by a statutory declaration made by his father on 25 February 2020. His father then held an Australian permeant resident visa but then held the position of Chief Justice on an acting basis. His father corroborated Mr Kumar's intention to pursue legal studies in Australia on his return, and attested to his willingness to support him financially during those studies, should he require that ([34] of statutory declaration). Mrs Kumar also supplied a lengthy supporting statutory declaration.
32 In the statement of facts, issues and contentions which was filed on Mrs Kumar's behalf in the Tribunal reference was made (at [41]) under the heading "Links to the Australian Community" to the impact of the refusal of Mr Kumar's visa application on "three of the Visa Applicant's immediate family members: his mother, his brother, and his father" (emphasis added). This impact was amplified in succeeding paragraphs of that statement.
33 As to Mr Kumar's father, reference was made to the acting appointment which he held in Fiji and to his status as an Australian permanent resident visa holder, living in Fiji. It was stated ([49] to [51]):
49 … It is his desire that his son completes his law degree and pursues a career in law, as he did. This is what the Visa Applicant wants as well.
50. Kamal [the father] knows firsthand the benefits that studying law and a legal career can bring. The Visa Applicant will become more focused, he will learn about justice and ethics, he will gain a greater understanding of how his behaviour can impact his career, his life, and other people, also he would be sufficiently regulated by the Law Society throughout his career.
51. As Kamal [the father] is an Australian Permanent Resident, it is upsetting to know that, should he return to Australia, he would be leaving his son in Fiji without family and support.
34 One of the documents appended to this statement of facts, issues and contentions was a further statutory declaration made by the father and dated 17 March 2021. This provided an evidentiary foundation, in supplementation of that already accompanying the original visa application, for the statements, quoted above, made in Mrs Kumar's statement of facts, issues and contentions.
35 In keeping with these factual assertions in the statement of facts, issues and contentions, one of the issues in dispute, expressly identified (at [10(c)]) in Mrs Kumar's statement of facts, issues and contentions was, "The links to the Australian community, specifically the impact on family members." The Minister's corresponding statement of facts issues and contentions did acknowledge (at [90]) that Mr Kumar had "ties with family in Australia, including Australia citizens, and that his mother, brother, two aunts, one uncle and one cousin reside in Australia", but did not mention his father in this context. Each of the statements of facts issues and contentions was obviously informed by the Direction. However, the issues raised by Mrs Kumar extended beyond that.
36 Mr Kumar's father gave oral evidence at the hearing subsequently conducted by the Tribunal. In the course of that evidence, he confirmed what he had stated in his earlier statutory declarations in relation to Mr Kumar's aspirations to study law in Australia and the preliminary studies to that end he had undertaken. He stated that he had supported Mr Kumar financially to undertake his legal studies diploma. He also stated that he had paid for Mr Kumar's air fare to return to Australia early in 2019 for the purpose of pursuing university legal studies after a Christmas 2018 visit to Fiji to see him. Also in the course of his oral evidence, the father spoke of his then acting appointment in Fiji, how he didn't have "any absolute commitments here in Fiji", of his intention to return to Australia on cessation of duty in Fiji, because of the presence of his family in Australia, how, "at the moment", Mr Kumar was with him in Fiji and how, if his review application were not successful, Mr Kumar might have to stay in Fiji by himself. The cross-examination of Mr Kumar's father was directed to the nature and extent of his knowledge of Mr Kumar's offending conduct in Australia but not at all to the accuracy of the statements had he made concerning his and his son's intentions and the absence for each of them of enduring ties with Fiji.
37 A review of the oral submissions made to the Tribunal after the conclusion of oral evidence discloses that none of the issues raised in Mrs Kumar's statement of facts, issues and contentions was abandoned. The submissions thus included reference to Mr Kumar's desire to pursue university legal studies in Australia, to his ties to Australia, to his father's support for him and the nature of the father's position in Fiji. It was put that Mr Kumar was like a "fish out of water" in Fiji.
38 Turning to the Tribunal's reasons, it is clear to the point of demonstration that they have been structured wholly by reference to the Direction. Yet the Direction was not, and could not be, exhaustive of considerations which might inform a decision not to refuse to grant a visa. In refusing to grant Mr Kumar the visa which he sought, the delegate exercised the discretionary power conferred by s 501(1) of the Act. It was this discretionary power which it fell to the Tribunal to exercise afresh.
39 Occasion for the exercise of that discretionary power is enlivened by a failure on the part of visa holder to satisfy the Minister or, as the case may be (and was) a delegate that he or she passes the "character test" for which s 501 provides. The length of a term of imprisonment to which Mr Kumar had been sentenced as part of his offending history was such that he could not possibly engender satisfaction that he passed the character test. He did not contend, and never had contended, that he passed the character test. Instead, from the very outset of the administrative decision-making continuum, his case was always that there were particular features of his personal circumstances which should provide occasion for an enlivened discretionary power to refuse to grant a visa not to be exercised. These features were the three aspects identified above.
40 Subsection 501(1) of the Act does not itself specify any criteria which must or must not be taken into account when deciding as a matter of discretion whether or not to refuse to grant a visa, once that discretion is enlivened. However, the occasion why a person cannot engender satisfaction that he or she passes the "character test" is, obviously and necessarily, a relevant consideration. But it is not exhaustive of the considerations which are either relevant in the sense described by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, at 39 - 40, or which nonetheless may, without jurisdictional error, permissibly be taken into account in deciding whether or not to refuse to grant a visa.
41 The power conferred by s 501(1) of the Act falls to be exercised subject to the Act and subject to the self-evident, Australian community protective purpose of the power. However, by the very circumstance that a discretion has been conferred, it necessarily follows that parliament has accepted that this purpose is not necessarily served in a given case by a refusal to grant a visa. To approach the exercise of the discretionary power on the basis of an a priori assumption that a failure to be satisfied a person passes the character test means that the granting of a visa must be refused would be to misconceive the nature of the power. The discretionary power conferred by s 501(1) of the Act stands in marked contrast to the obligation, found in s 501(3A) of the Act, to cancel a visa in the event that one or the other of the subjects of ministerial (or delegate) satisfaction exists.
42 That the power falls to be exercised subject to the Act necessarily means that considerations specified by the Minister in the Direction made pursuant to s 499 are relevant considerations, subject only to the qualification as to the limits of ministerial executive power already noted. In Calvey v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 104, at [45], and with reference to the power, found in s 501CA(4) of the Act, to revoke the cancellation of a visa, in relation to which considerations specified in a direction made under s 499 of the Act are also relevant, the Full Court observed of such considerations that they are "not an exhaustive universe". In the face of an ability to revoke cancellation as open-ended as if satisfied "that there is another reason why the original decision should be revoked", that, with respect, must follow. Mrs Kumar argued, by analogy, that the same conclusion followed in relation to the power conferred by s 501(1) of the Act. We agree. The Minister cannot, by a direction made under s 499, fetter the exercise of the power conferred by s 501(1) of the Act.
43 The Minister has not purported to do this by the Direction. Instead, at paragraph 5.1(2) of the preamble to the Direction, the Minister has stated, "Where the discretion to refuse to grant or to cancel a visa is enlivened, the decision-maker must consider the specific circumstances of the case in deciding whether to exercise that discretion." That statement, with respect, is completely congruent with the conclusions which we have reached in the preceding paragraphs concerning the nature of the power conferred by s 501(1) of the Act.
44 It follows from these conclusions that each of the three, identified aspects of Mr Kumar's visa application might permissibly have been considered by the Minister's delegate and, sitting in place of the delegate, the Tribunal.
45 The question becomes, is the present a case where, as in a case relied upon by way of example by Mrs Kumar, Fehoko v Minister for Immigration, Citizenship, Migrant Services and Multi-cultural Affairs [2022] FCA 147, the Tribunal has blinkered itself by reference to the considerations specified in the Direction, to the exclusion of reviewing afresh the claims made by and on behalf of Mr Kumar as to why the visa sought should be granted?
46 As we were appropriately reminded by Mr Byrnes of Counsel for the Minister, another statement made in the joint judgment in Plaintiff M1/2021, at [38], was that, "The Court is not 'astute to discern error' in the reasons of an administrative decision-maker." As made clear by the footnoted references for that statement to Plaintiff M64 of 2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173, at 185, and to Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, at 271 - 272, 278 and 282, this was no new subject. The business of public administration either at primary decision-making level or upon merits review would become quite impossible were the position otherwise.
47 In this case, the primary purpose of the Tribunal's reasons was to inform the parties to the review why the Tribunal had decided to confirm the delegate's decision. Another, via Mrs Kumar, was to offer that explanation to her son, Mr Kumar, the applicant for the visa. However, the imposition of this informative purpose also served another public interest purpose, which was to promote better administrative decision-making within the executive branch. At common law, there is no requirement for an administrator to furnish reasons for a decision: Public Service Board (NSW) v Osmond (1986) 159 CLR 656. In the imposed discipline of having to furnish reasons lies the hope and expectation that an administrative decision-maker will confront and apply the applicable law to the facts of a given case. Exposing a reasoning process avoids the controversy of whether, in their absence, an inference as to jurisdictional error is nonetheless open: qv Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997.
48 Mr Byrnes made another sound point in his submissions for the Minister. That is, even if the reasons evidenced that the Tribunal had approached the making of a decision on the review using the criteria as something of a "template", if, nonetheless, the reasons showed that the particular aspects of a given visa application had been considered, no jurisdictional error would be demonstrated. This must follow. At the heart of Dranichnikov was a question of fact as to what were the "integers" of the claim? If, on the face of the Tribunal's reasons, it was plain that those integers had been considered, its review function would have been discharged and its procedural fairness obligation would have been observed.
49 Mr Byrnes also submitted that this was apparent from the reasons given by the Tribunal in this case. We do not agree. Instead, as Mr McGlade demonstrated in submissions, the reverse is true. The most stark example of this is offered by [162] of the Tribunal's reasons:
162 The Applicant's father is a permanent resident of Australia. However, his father is not relevant to paragraph 9.4.1(1) of the Direction, because he is not "in Australia" at the time of this decision. He is in Fiji.
Mr Kumar's father may not have fallen within the terms of the Direction. But he did most emphatically feature in the reasons put forward by Mr Kumar in his visa application and by Mrs Kumar in her review application as to why there should not be a refusal to grant a visa. The claims made in relation to the father were "clearly articulated" and "clearly arose" from the very outset to the point of Tribunal hearing in the course of the administrative-decision-making continuum. It was permissible to take them into account for the purpose of exercising the discretion conferred by s 501(1) of the Act. To approach them as if they were not, on the basis of the Direction, was to misconceive the nature and extent of the discretion which it fell to the Tribunal to exercise afresh.
50 Moreover, Mr Kumar's reference to his father's circumstances and support interplayed with the immediate occasion for his seeking a return visa, which was to study in Australia, for which he had his father's support. A feature of the Tribunal's reasons is that the Tribunal nowhere directly records why Mr Kumar had sought, and was still seeking, the visa. That the Tribunal did have an understanding of this reason does appear obliquely. In the course of considering a submission on behalf of the Minister as to why there was a risk of re-offending, having regard to observations about him in a report tendered to the Queensland District Court in 2015 during a sentencing hearing, the Tribunal recorded (at [87]) in respect of that submission, "Examples of such difficulties are cited to include finding employment in Australia, being accepted into a degree-certified law course at a university (or similar institution) as well as re -establishing an interpersonal relationship with a partner." What the Tribunal did not do was to address whether this tertiary legal studies ambition, in conjunction with other factors, necessarily including those considerations specified in the Direction which were raised on the material before it, weighed in favour (or against) the granting of the visa. Once again, such was the breadth of the discretion conferred by s 501(1), it was permissible for the Tribunal to consider this "integer" of the application before it.
51 The Tribunal's reasons reveal that it did address the subject of Mr Kumar's links to the Australian community but did so in a way which it regarded as circumscribed by the Direction.
52 Demonstrating how this occurred requires that we set out [157] to [160] of the Tribunal's reasons under the heading, "Links to the Australian community" and then the related part of the Direction to which the Tribunal refers:
157 Paragraph 9.4 of the Direction requires that decision-makers must have regard to an Applicant's links to the Australian community.
158 There are two factors which I must assess in determining the level of weight to allocate to Other Consideration (d). They comprise: (1) the strength, nature and duration of ties to Australia; and (2) the impact on Australian business interests. I will consider each in turn.
159 Strength, nature and duration of ties An initial observation is that the second paragraph of this paragraph 9.4.1 is not relevant to the instant application. It is predicated on an applicant seeking relief from a cancellation of their visa or non-revocation of the mandatory cancellation their visa. Here, the Applicant seeks relief from a decision to refuse a visa. Paragraph 9.4.1(2) is not relevant to determination of the instant application.
160 I will therefore limit my consideration to the componentry of paragraph 9.4.1(1) of the Direction.
53 The related paragraphs of the Direction state:
9.4.1. The strength, nature and duration of ties to Australia
1 Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
2 Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non citizen has to the Australian community. In doing so, decision-makers must have regard to:
a) how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
1. less weight should be given where the non-citizen began offending soon after arriving in Australia; and
11. more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
b) the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
54 Read in conjunction with the Direction, it can be seen how, by blinkering itself by the Direction, the Tribunal came, as [162] of its reasons, set out above demonstrates, to disregard Mr Kumar's father because, although the holder of a permanent resident visa, he was not in terms of [9.4.1], item 1 of the Direction, "in Australia". Further, as the last sentence of [159] of the Tribunal's reasons reveals, because the Tribunal was not dealing with a cancellation or revocation of cancellation of visa decision, as opposed to a refusal to grant decision, it treated the subjects set out in that paragraph as not relevant. Yet those very subjects also formed an "integer" of the review application.
55 It is possible nonetheless, when one reads the Tribunal's reasons as a whole, to find passages in the reasons which canvas some aspects of Mr Kumar's ties to Australia. The Tribunal has rehearsed aspects of this subject in its consideration, with reference to [5.2(4)] of the Direction (set out below in our consideration of Ground 2) of where Mr Kumar has spent "most" of his life. The Direction does not specify mutually exclusive subjects for consideration. The difficulty in accepting that the aspect of Mr Kumar's ties to Australia was addressed by the Tribunal is likewise found in [159] of the Tribunal's reasons. In respect of this aspect of the application for a visa also, the Tribunal has declined to regard them as relevant, because of a misapprehension as to their relevance, grounded in the wording of the direction and the fact it was not reviewing a cancellation decision.
56 Moreover, as was also put for Mrs Kumar, based on the Direction ([5.2(4)] in particular) and as [149] to [151] of the Tribunal's reasons (set out below) reveal, the Tribunal looked to the length of time which Mr Kumar had spent in Australia, rather than, as his claim as developed put forward, the quality of his ties to Australia.
57 What follows from the foregoing is that the Tribunal failed to exercise the assigned statutory function of reviewing the decision not to grant the visa for which Mr Kumar applied, because it failed to address aspects or integers of that visa application. Further or alternatively, in so doing, the Tribunal failed to afford Mrs Kumar procedural fairness.
58 The failures concerned were jurisdictional. As we have stated, it was permissible to take these aspects of the claim for a visa into account, and to do so favourably. Whatever one might make of the consideration in [5.2(4)] of the Direction, Australia had "tolerated" the continued presence of Mr Kumar for years after occasion had arisen for the engendering of satisfaction that might have resulted in the cancellation of his then visa. In that time he had successfully obtained a precursor to the bachelor's degree level legal studies he stated he wished to pursue on return from an anticipated short term absence in Fiji. The nature and extent of his ties to Australia were hardly trifling. His father had but an acting appointment in Fiji, a right of permanent residence in Australia and a disposition to avail himself of that right when his appointment in Fiji came to an end. He was supportive of Mr Kumar's ambition to pursue rehabilitation by educational endeavour. Mr Kumar faced the prospect of being effectively marooned in Fiji without any familial presence. Realistically, the taking of these aspects of the claim into account could have resulted in a different decision on the review application: MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506 (MZAPC), at [85]. The Minister has not established that the failures were immaterial: MZAPC, at [86].