Consideration
85 As stated above, the Court upholds Ground 2 as particularised at A. I turn then to Particulars B-D of Ground 2.
86 Having regard to the principles generally governing judicial review as stated in Pozzolanic I accept the Minister's submissions as set out above at [79]-[81] regarding Particular B, which relates to the ability of the Applicant's siblings to care for his parents. I do not take the Tribunal to have made, at paragraph [177(b)(iii)]), a positive finding in the absence of a factual foundation. I am satisfied that a fair reading of that sub-paragraph is simply that the Tribunal was unpersuaded by those aspects of the Applicant's evidence as had asserted that it should be affirmatively satisfied that other members of his family would not provide care to his ailing parents.
87 As to Particular D, I note that the Applicant does not advance a ground of review that the Tribunal's decision should be set aside for inadequacy or an absence of reasons. However, he does submit that it would be open for the Court to conclude that the Tribunal misunderstood the nature of its duty.
88 I accept that the way in which the Tribunal approached its task is not a model of decision-making. It is open to the criticism that it simply listed the factors that weighed in favour of revocation of the cancellation decision and those that were contrary to that conclusion, and then reached a conclusion without explaining how it got to that outcome. However, the Tribunal was scrupulous and detailed in its assessment of the various factors going towards that ultimate evaluative task. In other circumstances, it might be open to infer that the Tribunal did not discharge its legal duty by weighing those factors carefully as against each other and applying an evaluative mind to their respective weight. In this instance however, the absence of reasons explaining the Tribunal's conclusion - in circumstances where the Applicant does not advance a ground contending that that itself was an error - appears to the Court to be an insufficient foundation to make good Particular D. In coming to that conclusion however the Court would not wish to endorse such a manner of decision-making. A court can conclude that where no reasons have been advanced, it is evidence of there being no good reason for a conclusion: Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; 231 FCR 437 at [45].
89 However, I am satisfied that the ground of review particularised at C is made out.
90 In its discussion of one of the primary considerations that Direction 79 had required it to take into account, the Tribunal stated as follows:
144. Paragraph 6.3 of the Direction, which sets out the principles that inform the decision (by application of paragraph 7) to refuse to grant a visa or not, contains a principle directed to the expectations of the Australian community:
The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere
145. Sub-paragraph 6.3(6) of the Direction provides:
Australia has a low tolerance of any criminal or other serious conduct by visa Applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
91 The Tribunal followed that statement of the law - which I take (and Ms Lucas does not submit otherwise) to reflect its understanding of its duty to have regard to the Government's views with respect to whether or not a visa should be granted or revoked - with its discussion of Charlesworth J's reasoning in FYBR. That again directed attention to the provisions of sub-paragraph 6.3(6) of Direction 79.
92 Ms Lucas accepts that in doing so, the Tribunal erred. It is therefore convenient to explain the nature of that acknowledged error by setting out how Direction 79 ought to have applied in those regards.
93 Paragraph 6 of Direction 79 is as follows:
6. Preamble
6.1 Objectives
(1) The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.
(2) Under subsection 501(1) of the Act, a non-citizen may be refused a visa if the non-citizen does not satisfy the decision-maker that they pass the character test. A non-citizen may have their visa cancelled under subsection 501(2) if the decision-maker reasonably suspects that the non-citizen does not pass the character test, and the non-citizen does not satisfy the decision-maker that they pass the character test. Where the discretion to refuse to grant or to cancel a visa is enlivened, the decision-maker must consider whether to exercise the discretion to refuse or cancel the visa given the specific circumstances of the case.
(3) Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had his or her visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the discretion to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case.
(4) The purpose of this Direction is to guide decision-makers performing functions or exercising powers under section 501 of the Act, to refuse to grant a visa or to cancel a visa of a non-citizen who does not satisfy the decision-maker that the non-citizen passes the character test, or to revoke a mandatory cancellation under section 501CA of the Act. Under section 499(2A) of the Act, such decision-makers must comply with a direction made under section 499.
6.2 General Guidance
(1) The government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
(2) In order to effectively protect the Australian community from harm, and to maintain integrity and public confidence in the character assessment process, decisions about whether a non-citizen's visa should be refused or cancelled under section 501 should be made in a timely manner once a decision-maker is satisfied that a non-citizen does not pass the character test. Timely decisions are also beneficial to the client in providing certainty about their future.
(3) The principles provide a framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen's visa under section 501, or whether to revoke a mandatory cancellation under section 501CA. The relevant factors that must be considered in making a decision under section 501 of the Act are identified in Part A and Part B, while factors that must be considered in making a revocation decision are identified in Part C of this direction.
6.3 Principles
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3) A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4) In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5) Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen's visa should be cancelled, or their visa application refused.
94 Paragraph 7 then provides:
7. How to exercise the discretion
(1) Informed by the principles in paragraph 6.3 above, a decision-maker:
a) must take into account the considerations in Part A or Part B, where relevant, in order to determine whether a non-citizen will forfeit the privilege of being granted, or of continuing to hold, a visa; or
b) must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen's visa will be revoked.
95 It is not contentious that Part C applied in the instance of the Applicant.
96 One of the primary considerations that Part C obliged the Tribunal to take into account was as provided for by paragraph 13.3: Expectations of the Australian Community. That paragraph provides (perhaps circularly and duplicatively given the terms of paragraph 7) that decision makers "should have due regard to the Government's views" with respect to those expectations.
97 It was in applying the provisions of paragraph 13.3 that the Tribunal referred to, as applicable to its task, the provisions of sub-paragraph 6.3(6). However, as Ms Lucas concedes, that was not the material or relevant provision of Direction 79. That is because the Applicant was not a person who was a visa applicant or a person holding a short stay visa. Rather, he was a person who held a visa permitting him to remain in Australia indefinitely and who had lived in Australia for most of his life. For such persons the relevant and material provisions of Direction 79 were sub-paragraphs 6.3(5) and 6.3(7).
98 In oral argument I ventured the observation that I was troubled by the proposition that where the law requires a decision maker to comply with Direction 79 some parts of that Direction need not be complied with, as might suggest that I was sceptical of the correctness of the decision in Mataia. In that decision, Farrell J concluded that the provisions of paragraph 6 of the Direction were not mandatory relevant considerations. However, I need not express any view in that regard. It is sufficient that I am satisfied that I am entitled to accept Mr Buchhorn's submission that that case can relevantly be distinguished. Unlike the circumstances as applied in that case, this is not an instance of a failure by the Tribunal to refer to the relevant provision sub-paragraph 6. It is a case in which the Tribunal expressly referred to an inapplicable and less beneficial provision of sub-paragraph 6 to that which in fact stated the relevant elements of government policy as it had been directed it should apply and concluded its assessment, adversely to the Applicant, on that incorrect basis.
99 In my opinion, for the Tribunal to have applied an incorrect legal test to a critical aspect of its task requires the conclusion that it fell into jurisdictional error.
100 Had the test been properly stated, the Tribunal would have had a different task with respect to forming its opinion regarding the application of a primary consideration as required by sub-paragraph 13.3. In that circumstance, it cannot be plausibly asserted that the error was not material.
101 I accept Ms Lucas's submission that later in the Tribunal's reasons it did refer to the actual circumstances of the Applicant's period of residency in Australia. However, that was in respect of the other considerations to which the Tribunal had to give regard: not in respect of the primary consideration that is the subject of this ground of review.
102 In respect of its consideration of the expectations of the Australian community as paragraph 13.3 of Direction 79 made a primary consideration, it is purely speculative as to how the Tribunal might have decided the question had it applied the law to the Applicant as a holder of a visa permitting him to remain in Australia indefinitely rather than as a visa applicant or a holder of only a short term visa. In circumstances in which the Tribunal recorded findings that one of the three primary considerations it had been required by Direction 79 to have regard to weighed significantly in the Applicant's favour and had concluded that two of the other considerations it took into account as material were also in his favour, there can be no basis for a submission that had its findings in respect of the expectations of the Australian community (a second of the three primary considerations) been different, or even differently nuanced, the ultimate balancing exercise could not have been otherwise than that which the Tribunal ultimately recorded. An evaluative matter of that kind, where there is no self-evident outcome, is properly to be remitted for the consideration of the Tribunal. It is no part of this Court's duty to be a substitute merits review tribunal.
103 I would for those reasons uphold Ground 2 in respect of Particulars A and C.
104 This matter must be remitted to the Tribunal for reconsideration according to law.
105 The review being upheld, counsel for each party accepted that they could not resist an order for costs if the application was decided adversely to the party they were representing. The Applicant is therefore entitled to his costs as agreed or, in default of agreement, as taxed. I will make orders accordingly.
I certify that the preceding one hundred and five (105) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Kerr.