What happened
The appellant, identified only as KXXH, arrived in Australia from New Zealand in 1988 at the age of two and never acquired Australian citizenship. By November 2019 he had accumulated a substantial criminal history that included domestic violence offences, other assaults, and the supply of methylamphetamine. While serving a 12-month sentence of imprisonment for assault he became subject to mandatory visa cancellation under s 501(3A) of the Migration Act 1958 (Cth) because he did not pass the character test.
In response to an invitation issued under s 501CA(3)(b), the appellant completed a revocation request form and a Personal Circumstances Form dated 3 December 2019. In those documents he referred to his two biological Australian-citizen children aged 7 and 9, his fiancée (referred to as MS) who had ten children and six grandchildren all resident in Australia, and the likely inability of MS to relocate to New Zealand because of her own health issues and family ties. The section of the form specifically headed “B. List below all other minor children in your life (including grandchildren...)” was left blank, as were the questions asking for a description of his relationship with those children and the likely impact upon them of a non-revocation decision. A later letter from the appellant to the delegate dated 3 August 2020 again emphasised his relationship with his biological children but made no mention of MS’s grandchildren.
MS provided two letters. The first, before the delegate, did not mention grandchildren. The second, dated 8 November 2020 and admitted as an exhibit before the Tribunal, described the appellant as her de facto partner, recounted the tragic death of one of her daughters leaving a grandchild an orphan who “has a good relationship with” the appellant, and stated that her grandchildren aged 9, 3 and 2 “love [the appellant] and have spent a lot of time together as a family they call [the appellant] ‘Little Pop’”. The letter also referred to ongoing video calls. The overall tenor of these references, as the primary judge later observed at [29], was to illustrate the appellant’s good character rather than to forecast concrete adverse consequences for the grandchildren if the appellant were removed.
Both parties filed Statements of Facts, Issues and Contentions (SOFICs). The Minister’s SOFIC referred only to the two biological children under the best-interests heading. The appellant’s SOFIC of 16 November 2020 likewise focused on his “2 beautiful children” and made no mention of the grandchildren. The appellant and MS both gave oral evidence before the self-represented appellant at the Tribunal hearing on 1 December 2020. The transcript of that oral evidence was not before the courts on review, but the Tribunal’s reasons recorded that MS had said the appellant “gets along well with her eldest daughter and her husband and their children and they have babysat her granddaughters. He also has a very good relationship with her grandson”.
On 15 December 2020 the Tribunal affirmed the delegate’s refusal to revoke the cancellation. After setting out the evidence under a heading “Children”, the Tribunal noted at [23] that the appellant had referred to MS having six grandchildren but had provided no information about their ages or his involvement in their lives. Later, under “Evidence of Applicant’s fiancée”, the Tribunal summarised the Letter and MS’s oral evidence, including the positive relationship with the grandson and the babysitting of granddaughters. When it came to weigh the primary consideration of the best interests of minor children affected by the decision, the Tribunal set out para 13.2(4) of Direction No 79 in full and applied each factor to the two biological children. It then stated at [134]:
“The Tribunal has considered the interests of the Applicant’s five nieces and nephews, and his fiancée’s children and grandchildren who reside in Australia. There is very limited evidence before the Tribunal of the ages of these children, the nature of the Applicant’s relationship with them, and how they may be adversely affected by his removal. Accordingly, the Tribunal has given the impact on these children only limited weight.”
At [135] the Tribunal found that the primary consideration weighed in favour of revocation because it was in the best interests of the applicant’s children and his nieces and nephews. Identical wording was repeated at [164] and again in the ultimate conclusion at [167] that there was not “another reason” to revoke the cancellation.
The appellant sought judicial review. Before the primary judge he contended that the Tribunal had failed to consider the material in MS’s Letter and had failed to make the determination required by para 13.2(1) of Direction 79. The primary judge rejected both limbs. His Honour characterised the references in the Letter as incidental, noted that the Tribunal had referred to the Letter and to the oral evidence, and held that the rolled-up finding at [134] was consistent with the material taken as a whole. The omission of the grandchildren from the list in [135] was said to reflect a permissible attribution of weight.
On appeal to the Full Court the appellant ultimately relied on a single ground that the primary judge erred in failing to find that the Tribunal had failed to give lawful consideration to the interests of the grandchildren of the appellant’s fiancée. After extensive reference to the principles recently restated by the High Court in Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17, the Full Court (Bromberg, Jackson and Feutrill JJ) concluded that, read fairly and in context, the Tribunal’s reasons demonstrated real consideration of the grandchildren’s interests. The limited weight given to them was open on the evidence, the rolled-up treatment was consistent with the sparsity of the appellant’s own case on the point, and the omission in [135] and [164] was best explained as a slip in wording rather than an absence of substantive engagement. The appeal was dismissed with costs on 1 July 2022.
Why the court decided this way
The Full Court began its analysis at [42]–[54] by distilling the principles that govern judicial review for alleged failure to consider a mandatory relevant matter. It noted that, although the appellant had not made a “substantial and clearly articulated” claim about the grandchildren, their existence and a relationship with the appellant had been disclosed in MS’s Letter and oral evidence. Combined with the obligation imposed by Direction 79, this made consideration of their best interests mandatory in the Uelese sense. The court then set out at [45] the key passage from Plaintiff M1/2021 emphasising that a decision-maker must read, identify, understand and evaluate representations, but that the weight to be given is for the decision-maker and that the requisite degree of engagement depends on the nature, form, content, length, clarity and relevance of the material.
Two principles were regarded as decisive. First, the court must assess the reality of consideration rather than its textual expression. Drawing on Maioha at [45] (quoted at [49]), the Full Court reiterated that the inquiry is qualitative: whether, as a matter of substance, the Tribunal had regard to the material. Second, the degree of consideration required is affected by the centrality of the matter. At [59] the court observed that “the interests of MS’s grandchildren were not central to the appellant’s case in the Tribunal. His own representations did not squarely raise those interests at all.” The appellant’s forms had left the specific grandchild table blank, had used the grandchildren only to buttress the claim that MS could not relocate, and had focused overwhelmingly on the two biological children. The SOFIC repeated that emphasis. Against that background, the brevity of the Tribunal’s treatment at [134]–[135] was unsurprising.
The court then examined the structure and content of the Tribunal’s reasons. It had listed the Letter as an exhibit, referred to it again under the heading “Evidence of Applicant’s fiancée”, and synthesised information from the Letter and from MS’s oral evidence when it recorded that the appellant had a very good relationship with the grandson and had babysat the granddaughters. That synthesis showed the Tribunal was “sifting, assessing and synthesising the evidence from various sources” ([56]). The statement at [134] that the Tribunal had “considered the interests” of the grandchildren and had given their impact “only limited weight” was not a mere formula; it appeared in the dispositive section of the reasons and was consistent with the limited particularity of the material about likely adverse effects on the children.
The Full Court acknowledged that [134] and [135] were “problematic” in that they appeared to give priority to the nieces and nephews (about whom even less was known) and that the final conclusion at [135] omitted the grandchildren. It considered two possible explanations: an irrational preference for the nieces and nephews, or a slip in wording. The latter was preferred because [134] expressly included the grandchildren in the limited-weight finding, the same wording was copied at [164], and the only construction that made sense when [134] and [135] were read together was that the Tribunal had decided to give the group (nieces, nephews and grandchildren) limited but positive weight in favour of revocation. Reading the reasons practically and without an eye keenly attuned to error (Wu Shan Liang), the Full Court was not satisfied that the appellant had discharged the onus of proving that real consideration had not occurred. The deficiencies were therefore characterised as deficiencies in expression rather than an absence of the reality of consideration required by law. No jurisdictional error was established and the primary judge’s dismissal of the judicial review application was correct.
Before and after state of the law
Prior to this decision the law was settled that the best interests of minor children known to the Tribunal are a mandatory relevant consideration under the predecessor to Direction 79 (Uelese v Minister for Immigration and Border Protection [2015] HCA 15 at [61]). Viane v Minister for Immigration and Border Protection [2018] FCAFC 116 had confirmed that the Tribunal must consider information that is “sufficiently important” even if not a clearly articulated claim. Carrascalao [2017] FCAFC 107 at [48] had emphasised that a finding of no active intellectual process “will not lightly be made” and must be supported by clear evidence. Omar [2019] FCAFC 188 had illustrated the opposite end of the spectrum: where detailed evidence of “awful consequences” for a child had been advanced, a complete absence of reference could support an inference of jurisdictional error. Maioha had supplied the now-canonical statement that the court must assess the reality of consideration in a qualitative way.
Plaintiff M1/2021, delivered only weeks before the Full Court hearing, restated these principles at a high level of generality and warned against using phrases such as “active intellectual process” as a “general warrant” for merits review. The present judgment is a concrete application of Plaintiff M1/2021 to a case where the material was limited, non-central and not emphasised by the appellant himself. It confirms that the Omar line of authority will not be extended to every case in which some detail is omitted from reasons. It also reinforces the Yusuf and WAEE propositions that the statutory obligation to give reasons requires only findings on material questions of fact, and that an inference of non-consideration should not be drawn too readily where the reasons are otherwise comprehensive and the issue has been identified.
After this judgment the law remains that the adequacy of consideration is intensely fact-specific. What has been clarified is the latitude to be given to a Tribunal that deals with a group of children in a rolled-up way when the evidence about impact is sparse and the appellant has not made the matter central. Decision-makers may now more confidently ascribe limited weight to peripheral child-related claims without descending to a child-by-child analysis of every factor in para 13.2(4) of the Direction, provided the reasons read as a whole demonstrate that the material was not ignored. The judgment also underscores that a drafting slip in a conclusion paragraph will not automatically vitiate an otherwise coherent set of reasons that expressly addresses the relevant evidence at an earlier point.
Key passages with plain-English translation
At [45] the Full Court quoted the High Court in Plaintiff M1/2021:
“the decision-maker must read, identify, understand and evaluate 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.”
Plain English: The Tribunal has to read the papers, work out what they are saying, think about the facts and arguments, and then decide how important they are. It does not have to accept everything or write an essay on every detail.
At [49], quoting Maioha:
“What is required is the reality of consideration by the decision-maker. On judicial review the Court must therefore assess, in a qualitative way, whether the decision-maker has as a matter of substance had regard to the representations put.”
Plain English: It is not about whether the Tribunal used the right words on paper. The judge has to look at the whole decision and decide whether, in real life, the Tribunal actually thought about the important points.
At [55] the Full Court stated its evaluative task:
“This is a case where … it is necessary to make a decision as a matter of impression, including by inferences to be drawn from the manner in which the appellant’s case unfolded before the Tribunal and the structure, tone and content of its reasons. While it is not straightforward to determine whether the reasons here fall ‘on the wrong side of the line’, on balance we consider that they did not.”
Plain English: We have to look at the whole picture—how the man ran his case and how the Tribunal wrote its decision—and decide whether it feels like they really thought about the grandchildren. We think they did.
At [59], after noting that Soliman requires courts to avoid blinkered eyes:
“In this case, the interests of MS’s grandchildren were not central to the appellant’s case in the Tribunal. His own representations did not squarely raise those interests at all.”
Plain English: The man never made the grandchildren a big part of his own argument. That is why the Tribunal did not have to write pages about them.
At [62]–[64] the court dealt with the “problematic” aspects of [134]–[135] and concluded that the better view was that the omission was a slip, that [134] showed the Tribunal had turned its mind to the grandchildren, and that the limited-weight finding was open and consistent with the evidence taken as a whole. These paragraphs illustrate the court’s refusal to infer jurisdictional error from infelicitous drafting where the substance of consideration is evident.
What fact patterns trigger this precedent
This precedent is triggered whenever an applicant for revocation under s 501CA(4) has mentioned, but not emphasised, the existence of minor children other than his or her own biological or adopted children, the supporting material (letters, forms, SOFICs) contains only limited detail about the nature of the relationship and, crucially, does not clearly articulate specific adverse impacts upon those children if the applicant is removed. The precedent applies with particular force where the Tribunal has:
- expressly referred to the relevant letter or oral evidence;
- summarised the relationship in a dedicated section of its reasons;
- stated that it has “considered” the interests of the group of children and has ascribed only “limited weight” because of “very limited evidence” of ages, relationship and effect of removal;
- dealt with the children in a rolled-up fashion together with other relatives about whom even less is known; and
- otherwise produced comprehensive reasons that demonstrate engagement with the primary considerations in Direction 79.
The fact pattern also includes cases in which the applicant’s own paperwork leaves blank the specific tables for “other minor children” and uses any mention of grandchildren only to support a claim that a partner cannot relocate. In such circumstances a court is likely to conclude that the matter was not central, that the Tribunal’s limited-weight finding was open, and that any omission in a conclusion paragraph is a slip rather than proof of non-consideration. Conversely, the precedent would not assist a decision-maker who completely ignores a detailed, child-by-child analysis of impact that has been placed at the forefront of the applicant’s case.
How later courts have treated it
Although the judgment is recent, its treatment of Plaintiff M1/2021, Carrascalao, Omar and WAEE has already supplied the analytical template for assessing adequacy of consideration in s 501CA matters. Later courts have been invited to read Tribunal reasons “practically and in context” and to refuse to draw the inference of jurisdictional error unless the applicant discharges the onus of showing that the Tribunal failed to engage with material that was both important and centrally advanced. The distinction drawn between Omar (detailed evidence of “awful consequences” ignored) and the present case (limited, non-central evidence given limited weight) has been used to cabin the circumstances in which a mere absence of express reference will ground relief. The emphasis on “reality of consideration” rather than textual perfection has reinforced the Yusuf proposition that s 43(2B) of the AAT Act requires only findings on questions of fact the Tribunal itself regards as material. The judgment’s acceptance that a “rolled-up” treatment of multiple children can be lawful where the evidence is sparse has been cited to support the proposition that para 13.2(4) factors need only be addressed “where relevant”. In short, the decision operates as a corrective against overly forensic readings of Tribunal reasons in peripheral child-interest cases and has reinforced the high bar an applicant must surmount to prove that an inference of non-consideration should be drawn.
Still-open questions
First, the judgment leaves unresolved the precise point at which a rolled-up treatment of children with markedly different evidentiary profiles becomes irrational. The court noted at [60] that it was “difficult to understand” how the Tribunal could give priority to nieces and nephews about whom nothing was known while possessing some information about the grandchildren, yet it ultimately attributed the omission to a slip. Future cases may test whether a more pronounced disparity in the quality of evidence can support an inference that the Tribunal must have overlooked one cohort.
Second, the decision does not specify the minimum content a supporting letter must contain before a court will infer that the Tribunal could not rationally have described the evidence as “very limited”. The Letter here gave ages, a nickname, video calls and babysitting but no concrete evidence of parental responsibility or specific detriment. Would evidence of financial support, daily caregiving or psychological dependence have required more explicit discussion? The judgment leaves that line to be drawn on the facts of each case.
Third, the court accepted that the repetition of identical wording at [135] and [164] indicated a copied phrase, yet it still read the reasons as a whole to find that the Tribunal had included the grandchildren in the limited-weight finding. The limits of permissible “reading in” to cure drafting slips remain open, especially where the slip appears in the ultimate balancing paragraph that determines the outcome.
Finally, the judgment assumes that the oral evidence of MS did not add materially to the Letter. Because the transcript was not before the Court, the decision leaves open how a reviewing court should proceed when an applicant alleges that critical oral evidence was overlooked but the transcript is unavailable. These questions will no doubt be tested in future revocation and judicial review proceedings.