Consideration
38 For the reasons that follows, I have concluded that materiality is a necessary requirement for the Tribunal's error to amount to jurisdictional error and that in the circumstances of the case the error was material because it deprived the applicant of a realistic possibility of a different outcome. For the same reason, in my view granting the applicant relief would not necessarily be futile and I therefore decide not to exercise my discretion against the grant of relief.
39 The starting point is to identify what the Tribunal decided. From its reasons it is apparent that the first thing that it decided is that although it had jurisdiction to entertain the review of the delegate's decision, neither it nor the delegate had the power (or authority) to revoke the visa cancellation because on its finding of the facts (which are not in dispute before me) the objective jurisdictional fact of the applicant's representations being made within the requisite time period was not satisfied. The other thing that the Tribunal decided is that because the delegate had misapprehended its power, because he was in error in finding that that objective jurisdictional fact had been satisfied, the delegate's decision should be set aside but that the visa cancellation remains valid.
40 The intended effect of the order was apparently to wipe the slate clean; effectively to set aside the delegate's decision not to exercise his jurisdiction under s 501CA(4)(b) because the Tribunal, having found that s 501CA(4)(a) was not satisfied, considered that the delegate should not, or could not, have reached s 501CA(4)(b). The remittal to the Minister is not by its terms a remittal for reconsideration. Taken together with the direction that the original mandatory cancellation "not be set aside", it is apparently intended to mean that the revocation mechanisms are exhausted and the Minister must do what is normally done in such a case - presumably remove the applicant from the country as required by s 198(2A)(c) of the Act.
41 It is clear that the Tribunal did not purport to decide the question that arises for decision under s 501CA(4)(b) - because of its decision on s 501CA(4)(a) it did not consider itself to have reached, or be able to reach, s 501CA(4)(b). Its treatment of the subjective jurisdictional fact of whether there is "another reason" to revoke the cancellation was hypothetical; it did not purport to decide that point with any legal efficacy and it did not understand that its decision on the point had any such efficacy. Had it done so, it would logically have affirmed the delegate's decision, not set it aside, or having set the delegate's decision aside it would have substituted its own decision refusing the request for revocation. It did neither of these things. The Tribunal apparently regarded itself as being within the terrain identified in Petrotimor at [11] and Qantas at [109], i.e., that it had no authority to hear and determine the controversy beyond the preliminary jurisdiction that it exercised in reaching that decision and it could therefore go no further and decide any other issues.
42 The Tribunal on review has the powers under s 43 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). A decision to set aside the decision under review and remit the matter for reconsideration pursuant to s 43(1)(c)(ii) of the AAT Act requires the original repository of the powers and discretions to exercise them afresh; they are not exercised by the Tribunal: Shi v Migration Agents Registration Authority [2008] HCA 31; 235 CLR 286 at [100] per Hayne and Heydon JJ referring to Re Brian Lawlor at 175-6. From this it is clear that upon its own understanding of its authority the Tribunal was not exercising the power to consider whether there was another reason that the visa cancellation should be revoked under s 501CA(4)(b)(ii) of the Act.
43 It can be observed that there is a fundamental problem with the decision made by the Tribunal. Under s 43(1)(c) of the AAT Act, if the Tribunal sets aside the original decision, as it did here, it can either make a decision in substitution of the decision set aside or it can remit the matter for reconsideration in accordance with any directions or recommendations of the Tribunal. What it has no power to do, but which it purported to do in this case, is to simply remit the matter but not for reconsideration.
44 If the remittal to the Minister, contrary to what is stated in the Tribunal's decision, is taken to be a remittal to the Minister for reconsideration, then the Tribunal erred in the direction that it gave. That is because rather than deciding the matter itself it impermissibly imposed its view of the inevitable decision on the Minister for the Minister (or his delegate) to make. See Civil Aviation Safety Authority v Allan [2001] FCA 1064; 114 FCR 14 at [18] per Moore J and Commonwealth of Australia v Horsfall [2010] FCA 443; 185 FCR 66 at [101]-[103] per Katzmann J.
45 Putting that problem, which was not the subject of submissions before me, to one side, I will now consider the issues that were the subject of submissions.
46 In certain respects the present case bears a remarkable similarity to Hossain. In that case there were, relevantly, two criteria that had to be met before the relevant visa could be granted. The one was that the visa application was validly made within 28 days of the applicant ceasing to hold a previous visa unless the Minister was satisfied that there were compelling reasons for not applying that criterion. The other was a public interest criterion expressed in terms that the visa applicant does not have outstanding debts to the Commonwealth unless the Minister was satisfied that appropriate arrangements had been made for repayment. See the judgment at [5].
47 The Tribunal was not satisfied on the evidence before it that either criterion was met. On that basis, the Tribunal affirmed the decision of the delegate which had been to refuse to grant a visa to the appellant. In relation to the criterion with regard to the timing of the making of the application, the Tribunal found that the appellant had not applied within 28 days of ceasing to hold a previous visa and was satisfied that there were no compelling reasons as at the time of the application for not applying the criterion. See the judgment at [6]-[7] and [44].
48 It was common ground in the review proceeding in the Federal Circuit Court and in the subsequent appeals to the Full Court of the Federal Court and to the High Court that the Tribunal erred with regard to the first criterion. The error was an error of law with regard to the power or jurisdiction to grant the visa. See the judgment at [2], [10], [23] and [26].
49 The essential question in the case was whether the Tribunal's error with regard to the first criterion, notwithstanding its finding that the second and equally necessary criterion was not satisfied, amounted to jurisdictional error such as to justify certiorari. A subsidiary issue, as in the present case, was whether even if there was jurisdictional error, as a matter of discretion relief in the nature of certiorari should not be granted.
50 All five of the judges who heard the case in the High Court were in agreement as to the result, which was to dismiss the appeal. Keifel CJ, Gageler and Keane JJ held that the threshold of materiality - which is a requirement for jurisdictional error even in the case of an error with regard to power or authority - would not ordinarily be met in the event of a failure to comply with a condition if complying with the condition could have made no difference to the decision that was made in the circumstances in which that decision was made: [30]. Ordinarily, breach of a condition cannot be material unless compliance with the condition could have resulted in the making of a different decision: at [31]. Because the Tribunal was not satisfied that the second criterion was met, its error in relation to the first criterion made no difference to the result and there was thus no jurisdictional error: [35].
51 Nettle J agreed with the reasons of Edelman J: [39]. His Honour also explained that since the Tribunal's error in relation to the one criterion was separate from and independent of the decision which it was required to make in respect of the other criterion, and the error in relation to the one criterion could not possibly have affected the decision in relation to the other, the error was not a jurisdictional error: [41]
52 Edelman J, after a survey of the authorities, held that an error will not usually be material, in the sense of affecting the exercise of power, unless there is a possibility that it could have changed the result of the exercise of power. In other words, materiality will generally require the error to deprive a person of the possibility of a successful outcome: [72]. His Honour held that because the error by the Tribunal did not affect the Tribunal's decision, the error lacked materiality and was thus not jurisdictional error: [46].
53 It follows from Hossain that the applicant's submission that the two criteria should be considered as independent "decisions" for the purposes of materiality cannot be accepted. Materiality looks to the ultimate outcome or result in the matter before the decision-maker not to separate integers that lead to that decision.
54 The applicant's reliance on DHX17 at [93] as authority for the proposition that materiality operates with reference to "discrete issues" does not assist because in that case there were two distinct decisions to be made under two distinct sources of power. The one was with regard to an extension of time under s 477(2) of the Act in which to commence judicial review proceedings and the other was the decision on the review itself under s 476. It was held (at [96]-[98]) that since the two powers are independent, it was wrong of the primary judge to have found that there was no materiality with regard to the Circuit Court judge's error on the extension of time application on the basis that the judicial review application would have failed in any event. The present case is quite different because there was only one decision to be made in the exercise of a single power, albeit that the exercise of that power depended on satisfaction of two discrete jurisdictional facts.
55 Also, the applicant seeks to get from Edwards more than it offers. Although, on that authority (at [46]), "mistakenly to deny jurisdiction is a jurisdictional error attracting a writ of certiorari", to mistakenly deny jurisdiction on one ground but to correctly deny it on another is not jurisdictional error because the overall decision to deny jurisdiction would remain the same regardless of the error. The question of materiality did not arise to be expressly dealt with in Edwards. So the absence of mention of it does not mean that it is not a requirement in relation to an error about jurisdiction.
56 It also follows from Hossain that the Minister's submission that the Tribunal's error was with regard to power, or authority, and not jurisdiction, cannot be accepted. In this context, to mistakenly conclude that a power is not enlivened is a mistake as to jurisdiction in the broad sense as it is referred to in Hossain.
57 The decisive implication of Hossain for the present case is that if the Tribunal had recognised that there were two criteria which if both satisfied would result in a decision to revoke the cancellation, and it had decided that neither criterion was satisfied, its error in relation to the one criterion would not have been a jurisdictional error because it could not have produced a different outcome. That is to say, the decision or finding without error in relation to one of the criteria would in any event have been decisive, with the result that the error in relation to the other criterion was immaterial and therefore not jurisdictional error.
58 However, that is not what the Tribunal in this case did. As I have concluded, the Tribunal did not make a finding in relation to the subjective jurisdictional fact in s 501CA(b)(ii). In my view, it is decisive to this case that no decision was actually made on this necessary element. That distinguishes this case from Hossain, and it means that the Tribunal's error was material to the outcome. Had the Tribunal not made the error that "could realistically have resulted in a different decision", to quote from SZMTA at [45] per Bell, Gageler and Keane JJ. That is because it did not make a decision on the other necessary element, it only expressed an opinion.
59 In case it might be thought that that is a technical or semantic distinction in view of the hypothetical opinion that the Tribunal expressed with regard to the other element, it should be borne in mind that the Tribunal's obligation of real consideration of the circumstances of the applicant had to be approached "confronting" what would be done to him by refusing the revocation; there had to be genuine consideration of the human consequences of the decision: Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; 267 FCR 628 at [3] per Allsop CJ, Markovic and Steward JJ agreeing. In the Tribunal's consideration of whether there was "another reason" to revoke the cancellation, it could not truly confront the consequences of its decision because it had already decided in relation to the separate objective jurisdictional fact that it had no power to revoke the cancellation; its consideration of "another reason" could bear no consequences. It is a matter of speculation whether, actually confronted with the real consequence of its decision, the Tribunal's assessment of whether there was "another reason" to revoke the cancellation might have been different.
60 The law has long recognised that there is a human element to decision-making that is affected by the consequences of the decision in question; it is not a mechanical function divorced from its real world effects. In that regard, Dixon J famously explained as follows in Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 at 361-362:
The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of mere mechanical comparison of probabilities independently of any belief in its reality. … [R]easonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved.
The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding, are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal.
61 The neurobiological basis to decision-making is described in Bennett H and Broe GA, "The civil standard of proof and the 'test' in Briginshaw: Is there a neurobiological basis to being 'comfortably satisfied'?" (2012) 86 ALJ 258. See also Bennett H and Broe GA, "The neurobiology of judicial decision-making: Indigenous Australians, native title and the Australian High Court" (2009) 20 PLR 112. This scholarship supports the proposition that the Tribunal's hypothetical decision, removed from any legal effect that it may have, may be different from a real world decision by it that has legal effect.
62 It is also to be noted that the applicant's case is not one where the ultimate outcome, following the weighing of the various considerations for and against revocation, is clear let alone a foregone conclusion. The applicant's offences are not at the particularly egregious end of the spectrum and he has four children, including two minor children, who are Australian citizens and who live in Australia. The interests of his children, and in particular his minor children, inevitably weigh heavily in favour of revocation. On any view, whether or not there is "another reason" to revoke the cancellation of the applicant's visa is in this case a finely balanced question.
63 I mention as an aside, because the applicant disavowed any reliance on it, that it is not clear that the Tribunal properly applied the Direction 79 criterion of "expectations of the Australian community" in finding that "the expectations of the Australian community would be that Mr Law not hold a visa". The Tribunal referenced the first instance decision in FYBR v Minister for Home Affairs [2019] FCA 500, rather than the appeal decision FYBR v Minister for Home Affairs [2019] FCAFC 185; 272 FCR 454. On one view, it is an error of law in the construction of the relevant clause of Direction 79 to conclude, as the Tribunal did, that the community expects a particular outcome in the particular case. See the appeal judgment at [97], but cf. [72].
64 Where materiality is in issue in an application for judicial review, and except in a case where the decision made was the only decision legally available to be made, the question of the materiality of the breach is an ordinary question of fact in respect of which the applicant bears the onus of proof. Like any ordinary question of fact, it is to be determined by inferences drawn from evidence adduced on the application. See SZMTA at [4], [41] and [46] per Kiefel CJ, Gageler and Keane JJ.
65 The point is that if the Tribunal had reconsidered the s 501CA(4)(b)(ii) question in the context of having to actually decide the fate of the applicant's revocation application, there is a realistic possibility that a different conclusion would have been reached.
66 Those considerations also deal with the Minister's submissions with regard to the Court's discretion not to grant relief in reliance on Gill - this is not a case where I consider that I should exercise my discretion against the grant of relief because the outcome is in any event "crystal clear". As I have indicated, it is far from that, particularly if the matter is considered by the Tribunal differently constituted.