Consideration
55 In our view, the Tribunal's approach to sub-paragraph (a) did involve error. As we have recorded, the Tribunal referred, in two paragraphs, to the Appellant's evidence about how he came to be involved in drug trafficking, and his remorse, before concluding, without further elaboration, that "taking into account all of the evidence [sub-paragraph (a)] militates strongly in favour of a finding that the Applicant's criminal offending has been of a very serious nature": at TR [71].
56 We reject the Respondent's argument that the failure of the Tribunal to detail the path of reasoning by which it arrived at the conclusion stated in TR [71] can be resolved by reference to the Appellant's burden, on the basis that the Appellant has failed to establish just how it was that the Tribunal came to the conclusion just stated. In our view, the primary judge erred in rejecting the Appellant's contentions of jurisdictional error based on a combination of analogical reasoning and recourse to the Appellant's burden.
57 Not all decision-makers are required to give written reasons for their decisions. However, where written reasons are given by a tribunal, it is to those reasons which a court must look in order to understand why a power was exercised as it was: Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 at [47] (Allsop CJ, Robertson and Mortimer JJ). The reasons actually stated by the Tribunal are to be understood as recording the steps that were, in fact, taken by the Tribunal in arriving at its decision: Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1368 at [26] (Burley J).
58 In CKT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 124 at [133], Katzmann, Charlesworth and Burley JJ stated that "[i]t is not appropriate … to infer that the Tribunal made findings or drew conclusions not mentioned in its written reasons". The Full Court made that observation in rejecting a submission by the Minister that, as a matter of fact, the Tribunal had considered the risks of harm to the appellant in that case against the available country information based on the contents of the transcript. As the Full Court went on to say (at [134]-[135]), "[t]he conclusion that the Tribunal might have reached is not apparent from the transcript in any event. … The reasons do not expressly disclose that the Tribunal availed itself of the option of deferral discussed in [Plaintiff M1/2021 v Minister for Home Affairs (2012) 96 ALJR 497; [2022] HCA 17], and there is no basis to draw such an inference on the facts of the present case."
59 In FTZK v Minister for Immigration and Border Protection (2014) 88 ALJR 754; [2014] HCA 26 at [67], Crennan and Bell JJ referred to what was said by Kerr J in FTZK v Minister for Immigration and Citizenship (2013) 211 FCR 158 at [118] as follows:
For a reviewing court to imply or infer critical findings of fact, not expressed in the decision‑maker's reasons, would, his Honour said, "turn on its head the fundamental relationship between administrative decision‑makers and Chapter III courts exercising the power of judicial review".
60 Their Honours' observations were in turn referred to in Acting Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CWY20 (2021) 288 FCR 565 at [130], where Besanko J (with whom Allsop CJ, Kenny, Kerr and Charlesworth JJ agreed) again cautioned against drawing inferences as to findings of fact, or paths of reasoning not set out in a decision-maker's reasons, and stated:
The cases are legion in which the Courts have said that it is not appropriate, or ordinarily appropriate, to infer that the decision-maker has made findings or drawn conclusions not referred to in the written reasons of the decision-maker (see, for example, SZMDS at [36] per Gummow ACJ and Kiefel J; FTZK v Minister for Immigration and Border Protection (2014) 88 ALJR 754 at [67] per Crennan and Bell JJ; Minister for Home Affairs v Omar (2019) 272 FCR 589 at [34(a)]; Minister for Immigration and Citizenship v SZLSP (2010) 187 FCR 362 at [55] per Kenny J).
61 Giving a "beneficial construction" to an administrative decision-maker's decision requires that a court not construe reasons minutely and finely with an eye keenly attuned to error (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-2 (Brennan CJ, Toohey, McHugh and Gummow JJ)); but it does not permit a court to "fill in gaps in the path of reasoning": Sadsad v NRMA Insurance Ltd (2014) 67 MVR 601; [2014] NSWSC 1216 at [47] (Hamill J); see also SZCBT v Minister for Immigration and Multicultural Affairs [2007] FCA 9 at [26] (Stone J); AEM20 v Minister for Home Affairs (2020) 277 FCR 299 at [95] (Katzmann J); Deng v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 403 ALR 232; [2022] FCAFC 115 (Deng) at [128] (Farrell, Moshinsky and Burley JJ) to the effect that a conclusion of error cannot be avoided on the basis that an impugned finding was open to the Tribunal if discharging the Tribunal's statutory function required that it address certain matters en route to the finding in question.
62 In Deng, the primary judge considered that the Tribunal used the expression "intimate partner" as a shorthand expression for a person who fell within the concept of a "member of the person's family". The Full Court disagreed, reasoning that it was not possible to know whether the Tribunal used the expression in that way where the Tribunal had not explained its approach: Deng at [129]. As such, Deng also illustrates that unexplained findings in a decision-maker's reasons will not usually avoid a finding of error where, on review, it is possible to posit a logical and legally available means by which the finding could have been reached.
63 Accordingly, we must look to the Tribunal's reasons to discern its course of reasoning. Having set out paragraph 8.1.1(1) of the Direction, the Tribunal paraphrased the import of sub-paragraph (a), as it set out the deemed views of the Australian government and community on the conduct there referred to. The Tribunal then referred to the Appellant's evidence as to how he became involved in criminal drug-related activity and his remorse, before stating its view in relation to sub-paragraph (a) at TR [71].
64 The Tribunal's reasons do not expose any chain of reasoning at all, let alone a comprehensible one, between the features of the Appellant's evidence referred to and the conclusion that sub-paragraph (a) "militates strongly in favour of a finding that the [Appellant's] criminal offending has been of a very serious nature". As such, the Tribunal's reasons involved error. It was not incumbent on the Appellant to establish just how the Tribunal came to state the conclusion that it stated, and that that unstated method of reasoning involved error. Rather, the error lies in the very lack of any articulated comprehensible connection between the conclusion and the articulated basis for it.
65 We do not consider that the approach adopted by the primary judge is available to avoid a conclusion that the Tribunal's approach involved error. The short point is that we do not consider that the deficiencies in the Tribunal's reasoning can be overcome either by inferring that the Tribunal in fact reached the conclusion that it did concerning sub-paragraph (a) based on analogical reasoning, or that the contention of error could properly be rejected on the basis that the Appellant had not discharged his onus.
66 In our view, to infer that the Tribunal in fact adopted an analogical course of reasoning goes too far in filling in gaps in the Tribunal's path of reasoning. To reason in that way is contrary to the authorities referred to above. Nor do we consider that such an approach to determining whether a Tribunal's course of reasoning involves error has been endorsed by the High Court in MZAPC. As the primary judge observed, in MZAPC at [38], Kiefel CJ, Gageler, Keane and Gleeson JJ identified that:
The counterfactual question of whether the decision that was in fact made could have been different had there been compliance with the condition that was in fact breached cannot be answered without determining the basal factual question of how the decision that was in fact made was in fact made. Like other historical facts to be determined in other civil proceedings, the facts as to what occurred in the making of the decision must be determined in an application for judicial review on the balance of probabilities by inferences drawn from the totality of the evidence. And like other counterfactual questions in civil proceedings as to what could have occurred - as distinct from what would have occurred - had there been compliance with a legal obligation that was in fact breached, whether the decision that was in fact made could have been different had the condition been complied with falls to be determined as a matter of reasonable conjecture within the parameters set by the historical facts that have been determined on the balance of probabilities.
(references omitted)
67 However, what was said in MZAPC about drawing inferences about basal factual questions about how the decision in question came to be made, was said in relation to the exercise that a court must undertake in determining whether an established error is jurisdictional. The High Court's observations were not addressed to drawing inferences to determine whether there was error at all, still less drawing inferences that might permit an otherwise unexplained substantive conclusion to be explained by inferences as to a course of reasoning nowhere stated in the decision-maker's reasons.
68 The Tribunal did not state how it arrived at the conclusion that sub-paragraph (a) "militates strongly" in favour of a finding that the Appellant's criminal offending was of a very serious nature. Even if the question of whether there was error can be determined by drawing inferences as to an unstated course of reasoning, we do not consider that there are sufficient markers in the Tribunal's reasons for us to infer that the Tribunal in fact adopted the analogical reasoning identified by the primary judge.
69 While the Appellant urged strongly that analogical reasoning was an impermissible approach to sub-paragraph (a), it is not necessary for us to finally decide that point and we say no more on it, save to make two observations. The first is that it does not obviously seem an impermissible approach to consider the seriousness of particular offending before the Tribunal by reference to the view taken by the Australian government and community of different offending. Secondly, and in any case, we do not accept the contention advanced by the Appellant that the analogical form of reasoning posited by the primary judge would have involved the Tribunal reaching conclusions about how the Australian government and community would regard the seriousness of the offending before the Tribunal, as distinct from reaching its own view on the nature and seriousness of the offending, having regard to the deemed views of the Australian government and community as regards other types of offending. In other words, the analogical form of reasoning need not involve the Tribunal reaching conclusions on the views of the Australian government and community and exceeding its proper function when it is for the Minister to assess and determine what (properly informed) community values or attitudes would be (see the discussion of the Full Court in CKL21 v Minister for Home Affairs (2022) 293 FCR 634 (CKL21) at [29]-[30] (Moshinsky, O'Bryan and Cheeseman JJ) and the cases referred to therein).
70 As we have noted in setting out the primary judge's approach, there are strong indications that his Honour determined that the Tribunal did not err as contended for by ground 2 on the basis that the Tribunal in fact engaged in analogical reasoning. That said, we also recognise that other aspects of the primary judge's reasons speak more strongly of the point having been decided based on the question of onus.
71 While the primary judge was of course correct to point to the onus borne by the Appellant, we do not agree that it could only be discharged by the Appellant satisfying the court that the Tribunal must have adopted a specific unstated, but erroneous, course of reasoning, and not some other, also unstated, but not erroneous, course of reasoning. Here, the Tribunal's reasoning was scant and included a conclusion (at TR [71]) that bore no exposed logical connection with either the preceding paragraphs (at TR [69]-[70]) or the precis of what sub-paragraph (a) stated: at TR [68].
72 As we have explained above, in our view, in circumstances where a logical connection cannot be supplied by filling the gaps in the Tribunal's reasons, the only remaining conclusion available is that the Tribunal has erred in some way, and it is not necessary to fix firmly on the precise dimensions of the error. It places an impossibly high burden on the Appellant to require the non-citizen to prove that the Tribunal fell into a specific misconception, which misconception presents a more compelling explanation for the Tribunal's conclusion than an explanation devised by the judge (but nowhere found in the Tribunal's reasons).