Mamatta v Minister for Immigration, Citizenship and Multicultural Affairs

Mamatta v Minister for Immigration, Citizenship and Multicultural Affairs - [2023] FCA 1077 - FCA 2023 case summary — Zoe

[4]

The applicant's representations

As this ground complains that the Tribunal misunderstood the applicant's representations, it is necessary to identify those representations, at least in a summary way.
The applicant submitted to the Tribunal that Direction 90, being a direction made by the Minister pursuant to s 499(1) of the Migration Act and a direction with which the Tribunal must comply by reason of s 499(2A), was of "no real utility" in determining whether there was another reason to revoke the cancellation decision. This was said to be because, while Direction 90 gives guidance to officers in the performance of their functions and exercise of their powers, it does not create a code for dealing with the representations made by the applicant for review. As such, it was submitted that it would be wrong for the Tribunal to confine itself to balancing the primary and other considerations in Direction 90.
The applicant also submitted to the Tribunal that the principles and considerations in Direction 90 were either "not directly relevant to engendering a state of satisfaction on the part of the Tribunal" that there was another reason to revoke the cancellation decision in this case or, to the extent that they were relevant, that they weighed "in favour of the Tribunal being satisfied" that there was another reason. Importantly, the applicant expressly disavowed any suggestion that his representations invited or required the Tribunal to disregard Direction 90.
Relevantly to his particular situation, the applicant submitted that:
he had a visa that was always limited as to time (and expired by the effluxion of time on 25 June 2021);
revocation of the mandatory cancellation would not restore to him any visa, or give him any right to enter into or remain in Australia;
by reason of (2), any principle or consideration (primary or other) that relates to protection of the Australian community or expectations that a visa ought to be cancelled in prescribed circumstances does not weigh against setting aside the mandatory cancellation;
in effect, all that setting aside the mandatory cancellation would do is treat the mandatory cancellation as though it had never been made (pursuant to s 501CA(5) of the Migration Act);
by reason of (4), the applicant would satisfy the special return criteria in Sch 5, item 5001 of the Migration Regulations 1994 (Cth) when being considered for an application for any other type of visa. The Minister's decision on whether to grant a new visa is discretionary and would involve a consideration of the factors in Direction 90 in deciding whether to grant, or refuse to grant, any future visa. Alternatively, if the cancellation decision was not revoked, the applicant's extant partner visa application would be "bound to fail" and the applicant could not return to Australia.
The applicant submitted to the Tribunal that the consequences of a decision not to revoke the cancellation decision presented another reason why it should be revoked.

[5]

The Tribunal's reasons

The Tribunal described the applicant's submissions at s23 of its reasons as follows: The Applicant contends that the Direction is of no real utility in determining whether there is another reason for restoring the Applicant's visa status pursuant to s 501CA(b)(ii) of the Act. As I understood it, the gist of the utility contention is that the abovementioned Primary and Other constituent parts of the Direction are not relevant to the to [sic] specific circumstances of this case. This is said to be so because of certain nomenclature in the language of the Direction. In particular, it is contended that the mandatory obligation incumbent on the Tribunal to take into account the abovementioned componentry of the Direction is obviated by virtue of the words 'where relevant'. (emphasis original.)
The Tribunal observed that it was necessary for it to genuinely consider and reach a conclusion about the validity of the utility contention as part of its decision-making rationale. The Tribunal then stated at s26: While it may be contended by the Applicant that the previous Tribunal may have failed to deal with the case as presented to it, it does not necessarily follow that the Federal Court's remitting decision stands for the proposition that this Tribunal should disregard the Direction. (emphasis added.)
The Tribunal extracted the applicant's submissions regarding the relevance of Direction 90, and his "core representation[s]" as described above: ss27-28. The Tribunal then proceeded to address the core representations as follows at ss29-33: In the following bullet points, I will address each of these elements of the core representation in turn.

I have difficulty in comprehending in how the time-limited nature of the Applicant's previously held student visa now militates in favour of a contention that the Direction does not apply to the instant determination. I have this difficulty for a couple of reasons. First, the Direction, at paragraph 5.2(4) makes clear reference to '…those holding a limited stay visa…' in the context of the extent of the Australian community's level of tolerance for serious conduct. Second, the Direction specifically contemplates a situation '…where a non-citizen is serving a sentence of imprisonment but will not have a visa which is in effect at the end of the sentence.' While this Tribunal is not precluded from taking into account the nature and duration of any visa in its decision making process, it does not follow that, for example, the time-limited nature of a given visa somehow obviates, in whole or in part, the ambit of the Tribunal's discretion in applying the Direction as part of determining whether there is 'another reason' to restore the Applicant's visa status pursuant to s 501(4)(b)(ii) of the Act;
It is correct for the Applicant to say that a revocation decision by this Tribunal would have the practical effect of not restoring the Applicant's previous visa status nor would it afford him any right to enter into or remain in Australia. I have difficulty in making any safe of [sic] logical leap from that proposition to the Applicant's following proposition which suggests that any principle or consideration in the Direction relating to either or both of (1) protection of the Australian community; or (2) the expectations of the Australian community are not engaged for the purposes of the instant determination. To my mind, the fundamental difficulty with this submission is that it purports to isolate the Tribunal's assessment and application of these two Primary Considerations to a paradigm arising immediately after publication of its decision. The language of the Direction does not impose a time-specific requirement on this assessment, but instead, requires the Tribunal to take future risk into account. For example:
nothing in the language of the chapeau to paragraph 8.1 of the Direction dealing with protection of the Australian community purports to so limit the abovementioned assessment of the Tribunal in relation to that Primary Consideration 1;
principle 5.2(5) is future-looking. It directs decision-makers to take into account the Primary and Other Considerations relevant to an individual case and further contemplates the nature of unlawful conduct to be taken into account by the Tribunal '…if the conduct were to be repeated…';
paragraph 8.1(2) is future-looking. It requires an assessment of the nature and seriousness of a non-citizen's conduct '…to date…' but goes on to direct that in assessing the recidivist risk represented by a non-citizen, the decision-maker should make an assessment about such risk '…should the non-citizen commit further offences or engage in other serious conduct…'
paragraph 8.1.2(1) is future-looking. It compels decision-makers - in the course of assessing recidivist risk - to have regard to the Government's view that the '…Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases.'
paragraphs 8.1.2(2)(a) and (b) are both future-looking. In assessing recidivist risk, it compels decision makers to look at the nature of the harm '…should the non-citizen engage in further criminal or other serious conduct.' In assessing the likelihood of the Applicant '…engaging in further criminal or other serious conduct…'. a decision-maker is directed to take into account, inter alia, information and evidence on recidivist risk and evidence of any rehabilitation undertaken by the non-citizen. I am therefore satisfied that Parliament did not intend for the Direction to directly or indirectly time-limit or time-specify the period of time in respect of which the Tribunal must make an assessment about how (1) the Applicant's recidivist risk impacts the protection of the Australian community; and (2) the expectations of the Australian community referrable to the Applicant's offending profile in this country. I agree with the Respondent's contention: 'the Tribunal does not have to assess risk in any particular way.' It logically follows that the assessment of (and allocation of weight to) the Direction's components relating to protection of the Australian community should encompass a non-citizen's potential for re-entering the Australian community. A similar conclusion can be reached with reference to how the Tribunal assesses (and allocates weight to) Primary Consideration 4 of the Direction comprising the expectations of the Australian community. I do not think the Direction predicates analysis of this particular Primary Consideration on a temporal basis such as when, for example, a person is in Australia. Principal [sic] 5.2(3) of the Direction makes plain that 'The Australian community expects that the Australian government can and should refuse entry to on-citizens [sic], or cancel their visas, if they engage in conduct, in Australia or elsewhere, that raises serious character concerns.' Cancellation of a visa is not a temporally-based exercise. The language of Primary Consideration 4 itself endorses the absence of any temporally-based requirement as a pre-condition to its application. In particular, paragraph 8.4(2) of the Direction says '…the Australian community expects that the Australian Government can and should refuse entry to non-citizens or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere…'. The instant consideration before the Tribunal does not involve cancellation of the Applicant's visa. It involves the question of whether or not there is another reason to revoke that cancellation. The Direction has nothing to say about any temporal requirement that analysis of this Primary Consideration is exclusively predicated on a time when a non-citizen is seeking to stay in or enter Australia. (emphasis original; citations omitted.)

The Tribunal further stated at ss42-43: The Applicant contends that this Tribunal's statutory task of applying the Direction to the instant task is best left to a future decision maker who will then ascertain whether s 501 of the Act precludes the grant of that visa. Support for this contention is sought from s 65 of the Act. In the third of the four conjunctive criteria of s 65, the Minister must be satisfied that the grant of the visa sought by the Applicant is not prevented by (inter alia) s 501 of the Act. It is difficult to see how this Tribunal's statutory task is displaced by the Minister's possible future consideration (and determination) of any future visa sought by the Applicant. There is nothing in the Act or the Direction suggesting that this Tribunal is precluded from applying the Direction to the instant facts simply because the Direction may be applied by the Minister at some future point. As noted by the Respondent 'That Direction no. 90 may be applied at that future point does not exclude its application here.' I agree. (emphasis original.)
The Tribunal concluded that the applicant's argument about utility did not "obviate or otherwise displace this Tribunal's statutory obligation to apply the Direction to the instant facts" and, further, "the circumstances of this case… do not otherwise serve to displace this Tribunal's statutory obligation to apply the Direction". In so finding, the Tribunal considered that none of the primary and other considerations were temporally or geographically limited and were therefore applicable where relevant: ss46, 49.
The Tribunal then applied Direction 90, and found that all but one of the primary considerations weighed heavily or very heavily in favour of affirming the non-revocation decision, and the remaining primary consideration only moderately favoured setting it aside: s227. Of the relevant other considerations, one weighed slightly in favour of setting aside the non-revocation decision and the other weighed moderately in favour of the same: s225. The balance of the other considerations were determined to not be relevant.
As a result, the Tribunal concluded that the primary considerations in favour of affirming the non-revocation decision outweighed those considerations in favour of setting it aside, and it decided to affirm the non-revocation decision: s228.

[6]

Consideration

The applicant submitted that it is apparent from the Tribunal's reasons that it proceeded upon the misconception that the applicant sought that the Tribunal disregard, in the sense of not consider, Direction 90 or that the Direction (in whole or part) did not apply to the applicant because he was outside of Australia. The applicant submitted that so much is apparent from the Tribunal's "construction" of the Direction and its conclusion that the Direction was not temporally or geographically limited.
The applicant submitted that his representation before the Tribunal was that, for the reasons which he explained, confining itself to considering (in the sense of deciding and then weighing) the considerations identified in Direction 90 was not sufficient or of utility in this instance. The applicant submitted that whether or not the Tribunal accepted the applicant's submission was a matter for the Tribunal but that it was essential for the Tribunal to understand that submission and to consider it. The applicant concluded that the failure to do so meant that the Tribunal did not consider the applicant's representations and that, had the Tribunal done so, including to recognise that the question arising was not one of power or construction, but of undertaking the statutory task prescribed, there was a realistic possibility the Tribunal may have reached a different decision.
In response, the Minister advanced a number of disparate arguments in relation to ground 1.
First, the Minister addressed the well-established principles relevant to finding that a decision-maker did not "consider" a matter; in particular, that the absence of a finding or reference to a representation does not mean that the decision-maker did not consider the representation. As to this, the Minister submitted, "it would only be if the misunderstanding resulted in the representations in question not being considered that it might potentially manifest in jurisdictional error".
However, the jurisdictional error that emerges from failing to consider a matter is not confined to circumstances where a decision-maker elides reference to a matter, but extends to those circumstances where the decision-maker has misunderstood a "substantial and clearly articulated argument" or "the case being made by the former visa holder": Plaintiff M1/2021 v Minister for Home Affairs (2022) 178 ALD 304; [2022] HCA 17 at s27 (Kiefel CJ, Keane, Gordon and Steward JJ).
As the Full Court explained in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263 (Black CJ, French and Selway JJ) at s63: …if the Tribunal makes an error of fact in misunderstanding or misconstruing a claim advanced by the applicant and bases its conclusion in whole or in part upon the claim so misunderstood or misconstrued its error is tantamount to a failure to consider the claim and on that basis can constitute jurisdictional error …
In any event, the applicant does not rely on the absence of reasons in the Tribunal's decision to argue jurisdictional error. Nor, contrary to the Minister's submissions, does the applicant's first ground of review accept that a jurisdictional error will only arise if the misunderstanding led to the Tribunal not considering it. Rather, the applicant relies on the Tribunal's reasons to assert that it did not understand his representations and therefore could not have considered them. For these reasons, the Minister's argument is not accepted.
The Minister next contended that not all of the applicant's arguments were "clearly expressed and … significant" and based on "established facts" such that, as a consequence, even if some of the arguments were misunderstood, it was not necessary for the Tribunal to address them, citing Minister for Home Affairs v Omar (2019) 272 FCR 589; [2019] FCAFC 188 (Allsop CJ, Bromberg, Robertson, Griffiths and Perry JJ) at s34(h); JZGW v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1333 (Bromberg J) at s20.
That submission was advanced in respect of two of the applicant's submissions before the Tribunal which the Minister contended were internally inconsistent, being as follows:
The applicant submitted that, if the cancellation decision was not revoked, the consequent failure of the applicant's partner visa application presented another reason to revoke the decision. However, the Minister argued that the partner visa application could only provide a viable reason to revoke the cancellation decision if there was a chance that the applicant would obtain that visa and be able to return to Australia.
At the same time, the applicant submitted that he did not present a risk to the Australian community because he was offshore. According to the Minister, the corollary of that submission was that there was no prospect of the applicant returning to Australia via the grant of the partner visa or otherwise.
However, the applicant's argument was that he does not present a risk to the Australian community because, if the cancellation decision was revoked, he would not automatically be returned to Australia as his visa had expired. That is because the expiry of his visa and the lack of any other extant visa meant he was neither entitled to enter nor remain in Australia at present. As such, it was the applicant's position that those considerations in Direction 90 regarding the protection of the community that were referable to entry and return were either not relevant, or were to be weighed in favour of the applicant or were neutral. That is not the same thing as saying that the applicant could not present any risk because he would not ever return to Australia in the future.
The applicant further argued before the Tribunal that, when weighed against his contention that he should be at liberty to apply for another visa, and that the failure of his partner visa would be a fait accompli in the event of affirmation of the decision, the Tribunal should have been satisfied that there was "another reason". This second contention was not an invitation to the Tribunal to consider whether the applicant should be permitted to enter Australia in the future; rather, it was a submission that the permanent consequences of a decision not to revoke the cancellation decision were "another reason" to revoke the cancellation decision. As part of that argument, the applicant submitted that the more appropriate time to consider Direction 90 would be once the applicant's partner visa came before the Minister for review. In order to make that submission good, the applicant identified the steps involved in obtaining the grant of a visa, beyond merely filing an application for one. It was said that in those future circumstances, there would be another visa application on foot which directly involved returning to Australia, and it would be at that point that the Minister should apply the risk considerations in Direction 90.
In summary, therefore, the applicant's submissions were that:
the applicant's absence from Australia paired with his lack of entitlement to return meant he did not present a risk to the Australian community at the time the decision was being made; and
the applicant's permanent exclusion from Australia, being the inevitable result if the non-revocation decision was affirmed, was a significant consequence which would bar him from ever applying to re-enter in the future, and would condemn his application for the partner visa (which also did not entitle him to stay or return to Australia at the time the decision was being made).
Leaving aside the merits of those submissions, it was open to the applicant to advance them concurrently. And contrary to the Minister's stance on this application, the representations were "clearly expressed", "significant" and based on "established facts". As such, I do not accept that the Tribunal was not obliged to consider the representations.
The Minister next submitted that the proper focus ought to be whether or not the representations particularised in the applicant's originating application had been considered by the Tribunal. It was then said that, because these individual representations within the applicant's argument were considered by the Tribunal (by reference to aspects of its reasons), it could not be said that the Tribunal had failed to consider the applicant's argument.
The Minister's submissions addressed whether the Tribunal had considered each particularised representation, namely:
whether the Tribunal considered that a decision not to revoke the cancellation decision would preclude any opportunity for the applicant to receive the partner visa;
whether the Tribunal considered that, in deciding whether to grant the partner visa, the Minister would otherwise consider matters raised by Direction 90 because the applicant did not pass the character test; and
whether the Tribunal considered that there was no appreciable risk to the Australian community arising from any revocation decision, because the applicant was outside of, and could not return to, Australia by force of such a decision.
However, the Minister's submissions cannot be accepted. It was the applicant's case before the Tribunal that those facts presented another reason why the Tribunal should revoke the cancellation decision, but his overarching contention was that Direction 90 did not define the limit or scope of the Tribunal's consideration as to whether there was "another reason" to revoke the cancellation decision.
Further, as submitted by the applicant, whether the Tribunal considered his representations is not to be assessed on the basis of a line-by-line analysis of the Tribunal's reasons, treating each statement as its own representation. Rather, in exercising the power under s 501CA(3) and (4) of the Migration Act, the Tribunal (standing in the shoes of the Minister) is required to give consideration to the grounds raised by the applicant in the representations made "as a whole": see Guclukol v Minister for Home Affairs (2020) 279 FCR 611; [2020] FCAFC 148 (Katzmann, O'Callaghan and Derrington JJ) at s42.
The Minister also stressed the importance of reading the Tribunal's reasons fairly and not in an unduly critical manner: BVD17 v Minister for Immigration and Border Protection (2019) 268 CLR 29; [2019] HCA 34 (Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ) at s38. Equally, however, the Court's "eyes should not be so blinkered as to avoid discerning an absence of reasons or reasons devoid of any consideration of a submission central to a party's case": Soliman v University of Technology, Sydney and Another (2012) 207 FCR 277; [2012] FCAFC 146 (Marshall, North and Flick JJ) at s57.
In this case, a fair reading of the Tribunal's reasons reveals that it plainly misunderstood the applicant's submissions. That is because the Tribunal characterised the argument advanced by the applicant as being that the Tribunal should "disregard" or "not apply" Direction 90, when such a submission was not made by the applicant and, indeed, was expressly disavowed by the applicant: see ss26, 29. The same can be said of the Tribunal's references to the applicant's alleged contention that the other reasons he advanced obviated or otherwise displaced Direction 90: ss23, 29, 41, 46, 49. That submission was never adopted by the applicant, and represents a materially different representation to that which was advanced.
The Tribunal also considered whether Direction 90 was temporally or geographically limited in its application and decided that it was not so limited. That construction of Direction 90 was open to the Tribunal, and the applicant accepted as much in his submissions to this Court. However, it was erroneous for the Tribunal to characterise that limitation as an argument that had been advanced by the applicant when it was not.
Rather, the applicant's submission was that: the Tribunal ought not to confine itself to Direction 90 in determining the matter; the considerations in Direction 90 were largely not relevant (not inapplicable) because of the particular facts; to the extent the considerations in Direction 90 were relevant, they could not bear negatively on the applicant's case; and the consequences of non-revocation outweighed any detrimental considerations in Direction 90, thereby presenting "another reason" to revoke the cancellation decision.
As such, even if it can be accepted that the Tribunal addressed the statements particularised by the applicant in his originating application, this does not salvage the reasons from jurisdictional error. That is because the Tribunal's decision betrays a fundamental misunderstanding of the overarching argument advanced by the applicant.
Whether a jurisdictional error has been shown also turns on whether the error was material: Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3 (Bell, Gageler and Keane JJ) at s45, which was cited with approval in MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506; [2021] HCA 17 (Kiefel CJ, Gageler, Keane and Gleeson JJ) at s3. The applicant bears the burden of proving, on the balance of probabilities, that there was a "realistic possibility" that the Tribunal's decision could have been different if it had not made the error: MZAPC at ss38-39.
The Minister submitted that, even if an error was established, there was no realistic possibility that the Tribunal could have come to a different outcome. That submission was put on the basis that the Tribunal concluded that the applicant was an "unacceptable risk" to the Australian community, and that most of the primary considerations under Direction 90 weighed heavily against the applicant. The Minister also submitted that, in light of the weight attributed to the considerations in Direction 90 and in order to overcome the materiality threshold, the applicant needed to persuade this Court that the Tribunal could have given enough weight to the submission about the existence of "another reason" to revoke the visa cancellation that it could have been determinative of the case. The Minister characterised that submission by the applicant - that affirming the delegate's decision would extinguish any chances of him obtaining the partner visa and that this presented "another reason" - as a "loss of chance" or "loss of opportunity" claim. The Minister submitted that there was no "realistic possibility" that the Tribunal could have given dispositive weight to that representation because there was a lack of evidence substantiating the prospect of the applicant actually obtaining the partner visa.
The Minister also relied on the Tribunal's reasons, which reveal that it assessed the applicant's case on the premise that he would not be permitted to return to Australia. As such, the Minister submitted that it was difficult to see how the applicant's argument about the detriment that would flow from his permanent exclusion from Australia was material. It was submitted that, by parity of reasoning with Bromberg J in DLJ18 v Minister for Home Affairs (2019) 273 FCR 66; [2019] FCAFC 236 at s38 (with whom Snaden J agreed at ss90-91), there is no reason to think that where the Tribunal took into account the applicant's exclusion from Australia, the result could have been different if it had specifically appreciated that this was a legal consequence of the non-revocation decision referable to the special return criteria.
For the following reasons, however, the Minister's submissions cannot be accepted:
as correctly pointed out by the Minister, the Tribunal conducted much of its analysis on the basis that the applicant would be excluded from Australia: see, eg, ss162, 164, 194, 198-199, 212-213. Notwithstanding this, that analysis took place in the context of weighing the considerations in Direction 90, which analysis was infected by error for the reasons given above;
the applicant's representation that his permanent exclusion presented "another reason" to revoke the cancellation decision was advanced independently from the weighing of the considerations in Direction 90, which he had separately submitted were of little utility; and
the Minister's argument seeks to confine the Tribunal's error in ground 1 to the applicant's representation that he would be forever precluded from entering Australia if the cancellation decision was not revoked. However, that was only one aspect of the applicant's case; the applicant also submitted that Direction 90 did not set the boundaries of the Tribunal's assessment, and that many of the considerations in Direction 90 were neither relevant nor injurious to his case.
The applicant's representations regarding Direction 90 therefore bore directly on the approach to be taken by the Tribunal with respect to the considerations in it. For the reasons already given, those representations were misunderstood by the Tribunal.
As submitted by counsel for the applicant, had the Tribunal understood the applicant's representations, it may well have not made the unfavourable findings in relation to Direction 90, or it may have deferred them.
Having misdirected itself as to the applicant's representations on Direction 90, it cannot be said that there is no "realistic possibility" that the decision might have been different.
It follows that the Tribunal fell into jurisdictional error when it misunderstood, and thereby failed to consider, the applicant's representations about Direction 90.
Ground 1 has therefore been established.

[7]

Grounds 2 and 4

The applicant addressed grounds 2 and 4 together, and so I will do the same.
By ground 2, the applicant contends that the Tribunal erred as a matter of law in concluding that the Minister retained a discretion under s 65 of the Migration Act to grant the partner visa even if the applicant did not satisfy the special return criteria. The applicant contends that the Tribunal ought to have found that s 65 did not confer any such discretion, and that the provision precluded the grant of the partner visa.
The relevant part of the Tribunal's reasons stated at ss36-37: It can also be accepted that if this Tribunal does [sic] revoke the mandatory cancellation decision (s 501(3A) of the Act), then the Applicant would not satisfy the abovementioned Special Return Criteria. But that would not absolutely preclude the Applicant from possibly obtaining another visa. As noted in the abovementioned Regulation 5001(c)(ii), the Minister, acting personally, could theoretically grant a permanent visa to the Applicant. He has an application for a partner visa currently before the Minister. The Applicant contends that a decision by this Tribunal refusing to revoke the s 501CA(4) decision 'will mean his application [for a partner visa] is bound to fail.' This is not necessarily the case or cannot be known with any certainty. This is because the Minister's power to grant the partner visa is regulated by s 65 of the Act. Section 65(1)(a)(i)-(iv) stipulates four conjunctive criteria. If all four of those criteria are met, then the Minister's discretion is engaged. Section 65 of the Act expresses that discretion in binary terms - that is, depending on the Minister's level of satisfaction about whether a visa applicant satisfies the four conjunctive criteria, the Minister can then grant or refuse to grant the requested visa. (emphasis original; citations omitted.)
It is assumed, based on the context in which it appears, that the first sentence of the extract above contains a typographical error and should read "if this Tribunal does not revoke the mandatory cancellation decision" (emphasis added).
Section 65 of the Migration Act, to which the Tribunal refers, empowers the Minister to grant a visa where certain conditions have been met. In Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 201 CLR 293; [2000] HCA 19 at s41, Gleeson CJ, Gaudron, Gummow and Hayne JJ observed that s 65 "imposes an obligation" to grant a visa where the conditions are satisfied, "as distinct from conferring a power involving the exercise of a discretion".
The conditions of granting a visa in s 65 include the satisfaction of other criteria prescribed by the regulations: s 65(1)(a)(ii) of the Migration Act. The Migration Regulations prescribe, among other things, the criteria to be satisfied at the time of deciding whether to grant a Partner (Provisional) visa, which is the visa subject of the applicant's extant application. Clause 309.226 of the Migration Regulations provides that, if the visa applicant has previously been in Australia (as the applicant here has), then "special return criteria 5001 and 5002" must be satisfied.
The special return criteria require, among other things, that the visa applicant is not a "person whose visa has been cancelled under section 501, 501A or 501B of the Act, if: (i) the cancellation has not been revoked under subsection 501C(4) or 501CA(4) of the Act; or (ii) after cancelling the visa, the Minister has not, acting personally, granted a permanent visa to the person": Migration Regulations, Sch 5, cl 5001(c).
In the circumstances of this case, the applicant would only satisfy cl 5001 of the special return criteria if:
the decision to cancel his visa was revoked; or
the Minister, acting personally, granted him a permanent visa before the partner visa application came to be determined.
If the cancellation decision is not revoked, it is correct to say that the special return criteria may still be met. That is because, strictly speaking, the Minister may, acting personally, grant a permanent visa before the partner visa application is determined.
However, the Tribunal's conclusion in relation to s 65 is an error of law. The Minister's power to grant a permanent visa, acting personally, is not governed (or even conditioned) by s 65 of the Migration Act as the Tribunal's reasons seem to suggest. The only power to which cl 5001 could be referring in this context is the power under s 351 of the Migration Act. That section empowers the Minister to substitute certain decisions of the Tribunal for a decision more favourable to the applicant if the Minister thinks it is in the public interest to do so. In the exercise of that power, the Minister must also table a statement of reasons in each House of Parliament. That is a materially distinct power from that which the Tribunal purported to rely upon, and one which is not discussed in its reasons.
It is apparent, however, that this error was not material.
Even if the Tribunal had not made this error, there is no "realistic possibility" that its conclusion could have been different. That is because the Tribunal was correct to identify that, by reason of cl 5001(c)(ii) of the special return criteria, the applicant's partner visa application was not technically bound to fail. Indeed, to speak in mathematical terms, it was "theoretically" possible that the applicant could be granted a permanent visa by the Minister before the partner visa came to be determined: s37. For that reason, ground 2 must fail.
The applicant submitted that ground 4 would only be necessary to determine if the premise in ground 2 was rejected. As such, I now turn to ground 4.
By ground 4, the applicant contended that, having concluded that there was a theoretical possibility that the Minister could grant a permanent visa to the applicant, it was illogical, irrational, or unreasonable for the Tribunal not to assess or quantify that possibility. In essence, the applicant took issue with the Tribunal's "speculation" that the applicant could obtain a permanent visa without considering whether there was a "real or meaningful possibility" of that circumstance arising and without considering or identifying whether or what (if any) permanent visa the applicant was, or may be, entitled to be granted.
Before the Tribunal, the applicant submitted that the possibility of obtaining a permanent visa by a Ministerial grant and thereby satisfying the special return criteria was "mere conjecture". However, the applicant did not elaborate on this submission, such as by demonstrating to the Tribunal that it is rare for the Minister to exercise that power (if that is the case). Nor did the applicant identify or adduce any evidence about the visas which could have been obtained by him. The Tribunal was not obliged to consider the applicant's representations beyond the extent to which they were advanced.
It follows that I do not accept that the Tribunal's reference to the theoretical possibility of the applicant being granted a permanent visa rises anywhere close to the level of "unreasonableness" in the sense articulated by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 at s130 (being a decision "at which no rational or logical decision maker could arrive on the same evidence").
For these reasons, ground 4 must also fail.

[8]

Ground 3

This ground of review is premised on the Tribunal's statements at ss44-45 of its reasons, which stated: I reject the contention that in meeting its statutory obligation to apply the Direction to the instant facts, this Tribunal is denying the Applicant the opportunity to seek a future visa. This Tribunal should act within the confines of its statutorily-obligated task and apply the Direction. Much was sought to be made of a situation where an adverse outcome for the Applicant in this proceeding would forever preclude the Applicant from applying for another visa to come here. Harsh though this may sound, such a consideration is not within the ambit of this Tribunal's decision-making scope. This is so for two reasons. First, Item 5001(c) of the Regulations does not constitute an absolute bar on the Applicant's capacity to apply for another visa. Second, there is nothing in the language of s 501 of the Act permitting this Tribunal to make some kind of alternate 'conditional' or 'contingent' decision depending on a possible future outcome relating to the grant or non-grant of another visa. The responsibility of this Tribunal is straightforward: the decision under review is set aside or it is not set aside. (emphasis original.)
In summary, the Tribunal concluded that it was not within the ambit of its decision-making scope to consider the effect of its decision on the applicant's ability to return to Australia when considering whether there was another reason to revoke the cancellation decision. The applicant submitted that this conclusion was wrong on the basis that the Tribunal was obliged to consider the matter, being a representation identified by the applicant.
The Minister argued that the Tribunal did in fact consider the effect of its decision on the applicant's ability to return to Australia, and cited the Tribunal's reasons at s36 and s37, which are extracted above.
The applicant submitted that the vice in the Minister's submission was that it invites this Court to, in effect, overlook or read down the plain words which appear in s44 and s45. Further, the applicant submitted that the Minister's reliance on ss36-37 was flawed for the same reasons advanced in respect of grounds 2 and 4.
It is trite to observe that the Tribunal must read, identify, understand and evaluate the representations made by an applicant, and a failure to do so is tantamount to a jurisdictional error: Plaintiff M1/2021 at ss22, 24. As the applicant's exclusion from Australia was one of these representations, the Tribunal was indeed obliged to consider it. However, for the following reasons, it is not apparent that the Tribunal's reasons give rise to an error.
As addressed above, the Tribunal's conclusion at ss36-37 as to the theoretical possibility of the applicant obtaining a visa was correct. That is relevant because the applicant's representation that he would be forever precluded from returning to Australia was premised on his submission that failing to revoke the cancellation decision would mean he would never satisfy the special return criteria. As the Tribunal rejected that premise, the applicant's argument that he would be forever excluded from Australia could not succeed.
The fact that the Tribunal characterised the applicant's representation as one falling outside of its decision-making scope appears, in substance, to be an unfortunate choice of words. As demonstrated by s36 and s37, the Tribunal did consider whether the applicant would be permanently precluded from returning to Australia by reason of the special return criteria. This is borne out by the fact that the Tribunal justified its finding at s45 by reference to the special return criteria, which it stated "does not constitute an absolute bar on the Applicant's capacity to apply for another visa".
It follows that, there was either no error or, if there was an error, such error was not material.
For these reasons, ground 3 must fail.

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