Mamatta v Minister for Immigration, Citizenship, Migrant Services and... [2022] FCA 637 | Case summary

LOGAN J: 1 Mr Ila Junior Mamatta is a citizen of the Independent State of Papua New Guinea. He entered Australia lawfully with his mother as a ten year old in June 2007. He undertook the balance of his primary education and the whole of his secondary education here. Thereafter, he completed in Queensland an Associate Degree in Civil Engineering, provided via a Technical and Further Education College. He then embarked upon an English language course to enable him to apply for a degree level course in civil engineering at either the University of Queensland or the Queensland University of Technology. For this purpose, he held a Class TU Subclass 500 Student visa, issued under the Migration Act 1958 (Cth) (the Act). 2 Mr Mamatta's interest in completing this degree level course in engineering was so that he could join his father's engineering business, which is based in Papua New Guinea. Although based there, his father also has business interests in Australia. 3 Mr Mamatta's student visa was cancelled pursuant to s 501(3A) of the Act by a delegate of a Minister responsible for the administration of the Act on 19 November 2020 (Minister). Earlier that month, on 2 November 2020, Mr Mamatta had been convicted by the District Court at Brisbane, upon his plea of guilty, of an offence described as "choking suffocation strangulation domestic relationship - domestic violence offence". In respect of this offence, he was sentenced to a term of imprisonment of two years and six months, to be suspended for three years after having served six months. At the same time, also upon a plea of guilty, he was convicted of four counts of "assaults occasioning bodily harm - domestic violence offence". In respect of these offences he received a term of imprisonment of eighteen months for each count, to be suspended for three years after having served six months, with all four sentences to be served concurrently. 4 It has never been controversial that Mr Mamatta's sentencing history provided a basis upon which the Minister or a delegate might be satisfied that he did not pass the character test for which s 501 of the Act provides, because he had a "substantial criminal record", as defined by that section. Upon such satisfaction, cancellation of his student visa was obligatory: s 501(3A) of the Act. 5 Following the cancellation of his student visa, Mr Mamatta was invited by the Minister to, and did, make a representation in respect of the revocation of the cancellation of that visa. On 22 July 2021, a delegate of the Minister decided, pursuant to s 501CA(4) of the Act, not to revoke the cancellation of Mr Mamatta's student visa. By that stage, had it not been earlier cancelled, Mr Mamatta's student visa would have expired by effluxion of time on 25 June 2021. The student visa was never one which granted a right of permanent residence, only a right to remain in Australia until a particular date, subject to adherence to particular conditions, notably the pursuit of a course of study as a genuine student. 6 Mr Mamatta sought the review by the Administrative Appeals Tribunal (Tribunal) of the decision of the Minister's delegate not to revoke the cancellation of the student visa. On 3 January 2022 the Tribunal (Senior Member Pola) decided to affirm that decision: Mamatta and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 1 (Reasons). 7 Mr Mamatta has now applied for the judicial review of the Tribunal's decision under s 476A of the Act on the basis of alleged jurisdictional errors. As amended, the grounds of review are as follows: 1. The Tribunal constructively failed to exercise jurisdiction by failing to conduct a review for the purposes of s 500 of the Migration Act 1958 (Cth) (Act). Particulars (a) At the time of the Decision (3 January 2022): i. the Applicant was held (and he remains held) in immigration detention; ii. the Applicant did not hold (and he continues not to hold) any visa; and iii. the end date of the term of the student visa that the Applicant had previously held had passed, such that, even if the Tribunal had decided to revoke the Decision, the Applicant would have remained in immigration detention and without a visa. (b) In reviewing the decision of the delegate of the Minister under s 501CA(4) of the Act not to revoke a decision to cancel a visa, the Tribunal was required, pursuant to s 499 of the Act, to comply with Direction No. 90 in exercising its review powers. (c) In Direction No. 90: i. paragraph 1 in section 9 requires the Tribunal to take into account "other considerations" where relevant; ii. paragraph 3 in Schedule 1 of Annexure A states that "there are some circumstances in which it may not be appropriate for a decision-maker to consider whether a person does not pass the character test (and is therefore liable for the cancellation of his or her visa)"; and iii. sub-paragraph 3(a) & 3(b) (in Schedule 1 of Annexure A) provides two examples of such circumstances. (e) On a proper construction, the term "some circumstances" in paragraph 3 in Schedule 1 of Annexure A to Direction No. 90: i. is not limited to circumstances of the kind in sub-paragraph 3(a) & 3(b); and ii. includes circumstances in which an applicant is in a position such as that of the Applicant referred to in (a) above. (f) In the Decision, the Tribunal: i. erroneously construed the term "some circumstances" as being limited to circumstances of the kind in sub-paragraph 3(a) & 3(b); ii. refused and failed to consider whether, by reason of the matters in (a) above, it may not appropriate for the Tribunal to consider whether the Applicant passed the character test; and iii. in the premise of (i) and (ii), failed to take into account "other considerations" for the purpose of section 9 in Direction No. 90. (g) When considering the protection of the Australian community and the risk of the applicant engaging in the same type of criminal or serious conduct, the Tribunal failed to consider the objective circumstances present in the evidence in that the applicant's visa had expired and he would be detained or continue to be detained in Australia or removed. 2. The Tribunal erred by finding that the applicant's ability to apply for a visa in future was not a relevant consideration when it was a significant and substantial submission worthy of consideration. 8 The Tribunal filed a submitting appearance. Given that a sequel to the application, if successful, would be an order requiring a reconsideration by the Tribunal of the application for the review on the merits of the decision not to revoke cancellation, this was an appropriate stance for the Tribunal to take: R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13. The submitting appearance was not filed until the day before the hearing. It is not clear whether that was because of late service of the originating application or inattention by those acting for the Tribunal. Whatever may be the position, the proceeding thus offers a useful opportunity to remind the profession that, although the Tribunal is a necessary party and might be expected almost invariably to file a submitting appearance, it is still necessary to serve the Tribunal, and that service to be proved or an appearance entered in a timely way prior to the hearing. 9 Given the grounds of review pleaded and, even more so, in light of exchanges with counsel in the course of submissions concerning those grounds at the hearing, it is necessary to commence consideration of them by reference to some features of the review jurisdiction which fell to the Tribunal to exercise. 10 Section 500(1)(ba) of the Act confers on the Tribunal jurisdiction to hear and determine applications for the review of decisions of a delegate of the Minister under s 501CA(4) not to revoke a decision to cancel a visa. The requisite jurisdiction having been so conferred, the type of review required to be undertaken is ordained by s 43(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). That provides that: For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision. 11 The origins of the type of review for which s 43 of the AAT Act provides may be traced to the advice of the Judicial Committee of the Privy Council in Shell Co of Australia Ltd v Federal Commissioner of Taxation (1930) 44 CLR 530 (Shell Co). The Judicial Committee, at 544 - 545, upheld the constitutional propriety of the then Taxation Board of Review, observing that the Board was in the nature of administrative machinery and that it was not exercising judicial power but, rather, merely in the same position as, in that instance, the Commissioner himself. 12 The concept of a Tribunal at a later stage in public administration exercising powers in place of an earlier administrative decision-maker and being invested with all of the powers and discretions of that decision-maker was taken up in s 43 of the AAT Act. Referring to s 43 of the AAT Act and Shell Co, in Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 (Drake), Bowen CJ and Deane J stated, at 419: The question for the determination of the Tribunal is not whether the decision which the decision maker made was the correct or preferable one on the material before him. The question for determination of the Tribunal is whether that decision was the correct or preferable one on the material before the Tribunal. 13 In turn, in Shi v Migration Agents Registration Authority (2008) 235 CLR 286 (Shi), the view expressed in Drake as to the nature of the jurisdiction exercised by the Tribunal was endorsed in the High Court (and affirmed, latterly, in the joint judgment in Minister for Immigration and Border Protection v Makasa (2021) 270 CLR 430, at [50]). 14 Shi is also important in the resolution in this application for the observations made by Kiefel J (as her Honour then was) about the need to identify with precision, by reference to the statute concerned, the particular decision which falls for review by the Tribunal in a given case. The authority of these observations is not diminished by her Honour's dissent on a subsidiary issue in that appeal. Her Honour stated, at [132] - [134]: 132. The nature of the review conducted by the Tribunal depends upon the terms of the statute conferring the right, rather than upon the identification of it as an administrative authority entrusted with a particular type of function. The jurisdiction of the Tribunal, a statutory tribunal, depends upon there having been a decision made which it is authorised to review. Section 25 of the AAT Act, together with s 306 of the Migration Act, provides that authority with respect to a decision under s 303(1) of the Migration Act. Section 25(4) of the AAT Act limits the Tribunal's powers to a review of that decision. 133. Section 43(1) of the AAT Act provides for the powers that the Tribunal may exercise with respect to matters in respect of which it has jurisdiction. The exercise of the powers conferred by the sub-section is restricted to the Tribunal's purpose, of reviewing the decision in question. As Sheppard J said in Secretary to the Department of Social Security v Riley, it is not possible to apply s 43(1) to the facts of any case without determining, first of all, what is the decision under review. It may therefore be appreciated that the decision, and the statutory question it answers, should be identified with some precision, for it marks the boundaries of the review. 134. Section 43(1) expresses clearly that the Tribunal may exercise all of the powers and discretions conferred upon the original decision-maker. The Tribunal has been said to stand in the shoes of the original decision-maker, for the purpose of its review. In Minister for Immigration and Ethnic Affairs v Pochi Smithers J said that, in reaching a decision on review of a decision of the original decision-maker, the Tribunal should consider itself as though it were performing the function of that administrator in accordance with the law as it applied to that person. In Liedig v Federal Commissioner of Taxation, Hill J adopted, as applicable to the Tribunal, what Kitto J said of the Taxation Board of Review in Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation, namely that its function is "merely to do over again … what the Commissioner did in making the assessment", within the limits of the taxpayer's objection. [Footnote references omitted, emphasis added] 15 The boundaries of the review conducted by the Tribunal, and the powers which it may exercise, are dictated by the particular decision under review and the powers conferred by the statute concerned on the administrator who made the decision under review. The power which the Minister's delegate had exercised, and which it fell to the Tribunal to exercise in his place, was that conferred by s 501CA(4) of the Act, which provides: (4) The Minister may revoke the original decision if: (a) the person makes representations in accordance with the invitation; and (b) the Minister is satisfied: (i) that the person passes the character test (as defined by section 501); or (ii) that there is another reason why the original decision should be revoked. 16 The "original decision" for the purposes of s 501CA(4) of the Act, was, in this case, the decision of the earlier delegate of the Minister to cancel the student visa. As already noted, the visa which was cancelled was one which was always conferred a right of residence of finite duration and for a defined purpose. 17 Another presently important feature of the review which it fell to the Tribunal to conduct was that the Tribunal was obliged to make its decision on the material before it at that stage, unless the Act dictated otherwise. Such a point had been made in Drake, as the passage quoted above from the joint judgment of Bowen CJ and Deane J indicates. It was reiterated by Hayne and Heydon JJ in their joint judgment in Shi, at [99]. 18 There was nothing either in s 501CA or elsewhere in the Act which confined the original decision-maker to material in existence as at the time of the original cancellation decision, or which confined the Tribunal either to material in existence at that time or at the time when the Minister or her delegate decided not to revoke the original cancellation decision. Thus, the Tribunal was not only obliged to decide afresh whether to revoke the cancellation of the student visa but also to do so by reference to the material before it at the time when it made its decision. 19 Yet further, the Tribunal was part of an administration decision-making continuum: see AAL19 v Minister for Home Affairs (2020) 277 FCR 393, at [24], and the cases there cited. That continuum included the fact that, by the time the Tribunal came to make its decision, Mr Mamatta's student visa would have expired in any event and the contents of the representations made by Mr Mamatta, from his original representation in response to the post-visa cancellation invitation to his closing submission to the Tribunal, as to why the cancellation of that visa should be revoked. 20 It was common ground between the parties that the ability lawfully to revoke the cancellation of a visa did not expire with the expiry of what would otherwise have been the duration of the term of the visa. This also appears to me to be a correct understanding of the meaning and effect of the Act. 21 One basis upon which a visa cancellation decision might be revoked, and the only basis in the circumstances of the present case, was satisfaction that there was "another reason" why that original cancellation decision should be revoked. The expiry of the student visa would not have robbed the revocation of the cancellation decision of efficacy. At the time when the Tribunal heard and determined the review application, Mr Mamatta was in the "migration zone" (as defined by s 5 of the Act), because he was then in Australia, albeit in immigration detention. Unless and until the cancellation of his student visa was revoked, he was prohibited, while in the migration zone, from applying for a wide range of visas, including a partner visa. That was the effect of s 501E(1) of the Act, which provides: Refusal or cancellation of visa - prohibition on applying for other visas (1) A person is not allowed to make an application for a visa, or have an application for a visa made on the person's behalf, at a particular time (the application time) that occurs during a period throughout which the person is in the migration zone if: (a) at an earlier time during that period, the Minister made a decision under section 501, 501A, 501B or 501BA to refuse to grant a visa to the person or to cancel a visa that has been granted to the person; and (b) the decision was neither set aside nor revoked before the application time. 22 There are exceptions to the prohibition for which s 501E(1) provides, notably in relation to a protection visa, but there was never any question that Mr Mamatta might be eligible for any of these exceptional types of visa. 23 Another consequence of non-revocation of the original cancellation decision was to inhibit Mr Mamatta's ability, after removal from Australia, successfully to apply for a visa. That is because the non-revocation of the cancellation of his student visa would mean that he would be unable to satisfy any visa subject to the special return criterion for which cl 5001(c) of sch 5 to the Migration Regulations 1994 (Cth) (Regulation) provides: 5001 The applicant is not: … (c) 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; The effect of s 65(1)(b) of the Act is that the Minister or a delegate is obliged to refuse to grant a visa to a person if satisfied that they do not meet a visa criterion. 24 Thus, both directly in the Act itself, and by prescription under the Act in the Regulation, it is contemplated that the cancellation under s 501 of the Act of a visa has, and continues to have, more than an immediate effect of rendering a person an unlawful non-citizen. Further, there is nothing in the Act to indicate that these ongoing effects of such a cancellation of a visa cease when that visa would have expired by effluxion of time in any event. The text of s 501CA(4)(b)(ii) of the Act, in "another reason" is sufficiently broad to encompass a removal of such inhibitions as sufficient to supply a reason for revocation of an original cancellation decision. That textually based conclusion is supported by high authority, identified below. The provision also is not qualified by any explicit requirement that the visa concerned, at the time of the revocation decision, not be one which would in any event have expired by effluxion of time. There is nothing in the subject matter, scope and purpose of the power, read in the context of the Act, to regard such a qualification as implicit. Rather, the text of the prohibition for which s 501E(1) provides, which contains no such qualification, indicates otherwise. 25 The Tribunal made a detailed assessment of the material before it, including by reference to the oral evidence given at the hearing it conducted. All of that material was assessed and findings were made by the Tribunal through the prism of Direction No. 90 "Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA" made by the Minister under s 499 of the Act (the Direction). It will be necessary to consider in further detail later in these reasons for judgment the ramifications of so viewing that material. 26 It is not necessary, in order to address the grounds of review, to rehearse at length the Tribunal's assessment, only to note some features of that material and related findings made by the Tribunal. 27 The Tribunal regarded the Mr Mamatta's overall offending conduct as described as very serious, especially the domestic violence offending conduct. The Tribunal found that this weighed heavily in favour of non-revocation (Reasons, at [175]). Undoubtedly, this was a conclusion the Tribunal was entitled to reach on the material before it. 28 Although the Tribunal accepted that Mr Mamatta's risk of reoffending was low, the Tribunal added (Reasons, at [140]): 140. Even though the assessed risk of the Applicant's likelihood of reoffending is considered low, the Tribunal is of the view that this risk is not far-fetched or fanciful, rather it is material, particularly given the significant harm the Applicant has demonstrated he can cause. 29 The evidence before the Tribunal included a statement from Mr Mamatta's Australian citizen partner (Ms LD) attesting to the genuineness of their relationship and to his role as a father figure for her two young children from a previous relationship and to their plans for his completion of his degree and for a shared future in Australia. The Tribunal accepted that they had a strong relationship and future plans together, but was "somewhat cautious" as to its mutual intensity and commitment, having regard to differences in evidence between Mr Mamatta and Ms LD as to when he had proposed marriage to her (Reasons, at [250] - [253]). 30 The Tribunal also found that, in relation to Ms LD's minor children that the duration of Mr Mamatta's relationship with them had been impacted by his long physical absence from their lives as a result of his incarceration and detention and the fact that parenting responsibilities for them were, by agreement, shared between Ms LD and her former partner, the children's biological father. Nonetheless, the Tribunal accepted that Mr Mamatta's inability to be a physical presence in their lives, as a result of separation occasioned by his removal from Australia, was a factor which operated moderately in favour of revocation. 31 Mr Mamatta's mother (strictly, as the Tribunal found, his adopted mother) was a long term resident of Australia, having cared for him throughout his schooling here. The Tribunal found (Reasons, at [259]) that, should Mr Mamatta no longer permitted to remain in Australia, "she would indeed suffer emotionally, and would not receive support from [him] as he has provided to her in the past". This was identified as a factor telling in favour of revocation. 32 On balance, the Tribunal considered that these various considerations led to an absence of satisfaction that there was "another reason" to revoke the original visa cancellation decision. 33 The Tribunal made explicit in its reasons (at [5]) that Mr Mamatta's student visa had expired on 25 June 2021. 34 It is clear to the point of demonstration that those who acted for Mr Mamatta before the Tribunal were acutely aware, and made it their business to ensure on his behalf that the Tribunal was by submission also made aware, of the type of visa which had been cancelled, of its otherwise limited duration and of the ramifications of this and of his detention in terms of risk assessment, as well as the ongoing effects which non-revocation of the cancellation of that visa bought with it. Read in conjunction, the statement of facts issues and contentions (SFIC) and the reply submission, each as settled by Mr Boccabella of Counsel, who appeared for Mr Mamatta before the Tribunal, on the instructions of his present solicitors, expressly raised as issues for consideration that: (a) the assessment of the risk present by the non-revocation of his student visa fell for consideration in the context of a visa of limited duration which would in any event have expired by effluxion of time by the time of the Tribunal hearing (SFIC, at [19]); (b) effectively, the case was about (i) whether Mr Mamatta should be allowed to apply before removal from Australia for another visa, with the two under consideration being another student visa or a partner visa (SFIC, at [20]), with particular emphasis being given to the intention to seek a partner visa so as to marry an Australian citizen partner in October 2022 (closing submission in reply, at [48]); (ii) whether, after removal, he should, effectively, he barred from ever again receiving a visa to enter Australia, by virtue of special return criterion cl 5001(c) of sch 5 to the Regulations (SFIC, at [15] and [16]); (c) risk to the Australian community would fall for consideration by the Minister or a delegate in the context of consideration of any visa application either as proposed or otherwise (reference being made to the public interest criterion in cl 4001 of sch 4 to the Regulation concerning the character test); (d) the Direction did not operate as a "straightjacket" and fell for consideration and application in the context of the decision under review, which related to a visa of short term duration (the whole of the SFIC); (e) As to risk, Mr Mamatta would not be released into the Australian community as a result of the Tribunal revoking the visa cancellation, as he was an unlawful non-citizen and would remain in detention under s 198 of the Act (closing submission in reply, at [12]). 35 There can be no doubt that the Tribunal referred to the submission made by Mr Boccabella on behalf of Mr Mamatta. The Tribunal stated (Reasons, at [20]) that the closing submissions went: … into a great level of detail regarding the consequences which flow from an adverse decision taken with respect to s 501CA(4) of the Act and the various restrictions on the Applicant in applying for a future visa, particularly with respect to clauses 4001 and 5001 of the Regulation. [emphasis in original] 36 Although the Tribunal referred to the submission made on behalf of Mr Mamatta, it regarded that submission as irrelevant to the discharge of its statutory function. The Tribunal stated (at [21]): 21. The Tribunal is of the view that the Applicant's ability to apply for another visa at some point in the future is not a relevant consideration for the Tribunal in the discharge of its statutory duty in reviewing the decision of the delegate of the Minister, who, on 22 July 2021, decided not to revoke the mandatory Visa Cancellation Decision, pursuant to section 501CA(4) of the Migration Act. [Emphasis in original, citations removed] The emphasis in this paragraph of the Tribunal's reasons was intended to underscore a like emphasis in respect of future visa applications in the preceding paragraph of the Tribunal's reasons. 37 The Tribunal considered that this consequence as to irrelevance followed from statements made by Flick J and by Snaden J in their respective judgments in DLJ18 v Minister for Home Affairs (2019) 273 FCR 66 (DLJ18). 38 Before turning to DJL18, it is desirable first to refer to observations made in the High Court in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane (2021) 96 ALJR 13 (Viane) concerning s 501CA(4) of the Act and, in particular, what must be considered in the exercise of the discretionary power conferred by that subsection and what may, permissibly, engender satisfaction that there is "another reason" why, in the exercise of the power conferred by that subsection, the cancellation of a given visa should be revoked. 39 Importantly for present purposes, the High Court observed in Viane, at [13], of the scheme found in s 501CA of the Act that, "That scheme necessarily requires the Minister to consider and understand the representations received." The High Court also emphasised the breadth of what might constitute "another reason", adding, at [13], "It follows that there may be few mandatorily relevant matters that the Minister must consider in applying s 501CA(4)(b)(ii)." This was reiterated, at [15], where the Court stated: The breadth of the power conferred by s 501CA of the Act renders it impossible, nor is it desirable, to formulate absolute rules about how the Minister might or might not be satisfied about a reason for revocation. 40 That there is an obligation to consider the representations made by an applicant for revocation also underpins further observations made by the High Court in Viane as to what was entailed in the exercise of the power conferred by s 501CA(4) of the Act. The Court stated, at [14]: Based upon the representations made by an applicant, the cancellation decision and the "relevant information" given to the applicant pursuant to s 501CA(3)(a), the Minister must, when the Minister is not satisfied that an applicant passes the character test, then determine relevantly whether to be satisfied that there is "another reason" why the cancellation decision should be revoked. [Emphasis added] In the footnote (footnote 13) appended to this sentence, the Court recognised that, for a delegate of the Minister, or the Tribunal sitting in place of that delegate, a mandatory relevant consideration for the exercise of the revocation power could be found in a direction made by the Minster pursuant to s 499 of the Act. Recognition of a need to address the representations made by an applicant is also evident in these observations, at [15], in Viane: If the representations made lack any substance altogether, then this of itself might justify a decision not to be satisfied that "another reason" exists to revoke the cancellation decision, without any need to make any findings of fact about the various claims made. Moreover, some of the topics that might be traversed might not lend themselves to be addressed by way of evidence. They may involve matters of judgment, especially when weighing factors for and against revocation. [Emphasis added] 41 The Tribunal's attention was expressly drawn to Viane, and what was said to be its impact on DLJ18, by Mr Boccabella in his closing submission (at [38]). He submitted that DLJ18 had, "to a large extent" been overtaken by what was said in Viane. The Tribunal made no reference whatsoever to Viane, not even to address whether, in the circumstances, the statements made by the High Court in that case did indeed "overtake" anything that was said in DLJ18. 42 At least in the circumstances of the present case, the submission made to the Tribunal concerning the effect of Viane was correct. 43 In DLJ18, disparate statements were made by the members of the Full Court in relation to whether the Minister, her delegate or the Tribunal in place of such a delegate, was obliged to take into account legal consequences for which s 501E and cl 5001(c) in sch 5 of the Regulation provides, irrespective of whether they featured in the representations made by an applicant for revocation. Referring to NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1, at [6] - [9], per Allsop CJ and Katzmann J and to Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, at 39 - 40, per Mason J and expressing disagreement with some of the reasoning of Jessup J in Tanielu v Minister for Immigration and Border Protection (2014) 226 FCR 154 (Tanielu), Flick J considered that "most probably" what was obligatory to take into account was (DLJ18, at [15]): … confined to those 'consequences' expressly or implicitly imposed by the Migration Act itself; the 'consequences' imposed by the Migration Regulations (including cl 5001(c) of Sch 5) would most probably fall outside of those matters which must necessarily be taken into account. 44 In contrast, and with particular reference to the impact of cl 5001(c) of sch 5 of the Regulation, Bromberg J held that, at [28]: Considered through the prism of the subject-matter, scope and purpose of the Migration Act and, bearing in mind that the legal consequence in question flows directly from regulations made to give effect to that Act, the consequence for a person the subject of a non-revocation decision that he or she would be precluded from returning to Australia is, in my view, clearly within the ambit of the statutory framework that the maker of a non-revocation decision has to have regard to. 45 In reaching this conclusion, his Honour also expressed disagreement with the reasoning in Tanielu. The remaining member of the Full Court, Snaden J, considered that Tanielu had been correctly decided such that it was not obligatory to take into account the effect of cl 5001(c) of sch 5 of the Regulation. His Honour stated (at [86]) that there is: … nothing about the subject matter, scope and purpose of the Act that requires, by implication, that the valid exercise of power under s 501CA(4) be conditioned upon consideration of the legal consequences that arise remotely, theoretically or contingently therefrom (assuming that such consequences might fairly be described as 'consequences' at all). 46 It will be apparent that the views expressed in DLJ18 truly are disparate. 47 The point made on behalf of Mr Mamatta in the Tribunal, and repeated by Ms Costello QC, who appeared on his behalf on the judicial review application, was that, whatever was the true position in relation to the nature and extent of an obligation to take into account legal consequences when exercising the discretion conferred by s 501CA(4) of the Act, the Minister, a delegate of the Minister, or the Tribunal in place of such a delegate were each obliged, as stated in Viane, to take into account the representations made by an applicant for revocation. Having regard to the observations in Viane which I have highlighted, this must follow. Ms Costello was astute to eschew any submission that, had Mr Mamatta's submission not been cast in the form it was, the obligation would have arisen in any event. It is therefore unnecessary, in the circumstances of the present case, to determine which of the disparate views expressed in DLJ18 as to which legal consequences s 501CA(4) makes relevant is correct. 48 Another reason why it may be unnecessary in any event to determine which of the disparate views expressed in DLJ18 is correct is that the views expressed in that case have latterly been overtaken by an express statement made by Kiefel CJ, Keane, Gordon and Steward JJ in their Honours' joint judgment in Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 (Plaintiff M1/2021), at [11]: 11 Several consequences flow from the cancellation of a visa under s 501(3A). First, unless the cancellation decision is set aside or revoked, the former visa holder cannot apply for another visa except a protection visa or a visa specified in the Migration Regulations 1994 (Cth). In other words, it remains open to a person whose visa has been cancelled under s 501(3A) (which is not a protection visa) to apply for a protection visa. If, however, the visa cancelled under s 501(3A) was a protection visa, s 48A relevantly provides that the former visa holder "may not make a further application for a protection visa while in the migration zone". The Minister does, however, retain a personal power to determine that s 48A does not apply to a non-citizen. [Footnote references omitted, save for the footnote to the first sentence; emphasis added] In the footnote (footnote 8) to the first sentence, their Honours state, "Migration Act, s 501E(1) and (2). At the relevant time, the only visa specified in the Migration Regulations was a Bridging R (Class WR) visa: Migration Regulations, reg 2.12AA". 49 DLJ18 is not mentioned in the joint judgment. However, given that the effect of revocation is to remove these consequences of cancellation, it might be thought that, at the very least, the statements just quoted from the joint judgment in Plaintiff M1/2021 dictate a conclusion that the impact of s 501E on Mr Mamatta, as a consequence of the cancellation of his student visa, was a mandatory relevant consideration. The impact on an off shore visa application, if made, of the special visa criterion found in cl 5001(c) of sch 5 of the Regulation was not expressly instanced in Plaintiff M1/2021. 50 Also flowing from Viane, and reinforced in Plaintiff M1/2021, such is the breadth of what may permissibly constitute "another reason" for the purposes of s 501CA(4) of the Act, that acceptance of the submission made on behalf of Mr Mamatta might permissibly have supplied such a reason. And as was stated in the joint judgment in Plaintiff M1/2021, at [22]: In determining whether they are satisfied that there is 'another reason' for revoking a cancellation decision, the decision-maker undertakes the assessment by reference to the case made by the former visa holder by their representations. 51 Plaintiff M1/2021 is also presently pertinent for the definitive pronouncement in the joint judgment as to what is entailed in the consideration, for the purposes of exercising the power conferred by s 501CA(4) of the Act, of representations made by a former visa holder. Their Honours stated, at [23] - [27]: 23 It is, however, improbable that Parliament intended for that broad discretionary power to be restricted or confined by requiring the decision-maker to treat every statement within representations made by a former visa holder as a mandatory relevant consideration. But the decision-maker cannot ignore the representations. The question remains how the representations are to be considered. 24 Consistently with well-established authority in different statutory contexts, there can be no doubt that a decision-maker must read, identify, understand and evaluate the representations. Adopting and adapting what Kiefel J (as her Honour then was) said in Tickner v Chapman, the decision-maker must have regard to what is said in 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. The weight to be afforded to the representations is a matter for the decision-maker. And the decision-maker is not obliged "to make actual findings of fact as an adjudication of all material claims" made by a former visa holder. 25 It is also well-established that the requisite level of engagement by the decision-maker with the representations must occur within the bounds of rationality and reasonableness. What is necessary to comply with the statutory requirement for a valid exercise of power will necessarily depend on the nature, form and content of the representations. The requisite level of engagement - the degree of effort needed by the decision-maker - will vary, among other things, according to the length, clarity and degree of relevance of the representations. The decision-maker is not required to consider claims that are not clearly articulated or which do not clearly arise on the materials before them. 26 Labels like "active intellectual process" and "proper, genuine and realistic consideration" must be understood in their proper context. These formulas have the danger of creating "a kind of general warrant, invoking language of indefinite and subjective application, in which the procedural and substantive merits of any [decision-maker's] decision can be scrutinised". That is not the correct approach. As Mason J stated in Minister for Aboriginal Affairs v Peko-Wallsend Ltd, "[t]he limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind". The court does not substitute its decision for that of an administrative decision-maker. 27 None of the preceding analysis detracts from, or is inconsistent with, established principle that, for example, if review of a decision-maker's reasons discloses that the decision-maker ignored, overlooked or misunderstood relevant facts or materials or a substantial and clearly articulated argument; misunderstood the applicable law; or misunderstood the case being made by the former visa holder, that may give rise to jurisdictional error. [Footnote references omitted] 52 In the present case, and unlike in DLJ18, the consequences of non-revocation were at the very forefront of the submission made on behalf of Mr Mamatta. Adjacent to them were two related propositions. One was that, in relation to the subject of risk, he presented no risk, given that he would, necessarily, remain in immigration detention even if the cancellation of his student visa were revoked, because the time limit of that visa had expired, rendering him an unlawful non-citizen (a status that followed as a matter of law in the absence of a visa - s 14(1) of the Act). As a non-citizen, he was required to be detained (s 189 of the Act), pending his obligatory removal from Australia (s 198(1) of the Act). Related to that, the other proposition was that, because he presented no present risk, as revocation of cancellation could not have the consequence of his being released from immigration detention and returned into the community, and because while still in the migration zone he wished to apply for a partner visa, the assessment of the risk he presented in granted such a visa should be left to the Minister or a delegate in considering such a visa application. 53 It was also put that, even if he were removed from Australia to Papua New Guinea, in which case also he would present no ongoing risk in Australia, he should not, in effect, be banished, by refusing to revoke cancellation and thus visiting upon him the special visa criterion found in cl 5001(c). In this regard also it was put that a decision whether to grant him a visa in the future should be left to the Minister or her delegate at the time when he applied for a visa. 54 The submission made to the Tribunal was, in effect, that the cancellation of the student visa should be revoked, not because that would have the direct consequence of allowing him to remain in Australia, because it could not but rather so as to allow him to apply on the merits for another visa either before he departed or after a return to Papua New Guinea. In the meantime, his submission was that, given his lawful and ongoing immigration detention, pending removal, he presented no risk to the wider Australia community. This, he put, was different to the usual case covered by the Direction. 55 None of this was accepted or even addressed by the Tribunal, as the following excerpt (Reasons, at [24]) discloses: 24. The Applicant further contended in closing submissions that, "... [The Applicant's Class TU Subclass 500 Student visa] visa expired on 25 June 2021. It no longer exists. Direction No 90 was NOT designed or written around situations like that in the present case, it does not address situations where the relevant visa has expired...". The Tribunal rejects this contention of the Applicant and refers to Annex A, section 1, paragraph 3, 'Mandatory visa cancellation', within the Direction which states: ... The purpose of mandatory cancellation of the visas of certain visa holders who are in prison is to ensure that persons who pose a risk to the safety of the Australian community remain either in criminal or immigration detention until that risk has been assessed. In this context, there are some circumstances in which it may not be appropriate for a decision-maker to consider whether a person does not pass the character test (and is therefore liable for the cancellation of his or her visa). These circumstances include where a non-citizen is serving a sentence of imprisonment but will not have a visa which is in effect at the end of that sentence... [Emphasis by Tribunal, footnote references omitted] 56 As a matter of ordinary English comprehension, to say nothing of the basal requirement, emphasised by Kiefel J in Shi, to identify with precision the decision under review, and with the very greatest of respect to the Tribunal, it should have been immediately apparent that the particular passage quoted from the Direction had nothing whatsoever to do with the review function required to be undertaken in the present case. The Tribunal was not reviewing a decision that had "mandatorily cancelled" Mr Mamatta's visa. That was the "original decision", made not under s 501CA(4) but rather under s 501(3A) of the Act. The Tribunal was reviewing a decision to refuse to revoke that cancellation. 57 A necessary corollary of this conclusion is that I also do not accept the construction of this part of Annex A to the Direction, as particularised at paragraph (c) under the first ground of review and related submissions made on behalf of Mr Mamatta. 58 This part of Annex A to the Direction was concerned to give guidance as to when circumstances might arise when it would be appropriate for a decision-maker not to consider whether a person does not pass the character test. The identified circumstances included where a non-citizen is serving a sentence of imprisonment but will not have a visa which is in effect at the end of that sentence. Presumably, the Minister's view was that, in such circumstances, visa cancellation would be unnecessary, as the person would still be in prison (and thus no risk to the Australian community at large) when they became a non-citizen and then, as a non-citizen, be held in immigration detention (and thus continue to be no risk to the Australian community at large) at the expiration of their imprisonment and pending their removal from Australia. The Minister's rationale is that, as the obligation to cancel is triggered by a state of administrative satisfaction, a way of not triggering that obligation is not to consider whether, in a case as described by the Minister, the material concerning a visa holder gave rise to the requisite satisfaction. Indeed, the whole of Annex A to the Direction is unconcerned with the revocation of cancellation. It is directed to decisions entailing discretionary or mandatory cancellation of a visa or to the refusal to grant a visa. 59 In contrast, one obligation of the Tribunal in the present case, in reviewing the decision not to revoke cancellation, was to consider the very subject which in Annex A to the Direction, the Minister indicated might, in the different context of a cancellation decision, be deferred; namely, whether it was satisfied that Mr Mamatta passed the character test (as defined, by s 501): s 501CA(4)(b)(i) of the Act. As already noted, the answer to that was never controversial. The other subject which the Act then obliged the Tribunal (in place of the delegate) to consider was whether there is another reason why the original cancellation decision should be revoked: s 501CA(4)(b)(ii) of the Act. The Tribunal, deliberately, failed to address what Mr Mamatta had put as "another reason". 60 It is true, as was submitted for Mr Mamatta, that the Minister's specification, in paragraph 9 of the Direction, of "Other Considerations" which must be taken into account in, materially, making a decision under s 501CA of the Act, is expressed in an inclusive way. This, however, adds nothing to his more fundamental submission that the Tribunal was obliged to, but did not, address the representations which he made, which were, as the authorities discussed above confirm, capable of constituting "another reason". At most, the Minister's allowance in paragraph 9 of the Direction, that his specification of "Other Considerations" is not exhaustive, removes any tension between that direction and the requirement, flowing from the scheme in s 501CA of the Act itself, that the representations made by an applicant for revocation be addressed. 61 It follows that the present is a paradigm example of the Tribunal misunderstanding, and failing to deal with, the case as presented to it: Dranichnikov v Minister for Immigration and Multicultural & Indigenous Affairs (2003) 77 ALJR 1088 (Dranichnikov), at [23] - [24] per Gummow and Callinan JJ, Hayne J agreeing. One way in which such an error might be classified, as their Honours indicate, is as a failure to afford Mr Mamatta natural justice. Another, as their Honours also indicate, Dranichnikov, at [32], is a failure to exercise the jurisdiction consigned to it. In Dranichnikov the latter characterisation of error commended itself, at [75], to Kirby J, who concluded that the Tribunal had "misdirected itself in such a fundamental way" by misunderstanding the case put to it. Contrary to the Minister's submission, the Tribunal did not, in [21] of its reasons (quoted above) and in the reference to DLJ18 implicitly consider and reject the case Mr Mamatta had put. Rather, the Tribunal completely misunderstood that it was obliged to consider the representation which had been made about why there existed "another reason" to revoke the cancellation of the student visa. 62 As Dranichnikov itself discloses, it is not sufficient that there be exposed errors of these kinds. The further question is whether the making of these errors might have made a difference, whether they were material? A succession of more recently decided High Court cases, which may be traced from Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 (Hossain), via Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 to MZAPC v Minister for Immigration and Border Protection (2021) 95 ALJR 441 (MZAPC), confirms that it is a necessary element of the proof by an applicant of jurisdictional error on the part of a person exercising statutory decision-making authority that the error concerned be shown to be material. As was stated in MZAPC, at [2], this requires that an applicant prove, on the balance of probabilities, "a realistic possibility that the decision in fact made could have been different had the breach of the condition not occurred". 63 Although the Minister joined issue with each of the grounds of review, his overarching response to the allegations of jurisdictional error was that, having regard to the ultimate conclusion reached by the Tribunal, Mr Mamatta could not demonstrate that any error made by the Tribunal was material. 64 As a matter of initial impression, the Minister's submission finds some support in each of the judgments delivered in DLJ18. DLJ18 was decided after Hossain and the ramifications of that case in relation to proof of materiality as a necessary element in the proof of jurisdictional error were taken into account by each member of the Full Court. Disparate though their Honours' views were in relation to which legal consequences, if any, were made a mandatory relevant consideration, and whether such a consideration had been taken into account by the Tribunal, having regard to the reasons of the Tribunal, each of their Honours concluded that, in light of the analysis of the material before it by the Tribunal, and the conclusion that this did not yield satisfaction that there was another reason why the cancellation of the visa should be revoked, any error as to consideration of consequences was not material. That was because the same decision would have been made in any event, had those consequences been considered. 65 By parity of reasoning, the Minister's submission was if, which he denied, there was a comprehensive failure by the Tribunal to consider the case as made by Mr Mamatta as to why the consequences of non-revocation of the original cancellation decision should not be visited upon him, the Tribunal's conclusion in the present case that it was not satisfied that there was another reason to revoke cancellation necessarily carried with it that the consequences of non-revocation should be visited upon him. Hence, so the Minister submitted, any error made by the Tribunal was not material. 66 This submission should not be accepted. 67 The Tribunal has failed, utterly, to confront the necessary consequences, in terms of protection of the community and of community expectations, flowing from the expiry in any event of Mr Mamatta's student visa, even if its cancellation were revoked, and of his necessarily continuing to be in immigration detention, pending the discharge by the Minister of a statutory obligation to remove him. The Tribunal has either misunderstood or misdirected itself as to the precise nature of decision under review, given the finite duration of the visa with which the decision was concerned. It has not conducted a review according to law. The evaluation which the Tribunal made of various factors identified in the Direction, detailed though it was, failed to engage with the case as made by Mr Mamatta. The Tribunal's evaluation and that case were like ships that passed in the night. But the passing here was not merely random. It was the Tribunal's deliberate choice. 68 The evidence which was led on behalf of Mr Mamatta was not to the end that a visa restoring a right of residence in Australia should the cancellation of his student visa be revoked. Mr Mamatta's case proceeded from a given that revocation of the cancellation of his student visa could not possibly restore that residence. His case asked the Tribunal to understand and accept that and then to address whether his overall circumstances, on the material before the Tribunal, were such that he should not even be given a chance, as he wished, to apply for another visa with the risk assessment be determined at that time. He invited the Tribunal to accept that his present circumstances were such that, in fact and by operation of law, he presented no risk at all to the Australian community, because his only possible pathway to lawful resumption of residence in Australia was a successful application for another visa, not revocation of the cancellation of his expired student visa. Because of the mistaken view which the Tribunal adopted of Annex A to the Direction, of not understanding the ramifications of the particular decision under review and not addressing and thus not understanding what was stated by the High Court in Viane as to the breadth of what might constitute "another reason" for revoking cancellation, the Tribunal did not address the material before it, including that evidence, to that end. It is emphatically not for me to determine whether the case as put for Mr Mamatta ought to have engendered satisfaction on the part of the Tribunal. To do that would step outside the proper limits of the judicial review jurisdiction consigned to the Court: Attorney-General (NSW) v Quin (1990) 170 CLR 1, at 35 - 36 per Brennan J. Ms Costello QC made no such solicitation. However, what she did put, and what I accept as correct, is that, had the Tribunal evaluated the case which Mr Mamatta made before it, it was possible in law to, and might (in the sense of being realistically possible) in fact, have led to satisfaction that there was another reason why the cancellation of the student visa should be revoked. 69 It necessarily follows from my acceptance of that proposition that the errors made by the Tribunal were jurisdictional, because the element of materiality has been proved. 70 The Tribunal's decision must, for these reasons, be quashed and a mandamus must issue requiring the Tribunal to hear and determine Mr Mamatta's review application according to law. The Minister must pay Mr Mamatta's costs. I certify that the preceding seventy (70) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Logan.

Mamatta v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

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