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

1. The decision of the Administrative Appeals Tribunal made on 10 July 2020 in relation to the applicant be set aside.
2. The matter be remitted to the Administrative Appeals Tribunal for determination according to law.
3. The first respondent to pay the costs of the applicant: (a) in an amount fixed in the sum of $7,241; and (b) directly to counsel for the applicant in accordance with r 4.19 of the Federal Court Rules 2011 (Cth). Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

LEE J: 1 This is another application for judicial review of a decision of the second respondent (Tribunal) to affirm a decision of a delegate of the first respondent (Minister) not to exercise the power under s 501CA(4) of the Migration Act 1958 (Cth) (Act) to revoke the cancellation of the applicant's visa. It turns entirely upon its own facts and raises no particular point of principle. 2 The short point is whether the Tribunal properly considered the best interests of minor children in Australia for the purposes of cl 13.2 of Direction 79. Direction 79 is a Ministerial direction made pursuant to the Act to guide exercises of power under s 501CA. Pursuant to s 499(2A) of the Act, the Tribunal is required to comply with the terms of Direction 79. I do not propose to rehearse the relevant principles that inform the determination of matters of this type and the way in which jurisdictional error is to be identified. They were, with respect, comprehensively set out most recently in JKPM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1293 (at [36]-[45] per Perry J), although I will say something briefly about one aspect of those principles below. 3 In the course of affirming the decision and dealing with the primary considerations and, in particular, the best interests of minor children in Australia affected by the decision, the Tribunal said, among other things, the following: (a) the lack of any evidence or probative information from anyone capable of casting light on the best interests of the minor children relevant in this matter, leads me to conclude that this factor is not a factor of any great weight in my consideration. (b) the children in Queensland are looked after by his older brother and sister and those in Sydney are looked after by his father and stepmother. Mr Mareiti has no concerns for the welfare of any of his brothers and sisters. (Emphasis added). 4 As the applicant submits, those statements, in particular the sentence which I have emphasised above, must be assessed by reference to the following material, which, it was common ground, was before the Tribunal: (a) the applicant's written statement, included in the Personal Circumstances form completed by the applicant on 26 June 2020, in which the applicant said: I've learnt so much in jail. I know what I done in the past was a mistake and I've got a family out there struggling without a mother and a father. It's time for me to step up to the plate and be a role model for my family. (b) the representation made by the applicant to the Minister, as was noted in the non­revocation decision, that the minor children "will be negatively impacted if his visa cancellation is not revoked"; and (c) the written submissions provided by the applicant to the Tribunal in which he said: (i) The impact regarding the decision to revoke the mandatory cancellation of the applicant's visa is going to be massively felt by the applicant's immediate family members residing in Australia; (ii) The applicant contends he wants to be back with his younger siblings supporting them financially, spiritually and anyway possible because the applicant loves and misses his younger brothers and sisters; (iii) The applicant's siblings are going to experience further hardship suffering psychologically, emotionally and spiritually due to the applicant's deportation. The applicant does have plans reforming better supporting his siblings whilst mother is in prison [sic]. 5 It is important that the remarks of the Tribunal I have referred to above not be considered acontextually. This is not a case where there was any evidence before the Tribunal from any of the siblings, or their carers or guardians, about how their best interests would be affected in connexion with the visa cancellation. As I described during the course of oral submissions, it is fair to say that the material before the Tribunal summarised above might be characterised as being somewhat thin. I have therefore had some pause in considering whether, read fairly and in context, the conclusion should be reached that the Tribunal was cognisant of the applicant's contentions about his minor siblings, and the bolded passage above merely reflected a recounting of what the Tribunal had been told during the course of the applicant's oral evidence before the Tribunal (which has not been reproduced in the Court Book). 6 I am also sensible to the fact that the material before the Tribunal was expressed at a high level of generality and is, at least in part, not directly relevant to the best interests of the children per se, but rather was directed to the applicant's desire to act in a certain way with respect to the minor children. I am also aware that the Tribunal ultimately treated this consideration as slightly weighing in favour of revocation, thus indicating that there was at least some acceptance of such material as was advanced before the Tribunal, and that there was an acceptance that the applicant would not be able to have the kind of usual relationship the siblings have with their brother, if he was to live in New Zealand. 7 Having said that, there was a need for there to be some engagement with the material that I have summarised. Although it may well have been open to the Tribunal to form the conclusion that the applicant has no concerns for the welfare of any of his minor siblings, if such a conclusion was to be reached, it seems to me there needed to be some engagement, evident from the reasons, as to why it was reached. Although the Tribunal was not required to mention each item of evidence or submissions put to it, it was required to address the material as a whole, the significant matters that had been put forward in support of revocation, and to display a reasoning process which explained the decision. 8 It seems to me, in all the circumstances, it is appropriate to accept the submission of the applicant that the Tribunal apparently failed to have regard to the material the applicant placed before it concerning the best interests of minor children in Australia. The Tribunal's finding that the applicant had no concerns for the welfare of any of his brothers and sisters is, at the very least, in tension with statements made by the applicant to the contrary, and any rejection of such statements should have been addressed by the Tribunal in its reasons. 9 Obviously enough, an error by the Tribunal will generally not be characterised as jurisdictional error if it was immaterial to the ultimate conclusion and a breach is material to the decision only if compliance could "realistically result in a different decision": Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 (at 445 [45] per Bell, Gageler, Keane JJ). 10 To my mind, I have some reservations as to whether or not the error I have identified could realistically have resulted in a different decision. That is particularly so considering the conclusion reached by the Tribunal concerning the best interests of minor children "only very slightly weighs in favour of revocation" of the cancellation. But the decision in SZMTA has been the subject of consideration and explanation at Full Court level. 11 In Chamoun v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 66, Mortimer and Bromwich JJ explained (at [66]) that: We are not required to be satisfied it is more likely than not [that the Minister] would have exercised the power he did not appreciate he had, only that there is a realistic possibility he might have. In our opinion, the adjective "realistic" in the statements of principle by the majority in the High Court in Hossain and Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 364 CLR 421 is used to distinguish the assessment of the possibility of a different outcome from one where the possibility is fanciful or improbable, no more than that. (Emphasis added) 12 Obviously enough, I am bound by Full Court authority. Unlike the Full Court, I have not had the benefit of argument, but uninstructed by authority, I would have some initial reservations as to whether the word "realistic" in SZMTA was used Bell, Gageler, Keane JJ in the manner explained in Chamoun, but that is not relevant for present purposes and the current approach to materiality I ought follow is as identified above. 13 The prospect of a different outcome cannot be said to be fanciful or improbable and, consequently, the applicant is entitled to relief. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Lee.