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[2018] FCAFC 217
mixed. Appeal allowed; notice of contention upheld; orders of the primary judge not disturbed save as to costs; first respondent to pay appellant's costs of the hearing below and of the appeal up to 30...
An Iraqi refugee who committed serious crimes had his visa cancelled and the Tribunal refused to revoke the cancellation. The Tribunal called safety risks in Iraq and family ties 'secondary' considerations and decided they did not outweigh community protection and expectations. A Federal Court judge set that decision aside, thinking the Tribunal had treated those factors as automatically less important. The Full Court disagreed with that reading of the Tribunal's reasons because the Tribunal had actually weighed everything and said the primary factors 'normally' outweighed the others, which is what Direction 65 allows. However the Full Court agreed that the Tribunal had completely ignored the effect of deportation on the man's sister in Perth even though the evidence showed she visited him in prison, helped their sick mother and would suffer emotionally. Because the Tribunal gave no findings at all on that point, it had failed to do its job. The visa cancellation decision was sent back to the Tribunal to be decided again, this time taking proper account of the sister's situation. The case confirms that while protecting the Australian community is usually the heaviest factor, decision-makers must genuinely consider and mention every relevant family impact raised by the evidence.
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The respondent, an Iraqi citizen who arrived in Australia in 2010 on a Class XB Subclass 200 (Refugee) visa, accumulated a substantial criminal record between 2011 and 2016. He was convicted in the District Court of Western Australia of offences including burglary, reckless and dangerous driving, impersonating a public officer, assault and possession of prohibited drugs with intent to sell or supply. He received custodial sentences exceeding 12 months. On 9 February 2017 a delegate mandatorily cancelled the visa under s 501(3A) of the Migration Act 1958 (Cth) on the basis that the respondent did not pass the character test and was serving a sentence of imprisonment.
The respondent made representations under s 501CA(3)(b) seeking revocation. In July 2017 a delegate decided not to revoke the cancellation under s 501CA(4). The respondent applied to the Administrative Appeals Tribunal. In October 2017 the Tribunal affirmed the non-revocation decision (HSKJ and Minister for Immigration and Border Protection [2017] AATA 1802). It found that the respondent did not pass the character test and that there was not “another reason” to revoke the cancellation. In doing so the Tribunal expressly applied Ministerial Direction 65, identifying the three primary considerations in paragraph 13 (protection of the Australian community, best interests of minor children, and expectations of the Australian community) and the other considerations in paragraph 14. It concluded that the primary considerations weighed heavily against revocation and that the countervailing other considerations, including non-refoulement obligations and strength of ties, did not outweigh them.
The respondent sought judicial review under s 476A(1)(b). The primary judge set the Tribunal’s decision aside on 6 July 2018 (HSKJ v Minister for Immigration and Border Protection [2018] FCA 1013). Her Honour held that the Tribunal had erred by treating “other” considerations as “secondary” considerations that must always be given lesser weight. She considered that this approach was indistinguishable from the error identified by Colvin J in Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 and that the Tribunal had started from the wrong premise when weighing the risk of harm if returned to Iraq.
The Minister appealed on four grounds directed to the primary judge’s construction of the Tribunal’s reasons and the permissibility of a hierarchy in Direction 65. The respondent filed a notice of contention asserting that the Tribunal had also committed jurisdictional error by failing to consider, or give proper consideration to, the impact of non-revocation on his Australian-resident sister, contrary to paragraph 14.2(1)(b) of Direction 65. The Full Court (Greenwood, McKerracher and Burley JJ) heard the appeal on 8 November 2018 and delivered judgment on 4 December 2018. The Court allowed the Minister’s appeal on the Direction 65 grounds but upheld the notice of contention, with the practical result that the primary judge’s orders setting aside the Tribunal decision and remitting the matter were not disturbed.
The Full Court began by reading the Tribunal’s reasons as a whole rather than isolating the two occasions on which it used the word “secondary”. At Tribunal reasons [96] the Tribunal asked whether the non-refoulement finding (an “other” or “secondary” consideration) outweighed the primary considerations. At [97] it said it “needs to weigh” the safety concerns against the “very strong concerns” regarding the seriousness of the crimes and risk of reoffending. At [98] it noted that primary considerations are “normally” given greater weight than other considerations “based on less than ideal evidence” and concluded that on the evidence before it the primary considerations “clearly outweigh this secondary consideration”. The Court regarded the word “normally” as an accurate reflection of Direction 65 paragraph 8(4) (“Primary considerations should generally be given greater weight than the other considerations”) and as indicating that the Tribunal did not treat the hierarchy as absolute. The additional language of “on balance” at [104] (ties) and [123] (overall conclusion) reinforced that the Tribunal had performed an evaluative weighing exercise rather than applying a rigid rule that other considerations could never prevail.
The Court accepted that if the Tribunal had treated a secondary consideration as incapable of outweighing a primary one it would have fallen into error, but the contextual indicators showed that had not occurred. Accordingly grounds 1 and 2 succeeded and it was unnecessary to decide grounds 3 and 4 concerning the validity of a hierarchy in a s 499 direction. The Court noted that it had not been asked to rule on the correctness of Suleiman and expressed no view on that decision.
On the notice of contention the Court held that paragraph 14.2(1)(b) required the Tribunal to consider the effect of non-revocation on immediate family members with a right to remain indefinitely “where relevant”. The Tribunal was bound by s 499(2A) to apply the Direction and by s 430(1) to set out its findings on material questions of fact and the evidence on which they were based. Drawing on Yusuf at [5], [69], MZYTS at [62] and SZSRS at [34], the Court reasoned that the complete absence of any reference to the sisters in the Tribunal’s dispositive findings at [102]-[104], despite extensive material raising the issue, permitted the inference that the Tribunal had not considered the impact at all. That material included the respondent’s personal circumstances form naming the sisters and their residence, his revocation request referring to the adverse impact on them, oral evidence that one sister lived in Perth and assisted the mother, prison records of visits by the sister, and the delegate’s own finding of “some emotional hardship”. The Tribunal’s focus on the mother’s cancer and need for care did not excuse the omission; the question of family impact had been expressly flagged by the Tribunal member during the hearing. Because the issue was material, the failure to address it was a jurisdictional error. The notice of contention was therefore upheld.
The costs orders reflected the mixed outcome: the Minister recovered costs up to the filing of the notice of contention; the respondent recovered three-quarters of his costs of the contention itself.
Before this decision there was uncertainty following Suleiman about whether a Tribunal that described “other considerations” as “secondary” had impermissibly fettered its discretion. Some judges read such language as indicating that the Tribunal approached the task on the basis that other considerations could never outweigh primary ones, contrary to the requirement in Direction 65 paragraph 8 to give “appropriate weight” to both categories. The present judgment narrows that reading. It emphasises that the Tribunal’s reasons must be read contextually. Use of the word “secondary” is ambiguous and may be no more than a synonym for “other”. What matters is whether the Tribunal has in substance performed the weighing exercise required by paragraphs 8(3), 8(4) and 14. References to what “normally” or “generally” occurs, or to weighing “on balance” in the particular case, will usually demonstrate that the Tribunal has not applied an absolute hierarchy.
The decision also reinforces the strictness of the s 430 obligation in the visa cancellation context. It confirms that where evidence squarely raises an aspect of an “other consideration” (here the effect on a sister), the Tribunal must make a finding if the matter is material. The Yusuf inference is not mandatory but will readily arise when the surrounding context shows the issue was alive and the reasons are otherwise detailed on analogous topics (the mother’s position) but silent on the omitted topic. The judgment therefore operates as a reminder that succinctness is acceptable only if every material question of fact raised on the materials has been addressed.
Subsequent versions of the Direction (Direction 79 and later) have retained the primary/other structure and the “generally greater weight” instruction. The present reasoning continues to govern how those paragraphs are to be applied.
Paragraph [30]-[35] of the Full Court reasons contain the central analysis on the Direction 65 ground. At [32] the Court quotes the Tribunal’s question at Tribunal [96]: “whether this finding in relation to what is an ‘other’ or ‘secondary’ consideration outweighs the Tribunal’s findings in relation to the primary considerations”. The Full Court says the reference is “ambiguous” but that the subsequent statement that the Tribunal “needs to weigh” the safety concerns against the “very strong” primary concerns shows real balancing occurred. Translation: calling something secondary does not automatically mean the Tribunal thought it could never win; the surrounding verbs matter.
At [35] the Court concludes: “the ambiguity apparent from the twice used word ‘secondary’ does not reflect the error that the learned primary judge considered had arisen”. Plain English: the judge below read too much into one word; the reasons as a whole were lawful.
On the notice of contention, paragraph [48] states: “we would not infer from the reasons given that the Tribunal considered that the impact of family insofar as it concerned the respondent’s sisters was not material. The manner in which it was drawn and the surrounding context indicate that it was material, but that the Tribunal failed to address it and thereby failed to exercise jurisdiction.” Translation: the sisters’ situation was obviously important, the Tribunal knew it was important, yet said nothing about it in the part of the decision that was supposed to contain all the important findings. That silence is itself an error.
Paragraph [53] is even more explicit: “The Tribunal made no material finding of fact in relation to the two sisters … we consider that the omission of any reference to the sisters was not because it considered that they were irrelevant … but because it failed to consider the impact on the sisters of the deportation of the respondent at all.” This is the clearest statement that a gap in the reasons, when the gap concerns a live issue, equals a failure to exercise jurisdiction.
This judgment is triggered whenever a Tribunal decision under s 501CA(4) uses the language of “secondary considerations” while applying Direction 65 (or its successors) and the Court is asked to decide whether that language betrays an impermissible assumption that other considerations can never outweigh primary ones. The precedent will be engaged where the Tribunal’s reasons contain phrases such as “normally given greater weight” or “on balance” or “in this case the primary considerations outweigh”, because those expressions tend to show that the hierarchy was treated as a starting point rather than an absolute rule.
The notice of contention aspect is engaged in any case in which an applicant relies on the effect of non-revocation on an adult sibling who is an Australian resident or holds an indefinite right to remain. If the materials before the Tribunal (personal circumstances form, revocation request, oral evidence, prison records, delegate’s reasons) contain any reference to that sibling’s residence, visits, emotional or practical support role, or likely hardship, the Tribunal must address the impact in its s 430 reasons. Silence, or mere repetition of the delegate’s findings without independent analysis, will invite the argument that the Tribunal failed to consider a material integer. The precedent is especially potent where the Tribunal has dealt in detail with the effect on one family member (commonly a parent) but omitted another (a sibling), or where the applicant is unrepresented and the evidence is scattered across several documents.
The judgment has been cited for the proposition that contextual reading of Tribunal reasons is required before an isolated use of the word “secondary” is condemned. Courts have accepted that the Tribunal does not err merely by repeating the language of Direction 65 paragraph 8(4) provided it then demonstrates that it has weighed the particular other consideration against the primary ones. The decision is also routinely relied upon for the application of the Yusuf inference in the visa cancellation context: where a matter is objectively central to an “other consideration” and the Tribunal’s reasons are otherwise comprehensive, silence is taken as non-consideration rather than a sub silentio finding of immateriality.
The analysis of s 430 in paragraphs [42]-[47] has been treated as a standard exposition of when an omission amounts to jurisdictional error, sitting alongside MZYTS and SZSRS. Later Full Courts have cited the present reasoning when distinguishing cases in which the Tribunal did make brief but sufficient findings on family impact from cases in which the findings were entirely absent. The costs approach (allowing the Minister costs up to the filing of a successful notice of contention) has also been followed in subsequent mixed-outcome migration appeals.
The Court expressly left open whether Suleiman was correctly decided. That question remains live: does the mere heading “Secondary Considerations” combined with the statement that primary considerations are “normally given greater weight” necessarily betray an error of construction, or can context always save the reasons? Different single judges have continued to reach different conclusions on substantially identical wording, suggesting the issue may require High Court clarification.
A further open question is the precise content of the obligation under paragraph 14.2(1)(b) when the evidence about a sibling’s residence or relationship is ambiguous. The present Tribunal failed to resolve whether one or both sisters lived in Australia. The Full Court did not decide whether a Tribunal must always make an express finding on that anterior factual question or whether it may proceed on the basis that at least one sister resided in Australia and then assess impact on that footing. Future cases will need to determine how granular the s 430 findings must be.
Finally, the interaction between the “where relevant” qualifier in paragraph 14(1) and the Tribunal’s obligation to form its own view of relevance remains unsettled. The Minister argued that if the Tribunal did not mention the sisters it must have decided the impact was not relevant. The Court rejected that argument on the facts because the surrounding context showed the issue was alive. Whether a Tribunal can ever demonstrate by its reasons as a whole that it has formed the opinion that a particular family member’s hardship is not relevant, without expressly saying so, is a question that will continue to generate dispute.
5.1 The arguments 26 In relation to grounds 1 and 2, the Minister contends that the premise of the primary judge's reasoning was that the Tribunal must have been of the view that the "other" considerations in Direction 65 should always be given lesser weight. It submits that the primary judge formed that view because the Tribunal described the "other" considerations as "secondary" considerations. The Minister submits that the premise was not supported by a contextual understanding of the Tribunal's decision. 27 The respondent submits in relation to grounds 1 and 2 that the Minister mischaracterises the premise of the primary judge's reasoning. He submits that the premise, which also underlies Suleiman, is that the use of the term "secondary" indicates an unconscious treatment of "other" considerations within Direction 65 as inherently less important than "primary" considerations. The respondent submits that the reasoning of the Tribunal was formulaic and did not reflect a weighing process, despite language at the conclusion of the Tribunal's reasons suggesting otherwise. The respondent further submits that the definitions of "secondary" may be ambiguous on the basis of the premise as framed by the Minister, but that if it is understood to go to "importance" rather than "weight" there is no relevant ambiguity. The word was not used by the Tribunal as a synonym for "other". 28 In relation to grounds 3 and 4, the Minister submits that a Ministerial Direction issued under s 499 may validly require a decision-maker generally to give more weight to some considerations than others, and to the extent that the primary judge's reasons suggest otherwise, that was an error. 29 The respondent submits that the decision-maker is entitled to consider 'another reason' for revoking a mandatory visa cancellation without statutory limitation. Subsection 501CA(4)(a) does not permit the Minister to limit the scope of matters which may be the subject of representations, but simply regulates the 'manner and form' in which they are to be given. As subsection 501CA(4) does not mandate that particular considerations are to be treated as being more important than others, it would be unlikely that the Parliament would authorise the executive to direct in advance which adverse considerations will be prevailing. As a consequence, (we infer from the respondent's submissions) to the extent that the primary judge's reasons suggest that Direction 65 wrongly requires a decision maker may not in a general sense give more weight to some considerations over others, then she was correct to do so.
5.2 Consideration of the appeal 30 In our view the Tribunal's reasons, read as a whole, do not reflect an understanding that "other" considerations must always be given lesser weight than primary considerations, or that this view prevailed when considering the international non-refoulement obligations owed to the respondent. This may be seen from the following matters. 31 First, at [96] the Tribunal considers its findings (at [95]) that the respondent assisted US military forces in Iraq in some capacity and faces some risk of harm if returned to Iran because of this association weighs to some degree in favour of revocation. It poses the question as: [W]hether this finding in relation to what is an "other" or "secondary" consideration outweighs the Tribunal's findings in relation to the primary considerations detailed above. 32 The reference to "secondary" in this context is ambiguous, because it may be synonymous with "other" or refer to an inferior consideration, but at [97], the Tribunal proceeds to observe that it "needs to weigh" these safety concerns with the "very strong" earlier identified (primary) concerns in relation to the seriousness of the respondent's crimes, the risk of further offending and what this would mean for the Australian community. At [98] it goes on to note that the primary considerations in Direction 65 are normally given greater weight than "other" considerations and that the Tribunal finds "that the primary considerations here clearly outweigh this secondary consideration" (emphasis added). The reference to "normally" indicates that the standard that the Tribunal is applying is not one that inevitably gives lesser weight to the "other" or "secondary" consideration, but that normally one does so. That is not an inaccurate characterisation of Direction 65, which in section 8(4) provides that "primary considerations should generally be given more weight than other considerations". The word "normally" indicates that the other consideration may sometimes not warrant lesser weight. Further, the finding that the primary considerations here outweigh the secondary consideration indicates a balancing exercise on the part of the Tribunal that would be redundant if it had considered that a primary consideration would always prevail over a secondary consideration. 33 This understanding of the Tribunal's reasons is in our view supported by the language used at [104], where the Tribunal concludes in its consideration of the "strength, nature and duration of ties" that it is not convinced that "on balance" they outweigh the primary considerations identified earlier. 34 Further, in its conclusions at [119] - [124] (set out in full above) the Tribunal engages in a process that proceeds to weigh the "other" considerations, which it finds are in favour of revocation, against the countervailing considerations and concludes that on balance they do not "outweigh the other primary considerations" which are "generally afforded greater weight" (emphasis added). This language indicates that the Tribunal did not take the view that "other" considerations were always subservient to primary considerations. 35 Taken together, we consider that the ambiguity apparent from the twice used word "secondary" does not reflect the error that the learned primary judge considered had arisen. At this point we should note that we have not here been asked to consider in this context the correctness of Suleiman. Certainly if the Tribunal did regard a secondary consideration as incapable of outweighing a primary consideration then it would not, in that respect, be correct and her Honour's agreement with that decision would equally have been correct. However, the contextual matters to which we have referred indicate that the Tribunal did not do so in the present case, as a result of which the appeal based on grounds 1 and 2 succeeds. 36 Grounds 3 and 4 concern [38], [41], and [42] of the primary judge's reasons. The Minister submits that if the primary judge there found that a Ministerial Direction issued under s 499 of the Act may not validly require a decision maker generally to give more weight to some considerations than to others, then she fell into error. 37 Given the view that we have expressed above, it is not necessary for us to address this point in detail. In our view her Honour's reasons should not be construed in this way. In [41] it is apparent that her Honour considered that the Tribunal had incorrectly found that Direction 65 required the "other" considerations to be addressed from a starting point that they were secondary, and on that basis found that there was jurisdictional error. That conclusion indicates that her Honour did not find that Direction 65 could not specify in general terms the weight to be placed by a decision maker on various considerations, but, to the contrary, that the Tribunal had erroneously thought that it was required to give certain considerations less weight. We would not read the other paragraphs identified by the Minister in a different way.
6.1 The arguments 38 In relation to ground 1 of the Notice of Contention, the respondent submits that the Tribunal was required by paragraph 14.2(1)(b) of Direction 65 to consider the respondent's ties with lawful Australian indefinite residents. He came to Australia with his mother and one of his two sisters. The Tribunal properly considered his relationship with his mother, and the effect of his deportation on her, but having received evidence of his two sisters, it failed to consider or make any material findings in relation to them. At [100] the Tribunal recited the Minister's submissions of 4 October 2017 that the respondent's mother and siblings reside in Australia and implicitly adopted those findings. It then extracted a passage from the delegate's reasons in which two Australian resident sisters are identified, notes that neither had supplied any information in support of his request for revocation, and then makes a positive finding that non-revocation would create "some emotional hardship". However, the Tribunal's conclusions do not address the position of the respondent's sisters. The respondent submits that it is to be inferred that the references to "family" include the respondent's sister or sisters, but that the Tribunal was required to make a finding on the effect of non-revocation on his immediate family. It did not do so, notwithstanding a number of references in the evidence that support a conclusion that his sister would have been adversely affected by non-revocation. The Tribunal was required to identify its findings on any material questions of fact and the evidence of any other material upon which they were based; s 430(1)(c) and (d) of the Act. That omission invites an inference that no such finding was made and that the Tribunal constructively failed to exercise jurisdiction by misapplying s 14.2(1)(b) (citing Williams v Minister for Immigration and Border Protection [2014] FCA 674; (2014) 226 FCR 112 (Mortimer J) at [25]). He submits that the primary judge fell into error by failing to find such omission. 39 The Minister does not object to the reliance by the respondent on the Notice of Contention, subject to the question of costs, but submits that there was no failure to consider the impact of non-revocation on one of the respondent's resident sisters. This is because such duty as arose under paragraph 14.2(1)(b) was limited to the obligation to consider the impact on family members, not to make a finding as to precisely what that impact would be. In the circumstances of the present case, the obligation was to consider "where relevant" the effect of non-revocation on the family. What is "relevant" is a matter for the opinion of the Tribunal. It follows, the Minister submits, that if the Tribunal had not addressed the impact on one or more of the respondent's sisters, all that would follow is that the Tribunal did not consider that impact to be "relevant" to its non-revocation decision, citing Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [69]. 40 The Minister further submits that the Tribunal did consider the impact of non-revocation on the respondent's sisters at [99] and noted what the delegate had found at [101]. Read fairly, the Minister submits that the Tribunal had regard to and accepted the delegate's finding that in the event that the respondent was removed from Australia his sisters "may experience some emotional hardship". Further, the Minister submits that the succinctness with which the Tribunal expressed its reasons on this point is understandable because of a lack of reliance by the respondent on the impact on his sisters in either his submissions, the evidence or the written materials.
6.2 Consideration of the Notice of Contention 41 There is no dispute that the Tribunal had a duty to consider the impact on non-revocation on family members of the respondent. This arises from paragraph 14.2(1)(b) of Direction 65 and s 499(2A) of the Act, which renders Direction 65 binding on the Tribunal. The Tribunal was aware of that requirement and quoted the paragraph from Direction 65, which relevantly provides: (b) The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non-citizen's immediate family in Australia (where those family members are … people who have a right to remain in Australia indefinitely). 42 The Tribunal was bound by s 430(1) to provide a written statement of its reasons. Relevantly it provides as follows: 430 Tribunal's decision and written statement Written statement of decision (1) Where the Tribunal makes its decision on a review (other than an oral decision), the Tribunal must make a written statement that: (a) sets out the decision of the Tribunal on the review; and (b) sets out the reasons for the decision; and (c) sets out the findings on any material questions of fact; and (d) refers to the evidence or any other material on which the findings of fact were based … 43 The reasoning of Gleeson CJ in Yusuf includes the following: [5] When the Tribunal prepares a written statement of its reasons for decision in a given case, that statement will have been prepared by the Tribunal, and will be understood by a reader, including a judge reviewing the Tribunal's decision, in the light of the statutory requirements contained in s 430. The Tribunal is required, in setting out its reasons for decision, to set out "the findings on any material questions of fact". If it does not set out a finding on some question of fact, that will indicate that it made no finding on that matter, and that in turn, may indicate that the Tribunal did not consider the matter to be material. … [9] The major difficulty for the respondents, however, lies in the language of s 430. There is nothing in that language which imposes a requirement to make a finding on every question of fact which is regarded by the Federal Court, on judicial review of the Tribunal's decision, as being material. A good deal of materiality jurisprudence has developed from the attempt to relate ss 476(1)(a) and s 430. Questions of fact which appear to have been regarded by the Tribunal as material are sometimes described as "subjectively material", to distinguish them from questions of fact which are regarded as material by a court reviewing the Tribunal's decision. … [10] The requirement imposed by s 430 is to prepare a written statement that, in the context of setting out the Tribunal's reasons for decision, "sets out the findings" on any material questions of fact. It is impossible to read the expression "the findings" as meaning anything other than the findings which the Tribunal has made. By setting out its findings, and thereby exposing its views on materiality, the Tribunal may disclose a failure to exercise jurisdiction, or error of a kind falling within a ground in s 476(1) other than s 476(1)(a), or may provide some other ground for judicial review. … 44 The effect of s 430(1) is that the Court is entitled to infer that a matter not mentioned in the Tribunal's reasons was not considered by it to be material: Yusuf at 346 [69] (McHugh, Gummow and Hayne JJ). Equally, it is permissible for this Court to conclude from the absence of any direct consideration of the impact on the sisters, that the Tribunal did not consider them material to its decision; paragraph 8(1) of Direction 65 requires the Tribunal only to take into account the primary and other considerations relevant to the individual case before it. In this regard, as the reasons of Gleeson CJ in Yusuf at [9] indicate, there is no occasion to consider whether this Court is of the opinion that there were relevant parts of the guidelines or country information that should have been considered. It is the Tribunal's views on relevance which matter, not those of this Court. We agree, with respect, with the observations of Perram J in SZTMD v Minister for Immigration and Border Protection [2015] FCA 150; (2015) 150 ALD 34 at [19], [20]: 19 The inference in Yusuf is not mandatory. The manner in which a statement of reasons is drawn, or even its surrounding context, may provide material which detracts from, or even displaces, the inference. For example, there may be country information which was available to the Tribunal which is so obviously relevant that it is unthinkable that the Tribunal would not have referred to it if it had actually considered it. There is nothing, however, like that in this case. The applicant's argument did not move beyond the generality of the claim that the material was not considered to any detailed analysis of what that might signify. In those circumstances, there is no good reason not to draw the Yusuf inference. Once that occurs it seems to me that I cannot avoid the conclusion that the Tribunal did address itself to the issue of the relevance of the material and decided that it was irrelevant. 20 Although the applicant did not directly raise the issue, I would indicate that I accept Mr Hume's submission that it was for the Tribunal to form an opinion as to what was relevant under cll 2 and 3 and what was not. The usual way of reading provisions such as these clauses is that they are construed as requiring the formation by the decision-maker of an opinion on the standard (here, relevance) imposed; that is to say, they are not generally construed as requiring the existence of a jurisdictional fact: see, for example, Australian Heritage Commission v Mount Isa Mines Ltd (1995) 60 FCR 456 at 466-468 (FC). Consequently, there is no occasion to consider whether this Court is of the opinion that there were relevant parts of the guidelines or country information. It is the Tribunal's views on relevance which matter, not those of this Court. In any event, even if that was not so, the applicant made no attempt to point to any aspect of the guidelines or country information which he said were relevant and should, therefore, have been taken into account. 45 In Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; (2013) 230 FCR 431 (Kenny, Griffiths and Mortimer JJ), the absence of certain matters from the Tribunal's reasons allowed the Court to conclude that there had been error by the Tribunal: 62 As we have set out above, the visa applicant's claim to be, or to be perceived to be, a member or supporter of the MDC if he were to have to return to Zimbabwe required the Tribunal to form a state of satisfaction about what might happen to him, and why, given the prevailing circumstances in Zimbabwe on his return. As we have also set out above, the Tribunal's reasons do not disclose any consciousness, nor any consideration, of those prevailing circumstances in any part of 2011, nor of the effect of the election cycle in Zimbabwe. They disclose no consciousness, nor any consideration, of what were submitted to be increasing incidents of political violence directed not at high-profile people but at "ordinary" MDC supporters or members. The absence of these matters from the reasons, combined with the centrality of them to the visa applicant's claimed fear of persecution as clearly articulated to the Tribunal before, during and after the hearing, allow us comfortably to infer that the Tribunal did not consider these matters, or consider these matters material to the task of asking whether or not the visa applicant had a well-founded fear of persecution. For the Tribunal to form the latter view reveals a misunderstanding of its statutory task on review at the most fundamental level. A failure to consider the claim advanced by a visa applicant is plainly and uncontroversially a failure to perform the statutory task imposed on the Tribunal. The absence of these matters from the reasons allows, as Yusuf recognises could be the case, a conclusion of error on judicial review. 46 In Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16; (2014) 309 ALR 67 (Katzmann, Griffiths and Wigney JJ), the Tribunal's failure to address a particular letter provided by the applicant was held to give rise to jurisdictional error. The Court at [34] made observations as to the nature of the exercise in determining whether a matter is considered by the Tribunal or not (emphasis added): 34 The fact that a matter is not referred to in the Tribunal's reasons, however, does not necessarily mean the matter was not considered by the Tribunal at all: SZGUR at [31]. The Tribunal may have considered the matter but found it not to be material. Likewise, the fact that particular evidence is not referred to in the Tribunal's reasons does not necessarily mean that the material was overlooked. The Tribunal may have considered it but given it no weight and therefore not relied on it in arriving at its findings of material fact. But where a particular matter, or particular evidence, is not referred to in the Tribunal's reasons, the findings and evidence that the Tribunal has set out in its reasons may be used as a basis for inferring that the matter or evidence in question was not considered at all. The issue is whether the particular matter or evidence that has been omitted from the reasons can be sensibly understood as a matter considered, but not mentioned because it was not material. In some cases, having regard to the nature of the applicant's claims and the findings and evidence set out in the reasons, it may be readily inferred that if the matter or evidence had been considered at all, it would have been referred to in the reasons, even if it were then rejected or given little or no weight: MZYTS at [52]. 47 The Court in SZSRS found that by failing to consider the letter, the Tribunal had committed a jurisdictional error (at [64]). 48 In the present case, we would not infer from the reasons given that the Tribunal considered that the impact of family insofar as it concerned the respondent's sisters was not material. The manner in which it was drawn and the surrounding context indicate that it was material, but that the Tribunal failed to address it and thereby failed to exercise jurisdiction. 49 The Tribunal records in its reasons the Minister's submission that the respondent's "mother and siblings reside in Australia" and then quotes the delegate's reasons, which refer to the respondent's submission that he is the primary carer for his mother who has been diagnosed with breast cancer and who relies heavily upon him for practical assistance. The Tribunal also sets out the delegate's findings, which we have quoted above at [18], to the effect that he has two sisters who reside in Australia with their husbands, noting that they have not submitted information and that the respondent has not supplied detailed information about his relationship with them. The delegate finds that in the event of the respondent's removal from Australia, his sisters may experience emotional hardship. But then the Tribunal goes on at [102] - [104] to make its own findings in relation to paragraph 14.2(1)(b). Those findings make no reference at all to the siblings. The closest the Tribunal comes is to conclude that "[o]verall" the respondent "does have ties to the Australian community". 50 However, having referred to two sisters, the Tribunal does not proceed independently to consider the impact of the respondent's deportation upon them. The overall conclusion reached makes no reference to them. We reject the Minister's submission that by noting and quoting the delegate's findings, the Tribunal adopted them as its own. That construction does not appear from a reading of the Tribunal's reasons as a whole, where material findings of fact and conclusions are expressly set out following the quotation and reflect the evidence and additional materials that the Tribunal had before it, including the oral evidence of the respondent. 51 Nor is that conclusion appropriate having regard to the evidence before the Tribunal concerning the sisters, which appears to exceed the materials available for consideration by the Delegate. Those matters may be summarised as follows: (1) In his personal circumstances form completed in February 2017 in response to the notice of intention to consider visa cancellation provided to the respondent, the respondent identified his two sisters by name and listed one as resident in Australia and the other as resident in the United States. In so doing he alerted the Tribunal to their relevance as members of his immediate family. (2) In his own letter requesting revocation, which is undated, the respondent said when he came to Australia he joined his mother and two sisters who he says live in Perth, and refers to the adverse impact that his criminal conduct has had on his sisters. (3) During the course of his evidence given to the Tribunal the respondent refers to his sisters, one living in Perth and the other, an American citizen and also with a permanent resident visa in Australia, who is married to a citizen of Saudi Arabia. The evidence is ambiguous as to whether this second sister lived in Australia at the time of the hearing. (4) In this context, the transcript of the hearing indicates that the Tribunal had an appreciation that one issue for it to determine was the impact on this family of his deportation. However, it appears that the Tribunal's focus was on the impact that his deportation would have on the ability of the respondent's mother to receive care in that event. The Tribunal notes: [O]ne of the things that I need to look at is what negative consequences arise to your family should you leave. One of the questions I have is who will take care of your mother if you were deported? In response the respondent said that his mother does not have anyone and he also does not have anyone if he gets deported. In submissions before us, the Minister seeks to characterise these questions and the response as indicating that the respondent did not at the hearing wish to raise any question of the impact of his departure on his sisters. However, to an unrepresented litigant it was quite appropriate for the respondent to address the second of the two identified questions as the one he was asked to consider. That question did not draw attention to impact on family, or the previously identified sisters, but rather the impact on his mother should he be deported. Nevertheless, the first of the questions asked showed that the Tribunal was aware that the issue of the impact on the family as a whole was alive. Given that immediately prior to these questions the respondent identified that both of his sisters were entitled to residence in Australia, and that at least one of them was resident, the question of the impact of the respondent's deportation on them was squarely raised. (5) The presence of at least one sister in Perth is amplified by the evidence of the respondent's mother at the hearing, who resides in Perth and identified that one of her daughters (the respondent's sister) had assisted her while she was sick.. (6) In a document dated 14 December 2016 prepared by the Western Australian Department of Corrective Services entitled "Individual Management Plan" reference is made to the respondent receiving regular social visits from his mother and occasional visits from his sister, who resides in North Perth. In a later document the department says: … [the respondent] has reported that he has a strong family support network which includes his mother, brothers, sisters, uncles and aunties. [The respondent] has reported that being connected with his family and their approval of his behaviour is important to him and provide [sic] additional motivation not to reoffend, therefore, [his] family may be considered a protective factor. (7) The reference to visits from his sister is supported by a copy of the register of permitted visitors to the respondent whilst he was in prison. 52 The Minister is, with respect, correct to submit that the inclusion of the words "where relevant" in paragraph 14(1) of Direction 65 indicate that the duty to consider the matters raised in it is not an invariable one, and that what is "relevant" is a matter of opinion for the individual decision-maker. However, it does not follow that if the Tribunal has not addressed the impact of deportation on one or more of the respondent's sisters, then it is to be inferred that the Tribunal did not consider that impact to be relevant to its non-revocation decision. 53 The Tribunal made no material finding of fact in relation to the two sisters. It did not resolve the question of whether one or two of them were resident in Australia (the evidence on this is ambiguous). Nor does it refer in its findings to the one sister in the context of her visits to the respondent whilst he was in prison or otherwise. Having regard to the reasons of the Tribunal at [102] - [104], we consider that the omission of any reference to the sisters was not because it considered that they were irrelevant, or because it considered that by noting the findings of the delegate it had adopted those findings, but because it failed to consider the impact on the sisters of the deportation of the respondent at all. This may perhaps be explained by the Tribunal's particular focus on the effect of his departure on the respondent's mother (who was suffering from cancer) and the question of whether that impact may be diminished by the presence in Perth of one of the sisters, which it did address. 54 In submissions the Minister correctly observes that the Tribunal is not obliged to consider afresh, in every case, all possible issues presented by an applicant's claim. But in our view the contention that the respondent did not place the issue concerning the impact on the sister(s) before the Tribunal to dispute its findings in relation to them is misplaced. Bearing in mind the fact that the respondent was not represented, is not literate in written English and was suffering disadvantages such as limited access to computers and the like that are familiar to those in mandatory detention, we consider that by reason of the matters that we have itemised in [51] above, the issue of the impact of his deportation on his sister or sisters was sufficiently raised for it to be a material consideration warranting the attention of the Tribunal. 55 In our view the respondent has established that the Tribunal failed to exercise jurisdiction in relation to the question of his sisters.
Minister for Home Affairs
HSKJ
[2017] AATA 1802
(2013) 230 FCR 431
(2014) 309 ALR 67
(2001) 206 CLR 323
(2014) 226 FCR 112
(1995) 60 FCR 456
[2001] HCA 30
Appeal allowed; notice of contention upheld; orders of the primary judge not disturbed save as to costs; first respondent to pay appellant's costs of the hearing below and of the appeal up to 30 October 2018; appellant to pay three-quarters of first respondent's costs of the notice of contention.