What happened
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.
Why the court decided this way
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 and after state of the law
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.
Key passages with plain-English translation
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.
What fact patterns trigger this precedent
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.
How later courts have treated it
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.
Still-open questions
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.