Jurisdictional Error
37 I approach this appeal on the basis that the primary judge is to be understood to have found that the Tribunal's decision was affected by jurisdictional error as a result of a failure by the Tribunal to give proper, genuine and realistic consideration to Mr Lium's application for review.
38 The requirement for a decision-maker to give "proper, genuine and realistic consideration" to the issues before it is well established: see for example Minister for Immigration v SZJSS (2010) 243 CLR 164 and BZD17 v Minister for Immigration and Border Protection [2018] FCAFC 94 at [35]-[36]. However, there is a need to exercise caution in relation to the use of the expression "proper, genuine and realistic consideration" because there is a danger that it may draw the Court into an impermissible merits review: see Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352 at [32] ("Carrascalao") and the cases there cited. In Carrascalao, the Full Court said at [35]:
"…the evaluative judgment which the court must undertake in assessing whether the Minister has properly considered the merits of the cases before him requires focus on the question of whether the applicants have established that the Minister did not engage in an active intellectual process…"
39 The requirement that the Tribunal engage in an active intellectual process does not impose upon it an obligation to refer to every piece of evidence and every contention in the reasons for decision (Carrascalao [45]). Nor does it require the Tribunal to provide lengthy or detailed reasons. A failure to provide reasons for making a particular finding or arriving at a particular conclusion may sometimes provide a basis for inferring that the decision maker did so without any sufficient reason. But there are many cases in which the brevity of the reasons provided merely reflect the lack of any relevant complexity or difficulty that would, if present, require the provision of more detailed reasons necessary to provide some evident and intelligible justification for the decision.
40 In considering whether it engaged in an active intellectual process, the reasons of the Tribunal should not be scrutinised "minutely and finely with an eye keenly attuned to the perception of error" (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [30] per Brennan CJ, Toohey, McHugh and Gummow JJ citing Neaves, French and Cooper JJ in Collector of Customs v Pozzolanic (1993) 43 FCR 280 at [37]. Further, as the Full Court observed in Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248 at [59]:
… A decision-maker is entitled to be brief in his or her consideration of a matter which has little or no practical relevance to the circumstances of a particular case. A court would not necessarily infer from the failure of a decision-maker to expressly refer to such a matter in its reasons for decision that the matter had been overlooked. But if it is apparent that the particular matter has been given cursory consideration only so that it may simply be cast aside, despite its apparent relevance, then it may be inferred that the matter has not in fact been taken into account in arriving at the relevant decision: Elias v Federal Commissioner of Taxation (2002) 123 FCR 499 at [62] (per Hely J). Whether that inference should be drawn will depend on the circumstances of the particular case.
41 The Minister relied upon the decision of the High Court in Hossain v Minister for Immigration (2018) 264 CLR 123 ("Hossain") as authority for the proposition that for an error to be jurisdictional it must be material in the sense that it must have affected the exercise of the relevant power. As the plurality (Kiefel CJ, Gageler and Keane JJ) explained at [27]-[31]:
[27] Just as identification of the preconditions to and conditions of an exercise of decision-making power conferred by statute turns on the construction of the statute, so too does discernment of the extent of non-compliance which will result in an otherwise compliant decision lacking the characteristics necessary to be given force and effect by the statute turn on the construction of the statute. The question of whether a particular failure to comply with an express or implied statutory condition in purporting to make a particular decision is of a magnitude which has resulted in taking the decision outside the jurisdiction conferred by the statute cannot be answered except by reference to the construction of the statute.
[28] The common law principles which inform the construction of statutes conferring decision-making authority reflect longstanding qualitative judgments about the appropriate limits of an exercise of administrative power to which a legislature can be taken to adhere in defining the bounds of such authority as it chooses to confer on a repository in the absence of affirmative indication of a legislative intention to the contrary. Those common law principles are not derived by logic alone and cannot be treated as abstractions disconnected from the subject matter to which they are to be applied. They are not so delicate or refined in their operation that sight is lost of the fact that "[d]ecison-making is a function of the real world".
[29] That a decision-maker "must proceed by reference to correct legal principles, correctly applied" is an ordinarily (although not universally) implied condition of a statutory conferral of decision-making authority. Ordinarily, a statute which impliedly requires that condition or another condition to be observed in the course of a decision-making process is not to be interpreted as denying legal force and effect to every decision that might be made in breach of the condition. The statute is ordinarily to be interpreted as incorporating a threshold of materiality in the event of noncompliance.
[30] Whilst a statute on its proper construction might set a higher or lower threshold of materiality, the threshold of materiality would not ordinarily be met in the event of a failure to comply with a condition if complying with the condition could have made no difference to the decision that was made in the circumstances in which that decision was made. The threshold would not ordinarily be met, for example, where a failure to afford procedural fairness did not deprive the person who was denied an opportunity to be heard of "the possibility of a successful outcome", or where a decision-maker failed to take into account a mandatory consideration which in all the circumstances was "so insignificant that the failure to take it into account could not have materially affected" the decision that was made.
[31] Thus, as it was put in Wei v Minister for Immigration and Border Protection [(2015) 257 CLR 22 at [23]; 90 ALJR 213] "[j]urisdictional error, in the sense relevant to the availability of relief under s 75(v) of the Constitution in the light of s 474 of the Migration Act, consists of a material breach of an express or implied condition of the valid exercise of a decision-making power conferred by that Act". Ordinarily, as here, breach of a condition cannot be material unless compliance with the condition could have resulted in the making of a different decision.
(some citations omitted)
42 The Minister also referred me to the decision of the Full Court in Ahmad v Minister for Immigration and Border Protection; Zhao v Minister for Immigration and Border Protection (No 2) [2018] FCAFC 200 ("Ahmad") in which the Full Court (Rares, Davies and Bromwich JJ) held that where an applicant cannot meet an essential requirement for a visa application to be valid or approved, any error in the Tribunal's expression of its reasons is not an error that goes to the exercise of its jurisdiction.
43 The Minister also submitted that where a decision is affected by jurisdictional error, there remains a discretion to grant or refuse relief. When exercising this discretion, regard is generally had to whether in all the circumstances, curing or eliminating the error would have made any difference or affected the result: see, for example, Hossain [43], [73] - [74], Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145, Balenzuela v De Gail and Anor (1959) 101 CLR 226 at 234.