The Decision of the Federal Magistrate
47 Ms Khadgi sought judicial review of the Tribunal's decision on 24 December 2009. In her application for judicial review, Ms Khadgi raised the following grounds:
Grounds of application
1. The Tribunal committed jurisdictional error by failing to have regard to a relevant consideration.
Particulars
The Tribunal failed to have regard to the considerations set out at reg. 2.41(f)-(k) of the Migration Regulations 1994 (Cth), which are mandatory considerations by virtue of section 109(1)(c) of the Migration Act 1958 (Cth) ("Act").
2. The Tribunal's decision is affected by jurisdictional error in that the statutory preconditions to the issuing of a notice under section 107 and the exercise of the power to cancel a visa under section 109 had not been satisfied.
Particulars
….
48 Only the first ground was pressed by Ms Khadgi before the Federal Magistrate.
49 After giving an overview of the factual background of the case and the approach of the Tribunal at [1]-[10] of his reasons, the Federal Magistrate reviewed the submissions of the parties as to the meaning of the Tribunal's obligation to "consider" the prescribed circumstances, as required by s 109 of the Act.
50 Those submissions were aptly summarised at [15] of the Federal Magistrate's reasons as follows:
15. The applicant argues the failure to consider a mandatory matter constitutes a failure to take into account a relevant consideration that constitutes jurisdictional error; Minister for Aboriginal Affairs v Peko Wallsend Limited (1985) 162 CLR 24 at [39] per Mason J. The respondent argues that:
"What is required by the Tribunal is an active intellectual consideration where the consideration is a central element in the consideration of a decision maker or something of sufficient weight or importance: Peko Wallsend Ibid at [39-40], Telstra Corporation Limited v Australian Competition and Consumer Commission (2008) 107 ALD 474; [2008] FCA 1758 at [103-112] approved and applied in Telstra Corporation Limited v Australian Competition Tribunal [2009] FCAFC 23 at [267] per Jacobson, Lander and Foster JJ. On the facts of this case it is clear that none of the items were items in (f) to (k) of Regulation 2.41 were ultimately central to the exercise of the Tribunal's discretion. On the facts, nor would one expect them to be. Section 109 requires their consideration, but the exercise of the Tribunal's discretion evidently did not turn upon them."
51 At [12]-[14] of his reasons, the Federal Magistrate noted that Ms Khadgi's interpretation of the meaning of "consider" was informed by the interpretation of the Full Court in Tickner v Chapman (1995) 57 FCR 451 at 462 (per Black CJ) where the expression was interpreted as requiring the decision-maker to undertake an active intellectual process directed at the representation or submission - an interpretation which was referred to with approval by Madgwick J in NAJT v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 51 at [212] (pp 92-93). In NAJT, his Honour held that a decision maker cannot be said to have had regard to all of the information to hand when he or she is under a statutory obligation to do so, without at least really and genuinely giving consideration to all of that information.
52 At [16]-[17] of his reasons, the Federal Magistrate discussed the decision of Lander J in Zhong v Minister for Immigration and Citizenship (2008) 171 FCR 444, in which Counsel for Ms Khadgi placed much store. The Federal Magistrate cited [83], [85] and [86] of the reasons of Lander J in that case. In those paragraphs of his reasons, Lander J observed that the relevant decision-maker must specifically consider the matters listed in reg 2.41, in the sense that the decision-maker is obliged to specifically enquire into those circumstances. The Federal Magistrate went on to say, however, that, while he was prepared to accept that the reasoning of Lander J in Zhong was directly in point, he was nonetheless required to find whether or not "this Tribunal in this case" had failed to give consideration to the contentious criteria.
53 At [18]-[25] of his reasons, the Federal Magistrate discussed the Tribunal's obligation to consider all of the prescribed circumstances. At [18]-[19], his Honour said:
18. I am unable to say that I am assisted by Zhong in coming to what is essentially a factual conclusion as to what the Tribunal may have done in the instant case…
19. The MRT decision in Zhong was not before me so I am unable to compare the quantity or quality of the purported consideration in that case with what occurred in the instant case. Suffice to say that it would appear that there was reference to factors of community contribution by the applicant to the Tribunal but it was not sufficient to satisfy what Lander J saw as the need to "specifically enquire". I take from this that it is not enough to show that there was some discussion to conclude that a matter was considered. The court must be able to assess the quality of that discussion to decide whether it amounts to a specific enquiry and thus consideration in the Chapman v Tickner sense. Thus each of the items (g) to (k) need to be considered [our emphasis]. In considering them I shall take into account the oft quoted observations of the Full Court of the Federal Court in Applicant WAEE v Minister for Immigration (2003) 75 ALD 630 at [47]:
[47] The inference that the tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where, however, there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.
And the decision of the Full Court Lindgren, Rares and Foster JJ in Lafu v Minister for Immigration [2009] FCAFC 140. In that case it was accepted that the Tribunal was required to take into account the question of deterrence in a s.501 visa cancellation issue when that matter was required to be taken into account by Direction 21 of the Minister's Directions. The first instance Judge found deterrence had been taken into account and made reference to four paragraphs in the AAT decision about it. These four paragraphs were revealed to be identical to a similar four paragraphs in another AAT decision by the same Tribunal member and her Honour accepted that the AAT's observations read in isolation were capable of giving rise to a suspicion of abstract recitation of principal irrespective of the facts in the individual case. Her Honour also applied the views expressed by the High Court in Minister for Immigration and Ethnic Affairs v Wu Shang Liang (1996) 185 CLR 259 at [272] and understood the need for an engagement by the AAT in "an act of [sic] intellectual process" per Tickner v Chapman at [462]. The Full Court opined:
[49] When the allowances called for by this passage [Wu Shang Liang] are made, we remain of the view that the AAT's reasons for decision fall on the wrong side of the line: they do not show an active intellectual engagement with the question how the factor or consideration of general deterrence was taken into account, and therefore whether it was taken into account at all, in the exercise of a discretion to cancel. Mr Lafu would be left to guess what role, if any, the issue of general deterrence had played [our emphasis]. Yet it will be recalled (see [32] above) that Mr Lafu had expressly submitted that "[g]iven the lack of publicity about the matter, and the lack of any gang involvement, cancelling the applicant's visa would have no deterrent value".
[50] We do not think that the structure of the AAT's reasons for decision is to be ignored. It was at [124]-[127] that the AAT deliberately turned its attention to the requirement that it consider a question of general deterrence, yet we find in those paragraphs no engagement with the question how the AAT considered the way, if any, that the issue of general deterrence related to the facts of Mr Lafu's case.
…
[53] We are not persuaded that the passage from WAEE set out at [45] above signifies that the AAT was relieved from giving reasons as to the actual relevance general deterrence had to its decision to affirm the cancellation of Mr Lafu's visa. In the present case the AAT did expressly refer to the issue of general deterrence in the statement of its reasons. The problem is that [124]-[127] where the AAT did so, turn out, upon analysis, not to expose a consideration of the question of general deterrence as it relates to the facts of the present case at all.
[54] Notwithstanding her Honour's careful analysis, our own careful analysis of the AAT's reasons convinces us that so far as those reasons reveal, the AAT did not reach a conclusion in relation to whether and to what extent general deterrence was relevant to the circumstances of Mr Lafu's case. Apart from reciting the requirement that that factor be taken into account, the AAT's reasons do not indicate whether the AAT was influenced, and if so by what process of reasoning, by the factor of general deterrence, in deciding that Mr Lafu's visa was to be cancelled. We conclude that the AAT did not give real consideration to the factor of general deterrence as it related to the individual circumstances of Mr Lafu's case.
What I take from Lafu is that where there is a prima facie indication that the Tribunal has not fully engaged with a required criteria the court will examine the statement of reasons with some care so that it can decide whether the manner in which the Tribunal dealt with the particular criteria came up to the required standard [our emphasis].
54 At [20]-[25] of his reasons, the Federal Magistrate addressed the Tribunal's reasoning in respect of each of the contentious criteria. The Federal Magistrate concluded that the Tribunal had failed to engage sufficiently with any of the contentious criteria.
55 At [20]-[24] of his reasons, the Federal Magistrate said:
20. The Subsequent Behaviour of the Visa Holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
[139] There is no information before the Tribunal about the applicant's subsequent behaviour. [CB 266]
When this topic was considered by the delegate [CB 163] she noted:
"Ms O'Donogue on behalf of Ms Khadgi has responded to both the notice of intention to consider cancellation under s.109 sent on 17 September 2008 and to the additional information forwarded on 7 November 2008."
My reading of this criteria is that it has much in common with the consideration given by sentencing Judges to the manner in which a convicted person acted following charges being laid. It is clear that Ms Khadgi, through a migration agent, co-operated with the department and she went further. Although denying the truth of Mr Graniero's statements and maintaining her position that she had completed 900 hours of work experience, she sought and obtained a new TRA in respect of which the work experience has not been impugned. The Tribunal's responsibility is to engage with the criteria, not to get its decision upon the criteria right. If it had indicated in its reasons for decision that it did not consider the consideration given by the delegate to this criteria was responsive or that the applicant's new TRA should be considered under this criteria then the court would be able to identify an appropriate level of engagement [our emphasis]. The one line sentence at [139] compares unfavourably with the more detailed consideration given to other criteria between [132] and [138]. The Tribunal did invite the applicant to comment upon this and all the other criteria in its letter of 1 April 2009 [49] [CB 247]. Whilst the matter was not specifically addressed in Ms Khadgi's response it could be said this was understandable as she was attempting to establish the bona fides of her application. Her agent did send the new TRA to the Tribunal at a later date. There is nothing in the Tribunal's record that indicates that it took the applicant through these criteria at the interview and recorded her response. References to the criteria are found in the findings and reasons section and not in the "the Tribunal hearing" section where one would expect to see a report of such questions and answers. There is a reference at [87] [CB 255] where the Tribunal says:
"The Tribunal informed the applicant that if it finds that it is a bogus document and the applicant has not complied with s.103 of the Migration Act then the Tribunal has to consider the prescribed circumstances in Regulation 2.41."
And at [89] [CB 255]:
"The Tribunal informed the applicant that it had received submissions and her statutory declarations but also asked the applicant if there was anything she wanted to add in relation to matters under Regulation 2.41. The applicant referred to the recent TRA letter. The Tribunal asked the applicant if she had made any contribution to the community. She stated that she is not a member of any clubs or of a Nepalese association."
These extracts seem to me indicative of a finding that the Tribunal did not really address criteria 2.41(f) in a manner that could be said to be engaging with it. Rather than addressing each sub-paragraph of the criteria individually with the applicant it sought to utilise the applicant's responses to other questions and where there appeared to be no relevant response dealt with the matter in a one line manner found in the extracted paragraphs of the reasons.
21. Any other incidences [sic] of non-compliance by the visa holder known to the Minister
[140] There is no evidence of other instances of non-compliance by the applicant or of breaches of the law.
The respondent argues that this is a statement of a matter of fact which does not require any further elucidation. But the Tribunal's job is to consider whether the fact that there is no evidence of other instances of non-compliance should weigh upon its decision to cancel the visa. It is not for the court to criticise the Tribunal on the amount of weight it might apply, but the court should be satisfied that the Tribunal considered whether or not to apply it. The Tribunal's conclusions in relation to the whole application are found at [149] [CB 266]:
"The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act. Further, having regard to all the circumstances, the Tribunal is satisfied that the applicant's Subclass 880 visa should be cancelled."
That is all. There is not even a passing acknowledgment to the factors under Regulation 2.41. The respondent asks the court to find that the Tribunal did actively engage with all of those matters and conclude in respect of them that they did not outweigh the seriousness of the applicant's breach of s.103. Whilst this is subtly different from "excusing the Tribunal from its statutory obligation to enquire" Zhong at [85] and [86] I am not satisfied that this is an inference that I can make from the face of the document.
22. The time that has elapsed since the non-compliance
[141] The applicant applied to TRA for her skills to be assessed for migration on 1 May 2006 and applied for a Subclass 880 visa on 22 June 2006.
It would seem to me that the purpose of making this a matter that the Tribunal should take into account is because if, for instance, the non-compliance was minor and the time between the non-compliance and the review was lengthy, a decision maker might feel that the applicant's otherwise blameless continuation in the country under the terms of the visa would militate against its cancellation. There is nothing in the decision record that indicates that the Tribunal discussed this aspect of this matter with the applicant or, even without discussing it, gave some thought to the length of time between 2006 and 2009; and so again I could not be satisfied that there was sufficient engagement with the issue.
23. Any breaches of the law since the non-compliance and the seriousness of those breaches
[142] The Tribunal is not aware of any further breaches of the law.
Once again one might expect the Tribunal to indicate whether this factor was considered by it to be positive, neutral or negative in the decision making process but nothing is said and the matter was not addressed directly with the applicant.
24. Any contributions made by the holder to the community
[143] The applicant stated that she is not a member of any clubs or of a Nepalese association. She is working in retail at a chemist shop. The applicant provided a letter from TRA dated 10 February 2009 stating that her application for assessment of her skills as a Cook for the purposes of migration had been successful.
The applicant made much of the fact that the Tribunal did not consider that the applicant's payment of tax, whilst working, as [sic] a contribution to the community. This was a matter which loomed large in Zhong where the applicant made that suggestion to the Tribunal and the Tribunal responded:
"Against this evidence, the Tribunal has accepted that the review applicant has made some contribution to the community through the payment of tax and that he has been in Australia for a reasonably lengthy period."
The fact that the Tribunal may have overlooked a particular contribution that had not been put forward by the applicant can hardly lead to a finding of jurisdictional error. The court in Zhong found in the circumstances of that case that even though the Tribunal had noted that the applicant put this forward as a contribution it did not satisfy it that the Tribunal "specifically enquired into any contribution made by the holder to the community." I would not have taken that view in respect of the matters raised by this applicant if I could have seen how the Tribunal had treated them. But I cannot. The claims are merely set out without comment.
56 The foregoing analysis led the Federal Magistrate to conclude that the Tribunal had failed altogether to engage intellectually with the subject matter of any of subpars (f) to (k) of reg 2.41. At [25] of his reasons, the Federal Magistrate said:
25. I am of the opinion that the obligation to consider the matters in Reg. 2.41 should not just be noted. The Tribunal should at best clearly indicate how it has engaged with them and at the very least allow such an inference to be drawn from the whole of the content of the decision document. I regret that in an otherwise thorough examination of the applicant's situation, and in particular of the "bogus document" issue, the Tribunal failed to do this in respect of the four [sic] criteria 2.41(f) to (k) and thus fell into jurisdictional error by not taking into account relevant considerations. I will grant the applicant the constitutional writs sought and order that the First Respondent pay her costs which I assess in the sum of $5,800.00.