Minister for Immigration, Citizenship and Multicultural Affairs v JSMJ

Federal Court of Australia (Full Court)|2023-05-25|Before: Meagher JJ

Counsel for the Appellant: Mr G. Johnson SC with Mr B. McGlade

Counsel for the First Respondent: Mr L. Boccabella

Solicitor for the First Respondent: No Borders Law Group

BETWEEN: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS Appellant

ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

order made by: COLLIER, HALLEY AND MEAGHER JJ DATE OF ORDER: 25 May 2023

The name of the appellant be changed to "Minister for Immigration, Citizenship and Multicultural Affairs".
The appeal be allowed.
The orders made by the primary judge on 21 June 2022 be set aside and in lieu thereof it be ordered that: (a) The application for judicial review of the decision of the second respondent dated 17 December 2021 be dismissed; and (b) The applicant must pay the first respondent's costs, to be fixed by a Registrar if not agreed.
The first respondent must pay the appellant's costs of the appeal, to be fixed by a Registrar if not agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

INTRODUCTION 1 The first respondent was born in a refugee camp in Tanzania in 1994 and lawfully migrated to Australia in around 2006. His parents were born in Burundi and fled to Tanzania prior to the first respondent's birth. He has lived in Australia ever since, holding a Class XB Subclass 200 Refugee visa (visa). The visa was subject to mandatory cancellation by a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Minister) pursuant to s 501(3A) of the Migration Act 1958 (Cth) (Act) as the first respondent has a "substantial criminal record" as defined by s 501(7)(c) of the Act and therefore did not pass the character test. 2 On 12 February 2021 the first respondent sought revocation of the cancellation decision pursuant to s 501CA(4) of the Act (revocation request). On 19 August 2021, a delegate of the Minister decided not to revoke the cancellation decision. On 12 November 2021, the Administrative Appeals Tribunal (Tribunal) affirmed that decision. 3 On 18 December 2021, the first respondent made an application for judicial review of the Tribunal's decision on two grounds. First, that the Tribunal misconstrued s 500(6H) of the Act which resulted in wrongful exclusion of information relating to the first respondent's citizenship and a failure to assess whether the first respondent was a citizen of Burundi. Secondly, that the Tribunal constructively failed to exercise the review jurisdiction consigned to it by s 500 of the Act. 4 On 21 June 2022, the primary judge upheld that application and quashed the decision of the Tribunal. 5 The Minister appeals from that decision. The grounds of appeal relied upon by the Minister are as follows: 1. With respect to the Second Respondent's (Tribunal's) finding that the First Respondent was a national of Burundi, the learned primary judge erred in concluding that such a finding was not supported by any evidence and was illogical and irrational (Reasons for Judgement, [51], [57] and [62]-[63]). 2. The learned primary judge erred in concluding that the Tribunal had misunderstood or misapplied s 500(6H) of the Migration Act 1958 (Cth) and had committed errors resulting from, or connected with, such a misunderstanding/misapplication (Reasons for Judgement, [63]-[73]). 3. The learned primary judge erred in concluding that the errors identified by his Honour were material errors (Reasons for Judgement, [73]-[76]). 6 The first respondent contends that the primary judge's decision should be affirmed, but on different grounds, namely: Ground 1 The AAT failed to properly 'evaluate the representations' or the issues and thereby breached the obligation set out in Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 at [24] a. The AAT's evaluation is contained in one paragraph (at [244]) and is defectively scant and failed to grapple with the issues and representations; b. The remainder of the AAT reasons were largely derived from checklists drawn from ministerial direction or formulaic expressions which failed to properly evaluate the issues at hand and the representations. … Ground 2 To the extent the AAT relied upon material about 'returnees' to Burundi, the AAT failed to carry out a proper review because the first respondent was not born in Burundi, had never ever stepped foot in Burundi, had no friends, relatives or contacts in Burundi, had minimal language skills of any language spoken in Burundi and hence the past experiences or issues concerning 'returnees' was simply not material to the circumstances of the first respondent, by any definition the first respondent could never be a 'returnee' to Burundi (bolding in original omitted) 7 For the reasons set out below, we find that the appeal must be allowed.

key legislative provisions 8 Subsection 501(3A) of the Act provides that the Minister must cancel a visa if the Minister is satisfied that a person does not pass the character test due to having a substantial criminal record and that person is serving a full time custodial sentence. Section 501(7)(c) of the Act provides that a person has a substantial criminal record if they have been sentenced to a term of imprisonment for 12 months or more. 9 Pursuant to s 501CA(4) of the Act, the Minister may revoke a decision to cancel a visa under s 501(3A) if the person makes representations which satisfies the Minister that either the person passes the character test, or that there is another reason why the original decision should be revoked. 10 A person or body exercising powers under the Act is required to comply with any directions made by the Minister under s 499(1). In the present case, Direction No 90 - Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction 90), which commenced on 15 April 2021, is the relevant direction. 11 Paragraph 8 of Direction 90 sets out the primary considerations: (1) protection of the Australian community from criminal or other serious conduct; (2) whether the conduct engaged in constituted family violence; (3) the best interests of minor children in Australia; and (4) expectations of the Australian community. 12 Paragraph 9 of the Direction 90 sets out four other considerations to take into account: a) international non-refoulement obligations; b) extent of impediments if removed; c) impact on victims; d) links to the Australian community, including: i) strength, nature and duration of ties to Australia; ii) impact on Australian business interests 13 Subsection 500(6H) of the Act stipulates: If: (a) an application is made to the Tribunal for a review of a decision under section 501 or a decision under subsection 501CA(4) not to revoke a decision to cancel a visa; and (b) the decision relates to a person in the migration zone; the Tribunal must not have regard to any information presented orally in support of the person's case unless the information was set out in a written statement given to the Minister at least 2 business days before the Tribunal holds a hearing (other than a directions hearing) in relation to the decision under review.

background 14 In addition to the background facts provided in the introduction, the following information is also relevant to the grounds of appeal. 15 There were a number of documents before the Tribunal, including relevantly: Two notices from the Department of Home Affairs (Department) to the first respondent regarding an intention to consider cancellation of his visa under s501(2) of the Act dated 3 December 2019 and 25 February 2020; The notice of visa cancellation under s 501(3A) of the Act from the Department dated 9 February 2021; The personal circumstances form dated 12 February 2021, which was not comprehensively filled out by the first respondent. The spaces next to "place of birth (town/city and country)" and "current citizenship(s)" were left blank. Next to the question "Do you have any concerns or fears about what would happen to you if you were to return to your country of citizenship?" the first respondent ticked the box for yes. He provided a hand-written statement in response to that question, as follows: All the information I gathered over the years suggest that burundi is not a safe place for majority of the population that reside there, let alone someone that was raised in Australia. … It is commonly talked about in Burundi communities here in Australia, how regularly people are killed for no apparent reasons. The revocation request (which was undated). It attached a statement from the first respondent dated 15 June 2021, prepared with the assistance of his lawyer, stating at paragraphs [2] and [33] respectively: 2. I was born in Tanzania in 1994. I do not know my exact date of birth, but I generally provide a date of 1 January 1994 when requested. I came to Australia many years ago, when I was approximately 12 years of age. I do not know the exact circumstances that lead to us being granted refugee protection, but I do recall that it was very unsafe where I grew up. The Australian government granted my family refugee protection and I travelled to Australia with my mother, father, brothers, and sister. … The possibility of being returned to Burundi 33. I am aware that, if my Visa cancellation is not overturned, or if I am not granted another visa to remain in Australia, I am at risk of being returned to Burundi. I have never lived in Burundi. We do not have any connections with anyone there anymore; my grandmother died last year, and she was the last remaining contact we had in Burundi. I would have no-one to turn to for help in establishing myself. A submission from the Asylum Seeker Resource Centre, acting on behalf of the first respondent, dated 16 June 2021 (citizenship submission). That submission included the following statement (at [3]):[The first respondent] came to Australia with his mother, father, two brothers, and sister, on a Global Special Humanitarian (Class XB) (subclass 200) visa (Visa) in 2006, when he was approximately 12 years of age. [The first respondent] has Burundian citizenship, although he was born in 1994 in Tanzania. As a result of the ongoing civil war in Burundi, his family fled to Tanzania, where they lived in Mtablia refugee camp for many years, before being offered the opportunity to come to Australia as part of the humanitarian intake program. The notification of decision not to revoke visa cancellation decision made under s 501(3A) of the Act, dated 20 August 2021, attaching the statement of reasons from the Department dated 19 August 2021 which stated, with respect to international non-refoulement obligations owed by Australia in respect of the first respondent, the following (at [100]): [For] the purposes of this decision, I accept that there is a likelihood that non-refoulement obligations are enlivened in relation to [the first respondent], with the country of reference being Burundi. This means that his removal to Burundi may potentially breach these obligations. I also accept that there is currently no known prospect of removing [the first respondent] to any other country. The application to the Tribunal for review, dated 27 August 2021; The first respondent's Statement of Facts, Issues and Contentions (SFIC) dated 27 September 2021 prepared by his solicitor. Paragraph [1] of the SFIC states: The [first respondent] was born in Tanzania in 1994 to his Burundi parents who fled Burundi as a result of the ongoing civil war. The family, consist of his mother, father, two brothers, sister and the [first respondent], lived in refugee camp for many years before being granted a Global Special Humanitarian (Class XB) (subclass 200) visa in March 2016, as part of the UN humanitarian resettlement program. The Minister's SFIC dated 14 October 2021; Queensland Corrective Services Offender Case File dated 4 June 2021; Transcript of proceedings at the District Court and Magistrates Court dated 3 February 2015, 13 July 2016 and 25 January 2021; Various letters of support from family and friends; and Various health records, workbooks and certificates of attendance. 16 At the Tribunal hearing, where the first respondent in this proceeding was the applicant, the following exchange occurred: Ms Zhao: Okay. How about in terms of you were born in Tanzania and would the Burundi government take you back as a Burundi citizen? Do you know anything about that? Applicant: I don't think they would, because I don't have the date of birth. Because I was born in Tanzania and I don't think that Tanzania would take me because apparently Tanzania is closed down. And, yes, I don't think - I don't even know what they would do to me. Because they will ask me where I was born, and if I say I was born here they will ask me for the documents, and mum and dad don't have the documents - we didn't come with the documents. Ms Zhao: So what do you mean? That you don't have birth certificate? Applicant: No. I don't have birth certificate. Neither my dad or my mum, none of them do. Ms Zhao: So you reckon they're going to have issues to identify who you are to be able to take? Applicant: Yes. Ms Zhao: No birth certificate. Right? Applicant: Yes, that's why we really - our date of birth is different, because we don't have the birth certificate. Ms Zhao: Yes? Applicant: Yes. Ms Zhao: All right. So even proving you are a Burundi is going to be challenging. Is that right? Applicant: No (indistinct). Ms Zhao: For the government, the Burundi government, as well? Applicant: Yes. Ms Zhao: Even though Australia already accepted you're Burundian. But for them, to recognise you are their citizen, that's going to be challenging? Applicant: Yes. Member: What's that based on? What information or what source are you relying on there? Ms Zhao: I think they will - - - Member: No, I'm asking the applicant. He's saying, he's making all these statements about the law, the legal situation in Burundi. What's that based on? Have you looked it up on the website? Has a lawyer got advice for you? Have you called the embassy? What's all this based on?---Me? Yes?---Well, my family. I just talked to my family about it and they just told me how things are. All right. Maybe Mr Morris might want to dig a bit deeper into that. All right. Mr Morris: Can I just say - and I really don't mean to disturb my friend's flow - but this is not an issue that's ever been raised previously - - - Member: I agree. Mr Morris: - - - the proposition that the applicant would not be accepted by his country of citizenship. So I am in a bit of a difficult position here, because this is the first time that we're hearing that this might be an issue. Member: And it's also really traversing the two-day rule, I think, because it hasn't been - I guess, there's evidence being put forward that benefits - well, could benefit - the applicant's case, and it wasn't provided two clear business days before the hearing. And, Ms Zhao, you can see that it puts the respondent in a really difficult position, because they have almost no time to get any sort of information and evidence about this. And also, the evidence that the applicant is giving just seems like speculation and hearsay. So, I'm not going to consider that evidence and I won't allow any further questioning on that topic. Ms Zhao: Okay. So is anything else you want to say about you going back to Burundi?---Yes, I do. My biggest worry is that my son will pay for my crime and grow up without a father. At that time, I abused alcohol and made a very bad decisions. I had time to learn about myself and my addiction. It is a impact on others. I will (indistinct) AA and my church and my brother and sister. My life is about my son now. I was a boy, now I'm ready to be a father. That's all I got to say. 17 In the course of this proceeding, information came to light that the citizenship submission, which was before the Tribunal, was not before the primary judge. On 8 February 2023, Collier J granted leave (with the consent of the first respondent) to admit the citizenship submission into evidence. 18 Before the primary judge the page in the Court Book identified as the citizenship submission was an unreadable mix of symbols and letters. Counsel for the Minister told the Court that there had been an error in the compilation of the Court Book which resulted in the page being illegible before the primary judge. He and counsel for the first respondent agreed that, to the best of their knowledge, the corrupted page had not been brought to the primary judge's attention, although it was not possible to be certain as no transcript had been made of the hearing below.

REASONS OF THE TRIBUNAL 19 In its reasons the Tribunal addressed, at length, the primary and other considerations as required by Direction 90. The Tribunal was satisfied that the first respondent had a substantial criminal record contemplated by s 501(7)(c) of the Act and therefore did not pass the character test as defined in s 501(6) of the Act. It summarised his offending at [80]-[82] as follows: The [first respondent] committed some 24 offences in a period of six years, and he has three pages of traffic infringements that includes at least two drink-driving offences. His criminal offending includes numerous assaults, dishonesty offences, contraventions of domestic violence orders, and offences involving obstructing police or failing to obey police directions. The [first respondent] has breached probation, parole and a suspended sentence. His offending is frequent and there is a trend in increasing seriousness that peaked with his assault on Mr J with followed by speeding while unlicensed and drunk. The [first respondent] committed violent crimes against his partner, another female, his brother, a police officer who was performing his duty, and other unknown victims. The [first respondent's] violence included punching, kicking, slapping, biting and breaking a bottle over Mr J's head. Family violence and violence against women are regarded very seriously. Kicking a police officer in the jaw is extremely serious. It is not only an attack on an individual member of the Australian community, it is an attack on the apparatus of the criminal justice system that exists to protect the Australian community and is therefore an attack on the Australian community as a whole. On four separate occasions the [first respondent] has been sentenced to periods of imprisonment. Imprisonment is a last resort in the hierarchy of available sentencing options. The comments made by the various judicial officers who passed sentence on the [first respondent] indicate how seriously they considered his offending. It is also apparent that he was given warning after warning, and that public resources were expended on him under the auspices of parole and probation to no avail. 20 At [157] of its reasons, the Tribunal made a finding that the first respondent is a Burundi citizen, stating: At no time has it been asserted by the [first respondent], or on his behalf, that he is not a citizen of Burundi. This does not appear to be in dispute. Accordingly, the receiving country is Burundi. 21 At [159] of its reasons, the Tribunal concluded that s 500(6H) of the Act precluded it from taking into account the evidence set out at paragraph [16] as it was not provided to the Minister in a document two business days before the hearing. 22 On weighing up the considerations, the Tribunal determined at [244] that the primary considerations of protection of the Australian community, family violence and expectations of the Australian community weighed heavily against revoking the mandatory cancellation of the visa. It concluded that those considerations outweighed the fact that the first respondent would face serious hardship and a risk of harm if removed to Burundi, as well as the negative impact any such removal would have on his family members. At [245], the Tribunal determined that it could not exercise the discretion in s 501CA(4) of the Act to revoke the mandatory cancellation of the first respondent's visa.

reasons of the primary judge 23 The grounds for judicial review before the primary judge were: 1) a misconstruction of s 500(6H) of the Act and a consequential wrongful exclusion of information from the [first respondent] as to his ignorance of his citizenship and a related failure to make an assessment as to whether the [first respondent] was a citizen of Burundi; and 2) a constructive failure by the Tribunal to exercise the review jurisdiction consigned to it by s 500 of the Act. 24 The second ground was framed particularly by reference to paragraph [244] of the Tribunal's reasons which purported to weigh all of the considerations in accordance with Direction 90. In considering the form of the Tribunal's reasons, the primary judge concluded that while the analysis was "very compressed" (at [19]), when considered in the context of the Tribunal's reasons as a whole, they did not constitute judicial error (at [25]). This was so, taking account of paragraphs [124], [125], [131], [153] and [154] of the Tribunal's reasons which the primary judge concluded disclosed consideration and evaluation of the representations by the first respondent such as to provide a "rational explanation" as to why the Tribunal was not satisfied there was "another reason" for revoking the cancellation decision. In reaching that conclusion, the primary judge considered the evolution of the authorities regarding the task of considering representations with respect to the revocation of a cancellation decision: Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; 267 FCR 628, Minister for Home Affairs v Omar [2019] FCAFC 188; 272 FCR 589, DQM18 v Minister for Home Affairs [2020] FCAFC 110; 278 FCR 529, Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259, Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; 400 ALR 417, Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41; 395 ALR 403. 25 Thus, the first respondent failed on the second ground before the primary judge. 26 In relation to the first ground, the primary judge set out particular extracts of what he knew to be before the Tribunal including paragraph [1] of the first respondent's SFIC and the reasons provided by the Department dated 19 August 2021 insofar as they dealt with international non-refoulement obligations owed by Australia, placing particular emphasis on "the country of reference being Burundi" and that the delegate accepted that there was "no known prospect of removing [first respondent] to any other country". The primary judge also set out paragraphs [2] and [33] of the statement attached to the revocation request, as detailed at [15] above considered the spaces left blank on the personal circumstances form to be significant. Having reviewed those documents, but not the citizenship submission (which was not before his Honour) the primary judge concluded that there had been no positive assertion on the part of the first respondent as to being a citizen of the Burundi "throughout the decision-making continuum" (at [50] and [56]). 27 At first instance the Minister submitted that the first respondent's citizenship could be inferred, in line with the approach adopted by Jagot J in AZK15 v Minister for Immigration and Border Protection [2015] FCA 1444 at [40]. The primary judge rejected that submission, distinguishing AZK15 on its facts, albeit without the benefit of the citizenship submission. The primary judge noted that there may be circumstances where the Tribunal might draw a conclusion regarding a person's citizenship in the absence of a passport or identity documents, but he did not consider this to have been open to the Tribunal in this case. The primary judge drew the following conclusions at [51]-[52], [56] and [57]: Notwithstanding the absence of any admission by the [first respondent] of his citizenship of Burundi, or, as far as the material before the Tribunal reveals, any evidence thereof, the delegate acted on an assumption that the [first respondent] was a citizen of that country. And so, too, did the Tribunal. A starting but not end point in resolving the competing submissions is that the effect of s 33(1)(c) of the AAT Act was that the Tribunal was not bound by the rules of evidence but permitted to inform itself on any matter in such manner as it thought appropriate. The Tribunal did not need (although it could certainly act on) evidence admissible in a court as to the content of the law of Burundi in relation to citizenship and of its application to the circumstances of the [first respondent] as the Tribunal found them to be in order, logically and rationally, to conclude that he was a citizen of that country. To hold otherwise would be to commit the error of borrowing "from the universe of discourse which has civil litigation as its subject": Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, at 282. … Conceivably, a conclusion as to a person's citizenship might be made administratively without any passport or other identity documents, just on the basis of an apparently truthful statement by the person (or another, perhaps a parent) as to their place of birth and confirmation by an Australian diplomatic or other source that persons so born acquire that country's citizenship. Or there might be an apparently truthful statement as to a parent's citizenship and like confirmation that such parentage is a foundation for a particular citizenship. A diplomatic source may not be necessary administratively. Other material sourced in open source foreign government websites or textbooks might, for example and without being exhaustive, offer an insight into the content of the citizenship law of the country concerned. However, the Tribunal had no such material before it. It did not even have a direct statement by the [first respondent] that he was a citizen of Burundi. Indeed, as already noted, on the one occasion when such a direct admission was solicited, via item 2 on the representation form, the [first respondent] left the response space blank. The material before the Tribunal never rose higher than an assumption on the part of the [first respondent], shared with the Minister's delegate, the Minister's legal representative before the Tribunal and, it must be acknowledged, the [first respondent's] legal representative before the Tribunal, that he was a citizen of Burundi. 28 The primary judge considered that the Tribunal failed to undertake its review function as it was required to address the representations of the first respondent or "to consider and understand them" (Viane at [13]). 29 The primary judge considered the exchange referred to at para [16] above amounted to a representation that the first respondent professes no citizenship, and merely assumed that he would be sent to Burundi if the cancellation of his visa was not revoked (at [61]). In that regard, the primary judge considered that the Tribunal's reliance on s 500(6H) of the Act in precluding it from considering the representation was a misconception of its intended effect, leading to a failure to carry out its review function. The primary judge, applying Uelese v Minister for Immigration and Border Protection [2015] HCA 15; 256 CLR 203, was of the view that the Tribunal had "not only declined to act upon the information which was put before it" but also "failed to make even the most cursory enquiry to follow-up on this information" (at [69]). 30 Thus, the primary judge held that the Tribunal acted illogically and irrationally and fell into jurisdictional error by determining a country of reference, notwithstanding the blanks left on the personal circumstances form, the oral evidence given by the first respondent regarding his country of reference and what the primary judge considered to be an absence of supporting material,

GROUND ONE: WHETHER THE PRIMARY JUDGE ERRED IN CONCLUDING THAT THE TRIBUNAL'S FINDING THAT THE FIRST RESPONDENT WAS A NATIONAL OF BURUNDI WAS NOT SUPPORTED BY EVIDENCE AND WAS ILLOGICAL AND IRRATIONAL 31 The Minister's submissions in chief were filed prior to the uncorrupted page of the citizenship submission being admitted into evidence. As a result, there was some shift in emphasis between those submissions, the submissions in reply and the oral submissions. 32 By the hearing, the Minister's primary submission was that the uncorrupted page of the citizenship submission with its admission that the first respondent "has Burundian citizenship, although he was born in 1994 in Tanzania" was before the Tribunal, and therefore it was open to the Tribunal to make findings regarding the first respondent's citizenship. The Minister submitted that the admission in the letter was of the sort the primary judge was seeking, and overcame his Honour's conclusion that the Tribunal was acting without evidence of the first respondent's citizenship (at [51]) or otherwise on an assumption in that regard (at [57]). 33 The Minister further submitted that the primary judge had erred in considering whether the absence of a positive admission of Burundi citizenship meant there was insufficient evidence to conclude the first respondent was a Burundi citizen. In the Minister's submission, the correct question was whether a logical, rational Tribunal could reach the conclusion arrived at upon the same material. 34 In oral submissions, counsel for the first respondent acknowledged that the uncorrupted page in the citizenship submission was a weakness in his case but submitted that it was not fatal. He submitted that an obvious question as to the first respondent's citizenship was raised before the Tribunal given that he had never been to Burundi, had no birth certificate and his parents had no birth certificates. The first respondent submitted that it should have been obvious to the Tribunal that he would have difficulty proving his citizenship of Burundi to the point where he may not hold such citizenship. The first respondent submitted that at para [75] the primary judge correctly identified those difficulties and concluded that the Tribunal had fallen into jurisdictional error. The Minister submitted that even absent the admission referred to in the citizenship submission, the first respondent's case proceeded on the basis that he is a citizen of Burundi. 35 The first respondent questioned whether the author of the citizenship submission containing the admission could make a speculative assertion on a technical matter such as Burundi law when she had no obvious expertise in that regard. In any case, counsel submitted, the Tribunal should have made enquiries regarding the law of citizenship in Burundi. 36 Further, the first respondent's counsel cavilled with the use by the Tribunal of words such as "returning" and "send back", and the use by the delegate of "home country". His submission was that those words were not appropriate in circumstances where the first respondent has never lived in Burundi and it has never been his home, and demonstrates an erroneous assumption that the first respondent would be able to be sent to Burundi. Counsel submitted that the Tribunal failed to consider the possibility that the first respondent could face indefinite detention if he were unable to return to Burundi due to a lack of evidence regarding his citizenship. 37 Counsel for the Minister submitted that the use of such phrases was a manner of speaking, perhaps loose or imperfect, but not an indication that the Tribunal was unaware that the first respondent had never been to Burundi. We accept the Minister's submission in that regard. 38 The Minister also submitted that the Tribunal was aware that the first respondent could be at risk of indefinite detention, albeit by way of non-refoulement obligations rather than inability to prove citizenship status. The Minister submitted that this prospect did not dissuade the Tribunal from making a decision not to revoke the mandatory visa cancellation, and therefore it is unlikely that the prospect of indefinite detention for another reason would materially have affected the decision. We also accept the Minister's submission in that regard. 39 The Full Court of this Court in Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160 at [45] (Perram, Murphy and Lee JJ) relevantly considered what may establish jurisdictional error in the context of an administrative decision maker: Illogicality, irrationality or legal unreasonableness in the reasons for an administrative decision may establish jurisdictional error, as may a failure to give proper, genuine or realistic consideration to a significant matter. An illogical or irrational administrative decision, or an illogical or irrational finding of fact or reasoning along the way to making the decision, may establish jurisdictional error if, for example, the decision or finding is not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. Making a finding on a fact or issue in the application by drawing an inference or a conclusion which lacks a logical connection with the evidence might also be described as failing to give proper, genuine and realistic consideration to the fact or issue. However, any such decision or finding will not involve jurisdictional error if a reasonable decision-maker could reach that decision or finding on the same material: SZMDS at [130]-[132] and [135] per Crennan and Bell JJ and at [78] per Heydon J. As Allsop CJ observed in Minister for Immigration & Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1 at [21] the question is "whether a decision-maker could reasonably come to the conclusion" reached. If the conclusion is one upon which reasonable minds can differ, it will not be legally illogical, irrational or unreasonable. 40 The role of the Full Court sitting in the appellate jurisdiction was considered in Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 264 CLR 541 at [18], [20], [25]-[28], [55]-[56], [117], [130], [154]-[156]. Kiefel CJ at [18] and Gageler J at [20] held: The question for the Full Court was whether the Tribunal's decision was legally unreasonable and whether the primary judge's reasoning in this regard was correct. It was necessary for it to decide these questions for itself rather than to defer to what the primary judge had held and require the Minister to identify some error in her Honour's reasoning. … The answer is that the appellate court must reach its own conclusion as to whether the administrative decision was unreasonable. That is to say, the appellate court must determine not whether the conclusion of the primary judge was open but whether the conclusion of the primary judge was, in the opinion of the appellate court, the right conclusion. 41 In our view, it was open to the Tribunal to find on the evidence before it, including the citizenship submission, that the first respondent was a citizen of Burundi. That finding was not illogical, irrational or unreasonable. There was no obligation on the Tribunal to act beyond the evidence or deal with any contrary evidence, if any could be said to exist. 42 Further, there was no obligation on the Tribunal to set out in detail the evidence upon which it relied when finding that the first respondent was a Burundi citizen (Minister for Immigration, Citizenship and Multicultural Affairs v RGKY [2022] FCAFC 117 at [109] (Stewart and Goodman JJ); Minister for Home Affairs v Buadromo [2018] FCAFC 151; 267 FCR 320 at [48]-[49] (Besanko, Barker and Bromwich JJ); Healey v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 188 at [36] (Burley, Thomas and Abraham JJ)). 43 As to the first respondent's submission that the admission contained in the citizenship submission could not be accepted as its author was not an expert in Burundi law, it is well established that there was no obligation on the Tribunal to consider international law with respect to citizenship and form its own view on that law (AZK15 at [32]). Whilst the primary judge reached a different conclusion at [56] and [57], his Honour did not have the benefit of the citizenship submission. We respectfully take the view that having the benefit of the citizenship submission before it permitted the Tribunal to make a finding as to the first respondent's citizenship, and therefore no obligation arose as to the specific laws relating to Burundi. 44 The absence of a positive statement such as that contained within the citizenship submission, undoubtedly settled the issue for the primary judge. However, even without the admission contained in the citizenship submission, on a fair reading of all the other material before the Tribunal as set out in paragraph [15] above, the conclusion that the first respondent was a Burundi citizen was one which the Tribunal, acting rationally and logically, could have reached. As the Minister submitted, the first respondent's own case proceeded on the basis that he was a citizen of Burundi, and as is set out below we do not consider the blank spaces on the personal circumstances form to amount to representations nor do we consider that the Tribunal erred in precluding any oral statements that might have amounted to representations. 45 Ground one is made out.

GROUND TWO: whether the primary judge erred in concluding that the Tribunal misunderstood or misapplied subsection 500(6H) of the Act 46 The first respondent agreed with the primary judge's reasoning at [63]-[71]. Relying on Uelese at [54]-[57], the first respondent submitted that evidence, including those parts of the personal circumstances form which the first respondent left blank, was provided to the Tribunal more than two business days prior to the hearing. Counsel submitted that this calls into question the first respondent's citizenship. Therefore the Tribunal, in relying on s500(6H), erred by preventing the first respondent from leading evidence regarding his difficulty in proving citizenship of Burundi. Counsel submitted that this amounted to an unauthorised exercise of power such that the first respondent was denied the opportunity to present his case in relation to international non-refoulement obligations and the legal implications of indefinite detention. Furthermore, counsel submitted that there was ample opportunity for the Tribunal to adjourn the hearing and take into account the evidence. 47 The Minister submitted that there could be many reasons why parts of the first respondent's personal circumstances form were left blank, and doing so does not amount to a representation as determined by the primary judge at [61] and [71]. 48 A number of authorities have explored what amounts to a representation. In Viane at [13], the majority of the High Court noted that representations are made "about why that cancellation decision should be revoked". In that regard the Minister submitted that a mere assertion that the first respondent may have difficulty proving his citizenship is not a "reason" why his visa should be restored. Further, the Full Court in Ali v Minister for Home Affairs [2020] FCAFC 109; 278 FCR 627 at [78] (Collier, Reeves and Derrington JJ) stated that a representation must be "clearly expressed and significant", and in AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89; 261 FCR 503 at [13] (Collier, McKerracher and Banks-Smith JJ) that, "The Tribunal is only required to consider such claims where they are either the subject of substantial clearly articulated argument, relying on established facts; or clearly emerge from the materials". We are not satisfied that the blank spaces on the personal circumstances form amount to a representation of the kind mentioned above, nor that any concern that the first respondent may have had about proving his citizenship was clearly expressed or clearly emerged from the material before the Tribunal, noting that for the reasons set out below the information referred to in the exchange set out at [16] was not before the Tribunal. 49 The Minister submitted that as no written statement was provided to the Minister by the first respondent regarding the difficulty he might have evidencing his Burundi citizenship, the Tribunal was correct in refusing to consider the evidence consistent with the Full Court's decision in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v DOM19 [2022] FCAFC 21; 289 FCR 499 (Mortimer, Halley and O'Sullivan JJ). The Minister submitted that the primary judge's reasoning at [63]-[71], which purported to apply Uelese, was misdirected as, in that matter, the relevant oral evidence was taken into account as it was adduced under cross-examination, rather than as "testimony-in-chief" as it was in this matter. The Minister submitted that the proper construction of Uelese and DOM19 together lead to the conclusion that the Tribunal did not err in considering s 500(6H) to have a preclusory effect in this case. Furthermore, the Minister submitted that no application was made by the first respondent or his representative to adjourn the Tribunal hearing. 50 At [59] of Uelese, French CJ, Kiefel, Bell and Keane JJ provided the context in which s 500(6H) is applied: The purpose of ensuring the expeditious determination of applications for review under s 500 of the Act by requiring that the Minister be given "an opportunity to answer the case to be put by the applicant for review without the necessity of an adjournment of the hearing"34 , which might result from a late change to the applicant's case, is not compromised by accepting that the preclusory effect of s 500(6H) is confined to information presented by or on behalf of the applicant for review in support of his or her case. Where information is adduced in cross‑examination by the Minister or in response to inquiry by the Tribunal itself, it is inherently unlikely that the information is provided as part of an attempt to manipulate or delay the review process. 51 In DOM19, the Full Court of this Court, having regard to the decision in Uelese, concluded at [21] that "witness testimony - oral testimony in Chief - is the subject of the restriction in s 500(6H)". At [25], the Full Court determined that the written statement, the subject of s 500(6H), does not have to contain all the details, nor be made by the person to give evidence - it may be an outline, and, at [27]-[28], it may not be something which requires an "extensive search" or the "piecing together" of information from various sources to ascertain the witnesses evidence. 52 The evidence referred to in paragraph [16] above is oral "testimony-in-chief". The answers provided by the first respondent were to questions posed by his representative, they were not elicited in cross-examination or as a result of questions from the Tribunal. They raised an issue not otherwise notified to the Minister in accordance with s 500(6H). Accordingly, in our respectful view, the primary judge misinterpreted s 500(6H) in the context of Uelese and DOM19. 53 It follows that the Tribunal did not fall into the error which the primary judge considered might be characterised, at [72] of the primary judge's reasons, in a number of ways, such as "a failure to afford the [first respondent] natural justice" or "a failure to exercise the jurisdiction consigned to it". It follows that the resultant errors identified by the primary judge do not flow. 54 Ground two is made out.

GROUND THREE: Materiality 55 As the Minister succeeds on grounds one and two, the issue of materiality does not arise.

Ground 1: The Tribunal failed to properly 'evaluate the representations' or the issues and thereby breached the obligation set out in Plaintiff M1 56 The first respondent submitted that the evaluation contained at paragraph [244] of the Tribunal's reasons did not comply with the requirements set out at [24] by the plurality in Plaintiff M1, which relevantly states: Consistently with well-established authority in different statutory contexts, there can be no doubt that a decision-maker must read, identify, understand and evaluate the representations. Adopting and adapting what Kiefel J (as her Honour then was) said in Tickner v Chapman, the decision-maker must have regard to what is said in the representations, bring their mind to bear upon the facts stated in them and the arguments or opinions put forward, and appreciate who is making them. From that point, the decision-maker might sift them, attributing whatever weight or persuasive quality is thought appropriate. The weight to be afforded to the representations is a matter for the decision-maker. And the decision-maker is not obliged "to make actual findings of fact as an adjudication of all material claims" made by a former visa holder. 57 That argument was advanced before the primary judge and, in our respectful view, was correctly dismissed at [15]-[25] of the primary judge's reasoning. We have had the considerable advantage of reading the further comments of Halley J, in draft, with respect to the first ground of the notice of contention. We agree with those reasons. 58 Ground one of the notice of contention is not made out.

Ground Two: The Tribunal failed to carry out a proper review 59 To the extent that this ground was pressed, the submissions are already covered at paragraphs [36] and [46]. For the reasons already expressed, we do not consider that the Tribunal failed to carry out a proper review. The Tribunal's task is not to determine the first respondent's citizenship, rather it is to consider, in the context of the non-refoulement obligations and other matters specified by Direction 90, what is the practical effect of not revoking the cancellation decision. In this case, the Tribunal was clearly aware of and took account of the problems the first respondent would face if he were to be moved to Burundi. Despite this, the Tribunal did not view this as warranting revocation of the cancellation decision. 60 Ground two of the notice of contention is not made out.

conclusion 61 For the reasons given above, the appeal is to be allowed based on grounds one and two, and it is unnecessary to deal with ground three. Grounds 1 and 2 of the notice of contention are not substantiated. 62 The first respondent must pay the Minister's costs of the appeal, to be fixed by a Registrar if not agreed. I certify that the preceding sixty-two (62) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Collier and Meagher.

HALLEY J: 63 I have had the benefit of reading, in draft, the reasons for judgment of Collier and Meagher JJ. I agree with the orders that their Honours propose and the reasons that they advanced in support of those orders. I wish to make some further brief observations as to why the first contention advanced in the first respondent's notice of contention should not be accepted. 64 The first contention in the notice of contention is directed at the evaluation undertaken by the Tribunal in the following paragraphs of its reasons: 224. I am now required to weigh all the Considerations in accordance with the Direction. The Applicant will face serious hardship and risk of harm if removed to Burundi. His removal will negatively impact members of his family to varying degrees. Given those matters, compelling reasons are required to justify a non-revocation decision. In this case there are compelling reasons which are captured in Primary Considerations 1, 2 and 4. 245. I cannot exercise the discretion in s 501CA(4) of the Act to revoke cancellation of the Applicant's visa. 65 The first respondent contends that the Tribunal failed to properly "evaluate the representations" or the issues in these paragraphs and thereby breached "its obligations set out" in Plaintiff M1 at [24] (Kiefel CJ, Keane, Gordon and Steward JJ). 66 The first respondent relies on the following particulars in respect of its first contention: (a) The AAT's evaluation is contained in one paragraph (at [244]) and is defectively scant and failed to grapple with the issues and representations; (b) The remainder of the AAT reasons were largely derived from checklists drawn from the ministerial direction or formulaic expressions which failed to properly evaluate the issues at hand and the representations. 67 The plurality in Plaintiff M1 made plain at [24] that the decision maker must "read, identify, understand and evaluate" the representations made by a former visa holder seeking to revoke a cancellation decision. 68 The first respondent contended in his written submissions that the Tribunal's evaluation of his representations was limited to [244] and [245] of its reasons. He submitted that in those paragraphs, the Tribunal (a) provided no explanation of why Primary Considerations 1, 2 and 4 amounted to compelling reasons, (b) fell into error by reaching a decision based on "decisional checklists or formulaic expressions", and (c) failed to give proper, genuine and realistic consideration to the merits of his case, including by failing to apply an active intellectual process. 69 The first respondent also contended in his written submissions, in support of the first contention in the notice of contention, that the Tribunal overlooked that he had stated "fairly and squarely in the material to the delegate that he had no citizenship". This contention was misconceived. As explained by Collier and Meagher JJ in their reasons at [44], no representation was made to that effect by the first respondent. Rather, the first respondent's case before the Tribunal proceeded on the basis that the first respondent was a citizen of Burundi. The Tribunal was only required to consider matters that were clearly articulated or clearly arose on the materials before it: Plaintiff M1 at [25]; ECE21 v Minister for Home Affairs [2023] FCAFC 52 at [8] (Mortimer J, as her Honour then was, Colvin and O'Sullivan JJ). The citizenship status of the first respondent fell into neither category. 70 I am otherwise satisfied that the Tribunal has not failed to evaluate properly the representations made by the first respondent or the issues raised by him. A "proper evaluation" of representations requires a decision maker to (a) identify the relevant representations that it must take into account, (b) identify the principal evidence before it relevant to each representation and the submissions advanced as to their significance, (c) express a qualitative conclusion as to the weight or persuasive quality that it places on each representation, and (d) in the context of those qualitative conclusions, make an overall evaluative assessment of the representations, which may have given rise to competing considerations, in order to make its decision: Plaintiff M1 at [24]. Further, in many cases it would not be possible to isolate the objective significance of each representation to the overall evaluative assessment to be undertaken as each representation may often inform the relative significance of other representations. For the following reasons, I am satisfied that this was the approach undertaken by the Tribunal in this case. 71 First, the Tribunal's reasoning at [244]-[245] must be read in the context of its reasons as a whole. I do not accept that the Tribunal's evaluation of the first respondent's representation can be said to be confined to those paragraphs. The statement at [244] that there are "compelling reasons" in this case to justify a non-revocation decision which "are captured in Primary Considerations 1, 2 and 4" must, in context, be construed as a cross-reference to the earlier consideration by the Tribunal of "Primary Consideration 1 - Protection of the Australian Community", "Primary Consideration 2 - Family Violence" and "Primary Consideration 4 - The Expectations of the Australian Community" in Direction 90. It would be applying an entirely artificial and impermissibly strained approach to the reasons of a Tribunal member to construe the words as only referring to the text of those Primary Considerations. 72 The Tribunal made the following findings with respect to Primary Considerations 1, 2 and 4 which were set out by the primary judge at [23] of his reasons: (a) In relation to Primary Consideration 1, at [124] and [125]: 124. While I accept that the Applicant has a very great desire to avoid deportation, I am not persuaded that this means he will not offend in future. I consider there to be a moderate risk that the Applicant will commit further offences of the kind that he has committed. Conclusion: Primary Consideration 1 125. Primary Consideration 1 weighs heavily against revocation of the cancellation of the Applicant's visa (b) As to Primary Consideration 2, at [131]: 131. The fact that the Direction devotes this Primary Consideration to family violence, in addition to emphasising the seriousness of acts of family violence and violence against women and children in Primary Consideration 1, indicates that increased significance is to be given to such conduct. The fact that some of the Applicant's offending was family violence adds to the reasons not to revoke the cancellation of the visa. (c) As to Primary Consideration 4, at [153] and [154]: Analysis - Allocation of Weight to this Primary Consideration 4 153. Accordingly, in assessing the weight attributable to Primary Consideration 4, it is necessary to have regard to the following matters: • the applicant moved to Australia when he was a child of approximately 12 years of age. He is now approximately 27 years old; • the applicant commenced offending seven years after moving to Australia; • the applicant has engaged in serious violent offending including family violence and an assault on a police officer, and he has committed traffic offences of a kind that increase the risk of harm to other road users; • there is a moderate risk he will re-offend; • his offending demonstrates a disregard for the laws and legal apparatus regulating the community that he seeks to re-enter; • he has a limited employment history and there is no evidence of other contribution to the community outside his family; and • if he is removed to Burundi, it will adversely affect him, his son, Ms E, and his immediate and extended family as discussed in Primary Consideration 3 and the Other Considerations. Conclusion: Primary Consideration 4 154. Primary Consideration 4 weighs heavily in favour of non-revocation of the cancellation of the Applicant's visa. 73 Second, when [244] and [245] are read in conjunction with these paragraphs from the Tribunal's reasons, it is clear that the Tribunal read, identified, understood and evaluated the representations made by the first respondent in a manner sufficient to satisfy its obligations set out in Plaintiff M1 at [24]. It is readily apparent that the Tribunal found compelling reasons for non-revocation of the cancellation decision due to the "moderate risk" of the first respondent committing "further offences of the kind that he has committed", including a risk of further acts of family violence. It weighed the serious hardship and risk of harm to the first respondent if he were removed to Burundi, together with the negative impact on his family, to varying degrees, against its earlier conclusions that (a) Primary Considerations 1 and 4 weighed heavily in favour of non-revocation of the cancellation decision, and (b) Primary Consideration 2 added to the reasons not to revoke the cancellation of the first respondent's visa. 74 References by the Tribunal in its reasons at [244] to the Primary Considerations, given its earlier analysis and conclusions as to the weight it gave to each of them, do not establish that the Tribunal reached its decision based on "decisional checklists or formulaic expressions". 75 Third, the first respondent's contention that the Tribunal failed "to give proper, genuine and realistic consideration to the merits of his case" only served to highlight the inherent danger in using labels of that character in the context of the judicial review of administrative decisions. These labels invite impermissible consideration of de-facto merits review: Plaintiff M1 at [26]; Kwatra v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCAFC 194 at [14] (Markovic, Cheeseman and Hespe JJ). It is for the decision maker, having demonstrated that it has identified and understood the representations being made, to then determine, acting reasonably and rationally, the particular significance to be given to each matter in the course of making their decision: ECE21 at [7]. In this case, the first respondent has not identified any representation that the Tribunal failed to identify or understand. As explained above, the alleged absence of citizenship representation was never made by the first respondent to the Tribunal. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Halley.

Migration Act 1958(Cth)ss 499(1), 500, 501(2), 501(3A), 501(7)(c), 501CA(4)

At a glance

Court

Decision date

Before

Source

Judgment (20 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (22)

Cited By (3)