Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Jokic

1. The decision of the second respondent dated 21 February 2020 be set aside.
2. The matter be remitted to the second respondent for determination in accordance with law.
3. The first respondent pay the applicant's costs as agreed or taxed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

JAGOT J: 1 The applicant (the Minister) seeks an order quashing a decision of the second respondent (the Tribunal) for jurisdictional error (Jokic and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 279) and an order remitting the matter to the Tribunal for determination in accordance with law. 2 The Tribunal set aside the decision of the Minister's delegate not to revoke the cancellation of the first respondent's visa and remitted that matter to the Minister "with the directions as apparent in the reasons for decision". The directions required the Minister to obtain further information to assist the Tribunal in making its decision. 3 There is no dispute that in so doing the Tribunal was acting in accordance with s 43(1)(c)(ii) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) which provides that: (1) For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision and shall make a decision in writing: … (c) setting aside the decision under review and: (i) making a decision in substitution for the decision so set aside; or (ii) remitting the matter for reconsideration in accordance with any directions or recommendations of the Tribunal. 4 The Minister alleges that the Tribunal committed a jurisdictional error because, in so doing, the Tribunal misconstrued s 501CA(4) of the Migration Act 1958 (Cth) (the Migration Act) by, in effect, assuming that the Minister (and thus the Tribunal) had an obligation to investigate and find evidence as to whether there was another reason to revoke the cancellation of the first respondent's visa (when there was no such obligation). Further, the Tribunal erred in holding that because it had found there was insufficient evidence to make findings in respect of considerations made relevant by Direction 79 (made under s 499 of the Migration Act) it was necessary or appropriate to exercise the power under s 43(1)(c)(ii) of the AAT Act. 5 In the course of argument the Minister made clear that the Minister did not deny that the Minister (and thus the Tribunal) had a discretion which would enable each to obtain further information in exercising the power in s 501CA(4) of the Migration Act. Section 501CA(4) provides that the Minister may revoke an original decision (in effect, a visa cancellation decision) if the person makes representations in accordance with an invitation to do so and the Minister is satisfied either that the person passes the character test (inapplicable in the present case) or that there is another reason why the original decision should be revoked. The Minister said, however, the discretion would have to be exercised properly. Consideration would need to be given to the statutory scheme, the structure of which is for the person whose visa has been cancelled to make representations and for the Minister to consider those representations. Consideration would need to be given to the question whether the person should be given an opportunity to submit further information rather than requiring the Minister to obtain further information. Consideration would need to be given to the fact that the Minister is under no duty to investigate on behalf of persons whose visa has been cancelled. All of this may be accepted and, no doubt, the discretion (if it was to be exercised) would have to involve a consideration of all the relevant circumstances including the opportunity that the person whose visa had been revoked had already had to put before the decision-maker relevant information. As disclosed by the Tribunal's reasons discussed below, however, this is not a case in which the Tribunal was exercising a discretion to obtain further information. Rather, the Tribunal was proceeding on the erroneous basis that it was bound to obtain further information and was precluded from making a decision unless and until that further information had been obtained. As explained below, these are jurisdictional errors. 6 The Minister's primary proposition, that the Minister (and thus the Tribunal) is not under any duty to undertake investigations on behalf of a person whose visa has been cancelled, must be accepted. No source of any such duty can be identified. Authority is to the contrary. 7 In Taualii v Minister for Home Affairs [2019] FCA 2013 at [96] Anderson J said: The outcomes of these two cases are consistent with broader principles regarding the role of a decision-maker under s 501CA(4) of the Act. The legal duty of such a decision-maker is to address the representations made and to take those representations into account in considering whether or not to revoke the cancellation decision. There is no duty for the decision-maker to undertake his or her own research. 8 In Pennie v Minister for Home Affairs [2019] FCA 489 at [61] Banks-Smith J said: It was for the applicant to persuade the Minister that hardship caused by homelessness was another reason why the decision to revoke the applicant's visa should be revoked. It was for the applicant to put forward whatever material he wished the Minister to take into account about access to housing. It was not for the Minister to investigate and make findings as to the particular outcome for the applicant in terms of finding housing in Ireland: Minister for Immigration and Border Protection v Maioha [[2018] FCAFC 216] at [48]‑[50]; Ali v Minister for Home Affairs [2018] FCA 1693 at [48]‑[49]; McLachlan v Assistant Minister for Immigration and Border Protection [2018] FCA 109 at [37]; Rere v Minister for Immigration and Border Protection [2018] FCA 846 at [42]; Romanov v Minister for Home Affairs [2018] FCA 1494 at [14]. 9 On appeal in Pennie v Minister for Home Affairs [2019] FCAFC 129 at [14] the Full Court said: The primary judge correctly stated that it was for Mr Pennie to put before the Minister what he wanted the Minister to take into account and it was not for the Minister to undertake his own research or investigate for himself the likelihood or otherwise of Mr Pennie finding housing in Ireland, or obtaining social welfare or adequate health care. The Minister had no legal duty to make such inquiries for himself nor to make findings of fact as to whether Mr Pennie would be entitled to social and housing welfare if removed to Ireland: Maioha at [41]-[46] (Rares and Robertson JJ). His legal duty was to address the representations made and to take them into account in considering whether to revoke the cancellation decision. 10 The Minister's next proposition, that the Tribunal misconstrued or misapplied s 501CA(4) by proceeding on the basis that there was such a duty, is supported by a fair reading of the Tribunal's reasons. The Tribunal said at [12]: I am not in a position to apply the Direction or exercise discretion in this matter because the evidence does not permit me to do so. The matter must be returned to the respondent to be investigated further. 11 The Tribunal said at [19]: It seems to me that before the mandatory considerations in the Direction could be the subject of findings, further information must be obtained. 12 The Tribunal then identified the further information which it said it required the Minister to obtain. 13 These statements at [12] and [19] disclose the Tribunal proceeding on the erroneous basis that the Tribunal had no capacity to do anything other than set aside the original decision and remit the matter for further information to be obtained when, in fact, the Minister (and thus the Tribunal) were subject to no duty of investigation and were required instead to consider the statutory question having regard to the representations made by the first respondent. This involved jurisdictional error on the part of the Tribunal. The Tribunal was not bound to obtain further information. It was free to determine the statutory question on the information that the first respondent had chosen to put before the decision-maker. Ground 1 of the appeal must be upheld. 14 The statement in [19] of the Tribunal's reasons discloses that ground 2 of the appeal must also be upheld. The Tribunal is not bound to remit a matter for further information to be obtained by the Minister merely because the Tribunal considers that there is insufficient information for it to consider the considerations made relevant by Direction 79. The Tribunal was in error in so stating at [19]. The fact that Direction 79 includes mandatory relevant considerations does not mean that when the Tribunal has insufficient information to enable such consideration that the Tribunal is bound to require further investigations to be undertaken. The Tribunal is entitled to find that it cannot make any finding about a relevant consideration in such circumstances, recognising that it is essentially for the person seeking revocation of the visa cancellation to put such information as the person sees fit before the decision-maker to persuade the decision-maker to revoke the original decision. 15 Accordingly, in Pelka v Secretary, Department of Families, Housing, Community Services & Indigenous Affairs [2008] FCAFC 92; (2008) 102 ALD 22 at [24] the Full Court explained that an obligation to consider a matter does not include an obligation to make a finding. In Paerau v Minister for Immigration and Border Protection [2014] FCAFC 28; (2014) 219 FCR 504 Buchanan J said at [27]: In my respectful view, there could be no objection in any case to the AAT concluding that the best interests of a child did not weigh either for or against the cancellation of a visa, so long as the available material was assessed conscientiously. That is not the same as not stating a conclusion about the issue at all. Similarly, in a case where the evidence did not permit a proper conclusion about the issue, there could be no objection to the AAT saying so, as it did in the present case. 16 Barker J said at [69]: Secondly, unless it can be said in a particular case that there is no relevant information or evidence concerning the child, then I consider a decision‑maker must do the best they can to make the determination on the available evidence, however difficult or sub‑optimal that decision‑making process may be considered to be by a decision‑maker and regardless of how unreliable they may consider a determination made in such circumstances may be as a result. 17 Perry J said at [119]: Once the Tribunal found that, by reason of the paucity of evidence, it could not be satisfied about where the best interests of Mr Paerau's minor children lay, and that was a finding lawfully open to it, there was nothing further for the Tribunal to do with respect to that consideration. 18 In He v Minister for Immigration and Border Protection [2017] FCAFC 206; (2017) 255 FCR 41 at [76] the Full Court said: In some cases, the Tribunal's answer may be that there is no material, or insufficient material, to be able to form a conclusion on a prescribed matter: cf Paerau at [27], [69] and [119]. However, there must be an answer, or, in other words, a finding, even if the finding is that no conclusion can be reached upon the matter. 19 The Tribunal's approach at [19] is irreconcilable with these authorities. It involved a misunderstanding of the legal position which is sufficient also to vitiate the Tribunal's decision for jurisdictional error. 20 The submissions for the first respondent to the contrary do not grapple with the nature of the jurisdictional errors for which the Minister contends. It is not to the point that the Tribunal had the power to do what it did. It is that the Tribunal exercised the power on the basis of a misunderstanding of the operation of s 501CA(4) of the Migration Act. Nor is to the point that both parties were under an obligation to use their best endeavours to assist the Tribunal: s 33 of the AAT Act. So much may be accepted but this does not entitle the Tribunal to exercise its powers on the basis of a misunderstanding of the law which it is applying. It also does not matter that the Tribunal flagged its intention to the parties during the hearing. The Tribunal exercised its powers on the basis of a misunderstanding of the law and that is sufficient to constitute jurisdictional error vitiating its decision. 21 For these reasons, the decision of the Tribunal must be set aside and the matter remitted to the Tribunal for determination in accordance with law. Given that the first respondent defended the appeal and opposed the orders sought there should also be an order for costs in favour of the Minister. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jagot.