Did the Tribunal misconstrue its powers (ground 1)?
32 Section 43(1) of the AAT Act provides:
Tribunal's decision on review
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:
(a) affirming the decision under review;
(b) varying the decision under review; or
(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.
33 It is uncontroversial that the Tribunal's powers must be read with the relevant powers and discretions conferred by the enactment pursuant to which the decision under review is to be made. The nature of the review conducted by the Tribunal depends on the terms of the statute conferring the right of review: Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at [132] (Kiefel J). Here, that statute is the Migration Act and specifically s 500(1)(ba).
34 For the purpose of conducting the review the Tribunal "stands in the shoes" of the Minister: Esber v Commonwealth of Australia (1992) 174 CLR 430 at 440 (Mason CJ, Deane, Toohey and Gaudron JJ). As Bell, Gageler, Gordon and Edelman JJ observed in Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250 at [51]:
The AAT exercises the same power or powers as the primary decision-maker, subject to the same constraints. The primary decision, and the statutory question it answers, marks the boundaries of the AAT's review. The AAT must address the same question the primary decision-maker was required to address, and the question raised by statute for decision by the primary decision-maker determines the considerations that must or must not be taken into account by the AAT in reviewing that decision.
35 The ultimate question raised by the statute was whether the original decision to cancel ZRTY's visa should be revoked. In order to answer the question, the Tribunal was required to form a state of satisfaction about whether ZRTY passed the character test and, if not, whether there was another reason why the cancellation decision should be revoked. Having found that ZRTY did not pass the character test, the Tribunal posed the next question, namely whether there was another reason why the cancellation decision should be revoked, but indicated that it was unable to answer it.
36 Yet the Tribunal's obligation was to make "the correct or preferable decision". And it was required to do so on the material before it. See Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 68 (Bowen CJ and Deane J); Shi at [96]-[98] (Hayne and Heydon JJ). In the context of a s 501CA decision, it was for the applicant to put before the Tribunal any representations they wish the Tribunal to consider in deciding whether there is another reason the original decision should be revoked: Pennie v Minister for Home Affairs [2019] FCAFC 129 at [14] (Davies, Derrington and Colvin JJ); AEK20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 175 at [25] (Wigney, Abraham and Rofe JJ). See, too, Jokic at [6]-[9].
37 This principle applies equally to an applicant who has no legal representation as it does to one who is represented.
38 As the Full Court (North, Tracey and Mortimer JJ) explained in Beezley v Repatriation Commission (2015) 150 ALD 11 at [68]:
[B]efore a merits review tribunal (or a first instance decision-maker), a decision can only be made on the basis of relevant and probative material. The material must be probative of the matters for which the statute provides: see Minister for Immigration and Ethnic Affairs v Pochi (1980) 31 ALR 666; 4 ALD 139; 1A IPR 708; 44 FLR 41 per Deane J. If an applicant does not provide evidence and information sufficient to meet the statutory requirements, an applicant is unlikely to have the statutory power exercised in her or his favour. And unless and until a decision-maker is satisfied, or persuaded, that the requirements are met, then no occasion to exercise the power in favour of an applicant arises. In that sense, as a practical matter, it is not incorrect to say that a person "must satisfy" the requirements in the statute. To say that is not to impose an onus of proof on an applicant, but rather to recognise the operation of the legislative scheme under which the person seeks a benefit or interest: see generally, McDonald v Director-General of Social Security (1984) 1 FCR 354 at 356-7 and 358; 6 ALD 6 at 9-10 and 11 (per Woodward J), at FCR 366; ALD 19 (per Northrop J) and at FCR 369; ALD 21 (per Jenkinson J); Ward v Western Australia (WAG6006 1995 and WAG6002 of 1996) (1996) 69 FCR 208 at 215-8; 136 ALR 557 at 565-8; and Evans (as executor for the estate of the late Evans) v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (2012) 289 ALR 237; [2012] FCAFC 81 at [18] and the cases there cited.
39 ZRTY submitted that it could not be said that the Tribunal shirked its statutory duty to decide whether there was another reason to revoke the visa cancellation. Rather, he submitted, the Tribunal's reasons focused on what it regarded as the crucial issues and "did not regard the other matters as material to its evaluative judgment" and that was an approach which was open to it. He contended that, "read fairly", the Tribunal's remarks at [41] "represented" another reason to revoke the cancellation decision. While he accepted that the Tribunal did not expressly address the considerations in Direction no. 90, he submitted that the obligation to consider a matter does not include an obligation to make a finding. He noted that the Tribunal was clearly aware that it was bound by the Direction and submitted that it was for the Tribunal to determine what was relevant in the circumstances. He suggested that the Tribunal was focused on "the consideration of the impediments if removed" because it treated this consideration as the decisive one, observing that the weight to be accorded to any particular consideration was a matter for the Tribunal.
40 I cannot accept these submissions. Of course, the Tribunal's reasons must be read fairly and as a whole. But the submissions invite the Court to reconstruct the reasons and to ignore the parts that do not support it. To state, as the Tribunal did at [41], that "to contemplate returning [ZRTY] to Italy or Morocco without such treatment significantly bears of [sic] the question whether there is another reason to revoke the cancellation of his visa" is not to conclude that there is another reason to revoke the cancellation decision. It is merely to recognise that the risk of harm in either of his countries of nationality was a relevant consideration to which weight should be given. At no point in its reasons did the Tribunal purport to weigh the various considerations in the balance. It made its position clear at [6] of its reasons. It erroneously believed that it was unable to do so.
41 It is plain on the face of the reasons (read fairly and as a whole) that the Tribunal did not undertake the task required of it. Rather, it remitted that task to the Minister's Department. That amounted to a constructive failure to exercise jurisdiction. As Gaudron J observed in Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 at [80] (footnotes omitted):
The classic statement as to what constitutes constructive failure to exercise jurisdiction is that of Jordan CJ in Ex parte Hebburn Ltd; Re Kearsley Shire Council [(1947) 47 SR (NSW) 416 at 420]. That statement, which has been approved by this Court on numerous occasions identifies a constructive failure to exercise jurisdiction as occurring when a decision-maker "misunderstand[s] the nature of the jurisdiction which [he or she] is to exercise, and ... appl[ies] 'a wrong and inadmissible test'... or ... 'misconceive[s his or her] duty,' ... or '[fails] to apply [himself or herself] to the question which the law prescribes' … or '... misunderstand[s] the nature of the opinion which [he or she] is to form'".
42 That is precisely what occurred here. At the very least the Tribunal failed to apply itself to the question the law prescribed or misconceived its duty. An error of this nature is indisputably jurisdictional: see, for example, Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at [31] (Gleeson CJ, Gaudron and Hayne JJ). While the Tribunal correctly identified the question it was required to answer, it failed to answer it. It was not in dispute that the Tribunal was entitled in an appropriate case to set aside the original decision and remit the matter to the Minister for reconsideration. But in order to set aside the original decision the Tribunal would have to be satisfied that there was a reason to revoke it in accordance with s 501CA(4)(b). And to reach that state of satisfaction it had to address the relevant considerations prescribed by Direction no. 90 and weigh them in the balance. It could not set aside the decision under review until and unless it had undertaken this exercise on the material it was given. Whatever its misgivings might have been, it was not relieved of that responsibility by a lack of persuasive evidence in favour of revocation.
43 Contrary to the submissions made on ZRTY's behalf, the Tribunal did not comply with the Direction. Rather, it proceeded on the basis that it had insufficient material before it to engage in the exercise required of it by the Direction. Having accepted that ZRTY failed the character test, it did not go on to decide whether there was another reason to revoke the cancellation decision. It left that decision to the Department. Instead of taking the relevant considerations into account and weighing them in the balance as it was required to do under the Direction, it lamented the lack of evidence that might have assisted ZRTY's case and, as the Minister put it in his written submissions, ruminated about what steps might be taken to obtain additional information to enable another decision-maker to determine whether there was another reason to revoke the cancellation decision. That is, with respect, obvious from what the Tribunal said, for example at [14] ("consideration could be given by a decision-maker to revoking the cancellation of his visa and releasing him from detention if he in fact has proper accommodation in some institution"); at [38] ("remitting the matter for reconsideration will also enable the [ZRTY's] mother to set out a plan for him to be admitted to Jeffrey House or some other institution"); at [47] ("consideration may be given to Direction 90 in due course, including to family violence matters"); and at [48] ("further treatment of the [ZRTY] in Australia, when properly proved, will be highly relevant to the decision maker considering whether to revoke the cancellation of his bridging visa").
44 In Commonwealth of Australia v Beale (1993) 30 ALD 68 at 70 Neaves J said that the power in s 43(1)(c)(ii) to set aside a decision under review and remit the matter for reconsideration may only be exercised "where, in order to give effect to the conclusions to which the [T]ribunal has come, it is appropriate to set aside the decision under review but the [T]ribunal is not in a position to formulate a decision in substitution for the decision set aside". In Minister for Immigration and Multicultural Affairs v Perth City Mission [2000] FCA 397 at [23], after referring to Beale, Lee J explained that s 43(1)(c)(ii) "is directed to a circumstance where the decision under the enactment has not been made" and "the Tribunal is of the view that it is unable to make the decision required by the enactment, for example, where a requirement or condition must be satisfied before a decision can be made", citing Re SLE Medical Pty Ltd and Industry Research and Development Board (1988) 19 ALD 215; 10 AAR 13, a decision of the Tribunal. His Honour went on to say that the terms of the provision "enable the Tribunal to assist the decision-maker to whom the matter is returned by offering 'directions or recommendations' that appear to be appropriate on the material before the Tribunal".
45 SLE Medical was a very different case from the present one. That case involved an application for review of a decision of the Australian Industrial Research and Development Incentives Board made under the Industrial Research and Development Incentives Act 1976 (Cth) that an employee of a company who was engaged in industrial research not be approved as fit to carry out the research. The power of the Board to approve an employee derived from s 7(1) of the Act and was exercisable only if the Technical Standing Committee (or its replacement following an amendment to the Act) had recommended approval. That was said to be "an essential prerequisite to the exercise of the power" (at 222). As the Tribunal stands in the shoes of the board, the same limitation applied to the Tribunal. Thus, the Tribunal observed, while it had the power to review the decision of the board and found the decision to be invalid, in the absence of an appropriate positive recommendation it could not affirm, vary or make a decision in substitution for the decision under review (at 222-3). Consequently, the Tribunal set aside the invalid decision and remitted it to the Board with a direction that no further action be taken in respect of it.
46 In the present case my attention was not drawn to any authority for the proposition that the Tribunal was entitled to set aside a decision under review and remit it for reconsideration to the original decision-maker because of a perceived lack of evidence about some relevant matters.
47 As the Minister submitted:
It is unclear from the Tribunal's reason why the Tribunal seemingly considered itself unable to determine whether or not there was another reason to revoke the visa cancellation having regard to the evidence that was before it. The Tribunal had before it in evidence in excess of 1,000 pages that comprised the "G-documents" and "supplementary G-documents". It heard oral evidence from both the first respondent and his mother. The Tribunal appeared concerned that some of the medical and immigration detention records were not current to the date of its decision. However, the Tribunal did not explain why the "absence" of such records prevented it from making a decision either to affirm the decision under review or to set aside the decision under review and substitute a decision.
48 The Tribunal did not identify with any precision the "several relevant matters" about which it felt it was not possible to be satisfied. The matters it was obliged to take into account were ZRTY's representations and the considerations identified in Direction no. 90, to the extent that they were relevant. Those considerations are set out in Part 2 of the Direction.
49 In exercising the discretion to revoke the original decision, section 6 states:
Informed by the principles in paragraph 5.2, a decision-maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.
50 The Tribunal did not advert to para 5.2 or refer to any of the principles contained in it.
51 Section 7 describes the approach the decision-maker must take. It provides:
(1) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2) Primary considerations should generally be given greater weight than the other considerations.
(3) One or more primary considerations may outweigh other primary considerations.
52 The primary considerations are listed in section 8. They are:
(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.
53 There was a wealth of material before the Tribunal bearing on the first and second considerations. Evidence in relation to the fourth was not required. The expectations of the Australian community are those explicitly identified in para 8.4 of the Direction. ZRTY's representations made it clear that the third was not relevant.
54 In para 8.1 the Direction goes on to explain what is required of a decision-maker in relation to the protection of the Australian community. It opens with the following two instructions:
(1) When considering protection of the Australian community, decision-makers should keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
(2) Decision-makers should also give consideration to:
a) the nature and seriousness of the non-citizen's conduct to date; and
b) the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.
55 The considerations in para 8.1(2) are expanded upon at paras 8.1.1 and 8.1.2 and 8.2, which deals specifically with the serious concerns of the Government about non-citizens who engage in family violence remaining in Australia.
56 In para 8.1.2 the Direction states:
(1) In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government's view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
(2) In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
a) the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b) the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i) information and evidence on the risk of the non-citizen re-offending; and
ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
c) where consideration is being given to whether to refuse to grant a visa to the non-citizen - whether the risk of harm may be affected by the duration and purpose of the non-citizen's intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
57 No consideration was given to any of these matters.
58 Other considerations which the Tribunal was required to take into account, where relevant, are listed in section 9. They include (but are not limited to):
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
59 The Tribunal adverted to some of these considerations but did not suggest that it was not possible to be satisfied about them.
60 It is implicit, if not explicit, in the Tribunal's reasons that it was concerned about the lack of evidence of ZRTY's rehabilitation and the impediments to his removal. These were the two matters that vexed the Tribunal. It was also concerned about his mental illness and his need for treatment. These matters were at the heart of ZRTY's representations.
61 It is evident from its reasons that the Tribunal was sympathetic to ZRTY, believed that the Minister or his Department had denied him the opportunity to obtain that treatment and to rehabilitate himself, and thought he should have that opportunity. It considered that could be achieved by setting aside the delegate's decision which would buy ZRTY some time. It provided advice or guidance to a future decision-maker about what could be done. So much is clear from [14]-[15] of the reasons, where the Tribunal remarked:
14. Consideration could be given by a decision-maker to revoking the cancellation of his visa and releasing him from detention if he in fact has proper accommodation in some institution, where there is reason to believe that he may be rehabilitated from his drug addiction and given consistent counselling to ensure that he takes his medication, and given him such other treatment as is available for his schizophrenia.
15. His addiction to ice seems to have been maintained at Villawood, because ice is available there. The G documents do not suggest that any steps to rehabilitate the applicant from his drug addiction have taken place in Villawood.
62 Had the Tribunal undertaken the task required of it, one would expect it to have at least adverted to the primary considerations. But the Tribunal's reasons make no mention anywhere in its reasons of the matters in para 8.1(1) of the Direction. They contain no reflection on the seriousness of ZRTY's offending. The only mention of the nature of the offences appears at [46]. Quite apart from the fact that they understate the nature and extent of the offending, the Tribunal's remarks at [46] do not purport to engage with this primary consideration. The only risks to which the Tribunal refers are the risks ZRTY might face if required to return to Italy or Morocco. The Tribunal did not address the risk to the Australian community if ZRTY were to reoffend or the prospect that he might reoffend.
63 It was possible for the Tribunal to give consideration to all the relevant considerations the subject of the Direction. It seems that it was not possible for the Tribunal to be satisfied that there was any, or any sufficient, evidence of rehabilitation. But a difficulty of this kind is commonplace. It did not entitle the Tribunal to decline to answer the statutory question, set the original decision aside and remit it to "the Department" "for reconsideration". In Jokic, where the same error appears to have been made, Jagot J held at [14]:
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.
64 As the Minister submitted, the Tribunal was required to engage in a consideration of the material before it, rather than speculate about what other material might be in existence or might later be obtained. Provided that the available material is assessed conscientiously, in the event of a paucity of material about a particular relevant consideration the Tribunal is entitled to conclude that that consideration weighs neither for nor against revocation: Paerau v Minister for Immigration and Border Protection (2014) 219 FCR 504 (FC) at [27] (Buchanan J); [117]-[118] (Perry J). Nothing in the Migration Act or the Direction requires that the Tribunal's decision be to any particular standard or provides that it can only make a determination if it considers it has "sufficient information or evidence to make an optimal or 'proper' determination": Paerau at [71] (Barker J). In this respect, Direction no. 90 is no different from Direction no. 55 with which Paerau was concerned.
65 Similarly, in He v Minister for Immigration and Border Protection (2017) 255 FCR 41 at [76] the Full Court (Siopis, Kerr and Rangiah JJ said:
In our opinion, the requirement that the Tribunal "consider" the circumstances in reg 1.15A(3) means that the Tribunal is required to make findings upon each of the prescribed matters numbered with Roman numerals. The nature of these specific matters is such that each of them poses, in effect, a question or questions for the Tribunal. For example, in respect of "the nature of the household", the Tribunal must ask:
(i) whether there are children and whether there is any joint responsibility for their care and support;
(ii) what the living arrangements of the persons are; and
(iii) whether and to what extent there is sharing of the responsibility for housework
The regulation poses these questions in order to ensure that the Tribunal takes into account particular circumstances of the marriage as part of the active mental process involved in giving proper, genuine and realistic consideration to the prescribed matters. The legislative intention must be that these questions will be answered, not merely thought about. They must be answered so that the circumstances identified by the answers are included in the evaluation of whether there is a "married relationship". 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.
66 As Jagot J observed of the Tribunal's approach in Jokic at [19], the Tribunal's approach in the present case involves a "misunderstanding of the legal position … sufficient … to vitiate the Tribunal's decision for jurisdictional error".
67 In any event, in the present case there was not a paucity of material about the relevant considerations, only a paucity of material in ZRTY's favour.
68 It is clear that the Tribunal misunderstood the nature of its task. Further, having regard to the statutory scheme, it was not open to the Tribunal in the circumstances in which it found itself to avoid making a decision because it was unable to be satisfied about certain matters, lacked up-to-date evidence on those matters, or in order to allow ZRTY to undergo treatment for his drug addiction or schizophrenia or embark on the process of rehabilitation.