Consideration
37 The dispute between the parties concerns the application of the relevant legal principles to the circumstances of this case.
38 The respondent's submissions are to be accepted.
39 It is important to recall at the outset that although the applicant referred, in particular in his written submission, to various authorities, including McCutcheon, Viane, HWLJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1039 (HWLJ), DQM18 and Swannick v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 165; (2018) 280 FCR 559 (Swannick), these are examples of the application of the principles to the particular facts of those cases. Although these decisions provide guidance on the legal principles and the application thereof, it is clear from the nature of this ground of review, each case must necessarily turn on its own particular facts and circumstances: GBV18 at [32(b)]; HWLJ at [70]. The applicant also referred in oral submissions, inter alia, to GBV18 and Swannick in relation to relevant principles, which as observed above, are not in dispute.
40 The extent of the material before the Tribunal in respect to the representations is not in dispute (although the significance attached to them is) and is accurately summarised by the parties.
41 It is appropriate to recite the applicant's particular representation to the delegate. In response to the question contained in his personal circumstances form, "Do you have any concerns or fears about what would happen to you if you were to return to your country of citizenship?", he wrote in describing his concerns:
If I go back it will be very hard mentally because I have no family there. I don't know if my family will come with me because I won't be able to support them and if they do come there is a big chance we will be homeless because there's no support.
42 For completeness, I also note the applicant's statement before the Tribunal that "I would also be homeless and be unemployed as my family does not live in New Zealand. I do not think I will be able to emotionally handle being deported to New Zealand". There is no reference in the statement to the possibility of homelessness of his family.
43 It is necessary to address the two alternative scenarios separately.
44 As to the scenario concerning the applicant's family staying in Australia, the applicant's core contention is that he made representations about being homeless if he was sent to New Zealand because of his lack of employment prospects and family support and the Court can infer that the Tribunal did not consider that representation.
45 The applicant relies on a bare representation that he would be at risk of being homeless if returned to New Zealand. The representation is directed to the possible consequences if the applicant is returned to New Zealand. It is a fear that the applicant holds. There is no further elucidation provided in relation to that representation, apart from the explanation that he would face difficulty re-establishing himself due to the lack of family and friends to provide emotional support. The character of the submission made was wholly in the knowledge of the applicant. I note in the applicant's SFIC there is no reference to the possibility of homelessness, with the submission regarding impediments including reference to his statement which focused on the lack of family and emotional support. Although, in the applicant's statement attached to the SFIC, there is reference to the applicant saying he would be homeless and unemployed as his family does not live in New Zealand, this is consistent with the earlier references which are focused on the lack of family and emotional support. The risk of homelessness was not central or prominent to the manner in which the applicant's case was advanced before the Tribunal.
46 As previously observed, the significance of any particular matter raised in the representations is to be assessed by reference to the manner in which the matter is expressed: GBV18 at [31(d)]. In AXT19 v Minister for Home Affairs [2020] FCAFC 32 (AXT19) at [56], the Court recognised that "[t]he greater the degree of clarity in which a claim has been made and advanced for consideration, the greater may be the need for the Tribunal to consider the claim in clear terms. Conversely, the more obscure and less certain a claim is said to have been made, the less may be the need for the Tribunal to consider the claim". A claim that is advanced summarily or in general terms may not warrant anything more than general or summary consideration: see for example AXT19 at [57].
47 In respect to this basis of review, the representation was said to be relevant to impediments of the applicant's removal. The Tribunal had the applicant's statement and the delegate's reasons (which refer to homelessness in this context). Given the manner in which the representation was made, and the Tribunal's reasons, the applicant has not established that the inference to be drawn is that the representation was not considered. Rather, given the manner in which the case was advanced before the Tribunal, with the emphasis on the lack of support and emotional difficulties which was at the base of the possibility of homelessness, the inference is that the Tribunal from the reasons properly read, was aware of the claim and took it into account.
48 The Tribunal made findings at [81]-[84] as follows:
[81] I am required to consider the extent of any impediments that exist for a non-citizen in establishing and maintaining a basic living standard if removed from Australia. I am required to consider age, health, language and cultural barriers and social, medical and economic supports that may be available.
[82] There is no language, cultural, social or economic barriers that obviously confront MXDK if he is returned to New Zealand. New Zealand is a liberal democratic developed country with advanced and well developed social and economic systems.
[83] MXDK is a relatively young man. There was no evidence that he suffers from any medical condition that would affect his establishing himself in New Zealand. He will have some capacity to remain in contact with many of his family and friends in Australia by telephone and other means. This will ameliorate although not eliminate many of the difficulties he will, at least in the immediate term, be required to meet. There is no doubt that he will have some difficulty, emotional and otherwise, re-establishing himself in New Zealand. There is some prospect because of his plans to relocate Ms GH and his child that this will not be as hard for him as it might otherwise be.
[84] This consideration weighs in favour of revocation although not significantly so.
49 The passage refers to impediments the applicant might face if returned to New Zealand. Here, the Tribunal recognises there will be some difficulties, emotional and otherwise, in the applicant re-establishing himself.
50 The applicant's submission that the Tribunal's conclusions at [81]-[84] are of a general nature and do not address in particular the applicant's fear of homelessness, thereby constituting a jurisdictional error, cannot be accepted. I do not accept the applicant's submission that the inference to be drawn from the reasons is that the Tribunal was not aware of, and has not taken into account, the applicant's fear of the possibility of homelessness.
51 As the respondent correctly submitted, the Tribunal was entitled to conclude, without any further enquiry or specific evidence, that the social and economic support systems in New Zealand were similar to those of Australia: see for example, McLachlan at [37]; Uelese v Minister for Immigration and Border Protection [2016] FCA 348; (2016) 248 FCR 296 at [69].
52 Moreover, in Maioha, Rares and Robertson JJ at [48] observed:
It should again be emphasised that the issue for the Minister was whether he was satisfied that there was another reason why the original decision to cancel the visa should be revoked. It was for the respondent to put before the Minister by way of representation what it was she wished the Minister to take into account. The Minister had no legal duty, referable to jurisdictional error, to ask for further representations from the respondent or to make inquiries into the representations she had made. In the present case, in our opinion, the Minister was not required to give more extensive consideration to the representations put, such as investigating and making further findings, in particular findings as to how the respondent "would be able to manage those practical changes" as the primary judge appears to have held at [34]. The Minister found that there would be hardship for the respondent but that it would not be insurmountable.
53 Given the general nature of the representation, the Tribunal was not obliged to make further inquiries and investigate the applicant's representation as to how he, or the New Zealand systems, would address his situation.
54 In Maioha, their Honours concluded at [50]:
It follows, in our opinion, that the Minister did not make a jurisdictional error by failing to make a finding, beyond those he made, that the respondent would suffer hardship that would "not be insurmountable in light of New Zealand's similar culture, language and health system standards", which addressed in greater detail the respondent's representation that she would have nowhere to live and no money if returned to New Zealand. It was for the respondent to satisfy the Minister that her prospective hardship was another reason why the original decision should be revoked. The Minister was not legally required to analyse the representation in order to negate it, the Minister not having been satisfied by what the respondent asserted. It was also not necessary for the Minister's conclusion that the hardship that the respondent may suffer "will not be insurmountable" to be supported by probative material outside what the respondent had put by way of representation.
55 Those observations are apt in this case.
56 I do not accept the applicant's submission that the Tribunal did not engage with his submission, that he would not have family support. Contrary to the applicant's submission, the Tribunal's reference at [82] to the support systems available in New Zealand which he could access is relevant to a consideration of that submission. Moreover, the reasons reflect that the Tribunal has considered the family support available to the applicant in New Zealand and observed, inter alia, that he will have some capacity to remain in contact with them, recognising that it will ameliorate, although not eliminate, many of the difficulties he would face, at least in the immediate term.
57 As to the alternate scenario concerning the applicant's family returning with him to New Zealand, a real issue arises as to the factual basis of the purported representation. This representation was said to be relevant to the best interests of the applicant's child. The whole crux of the applicant's claim to establish there is some other reason to revoke the cancellation was the effect of removal on him and his family and the impact of being apart from his family and child. This submission is the counterfactual to that claim. At its highest, it appears to rely on a possibility that sometime in the future the applicant's family might decide to relocate to New Zealand and if the family moved there is a risk they may be homeless because there is no support. Again, there is no further detail advanced as to why there is a risk that the applicant and his family would be homeless. The Tribunal does refer at [83] to the possibility of the applicant's family moving to New Zealand. I note this is in the context where the only basis the applicant advanced for his fear of homelessness is the lack of support from family and friends. The Tribunal also recognised at [79] in considering the impact on the applicant's partner, that if the applicant were to be deported, she would face a difficult choice as to whether to go to New Zealand or remain in Australia. A choice, the Tribunal recognised, the applicant's partner had not yet made. That was the evidence of the applicant's partner in respect to those matters. The Tribunal took into account the impact of that choice on the applicant when considering the impediments of his removal and the impact of that choice on the applicant's partner and son.
58 The Tribunal considered the best interests of the minor child based on the case advanced by the applicant, concluding, inter alia, that "there is no doubt that restricting the relationship between [the applicant] and his son in that way [referring to their physical separation] would be inimical to the best interests of the child": at [64]. This factor weighed in favour of revocation, and was given a moderate or intermediate weight (when considering his son and his niece). The applicant's submission cuts across that conclusion.
59 The extent and generality of the applicant's statement which underpins this scenario, and the scantness of its content, is described above at [41]. In addition, this scenario is based on at least two speculative possibilities, with the first being the possibility of the applicant's family moving to New Zealand, and then if that occurs, the possibility the family will be homeless. This submission is contrary to the applicant's core submission that he will be separated from his family and the impact that would have on him and his son. It is also contrary to the manner in which the applicant's case was advanced before the Tribunal. As noted above at [57], the first possibility in the scenario was addressed.
60 The second possibility, regarding the risk that the applicant's family and his child would be homeless, is a general speculative assertion. The applicant's SFIC makes no reference to this possibility. There is also no reference to this in his statement before the Tribunal. In the circumstances, it was not necessary for the Tribunal to investigate the possible consequences of the possibility that the applicant's family would move to New Zealand and the basis thereof: cf Maioha at [50]. In that context, the submission regarding the best interests of the child, which on this review is said to be the relevant consideration, is detailed and is based on the consequences of the applicant being separated from his child, the submission advanced by the applicant. In the circumstances, it was not a submission of sufficient significance or substance such that it was required to be addressed by the Tribunal.
61 The applicant has not established that the Tribunal fell into error by failing to consider this scenario.
62 I note in any event, even if the applicant had established an error, in my view the applicant has not established it is material such as to obtain relief. That involves the applicant establishing that there is a realistic possibility that the decision in fact made could have been different had the error not occurred. That is a question of fact: SZMTA at [4] and [45]-[47]; MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 95 ALJR 441 (MZAPC) at [1]-[4] and [38]-[39]. The onus of proving, by admissible evidence on the balance of probabilities, facts necessary to satisfy the court that the decision could realistically have been different had the breach not occurred, lies on the applicant: MZAPC at [39] and [60].
63 Given the general nature of the submission as to the scenario of the family remaining in Australia, and the Tribunal's conclusions in respect to the impediments faced by the applicant and the other considerations, the applicant has not established there is a realistic possibility the decision could have been different. The representation as to the applicant's fear of the risk of homelessness was not a prominent aspect of his case. The only basis advanced by him for this fear was the lack of support of family and friends, a matter which was addressed by the Tribunal. The applicant has not established, contrary to his submission, that even if there is an error, it is possible the Tribunal having considered this risk might have attributed different weight to the various primary considerations, such that there is a realistic possibility the Tribunal may have reached a different result.
64 As to the scenario that the family went to New Zealand, as the respondent correctly submitted, this is not a case where a fact or claim was not considered, but a counterfactual inquiry. The counterfactual is general, speculative, and is dependent on the possibility of what a possibility could lead to. Moreover, if the counterfactual situation was considered, most of the reasons put forward by the applicant to justify revocation would be nugatory. For example, it would cut across, inter alia, the findings made in his favour in relation to the best interests of the child. In those circumstances, and given the findings of the Tribunal in relation to those and other considerations, the applicant has not established there is a realistic possibility the decision could have been different had the error not occurred.
65 Finally, I note that given the nature of the representations in the context of the Tribunal's reasons and conclusions in respect to the Direction no. 79 considerations, even if error is established, the applicant has also failed to establish, considering the representations together, there is a realistic possibility the decision could have been different.