Grounds 1 and 3
29 It is convenient to deal with grounds 1 and 3 together. As refined during oral submissions, the essence of the appellant's case in respect of grounds 1 and 3 was that the Tribunal failed to:
(1) engage actively with the appellant's claim; or
(2) take into account evidence, particularly that of Dr Way, to the effect,
that Ms Mafi's physical condition would worsen and her mental state would deteriorate significantly if the appellant returned to India (see at [19] above).
30 If a statute requires a decision-maker to consider a matter, the decision-maker must give that matter 'proper, genuine and realistic consideration'; that is, the decision-maker must engage in an 'active intellectual process' directed at the matter: Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352 at [45], per Griffiths, White and Bromwich JJ.
31 A statute might require a decision-maker to consider a matter by:
(1) expressly stating that the decision-maker must consider the matter; or
(2) necessary implication because the consideration is a mandatory one having regard to the subject matter, scope and purpose of the legislation: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40.
32 Carrascalao concerned the cancellation by the Minister of the visas of Mr Carrascalao and Mr Taulahi under s 501(3) of the Migration Act 1958 (Cth). Mr Carrascalao and Mr Taulahi sought judicial review of those decisions in the Federal Court. The matter was heard, in this Court's original jurisdiction, by three Justices.
33 The Minister did not contest that he was under a general legal obligation to consider the merits of cases before cancelling visas under s 501(3). The Full Court stated at [46]:
… An express statutory obligation on a decision-maker to consider (or have regard to) something may well provide a "more precisely defined duty", as Black CJ observed in Tickner v Chapman. In our view, however, the ordinary meaning of the word "consider" in this judicial review context requires the Minister to engage in an "active intellectual process" in assessing the merits of a case when contemplating the possible exercise of the power under s 501(3).
34 The principle is directed to the question whether the jurisdiction reposed in the decision-maker is in fact exercised and exercised in a way which is authorised by the statute. If the decision-maker does not actively consider a mandatory consideration, the decision-maker has not exercised the jurisdiction the statute contemplated the decision-maker would exercise. Likewise, a Tribunal charged with "review" may commit jurisdictional error in failing to exercise the jurisdiction it was contemplated it would exercise, if - for example - it does not engage in an active intellectual process or give proper, genuine and realistic consideration to:
a "substantial, clearly articulated argument relying upon established facts" - see: Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at [24] per Gummow and Callinan JJ, with whom Hayne J agreed;
a claim "raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review" - see: NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 at [63] per Black CJ and French and Selway JJ; or
a matter "that is an essential integer to an applicant's claim or that would be dispositive of the review" - see: ETA067 v The Republic of Nauru (2018) 360 ALR 228 at [14] per Bell, Keane and Gordon JJ.
35 However, it is important to recognise that the ultimate concern is with the identification of jurisdictional error: the Tribunal not performing the function entrusted to it or not performing it in an authorised way. The Full Court in Carrascalao at [32] cautioned against allowing this ground for judicial review to slide into merits review (emphasis in original):
The Court is mindful of the necessity to avoid straying into a review of the merits of the Minister's decisions (see the frequently cited statements of Brennan J in Attorney-General (NSW) v Quin [1990] HCA 21; 170 CLR 1 at 35-37). The Court acknowledges that an expression such as "proper, genuine and realistic consideration" can, if taken out of context, encourage a "slide" into an impermissible merits review (see the observations of the High Court in Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; 243 CLR 164 (SZJSS) at [30] per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ, who referred with apparent approval to Basten JA's comments on this matter in Swift v SAS Trustee Corporation [2010] NSWCA 182 at [45]).
36 The principle does not require the decision-maker to refer in the reasons to every piece of evidence and every contention made: Carrascalao at [45]; ETA067 at [13]. However, if a critical piece of evidence or a particular issue is not referred to, that fact might be one from which an inference can appropriately be drawn that the decision-maker did not consider it. That, in turn, may be relevant to whether the decision-maker engaged actively with the matter.
37 In determining whether the decision-maker had an active intellectual engagement, the following matters are relevant:
(1) First, the degree of consideration which is necessary for the jurisdiction to have been exercised, and exercised in a manner which is authorised, is affected by the centrality of the matter, which it is said was not engaged with, to the issues and the prominence the matter assumed.
(2) Secondly, in examining the reasons of the decision-maker to determine whether there was a lack of intellectual engagement:
(a) the reasons should not be scrutinised "minutely and finely with an eye keenly attuned to the perception of error": Carrascalao at [45], quoting Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [30];
(b) it is necessary to read the reasons in light of the whole case as it was before the Tribunal, which might have involved more issues than are raised, and more evidence than is, before courts on judicial review and subsequent appeal. The failure to mention a particular paragraph of a particular piece of evidence should be analysed by reference to the whole of the material before the Tribunal and its prominence assessed by reference to all of the issues and the way in which the matter was conducted in the Tribunal; and
(c) a conclusion that the decision-maker has not engaged in an active intellectual process "will not lightly be made and must be supported by clear evidence, bearing in mind that the judicial review applicants carry the onus of proof": Carrascalao at [48].
38 In Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 at [1], Gleeson CJ made the following observations about the recasting or narrowing of focus that often occurs in an applicant's case as it proceeds through the various stages of decision-making constituting the system of judicial review of administrative action. While these observations concerned a refugee visa application, we consider they apply with equal force to a visa application of the present kind:
The system of judicial review of administrative action, as it operates in relation to visa applications by people seeking acceptance as refugees, often means that, by the time a case reaches this Court, it is at the fifth level of decision-making. It may be, as in this case, that there have been adverse decisions at the first and second levels (the Minister's delegate and the Refugee Review Tribunal ("the Tribunal")) and that the Tribunal's decision has been upheld at the third (Federal Court of Australia) and fourth (Full Court of the Federal Court) levels. It may not be surprising that, at the fifth level, an appellant will look for a new way of putting a case that has already failed on four occasions. The case put to this Court may bear little relationship to what was previously advanced, considered, and rejected. There is a risk that criticism of the reasoning of a decision-maker at an earlier stage might overlook the forensic context in which such reasoning was expressed; a context that may have changed almost beyond recognition. Proceedings before the Tribunal are not adversarial; and issues are not defined by pleadings, or any analogous process. Even so, this Court has insisted that, on judicial review, a decision of the Tribunal must be considered in the light of the basis upon which the application was made, not upon an entirely different basis which may occur to an applicant, or an applicant's lawyers, at some later stage in the process ...
39 The appellant contended that the Tribunal merely recited the appellant's claim that Ms Mafi's depression and anxiety and diabetes would worsen if the appellant were to return to India, and did not actively engage with it. The appellant submitted that T[46] to T[50] only address the logistical effects of his absence and not the aggravating consequences for Ms Mafi's physical and mental health should the appellant return to India.
40 We do not accept this contention. The Tribunal summarised the effect of the medical evidence which addressed Ms Mafi's condition. At T[21] it referred to the reports of each of the treating doctors. It summarised the report of Dr Way which contained the opinion that Ms Mafi's mental state would deteriorate if the appellant were to return to India. The Tribunal did not expressly refer to, or set out, the particular paragraph in that report which contained the opinion that Ms Mafi's "mental state" would "deteriorate significantly". However, it undoubtedly considered Dr Way's report (having referred to and quoted from it) and from that consideration it is apparent that it well understood the appellant's claim that Ms Mafi's condition would deteriorate if he were to return to India. The Tribunal stated at T[59] and T[60]:
59. The applicant … claims that a temporary absence will impact adversely on their relationship, the sponsor's depression and anxiety will worsen and that the sponsor will be affected negatively physically, emotionally and economically and that the sponsor is unable to look after herself on her own as a result of her medical conditions and medications.
60. The Tribunal has considered these reasons, separately and cumulatively, but is not persuaded they provide compelling reasons for not applying the Schedule 3 criteria in this case.
41 As mentioned, also at T[21], the Tribunal referred to the evidence of the endocrinologist (Dr Kok) and the general practitioner (Dr Jirjis) and noted that this included evidence that the appellant accompanied Ms Mafi to medical appointments, acted as her carer, supervised her medications, and assisted her to manage her diabetes by regularly checking her blood glucose levels and ensuring she took her insulin injections. Dr Kok indicated that Ms Mafi's medical condition would deteriorate if the appellant were to leave. The basis for that conclusion was tied to the assistance he provided to Ms Mafi in ensuring she took her medication and checking her blood glucose levels. The Tribunal referred to, understood and dealt with, all of this.
42 At T[24], referring to the statement of Ms Mafi regarding the support and assistance provided by the appellant, the Tribunal stated:
The applicant also submitted a statement from the sponsor indicating that she will struggle to cope without the applicant. It refers to the medical records provided and the information contained in them. She also talks about her past and that the sponsor helps her by ensuring that she does not maintain her bad habits of eating junk food and being lazy, and he reminds her about taking her medication, ensures she attends her doctor's appointments, and encourages her to take a short daily walk. She also refers to the sense of safety and security she feels through their relationship. The sponsor also refers to the fact that she is unable to work because of her medical conditions and that her husband supports her financially. She states that she has willingly taken on all household responsibilities including cooking and cleaning. She refers to the verbal, emotional, financial and physical support provided by the applicant and his invaluable love, compassion and understanding. She states that she hopes to be a mother one day.
43 The Tribunal further noted the claims made regarding support provided by the appellant in relation to Ms Mafi's health in the course of the hearing. At T[26]-[29], the Tribunal stated:
26. At hearing, the applicant talked about the sponsor's medical conditions will [sic] and the difficulty she had managing them while she was living in shared accommodation before they married. He explained that while she can take her medication herself she often forgets. He referred to her diagnosis of depression and anxiety. He explained that she is stressed because of the lack of certainty about his visa.
27. The applicant stated that the sponsor also thinks a lot about her family. She is close to one of her brothers, who also has diabetes and requires dialysis. Because the sponsor suffers from diabetes she is very concerned about his condition and whether she will similarly deteriorate.
28. In relation to the sponsor's mental health issues, he stated that they were diagnosed in 2017. Although she had seen a psychologist before because of problems that were occurring in her family, more recently she was referred to a psychiatrist.
29. The Tribunal heard that the applicant drives the sponsor to and attends all her medical appointments with her. He also talks about her conditions with the doctors and ensures that her medication regime is and here to [sic].
44 At T[47] and T[49], the Tribunal took account of benefits to Ms Mafi from support provided by the appellant (extracted at [22] above).
45 The Tribunal expressly noted the appellant's claim that a "major upheaval" could affect Ms Mafi's health and serious medical conditions: at T[23] (extracted at [21] above). The transcript shows the Tribunal raised this claim with the appellant at the hearing. The Member acknowledged that Ms Mafi "would be very distressed" about the appellant leaving Australia and that it "wouldn't be easy for her", but suggested "she could manage". In response, the appellant stated, in effect, that it is "very hard" for Ms Mafi, that his absence would "put too much depression on her", and that her condition would get "worse". This appears to be the source of the reference at T[59] to the appellant's claim that Ms Mafi's condition would get worse. As is mentioned above (at [15]), it does not appear clearly from the two statements of Ms Mafi or from any written claims made by the appellant.
46 The Tribunal engaged actively with the material before it, and to the extent it was put, with the claim that Ms Mafi's condition would deteriorate if the appellant were to return to India. It is true that it did not in its reasons expressly refer to the particular part of the evidence which formed the focus of submissions on appeal, namely the paragraph in the report of Dr Way which stated his opinion that Ms Mafi's mental state would "deteriorate significantly" (extracted at [19] above). However, we do not consider the Tribunal's failure to mention this paragraph establishes that it did not consider and engage with the whole of that report, including that opinion. The better reading of the reasons at T[59] and T[60] is that the Tribunal accepted that Ms Mafi's condition would deteriorate in certain respects, but concluded that this was not sufficient for it to be satisfied that there were "compelling reasons" for not applying the Sch 3 criteria. That was a matter for the Tribunal. Leaving aside the fact that the reasons do not mention the particular part of the report of Dr Way containing the opinion mentioned, the reasons otherwise reveal a conscientious and thorough examination of the evidence and issues.
47 Whilst it might now, with focussed attention being given to the particular issue said to have been ignored, be seen to be preferable for the Tribunal to have dealt more thoroughly with the question of whether Ms Mafi's mental state would deteriorate significantly if the appellant were to leave, the prominence given to this particular issue by the Tribunal is not surprising given the way in which the appellant identified the claims and the manner in which the matter was dealt with before and during the hearing. The Tribunal addressed more thoroughly in its reasons the claims as expressly articulated and addressed those of less prominence in a shorter way. That was appropriate. It cannot be said that it did not conduct the "review" which it was required by statute to undertake.
48 The appellant contended that the decision of Siopis J in Karan v Minister for Immigration and Border Protection [2017] FCA 872 was "indistinguishable" from the present case. At the "forefront" of the appellant's claims in that case, was the claim that the appellant's wife had been left with severe mental health issues and that, if he was deported, her condition would deteriorate: at [29] and [30]. The claim was supported by expert opinion evidence. His Honour concluded that the delegate had not appreciated the nature of the case being made "because, in the opening sentence of his reasons, he treats the separation issue as being no more than a fear of experiencing separation anxiety normally attendant upon being separated from 'a loved one'": at [31]. The present case is distinguishable. First, it is clear from T[59] that the Tribunal understood the claim being made, unlike the delegate in Karan. The Tribunal set out the claim at T[59] in the same terms as pleaded in ground 1 of this appeal. Secondly, the claim cannot be said to have been at the "forefront" of the appellant's claims in this case. The appellant's claims were principally focussed on the assistance which the appellant would provide to Ms Mafi in the management of her various medical conditions, the love and support which he would provide and the importance of being there for each other in the early years of their marriage. Each of these matters was dealt with. The assistance which the appellant provided in the management of Ms Mafi's condition was related to whether her condition would worsen. The Tribunal recognised this claim at T[59] and found that Ms Mafi would adequately manage: at T[47]
49 The appellant also placed considerable reliance on the decision of Burchett J in Fuduche v Minister for Immigration, Local Government and Ethnic Affairs (1993) 45 FCR 515. In that case, the applicant's sister, who had been undergoing years of psychiatric treatment and had attempted suicide on two occasions, had experienced horrific childhood mistreatments and deprivations such that whatever family ties she could salvage were uniquely important to her and beneficial to her mental condition. This was relevant to whether the applicant, her brother, was a "special need relative" and whether there were "compassionate" circumstances "to the effect that refusal to grant [an] entry permit [to the brother] would have caused extreme hardship or irreparable prejudice to an Australian citizen".
50 Burchett J described the sister's history as "so sad and extraordinary as to evoke recollections of the bizarre public humiliation in which the little girl Pearl grew up in the famous American novel, 'The Scarlet Letter'" (at 518). His Honour continued:
It was described by the Minister's counsel at the hearing before me as "horrendous", and in the medical records of Wollongong Hospital as "horrific". Unfortunately, coloured words of that kind become bleached of their meaning, unless the facts they describe are exposed in a little detail. Neither "horrendous" nor "horrific" is suggested by the bland summary appearing in the reasons for the decision. But a reading of the original material would leave most persons of normal understanding and humanity in a state not very far from tears.
51 His Honour summarised that history. The only shred of kindness which appears to have been afforded the sister in her childhood had come from her brother, the applicant. The manner in which the decision-maker dealt with the lay and expert evidence, which it is not necessary to set out in detail, can appropriately be described as utterly bizarre whether viewed from the perspective of common experience or from the detailed and reasoned expert evidence pointing to the importance to the sister's wellbeing of contact with her brother. Burchett J ultimately concluded at 528:
I have been concerned with the assessment of the facts (medical and other), upon which the delegate acted. That assessment is so at variance with the material before the delegate as to fall within the rare category of cases to which the principle of Wednesbury unreasonableness applies. It is not a question of mere error in findings of fact, a form of error that would not disclose any legal defect in the decision. Here, no reasonable person could have come to such conclusions. Indeed, counsel for the Minister was constrained to concede in argument that, although the recommendation at one point professes to accept Dr Kaplan's opinion, and nowhere acknowledges that it is really departing from the doctor's views, "the decision-maker doesn't accept it [ie Dr Kaplan's opinion] to the extent that Dr Kaplan states, because if he had he'd have come to a different opinion [ie he would have reached a conclusion in favour of the applicant]". In other words, the decision was admittedly unreasonable, on the basis of the doctor's report. Yet there was no evidence upon which it was open to the delegate to make medical findings different from those suggested by the report.
52 Of course, that passage must now be read in light of more recent authority with respect to unreasonableness, which is addressed below. One particular aspect of Fuduche upon which the appellant relied was his Honour's observation at 522:
Where, upon a medical issue, medical science is unable to offer a conclusion on the probabilities, it may sometimes be open to a lay decisionmaker to rely on ordinary human experience in order to bridge the scientific gap to a practical decision. But where medical science offers an answer, it is simply not rational for a lay person to brush that answer aside in favour of some theory of his own: see Adelaide Stevedoring Co Ltd v Forst (1940) 64 CLR 538 at 564, 569-570; and cf Bushell v Repatriation Commission (1992) 175 CLR 408 at 414-415, 430. In the latter case, Brennan J said (at 430):
Although s 120(3) entrusts the determination . . . to the decisionmaker, the decision-maker is bound to have regard to its own want of scientific expertise in comparison with the expertise of a responsible medical practitioner ...
53 The appellant submitted that the failure to give 'proper, genuine and realistic consideration' to the claim was emphasised by the failure to refer to the evidence of the three treating medical practitioners concerning their opinion that Ms Mafi's condition would deteriorate in the absence of the appellant. It was submitted not to be rational to ignore their evidence on this issue.
54 As noted above, at T[21], the Tribunal referred to the evidence of each of the three treating medical practitioners, the psychiatrist (Dr Way), the endocrinologist (Dr Kok) and the general practitioner (Dr Jirjis). The Tribunal expressly recognised Ms Mafi's many conditions and the assistance provided to her by the appellant. The Tribunal, at T[24], expressly dealt with the lay evidence to the effect that the appellant helped Ms Mafi with her various problems and provided invaluable love, compassion and understanding. The Tribunal had regard to the "evidence that the [appellant] has been a great support to [Ms Mafi] and boosted her morale and confidence" at T[55]. A fair reading of the Tribunal's reasons reveal it accepted those matters.
55 The Tribunal concluded that Ms Mafi would still be able to attend her various medical appointments without the appellant, including availing herself of psychiatric treatment: T[47] and T[49].
56 The Tribunal understood the claim that the appellant's absence would cause Ms Mafi's condition to worsen: T[59]. The Tribunal certainly did not reject the claim that Ms Mafi's condition would worsen. No such conclusion is expressed on the part of the Tribunal and, read in accordance with the principles in Wu Shan Liang, it appears to have accepted that her condition would worsen. Whilst it did not say so in express terms, the Tribunal implicitly accepted that there would be a negative impact caused by the appellant's absence, although she would still be able to attend her appointments: T[59] and [60]. It concluded this did not provide a sufficiently "compelling reason" in the circumstances: T[60].
57 Perhaps a different conclusion might have been reached on the merits by a different decision-maker. However, the Tribunal discharged its function and, in so doing and contrary to the appellant's written submission, it did not act irrationally. For jurisdictional error to be established on the ground the decision was irrational, it must be a decision to which no rational or logical decision-maker could have arrived on the same evidence; the ground cannot be made out if different minds might reach different conclusions: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130], [131] (Crennan and Bell JJ).
58 On the basis that the Tribunal did not fail to consider, or actively engage with, the claims made and the evidence in support of them, grounds 1 and 3 cannot succeed.