The relevant legal principles as to jurisdictional error
13 It is common ground that before the primary judge the appellant had to demonstrate jurisdictional error in the decision by the Tribunal. The relevant claim of jurisdictional error pursued on appeal concerned the quality of the Tribunal's engagement with the matters relied upon to support the application for review by the Tribunal.
14 Recent decisions in this Court concerning the exercise of powers conferred by the Migration Act 1958 (Cth) have considered the extent to which there may be review for jurisdictional error by reason of a complaint about the extent to which matters raised by an applicant have been addressed in a meaningful way in the reasons given by the decision-maker. In such instances, the complaint is not of a failure to consider a matter that was raised, but rather a complaint about the quality of that consideration in forming the views that support the particular decision.
15 I put to one side those instances where the formation of a particular state of subjective satisfaction is itself a precondition to the conferral of a statutory power. If that is the character of the statutory provision then, without the formation of a state of satisfaction of the required kind, there is no power. Cases of that kind have been considered to be within the same class of case as those where the legislature specifies a power that may be exercised only if a particular factual circumstance exists. In such instances, the repository of the power cannot be the final adjudicator as to whether the pre-condition exists. Irrespective of whether the precondition takes the form of an objective fact or the formation of a subjective state of satisfaction, the Court, on review for jurisdictional error, will set aside the decision if the precondition is not satisfied. Many of the cases describe the precondition as a 'jurisdictional fact', even though it may, in fact, be the existence of an opinion or the formation of a subjective view by the repository of the power. Cases of this kind were recently considered by Derrington J in EHF17 v Minister for Immigration and Border Protection [2019] FCA 1681 at [51]-[58]. The importance of the distinction was explained in Tsvetnenko v United States of America [2019] FCAFC 74; (2019) 269 FCR 225 at [27]-[29], [44] (Besanko, Banks-Smith and Colvin JJ) and in Ali v Minister for Home Affairs [2019] FCA 1900 at [42]-[45] (Collier, Reeves and Derrington JJ).
16 It has been held that s 65 of the Migration Act which imposes an obligation to grant or refuse a visa depending upon whether certain criteria are met, establishes a state of satisfaction as to the criteria as a condition precedent (jurisdictional fact) upon which the grant or refusal of the visa is conditioned: see Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 at [37] (Gummow and Hayne JJ) which reasoning was quoted with approval by four members of the High Court in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [40]-[42] (Gummow ACJ and Kiefel J, as the Chief Justice then was) and at [102]-[103] (Crennan and Bell JJ). The present appeal was not argued on the basis that formation of the required state of satisfaction as to whether there were compelling reasons for not applying the criteria in the circumstances of the case was a condition precedent to a valid exercise of power by the Tribunal.
17 Therefore, the particular category of case to which I refer (of which the present case is an example) is comprised of instances where the formation of a particular state of satisfaction is part of the authority entrusted by the legislature to the administrative decision-maker. The category concerns instances where complaints are made about alleged intramural deficiencies in the exercise of statutory power. In such instances, where review is sought of an exercise of the power, there is an important constitutional boundary to be observed. The formation of the required state of satisfaction is entirely a matter entrusted to the repository of the power. It is not for the Court, on review, to usurp that authority in any way and appropriate to itself, contrary to the statute, the formation of the required state of satisfaction by evaluating whether the reasoning by which the state of satisfaction was formed was correct in the view of the Court.
18 The distinction was captured with characteristic clarity by Brennan J in Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1 in the following way:
The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.
19 However, that is not to say that the quality of the reasoning by which a state of satisfaction by a decision-maker has been formed in the course of the exercise of an administrative decision-making power conferred by statute is unreviewable. Recent decisions of the High Court have recognised that, in the absence of a contrary legislative intent, the conferral of powers of that kind are to be construed as requiring that the state of satisfaction must be reasonably formed: Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541 at [4] (Kiefel CJ, confining the principle to statutory discretionary power), [53] (Gageler J, expressing the principle generally), [78]-[84] (Nettle and Gordon JJ also expressing the principle generally and emphasising that it is a fact dependent inquiry), [131]-[135] (Edelman J also expressing the principal generally and emphasising that its precise content will be based on the terms, scope, purpose and object of the particular statute).
20 Further, where reasons have been delivered for the formation of the state of satisfaction then it is to those reasons that the Court will look to see whether the formation of the required state of satisfaction has been formed within the bounds of reasonableness: Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 at [46]-[47] (Allsop CJ, Robertson and Mortimer JJ). However, it is not every unreasonable step in reasoning that makes the decision reviewable for non-conformance with the reasonableness requirement. It is the formation of the decision as a whole that is required by the statute to be reasonable. Faulty steps in reasoning along the way may or may not provide a proper foundation for a conclusion that the decision as a whole was guided by a state of satisfaction that was outside the statutory bounds of reasonableness. It is not easy to demonstrate unreasonableness of the requisite kind because, usually, the legislature has entrusted to the decision-maker a broad authority as part of the decision-making process to make the assessments and form the conclusions that are required to be made on the available material in order to reach a decision. Therefore, the test for unreasonableness is stringent and extremely confined: SZVFW at [11], [52], [135].
21 However, the significance of the availability of unreasonableness review is that it recognises that the decision-maker does not have unlimited authority when it comes to making the required assessments and forming the conclusions. The point at which the boundary is crossed requires a consideration of the nature of the reasonableness limit. That is a question of statutory construction. It then requires an evaluation of the quality and character of the decision by reference to its outcome or any available reasons. That requires an evaluative judgment to be made.
22 Cases such as the present, where there is a requirement to give reasons, may be seen as giving rise to additional dimensions. A statutory requirement to give reasons will likely itself be construed as requiring that the reasons themselves be reasonable in character. If the form of the reasons lack that character then the statutory procedural requirement for reasons will have been breached. It may or may not be a breach which is of a kind that leads to the conclusion that the formation of the state of satisfaction is itself unreasonable. If it does not have that consequence then issues will arise as to whether the breach of the procedural requirement had a consequence that was jurisdictional.
23 It has long been recognised that not all failures to afford procedural fairness lead to the conclusion that the substantive decision exceeded jurisdiction: Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141 as applied in Minister for Immigration and Border Protection v WZARH [2015] HCA 40; (2015) 256 CLR 326 at [55]-[56] (Gageler and Gordon JJ). More recent decisions of the High Court have been to the effect that such principles are not confined to instances where there is a failure to afford procedural fairness: Nobarani v Mariconte [2018] HCA 36; (2018) 265 CLR 236 at [38]. Rather, they are to be subsumed within a broader concept of materiality which is implicit within all conferral of statutory power upon decision-makers, subject to express contrary provision. It is a principle to the effect that a failure to conform to the requirements of the statute that might otherwise be described as jurisdictional will not invalidate the exercise of power unless the failure is material in its consequence: Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123 at [29]-[30] (Kiefel CJ, Gageler and Keane JJ); and Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 at [45]-[49] (Bell, Gageler and Keane JJ).
24 Whether there may be a category of case where a decision is shown to be unreasonable in the jurisdictional sense, but not materially so is a matter that need not be examined for present purposes.
25 In the present type of case, the appellant complains not that there has been unreasonableness in the sense I have described, but that in forming the required state of satisfaction, the Tribunal failed to engage in an active intellectual process with respect to the critical issue which was the appellant's claim that he was a father to four young children. There is no express or implicit statutory requirement (akin to the reasonableness requirement) to the effect that a repository of a decision-making power must engage in an active intellectual process in undertaking the statutory task. Nor is the decision-making power of the Tribunal when reviewing the merits of a decision made by the Minister as to whether there are exceptional circumstances of the kind required in the present case subject to an implied requirement that the Tribunal (in the shoes of the Minister) must engage in an active intellectual process. Nevertheless, it is not every kind of reasoning, no matter what its quality, that will conform to the statute. For the following reasons, the decision must have the particular quality or characteristics that are to be discerned from the statutory context. It must be a decision of the kind that the statute requires.
26 The expression 'fail to engage in an active intellectual process' (and other like phrases) have each been used in recent decisions to describe a type of deficiency in the quality or character of reasoning or decision-making where there is a statutory requirement to 'consider' particular matters in the exercise of various statutory powers to cancel a visa or to revoke the cancellation of a visa. Those decisions recognise that the statutorily required consideration must have a substantive quality. In that context, it has been said that in order for the required matters to be considered, there must be an active intellectual engagement with them: see the summary in Navoto v Minister for Home Affairs [2019] FCAFC 135 at [87]-[89] (Middleton, Moshinsky and Anderson JJ). So, where a claim is made of jurisdictional error in respect of the exercise of a power that requires a decision-maker to consider specified matters and the claim is made on the basis that the quality of the decision-making fails to conform to the minimum standard required, there must be a qualitative assessment as to whether, in substance, the decision-making task of considering the material has been discharged. Put another way, the question is whether the nature and extent of the consideration that has undertaken had been meaningful: BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96; (2017) 248 FCR 456 at [12] (Bromberg and Mortimer JJ). If not, then the jurisdiction of the decision-maker has been exceeded because the statute required that particular matters be considered (not just noted, referred to, identified or listed). As was recognised by the five member Court in Minister for Home Affairs v Omar [2019] FCAFC 188, an obligation to consider material (and hence undertake a process of consideration that involves an active intellectual engagement with the material that must be considered) may be implicit in the particular statutory provisions. In that instance, the obligation arose because the Minister was required to invite submissions before deciding whether to affirm the revocation of a visa. As there would be no point in requiring such a step to be taken if the Minister could then proceed without considering the material in the submissions, there was a requirement to consider the submissions and to consider them required active intellectual engagement with the matters raised by them.
27 To similar effect, it has been said that the requirement to consider requires matters that must be considered to be given 'proper, genuine and realistic consideration': Bondelmonte v Bondelmonte [2017] HCA 8; (2017) 259 CLR 662 at [43] adopting the reasoning of Gummow J in Khan v Minister for Immigration and Ethnic Affairs [1987] FCA 713; and Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83; (2015) 231 FCR 513 at [23] (Flick, Griffiths and Perry JJ).
28 However, all such epithets must be understood in their proper context lest they encourage a Court to review the correctness of assessments and evaluations the merit of which is a matter for the administrative decision-maker: Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; (2010) 243 CLR 164 at [29]-[30].
29 In Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352 at [47]-[48] (Griffiths, White and Bromwich JJ) expressed the questions that are raised where there is a complaint about the quality of the consideration undertaken which is said to be jurisdictional in the following way:
Thus the central focus in the two proceedings here is on the question whether the Minister engaged in an active intellectual process in considering the merits of the two cases before him. Whether or not there was such an active intellectual process requires the Court to conduct an evaluative judgment, taking into account the available evidence and reasonable inferences, as to all the relevant facts and circumstances of each case. These include, but are not limited to, the nature and volume of the material placed before the Minister to assist his decision-making, as well as other matters which arise from the relevant statutory context. We will discuss some of those statutory indicators shortly.
Before we do, however, it is appropriate to state two matters. First, a finding by the Court that the Minister 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. Secondly, some broad guidance may be obtained from other authorities as to the kinds of circumstances in which such a finding could be made. In referring to these authorities, we do not suggest that the requisite evaluative judgment is to be conducted as though it involves a 'tick the box' comparative exercise by reference to other decided cases. As we have emphasised, each case will necessarily turn on its own particular facts and circumstances.
30 The reasoning in Carrascalao was approved in Omar.
31 The proper approach to be undertaken in such cases was recently summarised by Reeves, O'Callaghan and Thawley JJ in Singh v Minister for Home Affairs [2019] FCAFC 3; (2019) 267 FCR 200 at [37] in the following way:
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 & 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].
32 Nevertheless, for reasons already given in the context of review based upon alleged unreasonableness, in cases where the complaint is that the consideration that was undertaken did not satisfy the statutory requirement to consider, the Court must be appropriately restrained in reaching such a conclusion. Were it not to approach the matter in that way, the Court would be likely to act inconsistently with the statute and undertake the task of considering the merits. The Court must recognise that the legislature has chosen to entrust the making of the decision and all the attendant judgments associated with that task to the decision-maker, not to the Court.
33 In the context of cases where the complaint raised is that there has been a failure to consider material advanced by a party, the limitations on the Court's review jurisdiction were recently expressed in AXT19 v Minister for Home Affairs [2020] FCAFC 32 at [56] in the following way:
Considerable caution needs to be exercised in resolving an argument that a claim has been made in sufficiently clear terms that it should in turn be considered by the Tribunal. The 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. The need for caution arises lest a reviewing Court is propelled from its sole task of undertaking judicial review and into the murky waters of impermissible merits review. The task of a court undertaking judicial review is not to elevate a statement that may have been made in passing by a claimant into a clearly articulated claim in need of resolution. For a Court undertaking judicial review to engage in such a process has all the dangers of the Court resolving a different factual case to the one advanced to the Tribunal and thereby trespassing into merits - and not judicial - review.
34 With the above context in mind, it is now possible to consider the ground of jurisdictional error alleged in the present case. This is not a case where it is contended that the statute, expressly or impliedly, required the Minister (and the Tribunal in the shoes of the Minister) to 'consider' any particular material or matters. Rather, this is a case where the focus is upon a regulation to be applied in the course of making the decision that required a judgment to be formed as to whether the decision-maker was satisfied there were exceptional circumstances as to why the requirements of the regulation should not apply in the particular case.
35 The question raised by the ground of appeal is whether there are particular characteristics of the quality of reasoning by the Tribunal that must inform the lawful formation of the required state of satisfaction and, if so, whether those characteristics were not met in this case. So, would a state of satisfaction that was formed by reasoning that was desultory or superficial or without any real engagement with the available material or by treating the application as if it were of a fundamentally different kind to that which was actually advanced, have the character or quality that would conform to the legislature's expressed intent when it entrusted the decision to an independent decision-maker such as the Tribunal?
36 The general principle to be applied is that any failure to comply with a particular statutory condition by making a decision 'in fact lacking the characteristics necessary for it to be given force and effect by the statute pursuant to which the decision-maker purported to make it' is jurisdictional: Hossain at [24] (Kiefel CJ, Gageler and Keane JJ). There is no exhaustive list of the kinds of errors that will be jurisdictional: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [82] (McHugh, Gummow and Hayne JJ). The necessary characteristics are to be discerned from the statute, applying recognised principles of statutory construction. It is only by reference to a proper understanding of what was required by the statute that there can be an evaluation as to whether the quality of the reasoning means that the decision-maker has exceeded the statutory authority to make a valid decision.
37 In my view, in any particular case there are three aspects that must be considered where a claim is made that there is jurisdictional error because the analysis or engagement evident from the reasoning (or other aspects of the decision-making process) applied in forming a required state of satisfaction lacks the overall quality or characteristics that the statute requires and are necessary for it to be given force and effect.
38 First, the precise statutory language used to describe the nature of the state of satisfaction to be formed. In this case, the legislation required a state of subjective satisfaction to be formed as to whether there were compelling reasons to waive the need to comply with a particular visa requirement.
39 Second, the nature of the repository required to form the required state of satisfaction. In this case, the repository was the Tribunal standing in the shoes of the Minister. In SZQPY v Minister for Immigration and Border Protection [2018] FCA 359, I described at [24] some aspects of the Tribunal's character that may be relevant when considering whether a decision has been made that is within the scope of the decision-making power conferred on the Tribunal:
By entrusting the decisions on review to members of the Tribunal, the legislature must have intended that the decisions to be made would have the character of decisions to be made by the Tribunal generally. Members of the Tribunal must be a judge or a legal practitioner who has been enrolled for at least five years or a person with special knowledge or skills relevant to the duties of a member: s 7 of the AAT Act. They must take an oath to faithfully and impartially perform the duties of the office of a member of the Tribunal: s 10B of the AAT Act. They are independent of any other part of the Executive and do not form part of a Ministerial department. They must disclose any conflict of interest and must not take part in any proceeding in which they have a conflict without the consent of the President of the Tribunal: s 14. The Tribunal has a registry and staff for that purpose. A person commits an offence if the person engages in conduct that obstructs or hinders the Tribunal: s 63.
40 Third, the subject matter and purpose of the power. In this case, the decision concerned an application for a spousal visa by an applicant who was in Australia. The Tribunal's view as to whether the exceptional circumstances requirement was met determined whether the appellant could remain in Australia with his wife and family or would have to leave the country and make a fresh application from outside Australia. As to this third aspect, in the migration context, Allsop CJ (Markovic and Steward JJ agreeing) said in Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; (2018) 267 FCR 628 at [3]:
Public power, the source of which is in statute, must conform to the requirements of its statutory source and to the limitations imposed by the requirement of legality. Legality in this context takes its form and shape from the terms, scope and policy of the statute and fundamental values anchored in the common law: Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 at 5 [9]; Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 357 ALR 408 at 423 [59]. The consequences of these considerations are that where decisions might have devastating consequences visited upon people, the obligation of real consideration of the circumstances of the people affected must be approached confronting what is being done to people. This obligation and the expression of its performance is not a place for decisional checklists or formulaic expression. Mechanical formulaic expression and pre-digested shorthand expressions may hide a lack of the necessary reflection upon the whole consideration of the human consequences involved. Genuine consideration of the human consequences demands honest confrontation of what is being done to people. Such considerations do not detract from, indeed they reinforce, the recognition, in an assessment of legality, that those entrusted with such responsibility be given the freedom of lawful decision-making required by Parliament.
41 Drawing these three aspects together, in this case, the state of satisfaction to be formed (a) was whether the reasons advanced by the appellant were compelling reasons to waive compliance with the criteria for the visa; (b) was that of an independent Tribunal the members of which were appointed for their expertise in administrative decision-making; and (c) had a serious consequence in that it may result in separation for a considerable and indefinite period of time between the parties to a marriage and young children in their care by reason of their marriage.
42 It does not help to reduce the kind of analysis required in order to evaluate whether the statutory standard of satisfaction that there were exceptional circumstances was met by the quality and character of analysis (and therefore intellectual engagement) in the present case to an epithet. The requisite state of satisfaction had to be formed by a decision of the required character. Whether or not that had occurred could only be determined by a proper inquiry upon review, namely an inquiry that focussed upon the nature of the matters advanced by the appellant to support his application and the way in which those matters were addressed in the course of the Tribunal hearing and in the reasons of the Tribunal. The inquiry was not to be undertaken for the purpose of considering whether the Court agreed with the reasoning by the Tribunal, but rather to discern whether the process was of a kind that conformed to the quality of decision-making that the statute demanded.
43 The required inquiry might be expressed as whether there was an active intellectual engagement with the overall nature of the case that was put. But, there is no magic in the formulation 'active intellectual engagement'. Those words are a shorthand description of the need for the required state of satisfaction to be formed in a way that conforms to the quality of deliberation that the statute requires. A decision which lacked that character was reviewable for jurisdictional error for that reason. Indeed to ask the question by reference to the formulation active intellectual engagement risks elevating that language to a status that it does not enjoy. The statutory requirement to be met was the formation of a state of satisfaction as to whether there were circumstances that were sufficiently powerful to waive the requirement to meet the criteria in the regulations. It was the evaluation of the overall quality of the evaluation undertaken (not whether it might be thought to be right or wrong) that was invited by the ground of review.
44 To determine by such a process of reasoning that a decision is beyond jurisdiction is not to engage in merits review. The determination as to whether there were compelling reasons to waive the requirement remains entirely a matter for the Tribunal. It is not the assessment of whether the reasons advanced by the appellant are sufficiently compelling that is the subject-matter of the relevant inquiry. Rather, the question is whether the quality of the reasoning and analysis by the Tribunal meant that the assessment made was not of the character or kind that the statute required when it entrusted to the Tribunal the formation of the state of satisfaction as to whether there were circumstances sufficiently powerful to cause the Tribunal to conclude they were exceptional. The fairness of the decision is not the question. It is the lawfulness of the decision that is in issue.