XFZC v Minister for Immigration, Citizenship and Multicultural Affairs

BACKGROUND FACTS 4 At the date of the Tribunal decision (21 September 2021), the Applicant was a 45‐year‐old male citizen of New Zealand. He arrived in Australia on 9 August 1995. He had six children in Australia, four of whom were minors at that date. His surviving parent (his father) and his 13 siblings all resided in Australia, and he had a large extended family in Australia. 5 The Applicant has an acquired brain injury as a result of a childhood accident, which was further compounded in a motor vehicle accident as an adult. 6 The Applicant had been the holder of a Class TY subclass 444 Special Category visa. 7 On 16 September 2020, the Applicant, having pleaded guilty, was convicted of contravening a family violence intervention order intending harm or fear and two counts of common law assault, for which he was sentenced to an aggregate term of 12 months' imprisonment and fined an aggregate of $750.00. 8 On 27 November 2020, whilst the Applicant was serving his term of imprisonment, the Minister cancelled the Applicant's visa on the basis that he did not pass the character test because of the operation of s 501(6)(a) of the Act (read with s 501(7)(c)). 9 Notice of this cancellation decision was given to the Applicant and he was invited to make representations to the Minister about revoking the cancellation decision within 28 days of receiving the notice. The Applicant made representations within the period. 10 On 29 June 2021, a delegate of the Minister decided not to revoke the visa cancellation. 11 On 8 July 2021, pursuant to s 500(1)(ba) of the Act, the Applicant applied to the Tribunal for review of the delegate's decision. The Applicant was unrepresented and appeared by video‑link. 12 On 21 September 2021, the Tribunal affirmed the decision of the delegate.

DECISION OF THE TRIBUNAL 13 Before the Tribunal, the Applicant conceded that he did not pass the character test in s 501 of the Act and therefore the Tribunal could not reach the state of satisfaction required by s 501CA(4)(b)(i) (Tribunal reasons [29]). The issue before the Tribunal was whether, for the purposes of s 501CA(4)(b)(ii), it was satisfied that there was "another reason" why the decision to cancel the Applicant's visa should be revoked. 14 The Tribunal recognised that, by reason of s 499(2A) of the Act, the Tribunal was required to comply with Direction No 90 - Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (8 March 2021) (the Direction) in considering the application of s 501CA(4)(b)(ii). 15 Two of the principles set out in para 5.2 of the Direction were: (4) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. (5) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious, that even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community. 16 Part 2 of the Direction set out the considerations required to be taken into account in making a decision under s 501CA. Paragraph 7(2) of the Direction provided that the Primary Considerations (set out in para 8 of the Direction) should generally be given greater weight than the Other Considerations (set out in para 9 of the Direction).

Primary Considerations 17 The Primary Considerations required to be taken into account were: (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.

Primary Consideration 8.1: Protection of the Australian community 18 Paragraph 8.1 of the Direction set out the matters a decision‐maker was required to take into account in considering the weight to be attributed to the protection of the Australian community from criminal or other serious conduct. Paragraph 8.1(2) of the Direction required consideration be given 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. 19 The Direction set out the matters to be taken into account in considering each of the 8.1(2) factors. 20 At para [42] of its reasons, the Tribunal noted: Sub-paragraph (a) of paragraph 8.1.1(1) of the Direction [which concerns the nature and seriousness of the conduct] provides that crimes of a violent and/or sexual nature; crimes of a violent nature against women or children, regardless of sentence imposed; and acts of family violence, regardless of whether there is a conviction for an offence or sentence imposed, are viewed very seriously. 21 At para [43] of its reasons, the Tribunal summarised the Applicant's criminal offending in a table reproduced from his Australian criminal history check dated 26 November 2020 and his New Zealand criminal history check dated 22 December 2020: Court Date Offence Result DANDENONG MAGISTRATES COURT 16/09/2020 CONTRA-FAM VIOL INTERV ORDINT HARM/FEAR Aggregate 12 MONTHS imprisonment. Concurrent. DANDENONG MAGISTRATES COURT 16/09/2020 COMMON LAW ASSAULT (2 Charges) With conviction, fined an aggregate of $750.00 CRIMINAL-DAMAGE (INTENT DAMAGE/DESTROY) CONTRAVENE-A CONDUCT CONDITION OF BAIL COMMIT-INDICTABLE OFFENCE WHILST ON BAIL Pending charge 12/07/2020 CONTRAVENE FV IVO INTENT TO HARM/FEAR At the date of issue, these charges have not been determined by a court. RECKLESSLY-CAUSE INJURY This cannot be regarded as a finding of guilt against the individual named above. INTENTIONALLY CAUSE INJURY DANDENONG MAGISTRATES COURT 06/05/2019 CONTRA-FAM VIOLENCE FINAL INTERVENT ORDR With conviction, fined $600.00 with $82.40 statutory costs. MELBOURNE MAGISTRATES COURT 14/07/2014 CONTRAVENE-FAM VIOLENCE INTERVENTN ORDER Aggregate 4 MONTHS imprisonment. Concurrent. RECKLESSLY CAUSE INJURY UNLAWFUL ASSAULT MELBOURNE COUNTY COURT 11/05/2011 AGGRAVATED BURGLARY 2 YEARS IMPRISONMENT. MELBOURNE COUNTY COURT 11/05/2011 ROBBERY 18-MONTHS IMPRISONMENT. 9 MONTHS OF SENTENCE CONCURRENT. MELBOURNE COUNTY COURT 11/05/2011 ATTEMPT ROBBERY 12-MONTHS IMPRISONMENT. 6 MONTHS OF SENTENCE CONCURRENT. DANDENONG MAGISTRATES COURT 15/05/2002 INTENTIONALLY CAUSE INJURY 6 MONTHS imprisonment. Concurrent Sentence is partially suspended under Section 27 of the Sentencing Act 1991. [T]erm to be served is 1 MONTH[] for 18 MONTHS. DANDENONG MAGISTRATES COURT 22/09/1997 Breach re 12/08/1997 UNLAWFUL ASSAULT BREACH OF COMMUNITY BASED ORDER. ORDER CANCELLED. BOTH CHARGES CONVICTED ASSAULT IN COMPANY COMMUNITY BASED ORDER FOR 11 MONTHS. DANDENONG MAGISTRATES COURT 12/08/1997 UNLAWFUL ASSAULT BOTH CHARGES CONVICTED ASSAULT IN COMPANY COMMUNITY BASED ORDER FOR 12 MONTHS Otahuhu DC 10/02/1995 Assault Person With Blunt Instrument Convicted and Sentenced: Supervision by Community Corrections - 10/02/1995 - 6 Months / Non Residential Periodic Detention - 10/02/1995 - 6 Months / Additional Information - U/T ANGER MANAGEMENT Otahuhu DC 11/03/1994 Com Asslt(Domestic)Cr Act(Manually) Convicted and Sentenced: Fine - NZ$400.00

22 The Tribunal considered each of the 8.1.1(1) sub‐paras. 23 The Tribunal was of the view that sub‐para 8.1.1(1)(a) weighed in favour of a finding that the Applicant's conduct was at least serious, and more likely very serious, in nature. The Applicant had pleaded guilty to all offences. The Tribunal noted that, apart from the conviction for aggravated burglary, every prior conviction involved a violent assault on either a female de facto partner or a female in whom he showed an interest whilst at a party. In the 16 September 2020 sentencing remarks, the Magistrate noted that the Applicant's "behaviour demonstrates a propensity for violence against women". 24 In the course of its reasons, the Tribunal made the following observations at paras [46]-‍[54] (emphasis in original): [46] The Applicant provided a statement to the Department on 15 December 2020 and submits in respect to his offending: All of my recent offending relates to the perceived threat and defence thereof to my family and my family units. I have never assaulted any member of the community that was not related to my family unit in some way. My most recent offending was to assault my sister's partner when she was seriously intoxicated and began destroying the home, but [sic] throwing furniture and such like. I reacted in the moment[.] [47] During cross-examination the Applicant was asked about his offending and convictions, he stated: "I admit to my offences, all offences." [48] Under cross-examination, the Applicant did, in the Tribunal's view, attempt to minimise and downplay his behaviour, particularly in relation to the conviction of 16 September 2020. Although he admitted to the offences and pleaded guilty, he described the event to the Tribunal as being more "like a scuffle and push" and one he did not start. He also stated he could not really recall the event as he was heavily intoxicated. [49] As the sentencing remarks for the conviction stated, the Applicant first punched his sister's partner in the face approximately 10-15 times, threw a vase at her, narrowly missing her head, then assaulted his partner, punching her in the face approximately 20 times. [50] [I]t was put to the Applicant by the Respondent that he had no problems recalling straightforward convictions, yet he seemed to remember this incident as being less violent than the Court's record demonstrated. The Applicant in response stated he was "a little but muddled up" because there was [sic] a lot of intervention orders and he had been to Court multiple times that year. [51] It concerns the Tribunal greatly that the Applicant framed the version of events in a way that was at odds with the sentencing remarks, which he downplayed significantly. The Applicant telling the Tribunal that he could not really recall the event because he was "heavily intoxicated" or "a bit muddled up" minimises his involvement and downplays the seriousness of the offending that he pleaded guilty to. This, in the Tribunal's view, demonstrates he cannot be remorseful for the offending. He claims he cannot recall and that goes directly to his insight and ability to reform by way of reflecting on his actions. Although the Applicant told the Tribunal that he was sorry and would not offend again, such statements give the Tribunal no confidence that he fully comprehends the nature of the family violence offending and the sort of offending that he's partaken in. [52] The Victorian Police Service documents, produced under summons, detail a history of repeat offending of violent crimes, crimes of a violent nature against women and acts of family violence. [53] The evidence indicates that, apart from the conviction for aggravated burglary, every prior conviction involved a violent assault on either a female de facto partner, or a female that he showed an interest in whilst at a party. They all involved physical violence against females, both intimate partners and other females known to him. The Magistrate noted in the 16 September 2020 sentencing remarks that the Applicant's "behaviour demonstrates a propensity for violence against women." [54] The Tribunal is of the view that an application of this sub-paragraph (a) of 8.1.1(1) weighs in favour of a finding that the Applicant's conduct is at least serious and, more likely, very serious, in nature. 25 At para [60] of its reasons, the Tribunal noted that sub-para 8.1.1(1)(d) of the Direction pointed a decision-maker to the frequency of a non-citizen's offending and whether there was any trend of increasing seriousness. In relation to sub‐para 8.1.1(1)(d), the Tribunal said: [63] According to the Applicant's oral evidence, his offending is attributable to unresolved substance abuse, of alcohol. There is no doubt that, when he has been under the influence of alcohol, his capacity to assume responsibility for his regular and lawful duties as a non‐citizen, together with his capacity to distinguish between right and wrong are severely impacted. During sentencing on 16 September 2020, the presiding Magistrate stated: "his history shows… that he gets drunk and he beats up women." [64] The nature of his post‐2011 offending is concerning. It involves the commission of offences that demonstrate a persistent disregard for the law and for conditional liberty arrangements, be they: • in relation to violent crimes; • crimes of a violent nature against women; • acts of family violence; and • breaches of bail conditions. [65] There can be no question that his sense of right and wrong has been adversely affected by the impact of unresolved issues with alcohol. 26 Following a consideration of the remaining para 8.1.1(1) factors, the Tribunal concluded (at [83]) that the Applicant's offending and other conduct could be readily characterised as at least serious, and more likely very serious, in nature. 27 In considering the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct for the purposes of addressing para 8.1.2 of the Direction, the Tribunal relevantly noted (at [84]) that: (a) paragraph 8.1.2(2)(a) requires the Tribunal to consider 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) paragraph 8.1.2(2)(b) requires the Tribunal to consider the likelihood of the non‑citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non‑citizen re‑offending[.] 28 In going on to address sub-para 8.1.2(2)(a) of the Direction, the Tribunal relevantly said (bold emphasis added): [86] The Applicant has conceded that alcohol is the main trigger behind his offending. [87] The Applicant has however, contended that the Australian community are not at risk, stating: "I have never assaulted any member of the community that was not related to my family unit in some way". [88] During verbal evidence before the Tribunal, the Applicant on numerous occasions said he was "sorry" for his behaviour and "would not do it again" and wanted a "second chance". [89] The Tribunal notes the Applicant's letter to the Department dated 16 May 2016, regarding his previous visa revocation cancellation process. It relevantly states: Firstly, I would like to apologise to the Department for my behaviour that has brought me in front of you today. More importantly to my victims, their families and friends for my inexcusable behaviour. I would like to make a point to the Department at this time before discussing my National Police Certificate and it is important to note that I received a Brain Injury in my early childhood at the age of 6 years having fallen off a 2-storey house. The injury had a major impact on my life as I struggled as a child with regular mood swings, difficulties in learning and behavioural issues due to the injury. [90] The Tribunal acknowledges that the Applicant has undertaken several rehabilitation courses to address his alcohol dependency, including undertaking the alcoholics anonymous program. However, the Applicant has continued to consume alcohol. As reflected in the tender bundle submitted by the Respondent, the Applicant, in prison, tested positive to alcohol by way of urine sample on 2 January 2021. A prison disciplinary hearing was held, and the Applicant was fined. During cross-examination the Applicant was questioned about his consumption of alcohol in prison, which he admitted to doing. [91] In the Tribunal's view, the submission put by the Applicant that he wanted a second chance, that he was sorry, and would not offend again is untenable given his ongoing consumption of alcohol. The Tribunal is not satisfied that the Applicant's attempts to rehabilitate have been successful, a finding which is further supported by the fact the Applicant has continued to consume alcohol whilst in prison. 29 The Tribunal found (at [100]) that the "Primary Consideration: Protection of the Australian Community" weighed heavily in favour of non‐revocation.

Primary Consideration 8.2: Family violence committed by the non-citizen 30 In relation to the Primary Consideration relating to family violence committed by the non‑citizen (Direction, para 8.2), the Tribunal noted (at [103]) that para 8.2(3) required that decision‐makers have regard to a number of factors, including: c) rehabilitation achieved at time of decision since the person's last known act of family violence, including: i. the extent to which the person accepts responsibility for their family violence[‐]related conduct; ii. the extent to which the non‐citizen understands the impact of their behaviour on the abused and witness[es] of that abuse (particularly children); iii. efforts to address factors which contributed to their conduct[.] 31 In considering sub‐para 8.2(3)(c), the Tribunal said (emphasis in original): [111] For the purpose of paragraph 8.2(3)(c), the Applicant has, in the Tribunal's view, attempted to minimise responsibility for his conduct and does not exhibit any understanding of the impact of his behaviour on his victims, or on any children who may have been present. [112] The Tribunal is not satisfied that the Applicant's efforts to address factors which contributed to his conduct have had an effect on his behaviour. Further, the Applicant claims to have not been the instigator and/or cause of the domestic violence episodes. [113] In reference to the event that took place in July 2014 the Tribunal notes the letter from the Applicant dated 16 May 2016, which was supplied to the Department regarding his previous visa cancellation revocation process, [sic] the letter relevantly states: In July 2014 my ex-partner invited me to a barbeque where all my 5 children were present. I had a couple of drinks for the first time but was determined to drink in moderation. Towards the end of the gathering my 2 youngest kids wanted to spend some time with their father and to stay overnight with me, however, my ex-partner disagreed and she became very hostile towards me and I lost my temper and we began fighting. The police were called and I was charged with Contravening a Family Violence Intervention Order and Unlawful Assault. I received a 4‑month prison sentence. I deeply regret my behaviour on the day and are so sorry my children had to witness their mum and day [sic] arguing but my children understand that it was their mother started the argument. [114] This statement by the Applicant demonstrates he does not take responsibility for his actions and looks to blame others for the reasons behind his offending. [115] As the Tribunal has already found (paragraph [48]) [reproduced in para [24] of these reasons], the Applicant in cross-examination minimised and downplayed his behaviour in relation to the conviction of 16 September 2020. [116] The Tribunal accepts that he has attended various courses, whether they be for his alcohol dependency, anger management issues, or better parenting courses, however, he has continued to offend and the courses he has attended appear to have had little to no impact on his behaviour or insight into his offending. [117] For the purposes of paragraph 8.2(3)(c), the Tribunal is not satisfied that the Applicant accepts responsibility for his family violence related conduct. Neither is the Tribunal satisfied, for the purposes of paragraph 8.2(3)(c)(ii), that the Applicant understands the impact of his behaviour on the abused and witnesses. For the purpose of paragraph 8.2(3)(c)(iii), the Tribunal is not satisfied that the Applicant has made efforts to address factors which contributed to his conduct. 32 The Tribunal concluded (at [119]) that "Primary Consideration: Family violence committed by the non‑citizen" weighed heavily in favour of non‑revocation.

Primary Consideration 8.3: Best interests of minor children in Australia affected by the decision 33 The Tribunal went on to consider the Primary Consideration provided for in para 8.3 of the Direction, being the best interests of minor children in Australia affected by the decision. The Tribunal noted (at [121]) that, at the date of its decision, the Applicant had four minor children (one son and three daughters). The Tribunal also noted (at [122]) that para 8.3(4) of the Direction required it to consider, where relevant, the following factors (amongst others): c) the impact of the non-citizen's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child; … g) evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally; h) evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct. 34 The Tribunal accepted (at [126]) that the Applicant had significant and meaningful relationships with his minor children and that he played a parenting role in their lives, including by providing financial assistance (when not incarcerated) as well as emotional and day‐to‐day support. The Tribunal accepted that he remained in contact with his minor children on a regular basis and played an active part in supporting them whilst he was incarcerated. The Tribunal gave "strong weight" to this factor in favour of the Applicant (at [127]). 35 In relation to its assessment of any negative impact of the Applicant's prior conduct and any likely future conduct on any of the children, the Tribunal found (at [131]): There does not appear to be any specific evidence of an adverse impact of the Applicant's past or future conduct on any of the children, however, the Tribunal considers that the Applicant's past conduct and exposing them to family violence episodes would have impacted adversely on the children, along with his enforced separation from them due to his incarceration. The Tribunal therefore gives some weight in favour of not revoking the cancellation decision. 36 In considering whether there was evidence that any of the children had been, or were at risk of being, subject to, or exposed to, family violence perpetrated by the Applicant, or had otherwise been abused or neglected by the Applicant in any way, whether physically, sexually or mentally, the Tribunal said (at [140]): There is no clear evidence before the Tribunal that any of the children have been specifically subjected to family violence perpetrated by the Applicant or have been abused or neglected by him in any way. There is however information that the children have been exposed to family violence by the Applicant against their mother(s), and this weighs against the Applicant. 37 The Tribunal also considered if there was evidence that any of the children had suffered or experienced any physical or emotional trauma arising from the Applicant's conduct. The Tribunal concluded (at [142]): There is no evidence before the Tribunal that any of the children have suffered or experienced any physical or emotional trauma arising from the Applicant's conduct. 38 The Tribunal found that the Primary Consideration: Best interests of minor children in Australia affected by the decision weighed in favour of revocation (at [144]).

Other Considerations 39 The Tribunal considered the "Other Considerations" provided for in para 9 of the Direction. Paragraph 9.2(1) of the Direction directed the Tribunal to take into account any impediments that the Applicant may face if removed to his country of origin and if required to re-establish himself in that country. In its reasons at [170], the Tribunal considered (emphasis in original): The Applicant is a male in his mid-forties and in [an] apparently good state of physical health. In response to the question in his Personal Circumstances Form "Do you have any diagnosed medical or psychological conditions?", the Applicant ticked the "Yes" box and outlined that he had an "acquired brain injury". The Tribunal accepts that the Applicant has an acquired brain injury based on the documentary evidence on the file. This is also accepted by the Respondent. He will however, if required, be able to access medical care, treatment, and governmental social support in New Zealand for those symptoms/condition(s) to the same (or very nearly the same) level as that available to him in Australia. The Applicant will have access to those services and supports in the context of what is generally available to other citizens of New Zealand. Thus, the Applicant's age and state of health are not factors that attract any measure of weight in relation to this Other Consideration.

The Tribunal's conclusion 40 Based on its consideration of the matters provided for in the Direction, the Tribunal was not satisfied that there was "another reason" for the Tribunal to revoke the cancellation of the Applicant's visa (at [183]).

GROUNDS OF JUDICIAL REVIEW 41 The Applicant contends that the Tribunal's decision to affirm the decision of the Minister's delegate not to revoke the cancellation of his visa was affected by jurisdictional error because: (1) The Tribunal misunderstood or overlooked critical evidence resulting in a constructive failure to exercise jurisdiction. The Applicant contends the Tribunal overlooked and/or misunderstood the evidence of the nature of the Applicant's acquired brain injury in assessing whether the Applicant being "a little bit muddled up" and "totally muddled up" about some of his criminal history was indicative of a lack of remorse or insight in respect of his offending. This error was submitted to be material and therefore jurisdictional. (2) The Tribunal failed to consider "the significant and clearly expressed representation" made by the Applicant that he was acquitted of charges alleging he had committed acts of incest. It was submitted that this error was material and therefore jurisdictional.

Ground 1: Did the Tribunal misunderstand the nature of the Applicant's brain injury? 42 In so far as the first ground of review is concerned, it was unclear whether the Applicant's complaint was that the Tribunal had misunderstood or overlooked critical evidence or whether the complaint was that the Tribunal had failed to address a claim which clearly emerged from the materials before it. The distinction between claims and evidence was somewhat elided. 43 Paragraph 4 of the Applicant's written submissions, stated (emphasis in original): It is uncontroversial that "if the Tribunal makes an error of fact in misunderstanding or misconstruing a claim advanced by the applicant and bases its conclusion in whole or in part upon the claim so misunderstood or misconstrued its error was tantamount to a failure to consider the claim and on that basis can constitute jurisdictional error": [Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at 131 [113] (Robertson J); [2013] FCA 317]. 44 The Applicant referred in his written submissions to the Tribunal's findings at paras [50]-[51] of its reasons (reproduced at [24], above) and stated (emphasis omitted): [10] Those findings reveal that the Tribunal overlooked or misunderstood evidence before it. The Applicant's claim that he was "muddled up" plainly needed to be considered in light of the following centrally relevant evidence: 10.1 The Applicant's submissions dated 15 December 2020 which say "I also have an acquired brain injury, which in addition to my incarceration, increases my disability". 10.2 Sentencing remarks made by Judge Gullaci in 2011 which say "A report from a Neuro-psychologist … was tendered on your behalf … [s]he concluded inter alia … intellectual abilities likely to be in the extremely low range with a full scale IQ of 65". 10.3 Submissions from his counsel recorded in a transcript from a sentencing hearing before a Magistrate in September 2020 which were as follows: [the Applicant] does have quite a low IQ rating and also has in the past - has suffered and does continue to suffer under an acquired brain injury. That's what the Court of Appeal in his 2012 case referred to; a diagnosis of frontal lobe syndrome. [Mr Candlish, who prepared a psychological report produced before the Magistrates' Court in 2020] does, throughout his report, make reference to at least some intellectual and cognitive deficit … 10.4 The Applicant's submissions dated 15 March 2013 which say he "has a significant intellectual disability and impairment of memory and attention likely to be as a result of an organic Brain Impairment". 45 It has been recognised that the distinction between an ignored claim and overlooked evidence may not admit of a bright line. As the Full Court said in Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431 at 450-1 [64] (Kenny, Griffiths and Mortimer JJ); [2013] FCAFC 114, in the context of a claim for a protection visa (emphasis in original): The Minister's contention that any error was of a factual nature, not going to jurisdiction, was developed in large part by reference to a line of cases said to support a distinction between a "relevant consideration" or claim and a "mere failure to deal with evidence". We are not persuaded the line is as bright, or the distinction as encompassing, as the Minister submits. As already discussed above, the concept of "relevant consideration" can be ill‐suited to an analysis of the Tribunal's task in forming a state of satisfaction about the criterion in s 36(2)(a), beyond the obvious proposition that this criterion requires a decision-maker to take into account (and evaluate) the reasons advanced by a visa applicant for her or his fear of persecution … The issue here does not pertain to particular conduct said to be neglected and a relevant consideration. Rather, it pertains to a fundamental feature of the visa applicant's claim, consideration of which is an essential feature of the Tribunal's statutory task. 46 Irrespective of how it is expressed, jurisdictional error is only established if the Applicant discharges his onus of showing that the decision was not made in accordance with the authority conferred by the statute, or that the Tribunal failed sufficiently to exercise the power of review which it was bound to exercise: MZAPC v Minister for Immigration and Border Protection (2021) 390 ALR 590 at 597-600 [29]-[39] (Kiefel CJ, Gageler, Keane and Gleeson JJ); [2021] HCA 17. It is only if the Tribunal fails to carry out, or miscarries in, its task that there can be jurisdictional error. 47 The Tribunal's task was to consider the matters advanced by the Applicant's representations, having regard to the materials before it, in forming its state of satisfaction as to whether there was "another reason" for the visa cancellation to be revoked. Whether described as a submission which clearly emerges from the materials or a fact to be inferred from the evidence, jurisdictional error might be established if relevant material is overlooked or misunderstood in a way that affects the exercise of power: Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 at 175 [27] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ); [2010] HCA 48; Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 351-2 [82]-[84] (McHugh, Gummow and Hayne JJ); [2001] HCA 30. The Applicant's case requires a conclusion that the Tribunal overlooked or misunderstood the materials before it in a way which affected the Tribunal's formation of its state of satisfaction as to whether there was "another reason" to revoke the mandatory cancellation. 48 For jurisdictional error to arise, the materials overlooked must be of sufficient importance and cogency in order to affect the Tribunal's discharge of its statutory task. In Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at 436 [13]; [2019] HCA 3, Bell, Gageler and Keane JJ said (emphasis added) (footnotes omitted): Whilst it is for the Tribunal to assess the relevance of, and the weight to be attributed to, any item of evidence, the Federal Court has properly recognised that the Tribunal would fail to perform its duty of review if it failed to take account of cogent evidence providing substantial support to the applicant's case, including any such evidence contained in a document or report provided to it by the Secretary, in the same way that the Tribunal would fail to perform that duty if it failed to take account of a substantial and clearly articulated argument advanced by the applicant in support of that case. 49 In assessing the importance of the materials said to be overlooked, it is relevant to bear in mind the following principles: (1) A judgment that the Tribunal has failed to consider a claim or matter not expressly advanced is not to be lightly made: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at 22 [68] (Black CJ, French and Selway JJ); [2004] FCAFC 263. (2) The claim or matter must emerge clearly from the materials before the Tribunal: NABE 144 FCR at 22 [68] (Black CJ, French and Selway JJ); Hong v Minister for Immigration and Border Protection (2019) 269 FCR 47 at 66 [69] (Bromwich and Wheelahan JJ); [2019] FCAFC 55. (3) It is not a jurisdictional error to overlook or ignore a piece of evidence. Nor is it jurisdictional error to fail to address a claim that is not substantial. The "fundamental question must be the importance of the material to the exercise of the Tribunal's function and thus the seriousness of any error": SZRKT 212 FCR at 130 [111] (Robertson J), approved by the Full Court in MZYTS 230 FCR at 451 [70] (Kenny, Griffiths and Mortimer JJ). 50 Whether expressed as ignoring relevant material or a failure to consider a submission, in order to determine whether there has been a relevant failure constituting jurisdictional error, it is necessary to examine: (1) the materials before the Tribunal, whether properly described as claims made or matters advanced or evidence provided; and (2) the Tribunal's course of reasoning. 51 The Tribunal's course of reasoning, to the extent relevant, is set out above. It is necessary to address the nature of the materials before the Tribunal.

Materials before the Tribunal 52 The materials before the Tribunal essentially comprised the "G‐Documents" (being copies of the documents which the Minister must provide to the Applicant under s 501G(2) of the Act and lodged with the Tribunal pursuant to s 500(6C) of the Act) and the Minister's Tender Bundle lodged with the Tribunal. The materials before the Tribunal included the representations made by the Applicant to the Minister in accordance with s 501CA(4)(a) of the Act. The Applicant did not submit any witness statements nor supporting documents to the Tribunal, but did provide oral testimony and was cross-examined. 53 In the course of cross-examination, the following exchange took place (emphasis in original): MINISTER'S REP: Now what occurred on that date? 30 March 2019? APPLICANT: Well all of 2019 I was at home at that time when my partner finished work. And we got a phone call from my sister's partner that was the other co-accused early in the afternoon sort of inviting us over to have a few drinks at the house. From what I recall at that time I didn't want to go but my partner was sort of just hassling me to go, because it's my family and that. It's my sister and their partner that's holding, they want us to come over. I didn't really - I wasn't really up for it, because I knew what was going to happen. There's going to be a lot of alcohol consumed on that day. And anyway we ended up over there that night, later on that night and started drinking. And yes, there was a lot of alcohol. They were drinking so much alcohol. And things start by following around like a conversation that wasn't meant to be said and things that was said and that all wasn't really good to sort of listen to at that time when they were drinking. And obviously it turned into a fight between my ex-partner and my sister's partner, and then I sort of got involved as well because of what was going on and that. And yes, I ended up getting in between them and obviously they sort of turned and sort of went against me about, you know, stopping them and that. And I obviously got the charge for assaulting them and stuff. So I sort of - I wasn't in the right mind of frame at that time, because I knew that was going to happen and I sort of just went with them and it just led me to imprisonment. And I got 12 months for it, and I was back here again. MINISTER'S REP: Alright. And just to confirm, what you just talked about, that's your most recent conviction that you're talking about? From September 2020? APPLICANT: Yes. MINISTER'S REP: Okay, alright. I'll come back to what I asked you about, but I'm going to ask you about something you just said then. Because you've just described it as you getting in between your partner and your partner's sister, and you got the charge for assaulting them? APPLICANT: Yes. MINISTER'S REP: Now I'm going to put to you, [Applicant] that that isn't what the sentencing remarks of the courts say. What the courts said is that you thought that your partner was flirting with Ms [X], and then you punched both of them repeatedly in the head while holding them down? APPLICANT: That was - that was (indistinct). That was their statement they said towards me about me saying things like that which wasn't the case. It was nothing like that. MINISTER'S REP: I'm just going to - perhaps it would be useful, [Applicant], to take you to the sentencing remarks, because this is important. It's page 51 of the G documents. And if you could just scroll - that's good, thank you. I'm grateful to the [T]ribunal's Associate. [Applicant], I'm going to read to you a paragraph from the sentencing remarks, okay? APPLICANT: Yes. MINISTER'S REP: It says: On Saturday 11 July 2020, at approximately 9pm, the accused and the victim attended his sister's address … - the victim here being Ms [Y], who I understand was your partner at the time. accused partner, [Ms X] was also present. - and I understand that should say the accused sister's partner. And the four persons drank alcohol together. The accused began accusing [Ms X] of flirting with his partner, the victim. The victim [Ms X] denied the flirting, and the victim Ms [Y] told the accused he was out of line. - that's you. The accused became highly aggressive, began attacking the victim [Ms Y] by pinning her to the couch and repeatedly punching her in the face. Ms [X] attempted to intervene, and the accused responded by also repeatedly punching Ms [X] in the face, approximately 10 to 15 times. And further down it said you punched Ms [Y] approximately 20 times in the face. Now [Applicant], do you accept that you pleaded guilty to these offences? APPLICANT: Yes. Yes, I did (indistinct). The case had - at that time I was doing like - I know what I'd done, and I didn't want the court to sort of carry on with me being in custody waiting for my cell. I admit to my offences, all offences, whatever happened on that night. But the majority of things that was on them wasn't the case of - you know, 20 punches to the face - it was more like a scuffle and push. When they were at it at the beginning, when my partner and [Ms X] were fighting among each other, I got into it and I ended up just pushing and just shoving them apart. And obviously it came back to me getting charged for saying these things, but I did admit to everything that was on there - on the - MINISTER'S REP: It says - [Applicant], the sentencing remarks are very detailed, and they say nothing about what you've just described. So I'm going to put to you that you are attempting to downplay the seriousness of your offending before the tribunal? APPLICANT: No, I'm not. I admit to it there, [Minister's representative]. I did admit to everything that was said, but it didn't look that bad to me on that night. And I did plead up because of the fact that I didn't want the court to carry on putting me on (indistinct) at that time as well. So I'm saying that on that night I did do something, which I can't recall, remembering sort of (indistinct) person (indistinct) which I prosecuted myself too. So keep being remorsed and I'm sorry for my actions on that. And I really have sort of - I have sort of sent a letter to my sister and their partner and asked for them to forgive me, and I apologized to them as well. So - MINISTER'S REP: Don't forgive you - [Applicant], forgive you for what? What did you ask forgiveness for? I mean you've just said that you didn't do what - ? APPLICANT: Because I couldn't recall - which I couldn't recall, because just looking at it again, I haven't seen this document again for a little while. (Indistinct) that 20 sort of times in the case, it was like - I'm still in shock from it, you know? That wasn't me. I couldn't be 20 times, you know. That's what I'm trying to tell you [Minister's representative]. So yes. MINISTER'S REP: But you've just said as well, [Applicant] - you've just said that you were heavily intoxicated and you might not remember. I mean, which is it? Were you heavily intoxicated and can't remember, or do you deny that you did this? APPLICANT: I couldn't remember. I couldn't - I couldn't remember half of this honestly, what happened on that night. MINISTER'S REP: So do you accept then that the court's record of the evidence is more likely accurate than your own memory? APPLICANT: Yes, I do accept it. I do accept the penalty and the charge that they gave me, and I'm sitting here right now with a jail term. And I'm just sorry for my actions. MINISTER'S REP: But [Applicant] - and it's important for the [T]ribunal to understand your level of remorse. I'm going to put to you that you can't - I'm going to put to you that you can't be remorseful for this conduct if you say you didn't do it, can you? APPLICANT: I'm just saying that I couldn't remember this[,] sir. But on top of that, I'm deeply remorse from it. And I've said in here, you're not throwing about things that you heard what I should have done on that night and why, you know. What - you know, I'm going to punch (indistinct) and waited sitting in here, you know, because of this kind of stuff that has happened. And I'm deeply sort of sorry for my actions. … MINISTER'S REP: All right. Now, I'm going to take you to some other information. Page 283 of the tender bundle, please. Now, [Applicant], I'm going to ask you about some things … APPLICANT: Yes MINISTER'S REP: … that you that you may not necessarily have been convicted of … APPLICANT: Yes MINISTER'S REP: All right. Now, you'll see mid-way through page 283 the case review from the Dandenong Police Station. It says that this occurred between you and Ms [Y], An argument got heated to the point where the respondent, - that's you, has lunged at the AFM, - that's Ms [Y], pushing her onto the couch. The respondent has then put his forearm into her neck, pushing down. Now, do you want to tell the [T]ribunal anything about this incident? APPLICANT: Well there's nothing that - there's nothing that happened like that which I'm - I'm just reading it, and (indistinct) I didn't do that. MINISTER'S REP: All right. Now, on 282, so the page up, this is a statement by Ms [Y] essentially withdrawing the charges but in the statement she says that you were holding her down. Do you accept that's what you were doing? APPLICANT: I was trying to calm her down there, [Minister's representative], and everything. I wasn't - there wasn't any - like, what they made it out to be like in the forearms. I sort of just, you know, just grabbed at her and sort of hugged her more likely, just to calm herself down, you know? So that was it. MINISTER'S REP: If you could please go to page 10 of the tender bundle … Now, [Applicant], this incident is said to have occurred [] in Dandenong? APPLICANT: Yes. MINISTER'S REP: And it's said that you - and you'll see there at paragraph 6, The accused came towards the victim, - Ms [Y], I understand. We can see from paragraph 2 above. The accused came toward the victim and hit the victim in the back of the head with a closed fist. The victim turned her head before the accused hit her because she knew what was coming. The victim felt pain and fell to the ground on her right hand. You then walked away. Now, were you convicted of breaching your Family Violence Intervention Order for this? Is that what happened? APPLICANT: No. No. That - I can't recall that happening and, yes, all I remember, if it's (indistinct) I did say that I walked away from her sort of getting angry and that at that time, so that wasn't - I can't remember sort of being convicted for that because it didn't happen. MINISTER'S REP: All right. Can I just ask you, then, [Applicant]? APPLICANT: Yes. MINISTER'S REP: In your police certificate, at page 35 of the G documents, you have a conviction dated 6 May 2019 for Contravene Family Violence Intervention Order. What was that conviction for? APPLICANT: 6/5/2019? MINISTER'S REP: Yes? APPLICANT: I honestly can't recall that, [Minister's representative]. Because on that period of time there was a lot of phone calls and intervention order being made. 2019. I think, from 2018 to 2019, with exactly the same kind of them, with my (indistinct) partner that I had at that time and I can't really honestly recall any of those things down on 6/5/2019. MINISTER'S REP: So you don't recall any of those. But you've just said to me that you do recall that the incident that I just took you to didn't happen? APPLICANT: Yes. No, because nothing of that kind of - yeah, didn't happen on that one you were saying on that (indistinct). MINISTER'S REP: So, [Applicant], can you see the issue there? You can remember - you can't remember, you know, straight-forward convictions on your record, but you seem to be able to remember this incident and that you were less violent than the incident claims? APPLICANT: Sorry, yeah, it's just - I'm just a little bit muddled up because most of these things back in that time when I'm like - you know, like I said before, you know, there was a lot of intervention order and that. You probably see it on the record there, I've been to court at least 18, 19 time in that one year, which I never ever sort of - I don't know if anyone's been in that kind of - like, you know, my situation, or anything due to the fact of intervention order or family violence, which majority of the statements that she has made to that wasn't really, you know, wasn't true. And I am sort of totally muddled up from that, you know, that time of the - on that - on 2019. Because there are records that shows that, you know, I've been to court 18, 19 times in the court house, like, every month or every two months, for allegations that have been made towards me there, [Minister's representative]. That's what I'm saying that I can't recall half of the stuff. But really, (indistinct) one day he just - we just (indistinct) to before, I sort of never got that because I did walk away from, you know, from her sort of, you know, getting angry in that time. 54 In addition to the letter extracted by the Tribunal at para [89] (reproduced above at [28]), the G Documents relevantly included the following: (1) Sentencing remarks made by the sentencing judge on 11 May 2011, in which the judge noted: [10] … [A]t the age of six, you suffered a fall and were, according to your report, in a coma for a number of months. Your recovery was slow and your family moved to New Zealand to seek better medical treatment and better educational opportunities for you. You have suffered a brain injury as a result of that fall. You engaged in abusing alcohol and drugs from your teenage years. In recent years, you have abused amphetamines … [11] … A report from a Neuro-psychologist … was tendered on your behalf. She concluded inter alia (1) That your intellectual abilities [are] likely to be in the extremely low range with a full scale IQ of 65. (2) That you have a number of deficits … (3) That you are not good at recognising the likely outcomes of actions and choices, as well as generalising or appreciating probable consequences of specific actions. (4) That you are further restricted by lack of confidence and poor self-esteem which makes you vulnerable to having decisions imposed on you. (5) Testing indicates that you are into the range of significant clinical depression. (6) That you demonstrate several significant cognitive difficulties. (7) That you justify diagnosis for a frontal lobe syndrome … [12] I turn to matters to be taken into account in your favour … (4) You have a low intellect as a result of an acquired brain injury, and accordingly the principles as set out in [R v Verdins (2007) 16 VR 269; [2007] VSCA 102] apply to you and require that both specific and general deterrence be sensibly moderated. (2) A submission dated 15 March 2013, made on the Applicant's behalf to the Department of Immigration and Citizenship, in respect of a proposed cancellation of the Applicant's visa, in which Victoria Legal Aid wrote: A neuropsychological report provided to the Court at [the Applicant's] most recent court appearance indicated he scored the following: • Verbal IQ- 67, • Performance IQ- 69 • Full Scale IQ- 65 The report confirms that [the Applicant] has a significant Intellectual disability and impairment of memory and attention likely to be as a result of an organic Brain Impairment. (3) The transcript of proceedings in the Magistrates' Court in Dandenong held on 16 September 2020, in which a psychological report obtained from Mr Candlish was discussed. Mr Edwards, Counsel for the Applicant, is recorded to have said: MR EDWARDS: [P]articularly what the Court of Appeal have said with respect of [the Applicant's] personal circumstances - that his IQ and also the diagnosis of a frontal lobe syndrome, which is touched upon also in Candlish's report. Although, he doesn't comment on it because it's not his area of expertise. And, later, in exchange with the sentencing judge: HIS HONOUR: All right. Mr Edwards, looking at the Candlish report, your client either doesn't recall or minimises his violence … MR EDWARDS: … In terms of what I would point to, at least with the minimise or the lack of memory, that in some ways can be attributed to the fact that [the Applicant] does have quite a low IQ rating and also has in the past - has suffered and does continue to suffer under an acquired brain injury. That's what the Court of Appeal … referred to; a diagnosis of frontal lobe syndrome. Candlish himself does, throughout his report, make reference to at least some intellectual and cognitive deficit, so that in my submission does go (indistinct) with respect of those facts. In my submission, Your Honour, that is something particularly - his mental function is something that is - it is mitigatory, albeit he is at the point where that is intimately linked with his consumption of alcohol in the community. (1) A submission to the Case Officer within the Department of Home Affairs made on 15 December 2020, in which the Applicant submitted under the heading "Further Conclusions Comments" that: While I have attempted to put my case as best I can, I do not have access to a legal practitioner or legal aid for this matter. I have some literacy issues and require assistance even to prepare this document. I note I also have an acquired brain injury, which in addition to my incarceration, increases my disability.

Construction of the Tribunal's reasons 55 When read in context, para [51] of the Tribunal's reasons (reproduced at [24], above) is to be fairly understood as recording the Tribunal's concern that it was not satisfied that the Applicant appreciated the gravity of the actions for which he had been convicted. That lack of satisfaction was based on the fact that the Applicant had recounted the events in a manner which was not accurate. The Applicant's narration of events was not accurate because it understated or downplayed the events as recorded in the transcript of his sentencing hearing. It was the Applicant's inability to recall, and not the reasons for the Applicant's inability, that were of concern. The Tribunal could not be satisfied that the Applicant had insight into the seriousness of his offending because the Applicant could not recall the events accurately. By stating that it did not consider that the Applicant had demonstrated that he was "remorseful", the Tribunal was saying no more than that it had "no confidence that he fully comprehends the nature of the family violence offending and the sort of offending that he's partaken in". The Tribunal therefore could not be satisfied that the Applicant took responsibility for his actions: Tribunal reasons [51]. 56 Whether the Applicant's memory difficulties were attributable to general confusion, the effluxion of time, alcohol abuse or an acquired brain injury was not to the point. The critical point was that the Tribunal was not satisfied that the Applicant comprehended the nature of the actions he had committed and, as a result, the Applicant lacked insight into the nature of his offending. Because of that lack of insight, the Tribunal had concerns about his ability to reform by reflecting on his actions. This is confirmed by the manner in which the Tribunal addressed the extent to which the Applicant understood the impact of his behaviour at paras [111]-[117] of the Tribunal's reasons (reproduced at [31], above). 57 On this reading, any impact of the Applicant's brain injury on the manner in which he responded to cross-examination was not relevant to the Tribunal's reasoning. There was accordingly no failure to consider a relevant submission or relevant evidence that could give rise to jurisdictional error.

Cogency of Evidence or Submission 58 If that construction of the Tribunal's reasons is not correct, but rather the Tribunal (at [51] of its reasons) was casting doubt on whether the Applicant had a genuine inability to recall, the Applicant has nonetheless not established jurisdictional error. 59 The evidence established that the Applicant had an acquired brain injury. The existence of the Applicant's acquired brain injury was thus an established fact. The evidence also established that the Applicant had "cognitive difficulties". 60 Reading the Tribunal's reasons as a whole, it cannot be said that the Tribunal overlooked the Applicant's brain injury. It expressly referred to that injury and the Applicant's learning difficulties in its reasons at paras [6], [16], [85], [89] and [170]. The Applicant's submission to the Department, quoted by the Tribunal at para [89], was that the Applicant, as a child, had suffered "regular mood swings, difficulties in learning and behavioural issues due to the injury". 61 Whilst the evidence established that the Applicant had suffered an acquired brain injury and suffered "cognitive difficulties", the evidence of what was encompassed by the Applicant's "cognitive difficulties", and the extent to which those difficulties or impairments were attributable to the acquired brain injury, as opposed to long‐term alcohol abuse, was far less cogent. 62 The evidence before the Tribunal was that a neuropsychologist's report had been prepared and tendered into evidence in proceedings before the County Court of Victoria in 2011. The report itself was not in evidence in this proceeding and did not form part of the materials before the Tribunal. The County Court found that the report recorded a conclusion that the Applicant was "not good at recognising the likely outcomes of actions and choices, as well as generalising or appreciating probable consequences of specific actions". There was no finding that the report recorded a conclusion in relation to the impact of the injury on an ability to recall or recount past events or past actions. The record of the content of that report therefore rose no higher than a record of a conclusion relating to the Applicant's difficulties in foreseeing probable consequences of future actions. The summary of conclusions provided little, if any, explanation of any impact that the Applicant's brain injury may have had on the Applicant's ability to recall and recount events. 63 Before the Tribunal, it was accepted that the Applicant had abused alcohol over many years and the Tribunal found (at [63] of its reasons) that when he had been under the influence of alcohol, the Applicant's capacity to assume responsibility for his conduct, together with his capacity to distinguish between right and wrong, was severely impacted. There does not appear to have been any evidence before the Tribunal as to the interaction between the Applicant's acquired brain injury and the effects of the Applicant's alcohol abuse. 64 The evidence did not clearly establish that the acquired brain injury was the cause of an inability to recall events or impaired the Applicant's ability to retrieve memories in an orderly way. 65 A speculated nexus between the Applicant's acquired brain injury and his inability to recall and recount past events relating to actions that had given rise to his convictions was drawn by the Applicant's legal representatives in oral submission before the sentencing magistrate in 2020 and in written submissions by Victoria Legal Aid. Absent the medical reports, the evidence of nexus between the brain injury and confused memory before the Tribunal was limited to evidence of those submissions, about which I make the following observations: (a) The submission made at the 2020 sentencing hearing appears to be based on supposition and speculation from the bar table. The transcript of that hearing records that the psychologist's report filed in respect of that hearing did not comment on the earlier diagnosis of frontal lobe syndrome because it was not the author's area of expertise. The transcript also records Counsel's concession that the Applicant's mental function was intimately connected with his alcohol consumption. (b) The submission of Victoria Legal Aid refers to no more than an "impairment of memory and attention" but does not record to what aspects of memory or intellectual function reference was being made. 66 In these circumstances, evidence that submissions had been made in the past cannot be equated to evidence of a medical basis for those submissions at the time the submissions were made, much less than at the time of the Tribunal hearing. 67 The material before the Tribunal fell well short of establishing as a fact that, as at the date of the Tribunal hearing, the Applicant's acquired brain injury would be capable of explaining the Applicant's inability to recall his participation in past events and the Applicant's inability to provide accurate responses to questions relating to those events. The evidence of the content of the report of the neuropsychologist was at too generalised a level to constitute a claim that the acquired brain injury and the diagnosis of "frontal lobe syndrome" were capable of explaining the Applicant's inability to accurately recall and recount events. A reference to "cognitive difficulties" or "cognitive deficit" does not identify how those difficulties translate into an impact on the Applicant's ability to recall or recount his actions. 68 No submission was expressly made to the Tribunal that the Applicant's acquired brain injury was explicable of the Applicant's responses in cross-examination or explicable of the Applicant expressing his recollections in a way which understated his actions. Nor, given the materials before the Tribunal, does such a matter clearly emerge from the materials before the Tribunal. 69 There was no failure by the Tribunal giving rise to jurisdictional error.

Ground 2: Failure to consider the Applicant's acquittal representations 70 The second ground of review is rejected. 71 In forming its state of satisfaction required by s 501CA(4), the Tribunal is not required to take into account every matter raised in representations made to it in order to perform its statutory task. As the Full Court said in Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 287 FCR 294 at 302 [27] (Burley, Colvin and Jackson JJ); [2021] FCAFC 172: (1) If representations are made to the Minister, a statutory obligation arises on the part of the Minister to form a state of satisfaction as to whether the person passes the character test or there is "another reason" why the original decision should be revoked. (2) The state of satisfaction must be formed by reference to the representations such that a failure to consider the representations as a whole would be a failure to consider a mandatory relevant consideration. (3) The individual matters raised in the representations are not each mandatory relevant considerations and therefore do not need to be brought to account in the making of the decision such that they must form part of the considerations that give rise to the required state of satisfaction. (4) However, a state of satisfaction that is formed without considering a substantial or significant and clearly expressed claim made in the representations that there is a particular reason why the visa cancellation decision should be revoked is not a state of satisfaction of the kind required by the statute. (5) Further, there must be a real and genuine consideration of each such substantial or significant and clearly expressed claim. (6) If the state of satisfaction is formed that there is "another reason" why the original decision cancelling the visa should be revoked then the Minister must revoke the cancellation. 72 There is no obligation on the Tribunal to make actual findings of fact as an adjudication of all material claims made to it: Plaintiff M1/2021 v Minister for Home Affairs (2022) 400 ALR 417 at 425 [24] (Kiefel CJ, Keane, Gordon and Steward JJ); [2022] HCA 17; Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane (2021) 395 ALR 403 at 407 [14] (Keane, Gordon, Edelman, Steward and Gleeson JJ); [2021] HCA 41. 73 The manner in which a decision‐maker must engage with a representation made to it in order to discharge its statutory duty depends on the circumstances. As the High Court explained in Plaintiff M1/2021 400 ALR at 425-6 [25] (Kiefel CJ, Keane, Gordon and Steward JJ) (footnotes omitted): It is also well-established that the requisite level of engagement by the decision-maker with the representations must occur within the bounds of rationality and reasonableness. What is necessary to comply with the statutory requirement for a valid exercise of power will necessarily depend on the nature, form and content of the representations. The requisite level of engagement - the degree of effort needed by the decision-maker - will vary, among other things, according to the length, clarity and degree of relevance of the representations. 74 The Applicant's representations concerning his acquittal on incest charges could have material relevance only if the Tribunal took into account the allegations in forming its state of satisfaction. The Court has no basis for considering that the allegations or charges were in any way taken into account by the Tribunal in coming to its conclusion that the Applicant's conduct is at least serious and more likely very serious in nature. 75 The Tribunal made no express reference to alleged acts of incest or charges relating to those alleged acts in its reasons. In summarising the Applicant's criminal history (at [43]-[45] of its reasons), the Tribunal confined its consideration of the nature of the Applicant's offending to those offences for which he had been convicted or for which charges were pending. 76 The Applicant contends that it is to be inferred that the Tribunal took the allegation into account based on para [52] of its reasons (set out at [24], above). The Victorian Police Service documents included material about unproven allegations of incest. The Applicant submitted that, in making its findings at paras [52] and [53] of its reasons, it was "plain that the Tribunal considered the [unproven allegations]". 77 That contention is rejected. No inference should be drawn that the Tribunal took the allegations into account for the following reasons: (a) First, the Tribunal was statutorily obliged to provide reasons for its decision. The obligation to provide reasons for a decision made under s 500 of the Act is sourced in s 43 of the Administrative Appeals Tribunal Act 1975 (Cth) and, in particular, s 43(2): Hong (2019) 269 FCR at [61]-[62] (Bromwich and Wheelahan JJ) (cf Minister for Home Affairs v HSKJ (2018) 266 FCR 591; [2018] FCAFC 217 where it was assumed that s 430 of the Act required the Tribunal to provide a written statement of its reasons). The Tribunal's reasons did not refer to unproven allegations which were not subject to pending charges. The Court is entitled to infer that the Tribunal did not consider that any matter not referred to in that statement was material to its reasons: Yusuf 206 CLR at 338 [35] (Gaudron J), 346 [69] (McHugh, Gummow and Hayne JJ) (albeit in the context of s 430 of the Migration Act). (b) Second, it cannot be inferred from the Tribunal's reference to "Victorian Police Service documents" which detailed "a history of repeat offending of violent crimes, crimes of violence against women and acts of family violence" that the Tribunal took into account unproven allegations contained in those documents in circumstances where the Tribunal reasons carefully referenced only those crimes and acts for which the Applicant was convicted or in respect of which charges were pending. (c) Third, at the conclusion of the Tribunal hearing, the Minister's representative expressly stated that he did not place any weight on the material relating to alleged abuse and that he did not press any submission about it. The fact that there is no reference in the Tribunal's reasons to the unproven allegations is consistent with the Tribunal accepting the Minister's disavowal of reliance on those allegations. (d) Fourth, it is clear from the manner in which the Tribunal considered the interests of the minor children that the Tribunal looked favourably upon the relationship the Applicant had with those children. It found that the interests of the Applicant's minor children weighed in the Applicant's favour. Any reference to exposure to acts of family violence in the context of that consideration was expressly limited to acts of violence against their mother. It is inconceivable that the Tribunal would omit reference to past allegations of incest in such a context if it were taking those allegations into account in any way. 78 Because its reasons did not take into account the unproven allegations, there was no cause for the Tribunal to refer to the Applicant's representations denying those allegations. The representations made by the Applicant in respect of these allegations were irrelevant to the Tribunal's reasoning. The Tribunal made no error in failing to make findings in relation to the Applicant's representations concerning his acquittal of the charges relating to those allegations. 79 The second ground of review is dismissed.

ORDERS 80 The Applicant's application for judicial review is dismissed. The Applicant is to pay the First Respondent's costs, to be assessed by a Registrar on a fixed sum basis if not agreed. I certify that the preceding eighty (80) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hespe.