Ground 3 - Misunderstanding of applicable law
114 The applicant contended that the Tribunal was required to form a state of satisfaction, reasonably and on a correct understanding of the law, as to whether there was "another reason why" the visa cancellation decision should be revoked.
115 The High Court explained in Craig v The State of South Australia [1995] HCA 58; (1995) 184 CLR 163 at 179 (Brennan, Deane, Toohey, Gaudron and McHugh JJ) that an error of law may comprise jurisdictional error by an administrative tribunal:
If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.
116 Direction 79 is a written direction that was given by the Minister pursuant to s 499(1) of the Act to delegates and the Tribunal about the performance of their functions and the exercise of their powers under the Act. By reason of s 499(2A) of the Act, both the delegate and the Tribunal were required to comply with Direction 79 in performing their respective functions. A failure to comply with a lawful direction made pursuant to s 499(1) can constitute jurisdictional error: FCFY at [63] citing: Williams v Minister for Immigration and Border Protection (2014) 226 FCR 112; [2014] FCA 674 at [34]-[35] (Mortimer J); FKP18 v Minister for Immigration and Border Protection [2018] FCA 1555 at [34] (Kenny J).
117 The state of satisfaction that the Tribunal was required to reach for the purpose of determining whether the visa cancellation decision should be revoked for "another reason" pursuant to s 501CA(4)(b)(ii) must be formed reasonably and on a correct understanding of the law. It is an implied condition of the valid exercise of that power: Goundar v Minister for Immigration and Border Protection [2016] FCA 1203 at [54] (Robertson J) citing Wei v Minister for Immigration and Border Protection (2015) 257 CLR 22; [2015] HCA 51 at [33] (Gageler and Keane JJ) and the authorities referred to in the footnote to that paragraph of their reasons.
118 The applicant contends that the Tribunal acted on a misunderstanding of the applicable law in four respects.
119 First, the applicant contends that the Tribunal erred in having regard to its finding that the applicant's offending had severely impacted on the capacity of the applicant to play a hands-on parenting role to his three children (parenting finding) and its finding that the applicant's criminality in Australia effectively precluded him from earning his living as a qualified panel beater (work finding) in its approach to the consideration in cl 13.1.1(1)(f) of Direction 79. The applicant submitted that neither finding was relevant to the assessment of the nature and seriousness of the applicant's criminal offending to date.
120 I do not accept that the Tribunal erred in taking into account the parenting finding and the work finding in its consideration of the "cumulative effect of repeated offending" for the purposes of cl 13.1.1(1)(f). Given the scope and purpose of the Tribunal's power under cl 13.1 of Direction 79, I do not consider that there is any warrant to limit the matters that can be taken into account in determining the "cumulative effect of repeated offending".
121 The applicant submits that to take into account the parenting finding and the work finding in its consideration of cl 13.1.1(1)(f) would be to impermissibly "double count" these considerations against the applicant, because they are expressly addressed in the context of the considerations in cl 13.2(4) (Best interests of minor children) and cl 14.2 (Strength, nature and duration of ties to Australia) of Direction 79.
122 The applicant sought to rely on the reasoning in Bale v Minister for Immigration, Migrant Services and Multicultural Affairs [2020] FCA 646 (Perram J) (Bale) in support of his alleged impermissible double counting submission. That reliance was misconceived. His Honour was addressing in Bale an argument that the Tribunal had failed to take into account a specific matter, not that a matter had been taken into account for multiple purposes. His Honour stated at [26]:
I do not accept this argument because whichever way one looks at it, the fact that Mr Bale's wife desired for him to remain in Australia was taken into account by the Tribunal. Where a matter is relevant to two or more mandatory relevant considerations, a decision-maker is not usually required to take the matter into account repetitiously: see Hodgson v Minister for Immigration and Border Protection [2017] FCA 1141 at [40] per Tracey J; RZSN v Minister for Home Affairs (2019) FCA 1731 at [67] ff per Anderson J. And, as [54] of the Tribunal's reasons shows, the Tribunal was well-aware that she was one of his victims.
123 Not being required to take into account a matter "repetitiously" is a fundamentally different proposition to prohibiting a matter being taken into account for two or more mandatory considerations. The matters to be taken into account in addressing mandatory and other considerations may well overlap, particularly in circumstances where a consideration is expressed in general terms. It is neither desirable nor, in my view, permissible not to have regard to material that is otherwise relevant to a consideration in Direction 79 on the basis that it is more directly relevant to another consideration in that direction.
124 I am not satisfied, therefore, that any error of law is demonstrated simply on the basis that the Tribunal has taken into account a matter in addressing more than one mandatory or other consideration in Direction 79.
125 Second, the applicant contends that the Tribunal at [97] of its decision applied a "reasonably-minded members test" in relation to cl 6.3(4) of Direction 79. Moreover, the applicant submitted it was unclear what the Tribunal even meant by the "reasonably-minded members test".
126 Clause 6.3(4) provides:
In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
127 The applicant submits that it is not permissible for the Tribunal to adopt a "reasonably-minded" member of the Australian community test for the purpose of addressing the consideration in cl 6.3(4) of Direction 79. In the course of his oral submissions, counsel for the applicant sought to rely on the reasoning of the majority in FYBR v Minister for Home Affairs (2019) 272 FCR 454; [2019] FCAFC 185 (FYBR) in support of the contention that the Tribunal had erred in applying a "reasonably-minded members test". The majority in FYBR (Charlesworth and Stewart JJ) accepted a submission by the Minister that cl 11.3 of Direction 65 (the predecessor to Direction 79) was a deeming provision in that it reflected what the Government has deemed the community's expectations to be, rather than inviting any enquiry as to what the Australian community in fact might expect. It is important to bear in mind that the opening sentence of cl 11.3 provides:
The Australian community expects non-citizens to obey Australian laws while in Australia.
128 It was in that context that Charlesworth J stated in FYBR at [67] that:
To the extent that cl 11.3 contains a statement of the expectations of the Australian community, the clause is "deeming", in the sense explained by Mortimer J in the limited passage from YNQY upon which the Tribunal relied at [54] of its reasons … It is not for the decision-maker to make his or her own assessment of the community expectations and to give that assessment weight as a "primary consideration".
and Stewart J stated at [103]:
The community expectations, as I construe cl 11.3(1), speak normatively; they are to be applied in every case but they are not expressed in relation to any particular case. This means that it would be wrong for the decision-maker to ask themselves a question along the lines of "what would the community expect in this case?" It is also incorrect to construe the community expectation as expressing or requiring, in any particular case, either the grant or the refusal of the visa. In a particularly egregious case, the weight to be afforded the community expectations would be such that a refusal might be thought to be inevitable, and at the other end of the spectrum a refusal might be thought to be unlikely, but in either case and in all the area in-between the community expectation will not express or require one or the other. That is a matter for the decision-maker.
129 The reliance by the applicant on the statements of principle in FYBR to establish jurisdictional error is misplaced.
130 Unlike cl 11.3(1) and the similarly prefaced cl 6.3(2) of Direction 79, there is no express statement in cl 6.3(4) of any expectation of the Australian community. At most, there is a generic reference to the risk of similar conduct in the future being "unacceptable". There is no deemed expectation by the use of the preface "The Australian community expects". Accordingly, the reasoning in FYBR is not apposite.
131 Nor, unlike each of cl 6.3(5) and cl 6.3(6) of Direction 79, is there any statement that speaks in definitive terms as to an expectation of the Australian community, such as the preface to both of those clauses which is in these terms: "Australia has a low tolerance of any criminal or other serious conduct".
132 The Tribunal stated at [97] of its decision:
The terms of paragraph 6.3(4) of the Direction have clear application to the instant facts. Were the Applicant's record of criminal offending in the realms of supplying and/or manufacturing illicit drugs to be repeated, the resulting consequences and harm may very well be so serious that any risk of similar conduct in the future is unacceptable. I am of the view (and I find) that reasonably-minded members of the Australian community would regard this Applicant's history of drug offending to be so serious that they would refuse to accept any risk of its re-occurrence.
133 Even if, contrary to my finding above, it was established that the Tribunal had erred by making a finding as to the views of "reasonably-minded members of the Australian community" in the last sentence of [97], I am not satisfied that there is a realistic possibility that the Tribunal could have reached a different decision. The Tribunal made a number of other findings as to the seriousness of the applicant's drug offences independently of the finding in the last sentence at [97], not least the finding in the second sentence of [97]. Accordingly, such an error would not have deprived the applicant of the "possibility of a successful outcome": SZMTA at [3] (Bell, Gageler and Keane JJ).
134 Accordingly, the applicant has not demonstrated jurisdictional error in this regard.
135 Third, the applicant contends that the Tribunal erred in finding that it was "bound" by the terms of cl 13.2(4)(a) of Direction 79 (concerning the nature and duration of the relationship between any relevant children and the non-citizen) to give less weight to this factor because there had been "long periods of absence". The applicant submits that cl 13.2(4)(a) provides that less weight should "generally be given" where there have been long periods of absence and the use of the word "generally" gives the Tribunal a discretion where less weight "does not necessarily" need to be given because of a factor that takes a case out of that which might pertain "generally".
136 The Minister contends that to seek to identify jurisdictional error by reference to an isolated word reveals an examination of the Tribunal's reasons with "an eye attuned to error". The Minister submitted that the Tribunal's reference to it being "bound" to give less weight to cl 13.2(4)(a) with respect to the applicant's second eldest child was no more than the Tribunal making a determination to give less weight to that subparagraph.
137 The applicant contends that the Minister unsuccessfully sought to advance a similar argument in FCFY.
138 In FCFY at [59], Thawley J identified the error of the Tribunal as follows:
The Tribunal's language, read fairly in accordance with the principles earlier identified, indicates that the Tribunal misunderstood cl 14.2(1). The Tribunal thought that paragraph (a)(ii) required it to give less weight to how long a non-citizen had resided in Australia if there had been limited positive contribution to the Australian community. Paragraph (a)(ii) does not operate in that way. It provides that, where there was positive contribution to the Australian community, there should be an increase in the weight given to "how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child". Paragraph (a)(ii) did not require a decrease in the weight to be given to the length of residence where a positive contribution was limited or absent.
(Original emphasis.)
139 I do not accept that the reasoning of Thawley J assists the applicant in the present context.
140 The alleged error in this case was conflating "bound to give less weight" with "less weight should generally be given".
141 The error in FCFY was "giving less weight" to a consideration because of the limited nature of a factor in circumstances where that factor was expressed as a matter that should provide "more weight" in support of a consideration. It was in that context that his Honour found that paragraph (a)(ii) of cl 14.2(1) did not "require" a decision-maker to give less weight to the length of residence where a positive contribution was limited or absent. His Honour noted that the Minister had submitted that the Tribunal was doing no more than merely stating that less weight was given to that factor because of the applicant's limited contribution. His Honour found that a fair reading demonstrated that the Tribunal considered that it had "no choice" in the matter and that Direction 65 (as Direction 79 then was) required it to give less weight to that consideration. His Honour concluded at [63] that by reason of the error that he had identified at [59], the Tribunal had failed to form a state of satisfaction as to whether there was "another reason why" the visa cancellation decision should be revoked reasonably and on a correct understanding of the law. He found that the Tribunal's misunderstanding was material in the sense that the Tribunal might have reached a different outcome if it had not misunderstood how the clause operated.
142 His Honour concluded at [65] that:
The length of the applicant's residence in Australia, being effectively his entire life, did not have to be given less weight because of his limited contribution to the Australian community. If the Tribunal had decided to give the length of residence more weight than it did, then the strength, nature and duration of ties (including length or residence) would have been more persuasive when it came to balancing the considerations which favoured revocation against those which favoured non-revocation in order to reach the ultimate decision.
143 These findings, however, have to be understood in context. As explained above, in FCFY the Tribunal had proceeded on the basis that if a paragraph in Direction 79 stated that the existence of a matter required it to give more weight to a consideration, then it followed that if the matter did not exist the paragraph also required it to give less weight to the consideration. In this case the position is very different. Here the Tribunal proceeded on the basis that it was "bound" to give less weight to a factor that was otherwise expressed as a factor that should generally be given less weight.
144 Further, the chapeau to cl 13.2(4) provides: "[i]n considering the best interests of the child, the following factors must be considered where relevant …". Paragraph (a) is one of eight factors that are identified. The use of the qualification "where relevant" in the chapeau is consistent with giving a factor no weight in considering the interests of the child where the statement of the factor provides that the factor should generally be given less weight if a particular negative consideration is present.
145 In the circumstances, I am not satisfied that the Tribunal necessarily erred in conflating "bound to give less weight" with "less weight should generally be given". In any event, I am not satisfied that there was a realistic possibility that the Tribunal could have come to a different decision had the alleged error not been made because:
(a) the application of a "less weight should generally be given" approach rather than a "bound to give less weight" approach was unlikely to have resulted in the Tribunal giving any materially different weight to this consideration as "the long periods of absence" would have been relevant to both approaches;
(b) the Tribunal gave significant weight to the considerations in Direction 79 other than "the best interest of the child"; and
(c) the Tribunal's overall decision was not "finely balanced", as submitted by the applicant.
146 Fourth, the applicant contends that the Tribunal erred in finding that no weight could be allocated in favour of the applicant on the basis of cl 14.2(1)(a)(i) of Direction 79. The applicant submitted that the use of the words "less weight" in cl 14.2(1)(a)(i) is not coextensive with "no weight".
147 Clause 14.2(1)(a) of Direction 79 provides:
(1) The strength, nature and duration of ties to Australia. Reflecting the principles at 6.3, decision-makers must have regard to:
a) How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i. less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii. More weight should be given to time the non-citizen has spent contributing positively to the Australian community.
148 It is important to observe at the outset that the question of "less weight" in subparagraph (i) is a reference to "less weight" being given to the factor identified in cl 14.2(1)(a). The factor in cl 14.2(1)(a), in turn, is a factor that must be taken into account in determining the weight to be given to the "strength, nature and duration of ties to Australia" consideration in cl 14.2(1) of Direction 79. Hence if the non-citizen began offending soon after arriving in Australia then it would follow that less weight should be given to the "how long the non-citizen had resided in Australia" factor in cl 14.2(1)(a).
149 The Tribunal found at [331]:
[The applicant] offended less than three years after his arrival. Accordingly, no weight can be allocated in favour [of] the Applicant on the basis of paragraph 14.2(1)(a)(i).
150 The Tribunal did, however, give some weight to the matter identified in subparagraph (ii) in its consideration of the factor in cl 14.2(1)(a). It stated at [332]:
Some measure of weight may be allocable in favour of the Applicant via an application of paragraph 14.2(1)(a)(ii). This is on the basis that he has spent at least some time in Australia contributing positively to the Australian community … Applying the terms of paragraph 14.2(1)(a)(ii) of the Direction as favourably towards the Applicant as I can, I will find that he has made some measure of cumulative positive contributions to the Australian community. That said, only a slight measure of weight is allocable to him pursuant to this sub-paragraph 14.2(1)(a)(ii).
151 There is a certain degree of imprecision in the manner in which the Tribunal expressed its reasoning in this regard. Read literally, the Tribunal appears to have been focusing on the weight it was giving to the two matters identified in the two subparagraphs to cl 14.2(1)(a), rather than the impact of those two matters on the weight it was to give to the consideration in cl 14.2(1)(a).
152 The reference by the Tribunal to the allocation of "no weight" being able to be allocated "in favour" of the applicant with respect to cl 14.2(1)(a)(i) is in substance, if not in form, relevantly a finding that this factor would not favour the applicant in assessing the weight to be given to the "length of residence in Australia" factor in cl 14.2(1)(a).
153 For the reasons outlined above, I am not satisfied that the Tribunal made the alleged error in [331] of its decision. The alleged error proceeds on a misapprehension as to the matter to be given less weight.
154 In any event, I do not accept that there was a realistic possibility that the Tribunal could have made a different decision had it proceeded explicitly on the basis that it would give less weight to the "length of residence in Australia factor" because of the applicant's offending soon after arriving in Australia, rather than proceeding on the basis that no weight would be allocated in favour of the applicant because of his offending shortly after arriving in Australia.