Consideration
22 In our opinion, his Honour properly rejected the first and second grounds for review as merely expressing disagreement with the merits of the delegate's findings. Those grounds did not identify any subject that could have amounted to a jurisdictional error and his Honour's reasons for so holding were not deficient. Albeit summary, they were adequate in all of the circumstances. The matters that the appellant raised in oral submissions were not related to any of the complaints in his first two written grounds.
23 His Honour was also correct to characterise the third ground as amounting to a "bare assertion" that did not identify any relevant legal error. His Honour's reasons for characterising the third ground in that way were not inadequate. In our opinion, the matters that the appellant raised in oral argument cannot be regarded as furnishing particulars to that ground. For those reasons, ground 1, 2, 3 and 5 in the further amended notice of appeal must be rejected. For the same reasons, we reject ground 4 to the extent that it alleged that his Honour erred by failing to interpret the written grounds differently in light of the oral submissions made before him at the hearing.
24 However, as we have found above, his Honour should have identified what the appellant put orally as a new argument or ground and given express reasons for rejecting it. That is because it was not covered by any of the three grounds of the application.
25 The appellate jurisdiction that s 24(1)(d) of the Federal Court of Australia Act 1976 (Cth) (the Federal Court Act) confers on this Court is to hear and determine appeals from the Federal Circuit Court exercising its original jurisdiction under, relevantly, the Migration Act. In the exercise of its appellate jurisdiction, s 28 of the Federal Court Act gives this Court power to make a variety of orders, including orders setting aside the judgment appealed from and remitting the proceeding to the Federal Circuit Court "for further hearing and determination" (s 28(1)(c)), or granting a new trial "on any ground upon which it is appropriate to grant a new trial" (s 28(1)(f)).
26 In an appeal, s 27 of the Federal Court Act provides that the Court:
shall have regard to the evidence given in the proceedings out of which the appeal arose, and has power to draw inferences of fact and, in its discretion, to receive further evidence.
27 A judge has a duty to give reasons for his or her decision in proceedings, such as was before his Honour, that finally or summarily disposes of proceedings. A failure to give reasons on a material issue of fact or law is itself an error of law: Fleming v the Queen (1998) 197 CLR 250 at 266 [22] per Gleeson CJ, McHugh, Gummow, Kirby and Callinan JJ. That is because the absence of reasons makes it impossible for an appellate court to determine whether or not the dispositive order or judgment was based on an error of fact or law: Fox v Percy (2003) 214 CLR 118 at 126 [24] per Gleeson CJ, Gummow and Kirby JJ. In addition, the parties, particularly the losing party, are entitled to an explanation by the judicial officer of the reasons that he or she had to justify the use of the court's judicial power to decide the controversy in the manner effected by the orders. As Gaudron, Gummow, Hayne and Callinan JJ said in Roy Morgan Research Centre Pty Limited v Commissioner of State Revenue Victoria (2001) 207 CLR 72 at 84 [26]:
The disappointed [party] and any court asked to review the refusal must, however, be able to know from the reasons given by the primary judge why the judge reached the decision.
28 In addition, ex tempore reasons given by judges and magistrates are not expected to be perfect. Parties often want, and need, to know where they stand at the end of a contested hearing and do not require detailed or more refined reasons such as they might obtain from a reserved decision, that may be appropriate in other situations. As Flick J observed in BKL15 v Minister for Immigration and Border Protection (2016) 241 FCR 450 at 455-456 [16]:
the standard is not a standard of perfection. The judicial context in which decisions are made must necessarily be recognised - including (for example) a recognition whether a decision is of an interlocutory or final character and whether ex tempore reasons have been provided. Indeed, the very prospect that ex tempore reasons may not adequately address the issues under consideration should sound a note of warning to the primary judge about the need to reserve a decision for greater consideration. When an ex tempore judgment is delivered, however, it "should not be picked over" and "appropriate allowance should be given for the pressures under which judges … are placed by the volume of cases coming before them": Maviglia v Maviglia [1999] NSWCA 188 at [1] per Mason P; Cicek v Estate of the late Solomon [2014] NSWCA 278 at [140] per Ward JA (Meagher and Barrett JJA agreeing); Mega-top Cargo Pty Ltd v Moneytech Services Pty Ltd [2015] NSWCA 402 at [24] per Leeming JA (Gleeson JA and Emmett AJA agreeing). Matters of complexity requiring "judicial reflection" do not usually lend themselves to ex tempore reasons for judgment: Z v Mental Health Review Tribunal [2015] NSWCA 373 at [102] per Bergin CJ in Eq. See also: [2015] NSWCA 373 at [180] per Emmett AJA.
29 There is a distinction between a failure to give any, or any sufficient, reasons, on the one hand, and a failure to consider a material question of fact or law on the other. The nature of the relevant failure will be apparent from consideration of the issues before the court whose decision is under appeal or review and the reasons for its decision.
30 When the appellant orally addressed his Honour, he said that the delegate had not taken into consideration his claim that he was, in effect, required to, and the only person who could, provide his brother with 24 hour assistance. The delegate was not obliged to give the appellant notice of the matters he was considering in relation to the material which the appellant had provided in support of his application or to point out its inadequacies. Rather, the function of the delegate was to consider, as a relevant consideration, what the appellant had asked him to look at in the course of making his decision. The delegate had no legal duty to ask the appellant to supplement or clarify any deficiencies that the delegate may have perceived in the material that the appellant had provided in support of his application for a waiver of condition 8503. In SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at 166 [48], Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ held that:
Procedural fairness does not require the [decision-maker] to give an applicant a running commentary upon what it thinks about the evidence that is given.
31 In our opinion, his Honour was correct to find that the delegate had not denied the appellant procedural fairness. However, his Honour's reasons did not summarise or address in terms, the appellant's argument that he was the only person who could provide his brother with the necessary assistance. As the appellant's counsel put in argument to us, the gravamen of what he had said orally to his Honour was that the delegate had not addressed his written claim that his brother was "currently totally dependent on me physically, emotionally and psychologically", and that the appellant was "the only available person looking after him on a 24 hour basis".
32 While, his Honour may have had this argument in mind, when he said what he did in [10] of his reasons set out at [15] above, that terse passage did not deal expressly with or consider the legal issue that the appellant had raised as a clearly articulated claim that the brother's need for assistance was effectively at the level of requiring 24 hour a day assistance and that only he, the appellant, could provide this: cf. NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at 22 [68]. It would have been appropriate for his Honour to have identified expressly this argument and to have given a reasoned explanation for rejecting it, because it amounted to a new ground of review.
33 However, in the circumstances, the appellant has not suffered any practical injustice from his Honour's failure to address that claim: cf. Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at 14 [37] per Gleeson CJ. In fact, the delegate did deal with this claim in coming to his decision, and for the following reasons, made no jurisdictional error in the way in which he disposed of it.
34 In approaching the review of the delegate's reasons, however, it is important to appreciate that he had no statutory duty to explain why he exercised his power in the way he did. In Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173 at 185-186 [25] French CJ, Bell, Keane and Gordon JJ said:
It is well settled that in the context of administrative decision-making, the court is not astute to discern error in a statement by an administrative officer which was not, and was not intended to be, a statement of reasons for a decision that is a broad administrative evaluation rather than a judicial decision [Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272, 278, 282]. It is possible that error of law on the part of the Delegate might be demonstrated by inference from what the Delegate said by way of explanation of his decision; but it must be borne in mind that the Delegate was not duty-bound to give reasons for his decision [Migration Act 1958 (Cth), s 66(2)(c), (3).], and so it is difficult to draw an inference that the decision has been attended by an error of law from what has not been said by the Delegate [Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 at 605-606 [31]-[33], [66]-[73]]. Further, "jurisdictional error may include ignoring relevant material in a way that affects the exercise of a power" [Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 at 175 [27]; see also Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 351-352 [82]-[84]]; but here the plaintiff does not show that relevant material was ignored simply by pointing out that it was not mentioned by the Delegate, who was not obliged to give comprehensive reasons for his decision. Further, the Delegate's letter is "not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed" [Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272]. (bold emphasis added)
35 Their Honours decided the meaning of the word "compelling", in its context in cl 202.222(2) of Sch 2 of the Migration Regulations, which required the Minister to be "… satisfied that there are compelling reasons for giving special consideration to granting the applicant a permanent visa" (emphasis added) (see 258 CLR at 180 [13]). They said (at 187-188 [31]) that the state of mind of the decision-maker under that clause:
must be reached by reference to "reasons" that are "compelling"; that is, those reasons must "force or drive the decision-maker" … "irresistibly" … to be satisfied that "special consideration" should be given to granting the particular application. (emphasis added) (citations omitted)
36 Here, reg 2.05(4)(a) provided a precondition for the grant of a waiver, namely that the waiver could only be given if "compelling and compassionate circumstances" had developed. The delegate had the function of assessing the appellant's proffered reasons, supporting documentation and other relevant material before him and to determine whether they met the conditions for a waiver.
37 The delegate found that, first, compassionate circumstances had developed, secondly, the appellant had had no control over the circumstances in which his brother found himself but, thirdly, the changes to the brother's circumstances were not "a major change to the [appellant's] circumstances" within the meaning of reg 2.05(4). That finding was itself dispositive of the application for waiver.
38 The appellant argued that if the delegate had failed to address his circumstances as a full-time carer, that would amount to a jurisdictional error affecting the last finding. However, in our opinion, the delegate did consider, and found not to be compelling, the circumstances on which the appellant relied to support his assertion of being needed as a full-time carer. That is because the delegate identified the evidence, to some of which we referred above, including the doctor's letter of 1 July 2015 that dealt with the brother's needs for assistance because of his inability to drive, undertake household chores, and need to attend to business and medical appointments.
39 The delegate also had before him the appellant's tourist visa application that had referred to his five siblings who were in Australia, including his injured brother. Moreover, in his 1 July 2015 letter, the doctor described the brother as a "very good family man". The other medical reports that the appellant included in the waiver application included the doctor's report of 7 December 2015 that described the brother's then current medical conditions in such a way that it was open for the delegate to find that the brother was not totally dependent on the appellant or in need of full-time care.
40 Thus, the delegate had a rational basis to find that he was not satisfied that the appellant was the only person who could assist his brother. He found that the circumstances were not collectively "sufficiently forceful to make a decision to waive the condition" preventing the grant of a new visa.
41 In our opinion, the delegate addressed the reasons and documentation that the appellant had advanced in support of his application, but did not find that these reached the level of being compelling reasons, that is, reasons that forced or drove the delegate irresistibly to be satisfied that condition 8503 should be waived: Plaintiff M64/2015 258 CLR at 187-188 [31].
42 Moreover, the delegate was not persuaded that the appellant's circumstances, as opposed to those of his brother, had undergone a major change as reg 2.05(4)(a)(ii) required. For those reasons, the new ground must be rejected.