What happened
The applicant, referred to as YNQY, was born in what is now South Sudan and arrived in Australia at the age of almost 14 on a Class XB Subclass 202 (Global Special Humanitarian) visa granted on 9 July 2006 as a member of his father's application ([2]-[3]). The visa criteria at the time, set out in cll 202.2 and 202.3 of Sch 2 to the Migration Regulations 1994 (Cth), required the primary applicant to be subject to substantial discrimination amounting to gross violation of human rights and that there be compelling reasons for granting the visa having regard to connections with Australia and the capacity of the Australian community to provide for settlement ([3]).
Between 22 June 2011 and 4 July 2011, when the applicant was 18, he committed a series of violent offences including armed robbery, robbery causing serious injury, criminal damage and attempted robbery as part of a group. The sentencing judge described the conduct as "dangerous, frightening and extremely violent" ([4]). He was convicted on 15 charges on 27 April 2012 and sentenced to five years and ten months' imprisonment. He also committed further offences while on bail ([4]). On 3 July 2015, while serving that sentence on a full-time basis, his visa was mandatorily cancelled under s 501(3A) of the Migration Act 1958 (Cth) because he did not pass the character test by reason of his substantial criminal record ([5]).
The applicant made representations seeking revocation under s 501CA(4). A delegate refused revocation on 16 June 2016. The applicant applied to the Administrative Appeals Tribunal. On 15 May 2017 the Tribunal affirmed the delegate's decision, finding that the seriousness of the offences, expectations of the Australian community and risk of re-offending "greatly outweigh" the positive considerations ([7], [20]).
The applicant commenced judicial review proceedings in the Federal Court. By amended originating application he raised five grounds. Grounds 2 and 4, which concerned failure to consider claims of harm on return to Sudan or South Sudan and relied on the Full Court's decision in BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96, were held over pending the Minister's special leave application to the High Court ([11]-[12]). Special leave was refused after judgment was reserved: Minister for Immigration and Border Protection v BCR16 [2017] HCATrans 240 ([13]). Mortimer J therefore determined the remaining three grounds.
Ground 1 alleged the Tribunal misconstrued its statutory task by failing to treat the best interests of four identified minor children (two younger brothers under 18 and a niece and two nephews under three) as a primary consideration in accordance with cl 13.2(1) of Direction No 65. The Minister conceded there was no determination whether revocation was or was not in the best interests of any of those children and that the Tribunal made no reference to cl 13.2 ([15]-[16]). Ground 3 alleged legal unreasonableness or irrationality in the Tribunal's treatment of the "extent of impediments if removed" under cl 14.5, particularly its discounting of the impediment arising from the applicant's PTSD and the minimal psychiatric support available in Sudan or South Sudan because of his past non-compliance with medication and counselling ([56]). Ground 5 alleged failure to address the expectations of the Australian community under cl 13.3 as a primary consideration ([74]).
Mortimer J upheld grounds 1 and 3, finding jurisdictional error in both respects. She indicated that the usual order would be to set aside the Tribunal decision and remit the matter for rehearing by a differently constituted Tribunal, but because grounds 2 and 4 remained undetermined she directed the parties to confer on appropriate orders and, if necessary, file submissions by 31 January 2018 ([79]-[80]). Costs were reserved.
Why the court decided this way
Mortimer J began by acknowledging the human context: the applicant's arrival from a war-torn region as a young teenager, the tragedy for his family and for victims of his crimes ([1]). She then set out the statutory framework. Section 501CA(4) permitted revocation if the person made representations and the Minister (or Tribunal on review) was satisfied the person passed the character test or there was "another reason" why the original decision should be revoked ([6]). The Tribunal was bound by s 499(2A) to apply Direction No 65 ([9]-[10]).
On ground 1, the judge held that cl 13.2(1) of the Direction imposes an unequivocal positive obligation to "make a determination about whether revocation is, or is not, in the best interests of the child" ([16], [33]-[34]). The phrase "make a determination" requires a positive finding or conclusion one way or the other, which must then be reasoned in the Tribunal's s 430 statement of reasons ([34]). The Tribunal made no such finding for any of the four children, did not refer to cl 13.2 at all in its reasons, and did not address the factors listed in cl 13.2(4) ([16], [44]).
The Minister argued the error was not jurisdictional or, if it was, relief should be refused in discretion because the evidence was scant, the applicant was not the primary carer, there had been minimal contact with the niece and nephews, and the Tribunal's overall finding that the seriousness of the offences, community expectations and risk of re-offending "greatly outweigh" the positive considerations showed the best-interests consideration could not have altered the outcome ([19]-[21]). Mortimer J rejected these submissions.
She held the error was jurisdictional because s 499(2A) makes the obligations in the Direction part of the statutory task under s 501CA(4). Non-compliance with a clear obligation in a valid Direction is therefore a constructive failure to exercise jurisdiction, an essential or inviolable limitation on power within the principle in Plaintiff S157/2002 v Commonwealth [2003] HCA 2; 211 CLR 476 at [76] ([38]-[39]). She noted the trend of authority in this Court supported that characterisation, citing her own earlier analysis in Williams v Minister for Immigration and Border Protection [2014] FCA 674; 226 FCR 112 and subsequent decisions such as Chen v Minister for Immigration and Border Protection [2017] FCA 46 and Uelese v Minister for Immigration and Border Protection [2016] FCA 348; 248 FCR 296 ([35]-[36]). The Minister's authorities on relevant considerations (Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24 and Lu v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 340; 141 FCR 346) were not apt because the error was properly characterised as failure to perform a mandated task, not mere failure to take a relevant consideration into account ([40]).
On materiality and discretion, Mortimer J examined the evidence that the Tribunal would have been required to weigh had it performed the cl 13.2(1) task. That evidence included the family's closeness, the elder sister's statements that she needed the applicant's help with her three young children (one of whom, "M", was born at 24 weeks' gestation, fed by tube, had developmental delays and required four machine feeds daily), the mother's mid-fifties age and her own traumatic history, the applicant's expressed wish to live with his mother and assist with the children, and the practical support the family had already given him by moving regionally to be closer to him in prison ([47]-[52]). She accepted that the evidence did not compel revocation and that the applicant did not appear to have a parental role, but held that a decision-maker performing the required task with an open mind could have viewed the best interests of the children, especially M, as weighing in favour of revocation and potentially outweighing risk of re-offending ([53]-[54]). The applicant was therefore deprived of the possibility of a successful outcome. The low bar for materiality from Stead v State Government Insurance Commission [1986] HCA 54; 161 CLR 141, as applied in Minister for Immigration and Border Protection v WZARH [2015] HCA 40; 256 CLR 326 and House v Defence Force Retirement and Death Benefits Authority [2011] FCAFC 72; 193 FCR 112, was not met for refusal of relief ([40]-[42], [54]-[55]).
On ground 3, Mortimer J held the Tribunal's treatment of cl 14.5 was irrational. The Tribunal accepted the applicant suffered PTSD, that psychiatric support in Sudan or South Sudan was "minimal", yet discounted the impediment because he had "not availed himself completely" of psychological support and medication in prison, had attended fewer sessions than provided in the last five months, and had frequently failed to collect medication resulting in cancelled prescriptions ([60], [80]-[81]). The judge found this reasoning misconstrued the evidence: the infrequent counselling attendance related to the period before imprisonment, not the more recent prison period during which attendance was regular ([67]-[68]). More fundamentally, the Tribunal never examined why the applicant stopped taking medication (he gave evidence that when he ceased it he became isolated and withdrawn, and that he sometimes sought dose increases or different drugs) or why he missed some pre-prison appointments (time-management difficulties) ([61]-[64]). Nor did it consider that involuntary removal to South Sudan without supports would likely increase stress and therefore his need for treatment ([70]).
Applying Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at [130]-[131], Mortimer J held that no rational decision-maker could form a state of satisfaction about the cl 14.5 consideration, and therefore about the existence or non-existence of "another reason" under s 501CA(4)(b)(ii), without undertaking that exploration. The reasoning fell on the wrong side of the line between rational finding and one not supported by evidence or by evidence that rationally could not support it, citing Myoung v Northern Land Council [2006] FCA 1130; 154 FCR 324 at [102] ([72]-[73]). This rendered the Tribunal's state of satisfaction unlawful and the decision affected by jurisdictional error ([73]).
Ground 5 was not upheld. Mortimer J held that even if the Tribunal had not performed the cl 13.3 task, the consideration is inherently adverse to applicants who fail the character test and have committed serious offences; it could not have deprived the applicant of a different outcome ([76]-[77]).
The combination of the two established errors was sufficient to deprive the applicant of the possibility of a successful outcome on review ([78]).
Before and after state of the law
Before this judgment, the legal position was that Ministerial Directions made under s 499 were binding on the Tribunal by force of s 499(2A). Decisions such as Williams v Minister for Immigration and Border Protection [2014] FCA 674; 226 FCR 112 at [22]-[44] had examined the legal character of such Directions and noted that non-compliance with their provisions had been accepted in a number of cases as capable of resulting in jurisdictional error, although the precise metes and bounds of that proposition, and whether a Direction could lawfully impose mandatory obligations on an otherwise unconfined discretion, had not been finally determined ([35]-[39]). The Full Court in Jagroop v Minister for Immigration and Border Protection [2016] FCAFC 48; 241 FCR 461 had emphasised that, despite the prescriptive language, the weighing exercise remains with the individual decision-maker on the evidence in each case ([31]-[32]). Wan v Minister for Immigration and Multicultural Affairs [2001] FCA 568; 107 FCR 133 at [32] had made clear that best interests of children must be identified and treated as a primary consideration, but did not inexorably dictate the outcome ([17]).
The judgment clarified and applied that existing law to the specific obligation in cl 13.2(1) of Direction No 65. It confirmed that the obligation to "make a determination" is a positive one requiring an express conclusion one way or the other, reasoned in the s 430 statement, and that failure to do so is jurisdictional error because the Direction forms part of the statutory task ([34], [38]-[39]). It also confirmed that the materiality test from Stead applies with full force to such errors: relief is not refused unless the Court is satisfied the error could not have made a difference ([40]-[42], [54]).
On the cl 14.5 issue, the judgment applied the irrationality principles from SZMDS to the evaluative exercise required by an "other consideration" in the Direction. It emphasised that a rational evaluation of health impediments requires examination of the applicant's actual attitudes and behaviour toward treatment in Australia so that a reasoned prediction can be made about likely conduct if removed ([66]-[71]).
After the judgment, the legal position is that a Tribunal reviewing a s 501CA(4) revocation decision must expressly determine, for each affected minor child, whether revocation is or is not in that child's best interests and must expose that reasoning. Failure to do so will ordinarily be jurisdictional error and relief will not lightly be refused if the evidence could realistically have led to a different outcome. The same reasoning applies to the rational engagement with evidence when assessing impediments under cl 14.5 (or its successor provisions). The judgment leaves open the larger question whether a s 499 Direction can validly modify the scope of the statutory power itself ([39]), consistent with the reservation expressed in Jagroop at [78] and Williams at [36]-[43].
Key passages with plain-English translation
Paragraph [34]: "The structure of para 13.2 is that para 13.2(1) imposes a positive obligation on decision-makers to make a determination about whether revocation is, or is not, in the best interests of the child. The use of the phrase 'make a determination' is unequivocal. It requires a positive finding or conclusion to be made."
Plain-English translation: The Direction does not let the Tribunal simply mention children and then move on. It must actually decide, yes or no, whether cancelling the visa is in each child's best interests, and it must explain that decision in its written reasons.
Paragraph [39]: "... where there is a valid direction made under s 499 of the Act and s 499(2A) applies, any obligations imposed by that direction as part of the statutory task of the decision-maker are, and are intended by the scheme of the Migration Act by reason of the presence of s 499(2A), to be an essential or inviolable limitation on the power conferred by the relevant provisions of the Migration Act (here, s 501CA(4))."
Plain-English translation: Because Parliament said in s 499(2A) that the Tribunal "must comply" with the Direction, the things the Direction requires the Tribunal to do are not optional extras. They are part of the legal job the Tribunal has to do. Skipping them is the same as failing to do the job Parliament gave it.
Paragraph [54]: "I am not prepared to find that there was no possibility of a different outcome if the Tribunal had performed this task in accordance with its obligations. I consider the applicant was deprived of the possibility of a successful outcome on the revocation decision by reason of the Tribunal's jurisdictional error."
Plain-English translation: Looking at the evidence about the disabled nephew and the family's needs, it is possible that a Tribunal that actually did the required best-interests exercise could have decided the children's interests outweighed the risk of re-offending. Because the applicant lost the chance to have that decision made lawfully, the Court will not withhold relief.
Paragraph [70]: "It was irrational for the Tribunal not to explore these issues before discounting and dismissing the 'impediments' for the applicant in accessing any kind of treatment in South Sudan (whether by way of medication or counselling). It was irrational because any 'impediments' could not be discounted or dismissed without examining how likely it was the applicant might try to access, or wish to access, this treatment."
Plain-English translation: You cannot rationally say "the lack of mental-health services overseas is not a big problem for this man" if you have not first worked out why he sometimes stopped taking his tablets or missed appointments in Australia, and whether he would be even more likely to need help if suddenly sent to a dangerous place with no family.
Paragraph [76]: "In substance this consideration is adverse to any applicant. As the Minister submits, it is inextricably linked to the other primary consideration of protection of the Australian community ... it is a kind of deeming provision by the Minister about how he or she, and the executive government of which he or she is member, wish to articulate community expectations, whether or not there is any objective basis for that belief."
Plain-English translation: The part of the Direction about what "the Australian community expects" is really just the Minister saying that serious offenders should usually lose their visas. It is not an inquiry into what ordinary Australians actually think; it is a built-in factor that almost always counts against the person.
What fact patterns trigger this precedent
This precedent is triggered whenever a decision-maker exercising the revocation power in s 501CA(4) is bound by Direction No 65 (or any successor containing materially identical clauses) and there is any evidence or submission concerning minor children (defined in Annex B as persons under 18) who would be affected by a decision not to revoke. The obligation in cl 13.2(1) applies regardless of whether the non-citizen has a parental relationship with the child; it is enough that the child is a minor affected by the decision ([33]). The obligation is engaged even if the evidence is "scant" or not emphasised by the applicant or representative ([43]).
The cl 14.5 irrationality aspect is triggered whenever the evidence raises a question about the non-citizen's health, particularly mental health or need for medication or counselling, and there is material suggesting that treatment in the home country is limited or non-existent. In those circumstances the decision-maker must rationally engage with the applicant's past behaviour toward treatment, the reasons for any non-compliance, distinctions between different periods (for example pre- and post-imprisonment), and the likely effect of the additional stressors of removal ([66]-[71]).
The judgment applies only to revocation decisions under Part C of the Direction; analogous but not identical obligations appear in Parts A and B for cancellation and refusal decisions. It does not apply to decisions made before Direction No 65 or under materially different earlier Directions, although the underlying principle that breach of a binding Direction can be jurisdictional error remains relevant ([35]).
Because the two BCR16 grounds were not determined, the judgment does not itself trigger precedent on the interaction between non-refoulement obligations and the "another reason" test, but the holding over of those grounds and the subsequent refusal of special leave are noted as enabling finalisation of the proceeding ([13], [79]).
How later courts have treated it
The judgment itself treats earlier authorities as establishing that non-compliance with a clear obligation in a s 499 Direction is capable of being jurisdictional error. It applies the Full Court's reasoning in Wan at [32] as stating the correct approach to best interests ([17]), cites Jagroop for the proposition that the weighing exercise remains with the individual decision-maker ([31]-[32]), and applies the materiality principles from Stead, WZARH and House to the exercise of discretion to refuse relief ([40]-[42]). It distinguishes Paerau v Minister for Immigration and Border Protection [2014] FCAFC 28; 219 FCR 504 on the basis that the present case was not affected by the evidentiary limitations in s 500(6H) ([38]).
The judgment treats the community expectations provision in cl 13.3 as a deeming mechanism rather than an empirical inquiry, citing Uelese v Minister for Immigration and Border Protection [2016] FCA 348; 248 FCR 296 at [64]-[66] for the proposition that the consideration is inherently adverse to revocation ([76]-[77]).
It applies SZMDS at [130]-[131] to characterise the cl 14.5 reasoning as irrational because it was not a conclusion open to a rational decision-maker on the evidence before it ([65], [71]).
Because the judgment is a single-judge decision of the Federal Court delivered in December 2017, it does not itself contain any discussion of its own subsequent treatment by later courts. The text grounds all analysis in the citations and reasoning set out above; no later decisions are referred to.
Still-open questions
The judgment expressly leaves open the "larger question of whether a s 499 Direction can achieve this result in relation to a wide statutory discretion" ([39]), repeating the reservation in Williams at [36]-[43] and noting the discussion in Bochenski v Minister for Immigration and Border Protection [2017] FCAFC 68 at [77] and Jagroop at [78]. That issue remains undetermined on the face of the reasons.
The judgment does not decide whether the best-interests obligation extends to children in respect of whom there is no evidence at all, or only to those in respect of whom some material is before the decision-maker. It notes there was "some material" concerning the four children but does not explore the outer limits of the obligation ([38]).
Although the judge found the error material on the particular evidence, she does not lay down a bright-line rule for when evidence will be insufficient to engage the materiality analysis. The reasons emphasise that even "scant" references and general statements of family closeness were enough to prevent the Court from being satisfied that the error could have made no difference ([43], [54]).
The interaction between the cl 13.2 obligation and the weight to be given to other primary considerations (protection of the community and expectations of the community) is left to the individual decision-maker on the evidence, consistent with cll 8(4) and 8(5) and Jagroop, but the precise circumstances in which best interests can outweigh protection of the community are not exhaustively stated ([30], [53]).
Finally, because grounds 2 and 4 were not determined, the judgment leaves open the correctness of the Full Court's approach in BCR16 to the interaction between non-refoulement claims and the "another reason" test under s 501CA(4), although the refusal of special leave is noted as removing the reason for further deferral ([13], [79]).