SYDNEY, July 8 -- The Federal Court of Australia issued the following judgment:
Review of
Ross and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2023] AATA 2103
File number(s):
QUD 383 of 2023
Judgment of:
MEAGHER J
Date of judgment:
8 July 2024
Catchwords:
MIGRATION - Application for judicial review of a decision of the Administrative Appeals Tribunal to affirm decision of delegate to mandatorily cancel applicant's visa - Whether the Tribunal misunderstood or misapplied a mandatory relevant consideration - Whether a claim clearly emerged from the material regarding the effect of cancellation of the applicant's visa on Australian business interests - Whether the Tribunal omitted to consider evidence relevant to the business interests consideration - Application allowed
Legislation:
Migration Act 1958 (Cth) ss 499, 501, 501(3A), 501(7), 501CA, 501CA(3), 501CA(4))
Cases cited:
Arachchi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1311
AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503; [2018] FCAFC 89
Hicks v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 757
Ibrahim v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 300 FCR 67; [2023] FCAFC 173
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12
Manebona v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 116
MIBP v Aulekh (2018) 265 FCR 143; [2018] 265 FCR 143
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506; [2021] HCA 17
Singh v Minister for Home Affairs [2019] FCA 905
Tonga v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 117
Division:
General Division
Registry:
Queensland
National Practice Area:
Administrative and Constitutional Law and Human Rights
Number of paragraphs:
48
Date of hearing:
14 December 2023
Counsel for the Applicant:
Mr C Fitzgerald and Mr N Petrie
Solicitor for the Applicant:
Zarifi Lawyers
Counsel for the Applicant:
Mr McGlade and Ms Tattersall
Solicitor for the Respondents:
Sparke Helmore
ORDERS
QUD 383 of 2023
BETWEEN:
JAMES EDWIN ROSS
Applicant
AND:
MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
MEAGHER J
DATE OF ORDER:
8 JULY 2024
THE COURT ORDERS THAT:
1.A writ of certiorari issue quashing the decision of the second respondent made on 19 July 2023 which affirmed the decision of a delegate of the first respondent not to revoke, pursuant to s 501CA(4) of the Migration Act 1958 (Cth), cancellation of the applicant's Class TY Subclass 444 Special Category (Temporary) visa (Decision).
2.A writ of mandamus issue directing the second respondent to re-determine the applicant's application for the review of the Decision according to law.
3.The first respondent pay the applicant's costs as agreed or assessed.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
MEAGHER J
INTRODUCTION
1The applicant is a 45-year-old citizen of New Zealand. He first arrived in Australia in 2003 and was the holder of a Class TY Subclass 444 Special Category (Temporary) visa.
2On 20 April 2022, the applicant was convicted of "Contravention of Domestic Violence Order" and sentenced to a term of imprisonment of 12 months. Subsequently, on 19 August 2022, the applicant's visa was cancelled by a delegate of the Minister pursuant to s 501(3A) of the Migration Act 1958 (Cth) (Cancellation Decision) for failing to pass the character test by reason of having a substantial criminal record.
3The applicant made representations to the Minister seeking revocation of the Cancellation Decision pursuant to s 501CA(4) of the Act, and on 24 April 2023, a delegate of the Minister decided not to revoke the Cancellation Decision (Non-Revocation Decision). The applicant sought review of the Non-Revocation Decision by the Administrative Appeals Tribunal. On 19 July 2023, the Tribunal affirmed the Non-Revocation Decision (Tribunal's Decision or TD).
4The applicant now seeks review of the Tribunal's Decision on the following grounds:
1.The Tribunal fell into jurisdictional error by:
a)failing to take into account a mandatory relevant consideration;
b)misunderstanding or misapplying a mandatory relevant consideration; or
c)alternatively, failing to consider clearly articulated and significant representations made by the Applicant in support of "another reason" to revoke the earlier decision to cancel his visa,
in making its Decision.
Particulars
(A) In determining the Applicant's application for review, the Tribunal was mandatorily required to have regard to Ministerial Direction 99 - Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (MD99).
(B) By paragraph 9.4 of MD99, the Tribunal was required to "consider any impact on Australian business interests if the [Applicant was] not allowed to.remain in Australia." (Business Interests Consideration).
(C) The Business Interest Consideration is not limited to impacts on a "major project" or "important service": Singh v Minister for Home Affairs [2019] FCA 905; Arachchi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1311; Tonga v Minister for Immigration, Citizenship and Migrant Affairs [2023] FCA 1179.
(D) The Applicant was self-represented before the Tribunal. In support of his application to the Tribunal, the Applicant made representations to the effect that he had significant experience in the construction industry, including in scaffolding, that he intended on continuing to work as a scaffolder if his visa was returned, and that he had received a job offer from his former employer.
(E) The Applicant's former employer gave evidence in support of the Applicant's case. In that evidence, he confirmed that inter alia, an offer of employment had been made to the Applicant, that his business was in "desperat[e].need of qualified ticketed scaffolders" and that the Applicant was "qualified to do.advanced ticketed scaffold" which his business was "need[ed]" by his business": see the Tribunal's reasons, [65]-[71].
(F) The Minister submitted in his statement of facts, issues and contentions that "there is.nothing on the material to suggest, that a non-revocation decision would significantly compromise the delivery of a major project or important service in Australia. This other consideration is therefore irrelevant in this case" (emphasis added): CB 1005, at [66].
(G) In making its decision, and in assessing the Business Interests Consideration, the Tribunal found that "[t]he Respondent contends this consideration is not relevant. I agree" (emphasis added). The Tribunal allocated "allocated neutral weight" to it as a result: [178].
(H) The Tribunal's decision was affected by error as in Singh, Arachchi, and Tonga.
(I) That error was material.
2.The Tribunal fell into jurisdictional error by:
a)misunderstanding or misapplying a mandatory relevant consideration;
b)made a finding of importance that was not supported by the evidence; or
c)alternatively, making an illogical or irrational finding,
in making its Decision.
Particulars
(A) The Applicant refers to and repeats paragraph (A) of the particulars to Ground 1.
(B) By paragraph 8.1.2(2)(b) of MD99, and in considering the risk to the Australian community, the Tribunal was required to consider inter alia "the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account" (i) "information and evidence on the risk of the non-citizen re-offending" and (ii) "evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the most recent offence" ("Risk of Recidivism Consideration") (emphasis added).
(C) The Tribunal found that inter alia (1) "the Applicant's evidence has little or nothing to contribute to an assessment of his current recidivist risk", particularly as it was "postulated into the future": [72]; and (2) the "clinical evidence before the Tribunal" concerned matters "postulated into the future and cannot assist this Tribunal to assess the Applicant's current level of recidivist risk": [72]). The Tribunal also considered evidence of findings and observations from previous judicial sentencing orders, and evidence of prospective family support and employment.
(D) At [72] (final bullet point) the Tribunal found that "what really matters is not what lay and expert witnesses might say about what the Applicant might do if returned to the community" as "[a]ll of those observations are postulated into the future". The Tribunal added that in the absence of evidence from a "qualified clinician with a longitudinal comprehension of the Applicant's psychological history who has put in place a demonstrated plan of remedial treatment and control for him" ("Hypothetical Psychologist"), the Tribunal could not "safely accept that things are different."
(E) The Tribunal ultimately concluded that the risk was "more reliably described as an unresolved risk," and "consequently unknown," "due to the dearth of clinical opinion and the stark reality of two previous relapses that had very serious consequences": [73]-[74].
(F) Despite finding that the Applicant "represents an unresolved and otherwise unknown level of recidivist risk," the Tribunal nevertheless concluded that the only "safe conclusion" was that the Applicant's "recidivist risk is now no different to what it was at the time of his most recent removal from the Australian community": [74] (see also [75(c)]).
(G) That analysis, in light of the Tribunal's findings concerning the historic nature and seriousness of harm and its prospective seriousness were it to be repeated, led the Tribunal to conclude that "Primary Consideration 1 confers a heavy level of weight against revocation.": [77].
(H) The Tribunal's findings reveal that it erred in the following ways:
(1) it misunderstood the Risk of Recidivism Consideration as not being forward-looking or, alternatively that evidence which went to prospective risk not from the Hypothetical Psychologist was not relevant to its task;
(2) its finding referred to at paragraph (F) above, that the Applicant's recidivist risk is now no different to what it was at the time of his most recent removal from the Australian community," was not supported by an evidentiary basis; and/or
(3) its findings referred to above were illogical or irrational, in circumstances where (a) the Tribunal had concluded that the Applicant's risk of recidivism was "unknown," but (b) nevertheless concluded that his risk was no different to what it was at the time of his most recent removal from the Australian community following his conviction and sentence.
(Emphasis in original)
5For present purposes, the first ground will be referred to as the business interests consideration ground and the second ground as the recidivism risk ground.
6Counsel for the applicant read the amended application filed on 6 November 2023, the affidavit of Ziaullah Zarifi filed on 6 November 2023, which annexed the transcript of the Tribunal hearing, the two outlines of submissions before the Court, the court book and the joint bundle of authorities. He formally tendered the Court Book and the affidavit of Ziaullah Zarifi.
7For the reasons that follow, the application is allowed on the basis of the business interests consideration ground. Accordingly, and because it is in the interests of justice to make a decision as soon as the Court is in a position to do so, I do not consider it necessary to traverse the recidivism risk ground.
LEGISLATIVE FRAMEWORK
8According to s 501(3A) of the Act, the Minister must cancel a visa if he is satisfied that, inter alia, the visa holder does not pass the character test due to having a substantial criminal record and is serving a full-time custodial sentence. Pursuant to s 501(7), a person is considered to have a substantial criminal record if, inter alia, the person has been sentenced to a term of imprisonment of 12 months or more.
9The Minister may, pursuant to s 501CA(4) of the Act, revoke a mandatory visa cancellation if the person subject to the mandatory visa cancellation makes representations, and the Minister is satisfied that either the person passes the character test, or there is another reason why the mandatory visa cancellation should be revoked.
10In considering whether there is another reason why a mandatory visa cancellation should be revoked, Direction No. 99 - Migration Act 1958 - Direction under section 499 Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction 99 or the Direction) commenced on 3 March 2023 pursuant to s 499 of the Act to guide decision-makers in performing functions under ss 501 and 501CA of the Act. The Direction provides five "Primary Considerations" and four "Other Considerations" which are to be taken into account when making a decision under s 501CA(4) of the Act.
11The Primary Considerations include:
1.Protection of the Australian community from criminal or other serious conduct (Primary Consideration 1);
2.Whether the conduct engaged in constituted family violence (Primary Consideration 2);
3.The strength, nature and duration of ties in Australia (Primary Consideration 3)
4.The best interests of minor children in Australia (Primary Consideration 4); and
5.Expectations of the Australian community (Primary Consideration 5).
12The Other Considerations include:
1.Legal consequences of decision (Other Consideration 1);
2.Extent of impediments if removed (Other Consideration 2);
3.Impact on victims (Other Consideration 3); and
4.Impact on Australian business interests (Other Consideration 4).
TRIBUNAL'S DECISION
13The hearing before the Tribunal was held on 29 and 30 June 2023 and the decision was handed down on 19 July 2023.
14The applicant appeared at the Tribunal as a litigant in person.
15In this matter, the manner in which the hearing before the Tribunal unfolded and the structure of its reasons are relevant.
16Ultimately, the findings with respect to each of the considerations were as follows:
The Tribunal found that Primary Consideration 1 weighed heavily against revocation of the visa cancellation: TD[76]-[77].
In regard to Primary Consideration 2, the Tribunal considered that it weighed heavily against revocation of the visa cancellation, finding that the applicant engaged in frequent and very serious acts of family violence: TD[109]-[110].
As for Primary Consideration 3, the Tribunal accorded on the totality of the evidence that it attributed moderate weight in favour of revoking the mandatory cancellation of the applicant's visa: TD[129].
Primary Consideration 4 was weighted moderately in favour of the visa cancellation: TD[155]. The Tribunal found that due to the applicant's illicit drug use there have been long periods of absence and/or limited contact between him and his biological children: TD[138]. Further, the Tribunal found that domestic violence offences that had occurred in the presence of the children would be likely to have adversely affected them: TD[141] - [142].
The Tribunal considered that, due to his offending, the expectations of the Australian community would be that the cancellation of the applicant's visa would not be revoked, although the length of time spent by the applicant in Australia (nearly half his life) would lead to the community's tolerance being higher: TD[158], [164] - [165]. Therefore, it concluded that Primary Consideration 5 weighed heavily against revocation of the cancellation of the visa: TD[169].
Neutral weight was attributed to Other Consideration 1 and Other Consideration 3 as they were not relevant to the Tribunal's consideration: TD[170], [177].
The Tribunal considered that Other Consideration 2 weighed moderately in favour of revocation of the visa cancellation, noting that the applicant would likely be able to obtain access to health care and find similar employment in New Zealand: TD[175] - [176].
With respect to Other Consideration 4, the Tribunal's view was that this Consideration was not relevant and thus allocated it neutral weight: TD[178].
17Overall, the Tribunal concluded that "holistic applications of the considerations .. [m]ilitates in favour of this Tribunal finding that there is not another reason to revoke the mandatory cancellation of the applicant's visa.": TD[183].
18Much of the evidence relevant to the business interests consideration ground was considered in the context of Primary Consideration 1 and all of the evidence with respect to the recidivism risk ground arose in relation to that consideration.
19The evidence before the Tribunal included details of the applicant's employment history contained in a personal circumstances form provided to the Minister when requesting revocation of the visa cancellation. It detailed 18 years of experience as a "Lead Hand Scaffolder" and provided details of the applicant's employer. The material before the Tribunal also included a letter of employment verification which was set out within the Tribunal's reasons, the relevant part of which is extracted below at paragraph 20.
20At the hearing, with respect to Primary Consideration 1, the applicant adduced evidence traversing a range of factors he submitted were relevant to his future risk to the community, including as to his possible future employment. The Tribunal's reasons set out in some detail what transpired in that regard at TD[63] - [71]:
Availability of employment: the evidence of Mr Raph U: Mr Raph U is the owner/proprietor of the business trading under the firm name or style of [company name redacted]. Mr U's undated 'letter of employment verification' appears in the material and was prepared according to the Applicant '.last year sometime..' It is worth recording the terms of Mr U's letter in full:
'To Whom It May Concern,
I confirm that James Ross has been previously employed by my company, [company name redacted] , on and off from September 2003 - August 2022.
He was employed as leading hand scaffold worker on a casual basis. He turned up to work on time and completed the work required well.
Please contact me if you require any further details.'
I was interested in exploring the specific nature and extent of the Applicant's qualifications and work experience in the scaffolding field. At the conclusion of the first day of the Hearing, I urged the Applicant to try and make contact with Mr U overnight and to see if he could give oral evidence at the Hearing. It transpired that Mr U was abroad on annual leave but that he nevertheless took time out from his overseas holiday to assist the Tribunal with the provision of his oral evidence.
Mr U confirmed the content of the abovementioned 'letter of employment verification.' Mr U confirmed that his abovementioned letter of verification was evidence of the fact that his business had intermittently employed the Applicant for a period of 19 years from September 2003 until August 2022. He confirmed that the intermittent nature of the employment was not due to any dilatoriness on the part of the Applicant but was due to his business not having enough work to employ him all of the time. He said trading conditions for his business had changed and that presently his business had a lot of work on. I asked him whether the Applicant would be immediately able to secure work with his business:
'SENIOR MEMBER: So, one thing that I wanted to know about, which I don't see in your statement but I can ask you about it, is, if this tribunal gives him his visa back, is it the case that your business will be able to offer him employment?
MR U: Yes. I will be able to offer him employment, if and when I do have work. Yes.
SENIOR MEMBER: Okay. So, you'll be able to offer him employment if and when you do have work. All right?
MR U: Yes.
SENIOR MEMBER: Let's say that he gets his visa back by 19 July 2023. So that's in a couple of weeks, just over a couple of weeks from now. Actually, nearly three weeks?
MR U: Yes.
SENIOR MEMBER: Say in three weeks the tribunal gives him his visa back. That's just before the end of July. Will he be able to at least have some work to do with your business there, or would he be waiting for months until work was available for him?
MR U: No, I'll be able to give him work, because, at this moment in time, I am desperately in need of qualified, ticketed scaffolders, because you can't - we can't find them in Gold Coast and Brisbane at this moment in time. We got no qualified scaffolders available. My - yes, I can use it.
SENIOR MEMBER: Right now, you could use him Would that he fulltime or close to fulltime?
MR U: Close to fulltime I can use him, yes.'
Mr U explained the various levels of qualifications available to people working in the scaffolding field. He explained there were three levels: basic - which allows the holder of that qualification to build a scaffold of up to four meters in heigh; then there is intermediate level and advanced level. Mr U explained that the Applicant '.has been qualified to do like advanced ticketed scaffold - .which we need at this moment. In Australia, we're desperate for scaffolders - qualified scaffolders.' He confirmed that he would engage the Applicant to do both intermediate and advanced scaffolding work, meaning the Applicant could build a scaffold of greater than four meters in height.
I took Mr U to the quality of the Applicant's scaffolding work, and he responded thus:
'SENIOR MEMBER: In terms of your work history with Mr Ross, what can you tell us about the quality of his work and his attitude on the job?
MR U: Well, he has been - in fact, I - I've virtually used him as a supervisor. He started as a labourer.
SENIOR MEMBER: Yes?
MR U: And I virtually taught him as a labourer, and I gave him a lot of hints and taught him how to scaffold, and he even went as high as being supervisor, supervising my jobs as well. So yes, he's - yes, I'd employ him any day, I think, you know.'
Mr U confirmed that he employs up to 20 scaffolders at any one time and that his business is contracted to do work at job sites in South-East Queensland - primarily Gold Coast, Brisbane and the Sunshine Coast, but that his business does work 'Down as far as Coffs Harbour as well.' He confirmed that he had been operating his business for about 20 years.
I sought to explain to Mr U the domestic violence-type offences committed by the Applicant and that the Applicant had compiled a record of some 40 convictions in this country. I asked him whether he knew anything of the Applicant's domestic violence offending history and he responded this: 'No, no. Not at all.' He confirmed that the Applicant had never brought his personal issues to the workplace and had never conducted himself in an aggressive or violent way on any of his job sites.
I also sought to explain the Applicant's difficulties with illicit drug abuse primarily with marijuana and methamphetamine. I asked him 'Were you aware that he's had a long history of that [drug] trouble?' to which he responded, 'No. wasn't aware.' He was also not aware that the Applicant had used these types of illicit drugs as recently as 2022. Mr U's position with regard to his workers either using or being found to have used illicit drugs while on his worksites was put in these terms:
'SENIOR MEMBER: It's very specialised work. You're responsible for the safety of not just your own workers, but other trades that come on job sites. How do you now feel about giving employment to someone like Mr Ross, knowing that he has had and is not necessarily continuing to have but that he's in the process of sorting out his difficulties with drugs and alcohol? How do you now feel about employing him? Would you still put him on a job site next Monday?
MR U: Well, I'll still put him on job site, yes. But my company policy is no alcohol, no drugs.
SENIOR MEMBER: All right?
MR U: And he's aware of that, and that's any construction site. That's on any construction site. So, if he breaks that policy or breaks that rule, he will be, yes, terminated. He - his contract becomes terminated.
SENIOR MEMBER: Okay?
MR U: I'll sack him on the spot.'
Finally, Mr U confirmed that the Applicant was a capable scaffolding tradesman and that he would willingly employ him if the Applicant were returned to the community:
'SENIOR MEMBER: Yes. So, I take it from your evidence that, in a trade sense, right, you really think he knows what he's doing. As a tradesman, you think he knows what he's doing?
MR U: Yes. He knows very well what he's doing, but on the basis that he knows full well that he can't have alcohol or drugs on site. That is the ruling on any construction site. That's in Australia it's a - I'm sure it is standard ruling.'
(Emphasis in original, citations omitted)
21Also, in relation to the risk of recidivism, the Tribunal set out other written and oral evidence provided by the applicant at TD[47]-[48], including that:
the applicant intended to see his doctor for medication and see a counsellor for mental health and anger management;
he will attend meetings to address substance abuse issues;
he has attended reintegration classes at the detention centre;
he is "mentally, emotionally and physically stronger to become the best version of [himself]";
he is better equipped to handle "situations";
he had difficulties with illicit drugs and alcohol, and abuse of substances in the past arose when he experienced problems or difficulties in his life;
his substance abuse problems arose from when he experienced "insurmountable" stressors in his life, and from negative peers who were involved in illicit drug use;
he had not yet received psychological counselling in relation to his substance abuse;
the only extent to which he can demonstrate abstinence has occurred in the confines of imprisonment and detention; and
there are two instances where, upon release from prison, the applicant relapsed into substance abuse.
22As well, the Tribunal noted courses completed by the applicant and various documents or reports provided by clinicians, as well as observations by sentencing judges and evidence from his family: TD[49]-[62]. The Tribunal found that while the applicant has been involved in a number of courses, he has not engaged with a clinician regularly about his substance abuse and there is little that the applicant's evidence can contribute to assessing his current recidivist risk: TD[72]. The Tribunal similarly considered that the clinical evidence before it provided little assistance in assessing the applicant's risk of recidivism: TD[72]. The Tribunal noted that a sentencing judge urged the applicant to seek psychological intervention. It also recorded that the evidence from the applicant's mother, that he will reside with her, is of little assistance in circumstances where this has not previously prevented him from offending: TD[72]. Further, the Tribunal considered that the evidence from the applicant's sister, that she would provide support and mentoring to the applicant, is dependent upon whether he would actually turn to her as a source of moral guidance: TD[72].
23The Tribunal accepted that the evidence from the applicant's employer assists in demonstrating a potential to return to the community as a "law-abiding non-citizen with a capacity to immediately secure employment and financial security": TD[72]. The Tribunal considered that notwithstanding the evidence which postulates as to future conduct, the past conduct of the applicant demonstrates a trend of relapsing in the use of illicit substances: TD[72].
24The Tribunal came to the following conclusions in relation to the applicant's risk of recidivism at TD[73]-[74]:
The Respondent contends '.that there remains an unacceptable risk that the Applicant will re-offend..' The reason that this submission gives me reason to pause is that whether or not a person's recidivist risk is unacceptable is a finding that can only be safely made if one knows (or can benchmark) the level of that risk. Here, I think assessment of the Applicant's recidivist risk can be more reliably described as an unresolved risk due to the dearth of clinical opinion and the stark reality of two previous relapses that had very serious consequences. His level of recidivist risk must necessarily be found to be unresolved and consequently unknown because he is only at the start of his rehabilitative journey. Could the unresolved and unknown nature of the Applicant's recidivist risk now be found to be unacceptable to the Australian community - in terms of this Applicant's return to that community? I think the answer to that question must - on the state of the evidence - be 'yes.'
I accordingly find that the Applicant represents an unresolved and otherwise unknown level of recidivist risk. The only safe conclusion is that his level of recidivist risk is now no different to what it was at the time of his most recent removal from the Australian community back into which he now seeks re-admission.
(Emphasis in original)
25The Tribunal's reasons also contained the following observations as to the applicant's employment, in the section in which it considered Primary Consideration 3 at T[127]:
.As mentioned above, the Applicant has spent nearly over half his life in Australia. The important fact arising from his time in Australia is that while he has stayed out of trouble with the law, his qualifications as a scaffolder have meant that he has, when he has worked as a scaffolder, made him a productive member of the Australian community. In this regard, the evidence of Mr Raph U has been particularly instructive. It points to an Applicant who is very good at his work when he is actually doing it. It also points to the Applicant having an immediate potential to return to the Australian community and resume his positive contribution to it via his remunerative work. I am satisfied that while the Applicant has applied himself to his work, he has positively contributed to the Australian community and that this specific sub-paragraph 8.3(4)(a)(ii) of the Directions speaks favourably to the strength, nature and duration of his ties to this country.
26It is also necessary to set out a passage from the transcript of the Tribunal hearing, during which the Tribunal member discussed the approach to Other Consideration 4 with the Minister's representative, as follows:
SENIOR MEMBER: All right. That s okay, I understand that. Just bear with me. And just finally, other consideration D, although as Mr Underwood said, he's scaffolding work is of a high level and a highly qualified level, him not being in Australia doesn't really engage other consideration D because it doesn't really amount to the delivery of an important project, or a special project, or a specific service, whatever it is in Australia, even though we've got that case of Justice Rangiah about the two pizza shop proprietors.
MS ALLEN: Yes, that would be my submission. If the applicant wishes to say whether it would impact Australian business interests then that's up to him, but my submission will be that it's not sufficient to engage that consideration.
SENIOR MEMBER: Okay.
MS ALLEN: And it hasn't been previously.
27This exchange took place immediately before the Minister's closing submissions which in turn immediately preceded the closing submissions of the applicant. The Minister's closing submissions made no reference to Other Consideration 4, in contrast to a number of the considerations to which the representative specifically did refer.
28For his part, the applicant had difficulty making closing submissions stating "I'm having a bit of a mind-blank. I don't really -- -." The Tribunal, in endeavouring to afford the applicant procedural fairness, sought to assist him by working through the Minister's closing submissions and seeking the applicant's responses thereto. The applicant made no submissions regarding whether there would be any impact upon Australian business interests despite the Minister's invitation for him to do so as referred to in paragraph 26 above. Nor was his attention drawn to Other Consideration 4 during the assistance proffered by the Tribunal.
29In the Tribunal's reasons, in relation to Other Consideration 4, it made the following finding at TD[178]:
Paragraph 9.4(1) compels an assessment of the impact on Australian business interests as a consequence of the Applicant's removal. This is not an issue propounded by either party. The Respondent contends this consideration is not relevant. I agree and allocate neutral weight to this Other Consideration (d).
CONSIDERATION
Business interests consideration ground
30By his first ground of appeal, the applicant contended that the Tribunal misunderstood its task with respect to Other Consideration 4. The applicant submitted that there was evidence before the Tribunal from which it clearly arose that there would be an impact before the business conducted by the applicant's erstwhile employer as he had a pressing need for people with the applicant's skills as a scaffolder. Thus, the applicant contended, the Tribunal misunderstood its task in relation to Other Consideration 4, or erroneously concluded that there was no evidence before it that any Australian business interest would be impacted by his removal or erroneously concluded that it was not required to consider Other Consideration 4 as it was not "an issue propounded by either party".
31Paragraph 9.4(1) of the Direction provides the following guidance in relation to Other Consideration 4:
Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
32There is a line of cases relevant to this argument, which were relied upon by the applicant. First handed down was the decision in Singh v Minister for Home Affairs [2019] FCA 905, in which Middleton J considered how the Tribunal ought to consider impacts on Australian business interests. In that matter, the Tribunal found that the applicant's employment links had no application and could not weigh in the applicant's favour at all, as the consideration only applies where the applicant's visa cancellation would significantly compromise the delivery of a major project or important service in Australia: Singh at [9]. The Court held that the correct interpretation of Australian business interests required the Tribunal "not to focus only on the delivery of a major project or delivery of an important service in Australia", but "on the impact on Australian business interest": Singh at [10]. What emerges from Singh is that the consideration is not confined to impacts on major projects or important services but is concerned with the impact on Australian business interests if the applicant is not allowed to enter or remain in Australia.
33Singh was applied in Arachchi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1311 at [63]-[71] (Rangiah J) where the applicant argued that the Tribunal misunderstood its consideration of impacts on Australian business interests by failing to consider the applicant's co-ownership of a small business and the impact on that business and the co-owner if his visa remained cancelled: Arachchi at [53]. Before the Tribunal was evidence from the applicant that if he were removed, his business partner may suffer loss of employment or struggle to continue running the business: Arachchi at [55]-[58]. The Tribunal concluded that the impact on the applicant's business was not the sort of impact contemplated by the relevant direction at the time: Arachchi at [61]. The Court found that the Tribunal misunderstood its consideration of the impact on Australian business interests as being confined to major projects or important services: Arachchi at [67].
34Most recently, Tonga v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1179 was handed down. In that case, the applicant's visa was similarly mandatorily cancelled pursuant to s 501(3A) of the Act: Tonga at [1]. There was evidence before the Tribunal that the applicant could be employed at a mine in the Northern Territory where there was a major shortage of staff with relevant experience. The applicant possessed that experience: Tonga at [22]-[26]. The applicant, who was legally represented, made no submission either orally or in writing that raised the issue of Australian business interests: Tonga at [32]. In its decision, the Tribunal concluded that there was no evidence that the applicant's deportation would impact on Australian business interests in the manner contemplated by the direction relevant at the time: Tonga at [21]. The Court found that despite it not being raised by the applicant, the claim clearly emerged from the materials. In that regard, the Court observed at [32]:
The Minister is correct to observe that the issue of Australian business interests was not raised by Mr Tonga, who was legally represented, in either his Statement of Facts, Issues and Contentions, or in closing submissions before the Tribunal. Nevertheless, as has already been observed, there was oral and written evidence before the Tribunal to which the Tribunal referred. Cade, whose evidence was the most significant to this issue, was one of only four witnesses called on the second day of the hearing. It was not evidence that was simply buried in a tender bundle. The circumstances of this case are not in the category of cases, to which the Minister referred, where an inference might be drawn that an omission of a particular issue from the Tribunal's deliberations can be readily understood in light of the "continuum" of the review: Knight v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2022] FCAFC 127 at [53] ; GXXS v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2022] FCA 468 at [33] -[35] . Rather, this was a claim that clearly emerged from the materials, to a limited extent on the written materials, but more prominently in the course of the oral hearing: AYY17 v Minister for Immigration & Border Protection [2018] FCAFC 89; 261 FCR 503 at [18].
35In Tonga, the Court found that the Tribunal misconstrued its consideration of Australian business interests and therefore omitted to consider the evidence before it that was relevant to the consideration: at [32], [35].
36The applicant submitted that the error made by the Tribunal in Tonga is very similar to that which was made in his case. To that end, the applicant submitted that Tonga stood for the proposition that the Tribunal was required to essentially engage in a two-step process, first to consider whether there would be any impact on an Australian business interest were the applicant not to remain in Australia, and secondly what weight ought to be attributed to that impact.
37The applicant submitted that the evidence before the Tribunal, and most significantly the oral evidence of his former employer, enlivened consideration of any impacts on Australian business interests. The applicant submitted therefore that the Tribunal's finding that Other Consideration 4 is not relevant is an error as there was clearly evidence before the Tribunal that a business interest would be impacted, and the claim clearly emerged from the material before the Tribunal.
38The Minister acknowledged that the part of the transcript relied upon by the applicant referred to above in paragraph 26 "was not as precise as it could have been," however contended that no error resulted for a number of reasons which may be summarised as follows:
Comments made by a Tribunal during the hearing have little import in ascertaining its disposition towards the outcome: MIBP v Aulakh (2018) 265 FCR 143; [2018] 265 FCR 143 at [157].
As the Tribunal referred to Arachchi, at least by inference, it had that decision on its mind, and therefore anything it said in relation to Other Consideration 4 must be construed in that light and not literally.
The Tribunal's finding that Other Consideration 4 was "not relevant" is best interpreted as linking to the concept of relevance as articulated in the Direction, when one reads the decision without an eye attuned to the perception of error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272. Clause 6 of the Direction states that the considerations in the Direction only apply "where relevant to the decision", which "is a matter of opinion for the individual decision-maker": Manebona v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 116 at [95].
That the Tribunal, by its comments, was therefore expressing its view that, on the facts before it, the guidance provided in Clause 9.4, regarding the weight to be attributed, was not engaged.
The evidence from the applicant's former employer rose no higher than saying "at the moment" there was a need for a qualified scaffolder and that he couldn't find one, and that the lack of evidence made it inherently difficult to conclude that there would be any impact on the business.
That the Tribunal's conclusion at TD[178] may be seen as first a comment that neither party propounded the consideration and separately that it was not relevant.
That as the Tribunal made no mention of the weight aspect of Other Consideration 4, it can therefore be inferred that the Tribunal viewed its task as considering "any" adverse business impacts as opposed to only those that would significantly impact major projects or delivery of services.
39The Minister further contended that Tonga is plainly wrong, but that the Court need not go that far as no error arises.
40Finally, the Minister submitted, even if the Court were to find that there was an error, such error is not material.
41The Minister referred to the case of Ibrahim v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 300 FCR 67; [2023] FCAFC 173, which was handed down after Tonga. In Ibrahim, the Full Court considered when a claim can be said to clearly emerge from the material, where in that case a contention was made that a claim clearly arose from the findings or material before the Tribunal, but no submission was made by which the claim was clearly articulated. The Full Court considered whether an obligation arises under s 501CA(4) for a decision-maker to consider claims which clearly emerge from the material, but which have not been clearly articulated. After considering the relevant cases, the Full Court found that an obligation to consider a matter only arises in relation to a decision maker under s 501CA(4) in circumstances where the matter is clearly articulated or clearly arises on the representations. The Full Court then considered that the representations "must be regarded as extending at least to any material provided in response to the invitation given under s 501CA(3) of the Act to provide representations": Ibrahim at [68]. The Full Court found at [70]-[71] and [74]:
The Minister submits that the Tribunal was not obliged to take in to account a matter that only arose from the Tribunal's findings. The Minister relies upon Jones v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 137, where Logan J (Charlesworth and Thomas JJ agreeing) at [48] approved the following passage from the reasons of the primary judge (Derrington J):
In circumstances where the Minister has an unfettered discretion to take into account whatever matters he considers relevant to the exercise of the discretion, there is no foundation for the submission that he erred by failing to take into account a matter which was not advanced to him and which, if it arose, did so only by reason of the findings which he had made.
That must be so because a decision-maker under s 501CA(4) of the Act is not obliged to consider a matter that was not put forward or advanced by the former visa holder as part of their case for why the cancellation decision should be revoked. It may be noted that, in contrast, in a review of a decision to refuse a protection visa application, an "unarticulated claim" might "clearly emerge" before a decision-maker having regard to the decisionmaker's own findings: see AYY17 at [26].
.
However, an obligation for a decision-maker to consider a particular health condition can only arise under paragraph 9.2(1)(a) of Direction 90 where that condition is put forward by the former visa holder as part of their case for revocation of a cancellation decision. Such a claim must either have been clearly advanced as a reason or part of a reason for revocation or must clearly arise from the material before the decision-maker.
(Emphasis in original)
42It is not disputed that the applicant did not clearly articulate a claim arising under Other Consideration 4. There is a high bar to establishing that a claim clearly emerges from the material. The principles were summarised in AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503; [2018] FCAFC 89 at [18]:
(a)such a finding is not to be made lightly (NABE at [68]);
(b)the fact that a claim might be said to arise from materials is not enough (NABE at [68]);
(c)to clearly emerge from the materials, the claim must be based on "established facts" (SZUTM v Minister for Immigration and Border Protection (2016) 241 FCR 214 (SZUTM) per Markovic J (at [37]-[38])). In SZUTM, Markovic J said:
37 While the tribunal is not required to deal with claims which are not clearly set out and which do not clearly arise from the material before it, the tribunal is not limited to dealing with claims expressly articulated by an applicant. A claim not expressly advanced by an applicant will attract the review obligation of the tribunal when it is plain on the face of the material before it.
38 Both the appellant and the Minister have made submissions on whether there is a requirement that there be a claim based on "established facts". At [35], the primary judge found, relying on NABE and Dranichnikov that, as the threshold point the claim must "emerge clearly from the materials before the Tribunal and should arise from established facts". I agree with the primary judge's approach: the decision in NABE must be read in light of the principle set out in Dranichnikov.
(d)while there is no precise standard to determining whether an unarticulated claim has been "squarely raised" or "clearly emerges" from the materials "a court will be more willing to draw the line in favour of an unrepresented party": Kasupene v Minister for Immigration and Citizenship (2008) 49 AAR 77 per Flick J (at [21]); and
(e)understanding whether a claim has clearly emerged from materials cannot be assessed in a vacuum. Consideration must be given to the way an applicant's claims are presented over time.
(Emphasis in original)
43Taking into account the principles summarised in AYY17, the Minister's submissions must be rejected. No doubt was cast upon the evidence of Mr U, indeed the Tribunal plainly accepted his evidence in its summaries relevant to Primary Consideration 1 and Primary Consideration 2. Therefore, I accept that Mr U's evidence as to the urgent needs of his business and the role the applicant might play in relation thereto "clearly emerge from the material before it" and amounted to "established facts." Every case turns on its own facts and circumstances. The applicant in this matter appeared as a litigant in person, and accordingly should be afforded some latitude. This issue is also relevant to the way in which the "applicant's claims" were "presented over time." The applicant's personal circumstances form referred to the applicant's employment and there was fulsome relevant evidence adduced at the hearing in that regard. As the Tribunal intervened, clearly intending to assist the applicant with his closing submissions, by reference to those of the Minister's, little can be made of the fact that the applicant did not advance a submission in the context of Other Consideration 4, nor of his failure to respond to the invitation of the Minister's representative referred to at paragraph 26 above.
44The suggestion that Tonga is plainly wrong must also be rejected. The Minister advanced no convincing, or indeed any, submissions as to why it was plainly wrong. I am not satisfied that Tonga is plainly wrong and accordingly consider that the Court should observe the well-established principle of judicial comity: Hicks v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 757 at [75] - [76] per French J.
45An error will be material if there is "a realistic possibility that the decision that was made in fact could have been different if the error had not occurred" (emphasis in original): LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12 at [7]; MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506; [2021] HCA 17 at 524 [39] (Kiefel CJ, Gageler, Keane and Gleeson JJ). That enquiry is "wholly backward-looking" and "to be answered by reference to the decision that was made and, depending on the nature of the error, how that decision was made": LPDT at [9] - [10]. Particularly, a Court must not assume the role of the decision-maker: LPDT at [15]; MZAPC at 528 [51].
46The Minister argued that the alleged error could not have realistically changed the outcome of the case as the evidence allegedly supporting the business interests consideration is lacking probative force to lead to an attribution of any significant weight. Further, the Minister contended that even if the evidence could have led to an attribution of significant weight to that consideration, there is no realistic possibility that that would have impacted upon the outcome of the case.
47Meeting the threshold of materiality is not demanding nor onerous: LPDT at [14]. The Court must be careful not to step into the role of the Tribunal and engage in a merits assessment as to what weight would have been attributed to the evidence with respect to Other Consideration 4. In this case, the Tribunal failed to take into account a claim which clearly emerged from the material in relation to Other Consideration 4. Had the Tribunal not erred in this regard, I consider there is a possibility, which is realistic and not fanciful or improbable, that the decision made could have been different. Accordingly, the threshold of materiality in respect of the business interests consideration ground is met.
CONCLUSION
48For the above reasons, the application is allowed. The Tribunal's Decision will be quashed, and mandamus will be ordered with a direction that the Tribunal re-determine the application according to law. The Minister should pay the applicant's costs of the proceedings.
I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Meagher.
Associate:
Dated:8 July 2024
Disclaimer: Curated by HT Syndication.
