Federal Court. Did Direction 90 preclude Tribunal from considering a claim relating to extent of impediments if removed, as the claim fell outside the considerations set out in para 9.2(1)? Was the Tribunal expected to discuss whether its finding that removal from Australia was likely to result in hardship of itself was or formed part of “another reason” to revoke the visa cancellation pursuant to s 501CA(4)(b) of the Migration Act 1958 (Cth)? If so and the Tribunal did not discuss the effect of that finding, was the standard of reasonable conjecture for establishing materiality undemanding?
The applicant’s visa was mandatorily cancelled pursuant to s 501(3A) of the Migration Act 1958 (Cth), after which a delegate of the first respondent (Minister) refused to revoke the cancellation pursuant to s 501CA(4) of the Act. The applicant then applied to the second respondent (Administrative Appeals Tribunal) for review of the non-revocation decision. The Tribunal was bound to comply with Ministerial Direction 90, para 9(1) of which provided that decision-makers must consider, where relevant ‘other considerations’ such as the ‘extent of impediments if removed’. Para 9.2(1) of Direction 90 provided as follows:
9.2 Extent of impediments if removed
(1) Decision-makers must consider the extent of any impediments that the noncitizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a) the non-citizen’s age and health;
b) whether there are substantial language or cultural barriers; and
c) any social, medical and/or economic support available to them in that country.
The applicant submitted before the Tribunal that a reason for revoking the cancellation decision was that removing him to New Zealand and separating him from his family would adversely affect his mental health. The Tribunal, in assessing the extent of impediments if removed, said as follows at [102] (original emphasis):
This Other Consideration does not require me to take into account hardship that the Applicant may experience in New Zealand per se. It requires me to consider the extent of any “impediments to the Applicant establishing himself and maintaining basic living standards” in New Zealand. None of the matters raised by the Applicant are of the kind that would tend to prevent him from obtaining accommodation, securing employment, financial support and sustenance, or accessing services. However, I accept that deterioration of his mental health and separation from Ms C and Child A could result in him having some initial difficulty establishing himself.
The Tribunal affirmed the non-revocation decision, after which the applicant applied to the Federal Court (FCA) for judicial review of the Tribunal’s decision, arguing that the Tribunal did not give proper, genuine and realistic consideration to the representations of the applicant’s mental health outcome if he was removed to New Zealand.
Some of the questions to the FCA were as follows:
Question 1: Did the Tribunal consider whether, and to what extent, the likely effect of removal on the Applicant’s mental health weighed in favour of revoking the cancellation decision?
Question 2: Did s 501CA(4) of the Act confer a wide discretionary power on the Tribunal, which could not be fettered by any Ministerial direction?
Question 3: If the answer to Question 2 is 'yes', does it necessarily follow from that broad discretionary power that, if the Tribunal interpreted Direction 90 as precluding it from considering any “other considerations” outside of those set out in para 9.2(1), that would be erroneous?
Question 4: Did the Tribunal misconstrue para 9(1)?
Question 5: Was the Tribunal expected to discuss whether its finding that removal from Australia was likely to result in hardship of itself was or formed part of “another reason” to revoke the visa cancellation pursuant to s 501CA(4)(b)?
Question 6: Should it be inferred that the Tribunal failed to take that consideration into account, in circumstances where it cannot reasonably have disregarded the effect of removal on the applicant’s mental health as irrelevant or trivial or as subsumed into its consideration of other matters, as the Tribunal expressly found that it was not able to consider that matter of itself under para 9.2 of the Direction?
Question 7: Can it be said that, whether the Tribunal’s error in failing to discuss whether its finding that removal from Australia was likely to result in hardship of itself was or formed part of “another reason” to revoke the visa cancellation pursuant to s 501CA(4)(b) was material to the outcome fell to be determined as a matter of reasonable conjecture, with the standard of reasonable conjecture being undemanding?
The FCA answered those questions as follows: