Federal Court: Can cl 14.2(1)(a) of Direction 65 result in less weight being given to cl 14.2(1)(b)? Did the AAT's failure to make a determination about the best interests of some children amount to non-compliance with Direction 65, despite the fact that the Applicant did not "advance their interests as a positive part of his case"? Does the same principle apply to the Applicant's failure to advance a diagnosis of schizophrenia as a positive aspect of his case? Can errors be aggregated for the purpose of determining materiality?
The wording of Direction 79 is identical in all relevant aspects to the wording in Direction 65, which it replaced.
The Applicant's visa was mandatorily cancelled on character grounds under s 501(3A) of the Migration Act 1958 (Cth) and a delegate subsequently declined to revoke the cancellation pursuant to s 501CA(4).
The Applicant then applied to the Tribunal (AAT) for merits review of the non-revocation decision.
As the Applicant failed the character test, the question to the Tribunal pursuant to s 501CA(4) was whether there was another reason why it should revoke the cancellation. The Tribunal affirmed the delegate's decision.
Matters related to Questions 1 and 2 below
The Tribunal was bound by s 499 to comply with Direction No 65, paragraph 14.2(1) of which contained a mandatory consideration, as follows:
The strength, nature and duration of ties to Australia. Reflecting the principles at 6.3, decision-makers must have regard to:
a) How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i. less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii. More weight should be given to time the non-citizen has spent contributing positively to the Australian community.
b) The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non-citizen's immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).
The Tribunal reasoned as follows in relation to cl 14.2(1):
156. There is a ready (and, in my respectful view, correct) acknowledgement by the Respondent that the Applicant arrived in Australia as a teenager, has resided here for 14 years and, as a consequence, there would be some impact on his family members were he to be returned to Liberia. There was some corroboration from his family members in this regard.
157. However, I am of the view that less weight should be given to this Other Consideration (b) because of the operative effect of paragraph 14.2(1)(a) of the Direction. The Applicant commenced offending within one year of arriving in Australia. Paragraph 14.2(1)(a) stipulates that less weight should be given to this factor when a non-citizen begins offending soon after arriving here. Taking into account all of the evidence in and around the Applicant's offending history, I concur with the Respondent's contention that this Other Consideration (b) weighs slightly in favour of the Applicant, but is not out-weighed by the Primary Considerations weighing against him.
Matters related to Question 3 below
Another mandatory consideration under Direction No 65 was the best interests of minor children in Australia.
The Applicant provided the Tribunal with evidence about the best interests of some of the children that would be affected if he were to be removed from Australia.
However, the Applicant did not provide evidence about other children that would also be affected, although the Tribunal was aware of the existence of those other children and their relationship with the Applicant.
The other children were the Applicant's sister and his partner's daughter, to whom the Tribunal's reasons made no reference at all.
Matters related to Question 4 below
Another mandatory consideration was contained in cl 14.5(1), which read as follows:
The extent of any impediments that the non-citizen 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.
Although the Tribunal was aware that the Applicant had been diagnosed with schizophrenia, "the applicant did not make his mental illness a positive aspect of his case".
The Tribunal found that the Applicant had good health and consequently attributed neutral weight to cl 14.5(1)(a).
Judicial review application
The Applicant eventually applied to the Federal Court (FCA) for judicial review of the Tribunal's decision.
The questions to the FCA were as follows:
Question 1: Did the Tribunal make an error by construing paragraph 14.2(1) of Direction No 65 in a way that the finding reached under paragraph 14.2(1)(a) meant that less weight should be given to the consideration at 14.2(1)(b)?
Question 2: If the answer to Question 1 is "yes", was that error material?
Question 3: Did the Tribunal's failure to make a determination about the best interests of the other children amount to non-compliance with Direction No 65 and thus a jurisdictional error, despite the fact that the Applicant did not "advance their interests as a positive part of his case"?
Question 4: Did the Tribunal's failure to make a determination about the potential impacts of the Applicant's schizophrenia on "establishing [himself] and maintaining basic living standards" amount to non-compliance with Direction No 65 and thus a jurisdictional error, despite the fact that the Applicant "did not make his mental illness a positive aspect of his case"?
Question 5: In circumstances where the errors made by a decision-maker are not, considered individually, material, can the aggregate of those errors be sufficient to satisfy the materiality test in some circumstances?
The FCA answered those questions as follows:
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