Did para 8.3(4)(f) require consideration of child’s own views of removal from Australia?

The above questions and answers are not necessarily expressly asked or answered in the decision. That terminology (questions and answers) is used only for the purpose of briefly summarising the decision.

Extract

Seau v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 176

Court: Federal Court of Australia

Applicant: PRITCHARD JUNIOR SEAU

Respondents: Minister; AAT

Judgement (for the Applicant): RARES J

[Question 1: Can it be said that, as the Applicant did not raise with the Tribunal his age, mental or physical health as relevant were he to be removed from Australia, par 9.2(1)(a) of Direction 90 did not require the Tribunal to take those matters into account, as that provision only required such matters to be taken into account ‘where relevant’?]

36    It is convenient to deal with ground 2 immediately. As I noted in the course of argument, par 9(1) of Direction 90 requires the matters in par 9.2(1)(a) to be taken into account “where relevant”. As Kiefel CJ, Keane, Gordon and Steward JJ said in Plaintiff M1/2021 400 ALR at 425-426 [22], [24]-[25] and [27]:

22.     In determining whether they are satisfied that there is “another reason” for revoking a cancellation decision, the decision-maker undertakes the assessment by reference to the case made by the former visa holder by their representations.

…

24.     Consistently with well-established authority in different statutory contexts, there can be no doubt that a decision-maker must read, identify, understand and evaluate the representations. Adopting and adapting what Kiefel J (as her Honour then was) said in Tickner v Chapman [(1995) 57 FCR 451 at 495], the decision-maker must have regard to what is said in the representations, bring their mind to bear upon the facts stated in them and the arguments or opinions put forward, and appreciate who is making them. From that point, the decision-maker might sift them, attributing whatever weight or persuasive quality is thought appropriate. The weight to be afforded to the representations is a matter for the decision-maker. And the decision-maker is not obliged “to make actual findings of fact as an adjudication of all material claims” made by a former visa holder.

25.     It is also well-established that the requisite level of engagement by the decision-maker with the representations must occur within the bounds of rationality and reasonableness.

…

27.    None of the preceding analysis detracts from, or is inconsistent with, established principle that, for example, if review of a decision-maker’s reasons discloses that the decision-maker ignored, overlooked or misunderstood relevant facts or materials or a substantial and clearly articulated argument; misunderstood the applicable law; or misunderstood the case being made by the former visa holder, that may give rise to jurisdictional error.

(emphasis added)

37    In my opinion, ground 2 has no substance. Mr Seau made no clearly articulated claim before the Tribunal that any of his age, mental or physical health either would affect him or create an impediment were he to be returned to New Zealand. In any event, the Tribunal had regard to his age in the course of its reasoning. It found that there would be significant impediments to him and others if he were removed from Australia that weighed heavily in favour of revocation. It also found that he would be able to find employment were he returned to New Zealand. However, it did not avert to those matters beyond its discussion of the impact of his past addictions to alcohol and drugs and the potential that they may or may not resurface in the context of future offending.

38    In my opinion, the case made by Mr Seau for revocation of the cancellation decision raised nothing to do with his age, mental or physical health were he to be returned to New Zealand. Accordingly, par 9.2(1)(a) of Direction 90 did not require the Tribunal to take those matters into account because Mr Seau’s representation did not raise them as relevant: see Plaintiff M1/2021 400 ALR at 425-427[22], [25]-[27]. Ground 2 fails.

[Question 2: Can it be said that, where a provision, “such as s 499(2A) of the Migration Act, requires a decision-maker to consider one or more factors as a primary consideration in arriving at a decision to exercise a power, the decision-maker must take each such factor into account and give it weight ‘as a fundamental element in making his determination'”?]

39    Where a statute, such as s 499(2A) of the Migration Act, requires a decision-maker to consider one or more factors as a primary consideration in arriving at a decision to exercise a power, the decision-maker must take each such factor into account and give itweight “as a fundamental element in making his determination”: R v Hunt; Ex Parte Sean Investment Pty Ltd (1979) 180 CLR 322 at 329, per Mason J.

40    In Telstra Corporation Ltd v Australian Competition and Consumer Commission (2008) 176 FCR 153 at 181-183 [103]-[112](applied in Telstra Corporation Ltd v Australian Competition Tribunal (2009) 175 FCR 201 at 242 [267] per Jacobson, Lander and Foster JJ), I explained how a legislative requirement to have regard to, or take into consideration, a matter as a primary consideration must be approached by a decision-maker. In such a case, the decision maker must take each matter that the statutory provision identifies into account as a fundamental or central element in making the decision. I held (at 181 [105]) that where the provision required more than one consideration to be taken into account, Mason J had explained:

…in his classic judgment in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 41, in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker and not the Court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising a statutory power. Mason J said that the Court could set aside an administrative decision which had failed to give adequate weight to a relevant factor of great importance, or had given excessive weight to a relevant factor of no great importance, but the preferred ground on which that power was to be exercised was that the decision was “manifestly unreasonable”. A person entrusted with a discretion must call his own attention to the matters which he is bound to consider: Peko-Wallsend 162 CLR at 39 per Mason J applying Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at 228 per Lord Greene MR.

(emphasis added)

41    In East Australian Pipeline Pty Ltd v Australian Competition and Consumer Commission (2007) 233 CLR 229 at 244 [52], Gleeson CJ, Heydon and Crennan JJ said that where a decision-maker must consider matters prescribed by law, generally, he or she cannot “jettison or ignore [some of] the factors … or … give them cursory consideration only in order to put them to one side” (emphasis added).

42    Gummow and Hayne JJ concurred, observing at 256 [102]:

It was not enough for the ACCC to say in its final determination that it had considered those matters in the sense of having looked at but discarded them.

[Question 3: Section 43(2B) of the Administrative Appeals Tribunal 1975 (Cth) required the Tribunal in giving its reasons to include its findings on material questions of fact and “a reference to the evidence or other material on which those findings were based”. Can it be said that “the legislative purpose of such a provision was to enable a person dissatisfied with a decision to know with certainty what the Tribunal’s reasons were for it ‘and what facts it considered material to that conclusion'”?]

44    In Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 346 [69] McHugh, Gummow and Hayne JJ explained the requirements of s 430 of the Migration Act (which is an analogue of s 43(2B) of the Administrative Appeals Tribunal 1975 (Cth)) that the Tribunal give reasons for its decision. Relevantly, s 500(6G) of the Migration Act applies s 43(2B) to applications to the Tribunal, such as Mr Seau’s, to review the decision of a delegate under s 501CA(4) not to revoke a cancellation of a visa under s 501(3A)), and 43(2B) requires the Tribunal in giving its reasons to “include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based” (emphasis added). Their Honours held that the legislative purpose of such a provision was to enable a person dissatisfied with a decision to know with certainty what the Tribunal’s reasons were for it “and what facts it considered material to that conclusion”. They said that (at 346 [69]) (referring to s 430 of the Migration Act):

Similarly, a court which is asked to review the decision is able to identify the Tribunal’s reasons and the findings it made in reaching that conclusion. The provision entitles a court to infer that any matter not mentioned in the s 430 statement was not considered by the Tribunal to be material (Repatriation Commission v O’Brien (1985) 155 CLR 422 at 446, per Brennan J; Sullivan v Department of Transport (1978) 20 ALR 323 at 348-349, per Deane J; at 353, per Fisher J; cf Fleming v The Queen (1998) 197 CLR 250 at 262-263 [28]-[29])….The Tribunal’s identification of what it considered to be the material questions of fact may demonstrate that it took into account some irrelevant consideration or did not take into account some relevant consideration(Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24).

(bold emphasis added; italic emphasis in original)

[Question 4: Did para 8.3(4)(f) of Direction 90 require the decision-maker to have regard to a child’s own expression of the importance to him or her of the non-citizen seeking review of a decision affecting his or her visa, instead of only considering the evidence of adults as to the adverse impact?]

45    I reject the Minister’s argument that the Tribunal considered, even if it did not mention either in its reasons, each of the material expressing T’s views and Ms Kirlagitsi’s opinion, as required by pars 8.3(4)(f) and (d), respectively.

46    By force of par 8.3(4)(f), the Tribunal must consider:

any known views of the child (with those views being given due weight in accordance with the age and maturity of the child)

(emphasis added)

47    Mr Seau had put to the Tribunal, in the annexure to his statement of facts, issues and contentions, T’s views, which she made known. She twice said in her letter to the Tribunal that her uncle, Mr Seau, meant “the world to me”. She said that “He is like a dad to me”. She identified how he impacted on her life and what a significant figure he was in it. In addition, her birthday card or letter to Mr Seau, expressed her love for him and implored that “I wish that you were here to celebrate” and that “I will love you no matter what happens”. The Tribunal did not state in its reasons whether or how it gave “those views … due weight” in accordance with pars 8.3(4)(f).

48    I agree with Rangiah J’s analysis in Cowgill [2022] FCA 1337 of the particular importance to a decision-maker’s approach, and performance of the evaluation task, in considering the child’s best interests in accordance with the mandatory primary consideration in pars 8.3(4)(f), namely that it have regard to the child’s own expression of the importance to him or her of the person seeking review of a decision affecting his or her visa. The decision-maker must do so in the manner that I explained in Telstra 176 FCR at 181-183 [103]-[112].

49    As Rangiah J identified in Cowgill [2022] FCA 1337 at [44], it is one thing to accept the evidence of parents or others close to a child as to how they perceive the removal of a person from Australia may affect the child, and another to have regard to the way in which the child, himself or herself, expresses that impact, having regard to the manner of expression and his or her age, as par 8.3(4)(f) requires. In Cowgill [2022] FCA 1337 at [44], his Honour found that, if the Tribunal had considered A’s letter:

…it would have been open to the Tribunal to accord greater weight to the daughter’s expression of her views about the effects of the removal upon her than it did to her parents’ evidence.

(emphasis added)

50    There, like here, the Tribunal accepted the evidence of adults as to the adverse impact on Mr Cowgill’s daughter, A, but it did notdemonstrate in its reasons that it had taken into account her actual views, of which it knew, in accordance with par 8.3(4)(f) of Direction 90.

51    Moreover, the Tribunal made no mention in its reasons of T’s clearly expressed views, or of the evidence of the psychologist, Ms Kirlagitsi, in considering, as the Tribunal was required, the best interests of T, in relation to the consideration mandated in par 8.3(4)(d), namely, “[t]he likely effect that any separation from a noncitizen would have on the child”.

52    The psychologist’s report related directly to the particular effect on T of Mr Seau’s provision of social and emotional support for her as a growing child and her need for that support. That was an expert opinion as to the positive contribution Mr Seau had made to T’s life and that his presence “may aid in building her socio-emotional skills’.

53    The Tribunal had to consider, as required by par 8.3(4)(d), the likely effect of any separation taking into account the child’s and non-citizen’s ability to maintain contact in other ways. The psychologist made a case for Mr Seau’s physical presence as an important matter in the child’s life. Yet, in its reasons, the Tribunal made no reference at any point to those or T’s views. I infer that this was because, contrary to its obligation to take each of those matters into account, it did not consider them: Yusuf 206 CLR at 346 [69]; Telstra 176 FCR at 181 [105]; East Australian Pipeline 233 CLR at 344 [53]; Cowgill [2022] FCA 1337 at [44].

54    For these reasons, I am of opinion that the Tribunal made two jurisdictional errors in failing to take into account, as required byeach of pars 8.3(4)(f) and (d) of Direction 90, as a fundamental element in making its decision, the expressed views of either T or thepsychologist as to the impact on her, of Mr Seau’s removal, over and above the evidence of Mr Seau and other witnesses, which it accepted weighed heavily in favour of revocation.

[Question 5: Was the Tribunal’s error in not considering the child’s own views in breach of para 8.3(4)(f) and a psychologist’s report on the impact of removal of the non-citizen from Australia on the child immaterial in that, in any event, the Tribunal ascribed heavy weight to the best interests of the child in the non-citizen’s favour? In other words, can it be said that the assessment of materiality in this case involves a binary, instead of a balancing, exercise?]

55    I reject the Minister’s argument that, notwithstanding this failure to refer expressly to either of those matters, that any error wasnot material. In Nathanson v Minister for Home Affairs (2022) 403 ALR 398 at 410 [33], Kiefel CJ, Keane and Gleeson JJ explained that:

There will generally be a realistic possibility that a decision-making process could have resulted in a different outcome if a party was denied an opportunity to present evidence or make submissions on an issue that required consideration. The standard of “reasonable conjecture” is undemanding. It recognises that a fundamental purpose of affording procedural fairness is to afford an opportunity to raise relevant matters which are not already obvious, or not liable to be advanced by the apparently persuasive “story” of the opposing party. Where a Tribunal errs by denying a party a reasonable opportunity to present their case, “reasonable conjecture” does not require demonstration of how that party might have taken advantage of that lost opportunity. Nothing said in MZAPC denies this. To the contrary, the standard of “reasonable conjecture”, correctly applied, proceeds on assumptions that are derived from the rationale for procedural fairness, namely that, if given a fair opportunity to present their case, a party will take advantage of that opportunity and that, by doing so, the party could achieve a favourable outcome.

(bold emphasis added; italic emphasis in original)

56    In explaining how it undertook at its overall weighing process in par 118 of its reasons, the Tribunal found that relevantly, a number of factors weighed in favour of revocation, but it gave greater weight to factors against it. The best interests of T were a primary relevant consideration because par 8(3) and each of pars 8.3(4)(d) and (f) specified factors that a decision-maker had to take into account as a fundamental element in its decision-making. In Telstra 176 FCR at 182-183 [108]-[110], I explained:

108.     Because s 152CR(1) required it to take into account each of the seven specified factors, the Commission had to give each of them appropriate consideration in arriving at its final determination.  The number and variety of factors which a statute requires a decision-maker to take into account or to have regard to in arriving at a decision necessarily affects the weight any one of those factors must be given in the deliberative process.  In Sean Investments 180 CLR 322, the costs were fundamental – or foundational – because they were the only matter which the statute prescribed.  The subject matter, scope and purpose of the statutory power provide a context in which to assess the duties it imposes on the decision-maker in any particular situation:  cf  Foster v Minister for Customs (2000) 200 CLR 442 at [22]-[23] per Gleeson CJ and McHugh J, Gaudron and Hayne JJ agreeing with their Honours at [32].

109.     Here, s 152CR(1) prescribes a number of matters for consideration.  This is a sure legislative indication that these matters must be central matters for the Commission.  But, because s 152CR(2) expressly widens the range of matters which the Commission may consider, it is authorised to arrive at a final determination, after due consideration, which accords more weight to some other factor or factors than those in s 152CR(1).  Indeed, the factors in s 152CR(1) itself tend in different directions.  The interests of a carrier (s 152CR(1)(b)) and those of all persons who have a right to use a declared service (s 152CR(1)(c)) more often than not will be opposed.  If the Commission were to give fundamental weight to each in the sense which Telstra argued, how could it arrive at a decision favouring one at the expense of the other?  cf Telstra Corporation Limited v Australian Competition and Consumer Commission [2008] FCA 1436 at [311]-[312] per Lindgren J.

110.     I am of opinion that the sense in which the High Court used the expression “fundamental weight” in this context is to require the decision-maker to treat the consideration of the factors, as opposed to the factors themselves, as a central element in the deliberative process:  Meneling Station 158 CLR at 338 per Mason J.  In this way the decision-maker will give appropriate weight to those factors.  The Parliament sought to ensure that the Commission would give proper, genuine and realistic consideration to each of the factors it specified in s 152CR(1) but without confining it to those matters, as s 152CR(2) showed.  Such consideration must be reflected in the Commission’s reasons for its decision.

(bold emphasis added; italic emphasis in original)

57    It can be accepted that the Tribunal found, without taking into account either T’s known views or Ms Kirlagitsi’s opinions, that the evidence of Mr Seau and Ms CH established, based on their (but not T’s) expressed views, the closeness of his relationship with T and that her best interests weighed heavily in favour of revocation. However, the Tribunal did not take into account the relevant mandatory considerations in pars 8.3(4)(d) and, in particular, (f) in dealing with that other evidence. Thus, in undertaking its overall weighing process, as it explained in par 118, it weighed only the particular factors that it specified which led ultimately to its decision.

58    I am of opinion that, notwithstanding that the Tribunal already regarded the best interests of T as weighing heavily in favour of revocation, its ultimate allocation of weight may have been affected had it taken T’s expressed views and, possibly, Ms Kirlagitsi’sevidence, into account as s 499(2A) and Direction 90 required, and, that, had it done so, one or both may have proved determinative: Telstra 176 FCR at 182-183 [110]. That is what Mr Seau asked it to do, as the Tribunal recorded in par 65.

[Question 6: In Nathanson at [33], Kiefel CJ, Keane and Gleeson JJ said that the standard of reasonable conjecture in determining whether an error is material and therefore jurisdictional is “undemanding”. Is the standard also undemanding “in relation to, for example, a failure to take a relevant consideration into account or to deny a party an opportunity to present evidence or make submissions on an issue that required consideration”?]

59    In Nathanson at 403 ALR at 410 [33], Kiefel CJ, Keane and Gleeson JJ said that the court must undertake a process of reasonable conjecture in determining the materiality of a jurisdictional error. That process is undemanding in relation to, for example, a failure to take a relevant consideration into account or to deny a party an opportunity to present evidence or make submissions on an issue that required consideration. So, too, a failure to have regard to, or consider, evidence or material that the decision-maker had to take into account as a fundamental element in his or her decision-making process is a denial of procedural fairness: that is, it constitutes a failure to adhere to the process that the Parliament has mandated that a decision-maker must follow in arriving at an exercise of the power which the enactment confers.

60    Mr Seau’s relationship with T was a central element in his submission under s 501CA(4)(b) of the Migration Act that there was another reason why the cancellation decision should be revoked. Each of the two types of evidence, namely, T’s statements as to her perception of her relationship with Mr Seau and the impact that Mr Seau’s absence would have on her, and Ms Kirlagitsi’s opinion,may have affected the ultimate allocation of the weight given to the best interests of T, had the Tribunal taken either or both into account.

61    In my opinion, it cannot be said that consideration of those matters could have made no difference to the ultimate decision, simply because the Tribunal had said it weighed Mr Seau’s and Ms CH’s evidence of T’s best interests heavily in favour of revocation. In the evaluative exercise of weighing the strength of evidence or arguments in any particular context, the failure to take into account relevant evidence or material may affect the outcome of the overall outcome. As Mason J explained in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 41, ordinarily, the weight that a factor that the legislation prescribes as a mandatory relevant consideration is a matter for the decision-maker, not the Court: see too Telstra 176 FCR at 182-183 [108]-[110].

62    It is not possible to find that the Tribunal had regard to either T’s or Ms Kirlagitsi’s evidence, because it failed to refer to that evidence at all. These were two separate instances of the Tribunal failing to comply with its obligation to have regard to each mandatory relevant consideration prescribed in pars 8.3(4)(d) and (f) of Direction 90 that bore directly on T’s position. I am satisfied that there is a realistic possibility that, in arriving at its overall weighing of the whole of the circumstances of Mr Seau’s case, the Tribunal could have found more persuasive the case for revocation than it did, had it taken each or either of those matters into account as a fundamental element in its decision-making: Nathanson 405 ALR at 410 [33].