Homelessness an irrelevant consideration?

Federal Court: Is homelessness a mandatorily irrelevant consideration for the purposes of paragraph 14.2(1)(a)(ii) of Direction 65, which makes the time a non-citizen "has spent contributing positively to the Australian community" a mandatory consideration? If not, may there be "circumstances where the manner of a decision-maker’s reference to, or application of, a non-citizen’s homelessness in Australia is so alien to, or incompatible with, the subject-matter, scope or purpose of the Act such as to infringe an implied limitation as to the decision-makers’ powers"? If so, was the present case one of those circumstances? Further, s 43(2B) of the AAT Act requires the AAT to include in its reasons “its findings on material questions of fact and a reference to the evidence or other material on which those findings were based”. Does it follow that everything stated in the AAT's reasons is material to its decision?

The Applicant's visa was mandatorily cancelled on character grounds pursuant s 501(3A) of the Migration Act 1958 (Cth).

A delegate of the Minister invited the Applicant pursuant to s 501CA(3) to make representations seeking revocation of the cancellation of his visa, which he did.

As the Applicant did not satisfy the character test, the question to the delegate under s 501CA(4) was whether there was "another reason" why the cancellation should be revoked.

The delegate refused to revoke the cancellation of his visa and the Applicant then applied to the Tribunal (AAT) for merits review of the non-revocation decision.

The Tribunal was bound by s 499(2) of the Act to comply with Direction No 65, one of the mandatory considerations of which was contained in paragraph 14.2(1), which provided as follows (emphasis added):

… 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 affirmed the non-revocation decision and its reasons included the following passages (emphasis added by the Federal Court (FCA)):

80.     The Tribunal also needs to consider what contribution the Applicant has made to the Australian community. There is limited evidence as to what employment the Applicant has had during his time in Australia. That evidence reveals some jobs largely of a manual nature for limited periods which have of course been punctuated or terminated by his periods of imprisonment. Further, particularly in the reasons provided by the sentencing judges on occasions when he has appeared in court that are in evidence it is apparent that the Applicant has had several protracted periods of homelessness.

81.     For these reasons it is apparent that only slight weight can be given to his time spent contributing positively to the Australian community in the relevant sense it is a factor significantly outweighed by the reality that his offending was far more extensive over a sustained timespan and involved serious crimes.

82.     It is considered by the Tribunal that, all these matters considered, the strength, nature and duration of the Applicant’s ties to Australia weigh to some reasonable degree in favour of revoking the mandatory cancellation of the Applicant’s visa.

The questions to the FCA were as follows:

Question 1: Is homelessness a mandatorily irrelevant consideration for the purposes of paragraph 14.2(1)(a)(ii) of Direction No 65?

Question 2: If the answer to Question 1 is "no", may there be , in theory, "circumstances where the manner of a decision-maker’s reference to, or application of, a non-citizen’s homelessness in Australia is so alien to, or incompatible with, the subject-matter, scope or purpose of the Act such as to infringe an implied limitation as to the decision-makers’ powers"?

Question 3: If the answer to Question 2 is "yes", was the present case one of those circumstances?

Question 4: Given that s 43(2B) of the Administrative Appeals Tribunal Act 1975 (Cth) requires the Tribunal to include in its reasons “its findings on material questions of fact and a reference to the evidence or other material on which those findings were based”, does it "necessarily follow from that statutory language that everything stated in the Tribunal’s reasons is material to its decision in the relevant sense"?

Question 5: Does the "inclusion of a factual matter in the “representations” provided by a non-citizen to a decision-maker under s 501CA(4) ... inherently constitute a submission that the factual matter is a reason why the visa cancellation should be revoked"?

Question 6: In answering Question 5, is there "limited weight to the applicant’s observation that he was unrepresented at the time of initially making his revocation request" to the delegate, given that he "received legal assistance from counsel in the Tribunal"?

The FCA answered those questions as follows:

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