Ibrahim / Nguyen division resolved?

Federal Court: In SZMTA, HCA held that: error was jurisdictional only if it was material, that is if a different decision could have been made had the error not been made; materiality is a question of fact of which judicial review applicants bear the onus of proof. In Ibrahim, FCAFC held that it was incumbent on the judicial review applicant to demonstrate what would or could have occurred had the error not been made. In Nguyen, FCAFC, differently constituted, disagreed with Ibrahim. Can that division be resolved? Further, can errors which individually do not satisfy the materiality test do so if combined?

The Applicant's visa was mandatorily cancelled under s 501(3A) of the Migration Act 1958 (Cth). The Applicant then made representations seeking revocation of the decision to cancel his visa pursuant to s 501CA(3).

The Minister decided not to revoke the cancellation of the Applicant's visa, pursuant to s 501CA(4) and the Applicant applied to the Tribunal for merits review of the non-revocation decision.

As it was not in dispute that the Applicant did not satisfy the character test, the only question to the Tribunal was whether there was "another reason" why the cancelation should be revoked, as s 501CA(4) relevantly read as follows (emphasis added):

(4)  The Minister may revoke the original decision if:

(a)  the person makes representations in accordance with the invitation; and

(b)  the Minister is satisfied:

(i)  that the person passes the character test (as defined by section 501); or

(ii)  that there is another reason why the original decision should be revoked.

By the time of the Tribunal's decision, the Minister had issued a Ministerial Direction under s 499 about the exercise of the statutory power under s 501CA, namely Direction No 79.

That Direction provided that decision-makers 'must take into account the primary and other considerations relevant to the individual case' (para 8(1)).

Para 14.2(1) provided as follows, as part of the "other considerations":

Strength, nature and duration of ties

(1)    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's decision record included the following passages (emphasis added):

101. The Respondent acknowledges that the Applicant has resided in Australia for some 24 years. His partner and four children reside in Australia and that the Applicant's employment history demonstrates some contribution to the Australian community …

102. The Respondent submits, however, that this limited contribution should be considered against the financial cost to the Australian community in responding to the Applicant's offending through policing, the courts and corrective services.

103. The Respondent concedes that this consideration may weigh in favour of the revocation of the cancellation of the visa, but, according to the Respondent, that it is outweighed by the primary considerations weighing heavily against the revocation of the cancellation. The Tribunal agrees with the Respondent's assessment that this consideration weighs in favour of the revocation of the cancellation. The Tribunal, however, notes that the Applicant's ties to the Australian community have not always resulted positively for either the community or the Applicant.

104. The weight that can be given to this consideration is also diminished by the fact that the Applicant started offending in December 1995 very shortly after he arrived as a 19 year old in March 1995 (Direction 79, paragraph 14.2(1)(a)(i)).

The "questions" to a single FCA judge which we would like to raise are as follows (bearing in mind other questions were raised in the decision):

Question 1: which of the following 2 decisions should be followed on whether it is incumbent on a judicial review applicant to demonstrate what would or could have occurred had an error not been made by an administrative decision-maker: Ibrahim or Nguyen?

Question 2: could it be said that the emphasised words in paragraphs 103 and 104 of the Tribunal's decision record evidence a misinterpretation on the part of the Tribunal to the effect that "less weight" should be given, pursuant to para 14(1)(a)(i), to the ties described under para 14(1)(b) of the Direction?

Question 3: can errors which, individually, might not satisfy the materiality test, satisfy that test if aggregated?

The FCA answered those questions as follows:

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