Federal Court (Full Court). Should different passages of written submissions be considered by the AAT it in the context of the entirety of those submissions? If the AAT considers that a factor in Direction 79 weighs strongly in favour of revoking a visa cancellation, can an error in assessing that factor be material in that, had the error not been made, the factor could weighed even more strongly in favour of revocation? Was the effect of non-revocation on the Appellant's mother relevant to cll 13(2)(c), 13.3, 14(1)(b) and 14.2(1)(b) of Direction 79?
The Appellant argued before the Tribunal that the power under s 501CA(4) of the Migration Act 1958 (Cth) should be exercised in his favour, including because of the impact that non-revocation of the mandatory cancellation of his visa would have on his mother. The Tribunal affirmed the delegate's decision no to revoke the mandatory cancellation of the visa, despite its finding that the effects of non-revocation on the Appellant's mother weighed strongly in favour of revocation.
The Appellant the applied to the Federal Court (FCA) for judicial review of the delegate's decision. The primary judge found that the Tribunal erred in not considering the impact of non-revocation on the Appellant's mother, but held that the error was immaterial in that it was "fanciful to think that the outcome could have been any different if ... the Tribunal had considered the effect of non-revocation on [the Appellant's mother]".
On appeal, the Full Court of the FCA (FCAFC) said as follows:
14 The parts of the Direction presently relevant are:
14. Other considerations – revocation requests
(1) In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):
(a) …
(b) Strength, nature and duration of ties;
(c) …
15 Paragraph 14.2 of the Direction elaborates on para 14.1(b) and provides that:
(1) The strength, nature and duration of ties to Australia. Reflecting the principles at 6.3, decision-makers must have regard to:
(a) …
(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).
16 Paragraph 6.3 contains the principles underpinning the whole of the Direction, the last of which reads:
(7) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen's visa should be cancelled, or their visa application refused.
17 Significantly, for the outcome of this appeal, the principles articulated in para 6.3 of the Direction are relevant to both the primary considerations and the other considerations set out in the Direction.
18 In the present appeal, the two relevant considerations which [the Appellant] argued should have been weighed so as to take into account the consequences for other immediate family members in Australia were primary consideration (c) – expectations of the Australian community (para 13(2)(c) and 13.3) and other consideration (b) – strength, nature and duration of ties (para 14(1)(b) and 14.2(1)(b)).
52 The primary judge then moved to consider whether the material which had been overlooked could have realistically made a difference to the decision had it not been overlooked. The primary judge’s materiality finding is at [66] and [68]. The primary judge found that it was fanciful to think that the outcome could have been any different if the Tribunal had considered the effect of non-revocation on [the Appellant's mother]. The primary judge concluded that the Tribunal’s error was not material when regard was had to the fact that the Tribunal found in any event that other consideration (b) was strongly in [the Appellant's mother's] favour and having regard to the weight the Tribunal attached to primary considerations (a) and (c) ([66], [68]).
Some of the questions to the FCAFC were as follows:
Question 1: Should the different passages of the Appellant's written submissions to the Tribunal have been considered by it in the context of the entirety of those submissions?
Question 2: If the Tribunal considers that a factor in Direction 79 weighs strongly in favour of revoking the mandatory cancellation of a visa, but the balancing of that factor against all other factors results in a finding that the revocation should not occur, can it be said that an error in assessing that factor can nevertheless be material in that, had the error not been made, the factor could gave weighed even more strongly in favour of revocation? In other words, can it be said that the test for materiality under s 501CA(4) of the Migration Act 1958 (Cth) involves a balancing, instead of a binary, exercise?
Question 3: Was the effect of non-revocation of the Appellant's visa on his mother relevant both to cll 13(2)(c) and 13.3 (expectations of the Australian community) and cll 14(1)(b) and 14.2(1)(b) (strength, nature and duration of ties to Australia) of Direction 79?
The FCAFC answered those questions as follows: