Federal Court. Can it be said that "the detail with which the Tribunal addresses other matters, not obviously more pressing than this claim, gives rise to the inference that it overlooked the claim"? Further, although it was open to the Tribunal not to accept a claim, or to give it little weight, can it be said that "it would not have been rational or reasonable for the Tribunal to form such a dismissive view of this claim that it did not warrant any mention in its reasons"?
A delegate of the Minister cancelled the Applicant's visa under s 501(2) of the Migration Act 1958 (Cth).
The Tribunal affirmed that cancellation.
The Federal Court (FCA) described the first ground of an application for judicial review of the Tribunal's decision as follows:
(1) A minor child, whom I will call Matthew, is the son of an adult son of the applicant whom I will call James. The applicant contends that the Tribunal failed to comply with paragraph 8.4(1) of Direction 99 because it conflated claims about James's medical conditions with claims about Matthew's medical conditions. This means, the applicant says, that the Tribunal failed to consider Matthew's medical conditions, and so failed to make a determination about whether cancellation of the visa was, or was not, in the best interests of a child affected by the decision.
(2) The applicant also alleges that the Tribunal failed to consider the extent to which Matthew's best interests differed from those of his brother, whom I will call Noah, and/or those of the applicant's other minor grandchildren. The applicant says that this was a failure to comply with paragraph 8.4(3) of Direction 99.
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The FCA said as follows in relation to the second ground of judicial review:
17 The second ground of review concerns James. The applicant contends that the Tribunal denied procedural fairness or constructively failed to exercise its jurisdiction because it misunderstood the claims that were being made in relation to James. James has autism but the applicant says he claimed that, in addition to that, James is disabled and suffers from ADHD and intellectual impairment. The conflation alleged in ground 1 between James's conditions and those of Matthew meant that the Tribunal failed to appreciate that these latter claims about James had been made (the ones other than autism). Thus the Tribunal's consideration of the extent to which James would need care did not proceed on the basis of a proper appreciation of the claim that he was disabled and suffered from ADHD and intellectual impairment.
Some of the questions to the FCA were as follows:
Question 1: Is what the plurality of what the High Court said in Plaintiff M1/2021 at [24]-[27] in relation to s 501CA(4) of the Migration Act 1958 (Cth) equally applicable to s 501(2)?
Question 2: Did the Tribunal fail to consider Matthew's medical conditions, and so failed to make a determination about whether cancellation of the visa was, or was not, in the best interests of a child affected by the decision?
Question 3: Did the Tribunal fail to consider the extent to which Matthew's best interests differed from those of his brother Noah?
Question 4: Can it be said that "the weight that the Tribunal gave to the primary considerations in favour of cancellation of the visa - the protection of the Australian community, family violence and the expectations of the Australian community - was such that it was bound to have decided to cancel the visa, even if it had properly appreciated the claims that were being made about Matthew (or James)"?
Question 5: Did the Tribunal fail to "appreciate the claims that had been made in respect of James, in particular the claims that he was disabled and suffered from ADHD and intellectual impairment"?
Question 6: In the context of the claims about James' medical conditions, can it be said that "the detail with which the Tribunal addresses other matters, not obviously more pressing than this claim, gives rise to the inference that it overlooked the claim"?
Question 7: The Applicant claimed before the Tribunal that one reasons why the discretion should be exercised in his favour was that James may have to accompany him to Tonga if he were removed from Australia. As per the FCA at [91], that claim "found substantial support from the evidence about the role that the applicant took in caring for James and the financial, psychological and physical challenges that Michelle would face looking after him (and Matthew) on her own". Can it be said that, although it was "within the Tribunal's proper exercise of its statutory functions for it not to accept that evidence, or to give it little weight, or to find that the prospect of James living in Tonga was not a realistic one", "it would not have been rational or reasonable for the Tribunal to form such a dismissive view of this claim that it did not warrant any mention in its reasons"?
The FCA answered those questions as follows: