Did the Tribunal's failure to consider representation on inter alia the appellant’s mother relevant to the Tribunal’s attribution of weight to two relevant considerations under s 499(1) of the Migration Act, 1958 (Cth) amount to jurisdictional error?

Dunasemant v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 13 (17 February 2022)

Intro:-

This is an appeal from a decision of a single judge of this Court exercising original jurisdiction under s 476A of the Migration Act 1958 (Cth) to review a decision of the Administrative Appeals Tribunal.

Facts:-

The Tribunal affirmed a decision of a delegate of the first respondent (Minister) made under s 501CA(4) of the Act not to revoke the mandatory cancellation of a Class TY Subclass 444 Special Category (Temporary) visa pursuant to which the appellant, Luke Dunasemant, a citizen of New Zealand, has lived in Australia for about 18 years.

The primary judge found that the Tribunal erred in failing to consider the effect of non-revocation on Mr Dunasemant’s mother, concluding that Mr Dunasemant’s representations on this topic and the evidence said to support them had been overlooked by the Tribunal. Nevertheless, the primary judge found that the Tribunal's failure to take this matter into account was not a jurisdictional error, because it was not material to the Tribunal's decision.

The original notice of appeal was filed on 3 March 2021, at a time when Mr Dunasemant was not legally represented. It was limited to a single ground of appeal which, inter alia, challenged the primary judge’s finding on the question of materiality.

By notice of contention filed on 31 March 2021, the Minister contended that a further ground upon which the primary judge’s conclusion as to the absence of jurisdictional error should be upheld was because there was an insufficient legal and evidential basis to support a finding that the Tribunal failed to consider the impact of non-revocation on Mr Dunasemant’s mother.

On 7 May 2021, Mr Dunasemant having obtained legal representation, filed an amended notice of appeal and an interlocutory application seeking to adduce further evidence on the appeal, effectively being the transcript of the proceedings before the Tribunal, which was not before the primary judge.

The Primary Judge's Decision

A key finding by the primary judge was that the Tribunal, in what was otherwise a detailed, lengthy and reasoned decision, overlooked and failed to have regard to the effect of non-revocation on Mr Dunasemant’s mother.

The application before the primary judge was limited to one ground. The ground was that the Tribunal failed to consider the effect of non-revocation on Mr Dunasemant’s mother, although it was required to do so under Direction no. 79 “Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA”. The Direction is a written direction given by the Minister under s 499(1) of the Act and with which the Tribunal is bound to comply: s 499(2A).

The primary judge set out the submissions made by Mr Dunasemant (at [24]):

Mr Dunasemant submitted that the Tribunal was required to consider the effect of non-revocation on his mother as a member of his family with a right to remain in Australia indefinitely so that its failure to do so amounts to jurisdictional error. Yet, despite the terms of para 14.2(1)(b) of the Direction, the Tribunal did not consider the effect of non-revocation on any of his immediate family members in Australia. He also submitted that, if the Tribunal had considered the effect of non-revocation on his mother as it was required to do, then “it is possible the Tribunal may have found” that the first and third primary considerations were outweighed by the other consideration in para 14.2(1).

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) ...

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).

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.

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.

In the present appeal, the two relevant considerations which Mr Dunasemant 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)).

The primary judge identified the question for determination as whether the Tribunal fell into jurisdictional error by failing to consider the effect of non-revocation on Mr Dunasemant’s mother. The primary judge answered that question in the negative and dismissed Mr Dunasemant’s application. In reaching her conclusion, the primary judge asked and answered the following three questions. First, whether the Tribunal was required to consider the effect of non-revocation on Mr Dunasemant’s mother. Answer, yes. Second, did the Tribunal fail to do so. Answer, yes. Third, whether it could have made a difference if it had. Answer, no.

Although both Mr Dunasemant and his mother gave evidence before the Tribunal, the transcript of the Tribunal proceedings was not before the primary judge nor was any affidavit addressing any aspect of the Tribunal hearing on which Mr Dunasemant wished to rely in his review application. The primary judge noted that as a consequence (at [35]):

..there was nothing before the Court to indicate that any evidence on the subject was adduced at the hearing or that any reference was made in submissions to the representation concerning the effect of non-revocation on Ms Dunasemant. It is not open to the Court to speculate on the matter but the Court may infer that no such evidence was adduced and no such reference was made.

In the present case, regardless of the weight the Tribunal attached to the primary considerations of the protection and expectations of the Australian community, it is fanciful to think that the outcome could have been any different if (approaching the matter fairly and reasonably with an open mind) the Tribunal had considered the effect of non-revocation on Ms Dunasemant. In the absence of any material which would have enabled the Tribunal to make a finding on the nature and extent of the effect, the Tribunal’s error was “so insignificant that [its] failure to take it into account could not have materially affected its decision” (Hossain [v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123] at [30]). That conclusion is only reinforced if the Tribunal’s opinions on the weight to be attached to the protection and expectations of the Australian community are taken into account. Put another way, having regard to the paucity of evidence on the subject, Mr Dunasemant has not discharged his onus of proof. The oversight on the part of the Tribunal did not “rise to the level of jurisdictional error” (Hossain at [37]).

Issue:-

a) did the primary judge err in concluding that the Tribunal did not commit a jurisdictional error in failing to have regard to the effect of non-revocation on Mr Dunasemant’s mother under cl 14.2(1)(b) of the Direction?

Consideration:-

The primary judge’s approach was to first identify what it was that the Tribunal overlooked before moving to consider whether it was material.

The primary judge found (at [64]) that:

...the only evidence said to touch upon the effect of non-revocation on Ms Dunasemant were the last two sentences of her statement: “I am not getting any younger. I would be blessed to keep my son close to me.”

The primary judge dismissed this evidence as merely a statement of the obvious and raising more questions than it answered.

The primary judge concluded that Mr Dunasemant’s representations concerning the effect of non-revocation were no more than bare assertions unsupported by any probative material.

The primary judge’s conclusion is not borne out by a review of the material that was before the Tribunal. The material that touched on the critical issue was not limited to the last two sentences of Ms Dunasemant’s statement.

The relevant material before the Tribunal included the following documents: Mr Dunasemant’s Personal Circumstances Form (PCF), Mr Dunasemant’s Request for Revocation (RFR), Mr Dunasemant’s Statement of Facts, Issues, and Contentions (SFIC) and the Minister’s SFIC. Each of these documents formed part of the material before the Tribunal, as required by s 500(6F)(c) of the Act.

In his PCF, Mr Dunasemant included his mother’s details in the list of his family members. In answer to the question which asked for a description of the impact that cancellation would have, or has had, on his family, Mr Dunasemant said:

"It is distressing to my family because the strength of my family ties to Australia and the fact that we are all close and they would all be emotionally distraught by my removal."

In his RFR, Mr Dunasemant expressly contended that other consideration (b), being the strength, nature and duration of his ties to Australia, weighed strongly in favour of revocation, partly because of the effect non-revocation would have on the his immediate family in Australia (including his mother).

Mr Dunasemant’s SFIC included the following:

Primary Consideration 3 – Expectations of the Australian Community

52. The Applicant accepts that the Tribunal is required to approach it’s consideration of this primary consideration in the way endorsed by Charlesworth J in FYBR v Minister for Home Affairs [2019] FCAFC 185. That is, Direction 79 deems that the Australian community would expect the Applicant to forego the privilege of residing in Australia, but that it is for the Tribunal, in accordance with the principles prescribed by paragraph 6.3 of the Direction, to determine how much weight should be given to that expectation.

53. The Applicant submits that having regard to paragraphs 6.3(5) and 6.3(7) of Direction 79 and:

...
d) the consequences of non-revocation for the Applicant’s other immediate family members (as discussed below),

minimal weight should be placed on this primary consideration in determining whether to revoke the mandatory cancellation of the Applicant’s visa.

Mr Dunasemant went on to expressly submit in his SFIC that his mother would be significantly adversely impacted by a non-revocation decision.

56. In relation to the matters prescribed by s 14.1(b) of the Direction, we submit that the Applicant has extremely strong social and family links to Australian citizen [sic] and permanent residents, including:

a) having resided in Australia for over 18 years;

b) having all of his immediate family (children, mother and brother) live in Australia;

c) having worked in Australia for most of the period between 2002 and 2016.

57. Further, we submit that the following members of the Applicant’s immediate family in Australia would be significantly adversely effected [sic] by a

non-revocation decision:

a) the Applicant’s mother, Maria Dunasemant;

b) the Applicant’s brother, Neco Dunasemant; and

c) the Applicant’s ex-partner, Cara Dwyer.

58. In the premises, we submit that this consideration weighs heavily in favour of revocation.

In the Minister’s SFIC, under the heading “Other considerations”, subheading “Strength, nature and duration of ties”, the Minister said:-

50. Separately from the minor aged children discussed above, the applicant has a family network in Australia including his mother, brother and other distant relatives (T31/128). Whilst it is acknowledged that these family members may suffer some emotional hardship if the applicant were to remain in New Zealand, there is no evidence that these family members are supported by the applicant ...

This portion of the Minister’s SFIC was extracted by the primary judge at [37]. The primary judge observed that it is difficult to see how the Tribunal could have fallen into jurisdictional error by failing to consider a “mere possibility” of emotional hardship (at [39]).

The Minister’s SFIC however continues:

51. Overall, the Minister accepts that this consideration weighs in favour of the applicant, however contends that it does not outweigh the protection of the Australian community or the expectations of the Australian community.
The Minister accepted that other consideration (b) – strength, nature and duration of ties – weighed in favour of Mr Dunasemant. Read in context, as a response to Mr Dunasemant’s SFIC, and in combination, [50] - [51] of the Minister’s SFIC support Mr Dunasemant’s submission on the appeal that the Minister had conceded that Ms Dunasemant as a family member would be impacted by non-revocation. While the Minister did not concede anything as to the nature or extent of such hardship, the Minister’s concession was not limited to a “mere possibility” of emotional hardship.

Against this background we return to Ms Dunasemant’s statement. The primary judge’s reading of the final two sentences of Ms Dunasemant’s statement did not adequately take into account the full context provided by what is said earlier in the statement. The statement comprises two pages. The following parts of the statement are important in contextualising the final two sentences “I am not getting any younger. I would be blessed to keep my son close to me.”

...I have always been the sole parent of all my children. I Have had no family support in raising my sons on my own. Luke has experienced domestic violence from the womb until age 12 years old. I have always been there for my son, doing my best in the most difficult times.

...

My son Pursued and relationship with Cara Dwyer, they then have 3 children together. Luke and Cara split up but remained on good terms for their children. I have 3 beautiful grandchildren, [T], [A] and [N]. [N] was born with abnormalities of her respiratory system. She has been hospitalized more then 21 times in her short 5 years. Luke has a loving and devoted relationship with his children and would like the opportunity to continue to co -parent with his children in Australia. His children need their father to be present in their lives.

...

Luke has no family support or any form of support if he returns to New Zealand.

Please I pledge that my son will be a valued member of society here in Australia. I ask in gods name that you take all matters into consideration. He has made a mistake, and his family deserve to have their father present. I am not getting any younger. I would appreciate and be blessed to keep my son close to me.
[As written]

Ms Dunasemant says that she is the sole parent to all of her children and that she has always been there for her son. She refers to her grandchildren fondly. She notes that she is employed. She works as a community support worker. It is in that context that she says that she is “not getting any younger” and that she would “be blessed to keep her son close” to her in Australia. Read in context, it is implicit in the final two sentences of Ms Dunasemant’s statement that she is concerned that if Mr Dunasemant is removed, the needs of his three children, including those of the child with chronic health issues, would fall, at least in part, to her. The final two sentences of Ms Dunasemant’s statement are directed to the emotional and practical consequences she would experience if her son is removed.

In concluding that the material in relation to the impact of non-revocation on Ms Dunasemant did not rise above bare assertion, the primary judge also relied on the Jones v Dunkel inference that any evidence that Ms Dunasemant could give would not have assisted her son. The primary judge drew that inference based on the absence of a reference by the Tribunal to Ms Dunasemant being asked a question on the effect her son’s removal would have on her whereas the Tribunal did refer to Ms Dunasemant being asked about the effect on her grandchildren.

The absence of such a reference by the Tribunal might more readily be explained as another manifestation of the Tribunal overlooking, in its entirety, the whole topic of the impact of non-revocation on Ms Dunasemant, notwithstanding that it was a topic which the Tribunal was required to consider given that it was relevant and was the subject of representations made by Mr Dunasemant. The Tribunal’s reference to Ms Dunasemant being asked a question about the impact on her grandchildren was in the context of the Tribunal expressly considering the best interests of minor children in Australia as a primary consideration under the Direction and one to which the Tribunal attached moderate weight.

Even if the inference drawn by the primary judge was available on the information to which the primary judge had regard, it cannot safely stand when the final two sentences of Ms Dunasemant’s statement are read in the context of the statement as a whole.

The representations that were made and the material that was before the Tribunal, including the statement of Ms Dunasemant, required the Tribunal to make a finding on the nature and extent of the hardship claim. The Tribunal’s error was to completely overlook the issue of the hardship to Mr Dunasemant’s mother.

It follows that in determining the weight to be given to primary consideration (c), the Tribunal did not take into account a factor that it was obliged to weigh in the balance, a representation having been made on the point that was clearly articulated and supported by material that was before the Tribunal. The primary judge concluded that the Tribunal’s error was not material when regard was had to the Tribunal’s opinion on the weight to be attached to the protection and expectations of the Australian community ([68]) but did not grapple with the submission that if the hardship claim in respect of Ms Dunasemant had been considered in the context of primary consideration (c), the Tribunal could have given this primary consideration less weight in its assessment of factors against revocation.

As for primary consideration (c), so too for other consideration (b), in overlooking the issue entirely, the Tribunal failed to consider a representation that had been clearly articulated and which was supported by material that was before the Tribunal. If the hardship claim in respect of Ms Dunasemant had been considered in the context of other consideration (b), the Tribunal could have given this primary consideration even more weight in its assessment of factors in favour of revocation.

In this way, the Tribunal’s failure to consider the hardship claim was relevant to the way in which the Tribunal attributed weight to primary consideration (c) and other consideration (b) in the exercise of its function under s 501CA(4)(b)(ii) and realistically could have resulted in the Tribunal reaching a different conclusion as to whether there was another reason to revoke the cancellation decision.

Conclusion:-

For these reasons, we have concluded that the Tribunal’s error was material and that ground 1 should be allowed. In light of our conclusion on ground 1, it is not necessary to determine the leave application in respect of the new grounds of appeal or the application to adduce further evidence.

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