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Did the Tribunal overlook the Appellant’s representation or claim in respect of her two pet dogs even though Appellant’s claim did not feature in the case that the Appellant sought to make out before the Tribunal?

Pearson v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 22 (1 March 2022)

Intro:-

This is an appeal from a decision of the Federal Court of Australia (FCA): Pearson v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 825. In that decision, the primary judge dismissed with costs the Appellant’s application for judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) affirming a decision of a delegate of the First Respondent (the Minister) not to revoke the cancellation of the Appellant’s class TY subclass 444 Special Category (Temporary) visa (visa) under s 501CA(4) of the Migration Act 1958 (Cth) (Migration Act): Pearson and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 3527 (15 September 2020).

The Appellant seeks orders that the decision of the primary judge be set aside and in lieu thereof, an order be made that the decision of the Tribunal be quashed and a writ of mandamus issue requiring the Tribunal to determine her application according to law. She also seeks costs.

Facts:-

On 17 July 2019, the Appellant’s visa was cancelled under s 501(3A) of the Migration Act (cancellation decision). The Minister was satisfied, on the basis of a National Criminal History check released on 27 March 2019, that the Appellant did not pass the character test because she had a substantial criminal record within the meaning of s 501(6)(a) on the basis of s 501(7)(c) of the Migration Act and was serving a sentence of full-time imprisonment.

The Appellant made representations, and by letter dated 24 June 2020 was notified that a delegate of the Minister had determined not to revoke the cancellation decision (non-revocation decision). The delegate was not satisfied that the Appellant passed the character test, and was not satisfied that there was another reason why the original decision should be revoked.

The Appellant lodged an appeal with the Tribunal on 2 July 2020. On 15 September 2020, the Tribunal affirmed the non-revocation decision.

The Appellant’s application to the FCA for judicial review was accepted for filing on 22 October 2020. The hearing proceeded on 17 March 2021. The application was dismissed by orders made on 22 July 2021 (FCA Decision).

The Appellant filed her notice of appeal from the decision of the primary judge on 19 August 2021. It proceeded to hearing before this Court on 10 February 2022.

The Tribunal's Decision

The Appellant sought before the Tribunal a review of the non-revocation decision.

Before the Tribunal, the central issue was whether it was satisfied as required by s 501CA(4)(b) of the Migration Act: namely, whether there is another reason the decision to cancel the visa should be revoked. As the Appellant had been sentenced to a term of imprisonment of four years and two months, it was not in dispute that she does not meet the character test.

The Tribunal considered the criteria in Direction No. 79 Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Direction No. 79) as required by s 499 of the Migration Act. Having undertaken that exercise, the Tribunal affirmed the non-revocation decision and concluded:-

131. Two of the Primary Considerations; the protection of the community and the expectations of the community weigh against revoking the cancellation of Ms Pearson’s visa, with the expectation of the community weighing heavily against revoking the cancellation of the visa.

132. The best interests of the child weigh slightly in favour of revoking the cancellation of her visa.

133. Of the Other Considerations, Ms Pearson’s ties to Australia and the impediments to her returning to New Zealand weigh slightly in favour of revoking the cancellation.

134. Primary Considerations are generally to be given greater weight than the Other Considerations, and the Tribunal sees no reason to depart from this in the circumstances of this case. As a result, the Tribal [sic] affirms the decision not to revoke the cancellation of Ms Pearson’s visa.

The Primary Judge's decision

By an amended notice of appeal, accepted for filing at the commencement of the hearing, the Appellant’s ground of appeal is in the following terms:-

1. The learned primary judge erred in finding that the Tribunal’s failure to consider an express representation or claim made by the appellant in respect of her two pet dogs was not material to the decision.

Particulars

(a) The Tribunal failed to consider an express representation or claim made by the appellant and supported by probative evidence, being her claim in respect of her separation from her two pet dogs.

(b) The Honourable Markovic J accepted that the Tribunal failed to consider the relevant claim or representation but ought to have found that the Tribunal’s failure was material and amounted to jurisdictional error.

In considering that ground, the primary judge summarised the Appellant’s core contention:-

85. By this ground Ms Pearson contends that the Tribunal failed to consider an express representation or claim she had made which was supported by probative evidence. That is, that separation from her two pet dogs, Oscar and Walter, was another consideration to be taken into account in the decision whether to revoke the Cancellation Decision.

The primary judge then considered the parties’ submissions. The primary judge noted that the Appellant’s contention was that the evidence before the Tribunal was “replete with references to the two dogs”, and “by their omission from the Tribunal’s decision record, there is no meaningful consideration, let alone any active intellectual engagement by it, with respect to Oscar and Walter”: [87]. The primary judge also identified the Appellant’s alternative submission that “it ought to be inferred from the Tribunal’s failure to refer to evidence about Oscar and Walter in its reasons for decision that it failed to consider that material”.

In summarising the Minister’s position, the primary judge identified the key submission as being that “there is no necessary inference that Ms Pearson’s evidence about her dogs was overlooked by the Tribunal, as opposed to regarded as of little significance”, and, in the alternative, “even if the Tribunal had overlooked that evidence, it was insignificant and not material to the Tribunal’s decision”.

The primary judge then observed:-

"The first issue that arises is whether the Tribunal in fact overlooked the evidence concerning the two dogs, as Ms Pearson contends, or whether an inference can be drawn that the Tribunal took the material into account but considered that the claim was not sufficiently significant to require the Tribunal to refer to it expressly."

The primary judge set out the relevant principles at [93]–[95]. Her Honour acknowledged the concession by the Appellant that she did not make an express claim or submission before the Tribunal as regards her being separated from her two dogs, and turned to the question of whether representations made by the Appellant “were sufficiently significant or relevant to require the Tribunal to expressly consider them as part of its consideration of the impediments to Ms Pearson’s removal or whether the inference urged by the Minister can be drawn”: [97]. The primary judge then reasoned as follows:-

"I am satisfied that the impact of separation from Walter and Oscar was a sufficiently clearly articulated claim. As I have already observed, and as demonstrated by the matters set out at [97] above, the fact of ownership of the two dogs, that she considered them her family and that she would be upset by her separation from them were referred to in parts of the evidence that was before the Tribunal. The material was not vague or fleeting. The same matters, namely Ms Pearson’s connection to her two dogs and the impact of removal from them, was raised by a number of different witnesses who had observed Ms Pearson as well as, significantly, in Ms North’s report and Ms Pearson’s own statement. The question of separation from Oscar and Walter went to the issue of impediments to removal from Australia and whether there was another reason to revoke the Cancellation Decision. The Tribunal ought to have both considered and addressed that claim. It may have been open for the Tribunal to find that Ms Pearson could have arranged to have the dogs transported to New Zealand but that was a matter about which the Tribunal should have made a finding by reference to the available evidence.

I would not infer that the Tribunal considered the material and took it into account but formed the view that it lacked sufficient significance or relevance such that it was not required to refer to it in its reasons. Rather, the fact that the representations, which were both sufficiently significant in the context of all of the representations made in support of revocation and made with sufficient clarity, were not referred to and addressed in the Tribunal’s decision record at all leads me to draw the contrary inference. That is, that the Tribunal did not consider the material. Unlike its consideration of risk to the Australian community (see [75]-[83] above), the Tribunal did not refer to the claim about the two dogs at all in its reasons, as distinct from merely omitting reference to specific material relating to that claim. No inference of the kind drawn in relation to ground 3 can be drawn here."

Having concluded that the Tribunal did not consider the Appellant’s claims as regards her two dogs, the primary judge then addressed the question of materiality, namely whether the failure by the Tribunal to consider the claim about her two dogs was material to its decision not to revoke the cancellation decision. Her Honour summarised the Appellant’s contention in this regard as being that:-

" ... her relationship with her dogs was not of marginal consideration: it was a claim properly made in her representations to the Department; was treated as an impediment to her return by the delegate; and is on par with the inability to transport her computer equipment and her relationship with Mr Farrow and her friends as a matter to be taken into account and which could affect the outcome."

In her consideration of materiality, the primary judge relied on MZAPC v Minister for Immigration and Border Protection (2021) 95 ALJR 441; [2021] HCA 17 (MZAPC) at [102]–[103] (Kiefel CJ, Gageler, Keane and Gleeson JJ). Her Honour correctly understood that she was required to resolve the factual hypothetical; in this case whether the failure of the Tribunal to consider the issue deprived the Appellant of the “realistic possibility that the decision in fact made could have been different had the breach of the condition not occurred”: MZAPC at [2].

In applying those principles, the primary judge reasoned at [104]–[105] that the claimed impediments to removal were considered by the Tribunal as weighing slightly in favour of revoking the cancellation decision, and in that context the matters expressly relied upon were “of much higher priority” than the relationship of the Appellant with her two dogs. This led her Honour to conclude at [106] that the Appellant had failed to establish “on the balance of probabilities that a different conclusion could have been reached in relation to the impediments to removal”. Accordingly, the primary judge held that the failure of the Tribunal to mention the impact of separation from her two dogs was not a material error.

Appellant's Submissions

The Appellant submits that the primary judge considered the totality of her representations before the Tribunal, accepted that the Appellant had a close bond with her two dogs and correctly held that the impact on her of separation from her two dogs was a sufficiently clearly articulated claim.

As regards the Minister’s notice of contention and in the course of oral submissions, Counsel for the Appellant, Ms Zhou, did not dispute the general proposition that “a Tribunal does not need to specifically mention every item of evidence or every submission put to it”: see Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593; [2003] FCAFC 184 (Applicant WAEE) at [46]; Minister for Home Affairs v Buadromo (2018) 267 FCR 320; [2018] FCAFC 151 at [48]–[49]. However, Counsel for the Appellant submitted that the Minister’s contention should be rejected on the basis that “[t]he complete absence of any reasoning at all ... from the Tribunal about a matter that was clearly articulated leads more logically and more probably to the inference that it was not considered.”

On the ground of appeal, the Appellant submitted that the primary judge erred in not resolving the materiality question in her favour, emphasising in particular that the materiality test sets a “low bar” by reference to DMQ18 v Minister for Home Affairs (2020) 278 FCR 529; [2020] FCAFC 110 at [113]–[114]. The gravamen of the Appellant’s submission was that her representations made to the Minister, as in evidence before the Tribunal, were not of marginal significance and were directly relevant to the extent of impediments she may suffer in the event of removal. As the Tribunal gave no consideration to the relationship between the Appellant and her two dogs together with the claimed impact upon her mental health that would result from separation, the Appellant contended that the primary judge wrongly concluded that she had not been deprived of a realistic possibility of a different outcome.

Minister’s Submissions

In the Minister’s written outline dated 3 February 2022, Counsel for the Minister, Mr Reilly, submitted that “her Honour’s conclusion that the Tribunal has entirely overlooked the Appellant’s claim about her dogs is not the more likely inference” and continued:

23. ... As submitted to her Honour by the Minister, it is not apparent that the appellant could not arrange to have her dogs sent to New Zealand if she wished: Ms North’s report only reported the appellant as saying that this was “unlikely...due to financial constraints”, but this is speculative in the absence of the cost being identified. Given the appellant was already separated from her dogs due to being in prison (and subsequently immigration detention) since 12 October 2018, and did not rely on separation from them in her detailed submissions to the Tribunal, it is understandable that the Tribunal does not expressly mention them. There is no necessary inference that her evidence about her dogs has been overlooked by the Tribunal, as opposed to regarded as of little significance. The Tribunal did not need to specifically mention every item of evidence or every submission put to it, or provide a “line by line” refutation of the appellant’s claims: see MHA v Buadromo (2018) 267 FCR 320 at [48-49]; Navoto v MHA [2019] FCAFC 135 at [88].

On the question of materiality, the Minister in substance adopted the reasoning of the primary judge.

Issues:-

Accordingly, before the Court for consideration is:

(1) the Appellant’s notice of appeal challenging the finding of the primary judge that the failure of the Tribunal to consider the Appellant’s claim regarding her separation from her two dogs was not material to the Tribunal’s decision to not revoke the cancellation decision; and

(2) the Minister’s notice of contention that the decision of the primary judge should be affirmed but on grounds other than those relied on by the primary judge, namely that the Tribunal did not overlook the Appellant’s representation or claim regarding her separation from her two dogs.

In circumstances where the acceptance by the Court of the Minister’s contention would dispose of the need to make a finding as to the question of materiality, it is convenient to first deal with that issue.

Consideration:-

In support of the notice of contention, Mr Reilly for the Minister in oral argument correctly observed that the Appellant was legally represented before the Tribunal and framed her case in accordance with a detailed Statement of Facts, Issues and Contentions dated 26 August 2020 (the Appellant’s SFIC). The Appellant’s SFIC did not mention her relationship with her dogs and did not assert any psychological impact that may occur as the result of separation from her dogs. Nor were any claims to that effect advanced in oral submissions before the Tribunal. In short compass, Mr Reilly submitted that:-

"[t]he preferable inference, we say, is that it was simply such a minor matter by the time the matter had been argued before the Tribunal that the preferable inference is just the Tribunal didn’t think it necessary to specifically mention it."

Importantly, counsel for the Minister in oral argument confirmed that the notice of contention did not go so far as to assert that there was no jurisdictional error by the Tribunal in not referring to a matter that was not agitated before it.

As we have noted, there was before the Tribunal, in the representations of the Appellant, material relevant to the psychological and emotional impact of separation from her two dogs. In its decision, the Tribunal carefully considered each contention put to it on behalf of the Appellant when addressing the “other considerations” set out in clause 14(1) of Direction No. 79 and which the primary judge summarised at [22]–[26] of her reasons. Specifically, the Tribunal, in considering the extent of impediments if removed, did not accept the Appellant’s contention that separation from her friends and her partner would significantly and adversely impact on her mental health. The Tribunal reasoned that mental health services and welfare support are available in New Zealand and that overall, the Appellant “has some impediments to re-establishing herself in New Zealand, however these are not insurmountable, and this factor weighs slightly in favour of revoking the cancellation of her visa”: [130].

The content of any statutory obligation to give reasons for a decision is relevant to the question of what, if any, inferences may be drawn from a decision-maker’s statement of reasons vis a vis the apparent absence of any reference to, or findings on, particular claims or evidence. Where reasons are given in writing, s 43 of the Administrative Appeals Tribunal Act 1975 (Cth) (which applied in this case) imposes an obligation on the Tribunal, to “include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based.” An obligation in such terms has been held to require that the Tribunal set out the findings of fact which it subjectively considers to be material: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 (Yusuf) at [68] (by analogy). The consequence is that this Court on judicial review is entitled to take the reasons of the Tribunal as setting out the findings on each matter which it considered material to its decision and is entitled to “infer that any matter not mentioned [in the statement of reasons] was not considered by the Tribunal to be material” : Yusuf at [69]. Similarly, Gleeson CJ in Yusuf at [5] explained that:-

"When the Tribunal prepares a written statement of its reasons for decision in a given case, that statement will have been prepared by the Tribunal, and will be understood by a reader, including a judge reviewing the Tribunal’s decision, in the light of the statutory requirements contained in s 430 [of the Migration Act]. The Tribunal is required, in setting out its reasons for decision, to set out “the findings on any material questions of fact”. If it does not set out a finding on some question of fact, that will indicate that it made no finding on that matter, and that in turn, may indicate that the Tribunal did not consider the matter to be material."

(Emphasis added.)

See also e.g. ETA067 v Republic of Nauru (2018) 92 ALJR 1003; [2018] HCA 46 at [13] (Bell, Keane and Gordon JJ).

Conversely as Gleeson CJ also held at [10], by setting out its findings, and thereby exposing its views on materiality, the Tribunal’s reasons may disclose (relevantly) a jurisdictional error.

Furthermore, in Applicant WAEE, the Full Court of this Court (French, Sackville and Hely JJ) in two oft cited passages at [46]–[47], explained (in the context of a decision by the then Refugee Review Tribunal to affirm a decision refusing the grant of a protection visa to the appellant):-

"It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [87]- [97]) and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The Tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised “with an eye keenly attuned to error”. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.

The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked".

Thus, while s 501CA of the Migration Act imposes an obligation upon the Minister, and the Tribunal on review, to consider an applicant’s representation, it does not follow that every statement contained therein is of itself a mandatory consideration with the consequence that a failure to consider some aspect of the representations amounts to jurisdictional error: Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531; [2018] FCAFC 116 at [67]–[69]; EVK18 v Minister for Home Affairs (2020) 274 FCR 598; [2020] FCAFC 49 at [10] and Minister for Home Affairs v Omar (2019) 272 FCR 589; [2019] FCAFC 188 at [34]–[36].

In this case, we are not persuaded that the Appellant discharged her onus of establishing on the balance of probabilities that the Tribunal overlooked a material representation advanced by the Appellant.

In her Honour’s reasons addressing ground 4 of the judicial review application, the primary judge at [95] correctly stated that:-

"The question of whether a claim amounts to a “clearly articulated and substantial or significant representation” so as to give rise to an obligation on the Tribunal to consider and address it has been described as a “fact sensitive inquiry”: Kwatra v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 58 at [34].

In this regard, we agree with the primary judge that the separation impact issue was a sufficiently clearly articulated claim to require the Tribunal to consider it, given the representation made by the Appellant to the Minister pursuant to s 501CA(3)(b) of the Migration Act which was therefore also before the Tribunal."

However, with respect, contrary to her Honour, in our view there was no reason why the Yusuf inference should not be drawn, given the way in which the Appellant presented her case before the Tribunal. In our view, the primary judge at [98]–[99] erred in placing too much emphasis upon the content of the relevant representation, when the correct approach in this case required careful attention to the case that the Appellant sought to make to the Tribunal. Significantly, the Appellant’s legal practitioner, in formulating her SFIC before the Tribunal, comprehensively addressed each of the impediments the Appellant contended she would or may suffer if removed at paragraphs [65]–[67] and listed a number of miscellaneous considerations at paragraph [68] but made no contention that the impact of separation from the Appellant’s dogs was at all relevant. Nor did the Appellant adduce any evidence before the Tribunal as to the costs of relocating the dogs to New Zealand and her inability to meet such cost. Viewed in that context, we are not satisfied that the Appellant established that the Tribunal’s failure to mention her claims about her relationship with her dogs and the mental health impacts for her if she was returned to New Zealand and separated from them should have founded the inference that the Tribunal failed to consider these claims.

Conclusion:-

For these reasons, we uphold the Minister’s notice of contention and dismiss the appeal.

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