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Did the Tribunal err in failing to consider the evidence of the expert concerning the effect on the appellant’s young children of refusing to grant the visa?

Khalil v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 26 (3 March 2022)

Intro:-

Mohamed Khalil is aggrieved by a decision of the Administrative Appeals Tribunal affirming a decision of the Minister to refuse to grant him a Partner (Temporary) (Class UK) visa (partner visa) on character grounds. He applied to this Court for judicial review but the primary judge dismissed his application. This is an appeal from that judgment.

Facts:-

On 9 November 2017, a delegate of the Minister refused to grant Mr Khalil a partner visa because the delegate was satisfied that Mr Khalil had a “substantial criminal record” and did not pass the character test for the purposes of ss 501(6)(a) and (7)(c) of the Migration Act 1958 (Cth) (the Act). That decision was affirmed by the Tribunal on review. Mr Khalil applied for judicial review of the Tribunal’s decision. That application was dismissed but, following an appeal to the Full Court, the Tribunal’s decision was quashed: Khalil v Minister for Home Affairs [2019] FCAFC 151; (2019) 271 FCR 326 (Logan, Steward and Jackson JJ) (Khalil (No 1)).

On remittal, a differently constituted Tribunal again affirmed the delegate’s decision to refuse to grant Mr Khalil a partner visa: Khalil and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 4592. Before this Tribunal Mr Khalil relied on additional documents, including a report of a clinical psychologist, Dr Indira Pattni, which included opinions on his risk of reoffending and the best interests of his children.

The legal framework

Section 501(1) confers a discretionary power on the Minister to refuse to grant a visa to a person if the person does not satisfy the Minister that they pass the character test. Section 501(6) relevantly provides that a person does not pass the character test if that person has a “substantial criminal record”. That term is relevantly defined in subs (7)(c) to mean a person who has been “sentenced to a term of imprisonment of 12 months or more”.

Section 499(1) of the Act provides that the Minister may give written directions to a person or body having functions or powers under the Act if the directions are about the exercise of those functions and powers. Section 499(2A) relevantly imposes an obligation on a person or body to comply with a direction made under s 499(1). At the time of the Tribunal’s decision, the relevant Ministerial direction was Direction No 79, entitled “Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA” (Direction 79).

Clause 8(1) of Direction 79 requires decision makers to “take into account the primary and other considerations relevant to the individual case”. The relevant primary considerations are contained in cl 11 and comprise the “protection of the Australian community from criminal or other serious conduct”, the “best interests of minor children in Australia”, and the “expectations of the Australian community”. The relevant “other considerations” are contained in cl 12. These include international non-refoulement obligations and the impact on family members, victims, and Australian business interests.

Clause 8(2) contains guidance on the weight to be afforded to certain evidence when applying these considerations. It states:-

(2) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.

In considering the “protection of the Australian community”, cl 11.1(1)(b) provides that a decision maker should take into account the “risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct”. Clause 11.1.2(3) sets out the relevant matters that must be taken into account when assessing this risk. It states:-

(3) In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:
a) The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and

b) The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
information and evidence from independent and authoritative sources on the likelihood of the non-citizen re-offending; and
evidence of any rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken); and
the duration of the intended stay in Australia.

In assessing the “best interests of the child”, cl 11.2(4) requires the decision maker to consider the following factors where relevant:-

a) The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);

b) The extent to which the non-citizen is likely to play a positive parental role in the future (taking into account the length of time until the child turns 18), and including any Court orders relating to parental access and care arrangements;

c) The impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have, a negative impact on the child;

d) The likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;

e) Whether there are other persons who already fulfil a parental role in relation to the child;

f) Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);

g) Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and

h) Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.

Applications may be made to the Tribunal for review of a decision made under s 501: s 500(1)(b). Pursuant to ss 25 and 43 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act), the Tribunal must “stand in the shoes” of the Minister and determine for itself the decision that should be made on the evidence before it, exercising the relevant powers and discretions conferred on the Minister: Frugtniet v Australian Securities and Investments Commission [2019] HCA 16; (2019) 266 CLR 250 at [51] (Kiefel CJ, Keane and Nettle JJ).

The Tribunal is not bound by the rules of evidence but may inform itself of any matter as it thinks appropriate (AAT Act, s 33(1)(c)). The Tribunal is required to give oral or written reasons for its decision, and if it gives written reasons it must “include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based” (AAT Act, ss 43(2) and (2B)).

A decision of the Tribunal concerning a matter of this nature is a privative or purported privative clause decision of the Tribunal within the meaning of s 474 of the Act. As the Full Court explained in Khalil (No 1) at [43]:-

"The jurisdiction of the Federal Court to review decisions of the Tribunal in the present context is limited to jurisdictional error: Migration Act s 476A(2). Not every error of law is a jurisdictional error: see the recent analysis in Tsvetnenko v United States of America [2019] FCAFC 74; (2019) 367 ALR 465 at [33]‑[40]. In a statutory decision making process, jurisdictional error is a failure to comply with one or more statutory preconditions or conditions to an extent which results in a decision which has been made in fact lacking characteristics necessary for it to be given force and effect by the statute pursuant to which the decision maker purported to make it: Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 359 ALR 1 at [24] (Kiefel CJ, Gageler and Keane JJ). “The question is always one of construction of the legislation: which breaches of a provision does the legislation, either expressly or, more commonly, impliedly, treat as depriving the decision maker of power?”: Hossain at [67] (Edelman J, Nettle J agreeing).

Furthermore, an error will not be jurisdictional unless it could realistically have led to a different outcome, a matter upon which the applicant bears the onus: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 at [4], [45] (Bell, Gageler and Keane JJ).

The Tribunal’s decision

Having found that Mr Khalil did not pass the character test on account of his “substantial criminal record”, the only issue before the Tribunal was whether to exercise the discretion in s 501(1) to refuse to grant the visa, having regard to the primary and other considerations in Direction 79.

In considering the “protection of the Australian community”, the Tribunal reviewed Mr Khalil’s criminal history and considered that his drug and domestic violence offences were serious and that any repetition of these offences would result in serious harm. It then considered whether there was a risk that Mr Khalil would reoffend in the future.

The Tribunal concluded that the “protection of the Australian community” weighed heavily in favour of exercising the discretion to refuse to grant the visa.

The Tribunal found that the “best interests of the child” consideration weighed against refusing the visa, but considered that there were other factors that diminished its overall weight. The Tribunal accepted that Mr Khalil would play a “positive role in the future with his children”, but observed that, as his relationship with his wife had broken down and she had taken steps to prevent Mr Khalil from seeing the children, the exact nature of that role was uncertain. The Tribunal also observed that Mr Khalil had had limited contact with his second child, who was born 22 days before he was taken into immigration detention. In addition, the Tribunal said at [43] of its reasons:

The applicant contended that his ex-wife is at risk of Huntington’s disease and therefore of limited capability to care for the children but I give this limited weight because, despite carrying the gene, the ex-wife has not been diagnosed with Huntington’s disease and there is no expert evidence as to when she may suffer from the disease in the future.
20 Finally, the Tribunal decided that the “expectations of the Australian community” weighed strongly in favour of refusing to grant the visa. The Tribunal noted that Mr Khalil agreed that neutral weight should be afforded to the remaining factors as he had made no submissions on them. Nonetheless the Tribunal considered that refusing the visa would have a negative impact on Mr Khalil’s ex-wife and afforded this factor positive weight in favour of granting the visa.

Having weighed these various factors in the balance, the Tribunal concluded that the considerations in favour of refusing the visa outweighed those against and so affirmed the decision under review.

The Tribunal found that the “best interests of the child” consideration weighed against refusing the visa, but considered that there were other factors that diminished its overall weight. The Tribunal accepted that Mr Khalil would play a “positive role in the future with his children”, but observed that, as his relationship with his wife had broken down and she had taken steps to prevent Mr Khalil from seeing the children, the exact nature of that role was uncertain. The Tribunal also observed that Mr Khalil had had limited contact with his second child, who was born 22 days before he was taken into immigration detention. In addition, the Tribunal said at [43] of its reasons:

The applicant contended that his ex-wife is at risk of Huntington’s disease and therefore of limited capability to care for the children but I give this limited weight because, despite carrying the gene, the ex-wife has not been diagnosed with Huntington’s disease and there is no expert evidence as to when she may suffer from the disease in the future.
20 Finally, the Tribunal decided that the “expectations of the Australian community” weighed strongly in favour of refusing to grant the visa. The Tribunal noted that Mr Khalil agreed that neutral weight should be afforded to the remaining factors as he had made no submissions on them. Nonetheless the Tribunal considered that refusing the visa would have a negative impact on Mr Khalil’s ex-wife and afforded this factor positive weight in favour of granting the visa.

Having weighed these various factors in the balance, the Tribunal concluded that the considerations in favour of refusing the visa outweighed those against and so affirmed the decision under review.

The reasons of the primary judge

The primary judge did not consider that the Tribunal erred in not accepting Dr Pattni’s opinion.

His Honour held that, although it could derive assistance from Dr Pattni’s opinion, the Tribunal was not bound to uncritically accept it, even in the absence of any contradictory medical evidence (at [34]–[35]). And he did not accept that the Tribunal’s rejection of Dr Pattni’s evidence involved an illogical conclusion that Mr Khalil did not have a remote chance of reoffending. This conclusion, his Honour found, was based on a number of other matters to which the Tribunal referred in its reasons (at [37]). Those matters included Mr Khalil’s lack of insight, his attempts to downplay the seriousness of the domestic violence offence, his refusal to accept that he was guilty of intending to sell and supply drugs, his lack of remorse, and the little regard he had shown for the law as demonstrated by his criminal history.

The appeal

Mr Khalil sought leave to replace the single ground contained in the notice of appeal with two new grounds. One of the grounds, inter alia read as follows:-

The learned primary judge erred in not finding that the Tribunal’s decision is affected by jurisdictional error because the Tribunal failed to consider important or significant evidence and/or failed to consider a relevant consideration and/or constructively failed to exercise its jurisdiction.

Particulars

(a) In considering the mandatory relevant consideration “The best interests of minor children in Australia”, the Tribunal failed to consider the evidence of Dr Pattni going to that issue.

(b) In considering the mandatory relevant consideration “The best interests of minor children in Australia”, the Tribunal failed to consider the evidence relating to the children’s mother’s susceptibility to Huntington’s Disease, and the evidence relating to the children’s susceptibility to Huntington’s Disease.

Issues:-

a) should leave be granted to raise a new ground?

b) did the primary judge err in in not finding that the Tribunal failed to consider the mandatory relevant consideration "The best interest of minor children in Australia"?

Consideration:-

a) should leave be granted to raise a new ground?

The Court’s power to grant leave must be exercised in the way that best promotes the overarching purpose of the civil practice and procedure provisions of the Federal Court of Australia Act 1976 (Cth) (FCA Act) and Rules: FCA Act, s 37M. That purpose is the facilitation of “the just resolution of disputes... according to law” and “as quickly, inexpensively and efficiently as possible”. It includes objectives such as the just determination of all proceedings before the Court; the efficient use of the Court’s judicial resources; the efficient disposal of the Court’s overall caseload; and the timeous disposal of all proceedings. Dealing with a point for the first time on appeal does not serve those objectives.

Without more, the fact that there has been a change of counsel is insufficient to justify a grant of leave: see, for example, BLX16 v Minister for Immigration and Border Protection [2019] FCAFC 176 at [31] (Moshinsky, Steward and Wheelahan JJ); DKT16 v Minister for Immigration and Border Protection [2019] FCAFC 208 at [31] (Davies, Moshinsky and Snaden JJ). Even before s 37M was enacted, the Court’s position was that leave to argue a point not raised before a primary judge should only be granted “if it is expedient in the interests of justice to do so”: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; (2004) 238 FCR 588 at [46] (Kiefel, Weinberg and Stone JJ). In VUAX the Full Court observed at [48]:

The Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated. Where, however, there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused.

Requiring an appellant to show that it is expedient and in the interests of justice for an appellate court to grant leave “endeavours to strike an appropriate balance between securing the role of the court at first instance, protecting the integrity of the appellate process, and meeting the needs of justice as understood within the judicial process”: CVRZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 205 at [19] (Kenny, Davies and Banks-Smith JJ). The interests of justice include “the potential vindication of a just outcome” and the gravity of the consequences of the decision is a relevant consideration: MBJY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 11 at [2] (Allsop CJ). It is true that appeals are not intended to provide an opportunity to conduct a second trial on a different basis than the first (see the discussion in Han v Minister for Home Affairs [2019] FCA 331 at [10]–[18] per Bromwich J and the authorities referred to there). Nevertheless, the predominant consideration must be the interests of justice. In the absence of prejudice to the respondent, the more meritorious the point, the more likely it is that leave will be granted notwithstanding the other considerations which favour its refusal.

Here, contrary to the Minister’s submission, an explanation has been proffered for raising the new point. But it is far from adequate. No evidence was adduced to suggest that the point was not raised below due to incompetence, negligence or even an oversight on the part of Mr Khalil’s former counsel. For all we know, it was the product of a forensic decision. After all, over the Minister’s submission to the contrary, the Tribunal found that Mr Khalil would play a positive role in his children’s lives and decided that it was in the best interests of the children that the discretion to grant the visa be exercised in his favour. On the other hand, for the reasons set out below, we are persuaded that the point is not of doubtful merit and, in the absence of any prejudice to the Minister, we consider it to be in the interests of justice to grant Mr Khalil leave to raise it.

b) Did the Tribunal fall into jurisdictional error by failing to consider Dr Pattni’s opinion concerning the effect of visa refusal on the children?

Mr Khalil submitted that the Tribunal failed to have regard to the evidence in Dr Pattni’s report concerning the risk of behavioural or emotional disorders in children where the father is incarcerated; the risks to the children in the present case owing to their mother’s medical condition; the risks posed by the absence of support from the extended family; the “unanimous research findings” about the internalisation of “at risk” behaviours where a mother is critically unwell and the father absent; and the “mental health burden and unfavourable consequences” of Mr Khalil’s deportation on the children.

The obligation of the Tribunal imposed by s 43(2B) of the AAT Act is to set out its findings on questions of fact it considers material, together with the evidence and other material on which those findings are based. That means that a court is generally entitled to infer that any matter not mentioned in the reasons “was not considered by the Tribunal to be material” to its review: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at 346 (McHugh, Gummow and Hayne JJ). In Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16; 309 ALR 67; 309 ALD 67 (Katzmann, Griffiths and Wigney JJ) at [34] the Full Court observed that:-

"The fact that a matter is not referred to in the tribunal’s reasons, however, does not necessarily mean the matter was not considered by the tribunal at all: [Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594] at [31]. The tribunal may have considered the matter but found it not to be material. Likewise, the fact that particular evidence is not referred to in the tribunal’s reasons does not necessarily mean that the material was overlooked. The tribunal may have considered it but given it no weight and therefore not relied on it in arriving at its findings of material fact. But where a particular matter, or particular evidence, is not referred to in the tribunal’s reasons, the findings and evidence that the tribunal has set out in its reasons may be used as a basis for inferring that the matter or evidence in question was not considered at all. The issue is whether the particular matter or evidence that has been omitted from the reasons can be sensibly understood as a matter considered, but not mentioned because it was not material. In some cases, having regard to the nature of the applicant’s claims and the findings and evidence set out in the reasons, it may be readily inferred that if the matter or evidence had been considered at all, it would have been referred to in the reasons, even if it were then rejected or given little or no weight: [Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114] at [52]."

With respect to the first aspect, the subject of particular (a), three preliminary observations should be made.

First, the Tribunal did say in its reasons that it had taken Dr Pattni’s report into account (at [38]). Second, the Tribunal also concluded at [53] that “[n]ot having their father present in their lives will have a negative impact on the children”. Third, Dr Pattni did not take into account a number of matters mentioned by the Tribunal in its reasons, such as the older child having been present at the scene of Mr Khalil’s assault on his mother, the breakdown of Mr Khalil’s second marriage or the mother’s attempt to prevent Mr Khalil having access to the children (presumably because she was not told about them).

Read in context, however, the first statement related to Dr Pattni’s evidence touching on the risk of reoffending. The conclusion that the absence of Mr Khalil would have a negative impact on the children was made without reference to Dr Pattni’s opinion and there is nothing in the reasons to indicate that the Tribunal had regard to that opinion in reaching that conclusion. Finally, the matters mentioned by the Tribunal might well affect the weight the Tribunal might attach to Dr Pattni’s opinion, but they tell us nothing about whether the Tribunal considered the opinion at all.

Having regard to the nature of Mr Khalil’s claims and the findings and evidence set out in the Tribunal’s reasons, it can be readily inferred that, if Dr Pattni’s evidence on this subject had been considered, the Tribunal would have addressed it in its reasons, even if it were then to be rejected or given little or no weight. If consideration had been given to that evidence, at the very least one would expect a reference to her report in this context. After all, the report dealt with her opinion on two subjects, both primary considerations. Yet the Tribunal only adverted to her opinion on one of them. Even on a beneficial interpretation of the Tribunal’s decision read as a whole, the compelling inference is that the Tribunal overlooked the evidence.

The more difficult question is whether the failure to consider the evidence amounted to a jurisdictional error.

Dr Pattni’s opinion was to the following effect. It is well established that behavioural or emotional disorders in children are associated with “paternal incarceration” and the children are at greater risk if their father were to be deported (the likely outcome of refusing a visa on character grounds). The situation would become worse if their mother’s health deteriorated. There is little other family support having regard to the ill-health of the maternal grandmother and the fact that Mr Khalil’s family lives in Egypt. Dr Pattni went on to say:-

- There is an undisputed understanding in the research of child development that any trauma – especially separation anxiety and absence of critical parental figure puts the children at added risk of developmental problems.

- Given the complexity of the situation (noted above), these young boys are already predisposed to a wide array of risk factors for problem behaviours that emerges from the literature of several factual circumstances that can have an undisputed impact on their future development and in particular their mental health wellbeing.

- There are unanimous research findings that can support the internationalization of behavioural problems (at risk behaviours – such as aggressive and rule-breaking behaviour) with mothers who may be critically unwell and with the absence of the father.

- Undisputed evidence children in studies on deportation of the father highlight the associated mental health burden and the unfavourable consequences related to their children. Both the long term and short-term impact on mental health, social and economic has been established.

- The future of these children is of critical concern given the mother’s ability to meet the complex emotional, financial, social, and psychological needs given her medical condition.

- School participation may also negatively be impacted and experiences of mental health symptoms post-parental deportation (i.e., persistent crying, depression, sadness, anger, resentment).

The Minister submitted that the Tribunal accepted that Mr Khalil would play a positive role in his children’s lives and contended, in effect, that it was unnecessary for the Tribunal to repeat the detail of Dr Pattni’s evidence. The Minister argued that the finding of the Tribunal could not have been more favourable to Mr Khalil, particularly in the face of the submission he (the Minister) had made to the Tribunal that Mr Khalil was unlikely to play a positive parental role in the future because of the risk he might reoffend.

The difficulty with this submission is twofold. First, it did not grapple with the evidence itself, which was concerned with the potential impact on the children of an adverse decision — children who are already likely to have been traumatised by their separation from their father during his imprisonment and, one would infer, his absence in immigration detention. Second, while the Tribunal did find, contrary to the Minister’s submission, that Mr Khalil would play a positive role in his children’s future, the failure of the Tribunal to consider Dr Pattni’s opinion may have caused the Tribunal to put less weight on the best interests of the children than it might have done had it taken that opinion into account.

Of course, ignoring material relevant only to fact-finding does not of itself give rise to jurisdictional error: Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 at [97]. As we have already observed, it was not necessary for the Tribunal to refer to every piece of evidence. Moreover, there is a distinction between a failure by the Tribunal to advert to evidence which, if accepted, might have caused it to come to a different finding of fact and a failure by the Tribunal to address a contention which, if accepted, might establish the elements of a statutory claim: WAEE at [44]–[46].

In determining whether it is a jurisdictional error to fail to consider certain evidence, “the fundamental question must be the importance of the [evidence] to the exercise of the Tribunal’s function and thus the seriousness of any error”: SZRKT at [111] (Robertson J), endorsed by the Full Court in Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431 at [70] (Kenny, Griffiths and Mortimer JJ). Moreover, “it is important not to reason that because a failure to deal with some (insubstantial or inconsequential) evidence will, in some circumstances, not establish jurisdictional error, then a failure to deal with any (substantial and consequential) evidence will also not establish jurisdictional error”: SZRTK at [111].

In our opinion, the evidence of Dr Pattni concerning the potential harm to the children arising from indefinite separation from their father was not insubstantial or inconsequential evidence, even if it the Tribunal might ultimately have accorded it little weight. The Tribunal ought to have taken it into account because it was expert evidence going to a consideration to which the Tribunal was bound to have regard.

Whether or not the error is jurisdictional also depends on whether the evidence is material, that is to say, whether there is a realistic possibility the outcome could have been different had the Tribunal taken it into account: SZMTA at [4], [45] (Bell, Gageler and Keane JJ). In determining the answer to that question, the remarks made in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v FAK19 [2021] FCAFC 153 at [174] (Kerr and Mortimer JJ, Allsop CJ agreeing at [1]) must be borne in mind:-

"This Court cannot substitute itself in the undertaking of such an evaluative task. In undertaking an assessment on materiality, where there are reasonable and rational choices to be made in fact finding, it is not appropriate for the supervising court to attempt to place itself in the mind of the Tribunal, and speculate about what would or could have changed a particular Tribunal’s mind. To do so brings the court into the merits of the decision. Rather, the supervising court must assume a Tribunal acting fairly and reasonably, with a mind open to persuasion, would give active and genuine consideration to all matters relevant to its review, including the matter which was erroneously omitted, or misconceived, and which caused it to exceed its jurisdiction. See generally Martincevic v Commonwealth [2007] FCAFC 164; 164 FCR 45 at [67]- [68], Chamoun v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 66; 276 FCR 75 at [70]; PQSM v Minister for Home Affairs [2020] FCAFC 125; 279 FCR 175 at [69]- [73]."

Although the Tribunal might ultimately have placed little weight on Dr Pattni’s evidence for any one of a number of reasons, “a Tribunal acting fairly and reasonably, with a mind open to persuasion”, could conceivably have come to a different conclusion if it had taken the evidence into account. That is because the evidence could have affected the weight it attached to the primary consideration of the best interests of the children and therefore the weight it attached to the other considerations: cf. Dunasemant v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 13 at [60] (Davies, Rangiah and Cheeseman JJ). By failing to take it into account, the Tribunal failed to complete its statutory task and so fell into jurisdictional error.

It follows that ground 2(a) of the amended notice of appeal is made out.

Conclusion

The appeal should be allowed on the new ground, which was not the subject of the application before the primary judge, that the Tribunal failed to take into account, as it should have, the evidence from Dr Pattni concerning the enhanced risk to the children of mental ill-health and behavioural problems that could ensue if Mr Khalil’s visa application were refused. A writ of certiorari should therefore be issued to quash the Tribunal’s decision and a writ of mandamus to require it, yet again, to consider Mr Khalil’s application according to law.

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