Was the Tribunal's decision in failing to engage in evaluative assessment of relevant mandatory considerations affected by jurisdictional error?

LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12 (10 April 2024)

Intro:-

This is an appeal from the Full Federal Court of Australia

Facts:-

The appellant is a Vietnamese national. He arrived in Australia in 1997 and, in 2008, was granted a Class BS Subclass 801 (Spouse) visa. Between November 2011 and August 2017, he was convicted of various offences on three separate occasions, twice in the County Court of Victoria and once in the Magistrates' Court of Victoria, including offences of conspiring to import or export a marketable quantity of a border controlled drug or plant, attempting to possess a marketable quantity of a border controlled drug or plant, and trafficking a drug of dependence. On each occasion he was sentenced to a period of imprisonment, the most recent of which was on 17 August 2017 for a period of four years and six months.

In May 2019, the appellant's visa was subject to mandatory cancellation under s 501(3A) of the Migration Act 1958 (Cth) ("the cancellation decision"). An application, under s 501CA(4) of the Act, for revocation of the cancellation failed ("the delegate's decision").

The appellant applied to the Administrative Appeals Tribunal ("the Tribunal") to review the delegate's decision and, in deciding to affirm the delegate's decision, the Tribunal said it was not satisfied (under s 501CA(4)(b)(ii) of the Migration Act) that there was "another reason" why the cancellation decision should be revoked. In considering whether there was "another reason", the Tribunal was required by s 499(2A) of the Migration Act to comply with Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA ("Direction 90").

Tribunal's decision

The Tribunal was required by para 8.1.1(1)(a) to have regard to the fact that certain "types of crimes or conduct" described therein are deemed to be viewed "very seriously" by the Australian Government and the Australian community. There was no dispute that none of the appellant's convictions fell within any one of the described types. In considering this sub-paragraph, the Tribunal found that it "militate[d] strongly in favour of a finding that the [appellant's] criminal offending has been of a very serious nature".

Paragraph 8.1.1(1)(b) required the Tribunal to have regard to the fact that certain "types of crimes or conduct", which were listed, are considered by the Australian Government and the Australian community to be "serious". The appellant did not dispute that his drug offending could be characterised as falling within one of these described types, namely "crimes committed against vulnerable members of the community". The Tribunal found that para 8.1.1(1)(b) also "militate[d] in favour of a finding that the [appellant's] criminal offending has been of a very serious nature".

Paragraph 8.1.1(1)(g) required the Tribunal to have regard to whether the appellant "has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the [appellant's] migration status". The Tribunal found that "[t]his consideration is directly relevant in this case", and specifically found that it was "satisfied that the [appellant] re-offended since having been formally warned or since otherwise being made aware in writing about the consequences of further offending in terms of his migration status".

Decision of Federal Court and Full Federal Court

In the Federal Court of Australia, Snaden J dismissed the appellant's application for judicial review of the Tribunal's decision under s 476A(1)(b) of the Migration Act on the basis that the Tribunal's decision "was not attended by jurisdictional error". Relevantly, his Honour found that the Tribunal had not erred in its treatment of para 8.1.1(1)(a), (b) and (g) of Direction 90.

The Full Court of the Federal Court (Markovic, Thomas and Button JJ) agreed with the primary judge's conclusion that the Tribunal's decision was not attended by jurisdictional error but arrived at that conclusion by a different route. The Full Court found that the Tribunal's findings in relation to para 8.1.1(1)(a), (b) and (g) did involve error, but dismissed the appeal on the basis that the error was not material and therefore not jurisdictional.

Issue:-

Was Tribunal failure to engage in evaluative assessment of relevant mandatory considerations material leading to jurisdictional error?

Consideration:-

Did an error occur?

Before this Court, there was no dispute that the Tribunal's decision involved error: the Tribunal breached s 499(2A) of the Migration Act in failing to comply with Direction 90 in the manner described. In the present case, where the error was a breach by a statutory decision-maker of a condition governing the making of the decision, the relevant facts were established by the tender of the Tribunal's reasons for decision. Nothing more was required.

In the courts below, the parties and the courts approached the identification of error by considering each aspect of the Tribunal's reasons which was challenged as a separate error. That was a misidentification of the error. As counsel for both the appellant and the Minister accepted in the course of argument, there was one error – a failure to comply with s 499(2A) of the Migration Act. Each aspect of non-compliance with s 499(2A) was a particular of the one error – a breach by a statutory decision-maker of a condition governing the making of a decision, namely statutory non‑compliance with s 499(2A) of the Migration Act in failing to comply with Direction 90.

Was the error material?

The issue on appeal concerns the second question: whether the error was material so as to constitute jurisdictional error. The starting point is the nature of the error. There was no submission that a breach of s 499(2A) of the Migration Act in failing to comply with Direction 90 was an error that was jurisdictional irrespective of any effect that the error might or might not have had on the decision that was made in fact. The question was whether the decision that was in fact made by the Tribunal could, not would, "realistically" have been different had there been no error. The answer to that question, in this appeal, is to be determined from the face of the Tribunal's reasons.

The error of the Tribunal was a breach by a statutory decision‑maker of a condition governing the process of reasoning to be undertaken in exercising the decision-making power under s 501CA(4). The condition imposed by s 499(2A) by reference to Direction 90 required the Tribunal to take into account, as mandatory considerations, the primary considerations identified in para 8 and the other considerations in para 9, where those considerations were relevant to the decision. Fulfilment of the condition required the Tribunal to identify which of those mandatory considerations were relevant to the particular circumstances of the particular applicant. Then, having identified the relevant mandatory considerations, the exercise of the discretion under s 501CA(4) required the Tribunal to engage in an evaluative assessment involving the weighing of those relevant mandatory considerations with other relevant considerations.

In this case, the Tribunal did not follow the required process of reasoning. In relation to para 8.1.1(1)(a), the unavoidable inference is that the Tribunal misunderstood the provision, the appellant's conduct, or both. In relation to para 8.1.1(1)(b), it is not possible to comprehend how the Tribunal made its findings.[41] In relation to para 8.1.1(1)(g), the Tribunal regarded the consideration as directly relevant when there was no evidence before the Tribunal showing that it did apply. There is no rational basis for the Tribunal's findings.

Those aspects of the error, in the statutory context in which the decision was made, compel the finding that the evaluative conclusion reached by the Tribunal in the exercise of the discretion under s 501CA(4) could have been different if there had been no error. Each particular of the error contributed to the evaluative and discretionary decision which the Tribunal made in that each bore on the Tribunal's assessment of Primary Consideration 1, and in that the Tribunal's assessment of Primary Consideration 1 weighed in favour of its exercise of discretion under s 501CA(4) not to revoke the cancellation of the appellant's visa. The Tribunal's error in its process of reasoning in these respects alone established that the error was material.

It would involve improper speculation to attempt to discern how the Tribunal would have reasoned if it had not departed from the required process of reasoning in these respects. It follows that there is a possibility, not fanciful or improbable, that the decision that was made in fact could have been different if the error had not occurred. The threshold of materiality was met. None of the facts before the Court provided a basis to consider that the outcome would inevitably have been the same had the error not been made. The error was jurisdictional. The curial relief sought by the appellant should be granted.

Orders

For those reasons:

1. The appeal should be allowed with costs.