PQSM v Minister for Home Affairs & Anor [2021] HCATrans 31 (12 February 2021)

Last Updated: 19 February 2021

[2021] HCATrans 031

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Perth No P41 of 2020

B e t w e e n -

PQSM

Applicant

and

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

Application for special leave to appeal

BELL J
KEANE J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 12 FEBRUARY 2021, AT 1.46 PM

Copyright in the High Court of Australia
MR M.G.S. CROWLEY appears for the applicant. (instructed by William Gerard Legal Pty Ltd)

MR G.R. KENNETT, SC with MR P.R. MACLIVER appears for the first respondent. (instructed by Sparke Helmore)

BELL J: Thank you, Mr Crowley.

MR CROWLEY: May it please the Court. This point is whether it is a correct application of the materiality requirement to discount as immaterial a failure to take into account a materially relevant favourable consideration by reference to the weight given to the adverse considerations actually taken into account. We say the answer must be it is not a correct application because to do so is to trespass into the fact‑finding function of the decision‑maker by the court on judicial review undertaking the weighing exercise and because the weight actually given to the considerations is itself a product of the error and because that kind of inquiry proceeds from the premise that the matter left out of account might satisfy the materiality requirement.

The point arises in this way, that under 501CA(4)(b)(ii) there was a single criterion animating the Tribunal’s review. It was required to ask whether it was satisfied there was another reason why a visa cancellation should be revoked. Under section 499A(2) the Tribunal’s state of mind was to be informed by a range of mandatory considerations as directed by the Minister under Direction 79.

That direction required there be three primary considerations and a range of other considerations but, critically, the primary considerations were not to automatically prevail. They were generally to attract more weight but not necessarily. Rather, each consideration was to be given its appropriate weight.

The primary judge at page 85 of the book in paragraph 49 found that there was a materially relevant consideration that was not considered at all and that was the consideration at 14.2(1)b) of the direction which was the effect of non‑revocation on the applicant’s immediate family, namely, his partner of 14 years and his two adult children.

The reasons of the primary judge at paragraph 63 at page 89 of the book and the Full Court majority below at paragraphs 152 to 153 at pages 149 to 150 of the book held that the error could not realistically have resulted in a different outcome. But that was because of the primary judge’s reasons at paragraphs 60 to 61 at page 88 of the book and the Full Court’s adoption of that analysis at paragraph 152 and page 149 that the Tribunal’s reasons were not finely balanced and the weight given by the Tribunal, in fact, to the two primary considerations adverse to the applicant was heavy.

In our submission, that was erroneous because, firstly, it involves, necessarily, the Federal Court itself conducting a weighing exercise – the subject of the review. In effect, the Full Court’s starting point was that the failure to take into account the effect of non‑revocation on the applicant’s immediate family was intrinsically capable of supplying another reason why the cancellation should be revoked.

KEANE J: So is the contention that the Tribunal was bound then to investigate whether there was a case to be made about the relevance of the adult children and partner?

MR CROWLEY: We do not put it quite that way, your Honour.

KEANE J: If you do not put it that way, then are we not left with the situation that had the Tribunal addressed the question, that is to say, if they had gone to that particular criterion, they would have seen that there was nothing which might lead to a conclusion favourable to your client in relation to that consideration.

MR CROWLEY: We certainly say that it is to be inferred that had the Tribunal considered that criteria it would have asked those questions of the witnesses. After all, one of the adult children and the partner were witnesses before the Tribunal. It was a very easy matter to put those questions ‑ ‑ ‑

KEANE J: No, no, no - because the answer you gave earlier was that the Tribunal was not obliged to investigate it. But the answer you have just given now suggests the Tribunal was obliged to investigate it by asking its own questions of these people, rather than by looking at the evidence that was tendered to it.

MR CROWLEY: Perhaps I was too rash in answering. I suppose there is an element of an obligation to inquire. After all, the Tribunal was an inquisitorial body and it did have an obligation to explore these matters. I really put it on the basis that it cannot be - the absence of answers to some of the questions posed by the primary judge is not a sufficient basis to knock the case out on the materiality grounds because that is precisely what occurred in Uelese by a majority, because the submission put there was the matter left out of account could not be said to have made any difference because there was simply no evidence about it. But, as I understood the High Court’s reasoning, it was that there was something ‑ ‑ ‑

KEANE J: No, in Uelese the Tribunal fettered itself by ruling that it could not inquire into those matters.

MR CROWLEY: Yes.

KEANE J: Nothing like that happened here. This Tribunal was not on notice that there were matters to be considered. In Uelese, the evidence came out and the Tribunal said, well, we must turn our eyes away from that. Here, the Tribunal had absolutely no reason to think that there was something in the relationship between your client and his partner and adult children that might have led to a favourable conclusion.

MR CROWLEY: Well, I am not sure that that is entirely correct, with respect, because if you look at Justice Mortimer’s dissenting judgment at paragraph 112, her Honour sets out the evidence that was before the Tribunal, and that includes letters and evidence that - an assertion that the applicant was:

the sole provider for the family -

and that the applicant’s - his long‑term relationship with his partner and that they had plans to re‑join her and together they would deal with her psychiatric:

issues and live together as a family –

So there was, in fact, that factual foundation for that inquiry. It was not, as is put, being blindsided by this question. The material was there. It was a fairly obvious inquiry to make.

Turning to the first point, in this case it necessarily involved the Federal Court itself conducting the weighing exercise, the subject of review. It was just that it was only because of the significant weight the Tribunal gave to the two adverse primary considerations that the possibility of a different outcome was insubstantiated and your Honours can see that at paragraph 153 of the majority’s reasons.

This was more than just recording the retrospective findings actually made by the Tribunal. There was a particular kind of calculus applied here. What the primary judge was doing, and what the Full Court said was permissible and appropriate, was to subtract the matter left out of consideration from the findings actually made, to ask if the same outcome would have obtained.

The problem with that analysis is that the omitted consideration was denuded of any probative value. In a sense, the inquiry started where it should have ended. It should have ended where there was an implicit finding that there was something capable of informing paragraph 14.2(1)b), and, having found that, that was the basis to find a possibility of a different outcome.

BELL J: If one goes to paragraph 153, the joint reasons proceed on the basis that the Tribunal placed on the primary considerations significant weight and their Honours observed that, assessed objectively, the material on which your client relied did not give rise to a realistic possibility of the Tribunal reaching a different conclusion. That is not a case of the joint reasons engaging themselves in a process of fact finding. It is a case of them drawing the conclusion that you failed to establish the existence of a reasonable possibility of a different conclusion having regard to an objective assessment of the Tribunal’s findings.

MR CROWLEY: The difficulty, though, was that the consideration which was left out of account was weighed against the factors that were given – account of which was given and that is why the finding that there was no realistic prospect of a different outcome followed. What they should have done, in my submission, was taken the consideration left out of account in isolation and then asked whether a realistic possibility of a different outcome was denied. It could only have reached that point if it weighed that consideration against the considerations left out of account and, in my submission, that is the weighing exercise that only the Tribunal is permitted to do.

BELL J: Yes.

KEANE J: But your case comes down to this, does it, that the difference between the majority and the dissentient is a difference of views about whether or not an objective view of the material gives rise to a reasonable possibility of a different result?

MR CROWLEY: I think that is about the long and the short of it, your Honour, yes. But there is another problem and that is that the approach taken by the majority is to allocate the same weight that the Tribunal allocated without recognising that that itself was the product of the error.

You see, what the Full Court should not have done is to use, without modification, the findings of weight as proof of immateriality. After all, there was only a single criterion actuating the power to revoke and that was informed by a whole range of considerations to which weight was to be allocated. Ordinarily, you might expect a tribunal of fact to take into account all of those matters and then allocate weight. The fallacy in the
majority’s approach is that the Tribunal’s allocation of weight would necessarily have been identical but for the error.

But whatever weight was allocated to the effective non‑revocation on the applicant’s immediate family is weight that would not have been available to be allocated to the other considerations and I think that is the point that the differently constituted court in Chamoun made at paragraph 70 where they say:

That reconstructive exercise cannot simply be done by taking the reasons and findings as they stand, because those reasons are a product which incorporates the misunderstanding. The approach must be more objective, and nuanced, than that. Otherwise, there is a risk that the decision‑maker’s reasons are used in a way which amounts to prejudgment. Such prejudgment would itself normally give rise to error.

BELL J: Is there anything further, Mr Crowley?

MR CROWLEY: Those are the submissions.

BELL J: Thank you, Mr Crowley. We do not need to hear from you, thank you, Mr Kennett.

MR KENNETT: If the Court pleases.

BELL J: In our view, the application does not disclose any error of principle on the part of the majority in the Full Court. Special leave is refused, with costs.

Adjourn the Court to 10.00 am on Monday, 1 March in Canberra.

AT 2.01 PM THE MATTER WAS CONCLUDED