Background
Voon Chian Puah, a Malaysian citizen, arrived in Australia shortly before turning 18 and had lived there for almost 24 years by the time of the Administrative Review Tribunal’s decision. After convictions for possessing and supplying a large commercial quantity of methylamphetamine, for which he received a five-year prison sentence, his resident return visa was mandatorily cancelled.
A ministerial delegate declined to revoke the cancellation under s 501CA of the Migration Act 1958 (Cth), and the Tribunal affirmed that decision. Puah sought judicial review, alleging that the Tribunal had failed to apply the “tolerance principle” in Ministerial Direction No 110 and had failed to consider his claim that he cared for two elderly uncles.
The Court’s Holding
Stewart J quashed the Tribunal’s decision and remitted the matter for redetermination by a differently constituted Tribunal. The Tribunal had to consider the mandatory factors in Direction No 110 as informed by any relevant principles, including the principle that Australia may show greater tolerance for criminal conduct by non-citizens who have lived in Australia for most of their lives or from a very young age.
The tolerance principle was objectively relevant: Puah had lived the clear majority of his life, and all of his adult life, in Australia. Yet the Tribunal did not consider whether he had lived in Australia for most of his life or whether that warranted a higher level of tolerance when assessing community protection and community expectations. That material failure to comply with the Direction was jurisdictional error.
Independently, the Tribunal failed to consider Puah’s clearly articulated claim that he would live with and care for his elderly uncles. The claim remained part of the statutory representations before the Tribunal, despite not being separately repeated in Puah’s statement of facts, issues and contentions. Its omission was also material jurisdictional error.
Key Takeaways
- The tolerance principle is not itself a mandatory consideration, but must inform relevant mandatory considerations under Direction No 110.
- A non-citizen’s years in Australia require a qualitative assessment; living the majority of one’s life and all adult life in Australia may make the principle relevant.
- Clearly made revocation representations can remain before the Tribunal where accepted and uncontroversial, even if not restated in later Tribunal submissions.
Why It Matters
The decision confirms that a Tribunal cannot merely recite Direction No 110’s principles. Where the evidence makes the tolerance principle relevant, the Tribunal must actually use it to inform its assessment of community protection and community expectations.
It also reinforces the continuing role of representations made in the revocation process. A Tribunal must engage with a clear, material family-care claim unless it has genuinely been withdrawn or displaced.