In considering whether or not to revoke a visa cancellation, regard has to be had to the considerations contained in a published Ministerial Direction. There are a number of primary and also “other” considerations (about ties to Australia and impediments to return) which have to be taken into account. One of the more unusual factors that I have seen raised in argument was in Pearson v Minister [2022] FCAFC 22 where Ms Pearson claimed that the psychological and emotional impact of separation from her two dogs (Oscar and Walter) was a factor in favour of the revocation.
The AAT decision made no reference to Oscar and Walter. The issue on judicial review then becomes whether the claim had been considered. Administrative decisions are different to judgments and if there is no finding on a particular fact it could be inferred that the fact was not considered (a “Yusuf inference”). However, just because something is not referred to in the reasons, doesn’t mean it hasn’t been considered.
There is an interesting distinction in the way the primary judge and the Full Court dealt with this issue:
- The primary judge (Markovic J) found that the claim had been “clearly articulated” and went on to consider whether the failure to refer to it was material to the decision;
- The Full Court, agreed that it was clearly articulated but decided that simply because it wasn’t referred to in the reasons (but having regard to the way the case had been conducted) didn’t mean that there was a “failure to consider” jurisdictional error.
Either way, it hasn’t ended well for Ms Pearson.
Creative commons acknowledgement for the photograph.
