FEDERAL COURT OF AUSTRALIA

Nigam v Minister for Immigration and Border Protection [2017] FCAFC 127

ORDERS

THE COURT ORDERS THAT:

1.    The appellant’s application for leave to file an amended notice of appeal containing paragraph 1(d)(ii) of the draft notice of appeal forming annexure DKB1 to the affidavit of David Kenneth Brooks of 31 July 2017 is refused.

2.    The appeal is dismissed.

3.    The appellant is to pay the first respondent’s costs of the appeal.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

1    The appellant is a citizen of India. In 2004, he applied for a Partner (Temporary) (Class UK) visa under the Migration Act 1958 (Cth). Determination of the visa application was deferred while the appellant served a term of imprisonment for criminal offences.

2    On 3 May 2016, a delegate of the first respondent (Minister) refused to grant the visa on character grounds pursuant to s 501(1) of the Act. The Administrative Appeals Tribunal reviewed and affirmed the delegate’s decision. An application for judicial review of the Tribunal’s decision was dismissed by a single Judge of this Court: Nigam v Minister for Immigration and Border Protection [2017] FCA 106. This is an appeal from that judgment.

3    For the reasons that follow, the appeal should be dismissed.

DIRECTION 65

4    The power under s 501(1) of the Act to refuse to grant a visa to a person on character grounds will be enlivened if the person does not satisfy the Minister that he or she passes the character test defined in s 501(6). The appellant could not on any view satisfy the Minister’s delegate that he passed the character test because he has a substantial criminal record within the meaning of s 501(6)(a) and s (7)(c).

5    In exercising the discretion conferred under s 501(1) of the Act, the Minister’s delegate was required to comply with any direction issued by the Minister under s 499(1): see s 499(2A). The applicable direction was Direction No. 65 titled Visa refusal and cancellation under s 501 issued on 22 December 2014 (Direction 65). The principles stated in Direction 65 “provide a framework within which decision-makers should approach their task of deciding whether to refuse or cancel” a visa under s 501: Direction 65, [6.2(3)]. Its purpose is to “guide” decision-makers in the exercise of the discretion:  Direction 65, [6.1(4)].

6    Paragraph 6.3 of Direction 65 contains broadly stated principles. Informed by those principles, the decision-maker must take into account the primary and other considerations specified in (relevantly) Part B. The primary considerations are specified in [11]:

11    Primary considerations – visa applicants

(1)    In deciding whether to refuse a non-citizen’s visa, the following are primary considerations:

a)    Protection of the Australian community from criminal or other serious conduct;

b)    The best interests of minor children in Australia;

c)    Expectations of the Australian Community.

7    Paragraph 8(4) provides that primary considerations should generally be given more weight than other considerations.

8    Subparagraph 11.2(1) provides:

11.2    Best interests of minor children in Australia affected by the decision

(1)    Decision-makers must make a determination about whether refusal is, or is not, in the best interests of the child.

9    Paragraph 11(4) specifies the factors that must be considered, where relevant, in considering the best interests of the child. They relevantly include the extent to which the visa applicant is likely to play a positive parental role in the future [11(4)(b)] and any known views of the child [11(4)(f)].

The Tribunal’s decision

10    The appellant has a daughter. We will refer to her as J. She is presently aged 12. J has been diagnosed with Autism Spectrum Disorder and Attention Deficit Hyperactivity Disorder with associated language impairment and learning delay. She exhibits behavioural problems, has significant special needs and requires constant care.

11    The Minister’s delegate found that the refusal of the appellant’s visa application was not in J’s best interests. She nonetheless concluded that the interests of J were outweighed by the other primary considerations referred to in [11] of Direction 65.

12    The Tribunal conducted a review of the delegate’s decision pursuant to s 500(1)(b) of the Act. In performing its review function, the Tribunal was bound to comply with Direction 65: s 499(2A) of the Act. In its reasons for affirming the delegate’s decision, the Tribunal said at [79] – [80] of its reasons:

79.    On balance, I am not satisfied it is in the best interests of [the appellant’s] daughter that his visa not be refused.

80.    This consideration weighs against a decision that [the appellant’s] visa not be refused.

13    Those statements follow from a detailed consideration of the evidence before the Tribunal, commencing at [50] of its reasons. The Tribunal’s observations and findings are conveniently and correctly summarised at [35] of the reasons of the primary judge as follows:

(1)    The applicant’s daughter has significant special needs resulting in among other things severe behavioural difficulties (at [52]). The Tribunal considered that ‘[t]he evidence is very clear that Mr Nigam’s daughter requires stability and routine. Any change to her daily activities and patterns causes her great distress.’ (at [53]).

(2)    The Tribunal found that it was plain, that her mother, Ms B, loves and cares for her daughter very much (at [56]). The Tribunal also accepted that caring for a child with special needs is challenging, that Ms B may need to seek help from others at times and occasionally respite care, and that she feels that she would be assisted by the applicant’s more active participation in their daughter’s upbringing. However, the Tribunal found that ‘[s]he has coped without [Mr Nigam] and alone for a significant period of time and I have no doubt that she can continue to do so’ (Tribunal reasons at [58]).

(3)    A registered psychologist gave evidence that Mr Nigam’s daughter needs as much support as possible and ideally a direct parental relationship. She opined that ‘… it is in the child’s best interest for Mr Nigam to remain in Australia, if a number of optimal conditions transpired (‘the Optimal Conditions’)’ (emphasis in the original). Ten Optimal Conditions were identified, relating to the extent, constancy and nature of contact between Mr Nigam and his daughter (at [59]).

(4)    In finding at [60] of its reasons that on balance it was not satisfied that the Optimal Conditions are likely to materialise, the Tribunal looked at a number of factors. These included the extent of contact that Mr Nigam had had with his daughter, acknowledging positive increases in that contact since his incarceration (increased phone contact and a successful home visit), and that he had recently provided increased financial support for his daughter in excess of his required child support payments. While Mr Nigam also gave evidence that he intends to move closer to his daughter and increase his custodial care and/or visitations, the Tribunal found that ‘[t]his, however is currently hypothetical and, as he says, dependent on finances. There is no clear plan at present for Mr Nigam to move closer to [Ms B] and his daughter, nor for them to move closer to Mr Nigam.’ (at [67]). The Tribunal also took into account that:

(a)    despite Mr Nigam’s evidence that he wished and intended to be involved in his daughter’s schooling and to help her with her learning difficulties, he had not taken steps to contact her teachers;

(b)    ‘[i]t is plain that at the time that he committed the offence [in January 2005], he gave little, if any, consideration to the well-being of his family…’ (at [70]);

(c)    despite Mr Nigam’s best intentions, ‘his role as a positive parental figure is largely untested. He has spent the majority of her life either incarcerated, on parole or detained. How he would respond to the daily challenges of fatherhood is mostly unknown.’ (at [73]);

(d)    the applicant’s history of abusive (not physical) conduct towards the mother is also concerning (at [74]);

(e)    any future criminal or other serious misconduct, whether directly or indirectly involving the mother and his daughter, could have a serious negative impact on his daughter’s stability, routine and well-being (at [75]);

(f)    whilst Mr Nigam’s daughter may have some difficulties at school, there is no evidence upon which the Tribunal could be satisfied that her difficulties or behaviour will worsen without Mr Nigam’s direct parental involvement (at [76]);

(g)    the Tribunal did not accept Mr Nigam’s evidence that contacting his daughter from India would be very difficult, finding that his claims are mostly unfounded and unsupported by evidence (at [77]);

(h)    nor was there any evidence that could support the applicant’s contention that he may not be able to support his daughter financially due to difficulties in finding work in India (at [78]).

(5)    The Tribunal concluded on this factor that:

79.    On balance, I am not satisfied it is in the best interests of Mr Nigam’s daughter that his visa not be refused.

80.    This consideration weighs against a decision that Mr Nigam’s visa not be refused.

The judicial review proceedings

14    In the proceedings before the primary judge, it was necessary for the appellant to show that the Tribunal committed jurisdictional error: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 at [83] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ); Craig v South Australia (1995) 184 CLR 163 (Brennan, Deane, Toohey, Gaudron and McHugh JJ) and Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 (McHugh, Gummow and Hayne JJ) and s 474 of the Act. The appellant advanced three grounds for review founded on the statement at [79] of the Tribunal’s reasons.

15    The first was to the effect that the Tribunal had failed lawfully to consider the best interests of J, as it was required to do in accordance with [11.2] of Direction 65. The second was to the effect that the Tribunal had failed to consider the extent to which the appellant was likely to play a positive parental role in J’s life as it was required to do by [11.4(b)] of Direction 65. The third was to the effect that the Tribunal had failed to comply with the rules of procedural fairness by arriving at its “conclusion” about J’s best interests without first advising the appellant and allowing him an opportunity to make submissions in respect of it.

16    The primary judge rejected each ground of review.

17    The appellant submitted before the primary judge that the Tribunal’s concluding statements at [79] and [80] were “so obscure that it is impossible to know what question the Tribunal asked of itself”. The primary judge rejected that argument. Her Honour characterised the Tribunal’s conclusion as follows:

36    … fairly read, the effect of the finding is simply that, on balance, the Tribunal was not satisfied that it is in the best interests of Mr Nigam’s daughter that he be granted a visa.

37    Further, while not a ground of review, the applicant also submitted that the conclusion in the Tribunal’s reasons at [80] did not logically follow from the conclusion at [79]. I agree. The finding at [79] logically could have founded a conclusion only that the best interests of Mr Nigam’s daughter was a neutral consideration neither weighing in favour of or against a decision that Mr Nigam should be granted the visa. That said, however, I agree with the Minister’s submission that that error could have made no difference to the Tribunal’s decision given that all of the other factors taken into account by the Tribunal were found to weigh against the applicant.

(emphasis added)

18    Later in her reasons, the primary judge observed that the Tribunal was not satisfied on the evidence that the best interests of J favour the grant of visa but equally was not satisfied that they did not (at [44]). The primary judge held (at [40]) that such a course was open to the Tribunal on the proper construction of Direction 65 in light of the evidence before it.

19    A construction of Direction 65 that permitted of a neutral conclusion was, her Honour held (at [41]), consistent with the construction of an equivalent direction adopted by the majority of the Full Court in Paerau v Minister for Immigration and Border Protection (2014) 219 FCR 504. That case concerned the exercise of the power under s 501(2) of the Act to cancel a visa on character grounds and the construction of the predecessor direction issued under s 499 of the Act, expressed in materially the same terms as Direction 65. The Tribunal in that case did not make a determination as to whether or not the cancellation of the visa was in the best interests of the visa-holder’s children because there was before it a paucity of evidence upon which any such determination might sensibly be made.

20    In separate judgments, Buchanan and Perry JJ held that the Tribunal’s conclusion did not involve jurisdictional error (at [27] and [118]). They each construed the equivalent to [11.2] of Direction 65 so as to not require the Tribunal to make a binary choice as to whether cancellation of the appellant’s visa was or was not in the best interests of his children in circumstances when it was unable to do so in light of the paucity of evidence before it.

21    It is clear that her Honour did not regard there to have been a paucity of evidence before the Tribunal in the appellant’s case. Reference was nonetheless made to Paerau because it supported a construction of Direction 65 that did not require the Tribunal to make a definitive binary choice as to whether refusal of the visa was or was not in the best interests of J. The primary judge held that it was open to the Tribunal, on the evidence before it, to not reach a state of satisfaction either way as to whether refusal of the appellant’s visa would be in J’s best interests. The first ground of review was dismissed on that basis.

22    In support of the contention that the Tribunal had failed to consider the extent to which the appellant was likely to play a positive parental role in J’s life, the appellant relied on the opinion given before the Tribunal by Dr Alsop referred to at [13(3)] above. It was submitted that the Tribunal had erred by adopting an all or nothing approach to the question of whether the “optimal conditions” might be met and had therefore failed to make an assessment of the extent of the appellant’s likely involvement in J’s life, that is, as matter of degree.

23    In rejecting that submission, the primary judge held that the Tribunal had considered at some length the question of the likely extent of involvement by the appellant in J’s life. It was not, her Honour held, “incumbent on the Tribunal to speculate on scenarios contrary to the expert evidence on which the applicant himself relied” (at [55]). The learned judge concluded:

… the fact that the Tribunal was unable ultimately to make a finding one way or the other on the state of the evidence does not reveal error for the reasons I have already held. Ultimately, therefore, with respect the submission seeks to take issue with the merits of the Tribunal’s findings of fact. Accordingly, ground 2 of the application is not established.

24    The ground of review alleging a breach of the rules of procedural fairness was said by the appellant to find support in this statement of principle by the Full Court in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 591 — 592:

Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question.

(Emphasis added)

25    It was contended that the Tribunal’s failure to be satisfied that refusal of the visa was not in the best interests of J was a conclusion that was not obviously open on the known material. The appellant claimed the conclusion ought to have been foreshadowed by the Tribunal so that he might have an opportunity to make submissions urging against it.

26    The primary judge held that the circumstances did not attract the principles stated in Alphaone (at [60]):

Rather, the complaint reduces to an alleged failure by the Tribunal to disclose its mental processes before it reached a final decision. It is well established that that does not suffice to establish a breach of procedural fairness.

27    Her Honour referred to the decision of the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [48]:

… as Lord Diplock said in F Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry [[1975] AC 295 at 369]:

‘the rules of natural justice do not require the decision maker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision. If this were a rule of natural justice only the most talkative of judges would satisfy it and trial by jury would have to be abolished.’

Procedural fairness does not require the Tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given. On the contrary, to adopt such a course would be likely to run a serious risk of conveying an impression of prejudgment.

28    The third ground of review was accordingly rejected and the application for judicial review dismissed.

GROUNDS OF APPEAL

Application to amend

29    The appellant applied for leave to file an Amended Notice of Appeal in the following terms.

Grounds of appeal

1.    The Court erred in failing to find that the Administrative Appeals Tribunal (‘Tribunal’) committed jurisdictional error by not lawfully considering the best interests of the appellant’s daughter, as it was required to do pursuant to paragraph 11.2 of Direction No. 65, made pursuant to s 499 of the Migration Act 1958 (Cth).

Particulars

a.    The Tribunal failed to consider what the best interests of the appellant’s daughter required.

b.    The Tribunal’s finding that it was ‘not satisfied that it is in the best interests of Mr Nigam’s daughter that his visa not be refused’ was not a determination about whether such refusal was, or was not, in the best interests of the appellant’s daughter.

c.    The Court erred in:

i.    finding that the Tribunal was entitled to conclude, on the evidence before it, that the evidence did not permit a proper conclusion about whether or not the refusal of the visa was in the best interests of the appellant’s daughter:

ii.    finding that the Tribunal found on rational grounds that the evidence could not support a finding either way as to whether it was in the best interests of the appellant’s daughter that his visa be granted; and

iii.    failing to find that the Tribunal had failed to comply with its obligation to make findings of fact about what was in the best interests of the appellant’s daughter.

d.    The Court erred in failing to find that the Tribunal did not have regard to consideration made relevant by paragraph 11.2(4) of Ministerial Direction No 65, being:

i.    the extent to which the appellant was likely to play a positive parental role in his daughter’s future (paragraph 11.2(4)(b)):

and

ii.    the known views of the appellant’s daughter (paragraph 11.2(4)(f)).

e.    In determining that it was ‘not satisfied that it is in the best interests of Mr Nigam’s daughter that his visa not be refused’, the Tribunal acted unreasonably in the legal sense, in that it reasoned illogically and irrationally and in that it failed to give adequate weight to relevant factors of great importance.

2.    The Court erred by failing to find that the Tribunal acted in breach of the rules of procedural fairness.

Particulars

a.    The Tribunal drew a conclusion that it was ‘not satisfied that it was in the best interests of [the appellant’s] daughter that his visa not be refused.’

b.    That conclusion was adverse to the appellant’s interests.

c.    The possibility of the Tribunal’s conclusion being drawn:

i.    Was not obviously open on the evidence or submissions: and

ii.    Was not advised to the appellant.

30    With the exception of [1(d)(ii)] and [1(e)], the proposed grounds raise the same arguments that were determined in the proceedings before the primary judge. Leave to file the amended notice of appeal was allowed with the exception of those paragraphs. For reasons given below, leave to raise the issues identified in [1(e)] was refused at the hearing of the appeal. Judgment on the application for leave in relation to [1(d)(ii)] was reserved and the parties addressed the Court on its substantive merits. For the reasons given at [51] to [59] below, that proposed ground lacks merit and leave to make that amendment is accordingly refused.

The proposed amendment in [1(e)]

31    In University of Wollongong v Metwally (No 2) [1985] HCA 28; (1985) 60 ALR 68 the High Court said (at ALR 71):

It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so.

32    The same considerations apply on an appeal to the Full Court of this Court: Gomez v Minister for Immigration and Multicultural Affairs [2002] FCAFC 105; (2002) 190 ALR 543. The Court has a discretion to allow the introduction of the new grounds if it be “expedient and in the interests of justice” to do so: Gomez at [18] (Hill, O’Loughlin and Tamberlin JJ); VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588 at [46] (Kiefel, Weinberg and Stone JJ).

33    In SZKMS v Minister for Immigration and Citizenship [2008] FCA 499 Lander J refused leave to an appellant to introduce new grounds on an appeal notwithstanding that the opposing party would not have been prejudiced by the grant. His Honour said (at [30]):

… There are good reasons why this Court should not be made de facto the Court of original jurisdiction when sitting on appeal. Otherwise its role as an intermediate Court of Appeal will be undermined. The High Court should not be burdened by applications for leave to appeal from decisions of this Court which have not been reviewed.

34    The appellant was represented before the primary judge by solicitors and experienced counsel. He was twice granted leave to amend his originating application so as to introduce new grounds of review and submissions made on his behalf were otherwise comprehensive and carefully considered. There is no explanation given for the failure to raise arguments of the kind now sought to be raised before the primary judge. The most that can be said is that the appellant has changed counsel (although he has not changed solicitors) and his new counsel has taken a different view as to availability and merits of the point.

35    The proposed ground is not adequately particularised. The Court is left to discern the particular complaints about the Tribunal’s reasoning from the appellant’s written submissions. The submissions allege multiple of lapses in logic, none of which was complained of before the primary judge. Allowing the proposed ground of appeal would have expanded the subject matter of the appeal considerably.

36    It was said that in the absence of prejudice to the respondents, the question of whether leave should be granted should be answered by reference to the best interests of the appellant’s daughter. The appellant relied on Teoh v Minister of State for Immigration and Ethnic Affairs (1994) 49 FCR 409. In that case, leave to raise an issue concerning the best interests of a child was granted in circumstances where no consideration had been given to the interests of a child in the primary proceedings. The issue sought to be raised in that case was one of general importance. The decision in Teoh does not support the proposition that the best interests of the appellant’s daughter should be determinative of the application for leave made in the present case. Unlike the circumstances in Teoh, the interests of J were front and centre of the appellant’s submissions before the Tribunal and before the primary judge, and the new ground for challenging the Tribunal’s determination on the question is one that could and should have been made in that context. In all of the circumstances, we determined that leave to raise the arguments embedded in [1(e)] of the proposed amended notice of appeal should be refused.

37    The proposed new ground in [1(d)(ii)] is considerably more confined. It involves a discrete subject in respect of which, we are satisfied, the parties made submissions in the judicial review proceedings. It is for that reason that the Court determined that submissions should be made as to the issue arising on that proposed ground and the application for leave be decided having regard to its merits.

GROUND 1

Amended Notice of Appeal, [1(a), (b) and (c)]

38    We respectfully agree with the observation of the primary judge that the Tribunal’s language at [79] and [80] of its reasons is confusing. The negative language nonetheless reflects the statutory context in which the Tribunal performed its decision-making function. The function involved the exercise of a discretionary power to refuse to grant a visa to the appellant. The manner in which a conclusion under [11.2] of Direction 65 is expressed will be important. A statement that the refusal of a visa would be in the best interests of a child carries with it a finding that the child may positively benefit from the removal of the visa applicant from Australia. That is not the finding made by the Tribunal in the present case. Rather, as the primary judge held, the Tribunal’s reasons should be interpreted as meaning that it could not be satisfied as to whether it was in the best interests of J that the applicant be granted a visa. There is no ground of appeal alleging that the primary judge erred in interpreting or characterising the Tribunal’s reasons in the manner she did.

39    The effect of [1(a), (b) and (c)] of the Amended Notice of Appeal is that the Tribunal had erroneously failed to make a determination about whether the refusal of the appellant’s visa was in the best interests of J. The appellant’s written submissions were to the effect that [11.2] of Direction 65 mandates the making of a binary choice: refusal of the visa either is or is not in the best interests of the child. It was submitted that it was not open to the Tribunal, on the evidence before it, to fail to be satisfied one way or the other as to where J’s best interests lay. As in the proceedings below, the contentions raise firstly an issue as to the proper construction of Direction 65, and secondly an assessment of whether the Tribunal’s conclusion (being a lack of satisfaction) was open to it.

The proper construction of Direction 65

40    In oral submissions in reply, Counsel for the appellant acknowledged that, as a matter of construction, a decision-maker bound by Direction 65 may, after a conscientious consideration of the evidence, permissibly arrive at a conclusion that the best interests of a minor child may be neutral in the sense that the removal of the visa applicant from the child’s life may, on balance, be neither here nor there. The concession was a proper one. It is consistent with the following observations of French CJ, Kiefel, Bell and Keane JJ in Uelese v Minister for Immigration and Border Protection (2015) 256 CLR 203 at [67]:

.. There may also be cases where the evidence is such that the only determination which can be made in obedience to cl 9.3(1) of Direction 55 is that cancellation is neutral so far as the best interests of any minor child are concerned. In this regard, it is to be noted that cl 93(1) requires a ‘determination about whether cancellation is, or is not, in the best interests of the child’ (emphasis added). Sometimes the best decision ‘about’ whether cancellation is, or is not, in the best interests of the child may be that it is neither.

41    Like Paerau, Uelese was a case in which the Tribunal had before it a paucity of evidence bearing on the question of the best interests of two of the appellant’s children. For reasons that do not bear on this appeal, the Tribunal was found to have erred by precluding itself from receiving evidence relevant to the question. In determining the appeal, the High Court construed the predecessor to [11.2] of Direction 65 as now in force, being the same instrument construed by the Full Court of this Court in Paerau. Although the decision of the Tribunal was one involving the cancellation of a visa, nothing turns on the different decision-making context.

42    In Uelese, their Honours referred (albeit briefly and in passing) to the decision in Paerau without disapproval. Among the paragraphs cited was this passage from the judgment of Buchanan J at [27]:

In my respectful view, there could be no objection in any case to the AAT concluding that the best interests of a child did not weigh either for or against the cancellation of a visa, so long as the available material was assessed conscientiously. That is not the same as not stating a conclusion about the issue at all. Similarly, in a case where the evidence did not permit a proper conclusion about the issue, there could be no objection to the AAT saying so, as it did in the present case.

(original emphasis retained)

43    The appellant submitted that Paerau was wrongly decided. It is not necessary to determine that question. The conclusion of the plurality of the High Court in Uelese at [70] is enough to support the Minister’s contention on this appeal, a contention ultimately conceded by the appellant. Paragraph 11.2 of Direction 65 does not require the Tribunal to make a binary choice as to what is in the best interests of the child. There may be cases in which, as the plurality observed, the cancellation or refusal of a visa is neutral as far as the child is concerned. Insofar as the remarks are obiter, we respectfully agree with them and adopt them.

44    When a neutral conclusion is lawfully arrived at on the evidence, the primary consideration of the best interests of the chid will, strictly speaking, weigh neither for nor against the refusal of the visa. However, it should be recognised that the absence of a positive finding that the best interests of a child do not favour refusal will, in the final balance, render it more likely that a refusal decision will result. That is simply because the primary considerations specified in [11(1)(a)] and [11(1)(c)] of Direction 65 (which, by their nature, will weigh in favour of refusal in most cases) will not be outweighed by the countervailing primary consideration in [11(1)(b)]. That, in our view, explains the Tribunal’s statement at [80] of its reasons where it is said that its stated lack of satisfaction as to J’s best interests weighed “against a decision that Mr Nigam’s visa not be refused”. The manner of expression is clumsy, but not inexplicable when read in context.

The Tribunal’s conclusion was open

45    Counsel for the appellant sought to demonstrate error in the reasons of the Tribunal and of the primary judge by referring to the evidence that weighed in favour of the appellant remaining in Australia and playing a positive role in his daughter’s life. The submissions, with respect, fail to have proper regard to the evidence before the Tribunal that tended to suggest that the appellant had not in the past played a significant role in J’s life, and evidence to the effect that his willingness and capacity to play a positive role in her life in the future could not be reliably predicted. It was the very unpredictability of the appellant’s future conduct toward J that precluded the Tribunal from forming a state of satisfaction as to what would in fact occur if he were to remain in Australia. The predictability of the appellant’s conduct was a matter of importance because it had been shown, and the Tribunal so held, that J required constancy and stability in her life. The reasons of the Tribunal disclose a justifiable concern that the sporadic and unreliable attention of an unreliable father would not be in J’s best interests, and yet the constant and committed attention of a devoted father would. The Tribunal could not reliably predict into which of the two categories the appellant might fall.

46    The primary judge did not err in concluding that the Tribunal’s state of non-satisfaction was open to it. The case is not one in which the Tribunal has impermissibly shirked its obligation to make a determination “about” J’s best interests. It made a permissible determination “about” that subject which fairly reflects the state of the evidence before it.

47    The errors alleged at [1(a)] [1(b)] and [1(c)] of the Amended Notice of Appeal are not established.

Amended Notice of Appeal, [1(d)(i)]

48    This ground should also be rejected. The Tribunal gave careful consideration to the appellant’s ability to meet the optimal conditions referred to by Dr Alsop. That question consumed a good part of the Tribunal’s hearing for the very reason that the appellant’s own expert had expressed the view that it would be in J’s best interests if the optimal conditions could be met. The expert did not state that it would be in J’s best interests if the conditions could be met sporadically, unpredictably or only in part. Indeed, the optimal conditions were plainly directed to address J’s need to have stability in her life.

49    Moreover, the extent to which the appellant might be expected to fulfil the optimal conditions was one of the questions to which the evidence supplied no reliable answer. As we have said, the unpredictability of the appellant’s conduct as a father in the future (properly informed by an assessment of his conduct in the past) fairly explains the outcome. Whilst in most cases the Tribunal will be required, on the evidence, to evaluate the likelihood of future conduct of a visa applicant vis a vis a child, it is not required to do so when his or her future conduct toward the child is not fairly predictable.

50    The issue referred to in this ground of appeal was, as the primary judge correctly determined, subsumed in the generality of its overall inquiry.

Proposed ground [1(d)(ii)]

51    In making a determination about the best interest of J, the Tribunal was required to consider “any known views of the child (with those views being given due weight in accordance with the age and maturity of the child”: Direction 65, [11.4(f)]. In support of this proposed ground of appeal, it was submitted that the Tribunal did not discharge that obligation because it failed to make any positive finding of fact as to what J’s known views were.

52    The Minister sought to answer that contention by referring to the decision of the High Court in Bondelmonte v Bondelmonte [2017] HCA 8; (2017) 91 ALJR 402. That case concerned the proper construction of s 60CC(3)(a) of the Family Law Act 1975 (Cth) which required that “any views expressed by the child” be considered when determining where the best interests of the child lay. The Court held that although in some cases the expressed views of the child may be given decisive weight, s 60CC(3)(a) did not require that course to be taken (at [34], [36], [40], [43] and [48]).

53    We do not understand the appellant to raise or seek to raise a ground of review that would cut across the principle stated in Bondelmonte. The issue sought to be agitated is not whether or not decisive weight was or should have been afforded to J’s known views. The issue is whether the Tribunal failed to determine what J’s known views were and thereby failed to consider those views, as it was required to do by Direction 65.

54    The evidence concerning J’s views before the Tribunal included the following:

(1)    the evidence of J’s mother to the effect that J had become very attached to the appellant, that she had been very sad since finding out she may lose him and that J had told her that she missed the appellant;

(2)    the evidence of Dr Alsop who reported that J had told her that “she would feel sad if he were not a part of her life”;

(3)    the professional opinion of Dr Alsop to the effect that J loved her father and desired contact with him; and

(4)    the appellant’s evidence (unchallenged by the Minister) that J had told him she wanted to stay with him during the holidays and that she seemed sad that he may have to leave Australia, and that she had told him she wanted to spend time with him.

55    On the topic of J’s views, the Tribunal said:

72.    I accept that Mr Nigam’s daughter may very well have a natural affection for her father that, no matter the period of absence or limitations to contact, would cause her to wish for his release and for him to return to the family fold. Mr Nigam’s daughter is young, and if Mr Nigam was able to act as he says he will, he could play a positive parental role in her life for many years to come.

…

76.    I accept that being separated from her father may cause some difficulty however I am not convinced the extended separation from her father has had a significant negative effect on her so far. …

56    These comments, it was submitted, were speculative and remained at the level of hypothesis. In addition, as the Tribunal had not referred in its reasons to the evidence about J’s known views, it was submitted that an inference arises that it failed to take the evidence into account. Reliance was placed on Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16; (2014) 309 ALR 67 at [33].

57    In our view, the appellant’s complaint fails to have proper regard to the Tribunal’s reasons, fairly read as a whole. The reasons were expressed to have been founded upon “all of the evidence” (at [51]). The Tribunal noted that on the single occasion that the appellant and his daughter had “one on one” contact together, they had a “wonderful time”. Critically, it said (at [53]):

The evidence is very clear that Mr Nigam’s daughter requires stability and routine. Any change to her daily activities and patterns causes her great distress.

58    The Tribunal’s acceptance that J “may very well have a natural affection” for the appellant, read in the context of all of these findings, is not to be understood as speculation or a non-finding about J’s views. The phrase “may very well have”, read in the context, is an indication that the weight to be afforded to J’s natural affection for her father, and her desire to have her father present in her life, were diminished in all of the circumstances, especially the circumstance that the Tribunal could not reliably predict whether J’s desires for future involvement with her father would be fulfilled.

59    The Tribunal was not required to set out in its reasons a line by line recitation of all of the evidence that bore on the question of J’s known desires: Re the Minister for Immigration and Multicultural Affairs of the Commonwealth of Australia; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407 at [65] McHugh J. The Tribunal clearly considered J’s known views, insofar as the evidence of others shed light on them. Its failure to expressly refer in its reasons to any particular aspect of the evidence or every nuance of the appellant’s submissions concerning her views does not support an inference that it failed to consider the issue.

GROUND 2

60    This ground should be rejected. The conclusion arrived at by the Tribunal was that it was unable to make the very finding urged upon it by the appellant, on a question that had formed the subject of a considerable body of evidence adduced by the appellant himself.

61    It was submitted that the appellant was entitled to proceed on the assumption that the delegate’s conclusion that it was in J’s best interests that the visa not be refused would remain undisturbed. The written submissions relied upon by the Tribunal suggest that no such assumption was in fact made. The question of where J’s interests lay was identified in the submissions as a “critical issue of fact” for the Tribunal to determine, notwithstanding that the delegate had previously made a positive determination on the question.

62    It was then suggested that the Minister had conceded before the Tribunal that it was in J’s best interests that the visa not be refused. The concession was said to have been made in the following sentence contained in the Minister’s written submissions:

52.    The Minister contends that whilst the best interest of the applicant’s daughter does not favour refusal. This consideration does not outweigh the Principles and considerations weighing in favour of refusal.

63    We do not consider that submission to amount to a concession of the kind contended for by the appellant, such that the question of where J’s best interests lay did not fairly arise before the Tribunal. All that is said by that passage is that the Minister did not assert that it was in J’s best interests that the visa be refused. As we have said earlier in these reasons, that is not the same as a statement to the effect that interests of the child would be best met if the visa was not refused. Even if we are wrong in characterising the Minster’s concession in that way, we would not regard the single sentence as giving rise to a legitimate assumption by the appellant that the Tribunal would decide the question of J’s best interests in a manner that assisted his case, such that an obligation to afford procedural fairness would arise if a different conclusion was to be reached.

64    Moreover, the evidence adduced by the appellant before the Tribunal cannot be reconciled with the contention now made that he did not contemplate the Tribunal arriving at a different conclusion to that arrived at by the delegate. The expert evidence of Dr Alsop was concerned not only with the question of the extent to which J’s best interests would be served by the appellant remaining in Australia. It was concerned just as much with the question of whether her interests would be so served.

65    In the circumstances, the learned primary judge was correct to say that the appellant’s submission reduces to a complaint that the Tribunal did not disclose its mental processes to him. The Tribunal was under no obligation to foreshadow to the appellant the state of non-satisfaction expressed at [79] of its reasons at any time prior to its decision being made.

66    The primary judge did not err in finding there had been no denial of procedural fairness.

Conclusion

67    None of the grounds of appeal is established. The appeal should be dismissed, with costs.

Associate:

Dated:    16 August 2017