FEDERAL COURT OF AUSTRALIA

Minister for Home Affairs v NBCM [2019] FCAFC 199

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    Set aside the decision of the primary judge and in lieu thereof:

(a)    dismiss the application for judicial review; and

(b)    order the applicant in those proceedings pay the costs of the first respondent in those proceedings.

3.    The first respondent pay the appellant’s costs.

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

REASONS FOR JUDGMENT

THE COURT:

1    On 30 April 2018 a delegate of the then Minister for Home Affairs notified NBCM that she had exercised her discretion to cancel NBCM’s visa under s 501(2) of the Migration Act 1958 (Cth). That section provides:

501     Refusal or cancellation of visa on character grounds

Decision of Minister or delegate – natural justice applies

…

(2)    The Minister may cancel a visa that has been granted to a person if:

(a)    the Minister reasonably suspects that the person does not pass the character test; and

(b)    the person does not satisfy the Minister that the person passes the character test.

2    The “character test” referred to in s 501(2) is set out in s 501(6), which includes:

Character test

(6)    For the purposes of this section, a person does not pass the character test if:

(a)    the person has a substantial criminal record (as defined by subsection (7)); or

…

3    The meaning of “substantial criminal record” is provided by s 501(7). It was not in dispute before this Court that NBCM had “a substantial criminal record” and did not pass the “character test”. Indeed, those matters have never relevantly been in dispute. The substantial criminal record arose as a result of domestic violence offences committed mostly against his partner, NBDM.

Merits Review IN The Tribunal

4    NBCM sought review of the delegate’s decision to cancel his visa in the Administrative Appeals Tribunal. His matter was heard on 10 July 2018. The Tribunal affirmed the delegate’s decision on 23 July 2018.

5    The Tribunal’s reasoning is set out below where relevant in dealing with the grounds of appeal.

Judicial review in the Federal Court of Australia

6    NBCM sought judicial review of the Tribunal’s decision in this Court under s 476A(1)(b).

7    On 28 June 2019, the primary judge made orders allowing the application for judicial review, quashing the Tribunal’s decision and issuing a writ of mandamus requiring the Tribunal to make a decision according to law on whether NBCM’s visa should be cancelled.

8    The primary judge concluded at J[76] that the Tribunal erred in three ways:

(1)    failing to consider and make a determination about whether cancellation was or was not in the best interests of NBCM’s three minor grandchildren, as opposed to NBCM’s two minor children;

(2)    taking into account an irrelevant consideration; and

(3)    failing to consider the factor prescribed by cl 9.2(4)(d) of Direction No 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Direction 65).

9    Her Honour’s reasoning is set out below where relevant in dealing with the grounds of appeal.

The Appeal

10    The Minister contended that each of the primary judge’s three conclusions set out above was affected by error. For the reasons which follow those contentions must be accepted.

Ground 1 – Best interests of minor grandchildren

11    The primary judge concluded that the Tribunal failed to make findings about the interests of both the minor children and the minor grandchildren. Her Honour considered that the Tribunal’s focus at T[81] on NBDM’s statutory declaration suggested that the Tribunal only made findings about the interests of NBCM’s and NBDM’s two minor children and not their three minor grandchildren, who were the children of their daughter, NBEM: at J[63].

12    NBDM’s statutory declaration, the subject of T[81], referred to by the primary judge at J[63], included:

16.    [NBCM] has always been a loving father to all of our children and cares deeply for their safety and wellbeing. [NBCM] is, and always has been a very involved father and I know that all of our children love spending time with him. He has never been violent towards any of our children, and I always encourage them to spend time with their father.

17.    [NBCM] has a loving relationship with our older children, [C1], [C2] and [C3]. They all adore their father and we are in the process of rebuilding our relationship and moving forward together as a united family.

18.    Although [NBCM] is currently living separately from our family, it has not stopped him from being an active and engaged father to our youngest children, [C4] and [C5]. I know that they want to live together as a family, which is something that we want to occur should [NBCM’s] migration status be sorted out.

19.    Our son, [C5] is 6 years old. [NBCM] has a strong bond with [C5]. He was born prematurely and has learning difficulties that we are slowly beginning to discover and will need to take measures to deal with. I know that if [NBCM] were forced to return to New Zealand, it would be exceptionally difficult for [C5] to be separated from his father, and I do not know how I would explain that to him.

20.    As I am currently working late nights, I am grateful for [NBCM’s] continued presence and support. [NBCM] has been able to help take our children to school and help take them to their extracurricular activities.

21.    [NBCM] and I are also proud grandparents to our daughter, [C2’s] children, [G1] who is 6, [G2] who is 3, and [G3] who is 1. [NBCM] and I love our grandchildren, and [NBCM] in particular is very engaged with them and has a very strong bond with them all. I do not know how we would be able to explain to them that their grandfather has moved away.

Concerns for the Future

22.    I am concerned that if [NBCM] is deported, he will be deprived of having a relationship with his children and grandchildren. It is my wish that my children and grandchildren grow up having a close relationship with their father and grandfather, something which they already have.

13    The primary judge stated at J[62] and J[63]:

[62]    I turn then to consider whether the Tribunal made findings about the best interests of the minor grandchildren. It is clear that the Tribunal was aware of the need to consider the interests of the minor grandchildren as well as the minor children and refers, in summary fashion, to evidence about [NBCM’s] relationship with each of those groups of children: see [79] and [80] of the Tribunal’s reasons. At [81] the Tribunal referred to independent evidence that “confirms the positive parental role that [NBCM] plays in the children’s lives and his potential to support them emotionally and contribute to their upbringing” and quoted a part of NBDM’s Declaration that it said confirmed “the involvement of [NBCM] in their Children’s lives”

[63]    However, I do not accept that, when read together, those paragraphs demonstrate that the Tribunal made findings about the interests of both the minor children and the minor grandchildren. Rather, the Tribunal’s focus at [81] on NBDM’s Declaration suggests that the Tribunal made findings about the interests of the minor children only. In that part of NBDM’s Declaration referred to by the Tribunal, NBDM clearly only speaks of [NBCM]’s relationship with his own children. The independent evidence referred to in the Tribunal’s footnote to [81] does not alter this conclusion. That material predominantly refers to [NBCM]’s relationship with his own children and refers only in passing, in two of the statements cited, to the grandchildren. The Tribunal did not consider the interests of the grandchildren at [81] of its reasons. Nor was any such finding made by the Tribunal at [82]-[83] of its reasons. The Tribunal recognised the grandchildren as a category of children whose interests would be affected by the decision but then failed to make any determination about their interests as required by the Direction.

14    The better reading of the Tribunal’s reasons is that it did consider and make findings about the interests of NBCM’s three minor grandchildren.

15    Before turning to the Tribunal’s reasons, it is useful to recall the approach which should be taken to the decisions of administrative decision-makers. In Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272, Brennan CJ, Toohey, McHugh and Gummow JJ said that:

… the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.

16    The reasons of an administrative decision maker are not to be “construed minutely and finely with an eye keenly attuned to the perception of error”: Wu at 272.

17    The relevant parts of the Tribunal’s reasons were (footnotes omitted):

[78]    The evidence before the Tribunal is that [NBCM] is the father of two Australian citizen minor children (aged 14 years and 7 years) and grandfather to his daughter’s (NBEM) three children (aged 6 years, 3 years and 1 year).

[79]    [NBCM’s] evidence to the Tribunal and in his Statutory Declaration is that he has a close and loving relationship with his two youngest children and is actively involved in their upbringing. He sees them on an almost daily basis and will pick them up from school and help with their homework. He often takes them to church, cultural events and Boys’ and Girls’ Brigade. They stay with him at his home in Darlinghurst or he will go to see them at their home in Liverpool.

[80]    In her evidence to the Tribunal, NBEM confirmed that [NBCM] has a close relationship with her younger siblings and also with her three children. He sees them at least once a week and does many activities with them including taking them to the Australian Open earlier this year.

[81]    Independent evidence before the Tribunal confirms the positive parental role [NBCM] plays in the children’s lives and his potential to support them emotionally and contribute to their upbringing. The involvement of [NBCM] in their children’s lives was confirmed in the Statutory Declaration of NBDM dated 12 December 2017:

NBCM has always been a loving father to all our children and cares deeply for their safety and wellbeing. NBCM is, and always has been a very involved father and I know that all of our children love spending time with him. He has never been violent towards any of our children, and I always encourage them to spend time with their father.

[82]    In the [Minister’s] SFIC, the [Minister] accepts on the basis of the evidence that the best interests of minor children in Australia weigh in favour of [NBCM’s] visa not being cancelled but that minimal weight should be afforded to this consideration in view of the not insignificant risk of his re-offending [the Minister’s SFIC at paragraph 38]. In oral submissions at the hearing, the [Minister] relied on evidence given by [NBCM’s] daughter (NBEM) that when she was growing up, she witnessed the harm caused by her father to her mother and she was constantly worried when her parents consumed alcohol because it always led to a fight. The [Minister] submitted that the disregard [NBCM] demonstrated towards his children who frequently witnessed him assault their mother indicates that this Primary Consideration cannot weigh in his favour and can only be a neutral factor in the exercise of the discretion.

[83]    The Tribunal finds on the basis of the evidence before it, particularly the impact on [NBCM’s] two minor children, that Primary Consideration 2, weighs marginally against the cancellation of [NBCM’s] visa.

18    Three matters in particular indicate that the Tribunal separately considered and made findings concerning the three minor grandchildren.

19    First, at T[78] and T[80], the Tribunal expressly referred to the three grandchildren. The Tribunal expressly referred at T[80] to the fact that NBCM’s daughter, NBEM, confirmed that NBCM had a close relationship with her three children (NBCM’s grandchildren). Accordingly, the Tribunal clearly had both the children and grandchildren in mind.

20    Secondly, the structure of the Tribunal’s reasons indicates that it intended to address the interests of both of NBCM’s minor children and his three minor grandchildren:

(1)    At T[80], the Tribunal noted NBCM’s close relationship with his three minor grandchildren.

(2)    At T[81], the Tribunal then noted NBCM’s positive parental role with his own two minor children. There was a debate between the parties about whether or not T[81] should be read as confined to the minor children. The Minister submitted that it should be read as addressing both the minor children and the minor grandchildren. T[81] contained a footnote which cited the statements of four independent witnesses. At least two of those statements addressed both the children and the grandchildren. The better reading of T[81], however, is that it was intended to address NBCM’s children only.

(3)    At T[82], the Tribunal next noted the Minister’s concession that the best interests of minor children in Australia weighed in favour of NBCM’s visa not being cancelled. As is indicated below, this concession expressly concerned both minor children and minor grandchildren.

(4)    At T[83], the Tribunal stated its ultimate finding: that the interests of minor children in Australia weighed marginally against cancellation, “particularly” the interests of NBCM’s two minor children. The Tribunal at T[83] accepted the Minister’s concession. The word “particularly” indicates that the Tribunal considered the interests of the two minor children were of more weight in this respect than the interests of the three minor grandchildren. It necessarily follows that the Tribunal considered the interests of both the minor children and the minor grandchildren and concluded that they differed to a degree.

21    Thirdly, the Tribunal’s express reference at T[82] to the Minister’s concession drawn from [38] of the Minister’s Statement of Facts, Issues and Contentions (SFIC) is significant. That document stated (emphasis added):

37.    The Minister accepts that [NBCM] is the father of two minor children and [grandfather of] three grandchildren who are all Australian citizens.

38.    On the basis of evidence provided by [NBCM], [NBDM] and their eldest daughter [NBEM], the Minister accepts that the best interests of minor children in Australia weigh in favour of [NBCM].

39.    However, the Minister contends that minimal weight should be afforded to this consideration in circumstances where [NBCM] poses a not insignificant risk of re-offending against [NBDM], potentially exposing minor children to domestic violence against their mother/grandmother. Further [NBCM’s] children were included in at least one AVO taken out against him.

22    Although the Tribunal only expressly referred at T[82] to [38] of the Minister’s SFIC, its reference at T[82] to “minimal weight” being “afforded to this consideration” is clearly a reference to the Minister’s contention at [39] of the SFIC.

23    In addition to those three matters, a further relevant matter is the way in which the proceedings were conducted before the Tribunal. NBCM’s SFIC made submissions which addressed the minor children and minor grandchildren together. The SFIC did not suggest that there was a relevant difference between the interests of the minor children and the minor grandchildren which the Tribunal needed to address. Rather, the case was conducted on the basis that their interests were equivalent and lay in them not being separated from NBCM.

24    At the hearing, NBCM relied on Uelese v Minister for Immigration and Border Protection (2015) 256 CLR 203 and submitted that the Tribunal failed to consider the interests of NBCM’s minor children and minor grandchildren separately. The primary judge dealt with this issue and rejected it: J[60] and [61].  No cross appeal was filed. 

25    In any event, as mentioned at [20(4)] above the Tribunal did in fact separately consider the interests of NBCM’s minor children and minor grandchildren, as shown by its reasoning from T[79] to T[82], and its conclusion at T[83] which implicitly found that their interests differed.

26    Accordingly, Ground 1 is made out.

Ground 2 – Non-compliance with Direction 65

27    Ground 2 focusses upon the Tribunal’s reasoning at T[82], set out above.

28    Of the Tribunal’s reasoning, the primary judge stated:

[69]    The question that then arises is whether the Tribunal was entitled to take into account some of the matters referred to at [82] in reaching its conclusion at [83]. At [82] of its reasons, the Tribunal records the Minister’s written and oral submissions to it on the weight that should be given to the second primary consideration: first, the Minister’s written submission that, while on the basis of the evidence the best interests of the minor children weigh in favour of not cancelling the Visa, minimal weight should be afforded to this consideration in the view of the “not insignificant risk of re-offending”; and secondly, the Minister’s oral submissions and his reliance on the evidence of NBEM that when she was growing up she witnessed the harm caused by [NBCM] to NBDM and his submission that the disregard [NBCM] showed to his children, who frequently witnessed him assault NBDM, indicated that this primary consideration could not weigh in [NBCM’s] favour and could only be a neutral consideration. The Minister accepted that it could be inferred that the Tribunal relied on that submission in coming to its conclusion at [83] of its reasons.

[70]    The Minister submitted that in referring to the adult daughter’s evidence the Tribunal was identifying, by reference to a witness, the type of harm to which the minor children, who did not give evidence, could be exposed. The Minister said that the Tribunal had made detailed findings about the children being victims of [NBCM’s] offending because they witnessed [NBCM’s] conduct and that, in referring to NBEM’s evidence, it was “amplifying the experience of children who witness domestic violence”. But it is difficult to view the Tribunal’s reference to NBEM’s evidence in that way. While a neat characterisation, the Tribunal provides no explanation of how that evidence fits in to its consideration of the issue before it or how it provided support for the conclusion it reached. It is not at all clear what relevance NBEM’s evidence, who by that time was an adult, had to the issue it was considering: the best interests of the minor children affected by the decision. Indeed that evidence could have little or no relevance.

[71]    In my opinion, in relying on NBEM’s evidence as one of the matters that went to its ultimate conclusion, the Tribunal took into account an irrelevant consideration. While I accept that [NBCM’s] prior conduct and any likely future conduct, and the impact of that conduct on the children may be taken into account, where relevant, when considering the best interests of the minor children (see cl 9.2(4)(c) of the Direction), I cannot see how NBEM’s evidence was relevant to that factor.

29    As noted above, T[82] expressly referred to the Minister’s SFIC, which included the submission made at [39] of the Minister’s SFIC set out at [21] above.

30    It was open to the Tribunal to take the view that NBCM’s past conduct was relevant to the best interests of minor children. Past events may be used to draw inferences as to future conduct: Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559 at 575. It was not irrational to do so in the present case. The Minister had submitted that NBCM had disregarded the interests of his children who had witnessed him assault their mother. The Tribunal evidently accepted that submission in reaching the conclusion at T[83] that, although the interests of minor children weighed against cancellation, they did so only “marginally”.

31    NBCM submitted that, although much of Direction 65 focussed on the culpability of the visa-holder, paragraph 9.2 was different and focussed only on the best interests of minor children. As developed in oral argument, NBCM submitted that the Tribunal had taken into account, in considering the best interests of minor children, the fact that NBEM had witnessed her father causing her mother harm and that this consideration was not conceivably relevant to the issue to which paragraph 9.2 was directed, namely the interests of minor children. This submission proceeds on a misunderstanding of the Tribunal’s reasons. The sentence at T[82] concerning NBEM’s experience is clearly directed to the issue raised in the preceding sentence, namely that NBCM might re-offend and that, if he did, there was a possibility that he might be violent in front of his minor children as he had been in the past.

32    NBCM properly did not submit that NBEM’s experience was a mandatory irrelevant consideration in the sense described in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39 to 41.

33    The Tribunal’s use of NBEM’s evidence in considering the interests of minor children was orthodox. The evidence was relevant. It is well-settled that the weight to be given to the evidence was a matter for the Tribunal, and not for a court on an application for judicial review: Peko-Wallsend at 41; see also: DCP16 v Minister for Immigration and Border Protection [2019] FCAFC 91 at [87] (Beach, O’Callaghan and Anastassiou JJ).

34    Ground 2 must succeed.

Ground 3 – Clause 9.2(4)(d)

35    The primary judge concluded that the Tribunal failed to take into account the factor prescribed by cl 9.2(4)(d) of Direction 65. That clause provides:

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

…

(4)    In considering the best interests of the child, the following factors must be considered where relevant:

…

(d)    The likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;

…

36    Direction 65 contained three “primary considerations”, the second of which was “the best interests of minor children in Australia”: paragraph 9(1). It contained five “other considerations”, the second of which was the “strength, nature and duration of ties”: paragraph 10(1).

37    The Tribunal had stated, when considering the second of the “other considerations”:

[109]    [NBCM’s] family, particularly his younger children and grandchildren, will be significantly impacted if he is returned to New Zealand as they have a close bond with him and he is involved in their daily lives and upbringing. There is no evidence to indicate that [NBCM’s] family would not be able to maintain regular contact with him via phone and other forms of communication if he returns to New Zealand. There is no evidence that his family members would be unable to visit [NBCM] in New Zealand, finances permitting.

38    The primary judge stated:

[75]    I accept [NBCM’s] submission that the finding [at T[109]] in relation to this consideration establishes that the Tribunal failed to take into account the factor in cl 9.2(4)(d) of the Direction in considering the second primary consideration, the best interests of the minor children. The Tribunal clearly formed a view about the relevance of the likely effect of separation on the children, as is evident from the pivotal role that matter played in the Tribunal’s consideration of [NBCM’s] family and social links, and yet did not have regard to that matter as part of its consideration of the best interests of the minor children. So much is clear from a review of the Tribunal’s reasons at [77]-[83] ...

39    The fact that the Tribunal expressly referred to the effect of separation of NBCM from minor children when considering, in the context of the second of the “other considerations”, the “strength, duration and nature” of family or social links, does not of itself establish that the Tribunal did not take that separation into account when considering the best interests of minor children in relation to the second primary consideration. The Tribunal’s reasons must be read as a whole and consistently with the principle articulated in Wu, referred to earlier.

40    Reading the Tribunal’s reasons in that way leads to the conclusion that the fact of separation underpinned the Tribunal’s consideration of the best interests of the minor children and grandchildren at T[78] to [83]. It certainly could not be said that it did not consider separation at all, because T[109] expressly refers to separation. It is unlikely that the Tribunal had separation in mind when considering the second of the “other considerations” but did not have it in mind when considering the second “primary consideration”. It was, amongst other things, the fact of that separation which meant that the second primary consideration weighed in NBCM’s favour against visa cancellation. The Tribunal, at T[81], expressly referred to NBDM’s statutory declaration. This included:

Our son, [C5] is 6 years old. [NBCM] has a strong bond with [C5]. He was born prematurely and has learning difficulties that we are slowly beginning to discover and will need to take measures to deal with. I know that if [NBCM] were forced to return to New Zealand, it would be exceptionally difficult for [C5] to be separated from his father, and I do not know how I would explain that to him.

…

[NBCM] and I are also proud grandparents to our daughter, [C2’s] children, [G1] who is 6, [G2] who is 3, and [G3] who is 1. [NBCM] and I love our grandchildren, and [NBCM] in particular is very engaged with them and has a very strong bond with them all. I do not know how we would be able to explain to them that their grandfather has moved away.

41    The Tribunal did not fail to consider, when considering the second primary consideration, that the consequence of visa cancellation was that NBCM would be separated from his two minor children and three minor grandchildren. Its lack of express reference, when considering the second primary consideration, to the fact that NBCM would be separated from his minor children and grandchildren if his visa were cancelled is explained by that fact being so obvious it went without saying.

42    Ground 3 must also succeed.

Conclusion

43    The appeal should be allowed, the orders of the primary judge set aside and, in lieu thereof, the application for judicial review to the Federal Court of Australia should be dismissed with costs.

Associate:

Dated:    18 November 2019