Federal Court of Australia

Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 172

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The orders made by the primary judge on 2 March 2021 in WAD 258 of 2020 be set aside and in lieu thereof it be ordered that the decision of the respondent dated 13 October 2020 be set aside and the matter be remitted to the respondent for determination according to law.

3.    The respondent do pay the costs of the appeal and of the proceedings before the primary judge such costs to be assessed by a registrar on a lump sum basis in accordance with the Court's Costs Practice Note (GPN-COSTS) if not agreed.

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

REASONS FOR JUDGMENT

THE COURT:

1    Mr Bettencourt came to Australia from Portugal as an 8-year old. He has lived here ever since. He is one of 10 siblings and has an extended family in Australia. He is now 41 years of age. He has two young children of his own. They are of primary school age.

2    Despite living only in Australia since he was a child, Mr Bettencourt has remained a citizen of Portugal. He has resided in this country as the holder of a permanent visa.

3    In 2019, Mr Bettencourt was convicted of possessing child exploitation material and sentenced to 14 months imprisonment. By reason of the term of his sentence being more than 12 months he failed the character test for the purposes of s 501 of the Migration Act 1958 (Cth). As required by s 501(3A) of the Act, the Minister cancelled his visa. The Minister then invited Mr Bettencourt to make representations about revocation of the original decision. Section 501CA(4) of the Act provides that the Minister may revoke the original decision to cancel a visa under s 501(3A) if representations are made in accordance with such an invitation and the Minister is satisfied that the person passes the character test or is satisfied that 'there is another reason why the original decision should be revoked'.

4    Lawyers acting on behalf of Mr Bettencourt made detailed representations to the Minister setting out a number of reasons why the original decision should be revoked. The representations took the form of submissions by way of letter (Submissions) and many attachments, including statements of support from a number of family members.

5    The Submissions were arranged by reference to the terms of Direction No 79 (Direction), being the terms of a direction made by the Minister pursuant to s 499 of the Act. Within the preamble to the Direction, its purpose is described as being to guide decision-makers in performing functions or exercising powers under certain related provisions of the Act. They include s 501CA. The Direction does not bind the Minister in the personal performance of the statutory obligation to form the state of satisfaction required by s 501CA(4) when a person makes representations in accordance with an invitation. However, it is an instrument of policy that is known to be used in such cases and indeed its structure was followed by the Minister in the reasons that he provided in Mr Bettencourt's case.

6    One of the primary considerations specified in the Direction is the best interests of minor children in Australia. The Direction says that decision-makers must take into account the primary and other relevant considerations relevant to the individual case. It also says that in applying the considerations 'information and evidence from independent and authoritative sources should be given appropriate weight' and that primary considerations 'should generally be given greater weight than the other considerations'.

7    Under the heading 'Primary Consideration: Best Interests of Minor Children in Australia Affected by the Decision', the Submissions described the circumstances of Mr Bettencourt's two children, including that they share an extremely close relationship with their father. It then set out a number of quotations from the statements of support and from a statement provided by Mr Bettencourt concerning the relationship and the effect of separation that would be the necessary consequence if the visa cancellation was not revoked and Mr Bettencourt was removed from Australia.

8    The Submissions then said: 'There is a plethora of research that demonstrates the detrimental physical, emotional and psychological impact that ongoing separation from one or both parents has on a young child'. Quotations were provided from three public sources of expert information. They included:

With prolonged parental absence, children may become passively compliant with care staff, giving the appearance of having 'settled in' to their new environment. Disturbingly, this can signify that the child has detached from the parents and is now living in a perceived state of 'fear without resolution'. Children reunited while they are in the early separation protest phase usually fare well. Children in despair may respond to the reappearance of their parent with hostility or ambivalence, taking many weeks to rebuild their bond. Children who have detached from their parents may reject their approaches or treat them as strangers. Additionally, when children interpret themselves as 'abandoned' by parents, they may develop a profound sense that they have done something wrong to cause their caregiver to leave, igniting shame and complex emotions that can damage the lifelong relationships with themselves and others.

…

Studies have shown that if a child suddenly loses a parent, either through death, abandonment, or a prolonged separation, the child experiences intense fear, panic, grief (a combination of sadness and loss), depression, helplessness and hopelessness. The child has lost his lifeline, and often his sense of self. The world, and life, become disorganized and terrifying … Children actually blame themselves for a parent's disappearance. The child naturally concludes: 'I must have done something wrong, otherwise my parent wouldn't have left. I must be bad.' The child feels tremendous rage at the parent for leaving, but since it cannot be expressed to the parent, it becomes a constant ache inside or depression (anger turned against the self) or the child will act out aggressively. A child who suddenly loses a parent finds it hard to trust others in relationships; finds love dangerous; (the person could leave), and feels constant longing for the parent.

9    These materials provided the foundation for submissions which followed. They included the following:

Similarly, the best interests of [the children] weigh heavily in favour of revocation. Mr Bettencourt has provided love, support and guidance to his two young [children] by being physically present in their lives, and the impact on them if he were to be removed would be detrimental. They would have to choose between their lives in Australia, the only home they have ever known, or being with their father who they adore and deeply miss.

[The children] are two young Australian citizens who need their father to help guide them through their childhood and teenage years. If permitted to re-enter the Australian community and return to his family, Mr Bettencourt stands to play a positive parental role in both [their] lives for a significant period of time … during which Mr Bettencourt needs to be able to support his [children].

10    Other submissions were to the effect that the mother of the children, from whom Mr Bettencourt had separated on amicable terms since his conviction, would not be able to take them to Portugal.

11    Manifestly, the Submissions advanced the expert materials to support the claim that prolonged and long term harm to the two children would result from their permanent separation from their father and that was 'another reason' why the cancellation of Mr Bettencourt's visa should be revoked. Based on that (and other) claims it was submitted that the best interests of the children 'weigh heavily' in favour of revocation.

The decision by the Minister

12    The Minister was not satisfied that there was another reason why the cancellation of Mr Bettencourt's visa should be revoked. The Minister concluded that as he was not so satisfied, the statutory power to revoke the visa cancellation was not enlivened. Reasons were provided by the Minister (there being a statutory requirement to provide reasons for a decision to not revoke a decision to cancel a visa: see s 501G of the Act).

The reasons of the Minister

13    As to the best interests of the two children, the reasons of the Minister said:

[14]    I have considered that Mr BETTENCOURT has two Australian citizen minor [children] … aged 10 and … aged four.

[15]    I have also considered Mr BETTENCOURT's submission that he resided with [his children] prior to his incarceration, shares a very close bond with each of them, maintains regular phone contact with them while incarcerated and that both children are distressed at their current separation from him.

[16]    I have taken into account that [the elder child] writes that [they miss their] dad and feels sad that [they] cannot see him.

[17]    I have had regard to the submission from the children's mother … that [the children] miss their father and are upset by their separation, that they will be distraught should he be removed from Australia and that [she] is not financially able to facilitate to travel to Portugal for [the children].

[18]    I have taken into account the submission from [the children's] maternal grandmother … that the children will be mentally and physically affected should their father be removed from Australia.

[19]    I note that the sentencing Judge acknowledged that Mr BETTENCOURT was close with [his children].

[20]    I have had regard to submissions from several of Mr BETTENCOURT's siblings and friends who describe him as a great father, who is adored by his children, nieces and nephews.

[21]    There is no evidence before me that [the children] will relocate to Portugal in the event of a non-revocation decision.

[22]    I find that it is in the best interests of [the children] that I revoke the original decision to cancel Mr BETTENCOURT's visa, to enable them to have a relationship with their father in Australia that includes personal contact.

[23]    I have also considered that Mr BETTENCOURT has 15 Australian citizen minor nieces and nephews residing in Australia.

[24]    I note Mr BETTENCOURT's submission that he is close to all his nieces and nephews and in particular with his nephew …, who is five years old and has autism. He sees [his nephew] five times a week and they share a close bond.

[25]    I have considered a submission from [the nephew's mother] and Mr BETTENCOURT's sister, who confirms that [he] does not usually interact with adults but is close to his uncle and is struggling without him. I have given weight to the Autism Spectrum Disorder Assessment Report dated 22 November 2016 confirming that [his nephew] presents with a moderate to severe level of autism with a severity level three for social communication.

…

[28]    I find that it is in the best interest of Mr BETTENCOURT's nieces and nephews, in particular [his nephew with autism], that I revoke the original decision to cancel Mr BETTENCOURT's visa, however I have given this consideration less weight, as there is no information before me which indicates that these children do not have parents of their own to care for them.

…

[106]    In considering, in light of Mr BETTENCOURT's representations, whether I was satisfied that there is another reason why the original decision should be revoked, I gave primary consideration to the best interests of Mr BETTENCOURT's minor Australian citizen children … and I found that their best interests would be served by the revocation of the original decision.

Application to review for alleged jurisdictional error

14    As the decision was made by the Minister personally, the statutory administrative review on the merits that would have been available if the decision was made by a delegate of the Minister did not apply. Mr Bettencourt sought review of the Minister's decision in this Court on the basis of alleged jurisdictional error. The jurisdiction to be exercised was that circumscribed by s 476A of the Migration Act and therefore, relevantly for present purposes, was confined to review for jurisdictional error. Mr Bettencourt's application alleged two errors, one of which was to the effect that the Minister failed to exercise his statutory jurisdiction by failing to give proper, genuine and realistic consideration to the representations made as to the likelihood of the children suffering long term harm due to a lack of a meaningful relationship with their father if he were removed from Australia.

15    The primary judge dismissed the review application. In doing so, his Honour made the following four findings (at [29]) as to the matters raised by the claim that the Minister had failed to give consideration to the long term harm to the children if their father was removed from Australia:

(1)    I consider that the Minister's reasons, read fairly, indicate that he proceeded on the basis that there would be a long term separation between Mr Bettencourt and his minor children and that this would have a detrimental impact on them.

(2)    I do not infer that the Minister did not, in making his decision, consider the academic literature dealing, amongst other matters, with the impact of long term separation between parent and child.

(3)    I infer that the brevity with which the conclusions were expressed, particularly in [22] and [106], reflects the fact that the Minister accepted that the interests of Mr Bettencourt's minor children strongly favoured revoking the visa cancellation decision.

(4)    I am not satisfied that the Minister did not give real and genuine consideration to the representations made concerning the interests of his two minor children.

16    In the course of reasons to support finding (2), his Honour said (at [31]):

Reading the reasons as a whole, I would not infer that the academic literature was ignored. Rather, a reading of the reasons as a whole, suggests that the Minister proceeded on the basis that it was to be accepted that long term separation of minor children from a parent was likely to have harmful consequences. It was not necessary to refer to the academic literature because it was implicitly accepted as accurate.

17    As to findings (3) and (4), his Honour said (at [32]-[33]):

… the Minister accepted that it was in the best interests of Mr Bettencourt's two minor children that the cancellation decision be revoked, 'to enable them to have a relationship with their father in Australia that includes personal contact'. As the passages set out at [28] and summarised at [30] above indicate, the Minister considered and engaged with the significance of the harm to Mr Bettencourt's [children] as a result of Mr Bettencourt's removal and their inability to relocate to Portugal.

Whilst it could have been more clearly expressed, I conclude that the Minister accepted that long term separation between Mr Bettencourt and his children was likely and that the long term separation would have harmful consequences to the children. The Minister accepted that the interests of Mr Bettencourt's minor children favoured cancellation: at R[22] and R[106]. In my view, R[22] should be read as accepting the various matters set out in R[15] to [21] …

18    On that basis, his Honour concluded: 'I am not satisfied, reading the reasons as a whole, that the Minister did not give real and genuine consideration to the likelihood of the applicant's children suffering long term harm'.

Appeal by Mr Bettencourt

19    Mr Bettencourt now brings an appeal in which the sole ground is expressed in the following terms:

The Court erred in failing to find that the Respondent's decision dated 2 March 2021 was affected by jurisdictional error or that he constructively failed to exercise his jurisdiction as required by section 501CA(4) of the Migration Act 1958 (Cth) by failing to give proper, genuine and realistic consideration to the Appellant's representations regarding the best interests of his two children.

20    The following three particulars are given of the ground:

The Respondent had before him a submission which included lengthy references to academic literature on the adverse impact of long term separation of a child from a parent; submission dated 11 May 2020 at [102]-[109].

There is no evidence in the Respondent's decision that the Respondent gave genuine consideration to the Appellant's representations on the impact of long term separation of a child from a parent.

The Respondent's failure to refer to the Appellant's submissions and the academic literature was material to weighing up the best interests of the children when making his decision, and should have been set out as a fact material to his decision and findings.

21    As to the academic literature referred to in the particulars, the key passages have been quoted above.

22    Therefore, the claim made in the appeal is that the primary judge erred in finding that the Minister had considered in a proper, genuine and realistic manner, the adverse impact of long term separation of a child from a parent.

23    In the appeal, it was common ground that the prospect of long term harm to the children by reason of separation from their father was 'another reason' that had been advanced by Mr Bettencourt as to why his visa cancellation should be revoked. The Minister accepted on appeal that the passages quoted above were compelling aspects of the Submissions and supported Mr Bettencourt's contention that the best interests of the children favoured revocation. It was also common ground that the Minister had approached Mr Bettencourt's case on the basis that the children would not relocate to Portugal if Mr Bettencourt was removed from Australia to his place of citizenship. Therefore, the state of satisfaction of the Minister was to be formed in that context, namely that there would be a long term separation.

24    It is important to note that the appeal concerned the quality and character of the consideration given by the Minister to that 'other reason' advanced. It was not claimed that there had been no consideration given to the reason at all or that it had been completely ignored or overlooked by the Minister. Rather, it was submitted that the material relied upon demonstrated long term consequences of such magnitude that a failure to refer to those consequences in any meaningful way in the reasons supported the finding that the seriousness of the harm to the children had not been considered in the way that was needed in order for the Minister's state of satisfaction to be formed by undertaking a meaningful engagement with the reason advanced. In effect, the state of satisfaction was disconnected from consideration of the true content of the reason advanced as to why the visa cancellation should be revoked, namely the serious, long term, lifetime of harm to the children that would result.

The nature of the statutory power entrusted to the Minister

25    Section 501CA is expressed in the following terms:

(1)    This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.

(2)    For the purposes of this section, relevant information is information (other than non-disclosable information) that the Minister considers:

(a)    would be the reason, or a part of the reason, for making the original decision; and

(b)    is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.

(3)    As soon as practicable after making the original decision, the Minister must:

(a)    give the person, in the way that the Minister considers appropriate in the circumstances:

(i)    a written notice that sets out the original decision; and

(ii)    particulars of the relevant information; and

(b)    invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.

(4)    The Minister may revoke the original decision if:

(a)    the person makes representations in accordance with the invitation; and

(b)    the Minister is satisfied:

(i)    that the person passes the character test (as defined by section 501); or

(ii)    that there is another reason why the original decision should be revoked.

(5)    If the Minister revokes the original decision, the original decision is taken not to have been made.

(6)    Any detention of the person that occurred during any part of the period:

(a)    beginning when the original decision was made; and

(b)    ending at the time of the revocation of the original decision;

is lawful and the person is not entitled to make any claim against the Commonwealth, an officer or any other person because of the detention.

(7)    A decision not to exercise the power conferred by subsection (4) is not reviewable under Part 5 or 7.

26    In decisions of this Court, the construction of the terms of s 501CA(4) which confer the statutory power entrusted to the Minister to revoke a visa cancellation decision has been informed by the mandatory steps that are required by the earlier provisions in s 501CA. In that regard, it is significant that the earlier provisions of s 501CA require the Minister to give written notice of the decision to cancel the visa and relevant information (being specific information about the person that would be the reason or part of the reason for making the original decision). They also require the Minister to invite the person whose visa has been cancelled to make representations to the Minister 'about revocation of the original decision'. These mandatory steps provided for by s 501CA inform what is contemplated to occur in respect of the statutory power conferred on the Minister by s 501CA(4). It is in that context that s 501CA(4) confers the power to revoke the earlier cancellation decision. It is a power that is conditioned upon the Minister forming a state of satisfaction, relevantly for present purposes 'that there is another reason why the original decision should be revoked'.

27    Considered within the statutory context, the Minister's statutory power conferred by s 501CA(4) has been determined to have the following characteristics:

(1)    If representations are made to the Minister, a statutory obligation arises on the part of the Minister to form a state of satisfaction as to whether the person passes the character test or there is 'another reason' why the original decision should be revoked.

(2)    The state of satisfaction must be formed by reference to the representations such that a failure to consider the representations as a whole would be a failure to consider a mandatory relevant consideration.

(3)    The individual matters raised in the representations are not each mandatory relevant considerations and therefore do not need to be brought to account in the making of the decision such that they must form part of the considerations that give rise to the required state of satisfaction.

(4)    However, a state of satisfaction that is formed without considering a substantial or significant and clearly expressed claim made in the representations that there is a particular reason why the visa cancellation decision should be revoked is not a state of satisfaction of the kind required by the statute.

(5)    Further, there must be a real and genuine consideration of each such substantial or significant and clearly expressed claim.

(6)    If the state of satisfaction is formed that there is 'another reason' why the original decision cancelling the visa should be revoked then the Minister must revoke the cancellation.

As to these matters, see: Viane v Minister for Immigration and Border Protection [2018] FCAFC 116; (2018) 263 FCR 531 at [66]-[68], [73]-[74] (Colvin J, Reeves J agreeing); Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216; (2018) 267 FCR 643 at [41]-[45] (Rares and Robertson JJ), [62]-[63] (Flick J); Navoto v Minister for Home Affairs [2019] FCAFC 135 at [85]-[89] (Middleton, Moshinsky and Anderson JJ); Minister for Home Affairs v Omar [2019] FCAFC 188; (2019) 272 FCR 589 at [34]-[41] (Allsop CJ, Bromberg, Robertson, Griffiths and Perry JJ); GBV18 v Minister for Home Affairs [2020] FCAFC 17; (2020) 274 FCR 202 at [31]-[32] (Flick, Griffiths and Moshinsky JJ); Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CTB19 [2020] FCAFC 166; (2020) 280 FCR 178 at [15] (McKerracher, Kerr and Wigney JJ); and Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 125 at [3]-[4] (Katzmann J), [100] (O'Bryan J), [51] (Derrington J in dissent).

28    In addition to the above matters, an understanding of what is required by s 501CA as to the nature and quality of consideration to be undertaken by the Minister in any particular case is informed by the subject matter of the power and takes its form and shape from the terms, scope and policy of the statute. The principle of legality also means that its nature and extent are not taken to interfere with fundamental values anchored in the common law unless the statute does so explicitly. Therefore, as stated by the Chief Justice (Markovic and Steward JJ agreeing) in Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; (2018) 267 FCR 628 at [3], the following general description pertains to the character and quality of consideration that must be undertaken by the Minister in forming the required state of satisfaction for the purposes of s 501CA(4):

The consequences of these considerations are that where decisions might have devastating consequences visited upon people, the obligation of real consideration of the circumstances of the people affected must be approached confronting what is being done to people. This obligation and the expression of its performance is not a place for decisional checklists or formulaic expression. Mechanical formulaic expression and pre-digested shorthand expressions may hide a lack of the necessary reflection upon the whole consideration of the human consequences involved. Genuine consideration of the human consequences demands honest confrontation of what is being done to people. Such considerations do not detract from, indeed they reinforce, the recognition, in an assessment of legality, that those entrusted with such responsibility be given the freedom of lawful decision-making required by Parliament.

29    Various epithets have been used in the decided cases to describe what is required of the Minister by way of consideration in undertaking the statutory task of forming the required state of satisfaction. They include the formulation used by the appellant in the present case, namely 'proper, genuine and realistic consideration'. However, those words are not statutory and are not to be treated as if they were.

30    What is required, is consideration of a kind that means that the Minister's state of satisfaction is formed after, at least, an evaluation of the persuasiveness (in the view of the Minister) of each reason of significance that is prominently put forward in the representations as a reason why the original decision to cancel the visa should be revoked. Where there are a number of reasons put forward then they should all be considered together. If the Minister is of the view that there are countervailing reasons that affect whether the reasons advanced by the person concerned are sufficient to be 'another reason' then the persuasiveness to the Minister of the reasons advanced by the representations is to be evaluated by a process whereby those reasons and the countervailing reasons are all considered.

31    Where a claim is made that the Minister has not undertaken a consideration of the requisite kind and therefore has failed to form the required state of satisfaction, the Court has regard to the evidence relied upon in support of that claim by the appellant and the reasons provided by the Minister and such other evidence as the Minister may adduce in answer to the claim. In the present case that evidence was confined to the reasons as formulated by the Minister. Therefore, the question for the primary judge was whether, given the terms of those reasons, Mr Bettencourt had demonstrated that the Minister failed to reach the state of satisfaction of the kind required.

32    In deciding, by reference to the evidence provided by the terms in which the reasons of the Minister are expressed, whether the required statutory task has been undertaken by the Minister the Court may take account of the following aspects of the reasons:

(1)    express statements by the Minister as to what was taken into account;

(2)    evidence of the material that was placed before the Minister;

(3)    the nature of the statutory obligation to give reasons, particularly the obligation in the present case for the Minister to set out the factual matters that the Minister considered material to his decision and the material evidence;

(4)    the content of the reasons, that is the manner in which the reasons are expressed; and

(5)    the character and content of the matters raised by the representations that are alleged not to have been brought to bear in forming the required state of satisfaction.

33    In doing so, as the primary judge correctly observed, the Court will recognise that there is no obligation upon the Minister to refer to every piece of evidence or every contention: ETA067 v The Republic of Nauru [2018] HCA 46 at [13].

34    The Court will also have regard to the seriousness of the allegation made to support the claim that the required state of satisfaction was not formed. So, to take an extreme and unrealistic example, if the claim made was that the Minister's state of satisfaction was informed only by the roll of a dice there would need to be particularly cogent evidence to support such a claim. For that reason, there are a number of decisions in which this Court has said that a finding that the Minister has not engaged in the required degree of meaningful or active engagement is a finding that will not be lightly made. Those decisions do no more than state in a particular context the fundamental insight of Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336 at 363 that the nature of the issue necessarily affects the process by which reasonable satisfaction is attained. The more serious the nature of the alleged failure by the Minister to conform to the requirement of the statute, the more circumspection that the Court brings to bear.

35    As we have indicated, this is not a case where the claim made is that the Minister ignored the representations or did not undertake any consideration of them. Rather, the claim made is that the quality of the consideration of the particular reason about the long term impact of separation on the children advanced in the Submissions meant that it was not brought to bear in the process to be undertaken by the Minister in reaching the required state of satisfaction in conformity with the statute.

36    The Court is also conscious in cases like the present that the repository of the power is the Minister and it is the Minister's state of satisfaction that determines whether there is power to revoke the visa cancellation. It is not for the Court to usurp that authority entrusted by Parliament in the Minister and clothe a view as to the merits of the reasons advanced by way of representation to the Minister with language said to manifest jurisdictional error. In order for there to be jurisdictional error of the kind alleged in the present case there must be a finding that the duty to perform the statutory task was not carried out, not that there is disagreement, even strong disagreement with the reasoning and conclusion reached. Put shortly, the Court must not do anything that would substitute its state of satisfaction for the Minister's state of satisfaction in the present case.

The submissions for the appellant

37    The submissions for the appellant advanced the following propositions:

(1)    the reasons did not deal 'in any way' with the submission concerning long term harm to the children;

(2)    the reasons were expressed in a formulaic way;

(3)    there was a failure to express any findings as to the extent of the harm to the children that was likely;

(4)    the reasons did not refer to the academic material or any aspect of its content, particularly the magnitude of the likely harm as expressed in the Submissions based on that material;

(5)    the reasons did not grapple with the seriousness of the harm to the children that the material in the Submissions described;

(6)    the reference in the reasons of the Minister to the 'submission' from the maternal grandmother of the children that the children will be 'mentally and physically affected' being 'taken into account' did not engage with the content of the submission or lead to any finding; and

(7)    the reasons did no more than generally acknowledge a submission that the children would be mentally and physically affected which did not engage with the gravity of the long term consequences.

The submissions for the Minister

38    The Minister's submissions supported the approach of the primary judge. It was submitted that there was nothing in the reasons to suggest that the Minister misapprehended the seriousness of the impact that would result to the children if the visa cancellation was not revoked.

39    It was submitted that the Court should not find readily that the Minister has failed to consider particular aspects of the Submissions where that document was before the Minister and should be found to be considered by him. Reliance was placed upon the fact that the Submissions were included in the materials that were provided to the Minister as attachments to a Ministerial submission that summarised the relevant matters (although it was accepted that there was no reference in the Ministerial submission to the academic material or the nature of the likely long term harm raised by the Submissions).

40    It was submitted that the primary judge was correct to infer that the Minister was cognisant of the contents of the Submissions as to likely long term harm to the children and it was not necessary for the Minister to refer line by line to those matters.

Reasons for allowing the appeal

41    It may be noted that the relevant academic material referred to in the Submissions relied on by Mr Bettencourt to support the reason for revocation is not referred to and is therefore not questioned or doubted in the Minister's reasons.

42    The primary judge reasoned that the Minister's failure to refer to this material indicated implicit acceptance that long term separation was likely to be harmful and 'strongly favoured revoking the visa cancellation': at [29]. We are respectfully unable to agree with those findings by the primary judge. The following aspects of the Minister's reasons lead us to conclude that whilst the Minister recognised that there would be harm to the children and that, as a result, cancellation of the visa was in the best interests of the children, it is not possible to take the further step of concluding that the Minister implicitly accepted that long term separation was likely to be harmful and formed the view that the reason strongly favoured revocation. Rather, the conclusion to be reached from a consideration of the reasons is that the Minister failed to form the required state of satisfaction by reference to the information before him as to the seriousness of the harm to the children that was likely if the visa cancellation was not revoked, information which, as we have said, in this appeal the Minister accepted was compelling. The Minister thereby failed to form the required state of satisfaction.

43    First, there is no reference to the terminology used in the material in the Submissions which described the seriousness of the harm to the children that was likely in the long term.

44    Secondly, there is no finding by the Minister in the reasons concerning the quality or character of likely harm to the children. Rather, the only reference is to taking account of a submission by the maternal grandmother of the children that they will be 'mentally and physically affected should their father be removed from Australia'. Significantly absent is any description of the nature, extent or duration of such effect. Also absent is any conclusion as to the nature and extent of harm. The reason advanced in the Submissions was not simply that there would be a mental and physical effect. The reason was that the magnitude of the harm to the children would be substantial and ongoing. Further, and importantly, it was founded not on the views of a family member (which the form of reasons would suggest) but on expert views not adverted to in the reasons.

45    Thirdly, the language used in the reasons focusses upon distress and upset to the children at the time of separation rather than ongoing harm.

46    Fourthly, the key conclusion by the Minister that the best interests of the children would be served by the revocation of the original decision is expressed blandly without any qualitative evaluation of a kind that would indicate that the Minister accepted that there would be serious harm to the children if the decision was not revoked. In particular, there is no language in the conclusion (or elsewhere in the reasons) to support the finding by the primary judge that the Minister concluded that the interests of the children 'strongly favoured revoking the visa cancellation decision'.

47    Fifthly, in order for the Minister to form the required state of satisfaction it was necessary for the Minister not only to form a view as to whether the matters raised meant that the best interests of the children would be served by the revocation of the cancellation decision but to evaluate the significance of those matters. Only then would the representations as to the seriousness of the matters relied upon be considered in forming the required state of satisfaction. There is no indication in the language of the reasons that such an evaluation was undertaken by the Minister.

48    Sixthly, if executive power is to be exercised with a conscious understanding that it will result in the long term separation of a child from a loving and supporting parent with likely long term harm to the children then, given the nature of the obligation to give reasons in the present case, it is to be expected that the seriousness of that consequence and its consideration would both be manifested expressly in the reasons of the Minister.

49    For completeness we note that the Minister did not gainsay the proposition that if error of the type contended for by Mr Bettencourt is established, then such error was sufficiently material to warrant a conclusion of jurisdictional error.

Conclusion

50    For the reasons we have given, the appeal should be allowed with costs. There should also be an order in favour of the appellant in respect of the costs of the proceedings before the primary judge. It is appropriate in the interests of efficiency for provision to be made for lump sum assessment of costs by a registrar if the quantum of costs is not agreed.

Associate:

Dated:    23 September 2021