Federal Court of Australia

Savaiinaea v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 56

ORDERS

THE COURT ORDERS THAT:

1.    Leave be refused to the appellant to rely on ground 4 of the amended notice of appeal filed on 19 March 2021.

2.    The appeal be dismissed with costs as agreed or taxed.

THE COURT NOTES THAT:

3.    The parties are to endeavour to agree the quantum of costs payable under order 2, fixed if possible in a lump sum pursuant to r 40.02(b) of the Federal Court Rules 2011 (Cth). 

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

REASONS FOR JUDGMENT

THE COURT:

1    Before the Court is an amended notice of appeal from the whole of the judgment of the Federal Court of Australia in Savaiinaea v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1849, where the primary Judge dismissed an application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) to affirm a decision of a delegate of the first respondent (Minister) not to revoke a decision of the Minister to cancel the appellant’s visa.

2    The appellant seeks an order that the decision of the Tribunal be quashed and the matter be remitted to the Tribunal for determination according to law. The appellant also seeks leave to raise a new ground on the appeal (ground 4) which was not raised before the primary Judge.

3    For the reasons set out below, the application for leave to rely on ground 4 is refused and the appeal is dismissed with costs.

Background

4    The appellant, Mr Savaiinaea, is a citizen of New Zealand. He was first granted a Class TY Subclass 444 Special Category (Temporary) visa (visa) on arrival into Australia on 16 October 2005 when he was 20 years of age.

5    On 18 April 2019, the appellant had six convictions recorded before the Beenleigh District Court relating to an incident which occurred on the night of 4 November 2017. The six offences included:

    one count of “enter dwelling with intent by break at night uses/threatens violence – domestic violence offence”;

    two counts of “serious assault police officer whilst pretending/is armed with a weapon”;

    two counts of “common assault”; and

    one count of “common assault – domestic violence offence”.

6    The incident of 4 November 2017 was described at [43] of the Tribunal’s reasons. The incident involved the appellant entering the home of his former partner (Ms X) without consent, damaging her household contents, and engaging in a course of violent, aggressive, intimidatory and threatening conduct toward multiple people (namely Ms X, her female friend, her partner at the time (Mr S) and the police). The conduct included the commission of serious assaults (including punching Ms X in the chin) and the making of death threats while holding a knife and while pretending to have a gun. The incident was terrifying in nature and occurred in the presence of the appellant and Ms X’s four-year-old daughter. The appellant’s conduct was relevantly summarised in the sentencing remarks of the Honourable District Court Judge as follows:

I'm sentencing you today for one count of burglary by breaking with violence, for which the maximum penalty is life imprisonment. I'm then sentencing you three counts of common assault, for which the maximum penalty is three years imprisonment, and two counts of serious assault while armed, for which the maximum penalty is 14 years imprisonment.

You pleaded guilty when you were arraigned before me today. In the circumstances that have been outlined, even though these offences occurred in November 2017, there were other charges involved. And ultimately, in the way that you have conducted this matter, you have assisted in administration of justice and I have taken that into account. I've also taken into account that your guilty plea does assist in the administration of justice and I've taken it into account in determining the penalty I'm going to impose upon you today. I accept your guilty plea is an indication of your remorse and that, indeed, it seems when you sobered up the next night and participated in a record of interview, you were very sorry for your offending behaviour.

You pleaded guilty based on a schedule of facts that I’ve made exhibit 1 before me. The circumstances were that you and one of the complainants, [redacted – Ms X], had been in a relationship for about five years and you had a four year old daughter together. You separated in March 2016 and in the period between March 2016 and November 2017, you were having contact with your daughter. On the 4th of November 2017, [redacted – Ms X] was at her house with a few friends and they were having drinks on the back deck. Your daughter was also there. She then received a number of text messages from you, insisting that you were going to come over that night. She told you not to come to the house, but despite this, you attended sometime, it seems, around 8.20 to 8.30 pm.

[Redacted – Ms X] ran to the door to close it when she saw that it was you and not her friend's partner at the door, but you opened the door and entered the house. You then grabbed [redacted – Ms X] and yelled at her, "Who is it?" It seems that what fed your conduct on that night was your jealousy towards [redacted – Ms X] having potentially entered into a new relationship. You then rushed around the house, knocking over furniture, and headed towards the back deck, kicking furniture along the way. [Redacted – Ms B] and [redacted – Ms W] were on the back deck and one of them phoned the police.

[Redacted – Ms X] held your arm and tried to explain that it was only female friends at home. You turned around and grabbed her upper arm and neck, and that's the beginning of count 2. You then pushed her into the kitchen and forced her into the fridge. Then [redacted – Ms B] came into the house. You yelled at [redacted – Ms X], "You did this. You're playing me." You said things such as, "Someone is going to die tonight and I'm going to die tonight." [Redacted – Ms B] yelled at you to stop. You punched her. You then punched [redacted – Ms X] in the chin and you continued to hold [redacted – Ms X] tightly by her throat.

Your daughter was in the lounge room and was frightened. [Redacted – Ms B] attempted to get you off [redacted – Ms X]. And while still holding [redacted – Ms X], you grabbed [redacted – Ms B]’s arm and pushed her backwards against a glass door. That's count 4. You then shouted, "Who the fuck are you?" and [redacted – Ms B] went back outside and [redacted – Ms W] was still on the phone to police.

[Redacted – Mr S] then arrived and you then asked him, "Are you him?" Ultimately, you rushed outside of the house and pushed [redacted – Mr S] and told him, "I'm going to take your head off." [Redacted – Mr S] tried to talk you down. You threw a couple of punches at him and [redacted – Ms X] was holding your shirt in an attempt to move you away from [redacted – Mr S]. You then said to [redacted – Mr S], "Do you want to go, bro? I'll go you," and "Life doesn't matter to me anymore."

Ultimately, in the next few minutes, you then raced into the kitchen and picked up a knife. You said, "Where's the fucking bitch?" You walked towards [redacted – Ms X]’s bedroom. [Redacted – Mr S] asked you for the knife. You lifted the knife to your throat and said, "If I just kill myself here, all this shit will go away." [Redacted – Mr S] told you that that would not solve anything and you said, "I've got nothing to live for without her. She's my world." You applied pressure to your neck in a cutting motion. However, [redacted – Mr S] grabbed your arm and stopped you.

Later, the police arrived and you became very aggressive and abusive towards two police officers. You turned to one of them and repeatedly yelled things like, "I will stab you," and "I will kill you, coz," "I' going to kill myself," and "Death by cop." Constable [name redacted] repeatedly told you to take your hands out of your pockets. And you continued to shout threats at the police officers, including that you would kill them both.

Ultimately, you did not comply with police instructions to remove your hands from your pockets and Constable [name redacted] thought you were armed with a knife, based on the information he had been provided, and she had her hand on her firearm, but di d not draw it. Constable [name redacted] warned the defendant that she had a taser. And you shouted “I have a gun. Shoot me or I’ll shoot myself,” and then you reached into your pocket. You attempted to charge towards the police. [Redacted – Mr S] then grabbed you in a deadlock and restrained you until the police were able to handcuff you.

The following night, in sobriety, you took part in a record of interview and you said you'd gone to the house in an attempt to rekindle your relationship and you could not recall all of the incident and you were deeply sorry and embarrassed and you felt very bad for your daughter. This offence was not committed at a time a protection order was in place, but there had been a protection order in place which had expired on the 30th of October 2016.

It is serious violent offending. It was premeditated and fuelled, it seems, by rage and jealousy. And very concerningly, you were willing to do it in front of, or near, your four year old daughter. You did, in my view, impose a reign of terror on a group for up to 20 minutes and upon a person who you had just told [redacted – Mr S] that was your world. I don't have a victim impact statement, but in my mind there is no doubt that this would have been a frightening experience for all involved. You also put the police in a really difficult position because by your conduct, you had threatened them and you were threatening to harm yourself. In my view, it is indeed a very serious example of domestic violence.

You were 32 at the time and you are 33 now. You appear before me without any criminal history. And you have been on bail for a considerable period of time. During that time, I understand you have not been able to see your daughter because of bail conditions and the protection order. You have continued to pay $80 child support, which has been taken out each week.

You were born in New Zealand and headed to Australia 10 years ago. You have been gainfully employed and I have references that speak very highly of you. I'm told you're involved in the church. You don't ordinary drink. And, leaving aside that there had been a protection order in place, I accept that you are otherwise of good character. I've received your letters of remorse that you have written and I've taken those into account.

In my view, one of the things that concerns me in this case, though, is that I have no evidence to show that you've undertaken any counselling or any steps to deal with your anger management. And that does particularly concern me. I have no psychology reports to assist me in understanding further how you could have acted in the way that you did on this night.

It's been submitted on behalf of the Crown that, taking a global approach to the sentence, I would attach a head sentence of three years. And you would be required to serve one year actual custody. Your counsel urges upon me to structure a sentence that entails a head sentence no greater 12 months and one also that would see you have some special conditions and undergo an intensive program in the community. Obviously, one of those reasons, perhaps, is because a sentence more than 12 months will see you potentially be exported and one with actual custody may see you having to return to New Zealand. As the Court of Appeal has said in R v UE [2016] QCA 58, that these are not factors that are necessarily relevant to the exercise of my discretion, but I have certainly taken that into account, to some extent, in determining the penalty I'm going to impose upon you.

I have taken into account all of the Court of Appeal authorities provided to me: R v Rankin [2004] QCA 2; R v Fitzgerald [2004] QCA 241; R v Denham ex parte Attorney General [2003] QCA 74; R v Ross [2012] QCA 247; R v Buckley and Ghattas [2014] QCA 98. As the Court of Appeal observed in Fitzgerald at paragraph 14, with reference to R v Wendt, "offences of this character which threaten the safety of persons in their own home are commonly regarded as sufficiently serious to demand custodial sentences, even in the case of persons of previous good character." Although I do observe that later in Fitzgerald, the court considered the decision of R v Denham, which your counsel has provided me, observing that that does not mean that an actual custodial sentence is demanded in every case in which a person of previous good character threatens the safety of another in that other's own home.

In the present case, I have reached the view that actual custody is required in your case. In my view, this is a serious example of offending when I look at the overall criminality, particularly when I include the conduct towards the police on this night. It's a case where I cannot see, apart from there being no reoffending in the interim period, that there has been positive steps at rehabilitation. I've no evidence to show that you have taken steps to deal with, obviously, the emotions that led to your behaviour that night, particularly those threatening to take your own life and to harm those of others. I've also taken into account that a period of imprisonment is not a penalty of last resort and I've considered the factors in section 9(3).

In terms of penalty, I have balanced all of the relevant considerations, in relation to count 1, you are convicted and sentenced to two years imprisonment. In relation each of counts 2, 4, and 5, you are convicted and sentenced to six months imprisonment. In relation to each of counts 8 and 9, you are convicted and sentenced to one year imprisonment. I order that the terms of imprisonment be suspended after you have served a period of six months imprisonment and that you must not commit another offence punishable by imprisonment within a period of three years if you are to avoid being dealt with for the suspended term of imprisonment. And these sentences will run concurrently.

7    In addition to those offences, the appellant was disqualified from driving due to having exceeded the blood alcohol limit and driving whilst intoxicated.

8    For these offences, the appellant was sentenced to a term of imprisonment of three and a half years.

9    On 6 June 2019, the appellant’s visa was mandatorily cancelled by the Minister pursuant to s 501(3A) of the Migration Act 1958 (Cth) (Migration Act) on the basis that he did not pass the character test pursuant to s 501(6) of the Migration Act (cancellation decision). The appellant sought revocation of the cancellation decision pursuant to s 501CA of the Migration Act.

10    On 17 June 2020, a delegate of the Minister decided not to revoke the cancellation decision (revocation decision).

Decision of Tribunal

11    On 10 September 2020, the Tribunal affirmed the revocation decision made by the delegate.

12    In the Tribunal’s decision and reasons for decision, the Tribunal identified two issues for consideration, namely:

(1)    whether the appellant passed the character test; and

(2)    whether there was another reason why the decision to cancel the appellant’s visa should be revoked.

13    Before the Tribunal the appellant conceded that he did not pass the statutory character test. Accordingly, he could not rely on s 501CA(4)(b)(i) of the Migration Act for revocation of the cancellation decision.

14    As to whether there was another reason for revocation, Ministerial Direction 79 (the Direction) stipulates three Primary Considerations to which the Tribunal should have regard, namely:

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.

15    The Tribunal noted that the Direction also made reference to other relevant considerations, namely:

(a)    international non-refoulement obligations;

(b)    strength, nature and duration of ties;

(c)    impact on Australian business interests;

(d)    impact on victims; and

(e)    extent of impediments if removed.

16    The appellant’s case in this appeal focuses on findings of the Tribunal concerning Primary Considerations A and B.

Primary Consideration A – Protection of the Australian community

17    The Tribunal observed that, in determining the weight applicable to Primary Consideration A, it was required to give consideration to the nature and seriousness of the appellant’s conduct and the risk to the Australian community should the appellant commit further offences or engage in other serious conduct.

18    Turning first to consider the nature and seriousness of the appellant’s conduct, the Tribunal observed that the appellant’s history of offending largely involved domestic violence, and one significant offending episode in respect of which the appellant was later sentenced. The Tribunal further observed that the sentencing remarks of the District Court Judge noted the seriousness of the offences committed by the appellant, in particular:

In my view, it is indeed a very serious example of domestic violence.

19    The Tribunal ascribed significant weight to the Court’s evaluation of the facts of the offences, and to the seriousness with which the District Court Judge regarded the offending of the appellant. As such, the Tribunal viewed the appellant’s domestic violence offending, and his offending on the night of 4 November 2017, as very serious. The Tribunal was of the view that this finding was consistent with the application of the following relevant sub-clause in subcl 13.1.1(1) of the Direction:

a)     The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;

b)     The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;

c)     The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;

d)     Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;

e)     The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;

f)     The cumulative effect of repeated offending;

   …

20    Turning then to consider the risk to the Australian community should the appellant commit further offences or engage in other serious conduct, the Tribunal observed that in making a decision it should have regard to the following two factors:

(1)    the nature of the harm to individuals or the Australian community should the appellant engage in further criminal or other serious conduct; and

(2)    the likelihood of the appellant engaging in further criminal or other serious conduct, taking into account available information and evidence of the risk of the appellant re-offending.

21    In relation to the risk to the Australian community of further conduct by the appellant, the Tribunal noted the following submissions of the appellant:

62.    In circumstances where the Applicant has made significant and relevant rehabilitation efforts and has a sound prevention plan in place, it is our submission that any further offending by the Applicant, if any, is likely to be far less serious in nature than his most serious offending conduct, the subject of his conviction.

63.     In the premises, it is submitted that:

(a)     the nature of any potential future harm attributable to the Applicant would be significantly less serious than his previous offending;

    …

22    In the course of his appearance before the Tribunal, the appellant undertook a psychological assessment via teleconference. The outcome of the psychological assessment of the appellant was a report of 3 November 2019, undertaken by psychologist Dr Jacqui Yoxall. In her report, Dr Yoxall stated that the appellant “was referred for psychological assessment, with specific focus on risk of reoffending and whether he presents a danger to Australian society”.

23    Dr Yoxall’s initial assessment of the appellant’s likelihood of re-offending in her report was that the appellant was:

(1)    Low risk for general re-offending (using a standardised measure of risk);

(2)    Low to moderate risk for violence (using an actuarial measure of risk); and

(3)    Moderate risk in relation to violent re-offending against a spouse and low risk of violent re-offending against others (using an actuarial measure of risk for both assessments).

24    Additionally, the appellant was reported as being in “substantial need of evidence-based psychological intervention and rehabilitation for not only alcohol abuse but for anger management, emotional regulation and, more overall, domestic violence”.

25    Following Dr Yoxall’s report of 3 November 2019, an additional letter was submitted to the Tribunal dated 19 August 2020 from Dr Yoxall. This letter updated her opinion offered in relation to the risk of the appellant re-offending. The Tribunal observed that, critically, Dr Yoxall provided the following update in relation to her assessment of the appellant’s likelihood of re-offending:

I appreciate that a passage of time has passed since my assessment of Mr Savaiinaea. If all other matters addressed in my report of 3 November 2019, have remained essentially the same, and on the basis that Mr Savaiinaea has effectively engaged in the noted personal development and rehabilitation, it would be my view that his engagement in the noted groups and programs would have most likely reduced his risk of reoffending, particularly in regard to spousal violence.

I would also suggest that engagement in some sort of counselling or support group/program (formal or informal) to re-integrate to community and maintain these gains would also be of benefit to Mr Savaiinaea. Specifically, if these conditions were met, I would think it more appropriate for the risk of reoffending in terms of domestic violence to be considered to be low.

26    The appellant submitted to the Tribunal a number of participation certificates for courses offered to the appellant whilst in immigration detention. The certificates of participation spanned courses from February 2020 through to August 2020, and covered topics relating to anger management, fathers reconnecting with their children, and life skills.

27    The Tribunal heard evidence from Dr Yoxall in relation to reviewing the appellant’s involvement in these courses for which he had presented the participation certificates. At [99] the Tribunal noted the following evidence of Dr Yoxall:

So Mr Savaiinaea, as I was advised, has completed a variety of programs, I think approximately March, February this year, specifically a lot at Yongah Hill, and I received a range of documentation to evidence that. I mapped the components of those programs, and look, they’re good programs, they’re modularised programs that look at a variety of psychosocial issues and a range of psychoeducation elements to those programs, and looked at that compared to the common issues that are - that usually require amelioration for people who [perpetrate] domestic violence offences, but also specifically for Mr Savaiinaea… So the work that he did on paper certainly indicated that a lot of those [rehabilitation] needs at least had been, and I’m not going to say fully addressed, but they had been - there had been an engagement in that process that addressed those rehabilitation needs. And it was reasonably comprehensive, in my opinion, and in comparison to what I’ve seen over, sort of, 23 years. And so from that point of view, these dynamic risk factors, when addressed through rehabilitation, you know, that’s what then creates a reduced level of [risk] moving forward because the person has essentially established some skills, a better understanding and insight and a different way of thinking about the events that happened and a plan for the future of how to address things differently. I said in that letter that there’s an assumption of - my conclusion is based on an assumption that all other things remain similar or same, and that the certificate of participation indicates genuine participation. I did speak to Mr Savaiinaea on Friday of last week, the 21st, by telephone and I conducted a verbal review with him over about 30 to 40 minutes where I asked him a range of questions and - about his [experience] of those programs and he - it was my view that he has fully engaged in those programs and there was a clear progression.”

[Tribunal clarifications in the transcript]

28    Materially the Tribunal noted:

100.    The change in opinion of Dr Yoxall regarding the Applicant’s likelihood of re-offending in a domestic context, in her words, “is based on an assumption that all other things remain similar or same, and that the certificate of participation indicates genuine participation”. Dr Yoxall stated that she believed the Applicant engaged in genuine participation based off her interview which she conducted on 21 August 2020, two days after her revised opinion was provided in her letter dated 19 August 2020.

101.    There is no submitted evidence before the Tribunal from course facilitators conducting the sessions for which that the Applicant has presented participation certificates, confirming how the Applicant performed in the courses. The Tribunal agrees with the Respondent’s contention that:

“Respondent: ... the extent to which the conditional revisement of risk is based, it is also based, largely, on a history given by the applicant which cannot be accepted as reliable in that Dr Yoxall has no more independent evidence than the fact that there was a certificate of participation, there is no independent evidence as to how the applicant responded to participating in the courses from the course facilitators and the applicant conceded as much when that proposition was put to him. Such that there is limited confidence that can be placed in that aspect of the history of the applicant that was reported to Dr Yoxall, that he’s progressed to his understanding. And of course Dr Yoxall can’t be criticised because she can only base it on what she’s been told, what she’s only been told by the applicant.”

102.    Further, in relation to the change in Dr Yoxall’s opinion, the Tribunal observes that this was conditional on the Applicant meeting a number of requirements in order to be considered a “low risk” of re-offending in terms of spousal violence. The Tribunal refers to the following exchange:

“Respondent: Just finally, if we can return to your supplementary report, please, on page 4 where you were taken to your - the first paragraph which has that last sentence where you conclude that, specifically:

If these conditions were met, I would think it more appropriate for the risk of reoffending, in terms of domestic violence, to be considered to be low.

As I read your supplementary report, when you’re referring to these conditions - ‘If these conditions were met’ - do I understand correctly that you’re referring to the two things - the two [full] categories that you identify in that paragraph and the earlier paragraph - the first one is that:

On the basis that Mr Savaiinaea has effectively engaged in the noted personal development rehabilitation is the first one?

Dr Yoxall: Yes, yes.

Respondent: And, secondly - so that’s sort of backwards looking - and then the second condition is effectively forward looking - and that is what you identify on the top of page 4. You said:

I would also suggest that engagement in some sort of counselling or support group/program (indistinct) to reintegrate to community and maintain these gains would also be of benefit to Mr Savaiinaea .

Are they the conditions that you’re referring to when you say specifically:

If these conditions are met?

Dr Yoxall: Yes, yes. They are, they are. There’s two parts to it. What he’s done so far, but he’ll need to do more when he goes back to the community. So, transition back to community will require support and will require external support to assist him to implement the things that he’s learnt in the realworld scenario, as opposed to the immigration detention scenario. And a system to manage and build those skills as he faces various life events that one does in the community. So he’s done those programs, he has a set of skills. That’s not sufficient for the rest of his life, and that’s not sufficient to ensure that everything - to ensure that he will stay a low risk.”

[Tribunal clarifications in the transcript]

(footnotes omitted)

29    At [104] however the Tribunal considered that Dr Yoxall’s opinion was, at best, a conditional opinion, and:

104.    … in Dr Yoxall’s own words, the skills that the Applicant may have obtained from his participation in programs offered whilst in immigration detention are, “not sufficient for the rest of his life, and that’s not sufficient to ensure that everything - to ensure that he will stay a low risk”. Dr Yoxall’s opinion is not a conclusive endorsement that the Applicant has overcome their predilections for substance abuse (in particular alcohol), nor that they have learned to control their emotional regulation with particular regard to anger or jealousy.

(footnotes omitted)

30    The Tribunal referred to the sentencing remarks of the primary Judge and continued:

106.    The Tribunal observes that the only evidence before it regarding the Applicant undertaking rehabilitation for their issues regarding substance abuse and emotional regulation (in particular regarding anger and jealousy) are the participation certificates the Applicant has submitted which begin in February of this year. There is no evidence that the Applicant sought rehabilitation after their violent offending on the night of 4 November 2017.

31    At [114] the Tribunal found:

114.    Critically, there is no evidence before the Tribunal that the Applicant has undertaken any formal rehabilitation for their substance abuse issues whether that be for methamphetamine use in the past, or alcohol abuse. At best, there have been verbal undertakings from the Applicant that they have participated in Alcoholics Anonymous meetings.

(footnotes omitted)

32    Ultimately at [116] the Tribunal concluded:

116.    The Tribunal is not convinced on the state of the evidence before it, the Applicant has undertaken formal rehabilitation to the extent that his capacity to moderate and control his intake of alcohol (and address his past use of illicit drugs); and his ability to control his emotional regulation with regards to anger or jealousy; is such that it renders him of being a lower risk of succumbing to these past addictions which have contributed to his offending.

33    The Tribunal had regard to 24 letters of support from friends and family of the appellant, and the appellant’s evidence that, should he remain in Australia, he would return to living with his parents.

34    The Tribunal was of the view that, given the appellant’s past propensity towards violence in a domestic context and past afflictions with substance abuse, if the appellant were to re-offend, he had the clear capacity to cause very serious physical harm, or indeed catastrophic harm to a victim of the Australian community – especially women and children. Such risk, the Tribunal found, was not acceptable to the Australian community.

35    At [125] the Tribunal expressed the view that it was clear from the state of the evidence that the appellant’s offending originated from unresolved issues regarding alcohol abuse, in addition to difficulties with emotional regulation. The Tribunal then concluded:

126.    There is no conclusive independent expert opinion before the Tribunal that confirms the Applicant has undergone formal rehabilitation for their predilections towards substance abuse such that there is a demonstrable form of remedial management and control in place to address these issues. In fact, such a point has been conceded by the Applicant in their closing submissions…

36    It followed that Primary Consideration A weighed very heavily in favour of non-revocation of the cancellation decision.

Primary Consideration B – The best interests of minor children in Australia

37    In summary the Tribunal observed:

    The appellant fathered a daughter in September 2013 with his former partner.

    The appellant’s former partner had a son, who turned 18 in September of 2020 and still had his own father present in his life. The appellant made no submissions in respect of his relationship with his former partner’s son.

    The appellant had nieces and nephews. However the Tribunal observed:

140.    There are references in the material before the Tribunal in relation to nephews and nieces of the Applicant. In this respect there were no substantial submissions made to the Tribunal as to the Applicant’s relationship with his nephews and nieces, nor was anyone called to give evidence before the Tribunal regarding any parental relationships. In light of this, the Tribunal has not made any findings, based on the fact that there is insufficient evidence to make a finding that it’s in the best interest of the nieces and nephews of the Applicant, for the Applicant to remain in Australia.

38    In relation to the best interests of appellant’s daughter, the Tribunal at [179] concluded that the best interests of the appellant’s daughter weighed moderately in favour of revocation of the cancellation decision. The Tribunal qualified this finding by stating that the moderate weight the Tribunal attributed to Primary Consideration B did not, in any way, outweigh the very heavy weight the Tribunal attributed to Primary Consideration A.

39    On 20 November 2020, the appellant filed an amended application for review of the Tribunal’s decision in the Federal Court.

Decision of the Federal Court

40    On 30 November 2020, the primary Judge dismissed the appellant’s application for judicial review of the Tribunal’s decision.

41    The primary Judge noted that four grounds of review were pressed before the Court:

1.     The Tribunal made a jurisdictional error by failing to complete its statutory task due to its misunderstanding of the inquisitorial nature of its task and/or due to its misunderstanding of the obligations imposed by Direction 79 which resulted in it failing to comply with Direction 79 by failing to consider whether revocation was in the best interests of the Applicant’s minor niece and 4 minor nephews.

2.     Further or in the alternative to ground 1, the Tribunal made a jurisdictional error by failing to complete its statutory task due to its misunderstanding of the inquisitorial nature of its task and/or due to its misunderstanding of its obligation to consider representations made in support of revocation which resulted in it failing to consider representations that revocation was in the best interests of the Applicant’s minor niece and 4 minor nephews.

…

5.     The Tribunal made a jurisdictional error by failing to complete its statutory task due to its misunderstanding of the obligations imposed by Direction 79 which resulted in it failing to comply with Direction 79 by constructively failing to consider the effect of non-revocation on the Applicant’s immediate family.

6.     The Tribunal made a jurisdictional error by failing to complete its statutory task due to it overlooking evidence of the effect separation from the Applicant was having on his 7-year old daughter resulting in it constructively failing to consider her best interests in accordance with paragraphs 13.2(1) and 13.2(4)(d) of Direction 79 and/or failing to consider a representation that revocation was in the best interests of the Applicant’s 7-year-old daughter due to the effect separation was having on her.

42    The primary Judge observed that central to the case before the Court were the appellant’s Australian resident nephews and a niece, with whom the appellant had particular association following their birth. The primary Judge referred in particular to [140] of the Tribunal’s reasons for decision.

43    At [12] the primary Judge stated that grounds 1 and 2 of the amended originating application raised an issue as to whether, in relation to the appellant’s minor niece and nephews resident in Australia, the Tribunal committed jurisdictional error by failing, or at least failing in any meaningful way, to address and make findings in respect of their interests.

44    At [13] his Honour observed that, in the case before the Court, there were two relevant features of administrative decision making in respect of the review of a decision in relation to whether to revoke visa cancellation.

45    First, before the primary Judge the appellant relied on observations of French CJ, Kiefel, Bell and Keane JJ in Uelese v Minister for Immigration and Border Protection (2015) 256 CLR 203 at [62]-[64] (Uelese) . In light of Uelese and s 499(2A) of the Migration Act, the primary Judge accepted even if a particular minor resident in Australia was not expressly mentioned in submissions made on behalf of the appellant to the Tribunal, that did not relieve the Tribunal of an obligation to consider the interests of those minors in the review of the cancellation decision.

46    The primary Judge observed that the second principle of administrative decision making at large in the case before the Court followed from a decision of the Tribunal in Re Easton v Repatriation Commission (1987) 6 AAR 558, at 561, where the Tribunal stated:

The ambit of a review by the [Tribunal] is necessarily influenced by the ambit of the steps and proceedings that have taken place prior to its review for the function of the [Tribunal] is to review a decision.

47    At [17] the primary Judge said that the notion of the Tribunal forming part of a continuum had a number of ramifications to the case before the Court, namely:

    the Tribunal’s reasons would necessarily be coloured and shaped by prior positions taken by the parties and by matters which were or were not at issue, either as revealed by statements of facts, issues and contentions or otherwise; and

    the Tribunal would react to particular emphasis given to particular issues by the parties to a particular review application.

48    In the particular case before the Tribunal, the primary Judge noted in summary:

    The appellant’s statutory declaration, which followed the initial making of the representation, and was apparently prepared with the benefit of legal representation, made only passing reference to the Australian resident niece and nephews (at [18]).

    There was reference, although not emphasis, on these particular minors also falling within the class prescribed by the Direction as to those whose interests had to be taken into account in the statement of facts, issues and contentions and oral submissions (at [18]).

    In a statement provided by the mother of the relevant minors, emphasis was placed on the impact on her and the appellant’s mother from the appellant’s deportation, rather than the effect of the appellant’s deportation on her children (at [22]).

49    The primary Judge at [20] held that, had there been no reference at all to the niece and nephews in the Tribunal’s decision, Uelese would have bound the primary Judge to find that the Tribunal’s decision was attended with jurisdictional error of the kind that grounds 1 and 2 sought to agitate. However that was not the case. Rather, the issue of the interests of the appellant’s niece and nephews had been addressed, but the way in which it had been addressed was a reflection of the way in which the case was presented by the appellant (at [20]).

50    The primary Judge continued, finding in summary:

    the Tribunal had not failed to comply with its statutory obligation as described in Uelese (at [21]); and

    the Tribunal recognised that it was obliged to consider, and had considered, the interests of the appellant’s niece and nephews, however the attention given to those interests by the Tribunal reflected the prominence given to them by the appellant at that time (at [21]).

51    At [23] the primary Judge observed that grounds 3 and 4 of the amended originating application were not substantiated. At [24] his Honour found the same could be said in relation to ground 5.

52    As the primary Judge observed, what to make of the statements was a matter for the Tribunal and a matter which the Tribunal was obliged by statute and the Direction to consider. The Tribunal did not ignore the subject, rather, as the primary Judge noted, the Tribunal stated as follows:

202.     The Tribunal has before it numerous letters of support from family and friends hoping for the Applicant to remain in Australia, including from the family of the victim of the Applicant’s offending, his former partner, as outlined in the earlier reasons of this decision. Further, submissions before the Tribunal confirm the Applicant has been in stable employment during his time in Australia.

203.     In applying paragraph 14.2(1)(a)(i) of the Direction, the Tribunal has not applied adverse weight against the Applicant given that he arrived in Australia as an adult at 20 years of age and the offending in November 2017 for which the Applicant was convicted of in April 2019, occurred some time after his arrival in October 2005.

204.     The Tribunal is of the view that a slight measure of weight should be afforded to the Applicant in terms of applying paragraph 14.2(1)(a)(ii) of the Direction. The Tribunal’s reasons for this is based on his work history and community participation in this country.

205.     In applying Paragraph 14.2(1)(b) of the Direction, the Tribunal notes that the Applicant has a biological child in Australia, and it is clear the Applicant’s biological child would be impacted by the Applicant’s removal from Australia.

 206.     The Applicant made submissions to the Tribunal that:

“76.     The Applicant has distinct links with Australian citizens as evidenced by the various support letters.

77.     We submit that in circumstances where:

(a)     both prior to engaging in the index offending, the Applicant has positively contributed to the Australian community by exhibiting a strong work ethic;

(b)     all of the Applicant’s immediate family live in Australia;

(c)     the effect of non-revocation on the Applicant’s immediate family in Australia, his ex-partner and child; and

(d)     the Applicant resided in Australia for 12 years prior to the index offending – he had no prior criminal history, and instead, can be seen to have positively contributed to the Australian community, this consideration should weigh strongly in favour of exercising the discretion to revoke the visa cancellation conferred by s 501CA(4).”

207.     It is clear from the material before the Tribunal that the Applicant’s strength, nature and duration of ties to Australia are considerable.

208.     It is the Tribunal’s view that, consistent with paragraph 14.2(1)(b) of the Direction, this Other Consideration attracts a moderate level of weight in favour of the Applicant. The Tribunal does however temper this slightly by its finding in relation to paragraph 14.2(1)(a)(i) and (ii) of the Direction.

209.     Accordingly, while this Other Consideration (b) in paragraph 14.2 of the Direction may overall moderately weigh in favour of revocation, it is outweighed by Primary Considerations A and C, both of which weigh heavily in favour non-revocation.

53    The primary Judge continued, finding in summary:

    If it were the case that either those family members or the appellant’s niece and nephews resident in Australia had not been the subject of reference by the Tribunal, that omission would have been material. However, each of those persons’ interests was considered by the Tribunal, and considered in the sense described by the Full Court in Minister for Home Affairs v Omar (2019) 272 FCR 589 at [36].

    The Tribunal had, at [140] and further at [207] of the Tribunal’s reasons, made relevant findings.

    The Tribunal took into account the interests of the Australian resident minor nephews and niece, as well as siblings, and for that matter, the appellant’s former partner.

54    The primary Judge held that it necessarily followed that ground 6 did not have merit.

Amended Notice of Appeal

55    The appellant filed an amended notice of appeal on 19 March 2021. At the hearing the appellant informed the Court that he pressed the following grounds of appeal:

1.    The learned primary judge erred in not finding that the Second Respondent’s (Tribunal) decision was vitiated by failing to ‘consider’ the best interests of his minor niece and 4 minor nephews.

Particulars

a.    The Appellant made representations in his personal circumstances form about the best interests of his minor niece and 4 minor nephews

b.    The Tribunal’s reasons at [140] are inconsistent with the Tribunal considering and engaging with the representations and the best interests of the Appellant’s minor niece and 4 minor nephews

c.    The learned primary judge erred in finding at [19]-[21] that the Tribunal had considered the representations and the best interests of the Appellant’s minor niece and 4 minor nephews

2.    ....

3.    The learned primary judge erred at [17] in invoking the ‘administrative continuum’ proposition sourced to Re Easton v Repatriation Commission (1987) 6 AAR 558 at 681 as ameliorating or modifying the positive duty to consider the best interests of minor Australian citizen or resident children as established in Uelese v Minister for Immigration and Border Protection (2015) 256 CLR 203 or the expression thereof in the Tribunal's reasons.

4.    The learned primary judge erred in not finding that the Tribunal’s decision was vitiated by a denial of procedural fairness in its reasoning and findings at [100]-[101] that the expert opinion that the appellant was a low risk of reoffending was diminished by a lack of evidence ‘from course facilitators conducting the sessions' that the appellant had ‘genuinely participated’ in the numerous courses, or implicitly finding (without an intelligible justification) that he had not participated, because he had not ever been asked whether he had genuinely participated nor put on notice that it was in issue.

5.    ...

(Strikethrough in original omitted).

56    The appellant also conceded that ground of appeal 4 required leave of the Court.

Submissions of the APPELLANT

57    The appellant addressed grounds 1 and 3 together, submitting in summary:

    The Tribunal’s statutory duty to find and express its findings in reasons is not regulated by any abstract judicial expositions of an “administrative continuum”.

    There is nothing flowing from the manner of the presentation of a visa applicant’s case which can modify the statutory duty to express its findings on material questions of fact.

    Matters material to the review of a decision either “clearly emerge” in the course of a review, or they do not.

    Even the total omission of a matter from the presentation of a visa applicant’s case can result in jurisdictional error by the Tribunal if the Tribunal fails to consider it.

    None of the authorities cited by the primary Judge support the position that the Tribunal’s obligations were ameliorated by reference to the notion of an “administrative continuum”.

    At [10] of its reasons, the Tribunal stated that because “there were no substantial submissions” about the appellant’s relationship with his niece and nephews, and because no witness was called “to give evidence … regarding any parental relationship”, there was nothing upon which an obligation to make findings of fact fastened. The Tribunal’s conclusion that, accordingly, there was insufficient evidence to make a finding referable to the best interests of the appellant’s niece and nephews, could not be accepted in point of principle.

    The proposition that there was “insufficient evidence to make a finding that it’s in the best interests of [the appellant’s] nieces [sic] and nephews, for [him] to remain in Australia” was either correct or not correct. It was not affected by the manner in which the case was presented. It was in any event incorrect, because:

(a)    The appellant had submitted that his risk of reoffending was mitigated because of “meaningful relationships with [the appellant’s] nephews and nieces, in view of his role as their uncle which has important cultural undertones”.

(b)    The appellant’s own statement and unchallenged evidence was that “I have four nephews and one niece who are minors. I used to see them every weekend at my parent’s house when I was over as well as birthdays a[n]d their sport games”.

(c)    The appellant’s s 501CA(3)(b) representation stated:

[Two nephews] are twins and they are 8 years old. I am very close with the boys. We have a love for sport especially rugby. We would play at the park some Saturdays.

[One nephew] is the same age as my daughter and they shared a very close bond. So I am very close to my nephew. He also enjoys football, He would spend a few weekends at my place where we would play at the park and go [to] movies, etc.

My two youngest nephew and niece … are just very special to my heart … I share a very close relationship with them. I love all my nieces and nephews very dearly.

The representation also described the impact of revocation on those nephews and niece immediately following:

I have been involved in their (sic) niece and nephews’] lives since they were all born. I have attended most of their school events, birthdays and football games. I give them advice on their football and just in general good advice about life. I am very close to them all and being away already has been a devastating impact as there is a lot they can’t fully understand but that I just haven’t been around in the last few months.

(d)    One of the appellant’s sisters stated that “I’ve never seen a man love their child, their nephew’s [sic] and nieces the way he loves them. He’s the most caring sibling out of all of us’ and ‘[p]lease don’t take Eric away from our family … it would be like literally ripping our hearts into two …”.

(e)    Another sister of the appellant stated that her “brother will lose his daughter and he won’t be able to raise her, he won’t be able to help take care of my parents, he won’t be able to watch his niece and nephews grow, he will miss out on birthdays, graduations, weddings, everything”.

(f)    The appellant’s brother-in-law (and father of the twins) relevantly stated that the appellant was “always providing for his parents and siblings as well as his nephews and nieces. But mainly for his daughter”.

    The reference at [140] of the Tribunal’s reasons to “regarding any parental relationship” exposed an assumption that, unless the relationship of the appellant with his nephews and niece was “parental”, it was immaterial. This assumption is not correct.

    There was no consideration of the best interests of the appellant’s nephews and niece because there was no “proper, genuine and realistic consideration” of their best interests.

58    In relation to ground of appeal 4 the appellant submitted that leave ought be granted because, inter alia:

    There would be no substantive prejudice to the Minister.

    There was merit to the ground.

    It would be a very real injustice to the appellant if he were to be permanently separated from his family on the basis of an unlawful decision of the Tribunal.

    At [100]-[101] of the Tribunal’s reasons for decision, the Tribunal discounted or qualified the expert evidence.

    The assessment of the expert evidence was relevant to the assessment of the “primary” consideration of the “protection of the Australian community”, which was a central reason for non-revocation.

    The Tribunal impliedly made a finding of material fact that the certificates of participation were false, notwithstanding that the certificates themselves described actual participation. This was effectively a finding of dishonesty.

    That the certificates were false was a proposition never put to the appellant.

Submissions of the Respondent

59    In relation to ground of appeal 1, the Minister submitted, inter alia:

    Although ground 1 centres around the best interests of the appellant’s minor niece and nephews, that consideration was far from a central or pivotal feature of the appellant’s case before the Tribunal.

    The appellant’s submission to the Minister outlining why the appellant’s visa cancellation should be revoked on account of the best interests of minor children focussed entirely on the appellant’s biological child, with no reference being made to his minor niece and nephews.

    None of the evidence advanced by the appellant before the Minister raised any meaningful concern for the best interests of the appellant’s minor niece and nephews, or the effect of the visa cancellation decision on them.

    Although a small number of documents before the Minister broadly referred to the appellant’s relationship with his niece and nephews, there were three issues with such evidence:

(a)    It was apparent on the face of the materials that the appellant has a large family, including 26 nieces and nephews.

(b)    The parents of the five minor niece and nephews in question provided statements in support of the appellant’s case, but did not say anything specific about the effect on those minor children should the appellant be removed from Australia.

(c)    Most of the references to the appellant being a good uncle to his nieces and nephews came from other family members who were not the parents of the five minor children.

    Before the Tribunal the appellant did not advance the best interests of his minor niece and nephews as a significant or substantial issue requiring consideration.

    The appellant was, in effect, asserting that the Tribunal had a duty to make a finding under s 43(2B) of the Administrative Appeals Tribunal Act 1975 (Cth). That argument should be rejected however because, inter alia, the Tribunal actively engaged in considering whether it was in the best interests of the appellant’s niece and nephews for the appellant’s visa to be cancelled, but made no findings in this regard because of the lack of relevant submissions or evidence.

    The Tribunal’s conclusion that there was “insufficient evidence to make [such] a finding” was fairly construed.

60    In relation to ground of appeal 3, the Minister submitted, in summary:

    The primary Judge applied the correct legal principle to the case before the Court, having regard to the way the appellant had presented his case in the “administrative continuum” leading up to the Tribunal’s decision.

    There was no error of the nature asserted by this ground.

    There was not a sufficient basis to conclude that the Tribunal did not consider the best interests of the minor niece and nephews.

61    In relation to ground of appeal 4, the Minister submitted, in summary:

    Ground 4 involved the agitation of an entirely new and different jurisdictional error.

    No explanation was provided for the ground not being raised at first instance.

    The ground was without merit.

CONSIDERATION

62    It is appropriate to deal first with grounds of appeal 1 and 3, and then ground of appeal 4.

Grounds of appeal 1 and 3

63    As the appellant properly submitted, in respect of these grounds of appeal the key issue is whether the Tribunal’s reasons at [140] disclose an active intellectual engagement with the material concerning the appellant’s niece and four nephews. In this respect however we note not only [140] of the Tribunal’s decision, but also the following contextual observations of the Tribunal:

136.    In the present matter, the Applicant fathered a daughter in September 2013 with his former partner which is relevant to the application of Primary Consideration B of the Direction.

137.    There are references in the material before the Tribunal of the Applicant’s former partner’s son, who at a point in time was the Applicant’s step-son and was also subject to protection orders from the Applicant, which are currently in place.

138.    No submissions were made to the Tribunal in relation to the Applicant’s relationship with their step-son. The Applicant’s former partner gave evidence to the Tribunal that her son turns 18 in September of 2020, he still has a father present in his life and he has lived with his father for a considerable period of time.

139.    The Tribunal agrees with the Respondent’s contention in relation the step-son, that, “the evidence doesn’t support a finding that it would be in the best interest of that child for the visa revocation to be revoked, at highest, it’s neutral in the circumstances and the evidence is insufficient to make a finding that it’s in the best interests of the son of [redacted – Ms X]”.

140.    There are references in the material before the Tribunal in relation to nephews and nieces of the Applicant. In this respect there were no substantial submissions made to the Tribunal as to the Applicant’s relationship with his nephews and nieces, nor was anyone called to give evidence before the Tribunal regarding any parental relationships. In light of this, the Tribunal has not made any findings, based on the fact that there is insufficient evidence to make a finding that it’s in the best interest of the nieces and nephews of the Applicant, for the Applicant to remain in Australia.

141.    The Tribunal will now address each of the factors in paragraph 13.2(4) of the Direction as they apply to the factual circumstances of the Applicant and his daughter.

(footnotes omitted)

64    Relevantly in this context, the primary Judge observed:

14.    Based on these observations Mr Glenister submitted, correctly, in my view, that even if a particular minor resident in Australia, falling within the terms of the Minister’s direction, had not expressly been mentioned in submissions made on behalf of Mr Savaiinaea to the Tribunal, that did not relieve the Tribunal from an obligation to consider the interests of those minors in the review of the Minister’s delegate’s decision. Put shortly, that was the effect of s 499(2A) once the Minister chose to give prescriptive directions requiring the interests of minors to be considered by those exercising, relevantly, the discretionary power found in s 501CA(4) of the Act.

15.    The second administrative law principle which is at large in this case is one raised on behalf of the Minister. That principle proceeds from, ultimately, a decision of the Tribunal of Re Easton v Repatriation Commission (1987) 6 AAR 558, at 561, in which it was stated:

The ambit of a review by the [Tribunal] is necessarily influenced by the ambit of the steps and proceedings that have taken place prior to its review for the function of the [Tribunal] is to review a decision.

16.    That statement commended itself to Davies J in Jebb v Repatriation Commission [1988] FCA 105; (1988) 80 ALR 329, at 333 – 334, and, in turn, to Kirby J in Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286, at [45]. More recently, this notion of the Tribunal as part of an administrative continuum has commended itself to Bell, Gageler, Gordon and Edelman JJ in Frugtniet v Australian Securities and Investments Commission [2019] HCA 16; (2019) 266 CLR 250, at [53], and to a Full Court of the Federal Court in AAL19 v Minister for Home Affairs [2020] FCAFC 114, at [24].

17.    The notion of the Tribunal forming part of a continuum has a number of ramifications. For present purposes, the pertinent ramification is that the Tribunal’s reasons will necessarily be coloured and shaped by prior positions taken by the parties and by matters which are or are not at issue, either as revealed by statements of facts, issues and contentions or otherwise. Unsurprisingly, the Tribunal will react to particular emphasis given to particular issues by the parties to a particular review application.

18.    In this particular review application, Mr Savaiinaea ’s statutory declaration, which followed the initial making of the representation, and was apparently prepared with the benefit of legal representation, made only passing reference to the Australian resident niece and nephews. There was, quite fairly and appropriately, reference, although not emphasis, on these particular minors also falling within the class prescribed in the Minister’s direction as to those whose interests had to be taken into account in the statement of facts, issues and contentions and oral submissions.

19.    Even though it is only to be expected that the Tribunal will react to the way in which a case is presented, and in this case I am quite sure [140] is explicable on that basis, that does not mean that the Tribunal is excused from considering a subject which it is obliged by statute and ministerial direction to take into account. In many ways, at the heart of this case lies an intersection between what I have described as those two administrative law principles.

19.    Had there been no reference at all to the niece and nephews, I am quite sure that Uelese would have bound me to hold that the Tribunal’s decision was attended with jurisdictional error of the kind that grounds 1 and 2 seek to agitate. That, however, is not the case. The subject of the interests of these particular minors has been addressed, but the way in which it has been addressed is, in my view, a reflection of the way in which the case was presented.

20.    In other words, in my view, the Tribunal has not failed to comply with its statutory obligation as described in Uelese. Rather, what it has done is to appreciate that though it was obliged to consider, and has considered, those interests, the particular emphasis before the Tribunal was not on those interests. It is certainly possible, if one starts with and reads in isolation the most eloquent handwritten passages in Mr Saviinaea’s initial representation, to form a view that much more attention, indeed, ought to have been given to the interests of his minor Australian resident niece and nephews. It is just that those interests, though they were not neglected in consideration, received the attention or the prominence which those then representing Mr Savaiinaea gave them in submissions and which he himself gave them in his statutory declaration. It is nothing to the point, if one reaches the conclusion that the interests were considered, that other members of the Tribunal may have chosen to give greater detail to the statements made by Mr Savaiinaea concerning them.

21.    Another factor which also may explain the way in which [140] is cast is if one looks, for example, to the statement of the mother of these particular minors. The emphasis in that statement is on the impact on her and Mr Savaiinaea’s mother of deportation rather than emphasis on the impact on her children.

65    Clearly, the Tribunal was under a statutory duty to consider the best interests of a minor child whose life would be affected by the removal from Australia of the appellant. The importance of this statutory duty was addressed by the High Court in Uelese, in particular at [64] where French CJ and Kiefel, Bell and Keane JJ said:

Whether or not the appellant sought to make the interests of those children a positive aspect of his case, the Tribunal was obliged by s 499 of the Act and the terms of Direction 55 to take into account the interests of any minor children of which it was aware in determining his application for review. By virtue of s 499 and Direction 55, one of the primary considerations for the Tribunal concerned the interests of children who were not themselves represented in the proceedings before the Tribunal. The requirement of cl 9.3 of Direction 55 to consider the best interests of minor children in Australia affected by the decision is imposed on decision-makers in terms which are not dependent on whether an applicant for review argues that those interests are relevant as part of his or her "case".

66    However as O’Bryan J (Katzmann J agreeing) pointed out in Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 125 at [181],

Nevertheless, the Tribunal is required to assess the best interests of the child based on the evidence and submissions before it and is not under a general duty to inquire about matters not raised: Sami v Minister for Immigration and Citizenship [2013] FCAFC 128; 139 ALD 1 (at [30]); see also Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; 259 ALR 429 (at [25]).

(emphasis added)

67    Justice O’Bryan cited SZIAI as an authority for that proposition. In that case at [25]-[26] the plurality of French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ explained (in summary) that:

    It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction.

    However, this will not be the case if, for example, there is nothing on the record to indicate that any further inquiry by the Tribunal could have yielded a useful result.

68    The case before the Tribunal in this case was quite different from that before the Tribunal in Uelese.

69    In Uelese a delegate of the Minister had cancelled a visa-holder’s visa on character grounds under s 501(2) of the Migration Act. Section 499 of the Migration Act required the delegate to have regard to the best interests of any minor children of the visa-holder who would be affected by the decision. The delegate exercised his discretion to cancel the visa on the understanding that the visa-holder was the father of three children. However during the hearing of the visa-holder’s application for review before the Tribunal, it became apparent that he was also the father of two other, younger children in Australia. It was not in dispute that that information had not previously formed part of the visa-holder’s case, rather it was adduced in the course of the cross-examination of a witness called on behalf of the visa-holder. In circumstances where this information had been presented orally only, the Tribunal determined the visa-holder’s application on the footing that s 500(6H) of the Migration Act precluded consideration by it of the interests of the visa-holder’s two younger children.

70    The High Court in Uelese held that s 500(6H) did not preclude the consideration of the information, and that the Tribunal had erred. In particular, the plurality observed:

54.    Section 500(6H) does not expressly limit the power of the Tribunal to conduct a review or authorise the Tribunal to give less than the "proper consideration of the matters before [it]" required by s 33 of the AAT Act.

55.    Section 33(1) of the AAT Act provides generally that in a proceeding before the Tribunal the procedure of the Tribunal is within its discretion, that it is not bound by the rules of evidence, and that the proceeding is to be conducted with as little formality and technicality as, inter alia, a proper consideration of the matters before it permits.

56.    Section 40(1)(c) of the AAT Act provides that, for the purpose of reviewing a decision, the Tribunal may "adjourn the proceeding from time to time."

57.    Section 500(6H) should not be construed to restrict the flexibility of the Tribunal to ensure procedural fairness to the parties to a review beyond what is required by its terms. Specific powers under the AAT Act that would be restricted in their operation on the Tribunal's understanding of s 500(6H) include: s 39(1), which obliges the Tribunal to "ensure that every party to a proceeding ... is given a reasonable opportunity to present his or her case"; s 33(1)(c), which allows the Tribunal to "inform itself on any matter in such manner as it thinks appropriate"; and s 33(2A)(a), which allows the Tribunal to "require any person who is a party to the proceeding to provide further information in relation to the proceeding".

(emphasis added)

71    Their Honours continued:

66.    It is apparent that the paucity of evidence referred to in the last sentence of the passage from the reasons of the Tribunal cited above was not due to the unavailability of material evidence. The Tribunal not only declined to act upon the information which was put before it by Ms Fatai, but it also failed to make even the most cursory inquiry to follow up on this information. This is not a case like Paerau v Minister for Immigration and Border Protection, on which the Minister sought to rely; here, the paucity of evidence was a consequence of the view taken by the Tribunal of the preclusory effect of s 500(6H).

(emphasis added, footnotes omitted)

72    This factual scenario is very different from that before the Tribunal in this case. We note:

    The appellant was uncle to 26 nieces and nephews, including the relevant minors;

    Statements by the parents of the five minor children in question said nothing specific about the appellant’s relationship, role or impact on their children, including the impact if the appellant was removed from Australia;

    There was no evidence before the Tribunal that the role of the appellant in the lives of his minor niece and nephews was anything other than non-parental, with engagement at family-related events and gatherings;

    In the appellant’s statement of facts, issues and contentions to the Tribunal the appellant did not suggest that the best interests of his minor niece and nephews was relevant; and

    In his case before the Tribunal the appellant’s focus in respect of the effect on minor children of his removal from Australia was on his minor biological daughter.

73    The onus lies on the appellant to establish on the balance of probabilities that a relevant matter was not considered, taking into account that the reasons of the Tribunal must be read fairly and not in an unduly critical manner: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272, BVD17 v Minister for Immigration and Border Protection [2019] HCA 34 at [38].

74    The Tribunal in this case was plainly mindful of its statutory duty to have regard to the interests of relevant minor children. We note in particular reasons of the Tribunal at [22], [25], [132]-[136], [142]. Against the background of this recognition, and on the basis of the submissions and evidence before it, at [140] the Tribunal concluded that it was unable to make a determination one way or the other as to whether it was in the best interests of the minor niece and nephews for the appellant to remain in Australia.

75    The primary Judge found that the Tribunal in the present case had regard to the interests of the appellant’s minor niece and nephews to the extent that it could by reference to the material and submissions before it. Like his Honour, we are satisfied that the Tribunal meaningfully engaged with the issue of the interests of the appellant’s minor niece and nephews.

76    We are not persuaded that the reasoning and finding of the Tribunal was affected by jurisdictional error in respect of the interests of the appellant’s minor niece and nephews. It follows that ground of appeal 1 is not substantiated.

77    As the parties accepted that ground of appeal 3 stood or fell with ground 1, it similarly follows that ground of appeal 3 is not substantiated.

Ground of appeal 4

78    It is not in dispute that ground of appeal 4 requires leave of the Court as it involves the agitation of an alleged jurisdictional error not advanced before the primary Judge.

79    Circumstances in which the Court will grant leave to raise new grounds are well settled. As this Court explained in VUAX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 158:

46    In our view, the application for leave to rely upon the sole ground of appeal now raised should be refused. Leave to argue a ground of appeal not raised before the primary judge should only be granted if it is expedient in the interests of justice to do so: O’Brien v Komesaroff [1982] HCA 33; (1982) 150 CLR 310; H v Minister for Immigration & Multicultural Affairs; and Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; (2001) 117 FCR 424 at [20]- [24] and [38].

47     In Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1, Gibbs CJ, Wilson, Brennan and Dawson JJ observed, in their joint judgment, at 7:

"It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish."

48     The practice of raising arguments for the first time before the Full Court has been particularly prevalent in appeals relating to migration matters. The Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated. Where, however, there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused. …

80    More recently see also for example comments of the Full Court in Ali v Minister for Home Affairs [2019] FCAFC 93 at [5].

81    The appellant contended that leave ought be granted to the extent that ground 4 had merit, that the Tribunal at [100]-[102] found that it could not be satisfied that there was genuine participation in the courses on which the appellant relied, and further that the appellant was not given the opportunity to answer the allegation that he had not genuinely participated in the courses.

82    No explanation has been provided by the appellant as to why these issues were not raised before the primary Judge. However, in any event, having regard to the reasons of the Tribunal, there is no merit in ground 4.

83    The Tribunal does not suggest at [100]-[102] of its reasons that the appellant did not genuinely participate in the relevant courses. Rather, the Tribunal was referring to the expert opinion of Dr Yoxall concerning the likelihood of the appellant re-offending, or whether he had been rehabilitated. In that context, the Tribunal formed the view that it could place only limited weight on the participation by the appellant in the courses for which he had produced certificates of participation. That this is clearly so was later taken up in [104] of the Tribunal’s reasons, where it continued:

104.    The Tribunal’s view is that the opinion offered by Dr Yoxall is at best, a conditional opinion, and in Dr Yoxall’s own words, the skills that the Applicant may have obtained from his participation in programs offered whilst in immigration detention are, “not sufficient for the rest of his life, and that’s not sufficient to ensure that everything - to ensure that he will stay a low risk”. Dr Yoxall’s opinion is not a conclusive endorsement that the Applicant has overcome their predilections for substance abuse (in particular alcohol), nor that they have learned to control their emotional regulation with particular regard to anger or jealousy.

(footnotes omitted)

84    In our view the interests of justice do not support the grant of leave to the appellant to rely on ground of appeal 4.

Conclusion

85    The appeal should be dismissed. Costs should follow the event.

Associate:

Dated:    7 April 2022