Federal Court of Australia

Calvey v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 104

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs as assessed or agreed.

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

REASONS FOR JUDGMENT

THE COURT:

A    INTRODUCTION

A.1     Background

1    The appellant has appealed from a decision of the Federal Court of Australia (FCA): Calvey v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1389 (J). In that decision, the primary judge dismissed an application for judicial review of the second respondent, the Administrative Appeals Tribunal’s decision: Calvey and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 277. The Tribunal had affirmed a decision of the delegate of the first respondent, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, not to revoke the mandatory cancellation of the appellant’s visa.

2    The appellant is a citizen of New Zealand, having been born there in 1987. His family moved to Australia when he was six months old where he has lived permanently, apart from a period of nearly four years when he returned to New Zealand. He has substantial ties with Australia, including fathering three children, who reside in Australia.

3    The appellant has a significant criminal history in both New Zealand and Australia as outlined by the Tribunal at [4]:

Offences of the Applicant included 25 counts of contravening domestic violence protection orders (the majority of which are aggravated offences) , one count of misleading information by prisoner, two counts of obstruct police officer, multiple drug and property offences, multiple weapons offences, numerous breaches of bail and failure to appear in accordance with an undertaking, and traffic offences including driving under the influence of drugs and having blood alcohol concentration in excess of the legal limit.

4    The appellant began offending in 2004 but from 2017 to 2020, he engaged in a significant pattern of criminal behaviour ultimately resulting in the sentence of custodial terms of 339 months (over 28 years) served concurrently. This period of criminal offending coincided with the end of his relationship with Ms JH (the mother of two of his three children) and his development of an addiction to methamphetamines.

5    On 14 May 2020, his Class TY Subclass 444 Special Category (Temporary) visa was cancelled pursuant to s 501(3A) of the Migration Act 1958 (Cth) (the Act) as the appellant had failed to pass the “character test” because he had a “substantial criminal record” as a result of being sentenced to a term of imprisonment of 12 months or more, which was being served on a full-time basis: ss 501(6)(a) and 501(7)(c).

6    On 18 May 2020, the appellant made representations to the Minister to have the mandatory visa cancellation decision revoked under s 501CA of the Act. On 27 November 2020, a delegate of the Minister found that the discretion under s 501CA(4) was not enlivened. On 7 December 2020, the appellant applied to the Tribunal for review of the delegate’s decision. On 18 February 2021, the Tribunal affirmed the delegate’s decision not to revoke the mandatory cancellation of the appellant’s visa. The appellant then made an application under s 476A(1)(b) of the Act to the primary judge seeking judicial review of the Tribunal’s decision. The primary judge dismissed his application.

A.2     Before the Tribunal

7    The proceeding before the Tribunal and the Tribunal’s reasoning focussed on the appellant’s extensive criminal history, setting out a comprehensive list of offences at [34] and categorising them at [40]: (1) domestic violence-related offending; (2) weapons-related offending; (3) drug-related offending; (4) other offending conduct; (5) offending in New Zealand; (6) conduct in custody; and (7) traffic-related offences.

8    The Tribunal considered the evidence in relation to the three primary considerations as set out in paragraph 9 of Direction 79:

(a)    the protection of the Australian community from criminal or other serious conduct (Primary Consideration A), having regard to paragraphs 13.1.1 and 13.1.2 of the Direction and the principles outlined in paragraph 6.3;

(b)    the best interests of minor children in Australia (Primary Consideration B), having regard to sub-paragraph 13.2(4) of the Direction; and

(c)    the expectations of the Australian Community (Primary Consideration C), having regard to sub-paragraph 13.3(1) of the Direction.

9    This appeal concerns two matters. First, whether the Tribunal’s alleged failure to consider the appellant’s eldest child’s views, in the context of considering its obligations under paragraph 13.2(4)(f) of Direction 79, when it otherwise considered those views within the broader rubric of its paragraph 13.2 considerations, was an error which was material. Secondly, whether the Tribunal was obliged to consider and thereafter disclose its reasoning in relation to a number of matters regarding the appellant’s eldest child.

B    Summary of the relevant statutory provisions

10    Section 501(3A) provides for the mandatory cancellation of a visa if the Minister finds that the person does not pass the character test:

501      Refusal or cancellation of visa on character grounds

(3A)     The Minister must cancel a visa that has been granted to a person if:

(a)     the Minister is satisfied that the person does not pass the character test because of the operation of:

(i)     paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or

………

and

(b)    the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.

11    A person will not pass the character test where they have a substantial criminal record, which arises where a person has been sentenced to a term of imprisonment of 12 months or more:

501     Refusal or cancellation of visa on character grounds

    …

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

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

…

(7)     For the purposes of the character test, a person has a substantial criminal record if:

(a)    the person has been sentenced to death; or

(b)     the person has been sentenced to imprisonment for life; or

(c)      the person has been sentenced to a term of imprisonment of 12 months or more; or

…

12    Section 499 of the Act confers upon the Minister the power to give written directions about how to exercise his or her powers under the Act:

(1)     The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:

(a)     the performance of those functions; or

(b)     the exercise of those powers.

(2A)     A person or body must comply with a direction under subsection (1).

13    Direction 79 was the relevant Direction in relation to s 501CA revocation decisions as at 27 November 2020 when the delegate refused to revoke the cancellation of the appellant’s visa, and as at 18 February 2021 when the Tribunal affirmed the delegate’s decision.

C    Direction 79

14    Direction 79 requires that the decision-maker consider a number of matters (though is not constrained in his or her consideration of only those matters) when determining whether, upon the request of an applicant whose visa has been cancelled, to revoke that cancellation by reason of the best interests of a child who may be affected by the cancellation of the visa: paragraph 13.2(1).

15    Sub-paragraph 13.2(4) is in the following terms:

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

…

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

(a)     The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);

(b)         The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;

(c)         The impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;

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

(e)         Whether there are other persons who already fulfil a parental role in relation to the child;

(f)         Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);

(g)         Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and

(h)         Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.

D    Nature of the Review before the Tribunal

16    The appellant sought review of the Minister’s decision before the Tribunal pursuant to the rule outlined by s 501CA(4), which relevantly states:

501CA     Cancellation of visa—revocation of decision under subsection 501(3A) (person serving sentence of imprisonment)

.....

(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.

17    The appellant conceded that he did not pass the character test prescribed by s 501(6). Accordingly, his sole ground of review focused on whether there was “another reason” why the original decision should be revoked pursuant to s 501CA(4)(b)(ii).

18    Four arguments were raised in support of that ground:

(a)    the appellant’s limited risk of reoffending;

(b)    the best interests of minor children in Australia;

(c)    the duration and strength of the appellant’s ties to Australia; and

(d)    the impediments that the appellant would face on removal to his country of citizenship.

E    The Tribunal’s decision

19    The Tribunal’s focus, given the concession regarding the appellant not passing the character test prescribed by s 501(6), concerned whether there was any other reason why the decision to cancel his visa should be revoked. The Tribunal found that two of the three primary considerations – Primary Consideration A (the protection of the Australian community from criminal or other serious conduct) and Primary Consideration C (the expectations of the Australian community) – both weighed heavily in favour of non-revocation.

20    With respect to Primary Consideration A, the Tribunal considered the appellant’s criminal history by reference to the first factor in paragraph 13.1.1 of Direction 79 – nature and seriousness of the conduct. The Tribunal found that sub-paragraphs (a)–(f) were enlivened, being the majority of the factors in paragraph 13.1.1(1) (at [95]–[132]), and also examined “other conduct” as provided in the chapeau to the factors at paragraph 13.1.1(1): at [134]–[145]. Based on this evidence, the Tribunal then concluded that the nature and seriousness of the appellant’s offending was “very serious”: at [146].

21    The Tribunal then considered the second factor in paragraph 13.1.2 – risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct, which has two factors: (a) the nature of the harm to individuals or the Australian community should the appellant engage in further criminal or other serious conduct; and (b) the likelihood of re-offending.

22    In relation to sub-paragraph 13.1.2(a), the Tribunal found at [155]–[156]:

155.    The Tribunal is of the view that given the Applicant’s past propensity towards committing acts of domestic violence combined with his past history for weapons and drug related offences, is conduct that, if repeated, poses a significant risk to a member or members of the Australian community – especially to women – and children that are on the periphery to this offending.

156.    This conduct if repeated in the future, could result in very serious psychological harm and/or physical harm to members of the Australian community. Its level of seriousness (in the Tribunal’s view) would not preclude the risk of catastrophic harm to any future victim.

23    In relation to sub-paragraph 13.1.2(b), the Tribunal found that there was a “significant likelihood” of the appellant re-offending and as a result, the risk to the Australian community was “not acceptable”: at [182]–[183].

24    The Tribunal ultimately found, after extensive reasoning:

Conclusion: Primary Consideration A

185.     The Tribunal has had regard to the provisions of paragraph 13.1.1 and 13.1.2 of the Direction, as well as the principles outlined in paragraph 6.3. The Tribunal finds:

(i)     the nature of the Applicant’s criminal offending is viewed very seriously;

(ii)     if the Applicant’s criminal offending were to be repeated, the Tribunal is of the view that it has the capacity to cause very serious physical and or psychological harm (which may not preclude catastrophic harm) to innocent members of the Australian community is a real risk in the Tribunal’s mind; and

(iii)     there is a significant likelihood of the Applicant re-offending due to the incomplete nature of the Applicant’s rehabilitation with respect to factors leading to his risk of recidivism.

186.     In consideration of all the evidence and each of the relevant factors contained in the Direction, the Tribunal finds that Primary Consideration A weighs very heavily in favour of non-revocation.

(Emphasis added).

25    With respect to Primary Consideration C, the Tribunal dealt with paragraph 13.3(1) and then set out the factual circumstances relevant to assessing the weight attributable to Primary Consideration C. The Tribunal concluded:

Conclusion: Primary Consideration C

249.    The Tribunal is of the view that the above factors, read as a whole in the context of this case, weighs very heavily in favour of not revoking the cancellation of the Applicant’s Visa.

250.    The Tribunal accordingly finds that Primary Consideration C is of a very heavy weight in favour of affirming the non-revocation decision under review.

(Emphasis added).

26    The application before the primary judge and maintained in this appeal did not challenge any of the Tribunal’s findings with respect to Primary Consideration A or C but centre on the Tribunal’s consideration of Primary Consideration B (the best interests of minor children in Australia).

27    The Tribunal identified correctly what the Direction required in this respect, namely to determine whether revocation is in the best interests of a child who may be affected by cancellation of the appellant’s visa. The appellant has three biological children, one child from Ms AG (Child 1) and two children from Ms JH: at [191].

28    The Tribunal extracted the paragraph 13.2(4) factors and thereafter addressed in seriatim each of them, making factual findings and forming conclusions as to the degree to which each of those factors weighed in its consideration: at [197]–[240].

29    The Tribunal noted that the appellant was involved in Child 1’s life “four to five years” before the Tribunal’s decision (at [198]) and had reconnected through text messaging and phone calls (at [199]) as well as the written correspondence dealt with later in this decision. The Tribunal accepted the appellant has a relationship with Child 1: at [201].

30    The Tribunal found in relation to the two children of Ms JH that the appellant had not had contact with them since 2017 and that mediation as to formal parenting orders would be required to re-establish contact: at [202].

31    The Tribunal ultimately found, with respect to Primary Consideration B:

Conclusion: Primary Consideration B

238.     The Tribunal refers to the following findings:

(i)     the evidence of the Applicant, and submissions before the Tribunal with respect to the relationship the Applicant has with his biological children, and that such a relationship may be resumed (in a physical and present sense) should the Applicant be allowed to remain in Australia;

(ii)     the interrupted role the Applicant has played in the life of his biological children, and his complete absence from their lives as a result of his more recent criminal offending and subsequent incarceration;

(iii)     the reality that the Applicant’s biological children are cared for by their respective mothers;

(iv)    the absence of any independent or expert evidence about the adverse impact upon the Applicant’s biological children as a result of the Applicant’s current or possible future absence from their lives;

(v)     the Applicant’s capacity to maintain contact with his biological children via digital platforms from a foreign location;

(vi)     the moderate measure of weight the Tribunal has attributed to sub-paragraphs (a), (b), (d), and (e) of paragraph 13.2(4) of the Direction.

(vii)     the neutral position the Tribunal has taken in relation to factor (c) of paragraph 13.2(4) of the Direction; and

(viii)     factors (f), (g), and (h) carry no weight and are not determinative of any finding about this Primary Consideration B.

239.     The Tribunal is of the view that the best interests of the relevant minor children overall weighs moderately in favour of revocation of the decision to cancel the Applicant’s Visa.

240.     The Tribunal qualifies this finding by confirming that the weight the Tribunal has attributed to Primary Consideration B is of a moderate weight only, and does not in any way, outweigh the very heavy and determinative weight the Tribunal has attributed to Primary Consideration A.

32    For reasons which will be revealed later, it is notable that at [240], the Tribunal found that despite attributing “moderate weight” to this consideration, it did not “in any way, outweigh the very heavy and determinative weight the Tribunal” attributed to Primary Consideration A.

E.1    The content of the submissions below regarding the evidence of the children

33    Central to any judicial review application before the primary judge and on appeal is a consideration of the representations, submissions and evidence as before the Tribunal, not any subsequent recasting of the same: Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; 216 CLR 473 at [1].

34    Relevantly, with respect to the issue upon which this appeal centres, the appellant’s only written submission before the Tribunal with respect to the best interests of the minor children comprised six paragraphs, and is extracted as follows:

Primary Consideration 2 – Best Interest of Minor Children

32.     Paragraph 13.2 of Direction 79 requires the Tribunal to determine whether revocation is in the best interests of each minor child in Australia.

  33.     The Applicant is father to three minor children in Australia:

a)     [Child 1];

b)     [Child 2]; and

c)     [Child 3].

34.     The Applicant has some contact with his son [Child 1], and [Child 1’s] mother [AG] is supportive of the Applicant’s relationship with [Child 1]. If the Applicant is allowed to remain in Australia, he intends to have physical visits with [Child 1] and ultimately have care of [Child 1] for at least some of the time.

35.     The Applicant has had limited recent contact with his younger sons [Child 2]; and [Child 3]. Their mother [JH] is not opposed to the Applicant having contact with their sons, but wishes for those parenting arrangements to be formalised by mediation or Court order. If the Applicant is allowed to remain in Australia, he intends to approach Relationships Australia to commence the mediation process with [JH] so that a formal agreement can be reached.

36.     The Applicant acknowledges that, if he is allowed to remain in Australia, he will not have immediate care of his children. However, if he is allowed to remain he is committed to positively engaging with his children so that they are not forced to grow up without their father.

37.    The Applicant submits that it is in his children’s best interests to have the opportunity to have a geographically proximate relationship with he [sic] Applicant. In those circumstances, we submit that this primary consideration weighs heavily in favour of revocation.”

35    The relevant evidence concerning the best interests of the appellant’s children comprised of the appellant’s evidence and the evidence of the mothers of the children as to their respective children’s views. There was no direct evidence from the children before the Tribunal nor any expert evidence regarding the same.

36    At the conclusion of the hearing, both parties made oral submissions. The relevant parts of the appellant’s submissions regarding the best interests of the children before the Tribunal (and as identified by the appellant on appeal) were as follows:

… And I think the applicant’s evidence today was frank and truthful. I think the applicant’s evidence about the role he wanted to play in his sons’ lives, and specifically the truthfulness with which the applicant gave evidence about his lack of relationship, or significant relationship, with his sons over the past few years was particularly indicative of this.

I don’t blame applicant’s [sic] who come before the Tribunal and embellish or overemphasise or overstate their relationship with their children when it comes into this forum, but of the applicant’s evidence, in fact, didn’t seem to embellish or overstate, you know, put higher than it was, his relationship with his children in the years before he was incarcerated. I think that’s one reason why I (indistinct) the Tribunal to form a positive view of the applicant’s credibility because of his (indistinct) to having the Tribunal describe (indistinct) relationship with his sons over the past few years.

(Indistinct) his contact with his sons had been limited, but at the same time, the applicant’s demeanour and the way in which he gave evidence, to my mind clearly showed that he regretted the decisions he’d made in relation to relationship he’d had with sons over the past few years, and also genuinely wanted to be a positive role model in his sons’ lives moving forward. I think the Tribunal would be on safe grounds, having had the opportunity to see the applicant’s determination (indistinct) in the applicant’s genuineness about those things. As I say, especially in circumstances where, you know, he gave honest and truthful evidence about the state of the relationship before his incarceration, during the period of the drug use.

37    Then when making specific submissions about Primary Consideration B, the appellant’s representative before the Tribunal submitted:

I think, importantly today, the mothers of all the children, all the applicant’s children, indicated that they considered it was in their children’s best interests that the applicant be allowed to remain in Australia to have - maintain meaningful, in-person relationships with their sons.

Particularly, [Mother of Child 1] expressed, and I’m paraphrasing that, her son [Child 1] would be extremely adversely affected if he was deprived of the opportunity to have any personal relationship with his father. And she also cited the difficulties that [Child 1] has been having psychologically through to the present day (indistinct) with his biological father. And in those circumstances, my submission would be that a non-revocation decision would have a significant adverse affect on all three of the applicant’s minor children, and specifically, his oldest child, [Child 1], having regard to the evidence of [Mother of Child 1] and the problems he’s had to date.

My submission is that he would be particularly adversely affected over the next six to seven years before he turns 18. And my submission is that he’s already having psychological difficulties prior to reaching his teenage years, and on the proviso that I’m not an expert in these matters, but my assumption, drawing on experience and judicial knowledge, if I can call it that, would be that I wouldn’t expect those issues to get any better as [Child 1] progresses through adolescence and into young adulthood. As I say, I don’t express that as an expert opinion, just as an observation which I think is open to the tribunal to draw on its own knowledge.

F    The primary judge’s reasons

38    Before the primary judge, the appellant claimed first, that the Tribunal had misconstrued sub-paragraph 13.2(4)(f) of Direction 79 by incorrectly finding, at [232] of its decision, that the Tribunal did not have “the views of the Applicant’s biological children before it”. The primary judge was only called on to determine whether the error was “material” given the Minister’s concession that the finding was incorrect: at J [33]–[34], [82].

39    The primary judge found that the conceded error was not material for the reasons set out at J [85]–[93]:

85.    In order for this error to be jurisdictional, it must be material, in the sense that compliance could realistically have resulted in the making of a different decision: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 (SZMTA) at [45]: MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 95 ALJR 414 (MZAPC) at [2]-[4]. Existence or non-existence of a realistic possibility that the decision could have been different is a question of fact which the applicant in an application for judicial review of the decision on the ground of jurisdictional error bears the onus of proof: MZAPC at [2]-[4]; SZMTA at [46].

86.     Given the factor that is said not to have been considered, in the circumstances of this case, the applicant has not established that there is a realistic possibility the decision would have been different.

87.    Accepting that the Tribunal approached its task by attributing a weight to each factor and then considering the conclusion in respect to sub-paragraph 13.2, and the error related to sub-paragraph (f), nonetheless, a plain reading of the Tribunal’s reasons reflect that it approached its assessment of the best interests of the child on the basis that the eldest child wanted the applicant to stay in Australia and was desperate to have a relationship with him. That fact of the child’s wishes was known and considered by the Tribunal. Moreover, the error in relation to this sub-paragraph relates only to one of three children. The findings in respect to sub-paragraph 13.2, as reflected in [238] recited above at [24], encompasses all the applicant’s children and not just his eldest child. Moreover, the applicant’s submission as to the potential impact of sub-paragraph (f) ignores the context in which the conclusion in respect to sub-paragraph 13.2 were made. The submissions made are artificial.

88.    The impact of the applicant’s removal was also taken into account in Primary Consideration C, at [248], and in the other considerations. In respect to the other consideration at [267] the Tribunal found that the impact on the applicant’s biological children and the applicant’s family and friends were he to be removed from Australia weighed heavily in favour of the applicant.

89.    However, as summarised by the Tribunal at [185], recited above at [17], it found that Primary Consideration A weighed heavily in favour of non-revocation. The same finding was made at [250] in respect to Primary Consideration C at [290] where the Tribunal concluded:

The Tribunal has outlined the weight attributable to the Other Considerations. The Tribunal is of the view that any weight the Tribunal has found in favour of revocation from the Other Considerations (even when combined with each other and Primary Consideration B), does not in any way outweigh the very significant and determinative weight the Tribunal has attributed to Primary Consideration A and Primary Consideration C of the Direction.

90.    The weighing process of the Considerations is in [289]-[290] of the reasons, referred to above at [28], and is unnecessary to repeat.

91.    Given the findings of the Tribunal, the applicant has not established that the assessment of the eldest child’s wishes under sub-paragraph (f) could realistically have led to the Tribunal making a different decision.

92.    Moreover, I note that even if the applicant had established that other material was not properly considered (as relied on in ground 2), it has not been established it could realistically have resulted in the Tribunal making a different decision.

93.    The applicant has not discharged his onus of establishing that the error is material. As a consequence the applicant has not established any jurisdictional error.

40    The second ground of review before the primary judge, outlined at J [35] of her Honour’s reasons, concerned whether the Tribunal had failed to properly consider: first, the appellant’s representation that the best interests of his eldest child was for a revocation decision to be made (including the essential integers of that representation and the associated evidence); and secondly, the factors or considerations in paragraphs 13(2)(b) and 13.2(4)(a), (b), (d) and (f) of Direction 79.

41    The appellant identified, before the primary judge, five matters which were said to each give rise to jurisdictional error, which the primary judge summarised at J [36] of her Honour’s reasons. Her Honour thereafter carefully considered each of these matters, from J [48]–[81] of her Honour’s reasons and ultimately concluded that none of these matters established any error.

G    Consideration and disposition of the grounds of appeal

42    The two grounds of appeal are framed as follows:

Ground 1

The learned primary judge erred in finding that the errors committed by the Second Respondent (Tribunal) in misconstruing, misunderstanding and failing to properly consider paragraph 13.2(4)(f) of Direction 79 (and the views of the eldest child) were immaterial errors. The primary judge ought to have found that, had the Tribunal not committed the aforementioned errors, there was a realistic possibility that the Tribunal’s decision could have been different.

Ground 2

The learned primary judge erred in failing to find that the Tribunal had fallen into jurisdictional error in failing to properly consider: (a) the Appellant’s representation that the best interests of his eldest child was for a revocation decision to be made (including the essential integers of that representation and the associated evidence); and (b) the factors/considerations in paragraphs 13(2)(b) and 13.2(4)(a), (b), (d) and (f) of Direction 79. The primary judge ought to have found that (sic) that the Tribunal fell into error in the aforementioned ways and that such errors were material errors.

43    The central focus of this appeal concerns (however framed in grounds 1 and 2) whether the Tribunal, in deciding not to revoke the cancellation of the appellant’s visa, undertook its task as required under the Act. A qualitative assessment of what the Tribunal did is required, as culminated in the whole of its reasons, against the backdrop of how the case was run before the Tribunal.

44    The Tribunal was required to conform with its obligations as they arose under Direction 79 and as recently elucidated by the High Court in Plaintiff M1-2021 v Minister for Home Affairs [2022] HCA 17; 400 ALR 417 to:

24.     … read, identify, understand and evaluate the representations. Adopting and adapting what Kiefel J (as her Honour then was) said in Tickner v Chapman, the decision-maker must have regard to what is said in the representations, bring their mind to bear upon the facts stated in them and the arguments or opinions put forward, and appreciate who is making them. From that point, the decision-maker might sift them, attributing whatever weight or persuasive quality is thought appropriate. The weight to be afforded to the representations is a matter for the decision-maker. And the decision-maker is not obliged "to make actual findings of fact as an adjudication of all material claims" made by a former visa holder.

25     It is also well-established that the requisite level of engagement by the decision-maker with the representations must occur within the bounds of rationality and reasonableness. What is necessary to comply with the statutory requirement for a valid exercise of power will necessarily depend on the nature, form and content of the representations. The requisite level of engagement – the degree of effort needed by the decision-maker – will vary, among other things, according to the length, clarity and degree of relevance of the representations. The decision-maker is not required to consider claims that are not clearly articulated or which do not clearly arise on the materials before them.

(Footnotes omitted).

45    The disposition of both appeal grounds involves consideration being given to what Directions made under s 499 require of decision-makers. First, Direction 79 is not an exhaustive universe; it refers to matters that a decision-maker must consider but does not confine what may be taken into account: see Plaintiff M1 at [16]. Secondly, there will necessarily be overlap in the evidence, submissions and weight given to the consideration of each of the factors identified in paragraph 13.4(2) such that a reviewing court must exercise caution when considering the Tribunal’s consideration of each of the factors. A substantive rather than form-driven review must be undertaken. Thirdly, and related to this second point, the decision-maker is not necessarily required to address every consideration explicitly in their reasons.

46    It is notable with respect to the bases of each of the grounds of appeal, that the appellant, over the course of each of the various stages of decision-making constituting the system of judicial review, has recasted and narrowed its focus. Accordingly, it remains paramount that this Court consider the forensic context in which the Tribunal undertook its task: S395/2002 at [1].

G.1    Disposition of Ground 1

47    The appellant submits that the failure to engage in such a process is self-evident by reason of the Tribunal’s finding, when specifically dealing with paragraph 13.2(4)(f) of the Direction:

231. Sub-paragraph (f) of paragraph 13.2(4) of the Direction requires decision makers to consider any known views of the child (with those views being given due weight in accordance with the age and maturity of the child).

232.     In circumstances where the Tribunal does not have the views of the Applicant’s biological children before it, the Tribunal is unable to afford sub-paragraph (f) of paragraph 13.2(4) of the Direction any measure of weight.

(Original emphasis).

48    Such a finding was purportedly in error by reason of the fact that there was evidence led before the Tribunal concerning the “known views” of the appellant’s eldest child, including from the child’s mother who gave evidence as to her understanding of her child’s “desire to have a relationship with his father” and where she stated “I know that [eldest son] wants nothing more than to have a good relationship with his father”.

49    The appellant submits that by reason of there being evidence before the Tribunal of this kind, but not from the child or children themselves, the Tribunal had “misconstrued, misapplied and misunderstood [paragraph] 13.2(4) of the Direction”.

50    The Minister conceded before the primary judge at J [33] that the finding at [232] of the Tribunal’s decision was incorrect but submitted that the error was not material and therefore the appellant had not established jurisdictional error: at J [34].

G.1.1    Was the Tribunal incorrect to find that there were no known views of the Appellant’s biological children?

51    Despite the concession made by the Minister, the Court has some reservations about whether in fact the Tribunal was in error in making its finding at [232] of its decision for the following reasons:

52    First, it is clear from the Tribunal’s reasoning that the Tribunal considered the evidence from the eldest child’s mother as to the child’s views at multiple points in the decision when considering other aspects of the paragraph 13.2(4) indicia:

(a)    the nature and duration of the relationship between the child and the appellant, under paragraph 13.2(4)(a) of the Direction at [200];

(b)    the extent to which the appellant was likely to play a positive parental role in the future, under paragraph 13.2(4)(b) of the Direction at [209], [228]; and

(c)    the likely effect that separation would have on the child, under paragraph 13.2(4)(d) of the Direction at [218].

53    Secondly, it is noteworthy that the Tribunal’s last reference to this evidence occurs proximate to the Tribunal’s finding at [232], some 12 paragraphs earlier in its reasoning.

54    Thirdly, there is some significance to what precedes [232], the last reference in the Tribunal’s reasoning to the evidence of the eldest child’s mother as to her perception of the child “desperately want[ing] a relationship with his father” and to her evidence as to her inability to travel with the child to visit the appellant in New Zealand should he be deported: at [218]–[219]. The Tribunal found (a finding which is not challenged by the appellant on appeal, although sought to be characterised differently as going to “impact’ rather than the consideration of sub-paragraph (f)):

[222]     Aside from submissions of the Applicant and their respective mothers, there is no evidence of the views of the relevant children expressing or delineating any adverse effect upon them were the Applicant to be removed from Australia.

55    This paragraph informs any interpretation of the Tribunal’s reasoning and particularly its reasoning at [232]. It appears readily apparent that the Tribunal:

(a)    took into account those matters about which the appellant claims it failed to consider in its consideration of the paragraph 13.2(4) considerations – the Tribunal makes specific reference to the evidence in its consideration of sub-paragraphs (a), (b) and (d) of paragraph 13.2(4): [200], [209], [218];

(b)    described the evidence of the children’s respective mothers loosely as “submissions” given the conclusory statement in [222] immediately after its consideration of the evidence of both mothers in paragraphs [218]–[221];

(c)    described the evidence of the children’s mothers’ as to the children’s views in this way adopting the formulation in the oral closing submission of the appellant’s representative, namely the indications of the “the mothers of all the children” as to what they “considered” was in their children’s best interests (that their father be allowed to remain in Australia), as extracted at [37] of this decision; and

(d)    understood the evidence, at its highest, to be that there was no direct evidence from the children as to their known views but only as described by their mothers. The same was conceded by the appellant at the Full Court appeal hearing.

56    The appellant submitted that it was not open for the Court to understand [231] and [232] in the context of [222] as simply stating the true factual position, which was that the Tribunal did not have the views of the children in a direct sense. In support of this position, the appellant contended that [222] concerned evidence regarding the “impact” on the children and whether they would be “adversely affected” if their father was removed and not their known views “about whether they want [their father] to remain”. The Court does not consider this to be a valid point of distinction. The Tribunal’s consideration at [222] arises in the context of a consideration of the likely effect that any separation would have on the child. Sub-paragraph (f) does not specify or limit what of any “known views” of children are to be taken into account, save that those views arise in the context of a consideration of their “best interests”, as the chapeau to paragraph 13.2(4) indicates.

57    It may have been open for the Minister not to concede error on the basis that it is arguable that paragraph 13.2(4)(f) is concerned with direct evidence of any children themselves. First, the sub-paragraph is prefaced with “any”, suggesting that it would not be necessarily ordinary for such evidence to be obtained and if a child does express a view directly, it must be taken into account. Secondly, a reading of “evidence” to comprise “direct evidence” explains why the words in parenthesis are included “(with those views being given due weight in accordance with the age and maturity of the child)” (original emphasis).

58    To the extent that a concern was raised by the appellant as to the potential consequence of such an interpretation – being that it is said that it would prelude weight being given to second-hand evidence of the views of children or that children would be compelled to give direct evidence – such a concern appears to arise from a mistaken view that the parameters of the Direction 79 considerations are an exhaustive universe which they are not. The appellant’s counsel rightly conceded the same. Their defined purpose is as a “guide” (paragraph 6.1(4)), where the decision-maker must take into account the Part A, B or C considerations, as relevant, but is not limited by them in the absence of any express words to that effect: see paragraphs 7 and 8 of Direction 79; see also the discussion of the subsequent Direction 90 in BOE21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 99 at [22] and [23].

59    Regardless, this Court is not required to resolve this question, even if the appellant’s argument is accepted that the Tribunal was incorrect in concluding in one paragraph of its reasons that there was no evidence of the “known views” of the appellant’s children. This is because there is a difficulty in accepting as a reasonable possibility that the Tribunal’s final decision could have been different had the Tribunal expressed a different conclusion in that paragraph for the following reasons.

G.1.2    Materiality

60    The appellant submitted that the alleged error was material because there was no separate attribution of weight to it and thus it is unknown “what weight should be ascribed to the known views of the child as a standalone factor”. In essence, the appellant submitted that each sub-paragraph requires a particular intensity of consideration, even if the subject matter has been addressed under other paragraphs. In the appellant’s written submissions, he relied upon Minister for Immigration and Citizenship v Khadgi [2010] FCAFC 145; 190 FCR 248 at [63(a)] to assert that where there are multiple mandatory considerations, the decision-maker “must genuinely have regard to each and every one of those considerations”. However, the appellant’s counsel conceded, during oral argument, that this level of proscription is not what is ordinarily required of a decision-maker but submitted that where the Tribunal has undertaken the process in this particular way, then in effect the Tribunal is held to a higher standard of what is required to be considered. The appellant relied upon no authority to support this proposition and it is not apparent how this follows. Also, Khadgi must be approached with some caution because it was a case about a statutory provision concerning visa cancellation based on the provision of incorrect information by a visa holder in obtaining a visa, which required prescribed circumstances of a factual nature to be taken into account, not the operation of the particular regime for visa cancellation revocation in s 501CA(4) for which a direction under s 499 had to be complied with as to a range of considerations of quite a different nature.

61    The appellant submitted that the error associated with paragraph 13.2(4) was material for seven reasons:

(a)    by reason of the Tribunal, structuring its reasons and addressing each factor in sub-paragraph 13.2(4), it attributed weight to each factor and accordingly failed to give weight to sub-paragraph (f);

(b)    the known views of an adversely affected child are “objectively significant”, upon which it was open for a decision-maker to place considerable weight;

(c)    the known views of the child went to a mandatory consideration which could not be “lightly disregarded in a materiality assessment”;

(d)    by reason of (a)–(c), and that Primary Consideration B could not be “ascertained by some readily available formula or calculus”, there was a realistic possibility that the Tribunal could have attributed higher weight to Primary Consideration B;

(e)    by reason of (d), “the Tribunal’s placing of higher weight on the best interests of the child may have led to it placing less (or more) weight on other considerations in the Appellant’s favour”;

(f)    by virtue of the fact that the Tribunal’s reasoning with respect to sub-paragraph (f) was phrased such that it “carr[ied] no weight and [was] not determinative of any finding about this Primary Consideration B”, the Tribunal’s reasoning implied that paragraph 13.4(2) was “capable” of being determinative of the weight to be attributed to Primary Consideration B (emphasis in original); and

(g)    the four alleged errors in the primary judge’s reasoning, if corrected, had a realistic possibility of affecting the result.

62    For the reasons which follow, the Court is not persuaded that the error was material.

63    It is useful to make the following general observations.

64    First, unlike other cases where there was an absence of any consideration in the reasoning at all of documents or information being considered, here the Tribunal expressly considered the evidence which the appellant considers of particular significance in three parts of its reasons, as set out at [52] of this decision.

65    The reviewing court will need to take into account “the whole of the reasons, read in the context of the representations made and other information available”: DQM18 v Minister for Home Affairs [2020] FCAFC 110; 278 FCR 529 at [45] (emphasis added). This includes where the Tribunal is addressing each of the aspects of Direction 79 it is required to consider. As addressed at [58] of this decision, the Tribunal’s task when addressing the mandatory considerations under Direction 79, requires that it must take into account the Part A, B or C considerations. The Tribunal is not required to address individually each of the sub-paragraphs under paragraph 13.4(2) given the degree of overlap that may occur in evidence, submissions and reasoning with respect to each aspect and where the Tribunal does, or fails to, it cannot be assumed that the relevant consideration has not been otherwise taken into account when the Tribunal deals with other considerations.

66    Secondly, to the extent that the appellant’s concern arises from a failure to give weight to a particular factor, attention must first be given to the discretion under Direction 79 with respect to the weighting exercise. This guide suggests that primary considerations will “generally” be given greater weight (but for which the discretion remains (paragraph 8(4)) and where one or more primary consideration may outweigh another: paragraph 8(5). Accordingly, the Tribunal’s discretion as to weight remains despite the consideration being mandatory.

67    Thirdly, as to whether the error was material, it may be addressed by positing whether there was anything that could have come under sub-paragraph (f) which was not covered by or referred to in sub-paragraphs (a), (b) and (d) when the Tribunal dealt with those sub-paragraphs as discussed at [52] of this decision. The appellant conceded that there was not any further information which would have been considered by the Tribunal that was not otherwise considered but submitted that sub-paragraph (f) required the Tribunal to consider the same information in a different way.

68    The appellant contended that the court should not take into account the numerous references made elsewhere in the Tribunal’s decision to the known views of the child because of the “approach” that the Tribunal took by attributing weight to each paragraph 13.2(4) factor and therefore in effect, attributing no weight to what was an “objectively significant”, “mandatory” consideration. This logic assumes that the Tribunal attributed no weight to the “views of the children” in its reasoning, when it is clear that it did. There was specific consideration of the very evidence about which the appellant was at pains to highlight in the context of the Tribunal’s consideration of: (a) the nature and duration of the relationship between the child and the non-citizen (noting the Direction states that less weight should generally be given where there have been long periods of absence, or limited meaningful contact); (b) the extent to which the non-citizen is likely to play a positive parental role in the future; and (d) the likely effect that any separation from the non-citizen would have on the child: see [52], [55(a)] of this decision.

69    We agree with the reasoning of the primary judge at J [87] that the appellant’s submission “ignores the context in which the conclusion in respect to sub-paragraph 13.2 were made” and were “artificial”.

70    The appellant also contended that given that questions of weight were involved, the reviewing court is not in a position to conclude the outcome could not have been different and sought to rely on the Full Court’s reasoning in DQM18 at [113]. The Full Court’s reasoning was as follows:

[113]     Where questions of weight are involved, and a representation raised by a person is a matter of real and not marginal or fanciful relevance to the statutory task, this Court on review is unlikely to be able to conclude one way or the other what weight might have been given to that representation in the discharge of the statutory task, had the representation been approached rationally and on the basis of probative material. A reviewing court is unlikely to be able to conclude the outcome could not have been different, which is in substance the exercise the Minister asks the Court to perform.

(Emphasis in original).

71    Such reliance on this reasoning is misguided. First, the Court in DQM18 was dealing with errors of a different kind to the case here. In that case the Court found that there was either no evidentiary support for a finding or specific failures to make findings at all: see [58], [69], [118].

72    Secondly, as Counsel for the appellant expressly conceded at the hearing, DQM18 does not stand for the proposition that an assessment cannot be carried out; it simply says that it may be difficult to carry out.

73    Thirdly, the appellant is not able to rely upon DQM18 to suggest that the Tribunal should have considered paragraph 13.2(4)(f) in “the proper way” by attributing weight to it (in what appears to be an argument by the appellant that prioritises form over substance). It is evident that the majority in DQM18 emphasised, and indeed went onto apply, a substance rather than form approach with respect to the Minister’s reasoning by taking into account the whole of the reasons. At [45], the majority noted: 

… However, the whole of the reasons, read in the context of the representations made and other information available, will need to be taken into account by the reviewing court. 

74    Then, at [118], the majority said: 

However, in this appeal, the assessment of materiality is straightforward, because there are two significant errors: the failure to consider the representation about safety and the failure to consider the representation about indefinite detention. Taken together, we are comfortably satisfied that the appellant was deprived of the realistic possibility of a different outcome on his request for revocation of his visa cancellation. 

(Emphasis added).

75    Fourthly, the reasoning in DQM18 at [113] is directed to whether the ultimate weighting exercise undertaken by the decision-maker as a whole when considering each of the primary considerations precluded the establishment of error because of the expansive and overarching effect those subjective conclusions would have, not to the effect that the appellant seeks to advocate here.

76    In any event, in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41; 96 ALJR 13, the High Court has made it clear that the breadth of power conferred by s 501CA of the Act “may involve matters of judgment, especially when weighing factors for and against revocation”: at [15].

77    Consistent with this approach, in the present case a review of the Tribunal’s reasoning reveals that the known views of the child were taken into account when it considered paragraph 13.2(4)(a), (b) and (d) of the Direction: see [52], [55(a)] of this decision. In that sense, the known views of the child were hardly on the “periphery” of the Tribunal’s mind. Even accepting the appellant’s submission that they were “objectively significant”, it was a matter that, when read in the context of the whole of the reasons, was given proper consideration to by the Tribunal and has not been “lightly disregarded in a materiality assessment”. The reasoning reveals that the Tribunal attributed no weight to any direct evidence of any “known views” of the children of which there was none, rather than evidence of any “known views” from other sources which was expressly considered. The findings referred to above reveal that the Tribunal read, identified, understood and evaluated the representations concerning the effect of the appellant’s deportation on his children, the impact of his deportation on their current and future relationship with their father and of their views.

78    It follows that there can be no substance to the appellant’s argument that it is difficult to say a different result could not have been reached in the present case because there was no separate attribution of weight with respect to paragraph 13.2(4)(f). 

79    While the Court accepts that, by reason of the concession that was made (at J [33]) and not sought to be departed from, despite being questionable, the Tribunal may have adopted too narrow a view of what is required of sub-paragraph (f), it does not accept that this conceded error has had such an effect that it is appropriate for this Court to find that there was no consideration of the evidence, such as it was, which would fall within sub-paragraph (f), and if it had been so considered separately under sub-paragraph (f) that, any weighting exercise would have had the effect of there being a realistic possibility that the Tribunal’s decision could have been different.

80    This is particularly so in circumstances where the Tribunal was required to consider as primary considerations, not only the best interests of minor children in Australia (paragraph 13(2)(b)) but also the “protection of the Australian community from criminal or other serious conduct” (paragraph 13(2)(a)) and “expectations of the Australian community”: paragraph 13(2)(c). The Tribunal found that these considerations weighed very heavily in favour of non-revocation as extracted at [24] and [25] of this decision. There has been no challenge in this appeal to the actual findings giving rise to these conclusions nor any challenge to the weight attributed to them in the conclusions made.

81    In addition, the Tribunal found, at [240], when qualifying its conclusion as to the moderate weight to be attributed to Primary Consideration B that that finding did not “in any way, outweigh the very heavy and determinative weight the Tribunal has attributed to Primary Consideration A [Protection of the Australian Community]” (emphasis added). The Court does not accept the appellant’s contention that had the alleged errors not been made there would have been a weighting increase which could have realistically affected the result.

82    This is particularly so given the Tribunal chose to afford greater weight to the impact of the appellant’s removal on his children when considering paragraph 14.2(1)(b) of the Direction. The Tribunal was required to consider “Other Considerations” including “the strength, nature and duration of ties”. The Tribunal found at [267]:

In applying paragraph 14.2(1)(b) of the Direction, the Tribunal has regard to the Applicant’s biological children who would be impacted by the Applicant’s removal, in addition to the emotional impact the Applicant’s removal will have on his family and friends. The Tribunal is of the view that this Other Consideration attracts a heavy weight in favour of the Applicant.

83    This evinces the Tribunal’s cognisance of the “impact” on the appellant’s children and illustrates that the Tribunal had read, recalled and taken it into account the evidence of the children’s views, such that it was part of the factors that attracted “heavy weight” in the appellant’s favour in this aspect of the Tribunal’s reasoning.

84    Accordingly, the Court does not accept that the circumstances are such that, in the light of these findings, that any further consideration of the evidence the Tribunal had already taken into account in sub-paragraph (f) would have had the effect of there being a realistic possibility that the Tribunal’s decision could have been different. It follows that the primary judge did not err and this ground 1 must fail.

G.2    Ground 2

85    The second ground of appeal is as follows:

Ground 2

The learned primary judge erred in failing to find that the Tribunal had fallen into jurisdictional error in failing to properly consider: (a) the Appellant’s representation that the best interests of his eldest child was for a revocation decision to be made (including the essential integers of that representation and the associated evidence); and (b) the factors/considerations in paragraphs 13(2)(b) and 13.2(4)(a), (b), (d) and (f) of Direction 79. The primary judge ought to have found that (sic) that the Tribunal fell into error in the aforementioned ways and that such errors were material errors.

86    At the Full Court hearing, the appellant articulated this ground as being a failure to “properly consider the impact of non-revocation on the appellant’s eldest child”, which the Tribunal was required to consider under paragraph 13.2(4)(d) of Direction 79 (emphasis added).

G.2.1     Disposition of Ground 2

Ground 2(a) the appellant’s representation that his eldest son would suffer a significant detrimental impact if the appellant’s visa was not restored

87    It is apparent that the appellant has, at each stage of the judicial review process, recast and refocussed his representations regarding the impact of cancellation on the appellant’s eldest son.

88    The appellant now submits that the Tribunal failed to properly consider the following representation:

there would be a significant detrimental impact on the eldest child by reason of the fact that: (a) the child was already sustaining significant detriment/harm by his father not being physically in his life; (b) the child would suffer significant detriment/harm in the future if he remained physically apart from his father; and (c) if the Appellant was removed there was no possibility of a meaningful relationship ensuing between the child and the Appellant (Representation).

(original emphasis)

89    The representation, as previously contended before the primary judge, was summarised by the primary judge at J [36]:

The applicant identified five matters, each of which he submitted gave rise to jurisdictional error. First, the applicant led extensive evidence showing he and his eldest child had maintained a strong and significant relationship through the exchange of letters while the applicant had been incarcerated. This was said to be an important feature of the applicant’s case that the Tribunal did not mention, which strongly invites an inference that it was overlooked. Second, the applicant led extensive evidence (and made extensive submissions) about the significant positive role he would play in the child’s life in the future; such evidence which reasonably enabled the Tribunal to make findings about the likelihood of this occurring, which it did not do (or properly do). Third, the applicant made extensive submissions and led extensive supporting evidence connected with the significant impact that the child would sustain if a non-revocation decision was made. Fourth, despite the significant case led by the applicant concerning the child’s best interests, the Tribunal failed to disclose any appreciation of what his best interests called for. For example, the Tribunal made no attempt to grapple with the health impacts on the child that would result from non-revocation (despite clear and concerning evidence) and the fact that a non-revocation would almost inevitably result in no meaningful relationship subsisting or the flow on effects of that (for example, health, happiness development and social and educational needs). Fifth, as a result of the misconstruction of sub-paragraph 13.2(4)(f) of Direction 79 the Tribunal did not give proper consideration to the views of the eldest child.

90    As noted above, it is critical that this Court consider not these recent reformulations but the representation as made to the Tribunal.

91    As extracted at [34] of these reasons above, the appellant’s written submissions before the Tribunal describe in general terms how the revocation would be in the best interests of the children but do not make any submission in the form as submitted by the appellant on appeal. To the extent that there was a “representation”, it comprised: (a) the evidence of the eldest child’s mother; and (b) oral closing submissions. The relevant evidence of the eldest child’s mother is extracted as follows:

6.     [Eldest son] is a super sensitive kid. I’ve had to take him to the doctors recently for a referral to a psychiatrist because he has been having some problems, including suicidal thoughts which seem to be connected with his desire to have a relationship with his father. I know that [eldest son] wants nothing more than to have a good relationship with his father. I want that too. I think that it will severely damage [eldest son’s] mental health if [the appellant] is removed from Australia and not allowed to return because that would mean that [eldest son] could never have the possibility of a close relationship with his father.

7.    I am now married and have two younger children. I will never again set foot in New Zealand, even to visit. All I have there are the worst memories of life around the death of my oldest son. I wouldn’t be able to take [eldest son] to New Zealand to see [the appellant] if he is permanently excluded from Australia.

…

10.     I understand that [the appellant] has committed some crimes in Australia, but I hope for our son’s sake that he can be given an opportunity to remain in Australia so that he can improve our son’s life. I know that it would be [Child 1’s] preference for [the appellant] to be allowed to remain in Australia so that he at the very least has the possibility of a close relationship with [the appellant]. I don’t want that possibility taken away from my son.

92    At hearing before the Tribunal, the eldest child’s mother gave evidence which included relevantly:

Has [Child 1] spoken to you about wanting a relationship with his father or what has [Child 1] said about wanting [the appellant] involved in his life moving forward?---[Child 1] desperately wants a relationship with his father.

93    And later, under cross-examination:

And so how do you think [Child 1] would be impacted if [the appellant] had returned to New Zealand?---I think he would be greatly impacted. We’ve actually had him at the doctor’s for mental health because it’s affecting him that much not having a relationship with his dad and you know, not being able to see him.

He just desperately wants to have a relationship with him. And like I said, if [the appellant] was to go back to New Zealand, I would not be taking [Child 1] back there to see him. Obviously, [Child 1], when he’s much older, can make that decision, but that’s a long way away.

Okay. And so if I understand that correctly, the reason that you’ve taken [Child 1] to the doctor’s is because of his core mental health resulting from the lack of a relationship with his father, is that right?---Yes. And other things to do with school bullies, but that - him not having a, yes, not being able to have a relationship with his dad has had a huge impact on it.

94    In closing submission, the appellant’s representative stated:

Particularly, [Child 1’s mother] expressed, and I’m paraphrasing that, her son [Child 1] would be extremely adversely affected if he was deprived of the opportunity to have any personal relationship with his father. And she also cited the difficulties that [Child 1] has been having psychologically through to the present day (indistinct) with his biological father. And in those circumstances, my submission would be that a non-revocation decision would have a significant adverse affect on all three of the applicant’s minor children, and specifically, his oldest child, [Child 1], having regard to the evidence of [Child 1’s mother] and the problems he’s had to date.

My submission is that he would be particularly adversely affected over the next six to seven years before he turns 18. And my submission is that he’s already having psychological difficulties prior to reaching his teenage years, and on the proviso that I’m not an expert in these matters, but my assumption, drawing on experience and judicial knowledge, if I can call it that, would be that I wouldn’t expect those issues to get any better as [Child 1] progresses through adolescence and into young adulthood. As I say, I don’t express that as an expert opinion, just as an observation which I think is open to the tribunal to draw on its own knowledge.

95    It is clear from a fair reading of the Tribunal’s reasons overall that it understood and considered each of the elements of the representations, even as now crafted by the appellant.

96    The representation, as reframed on appeal, emphasised the “significant detriment/harm” which would be suffered by Child 1. The appellant contends that the representation was “not properly considered”, given the reasoning was “devoid of content” and the Tribunal “failed to make findings” with respect to the current impact on the child of being apart from his father (including the subsistence of mental health issues, including suicidal thoughts); that a non-revocation decision would likely cause “severe” damage to the child; and that the appellant’s removal from Australia would mean that the child could “never have the possibility of a close relationship” with the appellant (emphasis in original).

97    There is overlap between the reformulated representation on appeal and the framing before the primary judge.

98    The primary judge, when dealing with the third matter (as identified in the representation extracted at [89] of this decision) regarding the “impact on the child”, including his mental health issues (including suicidal thoughts), the severity of any damage on him and the absence of the possibility of him “never hav[ing] the possibility of a close relationship” with the appellant, referred, at J [62] of her Honour’s reasons, to the Tribunal’s conclusions at [218]–[219] of its decision; together with, at J [63], the Tribunal’s conclusions at [222]–[225].

99    The primary judge then, at J [64] of her Honour’s reasons, referred specifically to [238] of the Tribunal’s decision, and the lack of independent or expert evidence, namely:

(iv)     the absence of any independent or expert evidence about the adverse impact upon the Applicant’s biological children as a result of the Applicant’s current or possible future absence from their lives;

100    The primary judge correctly summarised the submissions and evidence as they were before the Tribunal at J [66] of her Honour’s reasons:

As the respondent submitted, the impact on the eldest child was not a matter addressed in the applicant’s representations to the Minister. The applicant’s statement of facts, issues and contentions in the Tribunal did not contend his removal would have any impact on his eldest child. The only evidence bearing upon this issue was from Ms AG (the eldest child’s mother), who gave a statement that she had taken her son to the doctor’s recently for a referral to a psychologist because he had been having some problems, including suicidal thoughts which seem to be connected with his desire to have a good relationship with his father, and that his mental health would be “severely damaged” if the applicant were removed from Australia. In cross-examination, Ms AG gave evidence that the doctor’s visit for her son’s mental health also related to school bullies. The topic was referred to by the applicant’s representative in oral closing submissions before the Tribunal. In advancing the submission the applicant’s representative put the ongoing impact or impact of possible future absence on the applicant’s eldest child’s life on the basis that he, (the representative), was not an expert in these matters, but was drawing on assumption, experience, and judicial knowledge.

101    This court is not persuaded that the Tribunal, when its reasons are read as a whole, failed to consider or “grapple with” the “representations” made by the appellant regarding the impact on his eldest son. It is clear that the Tribunal, contrary to the submission of the appellant, recognised the importance of the representations regarding the impact on the appellant’s eldest child. The Tribunal did address, as set out earlier in these reasons, and repeatedly referred to the evidence of the reconnection between the appellant and his eldest son (at [199)], the child’s desire for a relationship (at [200]), the existence of a relationship (at [201]), the finding that if the appellant were to remain in Australia, the appellant would play a positive role in Child 1’s life, again repeating the evidence of Child 1 (at [209], [213]), wishing to resume a relationship with his father (at [209]), the child’s desire for a relationship with his father in the context of the likely impact of any separation would have on the child (at [218]), together with consideration of the evidence of Child 1’s mother, stating that she would not be in a position to take the child to see his father if he were deported (at [219]) and the means by which communication could continue (at [224]). All of these matters concerned and/or had bearing on the “impact” of any deportation of the appellant on the eldest child.

102    The primary judge found, at J [70] of her Honour’s reasons, that she was not satisfied that the Tribunal was not aware of, and did not consider the submission as to the impact on the appellant’s eldest son, stating:

In this context, I am not satisfied that it has been established that the Tribunal was not aware of, and did not consider the submission as to the impact on the applicant’s son. The Tribunal’s reference to the absence of an expert or independent person gives rise to the inference that the Tribunal was cognisant of the lay evidence from Ms AG, but that was the extent of the evidence. This comment was in the context where, as explained above, the applicant’s representative put the applicant’s submission on the basis he was not an expert, highlighting the absence of such evidence. The absence of such supporting evidence where it might be expected, may affect the weight to be attached to the underlying evidence, which is a matter for the Tribunal. In any event, even if the inference sought by the applicant were to be drawn, in the circumstances, the applicant could not establish materiality (applying the principles referred to below).

103    This Court concurs with the primary judge’s reasons. It appears that on each occasion that representations have been made to the Minister, the Tribunal, the primary judge and now this Court, there has been a change in the emphasis placed on certain facts or matters. A consideration, out of context, of the evidence and submissions about the impact on the eldest child could artificially lend to a result which suggests the absence of proper consideration.

104    Relevantly, the height of the appellant’s representative’s submission before the Tribunal regarding the impact on the eldest child (to the extent that there was a reference to the child’s health) was to submit that the eldest child’s mother had expressed a view as to the child’s mental state and her view about the psychological difficulties he had:

[Child 1’s mother] expressed and I’m paraphrasing that, her son [Child 1] would be extremely adversely affected if he was deprived of the opportunity to have any personal relationship with his father. And she also cited the difficulties that [Child 1] has been having psychologically through to the present day (indistinct) with his biological father.

(Emphasis added).

105    And went on, to submit in effect given:

he’s already having psychological difficulties prior to reaching his teenage years, and on the proviso that I’m not an expert in these matters, but my assumption, … I wouldn’t expect those issues to get any better as [Child 1] progresses through adolescence … As I say, I don’t express that as an expert opinion, just as an observation. …

106    It cannot be disputed that there was only limited evidence, in hearsay form, from the eldest child’s mother as to the effect on the eldest child’s mental health, as extracted in these reasons at [91] to [93] of this decision (acknowledging that the rules of evidence did not apply before the Tribunal). There was no medical evidence. The appellant’s representative before the Tribunal explicitly and rightly conceded, as extracted above, that there was no expert evidence. The primary representation, as framed, concerned the potential deprivation of an opportunity for a relationship. The Court accepts the appellant’s submission that the weight given to such evidence depends on its nature. In this context, it is not surprising that there was no separate and compartmentalised mention of the child’s mother’s reference to her perceptions of her child’s psychological health. It formed part of the same sentence in her evidence and indeed submission as to her son’s desire for a relationship with his father (which was accepted by the Tribunal and repeatedly referred to). It is not possible to draw any inference that the evidence was not considered, given the way the case was run before the Tribunal and the structure of the primary judge’s reasoning: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; 236 FCR 593 at [46]-[47].

107    The appellant is not able to deploy the Court’s reasoning in Dunasemant v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 13 in this regard. In Dunasemant, the Tribunal completely overlooked the hardship that would have been suffered by the appellant’s mother: at [29]. In the present case, the alleged failure involves a particular detail within the claim. The appellant contended that there is no distinction between a representation that has been overlooked or an “integer” (or “critical evidence”) of that representation which has been overlooked because in both instances, an important part of the case has not been dealt with. This contention is misguided in the present context.

108    The Tribunal has no obligation to refer to in its reasons to “every piece of evidence” (Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; 252 FCR 352 at [45]) nor “to make a finding of fact with respect to every claim or issue raised”: Minister for Home Affairs v Buadromo [2018] FCAFC 151; 267 FCR 320 at [46]. As stated by the High Court in Viane, albeit in relation to a decision made by the Minister in person such that s 499 and thus the direction made under that section did not apply:

14     No part of the statutory power conferred by s 501CA of the Act obliges the Minister to make actual findings of fact as an adjudication of all material claims made by an applicant. Based upon the representations made by an applicant, the cancellation decision and the “relevant information” given to the applicant pursuant to s 501CA(3)(a), the Minister must, when the Minister is not satisfied that an applicant passes the character test, then determine relevantly whether to be satisfied that there is “another reason” why the cancellation decision should be revoked. Deciding whether or not to be satisfied that “another reason” exists might be the product of necessary fact finding, or the product of making predictions about the future, or it might be about assessments or characterisation of an applicant's past offending.

15     If the representations made lack any substance altogether, then this of itself might justify a decision not to be satisfied that “another reason” exists to revoke the cancellation decision, without any need to make any findings of fact about the various claims made. Moreover, some of the topics that might be traversed might not lend themselves to be addressed by way of evidence. They may involve matters of judgment, especially when weighing factors for and against revocation. The breadth of the power conferred by s 501CA of the Act renders it impossible, nor is it desirable, to formulate absolute rules about how the Minister might or might not be satisfied about a reason for revocation.

(Footnotes omitted).

109    There is a significant difference between the absence of “any consideration” and the absence of a particular detail or “integer” of the evidence that otherwise is considered (emphasis added).

110    In the case of the former, where there is a failure to consider at all a representation that is clearly articulated and supported by material that was before the Tribunal, like in Dunasemant, it is correct to say that the failure to consider the representation realistically could have resulted in the Tribunal reaching a different conclusion: see also DQM18 at [113]. But where, in the case of the latter, the Tribunal failed to refer to particular details of evidence, then contrary to the appellant’s submission, the conclusion that the Tribunal could have reached a different conclusion does not necessarily follow. Indeed, as noted in Singh v Minister for Home Affairs [2019] FCAFC 3; 267 FCR 200 at [37], the failure to mention “a particular piece of evidence should be analysed by reference to the whole of the material before the Tribunal and its prominence assessed by reference to all of the issues and the way in which the matter was conducted in the Tribunal”.

111    Further, the Court shares the view of the primary judge (at J [70]) that the Tribunal’s reference to the absence of an expert or independent person (at [238(iv)]) regarding the “adverse impact upon the Applicant’s biological children as a result of the Applicant’s current or possible future absence from their lives” gives rise to an inference that the Tribunal was cognisant of the lay evidence of the eldest son’s mother, and brought its mind to bear upon those facts. This is particularly so given the content of the closing submission made to the Tribunal, as extracted at [104] and [105] of this decision, and the reference made by the Tribunal at [222], to the fact that aside from the submissions of the appellant and the children’s respective mothers, “there [was] no evidence of the views of the relevant children expressing or delineating any adverse effect upon them”.

112    Here, in any event, it is clear that the Tribunal accepted overall the evidence and submissions made by the mother of the eldest child, which contributed to a finding to assign moderate weight to Primary Consideration B. Accordingly, the Tribunal was not required to refer explicitly to every portion of the evidence as to the mother’s views in relation to the impact upon her child.

113     Even if we are wrong regarding this alleged error, such an error has not been demonstrated to be material. The appellant submits it was material on the assumption that there was no proper consideration of the issue, which we do not accept. Further, the submission is premised speculatively on whether greater than “moderate weight” could have been afforded to it. For the reasons expressed above, the Court does not accept that there was such a realistic possibility of this occurring.

G.2.2 Possibility of a close relationship

114    Similarly, to the extent that the appellant submits that the Tribunal failed to consider the evidence and submissions to the effect that the appellant’s removal from Australia meant that the eldest child could never have the possibility of a close relationship with him, we are not persuaded that the Tribunal, when its reasons are read as a whole, failed to consider this issue. The Tribunal referred, in the context of considering the likely impact of any separation, the eldest child’s mother’s evidence of her son wanting to have a relationship with his father (at [218]), had regard to the submissions of the mother as to why she would not be in a position to travel with the child to visit his father (at [219]), referred to the evidence of the extent of communication between the child and his father presently (at [219]), how contact can be maintained in the future by telecommunication and electronic means (at [224]) and in effect noting the effect of the separation, found at [225], that the effect of separation would have moderate weight in favour of a finding that it is in the best interests of the relevant minor children if the appellant were allowed to remain. The difficulty for the appellant is that the Tribunal did accept the thrust of the appellant’s representation in this regard, and while it did not give it the weight that the appellant seeks, the appellant cannot maintain that the Tribunal failed to engage with the representation.

G.2.3 Positive role

115    The appellant claims that there was a failure on the part of the Tribunal to “properly consider” the extent that the appellant would play a positive role in his eldest child’s life (paragraph 13.2(4)(b) of the Direction). A fair reading of the Tribunal’s reasoning reveals that there was adequate consideration of this issue. The Tribunal did specifically address this issue at [207]–[213] of its reasons. The appellant undertakes an artificial, limiting analysis of the reasoning, by referring only to [208]–[209] of the reasoning and concluding, by reference to only those paragraphs, that the Tribunal’s reasoning was “bare in nature and says little – if anything – about the extent to which the Appellant could be expected to play a positive role in the child’s life” (emphasis in original). Any evidence relied upon by an applicant regarding the best interests of the child may necessarily be relevant to more than one of the paragraph 13.4(2) factors. Accordingly, it is open to take into account other aspects of the Tribunal’s reasons when dealing with other paragraph 13.4(2) factors, and when considering whether this issue formed part of the Tribunal’s evaluation of the representations. The primary judge addressed this matter at J [54]–[60] of her Honour’s reasons. Her Honour observes the tempered nature of the evidence regarding the degree to which the future relationship would be a positive one at J [58]:

I note there was plainly evidence on the topic, although one might query whether the evidence and submissions are properly described as “extensive” as repeatedly asserted in this and other aspects of the applicant’s submissions. I note also that although there was evidence, it was tempered. For example, Ms AG said that even if the applicant were to remain in Australia it would take a long time for him and his eldest child to develop a close relationship, as she did not want him to start such a relationship only for it to be taken away again (which is clearly a reference to being let down by the applicant). The applicant’s submission proceeds on a basis that what the applicant intends or desires as to his role, will necessarily eventuate. In that regard, the applicant’s submissions are made in a vacuum from other findings, which included inter alia, the incomplete nature of his rehabilitation with respect to factors leading to his risk of recidivism (and the findings underpinning that as to his offending and failure to undertake rehabilitation, including inter alia, addressing his drug addiction and domestic violence). This simply illustrates that the submission that further findings were required must be considered in its proper context.

116    Her Honour then goes on, to correctly identify the various parts of the Tribunal’s reasoning which address this issue, at J [59]:

… properly read and in context, the Tribunal concludes that it is reasonable to expect the applicant would play a role in the parenting of his eldest child in the context where he has reconnected with his eldest child and his eldest child wishes to resume the relationship. The Tribunal had earlier referred at [201] to the fact that for the first four to five years of his eldest child’s life he was a regular presence but, as observed at [208], the applicant had been absent from his eldest child’s life for the past four to five years, apart from a handful of catch ups. The Tribunal recites that the evidence from the applicant was he had seen his eldest child on three occasions. The Tribunal notes the applicant’s evidence that this occurred because of his drug dependency. It follows that a numbers of the topics which the applicant contended ought to have been considered, were topics the Tribunal had addressed.

117    Furthermore, the Tribunal concluded that the appellant was likely to play a positive role in his eldest child’s life if he were to remain in Australia (at [209]) taking into account “the statements from the Applicant and [Child 1’s mother], that Child 1 wishes to resume a relationship with their father”. The Tribunal thereafter reiterates the same, at [228], where it states:

The Tribunal has already found that it is reasonable to expect the Applicant to play a role in the parenting of Child 1 into the future until they obtain the age of 18 years, should he be allowed to remain in Australia.

118    The primary judge was correct to conclude at J [60] that the Tribunal was not required “to make more findings, or more specific findings” in the circumstances. The Court does not accept that the Tribunal failed to make findings about “what was likely to occur in the future” or did not “resolve material questions of fact”. It is clear from the Tribunal’s reasons, at [209] and [228], that it did make findings in the appellant’s favour as to what was likely to occur.

G.2.3 Alleged failure to consider the evidence about the exchange of letters between the appellant and his son

119    The appellant contends that his case before the Tribunal was that he “maintained a strong and significant relationship with his son while in detention through the exchange of letters”, separately from by text and phone, and that the Tribunal omitted to refer to this evidence of the letter exchange, as opposed to its reference to communication through other means at [199] of its reasons.

120    Again, the appellant has not accurately described the nature of his case as it was before the Tribunal and this is another instance of a recasting or refining of his case upon review and on appeal in a manner which is different from that before the Tribunal. First, the appellant made no mention in his written submission before the Tribunal about the significance of any of the forms of communications that were taking place between the appellant and his eldest child, let alone contending, as he does now, that there is a material difference between phone and text communications and letter writing. Secondly, to the extent that there was evidence before the Tribunal, it comprised one sentence in the appellant’s statement “[Child 1] and I have been exchanging letters since I have been in jail” and five references in his oral testimony comprising – “I write letters to him and that since I’ve been in gaol”, “Every time I get a letter back, I write to him”, “I write to him all the time”, “He writes me [sic] every month, I write back to him every month, since I’ve been locked up” and “He writes to me every month, a couple times a month, saying what he wants to do with me when he(sic) gets out”. Thirdly, there was no tender of any of the letters, text messages or evidence of the content of any of those communications and how they differed. Fourthly, there was no reference at all in the appellant’s representative’s closing submission to the Tribunal about there being communication between the appellant and his eldest son or the significance of letter writing. Rather, in closing, there was apparent acceptance by the appellant’s representative that the appellant’s contact with his sons had been limited and he regretted the decisions he had made in relation to those relationships, as is evidenced from the following extracts of the submissions.

… I think the applicant’s evidence about the role he wanted to play in his son’s lives, and specifically the truthfulness with which the applicant gave evidence about his lack of relationship, or significant relationship, with his sons over the past few years was particularly indicative of this.

I don’t blame applicant’s [sic] who come before the Tribunal and embellish or overemphasise or overstate their relationship with their children when it comes into this forum, but of the applicant’s evidence, in fact, didn’t seem to embellish or overstate, you know, put higher than it was, his relationship with his children in the years before he was incarcerated. I think that’s one reason why I (indistinct) the Tribunal to form a positive view of the applicant’s credibility because of his (indistinct) to having the Tribunal describe (indistinct) relationship with his sons over the past few years.

(Indistinct) his contact with his sons had been limited, but at the same time, the applicant’s demeanour and the way in which he gave evidence, to my mind clearly showed that he regretted the decisions he’d made in relation to relationship he’d had with sons over the past few years, and also genuinely wanted to be a positive role model in his sons’ lives moving forward. I think the Tribunal would be on safe grounds, having had the opportunity to see the applicant’s determination (indistinct) in the applicant’s genuineness about those things. As I say, especially in circumstances where, you know, he gave honest and truthful evidence about the state of the relationship before his incarceration, during the period of the drug use.

121    Accordingly, the primary judge was correct to conclude at J [50] that “There is no basis in the evidence to differentiate between the forms of communication as to what was more or less significant”. Given this, this Court is of the view, consistent with the conclusion of the primary judge, that the Tribunal considered the representation made (regarding the fact of communication). Although the Tribunal did not refer to all the evidence of all the forms of communication relied upon in support, this is not surprising given the absence of any evidence as to the nature and content of each form of communication (including particularly with respect to the letters). Further, this lacuna in the evidence suggests that any further reference to or consideration of the letters could not lead to a different finding of fact in relation to the representation. This Court does not accept the submission of the appellant that the mere fact of evidence of an exchange “went beyond just establishing a mere reconnection and went to the nature and extent of that reconnection” (emphasis in original). In any event, the Tribunal found, beyond the existence of reconnection, not only that the eldest child “desperately wanted a relationship with his father” but he did in fact have a relationship with his father: at [200]–[201].

122    Given our conclusion that the purported errors referred to above were not in fact errors, there is no necessity to undertake a materiality analysis by reference to the combined effect of those errors.

Conclusion

123    For these reasons, we dismiss the appeal, with costs.

Associate:

Dated:    22 June 2022