Federal Court of Australia

Knight v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 127

ORDERS

THE COURT ORDERS THAT:

1.    The originating application for review of a migration decision dated 12 January 2022 be dismissed.

2.    The applicant pay the first respondent’s costs.

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

REASONS FOR JUDGMENT

THE COURT:

Introduction

1    The applicant is a New Zealand citizen. She was the holder of a Class TY Subclass 444 Special Category (Temporary) visa. The visa was cancelled, mandatorily, on 8 December 2020 under s 501(3A) of the Migration Act 1958 (Cth) (the Act).

2    The applicant sought revocation of the cancellation decision under s 501CA(4) of the Act but, on 15 September 2021, a delegate of the first respondent, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Minister), decided not to revoke the original decision.

3    The applicant then applied to the second respondent, the Administrative Appeals Tribunal (the Tribunal), to review the delegate’s decision. On 8 December 2021, the Tribunal affirmed the decision under review.

4    The applicant now applies to this Court to review, judicially, the Tribunal’s decision. The essential ground on which the applicant relies is that the Tribunal failed to consider, in the relevant legal sense, a substantial or significant, and clearly articulated, claim made in her representations to the delegate pursuant to s 501CA(3) of the Act as to why there was “another reason” why the original (cancellation) decision should be revoked: see s 501CA(4)(b).

5    According to the applicant, that claim was that, if removed to New Zealand, she would experience trauma based on the sexual abuse she suffered as a teenager when committed to the Weymouth Girls Home in Auckland. The applicant contends that, as a consequence of its failure in this regard, the Tribunal’s decision is affected by jurisdictional error and that a writ of certiorari should issue to quash the decision.

Background

6    The applicant arrived in Australia in 1989, when she was 16 years of age. She has an extensive criminal history. Her offending commenced in 1991, when she was 18 years of age. The details of this offending are not relevant for present purposes save to note that, on 19 December 2019, the applicant was convicted at the Downing Centre Local Court in New South Wales of recklessly wounding, for which she was sentenced to a period of imprisonment. Her original sentence was 20 months’ imprisonment, with a non-parole period of 15 months. On appeal, her sentence was reduced to 12 months’ imprisonment, with a non-parole period of eight months.

7    Section 501(3A) of the Act provides, relevantly:

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

(ii)     …; 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.

8    Such a decision (referred to as an “original decision”) may be revoked following the making of submissions by the person concerned “about revocation of the original decision”, pursuant to an invitation to make such submissions: s 501CA(3)(b) of the Act.

9    Section 501CA(4) provides:

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.

10    Before the Tribunal, it was not in dispute that the applicant did not pass the character test. The only question for the Tribunal was whether there was “another reason” why the original decision should be revoked. The Tribunal was not persuaded that there was such a reason.

Aspects of The Tribunal’s Decision Record

11    After making certain prefatory observations, the Tribunal noted in its Decision Record (DR) that its exercise of power under s 501CA(4) was guided by directions made under s 499 of the Act. Here, the relevant direction was Direction No. 90 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA, given on 8 March 2021 (Direction 90 or the Direction). The Tribunal quoted the principles set out in para 5.2 of Direction 90 which provides the framework within which decision-makers should approach their statutory task, and then turned to Pt 2 of the Direction which sets out the primary and other considerations that must be considered by decision-makers, where relevant, when deciding whether to exercise the discretion to revoke the mandatory cancellation of a non-citizen’s visa.

12    After noting the sources of evidence before it, details of the applicant’s criminal history, and the issue raised for its determination (namely, whether there was “another reason” why the original decision should be revoked), the Tribunal then turned to consider the application for review by reference to these considerations.

13    In the context of considering the risk to the Australian community should the applicant re-offend or engage in other serious conduct, the Tribunal noted certain documents which either referred to, or alluded to, the applicant’s sexual abuse as a teenager: a letter of support from a counsellor at the Kirketon Road Centre (DR [44]); a sentencing assessment report dated 19 November 2019 (DR [45]); and the applicant’s Personal Circumstances Form dated 15 December 2019, which accompanied her application for revocation of the original decision (DR [52]). We will return to consider some of these, and other, documents in more detail.

14    In the context of considering the expectations of the Australian community, the Tribunal noted the applicant’s unhappy childhood: DR [82]. At DR [83], the Tribunal said:

83.    The applicant acknowledges that during her childhood she would break out from the boarding house and that she experienced bad influences which ultimately led to her placement in a juvenile corrections centre. She states that whilst in the correction centre she was sexually assaulted by a staff member, who may have been protected by other staff members. She states that a claim has been made following a Royal Commission of Inquiry into Abuse in Care. Such claim has been verified by correspondence produced to the Tribunal.

15    As required by Direction 90, the Tribunal also considered the extent of impediments to the applicant if removed from Australia (at DR [93] – [97]):

93.    Paragraph 9.2(1) of the Direction provides that decision-makers must consider the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:

(a)    the non-citizen’s age and health;

(b)    whether there are substantial language or cultural barriers; and

(c)    any social, medical and/or economic support available to them in that country.

94.    The Applicant has resided in Australia since 1989. The Tribunal must consider the extent of impediments if the applicant were removed from Australia. The applicant is 48 years of age and has resided in Australia for 22 years. As referred to below, the applicant may face a period of readjustment but there are no substantial language or cultural barrier, and the social, medical and/or economic support available to the applicant will be similar to that in Australia.

95.    The applicant’s mother and her family reside in New Zealand. However the relationship is estranged. The applicant was placed in governmental care in New Zealand when she was approximately 13 years of age. The applicant’s father stated that the applicant’s mother has two brothers who have families in New Zealand and that he is close to the two brothers and their wives. The applicant’s father stated that he visits New Zealand 2 to 3 times per year to see them; however the applicant has not met these relations.

96.    There would be a period of readjustment for the applicant if she were returned to New Zealand. However, the applicant has shown that she can make a living and claims to want to start a new life with a “proper job”. There should be no impediment to the applicant re-establishing herself in New Zealand where the customs and language are virtually identical to that in Australia. Health and welfare services should be available to the applicant, as they are in Australia.

97.    On balance, this consideration weighs slightly in favour of revocation.

16    At DR [122], the Tribunal concluded:

122. The Tribunal is to determine whether there is “another reason” which might justify the Minister revoking the original decision. In weighing the competing considerations and the weight to be given to all relevant considerations, the Tribunal finds that there is no other reason why the original decision should be revoked, as referred to in s 501CA(4) of the Act. It follows that the decision under review should be affirmed.

The parties’ submissions

17    In a nutshell, the applicant’s case is that, before the Tribunal, she advanced the claim that, if she were to be removed to New Zealand, she would suffer future trauma based on her previous sexual abuse at the Weymouth Girls Home. She submits that this claim was advanced: in her Application for Review of Decision filed in the Tribunal (the review application); in an answer given to a question raised in her request for revocation of the original decision; in a statement made in a handwritten document she provided in support of her revocation request; through the letter of support from the Kirketon Road Centre she tendered; and in the course of closing submissions made to the Tribunal.

18    The applicant submits that this claim was advanced as “another reason” why the cancellation of the visa should be revoked. The applicant submits that this was a substantial or significant, and clearly articulated, claim which was not considered, or was overlooked, by the Tribunal.

19    The applicant submits, further, that this failure or omission was material because the substance of her claim was such that, had it been properly considered, it could have led the Tribunal to come to a different view on the question of revocation.

20    The Minister accepts that the applicant raised an issue before the Tribunal as to whether the trauma she had suffered in the past would be an impediment to her removal to New Zealand. However, the Minister submits that the applicant did not make any clearly articulated claim that, if so removed, she would suffer trauma in the future by reason of the sexual abuse she had suffered in the past. As the Minister put the matter in written submissions:

The Minister does not suggest that the Applicant did not raise as an issue before the Tribunal the harm she had suffered as a victim of child sexual abuse. It is only to say the way in which the issue was raised must be carefully identified in order to consider whether or not the Tribunal performed its statutory function.

21    In this proceeding, both parties place reliance on documents that were before the Tribunal. They also place reliance on the way in which the review application was advanced at the hearing before the Tribunal, particularly in closing submissions. We now turn to consider these matters.

The documents before the Tribunal

22    The documents before the Tribunal included the applicant’s request for revocation of the original decision. The applicant’s accompanying Personal Circumstances Form gave the following answer to the question Are there any other problems you would face if you have to return to your country of citizenship? If so, describe these:

I was given custody to my sister in Australia in 1998 as I was sexually assaulted by 3 members of the Weymouth Girls Home is New Zealand coming to Australia meant they were not punished or charged for what they did to me going back would reopen these things that I have blocked out for all my life.

(As in original.)

23    In an accompanying handwritten statement dated 15 December 2020, the applicant referred, again, to her sexual assault by three staff members and said that, so that these staff members would not be held accountable:

social welfare N.Z. flew me to australia to custody of my sister … who was 3 yrs older than me so sending me back to N.Z will reopen a lot of terrible things that I have tried to forget …

(As in original.)

24    Another document on which the applicant relies is her Application for Review of Decision filed in the Tribunal (the review application). In the review application, the applicant responded to the question Why do you claim the decision is wrong? as follows:

I need to stay in Australia I am in danger if I go back I have a royal commission hearing in nz soon for the trauma I went through in nz.

25    The applicant submits that this answer should be read as stating that, if she is removed to New Zealand, her removal will “revive the trauma” she previously experienced. We do not agree. When the review application is taken in isolation, the purport of the answer is unclear.

26    However, in our view, the answer must be considered in the context of an email sent to the Department of Home Affairs (the Department) on 20 August 2021 in relation to the delegate’s consideration of whether the cancellation decision should be revoked. In that email, the applicant stated that she had been raped by staff members of Weymouth Girls Home and that there was “now a royal commission into charging these men”. The email continued:

I’m part of the inquest I feel safe in Australia but if you send me back to New Zealand these men could find me and kill me so I cant testify.

27    Taken with the email, the answer in the review application appears to be a claim of danger in the form of apprehended physical violence against the applicant, should she be removed to New Zealand, by those whose conduct was, or was to be, the subject of the New Zealand Royal Commission of Inquiry into Abuse in Care (the Royal Commission).

28    For the purposes of the Tribunal hearing, the applicant filed a Statement of Facts, Issues and Contentions dated 3 November 2021. This document was prepared by the applicant’s then solicitor. Undoubtedly, it was an essential part of the framework of the case which the applicant was then seeking to advance for the Tribunal’s consideration. It specifically addressed the extent of the impediments the applicant would suffer if removed to New Zealand:

23.     Ms Knight would have the usual impediments in settling into a new country, which would include the need to find a job and emotional and psychological stressors in moving to a new country.

24.     However, in this case, the Tribunal should have regard to Ms Knight[’]s childhood history and the traumatic experiences of living in that country before moving to Australia as extra factors that would make it more difficult for her to set up a new life, should [s]he be removed to New Zealand.

25.     We submit that this consideration weighs in favour of the visa cancellation being revoked.

29    We observe that, while referring to the applicant’s childhood history and traumatic experiences, the applicant’s Statement of Facts, Issues and Contentions did not elaborate on why this history, or her past traumatic experiences, would make it more difficult for her to set up life in New Zealand. The document certainly did not clearly articulate a claim that, if the applicant were to be removed to New Zealand, she would suffer future trauma by reason of her past sexual abuse.

30    In his responsive Statement of Facts, Issues and Contentions dated 15 November 2021, the Minister addressed what he understood to be the applicant’s concern about being removed to New Zealand—namely, her physical safety as a participant in the Royal Commission:

56.     The applicant does not make any explicit non-refoulment claims in the ASFIC. However, the applicant claims to have suffered historical sexual abuse while she was resident at a girl’s home in New Zealand as a child. The applicant has made a claim to the New Zealand Ministry of Social development in this regard (G22/100). The applicant states that “[she] feel[s] safe in Australia but if you send me back to New Zealand these men could find me and kill me so I cant testify”.

    (Emphasis in original.)

31    We observe that the last sentence in this paragraph contains a quotation from the applicant’s email sent to the Department on 20 August 2021. The Minister’s Statement of Facts, Issues and Contentions continued:

57.     It is unclear whether the applicant still relies on this statement, and if so, whether she makes any assertions about the engagement of Australia’s non-refoulement obligations.

58.     For completeness, the Minister submits that the applicant’s claim that the perpetrators of her alleged abuse would seek to harm her to prevent her from testifying appears to be no more than speculation. In any event, there is no evidence to suggest that the New Zealand police would be either unwilling or unable to protect the applicant from the perpetrators.

59.     Accordingly, this consideration should be given neutral weight by the Tribunal.

32    It seems tolerably clear that, by the time that the Minister came to file his Statement of Facts, Issues and Contentions, the Minister was not cognisant of any extant claim by the applicant that, if she were to be removed to New Zealand, she would suffer future trauma by reason of her past sexual abuse.

33    For completeness, we note that the applicant’s Tender Bundle dated 22 November 2021, which was prepared for the Tribunal hearing, included a letter from the Royal Commission, also dated 22 November 2021. The letter noted that: (a) the applicant had registered with the Royal Commission in June 2021; (b) the applicant was supported in her engagement with the Royal Commission by a lawyer; (c) the applicant was interviewed to “develop” a witness statement about the abuse she suffered, which the applicant later signed; and (d) the Royal Commission had referred the applicant’s allegations of abuse to the New Zealand Police.

34    As part of her evidence to the Tribunal, the applicant relied on a statutory declaration she made on 19 November 2021. This declaration can also be taken as framing the case that the applicant was then seeking to advance. It was made after the Minister’s responsive Statement of Facts, Issues and Contentions. It referred to the abuse the applicant suffered in care—specifically, at the hands of a music teacher at Weymouth Girls Home whom, at the time of the abuse, the applicant considered to be her boyfriend. In that part of her declaration, the applicant said:

21.     In July 2021, I contacted the Ministry of Social Development and lodged a claim of sexual abuse while in care. The government had established a Royal Commission of Inquiry looking into the abuse of children while in State care.

22.     In the last week or so I received an email to inform me that that the man who abused me passed in 2019. My claim would still be processed but criminal charges could not proceed.

35    Later in the declaration, the applicant said:

60.     Since the Royal Commission on 4 October 2021, my childhood records were opened, the evidence was there, and I was told that the staff member that abused me was guilty of sexually assaulting me and five other girls. New Zealand Police were instructed to investigate to locate him. I was informed by email that staff member had passed away in 2019. I intend to pursue my claim as I need justice and closure to a very painful part of my life.

36    Nowhere in the declaration did the applicant advance a claim that, if removed to New Zealand, she would experience trauma based on the sexual abuse she suffered as a teenager at Weymouth Girls Home. Indeed, para 60 of the declaration referred to the applicant’s pursuit of her claim of sexual abuse as bringing “closure to a very painful part of my life”.

37    It seems, therefore, that, by the time of the Tribunal hearing on 25 November 2021, the physical danger, which the applicant had sensed at the time of making her application to revoke the original decision, and at the time of filing the review application in the Tribunal, had dissipated. In the Tribunal, she did not advance a claim to fear harm for that reason, or contend that any concern she had, or previously held, in that regard, was “another reason” why the original decision should be revoked.

38    However, the Tender Bundle which the applicant had prepared for the Tribunal hearing included the support letter provided by a counsellor at the Kirketon Road Centre to which the Tribunal referred at DR [44]: [13] above. The letter, which is dated 28 October 2021, stated that the applicant first attended the Centre in March 2007 and that, since that time, she had regularly accessed support from the “medical and counselling units”. Relevantly to the present case, the writer of the letter, Sudhir Dean, said:

Ms Knight has disclosed that when she was a teenager, various staff members of the Weymouth Girls Home in Auckland, where she was resident, took advantage of her sexually. She informed me that the institutional response to the sexual abuse was deported from New Zealand into the care of a relative in Australia, before those staff members could be held to account for their actions. She has told me that for her to return to New Zealand would be to revisit the scene of her sexual abuse and hence would be acutely traumatic. I concur with her insight into all of these matters.

39    He also noted:

Ms Knight is concerned that deportation to New Zealand would undo the good work she has been doing to address the issues of her institutional sexual abuse, the lack of appropriate institutional response, and the profound effect these experiences have had on her adult life.

40    At the present hearing, the applicant relied on this letter as “the most clear statement” of the claim which, she said, she made, and which, on her case, the Tribunal had either overlooked or not considered.

Closing submissions in the Tribunal

41    At the commencement of the hearing, the Tribunal drew attention to the fact that it had before it, and had understood, the parties’ respective Statements of Facts, Issues and Contentions. The Tribunal also stated that it had before it, and had understood, the statements on which the applicant was seeking to rely. These statements included the applicant’s statutory declaration, which the Tribunal described as a “very full and frankly very detailed statement”.

42    Immediately prior to the delivery of closing submissions, the Tribunal again referred to the applicant’s Statement of Facts, Issues and Contentions. The following exchange took place:

DEPUTY PRESIDENT: Ms Mamarot, because the tribunal already has the applicant’s statement of facts, issues and contentions I think you can take it that the tribunal is aware of the facts in the matter so there’s no need to dwell on those.

MS MAMAROT: Yes certainly. In my closing submissions, Deputy President, I don’t plan to rehash my statement of facts, issues and contentions, rather just address some of the criteria in direction 90.

DEPUTY PRESIDENT: Yes.

MS MAMAROT: I won’t go through the facts as mentioned, as you stated. Essentially if I may begin with the primary consideration before the tribunal.

43    It can be seen from this exchange that the case that the applicant was advancing before the Tribunal was the case contained in her Statement of Facts, Issues and Contentions.

44    When addressing one of the primary considerations identified in Direction 90—the expectations of the Australian community— the applicant’s solicitor submitted:

MS MAMAROT: … With respect to the expectations of the Australian community, we essentially submit that the Australian community expectations would prima facie weigh against the applicant, however we do submit that had the Australian community been aware of Ms Knight – the fact that Ms Knight’s been in Australia for the last 33 years, I mean she lived the majority of her adult life here. She’s got a criminal record for many years, however it’s only the last offence that was deemed very serious, otherwise the other offences on the criminal record can be deemed as somewhat less serious. And the fact that she escaped New Zealand where she did face some significant abuse, and that, Deputy President, in our tender bundle on the last page, 42, does show that she has engaged with the Royal Commission through her lawyer into the inquiry into abuse while in care.

DEPUTY PRESIDENT: Yes, I have that, thank you.

MS MAMAROT: When she did leave New Zealand she did escape traumatic dealings and upbringing there, so we submit that even though prima facie that it may seem that the Australian community, the expectations will be against her, we submit that given that they knew the details of her background, and the fact that she has conceded her wrongdoing, she’s sought rehabilitation while in custody, and that she doesn’t really have any immediate family left in New Zealand. We submit that the expectation will be that they would weigh in favour of not revoking - - -

DEPUTY PRESIDENT: In favour of revoking.

MS MAMAROT: Of revoking the cancellation, yes. …

45    When addressing “other considerations”, the applicant’s solicitor submitted:

MS MAMAROT: … With respect to the other considerations, the other consideration not the primary, just with respect to the extent of the impediments, we submit that – if Ms Knight was to be deported she’d face the same difficulties of settling in a country as anyone else who would be deported back to New Zealand. But in saying that, there is significant consideration – we submit that there is because of the traumatic experiences that she had faced in New Zealand with respect to the abuse when she was in the institution when she was in care, and that would make it exceptionally difficult to establish a life back there.

With the strength and nature and duration of ties in Australia, the majority of her life has been in Australia. She’s got nothing left in New Zealand, and even though her family relationships are somewhat fragmented since the family’s not close, but they are here, and her support systems are here, and her biological children are here, and there is her grandson. We submit that she does have considerable ties, all her ties are in Australia.

Overall our submission, Deputy President, is that the visa cancellation should be revoked. Thank you, I’ve got nothing further.

46    We observe that, in advancing these submissions, the applicant’s solicitor did not depart from the framing of the applicant’s case according to her Statement of Facts, Issues and Contentions.

Legal principles

47    In Plaintiff M1 v Minister for Home Affairs [2022] HCA 17; 96 ALJR 497 (Plaintiff M1), the plurality (Kiefel CJ, Keane, Gordon and Steward JJ) emphasised (at [22]) that the statutory scheme for determining whether a decision-maker is satisfied that there is “another reason” for revoking a cancellation decision commences with the former visa holder making representations. The decision-maker—in this case the Tribunal—undertakes that assessment by reference to the case made by the former visa holder by that person’s representations.

48    It is not in doubt that if, for example, the Tribunal fails to make a finding on a substantial and clearly articulated argument relying upon established facts, that failure can—although not necessarily will—amount to a constructive failure to exercise jurisdiction: Plaintiff M1 at [27]; Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 26; 197 ALR 389 (Dranichnikov) at [24] – [25] and [86] – [89]. However, not every statement within representations made by a former visa holder is, necessarily, a mandatory relevant consideration: Plaintiff M1 at [23]; Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41; 395 ALR 403 (Viane) at [13].

49    In Plaintiff M1, the plurality said (at [24]):

24    Consistently with well-established authority in different statutory contexts, there can be no doubt that a decision-maker must 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.

(Footnotes omitted.)

50    The plurality also said (at [25]):

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.)

51    In Dranichnikov, Kirby J observed (at [78]):

78    ... The Tribunal acts in a generally inquisitorial way. This does not mean that a party before it can simply present the facts and leave it to the Tribunal to search out, and find, any available basis which theoretically the Act provides for relief. This Court has rejected that approach to the Tribunal’s duties. The function of the Tribunal, as of the delegate, is to respond to the case that the applicant advances. A fortiori this is the function of the Federal Court in determining any application to it for judicial review of a decision of the Tribunal.

(Footnotes omitted.)

52    The ambit of a review by the Tribunal is necessarily influenced by the ambit of the steps and proceedings that have taken place prior to its review: Re Easton v Repatriation Commission (1987) 6 AAR 558 at 561. This is an aspect of the notion that the administrative decision-making process is a continuum: see Frugtniet v Australian Securities and Investments Commission [2019] HCA 16; 266 CLR 250 at [53] (affirming the observations of Kirby J in Shi v Migration Agents Registration Authority [2008] HCA 31; 235 CLR 286 at [45], quoting Jebb v Repatriation Commission (1988) 8 AAR 285 at 288 – 290); see also AAL19 v Minister for Home Affairs [2020] FCAFC 114; 277 FCR 393 at [24].

53    Speaking of that continuum, Logan J observed in Savaiinaea v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1849 (at [17]):

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

54    Those observations have particular resonance in the present case.

Analysis

55    We accept that, in the course of seeking revocation of the cancellation decision, the applicant made representations to the effect that her removal to New Zealand would “reopen” for her the experience of her previous sexual abuse whilst at the Weymouth Girls Home. We refer, specifically, to the statements made by the applicant in her Personal Circumstances Form and in her handwritten statement which accompanied her cancellation request: see [22] and [23] above.

56    However, following the delegate’s decision, when the applicant lodged her review application in the Tribunal, the single matter to which she drew attention was the concern she felt for her physical safety, reflected in the danger she sensed at the hands of those who had sexually abused her and whose conduct was under investigation in the Royal Commission in which she had agreed to participate. This was the reason given by the applicant for contending that the delegate’s decision was wrong.

57    As we have noted, by the time of the Tribunal hearing, the effects of this particular concern had, apparently, dissipated. The applicant’s Statement of Facts, Issues and Contentions made no reference to it. The applicant’s statutory declaration was, similarly, silent on that particular matter, except that it disclosed: that she was participating in the Royal Commission; that the “person” who abused her had died in 2019; and that she intended to continue to participate in the Royal Commission to obtain justice and “closure to a very painful part of [her] life”. (We observe that statements made by the applicant refer, variously, to either three staff members or one staff member at Weymouth Girls Home perpetrating the sexual abuse she suffered.) The Minister’s responsive Statement of Facts, Issues and Contentions raised the applicant’s concerns for her physical safety as a possible issue for the Tribunal. However, as events transpired, that particular matter was not advanced by the applicant. It appears to have simply fallen away in the course of the review.

58    The applicant’s Statement of Facts, Issues and Contentions referred, fleetingly, to the applicant’s “childhood history and traumatic experiences” as “extra factors that would make it more difficult” for the applicant to set up a new life in New Zealand: [28] above. However, as we have said, the Statement of Facts, Issues and Contentions did not elaborate on that contention, and certainly did not clearly articulate a claim that the applicant would suffer future trauma by reason of her past sexual abuse. Conspicuously, the applicant’s statutory declaration—which, without contradiction, the Tribunal took to be a “very full and … very detailed statement”—made no reference whatsoever to any concern by the applicant that she would suffer such trauma. One would have thought that if the applicant wished to advance a claim to that effect, then that claim would have found expression in her declaration.

59    In the course of closing submissions in the Tribunal, the applicant’s solicitor did no more than repeat the claim that the applicant’s previous sexual abuse would make it difficult for her to establish a life in New Zealand. The applicant’s solicitor also referred to the applicant’s previous sexual abuse when addressing the expectations of the Australian community—such as to contend, it would seem, that knowledge by the public of the applicant’s “traumatic dealings and upbringing”, taken with other matters, would mitigate the expectation expressed in para 8.4(1) of Direction 90 that non-citizens who, by serious conduct, have disobeyed Australian law, should not be allowed to remain in Australia. Plainly, this was not a submission that, if she were to be removed to New Zealand, the applicant would suffer future trauma by reason of the sexual abuse she had suffered.

60    This leads us to the letter from the Kirketon Road Centre, parts of which we have quoted at [38] and [39] above. This letter records that the applicant had disclosed the fact of her sexual abuse at the Weymouth Girls Home to the writer of the letter and that she had informed the writer that her return to New Zealand would be a return to the scene of her sexual abuse, which would be acutely traumatic for her and undo the good work she had been doing to address the issues of her abuse.

61    This letter is one of a number of documents tendered by the applicant at the Tribunal hearing. Whilst it undoubtedly forms part of the material placed before the Tribunal, it is significant that neither the letter, nor the statements made in it, were referred to in the applicant’s Statement of Facts, Issues and Contentions or the applicant’s declaration, or, indeed, even addressed in the submissions made to the Tribunal on the applicant’s behalf. Thus, the applicant’s own case placed no focus whatsoever on the letter as, itself, advancing a substantial and additional claim to be addressed by the Tribunal.

62    That said, the Tribunal was certainly aware of the letter, because it referred to aspects of it at DR [44]. Thus, the letter was not ignored by the Tribunal.

63    The Tribunal was cognisant of the applicant’s historical sexual abuse and her troubled upbringing. The Tribunal referred to this in a number of places in its Decision Record, notably at DR [82], [83], and [89]. We say “notably” because these paragraphs of the Tribunal’s Decision Record deal with its consideration of the expectations of the Australian community, thereby reflecting the fact that, when undertaking its review, the Tribunal had taken into account the applicant’s closing submissions made at the hearing: [44] above.

64    When dealing with the extent of impediments to the applicant if she were to be removed to New Zealand, the Tribunal did not canvass the applicant’s historical sexual abuse and troubled upbringing again, beyond alluding to the fact that the applicant had been placed in government care in New Zealand when she was approximately 13 years of age (DR [95]). This, however, is of no particular moment given the Tribunal’s earlier acknowledgement of the facts concerning the applicant’s past unhappy experiences and, as we have said, the absence of any elaboration by the applicant in her Statement of Facts, Issues and Contentions—or, for that matter, anywhere else—of how the applicant’s previous sexual abuse would make it difficult for her to establish a life in New Zealand. Indeed, to the contrary, the applicant’s statutory declaration made it tolerably clear that she considered the pursuit of her claim in the Royal Commission as providing the path to closure of this very painful part of her life.

65    We are satisfied that the Tribunal considered the applicant’s case in the way in which that case was advanced and presented to it. We are not persuaded that the applicant did, in fact, advance a substantial and clearly articulated claim that, if she were to be removed to New Zealand, she would suffer future trauma based on her previous sexual abuse at the Weymouth Girls Home. It follows that the Tribunal did not fail to exercise its statutory review function by not addressing such a claim.

Disposition

66    In light of this finding, the applicant’s application for judicial review must be dismissed. The applicant is to pay the Minister’s costs.

Associate:

Dated:    2 August 2022