Federal Court of Australia

Healey v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 188

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs of the appeal.

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

REASONS FOR JUDGMENT

THE COURT:

1.    INTRODUCTION

1    The appellant is a citizen of the United Kingdom who migrated to Australia with his family in 1986 when he was then aged 10. He has lived in Australia ever since, holding a succession of Class BB Subclass 155 Five Year Resident Return Visas. The appellant’s visa was the subject of mandatory cancellation by a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs pursuant to s 501(3A) of the Migration Act 1958 (Cth) following his conviction for numerous offences, the most serious of which was supplying commercial quantities of cocaine and methylamphetamine, for which he was sentenced in 2016 to a term of imprisonment of 10 years, with a seven-year non-parole period.

2    The appellant made representations seeking revocation of the cancellation decision pursuant to s 501CA(4) of the Act and on 31 August 2021 a delegate of the Minister decided not to revoke the cancellation decision. The Administrative Appeals Tribunal affirmed that decision on 19 November 2021.

3    The appellant then sought judicial review of the decision of the Tribunal on three grounds. Of present relevance is the final of those grounds, which was that the Tribunal failed to apply Ministerial Direction 90 in not properly considering the best interests of the child. By a decision made on 29 April 2022 the primary judge dismissed the application: Healey v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 449.

4    The appellant now appeals from that decision.

5    The appellant initially pleaded four grounds of appeal, but in his written submissions confirmed that the only ground pressed is that the primary judge erred in failing to find that the Tribunal had failed properly to consider the best interests of the child pursuant to Direction 90 and thereby fallen into jurisdictional error.

6    For the reasons set out below, we find that the appeal must be dismissed.

2.    DIRECTION 90

7    The primary judge set out the background to Direction 90, as relevantly summarised below.

8    Section 499(1) of the Act provides that the Minister may give written directions to a person or body having functions or powers under the Act if the directions are about the exercise of those functions or powers. Such directions have been made from time to time pursuant to s 499(1) for those decision-makers who are tasked with making a decision under ss 501 or 501CA of the Act, being a decision in relation to visa refusal and cancellation or revocation of a mandatory cancellation of a visa. The iteration that applies to the present case is Direction 90, which came into force on 15 April 2021.

9    The Preamble to Direction 90 is in section 5 of Part 1. Paragraph 5.1 sets out the objectives of Direction 90 which, relevantly, include:

(1)    The purpose of this Direction is to guide decision-makers in performing functions or exercising powers under section 501 and 501CA of the Act. Under section 499(2A) of the Act, such decision-makers must comply with a direction made under section 499.

10    Paragraph 5.2 of Direction 90 provides as follows:

5.2    Principles

The principles below provide the framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen’s visa under section 501, or whether to revoke a mandatory cancellation under s 501CA. The factors (to the extent relevant in the particular case) that must be considered in making a decision under s 501 or section 501CA of the Act are identified in Part 2.

(1)     Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

(2)        Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

(3)        The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engage in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.

(4)        Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding limited stay visas, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.

(5)        Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstance, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mention in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.

11    Part 2 is concerned with exercising the discretion. Section 6 of Direction 90 stipulates that, informed by the principles in paragraph 5.2, a decision-maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.

12    Paragraph 7(1) stipulates that, in applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight. Paragraph 7(2) provides that primary considerations should generally be given greater weight than the other considerations, and section 7(3) provides that one or more primary considerations may outweigh other primary considerations.

13    Section 8 of Direction 90 provides:

8.    Primary considerations

In making a decision under s 501(1), 501(2) or 501CA(4), the following are primary considerations:

(1)        protection of the Australian community from criminal or other serious conduct;

(2)        whether the conduct engaged in constituted family violence;

(3)        the best interests of minor children in Australia; and

(4)        expectations of the Australian community.

14    Paragraph 8.3 of Direction 90, which corresponds to the primary consideration in section 8(3), provides as follows:

…

(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 not 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 child has been, or is at risk of being subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;

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

3.    THE REASONS OF THE PRIMARY JUDGE

15    The reasons given by the primary judge in relation to the bests interests of the appellant’s minor children are as follows (emphasis in original):

39        By Ground 4, Mr Healey contends that the Tribunal misconstrued Direction 90 when considering the best interests of the minor children, in that the Tribunal recorded giving ‘less weight ... to this primary consideration’ having observed that ‘[b]y virtue of his imprisonment during the last seven years, there have been long periods of absence and limited meaningful contact between the Applicant and the children whose interests he invokes’ (Tribunal’s reasons at [132]).

40        It is to be recalled that paragraph 8.3(4)(a) of Direction 90 directs the decision-maker to consider:

(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);

41        Mr Healey argues that separation from parents by virtue of a prison sentence is not an example of a situation contemplated by paragraph 8.3(4)(a) and, were it to be so contemplated, would have the ‘cruel and irrational’ consequence that the executive government intended that all children of prisoners would have less weight given to their need to remain with their parents. Mr Healey contends that paragraph 8.3(4)(a) ‘should be understood as applying to circumstances where there is a demonstrated lack of interest, desire or capacity on behalf of a parent in pursuing the relationship with the child, including where disentitling conduct has occurred leading to a court order preventing contact’.

42        Mr Healey contends further that the Tribunal’s decision to accord less weight to the primary consideration of the best interests of the children because of the long periods of absence and limited meaningful contact ‘involved an inflexible application of policy’. Correlatively, it is said to have involved a failure to consider a matter that was required to be considered, ‘being that the fact of separation by virtue of a prison sentence was a factor that made even greater the interests of the child in revocation of the cancellation, so as to ensure a relationship of attachment adversely effected by imprisonment could be allowed to restore’.

43        This Ground of review is misconceived.

44        The Tribunal was clearly cognizant of its task, noting in particular its obligation to consider the best interests of each child to the extent that their interests may differ (Tribunal’s reasons at [127]). It then recited the contents of paragraph 8.3(4)(a)-(h), noting the requirement to consider those that were relevant (Tribunal’s reasons at [128]).

45        The Tribunal recorded that Mr Healey and his partner have two infant children together, both of whom were born during Mr Healey’s imprisonment (Tribunal’s reasons at [26]). It also recorded that his eldest child with a former partner, whilst still a minor, has now left high school and works in his mother’s family business (Tribunal’s reasons at [44]). The Tribunal acknowledged the frequent references in the prison records to visits and calls between Mr Healey and his family (Tribunal’s reasons at [130]).

46        The Tribunal’s reasons cannot be read fairly as having accorded less weight overall to the primary consideration of the best interests of minor children by reason of the impugned sentence in [132]. Read in context, that paragraph is concerned with subparagraph (a).

132.        By virtue of his imprisonment during the last seven years, there have been long periods of absence and limited meaningful contact between the Applicant and the children whose interests he invokes. [His partner] referred to being forced to do ‘two people’s roles’ during the Applicant’s absence. Less weight is therefore given to this primary consideration. The Tribunal accepts, however, that the Applicant and his family members have done their best to maintain a close relationship between the Applicant, his three biological children, and with [his brother’s] children.

(emphasis added)

47        The ‘less weight’ being attributed to this factor is clearly referable to the provision in subparagraph (a) that ‘less weight should generally be given where there have been long periods of absence, or limited meaningful contact’, and to his partner’s reference to having to do ‘two people’s roles’, being both mother and father, during Mr Healey’s long absence.

48        The Tribunal went on to consider several of the other factors that it was required to consider under paragraph 8.3(4). In particular, referable to subparagraphs (b) and (d), it accepted that the evidence of the eldest child’s mother that Mr Healey’s relationship with that child, who is soon to turn 18, had become less prominent after the child began living with his mother and her family and commenced work. The Tribunal accepted that the emotional hardship experienced by this child following Mr Healey’s imprisonment would only be exacerbated in the event that the cancellation decision was not revoked (Tribunal’s reasons at [133]).

49        The Tribunal drew a distinction between the interests of the eldest son and the two younger children (as required by paragraph 8.3(3)), and, referable to subparagraph (b), found that Mr Healey had done his best to maintain a close a supportive parental role in their lives and was satisfied that, absent a repeat of his past offending, would likely play a positive parental role if released (Tribunal’s reasons at [134]). The Tribunal also found, referable to subparagraph (d), that there are likely to be significant adverse effects on Mr Healey’s younger children in the event of non-revocation (Tribunal’s reasons at [135]).

50        As concerned Mr Healey’s nieces and nephews, the Tribunal found that Mr Healey had developed a close relationship with one and some relationship with the younger children but, referable to subparagraph (e), accorded this factor lesser weight because others perform the parental role (Tribunal’s reasons at [137]).

51        To read paragraph [132] of the Tribunal’s reasons as misconstruing paragraph 8.3(4) of Direction 90 cannot be reconciled with the Tribunal’s findings in paras [133]-[137], nor with its ultimate finding in relation to the best interests of the children, being that it ‘carries very substantial weight in favour of revocation’ (Tribunal’s reasons at [138]).

52        Ground 4 cannot succeed.

4.    THE APPEAL

4.1    The grounds

16    The ground of appeal relied upon is as follows:

The Court below erred at [43] to [51] in not holding that the Tribunal had failed to properly consider the best interests of the child and therefore fallen into jurisdictional error including by:

(i)     Holding at [46] that, “the Tribunal’s reasons cannot be read fairly as having accorded less weight overall to the primary consideration of the best interests of minor children by reason of the impugned sentence in [132]” when such a conclusion was axiomatic.

(ii)     Failing to determine and/or give adequate reasons in respect of the Appellant’s contention that the Tribunal had misconstrued paragraph 8.3(4) of Ministerial Direction 90.

(iii)     Overlooking that the Appellant had advanced a contention that paragraph 8.3(4)(a) of Ministerial Direction 90 was in a particular respect unlawful and failing therefore to deal with that matter.

(iv)    Failing to determine and/or give adequate reasons in respect of the Appellant’s contention that the way in which the best interests of the child had been considered involved an inflexible application of policy.

(v)     Failing to determine and/or give adequate reasons in respect of the Appellant’s contention that the way in which the best interests of the child had been considered involved a failure to intellectually engage with the actual best interests of the child as posed by the facts of the matter including by failing to consider whether the fact of separation by imprisonment required greater weight to be given to the best interests of the child in light of that separation having occurred.

4.2    The appellant’s submissions

17    The appellant submits that when considering the primary factor of the “best interests of minor children affected by the decision” the Tribunal erred in finding at [132] (set out in the primary judge’s reasons at [46] above) that “[l]ess weight is therefore given to this primary consideration”. He submits that the approach of affording less weight on account of “long periods of absence and limited meaningful contact” is derived from para 8.3(4) of Direction 90. He submits that the reasoning of Tribunal reflected jurisdictional error for the following reasons:

(a)    The Tribunal misconstrued cl 8.3(4) of Ministerial Direction 90. Properly construed, it had no application to this matter, where the children and the appellant were separated only by the fact of imprisonment, and the parental relationship, viewed prospectively, would continue fully upon release if the appellant was allowed to remain in Australia.

(b)    [Direction 90] does not direct decision makers that the mere fact of separation by imprisonment generally reduces the weight to be given to the best interests of the child. Such a direction would be arbitrary, cruel and inconsistent with the very concept of the best interests of the child. It is not the intent, nor the terms, of the Direction.

(c)    Considering the best interests of the child involves a prospective analysis, based on the available evidence which will of course involve established historical facts. However, to automatically reduce the weight to be given because of an historical fact, without properly engaging in a prospective assessment of what the best interests of the child mean and require, will generally involve an incorrect approach.

(d)    In the alternative, cl 8.3(4) of [Direction 90] is invalid as [sic] inconsistent with the proper breadth of the discretion created by s 501CA(4) of the Act.

(e)    In the alternative, the Tribunal erred by inflexibly applying a policy and not actually engaging with what the best interests of the children meant in the circumstances.

(f)    Further, the Tribunal erred [in] not considering a matter that it was required to consider in order to properly engage with the consideration, being whether the fact of separation by imprisonment meant more weight should be accorded to the best interests of the child.

18    In relation to materiality, the appellant submits that the primary judge did not expressly find that the purported errors identified in the particulars to the ground relied upon below were incapable of materially affecting the decision. He submits that it cannot be said that the errors made did not deprive the appellant of the possibility of a different decision. The best interests of the children was objectively a most compelling factor. Taken overall, the application to revoke the cancellation was one which had real prospects, as one of the primary considerations and two of the other considerations were found to weigh in favour of revocation. He submits the fact that the Tribunal found that the best interests of the children were found to weigh in favour of revocation does not render the error immaterial. In this regard the appellant cited Degning v Minister for Home Affairs [2019] FCAFC 67; 270 FCR 451 where the majority (Allsop CJ, Collier J agreeing) found that despite the finding that the risk of reoffending was low, the error was a critical issue, and the error was directly relevant to it (at [37]).

4.3    The reasons of the Tribunal

19    The reasons of the Tribunal were lengthy and detailed. For present purposes it is sufficient to summarise them in relatively short form.

20    After referring to some introductory factual matters and setting out the legislative framework, it reviewed the evidence given before it. It referred to the appellant’s evidence that his family in Australia is “very close” and that he spoke with affection about his children, noting his evidence that he played a continual parental role for his children despite his imprisonment during the past seven years ([26], [27]). It reviewed in detail the appellant’s history of drug use and offending ([31]-[33]) and the evidence concerning his risk of recidivism. After summarising other aspects of the evidence it turned to give consideration to it by reference to the primary and other considerations set out in Direction 90.

21    In relation to its consideration of the nature and seriousness of the conduct, it concluded at [77] that the totality of the appellant’s offending and other misconduct to be “extremely serious”. In considering the risk to the Australian community should the appellant commit further offences or engage in other serious conduct as follows (emphasis removed):

96.    The Tribunal considers the Applicant’s recidivism risk is in the ‘low to medium’ range. The extremely serious nature of his past offending and significant risks of harm from any repeat, are such that a low to medium risk of recidivism is unacceptable. This primary consideration weighs very substantially against revocation.

22    In relation to the question of family violence under para 8.2(1), the Tribunal reviewed the evidence, found that his past conduct towards his former partner KR fell within the meaning of family violence and found that his conduct against her enabled it to conclude that this primary consideration weighed “moderately against” revocation (at [126]).

23    In considering the best interests of minor children in Australia, the Tribunal set out para 8.3(4) in full. It noted that the appellant and his current partner, HP, have two infant children, and that he has another older child from a previous relationship with KR. It found that the appellant has maintained a close bond and parenting role with his children through pre-COVID visits, regular audio-visual link calls and through updates from HP. He had less frequent contact with his eldest child ([129]). The Tribunal accepted that the prison records include frequent visits and calls with his family and that prison staff recorded observations of positive interactions with the children ([130]) and with his nieces and nephews.

24    The Tribunal made the following findings:

132.     By virtue of his imprisonment during the last seven years, there have been long periods of absence and limited meaningful contact between the Applicant and the children whose interests he invokes. HP referred to being forced to do ‘two people’s roles’ during the Applicant’s absence. Less weight is therefore given to this primary consideration. The Tribunal accepts, however, that the Applicant and his family members have done their best to maintain a close relationship between the Applicant, his three biological children, and with SH’s children.

133.     Based on the evidence of KR, HP, and others, the relationship with the Applicant’s eldest child has become less prominent after that child started living with his mother and her family, commenced work, and is now approaching adulthood. There is no evidence from this child who turns 18 relatively soon, but KR’s evidence persuasively conveys that the emotional hardship experienced by this child following the Applicant’s imprisonment would only be exacerbated in the event of an adverse decision.

134.     The interests of the Applicant’s two younger children can be differentiated from those of their older half-sibling. The Applicant has done his best to maintain a close and supportive parental role in their lives. The Tribunal is satisfied that absent a repeat of his past offending, the Applicant is likely to play a positive parental role if released.

135.     The Applicant and HP would understandably prefer to remain in Australia with their children, although they are yet to decide what HP and the children might do in the event of an adverse decision. They both point to significant disruption to enable a life together in the United Kingdom. There are likely to be significant adverse effects on the Applicant’s youngest children in the event of non-revocation, irrespective of the choices HP and the Applicant make. If HP decided to accompany the Applicant to the United Kingdom, this would uproot the children from their established life in Australia, including schooling plans and other opportunities. The family would need to re-establish themselves in a foreign country, although the United Kingdom is comparable in many respects with Australia. What is not comparable, however, is the absence of the same level of emotional and practical support available to the Applicant and his family in Australia, business opportunities for HP, and the employment network established by the Applicant. The children would be separated from grandparents, their older half-brother, and other relatives and friends.

136.     If the Applicant and HP decide she and the children will remain in Australia, this would continue the Applicant’s almost decade-long separation from his family and result in considerable emotional distress. There is no evidence about the Applicant’s finances, but it would take time for him to re-establish himself in the United Kingdom and earn an income. Contact with his family in Australia would continue via telephone, video calls, and infrequent visits. This is a poor substitute for the close and supportive family environment in Australia they envisaged at the conclusion of the Applicant’s prison sentence. Given the stress experienced by HP since the Applicant’s incarceration, denial of her expectation that he will return to help and support her, [sic] may cause great emotional distress with concomitant impacts on her ability to continue caring for the children alone.

137.     In terms of nieces and nephews, the Tribunal accepts the Applicant has developed a close relationship with SH’s eldest child and some relationship with the younger children born during his imprisonment. It is accepted he aspires to play a more prominent avuncular role. It is also evident the children from the Applicant’s and SH’s families enjoy regular interaction and a close relationship. Less weight is placed on the Applicant’s relationships with SH’s children, however, given that others perform the parental role.

138.     The Tribunal accepts that revocation is in the best interests of the Applicant’s biological children and his nieces and nephews. This primary consideration carries very substantial weight in favour of revocation irrespective of the decision the Applicant and HP might make in the event of an adverse decision.

25    In relation to the primary consideration of the expectations of the Australian community, the Tribunal found that this consideration “weighs very substantially against revocation” ([147]).

26    Turning to the other considerations, the Tribunal concluded that the impediments facing the appellant were he to be returned to the United Kingdom to be “significant, but not insurmountable” ([155]) and considered that this weighed moderately in favour of revocation. It considered that the consideration of impact on victims should also have this weighting ([160]).

27    In its conclusion, the Tribunal relevantly said:

171.    Because of the combined effects of ss 501(6)(a) and 501(7)(c) of the Act, the Applicant does not pass the character test. In determining whether there is ‘another reason’ why the visa cancellation should be revoked, the Tribunal has applied the Direction to the specific circumstances of this case. The Tribunal sees no reason to depart from the guidance in the Direction that greater weight ‘should generally be given’ to the primary considerations than other considerations.

…

173.    Approaching the end of his seventh year in prison, it is commendable the Applicant has not committed any serious misconduct or relapsed into alcohol or illicit drug use. Despite his circumstances, he has also managed to stay meaningfully engaged as a parent and uncle. Revocation is clearly in the best interests of the minor children in his life.

174.    Of the other considerations in this matter, the Applicant is confronted by significant but not insoluble impediments if returned to the United Kingdom. This would separate him, and potentially HP and the children, from their principal sources of support in Australia.

175.    Having weighed all relevant considerations individually and cumulatively, the Tribunal finds there is not another reason why the mandatory cancellation of the Applicant’s visa should be revoked. That is because the primary considerations ‘Protection of the Australian community,’ ‘Family violence committed by the non-citizen’, and ‘Expectations of the Australian community,’ considerably outweigh the combined weight to be given to the primary consideration ‘Best interests of minor children in Australia’ and the other countervailing considerations.

4.4    Consideration

28    The appellant contends that the Tribunal misconstrued para 8.3(4)(a) in circumstances where he had been incarcerated for 7 years before the decision and so could not avoid a long period of absence from his children. He submits that para 8.3(4)(a) cannot operate in this way, which would be arbitrary, cruel and inconsistent with the very concept of the “best interests” of the child.

29    Paragraph 8.3(4) provides a list of factors that must be considered “where relevant” in the assessment of primary consideration (3). It is for the decision maker to determine relevance. Factors (a) to (h) identify the considerations, each of which, if considered relevant, may be taken into account and afforded weight. The obligation placed on the decision maker is to “consider”, meaning that it must apply an active intellectual process to each matter. In Tickner v Chapman [1995] FCA 987; 57 FCR 451 this was explained at 476-477 (Burchett J) and at 495, where Kiefel J, as the Chief Justice then was, said:

To “consider” is a word having a definite meaning in the judicial context. The intellectual process preceding the decision of which s 10(1)(c) speaks is not different. It requires that the Minister have regard to what is said in the representations, to bring his mind to bear upon the facts stated in them and the arguments or opinions put forward and to appreciate who is making them. From that point the Minister might sift them, attributing whatever weight or persuasive quality is thought appropriate. However, the Minister is required to know what they say…

30    In para 8.3(4)(a) the factor is the “nature and duration of the relationship between the child and the non-citizen”. It provides that “[l]ess weight should generally be given where … there have been long periods of absence, or limited meaningful contact …”. The word “generally” indicates that the decision maker is not obliged to apply less weight, but should consider whether or not to do so.

31    Nothing in the language used in para 8.3(4)(a) suggests that the decision maker ought not to take into account periods of absence or limited meaningful contact arising from periods during which an applicant is incarcerated. To the extent that the appellant submits otherwise, that submission must be rejected.

32    Nor do we accept that the consequence of this construction of para 8.3(4)(a) must be that the paragraph is ultra vires and unlawful. Section 501CA(4)(b) confers an obligation upon the Minister (and, by extension, the Minister’s delegate pursuant to s 501(1) and the Tribunal upon review under s 500) to reach a state of satisfaction “that there is another reason why the original decision should be revoked”; Ali v Minister for Home Affairs [2020] FCAFC 109; 278 FCR 627 at [109] (Collier, Reeves and Derrington JJ). Paragraph 8.3(4)(b) does not serve to fetter the manner in which the decision maker reaches that state, but acts a guide to decision-makers in exercising the power conferred upon them, see FYBR v Minister for Home Affairs [2019] FCAFC 185; 272 FCR 454 at [63]-[64] (Charlesworth J, Stewart J agreeing). We see no inconsistency between this aspect of Direction 90 and the operation of s 501CA(4)(b) of the Act.

33    The appellant next submits that the Tribunal at [132] failed to give consideration to the application of para 8.3(4)(a) by “automatically” reducing the weight to be given the best interests of the children by reference to an historical fact (presumably, we interpolate, his period of incarceration and inability to have meaningful contact) without properly engaging in a prospective assessment of the best interests of his children. This argument cannot survive the rejection of the construction argument to which we have referred. The general guidance provided by para 8.3(4)(a) as to the weight to be given to such matters plainly requires a decision maker to consider such historical facts and indicates that, when appropriate, weight may be placed on them. It is apparent from the seven other factors identified in para 8.3(4) that additional “prospective” matters are also taken into account in considering the question overall. It is clear that in [133]-[137] of its reasons the Tribunal considered, as the primary judge observed at [48]-[50], such of the other factors identified in para 8.3(4) as it considered to be relevant.

34    We accept that there is some awkwardness in the language of [132] where it says “[l]ess weight is therefore given to this primary consideration”. In his written submissions the appellant accepts that this sentence must be taken to be a reference to less weight in the context of para 8.3(4)(a), rather than primary consideration (3) more generally. The appellant criticises what it terms the “axiomatic” diminution of weight given to that factor, and thereby primary consideration (3) more generally. He points to a submission that he made to the Tribunal to the effect that the Tribunal is not bound by para 8.3(4)(a) to give less weight to this consideration simply because the appellant had limited meaningful contact with his two younger children, given his substantial period of imprisonment. He submits that the Tribunal failed to engage with that submission and proceeded in [132] to apply para 8.3(4)(a) “automatically” or “inflexibly” to apply the sub-paragraph.

35    We do not consider that this argument has merit.

36    We agree with the conclusion of the primary judge at [49] that the finding of the Tribunal at [132] must be understood to be a reference to para 8.3(4)(a). The Tribunal had no obligation to give reasons why it did not consider it appropriate to depart from the guidance provided by that sub-paragraph. Its obligation was to state the findings that it made and the reasons for the decision; Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 at [68] (McHugh, Gummow and Hayne JJ), [235] (Callinan J). This did not require it to state reasons for every finding of fact made; Yusuf at [235]. Nor was it required to articulate every detail of its consideration of the weighing process; Pallas v Minister for Home Affairs [2019] FCAFC 149 at [45] (Derrington J, Greenwood and Logan JJ agreeing).

37    The reasons of the Tribunal demonstrate that it was aware of its statutory task and the terms of para 8.3(4), which it had recited at [127]-[128]. It was also aware that it was not obliged slavishly to apply para 8.3(4)(a), a point that is apparent from its reasons at [21]-[22] where it specifically acknowledged the weighting process permitted within Direction 90 by reference to paragraphs 7(2) and 7(3), and also the language of its reasons at [171], which is set out above. We accordingly do not draw an inference from its statement at [132], that by the impugned sentence the Tribunal considered that it had no choice but to apply para 8.3(4)(a) in its terms, that it had automatically applied its terms without further consideration, or that it did not consider that it was open to it to give a different weight to the fact of the appellant’s separation from his children or the lesser availability of meaningful contact.

38    We also reject the submission advanced by the appellant to the effect that the Tribunal failed to consider that the fact of separation by imprisonment meant that more weight should be accorded to the best interests of the child. A decision under s 501CA(4) is broad and evaluative. One of the matters which engages the power to revoke a prior cancellation is that the person given the invitation under s 501CA(3) by the Minister has made representations to the Minister. The representations must be considered by the Minister and in that sense are a mandatory relevant consideration of the type contemplated in Tickner to which we have referred. However, they are mandatory relevant considerations as a whole, and not as to the individual statements contained in the representations; Minister for Home Affairs v Buadromo [2018] FCAFC 151; 267 FCR 320 at [41] (Besanko, Barker and Bromwich JJ); Goundar v Minister for Immigration and Border Protection [2016] FCA 1203; 160 ALR 107 at [55]-[56] (Robertson J). As the Full Court in Buadromo observed, “a finding of fact may not be required if the claim or issue is irrelevant or if it is subsumed within a claim or issue of greater generality”; at [46]. In the present case, there is no cogent reason why the Tribunal ought to have given any additional or separate consideration to the question of whether more weight should be given to the best interests of affected children on account of the fact that the appellant and the affected children had been separated as a consequence of the appellant’s incarceration.

39    Finally, for completeness we note that in any event the appellant fails at the threshold of materiality within MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; 390 ALR 590 at [38]-[39] (Kiefel CJ, Gageler, Keane and Gleeson JJ).

40    In the present case, the Tribunal concluded that the totality of the appellant’s offending and other misconduct was “extremely serious” ([77]) and that the risk to the Australian community should he re-offend weighed “very substantially” against revocation ([96]). It found that the family violence consideration weighed “moderately” against revocation ([126]) and that the expectations of the Australian community weighted “very substantially” against revocation ([147]). In the context of the primary consideration of the best interests of the appellant’s children, it concluded that this carried “very substantial weight in favour of revocation” ([138]).

41    Turning to primary consideration (3), it is apparent from the reasoning in [132]-[137] that, notwithstanding the lesser weight afforded by reason of the separation and limited meaningful conduct in [132], the Tribunal’s view as to the strength of the best interests of the children in favour of revocation was very strongly buttressed by the other factors identified. The Tribunal found that other considerations, such as the “significant but not insurmountable” impediments confronting the appellant upon his return to the United Kingdom ([155]) and the impact on victims ([160]), weighed “moderately” in favour of revocation. The strength, nature and duration of his ties to Australia were also found to weigh “very substantially” in favour of revocation ([169]).

42    After identifying all of these factors, in its conclusion at [175] the Tribunal considered that the protection of the Australian community, family violence committed by the appellant and expectations of the community “considerably outweigh[ed] the combined weight” to be given to the best interests of minor children and the other countervailing considerations.

43    In our view, the appellant has not discharged the onus on it to establish, on the assumption that the Tribunal erred in its assessment at [132] by affording lesser weight to the best interests of minor children by reference to para 8.3(1)(a), that he was denied the realistic possibility that a different decision could have been made had there been no error; MZAPC at [39].

44    Accordingly, for the reasons set out above, the appeal must be dismissed. The appellant must pay the first respondent’s costs of the appeal.

Associate:

Dated:    29 November 2022