Federal Court of Australia
Manebona v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 116
ORDERS
Appellant | ||
AND: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent | |
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. The appeal be allowed.
2. The orders of the primary judge of 24 June 2022 be set aside.
3. The decision of the second respondent of 17 December 2021 be set aside.
4. The matter be remitted to the second respondent to decide according to law.
5. The first respondent pay the appellant’s costs of the appeal and the proceeding before the primary judge.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
[4] | |
[12] | |
[30] | |
[52] | |
[69] | |
[71] | |
[90] | |
The first ground: the Tribunal’s alleged misconstruction or misapplication of para 9.2 of Direction 90 | [90] |
The second ground: whether the primary judge erred in construing para 9.3(1) of Direction 90 | [118] |
[118] | |
[157] |
THE COURT:
1 The appellant appeals from the judgment in Manebona v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 730. By that judgment, the primary judge dismissed the appellant’s application for judicial review of a decision of the second respondent (the Tribunal).
2 The Tribunal’s decision affirmed a decision of a delegate of the first respondent (the Minister) under s 501CA(4) of the Migration Act 1958 (Cth) (the Act) refusing to revoke a decision under s 501(3A) of the Act to cancel the appellant’s visa.
3 Before considering the parties’ submissions, we will summarise the factual background, the legislative scheme, the Tribunal’s decision, and the primary judge’s reasons for judgment.
4 The appellant is a citizen of the Solomon Islands. He is now 36 years of age and has lived continuously in Australia since 2007, when he was 20 years old.
5 On 9 December 2020, the appellant was sentenced in the District Court of Queensland, relevantly, to:
two years’ imprisonment for one count of Choking Suffocation Strangulation Domestic Relationship – Domestic Violence Offence;
18 months’ imprisonment for one count of Assault Occasioning Bodily Harm – Domestic Violence Offence.
6 The terms of imprisonment were ordered to be served concurrently and were to be partially suspended for a period of two years after serving three months’ imprisonment.
7 On 10 February 2021, the Minister cancelled the appellant’s Class BC Subclass 100 Spouse visa pursuant to s 501(3A) of the Act.
8 On about 28 February 2021, the appellant made representations to the Minister seeking that the cancellation decision be revoked under s 501CA(4) of the Act.
9 On 29 September 2021, the Minister (by a delegate) refused to revoke the cancellation.
10 On the same day, the appellant applied to the Tribunal for review of the delegate’s decision pursuant to s 500(1)(ba) of the Act. On 17 December 2021, the Tribunal affirmed the decision under review.
11 On 18 January 2022, the appellant sought judicial review of the Tribunal’s decision in the Federal Court of Australia. That application was dismissed by the primary judge on 24 June 2022.
12 Section 501(3A) of the Act provides that the Minister must cancel a visa if satisfied, relevantly, that the holder does not pass the character test because of the operation of para (6)(a) (substantial criminal record) on the basis of para (7)(c), and the person is serving a sentence of imprisonment on a full-time basis in a custodial institution for an offence against a law of a State.
13 Section 501(6)(a) of the Act provides that a person does not pass the character test if the person has a substantial criminal record (as defined by para (7)). Section 501(7)(c) provides that a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more. As the appellant had been sentenced to imprisonment for in excess of 12 months, the Minister was satisfied he did not pass the character test.
14 Section 501CA(3)(b) of the Act requires the Minister to invite a person whose visa has been cancelled under s 501(3A) to provide representations about revocation of the original decision. The appellant made representations in response to the invitation.
15 Section 501CA(4) provides:
(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.
16 The decision of the Minister’s delegate to refuse to revoke the cancellation decision and the Tribunal decision affirming the delegate’s decision were made pursuant to s 501CA(4) of the Act.
17 Section 499(1) of the Act allows the Minister to give written directions to a person or body having functions or powers under the Act if the directions are about the performance of those functions or the exercise of those powers. Section 499(2A) requires a person or body to, “comply with a direction under subsection (1)”.
18 Direction 90, which came into force on 15 April 2021, provides directions for the making of decisions under ss 501 and 501CA of the Act.
19 The Preamble to Direction 90 is contained in para 5, and sets out a number of principles that provide the framework within which decision-makers should approach their task.
20 Part 2 of Direction 90 has the heading, “Exercising the discretion”.
21 Paragraph 6 provides:
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.
22 The expression “decision-maker’ is defined in para 4(1) to include the Tribunal when making a decision under s 501CA of the Act.
23 Paragraph 7 provides; relevantly:
…
(2) Primary considerations should generally be given greater weight than the other considerations.
(3) One or more primary considerations may outweigh other primary considerations.
24 Paragraph 8 states that 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;
(4) expectations of the Australian community.
25 Paragraph 8 goes on to explain each of the primary considerations and specify matters that decision-makers should or must consider.
26 Paragraph 9 has the heading, “Other considerations”, and provides:
(1) In making a decision under section 501(1), 501(2) or 501CA(4), other considerations must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
(a) international non-refoulement obligations;
(b) extent of impediments if removed;
(c) impact on victims;
(d) links to the Australian community, including:
(i) strength, nature and duration of ties to Australia;
(ii) impact on Australian business interests.
27 Paragraph 9.2 explains what is meant by, “extent of impediments if removed”, and guides the way that consideration is to be taken into account:
Extent of impediments if removed
(1) 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.
28 Paragraph 9.3 deals with, “impact on victims”, providing:
Impact on victims
(1) Decision-makers must consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
29 Paragraph 9.4 deals with, “links to the Australian community”, providing, relevantly:
Links to the Australian community
Reflecting the principles at paragraph 5.2, decision-makers must have regard to paragraphs 9.4.1 to 9.4.2 below.
The strength, nature and duration of ties to Australia
(1) Decision-makers must consider any impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
…
The Tribunal’s reasons for decision
30 The appellant was self-represented before the Tribunal. The Minister was represented by a solicitor.
31 The appellant relied upon his representations to the Minister, a “personal circumstances form” and several statements and emails and letters he had written. He also tendered letters from various family members and other persons who supported his application.
32 Importantly, there was before the Tribunal a statutory declaration of his former partner, the victim of his offending (“Ms W”). She declared that:
I [Ms W] am the partner off John Manebona, we have been together since 7th of June 2014, John and I share two children together, their names are [J] aged 5 years old and [P] aged 3 years old.
Our 5 year old daughter [J] loves her father, they have a very good relationship, they are like best friends. [J] misses her father dearly, she is very stressed and unsettled and confused all the time asking and crying for her father. [J] is also not sleeping or eating very well at night due to not being able to see her father or visit him.
[P] our other daughter aged 3 years old is also asking and crying for her father. [P] loves her father very much, she sometimes gets confused on who to call dad due to her age, which can be unfair and heartbreaking to witness.
Both my daughters are missing out on their father John Manebona, which I [Ms W] believe is unfair for both off them, and unsettling and painful to witness.
I [Ms W] do not want my two daughters missing out on their father, and also do not want John Manebona the father off my two daughters, to miss out seeing his two daughters growing up in Australia. I [Ms W] believe John Manebona is a very good person and important role model and father figure for [J] and [P]. John loves and adores his two little girls very much.
For the health and wellbeing off my both my daughters [J] and [P], I hope and pray we do not lose their father from our lives, we all love and miss him dearly.
(Errors in original.)
33 The appellant was unable to contact Ms W because a domestic violence order prohibiting such contact was in place, but she was called by the Minister to give oral evidence. The appellant did not cross-examine Ms W.
34 In its reasons, the Tribunal described Ms W’s oral evidence as follows:
95. W confirmed the veracity of her statutory declaration of 16 January 2021 and told the Tribunal she said she is no longer the Applicant’s partner, and that their relationship had ended the night of the incident when she was assaulted, and which led to him being imprisoned. They had been living together in an on and off relationship over a period of five years since June 2014.
96. W expressed support for the Applicant to remain in Australia so that their children can have access to their father. She expressed concern for her children’s mental health and said that the older one remembers him a lot more than the younger one and asks for him and wants to speak to him. Her younger girl does not really remember her father much. It has affected the older one a lot more.
97. She said that she and the Applicant will not be living together if he is released, and he cannot come near her until 2025 in consequence of the DVO. When asked about the offences of 2019, she said she felt like it was “just a little fight that really got out of hand”. She agreed that the offences he committed against her were very serious, and she was taken for x-rays to ensure nothing was broken. She had bruising to her neck and back. The children were present when the offences were committed. She claimed that this was the first time it ever happened. After she was taken to a hospital she was placed in a refuge.
98. When asked about the DVO issued in 2018, she could not recall the incident which gave rise to it. She said she has a “pretty good” relationship with his mother and sister and was going to the mother’s house for the Applicant’s brother’s birthday that evening.
99. She said her relationship with the Applicant was definitely over. She felt they could both be civil, and she is willing to share the children with him and his family. He is a good father, and she believes he is a good person. They just cannot get along.
100. W made no mention of any intention or attempt to revoke the DVO or shorten its duration.
35 The Tribunal did not refer to the parts of Ms W’s written and oral evidence where she referred to detriment that would be caused to her if the appellant were removed from Australia. For example, the following exchange took place between the solicitor representing the Minister and Ms W:
Would it be fair to say that the reason that you support the appellant remaining in Australia is so that your children can have their father in the same country?---Yes.
Will the appellant provide any other support to you if he remains in Australia, such as, for example, financial support?---It’s not just financial support, it’s mainly for my children and it’s, the older one remembers him a lot more than the younger one…
36 Later, in response to a question asked by the Tribunal member, Ms W said:
And my feelings is, I don’t want them to lose their father. My younger girl, she sort of doesn’t remember her dad as much, but my older girl, every day still, asks for her dad, like to see her dad and speak to her dad. It’s actually affected her a lot more and it’s quite heartbreaking to watch.
37 As will become apparent, the Tribunal’s treatment of Ms W’s evidence is critical to the outcome of the appeal.
38 In its reasons for its decision, the Tribunal first considered s 501CA(4)(b)(i) of the Act, finding it was satisfied the appellant did not pass the character test set out in s 501(6)(a) of the Act. That finding has not been challenged.
39 The question for the Tribunal became whether, pursuant to s 501CA(4)(b)(ii) of the Act, it was satisfied there was “another reason” why the original decision should be revoked. The Tribunal noted that it was bound to have regard to Direction 90 in answering that question. The Tribunal then discussed the evidence and methodically worked through the Direction before reaching its conclusion.
40 When considering the first primary consideration of, “protection of the Australian community from criminal or other serious conduct”, the Tribunal discussed the role that the appellant’s consumption of alcohol had played in his offending. That discussion will be considered later in these reasons.
41 The Tribunal found that the appellant’s offending could be characterised as very serious. The Tribunal also found:
166. The risk of further family violence appears to hinge very much on his ability to manage his alcohol consumption, and the evidence before the Tribunal is not sufficient to allow it to find that there is a real prospect that he is able to do so.
…
169. The Tribunal considers there to be a very real risk that if the Applicant continues to consume alcohol - which appears likely - he will commit further offences or other serious conduct in the future.
42 The Tribunal went on to conclude that the first primary consideration weighed very heavily against revocation of the cancellation of the appellant’s visa.
43 In relation to the primary consideration of, “the best interests of minor children in Australia”, the Tribunal noted that the appellant had identified his two minor biological daughters and his niece as relevant children who would be affected by the decision. The Tribunal found that this primary consideration weighed in favour of revocation.
44 The Tribunal found that the primary consideration of, “expectations of the Australian community”, weighed against revocation.
45 The Tribunal found that the primary consideration of, “whether the conduct engaged in constituted family violence”, also weighed against revocation.
46 The Tribunal turned to the “other considerations” identified in Direction 90. The Tribunal commenced by considering, “extent of impediments if removed”, under para 9.2. In respect of “the non-citizen’s age and health” under para 9.2(1)(a), the Tribunal found:
The Applicant is a 35-year-old man, and he does not contend, and there is no medical evidence that he suffers any health issues.
47 The Tribunal went on to consider other aspects of para 9.2, finding that the, “extent of impediments if removed”, weighed in favour of revocation of the cancellation decision.
48 The Tribunal then considered, under para 9.3(1), “the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where information in this regard is available”. The Tribunal found, relevantly:
211. The only relevant evidence before the Tribunal comes from the victim of the Applicant’s most serious offending, W, who gave evidence before the Tribunal that although her relationship with the Applicant is finished, she has a good relationship with his mother and sister, and was going to his mother’s home that evening to attend the Applicant’s brother’s birthday. She gave positive evidence regarding the Applicant particularly as to his role as a father, a good person, and an important role model, and requested for the sake mainly of her elder daughter, that the Applicant be allowed to remain in Australia.
212. The Tribunal is concerned that W’s evidence has been to some degree compromised by the closeness of her relationship with the Applicant’s mother, sister and brother, and tailored in consequence. The Tribunal gives W’s evidence little weight in regard to this consideration.
...
214. In the absence of other relevant evidence, the Tribunal gives this Other Consideration neutral weight.
49 The Tribunal found that the “other consideration” of, “strength, nature, and duration of ties to Australia”, weighed in favour of revocation.
50 The Tribunal found that the “other considerations” of international non-refoulement and impact on an Australian business interest, did not apply in this case.
51 Ultimately, the Tribunal found that the adverse primary considerations outweighed the countervailing primary and other considerations. The Tribunal found that application of Direction 90 favoured non-revocation of the cancellation decision, and affirmed the delegate’s decision.
The reasons of the primary judge
52 The appellant’s first ground of review asserted a constructive failure to exercise jurisdiction by the Tribunal. The primary judge described the gravamen of the ground as being that the Tribunal failed to consider a mandatory consideration under para 9.2 of Direction 90 relevant to the extent of impediments the appellant may face if removed to the Solomon Islands, namely his health.
53 The primary judge observed that the appellant had to establish that the Tribunal did not consider, or give active intellectual consideration to, the relevant impediments. The Tribunal noted that the appellant had stated he had no diagnosed medical or psychological conditions, he was not currently being treated by any doctor or health professional and was not taking any medications. The Tribunal had observed that the medical records made no health recommendations, described him as “a fit and healthy young man” and recorded, “Social alcohol use, did not elaborate, does not sound significant amounts”, and, “denied past Hx [history] of Drug and Alcohol”.
54 The primary judge found that it could not be realistically contended that the Tribunal did not take into account the appellant’s “health” in considering the extent of any impediments he may face in establishing himself and maintaining basic living standards in the Solomon Islands. Her Honour considered that the Tribunal could not be criticised for its finding that, “there is no medical evidence that he suffers any health issues”, and, indeed, the medical evidence was to the contrary. Further, the appellant had positively disavowed any diagnosed medical or psychological conditions and any current treatment in respect of his health.
55 The primary judge found that, consequently, there was no logical reason for the Tribunal to consider whether and what medical support the appellant was going to need in the Solomon Islands when directing its attention to para 9.2(1) of Direction 90, the Tribunal having concluded, at least implicitly, that he would need none. The appellant had indicated that he had no concerns or fears about what would happen to him if he were to return to the Solomon Islands and there was nothing in the evidence before the Tribunal that raised the prospect of the appellant’s alcohol use impeding him in establishing himself or maintaining a basic standard of living. He had encountered no such difficulties in Australia where he had maintained steady employment without any apparent recourse to medical support for his alcohol use.
56 The primary judge held that the appellant had not discharged his onus of establishing there was evidence on which the Court could conclude that the Tribunal failed to consider potential impediments to his return to the Solomon Islands.
57 The primary judge noted that the appellant had also argued that the Tribunal was required to consider the appellant’s condition as a health issue when considering para 9(1)(b), whether or not the appellant raised it himself, because it was in the nature of an unarticulated claim that had “clearly emerged” on the material, including in the context of the Tribunal’s findings upon the primary consideration of protection of the Australian community.
58 The primary judge observed that the Tribunal had accepted that the appellant’s alcohol use was a major contributing factor to his offending and there was insufficient evidence to find there was a real prospect of the appellant being able to manage his alcohol consumption. However, her Honour found that this did not amount to any finding that he had a sustained alcohol abuse problem.
59 Her Honour found that no issue under para 9.2 could have emerged for consideration. First, the suggestion that the appellant suffered from “serious problems with alcohol” or any reasonably identifiable alcohol related disease did not emerge on any “established facts” whether as found by the Tribunal or otherwise. What did emerge was that the appellant had a serious problem with offending when he used alcohol. Secondly, even if it could be said that the appellant had some relevant alcohol related health issue, the appellant had not contended that his alleged problems with alcohol would impede him in establishing or maintaining basic living standards in the Solomon Islands.
60 The primary judge held that the appellant had not established that there was a constructive failure to exercise jurisdiction by the Tribunal. Her Honour considered that even if such an error were established, the error would not be material. Her Honour considered that in light of the strong findings made by the Tribunal concerning the primary considerations, it was difficult to see that there was a realistic possibility that a different decision could have been made if any alleged serious problems with alcohol were expressly considered under para 9.2(1)(a).
61 The appellant’s second ground before the primary judge asserted that the Tribunal had denied him procedural fairness. In considering the impact on members of the Australian community including victims pursuant to para 9.3(1) of Direction 90, the Tribunal found that Ms W’s evidence was “compromised” and “tailored” because of her close relationship with members of the appellant’s family and, accordingly, gave her evidence “little weight”. The appellant contended that the Tribunal should have advised that it was minded to draw that conclusion, which was not obviously open on the known material.
62 The primary judge noted that the previous iteration of para 9.3(1) of Direction 90 was para 14.4(1) of Direction 79, which required that, where relevant, that decision-maker must take into account, “Impact of a decision not to revoke on members of the Australian community, including victims of the non-citizen’s criminal behaviour…”.
63 Her Honour observed that in CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2020] FCA 1842 (CGX20 (No 2)), CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 69; (2021) 284 FCR 416 (CGX20 FC) and DKN20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 69; (2021) 285 FCR 1 (DNK20), it had been held that the inclusion of the word “not” in para 14.4 of Direction 79 was an obvious error and there was no scope under that paragraph for the Tribunal to consider the impact on a victim of a decision not to revoke the cancellation of a visa.
64 The primary judge went on to hold that, “It is clear from the recasting of cl 14.4 by para 9.3(1) of Direction 90 that it is the impact on a victim of the perpetrator remaining in Australia which is the matter to be considered, where relevant”.
65 The primary judge stated that no evidence of the impact on Ms W “as a victim of the family violence” committed by the appellant had been raised as a relevant issue, and the Tribunal had found as much. Her Honour concluded that in the absence of evidence given by Ms W “about the impact on her as a victim of the family violence”, the Tribunal’s concerns could not be construed as an adverse finding of W’s credibility in relation to the evidence that she did adduce.
66 In deciding that any procedural unfairness would in any event be immaterial, her Honour concluded that, “the impact on victims is only to be considered in circumstances where the offender is to be permitted to remain in Australia”.
67 The primary judge held that, in these circumstances, the appellant had not been denied procedural fairness.
68 Accordingly, her Honour dismissed the appellant’s application for judicial review.
69 The appellant’s Notice of Appeal describes the grounds of appeal as follows:
1. The primary judge erred in failing to find that the decision of the second respondent (the Tribunal) was vitiated by error in its consideration of clause 9.2 of Direction 90.
2. The primary judge erred, at [55], in her construction of clause 9.3(1) of Direction 90.
3. The primary judge erred in failing to find that the Tribunal denied procedural fairness to the applicant.
4. The primary judge erred in the application of the test for ‘materiality’ to the errors identified at 1 above, and at 2 and 3 above.
70 The appellant’s submissions treated the second ground as an aspect of the third ground. The fourth ground was also dealt with as an aspect of the other grounds.
71 The appellant’s first ground of appeal concerns the Tribunal’s consideration of the “extent of impediments if removed from Australia” under para 9.2 of Direction 90.
72 In his written submissions, the appellant argues that the Tribunal’s finding that the appellant, “does not contend, and there is no medical evidence that he suffers any health issues”, is affected by error. He submits that the Tribunal erred in reasoning that his alcohol dependency was not required to be considered as a “health issue” under para 9.2(1)(a) of the Direction. He relies on Holloway v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1126 (Holloway), where Colvin J at [12] found that a history of substance abuse could be an aspect of a person’s overall health.
73 The appellant submits that the Tribunal held his alcohol dependency and abuse against him in considering risk to the community, but did not bring that into account when it came to consider para 9.2(1). He argues that even though he had (wrongly) disclaimed any health issue, the Tribunal was not relieved of its obligation to comply with para 9.2(1)(a) of Direction 90. He submits that it does not matter whether any claim about his ill-health was made expressly or clearly emerged on the materials in circumstances where the Tribunal made findings concerning his alcohol dependency and abuse.
74 The appellant submits that the natural inference is that the Tribunal misapplied para 9.2(1)(a) of Direction 90, relying on LRMM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1039 (LRMM), where Logan J held at [27] that the applicant’s difficulties with alcohol were so important to the Tribunal’s reasoning in respect of risk, that it should be inferred that the Tribunal had forgotten that it was necessary to later separately advert to this health condition.
75 The appellant also submits that the primary judge’s finding that any error would be immaterial involved her Honour effectively engaging in merits review.
76 In his oral submissions, the appellant argued that the Tribunal had misconstrued para 9.2(1)(a) of Direction 90 by interpreting the word “health” as if “a medically-certified issue” was required. That argument was not made at first instance, but the Minister has not taken any objection to the argument being raised in the appeal.
77 The appellant’s third ground of appeal asserts that the primary judge erred in failing to hold that the appellant was denied procedural fairness in respect of its finding that Ms W’s evidence was “compromised” and “tailored”. The second ground concerns her Honour’s construction of para 9.3(1) of Direction 90 as only applying to the impact on a victim of the perpetrator remaining in Australia in the course of rejecting the ground of denial of procedural fairness.
78 The appellant observes that the Tribunal did not put to Ms W any concern that her evidence was compromised or tailored due to her relationship with the appellant’s family. He submits that had these matters been put, she might realistically have explained why any such concerns were unfounded. In the application for judicial review before the primary judge, the appellant led evidence from Ms W as to what she might have said.
79 The appellant also submits that her Honour’s construction of para 9.3(1) as applying only to the impact on a victim of an offender remaining in Australia is wrong.
80 As to the appellant’s first ground, the Minister submits that the Tribunal made no finding that the appellant had alcohol dependency. The highest the findings went was there was a “risk” of the appellant not being able to “manage” his alcohol consumption in the future. The Minister submits this was consistent with the evidence, including that the appellant was only drinking twice per month immediately before his incarceration on 9 December 2020 and had not consumed alcohol since. It is submitted that, accordingly, there was nothing in the material to suggest that the appellant’s historic problems with alcohol amounted to a health issue.
81 The Minister submits that since the Tribunal had discussed at length the appellant’s past use of alcohol and his risk of relapsing into alcohol consumption, no inference can be drawn that the Tribunal failed to consider the impediments which he may face on account of any issues with alcohol.
82 The Minister submits that any error in applying para 9.2(1)(a) of Direction 90 was immaterial because there was no evidence reasonably capable of enabling the Tribunal to find that any alcohol issues would cause the appellant to face impediments in the Solomon Islands in establishing himself and maintaining basic living standards.
83 The Minister also submits that the appellant’s reliance on LRMM is misplaced for the reasons given by the primary judge, including that here there was no diagnosis of alcohol dependency disorder, the appellant had positively disavowed any health conditions and para 9.2(1)(a) was not, in any event, engaged.
84 As to the appellant’s second ground, the Minister submits that the primary judge correctly construed para 9.3(1) as being concerned with the impacts on “victims as victims”, and as not requiring a decision-maker to consider the negative impacts a victim might sustain by the perpetrator being removed from Australia. This construction is said to be consistent with Full Court authority.
85 The Minister submits that even if her Honour’s construction of para 9.3(1) were wrong, it would not follow that an appealable error is established. That is because the proper construction of para 9.3(1) does not detract from the correctness of her Honour’s conclusion that the rules of procedural fairness were not breached.
86 As to the third ground of appeal, the Minister relies on the primary judge’s finding that the Tribunal’s findings should be understood as indicating only that the Tribunal was concerned that Ms W had not given any evidence about the impact on her, “as a victim of family violence”. Ms W had given no evidence suggesting that there would be impacts on her as a victim by the appellant remaining in Australia. The Minister submits this absence of evidence was surprising in view of the nature and apparent consequences for Ms W of the incidents of family violence. It is submitted that the Tribunal’s expressed concern about Ms W’s evidence being “tailored” or “compromised” was simply a reference to Ms W’s evidence being focussed on the appellant’s positive traits and not on the impacts on her as a victim.
87 The Minister also submits that, in any event, the Tribunal made no positive adverse finding, but only expressed a “concern”.
88 The Minister also submits that Ms W was clear in her oral evidence that, at an emotional level, she was not affected by the appellant’s removal from Australia, as their relationship had ended and the reason she was giving evidence was for her children’s benefit. The Minister contends that the only evidence before the Tribunal concerning the potential adverse effect to Ms W by the appellant’s removal was a potential reduction in financial support, but that evidence was not reasonably capable of being given any material, let alone dispositive, weight. The Minister also submits that the Court cannot be satisfied that the Tribunal did not take the financial impact on Ms W into account in its decision.
89 The Minister submits that, for these reasons, the appeal should be dismissed.
The first ground: the Tribunal’s alleged misconstruction or misapplication of para 9.2 of Direction 90
90 The appellant submits that the Tribunal misconstrued para 9.2(1)(a) of Direction 90 by interpreting the word “health” as if “a medically-certified issue” is required.
91 Before directly addressing this submission, it may be useful to set out some of the principles concerning s 501CA(4) of the Act identified in Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 400 ALR 417 (Plaintiff M1/2021) at [22]-[25]. The provision confers a wide discretionary power on a decision-maker to revoke a decision to cancel a visa held by a non-citizen if satisfied that there is “another reason” why that decision should be revoked. The decision-maker undertakes that assessment by reference to the case made by the representations of the former visa holder. It is improbable that Parliament intended that every statement within the representations should be treated as a mandatory relevant consideration, but the decision-maker cannot ignore the representations. The requisite level of engagement by the decision-maker with the representations must occur within the bounds of rationality and reasonableness. The decision-maker is not required to consider claims that are not clearly articulated or which do not clearly arise on the materials before the decision-maker.
92 Where a decision-maker acting under s 501CA(4) of the Act ignores or overlooks a substantial argument or fact that is clearly articulated or clearly arises on the materials before them, they may fall into jurisdictional error: Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at [13]; Applicant S270/2019 v Minister for Immigration and Border Protection [2020] HCA 32; (2020) 383 ALR 194 at [36]; Plaintiff M1/2021 at [23], [24].
93 A decision-maker is required, by force of s 499(2A) of the Act, to comply with the directions contained in Direction 90. A direction given under s 499(1) of the Act is, “not an exhaustive universe”: Calvey v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 104 at [45]. A direction cannot validly operate to fetter the discretion under s 501 or s 501CA(4): Ruhl v Minister for Immigration and Multicultural Affairs [2001] FCA 648; (2001) 184 ALR 401 at [40]; Aksu v Minister for Immigration and Multicultural Affairs [2001] FCA 514; (2001) 65 ALD 667 at [10] and [32]; Kumar v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 94 at [42].
94 Direction 90 does not purport to limit the considerations to which a decision-maker may have regard in exercising the discretion under s 501CA(4), and does not require that a decision-maker must invariably take into account the considerations it specifies. What is required under para 6 is that a decision-maker take into account the considerations identified in paras 8 and 9, “where relevant” to the decision.
95 The words “where relevant” in para 6 indicate that the duty to take into account the specified considerations is not an invariable one. Whether they are “relevant” in a particular case is a matter of opinion for the individual decision-maker: see DKN20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 285 FCR 1 at [39]; TGWR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 200 at [20] (concerning Direction 79); Minister for Home Affairs v HSKJ (2018) 266 FCR 591 at [52]; Matthews v Minister for Home Affairs [2020] FCAFC 146 at [45]; (concerning Direction 65); SZTMD v Minister for Immigration and Border Protection [2015] FCA 150; (2015) 150 ALD 34 at [20] (concerning Direction 56); Cockrell v Minister for Immigration and Citizenship [2008] FCAFC 160; (2008) 171 FCR 345 at [28] (concerning Direction 21).
96 The legislature is taken to intend that a discretionary power, statutorily conferred, including the power under s 501CA(4)(b)(ii), will be exercised reasonably: cf Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [64]. In the context of ss 499, 501 and 501CA, the application of para 6 of Direction 90 must be understood to be subject to a similar intention. Accordingly, a decision-maker’s opinion as to the relevance of the considerations in paras 8 and 9 must be formed reasonably and rationally having regard to the statutory scheme and the representations and other material before the decision-maker.
97 Paragraph 9.2(1)(a) of Direction 90 requires that the Tribunal, “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, taking into account…the non-citizen’s age and health”. The decision-maker is required to consider, relevantly, whether the representations or other material raise any health condition as an impediment the non-citizen may face in establishing themselves and maintaining basic living standards in their home country. It is self-evident that the issue under this paragraph is not merely whether the non-citizen has a health condition, but whether any health condition poses an impediment of that kind.
98 In the present case, the Tribunal did consider whether the representations and other material raised the appellant’s health as such an impediment. The Tribunal found that the appellant, “does not contend, and there is no medical evidence that he suffers any health issues”.
99 The appellant’s submission is that in this passage the Tribunal misconstrued para 9.2(1)(a) by interpreting the word “health” as if there must be “a medically-certified issue”.
100 The word “health” in the phrase “age and health” in para 9.2(1)(a) is used according to its ordinary meaning. In Holloway, Colvin J explained at [12] that, “the word health would ordinarily be understood to mean any aspect of a person’s physical wellbeing”. We would add that the word is also capable of encompassing a person’s mental wellbeing. Where it is reasonably open to determine that a condition falls within that expression, the question as to whether it does or does not is one of fact for the decision-maker.
101 It must be accepted that nothing in para 9.2(1)(a) requires that there must be medical certification in order for a non-citizen’s “health” to be taken into account under that paragraph. Of course, medical certification may more readily allow a decision-maker to be satisfied that the non-citizen suffers from any claimed health condition and that the condition may be an impediment to the person establishing themselves and maintaining basic living standards if removed to their home country, but it is not an essential requirement.
102 In this case, the Tribunal did no more than indicate that no health condition was asserted by the appellant and neither was any health condition evident in the medical records before the Tribunal. Accordingly, there was no health condition to take into account in considering any impediments the appellant may face in establishing himself and maintaining basic living standards if removed to the Solomon Islands. Contrary to the appellant’s submission, there is nothing to indicate that the Tribunal construed para 9.2(1)(a) of Direction 90 as if a health condition has to be medically-certified in order for that paragraph to apply.
103 The appellant’s next submission concerns the Tribunal’s alleged misapplication of para 9.2(1)(a) of Direction 90. The appellant’s argument is, in substance, that the Tribunal erred by overlooking his health condition of alcohol dependency when it came to consider the extent of any impediments he may face if removed to the Solomon Islands, despite having found that he had such a condition (and used that condition against him) when considering risk to the community.
104 The appellant contends that it is unnecessary to demonstrate that he clearly articulated a condition of alcohol dependency before the Tribunal, or that such a condition clearly arose from the materials before the Tribunal, in circumstances where, so he argues, the Tribunal made an earlier finding that he was alcohol dependent. The appellant has not attempted to explain why the Tribunal’s failure to address a factor that was not articulated and did not clearly arise from the material involves jurisdictional error.
105 In any event, for the reasons that follow, the fundamental factual premise of the argument, namely that the Tribunal found that the appellant had a condition of alcohol dependency, has not been made out.
106 The Tribunal referred to the evidence concerning the appellant’s consumption of alcohol and the role it played in his offending, including the following:
• the appellant stated that he and his former partner “had troubles” for some years especially when alcohol was involved, and he was willing to do more to avoid future abuse of alcohol;
• he acknowledged he had reacted very badly and dangerously in a situation when he and his former partner were under the influence of alcohol;
• he had completed an “Early Recovery Substance Use Program”: there had been no discussion about whether he should cease drinking, but he had been encouraged to stay away from alcohol;
• he said he had continued drinking after he had completed the program, drinking about twice a month before he was imprisoned;
• a medical assessment done when the appellant entered immigration detention recorded, “Social alcohol use, did not elaborate, does not sound significant amounts”;
• a further medical assessment stated, “client denied past Hx [history] of Drug and Alcohol…Client described a Hx of abuse from his female partner in the context of her alcohol misuse and described behavioural violence”;
• during an incident on 11 December 2018, which led to a Domestic Violence Order being made, he was heavily intoxicated;
• he admitted he was intoxicated and angry at the time of the October 2019 offences;
• he admitted he became aggressive when intoxicated;
• he said if he is returned to the Australian community he might drink occasionally, but not like he had done before;
• a police officer’s bail affidavit described the appellant as, “a recreational drug user and has a high dependency to alcohol which he abuses on a daily basis”.
107 The Tribunal’s consideration of protection of the Australian community under para 8(1) of Direction 90 required the Tribunal to assess the likelihood of the appellant engaging in further criminal or other serious conduct. In that context, the Tribunal noted that the appellant had continued drinking after completing a drug and alcohol course, and had foreshadowed an intention to continue to drink if he is released back into the community. The Tribunal went on to find:
166. The risk of further family violence appears to hinge very much on his ability to manage his alcohol consumption, and the evidence before the Tribunal is not sufficient to allow it to find that there is a real prospect that he is able to do so.
…
169. The Tribunal considers there to be a very real risk that if the Applicant continues to consume alcohol - which appears likely - he will commit further offences or other serious conduct in the future.
108 In addressing the primary consideration of family violence, the Tribunal found that although the appellant had undertaken some rehabilitation courses, the benefit of those courses had not been tested in circumstances where he is intoxicated. The Tribunal found:
177. There is not sufficient evidence before the Tribunal to persuade it that the Applicant has adequately addressed his alcohol issues, which appear to be the root of his problem and a major contributing factor to his domestic violence offending.
109 Contrary to the appellant’s submission, the Tribunal made no finding that the appellant had any condition of alcohol dependency. The Tribunal found no more than that there was “a real prospect” of the appellant not being able to “manage his alcohol consumption” in the future. In the context of the Tribunal’s discussion of the appellant’s aggressive behaviour when intoxicated, the Tribunal’s finding was not that the appellant was dependent on alcohol, but that he was unwilling to cease drinking and there was a risk he would drink to excess and then engage in violent behaviour. That finding was consistent with the appellant’s evidence that, despite having been encouraged to stay away from alcohol during his drug and alcohol course, he had continued drinking twice a month before he was imprisoned; his admission that he became aggressive when intoxicated; and his evidence that if returned to the Australian community he might continue to drink occasionally. The Tribunal found there to be a very real risk that if the appellant “continues to consume alcohol”, he would commit further offences in the future. The Tribunal’s finding concerning the risk of the appellant not being able to “manage his alcohol consumption” was not concerned with any inability to refrain from drinking, but his unwillingness to do so and his propensity for violent behaviour when he chose to drink.
110 Accordingly, the appellant’s submission that the Tribunal made a finding that he was alcohol dependent in the course of considering his risk of reoffending under para 8 of Direction 90 cannot be accepted.
111 The appellant makes an alternative submission that the material before the Tribunal clearly raised an issue of whether he had an alcohol dependency that might provide an impediment to establishing himself and maintaining basic living standards in the Solomon Islands, and the Tribunal erred in overlooking that issue.
112 The appellant relies on Holloway, where Colvin J held at [12]:
Within ordinary parlance, a person’s status as having a history of substance abuse, especially where there was evidence from which it may be concluded that there was a real risk of relapse into misuse of substances to such an extent that it would be an impediment to a person being able to establish and maintain basic living standards, is aspect of that person’s overall health.
113 That proposition may be accepted as generally true, but whether evidence of a history of substance abuse clearly raises an issue as to whether a person has a health condition and whether it may pose an impediment to their ability to establish and maintain basic living standards is very much a factual question which depends upon the content of the material before the decision-maker. The answer may turn on matters including any information about the nature and extent of the “substance abuse” problem, whether it presently exists and if not, the risk of relapse.
114 The appellant relies on LRMM, where Logan J found that the Tribunal had forgotten it was necessary to separately advert to the applicant’s health condition of alcohol dependency disorder when addressing the requirements of para 14.5(1)(a) of Direction 79 (the equivalent of para 9.2(1)(a) of Direction 90). The applicant’s solicitors had placed before the Tribunal a medical report diagnosing the applicant with alcohol dependency disorder. In that case, an issue clearly arose on the material as to whether the applicant would face any impediments in establishing himself and maintaining basic living standards in his home country. The present case is not comparable.
115 In the present case, a police officer had asserted in October 2019 in a bail affidavit that the appellant had a, “high dependency to alcohol which he abuses on a daily basis”. However, the appellant’s own evidence was that his alcohol usage since December 2019 had been infrequent. His evidence was that he drank only about twice per month after December 2019, had not consumed any alcohol since his incarceration in December 2020 and had completed alcohol rehabilitation courses associated with his alcohol issues. In addition, he did not contend he had any health issues and medical records described him as a “fit and healthy young man”. The evidence before the Tribunal indicated that the appellant had maintained steady manual employment from at least 2016 until his incarceration.
116 It cannot be accepted that the material clearly raised any issue of alcohol dependency at the time of the Tribunal’s decision in December 2021. Nor can it be accepted that the material clearly raised any issue of relapse into alcohol dependency, or whether any such relapse might provide an impediment to the appellant establishing himself and maintaining basic living standards in the Solomon Islands. The appellant’s submission that the Tribunal overlooked a clearly raised issue of that kind clearly arising from the material must be rejected.
117 The appellant’s first ground of appeal asserting that the primary judge erred in failing to find that the decision of the Tribunal was vitiated by error in its consideration of para 9.2 of Direction 90 must be rejected. It is unnecessary to consider the appellant’s fourth ground, which contends that the primary judge erred in holding that the asserted error was immaterial.
The second ground: whether the primary judge erred in construing para 9.3(1) of Direction 90
The third ground: whether the primary judge erred in failing to find that the Tribunal denied the appellant procedural fairness
118 The appellant’s second and third grounds of appeal are related. The third ground asserts that the primary judge erred in failing to find that the Tribunal denied the appellant procedural fairness. On the way to rejecting that ground, her Honour construed para 9.3(1) of Direction 90 such that it does not permit a decision-maker to consider the impact on a victim of an offender being removed from Australia. The second ground of appeal challenges that construction.
119 Paragraph 9.3(1) of Direction 90 deals with, “Impact on victims”, and requires that decision-makers:
…must consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
120 The latter part of para 9.3(1), commencing with the word “where”, indicates that the paragraph only has application where the non-citizen, “has been afforded procedural fairness”. The purpose of that stipulation is not entirely clear given that Direction 90 can have no application to decisions made under s 501 of the Act to which the rules of natural justice do not apply (ss 501(3) and (3A)). In any event, there are obligations of procedural fairness imposed on the Minister and on the Tribunal in respect of a decision under s 501CA(4): see s 501CA(3); Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 96 ALJR 737 (Nathanson) at [22]. Therefore, para 9.3(1) is applicable to such a decision.
121 In its consideration of para 9.3(1), the Tribunal accepted that, “relevant evidence before the Tribunal comes from the victim of the Applicant’s most serious offending, W…”. The Tribunal noted that Ms W had given positive evidence regarding the appellant, particularly as to his role as a father, a good person, and an important role model, and requested for the sake mainly of her elder daughter that the appellant be allowed to remain in Australia.
122 The Tribunal found that W’s evidence to be “compromised” and “tailored” because of her close relationship with members of the appellant’s family and gave her evidence “little weight”. It may be observed that, despite the Tribunal treating Ms W’s evidence as relevant to para 9.3(1), it made no reference to her evidence about the impact on her of the appellant being removed from Australia. Ms W had in fact given evidence that if the appellant were removed from Australia, she would suffer adverse financial and emotional impacts. In respect of the latter, she described the emotional consequences for her children resulting from separation from their father as “quite heartbreaking to watch”, “heartbreaking to witness” and “painful to witness”. The Tribunal’s failure to advert to Ms W’s evidence about the impacts upon her makes it unclear whether the Tribunal regarded that aspect of her evidence as “compromised” and “tailored”.
123 The appellant submits that the Tribunal’s finding was effectively that Ms W’s evidence was not credible. He argues that such a finding was not obviously open on the known material and that the Tribunal’s failure to advise him that it was minded to make such a finding denied him procedural fairness.
124 The primary judge’s consideration of the ground of denial of procedural fairness commenced by observing that the previous iteration of para 9.3(1) of Direction 90 was para 14.4(1) of Direction 79, which required that, where relevant, a decision-maker must take into account:
Impact of a decision not to revoke on members of the Australian community, including victims of the non-citizen’s criminal behaviour…
(Emphasis added.)
125 The primary judge observed that in CGX20 (No 2), Colvin J at [19] considered there to be an “obvious error in the formulation of cl 14.4”. His Honour at [20] accepted the correctness of the Tribunal’s construction of the paragraph as, “meant to direct the decision maker to consideration of the impact of revoking the cancellation rather than not revoking the cancelation”. That construction was upheld on appeal in CGX20 FC at [23].
126 The primary judge also observed that in DKN20, the appellant had argued that the Tribunal had failed, under para 14.4 of Direction 79, to consider evidence of the impact of a non-revocation decision on Ms J, a victim of one of the appellant’s offences. Ms J had urged that the appellant not be deported because of the effect it would have on their daughter. The Full Court, adopting Colvin J’s reasoning in CGX20 (No 2), held at [37] that there was no scope under para 14.4 for the Tribunal to consider the impact on a victim of a decision not to revoke the cancellation of a visa.
127 The primary judge observed that the anomaly in para 14.4 of Direction 79 does not arise under Direction 90. Her Honour went to hold that:
It is clear from the recasting of cl 14.4 by s 9.3(1) of Direction 90 that it is the impact on a victim of the perpetrator remaining in Australia which is the matter to be considered, where relevant.
(Emphasis in original.)
128 The primary judge considered that no evidence of the impact on Ms W “as a victim of the family violence” committed by the appellant had been raised as a relevant issue. Her Honour noted that none of the evidence recited by the Tribunal raised such an issue. Her Honour considered that it was therefore “strictly unnecessary” for the Tribunal to consider the impact on Ms W “as a victim”, and that it did not do so in “any real sense”.
129 The primary judge concluded that in light of the absence of any evidence of the impact on Ms W “as a victim”, the concerns expressed by the Tribunal as to whether W’s evidence has been “compromised” or “tailored” must be construed as no more than concerns that there was no evidence given by Ms W, “about the impact on her as a victim of the family violence”. Her Honour considered that the Tribunal’s concerns could not be construed as an adverse finding of W’s credibility in relation to the evidence that she did adduce. Her Honour held that it could not be concluded that the Tribunal’s expression of its concerns about the absence of evidence of the impact on Ms W “as a victim” meant that the appellant was denied procedural fairness.
130 The primary judge noted that in the application for judicial review, the appellant had read an affidavit of Ms W deposing to what she would have said had she been put on notice that the Tribunal considered her evidence “compromised” or “tailored”. Her Honour considered that nothing in Ms W’s affidavit deposed to any impact on her “as a victim of family violence”. The impact of the appellant’s deportation on Ms W was described in the context of her losing a co-parent and the effect of his absence on her as a single mother and having to endure the emotional impact on her daughters of their father’s absence. Her Honour stated that:
As has already been explained, s 9.3(1) is not apposite to these impacts – the impact on victims is only to be considered in circumstances where the offender is to be permitted to remain in Australia (CGX20 at [18]-[20]; DKN20 at [36]).
131 The primary judge held that, consequently, any procedural unfairness that may have occurred had not resulted in material error, nor any practical injustice.
132 The primary judge’s reasoning had three elements. First, her Honour held that, on its proper construction, para 9.3(1) only allows a decision-maker to consider the impact on a victim of the perpetrator remaining in Australia, and does not allow a decision-maker to consider the impact on a victim of the perpetrator being removed from Australia. Secondly, her Honour held that para 9.3(1) applies only to the impact on the victim “as a victim”, rather than, for example, the adverse impact on the victim of becoming a single parent, and there was no material before the Tribunal concerning any impact on Ms W “as a victim”. Thirdly, any procedural unfairness was immaterial because the evidence Ms W might have given was irrelevant under para 9.3(1) in light of its proper construction. Her Honour held that it was, accordingly, unnecessary for the Tribunal to have considered the impact on Ms W of the appellant’s removal from Australia and there could be no relevant procedural unfairness stemming from the Tribunal’s consideration of Ms W’s evidence.
133 We are respectfully unable to agree with the primary judge’s construction of para 9.3(1) as applying only to the impact on a victim of the perpetrator remaining in Australia, and excluding consideration by a decision-maker of the impact upon a victim of an offender being removed from Australia. The narrowness of that construction is inconsistent with the broad language of the paragraph and with the wider context of Direction 90 and the statutory scheme.
134 Paragraph 9.3(1) requires that decision-makers must, “consider the impact of the section 501 or 501CA decision on members of the Australian community”. The members of the Australian community are explained to include, but are not confined to, “victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims”. The paragraph does not in its terms confine the “impact” that must be considered to consequences for members of the Australian community of the perpetrator remaining in Australia, and extends to consequences for members of the Australian community of the perpetrator being removed from Australia. The word “impact” is not limited to beneficial impacts for members of the Australian community of removal of the offender from Australia, but is apt to include adverse impacts upon them of such removal. In addition, the paragraph requires that what must be considered is, “the impact of the section…501CA decision” without distinguishing between a decision to revoke the s 501(3A) cancellation decision and a decision not to revoke. Therefore, impacts on members of the Australian community caused by a decision that will result in the offender either remaining in Australia or being removed from Australia fall to be considered under para 9.3(1).
135 The primary judge’s construction of para 9.3(1) must mean either that impact on members of the Australian community of removal of an offender from Australia cannot be considered by a decision-maker; or that impact on members of the Australian community other than victims can be considered. Neither of those views is supported by the language of para 9.3(1), nor by the broader context.
136 In a given case, some members of the Australian community may be adversely affected by a decision allowing an offender to remain in Australia, while others may be adversely affected by the offender being removed. There is no obvious reason why the Minister, in making the direction contained in para 9.3(1), would intend that only the former, and not the latter, be considered under para 9.3(1).
137 Direction 90 introduced a primary consideration of, “whether the conduct engaged in constituted family violence”. Paragraph 8.2(1) states that the government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia, while 8.2(3) sets out a number of factors relevant to consideration of the seriousness of the family violence engaged in. By the inclusion of para 9.3(1), the Minister must be understood to have recognised that an offence resulting in cancellation of a visa under s 501(3A) of the Act may well involve family violence, and that victim will often be an offender’s spouse or partner. The Minister can also be understood to have recognised that members of the Australian community may be adversely impacted when an offender is removed from Australia, including in situations of family violence. For example, para 8.3 expressly accepts that it may be in the best interests of an offender’s minor children for the offender to remain in Australia. A victim of a crime, including a victim of family violence, may also consider their own best interests to be served by the offender remaining in Australia, including for emotional or financial reasons. It would be anomalous to treat para 9.3(1) as though it requires a decision-maker to disregard the opinion of a victim that they would be adversely affected by the removal of an offender from Australia.
138 It may be noted that para 9.4.1(1) requires decision-makers to have regard, relevantly, to, “any impact of the decision on the non-citizen’s immediate family members in Australia…”. The primary judge’s construction of para 9.3(1) would mean that if a spouse or partner of the offender is the victim of family violence offences but remained an immediate family member of the offender, the impact upon that victim of the offender being removed from Australia could still be taken into account under para 9.4. On the other hand, Direction 90 would not require such impacts on a victim who is no longer the offender’s partner or spouse to be taken into account. That anomalous position tells against the construction favoured by the primary judge.
139 As has been observed, a direction made under s 499(1) of the Act cannot validly operate to fetter the broad discretion arising under s 501CA(4). Direction 90, while it stipulates factors that a decision-maker must or should take into account where relevant, does not in fact purport to restrict the range of factors that the decision-maker may take into account. Even if the primary judge’s construction of para 9.3(1) as requiring the decision-maker to only consider impact on victims of the offender being permitted to remain in Australia were correct, it would be open to the decision-maker to take into account the impact upon a victim of an offender being removed from Australia outside Direction 90. Indeed, where such impact is clearly raised in the representations or other material, it may be required to be taken into account. The purpose of Direction 90 is stated in its Preamble as to “guide decision-makers” in exercising powers under s 501CA(4). The purpose of providing guidance tells against any suggestion that para 9.3(1) was deliberately drafted so as to prevent any impact on a victim of an offender being removed from Australia being taken into account, only for that impact to be considered in the exercise of the general discretion.
140 The primary judge’s analysis, in our respectful submission, focuses excessively upon the language used in para 14.4 of Direction 79 and the way that language had been interpreted in decisions of this Court. It is the language of para 9.3(1) of Direction 90 in its context that must be construed. Para 9.3(1) cannot be regarded as a mere “recasting” of para 14.4: the language and context of the respective provisions is substantially different. If the Minister intended that para 9.3(1) be understood as referring only to, “the impact on a victim of the perpetrator remaining in Australia”, then that is likely to have been directly indicated. Instead, the broad language of the provision tells against such a construction.
141 In our respectful opinion, contrary to the construction of the primary judge, para 9.3(1) of Direction 90 does not limit the decision-maker to only taking into account the impact on a victim of the offender being permitted to remain in Australia. The paragraph also allows the decision-maker to take into account impact on a victim, including adverse impacts, of the offender being removed from Australia.
142 The primary judge also considered that only impacts on a victim “as a victim” may be taken into account under para 9.3(1). Her Honour seems to have meant that only impacts on the victim in their condition or status as a victim may be considered. That would seem to include distress caused to a victim as a result of the offender being allowed to remain in Australia, but exclude, for example, impacts on a victim as a mother distressed by the emotional consequences for her children that would result from the removal of their father from Australia.
143 Such a construction is inconsistent with the language of para 9.3(1). That language merely refers to “victims”, not to “victims as victims”. It does not draw any distinction between beneficial or adverse impacts upon a victim from whatever decision is made. It does not distinguish between direct and indirect impacts. The language of the provision does not exclude consideration of impacts on a victim, as, for example, a spouse and mother who would be caused emotional distress or financial loss by the offender being removed from Australia.
144 Ms W’s statutory declaration and her oral evidence clearly indicated that she would be caused emotional distress by the removal of the appellant from Australia. She described the emotional impact upon her of her children being separated from their father as “heartbreaking”. Her evidence was also that removal of the appellant would cause her financial difficulty as a single parent. These were factors that were open for the Tribunal to take into account under para 9.3(1). Indeed, they were required to be taken into account since they were substantial matters that clearly arose on the material before the Tribunal and could not reasonably have been regarded by the Tribunal as irrelevant.
145 The Tribunal’s reasons did not mention any of Ms W’s evidence indicating she would be adversely impacted by the removal of the appellant from Australia. One of two inferences may be drawn: either the Tribunal overlooked that evidence; or it took that evidence into account but decided to accord it “little weight” along with other aspects of her evidence. In our view, the latter inference is the appropriate one since the Tribunal expressly recognised in respect of para 9.3(1) that, “the only relevant evidence before the Tribunal comes from the victim of the Applicant’s most serious offending, W”. The evidence of Ms W relevant to para 9.3(1) concerned the impacts of the appellant’s removal from Australia upon her. Accordingly, it seems probable that the Tribunal did take into account her evidence of such impacts even though it omitted any specific reference to that evidence.
146 It was accepted by the Full Court in Nathanson v Minister for Home Affairs [2020] FCAFC 172; (2020) 281 FCR 23 at [46] and [125] that the Tribunal is required to provide procedural fairness in the conduct of its review of a decision under s 501CA(4) of the Act. In the appeal, the High Court proceeded on the basis that the Tribunal owed such obligations.
147 Procedural fairness requires that each party be given a reasonable opportunity to present their case: Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at [40] (Gaudron and Gummow JJ); Sullivan v Department of Transport (1978) 20 ALR 323 at 343 (Deane J). What will constitute a reasonable opportunity depends upon the whole of the circumstances, including the nature of the jurisdiction exercised and the statutory provisions governing its exercise: R v Commonwealth Conciliation and Arbitration Commission; Ex parte The Angliss Group (1969) 122 CLR 546 at 552–553; SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 (SZBEL) at [26].
148 The appellant places particular reliance on SZBEL. In that case, in the course of rejecting the appellant’s application for a protection visa, the Minister’s delegate had accepted the accuracy of his account of two particular events. The Refugee Review Tribunal had not challenged the appellant’s account of those events in the course of the conduct of the review, but ultimately found that account to be implausible.
149 The High Court at [29] cited the following passage from Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 591-592 with approval:
Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question.
(Emphasis added by High Court.)
150 The High Court held:
35 The Tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the Tribunal. But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are “the issues arising in relation to the decision under review”. That is why the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision. And unless some other additional issues are identified by the Tribunal (as they may be), it would ordinarily follow that, on review by the Tribunal, the issues arising in relation to the decision under review would be those which the original decision-maker identified as determinative against the applicant.
…
47 …[T]here may well be cases, perhaps many cases, where either the delegate’s decision, or the Tribunal’s statements or questions during a hearing, sufficiently indicate to an applicant that everything he or she says in support of the application is in issue. That indication may be given in many ways. It is not necessary (and often would be inappropriate) for the Tribunal to put to an applicant, in so many words, that he or she is lying, that he or she may not be accepted as a witness of truth, or that he or she may be thought to be embellishing the account that is given of certain events. The proceedings are not adversarial and the Tribunal is not, and is not to adopt the position of, a contradictor. But where, as here, there are specific aspects of an applicant’s account, that the Tribunal considers may be important to the decision and may be open to doubt, the Tribunal must at least ask the applicant to expand upon those aspects of the account and ask the applicant to explain why the account should be accepted.
151 The principles expressed by the High Court are equally applicable to a finding by the Tribunal in the conduct of a review of a decision under s 501CA(4) of the Act that the evidence of a witness giving critical evidence is not credible or embellished.
152 In the present case, the finding by the Tribunal that Ms W’s evidence had been “compromised” or “tailored” amounted to a finding that her evidence concerning the impacts that would be caused to her by the appellant’s removal from Australia was not credible. The delegate had not made any finding that the material contained in her statutory declaration was not credible. When Ms W gave oral evidence before the Tribunal, neither the Minister nor the Tribunal made any suggestion that her closeness to the appellant’s family had caused her to “tailor” her evidence to support the appellant’s case or that her evidence was in doubt. In these circumstances, the Tribunal’s conclusion that Ms W’s evidence was not credible was not obviously open.
153 Ms W’s evidence can be described as “critical” or “dispositive” in the sense that, if accepted, it may have been of decisive importance. The appellant was entitled to proceed on the basis that Ms W’s credibility was not in issue. Procedural fairness required the Tribunal draw to the attention of Ms W or the appellant that it had concerns about the credibility of her evidence.
154 In Nathanson, the Federal Court had accepted at first instance and on appeal that the Tribunal had denied the appellant procedural fairness by denying him an opportunity to address certain allegations of domestic violence, but held that the error was immaterial. In the High Court, the plurality explained at [33] that there will generally be a realistic possibility that a decision-making process could have resulted in a different outcome if a party was denied an opportunity to present evidence or make submissions on an issue that required consideration. The plurality accepted it to be extremely unlikely that the appellant could have said or done anything to avoid findings that the alleged incidents of domestic violence did occur. However, their Honours considered that, in the context of the decision being made by weighing a range of relevant factors under Direction 79, additional evidence and submissions directed to mitigating the significance of the evidence of domestic violence could realistically have affected the Tribunal’s evaluative fact finding concerning the nature and seriousness of the appellant’s conduct and, ultimately, its decision. There was no need for the appellant to establish the nature of any additional evidence or submissions that might have been presented at the Tribunal hearing, had that hearing been procedurally fair.
155 In this case, Ms W has deposed that if her attention had been drawn to the Tribunal’s concerns about the credibility of her evidence, she would have explained that she “was not influenced by” the appellant’s family and “would not tailor her evidence”. There is a realistic possibility that the Tribunal might have accepted that explanation, might have given greater weight to her evidence and, ultimately, that the outcome may have been different. Accordingly, the denial of procedural fairness was material.
156 The primary judge erred in failing to find that the Tribunal denied the appellant procedural fairness.
157 The appeal will be allowed. The orders of the primary judge and the decision of the Tribunal will be a set aside. The matter will be remitted to the Tribunal to decide according to law.
158 The Minister will be ordered to pay the appellant’s costs of the appeal and the proceeding before the primary judge.
I certify that the preceding one hundred and fifty-eight (158) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Logan, Rangiah and Goodman. |
Associate:
