Federal Court of Australia

King v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 152

ORDERS

THE COURT ORDERS THAT:

1.    The name of the first respondent be amended to Minister for Immigration, Citizenship and Multicultural Affairs.

2.    The appellant have leave to amend his notice of appeal in terms of the amended notice of appeal filed on 19 April 2023 and he also has leave to raise the grounds of appeal pleaded in the amended notice.

3.    The appeal be dismissed.

4.    The appellant pay the first respondent’s cost 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:

Introduction

1    Mr King (the appellant) is a citizen of New Zealand. He has lived in Australia since 2008. He arrived when he was 27 years of age and is now 43. Accordingly, he has lived most of his adult life in Australia and, as one might expect, has extensive connections to the Australian community. These include minor children he has had with his partner and adult children from a previous relationship. The appellant is of Maori and his partner is of Indigenous Australian heritage. Therefore, the appellant’s minor children are of both Indigenous Australian and Maori heritage. As will become apparent, education of the appellant’s minor children in Maori culture is a matter of some significance in the appeal.

2    In November 2020 the appellant was convicted of a number of offences including two counts of unlawful assault causing bodily harm in circumstances of aggravation. The victim was the appellant’s partner. The appellant was sentenced to a total effective sentence of 18 months’ imprisonment for those offences. As a consequence, his visa which entitled him to reside in Australia was mandatorily cancelled under s 501(3A) of the Migration Act 1958 (Cth). Then, having no right to remain in Australia, the appellant was taken into immigration detention upon completing his custodial sentence.

3    Although at the time of hearing of the appeal the appellant remained in immigration detention, based on subsequent communication with the Court, he may no longer be in detention and may have been voluntarily removed to New Zealand. However, if so, that circumstance has no bearing on the outcome of this appeal. If the appeal were successful and, ultimately, the cancellation of his visa revoked, the appellant would hold a visa and be entitled to enter and reside in Australia.

4    After cancellation of his visa the appellant requested revocation of the cancellation decision under ss 501CA(3) and 501CA(4) of the Act. In September 2021, a delegate of the Minister made a decision to refuse to revoke the cancellation decision. The delegate, having found that the appellant failed the ‘character test’ was of the view that there was not ‘another reason’ why the original decision to cancel the appellant’s visa should be revoked as referred to in s 501CA(4)(b)(ii).

5    The appellant sought merits review of the delegate’s decision in the Administrative Appeals Tribunal in accordance with a right of review conferred on him under s 500(1)(ba) of the Act. In November 2021, the Tribunal made a decision affirming the delegate’s decision.

6    The appellant then applied to this Court for judicial review of the Tribunal’s decision pursuant to s 476A(1)(b) of the Act. In November 2022, a judge of this Court dismissed the judicial review application.

7    The appellant now appeals from that dismissal. For the reasons set out below, that appeal must be dismissed.

Legislative framework

8    The legislative framework is well-understood and has been the subject of numerous decisions and need not be recited at length: see, for example, the explanation set out in Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 400 ALR 417 at [10]-[15] (although not dealing with a decision of a delegate of the Minister, the summary of the legislative framework is applicable to all decision-makers). For the purposes of this appeal, the following features of the framework are relevant.

9    Section 501(3A) of the Act relevantly provides that the Minister must cancel a visa that has been granted to a person if satisfied that the person has been sentenced to a term of imprisonment of 12 months or more and, therefore, has a substantial criminal record, and that the person is serving a sentence of imprisonment on a full-time basis in a custodial institution.

10    A consequence of the cancellation of a person’s visa is that the person’s right to remain in Australia ends. That person becomes, in the language of the Act, an ‘unlawful non-citizen’ and must be taken into immigration detention and removed from Australia as soon as reasonably practicable: ss 189, 197C, 198.

11    Where a person’s visa has been cancelled under s 501(3A), s 501CA provides a procedure for possible revocation of the cancellation decision. The Minister must give the former visa-holder notice of the revocation and ‘invite the person to make representations to the Minister … about revocation of the original decision’: s 501CA(3). Section 501CA(4) then provides that the Minister may revoke the cancellation decision if the person makes representations in accordance with the invitation to do so and the Minister is satisfied that the person passes the character test or ‘that there is another reason why the original decision should be revoked’ s 501CA(4).

12    Decisions under s 501CA(4) are usually made by a delegate of the Minister. In those circumstances, the former visa-holder has a right to request the Tribunal to review a decision to refuse to revoke a cancellation decision: s 500(1)(ba). Subject to certain procedural modifications, a review under s 500(1)(ba) is undertaken by the Tribunal in its general division.

13    In deciding whether there is ‘another reason’ why the mandatory cancellation of a former visa-holder’s visa should be revoked, the delegate of the Minister and the Tribunal are bound, by s 499(2A), to comply with any direction given by the Minister under s 499(1) of the Act.

14    In this case, the Tribunal was bound to comply with Direction No. 90: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA which is dated 8 March 2021 and commenced from 15 April 2021.

15    Section 5 of Part 1 of Direction 90 contains a preamble that sets out the objectives of the direction. Amongst other things, para 5.1 indicates that the purpose of the direction is to guide decision-makers in performing functions or exercising powers under, relevantly, s 501CA of the Act. Paragraph 5.2 sets out principles that provide the framework within which decision-makers should approach their task of deciding, relevantly, whether to revoke a mandatory cancellation under s 501CA. The factors (to the extent relevant in a particular case) that must be considered in making that decision are set out in Part 2 of the direction.

16    Section 6 of Part 2 of Direction 90 provides that, informed by the principles in para 5.2, a decision-maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision. Section 7 provides guidance on the appropriate weight to be given to information and evidence from independent and authoritative sources and provides that, generally, primary considerations should be given greater weight than other considerations and that one or more primary considerations may outweigh other primary considerations.

17    Section 8 of Part 2 of Direction 90 sets out the primary considerations. These are: (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. Paragraphs 8.1 – 8.4 describe the primary considerations in detail and provide guidance to decision-makers as to the manner in which each of those considerations is to be taken into account. Relevant to this appeal is para 8.3 that addresses the best interests of minor children in Australia affected by the decision.

18    Section 9 of Part 2 of Direction 90 sets out the other considerations. These are: (1) international non-refoulement obligations; (2) extent of impediments if removed; (3) impact on victims; and (4) links to the Australian community. Paragraphs 9.1 – 9.4 describe the other considerations in detail and provide guidance on the manner in which each is to be taken into account. Relevant to this appeal is para 9.2 that addresses the extent of impediments if removed.

The Tribunal’s decision

19    The Tribunal’s reasons for decision (T) began with it setting out the nature of the review it was to undertake and the background to the appellant’s application for review (T [1]-[14]). The Tribunal then set out and summarised the hearing and materials that were before the Tribunal: (T [15]-[20]) and the legislative framework of the Act that was relevant to the review (T [21]-[35]).

20    The Tribunal summarised the appellant’s criminal history which involved offences comprised of aggravated assault, property offences, drug related offences, and offences involving breaches of bail conditions, police orders and community-based orders and concluded that the appellant failed to pass the character test as he had a ‘substantial criminal record’ as defined in ss 501(6) and 501(7) of the Act (T [36]-[62]). That the appellant fails to pass the character test is not controversial.

21    The Tribunal then turned to consider if there was another reason for revoking the cancellation of the appellant’s visa and summarised his representations in support of revocation and the Minister’s case against revocation (T [63]-[68]). The Tribunal correctly summarised the appellant’s representations (T [66]) to the effect that it was in the best interests of his Australian citizen minor children that the cancellation be revoked as follows:

(i)    He has a close relationship with his daughters, including seeing them every week while in prison and detention;

(ii)    If he is removed his daughters will be deprived of having a meaningful relationship with him;

(iii)    His children are very young, and it is difficult to communicate with them meaningfully without in-person contact;

(iv)    He provided his daughters with a connection to their Maori culture which would be impacted if he were not in Australia;

(v)    He is taking steps and undertaking voluntary courses to improve his parenting and communication skills; and

(vi)    His children and partner would not relocate with him to New Zealand and will not have the financial means to visit him.

22    The Tribunal also correctly summarised the appellant’s representations to the effect that there were impediments to his removal from Australia that weighed in favour of revocation as follows (T [66]):

•    With respect to the impediments to his removal, the Applicant would have a lack of social support given the amount of time he has lived outside New Zealand and the life he has established in Australia. The Applicant has concerns regarding ‘unemployment, homelessness, isolation, negative peers and unhealthy boundaries or environments’ on return to New Zealand. He has a serious heart condition which requires treatment, separation from his family would cause him mental distress and increase his risk of reoffending, and he has no financial backing, assets, or support networks in New Zealand. The Applicant contends that this weighs in favour of revocation.

23    The Tribunal considered each of the primary considerations in turn.

24    The Tribunal considered the protection of the Australian community, including the nature and seriousness of the appellant’s conduct and the risk to the Australian community should the appellant commit further offences or engage in other serious conduct (primary consideration 1) (T [69]-[123]). The Tribunal concluded that the nature and seriousness of the appellant’s offending was very serious (T [85], [95]). The Tribunal considered the likelihood of the appellant reoffending to be in the low to moderate range, but if he were to reoffend there is a risk of significant harm to the Australian community (T [122]). The Tribunal concluded that primary consideration 1 ‘weighs strongly against revocation’ (T [123]).

25    The Tribunal considered family violence committed by the appellant (primary consideration 2) (T [124]-[137]). Due to the nature of the appellant’s offending against his partner, the Tribunal concluded that primary consideration 2 also weighs strongly against revocation (T [136]-[137]).

26    The Tribunal considered the expectations of the Australian community (primary consideration 4) (T [162]-[172]). Again, the Tribunal concluded that primary consideration 4 weighs strongly against revocation (T [172]).

27    The Tribunal also considered the best interests of minor children in Australia (primary consideration 3) (T [138]-[161]).

28    Paragraph 8.3 of Direction 90 is in the following terms:

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

(1)    Decision-makers must make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is, or is not, in the best interests of a child affected by the decision.

(2)    This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to refuse or cancel the visa, or to not revoke the mandatory cancellation of the visa, is expected to be made.

(3)    If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.

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

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

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

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

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

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

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

g)    evidence that the 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 any physical or emotional trauma arising from the non-citizen’s conduct.

29    When dealing with this primary consideration, the Tribunal first identified the two minor children whose interests must be taken into account, namely the appellant’s two daughters, mothered by the appellant’s partner, who the Tribunal accepted were Australian citizens who shared Indigenous Australian/Maori heritage (at T [140]).

30    The Tribunal noted the appellant’s submission that his children would suffer emotional and financial hardship were he removed from Australia, and would be denied a personal relationship with him in circumstances where he had a ‘strong connection to each of his children and that his physical presence in their lives [was] essential to their best interests’ (T [143]). Further, the Minister contended that this consideration should be given less weight, given the appellant’s children had been exposed to family violence perpetrated by the appellant, and because there was a risk that the children could be exposed to further family violence (T [144]).

31    The Tribunal referred to aspects of the appellant’s request for revocation and extracted portions of it as follows (T [145]):

The Applicant’s request for revocation noted:

The relationship I have with each of my children is very loving, caring and family oriented. I have always shown & maintained a high level of understanding & support in their interests & social development. I endeavour to be a positive role model for both my girls. I have worked hard all my life to develop a safe and secure living environment. I strive to meet their educational & social needs along side with their mother & we have always made decisions in their best interest.

He submitted that his removal would have a negative impact on his daughters:

In the event of a negative outcome regarding my visa it would severely deprive my children from having a family setting in their lives. I feel this will have be emotionally & physically disrupt their stability & feel it is paramount that they have both & remain with both parents as they grow. This will ensure the children don’t become confused or vulnerable of unnecessary changes that may disrupt their day to day lives any further.

(Emphasis in original; Footnotes omitted.)

32    The Tribunal referred to the letter provided by the appellant’s current partner and her evidence and that of the appellant’s former partner. The Tribunal referred to the appellant’s partner’s evidence before the Tribunal as to the impact upon her children if the appellant were removed as follows (T [149]):

Ms Jones’ statement and evidence was that the Applicant was ‘the back bone of our family and in the raising of our young daughters’. In her evidence before the Tribunal, when asked what the impact of the Applicant’s removal would be on the children, she said:

Massive, they love their daddy and despite the things he’s done he is an exceptional father, and that’s what I’ve always said and I’ll always say, and it’d be - there’s no words to describe how detrimental that would be for them to lose their dad. It’d be -it makes me want to cry thinking about it actually, to be honest. It would ruin them.

The Tribunal asked if she was concerned about the potential for them to be exposed to family violence again and she said she didn’t think that would happen. She said that she and the Applicant ‘know better’ on how to handle situations and was ‘not concerned that we would expose them to anything’.

(Emphasis in original; Footnotes omitted.)

33    The Tribunal accepted that the appellant had been involved in his children’s lives since they were born, and that he had financially supported his family when he had been working: (T [150]). The Tribunal also found that there remains ‘a strong parental relationship’ and that the children would benefit from the appellant’s parental support until they turn 18 (T [153]). The Tribunal considered the negative effect the appellant’s past conduct (that is, assaulting his partner in front of his children) has had on the children (T [154]). However, the Tribunal acknowledged the absence of evidence of any specific physical or emotional trauma suffered by the children as a result of the appellant’s conduct (T [155]).

34    The Tribunal also considered evidence regarding the daily contact the appellant had had with his daughters during his incarceration and detention by electronic means which could be maintained if he were removed to New Zealand. However, the Tribunal accepted that such contact is no substitute for personal contact, particularly with respect to aspects of their daily care and that they already have suffered an extended separation from their father (T [157]).

35    Relevantly for the purpose of this appeal the Tribunal considered what the appellant’s involvement in his children’s lives would be if he remained in Australia. The Tribunal said (T [158]):

The Tribunal accepts that if the Applicant were to remain in Australia, he would be involved in the children’s lives by co-parenting them with Ms Jones, as he has in the past, and supporting the [children] emotionally, physically, and financially. However, there is no reason on the evidence before the Tribunal, that the Applicant could not continue to provide financial support were he removed to New Zealand, once he has established himself and obtained employment. The Tribunal notes that the children also have the support of extended family members, including their maternal family members who are in Australia, and Ms Paekau and her adult children.

The Tribunal next considered the unlikelihood of the appellant’s partner and the children moving to New Zealand and obstacles for them to be able to visit New Zealand (T [159]).

36    The Tribunal then considered the children’s dual indigenous heritage (T [160]).

Further, although Ms Jones did not raise the issue of her Indigenous background, the Tribunal accepts that her connection to country and culture would mean it would be unlikely she would choose to relocate herself or her daughters, who would then be unable to grow up in the context of their cultural heritage. However, the Tribunal notes they are already being raised at a distance from their Maori heritage. In this regard, the Applicant told the Tribunal, in response to a question about the children’s cultural upbringing, that his presence was needed in Australia to ensure their education in their Maori culture. While the Tribunal accepts the absence of their father may make it more difficult for the children to explore their Maori heritage, the Tribunal considers that it is the decision to raise them in Australia which represents their most significant separation from that culture and does not accept that factor significantly increases their best interests.

The appellant alleges that this paragraph of the Tribunal’s reasons reveals the jurisdictional error that is the subject of ground 1 of the amended notice of appeal.

37    Finally, having regard to the evidence concerning the appellant’s children, the Tribunal accepted that the appellant had a close relationship with his children, his children have a desire to maintain a relationship with him and that this is supported by his partner. As such, the Tribunal considered that the best interests of the appellant’s children weigh strongly in favour of the cancellation decision being revoked, though it considered slightly less weight should be afforded to this primary consideration given there is a risk that the children may be exposed to further family violence should the appellant resume an intimate relationship with his partner and the mother of those children (T [161]).

38    The Tribunal also considered each of the other considerations (T [173]-[209]). The Tribunal was satisfied that international non-refoulement was not relevant (T [178]). The Tribunal considered that the impact on victims was either neutral or weighed moderately in favour of revocation as the main victim was his partner and non-revocation would have a negative impact on her and her family (T [195]-[196]). The Tribunal considered that links to the Australian community weighed heavily in favour of revocation (T [209]). As to impediments if removed the Tribunal concluded that it weighs ‘only slightly in favour of revocation’ (T [189]). Paragraph 9.2 of Direction 90 is in the following terms:

9.2    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.

39    With respect to this other consideration, one factor that the Tribunal identified and considered was the appellant’s heart conditions. The Tribunal accepted that the appellant had a history of heart issues which would likely require ongoing management, but ultimately found that there was no evidence to suggest that he would not have access to medication and medical care in New Zealand. The Tribunal’s consideration of this issue was as follows (T [184]):

While there was no medical evidence before the Tribunal, the Applicant claimed to have suffered serious heart failure in 2019 and the evidence generally supported that contention. The Sentencing Magistrate’s comments make reference to this condition and to the fact it is managed with medication in prison. The Applicant provided evidence of these to the delegate. The Tribunal accepts that the Applicant has a history of heart failure and given his relatively young age, that condition is likely to require ongoing management. However, the condition is currently managed in a custodial context and there is no evidence to suggest the Applicant would not have access to medications and appropriate medical care to manage this condition on return to New Zealand. Further, having regard to the Applicant’s stated employment plans in Australia, including working as a scaffolder, there is no suggestion that the condition would prevent the Applicant working in New Zealand, including in a job requiring physical exertion, such as scaffolding.

(Footnotes omitted.)

The appellant alleges that this paragraph of the Tribunal’s reasons reveals the jurisdictional errors the subject of ground 2 of the amended notice of appeal.

40    The Tribunal found that there was nothing to suggest that the appellant would be impeded in establishing himself and maintaining basic standards of living in New Zealand (T [185]). However, the Tribunal accepted that the appellant would likely face emotional hardship if he was returned to New Zealand, particularly because he will be separated from his children (T [187]). Overall, as already mentioned, the Tribunal found that this consideration only weighed slightly in favour of revoking the cancellation decision (T [189]).

41    Last, the Tribunal set out its conclusions on the various factors to which it had given consideration and concluded that having regard to all of the primary considerations, and the other relevant considerations, the Tribunal was not satisfied that there was another reason why the cancellation of the visa should be revoked and that the correct or preferable decision was to affirm the delegate’s decision not to revoke the cancellation (T [210]-[221]). The Tribunal concluded that its decision was to affirm the delegate’s decision (T [222]).

The primary judge’s decision

42    The appellant sought judicial review of the Tribunal’s decision on three grounds. The appellant was self-represented in the hearing before the primary judge although he had had pro bono assistance at an earlier point in the proceedings. As mentioned earlier, the primary judge dismissed the application.

43    None of the grounds of review that were the subject of the primary judge’s reasons is pursued in the appeal. Rather, the appellant contends, in substance, that the primary judge was in error on the basis of two new grounds of judicial review that were not raised before the primary judge.

44    Therefore, it is not necessary to explain the primary judge’s reasons because none of the grounds of review allege any error in the manner in which the primary judge dealt with the grounds of review advanced below.

The grounds of appeal and leave to argue them

45    The appellant’s amended notice of appeal pleads the following grounds of appeal:

1.    The primary judge erred in failing to find that the Administrative Appeals Tribunal (Tribunal) erred jurisdictionally in its treatment of the best interests of minor children by reasoning illogically, irrationally or otherwise unreasonably in dealing with Mr King’s representation that his children’s best interests weighed in favour of revocation because he needed to be in Australia to ensure their education in their Māori culture (Māori culture representation).

Particulars

(i)    The Tribunal’s treatment of the Māori culture representation appears at Appeal Book (AB) 412 [160].

(ii)    There, the Tribunal conducted a a [sic] comparison between the hypothetical life the children might have lived in New Zealand (had the parents not made the ‘decision to raise them in Australia’) and the life the children were actually living in Australia, whereas the only comparison logically capable of informing the Tribunal’s assessment of how its decision might affect the best interests of minor children was between the life the children would live in Australia with, or without, their Māori father present.

(iii)    The Tribunal’s reasoning in this respect was illogical, irrational or otherwise unreasonable.

(iv)    This argument was not raised before the primary judge.

2.    The primary judge erred by failing to find that the Tribunal erred jurisdictionally in its treatment of the extent of impediments Mr King would face if removed by:

a.    Failing to complete the statutory task, by failing to evaluate Mr King’s representations that he would face impediments if removed to New Zealand by reason of his heart condition; and/or

b.    Failing to consider the medical support that was available to Mr King in New Zealand as required by paragraph 9.2(1)(c) of Direction 90.

Particulars

(i)    The Tribunal accepted ‘that the Applicant has a history of heart failure’ and ‘that condition is likely to require ongoing management’ (AB 419 [184]).

(ii)    However the Tribunal purported to discount the relevance of the heart conditions because:

a.    ‘there is no evidence to suggest the Applicant would not have access to medications and appropriate medical care to manage this condition on return to New Zealand’; and

b.    there was no evidence that the heart conditions would prevent Mr King working.

(iii)    The Applicant makes no complaint to this Court in respect of the second strand of the reasoning, but asserts that the first strand (in particular its framing as a double negative) evinces a failure to complete the statutory task (namely, to evaluate the Applicant’s representations) and/or a failure to comply with paragraph 9.2(1)(c) of Direction 90.

(iv)    This argument was not raised before the primary judge.

(Emphasis in original.)

46    As the appellant’s amended notice of appeal identifies alleged jurisdictional errors of the Tribunal that were not raised before the primary judge, he required leave to rely on such grounds in the appeal. The Court granted the appellant that leave at the commencement of the hearing of the appeal.

47    The principles governing the circumstances in which leave will be granted to raise a new point on appeal are well-established. Although it has been regularly observed that it would undermine the division between this Court’s original and appellate jurisdictions if parties could freely re-argue cases on appeal as if the appeal was a re-hearing de novo, the approach of the Court is not inflexible. The touchstone is whether the granting of leave to raise a new point ‘is expedient in the interests of justice’: O’Brien v Komesaroff [1982] HCA 33; (1982) 150 CLR 310 at 319 (Mason J), cited in VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; (2004) 238 FCR 588 at [46] (Kiefel, Weinberg and Stone JJ). There are no firm rules governing when the Court should grant leave to raise a fresh point on appeal, because the interests of justice is a broad consideration which will have different dimensions depending upon the circumstances of each case.

48    In brief, leave was granted in this case because the Minister did not oppose it, the appellant was unrepresented before the primary judge and the appeal is very significant to the appellant because of the personal consequences for him of failing and being removed from the country. Further, there appeared to be sufficient merit, at least in respect of ground 1, to warrant the grant of leave. In these circumstances, it was in the interests of justice to allow new points to be argued on the appeal.

Ground 1: Was the conclusion regarding the appellant’s children’s Maori cultural education legally unreasonable?

49    There was no dispute between the parties that Direction 90 imposed a statutory duty on the Tribunal to consider the best interests of the appellant’s minor children in Australia in accordance with para 8.3 of that direction: Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 125; (2021) 285 FCR 187 at [179] (O’Bryan J, Katzmann J agreeing at [1]). Further, that a failure to comply with a requirement of Direction 90 may result in jurisdictional error: FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 19 at [6]; Uelese v Minister for Immigration and Border Protection [2015] HCA 15; (2015) 256 CLR 203 at [64]-[68].

50    However, the appeal, as framed in ground 1 of the amended notice of appeal and as argued, did not proceed on the basis that the Tribunal failed to take into account a consideration that was made mandatory by operation of the statute. There was no contention that the Tribunal failed to deal at all with the interests of the appellant’s minor children. Rather, the appeal concerned the legal reasonableness of that consideration. In that regard, it was common ground that the ‘requisite level of engagement by the [Tribunal] with the [appellant’s] representations must occur within the bounds of rationality and reasonableness’: Plaintiff M1/2021 at [25].

51    The appellant submits that (at T [160]) the Tribunal reasoned illogically, irrationally or otherwise unreasonably in dealing with the appellant’s representation that his children’s best interests weighed in favour of revocation of the cancellation decision because he needed to be in Australia to ensure the children were educated in their Maori culture. The Minister contends that the appellant’s submission should be rejected because the Tribunal’s conclusion was not arbitrary, capricious, without common sense or lacking in an evident and intelligible justification.

52    Otherwise, the appeal was conducted on the basis that it was common ground that if the appellant established that the Tribunal’s conclusions regarding the best interests of the appellant’s minor children in Australia were legally unreasonable then such an error would be material and the decision would involve jurisdictional error. It was also apparently common ground that findings or reasoning along the way to reaching a conclusion by a decision-maker that are illogical or unreasonable may establish jurisdictional error of that kind: BZD17 v Minister for Immigration and Border Protection [2018] FCAFC 94; (2018) 263 FCR 292 at [34] (the Court) citing Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [124]-[132] (Crennan and Bell JJ). See, also, Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160 at [45] (the Court). The following further principles regarding legal unreasonableness may also be considered uncontroversial.

53    Review for legal unreasonableness is concerned with enforcement of the law governing the limits of the power in question, and not the manner in which that power was exercised. ‘[T]he Court’s role is strictly supervisory. It is concerned with determining whether there has been a lawful exercise of power having regard, in particular, to the terms, scope and purpose of the statute conferring the power. In circumstances in which reasonable minds might differ about the outcome of, or justification for, the exercise of power, or where the outcome falls within the range of legally and factually justifiable outcomes, the exercise of the power is not legally unreasonable simply because the Court disagrees, even emphatically, with the outcome or justification.’: Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1 at [92].

54    Accepting that statutory discretions confer an ‘area of decisional freedom’ a decision may be legally unreasonable if it is shown ‘to be arbitrary or capricious or to abandon common sense’, or if it ‘lacks an evident and intelligible justification’: Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 at [28], [76]; Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 at [44]. Such expressions are not to be regarded as rigid formulae, but rather, as assisting in the evaluative task of determining whether a decision may be properly characterised as sitting outside the boundaries of legal reasonableness: Stretton at [2]-[13] (per Allsop CJ).

55    ‘Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same conclusion on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision is one to which the decision maker came was simply not open on the evidence or there is no logical connection between the evidence and the inferences or conclusions drawn.’: SZMDS at [135]; DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; (2018) 258 FCR 175 at [30(4)]. However, ‘to establish jurisdictional error based on illogical or irrational findings of fact or reasoning, “extreme” illogicality must be demonstrated “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions”’: DAO16 at [30(5)] (and the authorities cited therein).

56    The appellant submits that the Tribunal had before it material that identified him as culturally and ethnically Maori. The appellant submitted to the Tribunal that he ‘provided his daughters with a connection to their Maori culture which would be impacted if he were not in Australia’. The appellant submits that these were matters that were objectively capable of being a ‘significant issue’ bearing on his children’s best interests.

57    The appellant contends that when it came to consideration of that representation and the children’s best interest, in substance, the Tribunal ignored the objective significance of that representation and instead (at T [160]) constructed a comparison between a hypothetical life that his children may have had if they lived in New Zealand and their lives in Australia. The appellant submits that the only comparison logically capable of informing the Tribunal’s assessment as to the best interests of his children was between the life the children would live in Australia with their Maori father present and life in Australia without him present. The appellant submits that the Tribunal used and relied on an incorrect comparison to diminish the weight given to the best interests of the appellant’s minor children and, in particular, the detriment to their ongoing education in Maori culture. The appellant submits this reasoning was illogical, irrational or unreasonable. In oral submissions the appellant characterised the Tribunal’s approach as one which ‘deprioritised’ the separation of the children from their father and the appellant’s contribution to their Maori cultural education.

58    Further, relying on Guttridge v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 229 at [11]–[13] (Colvin J), the appellant submits that the effect of the Tribunal’s reasoning was to consider the best interests of the children from the parents’ perspective, rather than form the perspective of the child (as Direction 90 requires). Considering the children’s interests from the parents’ perspective, so the appellant submits, is illogical.

59    The appellant submits that a logical consideration of his representations before the Tribunal would have involved an analysis of the children’s age, the cultural contributions, the cultural contributions that the appellant could make to the children’s lives if he remains in Australia, and the alternative means that the children could adopt to maintain their cultural connection if the appellant is removed, such as remote communication between the appellant or through connection with the children’s other Maori family members in Australia. The point of the appellant’s submission in this respect appears to be that the absence of consideration of these matters in the Tribunal’s reasons underscores the lack of logic in the approach the Tribunal took to the children’s Maori cultural education.

60    For the reasons that follow, the Minister’s submissions to the effect that the Tribunal’s reasoning (at T [160]) was not illogical, irrational or unreasonable should be accepted. The conclusion arrived at by the Tribunal was not arbitrary, capricious, without common sense or lacking in an evident and intelligible justification. While reasonable minds may differ on the correctness of the Tribunal’s conclusions, they are not legally unreasonable.

61    The Tribunal’s consideration of the best interests of the appellant’s children was not isolated to the controversial paragraph of its reasons (T [160]). The Tribunal’s reasons, as a whole, reveal that considerable attention was given to the best interests of the appellant’s minor children. Within its reasons, the Tribunal:

(a)    recognised the age of the appellant’s children (2 and 3 as at the time of the decision) (T [153]; [9]);

(b)    accepted the cultural connection that the appellant represented he could make to their lives (T [160]);

(c)    accepted that the absence of the appellant from the children’s lives may make it more difficult for the children to explore their Maori heritage (T [160]);

(d)    identified and acknowledged:

(i)    the means available to the appellant to maintain connection with his children through remote communication;

(ii)    that those means were likely to remain available if he was removed to New Zealand (T [157]); and

(iii)    the limits of those means of communication (T [157]); and

(e)    recognised that the children would still have the support of their wider family in Australia, including the appellant’s former partner, the appellant’s adult children (T [158]) and the appellant’s (Maori) sisters (T [158]; [200]).

62    While not forming part of his written representations, in substance, (T [160]) the Tribunal identified that the appellant made an oral ‘representation’, as an integer of the appellant’s reasons for revocation, that ‘his presence was needed in Australia to ensure [his minor children’s] education in their Maori culture’. The Tribunal noted that the children were already ‘being raised at a distance from their Maori heritage’. The Tribunal accepted that ‘the absence of their father may make it more difficult for the children to explore their Maori heritage’. The Tribunal then said that it considered ‘the decision to raise them in Australia … represents their most significant separation from that culture’. The Tribunal then concluded that it did ‘not accept that factor significantly increases their best interests’ (emphasis added).

63    On a fair reading of the Tribunal’s reasons, the reference to ‘that factor’ (T [160]) is not a reference to the decision of the children’s parents to raise them in Australia. The Tribunal has not reasoned based on a comparison of a hypothetical ‘life in New Zealand’ with the actual ‘life in Australia’ as the appellant submits. Nor has the Tribunal made the error of considering the separation of the children from Maori culture from the perspective of the parents and not the children. On a fair reading of the Tribunal’s reasons – and without an eye keenly attuned to error – the ‘factor’ to which the Tribunal refers is ‘the absence of their father [making] it more difficult for the children to explore their Maori heritage’. That was the relevant factor the appellant had identified in his oral representations to the Tribunal and that was the factor under consideration (at T [160]).

64    Again, on a fair reading of the Tribunal’s reasons, the Tribunal did not accept ‘that factor’ significantly affected the best interests of the children because they were already separated from that culture geographically (T [160]). While it might reasonably be thought, given the distance from Maori culture, that the appellant’s presence in Australia to ensure the education of his children in that culture is all the more important and significant, the Tribunal did not come to that view or attribute weight to the factor in that way. The Tribunal’s conclusion is insensitive to the importance to indigenous peoples of cultural education (child or adult). The correctness of the Tribunal’s view of the significance of the ‘factor’ for the best interests of the children and the minimal weight the Tribunal attributed to that factor is very much open to doubt, but even if wrong it was an error that was within the jurisdiction of the Tribunal. It is not a conclusion that lacks intelligible justification or that is illogical, irrational or unreasonable in the sense that falls within the concept of jurisdictional error.

65    The Tribunal did not make the error asserted in ground 1 of the amended notice of appeal.

Ground 2: Was there an erroneous failure to consider medical support in New Zealand?

66    As framed, ground 2 of the amended notice of appeal invokes two alleged kinds of jurisdictional error: (1) a failure to evaluate the appellant’s representations to the effect that he would face impediments if removed to New Zealand by reason of his heart condition; and (2) a failure to consider the medical support that was available to the appellant in New Zealand as required by para 9.2(1)(c) of the Direction 90.

67    So framed, the appellant’s contention is not that the Tribunal had failed to deal at all with the extent of his impediments or his heart condition as required by para 9.2(1) of Direction 90. Rather, ground 2 of the appeal concerned the quality of that consideration (or evaluation) as to one aspect of the appellant’s representations and, in effect, that there had been a failure to consider one factor that was made mandatory by para 9.2(1)(c) of Direction 90.

68    Again, it was common ground that, if the appellant’s representations had raised matters that required the Tribunal to take into account any medical support available to him in New Zealand in accordance with para 9.2(1)(a) of Direction 90, a failure to do so, subject to materiality, would involve jurisdictional error: e.g., Uelese at [64] (although concerning the best interests of minor children, the principle is the same for any consideration in Direction 90 where there is material before the Tribunal that makes that consideration relevant). Similarly, where there is evidence of health conditions that may give rise to an impediment that a former visa-holder may face if removed from Australia to their home country, the Tribunal is obliged to consider that impediment in accordance with Direction 90.

69    Likewise, it was common ground that the Tribunal was required to ‘read, identify, understand and evaluate’ the appellant’s representation regarding the extent of impediments he may face if removed. Relevantly, the plurality (Kiefel CJ, Keane, Gordon and Steward JJ) in Plaintiff M1/2021 explained (at [24]-[26]) a decision-maker’s function when exercising the discretion conferred under s 501CA(4) as follows.

[24]    Consistently with well-established authority in different statutory contexts, there can be no doubt that a decision-maker must read, identify, understand and evaluate the representations. Adopting and adapting what Kiefel J (as her Honour then was) said in Tickner v Chapman, the decision-maker must have regard to what is said in the representations, bring their mind to bear upon the facts stated in them and the arguments or opinions put forward, and appreciate who is making them. From that point, the decision-maker might sift them, attributing whatever weight or persuasive quality is thought appropriate. The weight to be afforded to the representations is a matter for the decision-maker. And the decision-maker is not obliged “to make actual findings of fact as an adjudication of all material claims” made by a former visa holder.

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

[26]    Labels like “active intellectual process” and “proper, genuine and realistic consideration” must be understood in their proper context. These formulas have the danger of creating “a kind of general warrant, invoking language of indefinite and subjective application, in which the procedural and substantive merits of any [decision-maker’s] decision can be scrutinised”. That is not the correct approach. As Mason J stated in Peko-Wallsend, “[t]he limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind”. The court does not substitute its decision for that of an administrative decision-maker.

(Footnotes omitted.)

70    The appellant submits that the Tribunal’s observation (T [184]) to the effect that ‘there is no evidence to suggest the [appellant] would not have access to medications and appropriate medical care to manage [his heart condition] on return to New Zealand’ reveals a failure to evaluate the appellant’s representations and (or) a failure to consider the medical support that was available to him as required by para 9.2(1)(c) of Direction 90.

71    The appellant submits, with respect to the evidence and representations relating to his heart conditions, that he noted on his revocation request dated 7 December 2020 that one of the impediments to his return to New Zealand was ‘advance heart failure’. In response to a request for further information regarding his heart condition, the appellant wrote to the delegate explaining that ‘2 years ago [he] suffered from a serious 2nd advanced heart failure; myocarditis thrombosis’ and that he was still receiving treatment and taking medication. The appellant also referred to his ‘major heart attacks’ in an undated letter to the Tribunal, in which he submits that he disagreed with the delegate’s finding that he would have the same level of support and health services in New Zealand.

72    Further, the appellant submits that the Tribunal had before it a transcript of proceedings in the Magistrate’s Court at Kalgoorlie on 5 November 2020, in which the Magistrate accepted the appellant’s medical condition. The Magistrate noted the diagnosis of ‘Advanced Heart Failure, Hypertension … and Biventricular Congestive Heart Failure’ in 2019. The Tribunal also had prison and parole records before it which confirmed the appellant’s medical records as including ‘cardiac; advanced heart failure’. These records also detailed several instances where the appellant received medical care in relation to his heart conditions.

73    The appellant contends, in substance, that the representations and evidence concerning his heart condition required the Tribunal to consider the extent to which that condition resulted in an impediment he would face in New Zealand taking into account any medical support available to him in New Zealand. That is, the Tribunal had a mandatory obligation to consider the medical support that was available to him in New Zealand.

74    The appellant acknowledges that the Tribunal accepted that he had a ‘history of heart failure’ and his conditions are ‘likely to require ongoing management’ and, to that extent, the Tribunal evaluated the representations and evidence concerning his heart condition. However, the appellant takes issue with the Tribunal’s conclusion (at T [184]) that ‘there [was] no evidence to suggest the [appellant] would not have access to medications and appropriate medical care to manage this condition’ in New Zealand. The appellant submits that conclusion reveals a failure to evaluate the appellant’s representations and (or) a failure to consider the medical support that was available to him as required by para 9.2(1)(c) of Direction 90. In support of his submissions, the appellant relies on LRMM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1039 at [29] (Logan J) and Nguyen v Minister for Immigration, Citizenship, Migrant Service and Multicultural Affairs [2020] FCA 985 at [32], [47], [53] (Mortimer J).

75    In LRMM there was evidence before the Tribunal of a health condition (alcohol dependency disorder). The Tribunal had failed to consider at all the extent to which that health condition resulted in any impediment for the former visa-holder if removed. In that context, Logan J said that the ‘Tribunal was obliged, under the heading health, to acknowledge and then address the ramifications of the alcohol dependency disorder [of LRMM]’: LRMM at [29] (there dealing with the equivalent part of the former Direction 79).

76    In Nguyen the Tribunal had accepted that the public health services in the former visa-holder’s home country (Vietnam) would not offer the same access to treatment that he received in Australia. The Tribunal then said there was ‘no evidence before the Tribunal’ about the availability of certain antiviral medication that Mr Nguyen said he relied upon and that would be less available in Vietnam. There was an express representation about the impediment (lower availability of antiviral medication). The Tribunal did not deal with that representation and that was found to be an error because it chose neither to make its own enquiries nor accept Mr Nguyen’s representations, but chose ‘no fact finding path at all’: Nguyen at [47], [52]-[55].

77    While it is clear that the appellant’s representations included an assertion that his heart condition was an impediment to his return to New Zealand, it is not obvious that part of the appellant’s representations included an assertion to the effect that the level of medical support available to him in New Zealand was inferior to that available to him in Australia. The appellant’s submissions in response to the delegate’s conclusions about the level of support in New Zealand were as follows:

You stated that I would have the opportunities for the same level of Support & Health Services in N.Z but that is far from true. Here I have work, a family, supportive friends, community agencies whom I would have the opportunity to work with. Returning home I believe will put myself under too much duress and ultimately I would suffer medically & have no one to help me in this circumstance, which would leave me at a disadvantage.

(Emphasis added.)

78    The focus of the appellant’s submission, which he contends addressed the level of medical support in New Zealand, was that the support of family and friends he enjoyed in Australia would not be available in New Zealand. The focus is not on the level of health care or services available in New Zealand. The appellant made no positive assertion that the level of health care available in New Zealand presented an impediment to the appellant’s return. In that context, the appellant’s submissions to the effect that the Tribunal’s reasons (at T [184]) reveal that the Tribunal failed to ‘read, identify, understand and evaluate’ the appellant’s representations must be rejected. The Tribunal’s reasons, as a whole, disclose that it had read, identified, understood and evaluated the appellant’s representations about his heart condition and the nature of any impediment that condition had with respect to his return to New Zealand.

79    The Tribunal’s reasons (at T [184]) also reveal that the Tribunal, having understood and accepted that the appellant has a heart condition, went on to consider whether that medical condition might be an impediment if the level of medical support available in New Zealand was inferior to that available in Australia. Having identified that as a possible issue, the Tribunal concluded it was not in a position to resolve it because there was ‘no evidence’ on that topic. The Tribunal was under no general duty to undertake its own inquiries into that topic: Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 259 ALR 429 at [1] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). It was not a circumstance in which the Tribunal either failed to consider the level of medical support in New Zealand at all or took no fact finding path at all. In substance, the Tribunal made no finding that his removal to New Zealand would impede access to medication and appropriate medical care to manage his heart condition because there was no evidence to that effect.

80    It has to be kept in mind that other considerations referred to in Direction 90 must be taken into account ‘where relevant’. If the evidence before the Tribunal has not raised the possibility that access to medication and appropriate medical care will be an impediment, then the Tribunal may consider that any medical support available is not material or relevant to the consideration of the extent of impediments if removed. Moreover, in this case, in the absence of evidence to the contrary, it was reasonable for the Tribunal to presume that the level of medical support available in New Zealand was equivalent to that available in Australia: e.g., Vaokakala v Minister for Home Affairs [2019] FCA 1979 at [34] (and the authorities there cited). Therefore, even if the Tribunal had failed to consider and make a finding about the availability of medical support in New Zealand, that failing was not material. Based on the evidence before the Tribunal (or the lack of evidence to the contrary), any failure to make findings about the level of medical support in New Zealand could not, as a matter of reasonable conjecture, have made any difference to the outcome or conclusions that the Tribunal made regarding impediments to the appellant if removed from Australia: Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 403 ALR 398 at [32]-[33].

81    The Tribunal did not make the errors asserted in ground 2 of the amended notice of appeal.

Conclusion

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

Associate:

Dated:    8 September 2023