Federal Court of Australia

Rukuwai v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 157

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs, to be agreed or assessed.

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

REASONS FOR JUDGMENT

THE COURT:

Introduction

1    This is an appeal from a decision of a single judge of this Court, dismissing an application for judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal), affirming a refusal of a delegate of the first respondent (the Minister) to revoke the cancellation of the appellant’s Special Category (Class TY) (Subclass 444) visa under s 501CA(4) of the Migration Act 1958 (Cth).

2    Two grounds of appeal were argued, but they raised one question, viz whether the primary judge erred in failing to find that the Tribunal failed to consider whether the appellant’s former spouse was a member of her family for the purpose of the definition of “family violence” within Direction no. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction 90). The Minister also filed a notice of contention, submitting that the decision of the Full Court in Deng v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 293 FCR 509 was wrongly decided.

3    For the reasons that follow, the grounds of appeal fail, and the appeal must be dismissed.

The Tribunal’s reasons

4    The following relevant facts are contained in the reasons of the Tribunal.

5    The appellant moved to Australia with her mother and stepfather in January 1986, when she was six years old.

6    Her childhood and early adulthood “were unremarkable”. She was part of a large family with roots in the Māori community. Her first child KT was born on 11 November 2000. The appellant was not married at the time and the relationship with the father did not last.

7    Soon after she formed a relationship with JA, and they married in 2001. She had four children with him.

8    Between 2001 and 2015, the appellant and JA led what the Tribunal described as “a happy family life”.

9    The appellant “actively encouraged her children to play sport, which she also played herself. She was involved with managing netball teams and rugby league teams for her children and played competitive netball herself. She was heavily involved with her extended family and it is clear that she was involved not just with her own nuclear family but the broader family life of her sisters and brothers”.

10    However, in 2015, appellant began to use methamphetamine (or “ice” as it is called colloquially).

11    During 2016, her marriage to JA broke down.

12    As a result of disputes about property and custody the split became acrimonious.

13    In February 2017, after both the appellant and JA had “re-partnered”, the appellant sent JA the following text message (threatening text):

Get her fucken mongrel kids under control too… Another one of the kids come home and say hers have hit them and I’ll be around with a fucken bat

Why the fuck u even want our kids around those fukn animals is beyond me…

14    JA reported the matter to the police and the appellant was charged with using a carriage service in a menacing, harassing or offensive manner. She was convicted and fined.

15    A domestic violence order had already been taken out by JA, but following the sending of the threatening text, the order was extended to his new partner and her children.

16    Prior to these events the appellant had formed a relationship with a new man, CK.

17    In August 2017, the appellant discovered that she was pregnant with her second child fathered by CK.

18    The Tribunal said that “[a]s the pregnancy progressed, JA obtained orders which allowed him to put the family home on the market”.

19    At some point during the pregnancy, the appellant’s eldest son went to live with JA, but she retained the full-time care of her other four children.

20    Sometime early in 2018, another of her children with JA moved in with him, and then JA was awarded full parental rights over their four children.

21    At this point in time, the applicant had been a regular ice user and over the course of 2018 the appellant’s use of the drug moved from being regular to daily.

22    From 2018 to 2020, the appellant engaged in extensive criminal offending, the details of which do not matter for the purposes of this appeal.

Visa cancellation

23    On 17 February 2021, the appellant’s visa was mandatorily cancelled pursuant to s 501(3A) of the Migration Act because she did not pass the character test, on the basis that she had a “substantial criminal record” as a result of being sentenced to a term of imprisonment of 12 months or more, which was being served on a full-time basis: ss 501(6)(a) and 501(7)(c). She was invited to make representations to the Minister about revocation of the original cancellation decision.

24    On 19 February 2021, the appellant applied for revocation of the visa cancellation and made representations in support of revocation.

25    On 28 March 2022, the delegate decided not to revoke the cancellation of the appellant’s visa, and on 1 April 2022 she applied to the Tribunal for review of the delegate’s decision not to revoke the cancellation.

26    On 21 June 2022, the Tribunal affirmed the delegate’s decision and provided written reasons on 8 July 2022.

Relevant statutory provisions

27    Section 501(3A) of the Migration Act provides for the mandatory cancellation of a visa if the Minister finds that the person does not pass the character test, relevantly as follows:

501    Refusal or cancellation of visa on character grounds

…

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

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

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

…

28    A person will not pass the character test where they have a substantial criminal record, including where a person has been sentenced to a term of imprisonment of 12 months or more: ss 501(6)(a) and (7)(c).

29    The Minister may revoke the original decision pursuant to s 501CA, which relevantly provides:

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

(1)    This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.

...

(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.

…

Direction 90

30    Direction 90 comprises a direction given by the Minister under s 499 of the Migration Act which the Tribunal was bound to comply with when exercising its discretion under s 501CA(4).

31    Paragraph 4(1) of Direction 90 defines “family violence” as follows:

family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.

32    Inclusive examples of behaviour that may constitute family violence are also given.

33    Paragraph 8 of Direction 90 is entitled “Primary considerations”. It provides in respect of making decisions under s 501CA(4) 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; and

4    expectations of the Australian community.

34    In the context of considering Primary Consideration 1, para 8.1.1 prescribes what is to be taken into account when considering the nature and seriousness of the conduct, relevantly as follows:

8.1.1    The nature and seriousness of the conduct

(1)     In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to the following:

a)     without limiting the range of conduct that may be considered very serious the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:

i.     …

ii.     …

iii.     acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;

…

35    Paragraph 8.2 concerns Primary Consideration 2 and provides:

8.2    Family violence committed by the non-citizen

(1)    The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen (see paragraph (3) below).

(2)     This consideration is relevant in circumstances where:

a)     a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or

b)     …

(3)     In considering the seriousness of the family violence engaged in by the non-citizen, the following factors must be considered where relevant:

a)     the frequency of the non-citizen’s conduct and/or whether there is any trend of increasing seriousness;

b)     the cumulative effect of repeated acts of family violence;

c)     rehabilitation achieved at time of decision since the person’s last known act of family violence, including:

i.     the extent to which the person accepts responsibility for their family violence related conduct;

ii.     the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);

iii.     efforts to address factors which contributed to their conduct; and

d)     Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen’s favour. This includes warnings about the non-citizen’s migration status, should the non-citizen engage in further acts of family violence.

36    Paragraph 8.3 concerns Primary Consideration 3. It identifies a number of factors which include (at para 8.3(4)(g)):

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

…

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

…

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;

…

37    Paragraph 8.4 concerns Primary Consideration 4 and identifies “acts of family violence” as being indicative of “serious character concerns” for which “non-revocation of the mandatory cancellation of a visa … may be appropriate simply because of the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa”.

The Tribunal’s decision

38    There was no dispute that the appellant did not pass the character test prescribed by s 501(6)(a) because of her criminal offending.

39    Accordingly, the question before the Tribunal was whether there was “another reason” why the cancellation should be revoked pursuant to s 501CA(4)(b)(ii).

40    Having first made findings of fact (the relevant ones are set out above), the Tribunal then considered seriatim each of the matters which Direction 90 required it to consider.

41    For the purposes of this appeal, it is only necessary to set out relevant portions of the Tribunal’s findings about Primary Considerations 1, 2 and 4, because they are the only such considerations about which the appellant complained. Those portions of the Tribunal’s findings as follows:

Primary Consideration 1 – Protection of the Australian community

…

(a)    Nature and seriousness of the applicant’s conduct to date

…

76.    The second significant offence is a family violence offence. The applicant breached the domestic violence order to which she was subject and threatened violence towards JA and his partner. I am satisfied that was an act of family violence as defined in the Direction.

77.    Family violence is defined to mean:

…violent, threatening or other behaviour by a person that…causes the family member to be fearful.

78.    I am satisfied that the sending of the text in 2017, which stated ‘I’ll be around with a fucken bat’, at a point in time when her former partner new that the applicant both used methamphetamine and had at least one criminally violent incident in her past, did cause her former partner to be fearful. The fact that the matter was reported to the police and charges were proceeded with is consistent with this conclusion.

79.    I am therefore satisfied that the applicant engaged in an act of family violence. Under the Direction this should be viewed very seriously.

…

(b)    The risk to the Australian community should the applicant commit further offences or engage in other serious conduct

…

The nature of the harm

87.    The applicant has offended in a variety of ways but most of it is very closely associated with the use of methamphetamine. I have no doubt that if the applicant remained drug free, she would pose only a very small risk of re-offending.

88.    However, if the applicant were to resume her drug use, the nature of the harm which the Australian community would be exposed to would include:

(a)    …

(b)    Harm from threats of violence when the applicant comes into conflict with other members of her family, especially her former spouse and potentially her eldest daughter;

(c)    …

…

Primary Consideration 2 – Family violence committed by the non-citizen

103.    Although the applicant has breached domestic violence orders on a number of occasions, I am satisfied that only one of the breaches involved an act of family violence as defined in Direction 90. That incident involved the applicant making credible threats of violence to her former spouse via text. I am satisfied that the applicant was convicted of an offence that involved family violence.

104.    …

105.    In these circumstances the family violence engaged in by the applicant is at the very lowest end of seriousness. There was a single threat of violence which made a family member fearful. Although the resulting DVO was breached in other ways, I am not satisfied that anything the applicant did in breach of the order made a family member fearful. She has not repeated the threats of violence or engaged in any other behaviour that satisfies the definition of family violence.

106.    Consequently, this consideration weighs against revocation of the visa cancellation, but only to the smallest degree.

…

Primary Consideration 4 – The expectations of the Australian community

…

137.    … the expectation of the Australian community, as expressed in the Direction, is that a person like the applicant who has failed to obey the law will not be allowed by the Australian Government to remain in Australia. Also, non-revocation may be appropriate simply because of the nature of the applicant’s offences. The expectation is that the Government should cancel a visa if offences of particular kinds raise character concerns. Acts of family violence and the commission of crimes against officials in the performance of their duties are offences which raise such concerns.

138. …

139.    The principles also make clear that the presence of family violence is so serious that even strong countervailing considerations may not be sufficient in some circumstances to justify an exercise of the discretion in favour of the applicant – even if there is no measurable risk of the applicant causing physical harm to the Australian community. These matters need to be carefully weighed.

140.    In weighing this consideration, I note the following:

…

(d)    The applicant has engaged in family violence as defined in the Direction … [but] it is very much at the low end of the scale …

The reasons of the primary judge

42    The hearing of the proceeding below, if we may say so with respect, was unnecessarily distracted by submissions about:

(1)    the decision of the Full Court in Deng;

(2)    ss 5CB, 5F and 5G of the Migration Act; and

(3)    the application of the decision of the High Court in Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; 96 ALJR 497 at 508-9 [25].

43    Significant parts of the reasons of the primary judge deal with submissions about those matters. We do not propose to set out those reasons, or otherwise to refer to them in any detail, because they are not relevant to the true (and limited) question raised both before the primary judge and on appeal.

44    The grounds of appeal below were, relevantly, as follows:

1.     The [AAT] failed to consider whether the [appellant’s] former spouse was her “family member” for the purpose of the definition of “family violence” within Direction 90, thereby making a jurisdictional error in the form of a constructive failure to carry out the statutory task of review.

2.     The Tribunal made a jurisdictional error in the form of a legally unreasonable finding.

45    Those grounds were rephrased in submissions as: “Ground 1: did the Tribunal fail to consider whether [the appellant’s] former partner was no longer her family member? Ground 2: was it legally unreasonable for the Tribunal to treat her former partner as her family member?”

46    The primary judge observed that the two grounds were sought to be distinguished as follows:

61    The [appellant] distinguishes ground 2 from ground 1 in this way: Ground 2 contends that a former partner is “never” capable of constituting a family member within the definition of “family violence” in Direction 90. Ground 1 contends that it is possible for a “former partner” to fall within the definition, but the Tribunal will err if it fails to turn its mind to and make findings as to whether the former partner is, in a particular case, a family member.

47    Leaving aside Deng, and the other unrelated or tangentially relevant matters mentioned above, her Honour’s reasons with respect to ground 1 were as follows:

65    The applicant contends that the Tribunal was required to determine whether the applicant’s former husband was a member of her family at the time of the offending so as to constitute family violence and that as they were no longer partners, there was no intention to resume their relationship, and therefore he could not be a member of the applicant’s family for the purpose of the definition of family violence in Direction 90. The Minister conceded that the issue of whether the applicant’s former partner was a member of her family was not expressly addressed by the Tribunal.

…

84    ... It is not always necessary for the Tribunal to engage in a detailed consideration of whether the victim of violence was a member of the applicant’s family. The same was conceded by the applicant at hearing.

85    In addition, here the Tribunal expressly stated that it was satisfied that the conduct amounted to an “act of family violence as defined in the Direction” (at T[76]) and referred to the definition at T[77] ...

86    Whilst the applicant concedes that the Tribunal extracted part of the definition of “family violence” at T[77] (see above at [49]), the applicant submits that this was insufficient to demonstrate that the Tribunal considered whether the applicant’s former husband was a member of her family. I do not accept this submission.

87    I accept the submission of the Minister that the Tribunal’s lack of detailed analysis as to whether the applicant’s former husband was a member of her family cannot give rise to an inference that the question was not considered in this case.

…

93    Unlike the inherent ambiguity of the term “intimate partner” which arose in Deng, a former spouse is more plainly a “family member”. I accept the Minister’s submission that the former spousal relationship was of sufficient seriousness, longevity, and involved the rearing of children such that the position of JA is much closer to the position of the sister in Deng at [125] than the intimate partner in Deng such that they would be considered a family member without more express consideration.

94    Furthermore, contrary to the applicant’s submission, the Tribunal did consider “family violence” (at T[79]). It makes a finding that it is satisfied that the applicant’s violence towards the former husband (in the form of threatening text messages) was “family violence”. Further, the Tribunal went on to consider whether other breaches of DVOs by the applicant constituted “family violence” and determined that they were not “family violence” according to that definition (at T[103]–[105]) and gave very little weight to them (at T[106]).

48    As to ground 2, her Honour relevantly reasoned as follows:

99    By ground 2, the applicant submits that it was legally unreasonable for the Tribunal to interpret “unduly broadly” the definition of family violence in Direction 90 by treating a former partner as a member of the applicant’s family…

…

101    For the same reasons, as articulated above with respect to ground 1, I do not accept the premise underlying the purported unreasonableness: Direction 90 does include in the definition of “family violence”, a “member of the person’s family” who is a former spouse.

The submissions on appeal about the critical issue

49    The appellant argued on appeal that the primary judge’s reasons reveal an error in not finding that the Tribunal failed to consider whether her former partner was her family member from the time of the threatening text onwards, which meant that the Tribunal failed to carry out its statutory task and acted unreasonably.

50    The gist of the two grounds of appeal, which were in substance the same as those contended for below, was that the Tribunal assumed, and did not consider and explain why, JA was a member of the appellant’s family within the meaning of Direction 90, and that it was necessary to do so in circumstances where the marriage between them had broken down, they lived in different houses, they had “re-partnered” and where, it was said to be inferred, they were not financially dependent. As Mr HPT Bevan SC, who appeared with Mr SZ Stagliorio of counsel, put it, accepting that the “family” is an ordinary English word, “that still doesn’t answer the question, because it just means … that … the Tribunal … has to find as a matter of fact and engage upon who is or is not the members of the family”. Mr Bevan agreed with the proposition that that was the critical issue for the purposes of the appeal.

51    As Mr Bevan put it:

[B]ecause of the … the facts that tended against it and show – particularly the marriage breakdown; the ending of relationship; the dissolution of the marriage, whether formally by decree at a time that we don’t know or otherwise, but a breakdown; repartnered; different houses; no express findings in relation to financial dependency, but would infer separated or different – that that – let’s just call it deeply human murky aspect – required, in my respectful submission, the [T]ribunal to engage in a finding as to whether or not, at that time, JA was a member of the – of my client’s family, in order to fall within the definition.

52    Mr Bevan also sought to make something of the fact that when the Tribunal recited the definition of “family violence” at [77] (“…violent, threatening or other behaviour by a person that…causes the family member to be fearful”), the senior member omitted “(the family member)” from the quote.

53    Mr P Knowles SC, who appeared with Mr N Swan of counsel for the Minister, made the following submissions about the critical issue.

54    The Queensland Police Service Court Brief dated 2 March 2017, relating to the appellant being charged with the offence of using a telephone service in such a way that reasonable persons would regard that use as menacing, harassing or offensive, contrary to s 474.17(1) of the Criminal Code (Cth), and which was part of the material before the Tribunal, recorded that JA and the appellant separated in March 2016 and that the threatening text was sent in February 2017. Mr Knowles pointed out in his oral address that s 48(2) of the Family Law Act 1975 (Cth) provides that that an order for divorce cannot be made except after 12 months after the separation of the parties. He submitted that “that may be at least some evidence that, at the time of the incident, the parties were in fact still married, legally, albeit separated”. The brief also recorded that as at February 2017, JA and the appellant had joint custody of their children.

55    Next, he relied on the Tribunal’s finding at [41] that JA had after August 2017 obtained orders which allowed him to put the family home on the market, although it was not altogether clear to us what inference was sought to be drawn from that fact.

56    Mr Knowles’ oral submission continued as follows:

The member refers to family violence and the definition at paragraph 77. Now, it’s said against me by my learned friend that this quote leaves out the defined term “family member”, the words “family member” defined to mean “member of the family”, in a somewhat tautologous but perhaps space-saving way.

There’s – nothing turns on that, because the senior member was clearly aware and quoted from the definition that the violent, threatening or other behaviour had to cause the family member to be fearful. And there’s then a discussion of the particular circumstances, at paragraph 78, including that there was a new partner, and there can’t be any real doubt, in my submission, that the tribunal member turned … his mind … to the definition and whether this event satisfied that definition, including because the relevant people involved were members of the family.

… At paragraph 103, the tribunal member finds that certain acts, although breaches of a domestic violence order, were not family violence as defined in the direction. Clearly, the tribunal member is turning … his mind to that definition, and then, at paragraph 105, the tribunal member weighs what he finds is the single act of violence, which was at the very lowest end of seriousness …

O’CALLAGHAN J: Well, it also goes on to say there’s a single threat of violence which made a family member fearful.

MR KNOWLES: Yes. And that’s important, with respect, and I thank your Honour for pointing that out, is that there’s no real doubt that the tribunal reached a decision, not only was this family violence, but the victim of the violence was a family member. Nothing turns on 106. I don’t take a materiality point, even though this was a fairly minor point in the scheme of things.

Consideration

57    No party before the Tribunal, the primary judge, or before us on appeal, referred to any dictionary definition of the word “family”.

58    The Macquarie Dictionary defines “family” to include “parents and their children, whether dwelling together or not”.

59    The word “family”, and the expression “member of a person’s family” do not “encompass[] anything more or less than is signified by the common understanding of that [word and] expression”. Accordingly, “the application or non-application of the common understanding of [that word or] expression used in a statute [or a Direction] to facts that have been found is itself a question of fact”. Compare Comptroller-General of Customs v Pharm-A-Care Laboratories Pty Ltd (2020) 270 CLR 494 at 513 [41] (Kiefel CJ, Bell, Gageler, Keane and Gordon JJ) (and the cases cited at footnote 58).

60    It is obvious, and the parties agreed, that whether a person is a “member of a person’s family” is a question that the Tribunal “must” consider. That is because the Direction requires the Tribunal to take into account, if relevant, considerations that are expressed to be based on that concept.

61    It was not in dispute that the phrase should not narrowly be construed.

62    It is also nowadays trite to observe that:

(1)    a failure to comply with a lawful direction (like Direction 90) made under s 499 of the Migration Act can constitute jurisdictional error;

(2)    a statement of reasons must be read fairly and not in an unduly critical manner; and

(3)    a statement of reasons must be read in light of the content of the statutory obligation pursuant to which it was prepared (here, Direction 90).

63    In our view, the Tribunal did not fail to consider whether JA was the appellant’s “family member” for the purposes of Direction 90. It clearly did.

64    It is clear on the face of the Tribunal’s reasons that the senior member knew that it was a necessary element of the requisite satisfaction under Direction 90 that JA was a member of the appellant’s family. See, for example, [76], [77], [88(b)], [103] and [105] of the Tribunal’s reasons, set out above.

65    There is nothing in the appellant’s point that the parenthetical words “(the family member)” are omitted from the quote at [77] because, as the Minister submitted, the definition (if that is what it is) is tautologous. Nothing turns on that because the senior member was clearly aware and quoted from the definition that the violent, threatening or other behaviour had to cause the family member to be fearful.

66    Next, the Tribunal found as a fact that the threatening text “caused the family member [JA] to be fearful” (at [78] and [105]) and thus concluded that it was satisfied that the appellant had engaged in an act of family violence within the meaning of Direction 90. It repeated that conclusion at [140(d)].

67    In circumstances where findings of fact had been made that JA and the appellant were happily married for 14 years; they had four children together; JA had custody of some or all of their children at different relevant times; and where the appellant’s own threatening text referred to “our kids”, the finding that JA was, on the facts, a member of the appellant’s family within the meaning of Direction 90 was, in our view, reasonably open to the Tribunal, including in circumstances where the word “family” is an ordinary English word, the meaning of which includes “parents and their children, whether dwelling together or not”.

68    We do not place reliance on Mr Knowles’ point about s 48(2) of the Family Law Act. It was not a point made before the Tribunal or before the primary judge, or in written submissions on appeal, so the appellant had no notice of it.

69    For those reasons, there was no error in the conclusions of the primary judge set out at paragraphs [47] and [48] above, and the appeal must be dismissed.

70    We should say something very briefly about the Minister’s notice of contention. The notice was in these terms:

The Respondent contends that the judgment of a single Judge of the Federal Court of Australia should be affirmed on grounds other than those relied on by the Court.

    …

Ground relied on

The judgment of [the primary judge] should be upheld on the basis that the judgment of the Full Court of the Federal Court of Australia in Deng … is plainly wrong and should not be followed.

71    It is not necessary to deal with the notice, but in any event, the reasoning in Deng is not relevant to the critical question that arises here.

72    Deng was a case where the appellant contended that the tribunal erred in treating a particular person as a family member within the meaning of Direction 90. The issue in Deng arose because the tribunal adopted the expression “intimate partner”, which was not found in Direction 90, to describe, without further elaboration, the relationship between two relevant persons. The appeal was allowed, and the matter was remitted to the tribunal, because the Full Court took the view that because the tribunal had not referred to the definition of “family violence” in Direction 90, or explained why the relevant person was a member of the appellant’s family other than to say that they were “intimate partners”, the question under Direction 90 was a “contestable issue” that required a consideration by the tribunal, which the Full Court said it had not provided. In our view, whether or not that finding was clearly wrong, it has nothing to do with the issue that arises on this appeal (and is thus a question about which it is unnecessary and undesirable for us to express a view).

73    The parties on appeal also relied on lengthy written submissions about other provisions of the Migration Act and various regulations (including, in addition to ss 5CB, 5F and 5G relied on below, ss 83 and 243 together with rr 1.12 and 1.23 of the Migration Regulations 1995 (Cth)).

74    The Full Court did observe in Deng at 530 [123] that “[s]ome assistance is provided [about the meaning of “member of the person’s family”] by ss 5CB and 5G”, but it did not say what assistance it had in mind.

75    Further, none of the submissions made before us were directed to the question of how and why any of the provisions of the Migration Act and the regulations cited at paragraph [73] above were said to affect the proper construction of Direction 90 in a manner that had any bearing on the facts of this case. We accordingly decline to burden these reasons with any consideration of them.

76    Submissions below, her Honour’s reasons, and submissions on appeal also dealt with the ripple effects of a submission made by the Minister before the primary judge that the decision of the High Court in Plaintiff M1 had some relevance, but Mr Knowles made the following concession in his closing address, which is sufficient reason not to say anything further about it:

My point in raising Plaintiff M1 in the court below was simply that there’s nothing in the material where the appellant made any representations about the scope of family violence and, in particular, whether her ex-husband was a member of the family. So if there was an obligation to consider that, it doesn’t come via the principles in Plaintiff M1. That’s as far as it goes. I don’t say she – the plaintiff was obliged to raise it, simply that – sorry – the plaintiff – the appellant was not obliged to raise it, simply that if it is to be found that there was an obligation to consider this issue, it didn’t come from the representations which she made.

Pro bono counsel

77    We should also mention that Mr Bevan SC and Mr Stagliorio appeared on a pro bono basis. The Court is indebted to them, and to their instructors (Craddock Murray Neumann), for their assistance.

Disposition

78    It follows that the appeal must be dismissed, with costs.

Associate:    

Dated:    28 September 2023