Federal Court of Australia

Korat v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 59

ORDERS

THE COURT ORDERS THAT:

1.    The appellant is granted leave to file and rely upon the amended notice of appeal.

2.    The appeal be allowed.

3.    The orders of the primary judge be set aside, and in their place order:

(a)    The application be allowed.

(b)    There issue absolute in the first instance:

(i)    a writ of certiorari directed to the second respondent quashing the decision of 20 June 2023; and

(ii)    a writ of mandamus directed to the second respondent to determine the applicant’s application according to law.

(c)    The first respondent pay the applicant’s costs.

4.    The first respondent pay the appellant’s costs of the appeal as 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:

BACKGROUND

1    The appellant appeals from orders made by the primary judge dismissing his application for judicial review: Korat v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1333.

2    The appellant is a citizen of India who first arrived in Australia on 23 April 2009 as the holder of a Student (Class TU) (subclass 572) visa. On 13 March 2019, he was granted an Employer Nomination Scheme (Class EN) (subclass 186) visa.

3    The appellant was:

    convicted on 30 August 2018 of “driving with middle range PCA”;

    convicted on 24 August 2020 of “common assault (DV)”;

    convicted on 5 February 2021 of the offence of using a carriage service for a hoax threat and was sentenced to two years imprisonment, but to be released at the expiration of 12 months from the commencement of the sentence conditionally upon him entering into recognisance to be of good behaviour for a period of three years thereafter; and

    convicted on 12 April 2021 of “common assault (DV)” and “contravene prohibition/restriction in AVO (Domestic)” and sentenced to six months imprisonment.

4    On 24 March 2021, the appellant’s visa was cancelled under s 501(3A) of the Migration Act 1958 (Cth). This was because the appellant had a “substantial criminal record” on the basis that he had been sentenced to a term of imprisonment of 12 months or more and was serving a sentence of imprisonment on a full-time basis in a custodial institution for an offence against a law of the Commonwealth, a State or a Territory – see: s 501(6)(a) and 501(7)(c) of the Act.

5    On 21 April 2021, the appellant made representations seeking the revocation of the cancellation decision under s 501CA(4) of the Act.

6    On 28 February 2023, a delegate of the Minister found that the power under s 501CA(4) to revoke the cancellation under s 501(3A) was not enlivened. The appellant was notified of that decision on 28 March 2023. On 31 March 2023, the appellant applied to the Administrative Appeals Tribunal for review of that decision. On 20 June 2023, the Tribunal affirmed the decision under review.

7    By an application filed on 21 July 2023, made pursuant to s 476A of the Act, the appellant sought judicial review of the Tribunal’s decision in this Court. That application was dismissed by the primary judge on 17 November 2023.

THE ISSUES ON APPEAL

8    In his outline of written submissions filed in the appeal, the appellant abandoned each of his earlier grounds of appeal and sought leave to raise two new grounds. These two new grounds contended that the Tribunal erred in ways different to those which had been argued before the primary judge. The Minister opposed leave being granted, but properly conceded that “to the extent the proposed grounds of appeal have sufficient merit, it may be expedient in the interests of justice for a grant of leave, particularly noting that the consequences of an adverse outcome for the appellant in this appeal are significant”. In view of the Court’s conclusion that the proposed grounds have sufficient merit in the circumstances of the case, the appellant should be granted leave to file the amended notice of appeal and to rely on the new grounds of judicial review which have been raised.

9    It follows from the fact that what are argued are new grounds of judicial review, that there is nothing to be gained from an analysis of the primary judge’s reasons which addressed grounds which have now been abandoned. The appeal turns on whether the outcome is erroneous because the appellant has established jurisdictional error on the part of the Tribunal.

GROUND 1

Introduction

10    Ground 1 revolves around paragraph 8.4 of Direction 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA, which commenced on 15 March 2023. The Tribunal was required to comply with Direction 99, it being one made under s 499(1) of the Act: s 499(2). It is convenient to refer to paragraph 8.4 of Direction 99 as the “best interests of children consideration”.

11    The reason for this is that:

    When the appellant was given notice of the visa cancellation on 24 March 2021, the appellant was provided with a copy of Direction No 79 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA, which was then applicable: AB93.

    By the time the delegate made the decision on 28 February 2023, the delegate was required 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 commenced on 15 April 2021. The “best interests of children consideration” was contained in paragraph 8.3 of Direction 90.

12    It was not suggested by either party that anything turned on the fact that different Directions applied at different times. Indeed, the matter was not raised by the parties.

13    The case before the Tribunal was correctly argued and determined by reference to paragraph 8.4 of Direction 99. Paragraph 8.4 is in the following terms:

8.4    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.

The appellant’s case

14    By Ground 1 the appellant contended that:

(a)    the Tribunal did not fairly or adequately put the appellant on notice of an adverse conclusion which was not obvious on the material, namely that the “best interests of the children consideration” might be a factor against revoking mandatory cancellation;

(b)    the possibility of the Tribunal reaching this view was not obvious because:

(i)    the delegate had come to the opposite conclusion;

(ii)    the appellant’s case before the Tribunal was that Ms Korat would not return to India and, in those circumstances, the consideration weighed strongly in favour of revocation;

(iii)    the Minister did not raise a positive contention that the “best interests of children consideration” weighed against revocation or cross-examine on that basis;

(iv)    questions asked by the Tribunal after cross-examination and before re-examination were insufficient to put the appellant on notice that the consideration might be found to weigh against revocation; and

(v)    the Minister, in closing submissions, accepted that, if the Tribunal concluded that Ms Korat would remain in Australia even if Mr Korat were to return to India, then the consideration weighed in favour of revocation.

15    It is necessary to refer to various aspects of the delegate’s and the Tribunal’s reasons in order to address the first ground of appeal.

The delegate’s decision

16    Ms Korat’s position before the delegate was different to that before the Tribunal. Before the delegate, Ms Korat had stated that she would accompany the appellant to India if that were necessary. The delegate’s reasons included:

[69]     In her letter dated 20 April 2021, Ms Korat states that she intends to accompany her husband to India if necessary, and has had frank and forthright discussions with the children to this effect. She states both [children] have expressed a great deal of reluctance to return to India, and her daughter [T] has told her that India is not a safe country, particularly for females. [T] has stated she prefers to remain in Australia, where the government protects women and children, and she has also been granted a scholarship to attend a program for gifted and talented students …

17    The delegate approached the “best interests of children consideration”, accepting that Ms Korat and the children were more likely than not to return to India with the appellant, but that it was possible that they would not. This seems to follow from what is said in [75] and [77] of the following extract of the delegate’s decision:

[72]    In light of the above information, I consider that Mr KORAT has had limited direct involvement in his children's lives, though he spent a significant period residing with [T] between 2013 and 2019. I have also taken into account that, as detailed above, Mr KORAT was experiencing significant alcohol abuse and mental health issues at that time, and as such, consider it reasonable to conclude his involvement in her life during that period was at least somewhat compromised.

[73]    I accept that Mr KORAT has played a parental role to his children from the time of their birth, though also consider that he has not been available to have an in person involvement with them for significant periods of time, either due to them living in India with his parents, or his leaving the family home and being subject to a domestic violence protection order.

[74]    The available information does not indicate whether [T] or [M] were present during either of the instances of family violence conduct detailed above, although I note that in the second matter, Mr KORAT is reported to have attended his wife's home for the purpose of seeing the children. As such, I consider it reasonable to conclude that even if the children were not exposed to the conduct, there was at least a risk they would be, which he disregarded.

[75]    I have taken into account that the children are unlikely to be separated from Mr KORAT as the result of a non-revocation decision, as Ms Korat has said she is likely to relocate to India under those circumstances. I note both children have spent significant parts of their childhood in their home country. While I acknowledge the children's personal preference to remain in Australia, I do not consider that either child will face any significant harm or experience undue suffering as a result of returning to India at this time, should that be their mother's eventual choice.

[76]    I have given consideration to the extent which Mr KORAT is likely to play a positive parental role in relation to the children. As detailed above, the alcohol abuse issues that have led to the deterioration of his mental health were not evident prior to him relocating to Australia and facing the personal stressors that arose as a result of that move. As such, I consider the risk of Mr KORAT relapsing into alcohol abuse is significantly greater in Australia, and that such a relapse would greatly impede his ability to play a positive parental role.

[77]    I am mindful that the best interests of Mr KORAT's children is a primary consideration in this context. On balance, I find that it is in the best interests of [T] and [M] that I revoke the visa cancellation, notwithstanding my concerns that his direct involvement in their life has been limited to date; that he may have exposed them to family violence and has at least exposed them at risk [sic – put them at risk or exposed them to the risk] of such exposure; and the prospect of him relapsing into alcohol abuse and being unable to be a positive influence in their lives if he returns to the Australian community. I have also considered that the children are unlikely to be separated from Mr KORAT if he is removed from Australia, and instead return to India where they have spent much of their childhoods already. On balance, I have attributed this consideration some weight in favour of a decision to revoke the cancellation of Mr KORAT's visa.

18    The delegate reached the conclusion that “on balance”, the “best interests of children consideration” should be given “some weight in favour of a decision to revoke” the cancellation decision. That conclusion was reached notwithstanding concerns about three matters, namely:

(a)    that the appellant’s direct involvement in the children’s lives had been limited to date;

(b)    that the appellant may have exposed the children to family violence and that he at least put them at risk of such exposure; and

(c)    the prospect of the appellant relapsing into alcohol abuse and being unable to be a positive influence in their lives if he returns to the Australian community.

The Tribunal’s decision

19    The appellant’s case before the Tribunal was that Ms Korat would not return to India if the appellant’s visa cancellation was not revoked. The Tribunal accepted that Ms Korat would not return to India if the appellant were to return, stating:

[96]    Ms Korat and the two children reside in Australia. Although the Applicant and Ms Korat have been separated since 2019, the most recent evidence, including her oral evidence, indicates that she still loves the Applicant and wishes to live their family life in Australia. Although she indicated in a previous statement that she and the children will return to India should the Applicant be required to return, in oral evidence she confirmed that she would not, due to the children. She stated “I'm going to stay in Australia to support my kids and fulfilling their life. I'm going to sacrifice my life for their goals, so they won't regret in the future.” The Tribunal accepts Ms Karat’s oral evidence that she would not depart Australia.

20    The Tribunal considered the “best interests of children consideration” from [102]-[113] of its reasons. It began by observing that Direction 99 required decision-makers to determine whether non-revocation was, or was not, in the best interests of a child affected by the decision: at [102]. The Tribunal recited each of the factors identified in paragraph 8.4(4): at [103]. The Tribunal referred at length to Ms Korat’s statutory declaration and referred to photographs and video of the appellant in contact with his children: at [104]-[105]. The Tribunal recorded the appellant’s submission, at [106] of its reasons, that it was “in the best interest of the children that the cancellation of his visa be revoked, and that this consideration weighs strongly in favour of revocation”: at [106].

21    The Tribunal recorded the Minister’s contentions, by reference to the Minister’s Statement of Facts Issues and Contentions (SFIC), in the following way (footnotes omitted):

[107]    The Respondent contended that there is limited evidence in respect of the Applicant's relationship with his children and the evidence further suggests that the Applicant has spent a significant amount of time away from his children, in particular [redacted – Applicant’s son]. However, the Respondent noted that in circumstances where the cancellation of the Applicant's visa will not cause the children to be separated from their father as they will return to India with him, should the Tribunal find this consideration weighs in favour of revocation, it should be given limited weight.

22    The Tribunal then stated (footnotes omitted; emphasis added):

[108]    For the reasons explained above, on balance, the Tribunal is satisfied that the Applicant has strong, personal and lengthy ties in Australia, including his children and Ms Korat. The question here though is whether non-revocation under section 501CA is, or is not, in the best interests of a child affected by the decision.

[109]    It is a generally-accepted proposition that it is in the children’s best interest to be cared for by both of their parents. However, it is also accepted that families in Australia come in many forms, including a single parent home. Despite all of his good intentions, which the Tribunal accepts, it is reasonable to say that the children have had to endure the very negative aspects of the Applicant’s conduct. Although there is no evidence of any abuse or mistreatment towards the children, they are aware of his criminal conduct. They know he was in prison and that he is in detention.

[110]    The Tribunal asked Ms Korat if she considered the Applicant to be a good role model for the children:

“Q.    Do you think a person who is capable and has been convicted of domestic violence is a good role model for their children?

A.    As for my opinion, Sanjay has been playing father role since 2007 till 2019. I understand he was influenced with substance and he wasn’t know what he was doing.

Q.    Substance abuse, is that a good role model for the children?

A.    I think the substance use is not the role model for the kids…Apart from that, Sanjay has a very short history with that and his parenthood as a father, it’s time is longer so he’s aware where he’s missing and what he has to implement in his life, for the betterment for the kids and for the future. For the future. I think, as a mother, I’m thinking, without father - fatherless childhood can be more dangerous for them as well. If they’re going to live without their father their whole life, that can be another problems and so many issues regarding their future as well. That is I’m concerned.”

[111]    The Tribunal does not wish to sound harsh or take the comments out of their context. However, even on her own evidence, Ms Korat recognised that aspects of the Applicant’s behaviour does not accord with being a role model for children. The evidence demonstrates that the drinking issue has not resolved. The evidence demonstrates this as Mr Sheehan acknowledged the Applicant has shown “that under certain circumstances, he remains vulnerable to resorting to alcohol use and then engaging in aggressive behaviour, which makes this a live issue, not a historical issue.”

[112]    The Tribunal is mindful that Ms Korat has made it clear in oral evidence that she does not wish to return to India. Among other things, she considered it in the best interest of her children to remain in Australia. She explained the challenges they would face if he were to leave Australia. She also raised the issue of her giving up her Indian passport, following the acquisition of the Australian citizenship. She however acknowledged that she has not made inquiries about the implications that this would or could have on her ability to return to India. In any case, Ms Korat wants the Applicant to be part of her family and the Tribunal accepts that she does not wish to leave Australia.

[113]    The Applicant remains to be the children’s father with parental obligations and responsibilities. It is not the Tribunals’ role to tell Ms Korat to stay in Australia or depart to India, as that is a matter entirely up to her. The Tribunal acknowledges the Applicant’s and Ms Korat’s desires and hopes, but the Tribunal considers it appropriate in the circumstances to moderate this consideration and give it limited weight against revocation. The family violence and the alcohol misuse present serious challenges to the proposition that revocation is in the children’s best interest. Moreover, the evidence before the Tribunal indicates that Ms Korat, albeit with some difficulties as a single parent, has cared for the children all their lives, including during the Applicant’s incarceration and detention and she has fulfilled the parental role. She came across as being a loving, caring, and a responsible parent.

[114]    On balance, the Tribunal gives this consideration some weight against revocation.

23    In essence, the Tribunal reasoned in the following way:

(a)    If the appellant’s visa cancellation was not revoked such that he would return to India, Ms Korat would not leave Australia, and neither would the children.

(b)    The appellant’s drinking issues had not resolved and were not purely a historical problem. The appellant remained vulnerable to resorting to alcohol use and then engaging in aggressive behaviour.

(c)    The family violence and the alcohol misuse presented serious challenges to the proposition that revocation of the visa cancellation was in the children’s best interest.

(d)    Ms Korat had cared for the children all their lives, including during the appellant’s incarceration and detention, and she had fulfilled the parental role as a loving, caring, and responsible parent.

(e)    On balance, the Tribunal would give the “best interests of the children consideration” some weight against revocation. This was principally for two reasons: (1) Ms Korat would remain in Australia with the children and had looked after them lovingly and well; and (2) the appellant’s drinking issues were live issues which might devolve into aggressive behaviour.

(f)    Thus, the Tribunal concluded that the best interests of the children were better served by the appellant being separated from the children, giving the consideration some weight against revocation.

Consideration

24    Procedural fairness requires that a person be provided a fair opportunity of being heard. What is necessary and appropriate to ensure a fair hearing depends on the particular factual and statutory context, the rules of procedural fairness being flexible and adaptable so as to be appropriate in a given case and so as to avoid practical injustice – see: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 at [26] and [29]; Saeed v Minister for Immigration and Citizenship [2010] HCA 23; 241 CLR 252 at [19]-[20]; Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; 214 CLR 1 at [37]-[38].

25    The question is: what is required in order to ensure that the decision is made fairly in the circumstances having regard to the legal framework, and the factual context, within which the decision is to be made?: Minister for Immigration and Border Protection v WZARH [2015] HCA 40; 256 CLR 326 at [30] (Kiefel, Bell and Keane JJ), read with SZBEL at [26].

26    Whilst it must depend on the particular statutory context, procedural fairness would generally require that the person affected be “given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material”: Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 293; 49 FCR 576 at 590-591; SZBEL at [32]. The Full Court in Alphaone also stated at 591E-F:

1.    The subject of a decision is entitled to have his or her mind directed to the critical issues or factors on which the decision is likely to turn in order to have an opportunity of dealing with it …

2.    The subject is entitled to respond to any adverse conclusion drawn by the decision-maker on material supplied by or known to the subject which is not an obvious and natural evaluation of that material … [Citations omitted]

and at 592B:

… The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material …

27    It is essential then to examine the statutory and factual context in order to reach a conclusion as to what procedural fairness required in the circumstances of any given case.

28    The statutory context includes the following. The Tribunal was conducting a review under s 500(1)(ba) of the Act of a decision made by a delegate of the Minister under s 501CA(4) of the Act.

29    The delegate and the Tribunal were both required, by s 499(2) of the Act, to comply with relevant directions made under s 499(1) of the Act.

30    The appellant was entitled to make representations as to why the cancellation decision should be revoked. The appellant’s representations as a whole were a mandatory consideration which the delegate was bound to take into account. The Tribunal’s role was to stand in the shoes of the original decision-maker and make the correct or preferable decision on the material before it. The material before the Tribunal was necessarily different to the material before the delegate and included the evidence given before the Tribunal. It was for the Tribunal to determine for itself what findings to make by reference to the evidence before it. The Tribunal was not bound by any particular findings made by the delegate. The review was a review of the decision, not a review of the delegate’s reasons for decision. In short, the Tribunal was required to do over again what the delegate had done, but to do so on the material before the Tribunal.

31    The review was a review under s 500(1)(ba) of the Act. The review was not a review under either Part 5 or Part 7 of the Act: s 500(4)(b). In conducting the review under s 500(1)(ba), the Tribunal had to afford procedural fairness. The Act did not expressly provide that the Tribunal had to invite the appellant “to give evidence and present arguments in relation to the issues arising in relation to the decision under review” – compare: s 360(1); s 425(1); and SZBEL (concerning a Part 7 review). However, this distinction is not significant, at least in the context of this case. The Tribunal was required to ensure that the appellant was given a reasonable opportunity to present his case: s 39(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act); Nathanson v Minister for Home Affairs [2022] HCA 26; 276 CLR 80 at [7]. Of course, s 39(1) of the AAT Act must be read with relevant provisions of the Migration Act 1958 (Cth), including s 500.

32    It was the Tribunal’s statutory function to form its own view as to the correct or preferable decision and, in undertaking that task, it was legitimate for the Tribunal to be guided by the parties as to the salient issues and to accept relevant admissions: Perpetual Trustee Company (Canberra) Ltd v Commissioner for Australian Capital Territory Revenue [1994] FCA 367; 50 FCR 405 at 418-419. Of course, the Tribunal cannot permit the parties to place it in the position of deciding a case on an artificial or inadequate basis: Comcare v Fiedler [2001] FCA 1810; 115 FCR 328 at [39]-[40]. However, that is not the issue here.

33    The issues before the Tribunal are framed by the statutory scheme, by the course of the anterior administrative decision-making process, and by the course of the proceeding on review. The content of what is required to ensure procedural fairness is necessarily framed by those matters because they form the factual context within which the decision is made. In SZBEL at [26], the High Court stated:

It has long been established that the statutory framework within which a decision-maker exercises statutory power is of critical importance when considering what procedural fairness requires.  It is also clear that the particular content to be given to the requirement to accord procedural fairness will depend upon the facts and circumstances of the particular case …

34    The factual context is as follows.

35    First, the appellant was represented before the delegate. The appellant was also represented before the Tribunal, but by different representatives.

36    Secondly, before the delegate, a reasonable person in the appellant’s position must be taken to be aware that the delegate was bound to consider and reach a view about whether revocation of the cancellation was, or was not, in the best interests of the children.

37    Thirdly, upon receiving the delegate’s decision, a reasonable person in the appellant’s circumstances must be taken to have known that the Tribunal would have to reach its own view about the best interests of the children and that this view would need to be about whether the best interests of the children favoured, or did not favour, revocation.

38    The appellant could not have assumed that a Tribunal, on review, would reach the same conclusion as the delegate. That was particularly so in circumstances in which the delegate had highlighted their concern about “the prospect of [the appellant] relapsing into alcohol abuse”. At this point in time, the “best interests of the children consideration” was in issue: it would need to be considered by the Tribunal and the Tribunal might or might not reach the same conclusion as the delegate, a matter which would depend on the material before the Tribunal.

39    Fourthly, the parties addressed the “best interests of the children consideration” in their SFICs.

40    Under the heading “Issues for determination” and the sub-heading “Primary Consideration 4: Best interests of minor children in Australia affected by the decision”, the appellant’s SFIC stated (AB360):

[37]    The Applicant Mr Korat has two minor children in Australia who are affected by the decision:

•    [T], aged 15; and

•    [M], aged 9.

Application of the law to the facts

[38]    The Applicant is expected to play a leading role in his family and to provide guidance to his children, despite his past conduct. We contend that it would be more difficult for him to fulfil this role if he is not living in Australia.

[39]    The Applicant has played a significant role in the upbringing of his children. They have maintained contact with him in prison and immigration detention. They will be adversely affected by the permanent absence of their father. While this cannot be quantified, the Tribunal can apply "common sense and human experience" in making the finding that a father giving a positive role model and support to children is of assistance to them all their life.

[40]    We contend it is in the best interests of the Applicant's children that the cancellation of his visa be revoked. Accordingly, we contend that Primary Consideration 4 weighs strongly in favour of revocation.

41    The Minister’s SFIC, dated 23 May 2023, relevantly included (AB499):

[43]    The Tribunal must make a determination about whether refusal is in the best interests of minor children in Australia affected by the decision: 8.4(1). This primary consideration only applies with respect to children under 18 years old at the time of the decision to refuse the applicant's visa: 8.3(2).

[44]    The applicant has two children, [T] and [M] … The applicant claims that it would be difficult for his children to adapt to life in India if his visa cancellation is not revoked … and [T] has provided a letter in which she states that she would like her father to be a part of her small family … The Minister contends that there is limited evidence in respect of the applicant's relationship with his children and the evidence further suggests that the applicant has spent a significant amount of time away from his children, in particular [M] …

[45]    In any case, the Minister notes that in circumstances where the cancellation of the applicant's visa will not cause the children to be separated from their father as they will return to India with him …, the Minister contends that, should the Tribunal find this consideration weighs in favour of revocation, it should be given limited weight.

42    The issue was further addressed in the appellant’s Further Statement of Contentions (FSC), dated 30 May 2023: AB374. In this document, the appellant emphasised that his wife “has given evidence [that] she has no intention of taking the children to India” and contradicted the Minister’s submission that the appellant “will be returning to India with his wife and children”. The FSC included:

We contend this means Mrs Korat and the children cannot easily relocate to India, as the Respondent states they will. Further, Mrs Korat has given evidence she has no intention of taking the children to India. Her statement of 21 April 2021 [G19, 105] was that she was thinking about it and had discussed with the children, but there were many hardships and the children were against the idea. There was no certainty in a decision to return to India, as the Respondent has characterised.

In Mrs Korat's statutory declaration, dated 29 May 2023, she states she will not go and live in India. Her opinion is confirmed by her children who have either been born here or spent the vast majority of their life here and do not want to live in India. The Respondent states that Mr Korat "will be returning to India with his wife and children", but this contention is not based on any credible evidence and should be withdrawn.

43    The FSC contained a lengthy quote from Ms Korat’s statutory declaration.

44    It is relevant to observe that, at this point in time:

(a)    there was no “concession” by the Minister that the “best interests of the children consideration” weighed in the appellant’s favour – whether or not it did remained a question for the Tribunal;

(b)    the Minister did not positively contend that the “best interests of the children consideration” weighed against revocation or, more specifically, that it weighed against revocation on the basis of the appellant’s domestic violence and alcohol misuse;

(c)    the principal issues as defined by the parties were: (a) the question of whether or not Ms Korat (and consequently the children) would relocate to India; and (b) what weight should be given to the consideration assuming it weighed in favour of revocation; and

(d)    notwithstanding the defining of the issues by the parties in this way – and leaving aside what procedural fairness might require – it was a theoretically available outcome that the Tribunal would conclude, on the material ultimately before it, that the “best interests of the children consideration” weighed against revocation.

45    A further observation is apposite. If the Minister had positively contended that the “best interests of the children consideration” weighed against revocation on the basis of a future risk of alcohol misuse and associated violence, then the appellant is likely to have addressed that contention by evidence and submissions. Read fairly, the Minister’s case was that: (a) Ms Korat would return to India if the revocation was not cancelled; and (b) the “best interests of the children consideration”, if it weighed in favour of revocation at all because of the fact that the family would be together in India, should be given little weight.

46    Fifthly, at the Tribunal hearing, the appellant gave evidence that his wife would be unable to return to India for reasons including the impact on the children’s studies: AB609. Ms Korat confirmed in her oral evidence: “We are not going back. If [Mr Korat] is going to be sent there, we are not going back to India at all”: AB652 lines 34-35. She confirmed her view that it was in the children’s best interest for the appellant to remain in Australia: AB654 lines 19-23.

47    Ms Korat was cross-examined. Part of the cross-examination related to whether Ms Korat thought the appellant might continue drinking in the community and whether she was aware that the appellant had drunk alcohol in immigration detention (about which she was aware): AB659-660. A substantial part of the cross-examination related to whether or not Ms Korat would return to India: AB660-663.

48    Consistently with the Minister’s SFIC, it was not put to the appellant in cross-examination that the best interests of the children would be served by the appellant being in India whilst Ms Korat and the children were in Australia or that the reason for that lay in the risk of continued alcohol abuse and the consequent potential for violence.

49    To put the matter another way, it was not suggested to Ms Korat that, because of the appellant’s alcohol misuse and the risk that it would continue, with the associated risk of violence, it was in the best interests of the children to be separated from their father. That is in no way intended as a criticism of the Minister’s representative. The cross-examination was consistent with the case as articulated by the Minister in his SFIC which did not make such a contention.

50    At the conclusion of the cross-examination, the Tribunal asked questions of its own. The Tribunal began by stating to Mrs Korat:

Ms Korat, I have to make a decision based on the law, and there is a particular direction where I have to turn my mind to certain factors in that direction. A very important consideration for me is the interest of children, obviously.

51    The Tribunal then posed questions including the following two, set out in the Tribunal’s reasons at [110] which has been extracted above:

It has been established that Mr Korat has a criminal history. One of them involved domestic violence against you personally. Do you think a person who is capable and has been convicted of domestic violence is a good role model for their children?

…

Substance abuse, is that a good role model for the children?

52    The Minister submitted to this Court that these questions, in the context of the statutory scheme and what had come before, fairly put the appellant on notice that the Tribunal might take the view that the best interests of the children consideration might weigh against revocation.

53    The appellant contended that they did not. The appellant observed that these questions engaged only some of the factors set out in paragraph 8.4(4) and, in any event, did not go so far as to indicate that there was a concern that the consideration might weigh against revocation as opposed to going to the weight of the consideration in favour of revocation.

54    Having regard to the conduct of the proceedings to this point, these questions did not fairly raise with the appellant the issue that the appellant’s alcohol misuse and the risk that it would continue with the associated risk of violence, meant that it was in the best interests of the children to be separated from their father. The questions would fairly have been understood, in context, as going to the weight to be given to the “best interests of the children consideration” in favour of revocation. The context includes the delegate’s decision and the way the parties had, to the knowledge of the Tribunal, framed their cases.

55    Sixthly, in closing (oral) submissions the appellant contended that the best interests of the children weighed “heavily in favour of revocation”: AB670 lines 44-45.

56    The Minister submitted (AB673 lines 16-34):

In respect of the best interest of the minor children, the Minister notes the evidence before the tribunal that the applicant's wife would choose to remain in Australia with the children. The Minister contends that such evidence should be approached with some scepticism noting that the applicant and his wife have both confirmed it would be culturally inappropriate for them to live apart and this decision would result in them being separated. The Minister further notes that while evidence has been provided that the applicant's wife and children will likely surrender their Indian passports, having gained Australian citizenship, no evidence has been provided in respect of how this would impact their right to residency in India.

In the absence of evidence which indicates the applicant's wife and children would be unable to return to India, the Minister contends that it remains open to the applicant's wife and children to return to India with the applicant, should they choose to.

However, should the tribunal find that the applicant's wife and children would remain in Australia, the Minister accepts this consideration would weigh in favour of revoking the applicant's visa cancellation.

57    The interpreter then asked: “Sorry, would you mind repeating that?”, to which the Minister’s representative responded (AB 673 lines 38-39):

The Minister would accept that this consideration would weigh in favour of revoking the applicant’s visa cancellation.

58    In other words, the Minister invited the Tribunal to conclude that Ms Korat would return to India in the event that a decision was made not to revoke the cancellation decision, but took the position that, if the Tribunal were to find that Ms Korat and the children would remain in Australia in that event, then – on the basis of the material which was before the Tribunal – the best interests of the children weighed in favour of revocation. There was no contention by the Minister that the consideration should be found to weigh against revocation on the basis of the risk of future alcohol abuse and associated violence or otherwise.

59    Assessing the course of proceedings fairly, and recognising that the proceedings are not strictly (but are in many ways practically) adversarial, the parties had not fought the case on the basis that the appellant’s alcohol problems, and the risk of associated violence, were such that the best interests of the children lay in the children being separated from their father.

60    If the Minister had raised a positive contention that the “best interests of the children consideration” weighed against revocation in closing submissions, or if the Tribunal had informed the appellant that it might not accept the Minister’s concession (cf: SZBEL at [47]), there can be no serious doubt that the appellant would have responded in reply submissions. The response may have been that this contention was not in the Minister’s SFIC or cross-examination, that the appellant was prejudiced by it, and that the appellant wished to be heard further on it, including by adducing further evidence or making submissions in reply.

61    The Tribunal had asked Ms Korat questions relevant to the “best interests of the children consideration”, but the Tribunal had not directly put to a witness, or raised as an issue with the appellant, that the “best interests of the children consideration” might weigh against revocation as opposed to a matter: (a) going to how strongly the matter weighed in the appellant’s favour; or (b) neutralising it as a matter in the appellant’s favour. The Tribunal did not raise the issue during submissions.

62    It is true, as the Minister submitted, that there was no obligation on the part of the Tribunal to provide a running commentary or to expose its mental processes or provisional views to comment before making the decision: SZBEL at [29]; Alphaone at 591-592. But that is not the issue. In light of the course of the proceedings, practical injustice could only be avoided if the appellant were provided an opportunity to address the issue which the Tribunal ultimately found against the appellant. This was not an issue put forward by the parties, it was not an issue which the Tribunal squarely raised, and it was not an issue which was obvious given the course of the administrative decision-making process and the course the proceedings had taken.

63    The denial of procedural fairness deprived the appellant of a realistic possibility of a different outcome: Nathanson at [1]. There will generally be a realistic possibility that a decision-making process could have resulted in a different outcome if a party was denied an opportunity to present evidence or make submissions on a critical issue: Nathanson at [33]. That general proposition applies here. The Tribunal heard no argument (from either party) about why the “best interests of children consideration” should not weigh against revocation. The Tribunal’s reasoning is not without difficulty. If the Tribunal had provided an opportunity for submissions on the topic, it may have reasoned in a different way and to a different outcome. If the Tribunal had concluded that this consideration weighed in favour of revocation, then the ultimate result necessarily might have been different: FCFY v Minister for Home Affairs (No 2) [2019] FCA 1990 at [65].

Conclusion

64    Ground 1 should be allowed. The primary judge was not shown to have made any error, but if the grounds of judicial review run on appeal had been run before the primary judge, then the appellant would have established jurisdictional error on the part of the Tribunal.

GROUND 2

Introduction

65    It is not strictly necessary to address Ground 2. Nevertheless, it is addressed briefly below.

66    Ground 2 was as follows:

2.    The Tribunal’s decision is affected by jurisdictional error because it misunderstood para 9.3 of Direction 99 and/or failed to afford procedural fairness in respect of this consideration.

Particulars

a)    Paragraph 9.3 of Direction 99 is directed at the impact of the 501CA decision on the victim(s), rather than the impact of the offending itself, and concerns the impacts on members of the Australian community caused by a decision that will result in the non-citizen either remaining in, or being removed from, Australia.

b)    The only evidence relating to the impact on victims in this case was from the Appellant’s wife.

c)    The Minister’s representative submitted “it’s the Minister’s understanding that the impact of the offending itself would come under the protection of the community and/or the family violence consideration. The Minister would accept that the applicant’s wife, who was a victim, has given evidence that should the applicant’s visa remain cancelled this would have an adverse impact on her”: AB674 lines [1] – [8].

d)    Despite this submission, the Tribunal misunderstood this aspect of the Direction and conflated the impact of the decision and the impact of the offending in finding the ‘impact on victims’ consideration under paragraph 9.3 of Direction 99 weighed against revocation despite the Appellant’s wife’s evidence that a non-revocation decision would have an adverse impact upon her: AB 535 – 536 at [129] – [133].

e)    Further and in the alternative, the Tribunal did not advise of the adverse conclusion that the ‘impact on victims’ consideration weighed against revoking the cancellation, which constituted a denial of procedural fairness.

67    Paragraph 9.3 of Direction 99 (the “impact on victims consideration”) provides:

9.3    Impact on victims

(1)    Decision-makers must consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.

The Tribunal’s decision

68    Before addressing paragraph 9.3 of Direction 99, the Tribunal considered paragraph 8.2 of Direction 99 (the “family violence consideration”).

69    In the context of considering paragraph 8.2, the Tribunal concluded that the family violence was very serious and had been traumatic for Ms Korat. Its reasons included:

[86]    Ms Korat gave evidence of her unequivocal support for the Applicant. The Tribunal does not consider Ms Korat's support to be undermining of the seriousness of the Applicant's offending conduct; she recognises the seriousness, as she articulated in the course of the hearing. The Tribunal is satisfied that the cumulative impact of the repeated acts of violence has been traumatic for Ms Korat.

[87]    It is trite to say that domestic violence is serious. Australia is home for millions of people, and the legal expectations apply to all. The circumstances of this case involve the misuse of alcohol. As noted earlier, the Court referred to the link between alcohol, mental health and domestic violence. However, that link does not reduce the seriousness of the family violence committed in this case. The second offence occurred shortly after the first one, raising legitimate concerns. The Tribunal considers the Applicant's conduct in relation to the family violence to be very serious and reflect the magnitude of the Applicant's criminal conduct.

70    In considering paragraph 9.3, the Tribunal stated:

Impact on victims

[129]    The Direction requires decision-makers to consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen's criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.

[130]    Ms Korat has been a victim of the Applicant's domestic violence offences. Although she gave evidence about the impact of being a victim of domestic violence, this consideration relates to the question of the impact of the section 501 or 501CA.

[131]    It is fair to say that non-revocation would cause Ms Karat a degree of hardship, including financial, personal, and psychological hardship. Non-revocation could potentially mean that she has to continue to rely on her own personal resourcefulness to meet her financial and parental obligations. However, this needs to be moderated by the fact that she was the victim of the family violence perpetrated by the Applicant.

…

[133]    On balance, the Tribunal gives this consideration some weight against revocation.

71    In summary, the Tribunal:

(a)    identified Ms Korat as a victim of the appellant’s offending and had regard to the evidence she gave about the impact of being a victim of domestic violence;

(b)    expressly acknowledged at [130], that paragraph 9.3 of Direction 99 was directed to the impact of visa cancellation, not to the impact as a consequence of being a victim of family violence;

(c)    acknowledged that paragraph 9.3 related to the question of the impact of the visa cancellation on members of the Australian community including victims of the non-citizen’s offending behaviour; and

(d)    gave the consideration some weight against revocation.

Summary of the appellant’s case

72    The appellant submitted that:

(a)    the Tribunal misunderstood paragraph 9.3 and conflated a consideration of the impact of removal in paragraph 9.3 with the impact of the offending itself; and

(b)    as a result, “reduced the impact of a non-revocation decision on the appellant’s wife because she was a victim of family violence and weighed the consideration against revoking the mandatory visa cancellation” : AS[33].

73    The appellant submitted that the Tribunal also failed “to advise [the appellant] of the adverse conclusion that the “impact on victims consideration” weighed against revoking the cancellation”, referring to Alphaone at 591 – 592: AS[34]. It was submitted that the “Tribunal’s finding that the consideration should weigh against the appellant was completely unexpected”. It was submitted that the Tribunal’s conclusion was not obviously open in light of:

    the terms of paragraph 9.3 of Direction 99;

    Ms Korat’s evidence that she would be adversely affected by the appellant’s removal to India; and

    the Minister’s statement at the end of closing submissions (AB674 lines [1] – [8]), namely:

This consideration is the impact of the decision on the victims and it’s the Minister’s understanding that the impact of the offending itself would come under the protection of the community and/or the family violence consideration. The Minister would accept that the applicant’s wife, who was a victim, has given evidence that should the applicant’s visa remain cancelled this would have an adverse impact on her.

74    The appellant submitted that, if he had been on notice that the Tribunal might reason in the way it did, he could have made submissions as to how the consideration ought to be weighed.

75    Accordingly Ground 2 raises two issues:

(a)    whether the Tribunal misunderstood paragraph 9.3; and

(b)    whether there was a denial of procedural fairness.

76    In either case, it was submitted that the error materially affected the decision because the outcome might have been different: AS[35].

Consideration

77    The parties referred to Manebona v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 116; 298 FCR 516. At [133]-[137], the Full Court stated (italicised emphasis in original; underlined emphasis being the appellant’s emphasis):

[133]    We are respectfully unable to agree with the primary judge’s construction of para 9.3(1) as applying only to the impact on a victim of the perpetrator remaining in Australia, and excluding consideration by a decision-maker of the impact upon a victim of an offender being removed from Australia. The narrowness of that construction is inconsistent with the broad language of the paragraph and with the wider context of Direction 99 and the statutory scheme.

[134]    Paragraph 9.3(1) requires that decision-makers must, “consider the impact of the section 501 or 501CA decision on members of the Australian community”. The members of the Australian community are explained to include, but are not confined to, “victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims”. The paragraph does not in its terms confine the “impact” that must be considered to consequences for members of the Australian community of the perpetrator remaining in Australia, and extends to consequences for members of the Australian community of the perpetrator being removed from Australia. The word “impact” is not limited to beneficial impacts for members of the Australian community of removal of the offender from Australia, but is apt to include adverse impacts upon them of such removal. In addition, the paragraph requires that what must be considered is, “the impact of the section… 501CA decision” without distinguishing between a decision to revoke the s 501(3A) cancellation decision and a decision not to revoke. Therefore, impacts on members of the Australian community caused by a decision that will result in the offender either remaining in Australia or being removed from Australia fall to be considered under para 9.3(1).

[135]    The primary judge’s construction of para 9.3(1) must mean either that impact on members of the Australian community of removal of an offender from Australia cannot be considered by a decision-maker; or that impact on members of the Australian community other than victims can be considered. Neither of those views is supported by the language of para 9.3(1), nor by the broader context.

[136]    In a given case, some members of the Australian community may be adversely affected by a decision allowing an offender to remain in Australia, while others may be adversely affected by the offender being removed. There is no obvious reason why the Minister, in making the direction contained in para 9.3(1), would intend that only the former, and not the latter, be considered under para 9.3(1).

[137]    Direction 99 introduced a primary consideration of, “whether the conduct engaged in constituted family violence”. Paragraph 8.2(1) states that the government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia, while 8.2(3) sets out a number of factors relevant to consideration of the seriousness of the family violence engaged in. By the inclusion of para 9.3(1), the Minister must be understood to have recognised that an offence resulting in cancellation of a visa under s 501(3A) of the Act may well involve family violence, and that victim will often be an offender’s spouse or partner. The Minister can also be understood to have recognised that members of the Australian community may be adversely impacted when an offender is removed from Australia, including in situations of family violence. For example, para 8.3 expressly accepts that it may be in the best interests of an offender’s minor children for the offender to remain in Australia. A victim of a crime, including a victim of family violence, may also consider their own best interests to be served by the offender remaining in Australia, including for emotional or financial reasons. It would be anomalous to treat para 9.3(1) as though it requires a decision-maker to disregard the opinion of a victim that they would be adversely affected by the removal of an offender from Australia.

78    As the Full Court held in Manebona at [137], paragraph 9.3 is not to be interpreted as requiring a decision-maker to disregard the opinion of a victim who says they would be adversely affected by the removal of an offender from Australia.

79    Paragraph 9.3 does not operate in the same way as paragraph 8.5 of Direction 99 (“Expectations of the Australian community”). Paragraph 8.5 sets out the Commonwealth Government’s view of the community’s expectations as a norm which would weigh against revocation of a visa cancellation where a person has engaged in serious conduct in breach of the community’s expectation that they obey Australian laws, or there is an unacceptable risk they will do so – see: FYBR v Minister for Home Affairs [2019] FCAFC 185; 272 FCR 454.

80    Contrary to the appellant’s submission, the Tribunal did not interpret paragraph 9.3 as requiring it to disregard Ms Korat’s evidence about the adverse impact on her of a decision that would require the appellant to leave Australia: [131] of the Tribunal’s reasons. Nor did the Tribunal fail to take into account Ms Korat’s evidence that she supported the appellant and wished for him to remain in Australia. The Tribunal took into account Ms Korat’s evidence in addressing the appellant’s ties to Australia for the purposes of paragraph 8.3 of Direction 99: at [96] and [98]. It took into account Ms Korat’s evidence as a victim when it considered the family violence consideration: at [85] and [86]. The Tribunal was not required to repeat its consideration of those matters when dealing with Ms Korat’s interests as a victim: Bale v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 646 at [26].

81    The Tribunal did not commit the error identified by the Full Court in Manebona at [133]. In Manebona, the primary judge had treated the impact on victims as being limited to a consideration of the consequences for a victim if the visa cancellation were revoked. Here, the Tribunal recognised that a non-revocation decision would impact Ms Korat, amongst other things, in relation to financial and parental obligations. Despite this, the Tribunal gave the consideration weight against revocation having regard to the appellant’s family violence offending. There is no error in this approach, provided one does not read the last sentence of the Tribunal’s reasons at [131] as being confined to the consideration referred to in paragraph 8.2 of Direction 99 (“Family violence committed by the non-citizen”). Whilst [131] could be read that way (hence Ground 2 of the appeal), understood in the context of the reasons as a whole, the preferable interpretation is that the Tribunal was also concerned about the risk of violence arising in the future.

82    On this understanding of [131] of its reasons, the Tribunal did not conflate the impact of the removal decision with the impact of the offending itself.

83    There was no error in the Tribunal taking into account both the adverse impact of the appellant’s removal from Australia as well as the adverse impact of the appellant remaining in Australia. The Full Court in Manebona did not state or imply that it is not open to a decision-maker, in applying paragraph 9.3, to take into account evidence about the impact on the victim and reach a conclusion that the consideration weighs against revocation.

84    There was no breach of procedural fairness. There was nothing in the course of the decision-making process or the way in which the proceedings were conducted which required the Tribunal to raise with the appellant that the “impact on victims consideration” in paragraph 9.3 might weigh against revocation. The parties had not made any particular contentions on the point and the Tribunal’s conclusions (properly understood) were an obvious possibility on the known material.

85    It follows that the issue of materiality does not arise. Had materiality been at issue, the errors would have been shown to be material because there would have been a realistic possibility that the decision-maker could have reached a different conclusion: – see: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12 at [7]; Nathanson at [1]. This is because the consideration may have been found to weigh in favour of revocation and this, in turn, may have led to a different balancing of the competing considerations in reaching a conclusion about revocation: FCFY at [65].

CONCLUSION

86    The appeal should be allowed on the basis of Ground 1.

Associate:

Dated:    24 May 2024