Federal Court of Australia

Titoa v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 163

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs to be taxed if not agreed.

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

REASONS FOR JUDGMENT

THE COURT:

1.    INTRODUCTION

1    This appeal raises the question of whether or not the Administrative Appeals Tribunal failed to make a determination as to the best interests of minor children in accordance with Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction 90) (a direction made under s 499(1) of the Migration Act 1958 (Cth)) and, if it did, whether that error was material to the conclusion that the cancellation of the appellant’s visa pursuant to s 501(3A) of the Migration Act should not be revoked.

2    The appellant is a citizen of New Zealand who has held a Class TY subclass 444 special category visa since moving to Australia at the age of 9 in February 2004. On 7 September 2021, a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs cancelled his visa pursuant to s 501(3A) for failure to pass the character test (as defined by s 501(6) of the Migration Act) as a result of being sentenced to two years’ imprisonment following convictions on several counts of break and enter. The appellant sought revocation of that decision. On 28 March 2022, a delegate of the Minister declined to do so. On 21 July 2022, the Tribunal affirmed the decision of the delegate.

3    The appellant then sought judicial review of the Tribunal’s decision in this court relying on three grounds, only one of which is relevant to the current appeal, namely that the Tribunal failed to make a determination as to whether revocation of the visa cancellation was in the best interests of minor children in Australia. That ground was dismissed by the primary judge on the basis that, whilst the Tribunal failed to make a relevant determination, that error was not material within the principles enunciated in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; 98 ALJR 610 at [7], [14], [16] (per Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ, Beech-Jones J agreeing at [38]): Titoa v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 605 at [45] (per Meagher J).

4    The appellant appeals from that decision. He advances the following grounds:

(1)    The primary judge erred in finding at [45] that the Tribunal’s failure to make a determination about whether or not non-revocation of the appellant’s visa was in the best interests of the minor children it had identified could not realistically have changed the Tribunal’s decision.

(2)    The primary judge erred in finding at [58] that the Tribunal did not fail to undertake a proper evaluative exercise of balancing the relevant considerations under Direction 90 when forming its conclusion.

5    The Minister relies on a notice of contention to the effect that the primary judge ought to have dismissed the application for review on the additional basis that the Tribunal did in fact make a determination about whether non-revocation was in the best interests of minor children.

6    For the reasons set out below we consider that the notice of contention must succeed. The consequence is that the grounds raised in the notice of appeal do not arise. The appeal must be dismissed with costs.

2.    DIRECTION 90 AND THE MIGRATION ACT

7    Section 499(1) of the Migration Act allows the Minister to give written directions to a person or body having functions or powers under the Act if the directions are about the performance of those functions or the exercise of those powers. Section 499(2A) requires a person or body to “comply with a direction under subsection (1)”.

8    Direction 90, which commenced on 15 April 2021, provides directions for the making of decisions under ss 501 and 501CA of the Migration Act. Direction 90 has since been superseded by Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA, which commenced on 3 March 2023, but Direction 90 remains relevant to the present case.

9    Paragraph 8 of Direction 90 identifies four primary considerations that the decision maker must take into account, the third of which is presently relevant, namely “the best interests of minor children in Australia”.

10    Paragraph 8.3 of Direction 90 provides:

(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.

3.    THE NOTICE OF CONTENTION

11    Ground one before the primary judge concerned the contention of the appellant that the Tribunal failed to make a determination under paragraph 8.3(1) of Direction 90 as to whether revocation of the visa cancellation was in the best interests of minor children in Australia, and thereby erred in its consideration of the third primary consideration in Direction 90.

12    The primary judge accepted the appellant’s submission that at no point did the Tribunal make any express determination about whether or not revocation of the cancellation decision was in the best interests of the children. Her Honour then turned to whether on a fair reading of the decision it could be said that an implied determination to that effect was made. She concluded that it had not, distinguishing the reasoning in Mailau v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 610 (per Burley J). The primary judge found:

41.    …In this case, while the Tribunal stated that the consideration militated slightly in favour of a finding that it is in the best interests of the children that the visa cancellation be revoked, it did not actually come to a definitive conclusion. This is an important distinction because at no point in its decision does the Tribunal state whether or not it is in the children's best interests that the applicant's visa cancellation be revoked. There is no doubt that the Tribunal undertook a detailed consideration of the evidence before it, however, I am not satisfied that a determination was actually made.

42.    Further, I have difficulty in accepting that a determination was implicitly made. One might accept that the Tribunal was satisfied that it was in the children’s best interests that the visa cancellation decision be revoked by its attribution of "moderate" weight in favour of revocation, however such weight attribution does little to assist in implicitly gleaning how or why the Tribunal might have determined that. Merely providing the weight attributed to the primary consideration, and stating this conclusion was reached having "regard to the relevant and applicable factors in paragraph 8.3 of the Direction" does little to assist. I am satisfied that the Tribunal therefore erred in that regard.

13    In support of his notice of contention, the Minister contends that it is apparent from reading the decision of the Tribunal as a whole that it implicitly determined that it was in the best interests of the children that the appellant remain in Australia, and that this is apparent from its reasoning to the outcome that primary consideration weighed moderately, but not determinatively, in favour of revocation.

14    The appellant submits that the court should proceed on the basis that if the Tribunal did not state a finding, it did not make the finding, citing GCRM v Minister for Immigration. Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 678; 170 ALD 319 at [28] (per Jackson J). He submits that it is not enough for the decision-maker to have regard to the best interests of each minor child, rather, it must first make a determination about whether cancellation is, or is not in the best interests of each child and then proceed to the balancing and weighing exercise, citing Paerau v Minister for Immigration and Border Protection (2014)] FCAFC 28; 219 FCR 504 at [54] (per Barker J). While the appellant accepts that a decision maker may impliedly make a determination, he submits that in the present case the primary judge was correct to conclude that the Tribunal did not do so.

15    In our respectful view the primary judge erred in concluding that no determination had been implicitly made.

16    The reasoning of the Tribunal on this question is set out at [93]–[133]: Titoa and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 2329 (per Senior Member Tavoularis, Member Benjamin). After stating the requirement that a determination be made and setting out the list of factors to be considered in paragraph 8.3(4) of Direction 90, the Tribunal proceeded to identify all of the relevant minor children and the parties’ respective contentions in relation to the applicability of the factors. There was no suggestion before the primary judge that the Tribunal omitted to mention or identify the relevant children to take into account, who consisted of four identified individuals and some 22 other nieces and nephews under 18 years of age (at [95]–[97]).

17    In summarising the submissions before it, the Tribunal at [101], noted the submission of the Minister at [51] of the Statement of Facts, Issues and Contentions:

Notwithstanding the above, the Respondent accepts that the best interests of the Applicant’s niece(s) and nephew(s) may be assumed to be best served by the Applicant’s remaining in Australia. …

(emphasis added)

18    The debate between the parties thereafter concerned the weight to be given to this consideration, the Minister contending that only “some particular weight” should be given to it (at [102]) and the applicant submitting that the consideration deserved “significant weight” (at [103]).

19    It is apparent from the submissions so recited that the parties before the Tribunal accepted that a determination must be made in favour of this primary consideration and that the only disputed question for the Tribunal was one of weight.

20    After reciting aspects of the parties’ submissions, the Tribunal proceeded to consider in some detail the applicant’s oral evidence and the evidence of six other witnesses, all of whom addressed aspects of the relationship between the applicant and the minor children. In [122]–[131], the Tribunal methodically addressed each of sub-paragraphs (a) to (h) identified in paragraph 8.3(4) of Direction 90. In relation to factors (a) (at [123]), (d) (at [127]) and (f) (at [129]) the Tribunal uses language that might be suggestive that the Tribunal was debating whether or not to make a determination. For instance, at [123], in relation to (a), the Tribunal concludes “[t]his sub-paragraph (a) militates slightly in favour of a finding that it is in the best interests of the four children of Janice Laauli Palupe (including EJ) and the twenty-two “other” nieces and nephews for the Applicant’s visa being restored to him”. However, for the balance of the sub-paragraphs, the Tribunal refers to assessments of weight, each time indicating whether or not weight should be assigned to the factor and determining what that should be.

21    Taken as a whole, we consider that, despite slightly inconsistent wording, the Tribunal was striving to allocate a weight to each of the factors it was required to take account of, having accepted the mutual position of the parties that the determination under paragraph 8.1 was in favour of revoking the decision to cancel.

22    This is particularly apparent from the Tribunal’s conclusion at [133]:

We have had regard to the relevant and applicable factors in paragraph 8.3 of the Direction as those factors relate to each of the relevant children captured by the auspices of this Primary Consideration 3. Having regard to the totality of the evidence and whatever cumulative strength can be found for that evidence upon application of the relevant sub-paragraphs in paragraph 8.3(4) of the Direction, we find that this Primary Consideration 3 weighs at best, moderately, but not determinatively in favour of revoking the decision to mandatorily cancel this applicant’s visa.

23    The primary judge concluded at [41] that while the Tribunal stated that the consideration militated slightly in favour of a finding that it is in the best interests of the children that the visa cancellation be revoked, it did not come to a definitive conclusion and, at [42], that no such determination was implicitly made.

24    However, in our respectful view it is apparent from the reasons of the Tribunal as a whole that the premise for its conclusion at [133] was that each of the factors considered in the preceding paragraphs led to the attribution of moderate weight in the decision. Indeed, a conclusion as to moderate weight assumes that a determination in favour of the applicant has been made, a matter that the parties did not dispute before the Tribunal. This accords with the approach taken in other decisions of this court including Mailau (upheld on appeal, although the point was not considered); Spruill v Minister for Immigration and Citizenship [2012] FCA 1401; 135 ALD 45 (per Robertson J) at [18]; Minister for Immigration, Citizenship and Multicultural Affairs v RGKY [2022] FCAFC 177 at [181], [200] (per Farrell, Halley JJ). Indeed, in the present case, our conclusion is supported by the fact that the parties conducted their case before the Tribunal on the mutual assumption that the Tribunal would find that this primary consideration would be determined in favour of the appellant and that the only dispute was as to the weight to be afforded it. That position is confirmed when it is noted that, at [188] of the Tribunal’s reasons, it refers to each of the primary considerations in concluding that the discretion should not be exercised in favour of revocation of the mandatory cancellation of the appellant’s visa. Included in that list is primary consideration 3 which, it says “weights, at best, moderately, but not determinatively, in favour of revocation”.

25    Contrary to the conclusion reached by the primary judge at [42], we consider that the attribution of moderate weight in favour of revocation of itself indicates that the Tribunal had determined affirmatively that this primary consideration applied on the facts before it. As the majority observed in RGKY, if it had not done so, there would have been nothing to moderate the weight of in relation to that consideration (at [181]). In our respectful view, the primary judge was distracted in [42] by questioning “how or why the Tribunal might have determined that”, which does not go to the question of whether a determination was made, but rather the adequacy of the reasoning and the correctness of the weight afforded, neither of which were before the court as grounds of appeal.

26    Accordingly, in our view the primary judge erred in concluding that the Tribunal had not made a determination. As a consequence, the occasion does not arise to consider whether or not her Honour erred in the application of the principles enunciated in LPDT and it is unnecessary to consider grounds 1 and 2 of the Notice of Appeal.

27    For the reasons given above, although we have found that the primary judge erred in one respect, the outcome of the decision remains the same, namely that the appellant’s appeal must be dismissed. The appellant must pay the Minister’s costs to be taxed if not agreed.

Associate:

Dated: 13 December 2024