FEDERAL COURT OF AUSTRALIA

Tuatara v Minister for Immigration & Citizenship [2010] FCA 1324

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The applicant pay the first respondent’s costs, as taxed or agreed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

INtroduction

1    This is an application under s 476A of the Migration Act 1958 (Cth) (‘the Act’) in respect of a decision of the second respondent (‘the Tribunal’) dated 2 July 2010. The Tribunal affirmed a decision of a delegate of the first respondent (‘the Minister’) made on 6 April 2010 to cancel the applicant’s Special Category visa under s 501(2) of the Act.

2    The Minister’s power to cancel a visa granted to a person arose in this case because the delegate reasonably suspected that the applicant did not pass the character test and the applicant did not satisfy the delegate that he passed the character test: s 501(2). There was no issue either before the delegate or the Tribunal that the applicant did not pass the character test in light of his substantial criminal record: ss 501(6) and 501(7).

3    In considering the exercise of the power to cancel, the delegate and, on review, the Tribunal, were obliged to comply with a written direction given by the Minister, Direction [no 41]—Visa refusal and cancellation under s501 (‘the Direction’): s 499(1) and (2A). The applicant contended that the Tribunal failed to comply with the Direction in two critical respects: first, in respect of relevant international obligations and, in particular, the best interests of the children relevant to the proceedings before it; and secondly, in respect of the risk that the applicant would commit further offences upon release from custody. According to the applicant, this failure means that the Tribunal did not complete the task required of it by the Act and that its decision is infected with jurisdictional error.

4    The applicant contended that the Tribunal also erred because the manner in which it dealt with the issue of the best interests of the children meant that its decision was irrational, illogical and not based on findings or inferences of fact supported by logical grounds.

Background facts

5    The applicant was born to Maori parents in New Zealand on 3 August 1972. He is now 38 and the youngest of seven children, the eldest two of whom share a different father. He migrated to Australia with his parents and siblings at the age of 14 years and 9 months. He was granted a special category visa by operation of law on 1 September 1994.

6    He has four children, aged 15, 13, 11 and 10, who live with his former wife, her partner and their child. He has not had contact with his children since 2002. His mother died of cancer in November 2008. His father lives with the applicant’s half-sister and her children in Sydney. Also in Australia are his older sister, her daughter and her three children; and his brother, his brother’s partner and their son.

7    In November 1987, eight months after arriving in Australia, the applicant was charged with break, enter and steal and placed on a good behaviour bond. He returned to New Zealand in September 1989 for 11 months during which time he was convicted of six counts of burglary. He returned to Australia in August 1990, apparently contrary to supervision orders to which he was subject at the time.

8    During his time in Australia the applicant has committed and been punished for numerous offences. He has spent a little over 5 years in gaol. His last term of imprisonment commenced on 12 January 2009 and ended on 11 October 2010. The applicant is currently in immigration detention.

9    On 6 April 2010 a delegate of the Minister made a decision to cancel the applicant’s visa under s 501(2) of the Act. On 14 April 2010 the applicant applied to the Tribunal for review of that decision. On 2 July 2010 the Tribunal made a decision to affirm the delegate’s decision.

The Tribunal’s Decision

10    The Tribunal first dealt with two issues that it considered were ‘preliminary’. The first was whether it could consider the applicant’s statement of facts, issues and contentions. It rejected the Minister’s submission that s 500(6J) of the Act applied to prevent the Tribunal from having regard to it: at [20] and [21]. The second ‘preliminary’ issue was whether the best interests of the children of the applicant’s siblings (and niece) were relevant. The Direction provides at 10.4(1) that a decision-maker must have regard to the best interests of any child in Australia who is potentially affected by a visa cancellation. It decided, at [23], that it was not necessary to determine the issue because there was ‘no significant evidence put before the Tribunal as to the extent’ of the impact of a decision on those children. The Tribunal went on to say that it gave no significant weight to the submissions made on the issue because ‘the lack of any useful evidence’ did not enable it to evaluate any such detriment: at [24]. According to the applicant, these statements reveal that the Tribunal failed to comply with the Direction and failed to understand the import of the evidence given by the parents of the children concerned.

11    The Tribunal turned to the primary considerations referred to in the Direction. The first of these was the protection of the Australian community from serious criminal or other harmful conduct. This involved consideration of (i) the nature and seriousness of the applicant’s conduct; and (ii) the risk the conduct may be repeated. The Tribunal found that the applicant had a long and consistent history of serious offences from the age of 14 and had been sentenced four times to substantial periods of imprisonment. It found that this reflected how seriously the courts have viewed his conduct: at [34].

12    The Tribunal next considered the risk that the applicant’s conduct may be repeated. It referred to evidence given by two independent experts that the prospects of the applicant’s rehabilitation were good: at [42] and [46], and that the risk of violent recidivism was low: at [46]; however, despite this evidence it found that the risk of the applicant re-offending was high. The reason given for this conclusion (at [49]) was as follows:

‘If this were the first occasion on which Mr Tuatara had undertaken a rehabilitation program, we would be more inclined to accept his chances of success. However, his long history of repeated breaches of judicial orders and undertakings, combined with his history of relapses makes the risk of re-offending, and engaging in violent conduct, unacceptably high.’

The Tribunal made no findings about the extent of rehabilitation already achieved by the applicant, (according to the evidence given by the two independent experts and the applicant himself) or the prospects of further rehabilitation. The applicant submitted that the Tribunal did not explain why it did not accept the expert evidence in this respect.

13    The Tribunal then referred to the fact that the applicant was a minor when he began living in Australia and had committed his first offence eight months after arriving here.

14    Next, the Tribunal considered the best interests of the child as described in the Convention on the Rights of the Child (‘the CROC’). After a brief survey of the relevant evidence, the Tribunal referred to the general presumption referred to in the Direction that a child’s best interests are served by remaining with both its parents. It then stated at [61]:

‘There must be some basis on which a child’s best interests can be determined [if] it can be said that contact with a parent is in its best interests. The eight year period in which Mr Tuatara has not seen his children represents a large part of their lives and no significant evidence as to their best interests has been adduced on his behalf.’

15    Later, in its conclusion, the Tribunal expanded upon this statement at [74]):

[W]e are not satisfied, on the evidence before the Tribunal that the best interests of Mr Tuatara’s children, or other children to whom he is related, require that he remain in Australia. His relationship with his children has been virtually non-existent for eight years and there is no evidence that their best interests would be served by him remaining in the country or, even, that he will be able to see them in future if he does.’

16    The Tribunal next considered other matters including the applicant’s family ties, his links to New Zealand, and the fact that he had previously been advised of the possibility of deportation.

17    In its conclusion, the Tribunal stated that it was not satisfied that any other considerations outweighed the risk of harm (to the Australian community): at [74]. For that reason, it affirmed the decision under review.

The Applicant’s Case on Appeal

First ground: Failure to comply with Direction 41

18    The Direction requires that, in each case, the Tribunal must take into account four primary considerations. Those considerations are set out in paragraph 10 of the Direction. Further directions are given in respect of each primary consideration in paras 10.1 to 10.4. The facts before the Tribunal suggested that the critical issues arose from the first and fourth of the primary considerations, namely, the protection of the Australian community and the relevant international obligations. Those considerations are as follows:

10(1)    In deciding whether to refuse to grant a person a visa or cancel a person’s visa, the following (the primary considerations) are to be considered:

(a)    the protection of the Australian community from serious criminal or other harmful conduct, particularly crimes involving violence;

…

(d)    relevant international obligations, including but not limited to:

(i)    the best interests of the child, as described in the Convention on the Rights of the Child (CROC); and …’

19    According to the applicant, the Tribunal erred in respect of both considerations. It is convenient to deal first with the international obligations under the CROC.

The best interests of the child

20    The applicant submitted that the relevant interests are not simply ‘the best interests of the child’, but rather, ‘the best interests of the child, as described in the Convention of the Rights of the Child’. This, together with the express reference to ‘relevant international obligations’, makes it clear, according to the applicant, that the Direction seeks to implement the terms of the CROC.

21    Thus, the Direction requires, according to the applicant, attention not simply to a broad and indefinite notion of best interests, but to the terms of the CROC including, as already noted, the rights of the child recognised in it. Without being exhaustive, the matters of importance in the CROC include the following:

    The rights and duties of the child’s parents or, where applicable members of the extended family or community: Arts 3(2) and 5;

    Economic, social and cultural rights: Art 4;

    The right to know and be cared for by his or her parents: Art 7;

    The right to preserve his or her identity, including nationality, name and family relations: Art 8;

    The right of a child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if contrary to the child’s best interests: Art 9(3);

    Education of the child is to be directed to the development of respect for the child’s parents, his or her own cultural identity, language and values: Art 29(l)(c); and

    Where ethnic minorities exist, the child belonging to that minority shall not be denied the right to enjoy his or her own culture: Art 30.

22    The applicant submitted that the Tribunal’s attention was directed to each of these matters but it considered none of them. Instead, according to the applicant, it proceeded on the basis that there had to be some ‘significant evidence’ as to what the best interests of the children were: at [61]. It did not explain what it meant by ‘significant’. It did not, for example, reject the evidence of the applicant and his family with respect to his relationship with his own children and those in his extended family. Indeed, that evidence was not contested. Nor did it find that there was any risk of harm that the applicant might bring to his children that might indicate that their best interests were served by cancellation of his visa in spite of the rights recognised in CROC; to the contrary, it found that there was no such suggestion: at [58].

23    The matters to be considered by the Tribunal in respect of the best interests of the child are expanded upon in para 10.4.1. Subpara (4) states:

‘Under Australian law, it is generally presumed that a child’s best interests will be served if the child remains with its parents. Factors which may indicate that the child’s best interests are served by separation from the person include, but are not limited to:

(a)    any evidence that the person has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect;

(b)    any evidence that the child has suffered or experienced any physical or emotional trauma arising from the person’s conduct.’

24    According to the applicant, the presumption referred to here is simply a conclusion that must be drawn until the contrary is proved. It is not a fact to be inferred from evidence for two reasons: first, the best interests of a child are not facts (see CDJ v VAJ (1998) 197 CLR 172 at [152]), and secondly, that would be inconsistent with the import of the second sentence, namely, that the conclusion can be avoided (as opposed to arrived at) in light of the evidence. In requiring that there be ‘some basis on which a child’s best interests can be determined’ the Tribunal ignored the presumption and, in effect, inverted the inquiry so that it required evidence to establish what the Direction said was to be presumed.

The risk of recidivism

25    The second critical issue before the Tribunal was the risk of recidivism. Paragraph 10(l)(a) of the Direction makes a primary consideration the protection of the Australian community from serious criminal or other conduct, particularly those crimes involving violence. There are two matters germane to the level of risk of harm to the community: the seriousness and nature of the relevant conduct; and the risk that the conduct may be repeated: para 10.1(2).

26    Paragraph 10.1.2 directs the Tribunal in its consideration of the risk that the conduct may be repeated. The Tribunal referred to this paragraph in its reasons (at [35]), but did not set it out in full. Paragraph 10.1.2(2) states:

‘The following factors are to be considered as particularly relevant to this assessment:

(a)    a recent history of convictions, which should be considered as indicating an increased risk of re-offending;

(b)    evidence of the extent of rehabilitation already achieved and the prospect of further rehabilitation. Greater weight should generally be given to evidence from independent and authoritative sources, such as judicial comments, professional psychological reports, pre-sentence reports for the courts, parole assessments, and similar sources of authoritative information or assessment; and

(c)    evidence that the person has breached judicial orders, including parole, bail, bonds, suspended sentences and any other relevant undertakings or conditions imposed by the courts.’

27     The applicant contended that the Tribunal failed to comply with this part of the Direction in two respects: first, it did not refer to the evidence given by the applicant’s family as to the extent of his rehabilitation; and secondly, it did not give greater weight to the evidence of either Mr Taylor or Ms Bond.

Conclusion on first ground

28    By ignoring the rights recognised in the CROC, the applicant contended that the Tribunal failed to give consideration to relevant international obligations as required by the Direction. Further, the Tribunal failed to comply with the Direction by failing to apply the presumption referred to in para 10.4.1(4) of the Direction and by failing to consider evidence of the extent of rehabilitation and, in doing so, give greater weight to the evidence of independent experts. Compliance with the Direction was a necessary precondition to the exercise of the Tribunal’s jurisdiction. The Tribunal’s failure to comply with the Direction infected its decision with jurisdictional error.

Second Ground: the decision was irrational, illogical and/or not based on findings or inferences of fact supported by logical grounds

29    The applicant contended that a decision made by the Tribunal may be affected by jurisdictional error where it is irrational, illogical and not based on findings or inferences of fact supported by logical grounds: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165 at [36] – [37]; Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992 at [38]; NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 at [130] – [139].

30    The applicant put this ground on two bases: first, on the basis that the argument in ground one concerning the proper understanding of para 10(1)(d) of the Direction is accepted; and secondly, on the basis that it is not.

31    On the first basis, this ground may be seen as a corollary of the first ground: once it is accepted that the rights of the child as described in the CROC inform the child’s best interests there is no need for evidence to establish those best interests, and it is illogical to require there to be evidence in order to determine those interests.

32    Conversely, if it is necessary to have evidence of what decision would be in the child’s best interests; then, in the face of uncontested evidence of the applicant’s relationship with his own children and those of his siblings and niece, the children’s love and respect for the applicant, and the impact his removal to New Zealand would have on the family, it was irrational to find, as the Tribunal did, at [74], that there was no evidence that the best interests of the applicant’s children, or other children, would be served by him remaining in Australia. That is because all of that evidence logically supported the conclusion that it was in the best interests of the children that the cancellation decision be set aside. On that basis it must be concluded that there was no logical connection between that evidence and the Tribunal’s conclusion.

33    The Tribunal was required to give primary consideration to the best interests of all of the children. The finding that there was no evidence to support the applicant’s case in this respect was thus critical to consideration of the exercise of the power to cancel. The lack of logical connection between the evidence and the Tribunal’s conclusion thus infected the decision with jurisdictional error.

The MInister’s Response on Appeal

The best interests of the child

Failure to refer to various rights conferred by the CROC

34    The Minister observed that although para 10(1)(d) of the Direction speaks in terms of considering ‘international obligations’, detailed instructions are provided in para 10.4 as to how the best interests of the child are to be considered. Neither the Direction nor the Act under which it is made purports to incorporate the provisions of the CROC into Australian law; nor does para 10.4 adopt the terms of the CROC. Rather, para 10.4(1) imposes a single requirement – that decision-makers have regard to the interests of the child – which is said to ‘reflect’ Australia’s obligations under the CROC; and para 10.4.1 gives detailed instructions as to how that obligation is to be carried out.

35    According to the Minister, what paras 10.4(1) and 10.4.1 do is to impose a specific obligation which ‘reflects’ the duty imposed on Australia pursuant to Art 3(1) of the CROC. No part of the CROC is adopted in any direct sense; and other obligations imposed on Australia by that instrument do not form part of the duties of decision-makers under the Direction in any direct way.

36    The Minister accepted that the reference to the CROC in para 10.4(1) may make the context of the CROC relevant, in some cases, to an understanding of the concept of the best interests of the child. Hence, for example, as a result of Art 30 of the CROC the children’s Maori heritage (and the applicant’s ability to provide them with a link to that heritage) might have been a significant issue in determining how their interests would be affected by the cancellation decision, if the findings of the Tribunal had been different. However, the Minister pointed out that what the Tribunal did find was that the applicant had not seen, or tried to see, his children for eight years, and there was no evidence, except for a desire expressed by the applicant, that this situation would change in the future. According to the Minister, those findings led inevitably to the Tribunal’s lack of satisfaction that the impact of cancellation on the children’s interests would be significant. They made it unnecessary to gain a refined understanding of those interests by reference to the matters dealt with in the CROC. The Tribunal therefore did not err by failing to give separate attention to the various rights of children which are referred to by the applicant.

Assessing the interests of the children

37    The Minister contended that the Tribunal was not asked to find that the presumption referred to in para 10.4.1(4) of the Direction had been rebutted, or that the best interests of the children did not support a decision permitting the applicant to remain in Australia. Rather, the submission was that the children’s interests would not be ‘affected’ (which should be understood to mean affected to a significant degree) by the cancellation of the applicant’s visa and were therefore ‘not a factor that weighs significantly in the balance of the case’.

38    According to the Minister, the Tribunal’s reasoning should be read in that light. The Tribunal acknowledged the existence of the presumption and did not suggest that it regarded the presumption as having been rebutted or displaced. Its conclusion about the case was that no other considerations ‘outweigh the unacceptable risk of harm’; and the interests of the children were cited as a ‘particular’ of that proposition. In other words, the decision turned on the weight to be given to the children’s interests.

39    When the Tribunal remarked on the absence of ‘significant evidence as to their best interests’, it was, according to the Minister, referring to what it perceived as a lack of material to persuade it that the cancellation of his visa would have a significant adverse effect on the interests of the children. It evidently required such persuasion in light of the evidence, to which it had referred, concerning the lack of any contact between the applicant and his own children for some years. It was entitled, according to the Minister, to look to the applicant for that evidence, given that he was better placed than the Minister to bring forward evidence about his relationship with his children and the children of his family members.

40    Understood in this way, the Tribunal’s approach did not involve any error. It did not invert the inquiry that was required by the presumption in cl 10.4.1(4).

41    Nor, according to the Minister, was there any lack of rationality in not regarding the evidence of the applicant’s family members as demonstrating that the cancellation of his visa would affect the interests of the children. First, while the Tribunal used the expression ‘no evidence’, it should not be regarded as having stated a conclusion of law; it meant that there was no evidence that it found persuasive. Secondly, the Tribunal was required to reach the correct or preferable decision and was not bound in any way by the fact that evidence was ‘uncontested’. It was entitled to give that evidence such weight as it thought appropriate. Thirdly, even if the Tribunal erred in characterising the evidentiary position in the way that it did, it cannot be said that its decision was rendered ‘irrational, illogical and not based on findings or inferences of fact supported by logical grounds’.

The risk of recidivism

42    As to the applicant’s submission that the evidence of family members was not ‘referred to’, according to the Minister, this falls short of the allegation in the application that that evidence was not ‘considered’. The difference is not insignificant. It is true that the Tribunal does not refer in its reasons to the evidence in question. However, the Tribunal was not under any obligation to analyse evidence that it did not find persuasive: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 74 ALJR 405 at [64] – [65]. Failure to ‘refer to’ the evidence is therefore of no legal significance in itself. Further, the absence of reference to the opinions and observations of the applicant and his relatives signifies only that this evidence was not relied upon. It does not support any conclusion as to whether the evidence was ‘considered’.

43    The allegation is therefore not made out. Even if it were, a failure to advert to evidence which might have led to a different conclusion on an issue does not amount to a failure to consider the issue; it is no more than an error of fact: WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 at [46], referring to Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [87] – [97].

44    As to the applicant’s submission that the Tribunal did not give ‘greater weight’ to the evidence of Mr Taylor or Ms Bond, the Minister responded that the weight to be given to evidence was a matter for the Tribunal. It is clear that the Tribunal had regard to the evidence of Ms Bond and Mr Taylor and was assisted by it in reaching its conclusion. It was not under an obligation to agree with their assessments of the applicant. The Tribunal’s obligation was to make its own assessment of the risk that the applicant’s criminal conduct would be repeated.

Consideration

The best interests of the child

45    The failure of the Tribunal to refer to, or even consider, the rights of the child recognised in the CROC, even though its attention was directed to them, does not, in my view, amount to error on the part of the Tribunal in the circumstances of this case. The Tribunal found that the applicant had not seen or tried to see his children since his release from gaol in April 2002 and, as the Minister observed, there was no evidence, except for a desire expressed by the applicant, that this situation would change in the future. Those findings and circumstances made it unnecessary to gain a refined understanding of the children’s interests by reference to the matters dealt with in the CROC because they led inevitably to the Tribunal’s lack of satisfaction that the impact of cancellation on the children’s interests would be significant.

46    At [61] of the Tribunal’s reasons, the Tribunal recorded that the Direction acknowledges that it is generally presumed, under Australian law, that a child’s best interests are served by remaining with its parents. The Tribunal did not suggest that it regarded the presumption as having been rebutted or displaced but observed that the presumption ‘is more than [an] abstract principle’. Its conclusion about the case was that no other considerations (including the best interests of the children) ‘outweighed the unacceptable risk of harm’ (at [74]). When (at [61]) the Tribunal remarked on the absence of ‘significant evidence as to [the] best interests’ of the children, it was referring to what it perceived as a lack of material to persuade it that the cancellation of the applicant’s visa would have a significant adverse effect on the interests of the children. The need for persuasion was totally comprehensible in the face of the evidence concerning the lack of any contact between the applicant and his own children for over eight years.

47    The Tribunal’s approach, so understood, did not involve any error; nor did it invert the inquiry that was required by the presumption in cl 10.4.1(4) of the Direction. Indeed, the Tribunal’s approach is contemplated and mandated by the first three factors in cl 10.4.1(5) which are to be considered in considering the best interests of the child, namely:

‘(a)    the nature of the relationship between the child and the person, for example, a relationship that has parental rights or regular meaningful contact with a child compared to a relationship with long periods of absence and limited meaningful contact with a child;

(b)    the duration of the relationship, including the number and length of any separations and reason/s for the separation;

(c)    the extent to which the person is likely to play a full parental role up to the child’s eighteenth birthday…’

48    For the reasons advanced by the Minister at [41] above, nor was there any lack of rationality in not regarding the evidence of the applicant’s family members as demonstrating that the cancellation of his visa would affect the interests of the children.

The risk of recidivism

49    There is no error in the Tribunal’s decision by its failure to refer, in its reasons, to evidence of family members concerning the extent of the applicant’s rehabilitation. It certainly does not support any conclusion that the evidence was not ‘considered’; at most, such failure could only suggest that such evidence was not found to be so persuasive as to be relied upon.

50    The applicant’s submission that the Tribunal erred in not giving ‘greater weight’ to the evidence of Mr Taylor and Ms Bond, cannot be sustained. It is not suggested, nor could it be, that such evidence was not considered; the weight to be given to evidence was a matter for the Tribunal and it was under no obligation to agree with their respective assessments of the applicant.

Conclusion

51    The application must be dismissed with costs.

Associate:

Dated:    2 December 2010