FEDERAL COURT OF AUSTRALIA

Tuitaalili v Minister for Immigration & Citizenship [2011] FCA 1224

THE COURT ORDERS THAT:

1.    The time within which to file the application be extended to 13 April 2011.

2.    The application be dismissed.

3.    The applicant pay the first respondent’s costs.

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

REASONS FOR JUDGMENT

1        Moreli Tuitaalili is a New Zealand citizen who has lived in Australia since July 1999. He entered the country with his mother and son on a Class TY Subclass 444 Special Category (Temporary) visa, which entitled him to stay here indefinitely while retaining his New Zealand citizenship. Despite having established roots in this country, he is now facing deportation to New Zealand.

2        Before he came here, and within six months of his arrival, Mr Tuitaalili committed numerous criminal offences and served several terms of imprisonment. He has a chronic relapsing psychotic illness and since his release on parole in November 2006 has been prescribed medication for it. Some of his offences were committed while he was on parole or on bail. His convictions were for a range of offences committed here and in New Zealand, including offences of dishonesty, a myriad of driving offences (amongst them dangerous driving and driving whilst disqualified from holding a licence), possession of prohibited drugs, and offences posing serious risks to the safety of the community. From 2000, almost all of his convictions resulted in custodial sentences. He was repeatedly declared an habitual traffic offender.

3         Since he was a teenager, Mr Tuitaalili has used illicit drugs including cannabis and, more recently, ecstasy and methamphetamine (known as ice). Many, if not all, the offences were committed either before he was diagnosed with his psychiatric illness, when he was non-compliant with his medication or while he was abusing non-prescription drugs.

4        On 5 September 2008 he was convicted of taking and driving a stolen motor vehicle, using the motor vehicle as an offensive instrument with the intention of preventing his lawful apprehension (an offence which carried a maximum penalty of 12 years), and driving whilst disqualified. This offence occurred within five months of the Minister sending Mr Tuitaalili a letter warning him that any further criminal conduct would result in a reconsideration of his immigration status. The facts are summarised in the tribunal’s decision at [25]. The offences were serious. He was sentenced then to two years and three months in gaol and found again to be an habitual traffic offender and disqualified from driving for 28 years. The sentencing judge directed that he be released to parole after twelve months subject to a number of conditions including that he accept psychiatric treatment and/or medication as directed by Probation and Parole and/or mental health medical advisors, and that he undergo counselling. In a report prepared at the request of his solicitor in August 2008, to which the sentencing judge had regard, a consultant psychiatrist said that he required long-term treatment with appropriate psychotropic medication under the supervision of a psychiatrist and a community mental health service and that he should also be monitored for abstinence from substance use.

5        On 8 December 2009, in sentencing Mr Tuitaalili for various offences committed in August 2009 whilst on parole, the magistrate referred to his “mental health issues”, but noted that, where there is a causal connection between mental illness and offending, the need to protect the community “takes on a greater emphasis”. Importantly, these offences were committed whilst he was off his medication, in breach of one of his parole conditions.

6        After two previous warnings, on 19 October 2010 the Minister for Immigration and Citizenship (“the Minister”) decided to cancel Mr Tuitaalili’s visa on character grounds.

7        Mr Tuitaalili applied to the Administrative Appeals Tribunal (“the tribunal”) for a review of the Minister’s decision but his application was unsuccessful.

8        Mr Tuitaalili now seeks writs in the nature of certiorari and mandamus quashing the decision of the tribunal and requiring the tribunal to again review the Minister’s decision. For the reasons I explained in Minister for Immigration and Citizenship v Obele [2010] FCA 1445 at [1]-[6], the only basis for challenging the tribunal’s decision is under s 476A of the Migration Act 1958 (Cth) (“the Act”) for jurisdictional error. He requires an extension of time in order to bring such an application to this Court.

9        In my opinion, for the reasons given below, while the extension of time should be granted, the application must fail.

Grounds of the application

10        The grounds upon which Mr Tuitaalili relies are that:

(a)    The tribunal constructively failed to exercise its jurisdiction by failing to comply with Direction No 41 (“the Direction”) made under s 499 of the Act in the following respects:

(i)    by failing to consider the best interests of his daughter or another child with whom he had a close relationship (whom I shall call “JB”) and by failing to apply the presumption in paragraph 10.4.1(4) that a child’s best interests will be served if the child remains with its parents;

(ii)    by failing to assess the risk of relevant conduct being repeated and/or the risk of re-offending, either as at the date of the decision or at all, contrary to paragraphs 10.1(2)(b) and 10.1.2(1) of the Direction;

(iii)    by failing to assess the level of risk of harm to the Australian community as at the date of the decision or at all, contrary to paragraphs 10.1(1), 10.1(2), 5.1(2) and 5.2(2)(b) of the Direction;

(iv)    by failing to consider his relationship with the child JB, contrary to paragraphs 9(1), 10.4.1(2), 11 and 11(3)(a) of the Direction.

(b)    The decision of the tribunal was irrational, illogical and not based on findings or inferences of fact supported by logical grounds. Specifically, the findings of the tribunal that there was a real risk that Mr Tuitaalili was likely to reoffend, which were critical to its decision, were illogical, especially in the light of its findings at [47] and [49], and irrational in view of the evidence.

11        In submissions Mr Tuitaalili broadly contended that the tribunal failed to comply with the Direction in three respects, by:

(a)    Failing to undertake the risk assessment required by the Direction and, in particular, to assess the seriousness and nature of his conduct, contrary to paragraph 10.1(2)(a), or “to locate his conduct on any scale or seriousness”;

(b)    Failing to consider the best interests of a child not his own (JB), a consideration it is alleged to which the tribunal was bound to have regard pursuant to paragraph 10(d)(i) or alternatively paragraph 11 of the Direction; and

(c)    Failing in the case of his own daughter to apply the presumption in paragraph 10.4.1(4) that, generally, the child’s best interests will be served if the child remains with its parents.

12        It is common ground that the application is out of time (see s 477A of the Act). The Court has the power to extend the period if it is satisfied that it is necessary to do so in the interests of the administration of justice. Mr Tuitaalili seeks an order to that effect on the grounds that there is a reasonable explanation for the delay in filing the application and the application has reasonable prospects of success. The Minister neither opposes nor supports the making of such an order.

13        The issues therefore are these:

(a)    whether an extension of time should be granted;

(b)    whether the tribunal failed to undertake the risk assessment required by the Direction;

(c)    whether the tribunal was obliged to consider the best interests of JB; and

(d)    whether the tribunal failed to apply to the applicant’s daughter the presumption concerning her best interests.

The statutory scheme

14        Section 501 of the Act gives the Minister the power to cancel a visa if he reasonably suspects the person does not pass the character test and the person does not satisfy the Minister that he or she does. A person does not pass the character test if, amongst other reasons, the person has a substantial criminal record: s 501(6). “Substantial criminal record” is defined in s 501(7). There is no dispute that Mr Tuitaalili has a substantial criminal record within the meaning of the Act. Consequently, the Minister’s power to cancel his visa was enlivened. This case is concerned with the manner in which it was exercised.

15        Section 499 of the Act empowers the Minister to give written directions to a person or body having functions or powers under the Act about the performance and exercise of those powers. The Minister issued directions to decision-makers performing functions or exercising powers under s 501. Those directions were binding on the Minister’s delegate in the first instance and on the tribunal in the second: s 499(2A). The relevant directions were contained in the Direction, which came into force on 15 June 2009, replacing Direction No. 21. It starts by referring to the objectives of the legislation and the way the discretion under s 501 is to be exercised. Part A summarises the operation of the character test in the Act. Part B is concerned with the exercise of the discretion. Paragraph 9(1) provides that in every case decision-makers must take into account the primary considerations set out in paragraph 10 and in any case where relevant the other considerations contained in paragraph 11. Paragraph 11, however, stipulates that generally the other considerations are to be given less weight.

16        The primary considerations relevant to this case are (a), (c) and (d):

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

(c)    the length of time that the person has been ordinarily resident in Australia before engaging in criminal activity or other relevant conduct; and

(d)    relevant international obligations, specifically, the best interests of the child, as described in the Convention on the Rights of the Child (“CROC”).

17        In the assessment of the protection of the Australian community the Government’s objectives set out in Part 1, paragraph 5, are to be given due consideration. Paragraph 5.1 reads:

(1)    The objective of the Act is to regulate, in the national interest, the coming into and presence in Australia of non-citizens.

(2)    In this regard, in order to safeguard the Australian community and to enable it to effectively discharge its duties and responsibilities to the Australian people, the Government seeks to protect the Australian community from unacceptable risks of harm as a result of criminal activity or other serious conduct by non-citizens.

(3)    The Government is especially mindful to protect the safety of the community’s more vulnerable members, including minors, the elderly and the disabled.

18        Paragraph 10.1(2) provides that the factors relevant to the assessment of the level of risk of harm to the community of the person’s entry or continued stay include the seriousness and nature of the relevant conduct and the risk that the conduct may be repeated.

19        Paragraph 10.1.1(1) emphasises that crimes involving violence or the threat of violence are of “special concern” to the welfare and safety of the Australian community, particularly crimes against vulnerable persons. Paragraph 10.1.1(2) provides examples of offences and conduct that are considered serious. Paragraph 10.1.1(3) states that the sentence imposed for an offence is considered indicative of the seriousness of the offender’s conduct against the community, and provides that due regard must be given to the extent of the person’s criminal record, including the number and nature of offences, the period between offences, and the time elapsed since the most recent offence. Paragraph 10.1.1(4) stipulates that certain other factors are also to be considered. Relevantly, they include:

(a)    any relevant information, including but not limited to, evidence from independent and authoritative sources in respect of the person such as judicial comments, professional psychological reports, pre-sentence reports, parole assessments and similar sources of authoritative information or assessment; and

(b)    any relevant mitigating factors the person provides.

20        Paragraph 10.1.2 deals with the question of the risk of repetition. It provides:

(1)    The person’s previous general conduct and total criminal history are to be considered highly relevant to assessing any risk of re-offending.

(2)    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.

21        Paragraph 10.3 requires that more favourable consideration be given the longer the person has been ordinarily resident in Australia before engaging in criminal activity or other activity that bears negatively on the person’s character.

22        If there is a child in Australia who is potentially affected by a visa refusal or cancellation, paragraph 10.4 repeats the injunction in paragraph 10.1(1) that decision-makers are required to have regard to the best interests of the child in accordance with Australia’s obligations under the CROC. Paragraph 10.4.1(4) notes that under Australian law it is generally presumed that a child’s best interests will be served if the child remains with its parents but paragraph 10.4.1(1) confines the presumption to children under 18 at the time the decision to refuse or cancel the visa is expected to be made. The best interests of adult children may be considered with other considerations in paragraph 11: paragraph 10.4.1(2).

23        Of the other considerations listed in paragraph 11(3), the following are relevant:

(a)    the extent of disruption to the person’s family and other ties to the Australian community, having regard to the nature and duration of the relationship;

(d)    any links to the country to which the person would be removed and specifically mentioned as a favourable consideration is the absence of significant familial ties in that country;

(e)    hardship to the person or his or her immediate family members lawfully resident in Australia, including their ability to travel overseas to visit the person; and

(g)    whether the person has been formally advised in the past by an officer of the Minister’s Department about conduct that brought the person within the character provisions of the Act.

The tribunal’s decision

24        The tribunal canvassed the matters telling in Mr Tuitaalili’s favour. They comprised of his strong ties with his mother and son, both of whom reside in Australia, the inability of his mother to visit him in New Zealand and the likelihood that neither would his son, the impact of separation on family members, and his few familial ties in New Zealand. But it found there was a high risk that Mr Tuitaalili will reoffend and concluded that the primary consideration of protection of the Australian community outweighed the other considerations.

Should an extension of time be granted?

25        The application was filed six days late at a time when Mr Tuitaalili was unrepresented and in immigration detention. He swore an affidavit in which he said that when he filed his application he “did not realise [it] was late”. Perhaps paradoxically, he later stated that when he decided to file his application he called the registry of this Court and was told that his application was late. He explained that, when his solicitor told him about the tribunal’s decision, he was told that there was nothing that could be done about it. He said that he then tried to research the question for himself using the computer at Villawood Detention Centre, but that in March or April there was a fire in the Centre which affected the computer room and it was closed down for a period. There is no independent evidence about the fire or when it occurred but Mr Tuitaalili’s evidence was not challenged. The apparently contradictory statements in the affidavit are of some concern but I am prepared to infer that all Mr Tuitaalili intended to say is that he did not realise that his application was late until he was told by a member of the registry staff. The delay is short and the Minister does not suggest he is prejudiced by it. Counsel for Mr Tuitaalili submitted that the prospects of success were high, or at least reasonable. The prospects of the application’s success are relevant. Nevertheless, as French J said in Seiler v Minister for Immigration, Local Government and Ethnic Affairs (1994) 48 FCR 83 at 98:

[t]he question of the merits of a substantive application has to be approached with some caution in any consideration of a claimed extension of time. If an application has no reasonable prospect of success, then the discretion to refuse an extension on that basis reduces to a decision to strike it out. To say a substantive application has a reasonable prospect of success is to say no more than that there is a finite non-trivial probability that it will succeed. The statement of its merits is then stochastic. It is based upon necessarily incomplete evidence or consideration of the case. It is difficult to imagine any case which appeared weak but not hopeless in which it would be proper to refuse an extension on that account. On the other hand, the stronger the case appears to be, the higher may be the probability that an injustice will be done if an extension is refused. So a strong case may be a positive factor in favour of the grant of extension, but an apparently weak case cannot be treated as a factor weighing against it.

26        Here, it could not be said that this is a hopeless case.

27        I therefore propose to grant the application. I am satisfied that it is in the interests of the administration of justice to do so. I now turn to consider the merits of the application.

Did the tribunal undertake the risk assessment required by the Direction?

28        Mr Tuitaalili submitted (at [43]) that the tribunal made “a conclusory finding” that the offences he committed were serious “given the potential to kill or injure” but failed to assess the seriousness and nature of his conduct as is required by paragraph 10.1(2)(a) or “to locate his conduct on any scale of seriousness”. He argued that the tribunal’s failure to expressly refer to paragraph 10.1.1(1) and the lack of evidence to support a finding under it give rise to the inference that the tribunal did not consider that it applied. He also argued that the tribunal failed to take into consideration the past sentences imposed on him, which demonstrates a lack of “active intellectual engagement with the question [of] how the factor or consideration” (Lafu v Minister for Immigration and Citizenship (2009) 112 ALD 1) was taken into account in making an assessment under paragraph 10.1.1(3). In particular, Mr Tuitaalili contended that, although the tribunal had extracted parts of the remarks of Tupman DCJ when sentencing him in September 2008, it “failed to address or consider how, or to what extent, the sentences imposed on Mr Tuitaalili were indicative of the seriousness of [his] conduct” (original emphasis).

29        The submission must be rejected.

30        First, the tribunal did not fail to assess the nature and seriousness of the conduct. It noted that paragraph 10.1.1(2) listed examples of categories of offences and conduct considered to be serious and accepted Mr Tuitaalili’s contention that the offences he committed were not among them. But it pointed out (correctly) that the categorisation of the offence is not the only matter to be taken into account in the assessment of the seriousness of the person’s conduct under the Direction. It specifically referred to the terms of paragraph 10.1.1(3), which, it will be remembered, provides that the sentence imposed for an offence is considered indicative of the seriousness of the conduct and that due regard must be given to the extent of the person’s criminal history. It noted that in the 12 years since Mr Tuitaalili has been in Australia he was convicted of at least 29 offences (the most recent of which it described in some detail) and sentenced to approximately nine years in prison, although he had not served the full terms. There can be no doubt that the tribunal considered both the nature of the conduct and its seriousness.

31        It is true that the tribunal did not locate Mr Tuitaalili’s conduct on a scale of seriousness but the Direction did not require it to do so. The same argument was put and rejected in Minister for Immigration and Citizenship v Taufahema (2010) 114 ALD 537 at [28].

32        In the case of the October 2007 offences for which Mr Tuitaalili was sentenced in September 2008, the tribunal extracted a passage from the judgment on sentence in which Tupman DCJ noted that the offence of using the vehicle with the intention of preventing lawful apprehension was obviously serious and “a relatively serious incidence [sic] of this particular offence because of the number of people, both drivers in other vehicles and pedestrians and workers at the car wash, who were put at risk because of the actions of the prisoner”.

33        Secondly, contrary to the submission, in [41] of its reasons the tribunal did in fact expressly refer to paragraph 10.1.1(1). Therefore, the first premise for the inference Mr Tuitaalili asks the Court to draw is not made out. Neither is the second premise. The tribunal referred to some of that evidence at [43]:

Mr Tuitaalili has been charged with dangerous driving on numerous occasions and with “using an offensive weapon” to avoid arrest twice. He has been convicted of driving while disqualified on at least 10 occasions. These are serious offences, given the potential to injure or kill innocent pedestrians or drivers and their passengers, and it has been fortunate that no serious accidents have been caused by Mr Tuitaalili’s conduct to date.

[Emphasis added.]

34        Although the tribunal did not in this passage refer to the custodial sentences imposed on Mr Tuitaalili, on a fair reading of its reasons it could not be said that it did not take them into account. At various places it mentioned them. See, for example, [2], [21], [29], [42], and [43]. At [68] the tribunal noted that a substantial majority of his offences were “at the lower end of the scale in seriousness” but that “the key concern” is “the frequency and persistent nature” of the offending. As I mentioned earlier, in [42] it noted that Mr Tuitaalili had been sentenced to a total of approximately nine years in prison. Reading the judgment as a whole it could not be said that the tribunal did not regard that as serious. In the above passage the tribunal expressly adverted to his disqualification from driving, which was a common feature of his sentences, culminating in the habitual traffic offender declarations. In context, the reference to being “charged with” offences should properly be taken as a reference to being sentenced for the offences.

35        I accept that the tribunal might have considered the various sentences in more detail in this paragraph or generally in wrestling with the statutory task but I am not satisfied that there has been a want of active intellectual engagement with the relevant question. As the Minister intimated in his submissions, Mr Tuitaalili’s approach offends the warning given by Lockhart J in Politis v Federal Commissioner of Taxation (1988) 16 ALD 707 at 708 and repeated often since (e.g. in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259) that the reasons for an administrative decision under review are not to be construed minutely and finely with an eye* keenly focussed on the perception of error. *See Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 per Heydon J at n 73.

36        Accordingly, I am not satisfied that the tribunal failed to address the seriousness and nature of Mr Tuitaalili’s conduct contrary to paragraph 10.1(2)(a).

37        Mr Tuitaalili also submitted that the tribunal failed to “engage with the individual factors relevant to assessing the combined level of risk of harm under paragraph 10.1(2)”. The reference to “individual factors” is a reference to the seriousness and nature of the relevant conduct on the one hand and the risk that the conduct may be repeated on the other. He contends that the absence of any real assessment of the seriousness of his conduct meant that the tribunal was not in a position to assess the risk based on the prospect of recidivism and the seriousness of the conduct.

38        Having regard to the view I have taken that the tribunal did assess the seriousness of Mr Tuitaalili’s conduct, this submission must also be rejected.

39        In considering the risk of the conduct being repeated, the tribunal said (at [46]) that it was relevant to consider Mr Tuitaalili’s history of repeat offending, both in New Zealand and Australia, and the fact that many of the offences were committed when he was on bail or parole. It referred to the observation made by Tupman DCJ in September 2008 that Mr Tuitaalili’s prospects of rehabilitation “could not be seen as good”. It noted (at [47]) that his criminal history shows that when his condition is not being treated and he is not taking his medication and taking illicit drugs, there is a high risk he will reoffend.

40        The tribunal referred to his evidence that he has been compliant in taking his medication, and that, since returning to live with his mother in Brisbane, he has had no problems and was “feeling good”. It also noted his evidence that he regrets his past and had changed for the better. Mr Tuitaalili told the tribunal that he self-medicated when he was feeling confused or depressed, recognised that this only made things worse and promised he would not do it again. The tribunal accepted (at [49]) that he was ashamed of his past and was attempting to rehabilitate himself by staying with his family and taking his medication. But it also noted a letter from his case manager at Logan Central Mental Health Service dated 30 July 2010 that he was no longer a patient at the service. This evidence is of some significance in that Mr Tuitaalili’s evidence was that it was a doctor at that Service who prescribed his medication. The tribunal hearing was six and a half months after the date of the letter from Logan Central Mental Health Service. Still, Mr Tuitaalili testified that since he left Logan he would see a local doctor “if I need to get more medication” and he told the tribunal that he had never missed out on taking his medication morning and night since (as I read his evidence) it was prescribed. Later, however, he qualified that statement, saying that the only time he did not take it was when he was “doing other drugs” and would then forget.

41        The tribunal referred to Mr Tuitaalili’s history of failing to take his medication and of self-medicating at several points in its reasons. In particular, at [50] it noted the opinion of a probation and parole officer in April 2006 that he would benefit from professional support to address these issues but would need to commit to the change in order to rehabilitate himself. It then stated:

There is no evidence Mr Tuitaalili has sought ongoing professional support, in fact there is evidence to the contrary. Mr Tuitaalili told the Tribunal he has not been seeking any treatment, apart from his medication, as he does not consider he needs treatment or counselling. He said he has his mother now and she is providing him with all the support he needs.

[Emphasis added.]

42        The tribunal noted that Mr Tuitaalili had returned to live with his mother a few years earlier but despite family support he “fell into a bad crowd” and left home. In the absence of evidence to the contrary, such as a report from a health care professional about Mr Tuitaalili’s current condition and prospects or evidence of a sustained period of abstinence from drugs and compliance with medication, (at [51]) the tribunal accepted a submission by the Minister that it was possible this would happen again and, if so, there was “every prospect” he would reoffend. At [47] the tribunal had said that:

Mr Tuitaalili’s criminal history shows that when his condition is not being properly treated, he is not taking his medication and he is taking drugs, there is a high risk he will reoffend.

43        It went on to find (at [69]) that there was a high risk that Mr Tuitaalili would reoffend if he does not take his medication and/or takes illicit drugs. It noted that this was his history since he was at least 16 years old. It acknowledged that his condition was not diagnosed until some years later, but it observed that he had been aware of his illness and the potential impact of failing to take his medication and “self-medicate” since at least April 2006. Despite this, it remarked, he continued to be non-compliant and to further offend. It was not satisfied on the evidence that these issues had been resolved or that he had sufficient insight to appreciate the importance of treatment and medication.

44        Mr Tuitaalili submitted that none of the three factors that gave rise to the high risk was present. He argued that the first – the lack of adequate treatment for his mental illness – was either not supported by or contrary to the evidence. He said the second – the failure to take his medication – contradicted the tribunal’s finding that he was taking it. And he claimed that the tribunal implied by its reference to a sustained period of abstinence from drugs at [51] that it accepted that the third factor – illicit drug-taking – did not exist.

45        Mr Tuitaalili also submitted that the tribunal’s assessment of risk was flawed because the tribunal had no proper basis for the finding at [50] that there was no evidence that he had sought ongoing professional support and that there was evidence to the contrary. Alternatively, he submitted the tribunal failed to take into account relevant material and evidence when drawing its conclusion. He pointed to evidence that he had “access to, and the support of treatment, health service professionals and counselling”.

46        Whilst it may be accepted that the question of whether there is any evidence of a particular fact or whether inferences can be drawn from facts found or agreed is a question of law (Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355), it is doubtful whether this submission raises any question of jurisdictional error. Not all errors of law are jurisdictional. In any event, it seems to me that there was a factual basis for the tribunal’s findings.

47        Mr Tuitaalili’s evidence was that he was taking a combination of Seroquel, an anti-psychotic, and Epilim, a mood stabliliser; both of them prescription drugs. The tribunal referred to this evidence. But on a fair reading of its reasons, it is evident that its concern was with Mr Tuitaalili’s failure to seek professional psychiatric or psychological treatment or counselling to address the risk that he would stop taking the medication and self-medicate on illicit drugs as he had in the past.

48        Mr Tuitaalili submitted there was evidence that he had undertaken counselling but the references he gave were to counselling at a Buddhist monastery, which was plainly not what the tribunal had in mind. Indeed, Mr Tuitaalili acknowledged in his evidence that there was a risk based on his past behaviour that he would again have trouble dealing with grief issues and that it was up to him to see a counsellor but that, although he knew that counselling was available at the Logan City Community Mental Health Clinic, he had never done so:

I’ve never really gone to see a counsellor. I’ve always thought that I didn’t need one. I don’t need one.

49        I reject the proposition that the tribunal’s reference at [51] to a sustained period of abstinence from drugs suggested that the third risk factor (illicit drug taking) did not exist. The tribunal’s reference was to the lack of evidence of a sustained period of abstinence.

50        Mr Tuitaalili contended that the tribunal’s concerns regarding his risk of recidivism were based on the absence of evidence to the contrary, such as a report from a health care professional about his current condition and prospects. He submitted that this revealed error because it was a reversal of the onus. He asserted that paragraph 10.1.2(2)(b) of the Direction only required that “greater weight” be given to evidence from independent and authoritative sources, not that weight be given to the absence or otherwise of such evidence. This submission does not raise any question of jurisdictional error and, in any event, is misconceived. As I indicated earlier, the tribunal’s concerns about the risk of reoffending were based, not merely on the absence of such evidence, but also on Mr Tuitaalili’s history and the lack of evidence of a sustained period of compliance with medication and abstinence from drugs. As the Minister submitted, in substance the tribunal was merely saying that his past conduct was a guide to the future in the absence of objective evidence that the circumstances had changed. This kind of reasoning is unexceptionable and accords with common sense. See Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 575:

In many, if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future. It is therefore ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events.

Did the tribunal fail to take into account the best interests of the children?

51        Mr Tuitaalili contended that the tribunal failed to comply with the direction in paragraph 10.4.1 to consider the best interests of JB, who at the time the visa was cancelled was under 18, “despite the evidence from both [JB] and her mother [“MB”] regarding her close relationship with Mr Tuitaalili”. He also submitted that the tribunal failed to apply the presumption in paragraph 10.4.1(4) in relation to his daughter that her best interests are served by remaining with her parents.

52        There was no evidence that Mr Tuitaalili was JB’s parent or guardian. Mr Tuitaalili did not suggest he was. He argued that JB was a child in Australia who was potentially affected by a visa refusal or cancellation decision and for this reason paragraph 10.4.1(1) required that the tribunal have regard to her best interests. This was not an argument put in the tribunal. In the statement of facts and contentions filed in the tribunal on Mr Tuitaalili’s behalf the “best interests of the child” were canvassed only in relation to his daughter. Under the heading “other considerations”, under a sub-heading “family ties”, his solicitor wrote:

In addition, the applicant has formed a close bond with the daughters of another former partner, [MB].

53        There was in fact no evidence that MB was a former partner of Mr Tuitaalili. The evidence was that MB knew Mr Tuitaalili and considered him family but she did not say that they had ever had a de facto relationship. Mr Tuitaalili gave evidence before the tribunal but he was asked no questions about JB and he did not refer to his relationship with either MB or either of her daughters.

54        The material before the tribunal that mentioned JB consisted of a personal details form Mr Tuitaalili submitted to the Minister in October 2008 and letters from JB and her mother both dated 3 November 2008.

55        The October 2008 personal details form posed the question: “Do you have a close (parental-type) relationship with any other children [i.e. any children other than his own] under 18?” “Yes” and “no” boxes were provided and a further question posed: “If yes, please provide the child/ren’s name/s, the relationship details and nature of their relationship to you. If you have any on-going contact with them, please describe this contact (eg. Visits, phone calls.)”.

56        Mr Tuitaalili ticked the “yes” box and referred to JB as a child with whom he had a parental relationship and said that “for a while” in 2000 (eight years beforehand) he had lived with her and her mother and the two of them visited him.

57        The evidence from JB and her mother was of a close relationship. JB described him as being like “an uncle” to her. Her mother said she considered him family. Both said that before JB met him she had no male figures in her life.

58        In her letter MB said that JB was 15 years old. Her birth date appears nowhere in the evidence.

59        Almost two years after the letters of MB and JB, Mr Tuitaalili submitted another personal details form. The same questions were asked here. This time in answer to the question whether he had a parental-type relationship with any other children under 18 Mr Tuitaalili ticked the “no” box. There are only two inferences available from this document. Either JB was no longer a child under 18 or Mr Tuitaalili no longer had a parental-type relationship with her.

60        The relevant time for consideration of this issue is the time the tribunal makes its decision: Shi v Migration Agents Registration Authority (2008) 235 CLR 286. At this time the position was at best equivocal. In these circumstances, I do not think it can be said that the tribunal had sufficient evidence before it to trigger the obligation in paragraph 10.4.1(1).

61        In this Court counsel for Mr Tuitaalili submitted that the tribunal had a duty to inquire about JB’s age. In Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 at [25] six judges of the High Court said:

It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error.

62        In SZIAI their Honours said it was unnecessary to explore the questions because any further inquiry could not have yielded a useful result. That is not so here. Still, in the present case, it is difficult to see how JB’s age could be said to have been a critical fact when it formed no part of the case presented on Mr Tuitaalili’s part to the tribunal. SZIAI was concerned with the powers and duties of the Refugee Review Tribunal. Counsel for Mr Tuitaalili did not point to any provision of the Administrative Appeals Tribunal Act 1975 (Cth) that could be said to impose a duty to make an inquiry of this kind in the particular circumstances that presented themselves to the tribunal in this case.

63        In the alternative, Mr Tuitaalili submitted that, even if JB were 18 years or older at the time of the tribunal hearing, the tribunal was bound to take into account her best interests because paragraph 10.4.1(2) of the Direction provides that the best interests of a child of 18 years or older, though not a primary consideration, “may be considered with other considerations under paragraph 11”, and, if it is relevant, it must be considered. One difficulty with the Direction is determining when childhood ceases for the purpose of the Direction. One difficulty with the submission is that it assumes that the Direction requires the best interests of the child of 18 years or more to be taken into account. I do not think that is necessarily so. It is unnecessary to resolve either question here, however, because the way in which the case was conducted in the tribunal did not make it relevant. Despite the statement of facts and contentions, filed a month before the hearing in the tribunal, Mr Tuitaalili gave no evidence about any relationship with JB, the recent documentary evidence provided no support for the continuation of any relationship, and in closing submissions before the tribunal the issue was not raised.

64        In the case of his daughter, the tribunal accepted (at [58]) that it would be in her best interests that her father maintain contact with her over the next six years until she reached adulthood. Mr Tuitaalili referred to this finding but claimed it did not amount to an application of the presumption or a finding that the best interests of the child were for her to remain with her father. He argued that the finding that it would be in the best interests of the child that her father maintains contact with her is not an application of the presumption.

65        At [58] the tribunal said:

The Minister submits that there has been little face to face contact between Mr Tuitaalili and his daughter in the last few years. There is no evidence about his daughter’s views and whether it would be in her best interests. At its highest, she may be deprived of developing a closer relationship with Mr Tuitaalili. In any event, Mr Tuitaalili and his daughter can still talk regularly on the telephone. Mr Tuitaalili’s daughter is being cared for by her mother and there is no suggestion this will change or that Mr Tuitaalili has ever provided such a role. I accept this submission but nonetheless find that it would be in the best interests of his daughter for Mr Tuitaalili to maintain contact with her over the next six years before she becomes an adult. Much will depend on whether Mr Tuitaalili is able to rehabilitate himself and keep out of prison, which is also relevant to the first primary consideration of protection of the Australian community. On balance, this consideration is favourable to Mr Tuitaalili but in the circumstances of this case does not outweigh protection of the Australian community.

[Emphasis added.]

66        Paragraph 10.4.1(5) contains a list of factors that are to be considered when considering the best interests of the child. They include:

(a)    the nature of the relationship between the child and the person, one example of which is “regular meaningful contact with a child compared to a relationship with long periods of absence and limited meaningful contact with a child”; and

(k)    “any known wishes expressed by the child”.

These were the matters which the tribunal was addressing in [58] as it was bound to do.

67        The presumption appears in paragraph 10.4.1(4). It relevantly reads:

Under Australian law, it is generally presumed that a child’s best interests will be served if the child remains with its parents. …

68        I am not satisfied that the tribunal failed to apply the presumption. I accept that, in general, “contact” can include telephone or other forms of communication and is not confined to face to face contact. But the tribunal was dealing with a submission about the extent of “face to face contact”. In context, the tribunal’s finding that it was in the daughter’s best interests for her to maintain contact with her father and its statement that “this consideration” was favourable to Mr Tuitaalili can only mean that it had in mind face to face contact in Australia. Its remark about the absence of evidence about the daughter’s best interests was challenged on the ground that the best interests of a child are not facts (CDJ v VAJ (No 1) (1998) 197 CLR 172 at [152]). But the fact that the tribunal found that it was in the daughter’s best interests to maintain contact with her father, despite the absence of evidence, indicates that it was applying the presumption in paragraph 10.4.1(4) in Mr Tuitaalili’s favour. Here, the evidence was that the daughter was not living with her father at the time of the hearing (or for years beforehand). Thus, to apply the presumption in these circumstances would necessarily involve interpreting the phrase “remains with” to refer to the maintenance of the status quo and therefore to the facility for face to face contact in Australia if the daughter were to seek it or Mr Tuitaalili were able to provide it.

69        This ground is not made out.

Conclusion

70        In the absence of any jurisdictional error, the application must be dismissed. Mr Tuitaalili should pay the Minister’s costs. I wish, however, to record my gratitude for the assistance provided by Ms Mahmud, who appeared pro bono for Mr Tuitaalili, in what, on any view, was a difficult brief, and who argued the case as well as it could have been.

Associate:

Dated:    28 October 2011