FEDERAL COURT OF AUSTRALIA

Aquino v Minister for Immigration and Border Protection [2014] FCA 1425

THE COURT ORDERS THAT:

1.    The application is dismissed.

2.    The applicant pay the first respondent’s costs of and incidental to the proceeding, 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

1    In this proceeding, the applicant applies for judicial review of a decision of the Administrative Appeals Tribunal (the “Tribunal”) made on 23 April 2013 (The Applicant and Minister for Immigration and Citizenship [2013] AATA 242). The applicant had applied to the Tribunal for review under s 500 of the Migration Act 1958 (Cth) (the “Act”) of a decision made by a delegate of the first respondent (the “Minister”) to cancel the applicant’s visa pursuant to s 501(2) of the Act. The Tribunal affirmed the delegate’s decision.

2    The present application for judicial review was previously filed in the Federal Circuit Court of Australia on 12 June 2013 (as proceeding number BRG 482 of 2013). The Federal Circuit Court, however, has no jurisdiction in relation to a decision of the Administrative Appeals Tribunal in a review under s 500 (see s 476(2)(b) of the Act). On 23 July 2013, Federal Circuit Court Judge Jarrett therefore ordered that the application filed in the Federal Circuit Court be transferred to this Court: Acquino v Minister for Immigration and Citizenship [2013] FCCA 897.

3    On 10 October 2013, orders were made to the effect that the application filed on 12 June 2013 and transferred to this Court by the Federal Circuit Court, be treated as an application for an extension of time under r 31.23 of the Federal Court Rules 2011 (the “Rules”) for the purposes of s 477A(2) of the Act. On 10 October 2013, the applicant was granted an extension of time to file an originating application pursuant to r 31.22 of the Rules.

4    Although no originating application was filed by the applicant pursuant to the extension of time given on 10 October 2013, the hearing in this proceeding on 10 March 2014 was conducted on the basis that the application which had previously been filed in the Federal Circuit Court and which had been treated as an application for an extension of time in this Court, was also treated as the application for review, as if filed in this Court as an originating application. The Minister did not object to that course being taken (see the First Respondent’s Outline of Argument at para 8).

5    At the hearing of the application in this Court on 10 March 2014, the applicant appeared in person but requested that he be assisted by a Mr Mark Sloss. Although Mr Sloss was granted leave to appear on behalf of the applicant, the submissions which he made on behalf of the applicant were, in many respects, of little assistance to the Court (or the applicant). Therefore, although I will consider the applicant’s grounds of review in light of the oral submissions made on his behalf by Mr Sloss, I do not propose to limit my consideration to the submissions pressed by Mr Sloss on behalf of the applicant. The applicant does not have legal representation, and I will consider his application consistently with that position.

Background

6    The applicant migrated to Australia from the Philippines in June 1995 and has lived in Australia since that time. The applicant was 16 years old when he migrated to Australia.

7    On 6 July 2010, the applicant was convicted in the Queensland District Court at Southport, upon his plea of guilty, of the offence of “acts intended to cause grievous bodily harm or transmit serious disease”, and was sentenced to eight years imprisonment (with a declaration that 511 days of time spent in pre-sentence custody be deemed as time already served under the sentence).

8    On 21 January 2013, a delegate of the Minister for Immigration and Citizenship (as the relevant Minister’s title was at that time) made a decision to cancel the applicant’s Class BF Transitional (Permanent) Visa (the “visa”), pursuant to s 501(2) of the Act. It is not necessary in these reasons to examine the particular provisions of the Act which relate to a Class BF visa. It is enough simply to note that that class of visa is one which is subject to cancellation by the Minister or his or her delegate under s 501(2) of the Act.

9    The applicant sought review of the delegate’s decision in the Tribunal, pursuant to s 500(1)(b) of the Act. On 23 April 2013, the Tribunal (constituted by a Senior Member) decided to affirm the delegate’s decision to cancel the visa.

10    The Tribunal’s decision in a s 500 review is a “privative clause decision” within the meaning of s 474(2) of the Act, and it therefore cannot be appealed by way of an appeal on questions of law under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth). Instead, this Court’s jurisdiction arises under s 476A(1)(b) of the Migration Act, which confers original jurisdiction on the Court. I will say more about the nature of that jurisdiction later in these reasons.

The legislative scheme

11    The relevant legislation, as it was in force on 23 April 2013 (the date of the Tribunal’s decision to cancel the visa), is this.

12    Section 501 of the Act sets out a number of circumstances in which the Minister may cancel a visa that has been granted to a person. Relevantly to the present application, s 501(2) provides:

501 Refusal or cancellation of visa on character grounds

Decision of Minister or delegate — natural justice applies

…

(2)     The Minister may cancel a visa that has been granted to a person if:

(a)     the Minister reasonably suspects that the person does not pass the character test; and

(b)     the person does not satisfy the Minister that the person passes the character test.

13    Section 501(6) sets out a range of circumstances the existence of which mean that a person does not pass the character test for the purposes of s 501. Relevantly to the present applicant, s 501(6)(a) provides that a person does not pass the character test if the person has a “substantial criminal record” as defined by s 501(7). Section 501(7) provides that:

(7)     For the purposes of the character test, a person has a substantial criminal record if:

(a)     the person has been sentenced to death; or

(b)     the person has been sentenced to imprisonment for life; or

(c)     the person has been sentenced to a term of imprisonment of 12 months or more; or

(d)     the person has been sentenced to 2 or more terms of imprisonment (whether on one or more occasions), where the total of those terms is 2 years or more; or

(e)     the person has been acquitted of an offence on the grounds of unsoundness of mind or insanity, and as a result the person has been detained in a facility or institution.

[emphasis added]

14    In s 501, “imprisonment” includes any form of punitive detention in a facility or institution and “sentence” includes any form of determination of the punishment for an offence: s 501(12).

15    Section 501(2) poses two distinct questions: first, does the Minister (or, in this case, the Tribunal) reasonably suspect that the person does not pass the character test and has the person failed to satisfy the Minister that the person does pass the character test; and second, if so, should the discretion to cancel the visa be exercised?

16    The Minister has a power in s 499 of the Act to “give written directions to a person or body having functions or powers” under the Act, if the directions are about either the performance of those functions or the exercise of those powers: s 499(1). A person or body must comply with such a direction: s 499(2A).

17    In respect of the second question described above at [15], on 25 July 2012, the Minister gave Direction Number 55 (entitled “Visa refusal and cancellation under s 501”) (the “Direction”) which sets out the principles by which a “decision-maker” is to make a decision under s 501. A “decision-maker” includes the Tribunal. Clause 6.1 of the Direction sets out the objectives of the Direction, cl 6.2 sets out general guidance, and cl 6.3 sets out general principles applicable to a decision to be made under s 501. Clauses 7 and 8 provide as follows:

7. How to exercise the discretion

(1)    Informed by the principles in paragraph 6.3 above, a decision-maker:

(a)    must take into account the considerations in Part A or Part B, where relevant, in order to determine whether a non-citizen will forfeit the privilege of being granted, or of continuing to hold, a visa; and

(b)    is required to determine whether the risk of future harm by a non-citizen is unacceptable. This requires a balancing exercise, involving a consideration of the likelihood of any future harm, the extent of the potential harm should it occur, and the extent to which, if at all, any risk of future harm should be tolerated by the Australian community.

8. Taking the relevant considerations into account

(1)    Decision-makers must take into account the primary and other considerations relevant to the individual case, noting that there are differing considerations for visa holders and visa applicants as articulated in Parts A and B. Separating the considerations for visa holders and visa applicants recognises that persons holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa applicant should have no expectation that a visa application will be approved.

(2)     In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.

(3)    Both primary and other considerations may weigh in favour of, or against, refusal or cancellation of the visa.

(4)     Primary considerations should generally be given greater weight than the other considerations.

(5)     One or more primary considerations may outweigh other primary considerations.

[emphasis added]

18    Part A of the Direction sets out the “primary considerations” and the “other considerations” in relation to a decision to cancel a visa. Clause 9(1) sets out the primary considerations in making that decision. Relevantly, they are these:

(a)    protection of the Australian community from criminal or other serious conduct;

(b)    the strength, duration and nature of the person’s ties to Australia;

(c)    the best interests of minor children in Australia

19    Each of those considerations is described in greater detail in the subsequent subordinate clauses following cl 9. As to the primary consideration at cl 9(1)(a), the Direction says this:

9.1 Protection of the Australian community

(1)    When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.

(2)     Decision-makers should also give consideration to:

(a)    The nature and seriousness of the person’s conduct to date; and

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

9.1.1 The nature and seriousness of the conduct

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

(a)    The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;

(b)    The principle that crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;

(c)    Where the person is in Australia, that a crime committed while the person was in immigration detention; during an escape from immigration detention; or after the person escaped from immigration detention, but before the person was taken into immigration detention again is serious, as is an offence against s 197A of the Act;

(d)    The principle that any conduct that forms the basis for a finding that a person does not pass the character test under s 501(6)(b) or (d), or is not of good character under s 501(6)(c), is considered to be serious;

(e)    The sentence imposed by the courts for a crime or crimes;

(f)    The frequency of the person’s offending and whether there is any trend of increasing seriousness;

(g)    The cumulative effect of repeated offending;

(h)    Whether the person has provided false or misleading information to the Department, including by not disclosing prior criminal offending;

(i)    Whether the person has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the person’s migration status (noting that the absence of a warning should not be considered to be in the person’s favour);

(j)    Where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.

9.1.2    The risk to the Australian community should the person commit further offences or engage in other serious conduct

(1)    In considering whether the person represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable. In making this assessment, decision-makers must have regard to, cumulatively:

(a)    The nature of the harm to individuals or the Australian community should the person engage in further criminal or other serious conduct; and

(b)    The likelihood of the person engaging in further criminal or other serious conduct, taking into account:

(i)    information and evidence on the risk of the person re-offending; and

(ii)    evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).

20    As to the primary consideration of the strength, duration and nature of the person’s ties to Australia (cl 9(1)(b)), cl 9.2 of the Direction says this:

(1)    Reflecting the principles at 6.3, decision-makers must have regard to:

(a)    How long the person has resided in Australia, including whether the person arrived as a young child, noting that:

(i)    Less weight should be given where the person began offending soon after arriving in Australia; and

(ii)    More weight should be given to time the person has spent contributing positively to the Australian community.

(b)    The strength, duration and nature of any family, social and/or employment links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.

21    In relation to the primary consideration of the best interests of minor children in Australia affected by the decision (cl 9(1)(c)), cl 9.3 of the Direction says this:

(1)    Decision-makers must make a determination about whether cancellation is, or is not, in the best interests of the child.

(2)    This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to cancel 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 person. 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 person 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 person’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 person would have on the child, taking into account the child’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 person has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and

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

22    Clause 10 sets out the other considerations in these terms:

10. Other considerations – visa holders

(1)    In deciding whether to cancel a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):

(a)    Effect of cancellation of the person’s visa on the person’s immediate family in Australia, if those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely;

(b)    Impact on Australian business interests;

(c)    Impact of a decision not to cancel a visa on members of the Australian community, including victims of the person’s criminal behaviour, and the family members of the victim or victims where that information is available and the person being considered for visa cancellation has been afforded procedural fairness;

(d)    The extent of any impediments that the person may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:

(i)    The person’s age and health;

(ii)    Whether there are substantial language or cultural barriers; and

(iii)    Any social, medical and/or economic support available to them in that country.

Issues in the present case

23    As to the first of the two questions posed above at [15], the eight years imprisonment to which the applicant was sentenced meant that he did not pass the character test (as defined, in particular, by s 501(6)(a) together with s 501(7)(c)). The only question before the Tribunal, therefore, was the second question: should the discretion to cancel the visa be exercised? The Tribunal was required to decide that question in accordance with the principles stated in the Direction.

The grounds of review

24    In his application, the applicant applies for an order that the respondents show cause why a remedy should not be granted in exercise of the Court’s jurisdiction under s 476 of the Act in respect of the Tribunal’s decision. However, for the reasons mentioned earlier, for the purpose of this proceeding, the reference to s 476 will be taken to be a reference to s 476A.

25    The matters listed under the heading “Grounds of application” are these (with the paragraph numbering amended for ease of reference later in these reasons):

[A]    The rights of a child to have her parent service the needs of his only child his daughter have to out weight [sic] the cancellation of her father’s visa.

[B]    The needs of the mother to have her son here in Australia to assist her in her needs to have him care for her as she is fighting an uphill battle with cancer.

[C]    The Applicants [sic] family is in Australia and his half-sisters have migrated to Canada for work (sisters to a later marriage of whom he has no contact) and I have no remaining family in the Philippines or extended family who could support me or provide the basics of life.

26    The application also lists a number of matters under the heading “Grounds of application for extension of time”, some of which are relevant to the application itself. The relevant paragraphs are these (again, with the paragraph numbering amended for ease of reference):

[D]     I am appealing the decision of the AAT as a point of law for the panel member fail [sic] in his duty to address the needs and rights of my daughter an Australian born citizen in her Rights as a child according to the United Nations, the right of all children to have their parent with them to protect and nurture their needs.

[E]    In the other considerations the panel member failed to apply the law when taking into consideration the needs of my very sick mother for whom I gave an undertaking to nurse and care for her as she battles her fight against the caner [cancer] her body has been inflict [sic] with, making her weak and because of the treatment she has received, she also has diabetes and high casserole [cholesterol?] and a heart condition for which she is under treatment for with her local GP … [in] New South Wales.

[F]    I only truly became aware of the seriousness of her condition when she made a visit to Woodford Correctional Centre and told me her story and that she is becoming increasing [sic] weaker and asked for my help in her care once released from custody.

[G]    I am also wanting this learned Honourable Court to take into consideration that the [Senior Member] said to my mother as she stood up to leave the witness box, “madam kiss son good bye” and she broke down into tears, this was after she had given evidence, this happen [sic] when the hearing was in its first day, this was an indication that the Senior Member … was byes [biased] as he had already made up his mind without letting the hearing run its natural course without hearing submissions from my legal team.

[H]    I have been denied natural justice as the panel member has not used the law when making the balance with each of the three sections as he gave no weight as to my mother’s needs or any real importance to [the] needs of my daughter who is more important because she has the rights of a child.

…

[I]     9.2 Strength, duration and nature of the person’s ties to Australia – Greater importance should have been placed when addressing – 9.2 – as the applicant has very strong ties to Australia;

…

[J]     9.3 Best interests of minor children in Australia affected by the decision

The Applicant’s daughter was not given her rights when this part of the decision was determined correctly for she will be very affected if the AAT decision to cancel my visa, as the Tribunal is separating a child from her parent she is being punished and she has not committed a crime against society.

[K]    cl 10 of the Direction. Of potential relevance are cls 10(1)(a) and (d) thereof.

The mother’s needs;

As she is already a sick woman and her health will slowly become weaker as she succumbs to cancer, has not been addressed as I her son, am her only child living in Australia and she needs my assistance in some form in the near future. Upon her visit to Woodford Correctional facility just a month ago I her son agreed that I would assist her as she is having a very hard time coping with her illness and is in need of my assistance in the years to come, this was not addressed by the panel member at the AAT …

[bold emphasis in original]

27    It seems therefore that the aspects of the Tribunal’s decision in respect of which the applicant seeks review are these:

1.    The Tribunal’s consideration of the best interests of the applicant’s daughter, and the weight given by it to the daughter’s interests (grounds A, D, H and J).

2.    The Tribunal’s consideration of the applicant’s family connections in Australia, and the weight given by it to those connections (grounds C and I).

3.    The Tribunal’s consideration of the effect on the applicant’s mother of cancellation of the applicant’s visa, and the weight given by it to that effect (grounds B, E, F, H and K).

4.    The Tribunal’s consideration of the extent of the impediments that the applicant would face if removed from Australia to the Philippines in establishing himself and maintaining basic living standards, and the weight given by the Tribunal to those impediments (ground C).

5.    The words spoken to the applicant’s mother by the Senior Member at the Tribunal hearing, which the applicant says give rise to an apprehension of bias on the part of the Tribunal (ground G).

28    As to the error of law upon which the application for review is founded, the application for review (as quoted above) variously says that the Tribunal: “failed in [its] duty to address”, or did not address, certain matters; “failed to apply the law” when taking into account certain matters; “was [biased]”; and “denied [the applicant] natural justice”. At the hearing, I asked Mr Sloss a number of times what the applicant submitted was the legal error made by the Tribunal. His responses were that the weight given by the Tribunal to some matters was too heavy, and that greater weight should have been given by the Tribunal to other matters. He ultimately submitted that the Tribunal therefore reached a decision which no reasonable decision-maker could have reached.

Fact finding by the tribunal

29    The Tribunal gives a detailed summary of the factual matters in the evidence before it at paras 11 to 61 of its reasons. It is not necessary in these reasons to recite in detail every matter on which the applicant gave evidence before the Tribunal. It is sufficient to note that the Tribunal’s reasons set out the evidence given by the applicant regarding a range of matters including: particular incidents which are recorded in his prison records; his criminal history and the circumstances of the events which gave rise to each of the offences contained in it, including his version of the events the subject of the charge for which he was imprisoned; his relatives in Australia and relationship with them; his employment history and belief as to future employment prospects; the difficulty he would have in adjusting to life in the Philippines, by reason of the fact that, since coming to Australia, he had had no contact with relatives who might be living in the Philippines; the relationship between himself and his partner; the circumstances in relation to the domestic violence orders taken out against him; and, the circumstances of various incidents described in the police reports, including an incident of domestic violence in January 2009.

30    Some aspects of the applicant’s evidence are particularly relevant to the present review application and therefore warrant closer consideration.

31    First, the Tribunal refers to the applicant’s evidence that upon release from prison, his main goal was to provide assistance to his mother (who lives in Sydney) because of her difficulty in coping with health problems. The Tribunal described the applicant’s evidence in this way at para 14:

He was hopeful that [his mother] would be able to move to Brisbane and live with him, the partner and the daughter. However, he accepted that she may not wish to relocate, in which case he would move to Sydney, hopefully with the partner and daughter. He understood that the partner and daughter may stay in Brisbane until he finds work, in which case he would visit them whenever he could.

32    Second, the Tribunal described the applicant’s evidence as to his relationship with his daughter (born in 2003), in this way (para 15):

The applicant described a close relationship with the daughter before he went to prison. He has continued this through phone calls, the exchange of letters and, on special occasions such as birthdays, cards. He has received photographs and school progress reports. As a result of his paid work in prison, he has also been able to forward money to her in the amount of $100 per month.

33    Third, the Tribunal notes that the applicant agreed he had been involved in an incident of domestic violence at his partner’s residence in January 2009. The Tribunal describes the applicant’s evidence in relation to that incident in this way (para 28):

In his evidence, [the applicant] said that he found a used condom on the bathroom floor and he told the partner that if she had men to the house she should not do so when the daughter was around. He said that the partner had reacted angrily to that proposition, yelling and swearing at him. She hit him and he fell to the floor hitting his head a few times on the toilet. He said that he then retaliated by pushing her head into a wall. He could not recall hitting her in the face but recalled kicking her with his steel-capped boots, though he could not recall whether she was conscious afterwards. He said that the daughter had been present and witnessed the incident and that she hugged him and told him to stop.

34    The Tribunal then goes on to describe the evidence which it heard from the applicant’s partner (with whom he lived from time to time in a de facto relationship), the applicant’s daughter and the applicant’s mother. The Tribunal’s description of the daughter’s evidence (at para 36) was this:

The daughter … expressed her love for her father and her wish for him to be able to re-engage in the leisure activities that they had previously enjoyed together, such as fishing, camping and shopping. Her oral evidence was brief as she was upset by her circumstances but she did indicate that she had no recollection of her father from before he went to prison.

[emphasis added]

35    In addition to the oral evidence from the people mentioned above, the Tribunal received one or more written statements from each of them. The Tribunal also received statements or letters from the applicant’s maternal step-grandfather and grandmother, two female cousins of the applicant, the partner’s mother and step-father and the applicant’s mother’s treating doctor.

36    The documentary evidence to which the Tribunal had regard in its reasons included a National Police Certificate dated 25 July 2012 describing the applicant’s criminal history in Queensland, New South Wales and South Australia; the applicant’s prison records; a “sentence management report” in relation to the applicant, dated 11 July 2012; the sentencing remarks made by the District Court Judge at the sentencing of the applicant on 6 July 2010; a “notice of intended marriage” between the applicant and the partner, signed by each of them and received by the Parramatta Office of the New South Wales Registry of Births, Deaths and Marriages on 21 March 2013; police records setting out the history of domestic violence protection orders against the applicant (served on him on 8 June 2003, 24 April 2007 and 26 April 2007); police reports (including records of interview with the applicant) regarding particular incidents in May 2003, January 2004, April 2007 and January 2009; the court brief prepared in relation to the sentencing procedure for the offences leading to the applicant’s imprisonment; a “Prisoner Work Assessment” completed on 4 June 2012 for the applicant’s involvement with Woodford Food Services; an “Individual Intervention Completion Report” prepared on 26 September 2011 in relation to the “Making Choices Program” which the applicant had completed from June to September 2011 while in prison; and, “offender case file notes” dated 15 December 2009 and 3 February 2011, made in relation to the applicant’s imprisonment.

The tribunal’s findings arising out of its consideration of the evidence

37    The applicant was represented at the Tribunal hearing by his solicitor, Mr Vassili. In summary, the Tribunal says, Mr Vassili submitted that, despite the seriousness of the applicant’s offences, there was no unacceptable risk that the applicant would re-offend if he remained in Australia and, given the strong family ties that he has with his family in Australia and in the best interests of the daughter, the three relevant primary considerations weighed against the cancellation of the applicant’s visa.

38    Mr Kochardy appeared before the Tribunal on behalf of the Minister. The Tribunal records that Mr Kochardy conceded that the best interests of the applicant’s daughter would be served by the applicant remaining in Australia (para 74). Nevertheless, Mr Kochardy submitted to the Tribunal that the preferable decision, after weighing all of the relevant considerations, was that the Tribunal should exercise the discretion to cancel the visa.

39    The Tribunal undertook its task of deciding whether the discretion to cancel the applicant’s visa should be exercised, by examining in turn each of the three relevant primary considerations and the relevant other considerations contained in the Direction.

40    As to protection of the Australian community (cl 9(1)(a) of the Direction), the Tribunal considered that, of the factors stated in the Direction, the matters applicable to the applicant were paras (a), (b), (d), (e) and (f) in cl 9.1.1(1) and paras (a) and (b) in cl 9.1.2(1). The Tribunal noted that cl 9.1.1 has as its focus not only the applicant’s criminal offending but also his “other conduct”. The Tribunal considered that to be of particular relevance because the applicant’s “well documented violent conduct” had “not always been the subject of criminal proceedings” (para 78).

41    The Tribunal found that the applicant’s attack on the victim (the subject of the offence for which he was imprisoned), the assault on the partner in January 2009 and a stabbing incident in January 2004 “were, clearly, violent in nature and must be considered serious” (para 79). The Tribunal did not accept the applicant’s evidence that his offending conduct could be explained on the basis of spontaneous action by him. The Tribunal also found that the applicant had attempted to minimise his involvement both in these incidents and also in his breach of domestic violence orders, and concluded that such an attitude to his conduct represented “a lack of full insight into his offensive conduct”. The Tribunal was “satisfied that this heightens the risk of his re-offending in the future” (para 85). Ultimately, the Tribunal found (noting cl 9.1.1(1)(f) of the Direction) that the applicant’s conduct “from 2001 onwards reflects both increasing frequency and seriousness of his offending conduct” (para 86).

42    The conclusion which the Tribunal reached at para 91, on the primary consideration of protection of the Australian community was this:

I am satisfied that the applicant has a substantial criminal record as reflected in his history of convictions, of violent conduct and of defying court orders. He does not pass the character test. His record is such that there is an unacceptable risk that, once released from the constraints imposed by his custody, he will continue in the same manner as before. In accordance with the Principles in cl 6.3 and cl 9.1 of the Direction, the retention of his visa amounts to a significant and unacceptable risk to the Australian community. This weighs heavily in favour of the cancellation of his visa.

[footnotes omitted, emphasis added]

43    As to the strength, duration and nature of the person’s ties to Australia (cl 9(1)(b)), the Tribunal had regard to each of the matters set out in cl 9.2 of the Direction. As to cl 9.2(1)(a), although the Tribunal accepted that the applicant had made a contribution to the community doing voluntary work while he was living at the Gold Coast with his partner, it noted that the applicant’s first conviction as an adult was less than three years after he arrived in Australia, and at that time he had already been involved in stealing from shops while living homelessly (that is, he had begun offending soon after arriving in Australia). The Tribunal concluded that the “early involvement in offending and its escalation in frequency and severity over the following years outweighs the level of any contribution that he has made to the community” (para 93).

44    As to cl 9.2(1)(b) (the strength, duration and nature of any family, social and/or employment links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia), the Tribunal found that “despite her evidence, the mother has not had a close involvement with the applicant” and that “they have been separated for many years, for most of which they were not in contact”. The Tribunal noted at para 94 that the applicant and his mother had each indicated “a willingness to provide assistance to the other if the applicant remains in Australia”, with the applicant “providing assistance because of the mother’s health concerns”.

45    The Tribunal also made findings about the applicant’s future intentions with respect to his relationship with his partner, recording that the applicant’s position was that he would not marry her but “would be willing to share accommodation with her as friends and in that sense the partner will provide a degree of support to him if he remains in Australia” (para 95). The Tribunal did not accept the evidence of two of the applicant’s cousins who had made statements of support for the applicant.

46    The conclusion which the Tribunal reached on the primary consideration of the strength, duration and nature of the person’s ties to Australia was this (at para 97):

On balance, there has been no meaningful contribution by the applicant to the Australian community. The applicant has had little contact with most of his family members but, nonetheless, there is evidence of some support for him from his mother and from a Sydney cousin as well as from the partner and her family. In accordance with the Principles in cl 6.3 and cl 9.2 of the Direction, I am satisfied that the strength, duration and nature of ties to Australia weigh against cancelling his visa.

[footnotes omitted, emphasis added]

47    As to the best interests of minor children in Australia (cl 9(1)(c)), the Tribunal said this at para 99:

The daughter has had an upbringing characterised by long periods of separation from each of her parents. The applicant has been in prison for almost one-half of her life; the partner lived with another man for almost two years while the applicant has been in prison, during which time the daughter lived with the grandparents; and, before he was imprisoned, the applicant and the partner were living separately for several years while the daughter lived with the partner. The assault on the partner, in the presence of the daughter, occurred shortly before he was imprisoned. The daughter and the applicant have maintained a degree of contact while he has been in prison with some four visitations and an exchange of mail and, from their evidence, they have strong positive feelings towards each other and have expressed a desire to re-engage in the kinds of activities that occupied them before the applicant went to prison. The daughter is still a relatively young child and the applicant has the opportunity to provide a parental role in her life. On that analysis, it is in the best interests of the daughter not to cancel the applicant’s visa.

                                [emphasis added]

48    However, having made the conclusionary finding emphasised in that passage of its reasons, the Tribunal went on to say this:

[100]    However, when attaching weight to this primary consideration, I note that the applicant has exposed the daughter to domestic violence in his dealings with the partner while the daughter has been present, although there is no evidence before me as to the impact, if any, that this has had on her. Based on my assessment of the applicant’s propensity, I have concluded that there is a real risk that he will commit further offences and there is the potential for the daughter to be further exposed to that behaviour.

[102]    Because of the unacceptable risk of harm to, and the uncertainty surrounding future arrangements for, the daughter, in accordance with the Principles in cl 6.3 [fn72: “In particular cl 6.3(1), (2), (3) and (6) of the Direction.”] and cl 9.3 of the Direction, I am satisfied that the consideration of the best interests of the daughter weighs neutrally on the exercise of discretion to cancel the applicant’s visa [fn73: “See Rosson v Minister for Immigration and Citizenship (2011) 191 FCR 390.”].

[emphasis added]

49    In respect of the other considerations, the Tribunal considered that only paras (a) and (d) of cl 10(1) were relevant.

50    As to the effect of cancellation of the person’s visa on the person’s immediate family in Australia (cl 10(1)(a)), the Tribunal noted that the applicant’s mother had indicated that she “has an expectation of gaining some assistance from the applicant in relation to personal care associated with her health needs”. The Tribunal found, however, that “she has had no assistance from him for the four years of his imprisonment and for some years before that when she was not in contact with him”, and that if the applicant’s visa were cancelled “that situation will not change” (para 103). In respect of the effect of cancellation of the applicant’s visa on his partner, the Tribunal found that they would be able to reinstate contact with each other by electronic or other means of communication. As to the partner’s concern in relation to her financial position and the prospect of the applicant providing continued financial assistance to her and the daughter, the Tribunal said this:

For the last four years he has been able to forward monies to her from the relatively low income he has received from prison work and, in the event that he is able to find employment in the Philippines, there is no evidence before me that this could not continue.

51    As to the extent of any impediments that the person may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (cl 10(1)(d)), the Tribunal noted that “no age or health-related impediments are raised by the cancellation of the applicant’s visa” and was also satisfied that “no substantial language barriers [would] arise in the event of the cancellation of the visa”. The Tribunal accepted that the applicant would have “initial social and economic difficulties reintegrating into Philippine society”, but held that “apart from assertions that those problems would arise through lack of family connections in the Philippines, there is no evidence before me in that regard”.

52    The Tribunal therefore concluded that “the other considerations weigh neutrally on the issue of cancellation of the applicant’s visa” (para 106).

53    Having considered each of the relevant primary and other considerations, the Tribunal weighed up those considerations in this way at para 109:

Of the three relevant primary considerations, I am satisfied that the protection of the Australian community is the most significant in this case. The nature and frequency of the applicant’s criminal and otherwise violent conduct, and the likelihood of his re-offending, is in conflict with an objective of the Act; that is, to protect the Australian community from unacceptable risks of harm as a result of criminal activity or other serious conduct by a non-citizen. This first primary consideration weighs heavily in favour of cancellation of the visa. I am satisfied that the second primary consideration weighs in favour of not cancelling the visa. The third primary consideration and the other considerations weigh neutrally on the issue. On balance I am satisfied that the cancellation of the visa in this case would accord with the standards, values and expectations of the Australian community. Accordingly, the preferable decision is that the applicant’s visa be cancelled pursuant to s 501(2) of the Act.

[footnotes omitted, emphasis added]

Further material which the applicant sought to tender

54    At the hearing of this application on 10 March 2014, the applicant sought to tender to the Court a bundle of documents, comprised of the following:

    a handwritten letter addressed to the Court from the applicant’s daughter, dated 9 March 2014, which refers to the daughter’s desire that her father remain in Australia;

    a letter from the applicant’s mother’s treating general practitioner, dated 25 March 2013, which sets out the medical conditions from which the mother suffers;

    a handwritten document which appears to have been written and signed by the applicant’s mother, dated 10 March 2014, which contains a number of images and describes a range of matters about the applicant’s background and family connections in Australia and the Philippines; and

    a letter addressed “to whom it may concern” from three of the applicant’s cousins who live in Australia, signed by them on 9 March and 8 April 2014, which describes particular aspects of the applicant’s relationship with them and with his mother.

55    The bundle was marked “A” for identification, and I said at the hearing that I would decide in these reasons the question of the admissibility and relevance of each of the documents to the questions in issue.

56    The respondent opposed the Court receiving the documents on the basis that they were all matters of factual evidence that should have been put before the Tribunal, and that they were not relevant to the issues to be decided by this Court. I agree. The Tribunal received extensive evidence (as described above) on the matters which it considered relevant to the exercise of the discretion. The question now is whether that discretion was exercised according to law. Material in the nature of further evidence which, if it had been available at the time, could have been put before the Tribunal cannot be relevant to the question whether or not the Tribunal fell into jurisdictional error. I therefore refuse to receive the material described at [54] above.

57    The applicant also handed up to the Court at the hearing a document purporting to be written submissions. This document contains many assertions of fact not referable to any evidence before the Tribunal or finding made by the Tribunal. To the extent that the document contains material of that sort, I have not had reference to it.

Consideration of the grounds of review

58    Where the Federal Court has jurisdiction in relation to a migration decision under s 476A(1)(b) (that is, the kind of decision in issue in this proceeding), the Court’s jurisdiction is the same as the jurisdiction of the High Court under para 75(v) of the Constitution: s 476A(2). The High Court’s jurisdiction under para 75(v) of the Constitution (to grant the remedy of mandamus and the ancillary remedy of certiorari) is limited to decisions affected by jurisdictional error: Plaintiff S157 v Commonwealth (2003) 211 CLR 476. Therefore, this Court has jurisdiction to issue writs in respect of the decision under review only if the Tribunal’s decision is shown to be infected by jurisdictional error. That means, of course, that the question in this case is not whether the Tribunal reached the correct or preferable decision, but only whether the Tribunal fell into jurisdictional error.

59    In respect of each of the grounds of review which the applicant raises (set out at [27] of these reasons), the position is this.

60    First, as to the Tribunal’s consideration of the best interests of the applicant’s daughter, the applicant’s contention, simply put, is that too little weight was given by the Tribunal to the daughter’s interests. It is perfectly clear from the Tribunal’s reasons that it did consider the best interests of the applicant’s daughter, and did “make a determination about whether cancellation is, or is not, in the best interests of the child”, as it was required to do pursuant to cl 9.3(1) of the Direction (see Spruill v Minister for Immigration and Citizenship [2012] FCA 1401; 135 ALD 45 at [18] per Robertson J). As set out at [47] of these reasons, the Tribunal concluded that it was in the best interests of the daughter not to cancel the applicant’s visa. However, when the Tribunal turned to consider the weight which it should attribute to that factor, it held that the consideration of the best interests of the daughter weighed “neutrally” on the exercise of discretion. That statement is not contradictory to the conclusion the Tribunal had reached as to the best interests of the daughter. In the Tribunal’s reasoning process, the Tribunal first determined the best interests of the daughter. It then considered the weight to attribute to that factor, weighing it against the other relevant primary considerations. An examination of the Tribunal’s reasons as a whole demonstrates that the conclusion that the consideration “weighed neutrally” was simply a conclusion (although somewhat awkwardly expressed) that the protection of the Australian community (a competing primary consideration) outweighed the consideration of the best interests of the daughter. That analysis is consistent with the reference the Tribunal made at this point in its reasons to cl 6.3(3) of the Direction, which provides that:

In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.

61    The Tribunal was entitled to make the finding it made. The weight which the Tribunal attributed to competing considerations is not a matter which this Court is able to review on an application of the present sort: Rawsthorne v Minister for Immigration and Citizenship [2013] FCAFC 39; 140 ALD 524 at [25] per Cowdroy, Katzmann and Farrell JJ.

62    However, in respect of the weight attributed by the Tribunal to competing considerations, in his submissions on behalf of the applicant, Mr Sloss urged this Court to find that the Tribunal reached a decision no reasonable decision-maker could have reached.

63    In Jones v Office of the Australian Information Commissioner [2014] FCA 285 at [19] to [24], I set out the relevant principles in relation to reasonableness in the exercise of an administrative discretion in these terms:

[19]    … every statutory discretion, or discretionary power, is confined by the subject matter, scope and purpose of the legislation under which it is conferred (FAI Insurances Ltd v Winneke (1982) 151 CLR 342 at 368 per Mason J; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355) and every statutory discretion has to be exercised according to “the rules of reason” (R v Anderson; Ex parte Ipec-Air Pty Limited (1965) 113 CLR 177 at 189 per Kitto J; Minister for Immigration and Citizenship v Li (“Li”) [(2013) 249 CLR 332] at [23] and [24] per French CJ). The rationality required by “the rules of reason” is an essential element in the lawfulness or legality of administrative decision-making (Li, per French CJ at [26]). The legislature is taken to intend that a discretionary power, statutorily conferred, will be exercised reasonably (Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 36; Kruger v Commonwealth (1997) 190 CLR 1 at 36; Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; 259 ALR 429; 83 ALJR 1123 at [15]; Li, per Hayne, Kiefel and Bell JJ at [63]).

…

[21]    Importantly, however, a requirement of legality in decision-making that a decision be reached according to the rules of reason or, put another way for present purposes, reached reasonably, or not unreasonably reached, is not a vehicle for challenging a decision made in contended error of law and beyond power simply because “disagreement” is found with the “evaluative judgment” of the administrative decision-maker. Challenging an administrative decision-maker’s reasoning as illogical or unreasonable may simply be an emphatic way of expressing disagreement with the decision or the merits, and such emphatic disagreement may have “no particular legal consequence” (Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [40] per Gleeson CJ and McHugh J).

[22]    Properly applied, a standard of legal reasonableness does not involve substituting a Court’s view as to how the discretion should be exercised for that of the decision-maker. Accepting then, that there are limits on the Court’s supervisory jurisdiction and that a “standard of reasonableness” is not applied as a mechanism for merits review (or a vehicle for the Court substituting its own view of the manner of exercise of the discretion), but rather a feature of legality in decision-making, leaves open the question of how the standard “is to be applied and how it is to be tested” (Li, per Hayne, Kiefel and Bell JJ at [66]).

[23]    The legal standard of reasonableness must be the standard indicated by the proper construction of the statute which identifies the express statutory conditions and specific requirements upon which the exercise of the discretion rests in determining whether the statutory power has been abused, as falling short of the statutory standard, as a matter of legality in decision-making (Li, per Hayne, Kiefel and Bell JJ at [67]). The legal standard of unreasonableness should not be considered as “limited to what is in effect an irrational, if not bizarre, decision – which is to say one that is so unreasonable that no reasonable person could have arrived at it” (Li, per Hayne, Kiefel and Bell JJ at [68]).

[24]    In some cases, an inference of unreasonableness may be objectively drawn even where a particular error in reasoning cannot be identified and in that sense the supervisory review of the exercise of an administrative discretion is to be approached in an analogous way to the principles governing the review of the exercise of a judicial discretion in terms of the well-known principles identified in House v The King (1936) 55 CLR 499. Unreasonableness will be demonstrated where “no sensible authority acting with due appreciation of its responsibilities” (Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 per Lord Diplock at 1064) would have so decided. Lord Diplock’s observation reflects the requirement of the law that a decision-maker “understand his or her statutory powers and obligations” (Li, per Hayne, Kiefel and Bell JJ at [71]).

64    I see no aspect of the Tribunal’s reasons which could lead to a conclusion that it did not weigh the competing factors according to the rules of reason, and within the regime for decision-making set out in the Act and the Direction. The applicant’s contention that the Tribunal’s decision was unreasonable is simply an expression of disagreement with the merits of the decision. That disagreement has no particular legal consequence.

65    Second, as to the Tribunal’s consideration of the applicant’s family connections in Australia, again it is clear that those connections were considered carefully by the Tribunal, findings of fact were made, and indeed, the Tribunal concluded that the strength, duration and nature of ties to Australia weighed against cancelling the applicant’s visa. The applicant’s submission is really a submission that too little weight was attributed to this consideration as against the other relevant considerations. For the reasons I have explained in relation to the first ground of review above, the relative weight given by the Tribunal to the competing considerations is not a matter which it is open to this Court to review.

66    Third, as to the Tribunal’s consideration of the effect on the applicant’s mother of cancellation of the applicant’s visa, this was another matter which the Tribunal plainly explored at some length. The findings made by the Tribunal were those described at [50] of these reasons. Those factual findings are not open to review by this Court.

67    In his application to this Court, at ground B, the applicant refers to the Tribunal failing to apply the law when taking into account “an undertaking to nurse and care for” his mother. The applicant says, however, at ground F that he “only truly became aware of the seriousness of [his mother’s] condition when she made a visit to Woodford Correctional Centre and told me her story”. At ground K, the applicant says that “upon [his mother’s] visit to Woodford Correctional facility just a month ago [he] agreed that [he] would assist her as she is having a hard time coping with her illness”. What the applicant became aware of “only a month” before filing his application for review (i.e. in May 2013) cannot go to show any jurisdictional error in the decision of the Tribunal made on 23 April 2013.

68    The effect of cancellation of the applicant’s visa on the applicant’s mother (who is an Australian citizen) is one of the “other considerations” set out in the Direction (cl 10(1)(a)). The Direction provides, however, that primary considerations should generally be given greater weight than the other considerations: cl 8(4). The Tribunal determined that the “other considerations” weighed “neutrally” on the exercise of the discretion. In the same way as I have explained in relation to the best interests of the child consideration, a fair reading of the Tribunal’s reasons as a whole demonstrates that what the Tribunal meant by that language was that the weight it attributed to these considerations was outweighed by the primary considerations to which it attributed substantial weight.

69    Fourth, as to the Tribunal’s consideration of the extent of the impediments that the applicant would face if removed from Australia to the Philippines in establishing himself and maintaining basic living standards, the Tribunal’s findings of fact were those described at [51] of these reasons. Again, it is not open to this Court to review those findings of fact, which were made after a detailed consideration of the evidence.

70    The extent of the impediments that the applicant would face if removed from Australia is, along with the extent of the effect on the applicant’s mother, one of the “other considerations” in the Direction. For the reasons I have already explained, the Tribunal was entitled to make the decision it made as to the weight to be attributed to the relevant other considerations. It is not a matter open to judicial review.

71    Fifth is the applicant’s contention that words spoken at the Tribunal hearing by the Senior Member to the applicant’s mother, Ms Osmond, give rise to an apprehension of bias. The exchange recorded in the transcript at the conclusion of Ms Osmond’s oral testimony is this:

SENIOR MEMBER:     … All right. Thank you. You can now step down.

MS OSMOND:     Thank you so much.

SENIOR MEMBER:     Thank you for giving your evidence today.

MS OSMOND:     Thank you. Thank you.

SENIOR MEMBER:    I take it you are going back to Sydney today, are you?

MS OSMOND:     Yes.

SENIOR MEMBER:     All right.

MS OSMOND:     I don’t know if I can. I’m so tired when I come over here. All I wanted is – I’m so weak but I wanted to attend my son’s hearing. Thank you.

SENIOR MEMBER:     All right. Well, you are certainly free to go. Thank you.

<WITNESS WITHDREW [3.56pm]

SENIOR MEMBER:     If you want to say goodbye to your son you can do that. Ms Osmond, we will need to get on with business here so thank you for giving your evidence. Thank you. I’m concerned about the time.

72    The respondent submits that the applicant appears to have interpreted the Senior Member’s concluding words as an exhortation to the applicant’s mother to say goodbye to the applicant forever, but that a plain reading of the transcript shows that the context for the exchange was that the applicant’s mother was returning to Sydney and, given the applicant’s incarceration, was unlikely to have another opportunity to say goodbye to the applicant before she left. The respondent says that the Tribunal did no more than extend to the applicant’s mother, as a common courtesy, the opportunity to say goodbye there and then. I agree. There is simply no basis for any apprehension of bias arising out of the exchange between the Senior Member and the applicant’s mother.

73    In addition to those five grounds of review, Mr Sloss made a further submission on behalf of the applicant at the hearing before this Court, that the Tribunal had improperly taken into account, as violent behaviour of the applicant, behaviour which had not been the subject of criminal charges (in particular, the domestic violence incident in 2009 and the stabbing incident in 2004). That submission has no force. The Tribunal received evidence about each of the incidents, including evidence from the applicant himself who accepted that the incidents had occurred. The Tribunal found, as matters of fact, what the circumstances of each of the incidents had been. It does not matter that the incidents did not later become the subject of criminal charges. As the Tribunal itself noted (at para 78), cl 9.1.1 of the Direction refers to the decision-maker being required to consider the nature and seriousness of the person’s “criminal offending or other conduct to date” [emphasis added]. The circumstances of the incidents were matters on which the Tribunal was entitled to make findings, and were certainly relevant to the question whether the discretion to cancel the applicant’s visa should be exercised.

74    For the reasons above, none of the grounds of review establishes jurisdictional error on the part of the Tribunal.

75    The application should be dismissed.

Costs

76    At the hearing, Ms Kidson sought leave to read and file an affidavit of Ms Lana Simone Kelly, affirmed 7 March 2014, in support of an application for an order for lump sum costs which the Minister would make in the event he were successful in the proceeding. Leave was given in respect of the affidavit, and Ms Kidson made very short submissions. Unsurprisingly, the applicant was not in a position to make any submissions as to costs.

77    It is not entirely clear to me, either from the submissions made by Ms Kidson or from Ms Kelly’s affidavit, what the amount of the lump sum sought is. On the material as it stands, I am simply not in a position to determine whether a lump sum costs order is appropriate, and if it is, what the amount of that order should be.

78    I will therefore order the applicant to pay the Minister’s costs, to be taxed if not agreed.

Associate:

Dated:    23 December 2014