FEDERAL COURT OF AUSTRALIA

Wozniak v Minister for Immigration and Border Protection [2017] FCA 44

ORDERS

THE COURT ORDERS THAT:

1.    The application for leave to amend the originating application be allowed.

2.    The amended originating application be dismissed.

3.    The applicant pay the respondent’s costs.

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

REASONS FOR JUDGMENT

BURLEY J:

1.    INTRODUCTION

1    The applicant, Mr Wozniak, is a citizen of the United States of America who arrived in Australia on 24 November 2001, when he was 44 years old on a Class BS Sub-class 801 Partner (Permanent) Visa (Visa). In the ten years from March 2005, Mr Wozniak committed a number of crimes for which he was imprisoned. Many of those crimes involved threatened domestic violence or breach of apprehended violence orders. On 6 March 2015 he was convicted and sentenced to imprisonment for 12 months for contravening an apprehended domestic violence order and using a carriage service to menace/harass/offend.

2    As a result of the conviction, Mr Wozniak failed the “good character” test in s 501(6)(a) of the Migration Act 1985 (Cth) (Act). The respondent (Minister) was required by s 501(3A) of the Act to cancel Mr Wozniak’s Visa. On 26 May 2015 Mr Wozniak was informed of the cancellation and invited within 28 days to seek to have that decision revoked. He took up that invitation, and from 11 June 2015 he made submissions and provided documents in support of his application.

3    On 17 March 2016 the Department of Immigration and Border Protection (Department) provided a statement of issues (Statement of Issues) to the Assistant Minister for Immigration which included 21 attachments. On 18 March 2016 the Assistant Minister gave a decision not to revoke the mandatory cancellation of the Visa (Decision). There is no dispute that the Assistant Minister, in making the Decision, stood in the shoes of the Minister and is for present purposes to be understood as being the Minister.

4    In these proceedings, Mr Wozniak seeks judicial review of the Decision, an order in the nature of certiorari quashing the Decision and an order in the nature of mandamus remitting the matter to the Minister for further consideration in accordance with the law. The application was initially filed in the Federal Circuit Court of Australia (FCCA) but it was transferred by a judge of that Court to this Court pursuant to s 39(1) of the Federal Circuit Court of Australia Act 1999 (Cth) on 15 June 2016.

5    Mr Wozniak was represented at the hearing by a member of the private bar, Mr James Mitchell, who represented him on a pro bono basis. On the day of the hearing, counsel sought to rely on an amended originating application which, in summary, contended that in making the Decision, the Minister had erred by: (1) failure to consider the best interests of Mr Wozniak’s two daughters; (2) failure to consider circumstances relevant to Mr Wozniak’s criminal offences; (3) failure to accord procedural fairness in the conduct of the review leading to the Decision; (4) failure to accord procedural fairness in the context of an incomplete letter received by the Minister; and (5) failure properly to construe and apply s 501CA(4) of the Act. The Minister opposed the amendments, primarily on the basis that the grounds advanced had insufficient prospects of success. The hearing was conducted on the basis that I would consider the application for leave to amend the originating application and the substantive application together.

6    For the reasons set out below, I grant the application for leave to amend but refuse the substantive application.

2.    THE LEGISLATION

7    Subsections 501(1) and (2) of the Act permit the Minister to refuse to grant a visa, or to cancel a visa already granted to a non-citizen, if he or she does not satisfy the Minister that they pass the “character test”. Pursuant to s 501(6)(a) a person does not pass the character test if he or she has a “substantial criminal record” as defined in s 501(7) of the Act. Pursuant to s 501(7)(c) a person has a “substantial criminal record” if he or she has been sentenced to a term of imprisonment of 12 months or more.

8    Mr Wozniak does not dispute that he has a “substantial criminal record” for the purposes of s 501(7) of the Act and therefore does not pass the character test.

9    Subsection 501(3A) provides that the Minister must cancel a visa that has been granted to a person if he or she does not pass the character test because, amongst other things, he or she has a substantial criminal record, and is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of a state. Again, Mr Wozniak does not dispute that this situation applies in the present case.

10    Subsection 501CA(4) of the Act provides:

(4)    The Minister may revoke the original decision if:

(a)    the person makes representations in accordance with the invitation; and

(b)    the Minister is satisfied:

(i)    that the person passes the character test (as defined by section 501); or

(ii)    that there is another reason why the original decision should be revoked.

11    If the Minister revokes the original decision to cancel the Visa, the original decision is taken not to have been made: s 501CA(5).

12    The Minister made a decision not to revoke the cancellation of the Visa of the applicant and, pursuant to s 501CA(3), gave the applicant a written notice that set out his decision and particulars of the relevant information, and invited the applicant to make representations to the Minister about the revocation of the original decision.

3.    BACKGROUND

3.1    Summary of Mr Wozniak’s circumstances

13    Set out below are some factual matters considered in the Statement of Issues to be relevant to the Minister’s consideration of the decision to revoke Mr Wozniak’s visa. They were not the subject of contest during the course of the current application.

14    Mr Wozniak has resided in Australia since November 2001. He arrived as a 44 year old adult. He has travelled out of Australia on four occasions for a relatively short duration.

15    Mr Wozniak has a criminal history in the United States of America which consisted of three drink/driving offences for which he received fines and probation of five years in the period from 1977 until September 1996. He also received a fine for criminal trespass.

16    The details of Mr Wozniak’s criminal record in Australia were set out in the Statement of Issues. Under the heading “Risk to the Australian Community”, they are summarised as follows and were not the subject of challenge:

93.    Mr WOZNIAK has a consistent history of breaching judicial orders imposed by the courts. You may wish to take into account such information when considering Mr WOZNIAK's risk of re-offending. The available information suggests that this offending is all in relation to his former partner or her partner. Mr WOZNIAK was convicted of his first offence of Contravene Apprehended Domestic Violence Order in March 2005 for which he received a bond to be of good behaviour for 12 months. In May the same year he was again convicted on three counts of Contravene Apprehended Domestic Violence Order for which he received a bond to be of good behaviour for two years. In June 2005, Mr WOZNIAK was sentenced to seven months imprisonment for Contravene Apprehended Domestic Violence Order (Attachment F).

94.    Mr WOZNIAK was again convicted of Contravene Apprehended Domestic Violence Order in August 2005 and received a sentence of three months imprisonment suspended to be of good behaviour for three months. On 9 September 2005, Mr WOZNIAK was sentenced to three months (call up) imprisonment for Contravene Apprehended Domestic Violence Order. On the same day he was also sentenced to one month imprisonment on two separate counts of Contravene Apprehended Domestic Violence Order. On 10 March 2006, Mr WOZNIAK was again convicted of Contravene Apprehended Domestic Violence Order and sentenced to three months imprisonment. He was also convicted on three counts of Contravene Apprehended Domestic Violence Order and received one month imprisonment on each charge. On 29 August 2006, Mr WOZNIAK was placed on a bond to be of good behaviour with supervision for 12 months for two further breaches of domestic violence. On 24 October 2006, Mr WOZNIAK was sentenced to 12 months imprisonment to be suspended for 12 months for breach of domestic violence order (Attachment F).

95.    In November 2006 and April 2007, Mr WOZNIAK received fines by way of punishment for Contravene Apprehended Domestic Violence Order. His criminal history report shows a five year gap between 24 April 2007 and 13 February 2013. On 13 February 2013, Mr WOZNIAK was convicted of Contravene Prohibition/Restriction in AVO (Domestic). By way of punishment Mr WOZNIAK received a sentence of nine months imprisonment, suspended on entering a bond to be of good behaviour for nine months. On the same day he was also convicted of Contravene Prohibition/Restriction In AVO (domestic) and received a good behaviour bond for 12 months (Attachment F).

96.    In sentencing on 13 February 2013, Magistrate McNulty stated:

“In relation to the last offence, that is the offence of 31 January after being told by police, by everybody else, and me, not to do things — because I spoke to you on the last occasion, told you not to go anywhere near her — you did. It's an insult to this Court to do what you did and it deserves strong condemnation” (Attachment J, page 9).

97.    In addition to breaching domestic violence orders, Mr WOZNIAK has breached bonds. On 11 April 2014, Mr WOZNIAK was convicted of Common Assault and received a bond to be of good behaviour for 18 months and fined $800. On 6 March 2015 he received a call up on the Common Assault charge of 11 April 2014, for which he received two months imprisonment (Attachment F).

98.    Mr WOZNIAK has also breached parole. His parole was breached on 9 August 2005 and-on 30 September 2005, he was ordered to serve the balance of his sentence being five months and 14 days in prison (Attachment H, page 3).

99.    Mr WOZNIAK has been warned about his criminal offending and was issued with a Notice of Decision Not to Cancel Visa Under Section 501 of the Migration Act 1958 on 3 February 2014 (Attachment K). Mr WOZNIAK was issued with a notice of Intention to Consider Cancellation (NOICC) on 6 September 2013 whilst residing in the community. On 11 November 2013 the Department received a response from Mr WOZNIAK. A warning was issued on 3 February 2014 and to date the Department has not received an acknowledgement from Mr WOZNIAK. On 5 March 2014, the warning letter issued on 3 February 2014 was received by the Department ‘return to sender’. You may wish to note the warning letter was sent to the same address in the community as that of the NOICC issued on 6 September 2013. So whilst Mr WOZNIAK may not have received the warning of 3 February 2014, you may form the view that he was, at least, aware of the s501 visa cancellation process and that further offending could impact on his visa status.

…

102.    In his response to a notice of intention to consider cancellation (NOICC) dated 6 September 2013, Mr WOZNIAK expressed his remorse for his offending: “… I make no excuses for my behaveor [sic] as it was of very bad judgement. I am very sorry for that and do apoligise (Sic) (Attachment R). He further states: “I promise I will walk a straight line and not break the law of this land that I have come to call home” (Attachment R).

17    On 6 March 2015, Mr Wozniak pleaded guilty and was convicted of Breach Apprehended Violence Order. On the same day, he also pleaded guilty to Use Carriage Service to Menace/Harass/Offend and Common Assault.

18    The sentencing remarks of the magistrate on 6 March 2015 indicate that Mr Wozniak had between 11 October and 18 October 2014, left a series of messages on the phone of his former partner. The calls were made in relation to access to his children, and the messages were of an offensive and threatening nature and contained threats against of violence against both his former partner and her boyfriend.

19    In sentencing, Magistrate Thompson of the Local Court said:

The offences disclosed a repeated persistent nature of offending in respect to both sets of offences. They are serious offences in that they are offences of domestic violence.

The community expects and demands that the courts will treat seriously offences of domestic violence. People are entitled to have protection of the law afforded them from those with whom they were in an intimate relationship.

20    The Magistrate then convicted Mr Wozniak and sentenced him to imprisonment for 12 months to be released after serving three months on entering recognisance of $1,000 to be of good behaviour for two years, and imprisonment for 12 months with a non-parole period of three months with conditions and release subject to supervision. In addition, in relation to the earlier common assault for which Mr Wozniak was on a good behaviour bond, he was sentenced to imprisonment for two months.

21    Mr Wozniak has developed familial ties to the Australian community through his immediate family, consisting of his two daughters, his former partner and his step-daughter, all of whom reside in Australia. Mr Wozniak relied on letters provided by each of these persons in support of his application to the Minister to revoke the Decision.

3.2    The application to revoke the Decision

22    On 26 May 2015, Mr Wozniak was provided notice that the Minister was satisfied that he did not pass the character test and that as a consequence his Visa had been cancelled under s 501(3A) of the Act. He was notified that the Minister may revoke the cancellation under s 501CA(4) of the Act, and invited to make representations. The letter continued:

How to make representations about revocation of the decision to cancel your visa

If you decide to make representations about the revocation of the decision to cancel your visa, you can write to us using the attached Revocation Request Form. Under s499 of the Act which permits the Minister to issue written directions about the exercise of powers under the Act, the Minister has issued Direction 65 — Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA which identifies issues that are relevant to the revocation consideration. A copy of Direction 65 is enclosed for your information. You should address each paragraph in PART C of the Direction that is relevant to your circumstances.

Please note that if the decision-maker who makes the decision regarding whether or not to revoke the decision to cancel your visa is a delegate of the Minister, they must follow Direction 65. If, however, the Minister makes a revocation decision personally, he or she is not bound by Direction 65, although Direction 65 provides a broad indication of the types of issues that the Minister is likely to take into account in deciding whether or not to revoke the decision to cancel your visa.

23    Mr Wozniak subsequently lodged a request for revocation of the mandatory cancellation of his Visa. In it he said:

… I know I have messed up when it comes to the law. I have in the past always gone about getting matters resolved the wrong way not in a violent way but not the correct way when matters have to do with my children as with my last offence. Whereas instead of calling my wife and arguing with her when she wouldn’t let me see them on my Family Law Court appointed weekend I should have reported her to Family Law Court for not following Court orders… I will go thru [sic] proper Family Law Court channels to see my girls. As for if I were to get deported it would crush me and my girls. They are 11 and 12 years old and we are very close and do a lot of thing [sic] together when they are sick and their mother is working I watch and care for them. We go to the park and play. We go swimming. We do so much together. I love them and they love me. To break us up would be unbearable for them as well as me. We are a close family…

24    Letters were also provided by each of Mr Wozniak’s two daughters, H and S. Each spoke of their closeness with Mr Wozniak and the consequences to them personally if he were deported. In the letter from H (written with the assistance of her mother) she said:

… I have missed Dad these last couple of months. I couldn’t cope with Dad not being here and I don’t even know how I have managed.

I was devastated when my sister Jess told me that he was going to jail, my heart just crushed, but each day he was closer to coming home, it slightly got better but then Jess told me that he might be getting deported and the pieces I managed to pick up shattered even further than before with the rest of the my heart… Every single night I just cry and cry. I can never even ever go to bed without not being anxious.

25    The letter from S included the following:

I miss my Dad so much and I miss all of the things we used to do with him. Dad always did lots of great things with me… I need him to be here cheering me up and making me laugh like he always does. I go to a Catholic school and most things are high priced there. Dad would always half of whatever there was to pay. I don’t think I could live without my…

26    The letter from S is incomplete, trailing off as it does in the quotation set out above. An issue arises under the grounds for review as to whether, by not making inquiries as to the location of the balance of the letter, the Minister made a jurisdictional error.

27    The mother of Mr Wozniak’s children, Tammy Wozniak, also lodged a letter during which she said, inter alia:

I believe that deporting Alan would be extremely detrimental to the mental well-being of his two children. I am expressing this, due to my observation of the girls’ change in behaviour, and I feel it may worsen if he is not in their lives.

28    A similarly supportive letter was provided by Mr Wozniak’s step-daughter, Jessica Thwaites. Mr Wozniak provided a supplementary letter on 13 October 2015 in which he said:

I am writing this letter to inform you of recent events that are happening to both my children since I am facing deportation. My girls… are going to counselling to deal with the fact that I am in here. My eldest [S] is having a real bad time of it. She has started to cut herself (her mother told me yesterday). I speak to my girls every day and they cry and tell me that they want me home… I fear for [S’s] well-being. Both my girls need me to be with them and I worry that she [S] may do herself serious harm. …

3.3    The Decision

29    On 18 February 2016, the Honourable James McGrath, was appointed Parliamentary Secretary to the Minister for Immigration and Border Protection. By reason of s 19 of the Acts Interpretation Act 1901 (Cth), he is the Minister for the purposes of the Act.

30    On 17 March 2016, the Minister received the Statement of Issues setting out background information in relation to Mr Wozniak’s position. The Statement of Issues included 21 attachments. These included: a Conviction, Sentence and Appeals’ Report of the New South Wales Department of Corrective Services dated 11 March 2015; United States FBI identification record dated 19 December 2011; transcript of local court proceedings for 6 March 2015 and 13 February 2013; a statement from Mr Wozniak dated 6 September 2013; letters from Mr Wozniak’s daughters, S Wozniak and H Wozniak; a letter from Mr Wozniak’s former partner, Tammy Wozniak; other personal references; correspondence to and from Mr Wozniak; a copy of Ministerial Direction No 65 entitled “Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA”; and other procedural and substantive materials relevant to the Decision.

31    The Statement of Issues is marked with a stamp from the Minister’s office “received 17 March 2016”. It records at [3]:

An issues paper outlining the relevant issues for your consideration of whether or not to revoke decision of 26 May 2015 is at Attachment 1. Please record your decision and sign on the decision page at the end of the document. If you decide not to revoke the decision, a draft Statement of Reasons is at Attachment 2 for your signature.

32    A cover sheet to the Statement of Issues was addressed to the Assistant Minister for Immigration and signed by him dated 18 March 2016. As noted in [3], a draft statement of reasons (that is, the Decision referred to below as the decision record) was provided as attachment 2 of the Statement of Issues. The cover sheet provided the following options for the Minister to select. The Minister signified his selection by circling his chosen option. Those that he selected are rendered in bold below:

33    The Decision is set out at page 20 of the Statement of Issues and the decision record appears thereafter. The Decision commences with the following:

I have considered all relevant matters including an assessment of the character test as defined by s501 of the Migration Act 1958, and all evidence before me provided by, on behalf of, or in relation to Alan Francis WOZNIAK in connection with the possible revocation, under s501CA(4), of the decision under s501(3A) to cancel Mr WOZNIAK’s Class BS Subclass 801 Partner (Permanent) visa.

(Please circle the option you select)

34    The Minister then circled the following, signifying his Decision:

(c)    Mr WOZNIAK has made representations about revocation of the visa cancellation decision in accordance with the invitation and I am not satisfied that Mr WOZNIAK passes the character test (as defined by section 501). Nor am I satisfied that there is another reason why the original decision should be revoked. Accordingly, I have decided not to revoke the decision to cancel Mr WOZNIAK’s Class BS Subclass 801 Partner (Permanent) visa. My reasons for this decision are set out in the attached Statement of Reasons.

35    The decision record includes the following two paragraphs which state that the Minister has had regard to the materials contained in the Issues Paper (emphasis added):

10.    As I am not satisfied that Mr WOZNIAK passes the character test, I have considered, in light of Mr WOZNIAK’s representations, whether I am satisfied that there is another reason why the original mandatory visa cancellation decision should be revoked.

11.    In undertaking this task, I assessed all of the information set out in the Issues Paper and attachments. In particular, I considered Mr WOZNIAK’s representations and the documents he has submitted in support of his representations regarding why the original decision should be revoked.

36    The current application places particular emphasis on the treatment by the Minister of concerns regarding the health and well-being of Mr Wozniak’s two daughters in the event that the Decision was not made. This subject is dealt with in the decision record as follows:

Best interests of minor children

13.    In considering whether or not I am satisfied that there is another reason why the original decision should be revoked, I acted in conformity with Article 3 of the United Nations Convention on the Rights of the Child, and treated the best interests of any affected children under 18 in Australia as a primary consideration and have concluded that it is in the best interests of Mr WOZNIAK’s children for the visa cancellation decision to be revoked.

14.    Based on the available evidence, Mr WOZNIAK is the biological father of two Australian citizen children with Ms Tammy Thwaites (date of birth 6 January 1967). The details of the children are as follows:

•    [S] Wozniak … – Female – (13 years old)

•    [H] Wozniak … – Female – (11 years old)

15.    Mr WOZNIAK has separated from the children’s mother and has shared custody pursuant to consent orders of the Federal Magistrates Court of Australia at Albury (New South Wales).

16.    In his written submission, Mr WOZNIAK states that he provides care for his children when they are sick while their mother is working, and takes them to the park and swimming. Mr WOZNIAK states that to break the close contact he has with his children would be unbearable for him and his children which I accept.

17.    The nature and extent of the relationship Mr WOZNIAK has with his two daughters is displayed in the letters provided by both [S] and [H] written to their father whilst he was incarcerated, demonstrating the children’s devotion to their father. In his Personal Details Form, Mr WOZNIAK advises that whilst in prison he would communicate with his daughters via letters and limited telephone calls due to the children’s school hours.

18.    In a letter of support, Mr WOZNIAK’s former partner Tammy Wozniak states that the children are very hurt and angry and showing signs of depression. She also states that their school attendance has suffered due to their fear of their father’s possible deportation.

19.    Mr WOZNIAK writes of his particular concern for his eldest daughter [S]. Mr WOZNIAK states that he is worried that she may do herself serious harm.

20.    Having regard to the submissions, I find that Mr WOZNIAK shares a close and direct parental relationship with [S] and [H]. I also find that the best interests of [S] and [H] would be served by the revocation of the cancellation decision, especially given [S]’s current mental health issues.

37    The conclusions of the Minister also attracted attention in the current application and it is appropriate to set them out also:

72.    I considered all relevant matters including (1) an assessment of whether the person has made representations in accordance with the invitation for the purposes of s501CA(4)(a); (2) an assessment of whether I am satisfied that the person passes the character test (as defined by section 501) for the purposes of s501CA(4)(b)(i); (3) an assessment of whether I am satisfied that there is another reason why the original decision should be revoked for the purposes of s501CA(4)(b)(ii); and (4) all evidence available to me, including evidence provided by, or on behalf of, Mr WOZNIAK.

73.    I concluded Mr WOZNIAK has made representations in accordance with the invitation.

74.    I am not satisfied that Mr WOZNIAK passes the character test (as defined by section 501).

75.    In considering whether, in light of Mr WOZNIAK’s representations, I was satisfied that there is another reason why the original cancellation decision should be revoked, I gave primary consideration to the best interests of Mr WOZNIAK’s children and have found that their best interests would be served by the revocation of the mandatory visa cancellation decision.

76.    In addition, I have considered the length of time Mr WOZNIAK has made a positive contribution to the Australian community (13) years and the consequences of my decision for his other family members.

77.    On the other hand, in considering whether I was satisfied that there is another reason why the original decision should be revoked, I gave significant weight to the very serious nature of the crimes committed by Mr WOZNIAK, that of Contravene Apprehended Violence Order. I am also mindful of the principle that persons who commit serious crimes should expect to forfeit the privilege of remaining in Australia.

78.    Further, I find that the Australian community could be exposed to great harm should Mr WOZNIAK reoffend in a similar fashion. I could not rule out the possibility of further offending by Mr WOZNIAK.

79.    In reaching my decision about whether I am satisfied that there is another reason why the original decision should be revoked, I concluded that Mr WOZNIAK represents an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed the best interests of his children as a primary consideration and other, family members, and any other considerations as described above. These include his lengthy residence, employment, and familial ties to Australia, and the hardship Mr WOZNIAK, his family and social networks will endure in the event the original decision is not revoked.

80.    Having given full consideration to all of these matters, I am not satisfied, for the purposes s501CA(4)(b)(ii), that there is another reason why the original decision to cancel Mr WOZNIAK’s visa should be revoked. Accordingly, I have decided not to revoke the original decision to cancel Mr WOZNIAK’s Class BS, Subclass 801 Partner (Permanent) visa.

4.    THE RELIEF SOUGHT AND GROUNDS RELIED UPON

38    The relief sought in the proposed amended originating application is as follows:

1.    Order in the nature of certiorari quashing the decision refusing to revoke the cancellation of the Applicant’s Class BS Subclass 801 Partner (permanent) visa made by the Respondent on 18 March 2016.

2.    Order in the nature of mandamus that the Applicant’s request for revocation of a mandatory visa cancellation under s 501(3A) of the Migration Act 1958 dated 11 June 2015 be remitted to the Respondent to be determined according to law.

39    The grounds proposed to be relied upon for the relief sought are as follows:

1.    The decision refusing to revoke the cancellation of the Applicant’s Class BS Subclass 801 Partner (permanent) visa made by the Respondent on 18 March 2016 (the “Decision”)·was not a decision made under the Migration Act 1958 (the “Act”) because, by reason of the Respondent's failure to consider, including by engaging in an active intellectual process as to:

a.    the Applicant’s claims as to the best interests of each of his children by reference to the letters from each of [H] Wozniak, [S] Wozniak and Tammy Wozniak to the Respondent dated 14 September 2015 and the representation made by the Applicant to the Respondent dated 13 October 2015;

b.    the consequences that a decision of non-revocation would have on each of [S] Wozniak and [H] Wozniak (his “children”) including as to their human development - their health, including their psychological health and happiness, their social and educational development as balanced, nurtured young citizens of Australia;

c.    the best interests of each of his children, including the mental health and wellbeing of each of his children,

the Respondent failed to complete his jurisdiction or left that jurisdiction constructively unexercised.

2.    The decision was not a decision made under the Act because, by reason of the Respondent’s failure to consider, including by engaging in an active intellectual process, as to the cumulative effect of the following circumstances:

a.    The Federal Magistrates Court of Australia ordered by consent that the Applicant communicate with his children, by telephoning them on their mother’s home telephone number each Monday, Wednesday and Friday after 5.00 pm and on each child's birthday and if for any reason he was unable to speak with the children at those times he was to leave a message on the mother’s answering machine informing her that he had called and she would send a text message as soon as possible nominating a suitable time for him to make a return call within the next twenty four hours.

b.    On 13 February 2013 the Local Court of New South Wales ordered, in the absence of the written orders referred to in a., that the Applicant not contact the mother of his children except as permitted by the orders of the Federal Magistrates Court.

c.    By reason of the orders referred to in a. and b., at the time of offending the Applicant had no practical means of contacting his children because if the mother of his children answered the telephone he was in breach of the orders of the Local Court and if their mother did not correspond with the Applicant as to an alternative time to contact his children by telephone he would lose contact with his children.

d.    At the time of the Respondent’s decision the mother of his children supported the revocation of the cancellation decision and made submissions in support of that revocation,

one of the determinative issues, namely, that the Australian community could be exposed to great harm should the Applicant reoffend in a fashion similar to his contravention of an apprehended violence order was made without consideration of the claims or an integer of the claims that squarely arose from the material before the Respondent thereby ignoring a matter material to that consideration that left the Respondent’s jurisdiction constructively unexercised.

3.    The Respondent failed to accord the Applicant procedural fairness in the conduct of the review of his request for revocation by failing to:

a.    Afford the Applicant a reasonable time period to seek variation to or relief from the apprehended violence orders prohibiting him from contacting the mother of his children in whose custody they resided, so as to enable him to obtain proper professional assessments of their mental health and wellbeing or otherwise affording him a reasonable opportunity for him to do so.

b.    Give the Applicant a reasonable opportunity of ascertaining and responding to the issues that were determinative of his request, namely:

i.    The threatening and harassing telephone messages left by the Applicant on the mother's telephone were crimes of a very serious nature.

ii.    The risk that the Australian community could be exposed to great harm should the Applicant make such threatening and harassing phone calls to the mother of his children again.

iii.    The principle that persons who commit serious crimes, which include leaving other persons threatening and harassing telephone messages, should expect to forfeit the privilege of remaining in Australia (together the “Determinative Issues”).

c.    Give the Applicant an opportunity to adequately respond to the Respondent's proposed course to not make findings as to the matters referred to in ground 1a., 1b., and 1c. above and not make enquiries as to those matters and instead prefer the Determinative Issues to the best interests of each of his children.

d.    Give proper notice of the Respondent's proposed departure from giving primacy to the best interests of each of his children and afford the Applicant an adequate opportunity to respond to that proposed course.

e.    Give proper notice of the Determinative Issues that were not obviously open on the known material, and in the case of the issue summarised at ground 3.b.iii. not apparent from its nature or the terms of the Act, and a reasonable opportunity to respond to those issues.

f.    Give proper notice that he did not propose to materially consider the consequences that a decision of non-revocation would have on each of his children, their health, including their psychological health and happiness, their social and educational development as balanced, nurtured young citizens of Australia and an adequate or reasonable opportunity to respond to that approach to the consideration of the best interests of each of his children.

g.    Afford him a reasonable opportunity to appear and present his case.

4.    The Respondent's failure to take a simple administrative step of an office or housekeeping nature to clarify the completeness of the facsimile provided to him and dated 25 September 2015 subverted the observance by the Respondent of his obligation to give procedural fairness including by inviting the Applicant to make representations pursuant to s 501CA(3) of the Act.

5.    The Respondent misconstrued his discretion in s 501CA(4) of the Act by applying a principle that “persons who commit serious crimes should expect to forfeit the privilege of remaining in Australia” a principle with no statutory foundation in the Act or evidentiary foundation in the material before the Respondent resulting in the Respondent asking the wrong question and leaving his discretion constructively unexercised.

6.     [Not pressed]

5.    THE APPLICATION FOR REVIEW

5.1    Ground 1: Failure properly to consider the best interests of the children

5.1.1    The Parties’ Submissions

40    Mr Wozniak submitted the best interests of each of S and H Wozniak were primary considerations that the Minister was bound to take into account in the exercise of his discretion. This required the Minister to consider the consequences that a decision of non-revocation would have on each of the children, namely the effect on them of removal of Mr Wozniak from Australia. Each of S, H and their mother wrote letters to the Minister documenting the hardship that they would experience in the event that Mr Wozniak was deported from Australia. Mr Wozniak submitted that this information was critical and relevant to his personal circumstances and the best interests of H and S and the Minister was bound to consider it; Picard v Minister for Immigration and Border Protection [2015] FCA 1430 (Picard) at [42] per Tracey J.

41    Mr Wozniak further submitted that the Minister’s obligation to consider the information obliged him to “really and genuinely consider the information in the interests of [S] and [H] Wozniak in the sense of engaging in an active intellectual process in relation to the information”; Tickner v Chapman [1995] FCA 1726; (1995) 57 FCR 451 at 462, 476-7, 494-6 (Black CJ, Burchett, Kiefel JJ respectively) (Tickner).

42    Mr Wozniak relied, in effect, on three substantive bases to establish this ground.

43    First, he submitted that the Minister fell into error by making no findings as to the health, including psychological health and happiness, and social and educational development, of H or S Wozniak, or as to their mental health and well-being as required in Perez v Minister for Immigration and Multicultural Affairs [2002] FCA 450; (2002) 119 FCR 454 (Perez) at [118] per Allsop J.

44    Secondly, that the Minister failed to conduct an investigation to see whether the claims made by the applicant and the children’s mother as to their mental health and well-being was true, or to investigate the apparently missing page of the letter from S Wozniak.

45    The third submission falls into two parts. The first is that the decision record failed to refer to the letters from S and H dated 14 September 2015. As the Minister did not correct this failure, this compels the inference that those letters were not considered, and were not material to the exercise of the discretion. The second is that circumstantial evidence surrounding the manner in which the Minister arrived at his Decision gives rise to the inference that he did not fulfil his obligation properly and genuinely to consider the interests of the children.

46    The Minister submitted in response first, that Mr Wozniak has not given full weight to the language used in the decision record and the cross-reference in the decision record made to the Statement of Issues. These matters demonstrated that the Minister did consider all of the evidence available. Secondly, that when so considered, it is apparent that the Minister did have regard to the relevant claims that were made to the effect that H and S would suffer hardship, including psychological hardship if the Decision was not revoked. Thirdly, that in the circumstances of the present case, the Minister did not have an obligation to make inquiries or investigate; Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 259 ALR 429 (SZIAI) at [25]. Fourthly, that, as a matter of fact, it was not the case that the Minister failed to have regard to the letters of H and S, or the claims advanced in respect of their well-being. Indeed, the Minister submitted that they were given full weight such that he assumed that a decision to revoke the cancellation was in the best interests of the children. Fifthly, the Minister submitted that no inference of a failure to consider the best interests of the children could be said to arise from the circumstantial matters to which Mr Wozniak’s submissions drew attention.

5.1.2    Consideration

47    Proposed ground 1 of the application substantially rests on the contention that the Minister failed adequately to turn his mind to the best interests of the applicant’s children.

48    The decision record refers in paragraphs 13 to 20 (quoted above) to the requirement that the Minister take into account the best interests of the children. Relevantly, the Minister:

(a)    refers at [16] to Mr Wozniak’s submission that he provides care for his children when they are sick, when their mother is working, and takes them to the park and swimming. It accepts his submission “that to break the close contact he has with his children would be unbearable for him and his children”;

(b)    observes, at [17], Mr Wozniak’s ongoing contact with his children whilst he was incarcerated and accepts that their letters to him whilst he has been incarcerated demonstrates their devotion to him;

(c)    notes, at [18], the submission of the children’s mother that they are hurt, angry and showing signs of depression and that their school attendance has suffered as a result of their fear that their father would be deported; and

(d)    notes, at [19], Mr Wozniak’s particular concern for his eldest daughter, [S], who may do herself serious harm.

49    The decision record concludes at [20]:

Having regard to the submissions, I find that Mr Wozniak shares a close and direct parental relationship with [S] and [H]. I also find that the best interests of [S] and [H] would be served by the revocation of the cancellation decision, especially given [S]’s current mental health issues.

50    The findings so summarised are followed by the Minister’s conclusion, in relation to the interests of the children, at [75] which are as follows (emphasis added):

In considering whether, in light of Mr Wozniak’s representations, I was satisfied that there is another reason why the original cancellation decision should be revoked, I gave primary consideration to the best interests of Mr Wozniak’s children and have found that their best interests would be best served by the revocation of the mandatory visa cancellation decision.

51    Article 3 of the United Nations Convention on the Rights of the Child (Convention) provides:

1.    In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

2.    States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.

3.    States Parties shall ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health, in the number and suitability of their staff, as well as competent supervision.

52    The language of Article 3 avoids putting the best interests of the child as the only consideration. It does no more than give those interests first importance along with such other considerations as may, in the circumstances of a given case, require equal but not paramount weight; Minister of State for Immigration and Ethnic Affairs v Ah Hin Teoh [1995] HCA 20; (1995) 183 CLR 273 (Teoh) at 289 (per Mason CJ, Deane J).

53    If a decision maker is making a migration decision affecting children, there is a legitimate expectation that their interests will be a primary consideration, and will not be treated otherwise without an opportunity to be heard; Teoh at 291 – 292. It follows, that in those cases where the best interests of a child fall to be considered within Article 3, the legitimate expectations of consideration of the best interests of a child does not itself dictate the outcome of the exercise of the discretion; Brown v Minister for Immigration and Border Protection [2015] FCAFC 141; (2015) 235 FCR 88 (Brown) at [28] (Rares, Flick and Perry JJ). See also Wan v Minister for Immigration and Multicultural Affairs [2001] FCA 568; (2001) 107 FCR 133 at [31] – [34] per Branson, North and Stone JJ.

54    The reasons of the Minister, summarised above, make apparent that he did have regard to the consequences of cancelling the visa upon the children’s interests. He expressly took those interests into account as a primary consideration.

55    I accept the submission put by counsel for the Minister, Ms Francois, that despite Mr Wozniak’s history of domestic violence which, it might readily be inferred, does have an impact on children, the Minister plainly concluded in these passages that it would be in the best interests of the children for the decision to cancel the visa to be revoked.

56    It is against this background that Mr Wozniak’s first contention that the Minister was obliged to make findings as to S and H’s mental health, psychological health and happiness should be considered. This submission drew particular attention to the letters of 14 September 2015 from the children, the letter from their mother and the representations made by the respondent.

57    The letters attached are heart rendering, and refer to the sadness that the daughters will suffer. They support the matters summarised at [13] – [20] of the decision record, but do not raise any different or additional considerations beyond the matters recorded at a more general level in the decision record. In particular [18], [19] record the concerns of the children’s parents that they are suffering psychological harm from their separation from their father. It is true, as Mr Wozniak submits, that the decision record does not refer directly to the letters of S and H quoted at [24] – [25] above. However, the Statement of Issues at [40], [42] – [46] refers in terms to these letters, and quotes parts of them.

58    In these circumstances, it is plain to me that these letters were considered by the Minister. They were referred to as attachments to the Statement of Issues (“evidence of other material referred to in this Paper”) and at [11] of the decision record, where the Minister says that he has assessed “all of the information set out in the Issues Paper and attachments”.

59    Mr Wozniak submitted that the decision record failed to make any findings of fact about the psychological state of H or S or findings as to their likely happiness and well-being in the event that Mr Wozniak is deported. He referred to Tickner, where members of the Full Court (Black CJ, Burchett and Kiefel JJ respectively at 462, 476-7 and 494-6) identify the obligation on the part of the Minister to have regard to the representations made and consider them in the sense of applying an active intellectual process to them. Counsel submitted that whilst the Minister might have adverted to the daughters’ letters by reference to the Statement of Issues, he did not consider them on two levels, first, because the decision record did not reflect a process of reasoning beyond mere recital, and made no findings, and secondly, because the Minister adopted a “pro forma” or “tick the boxes” approach to the decision making.

60    Despite the care with which those submissions were put, I am unable to agree with either.

61    First, in several parts of the decision record, the Minister notes that he has considered all the evidence provided and has assessed the materials referred to and attached to the Issues Paper. The mere fact that the Department prepared the Issues Paper and draft reasons for decision by the Minister does not lead to the conclusion that he has not considered their contents. Nothing in the contents of the decision record suggests a failure to avert to the specific circumstances of the children.

62    In this context, the present case is quite different to the factual position in Nweke v Minister for Immigration and Citizenship [2012] FCA 266; (2012) 126 ALD 501 at [17] – [21] (Jagot J) where the children’s best interests were left at a purely hypothetical level. In that case her Honour said:

19.    Nothing in the language of the Minister’s decision or reasons suggests the Minister assumed that the children’s best interests were for their father’s visa not to be cancelled and that the Minister weighed the risk of harm to the Australian community from the applicant’s possible re-offending against those interests. To the contrary, the Minister’s reasons as a whole indicate that the Minister either found or assumed (it is not clear which) only that it may be in the children’s best interests for their father’s visa not to be cancelled, presumably on the basis that their interests may be significantly affected (again, presumably adversely by reason of the fact that they may suffer emotional and financial hardship) by cancellation of their father’s visa.

20.    … where the children’s best interests were left at the level of mere hypothesis, it is hardly surprising that the positive finding of a risk of harm to the Australian community from even the small risk of the applicant re-offending outweighed the hypothesis of possible harm to the best interests of the applicant’s children…

21.    Applying the reasoning in Vaitaiki and Wan it is apparent that the Minister did not in fact treat the best interests of the applicant’s children as a primary consideration in the decision whether or not to cancel the applicant’s visa. The Minister could not do so because he never confronted the central question of what the best interests of the children required him to decide with respect to the proposed deportation of their father. …

63    By contrast, in the present matter, the Minister specifically averted to the subjective circumstances of H and S and included those in the balancing exercise that he conducted.

64    In this context, it is also apparent that the Minister had regard to each of the representations made by Mr Wozniak as to the harm that would be visited upon his children, should he be deported. A factual distinction can also be drawn between the present case and decision of the Court in Perez, in which Allsop J (as he then was) upheld the challenge to that decision on the basis that the Minister’s delegate failed to take into account the best interests of the children as a primary consideration. His Honour found that not only did the delegate fail to say that he had taken the children’s interests into account as a primary consideration, he also did not otherwise display an appreciation of the kinds of considerations relevant to minor children which form their best interests (see Perez at [118] – [119]).

65    In my view, the decision record in the present case reflects a process of reasoning that accords with the position of the Minister in Brown and may be distinguished on the facts from Perez.

66    In Brown the Full Court said at [34]:

… It was for these reasons that Allsop J found that the delegate’s decision fell short of what Teoh 183 CLR 273 required (119 FCR at 486 [121]). By contrast, in this case the Minister expressly found that the best interests of the children were served by non-cancellation, turned his mind to the relevant evidence, and stated that he took those interests into account as a primary consideration.

67    Next, Mr Wozniak submits that the Minister had a duty to investigate two matters, first, whether or not the mental health of the children would, as a matter of fact, be harmed by the deportation of Mr Wozniak and secondly, the missing page of the letter from S Wozniak.

68    Counsel for the Minister referred to the decision of the plurality in SZIAI at [25] (per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ):

Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a “duty to inquire”, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the Tribunal by the Migration Act is a duty to review. 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. …

(citations omitted)

69    In my view, there was no affirmative obligation upon the Minister in the present circumstances to make any inquiry or make a specific finding of fact as to the state of mental health of Mr Wozniak’s children. Mr Wozniak’s submission in this regard can be addressed on two levels.

70    First, as a matter of fact, the Minister accepted the representations advanced to the effect that the best interests of the children would be for Mr Wozniak to remain in Australia. He averted to the well-being of each of the children and made a finding to that effect at [75]. He did so by reference to the particular matters identified at [13] – [20] of the decision record. Accordingly, the Minister accepted Mr Wozniak’s submissions at their highest and took them into consideration. It is difficult to see how Mr Wozniak could have done better from this by a positive factual finding as to the state of mental health of each of S and H.

71    Secondly, I accept the Minister’s submission that an inquiry into the mental health of two minor children is not an inquiry as to an obvious or easily ascertained fact within SZIAI. The children are not under the Minister’s control and he could not compel them to attend upon a psychiatrist for the purpose of any evaluation. There are complexities associated with ascertaining the mental state of children which are no doubt exacerbated by the fact that the offences for which Mr Wozniak has been charged included offences of domestic violence. In those circumstances, it would not in any event fall to the Minister to make such inquiries.

72    In relation to the missing portion of S’s letter, it is apparent from the materials that part of the letter failed to arrive with the Minister when it was sent by facsimile to him. The failure to locate this page is relied upon as the basis for ground 4 of the current application, which is addressed in detail below. In relation to the present ground, which concerns a failure to consider the best interests of the children, in my opinion this submission cannot succeed. The best interests of the children were expressly taken into account as a primary consideration. That consideration favoured revocation of the Decision. Further, there is no evidence as to the content of the final page which, it might reasonably be assumed, could have been obtained by Mr Wozniak from his daughter and supplied in the present proceeding.

73    Further, having taken into consideration the factors mentioned above, and expressly referred to them in his conclusions at [75] as to the outcome which suited the best interests of the children, the absence of the second page of the letter does not add anything more to the matters for consideration by the Minister.

74    Finally, Mr Wozniak has submitted that I should infer that the Minister did not himself exercise intellectual rigour in considering the position of his children by reason of:

(a)    the fact that the Statement of Issues was received by the Minister one day before the Decision was made;

(b)    the fact that the Minister’s assent to the draft decision record was conveyed by circling options offered by the Department in a “tick the boxes” method;

(c)    the fact that the Minister was appointed on 18 February 2016 and had “no demonstrable training, expertise or experience” as to his obligation to properly consider the rights of a child in the exercise of his powers;

(d)    the fact that the draft decision record had been prepared by the Department for the Minister; and

(e)    the apparently pro-forma language of the conclusion expressed in the decision record, which bore a striking similarity to the final paragraphs recorded in BCR16 v Minister for Immigration and Border Protection [2016] FCA 965 (BCR16) at [43] – [46].

75    The difficulty with this submission is that it distracts attention from the subject matter of the application for review, which is the decision record. In that decision record, the Minister has confirmed that he has considered the matters to which the decision refers (including the Statement of Issues and the attachments thereto) and has reached the views that he identifies. Mr Wozniak’s submission would have the Court reach a conclusion that the Minister is not to be believed when he says that he had considered these matters. There is no factual basis upon which it can be concluded or inferred the Minister was not telling the truth when he put his name to the document and signified that he was not satisfied “that there is another reason why the original decision should be revoked”.

76    In this context, the fact (identified in [74](a) above) that the date of the Decision was apparently one day after the date that the departmental note containing the Statement of Issues and draft decision record does not of itself demonstrate a failure to consider. The Statement of Issues could have been the subject of earlier drafts or discussions, or the Minister may have set aside time and read each document within the one day. Further, the observed commonality of language ((d) above) in the final paragraphs of the decision record with the decision in BCR16 does not necessarily reflect a failure to consider. Those paragraphs are to be read in the context of the decision record as a whole (including the cross reference to the Statement of Issues). In that context, [13] – [20] of the decision record do indicate a specific basis for the conclusion at [75]. It is perhaps unfortunate that the combination of factors in (a) – (d) might give the appearance that the Minister has taken a superficial approach to consideration of this case. However, when attention is paid to the language used within the decision record as a whole, it is not possible to conclude that specific regard was not paid to the best interests of H and S in the exercise of discretion required under s 501CA of the Act. The matters raised by Mr Wozniak do not justify the conclusion to any different effect.

77    Accordingly, I dismiss ground 1 of the application.

5.2    Ground 2: Failure to consider circumstances relating to offences

5.2.1    The submissions

78    In ground 2, Mr Wozniak contends that the Minister failed to consider a determinative issue, namely, the likelihood of exposure of the Australian community to harm should he reoffend. In his written submissions the failure was cast as a failure of the Minister to take account of claims that he made that there were ameliorating or extenuating factors which lead to his breach of the Apprehended Violence Order (AVO) and subsequent sentence of 12 months’ imprisonment. The claims said not to have been considered by the Minister were set out in (a) – (d) of ground 2, which is quoted in [39] above. Those claims were to the effect that the breach of the AVO arose because of a conflict between orders of the Federal Magistrates on the one hand, which permitted Mr Wozniak to telephone the mother’s home at certain times, and the terms of the AVO made by the Local Court of New South Wales.

79    Mr Wozniak submits that the failure to consider his claims going to this issue amounted to failure to consider a relevant consideration and constituted jurisdictional error.

80    The Minister responds by submitting first, that there is no legal obligation upon the Minister to consider factors personal to an applicant in relation to his reoffending and secondly, that as a matter of fact the considerations raised do not provide ameliorating circumstances. This is because in 2013 Mr Wozniak was also found to have acted in breach of an AVO in very similar circumstances, he was warned about taking matters into his own hands and was sentenced. As a consequence, even if the Minister was obliged to take the matter into consideration, this would not lead to any different result.

5.2.2    Consideration

81    In Minister for Immigration and Multicultural and Indigenous Affairs v Huynh [2004] FCAFC 256; (2004) 139 FCR 505 (Huynh) Kiefel and Bennett JJ said:

73.    … And in Jahnke v Minister for Immigration & Multicultural Affairs [2001] FCA 897 Drummond J observed that although the discretion is not fettered by any express limitation, it must nevertheless be exercised by reference to considerations identified from the subject-matter, scope and purpose of the statute (at [17]).

74.    A reference to those matters confirms the breadth of the Minister’s discretion. The object of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens: s 4(1). To advance that object provision is made for the removal or deportation from Australia of non-citizens whose presence is not permitted by the Act: s 4(4). If the Minister were able, consistent with the object of the Act, to consider a matter as broad as the national interest, in determining whether a person ought to be permitted to remain in Australia, it does not seem possible to imply some obligation on the Minister’s part to consider specific factors, personal to the visa holder, such as the circumstances surrounding the offences they have committed. By way of illustration, the Minister may consider that the national interest requires that the commission of a particular type of offence will inevitably result in the cancellation of a visa, where there has been a sentence to imprisonment for the requisite term. To construe the section as requiring the Minister to consider factors such as the level of involvement of the visa holder in the offences would cut across that broad discretion. It follows in our view that the obligation of which his Honour the primary judge spoke cannot be read into s 501.

82    The High Court of Australia endorsed Huynh in relation to this point in Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom [2006] HCA 50; (2006) 228 CLR 566 at [127] (Heydon and Crennan JJ, Gleeson CJ agreeing at [1]), observing that it is not possible to imply into the Act “some obligation on the Minister’s part to consider specific factors, personal to the visa holder, such as the circumstances surrounding the offences they have committed”. More recently, a majority of the Full Court of the Federal Court in Moana v Minister for Immigration and Border Protection [2015] FCAFC 54; (2015) 230 FCR 367 at [73] (Rangiah J, North J agreeing) observed that Huynh is direct authority against the proposition that the Minister is bound to consider factors personal to the visa holder.

83    This line of authority indicates that the four considerations raised by Mr Wozniak as extenuating or ameliorating factors going to the reasons for breaching the AVO are not considerations that the Minister was bound to take into account. Accordingly, a failure on the part of the Minister to take them into consideration does not result in jurisdictional error.

84    Having reached this conclusion, it is unnecessary to consider the Minister’s second argument, to the effect that the four considerations raised would in any event not have any ameliorative effect, when taken in the context of Mr Wozniak’s conduct as a whole. The fact is that the Minister did not in terms refer to or take them into account. However, there is some force in the factual observation made by the Minister that Mr Wozniak’s position is unlikely to be improved if one considers not only the factors surrounding the 2015 AVO but also the similar facts that gave rise to his earlier AVO.

85    Accordingly, I dismiss ground 2.

5.3     Ground 3: Failure to accord procedural fairness

5.3.1    The applicant’s arguments

86    Ground 3 identifies seven bases upon which Mr Wozniak alleges that the Minister failed to afford him procedural fairness. Central to his argument as presented was the contention that the following three issues were determinative of the Minister’s decision (Determinative Issues):

(a)    the threatening and harassing telephone calls made by the applicant to Tammy Wozniak were crimes of a very serious nature;

(b)    the risk that the Australian community could be exposed to great harm should such phone calls be repeated; and

(c)    the principle that persons who commit serious crimes should expect to forfeit the privilege of remaining in Australia (which was defined as the “deportation principle”).

87    These issues were, Mr Wozniak submitted, given more weight and preferred to the best interests of S and H and their mental health and well-being. In circumstances where Mr Wozniak was at all material times incarcerated, the Minister was obliged to identify to him the Determinative Issues and to advise him that he proposed to prefer those issues to the best interests of S and H. None of the Determinative Issues were obviously open on the known material. Further, Mr Wozniak submitted that the Minister failed to investigate the mental health and well-being of H and S and was at least obliged to provide him with a reasonable opportunity to obtain medical evidence of the mental health and well-being of the children. In failing to take either of these options, the Minister departed from giving primary consideration to the best interests of the children and failed to give notice to Mr Wozniak of his intention to do so, or give him an opportunity to respond or to make findings in relation to those matters.

5.3.2    Consideration of ground 3

88    The purpose served by the imposition on decision makers of an obligation to accord procedural fairness to those who may be affected by their decisions is the avoidance of “practical injustice”; Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 at 14.

89    The content of the obligation in cases arising under the Act will be influenced by, amongst other things, the provisions of Ministerial Direction 65, made under s 499 of the Act; Picard at [41].

90    In the present case the applicant was, by letter dated 26 May 2015 provided with notice of the cancellation of the Visa and was invited to make representations about revoking the Decision within 28 days. The letter included a copy of Direction 65 and said:

… If, however, the Minister makes a revocation decision personally, he or she is not bound by Direction 65, although Direction 65 provides a broad indication of the types of issues that the Minister is likely to take into account in deciding whether or not to revoke the decision to cancel your visa.

91    In Picard Tracey J said at [42]:

If does not follow that, in all cases, the Minister will accord procedural fairness simply by complying with the requirements of s 501CA(3). Once the invitation to make representations is extended to a visa holder it falls to the visa holder, if he or she wishes to do so, to provide information and submissions to the Minister in an effort to persuade the Minister that a revocation decision should be made. Those representations will be made in the knowledge that the Minister is likely to be guided by some or all of the considerations referred to in Direction 65. The applicant will, therefore, be in a position to provide the Minister with information relating to those considerations, including information which might seek to anticipate and allay concerns which the Minister might harbour relating to the applicant’s circumstances and conduct. …

92    In relation to the general obligation to afford procedural fairness, in Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29; (2016) 90 ALJR 901 at [83] the High Court of Australia noted that ordinarily, affording a reasonable opportunity to be heard in the exercise of a statutory power to conduct an inquiry requires that a person whose interest is apt to be affected be put on notice of: the nature and purpose of the inquiry; the issues to be considered in conducting the inquiry; and the nature and content of information that the repository of power undertaking the inquiry might take into account as a reason for coming to a conclusion adverse to the person.

93    In the present case the Minister provided Mr Wozniak with notice of each of the matters which fall within the Determinative Issues. Direction 65 at [13] informed him that the three primary considerations were the protection of the Australian community from criminal or other serious conduct, the best interests of minor children in Australia and the expectations of the Australian community. Paragraph 13.1.1 of Direction 65 identified that the nature and seriousness of the conduct would be taken into account, including the principles set out in 13.1.1(a) – (h), which traverse issues such as the principle that crimes committed against vulnerable members of the community, such as minors, are serious, the sentence imposed for crimes, the frequency of offending, the cumulative effect of repeated offending. Paragraph 13.1.2 identifies that the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct is also taken into account. In subparagraph (1) of 13.1.2, the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Subparagraph (2) directs attention, cumulatively, to the nature of the harm to individuals or the Australian community, and the likelihood of the non-citizen engaging in other criminal or serious conduct, including the risk of re-offending.

94    The letter of 26 May 2015 also drew Mr Wozniak’s attention to information in the possession of the Department at the time of making the decision to cancel the Visa, which included a conviction, sentences and appeals report from the NSW Department of Corrective Services dated 11 March 2015, a warning about future conduct following a prior decision not to cancel the Visa, dated 3 February 2014, his response to the notice of intention to cancel the Visa received on 11 November 2013 and the transcript of the proceedings of Griffith Local Court on 13 February 2013.

95    In light of these matters, it is apparent that the premise of Mr Wozniak’s submission that he was not notified of, and had no opportunity to respond to the Determinative Issues is not made out. He was informed that the crimes that he committed were regarded as serious, that his persistent re-offending was a matter for consideration and that the Australian community would not tolerate such conduct.

96    One of Mr Wozniak’s submissions is the complaint that he was not afforded procedural fairness because the Department afforded him only 28 days to respond to the invitation to make submissions. This was, he submitted, unfair because he faced a number of difficulties at the time, including the fact that he was incarcerated, and he had not opportunity to obtain medical evidence to support the contention that his daughters were and would suffer mental and other harm in the event that he is deported. However, this complaint is to be understood against the background where Mr Wozniak made no request for an extension of time within which to make his representations.

97    Further, it is to be noted that (as recorded in the Statement of Issues at [99], quoted in [16] above) this was not the first time upon which Mr Wozniak was notified of the consequences to his Visa status that may arise from his criminal reoffending. He was issued with a notice of intention to consider cancellation of his Visa on 6 September 2013 and a response was provided. On the earlier occasion he had made representations which were ultimately successful.

98    In these circumstances, Mr Wozniak has not established that the time afforded to him to make the representations was inadequate. The Minister could not, in the circumstances, be expected to assume that the 28 days allowed would be inadequate.

99    Nor, in my view, was Mr Wozniak entitled to expect that the Minister would procure medical evidence concerning the mental or general well-being of his children. In this context it is to be noted that [20], [75] of the decision record demonstrate that in weighing the relevant considerations, the Minister determined that the best interests of the children would be served by revocation of the cancellation of the Visa. Accordingly, as a practical matter it is difficult to see what more such evidence could have added, given the findings in the decision record at [20], [75]. Further, as noted above at [70] – [72], the Minister had no control or right to procure such evidence.

100    Accordingly, ground 3 of the application is dismissed.

5.4    Failure to obtain the complete letter – ground 4

101    In ground 4, Mr Wozniak contends that the Minister failed to take a simple administrative step of a “housekeeping nature” to clarify the completeness of the facsimile dated 23 September 2015 containing the letter from S. This, he contends, subverted the observance by the Minister of his obligation to give procedural fairness by informing him that the missing portions of the letter had not been considered, and inviting him to make representations.

102    In his written submissions, Mr Wozniak contended that, in circumstances where the best interests of S were a primary consideration and where her father had claimed that she was self-harming and was of the opinion that she may do herself serious harm, it was incumbent on the Minister to ensure that her claims were considered in their totality. The failure to clarify the completeness of the letter was a simple step that should have been taken: SZJBA v Minister for Immigration and Citizenship [2007] FCA 1592; (2007) 164 FCR 14 at [59] per Allsop J (as he then was). In oral reply submissions the applicant clarified that his position was; whilst there was no obligation on the Minister to make an inquiry as to the missing page of the letter, in circumstances where no inquiry was made and in fact he made no findings as to the mental health and wellbeing of the children, then he was departing from the requirement to give primacy to the best interests of those children. He was obliged to give Mr Wozniak a reasonable opportunity to address his proposed departure from the Convention.

103    This submission may be addressed on three bases.

104    First, as I have noted, in reaching his conclusion the Minister in both form and substance, did have regard to the best interests of the children as a primary consideration. Accordingly, he did not depart from a course in a manner that Mr Wozniak could not have anticipated.

105    Secondly, as a practical matter the Minister adopted the assumed position that the mental health and wellbeing of S would be adversely affected. That was one matter that weighed in the balance, along with the other matters that were considered.

106    Thirdly, in the (accepted) absence of an obligation on the part of the Minister to make an inquiry as to the missing page, and in circumstances where at no stage has Mr Wozniak offered a suggestion as to how the missing page could have materially affected the decision, or provided a copy of the missing page, no basis is advanced whereby it might be considered that the missing page would make any difference to the decision making process.

107    Accordingly, ground 4 is dismissed.

5.5    The Minister misconstrued his discretion – ground 5

108    In ground 5, Mr Wozniak contends that the Minister misconstrued his discretion in s 501CA(4) of the Act by applying a principle that has no statutory foundation in the Act or evidentiary foundation in the materials, namely that “persons who commit serious crimes should expect to forfeit the privilege of remaining in Australia” (decision record [77]). This resulted in him asking the wrong question and the discretion miscarrying.

109    The Minister responded by submitting that [77] of the decision record must be read in the context of the whole of the Minister’s reasoning. When so done, it is apparent that the Minister did not regard himself to be so fettered.

110    In my view ground 5 cannot be sustained. First, contrary to Mr Wozniak’s submission, the statement which the Minister is said to have applied as a “principle” is not that at all. It is a statement as to what someone in the shoes of Mr Wozniak should “expect”. Whether or not that expectation is fulfilled will depend on the principles to be applied, which are stated elsewhere in the reasons. Secondly, consideration of the whole of the reasons given by the Minister in the decision record reflect that he has taken into account a number of matters including the best interests of minor children, the strength, nature and duration of his ties to Australia, the extent of impediments that he will face if removed from Australia, the protection of the Australian community and so on.

111     Accordingly, ground 5 is dismissed.

6.    DISPOSITION

112    Many of the grounds raised in the proposed amended originating application and grounds of appeal were arguable, although ultimately I have found that they were not made out. In the circumstances, it is appropriate to allow the application for leave to amend the originating application but dismiss the application. The costs of the application should follow the event and I order that the applicant pay the respondents’ costs of the application.

Associate:

Dated:    3 February 2017