FEDERAL COURT OF AUSTRALIA
Nigam v Minister for Immigration and Border Protection [2017] FCA 106
Table of Corrections | |
The catchwords have been amended |
ORDERS
Applicant | ||
AND: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent ADMINISTRATIVE APPEALS TRIBUNAL | |
DATE OF ORDER: | 15 February 2017 |
THE COURT ORDERS THAT:
1. The application is dismissed.
2. The applicant is to pay the first respondent’s costs as agreed or assessed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
PERRY J:
1 This is an application for judicial review of a decision of the second respondent, the Administrative Appeals Tribunal (the Tribunal). The Tribunal had affirmed a decision of a delegate of the first respondent, the Minister for Immigration and Border Protection (the Minister), to refuse to grant the applicant, Mr Anish Nigam, a Partner (Temporary) (Class UK) visa on character grounds pursuant to s 501(1) of the Migration Act 1958 (Cth) (the Act).
2 By a further amended originating application dated 19 November 2016 (with leave granted on 8 December 2016), the applicant raises three grounds of judicial review:
(1) Ground 1: The Tribunal failed lawfully to consider the best interests of the applicant’s daughter, as it was required to do in accordance with paragraph 11.2 of Direction No.65 - Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (Direction No. 65) made pursuant to s 499 of the Act.
(2) Ground 2: The Tribunal failed to have regard to a consideration made relevant by Direction No. 65, namely, the extent to which the applicant was likely to play a positive parental role in his daughter’s future, as required by para 11.2(4)(b) of Direction No. 65.
(3) Ground 3: The Tribunal failed to comply with the requirements of procedural fairness.
3 At the hearing, leave was granted for the applicant and the Minister to file further submissions addressing discrete issues that arose during the course of the hearing. On 13 December 2016, the applicant filed further submissions which addressed those issues and also sought leave to further amend his application to raise two further grounds of review in light of the decision of Collier J in Tesic v Minister for Immigration and Border Protection [2016] FCA 1465 (Tesic) (delivered on 7 December 2016).
4 In the circumstances, the matter was re-listed for directions on 19 December 2016. At that directions hearing, leave was granted for the applicant to re-open his case and directions were made for the applicant to file and serve a proposed further amended application limited to the issue raised in Tesic at [44]-[58], and for the exchange of submissions with respect to the further amendments in advance of a further hearing on 9 February 2017, as requested by the parties.
5 On 9 February 2017, I granted leave (unopposed) to the applicant to further amend the application to include the following additional grounds:
4. The Tribunal took an irrelevant consideration into account in the exercise of its discretion pursuant to s. 501CA(4) of the Migration Act.
Particulars
(a) That the entitlement of coming to or remaining in Australia is a “privilege”
5. The Tribunal erred in its interpretation of the law in a way that affected its exercise of its discretion pursuant to s. 501CA(4) of the Migration Act.
Particulars
(b) Error in accepting that the entitlement of coming to or remaining in Australia is a “privilege”
(grounds 4 and 5)
6 A proposed amendment to include also an application for declaratory relief with respect to the validity of paragraph 6.3 of Direction No 65 went beyond the grant of leave on 19 December 2016 and was ultimately not pressed.
7 For the reasons that follow, the application for judicial review is dismissed.
8 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)). That object is advanced under the Act by making provision for the grant of visas permitting non-citizens to enter or remain in Australia. As s 4(2) makes express, the Parliament intends that the Act be the sole source of the right of non-citizens to enter or remain in Australia.
9 A non-citizen in the migration zone is a lawful non-citizen if she or he holds a visa that is in effect, absent which the non-citizen is an unlawful non-citizen (ss 13(1) and 14(1) of the Act). Subject to the Act, the Minister may grant a non-citizen a visa under s 29(1). A non-citizen who wants a visa must apply for a visa of a particular class (s 45). The Minister must grant a visa if satisfied that the criteria are met including, importantly, that the grant of the visa is not prevented by s 501 of the Act and, if not so satisfied, must refuse to grant the visa (s 65(1)(a) and (b) of the Act).
10 Section 501(1) of the Act in turn relevantly provides that:
Decision of Minister or delegate—natural justice applies
(1) The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.
Note: Character test is defined by subsection (6).
11 Section 501(6)(a) of the Act provides that a person does not pass the character test if the person has a substantial criminal record. A “substantial criminal record” is defined in s 501(7) and includes a case where “the person has been sentenced to a term of imprisonment of 12 months or more” (s 501(7)(c)).
12 Under s 499(1) of the Act, the Minister may give directions to a person or body having functions or powers under the Act if the directions are about the performance of those functions or the exercise of those powers. The delegate and the Tribunal must comply with the direction by virtue of s 499(2A). The relevant direction applicable here was Direction No. 65. By way of background, it is helpful to outline certain central features of that Direction.
13 First, the purpose of Direction No. 65 is stated to be “to guide decision-makers” exercising powers under s 501 (paragraph 6.1(4)), with the “Principles” set out in paragraph 6.3 intended “to provide a framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen’s visa under section 501” (paragraph 6.2(3)).
14 Secondly, the principles relevant to the refusal or cancellation of a visa on character grounds set out in paragraph 6.3 are as follows:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten to harm individuals or the Australian community.
(2) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3) A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4) 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
(5) Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen's visa should be cancelled, or their visa application refused.
15 In light of the stated purpose of the principles and their nature, it can be seen that these “principles” constitute in effect a statement of government policy (e.g. “Australia has a low tolerance…”) based at least in part upon perceived community expectations (as stated in paragraph 6.3(2)) and expressed in terms of guidance rather than strict rules (e.g. what a non-citizen “should generally expect”).
16 Thirdly, paragraph 7(1) requires a decision-maker, “[i]nformed by the principles in paragraph 6.3”, to take into account “where relevant” the considerations in (relevantly) Part B of Direction No. 65 when determining whether to exercise the discretion to refuse the grant of a visa pursuant to s 501(1) of the Act, while paragraph 8 gives guidance as to the manner in which primary and other considerations are to be weighed against each other in that decision-making process. As I explained in Paerau v Minister for immigration [2014] FCAFC 28; (2014) 219 FCR 504 (Paerau):
101. Clause 8(1) of the Direction then provides that a primary or other consideration under the Direction “must” be taken into account where it is “relevant to the individual case”. Cl 8 also directs the manner in which primary considerations are to be weighed against each other and against other considerations. Thus, by virtue of cl 8(4), primary considerations should generally be given greater weight than the other considerations. Furthermore, cl 8(5) provides that one or more primary considerations may outweigh other primary considerations.
(While Paerau concerned the predecessor direction, being Ministerial Direction No. 55 – Visa refusal and cancellation under s501 (Cth) (Direction No. 55), that Direction is not relevantly different from Direction No. 65.)
17 Fourthly, it is for the Tribunal to determine what is relevant for the purposes of paragraphs 7 and 8. As, by analogy, Perram J held in SZTMD v Minister for Immigration and Border Protection [2015] FCA 150 at [20], “[t]he usual way of reading provisions such as these clauses is that they are construed as requiring the formation by the decision-maker of an opinion on the standard (here, relevance) imposed; that is to say, they are not generally construed as requiring the existence of a jurisdictional fact: see, for example, Australian Heritage Commission v Mount Isa Mines Ltd (1995) 60 FCR 456 at 466-468 (FC).”
18 In the fifth place, the primary considerations for deciding whether to refuse a non-citizen’s visa are set out in paragraph 11 of Part B, namely:
a) Protection of the Australian community from criminal or other serious conduct;
b) The best interests of minor children in Australia;
c) Expectations of the Australian Community.
19 Paragraphs 11.1 to 11.3 then elaborate upon matters to which decision-makers should have regard in their consideration of these primary considerations.
20 Finally, Paragraph 12 identifies in a non-exhaustive manner, other considerations which must be taken into account where relevant including impact on family members and international non-refoulement obligations.
3.1 The applicant’s background and application for the visa
21 The applicant is a citizen of India. He arrived in Australia in September 1996 on a student visa. That visa expired in November 2000. After that time, the applicant remained in Australia as an unlawful non-citizen until 2 August 2004.
22 On 2 August 2004, the applicant applied for a Partner (Temporary) (Class UK) visa, which was sponsored by his then de facto partner, Ms B. He was granted a bridging visa until the determination of his visa application.
23 In July 2005, Ms B gave birth to their daughter. At the time of the Tribunal hearing, the applicant’s and Ms B’s daughter was 11 years old. Ms B is her daughter’s primary carer and maintains full parental custody. The daughter has a disability manifesting itself in severe behavioural problems and requires extensive consideration and care.
3.2 The applicant’s offending and imprisonment
24 In May 2007, the applicant was convicted of aggravated armed robbery, robbery in company, aggravated break and enter, and engaging in money laundering. He pleaded guilty to all charges.
25 The offences in question were committed by the applicant in 2004 and 2005. Those offences were summarised by the Tribunal as follows:
Offences committed in May 2004
(a) On 24 May 2004, Mr Nigam and his co-offenders were involved in the robbery of the proprietor of a grocery store. The offenders broke into the home of the victim where he was physically restrained and threatened with violence. The statement of agreed facts noted that the role of Mr Nigam was to "wait outside the premises and keep a 'lookout'. The offenders stole keys to the victim's business premises and two watches. The victim was restrained while one or more of the offenders travelled to and stole cash from his business. Mr Nigam was the driver of the vehicle used to break and enter the victim's business.
(b) On 25 and 27 May 2004, Mr Nigam engaged in conduct amounting to money laundering, namely the electronic transfer of money which was the proceeds of crime and the purchase of a motor vehicle with the proceeds of crime.
Offence committed on 10 January 2005
(c) On 10 January 2005, Mr Nigam and two co-offenders were involved in an aggravated robbery. The victim was a joint owner of a fruit store. He was attacked by the offenders as he approached his motor vehicle. He was punched numerous times in the head, restrained with cable ties and then forced into the back seat of his vehicle, which was then driven away by one of the co-offenders. The victim was physically assaulted and restrained again as he tried to escape. The victim was then punched in the head numerous times until he surrendered the keys to his store. The statement of agreed facts went on the say, "the victim was told "I know where you live, I'll get your family." The statement of agreed facts also noted that during the robbery, Mr Nigam's role was to "wait nearby where he acted as a 'lookout' for police. He was in a position to assist his co-offenders if required."
26 On 15 February 2008, the applicant was sentenced to 10 years and six months imprisonment with a non-parole period of seven years and six months, comprising:
(1) 7 years and 6 months commencing on 1 April 2007 for the offence of aggravated break and enter and committing felony in company;
(2) 7 years and 6 months commencing on 1 October 2008 for the offence of aggravated robbery;
(3) 5 years concluding 30 September 2010 for the office of robbery in company; and
(4) no further sentence was imposed with respect to the money laundering offences but these were taken into account in the other charges.
27 The applicant was released on parole on 31 March 2013, and his parole ended on 31 March 2016.
3.3 The decision of the delegate
28 On 3 May 2016, a delegate of the Minister refused to grant the applicant the visa on the ground that he did not satisfy the character test in s 501 of the Act.
29 The applicant has been in immigration detention since 27 May 2016.
30 The Tribunal dismissed the application for review on 18 August 2016. I note that, subject to exceptions not presently relevant, s 500(1)(b) of the Act provides that the Tribunal may review decisions of a delegate of the Minister made pursuant to s 501.
31 In its written statement of reasons, the Tribunal noted that, as the applicant was sentenced to 10 and a half years in prison with a non-parole period of seven and a half years, he had a “substantial criminal record” as defined in s 501(7) of the Act. Consequently, the applicant did not pass the character test by virtue of s 501(6) of the Act. This was conceded by the applicant (Tribunal’s reasons at [16]).
32 The issue before the Tribunal was therefore whether the discretion in s 501(1) of the Act should be exercised to refuse to grant the applicant a visa (Tribunal’s reasons at [10] and [17]). The Tribunal dealt with each primary criterion in Direction No. 65 in turn.
33 The Tribunal was satisfied that the decision to refuse Mr Nigam’s visa is the correct and preferable decision. In reaching that view, the Tribunal had regard to the following considerations.
(1) The applicant’s offending was objectively serious. In this regard, the Tribunal rejected the applicant’s argument that his offending was less serious because he was not directly involved in the violent aspects of the crimes for which he was convicted (at [27]-[31]).
(2) During the course of the hearing, the applicant attempted to minimise his responsibility and involvement in one of the charges the applicant incurred whilst incarcerated by claiming it was a misunderstanding (at [34]), and the Tribunal was not satisfied the applicant fully accepted responsibility for his past conduct (at [43]).
(3) While there was a low risk that the applicant would reoffend, even that low risk posed a significant risk of substantial harm to the Australian community (at [48]).
(4) The Tribunal was not satisfied that it is in the best interests of the applicant’s daughter that his visa not be refused (at [50]-[80]).
(5) With respect to paragraph 11.3 of Direction No. 65, the applicant has not met the expectation that as a non-citizen he will obey the laws of this country. He spent a substantial time in prison and on parole, and committed the serious offences earlier referred to. That consideration weighs against a decision that the applicant’s visa not be refused (at [81]-[86]).
(6) The Tribunal did not consider that there were any other considerations of material relevance to the present case. Besides his daughter, the applicant has no other family members in Australia (at [87]).
34 The findings summarised at (4) and (5) above are in issue on the application for judicial review.
4.1 Grounds 1 and 2: Best interests of the applicant’s daughter
35 With respect to the conclusion reached regarding the best interests of the child, the Tribunal’s reasons were as follows.
(1) The applicant’s daughter has significant special needs resulting in among other things severe behavioural difficulties (at [52]). The Tribunal considered that “[t]he evidence is very clear that Mr Nigam’s daughter requires stability and routine. Any change to her daily activities and patterns causes her great distress.” (at [53]).
(2) The Tribunal found that it was plain, that her mother, Ms B, loves and cares for her daughter very much (at [56]). The Tribunal also accepted that caring for a child with special needs is challenging, that Ms B may need to seek help from others at times and occasionally respite care, and that she feels that she would be assisted by the applicant’s more active participation in their daughter’s upbringing. However, the Tribunal found that “[s]he has coped without [Mr Nigam] and alone for a significant period of time and I have no doubt that she can continue to do so”(Tribunal reasons at [58]).
(3) A registered psychologist gave evidence that Mr Nigam’s daughter needs as much support as possible and ideally a direct parental relationship. She opined that “…it is in the child’s best interest for Mr Nigam to remain in Australia, if a number of optimal conditions transpired (‘the Optimal Conditions’)” (emphasis in the original). Ten Optimal Conditions were identified, relating to the extent, constancy and nature of contact between Mr Nigam and his daughter (at [59]).
(4) In finding at [60] of its reasons that on balance it was not satisfied that the Optimal Conditions are likely to materialise, the Tribunal looked at a number of factors. These included the extent of contact that Mr Nigam had had with his daughter, acknowledging positive increases in that contact since his incarceration (increased phone contact and a successful home visit), and that he had recently provided increased financial support for his daughter in excess of his required child support payments. While Mr Nigam also gave evidence that he intends to move closer to his daughter and increase his custodial care and/or visitations, the Tribunal found that “[t]his, however is currently hypothetical and, as he says, dependent on finances. There is no clear plan at present for Mr Nigam to move closer to [Ms B] and his daughter, nor for them to move closer to Mr Nigam.” (at [67]). The Tribunal also took into account that:
(a) despite Mr Nigam’s evidence that he wished and intended to be involved in his daughter’s schooling and to help her with her learning difficulties, he had not taken steps to contact her teachers;
(b) “[i]t is plain that at the time that he committed the offence [in January 2005], he gave little, if any, consideration to the well-being of his family…” (at [70]);
(c) despite Mr Nigam’s best intentions, “his role as a positive parental figure is largely untested. He has spent the majority of her life either incarcerated, on parole or detained. How he would respond to the daily challenges of fatherhood is mostly unknown.” (at [73]);
(d) the applicant’s history of abusive (not physical) conduct towards the mother is also concerning (at [74]);
(e) any future criminal or other serious misconduct, whether directly or indirectly involving the mother and his daughter, could have a serious negative impact on his daughter’s stability, routine and well-being (at [75]);
(f) whilst Mr Nigam’s daughter may have some difficulties at school, there is no evidence upon which the Tribunal could be satisfied that her difficulties or behaviour will worsen without Mr Nigam’s direct parental involvement (at [76]);
(g) the Tribunal did not accept Mr Nigam’s evidence that contacting his daughter from India would be very difficult, finding that his claims are mostly unfounded and unsupported by evidence (at [77]);
(h) nor was there any evidence that could support the applicant’s contention that he may not be able to support his daughter financially due to difficulties in finding work in India (at [78]).
(5) The Tribunal concluded on this factor that:
79. On balance, I am not satisfied it is in the best interests of Mr Nigam’s daughter that his visa not be refused.
80. This consideration weighs against a decision that Mr Nigam’s visa not be refused.
36 The manner in which the Tribunal expressed the finding at [79] of its reasons is confusing by reason of the Tribunal’s use of double negatives. However, I do not accept the applicant’s submission that the finding is “so obscure that it is impossible to know what question the Tribunal asked of itself.” Rather, fairly read, the effect of the finding is simply that, on balance, the Tribunal was not satisfied that it is in the best interests of Mr Nigam’s daughter that he be granted a visa.
37 Further, while not a ground of review, the applicant also submitted that the conclusion in the Tribunal’s reasons at [80] did not logically follow from the conclusion at [79]. I agree. The finding at [79] logically could have founded a conclusion only that the best interests of Mr Nigam’s daughter was a neutral consideration neither weighing in favour of or against a decision that Mr Nigam should be granted the visa. That said, however, I agree with the Minister’s submission that that error could have made no difference to the Tribunal’s decision given that all of the other factors taken into account by the Tribunal were found to weigh against the applicant: see above at [33].
4.1.3 Ground 1: Was the Tribunal required to make a “determination” as to the best interests of the applicant’s daughter by paragraph 11.2 of Direction No. 65?
38 Ground 1 takes issue with the Tribunal’s finding at [51] that the Tribunal was “not satisfied it is in the best interests of Mr Nigam’s daughter that his visa not be refused”. The applicant submits that paragraph 11.2 of Direction No. 65 imposes an obligation upon a decision-maker to make a finding of fact – a “determination” - and that a finding as in the present case of a “lack of satisfaction” is not sufficient. Paragraph 11.2 of Direction No. 65 provides that:
11.2 Best interests of minor children in Australia affected by the decision
(1) Decision-makers must make a determination about whether refusal is, or is not, in the best interests of the child. (emphasis added)
39 The applicant submits that properly construed, paragraph 11.2 “requires a ‘determination’ – that is an establishment of a fact – about whether refusal is or is not in the best interests of the child.” In this regard, the applicant contends that paragraph 11.2 is different from most of the other factors mentioned in Part B of Direction No. 65 in respect of which the obligation is to require only that they be considered or taken into account, or that regard must be had to them. On this basis the applicant submitted that:
… the Tribunal was required to make the determination stated in para 11.2 and then weigh this, along with the other primary and ‘lesser’ considerations about which it was to have regard, consider or take into account, in deciding whether the discretion should be exercised to refuse the applicant’s visa application. So construed the requirement of making a “determination” under para 11.2(1) is not to be read down, and… the matters listed in para 11(4), which were required to have been considered where relevant, inform the determination required pursuant to para 11.2(1). Thus, para 11.2(1) requires, as a matter of law, the determination of the matter there mentioned. In addition, the matter stated in para 11.4(b) was required, as a matter of law to have been considered. The failure to meet either of those requirements was ultimately a breach of s. 499(2A).
40 On the other hand, the Minister submitted that paragraph 11.2(1) of Direction No. 65 does not in all cases require a decision-maker to whom the Direction applies to make a positive finding that the best interests of the children are either that the visa be refused or be granted. I agree. As the Minister submitted, it is for the decision-maker to determine, conscientiously, the weight to be given to the evidence and whether it is satisfied on the basis of the evidence that a given finding can or should be made. That construction is consistent with the expressed purpose of the Direction and its intention to provide a “framework” of principles within which decision-makers should approach their task.
41 This construction is consistent with that adopted by the majority in Paerau, contrary to the applicant’s submission. In Paerau, the Tribunal found that it was unable to make a determination as to whether or not visa cancellation was in the best interests of Mr Paerau’s children, due to a paucity of evidence on the issue. As earlier mentioned, that decision concerned Direction No. 55, which was the predecessor to Direction No. 65, and was not for present purposes materially different. In particular, in common with Direction No 65, Direction No. 55 required that the Tribunal make a “determination” about whether cancellation is or is not in the best interests of minor children and that, “where relevant to the individual case”, the Tribunal must take that consideration into account as a primary consideration in the manner set out in the Direction.
42 Thus, Buchanan J concluded that:
27. In my respectful view, there could be no objection in any case to the AAT [Tribunal] concluding that the best interests of a child did not weigh either for or against the cancellation of a visa, so long as the available material was assessed conscientiously. That is not the same as not stating a conclusion about the issue at all. Similarly, in a case where the evidence did not permit a proper conclusion about the issue, there could be no objection to the AAT saying so, as it did in the present case.
43 I agree with his Honour’s analysis which I consider is supported by a proper construction of the Direction. Thus in Paerau I held that the obligation to make a determination about where the best interests of the child lie must be read subject to the obligation to take primary and other considerations into account where “relevant to the individual case”. In this regard, I held that:
104 In my view, the requirement that the consideration be “relevant” in cl 8(1) of Direction No. 55 carries with it the implication that there must be some evidence about the consideration that the decision-maker considers is of some probative value. Absent such evidence or a legislative presumption that applies in the absence of contrary evidence, the consideration could not meaningfully be taken into account. This construction accords with the ordinary meaning of “relevant” which includes “legally sufficient, adequate, or pertinent” (Oxford English Dictionary) or “bearing upon or connected with the matter in hand; to the purpose; pertinent” (Macquarie Dictionary).
105 Provided, therefore, that such judgments as to relevance are made by the decision-maker within lawful boundaries, the question as to whether particular evidence can be given any, and, if so what, weight falls within the exclusive province of the administrative decision-maker. Weight may be affected by such matters as provenance (a matter to which cl 8(2) directs attention), credibility, completeness, context or lack thereof, and the capacity of the interested party to respond to the material particularly if it is adverse.
44 In other words, the question of where the best interests of the child in a case such as the present is plainly raised as an issue. Nonetheless, that consideration cannot play an active part in the balancing exercise to be undertaken in accordance with paragraph 8 of the Direction between the different considerations where the decision-maker, as here, is not satisfied on the evidence that the best interests of the child favour the grant of visa but equally is not satisfied that they do not. That construction accords with a common sense approach to the decision-making process required overall by Direction No. 65 and its predecessor, Direction No. 55. As Buchanan J said in Paerau (in a passage with which I agreed at [107]):
18 It is basic, of course, that any determination by the AAT [Tribunal] about a matter as fundamental and important as the best interests of a child should be the result of a reasoned assessment of material of sufficient probative value that the determination be a sober and considered one, and not capricious, speculative or merely a guess.
45 The decision in Paerau is consistent with the earlier decision of the Full Court in Jones v Minister for Immigration and Ethnic Affairs (1995) 63 FCR 32, on which Buchanan J in particular in Paerau relied. In Jones, there had been evidence before the decision-maker but the Tribunal found that it was unable on the evidence before it to make a material finding of fact either way for reasons which it clearly explained. Importantly, however, as Buchanan J held in Paerau at [20], each of the members of the Court in Jones rejected the submission that an obligation to find facts left no room for a neutral outcome or, as Carr J explained at 46, a decision in which “[t]he decision-making pendulum remained in equilibrium”, see also Jones at 38 (Jenkinson J), 50 (Nicholson J). To hold otherwise, as Nicholson J held at 50, “would be in effect to require the Tribunal to have made findings when it had expressly found an absence of evidence to support them.”
46 It follows, notwithstanding the careful submissions by counsel for the applicant to the contrary, that it was open to the Tribunal to find that it was not satisfied that it was in the best interests of Mr Nigam’s daughter that his visa be granted. Paragraph11.2 of Direction No. 65 does not require that the Tribunal make a determination in the sense of making a positive finding of fact one way or the other if, as here, the Tribunal finds that it cannot on the state of the evidence.
47 Furthermore, the analysis of the Tribunal’s reasons at [35] above exposes that the Tribunal reached that view by a conscientious evaluation of the evidence and found on rational grounds that the evidence could not support a finding either way. In particular, it is clear that, notwithstanding the applicant’s evidence as to his intentions, the Tribunal was unable to reach a view on whether the applicant could provide the stable relationship which his daughter required when he had not sought to put those intentions into action, his role as a positive parental figure was largely untested, and there were aspects of his history which raised concerns in the Tribunal’s view about his ability to do so.
4.1.4 Ground 2: Did the Tribunal fail to have regard to the extent to which the applicant was likely to play a positive parental role in his daughter’s future?
48 By ground 2 the applicant contends that the Tribunal was required to make a prediction as to the part that Mr Nigam would play in his daughter’s life in the future as required by paragraph 11.2(4)(b) of Direction No. 65 but failed to do so. It will be apparent that, at least to some degree, there is an overlap between grounds 1 and 2.
49 Paragraph 11.2(4)(b) provides that::
In considering the best interests of the child, the following factors must be considered where relevant:
…
b) The extent to which the non-citizen is likely to play a positive parental role in the future (taking into account the length of time until the child turns 18), and including any Court orders relating to parental access and care arrangements.
50 Other factors which must be considered under paragraph 11.2(4) where relevant include the nature and duration of the relationship between the child and the non-citizen, the impact of the non-citizen’s past and likely future conduct on the child, whether that conduct has or will have a negative impact on the child, the likely effect of separation on the child, whether other persons already fulfil a parental role in relation to the child, and any known views of the child.
51 The applicant contends that, despite there being “considerable information of sufficient probative value” on the issue identified in paragraph 11.2(4)(b), the Tribunal overlooked or failed to consider the “extent” to which the applicant is likely to play a positive parental role. In particular, it is said that the Tribunal failed to assess the position if the “Optimal Conditions” identified by Dr Alsop were only partly met by the applicant or did not transpire. It will be recalled that Dr Alsop gave evidence that it is in the daughter’s best interests for the applicant to remain in Australia but subject to the qualification “if a number of optimal conditions transpired”.
52 In this regard, the Tribunal said first at [60]:
I must assess the situation as it exists, rather than rely on what Mr Nigam may or may not do in the future. On balance of the evidence and my reasoning below, I am not satisfied that the Optimal Conditions are likely to materialise.
53 I accept that the first sentence of [60] read in isolation from the remainder of the Tribunal’s reasons is confusing and tends to suggest that the Tribunal misunderstood its task. However, it is apparent that the Tribunal in fact gave consideration to “what Mr Nigam may or may not do in the future” as required by paragraph 11.2(4)(b), despite what is said in the first sentence at [60]. Read fairly in the context of the reasons as a whole, I understand the first sentence of [60] to mean, in effect, that the Tribunal cannot simply rely upon what the applicant says he may or may not do, despite being expressed somewhat inaptly. Thus, for example, at [73], the Tribunal finds that “notwithstanding Mr Nigam’s intentions”, his role as a positive parental figure is largely untested, i.e., it is not persuaded that those intentions will “materialise”.
54 I do not understand the applicant to take issue with this understanding of [60] of the Tribunal’s reasons. In this regard, the applicant’s counsel accepted that “[s]o what the tribunal does is … she plainly does look into the future.” Rather, he submitted that “[t]he question is whether she does so in a way which is required by the direction.” In effect, in the applicant’s submission (as mentioned), the Tribunal only looked at the question of whether the applicant could meet the optimal conditions identified by Dr Alsop, whereas it ought to have considered whether, even if those conditions were not met or were met in part, the applicant may still have a positive and meaningful involvement in his daughter’s life if he were to remain in Australia. In this regard, the applicant relied upon a passage in Dr Alsop’s evidence as “evidence by which the tribunal could have made, or could have drawn conclusions as to the future, the likely – the extent to which he was likely to play a positive parental role in the future.” Specifically, he relied upon Dr Alsop’s opinion that the applicant was “on that track to making those conditions present, when he is present in her life.”
55 Plainly the failure by the Tribunal to conclude that the applicant was likely to play a positive parental role in his daughter’s life given Dr Alsop’s evidence does not demonstrate jurisdictional error. Further, it is evident from the Tribunal’s reasons that it did consider the question of the extent to which the applicant is likely to play a positive role in his daughter’s life and did so in some detail by reference to evidence on a range of factors: see above at [35]. These included the qualification to Dr Alsop’s opinion “when he is present in her life”, with the Tribunal specifically considering the evidence as to the applicant’s likely future contact with his daughter. These matters are sufficient to demonstrate that the factor was considered as required by paragraph 11.2(4)(b) of Direction No. 65 and s 499 of the Act. It was not incumbent on the Tribunal to speculate on scenarios contrary to the expert evidence on which the applicant himself relied. Finally, the fact that the Tribunal was unable ultimately to make a finding one way or the other on the state of the evidence does not reveal error for the reasons I have already held. Ultimately, therefore, with respect the submission seeks to take issue with the merits of the Tribunal’s findings of fact. Accordingly, ground 2 of the application is not established.
4.2 Ground 3: Whether the Tribunal failed to comply with the requirements of procedural fairness
56 The applicant also contends that the Tribunal failed to act in accordance with procedural fairness in that the Tribunal’s finding that it may not be in the best interests of the applicant’s daughter that his visa be granted was not obviously open on the known material. The applicant relied in this regard upon the Full Court’s articulation of relevant principles in Commissioner of the Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 (Alphaone) at 591-592:
Where the exercise of the statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information on submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to about or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of a statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to explain his or her mental processes or provisional views to comment before making the decision in question.
(Emphasis added)
57 Specifically, the applicant submitted that:
Neither the applicants nor the Minister’s submissions before the Tribunal suggested that it was not in the best interests of Mr Nigam’s daughter that she remain in Australia. Nor did the Tribunal member suggest that it may not be in [the applicant’s daughter’s] best interests that his visa be refused. Indeed the evidence was that he had taken an interest in and developed a bond with [his daughter].
58 In this regard, the applicant submitted that Dr Alsop’s opinion that it would be in the daughter’s best interests if her father were to remain if optimal conditions transpired was not material which would clearly support a conclusion that it was not in her best interests that her father’s visa be refused.
59 However, as the Minister submits, the Tribunal’s lack of satisfaction that it would be in the best interests of the applicant’s daughter for him to remain in Australia was “obviously open on the known material”. Indeed, it was in order to address this issue that the applicant relied upon expert evidence from Dr Alsop, no doubt recognising the difficulties which he may face in satisfying the Tribunal that it was in his daughter’s best interests that he remain given the limited role he had played to that time in her life. Furthermore Dr Alsop’s evidence in support of the applicant’s case was subject to conditions with which the applicant had plainly not yet complied.
60 That being so, I agree with the Minister that the Tribunal’s finding that it was not satisfied that it was in the child’s best interests that the applicant remain in Australia did not attract the principles relied upon by the applicant in Alphaone. Rather, the complaint reduces to an alleged failure by the Tribunal to disclose its mental processes before it reached a final decision. It is well established that that does not suffice to establish a breach of procedural fairness. Thus, the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 53; (2006) 228 CLR 152 cautioned that:
48. …as Lord Diplock said in F Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry [[1975] AC 295 at 369]:
“the rules of natural justice do not require the decision maker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision. If this were a rule of natural justice only the most talkative of judges would satisfy it and trial by jury would have to be abolished.”
Procedural fairness does not require the Tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given. On the contrary, to adopt such a course would be likely to run a serious risk of conveying an impression of prejudgment.
61 It follows that ground 3 must be dismissed.
4.3 Grounds 4 and 5: Regard to the “privilege” of remaining in Australia
62 By grounds 4 and 5 of the further amended application, the applicant alleges that the Tribunal’s decision is invalid on the grounds that it took into account an irrelevant consideration in the exercise of its discretion under s 501CA(4), being that “the entitlement of coming to or remaining in Australia is a ‘privilege’” and erred in its construction of the law in accepting the same. The applicant’s submissions on this ground relied upon the decision in Tesic which the applicant said was not distinguishable.
63 To place the decision of Tesic in context, it is necessary first to consider the Full Court’s decisions in Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1 (Stretton) and AZAFQ v Minister for Immigration and Border Protection [2016] FCAFC 105; (2016) 237 FCR 1 (AZAFQ).
64 In Stretton the Full Court held that the primary judge had fallen into error in holding that the Minister’s decision to cancel the respondent’s visa on character grounds was legally unreasonable. Relevantly for present purposes, Allsop CJ expressed concerns in obiter concerning the use of phrases by the Minister such as “the privilege of being able to remain in Australia”. Specifically his Honour said that:
26 Whilst not the focus of any argument, it is to be doubted that the judicial review of decisions such as this is affected or impeded by the use by the Minister in his reasons of phrases such as “the privilege of being able to remain in Australia”. At one level such an expression can be seen as an unremarkable synonymous phrase for the statutory rights held under the Migration Act. To the extent, however, that the use of that language seeks to surround, or has the apparent effect of surrounding, the decision with an aura of a non-justiciable assessment of community values, I would not necessarily accept such. It is unnecessary for the resolution of this appeal to explore the full fabric of the scope and purposes of s 501 beyond the protection of the Australian community. In particular, there is no call to consider the relevance of what might be called broader political or policy considerations (whether expressed as such, or expressed as a judgment as to the expectations of the Australian community) in the exercise of the power.
65 Concerns were also expressed by Griffith J who observed at [70(d)], in the context of considering the role of written reasons in determining whether there is an “evident and intelligible” justification for a decision, that:
One of the important purposes served by the obligation to provide a statement of reasons is to show whether or not the power conferred by s 501(2) has been exercised for legitimate purposes and not for an impermissible purpose, such as to punish the visa-holder (see Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83; (2015) 231 FCR 513 at [37] per Flick, Griffiths and Perry JJ). In particular, without doubting the relevance to the exercise of that power of protecting the Australian community, it is important that the value of the statement of reasons is not diminished by resort to superficial aphorisms or empty rhetoric, which is illustrated by phrases such as “expectations of the Australian community” and the “privilege” of being a visa-holder. The former concept has the potential to mask a subjective value judgment and to distort the objectivity of the decision-making process. The latter expression is simply misleading as a legal concept. Under Australian law, having the status of a visa-holder is not a privilege. Visa-holders hold statutory and non-statutory rights which are inconsistent with the notion of their status being described simply as a “privilege”. For example, many visa-holders have statutory rights of review and all visa-holders have rights relating to judicial review of adverse migration decisions. The statutory rights of a visa-holder are, of course, subject to the lawful exercise of executive powers such as those under s 501. But that fact does not justify the position of a visa-holder under Australian law being described as merely one of “privilege” in a legal sense.
66 AZAFQ was also a case concerning the validity of a visa cancellation decision by the Minister personally on character grounds under s 501(2) of the Act. In that case, the appellant’s challenge to the decision on the grounds of legal unreasonableness relied among other things upon a reference in the Minister’s reasons to his ability to remain in Australia as being a “privilege” which, the Court noted, also appeared several times in (then) Direction No. 55 given under section 499 of the Migration Act 1958] albeit that the Direction did not bind the Minister (AZAFQ at [46]). The applicant contended that this demonstrated that the Minister had failed to take into account Australia’s protection obligations owed to him. The Court rejected that submission on the basis of its construction of the Minister’s reasons, finding that:
47 If the reference to “privilege” in the Minister’s statement of reasons is read in isolation from the balance of those reasons, there might appear to be some force in the appellant’s complaint. This Court has previously commented on the danger of describing a visa holder’s entitlement to remain in Australia as a “privilege” (see Stretton at [26] per Allsop CJ and at [70(d)] per Griffiths J). The inappropriateness of describing such entitlement as a “privilege” is further underlined in the following passage from Gummow J’s judgment in Fardon v Attorney-General(Qld) [2004] HCA 46; 223 CLR 575 at 611:
… in other respects aliens are not outlaws; many will have a statutory right or title to remain in Australia for a determinate or indeterminate period and at least for that period they have the protection afforded by the Constitution and the laws of Australia.
48 In our view, however, it would be wrong to conclude in the particular circumstances here that the Minister’s use of the word “privilege” discloses jurisdictional error. … it is clear that the Minister did turn his mind to, and take into account, Australia’s protection obligations to the appellant. … the Minister made express reference to, and relied upon, the two Departmental assessments which concluded that there was no legal impediment to returning the appellant to South Sudan and, specifically, to Juba.
67 Relevantly, a number of strands emerge from the passages quoted above from Stretton and AZAFQ regarding the use of the phrase “the privilege of being able to remain in Australia”. First, the expression would seem to be misleading as a legal concept because visa holders have statutory and non-statutory rights inconsistent with a notion that their status is merely a “privilege”. Secondly, those rights include rights of judicial review. Thirdly, those rights may include rights to remain for a determinate or indeterminate time. By way of example, in AZAFQ, the Court accepted that there may have been some force in the appellant’s complaint that the Minister had in fact failed to take into account the protection obligations owed to the appellant if the Minister had used the term “privilege” to describe the appellant’s legal status (AZAFQ at [28] and [47]).
68 These passages in Stretton and AZAFQ were considered by Collier J in Tesic. The issue in that case was whether the Minister fell into jurisdictional error in deciding under s 501CA not to revoke automatic cancellation under s 501(3A) of the applicant’s visa on character grounds. Specifically, it was said that the Minister erred in the exercise of discretion by taking into account the “principle that persons who commit serious crimes should expect to forfeit the privilege of remaining in Australia” in circumstances when there was no such “principle” (Tesic at [23]; see also at [44]). That submission was upheld. Specifically, her Honour held that:
53 In his statement of reasons before me, the Minister referred to this “principle” of a “privilege” a number of times. Critically, I note his statement at paragraph 31 where he said, in relation to the issue of protecting the Australian community:
I also took into consideration that remaining in Australia is a privilege that Australia confers on non-citizens in the expectation they are law abiding.
54 This statement was complemented by paragraph 55 in the Conclusion to the statement of reasons where the Minister said:
I am mindful of the principle that persons who commit serious crimes should expect to forfeit the privilege of remaining in Australia.
55 I do not accept that the statements of the Minister in respect of “privilege” in this case could properly be confined to rhetoric expounding the relevant considerations concerning Mr Tesic’s criminal history and the importance of protecting the Australian community.
56 The fact that the Minister “took into consideration” that remaining in Australia is a privilege that Australia confers on non-citizens indicates that the decision-making process was distorted. The “principle” coloured the Minister’s reasoning process. The Minister approached the decision from that perspective. As was explained by the Full Courts in both Stretton [2016] FCAFC 11 and AZAFQ [2016] FCAFC 105, that perspective was not correct. The fact that the Minister subsequently repeated the statement concerning privilege in paragraph 55, elevating it to a “principle”, reinforces the point that the Minister attributed importance to this irrelevant consideration in reaching his decision.
57 The statement of reasons in this case may be contrasted with that of the Minister in Stretton [2016] FCAFC 11, where the Minister referred to the “privilege of being able to remain in Australia” in the conclusion, and in the course of elucidating the expectations of the Australian community. Similarly, in AZAFQ [2016] FCAFC 105 the Minister summarised his reasons for cancelling the appellant’s visa, including the generalised statement that non-citizens who committed serious, violent offences should “generally expect to forfeit the privilege of remaining in Australia”. Unlike in these cases, the Minister in the statement of reasons in Mr Tesic’s case referred to the “privilege” as a principle of law referable to the exercise of the power, rather than a general policy statement.
(emphasis in the original)
69 The last point at [57] is the critical one in the reasoning in Tesic. In effect, as I understand her Honour’s reasons, the Minister’s reasons revealed that he had approached the exercise of his discretion taking into consideration the erroneous proposition that remaining in Australia is a “privilege”, thereby failing to appreciate that as a visa holder, Mr Tesic had a statutory right to remain and rights of judicial review.
70 By contrast, in Tupkovic v Minister for Immigration and Border Protection [2017] FCA 73 (Tupkovic), Griffiths J held that, in stating that he was mindful of the “principle” that persons who commit serious crimes should expect to forfeit the privilege of remaining in Australia, the Minister in that case was doing no more than taking into account a statement of policy. His Honour therefore distinguished the decision in Tesic and held that no jurisdictional error was established. In so holding, his Honour emphasised that the fact that an essentially identical sentence appeared in the Minister’s reasons in both cases was not determinative (at [36]).
4.3.3 Did the Tribunal fall into error in the exercise of discretion?
71 It will be recalled that paragraph 7 of Direction No. 65 requires that the exercise of discretion under s 501 of the Act be informed by the principle relevantly in paragraph 6.3(3) under the heading “Principles” that a non-citizen who has committed a serious crime “..should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.”
72 The applicant contends that the Tribunal fell into error in applying paragraph 7 of Direction 65 by requiring that the discretion conferred by s 501 be informed by the “Principle” in paragraph 6.3(3) of the Direction that being able to come to or remain in Australia is a “privilege” in that:
(1) the Tribunal wrongly considered that the “principle” in paragraph 6.3 of Direction 65 was one of law referable to the exercise of the discretion permitted by s 501(1) and applied the principle on the basis of that misunderstanding; and
(2) the purported “principle” that the entitlement of a noncitizen to enter or remain in Australia was a “privilege” was also an irrelevant consideration.
73 In my view, it would be wrong to conclude that the Tribunal considered that the “principle” in the Direction was one of law. In this regard, it is important to emphasise that the reasons of the Tribunal ought to be read as a whole and not over-zealously with an eye keenly attuned to the detection of error: Minister for Immigration and Ethnic Affairs v Wu Shan Liange [1996] HCA 6 at [30]; (1996) 185 CLR 259 271-272; see also in this context Tupkovic at [37] (Griffiths J).
74 First, I accept the Minister’s submissions as to the proper characterisation of paragraph 6.3 of Direction 65. The clause uses (as the Minister accepted) “inapt rhetoric” in referring to the “privilege” of staying in Australia. However, read fairly, it does no more than state the government’s general view or policy that non-citizens who commit serious crimes should “generally expect” that they will not be permitted to remain in or come to Australia. The clause does not suggest that a decision-maker should take into account the (erroneous) proposition that a non-citizen has no rights to stay in Australia and no right to the making of a lawful and justiciable decision on whether her or his visa should be cancelled or a visa should be granted under the Act. This construction of paragraph 6.3 is reinforced by its context within the Direction as a whole. In this regard, as the Minister pointed out, this is consistent with the purpose of the Direction and the intention that it provide a “framework” within which decision-makers should approach their task: see above at [13]-[15] and [40].
75 Secondly, the applicant seeks to rely upon the Tribunal’s reasons at [18] as revealing error in the Tribunal’s understanding of its statutory task by referring to the forfeiting of the “privilege” of being granted a visa. At [18], the Tribunal stated that:
Paragraph 7 of [Direction No. 65] sets out how the discretion is to be exercised. “Informed by” the principles in paragraph 6.3, I must “take into account” the considerations in Part B where relevant, in order to determine whether Mr Nigam will forfeit the privilege of being granted a visa. In so doing I am required to determine whether the risk of future harm by Mr Nigam is unacceptable.
76 However, in that passage, the Tribunal did no more, in my view, than state that it was required to take into account the “Principles” in paragraph 6.3. That is to state no more than the effect of paragraph 7 of Direction No. 65 which binds the Tribunal by virtue of s 499 of the Act, as the Tribunal recognised at [15]. The Tribunal then correctly identified risk of harm as the operative consideration in the last sentence of [18]. There is nothing to suggest that at this point in its reasons, the Tribunal fell into the error made by the Minister in Tesic by elevating the reference to the “privilege” of being granted a visa to a legal principle that denied any rights to the applicant in considering that issue.
77 Thirdly, the applicant placed reliance in support of grounds 4 and 5 upon the statement in the Tribunal’s reasons at [84] under the heading “Primary Consideration (c) – Expectations of the Australian Community”. To place that statement in context, the Tribunal at [81] first quoted paragraph 11.3 of Direction No. 65, which reads:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to refuse the visa application of such a person. Visa refusal may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted a visa. Decision-makers should have due regard to the Government's views in this respect.
78 The Tribunal then said that:
82. I have no evidence to enable me to determine the expectations of the Australian community in this matter, other than the guidance provided by the direction itself.
83. Clearly Mr Nigam has not met the expectation that as a non-citizen he will obey the laws of this country. Of the nearly 20 years he spent in Australia, seven and a half of those years have been spent in prison and three years on parole. In the time he lived in the community he has committed the serious offences to which I have referred, involving physical violence and robbery for purely monetary gain. I also note that on 14 December 2000, Mr Nigam was convicted of a number of driving offences, including driving while unlicensed and driving an uninsured vehicle. While I accept that driving offences are not always considered serious, they do form part of his record.
84. In making the Direction, the Minister has made it clear 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.” The Principles to be applied, as set out in paragraph 6.3, state that the right of the noncitizen to be able to come to or remain in Australia is a privilege conferred in the expectation that he or she are and will be law-abiding.
85. It is also the expectation of the Australian community that a visa should be refused if the holder commits serious crimes in Australia or elsewhere: see Principles subparagraph 6.3(2).
86. This consideration weighs against a decision that Mr Nigam’s visa not be refused.
79 As the Minister submits, it is apparent from [82] of the Tribunal’s reasons that it did not apply an erroneous legal principle to the effect that remaining in Australia was a “privilege” unattended by any rights. To the contrary, at [82], the Tribunal observed that, there being no relevant evidence on the expectations of the Australian community, it had to rely upon the “guidance” provided by Direction 65. Consistently with this, the use of the word “Principles” at [84] does not suggest that the Minister was wrongly regarding paragraph 6.3 as a legal principle. Rather, the Tribunal has done no more than quote the language used in the Direction itself. Nor do I accept that the fact that the Tribunal has said that the Principles “to be applied” are set out in paragraph 6.3 indicates that the Tribunal applied an incorrect view of the law. In using that phrase the Tribunal meant no more than that it is bound by directions under s 499(2A) of the Act, as it had earlier recognised in its reasons at [15]. In this regard, it had also expressly recognised that those principles provide the framework only within which the task of exercising the discretion to cancel a visa should be approached (at [20]).
80 It follows that I agree with the Minister’s submission that the Tribunal’s reasons reveal that it understood the references in Direction 65 to the “privilege” of staying in Australia as being a general government policy that non-citizens should generally expect that they will not be permitted to remain if they commit serious crimes. As such, this case is distinguishable from the decision in Tesic and grounds 4 and 5 must be dismissed.
81 The applicant submitted that, in the event that the Minister was successful, it was relevant to the award of costs that the applicant was in receipt of a grant of legal aid from the Legal Aid Commission of New South Wales. Relevantly, s 42 of the Legal Aid Commission Act 1979 (NSW) (LAC Act) provides with respect to the making of a costs order against a legally assisted person that:
A court or tribunal which may order the payment of costs in proceedings before it shall, where a legally assisted person is a party to any such proceedings, make an order as to costs in respect of the legally assisted person as if he or she were not a legally assisted person.
82 Section 47 in turn makes provision for the payment of such costs orders by the Commission:
(1) Where a court or tribunal makes an order as to costs against a legally assisted person:
(a) except as provided by subsections (2), (3), (3A), (4) and (4A), the Commission shall pay the whole of those costs, and
(b) except as provided by subsections (3), (3A), (4) and (4A), the legally assisted person shall not be liable for the payment of the whole or any part of those costs.
(2) The Commission shall not pay an amount in excess of $5,000 (or such other amount as the Commission may from time to time determine):
(a) except as provided by paragraph (b), in respect of any one proceeding, or
(b) in respect of each party in any one proceeding, being a party who has, in the opinion of the Commission, a separate interest in the proceeding.
83 Section 47(8) further provides that:
Any amount paid by the Commission under this section shall be deemed to have been paid by the legally assisted person on whose behalf it is paid.
84 There is no suggestion that the exceptions referred to in s 47(1) or (2) apply. Putting the exceptions therefore aside, the effect of these provisions is, as the Minister submits, that where a Court to which the Act applies makes an order for costs against a legally assisted person, the Commission is liable to pay the whole of those costs subject to a cap of $5000 and the legally assisted person is not liable to pay any part of the costs: see ss 42 and 47 of the LAC Act.
85 The Minister submitted that these provisions were not relevant to the issue of costs in the present case. The Minister emphasised two matters: first, s 47 of the LAC Act is not a bar to a court making an order as to costs; and secondly, s 47 operates to limit the amount recovered by the party in favour of whom the costs order was made. While both of those propositions are correct, the applicant’s position was no doubt based upon the view that there is no practical utility in the Court making an order for costs in excess of $5000 where s 47(1) and (2) applies because any costs over and above the sum of $5000 will not recoverable.
86 The Minister also submitted that:
However, this court is bound by the decision in Woodlands v Permanent Trustee Co Ltd (1996) 68 FCR 213. In that case, Wilcox, Burchett and Olney JJ held that the limitation on recoverability of costs in section 47 of the LAC Act against a legally assisted person was inconsistent with the Court’s power under section 43(1) of the Federal Court of Australia Act 1976 (Cth) to order costs against a party and thus to that extend [sic] invalid due to section 109 of the Constitution (at 243). For the sake of completeness, it should be noted that insofar as the Full Court in Woodlands made further obiter dicta observations about section 79 of the Judiciary Act 1903 (Cth), those observations haved been held by a later Full Court to be wrong: Wilson v Alexander (2003) 135 FCR 273 [2003] FCAFC 272 at [19]-[20].
87 No submissions were made by the applicant in response to the Minister’s position, and he indicated that he did not wish to be heard further on the subject of legal aid in submissions filed in reply to the Minister’s additional submissions.
88 With respect to the Minister, I do not consider that his submissions accurately encapsulated the state of the authorities with respect to the applicability of these provisions of the LAC Act and they fail to grapple with the potential application of those provisions as surrogate federal laws under s 79 of the Judiciary Act 1903 (Cth).
89 In Woodlands v Permanent Trustee Co Ltd (1996) 68 FCR 213 (Woodlands), the Court (Wilcox, Burchett and Olney JJ) held first, that the reference in s 47 to a “court or tribunal in and for New South Wales” was not in terms apt to describe the Federal Court (at 240). On considering the legislative history of the provision, the Court considered that the Act was not initially intended to facilitate the granting of legal aid in relation to matters arising under federal law, but held that amendments made in 1987 were intended to have that effect. However, given that State courts also exercise federal jurisdiction, the Court considered that it did not necessarily follow that s 47 extended to federal courts (at 242-243). In those circumstances, the Court proceeded on the assumption that after 1987, the word “court” in the LAC Act included a Commonwealth court without deciding the issue (at 243). On that assumption, the Court found that it would be competent for the New South Wales Parliament to direct a statutory body to bear the burden of a costs order made by a Commonwealth court against a legally aided person and that would not be inconsistent with a Commonwealth law (at 243). However, the Court found that to the extent that that s 47(1)(b) purported to absolve a person from a liability imposed on that person by a costs order made by the Federal Court under s 43(1) of the Federal Court of Australia Act 1976 (Cth), the section was inconsistent with s 43(1) and invalid under s 109 of the Constitution. To this extent, it may be accepted that the decision in Woodlands is binding.
90 However, the applicants in Woodlands put an alternative argument that s 79 of the Judiciary Act operated so as to apply s 47 of the LAC Act to the Federal Court as a surrogate federal law. The Full Court rejected this argument. It held that s 79 was concerned only with laws relating to procedure, evidence and the competency of witnesses, and therefore that s 79 could not pick up and apply s 47(1)(b) because that provision was substantive (at 245). It follows that the argument based upon s 79 of the Judiciary Act was not disposed of by the finding of a s 109 inconsistency which, of its nature, addressed only the potential application of s 47 as a State law. Rather the Full Court’s reasons for rejecting the argument based upon s 79 of the Judiciary Act formed part of the ratio of the decision, contrary to the Minister’s submissions.
91 The correctness of this aspect of the decision in Woodlands was considered subsequently in Wilson v Alexander [2003] FCAFC 272; (2003) 135 FCR 273 (Wilson). Wilson concerned s 57 of the LAC Act which deals with the circumstances in which an adjournment should be granted where an appeal is pending against a decision by the Legal Aid Review Committee against a decision to refuse legal aid. In Wilson, the Full Court (Ryan, Heerey and Allsop JJ) held that s 57 of the LAC Act applied to proceedings in the Federal Court as a federal law by operation of s 79 of the Judiciary Act. In so holding, the Court held that Woodlands had been wrongly decided insofar as it held that s 79 picks up only procedural laws. Specifically at 279, the Court held that:
18. … We note that part of the Full Court decision in Woodlands v Permanent Trustee Co Ltd (1996) 68 FCR 213 at 245 (in dealing with another provision of the Legal Aid Commission Act), said that s 79 could not render applicable substantive as opposed to procedural provisions.
19. It is unnecessary and inappropriate to undertake a general discourse on s 79 and its operation; but, in the light of the comments of the Full Court in Woodlands v Permanent Trustee Co Ltd at 245 it is necessary to say a number of things. Section 57 applies in the Federal Court by force of s 79 of the Judiciary Act as long as it is “applicable” and as long as the Constitution of the Commonwealth or the laws of the Commonwealth do not otherwise provide. There is no reason to conclude that s 57 is not applicable. It deals with an aspect of procedure and the rights of a party to an adjournment. There is no law of the Commonwealth or provision of the Constitution which otherwise provides. So picked up, it applies as a federal law or a “surrogate” federal law: Pedersen v Young (1964) 110 CLR 162 at 165; Australian Securities and Investments Commission v Edensor Nominees Pty Ltd (2001) 204 CLR 559; and Solomons v District Court (NSW) (2002) 211 CLR 119 at [21]. The Court in Woodlands appeared to favour the view that s 79 picks up only “procedural laws”. That is not correct: Commissioner of Stamp Duties (NSW) v Owens (No 2) (1953) 88 CLR 168 at 170; Austral Pacific Group Ltd v Airservices Australia (2000) 203 CLR 136; Edensor at 591[68], 593-594 [72]-[74]; Bass v Permanent Trustee Group (1999) 198 CLR 34 and British American Tobacco Australia Ltd v Western Australia (2003) 77 ALJR 1566 at [65]. This makes it unnecessary to decide whether s 57 is procedural or substantive for this purpose, a distinction which the High Court has said in this context is “not one that sheds any great light on this, or any other area of the law”: Bass at 350.
92 In line with this, the Full Court emphasised that:
It is fundamental to the understanding of the operation of s 79 that it applies not just to the Federal Court and to other federal courts, but also to State and Territory Courts when exercising federal jurisdiction. It is in that context, as part of the regulation of the exercise of the judicial power of the Commonwealth, that s 79 picks up applicable State law so as to apply it as federal law to the resolution of a controversy within the authority of the Commonwealth to quell; it is not a question of State Parliaments, by legislation, controlling federal courts.
93 It follows that the decision in Woodlands must be regarded as overruled insofar as it held that s 47(1) of the LAC Act was not applied as a federal law by operation of s 79 of the Judiciary Act on the basis that s 79 applied only to procedural laws. However, that does not determine the question of whether s 79 operates to apply s 47(1) as a surrogate federal law. That question remains open. That said, the applicant did not argue that s 47(1)(b) applied by operation of s 79 of the Judiciary Act and in the absence of any argument on the point, it would be inappropriate for me to determine the issue. I note in this regard that, while s 47(1) may (if it applies to these proceedings) also be relevant to the exercise of the discretion to award costs, ultimately it deals directly only with enforcement of costs orders.
94 The application for judicial review must be dismissed with costs.
I certify that the preceding ninety-four (94) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perry. |
Associate:
