FEDERAL COURT OF AUSTRALIA

CPJ16 v Minister for Immigration and Border Protection [2018] FCA 450

ORDERS

THE COURT ORDERS THAT:

1.    The further amended originating application dated 13 February 2017 be allowed as to ground 4.

2.    The decision of the Administrative Appeals Tribunal to affirm the decision of the delegate of the first respondent not to grant the applicant a bridging E (Class WE) visa be set aside.

3.    The application for review of the decision of the delegate of the first respondent be remitted to the Tribunal, constituted by a different member, for determination in accordance with law.

4.    The first respondent pay the applicant’s costs as assessed or agreed.

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

REASONS FOR JUDGMENT

BROMWICH J:

Introduction

1    This is an application for judicial review of a decision made by the Administrative Appeals Tribunal on 3 October 2017. The application is brought by way of a further amended originating application dated 13 February 2018, the proceedings having originally been commenced by an originating application that was dated 18 October 2017 and lodged for filing the next day. The Tribunal affirmed a decision by a delegate of the first respondent, the Minister for Immigration and Border Protection, to refuse to grant the applicant a bridging E (Class WE) visa pursuant to s 501(1) of the Migration Act 1958 (Cth). The Tribunal’s decision turned on findings that the applicant was not of good character, and that this outweighed considerations in favour of granting the bridging visa.

2    The present judicial review application in relation to the refusal of a bridging visa falls for consideration in the context of the applicant’s quest, over a number of years, to be granted a protection visa in Australia. That application was based upon fears she claimed to have as to what would happen to her at the hands of criminal elements in New Zealand with whom she had a prior association. She sought a bridging visa so that she could live in the Australian community pending the outcome of the protection visa determination process.

Overview

3    The applicant is a New Zealand citizen who has been living in Australia since March 2009. She has an Australian husband and a five-year-old Australian son from a prior relationship. Her Australian child is referred to in these reasons as “B”. She has an older child in New Zealand who is referred to here as “A”.

4    The applicant has a lengthy criminal history in both New Zealand and Australia, and outstanding criminal charges in New Zealand. None of her convictions were serious enough to trigger the application of the provisions of the Migration Act that require the mandatory refusal of the bridging visa sought. However, those convictions, along with other facts and circumstances found by the Tribunal, led to the Tribunal’s conclusion that the applicant did not pass the character test because of her past and present criminal and general conduct, and because of a risk that, if she were allowed to enter or remain in Australia, she would engage in criminal conduct here: see ss 501(6)(c)) and (6)(d) of the Migration Act.

5    The circumstances relied upon by the Tribunal in making the adverse character findings included:

(1)    the applicant’s prior convictions;

(2)    certain aspects of her outstanding criminal charges in New Zealand;

(3)    the fact that she last entered Australia using a passport in the name of someone else, leading to her entry visa being cancelled;

(4)    the fact that she subsequently absconded from immigration detention and lived in the community as an unlawful non-citizen for almost five years (during which time her Australian son was born) – the reasons the applicant gave for absconding from immigration detention were associated with her protection visa claims and asserted fears; and

(5)    orders made by the Children’s Court of New South Wales allocating parental responsibility for B to B’s father, including undertakings he gave, inter alia, to provide limited supervised contact between the applicant and B.

6    The basis for finding that the applicant was not of good character, which favoured refusal to grant the bridging visa, was considered by the Tribunal to outweigh the finding, on a very limited basis, that granting the bridging visa was in the best interests of B. The decision of the delegate to refuse the grant of the protection visa was thus affirmed.

The grounds of judicial review

7    The grounds of the application for judicial review were as follows (omitting particulars):

1.    The Tribunal failed to consider all mandatory relevant considerations in relation to, or constructively failed to consider, the best interests of the Applicant’s child, B.

2.    The Tribunal constructively failed to consider the best interests of the Applicant’s child, B, or constructively failed to consider a claim raised by the Applicant, by failing to consider the evidence of Dino Cipriani or, alternatively, failed to afford the Applicant procedural fairness by rejecting or refusing to consider the evidence of Dino Cipriani.

3.    The Tribunal acted irrationally, took into account an irrelevant consideration, failed to apply the correct test, or, alternatively, failed to afford the Applicant procedural fairness, in finding that pending and unproven charges against the Applicant in New Zealand should be taken into account either as “past and present criminal conduct” under s 501(6)(d)(i) or as “past and present general conduct” under s 501(6)(d)(ii) of the Migration Act.

4.    The Tribunal acted irrationally, took into account an irrelevant consideration or alternatively failed to apply the correct test, in finding that orders made by the Children’s Court of New South Wales “reflected adversely on the Applicant’s conduct in relation to B”.

5.    The Tribunal took into account an irrelevant consideration, had no basis to properly assess or constructively failed to assess, the merits of the Applicant’s claim that she had a real risk that she would suffer serious harm if she returned to New Zealand or, alternatively, failed to afford the Applicant procedural fairness before doing so.

8    Grounds 1 and 2 concern the Tribunal’s approach to the best interests of B, both in terms of what was expressly dealt with and, more importantly, what was not addressed in terms.

9    Grounds 3 and 4 relate to the Tribunal’s approach to the applicant’s prior conduct, including, in particular, the reliance on outstanding charges in New Zealand as an aspect of general conduct and the reaching of adverse conclusions from orders made (including undertakings given) in the Children’s Court of New South Wales.

10    Ground 5 concerns the Tribunal’s treatment of the applicant’s protection visa claims.

Relevant Extracts

Direction No. 65

11    It was common ground that the delegate and the Tribunal were bound by Direction No. 65 made under s 499 of the Migration Act, which relevantly deals with visa refusal (the Direction). The relevant portions of the Direction are as follows:

11    Primary considerations – visa applicants

(1)    In deciding whether to refuse a non-citizen’s visa, the following are primary considerations:

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.

…

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.

(2)    This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to refuse to grant the visa is expected to be made.

(3)    If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.

(4)    In considering the best interests of the child, the following factors must be considered where relevant:

a)    The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);

b)    The extent to which the 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;

c)    The impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have, a negative impact on the child;

d)    The likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;

e)    Whether there are other persons who already fulfil a parental role in relation to the child;

f)    Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);

g)    Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and

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

…

Orders made by the Children’s Court

12    Because an important aspect of both the applicant’s case and the Minister’s case turned on the orders made by the Children’s Court, it is necessary to reproduce those orders in full, including undertakings given by B’s father:

ORDER OF CHILDREN’S COURT

...

Name(s) of Child(ren)/Young Person(s):        1. [B]

Date(s) of Birth (respectively):            1. [date in 2012]

…

Date of order        16 May 2016

Place of order        Bidura Children’s Court

…

1.    Pursuant to section 79 (1) (a) of the Children and Young Persons (Care and Protection) Act 1998 that parental responsibility for [B] born [date in 2012] shall be allocated to his father [X] for all aspects of parental responsibility except contact for a period of 6 months from the date of this order.

2.    Pursuant to section 79 (1) (b) of the Children and Young Persons (Care and Protection) Act 1998 that parental responsibility for [B] born [date in 2012] shall be allocated the [sic] Minister for Family and Community Services for a period of six (6) months from the date of this order for the aspect of contact only.

3.    Pursuant to section 79 (1) (a) of the Children and Young Persons (Care and Protection) Act 1998 at the expiration of orders 1 and 2 above that parental responsibility for [B] born [date in 2012] shall be allocated to his father [X] for all aspects until he attains the age of eighteen (18) years.

…

FORM OF UNDERTAKINGS

…

1.    Pursuant to Section 73 of the Children and Young Persons (Care and Protection) Act 1998, the Court accepts undertakings from [X]

a.    I will not restore [B] to his mother’s care.

b.    I agree to facilitate supervised contact between [B] and his mother once per month at the conclusion of these orders, whilst she remains in NSW, until [B] attains at least twelve (12) years of age.

c.    I will supervise or ensure that a responsible adult supervises any contact between Ms Mars and [B], be it through Skype or equivalent, telephone calls, letters or any future face to face contact, until [B] attains at least twelve (12) years of age.

Ground 1 – best interests of B

13    The applicant challenged four aspects of the way in which the Tribunal arrived at the conclusion that while, on balance, the grant of the bridging visa would be in the best interests of B, that did not outweigh the finding of the applicant not being of good character. All four aspects concern the omission from the Tribunal’s reasons of any reference to certain matters raised by the evidence. It was argued that that omission was contrary to the requirements imposed by cl 11.2(4) of the Direction, reproduced at [11] above. Those omissions were as to:

(1)    the nature and duration of the relationship between the applicant and B, referred to in cl 11.2(4)(a);

(2)    the extent to which the applicant was likely to play a positive parental role in the future, taking into account the length of time until B turns 18, referred to in cl 11.2(4)(b), with no assessment having been made of the role that the applicant was likely to play in B’s life;

(3)    the likely effect on B of separation from the applicant, referred to in cl 11.2(4)(d), as addressed in a report by Mr Dino Cipriani, a clinical psychologist; and

(4)    the views of B, referred to in cl 11.2(4)(f), it having been conceded by counsel for the Minister at the Tribunal hearing that B would wish to have contact with his mother.

14    It is not in doubt that the particular matters raised by the applicant were not expressly dealt with in the Tribunal’s reasons. Nor was there any lack of material before the Tribunal that went to each aspect. To the contrary, there was written and oral evidence from the applicant and oral evidence from her former partner (B’s father) that went to each. That included evidence in chief and evidence in cross-examination about B’s circumstances, certain aspects of the proceedings in the Children’s Court, and the circumstances in which Mr Cipriani came to make his report. Importantly, each of the paragraphs in cl 11.2(4) of the Direction were expressly addressed at the Tribunal hearing by counsel for the Minister, which was in part done to assist the applicant.

15    The applicant’s case for judicial review of the Tribunal’s decision turned upon the proposition that, in making a favourable finding (in this case, that the grant of the bridging visa was in B’s best interests), the Tribunal was required to specifically address certain factors in cl 11.2(4) of the Direction (namely, (a), (b), (d) and (f)) that it did not ultimately rely upon (as inferred from their omission from the reasons), and address why it did not rely upon them. In developing that argument, the applicant relied upon:

(1)    The reasons of Allsop J (as his Honour then was) in Perez v Minister for Immigration and Multicultural Affairs [2002] FCA 450; 119 FCR 454 at [117]-[121] – the applicant submitted that in that case, the decision-maker made reference to factors that were relevant to the consideration of the best interests of the child but did not then go on to consider those factors in written reasons, aside from stating material findings of fact. His Honour deemed this to be insufficient consideration. His Honour highlighted a range of factors that are relevant when considering the best interests of children, and stated that identifying facts which may raise the need to consider the best interests of the child did not amount to taking those best interests into account. His Honour noted the kind of consideration that is required since the High Court’s decision in Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273. The applicant’s counsel submitted that Direction No. 65 draws on the same principles elucidated in Perez and, accordingly, Teoh, in relation to what is relevant when considering the best interests of children, and made particular note that Direction No. 65 requires the best interests of the child to be a primary consideration.

(2)    The reasons of Perram J in SZTMD v Minister for Immigration and Border Protection [2015] FCA 150; 150 ALD 34, which, it was submitted, was a case concerning alleged jurisdictional error by way of a failure to refer to certain matters that were required to be referred to under Direction No. 65. The Tribunal in that instance made passing reference to two guidelines and country information it was required to take into account “to the extent that they are relevant to the decision under consideration”, but made no substantive comment beyond that reference. The Tribunal further did not express whether it had dealt with those guidelines and country information elsewhere in its reasons, or whether it had regarded some parts or all of that material to be irrelevant to its task. His Honour, in considering that omission, referred to the principle in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 that the Court is entitled (non-mandatorily) to infer, on the basis of s 430(1) of the Migration Act, that a matter not mentioned in the Tribunal’s reasons was not considered by it to be material. His Honour considered that if the Yusuf inference were to be drawn, which in some instances it could only make sense to do, it was open to and likely required of the Court to conclude that the Tribunal did consider the relevance of the guidelines and the country information and decided they were not relevant. The applicant submitted that the implication of this was that where there is silence by the Tribunal on certain matters, the Court must be satisfied that the Tribunal formed an opinion that those matters were not relevant before the Court can determine that the Tribunal dismissed those matters on that basis.

16    The Minister contended that the four matters listed at [13] above did not need to be expressly referred to by the Tribunal for the following reasons:

(1)    The obligation to have regard to particular factors in cl 11.2(4) in relation to the best interests of a child is expressly conditioned upon each being considered to be relevant, a matter that was for the Tribunal to determine (citing Nigam v Minister for Immigration and Border Protection [2017] FCA 106 at [12]-[20], per Perry J, in which her Honour observed that it is for the Tribunal to determine what is relevant).

(2)    The Tribunal was not making its decision in circumstances in which restoring the applicant to a parental role in relation to B, or any of the other factors relied upon by the applicant, was an option, because that was expressly precluded by the orders made by the Children’s Court. Those orders included undertakings given to that Court by B’s father that severely limited the scope for the applicant to have anything to do with B, let alone for her to assume any parental responsibility whatsoever. The conditions for supervised contact between the applicant and B were better in the community than within an immigration detention centre for the reasons given by B’s father, whose evidence was expressly acknowledged by the Tribunal. However, the nature and extent of supervised contact between the applicant and B was no different whether or not a bridging visa was granted. Indeed, the supervised contact that B’s father had facilitated at the immigration detention centre exceeded that which he had to permit under the undertakings he gave to the Children’s Court. The Minister thus submitted that it should be readily inferred that the matters not referred to were not considered by the Tribunal to be relevant.

(3)    The duration of any bridging visa, while it might be as long as a number of years due to any legal proceedings arising in the course of the protection visa application determination process, was nonetheless temporary and finite. The grant or refusal of a bridging visa, at least in those circumstances, was in a different category to other situations in which the best interests of a child might arise, especially when regard is had to the highly limiting effect of the Children’s Court orders and undertakings.

(4)    In any event, the Minister submitted that this was not a situation in which the Tribunal had concluded that the grant of the bridging visa was not in the best interests of B, but rather that it was in his best interests. However, the Tribunal concluded that the consideration of the best interests of B, in this very limited sense, was outweighed by considerations favouring refusal of the grant of the bridging visa. It was for the Tribunal, having found that the grant of the bridging visa was in B’s best interests, to decide which considerations leading to that conclusion should be given weight as against the factors favouring refusal to grant the visa. The Tribunal only needed to refer to the matters that it had given weight to, not those it had not.

17    The Minister further submitted that the applicant’s reliance on Perez was misplaced, as the case has subsequently been read down by two Full Court decisions, namely Sebastian v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 31 and Brown v Minister for Immigration and Border Protection [2015] FCAFC 141; 235 FCR 88. The Minister highlighted Sebastian at [15], where the Full Court stated:

We do not take his Honour in Perez to lay down a rule that in every case a decision-maker must go through a list of factors which might inform a decision as to what is in the best interests of the child. In many cases that will be appropriate, but it cannot in our view preclude an approach which assumes that all those factors point to one conclusion, namely that it will be in the best interests of a child to remain with their parents.

18    The Minister then pointed to Brown at [34], where the Full Court distinguished Perez in the following excerpt from that paragraph (omitting case references):

… However, in that case the delegate did not state that he had taken the children’s interests into account as a primary consideration. Nor was there anything in the reasons which displayed an appreciation by the delegate of the kinds of considerations relevant to minor children which form their best interests. It was for these reasons that Allsop J found that the delegate’s decision fell short of what Teoh required. 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.

The Full Court in Brown went on to highlight at [35] the difference between taking issue with the weight given to the best interests of children over other considerations, being a question of merit, and taking issue with the judicially reviewable process by which the Minister arrived at his conclusions, citing Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; 243 CLR 164 at [33] and [36]. The Full Court stressed the limited role of the courts on judicial review, citing Attorney-General v Quin (1990) 170 CLR 1 at 36.

19    The submissions for the Minister also took issue with aspects of the applicant’s characterisation of what the evidence before the Tribunal revealed. However, it is not necessary to resolve the conflicting views as to what transpired. That involves traversing fact-finding and merits in a way that, even if permissible, does not advance the resolution of this dispute.

20    The Minister’s submissions as to the state of the law on this topic should be accepted and inform the reasoning to follow.

21    As noted above, all of the material which the applicant relied upon to advance the factors that were not referred to was not just in documentary form, but was addressed by way of evidence or submissions (or both) in the course of the Tribunal’s hearing. That hearing took place over three separate days. Viewed in that way, the real question is whether the Tribunal was obliged to have regard to, or at least expressly refer to and reject or otherwise find not to be relevant, the factors that the applicant identified. The applicant’s argument that the Tribunal was so obliged has the practical effect of requiring the Tribunal to expose its mental processes or provisional views: cf Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 592B. That goes further than the obligation to state the findings on any material questions of fact: see s 368(1)(c) of the Migration Act.

22    In all the circumstances, it can be readily inferred that the factors in cl 11.2(4) of the Direction that were not referred to by the Tribunal were not considered to be a reason, or part of a reason, for a central finding that the grant of the bridging visa was in B’s best interests, albeit on a more limited basis than the applicant contends that it should have been. The Tribunal, by noting the Minister’s submission that the consideration of the best interests of B was neutral, and by making express reference to the order made by the Children’s Court while reproducing the substance of the undertaking given by B’s father that formed part of the orders made, must be taken to have formed the view that none of the listed factors in cl 11.2(4) of the Direction had any relevant part to play in all the circumstances, and, therefore, within the terms of that clause, were not required to be taken into account. The Tribunal only departed from that conclusion in the limited sense of finding, on the basis of the evidence of B’s father, that supervised contact visits would be better in the community than at a detention centre, and that, to that extent, the grant of the bridging visa was in B’s best interests.

23    That characterisation – namely, of the applicant’s argument amounting to a contention that the Tribunal’s finding that the grant of the bridging visa was in B’s best interests was made on a more limited basis than the applicant contends it should have been – reveals a fundamental flaw in this aspect of the applicant’s case. It was for the Tribunal and the Tribunal alone to determine which material was relevant and which was not, including as to the factors listed in cl 11.2(4) of the Direction. The process of mental reasoning in reaching that conclusion was not required to be exposed in the Tribunal’s reasons, although, of course, if the conclusion had been in some way irrational or legally unreasonable, then the absence of reasons would have meant that there was nothing to explain the otherwise inexplicable. However, that was not the case here. Doubtless, it would have been better if the Tribunal had taken the time and the trouble to spell out why those aspects of the Direction were either not considered relevant, or, alternatively, were not given determinative weight. However, the failure to do so does not vitiate the decision in this respect.

24    Whatever view was taken of the nature and duration of the relationship between the applicant and B, the effect of B being separated from the applicant and B’s wish to have contact with her, it was open to the Tribunal to have regard to none of those matters in all the circumstances, and therefore not to address them expressly. That is because it was open to the Tribunal to reason, without expressly stating it, that none of those factors could change the practical reality that B’s best interests would only be advanced by a bridging visa being granted in the limited sense that the Tribunal had identified, namely, of better facilitating the very limited supervised monthly contact between the applicant and B allowed by the undertaking given by B’s father to the Children’s Court. The same conclusion applies to any assessment of the extent to which the applicant was likely to play a positive parental role in the future, given that no aspect of parental responsibility was reposed in the applicant by the Children’s Court. There was no scope for the applicant to play any positive parental role beyond that which could take place in the course of the existing supervised monthly visits by B, irrespective of whether those supervised visits took place in the immigration detention centre or in the community.

25    This ground of review must therefore fail.

Ground 2 – Mr Cipriani’s report

26    This ground of review, to an extent, revisited an aspect of ground 1, insofar as it turned upon a more detailed consideration of Mr Cipriani’s report (the Report), which went to the factor relied upon for ground 1 arising from cl 11.2(4)(d) of the Direction. The applicant contended that the Report was required to be considered because it was relevant material that went to the exercise of power, citing well-established authority to the effect that such a failure may constitute jurisdictional error. It was further contended that, in circumstances where the Report had been accepted and relied upon by the delegate, procedural fairness demanded that the applicant be put on notice if the Tribunal was considering departing from the report or did not consider it to be relevant.

27    The response of the Minister, while not taking issue with the principles espoused, as opposed to their application to the present case, again largely argued a contrary conclusion from a practical perspective. The Minister pointed out that the Report followed an assessment that was made on 3 May 2016. The report was dated 23 May 2016, and noted that the applicant was to attend the Children’s Court on 16 May 2016, being the date upon which the orders concerning B were made.

28    The Minister argued, in effect, that the Report had been overtaken by events. In large measure, it was addressing a set of options and circumstances that ceased to exist upon the Children’s Court orders being made. As to the asserted denial of procedural fairness, the Minister’s statement of facts and contentions before the Tribunal, which were annexed to the Minister’s submissions without objection, identified the fact that the Children’s Court orders restricted the applicant’s access to B, which did not change whether or not a bridging visa was granted. This was thus a live issue before the Tribunal, and the applicant was sufficiently on notice that the Tribunal was being urged to take a different view about the Report, albeit without overtly criticising the delegate, which was not necessary.

29    The Minister pointed out that both the applicant and B’s father were cross-examined about the Report. The cross-examination of the applicant confirmed that the Report was obtained for the purposes of the Children’s Court proceedings (rather than in response to them and any orders that might be made), even though the Report apparently did not end up being used in those proceedings. B’s father was cross-examined to cast doubt on the correctness of some important aspects of the information supplied by the applicant to Mr Cipriani, such as the quality of care B was receiving and his state of mind. As noted in relation to ground 1, the Minister had submitted to the Tribunal that consideration of the best interests of B was neutral in this case, submitting in particular that the Children’s Court orders reflected B’s best interests, while accepting the Tribunal’s comment that it was up to it to make its own determination on that issue. The Minister again pointed out that the Tribunal only rejected that submission in the limited sense of accepting the evidence of B’s father that taking B to visit the applicant in detention was not ideal. In that limited sense only, the Tribunal concluded that the grant of a bridging visa was in the best interests of B – that is, that contact visits would be better in the community than in the detention centre.

30    The submissions for the Minister should again be accepted. In all the circumstances, the Tribunal was entitled not to refer to the Report in its reasons, as the evidence was capable of being viewed as showing that the conclusions reached by Mr Cipriani ceased to have any practical application once the Children’s Court orders were made.

31    This ground of review must therefore fail.

Ground 3 – outstanding charges in New Zealand as “conduct”

32    This ground relied upon the terms of s 501(6)(c) of the Migration Act, which enable a finding to be made that an applicant for a visa does not pass the character test because:

(c)    having regard to either or both of the following:

(i)    the person’s past and present criminal conduct;

(ii)    the person’s past and present general conduct;

the person is not of good character; …

33    The applicant’s argument was that “conduct”, in either sense referred to in s 501(6)(c), relates to the Tribunal making a finding as to what the applicant has actually done, or was doing, rather than merely an allegation to that effect. That much may be accepted, at least for present purposes. It is not necessary to embark upon a consideration of what more material supporting an allegation may be sufficient for the Tribunal to make any finding of fact as to what has, in fact, happened, because there was no suggestion that the outstanding charges were accompanied by any material which described what it was that the applicant was alleged to have done: see, by way of contrast, Taulahi v Minister for Immigration and Border Protection [2018] FCAFC 22.

34    In seeking to demonstrate that the Tribunal had treated mere allegations as being sufficient to establish that the underlying conduct had in fact taken place, the applicant relied upon the second sentence in the chapeau to [26] of the Tribunal’s reasons (reproduced below) and upon the reference to outstanding charges in [49] and [50]. To contradict that interpretation, the Minister relied additionally upon the balance of [26], along with [27] to [30]. Those parts of the Tribunal’s reasons are as follows:

26.    The Applicant has outstanding charges for criminal offences in New Zealand, and outstanding warrants, as she has acknowledged in her evidence. The Tribunal takes those matters into account as an aspect of her general conduct because the charges have not been tested in the court and she has not been convicted. An email from Interpol Wellington states that the Applicant has the following active charges:

•    Unlawfully in a building;

•    Fail to answer District Court bail;

•    Import/Export Fantasy-type substances;

•    Possess for Supply – Fantasy substances;

•    Sell/Give/Supply/Administer/Deal Fantasy substances (4 charges);

•    Procure/possess methamphetamine/amphetamine; and

•    Drove under influence of drink or drug – 3rd or subsequent.

27.    The evidence is clear that the Applicant was on bail when she left New Zealand, that her New Zealand passport had been confiscated as part of her bail conditions, and that she left New Zealand on a false passport that she had purchased. Taking into account those circumstances and the nature of the outstanding charges, the Tribunal finds that the outstanding charges are of a more serious kind than the offences of which the Applicant had been previously convicted.

28.    The Tribunal does not accept the Applicant’s claim that a New Zealand policeman has told her that the police will not be getting involved in relation to the outstanding warrant or warrants. She has not provided the email she claims that an officer sent to her.

29.    The Tribunal finds that the Applicant has serious criminal charges pending against her in New Zealand. It does not accept her evidence that sought to minimise the seriousness of those charges or her claims that the New Zealand police would not pursue them. There is extensive reference in the protection visa decision dated 4 August 2016 to the Applicant’s evidence in that case where she first claimed the outstanding charges were minor, and then when the nature of the charges were put to her, sought to explain them away.

30.    The Applicant used the false passport she had purchased to enter Australia. She provided incorrect information to the department on her incoming passenger card on 19 March 2009. She did not disclose her criminal history. The Applicant has given explanations about why she absconded from immigration detention three days after being detained in 2010 and why she did not apply to regularise her migration status with the department before being detained in August 2015. The Tribunal did not find the explanations persuasive, including her claims to be at risk of serious or significant harm from a bikie gang in New Zealand, to which the Tribunal will return later in this decision in relation to Australia’s international non-refoulement obligations.

…

49.    Taking into account the Applicant’s past criminal history, the outstanding criminal charges in New Zealand, her departure from New Zealand on a false passport, her arrival in Australia on that false passport and giving incorrect information on the arrival cards, her escaping from detention in 2010 and remaining in the community unlawfully for five years until found and taken back into detention, her working while unlawfully in the community, her conduct while in detention, the Court order made in relation to B, the New Zealand protection agency record in respect of A, and the fact that she was prepared to provide to this Tribunal a document purporting to be signed by B’s father which she had signed when he would not, the Tribunal finds that the Applicant is not of good character in accordance with s 501(6)(c) of the Act.

50.    While the Applicant has not been convicted of any criminal offences or driving offences since 2010, given her past criminal conduct and her general conduct, including the outstanding criminal charges in New Zealand, leaving New Zealand on a false passport in breach of bail, her migration history in Australia summarised above, and her conduct during these proceedings, the Tribunal finds that in the event that the Applicant were allowed to remain in Australia, there is a risk that she would engage in criminal conduct in Australia (s 501(6)(d)(i)).

35    The applicant characterised the passages she relied upon as amounting to a finding by the Tribunal that mere allegations by way of criminal charges that have not been heard and determined, while not establishing “criminal conduct”, nonetheless constituted proof of “general conduct” by which those offences have been committed. The applicant contended that that finding was made without having considered any evidence or material of what the applicant had done, even as an administrative fact-finder and decision-maker. The Minister did not dispute that it was not open to the Tribunal to treat the outstanding charges themselves as constituting proof of the underlying conduct, whether characterised as “criminal conduct” or “general conduct”. That concession was confined to a case such as this in which there was no material about the underlying conduct by which any conclusion as to what had occurred could be reached. The Minister also said that the fact that there were outstanding charges remained something that could be taken into account in the overall matrix of information available to the Tribunal, because it was not irrelevant or of no moment.

36    The Minister contended that, fairly read, the Tribunal had not done as the applicant alleged and made any finding that the conduct underlying the outstanding charges had taken place (noting that there was no information available to the Tribunal as to that conduct beyond the short description of the charges). Rather, the Minister submitted that the Tribunal did no more in relation to the outstanding charges than have regard to the applicant:

(1)    downplaying the serious nature of the outstanding charges;

(2)    reacting to those charges by breaching her bail conditions in New Zealand (and as part of that, fleeing to Australia using a passport in the name of someone else that she had purchased); and

(3)    asserting, in a manner that the Tribunal did not accept, that the New Zealand police would not pursue those charges,

as providing, along with certain other facts and circumstances, a basis for concluding that the applicant was not of good character and that there was a risk that the applicant would engage in criminal conduct in Australia. The Minister submitted that, read beneficially, the Tribunal’s reference to the outstanding charges being an aspect of the applicant’s general conduct was a reference to her behaviour in relation to the existence of those charges, or in response to them, rather than to the conduct alleged to have been engaged in to commit those alleged offences, as part of her “general conduct”.

37    It is well-established that the reasons of administrative decision-makers must be read beneficially: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272. When that approach is taken, the Minister’s submissions must be accepted. A fair reading of the Tribunal’s reasons makes it tolerably clear that the Tribunal was considering the applicant’s behaviour in relation to the outstanding charges, or in response to them, rather than making any finding as to whether or not the underlying conduct alleged to have taken place to commit the offences charged had occurred. That was then being relied upon as one aspect of the applicant’s general conduct going to the issue of good character and the risk of her engaging in criminal conduct in Australia. That assessment was a matter for the Tribunal. The Tribunal did not make any finding that the conduct underlying the outstanding charges had actually been engaged in by the applicant. To the contrary, the Tribunal made express reference at [26] to the charges not having been tested in court and the applicant not having been convicted. That reference must be taken into account when the outstanding charges are referred to elsewhere.

38    This ground of review must therefore fail.

Ground 4 – Children’s Court orders reflected “adversely” on the applicant’s conduct

39    This ground is similar in character to ground 3, but instead turns on the Tribunal’s treatment of the orders of the Children’s Court (which must be taken to include the undertakings from B’s father that accompanied those orders). The relevant passages of the Tribunal’s reasons are as follows:

41.    On 16 May 2016, the Children’s Court of New South Wales made orders in relation to child B pursuant to s 79(1) of the Children and Young Persons (Care and Protection) Act. The order allocated parental responsibility to the Minister for Family and Community Services for a period of six months from the date of the order and then made an order allocating parental responsibility to B’s father until B attains the age of 18 years. The Court accepted undertakings from B’s father that he:

•    Will not restore B to his mother’s care;

•    Agreed to facilitate supervised contact between B and the Applicant once per month while she remains in NSW until B is 12 years of age; and

•    Will supervise or ensure that a responsible adult supervises any contact between the Applicant and B, “be it through Skype or equivalent, telephone call, letters or any future face to face contact”, until B is 12 years of age.

42.    The Applicant claimed that there had not been a court hearing because she was in detention. She claimed that the allegation made against her in relation to B was false.

43.    A letter from the relevant state child welfare agency to the Applicant dated 8 May 2017 states the following:

…(the agency) does not hold inaccurate information about the incidents, it holds information about (child A’s) accidental ingestion of ecstasy in 2005 as described by New Zealand child protection officials. It also holds information about your alleged use of Panadol to sedate (child B) from reports of risk of harm made to it. You would be aware of this because you hold copies of the reports and affidavits filed by (the agency) in the Children’s Court.

44.    The Tribunal does not accept that there was not a court hearing because the Applicant was in detention. Movement records show that she was taken to the Children’s Court from detention seven times. Tribunal [sic] finds that the Court was satisfied that the orders were appropriate. It does not go behind the orders. The orders reflect adversely on the Applicant’s conduct in relation to B. The report of the incident involving A also reflects adversely on the Applicant. In making those findings, the Tribunal has taken into account various accounts and documents where the Applicant claims the circumstances of the incidents involving her sons are false or different from what the agency recorded but does not accept her evidence.

40    The applicant asserted that the Tribunal had either:

(1)    found that the applicant had, in fact, used Panadol to sedate B; or

(2)    otherwise found that the Children’s Court orders meant that the applicant did something that reflected adversely in some way on her conduct towards B.

41    It was submitted by the applicant that neither finding was available because the evidence before the Tribunal rose no higher than an allegation that adverse conduct had occurred, that allegation not being identified, sourced or particularised, and there being no evidence that the Children’s Court found any allegation to be established as any part of the process of making the orders. The applicant relied upon counsel for the Minister saying at the Tribunal hearing that all that was known was that orders were made, and that those orders meant that the applicant could have no unsupervised contact with B until he is 12 years of age (remembering that, as he is now 5 years of age, that is well past the point at which any bridging visa is likely to be operative). It was further submitted that for all the Tribunal knew, the Children’s Court could have been primarily influenced by the parties’ consent to the orders and by the fact that the applicant was in immigration detention.

42    The applicant’s description of the state of the information available to the Tribunal about the making of the Children’s Court orders is fair, especially as to any evidence that a finding was made by the Tribunal based upon no more than allegations concerning the applicant’s conduct in relation to B. The live question is therefore whether the Tribunal went that far in making any such finding.

43    Reliance was placed by the applicant, by analogy, on the High Court family law case of M v M (1988) 166 CLR 69 at 76-7, and the statement therein of what is sometimes known as the precautionary principle. That principle states that a court may take protective action in relation to a child without actual proof of serious allegations (in that case, of sexual abuse), and, indeed, should not make a positive finding that such an allegation is true unless satisfied of that fact to the civil standard, with due regard to the principles in Briginshaw v Briginshaw (1938) 60 CLR 336 at 362.

44    The Minister sought to characterise the applicant’s case as requiring this Court to find that it was not open to the Tribunal to consider that the removal of B from the applicant’s care by the relevant State authorities, and the orders made by the Children’s Court permanently removing B from her care and custody and severely restricting her access to him, reflected adversely on the applicant’s general character. The Minister relied on some evidence that was before the Tribunal as to the possible conduct by the applicant towards or affecting B to indicate the circumstances behind the orders being made. The details of that evidence do not need to be repeated, given that they are not expressed as anything more than allegations.

45    The Minister’s submissions overstate the applicant’s argument. The applicant was asserting that the Tribunal's reference to the Children's Court orders reflecting adversely on her amounted to a finding that there had been some acceptance by that Court as to the truth of the allegations before it. If that characterisation were made good, then that could well be a basis for vitiating the Tribunal’s decision in that respect. This is because there was no basis, in the bare allocation of sole parental responsibility to B’s father, for finding that any of the allegations about the applicant’s conduct towards B were established. There was simply no evidence on that one way or the other.

46    However, there is a more fundamental problem with the applicant’s challenge to this aspect of the Tribunal’s reasons, which is as follows. The Tribunal referred to:

(1)    orders allocating parental responsibility to the Minister for Family and Community Services for six months;

(2)    orders allocating parental responsibility to B’s father until B is 18 years of age;

(3)    undertakings given to the Children’s Court by B’s father; and

(4)    the bare allegations contained in a letter from the New South Wales Department of Family and Community Services (FACS letter) about the applicant’s alleged use of Panadol to sedate B, drawn from “reports of risk of harm”, which it was said that the applicant would have been aware of due to reports and affidavits tendered in the Children’s Court.

47    It should be noted that the FACS letter was a response to a complaint made by the applicant about information being provided to the Minister’s Department in breach of confidentiality provisions in the Children and Young Persons (Care and Protection) Act 1998 (NSW). That letter contained a description of the information held by FACS about incidents concerning A and B, apparently in rebuttal of a prior suggestion by the applicant that FACS had inaccurate information about those incidents. That paragraph of the FACS letter was quoted by the Tribunal at [43], reproduced above at [39].

48    The Tribunal found that the Children’s Court was satisfied that the orders were appropriate and expressly did not go behind those orders, but found that the orders themselves reflected adversely on the applicant’s conduct in relation to B. Taking the Tribunal’s reference to “the orders” of the Children’s Court as encompassing a reference to the undertakings given by B’s father annexed to those orders, and apparently forming a part of the basis upon which those orders were made, the question therefore raised by the applicant is whether it was open to the Tribunal to conclude that “[t]he orders reflect adversely on the Applicant’s conduct in relation to B”. Read non-beneficially, that may be taken, as the applicant asserts, to be a finding that the conduct alleged on the part of the applicant towards B was found by the Children’s Court to have been established. If that was what the Tribunal was saying, then it went beyond what was open to it to conclude on the available material. It also goes further than the Children’s Court needs to go in finding that a child is in need of care and protection, and in allocating, in a non-contested hearing, parental responsibility first to the Minister for Family and Community Services, and then to B’s father, subject to undertakings being given.

49    However, read beneficially, the Tribunal may be understood as saying that the Children’s Court took the allegations seriously enough to make orders for the allocation of parental responsibility away from the applicant, and to impose quite severe limitations on her supervised contact with B by requiring undertakings to be made to that effect by B’s father. That restriction on the role of the applicant – B’s mother – was something that the Tribunal considered reflected adversely upon her character. The consequential question raised by the applicant was whether or not such a conclusion was open to the Tribunal, in the sense of being irrational or legally unreasonable.

50    In Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332, the High Court held that an exercise of administrative discretion may be characterised as irrational and also unreasonable if it exceeds what is necessary for the purpose it serves. The Court held that the Migration Review Tribunal (as it then was) was under an obligation to exercise its discretionary power reasonably (with what is “reasonable” necessarily being confined to what is legally unreasonable to avoid engaging in impermissible merits review). The High Court held, at [72], that where, having regard to the scope and purpose of a statute, a decision-maker may be regarded as having committed an error in reasoning, or as having given disproportionate weight to some factor or reasoning illogically or irrationally, a conclusion must be reached that the determination has been made in a legally unreasonable manner. The High Court further held, at [76], that where the result of a decision was plainly unjust or unreasonable, or where it was not possible for a court to comprehend how the decision was arrived at by the decision-maker (even where some reasons were provided as to how matters were considered), a decision lacking an evident or intelligible justification may be able to be characterised as unreasonable.

51    Following M v M, the precautionary principle must not only be taken to be well-known to a specialist child protection court such as the Children’s Court, but in fact frequently applied by that Court. It appears likely, perhaps quite understandably, that the Tribunal did not know about or, alternatively, understand the routine application of the precautionary principle in the child protection jurisdiction. Whether or not that is so as an explanation for the leap of logic imbedded in the Tribunal’s conclusion, for the following reasons, there was no foundation for the Tribunal’s finding that the making of the Children’s Court orders, including the undertakings given by B’s father, without more, adversely reflected on the applicant’s conduct towards B.

52    The problem is that the Tribunal did not say that the fact of the Children’s Court orders being made, including the undertaking by B’s father, adversely reflected on the applicant’s character because of the removal of parental responsibility and the severe restriction placed on her contact with B. While that would have been a harsh and extreme finding, it probably would have fallen short of being legally unreasonable, being a finding about which reasonable minds might differ. Instead, the Tribunal went one fatal step further. It said that the orders themselves (including the undertakings given by B’s father) “reflect adversely on the applicant’s conduct in relation to B”. The following sentence made the same finding about A, based on the “report of the incident involving A”, apparently also drawn from the quote from the FACS letter reproduced at [39] above, which involved the accidental ingestion of a drug. That reference is not the subject of challenge by the applicant, possibly because the accidental incident was not disputed to have taken place and the letter did not attribute blame. In making both of those findings, the Tribunal said that it had taken into account material by which the applicant said the incidents as reported were false or different, but rejected that contrary evidence.

53    Even read in the most beneficial way possible, the Tribunal’s finding, drawn from the bare fact of the orders being made, was that the alleged conduct towards B had, in fact, taken place. That conclusion is unavoidable because the Tribunal did not leave to speculation what was meant by the reference to conduct by the applicant towards B. That was spelt out in the paragraph quoted from the FACS letter. The conduct towards B was the “alleged use of Panadol tablets to sedate [B] from reports of risk of harm made to [FACS]”.

54    The Tribunal made a leap of logic that the Children’s Court, by merely making the orders and obtaining the undertaking from B’s father, went further than applying the precautionary principle (which, following M v M, cannot involve any conclusion that the conduct has, in fact, occurred without a proper hearing taking place and a determination being made applying the principles in Briginshaw). It was not enough for the Tribunal not to accept the applicant’s denial of those incidents. That does not and cannot be any substitute for the Tribunal either:

(1)    finding for itself that the conduct had occurred, which it did not do, presumably because there was no evidence to that effect; or

(2)    having any proper basis for relying upon such a factual finding being made by the Children’s Court, which was not only not able to be demonstrated, but was most unlikely to have occurred, given that it is tolerably clear that the making of the orders was not contested and no admissions were made.

55    All of the available evidence points inexorably to the conclusion that the Children’s Court orders were made in the due application of the precautionary principle, which not only makes it clear that no such finding had to be made, but that no such finding should be made in the absence of sufficient proof. It was legally unreasonable or irrational to conclude, as the Tribunal did, that the making of the orders by the Children’s Court, even being conditional upon the severe restrictions reflected in the undertaking given by B’s father, constituted any basis for reflecting adversely on the applicant’s conduct towards B in the sense of establishing that such conduct had, in fact, taken place. The Tribunal’s finding unavoidably meant that it was accepted that the allegations about the applicant’s conduct in relation to B were true. To find otherwise suggests that the Children’s Court itself was prepared to ignore the High Court’s decision in M v M, a proposition which I expressly reject.

56    This ground of review must therefore succeed. It is not possible to isolate this finding from the rest of the Tribunal’s adverse conclusions, so as to find that the overall decision was not fatally infected by this jurisdictional error.

Ground 5 – treatment of protection visa claims

57    The case made by the applicant in support of this ground focused on what was said to be a binary choice on the part of the Tribunal: either to stay away from the merits of the applicant’s protection visa application, or to consider it properly, giving the applicant a chance to be heard. It was argued that the Tribunal instead gave a cursory consideration of the applicant’s protection visa application and made adverse findings without giving the applicant any opportunity to be heard.

58    The Minister responded by submitting that the Tribunal’s primary position was correct in finding that international non-refoulement obligations were not relevant to that case because there was no suggestion that refusing the applicant a bridging visa would have the consequence that she would be sent back to New Zealand or out of Australia, as her protection visa application was still being considered. The Tribunal had only considered those obligations in the alternative and it was common ground that this was not necessary. To that it may be added that the alternative reasoning was not operative because the primary reasoning was not in doubt.

59    The applicant’s case then turned to what was said at [30], which has already been reproduced above at [34]. The applicant submitted that this amounted to an incomplete determination of the merits of her protection visa application, without giving her an opportunity to be heard.

60    The Minister contended that the above passage was confined to what the applicant had done in Australia. It was no more than a finding that, whatever the merits of the applicant’s protection visa application, it did not provide a persuasive reason for her absconding from immigration detention three days after being detained in 2010, nor for failing to regularise her immigration status in the almost five years until she was again detained in 2010.

61    The Minister’s submissions in relation to this ground should be accepted. There is no suggestion in the passage at [30] that the Tribunal was conducting any kind of merits assessment of the applicant’s case for the grant of a protection visa. The focus was on the inadequacy of the applicant’s explanation for being an unlawful non-citizen for almost five years after absconding from immigration detention. The second half of the last sentence in [30] makes it clear that any issue of non-refoulement obligations was being left to later in (in fact, the end of) the Tribunal’s reasons. As discussed above, that alternative consideration was unnecessary and inoperative.

62    It follows that this ground must fail.

Conclusion

63    In the circumstances of this case, it was enough for the applicant to succeed on ground 4. It follows that the further amended originating application must succeed on that limited basis. The Tribunal decision must therefore be set aside and the application for review be reheard by a differently constituted Tribunal. The Minister must pay the applicant’s costs.

Associate:

Dated:    5 April 2018