FEDERAL COURT OF AUSTRALIA

PXYJ v Minister for Immigration and Border Protection [2018] FCA 927

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The applicant pay the costs of the first respondent, to be assessed if not agreed.

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

REASONS FOR JUDGMENT

MCKERRACHER J:

INTRODUCTION

1    The applicant applies pursuant to s 476A(1)(b) of the Migration Act 1958 (Cth) for judicial review of a decision of the Administrative Appeals Tribunal in relation to s 501 of the Migration Act. Initially, the applicant sought to appeal pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth). It is clear, and became common ground, that the Court did not have jurisdiction under s 44 of the Administrative Appeals Tribunal Act to entertain an ‘appeal’ from the Tribunal’s s 501 decision. However, the Court does have jurisdiction under s 476A(1)(b) of the Migration Act to entertain an application for judicial review of such a decision. The Minister for Immigration and Border Protection consented to the applicant’s amended notice of appeal being treated as invoking the Court’s jurisdiction under s 476A(1)(b) of the Migration Act for judicial review, rather than an appeal under s 44 of the Administrative Appeals Tribunal Act.

RELEVANT FACTUAL BACKGROUND

2    The applicant was born in India in 1967 and issued with an Indian passport in 2000. The applicant began corresponding with a woman residing in Australia and they subsequently married in India in January 2007. His wife returned to Australia and the applicant applied for a Partner (Migrant) (Class BC) visa. He also applied for a Partner (Provisional) visa. In August 2007, the applicant was granted a Provisional visa. In September 2007, the applicant arrived in Australia holding that Provisional visa and he and his wife began living together.

3    In 2008, the applicant commenced employment as a relief or casual teacher employed by the Department of Education WA and as a tutor employed in the private sector. His wife changed her surname to his name in May 2008 and, in September 2008, his wife acquired Australian citizenship. In October 2008, their daughter was born. In January 2010, their son was born. In June 2010, the applicant was issued with an Indian passport at Canberra. In August 2013, the applicant’s children were issued with Australian passports.

4    From March 2011, the applicant had several brushes with the law prior to a child sex offence conviction. In September 2014, a delegate of the Minister refused to grant the applicant a Partner visa. In October 2014, he applied to the Tribunal for review of the refusal. He was then granted a bridging visa.

5    In October 2014, the applicant indecently dealt with a child under the age of 13 years, contrary to s 320(4) of the Criminal Code Act Compilation Act 1913 (WA). The applicant was then aged 47 years. That year he ceased the casual employment referred to above. In April 2015, a search warrant was executed on the applicant’s home and he was interviewed by detectives in relation to the child sex offence and arrested. His bridging visa was cancelled and he entered immigration detention.

6    The applicant was charged with the child sex offence in September 2015 and an indictment was filed in the District Court of Western Australia. December 2015 was the last time the applicant saw his son and daughter. He pleaded guilty to the child sex offence and was convicted in February 2016 and sentenced to an 11 month intensive supervision order to run from that date.

7    In December 2016, the Department of Immigration and Border Protection gave the applicant notice that consideration was being given to refusing, under s 501(1) of the Migration Act, his application for a Partner visa. He was given 28 days to provide information as to why such a refusal should not be made. The applicant made written submissions on 8 February 2017 as to why he should be granted a Partner visa, although nothing was supplied from the applicant’s wife. In April 2017, the applicant was invited to comment on the sentencing remarks made in the District Court. On 2 August 2017, a delegate of the Minister, acting under s 501(1) of the Migration Act, refused to grant the applicant a Partner visa.

8    He was duly informed and applied to the Tribunal for review of the delegate’s decision. Following a hearing in October 2017, the Tribunal affirmed the delegate’s s 501 refusal decision. The applicant seeks review of that decision in this Court.

STATUTORY PROVISIONS

9    Section 501 of the Migration Act relevantly provides as follows:

501    Refusal or cancellation of visa on character grounds

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).

…

Decision of Minister—natural justice does not apply

(3)    The Minister may:

(a)    refuse to grant a visa to a person; or

(b)    cancel a visa that has been granted to a person;

if:

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

(d)    the Minister is satisfied that the refusal or cancellation is in the national interest.

(3A)    The Minister must cancel a visa that has been granted to a person if:

(a)    the Minister is satisfied that the person does not pass the character test because of the operation of:

(i)    paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or

(ii)    paragraph (6)(e) (sexually based offences involving a child); and

(b)    the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.

(3B)    Subsection (3A) does not limit subsections (2) and (3).

(4)    The power under subsection (3) may only be exercised by the Minister personally.

(5)    The rules of natural justice, and the code of procedure set out in Subdivision AB of Division 3 of Part 2, do not apply to a decision under subsection (3) or (3A).

Character test

(6)    For the purposes of this section, a person does not pass the character test if:

(a)    the person has a substantial criminal record (as defined by subsection (7)); or

…

(d)    in the event the person were allowed to enter or to remain in Australia, there is a risk that the person would:

(i)    engage in criminal conduct in Australia; or

(ii)    harass, molest, intimidate or stalk another person in Australia; or

(iii)    vilify a segment of the Australian community; or

(iv)    incite discord in the Australian community or in a segment of that community; or

(v)    represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment, or in any other way; or

(e)    a court in Australia or a foreign country has:

(i)    convicted the person of one or more sexually based offences involving a child; or

(ii)    found the person guilty of such an offence, or found a charge against the person proved for such an offence, even if the person was discharged without a conviction; or

…

…

Definitions

(12)    In this section:

court includes a court martial or similar military tribunal.

imprisonment includes any form of punitive detention in a facility or institution.

sentence includes any form of determination of the punishment for an offence.

Note 1:    Visa is defined by section 5 and includes, but is not limited to, a protection visa.

Note 2:    For notification of decisions under subsection (1) or (2), see section 501G.

Note 3:    For notification of decisions under subsection (3), see section 501C.

10    Section 36(2) of the Migration Act, with which a comparison is made below, provides:

36    Protection visas–criteria provided for by this Act

…

(2)    A criterion for a protection visa is that the applicant for the visa is:

(a)    a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

(aa)    a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

(b)    a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i)    is mentioned in paragraph (a); and

(ii)    holds a protection visa of the same class as that applied for by the applicant; or

(c)    a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i)    is mentioned in paragraph (aa); and

(ii)    holds a protection visa of the same class as that applied for by the applicant.

…

11    By s 499 of the Migration Act the Minister may make a direction to persons having functions or powers under an Act as to their performance. On 22 December 2014, the Minister issued, pursuant to s 499 of the Migration Act, Direction No. 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA. Relevantly to this application, the Direction provides:

6. Preamble

6.1    Objectives

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

(2)    Under subsection 501(1) of the Act, a non-citizen may be refused a visa if the non-citizen does not satisfy the decision-maker that they pass the character test. A non-citizen may have their visa cancelled under subsection 501(2) if the decision-maker reasonably suspects that the non-citizen does not pass the character test, and the non-citizen does not satisfy the decision-maker that they pass the character test. Where the discretion to refuse to grant or to cancel a visa is enlivened, the decision-maker must consider whether to exercise the discretion to refuse or cancel the visa given the specific circumstances of the case.

(3)    Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had his or her visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the discretion to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case.

(4)    The purpose of this Direction is to guide decision-makers performing functions or exercising powers under section 501 of the Act, to refuse to grant a visa or to cancel a visa of a non-citizen who does not satisfy the decision-maker that the non-citizen passes the character test, or to revoke a mandatory cancellation under section 501CA of the Act. Under section 499(2A) of the Act, such decision-makers must comply with a direction made under section 499.

6.2    General Guidance

(1)    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 below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.

(2)    In order to effectively protect the Australian community from harm, and to maintain integrity and public confidence in the character assessment process, decisions about whether a non-citizen’s visa should be refused or cancelled under section 501 should be made in a timely manner once a decision-maker is satisfied that a non-citizen does not pass the character test. Timely decisions are also beneficial to the client in providing certainty about their future.

(3)    The principles 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, or whether to revoke a mandatory cancellation under section 501CA. The relevant factors that must be considered in making a decision under section 501 of the Act are identified in Part A and Part B, while factors that must be considered in making a revocation decision are identified in Part C of this Direction.

…

7. How to exercise the discretion

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

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

b)    must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.

8. Taking the relevant considerations into account

(1)    Decision-makers must take into account the primary and other considerations relevant to the individual case. There are differing considerations depending on whether a delegate is considering whether to refuse to grant a visa to a visa applicant, cancel the visa of a visa holder, or revoke the mandatory cancellation of a visa. These different considerations are articulated in Parts A, B and C. Separating the considerations for visa holders and visa applicants recognises that non-citizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa applicant should have no expectation that a visa application will be approved.

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

(3)    Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.

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

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

…

9. Primary considerations – visa holders

(1)    In deciding whether to cancel 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.

(Emphasis added.)

…

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.

(Emphasis added.)

11.1    Protection of the Australian community

(1)    When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. There is a low tolerance for visa applicants who have previously engaged in criminal or other serious conduct. Decision-makers should also give consideration to:

a)    The nature and seriousness of the non-citizen’s conduct to date; and

b)    The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

11.1.1    The nature and seriousness of the conduct

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

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

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

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

d)    The principle that any conduct that forms the basis for a finding that a non-citizen does not pass a subjective limb of the character test is or is not of good character under section 501(6)(c), is considered to be serious;

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

f)    The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;

g)    The cumulative effect of repeated offending;

h)    Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;

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

11.1.2    The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct

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

(2)    In addition, decision-makers should have regard to the principle that 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.

(3)    In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:

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

b)    The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:

i.     information and evidence from independent and authoritative sources on the likelihood of the non-citizen re-offending; and

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

iii.    the duration of the intended stay in Australia.

(4)    Decision-makers should consider the risk of harm in the context of the purpose of the intended stay, and the type of visa being applied for, including whether there are strong or compassionate reasons for granting a short-stay visa.

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.

11.3    Expectations of the Australian Community

(1)    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.

12. Other considerations – visa applicants

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

a)    International non-refoulement obligations;

b)    Impact on family members;

c)    Impact on victims;

d)    Impact on Australian business interests.

12.1    International non-refoulement obligations

(1)    A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations to non-citizens in Australia under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention); the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT); and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act reflects Australia’s interpretation of those obligations and, where relevant, decision-makers should follow the tests enunciated in the Act.

(2)    The existence of a non-refoulement obligation does not preclude refusal of a non-citizen’s visa application in Australia. This is because Australia will not remove a non-citizen, as a consequence of the refusal of their visa application, to the country in respect of which the non-refoulement obligation exists.

(3)    Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in response to a notice of intention to consider refusal of their visa under s501 of the Act, or can be clear from the facts of the case (such as where the non-citizen is an applicant for a protection visa).

(4)    Where a non-citizen makes claims which may give rise to international non-refoulement obligations and that non-citizen is able to make a valid application for another visa, it is unnecessary to determine whether non-refoulement obligations are owed to the non-citizen for the purposes of determining whether their visa application should be refused.

(5)    If, however, the visa application being considered for refusal is a Protection visa application, the person will be prevented from making an application for another visa, other than a Bridging R (Class WR) visa (section 501E of the Act and regulation 2.l2A of the Regulations refers). The person will also be prevented by section 48A of the Act from making a further application for a Protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them – sections 48A and 48B of the Act refer).

(6)    In these circumstances, decision-makers should seek an assessment of Australia’s international treaty obligations. Any non-refoulement obligation should be weighed carefully against the seriousness of the non-citizen’s criminal offending or other serious conduct in deciding whether or not the non-citizen should be granted a visa. Given that Australia will not return a person to their country of origin if to do so would be inconsistent with its international non-refoulement obligations, the operation of sections 189 and 196 of the Act means that, if the person’s Protection visa application were refused, they would face the prospect of indefinite immigration detention.

12.2    Impact on family members

(1)    Impact of visa refusal on immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely;

12.3    Impact on victims

(1)    Impact of a decision to grant a visa on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where that information is available and can be disclosed to the non-citizen being considered for visa refusal;

12.4    Impact on Australian business interests

(1)    Impact on Australian business interests if the non-citizen’s visa application is refused, noting that an employment link would generally only be given weight where visa refusal would significantly compromise the delivery of a major project or delivery of an important service in Australia.

IN THE TRIBUNAL

12    The Tribunal dealt with the question of whether the applicant passed the character test, which it rejected, and then addressed the question of whether or not the Tribunal should refuse the applicant’s Partner visa as a matter of discretion. The Tribunal examined the preamble to the Direction and had regard to the guidance in paras 7 and 8 of the Direction. The Tribunal then specifically considered under the heading of ‘Primary Considerations’:

(i)    Protection of the Australian community from criminal or other serious conduct;

(ii)    The best interests of the minor children; and

(iii)    The expectations of the Australian community.

13    The Tribunal then considered other matters, including international non-refoulement obligations and the impact on family members, before concluding that significant weight should be attached to the nature of the crime and that there was an unacceptable risk that the applicant may engage in further criminal conduct if he remained in Australia, exposing the Australian community to risk.

14    In his favour, the Tribunal took into account the negative consequences of his deportation on his minor children and wife, observing that those considerations did not, however, outweigh the two primary considerations detailed above in relation to safety and expectations of the Australian community. The Tribunal said (at [113]):

While life will be inevitably difficult initially for [the applicant’s] wife and children, this does not outweigh the Tribunal’s concerns for the safety of the Australian community arising from [the applicant’s] serious sexual offending against a minor and the risk of his offending in the future. On balance, the primary considerations referred to above, which are generally to be given more weight, outweigh these other considerations.

GROUNDS OF REVIEW

15    The grounds of review under the amended notice of ‘appeal’ are as follows:

1.    The Tribunal misconstrued or misapplied paragraph 11(1) of Ministerial Direction 65 by treating the mandatory primary considerations of ‘the protection of the Australian community from criminal or other serious conduct’ and/or ‘the expectation of the Australian community’ as prevailing unless ‘outweighed’ by other considerations, and not in fact treating the ‘best interests of [the applicant’s] minor children in Australia’ as an independent primary consideration.

2.    The Tribunal, in finding that ‘taken at their highest, do not reach the level that they would constitute an objectively well-founded fear of persecution if he were returned to India now, or in the reasonably foreseeable future’, misconstrued or misapplied its discretion under subsection 501(1) of the Migration Act which embraces consideration of a broader nature and quality of risk than is captured within subsection 36(2)(a) of the [Migration] Act.

3.    The Tribunal, having rejected [the applicant’s] claims as incapable of engaging Australia non-refoulement obligations under the Refugees Convention by reasoning that ‘[t]here is absolutely nothing before the Tribunal that would suggest that the Indian state would tolerate, condone or fail to control circumstances where [the applicant] might face physical harm or degradation or widespread discrimination’, failed to complete the analysis by giving consideration to Australia’s non-refoulement obligations under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and other instruments which did not require the involvement or acquiescence of the Indian Government.

Ground 1

16    In his written submissions, the applicant puts the issue raised by ground 1 of the application as follows:

Did the Tribunal in fact treat the best interests of the children as a primary consideration, or were considerations of protection of the Australian community and/or the expectations of the Australian community set up as prevailing unless outweighed?

17    As advanced, the argument was that, although the Tribunal correctly described the ‘best interests of minor children in Australia’ as one of the three ‘primary considerations’, in fact, the approach taken was inconsistent with the Direction. The applicant relies on Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133, where Branson, North and Stone JJ identified (at [34]) that there was a failure to give proper, genuine and realistic consideration to the mandatory primary consideration of the best interests of the child or children. I will refer to this further below.

18    The applicant points to [105]-[106] of the Tribunal’s reasons, where the following was said:

105.    The Tribunal acknowledges that [the applicant’s] wife will be in a difficult position should [the applicant] be deported. She will be the sole parent of two young children and will be solely responsible for providing for them. She will inevitably struggle.

106.    On the evidence before it, the Tribunal finds that this factor weighs in favour of the Tribunal granting [the applicant] his [Partner] visa. It does not, however, outweigh the two primary considerations detailed above in relation to the safety and expectations of the Australian community. In that regard, the Tribunal notes that [the applicant’s] wife does have the option of working and there is nothing to suggest that she doesn’t intend to do so in the future. She also has the support of other family here, including at least one sister and brother. While life will inevitably be difficult initially for her and her children, any hardship cannot outweigh the very serious concerns for the safety of the Australian community arising from [the applicant’s] very serious sexual offending against a minor and the risk of future offending.

(Emphasis added.)

19    The applicant points to the fact that, as noted, cl 11(1) of the Direction prescribes not two, but three primary considerations, namely:

(i)    Protection of the Australian community from criminal or other serious conduct;

(ii)    The best interests of minor children in Australian; and

(iii)    Expectations of the Australian Community.

20    The applicant also points to [113] of the Tribunal’s reasons, where the following appears:

There are considerations that weigh in [the applicant’s] favour. These include the negative consequences of his deportation on his minor children and wife. These considerations do not, however, outweigh the two primary considerations detailed above in relation to the safety and expectations of the Australian community. While life will inevitably be difficult initially for [the applicant’s] wife and children, this does not outweigh the Tribunal’s concerns for the safety of the Australian community arising from [the applicant’s] serious sexual offending against a minor and the risk of his offending in the future. On balance, the primary considerations referred to above, which should generally be given more weight, outweigh these other considerations.

(Emphasis added.)

21    The applicant says that while the Tribunal made an implicit finding about the best interests of the applicant’s two children, it did not in fact treat it as a primary consideration. Rather, the Tribunal treated the wife and children compendiously as if they were a subsidiary consideration under cl 12.2 of the Direction concerning the ‘Impact on family members’.

22    Reliance is also placed on [57] and [74] of the Tribunal’s reasons, where the following was said:

57.    At the hearing, [the applicant] again stressed that he would not re-offend and indicated that he was sorry for what had happened. He highlighted the numerous rehabilitation programs he had taken in prison and the Tribunal has noted the reference letters provided by his wife and a former employee. The Tribunal also heard evidence from [the applicant’s] wife and brother in law - both of whom described [the applicant] as a good husband and father who was under a lot of stress when he did what he did what he did to the young boy the subject of [the applicant’s] sexual offence conviction.

…

74.    The Tribunal agrees with this assessment [by the Minister’s delegate]. On the evidence presented, the Tribunal accepts that it is in the best interests of [the applicant’s] children for the decision to refuse [the applicant] a [Partner] visa to be set aside. This conclusion weighs in [the applicant’s] favour. It is noted, however, that pursuant to paragraph 8(5) of Direction No 65, one or more of the primary considerations may outweigh other primary considerations. Here, the Tribunal finds that although the best interests of [the applicant’s] children is indeed a consideration that weighs in favour of setting aside the decision to refuse [the applicant] a [Partner] visa, this consideration is outweighed by the other primary considerations. While it is certainly the case that [the applicant’s] children will suffer to some extent if their father returns to India, there is no evidence that they will not be able to maintain contact with him if this happens. Nor is it evident that their mother will not be able to fulfil necessary parenting duties. Overall, and importantly, any disruption or negative consequences here do not outweigh the concerns raised above by the Tribunal about the risk of continuing sexual and psychological harm to the Australian community (in particular vulnerable children) if [the applicant] is granted a visa and allowed to stay in the Australian community.

(Emphasis added.)

23    There is no mention at [74] of the Tribunal’s decision of the evidence of the applicant being a ‘good father’, noted elsewhere by the Tribunal (for example, at [57]). That was despite cl 11.2(4)(b) of the Direction specifically requiring the Tribunal to consider under the ‘best interests of minor children’, ‘the extent to which the non-citizen is likely to play a positive parent role in the future (taking into account the length of time until the child turns 18)’.

24    The applicant complains that, as in Wan, the Tribunal has effectively treated matters touching on the interests of the children as ‘subsidiary matters’, indicating that the ‘best interests of children’ were not in truth treated as primary considerations.

25    The applicant says that the failure to advert to the fact that the applicant’s children were both Australian citizens is also an omission of significance in the context of considering the children’s best interests. The applicant relies on Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608, where Burchett J said (at 614):

The fact that the children’s citizenship was not mentioned does not necessarily mean that their best interests were not treated as a primary consideration; cf Teoh at CLR 292. But it does mean, when one looks at the context of the reasons, that a most relevant aspect of the children’s position received no consideration. And when neither the Convention nor the children’s citizenship is mentioned, and after a lengthy discussion of other considerations the situation of the younger three children is dismissed with the almost perfunctory curtness I have quoted, the conclusion must be that their interests were not treated as a primary consideration. …

(Emphasis added.)

26    Accordingly, as in Vaitaiki, the applicant says that, although the Tribunal purported to act on the basis that the best interests of the applicant’s children were a primary consideration before it, the Tribunal did not give proper, genuine and realistic consideration to the children’s best interests.

27    In consideration of this ground, it must be remembered that the reasons of an administrative decision-maker are intended to inform and not be scrutinised by an over-zealous eye attuned to error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 per Brennan CJ, Toohey, McHugh and Gummow JJ (at 272). Consistent with these requirements, it is important not to simply examine a summary conclusion (here at [113]) without also taking into account the process of analysis in the course of quite extensive reasons.

28    In Wan (at [31]), the Court said:

Even if we are wrong in concluding that the Tribunal did not identify what the best interests of the children indicated that it should decide with respect to Mr Wan’s application for a visa, the conclusion is, in our view, inescapable that the Tribunal did not treat the best interests of the children as “a primary consideration” in its determination. First, the Tribunal does not anywhere in its written reasons for decision describe the best interests of the children as “a primary consideration”. The Tribunal’s reference to the ministerial direction is not, in our view, sufficient to negate the significance of this omission as the Tribunal also refers to a ministerial direction and to a migration series instruction which do not suggest that the best interests of affected children are a primary consideration. Secondly, the Tribunal in [34] of its reasons for decision … appears to describe matters touching on the interests of the children as “subsidiary matters”. Moreover, in the same paragraph the Tribunal finds that matters touching on the interests of the children do not “outweigh the strength of community expectations”. That is, the Tribunal does not in fact treat the best interests of the children as a primary consideration but rather treats considerations touching on community expectations as considerations which should prevail unless “outweighed” by other considerations. As Mason CJ and Deane JJ pointed out in Teoh at 292:

“A decision-maker with an eye to the principle enshrined in the Convention would be looking to the best interests of the children as a primary consideration, asking whether the force of any other consideration outweighed it.”

29    The final consideration in Wan is in marked contrast to this case when there Tribunal has clearly identified the best interests of the children as a primary consideration.

30    For example, [36] and [37] of the Tribunal’s reasons reveal the process of reasoning:

36.    Paragraph 11(1) of Direction No. 65 sets out the following three “primary considerations” that must be taken into account in deciding whether to refuse a person’s visa:

(i)    Protection of the Australian community from criminal or other serious conduct;

(ii)    The best interests of minor children in Australia; and

(iii)    Expectations of the Australian community.

37.    Each of the three primary considerations is addressed in relation to [the applicant] below.

31    At [74], the Tribunal said:

Here, the Tribunal finds that although the best interests of the applicant’s children is indeed a consideration that weighs in favour of setting aside the decision to refuse the applicant a [Partner] visa, this is outweighed by the other primary considerations.

(Emphasis added.)

32    There is no reason to conclude in this case that by reference to ‘outweigh’ the Tribunal was treating the best interests of the children as anything other than a primary consideration. On a fair reading, the reference to ‘other’ expressly includes the interests of the children as a primary consideration.

33    Consistently with this, the summary conclusion (at [113]) of the Tribunal’s decision reflects the finding (at [74]), which in substance was that of the three primary considerations, the consideration of the best interests of the child was, in the circumstances of the particular case, outweighed by the other two primary considerations.

34    As to the fact that the children were Australian citizens, this is expressly recorded in the delegate’s Statement of Reasons for Refusal (at [15]), which is set out (at [73]) of the Tribunal’s decision and is a fact expressly agreed to by the Tribunal. The children’s citizenship status is also repeated again in the Tribunal’s decision (at [100]), citing the Minister’s Statement of Facts, Issues and Contentions.

35    Having cited the matter twice, there is no reason to think that the Tribunal failed to take this issue into account.

36    Ground 1 cannot succeed.

Ground 2

37    In written submissions, the applicant expresses ground 2 as follows:

Did the Tribunal misunderstand its discretion under s 501(1) when directing itself that the applicant had to establish ‘an objectively well-founded fear of persecution, if he were returned to India now, or in the reasonably foreseeable future’?

38    The applicant points to [96] of the Tribunal’s reasons, which is in these terms:

The Tribunal, therefore, finds that [the applicant’s] claims that he will face harm in India, taken at their highest, do not reach the level that they would constitute an objectively well-founded fear of persecution if he were returned to India now, or in the reasonably foreseeable future.

39    The objection for the applicant is that the statement set out from [96] embodies a misunderstanding of the nature of discretion.

40    The applicant relies upon BCR16 v Minister for Immigration and Border Protection (2017) 248 FCR 456, where Bromberg and Mortimer JJ said (at [48]-[49]):

48        We also accept the appellant’s submissions that the circumstances in which consideration of non-refoulement occurs are quite different as between an exercise of the revocation power in s 501CA(4) and an exercise of power under s 65 of the Migration Act. The revocation power is discretionary, and the risk of significant harm to the appellant in Lebanon (whether for a Convention reason or otherwise, both may be relevant) would be a matter to be weighed in the balance by the Assistant Minister. That returning an individual to a country where there is a real possibility of significant harm, or a real chance of persecution, may contravene Australia’s non-refoulement obligations, is also a matter to be weighed in the balance of deciding whether to revoke a mandatory visa cancellation. Its place in an exercise of discretionary power is quite distinct, and is capable of playing a quite different role in the exercise of the statutory discretion.

49        In contrast, both in terms of text and of authority, s 65 involves a qualitatively different exercise. In the task required by s 65, the Minister or his delegates are to be “satisfied” of certain criteria, some of which, if considered, may involve assessing the risk of harm to a visa applicant if returned to her or his country of nationality. The delegate, or the Minister, may or may not be “satisfied” to the requisite level about the existence of any such risk, or about its nature or quality. Non-satisfaction requires refusal of the visa. In the discretionary exercise for which s 501CA(4) calls, as we point out elsewhere in these reasons, the nature and quality of the risks which can permissibly be considered are much broader, and are not restricted to the risks comprehended by s 36(2)(a) and (aa). In the process for the exercise of the s 501CA(4) discretion, the Minister or his delegate is able to give greater weight to a small risk, if on the material the decision-maker reasonably determines that is justified. Such is the nature of a discretionary power. It is quite distinct from the task in s 65.

(Emphasis added.)

41    The applicant argues that:

(a)    although the Tribunal referred to BCR16, the applicant complains that the Tribunal misunderstood its effect; and

(b)    there is no meaningful distinction for present purposes between the discretion to revoke a cancellation under s 501CA(4) and the discretion to refuse under s 501(1) of the Migration Act.

42    Again, it is necessary to examine other passages in the Tribunal’s reasons in order to assess this ground. In particular, I refer to [84], [90]-[92] and [96] which are as follows:

84.    Until recently, the Tribunal would have found that, because of his ability to apply for a Protection visa, the Tribunal was not required to assess any non-refoulement obligations owed to [the applicant]. It was generally accepted that because Direction No. 65 specifically states that it is not necessary to determine a non-refoulement issue in circumstances where an applicant can apply for a Protection visa, the Tribunal would normally rely on any non-refoulement assessment being made by another body specifically charged with determining the validity of a Protection visa claim.

…

90.    [The applicant] claims that he holds a well-founded fear of persecution from members of his local community in India on the basis of his child sex offences criminal conviction. In effect, he claims that his life might be in danger because India has a “very strict culture” (G11 at 72). He states that everyone in his family and local community knows “what he did”. This, he states, has been shameful for him and his family and will mean that he will never get job in India. In relation to persecution arising from his child sex offences, the Tribunal has almost no evidence before it in relation to whether [the applicant] will actually face harm if returned to India. Nor could [the applicant] explain why he needed to move back to his particular region – rather than elsewhere in India.

91.    The Tribunal accepts that [the applicant’s] criminal conviction is a matter of public record in his local community. The question, however, is whether as a result of this, [the applicant] will face harm of the sort envisaged in Direction No. 65. In this regard, the Tribunal can only rely on the evidence before it.

92.    The Tribunal notes that persecution by private individuals or groups does not amount to persecution tor the relevant purposes unless the State either encourages it or appears to be powerless to prevent that private persecution.

…

96.    The Tribunal, therefore, finds that [the applicant’s] claims that he will face harm in India, taken at their highest, do not reach the level that they would constitute an objectively well-founded fear of persecution if he were returned to India now, or in the reasonably foreseeable future.

(Emphasis added.)

43    It is apparent from these passages that the Tribunal held that it could not avoid assessment of non-refoulement obligations by reason of the applicant not applying for a protection visa, but a Partner visa. The Tribunal proceeded to make a factual inquiry as to whether or not the applicant faced a real possibility of significant harm if returned to India as required by BCR16. In that regard, the applicant had the onus of placing material before the Tribunal to satisfy it that he faced a real possibility of significant harm if he returned to India: Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 per Heerey J (at 348); SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ (at [40]). In that regard, the applicant placed little material before the Tribunal in discharge of this obligation.

44    A non-refoulement obligation under any treaty to which Australia is a party requires an applicant to have more than a subjective fear. There must also be an objective justification or foundation for the fear: AYY15 v Minister for Immigration and Border Protection [2018] FCA 130 per Steward J (at [16] and the authorities therein cited). On the material before the Tribunal, it concluded that he did not have an ‘objectively well-founded fear of persecution’ (emphasis added). Consistently with any requirement in BCR16, this is a finding that there is no real possibility of significant harm on return to India. There is no reason to think that the Tribunal misunderstood BCR16 or misunderstood its discretion.

45    Ground 2 cannot succeed.

Ground 3

46    Ground 3 has been expressed as follows by the applicant:

Did the Tribunal fail to exercise jurisdiction or deny procedural fairness in not turning its mind to Australia’s international ‘non-refoulement’ obligations arising under treaties other than the Refugee Convention?

47    Succinctly stated, the applicant complains that the Tribunal did not address at all such obligations under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the International Covenant on Civil and Political Rights and ‘others’. This is apparent, the applicant says, from the fact that the Tribunal did not have regard to Australia’s international ‘complementary protection’ obligations under the non-refugee treaties because of what is said at [95], where the Tribunal found:

There is absolutely nothing before the Tribunal that would suggest that the Indian state would tolerate, condone or fail to control circumstances where [the applicant] might face physical harm or degradation or widespread discrimination to the extent that such conduct could either amount to a real chance of serious harm or a real risk of significant harm being occasioned to [the applicant]. Indeed, the Country Information available to the Tribunal satisfies the Tribunal that the Indian State provides an adequate level of state protection for the purposes of s 5J(2) of the Migration Act, as set out in s 5LA of the Migration Act (Department of Foreign Affairs and Trade Country Information Report: India, 15 July 2015).

48    Similarly, the applicant says that other paragraphs, including [90], [92] and [96], evidence that the Tribunal specifically directed itself to ‘persecution’.

49    The relevant distinction, the applicant says, is that the international non-refoulement obligations captured within the complementary protection umbrella do not require the involvement of the State parties, which is a requirement only of the Refugee Convention protection.

50    Further, the applicant complains, the Tribunal has misunderstood that s 501(1) of the Migration Act requires consideration of Australia’s international non-refoulement obligations. What appears at [90] (quoted above), according to the applicant, is that the Tribunal implicitly imposed a condition that there be evidence that the applicant could not relocate to another area of India upon repatriation. That is an express requirement of the Migration Act definition of ‘refugee’ under s 5J, but is not an express requirement under Australia’s international non-refoulement obligations under either art 1A of the Refugee Convention or the ‘complementary protection’ treaties. The applicant contends that it is not the domestic incorporation of Australia’s non-refoulement obligations under the Migration Act, which para 12(1)(a) of the Direction points to, but rather, the international non-refoulement obligations.

51    While there well may be something in the latter argument at a technical level, in the circumstances of this particular application, the argument falls away by reason of the factual findings made by the Tribunal. Again, it is to be borne in mind that the applicant bears the onus of placing material before the Tribunal to satisfy it that the applicant did indeed face a real possibility of significant harm: Selvadurai and SZBEL (discussed above (at [43])). There was very limited material placed before the Tribunal and on the basis of that material, a fair reading of [96] in context is that the Tribunal reached a finding of fact that he did not have an ‘objectively well-founded fear of persecution’ from anybody on return to India.

52    The finding that there was no risk of persecution on the material before the Tribunal is sufficient to dispose of the argument that the Tribunal did not have to be satisfied of involvement of the State. That finding was entirely open on the limited evidence before the Tribunal and on the applicant’s case, as put to the Tribunal, and as clearly considered by it in the paragraphs to which I have referred.

53    In my view, ground 3 cannot succeed.

CONCLUSION

54    In those circumstances, the application must be dismissed with costs.

Associate:

Dated:    21 June 2018