FEDERAL COURT OF AUSTRALIA

Afu v Minister for Home Affairs [2018] FCA 1311

ORDERS

THE COURT ORDERS THAT:

1.    The applicant be granted an extension of time in which to file an originating application for review of a migration decision to the date upon which an originating application was filed on 27 February 2018.

2.    The draft amended originating application filed on 15 June 2018 be treated as an amended originating application.

3.    The amended originating application be dismissed.

4.    The applicant pay the first respondent’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 and the grant of an extension of time

1    This is an application for judicial review of a decision of the second respondent, the Administrative Appeals Tribunal. The applicant requires the grant of an extension of time to bring this application.

2    On 8 November 2017, the Tribunal affirmed a decision of a delegate of the first respondent, the Minister for Home Affairs, not to revoke the mandatory cancellation of the applicant’s visa under s 501(3A) of the Migration Act 1958 (Cth). While the Minister quite properly does not suggest that there is any prejudice in granting the extension of time, nor contend that there is lacking any reasonable explanation for the delay in filing the application for judicial review in this Court, he contends that there is insufficient merit in the applicant’s case to justify the grant of the extension of time.

3    The merit threshold for the grant of an extension of time is not especially onerous. It will seldom be in the interests of justice to grant an extension of time where there is little or no prospect of success, not least because of the additional resources that may need to be expended. However, unless the grounds are hopeless on an impressionistic reading of them that is without the benefit of detailed argument, such that it can be confidently concluded that the grounds must fail, the better approach may be to grant the extension of time and then consider the grounds properly and with the benefit of full argument: see MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; 242 FCR 585 at [62] and [66]. In this case, an impressionistic approach to the proposed grounds of review does not warrant the epithet of “hopeless”. The Court has had the benefit of full argument on those grounds, such that there is no question of any additional resources being expended by the grant of an extension of time. It follows that the appropriate course is to grant the extension of time and consider the grounds advanced in full.

4    It is appropriate to acknowledge at the outset the considerable assistance given to the Court by pro bono counsel for the applicant.

Background and procedural history

5    The applicant, Mr Maka Afu, is a citizen of Tonga. He arrived in Australia with his parents and three siblings when he was an adolescent (the materials are inconsistent as to whether he was 12 or 13 at the time). On 1 September 1994, he was granted permanent residency in Australia by way of a Class BF Transitional (Permanent) visa. He is now aged 49. The applicant has three children residing in Australia and a number of his close and extended family members also reside in Australia.

6    The applicant has a lengthy history of criminal offending in Australia spanning from 1986 to the present. That history includes a number of violent criminal offences and related periods of imprisonment. Following his first adult conviction and sentence for a violent offence in 1989, the applicant was warned by the then Department of Immigration, Local Government and Ethnic Affairs that his conviction rendered him liable for deportation from Australia pursuant to the Migration Act, but that deportation would not be ordered on that occasion.

7    After a number of convictions for which he received non-gaol-based sentences or suspended sentences, on 24 November 2005, the applicant was convicted of maliciously inflicting grievous bodily harm and sentenced to four years’ imprisonment. On 5 December 2007, the then Department of Immigration and Citizenship advised the applicant that his visa was liable for cancellation on character grounds, but that, again, a delegate of the Minister had decided not to cancel the applicant’s visa at that time. The applicant was explicitly made aware on that occasion that this was his second warning about possible visa cancellation, and that his history of violence, which had thus far resulted in one death, required personal reform.

8    On 7 October 2015, the Minister issued to the applicant a notice of intention to consider the cancellation of his visa pursuant to s 501(2) of the Migration Act on character grounds. The materials before the Court are not explicit as to what triggered the issue of this notice, but it seems likely that it was the imposition of a term of imprisonment upon the applicant in 2014 for contravening an apprehended violence order in relation to the mother of his children. In any event, in response to the notice, the applicant completed a personal details form on 15 October 2015. He also provided a letter of support from his son dated several weeks earlier.

9    On 20 May 2016, the applicant was convicted of a string of offences, including assault occasioning actual bodily harm, and was sentenced to nine months’ imprisonment.

10    On 25 October 2016, the Minister sent a notice to the applicant advising him that his visa had been mandatorily cancelled pursuant to s 501(3A) of the Migration Act, and invited the applicant to make representations about revocation of the decision to cancel his visa. The applicant made such representations on or about 7 November 2016 and requested that the Minister revoke the cancellation of his visa.

Before the delegate

11    The applicant places some reliance on a comparison between the approach of the delegate and that of the Tribunal. It is therefore necessary to provide more detail than usual on the approach taken by the delegate.

12    On 6 July 2017, the applicant was notified that a delegate of the Minister had decided, under s 501CA(4) of the Migration Act, not to revoke the original decision to cancel the applicant’s visa. The delegate’s reasons for that decision outlined the nature of the representations that had been received from the applicant, including as to the extent of his close family ties in Australia and his willingness to address his criminal behaviour despite admittedly not having taken prior warnings seriously. In particular, the delegate:

(1)    considered that the applicant had a record of repeated and serious criminal offending, including of a violent nature, and noted the circumstances from which his convictions arose, which had on multiple occasions resulted in serious injuries to victims and, on one occasion, death;

(2)    considered that there was a serious risk to the Australian community should the applicant reoffend and/or fail to address his alcohol abuse issues; and

(3)    considered that it was in the best interests of the applicant’s two young daughters that the mandatory visa cancellation decision be revoked, and recognised the strength of the ties the applicant had formed in Australia and the potential difficulties the applicant may face if removed from Australia to Tonga.

13    However, the delegate found that the Australian community would expect that the applicant should not hold a visa, given the seriousness of his offences. The delegate found that the unacceptable risk of harm to the Australian community posed by the applicant outweighed the best interests of his children as a primary consideration, as well as the other countervailing considerations that were assessed.

14    On 11 July 2017, the applicant applied to the Tribunal for review of the delegate’s decision.

Before the Tribunal

15    In light of the criticisms made by the applicant in this judicial review application, it is necessary to set out, in some length and detail, the Tribunal’s decision-making process and the conclusions that were reached.

Overview

16    In considering whether it should exercise the power in s 501CA(4) in favour of revoking the mandatory cancellation of the applicant’s visa, the Tribunal noted that it was tasked with an assessment and evaluation of the factors for and against revoking the cancellation, and was bound to comply with Direction No. 65 – Migration Act 1958 – Direction under section 499 - Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (Direction 65). As such, the Tribunal noted that it was bound to take into account the following primary considerations:

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

(2)    the best interests of minor children in Australia; and

(3)    the expectations of the Australian community.

17    The Tribunal also noted that it was bound to take into account other considerations insofar as they were relevant, including (but not limited to):

(1)    international non-refoulement obligations;

(2)    strength, nature and duration of ties to Australia;

(3)    impact on Australian business interests;

(4)    impact on victims; and

(5)    the extent of the impediments the applicant would face if he was removed from Australia.

18    The Tribunal relevantly noted the following at [14]:

Occasionally, the other considerations can be so strong that they can amount to equal importance with the primary considerations. Unless that is the case, however, the primary considerations will otherwise outweigh the other considerations but the other considerations are certainly not unimportant.

19    The Tribunal considered the applicant’s criminal offending at length, including his violent offending involving instances of domestic violence and assaults on strangers. The Tribunal noted the two warnings that the applicant had received from the Minister about possible visa cancellation, which the applicant did not deny that he had been aware of. The Tribunal noted the evidence in support of the applicant provided by his children, as well as the applicant’s own evidence regarding his relationship with his family, the circumstances of his offending and his strong desire to remain in Australia.

20    The Tribunal considered the submissions of the Minister that the applicant had had good intentions on a number of occasions, but was unable to maintain those good intentions despite having taken multiple rehabilitative courses since the beginning of his offending. The Minister submitted that the Tribunal should have less regard than it normally might to the impact [the Tribunal used the word “influence”] of the decision on the applicant’s two minor children, due to the limited contact that the applicant had had with them in the last five years and because he was not a good role model. The Tribunal also considered the Minister’s submissions as to the violent nature of the applicant’s offences over a number of years, and his receipt of two formal warnings as to possible visa cancellation, as well as a further notice of intention in 2015 that should be taken as a third warning.

21    In its consideration of the competing submissions, the Tribunal noted that the applicant failed the character test in s 501(6) of the Migration Act and, as such, the determinative issue was whether there was “another reason why the cancellation should be revoked”.

22    The Tribunal first considered each of the primary considerations at length, and relevantly concluded the following.

Protection of the Australian community

23    With regard to the nature and seriousness of the applicant’s conduct, the Tribunal stated that, in light of the applicant’s significant history of violence, and particularly his conviction in 2005, the nature and seriousness of his conduct were “very much against him”. The fact that he had effectively received three warnings from the Minister as to possible visa cancellation and, despite that, still reoffended as recently as May 2016 indicated “a total disregard for the law”.

24    With regard to the risk to the Australian community, the Tribunal considered that there were no regular victims of the applicant’s offending conduct aside from his partner, the other victims having been random. However, the Tribunal found that there was a significant risk that people would be seriously hurt if the applicant reoffended. The Tribunal noted the applicant’s failure to reform his behaviour despite having had multiple chances to do so, and was not confident that the applicant would not revert to alcohol and drugs in the future. The Tribunal thus found that this criterion went against the applicant.

Best interests of minor children

25    The Tribunal weighed the evidence regarding the applicant’s influence on the lives of his two daughters, who were minors. The Tribunal concluded that “in the circumstances, the best interests of the minor children affected by the decision would quite strongly fall on the side of him staying in Australia, were it not to be outweighed by other considerations.”

Expectations of the Australian community

26    The Tribunal found that the Australian community, despite its tolerant nature, would “not be prepared to put up with further criminal or serious conduct” on the part of the applicant, and that any residual tolerance it had had after the applicant’s 2005 conviction would have evaporated as a result of his further offending from 2012 to 2016. The Tribunal thus found that the “attitude of the Australian community would not be in favour of revoking the visa cancellation”.

27    The Tribunal noted with regard to the primary considerations that while the best interests of minors as a criterion was “quite strongly” in favour of the applicant, the two other main criteria of the protection and expectations of the Australian community were “strongly against him”.

Other considerations

28    The Tribunal then turned to “other considerations” (as listed above at [16]) insofar as they were relevant. It concluded the following as to the considerations it deemed relevant:

(1)    The nature, strength and duration of the applicant’s ties to Australia were in his favour.

(2)    The only potential impact on victims would be with regard to any future victim, a consideration which had been included in the assessment of the protection of the Australian community.

(3)    The extent of the applicant’s impediments if removed was a significant factor, particularly as the removal was permanent.

The Tribunal’s conclusion

29    The Tribunal then balanced its considerations and concluded the following:

123.    Taking all things into consideration, I regard the primary considerations as being paramount here, those being the protection of the Australian community, the best interests of the children, and the expectations of the Australian community.

124.    For the reasons given, the protection of the Australian community and the expectations of the Australian community necessitate that in this case, because of the serious nature of the various offences committed over three decades, and the continued nature of the serious assaults, that there can be only one decision that this Tribunal can make and that is that the decision of the delegate of the Minister is correct, and his visa does have to be cancelled.

Before this Court

30    The applicant commenced proceedings in this Court by way of an originating application filed on 27 February 2018, and now seeks to rely upon four grounds of review contained in a draft amended originating application filed on 15 June 2018.

Ground 1 – misapplying or misconstruing s 501CA(4) of the Migration Act

31    The terms of this ground of review are as follows (emphasis in original):

The decision of the Tribunal of 25 September 2017 is affected by jurisdictional error because:

1.    The Tribunal misapplied or misconstrued s 501CA(4) of the Migration Act 1958 (Cth) (the Act), asked itself the wrong question, or otherwise committed jurisdictional error.

Particulars

a.    In its reasons for decision dated 8 November 2017 at [124], the Tribunal concluded “that there can be only one decision that the Tribunal can make and that is that the decision of the delegate of the Minister is correct and [the Applicant’s] visa does have to be cancelled”.

b.    The Tribunal was instead required to ask itself and consider whether there was another reason why the original decision should be revoked: s 501CA(4)(b)(ii) of the Act.

32    The penultimate paragraph of the Tribunal’s reasons, [124], is set out in full above at [28]. The applicant submits that the Tribunal’s conclusion “that there can be only one decision that the Tribunal can make and that is that the decision of the delegate of the Minister is correct and [the applicant’s] visa does have to be cancelled” constitutes jurisdictional error by the misapplication or misunderstanding of s 501CA(4) of the Migration Act, or otherwise a failure by the Tribunal to ask itself the correct question, so as to fail to fulfil its statutory task. The applicant submits that, under s 501CA(4)(b)(ii) of the Migration Act, the Tribunal was instead required to consider whether there was another reason why the original decision should be revoked.

33    While the applicant acknowledges that the Tribunal does indicate in its reasons for decision at [2], [10] and [78] that an issue before it was whether there was another reason why the mandatory visa cancellation should be revoked, the applicant submits that [124] was the operative part of the Tribunal’s decision. The applicant submits that there was not only one decision that the Tribunal could have made, such that the reference to the delegate’s decision being “correct” was irrelevant to the Tribunal’s statutory task. Moreover, the applicant submits that the Tribunal’s opinion on the cancellation of the applicant’s visa was not correct because what was in issue was revocation of a prior visa cancellation, rather than a visa cancellation per se.

34    In support of his argument, the applicant draws a comparison with the reasons of the delegate who, after having considered all matters, was not satisfied that there was another reason why the original decision to cancel the applicant’s visa should be revoked, as required by s 501CA(4)(b)(ii) of the Migration Act. The applicant therefore submits that the Tribunal erred by failing to consider whether another reason justified the original cancellation decision being revoked.

35    The Minister makes the conventional submission that this Court, in conducting judicial review of the Tribunal’s decision, should not be concerned with looseness of language or with an unhappy phrasing of the reasons of the Tribunal and must not read those reasons with an eye keenly attuned to the perception of error, citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272. The Minister submits that the Tribunal’s expression of its conclusions at [124] must be read within the context of the reasons as a whole. The Minister submits that it is apparent by reference to those reasons overall, and especially to [2], [7] and [78], that the Tribunal was well aware of the applicable statutory scheme. Taken in that context, the Minister submits, the Tribunal’s expression of its conclusions at [124] does not indicate any misunderstanding or misapplication of the statutory test in s 501CA(4), but, rather, a firm conclusion by the Tribunal that, on the basis of the considerations it weighed, the correct or preferable decision in the circumstances was to affirm the delegate’s decision under review.

36    Read beneficially, the Minister submits, the Tribunal’s reference to the delegate’s decision being correct was simply a reflection of the ultimate conclusion that the decision of the delegate was to be affirmed. The Minister submits that the reasoning process in the Tribunal’s engagement with the mandatory considerations to be taken into account in determining the review is inconsistent with the applicant’s submission that the Tribunal undertook the task of merely detecting error in the delegate’s decision. The Minister submits that that is plainly not the approach that the Tribunal took.

37    The Minister’s submissions in relation to this ground should be accepted. The applicant’s argument depends upon reading [124] in isolation and out of context. When due consideration is given to [2], [10] and, in particular, [78], of the Tribunal’s reasons, it is plain that [124] entailed no more than expressing the factual conclusion that had been reached on a review of all of the material, rather than suggesting that the tests so clearly set out in those paragraphs, and in [78] in particular, had somehow been abandoned or overlooked. While the phrasing was less than ideal, it is clear enough what the Tribunal was intending to convey. There is no reason to doubt that the Tribunal was directing itself to consider whether or not there was another reason for revoking the visa cancellation decision in circumstances in which the character test had not been met. It follows that this ground of review must fail.

Ground 2 – failing to comply with Direction 65

38    The terms of this ground of review are as follows (emphasis in original):

The Tribunal failed to comply with Ministerial Direction No 65 (being “Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under section 501CA”) (Ministerial Direction No 65) as required by s 499(2A) of the Act.

Particulars

a.    In its reasons for decision dated 8 November 2017, the Tribunal regarded three “primary considerations” as “paramount” (at [123]) and two of these necessitated the outcome in this case because of the serious nature of various offences committed over three decades and the continued nature of the serious assaults (at [124]).

b.    The Tribunal was instead required to take into account relevant considerations by weighing the primary and other countervailing considerations together: Ministerial Direction No 65. [8].

39    It was common ground that the Tribunal was bound to, and acknowledged that it was bound to, apply Direction 65 made under s 499(2A) of the Migration Act. However, the applicant’s case on this ground of review is that the Tribunal in fact failed to comply with Direction 65 and thereby made a jurisdictional error, citing YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 at [35].

40    The substance of this ground turns on what the Tribunal said at [123], reproduced again as follows:

Taking all things into consideration, I regard the primary considerations as being paramount here, those being the protection of the Australian community, the best interests of the children, and the expectations of the Australian community.

41    The applicant submits that while the Tribunal appeared to be aware that a weighing process was required, as reflected by its reasons at [14], that weighing process was not self-evident at the operative parts of the reasons. The applicant submits that while it seems, by reading [123] and [124] together, that the expectations and protection of the Australian community outweighed the best interests of the applicant’s children as considerations, the Tribunal did not explain its perception of the interaction between primary and secondary considerations. Moreover, the word “paramount” does not feature as a consideration in Direction 65.

42    The applicant submits that the Tribunal was required to take into account all relevant considerations by weighing the primary and other, possibly countervailing, considerations together by reason of [8] of Direction 65, noting the following features:

(1)    even strong countervailing considerations may be insufficient to justify not cancelling or refusing a visa: Direction 65 at [6.3(4)];

(2)    both primary and other considerations “may weigh in favour of or against … whether or not to revoke a mandatory cancellation of a visa”: Direction 65 at [8(3)];

(3)    primary considerations should generally be given greater weight than other considerations: Direction 65 at [8(4)]; and

(4)    one or more primary considerations may outweigh other primary considerations: Direction 65 at [8(5)].

The applicant submits that the Tribunal’s approach does not demonstrate conformity with the above requirements.

43    The applicant again places reliance on a comparison with the decision of the delegate, which he submits clearly indicated that the factors for and against revocation had been weighed. The delegate concluded that the applicant presented an unacceptable risk of harm to the Australian community, and that protecting the community outweighed the best interests of his children as a primary consideration as well as other countervailing considerations. The applicant submits that the Tribunal erred by not taking this approach.

44    The Minister submits that the use by the Tribunal of the word “paramount” at [123] was consistent with [8(4)] and [8(5)] of Direction 65. The Minister submits that a fair reading of the Tribunal’s findings at [123]-[124] indicates the Tribunal’s satisfaction that greater weight in this case should be given to primary considerations as opposed to other considerations, and, in particular, the conclusion that the primary considerations of the expectations and protection of the Australian community were worthy of greater weight in this case. The Minister submits that the Tribunal, by reference to its reasons overall, was aware that it was not in all cases that the primary considerations would outweigh the other considerations, as was made clear by the Tribunal’s reasons at [14].

45    The Minister submits that, having regard to the Tribunal’s reasons read as a whole, the applicant’s contention that the Tribunal failed to weigh the primary and other countervailing considerations together cannot be sustained. In support of that submission, the Minister referred to the various factors that the Tribunal found it was required to consider and weigh, namely that:

(1)    the nature and seriousness of the applicant’s prior offending were against him: [88];

(2)    the fact that the applicant had previously been warned that the Minister’s Department was considering cancelling his visa was against him: [89];

(3)    the evidence was not in favour of the applicant in respect of the likelihood of his reoffending: [96];

(4)    the best interests of the applicant’s minor children were a factor “strongly in his favour”: [101];

(5)    the attitude of the Australian community would not be in favour of revoking the visa cancellation: [108];

(6)    when having regard to “other considerations” as required under Direction 65, the Tribunal found that the strength, nature and duration of the applicant’s ties to Australia were both significant and in his favour: [112]; and

(7)    there would be impediments to the applicant returning to Tonga: [117].

46    The Minister submitted that, taken together, the Tribunal’s conclusion at [123] that the primary considerations were paramount made it clear that the Tribunal did engage in the necessary weighing process required under the Migration Act and Direction 65.

47    Again, the Minister’s submissions should be accepted in relation to this ground, especially when regard is had to the Tribunal’s reasons as a whole. In particular, the Tribunal at [12] to [14] accurately summarised the requirements of Direction 65 and then proceeded to address each of those considerations. It does not take a beneficial reading to understand that [123] reflects no more than the Tribunal’s conclusion that, in this case, the primary considerations should be given greater weight than the other considerations and, to that extent, should be regarded as paramount. It is not fairly open to conclude that the Tribunal failed to carry out the necessary assessment mandated by Direction 65, including weighing the competing considerations. It follows that this ground of review must fail.

Ground 3 – failure to give proper, realistic and genuine consideration to representations made by the applicant

48    The terms of this ground of review are as follows:

The Tribunal failed to give proper, genuine and realistic consideration to representations made by the Applicant under s 501CA(4) of the Act, failed to consider material relevant to its decision, or otherwise committed jurisdictional error.

49    The content of the ground is then spelt out in three detailed sub-grounds, which constitute separate grounds based upon different factual applications of the same type of asserted jurisdictional error. After listing the three sub-grounds, it is pleaded by the applicant that for all of those sub-grounds, it ought to be inferred that the Tribunal failed to give proper, genuine and realistic consideration to the applicant’s representations or failed to consider material relevant to its decision.

50    The applicant’s submissions commence with a consideration of the general principles attaching to a ground of review such as this, and then turn to the three separate sub-grounds. It is desirable to have some clarity about what the applicable principles are before turning to each of the three sub-grounds.

Applicable legal principles

51    The applicant relies upon Picard v Minister for Immigration and Border Protection [2015] FCA 1430, in which Tracey J said at [42] that:

… If, in making representations, the applicant provides information to the Minister, relating to his or her personal circumstances, and that information is critical and relevant to the applicant’s case the Minister is bound to consider it. It will be a matter for the Minister to weigh such matters against other relevant considerations, including those mentioned in Direction 65. …

52    However, the statement in the first sentence reproduced in the quote from Picard above should not be taken out of context. As Robertson J observed in Goundar v Minister for Immigration and Border Protection [2016] FCA 1203 at [55], after referring to that sentence in Picard, that comment was made “in the context of procedural fairness obligations owed by the Minister under s 501CA(4)” and should not be read as “standing for the proposition that each statement in the representation is a mandatory relevant consideration”. His Honour further observed at [56]:

As stated by the Full Court in Price v Elder [2000] FCA 133; 97 FCR 218 at [13], where a discretion is unconfined by the terms of the statute, a court will not find that the decision-maker is bound to take a particular matter into account unless an implication that he or she is bound to do so is to be found in the subject matter, scope and purpose of the Act: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40;162 CLR 24 at 39-40. While I accept that under s 501CA(4) representations as a whole constitute a mandatory relevant consideration, I do not accept that any particular statement in the representations should be so characterised. As presently advised, I would distinguish Htun [v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; 233 FCR 136] at [42] on the basis that both the text and context of the statutory provisions are quite different.

53    The source of the obligation to give reasons in cases involving visa refusal and cancellation on character grounds, as well as cases involving revocation of such cancellation, is contained in s 501G(1)(c) of the Migration Act, which requires that written notice of the decision must be provided that, inter alia, sets out the reasons (other than non-disclosable information as defined) for the decision. Section 25D of the Acts Interpretation Act 1901 (Cth) provides that where an Act makes such a requirement, the instrument giving the reasons must also “set out the findings on material questions of fact and refer to the evidence or other material upon which those findings are made”.

54    Findings on questions of fact are only required to be made on matters that the Minister considers to be material, as decided by the High Court in relation to a relevantly identical reason-giving provision: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 at [10], [33] to [35], [67] to [68] and [235]. If the Minister’s assessment of what had to be considered, what had to be the subject of a finding on a material question of fact, or the manner in which such matters were considered or about which a finding was made, gave rise to not just a legal error or factual error but instead to an operative jurisdictional error, then the ultimate decision arising from that assessment may be able to be vitiated in judicial review proceedings.

Subground 3A – non-refoulement obligations

55    This sub-ground asserts that the Tribunal failed to give proper, genuine and realistic consideration to representations made by the applicant under s 501CA(4) of the Migration Act, failed to consider material relevant to its decision, or otherwise committed jurisdictional error. The text of the sub-ground is as follows:

a.    In its reasons dated 8 November 2017, the Tribunal:

(i)    noted the Applicant’s concern that, if sent back, Tonga would not have any drug and alcohol programs available for him to do and that he would not get the medical help that he needed to get (at [68]);

(ii)    noted the Applicant’s reiteration about the significant problems he would face should he be deported to Tonga (at [73]);

(iii)    noted there would be impediments if the Applicant was removed because Tonga does not have the same health system as Australia (at [117]); and

(iv)    concluded that international non-refoulement obligations were “not relevant here as there are none” (at [111]).

b.    Ministerial Direction No 65 (at [14.1]) identifies Australia's international non­refoulement obligations as including the International Covenant on Civil and Political Rights, Article 7 of which requires Australia not to subject the Applicant to cruel. inhuman or degrading treatment or punishment, which could occur to the Applicant by reason of the non-availability of or limited access to the required medical treatment and health services in Tonga.

56    This sub-ground of review takes issue with the conclusion by the Tribunal at [111] that international non-refoulement obligations were “not relevant here as there are none”. The context in which this complaint is made is that the Tribunal:

(1)    noted the applicant’s concern that if he were sent back to Tonga he would not have any drug and alcohol programs available to him and that he would not get the medical help that he needed: Tribunal reasons at [68];

(2)    also noted the applicant’s reiteration about the significant problems he would face should he be deported to Tonga: Tribunal reasons at [73]; and

(3)    recognised that there would be impediments of this kind because Tonga did not have the same health system as Australia: Tribunal reasons at [117].

57    The applicant relies upon [14(1)(h)] and [14.1] in Direction 65 to the combined effect that, in deciding whether to revoke a mandatory visa cancellation, other considerations “must be taken into account when relevant”, including international non-refoulement obligations, such as those under Article 7 of the International Covenant on Civil and Political Rights. Article 7 requires Australia not to subject the applicant to cruel, inhuman or degrading treatment or punishment, which, on the applicant’s argument, could conceivably occur to him by reason of the non-availability of, or limited access to, the required medical treatment and health services in Tonga. The applicant submits that this consequence arose with “tolerable clarity” from the materials that were before the Tribunal, but it failed to consider them.

58    It was common ground that the applicant did not expressly advance any claim to the Tribunal, or previously to the Minister’s Department as part of his representations on the revocation of the cancellation of his visa, that he was subject to any particular non-refoulement obligations or that Australia would breach those obligations if it returned him to Tonga.

59    The Minister principally submits that as the Tribunal had regard to the representations advanced by the applicant concerning the circumstances he would face in Tonga and the detriment he would suffer if he was to return there (at [68], [73] and [117]), and as the Tribunal made an express finding about non-refoulement obligations, concluding that there were none, this was a complete answer to the claim that the Tribunal failed to give genuine consideration to whether such obligations were owed. The Minister submits that mere disagreement with those conclusions does not constitute any basis for error, let alone jurisdictional error.

60    The Minister further submits that, having regard to [14.1(1)] of Direction 65, it is clear that the obligation to consider international non-refoulement obligations is in any event qualified by reference to those reflected in Australian law, in particular under the Migration Act. In relation to Article 7, which provides that “no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment”, regard must be had to the exhaustive definitions of “cruel or inhuman treatment or punishment" and “degrading treatment or punishment” in s 5(1) of the Migration Act, which are as follows:

cruel or inhuman treatment or punishment means an act or omission by which:

(a)    severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

(b)    pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

but does not include an act or omission:

(c)    that is not inconsistent with Article 7 of the Covenant; or

(d)    arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

(a)    that is not inconsistent with Article 7 of the Covenant; or

(b)    that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

61    The Minister relies upon SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; 347 ALR 405 at [26]-[27], in which it was observed that each of those definitions incorporates the element of intention, which must be given its natural and ordinary meaning, namely an actual subjective intent. The Minister submits that in the circumstances of this case, no representation was made by the applicant that any impediment, disadvantage or mistreatment he might suffer in Tonga, were he to be returned there, would be intentionally inflicted by anyone. Specifically, it was not suggested, nor could it be reasonably inferred, that a lack of available medical treatment for the applicant in Tonga would constitute any intentional infliction of harm upon him. In all of the circumstances, the Minister therefore submits that the Tribunal did not fail to consider any non-refoulement obligations that may have applied to the applicant. Accordingly, the Tribunal was correct to conclude, on the evidence before it, that no such obligations existed.

62    The Minister's submissions on this sub-ground must be accepted. There is no proper basis to conclude that the Tribunal erred in fact or in law, let alone to the point of constituting jurisdictional error, in finding that international non-refoulement obligations were not relevant because none existed. This was not a case in which the substance of a claim was made, lacking only the necessary nomenclature. Rather, there was no such claim in substance made at all. Such a claim cannot be created as an afterthought, particularly where, even with a retrospective view, there appears to be no foundation for it to be made. This sub-ground of review must therefore fail.

Subground 3B – Tongan culture

63    This sub-ground again asserts that the Tribunal failed to give proper, genuine and realistic consideration to representations made by the applicant under s 501CA(4) of the Migration Act, failed to consider material relevant to its decision, or otherwise committed jurisdictional error. The text of the sub-ground is as follows:

a.    The Applicant made a representation in accordance with s 501CA(3)(b) of the Act that two of his children (Sonny and Latisha) wished to know about Tongan culture.

b.    Nowhere in its reasons for decision dated 8 November 2017 does the Tribunal make any relevant findings or give any reasons with respect to this representation.

c.    The representation was relevant and significant to the Tribunal’s decision, including its consideration of the best interests of minor children, the nature of the Applicant’s ties to Australia and the extent of impediments if removed.

64    This sub-ground of review also relies upon the application of the requirements of Direction 65 to the circumstances of the applicant’s case. In particular, reliance is placed upon the object of Part C in [5] of Direction 65, namely that it “identifies the considerations relevant to former visa holders in determining whether to exercise the discretion to revoke the mandatory cancellation of a non-citizen’s visa”. When the discretion is enlivened, the decision-maker must consider whether to revoke the cancellation “given the circumstances of the case” ([6.1(3)] and [13(1)]), and “must take into account the primary and other considerations relevant to the individual case” ([8(1)]). With this general framework in mind, the applicant relies upon particular entries made in the standard form seeking revocation that he completed to create, in effect, mandatory relevant considerations. In particular, he relies upon responses given to questions in the standard form as to the impact that visa cancellation would have on the children listed in the form.

65    The applicant stated in the form that his son “[w]ants the Tongan culture”, that his daughter ‘[w]ants to know her Tongan culture” and that he “want[ed] to have a relationship with my children”. He stated that he remembered being brought up in Australia with a “strong Tongan influence”, did not remember Tonga and would be lost without his family, children and particularly his son.

66    It was not in doubt that the Tribunal found that revoking the applicant’s visa cancellation would be in the best interests of his children, and that in so finding, the Tribunal made no express reference to these particular representations. It is convenient to assume in the applicant’s favour that the comments made in the personal details form did constitute a submission, although there is some room to doubt that this is not overstating the position somewhat. With that assumption, the issue is whether such a claim was required to be considered separately and overtly reflected in the Tribunal’s reasons.

67    The applicant submits that these particular representations were relevant and significant to the Tribunal’s decision. That was said to be so for the following three identified reasons:

(1)    A decision-maker must determine whether revocation is in the best interests of each child, citing Direction 65 at [13.2 (1) and [13.2(3)]. Where relevant, a number of factors must be considered, including the nature of the relationship between the child and the non-citizen, the extent to which the non-citizen is likely to play a positive parental role in the future and the likely effect of any separation from the non-citizen, citing Direction 65 at [13.2(4)].

(2)    The representations were relevant to the nature of the applicant's ties to Australia. This consideration includes any family or social links with Australian citizens, including the impact of non-revocation on the non-citizen’s immediate family in Australia, citing Direction 65 at [14.2(1)(b)].

(3)    The representations were relevant to the extent of impediments the applicant would face if he was removed from Australia. Substantial cultural barriers are to be taken into account when assessing how the applicant may establish himself and maintain basic living standards, citing Direction 65 at [14.5(1)(b)].

68    The applicant submits that while the Tribunal was clearly aware of these considerations at a global level, as referred to at [12]-[13] and [110] of the reasons, nowhere in the Tribunal's consideration of these matters does it refer to the representation concerning the children’s interest in Tongan culture. In support of his argument, the applicant cited Lafu v Minister for Immigration and Citizenship [2009] FCAFC 140; 112 ALD 1 at [48]-[49] and Islam v Cash [2015] FCA 815; 148 ALD 132 at [14].

69    The Minister’s submissions in response characterised the representations relied upon by the applicant as being no more than a very short comment in his personal details form about his elder son and eldest daughter wanting to know about their Tongan culture. The Minister submits that the Tribunal did not fall into error in failing to have regard to every part of every answer given on the applicant’s personal details form and that each of the representations in the form did not enjoy the status of mandatory considerations. The Minister correctly submits that the cases of Lafu and Islam v Cash relied upon by the applicant were cases concerning allegations that mandatory considerations, rather than a mere representation, had been overlooked, assuming that the comments made on the form can be characterised as a representation. The Minister submits that, in any event, the only considerations to which such representations were relevant were the best interests of each child (at least in respect of the applicant’s eldest daughter) and the nature of the applicant’s ties to Australia, in considering the broader impact of his removal on his family. Each of those factors was weighed by the Tribunal in favour of revocation.

70    The substance of the applicant’s complaint, although not expressed as such, was that he was entitled not just to have:

(1)    the overarching primary considerations of the best interests of his children considered, which, as summarised at [24] above, took place;

(2)    the consideration of his ties to Australia considered, which, as summarised at [27(1)] above, took place; and

(3)    the extent of impediments he faced if he was removed from Australia considered, which, as summarised at [27(3)] above, took place,

but that the conclusion as to each be reached by, or in part by, a consideration of the pathway of the particular factors that he relied upon in support of that conclusion.

71    The applicant’s argument is simply not sustainable. If the particular consideration he relied upon was found not to have been made out, then there might, in a given case, be scope to examine whether essential evidence to support a contrary conclusion had been overlooked in a way that constituted jurisdictional error. However, once it was found by the Tribunal, in the applicant’s favour, that each of these considerations favoured revocation of the visa cancellation, no more was required. The Tribunal did not have to reach the favourable intermediate conclusion by any particular pathway, or give any such factor particular weight or effect or rely upon any particular evidence or material. This sub-ground of review must therefore fail.

Subground 3C – a representation to contact Ms Ryan

72    This sub-ground again asserts that the Tribunal failed to give proper, genuine and realistic consideration to representations made by the applicant under s 501CA(4) of the Migration Act, failed to consider material relevant to its decision, or otherwise committed jurisdictional error. The text of the sub-ground is as follows:

a.    In its reasons for decision dated 8 November 2017, the Tribunal indicated that:

(i)    it did not know what Ms Ryan’s current attitude was (at [32]); and

(ii)    simply did not know whether she wanted any contact with the Applicant (at [120]).

b.    The Applicant had represented in accordance with s 501CA(3)(b) of the Act that Ms Ryan (nominated as the custodial parent of his children and former partner) could be contacted regarding his case.

c.    Nowhere in its reasons for decision dated 8 November 2017 does the Tribunal make any relevant findings or give any reasons with respect to this representation.

73    In support of this sub-ground, the applicant points to evidence before the Tribunal that, in 2007, a psychologist asked him what he thought his partner’s response would be should he be deported. At that time, the applicant thought that his partner would have difficulty looking after their children and finding employment, and would experience emotional distress. When the applicant’s partner was interviewed at that time, she said that although she was mostly concerned with the children’s welfare, she hoped that a good relationship could be rekindled with the applicant. The psychologist concluded that she remained loyal to him, despite the difficulties in their relationship.

74    The applicant further points out that in its reasons for decision, the Tribunal noted that the view of his partner was very relevant during 2007 when the applicant’s visa was being considered for cancellation and certain matters were indicated. The Tribunal also noted that it was interesting and perhaps understandable that she had not provided evidence to the Tribunal on this occasion. The Tribunal said that her attitude now was not known and that she had not made any representations one way or another. The Tribunal also noted that the applicant would have been deported in 2007 but for representations from, inter alia, his partner at that time.

75    The applicant relies upon the fact that in November 2016, the applicant had again represented that his former partner was the primary carer for his children, had authorised the Minister’s Department to contact her regarding his case as the custodial parent/guardian of his children and had provided her mobile number. The substance of the applicant’s complaint is that rather than contact her, the Tribunal had done no more than record that it was not known whether she wanted any contact at all with the applicant and that her position was equivocal. The applicant submits that although an apprehended violence order may “indicate her silence or not”, that would not prevent the Tribunal from enquiring if it had wished to do so. The applicant submits that it is sufficient to establish jurisdictional error that the applicant had represented that he had authorised the decision-maker to contact his former partner about his case.

76    The Minister submits, with some degree of incisiveness that is beneficial to the applicant, that the applicant appears to contend that the Tribunal erred in failing to take into account his representation that he had authorised decision-makers to contact his former partner about his case. Cast in this way, this may avoid characterising this sub-ground as relying upon any duty to enquire as opposed to relying upon a representation that was made. With that beneficial characterisation, the Minister submits that it was a matter for the applicant to present the evidence that he wished the Tribunal to consider. The Tribunal was under no obligation to speculate about what the evidence of the applicant’s former partner might have been, and certainly had no duty to call her to give evidence. The Minister submits that this is particularly so in the present case as it was apparent that the current relationship may be complicated, noting that apprehended violence orders have been in place since 2012. Whether or not his former partner was prevented from giving evidence to the Tribunal or not was beside the point. The fact is that she was not available before the Tribunal to give evidence, which contrasted with her and the applicant’s two eldest children, who gave statements in support of their father. In those circumstances, the Minister submits, no error on the part of the Tribunal has been identified, let alone made out.

77    This sub-ground of review does not reach the point of identifying any jurisdictional error, much less making out such an allegation. The fact of authorising contact to be made did no more than enable the Tribunal to do so if it found that such a course was necessary or appropriate. Nothing more can be derived from such an authorisation in the circumstances of this case. The Tribunal was not under any obligation to record in its reasons the fact that such an authorisation had been given, let alone take any step in acting upon such an authorisation. This sub-ground of review must therefore fail.

Ground 4 – making critical findings of fact without logically probative evidence

78    The terms of this ground of review are as follows:

The Tribunal made factual findings which were critical to its decision in the absence of logically probative evidence.

Particulars

a.    In its reasons for decision dated 8 November 2017, the Tribunal found that:

(i)    for violent transgressions, the Australian community would have less regard to the individual, err on the side of visa revocation and want that person deported (at [105]); and

(ii)    it would be preferable for the Australian community to see the Applicant deported to Tonga (at [108]).

b.    There was no probative evidence before the Tribunal, including from Ministerial Direction No 65, which supported either finding.

c.    These findings were significant to the Tribunal’s decision because the expectations of the Australian community was one of two considerations upon which the Tribunal affirmed the decision under review (at [124] of its reasons for decision).

79    The applicant submits that the Tribunal made factual findings that were critical to its decision without the support of logically probative evidence. It is not in doubt that if that circumstance can be shown to exist, it can amount to jurisdictional error: see BZC17 v Minister for Immigration and Border Protection [2018] FCA 902 at [100]. The applicant submits that that is so in this case. In support of that submission, the applicant characterised the following as constituting findings that were made without the support of logically probative evidence:

(1)    that for violent transgressions, the Australian community would have less regard to the individual, err on the side of visa cancellation and want that person deported: Tribunal reasons at [105]; and

(2)    that it would be preferable for the Australian community to see the applicant deported to Tonga: Tribunal reasons at [108].

80    The applicant characterises those two findings as being critical to the Tribunal's decision because the expectations of the Australian community were one of two considerations upon which the decision under review was affirmed. The applicant submits that there was no logically probative evidence before the Tribunal, including from Direction 65, which supported either of those two findings.

81    The Minister submits that it is plainly unnecessary for the Tribunal to have evidence before it of the views of Australians before it can make findings as to what it considers to be the expectations of the Australian community in a given case. That is because the Tribunal, in common with the Minister or his delegate, is permitted to have regard to the expectations of the Australian community in the context of determining whether or not to revoke the cancellation of a non-citizen’s visa. That, in turn, is because, quoting Djalic v Minister for Immigration [2004] FCA 151; 139 FCR 292 at [71]:

… the legislation is designed to protect the community from criminal or other undesirable conduct and to permit the Minister to give effect to what might loosely be described as community expectations that perpetrators of such conduct, should not be a permitted to remain in Australia.

82    The Minister submits that Direction 65 provides the source of the Australian community’s expectations when it comes to visa cancellations and revocation of visa cancellations. In particular, [13.3] within Part C, which deals with revocation of a mandatory visa cancellation, provides as follows:

13.3    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 not revoke the mandatory visa cancellation of such a person. Non-revocation 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 hold a visa. Decision-makers should have due regard to the Government’s views in this respect.

83    The Minister submits that Direction 65 provides, consistently with the Tribunal’s findings, that the Australian community expects non-citizens to obey Australian laws while in Australia and that non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that such a person should not hold a visa. The Minister relies upon the principles set out at [6.3] of Direction 65 as being instructive and not inconsistent with any of the Tribunal’s findings at [102]-[108]. Those principles are as follows:

6.3    Principles

(1)    Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

(2)    The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.

(3)    A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

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

(5)    Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.

(6)    Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.

(7)    The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.

84    The Minister submits that it was a matter for the Tribunal to assess for itself, by reference to Direction 65, what the expectations of the Australian community were in the context of the facts and material before it and to weigh that consideration in accordance with Direction 65. That is what the Tribunal did, such that no error has been identified or established.

85    The applicant’s argument misconceives the representative nature of the Tribunal’s function and, for that matter, the same function when the exercise of the revocation power is being considered by the Minister or his delegate. The concept of community expectations is not a matter to be measured as though it is a provable fact. It is an assessment of community values made on behalf of that community. That would be so even in the absence of the express terms of Direction 65. However, those express terms put the question beyond doubt. The norm is stipulated, inter alia, in Direction 65 reproduced above. The Tribunal was required to give effect to those norms, which is precisely what it did. There is no error, legal or factual, in what the Tribunal did, let alone the requisite jurisdictional error. This sub-ground must therefore fail.

Conclusion

86    As each of the grounds of review has failed for the reasons provided above, the amended originating application must be dismissed with costs.

Associate:

Dated:    29 August 2018