FEDERAL COURT OF AUSTRALIA
CVN17 v Minister for Immigration and Border Protection [2019] FCA 13
ORDERS
Applicant | ||
AND: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent | |
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. The applicant be granted an extension of time under r 31.23 of the Federal Court Rules 2011 (Cth), within which to lodge an application for review of a migration decision.
2. The decision of the Administrative Appeals Tribunal made on 23 February 2017 be set aside.
3. The matter be remitted to the Administrative Appeals Tribunal, differently constituted, to be determined according to law.
4. The first respondent pay the applicant’s costs of and incidental to the proceeding, as agreed or assessed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
KENNY J:
1 The applicant is a citizen of New Zealand, who first entered Australia on 8 February 2001, accompanied by his mother and two brothers. He was then six years of age, and held a Class TY Subclass 444 Special Category (Temporary) visa (applicant’s visa). He continued to hold that visa until 6 November 2015 when a delegate of the respondent Minister decided to cancel the applicant’s visa under s 501(3A) of the Migration Act 1958 (Cth).
2 This is an application for an extension of time in which to seek judicial review of a decision of the Administrative Appeals Tribunal made on 23 February 2017, affirming a subsequent decision of another delegate of the Minister not to revoke the cancellation of the applicant’s visa under s 501CA(4) of the Migration Act.
3 The applicant relied on the affidavit of Siran Jennifer Nyabally, legal practitioner, affirmed on 27 June 2017 (and its annexure); the affidavit of Carina Ford, legal practitioner, affirmed on 21 September 2017 (and its annexure); a draft originating application for review of a migration decision amended on 2 March 2018; and written submissions dated 2 March 2018, which were augmented by counsel at the hearing.
4 The Minister relied on written submissions dated 8 March 2018, which were also augmented by counsel at the hearing. The Court was also provided with a Court Book of two volumes and a short Supplementary Court Book.
5 The Minister did not oppose the extension of time sought, and the matter was argued on the basis that, if the Court granted an extension of time, then it would also determine the substantive judicial review application.
6 For the reasons that follow, the extension of time should be granted and the decision of the Tribunal made on 23 February 2017 should be set aside.
Background
7 The applicant’s mother left New Zealand with her three sons in 2001, in order to escape the domestic violence that she and her family were suffering in that country prior to their arrival in Australia. Around 2003, the applicant’s mother formed a new relationship with the applicant’s stepfather. The applicant has had, and continues to have, a close relationship with his immediate and extended family.
8 Between 3 September 2012 and 7 April 2015, the applicant was convicted of a number of offences, including on 28 August 2014 in the County Court of Victoria at Melbourne. On that date, the applicant was convicted of recklessly causing serious injury and sentenced to three years’ imprisonment, with a non-parole period of 15 months.
9 As already indicated, the original decision to cancel the applicant’s visa pursuant to s 501(3A) was made on 6 November 2015. Section 501(3A) mandated visa cancellation where:
(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.
10 That decision was the outcome of the delegate’s satisfaction that the applicant did not pass the character test because of the operation of s 501(7)(c) of the Migration Act and that the applicant was at that time serving a sentence of imprisonment, as described in s 501(3A)(b). The effect of s 501(7)(c) is that a person has a substantial criminal record for the purposes of the character test if that person has been sentenced to a term of imprisonment of 12 months or more.
11 Section 501CA(3) of the Migration Act provided that, as soon as practicable after making a visa cancellation decision under s 501(3A), the Minister must notify the former visa holder of the cancellation decision and invite the person to make representations to the Minister about the revocation of that decision. By letter dated 6 November 2015, the applicant was notified of the decision to cancel the applicant’s visa and invited to make such representations.
12 Section 501CA(4) provided that:
The Minister may revoke the original decision if:
(a) the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501; or
(ii) that there is another reason why the original decision should be revoked.
13 Section 501CA(5) further provided that, if the Minister revokes the original decision, the original decision is taken not to have been made.
14 The applicant subsequently made extensive, although unsuccessful, representations to the Minister, in conformity with the Migration Act, seeking the revocation of the 6 November 2015 visa cancellation decision on the basis that there was “another reason” why the cancellation decision should be revoked: see s 501CA(4)(b)(ii).
15 As indicated, however, notwithstanding the applicant’s representations, another delegate of the Minister decided not to revoke the original decision to cancel the applicant’s visa. The applicant was notified of this decision by letter dated 5 April 2016, and he was also advised by that letter that he was entitled to apply to the Tribunal for review of the decision. Section 500(1)(ba) of the Migration Act enabled the applicant to make an application to the Tribunal for review of the delegate’s decision under s 501CA(4) not to revoke the decision to cancel the applicant’s visa: see also Administrative Appeals Tribunal Act 1975 (Cth) s 25.
16 On 7 April 2016, the applicant applied to the Tribunal for review of the 5 April 2016 decision. There was a hearing before the Tribunal on 16 and 25 January 2017. The applicant, who was at the time in custody at the Fulham Correctional Centre, appeared and gave evidence in person. The applicant was represented before the Tribunal by a law student who provided assistance on a pro bono basis. As already stated, on 23 February 2017, the Tribunal affirmed the non-revocation decision.
Tribunal’s decision
17 At the outset of its reasons, the Tribunal recorded that the applicant’s case was such that s 501CA(4)(b)(i) could not apply as the applicant could not “pass the character test set out in s 501(7) as he has been sentenced to a term of imprisonment of 12 months or more”; and that this meant that s 501CA(4)(b)(ii) posed the only relevant question. Standing in the shoes of the Minister, the question for the Tribunal was whether or not it was satisfied that there was another reason why the visa cancellation decision should be revoked.
18 The Tribunal’s reasons discussed the applicant’s convictions, what were said to be a number of family violence reports (involving other family members and his then girlfriend, almost all involving no violence or threats of violence, including where the applicant was evidently not the supposed perpetrator), two reported domestic incidents attended by police in January 2012 when the applicant was 17 years of age (neither of which led to charges), health matters, the applicant’s behaviour in prison, and “various offences and incidents” in relation to the applicant’s behaviour as a child between 9 and 17 years of age.
19 It suffices to note at this point that the Tribunal rejected the applicant’s submission that it could not have regard to incidents that came to the attention of police when the applicant was a child under the age of 10, and in relation to which he was not charged. It did so on the basis that its task was to review the merits of an administrative decision not to revoke the decision to cancel the applicant’s visa, and not to determine the applicant’s criminal culpability. The Tribunal’s reasoning in relation to this issue is set out in more detail below.
20 In reaching its decision, the Tribunal had regard to “Direction No 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA”, issued by the Minister under s 499 of the Migration Act. In relation to the protection of the Australian community, a matter to which Direction No 65 directed its attention, the Tribunal found that the offence for which the applicant was convicted on 28 August 2014 was very serious and that this seriousness was reflected in the sentence passed on him. The Tribunal opined that:
[81] The offence of Recklessly Cause injury is the most serious of the offences for which [the applicant] has been convicted but it represents a high point of the violence he has exhibited against persons and property. He has displayed various levels of that violence both within his family environment and outside it.
…
[83] Outside the family, the reports of [the applicant] having exhibited violent behaviour begin with an offence of assault against another child when he was nine years of age. …
[84] When regard is had to the overall pattern of [the applicant’s] behaviour before his incarceration, it shows a consistent pattern of aggression towards persons and property. … The pattern is one in which anger and then violence have been his responses to situations which have, at least in relation to the service station offences and the offence of Recklessly Causing Serious Injury, have been situations which he has initiated. This is a pattern of serious concern.
…
[86] It is deeply concerning that the day on which [the applicant] stabbed the Victim was not the first time that he had reacted angrily and without giving thought to the situation … . It is not even the second time but part of a pattern that started when he was a child. That pattern reflects a pattern of aggression in his responses … .
[87] When he was nine years of age, he was involved in what could be ignored as a spat with another boy had it been an isolated incident. It was followed, however, by an incident when he was 15 years when he had threatened to kill both his mother and his stepfather and assaulted his mother. In giving evidence, [the applicant’s] mother rejected any suggestion that her son had ever hit her.
[88] When I look to the reports relating to other incidents involving his mother, I think that his mother’s rejection is understandable but not consistent with what has happened in the past. Even if I discount what occurred when he was a child, there have been incidents in which he has been involved in altercations with his mother. …
…
[90] Putting his family aside, [the applicant’s] aggressive behaviour once he turned 17 years has not been limited to members of his family. …
…
[97] … Having regard only to those [offences and incidents] that have been reported since he attained the age of 17 years, [the applicant’s] behaviour has shown a trend of behaviour that is uncontrolled in its outcome whether that is directed at people or property. …
21 The Tribunal concluded that the applicant had “not addressed his behaviour so that he has come neither to an understanding of why he acts as he does nor an ability to work out the consequences of his actions before he undertakes them”. The Tribunal continued (at [98]):
… [H]is failure to do either or his failure to do either adequately has led him to commit the very serious crime when he stabbed the Victim as well as other assaults and crimes against property. In view of that, I am satisfied that [the applicant] is likely to repeat his conduct. He represents a risk of harm to the Australian community and to individuals and property within it that is unacceptable.
22 With respect to the best interests of minor children in Australia affected by the decision, a matter to which Direction No 65 also directed the Tribunal’s attention, the Tribunal recognised that “[i]f he is not permitted to remain in Australia, [the applicant] will not be a figure in his niece’s life”. The Tribunal noted that the applicant’s niece was very young at the time of the Tribunal’s decision, that they would lose the opportunity to form a relationship if the applicant was removed from Australia, and that the applicant’s “niece’s opportunity to see him would be limited to any trips that she makes in the future to New Zealand”.
23 The Tribunal subsequently considered other matters as directed by Direction No 65, including the expectations of the Australian community, the strength, nature and duration of the applicant’s ties to Australia, impact on Australian business interests, impact on victims, and the extent of impediments if the applicant were removed from Australia and not permitted to return.
24 The Tribunal concluded that, “[h]aving regard to all of these matters”, the decision under review should be affirmed. The Tribunal stated at [119]-[120]:
[119] … The history of [the applicant’s] offending, the serious nature of the crime that he committed in stabbing the Victim, his lack of application in trying to change his ways so that the risk of his repeating his behaviour was not significantly reduced and the serious outcomes that will follow if he repeats his behaviour, lead me to conclude that the Australian community’s tolerance of his behaviour has come to an end.
[120] His history of offending began when he was only nine years of age and had only been in Australia for two years or so. Therefore, while it can be said that most of his formative years have been spent in Australia, it can also be said that he brought the foundations of his offending behaviour with him. It is behaviour which is not explained on the evidence that I have by reason of his suffering from a medical condition. The risk of his repeating his behaviour is at an unacceptable level given the serious consequences that would follow should he repeat it.
25 The applicant seeks judicial review of the Tribunal’s decision, and he requires an extension of time within which to file his judicial review application.
Application for an extension of time
26 The applicant filed his extension of time application on 28 June 2017. Since the date of the Tribunal’s decision was 23 February 2017, he was about three months out of time: see Migration Act, s 477A(1) which provides for a 35-day period from the date of decision in which to apply to the Court for review as of right. The Court may, however, grant an extension of time under s 477A(2) of the Migration Act in certain circumstances. Before granting such an extension, the Court must be satisfied that it is “necessary in the interests of the administration of justice” to do so: see s 477A(2)(b).
27 The Court has generally treated the principles and factors referred to by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 186; 3 FCR 344 (in respect of applications for extension of time under s 11 of the Administrative Decisions (Judicial Review) Act 1977 (Cth)) as relevant to a decision whether to extend time under analogous statutory and other provisions. Generally speaking, it is incumbent on an applicant for an extension of time to satisfy the Court that: (1) there is an acceptable explanation for the delay; (2) there would be no undue prejudice to a respondent if the Court were to extend time; and (3) there is sufficient merit in the proposed application to justify an extension of time. Plainly enough, these considerations are not exhaustive, and the outcome of an extension of time application will always depend on the particular circumstances of the case.
28 In her affidavit of 27 June 2017, Ms Nyabally deposed that the applicant had had difficulties in obtaining legal assistance, both before and after the Tribunal’s decision. She deposed that the applicant had not been able to afford legal representation before the Tribunal, but had been assisted by a law student acting on a pro bono basis. When, however, the law student sought to file an application for judicial review within the prescribed time frame, he was advised that he could not do so as he was not legally qualified. The applicant’s difficulty in accessing legal advice was heightened by the fact that he was in custody, and isolated from his family. Ms Nyabally also deposed that there was delay while the applicant’s mother sought assistance from Victoria Legal Aid on the applicant’s behalf. When this request was declined in early May 2017, the applicant’s mother unsuccessfully sought legal assistance from other lawyers until she made contact with the applicant’s current lawyers, who agreed to act for him. After taking steps to obtain a transcript of the hearing before the Tribunal, brief counsel, obtain advice from counsel regarding the prospects of success, and seeking instructions, the applicant’s current solicitors proceeded to prepare and file the extension of time application.
29 I accept that the applicant’s current solicitors have acted as expeditiously as they could in all the circumstances, and that the delay has been adequately explained. The respondents did not claim that they would suffer any prejudice if an extension of time were granted and, as indicated above, there was no opposition to the extension of time. For the reasons stated below, I am satisfied that the proposed grounds of review have sufficient prospects of success to justify granting the extension of time sought: see SZUTY v Minister for Immigration and Border Protection (No 2) [2016] FCA 289 at [53]-[55] and the authorities there mentioned. Accordingly, I would grant an extension of time in which to file an application for judicial review in the form of the draft originating application for review of a migration decision amended on 2 March 2018.
Proposed grounds of judicial review
30 The three grounds of judicial review on which the applicant seeks to rely are as follows:
1. The decision of the Tribunal was affected by jurisdictional error in that the Tribunal erred in its consideration of the best interests of the child.
Particulars
(a) The applicant has a niece named MJ who was born on 1 April 2016;
(b) MJ is the daughter of the applicant’s brother CL, and his partner SM, both of whom gave evidence before the Tribunal as to, amongst other things, the relationship between the Applicant and his niece;
(c) At the date of the decision of the Tribunal, the child was in Australia, and was some 11 months old;
(d) The Tribunal was required by paragraph 13.2 of the Ministerial Direction No 65 to determine, as a primary consideration, whether or not revocation of the decision was in MJ’s best interests;
(e) The Tribunal failed to determine what was in the best interests of the child;
(f) The Tribunal failed to consider the matters set out in paragraph 13.2(4) of the Ministerial Direction.
2. The decision of the Tribunal was affected by jurisdictional error in that the Tribunal erred in taking into account, adverse to the Applicant, his conduct as a child when he was under the age of 10.
Particulars
(a) The Applicant’s representative submitted to the Tribunal that it should not take into account the conduct of the Applicant when he was under the age of 10, in Queensland;
(b) The Tribunal held that the principle of doli incapax was confined to criminal proceedings, and that this conduct could be taken into account in administrative proceedings, such as under s 501CA of the Migration Act 1958;
(c) The Tribunal also held that [it] could take the conduct into account on the basis of the criminal law concept of uncharged acts;
(d) Under s 29(1) of the Queensland Criminal Code 1899, s 4M of the Crimes Act 1914 (Cth) and s 344 of the Children, Youth and Families Act 2005 (Vic), as well as in other States and Territories, a child under 10 is not capable of committing a criminal act;
(e) The Tribunal erred in overriding and/or ignoring this well-established principle;
(f) The Tribunal erred in relying on the conduct as uncharged acts, in that the application of this principle depends on the capacity of a person concerned to be capable of committing a criminal act.
3. The decision of the Tribunal was affected by jurisdictional error in that the Tribunal erred in failing to take into account a claim that was before it.
Particulars
(a) Under the heading Extent of Impediments if removed from Australia/not permitted to return, the Tribunal incorrectly said in its reasons (at [117]) that the Applicant’s stepfather had not given evidence before the Tribunal, when in fact he had;
(b) The Tribunal incorrectly said that his attitude to return to New Zealand with his partner was not known, when in fact he had made a written statement, which was before the Tribunal, saying that he would not.
(c) The Tribunal failed to deal with a claim which was directly relevant to the exercise of the discretion, in that it was capable of amounting to another reason to revoke the decision to cancel the applicant’s visa.
Ground 1 – Best interests of the applicant’s niece
31 As stated above, by ground 1, the applicant contended that the Tribunal erred in its consideration of the best interests of a child in Australia affected by the decision, specifically, the applicant’s niece, because the Tribunal failed to determine what was in the best interests of the child. The applicant’s niece is the daughter of one of the applicant’s brothers and that brother’s partner. She was born in April 2016, shortly before the delegate made the decision under review, and was nine months old at the time of the hearing before the Tribunal.
32 The Tribunal’s only statement about the best interests of the applicant’s niece is at [100] of its reasons, where the Tribunal stated that:
If he is not permitted to remain in Australia, [the applicant] will not be a figure in his niece’s life as she will remain in Australia with her mother and [the applicant’s] brother. As she is only a few months old at this stage, I do not find that … she and [the applicant] have formed a lasting relationship. That is not to say that he and she are not capable of forming a relationship in the years to come or that [the applicant] is [not] already fond of her. What they will lose if he must leave Australia is the opportunity to form such a relationship. [The applicant’s] niece’s opportunity to see him would be limited to any trips that she makes in the future to New Zealand.
Applicant’s submissions
33 The applicant submitted that the Tribunal erred because it did not make any determination, as required by paragraph 13.2(1) of Direction No 65, as to whether or not the revocation of the cancellation decision was in the best interests of the applicant’s niece. The applicant submitted that the Tribunal made the same kind of error as in Wan v Minister for Immigration and Multicultural Affairs [2001] FCA 568; 107 FCR 133 in that it failed to apply paragraph 13.2(1) of Direction No 65. The applicant contended that the Tribunal “simply [dealt] with peripheral or practical matters which would flow from separation, from the applicant’s perspective”, and failed to consider the issue from his niece’s perspective, having regard to the evidence before the Tribunal regarding the importance of their relationship. In this context, the applicant referred to a letter from the applicant’s brother referring to the expected birth of his daughter, in which he stated that his “daughter needs her uncle … to be a big part of her life”, and oral evidence given by the child’s mother and grandmother (also the applicant’s mother) about taking the child to visit him in prison. Counsel for the applicant also drew attention to the fact that, by the end of the hearing before the Tribunal, the Minister had accepted that this “primary consideration would slightly favour the applicant”. Counsel for the applicant submitted that, even if the Tribunal did not consider that the applicant’s absence from Australia would be of any significance for the best interests of the child, it was incumbent on the Tribunal to make a finding to this effect, but “here the Tribunal hasn’t said a word about what the best interest is, and then how it’s to be weighed”. Counsel submitted that there was no discussion of a weighing process at the conclusion of the Tribunal’s reasons, because “the paragraphs … in the conclusion are really about community expectations, and about the unacceptable risk”.
34 Further, the applicant contended that the Tribunal had failed to make findings in relation to paragraph 13.2(4)(b) of Direction No 65 regarding the extent to which the applicant was likely to play a positive role in the child’s future. The Tribunal was required, so the applicant said, to engage in a forward-looking exercise to assess the likelihood that the applicant would play a positive role in his niece’s life, not simply to focus on the limited nature of their existing relationship. The applicant also submitted that, by virtue of s 499 of the Migration Act, the Tribunal was bound by Direction No 65, and that a failure to take into account a matter as required by Direction No 65 was a failure to take into account a relevant consideration.
Minister’s submissions
35 The Minister accepted that the Tribunal’s reasons did not contain any express conclusion about the best interests of the applicant’s niece. The Minister submitted in written submissions filed before the hearing, however, that, on a fair reading of those reasons, the Tribunal considered “itself unable to make a finding that revocation would, or would not, be in the best interests of the applicant’s niece”. The Minister submitted that this could be inferred from the following aspects of the Tribunal’s reasons:
(a) the Tribunal sought to address, where relevant, the factors set out in paragraph 13.2(4) of Direction No 65;
(b) the Tribunal nonetheless stated that the applicant and his infant niece had not formed any lasting relationship due to her very young age of “a few months”; and
(c) the Tribunal did not mention the relationship at all in its overall conclusions.
36 In submissions made at the hearing, counsel for the Minister put this submission a little differently, submitting that, on a fair reading of the Tribunal’s reasons, the Tribunal reached the view that the best interests of the applicant’s niece was a factor that “didn’t go either way” and that this could be inferred from:
(a) the absence of any express determination, despite the fact that the Tribunal was aware of the terms of paragraph 13.2 of Direction No 65;
(b) the fact that the Tribunal sought to deal with the information relevant to paragraph 13.2 “insofar as it could” and “still didn’t reach a concluded view”; and
(c) “the fact that when one has regard to the remainder of the decision and, in particular, the conclusions, there’s no mention of this factor”.
37 The Minister referred to the decisions in Uelese v Minister for Immigration and Border Protection [2015] HCA 15; 256 CLR 203, Paerau v Minister for Immigration and Border Protection [2014] FCAFC 28; 219 FCR 504 and Nigam v Minister for Immigration and Border Protection [2017] FCAFC 127; 254 FCR 295, in support of the proposition that a decision-maker who finds that the best interests of a child do not militate in favour of, or against, visa cancellation (or revocation of a visa cancellation) satisfies a requirement to make a determination about whether the cancellation (or the revocation) is, or is not, in the best interests of the child. The Minister submitted that these authorities showed that the Tribunal was not obliged to make a finding that revocation of the visa cancellation decision was, or was not, in the best interests of the applicant’s niece. It was permissible, so the Minister submitted, for the Tribunal to conclude that, having regard to the available evidence, the best interests of the child may be neutral in the sense that the removal of the applicant from the child’s life may, on balance, be neither here nor there.
38 At the hearing counsel for the Minister submitted that [100] of the Tribunal’s reasons (see [32] above) showed that the Tribunal had in fact considered the factors listed in paragraph 13.2(4) of Direction No 65 (see [45] below) so far as relevant. Counsel for the Minister contended that it was evident from the Tribunal’s consideration at [100] that:
(a) regarding 13.2(4)(a): the Tribunal had found that the applicant and his niece had not formed any lasting relationship due to her very young age;
(b) regarding 13.2(4)(b)-(c): there was insufficient information;
(c) regarding 13.2(4)(d): the Tribunal considered that the likely effect of separation would be that they would lose the opportunity to form a lasting relationship;
(d) regarding 13.2(4)(e): the Tribunal was plainly cognisant of the fact that the applicant’s relationship with his niece was one of an uncle, as her parents were fulfilling the parental role; and
(e) regarding 13.2(4)(f), (g) and (h): none were applicable on the materials before the Tribunal.
Consideration
39 Section 499 of the Migration Act relevantly provided:
(1) The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a) the performance of those functions; or
(b) the exercise of those powers.
…
(2) Subsection (1) does not empower the Minister to give directions that would be inconsistent with this Act or the regulations.
(2A) A person or body must comply with a direction under subsection (1).
…
40 By virtue of s 499, the Tribunal was, as the parties accepted, bound to comply with Direction No 65, in so far as it applied to the revocation of a mandatory cancellation of a visa under s 501CA. Part C of Direction No 65 dealt specifically with decisions of that kind.
41 As the Tribunal noted, paragraph 6.3 of Direction No 65 set down some general principles that were to inform the decision-making with which the Direction was concerned. Paragraph 7(1) relevantly provided that:
Informed by the principles in paragraph 6.3 above, a decision-maker:
…
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.
42 Paragraph 8 of Direction No 65 further provided that decision-makers were to take into account the primary and other considerations relevant to the individual’s case. Reaching a decision involved a weighing of the relevant considerations, as paragraphs 8(3)-(5) made clear when they stated:
(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.
43 Paragraph 13(2) of Direction No 65 provided that the primary considerations in deciding whether to revoke a visa cancellation decision were: (a) protection of the Australian community from criminal or other serious conduct; (b) the best interests of minor children in Australia; and (c) expectations of the Australian community.
44 The Tribunal in this case was therefore required to take into account, as a primary consideration, the best interests of any child affected by the decision, who in this case, so the parties accepted, was the applicant’s niece. Furthermore, paragraph 13.2(1) specifically stated that “[d]ecision-makers must make a determination about whether revocation is, or is not, in the best interests of the child”.
45 Paragraph 13.2(4) set out the factors that must be considered, “where relevant”, in making that determination, namely:
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 the 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.
46 It may be accepted that the Tribunal in this case made no express determination about whether or not revocation of the cancellation of the applicant’s visa was in the best interests of the applicant’s niece. The failure to make the determination required by paragraph 13.2(1) would be a failure to perform the statutory task that the Tribunal was required to perform; and would likely lead a court to infer that the Tribunal had failed to take into account a consideration that it was bound to take into account in arriving at its decision.
47 As the Minister submitted, however, the authorities indicate that the failure to make a determination that the revocation of a visa cancellation militates for or against the best interests of a child affected by the decision does not involve an error on the Tribunal’s part, providing the Tribunal makes a determination about whether revocation is, or is not, in the child’s best interests. A determination will be about such revocation for the purposes of paragraph 13.2(1) in a case where the Tribunal finds that revocation is a neutral factor so far as the best interests of such a child are concerned (that is, revocation militates neither for nor against the child’s best interests). Equally, it may be accepted that should the Tribunal determine that the evidence before it is insufficient to show whether or not revocation is in a child’s best interests, it will nonetheless make a determination about such revocation.
48 In Paerau there was a paucity of evidence as to whether or not a visa cancellation was in the best interests of the affected children. As regards a relevantly identically-worded clause in previous Direction No 55, Buchanan J said in Paerau at [27] that:
… there could be no objection in any case to the [Tribunal] concluding that the best interests of a child did not weigh either for or against the cancellation of a visa, so long as the available material was assessed conscientiously. That is not the same as not stating a conclusion about the issue at all. Similarly, in a case where the evidence did not permit a proper conclusion about the issue, there could be no objection to the [Tribunal] saying so, as it did in the present case.
See also at [117]-[118] per Perry J.
49 In Uelese, which also concerned Direction No 55, the Tribunal incorrectly considered that, because of the preclusionary effect of s 500(6H), evidence as to the best interests of the affected children had arrived too late to be considered by it. French CJ, Kiefel, Bell and Keane JJ in Uelese at [67]-[68] said that:
There may be cases, hopefully rare, where the evidence presented by the parties does not alert the Tribunal that minor children in Australia may be affected by the decision. There may also be cases where the evidence is such that the only determination which can be made … is that cancellation is neutral so far as the best interests of any minor child are concerned. In this regard, it is to be noted that cl 9.3(1) requires a “determination about whether cancellation is, or is not, in the best interests of the child” (emphasis added). Sometimes the best decision “about” whether cancellation is, or is not, in the best interests of the child may be that it is neither.
It is not necessary to canvass these possibilities further because the issue in this case is not whether the Tribunal failed to go far enough to discharge its obligation to conduct its review having regard to the interests of all the appellant’s children; rather, the point is that the Tribunal, by reason of its misunderstanding of the effect of s 500(6H), failed to address one of the primary considerations affecting the decision required of it. It failed to conduct the review required by the Act, and thereby fell into jurisdictional error.
50 In Nigam, which concerned a visa refusal, the Full Court observed at [40] and [43]-[44]:
In oral submissions in reply, counsel for the appellant acknowledged that, as a matter of construction, a decision-maker bound by Direction 65 may, after a conscientious consideration of the evidence, permissibly arrive at a conclusion that the best interests of a minor child may be neutral in the sense that the removal of the visa applicant from the child’s life may, on balance, be neither here nor there. The concession was a proper one. …
…
Paragraph 11.2 of Direction 65 does not require the Tribunal to make a binary choice as to what is in the best interests of the child. There may be cases in which, as the plurality [in Uelese] observed, the cancellation or refusal of a visa is neutral as far as the child is concerned. Insofar as the remarks are obiter, we respectfully agree with them and adopt them.
When a neutral conclusion is lawfully arrived at on the evidence, the primary consideration of the best interests of the chid will, strictly speaking, weigh neither for nor against the refusal of the visa. …
51 As already noted, the Minister contended that the Tribunal’s reasons included a determination that, on the evidence before it, the best interests of the applicant’s niece was a neutral factor that “didn’t go either way”, alternatively, that the Tribunal was unable to make a finding as to whether or not revocation would be in the best interests of the applicant’s niece. If this contention were correct, then no error of the kind claimed by the applicant could arise. I accept, however, that, as the applicant submitted, the present case can be distinguished from Nigam, Uelese and Paerau, because in each of those cases the Tribunal made an express determination to relevant effect. In Nigam, for example, the Tribunal stated that it was “not satisfied it is in the best interests of [the appellant’s] daughter that his visa not be refused”. Similarly, in Paerau, the Tribunal stated that:
Given the paucity of evidence, I cannot be satisfied about whether it is in the best interests of [the appellant’s] minor children for [the appellant] to remain in Australia or whether it would be in their best interests for him to be removed to New Zealand. As such, this consideration does not weigh against cancellation and, at best, is neutral.
52 In Uelese, the Tribunal stated that it was “unable to determine whether or not visa cancellation would be in the best interests” of the affected children. In that case, as indicated, the claimed evidential insufficiency arose because the Tribunal misconstrued the effect of s 500(6H) of the Migration Act as preventing it from having regard to evidence adduced orally at the hearing. The High Court held, in consequence, that the Tribunal had failed to conduct the review required by the Migration Act: see Uelese at [68] per French CJ, Kiefel, Bell and Keane JJ and at [119] per Nettle J.
53 It must be borne in mind that the Tribunal expressly mentioned the obligation in paragraph 13.2(1) and set out the entirety of paragraph 13.2(4) of Direction No 65. Further, the substance of [100] of the Tribunal’s reasons indicates that the Tribunal had regard to “the nature and duration of the relationship between the child and the non-citizen” in considering the applicant’s niece. This was the matter to which paragraph 13.2(4)(a) of Direction No 65 directed attention. The Tribunal did not explain why it did not refer to any other topic listed in paragraph 13.2(4) and/or why it did not refer again to the best interests of the applicant’s niece. As already indicated, the Minister relied on some of these circumstances in support of the proposition that, fairly read, the Tribunal considered that the revocation was neutral so far as the best interests of the applicant’s niece were concerned. As set out below, it does not seem to me, however, that any such inference can be drawn.
54 Consideration of this submission should not be limited to the matters to which the Minister referred. Rather, the Minister’s submission should also be considered by reference to these and other relevant matters, including the evidence and submissions before the Tribunal at the time.
55 There was evidence before the Tribunal about the part that the applicant’s family believed he should have in his niece’s life. In a letter before the Tribunal, the child’s father (and the applicant’s brother) stated that his daughter needed the applicant to be “a big part of her life”. There was evidence from the mother of the child, as well as the applicant’s mother that they had taken the child with them on visits to the applicant in prison, and that the applicant “love[d] and adore[d]” his niece. There was also the applicant’s evidence that if he were told he might stay in Australia, he wouldn’t do anything for a while, “just enjoy time with family”, including “try[ing] to take [his] niece for a week”.
56 On the basis of the evidence before the Tribunal, it would have been open to the Tribunal to conclude that the applicant’s family was close-knit, and that depriving the child of the opportunity to form a relationship with the applicant was not in her best interests. It has also to be borne in mind that the Minister’s representative before the Tribunal accepted that the best interests of the applicant’s niece “would slightly favour the applicant”, even though her parents were primarily responsible for the child. Of course, the Tribunal was not obliged to accept either this submission or that revocation of the cancellation of the applicant’s visa was in the child’s best interests. It would, for example, have been open to it to have considered that revocation was neutral so far as the interests of the applicant’s niece were concerned, consistently with the Minister’s contention before this Court.
57 The critical point here is that, in the present case, as Buchanan J observed in Paerau, while there could be no objection to a decision-maker concluding that “the best interests of a child did not weigh either for or against” the relevant decision, “[t]hat is not the same as not stating a conclusion about the issue at all” (at [27]). Having regard to the evidence and submissions before the Tribunal, as well as s 43(2B) of the Administrative Appeals Tribunal Act 1975 (Cth), the Minister’s submission that the Tribunal impliedly found that the best interests of the child consideration was neutral should be rejected. Section 43(2B) required the Tribunal to include in its reasons “its findings on material questions of fact and a reference to the evidence or other material on which those findings were based”. If the Minister’s submission were accepted, then it would follow that the Tribunal had failed to comply with the obligation imposed on it by s 43(2B). The difficulty here is that the Tribunal did not make an express determination about the best interests of the applicant’s niece. Furthermore, the Tribunal did not give any clear indication from which it might be inferred that the Tribunal regarded this consideration as either “slightly favouring” the applicant, as the Minister submitted before the Tribunal, or as “neutral”, as the Minister submitted in the current proceeding.
58 In these circumstances, ground 1 not only has sufficient merit to justify the extension of time the applicant sought, the ground is also made out. The Tribunal failed to comply with Direction No 65, including paragraph 13.2(1), and failed to perform its statutory task.
Ground 2 – The applicant’s conduct as a child
59 By ground 2, the applicant alleged that the Tribunal erred in taking into account, adverse to the applicant, his conduct as a child when he was under the age of 10.
Tribunal’s reasons
60 It is convenient to discuss in some detail the aspects of the Tribunal’s reasons that related to ground 2.
61 After discussing the applicant’s background, the Tribunal discussed a variety of matters, including under the headings, “Convictions as an adult” and “Offences or alleged offences committed as a child”. Under the latter heading, the Tribunal addressed the submission, on behalf of the applicant, that the Tribunal “could not have regard to offences, or alleged offences, which came to police notice when he was a child but in relation to which he was never charged”.
62 In support of this submission, the applicant relied on the common law presumption of doli incapax – incapacity for crime – according to which a child under 14 years is presumed to lack the capacity to be criminally responsible: see RP v The Queen [2016] HCA 53; 259 CLR 641 at [4]. At common law, in the case of a child between the ages of 7 and 14 years, this presumption could be rebutted by evidence that the child knew that it was morally wrong to engage in the conduct that constituted the physical elements of the offence.
63 In all Australian jurisdictions the common law presumption is now subject to statute. As the applicant and the Tribunal recognised, at the relevant time in 2003, s 29 of the Criminal Code Act 1899 (Qld) provided that:
(1) A person under the age of 10 years is not criminally responsible for any act or omission.
(2) A person under the age of 14 years is not criminally responsible for an act or omission, unless it is proved that at the time of doing the act or making the omission the person had capacity to know that the person ought not do the act or make the omission.
The conduct that came to the attention of the police when the applicant was nine took place in Queensland in that year.
64 Further, s 344 of the Children, Youth and Families Act 2005 (Vic) similarly provided at the time of the hearing in Victoria in January 2017 that:
It is conclusively presumed that a child under the age of 10 years cannot commit an offence.
65 The applicant submitted that, having regard to the law regarding criminal responsibility, the Tribunal could not have regard to the applicant’s conduct at nine years of age, because he was incapable at that age of assuming criminal responsibility.
66 The Tribunal rejected the applicant’s submission that it could not have regard to the applicant’s conduct when he was nine years of age. The Tribunal referred to this conduct as “uncharged acts”. The Tribunal reasoned as follows:
[54] These principles are relevant when a child has engaged in behaviour for which, but for his or her age, he or she may be charged with a criminal offence. That is the subject of criminal law. The matter with which I am concerned is not concerned with criminal law but with the review of the merits of an administrative decision. What relevance, if any, can I give, or weight can I place, on behaviour for which a child either may not or cannot be charged (uncharged acts)?
[55] To begin answering that question, I will return to the criminal law where there are occasions in which uncharged acts may be relevant in showing that a person, who had motivation to behave in a certain way had been prepared to act on that motivation in the past. Such evidence may be extremely prejudicial and not all evidence as to tendency to act is admissible in a criminal court. It must go further than mere propensity and have additional probative value for justifying its admission despite its prejudicial effect.
[56] Uncharged acts may also be taken into account when sentencing a person convicted of another offence. It is open to that sentencing court to have regard to circumstances of uncharged acts if it considers it fair that it should do so. The court cannot do so if those uncharged acts would have warranted a conviction for a more serious offence but may do so if they are circumstances that aggravate the offence for which the person has been convicted. So, for example, if a person has been convicted of drug trafficking, other uncharged acts of drug trafficking may be taken into account by the sentencing Judge. To do otherwise would be to suggest that the offence for which sentence is being passed is an isolated occurrence when it is not.
[57] Turning to administrative decisions, it is not the place of a decision-maker to make findings of fact regarding the culpability of a child in circumstances in which the courts are not permitted to do so in the criminal context. At the same time, an administrative decision-maker can have regard to a person’s behaviour when it is relevant to do so. In the case of a decision made under s 501(3A) of the Migration Act as to whether or not to exercise power under s 501CA to revoke a visa cancellation, behaviour both past and present is a relevant consideration. To discount it would mean that consideration would be limited to the conviction or convictions that led to the cancellation and the events leading up to it. Depending on circumstances, that might favour or work against either an applicant or the Minister. Either way, it would not enable the Tribunal to carry out its functions to review the decision refusing to revoke the cancellation and to reach the correct or preferable decision having regard to all of the principles and factors set out in the Minister’s Direction.
(Citations omitted)
67 The relevant conduct to which the Tribunal had regard is set out in the Tribunal’s reasons under the heading “Reports to police regarding [the applicant’s] behaviour as a child”. Under this heading, according to the Tribunal, it “set out the various offences and incidents in relation to which [the applicant] has been spoken by police” as a child. For present purposes, it suffices to refer only to incidents said to involve the applicant when he was nine. There were two such incidents, which the Tribunal described at [36]-[37] as follows:
Age 9: Burglary with breaking 24 April 2003
Arising out of events occurring on 24 April 2003, [the applicant] was given Behavioural Counselling for the offences of Entering Premises with Break and Unlawful Use of a Motor Vehicle at Bentley Park in Queensland. Two motorcycles had been taken from a neighbour’s unlocked garage. In the presence of his mother, [the applicant] made full admissions.
Age 9: Common Assault 3 September 2003
… the version of events given by [the applicant] in relation to events that took place on 3 September 2003 at Bentley Park and that led to his receiving Behavioural Counselling [was]:
“ … The suspect … was interviewed in the presence of his mother … [He] stated that he had asked the complainant if he could borrow his bike and the complainant said no and abused him. [He] stated that he then abused the complainant back and the complainant took a swing at him. [He] stated that he then hit the complainant because the complainant tried to hit him. [He] stated he then had a fight with the complainant during which both were hit by each other. [He] stated that his brother … then pulled him away and took him home. …”
These passages were accompanied by two footnotes to “ST documents”, being ST1 at 2-3 and ST2 at 8.
68 The Tribunal subsequently referred to these incidents at several points in its reasons, particularly at [83], [86], [87] and [120].
Applicant’s submissions
69 In his written submissions, the applicant contended that it was not open to the Tribunal to have regard to the incidents involving him that came to the attention of police when he was only nine years old. He submitted that the principle of doli incapax was of universal application. In any event, the applicant contended that the conduct could not be taken into account in this case because the decision under review was “all about criminal offending”, as was “the source of power to cancel” the applicant’s visa.
70 At the hearing, counsel for the applicant submitted that, in the present case, the Tribunal took into account “irrelevant and prejudicial material”. In this regard, counsel argued that it was evident from the Tribunal’s reasons that it treated the incidents involving the applicant as a nine-year-old child as if they were offences that had been committed, notwithstanding that there were never any charges brought against the applicant and that the incidents were never contested on their merits before a court.
71 Further, and in the alternative, the applicant submitted that the Tribunal erred in applying the principle of “uncharged acts”. He contended that characterising the applicant’s conduct as uncharged acts was inappropriate, because for uncharged acts to be taken into account in other contexts it is presumed that an offence was committed, albeit that the person has not been charged. Counsel for the applicant submitted that conduct cannot qualify as an uncharged act in circumstances where the person who engaged in it was incapable of committing a criminal offence because he was under the age of 10 at the time.
Minister’s submissions
72 The Minister submitted that it was open to the Tribunal to take into account the conduct of the applicant when he was a child on the basis that it was making an administrative decision about whether or not to revoke the cancellation of the applicant’s visa, not determining the criminal culpability of the applicant. The Minister emphasised that the Tribunal was required to comply with Direction No 65 and therefore to have regard to the protection of the Australian community, including what counsel for the Minister referred to as the “risk of harm to the Australian community in the future”. In considering this factor, so counsel submitted, the Tribunal was entitled to have regard to “the entire history” of the applicant’s past conduct, “which might reflect upon that future risk of harm”, regardless of whether or not that conduct had ever been capable of giving rise to any criminal charge or conviction.
73 Counsel for the Minister contended that there is no limit “on the nature of the conduct that might be taken into account” by the Tribunal “if it’s seen as reflecting on a person’s character”. Further, counsel submitted that the Tribunal did not regard the incidents involving the applicant’s conduct as a child as if they were offences, but simply as part of the applicant’s overall history. In this regard, counsel submitted that it is clear from the Tribunal’s decision that the Tribunal was aware that the applicant’s conduct as a child was not in the nature of criminal offending, but that the Tribunal regarded that conduct as otherwise unsatisfactory and therefore relevant to the applicant’s overall history.
74 In any event, so counsel for the Minister contended, the applicant’s conduct as a child was not “the key reason or even a significant reason”, for the Tribunal forming the view that “the applicant might represent some difficulty or danger for the protection of the Australian community going forward”. Counsel submitted that it was clear from the Tribunal’s conclusion at [119]-[120] that, in addition to his history of “offending”, the Tribunal’s decision was influenced by various other factors, including:
… the serious nature of the crime that [the applicant] committed in stabbing the Victim, his lack of application in trying to change his ways so that the risk of his repeating his behaviour was not significantly reduced and the serious outcomes that will follow if he repeats his behaviour … .
75 Counsel for the Minister further submitted that the way the Tribunal took the applicant’s conduct into account was “not unreasonable, when one has regard to the Tribunal’s consideration, ultimately, of the issue as to risk, and the fact that it was entitled to look at an overall history”. Counsel accepted that:
[I]t might be said that if a tribunal just based its whole decision on something that one did at nine, and gave that an abundance of weight, without looking at it in the context of a history of offending overall, that that would be manifestly unreasonable.
76 This was not such a case, so counsel submitted, because, although the Tribunal did take into account the applicant’s conduct as a child, it did not “do so in a way that it could be said that no reasonable decision-maker could have reached the same view on the matter before it”.
77 In relation to the applicant’s alternative submission, counsel for the Minister contended that, although the Tribunal referred to the criminal law principle of “uncharged acts”, this was not the basis for the Tribunal’s decision. In this regard, counsel said that it was evident from the Tribunal’s reasons that it did not pursue that line of reasoning but instead turned to consider whether the Tribunal could have regard to the applicant’s conduct as a child in the context of reviewing an administrative decision.
Consideration
78 The Minister’s response to the applicant’s case under ground 2 turned in part on the proposition that the Tribunal did not treat the incidents involving the applicant at nine years of age as instances of criminal offending. Rather, so the Minister submitted, the Tribunal treated them merely as incidents of poor conduct to be considered as part of the applicant’s history in Australia.
79 It must be accepted that the Tribunal recognised that under the criminal law of Queensland and of Victoria, criminal responsibility could not attach to a child under 10 years of age. The Tribunal also recognised that the relevant statutory provisions were essentially restatements of the common law presumption of doli incapax, although both provisions raised the age of criminal responsibility from the common law age of 7 to 10. This might have led the Tribunal to avoid attributing a criminal dimension to the incidents in which the then nine-year-old applicant was said to be involved. As the Minister noted, the Tribunal’s description of “the offences and incidents”, including in 2003 when the applicant was nine, were given under the relatively neutral heading “Reports to police regarding [the applicant’s] behaviour as a child”.
80 Seeking to read the Tribunal’s reasons fairly and as a whole, and in conformity with the approach approved in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259, I am unable to accept the Minister’s submission. It seems to me that, when read as a whole, it is apparent that the Tribunal had regard to the incidents involving the then nine-year-old applicant as instances of offending, or transgressions of the criminal law, even though the events had not, and could not, be the subject of a charge and criminal proceeding. The considerations that lead me to this conclusion are set out below.
81 First, there was the Tribunal’s discussion of the applicant’s submission on this topic, which was in fact headed “Offences or alleged offences committed as a child”.
82 Also indicative of the Tribunal’s characterisation of the applicant’s nine-year-old conduct as criminal offending was the fact that, when the Tribunal specifically asked itself about the relevance and weight that it could attach to the applicant’s behaviour as a child, it referred to this behaviour as “uncharged acts”. Even acknowledging that under the criminal law not all uncharged acts may “be sufficiently specific to found a charge” (see HML v The Queen [2008] HCA 16; 235 CLR 334 at [129] (Hayne J); Johnson v The Queen [2018] HCA 48; 360 ALR 246; 92 ALJR 1018 at [20]), the Tribunal’s question would imply that, subject perhaps to a limitation of that kind, the conduct with which the Tribunal was concerned was of a kind capable of supporting a charge for a criminal offence: compare Johnson v The Queen at [20], where the High Court commented that “uncharged act evidence adduced as propensity evidence … is seldom of a kind … radically different from charged act evidence”. This impression is confirmed by the fact that, immediately after this, the Tribunal went on to mention the evidentiary use of uncharged acts in the context of trials for criminal offences.
83 Further, although the Tribunal did not say that the criminal law notion of “uncharged acts” was directly relevant to its own task, nonetheless its discussion of uncharged acts can be seen to feed into the way the Tribunal framed its own reasoning. This may be discerned in part from the Tribunal’s statement to the effect that, while it was not its place “to make findings of fact regarding the culpability of a child in circumstances in which the courts are not permitted to do so in the criminal context”, it “can have regard to a person’s behaviour when it is relevant to do so”, as it considered it was in the applicant’s case. The Tribunal’s rationale for taking into account “uncharged acts” in administrative decision-making was effectively the same as the rationale it had identified in relation to the use of uncharged acts in sentencing: that an administrative decision, like a sentence, should not be determined on a limited basis that had regard only to the conviction and the events leading to it.
84 As noted already, the applicant argued that there was jurisdictional error because of the Tribunal’s consideration of the applicant’s supposed conduct as a nine-year-old since this was not a matter that it was open to the Tribunal to consider as it did. To assess this argument, it is necessary to look at the statutory basis for the Tribunal’s decision.
85 The decision under review raised the question whether or not there was “another reason” why the cancellation decision should be revoked under s 501CA(4)(b)(ii) of the Migration Act. Save for the operation of s 499 of the Migration Act, this was an otherwise very general question, the ambit of which would only have been confined by limitations to be implied from the scope and purpose of the Act and the subject-matter to be decided: compare Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40 (Mason J). As already stated, however, Direction No 65, made pursuant to s 499, further controlled the decision-making under s 501CA(4)(b)(ii), including on the Tribunal’s review. A former visa-holder’s present and past conduct was of relevance to at least some of the considerations to which Direction No 65 directed the decision-maker’s attention.
86 As noted above, by virtue of paragraph 13(2) of Direction No 65, a primary consideration in deciding whether to revoke a visa cancellation decision was the protection of the Australian community from criminal or other serious conduct. Paragraph 13.1(2) required decision-makers, in considering the protection of the Australian community, to 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.
87 Relevantly, paragraph 13.1.1(1), headed “The nature and seriousness of the conduct”, provided that the decision-maker was to have regard to a number of factors in considering the nature and seriousness of the non-citizen’s criminal offending or other conduct. These factors included:
…
d) The frequency of the non-citizens offending and whether there is any trend of increasing seriousness; [and]
e) The cumulative effect of repeated offending;
…
Paragraph 13.1.2(2)(b) further provided that, in considering the risk to the Australian community, decision-makers were required to have regard to “[t]he likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending”.
88 Neither paragraph 13.1.1(1) nor paragraph 13.1.2(2) confined its attention to criminal conduct; “other serious conduct” was also relevant. This might suggest that there was no jurisdictional error of the kind for which the applicant contended.
89 The difficulty with the Tribunal’s analysis in this case is not that it determined to place some weight on the applicant’s conduct as a nine-year-old child but that it ultimately treated the two incidents involving the applicant as a nine-year-old as if part of a pattern of criminal offences, a matter of potential relevance to paragraphs 13.1.1(1)(d) and (e), as well as paragraph 13.1.2(2)(b). In neither case could the applicant have borne criminal responsibility for what he did, however; and, in consequence, neither incident could properly be seen as part of a pattern of criminal offending.
90 When the Tribunal turned to consider the nature and seriousness of the applicant’s conduct, as required by Direction No 65, it not only considered the offence that had precipitated the cancellation of his visa, but also “the reports of [the applicant] having exhibited violent behaviour begin[ning] with an offence of assault against another child when he was nine years of age” (at [83]; emphasis added). The “offence of assault” was a reference to the childish dispute about borrowing a bike, set out at [67] above, in which the then nine-year-old applicant had purportedly hit another boy after the other boy had taken a “swing” at him.
91 Subsequently, in considering the risk to the Australian community, the Tribunal referred to the incident that gave rise to his conviction leading to visa cancellation as “part of a pattern that started when he was a child” and which “reflect[ed] a pattern of aggression” (at [86]; emphasis added). The Tribunal emphasised its finding that there was such a pattern with its comment immediately thereafter (at [87]) that:
When he was nine years of age, [the applicant] was involved in what could be ignored as a spat with another boy had it been an isolated incident. It was followed, however, by an incident when he was 15 years when he had threatened to kill both his mother and his stepfather and assaulted his mother.
92 At [97] the Tribunal distinguished the applicant’s “offences, or alleged offences, and incidents” as a child from those as a 17-year-old, in its statement that “[h]aving regard only to those that have been reported since he attained the age of 17 years, [the applicant’s] behaviour has shown a trend of behaviour that is uncontrolled in its outcome whether that is directed at people or property”. Yet in its conclusion at [120], in relation to the likelihood of further criminal conduct, the Tribunal emphasised that:
[The applicant’s] history of offending began when he was only nine years of age and had only been in Australia for two years or so. Therefore, while it can be said that most of his formative years have been spent in Australia, it can also be said that he brought the foundations of his offending behaviour with him. … The risk of his repeating his behaviour is at an unacceptable level given the serious consequences that would follow should he repeat it.
(Emphasis added)
93 In the result, the Tribunal referred to the applicant’s “offences” at nine years of age, a “pattern … that started when he was a child” (at [86]) and, in concluding, stated (at [120]) that the applicant’s “history of offending began when he was only nine years of age”. The Tribunal’s characterisation of his involvement with the police at nine years of age as criminal “offending” is further supported by the Tribunal’s statement (at [120]) that the applicant “brought the foundations of his offending behaviour with him” from New Zealand when he arrived in Australia as a child.
94 Having regard to the language used by the Tribunal in its reasons, and to its analysis and reasoning overall, the Tribunal’s references to the applicant’s “offending” as a child cannot be read as simply references to “unsatisfactory” conduct, as the Minister would have it. “Offending” in the Tribunal’s reasons signified transgressions of a criminal nature, even though, as the Tribunal acknowledged, the applicant had been too young to bear criminal responsibility. This is consistent with the Tribunal’s reference (at [54]) to “behaviour for which a child either may not or cannot be charged” as “uncharged acts” and to the accompanying discussion in its reasons (at [55]-[56]) about the relevance and admissibility of uncharged acts, referred to earlier.
95 The Tribunal’s consideration of the incidents involving the applicant as a child was irrelevant to any escalating seriousness of offending because the applicant could not have been relevantly “offending” as a nine-year-old child. In treating the applicant’s conduct as a nine-year-old, described in its reasons at [36]-[37] as “Burglary with breaking” and “Common Assault”, the Tribunal failed to have regard to the fundamental policy of the criminal law regarding the criminal responsibility of young children, who under the age of 10 are deemed not to be responsible for any criminal act, regardless of its seriousness. In RP v The Queen at [8], Kiefel, Bell, Keane and Gordon JJ explained that:
The rationale for the presumption of doli incapax is the view that a child aged under fourteen years is not sufficiently intellectually and morally developed to appreciate the difference between right and wrong and thus lacks the capacity for mens rea.
(Citation omitted)
96 Generally speaking, to disregard in administrative decision-making such a long-established and fundamental common law presumption, mediated today by statute and based on an entrenched and accepted rationale, would be bad as a matter of public policy: compare R v Whitty (1993) 66 A Crim R 462 at 462-463 (Harper J); R v L (1994) 16 Qld Lawyer Reps 27 at 28 (Judge McGuire); R v ALH [2003] VSCA 129; 6 VR 276 at [72] (Cummins AJA, with whom Batt JA relevantly agreed); BP v The Queen [2006] NSWCCA 172 at [27] (Hodgson JA, with whom Adams J and Johnson JA agreed); R v Cheng [2015] SASCFC 189 at [14] (Sulan and Peek JJ); Bronitt S and McSherry B, Principles of Criminal Law (3rd ed, 2010) at 171; Freckelton I and Andrewartha D, Indictable Offences in Victoria (5th ed, 2010) at 23; Crofts T, “The Criminal Responsibility of Children” in Young L, Kenny M A and Monahan G (eds), Children and the Law in Australia (2nd ed, 2017) at 157-158. It is improbable that, without specifically indicating such an intention, the legislature intended that this long-accepted presumption of the criminal law should be set at nought by an administrative tribunal in its appraisal of a person’s criminal offending, since this would have the tendency to undermine the policy which it protects: compare Minister for Immigration and Multicultural Affairs v SRT [1999] FCA 1197; 91 FCR 234 at [40]-[45].
97 The position is different where the language, context and purpose of legislation shows that the presumption is not intended to affect the operation of the Act in question. Field v Gent (1996) 67 SASR 122, which was mentioned by the Minister, is distinguishable because the governing statute in that case (the Criminal Injuries Compensation Act 1978 (SA)), specifically showed, by its definition of “offence”, that the legislative policy under that Act was to allow compensation to victims of certain behaviours even though the perpetrator, then aged 10 years, was subject to the (rebuttable) presumption that he could not commit an offence: see Field v Gent at 128. BNB v Victims of Crime Assistance Tribunal [2010] VSC 57; 27 VR 425, also mentioned by the Minister, is another example where the legislation (the Victims of Crime Assistance Act 1996 (Vic)) evidenced an intention, there by its definition of “criminal act”, to require courts and tribunals to disregard the principle of doli incapax and its associated presumption: see BNB at [35]. This case is also clearly distinguishable from the present.
98 Further, the alleged incidents of “Burglary with breaking” and “Common Assault” were never contested before a court: no plea was ever entered, no witnesses were called, and no conviction was recorded. The material on which the Tribunal relied in relation to these incidents was apparently drawn from police service files from 2003. ST1 and ST2 were documents entitled the “Solicitors Office Report Details”, which appeared to contain police reports or records of some description. The applicant suggested, and the Minister did not deny, that the documents were obtained by the Minister’s legal representatives under subpoena, and provided to the Tribunal as the documents were not before the decision-maker who made the decision under review. The identity of the person or persons compiling the material was not disclosed; and, given that the matter could not proceed to court, the reliability of its contents was unascertained. Although some of the material referred to “admissions” made by the then nine-year-old applicant, it is generally accepted that such purported admissions should be treated cautiously as they may not be reliable. In its Report No 84, the Australian Law Reform Commission stated that it should not be assumed that statements made, or recorded as made, by young children in the presence of police and parents are reliable: see Australian Law Reform Commission, Report No 84: Seen and heard: priority for children in the legal process (1997) at 14.21, 14.25-14.26, 14.30. In such circumstances, there was error in treating the material in these records as if it established that the applicant had committed the criminal offences of “Burglary with breaking” and “Common Assault”, since there was “no logical connection between the evidence and the inferences or conclusions drawn”: see Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at [135]. This further supports the finding of jurisdictional error set out below: see SZMDS at [132].
99 I reject the Minister’s submission that the applicant’s conduct as a nine-year-old child was not a significant part of the Tribunal’s decision. This argument is difficult to reconcile with the prominence of the references to this conduct in the Tribunal’s reasons, including in the Tribunal’s conclusion. As already stated, by commencing its consideration of the escalating pattern of seriousness of offending at a time when the applicant could not, by law, be attributed with criminal responsibility, the Tribunal focussed on a consideration that was irrelevant to that supposed pattern. Evidence of the conduct of the applicant at nine years of age was, for the same reason, incapable of providing a logical basis for the Tribunal’s statement that the applicant’s “history of offending” began at this young age. Yet the Tribunal’s conclusion at [120] indicated that the identification of such a pattern and history of offending was an important element in the Tribunal’s decision-making. This is borne out by the fact that such an approach was in apparent conformity with Direction No 65: see [86]-[89] above.
100 This does not mean that, on review of a decision not to revoke a visa cancellation decision under s 501CA(4)(b)(ii), the Tribunal cannot take into account evidence about a former visa holder’s conduct as a child. Rather, it is to say no more than that evidence of that conduct must have some relevance to an issue that properly arises in the course of the Tribunal’s decision-making and that there must be some logical connection with the inferences or conclusions that the Tribunal then draws from that evidence. It might be thought that in such a case the Tribunal would treat such evidence cautiously, acknowledging the limits of the material before it that was said to evidence such conduct, including its cogency and reliability.
101 For the reasons stated above, however, in this case, in elevating the applicant’s conduct as a nine-year-old child to criminal offending, the Tribunal took into account a consideration that was irrelevant to his supposed pattern and history of offending, and provided no logical connection with the findings and conclusions the Tribunal made in that regard. Jurisdictional error was thereby disclosed, whether viewed as the consideration of irrelevant matters (as the applicant argued) or as an aspect of legal unreasonableness: compare SZMDS at [132], [135]; Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 at [76]; Minister for Immigration and Border Protection v Eden [2016] FCAFC 28; 240 FCR 158 at [64].
102 For the reasons stated, ground 2 is not only of sufficient merit to justify the extension of time sought by the applicant, it also discloses jurisdictional error.
Ground 3 – Claim regarding the applicant’s stepfather
103 By his third ground, the applicant claimed that the decision of the Tribunal was affected by jurisdictional error in that the Tribunal erred in failing to take into account a claim that was before it. The applicant’s stepfather gave evidence that he would not accompany the applicant’s mother to New Zealand if the applicant were removed from Australia. At the hearing, counsel for the applicant submitted that the Tribunal had overlooked this evidence and that this evidence “was effectively part of the applicant’s claim as to why he would have difficulties in New Zealand”.
104 This ground arose from a statement made by the Tribunal at [117] of its reasons. Under the heading “Extent of impediments if removed from Australia/not permitted to return”, the Tribunal there stated that:
There is no evidence that [the applicant’s] brothers or their families would return to New Zealand. [The applicant’s] stepfather was not called to give evidence and so I do not know whether he would go to support his wife in her endeavours to support her son. His mother has said that she would return to him. She holds grave concerns for her safety as her former partner has threatened her with physical violence. I accept her evidence that she would face very serious physical violence if he were to find her in New Zealand.
(Emphasis added)
105 It was common ground that the Tribunal was incorrect in stating that the applicant’s stepfather had not given evidence before the Tribunal. The applicant’s stepfather in fact made a written statement, which was before the Tribunal, in which he said, “[i]n terms of me moving to New Zealand, it is not an option as my life is here. I have my family here”. He also gave oral evidence at the Tribunal hearing, although his evidence with respect to this particular matter was very general. When asked what would happen to the family unit if the applicant were deported, he answered:
I honestly would only be guessing but I think that we would never be the same again. No family would be complete without having every member of the family together.
106 The applicant submitted that the Tribunal’s error was more than an error of fact. The applicant submitted that the matter was relevant to paragraph 14.5(1)(c) of Direction No 65. Paragraph 14 concerned “Other considerations” relevant to revocation requests. By virtue of this paragraph, a decision-maker was required to take into account “other” considerations “where relevant”, including, pursuant to paragraph 14(1)(e), “Extent of impediments if removed”. Paragraph 14.5(1) of Direction No 65, headed “Extent of impediments if removed”, relevantly provided that this consideration concerned:
The extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards … , taking into account:
…
c) Any social, medical and/or economic support available to them in that country.
…
107 Counsel for the applicant emphasised that the Tribunal was “very sympathetic to” the applicant’s mother’s position, because the Tribunal apparently accepted her evidence that she would feel compelled to return to New Zealand with her son if he were removed from Australia, thereby placing herself within reach of her former partner, who had previously subjected her to severe domestic violence and abuse. Counsel submitted that, had the Tribunal appreciated that in addition to this, the applicant’s removal would likely sever the mother’s long-standing relationship with her Australian partner, it may have reached a different decision. The applicant submitted that this was “effectively part of the applicant’s claim as to why he would have difficulties in New Zealand”. Referring to Schuster-McFadyen v Minister for Immigration and Citizenship [2011] FCA 1303; 124 ALD 68 at [32], the applicant submitted that the effect that his removal would have on his mother and stepfather’s relationship was capable of being given equal or more weight than a primary consideration.
108 Counsel for the Minister did not accept that the alleged impact on the applicant’s mother and stepfather if the applicant were removed from Australia was a consideration the Tribunal was required to take into account. He did not accept that this consideration fell within Direction No 65. Referring to [108]-[109] of the Tribunal’s reasons, counsel for the Minister further submitted that, even if it were a mandatory relevant consideration, it could not be said that the Tribunal had failed to take this consideration into account. Counsel submitted that the Tribunal’s reasoning reflected its view that, whatever the stated intention of the applicant’s mother and stepfather, the final decision had yet to be made by them.
109 The Tribunal’s reasons contained an evident mistake of fact in [117], where it was incorrectly stated that the applicant’s stepfather was not called to give evidence. Coupled with this mistake was the Tribunal’s further statement that on this account it did not know whether the applicant’s stepfather would accompany his wife to New Zealand if the applicant were removed and his mother went there with the applicant. As already indicated, the applicant linked these matters to paragraph 14.5(1)(c) of Direction No 65. For present purposes, it may be accepted that ground 3 raised matters of sufficient merit and concern to justify the grant of the extension of time sought by the applicant.
110 Ground 3 would not, however, support a finding of jurisdictional error. First, in the circumstances of the applicant’s case, I doubt that the possibility that his removal from Australia to New Zealand would have an adverse effect on his mother’s relationship with her partner was a matter that fell within paragraph 14.5(1)(c). I am not, therefore, persuaded that this consideration was one that the Tribunal was obliged to take into account in making its decision.
111 Secondly, the Tribunal was, as the Minister submitted, clearly cognisant of the very real prospect that removing the applicant from Australia could adversely affect the applicant’s mother and stepfather’s relationship. It is evident from the Tribunal’s reasons at [108]-[109] that the Tribunal took this possibility into account in reaching its decision. In those paragraphs the Tribunal relevantly stated:
[108] … For the purposes of this case, I accept [the applicant’s] mother’s evidence that she was the subject of severe domestic violence and abuse by her sons’ father. She does not wish to return to New Zealand as she does not wish to place herself in danger from her former partner. At the same time, she feels that she must return to be with her son even if he is not permitted to remain in Australia. That is so even if she must leave her other sons and her partner behind in Australia.
[109] … If [the applicant’s] mother is in New Zealand, her partner will need to decide whether he should be there or in Australia. There is a risk that the family will be fractured by [the applicant] not being permitted to remain in Australia.
(Emphasis added)
112 The Tribunal’s error of fact did not disclose jurisdictional error, and it would appear that that error could not have affected the Tribunal’s decision in any event. I am inclined to accept that, as the Minister submitted, the Tribunal considered that irrespective of any presently stated intentions, the final decision as to who, if anyone, would accompany the applicant, and as to other associated matters, had yet to be made. In any case, the Tribunal was evidently well aware that if it affirmed the decision under review, then there was a real risk that the applicant’s mother would accompany the applicant to New Zealand while her partner (and other sons) remained in Australia.
Disposition
113 For the reasons stated, the Court would grant the extension of time that the applicant sought and since it has found there was jurisdictional error of the kind identified in grounds 1 and 2, the Court would also order that the decision of the Tribunal made on 23 February 2017 be set aside; and the matter be remitted to the Tribunal, differently constituted, to be determined according to law. The first respondent should pay the applicant’s costs of and in connection with the proceeding, as agreed or assessed.
I certify that the preceding one hundred and thirteen (113) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny. |
