FEDERAL COURT OF AUSTRALIA

Vu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1808

ORDERS

THE COURT ORDERS THAT:

1.    The application is dismissed.

2.    The applicant pay the first respondent’s costs.

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

REASONS FOR JUDGMENT

BURLEY J:

1.    INTRODUCTION

1    The applicant, Hung Vu, is a citizen of Vietnam aged 40 who first arrived in Australia in 1998 at the age of 19 and has resided here since then. He was granted a Spouse visa in December 2000 and subsequently a Resident Return visa in March 2017. He has a history of criminal offending, including convictions for offences relating to being in possession of stolen property, common assault, the supply of prohibited drugs, drink driving, and the breach of an apprehended violence order (AVO).

2    On 26 February 2018, Mr Vu was issued with a Notice of Intention to Consider Cancellation (NOICC) of his visa under s 501(2) of the Migration Act 1958 (Cth) to which he responded. On 12 December 2018, a delegate of the first respondent (Minister) cancelled Mr Vu’s visa under s 501(2) of the Act.

3    On 16 January 2019, Mr Vu applied to the Administrative Appeals Tribunal for a review of the delegate’s decision, and on 4 April 2019 the Tribunal affirmed the delegate’s decision to cancel the visa: Vu and Minister for Home Affairs (Migration) [2019] AATA 635.

4    Mr Vu then filed an application under s 476A of the Act in this Court, seeking a declaration that the Tribunal fell into jurisdictional error in its decision, and an order that the decision of the Tribunal be quashed. The final form of the Originating Application for Review contains the following two grounds:

(1)    The Tribunal erred in finding at [23] that the applicant had admitted to the Tribunal that he had threatened his wife when there was no evidence to support it and that error materially contributed to the decision to cancel the Applicant's visa.

(2)    The Tribunal’s decision was illogical, irrational and/or unreasonable because it did not properly balance the relevant considerations under Direction 79.

5    Mr Vu was represented pro bono in this Court by Mr Boyle of counsel, who filed written submissions in advance of the hearing. The Minister was represented by Ms Graycar of counsel, who also filed written submissions.

2.    THE DECISION OF THE TRIBUNAL

6    After summarising background matters concerning Mr Vu’s history since his arrival in Australia, the Tribunal identified the issues for determination as being whether the Tribunal reasonably suspected that Mr Vu did not pass the character test, and how the discretion to cancel the revocation should be exercised under s 501(2) of the Act.

7    The Tribunal proceeded to consider the framework provided by Ministerial Direction 79, which decision-makers must follow when determining whether or not a person passes the character test pursuant to s 501(6) of the Act, and when exercising their discretion in deciding whether or not to cancel a person’s visa. In considering whether Mr Vu passed the character test, the Tribunal first noted that s 501(6) stipulates that a person will not pass the character test if they have a substantial criminal record, which a person has if they have been sentenced to a term of imprisonment of 12 months or more (s 501(7)(c)).

8    The Tribunal then at [17] set out a summary of Mr Vu’s criminal record by reference to his National Police Certificate, which addressed offences up until 4 November 2013. Between November 2001 and September 2003, he was sentenced for committing five criminal offences involving receiving stolen property, being in possession of goods reasonably suspected of being stolen, theft, and a failure to answer bail granted. Convictions were not recorded for these offences, other than for an offence of having goods suspected of being stolen on a premises, for which he received a conviction and a 5 year good behaviour bond. In October 2003, Mr Vu was sentenced to 18 months imprisonment for handling/receiving/retaining stolen goods. In April 2006, Mr Vu was convicted of four counts of shoplifting, and received a 9 month sentence of imprisonment. In 2010, Mr Vu was convicted of common assault, and for mid-range drink driving. He received an 18 month sentence of imprisonment, suspended on a good behaviour bond, and then a 12 month home detention sentence for the two common assault offences. In 2013, Mr Vu was sentenced to 3 years and 6 months imprisonment for supplying a commercial quantity of a prohibited drug. The Tribunal noted that Mr Vu was also convicted for the breach of an AVO in 2018 and for drink driving in 2019 after the National Police Certificate in the evidence was issued, and after he had received the NOICC.

9    The Tribunal determined that Mr Vu did not pass the character test as he has a substantial criminal record as defined under s 501(7)(c), noting that Mr Vu conceded as much.

10    The Tribunal then turned to consider whether to exercise its discretion to cancel Mr Vu’s visa. The Tribunal identified the protection of the Australian community from criminal or other serious conduct as “Primary Consideration A” in the exercise of its discretion pursuant to Direction 79.

11    In the first paragraph of its consideration of Primary Consideration A, the Tribunal said the following:

[23]    As noted above, the applicant has been convicted of multiple offences throughout the period of his residence in Australia. The Tribunal considers the offences to be quite serious, particularly the offences involving violence towards others, as well as drug offences which resulted in a significant term of imprisonment. Although the applicant claims his offending was not violent, the Tribunal is mindful that the applicant had been convicted of an assault, has been issued with an AVO and has admitted to the Tribunal that he had made threats to his wife.

12    The Tribunal then examined the nature of Mr Vu’s offending. In relation to his offences from 2001 until 2006, the Tribunal acknowledged that the offending was of a less serious nature and did not involve violence, although noted its frequent nature was concerning. The Tribunal stated that it considered Mr Vu’s conduct in committing the drug supply offence in 2013 to be serious. The Tribunal noted that the circumstances of Mr Vu’s common assault conviction in 2010 involved him physically striking and kicking the victim several times. The Tribunal then went on to consider the circumstances surrounding Mr Vu’s breach of an AVO in 2018:

[27]    The applicant states that other than the 2009 incident, he does not have a history of violence and there has been no further violence since that incident. However, as noted above, the applicant has been issued with an AVO in 2018 and he was convicted of the breach of an AVO and stalking / intimidation. The applicant’s oral evidence to the Tribunal is that there were two occasions when the police was [sic] called to his home, that on one occasion during an argument with his wife, he broke her fan and he also admits that during another argument he threatened to burn his wife’s possessions. The applicant also admitted in oral evidence that he threatened his wife’s co-worker during the incident in July 2018. In the Tribunal’s view, such threats may also be considered as violent conduct and conduct intended to cause fear. The Tribunal does not accept the applicant’s argument that he does not have a history of violence. The applicant concedes that he makes ‘bad choices’ when he consumes alcohol.

[28]    The Tribunal considers the nature and seriousness of the conduct to be significant. The assault offence, and the domestic violence conduct, involves violence or threat of violence towards others. Direction 79 states at paragraph 9.1.1(b) that in considering the nature and seriousness of the criminal offending, the decision-maker must have regard to the principle that crimes of a violent nature against women or children are viewed very seriously regardless of the sentence imposed.

…

[31]    In relation to the breach of the AVO and the intimidation / stalking offences, the applicant explains in his submission to the delegate of 21 September 2018 and his declaration that his relationship with his wife ended in June 2018 and his wife left him, taking the child. He was charged with intimidation of his wife and an AVO was granted which prohibited him from approaching his wife. The applicant went to his wife’s place of work to ask her about their daughter and a worker called the police. The applicant states that the breach of the AVO was not violent in nature but involved him going within 100 metres of his wife’s place of work to ensure about their child. The Tribunal accepts that this incident may not have involved violence, although the police report indicates that some threats may have been made.

13    The Tribunal also explained that Mr Vu’s estranged wife (who is variously referred to in the decision as his “former wife”, “former partner” and “Ms N”) gave oral evidence to the Tribunal that Mr Vu cannot control himself when he is angry or drinks, and that she was “a little afraid” of him. The Tribunal considered Mr Vu’s conduct that adduced the fear in his wife to be serious.

14    The Tribunal was not persuaded by Mr Vu’s evidence that he had reformed since committing his offences and that there was a low risk he would reoffend, given that he had made similar claims in relation to an earlier NOICC and had given an undertaking not to re-offend, which he subsequently broke. It was similarly unpersuaded that the presence of his wife and child, or his relationship with these family members, would minimise the risk of Mr Vu committing further offences or engaging in other serious misconduct, given that he had breached the AVO in relation to his wife.

15    Overall, it found that the frequency and cumulative effect of Mr Vu’s criminal conduct was a matter of serious concern, and that the risk to the Australian community should he commit further offences was significant, given the serious nature of past offences and the fact that some of the offences included violence or threats of violence towards others. The Tribunal found that Primary Consideration A weighed in favour of the cancellation of Mr Vu’s visa.

16    The Tribunal then turned to consider Primary Consideration B as identified in Direction 79, being the best interests of minor children in Australia. The Tribunal noted that Mr Vu has a young daughter in Australia born in 2015, and that he has been involved in all major decisions in her life and in supporting her and helping look after her since birth. He provided documentary evidence of his relationship with his daughter, including photographs, records of financial support and a number of statements.

17    The decision records that Mr Vu told the Tribunal that he and his wife had entered into a Parenting Plan in 2018 for the care of his daughter following their separation, which allowed him to see his daughter regularly and to participate in her upbringing. He said to the Tribunal that his wife has no family in Australia and nobody to help her care for the child, and he was more experienced than his wife in looking after the child. Mr Vu argued that he was a joint carer of his daughter.

18    The Tribunal accepted Mr Vu’s evidence regarding the relationship with his daughter, and said the following:

[47]    …The Tribunal accepts that the applicant has developed, and maintains a close relationship with his daughter and that he has played a meaningful role in his daughter’s upbringing. The Tribunal accepts that the applicant has provided financial support to the child. The Tribunal is prepared to accept that the applicant is willing to play a positive parental role in the future. The Tribunal also accepts that at the time when the applicant did have access to his daughter, he acted as a caregiver to his daughter, although the Tribunal is mindful that there were periods when the applicant had [no] access to his daughter.

[48]    The Tribunal has had regard to the psychological report of Mr Green. Mr Green outlines the applicant’s circumstances and the reasons for the offending, sets out the risk factors for re-offending and the effect that the separation from his daughter may have on the applicant. Having regard to that evidence, the applicant’s own evidence about his relationship with his daughter, the evidence of the applicant’s former spouse and other materials, the Tribunal accepts that the applicant has a close relationship with his child and provides parental guidance and support to her. The Tribunal accepts that it is in the best interest of the applicant’s minor child to maintain that relationship. The Tribunal accepts that the best interests of the child weigh against the cancellation of the visa. The Tribunal acknowledges that it is a primary consideration and has given it considerable weight.

19    After finding that Primary Consideration B weighed in Mr Vu’s favour, the Tribunal considered Primary Consideration C, the expectations of the Australian community, and found that Mr Vu’s conduct did not meet those expectations.

20    The Tribunal then turned to address the “Other Considerations” set out in paragraph 14(1) of Direction 79 that decision-makers must consider in the exercise of their discretion. In relation to the impact of Mr Vu’s departure on victims, the Tribunal said the following:

[66]    The applicant’s former spouse expressed fear as a result of the incident when the applicant approached her place of work. Police reports show that she has expressed fear in relation to other incidents leading to the separation. There is little other evidence before the Tribunal concerning the impact on victims.

21    In relation to the extent of impediments that Mr Vu would face if removed from Australia, the Tribunal accepted that it would have an adverse impact on him and his daughter if he was to be removed, although it considered it was possible that his daughter may be able to visit him in Vietnam. The Tribunal did not accept that Mr Vu would face poverty if returned to Vietnam, despite his contentions otherwise. However, the Tribunal considered that overall, Mr Vu may find it difficult to re-establish is life in Vietnam, and would face significant impediments if removed from Australia.

22    The Tribunal relevantly concluded as follows:

[74]    The Tribunal accepts that the best interests of the applicant’s child require the applicant’s presence and ongoing relationship with the child in Australia. The Tribunal acknowledges that it is a primary consideration and the Tribunal gives this significant weight in favour of the applicant. However, that does not necessarily mean that the decision must be made in favour of the applicant.

[75]    The Tribunal also accepts that that there may be a significant impediment to the applicant if removed, as the applicant has spent a very lengthy period of time in Australia and has established his life here. The Tribunal accepts that the applicant has substantial ties in Australia and there is evidence of community support. The Tribunal also accepts that the applicant’s departure from Australia may cause hardship to his daughter and his former wife, who has no other family support in Australia and who relies on the applicant financially and with the child’s upbringing. These are strong factors that support a finding that a cancellation should be set aside.

[76]    However, against these considerations, the Tribunal has formed the view that expectations of the Australian community would be in favour of the cancellation, despite the applicant’s links to Australia and despite the presence of his child here. This is because the applicant has committed serious offences in Australia and his offences are numerous. Despite the warning the applicant received when the possibility of the visa cancellation was first raised with him, and despite his undertakings to change, the applicant continued to re-offend. The Tribunal has formed the view that the applicant has a substantial disregard of the Australian law, which he has displayed throughout the period of his stay in Australia. The applicant continued to offend after the birth of his daughter and after the second NOICC was issued, when the applicant was fully cognisant of the potential implications of his conduct. In the particular circumstances of this case, the Tribunal has formed the view that the expectations of the community would be in favour of the cancellation and that is also a primary consideration.

[77]    In terms of the protection of the Australian community, the Tribunal rejects the applicant’s claim that he would not re-offend or there is little chance of him re-offending. The Tribunal places weight on the fact that the applicant made the same undertakings in response to the first NOICC and these were supported by his treating psychologist, yet the applicant committed serious crimes since that time. Despite the applicant’s claim that his present circumstances are different because he no longer drinks, does not gamble and has a close relationship with his daughter, the Tribunal does not accept the applicant’s claims given that he has made the same undertakings in the past and has not complied with these. The Tribunal does not accept that the chance of the applicant reoffending are insignificant. The Tribunal has formed the view that there is a real likelihood of the applicant reoffending or engaging in other serious conduct. Given the frequency of the offending and the violent nature of some of the offences, the Tribunal considers that the risk of reoffending is considerably more than negligible. If such offending occurs, it poses a risk to the community. The Tribunal has formed the view that protection of the Australian community would be in favour of the cancellation.

[78]    There is little information before the Tribunal about the impact on Australian businesses and on the victims. The Tribunal has found that Australia’s non-refoulement obligations would not be breached as a result of the cancellation.

3.    THE STATUTE

23    Section 501 of the Act relevantly provides:

(1)    The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.

  (2)    The Minister may cancel a visa that has been granted to a person if:

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

(b)    The person does not satisfy the Minister that the person passes the character test.

24    Accordingly, before the discretion in s 501(2) is engaged, the decision-maker must be satisfied that the visa holder does not pass the character test, which is set out in s 501(6). For present purposes it is unnecessary to refer to the detail of that test, because Mr Vu accepts that he does not pass it by reason of s 501(6)(a) as a result of the fact that he has been sentenced to a term of imprisonment of 12 months or more within the definition of “substantial criminal record”: s 501(7)(c).

25    A decision under s 501 is a privative clause decision pursuant to s 474(2) of the Act. This Court has jurisdiction under s 476A of the Act to grant the relief sought, if jurisdictional error on the part of the Tribunal is established.

4.    CONSIDERATION

4.1    Ground 1 – no evidence of an admission

26    In ground 1, Mr Vu contends that the Tribunal made an error of fact in finding at [23] that he had admitted to threatening his wife. He submits that no evidence supports that finding, and the error materially contributed to a central aspect of the reasoning of the Tribunal insofar as it concerned Primary Considerations A and C. Mr Vu submits that the absence of evidence in relation to the admission serves to undermine the exercise of the Tribunal’s discretion such that the Tribunal exercised its discretion to cancel his visa on an erroneous footing, by proceeding on the basis that the conduct in breach of the AVO was more serious than it was. As a consequence, in deciding adversely to Mr Vu, the Tribunal misconceived what the exercise of the statutory power entailed and its decision was a purported but not real exercise of the power conferred by the Act. In support of his submission, Mr Vu relies on Re Patterson; Ex parte Taylor [2001] HCA 51; 207 CLR 391 at [196] (per Gummow and Hayne JJ).

27    The passage criticised by Mr Vu appears in the section of the Tribunal’s reasoning addressing the first of the primary considerations, being the protection of the Australian community. After reciting paragraph 9.1 of Direction 79, the Tribunal notes that Mr Vu has been convicted of multiple offences in Australia and that it considers them to be quite serious, particularly those involving violence to others and drugs. The criticised reference at [23] is: “Although the applicant claims his offending was not violent, the Tribunal is mindful that the applicant had been convicted of an assault, has been issued with an AVO and has admitted to the Tribunal that he had made threats to his wife.”

28    The meaning of this part of [23] must be considered in the context of the reasons as a whole. At [27] the Tribunal provides a more detailed summary of the evidence, recording that Mr Vu contended that he had no history of violence since the 2009 assault (for which he was convicted in 2010). The Tribunal rejects that contention, noting his evidence that during arguments with his wife he had broken a fan and in relation to another argument, it reports an admission that he had threatened to burn her possessions. It also notes his admission that he threatened her co-worker in July 2018. The Tribunal records its view that “such threats may also be considered violent conduct and conduct intended to cause fear” and rejects Mr Vu’s argument that he does not have a history of violence. It is to that conduct that the Tribunal refers at [28] when it finds that “[t]he assault offence, and the domestic violence conduct, involves violence or the threat of violence towards others”, the “others” being either his wife or her co-workers.

29    That reasoning is reinforced in the final sentences of [31], which is repeated below:

...The applicant states that the breach of the AVO was not violent in nature but involved him going within 100 meters of his wife’s place of work to ensure [sic, enquire] about their child. The Tribunal accepts that this incident may not have involved violence, although the police report indicates that some threats may have been made.

30    At [32] the Tribunal records the evidence of Mr Vu’s wife that she is still afraid that he may do something bad if he is angry and that she is ‘a little afraid’ of him. It expresses the view that any conduct that causes another person to be fearful for their safety and well-being is serious.

31    These passages indicate that the Tribunal characterises the conduct identified in [27], of Mr Vu breaking his wife’s fan, and threatening to burn her possessions as “threatening behaviour” that it considered to be violent conduct and conduct intended to cause fear. No challenge is made to the findings of fact, including as to the admissions recorded, as set out in [27].

32    I have considered the evidence before the Tribunal given by Mr Vu. The transcript reveals that in cross-examination he accepted that when his wife had left him and taken their child, he had contacted her and said that she needed to return home or he would continue to call her and her friend until she did. That evidence may aptly be described as admission that he threatened to continue to call his wife. Mr Vu also accepted in cross-examination that his wife had obtained the AVO against him because he had been harassing her through either phone calls or text messages, and that she was concerned about his behaviour after he had been drinking.

33    The following passage of cross-examination is also relevant:

...Okay. So would I be correct in saying that you breached the AVO both by turning up at her place of work and, according to the facts that the police presented you made a threat to one of her co-workers, saying, “If you continue to let her stay at your house I won’t leave you in peace?” --- Yes.

34    These passages together indicate that the Tribunal was justified in making a factual finding that Mr Vu had admitted to it that he had made threats to his wife. It is true that these were threats in the form of harassment in the form of telephone calls and text messages, and a threat to a co-worker, rather than of physical violence to his wife, but the finding as to admissions that is the subject of the ground does not refer to threats of physical violence.

35    Accordingly, proper consideration of the reasoning of the Tribunal yields the conclusion that there was no error in the statement at [23] that Mr Vu had made threats to his wife or that he had admitted to making those threats. That is sufficient to resolve ground 1 in favour of the Minister. A “no evidence” ground of review will not be made out unless it is established that there was “no evidence, or other material, to justify the findings of fact made”; see, for example MZZYE v Minister for Immigration and Border Protection [2015] FCA 1378 at [54] (Murphy J).

36    Furthermore, the Tribunal had before it other evidence concerning the making of threats by Mr Vu to his wife. In this regard, a record dated 9 June 2018 by the police concerning their attendance at an incident between Mr Vu and his wife indicates that Mr Vu was verbally abusive to her and threatened that if she did not bring his daughter to him immediately, he would burn all of his wife’s belongings. In oral evidence, his wife confirmed that Mr Vu had made that threat and that she was at the time afraid, because he had damaged her property in the past and that when he got angry he could not control himself and damaged things. Accordingly, there was, separately to any admission made by Mr Vu, evidence before the Tribunal to support the finding at [23] and also at [27] to the effect that he had made threats to his wife. These matters compel the conclusion that even had Mr Vu established error as to whether he had admitted to making a threat, that error would not have been material in the sense required; see Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 93 ALJR 252 at [4], [46] (per Bell, Gageler and Keane JJ). Accordingly, ground 1 must be dismissed.

4.2    Ground 2 – reasoning illogical, irrational or unreasonable for failure to properly balance relevant considerations under Direction 79

37    In ground 2 Mr Vu contends that the Tribunal’s decision was illogical, irrational and/or unreasonable. He submits that the Tribunal’s reasons were infected by jurisdictional error in this form because it was incumbent on the Tribunal, in order that it approach its task reasonably, to understand the totality of the evidence bearing on the matters that Direction 79 required it to consider, and also not to adopt a formulaic approach to the application of the discretion conferred on it and as required to be exercised pursuant to Direction 79.

38    The matters that Mr Vu relies on traverse much of the reasoning of the Tribunal. He first contends that having regard to the evidence concerning the effect of his deportation upon his infant daughter, the only conclusion reasonably open would be that it would likely be a crushing blow to him and his estranged wife and his family, but the Tribunal’s reasons do not reveal any appreciation of these matters. Secondly, he contends that the Tribunal overlooked the evidence put forward by his estranged wife, in support of the non-cancellation of his visa, in concluding that there was little other evidence (beyond that of the fear expressed by his estranged wife) concerning the impact on victims. Thirdly, Mr Vu submits that the Tribunal’s reasons do not reflect a proper reasoning process as to why it sometimes accepted his evidence on some matters but rejected it in respect of others, which it characterised as “mere assertions”. Fourthly, he contends that the Tribunal’s reasons do not reveal that it properly understood the evidence of his criminal conduct in expressing its conclusion at [77], where it said:

The Tribunal has formed the view that there is a real likelihood of the applicant reoffending or engaging in other serious conduct. Given the frequency of the offending and the violent nature of some of the offences, the Tribunal considers that the risk of reoffending is considerably more than negligible...

39    Mr Vu submits that this is not an accurate summary of his offending having regard to the evidence that he was only convicted of one assault in 2010, that this was temporally remote from the Tribunal’s decision and that since his daughter was born in 2015, he has not engaged in violent conduct. Furthermore, having regard to the Tribunal’s findings at [28] and [31], Mr Vu submits that the conclusion at [44] set out below, was not based on a proper understanding of the evidence:

The Tribunal considers the risk to the Australian community, should the applicant commit further offences or engage in other serious conduct, to be significant, give the serious nature of past offences and the fact that some of the offences included violence or threats of violence towards others. The Tribunal has formed the view that protection of the Australian community weighs in favour of the cancellation of the applicant’s visa.

40    There is no dispute as to the relevant principles applicable in order to establish jurisdictional error for failure to exercise a discretionary power reasonably. The concept of legal unreasonableness concerns the lawful exercise of power. The Court’s task in determining whether a decision is vitiated for legal unreasonableness is strictly supervisory. It does not involve a merits review of a decision. In assessing whether a particular outcome is unreasonable it is necessary to bear in mind that within the boundaries of power there is an area of ‘decisional freedom’ within which a decision-maker has a genuinely free discretion and where reasonable minds may differ as to the correct decision or outcome. The width and boundaries of that area is to be determined by evaluating the nature and quality of the decision by reference to the subject matter, scope and purpose of the relevant statutory power and the relevant principles and values of the common law applicable to reasonableness in decision-making: see generally Minister for Immigration and Border Protection v Eden [2016] FCAFC 28; 240 FCR 158 (Allsop CJ, Griffiths and Wigney JJ) at [58] – [64].

41    Crennan and Bell JJ explained in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at [135] that:

… A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn…

42    Having regard to these matters of principle, and the breadth of the decisional freedom conferred having regard to the scope and purpose of s 501 of the Act and considerations in Direction 79, in my view Mr Vu has not demonstrated jurisdictional error on the part of the Tribunal, either in relation to any of the individual matters to which he has referred in his submissions, or collectively.

43    The matters to which Mr Vu draws attention may be characterised as a profound disagreement with the outcome of the reasoning of the Tribunal, but they do not give rise to a conclusion that it has fallen into jurisdictional error. Plainly, the Tribunal takes into account the effect that his deportation would have on his daughter (Primary Consideration B). In so doing, it concludes at [48] that Mr Vu has a close relationship with her and that he provides parental guidance and support to her. It finds that the best interests of the child weigh against the cancellation of the visa. In this regard, Mr Vu’s partner gave oral and written evidence in support of his case. In the context of giving consideration to the impact on victims of his criminal behaviour within paragraph 10.4 of Direction 79, the Tribunal finds at [67] that his wife expressed fear as a result of the incident where he approached her place of work and fear to police arising from other incidents leading to their separation. Mr Vu submits that the Tribunal overlooked the evidence put forward by his wife that she gave in support of him remaining. However, that evidence focussed on the benefit to their daughter of the visa not being cancelled, a factor that the Tribunal found weighed in his favour. The oral evidence she gave supports the finding of the Tribunal as to the fear that she experienced. Mr Vu points to no aspect of the evidence given by his wife to indicate that the finding concerning the impact on the victim of his conduct was incorrect. The oral evidence indicates the contrary. Finally, Mr Vu’s criticism of the characterisation by the Tribunal in [77] and [44] of the nature of his criminal conduct does not withstand scrutiny. These paragraphs take account of the “frequency of the offending and the violent nature of some of the offences” in concluding (in [77]) that the risk of reoffending is “considerably more than negligible”. As I have noted in my review of ground 1, at [27] of its reasons the Tribunal characterised the behaviour of Mr Vu as making threats to both his wife and her co-workers as “violent conduct and conduct intended to cause fear”. It rejects his submission that he has no history of violence. The police record identifies that in addition to the circumstances that led to the AVO (which involved yelling at his wife and her colleagues), in 2010 he was convicted of assault.

44    Having regard to the reasoning of the Tribunal, and the evidence to which it had regard, in my view Mr Vu has not established that the conclusions reached were illogical or unreasonable in the sense that they were simply not open on the evidence, or that there is no logical connection between the evidence and the inferences or conclusions drawn: SZMDS at [135]. Nor do I consider that the reasoning reflects a conclusion reached that is sufficiently lacking rational foundation, or an evident or intelligible justification, or in being plainly unjust, arbitrary, capricious, or lacking common sense having regard to the terms, scope and purpose of the statutory source of the power, such that it cannot be said to be within the range of possible lawful outcomes as an exercise of that power; cf Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 at [11] (Allsop CJ, Griffiths and Wigney JJ). Whilst the temporal gap between the assault conviction in 2010 and the circumstances surrounding the breach of the AVO in 2018 may lead other decision-makers’ to the conclusion that there was not a more than a negligible risk of re-offending, in my view those findings were open on the evidence and were not lacking the requisite logical foundation. Nor, to the extent that it may be considered to be a separate head of legal unreasonableness, in my view does the reasoning of the Tribunal amount to a mechanical formulaic expression hiding a lack of the necessary reflection upon the whole of the human consequences of the decision in the manner criticised by Allsop CJ in Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; 364 ALR 423 at [44] – [47].

45    Accordingly, ground 2 must be dismissed.

5.    DISPOSITION

46    The application is dismissed with costs.

Associate:

Dated:    4 November 2019