FEDERAL COURT OF AUSTRALIA

Minister for Home Affairs v Stowers [2020] FCA 407

ORDERS

THE COURT ORDERS THAT:

1.    A writ of certiorari issue to quash the decision of the second respondent dated 19 September 2019.

2.    The matter be remitted to the second respondent, differently constituted, for determination according to law.

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

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

REASONS FOR JUDGMENT

YATES J:

INTRODUCTION

1    The first respondent, Junior Stowers (the respondent), is the holder of a Class TY Subclass 444 Special Category (Temporary) visa. He is a citizen of New Zealand who arrived in Australia on 16 September 2005, at the age of 19.

2    On 23 December 2016, his visa was cancelled pursuant to s 501(3A) of the Migration Act 1958 (Cth) (the Act) because a delegate of the applicant, the Minister for Home Affairs (the Minister), was satisfied that the respondent did not pass the character test in that he had a substantial criminal record within the meaning of s 501(6)(a) of the Act and that, at the time of the decision, he was serving a sentence of imprisonment on a full-time basis in a custodial institution for an offence against the law of the Commonwealth, a State or a Territory (the cancellation decision).

3    On 25 January 2017, the respondent applied under s 501CA(4) of the Act for revocation of the cancellation decision. On 9 August 2017, the then Assistant Minister made a decision, personally, not to revoke that decision. The respondent sought judicial review. He was ultimately successful, and the matter was remitted to the Minister for reconsideration according to law: Stowers v Minister for Immigration and Border Protection [2018] FCAFC 174; 265 FCR 177.

4    On 26 June 2019, a delegate of the Minister again made a decision not to revoke the cancellation decision. The respondent then applied to the second respondent, the Administrative Appeals Tribunal (the Tribunal), to review that decision (the non-revocation decision).

5    On 19 September 2019, the Tribunal made a decision to set aside the non-revocation decision and, in substitution for that decision, made a decision that the cancellation of the respondent’s visa (i.e., the cancellation decision) be revoked.

6    The Minister now seeks judicial review of the Tribunal’s decision.

The Tribunal’s Decision: overview

7    The Minister may revoke a cancellation decision if satisfied that the person passes the character test or that there is another reason why the cancellation decision should be revoked. Before the Tribunal, the respondent accepted that he had a substantial criminal record within the meaning of s 501(6)(a) of the Act and did not pass the character test. Therefore, the question before the Tribunal was whether it was satisfied that there was another reason why the cancellation decision should be revoked.

8    In its Decision Record, the Tribunal set out the relevant legislation and policy applicable to the respondent’s case, including the requirements of Direction 79 made pursuant to s 499 of the Act. The Tribunal noted that it was required to take into account (to the extent that they were relevant) three primary considerations which, generally, should be given greater weight than other considerations (with any one or more of those considerations given more weight than any other primary consideration). The primary considerations are:

(a)    Protection of the Australian community;

(b)    Best interests of minor children in Australia; and

(c)    Expectations of the Australian community.

9    The Tribunal noted other considerations that were potentially relevant to its review: Australia’s international non-refoulement obligations; the strength, nature and duration of the respondent’s ties to Australia; the impact of non-revocation of the cancellation decision on Australian business interests; the impact of non-revocation of the cancellation decision on the Australian community, including victims of the respondent’s criminal offending and their family members; and the extent of impediments faced by the respondent should he be removed from Australia.

10    After referring to the respondent’s extensive criminal record (which need not be repeated here), the Tribunal noted that the respondent’s former partner, present partner, aunt and various other people with whom he had had contact in recent times, had given evidence to the Tribunal which was supportive of the respondent; of his determination to reform; of the genuineness of his attempts in recent times to reform; and of the respondent’s positive law-abiding attitude to the future. The Tribunal remarked:

35.    It is relevant to state that there is a distinct advantage in being present to hear and see witnesses give evidence. This advantage is particularly keen in the present matter where judgements must be made about facts based upon evidence given by individuals. I had such an advantage in this matter and I am thoroughly satisfied that the Applicant was both genuine and determined in his desire to be a law-abiding citizen in the future. That is, of course, not an end to the matter by any means and related issues will be discussed in more detail when assessing considerations required by the Tribunal in this case.

11    As to protection of the Australian community, the Tribunal found:

43.    The Applicant has, in the past, committed offences of violence which relate to vulnerable people. These are properly regarded as serious. It is, however, also relevant to consider the actual sentences which have been imposed. Those sentences demonstrate a moderate level of seriousness of offending. It is the Tribunal’s view that the Applicant has committed offences with an increasing level of seriousness, however, that is ameliorated, to some extent, by the fact that although there were incidents in immigration detention, the views expressed by many who have had more recent contact with the Applicant, and taking into account the psychologists’ views, the Tribunal is prepared to accept that the Applicant has made substantial changes to his attitude to offending during his period of custody and detention. Although it is never possible to predict the likelihood of re-offending with any certainty, on the objective facts, the Tribunal was prepared to accept that the Applicant represents a relatively low risk to the Australian community in the future. This view, which the Tribunal has formed, is based upon those many and varied witnesses called on behalf of the Applicant who gave evidence favourable to his growth and maturity and his change in attitude to offending. It is the Tribunal’s own view, having seen the Applicant give evidence, that he is both genuine in his desire to change and that, in fact, he has demonstrated a palpable change in attitude and behaviour making it less likely that he is someone who will commit criminal offences in the future. The Tribunal concludes that he is at relatively low risk to the Australian community in the future.

12    As to the best interests of minor children in Australia, the Tribunal found:

44.    The Tribunal considers that the best interest of each child in this case is served by having a relationship with the Applicant being present with them in Australia. A long-distance relationship supported by telephone communication or other technology is far less satisfactory. The Tribunal accepts the evidence that the Applicant has had, and continues to have, a deep and loving relationship with his children and vice versa. The youngest child of course, has had little opportunity to bond with the Applicant because of his detention and because of the child’s young age. It is undoubted, in the Tribunal’s view, that the Applicant will be able to continue a highly satisfactory and appropriate relationship with all three children. This, the Tribunal considers, to be a very weighty consideration in all the matters the Tribunal is required to consider. The evidence has established, having regard to the list of matters required to be considered by the Tribunal within Primary Consideration 2, that the Applicant has formed a loving relationship with his children and will continue to support that appropriate relationship with his children. The Tribunal considers this a particularly important factor and gives great weight to this consideration in its overall assessment of all matters required.

13    As to the expectations of the Australian community, the Tribunal found:

47.    The many matters which are herein discussed which are in favour of the Applicant’s case do not, however, outweigh the prima facie position or displace the prima facie position that the expectations of the Australian community would weigh against the Applicant and the Tribunal takes this position into account in its overall assessment.

14    The Tribunal then turned to consider the strength, nature and duration of the respondent’s ties to Australia; the impact of the non-revocation decision on the respondent’s victims; and the extent of the impediments that will be faced by the respondent should he be removed from Australia.

15    As to the first of these matters, the Tribunal noted that the respondent had an Australian citizen partner, and Australian citizen children. One of these was by his former partner. The other two were by his present partner. The Tribunal found that the respondent had a satisfactory relationship with his former partner and some limited connection with family in Australia, as well as friends who were well-disposed towards him. The Tribunal noted that the respondent had lived in Australia for a considerable time.

16    As to the second of these matters, the Tribunal found that the respondent’s partner and former partner had given evidence that they wanted the respondent to remain in Australia. There was no other relevant evidence from victims. The Tribunal regarded the evidence of the partner and former partner as “understandably partisan” and said that it placed no weight on their views.

17    As to the third of these matters, the Tribunal noted that the respondent’s mental health had been assessed by two psychologists. The Tribunal concluded that, on the evidence before it, there did not appear to be any real impediments that would be faced by the respondent should he be removed from Australia and returned to New Zealand.

18    The Tribunal concluded:

51.    Although there are a number of objective facts to which the Respondent quite rightly refers to in detail in its submissions which point to visa refusal, nonetheless, although the Tribunal is cognisant of the seriousness of the offences for which the Applicant has been convicted and the possibility that the Applicant represents a risk of offending in the future (albeit, in the Tribunal’s view, a low risk) should the Applicant remain in Australia, the Tribunal considers that the overwhelming consideration in this case is the best interests of the minor children based upon the Tribunal’s acceptance of all those relevant evidentiary matters referred to in Primary Consideration 2. This consideration so outweighs all other considerations that would suggest that the Applicant should be removed to New Zealand that the Tribunal has come to the conclusion that the original decision should be revoked.

The Grounds of review

19    The Minister’s originating application contains two grounds, expressed as follows:

1.     The Tribunal failed to carry out its statutory task of review in accordance with law by failing to take into account mandatory relevant considerations, specifically the matters set out in Ministerial Direction 79 (Direction 79), with which, pursuant to s 499(2A) of the Migration Act 1958 (the Act), it was required to comply in exercising its review function.

1.1.     The Tribunal erred by failing to consider the matters set out in Clause 6.3(3), and Clause 13.1.1(b) and (c) of Direction 79 about the seriousness of, and expected consequences of, the commission of crimes of a violent nature against women or children (see Tribunal's Reasons for Decision (Reasons) at [39]; [43]).

1.2.     The Tribunal failed to consider clause 13.1.2(1)(a) of Direction 79 and did not address the nature of the harm to the Australian community should the applicant reoffend.

1.3.    The Tribunal failed to consider the matters set out in clause 13.2(4) in relation to the factors that must be considered when making an assessment as to the best interests of minor children in Australia.

2.     The Tribunal erred in the conduct of its statutory review function in the manner identified by the Full Court in Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431 at [38], by failing to consider/respond to a number of submissions made by the first respondent.

2.1.     The Tribunal failed to respond to submissions made by the first respondent about the matters set out in Clause 13.2(4)(a)−(e) of Direction 79, and their application to the evidence that was before the Tribunal.

2.2.    The Tribunal failed to address the submission of the first respondent about the (limited) weight that should be attributed to conclusions in a psychologist’s report when the witness was not made available for cross examination.

2.3.     The Tribunal failed to respond to submissions made about the seriousness of the applicant's offending, including references to Direction 79, Clauses 6.3(3) and Clause 13.1.1(b) and (c).

2.4.     The Tribunal failed to respond to submissions made about the seriousness and relevance of the applicant's admitted history of assaults while in immigration detention.

20    It will be appreciated that these grounds are directed to the Tribunal’s treatment of two of the primary considerations which Direction 79 required the Tribunal to take into account: the protection of the Australian community and the best interests of minor children in Australia.

Ground 1

Introduction

21    Direction 79 is binding on the Tribunal in its decision-making. As with other Ministerial Directions given under s 499 of the Act, a failure by the Tribunal to comply with Direction 79, or to make a decision based on an incorrect understanding of it, would be an error going to the exercise of the Tribunal’s jurisdiction: Salahuddin v Minister for Immigration and Border Protection [2013] FCAFC 141 at [21] (Flick J); Suleiman v Minister for Immigration and Border Protection [2018] FCA 594; 74 AAR 545 at [31]. Whether or not the Tribunal has complied with a Ministerial Direction is a question of fact which is usually determined by the Court undertaking a close analysis of the decision-maker’s reasons: Minister for Immigration and Citizenship v Khadgi [2010] FCAFC 145; 190 FCR 248 at [71]; Malek Fahd Islamic School Limited v Minister for Education and Training (No 2) [2017] FCA 1377 at [43].

22    Relevantly to the present case, para 6.2(3) of Direction 79 directs attention to Part C thereof for the factors that must be considered in making a revocation decision. I have already referred to the fact that the Tribunal addressed itself to three primary considerations. In order to understand Ground 1 of the Minister’s application, it is necessary to give more detailed consideration to some of the directions given in Direction 79 with respect to the protection of the Australian community, and the best interests of minor children in Australia, and as to how the Tribunal dealt with, or arguably failed to deal with, those directions.

Protection of the Australian community

23    Paragraph 13.1(1) of Direction 79 deals with the protection of the Australian community:

When considering protection of the Australian community, decision-makers should have regard to the principle that the government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Mandatory cancellation without notice of certain non-citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.

24    Paragraph 13.1(2) specifies that decision-makers should consider two matters: first, the nature and seriousness of the non-citizen’s conduct “to date”; secondly, the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct. The second of these matters is stipulated in para 13.1(2)(b) and is necessarily forward-looking in its application.

25    As to the first of these matters (the nature and seriousness of the conduct to date), para 13.1.1(1)(b) states that decision-makers 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 …

26    This requirement alludes to para 6.3 of Direction 79 which sets out the “principles” that provide the framework within which decision-makers should approach the task (here) of exercising the discretion under s 501CA to revoke a mandatory cancellation of a visa. Paragraph 6.3(3) is of particular relevance to the present case:

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

27    Paragraphs 6.3(3) and 13.1.1(1)(b) are of particular relevance to the present case because the respondent’s numerous convictions include assaults involving domestic violence against his former partner (in 2011) and his present partner in (2016).

28    As to the second matter addressed in para 13.1(2) (risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct), para 13.1.2(1) provides:

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

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

b)    the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).

29    These mandatory considerations are necessarily forward-looking.

Best interests of minor children in Australia

30    Paragraph 13.2(1) of Direction 79 requires a decision-maker to make a determination about whether revocation of the cancellation decision is in the best interests of a relevant child or relevant children. Paragraph 13.2(4) provides:

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

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

b)    The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;

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

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

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

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

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

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

The Minister’s submissions

31    The Minister’s case is that the Tribunal failed to have regard to a number of mandatory considerations, either inadvertently or through misunderstanding the requirements of Direction 79.

32    The Minister submits, firstly, that the Tribunal failed to apply the principle in para 13.1.1(1)(b) that crimes of the violent nature against women or children are viewed very seriously, regardless of the sentence imposed. This submission is based on drawing inferences from certain parts of the Tribunal’s Decision Record, to which I now turn. As the Minister put it in oral submissions: what do omissions from the Tribunal’s reasons in its Decision Record tell us about what the Tribunal did in this case?

33    At [33], the Tribunal referred to the respondent’s criminal history as involving convictions for 19 offences in Australia between 2008 and 2016, together with burglary offences in 2004 in New Zealand. The Tribunal noted that the respondent had accepted his criminal history and expressed his remorse, which the Tribunal accepted as genuine. At [38], the Tribunal referred to the “2016 offences” without further elaboration other than to state that they were “certainly serious and involved three innocent parties, including his partner”. These offences are described in more detail in the delegate’s decision (at [17] – [20]):

17.    On 22 July 2016 Mr STOWERS was convicted in the Local Court of New South Wales at Gosford of Assault occasioning actual bodily harm (dv) and Assault occasioning actual bodily harm and was sentenced to 14 months imprisonment, with a non-parole period of nine months, for each offence. He was also convicted of Common assault (dv), Armed with intent commit indictable offence and stalk/intimidate intend fear physical etc harm (personal), receiving sentences of imprisonment for five months, seven months and six months respectively. Mr STOWERS lodged an appeal which resulted in the head sentence being confirmed, but reduction of the non-parole period to six months.

18.    I have considered sentencing remarks related to Mr STOWERS’ convictions of 22 July 2016. The offences arose from an incident which took place in the home of Mr STOWERS and his de facto partner Ms [A]. At the time of incident Ms [A] was 33 weeks pregnant and at home with Mr STOWERS and their 17 month old son, along with Ms [A’s] sister, [B], and her boyfriend Mr [C]. On 26 April 2016 Mr STOWERS remonstrated with Mr [C] for wearing some of his clothing, grabbed a metal baseball bat and swung it, hitting Mr [C] to the back of the head and arms. Ms [A] and [B] were also struck by the bat when they attempted to intervene and stop Mr STOWERS.

19.     Mr STOWERS was disarmed of the bat, but then grabbed a 60cm knife and threatened to kill Mr [C] stating ‘I am going to kill you, leave the house, now I'm going to kill you’. Mr [C] fled the house. As a result of the assault, Mr [C] suffered five lumps to his head, two of which bled, and a fractured arm. Ms [B] suffered bruises, swelling to the right side of her forehead and four lumps on her head.

20.    I have regard to the remarks made by the Judge upon hearing Mr STOWERS’ appeal on 9 August 2016 that the offences were ‘horrendous’ and what occurred was ‘an act of unmitigated and continuing violence’ and I consider this an apt description of the offending.

34    The sentencing judge’s remarks were before the Tribunal. Relevantly, his Honour said:

The difficulty I have with the case is its objective seriousness. What occurred on this night is an act of unmitigated and continuing violence, swinging a baseball bat at individuals in the premises, in the kitchen late at night, in a fury resulting in fractures and injuries to the main victim and the collateral damage to the person he loves and her sister. Them just trying to intervene to help him. They are horrendous offences and they kept going. Once the bat was ripped from him he still wanted to kill the fellow and grabbed a knife to give effect. It must have been a terrifying experience for everyone involved.

35    In discussing the “2016 offences”, the Tribunal said that they should be viewed in the light of the reports of two psychologists. The psychologists did not give oral evidence at the Tribunal hearing. As to the reports, the Tribunal said:

36     The Applicant has seen two psychologists, one in 2016 (Dieter) who expressed a positive view for the Applicant’s rehabilitation and opined that “the incident (in 2016) seems to confirm his impulsivity, rather than being indicative of a criminal disposition”.

37     In 2019, a contemporary report was provided by Cinar who noted, in relation to the Applicant’s background, that “being repeatedly sexually abused may have formed the background for the emergence of this problem and further concluded that the Applicant met the criteria for complex post-traumatic stress disorder”. The psychologist, in assessing the risk of future offending, said that Mr Stowers presented with protective factors that may subjugate the likelihood of reoffending. The psychologist further opined that, given the reported relationship he has at present, together with the family’s support, the Applicant’s risk of re-offending may be further reduced. The Tribunal accepts the opinions of both psychologists.

36    The Tribunal did not discuss the Dieter report beyond noting, and accepting (at [38] of the Decision Record), its finding about the respondent’s impulsivity. The Tribunal noted the conclusions in the Cinar report about the existence of certain protective factors (which, in this proceeding, the Minister described as the “mitigating factors”) but did not refer to the fact that the respondent nevertheless fell within the medium to high risk range for reoffending or the fact that the protective factors on which the Tribunal relied would only be brought into play if the respondent continued his abstinence with alcohol and substance abuse, and considered treatment for his Complex Posttraumatic Stress Disorder.

37    At [39] of the Decision Record, the Tribunal referred to other offences committed by the respondent, including an assault involving his former partner in 2011. The Tribunal noted that the respondent’s former partner chose not to report the offending. The Tribunal continued:

… It is in the Tribunal’s view an example of the tumultuous relationship the parties enjoyed. It did not, however, in the Tribunal’s view, involve any great length or level of violence even although the victim was a female known to the Applicant. The fact that the ex-partner of the applicant chose not to report the offending and further that her explanation in evidence before the Tribunal as to the detail of the offending leads the Tribunal to conclude that it was not, overall, a particularly serious offence.

38    At [43] of its Decision Record (quoted at [11] above), the Tribunal reasoned that, although the respondent had committed offences of violence relating to “vulnerable people” that were properly regarded as “serious” offences, it was also relevant to consider the sentences that had been imposed. The Tribunal found that these sentences demonstrated “a moderate level of seriousness of offending”. When, in this paragraph, the Tribunal was referring to “vulnerable people”, I take it to be referring to the respondent’s former partner, his present partner and, perhaps, the two other named victims of the “2016 offences”: cf paras 6.3(3) and 13.1.1(1)(c) of Direction 79.

39    The Minister submits that the inference (that the Tribunal failed to apply the principle in para 13.1.1(1)(b)) can be drawn from:

(a)    the fact that, in its reasons, the Tribunal did not refer to the precise conduct that underpinned the “2016 offences” and seemed to downplay their seriousness by accepting that they were the consequence of impulsivity rather than criminal disposition; and

(b)    the fact that the Tribunal also seemed to downplay the seriousness of the domestic violence offence in 2011 by referring to it as “an example of the tumultuous relationship the parties enjoyed”, and by commenting that it did not “involve any great length of violence even though the victim was a female known to the [respondent]”.

40    Further, the Minister submits that, at [43] of its Decision Record, the Tribunal relied on the sentences imposed on the respondent to conclude that his offending was merely a “moderate level of seriousness”, thereby failing to take into account the clear principle expressed in para 13.1.1(1)(b) that a crime of violence against women is to be taken “very seriously, regardless of the sentence imposed”.

41    Secondly, the Minister submits that the Tribunal failed to consider para 13.1.2(1)(a) of Direction 79, which specifically required the Tribunal, as decision-maker, to have regard to the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct. The Minister submits that, even though the Tribunal found (at [43]) that the respondent represented “a relatively low risk to the Australian community in the future”, it was nevertheless necessary for the Tribunal to consider the nature of the harm that might be suffered should the respondent engage in further criminal or other serious conduct. Put shortly, the Tribunal could not avoid its obligation under para 13.1.2(1)(a) simply because it assessed the risk as “relatively low”.

42    Thirdly, the Minister submits that, although the Tribunal certainly had regard in a general way to whether revocation of the cancellation decision would be in the best interests of his minor children in Australia (particularly in light of the Tribunal’s findings at [44] of its Decision Record), the Tribunal failed to address a number of submissions made by the Minister in relation to certain factors referred to in para 13.2(4) and thereby failed to have regard to those factors, which were mandatory considerations. This submission is related to Ground 2.

43    In this connection, the Minister submits that the Tribunal failed to deal with the following matters in its reasons:

(a)    there had been long periods of absence or limited meaningful contact and there was an apprehended violence order, as well as an investigation by the Department of Family and Community Services, which were clearly in evidence and were the subject of extensive submissions by the Minister (para 13.2(4)(a));

(b)    the extent to which the respondent was likely to play a positive parental role (para 13.2(4)(b));

(c)    the impact of the respondent’s conduct and whether it would have a negative effect on the children (para 13.2(4)(c));

(d)    the effect of separation of the children including whether there were other ways to maintain their contact. Although the Tribunal stated that a long distance relationship was “far less satisfactory”, the Minister had submitted that the Tribunal ought to consider the limited contact that the respondent had had with his children (in particular, the two younger children) and also the evidence of his partner that she had considered moving to New Zealand to be with the respondent (para 13.2(4)(d)); and

(e)    whether there are other persons who already fulfil a parental role in relation to the children (para 13.2(4)(e)).

Consideration

44    The Tribunal was obliged to follow Direction 79 when exercising its discretion to determine whether to revoke the cancellation decision. I am satisfied that, in coming to its decision, the Tribunal did not follow the direction given in para 13.1.1(1)(b).

45    That direction required the Tribunal to view the 2016 offences, and the 2011 offence against the respondent’s former partner, very seriously. I can only think that the words “very seriously” were chosen advisedly in drafting Direction 79. These words are not some flourish of the pen. There was no discretion reposed in the Tribunal to view the offences in some lesser or different light. But this is what the Tribunal did.

46    First, the Tribunal referred to the 2016 offences as “serious”, not “very serious”. The respondent submitted that the omission of the word “very” in the Tribunal’s characterisation of the respondent’s offending should not lead to the conclusion that its decision, in this regard, is affected by jurisdictional error. The respondent called in aid the caution expressed in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at 272 that the reasons of an administrative decision-maker are meant to inform and are not to be scrutinised by over-zealous judicial review seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. As the Full Court of this Court said in Collector of Customs v Pozzolanic (1993) 43 FCR 280 at 287, such reasons should not be construed minutely and finally with an eye keenly attuned to the perception of error; see also McAuliffe v Secretary, Department of Social Security (1992) 28 ALD 609 at 616 – 617, and the cases there cited.

47    Had the omission of the word “very” been the only matter of comment arising from this part of the Tribunal’s reasons then I accept that the Court should proceed cautiously before accepting that the Tribunal fell into error, especially since the Tribunal did accurately state the requirement of para 13.1.1(1)(b) at [15] of its Decision Record. However, the omission of the word “very” is not the only matter for comment and thus the omission should not be seen in isolation.

48    At [38] of its Decision Record, the Tribunal reasoned that the seriousness of the 2016 offences had to be viewed in light of the psychologists’ reports. I do not doubt that the psychologists’ reports contained information that was relevant to the exercise of the Tribunal’s discretion. But the psychologists could not comment on, and did not purport to comment on, the degree of objective seriousness of the respondent’s offending. And yet this is how the Tribunal treated the Dieter report by stating that the 2016 offences seemed to “confirm impulsivity rather than being indicative of a criminal disposition”. I do not accept that, here, the Tribunal was simply seeking to comment on the reason for the 2016 offences. Rather, it was qualifying the objective seriousness of the offences and, in so far as they concerned violence against women or children, attributing to them lesser significance than permitted by para 13.1.1(1)(b).

49    With respect to the 2011 incident, the Tribunal went even further in imposing its own assessment of the degree of seriousness of the offence by referring to it as “not, overall, a particularly serious offence”: see [39] of the Decision Record.

50    The error in the Tribunal’s approach is compounded at [43] of its Decision Record where, although referring to, it seems, the 2016 and 2011 offences as, once again, “serious”, the Tribunal said that it was relevant to consider their seriousness against the actual sentences imposed on the respondent. In approaching its task in this way, the Tribunal acted contrary to para 13.1.1(1)(b) which states that crimes of a violent nature against women and children are viewed very seriously, regardless of the sentence imposed. The Tribunal’s approach led it to conclude that the respondent’s offending was of a “moderate level of seriousness”.

51    In his written submissions, the respondent advanced the proposition that, in this part of its reasons, the Tribunal was doing no more than considering the weight to be given to the primary consideration of the protection of the Australian community. I do not accept that submission. Plainly, the Tribunal was exercising its own judgment as to the degree of objective seriousness of the respondent’s past offending.

52    The respondent also advanced the somewhat different proposition that it was relevant to the Tribunal’s assessment of the respondent’s offending that it take into account the sentences that had been imposed. This proposition was developed in oral submissions by reference to para 13.1.1(1)(d) of Direction 79, which states that, in considering the nature and seriousness of the offending, the decision-maker can have regard to :

Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes …

53    The respondent submitted that para 13.1.1(1)(d) permitted the Tribunal to take into account the sentences that had been imposed on him for the purpose of forming a view about the seriousness of his criminal offending.

54    I do not accept that submission. Paragraph 13.1.1(1)(d) makes it clear that it is to be read subject to para 13.1.1(1)(b), and para 13.1.1(1)(b) requires the decision-maker to view crimes of a violent nature against women or children very seriously regardless of the sentence imposed. To read the two paragraphs of Direction 79 as the respondent would have it, inverts them so that the proviso to para 13.1.1(1)(d) is removed and becomes the proviso to para 13.1.1(1)(b), with para 13.1.1(1)(b) then being read subject to para 13.1.1(1)(d).

55    The Tribunal therefore failed to apply the direction in para 13.1.1(1)(b) of Direction 79. In substance, the Tribunal supplanted para 13.1.1(1)(b) by reaching and applying its own evaluation of the seriousness of the respondent’s past offending in so far as it concerned crimes of a violent nature towards women and children.

56    I am also satisfied that the Tribunal failed to comply with the direction given in para 13.1.2(1)(a) of Direction 79. Paragraph 13.1.2(1) required the Tribunal to come to a “cumulative” assessment. One limb of that assessment was the likelihood of the respondent engaging in further criminal or other serious conduct: para 13.1.2(1)(b). The Tribunal purported to undertake that task by finding that the respondent represented a “relatively low risk” to the Australian community in the future: see at [43]. However, this was not enough to undertake, meaningfully, the task which para 13.1.2(1) required. The Tribunal had to go further and reach a decision on the nature of the harm that might be involved with that “relatively low risk”. Here, the Tribunal’s assessment was necessarily incomplete. Its assessment simply begs the question: a “relatively low risk” of what further criminal or other serious conduct? Without answering that question, the Tribunal could not have arrived at the cumulative assessment that para 13.1.2(1) required.

57    The respondent submitted that, while it was brief in its written reasons, the Tribunal did in fact undertake the task required by para 13.1.2(1)(a). He submitted that the Tribunal’s finding that his past conduct was “serious” was enough to address the requirement.

58    I do not accept that submission. Paragraph 13.1.2(1)(a) is, as I have said, forward-looking. It necessarily poses a hypothetical question. The nature of the respondent’s past offending might inform a decision-maker about the nature of any future conduct he might engage in. But the nature of any future conduct does not necessarily mirror each and every, or indeed any, aspect of the respondent’s former criminal conduct. The respondent had engaged in a range of different criminal or other serious conduct (various assaults including those involving domestic violence; stalking/intimidation; property offences; various driving offences; a bail offence; and violent conduct while in immigration detention) which would, or at least could, fall within the description “criminal or other serious conduct”. Paragraph 13.1.2(1)(a) required the Tribunal to turn its mind to, and identify, further criminal or other serious conduct that the respondent might engage in having regard to circumstances existing at the time of the decision, to evaluate the nature of the harm that might be suffered by relevant individuals or members of the Australian community should the respondent engage in that conduct. Paragraph 13.1.2(1)(b) then required the Tribunal to form an assessment of the likelihood of that criminal or other serious conduct occurring. A fair reading of the Tribunal’s reasons shows that it did not undertake the task that para 13.1.2(1) required it to undertake.

59    I am also satisfied that the Tribunal failed to comply with para 13.2 of Direction 79 concerning whether revocation of the cancellation decision was in the best interests of minor children in Australia.

60    Paragraph 13.2 conditions this primary requirement by defining the class of children to whom the direction is addressed (para 13.2 (2)) and by requiring the decision-maker to give individual consideration to the best interests of each child falling within the class, to the extent that the interests of the children differ (para 13.2(3)).

61    In the present case, the interests of three children were engaged: one child from the respondent’s relationship with his former partner, who was born in 2009; and two from the respondent’s relationship with his present partner, who were born in 2014 and 2016. There was information before the Tribunal to the effect that, at the time of its decision, the contact which the respondent had had with his youngest child was different to the contact he had had with his two older children. Indeed, at [44], the Tribunal found that the respondent had had little opportunity to bond with his youngest child because of his detention and because of the child’s young age.

62    In the Tribunal, the Minister accepted that the respondent’s children would benefit if he remained in Australia. However, the Minister advanced a number of submissions as to the weight that should be given to that consideration:

16.    The respondent accepts that the applicant's 3 children would benefit from the applicant remaining in Australia and for them maintaining a relationship with him here. Consequently, it would be in the children's best interests if the cancellation of the applicant's visa were revoked. However, the weight to be given to this consideration is to be assessed in accordance with Direction 79.

17.    Clause 13.2(4)(a) of Direction 79 provides that [l]ess weight should generally be given where... there have been long periods of absence or limited meaningful contact.

18.    The applicant's eldest child, [X], lived with his mother after his birth. The applicant only lived with them for a couple of months shortly after [X] was born. The applicant said that he had to move away from his son so that the applicant's negative actions and behaviour would not affect him. Following the 2011 domestic violence assault, the police applied for a Provisional Apprehended Violence Order with the agreement of the applicant's ex-partner (RTB 242 to 243). The applicant had not seen [X] since he entered custody in 2016, although more recently [X] obtained a mobile phone and they were in contact by text message.

19.    In 2016, after the applicant's assault offences, he was subject to apprehended violence orders (RTB 269 to 270), and released on bail conditions (RTB 161 to 162) which limited his contact with his children. After the 2016 assault, the Department of Family and Community Services (FACS) also had a child protection response and intervention plan which included a directive that the applicant have no contact with his partner and that she was not to allow him to have contact with the children (RTB 114). At this stage, the applicant's middle child was 19 months old and his youngest son was not yet born. On 2 December 2016, the Department of Corrective Services found that the applicant was unsuitable to return to live with his family due to the risk of harm to the children (RTB 118). The applicant has since had visits by his youngest children in custody and immigration detention, but the contact he has had with them has been necessarily limited by his custody and detention.

20.    Clause 13.2(4) requires the Tribunal to consider the impact of the applicant's prior conduct, or likely future conduct, and whether any likely future conduct will have a negative impact on the children. The respondent submits that the applicant's violent conduct, which occurred in the same house where his children resided, could negatively affect those children if repeated. The FACS assessment of the potential danger to the children is relevant in this regard. It is also relevant that the applicant's ex-partner told police following the 2011 assault that she was concerned for her safety and her son's safety when the applicant had been drinking (RTB 242). The potential negative impacts which could arise from the applicant's further offending again reduce the weight which should be given to this consideration.

21.    Clause 13.2(4)(d) requires the Tribunal to consider the likely effect of separation on the children which would occur if the visa were cancelled. In this regard, it is relevant that the applicant's partner was considering moving to New Zealand to be with the applicant (and taking the youngest 2 children). If this occurred, there would be limited separation from the applicant. The applicant's ex-partner gave evidence that she would want to allow [X] to visit his father in New Zealand when he was able to travel and she could afford to send him. The children would also still be able to contact the applicant by phone as they have been doing while he is in immigration detention. The respondent submits that there is potential for on-going contact between the applicant and his children if the visa remains cancelled, and that this means that less weight should be given to this consideration.

22.    Finally, cl 13.2(4)(e) requires the Tribunal to consider whether there are other persons who already fulfil a 'parental role' in relation to the child. It is relevant that the applicant's ex-partner is the primary carer for [X], and that she receives support from her mother and father (although the respondent accepts that their capacity to support is diminishing due to their age). The youngest children have been cared for by the applicant's current partner, her mother and father and sister who lives next door. While the respondent accepts that these roles will not replace the applicant's role in his children's lives, there are currently people who are able to care for the children. There is limited evidence that the children are not being adequately cared for in terms of education, health or general welfare. Accordingly, the respondent submits that this further lessens the weight which should be given to this consideration.

23.    For the above reasons, the respondent submits that the consideration of the best interests of the child does not outweigh the consideration of the protection of the Australian community.

63    These submissions show that there was material before the Tribunal which, on its face, suggested that the interests of the respondent’s children might differ in various ways. However, on the face of its reasons, the Tribunal treated the children’s interests uniformly, without discussing these possible differences. It is unclear whether the Tribunal reached a conclusion that there was no difference between the children’s respective interests, or whether it failed to address the requirement of para 13.2(3). If, indeed, the Tribunal reached a conclusion that there was no difference between the children’s respective interests, it did not express that conclusion or give any reasons for it, which one would have expected if the Tribunal had given active consideration to this requirement.

64    Further, in considering the best interests of the children, para 13.2(4) sets out a number of factors which must be considered, if they are relevant. In the submissions quoted at [62] above, the Minister addressed the factors discussed in paras 13.2(4)(a) – (e), in a way that made them relevant to the Tribunal’s consideration. However, the Tribunal did not explicitly address any of these matters in its Decision Record other than to touch on some aspects of the matters with which paras 13.2(4)(a) and (d) of Direction 79 deal.

65    As Burley J observed in VKTT v Minister for Immigration and Border Protection [2019] FCA 1018 at [38] (in a case dealing with the Tribunal’s application of Direction 65, the predecessor of Direction 79), the Tribunal was obliged to give reasons for its decision, and this required it to set out its findings on material questions of fact, and to refer to the evidence or other material on which those findings were based: ss 43(2), 43(2B) Administrative Appeals Tribunal Act 1975 (Cth); s 25D Acts Interpretation Act 1901 (Cth). His Honour said (at [39] – [41]):

39    The written reasons may be taken to be a statement of those matters adverted to, considered, and taken into account by the decision-maker, and if something is not mentioned, it may be inferred that it has not been adverted to, considered or taken into account; NBMZ v Minister for Immigration & Border Protection [2014] FCAFC 38; 220 FCR 1 at [16] (Allsop CJ and Katzmann J). In Minister for Immigration & Border Protection v SZSRS [2014] FCAFC 16; 309 ALR 67 (Katzmann, Griffiths and Wigney JJ), the Tribunal’s failure to address a particular letter provided by the applicant was held to give rise to jurisdictional error. The Court at [34] made observations as to the nature of the exercise in determining whether a matter is considered by the Tribunal or not:

34     The fact that a matter is not referred to in the Tribunal’s reasons, however, does not necessarily mean the matter was not considered by the Tribunal at all: SZGUR at [31]. The Tribunal may have considered the matter but found it not to be material. Likewise, the fact that particular evidence is not referred to in the Tribunal’s reasons does not necessarily mean that the material was overlooked. The Tribunal may have considered it but given it no weight and therefore not relied on it in arriving at its findings of material fact. But where a particular matter, or particular evidence, is not referred to in the Tribunal’s reasons, the findings and evidence that the Tribunal has set out in its reasons may be used as a basis for inferring that the matter or evidence in question was not considered at all. The issue is whether the particular matter or evidence that has been omitted from the reasons can be sensibly understood as a matter considered, but not mentioned because it was not material. In some cases, having regard to the nature of the applicant’s claims and the findings and evidence set out in the reasons, it may be readily inferred that if the matter or evidence had been considered at all, it would have been referred to in the reasons, even if it were then rejected or given little or no weight: MZYTS at [52].

 40     This passage has since been adopted by another Full Court in HSKJ at [46].

41    The Court can more readily infer that a matter has not been considered when there is information before the decision-maker addressing that issue, but it is not referred to in the reasons. In Goodwin Street Developments Pty Ltd v DSD Builders Pty Ltd [2018] NSWCA 276 at [23], Basten JA (Leeming and Whit JJA agreeing) said:

23     Where there is apparently credible and relevant material before the decision maker, which appears to engage with a mandatory consideration, and there is no reference to that material in the reasons provided by the decision-maker, it may be inferred that no regard was had to it. That may allow the inference that no regard at all was had to the mandatory consideration.

66    Other than in the very limited respects which I have noted, I am satisfied that the Tribunal failed to actively engage with the substance of the factors identified in para 13.2(4)(a) – (e) of Direction 79. I am persuaded that, in fact, the Tribunal failed to consider them. At [44] of its Decision Record, the Tribunal simply made high level findings that the respondent had, and continues to have, a “deep and loving relationship with his children” and that he would be able to “continue a highly satisfactory and appropriate relationship” with them. These findings do not engage with the detail of the factors that the Tribunal was obliged to take into account. The Tribunal repeated these generalised findings after alluding to “the list of matters required to be considered by the Tribunal within Primary Consideration 2”. However, I am satisfied that, in this part of its reasons, the Tribunal paid no more than lip service to the factors it was required to take into account. Indeed, the Tribunal seems to have treated these factors as if they only informed the question whether the respondent and his children had a loving relationship. Paragraphs 13.2(4)(a) – (e) require consideration of much more than that.

Conclusion

67    The Tribunal failed to exercise the jurisdiction it had been given to decide whether the cancellation decision should be revoked. It failed by not complying with paras 13.1.1(1)(b), 13.1.2(1) and 13.2(4) of Direction 79. For this reason alone, the Tribunal’s decision should be set aside and remitted to the Tribunal for consideration, according to law.

Ground 2

68    The Minister contends that the Tribunal failed to conduct its review function in that, in considering the protection of the Australian community and the best interests of minor children in Australia, the Tribunal did not give consideration to the submissions advanced by the Minister in respect of the evidence before it. The Minister submits that the Tribunal could only undertake its task, in accordance with the jurisdiction conferred on it, with a consciousness and consideration of those submissions: Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; 230 FCR 431 at [38].

69    As regards the best interests of the minor children, the Minister submits that the Tribunal failed to respond to submissions he had made about the matters set out in paras 13.2(4)(a) – (e) of Direction 79, quoted at [62] above. As I have noted, this submission is bound up with Ground 1 and the Minister’s submission that the Tribunal failed to have regard to certain of the mandatory factors in para 13.2(4).

70    As regards the protection of the Australian community, the Minister raises three contentions.

71    First, the Minister contends that submissions he had made about the weight to be given to the psychologists’ reports, and in particular the Cinar report in 2019, were not considered. In that connection, the Minister had submitted that the Cinar report showed a moderate to high level of recidivism and a “clinically significant” score in testing the risk of recidivism. It also assessed the respondent’s risk as high to moderate on other tests that correlate with re-offending. The Cinar report concluded that the respondent had some protective factors that may reduce the likelihood of re-offending (these were his relationship with his partner and children, his employment and access to psychological treatment). However, in the Tribunal, the Minister submitted that the respondent had not lived with his partner or children for three years, and the future of the relationship was uncertain. There was no evidence that he had employment or as to whether he would have continuing access to psychological treatment. Further, as the psychologist was not available for cross examination, the Minister exhorted the Tribunal to limit the weight to be given to the report.

72    The Minister says that the Tribunal did not refer to any of these submissions or to the objective testing that had been conducted. According to the Minister, the Tribunal advanced, instead, the speculative opinion at [37] of its Decision Record that the risk of the respondent re-offending could be minimised.

73    Secondly, the Minister contends that the Tribunal also failed to refer to, or respond to, his submissions about the centrality of the principles set out in paras 6.3(3) and 13.1.1.(b) and (c) concerning the seriousness of crimes of violence against women or children. The Minister had submitted that the respondent’s offences committed in this regard should be treated as particularly serious, regardless of the sentences that had been imposed on him. The Minister submits that there is no indication in the Tribunal’s reasons that the submissions were taken into account by the Tribunal.

74    Thirdly, the Minister contends that the Tribunal placed “very little weight” to what it described as the “so-called incidents” while the respondent has been in immigration detention. In this connection, the Tribunal found at [41] – [42]:

41.    The so-called incidents in immigration detention are relied upon by the Respondent to assert a continuing and violent disposition in the Applicant. A close reading of those offences demonstrates, in the Tribunal‘s view, that these occurred in the “hot house” environment of immigration detention which may be considered as a more destructive environment than the prison system. Relevantly, the Applicant was not convicted of any offences for violence whilst in prison. Furthermore, the Tribunal accepts that the Applicant and those other parties involved in the so-called incidents were under great emotional stress and pressure for obvious reasons.

42.    The Tribunal further accepts that the Applicant, on occasions, behaved under provocation by other inmates in these matters. Importantly, the Tribunal recognises that there were no charges laid against the Applicant for these incidents and the Tribunal, overall, whilst recognising that they are in evidence, places very little weight upon them in its overall consideration of the relevant matters in this hearing.

75    The Tribunal’s Decision Record does not detail these incidents, but the Minister had summarised them in a Statement of Facts, Issues and Contentions, as follows:

32.    There are 7 incident relating to the applicant's conduct in the Villawood Immigration Detention Centre. The incident reports record the following conduct:

32.1.    On 2 May 2017 the following conduct is reported after the applicant was told he was too late to join an activity (GD 136):

... STOWERS then kicked over the cricket stumps used in the activity. He then continued to pick one up and throw it at P&A officer XXXXX while XXXXX was standing at the top of the court yard. Detainee STOWERS made first attempt by throwing it directly at officer XXXXX but was unsuccessful due to P&A officer XXXXX ducking behind the wall.

Detainee STOWERS was then asked to refrain from doing that when he threw the second metal stump which appeared to narrowly miss P&A officer XXXXX. [Two detainees] had to intervene and escort detainee STOWERS from the basketball court in attempt to stop him from throwing anything else...

32.2.    On 8 August 2017, the applicant was reported as arguing with another detainee. They grabbed each other by the collars of their shirts and continued arguing. The applicant walked away and threw a speaker on to the ground (GD 137).

32.3.    On 20 October 2017, a detainee presented himself to an officer. According to the report ‘[i]t appeared that [the detainee] had sustained injuries to his face, namely his nose which was bleeding heavily as well as bleeding to his left eye’ (GD 138). The injured detainee initially said that the applicant had punched him in the face, but he did not wish to elaborate further. He later advised that he had been smoking near Unit 5, when the applicant approached him and told him to put the cigarette out. The detainee said he put the cigarette out and told the applicant it was raining so he did not want to go outside. The report then says that the detainee ‘said that Detainee STOWERS then started hitting him in the face with a closed fist but was unable to say how many punches had been thrown’ (GD 138). The applicant was interviewed, and he explained his frustration at the detainee smoking. The report does not suggest that the applicant denied hitting the detainee.

32.4.    On 27 November 2017, it was reported that a detainee had sustained injuries to his face, including a ‘small cut to the left hand side of his face near his left eye, a bleeding nose and a cut inside his top lip’. The detainee was sent to Liverpool Hospital to deal with those injuries. The report states that ‘[d]etainee STOWERS was taken to interview room two where he eventually admitted to assaulting [the detainee] over a disagreement over a television’ (GD 139)

32.5.    On 27 November 2018, there are reports that the applicant was alleged to have assaulted another detainee. That detainee had a small laceration on his forehead (GD 141). The detainee claimed that the applicant had said that the detainee had been touching his food. The detainee claimed that he let the applicant punch him and did not retaliate (GD 142). Initially the applicant claimed that the detainee had run into a table (GD 141). However, he subsequently advised that he was involved in an argument about food which led to the altercation, and he advised that he had apologised to the other detainee and that no further incidents of that nature would occur (GD 143).

32.6.    There is a report that on 15 January 2019 the applicant punched a detainee and hit another detainee over the head with a chair, and that he had some form of knuckle duster (GD 144). During this incident it was alleged that the applicant broke a fan and caused some damage to the wall (GD 144). The applicant claimed that he did not touch the other detainees, only the fan (GD 145).

32.7.    On 23 April 2019, the applicant is reported to have said to a female officer at Villawood Immigration Detention Centre, word to the effect that ‘your job is nothing special, you need to calm down now or you will be slapped’ (RTB 391 to 393)

76    The respondent does not dispute the accuracy of this summary.

77    In the Tribunal, the Minister had submitted that this conduct showed a lack of control by the respondent. In the present proceeding, the Minister submits that it is apparent from the Tribunal’s Decision Record that his submissions were not given any, or any proper, consideration.

Consideration

78    As regards the best interests of the minor children, I am satisfied that the Tribunal failed to engage with the substance of the case advanced by the Minister (see [62] above), and thus failed to carry out its review function on the material before it. However, in light of my finding that the Tribunal failed to have regard to paras 13.2(4)(a) – (e) of Direction 79, this conclusion now adds little to the Minister’s application for judicial review.

79    As regards the protection of the Australian community, I am satisfied that the Tribunal failed to engage with the substance of the Minister’s case concerning the weight that should be placed on the psychologists’ reports. Although at [37] of its Decision Record, the Tribunal said that it accepted the psychologists’ reports, there is nothing in the Tribunal’s reasons to indicate that it gave active consideration to the Minister’s case which was that, notwithstanding the opinions expressed by the psychologists, there were limits to which reliance could be placed on the reports, particularly when the opinions expressed were based on assumptions that had not been addressed in the evidence or rested on assumptions whose validity had been called into question by the evidence that was available to the Tribunal. These were significant matters that required attention by the Tribunal. They went to the central issue of the risk of the respondent re-offending. The Tribunal did not address them. Thus, in this respect, the Tribunal also failed to carry out its review function.

80    In relation to the Minister’s contention that the Tribunal failed to refer to, or respond to, his submissions about the centrality of the principles set out in paras 6.3(3) and 13.1.1.1(b) of Direction 79, I prefer to rest my conclusion on the finding that the Tribunal failed to apply the direction in para 13.1.1(1)(b). In light of that finding, this aspect of Ground 2 also now adds little to the Minister’s application for judicial review.

81    This leaves the Minister’s contention that his submissions to the Tribunal in respect of the respondent’s conduct while in immigration detention were not given any, or any proper, consideration. I am not satisfied that this aspect of Ground 2 has been established. The Tribunal’s Decision Record shows that it did give active consideration to the respondent’s conduct in this regard, but reached a view about that conduct which did not accord with the Minister’s submissions. I see no reason to go behind the Tribunal’s statement, at [41] of its Decision Record, that it had undertaken a “close reading” of these “offences”. In this paragraph of its reasons, the Tribunal also acknowledged the Minister’s submission that the incidents in immigration detention reflected the respondent’s “continuing and violent disposition”. I am satisfied that the Tribunal was seized of the Minister’s case and gave consideration to it.

Conclusion

82    I am satisfied that, in certain respects, the Tribunal failed to conduct its review function by failing to deal with the case that was propounded by the Minister in relation to the best interests of the minor children and the protection of the Australian community. However, in the end, my findings in this regard add little to the findings that underpin my acceptance, on the basis of Ground 1, that the Tribunal’s decision should be set aside and remitted for consideration, according to law.

Disposition

83    An order will be made setting aside the Tribunal’s decision and remitting the matter to the Tribunal for determination, according to law. The respondent is to pay the Minister’s costs.

Associate:

Dated:    27 March 2020