FEDERAL COURT OF AUSTRALIA

Meyrick v Minister for Home Affairs [2020] FCA 677

ORDERS

THE COURT ORDERS THAT:

1.    The application is dismissed.

2.    The applicant must pay the first respondent's costs of the application, fixed in the sum of $18,500.

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

REASONS FOR JUDGMENT

JACKSON J:

1    The applicant, Mr Meyrick, commenced these proceedings by filing a notice of appeal from a decision of the Administrative Appeals Tribunal dated 15 February 2019. The Tribunal had affirmed a decision of a delegate of the first respondent (the Minister), under s 501CA(4) of the Migration Act 1958 (Cth), not to revoke the mandatory cancellation of Mr Meyrick's visa.

2    Mr Meyrick was born in the United Kingdom and came to Australia when he was 7 years old. He has lived here ever since, but he never became an Australian citizen. Since the age of 17 he has been convicted of a large number of criminal offences, which means that he does not pass the character test for the purposes of s 501(3A) of the Migration Act. That led to the mandatory cancellation of his visa under that sub-section. His history of offending was connected with long term abuse of alcohol and use of illicit drugs.

3    Mr Meyrick was not represented when he commenced these proceedings. That remained the case at the hearing of the matter on 25 July 2019. While the court had no jurisdiction to hear an appeal from the Tribunal in relation to this matter, the proceeding was treated as if it were an originating application for judicial review.

4    At the hearing, Mr Meyrick advanced several arguments which were unlikely to have been successful. However one of them, which was only raised at the hearing, involved a matter arising under the Constitution or involving its interpretation. In the circumstances the hearing was adjourned in order to give the Minister time to notify the Attorneys-General of the Commonwealth and of the States as required by s 78B of the Judiciary Act 1903 (Cth).

5    Before the reconvened hearing, Mr Meyrick secured legal representation and, by consent, orders were made substituting an originating application pursuing different grounds for the notice of appeal. The reconvened hearing proceeded with Mr Meyrick represented by counsel.

6    For the following reasons, the application will be dismissed.

The statutory framework

7    It is common ground that s 501(3A) of the Migration Act required the Minister to cancel Mr Meyrick's visa.

8    Section 501CA(3)(b) required the Minister, as soon as practicable after making the decision to cancel the visa, to invite Mr Meyrick to make representations to the Minister about revocation of the cancellation. Mr Meyrick took up the invitation. As a result, under s 501CA(4)(b), the Minister was empowered to revoke the decision to cancel the visa if he was satisfied that Mr Meyrick passed the character test, or if he was satisfied that there was another reason why the decision should be revoked.

9    The Minister has made directions under s 499(1) of the Migration Act in relation to the manner in which decision-makers should make decisions under s 501CA (and other provisions that raise similar kinds of issues). A person or body that is subject to such a direction must comply with it: s 499(2A). The Tribunal is such a body in respect of the direction that was in force at the time of its decision here, Direction No 65 (Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA).

10    Direction 65 says that when the discretion to consider revoking the cancellation of a visa under s 501(3A) is enlivened, the decision-maker must consider whether to revoke given the specific circumstances of the case: para 6.1(3) and 13(1). The Direction sets out certain principles which provide a framework within which decision-makers should approach their task.

11    Paragraph 7 of the Direction relevantly provides that, informed by the principles in para 6.3, a decision-maker 'must take into account' the considerations in Part C of the Direction. The considerations are divided into primary considerations and other considerations: see para 8(1).

The grounds of review

12    The grounds of review raise issues concerning a number of the considerations in Part C of Direction 65. There are nine grounds, but the first just introduces the others, the last simply asserts that the errors for which the others contend were material, and one of the others (ground 3) was abandoned at the hearing. So there are six grounds which require separate consideration.

Ground 2 - the finding about Child B

The Tribunal's findings as to the best interests of the child

13    Mr Meyrick has two biological children who were under 18 at the time of the Tribunal's decision. The written submissions filed on behalf of Mr Meyrick referred to the children as Child A and Child B. Child A was 12 years old at the time of the Tribunal's decision. Child B was approximately 16 months old. Clause 13.2(1) of Direction 65 required the Tribunal to 'make a determination about whether revocation is, or is not, in the best interests of the child'.

14    Clause 13.2(3) of Direction 65 provides that if 'there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ'. The Tribunal found that the respective interests of Child A and Child B did differ, because Child A had met and formed a relationship with Mr Meyrick, while Child B, an infant daughter, had not. So the Tribunal dealt with each child separately. The first substantive ground of review alleges error in the determination made about the best interests of Child B. The error is put in various different ways, which are addressed below.

15    Child B had not met Mr Meyrick because he had been in custody since she was born. In that regard the Tribunal noted para 13.2(4)(a) of Direction 65 concerning the nature and duration of the relationship between the non-citizen and the child, the terms of which are set out below. The Tribunal also noted in connection with this that Mr Meyrick had submitted that while in prison he had managed to maintain contact with both children 'facilitated through their carer'.

16    The Tribunal recorded Mr Meyrick's evidence about whether he would establish a positive relationship with his infant daughter in the future. This was to the effect that the child's mother, Rebecca Bond, was prepared to allow him to see the child, and had acknowledged that she and Child A were his children, and that he had a right to be in their lives. The evidence was that Miss Bond (that is how she signed her name in her one letter of support) would permit him to see Child B and take her to the park (initially at least accompanied by Miss Bond). Mr Meyrick said he was looking forward to meeting the child and 'her getting to know me as a person that doesn't have an - does not have an addiction at all'.

17    The Tribunal accepted that, generally speaking, Child B 'may benefit from having the support and involvement of her father in her upbringing'. It referred to para 13.2(4)(b) of Direction 65 in that regard, which provides that where relevant the Tribunal must consider 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'.

18    Paragraph 13.2(4)(c) of Direction 65 required the Tribunal to consider the impact of Mr Meyrick's prior conduct, 'and any likely future conduct, and whether that conduct has, or will have a negative impact on the child'. The Tribunal found that the prior conduct would have no impact in the absence of an existing relationship. But it went on to say (para 98):

as with his 12 year old daughter, if Mr Meyrick continues to offend, he will not be a positive role model for her (subparagraph 13.2.4(c) of Direction No. 65). Again, Mr Meyrick has treatment needs which the Tribunal considers are largely unmet, which raises concerns over whether Mr Meyrick's presence in his infant daughter's life would, despite his genuine intentions, be beneficial at this stage.

19    The reference to treatment needs referred to a previous part of the Tribunal's reasons in which it considered evidence about Mr Meyrick's attendance at rehabilitation courses concerning alcohol and drug use issues and concluded (para 78, evidentiary reference removed) that it had:

serious concerns as to whether Mr Meyrick has unmet treatment needs in these areas. In turn, the Tribunal is concerned that Mr Meyrick's unmet treatment needs increase the likelihood of him re-offending given that, by his own evidence, his offending stems directly from his drug and alcohol use.

20    Paragraph 13.2(4)(d) of Direction 65 required the Tribunal to consider, where relevant, 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'. As to that, the Tribunal found (para 99):

As Mr Meyrick has not met his infant daughter, it is unlikely that any permanent separation from her father, if he were to be removed from Australia, would have a negative impact on her (subparagraph 13.2.4(d) of Direction No. 65). As with his 12 year old daughter, Mr Meyrick would be able to contact his infant daughter by electronic means of communication. However, it is unclear to the Tribunal how this contact would be established and facilitated given Mr Meyrick's untested evidence regarding his present relationship with Ms Rebecca Bond (extracted at paragraph 96 above), with whom his infant daughter resides (transcript pages 56 and 74) (subparagraph 13.2.4(d) of Direction No. 65) and who fulfils the parental role (subparagraph 13.2.4(d) of Direction No. 65).

The evidence regarding his relationship with Rebecca Bond is the evidence summarised at [16] above.

21    The Tribunal also noted evidence from Mr Meyrick that his involvement with his children had been positive and he had told them, in effect, that they could not break the law the way that he had. His evidence was that he was upset at the thought that he would miss the major milestones in his daughters' growing up and he said 'I think that's important for any parent and child, to experience them things together'.

22    The Tribunal also noted the Minister's contentions that insofar as Mr Meyrick's relationship with his children could be said to weigh in favour of revocation of the cancellation of his visa, it should be given little weight. The Minister submitted that Mr Meyrick had had little meaningful contact with his infant daughter, the children's mother was fulfilling a parental role and there was little evidence that Mr Meyrick had any prolonged involvement of that kind. The Minister also submitted that given his history of offending and likely risk of future offending he was unlikely to play a positive parental role in the children's life, particularly given what the Minister's representative described as Mr Meyrick's 'propensity towards domestic violence'. This appears to be a reference to a history including evidence of at least one assault on Rebecca Bond (which is described in a subsequent section of these reasons) as well as breaches of restraining orders obtained by her.

23    In relation to Child B, the Tribunal concluded (para 102):

Overall, considering the above discussion of the factors in subparagraph 13.2.(4) of Direction No. 65, the Tribunal finds that on balance, the best interests of Mr Meyrick's infant daughter do not weigh either for or against the revocation of the cancellation of the visa.

The ground of review

24    The ground of review concerning Child B claims that the Tribunal misunderstood and misapplied the paragraphs of Direction 65 which mandate consideration of the best interests of the child. There are 23 'particulars' appended to the ground which cite matters of fact, statutory provisions and provisions of the Convention on the Rights of the Child done at New York on 20 November 1989. But neither the ground nor the particulars describe the asserted misunderstanding and misapplication.

25    The written submissions filed on behalf of Mr Meyrick presented a dense web of internal cross references. However it was possible to discern the thread of the argument. It was that the finding that the best interests of Child B did not weigh either for or against the revocation of the cancellation of the visa denied the child a relationship with her father. This was said to involve the denial of certain 'interests' said to be recognised by the Family Law Act 1975 (Cth). It was also said to be inconsistent with terms of the Convention on the Rights of the Child. It was also said to be inconsistent with a common law 'principle of parental responsibility'. For convenience I will refer to all of these arguments as relying on an asserted repugnancy between the Tribunal's decision and each of these asserted rights, terms, principles or interests.

26    The submissions did not always make it clear exactly how the repugnancy was said to operate to invalidate the Tribunal's decision. In the case of the Family Law Act, Mr Meyrick's counsel submitted orally that Direction 65 should be read down to be consistent with that Act, so that it did not authorise a finding that the best interests of Child B did not weigh for or against revocation of the cancellation of the visa. With one exception I will address below, however, exactly which terms were to be read down, and how, were not articulated. Alternatively it was submitted that if the direction did purport to authorise the finding, it was ultra vires due to inconsistency with the Family Law Act. But no inconsistency between specific provisions of the respective instruments was identified.

27    In the case of the Convention on the Rights of the Child, the submission appeared to be that Direction 65 should be interpreted so as to be consistent with the Convention, and the Tribunal's finding was inconsistent with it, so interpreted. In the case of the asserted common law principle of parental responsibility, there was a claim that the finding was simply inconsistent with 'that right'. That was said to mean that if Direction 65 permits 'such an outcome', it is ultra vires. Again, with the exception I have mentioned, how any particular terms of Direction 65 were repugnant to the Convention or the common law, or were to be construed, was not identified.

28    Nevertheless, it is immediately apparent that these arguments would have far reaching implications if they were to be accepted. They amount to an assertion that where a non-citizen has a minor child, a decision-maker performing its function under s 501CA(4) of the Migration Act must always find that revoking the decision to cancel the non-citizen's visa is in the best interests of the child. At the reconvened hearing, after a considerable exchange with the bench, counsel for Mr Meyrick qualified his submissions in that regard, but not by much. Counsel said that it was not open to the Tribunal to make a finding that it is neither in the interests of the child or against the interests of the child for the cancellation to be revoked, and explained that was because 'always absent abuse [it] is in the child's best interests to have a meaningful relationship, even if they haven't met'.

29    Against that background, it is now necessary to consider whether the asserted repugnancies do exist, and, if so, what the implications are for the meaning and legal effect of Direction 65.

The Family Law Act

30    Mr Meyrick relies on s 60B, s 60CC, s 61C, s 66C and s 67B of the Family Law Act. These all appear in Part VII of the Act, which is headed 'Children'.

31    In so far as it is relevant, s 60B provides as follows:

(1)    The objects of this Part are to ensure that the best interests of children are met by:

(a)    ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

(b)    protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

(c)    ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

(d)    ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

(2)    The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):

(a)    children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

(b)    children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

(c)    parents jointly share duties and responsibilities concerning the care, welfare and development of their children …

…

(4)    An additional object of this Part is to give effect to the Convention on the Rights of the Child done at New York on 20 November 1989.

32    Section 60CC appears in subdivision BA. That subdivision commences with s 60CA, which provides that, 'In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration'. Parenting orders are defined in s 64B and may deal with a number of matters including with whom a child is to live (s 64B(2)(a)) and the allocation of parental responsibility (s 64B(2)(c)). Section 60CC(2) and s 60CC(3) set out a number of matters to which a court must consider in determining what is in the child's best interests. Section 60CC(2) sets out two 'primary considerations':

(a)    the benefit to the child of having a meaningful relationship with both of the child's parents; and

(b)    the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

33    Section 60CC(2A) provides that in applying those considerations, the court must give greater weight to the second of them. Section 60CC(3) sets out a number of 'additional considerations' which include:

(a)    any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;

(b)    the nature of the relationship of the child with:

(i)    each of the child's parents; and

(ii)    other persons (including any grandparent or other relative of the child);

(c)    the extent to which each of the child's parents has taken, or failed to take, the opportunity:

(i)    to participate in making decisions about major long-term issues in relation to the child; and

(ii)    to spend time with the child; and

(iii)    to communicate with the child;

(ca)    the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;

(d)    the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

(i)    either of his or her parents; or

(ii)    any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

…

(i)    the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

(j)    any family violence involving the child or a member of the child's family;

…

(m)    any other fact or circumstance that the court thinks is relevant.

34    Section 61C(1) provides that each of the parents of a child who is not 18 has parental responsibility for the child. Section 61B defines 'parental responsibility' as 'all the duties, powers, responsibilities and authority which, by law, parents have in relation to children'. Section 61DA provides that when making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.

35    Section 66C(1) provides that, subject to various matters, the parents of a child have the primary duty to maintain the child. The court is required to take that and other matters into account in determining financial contributions towards the financial support necessary for the maintenance of a child (s 66K(1)) and in making an order determining that it is proper for a step-parent to have a duty of maintaining a step-child (s 66M(3)) and determining the financial contribution of the step-parent (s 66N).

36    Section 67B provides that the father of a child who is not married to the child's mother is liable to make a proper contribution to certain child bearing expenses.

37    The asserted repugnancy between those provisions and the decision that the Tribunal made here in relation to the best interests of Child B is said to have operated in two different ways. The first is that the finding that the best interests of the child did not weigh for or against the revocation of the cancellation of the visa effectively denied the child the 'interests' said to arise out of the provisions. The interests identified appeared to be the interest in having a meaningful relationship with both parents and the interest in having shared parental responsibility. The second is (in the alternative) that if Direction 65 authorises 'such an outcome', it is ultra vires.

38    For a number of reasons, I do not accept those contentions.

39    First, the finding that Child B's interests neither weighed for or against revocation did not deny the child any of the asserted interests. For one thing, it was neutral. So it did not weigh against the interests. In Uelese v Minister for Immigration and Border Protection [2015] HCA 15; (2015) 256 CLR 203 at [67], French CJ, Kiefel, Bell and Keane JJ held, in relation to a ministerial direction not materially different from Direction 65:

It is not necessary here to seek to chart the boundaries of the Tribunal's obligation to inquire after the best interests of the children of an applicant for review. There may be cases, hopefully rare, where the evidence presented by the parties does not alert the Tribunal that minor children in Australia may be affected by the decision. There may also be cases where the evidence is such that the only determination which can be made in obedience to cl 9.3(1) of Direction 55 is that cancellation is neutral so far as the best interests of any minor child are concerned. In this regard, it is to be noted that cl 9.3(1) requires a 'determination about whether cancellation is, or is not, in the best interests of the child' (emphasis added). Sometimes the best decision 'about' whether cancellation is, or is not, in the best interests of the child may be that it is neither.

40    So there was nothing inherently objectionable about the neutrality of the Tribunal's finding here. Mr Meyrick's counsel relied on statements by Barker J, apparently to the contrary, in Paerau v Minister for Immigration and Border Protection [2014] FCAFC 28; (2014) 219 FCR 504 at [56]-[81]. His Honour was in dissent on that point. At [27] Buchanan J said:

In my respectful view, there could be no objection in any case to the AAT concluding that the best interests of a child did not weigh either for or against the cancellation of a visa, so long as the available material was assessed conscientiously. That is not the same as not stating a conclusion about the issue at all. Similarly, in a case where the evidence did not permit a proper conclusion about the issue, there could be no objection to the AAT saying so, as it did in the present case.

41    Perry J found (at [117]-[118]) that the Tribunal in the matter before the Full Court correctly concluded that there was insufficient probative material before it to make the determination required by the provision of the applicable ministerial direction that was equivalent to para 13.2(1) of Direction 65. In the course of making that finding her Honour did, however, say:

In other words, fairly read, I do not consider that the Tribunal was having regard to the primary consideration of the best interests of the minor children in Australia in describing the consideration as 'neutral', but rather intended to restate in a different way that it could not have regard to the consideration at all.

So it may be that her Honour considered that a 'neutral' determination would be impermissible. But to the extent that she and Barker J held that view it cannot, with respect, stand with the subsequent observations of the plurality of the High Court in Uelese. See also Nigam v Minister for Immigration and Border Protection [2017] FCAFC 127; (2017) 254 FCR 295 at [40].

42    In any event it was not the determination about the best interests of Child B which (as Mr Meyrick's submissions put it) denied her a parental relationship with her father. It is the mandatory cancellation of his visa, combined with other provisions of the Migration Act which require that he be removed from Australia (see s 189, s 196, s 198), that will do that (if that is indeed the effect of his removal). The point of substance is that even if one accepts that it is the Tribunal's decision not to revoke the cancellation that has that effect, that is a decision which is the result of weighing a number of different factors, of which the interests of Child B was but one. The finding about those interests was an evaluative finding of fact that was either right or wrong. Mr Meyrick did not attack its correctness or reasonableness as a finding of fact, and in the context of judicial review of an administrative decision his scope to do so would have been limited. Nor did Mr Meyrick make any broader submission that the provisions of the Family Law Act on which he relied did not leave it open to the Minister or the Tribunal to refuse to revoke the mandatory cancellation of the visa on the basis of all relevant factors. Once those possibilities are discarded, there is no basis to single out a finding concerning but one of many factors as being repugnant to the asserted interests even if by itself it would be contrary to those interests (which in fact it was not).

43    The incoherence of the idea that the finding about Child B, without more, is repugnant to the provisions of the Family Law Act on which Mr Meyrick relies becomes apparent when one considers the finding about the best interests of Child A, Child B's then 12-year-old sister. The Tribunal found that Child A's best interests were likely to be served by revocation of the cancellation of Mr Meyrick's visa, but only to a marginal extent. It could be said that this finding, too, effectively denied Child A's relevant interests, because it was not strong enough. Had the finding been that it was strongly in Child A's best interests to revoke the cancellation, that might have tipped the balance of the ultimate decision. But Mr Meyrick makes no challenge to the Tribunal's actual finding. Understandably so; it cannot be a jurisdictional error for a decision-maker to decline to place a finger on the scales, as it were, in order to make a finding of fact that is calculated most likely to achieve an outcome thought to be consistent with values reflected in the Family Law Act. Setting aside the claim of ultra vires, for there to be an error in failing to make a decision that is consistent with those values, it is necessary for those values to affect the construction or application of specific provisions of the Migration Act or of Direction 65 and to show that here, the Tribunal construed or applied those provisions incorrectly.

44    Second, I do not accept that the Tribunal has made any such error of construction. In the end, Mr Meyrick's counsel only identified one specific provision which, he submitted, should have been construed in a particular manner in light of the Family Law Act (or any of the other sources of rights or principles on which he relied). That was para 13.2(4)(a) of Direction 65, which requires the decision-maker to consider, where relevant:

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) …

45    Counsel submitted that this could be reconciled with the interests that are said to be recognised by the Family Law Act, by reading the word 'relationship' in the second sentence as not including the relationship between a parent and his or her biological child. That was because it could not be said that such a relationship was ever 'non-existent'. Counsel illustrated the point by submitting that even if a biological parent has never met a child, they still have a parental relationship. If that reading of the paragraph is correct, then the Tribunal erred in finding that the fact that Mr Meyrick had never met Child B was a reason to give less weight to the importance of his relationship with the child.

46    Counsel relied in that regard on the strong presumption that a legislature does not intend to contradict itself when it enacts different pieces of legislation: Butler v Attorney-General (Vic) (1961) 106 CLR 268 at 276 (Fullagar J). But what needs to be construed here is an instrument made by the Minister under s 499 of the Migration Act, so it is not that presumption, exactly, which applies. Nevertheless I will assume, favourably to the argument, that I should start with a presumption that Direction 65 should be read consistently with the Family Law Act if it is reasonably open to do so. I will also assume, for the moment, that if Direction 65 is not read down as counsel submits, it will indeed be inconsistent with that Act.

47    Nevertheless, I do not consider that it is open to read para 13.2(4)(a) down in the manner submitted. It is inconsistent with the ordinary meaning of the second sentence of the paragraph, having regard to its wording and syntactical arrangement, and it is inconsistent with the intent that can be discerned from the paragraph as a whole. There is no express limitation of the word 'relationship' so that it does not encompass parental relationships, as it normally would. Nor can that limitation be implied. The implication is to the contrary: in using the phrase 'where the relationship is non-parental', the first part of the second sentence conveys that some relationships to which the paragraph refers are parental. Reading the word to exclude parental relationships would make that phrase tautologous. Also, by following the phrase with 'and/or there is no existing relationship' (emphasis added), the provision makes the further implication that there can be circumstances involving parent and child where there is no existing relationship between them.

48    Counsel's submission seeking to contradict this last proposition mixes different senses of the word 'relationship'. The Oxford English Dictionary defines it in two potentially relevant ways: (1) 'The state or fact of being related; the way in which two things are connected; a connection, an association. Also: kinship'; and (2) 'A connection formed between two or more people or groups based on social interactions and mutual goals, interests, or feelings'. A child will always have a relationship in the first sense with his or her 'biological' father, even if they have never met, will never meet, and are unaware of each other's existence. They are related to each other by kinship or blood. But para 13.2(4)(a) is using the word in the second sense. It requires the decision-maker to make a qualitative assessment of the relationship, informed by matters such as the actual history of the dealings between the non-citizen and the child and their feelings towards one another. So, a relationship can be parental in that second sense, even if the non-citizen is not related to the child by blood. And if a non-citizen and his or her biological child in fact have had nothing to do with each other, it will be open to characterise their relationship, understood in the second sense, as not an 'existing relationship'.

49    With that in mind there is no difficulty in discerning the intent of para 13.2(4)(a) as a whole. It requires the decision-maker to consider both the nature and duration of the relationship (in the second sense) between the child and the non-citizen. Sometimes the nature will be such that the best interests of the child favour non-revocation; for example if the relationship is abusive. But in other cases, the nature of the relationship will be positive, so that its existence may weigh in favour of revocation.

50    The paragraph describes four circumstances, one or more of which may be present in any particular case, which require the decision-maker to give the nature of the relationship less weight in the overall consideration of the best interests of the child. The first circumstance is that the non-citizen is not a parent of the child (there is no apparent restriction there on how the word 'parental' should be understood). The second circumstance is that the non-citizen and the child do not have an 'existing relationship'. The third circumstance is that there have been long periods of absence, which evidently means long periods during which the child and the non-citizen have been apart. The fourth circumstance is that there has been limited meaningful contact.

51    Each of those circumstances is a matter which 'generally' (the word the sentence uses) means that the impact of separation or disruption to a positive relationship will be less grievous to the child. So if one or more of the four circumstances applies to the relationship, the interests of the child in maintaining it may have less weight than they would otherwise have. That can be the case for non-parental relationships and for parental ones, for example, for a parental relationship that has been attenuated by long periods of separation.

52    For those reasons I do not accept that the word 'relationship' in para 13.2(4)(a) can be read as applying only to non-parental relationships. And even if it could, that would not take account of the third and fourth circumstances, which do not use the word 'relationship' and are plainly capable of applying to relations between parent and child. So it is not open to read the paragraph down so as to make it consistent with the asserted interests, even applying the presumption in Butler v Attorney-General (Vic). It follows that the approach the Tribunal took does not demonstrate any misconstruction of the paragraph.

53    Third, approaching the question from the point of view of how the Tribunal applied the paragraph does not assist Mr Meyrick's argument. The paragraph directed the Tribunal to give less weight to the relationship between Mr Meyrick and Child B because he had never met Child B, and that is what the Tribunal did. The fact that the direction is expressed in less than categorical terms, by saying that less weight 'should generally be given', does not mean that the Tribunal had room to apply it a different way so as to make it consistent with the asserted interests. Those words permit a decision-maker to depart from the approach if the specific circumstances of the case require it, but there is nothing specific about the asserted interests here; to the contrary, the submissions made on Mr Meyrick's behalf rely essentially on the universality of the asserted right to a relationship with both parents and the principle of shared parental responsibility.

54    At the hearing, the argument of counsel for Mr Meyrick resolved to a submission that the Tribunal was required to exercise the discretion conferred by s 501CA(4) of the Migration Act in a way that is informed by the values to which the Family Law Act gives statutory recognition, as well as the values reflected in the Convention and the common law. But the authorities on which he relied do not rise so high. Those authorities mostly concerned international treaty obligations, and so are relevant to Mr Meyrick's arguments based on the Convention. But even assuming that the Family Law Act does recognise the importance of a child being brought up by both her parents and the importance of shared parental responsibility, and even assuming that the status of these values are the same as the status of rights or values recognised by international treaties, the cases which concern the application of those values only recognise that a decision-maker may take them into account as a relevant matter in the exercise of certain discretions. I have been referred to no authority to the effect that a decision-maker commits an error, let alone a jurisdictional error, if he or she does not take them into account.

55    In Royal Women's Hospital v Medical Practitioners Board of Victoria [2006] VSCA 85; (2006) 15 VR 22 at [75]-[77], Maxwell P summarised the position of international treaties which have not been adopted by statute into domestic law as follows:

First, the provisions of international treaties are relevant to statutory interpretation. In the absence of a clear statement of intention to the contrary, a statute (Commonwealth or State) should be interpreted and applied, as far as its language permits, so that it conforms with Australia's obligations under a relevant treaty.

Secondly, the provisions of an international convention to which Australia is a party - especially one which declares universal fundamental rights - may be used by the courts as a legitimate guide in developing the common law. The High Court has cautioned that the courts should act with due circumspection in this area, given that (ex hypothesi) the Commonwealth Parliament itself has not seen fit to incorporate the provisions of the relevant convention into domestic law.

Thirdly, the provisions of an international human rights convention to which Australia is a party can also serve as an indication of the value placed by Australia on the rights provided for in the convention and, therefore, as indicative of contemporary values.

56    None of this means that an administrative decision-maker commits a jurisdictional error if he or she does not give such a contemporary value weight in the exercise of a discretion. It is trite law that the ground of failure to take into account a relevant consideration can only be made out if a decision-maker fails to take into account a consideration which he is bound to take into account in making that decision, and that if such considerations are not expressly stated in the statute, they may be determined by implication from the subject-matter, scope and purpose of the Migration Act: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40 (Mason J). There is no express requirement in the Migration Act or Direction 65 that a body making a decision under s 501CA(4) must take the asserted Family Law Act interests into account, and no argument was advanced as to how any implied requirement might arise.

57    Consistently with that, in Schoenmakers v Director of Public Prosecutions (1991) 30 FCR 70 at 75 (a decision on which Mr Meyrick relied even though it was overruled in United Mexican States v Cabal [2001] HCA 60; (2001) 209 CLR 165) French J held that where certain statutory provisions 'do, as in the case of the Extradition Act [1988], allow for normative judgments of the special circumstances under which bail may be granted, then the presumptions arising under the common law and in relevant international instruments may be taken into account' (emphasis added). In McKellar v Smith [1982] 2 NSWLR 950 at 962F, Miles J observed that provisions of the Racial Discrimination Act 1975 (Cth) and various international instruments 'contain provisions and establish standards which may be relevant to the exercise of judicial discretion' (emphasis added). In R v Togias [2001] NSWCCA 522; (2001) 127 A Crim R 23 at [85], Grove J said of the Convention on the Rights of the Child that '[i]ts proclamation and discernible aims are available to be considered in a sentencing exercise and should be so considered in an appropriate case' (emphasis added). There is no need to multiply the examples further. None of these authorities establish that an administrative decision-maker commits a jurisdictional error in failing to give weight to a right, value or interest recognised by statute, international instrument or the common law. I therefore do not accept that Mr Meyrick has established any jurisdictional error by the Tribunal in failing to give weight to the interests said to be recognised by the Family Law Act.

58    Fourth, I do not, in any event, accept the assumption made in the preceding discussion, that Direction 65 is inconsistent with the Family Law Act. It would be wrong to take one provision from that legislation out of its context in order to characterise it as right or interest which must always take precedence over other considerations. While the use of the terminology of 'rights' in s 45(2)(a) and (b) of the Family Law Act may make that approach tempting, when those provisions are read in the context of the Act as a whole it is clear that even that Act does not treat the 'right' of children to know and be cared for by both their parents and their 'right' to spend time on a regular basis with both their parents as inviolable in all circumstances.

59    Section 45(2) itself describes the 'rights' as principles underlying the object of Part VII of the Family Law Act, so arguably they go no further than that Part. And importantly, the principles are qualified by an acknowledgement that they do not apply when it is or would be contrary to a child's best interests. In other words, they are qualified by the very thing which, in accordance with Direction 65, the Tribunal was treating as a primary consideration: the best interests of Child B. So at that level Direction 65 is consistent with s 45(2). The Tribunal has made a finding about the primary consideration of the best interests of the child, which is also consistent with s 45(2).

60    It is true that at the next level of detail down, para 13.2(4) of Direction 65 identifies various circumstances which can point to a conclusion that revoking the cancellation of the visa is not in the best interests of the child. But neither those more detailed provisions nor the Tribunal's findings made pursuant to them are inconsistent with the Family Law Act. In s 60CC(2) and s 60CC(2A) the 'primary consideration' for the purposes of parenting orders of the 'benefit to the child of having a meaningful relationship with both of the child's parents' is expressly subordinated to the other primary consideration of 'the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence'. I have added the emphases there because, while there is no suggestion that Mr Meyrick has abused his children, the Tribunal's findings show that it was concerned that Child B may be exposed to family violence.

61    Then, when one reaches the additional considerations in s 60CC(3), one finds a range of matters, some of which may favour a parenting order that results in a particular parent looking after and spending time with the child, and others which may point the other way. There is no absolute right of a child to be brought up by both parents which overrides all other considerations. In short, like para 13.2 of Direction 65, s 60CC(3) guides the court in what must always be a considered weighting of the factors relevant to each case.

62    Indeed, many of the mandatory considerations in s 60CC bear a resemblance to factors which are mandatory considerations, where relevant, under Direction 65. For example, the court must consider:

(1)    any views expressed by the child (s 60CC(3)(a)) - compare Direction 65 para 13.2(4)(f);

(2)    the nature of the relationship of the child with each parent (s 60CC(3)(b)(i)) - compare Direction 65 para 13.2(4)(a);

(3)    the likely effect on the child of any separation from either of his or her parents (s 60CC(3)(d)(i)) - compare Direction 65 para 13.2(4)(d); and

(4)    any family violence involving the child or a member of the child's family (s 60CC(3)(j)) - compare Direction 65 paras 13.2(4)(g) and 13.2(4)(h).

63    So the importance of a child knowing and being cared for by both parents, as recognised in Part VII of the Family Law Act considered as a whole, is not inconsistent with Direction 65. To the contrary, the values and objects embodied in each are consonant with those of the other. They are not on all fours in every respect and one would not expect them to be; they are different instruments which in different ways govern quite different subject matters. But there is no fundamental inconsistency. Direction 65 recognises the importance of a child having a relationship with both parents, where that is not contrary to the child's best interests. It does so, for example, by requiring the decision-maker to assess what is in the child's best interests having regard to matters such as the nature of the relationship with the non-citizen and the impact of separation on the child.

64    An examination of the process the Tribunal followed here also shows that it applied Direction 65 in a way consistent with Part VII of the Family Law Act. In its reasoning as summarised above, the Tribunal had regard to a range of factors. Some of them pointed towards revocation being in the best interests of Child B. They included the apparent willingness on the part of both parents that Mr Meyrick develop a positive relationship with the child. So the Tribunal accepted that the child may benefit from Mr Meyrick's support and involvement in her upbringing. But there were factors pointing in the other direction. Given his history of offending and unmet treatment needs, there was a risk that he would not be a positive role model. And there was no submission in this proceeding that the Tribunal was wrong to have regard to the contention made on behalf of the Minister that Mr Meyrick had a propensity towards domestic violence. In the absence of some challenge to the correctness of that view, it was not, and could not have been, contended that the Tribunal was wrong to have regard to it as a factor in favour of non-revocation.

65    In short, as will often be the case, there were factors pointing both ways. Of course, if the non-citizen has a history of abusing the child, that will be a powerful factor against a finding that it is in the child's best interests to revoke the cancellation. It will no doubt make even a neutral finding about that matter unlikely. I repeat that there is no suggestion of such abuse in Mr Meyrick's case. But that is hardly the only possible circumstance which indicates that cancellation of the visa is in the best interests of the child. And as Uelese confirms, sometimes the considerations will be equally balanced, so the finding is a neutral one.

66    As for the other 'interest' on which Mr Meyrick relies, parental responsibility, his submissions did not make it clear how Direction 65 is inconsistent with that. The presumption of equal shared parental responsibility embodied in s 61DA of the Family Law Act relates solely to the decision-making responsibilities of both parents: see Family Law Amendment (Shared Parental Responsibility) Bill Revised Explanatory Memorandum (2006) at [128]. The other provisions on which Mr Meyrick relies relate essentially to the financial responsibility of a parent to maintain the child. If Mr Meyrick is forced to go to the United Kingdom without the children, that will inevitably make it harder for him to discharge those responsibilities. But it can hardly be asserted that the additional difficulty reveals any fundamental inconsistency between Direction 65 and Child B's asserted interests in that regard. No argument to that effect was developed. And any attempt to do so would face the obvious problem that a wide range of administrative actions taken by government may significantly impede an individual's capacity to discharge parental responsibilities. Any submission that those actions are thereby invalid would be an ambitious one to make.

67    Since there is, in my view, no inconsistency between Part VII of the Family Law Act and Direction 65, it follows that I do not accept the submission that the latter was ultra vires due to repugnancy with the former.

68    Generally, the approach which Mr Meyrick's counsel asks the court to take involves removing particular provisions out of their context in Part VII of the Family Law Act and elevating them to absolute requirements, so that any decision said to be inconsistent with them involves jurisdictional error. It will be apparent that I do not accept that any part of that approach is correct.

The Convention on the Rights of the Child

69    Mr Meyrick submitted that the Convention informs the correct understanding and application of paras 13(2)(b), 13.2(1) and 13.2(4) of Direction 65. He submitted that certain provisions of the Convention 'contemplate a child having a relationship with both parents', and that the finding that the best interests of Child B neither weighed for or against revocation of the cancellation of the visa effectively denied the child a relationship with her father.

70    I do not accept Mr Meyrick's submissions based on the Convention. Much of what I have already said goes a long way towards explaining why. First, I do not accept that the finding effectively denied Child B a relationship with both parents. Second, although it may have been open to the Tribunal to have regard to the Convention in the exercise of its discretion, it does not follow that the Tribunal fell into error when it omitted to do so. In Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 at [101], McHugh and Gummow JJ described as established the doctrine that international obligations are not mandatory relevant considerations attracting judicial review for jurisdictional error. Third, there was nothing inherently wrong with the Tribunal's finding that the best interests of a child neither weigh for or against revocation, and there were factors pointing both ways in this case which meant it was open to the Tribunal to make that finding. It cannot be suggested that the fact that provisions of the Convention contemplate a child having a relationship with both parents means that it was not open to weigh the various factors about the best interests of Child B in the way that the Tribunal did.

71    How might the Convention affect the construction of Direction 65? I have noted above how s 60B(4) of the Family Law Act provides that an additional object of Part VII of the Act is to give effect to the Convention. This, no doubt, reinforces the importance of the Convention in the interpretation of Part VII. But it says nothing about the Migration Act or instruments made under it, and it was not suggested that it somehow makes the Convention part of Australian law.

72    Nor was any submission made, in reliance on Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273, that the Tribunal did not meet a legitimate expectation arising as a result of Australia's ratification of the Convention. Such a submission may have been difficult to sustain in light of the serious doubts about that aspect of Teoh, and about the usefulness of the concept of legitimate expectation in contemporary administrative law, which four members of the High Court expressed in Lam.

73    Mr Meyrick appeared to rely instead on a submission that certain articles of the Convention should have informed the correct understanding and application of para 13.2 of Direction 65. He thereby seeks to apply the principle enunciated by Mason CJ and Deane J in Teoh (at 287-288), requiring the courts to favour a construction of legislation including delegated legislation which, as far as the language of the legislation permits, is in conformity and not in conflict with Australia's international obligations.

74    In my view there is room for doubt as to whether Direction 65 is subordinate or delegated legislation. It is an instrument made by an officer of the executive pursuant to a specific statutory power authorising him to make directions about the performance of functions or the exercise of powers by other members of the executive: see Migration Act s 499(1). In Commonwealth v Grunseit (1943) 67 CLR 58 at 82, Latham CJ described a general distinction between legislation, which determines the content of a law as a rule of conduct or a declaration as to power, right or duty and executive authority, as applying the law in particular cases. It is not abundantly clear on which side of that distinction Direction 65 falls. See Mortimer J's discussion of the character of a predecessor direction in Williams v Minister for Immigration and Border Protection [2014] FCA 674; (2014) 226 FCR 112 at [22]-[32]. However, other directions made pursuant to s 499 of the Migration Act have been held to be a species of delegated legislation: Rokobatini v Minister for Immigration and Multicultural Affairs [1999] FCA 1238; (1999) 90 FCR 583 at [42] (Katz J, Whitlam and Gyles JJ not commenting on the question); and Minister for Immigration and Citizenship v Anochie [2012] FCA 1440; (2012) 209 FCR 497 at [24]-[25] (Perram J).

75    In any event, taxonomic debate of this kind is commonly avoided in the context of judicial review of the exercise of powers which are ambiguously legislative and/or judicial: see e.g. Arthur Yates & Co Pty Ltd v Vegetable Seeds Committee (1945) 72 CLR 37 at 80 (Dixon J); and Latitude Fisheries Pty Ltd v Minister for Primary Industries and Energy (1992) 110 ALR 209 at 228 (French J). It should probably be avoided here too; it seems sensible to apply, as a canon of construction, the assumption that the Minister, prima facie, intended to give effect to Australia's obligations under international law. I will therefore take the approach that the court should favour a construction of Direction 65, as far as its language permits, that is in conformity and not in conflict with the Convention. That is the strong form of the principle as enunciated by Mason CJ and Deane J in Teoh.

76    However, for reasons I have given in relation to the Family Law Act, the one provision of the Direction which Mr Meyrick submitted should be read in a certain way (para 13.2(4)(a)) is not open to be read that way. The language of para 13.2(4)(a) of Direction 65 is not susceptible of a construction which means it is only applicable to non-parental relationships.

77    Mr Meyrick's submissions said that he relied on the following articles of the Convention:

(1)    Art 3, which requires that in all actions concerning children, the best interests of the child shall be a primary consideration;

(2)    Art 4, obliging states to take measures for the implementation of the rights recognized in the Convention;

(3)    Art 5, requiring states to respect the responsibilities, rights and duties of parents and others and to provide appropriate direction and guidance in the exercise by the child of the rights recognized in the Convention;

(4)    Art 7, which relevantly provides that the child 'shall have … as far as possible, the right to know and be cared for by his or her parents';

(5)    Art 9, which provides, among other things, that states 'shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child'; and

(6)    Art 18, which recognises the 'principle that both parents have common responsibilities for the upbringing and development of the child', and provides that parents or legal guardians 'have the primary responsibility for the upbringing and development of the child'.

78    However no submissions were directed to how any of those provisions, in particular, were inconsistent with any particular provisions of Direction 65. In those circumstances, while I have doubts about whether there is any such inconsistency, it is undesirable to express any firm view on the subject. I note that in the case of Art 3, at least, the requirement in Direction 65 that a decision-maker consider the best interests of minor children may be seen to further Australia's treaty obligations: XFKR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 323 at [95] (Wheelahan J). But what has been said already is sufficient to dispose of this aspect of ground 2.

The common law principle of parental responsibility

79    Mr Meyrick's counsel referred to Re D (a child) [2019] UKSC 42 at [131] where Lord Carnwath (in dissent) held that the principle of parental responsibility is an important one in the common law. He submitted that the Tribunal's finding that the best interests of Child B did not weigh either for or against the revocation of the cancellation of the visa was inconsistent with 'that right'. While there were general submissions about the presumption of statutory interpretation known as the principle of legality, there was no submission that the principle of parental responsibility somehow affected the construction of the Migration Act or Direction 65.

80    Instead, Mr Meyrick submitted that Direction 65 is ultra vires because delegated legislation is invalid if it is repugnant to the common law. He relied on Re Lynch; Ex parte Reid (1943) 43 SR (NSW) 207 at 215. But that authority does not support his case. In it, Jordan CJ listed (at 215, in obiter dicta) the various rules under which a regulation can be invalid. The one on which Mr Meyrick appears to rely is that a regulation will be invalid:

… if it is repugnant to some other statute … or to the general law: L. M. & S. Railway Co. v. Greaver [[1937] 1 KB 367 at 376]; e.g. by attempting to prevent resort to the Courts: R &W Paul Ltd v The Wheat Commission[[1937] AC 139 at 153-5] …

81    The nature of the repugnancy to which Jordan CJ referred is revealed in the first of the cases which his Honour cited in support of that part of the proposition, London, Midland & Scottish Railway Company v Greaver [1937] 1 KB 367. There, at 376 Lord Hewart CJ (Swift and Du Parcq JJ agreeing) quoted with approval the following passage from Gentel v Rapps [1902] 1 KB 160 at 165 (Channell J):

On the question of repugnancy I repeat what I have said before. A bye-law is not repugnant to the general law merely because it creates a new offence, and says that something shall be unlawful which the law does not say is unlawful. It is repugnant if it makes unlawful that which the general law says is lawful. It is repugnant if it expressly or by necessary implication professes to alter the general law of the land.

82    Channell J appears to have been referring to what he said earlier in White v Morley [1899] 2 QB 34 at 39:

A by-law … is not bad because it deals with something that is not dealt with by the general law. But it must not alter the general law by making that lawful which the general law makes unlawful; or that unlawful which the general law makes lawful.

83    In the second case cited by Jordan CJ, R & W Paul Ltd v The Wheat Commission [1937] AC 139 at 153, Lord MacMillan referred to:

the general principle that the subject cannot be deprived of his right to resort to the Courts of law of his country except by express enactment, and [the Law Lords] find in the statute no words expressly ousting the jurisdiction of the Courts or expressly authorizing the Wheat Commission to frame by-laws which shall have this effect.

84    That the principle is concerned with inconsistency with fundamental rights like the right to resort to the courts is confirmed by the list of examples found at Pearce, Delegated Legislation in Australia (5th ed) 19.27-19.36.

85    Here, at most, the application of Direction 65 in particular cases may lead to an outcome which makes it harder, perhaps even impossible, for a particular parent to fulfil parental duties, so as to act consistently with a principle which the common law recognises as important. That is not the sort of repugnancy that is required to render delegated legislation ultra vires (if delegated legislation is what Direction 65 is). Direction 65 makes nothing lawful which is unlawful, and nothing unlawful which is lawful. Nor does it deprive any person of a fundamental right, such as the right to have recourse to the courts of Australia.

86    Also, as I have indicated, it is not the finding that the best interests of Child B neither weighed for or against the revocation of the cancellation that is inconsistent with the asserted 'right'. If anything is, it will be the deportation of Mr Meyrick consequent upon a decision which the Migration Act made mandatory, and a subsequent discretionary decision, expressly authorised by that Act, not to revoke that cancellation. Repugnancy to the common law cannot invalidate that legislation (and, once again, no argument was advanced as to how the presumption of legality might require it to somehow be read down).

87    I do not uphold ground 2.

Ground 4 - the effect of revocation on Ms Ebony Bond

88    There was evidence that Mr Meyrick was the de facto step father of Ebony Bond, a daughter of Rebecca Bond. Ground of review 4 contends that the Tribunal committed jurisdictional error by failing to consider the relationship between Mr Meyrick and Ebony. (Intending no discourtesy, in this section of my reasons I will usually refer to different members of the Bond family by their first names, to avoid confusion between them.)

89    Ebony was not less than 18 years old at the time of the Tribunal's decision, so para 13.2 of Direction 65 did not make her best interests a primary consideration. But para 14(1)(b) of required the Tribunal in deciding whether to revoke the mandatory cancellation of Mr Meyrick's visa, to take into account, where relevant, '[s]trength, nature and duration of ties'. Paragraph 14.2(1)(b) expands on this by referring to the 'strength, nature and duration of ties to Australia'. It goes on to say:

Reflecting the principles at 6.3, decision-makers must have regard to:

…

b)    The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non-citizen's immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).

90    Of the principles in para 6.3, the one that is most directly relevant is that:

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

91    In its consideration of the strength, nature and duration of ties to Australia, the Tribunal started by noting that Mr Meyrick came to the country at the age of seven and has remained here since then. It considered the effect of removal from Australia on him and on his elderly parents, who are also in Australia. It noted evidence from the parents and Mr Meyrick's brother, and evidence about his relationship with his current de facto partner, Lauren Brook. It specifically mentioned that it noted Ms Brook's statement 'that she and Mr Meyrick had considered making a permanent move to another state, in the context of the available evidence that Mr Meyrick's family, including his ailing parents and his children, reside in Western Australia'. It also referred to Mr Meyrick's relationship with Tahlia Boardman, a relative of Rebecca Bond who calls Mr Meyrick 'uncle'. The Tribunal quoted evidence from Ms Boardman that if Mr Meyrick were to be removed from Australia, it would adversely affect her mental health.

92    The Tribunal then quoted submissions by the Minister acknowledging that Mr Meyrick has substantial ties to Australia but saying that these should be given less weight because he began offending at a young age and has offended persistently since. The 'young age' was in fact, 17. Counsel for the Minister submitted that the Tribunal was not mandatorily required to have regard to the best interests of Rebecca Bond's mother, Dianne Bond, or of Tahlia Boardman, because 'immediate family' in Direction 65 has the same meaning as in the Migration Regulations 1994 (Cth), meaning only the spouse, parents or children of the non-citizen.

93    The Tribunal then held, relevantly:

130.    In considering the strength, nature and duration of Mr Meyrick's ties to Australia, the Tribunal has taken into account the matters addressed at paragraph 116 to 129 above, along with:

…

(b)    the letters of support before the Tribunal from his partner, family, friends and others (A1, A2 and A3 and within the G documents). The authors of these letters, relevantly, offer their support for Mr Meyrick to remain in Australia …

131.    The Tribunal accepts that Mr Meyrick has family and social ties in Australia and that his immediate family, particularly his parents, may experience some hardship if Mr Meyrick returned to the United Kingdom. Mr Meyrick arrived in Australia at a young age and hence the Australian community may afford him a somewhat higher tolerance of his offending conduct. However, the Tribunal considers that any positive contributions Mr Meyrick may have made in the community through his plastering work and education is [sic] limited and of intermittent duration and are far outweighed by the duration and seriousness of his offending conduct and the related burden it has placed on community resources.

132.    The Tribunal finds that on balance, the strength, nature and duration of Mr Meyrick's ties to Australia weigh in favour of revocation of the mandatory cancellation of the visa.

94    It is also relevant to note that earlier in its decision (at para 17), the Tribunal mentioned that Dianne Bond and Ebony Bond had given evidence and were cross-examined, and had provided letters of support earlier. At para 19 it said that it had taken into account letters of support previously provided and contained within the G documents, including a letter of support from Rebecca (from 2010), an undated letter of support from Ebony and two letters of support from Dianne.

95    The letter from Ebony said that Mr Meyrick had been the only father figure in her life, that he had been a father to her for over 18 years, and that she appreciated him treating her as if he was her own daughter. She said that she and her 12-year-old sister (Child A) had a very close relationship with him and 'it would truly devastate us if Craig was forced to leave the country. If Craig were to be deported, it would have an extremely negative impact on Craig's future, and also myself and my sister's future'. It was suggested in submissions that the Tribunal also received another letter from Ebony and a third letter from Dianne but only the latter went into evidence before me. After receiving it, however, it emerged that the Tribunal had rejected both those letters because they were not received within the time period required by s 500(6J), so I have not had regard to the third letter from Dianne.

96    One of Dianne Bond's earlier letters referred to Mr Meyrick as a devoted father and step father of her two granddaughters (that is, Child A and Ebony) and said that it would be detrimental for Child A and Ebony (who was then 11½) if he were to be removed from Australia. The letter said 'Craig is the only father that Ebony has ever known. It is obvious that the two would both suffer badly'. The other letter from Dianne which the Tribunal received made similar representations. So did the letter from Rebecca.

97    The evidence adduced from Ebony Bond at the hearing went to matters other than the effect on her of non-revocation of the cancellation of the visa. She did not, in that evidence, repeat or amplify the statements made in the letters.

98    A failure to comply with Direction 65 may amount to jurisdictional error: VKTT v Minister for Home Affairs [2019] FCA 1018 at [19] (Burley J), and the authorities referred to there. In determining whether the Tribunal failed to have regard to the effect of non-revocation on Ebony, the following principles apply:

(1)    A requirement, whether imposed by common law or by statute, to consider a matter involves a decision-maker engaging in an 'active intellectual process' directed at that matter: Tickner v Chapman (1995) 57 FCR 451 at 462 (Black CJ); NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134; (2005) 147 FCR 51 at [46] (Hill J), [212] (Madgwick J); and Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352 at [45] (Griffiths, White and Bromwich JJ).

(2)    'What is required is the reality of consideration by the decision-maker. On judicial review the Court must therefore assess, in a qualitative way, whether the decision-maker has as a matter of substance had regard to the representations put': Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216; (2018) 267 FCR 643 at [45] (Rares and Robertson JJ).

(3)    '… [W]here decisions might have devastating consequences visited upon people, the obligation of real consideration of the circumstances of the people affected must be approached confronting what is being done to people. This obligation and the expression of its performance is not a place for decisional checklists or formulaic expression': Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; (2018) 267 FCR 628 at [3] (Allsop CJ).

(4)    The degree of consideration which is necessary for the jurisdiction to have been exercised in a manner which is authorised is affected by the centrality to the issues of the matter in question, and the prominence the matter assumed: Singh v Minister for Home Affairs [2019] FCAFC 3; (2019) 267 FCR 200 at [37(1)]. While this was not said in the context of a matter which was specifically and expressly made mandatory by statute (or a direction with statutory authority), it seems to me that it still applies, provided proper allowance is made for the fact that the mandatory nature of the specific consideration will itself affect its centrality and prominence. In the end it is, with respect, a dictate of common sense; if not much is said about a matter in the material before the Tribunal, passing reference to it in reasons will be less likely to support the inference that it was not given adequate consideration.

(5)    Section 43(2B) of the Administrative Appeals Tribunal Act 1975 (Cth), which requires the Tribunal to include in its reasons its findings on material questions of fact, only requires the Tribunal to set out the findings of fact which in its opinion are material: Appellant V324 of 2004 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 259 at [8] (Hill and Allsop JJ).

(6)    So if the Tribunal's reasons do not mention a factor, the consideration of which is mandatory under Direction 65, it does not necessarily follow that it has failed to consider that factor. Section 43(2B) entitles the court to infer that any matter not mentioned in the Tribunal's reasons was considered by the Tribunal not to be material: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [69] (McHugh, Gummow and Hayne JJ), a case about s 430 of the Migration Act, but s 43(2B) of the Administrative Appeals Tribunal Act is not materially different.

(7)    It seems to me that the same can be said of the express qualification in Direction 65 that the mandatory factors for consideration are only mandatory 'where relevant'. The Tribunal was required to form an opinion about the relevance or otherwise of each factor, but in this context relevance is not a jurisdictional fact that the court must determine for itself: SZTMD v Minister for Immigration and Border Protection [2015] FCA 150; (2015) 150 ALD 34 at [20] (Perram J); and Minister For Home Affairs v HSKJ [2018] FCAFC 217; (2018) 363 ALR 325 at [44].

(8)    However the inference referred to in Yusuf is not mandatory. The manner in which a statement of reasons is drawn and its surrounding context may detract from or displace the inference; for example because there is material that is so obviously relevant that it is unthinkable that the Tribunal would not have referred to it if it had actually considered it: SZTMD at [19].

(9)    It is not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the relevant criteria and some contentions misconceived: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593 at [46] (French, Sackville and Hely JJ).

(10)    It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality: Applicant WAEE at [47].

(11)    It falls to the applicant to establish a basis for drawing the inference necessary to make out the alleged jurisdictional error: Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594 at [67] (Gummow J).

(12)    The reasons should not be scrutinised minutely and finely with an eye keenly attuned to the perception of error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272. A conclusion that the decision-maker has not engaged in an active intellectual process 'will not lightly be made and must be supported by clear evidence, bearing in mind that the judicial review applicants carry the onus of proof': Carrascalao at [48].

(13)    'Excluding obvious cases, the determination of whether the decision-maker has given active intellectual consideration to a representation will frequently be a matter of impression reached in light of all of the circumstances of the case. In this context, whether or not the reasons of the decision-maker fall "on the wrong side of the line", to quote Lafu at [49], will be a matter of inference to be drawn in particular from the manner in which the representation was advanced, and the structure, tone and content of the decision-maker's reasons': Navoto v Minister for Home Affairs [2019] FCAFC 135 at [89] (Middleton, Moshinsky and Anderson JJ).

(14)    Each case necessarily turns on its own particular facts and circumstances as established by the evidence: Minister for Home Affairs v Omar [2019] FCAFC 188; (2019) 373 ALR 569 at [36(e)].

99    Some aspects of the Tribunal's decision in the present case suggest that it failed to give adequate consideration to the effect of non-revocation on Ebony. That she was his de facto step-daughter was nowhere challenged, there was evidence that non-revocation would leave her devastated, and there was no reason to doubt that this would be so. Yet there is no express mention of Ebony in the part of the Tribunal's reasons that deals with the strength, nature and duration of ties to Australia. There, is, however, express mention of Tahlia Boardman, who was not a biological or step-child of Mr Meyrick. That may support an inference that the Tribunal overlooked Ebony.

100    There, are, however, matters pointing the other way. The Tribunal did specifically mention the letter from Ebony earlier in its reasons, as well as the letters from her grandmother, Dianne, which made representations about the impact of the removal of Mr Meyrick on Ebony. It then referred to the letters of support in the part of the decision concerning strength, nature and duration of ties. It referred to the possibility that Mr Meyrick and Ms Brook might move away from Western Australia even if he was not removed from Australia, suggesting it had regard to the possibility that he would be separated from other family members including Ebony anyway. The fact that the Tribunal mentioned Ms Boardman expressly in this part of its reasons, and not Ebony, is explicable by the fact that Ms Boardman's evidence was about special vulnerability arising from her mental health. In light of those matters and the caution expressed in the authorities against making such inferences lightly, I am not prepared to infer that the Tribunal did overlook or fail to consider the material about Ebony.

101    The Tribunal's ultimate findings were that Mr Meyrick had family and social ties in Australia and that his immediate family, particularly his parents, may experience some hardship if he were to return to the United Kingdom. It found that on balance, the strength, nature and duration of his ties to Australia weighed in favour of revocation of the cancellation of the visa. As a matter of impression, the Tribunal's reasons were careful and considered and I am not persuaded that its approach to the interests of Mr Meyrick and his family was cursory or formulaic (which I say not because that is the test, but because it is a matter relevant to the overall inferences I must draw). In my view, the Tribunal's omission to make any express finding specifically about Ebony is because that finding was subsumed in the findings of greater generality to which I have just referred. I do not find that it failed to have regard to the effect of non-revocation on Ebony or otherwise failed to give adequate consideration to Mr Meyrick's relationship with her.

102    If I am wrong about that and the Tribunal did fall into error in this way, I would not find that the error was material in the sense required for it to be a jurisdictional error. Direction 65 did not make Ebony's interests a primary consideration. On the matters that were primary considerations, the Tribunal found that the best interests of Child A weighed in favour of revocation to a marginal extent only and the best interests of Child B weighed neither for nor against. But the Tribunal was clearly concerned that the risk of Mr Meyrick reoffending was unacceptable and found that, while his long residence in Australia from a young age would increase the tolerance of the Australian community for his offending, the expectations of the community nevertheless weighed against revocation. Para 8(4) of Direction 65 provides that primary considerations should generally be given greater weight than the other considerations, although 'other' considerations can outweigh primary considerations in an appropriate case: see Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 at [23]-[25] (Colvin J). But there is no basis for concluding that the Tribunal here did consider or would consider this to be such a case, whether by reference to the impact of separation on Ebony or for any other reason.

103    The Tribunal's finding on the 'other' consideration of strength, nature and duration of ties was in Mr Meyrick's favour. Without in any way wishing to discount the importance of the matter to Ebony, her interests were among many which the Tribunal had to take into account, including those of Mr Meyrick's minor children and parents. She was not a child at the time of the Tribunal's decision and there was no material before the Tribunal suggesting she had any special vulnerabilities. I am not persuaded that some hypothetical further level of consideration of Mr Meyrick's relationship with Ebony could realistically have resulted in a different decision: see Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 at [45] (Bell, Gageler and Keane JJ).

104    I do not uphold ground 4.

Ground 5 - alleged failure to take account of statement of Lauren Brook

105    Ms Brook is Mr Meyrick's current partner. He was convicted of assaulting her on 2 August 2015. A written statement from her was before the Tribunal. I will set out relevant excerpts shortly, but broadly speaking it supported Mr Meyrick staying in Australia and contained representations which might be thought to mitigate the seriousness of the offence. By ground 5, he contends that the Tribunal committed jurisdictional error by failing to take account of the statement. This is said to be a breach of the requirements in paras 13.1(2)(a) and 13.1.1(1) of Direction 65.

106    Paragraph 13.1(2)(a) required the Tribunal to give consideration to the nature and seriousness of Mr Meyrick's conduct. Paragraph 13.1.1(1) sets out a range of factors to which the Tribunal was required to have regard in the course of that. But Mr Meyrick did not rely on any specific factor, and appeared to be referring to the provision as another source of the obligation to consider the nature and seriousness of Mr Meyrick's conduct.

107    Mr Meyrick's submission was that the wishes of Ms Brook as the victim, and her view of the nature of the crime, were relevant to that matter. But the submission did not make it clear how they were mandatorily relevant, so that failing to consider them could be a jurisdictional error. The question of her wishes as a victim of the crime, and the impact of revocation on her, is the subject of ground 6, which is addressed below. As for her views about the nature of the crime, it was not clear whether Mr Meyrick was submitting that the statement should have been considered solely because its contents were relevant as, if accepted, they meant the conviction was less of a concern. If so, I do not accept this follows as a matter of course. The Tribunal was not required to refer to every piece of evidence: see [98(9)] above. While, in Applicant WAEE, the Full Court went on to say that it may be that some evidence is irrelevant to the relevant criteria, the converse, that if a piece of evidence is logically relevant it must be referred to, would impose far too onerous a burden on busy administrative decision-makers. Section 43(2B) of the Administrative Appeals Tribunal Act only required the Tribunal to include in its reasons its findings on material questions of fact, and a reference to the evidence or other material on which those findings were based.

108    The true question, arising from the principles I have summarised above, is whether in light of the importance of Ms Brook's statement, a failure to refer to it in the reasons leads to an inference that the Tribunal failed to give the requisite active intellectual engagement to the nature and seriousness of Mr Meyrick's conduct.

109    The presently relevant conviction was for unlawful assault doing bodily harm in circumstances of aggravation. It resulted in a six month concurrent sentence of imprisonment. Mr Meyrick was also convicted of being armed or pretending to be armed in a way that may cause fear. Both convictions related to the same incident. Mr Meyrick went to Ms Brook's place of employment at a sporting complex with a baseball bat over his shoulder, demanding to speak to her. There were patrons of the complex present, and the sentencing magistrate found that they included numerous children and their parents. Mr Meyrick and Ms Brook argued outside the complex, and he spat in her face and head butted her in the forehead.

110    Ms Brook's statement to the Tribunal expressed her wish to 'attest to his need not to get deported and to stay as a resident in Australia'. It noted that Mr Meyrick grew up with an abusive father. It said that he was 'on a drinking bender that weekend' and that they had a 'misunderstanding' which 'escalated … up to the incident that took place at my work place'. It described the charge as one of 'minor assault' and said (punctuation in original), 'as to my decision to not agree on making a statement due to i felt it was unnecessary and disagreed that I was assaulted as police was misjudging a head shove as a head-butt that they had seen on the venues cctv footage'. The statement described Mr Meyrick's subsequent efforts to work on his ability to control his actions and turn his life around, described him as 'warm hearted' and said he would 'never hurt anybody' and expressed further support for him staying in Australia.

111    The Tribunal said it had admitted the statement into evidence and that it had 'also taken into account' letters of support previously provided and contained in the G documents including a further letter of support from Ms Brook. That letter also expressed a wish that Mr Meyrick stay in Australia and praised his character in similar terms to the statement given to the Tribunal, but it did not refer to the convictions arising from the incident in 2015. Subsequently (in considering the strength, nature and duration of ties to Australia) the Tribunal noted the statement and Ms Brook's earlier letter of support in connection with Mr Meyrick's statements about 'the strength and closeness of his relationship with Ms Brook, and their future plans' and his concern that removing him from Australia would end their relationship and chance of a future together. Other than that, the Tribunal did not refer to the statement.

112    I do not accept that this leads to any inference that the Tribunal did not display an adequate level of intellectual engagement to the question of the nature of Mr Meyrick's offending or the risk he might pose to the Australian community. The Tribunal gave detailed and thorough consideration to Mr Meyrick's criminal history, history of substance abuse and efforts to rehabilitate. The offence in question was sufficiently important to require the Tribunal to consider it in connection with the mandatory relevant matters, and it did so in some detail. It quoted at length from the magistrate's sentencing remarks, including the following:

… The fact of the matter is though, regardless of what Ms Brook has to say about the matter [namely, references to Mr Meyrick's background, their relationship, Mr Meyrick's dealing with his substance abuse issues and her plea for leniency], those two offences are extremely serious.

Both the bolding and the square brackets are the Tribunal's. It also quoted at even greater length from Mr Meyrick's evidence to the Tribunal about the incident.

113    The Tribunal relied on the sentencing remarks as follows (at para 54):

The Tribunal also notes in the sentencing remarks that the offences against Ms Brook for which Mr Meyrick was convicted on 19 July 2017 and his conduct towards Ms Rebecca Bond on 6 September 2006 (refer to paragraph 44 above) created helplessness in a particularly distressing way towards his domestic partner at the given time. The Tribunal considers there can be no dispute that by the very nature of these offences (which are violent of themselves), the victims found themselves in a position of vulnerability. Magistrate Benn referred to Mr Meyrick's conduct in spitting in Ms Brook's face as 'degrading' and 'humiliating' (refer to subparagraph 40(d) above) (subparagraphs 13.1.1(1)(a) and 13.1.1.(1)(b) of Direction No. 65).

114    The Tribunal also concluded (at para 64):

Mr Meyrick has a history of offending over a period spanning in excess of 20 years, with offences including unlawful assault and thereby did bodily harm, domestic violence, gains benefit by fraud, criminal damage by fire, driving while under the influence of alcohol and carrying an article or being armed with intent to cause fear. The Tribunal is of the view that this is exacerbated by Mr Meyrick's carriage of a metal baseball bat at times, and at least once in the presence of children at a sporting complex as well as having head butted both Ms Rebecca Bond, the mother of his two children (R3, page 167, paragraph 11) and Ms Brook, his partner since 2012 (refer to subparagraph 40(d) above).

115    These aspects of the Tribunal's decision show ample intellectual engagement with the significance of the offence in relation to the nature and seriousness of Mr Meyrick's conduct. They also show that the Tribunal relied chiefly on the sentencing remarks. That approach cannot be impugned. In HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202 at [78]-[79] McKerracher J held that the Tribunal could not contradict or go behind the conviction, nor entertain any attempt to impugn facts found by the sentencing magistrate. Colvin J agreed with McKerracher J and added further observations which included (at [191]) that:

A convicted defendant who advances a contrary version of events without a compelling explanation as to why the criminal proceedings should not be taken as proof of the facts underlying a conviction or sentence will not provide a logically probative basis upon which to doubt the veracity of those underlying findings.

116    Mr Meyrick advanced no explanation of that kind here. In all those circumstances it may readily be inferred that, while the Tribunal had read Ms Brook's statement, it did not consider it sufficiently compelling to require specific comment in connection with the nature and seriousness of Mr Meyrick's offending.

117    If, contrary to my view, the Tribunal should have referred more specifically to the contents of the statement in order to engage adequately with that mandatory consideration, I do not consider that its omission to do so was material to its decision in the sense required to give rise to jurisdictional error. The Tribunal's ultimate finding about the primary consideration of the protection of the Australian community which is the subject of paras 13.1(2) and 13.1.1 of Direction 65 was (at para 81):

The Tribunal therefore finds that Mr Meyrick poses an unacceptable risk to the Australian community should he commit further offences or engage in other serious conduct. In these circumstances, the Australian community would expect that Mr Meyrick's visa should remain cancelled. This weighs heavily against revocation of the mandatory cancellation of the visa.

118    In light of the sentencing remarks, and Mr Meyrick's otherwise extensive criminal history and unmet treatment needs, there is no realistic possibility that a full engagement with Ms Brook's views (if that did not in fact occur) could have led the Tribunal to any different conclusion.

119    I do not uphold ground 5.

Ground 6 - the impact on Ms Brook

120    One of the considerations which the Tribunal was required to take into account where relevant was '[i]mpact on victims': Direction 65 para 14(d). Paragraph 14.4 describes this as:

Impact of a decision not to revoke on members of the Australian community, including victims of the non-citizen's criminal behaviour, and the family members of the victim or victims where that information is available and the non-citizen being considered for revocation has been afforded procedural fairness.

121    By ground of review 6 Mr Meyrick claims that the Tribunal failed to comply with this obligation because it failed 'to consider the impact of revocation [sic] of the cancellation of the … visa' on Ms Brook, the victim of the assault described above.

122    The way in which this ground is framed is confusing. That may be a reflection of the confusing way in which para 14.4(1) is framed. The confusion arises because the references to 'impact' on victims and their family members imply that what the decision-maker has to take into account is potential adverse effects on those people, as does the reference to procedural fairness for the non-citizen. After all, it is the revocation of the cancellation of an offender's visa, with the result (usually) that the offender remains in the same country as the victims, which is most likely to cause 'impact' on those victims. And yet, the direction puts the impact as a consequence of a decision not to revoke, the effect of which will be that the non-citizen will be removed from Australia. It is unclear why that would have a potentially negative impact on the victims; for example, if a violent offender is removed from Australia, those whom he offended against would not need to fear that he would violently offend against them again. Correspondingly, it is not clear why Mr Meyrick contends that the Tribunal should have considered the impact of revocation on Ms Brook when, judging from her statements, revocation of the cancellation of the visa is what she desires.

123    The issue of construction that arises out of this confusion is whether para 14.4 requires the Tribunal to consider a potentially positive effect of revocation on a victim. The Minister's submissions raised this issue in relation to ground 8 but did not cite any authority on it and the question did not receive full argument. There is also a question about whether the paragraph only applies when the 'impact' is suffered by the victim because he or she is a victim, not, for example, because he or she is a partner of the non-citizen: see Bale v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 646 at [25]-[27] (Perram J). But in view of the findings I make in the balance of these reasons it is not necessary to resolve those issues. I will assume, favourably to Mr Meyrick, that para 14.4 did require the Tribunal to consider the impact (positive or negative) of non-revocation of the cancellation on Ms Brook. She plainly was a victim of criminal conduct on the part of Mr Meyrick. I will pass over the potential contradiction that, by ground 5, Mr Meyrick effectively contended that the Tribunal should have taken into account her statement to the effect that she was not assaulted.

124    I have described most of the evidence relevant to ground 6 in connection with ground 5. In addition to that, Mr Meyrick relied on the fact that Ms Brook made what the sentencing magistrate described as a plea for leniency. It does not appear that the plea itself was before the Tribunal or in evidence before this Court, although there is transcript from an earlier hearing related to the charges where Ms Brook told a different magistrate 'I want to be with him' and that she wanted him home.

125    Mr Meyrick contends that the Tribunal effectively disregarded Ms Brook's wish that, notwithstanding his assault on her, he should be permitted to remain in Australia, and the fact that they remained in a de facto relationship which she wanted to continue.

126    I do not accept those contentions. Mr Meyrick has the onus of establishing that the Tribunal failed to give adequate consideration to the impact of non-revocation on Ms Brook. It indicated that it did have regard to Ms Brook's views, as is evidenced by its interpolation of a summary of those views in its quote from the sentencing marks (see [112] above). But it did not, and could not, go behind the sentencing magistrate's remarks, which it interpreted as establishing that the offence against Ms Brook created 'helplessness in a particularly distressing way' towards her. It also found on the basis of those remarks that Ms Brook found herself 'in a position of vulnerability' and that spitting in her face was 'degrading' and 'humiliating'. Prima facie, then, non-revocation would not have an adverse effect on her.

127    Nevertheless, the Tribunal noted later Ms Brook's statements about the strength and closeness of her relationship with Mr Meyrick (see [111] above). Clearly it had taken account of those matters. As I have indicated in connection with ground 3, it also referred to letters of support from 'his partner', that is, Ms Brook, indicating her wish for him to remain in Australia (see [93] above). It accepted that Mr Meyrick's immediate family, which can be taken to include her, would suffer hardship if he returned to the United Kingdom. That was under the 'strength, nature and duration of ties' heading, but it shows consideration of the issue.

128    Then, under the heading 'Impact on victims', the Tribunal said:

134.    The Tribunal notes the 'impact on victims' consideration in the context of:

(a)    Ms Brook and Mr Meyrick remaining in a partnership following her being the victim of his violent offending in 2015 and her being supportive of his remaining in Australia.

(b)    Ms Rebecca Bond appearing not to have pressed charges in relation to Mr Meyrick's violent conduct against her in 2006.

…

136.    The Tribunal is not in a position to elaborate any further on this consideration having not had recent evidence from Ms Brook and Ms Bond on these matters and in turn not having had the opportunity to test such evidence at hearing.

137.    As such, the Tribunal finds that the 'impact on victims' consideration weighs neither in favour nor against the revocation of the mandatory cancellation of the visa.

129    Ground 8, considered below, attacks these observations on grounds of legal unreasonableness. But it is clear from them that the Tribunal had taken Ms Brook's wishes into account, although it seems not to have given them much weight. The question of weight was a matter for the Tribunal. When all of the above is taken into account, there is no basis for the submission that the Tribunal failed to take Ms Brook's wishes into account.

130    If I am wrong about that, I would find that the error alleged was not material. That is for the reasons that are essentially the same as those I expressed in relation to ground 5. I need only add that the error here would have been a failure to consider a matter which was not a primary consideration.

131    I do not uphold ground 6.

Ground 7 - the wishes of Rebecca Bond

132    As I have said, Rebecca Bond is a former partner of Mr Meyrick and the mother of two of his biological children and of Ebony Bond who, it appears, considers him to be her step-father. Ground 7 raises arguments in relation to Rebecca which are essentially similar to the arguments raised under ground 6 in relation to Ms Brook. Save to note that Mr Meyrick and Miss Bond are no longer de facto partners, so there is no relationship of that nature she wishes to preserve, I need not describe the arguments or the relevant provisions of Direction 65 again.

133    The materials relevant to Miss Bond's wishes, and the Tribunal's reasons concerning her, may be summarised as follows. There was evidence that in 2008 a restraining order was issued against Mr Meyrick in relation to Miss Bond. That was after an altercation with a man who was talking to her in their driveway which culminated in Mr Meyrick destroying the man's car in a way that he accepted was threatening and intimidating. There was evidence of breaches of earlier restraining orders concerning Miss Bond. There was also evidence of an incident in 2006 where, Miss Bond said, Mr Meyrick grabbed her by the throat and lifted her off the ground. There was material suggesting that he head butted her on this occasion too. The Tribunal noted Mr Meyrick's evidence that it was possible she did not press charges against him for that incident, although she would have been well within her right to do so. I have set out above the Tribunal's findings about the seriousness of this conduct.

134    As with other members of Mr Meyrick's family (past and present), the Tribunal said it took into account a letter of support from Miss Bond. That letter, however, dated from 2010. It referred to Mr Meyrick as her partner, when by the time of the Tribunal decision he no longer was. It said that they had 'a stable, long term relationship with plans of marriage, and more children in the near future'. Child B was born after that time. The letter expressed support for Mr Meyrick staying in Australia, concern about the impact on him if he were to be removed, and concern about the impact of that on Ebony (who was then 12) and on Child A (who was then 4). It expressed a belief, in effect, that Mr Meyrick would rehabilitate.

135    I have described in connection with ground 2 Mr Meyrick's evidence about Miss Bond's wishes concerning his access to their children, although the Tribunal also noted in that regard that his evidence was unable to be corroborated because Miss Bond did not provide any evidence on the matter and did not appear as a witness at the hearing. I have also set out the Tribunal's acknowledgement, in relation to the 'impact on victims' consideration, that Miss Bond appears not to have pressed charges in relation to the incident in 2006.

136    The reality is that the only material before the Tribunal about Miss Bond's wishes was an inference about her apparent decision not to press charges, Mr Meyrick's evidence about her wishes in relation to the children, which was uncorroborated by her, and a letter that was 8½ years old at the time of the Tribunal's decision. The only direct evidence of Miss Bond's wishes, the letter, was written at a time when she and Mr Meyrick were still partners. It expressed hopes for the future which largely did not materialise in the ensuing years. The Tribunal said it took the letter into account and on the basis of the character of the Tribunal's reasons as a whole and its consideration of other relevant evidence which I have mentioned, I am satisfied that this was not mere lip service. There was no need for the Tribunal to say more about Miss Bond's wishes in order to display that it had engaged to an adequate degree with the impact of non-revocation on her.

137    If I am wrong about that, then if the Tribunal had considered the evidence I have described in more detail, it could not realistically have led to a different outcome. It was hardly strong evidence, and in the face of the matters I have referred to in respect of the issue of materiality under ground 5, it could not have made any difference.

Ground 8 - whether the 'impact on victims' finding was legally unreasonable

138    This ground repeats the complaints made under grounds 6 and 7 about the Tribunal having effectively disregarded the wishes of Ms Brook and Miss Bond. I have found that those complaints are not made out.

139    The ground adds, however, a contention that the matters the Tribunal referred to at para 136 of its decision (see [126] above) had no rational impact on the wishes of Ms Brook and Miss Bond. These matters, cumulatively, are said to mean that the finding that the 'impact on victims' consideration weighed neither in favour nor against revocation of the cancellation of the visa was legally unreasonable. That raises the question of whether the finding was 'illogical, irrational, or was not based on findings or inferences of fact supported by logical grounds': Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 198 ALR 59 at [4] (Gleeson CJ), as applied in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [103] and [121]-[136] (Crennan and Bell JJ).

140    In relation to Miss Bond the ground can be dismissed in short order. I have described how the direct material from her was weak in view of its less than recent provenance. There was a rational connection between the age of that material and the weight to be given to it. Considered cumulatively with the other matters on which Mr Meyrick relied, there is no basis to conclude that the Tribunal's finding as to Miss Bond was legally unreasonable.

141    The direct evidence from Ms Brook was more recent. It included a statement which was undated but was addressed to the Tribunal and, it can be inferred, was prepared shortly before the hearing. So the Tribunal's statement that it did not have recent evidence from her was incorrect. But not every error of fact is a jurisdictional error, and the reasons of the Tribunal must be read as a whole and must not be scrutinised minutely and finely. The concern expressed by the Tribunal that it did not have an opportunity to test Ms Brook's evidence at the hearing was real; she was not called as a witness. That in itself provided a logical basis for what was evidently a determination by the Tribunal not to give Ms Brook's statement great weight. Determinations as to weight are quintessentially matters for the Tribunal.

142    More broadly, as I have set out above, the Tribunal did consider the evidence from and about Ms Brook, including in connection with the 'impact on victims' consideration. It can be inferred that it carried little weight in the face of the sentencing magistrate's remarks. When the Tribunal's reasons are considered as a whole, the impugned finding could not be said to be irrational, illogical or not based on probative material. It was not a finding at which no rational or logical decision maker could arrive on the same evidence: cf. SZMDS at [130].

143    Counsel for Mr Meyrick submitted that the neutrality of the finding was itself an error. I have considered a similar point above in relation to ground 2. Since Direction 65 did not expressly require the Tribunal to make a determination about whether it was, or was not, in the best interests of victims to revoke the cancellation of the visa, there is even less basis to uphold the submission in relation to para 14.4. Sometimes, competing factors will be evenly balanced. If that is the Tribunal's conclusion after considering all relevant material conscientiously, so be it.

144    For those reasons I do not uphold ground 8. It is not appropriate to express a view on the materiality of the alleged error on the hypothesis that I am wrong and that the Tribunal's finding about the impact on both Ms Brook and Miss Bond was legally unreasonable. A finding about materiality may depend on the nature of the unreasonableness found, and on whether it pertained to Ms Brook, or Miss Bond, or both.

Ground 9 - materiality

145    This ground simply asserts that each of the other alleged errors was material to the outcome of the Tribunal's decision. I have dealt with materiality under the heading of each ground above (other than ground 8). It would not be helpful to consider the question cumulatively, on the basis of what would be a large number of possible combinations of hypothetical errors. There is no need to make a separate determination about ground 9 (or about ground 1, which merely introduced the other grounds).

Outcome

146    The application will be dismissed. The parties have agreed that in the event that the Minister is successful, Mr Meyrick should pay the Minister's costs of the application fixed in the sum of $18,500. An order to that effect will be made.

Associate:

Dated:    20 May 2020