FEDERAL COURT OF AUSTRALIA

Chandra v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 966

ORDERS

THE COURT ORDERS THAT:

1.    The originating application, as amended on 21 May 2020, be dismissed.

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

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

REASONS FOR JUDGMENT

YATES J:

INTRODUCTION

1    The applicant, David Vishant Chandra, seeks judicial review of a decision of the second respondent, the Administrative Appeals Tribunal (the Tribunal), which affirmed a decision of a delegate of the first respondent, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Minister), not to revoke the mandatory cancellation of his visa (a Class UK Subclass 820 Partner visa).

2    The applicant’s visa was granted in January 2017. It was cancelled, mandatorily, on 13 December 2018 under s 501(3A) of the Migration Act 1958 (Cth) (the Act) because the applicant did not pass the character test (having regard to the operation of s 501(6)(a) of the Act (substantial criminal record)) and because he was serving a sentence of full-time imprisonment in New South Wales for a criminal conviction (s 501(7)(c) of the Act) (the cancellation decision). The applicant applied to have the cancellation decision revoked under s 501CA(4) of the Act. On 23 August 2019, a delegate of the Minister decided that the cancellation decision should not be revoked. The applicant then applied to the Tribunal to review that decision. After a hearing conducted on 4 November 2019, the Tribunal affirmed the delegate’s decision on 19 November 2019.

3    On 11 December 2019, the applicant applied to the Court to review the Tribunal’s decision. On 21 May 2020, he filed an amended originating application. The amended originating application contains a single ground: the Tribunal engaged in jurisdictional error in its application of the mandatory relevant consideration in para 13.1.1(1)(e) of Direction No. 79, made under s 499(2A) of the Act (Direction 79).

Direction 79

4    Direction 79 is binding on the Tribunal in its decision-making. As with other Ministerial Directions given under s 499 of the Act, a failure by the Tribunal to comply with Direction 79, or to make a decision based on an incorrect understanding of it, would be an error going to the exercise of the Tribunal’s jurisdiction: Salahuddin v Minister for Immigration and Border Protection [2013] FCAFC 141; 140 ALD 1 at [21] (Flick J); Suleiman v Minister for Immigration and Border Protection [2018] FCA 594; 74 AAR 545 at [31]. Whether or not the Tribunal has complied with a Ministerial Direction is a question of fact which is usually determined by the Court undertaking a close analysis of the decision-maker’s reasons: Minister for Immigration and Citizenship v Khadgi [2010] FCAFC 145; 190 FCR 248 at [71]; Malek Fahd Islamic School Limited v Minister for Education and Training (No 2) [2017] FCA 1377 at [43].

5    In deciding whether to revoke the mandatory cancellation of a non-citizen’s visa under s 501CA(4) of the Act, a decision-maker must take into account the protection of the Australian community from criminal or other serious conduct, amongst other considerations: para 13(2)(a) of Direction 79. In considering the protection of the Australian community, the decision-maker should (must) give consideration to the nature and seriousness of the non-citizen’s conduct “to date”: para 13.1(2)(a). This requires the decision-maker to have regard to factors that include the frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness of offending: para 13.1.1(1)(e). It is convenient to refer to this as the frequency criterion. Another factor is the sentence imposed on the non-citizen for the crime or crimes committed: para 13.1.1(1)(d). It is convenient to refer to this as the sentence criterion.

6    Yet another factor is the principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed: para 13.1.1(1)(b); see also para 6.3(3) of Direction 79 which states the principle (as relevant to the present application) that a non-citizen who has committed a serious crime, particularly against women, should generally be expected to forfeit the privilege of staying in Australia.

The facts

7    The Tribunal summarised the applicant’s criminal history in Australia as follows:

(a)    possession of a prohibited drug, for which the applicant was convicted on 12 September 2018 and fined $300;

(b)    common assault; destroy or damage property less than $2000 in value; and assault occasioning actual bodily harm (domestic violence), for which the applicant was convicted on 10 October 2018 and sentenced to 12 months’ imprisonment; and

(c)    driving a vehicle while illicit drug present in blood, for which the applicant was convicted on 14 November 2018, fined $300 and disqualified from driving for three months.

8    The offences referred to in (b) arose out of an incident on 26 August 2018 which involved multiple unprovoked assaults by the applicant on his then-pregnant wife, his mother-in-law, and his brother-in-law. The assault on his wife involved the applicant firstly kicking her, and then punching her repeatedly, including punching her in the face, causing her nose to bleed. In the District Court of New South Wales, Delaney A-DCJ (when dealing with the applicant’s appeal against sentences imposed by the Local Court) described further aspects of the assault on his wife, as follows:

… These punches continued over a period of time. He stumbled and fell to the ground, obviously seriously affected by alcohol and began to lash out. He then punched the victim so hard that she fell to the ground and unable to move. He then started to walk around the car yelling and screaming before he approached the victim, tried to pick her up off the pavement and then punched her again pulling her hair.

9    The applicant also punched and kicked his mother-in-law, and kicked his brother-in-law in the face, during the same incident.

The Tribunal

10    When having regard to the frequency criterion in the course of its consideration, the Tribunal said (footnote omitted):

45.    Sub-paragraph (e) of paragraph 13.1.1(1) of the Direction points a decision-maker to the frequency of a non-citizen’s offending and whether there is any trend of increasing seriousness. To an extent, the investigatory exercise required by this sub-paragraph (e) largely mirrors that required in an application of the immediately preceding sub-paragraph (d). This is because any trend of increasing seriousness of offending is usually analogous to the regime of sentencing imposed for it. For present purposes, it cannot be said that the Applicant has a gradually evolving history of offending such that it commenced with relatively minor and non-indictable offending before graduating to more significant and indictable offences.

46.    Be that as it may, while there is no element of frequency in his offending per se, we think it is safe to conclude that his offending was of a very serious nature from its virtual outset. While not determinative of any definitive finding about weight to be allocated to this sub- paragraph (e), one negative observation made about the nature of the Applicant’s offending can be found in the sentencing remarks of the learned sentencing Magistrate. In the sentencing hearing before her, a procedural issue arose which is described in the transcript as follows:

“HER HONOUR: You knew that you needed a report.

ACCUSED: Yes

HER HONOUR: You knew that they turned up to your house on one occasion. You knew that they’d given you a letter saying ‘Come on 13 September’, and you didn’t turn up. Why should I adjourn this case, Mr Chandra? I told you very clearly when you were here last time that you were looking at a gaol sentence. The fact that you haven’t obeyed any of the Court’s directions in the meantime tends to suggest that you really don’t care about the consequences.

ACCUSED: No, your Honour. I do.

HER HONOUR: Well, its not obvious.

ACCUSED: We apologise.

HER HONOUR: Do you know how much of their time you’ve wasted? There is a queue of people, a queue waiting to see Community Corrections to see if they have alternatives to gaol. You thumbed your nose at it, Mr Chandra, which tends to suggest that you’re not taking this matter seriously at all. You’ve got no proper explanation for why you didn’t turn up on 13 September.

…

[Our underlining]

47.    The level of weight attributable to this specific sub-paragraph (e) must be tempered by the reality that the Applicant’s offending arose from an identifiable “bad phase” of offending during 2018. As we comprehend his offending history, the totality of his offending is represented by sentencing episodes having a duration of two months in 2018. While it was not necessarily frequent offending, it did involve multiple victims, and indeed, vulnerable victims. We are of the view that an application of this sub-paragraph (e) points to a finding that a measure of weight is attributable to it such as to militate in favour of non-revocation. This finding should be tempered against the relative brevity of the offending. Accordingly, a moderate level of weight should be allocated to this sub- paragraph (e) in favour of non-revocation.

The applicant’s submissions

11    The applicant submits that the Tribunal erred in interpreting the frequency criterion and, consequently, in misapplying it in reaching its decision.

12    The applicant’s case commences by pointing to the Tribunal’s observation that, to an extent, the investigating exercise required by para 13.1.1(1)(e) largely mirrors the investigating exercise required by para 13.1.1(1)(d). The applicant submits that each paragraph is directed to different subject matter and that, in its consideration, the Tribunal effectively conflated the two criteria. The applicant argues that, having found that there was no element of frequency in the applicant’s offending (a matter to which I will return), and that there was no gradually evolving history of offending from relatively minor to more significant offences, the Tribunal nonetheless attributed “a moderate level of weight” to the frequency criterion in favour of non-revocation.

13    Put simply, the applicant submits that it was not open to the Tribunal to determine that the frequency criterion of para 13.1.1(1)(e) weighed against non-revocation in circumstances where, according to the applicant, the Tribunal had found that the applicant’s offending was not frequent or characterised by a trend of increasing seriousness. As I will come to explain, I do not think that this submission adequately captures the Tribunal’s reasoning.

14    Further, the applicant submits that, by referring (in the passages quoted above) to the seriousness of the applicant’s offending, the Tribunal engaged in an element of “double-counting” at the expense of factors that were actually relevant to the frequency criterion.

15    In terms of jurisdictional error, the applicant submits that the Tribunal:

(a)    failed to comply with Direction 79 or failed to consider a mandatory consideration under Direction 79 or misapplied a mandatory consideration under Direction 79;

(b)    had regard to irrelevant considerations in the assessment and application of the frequency criterion, in that the Tribunal was “prohibited” from considering the severity of the applicant’s offences and their nature upon his victims, having regard to the subject matter, scope and purpose of its enquiry in respect of that criterion; and

(c)    engaged in unreasonable, illogical or irrational reasoning, because the Tribunal could not conclude that the frequency criterion weighed against the applicant in circumstances where it did not find his offending to be frequent or to exhibit a trend of increasing seriousness. Put another way, the applicant submits that there is no logical connection between the evidence that was before the Tribunal and its ultimate conclusion that the frequency criterion weighed against him.

16    As the applicant put it in oral submissions, these are simply alternative pathways to finding jurisdictional error which, according to him, emanates from the Tribunal’s erroneous understanding and application of the frequency criterion.

17    On the question of materiality, the applicant submits that it would be “unduly speculative” to suggest that the Tribunal would have reached the same result regardless of its error. The applicant submits that the frequency criterion was one of a number of different factors that the Tribunal was required to weigh up in its assessment of the protection of the Australian community from criminal or other serious conduct. The Tribunal identified a number of factors which, cumulatively, led to its ultimate conclusion that the protection of the Australian community weighed heavily in favour of non-revocation. According to the applicant, had the Tribunal correctly understood, and therefore correctly applied, the frequency criterion, it could have afforded different weight to that criterion in the weighing up exercise. In turn, this could have led to the Tribunal giving different weight to the protection of the Australian community, which was but one consideration to be taken into account when considering whether the cancellation decision should be revoked.

18    The applicant submits that this weighing up process is a matter for the Tribunal, not for the Court on judicial review. The task for the Court is not to undertake the weighing process for itself but merely to decide whether, absent the demonstrated error, the decision-maker could, realistically, have come to a different decision: PQSM v Minister for Home Affairs [2019] FCA 1540 at [63] and [89]; RZMW v Minister for Home Affairs [2019] FCA 1761; 168 ALD 176 at [71]-[72]. The applicant submits that, if not for its error in understanding and applying the frequency criterion, there is a realistic possibility that the Tribunal could have afforded less weight to those factors which weighed against the applicant, and thus reach a different decision. Thus, the Tribunal’s error was material to its exercise of power and its decision was affected by jurisdictional error accordingly.

Analysis

19    I am not persuaded that the applicant has established jurisdictional error in the Tribunal’s decision.

20    First, I am not persuaded that the Tribunal conflated paras 13.1.1(1)(d) and (e) and thereby misunderstood the frequency criterion.

21    Paragraph 13.1.1(1) sets out a number of factors (including the frequency criterion) to which the decision-maker must have regard when considering the nature and seriousness of the non-citizen’s conduct “to date”. The nature and seriousness of the non-citizen’s conduct “to date” is but one consideration comprising the so-called “primary considerations” involved in deciding whether the mandatory cancellation of the non-citizen’s visa should be revoked—namely, the protection of the Australian community from criminal or other serious conduct. The Tribunal referred to this as Primary Consideration A.

22    The frequency criterion has two elements: the frequency of the non-citizen’s offending and whether, in respect of that offending, there is any trend of increasing seriousness. The Tribunal’s reference to the sentence criterion, when discussing the frequency criterion, reflects no more than a generally expressed observation that a trend of increasing seriousness is likely to be discernible from the sentences that courts have imposed on the non-citizen in respect of his or her offending. That observation is unexceptionable. In substance, the Tribunal reasoned that if there is a trend of increasing seriousness of offending, one would expect this to be manifest in the sentences imposed by courts. That reasoning is also unexceptionable. Recognition of such a relationship is not conflation.

23    Secondly, I am not persuaded that the Tribunal misunderstood and misapplied the frequency criterion. On this limb of his case, the applicant submits that, properly construed, the “frequency” of offending referred to in para 13.1.1(1)(e) is confined to a consideration of frequency over time. According to the applicant, it is inapposite to refer to the “frequency” of offending by reference to one event—here, the incident involving the applicant’s wife, mother-in-law and brother-in-law. This, the applicant says, reflects the normal meaning of the word “frequency”, which is confirmed by the context provided by para 13.1.1(1)(e) itself when it refers to any “trend of increasing seriousness” of offending. The applicant submits that the word “trend” can only be understood with reference to a period or multiple periods of time, not one event in time, and that “frequency” has a complementary meaning.

24    There can be no doubt that para 13.1.1(1)(e) extends to “frequency” over time. The question raised is whether its meaning in para 13.1.1(1)(e) is limited to that understanding? The Minister submits, with some cogency, that para 13.1.1(1)(e) should be understood as directing the decision-maker’s attention to the non-citizen’s pattern of offending. Further, I note that the dictionary meaning of “frequency” includes “happening or occurring at short intervals”: Macquarie Concise Dictionary (Macquarie Dictionary Publishers, subscription service) https://www.macquariedictionary.com.au viewed 8 July 2020, which would certainly accommodate, in the present case, the multiple and separate assaults arising out of the one incident.

25    Ultimately, however, the debate presented by this aspect of the applicant’s case is arid. If it be the case that the scope of para 13.1.1(1)(e) is as confined as the applicant would have it, then there can be no doubt that the Tribunal made findings specifically addressing that scope. The Tribunal correctly identified that the frequency criterion, as expressed through para 13.1.1(1)(e), has two elements. As to the first element (frequency), the Tribunal found (at [46]), that “there is no element of frequency in [the applicant’s] offending per se”. At [47], the Tribunal said the applicant’s offending was an identifiable “bad phase” of offending in 2018 that was “not necessarily frequent offending”. In making these observations, the Tribunal was addressing “frequency” in the sense in which, the applicant says, para 13.1.1(1)(e) uses the term. Plainly, it was making specific findings thereon. In doing so, it fulfilled its obligation under para 13.1.1(1) to “have regard” to this factor, understood as the applicant contends.

26    However, as is clear, the Tribunal immediately noted that the applicant’s offending involved multiple victims and thus multiple offences. The applicant’s offences of violence against his wife, his mother-in-law and his brother-in-law were separate offences attracting separate convictions and separate punishment by the imposition of separate custodial sentences, albeit that the sentences were ordered to be served concurrently and the offences arose out of one, overall occasion of offending. This part of the Tribunal’s reasons shows that it grappled with the meaning of “frequency” and gave active consideration to the fact that the word has different dimensions. This explains the use by the Tribunal of “per se” and “necessarily” in the findings on which the applicant relies. The Tribunal’s consideration of these dimensions was apposite and relevant. It cannot be said that, by simply undertaking this consideration, it erred.

27    Moreover, although para 13.1.1(1)(e) requires a decision-maker to have regard to the frequency of the non-citizen’s offending, and the other factors (where relevant) to which para 13.1.1(1) refers, the decision-maker’s consideration is not confined to those factors when considering the nature and seriousness of the non-citizen’s criminal offending or other conduct “to date”. The chapeau to para 13.1.1(1) makes this perfectly clear. If the word “frequency” in para 13.1.1(1)(e) has the limited meaning for which the applicant contends, it cannot have been an error for the Tribunal to have regard to, and make findings on, the applicant’s actual pattern of offending. These findings were logically connected to the question of “frequency” and relevant to the Tribunal’s overall consideration of the nature and seriousness of the applicant’s offending.

28    In relation to the second element of the frequency criterion (increasing seriousness), the Tribunal found (at [45]) that, having regard to the sentences that had been imposed on him, it could not be said that the applicant had a “gradually evolving history of offending” in the sense that he commenced with relatively minor offending and graduated to more significant offending. However, the Tribunal also noted (at [46]) that the applicant’s offending was “of a very serious nature from its virtual outset”. This observation was also apposite and relevant to the Tribunal’s consideration of whether there was an element of increasing seriousness of offending and to its overall assessment of the nature and seriousness of the applicant’s offending.

29    The Tribunal’s findings in relation to both elements of the frequency criterion led it to conclude that “a measure of weight” (which it later described as “a moderate level of weight”) should be attributed to the frequency criterion, tempered by a recognition that the offences of violence displayed “relative brevity”.

30    It was for the Tribunal to come to a view about the nature and seriousness of the applicant’s offending. There is nothing in para 13.1.1(1) which constrained it to come to a particular view, or which required it to give any one factor or element any particular weight or, indeed, to undertake any particular synthesis of the factors it was required to take into account, together with other factors that were relevant to its assessment of the nature and seriousness of the applicant’s offending. All of this was within the Tribunal’s decisional freedom. Thus, even if the word “frequency” in para 13.1.1(1)(e) has the limited meaning for which the applicant contends, no error is demonstrated in the Tribunal’s consideration of the frequency criterion or in the findings it made or the conclusion it reached.

31    Thirdly and relatedly, I am not persuaded that the Tribunal’s reference to the seriousness of the applicant’s offending amounted to “double-counting”. In this part of its reasons dealing with the frequency criterion the Tribunal was doing no more than reflecting on the fact that, rather than displaying a trend of more serious offending, the applicant’s offending—at least in terms of his crimes of violence—was serious at the outset.

32    Fourthly, for the reasons I have already given, I do not accept that the Tribunal’s conclusion (that moderate weight should be attributed to the frequency criterion in favour of non-revocation of the cancellation decision) was unreasonable, illogical or irrational. I do not accept that there is no logical connection between the evidence before the Tribunal and this conclusion. For the avoidance of doubt, I do not accept that the applicant has established the other pathways to jurisdictional error on which he relies.

33    Fifthly, even if error, as alleged by the applicant, is demonstrated, I am not satisfied that absent such error, there is a realistic possibility that the Tribunal’s decision would have been different and that the applicant was, therefore, denied the possibility of a different outcome. Indeed, I accept the Minister’s submission that it is improbable that a different decision would have been reached by the Tribunal. Thus, if there be error, as the applicant alleges, I am not satisfied that such error was material to the Tribunal’s overall decision, and thus jurisdictional in character.

34    When considering the nature and seriousness of the applicant’s conduct “to date”, the Tribunal found, correctly, that violent crimes are to be viewed very seriously (para 13.1.1(1)(a) of Direction 79). The Tribunal found:

27.    Having regard to (1) the nature of the offending involving multiple victims of the Applicant’s patently violent conduct, and (2) the impression that at least two sentencing judicial officers have formed about the nature of that conduct, we find that this sub- paragraph (a) of paragraph 13.1.1(1) of the Direction militates in favour of a finding that the Applicant’s conduct must be viewed very seriously.

35    The Tribunal also found, correctly, that crimes of violence against women are to be viewed very seriously, regardless of the sentence imposed (para 13.1.1(1)(b) of Direction 79). The Tribunal found:

35.     We accept that the Applicant’s history of offending is of relatively short compass. Be that as it may, viewed through the lens of this sub-paragraph (b), his offending must be construed as very serious involving, as it does, wanton and deliberately violent offending against two women and an unborn child. We are therefore of the view that an application of this subparagraph (b) of the Direction to the factual matrix of this Applicant’s offending strongly militates in favour of not revoking the mandatory cancellation decision.

36    The Tribunal also found, correctly, that crimes against vulnerable members of the community (such as the applicant’s pregnant wife and his middle-aged mother-in-law) are to be viewed seriously (para 13.1.1(1)(c) of Direction 79). The Tribunal found:

39.    Thus, the Applicant’s offending against vulnerable members of the community – specifically, his mother-in-law and his then-pregnant wife – is a relevant factor for consideration and application of this sub-paragraph (c), in favour of a finding that his offending has been of a very serious nature. Accordingly, this sub-paragraph (c) is supportive of a finding that his visa status should not be restored to him.

37    When considering the sentences imposed on the applicant (para 13.1.1(1)(d) of Direction 79), the Tribunal found:

44.    We are thus of the view that upon an application of this sub-paragraph (d) of paragraph 13.1.1(1) of the Direction, the sentences imposed by the Courts for the crimes of this Applicant are clearly supportive of a finding that his offending is to be assessed as very serious.

38    When considering the cumulative effect of the applicant’s offending (para 13.1.1(1)(f) of Direction 79), the Tribunal found:

50.    Accordingly, the application of this sub-paragraph (f) to the present factual matrix gives rise to a finding that the cumulative effect of the Applicant’s repeated offending – even of such a relatively short compass – is such as to render it very serious. The weight that can be allocated to this specific factor ought to be ameliorated by (1) the relatively short two month scope of the duration of the offending and (2) its isolation to, strictly speaking, three victims, two of which are vulnerable victims. We therefore allocate a moderate level of weight to this sub-paragraph (f).

39    When considering the totality of the evidence relevant to the factors in paras 13.1.1(1)(a) – (f), the Tribunal expressed the view that the applicant’s conduct was readily capable of characterisation as “very serious”. In reaching this view, the Tribunal gave (as I have said) a “moderate level of weight” to the frequency criterion in favour of non-revocation. It is plain, however, that the Tribunal’s findings in respect of all the other factors were in favour of non-revocation. Indeed, the Tribunal’s conclusion in respect of the factor in para 13.1.1(1)(b) was that it strongly militated in favour of not revoking the cancellation decision. There is no indication whatsoever in the Tribunal’s reasons that it would have come to different findings in respect of paras 13.1.1(1)(a) – (d) and (f) of Direction 79 had it confined its consideration of the frequency criterion as the applicant contends it should have confined it.

40    But that is not all. When considering the nature of the harm to individuals or to the Australian community should the applicant engage in further criminal or other serious conduct, as it was required to do under para 13.1.2(1)(a) of Direction 79, the Tribunal found:

59.    The difficulty with assessing the nature of harm that would be caused by any similar violent reoffending by the Applicant is that we do not have any independent assessment of his propensity to reoffend. There is no independent assessment that any factors giving rise to his offending have been identified and are under some kind of remedial management and control. Accordingly, the only reliable finding is that were he to reoffend in a similar way, it would expose members of the Australian community to a significant risk of serious physical and psychological harm. Having regard to the circumstances of his violent offending against his wife, mother-in-law and brother-in-law, the nature of such harm could, quite conceivably, be catastrophic.

41    When considering the likelihood of the applicant engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the applicant re-offending, as it was required to do under para 13.1.2(1)(b) of Direction 79, the Tribunal found:

63.    The Applicant’s self-reported rehabilitation has only been tested in the closed environs of either criminal custody or immigration detention. It is yet to be tested in the broader Australian community where he would be exposed to an unfettered capacity to, for example, present at a local pub or other social scenario where alcohol would be available. We are not convinced from the evidence now before the Tribunal that his capacity to moderate and control his intake of alcohol and/or illicit drugs is such as to render him as being of a lower risk of: (1) succumbing to the mind-altering effects of abusing alcohol and/or illicit drugs; and (2) feeling sufficiently free and empowered to re-commence his offending behaviour.

42    The Tribunal also found:

68.    Having regard to the totality of the material, our finding is that there is a strong and convincing likelihood of this Applicant reoffending. Were he to re-offend, that offending has the clear capacity to cause very serious physical and/or psychological harm, indeed catastrophic and life-long irreparable harm, to a victim of the Australian community. Such a risk, in our view, is not acceptable to the broader Australian community.

43    When expressing its overall conclusion on the protection of the Australian community from criminal or other serious conduct, the Tribunal found:

85.     We have had regard to the provisions of paragraphs 13.1.1 and 13.1.2 of the Direction and find that (1) the nature of the Applicant’s offending conduct to date is very serious and (2) there is strong and convincing likelihood that he will engage in further very serious conduct if returned to the Australian community.

86.    Were he to re-offend, the harm that would be occasioned to others would be both physically and psychologically substantial, very serious and potentially catastrophic. In consideration of all of the evidence, and each of the relevant factors contained in the Direction, we find that Primary Consideration A weighs heavily in favour of non-revocation.

44    The second “primary consideration” to which the Tribunal directed its attention was the best interests of minor children in Australia. The Tribunal referred to this as Primary Consideration B. Having regard to the applicant’s particular circumstances, the Tribunal found this consideration to be irrelevant and gave it no weight when deciding whether the cancellation decision should be revoked.

45    The third “primary consideration” to which the Tribunal directed its attention was the expectations of the Australian community. The Tribunal referred to this as Primary Consideration C. As to this, the Tribunal said:

101.     The can be no doubt that the Applicant has breached the expectations of the Australian community as he has failed to abide by the law. Thus, for the purposes of ascertaining the level of attributable weight to this Primary Consideration C, we make the following findings:

(a)    the Applicant has made little in the way of positive contribution to the Australian community;

(b)    the Applicant has lived in Australia for approximately two and a half years prior to his offending;

(c)    the Applicant’s offending to date is of a very serious nature involving, as it does, serious offending to women;

(d)    the Applicant has demonstrated a his lack of insight into his substance abuse issues;

(e)    there is a strong and convincing likelihood that he will engage in further and, most likely, very serious conduct if returned to the Australian community; and

(f)    that (based on our assessment) there is a quite significant risk of substantial and even catastrophic harm to the Australian community were he to re-offend.

46    The Tribunal concluded:

102.     We are of the view that the above findings militate in favour of not revoking the cancellation of the Applicant’s visa. We accordingly find that Primary Consideration C is of heavy weight in favour of affirming the non-revocation decision under review.

47    The Tribunal then turned its consideration to a number of other considerations, namely: Australia’s non-refoulement obligations (which the Tribunal found to be not relevant); the strength, nature and duration of the applicant’s ties to Australia (which the Tribunal found weighed moderately in favour of the applicant); the impact of the applicant’s removal from Australia on Australian business interests (which the Tribunal found to be not relevant); the impact on victims (which, the Tribunal found should be given minimal weight in favour of the applicant); and the extent of impediments should the applicant be removed from Australia (which the Tribunal found should be given neutral weight).

48    Having regard to all these findings, the Tribunal then considered whether there was another reason to revoke the cancellation decision. The Tribunal said:

130.     In considering whether there is another reason to exercise the discretion afforded by s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, we have had regard to the considerations referred to in the Direction. We find as follows:

•    Primary Considerations A and C both weigh heavily in favour of non- revocation;

•    Primary Consideration B is not relevant to this application;

•    We have outlined the weight attributable to the Other Considerations. We do not consider that any of them, even if combined with each other, outweigh the significant combined weight we have attributed to Primary Considerations A and C.

•    A holistic view of the considerations in the Direction therefore favours the non-revocation of the cancellation of the Applicant’s visa.

49    In light of these findings, the Tribunal concluded that it could not exercise the discretion to revoke the cancellation decision.

50    Having regard to the way in which the Tribunal expressed its findings and conclusions in relation to all these other matters, it is impossible to think that, as a practical matter, the Tribunal would have reached a different overall conclusion had the Tribunal not committed the error which the applicant alleges in relation to its interpretation and application of para 13.1.1(1)(e) of Direction 79. Thus, if there be error, I am not satisfied that the applicant was denied the possibility of a different outcome in respect of the Tribunal’s review.

Disposition

51    As no jurisdictional error in the Tribunal’s decision has been established, the applicant’s originating application, as amended on 21 May 2020, will be dismissed, with costs.

Associate:

Dated:    10 July 2020