Federal Court of Australia

Gage v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1298

ORDERS

THE COURT ORDERS THAT:

1.    The application for review be allowed and the decision of the Administrative Appeals Tribunal dated 24 February 2020 be set aside and the matter be remitted to the Administrative Appeals Tribunal to be heard and determined according to law.

2.    The first respondent to pay the applicant’s costs of the application fixed in the sum of $7,241.

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

REASONS FOR JUDGMENT

ABRAHAM J

1    The applicant, who was born in New Zealand, arrived in Australia on 13 April 1999 as a 10 year old and was granted a Class TY Subclass 444 Special Category (Temporary) visa. On 20 November 2017, the applicant’s visa was cancelled under s 501(3A) of the Migration Act 1958 (Cth) (Migration Act) on the basis that he had a substantial criminal record within the meaning of s 501(7) and was serving a sentence of imprisonment on a full-time basis in a custodial institution as he was serving a sentence of imprisonment of 3 years and 3 months imposed in the District Court of Western Australia for the offence of grievous bodily harm.

2    The applicant made representations requesting revocation of the cancellation, which was refused by the delegate of the Minister on 29 November 2019. On 4 December 2019, the applicant applied to the Administrative Appeals Tribunal (the Tribunal) for review of the delegate’s decision which was refused on 24 February 2020, with the Tribunal affirming the delegate’s decision.

3    On 30 March 2020 the applicant applied to this Court for review of the Tribunal’s decision, and with leave, amended the application such that the sole ground of review relied on is that the Tribunal made a jurisdictional error by failing to execute the statutory task in accordance with Direction 79. In particular, it is alleged the Tribunal breached its duty to give appropriate weight to the second primary consideration, the best interests of minor children in Australia affected by the decision, by careful consideration of the factors enumerated at paragraph 13.2(4). It is submitted that this occurred when the Tribunal diminished the weight to be accorded to that consideration by reference to high-level extraneous considerations at paragraph [248] of its reasons.

4    For the reasons below the application is allowed.

Factual background

5    As noted above, the applicant is a citizen of New Zealand, and is 31 years of age. He is the father of two children, now aged 13 and 10 years old. Although he visited Australia in 1993 and 1996, he began residing in this country on 13 April 1999.

6    The applicant’s criminal history begins in 2007. He has been convicted of a number of offences including disorderly behaviour, obstructing public officers, traffic offences, assaults, breaches of judicial orders and drug offences. His most recent conviction was on 13 October 2017 for the offence of grievous bodily harm, the sentence for which was imprisonment for three years and three months. It was that sentence which formed the basis of the cancellation of his visa.

Tribunal decision

7    The Tribunal decision is detailed, running to 67 pages. Given the limited nature of the ground of review it is not necessary to summarise it in any detail.

8    Suffice to say that the applicant did not contend that he did not pass the character test and so the issue before the Tribunal was whether there was “another reason” to revoke the cancellation of his visa. The Tribunal addressed the considerations in respect to Direction 79 by summarising the evidence, making findings, and attributing weight to the considerations.

9    In respect to the first primary consideration, the protection of the Australian community, the Tribunal concluded that the applicant’s offending and conduct was “serious” and that was a factor that was found to strongly weigh against revocation of the cancellation decision. The Tribunal concluded that further general violent offending by the applicant would result in serious risks of physical, psychological and financial harm to the community. It concluded that if the applicant were permitted to remain in the Australian community there is a “moderate or medium” risk (or a “likelihood”) of the applicant reoffending. Overall in relation to the first primary consideration the Tribunal concluded that the protection of the community weighs against revoking the cancellation decision.

10    In respect to the second primary consideration, the best interests of children, the Tribunal considered the evidence in relation to each of the applicant’s two children separately, and the evidence in relation to his nieces and cousins before making findings in respect to each. This topic is addressed in more detail below, but in relation to the applicant’s two children the Tribunal concluded that the best interests of both children weighed “heavily” in favour of revocation of the cancellation decision. As to the interests of the other children, with whom the applicant had a non-parental bond, the Tribunal concluded that the best interests of those children also favoured the revocation of the cancellation decision but to a lesser extent than the best interests of the applicant’s own children.

11    In relation to the third primary consideration, the expectations of the Australian community, the Tribunal concluded that the Australian community would expect that the applicant would not be entitled to hold a visa in light of his criminal offending and that this consideration weighed against revocation of the cancellation decision.

12    The Tribunal’s conclusions in relation to the other considerations were: Australia’s non-refoulement obligations were not relevant; the strength, nature and duration of the applicant’s ties to Australia weighed strongly in favour of revocation of the cancellation decision; Australian business interests were not relevant; the impact on one victim (the applicant’s ex-wife) who gave evidence weighed in favour of revoking the cancellation decision, as to other victims the consideration was neutral; and the applicant would face some impediments in re- establishing himself in New Zealand and found that this factor weighed in favour of revoking the cancellation decision.

13    The Tribunal concluded that the primary considerations concerning the protection and expectations of the Australian community outweighed the other considerations that weighed in favour of revoking the cancellation decision, including the primary consideration concerning the best interests of the children. The Tribunal therefore concluded that it would not be appropriate to exercise the discretion to revoke the mandatory cancellation of the applicant’s visa.

Submissions

14    The applicant contended that Direction 79 creates a set of considerations which the Tribunal must take into account where relevant. It requires that appropriate weight be given to both “primary” and “other considerations” in the particular circumstances of the case. The applicant submitted that it is impermissible for the Tribunal to make “high-level findings” about the best interests of minor children in Australia without engaging with the factors enumerated in paragraph 13.2(4) of Direction 79. Paragraph 13.2 of the Direction is in the following terms:

13.2 Best interests of minor children in Australia affected by the decision

(1) Decision-makers must make a determination about whether revocation is in the best interests of the child.

(2) This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to revoke or not revoke the mandatory cancellation decision is expected to be made.

(3) 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.

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

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

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

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

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

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

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

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

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

15    It is also appropriate at this stage to refer to paragraphs 7 and 8 of Direction 79 which are as follows:

7. How to exercise the discretion

(1) Informed by the principles in paragraph 6.3 above, a decision-maker:

a) must take into account the considerations in Part A or Part B, where relevant, in order to determine whether a non-citizen will forfeit the privilege of being granted, or of continuing to hold, a visa; or

b) must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a noncitizen's visa will be revoked.

8. Taking the relevant considerations into account

(1) Decision-makers must take into account the primary and other considerations relevant to the individual case. There are differing considerations depending on whether a delegate is considering whether to refuse to grant a visa to a visa applicant, cancel the visa of a visa holder, or revoke the mandatory cancellation of a visa. These different considerations are articulated in Parts A, B and C. Separating the considerations for visa holders and visa applicants recognises that noncitizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa applicant should have no expectation that a visa application will be approved.

(2) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.

(3) Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.

(4) Primary considerations should generally be given greater weight than the other considerations.

(5) One or more primary considerations may outweigh other primary considerations.

16    The applicant submitted that instead of weighing all the relevant considerations, which the Tribunal had already carefully considered and assigned the appropriate weight, in [248] it diminished the weight to be given to the best interests of the applicant’s biological children by reference to high-level and general factors not identified by reference to the factors enumerated in paragraph 13.2(4) of Direction 79. The applicant also submitted they were inconsistent with the detailed findings already made which led the Tribunal to conclude this primary consideration weighed heavily in favour of the revocation.

17    The applicant contended that Direction 79 first requires assessments to be made in respect to each of the specified considerations having regard to the factors identified in the Direction. This involves concluding whether the consideration is in favour of or against revocation and to what degree. That having been done, the Tribunal was required to then weigh those considerations, as assessed, to determine whether the cancellation of the visa should be revoked.

18    In relation to the statutory task to be performed by the Tribunal the applicant referred to Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166; (2016) 153 ALD 338 at [38] (Gaspar):

The preferable conclusion is that s 501CA(4)(b)(ii) requires the Minister to examine the factors for and against revoking the cancellation. If satisfied, following an assessment and an evaluation of those factors, that the cancellation should be revoked, the Minister is obliged to act on that view. There is a single, not a two stage, process and the Minister does not have a residual discretion to refuse to revoke the cancellation if satisfied that it should be revoked.

19    The applicant noted there has been some doubt raised about that approach and referred to Minister for Home Affairs v Buadromo [2018] FCAFC 151; (2018) 267 FCR 320 at [21]:

….there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word “may” in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view: Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166; (2016) 153 ALD 337 at [38] per North ACJ; Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66; (2017) 250 FCR 548 at [31] per Collier J with whom Logan and Murphy JJ agreed; but see Falzon v Minister for Immigration and Border Protection [2018] HCA 2; (2018) 93 ALJR 201 at [74] per Gageler and Gordon JJ. This Court does not need to consider and resolve this issue because it does not arise in a way which bears upon the outcome of the appeal.

And see Minister for Immigration and Border Protection v DRP17 [2018] FCAFC 198; (2018) 267 FCR 492 at [31].

20    That said, the applicant submitted that it was not necessary to decide the issue, although he also contended that Gaspar is correct, and is binding until overruled.

21    On the other hand, the respondent contended that the applicant’s submission proceeds on an erroneous interpretation of the Tribunal’s decision. The respondent submitted that the Tribunal’s decision, read correctly, is structured so that first, the Tribunal at [68]-[237] considered the Direction 79 considerations and expressed its conclusions in respect of each of those considerations by ascribing them with a “weight” which was either favourable or unfavourable to a decision to revoke the cancellation decision; second at [241]-[247], the Tribunal summarised the earlier findings it had made in [68]-[237]; and third at [248]-[249] the Tribunal completed its application of Direction 79 by explaining the relative weight it had decided to place on each of the considerations in Direction 79 in light of the earlier findings it had made. The respondent submitted that [248] of the Tribunal’s decision, properly understood, does not contain any new and “high level” findings. The respondent did not address Gaspar.

Consideration

22    Although the complaint on this review is directed to paragraph [248], it is appropriate to put that in context by referring also to [249]. Those paragraphs are in the following terms:

248.    The Tribunal has considered carefully the best interests of the Applicant’s children. The Tribunal accepts that the best interests of the children are that the cancellation be revoked. However, the Tribunal finds that this will only be the case if the Applicant ceases substance abuse and does not reoffend in a manner similar to his past history. By his own admission, the Applicant’s past actions have separated him from his children for significant periods and placed impediments on him providing day-to-day support for them. While the Tribunal weighs heavily the best interests of the children, it is the Applicant’s offending and in particular his repeated offending which has placed his children in this difficult position. Thankfully the children have the care and protection of their mother who is and has been their primary caregiver for some time, the love and support of a large family and community in Australia and the ability to return to New Zealand on an occasional or permanent basis should they chose to do so. Having weighed these considerations against the others mentioned above, the Tribunal places less weight on this primary consideration.

249.    While the children’s interests are best served by the Applicant remaining in Australia, the Australian community is not best served by the Applicant remaining here. He has shown an unwillingness or inability to regulate his violent behaviour which escalated to the point where a victim was caused serious, life-threatening, injuries. Although remorseful, he has not sufficiently addressed the causes of his offending and did not have a clear plan for doing so. He has consistently failed to comply with the laws of Australia which are put in place for the protection and good order of the Australian community and has displayed in his offending a disregard for the importance and authority of those laws and the institutions which enforce them. This has made him an unacceptable risk to the community going forward. Having regard to all the circumstances of the Applicant’s case, the Tribunal is of the opinion that the primary obligations of the protection of the Australian community and the expectations of the Australian community outweigh the other considerations that weigh in favour of revoking the cancellation decision.

23    Before addressing paragraph [248] it is appropriate to make three observations.

24    First, as to the application of Gaspar, the correctness and application of the decision has the weight of authority in this Court. Although the respondent did not address the decision, the respondent’s submissions as to the operation of Direction 79 did not suggest an approach contrary to that described in Gaspar.

25    Second, Direction 79 prescribes the matters that a decision maker must consider and the approach a decision maker must take to some matters, as a matter of executive policy: Nguyen v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 985 at [27] (Nguyen). A failure to comply with a ministerial direction made under s 499 of the Migration Act, of which Direction 79 is one, has been held to amount to jurisdictional error: Williams v Minister for Immigration and Border Protection [2014] FCA 674; (2014) 226 FCR 112 at [34]-[35]; VKTT v Minister for Home Affairs [2019] FCA 1018 at [19]; Nguyen at [25]-[27]. That said, without the breach being material there will be no jurisdictional error: Minister for Immigration and Border Protection v SZMTA; CQZ15 v Minister for Immigration and Border Protection; BEG15 v Minister for Immigration and Border Protection [2019] HCA 3; (2019) 264 CLR 421 at [44]-[45] (SZMTA). A breach is material to a decision only if compliance could realistically have resulted in a different decision: SZMTA at [45], which ordinarily is a question of fact: SZMTA at [46]. I will return to this issue below.

26    Third, in relation to a revocation decision Direction 79 prescribes considerations which must be taken into account, so far as they are relevant. One of the considerations, the best interests of the child, is recited above. As can be seen from that paragraph a determination must be made as to whether cancellation is, or is not, in the best interests of the child, if relevant, and in reaching that determination the Direction identifies the factors which must be considered. It is plain from the nature of the consideration and the terms of paragraph 13.2, that it is directed to what is in the best interests of the child, and therefore it is to be considered from that perspective. It is directed to the degree to which the decision will affect the interests of the child: MNLR v Minister for Home Affairs [2020] FCA 948 at [93] (MNLR). The Direction ascribes the considerations as to whether they are primary considerations or other considerations.

27    As is apparent from [15] above referring to paragraph 8, the Direction also describes the relative weight to be given to those primary and other considerations. The Direction makes clear that there is an evaluation required as to the weight to be given to each of the considerations, and it requires that both primary and other considerations be given “appropriate weight”. The primary considerations, in the absence of some factor that takes the case out of that which pertains 'generally', are to be given greater weight. The Direction does not require that the other considerations be treated as secondary in all cases, and nor does it provide that primary considerations are 'normally' given greater weight: Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 at [23] (Suleiman). It is about giving appropriate weight to the Direction 79 considerations in the circumstances of the particular case, the decision maker having formed a view of the various considerations in accordance with Direction 79. The Tribunal was required to make a decision guided by Direction 79, which formed a constraint upon the statutory authority of the Tribunal as an administrative decision maker: Suleiman at [31]; Minister for Home Affairs v Stowers [2020] FCA 407 at [66] (Stowers).

28    In the circumstances of this case the Tribunal was to weigh the various considerations in light of the findings it had made in relation to each of the relevant considerations to determine if it had been established that there was another reason to revoke the cancellation. The considerations were to be weighed to determine which carry the greatest weight, in the circumstances of the case.

29    The issue in this case is whether the Tribunal complied with Direction 79, and if not, what, if any, consequence flows. Determining whether the Tribunal has complied with a Ministerial Direction is a question of fact, which necessarily involves undertaking an analysis of the reasons: Minister for Immigration and Citizenship v Khadgi [2010] FCAFC 145; (2010) 190 FCR 248 at [71]; Stowers at [21].

30    For that it is necessary to consider [248] in the context in which it appears. As the respondent correctly submitted, the Tribunal’s decision is to be read as a whole: AON15 v Minister for Immigration and Border Protection [2019] FCAFC 48; (2019) 269 FCR 184 at [56]. That reveals, inter alia, that the reasons are structured, such that the Tribunal at [68]-[237] first addressed each of the Direction 79 considerations in turn, referred to the relevant evidence and submissions, and then made findings in respect to each as to whether they are favourable or unfavourable to a decision to revoke the cancellation decision and in doing so ascribed a weight to each of the considerations.

31    Relevantly, in respect to primary consideration B, the best interests of the minor children, the Tribunal gave detailed reasons at [142]-[158] which specifically addressed each of the subparagraphs in 13.2(4) of Direction 79, and did so in respect to each of the applicant’s two children (he has with his ex-wife). The Tribunal stated (with the names removed):

The Applicant’s son and daughter

142.    The Applicant’s ex-wife, Ms [omitted], is also from New Zealand. She is now an Australian citizen as are the two children. There was evidence that the Applicant’s children and their mother had voluntarily returned to live in New Zealand for a number of years prior to and during the Applicant’s incarceration. Ms [omitted] noted in her statement that she would not move back to New Zealand again as they did not have sufficient family support there. The Tribunal accepts that if the Applicant is removed to New Zealand the children would remain in Australia with Ms [omitted]. However the Tribunal notes that the Applicant’s ex-wife and her children have returned regularly to New Zealand while living in Australia. While they would be able to travel to New Zealand as they have done in the past, enabling them to visit the Applicant, the Tribunal accepts that they are unlikely to relocate to New Zealand permanently.

143.    The Applicant is in a parental relationship with the children. At the time both children were born the parents were living together. The Applicant has been in prison or detention for more than two years. Prior to him going into prison, the children were living in New Zealand with his ex-wife. Notwithstanding what appear to have been significant periods of separation from the children, including that he was not in contact with them prior to his Grievous bodily harm offence, Ms [omitted] stated that the Applicant was a “hands on father” who was very close to his children. She stated that he remained in daily contact with them but was greatly missed. The Tribunal accepts that the Applicant has maintained regular contact with his children following reconnecting with them while in prison and detention and there was evidence from friends and family supporting his claim to have a close relationship with the children.

144.    The children’s mother is currently fulfilling the parental role in relation to the children and has done so since before the Applicant was in prison. There is no information before the Tribunal as to any court orders in place with respect to the care and custody of the children. However, the Tribunal accepts that the parties were sharing parenting responsibilities prior to his ex-wife and children relocating to New Zealand.

145.    There is no evidence that any prior conduct of the Applicant has had a negative impact on his children.

146.    Having regard to the ages of the children, if the Applicant is in the community and refrains from reoffending there would be an opportunity for him to play a positive role in the children’s lives for a significant number of years.

147.    The Applicant speaks to the children on the phone daily and they visit him in the detention centre facilitated by their mother or other family members. If the Applicant is removed from Australia, the children will be deprived of having a close in-person relationship with him in the future. It would, however, be possible for the children to communicate with the Applicant in ways other than in person, for example by telephone or over the Internet via Skype or Facetime. This is consistent with the manner in which they maintained contact while he has been in detention or prison. However, the Tribunal accepts this would not provide the children with the same relationship with their father as would be possible if they saw him in person on a regular basis.

148.    The Applicant’s children have previously resided in New Zealand and have travelled there frequently. The Tribunal finds that if the Applicant were to return to New Zealand he would be likely to be able to maintain some in-person contact with his children who would be likely to visit him there on occasion. The Tribunal accepts this is not a substitute for the regular contact he may be able to have with the children were he to remain in Australia. There would be nothing preventing the Applicant’s ex-wife and children from relocating to New Zealand on a more permanent basis should they choose to do so. However, as noted above, the Tribunal acknowledges it is unlikely they would do so, for a range of reasons including their family connections in Australia, and has assessed the children’s interest on the basis that they would remain resident in Australia with their mother.

149.    There is no evidence the Applicant has abused or neglected the children in any way in the past, nor is there any evidence the children have suffered or experienced any physical or emotional trauma arising from the Applicant’s conduct.

150.    The Tribunal has also considered the children individually to the extent there is information that their interests may differ.

The Applicant’s daughter

151.    There was strong material before the Tribunal to suggest that the Applicant is committed to a positive relationship with his daughter, including a handwritten statement from her. The Applicant’s daughter stated she did not feel she would cope with him being in New Zealand. She states “it would honestly hurt me so bad I would never talk to anyone anymore if that happened to him”. She states that her father has always been there for her and she needs both parents in her life.

152.    Her mother also spoke of the important role her father is playing in the daughter’s life as her behaviour had become more difficult in recent years and of the backup the Applicant had provided in those instances even from detention and prison. Other family members also spoke to the close relationship the Applicant has with his daughter.

153.    The Tribunal accepts the Applicant is committed to his relationship with his daughter and has a strong relationship with her. Ms [omitted] (the Applicant’s ex-wife) supports him in this. [Edited for publication]. The Tribunal formed the view that maintaining a strong relationship with his children was the main driver for the Applicant’s commitment to reform his behaviour. If he were to maintain that commitment and not reoffend he could play a positive role in his daughter’s life, and in particular as she navigates her teenage years.

154.    On the basis of the material before it, the Tribunal concludes that revocation is in the best interests of the Applicant’s daughter. Having regard in particular to the child’s age, personal history and the Applicant’s commitment to a strong relationship with her, the Tribunal considers her best interests weigh heavily in favour of revocation of the decision to cancel the Applicant’s visa.

The Applicant’s son

155.    There was also strong material before the Tribunal to suggest that the Applicant is committed to a positive relationship with his son.

156.    There are no known views of the child before the Tribunal. However, relatives spoke of the impact separation from his father is having on him. The Tribunal accepts this to be the case.

157.    The Applicant is committed to his relationship with his son. Ms [omitted] supports him in this. As noted above, the Tribunal formed the view that maintaining a strong relationship with his children was the main driver for the Applicant’s commitment to reform his behaviour. If he were to maintain that commitment and not reoffend he could play a positive role in his son’s life, and in particular through his participation in youth touch rugby.

158.    On the basis of the material before it, the Tribunal concludes that revocation is in the best interests of the Applicant’s son. Having regard in particular to the child’s age and the Applicant’s commitment to a strong relationship with him, the Tribunal considers his best interests weigh heavily in favour of revocation of the decision to cancel the Applicant’s visa.

32    The Tribunal, in the same detailed manner, considered the interests of the other children in which the applicant is in a non-parental relationship at [159]-[179] concluding that the considerations weighed in favour of revocation but to a lesser extent than the interests of his own children.

33    Having made findings in relation to each Direction 79 consideration the Tribunal’s reasons under the heading “Conclusion” summarised at [242]-[247] those findings in respect to each consideration. As to the best interests of the children the Tribunal stated at [243] that (with the names removed):

The Tribunal finds that the best interests of the Applicant’s children weigh heavily in favour of revoking the cancellation decision. The best interests of the children of Ms [omitted] and Ms [omitted] weigh moderately in favour of revoking the cancellation decision.

34    That summary accurately reflected the conclusion reached earlier.

35    There was no issue between the parties that the structure of the reasons up until [247] were as described above.

36    That leaves paragraphs [248]-[249]. There is a dispute between the parties as to the meaning of [248] and what it was intended to reflect.

37    There is no dispute as to [249], it describes the relative assessment of the considerations which led to the conclusion that the primary considerations of protection of the community and expectation of the community outweighed the other considerations. Absent [248], it involves, on its face, a conventional reasoning process. The complaint is directed at [248] which is said to reflect error and that the reasoning contained therein led into and informed [249].

38    As will have been seen from [248] the Tribunal commenced by stating that it accepted that it is in the best interests of the children that the visa cancellation be revoked. However, the Tribunal immediately thereafter made three findings in that regard: first, that that will only be the case if the applicant ceases to abuse substances and does not reoffend; second, the applicant’s past actions have caused the separation with his children for significant periods, which has impeded his providing day-to-day support for them, and that it is his repeated offending “which has placed his children in this difficult position” and third, that the children have had the care and protection of their mother, the support of a community in Australia and have the ability to return to New Zealand on an occasional or permanent basis if they chose to do so. The paragraph then concluded with the finding that “[h]aving weighed these considerations against the others mentioned above, the Tribunal places less weight on this primary consideration”. I note that the applicant referred to four findings in [248], but in practical terms the import of the second finding was referred to twice, albeit in slightly different terms.

39    There was no real dispute that the paragraph involved those findings, rather the dispute was with the meaning of the paragraph.

40    In that context I am mindful that the reasons of an administrative decision maker are not to be “construed minutely and finely with an eye keenly attuned to the perception of error”: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ.

41    The applicant’s submission was that some of those topics covered by the findings in [248] had already been considered, and taken into account by the Tribunal in reaching its conclusion that this consideration weighed heavily in favour of revocation. That assessment having been made it was then for the Tribunal to weigh that assessment with the assessments made in relation to the other Direction 79 considerations. It was submitted that was not done, but rather the weight of this consideration was reduced by comparison to other considerations by reason of those additional factual findings (which were high level, general and in some respects inconsistent with the earlier detailed findings). That latter submission as to the interpretation of [248] was relied on as illustrative of the proposition that Direction 79 had not been complied with.

42    The respondent characterised [248] as reflecting where the Tribunal completed its application of Direction 79 by explaining the relative weight it had decided to place on each of the considerations in Direction 79 in light of the earlier findings it had made. The respondent submitted that the Tribunal undertook that process in light of the guidance in paragraphs 8(3)-8(5) of Direction 79, referred to above. It submitted that the Tribunal in [248] was explaining the weighing exercise and how it reached its conclusion in [249], that the primary considerations of the protection and expectations of the Australian community outweighed other considerations, including the other primary consideration.

43    The applicant’s submission should be accepted.

44    First, as referred to above, the Tribunal had already made a determination in accordance with paragraph 13.2 in relation to whether revocation was in the best interests of the child.

45    Second, it may be accepted that the findings made in [248] are ostensibly directed to the second primary consideration. The tenor of the paragraph reflects that, as do the findings, which are directed to the applicant’s relationship with his children. Leaving aside the content of the findings, some, although not all, of the topics referred to could arguably be matters encompassed by 13.2(4) of Direction 79, the factors to be taken into account in assessing primary consideration B, the best interests of the child. Indeed, as explained further below, those topics had already been considered in reaching the conclusion that this primary consideration weighed heavily in favour of revocation. That said, there was no suggestion by the respondent that the findings in [248] were a continuation of the assessment of primary consideration B. The structure of the reasons, and that the Tribunal reiterates in the beginning of [248] its conclusion above, that it weighs heavily the best interests of the children, tends against that being the approach. The Tribunal had already made its assessment of primary consideration B.

46    Contrary to the respondent’s contention, those statements or findings were not addressing any of the other considerations listed in Direction 79, such as protection of the community. I note also in that context, that in so far as the respondent submitted that the reference to reoffending related to primary consideration A and harm to the children, the Tribunal made findings in primary consideration B at [145] and [149] recited above in [31], that there is no evidence that any prior conduct of the applicant has had a negative impact on the children.

47    Third, although the meaning of [248] is not without difficulty, it may be accepted as contended for by the applicant, that the reference to “these considerations” in the last sentence of [248], “[h]aving weighed these considerations against the others mentioned above, the Tribunal places less weight on this primary consideration”, is most likely a reference to what was described by the applicant as the factual findings in that paragraph. That statement immediately follows those findings, and it can be assumed that those findings were made for a purpose. The only other alternative suggested, that “these considerations” refers to all the considerations, cannot sensibly be the correct meaning given the remainder of the sentence.

48    It follows that the Tribunal placed less weight on primary consideration B having weighed the findings in [248] against “the others mentioned above”, which it is presumed must be the other Direction 79 considerations. I say presumed because no other interpretation could sensibly be given to the phrase, in its context. The parties did not address its meaning, although the applicant acknowledged that the sentence was ambiguous. If that phrase does refer to other Direction 79 considerations, as it appears to, the plain reading of the sentence is that the Tribunal weighed the findings in [248] against those other considerations. That is, the Tribunal did not weigh primary consideration B against those other considerations, but rather it weighed the factual findings, against the other considerations. If so, that approach does not accord with Direction 79. As described above, the correct approach required the Tribunal to weigh the various considerations in accordance with Direction 79 to determine which consideration(s) carried the greatest weight.

49    Fourth, the applicant’s submission (recited above at [41]) as to the reasoning process in [248] is correct. That reasoning process reflects the Tribunal’s error in approach to Direction 79.

50    As noted above, the applicant is correct that the Tribunal had referred to and considered some of those topics in [248] in its earlier detailed assessment of primary consideration B, and therefore that they were considered in reaching its conclusion on primary consideration B. For example, the topic of reoffending is referred to in paragraphs [146], [153]-[154], and [157] recited above. Paragraph [146] concluded that the applicant has an opportunity to have a positive role in his children’s lives if he refrains from reoffending, which is followed by a consideration as to the current relationship between the applicant and his children. In that context paragraphs [154] and [157] contain the Tribunal’s conclusion in respect to each child. Paragraph [154] reflects the Tribunal’s conclusion that “having regard in particular to the child’s age, personal history and the applicant’s commitment to a strong relationship with her, the Tribunal considers her best interests weigh heavily in favour of revocation”. Paragraph [157] is to the same effect in relation to the applicant’s son. In respect to the children going to New Zealand, this was specifically addressed in [148] recited above, which includes the finding that if the applicant were to “return to New Zealand he would be likely to be able to maintain some in-person contact with his children who would be likely to visit him there on occasion” but accepted “this is not a substitute for regular contact”. It also concluded that it was unlikely the applicant’s ex-wife and children would relocate there and that it “has assessed the children’s interest on the basis that they would remain resident in Australia with their mother”.

51    In that context there is force in the applicant’s submission that there is a generality about the findings, in particular the first two findings referred to above at [38]. They do not engage with, but rather are removed or disconnected from the detailed findings made in the earlier assessment. As to the first, the Tribunal had already reached a conclusion on this topic as it related to primary consideration B, which was prefaced on the basis of the applicant not reoffending. As to the second, it is plain in the Tribunal’s earlier consideration that the applicant’s conduct had impeded his providing day-to-day support for the children. Those findings in [248] are made without the surrounding factual assessment and conclusion that took place in the Tribunal’s consideration of primary consideration B. They are, as contended by the applicant, high level and general. This is also illustrated by the fact that those findings would apply in most, if not all, visa cancellation cases which are as a result of the applicant failing the character test because of criminal offending, where children are involved and their interests are being considered.

52    As the applicant submitted, arguably some of the findings in [248] are inconsistent with earlier findings (in light of the reasoning and the conclusion in primary consideration B). However, as the respondent contended, there being no ground alleging illogicality it is therefore unnecessary to consider this issue from that perspective. That said, this aspect appears to have been relied on by the applicant more to reflect the generality of the findings. It reflects the generality of these findings and the disconnection with the conclusion as to the consideration and assessment that had been conducted.

53    Moreover, in light of the finding made as to the assessment of this primary consideration, the finding in [248], in particular the second finding, does not approach the issue from what is in the best interests of the children, but rather focuses on the applicant. As the Tribunal found at [248], it is his repeated offending “which has placed his children in this difficult position”. It attributed to the applicant the responsibility for the position the children are in, and purported to use that to reduce the weight to be attached to that consideration respective to other considerations. That is, having regard to the assessment of the factors identified in Direction 79 and accepting that the best interests of the children weigh heavily in favour of revocation, nonetheless, because of the applicant’s conduct, the Tribunal determined in [248] that less weight was to be attributed to that consideration. The Tribunal is required to take into account, as a primary consideration, the best interests of the children. That the applicant put the children in this position cannot reduce the conclusion that revocation is in the best interests of the children. Nor, given that the focus of this primary consideration is on the interests of the child, can that basis properly result in the interests of the child carrying less weight in the relative weighing of the Direction 79 considerations. This part of the Tribunal’s finding at [248] could not properly be a consideration under primary consideration B. As referred to above, this primary consideration is to be considered from the perspective of the child; it focuses on the degree to which the decision to revoke the cancellation will affect the interests of the child: MNLR at [93]. The factors enumerated in 13.2(4) plainly reflect this. Those factors concern matters such as the quality of the relationship between the applicant and the child, the likely effect of separation from the applicant and any known views of the child: MNLR at [93]. This is different from a consideration of whether the applicant is to blame for the children “being put in this difficult position”, or whether he deserves to be with his children.

54    Fifth, in that context it is apparent that properly construed [248] does not reflect the Tribunal undertaking the task set out in paragraphs 8(3)-8(5) of Direction 79. The Tribunal was required to weigh the various considerations in light of the findings it had made to determine if it had been established that there was another reason to revoke the cancellation. As explained above at [47]-[48], the process described in [248] does not reflect what was required by Direction 79.

55    Primary consideration B was not given less weight in [248] than the other considerations as a result of being weighed against those other considerations but rather, it was given less weight against those other considerations because of the factual findings made in [248], which, as explained above, do not relate to the other Direction 79 considerations (or properly to the best interests of the child, as described above at [51] and [53]). The Tribunal in [248] did not give less weight to primary consideration B as a result of weighing the considerations, resulting in greater weight being placed on other considerations because of the content of those considerations. To put it another way, properly understood, the Tribunal did not weigh the considerations, to determine which carried greatest weight in the circumstances of this case in deciding whether there was another reason to revoke the cancellation.

56    The respondent’s submission that the use of the word “less” in describing the result of the weighing process was just looseness of language, cannot be accepted. The submission does not address the underlying issues that arise from [248].

57    The difference of approach to what is required by Direction 79 cannot in the context of the Tribunal’s reasons, be explained as simply the use of infelicitous language.

58    Although as the respondent correctly submitted, it was a matter for the Tribunal to determine the relative weight to be given to each of the considerations it found to be relevant in undertaking that exercise: Dunn v Minister for Immigration and Border Protection [2018] FCAFC 233; (2018) 267 FCR 246 at [62] and the fact that “minds might differ as to the merits” of the Tribunal’s decision does not mean that the Tribunal committed jurisdictional error: AZAFQ v Minister for Immigration and Border Protection [2016] FCAFC 105; (2016) 243 FCR 451 at [58], that does not address the issue at hand. That is, whether the Tribunal complied with Direction 79. Or to put it more directly, whether the reasoning in [248], read in the context of the Tribunal’s reasons, complied with that Direction.

59    A reading of [248], in its proper context, reflects that the process of weighing the considerations as required by Direction 79 did not occur. Paragraph [248] did not involve a weighing of the considerations in Direction 79 as assessed, in accordance with the factors identified in the Direction. Any reference to the assessment of the considerations in [249] occurred in that context, and therefore was infected by the assessment in [248].

Materiality

60    However, as noted above, an error is only a jurisdictional error if it is material. The applicant contended, relying on DQM18 v Minister for Home Affairs [2020] FCAFC 110 at [113]-[114] (DQM18) that when there is an error which involves a question of weight, which in turn involves matters of real and not fanciful relevance to the task being performed, the Court is unlikely to be able to conclude that the outcome could not have been different, and therefore such an error would be material and a jurisdictional error.

61    The respondent contended that if there was an error it was not material because, having regard to the reasons as a whole, the conclusion in [249] that the primary consideration of the protection of the Australian community and the expectation of the Australian community outweighed the other considerations that weigh in favour of revocation has force. The respondent raised the recent decision in this Court of PQSM v Minister for Home Affairs [2020] FCAFC 125 (PQSM) submitting there is tension between this and DQM18.

62    In reply, the applicant accepted there was tension between the two decisions and submitted it did not make any difference in this case but, that if necessary, he also submitted the majority of PQSM was incorrect. The applicant also relied on DNQ18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 72 at [60].

63    There is some tension in recent authorities as to the correct approach to materiality which is unnecessary to resolve in this case. I note that in XFCS v Minister for Home Affairs [2020] FCAFC 140 at [44], a visa cancellation case, this Court applied PQSM. I am bound by the most recent authority of this Court. That said, on either approach however, it is apparent that the error was material in the context of this decision.

64    In PQSM the Court was considering a visa revocation where the Tribunal failed to consider one of the Direction 79 considerations, the applicant’s ties to the community. The majority at [150]-[151] observed:

Where a decision-maker has failed to address a mandatory consideration, the task of determining whether taking it into account could realistically have made a difference will sometimes be difficult. It will often be more difficult than performing a similar evaluation in relation to specific documents or information that have been omitted. Where it is an entire consideration that has been left out of account, there may be a wide range of factual material that has been omitted. The approach articulated in SZMTA means it will often be necessary for the court to evaluate all that material. In conducting that evaluation, the line between judicial review and merits review may be difficult to discern. Similarly, it will sometimes be difficult to evaluate the Tribunal's reasoning without substituting the court's own reasoning. The nature of the Tribunal's task when reviewing decisions under s 501CA(4), which requires a discretionary weighing of all relevant factors, compounds the difficulty confronting the court on judicial review.

Nevertheless, in SZMTA the majority made it clear (at [46]) that where materiality is in issue, it is an ordinary question of fact. It follows that despite all these difficulties, it is a question the court must resolve on the basis of the evidence and inferences available, including the reasons of the Tribunal or other decision-maker under review. It must resolve the question on the basis that the onus of proof is on the applicant: SZMTA at [46].

65    The Tribunal’s findings recited above as to its conclusions for each consideration, including the weight ascribed in each assessment, involved findings that weighed both for and against revocation. This included inter alia, in respect to primary consideration B and the strength of the applicant’s ties to Australia, conclusions weighing “heavily” and “strongly”, in favour of revocation. This is in the context where the overall finding in relation to the first primary consideration was that the Tribunal concluded that the protection of the community “weigh[ed] against revoking the cancellation decision”. It is also in the context where there were some positive, albeit qualified, findings made in respect to the applicant’s conduct and commitment to not reoffend.

66    Although in [249] the Tribunal found that the protection of the community and the expectations of the Australian community outweighed the other considerations that weighed in favour of revoking the cancellation decision, including primary consideration B, that was in a context where primary consideration B was given diminished weight for the reasons given in [248]. The Tribunal’s approach led it to impermissibly diminish the weight of a primary consideration relative to other Direction 79 considerations, which otherwise was heavily in favor of revocation, prior to it being weighed against competing considerations. This diminished consideration was then weighed against the other Direction 79 considerations in [249]. As such, the Tribunal’s conclusion and weighing process carried out in [249] is infected with the error in [248].

67    Of course, as the respondent correctly observed, Direction 79 states at 6.3(4), “in some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa”. However, although that approach may have been open, it was not the reasoning employed by the Tribunal in this matter.

68    In any event, given the Tribunal’s assessments in relation to each of the considerations and the factual findings underlying them, it cannot be said in the circumstances of this case that the breach was not material in the sense described in SZMTA; compliance with the Direction could realistically have resulted in a different decision: SZMTA at [45], and see also [48], [49], [50], [70], [71], [72]. The conclusions as to the considerations are conflicting, with strong findings for revocation on primary and secondary considerations, both to the conclusion and the reasoning underlying them. It follows that the error was material.

Conclusion

69    It follows that the applicant has made out this ground of review. The application must be allowed. The first respondent consented to pay the applicant’s costs, fixed in the amount of $7,241, in the event the applicant is successful.

Associate:

Dated:    9 September 2020