Federal Court of Australia

Markaj v Minister for Immigration and Border Protection [2020] FCA 1511

ORDERS

THE COURT ORDERS THAT:

1.    A writ of certiorari be issued quashing the decision of the second respondent made on 20 September 2017 in file number 2017/3869.

2.    A writ of mandamus be issued directed to the second respondent requiring it to determine the application for review of the decision made by a delegate of the first respondent on 19 June 2017 according to law.

3.    The first respondent pay the applicant’s costs of and incidental to this proceeding.

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

REASONS FOR JUDGMENT

KENNY J:

1    The applicant has sought judicial review of a decision of the Administrative Appeals Tribunal, which affirmed a decision of a delegate of the respondent Minister under s 501(1) of the Migration Act 1958 (Cth) to refuse to grant the applicant a Partner (Temporary) (Class UK) visa.

2    The applicant is an Albanian citizen, who lived and worked in Italy before coming to Australia. He arrived in Australia on 30 October 2011 and has not departed Australia since then. The applicant travelled to Australia as the holder of a Visitor (Subclass 976) visa, which was cancelled after he admitted to travelling on a fraudulently altered Italian passport. The applicant subsequently made applications for a Protection (Class XA) Visa on 2 December 2011 and again, on 25 March 2013. Both applications were unsuccessful. Save for the period from March 2013 to November 2014, the applicant has been in immigration detention.

3    In late 2011, the applicant and Ms Rosa Zea met on an internet dating and social chat site. The couple married on 26 February 2012. On 17 November 2014, the applicant, sponsored by his wife, applied for the visa the subject of this judicial review application. On 15 December 2014, a delegate of the Minister refused to grant the visa. The applicant sought review of the delegate’s decision by the former Migration Review Tribunal, which decided, on 8 May 2015, to remit the application to the delegate with directions for it to be reconsidered.

4    By a notice dated 13 May 2016, a delegate of the Minister informed the applicant of her intention to exercise the discretion under s 501(1) to refuse his visa application, on the basis the Minister’s Department held information about his criminal history indicating that he had a “substantial criminal record” for the purposes of s 501(7) and, as a result, did not pass the character test under s 501(6)(a) of the Migration Act. The applicant was invited to respond. The applicant made extensive representations seeking a favourable exercise of the delegate’s discretion under s 501(1), including by representations on 7 November 2016, 21 November 2016, and 19 December 2016.

5    On 19 June 2017, the delegate decided to refuse the applicant’s visa. The applicant sought merits review of the refusal. On 20 September 2017, the Administrative Appeals Tribunal affirmed the decision under review. The applicant applied to this Court for judicial review of the Tribunal’s decision.

Judicial Review Grounds

6    The applicant seeks judicial review on the ground that the Tribunal “either failed to consider a relevant consideration, constructively failed to perform the statutory task set by s 501(1) of the Migration Act … or engaged in illogical reasoning” and, in particular, that:

(a)    At paragraphs [50]-[53], the Tribunal erred in its construction of “parental role” by confining that role to activities undertaken with a child, time spent with a child outside immigration detention and financial support.

(b)     The Tribunal erred in its consideration or application of the mandatory consideration “whether there are other persons who already fulfil a parental role in relation to the child” set by clause 11.2(e) of part B of Direction No. 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA insofar as the claims, evidence and argument before the Tribunal revealed of diminished parenting capacity in the case of his wife, and the risk of diminished parenting capacity in the case of his stepson. In this connection, the Tribunal was obliged to consider, but did not, the individual impacts on the minor children who particularly relied on the wife and stepson as fulfilling parental roles in their lives.

(c)     The Tribunal’s reasoning at paragraph 55 was illogical insofar as there lacks a logical connection between the applicant’s evidence about his contribution to domestic labour at home at CB 274[24] and his capacity to spend time with his minor … grandchildren.

(d)     The Tribunal[] erred at paragraph 56 by wrongfully imposing the requisite standard of satisfaction too high and by considering the extent to which the applicant’s removal from Australia would result in “significant harm” to his minor grandchildren, rather than considering whether it would be contrary to the “best interests” of his minor grandchildren.

(Italics in original)

7    It should be borne in mind in considering the applicant’s challenge to the Tribunal’s decision that, like the delegate, the Tribunal was bound by the provisions of “Direction No 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA”: see s 499, Migration Act.

8    For the reasons stated below, I would set aside the Tribunal’s decision, by granting the relief the applicant has sought.

Tribunal’s Decision and Direction No 65

9    The Tribunal commenced its reasons by setting out the applicant’s immigration history, referring to the two adverse decisions of the Refugee Review Tribunal in relation to his applications for a Protection (Class XA) Visa, and the circumstances in which the applicant had secured his entry into Australia (i.e., “under a false name, using a falsified Italian passport”).

10    The Tribunal found that an Italian court had convicted the applicant of “a number of serious criminal offences” while the applicant was living and working in Italy. It listed these crimes as follows:

(a)     supplying or selling illegal narcotics substances on an ongoing basis – committed from 12 January 2007 to 1 March 2007;

(b)     supplying or selling illegal narcotics substances on an ongoing basis – committed from 14 December 2006 to 1 March 2007;

(c)     illegal transfer of narcotics substances on an ongoing basis – committed from 1 January 2007 to 28 February 2007;

(d)     illegal transfer of narcotics substances on an ongoing basis – committed from 3 January 2007 to 10 February 2007;

(e)     buying, possessing and selling illegal narcotics substances on an ongoing basis – committed from 1 January 2006 to 17 May 2007;

(f)     attempted extortion acting jointly – committed from 26 January 2007 to 12 March 2007; and

 (g)     extortion – committed on 14 February 2007.

11    The Tribunal also found that the applicant was sentenced to a term of imprisonment of three years and four months for the above crimes.

12    There was little, if any, dispute that the applicant did not pass the character test for the purposes of s 501(1) of the Migration Act, since the applicant had been sentenced to a term of imprisonment exceeding 12 months while residing in Italy: see ss 501(6)(a) and (7)(c). It is immaterial that the applicant was convicted and sentenced to imprisonment by an Italian court in respect of offences in Italy. As Nicholas J (with whom Moore and Rares JJ agreed) said in Brown v Minister for Immigration and Citizenship [2010] FCAFC 33; 183 FCR 113 at [93]:

Unlike other provisions of the Act, s 501(7) is not restricted to sentences imposed upon conviction of an offence in Australia. A sentence to imprisonment imposed abroad is clearly within the scope of the provision.

13    In determining whether the preferable decision under s 501(1) was to refuse the visa the applicant sought, the Tribunal’s reasons showed that the Tribunal focussed on Ministerial Direction No 65 (as made on 22 December 2014).

Direction No 65

14    The Tribunal explained that paragraph 8(1) of Direction No 65 provided that “[d]ecision-makers must take into account the primary and other considerations relevant to the individual case”, and that paragraph 11 set out the “primary considerations” to be taken into account in deciding whether to refuse a non-citizen’s visa. It noted that these primary considerations were: (a) protection of the Australian community from criminal or other serious conduct; (b) the best interests of minor children in Australia; and (c) expectations of the Australian community. The Tribunal addressed each of these considerations in turn.

The nature and seriousness of the non-citizen’s conduct to date

15    Under this heading, the Tribunal found that the applicant’s offending in Italy was “very serious”. It also found that his conduct “in attempting to enter Australia on a false passport and, when that was discovered, nevertheless relying on false and misleading information in an attempt to remain in Australia” was serious misconduct. The Tribunal gave little weight to the applicant’s statements regarding “the real reason he was in Australia, that is, to seek refuge from harm he believed he faced in Albania”, noting that he had only given this account “on the day following the discovery that he had arrived at Melbourne airport on a false passport”. Finally, under this heading, the Tribunal stated:

[41]    There is one further matter which I have taken into consideration. While in immigration detention, Mr Markaj married an Australia citizen, Ms Rosa Zea, on 26 February 2012. He came into contact with Ms Zea via the internet on a site called Badoo, which is a dating and social chat site. On 27 March 2013, the Minister exercised his powers under s 195A of the Migration Act granting Mr Markaj a Bridging E visa which permitted him to reside with his wife and family in Melbourne while waiting for the final outcome of his claim for a Protection visa. Mr Markaj claimed that when the RRT decided against his claim for a Protection Visa, he ceased to be eligible for a Bridging E visa and he did not know what to do. He said his family told him to hand himself over to immigration officials but that he felt overwhelmed by shame and guilt. He also referred to a granddaughter, who was then seven years of age, who had been diagnosed with type 1 diabetes and that her mother needed help and support.

[42]    Nevertheless, when immigration officers came looking for him, he said he did not resist, had not been hiding and did not run away. Regardless, between October 2014 when his Bridging E visa expired and 6 November 2014 when he was taken back into immigration detention, Mr Markaj’s presence in Australia was again unlawful.

16    The Tribunal said, at [43], that the above added to the “weight of evidence” that statements made by the applicant “in support of his application for a visa on this occasion” should be treated with “great caution” and that his conduct in dealing with border protection officials raised “broader questions about his character”.

Risk to the Australian community should the applicant reoffend or engage in other serious conduct

17    Under this heading, the Tribunal found that the applicant’s risk of re-offending was “likely to be regarded as low”, although “should he re-offend, the risk to the Australian community could be significant”.

The best interests of minor children in Australia

18    For present purposes, the Tribunal’s discussion regarding this issue was most important. In particular, paragraph 11.2 was significant: it stated, at paragraph 11.2(1), that “[d]ecision-makers must make a determination about whether refusal is, or is not, in the best interests of the child”. Also, at paragraph 11.2(3), that “[i]f 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”.

19    Paragraph 11.2(4) of Direction No 65 specified the following factors that “must be considered where relevant” in making a determination as to the best interests of minor children in Australia:

(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 the 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.

20    In relation to the best interests of minor children, the Tribunal said:

[50]    Since his marriage to Ms Zea, Mr Markaj has acquired three stepdaughters and a stepson. All of those children are older than 18 years. This consideration does not apply to them. However, there are numerous grandchildren, by my calculation 11 in total. Mrs Markaj’s eldest daughter has two children, although one of them is older than 18 years. The remaining three children each have three children, all under 18 years of age. Two of those children are about 16 years of age. One of the grandchildren has recently been diagnosed with type I diabetes mellitus.

[51]    I had in evidence numerous letters from the grandchildren, some handwritten and a number of them typed. They all express a fondness for Mr Markaj, to whom they refer as their grandfather. It is difficult to know how much weight to give those letters without having heard personally from the children. One of the children refers to Mr Markaj helping him with his homework. However, despite some evidence to the contrary, Mr Markaj claimed not to have strong skills in written English. Otherwise, Mr Markaj’s interaction with the children appears to be limited to playing games with them. There was also no evidence that his contact was in the nature of a parental role. All of the children have contact with at least one parent and at least intermittently, with the second parent. The evidence indicated that all three of Mrs Markaj’s daughters live without their partner or the biological father of their children.

[52]    Given that Mr Markaj has only had about 1 ½ years of contact with his grandchildren, it is unrealistic to expect that Mr Markaj’s relationship with them has developed into a constructive and supportive one. Plainly, the grandchildren derive some benefit from the fact that Mr Markaj was earning an income while out in the community. There was no evidence that any of the grandchildren lacked parental care.

[53]    The granddaughter which has been diagnosed with type I diabetes requires regular injections of insulin. According to her mother, she is too young to administer that dose herself. Her mother gave evidence that she administered the dose and no doubt that will continue into the future until the child is able to do so safely herself. I see no particular role to be played by Mr Markaj.

[54]    Mr G Gilbert, who appeared on behalf of Mr Markaj, submitted I should have regard to the International Covenant on Civil and Political Rights. In particular, Mr Gilbert referred to Articles 23 and 24 which provide:

Article 23

1.    The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.

Article 24

1.    Every child shall have, without discrimination as to race, colour, sex, language, religion, national or social origin, property or birth, the right to such measures of protection as are required by his status as a minor, on the part of his family, society and State.

[55]    As I understand Mr Gilbert’s submission on this point, Mr Markaj does play a parental role regarding the upbringing of the grandchildren. That is because there is no father in three of the four families concerned. Although I accept that Mr Markaj does interact with the grandchildren and particularly so when he had been released in the community, I do not accept that he has a quasi-parental role. Given that there are 11 grandchildren, it is unreasonable to consider Mr Markaj in that role. He simply would not have time, particularly as he was working when in the community. A record of telephone interview conducted on 9 December 2014 with Mr Markaj states that during the week, he would get home from work late, tired and was not much use around the house. His wife did most of the cooking and housework. On weekends he would do some of the work around the house and garden, cutting the grass. On that basis alone, his contact with the grandchildren would appear to be incidental rather than planned. One of the grandchildren resides with Mrs Markaj and therefore would have been at the same house when Mr Markaj was on release in the community. I accept he would have had more contact with that particular grandchild.

[56]    While the letters of support written by what appear to be some of the grandchildren expressed sadness should Mr Markaj not be released into the community but rather sent back to Albania, given his separation from those grandchildren for a very significant period of time, I am not convinced that the separation on a permanent basis would result in significant harm to any of the children.

[57]    While not a strong claim, I find that the refusal to grant Mr Markaj a Partner Visa is not in the best interests of the grandchildren.

(Emphasis added; italics in original)

Expectations of the Australian community

21    Under this heading, the Tribunal stated that it had “no doubt whatsoever that the Australian community would not expect Mr Markaj to be granted a Partner visa”. The Tribunal added that “[t]o do so would be to implicitly excuse his seriously dishonest behaviour in attempting to enter Australia by unlawful means”.

Other considerations

22    The Tribunal also had regard to various “other considerations” in its application of Direction No 65, being international non-refoulement obligations and the impact on family members. The Tribunal found that if the applicant were removed from Australia, “his removal to Albania would not constitute a breach of Australia’s obligation regarding non-refoulement”. The Tribunal accepted “that family members in Australia are likely to suffer both emotionally and financially if [the applicant] were to be removed from Australia”, but it did not consider that this factor formed “a strong basis” in favour of him being granted a visa.

Reasoning to decision

23    The Tribunal concluded that the preferable decision was to refuse the applicant the visa he sought and so, affirmed the delegate’s decision. The need to protect the Australian community from criminal or other serious conduct and the expectations of the Australian community were both primary considerations. The Tribunal held that the former weighed heavily against the grant of the visa, while the latter carried “significant weight” against the grant of the visa. The assessment of risk to the Australian community, together with the best interests of minor children, and the impact on other members of his family, were primary and other considerations that, in the Tribunal’s view, weighed in favour of granting the visa, but not significantly so. With respect to the best interests of minor children, the Tribunal held that “[g]iven the limited time [the applicant] has had to spend with his grandchildren, being limited to a period of 18 months…this is not a strong consideration” and thus, it was one which “[did] not carry significant weight” in favouring the grant of the applicant’s visa. Non-refoulement obligations were a neutral consideration.

The Judicial Review GRound

24    To succeed in this judicial review application, the applicant must show that the Tribunal’s decision was affected by jurisdictional error: ss 474, 476A, Migration Act. In Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323, Gaudron J said at [41], in relation to an administrative tribunal:

For the purposes of mandamus and prohibition, a tribunal is said to have failed to exercise its jurisdiction if it has wrongly denied the existence of its jurisdiction or mistakenly placed limits on its functions or powers. If the tribunal wrongly holds it has no jurisdiction or is not authorised to make a particular decision, there is said to be ‘an actual failure to exercise jurisdiction’. On the other hand, there is said to be a ‘constructive failure to exercise jurisdiction’ when a tribunal misunderstands the nature of its jurisdiction and, in consequence, applies a wrong test, misconceives its duty, fails to apply itself to the real question to be decided or misunderstands the nature of the opinion it is to form. A constructive failure to exercise jurisdiction may be disclosed by the Tribunal taking an irrelevant consideration into account. Equally, it may be disclosed by the failure to take a relevant matter into account.

(Footnote omitted)

25    A failure to comply with a condition on the exercise of a power will not amount to jurisdictional error if compliance with the condition could have made no difference to the outcome: Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 264 CLR 123 at [30] (Kiefel CJ, Gageler and Keane JJ).

26    As indicated at [6] above, the applicant raised one ground for judicial review, although there were a number of sub-grounds. The primary ground was expressed in terms of the Tribunal’s failure to consider a relevant consideration, or perform the statutory task set by s 501(1) of the Migration Act, or its engagement in illogical reasoning. At the hearing, the applicant’s counsel noted that constructive failure to exercise jurisdiction would be the “most apt” summary of the applicant’s case.

27    There is, it seems to me, nothing wrong in adopting this less than tidy approach. As others have noted, the categories of challenges that may be made to administrative action are not impermeable. Rather, the various grounds of judicial review overlap to some extent, depending on the statutory context, the decision and its reasons, and the nature of the suggested error: compare Hong v Minster for Immigration and Border Protection [2019] FCAFC 55; 269 FCR 47 at [23]–[24], citing Boddington v British Transport Police [1999] 2 AC 143 at 152.

28    It is well-established that there will be a constructive failure to exercise jurisdiction where a decision has been given in the purported performance of a duty to decide, but is vitiated because the “decision-maker misconceived its role, misunderstood the nature of its jurisdiction … or failed to apply itself to the question which the relevant statute prescribed”: NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77; 228 CLR 470 at [41] (Gummow J). Error of this kind may be shown where the Tribunal fails to evaluate a “substantial, clearly articulated argument relying upon established facts”, and where the nature of this failure is sufficient to suggest that the Tribunal misunderstood its statutory task: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 197 ALR 389 at [24]–[25] (Gummow and Callinan JJ); Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; 230 FCR 431 at [52]–[54]; SZSSC v Minister for Immigration and Border Protection [2014] FCA 863; 317 ALR 365 at [80]. The Full Court in DVE18 v Minister for Home Affairs [2020] FCAFC 83 at [35] held that these principles apply to the exercise of the power conferred by s 501 of the Migration Act to refuse to grant an In-Country Humanitarian (Class XB) visa. Equally, they would also apply to the exercise of power under that provision to refuse to grant a Partner (Temporary) (Class UK) visa, such as the applicant sought in this case.

Sub-ground (a) – “parental role”

Parties’ submissions

29    In written submissions filed prior to the hearing, the applicant submitted that the Tribunal erred at [50]–[53] of its reasons by taking an unreasonably or illogically narrow approach to the concept of the “parental role” for the purposes of paragraph 11.2 of Direction No 65. In these submissions, the applicant argued that the Tribunal had understood the term “parental role” to relate “only to concrete activities engaged in with the minor child, time spent outside immigration detention together and financial support”, whereas the term “parental role” embraced “concepts of emotional support, affection and encouragement, companionship and the provision of stability in the overall family environment”. There was, so the applicant submitted, a “significant body of evidence” regarding these latter matters. The applicant submitted that the Tribunal failed to have regard to this evidence because of its overly narrow understanding of the concept of “parental role”.

30    At the hearing, counsel for the applicant submitted that the Tribunal’s consideration of parental role was “too myopic” such that “it didn’t give consideration to the whole of the material … and thereby failed to discharge jurisdiction”. In this connection, counsel referred to the detailed report of Mr Peter Moore, a social worker, who had assessed “the strength and composition of the family relationships”. In his report, Mr Moore had concluded that the applicant was “essential to the well-functioning and development of this family”. Counsel submitted that the Tribunal had not had regard to Mr Moore’s report in considering the best interests of minor children, including the parental role the applicant was likely to play in the family in the future or whether there were others who already fulfilled a parental role in relation to each of the children in the family (as required by subparagraphs 11.2(4)(b) and (e) of Direction No 65).

31    The Minister submitted that as “parental role” was not defined in Direction No 65, it was open to the Tribunal to construe it by reference to the factors it had in fact considered. Further, the Minister contended that the Tribunal had in fact considered the grandchildren’s fondness for the applicant but that, given the other evidence before it, it had been appropriate, and consistent with Direction No 65, for it to place weight on the limited period of time during which the applicant had been in the community to find he had played no parental role, or one that did not warrant significant consideration.

32    As to the Tribunal’s claimed failure to refer to Mr Moore’s report in considering the applicant’s parental role, counsel for the Minister submitted at the hearing that Mr Moore’s report was dated well before the Tribunal’s decision and, in any event, was addressed later in the Tribunal’s reasons with respect to his support for his wife and family and the impact that his return to Albania would have on them.

Consideration

33    If the applicant’s argument here were confined to the proposition that the Tribunal’s reasons disclosed an overly narrow understanding of the concept of parental role, then it seems to me, this argument must fail. Read fairly, the Tribunal’s reasons show that it considered “concepts of emotional support, affection and encouragement, companionship and the provision of stability in the overall family environment” as relevant in assessing the applicant’s parental role for the purposes of subparagraph 11.2(4)(b) of Direction No 65. The Tribunal acknowledged the “numerous letters” from the grandchildren in its consideration of whether the applicant played a “parental role” for the children in his family group. It noted that these letters expressed the children’s “fondness” for him, and the fact that “[o]ne of the children refers to [the applicant] helping him with his homework”. To the extent the Tribunal’s reasons referred to the concrete activities in which the applicant engaged with the children and the financial support that he provided, this also reflects the relationship between the applicant and the children disclosed by their letters. The length of time spent outside immigration detention was also relevant to the issue of “limited meaningful contact” for the purposes of subparagraph 11.2(4)(a) of Direction No 65.

34    As the applicants’ submissions, in writing and at the hearing, show, however, there was another aspect to the alleged “parental role” error. These submissions made it clear that it was also the applicant’s case that, in the context of making its assessment of the best interests of the minor children, particularly the matters set out in subparagraphs 11.2(4)(b) and (e) of the Direction, the Tribunal had failed to consider the findings that had been made by Mr Moore in his report with respect to the applicant’s parental role and other persons that might fulfil such a role. I interpolate here that the Minister responded to this argument, without any complaint about the fact that the applicant’s case at this point drifted away from the error identified in ground 1(a) of the applicant’s amended originating application, which, with ground 1(b), were the only grounds relevant to this part of the applicant’s case. The Minister did not, moreover, claim that he had been taken by surprise respecting this argument, which was, in any event, set out in the applicant’s written submissions filed before the hearing. In these circumstances, it appears to me appropriate to entertain and determine this aspect of the applicant’s case.

35    For the reasons I am about to state, the Tribunal erred in failing to consider Mr Moore’s report in the course of considering the extent to which the applicant was likely to play a positive parental role in the future and whether there were other persons already fulfilling that role, as required by subparagraphs 11.2(4)(b) and (e) of Direction No 65. The Tribunal’s reasons at [50]–[57] indicate that the Tribunal did not consider Mr Moore’s report, as the applicant had sought, in assessing the applicant’s claim that he played, and would in the future play, a most significant positive parental role with respect to the minor grandchildren.

36    This claim was clearly made. In his “Submissions in Response to ‘Notice of Intention to Consider Refusal’” to the Minister’s delegate dated 19 December 2016, the applicant addressed the considerations in Direction No 65 and, amongst other things, claimed that the best interests of minor children in Australia would be served by permitting him to remain in Australia. This claim was based on his relationship with his grandchildren, and was said to be supported by the evidence that the applicant provided. Under the heading “Best Interests of Minor Children”, the applicant submitted:

In the present case, it is self-evident from the considerable volume of supporting information provided – including the social work report of Peter Moore, the findings of the Migration Review Tribunal and the testimony of the children themselves by way of numerous supporting letters – that the best interests of all 10 of [the applicant’s] Australian grandchildren would be adversely affected by the decision to refuse his visa application. …

(Emphasis added)

37    The above was followed by significant extracts from Mr Moore’s report which squarely addressed the best interests of the grandchildren in having the applicant remain in Australia.

38    In an email from the applicant’s legal representative dated 13 June 2017, the Minister’s Department was advised that the applicant relied on all the information that the applicant had previously submitted in support of his visa application, and specifically provided a further copy of Mr Moore’s report.

39    The Tribunal’s attention was specifically directed to the applicant’s 19 December 2016 submission by the respondent Minister in the statement of facts, issues and contentions that the Minister filed in the Tribunal. In this document, the Minister also accepted that the applicant had played a parental role in relation to his wife’s grandchildren.

40    Further, in a statutory declaration filed in the Tribunal by the applicant, the applicant stated that he had “continued to be the central paternal figure for my family in Australia who depend on me”; that his detention had “impacted in a very severe way on our family”; and had “caused extreme hardship and severe prejudice and [difficulty] and stress to my family”. The applicant added:

I have not been able to support them financially or emotionally in the way that I could have done had I not been in detention. This has caused much difficulty.

…

Our family is a close knit family and I am the father figure to all our stepchildren and our step grandchildren, particularly as they are separated from their biological fathers.

…

I believe that for me not to be granted my Partner visa would impact on the welfare of my wife psychologically and my step grandchildren

41    Rosa Markaj, the applicant’s wife, filed a statutory declaration which said that she had read the contents of Mr Markaj’s statutory declaration and agreed with them.

42    As already stated, Mr Moore’s report was a detailed report directly relevant to the assessment of the applicant’s claim about his paternal role, which was clearly relevant to the matters that the Tribunal was required to consider by virtue of subparagraphs 11.2(4)(b) and (e) of Direction No 65. There is, however, no express reference to Mr Moore’s report in its discussion at [50]-[57] of the matters it was required to consider by virtue of paragraph 11.2 of the Direction concerning the best interests of minor children in Australia affected by the decision. Of course, it does not follow from this fact alone that the Tribunal did not consider Mr Moore’s report in considering the applicant’s claim about his parental role and the best interests of minor children in his family in Australia. It is well-established that even if evidence is not referred to in a decision-maker’s reasons, it may be open to infer that there is some acceptable reason for this, such as that the decision-maker did not consider the evidence significant to the particular case: see, e.g., Ali v Minister for Home Affairs [2020] FCA 538 at [39].

43    In this case, however, the Tribunal’s failure to refer to Mr Moore’s report in considering the best interests of minor children in Australia, including the applicant’s claims about his parental role in the context of the family group, taken with other aspects of the Tribunal’s reasons with respect to parental role, provides a strong indication that the Tribunal did in fact ignore Mr Moore’s report in this context. After considering the grandchildren’s letters, noting that they expressed a fondness for the applicant and that one referred to the applicant’s assistance with homework, and concluding that it appeared that the applicant’s interaction was otherwise “limited to playing games with them”, the Tribunal said first, that “[t]here was also no evidence that his contact was in the nature of a parental role” (emphasis added). Secondly, after noting the financial benefit the grandchildren derived from the applicant, the Tribunal said “[t]here was no evidence that any of the grandchildren lacked parental care” (emphasis added). Finally, with respect to the granddaughter with diabetes, the Tribunal said, “I see no particular role to be played by [the applicant]” (emphasis added). These statements were each directly inconsistent with the information contained in Mr Moore’s report. Had the Tribunal considered Mr Moore’s report, it would not have been open to it to have concluded that there was “no evidence” as to parental role or the grandchildren’s lack of parental care. It may have been open to it to conclude that there was no role to be played by the applicant with respect to the granddaughter with diabetes, but one would have expected the Tribunal to address Mr Moore’s contrary observations in doing so.

44    Mr Moore’s report was based on extensive interviews with the applicant, his wife, her children, one of their partners, and eight of their grandchildren. In the report, Mr Moore referred at length to the closeness of the extended family, the strong relationships the applicant had developed with the grandchildren, and the emotional and financial support the applicant provided to them.

45    First, with respect to the parental role played by the applicant, Mr Moore observed:

A common tool used in family counselling is a genogram. Fundamentally it is a family tree showing relationships and how the family fits together. In the therapeutic model it also displays trends and family behaviours that are often repeated in families. I completed a genogram looking at common intergenerational issues in Mrs Markaj’s family. An obvious trend was low level schooling and early pregnancy. The involvement of Mr Markaj in this family created an observable change. Mr Markaj has completed schooling to year 12 level prior to his education being affected by immigration. Mrs Markaj’s children and grandchildren all related how much they were affected by Mr Markaj placing a major importance on schooling and encouraging success. They further all related his help with their school work and the fact that he did it in a fun and supportive way. [P] even related how she does her homework with Mr Markaj in the detention centre.

(Emphasis added)

46    Mr Moore also concluded that:

I assess the Markaj family of four children and 10 grandchildren to be a very complex family due to the family history and current medical conditions. I have formed the opinion that Mr Markaj is essential as the sole income earner and his general stabilising influence; that he is essential to the well-functioning and development of this family; and his long term absence (possibly permanent) overseas will be disastrous for the family and would create “significant hardship more than that experience by any family who have a member who is required to depart temporarily overseas”.

(Emphasis added)

47    Secondly, with respect to the grandchildren lacking parental care, Mr Moore observed:

[P], Mrs Markaj’s grand daughter has lived with Mrs Markaj intermittently for most of her life and spoke fondly of Mr Markaj as the only real father figure she has had. This is despite her having lived with several other family members over the years.

...

[P] in particular was an example of the affect that Mr Markaj has had on the family. She had a difficult upbringing including being moved between family members and witnessing her mother and other family members (not from Mrs Markaj’s side) involvement in the illicit drug scene. [P] is now 15 and in year 10. If she was to follow the family trend she would at this stage be pregnant and dropping out of school. Instead she is diligently doing her homework and aims to become a surgeon which given the subjects she is enrolled in at school is possible. [P’s aunt] informed me that Mr Markaj had supported [P] to develop life skills through what I would describe as an informal supported independence program that saw her develop a safe social environment with a platonic boyfriend…

(Emphasis added)

48    Finally, with respect to the grandchild with diabetes, Mr Moore said:

I was interested in the emphasis that was placed on [K’s] diagnosis of “type 1 diabetes” and the need for Mr Markaj’s assistance. According to the Australian Institute of Health and Welfare 0.1 % of the Australian population live with “type 1 diabetes”. The Institute identifies “type 1 diabetes” “as a serious, life-long disease which causes a major health, social and economic burden for individuals with the disease, their families and the community”.

… [S]everal family members mentioned that Mr Markaj was a major support with managing the illness through assisting Anna with the monitoring of the blood sugar levels and [K’s] diet and keeping [K’s] spirits high. This would be in synchronicity with all the other observations regarding Mr Markaj from both the family and the external sources and would certainly assist the family to cope through the supportive and calming influence he has on the family. Significantly Mrs Markaj's inability to independently care for [K] has a real potential to destroy the close supportive family relationship that exists as she could not be left alone with [K] for any significant amount of time that would include a meal or snack break. The presence of Mr Markaj would have a direct impact on maintaining this relationship.

(Emphasis added)

49    As already noted, in oral submissions at the hearing, the Minister’s counsel submitted that the Tribunal had in fact considered Mr Moore’s report, as the report is referred to later in the Tribunal’s reasons. Under the heading, “Impact on members of the family”, the Tribunal recorded:

[80]     Despite the dysfunctional nature of the entire family, the evidence discloses Mr Markaj has made a genuine effort to support his wife and extended family. An assessment done by Mr Peter Moore, a social worker, after Mr Markaj was taken back into immigration detention, plainly supports that statement. Whether his relationship with the entire family would continue were he granted a Partner visa remains questionable. Mr Markaj’s record of being untruthful and manipulative remains of serious concern to me.

(Emphasis added)

50    In my view, contrary to the Minister’s submission, the above suggests that the Tribunal did not consider Mr Moore’s report for the purposes of assessing the applicant’s claims regarding the significance of his parental role in securing the best interests of the minor grandchildren and for the purposes of subparagraphs (b) and (e) of 11.2(4) of Direction No 65. I would not infer that the failure to refer to the report in this context is explained by it being thought immaterial by the Tribunal or by the Tribunal having unexpressed concerns as to its reliability due to it being prepared some years before. To the extent the Tribunal referred to the report in its reasons, the Tribunal did not disclose any such concerns, but rather appeared to accept Mr Moore’s findings as reliable. In these circumstances, I would not infer that the failure to refer to his report in the context of considering the applicant’s parental role and the children’s best interests can be explained, as the Minister submitted. To the contrary, I would infer that, had the Tribunal considered the report for these purposes, it would have referred to Mr Moore’s specific findings, which were contrary to its own, in its discussion of these matters and explained directly why it rejected the evidence on which the applicant relied for this purpose, including his statutory declaration and Mr Moore’s report, or gave it relevantly limited weight.

51    In this case, the Tribunal’s failure to consider Mr Moore’s report respecting the applicant’s parental role and its impact on the best interests of the grandchildren was relevant in two related but different regards. First, this was a failure to consider evidentiary material relevant to the matters that the Tribunal was required to consider in accordance with paragraph 11.2(4) of Direction No 65 and, in particular, subparagraphs (b) and (e). Secondly, this was also a failure to consider the applicant’s claim by reference to the evidence that he put forward that he was “the father figure to all our stepchildren and our step grandchildren, particularly as they are separated from their biological fathers” and that the refusal of permission to stay in Australia would have a significant adverse effect on the welfare of the minor step grandchildren, as well as on other members of the family. On either analysis, the Tribunal’s failure in this case constituted a constructive failure to exercise its jurisdiction.

52    As DVE18 indicates, in making a decision under s 501(1) of the Migration Act, the Tribunal is tasked with considering any claim that clearly emerges from the materials before it. The applicant’s claim that he was a “father figure” to his minor step grandchildren, amongst others, “particularly as they are separated from their biological fathers” was a claim of this kind. To paraphrase what the Full Court said in MZYTS at [38], this task could not be lawfully undertaken without a consciousness and consideration of the submissions, evidence and material advanced by the visa applicant most likely to give the Tribunal an accurate picture of the strength and composition of the family relationships in the applicant’s family and the applicant’s particular role within that family. In MZYTS, also at [38], the Full Court went on to say:

While it is most certainly the case that “[i]t is for the applicant to advance whatever evidence or argument she [or he] wishes to advance in support of her [or his] contention that she [or he] has a well-founded fear of persecution for a Convention reason”, the Tribunal “must then decide whether that claim is made out”: Abebe v Commonwealth (1999) 197 CLR 510 at [187]. … [T]hat decision could only be made by the Tribunal after evaluation of all the pertinent material put forward by the visa applicant in support of the specific claim (and, of course, any contradictory information to which the Tribunal chose to make reference) …

53    While the present case concerns an application for a partner visa, rather than a protection visa as in MZYTS, the principles are the same. In this case, it was for the applicant to put forward evidence and arguments to support his contention that the Minister’s discretion should not be exercised against him, and that the preferable exercise of discretion was to grant him the partner visa he sought. The applicant advanced detailed submissions and evidence, including about his parental role in relation to his minor step grandchildren. The evidence on which he relied included Mr Moore’s report, which clearly bore on the applicant’s claim about the significance of his parental role for the family’s welfare, especially for the welfare of the minor children.

54    As others have said, the distinction between claims and particular evidence highly relevant to a claim may be a flimsy one. Robertson J was clearly correct when he said in Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; 212 FCR 99 at [111]:

… [T]here is no clear distinction in each case between claims and evidence... The fundamental question must be the importance of the material to the exercise of the Tribunal’s function and thus the seriousness of any error. In my opinion the distinction between claims and evidence provides a tool of analysis but is not the discrimen itself.

55    Similarly, in VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 at [77], the Full Court considered that the Tribunal was required to have regard to a particular document in part because it was “arguably of critical importance to the claims of all the appellants”.

56    While the Tribunal addressed what it understood to be the applicant’s claim to have a parental role with respect to his grandchildren, this claim, as disclosed in its reasons at [50]–[57], was qualitatively different from the claim that the applicant was in fact making when he said in his statutory declaration that “I am the father figure to all our stepchildren and our step grandchildren, particularly as they are separated from their biological fathers”. The particular nature of the applicant’s claim would have been disclosed to the Tribunal if it turned its mind in this connection to Mr Moore’s report, being part of the evidence the applicant advanced in support of his case for a favourable exercise of discretion. Had the Tribunal done so, it would have been obliged to consider Mr Moore’s findings (including those contrary to its own) and his opinion that the applicant was “essential to the well-functioning and development of this family”, including the minor grandchildren which comprised it. It was, of course, open to the Tribunal to reject Mr Moore’s opinion including on the bases identified by the Minister’s counsel at the hearing. It is the absence of any evaluation of Mr Moore’s opinion and findings about the family and the applicant’s particular role with respect to its members, especially the minor grandchildren, that is telling. I infer from the Tribunal’s reasons, including the absence of any reference to Mr Moore’s findings, that the Tribunal did not in truth understand the applicant’s claim, including the features of this particular family that made the claim particularly significant, and therefore did not address it. This constitutes a constructive failure to exercise jurisdiction, in the sense discussed in the authorities referred to at [28] above, including DVE18. In addressing paragraph 11.2 of Direction No 65, and particularly subparagraphs 11.2(4)(b) and (e), the Tribunal did not address what in truth the applicant claimed to be the case, judged by reference to the evidence on which he relied.

57    Of course not every failure to consider a claim, an argument, or particular evidence will constitute a constructive failure to exercise jurisdiction, and jurisdictional error. The omission in the present case amounts to a failure to determine a question at the heart of the applicant’s case before the Tribunal. It cannot be said that had the Tribunal given proper consideration to the claim the applicant was actually making, having regard to the reliance he placed on Mr Moore’s report, the outcome could have been no different. Mr Moore’s report was significant evidence relevant to subparagraphs 11.2(4)(b) and (e) of Direction No 65. It was evidence of a relevantly qualified and independent person capable of corroborating the applicant’s claims. Had the Tribunal considered the report, it would have been open to it to conclude that the applicant had indeed played a significant positive parental role with respect to the grandchildren and could do so into the future, particularly with respect to the younger grandchildren.

58    It could also have formed the opinion that the capacity of others to successfully fulfil a parental role in relation to the relevant children was limited. The Tribunal would presumably have then given greater weight to the fact that the best interests of minor children favoured the grant of the visa. Given that this was a “primary consideration” for the purposes of Direction No 65, this might have been enough to tip the balance in the Tribunal’s decision-making in the applicant’ favour, notwithstanding the Tribunal’s other adverse findings. Whether characterised as a constructive failure to exercise jurisdiction or as a failure to have regard to a relevant consideration, the error is material, and thus properly characterised as jurisdictional.

59    For the above reasons, I would set aside the decision of the Tribunal and remit the matter to the Tribunal for determination according to law.

60    In this event, it might be thought unnecessary to consider the applicant’s other grounds. For the sake of completeness, however, I address them below.

Sub-ground (b) – diminished capacity among those occupying parental roles

Parties’ submissions

61    With respect to sub-ground 1(b), the applicant submitted that the Tribunal erred in its consideration of “whether there are other persons who already fulfil a parental role in relation to the child” for the purposes of subparagraph 11.2(4)(e), in so far as the claims, evidence and argument before the Tribunal revealed a risk of diminished capacity amongst those occupying parental roles (in particular, Mrs Markaj and her stepson, J) with respect to certain minor grandchildren if the applicant was not given permission to remain in Australia. It was submitted that the Tribunal relevantly erred by failing to consider this circumstance in connection with subparagraph 11.2(4)(e) of Direction No 65.

62    The Minister’s written submissions did not address whether the Tribunal was required to consider future diminished capacity of those fulfilling parental roles for the purposes of subparagraph 11.2(4)(e). The Minister submitted that “[t]here was nothing about the family’s evidence in this respect [i.e. with respect to diminished capacity] that required a different approach from the Tribunal”. In oral submissions, counsel for the Minister similarly said that the argument about diminished capacity could not succeed “because there wasn’t evidence before the tribunal [about diminished parental capacity] that was sufficiently clear to require it to consider that this was something that would happen”.

Consideration

63    Subparagraph 11.2(4)(e) required the Tribunal to consider “[w]hether there are other persons who already fulfil a parental role in relation to the child” (emphasis added). That is, this sub-paragraph was directed only to an existing state of affairs, as opposed to possible future events. Evidence that a person presently fulfilling a parental role was at risk of being unable to fulfil that role in the future was not relevant to this subparagraph, and the Tribunal was not required by reason of that subparagraph to consider such evidence. It follows that, even if it is accepted that Mr Moore’s report and the report of Dr Peter Cook, psychologist, provided evidence that the applicant’s wife and J would have difficulty in fulfilling their existing parental roles without the applicant’s support, the Tribunal was not required by this subparagraph to consider that possibility. Sub-ground (b), which alleged that subparagraph 11.2(4)(e) mandated consideration of the possible future diminished capacity of the applicant’s wife and J to fulfil parental roles, must therefore fail.

64    It does not follow from this that the Tribunal could not have considered a possibility of this kind if there had been sufficient evidence before the Tribunal. That the Tribunal did not do so in this case may have been because the Tribunal considered that there was insufficient evidence regarding the risk of diminished parental capacity before it, as the Minister submitted. In this respect, I note that, in his report, Mr Moore touched on the subject obliquely when he said that there would a “real expectation” that the applicant’s departure would adversely affect his wife’s mental health and that this would have a negative impact on those who depended on her. In his later report, Dr Cook focussed on the effect that the applicant’s departure from Australia would have on his wife’s mental health, but did not specifically address the effect this might have on her capacity to perform her parental role. Both reports said nothing specifically about J’s capacity to perform his parental role.

65    For the reasons stated, sub-ground (b) is not made out.

Sub-ground (c) – illogical reasoning

Parties’ submissions

66    The applicant submitted that the Tribunal’s reasoning in its reasons at [55] was plainly illogical because there was no logical connection between the applicant’s evidence that he contributed to domestic tasks and the inference the Tribunal drew that, as he also worked during the week, it followed he had no time for his minor grandchildren.

67    The Minister submitted in response that this submission was based on a misreading of the Tribunal’s reasons; and that the better reading was that the Tribunal did not accept that the applicant played a parental role in relation to all eleven of his grandchildren, given his commitments at work meant he was not available in a full time capacity to be involved in their lives.

Consideration

68    This is not the occasion to explore the law relating to illogicality as a ground for jurisdictional error. It suffices to say that the standard is a relatively high one, which has not been met here. In, for example, Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at [131], Crennan and Bell JJ said that, to amount to jurisdictional error, illogicality of the kind said to exist must be serious in that it must be such that no reasonable (or logical or rational) person could have reached the same conclusion on the same evidence: see also Minister for Immigration v Sabharwal [2018] FCAFC 160 at [45]; DCP16 v Minister for Immigration and Border Protection [2019] FCAFC 91 at [81]–[88]. The Tribunal’s reasoning at [55] plainly does not satisfy this test. When the Tribunal’s reasons are fairly read, it is clear enough that the Tribunal inferred that the applicant did not have time during the week to take a parental role with respect to all of his 11 grandchildren from his evidence that he worked full-time that during the week and arrived home “late [and] tired”, together with the evidence that only one grandchild lived with him and his wife. It cannot be said that this inference was so unreasonable that no reasonable person could have drawn it on the evidence before the Tribunal. The Tribunal also inferred from the applicant’s evidence about the work he did at home at the weekends that he did not have sufficient time to engage with his 11 grandchildren at this time. This latter inference was, perhaps, an uncharitable one, and other people may not have reached the same conclusion. Considered, however, in the light of the Tribunal’s reasons as a whole, it does not seem to me that the Tribunal’s conclusion here was so unreasonable that no reasonable person could have reached it on the evidence. It must be borne in mind in this context that the Tribunal expressly distinguished between the position of the grandchild who lived with him and his wife, and the position of the other 10 grandchildren who did not.

69    For the reasons stated, sub-ground (c) is not made out.

Sub-ground (d) – incorrect state of satisfaction

Parties’ submissions

70    Finally, the applicant submitted that the Tribunal’s statement, at [56] of its reasons, that it was “not convinced that the separation [from the applicant] on a permanent basis would result in significant harm to any of the children” set the “state of satisfaction” too “high” and imported a test of “significant harm”, which was “wholly different” to the correct enquiry about the “best interests” of minor children. The Minister responded that the Tribunal’s statement that it was “not convinced” that the separation would result in significant harm was not a statement of a “test” that had been applied. The relevant test had been correctly set out by the Tribunal earlier in its reasons. I accept the respondent’s submissions in this respect.

Consideration

71    Reading the Tribunal’s reasons fairly and as a whole, and in conformity with the approached approved in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259, I am unable to accept the applicant’s submissions. The Tribunal’s reasons clearly show that it appreciated the nature of the enquiry required by Direction No 65 and, in particular, in its application of paragraph 11.2. There are ample indications of this, including that: (1) the relevant discussion (at [49]–[57]) appears under the heading “The best interests of minor children in Australia”; (2) the Tribunal commenced this discussion by setting out the relevant parts of paragraph 11.2 of Direction No 65, which specifically concerned the “best interests of minor children in Australia affected by the decision”, and repeatedly refers to “the best interests of the child” or similar; (3) the Tribunal’s conclusion (at [57]) is in the terms of the correct enquiry, it being said that “the refusal to grant Mr Markaj a Partner Visa is not in the best interests of the grandchildren” (emphasis added); and (4) the Tribunal also stated the enquiry correctly in its concluding assessment of the effect of the various considerations, referring to “the best interests of minor children in Australia” at [92] and in its ultimate conclusion (at [97]).

72    The reference to “significant harm” at [56] is not a statement of any “test” of satisfaction or otherwise. Rather, it is a statement expressing the Tribunal’s assessment about the nature of the harm the grandchildren would suffer if the applicant were removed from Australia. This was relevant to the Tribunal’s determination about the weight to be given to the consideration, “best interests of minor children … affected by the decision”. It will be recalled that the Tribunal acknowledged the “sadness” the grandchildren had expressed with respect to the possibility that the applicant would not be given permission to remain in Australia. The Tribunal also considered the nature of any harm that their consequential separation from him would involve for them in the course of determining the extent to which such separation would be contrary to the grandchildren’s best interests. That in the Tribunal’s view separation would not result in “significant harm” was one of its reasons for it concluding that the best interests of the grandchildren was “not a strong claim”. For these reasons, the Tribunal did not err in the manner alleged by sub-ground 1(d), and this ground must also fail.

DISPOSITION

73    For the reasons stated above, although the applicant failed on sub-grounds (b)-(d), he established jurisdictional error under sub-ground (a) of the amended application filed by him or on his behalf on 12 June 2018. In this circumstance, I would make the following orders:

1.    a writ of certiorari be issued quashing the decision of the second respondent made on 20 September 2017 in file number 2017/3869;

2.    a writ of mandamus be issued directed to the second respondent requiring it to determine the application for review of the decision made by a delegate of the first respondent on 19 June 2017 according to law; and

3.    the first respondent pay the applicant’s costs of and incidental to this proceeding.

Associate:

Dated:    20 October 2020