Federal Court of Australia

VZKW v Minister for Immigration, Citizenship, Migration Services and Multicultural Affairs [2021] FCA 579

ORDERS

THE COURT ORDERS THAT:

1.    The application for judicial review of the second respondent’s decision made on 7 December 2020 be dismissed.

2.    The applicant pay the first respondent’s costs of and incidental to his application.

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

REASONS FOR JUDGMENT

BEACH J:

1    The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal made on 7 December 2020 by which the Tribunal affirmed a decision of a delegate of the Minister not to revoke the mandatory cancellation of the applicant’s class BB subclass 155 five year resident return visa granted to the applicant. The cancellation occurred under s 501(3A) of the Migration Act 1958 (Cth) and the decision of the delegate not to revoke the cancellation was made under s 501CA(4).

2    The applicant’s complaints, couched as his grounds of review, were that:

(a)    there was no logical and probative basis for the Tribunal’s finding that there was a real risk of reoffending by the applicant; alternatively, it was said that the finding that he posed an unacceptable risk to the Australian community was unreasonable;

(b)    the Tribunal failed to carry out its task of review under s 501CA in failing to take into account mandatory relevant considerations set out in para 13.2(4) of what I would conveniently describe as Direction 79, being a direction given by the Minister under s 499;

(c)    the Tribunal erred in failing to give genuine and realistic consideration to representations made by the applicant regarding the best interests of the applicant’s children; and

(d)    the Tribunal failed to consider relevant evidence.

3    For the reasons that follow I have little difficulty in rejecting each of these grounds save for the second ground which requires some more detailed consideration given the manner in which the Tribunal expressed itself. But at the end of the day, any imperfections in expression do not avail the applicant, and that ground must be rejected as well.

4    The applicant is a 50 year-old Vietnamese national. He lived in Vietnam until 1989, when he relocated to Malaysia. He lived in Malaysia illegally until 28 May 1992, when he moved to Australia through the sponsorship of his family members.

5    Since his arrival in Australia, where he has predominantly resided since, he has departed Australia 26 times and spent over nine and a half years offshore.

6    In 2005, the applicant was arrested in Vietnam and charged with an offence that could be described as “abusing trust in order to appropriate property” in contravention of article 140(1) of the Vietnamese Penal Code 1999. He was sentenced to and served 12 months’ imprisonment for this offence. This unlawful conduct was described in the Tribunal’s reasons at [29] to [33]. The Tribunal concluded (at [33]) that “the Vietnamese offence involved a willingness on the part of the applicant to disregard the law for his own personal benefit”.

7    In 2007, the applicant met his current wife, ML. ML was granted a visa to live in Australia and she married the applicant in January 2013. The applicant has had two sons with ML. AL was born in 2008 and HL was born in 2013. The sons are Australian citizens. I need to discuss the position of AL in some detail later in my reasons. The applicant also has an adult daughter, CL, from a previous marriage. The daughter is also an Australian citizen.

8    On 24 July 2018, the applicant was convicted of importing a commercial quantity of heroin. The offending was described by the Tribunal in the following terms (at [35] to [42]):

The conviction relates to three consignments of heroin that were imported into Australia from Thailand between April 2016 and June 2016. The more specific details of the offence as described in the sentencing comments are as follows:

(a)    On 1 April 2016 a cardboard box arrived in Melbourne from Thailand containing a number of vases. The cavities of the box’s walls contained eight heat sealed plastic bags with 2807.7 g of white powder, 72.8% of which was heroin. The total weight of pure heroin was 2044 g. The cardboard box was addressed to the applicant’s wife and listed the applicant and his wife’s home address as the relevant delivery address.

(b)    On 3 April 2016 a similar package containing vases arrived in Melbourne from Thailand. Again, within the walls of the box were a further eight heat sealed plastic bags containing 2807.4 g of white powder, 74.2% of which was heroin. The total weight of pure heroin was 2083 g. The details of the addressee included a phone number which was included in a number of mobile phones which were subsequently found at the applicant’s house.

(c)    On 1 June 2016 another cardboard box arrived in Melbourne from Thailand. Again, the walls of the box contained a further eight sealed plastic bags containing 2808.1 g of white powder 73.3% of which was heroin. The total weight of pure heroin was 2058.3 g. In this instance the cardboard box had been addressed to the name and address of the applicant’s sister.

According to the sentencing comments, the wholesale value of the imported heroin in each of the three consignments was between $800,000 and $1,040,000.

A commercial quantity of heroin for the purpose of the Code is 1500 grams. The maximum penalty for the offence is life imprisonment and/or a fine of approximately $1.35 million.

In respect of the third of the consignments, the AFP obtained authorisation to substitute the contents with an inert substance and a listening device. At about 3 PM on the afternoon of 6 June 2016 an AFP officer posing as a courier rang a phone number ending in 685 which was included on the consignment details. The AFP officer left a message indicating that the package would be delivered the next day. The next morning the police established surveillance of an address in the Western Suburbs of Melbourne which was the delivery address. During that period the applicant was observed on about eight occasions walking from his sister’s home onto the footpath and looking up and down the street.

At about 1:06 PM on 7 June 2016, the AFP officer posing as a courier driver delivered a fully substitute box where it was accepted by the applicant. The applicant provided a driver’s licence as proof of identity and signed for and took possession of the consignment. Shortly after delivery the applicant was seen walking approximately 200m down the road to a blue wagon which he then drove into the driveway of his sister’s house. The consignment was loaded into the wagon and the applicant then drove to his home address. After the applicant was seen arriving at his home, he went inside and then about 10 minutes later he was observed driving his car to a residence in nearby which he attended for only a few minutes before driving back to his home and arriving there at about 1:38 PM.

According to the sentencing comments subsequent investigations revealed a link between that other address (the “third address”) and the person to whom the second assignment had been addressed.

About 1:39 PM the police entered the applicant’s home and the unopened consignment box was found located in a locked bedroom. The applicant was present at his home together with his wife, son and other housemates.

The home was subsequently searched by police were a number of items were located including a key for the locked bedroom, a black Samsung Galaxy Note 3 mobile phone which the applicant acknowledged belong to him and the phone had a number ending in 685 which was the phone number on the details for the third consignment. The police also found phones in the possession of the applicant’s wife’s and son and two other phones located in the draw of the bedroom as well as a large hydraulic press in the garage which was found to contain traces of heroin. The sentencing comments note that the press is of a type that is used to compress heroin into blocks for sale.

9    The applicant pleaded guilty. On 24 July 2018, he was sentenced in the County Court of Victoria to a term of eight years’ imprisonment, with a five year non-parole period. For the moment I do not need to linger on the reasons of the sentencing judge, Judge Quin, who seems not to have been aware of the prior Vietnamese offending and sentence at the time she sentenced the applicant; her statement “[y]ou have no prior convictions in either Australia or Vietnam” was not correct.

10    For completeness, I note that the wife, ML, was also charged with trafficking a commercial quantity of heroin. She was acquitted of one charge concerning one of the consignments. The jury were hung concerning the other consignments, and the prosecution has discontinued those other charges.

11    On 31 May 2019, the applicant’s visa was mandatorily cancelled under s 501(3A). The applicant then made representations in support of a request to revoke that cancellation.

12    On 14 September 2020, a delegate of the Minister decided not to revoke the mandatory cancellation.

13    On 21 September 2020, the applicant applied to the Tribunal for review of the delegate’s decision not to revoke the cancellation.

14    On 7 December 2020, the Tribunal affirmed the delegate’s decision.

15    An application for judicial review of the Tribunal’s decision was made to this Court.

16    Let me say something about the relevant statutory provisions before proceeding further.

17    Section 501(3A) sets out the circumstances in which a visa granted to a person must be cancelled by the Minister. In the present case, it is not in dispute that the Minister was required to cancel the visa. The applicant had a “substantial criminal record” within the meaning of s 501(7)(c) and did not pass the character test by virtue of s 501(6)(a). The applicant had been sentenced to a term of imprisonment of at least 12 months, and is serving a full-time sentence of imprisonment for importing three consignments totalling more than six kilograms of pure heroin; although the sentencing judge only saw fit to refer to the wholesale value, clearly the retail value was many millions of dollars.

18    But the cancellation may be revoked. In this regard, s 501CA(4) provides:

(4)    The Minister may revoke the original decision if:

(a)    the person makes representations in accordance with the invitation; and

   (b)    the Minister is satisfied:

(i)    that the person passes the character test (as defined by section 501); or

(ii)    that there is another reason why the original decision should be revoked.

19    Pursuant to s 501CA(4), the Minister may revoke the decision to cancel under s 501(3A) if the Minister is satisfied that the person passes the character test (s 501CA(4)(b)(i)) or there is another reason why the original decision should be revoked (s 501CA(4)(b)(ii)). Of course, in the present case the applicant has only in substance sought to invoke the second limb (s 501CA(4)(b)(ii)) to justify revocation of the mandatory cancellation.

20    It is apparent from the terms of s 501CA(4)(b)(ii) that this limb is a broad one and essentially unconfined. But in considering the issue, both the delegate and the Tribunal were by virtue of s 499(2A) bound to comply with Direction 79. Let me at this point say something about Direction 79.

21    Relevantly to the present case, para 6.2(3) of Direction 79 directs attention to Part C thereof for the factors that must be considered in making a revocation decision. Paragraph 13(2) of Direction 79 provides that in deciding whether to revoke a mandatory cancellation there are three primary considerations, being primary in the sense that absent some factor that takes the case out of that which pertains generally they are to be given greater weight (para 8(4)), which the decision maker is required to take into account, namely:

(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.

22    I will return to saying something about paras 13(2)(b) and 13.2 concerning the best interests of minor children in Australia later.

23    Further, para 14(1) sets out “other considerations” that must be taken into account where relevant.

24    Finally, para 7(1)(b) required that the Tribunal, informed by the principles in para 6.3, must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of the applicant’s visa should be revoked. It is unnecessary to set out para 6.3.

25    Let me now turn to the applicant’s grounds of review.

Ground 1: No logical and probative basis for finding a real risk of reoffending, alternatively the finding was unreasonable

26    It is of course not in doubt that jurisdictional error may be established if the determination was irrational or illogical, including not being based upon findings or inferences of fact supported by logical grounds. But a challenge based on irrationality or illogicality will not be made out where the impugned decision is one upon which reasonable minds might differ.

27    In Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, Crennan and Bell JJ said at [131], [133] and [135]:

What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.

…

… the correct approach is to ask whether it was open to the Tribunal to engage in the process of reasoning in which it did engage and to make the findings it did make on the material before it. …

…

… Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. …

28    Applying these principles, in my view the applicant’s challenge barely rises to the level of being reasonably arguable. In any event it is not made out.

29    The applicant says that the Tribunal’s finding that there was a real risk of reoffending was an irrational and illogical finding. The applicant says that all of the evidence pointed to a conclusion contrary to the finding that there was a real risk of reoffending. First, it was said that the sentencing judge concluded that the applicant’s prospects of rehabilitation were good. I note that this does not negate a finding of real risk. In any event, there were limitations in her Honour’s assessment. Second, it was said that a Corrections Victoria report stated that the applicant had been assessed as having a low risk of reoffending. So what? That does not negate a real risk. Third, it was said that the applicant was given a parole term reflecting his rehabilitation prospects, namely, that his risk of reoffending was considered low. Maybe. But that does not negate a real risk. Fourth, it was said that Ms Lisa Jackson, a registered psychologist engaged by the applicant for the purposes of the Tribunal’s hearing, gave evidence that “the risk of the applicant reoffending again within 12 months of release from custody was very low”, and that the subsequent risk would “most probably remain low unless there were significant changes post release”. I will return to Ms Jackson’s evidence later. Fifth, it was said that there were 11 factors (as identified by the Tribunal (at [73]) that militated against the applicant reoffending. So much may be accepted, and indeed was part of the Tribunal’s calculus. But that does not negate a real risk.

30    Further, it was said that the Tribunal’s view of the apparent willingness of the applicant to circumvent his legal responsibilities for personal gain was a conclusion that was not reasonably open on the evidence. I disagree.

31    Further, it was pointed out that the sentencing judge stated that the applicant was “motivated to be involved in this offending due to the lack of finances and [his] family’s impoverished state” and that there was no evidence the applicant had obtained “significant financial benefit [or] ... change in lifestyle …”. This assessment only takes the applicant so far. And in any event it hardly points to any irrationality on the part of the Tribunal.

32    Further, it was said that the Tribunal’s conclusion that the Vietnamese offence also demonstrated a willingness to circumvent the law for personal gain was irrational. I do not frankly see why.

33    Further, it was said that the Tribunal’s concern that the applicant was not being truthful in relation to the nature and full extent of his offending did not lead to a conclusion that he was at a real risk of reoffending. It was said that the fact that the applicant gave evidence as to his own perception of his involvement does not mean he was not being truthful or seeking to downplay his involvement especially in the context that he pleaded guilty to all offences. Again, none of this points to any irrationality by the Tribunal. Indeed, these submissions are redolent of merits review seeking to be shoe-horned into the constraints of jurisdictional error.

34    Further, it was said that the Tribunal’s view that the applicant’s significant financial pressures meant that he was at a real risk of committing a similar offence was not an inference that could be drawn from the evidence. It was said that Ms Jackson herself indicated that she did not have sufficient information regarding the applicant’s financial history to form a view as to whether that history would constitute chronic financial problems for the purposes of assessing his risk of offending. Further, it was pointed out that the Tribunal accepted that some of the financial constraints circumstances were time specific including the death of the applicant’s parents. So it was said that it was not open to the Tribunal to infer that his financial circumstances were a significant factor as to why he would further offend. I disagree. Again this is all indulging in merits review.

35    Now as is apparent, I would reject this ground.

36    The Tribunal had a broad decisional freedom in weighing the factors for and against revocation and in considering the question of “another reason” (s 501CA(4)(b)(ii)).

37    The Tribunal referred to material relevant to the applicant’s submission that he was at a low risk of reoffending and a low risk to the Australian community, and in particular to the evidence of Ms Jackson (at [71] to [85]).

38    The Tribunal went on to state (at [86]):

Notwithstanding Ms Jackson’s assessment that the applicant represents a very low risk of reoffending, as well as a number of mitigating factors as described above, having considered all of the evidence before it, the Tribunal is satisfied that there are a number of significant factors which strongly suggest that there remains a not insignificant or immaterial risk of the applicant reoffending again in a similar manner.

39    I see nothing irrational about the Tribunal’s assessment or its conclusion.

40    The Tribunal was satisfied (at [92] and [93]) that the applicant was likely to face significant financial pressures again in the future. And in that context the Tribunal was concerned about the demonstrable willingness of the applicant to breach the law for personal gain (at [94]). The applicant’s criminal history clearly demonstrated such a propensity. Moreover, the Tribunal was rightly concerned that the applicant had demonstrated an ongoing willingness to engage in such behaviour in not being truthful with the Tribunal in relation to certain aspects of his offending (at [95]).

41    Indeed, as the Tribunal found, the applicant not being truthful in his evidence in some respects counter-acted his expressions of regret and purported acceptance of responsibility for his offending. In the Tribunal’s view, this tended to increase the risk of reoffending. In my view, there was nothing irrational in such a view.

42    Further, the Tribunal found (at [96]) that Ms Jackson did not have the benefit of hearing all of the applicant’s evidence to the Tribunal, including his attempts to downplay his offending. I agree. There were obvious limitations on the weight that could be placed on Ms Jackson’s opinions.

43    Further, it was not illogical or unreasonable for the Tribunal to take account of concerns regarding the applicant’s evidence as to the circumstances of his offending. They were clearly relevant to the Tribunal’s consideration of the risk of reoffending.

44    Relevantly, the Tribunal stated after considering the applicant’s evidence (at [60] and [61]):

The Tribunal was left with the distinct impression that in answering questions under cross-examination the applicant was seeking to downplay his level of culpability and the full extent of his involvement in and understanding of the offending conduct. The Tribunal found a number of the applicant’s answers under cross-examination to be completely implausible and not credible. The Tribunal also found a number of the answers to be self-serving and an attempt by the applicant to suggest a significantly lower level of interest in and understanding of the scheme than was in fact the case and also to avoid any suggestion of involvement for his brother. In particular, the Tribunal does not accept the applicant’s explanation for why he was seen walking up and down the street outside his sister’s house on the day in question, nor the purpose of parking his car 200 metres down the street, nor the purpose for locking the consignment box in his bedroom, nor the purpose of his brief visit to the third house on that day. In reaching this conclusion the Tribunal has been careful in assessing the applicant’s evidence in light of the fact that the applicant was giving his evidence through an interpreter.

In the Tribunal’s view these answers demonstrate a willingness of the applicant to not be truthful in relation to the nature and full extent of his offending. This is deeply troubling to the Tribunal. In addition, it mitigates to a real degree the extent of the applicant’s genuine acceptance of responsibility and remorse for his conduct notwithstanding his statements to that effect. Also, these answers are, in the view of the Tribunal, a further example of the applicant’s willingness to engage in a manner inconsistent with his legal obligations where he considers it to offer some level of personal benefit.

45    Further, the Tribunal also considered the sentencing judge’s assessment of the prospects of rehabilitation, but found that the sentencing judge did not have the benefit of hearing the applicant’s evidence to the Tribunal, and moreover was not aware at the time of sentencing of the fact that the applicant had a prior Vietnamese offence disclosing his willingness to circumvent the law for personal gain. I quite agree. The sentencing judge’s assessment was in some respects superficial in comparison with the advantages that the Tribunal had.

46    In my view, the Tribunal’s conclusion (at [98]) that the risk of the applicant reoffending was not so low as to be insignificant or immaterial, but rather represented a risk that was real, was supported by its analysis. Rather than being irrational, such a conclusion was cogent if not compelling on the evidence before the Tribunal.

47    Now different minds might differ as to any assessment of the level of risk, but that does not mean that the Tribunal’s findings were illogical or irrational or not based on probative material.

48    As was said in DCP16 v Minister for Immigration and Border Protection [2019] FCAFC 91 at [83] to [88] per Beach, O’Callaghan and Anastassiou JJ:

First, the use of expressions such as “illogicality” or “irrationality” may be no more than to strongly emphasise disagreement with someone else’s process of reasoning on an issue of fact (see Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [40] per Gleeson CJ and McHugh J). But that does not in and of itself establish jurisdictional error.

Second and relatedly, the use of such expressions may be little more than a contrivance to shoehorn arguments about the merits of the Authority’s conclusion into the category of jurisdictional error, but that is to descend into impermissible merits review.

Third, differences of degree, impression and empirical judgment between the approach and reasoning of the Authority as compared with the opinion of a court undertaking judicial review do not establish illogicality or irrationality (Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [78] per Heydon J). There is a high threshold. The question is whether no rational or logical decision-maker could arrive at the relevant decision on the evidence before the decision-maker (SZMDS at [130] per Crennan and Bell JJ). As their Honours said [I have set out the passage in my present reasons.]

Fourth, the weight that the Authority accorded to each aspect of the evidence was a matter for it to determine in the light of the evidence and submissions before it. Questions of weight per se are not amenable to judicial review (Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 at [27] per French J; Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297 at [5] per RD Nicholson J (Kiefel and Downes JJ agreeing); Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 41 per Mason J).

Fifth, some probative material or other logical basis for a fact finding by the Authority was sufficient. The Authority was not obliged to uncritically accept evidence or a submission made by the appellant.

49    Further, the applicant’s case before me did not improve by an attempt to characterise the so-called error as manifesting legal unreasonableness.

50    In DLJ18 v Minister for Home Affairs [2018] FCA 1650, Thawley J in the context of an application for review of a decision under s 501CA(4), summarised the relevant principles relating to legal unreasonableness with which I agree; on appeal ((2019) 273 FCR 66) his statements of principle were not impugned. His Honour said (at [21]):

The principles with respect to “legal unreasonableness” are also well established:

(1)    The question of whether a decision is legally unreasonable is directed to whether or not the decision or action is within the scope of the statutory authority conferred on the decision-maker; it involves an assessment of whether the decision was lawful having regard to the scope, purpose and objects of the statutory source of power.

(2)    A decision may be found to be legally unreasonable having regard to the scope, purpose and objects of the statutory source of power:

(a)    because it is “illogical”, but an inference of unreasonableness is not to be drawn only where a decision appears to be irrational.

(b)    if it “lacks an evident and intelligible justification”;

(c)    if it is arbitrary, capricious, lacking in common-sense or plainly unjust.

(Citations omitted.)

51    Further, I note that in DCP16 at [106] to [108] it was said:

The standard of legal reasonableness applicable to the exercise of a statutory power takes its content and boundaries from the text, context, subject matter and purpose of the particular statutory provisions under which the particular or general power is being exercised (see Minister for Immigration and Citizenship v Li (2013) 249 CLR 332).

As Li indicates, the exercise of power must be “legal and regular, not arbitrary, vague and fanciful” (at [65] per Hayne, Kiefel and Bell JJ). A lack of legal reasonableness may be concluded from an exercise of power “which lacks an evident and intelligible justification” (at [76]). It may also be concluded from “an obviously disproportionate” response or exercise of power in the particular circumstances (at [74]). French CJ explained that it may be concluded from “a disproportionate exercise of an administrative discretion, taking a sledgehammer to crack a nut … [or exceeding] what, on any view, is necessary for the purpose it serves” (at [30]). Contrastingly, Gageler J applied the test of Wednesbury unreasonableness, but did not reason to the effect that a lack of an evident and intelligible justification or an obviously disproportionate exercise of power could not in an appropriate case be a manifestation of or establish Wednesbury unreasonableness.

This Court in Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 has also emphasised two points. First, it is not appropriate merely to take the scenario in Li and address factual similarities or differences (at [41] and [42] per Allsop CJ, Robertson and Mortimer JJ). In each context in which it is to be assessed, legal unreasonableness is invariably fact dependent (Singh at [42] and [48]). Whether a particular exercise of statutory power or its lack of exercise descends into legal unreasonableness necessitates a careful evaluation of the evidence and its context in the particular application for judicial review (at [42]). Second, if the decision maker has given reasons for the relevant exercise of power or lack of exercise under challenge, then it is to those reasons “which a supervising court should look in order to understand why the power was exercised as it was” (at [47]). More generally, the intelligible justification may be found within the reasons explicitly or implicitly for its exercise or its lack of exercise.

52    Having regard to these principles and howsoever one applies these formulations of the relevant test, there is nothing in the Tribunal’s reasons that establishes legal unreasonableness.

53    I reject this ground.

Ground 2: Failure to carry out statutory task

54    The applicant says that the Tribunal failed to exercise the jurisdiction it had been given by not complying with para 13.2(4)(b) of Direction 79.

55    Now the Tribunal was required by s 499(2A) to comply with Direction 79. And it is not in doubt that a material failure to comply with the Direction constitutes jurisdictional error.

56    Let me set out some of the relevant paragraphs.

57    Paragraph 13 provides:

(1)    Under subsection 501(3A) of the Act, the Minister must cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c)) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had his or her visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the discretion to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case.

(2)    In deciding whether to revoke the mandatory cancellation of a non-citizen’s visa, the following are primary considerations:

a)    Protection of the Australian community from criminal or other serious conduct;

   b)    The best interests of minor children in Australia;

   c)    Expectations of the Australian community.

58    Paragraph 13.2 provides:

(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.

59    Paragraph 13.2(1) requires a decision-maker to make a determination about whether revocation of the cancellation decision is in the best interests of a relevant child or children. Paragraph 13.2(4) sets out a number of factors that must be considered which include the matters set out in para 13.2(4)(b). So in the present case, the Tribunal had to consider whether the applicant is likely to play a positive parental role including if he were released on parole following a parole review in June 2021 or subsequently.

60    The applicant says that although the Tribunal had regard in a general way to whether revocation of the cancellation decision would be in the best interests of his minor children in Australia, the Tribunal failed to address the positive parental role the applicant is likely to play in the future taking into account the age of the children, his past role or as a result of the skills he has learned in the parenting course he has undertaken.

61    Now the applicant accepts that the Tribunal did refer to the applicant’s commitment to play a positive parental role, but the applicant says that the Tribunal did little more than accept the applicant’s evidence regarding his commitment to each of his minor children and to do all he could when released from prison to play a positive parental type role in their lives.

62    The applicant says that whilst the Tribunal did refer to evidence that the applicant had played a significant role in the lives of his sons during the period prior to him going to prison and to the new skills that the applicant had learned in a parenting course, the Tribunal failed to consider the extent to which the applicant is likely to play a positive role in the future.

63    In summary, the applicant says that para 13.2(4)(b) was a mandatory consideration which the Tribunal was obliged to follow but did not follow in the sense of take into account.

64    I would reject this ground, although the Tribunal could have expressed itself more clearly.

65    It is clear from its reasons that the Tribunal considered the applicant’s parental role. It found that the applicant not only was likely to, but would play a positive parental role in the future in the lives of his children.

66    The Tribunal set out the evidence demonstrating the applicant’s past and present significant role in the children’s lives, his close relationships with the children and noted that the applicant had undertaken a parenting course during his time in prison.

67    The Tribunal went on to find (at [121]):

Having considered the evidence in relation to the impact a decision would have on the applicant’s two biological children the Tribunal is satisfied that it is in the best interests of both AL and HL for the applicant’s visa cancellation to be revoked. There is no question in the mind of the Tribunal that the love and affection the applicant has for his two youngest children as well as for his wife is genuine and deeply felt. In addition, the Tribunal accepts the applicant’s evidence regarding his commitment to each of the children and doing all he can on release to play a positive parental type role in their lives.

68    The Tribunal found that the children would be materially adversely impacted by the applicant’s return to Vietnam. The Tribunal considered that this impact was likely to be both financial as well as involve the absence of a father and face-to-face emotional support.

69    In my view, the para 13.2(4)(b) factor was considered by the Tribunal.

70    First, the terms of para 13.2 were expressly recited (at [100]).

71    Second, the Tribunal spoke in favourable terms about the father’s past parental role (at [102] and [103]). Further, there was reference to the applicant undertaking a parenting course whilst in prison (at [106]). This past conduct could be used to infer the likely future. At the least it implies that the Tribunal gave consideration to the para 13.2(4)(b) factor.

72    Third, there was a reference (at [73(e)] and [121]) to the applicant’s future commitment as a parent, again implying a consideration of this factor.

73    Now I accept that strictly there is a difference between the question of the father’s subjective intentions and the objective reality of whether the father was likely to play a positive parental role in the future, although the former may inform the latter. And strictly, the Tribunal did not expressly set out its position on the objective reality.

74    But I do not infer that the Tribunal failed to consider the objective reality. Indeed, its reference to these other matters including the applicant’s future commitment as a father are readily explicable in terms of the Tribunal considering that factor. Moreover, one should not over-state this consideration in terms of the short to medium term given that the father is presently serving a prison sentence for importing more than six kilograms of pure heroin, albeit that he might be paroled early.

75    Now it would have been preferable for the Tribunal to have expressly drawn the threads together in terms of the para 13.2(4)(b) factor in its written reasons. Nevertheless, I do not infer that the Tribunal failed to take this primary consideration into account. Accordingly, this ground must be rejected.

Ground 3: Consideration of best interests of the applicant’s children

76    The applicant says that there was a failure by the Tribunal to give genuine and realistic consideration to the applicant’s case and his representations concerning the best interests of his two minor children.

77    Now I accept the following propositions concerning the representations.

78    First, to give consideration requires that the decision-maker have regard to what is said in the representations, to bring the decision-maker’s mind to bear upon the facts stated in them and the arguments or opinions put forward and to appreciate who is making them.

79    Second, what is required is the reality of consideration by the decision-maker. Has the decision-maker as a matter of substance had regard to the representations?

80    Third, the degree of consideration which is necessary is affected by the centrality to the issues of the matter in question, the prominence it has assumed, and its consequences to the applicant and any other relevant person.

81    Fourth, the determination of whether the decision-maker has given active intellectual consideration to a representation may be a matter of impression reached in light of all of the facts and circumstances of the particular case.

82    Now the applicant says that there was no real consideration given by the Tribunal to the representations made by the applicant regarding the best interests of his children, specifically the likely impact that separation from the applicant would have on the two minor children, AL and HL.

83    It is said that the Tribunal failed to have regard to the evidence of the Department of Education and Training psychologist who had treated AL, Ms Pamela Loughnan, of the untold damage to their mental health and their lives and that the consequences of a permanent separation from his father may be something AL may never recover from.

84    Further, the applicant says that the Tribunal failed to intellectually engage with the evidence before it that AL’s suicidal ideations were related directly to the possibility of his father going back to Vietnam after AL had learned of the possibility that the applicant may be removed from Australia.

85    Further, the applicant says that “contextually” it is demonstrated that the Tribunal ignored relevant evidence given by Ms Loughnan. It is said that despite finding that AL “has recently expressed thoughts of suicide” which “must be taken seriously”, the Tribunal found that AL has had suicidal ideations “on a number of occasions over the course of the last four years” and did not accept that an “adverse outcome in this matter ... is beyond AL’s capacity to cope” given supports in place and progress since Ms Loughnan had been involved in the past two years.

86    The applicant says that there was no consideration by the Tribunal as to how the success of mental health supports in place prior to an adverse outcome (including intervention by Ms Loughnan) addressed AL’s risk of suicide if the applicant is removed from Australia. Nor, so it is said, is there a specific factual basis identified for this finding in circumstances where Ms Loughnan herself expressed grave concerns about her struggles to assist AL.

87    Further, the applicant says that it is not sufficient to recite, or declare as a conclusion, that because of the impact a decision would have on the applicant’s two dependent children, it is in the best interests of the children that the cancellation of the applicant’s visa be revoked. That such a conclusion is favourable to the applicant does not dispense, so the applicant says, with the need for the Tribunal to express the reasons for this conclusion beyond the general acknowledgement that “an adverse outcome in this matter is likely to cause AL significant additional stress” (at [127]) or the absence of face to face emotional support would cause·“a material and long lasting dislocation of the family” (at [123]).

88    The applicant says that the abstract level of the Tribunal’s reasoning reveals that the Tribunal did not properly engage with the diversity of factors that had a bearing upon its consideration of the children’s best interests.

89    I would also reject this ground.

90    Now the particulars to this ground that were pressed before me assert that the Tribunal gave no genuine consideration to the grave consequences on AL and HL if the applicant were removed from Australia and the possibility that AL may commit suicide if the applicant were removed.

91    In this respect, the applicant specifically submits that the Tribunal failed to have regard to the evidence of Ms Loughnan regarding AL and HL, and to AL’s suicidal ideations being related to the possible removal of the applicant.

92    But the Tribunal referred to both Ms Loughnan’s written report and to her oral evidence, particularly as it related to AL. The Tribunal made specific reference to her evidence as to the effect on AL if the applicant were removed and whether AL would recover. In referring to her evidence the Tribunal stated (at [116]):

Ms Loughnan told the Tribunal that in the event the applicant is deported, AL would be devastated. When asked whether she believed AL would recover from such an outcome she told the Tribunal that it was “difficult to say” and that she believed there would be ongoing implications and that he would not recover easily. In her written report Ms Loughnan states that in her view it is possible AL may never recover from such an outcome. She described the potential for that experience to be similar to someone dying and that it was likely to have a profound effect on his life. When asked whether she believed AL’s suicidal thoughts should be treated seriously she stated “I would not dismiss it” and that it “should be taken seriously”.

93    In its findings, the Tribunal found that it (at [124]):

… accepts the evidence of Ms Loughnan that the impact on the children is likely to be very significant and particularly so in the case of AL who has clearly suffered significantly during this period and will likely do so in the event the applicant’s visa cancellation is not revoked. The Tribunal accepts that AL has recently expressed thoughts of suicide although it also accepts CL’s evidence that he has done so on a number of occasions over the course of the last four years.

94    The Tribunal found that AL’s suicidal ideation had to be taken very seriously, and that the supports in place would be important to managing his ongoing mental health. The Tribunal then found in respect of AL’s mental health (at [126] and [127]):

Notwithstanding this, the Tribunal is not satisfied that the issues that AL is currently experiencing are likely to be fully resolved on the outcome of this Tribunal’s decision irrespective of which decision that is. The Tribunal is satisfied that the issues AL is having to manage from a mental health perspective are more complex than that.

While the Tribunal accepts that an adverse outcome in this matter is likely to cause AL significant additional stress the Tribunal does not accept that such an outcome is beyond AL’s capacity to cope. It is clear from the evidence that AL has been living with a heightened sense of stress and anxiety for some time. In addition, without in any way seeking to diminish the seriousness of the issues AL is having to manage, the Tribunal is satisfied that the evidence before it indicates a level of strength and resilience demonstrated by AL. In addition, Ms Loughnan confirmed that there are supports in place to assist AL in managing his way through the outcome of this matter and that AL has demonstrated a willingness to take advantage of the supports on offer. CL’s evidence made clear that AL has experienced similar thoughts before which when considered together with Ms Loughnan’s evidence of AL making good progress following her intervention would strongly suggest that AL has a demonstrated capacity to work through such issues. Nonetheless, the Tribunal acknowledges that irrespective of the outcome of this decision, AL is likely to face an ongoing challenge in the effective management of his mental health concerns and that the risks associated with such concerns are real.

95    Further, the Tribunal concluded (at [170]):

The evidence in relation to the mental health impact that the applicant’s current predicament has had for his two youngest children is extremely concerning. The Tribunal recognises the potential for an adverse outcome in this matter to be extremely confronting for the children and that such an outcome has the potential to exacerbate to some real degree the current mental health challenges they are having to manage

96    In my view, it is plain that the Tribunal took into account and actively engaged with the evidence of Ms Loughnan, AL’s mental health issues and his suicidal ideation from an adverse decision.

97    In summary, this ground lacks substance. The Tribunal did not just demonstrate an abstract level of reasoning or a failure to engage with the material before it. As the Minister correctly contended, the Tribunal properly addressed and considered the evidence as to the impact that separation from the applicant would have on the children and particularly AL.

Ground 4: Ignoring relevant evidence

98    The applicant says that the Tribunal did not consider the evidence that was given orally at the hearing about AL’s suicidal ideation and actions which would have affected the Tribunal’s qualitative assessment.

99    First, it is said that Ms Loughnan said that AL’s suicidal ideations were related directly to the possibility of his father going back to Vietnam. It is said that the Tribunal made no mention of or findings disregarding this evidence of Ms Loughnan.

100    Second, it is said that the applicant’s wife, ML, said that AL had become difficult, stopped eating, stayed in his room and wanted to commit suicide when he learned that his father may be sent back to Vietnam. Again, so the applicant says, there is barely a mention of this evidence and there are no findings disregarding the evidence of ML in this regard.

101    Now the circumstances in which an omission in a decision-maker’s reasons may indicate that the Tribunal failed to consider a matter that is material, amounting to jurisdictional error, has been discussed in various cases.

102    In Navoto v Minister for Home Affairs [2019] FCAFC 135, Middleton, Moshinsky and Anderson JJ said (at [85] and [89]):

Moreover, if a decision-maker under s 501CA(4) of the Act overlooks a substantial, clearly articulated argument advanced as demonstrating a reason why a cancellation decision should be revoked, which if accepted would or could be dispositive of the decision, the decision-maker may, depending on the seriousness of the error, commit a jurisdictional error: …

…

Excluding obvious cases, the determination of whether the decision-maker has given active intellectual consideration to a representation will frequently be a matter of impression reached in light of all of the circumstances of the case. In this context, whether or not the reasons of the decision-maker fall “on the wrong side of the line” … will be a matter of inference to be drawn in particular from the manner in which the representation was advanced, and the structure, tone and content of the decision-maker’s reasons. What is required by a court upon judicial review is a qualitative assessment as to whether the decision-maker has, as a matter of substance, had regard to the representations made: …

(Citations omitted.)

103    But it was also said (at [99]):

… the reasons of the decision-maker must be interpreted practically and with common sense, guided by the acknowledgment of the nature and context of administrative decision-making. Thus, in the words of the oft quoted injunction, “[t]he reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error”: …

(Citations omitted.)

104    In Minister for Immigration and Border Protection v SZSRS (2014) 309 ALR 67, Katzmann, Griffiths and Wigney JJ said (at [34]):

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

105    Now the applicant says that it may be inferred from the fact that the evidence that he referred to was not mentioned, that it was not considered or taken into account by the Tribunal. The applicant says that the Tribunal’s reasoning at [124] and [127] precludes an inference that the Tribunal turned its mind to this material.

106    The applicant says that this evidence was crucial to what was in the best interests of AL, and the impact of non-revocation on the applicant’s two youngest children.

107    But I would also reject this ground.

108    In my view the Tribunal gave consideration to this evidence. The Tribunal referred to both Ms Loughnan’s and ML’s evidence about AL’s claimed suicidal ideation and actions.

109    The Tribunal said (at [117]):

Under cross-examination Ms Loughnan told the Tribunal that AL had first expressed thoughts of suicide to a teacher in the playground and that following the incident she had met with AL together with his mother. She told the Tribunal that AL had engaged in talk of taking his life by using a rope or knives. She told the Tribunal that she did not think AL had provided that detail to the teacher but that she had asked for further details. She told the Tribunal that the incident had occurred on or around 29 October 2020 which was around the time of her report.

110    The Tribunal said (at [107]):

The applicant’s wife ML also described a close relationship between the applicant and AL and HL. She told the Tribunal that the applicant had been present when both of the children were born. She told the Tribunal that the applicant had taught AL to speak English and that he cared for them, cooked for them, bathed them and took them out of the house for activities. ML said that the applicant loved the children and that AL in particular looked up to the applicant and considered him to be his hero. ML described AL as being very excited about the prospect of the applicant being released but that when he discovered that his father could be sent back to Vietnam he said he wanted to commit suicide. ML told the Tribunal that more recently AL had become more withdrawn and that he stayed in his room and did not want to go to school. ML told the Tribunal that HL had also been very upset when he had discovered that his father could be sent back to Vietnam and that he cried a lot.

111    The evidence of both Ms Loughnan and ML, which the Tribunal considered, referred to AL having expressed suicidal thoughts at a time after being told, apparently by ML for some reason, that the applicant may be removed to Vietnam after he had served his prison term. There was also some evidence before the Tribunal that AL had expressed such thoughts at an earlier time as well.

112    Clearly, the Tribunal considered and accepted the evidence that AL had recently and in the past expressed suicidal thoughts and considered that these expressions had to be taken very seriously.

113    This ground must also be rejected.

Conclusion

114    None of the grounds have been made out. The application must be dismissed with costs.

Associate:

Dated:    31 May 2021