Federal Court of Australia

Guruge v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 630

ORDERS

THE COURT ORDERS THAT:

1.    The applicant be given leave to file an amended originating application in the form served on the first respondent on 27 May 2021.

2.    The application be dismissed.

3.    The applicant pay the first respondent’s costs, as agreed or taxed.

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

REASONS FOR JUDGMENT

O’BRYAN J:

Introduction

1    This is an application made under s 476A(1)(b) of the Migration Act 1958 (Cth) (Act) seeking judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 23 November 2020.

2    The applicant, Mr Chan Andrew Grero Guruge, is a citizen of Sri Lanka. He most recently arrived in Australia in August 2017 as the holder of a Class BC Subclass 100 Partner visa.

3    On 9 December 2019, the applicant was convicted in the County Court of Victoria for the offence of “intent to expose emergency worker to risk by driving” and a base prison sentence of 12 months was imposed. On the same day, the applicant was also convicted of the following offences: theft of a motor vehicle (sentenced to 8 months’ imprisonment, aggregate of 3 months, served concurrently); driving whilst disqualified (6 months’ imprisonment, aggregate of 2 months, served concurrently); handling stolen goods (6 months’ imprisonment, aggregate of 2 months, served concurrently); negligently dealing with the proceeds of crime (3 months’ imprisonment, aggregate of 1 month, served concurrently); and committing indictable offence while on bail (1 month imprisonment, served concurrently). The aggregate sentence imposed for the offences was 20 months’ imprisonment with a non-parole period of 14 months.

4    On 17 January 2020, the applicant’s visa was mandatorily cancelled by a delegate of the Minister under s 501(3A) of the Migration Act 1958 (Cth) (Act). It is not in dispute that the applicant did not pass the character test in s 501(3A)(a)(i) because of the operation of paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(c) (sentenced to a term of imprisonment of 12 months or more).

5    The applicant was notified of the decision to cancel his visa on 17 January 2020 and was invited to make representations as to why the mandatory cancellation of the visa should be revoked. The applicant made representations but on 31 August 2020 a delegate of the Minister decided not to revoke the cancellation under s 501CA(4) of the Act. The applicant was notified of that decision on 1 September 2020.

6    The applicant applied to the Tribunal on 2 September 2020 seeking a review of the decision of the Minister's delegate not to revoke the cancellation under s 500(1)(ba) of the Act. The Tribunal affirmed the delegate's decision on 23 November 2020.

7    On 29 December 2020, the applicant filed an application in this Court seeking an extension of time in which to file an application for review of the Tribunal’s decision. Under s 477A(1) of the Act, an application to the Court to review a decision of the Tribunal must be made within 35 days of the decision. Accordingly, the applicant was required to file his application by 28 December 2020. Under s 477A(2), the Court has power to extend that period. After hearing from the parties, on 12 February 2021 I made an order extending time and that the application for an extension of time be treated as an application for review of a migration decision filed under rule 31.22 of the Federal Court Rules 2011 (Cth). I also made an order for the applicant to file and serve a form of originating application for review of a migration decision (Form 70) which detailed the grounds of judicial review relied on by the applicant.

8    On 22 February 2021, the applicant filed an originating application. Pro bono counsel was appointed to represent the applicant and written submissions were filed in accordance with the Court’s orders on 9 April 2021. On 27 May 2021, the applicant served an amended originating application reflecting the contentions advanced in the written submission. At the hearing, the Minister did not oppose the grant of leave for the filing of the amended originating application and I granted that leave. The amended originating application stated three grounds of review. However, counsel for the applicant indicated at the hearing that the third ground was not pressed. The grounds of review that were maintained were as follows:

Ground 1: The Administrative Appeals Tribunal fell into jurisdictional error by failing to give appropriate weight to the Primary Consideration of the best interest of the minor child in Australia.

Ground 2: The Administrative Appeals Tribunal fell into jurisdictional error by giving too much weight to the evidence supporting the primary consideration of the protection of the Australian Community.

9    Section 476A(1)(b) of the Act gives the Court jurisdiction to review the decision of the Tribunal and s 476A(2) stipulates that the jurisdiction is the same as the jurisdiction of the High Court under s 75(v) of the Constitution. Consistently with that limitation, the relief sought by the applicant in his amended originating application is a writ of certiorari quashing the decision of the Tribunal and a writ of mandamus remitting the matter to the Tribunal for determination according to law. The amended originating application also seeks an order revoking the cancellation of the applicant’s visa. That is not an order within the power of the Court to make as the decision whether to revoke cancellation is a decision given to the Minister under s 501CA(4) of the Act.

10    The applicant filed an affidavit sworn by him on 20 December 2020 in support of his application. Attached to the affidavit were three documents relating to a mental health assessment of the applicant. Counsel for the applicant did not tender those documents (as they related to the third ground of review that was not pressed).

11    For the reasons that follow, I find that the Tribunal did not err in affirming the delegate's refusal to revoke the mandatory cancellation of the applicant's visa under s 501CA(4) of the Act.

Background

12    The following is a summary of the factual background that is relevant to the grounds of review raised by the applicant.

13    Mr Guruge first arrived in Australia in June 2008 on a student visa. He was married at that time to a Sri Lankan citizen and had one child born in 2007. A second child was born in 2008, and Mr Guruge returned to Sri Lanka for the birth. His wife joined him in Australia with their two children in 2009. However, that marriage broke down and she returned to Sri Lanka with their children in 2010 and obtained an ex parte divorce.

14    In 2012, Mr Guruge was advised that his student visa was shortly to expire. He had befriended an Australian citizen in Melbourne and the friend’s sister (‘LW’) offered to marry him with a view to him obtaining a spousal visa. Mr Guruge admitted in his evidence to the Tribunal that the marriage to LW was a contrivance. Mr Guruge subsequently commenced a relationship with LW’s half-sister, EW, who was then aged 15. EW became pregnant to Mr Guruge and gave birth to their son, KS, in September 2012.

15    In August 2012, Mr Guruge appeared in court on two occasions and was convicted of certain offences. On the second appearance he was placed on a 12-month Community Correction Order. By this time his student visa had expired, and he was issued with a Criminal Justice Stay visa and placed in immigration detention by the Department of Immigration.

16    Mr Guruge applied for a partner visa and associated bridging visa, which was refused in September 2012. The (then) Migration Review Tribunal affirmed the refusal of the bridging visa. In October 2012, Mr Guruge also applied for a protection visa and associated bridging visa. The bridging visa was refused on 30 October 2012 and the protection visa was refused on 7 December 2012. In March 2013, the (then) Refugee Review Tribunal affirmed the decision of the Minister’s delegate to refuse the protection visa. In July 2013, Mr Guruge was voluntarily removed from Australia.

17    In September 2013, EW and KS joined Mr Guruge in Sri Lanka and lived with him there for almost two years. In January 2015, Mr Guruge and EW married. In August 2015, EW and KS returned to Australia in August 2015. In August 2017, Mr Guruge was granted a provisional partner visa offshore. Later in August 2017, Mr Guruge re-entered Australia. Mr Guruge said that when he arrived in Australia he discovered that EW had commenced a new relationship with another man.

18    As at the date of the Tribunal proceeding, Mr Guruge and EW were still married but separated and EW was in a new relationship. Mr Guruge gave evidence that he was trying to rekindle their relationship in the best interests of their son, KS, but EW had obtained a Family Violence Intervention Order which stipulated no contact between him and EW or KS. Mr Guruge gave evidence that he had obtained a variation to that Order so that he could have at least telephone or video contact with KS.

Legislative Provisions

19    Section 501(3A) of the Act provides that the Minister (or a delegate) must cancel a visa that has been granted to a person if:

(a)    the Minister is satisfied that the person does not pass the character test because of the operation of:

(i)    paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c);

. . .; and

(b)    the person 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.

20    Section 501(6)(a) of the Act provides that a person does not pass the character test if the person has a substantial criminal record (as defined by subs (7)). Section 501(7)(c) provides that a person has a “substantial criminal record” if the person has been sentenced to a term of imprisonment of 12 months or more.

21    Section 501CA of the Act relevantly provides that:

(1)    This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.

…

(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.

22    Section 499(1) of the Act provides that the Minister may give written directions to a person or body having functions or powers under the Act if the directions are about the exercise of those functions and powers. By s 499(2A), a person or body must comply with a direction made under s 499(1). On 20 December 2018, the then-Minister made a direction titled “Direction 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA” (having a commencement date of 28 February 2019). In exercising the power in s 501CA(4) to decide whether to revoke the cancellation of the applicant’s visa, the Tribunal was required to apply Direction 79.

23    Paragraph 7(1)(b) of Direction 79 stipulates that, informed by the principles in paragraph 6.3, a decision-maker must take into account the considerations in Part C (of the Direction), in order to determine whether the mandatory cancellation of a non-citizen's visa will be revoked. Paragraph 8(1) stipulates that decision-makers must take into account the primary and other considerations relevant to the individual case (which, in the case of a decision whether to revoke the mandatory cancellation of a non-citizen's visa, are articulated in Part C). Paragraph 8(4) provides that primary considerations should generally be given greater weight than the other considerations.

24    Paragraph 13 of Direction 79 outlines the primary considerations to be taken into account, and reads in part:

13.    Primary considerations – revocation requests

    …

(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

25    Paragraph 13.1 deals with primary consideration a), protection of the Australian community:

13.1 Protection of the Australian Community

(1)     When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Mandatory cancellation without notice of certain non-citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.

(2)     Decision-makers should also give consideration to:

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

b)     The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

13.1.1 The nature and seriousness of the conduct

(1)     In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to factors including:

a)     The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;

b)     The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;

c)     The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;

d)     Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;

e)    The frequency of the non-citizen’s offending and whether     there is any trend of increasing seriousness;

…

26    Paragraph 13.2 deals with primary consideration c), the best interests of minor children in Australia affected by the decision:

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

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

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

(3)     If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.

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

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

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

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

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

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

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

g)     Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and h) Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.

Decision of the Tribunal

27    The Tribunal, in its decision record (Reasons), summarised the applicant’s criminal offending in Australia as follows:

21. Apart from the convictions in December 2019 by the County Court, Mr Guruge has an extensive criminal history in Australia. His first appearance before the Courts was at Sunshine Magistrates’ Court in August 2012. He was convicted of the following offences: Attempt to commit indictable offence; Dishonestly assist in the retention of stolen goods; and Use a false document to prejudice another. He was fined, with conviction, a total of $1,000.

22. Mr Guruge was back before the same Court later in August 2012 and convicted of the following offences: Use unregistered motor vehicle on a highway; Fail to answer bail; Drive whilst authorisation suspended; Careless driving of a motor vehicle; Theft of a motor vehicle; Drive in a manner dangerous; Possess dangerous article in a public place; and Possess any thing without authorisation in police gaol. For this group of offences, he was placed on a Community Correction Order for 12 months and required to perform 75 hours of community work.

23. In January 2013 Mr Guruge again was before the same Court and was convicted of the offence of Dishonestly undertake in retention of stolen goods. He was fined $2,000.

24. On 9 February 2018, the Applicant was before the Melbourne Magistrates’ Court. He was convicted of the offences of Possess suspected stolen goods; Posses methylamphetamine (two charges); Unlicensed driving; Use unregistered motor vehicle on a highway; Use vehicle over 14.5 GVM tonnes not compliant with regulations; Possess cannabis; Dishonestly undertake in retention of stolen goods (two charges); Negligently deal with proceeds of crime (two charges); Commit indictable offence whilst on bail (two charges); and Handle/receive/retention of stolen goods (three charges). He was placed on a further Community Corrections Order for 12 months and required to perform 125 hours of community service.

25. On 8 May 2018, Mr Guruge appeared before the Melbourne Magistrates’ Court and was convicted of the following offences: Burglary; Theft of a motor vehicle; Theft of a bicycle; Theft (two charges), Careless driving of a motor vehicle; Dishonestly undertake in the retention of stolen goods; Commit indictable offence whilst on bail; Theft from a motor vehicle; and Negligently deal with proceeds of crime (two charges). He was further convicted of the offences of Possess methylamphetamine; Go equipped to steal/cheat (two charges); Possess controlled weapon without excuse; Dishonestly undertake in the realisation of stolen goods; and Handle/receive/retention of stolen goods. For this group of offences Mr Guruge was sentenced to an aggregate of 51 days’ imprisonment and a Community Service Order of 12 months was imposed.

26. On 15 February 2019, before Broadmeadows Magistrates’ Court, the charge of Contravene Community Correction Order was found proven, as was a breach of a Community Correction Order earlier imposed, and the Applicant was sentenced to seven days’ imprisonment. He was further convicted on that date of the following offences: Possess suspected stolen goods; Posses methylamphetamine (two charges); Unlicensed driving; Possess cannabis; Dishonestly undertake in the retention of stolen goods (two charges); Negligently deal with the proceeds of crime (two charges); Commit indictable offence whilst on bail (two charges); Handle/receive/retention of stolen goods (three charges); Use unregistered motor vehicle on a highway; Use vehicle over 14.5 tonnes not compliant with regulations; Possess methylamphetamine; Possess ecstasy (MDMA/MDA/MDEA/MDA); Possess drug of dependence (not named); Traffic methylamphetamine; Have article of disguise with unlawful intent; Go equipped to steal/cheat; Deal in property suspected proceeds of crime (four charges); Possess prohibited weapon without exemption or approval; Handle/receive/retention stolen goods; Retention of stolen goods (three charges); Possess housebreaking implements (two charges); Contravene Family Violence Interim Intervention Order; Commit indictable offence whilst on bail; Theft from shop (Shopsteal); Dishonestly undertake in the retention of stolen goods; Enter a private place without authorisation or excuse; and Theft of a motor vehicle (two charges). For this group of offences Mr Guruge was sentenced to an aggregate of 175 days’ imprisonment.

27. On the same date the same Court convicted the Applicant of the offences of: Contravene Community Correction Order; Burglary; Theft of a motor vehicle; Theft (2 charges); Possess methylamphetamine; Dishonestly undertake in the retention of stolen goods; Go equipped to steal/cheat (two charges); Commit indictable offence whilst on bail; Theft from motor vehicle; Dishonestly undertake in the realisation of stolen goods; Negligently deal in the proceeds of crime (two charges); Possess controlled weapon without excuse; and Handle/receive/retention of stolen goods. For this group of offences, he was sentenced to an aggregate of 51 days’ imprisonment.

28. On 9 December 2019, the Applicant was before the County Court in Melbourne and convicted of the offences set out earlier in these reasons (at paragraph 8). On 16 January 2020, at Broadmeadows Magistrates’ Court, he was convicted of further offences: Go equipped to steal/cheat; Possess methylamphetamine; Theft of a motor vehicle; Handle/receive/retention of stolen goods (four charges); Deal in property suspected the proceeds of crime (eight charges); and Handle/receive/dispose of stolen goods (three charges). He was sentenced to an aggregate of 3 months’ imprisonment. On 8 May 2020, Mr Guruge appeared at the Moorabbin Magistrates’ Court and was convicted of the office of Theft, and sentenced to 3 days’ imprisonment, to pay $100 compensation.

28    The Tribunal found that the first primary consideration in Direction 79, the protection of the Australian community, weighed relatively heavily against revoking the cancellation of the visa (Reasons [71]). The Tribunal took into account in particular the “cumulative history of offending, the serious nature of the principal offence and that the risk of reoffending is a real risk” (Reasons [71]).

29    In relation to the second primary consideration in Direction 79, the best interests of minor children in Australia affected by the decision, the Tribunal concluded as follows:

72. The Direction requires the Tribunal to make a determination about whether the revocation of the visa is in the best interests of any relevant minor child. The only relevant child of which the Tribunal is aware is the Applicant’s son, KS.

73. The Tribunal has considered written and oral evidence that, although the Applicant was in prison when KS was born, EW took the infant to see his father on regular occasions. It is also not disputed that EW travelled to Sri Lanka with KS and lived there, apparently harmoniously, with Mr Guruge, for a period approaching two years, before she returned to Australia for medical and other reasons.

74. The Tribunal has seen a large number of photographs and some videos showing Mr Guruge with KS. This evidence appears to show a regular, loving, parental relationship between father and son. The Tribunal has also considered the written statements of the Applicant’s mother (A3) and sister (A5) both of which record the closeness between KS and his father and KS’s own involvement in their lives, as his grandmother and aunt, especially during the time KS lived in Sri Lanka. In particular, the Tribunal was provided with screenshots of text messages between the Applicant’s sister and EW inquiring about her welfare and that of KS. It was clear to me that Mr Guruge’s parents and sister took a significant interest in supporting EW in bringing up KS, especially while the Applicant was incarcerated.

75. The Direction requires me to consider whether there have been long periods of absence or limited meaningful contact, including whether an existing Court order restricts contact (paragraph 13.2 (4)(a)). That is the case here. KS was born at the end of September 2012. The Applicant remained in detention until he was deported around February 2014. It was the following year that KS was brought by his mother to Sri Lanka. As Judge Hogan remarked (GD, p 27), at no stage has Mr Guruge, after returning to Australia in August 2017, lived for any significant length of time in the same household as KS and EW.

76. The Direction requires the Tribunal to consider whether the Applicant is likely to play a positive parental role in the future, taking into account the length of time until the minor child turns 18 and any Court orders relating to access arrangements. Without denying Mr Guruge’s assertions to the Tribunal that he loves his son, the fact of having KS did not prevent him from resuming his drug-habits, including some trafficking. It also did not prevent him committing many other offences, which he knew had the potential to jeopardise his visa and, therefore, a continued chance of rebuilding some relationship with KS.

77. Mr Guruge conceded in the hearing that EW plays the main parental role in relation to KS. It is notable that in her statement to the police, EW stated that the Applicant “had been abuse towards me in the past” but gave no particulars of whether it was verbal or physical abuse or when it occurred. The Tribunal accepts that this statement was a factor in the Court deciding that a ‘no contact’ order should (initially) be made.

78. The Tribunal has examined the circumstances when the Applicant was found by the Court to have breached the Family Violence Intervention Order. Without for a moment going behind the finding of the Court, the Tribunal may examine the context surrounding offending. It would seem to me in this particular instance that the Applicant was seeking to deliver a parcel of gifts from himself and his parents, KS’s paternal grandparents, to KS and his breach centred around sending a text message to EW to ensure it had been received and to inquire whether KS liked the gifts. This does not seem to the Tribunal to be the most egregious of breaches, in the circumstances, although Mr Guruge knew he should not have made the contact. It is notable that the order has since been varied by the Court to permit facetime and telephone contact between KS and his father, which would logically be through EW, given KS’s young age. It is also notable that there was ample evidence before the Tribunal of significant bank transfers from both the Applicant and his parents to EW to help her financially and to help with KS’s day to day expenses.

79. After careful consideration the Tribunal makes a determination that this consideration weighs in favour of revoking the mandatory cancellation of the visa. This is because of the evidence that, in spite of much of his criminal conduct in Australia being when KS was an infant and then a young boy, Mr Guruge has more recently made endeavours to support his son and re-establish some form of contact, both when he was in Sri Lanka and after he returned to Australia However, that weight is tempered significantly by the long periods when the Applicant has not played a role in the life of his son, and the fact that future contact remains unresolved; Mr Guruge told the Tribunal he did not currently have a telephone number for EW, in spite of trying to make contact.

30    The Tribunal reached the following conclusions in relation to the application:

106. The Tribunal has weighed all the relevant considerations in the Direction. Two of the three primary considerations weigh against the Applicant, one heavily and one relatively heavily. The other primary consideration weighs in favour of the Applicant. This is the one relating to the best interests of his son. The Tribunal has found that primary consideration weighs in favour of restoring the visa, but for the reasons set out in detail above, not heavily, and finds that this consideration does not weigh determinatively. It is particularly relevant that the contact that Mr Guruge is currently permitted by the Court to have with KS, namely through telephone and electronic means, is also available to him from Sri Lanka, albeit accepting his genuine desire to re-establish physical contact.

107. In respect of the other considerations, one weighs slightly in favour of the Applicant, the strength, nature and duration of his ties to Australia. Of the other considerations, they weigh neutrally. The Tribunal is not limited only to the considerations set out in the Direction in deciding whether there is ‘another reason’ in the terms of section 501CA(4)(ii) of the Act to revoke the mandatory cancellation of the visa. But the Tribunal finds there is no other factor before it that should be taken into account in considering the exercise of the statutory discretion which would affect the outcome of this merits-review.

108. The long list of offending, in only a relatively short time that the Applicant has resided in Australia, makes melancholy reading, and this, combined with the frank admission of the Applicant that he intentionally provided false information to the Department in order to secure, or continue to hold, visas in the past, combine to a conclusion by the Tribunal that the decision not to revoke the mandatory cancellation of Mr Guruge’s visa was the correct decision and should be affirmed.

Ground 1

31    By ground 1, the applicant contends that the Tribunal fell into jurisdictional error by failing to give appropriate weight to the Primary Consideration of the best interest of the minor child in Australia.

32    The applicant submitted that Direction 79 required the Tribunal to make a determination about whether cancellation is, or is not, in the best interests of the child by considering 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". The applicant submitted that, while the Tribunal purported to engage with this consideration at [72]-[79] of its Reasons, the discussion drew incorrect inferences from the evidence, and the Tribunal did not give the matter “proper, genuine and realistic consideration” or engage in an “active intellectual process” (referring to Singh v Minister for Home Affairs (2019) 267 FCR 200 at [30], citing Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352 at [45]). In support of that submission, the applicant relied on the following four matters.

33    First, the Tribunal stated at [79] that “in spite of much of his criminal conduct in Australia being when [his son] was an infant and then a young boy, Mr Guruge has more recently made endeavours to support his son and re-establish some form of contact, both when he was in Sri Lanka and after he returned to Australia”. The applicant argued that this statement infers that there has been a period of time that he has not made endeavours to support his son and maintain contact. However, the evidence before the Tribunal showed that the applicant has at all times been committed to supporting his son. The applicant’s family provided financial support for his son and the applicant made daily international phone calls to his son when the applicant lived in Sri Lanka.

34    Second, while the Tribunal concluded that the best interests of the applicant’s son weighed in favour of revoking the mandatory cancellation of the visa, the Tribunal stated at [79] that “that weight is tempered significantly by the long periods when the Applicant has not played a role in the life of his son”. The applicant argued that the only reason that he had not played a role in the life of his son is because of an intervention order that is in place against him on the application of his estranged wife, EW. The applicant argued that it is implicit in paragraph 13.2(4)(a) of Direction 79 that periods of absence between a non-citizen and child are only relevant if the absence is voluntary. The applicant’s separation from his son was involuntary, caused by the intervention order. The applicant argued that there are no periods in which he has not endeavoured to play a role in the life of his son, and the Tribunal erred in tempering the weight of this consideration.

35    Third, the applicant argued that the Tribunal failed to take into account the following further considerations:

(a)    The applicant has remained in Australia in immigration detention, at this time for a period of 5 months, and previously in 2013 for a further 6 months, in the hope of being involved in his son’s life.

(b)    If the applicant is removed from Australia, the chances of his son being able to engage with him at a meaningful level will be remote, especially where the mother, EW, has shown that she is unwilling to allow contact and has not allowed contact for a significant length of time. The applicant’s son is of Sri Lankan heritage and removing the applicant from Australia will deprive the son of an ongoing connection to his culture which is not in the son’s best interest.

(c)    The applicant’s family are in a position to continue providing ongoing financial support to the son, in aid of his being given the best opportunities, especially with regards to education. Were the applicant removed from Australia, and given EW’s ongoing position of not allowing any contact, the chances of the son benefiting from the family’s concern for his education will be remote which is not in the son’s best interests.

36    Fourth, the applicant argued that the Tribunal erred at [106] where it stated that “the contact that Mr Guruge is currently permitted by the Court to have with KS, namely through telephone and electronic means, is also available to him from Sri Lanka”. The applicant submitted that while the current intervention order allowed the applicant to have contact with his son by telephone and electronic means, there is currently no order in place to compel the applicant’s estranged wife, EW, to allow the applicant’s son to have contact with his father. Therefore, the Tribunal erred in finding that telephone and electronic means of communication with his son would be available to the applicant once removed from Australia.

37    To a considerable extent, the applicant’s submissions invited the Court to engage in a review of the merits of the Tribunal’s decision, which is impermissible. As noted earlier, under s 476A the jurisdiction of the Court to review decisions of the Tribunal is the same as the jurisdiction of the High Court under s 75(v) of the Constitution. As such, review by the Court is confined to jurisdictional error: Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476. To constitute jurisdictional error, the error must comprise a failure to comply with a statutory precondition which must exist in order for the decision-maker to embark on the decision-making process or a failure to comply with a condition which the statute expressly or impliedly requires to be observed in the decision-making process, and the error must ordinarily be material in the sense that compliance with the condition could have resulted in the making of a different decision: Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 (Hossain) at [23], [31] per Kiefel CJ and Gageler and Keane JJ; Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at [45] per Bell, Gageler and Keane JJ. Such errors can include identifying a wrong issue, asking the wrong question, ignoring relevant material, relying on irrelevant material, failing to observe an applicable requirement of procedural fairness or, in certain circumstances, making an erroneous factual finding: Craig v South Australia (1995) 184 CLR 163 at 179; Kirk v Industrial Court (NSW) (2010) 239 CLR 531 at [67]; Hossain at [70] per Edelman J.

38    In so far as the applicant challenges factual findings made by the Tribunal, it can be accepted that factual findings are not immune from judicial review. However, to establish jurisdictional error it is ordinarily necessary to show that the findings were legally unreasonable, for example by being based on illogical or irrational findings or inferences of fact: Minister for Immigration v Eshetu (1999) 197 CLR 611 at 626 per Gleeson CJ and McHugh J and at 657 per Gummow J; Minister for Immigration and Multicultural Affairs; ex parte Applicant S20/2002 [2003] HCA 30; 198 ALR 59 at [5] per Gleeson CJ; Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; 207 ALR 12 at [37]-[38] per Gummow and Hayne JJ; Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 (SZMDS). It must be firmly kept in mind that judicial review does not involve mere merits review; it is not enough for the question of fact to be one on which reasonable minds may differ: SZMDS at [96] and [130] per Crennan and Bell JJ; ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109 at [44].

39    It is also necessary to keep in mind that the Tribunal is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications and, as such, reasons should not be scrutinised "minutely and finely with an eye keenly attuned to the perception of error": see Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 at [46]-[47]; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ. It is also necessary to read the Tribunal's reasons in light of the whole case as it was before the Tribunal, so that the materiality of the issue about which complaint is made can be assessed in the context in which the matter was conducted in the Tribunal: Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 at [1] per Gleeson CJ.

40    In relation to the applicant’s first submissions concerning the Tribunal’s Reasons at [79], in my view too much emphasis is sought to be placed on the word “recently”. As submitted by the Minister, the Tribunal expressly took into account positive aspects of the applicant’s relationship with his son over the course of KS’s life (at [73]-[74]) and, in the passage with which the applicant takes issue, the Tribunal specifically referred to the period in Sri Lanka, which was reasonably early in KS’s life. The Tribunal also expressly took into account the financial support given by the Applicant’s family to EW for KS (at [78]).

41    In relation to the applicant’s second submission concerning the effect of the intervention order, I do not accept the contention that paragraph 13.2(4)(a) of Direction 79 is directed only to periods of absence between a non-citizen and child that are voluntary. The paragraph directs the decision-maker to have regard “the nature and duration of the relationship between the child and the non-citizen” and directs that less weight should generally be given where “there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact)”. Thus, the Tribunal is required to consider the relationship between non-citizen and child taking into account whether there has been less contact, including by reason of a court order.

42    In relation to the applicant’s third submission, that the Tribunal failed to have regard to certain matters, the applicant did not contend that those matters were expressly raised before the Tribunal. Rather, the applicant relied on the principles stated in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 (at [58]) that the Tribunal is required to consider a substantial, clearly articulated argument, including an unarticulated claim that is raised “squarely” on the material before the Tribunal. I do not accept that the Tribunal erred by ignoring the three matters referred to by the applicant. As to the first matter, the Tribunal was conscious that the applicant wished to remain in Australia in order to be close to, and support, his son (see, for example, at [41], [47], [53] and [106]). As to the second matter, it is an obvious fact that if the applicant were to be removed from Australia, his contact with his son would be remote. The Tribunal recognised that contact would need to be by telephone or other electronic means (at [106]). In circumstances where no submissions were made to the Tribunal concerning KS’s loss of connection to his father’s culture, I do not accept that the Tribunal erred in failing to address that matter. As to the third matter, the Tribunal was aware that the applicant’s family has provided financial support to EW and KS in the past (at [41] and [74]). However, in circumstances where no evidence or submissions were directed to the prospect of future financial support for KS, I do not accept that the Tribunal erred in failing to address that matter.

43    In relation to the applicant’s fourth submission, I do not accept that the Tribunal’s factual finding was erroneous, far less that it constituted jurisdictional error. As submitted by the Minister, the terms of the intervention order made on 5 October 2020 by the Magistrates’ Court of Victoria were that the applicant must not “contact or communicate with a protection person [namely EW and KS] by any means unless by phone or facetime to speak to [KS] if he so wishes”. It was open to the Tribunal to find that the applicant would be able to communicate with his son from Sri Lanka by telephone or other electronic means.

44    For those reasons, I do not accept that the Tribunal fell into jurisdictional error by failing to give appropriate weight to the primary consideration of the best interest of the minor child in Australia, or that the Tribunal drew incorrect inferences from the evidence or did not give that consideration proper, genuine and realistic consideration such as to involve jurisdictional error. I therefore dismiss ground 1.

Ground 2

45    By ground 2, the applicant contends that the Tribunal fell into jurisdictional error by giving too much weight to the evidence supporting the primary consideration of the protection of the Australian community.

46    The applicant submitted that the pattern of offending of the applicant, especially after returning to Australia in 2018, was that of a homeless person who was dependent on drugs. Besides one count of trafficking and the significant charge of intentionally exposing emergency worker to risk by driving, the applicant’s offending was limited to property offences, possession offences, traffic offences, and breach of court order offences. The Tribunal stated at [65] that there had been “some trend of increased seriousness” in the offending and at [87] that there was a “significant level of criminality” in the applicant’s offending. The applicant submitted that there was no evidence of a trend of increased seriousness in the applicant’s offending over time and that there was no significant level of criminality in the applicant’s offending. All of the offending was in the context of a physical dependence on methamphetamines and homelessness and, aside from the charge of intentionally exposing emergency worker to risk by driving, none of the offending were crimes involving violence. The applicant acknowledged that the charge of intentionally exposing emergency worker to risk by driving is a very serious offence, but submitted that it was a single event, was not within the pattern of offending of the applicant and was not within a plan or furtherance of a crime from which the applicant had any gain. As a result, it cannot be described as having a significant level of criminality.

47    Ultimately, the applicant’s submissions are directed to two phrases used by the Tribunal to describe the applicant’s offending: that there had been “some trend of increased seriousness” in the offending and that there was a “significant level of criminality” in the applicant’s offending. The applicant has not demonstrated that the Tribunal misunderstood any aspect of the applicant’s criminal history or the matters that the Tribunal was required to take into account in reviewing the decision whether to revoke the cancellation of the applicant’s visa. In those circumstances, the choice of descriptive phrases used by the decision-maker will rarely, if ever, constitute jurisdictional error. Further, it is long-established that it is generally for the decision-maker, and not the court, to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power: Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at 41 (Mason J). Accordingly, in the absence of legal unreasonableness, the weight given to a mandatory consideration by the decision-maker will not give rise to jurisdictional error.

48    In any event, I am not persuaded that the descriptive phrases were used erroneously. The Tribunal used the first phrase (some trend of increased seriousness) in the course of considering the matters set out in paragraph 13.1 of Direction 79 relating to the protection of the Australian community. One of those matters, at paragraph 13.1.1, is the nature and seriousness of the criminal offending. Paragraph 13.1.1(1)(c) directs the decision-maker to have regard to the principle that crimes committed against government representatives or officials due to the position they hold, or in the performance of their duties, are serious. Paragraph 13.1.1(1)(e) directs the decision-maker to have regard to the frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness. In relation to that consideration, the Tribunal stated (at [59]) that the most serious offence of which the applicant had been convicted related to his driving a motor vehicle at a police officer on duty who was signalling for him to stop. The Tribunal concluded that that offence comes into the category of a crime against a government official in the performance of their duties and is therefore to be regarded as serious. There is no error in the Tribunal’s conclusion, at [63], that this was a most serious offence, a conclusion that was supported by the maximum penalty for the offence and the sentencing judge’s remarks. At [65], the Tribunal concluded that:

It is clear to the Tribunal from the record of offences (GD, pp 14–17), which are summarised earlier in these reasons, that Mr Guruge was initially treated leniently by the Courts, which used other penalties such as fines and community-based orders as incentives for him not to re-offend, before resorting to terms of imprisonment, when other non-custodial penalties did not change his conduct. It is also clear that, in the two separate periods of offending, when the Applicant was in Australia in 2012 and when he returned, in the period from early 2018 to May 2020, Mr Guruge has had many appearances before the Courts, charged with some ninety offences. He candidly admitted in his evidence that he had a history of offending. It is also clear, while much of it has revolved around thieving and stealing motor cars to fund his drug addiction, he did admit to trafficking in drugs, and there has been some trend of increased seriousness.

49    The Tribunal’s conclusions are amply supported by the applicant’s record of offences, which is reproduced earlier. The trend of increased seriousness is demonstrated by the number and nature of the offences committed over time, including the most serious offence committed in March 2019 (driving a motor vehicle at a police officer on duty who was signalling for him to stop), as well as the increasing severity of sanctions imposed on the applicant over time for his offending.

50    The Tribunal used the second phrase “significant level of criminality” in the course of considering the matters set out in paragraph 13.3 of Direction 79 relating to the expectations of the Australian community. At [87], the Tribunal concluded:

Mr Guruge has accumulated some 90 offences in two relatively short, and broken, periods of living in Australia, including many robbery offences, some drug trafficking offences and a significant offence relating to endangering a police officer on duty. The Tribunal’s view is that, with the knowledge of this criminal record, the Australian community, in the context of that term in this part of the Direction, would not expect him to hold a visa to remain in Australia. Even considering that drug use drove some of the offending, especially the property offences, there has been a significant level of criminality and despite sanctions imposed by the Courts, the offending did not appreciably abate.

51    Again, the Tribunal’s conclusions are amply supported by the applicant’s record of offences, which is reproduced earlier.

52    For those reasons, I do not accept that the Tribunal fell into jurisdictional error by giving too much weight to the evidence supporting the primary consideration of the protection of the Australian community. I therefore reject ground 2.

Conclusion

53    In conclusion, I reject the grounds of review advanced by the applicant. It follows that the application should be dismissed with costs. The Court is greatly appreciative of the assistance provided by counsel for the applicant who prepared written submissions and appeared pro bono.

Associate:

Dated:    11 June 2021