Federal Court of Australia

RGKY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 750

ORDERS

THE COURT ORDERS THAT:

1.    The decision of the second respondent made on 26 October 2020 be set aside.

2.    The matter be remitted to the second respondent to be heard and determined according to law.

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

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

REASONS FOR JUDGMENT

(REVISED FROM THE TRANSCRIPT)

RARES J:

1    The applicant seeks an order quashing the decision of the Administrative Appeals Tribunal made on 26 October 2020 that refused to revoke the mandatory cancellation, under s 501(3A) of the Migration Act 1958 (Cth), of the applicant’s class TY subclass 444 special category (temporary) visa. The Tribunal was not satisfied, under s 501CA(4)(b)(ii), that there was ‘another reason’ to revoke the cancellation of the visa.

Background

2    The applicant is 23 years of age. On 15 November 2017, the applicant had been sentenced to a term of 12 months’ imprisonment following his conviction for the offences of stalking with intent to cause fear of physical or mental harm and assault occasioning actual bodily harm. Additionally, the applicant received a lesser sentence for the offences of common assault and destroying or damaging property. After serving his sentence and being released into the community, he and his partner, Ms MQ, had a son born in May 2019. On 22 July 2019, the applicant engaged in further offending outside the home of his mother. His two month old son was present inside that home. The applicant was remanded in custody in late July 2019 and has been in custody or immigration detention ever since.

3    On 20 September 2019, a delegate of the Minister cancelled the applicant’s visa pursuant to s 501(3A) and issued him with an invitation under s 501CA(3)(b) to make representations to the Minister seeking revocation of the cancellation. On 30 July 2020, another delegate of the Minister refused to revoke the cancellation of the applicant’s visa. On 5 August 2020, he sought review of that decision in the Tribunal.

4    Like many cases now coming before the Court, the accident of the applicant’s birth in New Zealand five months before he was brought to Australia, where he has lived ever since with the whole of his extensive family without having sought to obtain citizenship, has meant that he now is in the position where, unless able to satisfy the Minister that there is ‘another reason’ why the cancellation of his visa should be revoked, he will be removed from Australia and his family forever.

The grounds of the application

5    The applicant relied on two grounds for relief, namely that the Tribunal made a jurisdictional error because it had failed to give proper, genuine and realistic consideration to, first, the best interests of minor children individually in compliance with Direction 79 made by the Minister under s 499 of the Act entitled “Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA”, and, secondly, the character evidence relied on by the applicant in support of his contention that his character had changed since his loss of liberty after his last offending.

The legislative context

6    The Tribunal had jurisdiction, pursuant to s 500(1)(ba) of the Act, to review the decision of the delegate under s 501CA(4) not to revoke the cancellation of the applicant’s visa. This Court has jurisdiction pursuant to s 476A(1)(b) in relation to a decision of the Tribunal on a review under s 500.

7    The Tribunal had to comply with Direction 79 when performing its functions and exercising its powers in the review under the Act by force of by s 499(1) and (2A). Relevantly, cl 13.2 of Direction 79 provides:

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.

…

(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;

…

(emphasis added)

The decision of the Tribunal

8    It was common ground before the Tribunal that the applicant failed the character test by reason of his substantial criminal record. The substantive question before the Tribunal was whether there was ‘another reason’ why the original decision to cancel the visa should be revoked under s 501CA(4)(b)(ii) of the Act.

9    The Tribunal acknowledged that the applicant had always thought he was an Australian citizen. At the time of its decision, he had three younger brothers aged 19, 16, and 13, and a younger sister aged 14, whose citizenship status was not before the Tribunal. Another of the applicant’s younger sisters died in August 2012 when he was 14 years of age. He was close to her, as the evidence of his foster parents, who were his grandmother and grandfather, revealed. The applicant had been placed into foster care with them at the age of seven because of his mother’s alcoholism. His father had not come to Australia when his mother returned here when the applicant was five months old, and he had no apparent relationship with his father. The applicant has 11 aunts and uncles, four nieces and nephews, and 36 cousins, and all of those relatives, to his knowledge, live in Australia. The material before the Tribunal did not reveal that he had any family or other connection to New Zealand other than, first, his birth there, and, secondly, his Maori ancestry and heritage with which he has sought to connect over the last 10 years.

10    The Tribunal acknowledged that it was fair to say that the applicant had a deprived childhood and that his parents (scil: his mother and step-father) drank alcohol regularly to excess and beat the applicant as a child.

11    The Tribunal found that, in 2015 and 2016, the applicant worked in the construction industry, and in 2017 and 2018 as a demolition tradesperson for at least some full-time periods and had a white card permitting him to work on construction sites.

12    It found that sometime during 2017 or 2018, the applicant and Ms MQ became partners.

13    The Tribunal found that the applicant had a history of criminal offending that commenced when he was about 16 years old, involving the commission of about 40 offences over the succeeding six years. The Tribunal noted that the onset of the applicant’s offending conduct coincided with him commencing to use alcohol, cannabis, and methamphetamine.

14    The Tribunal took note, in particular, of three juvenile offences involving common assault, assault occasioning actual bodily harm and using an offensive weapon with intent to commit an indictable offence. It found that those offences were of significance in light of his later offences against his partner and mother.

15    The Tribunal noted that the convictions on 15 November 2017 were for offences that occurred on 19 June 2017 of stalk and intimidate with intent to cause fear of physical or mental harm, assault occasioning actual bodily harm, two counts of common assault, and one of destroying or damaging property. He was sentenced to 12 months’ imprisonment on the stalking and assault occasioning actual bodily harm counts, three months’ imprisonment on each of the other two assault counts and was placed on a two year good behaviour bond for the property damage offence. The sentencing magistrate found special circumstances and imposed a non-parole period of four months. The Tribunal found that the circumstances of those offences were largely unknown because documents relating to their commission had not been located. It agreed with the description of the sentencing magistrate that it was “reprehensible” that the applicant had committed the more serious of those offences against his partner, Ms MQ, who was then 17 years of age. The sentence for those offences formed the basis of the mandatory cancellation of the visa.

16    On 22 November 2018, the applicant was convicted of an offence of dishonestly obtaining property by deception and given a 12 month community correction order. It was not clear when that offending occurred.

17    On 9 May 2019, the applicant was convicted of a series of offences that he had committed on 31 August 2018, namely, common assault, affray, resist arrest, contravene a condition of an apprehended violence order (domestic) and fail to appear in accordance with a bail acknowledgment. It did not accept the contrary evidence that each of the applicant and Ms MQ gave to it about that offending. The Tribunal found that one circumstance of the offending was that the applicant had punched Ms MQ in the stomach. Significantly in relation to the first ground of review, concerning the best interests of the applicant’s child, the Tribunal found:

that Ms MQ’s evidence was likely to have been affected by her desire to paint things better for RGKY so that her main focus of her son having a relationship with his father could be advanced.

(emphasis added)

18    It placed considerable weight on a sentencing assessment report by a community corrections officer of Corrective Services NSW (the pre-sentence report) before the magistrate in relation to those offences. That recorded that the officer considered that the applicant had failed to genuinely demonstrate an understanding of the impact of his actions on his partner and other family members, and assessed his likelihood of reoffending as being “T2/Medium/High risk of reoffending”.

19    When sentencing, the magistrate noted that the applicant’s grandfather (WW), who was a qualified social worker, believed that the applicant needed counselling, anger management, drug and alcohol cessation and support, and meaningful employment to provide for his young family. Her Honour agreed with those views and warned the applicant about the seriousness of his offences, stating:

I accept that your girlfriend loves you and doesn’t want to see you in goal but she is also about to be a mother, and she will want that child and herself to be safe and protected, do you understand?

20    The Tribunal noted that the applicant had told her Honour that he did understand. She imposed a 12 month intensive correction order, explaining to him that it was not a good behaviour bond, and that if he breached the order, he would go before the Parole Board of New South Wales, and that it would decide what was to happen to him.

21    On 9 and 10 July 2019, the applicant stole some goods from a motor vehicle.

22    On 22 July 2019, the applicant committed offences of stalking and intimidating with intent to cause fear or physical or mental harm in relation to his mother, and of maliciously damaging property valued at under $2,000. He was arrested and remanded in custody in late July 2019.

23    On 13 August 2019, the Parole Board replaced the intensive correction order with a term of just over nine months’ imprisonment.

24    On 10 October 2019, the applicant was convicted of the six offences that occurred on 9, 10 and 22 July 2019. He was sentenced to two months’ imprisonment for the offences against his mother, a further month for the offence of obtaining property by deception and received lesser sentences on the other counts.

25    The Tribunal found important the offences involving the applicant’s mother and son. It found that he had contacted his mother with a view to collecting his young son and then attended at his mother’s house with his partner. Outside the house, he made a number of threats, including assertions that he would kill his mother, and yelled at her to go inside and get the baby. He did not himself enter the premises, because a screen door blocked entry. The Tribunal noted that, in giving evidence, the applicant gave a different version of the events of 22 July 2019 to the facts on which he had entered guilty pleas. He acknowledged in his evidence to the Tribunal that he knew that he had “stuffed up big time”. The Tribunal did not accept the more recent version of the facts presented by the applicant. The Tribunal noted that the applicant had put much of his offending down to being taken away from his parents at an early age and his troubled upbringing in foster care.

26    Importantly, the Tribunal noted that he had told it that having a child had changed him. He also said that he had been drug free while in custody and intended to remain so when released. Importantly for the second ground of review, concerning the applicant’s change of character after his offending on 22 July 2019, the Tribunal recorded:

34.     … He said that he had learnt his lesson from being incarcerated which has taught him how much he misses his family and his son. He referred to the courses he did after his first period of incarceration as being something that would assist him in not taking up methamphetamine abuse again. He says he has full time work available to him with his cousin upon his release. That evidence about his prospective employment when released was corroborated. I accept it.

35.    A number of witnesses called to give evidence on behalf of RGKY expressed the view that RGKY had ‘changed’ and that the birth of his son had brought that about. They expressed the opinion that RGKY would be a different person if released from detention and permitted to stay in Australia. Much of this evidence displayed the kind of support that RGKY would have in the local community if he were permitted to remain in Australia.

36.    Mr WW and his wife Ms JW who are RGKY’s grandparents gave evidence about their respective opinions about RGKY’s likelihood of re-offending especially having regard to the arrival of his son. Mr JW frankly conceded that his evidence might be biased by reason of his affection for RGKY. Mr WW gave evidence about the views of RGKY’s brothers and sisters who he said were missing him and are distressed at the thought of their brother being removed from Australia.

(emphasis added)

27    The Tribunal then reviewed the principles it derived from Direction 79. It discussed the first mandatory primary consideration in cl 13.1 of Direction 79 of the protection of the Australian community from criminal or other serious conduct. The Tribunal noted that the applicant’s offending involved violence against his partner on two separate occasions within a period of 14 months and against his mother about a year after the last of the two offences involving his partner. It found that all that offending was objectively very serious because not only did each involve violence against a person but it was also against women. It found that the offence in 2018 of punching his partner in the stomach, for which the maximum penalty was five years imprisonment, was self-evidently serious. It found the second offence against Ms MQ had resulted in a sentence of 12 months’ imprisonment, which indicated that it was very serious. The Tribunal noted that there was a “periodicity associated with the offences” against the applicant’s partner and mother, finding that those had occurred roughly a year apart but that there was no pattern of escalating seriousness. Rather, it found that each offence appeared to be very serious and that his offending had changed from crimes involving drugs or property, towards violence against persons.

28    It also found that the applicant’s contravention of the conditions of the intensive correction order, on which he had been subsequently released, was serious. It noted that he had been sentenced for resisting a police officer in the execution of his duty, which was objectively serious, and had also attracted a 12 months intensive correction order as part of the aggregate sentence imposed. The Tribunal noted that the applicant had committed property offences on a regular basis over the preceding six years but did not give much weight to his earlier offending when a juvenile.

29    The Tribunal found that his offending conduct demonstrated a continuing disregard for the law and that his criminal record was very serious. It found that the nature of the harm, should any of his offending be repeated, would be at least as serious as the harm caused to date. It found that the applicant lacked acceptance of responsibility for his offending, which was a serious factor in assessing the likelihood of his reoffending. It noted the pre-sentence report prepared for the Court that entered his convictions on 9 May 2019 referred to the applicant acknowledging that if his behaviour did not change, he would have to face the consequences, but that his offending against his mother occurred after his sentences on 9 May 2019. The Tribunal noted that the pre-sentence report recorded that the applicant failed generally to demonstrate an understanding of the impact of his actions on the victim and the other family member. The Tribunal found that the applicant’s denials of wrongdoing concerning punching his partner and his culpability involving the offence against his mother demonstrated a lack of any genuine remorse, congruent with the findings in the pre-sentence report and his lack of any genuine understanding about his wrongdoing and acceptance of responsibility. The Tribunal then found:

69.    I accept that RGKY says that it his intention not to re-offend once in the community. I also accept that it is his intention to try to remain ‘drug free’ once released. And I accept that the fact of his young son is some motivation to keep him away from offending as is the fact of the deterrent effect of being imprisoned and placed in detention once more. I accept that he has an intention to participate in rehabilitation courses.

70.    The difficulty with relying on any of his stated intentions singularly or together as indicating some lower likelihood of re-offending than what was assessed in the pre-sentence report, is that only about six weeks after his son was born he was re-offending both in terms of property offences and an offence of personal violence against his mother. By then he had already had the experience of about four months in prison because of his offences in August 2018. He had also been warned by the Magistrate that things were serious. He was alerted to the fact that his continued re-offending would have consequences. He was afforded the opportunity to participate in a rehabilitation programme during the course of the intensive correction order. The only matter that is not known, because it simply cannot be tested, is his ability to remain drug free if he were released into the community, but again he had the opportunity to go down that road on 9 May 2019 when he received the 12 month intensive correction order. And he did not take it. It is for these reasons that I am unable to place any significant reliance on what RGKY says about what he intends to do in the future.

71.    Some reliance was placed on the fact that if released into the community RGKY would have the support of a strong network of friends and family led no doubt by his grandfather and grandmother. I do not doubt the motivations of those people, but the simple fact remains that that network did not assist much in the past.

(emphasis added)

30    The Tribunal recorded the applicant’s submission that because he was now aware that he would be deported if he offended again, there was a significant deterrent to such reoffending. But, it was not impressed with that argument on the basis that the applicant’s sentencing history indicated that the imposition of orders falling short of imprisonment had not posed a real deterrent to him committing further offences for which he subsequently went to jail. It found that, having regard to the record and nature of his offending and, importantly, the opinion expressed in the pre-sentence report, there was a real likelihood that the applicant would reoffend again in the future. Accordingly, it considered that the first mandatory primary consideration weighed heavily against revocation of the cancellation of the visa.

31    The Tribunal then turned to consider the second mandatory primary consideration in cl 13.2 of Direction 79 of the best interests of minor children in Australia who would be affected by the decision. Those children were, first, the applicant’s son, secondly, his two younger brothers aged 16 and 13 and sister (the minor siblings), and, thirdly, a number his nephews and nieces from his large extended family. It observed that there was not a great deal of evidence about any of the minor children other than the applicant’s son. The Tribunal stated that the consideration in cl 13.2(4) was “not concerned with RGKY’s interests at all. Rather, it is directed towards the interests of minor children, and in fact… their best interests” and referred to the considerations that cl 13.2(4) required it to take into account. The Tribunal found:

78.    RGKY had about six or seven weeks’ interaction with his son after he was born and before RGKY commenced his most recent period of imprisonment which was followed by him being placed in detention. There has been a relatively short period of day in day out meaningful contact with his son.

79.     Before March this year, when restrictions were imposed due to the pandemic he was visited by his son, about once a week and sometimes twice a week. During those visits he played with his son and attended to the types of things fathers often do with babies such as changing nappies, feeding and comforting the baby and so on. He has since then spoken to him every day on telephone or by using a social media platform such as FaceTime. Although this contact is meaningful it would be wrong to overstate it especially when measured against what might be considered to be the more optimal or ideal relationship between father and son involving as it does daily contact and daily physical involvement in the child’s life.

80.     I accept the statements of RGKY, his grandfather and grandmother, Ms MQ and others, about RGKY’s devotion to his son both in the past and in all likelihood into the future. I accept his and their desire that RGKY be part of his son’s life as he grows up. All of those things can only be something that would be positive in a child’s upbringing and therefore in the best interests of the child.

81.     Those things need to be measured very carefully given RGKY’s criminal history and, in particular, the fact that that history involves offending against his son’s mother and his own mother when his son was present and in her care. I am unable to find that RGKY would, on balance, be likely to play a positive parental role in his son’s life in the future given those matters and my assessment concerning the likelihood of him re-offending. Moreover, should the kinds of offending in the past be repeated in the future I consider that will invariably have a negative impact on RGKY’s son because of its likely psychological impact upon the child. It is to be remembered that RGKY’s most recent offending against his mother was in the presence of his child. These are matters that cause me to moderate the weight that I give to this consideration.

82.     As is likely to be the case, separation from his father should RGKY return to New Zealand will necessarily have something of a negative impact on RGKY’s son. I am unable to make any assessment at all as to the magnitude of that impact because of the dearth of information that was presented. So much is self-evident, but contact will be able to be maintained in other ways such as by phone and by resort to social media platforms as has been done since March this year so that the effect upon him will be mitigated. RGKY’s son is obviously too young to express his preference about RGKY remaining in Australia. His son has his mother who is able to fulfil a parental role.

83.     So far as RGKY’s younger brothers and sister are concerned, I accept they would be quite upset about RGKY being required to return to New Zealand even though they did not give direct evidence about that. I do not know a great deal about their present relationship with RGKY or even their relationship in his adult years. The relationship is not parental. It can be given that in their youth the children were close by reason of their plight in foster care and the fact that RGKY assumed something of a paternal role in their upbringing. That obviously did not continue in recent years because of his incarceration and detention. Again, his potential future role in their upbringing needs to be approached cautiously because of his offence record and his likelihood of re-offending. That is another reason why I have given consideration of their best interests less weight. Like with his own child he will be able to maintain contact with them by phone and social media in the event of non-revocation. RGKY’s relationship with them is not parental so that I should give less weight to this consideration in their cases because that is what the Direction requires.

(emphasis added)

32    The Tribunal said that it was also “unable to give any meaningful consideration” to the best interests of the applicant’s nieces and nephews because it knew “so little about their situations”. But, it gave some weight to their position because of the relationship they had with the applicant. It found that the best interests of the applicant’s child weighed moderately in favour of revocation and the best interests of his minor siblings and minor nieces and nephews weighed slightly in favour of revocation.

33    The Tribunal found that the third mandatory primary consideration in cl 13.3 of Direction 79 of the expectations of the Australian community weighed in favour of the cancellation of the visa not being revoked by reason of the applicant’s criminal record and the seriousness of his offending. However, because of the applicant’s having been in Australia since early childhood and the consequences of non-revocation “for his minor children” (presumably a reference to his son, minor siblings and minor nieces and nephews collectively) and immediate family, it gave moderate weight to that consideration.

34    In weighing the other considerations in cl 13.4 of Direction 79, the Tribunal also noted that there was evidence about the applicant’s considerable ties to the community by reference to his partner, child, siblings, grandparents, nieces, nephews and 36 cousins, and the number of his friends who gave evidence. It found that many of those ties, “especially those with his son and grandparents, are obviously strong” and that this factor weighed moderately in favour of revocation.

35    It noted that, while the applicant would be able to access facilities to rehabilitate himself in New Zealand, he would not have the support of his family to assist him in doing so and thus gave that consideration more weight than it would otherwise have done. It accepted that he did not have any significant family ties or network of friends in New Zealand and that would create “some difficulty for him in adjusting to life in New Zealand”, but that those would not be of long-term duration. The Tribunal weighed that factor moderately in favour of revocation.

36    It gave some weight to the impact of not revoking the decision on the applicant’s partner “even though this was not relied on at all by [the applicant]”. The Tribunal noted that the Minister had submitted that it could give weight to that consideration given his partner’s desire to have her son brought up with the applicant being in his life. It found that in this sense, the decision not to revoke would have an impact on her, although it also found that he would be able to be in his son’s life “to the extent that telephones and social media permit”, and so gave that factor slight weight.

37    Ultimately, the Tribunal found that, because the protection of the Australian community weighed heavily, and the expectations of the Australian community weighed moderately, against revocation, they prevailed over “the best interests of [the applicant’s child] that weigh moderately in favour of revocation” of his visa.

38    Accordingly, the Tribunal was unable to find there was ‘another reason’, under s 501CA(4)(b)(ii), why the mandatory cancellation of the applicant’s visa should be revoked and affirmed the delegate’s decision.

The Minister’s submissions

39    The Minister argued that the Tribunal’s reasons demonstrated that it had engaged in an active intellectual process and had weighed the material before it for itself. He noted that there was no transcript of the two-day hearing before the Tribunal in evidence before me. He contended that the Tribunal had dealt sufficiently with the applicant’s claims and arguments and that it had given adequate reasons. The Minister pointed to the fact that the applicant was legally represented before the Tribunal and had made submissions within his statement of facts, issues and contentions that stated, under the heading “Interest of minor children”:

27.    The applicant has a 16 months old son. He used to live with his son and partner before going into custody and immigration detention. The applicant has a close relationship with his son and is extremely concerned for his wellbeing should he be removed from Australia.

28.    The applicant contends that his removal from Australia will have a “negative impact” upon his minor child and his other nieces and nephews and cousins ages of whom are not known at the time of writing.

29.     It is respectfully submitted the best interest of the applicant’s minor child substantially weighs in favour of revoking the visa cancellation.

(citations omitted)

40    The Minister submitted that the Tribunal had explained, in 11 paragraphs of its reasons, how it had assessed the best interests of the applicant’s son, minor siblings and minor nieces and nephews. He argued that it had made findings as to the likelihood of his reoffending which it took into account in considering the best interests of the minor children. He contended that the Tribunal explained in [69]–[71] why it did not accept that the applicant’s stated intention that he would not reoffend if released into the community. The Minister submitted that the Tribunal’s reference in [71] of its reasons to the evidence it had noted at [35]–[36] could be taken as acknowledging the evidence of the applicant’s partner, family and friends that he had changed in his most recent period in custody following the birth of his son. However, the Minister accepted that the Tribunal had made no express findings about any of those persons’ evidence on this claim in coming to its conclusion that the applicant had a real likelihood of reoffending in the future.

41    The Minister argued that the Tribunal had considered sufficiently the best interests of the applicant’s son and other minor children were the cancellation of his visa not revoked. He contended that the Tribunal’s statement in [82], that it was unable to make any assessment “at all as to the magnitude of that impact because of the dearth of information” presented, had to be understood by reading the Tribunal’s reasons as a whole. The Minister emphasised the fact that it had already determined in [81] that it was unable to find that the applicant would, on balance, be likely to play a positive parental role in his son’s life given his previous criminal history, including the offending against his partner and his own mother “when his son was present and in her care”, and the likelihood of his reoffending (as found in [69]–[71]).

42    The Minister submitted that the Tribunal’s reasons in [83] revealed a sufficient active intellectual process to explain its conclusion that, having taken into account the relationship the applicant had with his minor siblings, it was entitled to form the view that his role, in their upbringing, had to be approached cautiously and with regard to his likelihood of reoffending.

43    The Minister argued that there was no medical or other evidence identifying what the magnitude would be of the impact on his son or minor siblings if the visa were not reinstated. He contended that no obvious enquiry had been overlooked which the Tribunal could have made during the course of its hearing or processes and, indeed, that the absence of any transcript of the hearing made it impossible to say whether there had been anything overlooked. He submitted that the impact of the applicant’s removal from Australia on the future life of his son and minor siblings was an obvious matter about which there was little, if anything, more that the Tribunal needed to say.

44    The Minister argued, albeit accepting their significance, that the Tribunal was not obliged to revisit (after [35]–[36] of its reasons) or make findings about the evidence of the witnesses as to the change in the applicant’s character in determining his risk of reoffending. He contended that the mere fact that an administrative decision-maker has not referred to every piece of evidence was not a reason to find that the Tribunal had in fact overlooked this evidence, since it had referred to that evidence both in [35]–[36] and in [71] immediately after dealing with the applicant’s own assertion of his reformation of character.

Consideration

Ground 1

45    In a number of recent cases, the Full Court has identified the necessity for administrative decision-makers, including the Minister personally, to engage in an active intellectual process in arriving at the decision required by the statute. In Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352 at 361 [35], Griffiths, White and Bromwich JJ said (see also Webb v Minister for Home Affairs [2020] FCA 831 at [18] and [20] per Anastassiou J):

As we will explain below, we consider that the evaluative judgment which the Court must undertake in assessing whether the Minister has properly considered the merits of the cases before him requires focus on the question of whether the applicants have established that the Minister did not engage in an active intellectual process in determining whether or not to exercise his power under s 501(3) of the Act.

46    In CAR15 v Minister for Immigration and Border Protection (2019) 272 FCR 131 at 149–150 [76], Allsop CJ, Kenny and Snaden JJ said:

It is beyond dispute that the appellant contended that relocation to Lagos was not reasonably open to her because, if she went there, she would be homeless. That contention was sufficiently material that the Tribunal was obliged to consider it: Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088 at 1092; 197 ALR 389 at 394 (Gummow and Callinan JJ, with whom Hayne J agreed); NAIZ at [22] (Branson J, with whom North J agreed; RD Nicholson J dissenting); Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531 at 537-538 (Rangiah J, with whom Reeves J agreed), 546-547 (Colvin J); Hay v Minister for Home Affairs [2018] FCAFC 149 at [13] (Colvin J, with whom White and Moshinsky JJ agreed); Minister for Home Affairs v Buadromo (2018) 267 FCR 320 at 331-332 (Besanko, Barker and Bromwich JJ). Doing so did not require that it record, in explicit terms, a finding one way or the other about whether or not the appellant would be homeless if returned to Lagos; but it did require that the Tribunal undertake an “active intellectual process directed at that claim”: Tickner v Chapman (1995) 57 FCR 451 at 462 (Black CJ), 476-477 (Burchett J), 495-496 (Kiefel J); Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352 (Carrascalao) at 364 (Griffiths, White and Bromwich JJ); Lafu v Minister for Immigration and Citizenship (2009) 112 ALD 1 at 7 (Lindgren, Rares and Foster JJ); Telstra Corporation Ltd v Australian Competition and Consumer Commission (2008) 176 FCR 153 at 181-182 (Rares J). A conclusion that the Tribunal has not engaged in an active intellectual process vis-à-vis a contention advanced before it is one that this court will not lightly make: Carrascalao at 364 (Griffiths, White and Bromwich JJ).

(emphasis added)

47    In addition, as Allsop CJ, with whom Markovic and Steward JJ agreed, said in Hands v Minister for Immigration and Border Protection (2019) 267 FCR 628 at 630 [3] (in a passage applied in Minister for Home Affairs v Omar (2019) 272 FCR 589 at 607 [37] per Allsop CJ, Bromberg, Robertson, Griffiths and Perry JJ):

… it can be said that cases under s 501 and the question of the consequences of a failure to pass the character test not infrequently raise important questions about the exercise of Executive power. Among the reasons for this importance are the human consequences removal from Australia can bring about. Public power, the source of which is in statute, must conform to the requirements of its statutory source and to the limitations imposed by the requirement of legality. Legality in this context takes its form and shape from the terms, scope and policy of the statute and fundamental values anchored in the common law: Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 at 5 [9]; Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 357 ALR 408 at [59]. The consequences of these considerations are that where decisions might have devastating consequences visited upon people, the obligation of real consideration of the circumstances of the people affected must be approached confronting what is being done to people. This obligation and the expression of its performance is not a place for decisional checklists or formulaic expression. Mechanical formulaic expression and pre-digested shorthand expressions may hide a lack of the necessary reflection upon the whole consideration of the human consequences involved. Genuine consideration of the human consequences demands honest confrontation of what is being done to people. Such considerations do not detract from, indeed they reinforce, the recognition, in an assessment of legality, that those entrusted with such responsibility be given the freedom of lawful decision-making required by Parliament.

(emphasis added)

48    The Tribunal found in [81] that a determinative factor for moderating the weight it would give to the best interests of the applicant’s son was its inability to find that the applicant would be likely to play “a positive parental role in his son’s life in the future” given his criminal history and risk of reoffending, including his offending against his partner and mother when his son “was present and in [his mother’s] care”. It repeated the latter factor at the end of [81]. It then said of the separation of the applicant from his son, were the visa not reinstated, that it was “unable to make any assessment at all as to the magnitude of that impact because of the dearth of information that was presented”, and that the son had a mother who would be able to fulfil a parental role.

49    In my opinion, the Tribunal failed to engage in an active intellectual process in determining what the best interests of the applicant’s son were and what weight ought be given to them. The Tribunal noted in [79] the current relationship between the applicant and his son following his being taken into custody was less than “the more optimal or ideal relationship between father and son involving as it does daily contact and daily physical involvement in the child’s life”. It is impossible to understand how, in that context, the Tribunal asserted that it was “unable to make any assessment at all” as to the magnitude of the loss of that connection, which is an ordinary incident of the relationship between a parent and a child.

50    Nor does the fact that one parent remains in contact from another location with the child deal with the potential impact on the best interests of the child if he or she is not able to live with and grow up in the household of both parents who, as here, are in a relationship in which that can occur.

51    In the present case, it found that since the restrictions on physical contact due to the COVID-19 pandemic, the applicant spoke to his son every day on the phone or by social media. The Tribunal also had recognised at an earlier point in its reasons (at [25]) that Ms MQ had such a significant desire that the cancellation of the applicant’s be revoked that her:

evidence was likely to have been affected by her desire to paint things better for the applicant, so that her main focus of her son having a relationship with his father could be advanced.

(emphasis added)

52    That evidence was supported by the other written material, including from his relatives and from the applicant’s partner, in which she said that she knew he was:

a great father and I would hate for my son to have to grow up with a father. If [the applicant] was to get deported it would be my son’s future being jeopardised as most of you know growing up without a father can affect the way a young boy develops mentally and emotionally.

53    In that character reference, Ms MQ recognised that the nature of their early relationship had been “toxic”, but she stated that their son “deserves to have his father”, and that in the year he had been away from the son, the applicant “has changed dramatically, the choices and decisions that he makes are coming from a different state of mind”. She said that she believed that if the applicant were to be released into society, he would:

be a completely different person as he wants to be the best father to his son he can. I have known him to be a hard worker and good caring person and I want my son to grow up around that.

54    The applicant’s clearly articulated claim of a change of character after he went into custody following the birth of his son is the basis of the second ground of review in this matter. But, its consideration was also relevant to the Tribunal’s finding in [81] as to the risk of the applicant’s reoffending. As I have noted, the Minister accepted that the Tribunal had not referred expressly to or dealt with that claim in its reasons other than to recognise that the applicant, his witnesses and other evidence raised his change of character.

55    The reasons of an administrative decision-maker must not be construed minutely and finely, with an eye keenly attuned to error. They must be read fairly as a whole: see Plaintiff M64/2015 v Minister of Immigration and Border Protection (2015) 258 CLR 173 at 195–196 [59]–[60] per French CJ, Bell, Keene and Gordon JJ, citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ.

56    However, I am of opinion that the Tribunal’s statement that it was unable to make any assessment at all as to the magnitude of the impact of separation of the applicant from his son that would be caused by his removal to New Zealand beyond saying anything more than that it would have “something of a negative impact” on the son, eschewed making any finding of exactly what the best interests of the child would be. That was a material jurisdictional error. Direction 79 required the Tribunal to make a determination of what the best interests of the child were, as French CJ, Kiefel, Bell and Keane JJ made plain in Uelese v Minister for Immigration (2015) 256 CLR 203 at 233 [64] in relation to an earlier version of Direction 79. They held that a review conducted by the Tribunal under s 500 of the Act was inquisitorial, not adversarial (256 CLR at 221 [62]–[63]). They said of an analogue of cl 13.2(1):

Whether or not the appellant sought to make the interests of those children a positive aspect of his case, the Tribunal was obliged by s 499 of the Act and the terms of Direction 55 to take into account the interests of any minor children of which it was aware in determining his application for review. By virtue of s 499 and Direction 55, one of the primary considerations for the Tribunal concerned the interests of children who were not themselves represented in the proceedings before the Tribunal. The requirement of cl 9.3 of Direction 55 to consider the best interests of minor children in Australia affected by the decision is imposed on decision-makers in terms which are not dependent on whether an applicant for review argues that those interests are relevant as part of his or her “case”.

(emphasis added)

57    The Tribunal conducted a two-day hearing. For it to say that there was a “dearth of information that was presented” demonstrates that it fell into error in failing to address the task mandated in Direction 79. That is because, as French CJ, Kiefel, Bell and Keane JJ held in Uelese 256 CLR at 222 [65]–[66]:

… The Minister argued that the paucity of evidence about the appellant’s two youngest children in consequence of the way the appellant’s case was presented meant that the Tribunal could not be satisfied one way or the other as to where the best interests of the appellant’s children lay. This aspect of the Minister’s argument must also be rejected.

It is apparent that the paucity of evidence referred to in the last sentence of the passage from the reasons of the Tribunal cited above was not due to the unavailability of material evidence. The Tribunal not only declined to act upon the information which was put before it by Ms Fatai, but it also failed to make even the most cursory inquiry to follow up on this information…

(emphasis added)

58    The task for the Tribunal here was to make a determination of what was in the best interests of each of the son, the minor siblings and other children. The Tribunal had before it evidence that the applicant wished to have a normal parental relationship with his son, involving day-to-day contact, both physical and emotional, together with the ordinary incidents of parental upbringing of a child in a household with the other parent (Ms MQ), and the ability to support the child and his partner. It also had the evidence of Ms MQ, which it had regarded as “biased” because she said that she wished the applicant to have just such a relationship.

59    Ordinarily, the best interests of a child are to have two loving parents who wish to care for and look after the child in the family home. While that is a matter that, in the evaluation of any particular case, is a factual finding, the Tribunal was obliged to engage in some real and active intellectual process that considered and made a finding about what would be the best interests of the child if he was deprived permanently of one of his two parents. As Allsop CJ explained in Hands 267 FCR at 630 [3], the consequences of a decision, such as the refusal to revoke a cancellation of a visa, can have devastating consequences on people such as the applicant and his family.

60    The Tribunal had to engage in an active intellectual process of consideration of the evidence before it, and if there really were “a dearth of information presented”, it would have had to make enquiries about the best interests of the children, particularly the son: Uelese 256 CLR at 222 [66]. However, the Tribunal’s assertion that there was “a dearth of information” presented ignored the applicant’s, Ms MQ’s and the other evidence, to which I have referred, so that it did not carry out its function of review. It had to explain why simply having some kind of remote contact by phone or social media, as had happened up to that date, would be in the son’s best interests when the witnesses told it that this was not the case. The Tribunal appeared to have required some information to be presented to make up for what it found was “a dearth”, so that it could in fact make an assessment, being its statutory task. In my opinion, this error was both material and fundamental to the way in which the Tribunal failed to discharge its role: Uelese 256 CLR at 221–222 [62]–[66]. Tamberlin, Kiefel and Emmett JJ held in Sebastian v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 31 at [11] and [15] that determining the best interests of a child, ordinarily, requires the reasons of the decision-maker to disclose an appreciation of what those interests are and what they called for, including the child’s human development, health, happiness, social and educational needs.

61    Similarly, the Tribunal’s treatment of the minor siblings’ position was problematic, although it is not necessary for me to make ultimate findings about that. In the written material before it, two of the people writing in support of the revocation of the cancellation noted that the applicant had been through a traumatic time with a neglectful mother who had harmed him physically and mentally as a young child and:

left him to care for his little brothers and sisters whilst she drank and recovered and he did a damn good job they always went off to school together happy, well fed and clean.

(emphasis added)

62    That suggests that the relationship, which the Tribunal acknowledged involved him assuming “something of a paternal role in their upbringing”, was likely to have comprised a real and significant part in their lives. Yet, the Tribunal found only that they “would be quite upset” about the applicant being returned to New Zealand and that it did “not know a great deal about their present relationship with” the applicant. In this regard, it did not discuss or make findings about the evidence of Mr WW, the applicant’s grandfather, summarised at [36], that the applicant’s brothers and sisters said that they missed him and were distressed at the thought of his removal. Once again, it was necessary for the Tribunal to make a determination of what was in their, and the minor nieces’ and nephews’, best interests as cl 13.2(1) of Direction 79 required, but it did not do so in accordance with law: Uelese 256 CLR 203.

Ground 2

63    The second ground of review was that the Tribunal failed to take into account and address the significance of the claim that the applicant’s character had reformed after he had been taken into custody following his last offending on 22 July 2019. The Tribunal recorded (at [34]) that the applicant had said that he had learnt his lesson from being incarcerated “which has taught him how much he misses his family and his son”. Clearly, the only time in which that lesson could have been learned was during the last of his incarcerations after the birth of his son.

64    The extensive documentary and witness’ character evidence recorded, as the Tribunal summarised in [35], that those persons, some at least of whom also gave evidence (such as Ms MQ and the applicant’s grandparents), thought that the applicant “would be a different person if released from detention and permitted to stay in Australia”. Thus, the Tribunal had, as the Minister accepted, a significant, clearly articulated, claim before it based on substantive evidence that, after his last incarceration, the applicant’s character had changed. Of course, the Tribunal was entitled to have regard his previous incarcerations, warnings, chances and the like in forming its view that he would be likely to reoffend. However, there is nothing in the Tribunal’s reasoning that discusses that particular claim or the evidence that the Tribunal summarised at [35]–[36] beyond its statement in [70] that it could not place any significant reliance on what the applicant himself had said about his future intentions. Such a finding may have been open to the Tribunal, but only after it had done what its reasons did not reveal, namely to assess the written and oral evidence of those who knew the applicant, including the passages that I have quoted from Ms MQ’s letter in support at [52]–[53], that revealed that, whatever else one might have thought about him, there was a real foundation for his claim to have changed significantly as a result of his incarceration and the impact that he felt from being separated from his newborn son and his partner.

65    The Minister correctly acknowledged that the claim that the applicant had changed while in custody and detention, following his arrest in late July 2019, was a significant one that the Tribunal had not addressed expressly.

66    The failure to consider a substantial or significant, clearly articulated, claim actually made in representations under s 501CA(3)(b) and (4) that, if accepted, could be ‘another reason’ to revoke the cancellation of a visa under s 501CA(4)(b)(ii) may constitute a jurisdictional error because the Minister (or the Tribunal standing in his shoes in a review under s 500) has not carried out its statutory task of considering those representations in determining whether there is ‘another reason’ to revoke the cancellation of the visa: Omar 272 FCR at 607–608 [39]–[40]; Guclukol v Minister for Home Affairs [2020] FCAFC 148 at [50] per Katzmann, O’Callaghan and Derrington JJ.

67    Here, the applicant articulated an objectively significant claim that he had reformed or changed his character in his latest period of incarceration so as to affect the likelihood of his reoffending. The birth of the son and the applicant’s separation from him occurred after the pre-sentence report and 9 May 2019 sentence on which the Tribunal relied. The Tribunal’s consideration stopped at its review of the applicant’s character as revealed up to the time of the pre-sentence report and in his subsequent criminal offending without it making any assessment or finding about the change that he asserted had occurred, once the latest period of incarceration of detention had commenced because, unlike earlier, he now had a son whom he loved and wanted to be with as a father, but was separated from him.

68    I reject the Minister’s argument that the Tribunal indirectly adverted to having considered the supporting evidence and material from the applicant’s family and friends as to the applicant’s change of character in its reference in [71] to them supporting him were he to be released into the community. Mere advertence in that context did not amount to engagement in an active intellectual process directed at the claim.

69    The question raised by the significant and clearly articulated claim was whether the applicant had changed while in custody after July 2019. That required the Tribunal to address that significant, or pivotal, claim, the evidence in relation to it and then to make a finding about it: Omar 272 FCR at 605–608 [36], [39]–[40]; Guclukol [2020] FCAFC 148 at [50]. On the face of its reasons, the Tribunal did not address that significant claim and the substantive evidence in support of it as part of the active intellectual process of considering the representations before it under s 501CA(3)(b) and (4). Reading the Tribunal’s reasons as a whole, it did not consider that claim because of the absence of any reasons making findings about it: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 346 [69] per McHugh, Gummow and Hayne JJ. I am satisfied that its failure to do so was also a material jurisdictional error.

Conclusion

70    It follows that the Tribunal’s decision should be set aside and the matter remitted to the Tribunal to be determined according to law. The Minister must pay the applicant’s costs.

Associate:

Dated:    1 July 2021