FEDERAL COURT OF AUSTRALIA

Pearson v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 825

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    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

MARKOVIC J:

1    Katherine Anne Victoria Pearson, the applicant, seeks judicial review of a decision made on 15 September 2020 by the second respondent (Tribunal). The Tribunal affirmed a decision of a delegate of the first respondent (Minister) not to revoke the cancellation of Ms Pearson’s class TY subclass 444 Special Category (Temporary) visa (Visa) under s 501CA(4) of the Migration Act 1958 (Cth).

BACKGROUND

2    Ms Pearson was born in New Zealand in 1980 and came to Australia when she was 23 years old.

3    In February 2019 Ms Pearson was convicted of drug and property offences and of knowingly participating in a criminal group. She was sentenced to a term of imprisonment of four years and three months with a non-parole period of two years.

4    By letter dated 17 July 2019 Ms Pearson was informed that her Visa had been cancelled under s 501(3A) of the Act (Cancellation Decision).

5    Section 501CA of the Act applies if the Minister makes a decision, referred to as the original decision, under subs 501(3A) to cancel a visa that has been granted to a person. Relevantly, s 501CA(3) of the Act provides that, as soon as practicable after making the original decision, the Minister must give the person a written notice that sets out the original decision and particulars of the relevant information and invite the person to make representations to the Minister, within the prescribed period, about revocation of the original decision. Section 501CA(4) provides that if representations are made in accordance with the invitation, the Minister may revoke the original decision if the Minister is satisfied that the person passes the character test (as defined by s 501) or there is another reason why the original decision should be revoked.  

6    In response to an invitation issued under s 501CA(3) of the Act, Ms Pearson sought revocation of the Cancellation Decision.

7    On 24 June 2020 Ms Pearson was notified that a delegate of the Minister had determined not to revoke the Cancellation Decision under s 501CA(4) of the Act.

8    On 2 July 2020 Ms Pearson filed an application for review of the delegate’s decision with the Tribunal. On 15 September 2020 the Tribunal affirmed the delegate’s decision.

THE TRIBUNAL’S DECISION

9    The Tribunal identified that there were two issues to be decided by it: whether Ms Pearson passes the character test; and if not, whether there is another reason why the Cancellation Decision should be revoked.

10    The Tribunal found that, given Ms Pearson’s sentence (albeit incorrectly specified as four years and two months), she does not pass the character test. Accordingly, it turned to consider whether there was another reason why the Cancellation Decision should be revoked. In doing so the Tribunal noted that it was required to apply Direction No. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of visa under s 501CA (Direction 79).

11    The Tribunal first considered each of the primary considerations set out in cl 13 of Pt C of Direction 79: protection of the Australian community from criminal or other serious conduct, the best interests of minor children in Australia and expectations of the Australian community.

12    In relation to protection of the Australian community from criminal or other serious conduct the Tribunal observed, as set out at cl 13.1(1) of Direction 79, that remaining in Australia is a privilege conferred in the expectation that the person is law abiding and will not cause harm to individuals or the Australian community and that decision makers must consider the nature and seriousness of the person’s conduct and the risk to the Australian community should the person commit further offences or engage in other serious conduct.

13    First, the Tribunal considered the nature and seriousness of Ms Pearson’s conduct to date. The Tribunal observed that Ms Pearson had been convicted of very serious offences, namely the supply of drugs, but that there was no information before it that those crimes were committed against vulnerable members of the community or government officials due to the position they hold or in the performance of their duties and that there was nothing before it to indicate that Ms Pearson had provided false or misleading information to the Department of Immigration, Citizenship, Migrant Services and Multicultural Affairs .

14    The Tribunal found that Ms Pearson’s sentence reflected the gravity of her offending, noting that a term of imprisonment is a sentence of last resort. The Tribunal observed that Ms Pearson’s most recent offences of supplying a prohibited drug, dealing with the proceeds of crime and participating in a criminal group were committed while she was subject to a good behaviour bond, which had been imposed in 2015 after she pleaded guilty to a charge of possession of a prohibited substance and dealing with property suspected to be the proceeds of crime; and that while on bail, she was charged with and convicted of a further two counts of possession of a prohibited substance and found to have breached bail by contacting a witness.

15    The Tribunal considered that offences committed while subject to a good behaviour bond and while on bail demonstrated a disregard for Australian laws and the liberty that had been extended to Ms Pearson.

16    The Tribunal noted the distinction between Ms Pearson’s drug addiction and funding her addiction, on the one hand, and the activities involved in running a criminal group for profit, on the other. It first referred to Ms Pearson’s statement that she was aware of the involvement of Mr Townsend, her partner at the time, in the supply of drugs since 2011 but that she was not involved in the process for many years and then said (at [45]-[48] of its decision record) that:

45.    Ms Pearson agreed that she had been involved in this process for some time, but later denied being involved in this process from 2015, and said:

… it was said on the stand by [Mr Townsend] when he was in court, that he handed me over the business when he um when he went to jail.

… He was arrested and then um so it would have been a third of the way through 2016

46.    Given this statement, Ms Pearson was herself conducting the supply of drugs in what is described by the sentencing judge as a sophisticated drug supply business with a large database of users after Mr Townsend was imprisoned. As noted by the sentencing judge, the financial gain of Ms Pearson was greater than could be explained by her own drug use. Her involvement in, and eventual running of the criminal enterprise shows an increasing trend of seriousness that is not solely related to her drug use.

47.    The pre-release report of 20 May 2020 states her current offences show an escalation of her offending behaviour in terms of scale and association.

48.    The escalation from drug use to involvement in a criminal enterprise to supply drugs shows an increasing trend of seriousness in her offending. Her disregard of her bond and her bail conditions and subsequent offending while on bail, including for approaching a witness, shows a lack of respect for Australian law and is contrary to the expectation of the Australian community that she will be law abiding and respect important institutions. Significant weight is accordingly placed on this consideration.

(Footnote omitted.)

17    Next, the Tribunal considered risk to the Australian community, referring to the factors to be considered at cl 13.1.2 of Direction 79. In assessing the risk to the Australian community the Tribunal had regard to the nature of the harm, the likelihood of engaging in further criminal or serious conduct, rehabilitation, risk assessments, remorse, Ms Pearson’s rehabilitation for drug use, trauma and protective factors.

18    In relation to risk assessment, the Tribunal considered the likelihood of Ms Pearson engaging in further criminal or other serious conduct. The Tribunal found that Ms Pearson had undertaken various courses as part of her rehabilitation and considered a report received from Ms Kris North, forensic physiologist, who assessed Ms Pearson as being in the low range for risk of reoffending.

19    At [93] of its decision record, the Tribunal observed that the nature of the risk to the Australian community must be considered cumulatively with the likelihood of reoffending. It concluded that in Ms Pearson’s case the nature of harm to the Australian community is significant, given the scale of her offending. Although the Tribunal did not accept that the likelihood of Ms Pearson committing further offences was as low as predicted by Ms North, it considered that even if there was a relatively low likelihood of re-offending, cumulatively the protection of the Australian community from criminal or other serious conduct weighed against Ms Pearson and in favour of not revoking the Cancellation Decision.

20    The Tribunal then turned to consider the best interests of minor children in Australia. Ms Pearson relied on her involvement with the daughter of her friend, Diana Pigliapoco. The Tribunal found that Ms Pearson had limited contact with the child who was three months old when she was imprisoned, that she does not currently play a parental role in relation to the child and that she had little contact with her. Given the limited effect Ms Pearson’s absence would have and her ability to develop a relationship in other ways, such as by telephone or electronic communication, the Tribunal placed little weight on this factor in favour of revoking the Cancellation Decision.

21    In relation to expectations of the Australian community the Tribunal concluded that, as Ms Pearson had been convicted of several offences, this factor weighed in favour of not revoking the Cancellation Decision and, in light of the scale of her offending and the organisation involved in committing the offences, it weighed heavily against Ms Pearson and in favour of not revoking the Cancellation Decision.

22    The Tribunal then addressed the other considerations set out in cl 14(1) of Direction 79 insofar as they concerned Ms Pearson.

23    It first considered strength, nature and duration of ties with Australia. The Tribunal found that Ms Pearson has contributed to the Australian community through her work as a graphic designer, that her friends would feel sad if she left Australia, that she has been in a relationship with Mr Farrow for three years (two of which were spent in prison), that Mr Farrow would be unable to relocate to New Zealand as he cares for his elderly parents and will be affected if she is removed and that all of Ms Pearson’s family is in New Zealand. The Tribunal concluded that overall this consideration “weighs somewhat in favour of” revoking the Cancellation Decision.

24    In relation to extent of impediments if removed, the Tribunal found that at a superficial level Ms Pearson could access support from her parents, would have access to health, social security and other services available to New Zealand citizens, does not have language or cultural barriers, has tertiary qualifications and experience as a graphic designer and has the skills to obtain work.

25    The Tribunal noted that Ms Pearson identified the factors that may be impediments to her return to New Zealand to be her history of experiencing domestic violence, her relationship with her parents, unemployment, the COVID-19 pandemic, access to trauma counselling and her ability to obtain work without her equipment. In relation to those factors:

(1)    the Tribunal did not consider that Ms Pearson would continue to be at risk of domestic violence on her return as she had left New Zealand 17 years ago and there was no evidence that her ex-partner had attempted to contact her or her family;

(2)    the Tribunal accepted that returning to New Zealand would result in stress and a potential deterioration in Ms Pearson’s mental health but it did not accept that it would be to such an extent that she would be unable to function or to seek work to support herself. It noted that, despite her experiences of trauma in Australia and escalating drug use, she had maintained work at some level;

(3)    as to Ms Pearson’s relationship with her family, the Tribunal noted that she had lost contact with her brother and his three children and that her relationship with her parents is vague. The Tribunal observed that in Ms Pearson’s pre-sentencing statement dated 12 October 2016 she stated that she comes from a loving home, leaving her parents and brother was hard and she is very close to her mother but that Ms Pearson now says that she has a distant relationship with her parents, a view which was supported by her friends. However, the Tribunal noted that Ms Pearson also acknowledged that her parents would provide her with some support if she were to return to New Zealand;

(4)    the Tribunal was satisfied that Ms Pearson had skills which would enable her to obtain work. It did not consider that the COVID-19 pandemic would create any difficulty for her in re-establishing herself in New Zealand;

(5)    the Tribunal accepted that funding from Victim Support Services, which enabled her to continue her trauma counselling, would be lost upon relocation to New Zealand but that there was no information before it about lack of services available to her in New Zealand. It noted that Ms Pearson had maintained work despite the trauma that she has suffered and her drug use; and

(6)    the Tribunal was of the opinion that Ms Pearson could seek employment in New Zealand without the need for her equipment for self-employment or could potentially access government or welfare services to continue with her counselling and did not consider this would prevent her re-establishing herself in New Zealand. It also did not accept that Ms Pearson would be deprived of the opportunity to obtain work in New Zealand because she could not afford to move her computers and other equipment to New Zealand for her work as a graphic designer. It considered that Ms Pearson’s equipment could remain stored until she had gathered the resources to have it transported to New Zealand.

26    Overall the Tribunal acknowledged that Ms Pearson would face some impediments in re-‍establishing herself in New Zealand but found that these were not insurmountable. It concluded that this factor “weigh[ed] slightly in favour” of revoking the Cancellation Decision.

27    The Tribunal then weighed up its findings in relation to each of the primary and other considerations and reached its conclusion to affirm the delegate’s decision.

THE AMENDED APPLICATION

28    Ms Pearson commenced this proceeding by the filing of an originating application recorded as filed on 22 October 2020, which was two days after the last day permitted for commencement of the proceeding by s 477A of the Act. Accordingly, Ms Pearson sought an extension of time to commence the proceeding. In doing so she explained that she had originally lodged her application with the Court on the 35th day, 20 October 2020, as is evident from the notice of filing and hearing appearing on the cover page of the originating application. However, at the time Ms Pearson was informed by a Registrar that she required additional documents and that if she submitted those documents by close of business on 21 October 2020, which she did, her application would be accepted without the need for an extension of time.

29    The Minister’s position is that, in the circumstances, an extension of time is not required. The matter proceeded on that basis.

30    Ms Pearson relies on an amended originating application in which she raises four grounds of review as follows (as written):

1.    The tribunal erred in its assessment of community expectations or in the weight it attributed to the nature and seriousness of the applicant’s conduct.

Particulars

(i)    The tribunal considered that the applicant’s disregard of her bond and bail conditions and offending while on bail showed a lack of respect for Australian law and was contrary to the expectation of the Australian community that she would be law abiding and respect important institutions, and “accordingly” placed significant weight on this consideration (reasons for decision at [48]).

(ii)    In the context of protecting the Australian community, remaining in Australia is a privilege which Australia confers on non-citizens in the expectation that they are or have been law-abiding and will respect important institutions: Direction No 79: Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (dated 20 December 2018), cl.13.1(1).

(iii)    The tribunal erred by making its own assessment of community expectations, contrary to FYBR v Minister for Home Affairs [2019] FCAFC 185.

(iv)    Further or alternatively, the tribunal erred by considering that non-compliance with Australian community expectations dictated (“accordingly”) the weight it attached to the nature and seriousness of the applicant’s conduct.

2.    When deciding whether to revoke the cancellation decision, the tribunal erred when weighing the primary and other considerations (reasons for decision at [131]-[134])

Particulars

(i)    The tribunal failed to cumulatively consider whether one primary consideration (being the best interests of a child) and two other considerations (being the applicant’s ties to Australia and the impediments to her return) which favoured revocation, or their cumulative effect, outweighed the two primary considerations tending against revocation.

(ii)    Further or alternatively, it ought to be inferred from its reasons for decision that the tribunal failed to inquire as to whether two other consideration (being the applicant’s ties to Australia and the impediments to her return) should be treated as primary considerations, as required by Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 at [23].

3.    The tribunal failed to consider probative information or evidence which was relevant to its review or otherwise erred in its consideration of the risk to the Australian community.

Particulars

(i)    When assessing the likelihood of the applicant re-offending, the tribunal was not satisfied that the applicant’s criminal offending that related to participating in a criminal group for profit had been addressed in the evidence to a significant level or substantial degree (reasons for decision at [67], [92]; see also at [46]).

(ii)    It ought to be inferred from the absence of reference thereto in its reasons for decision that the tribunal failed to consider particular parts of the report of Kris North dated 21 November 2019 as well as other probative evidence available before the tribunal which was relevant to the issue of the applicant’s offending that related to running a criminal organisation for profit.

4.    The tribunal failed to consider an express representation or claim made by the applicant and supported by probative evidence.

Particulars

(i)    The applicant had represented or claimed, with probative evidence, that separation from her 2 pet dogs was another consideration to be taken into account in the decision whether to revoke the visa cancellation decision (eg Courtbook, pp 184-5, 196).

(ii)    It ought to be inferred from the tribunal’s failure to refer to this representation or claim and evidence in its reasons for decision (especially at [102]-[130]) that it had failed to consider that representation or claim.

GROUND 1

31    By her first ground Ms Pearson alleges that the Tribunal erred in assessing community expectations or the weight to be attributed to the nature and seriousness of her conduct. This ground focuses on [48] of the Tribunal’s decision record (see [16] above).

Ms Pearson’s submissions

32    Ms Pearson submitted that the Tribunal was required to comply with Direction 79 when considering a request for revocation of a mandatory visa cancellation and that a failure to comply with Direction 79 in a way which is material to the outcome of a review can amount to jurisdictional error. Ms Pearson submitted that Direction 79 relevantly identifies one of the primary considerations for revocation requests as protection of the Australian community, noting that the direction specifies that remaining in Australia is a privilege that it confers on non-citizens “with 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”. Ms Pearson said that it was unclear whether the reference to “expectation” relates to the Government’s expectation, having regard to the immediately preceding sentence, or that of the Australian community, having regard to cl 13.3, and that the expectation is relevant to whether an individual remains in Australia.

33    Ms Pearson submitted that by its language the Tribunal evidently considered that the expectation referred to in cl 13.1(1) of Direction 79 related to the expectations of the Australian community which is not self-evidently the correct construction. She contended that if the expectation was that of the Government, then the Tribunal erred. If its construction was correct then the Tribunal erred in any event, having regard to FYBR v Minister for Home Affairs (2019) 272 FCR 454.

34    Ms Pearson submitted that, while the Tribunal cited FYBR for the proposition that it is not for the decision maker to make his or her own assessment of community expectations, the Tribunal erred by going on to do just that. She contended that the Tribunal impermissibly defined the content of the Australian community’s expectations by reference to her particular circumstances. Put another way, her conduct was used as evidence of the Australian community’s expectations and, in the Tribunal’s view, a lack of respect for important institutions involves disregarding bond and bail conditions and subsequent offending. Ms Pearson argued that community expectations “speak normatively” and, while they are to be applied in every case, they are not expressed in relation to any particular case and it is not the decision maker who makes an assessment of community values on behalf of the community, referring to FYBR at [103]-[104].

35    In the alternative Ms Pearson submitted that the Tribunal erred by considering that non-‍compliance with Australian community expectations dictated the weight it attached to the nature and seriousness of her conduct. She said that the error is indicated by the Tribunal’s use of the word “accordingly” at [48] of its decision record. Ms Pearson contended that community expectations do not speak to the outcome in any particular case, referring to FYBR at [91] and [97]. She submitted that it is therefore an error of law in construing Direction 79 to conclude, as the Tribunal did here, that the community expects a particular outcome in the particular case.

Consideration

36    Direction 79 was made under s 499 of the Act which permits the Minister to give written directions to a person or body having functions or powers under the Act if the directions are about the performance of those functions or the exercise of those powers. A person or body must comply with a direction so given.

37    Direction 79 comprises a preamble and parts A, B and C. The preamble contains the objectives, general guidance for decision-makers and the principles that provide a framework within which decision-makers should approach their task of deciding whether, relevantly, to revoke a mandatory cancellation under section 501CA. Part C concerns the considerations relevant to determining whether to exercise the discretion to revoke the mandatory cancellation of a non-‍citizen’s visa.

38    The principles are set out in cl 6.3 and include:

(1)    Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

39    Part C of Direction 79 commences with cl 13 which sets out the three primary considerations to be taken into account in deciding whether to revoke the mandatory cancellation of a non-‍citizen’s visa. Clause 13.1 concerns the first of the primary considerations, protection of the Australian community from criminal or other serious conduct, and provides:

(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.

40    Clauses 13.1.1 and 13.1.2 respectively address the two matters referred to in cl 13.1(2) setting out, in the case of cl 13.1.1, a non-exhaustive list of the factors to which the decision maker must have regard in considering the nature and seriousness of the non-citizen’s conduct and, in the case of cl 13.1.2, the two matters to which the decision maker must have regard cumulatively in assessing the risk to the Australian community.

41    Ms Pearson’s complaint is two-fold.

42    First, she says that that in assessing the protection of the Australian community the Tribunal misapplied the principles set out in FYBR because at [48] of its decision record, in giving content to the requirement that a non-citizen “will respect important institutions” (see cl 13.1(1) of Direction 79), the Tribunal had regard to Ms Pearson’s own conduct and circumstances rather than applying the norm as required by Direction 79.

43    In FYBR a Full Court of this Court (Flick, Charlesworth and Stewart JJ) considered cl 11.3 of “Direction No 65: Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA” (Direction 65), which was the predecessor to Direction 79. Clause 11.3 of Direction 65 concerned expectations of the Australian community. It provided:

The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to refuse the visa application of such a person. Visa refusal may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted a visa. Decision-makers should have due regard to the Government’s views in this respect.

Its equivalent is found in cl 13.3 of Direction 79.

44    At [61] Charlesworth J said that the proper construction of cl 11.3 of Direction 65 turned on two questions: whether the clause expresses an expectation deemed by the government to be held by the Australian community; and whether the clause gives expression to an expectation that must of its nature weigh against the grant of a visa in every case.

45    In relation to the first question, at [66] Charlesworth J accepted the Minister’s submission that cl 11.3 contains a statement of the government’s views as to the expectations of the Australian community. At [67] her Honour said:

To the extent that cl 11.3 contains a statement of the expectations of the Australian community, the clause is “deeming”, in the sense explained by Mortimer J in the limited passage from YNQY upon which the Tribunal relied at [54] of its reasons (extracted at [45] above). It is not for the decision-maker to make his or her own assessment of the community expectations and to give that assessment weight as a “primary consideration”. I do not understand the judgment of Griffiths J in DKXY to differ from that of Mortimer J in YNQY in that respect. For my part, I prefer to describe the clause as imputing or ascribing to the whole of the Australian community an expectation that wholly aligns with the expectation of the executive government of the day in respect of its subject matter.

46    In relation to the second question, Charlesworth J said at [68] that the content of the deemed expectation is to be discerned by construing cl 11.3 itself. Her Honour observed that the clause expresses two expectations. The first, found in the opening sentence, concerned norms of conduct to be expected of non-citizens while the second, found in the second and third sentences, was more difficult to interpret. In relation to that part of cl 11.3 at [72] her Honour said:

This part of the clause is concerned with the consequences that should befall a non-citizen who has fallen foul of the first expectation. It should be understood as expressing an expectation about the outcome of the exercise of the power conferred by s 501(1) of the Act in respect of the particular person whose circumstances are under consideration.

47    Justice Stewart agreed that the two questions posed by Charlesworth J should be answered “yes” but his Honour’s process of reasoning differed (at [86]). Under the heading “Context” Stewart J considered the first question. At [91]-[93] his Honour said:

91    The above contextual factors lead to two guiding considerations to the proper construction of Direction 65. First, “community expectations” as expressed normatively are what the Government says that they are, even though in actual fact if they were ascertainable community expectations might be quite different. Second, “community expectations” as expressed by the Government do not speak to the outcome in any particular case — they are to be understood and applied normatively.

92    There is also an important structural consideration, which is identified in the reasons of the primary judge (at [39]-[41]) and Charlesworth J (at [73]). It is that community expectations are to be taken into consideration (as a primary consideration) with other factors to inform the decision-maker’s decision. The consequence of that is twofold. First, not every factor relevant to the decision will inform the content of community expectations and, second, the ultimate decision may differ from the community expectations.

93    This is an important further indication that it is not for the decision-maker to undertake an assessment of what the community expectations are in each case dependent on the circumstances of the case which circumstances would necessarily include all the considerations relevant to the ultimate decision. If that was so then the expectations of the community, as assessed, would determine the decision which would conflict with the requirement that they be taken as merely one of three primary considerations along with a number of other considerations to inform the ultimate decision.

(Emphasis in original.)

48    Under the heading “Text” Stewart J considered the second question. His Honour observed that the first sentence of cl 11.3 said “no more than what the law in any event demands of all people in Australia, non-citizens and citizens alike, namely that the Australian community expects non-citizens to obey Australian laws while in Australia. As expected, that is a normative principle”. His Honour found the second sentence of cl 11.3 to be more difficult but reasoned that it means “that the community expects that when a non-citizen has disobeyed Australian laws while in Australia whether confirmed by conviction or otherwise, or there is an unacceptable risk that they will break those laws, or where they have committed offences (i.e. broken laws) elsewhere, it “may be appropriate” to refuse the visa application”: at [96].

49    At [97] Stewart J Honour said:

The use of the phrase “may be appropriate” has the inevitable consequence that the community expects that there will be circumstances where the disobedience or breach or risk of disobedience or breach referred to in the earlier part of the sentence will not lead to refusal of the visa application. The community thus expects that it will be necessary in every case to assess the circumstances particular to the visa applicant in question in order to reach an evaluative assessment of “appropriateness”. That assessment is not an assessment of what the Australian community expects in the particular case. The Australian community expects people to obey the law, and if they do not (or there is a risk that they will not) then that is relevant to whether or not they will be granted a visa, and in some cases it may be appropriate that they will be refused a visa because of their disobedience (or the risk of their disobedience). Direction 65 does not ascribe to the Australian community a relevant expectation with regard to the outcome in the particular case. That is a matter for the decision-maker.

(Emphasis in original.)

50    FYBR concerned the construction of cl 11.3 of Direction 65, the equivalent of which is found in cl 13.3 of Direction 79. Ms Pearson seeks to apply the construction given to that clause to cl 13.1(1) of Direction 79. But, those clauses are different. It is not readily apparent that the considerations which apply to the construction of cl 11.3 as identified in FYBR apply to cl 13.1(1).

51    Clause 13.1(1) concerns what is required when considering the protection of the Australian community. In its opening sentence it refers 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. That is a statement of the government’s commitment. Ms Pearson focusses on the second sentence which provides that “[r]emaining 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”. That statement reflects the principle in cl 6.3(1) (see [38] above). Read in context, that is a statement of the government’s view which the Tribunal was obliged to apply.

52    The Tribunal referred to the statement in the second sentence of cl 13.1(1) at [36] of its decision record, albeit in summary form. At [48] it again referred to the principle in a summary way where it said that Ms Pearson’s “disregard for her bond and her bail conditions and subsequent offending while on bail … shows a lack of respect for Australian law and is contrary to the expectation of the Australian community that she will be law abiding and respect important institutions”.

53    A fair reading of those parts of the Tribunal’s decision, in context, does not lead me to conclude that the Tribunal made its own assessment of the Australian community’s expectations by reference to Ms Pearson’s particular circumstances. It refers to the principle or expectation and finds that, because of her conduct, Ms Pearson has breached it.

54    Secondly, and in the alternative, Ms Pearson contends that the Tribunal erred by considering that non-compliance with Australian community expectations dictated the weight it attached to the nature and seriousness of her conduct. This submission concerns [48] of the Tribunal’s decision record (see [16] above) and, in particular, its use of the word “accordingly” in concluding that significant weight should be placed on the nature and seriousness of Ms Pearson’s conduct to date.

55    On a fair reading of the Tribunal’s reasons it is not the case that non-compliance with Australian community expectations dictated the weight to be ascribed. Rather, having considered the factor and Ms Pearson’s conduct the Tribunal formed its own view and for the reasons it gives ascribed weight to the factor under consideration.

56    Ground 1 is not made out.

GROUND 2

57    By this ground Ms Pearson contends that the Tribunal erred when it undertook its weighing up exercise of the primary and other considerations at [131]-[134] of its decision record (see [62] below).

Ms Pearson’s submissions

58    Ms Pearson submitted that the Tribunal purported to weigh the primary and other considerations at [131]-[134] of its decision record by summarising its prior conclusions with respect to two primary considerations and then summarising its prior conclusions with respect to two other considerations. She contended that the Tribunal’s overall evaluation of the considerations is very briefly expressed at [134] of its decision record, where it simply restates the proposition that primary considerations are generally given greater weight than the other considerations, says that there was no reason to depart from this in the circumstances and, as a result, concludes that the decision is affirmed.

59    Ms Pearson submitted that the Tribunal omitted several essential steps in its evaluative process when conducting the required weighing process.

60    First, she said that the Tribunal failed to consider whether one primary consideration, the best interests of a child, and two other considerations, her ties to Australia and impediments to her return (each of which favoured revocation), cumulatively outweighed the two primary considerations tending against revocation. She contended that the Tribunal was required to assess whether one primary consideration which weighed “slightly” in favour of revocation, plus two other considerations which also weighed “slightly” in favour of revocation, would be sufficient to outweigh two primary considerations which weighed against revocation, one of which did so “heavily”. Ms Pearson submitted that the Tribunal did not express this assessment in its reasons and it ought to be inferred that the required assessment was not undertaken. She contended that the fact that primary considerations have been given greater weight than other considerations does not completely resolve the question because there was also one primary consideration which weighed slightly in favour of revocation.

61    Secondly, Ms Pearson contended that it ought to be inferred, given the absence to any such consideration in its decision record, that the Tribunal failed to enquire whether two other considerations, the applicant’s ties to Australia and the impediments to her return, should be treated as primary considerations, referring to the decision in Suleiman v Minister for Immigration and Border Protection [2018] FCA 594; (2018) 74 AAR 545 at [23]. Ms Pearson submitted that although the Tribunal referred to Suleiman at [34]-[35] of its reasons for decision the enquiry was not undertaken.

Consideration

62    The first part of this ground attacks the assessment or weighing up of the primary and other considerations undertaken by the Tribunal in the concluding paragraphs of its decision record at [131]-[134]. There the Tribunal said:

131.    Two of the Primary Considerations; the protection of the community and the expectations of the community weigh against revoking the cancellation of Ms Pearson’s visa, with the expectation of the community weighing heavily against revoking the cancellation of the visa.

132.    The best interests of the child weigh slightly in favour of revoking the cancellation of her visa.

133.    Of the Other Considerations, Ms Pearson’s ties to Australia and the impediments to her returning to New Zealand weigh slightly in favour of revoking the cancellation.

134.    Primary Considerations are generally to be given greater weight than the Other Considerations, and the Tribunal sees no reason to depart from this in the circumstances of this case. As a result, the Tribunal affirms the decision not to revoke the cancellation of Ms Pearson’s visa.

63    The Tribunal first considered its conclusions in relation to the primary considerations, two of which weighed against revoking the Cancellation Decision, in one case heavily so, and one of which weighed slightly in favour of revocation of that decision. It then turned to the other considerations, noting that two of them weighed slightly in favour of revoking the Cancellation Decision. It brought together its assessments of the primary and other considerations at [134]. Contrary to Ms Pearson’s submission, by that paragraph the Tribunal should be understood to have undertaken exactly the task she contends it did not. That is, although not plainly expressed, the Tribunal must be taken to have implicitly considered whether one primary consideration plus two other considerations, each of which weighed slightly in favour of revocation, are sufficient to outweigh two primary considerations which weighed against revocation, one of which did so heavily. Implicitly, the Tribunal found that they did not. That is evident from the Tribunal’s view that primary considerations are generally to be given greater weight and its conclusion that it could see no reason to depart from that approach in this case.

64    The second part of this ground relies on the decision in Suleiman. In that case the tribunal found that the applicant would face harm if he returned to his country of nationality because of his mental health condition, which weighed in favour of revocation of the decision to cancel the applicant’s visa. Despite that finding the tribunal went on to conclude that “this ‘secondary consideration’ did not outweigh the tribunal's findings in relation to ‘primary considerations’”: see Suleiman at [7]-[8]. One of the grounds raised by the applicant was to the effect that the tribunal did not properly interpret and apply the relevant provisions of the Act. In light of that ground Colvin J requested the Minister to provide submissions about the approach required on review by the tribunal where an applicant claims that personal harm will result if the applicant was to be returned to his or her place of nationality, including the related question of the effect of Direction 65 (which, as noted above, is the predecessor to Direction 79): see Suleiman at [16].

65    Justice Colvin first considered the tribunal’s approach to the issue of harm if the applicant was returned to his country of nationality. In doing so his Honour observed that in its reasons the tribunal referred to the “other considerations” mandated by Direction 65 (and by Direction 79) to be taken into account where relevant to the individual case as “secondary considerations”. Included in the non-exhaustive list of “other considerations” were non-refoulement obligations. At [23] his Honour said:

The use by the Tribunal of the term 'secondary' indicates that the 'other considerations' are always of lesser importance. However, Direction 65 makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non-refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.

    (Emphasis added.)

66    Direction 79 is relevantly in the same terms as Direction 65. Clause 8(1) of Direction 79 relevantly provides that decision makers must take into account the primary and other considerations relevant to the individual case. Ms Pearson’s complaint is that the Tribunal erred because it is not apparent that it made an inquiry as to whether any of the “other considerations” relevant to her case should be treated as a primary consideration.

67    At [35] of its decision record, after expressly referring to Suleiman at [23], the Tribunal observed that the inquiry postulated by Colvin J (see [65] above) means that “an evaluation of the factors occurs in the context of the circumstances of the individual case” and that, while primary considerations should generally be given greater weight than other considerations, the latter “can outweigh Primary Considerations in the particular circumstances of the case”. That is, the Tribunal was aware that other considerations could be afforded the greatest weight and outweigh the primary considerations in a particular case. However, as is plain from the Tribunal’s reasoning at [131]-[134], it did not form that view in Ms Pearson’s case. That the Tribunal did not expressly pose and then answer the question does not mean that it did not consider whether, in effect, any of the other considerations could be treated as a primary consideration or afforded the greatest weight.

68    A vice in the tribunal’s decision that was considered by the Court in Suleiman was the designation of the other considerations as “secondary considerations” connoting a hierarchy of considerations to be applied in all instances: see Suleiman at [26]. That same approach is not apparent in the Tribunal’s decision in this case. Here, the Tribunal was cognisant that greater weight could be afforded to any of the other considerations in the circumstances of a particular case but, evidently, it did not reach that view in relation to the other considerations that it considered to be relevant to Ms Pearson’s case, having regard to her particular circumstances.

69    Ground 2 is not made out.

GROUND 3

70    By ground 3 Ms Pearson contends that the Tribunal failed to consider probative evidence which was relevant to its review or that it otherwise erred in its consideration of the risk to the Australian community.

Ms Pearson’s submissions

71    Ms Pearson accepts that she was convicted for knowingly participating in a criminal group. She refers to the sentencing remarks of acting Judge Conlon SC where his Honour described her and another person managing and controlling a well-organised business supplying drugs to the community and to the delegate’s decision which referred to Ms Pearson running a sophisticated drug supply business where her role was that of an organiser. Ms Pearson also observes that, in the context of assessing the risk of her reoffending, the Tribunal referred to her involvement in, and eventual running of, a criminal enterprise. Ms Pearson notes that the Tribunal was not satisfied that her criminal offending that related to her participation in a criminal group had been addressed in the evidence to a significant level or substantial degree.

72    Ms Pearson submitted that it ought to be inferred from the absence of reference thereto in its decision record that the Tribunal failed to consider first, particular parts of the forensic psychologist’s report; and/or secondly, other probative evidence available to it which was relevant to the issue of her reoffending and which related to running a criminal organisation for profit.

73    Ms North was the forensic psychologist relied on by Ms Pearson. In relation to Ms North’s report Ms Pearson submitted that the Tribunal primarily focused on her risk of relapse and underlying mental health (at [67] of its decision record), when other aspects of that report addressed her involvement in a criminal enterprise. Ms Pearson contended that in Ms North’s report, her participation in a criminal enterprise was part of her criminal history for which she had been sentenced and was an accepted fact which formed part of Ms North’s risk assessment. She said that the purpose of Ms North’s report was to undertake a psychological assessment and not to address why she had decided solely to run a business and profit from the sale of drugs to others and that Ms North accepted that she had accepted responsibility for her past offending. Ms Pearson said that before the Tribunal she submitted that she took responsibility for engaging in the totality of her offences, as set out in a letter to the sentencing judge.

74    Ms Pearson submitted that the Tribunal focused on Ms North’s report to the exclusion of other evidence concerning the risk of her again running a criminal organisation for profit. Ms Pearson said that when considered cumulatively the evidence indicated that she had consistently expressed remorse, undertaken extensive rehabilitation including courses and mentorship positions while incarcerated, undertaken behavioural reform and religious activities, and expressed insights at group meetings. For example, Ms Pearson referred to her statement dated 23 August 2019 and the contents thereof, a statement from her partner, Mr Farrow, and a statement from one of Ms Pearson’s former employers in relation to direct evidence of Ms Pearson’s business acumen.

Consideration

75    Ms Pearson contends that the Tribunal failed to consider probative evidence or information relevant to participation in a criminal enterprise in the context of its risk assessment when it considered risk to the Australian community. Ms Pearson says that is so because it failed to consider first, aspects of Ms North’s report; and secondly, other available evidence relevant to participation in a criminal enterprise. 

76    I turn first to Ms North’s report. The particular complaint about Ms North’s report is that the Tribunal failed to consider those aspects of it which addressed Ms Pearson’s involvement in a criminal enterprise.

77    Ms North’s report is 14 pages in length. It is arranged in three parts: first, it sets out the times at which Ms North met with Ms Pearson and the material that was provided to her; secondly, it sets out background information; and thirdly, it sets out Ms North’s opinion. Ms Pearson identifies the following parts of Ms North’s report in which she contends that reference was made to her engagement in a criminal enterprise:

(1)    in the background information:

(a)    under the heading “Substance Use History” at [15] where Ms North notes that Ms Pearson “identified developing a daily drug habit, which eventually led to her involvement in her partner’s ‘drug run’ in order to support her own habit”;

(b)    under the heading “Actuarial Risk Assessment” at [28] where Ms North listed one of the protective factors to be that Ms Pearson has accepted responsibility for her offences; and

(c)    under the heading “Offence History” at [29] where Ms North observes, among other things, that:

… Ms. Pearson was convicted in February 2019 for charges relating to the supply of a prohibited drug, knowingly deal with proceeds of crime, and knowingly participate in criminal group. Ms. Pearson was sentenced to four (4) years and three (3) months in relation to these offences, with a non-parole period of two (2) years. It should be noted that all of her past offences were directly related to her drug use issues.

(2)    in the opinion part of the report:

(a)    under the heading “Progress in Treatment” at [32] where Ms North said that “Ms. Pearson had insight into the association between her drug use and subsequent offending behaviours, and presented as highly motivated towards resisting relapse in the future”;

(b)    under the heading ‘Recidivism” at [35] where Ms North noted that “Ms. Pearson identified her period in custody had allowed her to reflect on past choices, and she presented as genuinely remorseful about her past behaviour” and at [36] where Ms North expressed the opinion that Ms Pearson posed a low risk for future re-offending; and

(c)    under the heading “Conclusion” at [40] where Ms North expressed the view that Ms Pearson’s drug use directly contributed to her offending behaviours for which she had expressed remorse, accepted responsibility and had been serving her sentence.

78    The Tribunal considered Ms North’s report and her evidence at [61]-[68] of its decision record: at [61] the Tribunal referred to Ms North’s assessment of Ms Pearson in the low range for a risk of reoffending which could be managed if she continued to engage in appropriate treatment; at [62] the Tribunal observed that there were some documents that were not provided to Ms North at the time she prepared her report, namely the remarks of the sentencing judge and the delegate’s decision; and at [63]-[66] the Tribunal summarised evidence given by Ms North. Ms Pearson’s complaint focusses on [67] of the Tribunal’s decision record where the Tribunal expressed concerns about the report. It said:

Other than the concerning lack of complete information before Ms North, a real concern about Ms North’s report is that while Ms Pearson’s offending in relation to the use of drugs could be explained in relation to her diagnosis of PTSD and depression as perhaps could some offending in order to fund her drug use, it does not explain trafficking in such a large quantity of drugs, assisting to run and then solely running the business and profiting from the sale of drugs to others. As stated by the sentencing judge, the quantities of cash found would be unlikely to be explained solely by reference to a drug debt. This aspect of her offending, as opposed to her trauma and drug use, is not addressed to any significant level in the report, and as such I did not find it useful to assess her risk of this type of offending in the future. Ms North assessed the risk of Ms Pearson relapsing into drug use in relation to her underlying mental health, which was stated to directly contribute to her offending. I am not satisfied this report addresses the aspect of her offending that relates to running a criminal organisation for profit.

79    It is clear from the Tribunal’s reasons that it read Ms North’s report; it summarised aspects of it and of Ms North’s evidence and expressed a view about the report’s shortcomings. Ms Pearson does not explain why it should be inferred that the Tribunal failed to take into account those parts of Ms North’s report identified above. However, the absence of references to particular parts of Ms North’s report does not support an inference that those parts were overlooked by the Tribunal: see Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 at [33]. To the contrary, as submitted by the Minister, the Tribunal’s observations at [67] of its decision record (see above) and at [92], to the effect that aspects of Ms Pearson’s criminal offending relating to her participation in a criminal group for profit had not been addressed “to a substantial degree”, indicate that it did not consider that Ms North’s report addressed the significance of Ms Pearson being engaged in a criminal enterprise for profit when considering the risk of recidivism. Upon examination it is apparent that Ms North’s report does not specifically address that issue.

80    Next I consider the other evidence which Ms Pearson contends the Tribunal failed to consider. That evidence was: her statement dated 23 August 2019 in which, among other things, she said that she had observed firsthand the damaging effect of drugs on the community and did not want to be a part of that again and described the detrimental effects of her relationship with her former partner; a letter from Mr Farrow in which he said that Ms Pearson’s previous relationships encouraged her to participate in drug-related activities and undertake drug behaviours; evidence from a former employer that they would have been unable to own, direct and maintain a business without Ms Pearson’s guidance and support; the fact that Ms Pearson had registered for an Australian Business Number for her graphic design business, demonstrating her ability to run a lawful business, and that she had an employment offer, eliminating the necessity for unlawful commercial activity; and the courses Ms Pearson had successfully completed.

81    The Tribunal did not expressly refer to the evidence identified by Ms Pearson. But it does not follow that the Tribunal did not consider that evidence. In Minister for Home Affairs v Buadromo (2018) 267 FCR 320 at [48]-[49] a Full Court of this Court (Besanko, Barker and Bromwich JJ) said:

48    Generally, an obligation to give reasons does not require a “line-by-line refutation of the evidence of the claimant either generally or in those respects where there is evidence that is contrary to findings of material fact made by the tribunal”. The tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 74 ALJR 405 at [65]-[67] per McHugh J).

49    It is generally not essential for a tribunal or other primary decision-maker to refer to every piece of evidence or contention advanced by a claimant. In Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593, the Full Court of this Court said (at [46]-[47]):

It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [87]-[97]) and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The Tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised “with an eye keenly attuned to error”. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.

The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.

82    When the Tribunal’s reasons are considered as a whole, it cannot be inferred that the Tribunal overlooked or did not consider the particular aspects of Ms Pearson’s statement which she identifies as relevant to the issue of running a criminal enterprise for profit. The Tribunal was clearly aware of Ms Pearson’s statement. For example, the Tribunal referred expressly to it at [69] of its decision record in the context of its consideration of remorse. However, at [45] of its decision record the Tribunal referred to Ms Pearson’s oral evidence and concluded (at [46]) that, in light of that evidence, Ms Pearson was conducting the supply of drugs herself in what the sentencing judge described as a sophisticated drug supply business with a large database of users. It is apparent that the Tribunal gave more weight to Ms Pearson’s oral evidence and the remarks of the sentencing judge when considering the issue of running a criminal enterprise. As has been recognised, the Tribunal was not obliged to undertake a line-by-line-analysis of Ms Pearson’s statement.

83    The same conclusion is reached in relation to the remaining evidence identified by Ms Pearson. Much of that evidence is referred to by the Tribunal in its reasons: in considering protective factors, the Tribunal referred to both the job offer and the course completed by Ms Pearson (at ‍[87] and [89] of its decision) and it was clearly aware of her relationship with Mr Farrow. Once again it cannot be inferred that the Tribunal did not consider the particular evidence referred to by Ms Pearson.

84    Ground 3 is not made out.

GROUND 4

85    By this ground Ms Pearson contends that the Tribunal failed to consider an express representation or claim she had made which was supported by probative evidence. That is, that separation from her two pet dogs, Oscar and Walter, was another consideration to be taken into account in the decision whether to revoke the Cancellation Decision.

The parties’ submissions

86    Ms Pearson submitted that if representations are made there is a statutory obligation upon the Minister to consider whether to exercise the power conferred by s 501CA(4) of the Act, although she accepted that an applicant’s representations “are a mandatory relevant consideration as a whole and not as to the individual statements contained in the representations” and that it is generally unnecessary for the Tribunal to refer to every piece of evidence or contention advanced by an appellant, referring to Buadromo at [41] and [48]-[49]. Ms Pearson submitted that, although a representation should not be dissected to forensically seize upon a failure to address a particular statement as exposing legal error, it must also be recognised that representations might not be drafted with the skill of legal practitioners, referring to EVK18 v Minister for Home Affairs (2020) 274 FCR 598 at [14].

87    Ms Pearson submitted that on 23 August 2019 she expressly represented to the Department that separation from her two pet dogs, Oscar and Walter, was another consideration to be taken into account in whether to revoke the Cancellation Decision. She contended that the evidence before the Tribunal was replete with references to the two dogs and said that her representations and probative evidence in support are relevant matters under Direction 79 insofar as they fall under the rubric of the strength, nature and duration of her ties to Australia or as an impediment to her return to New Zealand. Ms Pearson contended that, by their omission from the Tribunal’s decision record, there is no meaningful consideration, let alone any active intellectual engagement by it, with respect to Oscar and Walter. She observed that in stark contrast the delegate, when considering the extent of the impediments she would face if removed from Australia, accepted that she may experience emotional hardship due to her separation from her two dogs.

88    In the alternative, Ms Pearson submitted that the Tribunal was obliged to consider probative evidence before it which was relevant to the decision to be made. She contended that it ought to be inferred from the Tribunal’s failure to refer to evidence about Oscar and Walter in its reasons for decision that it failed to consider that material.

89    The Minister submitted that the Tribunal did not need to mention every item of evidence before it. He observed that Ms Pearson’s submissions before the Tribunal did not mention potential separation from her dogs as an impediment to removal and that the Tribunal does not record any oral submission to that effect either. The Minister also said that it was not apparent that Ms Pearson could not arrange to have her dogs sent to New Zealand if she wished, noting that Ms North’s report only reported Ms Pearson to say that this was “unlikely … due to financial constraints”. The Minister contended that this is speculative in the absence of costs being identified.

90    The Minister submitted that given that Ms Pearson was already separated from her dogs because she was in prison and immigration detention, and that she did not rely on separation from them in her submissions to the Tribunal, it is understandable that the Tribunal does not mention them. The Minister said that there is no necessary inference that Ms Pearson’s evidence about her dogs was overlooked by the Tribunal, as opposed to regarded as of little significance. In the alternative the Minister contended that, even if the Tribunal had overlooked that evidence, it was insignificant and not material to the Tribunal’s decision.

Consideration

91    Ms Pearson contended, and the Minister did not dispute, that there were numerous references to her two dogs in the evidence and material before the Tribunal. The first issue that arises is whether the Tribunal in fact overlooked the evidence concerning the two dogs, as Ms Pearson contends, or whether an inference can be drawn that the Tribunal took the material into account but considered that the claim was not sufficiently significant to require the Tribunal to refer to it expressly.

92    It is convenient first to set out the relevant principles.

93    In Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531 at [67]-[69] Colvin J (with whom Reeves and Rangiah JJ agreed) observed that:

67    … s 501CA imposes an obligation to invite representations and then form a view as to whether the Minister is satisfied as to whether there is “another reason” to revoke the cancellation of a visa. So, if representations are made, there is a statutory obligation upon the Minister to consider whether to exercise the power conferred by s 501CA(4). In order to properly discharge that obligation, the Minister must not overlook the representations. A state of satisfaction that is formed without considering the representations is not a state of satisfaction of a kind that the Migration Act requires.

68    Further, it is not enough to have regard to only some of the significant matters raised in the representations. In such a case the obligation to form the state of satisfaction by reference to the representations would also not be met. So, the obligation to consider extends to significant matters being those that may with other matters carry sufficient weight or significance to satisfy the Minister to revoke the cancellation. Further, those matters must be made manifest as significant matters by the manner in which they are expressed in response to the invitation that the Minister is required by s 501CA(3) to extend.

69    All of which does not mean that each matter in the representations is a mandatory relevant consideration such that a failure to bring the consideration to account in performing the statutory task (that is, in forming the required state of satisfaction) would be a jurisdictional error. Such an approach would elevate a requirement to consider significant matters raised in representations to an obligation to form the required state of satisfaction by giving weight to each of the considerations raised in the representations.

94    In EVK18 at [10] a Full Court of this Court (Flick, Griffiths and Moshinsky J) observed that the Minister must properly give consideration to representations made pursuant to s 501CA(4) of the Act and that those representations made in response to an invitation under s 501CA(3) “are, ‘viewed as a whole, a mandatory relevant consideration, but not every statement in the representations can be so described’”, quoting from Minister for Home Affairs v Omar (2019) 272 FCR 589 at [34(e)]. At [14] their Honours said:

In GBV18 the Full Court referred to the need for a “representation” to “clearly express” a claim: (2020) 274 FCR 202 at [32(d)]. In seeking to identify those “representations” which required the consideration of the decision-maker, the Court there also used a number of like expressions such as a “clearly articulated and substantial or significant representation” and “a substantial or significant and clearly articulated claim” (GBV18 [2020] FCAFC 17 at [32(e) and (f)]). The same Full Court in AXT19 v Minister for Home Affairs [2020] FCAFC 32 subsequently returned to the importance of identifying those claims which may be found within a “representation” made pursuant to s 501CA(3) which attracted the need for consideration as follows:

[56]    Considerable caution needs to be exercised in resolving an argument that a claim has been made in sufficiently clear terms that it should in turn be considered by the Tribunal. The greater the degree of clarity in which a claim has been made and advanced for consideration, the greater may be the need for the Tribunal to consider the claim in clear terms. Conversely, the more obscure and less certain a claim is said to have been made, the less may be the need for the Tribunal to consider the claim. The need for caution arises lest a reviewing Court is propelled from its sole task of undertaking judicial review and into the murky waters of impermissible merits review. The task of a court undertaking judicial review is not to elevate a statement that may have been made in passing by a claimant into a clearly articulated claim in need of resolution. For a Court undertaking judicial review to engage in such a process has all the dangers of the Court resolving a different factual case to the one advanced to the Tribunal and thereby trespassing into merits —and not judicial — review.

The balance that is sought to be struck is to recognise that a “representation” which has been made pursuant to s 501CA(3) may contain a myriad of different claims and assertions and should not be dissected for the purpose of forensically and opportunistically subsequently seizing upon a failure to address a particular “statement” that may be found within a representation as exposing legal error (cf. BHA17 (2018) 260 FCR 523 at [139]), whilst at the same time recognising that a “representation” may not be drafted with the skill of an experienced legal practitioner.

95    The question of whether a claim amounts to a “clearly articulated and substantial or significant representation” so as to give rise to an obligation on the Tribunal to consider and address it has been described as a “fact sensitive inquiry”: Kwatra v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 58 at [34].

96    As acknowledged by Ms Pearson, she did not make an express claim or submission that separation from her two dogs, Walter and Oscar, was a factor to be considered in considering the extent of impediments if she was removed from Australia in her statement of facts, issues and contentions (SFIC) or in her oral submissions. But Ms Pearson says that the obligation on the Tribunal was to consider the representations she had in fact made based on the evidence which was before it. In particular she relied on the following:

(1)    her CV attached to the personal circumstances form responding to the notice of revocation of her visa under s 501(3A) of the Act dated 19 August 2019 included as one of her personal interests that her “two Maltese X shih zhu dogs (Walter and Oscar) are like my children and also my best friends”;

(2)    her statement dated 23 August 2019 provided to the Department which included:

I have 2 children but of the canine family in Sydney. Oscar is now 13yrs and Walter is 10yrs. Before coming to custody I had spent every single day with them since they were 6 years old and I can’t explain I guilt and regret I suffer for letting them down. I have photos on my wall but cannot look at them without tears coming to my eyes. They have been like special needs dogs in the sense they have been there through it all and I truly don’t know if I would have made it at times without their loyalty and healing abilities. They are wise old souls and I owe them so much and the idea of not having them back in my life is unbearable. We are inseparable.

…

… If I am sent back to NZ I will be left with nothing. I will lose all my belongings including sentimental objects and memories as I will have no money to get anything sent over. This unfortunately also includes my 2 dogs and I don't know if I have the strength to return and lose them also.

The latter statement was repeated in Ms Pearson’s solicitor’s submission to the Department in support of her application for revocation of the Cancellation Decision;

(3)    a character reference from Larissa Ala dated 30 August 2019 referred to Ms Pearson creating “a life in Australia with her 2 pet dogs”;

(4)    a letter dated 24 August 2019 from Ms Pigliapoco in support of the application for revocation of the Cancellation Decision refers to Ms Pearson having “two gorgeous little dogs who would also be without an owner if she was to leave the country” and that “these dogs are like family to her”. Ms Pigliapoco’s letter was referred to in Ms Pearson’s SFIC relied on before the Tribunal (at [54]) and in her own statement provided to the Tribunal (at [12]) and a copy of it was annexed to that statement;

(5)    Ms North’s report in which Ms North observed (at [38]) that Ms Pearson identified that she had two pet dogs and that it was unlikely that she would be able to transport them due to financial constraints which would be devastating to her as they were a part of her family; and

(6)    documents produced to the Tribunal by the Local Court of New South Wales under summons:

(a)    a document titled “Re Kate Pearson’s notes for sentencing” dated 12 October 2016 in which Ms Pearson’s says that she is “a proud owner/mother for 8 years now of 2 beautiful Shih tzu cross dogs: Oscar and Walter. They are my children and I can’t imagine life without them”; and

(b)    a NSW Department of Corrective Services Case Note Report for Ms Pearson dated 5 June 2018 which notes that Ms Pearson has two dogs “whom she is stressed what to do with once she enters rehab or possible custody”.

97    As noted at [92] above, the Minister does not suggest that representations were not made about Oscar and Walter. Based on the material before the Tribunal it was apparent that Ms Pearson had a close bond with Oscar and Walter; they were like her children; she cannot imagine life without them; and it seems that they would be left in Australia if she was removed. The question is whether those representations were sufficiently significant or relevant to require the Tribunal to expressly consider them as part of its consideration of the impediments to Ms Pearson’s removal or whether the inference urged by the Minister can be drawn.

98    I am satisfied that the impact of separation from Walter and Oscar was a sufficiently clearly articulated claim. As I have already observed, and as demonstrated by the matters set out at [97] above, the fact of ownership of the two dogs, that she considered them her family and that she would be upset by her separation from them were referred to in parts of the evidence that was before the Tribunal. The material was not vague or fleeting. The same matters, namely Ms Pearson’s connection to her two dogs and the impact of removal from them, was raised by a number of different witnesses who had observed Ms Pearson as well as, significantly, in Ms North’s report and Ms Pearson’s own statement. The question of separation from Oscar and Walter went to the issue of impediments to removal from Australia and whether there was another reason to revoke the Cancellation Decision. The Tribunal ought to have both considered and addressed that claim. It may have been open for the Tribunal to find that Ms Pearson could have arranged to have the dogs transported to New Zealand but that was a matter about which the Tribunal should have made a finding by reference to the available evidence.

99    I would not infer that the Tribunal considered the material and took it into account but formed the view that it lacked sufficient significance or relevance such that it was not required to refer to it in its reasons. Rather, the fact that the representations, which were both sufficiently significant in the context of all of the representations made in support of revocation and made with sufficient clarity, were not referred to and addressed in the Tribunal’s decision record at all leads me to draw the contrary inference. That is, that the Tribunal did not consider the material. Unlike its consideration of risk to the Australian community (see [75]-[83] above), the Tribunal did not refer to the claim about the two dogs at all in its reasons, as distinct from merely omitting reference to specific material relating to that claim. No inference of the kind drawn in relation to ground 3 can be drawn here.

100    That being so, the next question that arises is whether the Tribunal’s failure to consider the claim about the two dogs was material to its decision not to revoke the Cancellation Decision.

101    Ms Pearson contended that the failure to consider her relationship with her dogs as an impediment to removal was material. She referred to Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at [48] and said that her relationship with her dogs was not of marginal consideration: it was a claim properly made in her representations to the Department; was treated as an impediment to her return by the delegate; and is on par with the inability to transport her computer equipment and her relationship with Mr Farrow and her friends as a matter to be taken into account and which could affect the outcome.

102    As explained by the majority (Kiefel CJ, Gageler, Keane and Gleeson JJ) in MZAPC v Minister for Immigration and Border Protection [2021] HCA 17 (MZAPC) at [2]:

Materiality was subsequently explained in Minister for Immigration and Border Protection v SZMTA to involve a realistic possibility that the decision in fact made could have been different had the breach of the condition not occurred. Existence or non-existence of a realistic possibility that the decision could have been different was explained to be a question of fact in respect of which the plaintiff in an application for judicial review of the decision on the ground of jurisdictional error bears the onus of proof.

(Footnote omitted.)

103    At [37]-[39] of MZAPC their Honours said the following about the content of materiality:

37    Subsequently, in CNY17 v Minister for Immigration and Border Protection, Kiefel CJ and Gageler J referred to the determination of materiality by a court as involving "a question of counter-factual analysis to be determined by the court as a matter of objective possibility as an aspect of determining whether an identified failure to comply with a statutory condition has resulted in a decision that has in fact been made being a decision that is wanting in statutory authorisation". The same point was made in different language by the Full Court of the Federal Court in BDY18 v Minister for Immigration and Border Protection, where it said that "[m]ateriality is concerned with the significance of the failure to conform to the statutory task entrusted to the decision-maker" and that "[t]he inquiry is backward looking and concerns what the decision-maker did in the particular case".

38    The counterfactual question of whether the decision that was in fact made could have been different had there been compliance with the condition that was in fact breached cannot be answered without determining the basal factual question of how the decision that was in fact made was in fact made. Like other historical facts to be determined in other civil proceedings, the facts as to what occurred in the making of the decision must be determined in an application for judicial review on the balance of probabilities by inferences drawn from the totality of the evidence. And like other counterfactual questions in civil proceedings as to what could have occurred — as distinct from what would have occurred — had there been compliance with a legal obligation that was in fact breached, whether the decision that was in fact made could have been different had the condition been complied with falls to be determined as a matter of reasonable conjecture within the parameters set by the historical facts that have been determined on the balance of probabilities.

39    Bearing the overall onus of proving jurisdictional error, the plaintiff in an application for judicial review must bear the onus of proving on the balance of probabilities all the historical facts necessary to sustain the requisite reasonable conjecture. The burden of the plaintiff is not to prove on the balance of probabilities that a different decision would have been made had there been compliance with the condition that was breached. But the burden of the plaintiff is to prove on the balance of probabilities the historical facts necessary to enable the court to be satisfied of the realistic possibility that a different decision could have been made had there been compliance with that condition.

(Footnotes omitted. Emphasis in original.)

104    Ms Pearson’s claim about separation from her two dogs was one of a number of matters which she said were an impediment to her removal from Australia. In considering the question of impediments to removal overall the Tribunal found that it weighed “slightly” in favour of revoking the Cancellation Decision. In SZMTA at [48] Bell, Gageler and Keane cautioned that “the court must be alive to the potential for a document or information, objectively evaluated, to have been of such marginal significance to the issues which arose in the review that the Tribunal’s failure to take it into account could not realistically have affected the result”. It is difficult to see how Ms Pearson’s relationship with her two dogs could be of more than marginal significance such that it could have affected the Tribunal’s conclusion that impediments to her removal was a factor that weighed slightly in her favour. That is particularly so given the nature of the other matters to which the Tribunal had regard in reaching that conclusion.

105    In that regard, the Tribunal considered Ms Pearson’s relationship with and possible support from her parents, her education, her ability to obtain employment, the effect of removal on her mental health, any risk she might face from her ex-partner in New Zealand, at whose hands she had experienced domestic violence prior to her departure, the effect of the COVID-19 pandemic in New Zealand, her access to Victim Support Services, that she could not afford to move her computers to New Zealand which could affect her ability to obtain employment and her separation from her friends and partner including loss of the possibility of becoming a parent. Each of those matters could have a significant impact on her ability to subsist at a practical and psychological level. They were, by comparison to the role of her dogs, of a much higher priority. Having considered those factors, the Tribunal reached its conclusion that Ms Pearson “has some impediments to re-establishing herself in New Zealand” but found that those impediments were not insurmountable such that the factor weighed slightly in favour of revoking the Cancellation Decision.

106    Ms Pearson has not established on the balance of probabilities that a different conclusion could have been reached in relation to the impediments to removal and, it follows, in relation to the Tribunal’s ultimate decision not to revoke the Cancellation Decision. Given the nature of the matters which the Tribunal did consider, it is not possible to conclude that Ms Pearson’s separation from her two dogs could be of more than marginal significance so as to lead to a possibility of a different outcome. That is not to say that Ms Pearson’s two dogs are not of significance to her but simply to recognise that, in the overall scheme of the factors considered by the Tribunal, their role could only ever be marginal and, even if considered, the Tribunal could not have realistically reached a different conclusion.

107    For those reasons ground 4 is not made out.

CONCLUSION

108    Ms Pearson has failed to make out any of her grounds. Accordingly her application should be dismissed. As she has been unsuccessful she should pay the Minister’s costs as agreed or taxed.

109    I will make orders accordingly.

Associate:

Dated:    22 July 2021