Federal Court of Australia

Filipovich v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 846

ORDERS

THE COURT ORDERS THAT:

1.    The application for judicial review is dismissed.

2.    The Applicant is to pay the First Respondent’s costs to be taxed in default of agreement.

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

REASONS FOR JUDGMENT

WHITE J:

1    The applicant is a 31 year old national of New Zealand who came to Australia in January 2003 when he was 13 years old. With the exception of one brief return to New Zealand, he has resided in Australia continuously ever since.

2    On 6 November 2019, a delegate of the Minister cancelled the applicant’s Special Category Class TY Subclass 444 (Temporary) Visa, acting pursuant to s 501(3A) of the Migration Act 1958 (Cth) (the Act). The delegate did so because the applicant did not pass the character test as defined in s 501(6) of the Act by reason of having been sentenced to a term of imprisonment of two years on 23 August 2019, which the applicant was then serving. He was released from prison on 23 April 2020.

3    On 31 August 2020, acting under s 501CA(4) of the Act, a delegate of the Minister refused to revoke the cancellation of the visa. The applicant sought review of that decision in the Administrative Appeals Tribunal (the Tribunal) but was unsuccessful: Filipovich v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 4697.

4    On 14 January 2021, the applicant filed an application for an extension of time in which to commence proceedings for judicial review of the Tribunal decision. That extension was granted by consent on 15 March 2021 and the applicant filed his application on 22 March 2021.

5    The applicant’s criminal history commenced in 2007 and culminated in the sentence imposed on him on 23 August 2019 of two years imprisonment for the offence of inflicting grievous bodily harm. Several of his offences have involved violence. Of particular relevance to the present application is that the applicant has been found guilty on three occasions of the offence of contravening a domestic violence order. The victim of those offences was his own mother.

The review in the Tribunal

6    The Tribunal could revoke the applicant’s visa cancellation only if satisfied that the applicant did pass the character test as defined in s 501 of the Act or that there was “another reason” why the cancellation decision should be revoked – see s 501CA(4) of the Act. Plainly, the applicant did not pass the character test. Accordingly, his evidence and submissions in the Tribunal were directed to establishing that there was “another reason” for the revocation of the cancellation of the visa.

7    In carrying out the review, the Tribunal recognised that it was obliged to comply with Direction No. 79 issued by the Minister on 20 December 2018 pursuant to s 499(1) of the Act: Minister for Home Affairs v HSKJ [2018] FCAFC 217; (2018) 266 FCR 591 at [41].

8    Relevantly for the purposes of the applicant’s present application, cl 7 in Direction No. 79 required the Tribunal to take into account the considerations in Part C in order to determine whether the mandatory cancellation of his visa be revoked. Part C identified three primary considerations:

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

(b)    the best interests of minor children in Australia; and

(c)    the expectations of the Australian community.

9    The content of these obligations is elaborated in cl 13 of Direction No. 79.

10    Clause 14 then identified five “other considerations” which the Tribunal was required to take into account “where relevant”. These included the strength, nature and duration of the applicant’s ties in Australia (the content of which is elaborated in cl 14.2) and the impact on members of the Australian community, including victims (the content of which is elaborated in cl 14.4). The relevant portions of cl 14 provide:

14. Other considerations – revocation requests

(1)    In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):

a)    International non-refoulement obligations;

b)    Strength, nature and duration of ties;

c)    Impact on Australian business interests;

d)    Impact on victims;

e)    Extent of impediments if removed.

…

14.2 Strength, nature and duration of ties

(1)    The strength, nature and duration of ties to Australia. Reflecting the principles at 6.3, decision-makers must have regard to:

a)    How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:

i.    less weight should be given where the non-citizen began offending soon after arriving in Australia; and

ii.    More weight should be given to time the non-citizen has spent contributing positively to the Australian community.

b)    The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non-citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).

…

14.4 Impact on victims

(1)    Impact of a decision not to revoke on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims where that information is available and the non-citizen being considered for revocation has been afforded procedural fairness.

11    The Tribunal gave lengthy reasons for its decision which were structured by reference to Part C in Direction No. 79. It addressed each of the “Primary” and “Other” considerations in turn. The Tribunal concluded that Primary Considerations A and C (the protection and expectations of the Australian community) weighed heavily in favour of non-revocation of the cancellation of the visa whereas Primary Consideration B (the best interests of minor children in Australia) weighed moderately in favour of its revocation. Having considered the “Other” considerations, the Tribunal concluded, at [242]:

I do not consider that the totality of the weight attributable to the relevant Other Considerations (b) and (e) combined, even when conjoined with the weight I have attributed to Primary Consideration B, outweigh the significant combined and determinative weight I have attributed to Primary Considerations A and C.

The grounds of judicial review

12    The applicant contends that the Tribunal’s decision is affected by a single jurisdictional error, namely, that the Tribunal misunderstood and misapplied cl 14.4(1) of Direction No. 79. The applicant’s particulars B, C and D indicate the error he attributes to the Tribunal:

B.    Paragraph 14.4(1) of Ministerial Direction 79 require[d] the Second Respondent to consider the “[i]mpact of a decision not to revoke on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims…”

C.    In determining whether to exercise its discretion to revoke the mandatory cancellation of the Applicant’s visa, the Second Respondent found that Paragraph 14.4 only required and/or authorise[d] the Second Respondent to have regard to the evidence from victims adverse to the Applicant.

D.    There is nothing in the wording of paragraph 14.4(1) that indicates that it is solely concerned with impacts on victims that weigh against revocation, to the exclusion of impacts on victim[s] which might weigh in favour of revocation. In finding otherwise, the [Tribunal] proceeded according to an incorrect understanding of the law.

13    In effect, the applicant contends that the Tribunal proceeded on a misconception of what was required by cl 14.4(1), with the consequence that it did not apply it correctly, thereby committing the form of jurisdictional error referred to in Re Patterson; Ex parte Taylor [2001] HCA 51; (2001) 207 CLR 391 at [196] (Gummow and Hayne JJ); Graham v Minister for Immigration and Border Protection [2017] HCA 33; (2017) 263 CLR 1 at [57] (Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ).

14    The applicant abandoned reliance on Particular E in his originating application.

What the Tribunal said about cl 14.4(1)

15    In the Tribunal, counsel for the applicant (who was also his counsel in this Court) contended that cl 14.4(1) required consideration of the impact on the applicant’s mother of his removal from Australia, she being the victim of his offences of contravening a domestic violence order. In particular, counsel submitted that cl 14.4(1) required the Tribunal to have regard to the impact on the mother of being deprived of the domestic assistance and support of the applicant which she would otherwise have if he is permitted to remain in Australia, at [226]. Counsel characterised this as a “significant and adverse impact”, with the consequence that this consideration should weigh strongly in favour of revocation of the cancellation of the visa.

16    In relation to these submissions, the Tribunal said:

[227]    I respectfully disagree with such a configuration and application of Paragraph 14.4(1) of the Direction for the purposes of ascertaining any weight attributable to it. To my mind, Paragraph 14.4(1) looks for adverse impacts that could be experienced or suffered by victims or their families of a given applicant’s offending. For example, the Paragraph does capture a situation where an Applicant has committed an offence against a member of the Australian community, and the victim has clearly expressed discomfort at the prospect of again confronting that applicant in an everyday life context. By contrast, it does not, to my mind, cover a situation where the same victim expressed apprehension, displeasure or concern about financial consequences arising from an applicant’s removal. In the latter scenario, and applied to the instant facts, any adverse impact upon the Applicant’s mother and her capacity to sustain herself is relevant to an analysis of weight attributable to Other Consideration (b) involving the strength, nature and duration of the applicant’s ties to, in this case, her.

[228]    I do not think the draftsperson of Paragraph 14.4(1) of the Direction intended this Paragraph to attract weight in circumstances where victims of offending wish for perpetrators to remain in Australia.

(Emphasis in the original)

17    In effect, the Tribunal found that cl 14.4(1) does not encompass adverse effects on victims of offenders not being permitted to remain in Australia. Instead, such impacts should be considered under cl 14.2(b).

18    On the hearing of the application in this Court, counsel for the applicant contended that “a plain reading of paragraph 14.4, giving its words their ordinary and grammatical meaning, does not give rise to a construction which would only allow the consideration to weigh adversely against a non-citizen”. Counsel sought to support this submission by reference to cl 8(3) in Direction No. 79 which, in providing for the way in which relevant considerations are to be taken into account, states:

(3)    Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.

19    The effect, counsel submitted, is that the impacts considered under cl 14.4 may weigh for or against revocation of the visa.

Judicial consideration of cl 14.4(1)

20    At the hearing, counsel for both parties made a number of submissions by reference to the decision of Colvin J in CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2020] FCA 1842 and to the decision of the Full Court (Rares, O’Callaghan and Jackson JJ) on appeal: CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 69.

21    While the judgment was reserved, the Full Court (Collier, Markovic and Anastassiou JJ) delivered judgment in DKN20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 97. The parties were invited to, and did, make supplementary written submissions with respect to that decision.

22    It is accordingly convenient to commence with reference to those decisions.

CGX20 at first instance

23    In CGX20 at first instance, the applicant had contended that the Tribunal had erred in applying cl 14.4(1) by taking into account irrelevant information, that being information which it had considered in relation to Primary Consideration A (the protection of the Australian community from criminal or other serious conduct, the best interests of minor children in Australia, and the expectations of the Australian community). In the assessment of Primary Consideration A, the Tribunal had considered, amongst other things, the nature and seriousness of the applicant’s past offending, the nature of harm to individuals and to the Australian community should the applicant engage in further criminal conduct, and the risk of the applicant re-offending. It had concluded that these considerations weighed heavily against revocation of the cancellation of the visa. The applicant had submitted that those matters were irrelevant to an assessment under cl 14.4(1) of the impact on members of the Australian community and on the offender’s victims of a decision “not to revoke” the cancellation, ie, a decision in effect that the non-citizen not remain in Australia. This was so even though the assessment in Primary Consideration A of the likely effect on victims had been at a level of abstraction and without reference to particular victims. The applicant had also submitted that the Tribunal’s consideration of the same matters with reference to cl 14.4(1) had involved a form of double counting of matters against him.

24    In rejecting the applicant’s submissions, the Tribunal had held, amongst other things, that cl 14.4(1) was to be understood as directing it to consider the impact of revocation of the cancellation, rather than the impact of non-revocation of the cancellation. It seemed to proceed on the understanding that cl 14.4(1) was directed to the adverse effects on victims if the non-citizen was permitted to remain in Australia.

25    Colvin J accepted, at [11], that it is not uncommon for the victim of a crime to be a family member or someone with a close association with the offender, with the consequence that the removal of the offender from Australia may cause distress to those victims. His Honour also accepted that it is possible that family member victims will support applications for revocation of the cancellation of a visa, at [11]. In doing so, his Honour disagreed with the Tribunal’s view that the non-revocation of the cancellation of a non-citizen’s visa would always have a positive impact for victims, referring to Viane v Minister for Immigration and Border Protection [2018] FCAFC 116; (2018) 263 FCR 531 at [32] and the example there given.

26    Colvin J construed cl 14.4 in the context of Direction No. 79 as a whole, at [13]. His Honour considered it odd that cl 14.4(1) would require consideration of the impact of a decision not to revoke the cancellation of the visa on (relevantly) victims of the non-citizen’s criminal behaviour as a way of requiring consideration of the impact on victims if a non-citizen is allowed to remain in Australia. Colvin J concluded that the clause required consideration of the impact on victims if the person remains in Australia rather than the impact on them of the person being removed from Australia, at [12]-[21]. This meant that the inclusion of the word “not” in cl 14.4(1) should be regarded as anomalous and that the clause be construed as though that word was not included – see the reasons at [19]-[20].

27    His Honour then went on to reject CGX20’s submission that there had been an inappropriate double counting by the Tribunal, at [39].

CGX20 in the Full Court

28    On the appeal, the Minister did not embrace the construction of cl 14.4(1) adopted by Colvin J. However, the Full Court held in an ex tempore decision that Colvin J had been correct in treating the word “not” in cl 14.4 as “an error or surplusage that should be ignored”, at [21], [23].

29    The effect of the construction endorsed by the Full Court is that cl 14.4 requires decision-makers to consider the impact which a revocation decision (ie, a decision allowing a non-citizen to remain in Australia) would have on the victims of the non-citizen’s offences. On the hearing of the present application, counsel for the Minister said that the Minister “hasn’t ascertained a fixed position on the correctness of Colvin J’s reasoning”, but accepted that the effect of the Full Court decision in CGX20 is that it should be followed by the Court in the present case.

DKN20 v The Minister

30    In DKN20, the Full Court adopted the reasoning of Colvin J in CGX20, at [37]. Their Honours went on to say, at [37], that, on the proper construction of cl 14.4 in Direction No. 79, there had been no scope for the Tribunal to consider under cl 14.4 the beneficial impact of revocation of the cancellation of a visa on the family member victim of the appellant’s offences on which DKN20 relied.

31    The Full Court also held, at [40]-[43], that it was not necessary for the Tribunal to consider the same matters twice, that is, under both cl 14.2 and cl 14.4. Their Honours relied on Hodgson v Minister for Immigration and Border Protection [2017] FCA 1141 at [40]; RZSN v Minister for Home Affairs [2019] FCA 1731 at [67]; and Bale v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 646. In the last of these cases, Perram J held at [26], that “[w]here a matter is relevant to two or more mandatory relevant considerations, a decision-maker is not usually required to take the matter into account repetitiously”. His Honour had also noted that this proposition could be “outflanked” if there was some aspect of the immediate family member, as a victim, which was distinct from the evidence put forward as immediate family member.

Consideration

32    It is convenient to commence by addressing the parties’ submissions concerning the issue of whether cl 14.4(1) requires consideration only of the adverse impacts of revocation of the visa cancellation. Their submissions at the hearing were principally directed to the effect of CGX20 at first instance, in particular, whether Colvin J had concluded that cl 14.4(1) contemplates only the adverse impacts of revocation of the cancellation of the non-citizen’s visa on his or her victims being considered and, relatedly, that the negative impacts on family member victims be considered under cl 14.2.

33    As cl 14.2(1)(b) is concerned with the effect of non-revocation of the cancellation of the non-citizen’s visa (which will result in the non-citizen’s removal from Australia), I will refer to this as the effect of the removal of the non-citizen. Likewise, as cl 14.4(1), as construed in CGX20, is concerned with the effect of revocation of the visa cancellation (which will mean that the non-citizen can remain in Australia), I will refer to this as the effect of the non-citizen remaining in Australia.

34    Counsel for the Minister submitted that Colvin J had found that cl 14.4 was concerned only with the negative impacts on victims of the non-citizen’s offending if the non-citizen remains in Australia and that cl 14.2 is concerned with the negative effects on the non-citizen’s immediate family if he or she is removed from Australia. Counsel for the applicant disputed that that was so. Some of the parties’ submissions brought to mind the adage about not construing words in judgments as if they are provisions in a statute: Re Queensland Electricity Commission; Ex parte Electrical Trades Union of Australia [1987] HCA 27, (1987) 72 ALR 1 at 6; Scott v Davis [2008] HCA 52, (2008) 204 CLR 333 at [108]; Ogden Industries Pty Ltd v Lucas [1970] AC 113 at 127.

35    There are some indications in the reasons of Colvin J which provide support for the Minister’s submissions. His Honour had noted that a decision to allow a non-citizen to remain in Australia may have positive or negative effects on victims and that in the case of family member victims, the effect may be positive, at [11]. However, his Honour said at [20]:

For those reasons, cl 14.4 should be read in the manner expressed by the Tribunal and there was no error in approaching the present case in that way. What might be described as negative consequences for family members who were also victims of the offending if the person was not allowed to remain in Australia were matters to be considered under other aspects of Direction 79.

(Emphasis added)

36    On my understanding, it is not altogether clear that his did Honour conclude that the negative consequences for family member victims of the non-citizen’s removal, and the positive consequences for them of the non-citizen remaining, may be considered only under other provisions and not at all under cl 14.4(1).

37    However, it is not necessary to consider that issue further because, as already noted, the Full Court in DKN20 found that there was “no scope” in cl 14.4 for the Tribunal to consider the impact on a family member victim. It is not altogether clear, with respect, whether the Full Court reached that conclusion because it regarded the impact on family members as a matter to be addressed under cl 14.2(1)(b), or because it considered that cl 14.4(1) does not permit consideration of the positive impacts on victims of a revocation of the cancellation.

Consideration of positive impacts under cl 14.4(1)

38    Direction No. 79 and, relevantly, Part C of the Direction, should be construed as a whole. The evident intention of the Direction is to ensure that the decision-makers considering whether the mandatory cancellation of a visa should be revoked under s 501CA(4) of the Act do consider, at the least, the matters enumerated in Part C (cl 7(1)(b)), that they do so having regard to the Objectives, General Guidance and Principles stated in cl 6, and that they do so in the manner stated in cl 8. The effect is to require account to be taken of the interests of the Australian community generally and consideration to be given to the impact of the decision on particular persons and interests. It is pertinent that cl 14 in Direction No. 79 is structured by reference to the interests to be considered, rather than by reference to the effect of the non-visa holder’s removal from, or remaining in, Australia, as the case may be. In the case of cl 14.2(1)(b), it is (relevantly) the familial relationship which requires the effect on immediate family members of the visa holder’s removal on the persons to be considered. In the case of cl 14.4(1), it is the status of the persons as victims of the non-citizen’s crimes which requires the impact on them of the revocation of the cancellation to be considered. In the case of cl 14.3, it is the impact on Australia’s business interests which is to be considered.

39    The factual circumstances in which Direction No. 79 may have to be applied are likely to be diverse. The Direction requires decision-makers to engage, in the circumstances of the particular case, in a process of evaluation in which some of the mandatory considerations may weigh in favour, and some against, the revocation of the cancellation of the visa (cl 8(3)).

40    It is also evident that the Direction contemplates that there may be some overlap in the matters informing the mandatory considerations. For example, there may be overlap between the matters in Primary Consideration B (the best interests of minor children in Australia) and Other Consideration B (the effect of non-revocation of the cancellation of the visa on the non-citizen’s immediate family) and there may be overlap between Primary Consideration A (protection of the Australian community from criminal or other serious conduct) and Other Consideration 14.4(1) (the impact of members of the Australian community and on victims of the non-citizen’s criminal behaviour of a decision to permit the non-citizen to remain in Australia). Other examples could be given. To my mind, this points against Direction No. 79 contemplating a neat compartmentalisation of factual matters into one mandatory consideration to the exclusion of another.

41    There is no reason to suppose that Direction No. 79 contemplates that the individual matters informing each of the mandatory considerations in a given case will point uniformly toward or against revocation of the cancellation. Some matters bearing on each mandatory consideration may point in favour of revocation, some against, and some be neutral. The present case provides an example: the impact on some victims of the applicant remaining in Australia may be adverse while for his mother it may be positive. More generally, the best interests of minor children in Australia to which Primary Consideration B refers may have a differentiated application to the two or more children associated with the non-citizen, and the impact on Australian business interests to which Other Consideration C refers may also be differentiated.

42    In my view, all these matters indicate that Direction No. 79 contemplates some flexibility and nuance in its application. They also indicate, in my opinion, that it would not be appropriate to understand Direction No. 79 as contemplating that the matters bearing upon the required considerations are in some way to be compartmentalised so as necessarily to be considered relevant to only one of the mandatory considerations. But nor does it require the mandatory considerations to be addressed mechanistically, without regard to the decision-makers findings concerning an earlier mandatory consideration.

43    Clause 14.2 requires decision-makers to consider (relevantly) the effect of removal of the non-citizen from Australia on the members of his or her immediate family. These must be considered as part of a more generic subject matter, namely, the character of the non-citizen’s family or social links with Australian citizens and those entitled to remain in Australia indefinitely.

44    It is to be expected that, in most cases, immediate family members will perceive such effects as negative but, in my view, there is no indication that cl 14.2 permits consideration only of negative impacts. There may be cases in which there will be no negative effects and, probably rarely, cases in which the evidence may indicate that the effect of the removal on immediate family members may be positive. But, at the least, the Tribunal’s satisfaction that immediate family members would not be adversely affected would be relevant, just as would the Tribunal finding that they would be so affected.

45    Clause 14.4(1) requires consideration of the impact of the non-citizen remaining in Australia on members of the Australian community, including victims and family members of the victims. Again, one would expect that impacts of that kind will commonly be negative (and that may account for cl 14.4 requiring the impact on them to be considered) but I am unable to discern a textual indication in cl 14.4(1) that the impacts to be considered may be only of that kind. I say that while having regard to the fact that cl 14.4(1) uses the term “impact”, and not the term “effect” used in cl 14.2(1)(b).

46    The term “impact” is capable of encompassing effects which are either positive or negative. By way of example, in the context of the current pandemic, it is not uncommon for people to speak of the likely “impact” on the community of widespread vaccinations. In the context of cl 14.4(1), it would be curious if Direction No. 79 was understood as requiring consideration of the impact on members of the Australian community, including victims, of the non-citizen remaining in Australia (when that information is available), but then as requiring those impacts found to be positive to be ignored.

47    In my view, construing cl 14.4(1) without the word “not” and therefore as requiring consideration of the impact of the non-citizen remaining in Australia does not imply anything about the character of the impacts which may be considered.

48    As Colvin J noted in CGX20 at [11], there may well be cases in which victims of the non-citizen’s criminal behaviour may wish the non-citizen to remain in Australia and will support the revocation application. The modern day counterpart of the father of the Prodigal Son in the Biblical parable may be another example. There may also be non-immediate family member victims of the non-citizen’s criminal behaviour who will be beneficially affected if the non-citizen is permitted to remain in Australia. There may be victims of financial offences who will be denied any prospect of reparation if the person is removed. Persons in these categories would not be considered under cl 14.2(b). I am unable to discern an indication in Direction No. 79 to the effect that the impact on such persons may not be considered. More particularly, I am unable to discern an indication that the impact on such persons is not within the scope of the cl 14.4 mandatory consideration.

49    What Direction No. 79 does require is that all of the mandatory considerations be addressed and evaluated as matters of substance at some stage (in the case of the Other Considerations, when they are relevant). When matters have been addressed and evaluated in relation to one mandatory consideration, the same matters do not have to be addressed again with reference to a later mandatory consideration. Decision-makers are able to rely on their earlier consideration of the very same matters, unless of course, there is some additional feature which was not addressed on the first consideration: Bale at [26].

50    I respectfully agree with the following passage in the reasons of Anderson J in RZSN:

[60]    Relatedly, the fact that such a decision-maker does not refer to a consideration prescribed by Direction No. 65 in the precise compartmentalised sequence of headings set out in that instrument is not determinative of whether the decision-maker has lawfully considered, construed and applied that consideration. Although it will frequently be convenient, and indeed desirable, for the decision-maker’s reasons to reflect the headings and sub-headings in Direction No. 65, the failure to consider a relevant matter under its allotted heading is not fatal to the valid exercise of the decision-maker’s jurisdiction. The question whether the decision-maker has lawfully considered, construed and applied such a consideration is a matter to be inferred from the decision-maker’s reasons as a whole. The existence and content of headings in the decision-maker’s reasons will be relevant, but they will not be determinative.

51    Accordingly, unconstrained by authority, I would conclude that the Tribunal was in error in concluding that cl 14.4(1) does not “attract weight in circumstances where victims of offending wish for perpetrators to remain in Australia”.

52    However, the Full Court in DKN20 concluded, at [37], that there was no scope in cl 14.4 for the Tribunal to consider the impact on the family member victim. On its face, the decision in DKN20 appears conclusive of the application in the present case and I am unable to discern a basis on which it may be distinguished.

53    I note that the applicant’s supplementary submissions did not seek to engage with [37] in DKN20 or to explain why the Court presently is not bound by it. Counsel did submit that the Full Court had, at [35], referred, without disapproval to the willingness of Jackson J in Meyrick v Minister for Home Affairs [2020] FCA 677, to assume that cl 14.4 permitted consideration of the positive impact on a victim. However, it is plain that the Full Court took a different view.

54    Even if DKN20 is not conclusive of the application, I consider nevertheless that the application must fail. That is because, irrespective of whether the Tribunal misconstrued Direction No. 79 and in particular cl 14.4(1), it did nevertheless apply Direction No. 79 correctly. It considered in some detail, as required by Direction No. 79, the impact which the applicant’s removal from Australia would have on his mother, she being the person on whom the applicant relied for the purposes of cl 14.4(1) and, therefore, the person on whom the applicant relied to make its application “relevant”. The Tribunal did so when addressing cl 14.2(1)(b) – see [217]-[222] of the Tribunal’s reasons. In [217], the Tribunal noted the applicant’s submission that his mother “would be significantly adversely affected by a non-revocation decision”. In [218]-[219], it noted the support and assistance the applicant has provided to his mother, particularly having regard to her mental health, and his intention to resume living with her. In [220], the Tribunal referred to the corroborative evidence from the applicant’s mother on this topic. In [221], the Tribunal noted the Minister’s acceptance that the applicant does have a strong tie to his mother. It concluded its consideration by saying “the strength, nature and duration of the Applicant’s relationships with members of the Australian community, most particularly, his mother, are strong and palpable”, at [222], and found the cl 14.2(1)(b) consideration to weigh in favour of a finding that the applicant be permitted to remain in Australia.

55    In relation to cl 14.4(1), the Tribunal recorded the applicant as having submitted that his removal from Australia would deprive a victim of his offending (his mother) of the domestic assistance and support she would have if he remained in Australia, at [226]. He had characterised this as a “significant and adverse impact”, at [226].

56    Thus, the applicant relied on the same factual matters in relation to cl 14.4(1) as he had for cl 14.1(1)(b). He did not point to some additional evidence which was peculiar to his mother’s status as a victim: cf Bale at [27]. The applicant did not, for example, point to specific needs which his mother now has by reason of being a victim of his assaults, which needs he is personally meeting.

57    It is true, as counsel for the applicant submitted, that cl 14.2(1)(b) is concerned with the effect of the non-citizen’s removal from Australia, whereas 14.4(1) is concerned with the effect of the person remaining in Australia. However, in relation to the effect on the applicant’s mother, the evidence and considerations bearing on these alternatives were, in effect, counterpoints so that consideration of the latter involved necessarily consideration of the former. That this was so is evident from the very manner in which counsel asked questions of the applicant’s mother:

How much would it assist you if Michael was allowed to remain in the Australian community and live with you?

…

[T]here’s, you know, obviously two outcomes that are possible from this hearing. One is that Michael is allowed to return to the community and the other is that he is forced to return to New Zealand. How would it effect you if Michael is forced to return to New Zealand and can’t return to Australia?

The applicant’s mother answered both of these questions by reference to the assistance and support she derived from her son and by reference to what she would lose if he is removed from Australia.

58    In his final submission to the Tribunal, counsel for the applicant said:

We also don’t make any submissions in relation to the effects on the Australian business interests and in circumstances where there is no evidence about the impact on victims expect to the extent that the applicant’s mother appears to be a victim of some of those domestic violence-related offen[ces] and [her] clear intention is for the applicant to remain in Australia.

We would make the submission – and I probably should address this formally – we would make the submission that that consideration weighs in favour of revocation however certainly the applicant’s mother, I don’t think, can be described as the primary victim of the applicant’s most serious offending in terms of the most recent grievous bodily harm. So, while we would submit that that consideration may, on one view, weigh in favour of revocation, it would only do so to a relevantly limited extent in all the circumstances.

…

… I should say, the effect on the applicant’s mother weighs to a limited extent in relation to that consideration about the impact on victims. Certainly it weighs heavily in favour of revocation when it comes to the strength, nature and duration of ties to Australia.

59    In these submissions, the matters to which the applicant’s counsel referred in connection with the effect on the mother of the applicant’s removal from Australia and in relation to the effect on her if he remains in Australia, were the same. Furthermore, the applicant’s counsel did not seek to identify any additional or separate impact on the mother as a victim compared with the effect on her as an immediate family member.

60    In these circumstances, the effect on the applicant’s mother, whether for the purposes of cl 14.2 or cl 14.4, was considered. It would be artificial to conclude otherwise.

61    Counsel for the applicant submitted that cl 14.4(1) required nevertheless consideration of the effect on the applicant’s mother as a victim of his offending, separately from the consideration of the effect of his removal from Australia on her as an immediate family member. He submitted that this was so because cl 14.4 indicated that “victims of offending should be given a privileged place in the decision-making process”, that was so whether or not they were members of the non-citizen’s family, and that there was to be some “cumulative weighting” of the considerations under cl 14.2 and cl 14.4 when the affected family member is also a victim.

62    I do not accept this submission. First, I consider that the notion of “privilege” is inapt in the context of Direction No. 79. It does not bestow a “privilege” on the various persons whose interests it requires to be considered. It indicates only the matters which must be considered in, relevantly, the decision whether to cancel the mandatory revocation of the visa.

63    Secondly, the submission seems to assume that some form of compartmentalisation of the impact on his mother was possible, that is, that there may be some degree of impact on her for the purposes of cl 14.2(b), and some separate degree of impact on her as a victim of his offences for the purposes of cl 14.4(1). That may not reflect a realistic understanding of the nature of human beings or of the operation of Direction No. 79. In relation to the latter, one would expect ordinarily that the effect on the non-citizen’s immediate family member considered under cl 14.2 would be the whole effect of the removal of the non-citizen from Australia on that person. Likewise, one would expect ordinarily that the impact considered for the purpose of cl 14.4(1) would be the whole effect on the victim of the non-citizen remaining in Australia. That is to say, it would be the impact in all its dimensions which would be considered. But whether that be so or not is immaterial presently because the evidence and submissions on which the applicant relied in relation to cl 14.4(1) was the same evidence and submissions on which he had relied for cl 14.2(1)(b).

64    The Tribunal did consider (and accept) the significant effect on the applicant’s mother if the applicant is removed from Australia. Although counsel for the applicant emphasised in his supplementary submissions the statement of Perram J concerning “outflanking”, he did not (apart from the matters to which reference has already been made), suggest that there was any further matter which the Tribunal could have taken into account in considering the effect on the applicant’s mother as a victim of his crimes if he remains in Australia, let alone point to evidence before the Tribunal to support such a matter. The difficulty for the applicant is that to which reference has already been made, namely, that the effect on his mother which was pertinent to cl 14.4(1) was the counterpoint of the effect on her if he is removed from Australia.

65    It was not necessary for the Tribunal to repeat, with reference to cl 14.4(1), the same matters concerning the mother which it had considered with reference to cl 14.2(b) and to make again the finding it had already made: Bale at [26].

66    In short, even if the Tribunal did misunderstand aspects of Part C in Direction No. 79 which it was required to consider (and the decision in DKN20 suggests that it did not), it did nevertheless address the matters required of it by the Direction.

67    Accordingly, I conclude that even if the Tribunal was required by cl 14.4(1) to consider the impact on the applicant’s mother, its reasons indicate that it did so. Accordingly, there was no error in the application of Direction No. 79.

Materiality

68    Even if the Tribunal’s understanding of Direction No. 79 be wrong, and it should, in reference to cl 14.4(1), have had regard to the beneficial effect for the applicant’s mother (if the applicant remains in Australia), the applicant must persuade the Court that the error was material: Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123 at [29]-[30] (Kiefel CJ, Gageler and Keane JJ), at [66]-[72] (Edelman J); MZAPC v Minister for Immigration and Border Protection [2021] HCA 17 at [1]-[3], [39], (Kiefel CJ, Gageler, Keane and Gleeson JJ). That is so because, in order for the breach of an express or implied condition of the conferral of statutory decision-making authority to result in jurisdictional error, an applicant must establish that there is a realistic possibility that the decision in fact made “could have been different” had the breach of the condition not occurred: ibid.

69    Alternatively, if it be enough for the applicant to show that the Tribunal misunderstood the law (in the form of Direction No. 79) which it was to apply, he must still establish that its error was material in order for it to be jurisdictional.

The applicant’s submissions

70    Counsel for the applicant sought to establish the requisite materiality by contending that, if the Tribunal had not erred in the construction of cl 14.4(1), it could have considered cumulatively the effect of non-revocation of the visa cancellation on the applicant’s mother as an immediate family member (under cl 14.2) and as a victim of his offending (under cl 14.4). Had it done so, he submitted that the Tribunal may have found that “the cumulative weight attributed to the adverse impacts of non-revocation on [the applicant’s mother] under both cll 14.2 and 14.4 outweighed the considerations favouring non-revocation”, with the consequence that there was “a more than remote or fanciful chance that the Tribunal’s error deprived the applicant of the possibility of a positive outcome”.

The Tribunal’s reasons

71    The Tribunal considered that, even if it was appropriate under cl 14.4(1) to have regard, additionally, to the effect on the applicant’s mother as a victim of his offending, the weight which could be attached to that consideration “should, to an extent, be moderated” by reason of there being “other victims of the applicant’s offending who may have [different] views”. In this respect, the Tribunal accepted, at [229], a submission of the Minister:

The Applicant's mother; the victim of his domestic violence offending, stated that the non-revocation of the cancellation of the Applicant's visa would have an adverse impact on her. The other victims of the Applicant's offending, however, including the victim of the Applicant's assault with a tyre iron, have not provided any information regarding the impact that revocation of the Applicant's visa cancellation would have upon them. In these circumstances, the Minister contends that this factor should be attributed limited, if any, weight.”

72    The Tribunal said, additionally, that it was likely that the victim of the serious assault for which the applicant had been sentenced to imprisonment for two years would be impacted adversely by knowledge that the applicant was being returned to the general community. In this respect, it noted, at [230], the statement in the remarks of the sentencing Judge:

As for the effect on the victim, I have before me a victim impact statement which is exhibit 4, and this records the serious consequences that the facial fractures have had for the victim. And, surprisingly (sic), this has impacted on his life in a significant way.

73    However, not having the victim impact statement, the Tribunal thought it appropriate to be circumspect, saying at [231]:

I am cautious about allocating any weight against the Applicant in circumstances where a copy of the victim impact statement is not before me. Accordingly, I cannot find that this factor attracts any weight either in favour of, or against, the revocation of the Applicant’s visa and it is thus neutral.

Consideration of materiality

74    Two independent considerations indicate to my mind that the applicant cannot establish that the error which he imputes to the Tribunal had a material effect. The first is that, as already noted, in relation to cl 14.2(1)(b), the Tribunal considered in some detail the effect of non-revocation of the cancellation of the applicant’s visa on his mother and had concluded:

[222]    With specific reference to this paragraph 14.2(1)(b), I find that the strength, nature and duration of the Applicant’s relationships with members of the Australian community, most particularly, his mother, are strong and palpable. I find that this paragraph 14.2(1)(b) weighs in favour of a finding to restore the Applicant’s visa status to remain in Australia.

[223]    Accordingly, having regard to the totality of evidence relevant to this Other Consideration (b), I am of the view that it weighs strongly in favour of revocation, but is outweighed by Primary Considerations A and C, which favour non-revocation.

75    Had the Tribunal considered the impact on the applicant’s mother under cl 14.4(1), it is almost inevitable that it would, in the circumstances of this case, have had regard to the same considerations leading it to the conclusions expressed in [222] and [223], even taking account of the fact that the applicant’s mother was also a victim of his offending and that it would have reached the same conclusion concerning the impact on her. That is to say, it is not readily apparent how consideration of the same matters twice could have assisted the applicant.

76    The second consideration is that, in the application of cl 14.4(1), the Tribunal was undoubtedly correct to advert to the impact on the other victims (potentially nine in number) of the applicant’s offending. That was particularly so with respect to the victim of the applicant’s assault with the tyre lever. As the Tribunal noted, it was much more plausible to think that this victim would be adversely effected by a decision to revoke the cancellation of the applicant’s visa. Nevertheless, in the absence of direct evidence of the likely effect on the victims (other than the applicant’s mother) if the revocation of the applicant’s visa was cancelled, the Tribunal acted with caution. That is to say, it acted in a way which was favourable to the applicant by not attaching weight to the effect on the applicant’s other victims if he was permitted to remain in Australia.

77    Counsel for the applicant submitted that [231] of the Tribunal’s reasons was to be understood differently, that is, as indicating its view that the consideration of the impact on victims required by cl 14.4(1) was neutral only because the impact on the mother could not be considered and there was insufficient evidence of the likely impact on the applicant’s other victims. The consequence, counsel submitted, was that, if the impact on the mother could be considered under cl 14.4(1), it could not be said that there was no realistic possibility of the outcome of the review being different.

78    I do not accept this submission as it does not have regard to [229]-[231] of the Tribunal’s reasons when read as a whole. In particular, the submission overlooks that these paragraphs commenced with the Tribunal’s identification of the counterfactual, that is, that it had been wrong in thinking that it could not consider the effect on the mother, qua victim, under cl 14.4(1). The Tribunal said that, on that hypothetical counterfactual, it accepted the submissions of the Minister that regard would have to be had to the impact on the other victims. As it did not have direct evidence about that impact, it thought it appropriate, in the circumstances of the hypothetical counterfactual, to be cautious before inferring that those impacts would be adverse. That is to say, acting cautiously and therefore in a manner which was favourable to the applicant, it concluded that, even if regard was had to the effect on the mother as a victim, the cl 14.4(1) consideration was neutral rather than pointing in favour of revocation of cancellation of the visa. Moreover, the strong inference is that, had the Tribunal considered the effect on the mother as a victim, it would not have been so cautious in its consideration of the impact on the victims and, in particular, the victim of the tyre lever assault.

79    In these circumstances, the applicant has not discharged the burden of proof which rests on him of establishing that the error which he imputes to the Tribunal could have had any material effect. He did not point to any material on which the Tribunal could have inferred that his other victims would not be adversely affected by the revocation of the cancellation decision, let alone that such a decision would have a beneficial effect on them.

An unpleaded matter

80    In the supplementary submissions filed in response to the Court’s invitation concerning the effect of DKN20, counsel for the applicant submitted that the Tribunal had not considered the effect of the applicant remaining in Australia on his mother, whether under cl 14.2(1)(b) or under cl 14.4(1).

81    This submission cannot be accepted for two reasons. First, this was not one of the pleaded grounds of review. Secondly, as already noted, the Tribunal referred to the evidence relied upon for the impact on this mother and concluded that that consideration “weighs strongly in favour of revocation”, at [223]. It is implicit in that conclusion that the Tribunal accepted that the applicant’s mother would be adversely affected by his removal from Australia.

Conclusion

82    For the reasons stated above, the application for judicial review is dismissed.

83    The applicant is to pay the first respondent’s costs to be taxed in default of agreement.

Associate:

Dated:    26 July 2021