Federal Court of Australia

Ngata v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 906

ORDERS

THE COURT ORDERS THAT:

1.    The amended originating 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

HALLEY J:

1    This is an application made under s 476A(1)(b) of the Migration Act 1958 (Cth) (Act). The applicant is seeking judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 3 March 2021, affirming a decision of a delegate of the first respondent (Minister) not to revoke the mandatory cancellation of the applicant’s visa pursuant to s 501CA(4) of the Act.

2    Section 476A(1)(b) of the Act gives the Court jurisdiction to review the decision of the Tribunal. Section 476A(2) provides that the jurisdiction is the same as the jurisdiction of the High Court pursuant to s 75(v) of the Constitution. Consistently with that conferral of jurisdiction, the relief sought by the applicant in his amended originating application is a writ of certiorari quashing the decision of the Tribunal and a writ of mandamus remitting the matter to the Tribunal for determination according to law.

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

Background

4    The applicant is a male citizen of New Zealand who was born in New Zealand on 5 August 1990.

5    He first arrived in Australia on 20 June 2010 at the age of 19.

6    In the period from 20 June 2010 to 11 March 2015, the applicant frequently travelled between Australia and New Zealand. He has predominantly resided in Australia since 11 March 2015.

7    The applicant was granted a Class TY (Subclass 444) Special Category (Temporary) Visa (visa) on his most recent arrival in Australia on 13 November 2019.

8    On 17 February 2020, the visa was mandatorily cancelled under s 501(3A) of the Act. Section 501(3A) provides:

(3A) The Minister must cancel a visa that has been granted to a person if:

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

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

(ii) paragraph (6)(e) (sexually based offences involving a child); and

(b) the person is serving a sentence of imprisonment, on a full‑time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.

9    Subsections 501(6) and 501(7) relevantly provide:

(6) For the purposes of this section, a person does not pass the character test if:

(a) the person has a substantial criminal record (as defined by subsection (7));

…

(7) For the purposes of the character test, a person has a substantial criminal record if:

…

(c) the person has been sentenced to a term of imprisonment of 12 months or more; …

10    If a visa is cancelled pursuant to s 501(3A) of the Act, the former visa holder can seek to have the cancellation revoked pursuant to s 501CA. Section 501CA relevantly provides:

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

…

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

…

(b) the Minister is satisfied:

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

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

11    By amended originating application filed on 27 May 2021 the applicant seeks judicial review of the Tribunal’s decision to affirm the decision of the delegate of the Minister not to revoke the cancellation of the visa.

12    There is no dispute that the conditions leading to mandatory cancellation pursuant to s 501(3A) were met. On 30 January 2020 the applicant was convicted of two offences by the Supreme Court of the Australian Capital Territory and was sentenced to 19 months’ imprisonment. The applicant thus has a substantial criminal record pursuant to s 501(7)(c) for the purposes of the character test.

13    The issue before the Tribunal, therefore, was only whether there was “another reason” to revoke the original cancellation decision under s 501CA(4)(b)(ii).

14    The applicant contends that, in affirming the delegate’s decision, the Tribunal fell into jurisdictional error on eight grounds which are variously alleged to constitute: failures to accord the applicant procedural fairness and to conduct the review required; making decisions in the absence of probative evidence; legal unreasonableness and irrationality; misapplication of the law or misinterpretation of applicable law; and failing to have proper regard to the material before the Tribunal.

Tribunal decision

15    The Tribunal commenced by setting out a brief background to the matter and summarising the relevant legislative provisions and considerations that it had to consider pursuant to Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (Direction), a direction given by the Minister for Immigration, Citizenship and Multicultural Affairs under s 499 of the Act.

16    The Tribunal stated that the Direction requires that consideration must be given to the “primary considerations”: 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. “Other considerations” are: international non-refoulement obligations; strength, nature and duration of ties; impact on Australian business interests; impact on victims; and extent of impediments if removed. “Other considerations” should be considered where relevant. It then noted that the primary considerations should generally be given greater weight than the other considerations and one or more primary considerations may outweigh the other considerations.

17    The Tribunal identified that the determinative issue before it was whether there was another reason why the cancellation of the applicant’s visa should be revoked. The Tribunal referred to and summarised the various evidence from the applicant’s supporting witnesses and character references.

Primary Consideration 1: Protection of the Australian Community

18    In its consideration of the protection of the Australian community from criminal or other serious conduct, the Tribunal had regard to both the nature and seriousness of the applicant’s conduct to date and the risk to the Australian community should the applicant commit further offences or engage in other serious conduct.

Nature and seriousness of conduct to date

19    The Tribunal observed that the applicant was convicted in the Supreme Court of the Australian Capital Territory of recklessly inflicting grievous bodily harm and was sentenced to a term of 19 months’ imprisonment, suspended after serving three months upon signing an undertaking to comply with good behaviour obligations for a period of 16 months. It noted that on the same day the applicant was also convicted of common assault for which he received a nine-month good behaviour bond. The Tribunal further noted that the applicant had appealed the recklessly inflicting grievous bodily harm conviction, but on 17 April 2020 the Supreme Court of the Australian Capital Territory Court of Appeal upheld the conviction: see Ngata v The Queen [2020] ACTCA 18.

20    The Tribunal set out in some detail the specific circumstances in which the applicant had committed the offences, including that there were two victims of the applicant’s offending at a Canberra nightclub, the second of whom was seriously injured. The Tribunal quoted from the sentencing remarks of Mossop J in R v Ngata [2020] ACTSC 9 (sentencing remarks) on the impact of the offending, particularly on the second victim of the assault and his family. The Tribunal noted that although Mossop J observed that the violent attack was not premeditated, the applicant’s behaviour and moral culpability were of significant seriousness.

21    The Tribunal accepted the applicant’s explanation in relation to approaches that he had made to the second victim’s uncle following the assault. This included the applicant’s denials that he had ever sought to persuade the victim’s uncle that the charges against him should be dropped. The Tribunal accepted that the applicant’s main concern was the victim’s well-being.

22    The Tribunal also had regard to an undeclared offence that the applicant had been convicted of in 2013 while living in New Zealand (2013 offence). In a written response to the Tribunal with respect to the 2013 offence, the applicant stated:

At the time, I pleaded guilty to injures intent to injure/ reckless disregard (manually) and received 8 months home detention, a fine and community service. Knowing that I was at fault, I accepted my sentence and completed my home detention and community service without any issue. I did not know that I had a conviction. I did however have trouble paying off the fine.

23    The Tribunal observed that as a result of the 2013 offence, the applicant was convicted and sentenced to a period of home detention of eight months, 150 hours of community work and was ordered to pay reparations of NZD1316. The applicant was convicted and discharged for a second offence for breaching post detention conditions in November 2014.

24    The applicant submitted to the Tribunal that as the 2013 offence was his first offence, he was not sentenced to a term of imprisonment and, due to his lack of familiarity with the criminal justice system, it could not be presumed that he understood that a conviction had been recorded against him. He also submitted that he had no knowledge of the second offence or that he had been convicted of it. The applicant’s partner at the time, Ms Andrea Faofua, in her written statement to the Tribunal claimed that both she and the applicant were under the impression that as the applicant had only received home detention, it was his first time “in trouble” and because it seemed to be a relatively minor offence, that he had been found guilty with no conviction recorded.

25    The Tribunal had specific regard to information that it had located on a New Zealand Department of Corrections website (Website Information):

Home detention is both a punitive and rehabilitation sentence. It requires an offender to remain at a suitable and approved residence at all times and be monitored 24 hours a day, seven days a week.

Offenders on home detention must also complete programmes designed to address the causes of their offending.

The sentence can address both the rehabilitation and re-integration needs of an offender, while placing restrictions on them such as being confined to a specific location, and special conditions such as electronic monitoring.

…

Home detention is an alternative to imprisonment and is intended for offenders who otherwise would have received a short prison sentence (of two years or less) for their offending.

(Emphasis added by the Tribunal)

26    Immediately following the Website Information quotation, the Tribunal made these findings:

66.    In light of the significance of the sentence imposed upon Mr Ngata for the 2013 offence, particularly in terms of its impact on him and his family, the Tribunal does not accept that Mr Ngata was unaware that the 2013 conviction was a criminal conviction in the conventionally understood meaning of the term. The Tribunal accepts the Respondent’s argument that having attended court, pled guilty to the offence and subsequently applied for conditions of his home detention to be altered, it is reasonable to expect that Mr Ngata had a greater familiarity with the criminal justice system that he now contends he did. As such, in answering “no” to the question “do you have any criminal conviction/s?”, it is accepted by the Tribunal that Mr Ngata knowingly provided false information on the 12 incoming passenger cards dated between 2014 and 2019.

67.    However in circumstances where Mr Ngata received a security licence with no indication that he had a registered conviction, the Tribunal places less weight on his failure to declare the offending on his incoming passenger cards.

27    The Tribunal was satisfied that the applicant’s offending to date was very serious. It found that as a trained heavyweight fighter, the applicant would have been aware of his capacity to inflict significant physical harm when he struck the two victims at the nightclub in 2019. The Tribunal acknowledged that the applicant’s offending did not involve sexual crimes or crimes against government representatives or officials or involve elements of frequency, but found that his acts of violence were sufficiently damaging that they should be viewed very seriously.

Risk to the Australian community

28    In considering the risk to the Australian community, the Tribunal observed that it had to have regard to the nature of the harm to individuals in the Australian community should the applicant engage in further criminal or other serious conduct, and the likelihood of the applicant engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the applicant reoffending.

29    In considering the nature of future harm, the Tribunal observed that the injury sustained by the second victim was significant and had serious ramifications for his partner and family. The victim had suffered a closed head injury which required him to be sedated and placed on life support. His injuries required emergency surgery to preserve his vision and his partner required counselling and had to take time off work to assist with the victim’s recovery.

30    The Tribunal concluded that in light of the nature of his offending to date, it was satisfied that should the applicant engage in conduct similar to that in which he had engaged in the past, there was a significant risk of serious catastrophic injury or even death to members of the community.

Likelihood of the applicant re-offending

31    In considering the likelihood of the applicant reoffending, the Tribunal noted that the applicant had submitted that his offending was so out of character that it was an “aberration”, that he was remorseful for his conduct and the likelihood of him reoffending was “non-existent” or so remote that it should be concluded that he was not a risk to the community.

32    The Tribunal set out the various factors relied upon by the applicant as contributing to his behaviour and stress at the time of the offence, including that: he was suffering from untreated depression; he could not bring himself to leave the house, including to play football or go to work; he was experiencing difficulties with his former partner in obtaining access to his two sons; his health was suffering; his sister who lived in New Zealand had been diagnosed with cancer; his father had suffered a major heart attack which had required emergency surgery; and he, the applicant, had put on a significant amount of weight.

33    The Tribunal accepted that the applicant was remorseful for his offending, he was “immediately ashamed” of his actions, he acknowledged that his reaction was excessive and he is “now disgusted by his actions and the knowledge that he hurt someone”. The Tribunal also noted that the applicant had apologised to the second victim and the second victim’s family and friends, and that he had not tried to deny or downplay the offending or make excuses for himself.

34    The Tribunal considered in some detail the evidence from a clinical psychologist, Dr Danielle Clout, upon which the applicant had relied upon before Mossop J in relation to his sentencing remarks.

35    It observed that Dr Clout had given evidence at the applicant’s sentencing that “clinically speaking” the applicant’s behaviour on the evening of the offending “appears extremely out of character” and there was “no evidence of difficulties with anger management or antisocial behaviour in his recent background”. She stated that although the applicant met the diagnostic criteria for a major depressive episode, he no longer did so as of October 2019.

36    The Tribunal noted that Dr Clout had concluded that “there is no foreseeable risk of Mr Ngata reoffending, and he is not considered to pose any risk to the Australian community”.

37    The Tribunal acknowledged that in his sentencing remarks Mossop J accepted the evidence of Dr Clout that as a result of the applicant’s previous history of depression, he was at a “higher risk of developing a further episode of depression whilst in custody and that his current family circumstances are likely to make a sentence of imprisonment more burdensome than a person without those circumstances”.

38    The Tribunal observed, however, that Mossop J then went on to state:

While there is a possible chain of indirect causation, it is too remote to warrant consideration in the Verdins sense.

It is possible, however, to take into account the evidence concerning the offender’s mental health in the period prior to the offending as part of his subjective circumstances. It is important to note that in addition to the evidence of the offender, his wife and Dr Clout about his personal circumstances in the year prior to the offending, there was also evidence that he was continuing to pursue competitive kickboxing during that period, something that would have required significant motivation and drive.

This evidence makes the picture of his mental state in the period prior to the offending somewhat more complicated

39    The Tribunal quoted from an article about a local kickboxing match that appeared in the Canberra Times on 28 June 2019, in which the applicant was quoted as stating in part:

“The last two years out of the ring I had a bit of personal stuff going on so it took a bit of a toll on the mental side, but it’s all good now. Everything is falling into place.” Mr Ngata said.

“I wasn’t happy with the last fight. Even though I got the win, I just wasn’t satisfied. Having two years out of the ring, you expect ring rust but now that’s out of the way, I’m hoping to get a better result.

“I’m just looking forward to it now, now I’ve had a feel for how he fights. It’s always the unknown, he might turn up with a different game plan but I can’t wait.”

40    The Tribunal accepted that the applicant had been in the community for eight months up until his sentencing on 30 January 2020 and had not reoffended and that he had not committed any offences while in prison or in immigration detention.

41    The Tribunal acknowledged that the applicant had repeatedly expressed his remorse for his offending and his failure to declare the 2013 offence. It accepted that he had demonstrated the extent of his remorse by providing financial compensation to the second victim, which the Tribunal accepted was genuine and requiring a considerable sacrifice given the applicant’s financial circumstances.

42    The Tribunal then identified the following factors that it considered mitigated the risk that the applicant might reoffend if he was to return to live in the Australian community:

(a)     he has learnt additional coping skills through his work with Dr Clout;

(b)     he does not intend to drink heavily again in the future;

(c)     some of the external stressors, notably the issues relating to access to his two eldest sons, have been resolved or are no longer present;

(d)     he has spent a considerable period in prison and immigration detention during which he has sought to better himself;

(e)     consistent character references attesting to the offending being “out of character”;

(f)     his genuine remorse demonstrated by his mentoring of others whilst in prison and detention and his amends to both victims of his offending;

(g)     his desire to be in Australia close to his family, particularly his wife and four children; and

(h)     the realisation that should he reoffend or engage in other serious misconduct it is likely that his visa will be cancelled.

43    The Tribunal, however, found that there was a real risk that the applicant may reoffend by reason of the following considerations:

(a)    the observations made by Mossop J in the sentencing remarks that Mr Ngata’s mental state at the time of the offending does not reduce his moral culpability or responsibility for the offending;

(b)    Mr Ngata’s account of his poor mental state at the time of the offending is undermined by his demonstrated capacity to continue to train for and promote his involvement in kickboxing during that period;

(c)    Dr Clout’s treatment of Mr Ngata was brief relative to the seriousness of the offence and not suggestive of any significant psychological disorder; and

(d)    though remorseful and aware of the injuries he had inflicted and later pleading guilty at the earliest opportunity to the charges, Mr Ngata did not proactively engage with the police but waited until he was contacted by them.

Conclusion

44    The Tribunal found that, based on the evidence that was before it, there was a real, if reduced, possibility that the applicant may reoffend. It considered that should he do so, the nature and seriousness of his offending represented an unacceptable risk of harm to members of the Australian community. It concluded that this primary consideration weighed very heavily in favour of not revoking the mandatory cancellation.

Primary Consideration 2 – Best Interests of Minor Children

45    After considering the evidence advanced with respect to the best interests of minor children, including evidence with respect to his four children and his nieces and nephews, the Tribunal made the following findings.

46    The Tribunal was satisfied that it was in the best interests of the applicant’s children that his visa cancellation be revoked. It accepted that the applicant loves his children, has regular meaningful contact with each of them and supports them emotionally and financially.

47    The Tribunal accepted that the applicant’s two eldest children, AF and BF, were both anxious about the prospect of non-revocation and that it would be more difficult for them to see the applicant regularly should he return to New Zealand. The Tribunal noted, however, that they live interstate with Ms Faofua and her partner and are expected to continue to do so. Whilst the Tribunal accepted that AF has some behavioural issues at school, given the nature of those issues, AF being located in Queensland and the applicant’s intention to continue to reside in Canberra, this was afforded less additional weight than it otherwise would have been.

48    The Tribunal also found that if the applicant was to relocate to New Zealand, it would be disruptive to the lives of the applicant’s other two children, BC and DC. It accepted that if they were separated from their father, it would be more difficult for them to build a relationship with the applicant and for him to be physically present with them. It noted that the applicant’s wife would be expected to care for the children, which she would find significantly more difficult without the applicant’s presence and support.

49    The Tribunal also accepted that the applicant had a meaningful presence in the lives of his nieces and nephews in Australia and plays a role in their upbringing, “notably by supporting his sister-in-law and travelling to spend time with his nieces”.

50    In the circumstances, the Tribunal was satisfied that it was in the best interests of each of the applicant’s children and his nieces and nephews in Australia that the cancellation of his visa be revoked. It concluded that this factor weighed very heavily in favour of revocation, but not determinatively so.

Primary Consideration 3 – Expectations of the Australian Community

51    The Tribunal then considered the expectations of the Australian community. The Tribunal noted that for the purpose of assessing the expectations of the community, decision makers are required to consider the matters set out at subparagraph 13.3(1) of the Direction.

52    The Tribunal found that, having regard to subparagraph 13.3(1) of the Direction and the principles set out in paragraph 6.3 of the Direction, it was satisfied that the Australian community would have a low tolerance for the offending of the applicant. It observed that the Australian community expects that non-citizens “will obey Australian laws” while living in Australia and will generally be regarded as forfeiting “the privilege of staying” in Australia if they commit serious crimes of a violent nature.

53    The Tribunal concluded that this consideration weighed very heavily against revocation of the mandatory cancellation of the applicant’s visa.

Other relevant considerations

54    The Tribunal then turned to consider other relevant considerations set out in the Direction.

Ties to the Australian community

55    The Tribunal first considered the strength, nature and duration of the applicant’s ties to the Australian community.

56    The Tribunal accepted that in addition to his children and immediate family, the applicant had established strong community ties and that he had had a significant impact on members of the Australian community in the relatively short period that he had lived here and was genuinely well regarded.

57    In the circumstances, the Tribunal was satisfied that non-revocation of the cancellation of the visa would have a significant detrimental impact on the applicant’s family and friends in Australia and this consideration weighed strongly, but not determinatively, in favour of revoking the cancellation decision.

Impediments to removal

58    The Tribunal next considered impediments to removal.

59    The Tribunal had regard to the fact that the applicant was a relatively young man and had lived in Australia for five years but had regularly returned to New Zealand during that period.

60    The Tribunal observed that the applicant had many family members in New Zealand including his mother, brother and sister. It also noted that he had vocational skills and experience that are transferable to New Zealand’s employment market and he faced no language or cultural barriers in New Zealand.

61    The Tribunal was satisfied that there were no social, medical or economic difficulties which had been identified that would impede the removal of the applicant or his capacity to maintain a basic living standard comparable to other citizens of New Zealand.

62    The Tribunal found that this consideration weighed neutrally in its decision.

Determination of the Tribunal

63    The Tribunal ultimately affirmed the decision of the delegate of the Minister. It concluded that, on balance, the weight of the primary considerations of the protection of the Australian community and the expectations of the Australian community outweighed the combined weight of the primary consideration of the best interests of the minor children of the applicant and the other relevant considerations of the strength, nature and duration of his ties to the Australian community.

Review grounds

Ground 1 – Procedural fairness

64    The first ground of review relied upon by the applicant is that the Tribunal failed to accord the applicant procedural fairness by relying on the Website Information that it obtained after the hearing, which it had not put to the applicant for comment.

65    The applicant submitted that the Tribunal relied on the Website Information to conclude that the applicant had knowingly provided false information on 12 incoming passenger cards between 2014 and 2019. I am satisfied that it did so in part. The Tribunal, however, expressly stated that it placed less weight on the applicant’s failure to declare the offending on his incoming passenger cards because the applicant had received a security licence with no indication that he had a registered conviction.

66    The applicant contends that because the Website Information was not raised with him, he was not given an opportunity to comment on that information, including whether he was aware that home detention is both a “punitive and rehabilitation sentence”, an alternative to imprisonment and that it flowed from a conviction. Further, citing s 62A of the Administrative Appeals Tribunal Act 1975 (Cth), which makes it an offence to give false or misleading evidence at the Tribunal, the applicant contends that the Tribunal was required to put the Website Information to the applicant for comment, as the finding that the applicant had knowingly provided false information would mean that the applicant perjured himself in relation to the New Zealand convictions.

67    The applicant submits that had the applicant been afforded procedural fairness, a different conclusion could have been reached by the Tribunal in relation to the non-disclosure of his convictions on his passenger cards and that, in turn, could have affected the deliberative process of the Tribunal in finding that the delegate’s decision should be affirmed.

68    It is not readily apparent why the Tribunal found it necessary to obtain and then have regard to the Website Information in order to make findings as to whether the applicant had knowingly provided false information on the incoming passenger cards. In the absence of any suggestion that the applicant had accessed that page of the New Zealand Department of Corrections website, it is difficult to see what, if any, probative value the Website Information could have had on the Tribunal’s reasoning.

69    Nevertheless, it would appear that the Tribunal had placed some weight on the content of the Website Information in making its finding that the applicant had knowingly provided false information and that it regarded the information as adverse to the position advanced by the applicant. It might reasonably be thought that in doing so, the Tribunal regarded the Website Information as “credible, relevant and significant” to the decision that it made, which would prima facie give rise to an obligation on the part of the Tribunal to put the information to the applicant in order to comply with its obligations to provide procedural fairness: Kioa v West (1985) 159 CLR 550; [1985] HCA 81 at 629 (Brennan J); Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88; [2005] HCA 72 at [16]-[17] (Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ).

70    The applicant, however, bears the burden of establishing to the satisfaction of the Court, on the balance of probabilities, that there was a realistic possibility that a different decision could have been made had the Tribunal given the applicant an opportunity to comment on the Website Information: see MZAPC v Minister for Immigration and Border Protection [2021] HCA 17 at [39]-[40] (Kiefel CJ, Gageler, Keane and Gleeson JJ).

71    I am not satisfied, assuming there was a failure to afford procedural fairness, that the applicant has established that there was a realistic possibility that a different decision could have been reached by the Tribunal if he had been given an opportunity to respond to the Website Information. First, the question of whether the applicant was aware that he had received a conviction was squarely addressed by him in the course of the hearing before the Tribunal and he had addressed that issue in detail. Second, there was no suggestion that any of the content of the Website Information was false. Third, it would appear that the only conceivably relevant response that the applicant could make to the Website Information was that he had not accessed that page of the website of the New Zealand Department of Corrections website and was not aware of its contents at the time that he completed each of the incoming passenger cards. Fourth, given the relevant issue was the knowledge of the applicant, not the objective position, its material relevance to the “knowingly false” finding is at best speculative. Finally, and in any event, the Tribunal discounted the weight it attached to the “knowingly false” finding because of the non-disclosure of the conviction on the applicant’s security licence.

72    The first ground has not been established.

Ground 2 – Procedural fairness/failure to conduct necessary review

73    The second ground of review relied upon by the applicant was advanced in two alternative respects. First, it was alleged that the Tribunal failed to accord the applicant procedural fairness in that it failed to put the applicant on notice that it did not accept the evidence of Ms Faofua or Mr Shane Tipa. Second, it was alleged in the alternative that the Tribunal did not conduct the review required of it because it failed to have proper regard to the evidence of Ms Faofua and Mr Tipa in relation to the applicant’s criminal convictions in New Zealand.

74    At the time of the conviction in New Zealand, the applicant was living with Ms Faofua and Mr Tipa was a friend of the applicant in both New Zealand and Australia. Their unchallenged evidence before the Tribunal was that the applicant was not aware that he had received criminal convictions in New Zealand.

75    The applicant contends that in circumstances where the evidence was unchallenged, both had appeared at the hearing and given evidence and each was available for cross-examination by the respondent and for questions from the Tribunal, the Tribunal had a procedural fairness obligation to put the applicant on notice that it did not accept their evidence in relation to whether the applicant was aware that he had been convicted of criminal offences in New Zealand.

76    Contrary to the submissions advanced by the applicant, I do not accept that the evidence of Ms Faofua and Mr Tipa was important as to whether or not the applicant was aware that he had criminal convictions in New Zealand. The subjective beliefs of Ms Faofua and Mr Tipa as to whether the applicant appreciated that he had criminal convictions in New Zealand is of little if any evidentiary value.

77    I do not consider that the Tribunal was under any obligation to place any substantive reliance on the subjective beliefs of Ms Faofua and Mr Tipa as to the applicant’s state of mind with respect to whether he had any criminal convictions in New Zealand.

78    An additional issue raised by the applicant in his written submissions was an alleged concession by the Minister, recorded in the transcript of the hearing before the Tribunal, that the Minister did not “seek to go outside the delegate’s findings at paragraph 39 of the decision in which the delegate did not place weight on the applicant’s non-recollection, if I can put it that way, or lack of awareness to the New Zealand convictions”.

79    The relevant finding by the delegate at [39] of the decision not to revoke the mandatory cancellation of the applicant’s visa was as follows:

I accept that Mr NGATA was under the impression that there was no record of a conviction in his name, given the necessity of criminal checks for employment in his industry, and have therefore given little weight to his failure to disclose these convictions.

80    No doubt the oral submission made by the Minister at the hearing before the Tribunal could have been made more felicitously. Nevertheless, the alleged concession refers expressly to the findings at [39] of the decision, which spoke in terms of “little weight” rather than “no weight”. In any event, neither I nor the Tribunal are bound by any alleged concession made by the Minister in submissions to the Tribunal.

81    Therefore it does not follow, contrary to the submission advanced by the applicant, that the Tribunal “failed to have proper regard to the material before it, evident by its failure to consider and make findings having regard to the concession when considering whether the visa cancellation should be revoked”.

82    The second ground has not been established.

Ground 3 – Capacity to inflict physical harm finding

83    The third ground of review advanced by the applicant was that, in finding that the offending to date by the applicant was very serious, the Tribunal failed to accord the applicant procedural fairness, failed to conduct the review required of it, made the decision in the absence of probative evidence and made a decision that was irrational or legally unreasonable.

84    The applicant contended that the Tribunal did not put to him that he would have been aware of his capacity to inflict significant physical harm at the time that he assaulted the victims and this amounted to a failure to accord procedural fairness that was material, such that the decision of the Tribunal was infected with jurisdictional error.

85    Further, the applicant contended that there was no probative evidence that he would have been aware of his capacity to inflict significant physical harm when he assaulted the two victims. The applicant contended that by making a material finding of fact in the absence of probative evidence, the decision of the Tribunal was also infected with jurisdictional error, relying on Minister for Immigration and Multicultural and Indigenous Affairs v VOAO & VOAP [2005] FCAFC 50 at [5] (Wilcox, French and Finkelstein JJ); and Doshi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1026 at [26] (Davies J).

86    The applicant further contended that the Tribunal failed to conduct the review required of it because it failed to have proper regard to the evidence set out before it, namely an exchange with the applicant during cross-examination as recorded in the following extract from the transcript of the hearing:

Okay. All right. One of the things that struck me in watching that video, and I’m just going to - I’ll put this to you because I could have it completely wrong, but like, you sort of looked pretty steady on your feet. Like, you don’t look like someone - like, if I think of someone who’s drunk that much vodka I would, sort of, expect them to be pretty clumsy. And I know you’re a pretty solid guy, but you know, can you just, maybe, tell me a little bit about just, you know, what was going on? How you are actually, really, that night? --- The honest truth, I don’t remember. I blanked out. Like I just went. Like, I don’t - I just, I don’t remember how I was being. I don’t - yes, I just went - I just, yes, I just - yes, that’s honest, that’s the honest truth, that’s the honest to God truth. I don’t remember being like that. Hence why, when I see the footage, I don’t recognise, like, that person.

87    The applicant submitted that the Tribunal failed to have proper regard to the evidence of the applicant reproduced above, because if the applicant had “blanked out, it is hard to see how he would have been aware of his capacity to inflict harm when he hit the two victims”.

88    The Tribunal, however, was not required to accept this evidence in preference to the findings made by Mossop J in the course of his sentencing remarks in which he stated:

18.    The objective seriousness of the offence of recklessly inflicting grievous bodily harm has two aspects: the nature of the behaviour in which the offender engaged which is indicative of the offender’s moral culpability, and the nature of the previous bodily harm that was suffered by the victim stop

19.    As far as the offenders behaviour and moral culpability are concerned the defences of significant seriousness. Although there was only one blow, it was a fierce one directed to the victim’s head. The circumstances in which it was given increase the moral culpability of the offender in that the victim was attempting to non-violently de-escalate the situation and hence avoid any further confrontation between the offender and [the first victim]. He was an innocent person who had done nothing to provoke the offender and was acting appropriately about attempting to non-violently de-escalate a likely violent confrontation. The offender must have been well aware of his own capacity to inflict violence upon others, being a competitive kickboxer and having a history of playing semi-professional rugby. That known capacity to inflict violence makes his use of it more morally culpable.

(Emphasis added.)

89    Contrary to the submissions advanced by the applicant, I do not accept that Mossop J’s sentencing remarks were directed only at a general awareness of a capacity to cause significant harm. In context, the remarks were directed at the applicant’s state of mind at the time of the assaults. If not, it is difficult to see how those remarks could have any relevance to any assessment of the moral culpability of the applicant.

90    Further, the Tribunal’s conclusion, given the sentencing remarks of Mossop J, was clearly one upon which reasonable minds might differ and therefore it could not be legally unreasonable: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 at [130]-[131] (Crennan and Bell JJ).

91    The third ground has not been established.

Ground 4 – Irrationality and unreasonableness

92    The fourth ground relied upon by the applicant was that the “real risk of reoffending” finding, based on the sentencing remarks of Mossop J, was irrational or legally unreasonable given the Tribunal’s finding that the applicant’s offence was “out of character”.

93    The applicant submitted that the sentencing remarks of Mossop J directed at the relevance of impaired mental functioning to sentencing had been taken out of context by the Tribunal, and further submitted that a finding that there is no reduction in a person’s moral culpability for an offence does not mean that there is a real risk of reoffending. Neither of these reasons, the applicant submitted, on their own or combined could lead to a conclusion that there was a real risk of reoffending.

94    Further, the applicant contended that given the common law privilege against self-incrimination, it was legally unreasonable to expect the applicant to “turn himself in” and therefore the finding that he had not “proactively engaged with the police but waited until he was contacted by them” could not support a conclusion that there was a real risk of reoffending. The privilege against self-incrimination can be relied upon as a basis not to give evidence. However, as submitted by the respondent, it cannot be relied upon to negate an inference to support a finding of a real risk of reoffending that might otherwise be drawn from a failure of a defendant to “turn himself in” following the infliction of serious injuries on a person.

95    I do not accept that the “out of character” finding precluded or rendered unreasonable a finding that there was a real risk of reoffending, nor do I accept that the matters relied upon by the Tribunal to make the “real risk of reoffending” finding were matters that could not rationally or reasonably be relied upon by the Tribunal in making that finding.

96    The fourth ground has not been established.

Ground 5 – Misinterpretation and misapplication of the law

97    The fifth ground relied upon by the applicant was that the Tribunal misinterpreted the applicable law and/or misapplied the law to the facts in relation to paragraph 13.1.2 of the Direction, which relevantly provides:

(1)     In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:

a)     The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and

b)     The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for a rehabilitative courses to be undertaken).

98    The applicant contended that the Tribunal was required to determine the likelihood of him engaging in further criminal or other serious conduct. He submitted that it would be logical to conclude that the higher the likelihood of the applicant engaging in further criminal or other serious misconduct, the more that consideration weighed against the revocation of the visa cancellation.

99    The applicant contended, however, that rather than determining the likelihood, the Tribunal merely determined that there was a real, if reduced, possibility that the applicant may re-offend. He submitted that this did not address the likelihood of re-offending and therefore the Tribunal did not undertake the task required of it.

100    I do not accept that there is any material or substantive difference between an assessment of the possibility that the applicant may reoffend and the likelihood that the applicant may reoffend.

101    The fifth ground has not been established.

Ground 6 – Failure to have proper regard to material

102    The sixth ground relied upon by the applicant was that the Tribunal failed to have proper regard to the unchallenged evidence before it that:

(a)    the applicant’s two eldest sons were moved from Queensland and placed in the primary care of the applicant and his wife by child protection authorities for a period of time; and

(b)    should the applicant’s mandatory visa cancellation be revoked, one of those sons would again be sent to live with the applicant in Canberra.

103    The applicant submitted that this failure meant that the Tribunal made erroneous findings that affected the weight that it gave to the best interests of the applicant’s sons. As this formed part of the Tribunal’s deliberative process when considering whether the visa cancellation should be revoked, he contended that the decision was thereby infected with jurisdictional error.

104    The evidence before the Tribunal, however, was not that the applicant’s son would be sent to live with the applicant. It is readily apparent from the evidence given by the applicant and Ms Faofua before the Tribunal that no definitive decision had been made on where the child would live if the visa cancellation revocation application was successful.

105    The applicant gave the following evidence on this issue, at T38:40-39:3 of the Tribunal hearing transcript:

Okay. And just, your boys, where are they, the two boys with your ex-wife, where they living now?---In Brisbane.

Right. And it sounds like it’s been a bit of back and forth over the last couple of years with them moving to Canberra for a period and then, going back to Brisbane. Is Brisbane now their home? Or would you be expecting them to come back to Canberra?---No, I think, in the meantime, they will remain in Brisbane. But yes, I guess, it just depends on how [my eldest son] is going, because he’s struggling up there. And like I said, because I’m not able to be of any assistance physically, I think it’s a little bit tricky for him. So I’m not quite sure what will happen, you know, when the time comes, or whatever it is.

106    The evidence that Ms Faofua gave on this issue, at T60:26-32 of the Tribunal hearing transcript, was no more definitive:

Sure. So should Mr Ngata walk out of detention and be back in the community, what would that look like? Would you be sending [your eldest son] to be with him?---That’s correct. That was the original plan when - but I wasn’t sure how long [the applicant] was going to be away for - was [my eldest son] was actually going to go live with their father, but I actually brought him back here to me in Brisbane for school holidays, and I kept him because I was being selfish. I wanted my son and back backfired in my face.

107    Moreover, the Tribunal’s failure to refer specifically to this issue or the placement of the applicant’s sons in the primary care of the applicant and his wife by child protection authorities was not sufficient to give rise to jurisdictional error. The Tribunal was not under any obligation to refer specifically to every piece of evidence before it or give a “line-by-line refutation” of the applicant’s claims. As explained by the Full Court of the Federal Court of Australia in Minister for Home Affairs v Buadromo (2018) 267 FCR 320; [2018] FCAFC 151 at [48]-[49] (Besanko, Barker and Bromwich JJ), the Tribunal “must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence”.

108    The sixth ground has not been established.

Ground 7 – Failure to have proper regard to impact on Mrs Ngata and her two children

109    The seventh ground relied upon by the applicant was that in considering the best interests of the minor children in Australia and the applicant’s ties to Australia, the Tribunal failed to have proper regard to the evidence relating to the hardship of the applicant’s spouse, Mrs Ngata, and the impact that the applicant’s permanent exclusion from Australia would have on her and their two children.

110    The applicant contends that there was no genuine consideration undertaken by the Tribunal of the claims and material before it in that regard. By way of example the applicant pointed to the evidence from Mrs Ngata that she and her two children lived in one room in her mother’s house and that the arrangement was not sustainable in the long term, given her financial circumstances. The applicant also pointed to Mrs Ngata’s evidence that she could not afford to “pack up her life” and go to New Zealand with her children, she was emotionally, mentally and financially drained and that Mrs Ngata’s mother was having to draw on her savings to help support Mrs Ngata and the children.

111    The applicant submitted that the Tribunal’s consideration of the best interests of Mrs Ngata and her two children was a formulaic response: Hunt v Minister for Home Affairs [2021] FCA 507 at [56]-[57] (Collier J), citing Hands v Minister for Immigration and Border Protection (2018) 267 FCR 628; [2018] FCAFC 225 (Hands) at [3] (Allsop CJ; Markovic and Steward JJ agreeing). Given that it formed part of its deliberative process when considering revocation, the applicant contended that the decision not to revoke the mandatory visa cancellation was thereby infected with jurisdictional error.

112    As explained above, the Tribunal is required to give reasons for its decision, not to comment upon and respond to each piece of evidence put before it. Those reasons, however, in the context of an exercise of power that may have very serious consequences on people must demonstrate a “real consideration of the circumstances of the people affected” and “[t]his obligation and the expression of its performance is not a place for decisional checklists or formulaic expression” which may “hide a lack of the necessary reflection upon the whole consideration of the human consequences involved. Genuine consideration of the human consequences demands honest confrontation of what is being done to people”: Hands at [3] (Allsop CJ).

113    Necessarily, any assessment of whether a decision maker has engaged in a formulaic consideration of a matter is an impressionistic and evaluative exercise, necessarily confined to an analysis and assessment of the reasons advanced by the decision maker in support of the decision that has been made. Those reasons could be expected to demonstrate that the decision maker has identified factors both favourable and unfavourable to the matter being considered and has arrived at a conclusion after a balancing or weighing up of those factors. Ultimately it is not an exercise that can be reduced to any form of empirical analysis or assessed against any prescriptive template.

114    I am satisfied in the present case that the Tribunal’s consideration of the best interests of the minor children in Australia affected by its decision not to revoke the visa cancellation, as set out in its decision at [104] to [124] and summarised above, demonstrated a real consideration of their circumstances and a genuine and honest consideration of the consequences of the decision for them.

115    My conclusion is buttressed by the Tribunal’s ultimate findings that first, it was in the best interests of the applicant’s four children and his nieces and nephews in Australia that the cancellation of his visa be revoked and second, that factor weighed heavily in favour of revocation, although not determinatively so.

116    The seventh ground has not been established.

Ground 8 – Interstate children impacted less finding

117    The final ground upon which the applicant relies is that the finding made by the Tribunal that the applicant’s two eldest children living with their mother, Ms Faofua, in Brisbane would be impacted to a lesser extent than his children who lived with the applicant’s wife in Canberra was not supported by any evidence and was legally unreasonable.

118    The applicant’s two eldest children lived interstate with their mother and her partner and the two younger children had lived with the applicant and the applicant’s wife in Canberra. This gives rise to at least an available inference that the impact of a non-revocation decision would be less on the older children. Further, it is clearly a matter upon which reasonable minds might differ.

119    The evidence relied upon by the applicant to the effect that his interstate children were adversely affected by his detention, manifesting in behavioural problems at school that led to suspension and expulsion, does not preclude or render unreasonable a finding that the interstate older children would be impacted to a lesser extent by a non-revocation decision. Not least because of Mrs Ngata’s evidence before the Tribunal that she “had no way of … packing up [her] life and putting [her] children on a plane at all” (Tribunal hearing transcript at T49:6-8).

120    The eighth ground has not been established.

Disposition

121    For the reasons advanced above, I reject each of the grounds of review advanced by the applicant. It follows that the application should be dismissed with costs.

Associate:    

Dated:    6 August 2021