Federal Court of Australia

GNRK v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 932

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

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

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

REASONS FOR JUDGMENT

SC DERRINGTON J

Introduction

1    On 5 February 2021, the Administrative Appeals Tribunal affirmed a decision of a delegate of the first respondent (Minister), made under s 501(1) of the Migration Act 1958 (Cth), to refuse to grant the applicant a Bridging E (Class WE) visa on character grounds.

2    On 10 October 2019, the applicant had been convicted in the Queensland District Court of certain drug offences and was sentenced to a cumulative sentence of four years.

3    By Reasons for Decision delivered on 17 February 2021, the Tribunal concluded that application of Direction No. 79 – Visa Refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Direction 79) favoured the refusal of the applicant’s visa application.

4    The applicant seeks judicial review of the decision of the Tribunal, pursuant to s 476A of the Migration Act, on the sole ground that the Tribunal made findings in relation to the required considerations in Direction 79 which ‘misconstrued the nature of the applicant’s evidence and submission and so lacked a logical, rational or probative basis that the decision of the Tribunal was legally unreasonable’.

5    For the reasons that follow the application must be dismissed despite the unhappy consequences for the applicant, his partner, and their almost three-year old daughter.

Background

6    The applicant arrived in Australia from Vietnam on 7 February 2013 on a student visa. He studied English at Griffith University in preparation for a course at that University before deciding to undertake a cookery course in Melbourne. An application for a further student visa was refused in December 2016.

7    Between June and September 2016, Queensland Police detected the applicant engaging in unlawful activity relating to cannabis. He was eventually charged with three offences and, some three years later after a plea of guilty, was sentenced to a term of imprisonment of four years of which 10 months was to be custodial with the remainder suspended.

8    The applicant was on bail between the time when the offences were committed and the date of sentencing. In June 2017, the applicant applied for a partner visa on the basis of a marriage with his then wife. He subsequently withdrew that application and separated from his wife.

9    The applicant met his current partner in late 2017. They had a daughter together, born on 10 September 2018. His partner is referred to variously throughout the relevant documents as his wife or his partner. It was common ground that there has been no legal marriage. The parties commenced living together after the child was born until the applicant’s incarceration on 10 October 2019. He served the 10 custodial months of his sentence and was then moved to immigration detention on 7 August 2020.

10    On 18 August 2020, the applicant applied for a Partner visa sponsored by his current partner and an associated Bridging E (Class WE) visa. It is the refusal of the latter visa that is the subject of these proceedings.

Legislative provisions

11    Section 501(1) of the Migration Act provides that the Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.

12    Section 501(6)(a) provides that a person does not pass the character test if the person has a substantial criminal record (as defined by subsection (7)). Section 501(7)(c) provides that a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more. It is not in dispute that the applicant did not pass the character test in s 501(1) of the Migration Act, because of the operation of subs (6)(a), on the basis of subs (7)(c).

13    Section 499(1) of the Migration Act provides that the Minister may give written directions to a person or body having functions or powers under the Migration Act if the directions are about the exercise of those functions or powers. By s 499(2A), a person or body must comply with a direction made under s 499(1). On 20 December 2018, the then Minister made Direction 79, which came into force on 28 February 2019, and which applied to the decision in respect of the applicant’s visa refusal. (I interpolate that Direction 79 has since been revoked and replaced with Direction 90 made on 8 March 2021 with effect from 15 April 2021).

14    Paragraph 6.3 of Direction 79 provides as follows:

6.3    Principles

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

(2) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.

(3) A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

(4) In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.

(5) Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.

(6) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently, in Australia.

(7) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.

15    Paragraph 7(1)(a) of Direction 79 stipulates that, informed by the principles in paragraph 6.3 above, a decision-maker must take into account the considerations in Part A or Part B, where relevant, in order to determine whether a non-citizen will forfeit the privilege of being granted a visa.

16    Paragraph 8(1) stipulates that decision-makers must take into account the primary and other considerations relevant to the individual case (which, in the case of a decision whether to refuse to grant a visa, are in Part B). Paragraph 8(3) of Direction 79 provides that both primary and other considerations may weigh in favour of, or against, whether or not to grant a visa. Paragraph 8(4) provides that primary considerations should generally be given greater weight than the other considerations. Paragraph 8(5) provides that one or more primary considerations may outweigh other primary considerations.

17    Part B of Direction 79 sets out those considerations which a decision-maker must take into account in deciding whether to refuse a visa. These considerations are divided into “primary considerations” and “other considerations”.

18    Paragraph 11(1) of Direction 79 provides that the following considerations are “primary considerations”:

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

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

    (c)     Expectations of the Australian community.

19    Paragraph 11.1 of Direction 79, which corresponds to the primary consideration in paragraph 11(1)(a), provides as follows:

11.1 Expectations of the Australian Community

(1) When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. There is a low tolerance for visa applicants who have previously engaged in criminal or other serious conduct. Decision-makers should also give consideration to:

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

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

20    Paragraph 11.1.1 sets out the factors to which decision-makers must have regard in considering the nature and seriousness of the non-citizen’s criminal offending to date. The factors presently relevant are:

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

(h)     The cumulative effect of repeated offending.

21    Paragraph 11.1.2 concerns the risk to the Australian community should the non-citizen commit further offences. Relevantly, it provides:

(1)    In considering whether the non-citizen represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct, and the harm that would be caused if it were to be repeated, is so serious that any likelihood that it may be repeated may be unacceptable.

22    Paragraph 11.2 of Direction 79, which corresponds to the primary consideration in paragraph 11(1)(b), provides as follows:

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

…

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

(a)     The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);

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

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

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

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

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

…

23    Paragraph 12(1) of Direction 79 provides a non-exhaustive list of “other considerations” which must be taken into account by a decision-maker where relevant. These considerations include (but are not limited to): international non-refoulement obligations; impact on family members; impact on victims; and impact on Australian business interests. Only the second consideration, that of the impact on family members, is presently relevant.

24    The force and effect of Direction 79 made under s 499(1) of the Migration Act, albeit concerning its predecessor, Direction 65, was explained by the Full Court in Matthews v Minister for Home Affairs [2020] FCAFC 146. The Court said, at [45]:

…it is important to emphasise that the express purpose of Direction 65 is “to guide decision-makers performing functions or exercising powers under section 501 of the Act” (para 6.1(4), Direction 65; emphasis added). It remains the task of the Tribunal to determine what is and is not relevant in the circumstances of the individual case. Thus, as Perram J held by analogy in SZTMD [v Minister for Immigration and Border Protection [2015] FCA 150; (2015) 150 ALD 34] (in a passage also approved in [Minister for Home Affairs v] HSKJ [[2018] FCAFC 217; (2018) 266 FCR 591] at [44]):

20 Although the applicant did not directly raise the issue, I would indicate that I accept Mr Hume’s submission that it was for the Tribunal to form an opinion as to what was relevant under cll 2 and 3 [of Ministerial Direction 56 made under s 499 of the Act] and what was not. The usual way of reading provisions such as these clauses is that they are construed as requiring the formation by the decision-maker of an opinion on the standard (here, relevance) imposed; that is to say, they are not generally construed as requiring the existence of a jurisdictional fact: see, for example, Australian Heritage Commission v Mount Isa Mines Ltd (1995) 60 FCR 456 at 466-468 (FC). Consequently, there is no occasion to consider whether this Court is of the opinion that there were relevant parts of the guidelines or country information. It is the Tribunal’s views on relevance which matter, not those of this Court.

Particulars of unreasonableness

25    In the Originating Application, the applicant particularises six matters which are said to demonstrate that the Tribunal made findings which misconstrued the nature of the applicant’s evidence and submissions and so lacked a logical, rational or probative basis that the decision of the Tribunal was legally unreasonable. Two of those matters were not pressed at the hearing of the application – (a) and (f).

26    The applicant contends:

…

(b)    The finding, at [114] of the decision in relation to par. 11.1.1(g) and (h) of Direction 79, that the applicant’s criminal offences were “frequent”, and demonstrated a “trend of increasing seriousness’, and that they were made more serious by their “cumulative effect, misconstrued the nature and frequency of the applicant’s criminal offences.

(c)    The finding, at [156]-[157] of the decision in relation to par. 11.1.2(1) of Direction 79, that the applicant’s criminal conduct was so serious that “any risk of similar conduct by the applicant is “unacceptable”, overstated the actual seriousness of the applicant’s criminal conduct by “cherry-picking” the evidence in reports as to the danger of cannabis provided by the parties.

(d)    The finding, at [162]-[166] of the decision in relation to par.11.1.2(3)(a) of Direction 79, that the nature of the harm should the applicant engage in further criminal conduct was such that it “weighs heavily against the applicant”, overstated the actual seriousness of the applicant’s criminal conduct by “cherry-picking” the evidence in reports as to the danger of cannabis provided by the parties.

(e)    The finding, at [183] of the decision in relation to par. 11.2 of Direction 79, that the best interests of the applicant’s two year old daughter weighed “in favour” of the grant of the visa to the applicant, failed to engage with or to fairly construe the evidence in relation to this factor.

Relevant principles

27    As was said by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [135], the question that needs to be asked in determining whether a decision was legally unreasonable is whether:

[on] the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.

28    Before considering the various particulars said to rise to the level of legal unreasonableness, it is helpful to recall the observations by Allsop CJ on this topic in Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1:

[8]    The content of the concept of legal unreasonableness is derived in significant part from the necessarily limited task of judicial review. The concept does not provide a vehicle for the Court to remake the decision according to its view as to reasonableness (by implication thereby finding a contrary view unreasonable). Parliament has conferred the power on the decision-maker. The Court’s function is a supervisory one as to legality: see Li at [30], [66] and [105].

…

[11]    The boundaries of power may be difficult to define. The evaluation of whether a decision was made within those boundaries is conducted by reference to the relevant statute, its terms, scope and purpose, such of the values to which I have referred as are relevant and any other values explicit or implicit in the statute. The weight and relevance of any relevant values will be approached by reference to the statutory source of the power in question. The task is not definitional, but one of characterisation: the decision is to be evaluated, and a conclusion reached as to whether it has the character of being unreasonable, in sufficiently lacking rational foundation, or an evident or intelligible justification or in being plainly unjust, arbitrary, capricious, or lacking common sense having regard to the terms, scope and purpose of the statutory source of the power, such that it cannot be said to be within the range of possible lawful outcomes as an exercise of that power. The descriptions of the lack of quality used above are not exhaustive or definitional, they are explanations or explications of legal unreasonableness, of going beyond the source of power.

[12]    Crucial to remember, however, is that the task for the Court is not to assess what it thinks is reasonable and thereby conclude (as if in an appeal concerning breach of duty of care) that any other view displays error; rather, the task is to evaluate the quality of the decision, by reference to the statutory source of the power and thus, from its scope, purpose and objects to assess whether it is lawful. The undertaking of that task may see the decision characterised as legally unreasonable whether because of specific identifiable jurisdictional error, or the conclusion or outcome reached, or the reasoning process utilised.

[13]    The relationship between the conclusion or outcome and the reasoning process revealed by reasons to reach it is one that should not be rigidly set. Reasons may fail to disclose an evident and intelligible justification or may not be sufficient to outweigh the inference that the decision is so unjust as to be (in the context of the statutory source of the power) beyond a lawful exercise of the power.

29    The Chief Justice emphasised, at [8], that the role of this Court in conducting judicial review of the Minister’s decision is supervisory and cannot involve substituting the Court’s view as to how a discretion should be exercised for that of an administrative decision-maker, including in particular substituting its view of what is reasonable for that of the Minister: see also Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 at [66]; Minister for Immigration and Border Protection v Eden [2016] FCAFC 28; 240 FCR 158 at [59].

30    Similar observations were made by the Full Court in CGQ15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 253 FCR 496 at [60], referring to the decision of Wigney J in Minister for Immigration and Border Protection v SZUXN [2016] FCA 516; (2016) 69 AAR 210 at [52], and by the Full Court in BHL19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 94 at [327].

31    The issue therefore is whether the arguments advanced in support of the particulars of this ground of review go beyond a challenge to the merits of the evaluative exercise carried out by the Tribunal, so as to substantiate a finding of legal unreasonableness: BHL19 at [330]. For a decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reasoning, “extreme” illogicality or irrationality must be shown, “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions”: Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 at [148]; SZUXN at [52]; CQG15 at [60].

Nature and seriousness of the conduct

32    Particular (b) challenges the Tribunal’s characterisation of the applicant’s crimes as ‘frequent’, demonstrating a ‘trend of increasing seriousness’, made more serious by their ‘cumulative effect’. The applicant contends that this was not a fair or accurate description of the applicant’s offences, whilst conceding that they were very serious offences. It was submitted that the sentencing judge accurately characterised the offences as having taken place in ‘short compass’, such that they could not be described as ‘frequent offending’, nor did they demonstrate a ‘trend of seriousness’.

33    On 10 October 2019, the sentencing judge made the following remarks:

These are very serious offences because they carry with it a maximum penalty of 20 years imprisonment particularly for the possessing a dangerous drug in excess of 500 grams.

To your credit you have pleaded guilty…

You have pleaded guilty based on a statement of facts that is exhibit 1 before me. You do not challenge those facts. They set out the circumstances of your offending behaviour. In short compass, it seems that you came to the attention of police through a covert operation relating especially to two other individuals. Those two individuals have been charged with trafficking in dangerous drugs.

Count 1, producing a dangerous drug was that on 28 June 2016, police conducted a search at Upper Mount Gravatt. No one was present during the search. They found a total of 1.82 kilograms of cannabis packaged in six vacuum-sealed bags throughout the house. Seventeen separate fingerprints were found belonging to you. Police also found a receipt for the purchase of three boxes of vacuum-sealed bags made on the 24th of June 2016 and the CCTV reveals that you were the purchaser of the vacuum-sealed bags. You are to be sentenced on the basis that you purchased the vacuum-sealed bags for the purpose of packaging a commercial quantity of cannabis.

Count 2, possessing a thing for use in connection with producing a dangerous drug, on the 10th of August 2016, police conducted a search at another place. A total of 39.589 kilograms of cannabis were located. The cannabis was kept in vacuum-sealed bags which were found in the master bedroom and the boot of a Toyota Aurion at the house. And each bag contained approximately one pound of cannabis. A vacuum-sealing machine was found in the master bedroom. Your fingerprints were found on its base. You are to be sentenced on the basis that you possessed the vacuum sealing machine at least momentarily for use in connection with packaging a commercial quantity of cannabis into clipseal bags.

The most serious offence, that is, count 3, possessing a dangerous drug in excess of 500 grams, on 14 September 2016, police conducted surveillance on three cars in the Inala and Sunnybank areas…The total cannabis in the boot was 44.61 kilograms. You are to be sentenced on the basis that you transported the cannabis in the boot of the car from an unknown location with the purpose of allowing that driver to take possession of it. There was a commercial purpose associated with you possessing the cannabis because you were to receive an unknown commercial reward for transporting it and because the intended destination for the cannabis was to be sold onto another customer or customers.

Your actions…involved a preparation of a large amount of schedule 2 drug. Particularly for count 3, it was not an insignificant amount of drugs. Forty-four kilograms was found. You transported it to another. That offence occurred separately from two other offences for which you are to be sentenced today.

(emphasis added).

34    On a fair reading of the sentencing remarks, the sentencing judge’s use of the phrase ‘in short compass’ is apt to describe the short summary of the circumstances of the offending – it does not pertain to the timeframe over which the offences were committed. The timeframe is discussed in later paragraphs. Similarly, the sentencing judge deals with the offences in chronological order from June 2016 to August 2016 and then September 2016. The Tribunal characterised the conduct as ‘frequent’ and as demonstrating a ‘trend of increasing seriousness’. The Tribunal cannot be criticised for describing as ‘frequent’, the commission of three offences within four months. That was an evaluation solely within the purview of the Tribunal.

35    Likewise, it was not unfair for the Tribunal to characterise the offences as showing a trend of increasing seriousness. The third offence occurred separately from the first two offences. The sentencing judge remarked on the more serious nature of that offence as compared with the previous two offences. The applicant contends that, because the sentence imposed for count two (three months) was lower than that for count one (nine months) and count three (three years), no increasing trend could be shown. It is matter of common knowledge that upward trends often have dips along the way and it may well be argued that more than three occasions are necessary to assess a trend. Nevertheless, in these circumstances where the third offence was significantly more serious than the first two, the Tribunal ought not to be criticised for characterising the conduct as demonstrating a ‘trend of increasing seriousness’. This is particularly so when the High Court has held that, on judicial review, the reasons of a decision maker should not be scrutinised minutely with an eye keenly attuned to the perception of error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at [30].

36    The applicant also complains that the offending conduct could not be logically described as ‘cumulative’ within the meaning of para 11.1.1(1) of Direction 79. The applicant submits that there was only one course of conduct – bagging, sealing and selling – and that this could not be considered repeat offending. The Tribunal had considered the sentencing judge’s remarks in which two distinct courses of conduct had been identified. The first being the subjects of counts one and two, and the third count being the more serious count of possession with a commercial purpose. The Tribunal found that there was a cumulative effect to the applicant’s repeat, albeit only thrice, offending (Reasons at [136]).

37    The findings of the Tribunal are neither so illogical nor irrational that no reasonable decision-maker could have made the same findings on the same evidence.

The nature of the risk to the Australian community

38    Particulars (c) and (d) challenge the finding by the Tribunal (Reasons at [144]-[157] and [161]-[166]), that the nature of the applicant’s offences were so serious that any risk of similar conduct in the future was unacceptable (at [156]). The Tribunal’s finding was made in the context of the applicant’s offending having been described as ‘very serious’ and involving offences which carry a ‘maximum penalty of 20 years’. Nevertheless, the applicant contends that this ‘vastly overstated the seriousness of the applicant’s offending and the risk that it represented to the community’. The applicant contends that this finding effectively ‘closed the door’ on the applicant’s case.

39    The Tribunal acknowledged that it was required by para 11.1.2(1) of Direction 79 to have regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. It observed, ‘Some conduct, and the harm that it would cause if it were to be repeated, is so serious that any likelihood that [it] may be repeated may be unacceptable’ (Reasons at [144]). As the Tribunal correctly identified, it is the risk of future harm should the conduct be repeated to which the Tribunal’s attention is directed. The finding in [156] must be read in the context of the paragraph immediately preceding it, where repetition of the applicant’s offending is acknowledged as the relevant consideration. The contention that the finding at [156] effectively ‘closed the door’ on the applicant’s case is itself overstated. The Tribunal said, at [157], ‘A consideration of paragraph 11.1.2(1) therefore weighs heavily against this application’. The Tribunal had not closed its mind to the consideration of other factors that might tip the balance in favour of the application.

40    The applicant also criticises the Tribunal for ‘barely referring to the Nutt Report, other than to “cherry-pick” the references to potential harm caused by cannabis use.’ The Tribunal referred to evidentiary material tendered by both the applicant and the first respondent. The latter comprised a paper published in 2020 by the Australian Institute of Health and Welfare entitled ‘Alcohol, tobacco and other drugs in Australia (AIHW paper) and the National Drug Strategy. The applicant relied on public lecture delivered in 2009, in London, by Professor David Nutt entitled ‘Estimating drug harm: a risky business?’ (Nutt Report). The Tribunal also considered the submission that had been put to it that ‘cannabis is no more harmful than alcohol or tobacco’ but rejected it (Reasons at [151]). The Tribunal observed that such an assertion ‘appears to have been rejected by the Queensland Parliament which has not mentioned alcohol or tobacco in the Drugs Misuse Act 1986 (Qld)’ (Reasons [152]).

41    The Tribunal listed several of the points that arose from the Nutt Report at [163] – [164], including that Professor Nutt rated cannabis below alcohol and tobacco in terms of harm ranking. It also observed that the nature of the harm to individuals or the Australian community should the applicant engage in further criminal conduct is well-documented in the [AIHW paper].

42    Ultimately, it was for the Tribunal to determine the weight that it accorded to the evidentiary material tendered by the parties when considering the risk tolerance of the Australian community for such offending. The fact that not of all the matters raised in the Nutt Report were referred to specifically by the Tribunal does not support an inference that they were overlooked: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [69]; Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593 at [47]; Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2001) 241 CLR 594 at [31]; Meyrick v Minister for Immigration, Migrant Services and Multicultural Affairs [2020] FCAFC 209 at [20].

43    The applicant’s contentions in relation to particulars (b) and (c) rise no higher than inviting impermissible merits review. The Tribunal’s findings are neither so illogical nor irrational that no reasonable decision-maker could have made the same findings on the same evidence.

Best interests of minor children in Australia

44    Particular (e) challenges the weight placed by the Tribunal on the representations made in relation to the best interests of the applicant’s minor child. The Originating Application advanced five sub-particulars under this heading. This was not the approach taken in the written submissions for the applicant, nor in oral argument. It is unnecessary to deal with each sub-particular.

45    The Tribunal determined that ‘An overall consideration of Primary Consideration B weighs in favour of the granting of the visa application’ (Reasons [183]) and that ‘To the extent that Other Considerations weigh in favour of approving the visa, they cannot, even when combined with Primary Consideration B, outweigh Primary Considerations A and C’ (Reasons at [213]).

46    The applicant criticises the ‘glib and shallow words’ of the Tribunal at paragraphs [175]-[179]. The Tribunal said:

175.    In the present case, there is only one relevant child who will be under the age of 18 years at the expected time of decision. That Child G was born in September 2018. The Applicant is her father. They have not been in each other’s physical presence since October 2019 around the time the Applicant was imprisoned. The Tribunal accepts that the Applicant played the asserted role in the child’s life up to the time of his imprisonment. For the purposes of paragraph 11.2(4)(a), consideration of the relationship weighs in favour of the Applicant.

176.    In regard to paragraph 11.2(4)(b), it will be some sixteen years before the child turns 18. Whether the Applicant is to play a positive role in her future would be very much dependent on his capacity to abstain from criminal activity, and whilst his prospects of re-offending has been assessed as low, it nevertheless remains to be seen. If the Applicant did not abstain from criminal activity, the consequences for the child might or might not be significant. There are no present court orders relating to parental access and child care. The Tribunal gives this consideration some limited weight in favour of the Applicant.

177.    In regard to paragraph 11.2(4)(c), the Tribunal considers that provided the Applicant abstains from further offending, which is a matter of some uncertainty, his prior and future conduct would be unlikely to have a negative impact on the child. The Tribunal gives this consideration some limited weight in favour of the Applicant.

178.    In regard to paragraph 11.2(4)(d), the Tribunal accepts that should the Applicant’s visa be refused this would likely result in his separation from the child, and this in turn would have an adverse impact on the child, particularly in consequence of absence of physical contact, for which technology presently provides no suitable substitute. The Tribunal gives this consideration weight in favour of the Applicant.

179.    In regard to paragraph 11.2(4)(e), the Tribunal notes that the Applicant’s partner already fills a parental role in relation to the child. The Tribunal gives this consideration neutral weight.

47    The applicant contends that the Tribunal ‘utterly failed to engage with [Dr Chan’s] predictions on the effect of the visa refusal on the daughter. Dr Chan’s evidence was touched upon at [206], but only to “accept” Dr Chan’s evidence in relation to the child’. The applicant submits that, having accepted Dr Chan’s evidence in so far as it relates to the possible impact of visa refusal on the child, the Tribunal was required to engage with the ‘horrendous consequences’ for the child (emphasis added). The applicant submits that the finding at [178] is legally unreasonable given, so it is argued, that (at [206]) the Tribunal ‘accepted the whole of Dr Chan’s evidence without reservation.

48    The Tribunal referred to Dr Chan’s report at [39]-[47] and to Dr Chan’s oral evidence at the hearing at [71]-[83]. In summary, the Tribunal:

    said it had regard to the Confidential Psychological Report dated 23 October 2020 as prepared by Dr Chan who described himself as a senior clinical psychologist;

    noted that Dr Chan had contact with the applicant, with the assistance of an interpreter, totalling approximately six hours;

    recorded that Dr Chan did not consult with the applicant’s partner and did not have any statement from her nor any medical reports. His sole source of information appeared to be the applicant, whose reports Dr Chan accepted;

    noted the applicant’s family history, academic history, and studies in Australia;

    noted the applicant had reported to Dr Chan that he had never used any illicit drugs but became involved in the offences while trying to resolve his financial difficulties now that they [the applicant and his first wife] had decided to marry;

    noted Dr Chan’s assessment of the applicant’s psychological profile;

    noted Dr Chan’s assessment of the applicant for malingering and deception, being that his profile was healthy and his responses likely to be honest and valid and Dr Chan’s assessment that the applicant suffered from depression, unspecified anxiety and stress at a severe level;

    noted Dr Chan’s opinion that the applicant’s prospects of recidivism as low and that the applicant had very few risk factors;

    noted Dr Chan’s report of the applicant’s comparison of the differences between the quality of life for his wife and daughter living in Australia and living in Vietnam;

    set out in full Dr Chan’s opinion of the impact of the applicant’s visa rejection on the applicant’s daughter, observing that the opinion was ‘notwithstanding that he had neither seen nor interviewed the Applicant’s wife and daughter nor viewed any medical records pertaining to either’ (Reasons at [47]);

    recorded that, in oral evidence, Dr Chan confirmed that his evidence regarding the applicant’s wife and daughter came from the applicant and the literature;

    recorded that Dr Chan gave evidence that in terms of attachment, he considered how much the applicant was involved with his daughter during the first 395 days of her life and whether he was the primary care giver during that time, and whether he did the nappy changing, the feeding, providing care and safety etc.;

    recorded that Dr Chan’s evidence was that if the applicant was heavily involved the baby would be attached emotionally even though at that stage the baby did not have verbal memory. Emotional memory would include attachment to her father. A father’s absence by itself could negatively affect the girl’s development throughout her life. Both physical and emotional absence would be there. Dr Chan’s evidence was that the applicant was actively involved with the baby but was unable to comment definitively on the significance of the attachment;

    recorded that Dr Chan opined that absence could not be replaced with communication via telephone or video link; in a child’s development it is very important for a child to seek physical comfort in the event of emotional distress;

    noted that Dr Chan confirmed that he always draws conclusions based on information and that in this case he had relied on the documents given to him and the history reported by the applicant and assumed that what he was told was accurate. It was assumed that inaccuracies were quite minor. Dr Chan testified that his assessment was not based 100% on the information but was also based on the literature.

49    Dr Chan’s opinion as to the impact of visa refusal on the applicant’s partner and daughter comprised three paragraphs in a thirteen and a half page report. Although Dr Chan refers to the applicant’s partner as his wife and asserts that they are married, there is no evidence of a marriage having taken place and counsel confirmed in oral argument that the applicant and his partner are not married but are de facto spouses. Dr Chan’s opinion was based solely on the literature he had referred to in his report. In particular, he relied on several academic papers, largely based on research conducted outside Australia to draw the conclusion that, ‘The impact of [the applicant’s] visa rejection on [his daughter] would be very significant’. He referred to the literature which indicates that ‘fathers’ involvement in children development is very important’ and that ‘Father absence may affect girls’ development more than boys’. Dr Chan opined that:

Father absence in girls’ life would lower their self-esteem, academic achievement; impair their emotional development, relationship formation; cause mental health problems; increase risking behaviours, and is related to teenage pregnancy, promiscuity, poverty, and rate of violence… [The applicant’s daughter] will become vulnerable to developing serious emotional, social, psychological and sexual problems in the future.

50    In oral evidence before the Tribunal, Dr Chan confirmed that he had not interviewed the applicant’s partner, ‘so all the information is based on those sources [the applicant’s report and the literature], and therefore we – we could have (indistinct) generalised from those information to – you know, to expect what might happen’ (Transcript .2020/7684 22/01/21, P- 44 Line 45 – P45 Line 2). When asked about the reference in his report to father absence, and whether in his view, the detriments would still apply if a baby had never met her father, Dr Chan said:

Yes. As I said, the – you know, the possibility is still there. To what extent and, you know what type of impact might be – you know, might be, you know, based on the individual cases but in general, yes, it does apply to some extent (Transcript .2020/7684 22/01/21 P - 46 Line 33-39).

51    In answer to a question of clarification by the Tribunal Member, Dr Chan said:

To my understanding, my clinical experiences and the literature, my understanding is that impact would still be there but the severity and extent of the impact might be subject to, you know, multiple factors in the girl’s, you know, development. Like for example, biological make-up, like temperament, genetic make-up. (Transcript .2020/7684 22/01/21 P - 47 Line 13-17).

52    After a line of questioning about the likely attachment of the daughter to the applicant in the first 395 days of her life before the applicant was incarcerated, counsel for the applicant asked, ‘You are saying, Doctor, that it could be quite significant. You’re not saying that it necessarily is, is that right?’ Dr Chan responded:

Yes, that’s right because I’m given third-party information. I didn’t do the interview, I didn’t observe that, I, you know I did interview the mother as far as her – so based on the information I’m given, I could only say, yes, it could be quite significant. Yes. If I was able to interview him, as well as the mother, and saw the interactions between those three parties, then I could be able to provide more, you know – give stronger – more ideas’ (Transcript .2020/7684 22/01/2, P – 52 Line 24-31).

It was common ground that Dr Chan had never interviewed the mother.

53    This submission is without merit. The Tribunal’s ‘acceptance’ of Dr Chan’s evidence in so far as it related to the possible, as to opposed to probable or certain, impact of visa refusal on the child was a conclusory statement, reached after the Tribunal’s engagement with and assessment of Dr Chan’s evidence. It is apparent from a consideration of Dr Chan’s report and oral testimony that he was not giving an opinion as to likely detriment to be suffered by this particular child. Rather, Dr Chan was speaking in general terms about what the academic literature, and his clinical experience, told him about the most severe consequences for a female child who grows up without a father. The Tribunal was entitled to accept Dr Chan’s evidence as to the possibility of consequences arising from the applicant’s visa rejection on his daughter whilst at the same time determining to give that consideration weight, but not any greater weight.

54    The Tribunal engaged with, and construed fairly, the evidence provided in relation to the best interests of the child. Whether a tribunal differently constituted might have come to a different conclusion in weighing the matters required to be considered by Direction 79 is not to the point. The Tribunal’s finding on this issue is not so illogical nor irrational that no reasonable decision-maker could have made the same findings on the same evidence

Conclusion

55    For the reasons given, I am not satisfied that the necessary threshold of legal unreasonableness has been surmounted in relation to the reasoning of the Tribunal. The application must be dismissed with costs.

Associate:

Dated:    9 August 2021