Federal Court of Australia

XXBN v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1047

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The Applicant pay the First Respondent’s costs in an amount to be agreed between the parties, and if not agreed to be the subject of a lump-sum determination by a Registrar.

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

REASONS FOR JUDGMENT

MURPHY J:

INTRODUCTION

1    The applicant seeks judicial review of a decision of the second respondent, the Administrative Appeals Tribunal, made on 23 October 2020. By that decision, the Tribunal affirmed a decision of a delegate of the first respondent, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, to not revoke the cancellation of the applicant’s Class BS subclass 801 Partner (Residence) visa pursuant to s 501CA(4) of the Migration Act 1958 (Cth) (the Act).

2    On 27 March 2019, the applicant’s visa was mandatorily cancelled by a delegate of the Minister under s 501(3A) of the Act on the basis that he did not pass the character test because he had a “substantial criminal record” as defined in ss 501(6)(a) and (7)(c) (the visa cancellation decision).

3    Under s 501(7)(c) of the Act, a person has a “substantial criminal record” if the person has been sentenced to a term of imprisonment of 12 months or more. On 27 November 2018, the applicant was convicted in the Blacktown Local Court of multiple offences for assaulting his wife on 16 November 2018 while he was subject to good behaviour bonds. The offences were assault occasioning actual bodily harm (domestic violence), five counts of common assault (domestic violence) and contravention of a prohibition/restriction under an Apprehended Domestic Violence Order (ADVO) (domestic). Initially, the applicant was sentenced to a total term of two years imprisonment with a non-parole period of 14 months; but on 6 March 2019, the District Court of New South Wales varied his sentence to an aggregate term of imprisonment of 18 months with a non-parole period of nine months.

4    Pursuant to s 501CA(4) the Minister was empowered to revoke the original decision if satisfied either that the applicant passes the character test, or there is “another reason” why the original decision should be revoked. As provided under the Act, a delegate of the Minister wrote to the applicant asking whether he wished to make written representations seeking revocation of the visa cancellation decision. On 10 April 2019, the applicant made written representations. Because the applicant does not pass the character test, the only basis upon which the original decision could be revoked was if the Minister or his delegate was satisfied that there existed “another reason” for doing so. On 29 July 2020, the delegate decided not to revoke the visa cancellation decision.

5    The applicant’s amended originating application for review raises four grounds, which allege that the Tribunal erred in its reasoning and conclusion that there was not “another reason” why the visa cancellation decision should be revoked. For the reasons I explain, I am not satisfied that the Tribunal fell into jurisdictional error as alleged.

THE FACTS AND PROCEDURAL HISTORY

6    The applicant is a male citizen of Lebanon who arrived in Australia as the holder of a student visa on 19 March 2015. In May 2016 the applicant met his wife, Ms A, who is an Australian citizen. They married on 4 October 2016. On 24 October 2018, the applicant was granted a Partner (Residence) (Subclass 801) visa in connection with that marital relationship. At the time of the marriage, Ms A had a one year old child from a previous relationship, who was born in August 2015. The applicant and his wife then had two further children, a son born in May 2018 and a daughter born in July 2019. All of the children are Australian citizens.

The criminal convictions

7    The applicant has criminal convictions arising out of two incidents of domestic violence.

The first incident leading to criminal convictions

8    The first incident leading to criminal convictions against the applicant occurred on New Year’s Eve, 31 December 2017. At that time, Ms A was 21 weeks pregnant with the applicant’s first child; and there was an ADVO in place in relation to the applicant, in protection of Ms A. There are no sentencing marks or agreed facts about what occurred on the evening of 31 December 2017. A summary is contained in an application for an ADVO in favour of Ms A’s younger sister, Ms B, which was prepared by the New South Wales police following the incident. The Tribunal also had a NSW Police “Facts Sheet” (Police Facts Sheet), and a NSW Police summary of the applicant’s various interactions with them contained in a NSW Police Customised Report (Customised Report), provided in response to a summons by the Minister and admitted into evidence over the applicant’s objection.

9    The incident occurred in the backyard of the house of Ms A’s parents, where the applicant lived with Ms A in a granny flat. The applicant; Ms A; Ms A’s sister Ms B; and Ms B’s husband, Mr B, were celebrating New Year’s Eve. The summary contained in the ADVO application states:

The accused and [Ms A] had been having arguments earlier on in the day. [Ms A] asked the accused to pick up his belongings in the backyard, which he refused. [Ms A] said, “I’m not picking up your stuff.” The accused leaned to his right and picked up a child[’s] plastic pink chair. The accused threw the chair at [Ms A]. She ducked and the chair missed her. [Ms A] picked up the chair and said “How would you like it if I threw it at you.”

The accused stood up and walked towards [Ms A]. Other family intervened, including [Mr B] and [Ms B]. Family stood in between them both. The accused was still trying to get to [Ms A]. [Ms B] walked over to the accused with her hands extended to assist in separating the accused from [Ms A].

The accused turned to [Ms B] and with [an] opened hand [] swung it towards [Ms B] striking her in the face causing her pain. The accused grabbed [Ms B’s] hijab trying to pull it off. [Ms B] has pulled away from the accused without her hijab coming off.

[Mr B] has pulled the accused inside the granny flat to get him away. The accused had walked into the kitchen of the granny flat and picked out a knife. [Ms B] has seen the knife and ran outside to the front of the property and called police fearing what would happen. [Mr B] has grabbed the accused in a bear hug and restrained him. The knife has come loose and other family have separated all the parties.

This was all captured on CCTV footage at the location.

Police arrived at the location spoke to parties involved. Police gained statements of [Ms B] and [Mr B]. Police gained a version from [Ms A] at the scene and the footage of the incident.

The accused was arrested at the scene and conveyed to Blacktown Police Station where he was introduced to the Custody Manager…The accused stated in his interview it was only an argument with his wife [Ms A] and [Ms B] came over to him and hit him first, and he only pushed her in self defence. Police showed the accused the video of the incident and questioned him on the video which contradicted his version. The accused to struggle to kept [sic] to his version once the video was shown.

The matter is now before the courts.

10    Essentially the same recitation of the relevant events is set out in the Police Facts Sheet.

11    On 1 January 2018, the applicant pleaded guilty in Blacktown Local Court to one charge of common assault of Ms A, one charge of common assault of Ms B, and one charge of knowingly contravening a prohibition or restriction in the ADVO that was on foot. He was subsequently sentenced to a 12 month good behaviour bond for each offence, and on 10 January 2018, a two year ADVO was made against the applicant in favour of Ms B or anyone with whom she was in a domestic relationship.

12    Before the Tribunal, the applicant accepted that he was arguing with Ms A, and that he threw a child’s pink plastic chair in her direction, which he said weighed less than a kilogram, which did not hit her. He also accepted that he slapped Ms B in the face. The applicant, however, strongly denied that he had grabbed a knife. Ms B’s allegation in that regard had not been pursued by the police; and in a statement provided as part the applicant’s representations to the Minister, Ms B withdrew the allegation that the applicant had grabbed a knife and said that she was mistaken. The Tribunal did not treat the allegation in relation to the knife as having been made out (at [42]).

The second incident leading to criminal convictions

13    The second incident leading to criminal convictions against the applicant occurred on 16 November 2018, again at the granny flat shared by the applicant and Ms A. The incident involved the applicant repeatedly assaulting Ms A when she was six weeks pregnant with the applicant’s second child and while he was still on good behaviour bonds for the convictions relating to the New Year’s Eve 2017 incident.

14    On 27 November 2018, the applicant pleaded guilty at Blacktown Local Court to one charge of assault occasioning actual bodily harm (domestic violence); five charges of common assault (domestic violence); and one charge of contravening a prohibition or restriction in an ADVO. He was sentenced to an aggregate term of imprisonment of two years with a non-parole period of 14 months. A final ADVO was also made in favour of Ms A for three years. The good behaviour bonds granted for the incident on 31 December 2017 were revoked and the applicant was resentenced for those offences to community correction orders for 18 months.

15    The applicant appealed the severity of that sentence to the District Court of New South Wales. The assaults and the surrounding circumstances of the 16 November 2018 incident were summarised by the sentencing judge on appeal, Acting Judge Delaney, as follows:

The offender was born in 1992, the person I refer to as the victim was born in 1994. They had been married for two years and had a son five months old at the time. The victim was also then pregnant at 16 November 2018. They lived in a granny flat at the rear of premises at Lalor Park owned by the victim’s parents. On Friday 16 November 2018 at about 4.30pm the appellant and the victim were in the lounge room of that premises and the victim was complaining of having breathing difficulties and asked the appellant to take her to the doctors. An argument occurred between the parties and the victim started to go to her bathroom to calm down and then later decided to leave the granny flat to take herself to the doctor. At this point the appellant stopped her from taking the family vehicle and took her handbag off her to stop her leaving. She left the granny flat and walked towards a road with the appellant following closely behind and then returned to the granny flat. She then again left the granny flat through the front door and the victim stopped about four metres from the front door. The appellant attempted to push her in the back, she fell to the ground. He attempted to lift her up from behind by grabbing her upper arms and then grabbed her by her left hand and dragged her towards the front door of the granny flat. She resisted the appellant’s attempts to push away, she received bruising to her left upper arm because of these actions.

A short time later the appellant ran from the granny flat towards the victim with his right open hand and hit her across the head. She attempted to protect her head by covering it with both of her arms. The appellant then lifted her by her hair and dragged her towards the front door of the granny flat and struggled to move her inside, he used both of his open palms and hit her head from right to left. She was lying on the ground and then the appellant dragged her by the left arm inside the granny flat.

As the victim went and sat in her room within the granny flat the appellant exited the front door, walked to the external window of that room and began arguing with her, spitting through the flyscreen towards her. Once back inside the appellant again started to hit the victim on the head. He placed her against a wall in the lounge room and proceeded to grab her by placing his right hand around her throat for about 10 to 15 seconds. The victim found his grip was very hard and she tried to resist it but was unsuccessful. The appellant let go of her and started to walk towards her daughter’s bedroom. The appellant then followed the victim and the victim was struck by the appellant on the lower right side of her back, he then forced her onto the ground face forward where he pushed his foot onto the lower section of her back causing her pain and to cough repeatedly. As a result of this incident their young son woke from his sleep and an argument occurred about who would comfort him. Thereafter the victim attempted to walk out the front door and the appellant grabbed her around the throat applying pressure, saying “Go to your son”. The victim did not resist this time, due to her attempts not working in the first instance. The appellant then stopped grabbing her before pushing her towards their son’s room.

Soon after the victim was able to exit the granny flat and run to the road yelling for help but no one came to her aid. The appellant went after her and they engaged in an argument before he returned to the granny flat and then left the location. Ultimately an ambulance arrived, the victim was taken to Blacktown Hospital where she was treated for bruising to her left upper arm, right side of her throat and breathing difficulties for which she was later discharged.

On 17 November the appellant and the victim were in a family vehicle with the appellant driving and she asked to go to a doctor because of breathing difficulties. Ultimately there were requests to stop the vehicle, the appellant refused the requests, the victim opened the vehicle door and jumped from the moving vehicle and her left forearm was squashed under the vehicle’s tyre. Police sighted numerous bruises and marks to the body of the victim, CCTV footage from a house depicted the actions of the appellant. Ultimately the police arrested the appellant and charged him with these offences.

16    On 6 March 2019, Acting Judge Delaney varied the sentence to an aggregate term of 18 months with a non-parole period of nine months.

The visa cancellation decision

17    On 27 March 2019, a delegate of the Minister cancelled the applicant’s Partner visa under s 501(3A) of the Act, doing so on the basis that he did not pass the character test because he had a “substantial criminal record” as defined in ss 501(6)(a) and (7)(c) of the Act.

18    The applicant then made various written representations to the Minister seeking to establish that there was “another reason” why the visa cancellation decision should be revoked pursuant s 501CA(4). These included eight representations from Ms A in which she repeatedly begged that the cancellation be revoked, for her sake, because she felt that she could not survive emotionally and financially without the applicant; and for the sake of her three children, who she said need the applicant to be present as their father.

19    The representations provided to the Minister included an undated questionnaire completed by Ms B, together with a handwritten letter dated 27 July 2020 by Ms B referring to the incident on New Year’s Eve 2017. The gist of the statements in the questionnaire is that Ms B had forgiven the applicant for the incident on New Year’s Eve 2017 and that he should be allowed to return to live with Ms A. Amongst other things Ms B said that:

(a)    she and the applicant are “like brother and sister”. He helps her out if she needs anything and “is like a role model” to her;

(b)    the applicant gave her “brotherly support and money” to help her as she is a single mum;

(c)    the applicant was a businessman and a very hard worker and was also very good to customers and employees;

(d)    the prospect of the applicant’s visa being cancelled has affected Ms B a lot because it would mean she will no longer have a brother figure;

(e)     the prospect of the applicant’s visa being cancelled will seriously affect Ms A, and the absence of a father figure for their children makes the prospect even worse;

(f)    if the applicant is removed from Australia it will have a very big impact because three children will no longer have a father, Ms A will not have a husband, and Ms B will not have a brother. Ms B can’t imagine the thought of this happening; and

(g)    we all make mistakes and she had seen a massive change in the way the applicant acts and talks.

20    The handwritten letter by Ms B said that she had been mistaken when she thought the applicant was holding a knife in the incident on New Year’s Eve 2017. She said she did not see the knife with her own eyes and it does not show on the CCTV footage. What she took to be a knife was in fact his mobile phone. The letter again made clear that Ms B had forgiven the applicant for his behaviour in that incident. She said that at the time she thought the applicant was a threat to her but she now considers that he isn’t. She wrote that he has a “good heart” and a “beautiful soul” and noted that he had helped her so much that he was like a brother to her. She said:

I look up to him, and one family matter is not enough to break our friendship. We overcame this as families do, and when the AVO finished I called [the applicant] and we spoke. Everything is great between us and we can’t wait for him to come back home so we can all smile again and be happy. We all love him so much and miss him very much.

The refusal to revoke the visa cancellation decision

21    On 29 July 2020, a delegate of the Minister decided to refuse to revoke the cancellation of the applicant’s visa. It is unnecessary to set out the reasons for the delegate’s decision as it has been superseded by the Tribunal’s decision.

The application to the Tribunal

22    On 4 August 2020, the applicant applied to the Administrative Appeals Tribunal to review the decision not to revoke the cancellation of the applicant’s visa.

23    The Minister provided the Tribunal with the documents which had been before the delegate, and also lodged a 78 page “Tender Bundle” which included:

(a)    Case Note Reports and other documents from the NSW Department of Corrective Services (Corrective Services) recording the applicant’s behaviour while he was in custody and on bail. Although they were generally favourable to the applicant, they included:

(i)    a Case Note Report of an interview of the applicant by a Corrective Services officer on 17 January 2019, containing notes which state that the applicant has “fail[ed] to take responsibility for his behaviour, instead blam[ing] [Ms A] for the offences”; and

(ii)    a “Risk Minimisation Plan” prepared by Corrective Services which described the applicant as having “a poor insight and attitude towards his offences” and stated that the applicant “apportions blame to his wife’s family for interfering in their marriage and believes the sentence he was given was harsh”.

(b)    NSW police records including:

(i)    a two-page list of 32 events in which the applicant had interactions with the police;

(ii)    the Customised Report which consisted of 15 pages of closely typed records of interactions which the applicant had with the police; and

(iii)    Court Attendance Notices and the Police Facts Sheet in relation to the incident on New Year’s Eve 2017.

24    The hearing of the application was listed for 6 October 2020. On 29 September 2020, the applicant’s solicitor sent an email to the Tribunal and the Minister’s solicitor which relevantly said:

The applicant notes that the respondent has included in the Tender Bundle various documents taken from the NSW Police events records. The applicant wishes it to be made absolutely clear that he will object to the tender of any evidence (including police records) where the witness is not made available for cross-examination.

(Emphasis in original).

25    At the commencement of the Tribunal hearing on 6 October 2020, counsel for the applicant objected to the tender of the Customised Report on the basis that parts of the Customised Report were not relevant to a fact in issue and therefore it should not be admitted. At that point, Applicant’s counsel said the Customised Report was the only document to which the applicant objected to tender. Counsel for the Minister agreed that some parts of the Customised Report were not relevant but sought to tender the document on the basis that it was summonsed from the NSW police by the Minister, and in general, it was relevant and admissible. The Tribunal ultimately said that it would admit the whole of the Customised Report and later decide what parts were relevant and what weight to attribute to such parts. Applicant’s counsel submitted that if the Minister wished to rely on allegations contained in any of the Customised Report that should be put to the applicant in cross-examination. The Tribunal accepted that such a course was appropriate.

26    In closing submissions, the applicant’s counsel reiterated the objection to the tender of the Police Facts Sheet, the Customised Report and the Corrective Services records being admitted into evidence in circumstances where the maker of the statement had not been called to give evidence before the Tribunal.

27    The Customised Report included police reports of a variety of interactions that the applicant had with police, some of which were plainly irrelevant (such as an occasion where he reported that he had lost his wallet), and other occasions which could be understood to reflect poorly on him but where no criminal proceedings had resulted. They included the alleged incidents set out below.

28    20 January 2017: The Customised Report states that at about 12:12 pm on 20 January 2017, Ms A called “000” stating that she wanted an AVO against her husband and that she was in the suburb of Punchbowl. Local police attended her home for a welfare check but she was still in Punchbowl. Police then contacted Ms A and she told them that everything was okay and she did not want an AVO anymore. Police asked her to attend Bankstown police station to be sighted and to report the matter. She did so. The police did not observe any injuries, and they reported that she did not appear concerned. Ms A told the police that she was fine and no longer wanted an AVO. The report said that no fears were held by Ms A or the police. No action was taken by the police.

29    In the hearing before the Tribunal, the applicant said that the incident on 20 January 2017 was just “an argument” and Ms A had tried to “scare” him by calling the police. Ms A was not asked about this incident.

30    30 April 2017: The Customised Report states that Ms A contacted police stating that at about 5:00 pm on 30 April 2017 she and the applicant began arguing about the amount of money that the applicant spends on motor vehicles. The argument continued for some time until Ms A called the police out of anger towards the applicant. Police attended and spoke to both parties. Both parties provided the above version of these events and denied that the incident escalated past a verbal altercation. Both parties denied having any fears for their respective safety. Police were unable to see any visible injuries or damage to property, and when police arrived the argument had ceased and Ms A and the applicant were getting along. Police questioned Ms A extensively in regard to the assault that had been alleged by Ms A when she contacted police. She said, “I was angry at him and exaggerated. I am sorry I lied about what happened”. The report concluded that no fears were held by Ms A or the police. No action was taken by the police.

31    Before the Tribunal the applicant testified that he did not recall this event. Ms A was not asked about it.

32    16 July 2017: The report states that Ms A contacted the police and told them that at 8:30 pm on Sunday, 16 July 2007 she and the applicant were at home in their bedroom and began arguing. The argument escalated and the applicant punched Ms A an unknown number of times to the right side of the face, in the temple region, causing pain and slight bruising to the area. Ms A contacted the police and the applicant left the location. Later on that date police attended the location and obtained the above version of events from Ms A. She showed police what appeared to be slight bruising to the area of her temple on the right side of her face. She said that they had an argument that “got out of hand”. Ms A also told the police that prior to them attending she had contacted the police again and requested that they no longer do so. The police advised her that due to the domestic nature of the incident the police were obliged to attend. On attending the police asked for further details about the alleged assault but Ms A repeatedly refused to provide them and said that she was not willing to provide a statement or attend court. When asked why she had contacted police she said it was “a scare tactic”.

33    The police advised Ms A that an ADVO would be applied for by the police, on her behalf. She said that she did not want an ADVO and would not come to court as “she [felt] it would ruin her relationship” with the applicant and “only cause more problems”. On Monday, 17 July 2017, the applicant attended Blacktown Police Station and spoke with police in relation to the incident. The report states that he was cautioned and told the police, “nothing happened, it was just an argument”. Police explained and served the ADVO on the applicant. No other action was taken by the police. The report concludes that Ms A said that she holds no fear of the applicant, but notes that the police fear the applicant will assault Ms A in the future.

34    Before the Tribunal the applicant denied that he had assaulted his wife. Notwithstanding that he pleaded guilty (on 1 January 2018) to having contravened the ADVO, he denied the existence of that ADVO. Ms A accepted that the applicant was on an ADVO for the incident on 16 July 2017, but she said that she called the police to give her “comfort” and as a “power tool against my husband”. She said that she actually had a “scrape” on her face from something else but accepted that she told the police that the applicant had done it.

35    11 July 2018: The report states that at approximately 8:15 am on 11 July 2018 police attended the home of the applicant and Ms A after receiving a missed call from that address. When the “000” operator called back to that number there was no answer. Police attended the home and spoke with Ms A who said that she and her husband had an argument during the previous night. She was not forthcoming with information and just stated that there was a verbal argument due to the stress of the newborn baby and about dinner. Ms A said that it was stupid argument that did not get physical and involved no threats; she said that she held no fears and the police stated that they held no fears. No further action was taken by the police.

36    Before the Tribunal the applicant said this was “just an argument”. Ms A repeated that her calls to police were “just a scare tactic, like a threat.” and stated, “I was trying to control my husband with it”.

37    22 October 2018: The report states that Ms A contacted the police. At about 8:45 pm on 22 October 2018 the police attended the home of the applicant and Ms A. Police spoke with Ms A who told them that she had a verbal argument with the applicant, at the height of which, she said the applicant stated, “You better shut up before I hit you”. The argument continued and Ms A then locked herself in her own room while the applicant left. In giving her version of events Ms A was “extremely vague” and she changed her version several times. Despite being pressed by the police she never spoke about any “shoe throwing” and she declined to give the police a statement. The police had doubts as to the validity of Ms A’s version. They then spoke with the applicant who told them that they did indeed have a verbal argument but he never threatened her and maintained that she was the aggressor. The husband was consistent in his story and never wavered. He was not injured, he expressed no fears to the police and he mentioned no “shoe throwing”. The police took no further action.

38    Before the Tribunal Ms A denied that the applicant made any threat. The applicant initially denied having made the threat but then expressed uncertainty because it was such a long time ago.

The Tribunal decision

39    Following a hearing in which the applicant was represented by counsel, the Tribunal decided, on 23 October 2020, to affirm the delegate’s decision not to revoke the cancellation of the applicant’s visa. I will deal with the relevant parts of the Tribunal’s reasons when dealing with the grounds of the application for judicial review.

THE APPLICATION FOR JUDICIAL REVIEW

Ground 1

40    Ground one alleges as follows:

1.    In determining the nature and seriousness of the applicant’s conduct, the second respondent (the Tribunal) failed to comply with the rules of procedural fairness and otherwise conducted its review of the decision of the first respondent in a manner that was unreasonable.

Particulars

(a)    In relation to an incident which occurred on 31 December 2017 (Decision at [29]-[45]) which led to the applicant being convicted of two counts of assault and one count of breach apprehended domestic violence order:

(i)    The Tribunal uncritically accepted an account of the incident which was set out in a Police Facts Sheet.

(ii)    The Tribunal did not provide the applicant with any opportunity to cross-examine the persons referred to in the Police Facts Sheet.

(iii)    The Tribunal preferred the untested account of the incident in the Police Facts Sheet to the accounts of the applicant and his wife, who were cross-examined on the incident and gave a different account, and the applicant’s sister-in-law, who was available, on request, for cross-examination, and also gave a different account of the incident.

(iv)    The Tribunal erroneously considered the evidence of the applicant and his wife, that the applicant had thrown a small pink chair for kids which weighed less than one kilogram in the direction of his wife and sister-in-law, as an insignificant distinction to the description of the incident in the Police Facts Sheet.

(b)    In relation to an incident which occurred on 22 October 2018 which did not lead to any charges (Decision at [47]-[51]):

(i)    The Tribunal uncritically accepted an account of the incident which was set out in a Police document entitled “Customised Report”.

(ii)    The Tribunal did not provide the applicant with any opportunity to cross-examine the persons referred to in Customised Report.

(iii)    The Tribunal preferred the untested account of the incident in the Customised Report to the accounts of the applicant and his wife, who were cross-examined on the incident and gave a different account.

The applicant’s submissions

41    The applicant noted that under the heading “Background and Offending” the Tribunal set out not only the two incidents on 31 December 2017 and 16 November 2018 which led to the applicants’ criminal convictions, but also summarised the other five incidents recorded in the Customised Report (as set out above at [28]-[38]). Before summarising those other incidents, the Tribunal said (at [20]):

In the two years the Applicant lived with Ms A, there were multiple calls to the police with respect to alleged verbal conflict or violence between the Applicant and Ms A. These are recorded in New South Wales Police case notes that were obtained by the Respondent under summons. In addition, there were two episodes of domestic violence that resulted in the Applicant being convicted of (multiple) violent offences. The facts of these are set out in the police case notes and other documents including court sentencing remarks and an appeal decision.

42    At times the Tribunal merely repeated the police record (e.g. at [21], [22]), and at other times it set out the applicant’s and Ms A’s evidence before the Tribunal in relation to the alleged incident, and expressed a view as to the plausibility of that evidence.

43    In relation to the alleged incident on 16 July 2017, after summarising the police record in the Customised Report, the Tribunal noted the following (at [26]-[28]):

26.     In the hearing the Applicant denied having assaulted Ms A. He also initially denied having gone to the police station and having an ADVO served on him. He then conceded that he may have gone to the police station, saying it was a long time ago and he could not remember, but that he did not assault Ms A.

27.     Ms A was asked about this incident. She said she had lied to the police about the Applicant hitting her. In relation to the bruising on her face, she said:

“So I actually already had a bruise on my face and I actually just told the police that it was from my husband but it ended up it wasn't. And it wasn't actually a bruise, it was just like a scrape (indistinct).”

28.     She gave the following additional evidence about her call to the police:

TRIBUNAL: Did you say that you had got them out as a scare tactic?

WITNESS: Yes. Like I was saying earlier I used to use it as like a power tool against my husband.

TRIBUNAL: The police records say that you said you would not come to court because you thought it would ruin your relationship with your husband?

WITNESS: Yes, because then we won’t be able to live together and (indistinct), you know, happily married. Why would I want to jeopardise that over an AVO that I never wanted (indistinct).

TRIBUNAL: I see, so you thought it was – that being physically separated from each other would ruin your relationship?

WITNESS: Yes, (indistinct) why I didn't end up going to court, so I think I would still live with him but for (indistinct) in mind keep the no harassment stalking [protection] the number 1 on the AVO orders.

TRIBUNAL: But you didn't think calling the police on him and making a false allegation might ruin your relationship with him?

WITNESS: Well, at the time I was very – I wasn't very clear minded, you know.

44    In relation to the incident on New Year’s Eve 2017 (which led to the applicant’s first set of convictions), the Tribunal summarised the police records (at [30]-[31]), and then said the following (at [32]-[35]):

32.     The following day, the Applicant pleaded guilty in the Local Court to two offences of common assault and one offence of contravene prohibition/restriction in AVO (Domestic). He was sentenced to a 12 month good behaviour bond for each offence.

33.     There are no sentencing remarks before me, but the Facts Sheet provided to the court repeats the facts as set out in the police records.

34.    In the present proceedings the Applicant admitted that he threw the chair but said he did not throw it at Ms A but “next to” her. He said:

“It’s a small pink chair for kids. It’s like less than one kilo and my wife was far away. It’s not like next to me, it was like four metre away from me and I chucked that chair and I didn't get her, like it was far away from her….Just to scare her.”

35.     The Applicant also maintained that he only pushed Ms B, saying “I said I didn’t slap her, I pushed her away from me with my open hand”.

45    Later (at [39-[42]) the Tribunal referred to Ms B’s letter of support in which she changed her account in relation to the allegation that the applicant grabbed a knife. Ms B’s letter stated, “I mis-read what I saw and what I thought was a knife was his phone”. The Tribunal noted (at [42]) that the applicant denied that he grabbed a knife, but considered it to be “highly implausible” that Ms B, Mr B and the family members mistook a mobile phone for a knife given that, according to the police record, they “removed the knife” after it came loose from the applicant. The Tribunal stated, however, that the applicant was not convicted of being in possession of a knife and there was no allegation that he threatened or attacked anyone with a knife. Therefore, the Tribunal did not consider the allegations regarding the knife to be material.

46    The Tribunal noted (at [43]) that the applicant denied knowing that he was subject to an ADVO when he committed the assaults on New Year’s Eve 2017. The Tribunal however said:

I find that implausible given the police evidence that he went to the police station and the police explained the ADVO to him, and his concession that he attended the police station. Further, the Applicant pleaded guilty to breaching the ADVO.

47    In relation to the alleged incident on 22 October 2018, after summarising the police record (at [47]), the Tribunal set out parts of the cross-examination of Ms A and was sceptical of the evidence of both the applicant and Ms A (at [48]-[51]). In those paragraphs the Tribunal said:

48.     In the hearing the Applicant was asked if he threatened to hit Ms A in the following exchange:

MR REILLY: All right. Now, next the police were called in October 2018, and your wife apparently said that you had told her that she better shut up before you hit her.

WITNESS: Yes, but I didn’t hit her.

…

MR REILLY: …All right. Now I have moved onto October 2018. The police say that they attended the house, and your wife had said that you had threatened to hit her?

APPLICANT: October 2018.

MR REILLY: Can you tell us anything about that?

APPLICANT: You know, it’s just an argument. An argument between me and my wife.

MR REILLY: All right.

APPLICANT: But I never like, pushed - - -

TRIBUNAL: [Applicant] are you saying - did you say that, though? Did you make that threat?

APPLICANT: I didn’t hit my wife. Only the last incident.

TRIBUNAL: No, I am asking did you say that you would hit her?

APPLICANT: No, no, I didn’t.

TRIBUNAL: Are you saying that you didn’t threaten - I understand you said that you didn’t hit her. But I am asking, did you make the threat to hit her?

APPLICANT: Yet, but honestly - honestly, I can’t remember. I can’t remember if I said it or not. But I don’t think so. It’s a long time ago, and I’m not going to - like, I’m not going to remember sentence or – it’s a long time ago. But I don’t think I said that.

49.     This incident happened only two years ago, and Counsel for the Respondent was not asking the Applicant to recall the kind of statement that is not particularly memorable. He asked him to recall whether he threatened to hit his spouse. It stretches the limits of credibility that the Applicant does not remember whether or not he made that threat, unless it was not unusual for him to make such threats. Either he did make the threat and likely remembers doing so or it was not unusual for him to make such threats.

50.     Ms A was equally evasive when she was asked if the Applicant had made that threat in the following exchange:

MR REILLY: All right, well, I put it to you that you did tell the police that your husband had threatened you?

WITNESS: Well, he never hit me, there was no actual violence. There was verbal standard I guess in all marriages.

TRIBUNAL: [Ms A], could you answer the exact question, please, that was asked?

WITNESS: Sorry, what’s the exact question?

TRIBUNAL: The exact question was it was put to you that he threatened you, that he said he would – shut up before he hits you?

WITNESS: No, he never said that.

MR REILLY: Well, the police say that that’s what you told them?

WITNESS: Yes.

51.     Ms A did agree that she locked herself in her room. Less than one month later, the Applicant did hit Ms A and he inflicted other assaults on her.

48    The applicant described the Tribunal’s conclusion - that either the applicant threatened his wife so often that he could not remember that particular incident or that he was not telling the truth and he did make the threat - as a false dichotomy.

49    In relation to the assaults on 16 November 2018, in relation to which the applicant was convicted on various charges, the Tribunal set out the police record in detail (at [52]-[60]), and noted (at [61]) that after the incident Ms A was taken to hospital by ambulance where she was treated for bruising to her left upper arm and the right side of her throat, and for breathing difficulties. She was discharged later that night. It said that the applicant went to the hospital but Ms A did not reveal to anyone that the applicant had inflicted her injuries.

50    The Tribunal also noted the incident which occurred on 17 November, the following day, when Ms A threw herself out of their moving car. The Tribunal said at [62]:

The following day, around 2:20pm, the Applicant, Ms A and their baby son were in their family vehicle with the Applicant driving. Ms A asked to go to the doctor due to breathing difficulties. They argued and Ms A asked the Applicant to stop the vehicle. The Applicant refused and Ms A said she would “jump out”. The Applicant again refused to stop. Ms A then opened the vehicle door and jumped from the moving vehicle. An ambulance took Ms A to hospital. Ms A told police she had jumped out of the vehicle of her own volition. She then disclosed the assaults that happened the day before. The police obtained CCTV footage from the house [] that depicted the actions of the Applicant toward Ms A while they were between the rear of the main dwelling and the granny flat, which corroborated Ms A’s version. The Applicant admitted to assaulting Ms A but denied choking her.

51    The applicant submitted that the Tribunal erred in referring to Ms A having thrown herself out of a moving car because the sentencing judge had considered that to be irrelevant. Acting Judge Delaney did not, however, refer to the 17 November 2018 incident as irrelevant; but rather, confirmed that there were no charges in relation to it and said that he described it merely for the incident in “context”.

52    The Tribunal referred (at [74]-[76]) to the records in the Customised Report and also to the applicant’s and Ms A’s evidence before the Tribunal, expressing scepticism about Ms A’s claims to have called the police as a means of controlling the applicant. The Tribunal confirmed (at [76]) that it “was not prepared to accept that the Applicant committed any acts of physical violence apart from those that resulted in a conviction”; however, it found that “it is apparent that the [a]pplicant’s relationship with Ms A involved conflict that sometimes left Ms A feeling unsafe” and also found that the applicant threatened to hit Ms A on at least one occasion.

53    On the applicant's argument, the Tribunal accepted documents with allegations by police and others who are not available for cross-examination, doing so over the applicant’s objection. He submitted that by allowing the documents to be tendered into evidence, the case against the applicant before the Tribunal was “loaded up” with pages of prejudicial information, which was repeated by the Tribunal in a manner that suggested that the applicant had a long and serious history of abuse against Ms A despite their repeated protestations that the events had not occurred as claimed in the police records. He argued that police summaries are not impartial; rather, they are hearsay statements prepared with the self-serving purpose of proving a criminal offence, citing McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 223; 385 ALR 405 at [322] (Allsop CJ, Besanko and Mortimer JJ). He said it was unfair of the Tribunal to admit these into evidence and to give them weight without allowing them to be tested by the applicant.

54    The applicant said that the consequences of a decision by the Tribunal not to revoke the visa cancellation decision would be disastrous for the applicant and his family, as he would be effectively banished from Australia forever; his wife would likely suffer severe and long lasting emotional and economic loss, and their three children would likely lose any physical contact with their father until they are old enough and with sufficient means to meet outside Australia. In those circumstances, he said that the highest standards of procedural fairness needed to be observed to ensure that the applicant had every opportunity to respond to the case being made against him.

55    The applicant submitted that it was simply not good enough for the Minister to obtain the Customised Report from police and the Case Note Reports from Corrective Services, which he described as potentially hostile third parties, to tender as evidence against the applicant, without the applicant being able to confront and challenge those third parties. He said that if a requirement to call relevant witnesses in person caused cases concerning visa cancellations under s 501 of the Act to become lengthier or more expensive as a result, so be it. He argued that too much rides on these cases for applicants to be burdened by allegations based on “inexact proofs, indefinite testimony or indirect references”, citing Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93; 226 FCR 555 at [16] (Logan J) and [111] (Flick and Perry JJ).

Consideration

56    I have no difficulty in accepting the applicant’s submission that he and his family face serious emotional damage and financial loss if the visa cancellation is not revoked. The applicant will be removed from Australia, away from his wife and children, and will be unable to see them again unless they can afford to travel to meet him overseas. For an apparently loving father, that is an enormously serious consequence. It is also enormously serious for their three children who will be raised without a father being present. The applicant will also be required to forsake the other family and friendship bonds he has formed in Australia and give up the apparently well-paid landscaping business that he developed.

57    I am not though persuaded that the Tribunal fell into jurisdictional error as alleged under this ground of review.

58    First, s 33(1)(c) of the Administrative Appeals Tribunal Act 1975 (Cth) provides that the Tribunal “is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate”. While persons before the Tribunal must be provided with natural justice there was no requirement for the Tribunal to apply the rules of evidence; relevantly to the present case, the rule against hearsay evidence in s 59 of the Evidence Act 1995 (Cth). Section 33(1)(c) establishes a scheme under which “the Tribunal, subject to the rules of natural justice, properly may rely on any probative material that is relevant to its function”: Re Tarrant and Australian Securities and Investments Decision [2013] AATA 926; 62 AAR 192 at [75], cited with approval in Sullivan at [91] (Flick and Perry JJ). In Collins v Minister for Immigration and Ethnic Affairs [1981] FCA 162; 36 ALR 598 at 601 (Fox, Deane and Morling JJ) the Full Court said “subject to the obligation to observe the requirements of natural justice [the Tribunal] can inform itself as it chooses. (See s.33(1)(c)  of the Administrative Appeals Tribunal Act, 1975.)”

59    The procedural flexibility afforded to a statutory tribunal such as the Administrative Appeals Tribunal, freed from the rules of evidence, does not though absolve it from the obligation to only make findings of fact based upon evidence which is logically probative, to which the rules of evidence provide a guide: Sullivan at [97] (Flick and Perry JJ). It is established that a decision of such a tribunal must be based on evidence which is reasonably capable of sustaining it: Minister for Immigration and Ethnic Affairs v Pochi [1980] FCA 106; 44 FLR 41 at 67 (Deane J, with whom Evatt J agreed). For example, the Tribunal cannot make findings based on “evidence” which is no more than “suspicion, opinion and hearsay” or speculation; nor can it be left, on the material before it, “in the situation where the Tribunal considered that, while the conduct may have occurred, it was unable to conclude that it was more likely than not that it had”: Pochi at 58, 62 (Deane J with whom Evatt J agreed). Facts can be fairly found without demanding adherence to the rules of evidence: Consolidated Edison Co v National Labour Relations Board 305 US 197 at 229 (Hughes CJ), cited with approval by Brennan J in Pochi v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 33; 36 FLR 482 at 492.

60    Second, contrary to the applicant’s submissions, the notes contained in the Customised Report can be distinguished from police summaries prepared for a court hearing for the purpose of assisting the prosecution of an offence. Relevantly, the Customised Report contains contemporaneous notes made by various different police officers setting out either: (a) the content of telephone calls received by them from Ms A claiming that she had been threatened with assault by the applicant or had been assaulted; or (b) the content of the information provided by Ms A or the applicant when the police attended upon them. Further, in relation to the notes in the Customised Report of the alleged events to which the Tribunal referred where no police action was taken, it cannot reasonably be said that the notes were prepared for the self-serving purpose of the police making out a case against the applicant. Further, there is nothing to show that the various police officers who made contemporaneous notes of the alleged incidents were hostile to the applicant.

61    Third, it is necessary to understand that although the applicant’s objection to the tender of the police and Corrective Services’ records was broad, this appeal only concerns the tender of documents relating to the incident on 31 December 2017 (for which the applicant was convicted of criminal charges) and an alleged incident on 22 October 2018 (which the applicant denies).

62    The applicant’s assertion that the Customised Report included a report of an alleged incident on 22 October 2018, and the Tribunal did not provide the applicant with an opportunity to cross-examine the police officer who made that report, is correct. But the applicant’s email objecting to the Minister tendering the Customised Report and the Corrective Services’ reports was far from focussed; rather, he objected to “the tender of any evidence (including police records) where the witness is not made available for cross-examination”, and the objection was not made until 29 September 2020, only a week before the hearing. Allowing that unfocussed objection would have meant that, if the Minister wished to rely on any parts of those records, he was required to contact and arrange for the numerous officers who made contemporaneous notes of each alleged incident to attend the Tribunal for cross-examination. Allowing that objection would have inevitably meant that the case would have had to be adjourned.

63    That must also be understood in light of s 500(6L) of the Act which required that the application be heard and decided by the Tribunal within 84 days of the delegate’s decision. In my view, it was not practicable to expect the Minister to make available for cross-examination every police officer who created the relevant notes.

64    Fourth, I cannot see how the applicant suffered procedural unfairness through being unable to cross-examine the police officer who made the notes of the alleged 22 October 2018 incident. As is apparent from the notes, the relevant police officer was not present when the alleged threat, “you better shut up before I hit you”, was said to have been made, and the officer could only give evidence about what he or she said they were told by Ms A and the applicant. I can see no procedural unfairness when both the applicant and Ms A were on notice of the allegation in the notes, were cross-examined in relation to the alleged incident, and they provided their account to the Tribunal, which the Tribunal noted at [48] and [50]. It was a matter for the Tribunal to decide what to make of all the evidence.

65    The applicant’s real complaint is that the Tribunal seemed to prefer the untested account in the Customised Report about what the applicant had said on 22 October 2018 compared to the account of Ms A who said that no such threat was made and the account of the applicant, which was that he could not remember whether he said the threat or not but that he did not think he did. The Tribunal found (at [49]) that, in relation to an incident that happened only two years ago, it “stretches the limits of credibility” that the applicant did not remember whether or not he made that threat. The Tribunal also found (at [76]) that, in relation to Ms A, “it is unavoidably the case that she either made false reports to police, or if those initial reports were true, she gave false evidence to the Tribunal”. The assessment of the applicant’s and Ms A’s credibility was a matter for the Tribunal and the applicant did not contend that there is no evidence to support the findings the Tribunal made as to their lack of credibility, nor that it was legally unreasonable, irrational or illogical for the Tribunal to make such findings.

66    Fifth, nor can I see how the applicant suffered procedural unfairness through being unable to cross-examine the police officer who prepared the Police Facts Sheet in relation to the prosecution of the applicant for the incident on New Year’s Eve 2017. Again, as is apparent from the notes, the relevant police officer was not present when the alleged incident occurred, and he or she would only have been able give evidence about what they said they were told by Ms A, Ms B, Mr B and the applicant, and what they saw on the CCTV footage.

67    The applicant pleaded guilty to those offences, and if he wished to dispute the accuracy of the police’s account of those offences, that was the time to do so. Further, I cannot see any procedural unfairness given both the applicant and Ms A were on notice that the New Year’s Eve 2017 incident was material, they were cross-examined in relation to the incident, and they gave their account of the incident to the Tribunal, which the Tribunal noted.

68    Further, and importantly, before the Tribunal the applicant did not deny the incident occurred as recorded in the Police Facts Sheet except to say that:

(a)    he did not actually throw the child’s pink plastic chair at his pregnant wife, but rather threw it near her so as to frighten her; and

(b)    that he pushed Ms B with an open hand rather than slapped her.

His evidence was to some extent in conflict with that of Ms A who, although she sought to minimise his conduct, nevertheless said that he threw the chair in her direction and slapped her sister in the face. Further, neither in her questionnaire or her handwritten letter did Ms B deny that the applicant hit her or threw a chair at Ms A.

69    Again, the applicant’s real complaint is that the Tribunal did not accept his account. The Tribunal said (at [41]) :

The Applicant pleaded guilty to common assault and contravention of an ADVO arising from the act of throwing a chair at Ms A, and common assault arising from the act of hitting Ms B in the face with an open palm. I am satisfied that he in fact did those things. These are not matters about which the Applicant could realistically have been mistaken. I am satisfied that he was dishonest to the police and to the Tribunal about these assaults. Further, it speaks to the Applicant’s attitude about domestic violence that when he denied having thrown the chair at Ms A, he said he threw it “Just to scare” her, as though that would have been acceptable.

70    The decision as to whether to accept the applicant’s account was a matter for the Tribunal and the applicant has made no suggestion that there is no evidence to support the Tribunal’s finding in relation to the 31 December 2017 incident nor that it was legally unreasonable, irrational or illogical for the Tribunal to so find.

71    One can readily envisage circumstances where allowing hearsay evidence will operate to deny procedural fairness to the affected person, but I am not persuaded of that in the circumstances of the present case, let alone any absence of procedural fairness which rises to level of jurisdictional error. Procedural unfairness is a matter of practical injustice, and demonstration of a bare or technical denial of procedural fairness alone is not sufficient to show jurisdictional error; that is, that the decision-maker exceeded the decision-making authority conferred by the statute in making that decision: MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; 95 ALJR 441 at [33], [46] (Kiefel CJ, Gageler, Keane and Gleeson JJ).

72    It is appropriate to dismiss this ground of the application.

Ground 2

73    Ground two alleges as follows:

In determining the risk that the applicant posed to the Australian community, the Tribunal made a material finding at [93], that “…the weight of the evidence indicates a real possibility that [the applicant] will have another, or other, intimate partner/s, and therefore there is potential for him to assault another intimate partner or people associated with that person”. This finding was based on nothing more than speculation, without any probative basis.

74    This ground is based in the Tribunal’s finding (at [93]), which said in full:

In September 2020 the Applicant told a psychologist that if he and Ms A cannot live in harmony with each other, he is prepared to break up with her, thus prioritising their children over her. Despite the devotion the Applicant has expressed regarding Ms A, the weight of the evidence indicates a real possibility that he will have another, or other, intimate partner/s, and therefore there is potential for him to assault another intimate partner or people associated with that person.

75    The applicant submitted, and it is uncontentious on the material, that he has reconciled with his wife and he contended that in such circumstances the Tribunal erred in finding that there was a “real possibility” that he would have other intimate partners. He accepted that there was some evidence, being the psychologist’s report, that the applicant might one day separate from Ms A, but submitted that there was no evidence that he would re-partner. On his argument there was no rational or probative connection between the evidence as to the applicant’s relationship with Ms A and the finding that there was a “real possibility” that the applicant would re-partner; he contends that finding was nothing more than speculation, citing DBX16 v Minister for Immigration [2021] FCA 238 at [86]-[88], [101]-[103] (Kenny J).

Consideration

76    There is little force in this ground of the application. The relationship between the applicant and Ms A had plainly been a troubled one. Amongst other things, and putting to one side the disputed events in relation to which no police action was taken: (a) the applicant was the subject of an ADVO for an alleged incident involving his wife on 16 July 2017. Ms A accepted that he was on an ADVO for that incident, and although the applicant denied the existence of the ADVO to the Tribunal, there were strong grounds for the Tribunal to find that he was under it because he pleaded guilty on 1 January 2018 to having breached it; (b) the applicant pleaded guilty to assaulting Ms A and her sister on New Year’s Eve 2017; and (c) the applicant pleaded guilty to seriously assaulting Ms A on 16 November 2018.

77    Further, and importantly, Ms A said that the day after she was assaulted on 16 November 2018 the applicant raised the possibility of separation by saying that if their relationship was going to remain in the state that it was, it was not healthy, and they should separate. The applicant gave evidence at the Tribunal that on 17 November 2018, he told Ms A, “look, if you want to stay like this, we better separate and I’ll go and marry someone else”.

78    The applicant was 28 years old at the time of the Tribunal’s decision. In those circumstances, and looked at together with the psychologist’s report, it was not speculation or conjecture for the Tribunal to observe that there was a “real possibility” that their marriage would end, and the applicant would later form an intimate relationship with somebody else. It was just to recognise, based on ordinary human experience, that people, particularly young people, who have an intimate relationship that comes to an end often subsequently enter into a new intimate relationship. There was therefore a real possibility that would be the case for the applicant: see Republic of Nauru v WET40 (No 2) [2018] HCA 60; 362 ALR 235 at [35] (Gageler, Nettle and Edelman JJ).

79    It can be accepted, as Kenny J noted in DBX16 (at [86]-[87]), that “ordinary human experience” cannot take the place of evidence or rational analysis where that is needed, citing DQM18 v Minister for Home Affairs [2020] FCAFC 110; 278 FCR 529 at [52], [53] and [58] (Bromberg and Mortimer JJ) and Viane v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 144; 278 FCR 386 at [44] (Kerr and Charlesworth JJ). But the facts of the present case and the type of ordinary human experience relied on in the present case is quite unlike those in DBX16, DQM18 and Viane. On the facts of the present case I can see no error in the Tribunal’s finding.

80    It is appropriate to dismiss this ground of the application.

Ground 3

81    Ground three alleges as follows:

In determining the weight to be given to the best interests of minor children affected by its decision, the Tribunal at [165] erroneously considered itself bound by Direction No 79 to allocate less weight to this factor where there have been long periods of absence or limited meaningful contact between the applicant and the minor children when, in fact, Direction 79 at par. 9.2(4)(a) merely stated that less weight should “generally” be given in such circumstances.

Ground three erroneously refers to “para. 9.2(4)(a)” of Direction 79, when paragraph 13.2(4)(a) details the relevant obligation. I have treated this as a typographical error and have considered this ground by reference to paragraph 13.2(4)(a).

82    This ground is based in the Tribunal’s statement (at [165]) as follows:

The Applicant has spent significant portions of these children’s lives absent from the family home. I must allocate less weight when there have been long periods of absence or limited meaningful contact. I acknowledge that before the pandemic, the children were regularly visiting the Applicant and spending significant time with him. Since visits were cancelled, they communicate remotely. Still, he has not had a substantial physical presence in the lives of Child X or Child Y for two years or ever in the life of Child Z.

83    The applicant submitted that the Tribunal’s statement that it “must allocate less weight” (emphasis added) to the interests of the children when there has been long periods of absence or limited meaningful contact with the non-citizen parent, misstated the relevant paragraph of Ministerial Direction No 79 (Direction 79) which states that “(l)ess weight should generally be given” in such circumstances.

84    The applicant said that he submitted before the Tribunal that the best interests of his three young children was a “massive issue”, indeed the single most important factor in favour of revoking the visa cancellation. On the applicant’s argument, the Tribunal erred by giving the best interests of the children only “moderate weight”. He contended that - had the Tribunal not erroneously considered that the lost contact between the applicant and his children required that it give this factor less weight - there is a realistic possibility that the Tribunal might have given the best interests of the three children greater weight, which might have led to different outcome.

Consideration

85    It is uncontroversial that in deciding whether it was satisfied that there existed “another reason” to revoke the visa cancellation decision, the Tribunal was required to comply with Direction 79: see s 499(2A) of the Act. A failure to comply with a direction under s 499 is capable of being a jurisdictional error: PQSM v Minister for Home Affairs [2020] FCAFC 125; 279 FCR 175 at [90] (Bank-Smith and Jackson JJ).

86    Paragraph 13(2) in Part C of Direction 79 provides that in deciding whether to revoke the mandatory cancellation of a non-citizen’s visa, the best interests of minor children in Australia, is one of three primary considerations. Paragraph 13(1) provides that, where the discretion to consider revocation of a visa cancellation decision is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case. Paragraph 13.2(4) sets out a number of factors to be taken into account in considering the best interests of the child, where relevant, including 13.2(4)(a) which states:

The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);

87    I am not persuaded that on fair reading of the Tribunal’s reasons it fell into jurisdictional error as alleged.

88    First, the Tribunal correctly summarised paragraph 13.2(4)(a) of Direction 79 (at [158]), which points away from inferring that the Tribunal misunderstood those requirements.

89    Second, (at [159]-[178]) the Tribunal’s consideration in relation to the best interests of the children indicates that it weighed in the balance various competing considerations; rather than considering itself bound to give less weight to the nature and duration of the relationship between the applicant and the three children. The Tribunal considered the best interests of the three children at length (from [157]-[184]) including by considering the applicant’s and Ms A’s evidence in relation to the applicant’s loving relationship with the couple’s three children; his role in financially supporting them; the level of contact between the applicant and the children prior to his incarceration; Ms A’s difficulties in caring for the children alone, particularly when she is ill; and the financial difficulty for Ms A in supporting the children in the absence of the applicant.

90    The Tribunal then concluded (at [179]-[184]):

179.     While I am cautious about accepting Ms A’s evidence in general, and her evidence about the Applicant’s performance as a parent seems exaggerated, I am prepared to accept that the Applicant has generally played a positive role in the lives of all three children. Given their very young ages, they cannot express a view about the impact of non-revocation on their best interests but it is reasonable to conclude that they would prefer the Applicant to remain in Australia. I accept that the Applicant loves all three children and wishes to be a present, engaged, supportive parent to them. There is potential for the Applicant to play a positive parental role to each child for many years to come given their very young ages.

180.    However, this is tempered by the Applicant’s assaults on Ms A in December 2017 when she was pregnant with Child Y, and in November 2018 when Child Y was in the home (although it is most unlikely that Child Y knew what was happening) and Ms A was pregnant with Child Z. A man who wants to protect his child, protects the woman who is carrying his child. The Applicant’s behaviour on both of these occasions indicated that whatever concern he had for his children (born and unborn) was overborne by his anger towards Ms A. Accordingly, whether the Applicant is likely to play a positive parental role in the future partly depends on whether he continues to assault Ms A. Further assaults could result in him being removed from the family home and, any assaults that are witnessed by the children are likely to cause emotional and/or psychological harm as the children get older and are able to comprehend more.

181.    If the Applicant is removed to Lebanon, it seems unlikely that Ms A and the children will be able to visit regularly if at all given her financial situation. Non-revocation will likely result in the children not seeing the Applicant until they are adults, if that. The Applicant expressed worry that the children would think that he abandoned them. This is a matter that depends on what he and Ms A tell them.

182.    Lebanon is not a technologically backwards country: I am satisfied that the Applicant could maintain contact with the children by phone or other means of communication. This is obviously inferior to being physically present in their home.

183.    Ms A has always fulfilled the primary parental role in relation to the children and there is no suggestion that she will not continue to do so. Child X has a biological father who fulfils a parental role for her on weekends.

184.    Non-revocation will inevitably mean that the only relationship these children can have with their father/step-father is a long distance one. Balanced against that is his limited involvement in their lives so far and the fact that the likelihood that he will play a positive parental role is contingent on him abstaining from offending against Ms A. I allocate moderate weight to this Primary Consideration with respect to Child X, Child Y and Child Z.

91    Further, under another heading, being “Strength, nature and duration of ties”, the Tribunal said (at [201]):

The impact of non-revocation on the Applicant’s biological children who will grow up without their father, his step-daughter who will not have the Applicant has a father figure in her life, and Ms A who will be separated from a husband warrants significant weight according to this Other Consideration.

92    The Tribunal went on to find (at [206]-[207]):

Largely on the strength of the Applicants familial ties to Ms A, his two children and his step-daughter, I allocate significant weight under paragraph 14.2(1)(b) of the Direction.

Overall, I am satisfied that the strength, duration and nature of ties to the Australian community weighs heavily in favour of revocation.

93    Notwithstanding that the Tribunal gave significant weight to the nature and duration of the applicant’s ties to the three children it nevertheless decided, on balance, that the visa cancellation should not be revoked.

94    On a fair reading of the Tribunal’s reasons, not with an eye keenly attuned to the perception of error (Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at 271-272 (Brennan CJ, Toohey, McHugh and Gummow JJ)), I am not satisfied that the Tribunal proceeded on the basis that it must give less weight to the best interests of the children because of their limited contact with the applicant. In my view it concluded, in the particular circumstances of the case, that it was appropriate to give less weight to this consideration because of their limited contact. The Tribunal balanced the nature and the duration of the applicant’s ties to the three children, including that he loved all three children and he had a generally positive role in their lives, against its view that the applicant had had “limited involvement in their lives”. It considered this against the behaviour for which the applicant was convicted, the anger that such behaviour reflects, and the fact that the applicant’s ability to play a “positive parental role” was partly contingent upon him abstaining from similar offending conduct in the future. The Tribunal’s use of the word “must” at [165] is properly to be seen as loose language, and the Court is not concerned with that: Collector of Customs v Pozzolanic [1993] FCA 456; 43 FCR 280 at 287 (Neaves, French J (as his Honour then was) and Cooper J).

95    It is appropriate to dismiss this ground.

Ground 4

96    The applicant raised a proposed ground four in written submissions filed in advance of the hearing. The Minister met the proposed ground in its submissions in response. I granted leave to the applicant to file an amended originating application which included the new ground.

97    Ground four of the amended application alleges as follows:

The Tribunal failed to carry out the task of reviewing the primary decision by failing to consider or make findings on an issue raised by the evidence and submissions; namely, the impact of the applicant’s removal on his spouse and sister-in-law as victims of the applicant.

98    This ground is based in paragraph 14.4(1) in Part C of Direction 79 which provides:

Impact on victims

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

99    In relation to this consideration the Tribunal said (at [209]), under the heading “Impact on victims”:

This Other Consideration (d) requires a decision-maker to assess the impact of decision not to revoke on members of the Australian community, including victims of the non-citizens criminal behaviour, and the family members of the victim or victims where that information is available and is the non-citizen being considered for revocation has been afforded procedural fairness. Both of the Applicant’s victims have indicated that they will be adversely impacted by non-revocation of the cancellation of the Applicant’s visa. It was contended on behalf of the Applicant that this Other Consideration therefore favours him. This is one possible interpretation of the Direction. However, the fact that the Direction requires the non-citizen to be afforded procedural fairness indicates that this consideration contemplates the allocation of weight against the non-citizen. In any event, I have accounted for the impact of non-revocation on the victims of the Applicant’s offending (and on Ms A’s children) in Other Consideration (b). Accordingly, I do not allocate any weight under this Other Consideration.

100    As the applicant submitted, the Tribunal’s statement that this consideration “contemplates the allocation of weight against the non-citizen” is consistent with the decision in DKN20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 97 at [32]-[38] (Collier, Markovic and Anastassiou JJ) which held that paragraph 14.4 of Direction 79 could only be considered in circumstances where the visa cancellation might be revoked so the applicant remains in Australia. Their Honours approved the remarks of Colvin J in CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2020] FCA 1842 at [12] where his Honour found that there was an “obvious error in the formulation of [paragraph] 14.4” and that the impact on victims could only be considered in circumstances where the person concerned was allowed to remain in Australia. 

101    The applicant relied on the remarks of Perram J in Bale v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 646. In that case, Mr Bale sought judicial review of the Tribunal’s decision not to revoke the cancellation of his visa, and his wife gave evidence both as his wife and also as a victim of domestic violence at his hands. Mr Bale submitted that it was relevant for the Tribunal to know both that he had ties to the Australian community, as evidenced by his wife’s support for him, and also that when wearing her hat as one of his victims, she wanted him to remain in Australia. Perram J did not accept that argument, saying the following (at [26]):

I do not accept this argument because whichever way one looks at it, the fact that Mr Bale’s wife desired for him to remain in Australia was taken into account by the Tribunal. Where a matter is relevant to two or more mandatory relevant considerations, a decision-maker is not usually required to take the matter into account repetitiously… And, as [54] of the Tribunal’s reasons shows, the Tribunal was well-aware that she was one of his victims.

[Citations omitted.]

102    Then, in a passage upon which the applicant case relies, his Honour went on to say (at [27]):

The only way to outflank that problem would be to submit that there was some aspect of the wife’s evidence as a victim which was different from her evidence as a spouse. Such evidence might be readily enough imagined. For example, in her evidence Mr Bale’s wife could have addressed the fact Mr Bale had been convicted of common assault following an attempt to throttle her early on the morning of 17 December 2007. She could have said that despite that assault she forgave him and was not concerned that he might assault her again. It may well be that evidence of that kind would have engaged cl 14.4(1) independently of cl 14.2(1)b).

103    The applicant contended that this is precisely the situation in the present case; as both victims of the applicant’s assaults, Ms A and Ms B, provided evidence that they have forgiven the applicant for assaulting them and were not concerned that he might again assault them in the future. The applicant submitted that was different evidence from Ms A’s evidence as a spouse, and Ms B’s evidence as a loving sister-in-law, that they wanted the visa cancellation decision to be revoked so that applicant can remain in Australia.

104    The applicant submitted that the Tribunal failed to deal with the impact of the applicant’s removal on Ms A and Ms B, as victims of the applicant, who had wholeheartedly forgiven him and no longer held any fear of him.

Consideration

105    I accept that the evidence before the Tribunal shows that the applicant’s victims, Ms A and Ms B, have forgiven him for his assaults upon them and they no longer fear him. They expressed those views in various ways, as the Tribunal recognised.

106    I am not, however, persuaded that the Tribunal failed to consider and take that evidence into account, and therefore not persuaded that the Tribunal fell into error as alleged.

107    First, that the Tribunal recognised that Ms A and Ms B were victims of the applicant is plain at numerous points of its reasons. The applicant did not contend otherwise.

108    Second, that the Tribunal recognised that Ms A forgave the applicant for his assaults and wanted him to remain in Australia, is also apparent at various points of its reasons, including where the Tribunal noted:

(a)    at [106], that Ms A said she knew that the applicant regrets his mistakes and is very sorry, and he will never repeat them;

(b)    at [107], that Ms A had been speaking to the applicant by telephone daily while he was in prison;

(c)    at [108], that Ms A described the applicant in very positive terms including that he had a strong sense of duty, as a kind person and “a good man inside and out”; and

(d)    at [109], that Ms A had seen the applicant change as a person and could see how willing he was to become a better father and an even better husband.

109    Third, it is also clear that the Tribunal recognised that Ms B forgave the applicant for his assaults. At [111], it referred to the letter of support in which she said the applicant is like a role model to her. In that letter Ms B also said that she and the applicant are “like brother and sister”, that we all make mistakes, and that she had seen a “massive change” in the way the applicant acts and talks. The Tribunal noted (at [202]) the applicant’s evidence that he and Ms B had “sorted things out” and that Ms B looks up to him like a brother and he cares for her as if she is his little sister.

110    On a fair reading of the reasons I consider the Tribunal gave consideration to the evidence of Ms A and Ms B as victims of the applicant. At [209], the Tribunal said that “[b]oth of the Applicant’s victims have indicated they will be adversely impacted by the non-revocation of the cancellation of the Applicants visa”, thereby recognising their evidence as victims. The Tribunal then said that, in effect, there was no requirement to consider the impact on Ms A and Ms B as victims under “Other Consideration (d)” because it had already accounted for that evidence in its consideration of the applicant’s “strength, nature and duration of ties” in relation to “Other Consideration (b)”; which consideration it concluded “weighs heavily in favour of revocation”.

111    As Perram J noted in Bale at [26], the Tribunal did not need to consider the impact of non-revocation on Ms A and Ms B, as victims, repetitiously: see also Hodgson v Minister for Immigration and Border Protection [2017] FCA 1141 at [40] (Tracey J); RZSN v Minister for Home Affairs [2019] FCA 1731 at [67] (Anderson J); WQRJ the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 736 at [78] (Derrington J). On a fair reading of the Tribunal’s decision, I do not accept that the Tribunal only considered and dealt with Ms A’s claims as a wife, and Ms B’s claim as a sister in law, rather than also considering their claims as victims. That is a strained reading of the decision in which the Tribunal made it abundantly clear that it understood that Ms A and Ms B had reconciled with the applicant since his assaults upon them.

112    It is appropriate to dismiss this ground.

CONCLUSION

113    I have made orders to dismiss the application and to order the applicant to pay the First Respondent’s costs in an amount to be agreed between the parties, and if not agreed to be the subject of a lump-sum determination by a Registrar.

Associate:

Dated:    1 September 2021