Federal Court of Australia

DTCB v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1098

ORDERS

THE COURT ORDERS THAT:

1.    The amended originating application dated 9 August 2021 be dismissed.

2.    The Applicant pay the costs of the First Respondent, such costs to be taxed if not 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 12 April 2021, the Administrative Appeals Tribunal affirmed a decision of a delegate of the first respondent (Minister), made under s 501CA(4) of the Migration Act 1958 (Cth), not to revoke the mandatory cancellation of the Applicant’s Class TY subclass 444 Special Category (Temporary) visa.

2    By Reasons for decision dated 12 April 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 non-revocation of the cancellation of the Applicant’s visa.

3    By an amended originating application filed pursuant to s 476A of the Migration Act, for which leave was granted unopposed at the hearing, the Applicant sought an order in the nature of certiorari quashing the Tribunal’s decision and an order remitting the matter to the Tribunal to determine his application for review according to law. The basis for the application is that the Tribunal’s decision was affected by jurisdictional error by reason of the following grounds:

(1)    The Tribunal failed to consider the impact of its decision on the Applicant and his stepfather;

(2)    The Tribunal constructively failed to consider the effect of a non-revocation decision on the Applicant and his mother and his sister, which involved that they would never see each other in person again;

(3)    The Tribunal failed to consider the best interests of two minor children, being the Applicant’s nephew and niece;

(4)    It was illogical for the Tribunal to approach its acceptance of the danger that the Applicant’s father posed to the Applicant as a factor that could be balanced against the Applicant’s ‘poor choice of associates [which] contributed to his past wrongdoings’ and that ‘New Zealand is a developed country which has very good health and social welfare systems’, alternatively, the Tribunal misconstrued cl 14.5 of Direction 79.

4    For the reasons that follow, the application must be dismissed.

Background

5    The Applicant is a citizen of New Zealand. He first arrived in Australia with his mother and two older siblings on 1 June 2000 aged nine years. His mother separated from his biological father when the Applicant was a baby and he has had little contact with his biological father since moving to Australia. The Applicant considers his stepfather, who was aged 73 at 27 October 2020, to be ‘more of a father’ to him.

6    On 19 December 2017, the Applicant was convicted in the Supreme Court of Queensland of the offence of Possess Illicit Drug and was sentenced to three years’ imprisonment. While the Applicant was in custody for that offence, the Minister mandatorily cancelled the Applicant’s visa pursuant to s 501(3A) of the Migration Act. Notice of that decision was given to the Applicant and, in accordance with reg 2.52(2)(b) of the Migration Regulations 1994 (Cth), the Applicant was invited to make representations to the Minister about why the cancellation of his visa should be revoked.

7    The Applicant made representations to the Minister on 31 August 2018 and, on 18 January 2021, the Minister decided not to revoke the visa cancellation decision made under s 501(3A).

Legislative provisions

8    Section 501(3A) of the Migration Act provides that the Minister must cancel a visa that has been granted to a person if:

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

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

. . .; and

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

9    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).

10    Section 501CA of the Migration Act relevantly provides that:

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

…

 (3)    As soon as practicable after making the original decision, the Minister must:

(a)    give the person, in the way that the Minister considers appropriate in the circumstances:

(i)    a written notice that sets out the original decision; and

(ii)    particulars of the relevant information; and

(b)    invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.

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

(a)    the person makes representations in accordance with the invitation; and

(b)    the Minister is satisfied:

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

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

11    In reviewing the Minister’s decision on its merits, the Tribunal stands in the shoes of the Minister. In carrying out its statutory task, the Tribunal is required to give ‘meaningful consideration’ (by engaging in an ‘active intellectual process’) to any significant and clearly expressed relevant representations made by the Applicant: Minister for Home Affairs v Omar [2019] FCAFC 188; (2019) 272 FCR 589 at [34], [36]-[37]; Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352 at [46].

12    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 performance of those functions or 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.

13    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.

14    Paragraph 7(1)(b) 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 C of the Direction, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.

15    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 revoke the mandatory cancellation of a visa, are in Part C). 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.

16    Part C of Direction 79 sets out those considerations which a decision-maker must take into account in deciding whether to revoke the mandatory cancellation of a non-citizen’s visa. These considerations are divided into “primary considerations” and “other considerations”.

17    Paragraph 13(2) 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.

18    Paragraph 13.2 of Direction 79, which corresponds to the primary consideration in paragraph 13(2)(b), provides as follows:

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

…

(3)    If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.

…

19    Paragraph 14 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; strength, nature and duration of ties; impact on Australian business interests; impact on victims; and extent of impediments if removed. Only the second consideration, that of the strength, nature and duration of ties, and the fifth consideration, that of the extent of impediments if removed, is presently relevant.

20    Paragraph 14.2(1)(b) of Direction 79 provides:

14.2    Strength, nature and duration of ties

…

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

21    Paragraph 14.5 of Direction 79 provides:

14.5    Extent of impediments if removed

(1)    The extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standard (in the context of what is generally available to other citizens of that country), taking into account:

(a)    The non-citizen’s age and health;

(b)    Whether there are substantial language or cultural barriers; and

(c)    Any social, medical and/or economic support available to them in that country.

22    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.

Did the Tribunal fail to consider the impact on the Applicant and his stepfather?

23    The Applicant has particularised this ground of review in the following manner:

(a)    The impact of a non-revocation decision on the Applicant and his stepfather was a mandatory consideration for the Tribunal because of cl 14.2(1)(b) of Direction 79.

(b)    The Applicant put as part of his case that non-revocation would have an adverse impact on him and his stepfather, the stepfather’s evidence included that the Applicant was ‘the boy I bought [sic] up as my son and will continue to be my son’.

(c)    At [303]-[307] where the Tribunal purports to consider the matters in cl 14.2 of Direction 79, the Tribunal did not consider, did not engage in any process of reasoning that involved active intellectual consideration of, nor ‘confront the reality’ of the impact of its decision on the Applicant and his stepfather.

24    The Applicant contends that the Tribunal’s reasons fell short of the ‘obligation of real consideration of the circumstances of the people’ and were not an ‘honest confrontation of what is being done to people’: Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; (2018) 267 FCR 628 at [3]. The Applicant says that, having regard to the Chief Justice’s observations in Hands, the Tribunal’s reasons at [303] and [307] should be considered the reasoning – not the earlier passages that set out the evidence. In particular, the Applicant contends that those paragraphs do not amount to an honest confrontation of the devastating consequences for the Applicant and his stepfather, particularly in light of: the extensive evidence (both viva voce and in writing) of those consequences; that the consequences for the stepfather were put plainly as a central representation; and the mandatory requirements of Direction 79.

25    The Chief Justice’s comments in [3] of Hands have come to be cited regularly to criticise decision-makers who are said to have exceeded the limitations imposed upon them by the statutory source of their executive power. That is entirely appropriate when a fair reading of the whole of the reasons of a decision-maker discloses a ‘lack of the necessary reflection upon the whole consideration of the human consequences involved’. Care must, however, be taken when invoking adjectives such as ‘devastating’ so that the true meaning of ‘devastation’ is not diminished, and so that the Court’s supervision of the lawful decision-making responsibility entrusted to decision-makers by Parliament is not led into impermissible merits review.

26    The decision of Hands was concerned, primarily, with a finding that ‘whilst Mr Hands may experience short term hardship, over time, he would be capable of settling in New Zealand without undue difficulty’, in circumstances where there was no rational or probative evidence to support a conclusion that the emotional and psychological harm would be ‘short term’. As the Chief Justice said, at [44], ‘All the material, if considered, would lead any reasonable person to a conclusion that this decision, unrevoked, will cause lifelong grief and psychological hardship to a number of people, including Mr Hands’.

27    The evidence relating to the impact on the Applicant vis à vis his stepfather was both written and oral. The Tribunal set out at length (Tribunal’s reasons at [65]-[68]) paragraphs of his Statutory Declaration of 17 June 2020, in which the Applicant’s stepfather said, relevantly to this issue:

I am a citizen of Australia. I spent 40 years in New Zealand and moved our family back to my home of Australia in the year 2000.

[The Applicant] has been my stepson since he was 8 years old.

…

The times [the Applicant] was released from incarceration he made efforts to stay off the drugs for long periods of time and despite the challenges of finding employment difficult he made himself useful helping us with repairs and renovations around our home. I can honestly say he was a god send to me on many occasions doing jobs that I was incapable of doing without having to hire someone.

…

I know that [the Applicant’s] disgraceful criminal record sits in front of you and to any person who reads it will come to the conclusion that this person in front of you is deemed not worthy of consideration to stay in Australia (sic). I am writing this declaration to tell you the other side of [the Applicant].

The boy I bought up as my son and will continue to be my son, the goodness in [the Applicant] and the type of qualities he has as a human being is worthy to fight for.

…

I am in my seventies and his mother is 60 battling emphysema our family is important to us. The past 2 years with [the Applicant] being incarcerated has made a deep impact on our family as it has to [the Applicant] as well, but to have him deported to another country is devastating.

28    The Applicant’s stepfather’s oral evidence, relevant to this issue, is recorded in the Tribunal’s reasons at [184]-[185]:

184. …He said that if the Applicant gets his visa back they will do everything possible to ensure he does not relapse. If it happened they will address it. He is close to retirement age and needs the support of the Applicant in the home.

185. Under cross-examination, [the stepfather] told Mr Duldig that he hires people to do jobs that the Applicant would do if he was with them. If his son is deported he will do everything possible to get over there and be with him.

29    The impugned paragraphs of the Tribunal’s reasons are contained within the section of those Reasons where the Tribunal indicates that ‘it now turns to addressing considerations relevant under Direction No. 79’, at [208]. The Tribunal set out in some detail the written and oral evidence before it in the previous 207 paragraphs. When addressing the strength, nature and duration of ties as required by para 14.2(1)(b) of Direction No. 79, the Tribunal found:

303.    The Tribunal accepts that this Applicant has lived here for all but approximately nine years of his life. The Tribunal accepts that all of the Applicant’s friends and close family reside in Australia, and have an indefinite right to remain in Australia. He is not close to anyone in New Zealand, and is in fear of his father who lives there. His mother and sister are both prevented by illness from travel to New Zealand by plane. His mother also has bad memories of her treatment in New Zealand at the hands of the Applicant’s father. The Tribunal accepts that if the Applicant is to be deported there will be significant emotional hardship for both himself, and his entirely undeserving mother, and sister, both of whom have enough to cope with. There will be hardship for others also, and the Applicant will be deprived of what is for him, an unprecedented and generous employment opportunity afforded by his brother and his brother’s business partner.

...

307.    The Tribunal gives this consideration slight weight in favour of revocation of the decision to cancel his visa.

30    A conclusion that a decision-maker has not engaged in an active intellectual process is not one to be made lightly and must be supported by clear evidence, bearing in mind that the judicial review applicant carries the onus of proof: Carrascalao at [48]. As a matter of impression, the Tribunal’s reasons were careful and considered. It is artificial to suppose that a decision-maker who has carefully set out the detail of the representations put to that decision-maker has not engaged in an active intellectual consideration of those matters before arriving at a conclusory summary in relation to the relevant issue. It is a methodology adopted routinely by decision-makers to enable them to undertake the evaluative task with which they have been charged.

31    There is no reason to construe the Tribunal’s conclusion that ‘There will be hardship for others also’ as not including his stepfather. To do so is to scrutinise the Tribunal’s reasons minutely and finely 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]-[31].

32    Contrary to the Applicant’s submission, the Tribunal’s specific mention of the ‘significant emotional hardship for both himself, and his entirely undeserving mother, and sister…’ is not confirmatory of the Tribunal’s having failed to meaningfully consider the reality for the Applicant’s stepfather. Rather, it must be read in light of the previous finding where the Tribunal accepts that neither the Applicant’s mother nor sister will be able to travel to New Zealand because of their poor health with the consequence that mother and son, and sister and brother, will never again see one another.

33    The position of the Applicant’s stepfather, whilst still involving hardship, was different. His evidence was that his health would not prevent him from travelling and that he would do everything possible to be with the Applicant in New Zealand. The Tribunal’s reasons cannot be construed as lacking ‘the necessary reflection upon the whole consideration of the human consequences involved’: Hands at [3].

34    I am not persuaded that the Tribunal’s approach to its consideration of the strength, nature and duration of ties reveals that it did not engage in any process of reasoning that involved active intellectual consideration of, or did not confront the reality of, the impact of its decision on the Applicant and his stepfather.

35    Ground one cannot succeed.

Did the Tribunal constructively fail to consider the impact of non-revocation on the Applicant, his mother and his sister?

36    The Applicant’s second ground of review is particularised as follows:

(a)    At [303] of its reasons, the Tribunal referred to and accepted the evidence that the Applicant’s mother and sister are prevented by illness from travelling to New Zealand by plane.

(b)    The Tribunal described this as ‘significant emotional hardship’ for the three.

(c)    Reasoning that a mother or sister will never be able to see her son or brother again as mere ‘significant emotional hardship’ is insufficient to amount to a consideration, a process of reasoning that involved active intellectual consideration, or a ‘confrontation of the reality’ of the Tribunal’s decision.

37    For the same reasons as relate to Ground one, I am not persuaded that the Tribunal’s approach to its consideration of the strength, nature and duration of ties reveals that it did not engage in any process of reasoning that meant it constructively failed to consider the effect of a non-revocation decision on the Applicant and his mother and his sister, which involved that they would never see each other in person again.

38    The Tribunal referred to the Applicant’s mother’s evidence (Tribunal’s reasons at [172]):

172.    If the Applicant is deported, [the Applicant’s mother] will not be able to visit him, because of financial and health issues. She also has Menieres disease and altitude affects her. She has had an operation to take her balance nerve away and stop vertigo. Her doctor has told her that overseas travel is not an option as she is prone to pneumonia because of her emphysema. She last travelled a couple of years ago when her godmother died. She has a panic attack just getting on a plane. She does not have fond memories of New Zealand. She got the medical advice about travel more recently since she had the stroke. To not see her son again is more than devastating. She does not want to die without having her son around. She has been told that she could have a small or a big stroke at any time. She cannot look to the future without her son being in Australia.

(Emphasis added)

39    In relation to the sister’s evidence, the Tribunal said (Tribunal’s Reasons at [163]):

163.    …She was told that she may not live past 2017. Her health is much better now. She is able to drive, but is not able to be a perfect mum. She was hospitalised in 2015 and only came right in 2019. She has two auto-immune diseases. Rheumatoid arthritis, and Rheumatoid Meningitis in the brain. She is currently in remission for a condition called IIH which pertains to hypertension in the brain. Her doctor has told her not to undertake overseas travel.

40    In addition to its evaluation of the ‘significant emotional hardship for both himself, and his entirely undeserving mother, and sister’, the Tribunal accepted (Tribunal’s reasons at [311]):

311.    The Tribunal accepts that all of the Applicant’s friends and close relatives live reside in Australia, and that if returned to New Zealand, he will for practical purposes, be on his own, and this will provide him with some challenges. Not least among these is that he will be permanently isolated from his mother and sister, both of whom suffer ailments which would prevent them from travelling by air to New Zealand to visit him.

    (Emphasis added)

41    The Tribunal’s reasons at [311] demonstrate that the Tribunal considered the effect of the non-revocation decision on the Applicant and his mother and his sister. Ground two cannot succeed.

Did the Tribunal fail to consider the best interests of the Applicant’s niece and nephew?

42    The Applicant’s third ground of review is particularised as follows:

(a)    In cases where there are two or more relevant children, the Tribunal was required by cl 13.2(3) of Direction 79 to give the best interests of each child individual consideration to the extent that their interests may differ.

(b)    The Applicant gave evidence (as recorded at [34]-[35] of the reasons) that he had a nephew who had ADHD and dyslexia. The Applicant also gave evidence that he had a particularly close relationship to his nephew and a niece, both the children of the Applicant’s sister, because the sister was unwell and has meningitis of the brain, and because the sister’s husband worked night shifts.

(c)    The Tribunal purported to address the best interests of the minor children at [282]-[286] of its reasons, but did not give separate consideration to the interests of the nephew and niece, did not engage in any process of reasoning that involved active intellectual consideration of their interests at all, and did not ‘confront the reality’ of its decision.

43    The Tribunal concluded, at [286], that Primary Consideration B weighs in favour of revocation. The Tribunal set out the requirement to give the best interests of each child individual consideration and found:

284.    The Applicant is not the father to any children. However, he has a strong bond with his sister’s children, particularly the son [the subject of this ground of review], developed over a period when he was very much a primary care giver, and the Tribunal gives weight to this.

285.    To a lesser extent the Applicant also has a bond with his brother’s children.

44    It is plain that the Tribunal gave individual consideration to the best interests of the minor children, distinguishing between the children of the Applicant’s brother, with whom he had a lesser bond, and the children of the Applicant’s sister, with whom he had a greater bond, particularly with his nephew (nephew 2).

45    The Tribunal referred to the Applicant’s description of his relationship with the children in its reasons at [34]-[35]:

34.    Describing his relationship with these children, the Applicant said:

I’m very close with my nieces and nephews, in particular [nephew 2] and [niece 2]. My family are really close and we see each other every fortnight. I spend a lot of time with them, including taking them to the park, games etc. I’m particularly close with [nephew 2] and [niece 2] because their mother, my sister, [redacted] is unwell and has meningitis of the brain. Her husband [redacted] usually works nights, so I do a lot of babysitting for [nephew 2] and [niece 2]. I also watch [nephew 2’s] rugby games and take him out as much as I can.

35.    Describing the impact the cancellation of his visa would have on these children, the Applicant said:

    My nieces and nephews don’t know I’m in prison as we think it will upset them too much. I speak to them on the phone regularly, they think I’m away for work. They’re looking after my dog, Roscoe. It would be really hard on them if I was deported to the UK [sic]. They rely on me a lot particularly [nephew 2] who has ADHD and dyslexia. He’s been really down when spoken to him recently and keeps asking me where I am. Its distressing that I’m upsetting him by being away in prison.

46    The Tribunal also set out, at [49], three paragraphs of the Applicant’s statement which provided similar information about the children.

47    The Tribunal also referred to the evidence of the Applicant’s sister, the mother of nephew 2 and niece 2 (Tribunal’s reasons at [78]):

78.    [The sister] said that her son Nephew 2 has been especially affected by the Applicant’s absence, and has missed his attendance at football games, watching movies together, and playing cricket. She said that Nephew 2 is waiting for the day that the Applicant returns home, and is caring for the Applicant’s dog while he’s in prison. [The sister] stated that the Applicant’s deportation would not only affect him, but all members of their family.

48    The Tribunal also referred to the evidence of the Applicant’s sister-in-law which was that ‘Two of her children remember him and draw pictures of him. The youngest is yet to meet him’ (Tribunal’s reasons at [82]). The Applicant’s brother’s evidence was that he looks forward to ‘the kids meeting up and getting to know [the Applicant]. I have seen [the Applicant] with [the Applicant’s sister’s] kids and the bond he has with them’ (Tribunal’s reasons at [87]).

49    The Tribunal also summarised the oral evidence given by the Applicant’s sister at the hearing:

162.    Her brother and her children are very close, especially the son. She said that in 2013 she was diagnosed with Rheumatoid Arthritis and was bedridden for six months, and there were days when she could not care for her children. During this time, the Applicant was a good support to her and to the children. The last few years have been quite hard on her son [Nephew 2], as the Applicant and her son are similar, and find it hard to speak to people, and really relate to each other. The son does not know where the Applicant is at the moment. They have not spoken since his imprisonment in 2018. The son asks about the whereabouts of his uncle.

    …

167.    She said that her son has a lot of issues and she needs help from the Applicant. The son misses his uncle, and has been a bit angry the last two years. It will be hard for the son not to see his uncle.

50    The Tribunal referred to the closing submissions made on behalf of the Applicant in which his lawyer emphasised the Applicant’s relationship with nephew 2 who, it was submitted, would be most affected by a non-revocation. It was submitted that ‘They had a close bond formed in a unique circumstance, and this should be given a moderate degree of weight’ (Tribunal’s reasons at [199]).

51    Again, for the same reasons as relate to Ground one, and based on the reasons referred to above, I am not persuaded that the Tribunal’s approach to its consideration of the best interests of the minor children reveals that it did not properly distinguish between the individual interests of those minor children, nor that it failed to engage in any process of reasoning that meant it constructively failed to consider the effect of a non-revocation on those children.

52    Ground three cannot succeed.

Was the Tribunal’s approach to balancing its acceptance of the danger posed by the Applicant’s father against the Applicant’s poor choices and the fact that New Zealand is a developed country illogical; or did it misconstrue cl 14.6 of Direction 79?

53    The Applicant has particularised the fourth ground of review as follows:

(a)    The Applicant refers to the findings and reasoning at [312]-[315] of the Tribunal’s reasons.

(b)    The matters at [312] were logically distinct from those at [313]-[314], and so needed to be considered independently, and could not logically be balanced against each other as the Tribunal did at [315].

(c)    Alternatively, the matters at [312]-[314] could not be netted off against each other, on the proper construction of cl 14.6 of the Direction.

54    The gravamen of this complaint is that the Tribunal is said to have committed an error in logic by ‘netting off’ against one another the various factors that it took into account when considering the extent of impediments that the Applicant may face if removed from Australia. Alternatively, it is contended that the Tribunal misconstrued cl 14.5 of Direction No. 79 because that clause calls on the decision-maker to consider the extent of ‘any’ impediments, not the extent of ‘the’ impediments netted off against each other. It is contended that the Tribunal engaged in an arithmetical exercise rather than an evaluative one.

55    The Tribunal’s conclusion in this regard should be set out in full.

(e)    Extent of impediments if removed

310.    In considering the extent of impediments the Applicant may face in New Zealand in establishing himself and maintaining basic living standards (in the context of what is generally available to other citizens of New Zealand), the Tribunal has taken into account that the Applicant is presently 29 years of age, and there is no evidence before the Tribunal that he suffers any health condition that would place any undue burden upon him or otherwise impede his re-establishment in New Zealand. It has not been contended that he will face any substantial language or cultural barriers.

311.    The Tribunal accepts that all of the Applicant’s friends and close relatives reside in Australia, and that if returned to New Zealand, he will for practical purposes, be on his own, and this will provide him with some challenges. Not least among these is that he will be permanently isolated from his mother and sister, both of whom suffer ailments which would prevent them from travelling by air to New Zealand to visit him. For a range of reasons there would also be difficulties in his other loved ones visiting him.

312.    The Tribunal notes with concern the Applicant’s troubled history with his biological father, who has a strong history of violence – including against the Applicant – and breach of domestic violence orders. He is a member of notorious gangs, and is no stranger to prison life. The Tribunal accepts that if the Applicant’s father becomes aware of his whereabouts, this may place the Applicant in some physical danger. A previous attempt by the Applicant to re-establish himself in New Zealand failed as a consequence of violence from his father.

313.     On the other hand, the Tribunal notes that the Applicant has stated that his poor choice of associates has contributed to his past wrongdoings. In this regards, it may well be doing him a favour to remove him from the sphere of influence of those people, and give him an enhanced opportunity to turn his life around unimpeded by bad influences.

314.    The Tribunal also notes that New Zealand is a developed country which has very good health and social welfare systems, and the Applicant would be able to receive any counselling or other treatment which he might have recommended, as well as medication there which would be comparable to what he might expect to receive in Australia.

315.    Overall the Tribunal views this consideration as being of slight weight in favour of revocation.

56    The Applicant contends that the Tribunal has illogically, and impermissibly, invoked the matters it refers to at [313] and [314] in a process of explaining why less weight should be given to the matters it accepted at [312].

57    There is no merit to this contention. Clause 14(1) of Direction No. 79 is a direction to the Tribunal to consider a range of factors where relevant including, but not limited thereto, the extent of impediments if removed. The evaluative task dictated by cl 14.5 is to consider the extent of any identified impediments. The Tribunal has, at [310], taken into account the factors mentioned in cl 14.5(1)(a) and (b). At [311]-[312], the Tribunal has detailed its findings as to what impediments the Applicant may face. In evaluating the extent of those impediments, the Tribunal then identifies at [313]-[314] the matters it considers might be ameliorating factors to those impediments, being a fresh start away from bad influences and the social and medical support that is likely to be available to him in New Zealand

58    No error is shown in the Tribunal’s approach.

Materiality

59    The Minister submits that, even if there were an error, it was not material in the sense that, had the Tribunal considered the matters alleged by the Applicant to have been overlooked, or engaged in illogical reasoning with respect to cl 14.5 of Direction No.  79, the Applicant has not discharged the onus that consideration of those matters could realistically have resulted in a different decision by the Tribunal: MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 390 ALR 590 at [60] per Kiefel CJ, Gageler, Keane and Gleeson JJ.

60    In view of the conclusions I have reached in relation to the grounds of review, it is strictly unnecessary to determine the issue of materiality. Nevertheless, were the issue live, the Applicant would face an almost insurmountable hurdle in discharging the onus. The Tribunal found that Primary Consideration A [protection of the Australian community] ‘weighs extremely heavily in favour of non-revocation’ (Tribunal’s reasons at [281]) and that, ‘To the extent that Other Considerations weigh in favour of revoking the mandatory cancellation decision, they cannot, even when combined with Primary Consideration B [best interests of minor children], outweigh Primary Considerations A and C [expectations of the Australian community] (Tribunal’s reasons at [318]).

61    In considering the seriousness of the Applicant’s offending and its frequency and trend, the Tribunal stated:

233.     The Tribunal notes with great concern that the Applicant has received custodial sentences on numerous occasions, including sentences in 2010, 2017, and 2020 which on each separate occasion were sufficient to enliven the mandatory cancellation of the Applicant’s visa.

    …

236.    On 23 November 2010, His Honour Dearden DCJ sentenced the Applicant to imprisonment for an ‘extremely disturbing’ armed robbery, which was ‘an utterly terrifying experience’ for the victim, committed five months after the Applicant was placed on three years probation.

237.    On 19 December 2017, Atkinson J in the course of her sentencing of the Applicant to imprisonment for drug and driving offences said:

This is shocking, persisting offending, showing not only your own abuse of methylamphetamine but also your possession of it for commercial purpose, even whilst on bail, and terrible dangerous driving, putting police and members of the public at risk…You have a bad criminal history.

        …

    There is a court report about your behaviour while subject to probation and several periods of parole. It appears to be very negative about your behaviour. In summary, it says that supervision and incarceration appear to have little effect on your willingness to address your offending behaviour and engagement in compliance with supervision was poor.

    You have a shocking traffic history, including whilst disqualified, committed as recently as March 2015…

    This is [Applicant], shocking offending: methylamphetamine possession in large amounts on two occasions, once on bail, and very dangerous driving given that you put at risk members of the public, but also the police, who are just doing their job, and damaged the police vehicle. It is aggravated by the fact that you were subject to a suspended sentence and a probation order…

238.    Most recently, on 2 April 2020, His Honour Byrne QC sentenced the Applicant to imprisonment on a total of 14 offences, two of which were on indictment. The offences included possession of in excess of 500 grams of cannabis, and a loaded revolver hand gun. In the course of his remarks, His Honour said ‘You have a terrible criminal history [Applicant]’. After referring to the outcome of the sentencing by Atkinson J, His Honour continued:

You were granted immediate paroled. …You were on parole when your current offending occurred as a result of the order of Justice Atkinson. Unsurprisingly, the parole authorities have reported that you are not suitable for any further supervision for further community based orders, and it is not only on the basis of offending, but because of the far less than optimal approach you took to engage with the opportunity by the parole authorities could give you to help with your drug issues.

Very serious offending has been undertaken by you. It is accepted by you via your barrister the possession of the drugs was for a commercial purpose. That is a very relevant feature. As I have made clear, also relevant is the fact that you committed the offending whilst you were on parole, and I think it is pertinent to observe that the commercial aspect involved the possession of a loaded firearm. That is a matter which must attract significant amounts of deterrence, both personal and general. That is sending a message to the community – to other offenders that it will not be accepted and that the community denounces that sort of conduct.

[Tribunal’s emphasis in bold]

239.    Before the Tribunal, it was conceded that the Applicant has offended in the order of 60 times since he received his Notice of Intention to Consider Cancelation (‘NOICC’) in 2011. His offending has graduated from wielding a knife during an armed robber committed whilst on marihuana, to carrying a loaded gun whilst possessing a large quantity of marihuana for commercial purposes. The Tribunal considers the Applicant’s excuse for possession of the firearm to be at best, not credible.

(Emphasis added)

62    It is difficult to see that there could realistically have been a different decision by the Tribunal as to the overwhelming weight given to Primary Considerations A and C. The required threshold for materiality has not been met: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 at [45] and [46] per Bell, Gaegler and Keane JJ; MZAPC at [2]-[4] per Kiefel CJ, Gageler, Keane and Gleeson JJ.

Disposition

63    The application should be dismissed with costs.

Associate:

Dated:    10 September 2021