Federal Court of Australia

Nahi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1169

ORDERS

THE COURT ORDERS THAT:

1.    The originating application be dismissed.

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

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

REASONS FOR JUDGMENT

HALLEY J:

1    This is an application made under s 476A(1)(b) of the Migration Act 1958 (Cth) (Act). By an originating application filed on 17 March 2021, the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 10 February 2021, affirming a decision of a delegate of the first respondent (Minister) not to revoke the mandatory cancellation of the applicant’s visa pursuant to s 501CA(4) of the Act.

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

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

Background

4    The applicant was born on 29 July 1996 and is a citizen of New Zealand.

5    In 2010, the applicant began living in Australia, aged 14.

6    On 1 January 2015 being the applicant’s most recent arrival in Australia, he was granted a Class TY (Subclass 444) Special Category (Temporary) Visa (visa).

7    On 30 October 2019, the visa was mandatorily cancelled pursuant to s 501(3A) of the Act.

8    Section 501(3A) provides:

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

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

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

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

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

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

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

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

…

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

…

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

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

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

…

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

…

(b) the Minister is satisfied:

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

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

11    The conditions leading to the mandatory cancellation pursuant to s 501(3A) were satisfied in the present case. On 29 August 2019, the applicant was convicted in the District Court of Western Australia in Perth of “Possession of stolen or unlawfully obtained property” and was sentenced to 14 months’ imprisonment. The applicant thus has a substantial criminal record pursuant to s 501(7)(c) for the purposes of the character test referred to in s 501(3A)(a).

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

13    In the originating application in this proceeding, the applicant advanced three grounds of review:

(1)    the Tribunal made a jurisdictional error by failing to complete its statutory task, in that it constructively failed to consider the best interests of children affected by its decision due to its failure to inquire into the best interests of the five children identified by the applicant as being affected by the decision;

(2)    further or in the alternative, the Tribunal made a jurisdictional error in that it misunderstood or misconstrued s 500(6H) of the Act, resulting in it constructively failing to consider the best interests of the children affected by its decision; and

(3)    further or in the alternative, the Tribunal made a jurisdictional error by reaching a state of satisfaction about whether there was another reason to revoke the cancellation of the applicant’s visa on the basis of illogical or irrational reasoning.

14    In written submissions filed prior to the hearing, the applicant abandoned Ground 2. During the hearing, the applicant confirmed orally that Ground 3 was not pressed. Therefore, the only ground remaining for consideration is Ground 1 (failure to complete statutory task).

Tribunal decision

15    The Tribunal noted that it had to consider Direction no. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (Direction 79), a direction given by the Minister for Immigration, Citizenship and Multicultural Affairs under s 499 of the Act.

16    Relevantly, paragraph 13(2)(b) of Direction 79 provides:

(2) In deciding whether to revoke the mandatory cancellation of a non-citizen’s visa, the following are primary considerations:

…

b) The best interests of minor children in Australia; …

17    Further, paragraph 13.2(4) of Direction 79 provides:

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

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

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

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

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

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

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

g)     Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and

h)     Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizens conduct.

18    The Tribunal noted that the applicant has no children of his own but that his statement of facts, issues and contentions identified the following children as being relevant to the second primary consideration in Direction 79, being the best interests of minor children in Australia:

(a)    one niece and one nephew, being the children of his brother Samuel Nahi;

(b)    two children to whom the applicant is named as their godfather; and

(c)    the younger brother of his partner, Ms Tran.

19    The Tribunal found that there was a lack of any meaningful evidence going to any of the considerations identified in paragraph 13.2 of Direction 79.

20    The Tribunal found that none of the statements provided by the applicant, the applicant’s parents, the applicant’s brother, the father of the applicant’s godchildren and the applicant’s partner addressed any of the factors identified in paragraph 13.2.

21    The Tribunal raised its concern about the lack of evidence addressing the considerations of paragraph 13.2(4) of Direction 79 with counsel for the applicant in the course of the hearing before it, stating that it could not “see where there’s any evidence which would assist the tribunal in considering any of those factors”. At the conclusion of the exchange with counsel on this issue, the presiding Tribunal member stated:

No, okay. So, I just didn’t want to overlook anything that I am required to take into account.

22    The Tribunal concluded its analysis of the second primary consideration at [84] is of its decision in these terms:

In the Tribunal’s view there is insufficient evidence for the Tribunal to make any informed assessment of the matters identified in paragraph 13.2(4) of Direction 79 or to make a finding that it would be in the best interests of any minor children in Australia to revoke the cancellation of the applicant’s visa. Insofar as there was oblique reference in Ms Tran’s oral evidence to her mother and younger brother living with the Applicant, that information was not set out in a written statement given to the Respondent at least two business days before the hearing so, even if it were of some probative value, and the Tribunal considers it not to be, the Tribunal cannot have regard to that information in any event by reason of s 500(6H) of the Act.

23    In the circumstances, the Tribunal found that the second primary consideration did not weigh in favour of the revocation of the cancellation of the applicant’s visa.

Applicant’s submissions

24    The applicant contends in Ground 1 of the originating application that the Tribunal made a jurisdictional error by failing to complete its statutory task, in that it constructively failed to consider the best interests of children affected by its decision as required by paragraph 13.2 of Direction 79. This was a failure to inquire into the best interests of the five children identified by the applicant as being affected by the Tribunal’s decision.

25    The applicant accepts that there was almost no oral evidence given about the best interests of any of the five children in the course of the hearing before the Tribunal and stated that the Tribunal did not ask a single question on that topic of any of the witnesses relied upon by the applicant.

26    The applicant submits, however, that whether or not the applicant sought to make the best interests of the five children part of his case, the Tribunal was obliged by s 499 of the Act and paragraph 13.2 of Direction 79 to take into account the interests of any minor children of which it was aware in determining the application for review.

27    The applicant contends that, in any event, he did seek to make the interests of the minor children part of his case, he just did not do so effectively. The applicant implied this was what led to the Tribunal’s finding about the insufficiency of the evidence on that matter.

28    The applicant contends that in circumstances where the children were not represented and could not safeguard their own interests and where all of the witnesses who gave oral evidence at the hearing could have given evidence about the interests of some or all of the children, the Tribunal was obliged to make inquiries of the available witnesses about the best interests of the minor children.

29    The applicant characterises those inquiries as obvious inquiries about critical facts which could be easily ascertained: Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429; [2009] HCA 39 (SZIAI) at [25] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ):

It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction.

30    The applicant submits that the error by the Tribunal was material. He contends that had the Tribunal been in a position to make findings about the best interests of the five children, “it could have accorded significant weight to that consideration which could have fundamentally shifted the balancing of the considerations”.

31    The applicant sought leave to rely at the hearing on affidavits of his partner, Ms Tran, his parents Mr Eugene Nahi and Mrs Fleur Nahi, all affirmed on 23 August 2021, and an affidavit of himself, affirmed 25 August 2021, for the purpose of demonstrating what evidence could have been obtained by the Tribunal with respect to the best interests of the five children (Further Affidavit Evidence). The application was not opposed by the Minister and I granted leave to the applicant to rely on the Further Affidavit Evidence. I address the significance of the Further Affidavit Evidence below in the context of materiality.

Minister’s submissions

32    The Minister submits that although the best interests of the minor children is a mandatory consideration, this did not mean that the Tribunal was required to make a finding that revocation of the cancellation decision would be, or would not be, in the best interests of those children. It submits that the Tribunal was entitled to conclude that the evidence was insufficient to allow it to reach a conclusion one way or the other, citing inter alia: Uelese v Minister for Immigration and Border Protection (2015) 256 CLR 203; [2015] HCA 15 (Uelese) at [67] (French CJ, Kiefel, Bell and Keane JJ); Paerau v Minister for Immigration and Border Protection (2014) 219 FCR; [2014] FCAFC 28 (Paerau) at [27] (Buchanan J), [69] (Barker J) and [119] (Perry J); Nweke v Minister for Immigration and Citizenship [2012] FCA 266 at [21] (Jagot J); CVN17 v Minister for Immigration and Border Protection [2019] FCA 13 at [57] (Kenny J).

33    The Minister submits that, even assuming the heavily qualified principle at [25] in SZIAI applied in the current context, it would be necessary to have regard to the statutory context of the decision in question. It submits that the statutory context provides that the former visa holder “must put forward the evidence the applicant wishes the Tribunal to consider”: Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594; [2011] HCA 1 at [84] (Gummow J). It submits that the occasion for exercising power under s 501CA(4) of the Act only arises after an automatic cancellation of the visa and following that cancellation the former visa holder is able to make representations under that section seeking to have the visa cancellation decision revoked. It submits the role of the Minister (and the Tribunal upon review) is to consider the representations made to determine whether the criteria in s 501CA(4) are met, not to independently investigate the factual circumstances raised by an applicant: Taualii v Minister for Home Affairs [2019] FCA 2013 (Taualii) at [96] (Anderson J).

34    The Minister places particular reliance on the following statement of the Full Court of the Federal Court of Australia in Pennie v Minister for Home Affairs [2019] FCAFC 129 (Pennie) at [14] (Davies, Derrington and Colvin JJ) that it reproduced in its submissions in these terms:

The primary judge correctly stated that it was for Mr Pennie to put before the Minister what he wanted the Minister to take into account and it was not for the Minister to undertake his own research or investigate for himself the likelihood or otherwise of Mr Pennie finding housing in Ireland, or obtaining social with fair or adequate healthcare. The Minister had no legal duty to make such inquiries for himself or to make findings of fact as to whether Mr Pennie would be entitled to social and housing welfare if removed to Ireland. His legal duty was to address the representations made and to take them into account in considering whether to revoke the cancellation decision. A fair reading of the Minister’s reasons discloses that he both considered and weighed up the matters put to him by Mr Pennie (emphasis added; citations omitted).

35    The Minister made four further submissions.

36    First, the applicant was represented before the Tribunal, did not adduce evidence regarding his relationship with the minor children from all of the witnesses and did not seek an adjournment to adduce further evidence in response to the observations made by the Tribunal as to the state of the material before it relevant to the best interests of minor children consideration. Procedural fairness only requires the Tribunal to give the applicant a reasonable opportunity to adduce evidence and make submissions, not to ensure the applicant took advantage of that opportunity: Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40 at [38] (Kirby J); Przybylowski v Australian Human Rights Commission [2018] FCA 25 at [9] (Perry J).

37    Second, in determining whether further inquiries had to be made in relation to the minor children, the Tribunal considered the information that was available. In particular, it had regard to the fact that the applicant was neither the parent nor the primary caregiver of any of the five minor children in issue. In the absence of anything more, there could be no obligation on the Tribunal to make further inquiries: Downes v Minister for Home Affairs [2020] FCA 54 at [54] (Charlesworth J).

38    Third, the question of whether the minor children were represented and were able to look after their own interests before the Tribunal conflates the interests of the minor children as a mandatory relevant consideration with the children being afforded procedural fairness in their own right: see Degning v Minister for Home Affairs [2018] FCA 1152 at [93]-[94] (Robertson J), which was overturned on other grounds in Degning v Minister for Home Affairs (2019) 270 FCR 451; [2019] FCAFC 67.

39    Fourth, even if there had been an obligation on the Tribunal to make inquiries, the applicant had not demonstrated that the failure to make such inquiries had any material bearing upon the Tribunal’s ultimate conclusion: Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3 (SZMTA) at [45]-[46] (Bell, Gageler and Keane JJ).

Consideration

40    The issue for determination in this matter is of a relatively narrow compass. As framed, the applicant’s case turns on whether the Tribunal was under an obligation to make further inquiries with respect to the best interests of the minor children for the purposes of the second primary consideration in Direction 79 and, if so, whether that error was material in that there was a realistic possibility that the evidence that might have been elicited could have led to a different outcome.

Duty to inquire

41    The existence and content of any “duty to inquire” that might be imposed on decision-makers was considered at some length by the High Court of Australia in SZIAI. The majority (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) concluded at [25]:

Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a “duty to inquire”, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error …

42    It was ultimately not necessary for the High Court in SZIAI to determine the precise nature and extent of the “duty to inquire”, given that first, there was nothing before the Court that indicated that further inquiries could have yielded a useful result and second, the response made by SZIAI’s solicitors (which did not rise above a bare denial) demonstrated the futility of further inquiry: SZIAI at [26].

43    The applicant placed considerable reliance on the reasoning of the High Court in Uelese in support of his contention that the Tribunal in this case relevantly had a duty to inquire with respect to the best interests of the five minor children.

44    For present purposes, the critical reasoning of French CJ, Kiefel, Bell and Keane JJ in Uelese is as follows:

66     It is apparent that the paucity of evidence referred to in the last sentence of the passage from the reasons of the Tribunal cited above was not due to the unavailability of material evidence. The Tribunal not only declined to act upon the information which was put before it by Ms Fatai, but it also failed to make even the most cursory inquiry to follow up on this information. This is not a case like Paerau v Minister for Immigration and Border Protection, on which the Minister sought to rely; here, the paucity of evidence was a consequence of the view taken by the Tribunal of the preclusory effect of s 500(6H).

67     It is not necessary here to seek to chart the boundaries of the Tribunal’s obligation to inquire after the best interests of the children of an applicant for review. There may be cases, hopefully rare, where the evidence presented by the parties does not alert the Tribunal that minor children in Australia may be affected by the decision. There may also be cases where the evidence is such that the only determination which can be made in obedience to cl 9.3(1) of Direction 55 [as Direction 79 then was] is that cancellation is neutral so far as the best interests of any minor child are concerned. In this regard, it is to be noted that cl 9.3(1) requires a “determination about whether cancellation is, or is not, in the best interests of the child” (emphasis added). Sometimes the best decision “about” whether cancellation is, or is not, in the best interests of the child may be that it is neither.

45    On balance, I do not consider that the reasoning in Uelese provides any material support for the applicant’s contention that the Tribunal had a positive duty to inquire as to the best interests of the minor children.

46    First, the Tribunal in Uelese had incorrectly proceeded on the basis that it was precluded by reason of s 500(6H) of the Act from making any further inquiry as to the interests of the minor children in Australia. The paucity of the evidence was expressly attributed to the erroneous views that the Tribunal had taken of the preclusory effect of s 500(6H). That was not a misapprehension on the part of the Tribunal in this case.

47    Second, a consequence of the error by the Tribunal in Uelese was that it failed to act upon the information before it of the interests of the minor children. There was no such error by the Tribunal in this case. The Tribunal here expressly referred to the limited evidence before it relevant to the interests of the minor children.

48    Third, a further consequence of the error made by the Tribunal in Uelese was that it had also failed to follow up on information before it by making even the “most cursory inquiry”: Uelese at [66]. This error was attributed to the misconception concerning the preclusory nature of s 500(6H), not a freestanding failure to pursue a specific duty to inquire as to the best interests of the minor children.

49    Fourth, the majority in Uelese observed that there may well be cases where the only determination that could be made for the purposes of paragraph 9.3(1) of Direction 55 (the predecessor to Direction 79) was that cancellation was “neutral so far as the best interests of any minor child are concerned”. The majority explained that the paragraph required a “determination about whether cancellation is, or is not, in the best interests of the child” (original emphasis) and that sometimes the best decision about “whether cancellation is, or is not, in the best interests of the child may be that it is neither”: Uelese at [67].

50    Fifth, the relevant issue in Uelese was not a question of whether the Tribunal went “far enough” but rather a “failure to address a primary consideration”, as explained by the majority at [68]:

It is not necessary to canvass these possibilities further because the issue in this case is not whether the Tribunal failed to go far enough to discharge its obligation to conduct its review having regard to the interests of all the appellant’s children; rather, the point is that the Tribunal, by reason of its misunderstanding of the effect of s 500(6H), failed to address one of the primary considerations affecting the decision required of it. It failed to conduct the review required by the Act, and thereby fell into jurisdictional error.

(Footnotes omitted.)

51    In my opinion, more relevant for present purposes is the reasoning of the majority in Paerau (Buchanan and Perry JJ in separate judgments). The Tribunal in Pareau had relevantly concluded, given the paucity of evidence before it, that it could not be satisfied as to whether it would be in the best interests of Mr Paerau’s minor children for him to remain in Australia or for him to be removed to New Zealand. The Tribunal concluded that in those circumstances, the best interests of minor children consideration did “not weigh against cancellation and, at best, is neutral”.

52    Buchanan J focused on the Tribunal’s obligation to assess the available material conscientiously, but in circumstances where this material did not permit a “proper conclusion” (original emphasis). His Honour considered that there could be no objection to the Tribunal saying that it was unable to reach a conclusion on the best interests of a child either for or against the cancellation of a visa: Paerau at [27].

53    Perry J considered that the Tribunal’s finding on the best interests of minor children consideration equates in the language of the Ministerial direction to a finding that the consideration was not “relevant”. Her Honour stated that, in effect, the Tribunal had decided that it had insufficient probative material available to it to be able to embark upon the requisite determination. So read, her Honour reasoned, this was “not a case where the Tribunal made findings on the evidence before it on matters relevant to determining where the best interests of children lie, but failed to complete that process by determining what was in their best interests and taking that into account in balancing that primary consideration against the other considerations”: Pareau at [117]-[118], cf Spruill v Minister for Immigration and Citizenship [2012] FCA 1401 (Robertson J).

54    Equally relevant for present purposes, Perry J concluded at [119] of Paerau:

Finally, even if I am wrong in my reading of the Tribunal’s reasons and the Tribunal did have regard to the consideration of where the best interests of the children lay — a construction which I accept is available — I do not consider that the error is one which would warrant remitting the matter back to the Tribunal in the exercise of the Court’s discretion to grant relief. Once the Tribunal found that, by reason of the paucity of evidence, it could not be satisfied about where the best interests of Mr Paerau’s minor children lay, and that was a finding lawfully open to it, there was nothing further for the Tribunal to do with respect to that consideration. The fact that the Tribunal then found that “[a]s such, this consideration does not weigh against cancellation and, at best, is neutral” had in its terms no impact on the result of the balancing exercise which the Tribunal then undertook in accordance with cl 7(1) of the Direction, and therefore had no impact upon its final decision. The further finding was simply superfluous to the Tribunal’s decision.

(Emphasis added.)

55    Neither Buchanan nor Perry JJ sought to impose any “duty to inquire” obligation on the Tribunal in circumstances where the evidence before it was insufficient to enable it to form a conclusion as to whether it was in the best interests of minor children for an applicant to remain in Australia or be removed to another country.

56    In my view the position in the present case is largely analogous to the position considered by the Full Court in Paerau.

57    As submitted by counsel for the Minister, the Tribunal here properly recognised that the best interests of the minor children was a mandatory consideration that it had to take into account. The Tribunal considered the evidence before it relevant to that consideration and then concluded that the evidence before it was insufficient to enable it to determine whether or not the consideration weighed favourably or unfavourably to the revocation decision. It was in those circumstances that the Tribunal concluded that the second primary consideration did not weigh in favour of the revocation of the cancellation of the applicant’s visa.

58    It might well be accepted that there was an obligation on the Tribunal to make an “obvious inquiry” such as “what was the relationship of the minor children to the applicant?” and “what is the evidence that the applicant relies upon with respect to the best interests of minor children?” I do not accept, however, that there was any obligation on the Tribunal to seek to supplement or independently investigate the evidence relied upon by the applicant for the best interests of the minor children consideration, particularly in circumstances where the Tribunal had expressly raised its concerns as to the scope of the material advanced by the applicant to his representative in the course of the hearing before it. The role of the Tribunal was to consider the representations made to it to determine whether the criteria in s 501CA(4) had been met: Taualii at [96] (Anderson J); Pennie at [14] (Davies, Derrington and Colvin JJ).

59    For these reasons, I do not consider that jurisdictional error has been established by the applicant in relation to this ground.

Materiality

60    If, contrary to my reasoning above, jurisdictional error was established in relation to the Tribunal’s duty to inquire, I do not consider that this error was material.

61    A breach by a decision-maker is only material if there is a realistic possibility that compliance could realistically have resulted in a different decision. It is a question of fact, for which the applicant bears the onus of proof, and is to be determined by inferences drawn from evidence adduced on the application: SZMTA at [45]-[46] (Bell, Gageler and Keane JJ).

62    As the majority explained in MZAPC v Minister for Immigration and Border Protection [2021] HCA 17 at [38] (Kiefel CJ, Gageler, Keane and Gleeson JJ), the approach to be taken to determine the materiality of a breach of a statutory condition is as follows:

The counterfactual question of whether the decision that was in fact made could have been different had there been compliance with the condition that was in fact breached cannot be answered without determining the basal factual question of how the decision that was in fact made was in fact made. Like other historical facts to be determined in other civil proceedings, the facts as to what occurred in the making of the decision must be determined in an application for judicial review on the balance of probabilities by inferences drawn from the totality of the evidence. And like other counterfactual questions in civil proceedings as to what could have occurred – as distinct from what would have occurred – had there been compliance with a legal obligation that was in fact breached, whether the decision that was in fact made could have been different had the condition been complied with falls to be determined as a matter of reasonable conjecture within the parameters set by the historical facts that have been determined on the balance of probabilities.

(Footnotes omitted.)

63    Necessarily in this case the relevant evidence from which those inferences can be drawn is the nature of the specific relationships that the applicant has with each of the five minor children, the best interests of whom the Tribunal was asked to consider.

64    The Minister accepts that if the Tribunal had asked each of the deponents the questions that they address in the Further Affidavit Evidence, they would have given the evidence that they now say they would have given.

65    The applicant submits that the Further Affidavit Evidence, had it been elicited by the Tribunal, would have been persuasive evidence and would have had a material bearing on the Tribunal’s ultimate conclusion.

66    Mr Nahi, the applicant’s father, spoke of the “significant role” that the applicant had as an uncle, child carer and godparent. The applicant’s father stated that his son often takes his godson and Ms Tran’s younger brother to the park for the day, has them over for sleepovers and they, and his niece, are always happy when the applicant is around.

67    Mrs Nahi gave evidence that the applicant “has played an important role in the lives of the children”, the applicant spent a lot of time with his godson and Ms Tran’s younger brother by “taking them to the parks and shops, and playing games” and the applicant “would often take the pressure off the parents with baby sitting and taking them out for the day”.

68    Ms Tran stated that: the applicant had “a special bond” with each of the five children; the applicant has “put so much time and effort in to building such a strong relationship with them”; the applicant “is more than likely to play a positive role in these kids lives in the future despite being incarcerated due to unfortunate mistakes he has made”; and “[t]eaching and guiding them through every milestone, teaching them respect and manners was always a part of [the applicant’s] nature and caring character”. Ms Tran’s evidence included recounting the impact of a visit by the applicant to see her younger brother in hospital when he was recovering from bronchiolitis. She explained that her brother had not been cheerful and was not talking to anyone but when the applicant arrived, her brother “instantly had a smile on his face, arms up, waiting for a cuddle” with the applicant.

69    In his affidavit the applicant spoke of the extent of his love for the five children, the strong relationship that he considers that he has with each of them and his concern that if he was separated from them “it would effect them a huge amount because an uncle/godfather/brother needs to be in their lives especially at a young age” and “[t]hey would never be able to turn to me if they are in trouble, if they need a car ride, help with their homework or something as little as just talking to me to get something off their chest”.

70    The Further Affidavit Evidence establishes that the applicant is an important and valuable role model for each of the five minor children. Nevertheless, other than the evidence with respect to the hospital visit, the Further Affidavit Evidence was largely of a qualitative character and expressed in general terms. It revealed the extent of the emotional attachments that the applicant had established with the five children and the importance of their relationships with him, rather than the extent to which any of them depended on the applicant for their living expenses, accommodation, clothing, transport and day to day care. Trips to the park, sleepovers, babysitting and playing games are important aspects of the relationship between an uncle and his nephews and nieces, a godfather and his godchildren and between de facto brothers, but do not rise to the level of responsibility, commitment and dependence that are the hallmarks of the relationship that a primary caregiver, parent or otherwise, might have with minor children.

71    The applicant is not a parent or primary caregiver to any of the five children. This is particularly significant given the extent of the focus in paragraph 9.2(4) of Direction 79 on parental relationships in assessing the best interests of minor children in Australia primary consideration. Paragraph 9.2(4)(a) provides that less weight should generally be given to the best interests of minor children when the relationship is non-parental. Paragraph 9.2(4)(b) is directed at the extent to which the non-citizen is “likely to play a positive parental role in the future”. Paragraph 9.2(4)(e) is concerned with whether other persons “already fulfil a parental role in relation to the child”.

72    Given the nature of the applicant’s offending the Tribunal determined that both the first primary consideration, the protection of the Australian community from criminal or other serious conduct, and the third primary consideration, the expectations of the Australian community, weighed against revocation of the decision to cancel the applicant’s visa. The Tribunal allocated moderate weight to the first primary consideration and minor weight to the third primary consideration.

73    The Tribunal found that the “strength, nature and duration of the ties” to Australia consideration weighed in favour of revocation and gave it moderate weight. The Tribunal noted, however, that considerations of the “impact on Australian business” and the “extent of any impediments that the non-citizen might face” were he returned to New Zealand did not weigh in favour of revocation.

74    In all the circumstances, including the emphasis the Tribunal placed on the first primary consideration in its reasoning in the light of its assessment of the nature and seriousness of the applicant’s criminal offending, I do not accept that the Further Affidavit Evidence, had it been elicited by the Tribunal, was material in the sense that it could have realistically resulted in a different decision by the Tribunal.

Disposition

75    For the reasons outlined above, I reject the ground of review advanced by the applicant. It follows that the application should be dismissed with costs.

Associate:    

Dated:    29 September 2021