Federal Court of Australia

Kura v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1343

ORDERS

THE COURT ORDERS THAT:

1.    The Applicant’s Application for review filed 23 June 2021 be dismissed.

2.    The Applicant pay the costs of the First Respondent in the sum of $6,500.

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

REASONS FOR JUDGMENT

KERR J:

1    The Applicant, Mr Poona Sheldon Jordan Kura (the Applicant) challenges the decision of the Administrative Appeals Tribunal (the Tribunal) dated 18 May 2021 to affirm the mandatory cancellation of his Class TY Special Category (Subclass 444) (temporary) visa: Kura and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 1365. He challenges the decision on the grounds that the decision involved a serious error of law because the Tribunal did not apply the principles from the recent High Court decision in Minister for Immigration and Border Protection v Makasa [2021] HCA 1 (Makasa); and the Tribunal failed to take relevant considerations into account including the Applicant’s efforts to abstain from drug use and the evidence of his partner, and displayed bias and prejudice.

2    The First Respondent (the Minister) submits that the grounds sought by the Applicant are not made out and the application should be dismissed with costs.

Background

3    The Applicant was born in New Zealand in October 1990. He moved to Australia with his parents in August 2000. He has remained in Australia since that time aside from a few brief periods of travel.

4    The Applicant has a criminal history. The first offences recorded on his National Police Certificate (CB25-CB28) were in 2011 and 2012 for assault of police drunk in a public place, unlicensed driving, and refusal to accompany to station for a b. test. There followed a period where no offences were recorded. In July 2016, the Applicant was convicted of drug possession and theft offences. On 5 April 2017, he was convicted of a series of offences including for drug possession, dishonesty, carjacking and assault. He was sentenced to an aggregate term of imprisonment of more than 12 months.

5    On 21 December 2017, the Applicant’s visa was cancelled under s 501(3A) of the Migration Act 1958 (Cth) (Migration Act) by a delegate of the Minister (the cancellation decision). The delegate was satisfied that the Applicant had a substantial criminal record within the meaning of s 501(6)(a) of the Migration Act on the basis of s 501(7)(c) of the Migration Act because he had been sentenced to a term of imprisonment of 12 months or more.

6    The Applicant made representations seeking revocation of that decision. On 24 September 2019, the Applicant was notified that a delegate of the Minister had decided that they were not satisfied that he passed the character test as defined in s 501 of the Migration Act and were also not satisfied that there was another reason why the cancellation decision should be revoked.

7    On 2 October 2019, the Applicant applied to the Tribunal for a review of that decision. On 17 December 2019, the Tribunal affirmed the delegate’s decision to not revoke the cancellation decision.

8    The Applicant sought judicial review of the Tribunal’s decision in this Court. On 12 October 2020, the Court delivered reasons ordering that the Tribunal’s decision be set aside, and remitting the matter to the Tribunal: Kura v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1478.

9    On 18 May 2021, the Tribunal, differently constituted, affirmed the delegate’s decision not to revoke the cancellation of the Applicant’s visa.

10    On 23 June 2021, the Applicant filed an application for review of the Tribunal’s decision in respect of his application as had been remitted. His application, based on grounds set out later below was heard on 25 October 2021. However, before turning to those grounds, it is appropriate to set out the material aspects of the decision made subject to review.

The Tribunal’s decision

11    The hearing before the Tribunal on remittal was conducted on 3 and 4 May 2021. The Applicant was represented at that hearing.

12    The reasons for decision of the Tribunal dated 18 May 2021 are lengthy. The Tribunal concluded that the Applicant did not pass the character test because of his April 2017 convictions and consequent imposition of a sentence “exceeding the threshold statutory period” of 12 months. It observed, however that it remained to be determined under s 501CA(4)(b)(ii) of the Migration Act whether there was “another reason” why the cancellation decision should be revoked. The Tribunal cited the following passage from Viane v Minister for Immigration and Border Protection [2018] FCAFC 116 at [64]:

There is no statutory power to revoke under s 501CA(4)(b)(ii) unless the Minister is satisfied that there is a reason, other than a conclusion that the person concerned passes the character test, which means that the original decision ‘should be’ revoked. It is not enough that there is a matter that might be considered or may be said to be objectively relevant. It must be a reason that carries sufficient weight or significance to satisfy the Minister entrusted with the responsibility to consider whether to revoke the visa cancellation that the decision should be revoked. Only a reason of that character enlivens the statutory power to revoke. It is the absence of such a reason that will result in a decision not to revoke a visa cancellation.

13    The Tribunal then set out the evidence tendered at the hearing and considered the oral evidence given by the Applicant and his witnesses including his brother, parents, and his partner of over 11 years. The Applicant’s psychologist also gave oral evidence, which was considered later in the Tribunal’s reasons.

14    The Tribunal then turned to consider the relevant matters under Ministerial Direction no. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction No 90) which the Tribunal explained provided a “framework within which decision-makers should approach their task, including whether to revoke a mandatory cancellation”. It set out at [24] and [25] of its reasons the following primary and other considerations in clauses 8 and 9 of the direction and then considered the evidence relevant to them as related to the Applicant in turn:

24. Clause 8 of the Direction identifies the following as primary considerations:

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

(b) Whether the conduct engaged in constituted family violence;

(c) The best interests of minor children in Australia;

(d) Expectations of the Australian community.

25. Clause 9 of the Direction identifies a non-exhaustive list of other considerations:

(a) International non-refoulement obligations;

(b) Extent of impediments if removed;

(c) Impact on victims;

(d) Links to the Australian community, including:

(i) Strength, nature and duration of ties to Australia;

(ii) Impact on Australian business interests.

15    In so far as any issue arises in respect of the Tribunal’s analysis of matters relevant to those factors I am satisfied that the material circumstances are sufficiently revealed in the grounds of appeal and the Court’s consideration of the criticisms made of it below. The Tribunal concluded as follows:

CONCLUSION

181.    Because of the combined effects of ss 501(6)(a) and 501(7)(c) of the Act, the Applicant does not pass the character test. In determining if there is ‘another reason’ why the mandatory cancellation of his visa should be revoked, the Tribunal has applied the Direction to the specific circumstances of his case. The Tribunal does not consider it necessary to depart from the guidance that greater weight ‘should generally be given’ to the primary considerations than other considerations.

182.    The Applicant’s repeat offending and other serious conduct across several categories, is very serious. Set against the decade-long origins of his drug use and offending, the Tribunal is unpersuaded that his abstinence and law-abiding conduct in custody, has mitigated his recidivism risk to an acceptable level. The Applicant’s longest period of abstinence from drug use is since being imprisoned. His aspiration to avoid a relapse and remain law-abiding is untested in the community, where his past motivation has been insufficient. The protective factors he invokes are comparable to those existing in the past, which were similarly insufficient. Any repeat of his offences could result in further significant harm to the community. Notwithstanding his lengthy residence in Australia and the other positive features of his case, the community would expect he should not hold a visa.

183.    The Tribunal has no doubt the Applicant loves his children and aspires to resume a more prominent role in their lives. The circumstances of this case, however, disclose he has not always put their interests first. He disregarded an ultimatum from his partner to cease drug use in 2015 or she would leave him and take their children. His drug use and crimes only escalated. On balance, however, revocation is in the best interests of the Applicant’s children and, to a lesser extent, his nieces and nephews.

184.    Given the Applicant’s age, health, history of work in Australia, and familiarity with New Zealand culture, the extent of impediments to his repatriation are not substantial. There is also no evidence he would be treated differently to other citizens of New Zealand if he needed assistance. That said, what ties the Applicant has are overwhelmingly in Australia, which weighs most significantly in favour of revocation.

185.    Having weighed all relevant considerations individually and cumulatively, the Tribunal finds there is not another reason why the decision to cancel the Applicant’s visa should be revoked. That is because two primary considerations ‘Protection of the Australian community’ and ‘Expectations of the Australian community’ outweigh the combined weight to be given to the primary consideration ‘Best interests of minor children in Australia,’ and the relevant other considerations in this matter.

DECISION

186.    It follows that the Tribunal affirms the decision under review.

grounds of appeal

16    The Applicant’s grounds of appeal including particulars are as follows:

Grounds of application

The respondent's decision was unreasonable and erroneous:

1.     The respondent's decision involved a serious error of law.

Particulars

(1)     With reference to the High Court case, Minister for Immigration and Border Protection v Makasa, [2021] HCA 1, 12 November 2020, confirmation was made that previous offending that has been assessed and resulted in the applicant passing the character test and having his visa reinstated is not be to considered in any subsequent Section 501 character review.

This is confirmation of the limitations that the Minister of Home Affairs must accept on his powers.

The applicant has several convictions over many years - from 2006 through to 2014. However, on each occasions his visa has been reinstated with the Department of Home Affairs full knowledge of the convictions.

As the applicant's visa was reinstated these convictions are no longer to be taken into account under a new 'Bad Character1 assessment. To do so is a legal error and thus a jurisdictional error.

Consequently it becomes a breach of the applicant's right to natural justice and procedural fairness.

(i)     The Senior Member has made this serious error in ignoring this accepted principle as confirmed in the Makasa case,

Under Sentencing Remarks, under 89,

The Applicant has either been found guilty without conviction or convicted of approximately 50 charges since 2011. A trend of increasing seriousness is apparent. His initial offending in 2011-12 was dealt with by way of fines and a Community Service Order, which he breached. He received a 12-month CCO for his 2016 convictions, which he also contravened. In 2017 he was awarded sentences of imprisonment of up to 18 months.

and 90,

The cumulative effect of the Applicant’s offending during the last decade has caused harm to the Australian community. This includes to the victims of his crimes and the costs borne by the community through law enforcement efforts

The Senior member should not be considering this matter as it has been assessed by the Department of Home Affairs and the applicant's visa reaffirmed. The Senior Member has clearly taken material into account that that must be ignored. This mistake has prejudiced and biased his thinking and caused the applicant to be denied natural justice and procedural fairness.

(2)     Section 501 of the Migration Act is being misinterpreted and applied in ways that are not consistent with its intent.

Section 501 of the Migration Act is for people who are coming into the country and not for people who are ready living in the country.

501(6) is applicable to a person who has come to Australia from the point of entry; port or airport and was taken to immigration detention centre to be processed.

501(6)(a) the person have has a substantial criminal record has defined by subsection (7).

Subsection (7) is within section (6). They are to be read together. Section (6) defines the offences and section (7) defines the sentences.

A person does not pass the Character test only if they fail on offence and sentence. Section (6) and (7) are interconnected.

The applicant has not committed a crime as mentioned under sub-section 501(6) character test. These are crimes of high profile status and are crimes against the Federal government of Australia. The types of crimes are treason, crimes against humanity, crimes of war, crimes of torture, crimes of slavery, people smuggling, genocide, crimes of a serious international concern and escape from a detention centre.

Further, the applicant has never been associated with a group or organisation involved in criminal conduct as so defined when resident in Australia.

The crimes in 501 are crimes against the Federal government. As is known the Federal government is put in place to run the country on behalf of the United Kingdom parliament. It is the interest of the United Kingdom, through their proxy the Federal parliament, that anyone hostile to this institution be deported from the country.

This is the purpose of Section 501 - not its bastardised deliberate misinterpretation of today.

Further, 501 is about cancelling a visa, not about deportation.

MIGRATION ACT 1958, Section 501, Refusal or cancellation of visa on character grounds

The visa should only be cancelled after an appearance before a court not at the whim of the delegate or Minister. The individual must be examined under 501 first - before any visa can be cancelled. At present individuals are detained for years before any examination is made.

As above, only the high profile crimes against the Federal government are deportable. This is confirmed by reviewing Section 4 of the ASIO Act 1979 and its meaning of security of Australia.

As I did not commit any of the security offences against the Federal government, such as espionage, sabotage, politically motivated violence etc and, as such, I do not fall under 501.

2.     The respondent failed to make relevant considerations into account and displayed bias and prejudice.

Particulars

The Minister’s Submissions

17    The Minister filed written submissions on 11 October 2021. The submissions are divided under headings for each ground advanced. The Minister submits that each of grounds 1 and 2 have no merit and the application should be dismissed with costs.

Ground 1

18    The Minister starts with Ground 1.1. The submissions note that this ground alleges that the Tribunal failed to correctly apply the principle in Makasa:

14.    …which the Applicant says prohibits the Tribunal taking into account “previous offending that has been assessed and resulted in the applicant passing the character test and having his visa reinstated” and as such, is not to be considered in respect of the present cancellation decision.

19    The Minister refers to the principle in Makasa as follows:

16.     The question for the High Court’s consideration in Makasa was whether the Minister can re-exercise the power conferred under s 501(2) of the Act to cancel a visa after the Tribunal has made a decision under s 43(1)(b)(i) of the Administrative Appeals Tribunal Act 1975 (Cth) setting aside a prior decision of a delegate of the Minister to cancel the visa and substituting a decision that the visa should not be cancelled (at [1]). The High Court (Kiefel CJ, Gaegler, Keane, Gordon and Edelman JJ) concluded that it could not (at [3]).

17.     The Court concluded that a decision of a delegate or the Tribunal not to cancel a visa made in the exercise of power conferred by s 501(2) of the Act on the basis of facts giving rise to a reasonable suspicion that a visa holder does not pass the character test is final, subject only to ministerial override in the exercise of the specific power conferred by s 501A. The Minister or a delegate can re-exercise the power conferred by s 501(2) to cancel the visa if subsequent events or further information provide a different factual basis for the Minister or a delegate to form a reasonable suspicion that a visa holder does not pass the character test at the first stage of the requisite two-stage decision-making process. But neither the Minister not the delegate can rely on subsequent events or further information simply to re-exercise the discretion to cancel the visa at the second stage of the decision-making process (at [56]-[57]).

18.     Given that there has been no previous exercise of power under either s 501(2) of the Act, the principle in Makasa has no application to the present matter. The question of the application of Makasa to s 501(3A) to which Zyambo v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 545 and XJLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 619 are relevant, does not arise here either in circumstances where there has been no re-exercise of power.

20    The Minister contends that the principle set out in that case has no application to the circumstances of the Applicant in this matter and that this ground misrepresents the Applicant’s visa history in circumstances where the Applicant has only ever held one visa and at no other time has his visa been cancelled and then reinstated.

21    In relation to Ground 1.2, the Minister characterises that proposition as broadly alleging that the Tribunal misapplied s 501 of the Migration Act. The Minister submits that there was no error demonstrated in the application of this section by either the delegate or the Tribunal. The Applicant had a substantial criminal record within the meaning of ss 501(6)(a) and 501(7)(c) of the Migration Act as a result of his being sentenced on 5 April 2017 to 18 months’ imprisonment on each of the charges of Carjacking (Use force to steal vehicle) and Robbery.

Ground 2

22    The Minister’s submissions characterise this ground as containing 4 particulars, “each of which allege that the Tribunal acted in a way which exhibits ‘bias and prejudice’ in its decision making”. The Minister continues, explaining: “The thrust of the Applicant’s submission is that he disagrees with the findings made by the Tribunal at paragraphs 44, 46, 130 and 139 of its decision.”

23    The Minister submits that:

26.     Where a denial of procedural fairness relied upon is an alleged reasonable apprehension of bias on the part of the decision-maker, such apprehension must be ‘firmly established’: Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352 per Mason J. Further, such an allegation must be “distinctly made and clearly proved”: Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 531 per Gleeson CJ and Gummow J. It is not sufficient if a reasonable bystander “has a vague sense of unease or disquiet.”: Jones v Australian Competition and Consumer Commission (2002) 76 ALR 424 at 441 per Weinberg J.

27.     The Applicant’s complaints with respect to ground 2 amount to no more than disagreement with the findings of the Tribunal and as such, the Applicant is attempting to engage in impermissible merits review. He has not established any apprehended bias in respect of the Tribunal's decision-making.

24    In its oral submissions the Minister emphasised that the Tribunal had taken into account all of the Applicants evidence and that the conclusions it reached were open to it.

25    Turning to what is particularised as Ground 2.1, the Minister submits that this relates to the contention of the Applicant that the Tribunal “did not give due weight to the Applicant’s insight, relief and appreciation that prison had given him the opportunity and direction he needed to turn his life around”. The Minister submits to the contrary that the Tribunal “gave appropriate consideration to the Applicant’s representations and the Tribunal’s findings were open to it on the evidence.”

26    The Minister drew attention to the Tribunal’s acknowledgment of the Applicant’s evidence that he felt remorse, that his perspectives had changed, and that he had remained drug free and incident free in custodial environments “for the last four years despite the ready availability of drugs”. The Minister submits, however, that the Tribunal had been entitled to also take into account the Minister’s submissions before the Tribunal that the Applicant had “previously failed to comply with conditional liberty arrangements and did not take advantage of rehabilitative opportunities. Moreover, any progress he had made in custody was untested in the community”. The Tribunal had further been entitled to take into account the Minister’s submission that the applicant showed a lack of remorse having regard to his “continuing denial of some offending, despite pleading and being found guilty”.

27    Ground 2.2, the Minister submits, is premised on a contention by the Applicant that the Tribunal did not give appropriate weight to his “efforts and period of absenteeism from drug abuse during his period of imprisonment and that this constitutes a denial of natural justice”. The Minister submits that ground is wholly unsound and that it is evident the Tribunal gave proper consideration to the Applicant’s representations. The Minister submits that the Tribunal acknowledged the Applicant’s rehabilitation but had to been entitled to weigh that evidence “against the decade-long origins of his drug problem” and its finding that “the repeat nature of the Applicant’s offending elicited concerns about whether he can remain drug free and law-abiding”. The Tribunal had not erred in observing that the Applicant’s abstinence from drug use is untested in the community, “where his past motivation has been insufficient”.

28    Ground 2.3, the Minister submits, seeks to challenge on the merits the Tribunal’s reasons for it being unpersuaded that programs undertaken by the Applicant and his law-abiding behaviour in custody, “has substantially ameliorated the 2017 assessment that he constitutes a “HIGH risk of re-offending””. The Minister submits that this conclusion was open to the Tribunal on the materials before it.

29    Ground 2.4, the Minister submits, involves the contention that the Tribunal was “dismissive” of the evidence of his partner who referred to the negative effects of the Applicant’s imprisonment on their children and that he is “an amazing partner and father”. The Minister submits that the relevant evidence was clearly taken into account by the Tribunal in its assessment of the best interests of minor children in Australia. It had been open to the Tribunal to have noted, however, that given its finding that the Applicant’s risk of reoffending was high, “fulfilling his aspiration to play a more meaningful role in his children’s lives remains uncertain”. The Tribunal took into account that it was uncertain whether the Applicant’s partner and children would accompany him to New Zealand. The Minister submits that “The Applicant’s complaint amounts to no more than a disagreement of the weight given by the Tribunal to the evidence of his partner.”

The Applicant’s submissions

30    The Applicant did not file any written submissions. The Court extended the opportunity to him as an unrepresented litigant to make oral submissions during the hearing, however that opportunity was not taken.

Consideration

Ground 1.1

31    I accept the Minister’s submissions that the Applicant misunderstands the import of the decision of the High Court in Makasa. 

32    Makasa precludes the Minister from re-exercising a discretion his delegate or the Tribunal has earlier exercised in a visa holder’s favour where there has been no material change in those circumstances as would re-enliven the power. What the plurality of the High Court states at [48] and [49] does not preclude a decision maker having regard to the entirety of the past circumstances if a new sentence of imprisonment or some other intervening factor as the High Court refers to at [48] has triggered a subsequent decision.

33    The most critical passages of the reasoning of the plurality of the High Court are as follows:

48.         Turning then to the scheme of the Act and the AAT Act, it is important at the outset to recognise that nothing in the legislative scheme indicates an intention to displace the application of s 33(1) of the AI Act to the power conferred by s 501(2) of the Act to the extent that subsequent events or further information not previously before the Minister or a delegate provide a different factual basis upon which to form a reasonable suspicion that a visa holder does not pass the character test. A new sentence of imprisonment amounting by operation of s 501(7)(c), or contributing by operation of s 501(7)(d), to the coming into existence of a new substantial criminal record within the meaning of s 501(6)(a) is an example. A new conviction providing a reasonable basis for making a revised assessment of the visa holder's "character" − his or her "enduring moral qualities"[22] − under s 501(6)(c) is another example. Section 501(6)(c) was not argued to be engaged in this appeal.

49.         To the extent that the scheme of the Act and the AAT Act exhibit an intention contrary to the application of s 33(1) of the AI Act to the power conferred by s 501(2) of the Act, absent subsequent events or further information providing a different factual basis for the formation of a reasonable suspicion that a visa holder does not pass the character test, such an intention emerges by reference to two principal considerations. One is narrower in its ambit and arises from the generic operation of the AAT Act; the other is broader in its ambit and specific to the relationship between s 501(2) and s 501A of the Act.

(emphasis added)

34    In this case it had been the Applicant’s April 2017 convictions and the court’s consequent imposition of a sentence in respect of those convictions “exceeding the threshold statutory period” which had engaged the automatic cancellation of his visa.

35    The Applicant, as was his right, advanced a case that “another reason” existed whereby that cancellation should be revoked. That this Court concluded on review that an earlier decision of the Tribunal which had found adversely to the Applicant was to be set aside and remitted for reconsideration according to law is immaterial to the issue decided in Makasa. Its remittal simply required the Tribunal to correctly undertake the task which it had earlier purported to have undertaken but had not.

36    No Makasa issue arises.

Ground 1.2

37    The legal reasoning advanced in the particulars of the Applicant’s grounds cannot be accepted.

38    Section 501(6)(a) of the Migration Act in terms provides that a person does not pass the character test if they have a substantial criminal record as defined by subsection (7).

39    Subsection (7) then defines a “substantial criminal record” as extending to an instance in which a person has been sentenced to a term of imprisonment of 12 months or more, and to an instance in which a person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more.

40    I accept the Minister’s submissions. There was no error in the Tribunal’s analysis. That was the Applicant’s circumstances.

41    Ground 1 must be dismissed.

Ground 2

42    There are two fundamental difficulties standing in the way of the Court accepting the reasoning advanced in the Applicant’s first three particulars of Ground 2. The first is that in each instance the Applicant seeks to challenge the want of weight the Tribunal gave to certain evidence advanced on his behalf. The second is that he then asserts that the conclusions reached by the Tribunal, in consequence, manifest apprehended bias.

43    The first difficulty cannot be surmounted.

44    A fundamental proposition of Australian jurisprudence is that the Court’s task is limited to the supervision of the lawful boundaries of administrative decision making, and, subject to that, the merits of any particular decision are for the decision maker. The Applicant does not submit that the Tribunal failed to take into account the factors he identifies. He complains that they were not given due weight. Evaluating the weight to be given to any material, subject to legal unreasonableness, was for the Tribunal not this Court.

45    The Applicant is not legally represented so I do not dismiss that his contentions fairly understood might seek to put in issue legal unreasonableness but, even assuming that is so, the Minister’s responsive submissions are persuasive. In each instance there was significant material adverse to the Applicant available to the Tribunal to prefer. While a different decision maker might have given that adverse material less weight or might have given greater weight to the factors the Applicant advanced I reject that a plausible case of legal unreasonableness in any of those instances has been established.

46    Having reached that view any attack based on apprehended bias must fall away. Unfavourable findings, in such circumstances, would not be understood by a fair-minded lay observer to establish that the Tribunal brought other than an impartial and unprejudiced mind in relation to the proceeding before it.

47    I will deal with the fourth particular of Ground 2 distinctly because, as expressed by a self-represented litigant, I take that proposition that the Tribunal was “dismissive” to clearly raise an allegation of legal unreasonableness.

48    It is not in dispute that the Applicant’s partner referred to the negative effects of the Applicant’s imprisonment on their children. Her statement to the Tribunal included that he was “an amazing partner and father”. Plainly that evidence was greatly in his favour.

49    I am however unpersuaded that a plausible basis for setting the decision aside on the basis of legal unreasonableness is made out.

50    The Tribunal fairly set out the Applicant’s partner’s evidence at [139]. The Tribunal then observed the following regarding the Applicant’s relationships with his children:

141.    It is clear from the evidence that the Applicant loves his children. He has maintained a relationship with them through telephone calls and visits and aspires to resume a close parental relationship if released. The views of the Applicant’s children are not known, but the Tribunal accepts from the testimony of other family members that they love their father and want him to remain in Australia. They also have a close connection with their grandparents which whom they have lived since birth, and other family and school links.

51    However I accept the Minister’s submission that it was then open to the Tribunal to have qualified the weight it would give to that favourable material by reason of its assessment that because the Applicant’s risk of reoffending was high, “fulfilling his aspiration to play a more meaningful role in his children’s lives remains uncertain”. It is not suggested that the Tribunal erred by noting that his relationships with them had been, as a result of his criminal offending, been characterised by long periods of absence which had negatively impacted them.

52    Later the Tribunal specifically addressed the position in which the Applicant’s partner might find herself in as follows:

144.    The community would have considerable sympathy for Applicant’s partner, who understandably highlights that accompanying the Applicant to New Zealand would be very difficult. But there is no barrier to her doing so. In circumstances where the Applicant’s partner and their children accompanies him to New Zealand, this would enable the family to stay together and re-build their relationship. Some upheaval would inevitably result from practical challenges, such as finding accommodation and new schools for the older children. The children are quite young, however, and while this would understandably be a difficult transition, relocating to a comparable country like New Zealand remains a viable option. If the Applicant’s partner and children decided to remain in Australia, However, this would undoubtedly cause emotional distress, but would be a personal choice made by the Applicant and his partner. There is no evidence she and the children could not visit the Applicant in New Zealand, having previously travelled there in 2016.

53    The Applicant characterisation of the Tribunal’s reasoning as being “dismissive” of that evidence and of his relationship with his partner cannot be accepted.

54    While a different decision maker might have given different weight to any of those factors, I discern nothing as would justify a finding that the Tribunal’s decision making was vitiated by legal unreasonableness. I would otherwise dismiss the fourth particular of Ground 2 for the same reasons as I have given for dismissing the first three.

55    I dismiss Ground 2. Having previously dismissed Ground 1 consequentially I dismiss the application.

COSts

56    Counsel for the Minister advised that in the event of the application being dismissed the Minister would seek costs in a lump sum of $6500.00.

57    I identify no reason why costs should not follow the event.

58    The lump sum referred to by counsel is below scale. I will award costs in that sum.

Associate:

Dated:    3 November 2021