Federal Court of Australia

QGDC v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1375

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The applicant pay the first respondent’s costs of the application, to be assessed in default of agreement in accordance with the court’s Costs Practice Note (GPN-COSTS).

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

REASONS FOR JUDGMENT

SNADEN J:

decision

1    The applicant is a citizen of Vanuatu. He moved to Australia in or around 2014 to be with his then partner, with whom he subsequently had three children. Sometime in early- to mid-2017, the applicant and his partner separated. Then, in or around November 2017, the applicant was granted a partner visa under the Migration Act 1958 (Cth) (hereafter, the “Act”).

2    The following year, the applicant committed a series of physical and sexual assaults upon his (by then) ex-partner during contact visits with his children. Some of those assaults occurred in the children’s presence. He was arrested and later convicted of one count of assault and four counts of indecent assault, in respect of which offences he was sentenced by the Supreme Court of Tasmania to two years’ imprisonment.

3    On 5 December 2018, the applicant’s visa was cancelled pursuant to s 501(3A) of the Act (hereafter, the “Cancellation”). In accordance with s 501CA(3) of the Act, the applicant was invited to make representations as to why the Cancellation ought to be revoked, which he accepted. On 17 September 2020, a delegate of the first respondent (the “Minister”) made a decision not to revoke the Cancellation (the “Non-Revocation Decision”). On 18 September 2020, the applicant applied to the second respondent (the “Tribunal”) for a review of the Non-Revocation Decision. The applicant attended a hearing before the Tribunal on 24 November 2020, at which he represented himself. On 30 November 2020, the Tribunal affirmed the Non-Revocation Decision and published reasons for doing so (the “Tribunal’s Decision”).

4    The applicant now applies to this Court under s 476A of the Act for prerogative relief directed at the Tribunal’s Decision, which he claims was a product of jurisdictional error. Specifically, the applicant alleges that the Tribunal’s Decision was premised on a finding for which there was no evidence.

5    For the reasons that follow, the application will be dismissed with costs.

statutory framework

6    Section 501 of the Act sets out the circumstances in which the Minister may—or, as in the present case, must—cancel a visa on character grounds. It provides, relevantly:

501     Refusal or cancellation of visa on character grounds

…

(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.

…

(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…

7    Section 501CA of the Act provides that a non-citizen whose visa has been cancelled pursuant to s 501(3A) of the Act may apply for that decision to be revoked. It relevantly provides as follows:

501CA    Cancellation of visa—revocation of decision under subsection 501(3A) (person serving sentence of imprisonment)

(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.

8    Section 496(1) of the Act permits the Minister to delegate his or her powers under the Act. Section 500(1)(ba) of the Act provides that applications may be made to the Tribunal for review of “decisions of a delegate of the Minister under subsection 501CA(4) not to revoke a decision to cancel a visa”.

9    Section 499 of the Act confers upon the Minister a power to issue binding directions to people or bodies that exercise powers or functions under the Act as to how those powers or functions are to be exercised or performed. Relevant presently is a written direction issued by the Minister under that section in December 2018, entitled “Ministerial Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA”. That direction (hereafter, “Direction 79”) provides guidance as to how the power conferred by s 501CA(4) of the Act might be exercised. It requires that decision makers who are charged with considering the exercise of that power must take into account a series of identified considerations. One “primary consideration” required to be taken into account under Direction 79 is the “best interests of minor children in Australia”.

10    It is not in contest that the applicant made representations of the sort contemplated by s 501CA(4)(a) of the Act. It was also not in contest that the applicant, having been sentenced to two years’ imprisonment for his offences, did (and does) not pass the “character test” to which s 501CA(4)(b)(i) of the Act refers. At issue before the Tribunal was whether there was “another reason” under s 501CA(4)(b)(ii) of the Act why the Cancellation ought to have been revoked.

The Tribunal’s decision

11    Most of the Tribunal’s Decision is irrelevant to the resolution of the present application. Of relevance presently is the Tribunal’s consideration of the impact that a refusal to revoke the Cancellation would have on the interests of the applicant’s children (being minor children in Australia), as required under Direction 79.

12    The Tribunal recorded the nature of the applicant’s offending by reference to the evidence that he gave before the Tribunal. The relevant aspects of that evidence are summarised at [31] of the Tribunal’s Decision as follows:

(g)    The Applicant was taken through the circumstances of his offending. He agreed that he overstayed agreed visit times with the children, ignored his ex-partner's requests to leave, touched her breasts and vagina on multiple occasions when she said ‘no,’ climbed into bed with her with no pants on, and that his sexualised behaviour was witnessed by their children. He agreed that during one assault his then six-year-old daughter tried to drag him off her mother, causing him to become angry with the child. When his ex-partner tried to comfort the child, the Applicant agreed he grabbed his ex-partner from behind using ‘like a choke hold’ and threw her on the bed. He accepted that the children witnessed the indecent assault that followed from the open door. When asked if men in Vanuatu expected their women to be obedient and compliant, the Applicant stated: ‘It's part of the culture yes.’ When asked if he agreed with the culture, the Applicant responded: ‘Yes;’

(h)    When asked if he accepted that his children suffered trauma as a result of his assaults against their mother, the Applicant initially resisted the proposition, stating: ‘It's hard for me to believe because I haven't asked them myself.’ After further questions he accepted the children were traumatised by his behaviour. The Applicant also accepted his two eldest children had previously chosen not to participate in contact visits with him because the children had stated: ‘Daddy always growls at me’ or ‘Daddy is mean to me and uses the ‘F’ word.’ The Applicant agreed, consistent with a police report in evidence, that there were occasions when he whipped his children with coat hangers;

13    The Tribunal then made the following findings in respect of the best interests of the applicant’s children:

71.    The Tribunal notes material in evidence from the sister of the Applicant’s ex-partner, in which it is claimed the Applicant threatened, abused the children verbally and physically, and left them unattended while his ex-partner was at work. There is also material from the Applicant’s ex-partner and her sister, stating that the two eldest children had chosen not to participate in visits because of the Applicant’s verbal abuse and had expressed an intention not to see their father anymore. The Applicant conceded during his oral evidence that he had verbally and physically abused his children on occasions in the past, and that they were traumatised by observing his indecent assaults against their mother.

…

74.    The Applicant’s concerns about the potential effects of his behaviour on the children are shared by the Tribunal. The [Supreme] Court [of Tasmania] referred to potentially profound and long-lasting effects from the children witnessing some of the Applicant’s indecent assaults upon their mother. Any emotional trauma experienced by the minor children has arisen directly from the Applicant’s violent criminal conduct. The Tribunal considers the anger he directed towards his six-year old daughter while she was trying to protect her mother, and the other concessions he made, including hitting his children with a coat hanger, demonstrates the Applicant’s unacceptable past attitude to the safety and emotional wellbeing of his children.

14    Later, under the heading “conclusion”, the Tribunal observed:

114.    The indecent assaults committed by the Applicant in the presence of his children have likely traumatised them. Because of his actions and the two FVO’s since, the Applicant had initially limited (weekend) contact with his children and then no contact at all since June 2018. His ex-partner and children live at an undisclosed location. The parental role he aspires to play is speculative at best and currently rejected by his ex-partner. Given the specific circumstances, revocation is not considered to be in the children’s best interests.

the present application

15    The sole ground of the application before this court is that the Tribunal’s Decision was a product of jurisdictional error because it was premised on a finding for which there was no evidence. The applicant’s written submissions state as follows:

18.    …it is submitted that:

a.    The [Tribunal] made a finding about the effect on the Applicant’s children of the Applicant’s conduct towards his former spouse.

b.    There was no evidence before the [Tribunal] to support that finding.

c.    The finding was made pursuant to the obligations on the decision maker set out at Part C, Section 13.2 of Ministerial Direction No. 79.

d.     The finding was a critical step in the [Tribunal]’s conclusion to uphold the Non-Revocation Decision.

disposition

16    The Tribunal’s finding that “[a]ny emotional trauma experienced by the minor children has arisen directly from the Applicant’s violent criminal conduct”, if it be a finding, was one of fact.

17    An erroneous finding of fact will rarely suffice to establish jurisdictional error: CRU18 v Minister for Home Affairs (2020) 277 FCR 493, 503 [29] (Wigney, Jackson and Snaden JJ) (hereafter, “CRU18”). Mere factual error will not ground judicial review unless it relates to a jurisdictional fact or is a manifestation of some error of law, substantive or procedural, which constitutes jurisdictional error: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1, 16 [53] (Black CJ, French and Selway JJ).

18    In Re Minister for Immigration and Multicultural Affairs; ex parte Cohen (2001) 75 ALJR 542, McHugh J (sitting at first instance) observed (at 548-549 [35]-[36]):

A factual error made in the course of making a determination or decision is unlikely to be a jurisdictional error unless the particular fact is a jurisdictional fact. Courts should be slow to find that an erroneous finding of fact or an error of reasoning in finding a fact, made in the course of making a decision, demonstrates that an administrative tribunal so misunderstood the question it had to decide that its error constituted a jurisdictional error.

If an administrative tribunal applies a wrong legal test or asks itself or decides a wrong legal question, it may be a short step to concluding that it did not decide the question that it had to decide. But questions of fact are ordinarily for an administrative tribunal to determine and so are the reasoning processes employed to make such findings. Disagreement with a finding of fact or the reasoning process used to find it is usually a slender ground for concluding that a tribunal misconceived its duty.

19    In CRU18, the full court observed as follows:

31     A discretionary administrative decision that is materially premised upon an error of fact will rarely be beyond the jurisdictional authority of its maker simply because of that error. More needs to be established. It is neither necessary nor prudent to attempt an exhaustive statement of what more would need to be shown but typical circumstances spring readily to mind: for example, that the error gave rise to the consideration of irrelevant material, that it bespoke a failure to take account of a mandatory consideration, that it involved unreasonableness, irrationality or illogicality (in the senses contemplated by authorities such as Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (French CJ, Hayne, Kiefel, Bell and Gageler JJ) and Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, 647-648 [130] (Crennan and Bell JJ; hereafter, “SZMDS”)), that it revealed an impermissible denial of procedural fairness or that it otherwise reflected a failure to discharge the relevant statutory function. Additionally, it would need to be shown that the error was material, in the sense explained in Hossain v Minster for Immigration and Border Protection (2018) 264 CLR 123, 134-135 [29]-[31] (Kiefel CJ, Gageler and Keane JJ) and Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421, 433 [2]-[4] and 445-446 [45]-[50] (Bell, Gageler and Keane JJ).

20    If the Tribunal were to proceed upon a factual premise for which there was no evidence, then its doing so might suffice to establish jurisdictional error. That would, in effect, be an example of legal unreasonableness of the kind to which the full court in CRU18 referred. If there is any basis underlying the factual premise in question, however, jurisdictional error will not be established. The observations of Moshinsky J in BSE17 v Minister for Home Affairs [2018] FCA 1926 are apposite. In considering a ground of judicial review based upon the absence of evidence, his Honour said at [33]:

The “no evidence” ground cannot be made out unless it is established that there was no evidence capable of supporting the impugned finding or inference. Even a skerrick of evidence will mean that an allegation of jurisdictional error premised on this basis will fail: MZZUG v Minister for Immigration and Border Protection [2015] FCA 1151 at [59]. Further, evidence to support a finding or inference need not be direct, but may be found in material that permitted the decision-maker reasonably to infer a particular matter: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12 at [39]- [41] per Gummow and Hayne JJ; see also Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 367 per Deane J.

21    In the present application, there was ample evidence supporting the factual premise upon which the Tribunal proceeded. Foremost, in his oral evidence before the Tribunal, the applicant agreed that he had verbally and physically abused his children in the past, and that they were traumatised by observing the indecent assaults that he had committed upon their mother.

22    In addition, there was a raft of documentary evidence before the Tribunal from which a similar conclusion might reasonably have been drawn. That evidence included a victim impact statement made by the applicant’s ex-partner (for the purposes of the criminal proceeding brought against the applicant in the Supreme Court of Tasmania) averring to her children having witnessed some of the assaults, and to her concern about the long-term impacts that they might experience as a result. It also included a statutory declaration made by the applicant’s ex-partner’s sister (likewise for the purpose of that criminal proceeding) describing, relevantly, that one of the applicant’s children was “absolutely inconsolable” at the prospect of seeing the applicant, and that two of the children chose not to participate in visits with the applicant. It also included the sentencing remarks of Pearce J in the Supreme Court of Tasmania.

23    The applicant’s submissions to this court fixed upon one aspect of those sentencing remarks, namely his Honour’s comment that “[t]he adverse impact on children who witness family violence can be profound and long lasting, and may only emerge later in life”. The applicant submitted that there was no evidence admitted formally in the Supreme Court of Tasmania by way of an expert report or opinion that would validate such a remark; and, it followed, that the Tribunal erred in relying upon that aspect of his Honour’s sentencing remarks to found the factual premise upon which it proceeded (assuming that it did so). That submission cannot succeed. The only inquiry is whether the factual premises upon which the Tribunal relied were relied upon reasonably. That inquiry needn’t be explored through the lens of the uniform evidence law, nor the process of judicial fact finding. Especially is that so in respect of matters that the applicant admitted.

24    As is readily apparent, there was ample material before the Tribunal sufficient to underpin the challenged factual premise upon which it proceeded (namely, that there was, or may have been, some trauma visited upon the applicant’s children). There can be no question that, to the extent that the Tribunal relied upon that factual premise en route to its ultimate conclusion, it did not do so in a manner that might be impugned as legally unreasonable. It did not lack jurisdiction to reason as it did.

25    The Tribunal’s Decision was not the product of jurisdictional error. Accordingly, the application must be dismissed with the usual order as to costs.

Associate:

Dated:    10 November 2021