Federal Court of Australia

Calvey v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1389

ORDERS

THE COURT ORDERS THAT:

1.    The application is dismissed.

2.    The applicant is to pay the first respondent’s costs, to be agreed or assessed.

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

REASONS FOR JUDGMENT

ABRAHAM J:

1    The applicant, who is a citizen of New Zealand, had his Class TY Subclass 444 Special Category (Temporary) visa cancelled on 14 May 2020 under s 501(3A) of the Migration Act 1958 (Cth). The applicant’s visa was cancelled on the basis he did not pass the “character test” because he had a “substantial criminal record” as a result of being sentenced to a term of imprisonment of 12 months or more, which was being served on a full-time basis: ss 501(6)(a) and 501(7)(c).

2    On 18 May 2020, the applicant made representations to the first respondent (respondent) to have the mandatory visa cancellation decision revoked under s 501CA of the Migration Act. On 27 November 2020, a delegate of the respondent found that the discretion under s 501CA(4) to revoke the cancellation decision under s 501(3A) was not enlivened. On 7 December 2020, the applicant applied to the Administrative Appeals Tribunal (Tribunal) for review of the delegate’s decision. On 18 February 2021, the Tribunal affirmed the delegate’s decision not to revoke the mandatory cancellation of the applicant’s visa: Calvey and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 277. This is an application under s 476A(1)(b) of the Migration Act seeking judicial review of the Tribunal’s decision.

3    Prior to the hearing, the applicant had sought leave to rely on an amended originating application which included only two grounds of review, which was not opposed by the respondent. The applicant filed its amended originating application on 17 August 2021.

4    The two grounds of review are directed to the Tribunal’s consideration of the best interests of the applicant’s children in connection with “Direction no. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA” (Direction 79).

5    For the reasons below the application is dismissed, with costs.

Tribunal

6    The Tribunal conducted a hearing on 8 February 2021. On 18 February 2021, as stated above, the Tribunal delivered its reasons affirming the decision of the delegate not to revoke the mandatory cancellation of the applicant’s visa.

7    The Tribunal at [11] identified the key issue as being whether or not the discretion in s 501CA(4) to revoke the mandatory cancellation of the applicant’s visa should be exercised. To this extent, the Tribunal at [13] noted that there were two issues for consideration:

(1)    whether the applicant passed the character test (as defined by s 501(6)); and

(2)    if the applicant did not pass the character test, whether there was another reason why the cancellation decision should be revoked.

8    The applicant conceded before the Tribunal that he did not satisfy the character test on the basis that he has a “substantial criminal record” per ss 501(6)(a) and 501(7)(c), having been sentenced to a term of imprisonment of 12 months or more: at [15]-[17].

9    Noting that the applicant did not satisfy the character test, the Tribunal considered whether there was another reason why the cancellation decision should be revoked.

10    The Tribunal noted that in exercising the discretion in s 501CA, it must apply Direction 79. At [20]-[24], the Tribunal summarised the relevant principles as well as the primary and other considerations that the decision maker is generally required to consider in connection with Direction 79. These include, inter alia, the protection of the Australian community (Primary Consideration A), the best interests of minor children in Australia (Primary Consideration B) and the expectations of the Australian community (Primary Consideration C).

11    First, the Tribunal considered the protection of the Australian community: at [26]-[186]. In relation to this consideration, the Tribunal at [29] noted that two factors were relevant: (i) the nature and seriousness of the applicant’s conduct; and (ii) the risk to the Australian community should the applicant commit further offences or engage in other serious conduct.

12    The Tribunal outlined the applicant’s criminal history in a table at [34]. At [40], the Tribunal observed that the applicant’s most serious offending covered the following broad categories: (1) domestic violence related offending; (2) weapons related offending; (3) drug related offending; (4) other offending conduct; (5) offending in New Zealand; (6) conduct in custody; and (7) traffic related offences. The Tribunal considered the evidence in respect of each of these categories: at [41]-[93].

13    With respect to the first factor, the Tribunal determined that it “views the applicant’s criminal offending very seriously”: at [94]. In connection with subparagraph 13.1.1(1) of Direction 79, the Tribunal assessed various features of the applicant’s conduct which it considered supported this view, including the violent nature of his conduct in a domestic context (at [95]-[107]), that offences had been committed against police officers (at [108]-[112]), the sentences that had been imposed (at [113]-[120]), the frequency and increasing seriousness of the offences (at [121]-[128]) and the cumulative effect of his offending (at [129]-[132]). The Tribunal was also satisfied that the conduct was serious having regard to the fact that some of the offending conduct had occurred in the presence of children (at [136]-[138]), the conduct of the applicant in custody (at [139]-[140]) and his history of driving offences (at [141]-[145]).

14    With respect to the second factor, the Tribunal noted at [148] that Direction 79 provides that there are two issues for consideration: (i) the nature of the harm to individuals or the Australian community should the applicant engage in further criminal or other serious conduct; and (ii) the likelihood of the applicant engaging in further criminal or other serious conduct, taking into account available information and evidence concerning the risk of the applicant re-offending.

15    At [151]-[153], the Tribunal observed that:

[151]    The Tribunal is of the view that the trend in the Applicant’s conduct which is viewed very seriously, if it were to be repeated, could lead to more serious offending on future victims of the Australian community.

[152]    The Applicant has been convicted of numerous offences in relation to repeated domestic violence offending, weapons related offending, drug related offending, in addition to demonstrating a reckless indifference to the laws governing the use of motor vehicles, with multiple convictions for driving under the influence of drugs and with alcohol exceeding the legal limit.

[153]    There is no suggestion in either the history or material more generally that the Applicant has acquired any demonstrated level of respect for the lawful authority governing the Australian community to which he now seeks readmission.

16    And at [155]-[156]:

[155]    The Tribunal is of the view that given the Applicant’s past propensity towards committing acts of domestic violence combined with his past history for weapons and drug related offences, is conduct that, if repeated, poses a significant risk to a member or members of the Australian community – especially to women – and children that are on the periphery to this offending.

[156]    This conduct if repeated in the future, could result in very serious psychological harm and/or physical harm to members of the Australian community. Its level of seriousness (in the Tribunal’s view) would not preclude the risk of catastrophic harm to any future victim.

17    Although there was some evidence that the applicant would seek to engage rehabilitation services on his release from custody, and that his most recent offending occurred in the context of a drug addiction problem, the Tribunal found that there was evidence of a “pre-existing pattern” of offending conduct (at [164]) and the evidence that the applicant would engage rehabilitation services upon release “is insufficient to satisfy the risk posed to the Australian community given the status of the applicant’s underlying issues causing him to offend” (at [171]). Given the risk to the Australian community, the Tribunal was satisfied per subparagraph 13.1.2(1)(b) of Direction 79 that the decision “should not be delayed in order for rehabilitative courses to be undertaken”: at [172]. The Tribunal, in assessing the likelihood of the applicant re-offending also considered, inter alia, his attitude towards the offending and the lack of clinical evidence addressing his underlying criminogenic behaviours (such as drug use and emotional regulation): at [173]-[178]. The Tribunal found that there was a “significant likelihood” of recidivism and that the risk to the Australian community was “not acceptable”: at [182]-[183].

18    The Tribunal concluded at [185]-[186] as follows:

[185]    The Tribunal has had regard to the provisions of paragraph 13.1.1 and 13.1.2 of the Direction, as well as the principles outlined in paragraph 6.3. The Tribunal finds:

(i)    the nature of the Applicant’s criminal offending is viewed very seriously;

(ii)    if the Applicant’s criminal offending were to be repeated, the Tribunal is of the view that it has the capacity to cause very serious physical and or psychological harm (which may not preclude catastrophic harm) to innocent members of the Australian community is a real risk in the Tribunal’s mind; and

(iii)    there is a significant likelihood of the Applicant re-offending due to the incomplete nature of the Applicant’s rehabilitation with respect to factors leading to his risk of recidivism.

[186]    In consideration of all the evidence and each of the relevant factors contained in the Direction, the Tribunal finds that Primary Consideration A weighs very heavily in favour of non-revocation.

19    Second, the Tribunal considered the best interests of minor children in Australia: at [187]-[240]. The applicant is the biological father of three children; Child 1 of Ms AG and Child 1 and Child 2 of Ms JH (“AG” and “JH” being the pseudonyms adopted by the Tribunal to describe the applicant’s former partners). It is this part of the Tribunal’s reasons that is the subject of the application.

20    At the outset, the Tribunal noted that there was insufficient evidence that the applicant had a significant relationship with any of his step-children: at [193]-[194]. The Tribunal also noted that the applicant made no substantial submissions in respect of his nephew and, therefore, this relationship was not considered any further: at [195]-[196].

21    The Tribunal then considered the factors in paragraph 13.2(4) of Direction 79 in relation to the best interests of the applicant’s three children. The Tribunal’s findings concerning each of these factors are summarised below.

22    The Tribunal considered the nature and duration of the applicant’s relationship to each of his children: at [197]-[206]. Although there was evidence of periods of separation from Child 1 of Ms AG (eldest child), the Tribunal found the applicant had a regular presence in the child’s life until about four or five years ago. The applicant re-established contact with his eldest child via digital means and that child has expressed a desire for a relationship with the applicant. In relation to Child 1 and 2 of Ms JH, the evidence was that, inter alia, the applicant had no contact with them since 2017 and to renew contact he would need to engage in mediation to establish formal parenting orders. Ms JH and the applicant’s relationship dissolved when Child 1 and 2 of Ms JH were at a young age. Child 1 is aware the applicant is their father, Child 2 has no recollection of the applicant. In terms of the applicant’s connection to each of his children, the Tribunal was satisfied that he had a stronger relationship with Child 1 of Ms AG than Child 1 and 2 of Ms JH: at [205]. Overall, the Tribunal determined this factor weighed moderately in the applicant’s favour: at [206].

23    The Tribunal found, in considering the extent to which the applicant is likely to play a positive parental role in the future lives of his children, that this factor weighs moderately in favour of the applicant: at [207]-[213]. As to whether or not the applicant’s conduct might negatively impact on his children, the Tribunal treated this factor neutrally, noting a lack of any independent expert evidence: at [214]-[216]. The Tribunal, having regard to the likely effect of separation on the applicant’s children, found that this factor weighs moderately in favour of the applicant remaining in Australia, noting the role he has played in his children’s lives so far and that he has capacity to connect with them via digital means: at [217]-[225]. Further, the Tribunal found that although Ms AG and Ms JH have been fulfilling a parental role for the applicant’s children, it was reasonable to expect that the applicant would play a future parenting role in his children’s lives if he were to remain in Australia and so this factor weighed moderately in the applicant’s favour: at [226]-[230]. The Tribunal considered that the views of the applicant’s children were not known, and therefore this factor was not afforded any weight: at [231]-[232]. Lastly, in relation to whether there was any evidence that the applicant’s children have suffered abuse, neglect, or physical or emotional trauma as a result of the applicant’s conduct, the Tribunal determined (particularly in the absence of any expert evidence) that this factor was of no weight and was not determinative: at [233]-[236].

24    The Tribunal at [238]-[240] concluded as follows:

[238]    The Tribunal refers to the following findings:

(i)    the evidence of the Applicant, and submissions before the Tribunal with respect to the relationship the Applicant has with his biological children, and that such a relationship may be resumed (in a physical and present sense) should the Applicant be allowed to remain in Australia;

(ii)    the interrupted role the Applicant has played in the life of his biological children, and his complete absence from their lives as a result of his more recent criminal offending and subsequent incarceration;

(iii)    the reality that the Applicant’s biological children are cared for by their respective mothers;

(iv)    the absence of any independent or expert evidence about the adverse impact upon the Applicant’s biological children as a result of the Applicant’s current or possible future absence from their lives;

(v)    the Applicant’s capacity to maintain contact with his biological children via digital platforms from a foreign location;

(vi)    the moderate measure of weight the Tribunal has attributed to sub-paragraphs (a), (b), (d), and (e) of paragraph 13.2(4) of the Direction.

(vii)    the neutral position the Tribunal has taken in relation to factor (c) of paragraph 13.2(4) of the Direction; and

(viii)     factors (f), (g), and (h) carry no weight and are not determinative of any finding about this Primary Consideration B.

[239]    The Tribunal is of the view that the best interests of the relevant minor children overall weighs moderately in favour of revocation of the decision to cancel the Applicant’s Visa

[240]    The Tribunal qualifies this finding by confirming that the weight the Tribunal has attributed to Primary Consideration B is of a moderate weight only, and does not in any way, outweigh the very heavy and determinative weight the Tribunal has attributed to Primary Consideration A.

(footnotes omitted)

25    Third, the Tribunal considered the expectations of the Australian community: at [241]-[250]. After reciting the relevant legal principles, the Tribunal found at [245]-[247]:

[245]    …the Tribunal is of the view that the Applicant’s criminal offending is very serious offending, and the Australian community would reasonably expect that he should not hold a visa.

[246]    That is, the Australian community would expect the non-revocation of the cancellation of the Applicant’s Visa. In this regard, the Tribunal notes that the principle in paragraph 6.3(2) of Direction No 79 is applicable. The principle stipulates that, “The Australian community expects that the Australian Government can and should refuse entry to noncitizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere”.

[247]    The Tribunal has considered the primary consideration of the protection of the Australian community which includes the serious nature of the offences committed by the Applicant and the unacceptable risk if they were to be repeated.

26    Noting the above, and after considering relevant factors including, inter alia, the seriousness of the applicant’s offending, the length of time he has lived in Australia and the impact of removal on his children, the Tribunal concluded that this consideration “weighs very heavily” in favour of not revoking the cancellation decision: at [249].

27    Lastly, the Tribunal considered other relevant matters referred to paragraph 14 of Direction 79, including Australia’s non-refoulement obligations (at [252]-[254]), the strength, nature and duration of the applicant’s ties to Australia (at [255]-[269]), the impact on Australia’s business interests (at [270]-[272]), the impact on the victims of the applicant’s criminal behaviour (at [273]-[274]), and the extent of any impediments if removed to New Zealand (at [275]-[282]). The Tribunal concluded on this aspect at [285]:

The Tribunal is of the view that, to the extent that any of these Other Considerations, as outlined in paragraphs 14.1 to 14.5 of the Direction, weigh in favour of revoking the mandatory Visa Cancellation Decision (even when combined with each other and/or Primary Consideration B); they are by far outweighed by combined weight of both Primary Consideration A and Primary Consideration C, which weigh very heavily and determinatively in favour of non-revocation.

28    Finally, in weighing the considerations, the Tribunal was satisfied that there was no other reason why the cancellation decision should be revoked. The Tribunal concluded as follows:

[289]    In considering whether there is another reason to exercise the discretion afforded by s501CA(4) of the Migration Act to revoke the mandatory Visa Cancellation Decision, the Tribunal has had regard to the Primary Considerations referred to in the Direction, and makes the following findings:

(i)    Primary Consideration A weighs very heavily in favour of non-revocation.

(ii)    Primary Consideration C weighs very heavily in favour of non-revocation.

(iii)    Primary Consideration B weighs moderately in favour of revocation.

[290]    The Tribunal has outlined the weight attributable to the Other Considerations. The Tribunal is of the view that any weight the Tribunal has found in favour of revocation from the Other Considerations (even when combined with each other and Primary Consideration B), does not in any way outweigh the very significant and determinative weight the Tribunal has attributed to Primary Consideration A and Primary Consideration C of the Direction.

[291]    The Tribunal makes this finding with reference to paragraph 8(4) of the Direction which provides that, “Primary considerations should generally be given greater weight than the other considerations”. In the Tribunal’s mind, both Primary Consideration A and Primary Consideration C have been the determinative considerations in this matter.

[292]    It is the Tribunal’s opinion that a holistic view of the considerations in the Direction therefore favours the non-revocation of the cancellation of the Applicant’s Visa.

[293]    Consequently, the Tribunal cannot exercise the discretion to revoke the cancellation of the Applicant’s Visa.

Direction 79

29    Given the focus of this application it is appropriate to refer to paragraph 13.2 of Direction 79.

30    Direction 79 requires the decision maker to determine whether revocation is in the best interests of a child who may be affected by the cancellation of a person’s visa: paragraph 13.2(1). The relevant child or children must be under 18 years of age at the time when the decision about whether to revoke the mandatory cancellation is being made: paragraph 13.2(2). If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ: paragraph 13.2(3).

31    Subparagraph 13.2(4) is in the following terms:

(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 there have been 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 care arrangements;

(c)     The impact of the non-citizen’s 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-citizen’s conduct.

Grounds of review

Ground 1: misconstruction of paragraph 13.2(4)(f) of Direction 79

32    The relevant finding is at [232] of the Tribunal’s reasons, and is as follows:

In circumstances where the Tribunal does not have the views of the Applicant’s biological children before it, the Tribunal is unable to afford sub-paragraph (f) of paragraph 13.2(4) of the Direction any measure of weight.

33    The respondent does not dispute that finding is incorrect, as the Tribunal did have evidence of the views of one of the applicant’s biological children before it. This was in the form of a statement by the applicant’s former partner Ms AG, which included inter alia, “I know that [eldest son] wants nothing more than to have a good relationship with his father”. Similarly, in her oral evidence before the Tribunal she said “[h]e just desperately wants to have a relationship with him”. There was also evidence from the applicant to similar effect.

34    Nonetheless, the respondent submitted that the error was not material and therefore the applicant had not established jurisdictional error. I will return to this submission after addressing the second ground.

Ground 2: the Tribunal failed to properly consider the interests of the applicant’s eldest child

35    It is contended that the Tribunal failed to properly consider: first, the applicant’s representation that the best interests of his eldest child was for a revocation decision to be made (including the essential integers of that representation and the associated evidence); and second, the factors/considerations in paragraphs 13(2)(b) and 13.2(4)(a), (b), (d) and (f) of Direction 79.

36    The applicant identified five matters, each of which he submitted gave rise to jurisdictional error. First, the applicant led extensive evidence showing he and his eldest child had maintained a strong and significant relationship through the exchange of letters while the applicant had been incarcerated. This was said to be an important feature of the applicant’s case that the Tribunal did not mention, which strongly invites an inference that it was overlooked. Second, the applicant led extensive evidence (and made extensive submissions) about the significant positive role he would play in the child’s life in the future; such evidence which reasonably enabled the Tribunal to make findings about the likelihood of this occurring, which it did not do (or properly do). Third, the applicant made extensive submissions and led extensive supporting evidence connected with the significant impact that the child would sustain if a non-revocation decision was made. Fourth, despite the significant case led by the applicant concerning the child’s best interests, the Tribunal failed to disclose any appreciation of what his best interests called for. For example, the Tribunal made no attempt to grapple with the health impacts on the child that would result from non-revocation (despite clear and concerning evidence) and the fact that a non-revocation would almost inevitably result in no meaningful relationship subsisting or the flow on effects of that (for example, health, happiness development and social and educational needs). Fifth, as a result of the misconstruction of subparagraph 13.2(4)(f) of Direction 79 the Tribunal did not give proper consideration to the views of the eldest child.

37    Generally, the submission was that the Tribunal was required to consider these representations, it did not, and if they were, it was in a superficial manner which did not engage with the evidence, which was characterised as important.

38    Section 501CA(4) of the Migration Act enables the revocation of a cancellation made under s 501(3A) if the person makes representations in accordance with an invitation to do so. The statutory power is only enlivened if revocation has been requested and representations are made in support of that request. Those representations play an important role in the decision maker’s determination of whether they are satisfied that there is “another reason” why the cancellation should be revoked: GBV18 v Minister for Home Affairs [2020] FCAFC 17; (2020) 274 FCR 202 (GBV18) at [31]. The making of the representations is a condition on the exercise of the statutory power. As such the representations plays a central role in the statutory regime.

39    The Tribunal was under an obligation to consider the representations made under s 501CA(4). To the extent that the representations are a mandatory consideration, the decision maker is obligated to consider them as a whole: Minister for Immigration and Border Protection v DRP17 [2018] FCAFC 198; (2018) 267 FCR 492; Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216; (2018) 267 FCR 643 (Maioha) at [49]. However, a decision maker is only required to consider a representation or claim which is “substantial” or “significant” and “clearly articulated”: Say v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 84 at [6].

40    As to what is meant by the obligation to consider, in this context, the Court observed in Minister for Home Affairs v Omar [2019] FCAFC 188; (2019) 272 FCR 589 (Omar) at [35]:

There is a helpful discussion of what is meant by the obligation of a decision-maker to “consider” a matter in a judicial review context in Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; 252 FCR 352, which involved two judicial review cases which were heard together. Those cases involved claims that the Minister had failed to give proper, genuine and realistic consideration to the merits of the two cases where the Minister cancelled the two appellants’ visas under s 501(3) of the Act. The Minister is empowered under that provision to cancel a visa if the Minister reasonably suspects that the person does not pass the character test and the Minister is satisfied that the cancellation is in “the national interest”. The relevant discussion is at [29] to [62] per Griffiths, White and Bromwich JJ.

41    Without repeating the summary of the relevant principles, I also refer to Omar in GBV18 at [32].

42    The Tribunal is not required to refer to every piece of evidence or contention: Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352 (Carrascalao) at [45]; Minister for Home Affairs v Buadromo [2018] FCAFC 151; (2018) 267 FCR 320 (Buadromo) at [49]. Nor is the Tribunal obliged to make a finding of fact with respect to every claim made or issue raised, it may be irrelevant or subsumed in a broader claim: Buadromo at [46]. There is a difference between failing to advert to evidence which, if accepted might have led to a different finding of fact, and ones that would not: Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593 at [46]-[47] citing Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [87]-[97].

43    The Tribunal may commit jurisdictional error if it does not engage in an active intellectual process or give proper, genuine and realistic consideration to: a “substantial, clearly articulated argument relying upon established facts”: Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389 at [24]; a claim “raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review”: NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 at [63]; or a matter “that is an essential integer to an applicant’s claim”: ETA067 v Republic of Nauru [2018] HCA 46; (2018) 360 ALR 228 at [14]; and see Singh v Minister for Home Affairs [2019] FCAFC 3; (2019) 267 FCR 200 at [34].

44    As explained by the Full Court of this Court in Maioha at [45], the role of the reviewing court is to qualitatively assess “the reality of consideration by the decision-maker” and the question is ultimately “whether the decision-maker has as a matter of substance had regard to the representations”. Each case necessarily turns on its own particular facts and circumstances as established by the evidence: GBV18 at [32]; Omar at [36]

45    A finding that a tribunal has not engaged in an active intellectual process will not be made lightly and must be supported by clear evidence, bearing in mind that the applicant carries the onus of proof: Carrascalao at [48].

46    It is appropriate to also recognise that the reasons of an administrative decision maker are not to be “construed minutely and finely with an eye keenly attuned to the perception of error”: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ, citing Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; (1993) 43 FCR 280 at 287.

47    Against that background I turn to the five matters identified by the applicant.

48    I note that submission is directed to only one of the applicant’s children, with the findings in respect to his two other children not being challenged.

49    As to the first matter, the failure of the Tribunal to mention the letters which were said to show the regularity of contact, the closeness of the relationship and the significant attempts by the applicant to stay in his eldest child’s life. In that regard, as noted above, the Tribunal concluded the applicant has a relationship with his eldest child. The Tribunal stated at [198]-[201]:

[198]    Ms AG’s statement to the Tribunal reveals that the last time the Applicant was physically present with Child 1 was four to five years ago, with the Applicant qualifying this statement by saying it was the last time Child 1 was in the Applicant’s care. The Applicant has stated that since then he has probably seen Child 1 on three occasions (due to his drug dependency).

[199]     It is evident on the face of submissions from the Applicant and his former partner Ms AG, that despite periods of absence in Child 1’s life, the Applicant has begun reconnecting with Child 1, through text messaging and speaking on the phone.

[200]    The Tribunal heard evidence from Ms AG who confirmed that this reconnection has occurred from approximately March 2020, and that their child “desperately wants a relationship with his father”.

[201]     The Tribunal accepts that the Applicant was a regular presence in the life with Child 1 from the time Child 1 was born until four to five years ago (as described by Ms AG, and confirmed by the Applicant). Ms AG described the Applicant as, “not a good partner, but he was an excellent dad”. Despite the gap in contact between the Applicant and Child 1, the Tribunal accepts that the Applicant does have a relationship with Child 1.

(footnotes omitted)

50    The relevance of the letters was that there was communication between the eldest child and the applicant. It is not at all clear why it is suggested now by the applicant that the letters were the most important form of communication, given that digital and oral communication with his eldest child occurred and was referred to by the Tribunal. There is no basis in the evidence to differentiate between the forms of communication as to what was more or less significant, nor was I directed to any aspect of the court book or Tribunal transcript which is said to support such a submission. The evidence from the applicant was that he regularly wrote to his eldest child. There is nothing about the nature and content of any communication in that regard. Ms AG’s evidence was that she thought their son responded to the applicant’s letters on a couple of occasions. Ms AG’s evidence was that they communicated by phone, text messages and speaking. I accept that the applicant’s oral evidence was that at the time, he wrote back more frequently. The applicant’s submission that there was a “constant” exchange of letters, and that it is objectively more significant than the other forms of communication, appears to elevate the significance of the evidence above the position it held. That said, there was no need for the Tribunal to make such findings as to the frequency of the letter communication or which was the more significant form of communication. The Tribunal stated that Ms AG had confirmed the reconnection occurred from approximately March 2020 and that his eldest child “desperately wants a relationship” with the applicant. Leaving aside any issue with the evidence as to frequency on the part of the eldest child to communicate by letter, it is plain that it was the fact of communication and the reconnection of the relationship which was at issue, not its form.

51    The Tribunal considered the representation made, although not referring to all the evidence of all the forms of communication relied on in support. The letters could not have led to a different finding of fact in relation to the representation.

52    The Tribunal concluded at [201] that the applicant has a relationship with his eldest child. This conclusion was referred to and applied elsewhere, for example at [208] as to subparagraph (b) of 13.2(4) where the Tribunal said:

It has been acknowledged that the Applicant has been absent from the life of Child 1 for the past four to five years, apart from a handful of catch ups as referred to in earlier reasons of this decision. Despite this, evidence before the Tribunal indicates that the Applicant has reconnected with Child 1.

And see [218] in relation to subparagraph (d).

53    The applicant has not established that the Tribunal’s failure to refer to this aspect of the evidence in considering the relevant submission reflects a failure to properly consider the representation such as to found a jurisdictional error.

54    As to the second matter, that the Tribunal should have made a finding about the likelihood of the applicant playing a positive parental role in the future, which it did not do or did not properly do.

55    On that issue, the Tribunal concluded at [209] that:

Child 1 is currently 11 years of age, with some nine years remaining until they reach the age of 18 years, meaning that it is reasonable to conclude that should the Applicant be able to remain in Australia, there are some nine years for the Applicant to play a positive role in Child 1’s life. This is particularly so given the statements from the Applicant and Ms AG, that Child 1 wishes to resume a relationship with their father.

56    The Tribunal also referred to this conclusion at [228], as follows:

The Tribunal has already found that it is reasonable to expect the Applicant to play a role in the parenting of Child 1 into the future until they obtain the age of 18 years, should he be allowed to remain in Australia.

57    The applicant asserts in his written submission that there was extensive evidence on this topic which would have reasonably enabled the Tribunal to make a finding about the applicant’s likelihood of playing a positive role. It was submitted that the reference in [209] was fleeting, and no more than stating that there are nine years in which applicant could potentially play a positive role, but says nothing about the extent or likelihood of that occurring. It was submitted that it would have been expected that the Tribunal would have considered the extent to which the applicant had played a positive role in the eldest child’s life in the past; the extent the applicant indicated that he wished to be involved in the eldest child’s life in the future; and the likelihood of this intent manifesting, including by reference to the current custodial arrangements that were in place and that the child’s mother expressed intentions allowing a relationship to take place.

58    I note there was plainly evidence on the topic, although one might query whether the evidence and submissions are properly described as “extensive” as repeatedly asserted in this and other aspects of the applicant’s submissions. I note also that although there was evidence, it was tempered. For example, Ms AG said that even if the applicant were to remain in Australia it would take a long time for him and his eldest child to develop a close relationship, as she did not want him to start such a relationship only for it to be taken away again (which is clearly a reference to being let down by the applicant). The applicant’s submission proceeds on a basis that what the applicant intends or desires as to his role, will necessarily eventuate. In that regard, the applicant’s submissions are made in a vacuum from other findings, which included inter alia, the incomplete nature of his rehabilitation with respect to factors leading to his risk of recidivism (and the findings underpinning that as to his offending and failure to undertake rehabilitation, including inter alia, addressing his drug addiction and domestic violence). This simply illustrates that the submission that further findings were required must be considered in its proper context.

59    Moreover, and importantly, the applicant’s submission is also based on an incorrect premise. Contrary to the applicant’s submission, [209] is not simply saying there is a potential for the applicant to have a positive role. Rather, properly read and in context, the Tribunal concludes that it is reasonable to expect the applicant would play a role in the parenting of his eldest child in the context where he has reconnected with his eldest child and his eldest child wishes to resume the relationship. The Tribunal had earlier referred at [201] to the fact that for the first four to five years of his eldest child’s life he was a regular presence but, as observed at [208], the applicant had been absent from his eldest child’s life for the past four to five years, apart from a handful of catch ups. The Tribunal recites that the evidence from the applicant was he had seen his eldest child on three occasions. The Tribunal notes the applicant’s evidence that this occurred because of his drug dependency. It follows that a numbers of the topics which the applicant contended ought to have been considered, were topics the Tribunal had addressed.

60    I do not accept the submission that the Tribunal’s conclusion was tokenistic. Nor do I accept the suggestion that the Tribunal was required to make more findings, or more specific findings, give the state of the evidence. On the evidence a finding was made.

61    As to the third matter, the impact on the child. Again, the applicant contended that he led extensive evidence on this issue, including: the maintenance of the current relationship between the applicant and his eldest child (by means other than in person) was causing the child significant mental health issues (including suicidal thoughts); that a non-revocation decision would “severely” damage the child and have the consequence that he could “never have the possibility of a close relationship” with the applicant; and a non-revocation decision would be further detrimental to the child by virtue of the likely cessation of the close relationship between the child and the child’s grandfather. It was submitted this material was not referred to or engaged with by the Tribunal.

62    The Tribunal concluded at [218]-[219]:

[218]    The Tribunal has submissions from Ms AG that their biological child, “desperately wants a relationship with his father”. The Tribunal has previously referred to the reconnection which has occurred between the Applicant and his son, despite the Applicant’s long period of absence the life of Child 1.

[219]    The Tribunal has had regard to submissions of Ms AG, regarding the tragic death of the first child she shared with the Applicant, which occurred in New Zealand, and ultimately resulted in their leaving New Zealand and returning to Australia. Ms AG has stated that in circumstances where the Applicant does not have his visa restored to him and he is deported to New Zealand, she would not be in a position to travel with Child 1 to visit the Applicant in New Zealand given the emotional trauma she experienced. The Tribunal observes that current communication methods the Applicant presently has with Child 1 could continue should he be deported.

(footnotes omitted)

63    Further at [222]-[225], the Tribunal concluded:

[222]     Aside from submissions of the Applicant and their respective mothers, there is no evidence of the views of the relevant children expressing or delineating any adverse effect upon them were the Applicant to be removed from Australia.

[223]    The Tribunal accepts that Ms AG and Ms JH have agreed to facilitate a relationship between the Applicant and his biological children should he be allowed to remain in Australia.

[224]     The Tribunal observes that electronic communication has never been more readily available. In the event the Applicant’s children wished to contact the Applicant in the future, there is capacity to maintain contact with his Australian biological children through text messaging, social media platforms, or visual and real time contact via digital platforms from foreign locations.

[225]    Having regard to the evidence, and the role the Applicant has played in the lives of his biological children thus far, and considering the Applicant’s capacity to maintain contact with his children via digital means, the Tribunal is of the view that sub-paragraph (d) is of a moderate weight in favour of a finding that it is in the best interests of the relevant minor children in favour of a finding that the Applicant be allowed to remain in Australia.

64    I note also [238], recited above at [24], which refers inter alia, to the lack of independent or expert evidence.

65    The applicant’s submission must be considered in context.

66    As the respondent submitted, the impact on the eldest child was not a matter addressed in the applicant’s representations to the Minister. The applicant’s statement of facts, issues and contentions in the Tribunal did not contend his removal would have any impact on his eldest child. The only evidence bearing upon this issue was from Ms AG (the eldest child’s mother), who gave a statement that she had taken her son to the doctor’s recently for a referral to a psychologist because he had been having some problems, including suicidal thoughts which seem to be connected with his desire to have a good relationship with his father, and that his mental health would be “severely damaged” if the applicant were removed from Australia. In cross-examination, Ms AG gave evidence that the doctor’s visit for her son’s mental health also related to school bullies. The topic was referred to by the applicant’s representative in oral closing submissions before the Tribunal. In advancing the submission the applicant’s representative put the ongoing impact or impact of possible future absence on the applicant’s eldest child’s life on the basis that he, (the representative), was not an expert in these matters, but was drawing on assumption, experience, and judicial knowledge.

67    I note also that although part of the applicant’s submission asserts that the Tribunal omitted to consider that the impact of a non-revocation decision would include further detriment to the child by virtue of the likely cessation of the close relationship between the child and his grandfather, the material before the Tribunal does not support that. The material relied on in the applicant’s written submission in support of that contention is the passage of the reasons at [263] which is as follows:

Additionally, the Tribunal has had regard to the evidence of the Applicant’s father who appeared as a witness, describing the impact the Applicant’s removal would have upon him, particularly with respect to maintaining a regular presence in the lives of the Applicant’s children.

68    However, it is apparent that finding, and the evidence on which it was based was directed to the potential impact on the applicant’s father, not on the applicant’s eldest child if the applicant were removed. That is, the evidence is not about the impact on the child, and there appears to be no evidence on that topic. There is no evidence from Ms AG to that effect. Moreover, there appears to be no basis in the evidence to contend that if the applicant were deported, there would likely be a cessation of the close relationship between the applicant’s eldest child and his grandfather. Rather, all the evidence is that this relationship has been maintained even though the eldest child was not in contact (or had limited contact) with the applicant at that time. The applicant’s father’s evidence was that he would remain in Australia even if his son was removed. There is no evidence that the applicant’s eldest child would have any less of a relationship as a result.

69    The Tribunal’s conclusions on this topic are also not to be considered in isolation. That is, the Tribunal had already referred to and made findings about other matters relevant to his eldest child.

70    In this context, I am not satisfied that it has been established that the Tribunal was not aware of, and did not consider the submission as to the impact on the applicant’s son. The Tribunal’s reference to the absence of an expert or independent person gives rise to the inference that the Tribunal was cognisant of the lay evidence from Ms AG, but that was the extent of the evidence. This comment was in the context where, as explained above, the applicant’s representative put the applicant’s submission on the basis he was not an expert, highlighting the absence of such evidence. The absence of such supporting evidence where it might be expected, may affect the weight to be attached to the underlying evidence, which is a matter for the Tribunal. In any event, even if the inference sought by the applicant were to be drawn, in the circumstances, the applicant could not establish materiality (applying the principles referred to below).

71    As to the applicant’s submission that the non-revocation would result in him never having the possibility of a close relationship with the eldest child, the Tribunal addressed matters directed to the continued contact between them in the passages recited above. The Tribunal considered contact could be by the current communication methods and by the many social media avenues. It cannot be said that the Tribunal did not consider this aspect of the submission.

72    As to the fourth matter, that the Tribunal failed to disclose any appreciation of what the eldest child’s best interests called for. The applicant submitted that to demonstrate that proper consideration has been given to a child’s interests, it is necessary to identify what those interests are and what they called for and for the reasons to disclose an appreciation of those matters. This was said to involve giving consideration to matters such as the impact of non-revocation on the child’s “health, happiness and social and educational development”, citing inter alia, Sebastian v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 31 (Sebastian) at [11] and Perez v Minister for Immigration and Multicultural Affairs [2002] FCA 450; (2002) 119 FCR 454 (Perez) at [118].

73    It was submitted that in this case the Tribunal made no attempt to grapple with the health impacts on the child that would result from non-revocation, or would almost inevitably result in no meaningful relationship subsisting or the flow on effects of that (in terms of, for example, health, happiness development and social and educational needs). It is submitted that the reasons need to identify what the interests are, and what the interest called for.

74    It was submitted by the respondent that the Tribunal’s role is not to conduct a wide-ranging inquiry into what the best interests of the child might require in a general sense, but rather to consider whether revocation would be in the best interests of the child, in accordance with Direction 79. The respondent pointed out that Perez was concerned with a situation where the Tribunal had not mentioned the best interests of the child at all, and the judgment is referring to the kinds of matters that one might expect to see in the Tribunal’s reasons had it undertaken the consideration of what the best interests of the child require. It was further submitted that in Sebastian, the Court distinguished Perez on the basis it was a case where the delegate did not consider the best interests of the child at all. In response, the respondent submitted that a number of the matters which the applicant relies on as the kinds of things that the Tribunal might have been required to decide in determining the best interests of the children are not mandated by Direction 79 or in evidence before the Tribunal.

75    As the respondent correctly submitted, this complaint is really a variation on the third matter.

76    The passages relied on by the applicant from Sebastian and Perez must be considered in their proper context. As the Court in Sebastian recognised at [13], the facts in “in Perez are quite different from those pertaining to the present case. The delegate there had not said that he had taken the children’s interests into account as a primary consideration and there was nothing to indicate that he had turned his mind to matters relevant to such a consideration to come to a view”. The Court at [15] said the “[w]e do not take his Honour in Perez to lay down a rule that in every case a decision-maker must go through a list of factors which might inform a decision as to what is in the best interests of the child”. 

77    In Brown v Minister for Immigration and Border Protection [2015] FCAFC 141; (2015) 235 FCR 88, the Court similarly distinguished Perez observing at [34]: 

It follows that the appellant’s reliance upon the decision in Perez [2002] FCA 450; 119 FCR 454 is, with respect, misplaced. There, the applicant sought judicial review of a decision refusing to revoke a decision to detain him in immigration detention shortly before he completed his last prison sentence in circumstances where it was not known when he could be deported. Allsop J upheld the challenge to that decision on the basis that the Minister’s delegate had failed to take into account the best interests of the applicant’s children as a primary consideration, applying the decision in Teoh [1995] HCA 20; 183 CLR 273. However, in that case the delegate did not state that he had taken the children’s interests into account as a primary consideration (Perez 119 FCR at 486 [118]-[119]). Nor was there anything in the reasons which displayed an appreciation by the delegate of the kinds of considerations relevant to minor children which form their best interests (Perez 119 FCR at 486 [118]-[119]; see also at 476 [82]). It was for these reasons that Allsop J found that the delegate’s decision fell short of what Teoh [1995] HCA 20; 183 CLR 273 required (119 FCR at 486 [121]). By contrast, in this case the Minister expressly found that the best interests of the children were served by non-cancellation, turned his mind to the relevant evidence, and stated that he took those interests into account as a primary consideration.

And see: Kaur v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 70 at [20]-[21].

78    The Tribunal here found that the best interests of the relevant minor children were served by the revocation of the cancellation. This consideration weighed moderately in favour of revocation of the decision. Unlike Perez, the best interests of the children had been taken into account by the Tribunal.

79    As explained above, the observations in Perez do not provide some sort of checklist of factors that a Tribunal must go through to fulfil its function under Direction 79. Moreover, some of the factors referred to by the applicant were topics on which no evidence was adduced or relied on as relevant in this particular case (for example, education). In practical terms, on the evidence before the Tribunal, the argument underpinning this submission is to the same effect as in the third matter. For the reasons already given, the applicant has not established that those matters were not considered.

80    The applicant has not established that the Tribunal failed to properly consider the best interests of the applicant’s eldest son. The applicant has not established jurisdictional error in respect to those aspects of the second ground.

81    The fifth and final matter is that relied on in support of the first ground, that the Tribunal did not give proper consideration to paragraph 13.2(4)(f), with the consequence of the Tribunal not having regard to the known views of the child in the weighing process associated with paragraph 13.2(4)(f). As noted above, the respondent accepts that this is so in respect to that paragraph, but contends that the error is not material on the basis inter alia, that the views of this child were taken into account elsewhere by the Tribunal and jurisdictional error is not established.

Materiality

82    As noted above, the respondent conceded error in respect to the first ground (and the fifth matter in ground two) but submitted it was not material. It is necessary to return to that submission.

Submissions

83    The applicant submitted inter alia, that the Tribunal’s approach was to fix a weight to each of the subparagraphs in paragraph 13 of Direction 79, and that weight ultimately bore on its ultimate attribution to Primary Consideration B. The Tribunal’s affixation of no weight to subparagraph (f) meant that in respect of a factor that could have been given very heavy weight, it was given no weight at all. If heavy or very heavy weight was given to subparagraph (f), there is no way of knowing how that could have affected the ultimate weight attribution of Primary Consideration B. It would have been open for the Tribunal to determine that consequently, heavy or very heavy weight could be attributed. It was submitted that the Tribunal, in approaching the exercise with an open mind, could have reasonably considered the views of the child as very significant, and given that the highest degree of weight of the subparagraphs, which could have had a material effect on the ultimate weighing process and there is no reason why it could not consider it to be determinative. Even if the Tribunal did not consider Primary Consideration B to be of itself the weightiest or determinative consideration, the Tribunal could have considered that when it was combined with other considerations, that those as a collective were the weightiest or most determinative.

84    The respondent submitted that in the circumstances the Tribunal’s error was not material. It submitted that although the topic was not specifically addressed in respect of subparagraph 13.2(4)(f), the Tribunal referred multiple times to the evidence from Ms AG that her child wants a relationship with the applicant when considering: (1) the nature and duration of the relationship between the child and the applicant: subparagraph 13.2(4)(a); the extent to which the applicant is likely to play a positive parental role in the future: subparagraph 13.2(4)(b); and the likely effect that separation would have on the child: subparagraph 13.2(4)(d). Further, it submitted that any finding under subparagraph 13.2(4)(f) could only have related to one of the applicant’s three children, as there was no evidence before the Tribunal as to the views of his other two children. It cannot be said that the Tribunal’s decision could have realistically been different had the Tribunal ascribed some weight in the applicant’s favour to the factor in subparagraph 13.2(4)(f). The Tribunal already concluded that Primary Consideration B weighed moderately in the applicant’s favour, but that it was outweighed by the “determinative” Primary Considerations A and C. It cannot be said that the error in relation to subparagraph 13.2(4)(f) was so significant that it could realistically have altered the Tribunal’s conclusion.

Consideration

85    In order for this error to be jurisdictional, it must be material, in the sense that compliance could realistically have resulted in the making of a different decision: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 (SZMTA) at [45]: MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 95 ALJR 414 (MZAPC) at [2]-[4]. Existence or non-existence of a realistic possibility that the decision could have been different is a question of fact which the applicant in an application for judicial review of the decision on the ground of jurisdictional error bears the onus of proof: MZAPC at [2]-[4]; SZMTA at [46].

86    Given the factor that is said not to have been considered, in the circumstances of this case, the applicant has not established that there is a realistic possibility the decision would have been different.

87    Accepting that the Tribunal approached its task by attributing a weight to each factor and then considering the conclusion in respect to subparagraph 13.2, and the error related to subparagraph (f), nonetheless, a plain reading of the Tribunal’s reasons reflect that it approached its assessment of the best interests of the child on the basis that the eldest child wanted the applicant to stay in Australia and was desperate to have a relationship with him. That fact of the child’s wishes was known and considered by the Tribunal. Moreover, the error in relation to this subparagraph relates only to one of three children. The findings in respect to subparagraph 13.2, as reflected in [238] recited above at [24], encompasses all the applicant’s children and not just his eldest child. Moreover, the applicant’s submission as to the potential impact of subparagraph (f) ignores the context in which the conclusion in respect to subparagraph 13.2 were made. The submissions made are artificial.

88    The impact of the applicant’s removal was also taken into account in Primary Consideration C, at [248], and in the other considerations. In respect to the other consideration at [267] the Tribunal found that the impact on the applicant’s biological children and the applicant’s family and friends were he to be removed from Australia weighed heavily in favour of the applicant.

89    However, as summarised by the Tribunal at [185], recited above at [17], it found that Primary Consideration A weighed heavily in favour of non-revocation. The same finding was made at [250] in respect to Primary Consideration C at [290] where the Tribunal concluded:

The Tribunal has outlined the weight attributable to the Other Considerations. The Tribunal is of the view that any weight the Tribunal has found in favour of revocation from the Other Considerations (even when combined with each other and Primary Consideration B), does not in any way outweigh the very significant and determinative weight the Tribunal has attributed to Primary Consideration A and Primary Consideration C of the Direction.

90    The weighing process of the Considerations is in [289]-[290] of the reasons, referred to above at [28], and is unnecessary to repeat.

91    Given the findings of the Tribunal, the applicant has not established that the assessment of the eldest child’s wishes under subparagraph (f) could realistically have led to the Tribunal making a different decision.

92    Moreover, I note that even if the applicant had established that other material was not properly considered (as relied on in ground 2), it has not been established it could realistically have resulted in the Tribunal making a different decision.

93    The applicant has not discharged his onus of establishing that the error is material. As a consequence the applicant has not established any jurisdictional error.

Conclusion

94    The application is dismissed, with costs.

Associate:

Dated:    10 November 2021