Federal Court of Australia

Ali v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 174

ORDERS

THE COURT ORDERS THAT:

1.    The application for judicial review be dismissed.

2.    The applicant pay the first respondent’s costs.

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

REASONS FOR JUDGMENT

CHEESEMAN J:

INTRODUCTION

1    Aktar Irfan Ali, the applicant, seeks judicial review pursuant to s 476A(1)(b) of the Migration Act 1958 (Cth) of a decision of the second respondent, the Administrative Appeals Tribunal, made on 9 December 2020 (with written reasons delivered on 24 December 2020): Ali and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 5232. In that decision, the Tribunal affirmed a decision of a delegate of the first respondent, the Minister, under s 501CA(4) of the Act not to revoke the mandatory cancellation of Mr Ali’s class UK-820 partner (temporary) visa.

2    The Court’s jurisdiction to review the decision of the Tribunal is the same as the jurisdiction of the High Court pursuant to s 75(v) of the Constitution: s 476A(2). Mr Ali seeks a writ of prohibition preventing the Minister from giving effect to the decision, an order quashing the Tribunal’s decision and a writ of mandamus remitting the matter to the Tribunal for determination according to law.

3    Mr Ali relies on a further amended originating application filed on 25 May 2021, for which leave was granted on 24 May 2021. The Tribunal’s decision is challenged on four grounds which variously allege that the Tribunal fell into jurisdictional error by: failing to give proper, genuine and realistic consideration to the merits of the case; failing to consider evidence in support of Mr Ali’s case; failing to observe the requirements of procedural fairness; and failing to take into account a substantial and clearly articulated argument with respect to “unprecedented levels of unemployment” in Fiji due to the impact of COVID-19.

4    For the reasons that follow, the application for review is refused with costs.

BACKGROUND

5    Mr Ali is a 37 year old Fijian national who first lawfully arrived in Australia on 20 November 2005 at the age of 22. He has resided in Australia since June 2013 when he was 30. Mr Ali has two sisters who reside in Fiji.

6    In November 2013, Mr Ali married an Australian citizen, Ms Deng. Together, they have one child, a son born in July 2014. On 5 December 2014 Mr Ali was granted a partner (temporary) visa. Ms Deng has another child, a daughter, from a previous relationship. Mr Ali and Ms Deng divorced on 6 November 2016.

7    In May 2018, Mr Ali was convicted of domestic violence offences that he committed against Ms Deng in April 2015. He was sentenced to concurrent custodial terms totalling 2 years and 11 months (suspended after serving 17 months).

8    Mr Ali failed the character test set out in s 501(6) of the Act because he had been sentenced to a term of imprisonment of more than 12 months: ss 501(6)(a) and 501(7)(c) of the Act. His visa was cancelled on 6 August 2018 under s 501(3A) of the Act.

9    On 27 August 2018, Mr Ali made representations to the Minister’s delegate seeking revocation of the cancellation of his visa in response to an invitation to do so. On 16 September 2020, the delegate decided not to revoke the cancellation decision.

10    On 17 September 2020, Mr Ali applied to the Tribunal under s 500(1)(ba) of the Act for review of the delegate’s decision.

11    On 9 December 2020, the Tribunal affirmed the delegate’s decision, providing written reasons on 24 December 2020.

APPLICABLE PRINCIPLES

12    The applicant seeks review of the Tribunal’s decision pursuant to s 476A(1)(b) of the Act.

13    The decision not to revoke the cancellation of Mr Ali’s visa was made under s 501CA(4) of the Act which relevantly provides:

(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.

14    It was common ground that Mr Ali failed the character test. The task for the Tribunal was therefore to consider whether there was “another reason” why the cancellation decision should be revoked under s 501CA(4)(b)(ii) of the Act.

15    Section 499 of the Act relevantly provides:

499 Minister may give directions

(1)     The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:

(a) the performance of those functions; or

(b) the exercise of those powers.

…

(2)     Subsection (1) does not empower the Minister to give directions that would be inconsistent with this Act or the regulations.

(2A)     A person or body must comply with a direction under subsection (1).

16    Pursuant to s 499(2A) of the Act, the Tribunal was required to comply with Ministerial Direction 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s 501CA dated 20 December 2018. Direction 79 was the then current Ministerial direction in place under s 499(1) of the Act. A failure to comply with the current Ministerial direction may amount to jurisdictional error: VKTT v Minister for Home Affairs [2019] FCA 1018; (2019) 166 ALD 443 at [19] (Burley J) and the authorities referred to there.

17    The nature of the Tribunal’s statutory task and the relevance of Direction 79 to that task was described by Stewart J in TNVP v Minister for Immigration, Citizenship, Mirant Services and Multicultural Affairs [2021] FCA 726. In the present context, Stewart J’s exposition at [12] – [14] is relevant:

Direction 79

[12]     The Minister published Direction 79 as a direction under s 499 of the Act on 20 December 2018. The direction must be applied by all decision-makers, other than the Minister acting personally, under the Act in an administrative capacity, such as the Minister’s delegates and the Tribunal.

[13]     Direction 79 constitutes guidance to decision-makers performing functions or exercising powers under s 501 of the Act, to refuse to grant a visa or cancel a visa of a non-citizen who does not satisfy the decision-maker that the non-citizen passes the character test, or under s 501CA of the Act to revoke a mandatory cancellation: cl 6.1(4). Direction 79 has three main parts. Relevant to the Tribunal’s decision was Part C which identifies considerations relevant to determining whether to exercise the discretion to revoke the mandatory cancellation of a non-citizen’s visa.

[14]     Clause 13(1) of Direction 79 is in Part C. It provides that in deciding whether to revoke the mandatory cancellation of a non-citizen’s visa, there are three primary considerations. They are, first, the protection of the Australian community from criminal or other serious conduct, secondly, the best interests of minor children in Australia, and, thirdly, the expectations of the Australian community. The remaining provisions of cl 13 deal with each of those primary considerations.

18    Of particular relevance to the present review application are the following parts of paragraph 13.1.1(1) of Direction 79:

13.1.1 The nature and seriousness of the conduct

(1)     In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to factors including:

(a)     The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;

(b)     The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;

…

(d)     Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;

19    As observed by Yates J in Minister for Home Affairs v Stowers [2020] FCA 407 (at [26]), the requirement in paragraph 13.1.1(1)(b) alludes to paragraph 6.3 of Direction 79 which sets out the “principles” that provide the framework within which decision-makers should approach the task (here) of exercising the discretion under s 501CA to revoke a mandatory cancellation of a visa. Paragraph 6.3(3) is of particular relevance to the present case:

A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

20    The principles applicable to the assessment of the Tribunal’s reasons on judicial review were comprehensively set out by Jackson J in Meyrick v Minister for Home Affairs [2020] FCA 677 at [98] (and approved by the Full Court (Charlesworth, SC Derrington and Stewart JJ) in Meyrick v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 209 at [21]):

(1)    A requirement, whether imposed by common law or by statute, to consider a matter involves a decision-maker engaging in an 'active intellectual process' directed at that matter: Tickner v Chapman (1995) 57 FCR 451 at 462 (Black CJ); NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134; (2005) 147 FCR 51 at [46] (Hill J), [212] (Madgwick J); and Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352 at [45] (Griffiths, White and Bromwich JJ).

(2)    'What is required is the reality of consideration by the decision-maker. On judicial review the Court must therefore assess, in a qualitative way, whether the decision-maker has as a matter of substance had regard to the representations put': Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216; (2018) 267 FCR 643 at [45] (Rares and Robertson JJ).

(3)    '… [W]here decisions might have devastating consequences visited upon people, the obligation of real consideration of the circumstances of the people affected must be approached confronting what is being done to people. This obligation and the expression of its performance is not a place for decisional checklists or formulaic expression': Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; (2018) 267 FCR 628 at [3] (Allsop CJ).

(4)    The degree of consideration which is necessary for the jurisdiction to have been exercised in a manner which is authorised is affected by the centrality to the issues of the matter in question, and the prominence the matter assumed: Singh v Minister for Home Affairs [2019] FCAFC 3; (2019) 267 FCR 200 at [37(1)]. While this was not said in the context of a matter which was specifically and expressly made mandatory by statute (or a direction with statutory authority), it seems to me that it still applies, provided proper allowance is made for the fact that the mandatory nature of the specific consideration will itself affect its centrality and prominence. In the end it is, with respect, a dictate of common sense; if not much is said about a matter in the material before the Tribunal, passing reference to it in reasons will be less likely to support the inference that it was not given adequate consideration.

(5)    Section 43(2B) of the Administrative Appeals Tribunal Act 1975 (Cth), which requires the Tribunal to include in its reasons its findings on material questions of fact, only requires the Tribunal to set out the findings of fact which in its opinion are material: Appellant V324 of 2004 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 259 at [8] (Hill and Allsop JJ).

(6)    So if the Tribunal's reasons do not mention a factor, the consideration of which is mandatory under Direction 65, it does not necessarily follow that it has failed to consider that factor. Section 43(2B) entitles the court to infer that any matter not mentioned in the Tribunal's reasons was considered by the Tribunal not to be material: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [69] (McHugh, Gummow and Hayne JJ), a case about s 430 of the Migration Act, but s 43(2B) of the Administrative Appeals Tribunal Act is not materially different.

(7)    It seems to me that the same can be said of the express qualification in Direction 65 that the mandatory factors for consideration are only mandatory 'where relevant'. The Tribunal was required to form an opinion about the relevance or otherwise of each factor, but in this context relevance is not a jurisdictional fact that the court must determine for itself: SZTMD v Minister for Immigration and Border Protection [2015] FCA 150; (2015) 150 ALD 34 at [20] (Perram J); and Minister For Home Affairs v HSKJ [2018] FCAFC 217; (2018) 363 ALR 325 at [44].

(8)    However the inference referred to in Yusuf is not mandatory. The manner in which a statement of reasons is drawn and its surrounding context may detract from or displace the inference; for example because there is material that is so obviously relevant that it is unthinkable that the Tribunal would not have referred to it if it had actually considered it: SZTMD at [19].

(9)    It is not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the relevant criteria and some contentions misconceived: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593 at [46] (French, Sackville and Hely JJ).

(10)    It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality: Applicant WAEE at [47].

(11)    It falls to the applicant to establish a basis for drawing the inference necessary to make out the alleged jurisdictional error: Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594 at [67] (Gummow J).

(12)    The reasons should not be scrutinised minutely and finely with an eye keenly attuned to the perception of error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272. A conclusion that the decision-maker has not engaged in an active intellectual process 'will not lightly be made and must be supported by clear evidence, bearing in mind that the judicial review applicants carry the onus of proof': Carrascalao at [48].

(13)    'Excluding obvious cases, the determination of whether the decision-maker has given active intellectual consideration to a representation will frequently be a matter of impression reached in light of all of the circumstances of the case. In this context, whether or not the reasons of the decision-maker fall "on the wrong side of the line", to quote Lafu at [49], will be a matter of inference to be drawn in particular from the manner in which the representation was advanced, and the structure, tone and content of the decision-maker's reasons': Navoto v Minister for Home Affairs [2019] FCAFC 135 at [89] (Middleton, Moshinsky and Anderson JJ).

(14)    Each case necessarily turns on its own particular facts and circumstances as established by the evidence: Minister for Home Affairs v Omar [2019] FCAFC 188; (2019) 373 ALR 569 at [36(e)].

21    References in the above extract to Direction 65 are to a previous iteration of Direction 79.

TRIBUNAL’S DECISION

22    The Tribunal’s reasons for decision run to 117 pages and were delivered on 24 December 2020, following pronouncement of the decision on 9 December 2020, the last day of the 84 day period required by s 500(6L)(c) of the Act. The Tribunal noted that having regard to the oral and written material before it, including expert evidence, that it was not possible to deliver suitably detailed written reasons between the end of the hearing on 4 December 2020 and the expiration of the relevant 84 day period on 9 December 2020. Thus, the Tribunal did not deliver its written reasons until 24 December 2020. The Tribunal’s approach in this regard was consistent with the principles outlined by the Full Court in Khalil v Minister for Home Affairs [2019] FCAFC 151; (2019) 271 FCR 326 at [41] (Logan, Steward and Jackson JJ).

23    The Tribunal began by setting out s 501CA(4) of the Act. The Tribunal then noted the observations of the Full Court (Besanko, Barker and Bromwich JJ) in Minister for Home Affairs v Buadromo [2018] FCAFC 151; (2018) 267 FCR 320 at [21]:

… there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word “may” in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view …

24    The latter view referred to in the Tribunal’s extract from Buadromo derives from the decision in Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166; (2016) 153 ALD 338 at [38] (North ACJ). The Tribunal’s approach accords with the recent decision of the Full Court in Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 172 at [27] (Burley, Colvin and Jackson JJ).

25    The Tribunal noted that there were two issues that the Tribunal had to consider. The first was with respect to the character test. The second was whether there was ‘another reason’ why Mr Ali’s visa should be revoked.

26    The Tribunal first confirmed that Mr Ali did not pass the character test by reason of his custodial sentence exceeding 12 months.

27    The Tribunal then moved to consider the determinative issue, whether there was another reason to revoke the original cancellation decision. In considering this question the Tribunal acknowledged that it was bound by s 499(2A) of the Act to apply Direction 79. The Tribunal listed the three primary considerations and the five other considerations set out in Part C of Direction 79, noting that the list of other considerations was non-exhaustive. The Tribunal specifically noted that paragraph 8.1 of Direction 79 provided that decision-makers must take into account the primary and other considerations relevant to the individual case. The Tribunal also noted and emphasised the importance of the other considerations being “other” and not secondary considerations, extracting at T[27] Colvin J’s observations to this effect in Suleiman v Minister for Immigration and Border Protection [2018] FCA 594; (2018) 74 AAR 545 at [23]. The Tribunal then summarised paragraph 6.3 of Direction 79 which sets out a number of principles that should inform a decision-maker’s consideration.

28    The Tribunal’s lengthy reasons, comprising T[23] – [293] are structured by reference to the primary and other considerations set out in Direction 79. Having regard to the scope of the grounds of review, I will set out in some detail the Tribunal’s reasons.

Primary Consideration A – Protection of the Australian Community

29    The Tribunal addressed Primary Consideration A – protection of the Australian community at T[30] – [203].

30    The Tribunal began by reiterating the principles to which it had to have regard in considering Primary Consideration A as set out in paragraph 13.1(1) and 13.1(2) of Direction 79. In doing so, the Tribunal acknowledged (at T[32]) that it was to determine the weight applicable to Primary Consideration A having regard to the nature and seriousness of the non-citizen’s conduct to date and the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

31    The Tribunal then analysed in detail the material before it against each of the factors in paragraph 13.1.1(1) (nature and seriousness of the conduct). In doing so, and with a careful analysis of Mr Ali’s individual circumstances, found that only some of the factors in 13.1.1(1)(a) to (i) were relevant. In respect of those individual factors which were relevant to Mr Ali’s application, the Tribunal reached a conclusion as to the weight to be allocated in respect of each such factor. The Tribunal noted that the chapeau of paragraph 13.1.1(1) specifically refers to “the nature and seriousness of the non-citizen’s criminal offending or other conduct” (Tribunal’s emphasis). In that regard, the Tribunal took into account Mr Ali’s conduct that led to the making of a protection order in January 2015 which required Mr Ali to be of good behaviour toward, and not commit domestic violence against, Ms Deng and also his traffic history. The Tribunal concluded at T[77] in respect of paragraph 13.1.1(1):

Having regard to the totality of the evidence to which the abovementioned relevant sub-paragraphs (a), (b), (d), (f) and the chapeau of paragraph 13.1.1(1) of the Direction are relevant, I am of the view that the Applicant’s offending conduct can be readily characterised as very serious.

32    The Tribunal then moved to consider the risk to the Australian community should Mr Ali commit further offences or engage in other serious conduct as required by paragraph 13.1.2(1) of Direction 79. The Tribunal approached this by first considering the nature of the harm to individuals or the Australian community should Mr Ali engage in such conduct (paragraph 13.1.2(1)(a)) and then considering the likelihood of Mr Ali re-offending (paragraph 13.1.2(1)(b)). The Tribunal found that the potential consequences flowing from further similar or identical offending by Mr Ali would be very serious, noting “there is a convincing inevitability that his offending will result in (to quote [the sentencing Judge]) very “… substantial … emotional, social, psychological and physical harm and adverse impacts as a consequence of [such] behaviour” ”. Having regard to its finding that the nature of the harm that may flow from any future offending by Mr Ali could involve “physical, psychological and/or financial harm – even to a catastrophic level”, the Tribunal concluded that any future risk of harm is unacceptable to the Australian community. In this respect, the Tribunal referred to Mr Ali’s own concessions in his statement of facts, issues and contentions (SFIC) which conceded that the “[Mr Ali]’s crimes, if repeated, would cause a victim and possibly her family, significant harm”. The Tribunal’s finding was made after the Tribunal considered the conclusions of Dr Yoxall (and to an extent Ms Jacks) that Mr Ali was at a low risk of re-offending.

33    The Tribunal concluded in relation to Primary Consideration A at T[202] – [203]:

[202]     I have had regard to the provisions of paragraphs 13.1.1 and 13.1.2 of the Direction and have also had regard to sub-paragraphs 6.3(2), (3) and (4). I find that (1) the nature of the Applicant’s offending conduct to date is very serious, and (2), having regard to the totality of the evidence in relation to the Applicant’s risk of recidivism, there is a convincing and sufficiently unresolved likelihood that he will engage in further very serious conduct if returned to the Australian community.

[203]     In consideration of all of the evidence and each of the relevant factors contained in the Direction, I find that Primary Consideration A weighs heavily in favour of non-revocation.

34    In making this finding, the Tribunal had regard to the totality of evidence including those of Mr Ali’s family members and expert witnesses.

35    The Tribunal made the following findings in relation to Mr Ali’s offending by reference to the Primary Consideration A - Protection of the Australian Community:

(1)    Having regard to paragraph 13.1.1(1)(a) of Direction 79 and the sentencing remarks in respect of the 5 April offences, the Tribunal considered that the offences committed by Mr Ali upon Ms Deng were of a serious and violent nature: T[38] – [41].The Tribunal noted at T[115] that Mr Ali’s assertion about provocative behaviour by Ms Deng causing his very violent “reaction” towards her and said:

[115] … His evidence about provocation by her was not at all convincing in circumstances where he was sentenced on the abundantly clear basis (as can be seen from [the sentencing judge]’s sentencing remarks) that there was absolutely no provocative conduct from her. If the Applicant now asserts provocative conduct from his ex-wife as being causative of his violent attack upon her, he finds himself in a minority of one. This is because no such provocative behaviour was found by the jury, nor the sentencing judge. This is what transpired during cross-examination on this point of now-claimed provocation:

“MR HAWKER: Well, when you say it was your actions and you take responsibility; you will have seen the sentencing judge’s remarks that there was no provocative behaviour from your ex-wife?

WITNESS: Sorry, there’s no provocative behaviour from my ex-wife?

MR HAWKER: Yes?

WITNESS: Yes, she slapped me and I became very angry at that time. I couldn’t - the first response came just to push her, push her really hard, that was my first response. I shouldn’t have done that.

MR HAWKER: So you’re saying that she slapped you and then it escalated from there; did it?

WITNESS: Yes, that’s when I pushed her, like, as soon as she slapped me I didn’t think anything else, it was instance response, I just pushed her with my action which I shouldn’t have done that. I’m really, really ashamed for doing that. I shouldn’t have done that.

MR HAWKER: You’d agree that this version that you’re giving to the tribunal is not reflected in the sentencing remarks?

WITNESS: Yes, I agree, yes.

MR HAWKER: And you’d agree that it could be viewed as you seeking to attribute blame to your ex-wife for what happened?

WITNESS: No, I don’t blame my wife at all for my actions. It was me. I was my actions that - I take responsibility, it was me and I don’t intend to blame my wife at all.

MR HAWKER: And you’ve spent the best part of the last half an hour minimising your involvement?

WITNESS: No, sir. I take responsibility that my action has caused her to get that injury. I’m not trying to minimise any actions. I have done that injury. I am the cause for her injury.

(2)    The Tribunal first noted that paragraph 13.1.1(1)(b) provides that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed: T[42]. The Tribunal then considered the circumstances of Mr Ali’s conduct, noting not only the sentencing judge’s remarks on sentence, the terms of the sentence in the context of a first conviction and the impact on the victim to conclude not only that Mr Ali’s offences against Ms Deng must in accordance with paragraph 13.1.1(1)(b) be viewed “very seriously” but that as part of the Tribunal’s consideration of its statutory task that this factor “certainly merits the allocation of a heavy level of weight”: T[46]. In making this finding, the Tribunal had regard to the physical and psychological effect of Mr Ali’s conduct on his former spouse: T[43]. Further, notwithstanding that paragraph 13.1.1(1)(b) requires that crimes of a violence nature against women and children are viewed seriously regardless of the sentence imposed, the Tribunal noted that the length of the custodial sentence given to Mr Ali was another factor supportive of a conclusion that Mr Ali’s conduct was indeed very serious: T[44].

Primary Consideration B - Best interests of minor children

36    Primary Consideration B – best interests of minor children - is addressed in the Tribunal’s reasons at T[204] – [253].

37    In respect of Primary Consideration B, being the best interests of interests of minor children affected by the decision, Mr Ali made submissions in relation to the detrimental effect the non-revocation of his visa cancellation would have on his six year old son, Child A, and his nieces and nephews (aged between 11 and 14 years) with whom he had close loving relationships.

38    The Tribunal noted that the Minister conceded that it would be open for it to find that it is in Child A’s best interests for the cancellation decision to be revoked but that less weight should be allocated to this consideration as a result of the application of the factors set out in paragraph 13.2(4) of Direction 79: T[225] – [226].

39    The Tribunal reviewed the evidence including the expert evidence and concluded that Mr Ali had a close personal relationship with each of the relevant children and that this consideration weighed moderately in favour of revocation of the visa cancellation: T[253]. In doing so, the Tribunal exposed its reasons for allocating weight to this consideration in the way that it did. The Tribunal emphasised that the moderate weight allocated to this factor did not “in any way” outweigh the heavy weight which the Tribunal allocated to Primary Consideration A.

Primary Consideration C – The Expectations of the Australian Community

40    Primary Consideration C – the expectations of the Australian community - is addressed in the Tribunal’s reasons at T[254] – [265].

41    The Tribunal first noted that in making its assessment of the weight to be allocated to Primary Consideration C, it was required by paragraph 13.3(1) of Direction 79 to consider whether Mr Ali has breached, or whether there is an unacceptable risk that he would breach, the trust of the Australian community.

42    The Tribunal then turned to consider the particular factual circumstances applicable to Mr Ali: T[255]. In doing so, the Tribunal canvassed the relevant authorities on the application of Primary Consideration C at T[256] – [261]. The Tribunal having noted expressly that (at T[261]) (footnotes omitted):

…

(b)    it is not for the Tribunal to determine for itself what such “expectations” are by reference to the Applicant’s circumstances or evidence about those expectations;

(c)    the Government’s views in relation to community expectations are contained within the Direction. The Minister is entitled to make statements as to what the Government thinks are the “expectations of the Australian community”, and the Tribunal should have due regard of those statements, if made;

(d)    in assessing the weight attributable to this Primary Consideration C, decision makers can have regard to the principles in paragraph 6.3 of the Direction, in particular, subparagraphs 6.3(5) and 6.3(7). The allocation of the weight attributable to this Primary Consideration is a matter for the decision maker.

    (emphasis in original)

43    The Tribunal then moved to its analysis of the allocation of weight in respect of this consideration (T[262] – [264]) concluding at T[265] that Primary Consideration C is of heavy weight in favour of affirming the visa cancellation.

Other Considerations

44    The Tribunal then moved to consider the other considerations listed in paragraph 14 of Direction 79 in so far as such considerations were relevant to Mr Ali’s circumstances.

45    As to Mr Ali’s strength and duration of ties to the Australian community, the Tribunal accepted that Mr Ali had made positive strides in his life in Australia, having made positive contributions via his employment and educational history: T[271]. The Tribunal also accepted that Mr Ali’s removal to Fiji would have a detrimental impact on his immediate and extended family members who resided in Australia: T[272]. Having regard to the totality of the evidence in relation to Mr Ali’s relationships with members of the Australian community, most particularly, his father and stepmother, the Tribunal found these factors weighed moderately in favour of revocation of the cancellation decision. The Tribunal nonetheless found these factors were outweighed by Primary Considerations A and C: T[278].

46    The Tribunal observed that Mr Ali’s submissions as to the impediments he would face if removed were generally directed to the loss of his relationship with Child A and that those submissions were more appropriately dealt with in the context of Primary Consideration B: T[286]. However, in oral submissions Mr Ali’s representatives submitted that Mr Ali may face economic hardship if returned to Fiji by reason of the impact of the COVID-19 pandemic in Fiji. The Tribunal accepted that whilst Mr Ali may face some difficulty in re-establishing himself in Fiji, this factor would present as only a short term hardship and would not preclude his resettlement: T[291]. The Tribunal had regard to Mr Ali’s strong employment and educational history (which included completion of a bachelor of information technology at Griffith University) and to Mr Ali’s own evidence in cross examination that if returned he would “survive”. Accordingly, the Tribunal weighed the extent of impediments if returned as moderately in favour of revocation: T[292].

Tribunal’s Conclusion

47    The Tribunal ultimately concluded that there was not another reason to revoke the cancellation of Mr Ali’s visa and that a holistic view of the considerations in Direction 79 favoured non-revocation: T[294] – T[295].

CONSIDERATION

Ground 1 – Application of Direction 79

48    Ground 1 is as follows:

The Tribunal erred in law insofar as the Tribunal proceeded upon the basis of “[t]he principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed”, and insofar as the Tribunal failed to give proper, genuine, and realistic consideration to the merits of the case and made its decision in accordance with a rule or policy without regard to the merits of the particular case.

49    Mr Ali advances an argument in three stages. First, he submits that the Tribunal erred in law by not giving proper, genuine, and realistic consideration to the merits of his case because it made its decision in accordance with the policy embodied in paragraphs 13.1.1(1)(b) and (d) of Direction 79 which required that the Tribunal view crimes of a violent nature against women or children very seriously, regardless of the sentence imposed. Secondly, Mr Ali submits that to the extent that paragraphs 13.1.1(1)(b) and (d) of Direction 79 required the Tribunal to proceed upon the basis that crimes of a violent nature against women or children are to viewed very seriously, regardless of the sentence imposed, it is invalid, and the Tribunal erred in law in following it. Thirdly, and relatedly, Mr Ali submits that the Tribunal further erred by following the decision in Stowers in which Yates J observed (at [45]):

[Direction 79] required the Tribunal to view the 2016 offences, and the 2011 offence against the respondent’s former partner, very seriously. I can only think that the words “very seriously” were chosen advisedly in drafting Direction 79. These words are not some flourish of the pen. There was no discretion reposed in the Tribunal to view the offences in some lesser or different light. But this is what the Tribunal did.

and (at [55]) that:

…In substance, the Tribunal supplanted para 13.1.1(1)(b) by reaching and applying its own evaluation of the seriousness of the respondent’s past offending in so far as it concerned crimes of a violent nature towards women and children.

In this context, Mr Ali submits that the decision in Stowers is plainly wrong and should not be followed, noting that the validity of Direction 79 appears not to have been argued before Yates J.

50    Finally, Mr Ali submits that the Tribunal’s error was material in that a correct understanding and application of the law could have resulted in a different decision.

51    The Minister contends that Direction 79 is not ultra vires s 499 of the Act and in any event, the alleged error (which the Minister denies) was not material because Mr Ali’s offending was in any event objectively very serious and that the Tribunal, following a detailed examination of the material before it, had no doubt that Mr Ali’s offending against Ms Deng was very serious.

52    For the reasons that follow, ground 1 must fail.

53    The starting point is to read the Tribunal’s reasons fairly and as a whole. A fair reading of the Tribunal’s reasons reveals that the Tribunal did give proper, genuine, and realistic consideration to the merits of the case. The Tribunal did not make its decision by inflexibly applying a rule or policy without regard to the merits of Mr Ali’s case.

54    A focal point of the Tribunal’s review of the delegate’s decision was to carefully evaluate the nature and seriousness of Mr Ali’s criminal offending. The evaluation of the nature and seriousness of Mr Ali’s offending was central to the Tribunal’s consideration of the factors in paragraph 13.1.1(1)(a), (b) and (d) of Direction 79. The Tribunal moved sequentially to consider each of these factors. In the circumstances of Mr Ali’s application, where there was no dispute that the relevant offences were both violent and also committed against a woman there was necessarily an overlap in the Tribunal’s consideration of the factors set out in paragraph 13.1.1(1)(a) and (b).

55    The Tribunal began by noting that Mr Ali’s criminal history was one of “relative brevity” and that he was not “a serial offender”. Further, that Mr Ali’s offending derived from “a singular – albeit very serious - episode of very violent offending towards his former spouse”: T[5]. The singular episode to which the Tribunal referred occurred on 5 April 2015. It was preceded by two other events which the Tribunal also took into account under the rubric of “other conduct” in paragraph 13.1.1(1) in Direction 79.

56    First, on 7 January 2015, the Queensland Magistrate’s Court made a protection order against Mr Ali following an incident between Mr Ali and Ms Deng, described in the application for the protection order as follows:

[Ms Deng] has picked up the child in her right arm and attempted to walk to the door to leave for the doctors [sic] appointment.

[Mr Ali] has gotten angry and grabbed [Ms Deng] by the arm quite hard and started to slap [Ms Deng] on the left and right side of the face. [Ms Deng] has attempted to defend herself and the child and held her left hand out, [Mr Ali] has grabbed [Ms Deng] and put both of his hands around [Ms Deng]’s throat squeezing hard.

[Ms Deng] has felt very scared for her life and called police on 000. [Ms Deng] was having trouble speaking to the 000 operator as her throat hurt from [Mr Ali] squeezing her neck.

57    Secondly, on 17 February 2015, Mr Ali breached the protection order in an incident that was witnessed by three others. In June 2019, following a guilty plea he was convicted of breaching the protection order based on the following police facts:

[Name A] who lives in the vicinity stated he was in his kitchen of his address when he heard yelling coming from the street. Witness [A] states he observed a male and female in the middle of the street. He states he observed the male grabbed the female’s ponytail. He states the female was attempting to run away from the male, he states the male grabbed it with such force that the female whole top of her body was falling backwards. Witness [A] states the female was holding her baby. The actions of the male had placed the baby in a precarious position that the witness believed that the female might drop the baby. The witness has yelled at his father to call the police. Witness [A] upon exiting his dwelling has observed a pregnant lady attempting to intervene with this fight. Police have since located this witness.

Witness [Name B] was the pregnant lady previously described by [A]. She states she was walking along Mountain Street proceeding towards Logan Road listening to headphones when she heard a female screaming. [B] states the scream sounded like the female was fearful. Upon turning around she states she observed the male wrestling a female in the middle of the street. She states the male was attempting to wrestle the phone off the female. She states she observed the male have a hand on the female’s arm and was attempting to aggressively push the female. She states she heard the female yell “Help me, help me, get him away”. She believes the male was disregarding the baby [sic] safety so she attempted to intervene.

Another neighbour [Name C] who resides in the vicinity to disturbance states he was watching TV in his house on Mountain Street when he has heard a female screaming. He states has run outside the front of the house to investigate further and has observed a male struggling with the female holding a baby in the middle of the street directly out in front of his house. He states he heard a female screaming “Help me”, “Get off me” numerous times. He states he saw the male reefing at the female’s hands attempting to grab a phone she was holding. Witness [C] has attempted intervene and yelled towards the male, “Let go”. Witness [C] states he was fearful for female and baby so he physically restrained the male so the male released his grip on the female. He states the female was distraught.

Other witnesses have taken custody of the child. The female has decamped from the scene. Upon the male calming down witnesses have returned the child to the male. The male some time has later left prior to a police arrival.

Police located this female from the incident and identified her as the aggrieved in the matter. The male was identified as the respondent in this matter. Police contacted the aggrieved who did not wish to formally provide a statement to police.

58    Thirdly, on 5 April 2015, shortly after breaching the protection order in February 2015, Mr Ali committed four violent offences against Ms Deng for which he received the prison sentence which triggered the cancellation of his visa. The offences of which Mr Ali was convicted included three counts of common assault (domestic violence) and one count of grievous bodily harm (domestic violence) under ss 320, 335 and 564(3A) of the Criminal Code Act 1899 (Qld).

59    The count of grievous bodily harm arose from Mr Ali punching Ms Deng on each side of her face and breaking her jaw. The Tribunal noted that the sentencing judge’s remarks revealed that Ms Deng was physically smaller than Mr Ali. The Tribunal further noted that Mr Ali had, for some hours, delayed taking Ms Deng for medical assistance and the only explanation for that was that he did not want the authorities to learn how she had been injured. Ms Deng required surgery to insert plates and screws into her jaw. After quoting extensively from the sentencing judge’s remarks and adding its own emphasis to parts of those remarks, in the context of its consideration of factor 13.1.1(1)(a), the Tribunal said (at T[38] – [41]):

[38]     It is plain from [the sentencing judge]’s sentencing remarks that the offences committed by the Applicant upon his former wife are of a serious and violent nature. This sub-paragraph (a) stipulates that “without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously”. I am hard-pressed to avoid a finding that the circumstances of the Applicant’s offending upon his former wife were indeed violent, regardless of whether the charges for which he was convicted ranged from common assault (in a domestic paradigm) to grievous bodily harm (also in a domestic paradigm). There can be no argument with the finding that his dreadful and cowardly offending upon a victim much smaller in physical stature than him, must surely be found to be very serious. This finding is consistent with the stipulation in this subparagraph (a) that such offending conduct is to be viewed “very seriously”.

[39]     It is difficult to find any directly causative external factor compelling the Applicant to have conducted himself in such a dangerous manner. At the time of the offending he was not intoxicated, nor was he under the influence of illicit substances. His propensity to offend appears to derive from a lack of self-control when he felt challenged in a domestic context. In the course of the sentencing remarks, there is a reference to [the sentencing judge] having been taken to comparative cases as a guide for the imposition of the extent of any head custodial term. Interestingly, one of the comparative cases involved provocative behaviour exhibited by a victim towards an offender. As noted by [the sentencing judge], no such provocative behaviour emanated towards this Applicant from his victim. Indeed, it appears the offending resulted from displeasure experienced by the Applicant about whether his victim had or had not done an amount of laundry:

“It has been submitted that a head sentence of two and a-half years would be appropriate in all of the circumstances of this matter. I’ve been referred to two cases in that regard. I don’t intend to go through those cases in any detail. But in my view, this matter calls for a sentence, to properly reflect all relevant considerations, of three years as a head sentence. The matter of Clarke, I note, resulted in a sentence of two and a-half years but it was after a plea of guilty. That is a significant consideration on sentence and there was some very provocative behaviour – not using that in the legal sense – on the part of the complainant in that matter that was absent here. Here you simply lost your temper, it would seem, over something as ridiculous as laundry not having been done. The matter of RAP, of course, involved a much less serious charge. One of assault occasioning bodily harm. Notwithstanding that a two year term of imprisonment was imposed after the entry of a timely plea of guilty.”

[40]    Thus, there cannot be said to be any externally imposed factor impacting upon the Applicant’s capacity to control himself during a moment of anger or frustration. His only explanation for his astonishing and very serious reaction, which saw him devolve into conduct amounting to very serious offending, is only to be found in his failure to control his own temper and propensity to lash out at a domestic spouse who, he felt, was frustrating him in the way he wanted things to be. It must have surely been clear to him that the relationship was in its “death throes” and that it was otherwise on the wane. He refused to accept his victim’s right to assert herself and her own status as his co-spouse in that scenario. If the laundry had not been done, the Applicant should have left well enough alone. Yet he failed to do so and his resulting conduct caused [the sentencing judge] to have little or no hesitation in imposing a head custodial term of just under three years.

[41]     I am of the view that an application of this sub-paragraph (a) strongly militates in favour of a finding that the Applicant’s violent conduct has been very serious.

60    Having concluded that Mr Ali’s violent conduct was “very serious” in the context of considering paragraph 13.1.1(1)(a) of Direction 79, the Tribunal then moved to consider factor 13.1.1(1)(b). It is the Tribunal’s consideration of paragraph 13.1.1(b) that is the subject of challenge in ground 1. A fundamental difficulty with Mr Ali’s argument is that he seeks to contort particular statements made by the Tribunal by divorcing those statements from both the immediate context in which they were made in addressing paragraph 13.1.1(1)(b) and also from the related context, namely the Tribunal’s earlier consideration of paragraph 13.1.1(1)(a). In order to illustrate why that is so, it is useful to have regard to the Tribunal’s reasoning in respect of paragraph 13.1.1(1)(b) at T[42] – [46] (which followed immediately on paragraph 13.1.1(1)(a) which is extracted above):

[42]     Sub-paragraph (b) of paragraph 13.1.1(1) of the Direction provides that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed.

[43]     The exercise of applying this sub-paragraph (b) to the instant factual matrix is, to my mind, rendered significantly more straightforward due to the words “regardless of the sentence imposed” appearing within it. It is clear that the draftsperson of Direction 79 intended for this Direction to readily facilitate a finding that violent offending towards women (or children) must be found to be “very serious”. In the instant case, the Applicant’s very violent conduct against his former wife resulting in necessary reconstructive surgical intervention is plain from the nature of those appalling injuries. As noted by [the sentencing judge], “The effect of this assault upon her has been substantial. She has suffered emotional, social, psychological and physical harm and adverse impacts as a consequence of your behaviour…” Little more need be said about the nature of the Applicant’s offending militating very strongly in favour of a finding than that his offending against the female person comprising his ex-wife has been very serious.

[44]     While the wording of sub-paragraph (b) refers to “regardless of the sentence imposed”, it is, to my mind, significant that as a first-time offender, [the sentencing judge] saw fit to impose an almost three year head custodial term on this Applicant. Therefore, while the sentence may not be of essential relevance to this sub-paragraph (b) (for the purpose of ascertaining allocable weight to it), the sentence imposed by [the sentencing judge] is nevertheless supportive of a finding that the Applicant’s conduct towards his ex-wife was, indeed, very serious.

[45]     There is authority for the proposition that the wording of this sub-paragraph (b) allows no discretion in the Tribunal to view the Applicant’s violent offences in anything other than a “very serious” light:

“45. That direction required the Tribunal to view the 2016 offences, and the 2011 offence against the respondent’s former partner, very seriously. I can only think that the words “very seriously” were chosen advisedly in drafting Direction 79. These words are not some flourish of the pen. There was no discretion reposed in the Tribunal to view the offences in some lesser or different light. But this is what the Tribunal did.”

[46]     I consequently find that an application of this sub-paragraph (b) to the circumstances of the Applicant’s conduct towards his former spouse on 5 April 2015 most certainly merits the allocation of a heavy level of weight in favour of a finding that his offending has been of a very serious nature.

61    Mr Ali seizes upon the opening sentences of T[43] and [46] to contend that the Tribunal has applied paragraph 13.1.1(1)(b) and (d) without giving proper, genuine and realistic consideration to the merits of Mr Ali’s case. In doing so, Mr Ali seeks to divorce those statements from the immediate context in which they were made in addressing paragraph 13.1.1(1)(b) and also from the necessarily related context that precedes these statements, namely the Tribunal’s consideration of paragraph 13.1.1(1)(a).

62    On a plain and fair reading of the whole relevant section, the Tribunal has both engaged in its own genuine and realistic assessment of the nature and seriousness of Mr Ali’s offending, and in effect, cross-checked its own assessment with the characterisation of the offending in paragraphs 13.1.1(1)(a) and (b). Had the Tribunal acted in the way Mr Ali contends, much of what is set out in its reasons would be entirely superfluous. An obvious example to illustrate that point is that if the Tribunal regarded itself as bound to regard Mr Ali’s offending against Ms Deng “very seriously, regardless of the sentence imposed”, it was not necessary for the Tribunal to engage in the detailed consideration of paragraph 13.1.1(1)(a) and the length of the head sentence that Mr Ali received as a first offender in the way that it did. A fair reading of the whole of the Tribunal’s reasons demonstrates that the Tribunal both engaged in a realistic and genuine way with the merits of Mr Ali’s case and had appropriate regard to the terms of Direction 79, in accordance with s 499(2A) of the Act. Mr Ali’s contention that the ministerial direction led the Tribunal to relieve itself of the burden of carrying out what it evidently saw as the significantly less straightforward task of determining the seriousness of Mr Ali’s offending for itself (i.e. on the merits) cannot be maintained. The Tribunal had already done just that in considering factor 13.1.1(1)(a), and did so again in considering paragraph 13.1.1(b).

63    For this reason alone, ground 1 must fail. For completeness, I will address the remaining two parts of the Mr Ali’s argument.

64    The second aspect of Mr Ali’s argument is that Direction 79 is ultra vires s 499 of the Act on the basis that, in Mr Ali’s contention, it requires the Tribunal to perform its review function under s 500 of the Act and s 43 of the Administrative Appeals Tribunal Act 1973 (Cth) in accordance with a rule or a policy embodied in Direction 79 and not by giving proper, genuine and realistic consideration to the merits of the case. For the reasons which follow I reject Mr Ali’s contention that those parts of Direction 79 which he seeks to impugn are ultra vires.

65    The Minister is authorised to give written directions to a body having functions or powers under the Act about the performance of those functions or the exercise of those powers: s 499 of the Act. The explanatory memorandum to the Migration Legislation Amendment Bill 1989 stated in relation to s 66DD (now s 499) that (at [209]):

This provision gives the Minister power to issue general policy directions to persons performing functions or exercising powers under the Act. This provision also ensures the Minister retains responsibility for general policy direction.

66    The Minister submits, and I accept, that there can be no real dispute that in requiring decision makers to consider that all domestic violence offending as “very serious” regardless of the sentence imposed, the Minister is addressing a significant social problem that is properly the focus of a general policy direction by government. Paragraph 13.1.1(1)(b) of Direction 79 is within the intended purpose of directions given under s 499 of the Act.

67    The assessment of whether there is another reason for revocation inherently involves a broad evaluation by the decision-maker. There is nothing unusual in this context for the Minister to identify behaviour that he or she considers, as a matter of policy, should be viewed “very seriously” as part of the broad evaluative task posed for the decision-maker. In Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; (2015) 258 CLR 173 at 194 [54] the plurality (French CJ, Bell, Keane and Gordon JJ) said in respect of policy guidelines (footnotes omitted):

Policy guidelines like the priorities policy promote values of consistency and rationality in decision-making, and the principle that administrative decision-makers should treat like cases alike. In particular, policies or guidelines may help to promote consistency in “high volume decision-making”, such as the determination of applications for Subclass 202 visas. Thus in Drake v Minister for Immigration and Ethnic Affairs [No 2] , Brennan J, as President of the Administrative Appeals Tribunal, said that “[n]ot only is it lawful for the Minister to form a guiding policy; its promulgation is desirable” because the adoption of a guiding policy serves, among other things, to assure the integrity of administrative decision-making by “diminishing the importance of individual predilection” and “the inconsistencies which might otherwise appear in a series of decisions”…

68    Fundamentally, and fatally to Mr Ali’s submissions on this ground, the direction about domestic violence offending does not dictate the outcome of the ultimate decision to be made with respect to his visa under section 501CA(4) of the Act. As Stewart J explained in FYBR v Minister for Home Affairs [2019] FCAFC 185; (2019) 272 FCR 454 in the context of the government’s “deeming” of community expectations in clause 11.3 of Direction 65 (the predecessor of Direction 79 which was largely in identical terms) (at 475 [90]):

However, it is not to be expected that the Government of the day would seek, via the device of “community expectations” or otherwise, to dictate to the statutory decision-maker the outcome of a visa refusal or cancellation in any particular case. That would be inimical to the process of decision-making that has been set up under the Migration Act and it would constitute unlawful dictation to the decision-maker: Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 590-591 per Bowen CJ and Deane J; Bread Manufacturers of NSW v Evans [1981] HCA 69; 180 CLR 404 at 429-430 per Mason and Wilson JJ; CPCF v Minister for Immigration and Border Protection [2015] HCA 1; 255 CLR 514 at [37] per French CJ and [292] per Kiefel J.

69    In Re Drake and the Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 644 – 646:

…Where a discretionary power guided by an administrative policy is exposed to review by this Tribunal, however, the powers with which this Tribunal is vested by s 43 of the Administrative Appeals Tribunal Act 1975 are wide enough to permit the sterilization or amendment of policy in its application to the cases which come here. Although the Tribunal ought not, indeed cannot, deprive itself of its freedom to give no weight to a Minister’s policy in a particular case, there are substantial reasons which favour only cautious and sparing departures from Ministerial policy, particularly if parliament has in fact scrutinized and approved that policy.

If the Tribunal, in reviewing a decision made in pursuit of a lawful administrative policy, consciously departed from that policy, it would nullify not only the policy made by the repository of the discretionary power, but also any mechanism of surveillance which the relevant statute permits or provides. To depart from ministerial policy thus denies to parliament its ability to supervise the content of the policy guiding the discretion which parliament created. On some occasions, reasons may be shown to warrant departure from ministerial policy; for example, where the intervention of new circumstances has clearly made a policy statement obsolete.

But in general, it would be manifestly imprudent for the Tribunal to override a ministerial policy and to adopt a general administrative policy of its own… If consistency in decision-making is sought, as it ought to be, the standards and values which a Minister expresses in a statement of lawful policy can be a constant reference point for each of the presidential members of the Tribunal in exercising the discretion in particular cases. Ministerial policy can be an aid to consistency among Tribunal decisions, and to consistency between the decisions of the Tribunal and those of the Minister. Decisions made under a statutory power and reviewed by the Tribunal are but a proportion of the decisions made under that power, and it would be a regrettable anomaly if the decisions which were not reviewed revealed different standards and values from those made on review…To apply the policy does not determine the decision...

See also, NEAT Domestic Trading Pty Ltd v AWB Ltd [2003] HCA 35; (2003) 216 CLR 277 at 286 – 287 [17] (Gleeson CJ); Seiffert v Prisoners Review Board [2011] WASCA 148 at [123] – [125] (Martin CJ with whom McLure P and Murphy JA generally agreed at [202] and [219] respectively); R v Secretary of State for the Home Department; Ex parte Venables [1998] AC 407 at 496 – 497 (Lord Browne-Wilkinson).

70    Critically, while the Tribunal is required by the Direction 79 to treat offending of the type identified as “very serious” it remains for the Tribunal to allocate weight in respect of such offending relative to all other relevant considerations when it comes to assess whether there is another reason for revocation of the visa cancellation under s 501CA(4)(b)(ii) of the Act. Those aspects of Direction 79 which Mr Ali seeks to impugn do not impermissibly restrict the decision-maker’s task of evaluating and weighing all relevant factors in order to determine as a matter of discretion whether there is another reason to revoke the cancelation of the visa. That may be illustrated by reference to the language of paragraph 13.1.1(1). The chapeau to paragraph 13.1.1(1) provides that:

In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision makers must have regard to factors including….

71    The expression of the chapeau to paragraph 13.1.1(1) is not so rigid as to exclude consideration of the merits of the particular case. The factors listed in paragraph 13.1.1(1) do not comprise an exhaustive list. The breadth of the language in the chapeau permits the decision-maker to arrive at a conclusion in respect of whether or not there is another reason to revoke a visa cancellation based on the particular circumstances of an individual application when viewed holistically after taking into account the policy factors set out in paragraph 13.1.1(1)(a) to (i) so far as those factors are relevant to the individual circumstances.

72    Clause 13.1.1(1)(b) of Direction 79 does not unduly fetter the decision-maker’s discretion. The decision-maker’s task under s 501CA(4)(b)(ii) of the Act is inherently evaluative and it is proper for the Minister to identify offences that he or she considers, as a matter of policy, are to be objectively regarded very seriously regardless of sentence.

73    The third aspect of Mr Ali’s argument on ground 1 is his attack on the Tribunal’s reliance on the decision in Stowers. The review in Stowers was concerned with a decision of the Tribunal in which, notwithstanding the requirement under s 499(2A) of the Act that it follow Direction 79 when exercising its discretion to determine whether to revoke a cancellation decision, the Tribunal did not follow the direction given in paragraph 13.1.1(1)(b). Instead, the Tribunal qualified the objective seriousness of the non-citizen’s offences in so far as they concerned violence against women and children by attributing to them lesser significance than permitted by paragraph 13.1.1(1)(b): Stowers at [48]. The Tribunal did this by, for example, relying on psychologists’ reports that were in evidence. Justice Yates observed (at [48]) that he did,

not doubt that the psychologists’ reports contained information that was relevant to the exercise of the Tribunal’s discretion. But the psychologists could not comment on, and did not purport to comment on, the degree of objective seriousness of the respondent’s offending.

74    The Tribunal’s error was compounded by then considering the actual sentences imposed on the non-citizen as another means of revisiting the objective seriousness of the offences. To do so was contrary to the express terms of paragraph 13.1.1(1)(b) which required a decision-maker to view crimes of a violent nature against women and children very seriously, regardless of the sentence imposed: Stowers at [50]. It is in that context that the observations of Yates J, extracted at [49] above, were made. I do not accept Mr Ali’s submission that the Tribunal erred in relying on Stowers in the way that it did. Read fairly, the Tribunal did no more than to accord the level of objective seriousness to Mr Ali’s offences as it was required to in complying with Direction 79 in accordance with s 499(2A) of the Act. I have already noted that in doing so, the Tribunal was not deflected from giving proper, genuine and realistic consideration to Mr Ali’s case.

75    Finally, and again for completeness, if I am wrong in respect of the error of law that is the subject of ground 1, then I am not satisfied that the error was material. Based upon the analysis at [55] to [62] above, the Tribunal was correct to conclude that Mr Ali’s offending against Ms Deng was very serious based on its detailed assessment of the materials. The Tribunal had regard to Mr Ali’s explanations for his conduct and the lack of any directly causative external factor, and Mr Ali’s own concession that his offending against Ms Deng was “very serious” to conclude that his conduct was very serious.

76    For these reasons, Ground 1 fails.

Ground 2 – Failure to take into account significant evidence

77    Ground 2 is as follows:

The Tribunal failed to observe the requirements of procedural fairness insofar as the Tribunal did not consider significant evidence that was important to [Mr Ali]’s case, and the Tribunal’s decision was legally unreasonable.

78    The evidence which Mr Ali contends was not considered is a document which was before the Tribunal and which Mr Ali describes as a statement signed by his former spouse. Mr Ali’s evidence is that the document was apparently produced by Ms Deng in the context of seeking to vary the protection order against Mr Ali. Mr Ali contends that the document provides clear evidence of provocation by Ms Deng in respect of his domestic violence and that in failing to refer to it in its reasons, the Tribunal wholly overlooked cogent evidence capable of supporting Mr Ali’s case for revocation.

79    Ground 2 can disposed of in short compass.

80    First, it is not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the relevant criteria and some contentions misconceived: Applicant WAEE at [46] (French, Sackville and Hely JJ). It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality: Applicant WAEE at [47].

81    Secondly, the authenticity of the purported statement of Ms Deng and the veracity of its contents, if authentic, were both questionable. There was evidence which undermined the reliability of the document and/or its contents which included a previous instance in which Mr Ali had asked Ms Deng to lie about his violence towards her, the remarks of the sentencing judge and also Mr Ali’s own evidence before the Tribunal.

82    In addition, the content of the document comprises a vague and bare assertion and, even if accepted as a true statement of Ms Deng’s state of mind, it would not affect the objective seriousness of the domestic violence offences of which Mr Ali was convicted. Similarly, I do not accept that the document would affect the Tribunal’s evaluation of whether there was another reason to revoke Mr Ali’s visa cancellation in circumstances where the Tribunal expressly considered and rejected provocation by Ms Deng being in any way causal or exculpatory of Mr Ali’s conduct: see T[115] extracted at [35] above.

83    I do not infer that the absence of an express reference to this document in the Tribunal’s reasons was because the Tribunal overlooked it or failed to consider it. The more compelling inference is that the document was of such doubtful provenance, its contents so questionable in terms of veracity and, if true, of such peripheral relevance, that the Tribunal did not refer to it expressly because it was not necessary to do so and because it was subsumed into the more general finding in respect of provocation that the Tribunal made.

84    For these reasons, ground 2 must be dismissed.

Ground 3 – Failure to observe requirements of procedural fairness

85    Ground 3 is as follows:

The Tribunal failed to observe the requirements of procedural fairness insofar as the Tribunal informed [Mr Ali]’s legal representative during closing submissions that the Tribunal would proceed upon a particular basis favourable to [Mr Ali] and then departed from that representation without fair notice to [Mr Ali].

86    By ground 3, Mr Ali seeks to argue that the Tribunal failed to observe the requirements of procedural fairness in so far as it informed Mr Ali that it was “safe to conclude” that certain matters would be determined favourably to him, and then submits that the Tribunal changed its course without fair notice to him. Mr Ali points to the following exchange during oral closing submissions:

MS WHITE: Putting all this together, then - - -

SENIOR MEMBER: I don’t think there’s any doubt, Ms White, that were your client to approach, or re-enliven Family Court proceedings … I think it’s safe to conclude that there are more than good prospects that your client is going to get, at least, some measure of parenting orders, or a parenting plan, duly ordered by the Federal Circuit Court, I think it’s going to be, in relation to [Child A]. I don’t think there’s any question about that.

MS WHITE: Thank you, Senior Member. Can I perhaps add one further point to that? Which is that, if it is, of course, the case that [Mr Ali] is able to secure access to [Child A] through such orders, that of course, makes relevant the possibility that his partner visa, temporary partner visa, which has been cancelled, if it is restored to him, that is a basis upon which he could then graduate to having permanent partner visa. That is one of the exceptions to the relationship being ongoing.

SENIOR MEMBER: M'mm hmm.

MS WHITE: So I would just say that is relevant for one more aspect. But given those conclusions that you've drawn, Senior Member, I'm happy to proceed now to expectations of the community. Unless there's anything further I can assist with on that.

SENIOR MEMBER: No, that’s all right. That’s all right. Thank you.

87    Mr Ali submits that given the favourable indication made by the Tribunal, Mr Ali’s legal representative concluded her submissions on that issue. He contends that the Tribunal did not abide by the indication it had given and refers to various passages of the Tribunal’s reasons by which Mr Ali argues the Tribunal made adverse findings against him on the relevant issue. Mr Ali argues that no fair opportunity was given to him to be heard in relation to the findings made by the Tribunal or that change in the Tribunal’s approach to the relevant issue. In this way, Mr Ali contends that the Tribunal failed to observe the requirements of procedural fairness and that had the favourable indication not been given, his legal representative would have continued to address on the issue of the best interests of Child A rather than proceeding to her submissions on the expectations of the community.

88    This ground of review cannot be sustained for three reasons.

89    First, the Tribunal did in fact take Mr Ali’s prospects of obtaining some level of parenting orders in the future as in Mr Ali’s favour when it found that it was in Child A’s best interests for the cancellation decision to be revoked: T[232], T[234], T[237], T[242], T[245], T[248] and T[253].

90    Secondly, the alleged failure to afford procedural fairness by permitting Mr Ali’s legal representative to continue to submit on the best interest of the child is not likely to have been material to the outcome of the Tribunal’s decision in the requisite sense. The exchange in the Tribunal which is the subject of ground 3 occurred during final submissions after the close of evidence. Whatever the Tribunal said, it could not deter Mr Ali from calling relevant evidence because the evidence had already closed. Further, the transcript suggests that Mr Ali’s legal representative’s submissions were complete. The Tribunal’s conclusion at T[248] of its reasons, that Mr Ali can “reasonably be expected to play some measure of a parenting role” in Child A’s life and that this ought to be given moderate weight in favour of revocation in the balance, accords with the submissions made on behalf of Mr Ali in any event.

91    Thirdly, Mr Ali’s criticisms of the Tribunal’s inability to be satisfied as to the precise type of parenting contact Mr Ali might have in the future are unfounded. It was open to the Tribunal to make an assessment of the evidence and submissions made in respect of Mr Ali’s future involvement in Child A’s life. In any event, on any view, the exact outcome of the parenting orders application was necessarily uncertain, particularly in the absence of knowing what evidence may be called by Ms Deng. Accordingly, the suggestion that Mr Ali could have made further relevant submissions about its precise outcome such that he lost an opportunity of a different outcome cannot be sustained.

Ground 4 – Failure to take into account evidence of impediments arising due to the COVID-19 pandemic

92    Ground 4 is as follows:

The Tribunal constructively failed to conduct the review required by s 500 of the Migration Act and ss 25 and 43 of the Administrative Appeals Tribunal Act 1975 (Cth) insofar as the Tribunal failed to take account of [Mr Ali]’s substantial and clearly articulated argument with respect to the “unprecedented levels of unemployment” in Fiji due to COVID-19, and failed to take account of cogent evidence providing substantial support for that argument.

93    Ground 4 concerns an alleged failure by the Tribunal to take into account arguments and evidence with respect to mass unemployment in Fiji caused by the COVID-19 pandemic and the associated impediments that Mr Ali would face if he were to be removed to Fiji in the then climate.

94    The arguments advanced by Mr Ali on this issue were set out in Mr Ali’s SFIC as follows:

88.     There is also the matter of the economic hardship occasioned by the COVID-19 pandemic. This has generated unprecedented levels of unemployment in all affected countries. Some forecasting estimates stated that as many as 100,000 people have been rendered unemployed in Fiji as a result of the pandemic. This makes competing for work more difficult than it otherwise would be, and there is no suggestion that the effects of the depression will be reversed any time in the foreseeable future.

89. As noted above, [Mr Ali] has no financial means at his disposal to start his life afresh in Fiji. Nor does he have any networks or contacts to support his entry to the labour force. On the other hand, while the Australian economy has also been affected by the pandemic, [Mr Ali] has a live offer of employment with his brother’s business.

90.     On balance, we submit it should be concluded that there would be some disadvantage and impediment suffered by him if he is returned to Fiji on the basis of his lack of family connections and the uncertainty of whether he would gain employment. … We submit this consideration weighs moderately in favour of revocation.

95    Mr Ali also points to an ABC News report from 1 June 2020 with the headline “Fijians turns to bartering system as coronavirus shutdowns cause mass unemployment” which was included in the materials before the Tribunal and which he submits the Tribunal failed to consider.

96    Mr Ali submits that the Tribunal did not refer at all to Mr Ali’s argument with respect to the unprecedented levels of unemployment in Fiji caused by the COVID-19 pandemic, or to the evidence advanced in support of it. Instead, he submits that the Tribunal simply referred to Mr Ali’s “employment history in Australia” and found that “Mr Ali would be able to find similar work in either the air conditioning or information technology fields upon his return to Fiji”. It is Mr Ali’s contention that the Tribunal was required to bring some active intellectual consideration to bear upon those matters and that it failed to do so.

97    Mr Ali submits, and I accept, that an administrative tribunal conducting a review would fail to perform its duty of review if it failed to take account of cogent evidence providing substantial support to Mr Ali’s case: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 at 436 [13] (Bell, Gageler and Keane JJ), 463 [105] (Nettle and Gordon JJ), citing Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088 at 1092 [24]-[25]; 197 ALR 389 at 394 (Gummow and Callinan JJ with whom Hayne J agreed at [95]). I also accept Mr Ali’s submission that it is an error for a tribunal to fail to take into account a substantial and clearly articulated argument advanced by an applicant in support of its case: Dranichnikov at [25], [95], applied in Plaintiff M61/2010E v Commonwealth [2010] HCA 41; (2010) 243 CLR 319 at [90] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ). However, I do not accept that the Tribunal erred in the manner contended by Mr Ali in ground 4.

98    In considering the extent of impediments Mr Ali may face if removed to Fiji, the Tribunal had regard to Mr Ali’s educational and employment history. The Tribunal referred to Mr Ali’s own evidence in cross-examination (given in the context of his establishing himself in Fiji) that he “will survive” if he is returned: T[289]. The Tribunal accepted that evidence and proceeded to conclude (at T[290] – [292]):

290. As referred to earlier, Mr Ali has a strong educational and employment history in Australia. There is little evidence in the material to cavil with the contention that Mr Ali would be able to find similar work in either the air conditioning or information technology fields upon his return to Fiji.

291. Accordingly, while I accept Mr Ali may face some difficulty in re-establishing himself in Fiji, this factor would present as a short-term hardship and would not preclude his successful resettlement there.

292. Having regard to the totality of the evidence, I am thus of the view that this Other Consideration (e) is of moderate weight to the determination of this application.

99    Whilst the Tribunal did not make express reference to the submission made in respect of the impact of the COVID-19 pandemic, it is apparent from its dealing with the relevant topic in the way that it did, that it did not overlook the submission and the material, such that it was, relied on in support of it but concluded that there was “little evidence in the material to cavil with the contention that Mr Ali would be able to find similar work in either the air conditioning or information technology fields upon his return to Fiji”: T[290]. Accordingly, the Tribunal was confident about Mr Ali’s ability to re-establish himself in Fiji due to his strong educational and employment history in Australia, even though he would face some short-term hardship. Mr Ali conceded as much during his cross-examination when he said in the context of being returned to Fiji that he would survive.

100    In the circumstances, I do not infer that Mr Ali’s submissions about the relevance of the COVID-19 pandemic to his employment prospects in Fiji and thus to the impediments that he would face if returned were overlooked by the Tribunal. In any event, the Tribunal afforded moderate weight to this consideration in favour of revocation and that was in accordance with the submission made by the applicant. Ground 4 fails.

CONCLUSION

101    For these reasons, the review application is dismissed with costs.

Associate:

Dated:    3 March 2022