Federal Court of Australia

Guttridge v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 229

ORDERS

THE COURT ORDERS THAT:

1.    The decision made by the Administrative Appeals Tribunal on 5 July 2021 be set aside.

2.    The matter be remitted to the Administrative Appeals Tribunal to be heard and determined according to law.

3.    The first respondent pay the applicant's costs of the application.

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

REASONS FOR JUDGMENT

COLVIN J:

1    Mr Michael Guttridge is a citizen of the United Kingdom. He came to Australia when he was almost two years old and has lived here ever since. Until recently he was the holder by operation of statute of a permanent visa which permitted him to reside in Australia. In 2020, Mr Guttridge was sentenced to a term of imprisonment of 32 months for possession of unlicensed firearms and possession of methylamphetamine with intent to sell or supply. In consequence, a decision to cancel his visa was required to be made under s 501(3A) of the Migration Act 1958 (Cth). In accordance with the terms of s 501CA, Mr Guttridge was then given the opportunity to make representations to the Minister seeking the revocation of the cancellation of his visa. He did so. A delegate of the Minister decided not to revoke the visa cancellation.

2    Mr Guttridge then sought merits review in the Administrative Appeals Tribunal as provided for in the Migration Act. In conducting its review the Tribunal was required to apply the terms of a direction made by the Minister on 8 March 2021 being Direction No 90: Visa Refusal and Cancellation under Section 501 and Revocation of Mandatory Cancellation under Section 501CA (Direction 90). The Tribunal affirmed the decision not to revoke the visa cancellation.

3    Mr Guttridge now seeks judicial review in this Court on the basis of alleged jurisdictional error by the Tribunal. He advances two grounds of review.

4    By the first ground he says that the Tribunal failed to give proper, genuine and realistic consideration to what was in the best interests of his twin sons. By the second ground he says that the Tribunal failed to carry out its statutory task in that it failed to assess the impact that its decision would have on the boys' mother, especially the risk of physical harm that she faced from one of the boys if Mr Guttridge was removed from Australia and unable to assist in his care.

5    Mr Guttridge's twin sons have both been diagnosed with severe autism, sensory disorders and global development delay. At the time of the Tribunal's decision they were 15 years old. One (referred to by the Tribunal as M1) is non-verbal. The other (referred to by the Tribunal as M2) has limited verbal skills. M1 has also been diagnosed with gigantism which is a matter that has significance for certain parts of the evidence before the Tribunal that concerned difficulties faced by his mother in controlling his physical behaviour. Both boys are dependent upon others for their day to day care and are not expected to be able to live independently as adults.

6    The Minister disputes the claims that there were errors of the kind alleged. In the alternative, the Minister submits that any failure to perform the statutory task was not a material failure because the reasoning process adopted by the Tribunal as to the merits demonstrated that there was no realistic prospect of a different outcome.

Outcome

7    For the following reasons, there was a material failure by the Tribunal to give the requisite degree of consideration to the best interests of the two boys and ground one is established. Ground two is not established. It follows that the application for review should be upheld and the matter remitted to the Tribunal for determination according to law. The Minister accepts that costs should follow the event and there should be an order for costs in favour of the applicant.

The relevant statutory power and Direction 90

8    A person who has been sentenced to a term of imprisonment of 12 months or more fails the character test specified in s 501(6) of the Migration Act. The Minister must cancel the visa of a person who does not pass the character test for that reason and is serving a sentence of imprisonment on a full time basis in a custodial institution: s 501(3A). However, s 501CA(3) then imposes an obligation upon the Minister to give the person concerned notice of the cancellation and invite the person to make representations to the Minister about revocation of the original decision to cancel the visa. If a person makes such representations then the Minister is empowered to revoke the original decision if the Minister is satisfied that the person passes the character test or 'that there is another reason why the original decision should be revoked': s 501CA(4). As to whether the Minister if is so satisfied must revoke the original decision see the views expressed in Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 125 at [3]-[6] (Katzmann J), [51] (Derrington J) and [100] (O'Bryan J).

9    There are reasons other than serving the specified term of imprisonment why a person may fail the character test. Therefore, even if for some reason the Minister is satisfied that the precondition to the cancellation is not met, the Minister must still form a view as to whether the person fails some other aspect of the character test. This aspect indicates that the cancellation decision under s 501(3A) serves as a form of gateway. It is activated solely by a person being in custody serving a sentence of imprisonment for 12 months or more or for a conviction for a sexually-based offence. It is by the means of the subsequent mandatory process that allows for the making of representations to the Minister that all aspects of the character test and the question whether there is another reason why the cancellation should be revoked is considered for the first time. Given the basis upon which s 501(3A) is activated, it is usual in cases like the present case for any representations to the Minister to focus upon whether there is 'another reason' to revoke the cancellation.

10    Section 499 of the Migration Act provides that the Minister may give written directions to a person or body exercising powers or functions under the Act and the person or body must comply with that direction. Direction 90 has been made by reference to s 499. The contents of Direction 90 specify primary and other considerations. The direction requires that decision makers 'must take into account the primary and other considerations relevant to the individual case' (para 5.2(5)). It specifies four primary considerations one of which is 'the best interests of minor children in Australia' (para 8). Direction 90 goes on to specify eight factors that 'must be considered where relevant' in considering the best interests of each child (para 8.3(4)). One of those factors of particular significance in the present case is specified in para 8.3(4)(d). It is expressed in the following terms:

the likely effect that any separation from the non-citizen would have on the child, taking into account the child's or the non-citizen's ability to maintain contact in other ways.

11    It may be noted that this factor (like other factors in para 8.3(4)) is expressed from the perspective of the child. So, even though it will be the person seeking to have his visa cancelled who will be advancing the representations, the terms of Direction 90 require consideration of matters from the perspective of the child rather than the parent. It requires the decision-maker (in the present case the Tribunal) to engage with its evaluative task from the perspective of the child and consider the likely effect upon the child of any separation that would result if the visa cancellation was not revoked. Indeed, the Tribunal's obligation to conduct its review having regard to the interests of any children may require it to make an obvious inquiry about a critical fact not addressed in the representations made by the parent: Uelese v Minister for Immigration and Border Protection [2015] HCA 15; 256 CLR 203 at [68].

12    In the present case, the Tribunal accepted that separation would be the necessary consequence if the visa cancellation was not revoked. As has been noted, consideration required the Tribunal to ascertain the factual matters that were necessary in order to undertake a consideration of the best interests of the children including the factor of the likely effect of separation of the person whose visa had been revoked from the child and then weigh the interests of the child with other representations to form the required state of satisfaction.

13    It was ultimately a matter for the Tribunal as to whether to give any weight to the interests of the children and the extent of that weight. However, that did not mean that it was free to simply put such matters to one side without any real deliberation as to what facts should be accepted and as to their possible significance. For reasons explained below, the Tribunal does not perform the deliberative task that it is required to undertake unless it engages with the representations concerning the interests of the children (and the material advanced to support them) in a meaningful way, makes findings about relevant factual matters and forms the required state of satisfaction only after having done so.

Review for insufficiency in deliberation by a statutory decision maker

14    In order to demonstrate jurisdictional error, it must be shown that the decision that has been made lacks the characteristics necessary for it to be given force and effect by the statute. It must be a decision of a kind that the Tribunal was not authorised by the statute to make: see Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123 at [24]-[25] (Kiefel CJ, Gageler and Keane JJ).

15    A claim that a statutory decision-maker has not given proper, genuine and realistic consideration to a particular matter is a contention that the nature and extent of deliberation undertaken by the Tribunal in respect of the matter was insufficient. There is no general rule as to the nature and extent of the deliberation that is required by a statutory decision maker in order to make a valid decision. In each case it is necessary to pay close attention to the statutory provisions to discern what they require concerning the characteristics of the deliberation that must be undertaken in order for the decision to conform to the particular statute.

16    In Minister for Home Affairs v Omar [2019] FCAFC 188; (2019) 272 FCR 589 a five member Full Court (Allsop CJ, Bromberg, Robertson, Griffiths and Perry JJ) dealt with the circumstances in which a failure to consider matters raised by a person under s 501CA as a reason for revoking a visa cancellation may amount to jurisdictional error. In the course of so doing, the Court set out what was required to perform the statutory task of considering a significant representation that was advanced concerning a matter that the decision-maker was required by the terms of a direction under s 499 of the Migration Act to consider. The Court described what was required as meaningful consideration. At [39], their Honours said:

Giving meaningful consideration to a clearly articulated and substantial or significant representation…requires more than the [decision-maker] simply acknowledging or noting that the representations have been made. Depending on the nature and content of the representations, the [decision-maker] may be required to make specific findings of fact…by reference to relevant parts of the representations in order that this important statutory decision-making process is carried out according to law.

17    Therefore, where a significant representation depends upon material advanced to establish the basis for the representation, the decision-maker must make specific findings about what to accept in order to consider the representation. Earlier in its reasons, the Court in Omar had emphasised the observations of Kiefel J (when the Chief Justice was a member of this Court) in Tickner v Chapman [1995] FCAFC 1726; (1995) 57 FCR 451 at 495, where her Honour said (in a different legislative context):

To 'consider' is a word having a definite meaning in the judicial context. The intellectual process preceding the decision of which s 10(1)(c) speaks is not different. It requires that the Minister have regard to what is said in the representations, to bring his mind to bear upon the facts stated in them and the arguments or opinions put forward and to appreciate who is making them. From that point the Minister might sift them, attributing whatever weight or persuasive quality is thought appropriate. However, the Minister is required to know what they say. A mere summary of them cannot suffice for this purpose, for the Minister would not then be considering the representations, but someone else's view of them, and the legislation has required him to form his own view upon them.

18    The Court in Omar also referred to the reasons of Burchett J in Tickner v Chapman at 476:

What is it to 'consider' material such as a report or representations? In my opinion, the Minister is required to apply his own mind to the issues raised by these documents. To do that, he must obtain an understanding of the facts and circumstances set out in them, and of the contentions they urge based on those facts and circumstances. Although he cannot delegate his function and duty under s 10, he can be assisted in ascertaining the facts and contentions contained in the material. But he must ascertain them. He cannot simply rely on an assessment of their worth made by others... It is his task to evaluate them, a task he can only perform after he knows what they actually are.

19    Tickner v Chapman was a case concerned with a statutory obligation imposed upon a Minister to consider a report and any representations attached to the report. The Minister's task was not exercised by delegation. In those circumstances, there was a particular focus upon the extent to which the Minister could rely upon departmental assistance in performing the statutory task. The reasons emphasised the need for the Minister personally to form his own view on the facts (Kiefel J) and to ascertain and evaluate the facts and contentions in the material (Burchett J).

20    Of course, care must be taken in applying these statements concerning a different statutory power to the particular task to be undertaken under s 501CA. Recently, in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41 the High Court considered the nature and extent of the fact finding obligation that falls upon the Minister when making a personal decision under s 501CA. In their joint reasons, Keane, Gordon, Edelman, Steward and Gleeson JJ said of the statutory scheme mandated by s 501CA that it:

…necessarily requires the Minister to consider and understand the representations received. What is 'another reason' is a matter for the Minister. Under this scheme, Parliament has not, in any way, mandated or prescribed the reasons which might justify revocation, or not, of a cancellation decision in a given case. It follows that there may be few mandatorily relevant matters that the Minister must consider in applying s 501CA(4)(b)(ii). Thus, the Minister is not obliged to take account of any non‑refoulement obligations, as expressed in the Act or otherwise, when determining whether there is another reason to revoke a cancellation decision where the materials 'do not include, or the circumstances do not suggest, a non-refoulement claim'. The power must otherwise be exercised reasonably and in good faith.

(footnotes omitted).

21    Their honours continued at [14]-[15]:

No part of the statutory power conferred by s 501CA of the Act obliges the Minister to make actual findings of fact as an adjudication of all material claims made by an applicant. Based upon the representations made by an applicant, the cancellation decision and the 'relevant information' given to the applicant pursuant to s 501CA(3)(a), the Minister must, when the Minister is not satisfied that an applicant passes the character test, then determine relevantly whether to be satisfied that there is 'another reason' why the cancellation decision should be revoked. Deciding whether or not to be satisfied that 'another reason' exists might be the product of necessary fact finding, or the product of making predictions about the future, or it might be about assessments or characterisation of an applicant's past offending.

If the representations made lack any substance altogether, then this of itself might justify a decision not to be satisfied that 'another reason' exists to revoke the cancellation decision, without any need to make any findings of fact about the various claims made. Moreover, some of the topics that might be traversed might not lend themselves to be addressed by way of evidence. They may involve matters of judgment, especially when weighing factors for and against revocation. The breadth of the power conferred by s 501CA of the Act renders it impossible, nor is it desirable, to formulate absolute rules about how the Minister might or might not be satisfied about a reason for revocation.

(footnotes omitted)

22    After considering matters relating to the use by the Minister of personal or specialised knowledge or the accumulated knowledge of the Minister's department, the Court concluded at [22]:

It finally remains to be observed, and emphasised, that an applicant's prospects of persuading the Minister to revoke a cancellation decision will doubtless be all the greater if the applicant adduces evidence, or other supporting material, to make good the claims that she or he makes. The production of such evidence or material in the applicant's representations would engage the need for the Minister to consider such evidence and, if necessary, to answer it with further or different evidence, or other material, if the claims are to be rejected.

23    The above reasoning emphasises that it is for the Minister, when acting personally, to form a view as to whether a matter advanced may amount to 'another reason'. Further, it is only where a matter advanced is supported by factual material and it is necessary to make factual findings in order consider the matter advanced that there is a need to consider that factual material. Those two aspects explain the opening statement (quoted above) that 'no part of the statutory power conferred by s 501CA of the Act obliges the Minister to make actual findings of fact as an adjudication of all material claims made by an applicant' (emphasis added).

24    I do not understand any aspect of the reasoning in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane to detract from what was said in Omar in a case where the matters specified in a direction under s 499 must be considered.

25    In the present case we are concerned with a deliberative obligation that is imposed upon an independent statutory Tribunal which is directed by the Minister as to the matters that it must consider by the terms of Direction 90. Certain of the provisions of the Administrative Appeals Tribunal Act 1975 (Cth) do not apply to an application or review by the Tribunal: see s 500. However, they do not include s 43 which requires the Tribunal to give reasons for its decision that 'include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based': s 43(2B) of the Administrative Appeals Tribunal Act. Therefore, in respect of representations made to the Tribunal concerning matters that the Tribunal is directed to consider which representations depend upon factual matters, it may be expected that the consideration that it must undertake is one which will enable it to discharge its statutory obligation to provide reasons that set out its findings on those factual matters. The Tribunal must know and understand such facts (what they say) and form its own view concerning them. It is only once that point has been reached that the Tribunal is in a position to undertake the statutory task of sifting the various considerations. It is an essential part of the deliberative task of considering representations as to matters that the Tribunal must consider that views are formed as to any factual material advanced as the foundation for those representations.

26    It has also been said that a decision-maker must bring to bear an active intellectual process or that there must be an active intellectual engagement with the matters raised: Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352 at [36]-[46]; Ali v Minister for Home Affairs [2020] FCAFC 109 at [45] and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v FAK19 [2021] FCAFC 153 at [76].

27    As has been noted, the first ground of review in the present case adopts the form of alleging a failure by the Tribunal to give 'proper, genuine and realistic consideration' to the interests of the two boys (particularly as to the likely effect of their separation from their father). Formulations of that character are used in the cases to make the point that any required consideration (whether it be an express or implied obligation to consider a particular matter or a requirement to have regard to specified matters or some other formulation) must have genuine content. However, it has been observed that there is danger in using such terminology to express the nature of the statutory task because it may encourage the Court to evaluate the merits of the reasoning: Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; (2010) 243 CLR 164 at [29]-[30] and Omar at [36]. All of which is emphasise that in a case like the present it is necessary to first consider closely the characteristics of the deliberative statutory task that the Tribunal was required to perform.

28    There are five significant attributes of the statutory decision-making power entrusted to the Tribunal in the present case.

29    First, although providing for the visa of a person in the circumstances of the applicant to be cancelled mandatorily, the statute also mandates a process to be followed thereafter by which the applicant (as the person whose visa was cancelled) can require a view to be formed as to whether matters advanced by that person by way of representations are a reason why the cancellation should be revoked. In cases like the present the sentencing of Mr Guttridge to a term of imprisonment of more than 12 months is the sole reason why his visa has been cancelled. Therefore, other factors that might be thought to be relevant to whether cancellation was appropriate in the particular circumstances are first considered as part of the subsequent decision whether to revoke the visa cancellation. It is the mandatory terms of s 501CA that afford that opportunity.

30    Secondly, the nature of the deliberation required is the formation of a state of satisfaction. It concerns whether the character test specified in s 501(6) is satisfied and whether there is 'another reason' why the visa cancellation should be revoked. In the present case, by reason of the availability of merits review, the formation of that state of satisfaction is entrusted to the Tribunal. It was required to form the state of satisfaction as to whether there was another reason to revoke the cancellation. As explained in Omar, in order to form that state of satisfaction, the Tribunal was required to consider substantial or significant matters raised by way of representations. In the context of the Tribunal's procedures, those representations included, at least, such matters as were articulated by way of submissions to the Tribunal.

31    Thirdly, the Tribunal is required to conform to the requirements of Direction 90 which, amongst other things, requires the Tribunal to have regard as a primary consideration to the interests of children affected by the decision and sets out the factors which the Tribunal must consider in having regard to those interests. In context, the formulation 'have regard to' requires the interests of children to be considered as a matter that might be brought to account with other considerations in forming the overall state of satisfaction, but does not require those interests to be brought into account and given particular weight (whether in a fundamental way or otherwise) in reaching the required decision. Direction 90 does not give the interests of children the character of a mandatory relevant consideration. I considered the relevant authorities in Nguyen v Minister for Home Affairs [2019] FCA 892 at [6] and their application in the context of a predecessor to Direction 90 that was expressed in similar terms in Jan v Minister for Home Affairs [2019] FCA 1837 at [23]-[28]. Therefore, as stated in Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 at [13] (Bell, Gageler and Keane JJ) 'it is for the Tribunal to assess the relevance of, and the weight to be attributed to, any item of evidence'. However, the interests of children is identified as a 'primary consideration' and para 7(2) of Direction 90 says that primary considerations should generally be given greater weight than other considerations.

32    Fourthly, the subject matter of the Tribunal's deliberation is significant. It concerns the status of a person under the Migration Act and has the potential to affect the life circumstances of the person concerned in a fundamental way. This is especially so in cases like the present where (a) the person has been resident in Australia for most of their life; and (b) the interests of minor children may be affected because of the prospect that they may be deprived of the care and nurture of a person undertaking a parental role. The character and quality of consideration that must be undertaken in forming the required state of satisfaction for the purposes of s 501CA(4) was expressed by Allsop CJ (Markovic and Steward JJ agreeing) in the following terms in Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; (2018) 267 FCR 628 at [3]:

…where 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. Mechanical formulaic expression and pre-digested shorthand expressions may hide a lack of the necessary reflection upon the whole consideration of the human consequences involved. Genuine consideration of the human consequences demands honest confrontation of what is being done to people. Such considerations do not detract from, indeed they reinforce, the recognition, in an assessment of legality, that those entrusted with such responsibility be given the freedom of lawful decision-making required by Parliament.

33    Fifthly, the Tribunal (as the body to whom the legislature has entrusted the statutory task of undertaking the merits review) is an independent statutory Tribunal with members appointed based upon their decision-making expertise. They are required to conduct a hearing at which there is an opportunity to present both supporting materials and submissions (subject to the terms of s 501(6H) of the Migration Act requiring at least 2 business days' notice of information to be presented to the Tribunal) and are required to provide reasons for their decision which state the findings which support those reasons.

34    The first three matters just stated concern the nature of the deliberative power entrusted to the Tribunal. The fourth concerns the significance of the subject matter of the power. The fifth concerns the characteristics of the repository of the power.

35    It is important to have each of these aspects in mind when considering whether the Tribunal's deliberations were of the requisite kind. In order for the determination to be valid it must exhibit deliberative characteristics which conform to the nature of the decision-making power, what may reasonably be expected by way of deliberation given the significance of the subject matter of the decision and what may be expected by way of deliberation given the characteristics of the repository of the power. Put another way, by entrusting to an independent statutory Tribunal a decision-making power of the kind described in s 501CA(4) with its likely substantial consequences for a person whose visa has been mandatorily cancelled without consideration of the personal consequences of that decision (and which may have been made in respect of a person who has lived in Australia for much of the person's life) and subjecting the exercise of that power by the Tribunal to a direction such as Direction 90, Parliament required the making of a considered decision of a particular character. It was required to be based upon factual findings as to the matters advanced to support significant representations concerning matters in the direction and undertaken with the degree of deliberation that the subject matter required and in a manner that might be expected of a member of the Tribunal.

36    The authorities also emphasise that considerable care must be exercised in a case of the present kind in maintaining the distinction between a review which evaluates the merits of the Tribunal's decision (on the one hand) and a review that is confined to ensuring that the Tribunal performs its statutory decision making power by undertaking deliberation of the requisite kind (on the other hand). So, it is often said that a Court when conducting a review based upon a claim of jurisdictional error of the kind alleged in the present case must not 'slide into merits review'. In that epithet is captured an important warning that the Court must not in the name of keeping the Tribunal within the limits of its statutory authority undertake the false step of itself usurping that authority. However, that is not to say that the Court is not concerned with the merits of the case before the Tribunal. In many instances (the present is one) an understanding of the merits is necessary in order to evaluate whether the required kind of deliberation was undertaken. In a case like the present it is necessary to understand what was advanced before the Tribunal and the manner in which the Tribunal dealt with the merits, especially the extent to which it made factual findings as to matters that were relied upon in respect of representations that the Tribunal was required to consider. It is necessary not in order to reach any conclusion as to the correctness or otherwise of the Tribunal's view on the merits but rather to evaluate whether the Tribunal's view on the merits was the outcome of a deliberation of the kind that the legislature required the Tribunal to undertake in order for it to have the authority to determine those merits.

37    Finally, the following statement by the Court (Flick, Griffiths and Moshinsky JJ) in GBV18 v Minister for Home Affairs [2020] FCAFC 17 at [32](g) should be observed:

A finding that a decision-maker has not engaged in a meaningful or active intellectual process will not lightly be made (see Carrascalao at [48]). It is important to re-emphasise that each case necessarily turns on its own particular facts and circumstances (see Omar at [36(e)]; SYLN v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1986 at [107] per Griffiths J and AIJ19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 2205 at [60] per Perry J). As each case has to be looked at with close regard to its own particular facts, circumstances and evidence, it is inappropriate to apply the relevant principles simply by reference to what has happened in other cases.

The case advanced before the Tribunal concerning the interests of M1 and M2

38    Before the Tribunal, a detailed statement of facts, issues and contentions was filed for Mr Guttridge by lawyers acting on his behalf. Relevantly for present purposes, the statement advanced the following concerning the interests of M1 and M2 (paras 117-137):

The best interests of [M1]

The Applicant has been a part of [M1's] life since he was born and fulfilled a full-time parental role for him before he went to prison. [M1] is now 15 years old.

Both [M1] and his twin brother [M2] have been diagnosed with severe Autism Spectrum Disorder (ASD). His regular General Practitioner Dr Theresa JOHN (Dr John) stated in April 2021 that:

[M1] has severe autism and is very low functioning. He also has global developmental delay and sensory disorder. He is non verbal and dependent on Ms Deworboies for all his care needs. He requires 24 hour care and supervision. He is not fully toilet trained and needs to be bathed and dressed by Ms Deworboies. He is a very poor sleeper and needs monitoring during the night. He is a very large and strong boy weighing over 100kg and is volatile and unpredictable with frequent, violent outbursts.

The Applicant shared custody of the boys with Ms Deworboies before he was imprisoned. The Applicant would take the boys to his home every weekend to allow Ms Deworboies a break from being their fulltime carer. The Applicant would also go to Ms Deworboies home most days after the boys finished school to assist with their night time care.

Ms Deworboies stated (errors in original):

[M1] - is low functioning, who I am still trying to toilet train, still needs help bathing, Only sleeps a few hours a night and is non-verbal. Which causes [M1] to be very frustrated, and violent. With him punching walls, slamming doors. As he weighs over 100kg, when he jumps (because of his frustration) has caused a couple of holes in my floor. (Which I know [the Applicant] would be able to fix for me). He has actually broken floor boards.

It's disheartening because if [the Applicant] was here, he wouldn't get so upset, as he and his Dad have this bond. He points to pictures of his Dad, jumping up and down, screaming at me. I just need [the Applicant] to come home. [M1] has lashed out at me of late. Which I will admit does scare me.

The Applicant states:

[M1] is over 100kg and is a bit of a monster of a child size-wise. Ms Deworboies is just under five foot. [M1] is non-verbal and does what he wants. He is still in nappies. He towers over Ms Deworboies. I am always afraid for her safety. [M1] is a big kid and he could really do some damage if he let go. He also doesn't sleep until about 4:30am then has to get up for school so is often grumpy and angry.

Without his father's constant support and discipline, [M1] stands to hurt others including his mother, as well as himself. On 16 April 2021 [M1] was admitted to Fiona Stanley Hospital after lacerating his shin in the bathroom at home. He was required to undergo surgery to repair the wound.

In January 2021 [M1] lacerated his left arm and required six security officers to hold him down as he was not tolerating oral medications. This event was recorded as 'quite traumatising for [M1] and mum [redacted].'

Ms Deworboies states:

[M1] is a head taller than me and weighs about 106kg. Sometimes I don't know what happens to him or what has triggered him - he just starts yelling or punching. Sometimes he chases me down and tries to punch my back. I shut my bedroom door and leave it for a minute. I try not to yell. [The Applicant] would be my backup - he would be able to bring into line. They listen to him. It's me that cops it.

[M1] will continue to require 24-hour supervision for the rest of his life. This is an incredibly difficult burden for Ms Deworboies to bear alone. Paragraph 8.3(4)(b) of Direction 90 instructs decision makers to consider the length of time until the child turns 18 and the extent to which the Applicant is likely to play a positive parental role during that time. It is clear from the evidence before the Tribunal that the Applicant will play a crucial role in [M1's] life far beyond him turning 18 years old. Due to [M1's] disabilities, the Applicant will be required to support him for as long as the Applicant is physically capable.

There is no evidence before the Tribunal that the Applicant has had anything other than a positive impact on [M1]. Further, the only negative impact of the Applicant's offending on [M1] has been the period of separation caused by the Applicant's imprisonment.

[M1] is non-verbal and as such is unable to communicate with the Applicant through phone calls since he has been in prison. [M1] is unable to sit in the car for the journey to the prison and therefore has not been able to visit his father. Given that [M1] cannot sit in the car for more than 15 minutes, it can reasonably be concluded that he will not be able to sit in an aeroplane for the 17 or more hours it would take to visit his father in the UK.

Ms Deworboies states:

The twins are non-verbal but I do encourage them to talk to [the Applicant] on the phone. I write to him every two weeks with updates about the twins. Sometimes it hurts too much for [the Applicant] to try to talk to them on the phone.

Because the twins are non-verbal and [M1] doesn't read at all, [the Applicant] can't write them letters to keep in touch. [M1] has to see you to acknowledge you. Video calling wouldn't be sufficient either to maintain the relationship between the twins and their father.

Without the Applicant being able to be physically present in [M1's] life, they will not be able to maintain a relationship. [M1] does not have another male who is able to fulfil this parental role. His older brother Kevin is currently assisting Ms Deworboies care for the boys, but Kevin will not be able to continue for much longer. He stepped up when the Applicant went to prison, thinking that his support would be a short-term solution to assist his mother. Ms Deworboies stated (errors in original):

Your probably thinking 'how have I coped so far?' With the help of our oldest son Kevin. He came home to help me, and he thought his Dad would have been home by now, (As we all did) and has made plans to move back out and get on with his life. I can't blame him, he is 24. I can't/don't expect him to put his life on hold for me + and boys. That would only lead to resentment, and I don't want Kevin hating his brothers either.

It's hard for me not to think about how long I can cope for once Kev moves out. Thats why I need [the Applicant] to stay in Australia. He helps me out so much …

While there are facilities which would be able to house [M1] to care for his needs, Ms Deworboies and the Applicant have decided unequivocally against these institutions. They are exercising their parental rights to do what is in the best interests of their children and what is in [M1's] best interests is for his father to be physically present in his life.

[M1] and [M2] both will continue to meet the Department's definition of being 'dependent' on the Applicant for the remainder of the Applicant's life given the definition of dependency contained in regulation 1.05A of the Migration Regulations 1994 (Cth) which states:

(1)    …a person (the first person) is dependent on another person if:

(a)    at the time when it is necessary to establish whether the first person is dependent on the other person:

(i)    the first person is, and has been for a substantial period immediately before that time, wholly or substantially reliant on the other person for financial support to meet the first person's basic needs for food, clothing and shelter; and

(ii)    the first person's reliance on the other person is greater than any reliance by the first person on any other person, or source of support, for financial support to meet the first person's basic needs for food, clothing and shelter; or

(b)    the first person is wholly or substantially reliant on the other person for financial support because the first person is incapacitated for work due to the total or partial loss of the first person's bodily or mental functions.

Given the above definition, it is clear that [M1] and [M2] will remain dependent upon their parents until their parents' are no longer capable of caring for them. It is clearly in [M1's] best interests that the Applicant's visa cancellation be revoked. This should weigh heavily in favour of revoking the Applicant's visa cancellation and should outweigh all other considerations.

Best interests of [M2]

As was the case with [M1], prior to his incarceration the Applicant cared for [M2] as much as possible. This included weekends and after school.

The Applicant states:

[M2] is non-verbal, but easier to manage because if you give him a laptop he is happy. He still requires 24-hour care as well.

Before I went to prison I would take the twins as much as possible. If I wasn't working I would be with them. They would come and stay with me on weekends and in school holidays to give Ms Deworboies a break. They have their own room at my house. We would often go down to the park as well after school.

While [M2] is slightly higher functioning than his twin brother, he still requires 24-hour care and will do for the rest of his life. This is a significant strain to place on Ms Deworboies who will soon be without any physical and emotional support once Kevin moves out. She stated:

[M2] is high functioning - as he is toilet training, and has a vocabulary of about 40 words, but still needs a lot of guidance in bathing eg washing his hair.

Dr John stated:

[M2] also has autism, global developmental delay and sensory disorder. He functions at a high level than his brother, but requires 24 hour supervision and prompting.

[M2's] best interests clearly weigh in favour of the visa cancellation being revoked and again outweigh all other considerations.

(footnotes omitted).

39    Much of the oral evidence at the Tribunal hearing concerned M1 and M2 and their needs. There is no doubt that factual matters concerning the interests of the two boys and the adverse effect upon their interests that would result if Mr Guttridge was removed from Australia were matters that were advanced as a very significant part of the representations made on behalf of Mr Guttridge. The Tribunal itself stated that the issue was the subject of much of the oral evidence received at the hearing.

The Tribunal's reasoning as to whether revocation is in the best interests of M1 and M2

40    The Tribunal's reasons are long. They occupy some 101 pages. However, much of the length is attributable to the recitation of submissions and evidence before the Tribunal and the terms of Direction 90. As we will see, despite their length, the Tribunal did not record specific findings of fact in the reasons concerning the matters raised as to the interests of the two boys and the likely effect upon them if they were separated permanently from their father.

41    The recitation of the evidence of Mr Guttridge occupies some 14 pages. No findings are stated. There is simply a recounting of the evidence on all issues including his past offending, his risk of future offending, his rehabilitation, his fear of being sent to the United Kingdom, the care arrangements for his boys and his concern for his boys and their mother, Ms Deworboies (Mr Guttridge's former partner) if he is not able to care for them.

42    The same approach is adopted for the evidence of Ms Deworboies and other witnesses. The recounting of their evidence occupies a further 13 pages.

43    Then, after dealing with the protection of the Australian community and whether any of the past conduct of Mr Guttridge amounted to family violence, the reasons of the Tribunal turn to the interests of children and begin with the issues concerning M1 and M2. The relevant part of the reasons commences with the following statement (para 169):

M1 and M2 are the biological twin sons of the Applicant and Ms Deworboies. M1 and M2 have been diagnosed with severe Autism Spectrum Disorder. The Applicant and Ms Deworboies separated in the late 2000s. After their separation and prior to the Applicant's imprisonment and detainment, M1 and M2 lived with Ms Deworboies during the week, where the Applicant would visit them and assist with their night time care. On weekends, M1 and M2 used to go into respite care but, following closure of the facility due to the COVID-19 pandemic, M1 and M2 spent their weekends with the Applicant at his home. M1 and M2 have been living with Ms Deworboies full time since the Applicant has been in prison.

(footnotes omitted)

44    Next, the Tribunal deals with the significance of the evidence concerning the care of M1 and M2 in the following way (para 170):

The evidence regarding the arrangements and care needs for M1 and M2 (to the extent that their needs can be considered both together and separately) and the roles played by relevant individuals in this regard is extensive, and is at the centre of the oral evidence given by the witnesses at hearing. This evidence is well documented throughout the decision and, in the circumstances, the Tribunal is hesitant to paraphrase or truncate it in any way. Rather, the Tribunal has closely and extensively considered this evidence in its entirety.

(footnote omitted)

45    With respect to the Tribunal, this is a most unsatisfactory way in which to approach the deliberative task in respect of significant aspects of the factual matters for consideration by the Tribunal. The statement made by the Tribunal does not indicate whether the evidence is accepted or rejected. It does not indicate the nature of the findings that have been made based upon the evidence given. Formal recitations of the kind expressed by the Tribunal are not a substitute for reasoned findings. It is not sufficient for the Tribunal to say that it has considered matters closely and extensively. When it comes to the Tribunal, for reasons that have been given, consideration of the representations and conformance with Direction 90 required the Tribunal to make factual findings based upon deliberation and evaluation of the key material and to state those findings in its reasons.

46    This is not an instance where a failure to refer to a matter might provide the foundation for an inference that the Tribunal considered the factual matters not to be material: cp Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [5] (Gleeson CJ), [69] (McHugh, Gummow and Hayne JJ), see also [35] (Gaudron J) and ETA067 v The Republic of Nauru [2018] HCA 46 at [13]-[14]. In this instance, the Tribunal has adopted an approach of not exposing its findings. It has simply recorded the evidence that was given.

47    The Tribunal followed the above two paragraphs with a summary of the matters raised in a 'reply' filed for Mr Guttridge. Significantly, the reply submissions were directed to answering a submission made for the Minister that the interests of M1 and M2 should be given limited weight due to Mr Guttridge's drug use and a claim that there was limited evidence concerning his parenting role.

48    The Tribunal then set out certain submissions that had been advanced by the Minister including an emphasis by way of emboldened passages upon (a) a submission to the effect that it was Ms Deworboies who appears to provide the key parenting role and is the person most involved in providing them with access to interventions and services that they require; and (b) a submission questioning whether Mr Guttridge would have time to commit to his rehabilitation as well as have time for the care of his children (para 173). This technique suggests that the particular emboldened submissions were viewed by the Tribunal as having significance, but as will be demonstrated, there are no findings concerning the evidence that bears upon these matters.

49    The Tribunal then set out separately a summary of the submissions that had been advanced in the statement of fact issues and contentions as to each of M1 and M2 (paras 174-176).

50    The Tribunal then set out the following under the heading 'Summary - M1 and M2' (paras 177-186):

The Applicant and Ms Deworboies separated in the late 2000s, when M1 and M2 were roughly two or three years old. The available evidence regarding the nature and duration of the Applicant's relationship with M1 and M2, which is consistent across the witnesses who gave oral evidence, is that the Applicant continued to provide care for M1 and M2 during the evenings and on weekends at his home (whether it be every fortnight or every month), up until his incarceration. A similarly informal arrangement regarding the Applicant's financial support for M1 and M2 was in place and was satisfactory to Mr Deworboies [sic], despite the child support debt the Applicant owes.

M1 and M2 will turn 18 years of age in approximately three years. The Tribunal accepts that after this time, and for the rest of their lives, they will continue to be entirely dependent on others for all aspects of their care. However, the Tribunal considers that a continuing dependence does not enable the Tribunal to consider whether the Applicant is likely to play a positive parental role for M1 and M2 once they are beyond 18.

As to whether the role that the Applicant is likely to play in M1's and M2's lives until they turn 18 will be positive, the Tribunal struggles to conclude it would be so, in light of:

(a)    the Applicant's unmet treatment needs;

(b)    the Applicant's likelihood of reoffending;

(c)    the fact that the Applicant's abstinence from drugs is yet to be tested in the open community;

(d)    the fact that the Applicant engaged in an instance of abuse against [Ms H] in the presence of her then 12-year-old son; and (e) the Tribunal's view that the Applicant is to take responsibility and to demonstrate commitment to active rehabilitation for his offending, other than to express he realises that he wasted his first opportunity to rehabilitate and wouldn't reoffend again if released because he would be removed from Australia.

The Tribunal also notes the factors identified in para 179 above in relation to the real potential that the Applicant's past conduct or potential future conduct will negatively impact M1 and M2, and in para 178(d) in relation to the risk of M1 and M2 being at risk of exposure to family violence. There is no evidence that the Applicant's prior or likely future conduct has negatively impacted M1 and M2, however, the Tribunal notes the present circumstances are particularly unique and that any such impact would be difficult to determine.

While the Tribunal accepts that Ms Deworboies believes she would be unable to survive without the Applicant's help, the Tribunal considers this finding does not necessarily or automatically render the Applicant's parental role more 'positive'. In any event, Ms Deworboies has in fact survived during the period the Applicant has been incarcerated and subsequently detained. The Tribunal appreciates that her elder son Kevin is coming to the end of his being available to assist her and that this will be particularly difficult for Ms Deworboies. Ms Deworboies gave evidence that she is yet to attend to devise an updated NDIS care plan in the current COVID-19 environment and the Tribunal appreciates this is the case.

However, these factors do not disturb the Tribunal's finding that Ms Deworboies indeed fulfils the main parental role for M1 and M2 and that she is the most engaged with service providers for the various interventions, therapies and care that is and will be available to M1 and M2 going forward.

The Tribunal accepts that the Applicant's separation from M1 and M2 would have a significant and enduring negative effect on them, particularly given the evidence regarding M1's and M2's inability to maintain contact by technological means, and to travel. The Tribunal understands the Applicant's evidence that he considers himself to be technologically illiterate, but is of the view that if required, the Applicant would be able to obtain assistance in this respect.

In the present circumstances, the views of M1 and M2 are unknown and there is no evidence that M1 and M2 have suffered or experienced any trauma arising from the Applicant's conduct.

It is, in the Tribunal's view, clear that when taking into account the considerations identified in para 8.3(4) of Direction No. 90, the best interests of M1 and M2 weigh strongly in favour of Cancellation Decision being revoked. This is because, in the Tribunal's view, the exceedingly significant and negative impact on M1 and M2 should the Applicant be removed outweighs the potentially negative aspects identified in relation to the other relevant factors.

The Tribunal emphasises the extremity of the degree of negative impact in this matter, in current circumstances where there remains a serious 'question mark' over whether the Applicant is really capable of providing the 'positive parental role' to his children, due to:

(a)    his limited engagement with rehabilitation,

(b)    the very serious nature of drug possession with an intent to supply; and

(c)    the possession of unlicensed, unregistered, and loaded firearms that were unsecured on his property, on which his children and extended family have spent time with him over the years

(footnotes omitted, emphasis added)

51    The above summary follows the sequence of the terms of para 8.3(4) of Direction 90 which had been quoted by the Tribunal in an earlier part of its reasons (para 167). It states:

Paragraph 8.3(4) of Direction No. 90 continues to outline the factors that a decision-maker must consider when determining the best interests of a child:

(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 child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;

h)    evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.

52    Read in the context of the terms of para 8.3(4), it is evident that the full extent of the Tribunal's reasons concerning the likely effect that any separation would have on the two boys taking account of Mr Guttridge's ability to maintain contact in other ways (being the factor as stated in para 8.3(4)(d)) is contained in a single paragraph expressed as follows:

The Tribunal accepts that the Applicant's separation from M1 and M2 would have a significant and negative effect on them, particularly given the evidence regarding M1's and M2's inability to maintain contact by technological means, and to travel.

53    The general conclusion to that effect is reinforced by similar language (emboldened in the quotation above) in paras 185 and 186. The reasoning does not take the form of findings about (a) the extent to which the applicant has been responsible for parenting prior to his incarceration; (b) the emphasised contentions advanced for the Minister that it was Ms Deworboies that had the primary caring responsibility and that Mr Guttridge would, on release, not have time to assist because of the time to commit to his rehabilitation; (c) the evidence about the particular ability that Mr Guttridge had to manage the physical demands of the boys, particularly M1; and (d) the likely effect on the boys if Mr Guttridge was not available to assist with their care.

54    As a result, it is not possible to know what the Tribunal meant by the phrase 'significant and enduring negative effect'. It is not evident from the reasons what findings were made to inform that conclusion and whether they engaged with the evidence concerning the particular role that Mr Guttridge had played in the care of the boys until his imprisonment and the extent to which his older son could continue to support Ms Deworboies with their care. More fundamentally, the expressly stated earlier hesitancy to 'paraphrase or truncate' the evidence and rather rest upon the general statement that the Tribunal 'has closely and extensively considered this evidence' demonstrates a conscious decision by the Tribunal not to make any findings as to these important matters.

55    The consequence is that there is no part of the reasons that makes any findings about the key evidence concerning the practical support that the boys were said to depend upon from their father nor as to the submissions advanced for the Minister to the effect that there may be reasons to doubt whether that support may be provided by Mr Guttridge in the future. The evidence was to the effect that Mr Guttridge had a unique ability to communicate with the boys and to manage the difficult and damaging physical behaviour of M1. Further that, at present, the boys' older brother was supporting Ms Deworboies but it was unreasonable to expect that to continue. Further, there were reasons to doubt whether Ms Deworboies could continue to manage the boys alone with the consequence that they would be required to be admitted to full time care.

56    The only aspect of the reasons that might be said to engage in a meaningful way with the evidence concerning the physical care needs of the boys by reason of their diagnosed conditions and the extent to which that had been provided by Mr Guttridge (and would be provided by him if the cancellation of his visa was revoked) is the final paragraph quoted above. For ease of reference it is as follows:

The Tribunal emphasises the extremity of the degree of negative impact in this matter, in current circumstances where there remains a serious 'question mark' over whether the Applicant is really capable of providing the 'positive parental role' to his children, due to:

(a)    his limited engagement with rehabilitation,

(b)    the very serious nature of drug possession with an intent to supply; and

(c)    the possession of unlicensed, unregistered, and loaded firearms that were unsecured on his property, on which his children and extended family have spent time with him over the years.

57    It can be seen that these reasons focus upon a particular issue, namely whether Mr Guttridge would provide a positive parental role. The key issue advanced concerning the interests of the children was that they had very substantial physical care needs and they were dependent upon other to meet those needs. Those needs are not addressed at all in the Tribunal's reasons. Further, considerable evidence was advanced as to why Ms Deworboies the boys' mother was unable to continue to meet those needs without support and why Mr Guttridge was the only person who could provide the extent of the support that was needed.

Ground one: Alleged insufficiency in deliberation by the Tribunal

58    As has been noted, ground one alleges that the Tribunal failed to give 'proper, genuine and realistic consideration' to the best interests of M1 and M2. The particulars refer to the diagnosis of M1 and M2 and the failure by the Tribunal to refer to the nature of their diagnosis in its reasoning concerning their best interests. The particulars state that although there was a finding that if Mr Guttridge was removed it would have a 'significant and negative impact on M1 and M2' there was a failure by the Tribunal to engage with how a permanent separation would affect the two boys. In short, the allegation was that there was a failure to deliberate upon how the separation from Mr Guttridge would affect the interests of the two boys given the particular nature of the conditions with which they had been diagnosed.

59    As has been demonstrated, the Tribunal made no findings as to how the removal of Mr Guttridge from Australia might affect the ongoing care of the two boys. Even though it identified an issue as between the submissions for Mr Guttridge and the submissions by the Minister as to the extent of the assistance that Mr Guttridge had provided in the past and the extent to which he may be able to provide assistance in the future, there are no findings about such matters. Nor is there any finding about the evidence concerned with the extent to which the physical behaviour of M1 is likely to make it increasingly difficult for Ms Deworboies to continue to care for him without assistance. Nor is there any finding about the evidence as to whether the boys' older brother may be expected to continue to assist Ms Deworboies with their care. These are all factual matters that may be expected to have considerable bearing upon the extent to which weight might have been given to the interests of the boys.

60    Put another way, on any view of the evidence, separation of the boys from Mr Guttridge might be said to have 'a significant and enduring negative effect upon them'. However, there were varying degrees in which that effect might be significant and enduring. For reasons that have been given, the deliberation that was required of the Tribunal, meant that it had to make findings as to those matters so that it was then able to undertake the weighing process informed by a view of the extent of the material that supported the contention that it was not in the interests of the boys for the visa cancellation to remain in place. The deliberation required by the Tribunal was not discharged by adverting to the existence of the evidence and stating in the most general of terms that the Tribunal had turned its mind to that evidence. It was not enough for the Tribunal to turn its mind to such matters. It was required to deliberate upon the factual claims and make reasoned findings as to them and then bring those findings to bear when it determined the relative weight to be given to the interest of M1 and M2 (in accordance with the terms of Direction 90) in forming the required state of satisfaction.

61    Having regard to the significance of the evidence and the way in which the issue is approached in the reasons, it is evident that the Tribunal has not deliberated in the manner required by making the factual findings that are required in order to then be able to undertake the requisite consideration by affording weight to the matters advanced as reasons why the visa cancellation should be revoked. This is not a case where the issue was confined to a concern that the removal from Australia may jeopardise an emotional bond or cause a child to be deprived of the role model of an effective parent. This was a case in which the representation made concerned those matters as well as the complicated physical needs of the boys by reason of the conditions with which they had been diagnosed.

62    The Tribunal's reasons by collapsing its consideration into a recitation of the evidence followed by a generalised finding that the separation of the boys from Mr Guttridge would have a significant and enduring effect upon them (as well as the terms of its finding concerning whether Mr Guttridge would provide a 'positive parental role') manifest a failure to make findings about the key aspects of the case advanced concerning the physical needs of the boys. Without making those findings it was not possible for the Tribunal to undertake its task of considering the representations made as to the reasons why the visa cancellation should be revoked.

63    The consequence is that, having regard to the nature of the contentions advanced, the factual material relied upon to support those contentions and the content of the reasons, it must be concluded that the Tribunal failed to undertake a deliberation of the required kind.

64    The Tribunal's failure to consider those aspects assumes considerable significance when placed in the context of the Tribunal's reasoning in weighing the various considerations that were found to be relevant. After summarising its conclusions as to those considerations (paras 238-242) the Tribunal then reasoned as follows (para 243):

Having weighed the considerations in favour of revocation of the Cancellation Decision and the considerations against revocation of the Cancellation Decision, the Tribunal finds that the considerations weighing against revocation are, prima facie, balanced with those weighing in favour revocation.

65    The Tribunal then went on to conclude (paras 244-246)

There is extensive factual material which weighs heavily in the Applicant's favour, in relation to interests of his minor children, particularly M1 and M2, the effect on his partner and family should he be deported and his strong familial ties to Australia. The Tribunal also recognises the difficulties the Applicant would face in re-establishing himself in the UK with no family support, unmet treatment needs, his physical and mental health conditions, his dyslexia and what the Tribunal has found to be a moderately to highly likely relapse into drug use. These Tribunal extensively and repeatedly turned its mind to these matters at hearing and also while reaching its decision.

Despite the significant weight of the factors in the Applicant's favour, and the consequences the Applicant being removed from Australia and returned to the UK, the Tribunal is nonetheless of the strong view that:

(a)    the protection of the Australian community from future harm from the Applicant's future offending or other serious conduct is a factor which, along with:

(b)    the expectations of the Australian community and

(c)    the seriousness of the concerns held by the Australian Government in relation to family violence, as expressed in Direction No. 90,

weigh against the Applicant so strongly as to overcome the factors weighing in the Applicant's favour.

Therefore, the Tribunal finds there is not another reason why the Cancellation Decision should be revoked.

66    It can be seen that the Tribunal commenced from the position that the various considerations were 'prima facie' balanced, a view formed without making findings about the physical care of the boys. From that flawed foundation, the Tribunal then noted that there 'is extensive factual material which weighs heavily in the Applicant's favour', including the interests of M1 and M2. Again, at this point, the Tribunal resorts to a formulaic incantation that it has 'extensively and repeatedly turned its mind to these matters at hearing and also while reaching its decision'. Precisely what its understanding of 'these matters' may be is not exposed because there are no findings concerning the 'extensive factual material' as to the extent to which Mr Guttridge might be expected to assist in providing the substantial physical care needs of his two boys if the visa cancellation is revoked.

67    Therefore, the consideration that should be undertaken, informed by those findings, as the final step in the weighing process was not able to be performed. For reasons that have been given, a generalised 'taking account' of the evidence was not sufficient. The Tribunal was required to form a view and make findings as to the evidentiary material that related to a matter advanced as a reason why the visa cancellation should be revoked, relevantly for present purposes the best interests of M1 and M2. A final weighing process that was undertaken without such findings having been made is not a consideration of the kind that the statute requires.

68    It was submitted for the Minister that this is a case where any deficiency in the required consideration could not be said to be sufficiently material to amount to a failure undertake the statutory task. It was submitted that because the Tribunal had concluded that the best interests of the children weighed strongly in favour of revocation and had expressed its conclusion in extreme terms, the Tribunal had given more or less maximum weighting to the best interests of the boys. In effect, no greater weighting could be given to the factor.

69    As was explained in Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123 at [29]-[30], a statute is 'ordinarily to be interpreted as incorporating a threshold of materiality in the event of non-compliance'. Therefore, a material breach is ordinarily required in order to demonstrate that there was a failure to conform to a statutory requirement for the purposes of demonstrating jurisdictional error. As to determining whether a breach was of that character, in MZAPC v Minister for Immigration and Border Protection [2021] HCA 17 at [39], Kiefel CJ, Gageler, Keane and Gleeson JJ said:

…the plaintiff in an application for judicial review must bear the onus of proving on the balance of probabilities all the historical facts necessary to sustain the requisite reasonable conjecture. The burden of the plaintiff is not to prove on the balance of probabilities that a different decision would have been made had there been compliance with the condition that was breached. But the burden of the plaintiff is to prove on the balance of probabilities the historical facts necessary to enable the court to be satisfied of the realistic possibility that a different decision could have been made had there been compliance with that condition.

(italics in original).

70    In the present case, for reasons that have been given, the Tribunal failed to make the findings that were necessary to be able to properly weigh the interests of M1 and M2. Those interests were, on any view, a key part of what was advanced as reasons why the visa cancellation should be revoked. Even so, the Tribunal was of the view that the various considerations were prima facie 'balanced'. The final balancing that was undertaken by the Tribunal was infected with that failure. Even allowing for the language used by the Tribunal, I am not persuaded that it can be inferred for the purpose of the required counterfactual analysis that there was no greater weight that might have been given to the interests of M1 and M2. Given the nature of the failure and the prima facie position in the weighing process, I am not persuaded that the Tribunal's infected last step can be brought to bear in determining whether the Tribunal's insufficiency in deliberation was material.

71    I am satisfied that the interests of M1 and M2 was of such significance that had the Tribunal indeed made findings as to matters concerned with their physical needs and brought those findings to bear in considering the factor described in para 8.3(4)(d) of Direction 90, there was a realistic possibility that those findings could have led to a different decision by the Tribunal. The possibility is realistic because, on the view of the Tribunal, the considerations were prima facie balanced in circumstances where the Tribunal did not make specific findings concerned with whether the physical care needs of the boys might be able to be met on an ongoing basis without support and whether Mr Guttridge was the only likely source of that support and there was the possibility on the evidence of the following findings:

(1)    The physical needs of the boys were considerable;

(2)    M1 was especially physically demanding and difficult to control;

(3)    Ms Deworboies was unable to care for the boys without support;

(4)    It was becoming more difficult to manage the demanding physical behaviour of M1;

(5)    The boys' older brother was currently providing support in the absence of Mr Guttridge but that support could not be expected to continue;

(6)    Mr Guttridge's relationship with the boys was such that he was able to assist in providing regular stimulation and control for them;

(7)    Mr Guttridge had provided a form of regular respite for the boys by caring for them on weekends;

(8)    Mr Guttridge had provided additional physical assistance for the care of the boys during week day evenings;

(9)    Mr Guttridge had provided financial support for the care of the boys;

(10)    In the future, Mr Guttridge was likely to continue to provide support; and

(11)    Without the support of Mr Guttridge there was a real prospect that the care of the boys would suffer to their detriment and the possibility that they would have to enter into institutional care.

72    Findings of the above kind could reasonably be expected to add considerable weight to the interests of the boys in forming the required state of satisfaction by reference to Direction 90. It is not for this Court to evaluate whether such findings ought to have been made by the Tribunal. As was observed in the recent decision in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v FAK19 [2021] FCAFC 153 at [174] (Kerr and Mortimer JJ, Allsop CJ agreeing) in undertaking the counterfactual analysis for the purpose of considering whether a failure to conform to the statute was material:

…the supervising court must assume a Tribunal acting fairly and reasonably, with a mind open to persuasion, would give active and genuine consideration to all matters relevant to its review, including the matter which was erroneously omitted, or misconceived, and which caused it to exceed its jurisdiction.

73    I am satisfied that such a Tribunal could make findings of the kind that I have identified and those findings, if made, could have led to a different outcome.

74    It follows that ground one has been made out.

Ground two: Alleged impact on Ms Deworboies

75    The second ground of review is different in character to the first ground. It is based upon the proposition that the statutory task performed by the Tribunal required it to consider any substantial and clearly articulated argument advanced by Mr Guttridge. The ground advanced is to the effect that there was a substantial and clearly articulated contention advanced before the Tribunal that was not the subject of any finding and that demonstrates jurisdictional error.

76    The contention that is alleged to have been articulated before the Tribunal but not considered is 'the impact that its decision would have on Ms Deworboies'. Particulars to the ground refer to a submission said to have been advanced that Ms Deworboies has been subjected to physical harm from M1 since Mr Guttridge has been incarcerated and detained.

77    The Minister did not dispute the proposition upon which the ground was based but contended that the decisions in Omar and GBV18 required any such contention to be 'clearly expressed' or 'clearly articulated'. It was submitted for the Minister that the way in which matters concerning physical harm inflicted by M1 on Ms Deworboies were raised was to support contentions as to the extent to which Ms Deworboies needed the support of Mr Guttridge to care for M1, not to advance a separate contention to the effect that Ms Deworboies needed the physical protection of Mr Guttridge.

78    In support of ground two reliance was placed upon aspects of the evidence given by Ms Deworboies concerning the physical behaviour of M1 towards her. However, as has already been explained, a significant part of the case advanced by Mr Gutteridge concerned the difficulties that Ms Deworboies would have in caring for their twin sons without his support. There is no real dispute that the contentions advanced in support of that part of the case included reliance upon evidence about the physical behaviour of M1 towards Ms Deworboies.

79    Therefore, this is not a case in which the evidence itself might be said to give rise to a claim of the kind that is alleged to have been overlooked by the Tribunal. Rather, in order to establish that there was a clearly articulated claim that Ms Deworboies was at risk of physical harm from M1 if Mr Guttridge was not present to control him it must be shown that a claim of that kind was articulated by way of contention. Otherwise, the evidence was of a kind that it could be readily assumed to be part of the contention about what was needed in order to care for the boys (rather than protect Ms Deworboies).

80    The applicant was unable to point to any part of the statement of facts issues and contentions advanced for Mr Guttridge or his reply statement that articulated a claim of the kind that the Tribunal overlooked. Rather, the claim relied upon the evidence that came to be led. The best the applicant was able to identify by way of particulars was a statement to the effect that Ms Deworboies had only been able to cope so far with the help of her oldest son who came home to help while Mr Guttridge was in prison.

81    In submissions reference was made to the following passages from the statement of facts issues and contentions (already quoted above):

(1)    A quotation from the statement of Ms Deworboies about M1 that: 'As he weighs over 100kg, when he jumps (because of his frustration) [he] has caused a couple of holes in my floor… It’s disheartening because if [the Applicant] was here, he wouldn’t get so upset, as he and his Dad have this bond. He points to pictures of his Dad, jumping up and down, screaming at me. I just need [the Applicant] to come home. [M1] has lashed out at me of late. Which I will admit does scare me'.

(2)    A quotation from a statement of Mr Guttridge that M1: 'is over 100kg and is a bit of a monster of a child size-wise. [Ms Deworboies] is just under five foot. [M1] is non-verbal and does what he wants. He is still in nappies. He towers over [Ms Deworboies]. I am always afraid for her safety. [M1] is a big kid and he could really do some damage if he let go'.

(3)    A quotation from a statement of Ms Deworboies that M1: 'is a head taller than me and weighs about 106kg. Sometimes I don’t know what happens to him or what has triggered him – he just starts yelling or punching. Sometimes he chases me down and tries to punch my back. I shut my bedroom door and leave it for a minute. I try not to yell. [The Applicant] would be my backup – he would be able to bring into line. They listen to him. It’s me that cops it'.

82    However, these matters were advanced as part of submissions concerning the interests of M1 and the need for Mr Guttridge to assist in their care. They were advanced to support a contention that Ms Deworboies has difficulty in providing their physical care without the support of Mr Guttridge.

83    Later, the statement made submissions as to the family links of Mr Guttridge in Australia and the effect of non-revocation on his immediate family. The material that had been referred to in the course of submissions about the interests of M1 (and other material) was relied upon at this point in the submissions in the following statement:

The submissions made at paragraphs [110] – [152] above are relevant to demonstrate the impact that non-revocation would have on the Applicant’s children if the Applicant were not allowed to remain in Australia.

Absent is any articulation of a contention of the kind said by ground two to have been raised before the Tribunal.

84    Similarly, there is no such contention at the point in the statement where submissions are made as to the effect on Ms Deworboies if Mr Guttridge was to be removed from Australia (see paras 175 to 181).

85    It follows that it has not been demonstrated that there was a clearly articulated claim of the kind alleged and for that reason ground two has not been made out.

86    It is therefore not necessary to consider the Minister's contentions as to materiality and the significance of s 500(6H) for ground two.

Conclusion

87    For the above reasons, the application for review should be upheld on the basis of ground one. It was ground one that occupied most of the written and oral submissions. There was no suggestion that there should be any costs order other than an order that reflected the outcome of the application. The application has been successful. Therefore, there should be an order for costs in favour of Mr Guttridge.

Associate:

Dated:    16 March 2022