Federal Court of Australia

RGCZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 348

ORDERS

THE COURT ORDERS THAT:

1.    The application will be dismissed.

2.    The Applicant will pay the Respondent’s costs on a lump sum basis to be agreed, or as determined by a Registrar of the Court.

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

REASONS FOR JUDGMENT

ANDERSON J:

introduction

1    By application filed 22 September 2021, the Applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 26 August 2021 to affirm a decision of a delegate (delegate) of the First Respondent (Minister) to refuse to grant the Applicant a Partner (Provisional) (Class UF) visa (Visa) under s 501(1) of the Migration Act 1958 (Cth) (Act).

background

2    The Applicant is a male citizen of Lebanon, where he currently resides. He was 31 years old at the time of the Tribunal’s decision.

3    The Applicant first arrived in Australia on 6 May 2013 as an unauthorised maritime arrival. He applied for a Safe Haven Enterprise Visa on 8 March 2017, and he was granted a bridging visa alongside that application.

4    The Applicant committed several criminal offences in Australia. Importantly, his criminal history includes family violence convictions – namely, convictions for charges of recklessly cause injury and contravening a family violence intervention order. He was convicted of these charges in the Magistrates’ Court on 30 May 2017 and was sentenced to an aggregate sentence of 42 days imprisonment in combination with a 12-month community correction order with special conditions including supervision, unpaid community work, treatment and rehabilitation for mental health, and offending behaviour programs.

5    The victim of the Applicant’s family violence offences was his wife, who was the review applicant in the Tribunal.

6    The Applicant’s bridging visa was cancelled under s 116 of the Act and he was taken into immigration detention. The Applicant unsuccessfully sought merits review of that decision in the Tribunal. His substantive application for a visa was refused, first by a delegate and later by the Immigration Assessment Authority.

7    In June 2018, the Applicant returned to Lebanon.

8    The Applicant’s wife and their three children accompanied the Applicant to Lebanon in June 2018. The Applicant’s wife and their children returned to Australia in February 2019.

9    On 11 June 2019, the Applicant applied for the Visa. The Applicant was sponsored by his wife.

10    On 19 May 2020, the Department issued a Notice of Intention to Consider Refusal (Notice), and invited the Applicant to comment on information relating to his criminal history and, in particular, the May 2017 convictions. The Notice informed him of the Department’s intention to consider refusal of his Visa application on character grounds.

11    On 25 July 2020, the Department invited the Applicant to comment on additional information, including an email from Victoria Police which stated that the Applicant was involved in another family violence incident in 2016.

12    On 22 January 2021, after a series of extensions, the Applicant responded to the invitation to provide additional information, by providing submissions and other statements in support.

13    On 12 April 2021, the delegate refused to grant the Applicant the Visa on the basis that he did not pass the character test pursuant to s 501(6) of the Act.

14    On 27 April 2021, the Applicant’s wife sought merits review of the delegate’s decision in the Tribunal. She was required to bring the application for merits review as the Applicant was offshore.

15    A hearing was held before the Tribunal on 4-5 August 2021. Both parties were represented at the hearing. The Applicant gave evidence remotely from Lebanon and was assisted by an interpreter. The Applicant tendered further supporting material before the Tribunal.

16    On 26 August 2021, the Tribunal decided to affirm the delegate’s decision. There were two issues before the Tribunal: (a) whether the Applicant failed the character test, which required the Tribunal to conclude that there is a risk that the Applicant would engage in criminal conduct in Australia; and (b) if so, whether the Tribunal ought to exercise its discretion to refuse the Visa under s 501(1) of the Act, having regard to “Direction No. 90 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA” (Direction 90).

17    The Tribunal was satisfied that the Applicant did not pass the character test at Tribunal Reasons [78], and exercised its discretion to refuse to grant the Applicant the Visa at Tribunal Reasons [156].

judicial review

18    The Applicant presses one ground on this judicial review, which is that the Tribunal failed to correctly apply cl 8.3(3) of Direction 90 made under s 499 of the Act. That clause provides: “If there are two or more relevant children, the best interests of each child should be given consideration to the extent that their interests may differ.”

applicant’s submissions

19    The Applicant submits the evidence before the Tribunal was that the couple has three children. Their eldest child suffers from developmental delays and behavioural issues, for which he receives support and assistance in Australia through government assistance. The family suffers financially, and would not be able afford such care without government assistance. The eldest child would not receive any such assistance in Lebanon. The other two children do not suffer from any such disability.

20    The Applicant submits that the Tribunal at Reasons [121] assessed the best interests of the children as though their interests were wholly aligned. The Applicant submits that the interests of each child were not wholly aligned.

21    The Applicant submits that the Tribunal in failing to appreciate the different interests of each child, failed to comply with cl. 8.3(3) of Direction 90, and thus failed to comply with s 499(2) of the Act.

22    The Applicant submits that the Tribunal’s failure to appreciate the different interests of each child was material because the Tribunal’s decision, and the factors that it took into account was finely balanced. The Applicant submits that there were three factors that the Tribunal viewed as weighing “moderately” against the grant of the Visa (two of which overlapped entirely and could not be double counted), one factor weighing either “substantially” in favour or “somewhat less than substantial” (the children’s interests) in favour of the grant of the Visa, another factor moderately in favour of the grant of the Visa (ties to Australia), and another factor somewhat in favour of the grant of the Visa. The Tribunal found at Reasons [156], that the factors against the grant of the Visa “substantially outweighed” the factors in favour of a grant of the visa.

23    The Applicant submits that in the circumstances, where overlapping considerations weighed only moderately against the grant of the Visa, in circumstances where other considerations weighed “substantially” in favour of the grant of the Visa, even a minor adjustment to the weight of any of the favourable factors could have reversed the outcome.

24    It was accepted, in oral argument that the Tribunal, in its Reasons until [120], gave separate consideration to the interests of the eldest child to the extent that it differed from the other two children. The Applicant submits that the Tribunal’s Reasons at [121] evidence that it did not make individual findings in respect of each of the children. Rather, the Applicant submits that the Tribunal assessed the interests of the children as a single unit without appreciating where each of the children’s interests differ. As such, the Applicant submits that the correct procedure was not followed by the Tribunal at as required by cl 8.3(3) of Direction 90.

minister’s submissions

25    The Minister submits that the Applicant’s submissions are based on a premise that was not put to the Tribunal. The Minister submits by way of example, that the Applicant asserts that the children’s interests “might actually clash” if the Visa was refused. But the Applicant did not submit, and the Tribunal did not find, that the Applicant’s eldest child would be better off in Australia than in Lebanon whereas the Applicant’s other two children would be better off in Lebanon than Australia. The Minister submits that the Applicant simply did not claim that the Applicant’s children’s interests would clash in this way, and he did not claim that the care his eldest child would receive in Australia would “offset the detriment of separation” from him.

26    The Minister submits that the Applicant now seeks to advance an entirely different case to that put before the Tribunal.

27    The Minister submits that the Applicant, before the Tribunal, claimed that it was unduly harsh to put the Applicant’s mother and children into a position where they would have to choose between a life in Lebanon or Australia. This was said by the Applicant to be “particularly so” for the eldest child. The Applicant, before the Tribunal, claimed that refusal of the Applicant’s Visa would be harsh on his family members, and especially harsh on his eldest child.

28    The Minister submits that the Tribunal’s Reasons are based on the premise that the interests of the Applicant’s family were affected in similar ways or were aligned. The Minister submits that it was in the children’s best interests for the Visa to be granted. If the Visa was not granted and the children remained in Australia, they would be without “shared parenting and support” and the Applicant’s “direct contribution to the children’s care”, but they would have “the comparative advantages and opportunities in Australia”: Reasons [120]. If the Visa was not granted and the children returned to Lebanon, they would benefit from his support but leave behind the advantages of being in Australia. Those interests were aligned for all three children: [121].

29    The Minister submits that the only differential impact was that each disadvantage was more acute on the eldest child: separation from his father or separation from the comparative advantages in Australia was worse for the eldest child than the other two children. This, in the Minister’s submission, was recognised by the Tribunal at Reasons [119], where the Tribunal considered that the Applicant was “understandably concerned” about the difficulties confronting his wife “as she raises their three children in Australia without his direct support or any support from her own family”. Importantly, the Tribunal said that “[t]his is particularly so given their eldest child’s development delays and behavioural issues”. The Tribunal at Reasons [116], referred to the evidence from Dr Kurt and Ms Dennaoui to the effect that the eldest child was being adversely affected by separation from his father.

30    The Minister submits that the Tribunal at Reasons [120] dealt with the differential impact of leaving Australia and noted that leaving Australia had adverse consequences like leaving behind the comparative advantage of “the developmental support [their] eldest child currently needs and receives in Australia”.

31    The Minister submits that, properly understood, the Tribunal’s Reasons demonstrate that the Tribunal “did appreciate” that refusal would operate more harshly on the Applicant’s eldest child as compared to the other two children. The Minister submits that the Tribunal gave appropriate and individualised consideration to the best interests of all three minor children, and in doing so, the Tribunal complied with cl 8.3(3) of Direction 90.

consideration

32    The Tribunal’s Reasons do not evidence any jurisdictional error in the manner in which the Tribunal approached its task and determined to refuse to grant the Applicant a Visa under s 501(1) of the Act.

33    I reject the Applicant’s submission that the Tribunal failed to apply correctly cl 8.3(3) of Direction 90 made under s 499 of the Act.

34    Clause 8.3(3) of Direction 90 requires a decision maker to consider the following:

If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.

35    I am satisfied that the Tribunal did consider the best interests of each child and considered the extent to which their interest may differ. That is evident from the Tribunal’s Reasons as follows:

(1)    At Reasons [116(c)] the Tribunal referred to the clinical psychologist Dr Esma Kurt’s assessment of the eldest child and his speech and language delay and behavioural difficulties.

(2)    At Reasons [116(d)] the Tribunal refers to the interests of the eldest child to remain in Australia with access to NDIS entitlements for his developmental needs. The Tribunal refers to Ms Karin Steinhoff’s assessment that the eldest child “would not be offered the level of services that he requires” in Lebanon.

(3)    At Reasons [116(e)] the Tribunal refers to the evidence of speech pathologist Ms Kamelia Dennaoui in which she refers to the eldest child’s “language delays, reduced attention and behavioural difficulties”. Ms Dennaoui noted that the eldest child’s behaviour and language improved while living with his father in Lebanon but deteriorated since COVID-19 prevented the family from returning to Lebanon. Ms Dennaoui opined that the eldest child would benefit from being reunited with his father in Australia.

(4)    At Reason [119] the Tribunal refers to the difficulty the Applicant’s wife will have in raising three children in Australia without the Applicant’s support or any support of their own family. The Tribunal notes that “this is particularly so given their eldest child’s development delays and behavioural issues, as well as the general challenges of concurrently raising three children under the age of five.”

(5)    At Reasons [120] the Tribunal refers to the adverse consequences of leaving behind the comparative advantages and opportunities in Australia which includes the developmental support which the eldest child currently needs and receives from Australia.

(6)    At Reasons [121] the Tribunal complied with the requirements under cl 8.3(1) of Direction 90, it made a finding that refusal is not in the children’s best interests.

36    It is evident from the Tribunal’s Reasons that the Tribunal did appreciate that refusal of the Visa would operate more harshly on the Applicant’s eldest child as compared to the other two children. It is apparent from the Reasons that the Tribunal did follow the correct procedure in cl 8.3(3) and it did give appropriate and individualised consideration to the best interests of each of the three children pursuant to Direction 90.

disposition

37    For the reasons given, the application will be dismissed. The Applicant will pay the Minister’s costs on a lump sum basis to be agreed, or as determined by a Registrar of the Court.

Associate:

Dated:    6 April 2022