Federal Court of Australia

Healey v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 449

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The applicant pay the first respondent’s costs of the application to be assessed if not agreed.

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

REASONS FOR JUDGMENT

SC DERRINGTON J

Introduction

1    Mr Healey is a citizen of the United Kingdom who migrated to Australia with his family in 1986 when he was then aged 10. He has lived in Australia ever since, holding a succession of Class BB, Subclass 155 Five Year Resident Return Visas. Mr Healy’s visa was mandatorily cancelled by a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs pursuant to s 501(3A) of the Migration Act 1958 (Cth) following his conviction for numerous offences, the most serious of which was supplying commercial quantities of cocaine and methylamphetamine, for which he was sentenced in 2015 to a term of imprisonment of 10 years, with a seven-year non-parole period.

2    Mr Healey made representations seeking revocation of the cancellation decision pursuant to s 501CA(4) of the Migration Act. On 31 August 2021, a delegate of the Minister decided not to revoke the cancellation decision. The Administrative Appeals Tribunal affirmed that decision on 19 November 2021 and published reasons for its decision (Tribunal’s reasons).

3    Mr Healey now seeks judicial review of that decision pursuant to s 476A of the Migration Act on grounds which may be summarised as follows (observing that Ground 1 of the amended notice of application has been abandoned):

(2)    The Tribunal denied the applicant procedural fairness in failing to respond to a clearly articulated argument relying on established facts being the salutary effect of the cancellation of his visa.

(3)    The Tribunal failed to apply Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction 90) by incorrectly interpreting and applying paragraph 9.4.2 and the principle stated in paragraph 5.2.4 in its consideration of the strength, nature and duration of Mr Healey’s ties to Australia.

(4)    The Tribunal failed to apply Direction 90 in not properly considering the best interest of the child

4    For the reasons that follow, the application cannot succeed.

Relevant legislative provisions

5    Section 501(3A) of the Migration Act provides that the Minister must cancel a visa that has been granted to a person if:

(a)    the Minister is satisfied that the person does not pass the character test because of the operation of:

(i)    paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or

. . .; and

(b)    the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.

6    Section 501(6)(a) provides that a person does not pass the character test if the person has a substantial criminal record (as defined by subsection (7)). Section 501(7)(c) provides that a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more. It is not in dispute that Mr Healey did not pass the character test in s 501(1) of the Migration Act, because of the operation of subsection (6)(a), on the basis of subsection (7)(c).

7    Section 499(1) of the Migration Act provides that the Minister may give written directions to a person or body having functions or powers under the Migration Act if the directions are about the exercise of those functions or powers. Such directions have been made from time to time pursuant to s 499(1) for those decision-makers who are tasked with making a decision under ss 501 or 501CA of the Migration Act, being a decision in relation to visa refusal and cancellation or revocation of a mandatory cancellation of a visa. The most recent iteration, and that which applies to the present case, is Direction 90 which came into force on 15 April 2021.

8    The Preamble to Direction 90 is in paragraph 5 of Part 1. Paragraph 5.1 sets out the objectives of Direction 90 which, relevantly, include:

(4)    The purpose of this Direction is to guide decision-makers in performing functions or exercising powers under section 501 and 501CA of the Act. Under section 499(2A) of the Act, such decision-makers must comply with a direction made under section 499.

9    Paragraph 5.2 of Direction 90 provides as follows:

5.2    Principles

The principles below provide the framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen’s visa under section 501, or whether to revoke a mandatory cancellation under s 501CA. The factors (to the extent relevant in the particular case) that must be considered in making a decision under s 501 or section 501CA of the Act are identified in Part 2.

(1)    Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

(2)    Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

(3)    The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engage in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.

(4)    Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding limited stay visas, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.

(5)    Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstance, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mention in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.

10    Part 2 is concerned with exercising the discretion. Section 6 of Direction 90 stipulates that, informed by the principles in paragraph 5.2, a decision-maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.

11    Section 7(1) stipulates that, in applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight. Section 7(2) provides that primary considerations should generally be given greater weight than the other considerations, and section 7(3) provides that one or more primary considerations may outweigh other primary considerations.

12    Section 8 of Direction 90 provides:

8.    Primary considerations

In making a decision under s 501(1), 501(2) or 501CA(4), the following are primary considerations:

(1)    protection of the Australian community from criminal or other serious conduct;

(2)    whether the conduct engaged in constituted family violence;

(3)    the best interests of minor children in Australia; and

(4)    expectations of the Australian community.

13    Paragraph 8.3 of Direction 90, which corresponds to the primary consideration in 8(3), provides as follows:

…

(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 not 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 and physical or emotional trauma arising from the non-citizen’s conduct.

14    The ‘other considerations’ which are required to be taken into account, where relevant, are specified in section 9:

9.    Other considerations

(1)    In making a decision under section 501(1), 501(2) or 501CA(4), other considerations must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):

a) international non-refoulement obligations;

b) extent of impediments if removed;

c) impact on victims;

d) links to the Australian community, including:

i. strength, nature and duration of ties to Australia;

ii. impact on Australian business interests.

15    As to paragraph 9(1)(d), paragraph 9.4.1 provides, relevantly:

(1)    Decision-makers must consider any impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.

(2)    Where consideration is being given to whether to cancel the non-citizen’s visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:

a)     how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:

i.     less weight should be given where the non-citizen began offending soon after arriving in Australia; and

ii.     more weight should be given to time the non-citizen has spent contributing positively to the community.

b)     the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.

Grounds of review

16    By Ground 2, Mr Healey contends that the Tribunal denied him procedural fairness in failing to respond to a clearly articulated argument relying on established facts, being the salutary effect of the cancellation of his visa – an argument that is said to be different from and additional to the salutary effect of Mr Healey’s imprisonment. Mr Healey asserts that this issue was reflected in his statement of issues, facts, and contentions (SIFC), his written statement, and his reply contentions. In such circumstances, it is said that the Tribunal failed to engage in an active intellectual process with significant and clearly expressed relevant representations and that such failure was material.

17    In his written statement dated 10 October 2021, Mr Healey said, ‘Spending over six years in prison and having my visa cancelled is a fairly significant deterrent against re-offending’.

18    In his SIFC, Mr Healey submitted that ‘…the Tribunal would consider that the cancellation of the applicant’s visa and the applicant’s first custodial prison sentence have had a salutary effect on him’. Further, Mr Healey’s partner is said to have reported that ‘prison has been a salutary experience for him’.

19    Before the Tribunal, Mr Healey gave evidence (Tribunal’s reasons at [35]-[36]) that:

    The likelihood of reoffending was ‘highly unlikely’… after so many years in prison and the cancellation of his visa, he has ‘so much to lose’ by ‘putting himself ‘in the same situation ever again’.

    Several protective factors would assist him in remaining abstinent and law-abiding if released. These included stable accommodation, an immediate return to work, the interests of [his partner] and their children, and prospect of future visa cancellation if he reoffends.

20    In its reasons at [88], the Tribunal recorded the oral submission put by Mr Healey’s counsel:

Dr Donnelly submitted in closing that the Applicant is ‘not a material risk of reoffending’ and it was ‘highly unlikely’ he would do so if released. Submissions were also made about protective factors like the availability of employment, and the three children the Applicant now has compared to one child at the time of his offending. Dr Donnelly emphasised the Applicant’s visa had not previously been cancelled and the fear of returning to his current situation were strong incentives to remain abstinent and law-abiding. Dr Donnelly said this primary consideration [risk to the Australian community] weighed no more than moderately against revocation.

21    Mr Healey submits that the Tribunal neglected to deal with his ‘objectively most powerful submission as to protective factors, the fact that he has for the first time endured the removal of the legal status upon which his life in Australia depends’. In that context, Mr Healey referred to the decision in QHRY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 827 in which Rangiah J held that the Tribunal had failed to respond to a submission that the primary consideration of the expectations of the Australian community should not weigh heavily against him because his Australian partner and dependent children would be deprived of his presence in the event of his removal. In circumstances where the Tribunal expressly identified the submission, but did not give ‘active intellectual attention to it’, Rangiah J held, at [48], that the Tribunal’s failure to do so amounted to jurisdictional error. Mr Healey submitted that I should deal with the construction of the Tribunal’s reasons in like manner.

22    Of particular relevance to the decision in QHRY was the Tribunal’s reference to the principles set out in paragraph 6.3 of Direction 79 (the precursor to paragraph 5.2 of Direction 90), subparagraph (7) of which stated that a matter for consideration is the consequence of a visa refusal for minor children and other immediate family members in Australia. From those matters, Rangiah J held, at [42], that ‘it should be inferred that by expressly summarising the relevant submission at [111], the Tribunal was acknowledging that the submission was relevant and substantial’. It is to be observed that the principle previously articulated in paragraph 6.3(7) of Direction 79 does not have an equivalent in Direction 90. To the extent that the reasoning in QHRY depended on the Tribunal’s juxtaposition of the then relevant principle with the relevant submission, it does not assist in this case.

23    The relevant principles in a case such as this, as stated by his Honour in QHRY, are not in dispute:

39    In Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593, the Full Court observed at [47] that an:

…inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point.

40       However, in Omar, the Full Court observed at [39] that the requirement to engage in an active intellectual process may require more than simply acknowledging or noting that a representation has been made and may, depending on the nature and content of the representation, require the decision-maker to make specific findings of fact.

41        In Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160 at [76], the Full Court held that in assessing whether a court should infer that a decision-maker failed to consider a submission or material advanced by an applicant, regard must be had to, “the facts of each particular case and the [decision-maker’s] reasons as a whole”, and “[t]he reasons must be construed in a practical and common-sense manner and not with an eye keenly attuned to the perception of error”.

24    The Tribunal’s ultimate finding in relation to the protective factors is at [95] of the Tribunal’s reasons:

The protective factors invoked by the Applicant if released are comparable to those of the past. These include stable accommodation, consistent employment, the interests of minor children, and strong support from family and friends. It is not persuasive in the Tribunal’s view that multiple minor children are more of a protective factor than a single minor child. Similar protective factors did not previously prevent the Applicant from resorting to increased alcohol abuse, using cocaine, and more serious offending.

(emphasis added)

25    The gravamen of Mr Healey’s complaint is that, in its ultimate conclusion as to the risk he posed to the Australian community should he commit further offences, the Tribunal failed to make an express finding in relation to the submission that his visa had not previously been cancelled when other protective factors and salutary impacts were the subject of express findings. It is said that it should therefore be inferred that the Tribunal failed to actively engage with the submission.

26    As was said by the Full Court in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; 236 FCR 593 at [47], an inference that a Tribunal has failed to consider an issue because of its failure to deal expressly with that issue in its reasons is one not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. As is apparent from the recitation of the evidence by the Tribunal, the issue of this being the first occasion on which Mr Healey’s visa has been cancelled was identified at several points in the Tribunal’s reasons. In the context of the manner in which the evidence as a whole was put before the Tribunal, together with the submissions of his counsel, it cannot realistically be contended that the Tribunal failed to consider the submission that the cancellation of Mr Healey’s visa might reduce his risk of recidivism. It is apparent that the evidence presented to the Tribunal ‘bundled’ together the protective factors, as did Dr Donnelly’s submissions. At [36] of the Tribunal’s reasons, the protective factors were described by the Tribunal as including ‘stable accommodation, an immediate return to work, the interests of [his partner] and their children, and prospect of future visa cancellation if he reoffends’ (emphasis added). Dr Donnelly was recorded, at [88], as having made submissions about protective factors ‘like the availability of employment, and the three children’, and to have ‘emphasised the Applicant’s visa had not previously been cancelled’ (emphasis added).

27    Likewise, the Tribunal bundled together the protective factors when reaching its conclusion. Those factors were encompassed in an inclusive list. The Tribunal’s reasons must be read as a whole. The fact that the Tribunal did not refer again to the visa cancellation as a protective factor after having referred to it previously on at least two occasions does not mean that the Tribunal should be treated as having forgotten or overlooked that factor. No error by the Tribunal is established.

28    Even if an error had been established, the error would not be material. The Tribunal acknowledged Mr Healey’s evidence about the ‘salutary experiences of imprisonment’ but found that ‘[a]spects of his current evidence came across as less than forthright and continued to minimise past conduct. This tempers his assurances about insight and recidivism risk’ (Tribunal’s reasons at [92]). Nevertheless, the Tribunal found Mr Healey’s recidivism risk to be in the ‘low to medium range’. The burden is on Mr Healey to discharge the onus of establishing that, absent the alleged error, there was a realistic possibility that the decision in fact made could have been different: MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; 390 ALR 590 at [2].

29    In circumstances where the Tribunal was not satisfied about Mr Healey’s assurances that more than six years imprisonment and his three children were sufficient protective factors to prevent recidivism, it is difficult to accept that there was a realistic possibility that the decision made could have been different even if the protective factor of visa cancellation was considered separately from the other protective factors. This is particularly so in light of the Tribunal’s conclusion (Tribunal’s reasons at [96]):

The extremely serious nature of his past offending and significant risks of harm from any repeat are such that a low to medium risk of recidivism is unacceptable. This primary consideration weighs very substantially against revocation.

30    No other outcome was a realistic possibility. Mr Healey has not discharged his onus.

31    Ground 2 cannot succeed.

32    By Ground 3, Mr Healey contends that the Tribunal failed to apply the principle in section 5.2(4) of Direction 90, namely, that Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age, and failed to properly consider the mandatory relevant consideration of ‘links to the Australian community’. Although Mr Healey’s written submissions traverse the Tribunal’s reasons generally to contend that no express consideration was given to the principle that Australia may afford a higher level of tolerance of criminal conduct to a non-citizen who has lived in the Australian community from a very young age, Ground 3 is specifically directed to whether the application of that principle was absent from the Tribunal’s consideration of subparagraph 9.4.1(2)(a) and whether the Tribunal failed to consider the elements of subparagraph 9.4.1(2)(b) at all.

33    The Tribunal was clearly cognizant of the principle in paragraph 5.2(4) (Tribunal’s reasons at [16]). Under the heading ‘Tribunal findings: Expectations of the Australian community’, the Tribunal referred specifically to the principles in paragraphs 5.2(1) and (2) when observing that Mr Healey has not been law-abiding since 1997 and ‘he should expect to forfeit the privilege of staying’ in Australia (Tribunal’s reasons at [147]). The Tribunal immediately records ‘That is despite him spending most of his life in Australia’ (Tribunal’s reasons at [147]). In context, this observation is clearly referable to paragraph 5.2(4).

34    The Tribunal found that ‘This primary consideration weighs very substantially against revocation’ (Tribunal’s reasons at [147]).

35    The Tribunal considered next the ‘Other Considerations’ provided for in section 9 of Direction 90. When considering the strength, nature, and duration of ties to Australia, the Tribunal recited paragraph 9.4.1 and observed, ‘The Applicant was predominantly educated in Australia and has lived and worked here since the age of ten’ (Tribunal’s reasons at [163]). There can be no reason for this observation, coming as it does immediately after the recitation of paragraph 9.4.1, but to factor in how long Mr Healey has resided in Australia, as required by paragraph 9.4.1(2)(a) and informed by the principle in paragraph 5.2(4). The fact that the Tribunal has not used the precise phrase ‘higher level of tolerance’ should not be construed as ignorance of why it had been directed by paragraph 9.4.1(2)(a) to consider ‘how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child’.

36    There is no merit to the contention that the Tribunal did not consider paragraph 9.4.1(2)(b) at all. The Tribunal found expressly that Mr Healey has ‘developed considerable family, social, work, and other ties’ during his life in Australia (Tribunal’s reasons at [166]). Further, the Tribunal found that if the cancellation was not revoked, whether or not Mr Healey returned to the UK on his own or with his partner and children ‘would still be emotionally and practically wrenching’ (Tribunal’s reasons at [167]). These were findings about Mr Healey himself. There is no merit to the submission that the Tribunal only considered the strength, nature and duration of ties from the perspective of relevant third parties.    

37    To the extent that Mr Healey complains about the Tribunal’s consideration of the factors required to be considered by paragraph 9.4.1, the complaint rises no higher than one as to weight. It is for the Tribunal, not the Court, to determine what is and is not relevant in the circumstances of an individual case (Matthews v Minister for Home Affairs [2020] FCAFC 146), and the weighing of the various factors a Tribunal is required to consider is also a matter for the Tribunal, not the Court: Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; 243 CLR 164 at [33]; Pallas v Minister for Home Affairs [2019] FCAFC 149 at [44]. In any event, it is not clear what more the Tribunal could have been expected to consider. It found ‘This consideration weighs very substantially in favour of revocation’ (Tribunal’s reasons at [169]).

38    Ground 3 cannot succeed.

39    By Ground 4, Mr Healey contends that the Tribunal misconstrued Direction 90 when considering the best interests of the minor children, in that the Tribunal recorded giving ‘less weight ... to this primary consideration’ having observed that ‘[b]y virtue of his imprisonment during the last seven years, there have been long periods of absence and limited meaningful contact between the Applicant and the children whose interests he invokes’ (Tribunal’s reasons at [132]).

40    It is to be recalled that paragraph 8.3(4)(a) of Direction 90 directs the decision-maker to consider:

(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);

41    Mr Healey argues that separation from parents by virtue of a prison sentence is not an example of a situation contemplated by paragraph 8.3(4)(a) and, were it to be so contemplated, would have the ‘cruel and irrational’ consequence that the executive government intended that all children of prisoners would have less weight given to their need to remain with their parents. Mr Healey contends that paragraph 8.3(4)(a) ‘should be understood as applying to circumstances where there is a demonstrated lack of interest, desire or capacity on behalf of a parent in pursuing the relationship with the child, including where disentitling conduct has occurred leading to a court order preventing contact’.

42    Mr Healey contends further that the Tribunal’s decision to accord less weight to the primary consideration of the best interests of the children because of the long periods of absence and limited meaningful contact ‘involved an inflexible application of policy’. Correlatively, it is said to have involved a failure to consider a matter that was required to be considered, ‘being that the fact of separation by virtue of a prison sentence was a factor that made even greater the interests of the child in revocation of the cancellation, so as to ensure a relationship of attachment adversely effected by imprisonment could be allowed to restore’.

43    This Ground of review is misconceived.

44    The Tribunal was clearly cognizant of its task, noting in particular its obligation to consider the best interests of each child to the extent that their interests may differ (Tribunal’s reasons at [127]). It then recited the contents of paragraph 8.3(4)(a)-(h), noting the requirement to consider those that were relevant (Tribunal’s reasons at [128]).

45    The Tribunal recorded that Mr Healey and his partner have two infant children together, both of whom were born during Mr Healey’s imprisonment (Tribunal’s reasons at [26]). It also recorded that his eldest child with a former partner, whilst still a minor, has now left high school and works in his mother’s family business (Tribunal’s reasons at [44]). The Tribunal acknowledged the frequent references in the prison records to visits and calls between Mr Healey and his family (Tribunal’s reasons at [130]).

46    The Tribunal’s reasons cannot be read fairly as having accorded less weight overall to the primary consideration of the best interests of minor children by reason of the impugned sentence in [132]. Read in context, that paragraph is concerned with subparagraph (a).

132.    By virtue of his imprisonment during the last seven years, there have been long periods of absence and limited meaningful contact between the Applicant and the children whose interests he invokes. [His partner] referred to being forced to do ‘two people’s roles’ during the Applicant’s absence. Less weight is therefore given to this primary consideration. The Tribunal accepts, however, that the Applicant and his family members have done their best to maintain a close relationship between the Applicant, his three biological children, and with [his brother’s] children.

(emphasis added)

47    The ‘less weight’ being attributed to this factor is clearly referable to the provision in subparagraph (a) that ‘less weight should generally be given where there have been long periods of absence, or limited meaningful contact’, and to his partner’s reference to having to do ‘two people’s roles’, being both mother and father, during Mr Healey’s long absence.

48    The Tribunal went on to consider several of the other factors that it was required to consider under paragraph 8.3(4). In particular, referable to subparagraphs (b) and (d), it accepted that the evidence of the eldest child’s mother that Mr Healey’s relationship with that child, who is soon to turn 18, had become less prominent after the child began living with his mother and her family and commenced work. The Tribunal accepted that the emotional hardship experienced by this child following Mr Healey’s imprisonment would only be exacerbated in the event that the cancellation decision was not revoked (Tribunal’s reasons at [133]).

49    The Tribunal drew a distinction between the interests of the eldest son and the two younger children (as required by paragraph 8.3(3)), and, referable to subparagraph (b), found that Mr Healey had done his best to maintain a close a supportive parental role in their lives and was satisfied that, absent a repeat of his past offending, would likely play a positive parental role if released (Tribunal’s reasons at [134]). The Tribunal also found, referable to subparagraph (d), that there are likely to be significant adverse effects on Mr Healey’s younger children in the event of non-revocation (Tribunal’s reasons at [135]).

50    As concerned Mr Healey’s nieces and nephews, the Tribunal found that Mr Healey had developed a close relationship with one and some relationship with the younger children but, referable to subparagraph (e), accorded this factor lesser weight because others perform the parental role (Tribunal’s reasons at [137]).

51    To read paragraph [132] of the Tribunal’s reasons as misconstruing paragraph 8.3(4) of Direction 90 cannot be reconciled with the Tribunal’s findings in paras [133]-[137], nor with its ultimate finding in relation to the best interests of the children, being that it ‘carries very substantial weight in favour of revocation’ (Tribunal’s reasons at [138]).

52    Ground 4 cannot succeed.

Disposition

53    For these reasons, the application must be dismissed.

Associate:

Dated:    29 April 2022