Federal Court of Australia
Mailau v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 610
ORDERS
Applicant | ||
AND: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent | |
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. The application be dismissed with costs
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
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BURLEY J:
1 In these proceedings Tomasi Mailau seeks review of a decision of the Administrative Appeals Tribunal dated 14 April 2021, which affirmed the decision made by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs on 13 February 2020 not to revoke the cancellation of Mr Mailau’s visa under s 501CA(4) of the Migration Act 1958 (Cth): Tomasi Mailau and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1224.
2 Mr Mailau is a 47 year-old citizen of Tonga who arrived in Australia in September 1981 at the age of 6 and has spent most of his life since then in Australia. He has been convicted of a number of criminal offences, including attempted aggravated robbery in company, for which he was sentenced to 36 months’ imprisonment, make demand with threat to endanger health, for which he was sentenced to 30 months’ imprisonment and possess/use a prohibited weapon without authorisation, for which he was sentenced to 1 month’s imprisonment.
3 In December 2018 a delegate of the Minister cancelled his visa pursuant to the mandatory cancellation provision in s 501(3A) of the Act. Mr Mailau made representations to the Minister as to why the cancellation should be revoked, and on 13 February 2020 a delegate of the Minister decided not to revoke the cancellation of his visa pursuant to s 501CA(4) of the Act. Mr Mailau then applied to the Tribunal for a merits review of the decision of the delegate.
4 A first hearing was conducted before the Tribunal over three days on 28 to 29 April 2020 and 6 May 2020 and on 7 May 2020 the decision of the delegate was affirmed, with the Tribunal providing written reasons on 28 May 2020. On 29 July 2020 that decision was set aside by orders of this Court (made by consent), and the matter was remitted to the Tribunal for reconsideration according to law.
5 A differently constituted Tribunal conducted a further hearing on 19 January 2021, 5 March 2021 and 9 April 2021, and on 14 April 2021 the Tribunal affirmed the decision under review and provided its reasons for the decision on 10 May 2021. Mr Mailau now seeks review of the decision of the Tribunal in this Court.
6 The applicant was represented by Kikkert Law, solicitors, who filed written submissions in advance of the hearing. The Minister was represented by Ms Hooper of counsel, who also filed submissions in advance of the hearing.
7 Mr Mailau relies on the following grounds:
(1) The Tribunal committed a jurisdictional error by placing no weight on Ms Cowdery’s psychological report, and/or finding that the applicant’s age and state of health are not impediments that attract any level of weight. By doing so the Tribunal either (a) failed to take into account a relevant mandatory consideration; (b) failed to give genuine and proper consideration and engage with the applicant’s submissions and/or; (c) made findings that were legally unreasonable.
(2) The Tribunal erred by considering the “cumulative best interests” of the relevant minor children in Australia. Rather, the Tribunal was required to make a finding on whether or not revocation of the visa cancellation was in the best interest of each minor child.
(3) The Tribunal erred by making an adverse finding against the applicant on the basis of hearsay evidence. Alternatively, it was legally unreasonable for the Tribunal to use hearsay evidence to make an adverse finding against the applicant.
(4) The Tribunal failed to take into account a relevant mandatory consideration, namely the impact of the non-revocation of the applicant’s visa cancellation on one of the victims, Ms MM. Alternatively, by failing to take into account this evidence, the Tribunal failed to give genuine and proper consideration and engage with the applicant’s submissions.
2. THE DECISION OF THE TRIBUNAL
8 The Tribunal delivered extensive reasons, salient aspects of which are summarised below.
9 The Tribunal noted that the issue before it was whether the discretion to revoke the mandatory cancellation of Mr Mailau’s visa may be exercised within s 501CA(4) of the Act. There was no dispute that Mr Mailau’s criminal convictions were such that he did not pass the character test within s 501CA(4)(b)(i), and accordingly the issue was whether there was another reason why the original decision to cancel the visa should be revoked within s 501CA(4)(b)(ii) of the Act.
10 The Tribunal considered that issue by reference to the structure of Ministerial Direction 79, which the Tribunal is bound to follow by reason of s 499(2A) of the Act. It noted that Direction 79 obliges the Tribunal to take into account three primary considerations, being (a) the protection of the Australian community from criminal or other serious conduct; (b) the best interests of minor children in Australia; and (c) the expectations of the Australian community. It also noted the “Other Considerations” that must be taken into account, which include the strength, nature and duration of ties that the applicant has to the Australian community, the impact of the decision not to revoke on victims and the extent of impediments if the applicant is removed from Australia. The Tribunal then turned to each of the matters required to be considered by Direction 79.
11 In relation to the first primary consideration, protection of the Australian community, the Tribunal considered the offences committed by Mr Mailau. It examined each of the factors in subclauses 13.1.1(1) of Direction 79, which concern the nature and seriousness of the conduct. In the course of so doing, the Tribunal identified violent offences and crimes of a violent nature against women for which Mr Mailau had been convicted. It noted that he had had custodial terms imposed for a cumulative period of 5 years and 9 months and that his offending commenced in 1990 when he was a juvenile and continued until May 2018. His first custodial term, for one month, was imposed in September 2006. In this context it considered the frequency of Mr Mailau’s offences, the cumulative effect of repeated offending and other matters set out in cl 13.1.1(1) of Direction 79. It concluded that Mr Mailau’s conduct “can be readily characterised as very serious”.
12 The Tribunal considered the risk to the Australian community should he commit further offences or engage in other serious conduct. In the context of the current application it is relevant to note the consideration that the Tribunal gave to the likelihood of Mr Mailau reoffending, as required by cl 13.1.2(1)(b) of Direction 79. It expressed scepticism that Mr Mailau was truly remorseful for his past conduct and doubted that he has an appreciation for the nature and totality of his offending. It also doubted, after considering evidence given by his sisters and broader immediate family, that the presence of Mr Mailau’s extensive family was likely to diminish the risk that he would reoffend. Nor did it consider that the threat of deportation and separation from his family would militate against the risk of his reoffending having regard to the impulsiveness and opportunistic nature of his criminal history.
13 After considering other evidence relied upon by the applicant in support of this factor the Tribunal turned to consideration of the evidence of Ms Edwina Cowdery, a supervising psychologist who provided a written report on behalf of Mr Mailau on 20 April 2020. The Tribunal noted that Ms Cowdery conducted a 3 hour interview with the applicant and had been provided with written material to consider. It considered it important to note that Ms Cowdery was not asked to report on or make a specific finding about Mr Mailau’s risk of recidivism.
14 The Tribunal found that Ms Cowdery’s report was directed to Mr Mailau’s state of mental health as a general matter but not to the question of recidivism. It noted that:
(a) at the time that she was initially briefed she was not given a copy of Mr Mailau’s criminal history, and was unreliable in her recollection as to whether Mr Mailau had told her about it himself;
(b) Ms Cowdery was uncertain about what Mr Mailau had told her about issues concerning his abuse of alcohol or drugs;
(c) Ms Cowdery considered that Mr Mailau suffered from chronic ADHD and unresolved grief and considered that he had not developed the skills to manage them. The Tribunal considered that these diagnoses were unhelpful in terms of making any safe assessment of Mr Mailau’s risk of recidivism;
(d) Ms Cowdery had limited recollection about receiving information about Mr Mailau’s past difficulties with illicit drugs and that her evidence about his propensity to abuse illicit drugs and his risk of recidivism was to provide a vague and generic response;
(e) the Tribunal found that:
180. Her evidence was similarly inconclusive, vague and unreliable when asked about her knowledge about the extent of any rehabilitative programs or processes the Applicant has undertaken and/or completed. The scope of her report meant that she did not enquire about any of the rehabilitative courses the Applicant may have attempted/undertaken to the point when she saw him. Further, she could not provide any detail around any specific programs, courses, or counsellors that the Applicant intended to engage upon a return to the Australian community.
(f) the Tribunal found at [181] that “In all the circumstances, it is difficult to understand how any weight at all can be attributed to her report on the issue of recidivist risk” (emphasis added), thereafter quoting a passage of her cross-examination where Ms Cowdery accepted that despite recommending a number of interventions and therapies, Mr Mailau did not express an intention to her to engage with any in the event that he was released into the community; and
(g) the Tribunal further said:
182. There followed some questions from me to Ms Cowdery. Taking her responses in total, it can be noted that (1) she did not consider the Applicant had resolved his past issues with the abuse of alcohol and illicit drugs; (2) that any capacity he may have now developed or be developing to control these issues remains a work in progress; (3) his capacity to deal with adverse issues in his life by not resorting to the abuse of alcohol and/or drugs and/or by seeking violent or criminal outcomes, remains to be tested in the general community and has only been tested in the closed confines of criminal custody or immigration detention; and (4) that if the Applicant were to undertake a defined course of treatment, he represents a good prospect of not re-offending in the general community…
15 The Tribunal concluded that the only finding that it could make regarding recidivism was that the risk of Mr Mailau re-offending is no different to what it was at the time of his most recent removal from the community, noting that at that time the sentencing judge had said that Mr Mailau appeared to have little or limited insight into the impact of his offending on the victim and the community and that he was assessed “as at medium to low risk of general re-offending”. The Tribunal also concluded that there is a convincing likelihood that, if Mr Mailau reoffended, the Australian community would quite conceivably suffer psychological and physical harm to a catastrophic level.
16 The Tribunal then turned to the second primary consideration, being the best interests of minor children in Australia. The Tribunal identified five minor children being Mr Mailau’s son aged 14 (child L), nieces G, C and M who were aged 5, 7 and 9 respectively and nephew V, who was then 8 years-old. The Tribunal dealt extensively with the evidence of the nature of Mr Mailau’s relationship with his son. It noted his evidence that he had a very close relationship with child L and that other witnesses, including two of Mr Mailau’s sisters and a niece, gave evidence that child L had struggled when Mr Mailau was incarcerated and unable to see him physically. The Tribunal also summarised the evidence of Mr Mailau’s adult daughter on the impact on child L of Mr Mailau’s absence. It addressed in some detail the evidence given in cross examination by Mr Mailau about his relationship with his children.
17 The Tribunal separately addressed the evidence going to Mr Mailau’s relationship with his nieces and nephews, noting the evidence of his sister that in Tongan culture that there is no distinction as between a biological child, a niece or a nephew. It also noted the evidence given by Mr Mailau in cross-examination about his relationship with them.
18 After reviewing the evidence, the Tribunal quoted cl 13.2(4) of Direction 79, which is reproduced later in these reasons at [45] in the context of consideration of ground 2.
19 The Tribunal considered the matters raised in each sub-section separately. In relation to (a), it found that the strong trend of the evidence is that Mr Mailau is a well-loved parental figure in his family – be it as a biological father or beloved uncle. In relation to (b) it concluded at [215] that Mr Mailau and his former wife, MM, had harmoniously worked out arrangements for looking after child L in the past and that there was no likelihood of an impediment to him continuing to play that parental role. The Tribunal formed the same conclusion at [216] in relation to his nephew and nieces. The Tribunal made no negative finding on the basis of (c) and then turned to (d), being the likely effect that any separation of Mr Mailau from the relevant children would have on them taking into account his ability to maintain contact with them in other ways. It considered that Mr Mailau would be able to continue to contact his son, nieces and nephew by telephone or other means from Tonga, just as he has during the pandemic whilst in immigration detention and in prison. The Tribunal afforded this moderate weight in favour of revocation (at [226]). In relation to (e), it noted at [227]-[230] that MM is the primary carer of child L and at [229] that the parents of Mr Mailau’s nieces and nephew are their primary carers. The Tribunal afforded this moderate weight in favour of revocation. In relation to (f), the known views of the children in question, the Tribunal noted at [232]-[233] the written evidence of child L to the effect that he wanted his father to remain in Australia so that he could be with him, a factor that the Tribunal afforded moderate weight. The Tribunal considered that the matters set out in (g) and (h) to be of no relevance, having regard to the evidence available to it.
20 In a passage criticised in ground 2 of the review the Tribunal concluded at [236] as follows (references omitted):
(a) First, the extent to which the Applicant was absent from the lives of the children during the eight month absence disclosed in the two police narratives; second, the extent to which he has been physically absent from the lives of the relevant children for at least the last four years;
(b) The likely parental role the Applicant can be expected to play in the lives of the relevant children upon the Applicant’s return to the Australian community (and re-establishment as a well-loved parental and uncle figure in his family) coupled with the approximately 35 years of cumulative parenting time left until each of the relevant children attain the age of 18 years;
(c) The reality the Applicant has maintained a level of non-face-to-face contact with the children during his period of in criminal custody and then immigration detention, be it by telephone or video coupled with the likelihood that such non- face-to-face modes of contact would be able to be maintained upon his removal to Tonga;
(d) The reality that other people primarily parent the children and have done so for at least the last four years of the Applicant’s physical absence and that this mode of primary parenting for the relevant children will continue even if the Applicant is removed to Tonga;
(e) the known views of the relatively mature Child L whose written evidence dovetails neatly and convincingly with the evidence provided by the Applicant and his witnesses who spoke of the adverse impacts the Applicant’s absence has had on Child L;
(f) the strong, but not determinative, amount of weight I have allocated to sub-paragraphs (a) and (b);
(g) the moderate level of weight I have allocated to sub-paragraphs (d), (e) and (f);
(h) the Respondent’s abovementioned concession;
– I am of the view that the cumulative best interests of the relevant minor children in Australia weigh strongly, but not determinatively, in favour of revocation of the mandatory cancellation of the Applicant’s visa. I qualify this finding by saying that the weight attributable to this Primary Consideration B does not outweigh the very heavy weight I have attributed to Primary Consideration A.
21 The Tribunal then traversed the third primary consideration, being the expectations of the Australian community at [237]-[255], concluding that it heavily weighted in favour of affirming the non-revocation decision.
22 It is relevant to note that in reviewing the presence of “other considerations” to take into account, the Tribunal referred at [270]-[273] to the impact on victims. It noted at [272] that in the absence of any victim impact statement or its equivalent, it would be unsafe to allocate any weight to this factor. Mr Mailau challenges this finding in ground 4 of his application for review.
23 The Tribunal also considered the extent of impediments to Mr Mailau if he is removed to Tonga. It noted that cl 14.5(1) of Direction 79 directs attention, inter alia, to “the non-citizen’s age and health”. In this regard the Tribunal noted Mr Mailau’s evidence that he had mental health problems and depression and that Ms Cowdery had given evidence about the subject, suggesting that his removal to Tonga could have catastrophic consequences including increased depression and probable suicidal thoughts. The Tribunal considered that two elements in the evidence “militate against” such outcomes. First, that Mr Mailau had already spent two relatively lengthy periods away from his family, one during a period of 8 months in about 2011 and another for about four years in either criminal custody or immigration detention. Secondly, despite the separation from his family over the last about four years, he has not taken any medication. The Tribunal noted at [281] that there had been no evidence or previous mention of suicidal ideation. The Tribunal concluded at [283] that in light of these matters, it was difficult to accept Ms Cowdery’s contention that Mr Mailau’s mental health would graduate to be “catastrophically compromised” in the event of his removal to Tonga. It said:
284. Thus, the Applicant’s age and state of health cannot be regarded as insurmountable impediments to his removal to Tonga. I have made certain findings about Ms Cowdery’s asserted opinion about the Applicant’s mental health upon a return to Tonga. Despite the physical separation from his family while in criminal custody and/or immigration detention, he is not presently medicated for any such mental health issues and has not been for some considerable period of time. In the final analysis, while the level of community/government subsidised healthcare may not be to the same level as that in Australia, the Applicant will be entitled to the same level of care and support for whatever mental health symptoms he may have (or develop) and for his diabetes as is available to other citizens of Tonga.
285. I therefore do not find that his age and state of health are impediments that attract any level of weight to this sub-paragraph 14.5(1)(a) of the Direction.
24 In the course of considering “other matters” the Tribunal also considered the support available to Mr Mailau in the event that he is returned to Tonga. In this regard it is relevant to ground 3 of the present application to note that the Tribunal relied on evidence given by Mr Mailau’s older sister to the effect that his mother would relocate to Tonga to live with him if he is removed (at [290]). It also relied on her evidence to the effect that Mr Mailau is known to have an extended family in Tonga (at [291]).
25 The Tribunal concluded that the extent of impediments facing Mr Mailau if removed to Tonga weighed moderately in favour of revocation of the cancellation decision.
26 The Tribunal ultimately concluded at [297] that its consideration of the matters required in Direction 79 favoured the non-revocation of the decision to cancel Mr Mailau’s visa.
3. GROUND 1 – FAILURE TO GIVE WEIGHT
27 In ground 1 Mr Mailau contends that the Tribunal erred by placing no weight on two aspects of the evidence adduced by him. In the first, in particulars 1.1 and 1.2 appended to ground 1, he contends that at [181] of its reasons the Tribunal erred by concluding that “it is difficult to understand how any weight at all can be attributed to [Ms Cowdery’s] report on the issue of recidivist risk”. In the second, in particulars 1.3, 1.4, 1.5, 1.6 and 1.7, he refers to [285] of the Tribunal’s reasons and contends that there the Tribunal found that his age and state of health were not “impediments that attract any level of weight to this sub-paragraph 14.5(1)(a) of the direction”. He submits that while the Tribunal was entitled to give this consideration less weight, it was not appropriate for the Tribunal to place no weight at all on it.
28 For both aspects of ground 1, Mr Mailau submits that the Tribunal either: (a) failed to take into account a relevant mandatory consideration; (b) failed to give genuine and proper consideration and engage with the applicant’s submissions and/or; (c) made findings that were legally unreasonable.
29 In the first aspect of his application Mr Mailau focusses on [181] of the Tribunal’s reasons. Ms Cowdery’s evidence was considered in detail by the Tribunal at [167]-[182] and [279]-[283], the substance of which is summarised at [14] above. The full passage in [181] is as follows:
181. In all the circumstances, it is difficult to understand how any weight at all can be attributed to her report on the issue of recidivist risk:
Ms Letcher-Boldt: Just to confirm, you have recommended quite a number of different interventions and therapies that you consider would assist the applicant to deal with unresolved grief, anger management issues, and the use of alcohol. But are you aware whether the applicant has, since he’s been put into immigration detention and gaol, undertaken, or addressed, these interventions in any way? Do you know if he’s completed any programs, or spoken with anyone other than yourself?
Ms Cowdery: I believe he started a program while he’s in detention [sic]. I believe he started some programs while in gaol, but then dropped out of them due to literacy issues.
Ms Letcher-Boldt: Okay. When you met with the applicant, Mr Mailau, did he indicate to you any specific programs, or courses, or counsellors, that he intended to engage with if he were released into the Australian community?
Ms Cowdery: No, he didn’t.
(References omitted)
30 Leaving aside the negative views that the Tribunal formed about Ms Cowdery’s recollection of the information provided to her by Mr Mailau (see [14] above), it is apparent that the Tribunal took the view (at least) that Ms Cowdery: (a) did not discuss Mr Mailau’s history of offending with him; (b) was not supplied with his criminal record prior to the preparation of her report; and (c) was not asked to consider and report on the likely risk that Mr Mailau would continue to offend if released into the community.
31 Furthermore, as the passage from [181] set out above indicates, the Tribunal also took into account the evidence of Mr Mailau’s failure to complete various rehabilitation courses. That passage was followed by the Tribunal’s summary of the evidence of Ms Cowdery to the effect that she had not considered that Mr Mailau had resolved his past issues with alcohol and drug abuse. The Tribunal expanded further on its views in this respect at [182], before it concluded:
183. Taking into account my above assessment of each of the factors possibly informative about the Applicant’s risk of recidivism, I am not satisfied that any definitive finding can be made about the level of this Applicant’s recidivist risk. Based on the totality of the evidence now before the Tribunal, the only finding I can safely make is that this Applicant’s risk of re-offending is now no different to what it was at the time of his most recent removal from the Australian community. Put another way, and at best, nothing in the material convinces me that his risk of recidivism is materially different to what it was found to be by Burns J when His Honour sentenced the Applicant on 22 May 2018…
32 Mr Mailau contended in oral submissions that finding (b) in [30] above was in error because Ms Cowdery was supplied with the Minister’s statement of facts, issues and contentions prior to the preparation of her report, and that that document set out Mr Mailau’s criminal record.
33 This submission is based on counsel’s re-examination of Ms Cowdery before the Tribunal. However, in my view the passage of evidence relied upon merely confirms that Ms Cowdery had in her possession the Minister’s statement of facts, issues and contentions at the time of her cross examination. It does not establish that she had read it at the time she prepared her report. Furthermore, the report itself refers in terms to the information used to assist in its preparation, which identifies Mr Mailau’s statement of issues, facts and contentions, but does not record her receipt or reliance upon the Minister’s statement of facts, issues and contentions. While Mr Mailau’s statement of issues, facts and contentions does contain some reference to his past convictions, it was not established that Ms Cowdery had a complete list of Mr Mailau’s convictions. Further, Ms Cowdery’s oral evidence was that she did not discuss Mr Mailau’s criminal history with him. In the circumstances, it is not apparent that the Tribunal made an error in concluding that Ms Cowdery had not been supplied with details of Mr Mailau’s criminal record when she prepared her report.
34 Mr Mailau places emphasis upon a conclusion set out in Ms Cowdery’s report that in her view, with certain interventions, Mr Mailau “would more than likely be a productive member of Australian society in the future”. However, the Tribunal found, by reference to her oral and written evidence, that Ms Cowdery had not been given a copy of Mr Mailau’s criminal history before preparing her report, had no real knowledge about any rehabilitation programs attended by Mr Mailau and had formed the view that Mr Mailau had not resolved his past issues arising from his abuse of drugs and alcohol (see [14] above). Having regard to its other findings on the subject, there is plainly a factual basis for the Tribunal to conclude at [183] that it was not satisfied that any definitive finding can be made about the level that Mr Mailau would continue to offend if he is returned to the Australian community.
35 These matters inform the conclusion that it cannot be said that the Tribunal failed to take into account a claim raised (being a mandatory relevant consideration): see Minister for Home Affairs v Omar [2019] FCAFC 188; 272 FCR 589 at [36] (Allsop CJ, Bromberg, Robertson, Griffiths and Perry JJ). Nor can it be concluded that the Tribunal failed to give genuine and proper consideration to a submission made by Mr Mailau. Nor, having regard to the reasons given, can it fairly be said that the reasons given by the Tribunal were legally unreasonable within well-established authority. In this regard, see, for example, the principles summarised in Stewart v Minister for Immigration. Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 196; 281 FCR 578 at [64]-[68] (Rares, Anastassiou and Stewart JJ) and BHL19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 94; 277 FCR 420 at [129]-[138] (White, Wigney and Bromwich JJ). Indeed, the basis for ascribing no weight to Ms Cowdery’s evidence was set out in some detail and clearly engaged with the submissions made. Accordingly the first aspect advanced under ground 1 must be rejected.
36 In relation to the second aspect, Mr Mailau contends that by finding, at [285] of its decision, that the applicant’s age and state of health were not impediments he would face if removed from Australia “that attract any level of weight”, pursuant to cl 14.5(1)(a) of Direction 79, the Tribunal, in essence, attributed no weight to those factors. He submits that whilst the Tribunal was entitled to give this consideration less weight, it was not appropriate in the circumstances to place no weight at all on this consideration. He submits that “by giving Ms Cowdery’s report and/or the applicant’s age and state of health no weight at all, the Tribunal failed to take into account a relevant mandatory consideration”.
37 The Minister submits that it was open to the Tribunal to place no weight on Ms Cowdery’s evidence in relation to the extent Mr Mailau’s age and state of health would cause impediments. He further submits that, on a fair and literal reading of the Tribunal’s reasons, rather than no weight the Tribunal gave “a lesser degree of weight” to that evidence.
38 Clause 14.5 of Direction 79 raises as an “other consideration” the extent of any impediments that the non-citizen may face if removed to their home country, taking into account: (a) their age and health; (b) substantial language or cultural barriers; and (c) social, medical and/or economic support to them in that country.
39 I have summarised the Tribunal’s findings under the heading “Applicant’s age and state of health” in [23] above. The Tribunal noted at [278] that the applicant had indicated that he had mental health problems and depression, but that he had not taken any medication for those conditions since about September the previous year.
40 The Tribunal rejected the evidence of Ms Cowdery to the effect that Mr Mailau would suffer “catastrophic mental health outcomes” in the event that he were to be removed to Tonga. The Tribunal gave two reasons for this view. First, because Mr Mailau had already spent two sustained periods away from his family and secondly, despite that separation, he had not recently had the need to take any medication in relation to his mental health. These matters led the Tribunal to reject Ms Cowdery’s contention that the state of Mr Mailau’s mental health “would graduate from what it is now into one that is ‘catastrophically compromised to the extent that his suicidal potential could be greatly increased’ in the event of his removal to Tonga”. It was open for the Tribunal to consider and reject the evidence of Ms Cowdery in making its findings of fact. It scrutinised the evidence and provided reasons for reaching its conclusion. Having rejected that evidence, it was open to the Tribunal to form the view that it expressed at [284], that Mr Mailau’s age and state of health could not be regarded as “insurmountable impediments to his removal to Tonga”. I emphasise the word “insurmountable” because the contention advanced is that the Tribunal gave no weight at all to Mr Mailau’s age and state of health. The conclusion expressed by the Tribunal at [285] that it “therefore [does] not [find] that [Mr Mailau’s] age and state of health are impediments that attract any level of weight to this sub-paragraph of 14.5(1)(a) of the Direction” must be understood in the context of [284]. Ultimately, it is apparent that the Tribunal did not fail to have regard to the age and state of health of Mr Mailau, rather it concluded that they were not impediments that warranted the attribution of any weight in considering the factors under cl 14.5(1)(a) of Direction 79. In undertaking its merits review of the application, the Tribunal was entitled to take that view.
41 Accordingly, the reasoning advanced by the Tribunal cannot be said to reflect a failure on its part to take into account the age and state of health of Mr Mailau. Nor can it be said that it failed to give genuine and proper consideration to those matters. Nor, can it be concluded that the findings made were legally unreasonable within well-established authority, including the cases referred to at [35] above.
4. GROUND 2 – BEST INTERESTS OF CHILDREN
42 In ground 2 Mr Mailau contends that the Tribunal erred by failing to consider whether or not revocation of the visa cancellation was in the best interest of each minor child. The particulars appended to this ground refer to [236] of the decision, which is set out in [20] above.
43 Mr Mailau submits that a decision maker must first make a determination about whether cancellation is, or is not, in the best interests of each minor child and then proceed to a weighing exercise with other considerations, citing, inter alia, Spruill v Minister for Immigration and Citizenship [2012] FCA 1401; 135 ALD 45 (Robertson J) and Paerau v Minister for Immigration and Border Protection [2014] FCAFC 28; 219 FCR 504 at [50] (Buchanan, Barker and Perry JJ). He submits that the Tribunal failed to first consider the best interests of each child and that it was not sufficient for it to make a finding regarding the “cumulative best interests” of the children.
44 The Minister accepts that the decision maker must expressly or impliedly make a determination about whether revocation of the cancellation is in the best interests of each of the individual children concerned, and cannot leave consideration at an hypothetical level, noting the language of cl 13.2 (3) of Direction 79. He submits, however, that whilst the Tribunal was in a position to give individual attention to Mr Mailau’s son, child L, the nature of the evidence before the Tribunal treated his nieces and nephews collectively. He submits that when the Tribunal referred to giving cumulative consideration to the best interests of the children, it should be understood to have said that it added up the weight of each of their interests individually, and allocated a degree of weight to them, there being nothing in the reasons for the decision to indicate that the tribunal had collectively considered the best interests of the children and then averaged them out by reference to the fact that there were six relevant children in total.
45 Clause 13.2 of Direction 79 provides as follows:
13.2 Best interests of minor children in Australia affected by the decision
(1) Decision-makers must make a determination about whether revocation is in the best interests of the child.
(2) This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to revoke or not revoke the mandatory cancellation decision is expected to be made.
(3) 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.
(4) In considering the best interests of the child, the following factors must be considered where relevant:
a) The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
b) The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
c) The impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
d) The likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or
non-citizen’s ability to maintain contact in other ways;
e) Whether there are other persons who already fulfil a parental role in relation to the child;
f) Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
g) Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and
h) Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
(Emphasis added)
46 It will be seen that cl 13.2(3) requires that the best interests of each child should be given individual consideration to the extent that their interests may differ. The degree to which it may be said that this arises for each child will depend on the representations made to the Tribunal about the subject. Some children may not be relevant for consideration by the Tribunal. Others may have a special role in the lives of the applicant for revocation and require individual attention. The duty to consider representations made in support of revocation of a cancellation decision requires the decision-maker to engage in an active intellectual process with reference to those representations.
47 In Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CTB19 [2020] FCAFC 166; 280 FCR 178 the Full Court (McKerracher, Kerr and Wigney JJ) said at [15](7):
The representations need to be “significant and clearly expressed” (GBV18 at [32(d)]) or “clearly articulated and substantial or significant”: Omar (at [39]); GBV18 (at [32(e)]-[32(f)]) and EVK18 (at [14]). Put another way in AXT19 (at [56]) and applied by Bromberg and Mortimer JJ in DQM18 (at [27]):
[t]he greater the degree of clarity in which a claim has been made and advanced for consideration, the greater may be the need for the [decision-maker] to consider the claim in clear terms. Conversely, the more obscure and less certain a claim is said to have been made, the less may be the need for the [decision-maker] to consider the claim.
48 The Tribunal gave detailed consideration to the best interests of minor children at paragraphs [186]-[236] of its reasons. It correctly identified the five minor children of relevance, including Mr Mailau’s son, child L. It summarised the evidence adduced on behalf of Mr Mailau, which included direct evidence from Mr Mailau, from his sisters and from his 22 year-old daughter. It summarised the evidence in relation to child L in particular, and by reference more generally to his nieces and nephews. It noted that during cross examination, Mr Mailau was confronted with evidence from police records that in 2011 he had not been at home with his family for the past 8 months, which, despite denials from Mr Mailau, the Tribunal found to have been the case. It considered each of the factors set out in cl 13.2 of Direction 79.
49 I have set out the conclusions reached by the Tribunal at [20] above. They are a reflection of the way in which the case was presented to the Tribunal. It may be noted that in the summary of evidence presented to the Tribunal after the hearing, particular reference is made to child L, but more general reference is made to Mr Mailau’s “nieces, nephews”. In closing oral submissions, counsel for Mr Mailau made reference specifically to child L, but (understandably) made more general reference to his nieces and nephews. That is not to say that counsel presenting the case for Mr Mailau diminished the importance of Mr Mailau to each of the individual nieces and nephews. But rather, the submissions identified that although each had an important and individual relationship with him, it was of a similar (and close) nature for all of them. In this regard, there was a point of distinction between the relationship Mr Mailau had with child L as his son, and the nieces and nephews, but all were close to Mr Mailau. The Tribunal noted specifically at [186] that Direction 79 requires that the best interests of each child should be given individual consideration, to the extent that their interests may differ.
50 The particular focus of the submission advanced by Mr Mailau is the conclusion of the lengthy section of the Tribunal’s reasons, where at [236] it says:
– I am of the view that the cumulative best interests of the relevant minor children in Australia weigh strongly, but not determinatively, in favour of revocation of the mandatory cancellation of the Applicant’s visa. I qualify this finding by saying that the weight attributable to this Primary Consideration B does not outweigh the very heavy weight I have attributed to Primary Consideration A.
51 He submits that, although child L was addressed separately previously in the Tribunal’s reasons, because of the wording in the above paragraph the Court cannot be satisfied that the Tribunal didn’t average out the impact on all children, thereby potentially lowering the weight given to this consideration overall.
52 Despite the reference to “cumulative best interests”, I do not accept that the reasoning of the Tribunal, taken as a whole, reflects a failure to take into account the best interests of each relevant minor child. Read as a whole, and taking into account the manner in which the case was presented, I consider that the Tribunal did consider each individual child’s interests in reaching the conclusion that their interests represented a factor that weighed strongly in favour of revocation of the decision to cancel Mr Mailau’s visa. As the best interests of the minor nieces and nephews did not diverge on the evidence before the Tribunal, this was an appropriate means of addressing their interests. I do not consider that, in expressing its conclusions in the manner set out in [236], the Tribunal failed to consider the best interests of each minor child. Further, I do not accept that the Tribunal’s reasoning or the reference to “cumulative best interests” indicates it “averaged out” the impact on the children.
53 Ground 2 must be rejected.
5. GROUND 3 – USE OF HEARSAY EVIDENCE
54 In [290] of its decision the Tribunal said:
290. The remaining inquiry relates to the extent of the Applicant’s social, medical and/or economic supports available to him in Tonga. While it can be accepted that the Applicant would suffer emotional hardship upon a return to Tonga, the evidence suggests that such hardship is likely to be ameliorated in three ways. First, in her oral evidence, the Applicant’s older sister made a clear reference to the Applicant’s mother re-locating to Tonga to live with the Applicant were he to be removed there:
Witness: My mum is 81 years old and she is sitting – like in the last two and a half years it’s like she’s sitting on, I can’t explain, like on needles. She can’t sleep properly, she can’t – she’s lost weight and maybe it’s due to age as well but, you know, like she’s just – like she would be – she says to us that if Tommy gets sent back to Tonga she would have to go back to Tonga because he wouldn’t be able to cope there with the language barrier and just the way Tonga is. He’s been once or twice as an adult and as a young adult but Tom has no idea what Tonga is about. And so she has sworn to us that regardless how old she is and that there’s no medical facilities, proper medical facility in Tonga, that if Tom is to be sent back then she will have to try and go back to Tonga with him because she doesn’t feel he will cope or survive in Tonga.
(Emphasis in original) (Citations omitted)
55 In ground 3 Mr Mailau contends that the Tribunal erred by making an adverse finding against him on the basis of hearsay evidence of his sister in circumstances where his mother had not given evidence. Alternatively, he contends that it was legally unreasonable for the Tribunal to use hearsay evidence to make such a finding.
56 Section 33(1)(c) of the Administrative Appeals Tribunal Act 1975 (Cth) makes plain that the Tribunal is not bound by the rules of evidence. The hearsay evidence was given in evidence in chief by the applicant’s own sister, whom he called. It was given without objection. The transcript reveals that the evidence was clear and credible. It was a matter for the Tribunal to give it such weight as it considered to be appropriate. In doing so, it did not fall into jurisdictional error. Nor can it be said to have been legally unreasonable for the Tribunal to rely upon such evidence.
57 In his written reply submissions, Mr Mailau indicated that he would seek leave during the hearing to file an affidavit of his mother, which he intended to rely on in support of ground 3. No formal application for leave was made during the hearing and the affidavit is not in evidence.
58 Ground 3 must be dismissed.
6. GROUND 4 – IMPACT ON VICTIMS
59 Within cl 14 of Direction 79, the Tribunal is obliged to take into account “other considerations” in deciding whether to revoke the mandatory cancelation. Five are set out. Ground 4 of the application concerns (d), “Impact on victims”. Mr Mailau contends that the Tribunal failed to take into account a relevant mandatory consideration, namely the impact of non-revocation upon his former wife, MM, who was one of the victims of his criminal behaviour. He contends, in the alternative, that the Tribunal failed to give genuine and proper consideration and engage with his submissions in this regard.
60 In the particulars appended to ground 4, Mr Mailau contends that whilst the Tribunal addressed the issue of the impact on his victims at [270]-[273], it failed to take into account the stated views of the impact of non-revocation on MM. She gave evidence to the Tribunal that it would be devastating if Mr Mailau’s visa was to remain cancelled. Mr Mailau submits that MM was a victim of a common assault on 30 June 2008, for which he was sentenced on 12 November 2008. She gave evidence of the negative impact on her if Mr Mailau was returned to Tonga, of their successful shared custody of child L since the assault and since their divorce, of the fact that since the assault she has had a good relationship with him and trusted him to look after child L and that she wishes the cancellation to be revoked because she cannot afford to send her children to Tonga to visit.
61 Clause 14 of Direction 79 is entitled “Other considerations – revocation requests”. It provides that in deciding “whether to revoke the mandatory cancellation of a visa”, other considerations must be taken into account where relevant. These considerations include: (a) international non-refoulement obligations; (b) strength, nature and duration of ties; (c) impact of Australia business interests; (d) impact on victims; and (e) extent of impediments if removed.
62 Clause 14.4 of Direction 79 is entitled “Impact on Victims” and provides:
(1) Impact of a decision not to revoke on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims where that information is available and the non-citizen being considered for revocation has been afforded procedural fairness.
(Emphasis added)
63 Courts have determined that the emphasised “not” in cl 14.4(1) is errant, and that the true enquiry pursuant to s 501CA(4) of the Act is the impact of a decision to revoke the mandatory cancellation of a visa on the community, including victims: CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 69; 284 FCR 416 at [21], [23] (Rares, O’Callaghan and Jackson JJ); DKN20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 97; 285 FCR 1 at [36] (Collier, Markovic and Anastassiou JJ).
64 In DKN20 the Full Court at [35] endorsed the reasoning of Jackson J in Meyrick v Minister for Immigration [2020] FCA 677 at [122]-[123], where his Honour concluded that cl 14.4 “requires the Tribunal to consider a potentially positive effect of revocation on a victim” and whether the “impact is suffered by the victim because he or she is a victim, not, for example, because he or she is a partner of the non-citizen”.
65 In WQRJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 736, Derrington J said at [75] :
The decision of the Full Court in CGX20 upheld the first instance decision of Colvin J who had also identified that the import of para 14.4 was to direct the decision-maker to consider the adverse impacts on the victim and victim’s family of the applicant being permitted to remain in Australia: CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1842. His Honour said (at [20]):
For those reasons, cl 14.4 should be read in the manner expressed by the Tribunal and there was no error in approaching the present case in that way. What might be described as negative consequences for family members who were also victims of the offending if the person was not allowed to remain in Australia were matters to be considered under other aspects of Direction 79.
(Emphasis added)
66 The facts of the present case are similar to those under consideration in DKN20. There, Ms J was a victim of an offence (assault) for which the appellant had been convicted. She wrote to the Tribunal stating that, if the appellant were to be deported, their daughter would be adversely affected and that she was committed to working together with him to raise their daughter. The appellant submitted that the Tribunal had erred in that it had failed to take into account this evidence in considering the impact that revocation of the visa would have on Ms J as a victim.
67 The Full Court in DKN20 found at [39] that the “Other Considerations” in cl 14 of Direction 79 need only to be taken into account by the Tribunal “where relevant”, citing Minister for Home Affairs v HSKJ [2018] FCAFC 217; 266 FCR 591 at [52] (Greenwood, McKerracher and Burley JJ), and that what is “relevant” to a decision under s 501CA of the Act depends in part on the representations made by the applicant for revocation. In that context, the Full Court considered at [40] that where a matter is relevant to two or more mandatory relevant considerations, a decision-maker is not usually required to take the matter into account repetitively. It noted that, in its reasons, the Tribunal had considered the impact of its decision on Ms J as a family member under the heading “Best interests of minor children”. It found that Ms J’s letter of support neither expressly nor impliedly made any statement regarding the impact of non-revocation on her as a victim, as distinct from the impact on her daughter and the co-parenting of her daughter. In those circumstances, the Tribunal was not required separately to consider the impact of its decision on Ms J as a victim (at [43]).
68 In the present case, the evidence of MM was referred to in the Tribunal’s reasons. In considering the best interests of the children the Tribunal took into account that Mr Mailau and MM had successfully worked out parenting arrangements without any formal court order and that he now had a good relationship with MM. It noted that they had harmoniously worked out arrangements for ongoing care and parenting of their children, and that his relationship with MM has been and can be expected to remain positive with regard to parenting arrangements, with MM the primary carer for child L. MM’s evidence was relevantly concerned with the indirect impact upon her of a decision not to revoke the visa cancellation, because she would lose the assistance of Mr Mailau in caring for their children (adult and minor).
69 Furthermore, the submissions made by Mr Mailau before the Tribunal did not advance, by reference to the evidence of MM as a victim of crime, the impact on victims as a relevant “other consideration” within cl 14.4 of Direction 75 that should be weighed in his favour .
70 Accordingly, ground 4 has not been established.
71 The application for review must be dismissed with costs.
I certify that the preceding seventy-one (71) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Burley. |
Associate:
