Federal Court of Australia

King v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1319

ORDERS

THE COURT ORDERS THAT:

1.    The application is dismissed.

2.    The applicant must pay the first respondent's costs of the application on a lump sum basis.

3.    On or before 4.00 pm AWST on 18 November 2022, the parties must file any agreed proposed minute of orders fixing a lump sum in relation to the first respondent's costs.

4.    In the absence of any agreement having been reached, the matter of an appropriate lump sum figure for the first respondent's costs is referred to a Registrar for determination.

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

REASONS FOR JUDGMENT

JACKSON J:

1    Mr King is a citizen of New Zealand. He is now 41 years of age. He came to Australia at the age of 27. In 2020 he was convicted of offences which included family violence and was sentenced to 18 months in prison. A delegate of the first respondent (Minister) cancelled Mr King's Australian visa, as s 501(3A) of the Migration Act 1958 (Cth) required. Mr King took up the opportunity given by the Act to make representations as to why the cancellation should be revoked. A delegate of the Minister decided not to revoke the cancellation, and the Administrative Appeals Tribunal affirmed that decision. Mr King seeks judicial review of the Tribunal's decision in this Court.

2    Mr King had pro bono legal assistance for a brief period after the Court secured it for him, but by the time of the hearing of his application for judicial review he was self-represented. In essence, the grounds of review in his application raise issues as to whether the Tribunal fell into jurisdictional error:

(a)    by placing insufficient weight on the interests of Mr King's children;

(b)    by overlooking or deliberately omitting consideration of 'crucial reports' Mr King had submitted; or

(c)    in the findings that it made about the risk that Mr King would reoffend, and about the seriousness of his offending and resulting community expectations about whether he should be permitted to re-enter the Australian community.

3    At the hearing, counsel for the Minister properly raised a further issue about whether there is a tension between certain observations that the Tribunal made about the effect of Mr King's offending on his children, which will be described below.

4    Also at the hearing, I raised a further issue about the adequacy of the Tribunal's reasoning as to why it concluded that the considerations weighing against revoking the cancellation of the visa outweighed the considerations in favour of revocation.

5    For the following reasons, I have determined each of these five issues adversely to Mr King. He has not established jurisdictional error and his application will be dismissed.

The events leading up to the cancellation of Mr King's visa

6    Mr King came to Australia with his then de facto partner and their three children, who are now adults. They have lived in Australia since then.

7    Mr King entered into a relationship with his current de facto partner, Ms Jones, in 2016. They have two children together, who were 2 and 3 years old at the time of the Tribunal's decision in November 2021. Those children are Australian citizens.

8    Mr King's record of offending in Australia commenced in October 2017. The offences that led to his imprisonment took place in January and April of 2020. Leading up to 2020, his offending was not serious enough to result in imprisonment. It was comprised of driving offences, possession of methamphetamine and possession of stolen property.

9    Mr King was sentenced to prison mainly because of his conviction on two counts of unlawful assault causing bodily harm in circumstances of aggravation. The victim of all the assaults was Ms Jones. The circumstances of aggravation were circumstances of family violence. The assaults included punching and kicking Ms Jones when she was on the floor. On one occasion, Mr King punched Ms Jones in the face while she was driving a car with the two children in the back seat. The sentences for the two assault convictions were imposed cumulatively (there were also sentences for breach of bail conditions and of a police order which were imposed concurrently with the main sentences).

The Tribunal's decision

10    The Tribunal described Mr King's history of offending in more detail than is given above, after some preliminary parts of its decision, including reference to the binding Ministerial direction that governed its review, Direction no. 90: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction 90). It found that Mr King did not pass the character test in s 501(6) of the Migration Act. So under s 501CA(4)(b)(ii) of the Act, the Tribunal was required to consider whether it was satisfied that there was 'another reason' why the cancellation of the visa should be revoked.

11    The Tribunal then went through each of the matters which Direction 90 required it to consider in Mr King's case. It is not necessary to summarise its reasoning about each of those matters in detail. Relevantly to this application:

(1)    The Tribunal noted that Mr King's primary contention was that the cancellation of the visa should be revoked because of the interests of his family members in Australia, and in particular his two minor children with Ms Jones. In broad terms, Mr King submitted that his offending was out of character, he had learned from his mistakes, his daughters provided a strong motivating factor to not reoffend, and that he intended to work to provide a positive future for his daughters. He described his relationship with them and Ms Jones as close.

(2)    The overarching considerations of Direction 90 are the protection, and expectations, of the Australian community. These are reflected in two of four considerations which the direction identifies as primary considerations. In relation to Mr King's offending, the Tribunal reviewed the sentencing remarks of the magistrate who handed down the sentence of imprisonment. The Tribunal did so in light of Direction 90, including para 8.1.1(1)(a), which relevantly stipulates that the Australian Government and the Australian community view as very serious violent crimes, crimes of a violent nature against women, and acts of family violence. The Tribunal considered the circumstances and frequency of the offending, including the lower level prior offences I have mentioned, and found that overall the nature and seriousness of Mr King's offending was very serious.

(3)    Still under the heading of the protection of the Australian community, the Tribunal went on to consider the risk to the Australian community should Mr King reoffend. It considered both the nature of the harm if that were to occur and the likelihood of it occurring. It assessed the nature of the harm to be very serious. In relation to the likelihood of reoccurrence, the Tribunal conducted a careful review of the evidence and of Mr King's submissions. That included 'a prosocial environment and supports' he said he would have if he were released. It included expressions of regret for his past conduct and supportive statements from Ms Jones and from Mr King's former de facto partner. The Tribunal considered the somewhat limited rehabilitation programs in which Mr King had engaged while in prison and the evidence about an anger management class he had attended. It said that there was no medical or psychological evidence about the risk of reoffending. It reviewed material about Mr King's plans to reintegrate into the community. It reviewed evidence about his drug use, including evidence about his plans to receive treatment for substance abuse problems.

(4)    The Tribunal expressed concern at the lack of a 'demonstrated plan to ensure the creation and maintenance of a prosocial environment moving forward, which would reduce the risk of reoffending'. Its ultimate finding on the overall likelihood of reoffending was that it was 'in the low to moderate range'. But the Tribunal considered that if Mr King were to 'engage in offending consistent with his previous very serious offences, there is a risk of significant harm to the community'. It then reached an overall conclusion on the first primary consideration of the protection of the Australian community that it weighed strongly against revocation of the cancellation of the visa.

(5)    As required by para 8.2 of Direction 90, the Tribunal also considered the second primary consideration, whether the conduct engaged in constituted family violence. The Tribunal considered Mr King's history of family violence, including breaches of restraining orders. It found that this weighed strongly against revocation of the decision to cancel the visa.

(6)    Turning to the third primary consideration, the best interests of Mr King's minor children in Australia, the Tribunal identified these as the two very young daughters already mentioned. It noted evidence from Mr King's former partner that a grandchild was 'along the way' but there was no evidence that the grandchild had been born, so the Tribunal found that that child was not relevant to this primary consideration in Direction 90. The Tribunal considered the evidence of Mr King and Ms Jones about his relationship with his small children. It accepted that he had a strong parental relationship with them and that he had shared parental responsibilities before he was incarcerated. It considered the relevance of the fact that the children had been present during one of Mr King's assaults on Ms Jones. It accepted that if Mr King were to return to New Zealand, Ms Jones and the children would likely remain in Australia. Overall, it found that the best interests of the children weighed strongly in favour of revocation of the cancellation of the visa.

(7)    On the subject of the fourth primary consideration, the expectations of the Australian community, the Tribunal applied para 8.4 of Direction 90 and the decision in FYBR v Minister for Home Affairs [2019] FCAFC 185; (2019) 272 FCR 454, and considered that the community would expect Mr King not to continue to hold a visa, having committed very serious offences. It noted that Mr King had not been in Australia for most of his life or from a very young age, but that the community may have a higher tolerance for his criminal conduct given the length of time that he contributed positively to the community without offending. Overall, the Tribunal found that the expectations of the community weighed strongly against revocation of the decision to cancel Mr King's visa.

(8)    The Tribunal went on to consider a number of other considerations that are identified in Direction 90 but are not primary considerations. It is not necessary to describe them as they are not engaged by the grounds of review.

(9)    At the end of its decision, the Tribunal summarised its findings and the weight it had decided to give to the various primary considerations and other considerations identified in Direction 90. It concluded that the considerations against revoking the cancellation of the visa outweighed the considerations in favour of revocation. It therefore decided to affirm the delegate's decision not to revoke the cancellation of Mr King's visa.

12    This Court can only set aside the Tribunal's decision if it finds that it is affected by jurisdictional error: see Migration Act s 476A (read with definition of 'privative clause decision' in s 474); Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476 at [75]-[78]; Khalil v Minister for Home Affairs [2019] FCAFC 151; (2019) 271 FCR 326 at [43]. Whether there has been jurisdictional error here requires consideration of the five issues identified at the outset of this judgment, to which I now turn.

Did the Tribunal place insufficient weight on the interests of Mr King's children?

13    This issue is raised by the first of Mr King's grounds of review, which reads:

My kids' welfare was not given enough weight. I have a good rapport with them. I also play a crucial role in their life. Part of the three main primary considerations include my children's welfare but less weight was placed upon their welfare as Australians.

14    The immediate difficulty with this ground is that the weight to be given to the interests of the children was a matter for the Tribunal and is not a matter for the Court: Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297 at [5]. And in fact, the Tribunal placed a lot of weight on the interests of Mr King's two daughters. On the face of its reasons, it did so after careful consideration of the material before it that bore upon those interests, and its conclusion was open to it.

15    While Mr King did not put it this way, there is no basis for saying that the Tribunal did not display adequate intellectual engagement with the question, or that it reached a view that was illogical or unreasonable, or that it misconstrued the relevant provisions of Direction 90, or that its approach to this primary consideration was infected by jurisdictional error in any other way. Mr King may disagree with the Tribunal and he may strongly believe that it should have found the interests of his children to be decisive. But that belief does not reveal any error which could provide a basis for the Court to find that the Tribunal's decision lacked lawful authority.

16    On 28 and 31 October 2022, after judgment had been reserved, Mr King filed written submissions which purported to make further points in relation to each of his three grounds of review. That appears to have been prompted by an order I made giving him leave to file a written submission on the fifth issue I have mentioned above, about the way the Tribunal expressed its ultimate conclusion, as to which see further below. But the further submissions of 28 and 31 October did not address that topic, and so were filed without leave. I nevertheless consider it appropriate to take the submissions into account.

17    Having done so, it appears that the point Mr King seeks to make under the rubric of ground 1 is not actually about that ground. Mr King says that the ground of appeal is about a 'denial of procedural fairness' arising from 'inattention' to a 'support letter' from Ms Jones which is said to have contained evidence of the impact of Mr King's offending on her as the victim of that offending, including her family life with Mr King's daughters in Australia. Although both ground 1 and this new point can be said to pertain to the question of the best interests of Mr King's children, they approach it from different perspectives. Ground 1 as it appears in the application makes no contention about a lack of regard to Ms Jones's 'support letter'.

18    To the extent that Mr King seeks leave to raise that point as a new ground, I would deny leave because the point has no merit. The Tribunal was not inattentive to the 'support letter', which was in fact an email from Ms Jones dated 28 October 2021. The Tribunal admitted it into evidence as an exhibit. Mr King's late submission refers in particular to what the email says about the impact that his deportation would have on Ms Jones and her family life with his daughters in Australia. The Tribunal gave specific consideration to that aspect of the email, quoting it as saying that Mr King was 'the back bone of our family and in the raising of our young daughters'.

19    The Tribunal also quoted from Ms Jones's oral evidence before the Tribunal on the topic, and to the extent that it did not quote further from the email it may properly be taken to have considered Ms Jones's oral evidence to be more pertinent. Later in its decision, the Tribunal gave specific consideration to Ms Jones's evidence about the impact of removing Mr King on her, as it was bound to do under para 9.3 of Direction 90. It placed weight her statement and on 'her judgement that it is in her family's best interests for the Applicant to remain in Australia' (para 194). The Tribunal was not required to refer to every piece of evidence before it (Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593 at [46]) and I am comfortably satisfied that it gave proper consideration to Ms Jones's evidence, wishes and interests as a whole, including as expressed in the email of 28 October 2021. Mr King complains that 'her testimony was not given substantial wait' [sic]. But the weight to be given to it was a matter for the Tribunal and not a matter properly the subject of review by this Court.

20    Ground 1 will not be upheld.

Did the Tribunal overlook or omit consideration of 'crucial reports'?

21    Ground 2 of Mr King's application is:

The Tribunal and the Minister's delegate purposely omitted or overlooked crucial reports that I submitted. This resulted in them making wrong or flawed assumptions on my current state of mind.

22    At the hearing Mr King was unable to give particulars of the reports that he said had been overlooked or omitted. Nor could he say what wrong or flawed assumptions about his state of mind the Tribunal had reached. He said that he had not prepared the grounds of review himself.

23    In the further submissions of 28 and 31 October 2022 which I have mentioned, however, Mr King referred under this ground to a report about his treatment needs that appears in the Court Book. This is something called a 'Treatment Assessment Report' created at Hakea Prison by the Department of Justice. But in fact the Tribunal gave detailed consideration to that report under the heading of 'Likelihood of the non-citizen engaging in further criminal or serious conduct' (see paras 114-116). In truth this aspect of the further submissions simply expresses disagreement with the weight the Tribunal put on its assessment of the likelihood that Mr King would reoffend. That does not establish jurisdictional error.

24    On the face of the materials there were no reports about Mr King that were put to the Tribunal, and which it should have considered but did not. Ground 2 will not be upheld.

The Tribunal's findings about the risk Mr King would reoffend

25    Ground 3 of the application is:

The[re] is no real or tangible evidence to show that I am going to reoffend again. The nature of my crime was exaggerated to the higher end of heinous offending behaviour. This in turn gave a false perception on [sic of] the expectations of the Australian Community.

26    There is no merit in the complaint made in the first sentence of this ground. I gave given above a condensed summary of the Tribunal's careful and detailed consideration of the risk of Mr King reoffending. The evidence that the Tribunal considered, as described in that summary, was real and tangible. While it did not include expert evidence, it was up Mr King and not the Tribunal or the Minister to adduce evidence of that kind.

27    To the extent that this ground is construed as a contention that the Tribunal erred because there was insufficient evidence to support its conclusion, the courts have consistently approached that ground stringently in the context of judicial review, so as to require that there be no evidence: see Australian Postal Corporation v D'Rozario [2014] FCAFC 89; (2014) 222 FCR 303 at [118] (Bromberg J) and the authorities collected there. It is also the case that an administrative decision maker is entitled to take into account material that would not be admissible evidence in a court of law: L & B Linings Pty Ltd v WorkCover Authority of New South Wales [2012] NSWCA 15 at [34] (Basten JA). This aspect of ground 3 cannot succeed.

28    Nor do I accept the contention in the second sentence that the Tribunal exaggerated the seriousness of Mr King's offending. Even if it did, that would have been an evaluation within the domain of the Tribunal to make, and not one with which the Court could interfere, unless it was affected by some other identifiable jurisdictional error, such as illogicality. It was not. To the contrary, the Tribunal's finding that the nature of the offending was serious was inevitable in light of the requirements of Direction 90. Despite those requirements, the Tribunal considered the particular circumstances of the offending as disclosed by the sentencing remarks. And despite the seriousness of the nature of the offending, it reached the conclusion that the risk (combining both probability of reoccurrence and seriousness of consequences) was low to moderate. That conclusion was entirely open to the Tribunal.

29    It follows that Mr King has not made out the third complaint in this ground, that the Tribunal had arrived at a 'false perception' of the expectations of the Australian community. In any event, the paragraphs of Direction 90 that deal with that subject (and its predecessors) operate as a deeming provision which required the Tribunal to take community expectations to be against revocation of the mandatory cancellation of the visa: see FYBR at [67]-[67] (Charlesworth J) and [104] (Stewart J).

30    Mr King's written submissions of 28 and 31 October 2022 make a further point, nominally under the heading of ground 3 but in fact having nothing to do with that ground. The point is that Ms Jones is Aboriginal and, it is said, 'the Tribunal did not give much consideration to that fact'. But that is simply wrong. The Tribunal accepted that Ms Jones's Indigenous background meant that she has a connection to country and culture that would mean it would be unlikely that she would choose to relocate herself and her daughters to New Zealand should Mr King be removed to that country. Later, it noted that Ms Jones was Indigenous Australian and that Mr King's children were both Maori and Indigenous Australian, and it considered that this gave Mr King a particularly close connection to Australia. Later still it noted again that Ms Jones and Mr King's children were Indigenous Australians.

31    Mr King's real complaint is that 'my children's ethnicity should have played a bigger part in the decision'. This is, once again, a complaint about the weight the Tribunal gave to a particular matter and cannot establish jurisdictional error. To the extent that Mr King seeks leave to raise a further ground about the Tribunal's consideration of the Indigenous background of Ms Jones and Mr King's children, leave is denied because the ground has would have no merit.

32    In any event, ground 3 will not be upheld.

The Tribunal's observations about the effect of Mr King's offending on his children

33    Paragraphs 154 and 155 of the Tribunal's decision are as follows (italics added and footnotes omitted):

As noted above and in the Sentencing Magistrate's remarks, the children were present during one of the violent assaults on their mother. The Tribunal notes that at the time the children were very young. While there is no evidence as to the effect, if any, this had on them, the Sentencing Magistrate's comments highlight the potential negative long term effects exposure to family violence can have on children, even at a young age. On this basis, the Tribunal accepts the Applicant's past conduct has had a negative impact on the children. Whether the Applicant's future conduct would have a negative impact on them would depend on the degree to which he maintains his commitment to not reoffending in particular refraining from illicit drug use or engaging in family violence. As noted above, the Tribunal has found there is a low to moderate risk of him reoffending.

Noting the potential negative impacts exposure to family violence may have had on the children, there is no evidence that the children have suffered or experienced any specific physical or emotional trauma arising from the Applicant's conduct, other than the difficulties arising from their separation from their father due to his incarceration.

34    Counsel for the Minister properly drew the Court's attention to the potential contradiction (he called it a 'tension') between the italicised sentence in the first paragraph and the italicised phrase in the second. In the first sentence, on its face, the Tribunal appears to have found that Mr King's past conduct did have a negative effect on the children. In the second phrase, it refers only to potential negative aspects that the violence may have had on the children.

35    I do not consider that this apparent contradiction amounts to jurisdictional error. The first italicised sentence is footnoted with a reference to para 8.3(4)(c) of Direction 90. That relevantly required the Tribunal to consider the impact of Mr King's prior conduct on the children. The second paragraph, including the italicised phrase, is footnoted by a reference to para 8.3(4)(h) of Direction 90, which required the Tribunal to consider evidence that the children had suffered or experienced any physical or emotional trauma arising from Mr King's conduct. In that context, the second paragraph as a whole is properly understood as a finding that there is no specific evidence of physical or emotional trauma. And the two paragraphs, taken together, are properly understood as saying that while the impact of witnessing the violence was negative for the children despite how young they were, there is no evidence of any specific physical or emotional trauma as a result. That is a coherent proposition.

36    The Tribunal's reasons are not to be read with an eye attuned to the detection of error (Minister for Immigration and Ethnic Affairs v Wu Shang Liang (1996) 185 CLR 259 at 271-272) and any lack of precision in expression in this part of the Tribunal's reasons does not amount to jurisdictional error.

The Tribunal's ultimate conclusion

37    I have described the Tribunal's ultimate conclusion, that the considerations against revoking the cancellation of the visa outweighed the considerations in favour of revocation. At para 220 of the Tribunal's reasons it expressed that conclusion, in relation to the various considerations it had just summarised, as follows:

In weighing these considerations against one another, the Tribunal considers that although there are strong countervailing considerations which favour revocation of the Cancellation Decision, including the best interests of the Applicant's children, his links to the Australian community and the extent of impediments if removed, the primary considerations of the protection of the Australian community, family violence considerations and the expectations of the Australian community outweigh those considerations in the Applicant's case.

38    Given that Mr King was self-represented I considered it appropriate to raise as a question at the hearing whether this paragraph reflected jurisdictional error. The question arises because there is no explanation, in this paragraph or elsewhere, of why the Tribunal found that one set of considerations outweighed the other. The parties were given the opportunity to file written submissions on the subject after the hearing. The Minister took that opportunity; in substance Mr King did not. As previously described at [16], the submissions he filed after the hearing, purportedly in compliance with the orders about submissions regarding the above para 220 of the Tribunal's reasons, were in fact directed at other matters.

39    The Minister's submissions analysed the question in terms of three different kinds of jurisdictional error: failure to give adequate reasons; failure to engage in an adequate intellectual process; and unreasonableness. It is correct to analyse the question that way, recognising that the different kinds of jurisdictional error may well overlap: see Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [82] (McHugh, Gummow and Hayne JJ).

40    It is convenient to start with the second of these kinds of error. There is no express indication in the Tribunal's reasons as to why it considered that the primary considerations of the protection of the Australian community, family violence considerations and the expectations of the Australian community outweighed the 'strong countervailing considerations' it had identified. The question is whether that indicates that the Tribunal did not engage in an active intellectual process in order to discharge its deliberative statutory task of considering whether there was 'another reason' why the cancellation of Mr King's visa should have been revoked.

41    In Guttridge v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 229 at [35], Colvin J summarised the requirements of that task as follows:

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

42    Later (at [60]), in a context where the question was whether the Tribunal had given 'proper, genuine and realistic consideration' to the best interests of the children of an applicant, Colvin J said that the Tribunal was:

… required to deliberate upon the factual claims and make reasoned findings as to them and then bring those findings to bear when it determined the relative weight to be given to the interest of [the children] (in accordance with the terms of Direction 90) in forming the required state of satisfaction.

43    However, each case necessarily turns on its own particular facts and circumstances: Minister for Home Affairs v Omar [2019] FCAFC 188; (2019) 272 FCR 589 at [36(e)]. Also, it is axiomatic that the reasons need to be read as a whole: DWA17 v Minister for Immigration and Border Protection [2019] FCAFC 160; (2019) 272 FCR 152 at [53].

44    When that is done in this case, it is clear that the compressed way in which the Tribunal expresses its dispositive reasoning does not reflect a lack of deliberation on its part. Paragraph 220 appears at the end of reasons in which, as described above, the Tribunal undertook a careful and thorough review of each of the matters required to be considered by Direction 90, and came to considered and appropriately nuanced conclusions as to the weight to be given to each. In the course of doing so it made reasoned factual findings. Also, at paras 28-35 the Tribunal gave express consideration to the manner in which it was to approach the statutory task in light of the requirements of Direction 90. In the final section of the reasons (at paras 210-219), the Tribunal surveyed its conclusions, noting the seriousness with which it viewed considerations of the protection of the Australian community, the family violence in which Mr King engaged, and the expectations of the Australian community. That survey in itself indicates that the Tribunal was weighing all the matters together. That was what s 501CA(4)(b)(ii) required of it in reaching a state of satisfaction as to whether there was another reason why the visa cancellation decision should be revoked. In all that context, it is evident that the Tribunal approached its task with the necessary degree of deliberation, and the compressed manner in which its ultimate conclusion is expressed does not indicate otherwise.

45    On the same basis, and turning to the first kind of jurisdictional error mentioned above, I conclude that the Tribunal has given adequate reasons for its decision. Once again, it made careful factual findings and reached reasoned conclusions throughout. It thus complied with the express requirement of s 43(2B) of the Administrative Appeals Tribunal Act 1975 (Cth) to include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based.

46    It may be that the issue of whether certain considerations outweighed others is of such a nature that the Tribunal could not be expected to indicate in detail why it came to its particular conclusion: cf. Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56; (2003) 216 CLR 212 at [40] quoting from Kitto J in Re Wolanski's Registered Design (1953) 88 CLR 278 at 281. In any event, when the Tribunal's reasons are read as a whole, it is evident why it reached the conclusion it did. Fundamentally, and as required by Direction 90, the Tribunal placed a great deal of weight on Mr King's history of family violence. Understood in that light, its dispositive reasoning at para 220 is an adequate expression of the evaluation it undertook in weighing the various considerations against each other.

47    That being so, it is not necessary to consider submissions the Minister made as to why, had the reasons been inadequate, that would not have been a jurisdictional error anyway (those submissions relied on Palme, which concerned a different obligation to give reasons found in s 501G(1) of the Migration Act).

48    Finally, for the same reasons it cannot be said that the conclusion was unreasonable in the 'outcome focused' sense identified in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 at [44] (Allsop CJ, Robertson and Mortimer JJ). The conclusion was not arbitrary, capricious or without common sense, or lacking in an evident and intelligible justification.

Conclusion

49    No jurisdictional error has been established or is otherwise evident in the decision of the Tribunal. Mr King's application for judicial review of the decision will be dismissed.

Associate:

Dated:    4 November 2022