Federal Court of Australia

CWRG v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1382

ORDERS

THE COURT ORDERS THAT:

1.    Subject to these orders, the application is dismissed.

2.    Within 21 days, each party do file any submissions of no more than 3 pages as to whether there should be a confidentiality order made in these proceedings and if so, in what terms, together with any affidavit in support. If a party seeks to be heard orally on that question then the party shall so indicate in the submissions.

3.    Unless otherwise ordered, the question whether there should be any confidentiality order shall be determined on the papers.

4.    The applicant do pay the first respondent's costs of the application to be assessed by a registrar on a lump sum basis if not agreed.

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

REASONS FOR JUDGMENT

COLVIN J:

1    The applicant's son (Visa Applicant) applied for a resident return visa. The application was refused on the basis of an express statutory power to refuse the application if the Minister was not satisfied that the applicant for a visa passed what is described as 'the character test'. The circumstances in which a person will not pass the character test are specified in s 501(6) of the Migration Act 1958 (Cth). They include any instance in which the person applying for a visa has been sentenced to a term of imprisonment of 12 months or more.

2    The applicant (the Visa Applicant's mother) sought a review in the Administrative Appeals Tribunal of the decision to refuse the visa application. It was accepted that she was a party who could seek such a review. The Tribunal affirmed the decision to refuse the visa application.

3    The applicant now seeks review of the Tribunal's decision on the basis of alleged jurisdictional error. It is accepted that the Visa Applicant does not pass the character test. The sole ground relied upon is alleged legal unreasonableness in the Tribunal's decision to exercise the power to refuse the application. Legal unreasonableness is said to arise 'from the cumulative effect of numerous flaws'. A number of alleged flaws are listed in the particulars to the ground of review. A separate ground of review was abandoned.

4    For the following reasons, the applicant has failed to establish legal unreasonableness and the application must be dismissed.

Review for alleged legal unreasonableness

5    The requirement that a statutory power be exercised within the bounds of reasonableness is an implied condition of the statutory conferral of the power that arises by applying common law principles concerning the interpretation of statutes: Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541 at [53] (Gageler J), [80] (Nettle and Gordon JJ), [131] (Edelman J); and Minister for Home Affairs v DUA16 [2020] HCA 46; (2020) 271 CLR 550 at [26] (Kiefel CJ, Bell, Keane, Gordon and Edelman JJ). The precise content of that which is required must be determined as a matter of statutory construction of the relevant provisions. Part of that process will involve a consideration of the nature of the repository of the power: SZVFW at [51]-[53] (Gageler J), [84] (Nettle and Gordon JJ), [134]-[135] (Edelman J). The required threshold of legal unreasonableness is usually high: DUA16 at [26].

6    Whether the decision in a particular case meets the required standard of reasonableness (and is therefore within power) must be decided by the court on review based upon a consideration of the facts of the particular case: SZVFW at [61]-[70] (Gageler J), [84] (Nettle and Gordon JJ), [140]-[141] (Edelman J). It 'requires a close focus upon the particular circumstances of the exercise of the statutory power': DUA16 at [26].

7    In the usual case where the implied threshold is high, legal unreasonableness is a very confined ground of review: SZVFW at [61]-[70] (Gageler J). The authorities as to the nature and scope of review for legal unreasonableness in a case where the threshold is high and where the complaint is about fact finding were summarised in Vo v Minister for Home Affairs [2019] FCAFC 108; (2019) 269 FCR 566 (Derrington, Banks-Smith and Colvin JJ) at [43] in the following terms:

Where a complaint is made that there has been jurisdictional error by the Tribunal by reason of a breach of the implied standard of reasonableness in decision-making and the complaint is concerned with factual findings then the following matters pertain:

(1)    the test for unreasonableness is stringent and extremely confined;

(2)    where reasons have been provided then the reasons are the focal point for assessing whether the decision was unreasonable;

(3)    unreasonableness will not be demonstrated on the basis of a complaint about the weight given to particular evidence or material because determination of the weight to be given to evidence or material is a matter entrusted to the Tribunal;

(4)    it is for the Tribunal to reach conclusions about credibility and unreasonableness is not shown by complaints about credibility findings alone, but may be demonstrated where a finding on credit on an objectively minor matter of fact is used as a basis for rejecting the entirety of the claimant's evidence (a conclusion to be reached with a high degree of caution);

(5)    generally speaking, the Tribunal has the authority to reach conclusions about the inferences that might be drawn from particular evidence or material;

(6)    the Tribunal is not required to refer to every piece of evidence placed before it;

(7)    in many instances, by reason of the nature of the Tribunal's statutory obligation to give reasons, it may be inferred that a failure to refer to a particular matter reflects the Tribunal's view that it was not material to its decision (although the positon may be different where there is a failure to consider a factual issue that is an essential integer of a claim or that would be dispositive;

(8)    mere strong disagreement with factual reasoning does not establish jurisdictional error;

(9)    a decision (not just a part of a decision) which lacks an evident and intelligible justification is unreasonable;

(10)    a decision that no reasonable person could have arrived at is one circumstance in which the decision may be unreasonable, but there may be others - the category is not limited to such instances; and

(11)    there must be an error that is so grave both as to its nature and the significance of its subject matter that it results in a decision that has been reasoned in a manner that it is not authorised.

(citations omitted)

8    Further, as was stated in Tsvetnenko v United States of America [2019] FCAFC 74; (2019) 269 FCR 225 at [85] (Besanko, Banks-Smith and Colvin JJ):

[R]eview for legal unreasonableness concerns the overall character of an administrative decision. Erroneous or illogical reasoning at a particular point in the decision-making process may or may not lead to the conclusion that the decision as a whole fails to conform to the implied statutory standard of reasonableness.

9    The same approach pertains to claims of alleged jurisdictional error characterised in terms of irrationality and illogicality: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [119]; BHD18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 151; (2020) 280 FCR 26 at [29]; and Minister for Immigration and Border Protection v MZZMX [2020] FCAFC 175; (2020) 280 FCR 1 at [23]-[26].

10    Nevertheless, it is possible for the sheer number of errors made in the reasoning process of a decision-maker to lead to the conclusion that an implied statutory requirement for reasonableness as to the making of the decision has not been met: see, for example, the recent decision by Stewart J in WCJS v Minister for Home Affairs [2021] FCA 1093. It was a basis for review that was entertained by all members of the Full Court in BHL19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 94; (2020) 277 FCR 420. In that case Bromwich J, White J agreeing, recognised the possibility of unreasonableness by a series of errors but did not accept that such a case had been made out: at [347]. Wigney J, in dissent, would have upheld the claim of jurisdictional error on such a basis: at [148]-[150].

11    Two matters must be borne in mind. Firstly, as noted by Brennan J in Norbis v Norbis (1986) 161 CLR 513 at 541: 'It is harder to be satisfied that an administrative body has acted unreasonably [than a judicial body exercising a judicial discretion], particularly when the administrative discretion is wide in its scope or is affected by policies of which the court has no experience'.

12    Secondly, where an administrative decision maker articulates in reasons the justification for the exercise of the discretionary power then the justification as articulated must be sufficiently plausible and coherent that, when scrutinised with an eye properly attuned to the first matter, it is a reasonable justification in the sense that it is an evident and intelligible justification for bringing the case within the scope of the discretion. As explained by Allsop CJ, Robertson and Mortimer JJ in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 at [47]:

The 'intelligible justification' must lie within the reasons the decision-maker gave for the exercise of the power - at least, when a discretionary power is involved. That is because it is the decision-maker in whom Parliament has reposed the choice, and it is the explanation given by the decision-maker for why the choice was made as it was which should inform review by a supervising court. … If a supervising court goes outside the reasons given by a decision-maker for another justification for the exercise of power, that court might then be seen to be placing itself in the position of the repository of the power and therefore acting impermissibly. Where there are reasons, either the reasons given by the decision-maker demonstrate a justification or they do not. It would, we think, be a rare case where the reasons demonstrate a justification but the ultimate exercise of the power would be seen to be legally unreasonable.

13    So, where the reasons (that is, the whole of the reasons) given for the exercise of a statutory discretion, upon due examination, are shown to be illogical, irrational or insufficient, an unreasonableness error is demonstrated, namely an exercise of discretion for explicit reasons that provide no reasonable support for the way the discretion has been exercised. However, in considering whether there has been an unreasonable exercise of discretion there must be due regard to the breadth of the discretion and the extent to which it may be guided by matters of policy.

14    In such cases, the complaint is not that the result is unreasonable in the sense that it is outside the range of those outcomes that might have been justified by a reasonable decision-maker, but rather that the result was reached by a process of reasoning that was so unreasonable that it lacked the quality necessary to support the exercise of discretion that the statute required. The deficiency in the reasons shows that requirement that there be a reasonable exercise of the discretion has not been performed. Therefore, 'a decision on factual matters essential to the making of a finding by a decision-maker … can be reviewed on the basis that the reasoning which led to the decision was irrational or illogical irrespective of whether the same conclusion could be reached by a process of reasoning which did not suffer from the same defect': Duncan v Independent Commission Against Corruption [2016] NSWCA 143 at [287] (Bathurst CJ, Beazley P agreeing).

15    Finally, the case for the applicant was advanced on the basis that materiality needed to be demonstrated in addition to unreasonableness. That is not correct: MZAPC v Minister for Immigration and Border Protection [2021] HCA 17 at [33] (Kiefel CJ, Keane, Gageler and Gleeson JJ). As unreasonableness is a ground of review that concerns the whole of the outcome or the whole of the reasons, it embodies a consideration of the consequence of any alleged flaw for the outcome or the overall reasoning process. It either assumes from the unreasonableness of the outcome that something must have gone wrong in a fundamental way or it requires a conclusion that the reasoning as a whole is so flawed that it cannot meet the implied condition of reasonableness that qualifies the valid exercise of the decision making power.

16    The distinction is significant in the present case because certain of the contentions advanced in support of the single ground of unreasonableness advanced by reference to the content of the Tribunal's reasons might have been framed as errors of another kind, perhaps as a failure to comply with the Direction. However, had that course been followed it would have been necessary to demonstrate materiality such that the particular error could have affected the outcome. Unreasonableness, on the other hand, allows for a form of aggregation of flaws in the reasons to support a conclusion that the reasons as a whole do not meet the required implied standard of reasonableness irrespective of whether any one flaw may have been sufficient in and of itself to support that conclusion. It allows for the possibility that a number of errors may combine to make the whole of the Tribunal's reasoning unreasonable. It also recognises that one fundamental factual error or lack of coherence in reasoning though not a basis for some other ground of review for jurisdictional error may amount to such an error because it makes the whole decision or the whole of the reasons unreasonable in the requisite sense.

The nature of the decision to be made by the Tribunal

17    As has been noted, in considering whether there are errors in the reasoning process that might lead to an overall conclusion that a decision did not conform to the reasonableness requirement, there must be due regard to the scope of the decision-making power. In the present case, the power that is said to have been exercised unreasonably is that conferred by s 501(1). It says:

The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.

18    Expressed in those terms, the statute expresses the absence of an affirmative state of satisfaction on the part of the Minister (namely, that the person passes the character test) as a statutory pre-condition to the existence of the Minister's discretionary power to refuse to grant the visa. In the present case, no issue arises concerning the affirmative state of satisfaction. That is to say, it is accepted that the pre-condition was met. The claim made was that the exercise of the discretion to refuse to grant the visa to the Visa Applicant was unreasonable.

19    The ambit of the discretionary power conferred by s 501(1) is informed by the fact that it is enlivened by a state of satisfaction as to whether a visa applicant passes the character test. Therefore, the policy considerations that would be expected to guide the exercise of the discretion would be those that arise from the nature and characteristics of that failure and matters which invite a countervailing view as to their significance in the circumstances of the particular case. The assessment of the significance of those matters in a particular case is entrusted to the Minister, the Minister's delegate or the Tribunal on review (as the case may be). Review for unreasonableness does not involve this Court undertaking any such assessment. To do so would be to usurp the power entrusted to the Executive by the legislation. Rather, it recognises that, ultimately, there is a limit upon the outcomes or the reasoning that may be reasonably undertaken in the exercise of that power. The discretionary power is bounded.

20    The exercise of the discretionary power conferred by s 501(1) may be properly seen to form part of the making of a single overall decision as to whether to grant the visa sought by the applicant: RVJB v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 962 at [25]-[40] (Bromberg J). Therefore, to the extent that unreasonableness might be sought to be demonstrated by reference to the result, it might be said that it is unreasonableness in the overall decision to refuse to grant the visa that must be demonstrated. But the applicant's submissions were not put in that way. Rather, they focussed upon the reasons given by the Tribunal for the exercise of the discretionary power conferred by s 501(1). The Minister's contentions proceeded in the same way by seeking to vindicate the Tribunal's approach to the exercise of the power conferred by s 501(1) on the basis that there was no aspect of the reasons given as to the exercise of the power conferred by s 501(1) that was flawed. Therefore, the case was advanced and answered on the basis that an unreasonable exercise of the discretion conferred by s 501(1) would sustain the conclusion that there was legal unreasonableness in the decision to refuse the visa application. The breadth of the discretion poses difficulty for a case of that kind.

The power to give directions as to the exercise of the discretion

21    Section 499 provides that the Minister 'may give written directions to a person or body having functions or powers under this Act' if the directions are about the performance of those functions or the exercise of those powers. The person or body must then comply with the direction: s 499(2). A failure to comply with a direction made under s 499 may constitute jurisdictional error: FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 19 at [6] (O'Callaghan and Colvin JJ, Derrington J agreeing); and Bochenski v Minister for Immigration and Border Protection [2017] FCAFC 68; (2017) 250 FCR 209 at [65] (Bromwich J, Bromberg and Charlesworth JJ agreeing).

22    The Minister has made a written direction under s 499 concerning the exercise of the power conferred by s 501CA, namely 'Direction No. 90 - Visa refusal and cancellation under section 501 and revocation of mandatory cancellation of a visa under s 501CA' (Direction).

23    Although the Minister acting personally is not bound by the Direction, in the present case the decision was made by a delegate of the Minister and on review, the Tribunal stands in the shoes of the Minister and must make its own decision as to the proper exercise of the discretionary power conferred by s 501(1). In doing so, it must comply with the Direction.

Relevant aspects of the Direction

24    After formal provisions and definitions, the provisions of the Direction commence with a Preamble (para 5). It states that the purpose of the Direction is to guide decision-makers in performing functions or exercising powers under s 501 and s 501CA of the Migration Act. Section 501CA deals with circumstances where the Minister has cancelled a visa as required by s 501(3A). Therefore, those provisions are not relevant in the present case which deals with a decision to refuse an application of a visa on the basis of the discretionary power conferred by s 501(1).

25    The Preamble then specifies certain 'principles' which are said to 'provide the framework within which decision-makers should approach their task of deciding', relevantly for present purposes, whether to refuse an application for a visa. The principles include the following (para 5.2(3)):

The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged 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.

26    In submissions for the applicant, the above provision was referred to as the 'tolerance principle'. Given its character it may be complied with by decision-makers (in the present case, the Tribunal) using the principle and the other principles as a framework or overall structure within which to undertake their deliberations. Unlike other provisions in the Direction (some of which are described below), the tolerance principle is not expressed as a consideration which the decision maker must take into account and attribute weight in the decision-making process. This is a significant aspect to be borne in mind when considering the submissions advanced by the applicant as to alleged flaws in the Tribunal's reasoning developed by reference to the terms of the tolerance principle.

27    After the Preamble, there is Part 2 of the Direction which is headed 'Exercising the discretion'. It begins with the following provision (para 6):

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.

It may be noted that it is the considerations that follow the above provision that are required to be taken into account by the Direction (where relevant). The requirement is that the principles in the Preamble, including the so-called tolerance principle, must inform the manner in which the identified considerations are taken into account. It appears, in effect, that the principles are overarching matters that must guide the manner and circumstances in which the identified considerations are to be taken into account.

28    However, contrary to submissions advanced for the applicant, these aspects of the Direction are not mandatory relevant considerations for the exercise of the discretionary power to refuse a visa application that is conferred by s 501(1) in the particular circumstances specified in that provision. Rather, the requirement imposed by s 499 is to comply with the Direction.

29    Section 499 does not authorise the making of a direction that would require a decision-maker to act contrary to the requirements of the Migration Act: s 499(2). Therefore, the terms of the Direction should be approached on the basis that they are intended to conform to the limits of the power conferred by s 499. As s 501(1) is not hedged by any mandatory considerations, any direction that purported to confine the exercise of that power in a manner that required the discretion to be informed by particular matters and not others irrespective of the circumstances would be inconsistent with the nature of the discretionary power.

30    The above matters are reflected in the manner in which the identified considerations are expressed. In each case, the decision-maker is required to take those considerations into account 'where relevant'. Further, the provisions of the Direction that are concerned with the weight to be given to primary and other considerations operate in circumstances where it is for the decision-maker to identify whether a matter is a relevant and appropriate matter to be brought into account as part of the deliberation as to whether to exercise the power. The Direction states expressly that in applying the considerations identified in the Direction, being 'both primary and other', the decision-maker should give appropriate weight to 'information and evidence from independent and authoritative sources': para 7(1). Further, the direction is that primary considerations 'should generally' be given greater weight than other considerations.

31    In applying the Direction, the Tribunal was required to consider 'whether there was some reason why the general circumstance where primary considerations should be given greater weight than the other considerations should not apply when it came to weighing the various considerations that were relevant to the particular case': FHHM at [35].

32    The Direction then states that 'Informed by the principles …, a decision-maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision' (para 6). It also specifies that primary considerations should generally be given greater weight than other considerations (para 7(2)) and that one or more primary considerations may outweigh other primary considerations (para 7(3)). Taken together these provisions reserve to the decision-maker the evaluative task of allocating weight to the different relevant considerations (save that primary considerations should generally be given greater weight than other considerations).

33    As to whether the relevance of a particular consideration is a matter to be objectively determined (such that a failure to take into account a matter that was considered by a court on review to be relevant might be jurisdictional) or whether it is a matter for the decision-maker, I will proceed on the basis that relevance is to be objectively determined: see my reasoning in KXXH v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1229 at [9]. The consequence is that a failure to take into account (in the sense already explained) a specified consideration that is objectively relevant would be a failure to comply with the Direction (bearing in mind that the issue in the present case concerns unreasonableness, not whether there has been a material failure to comply with the Direction of a kind that would amount to jurisdictional error).

34    In para 8 the primary considerations are specified to be:

(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;

(4)    expectations of the Australian community.

Further provision is made in para 8 concerning each of these primary considerations.

35    Paragraph 9 then deals with other considerations and begins by stating that the other considerations 'must also be taken into account, where relevant, in accordance with the following provisions'. It provides a non-exhaustive list of such other considerations being:

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.

36    Again, the Direction states that the decision maker must take into account a particular 'other consideration' if it is objectively relevant. Further provision is made concerning each of the listed other considerations.

The alleged flaws in the Tribunal's reasons

37    Having regard to the applicant's written submissions as developed orally, there were seven flaws in the Tribunal's reasoning alleged by the applicant (see below).

38    The claim made by the written submissions was that the errors, individually and cumulatively, demonstrated that the decision was legally unreasonable. This was done by submitting that each flaw was legally unreasonable in and of itself without regard to its significance for the character of the reasoning process as a whole. This is not the correct approach. As has been explained, unreasonableness as a ground of review is only established where the outcome or the whole of the reasoning falls short of the implied requirement that the decision-making power be exercised in a manner that is reasonable. It requires attention to the overall outcome or the whole of the reasoning. It is not possible to make out the ground of review by pointing to one or more individual aspects of the reasoning process and seeking to characterise each aspect as being 'unreasonable'. Of course, one reasoning flaw may make the whole decision unreasonable when considered in the context of the whole decision. However, it is necessary to approach the flaws by asking whether they establish an overall failure to conform to the reasonableness requirement which applies to whole outcome or overall reasoning, not to individual aspects.

39    In oral submissions and further written submissions for the applicant it was made clear that the claim made was that the alleged flaws 'taken cumulatively' established the ground of legal unreasonableness.

40    There was no claim that the usual high threshold to be met in such cases did not apply to the decision that the Tribunal was required to make concerning the visa application of the Visa Applicant, in particular the exercise of the power to refuse the application that was conferred by s 501(1).

41    The alleged flaws in the Tribunal's reasons were to the following effect:

(1)    the Tribunal erred in its application of the tolerance principle when it came to taking into account the primary consideration of the expectations of the Australian community;

(2)    the Tribunal was wrong to only apply the tolerance principle to the expectations of the Australian community because it should have applied the tolerance principle when considering the other primary considerations;

(3)    the Tribunal erred in finding that there was a trend of increasing seriousness in the Visa Applicant's offending;

(4)    the Tribunal erred in its approach to the cumulative effect of the Visa Applicant's offending;

(5)    the Tribunal erred in its reasoning concerning the nature of the Visa Applicant's more serious offending when it came to its analysis of the 'head sentence';

(6)    the Tribunal found that it was relatively rare for a sentencing court to impose head custodial terms of the length of three years at a relatively early stage of offending when there was no evidence upon which the Tribunal could make that finding; and

(7)    the Tribunal erred in its assessment of the risk of the Visa Applicant reoffending in the future.

42    After oral submissions, the applicant was given leave to file further written submissions on certain points. In those submissions, the applicant made clear that its case was not that there was a serious error of fact or an accumulation of less serious errors of fact, but rather that there were a number of flaws in reasoning which, taken together, led to the conclusion that the process of decision-making was legally unreasonable.

The issues for determination

43    Having regard to the way in which the case was put by the applicant it is necessary to consider whether each of the matters advanced is properly regarded as a flaw in reasoning and then to consider the extent to which any flaws that are established might sustain the conclusion that the decision to refuse the visa application was legally unreasonable.

Alleged flaw (1): Misapplication of tolerance principle to primary consideration (4)

44    As has been noted, the Direction required the Tribunal to take into account the strength, nature and duration of the Visa Applicant's ties to the Australian community as a primary consideration, where relevant (being part of primary consideration (4)). Further, in doing so it was required to be informed by principles that included the tolerance principle.

45    In its reasons concerning primary consideration (4), the Tribunal concluded that the offending of the Visa Applicant gave rise to an Australian community expectation that the Australian government can and should refuse to grant the visa (para 147). It then turned to whether there were any factors which modified the Australian community's expectation and identified the tolerance principle as informing the answer to that question (para 148). It then reasoned as follows (paras 149-151):

The [Visa] Applicant was a permanent resident in this country and has spent just over half of his life here, until he returned to Fiji in November 2018. During that time, he has made contributions to the Australian community. During his time on parole, he worked as a sales manager for a resort company. He has also made community contributions through his work for a charity organisation raising funds for those affected by cerebral palsy. It follows that the Australian community does not have a low tolerance of this [Visa] Applicant's conduct as they would if he held a limited stay visa, or had been participating in or contributing to the community for a short period of time.

[The tolerance principle] further provides that the Australian community may afford a higher level of tolerance to this [Visa] Applicant's criminal or other serious conduct if (1) the [Visa] Applicant has lived in the Australian community for most of his life, or (2) he has lived here from a very young age. At best, only the second element has possible application to the [Visa] Applicant. He lived in Australia, on a predominant basis, from January 1995 to March 2000, and from June 2008 to November 2018. Therefore, only the second of these elements is of assistance to the Applicant.

Thus, I am of the view that the Australian community's expectations are not fundamentally modified by [the tolerance principle].

46    For the applicant it was submitted that it was implicit in the above reasoning that the Tribunal adopted an interpretation of the expression 'for most of his life' that did not encompass the factual circumstances of the Visa Applicant who had spent more than half his life in Australia. This was said to be wrong as a matter of interpretation of the language used in the Direction to state the tolerance principle.

47    Reliance was placed upon the reasoning of Markovic J in Shrestha v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 802 at [32] where her Honour said (of the same words used to express the same principle in an earlier form of direction concerning the exercise of the power under s 501(1)):

The phrase 'most of their life' means what the words ordinarily convey. That is that a higher level of tolerance may be afforded to non-citizens who have spent most of their life in Australia. Significantly, the clause expressly refers to two distinct, albeit potentially overlapping, categories of non-citizens to whom a higher level of tolerance may be afforded: those who have lived in the Australian community for 'most of their life'; and those who have done so 'from a very young age'. If a higher level of tolerance were also to be afforded to non-citizens who had lived in the Australian community for most of their adult life, one would expect the clause to contain a similar express reference to that category of non-citizens. The absence of any such express reference is telling. There is no reason or cause to interpret the reference to 'most of their life' to mean 'most of their adult life' whether because of the ordinary meaning of the clause or as a matter of purposive construction.

48    It was submitted that according to ordinary usage 'most' means majority or greatest quantity, recognising that the term has a semantic breadth that encompasses 'nearly all'. It was said that the use of 'most' to mean 'nearly all' was a more colloquial use of the word and should not be accepted as the meaning of the word in the tolerance principle.

49    When used in a context that connotes measurement of part of something (relevantly for present purposes, most of the life of a person), the word most usually means the greatest part or the majority. However, it is not a precise term and context is important.

50    As is usually the case, in considering what is meant by a word it must be considered in context, understanding that the meaning conveyed by words requires particular regard to the sentence in which they are used. As a means of communicating meaning, written words are constructed into sentences which must themselves be considered in the context of the writing as a whole. In the present case, the word 'most' is used in the phrase 'lived in the Australian community for most of their life', a phrase that is expressed in contra-distinction to a case where a person has participated in or contributed to the Australian community 'only for a short period of time'. Thus, the tolerance principle as expressed in the Direction concerns how long a person has 'lived in the Australian community'. According to the principle, higher tolerance applies to those 'who have lived in the Australian community for most of their life, or from a very young age'.

51    Whether a person fits within the description of a person who has lived in the Australian community for most of their life is not determined simply by counting months spent in different places. For example, a person who has lived in many countries for short periods of time but has spent more time in Australia than anywhere else would not usually be described as a person who has spent most of their life in Australia. Likewise, a person who has spent relatively equal amounts of time in two different places would not ordinarily be described as someone who has spent most of their life in the place where they had lived for longer measured by a narrow majority. Rather, in describing a place as being the place where a person has spent most of their life, the meaning conveyed would be that a clear majority of the person's life has been spent in that place.

52    In my view, what is stated by the principle is not a requirement that a higher level of tolerance of a person's criminal or other serious conduct be afforded to a person simply on the basis that they have lived more than half the duration of their life in Australia in circumstances where they have lived the rest of their life in another place.

53    In any event, the use of the words 'may afford a higher level of tolerance' in the second part of the tolerance principle, meant that it was a matter for the Tribunal to form a judgment as to whether and if so in what way, in all the circumstances, the tolerance principle (as part of the framework to inform the manner in which the Tribunal would take into account the primary and other considerations) might guide the process of taking the specified considerations into account.

54    The tolerance principle is a statement of a normative principle to the effect that the Australian community may afford a higher tolerance for offending by those non-citizens who have lived in the country for most of their life or from a very young age. It ameliorates the deeming effect of the preceding principle stated in para 5.2(3) of the Direction, which is a principle to the effect that the Australian community expects its government to refuse entry to people who engage in conduct that raises serious character concerns: as to which see YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 at [76] (Mortimer J); FYBR v Minister for Home Affairs [2019] FCAFC 185; (2019) 272 FCR 454 at [80] (Charlesworth J), [104] (Stewart J); and CKL21 v Minister for Home Affairs [2022] FCAFC 70 at [29]-[30].

55    In that context, the evident reasoning pathway concerning the significance of how long the Visa Applicant had lived in Australia was as follows:

(1)    the Visa Applicant had spent just over half his life in Australia until he returned to Fiji;

(2)    it follows from that finding that the Australian community does not have the low tolerance for his offending that it would for a person who had been in Australia on a short stay visa or for a short period of time;

(3)    the Australian community would afford a higher level of tolerance to offending by those who (a) had lived in the Australian community for most of their life; or (b) had lived here from a very young age;

(4)    the first element did not apply (meaning, implicitly, that spending just over half his life in Australia was not enough for the Visa Applicant to be described as having lived most of his life in Australia);

(5)    the second element had possible application; and

(6)    therefore, the tolerance principle had no fundamental effect one way or other on the approach to primary consideration (4).

56    Measured in months, the Visa Applicant had spent about half his life in Australia and half in Fiji. By the time of the Tribunal's decision, the Visa Applicant had spent 15 years and 6 months of his life in Australia and 14 years and 8 months outside of Australia. The position was slightly more in favour of Australia if the time of his visa application was used. Therefore, the factual summary adopted by the Tribunal to the effect that the Visa Applicant has spent just over half his life in Australia was correct.

57    Having regard to my earlier reasoning, it was not inconsistent with the meaning of the Direction for the Tribunal to conclude that a person who had spent about half their life in each of two countries was not a person who had spent most of their life in Australia.

58    The Tribunal correctly identified that the Visa Applicant had lived in Fiji until he was 4 years of age, lived in Australia as a young child (between the ages of 4 and 8), then returned to Fiji until he came back to Australia as a 17 year old. It identified the 'second element' as being the only element of assistance to the Visa Applicant. It described the position as being that 'at best' only the second element had 'possible application'.

59    The Tribunal then concluded in respect of the tolerance principle, that the Australian community's expectations (being that entry should be refused to a person who has engaged in conduct that raises serious character concerns) 'are not fundamentally modified' by the tolerance principle. This was a conclusion that could not be described as inconsistent with the terms of the Direction concerning the tolerance principle. Nor could it be described as illogical. It was an analysis of the circumstances of the Visa Applicant that was reasonably open to the Tribunal.

60    Further, the tolerance principle was not itself a matter to which the Tribunal was required to have regard if relevant. Rather, as has been explained, it was a principle that was to inform the task of taking into account those matters which the Direction required the Tribunal to take into account in deciding whether to exercise the discretion conferred by s 501(1). It was a principle which itself was expressed in terms that required an evaluation as to whether the higher level of tolerance 'may' in all the circumstances be afforded. In those circumstances, there was no evident flaw in the Tribunal considering the principle in the manner in which it did and reaching a conclusion that for the purposes of primary consideration (4), the tolerance principle did not fundamentally modify the deeming aspect of the earlier principle to the effect that there was an expectation that entry should be refused if a visa applicant had engaged in conduct that raised serious character concerns.

Alleged flaw (2): Failure to apply the tolerance principle to other considerations

61    As has been noted, the tolerance principle forms part of five principles stated in para 5.2 of the Direction. Those five principles provide a framework within which decision makers should approach their task. Further, in taking into account the primary and other considerations, decision makers are required to be informed by those principles 'where relevant to the decision'.

62    The only reference to the tolerance principle in the Tribunal's reasons concerning the primary considerations was in the context of primary consideration (4) which concerned the expectations of the Australian community.

63    However, on the present application, no submission was advanced as to how the tolerance principle might have been brought to bear upon primary considerations (1), (2) or (3). The considerations are expressed in terms that do not invite amelioration by the tolerance principle. They are concerned with evaluating the nature and seriousness of past criminal offending, the risk to the Australian community should the non-citizen re-offend, whether the offending involved family violence and the best interests of minor children in Australia affected by the decision.

64    As to the other considerations, only two were found by the Tribunal to be relevant. There was no criticism of the Tribunal's decision to confine its consideration to those two considerations. The two that were considered were the impact on victims and links to the Australian community. It is difficult to see how an assessment of impact on victims might be affected by the tolerance principle. The focus of that consideration is upon the victims themselves, not the views of the broader community.

65    As to links to the Australian community, the Direction itself requires regard to 'how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child' (para 9.4.1). The Tribunal found that this aspect of the Direction did not apply because the decision it had to make was whether to refuse a visa application by exercising the power conferred by s 501(1). That conclusion was correct because the Direction expresses that requirement as applying:

Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa.

66    However, the Tribunal went on to confine its consideration of community ties in Australia to the question whether the Visa Applicant had immediate family members in Australia and whether there was an impact upon them. It did not consider whether there were broader links to the Australian community that the Visa Applicant had developed from his time in Australia that might amount to another consideration that counted against exercising the power to refuse the visa application.

67    As to the significance of the impacts on family members, the Tribunal concluded (paras 169-170):

The impacts on the [Visa] Applicant's mother and brother will to an extent, be significant in the event he is not allowed to enter Australia. Despite the [Visa] Applicant's history of offending, and the [Visa] Applicant's intra-family issues with his mother consequent upon the termination of her relationship with his biological father, both his mother and his brother can be safely found to remain open to the prospect of him returning to Australia.

I am of the view that the impact on the [Visa] Applicant's immediate family - specifically his mother and brother - militates moderately, but not determinatively, against exercising the discretion to grant the visa.

68    There was no reference to other connections that might have arisen from the fact that the Visa Applicant had spent about half his life in Australia and had last lived in Australia about three years before his application.

69    There is merit in the claim that the fact that the Direction required the Tribunal to have regard to how long a person had lived in Australia, including as a young child, when dealing with a case where the issue was whether a visa should be cancelled (or a cancellation revoked) did not mean that such matters were not to be considered in a case where the question was whether to refuse a visa.

70    However, in order for a failure to have regard to such matters to amount to a flaw that might support a conclusion of unreasonableness as to the reasons as a whole, it is necessary, at least, to point to significant matters that were advanced to which there was no regard. The submission made was that there were two matters 'engaged by the facts' that the Tribunal as an inquisitorial body ought to have considered. They were said to be the reference in the material to wider family links and a reference in the material to the Visa Applicant's work history 'including in areas with a charitable focus'. In short, the contention was that the Tribunal ought to have identified those matters from two points in the material in circumstances where they were not advanced by the Visa Applicant himself as being of particular significance and it should have investigated their significance.

71    In my view, a complaint of that kind does not raise a real flaw in the reasons. If indeed the point was said to be significant then a failure to undertake inquiry as to a significant matter would itself amount to reviewable error. There was no submission that sought to expose the real significance that might have flowed if the Tribunal had not unduly confined its consideration to links to immediate family members.

72    In all the circumstances of the present case, it has not been demonstrated that there was any flaw in the Tribunal's reasons because they only considered the tolerance principle in the context of primary consideration (4).

Alleged flaw (3): Trend of offending

73    The Direction required the Tribunal to consider the nature and seriousness of the Visa Applicant's criminal offending. In doing so, the Tribunal was required to have regard, amongst other things, to 'whether there is any trend of increasing seriousness'.

74    It was submitted that the offending by the Visa Applicant occurred in three 'blocks'. First, offending in 2010, being stalking, unlawful striking and common assault. The second between August to November 2012, being fraud, armed robbery, burglary, breach of bail and other offences. The third in 2016 and 2017 being contraventions of a domestic violence protection order.

75    The Tribunal reasoned that there was a discernible trend of increasing seriousness in the offending (para 46-48). It noted the earlier convictions for stalking and common assault in 2011 and then the much more serious offending for which he was dealt with following a plea of guilty in 2015. This was properly characterised by the Tribunal as an increase in seriousness.

76    Then the Tribunal reasoned: 'Perhaps a further aspect of increasing seriousness of the Applicant's offending relates to his offending against women' (para 47). It then compared the offending in 2011 and his conviction from breaching a domestic violence protection order in 2018. This was described as 'some measure of increasing seriousness with regard to his offending against women'.

77    The Tribunal then concluded (para 48):

Having regard to the totality of the [Visa] Applicant's offending history and its manner of evolution from 2010-2018, it can be safely found that, while not necessarily frequent, his offending, viewed as a whole, does contain a trend of increasing seriousness.

78    The Tribunal's reasoning was not flawed. It was undertaken by reference to facts which are not disputed. Its characterisation of those facts was a view of those facts which a decision-maker could reach.

Alleged flaw (4): Cumulative effect of offending

79    A further matter to which the Tribunal was required to have regard in considering the seriousness of the Visa Applicant's offending was 'the cumulative effect of repeated offending'.

80    The Tribunal found that there were four cumulative effects of the Visa Applicant's repeat offending, namely:

(1)    'he has failed to develop a sufficiently reliable moral boundary between himself and offences committed against women' (para 50);

(2)    his offending 'betrays a failure to develop any measure of respect for the property of other people' (para 51);

(3)    he 'has demonstrated little or no hesitation to impose at least some measure of violent element to a desired outcome' (para 52); and

(4)    'his offending history is redolent of a failure to observe lawfully made orders and directions compelling him to do something or refrain from doing something' (para 53).

81    It was submitted that the reasoning adopted by the Tribunal as to the cumulative effect of the offending was 'absolutist' and 'not logically sustainable'. It is difficult to understand what is meant by these characterisations. The Tribunal was required to evaluate what it considered to be the cumulative effect of the offending. The effects that it identified were capable of being reasoned from the history of offending. To the extent that the complaint is that the Tribunal did not identify actual consequences for the community and evaluate the cumulative effect of those consequences, the effects identified have within them the implicit recognition of such consequences.

82    No flaw has been demonstrated in this aspect of the Tribunal's reasons.

Alleged flaws (5) and (6): Reasoning concerning 'head sentence'

83    In considering the sentences that had been imposed upon the Visa Applicant for the purpose of evaluating the seriousness of his offending, the Tribunal reasoned as follows (paras 42-43):

The important part of his sentencing history is, to my mind, the reality that in the course of just four court dates, the [Visa] Applicant has compiled head custodial terms of five years and three months and incurred fines in a sum exceeding $1500. In terms of head custodial sentences, it is relatively rare for a sentencing court to impose head custodial terms of the length of three years at a relatively early stage during an offender's history. As against that, there is the reality that he was immediately released on parole upon being sentenced to that head custodial term of three years. For the purposes of weight allocable to this sub­ paragraph (c), it should be noted that the three years imposed for the robbery with actual violence whilst armed must be excluded. There remains, of course, two years and three months of head custodial time that was imposed for the burglary and fraud offending. Those two offences can be taken into account for the purposes of this sub-paragraph (c).

Regardless of the length of any criminal history, custodial terms are viewed as a reflection of the objective seriousness of an applicant's offending. The imposition of a custodial term is regarded as the last resort in any reasonably and correctly applied sentencing process. I am of the view that the sentences imposed by the courts for the crimes of this [Visa] Applicant do militate in favour of a finding that his offending has been of at least a serious nature. While I have referred to the above-mentioned fines imposed on the [Visa] Applicant, I do not consider that those types of punishments tend to suggest the associated offences were at a lower level of seriousness.

84    It was submitted that the Tribunal's reasons involved a misunderstanding of the nature of the sentences that had been imposed.

85    It is necessary to place the above reasoning in the overall context of the Tribunal's reasons. At this point, the Tribunal is concerned with a part of the Direction that identifies matters to which the Tribunal must have regard in considering the 'nature and seriousness' of the Visa Applicant's offending. The Direction lists certain crimes that are considered to be serious. Then, for other crimes, it requires the Tribunal to have regard to the sentence imposed for those crimes.

86    In the present case, there was a single occasion when a custodial sentence was imposed. The terms of imprisonment imposed were 3 years (robbery with actual violence whilst armed); 2 years (burglary and unlawful use of a motor vehicle) and 3 months (fraud). The Tribunal found that the armed robbery offence was one of the listed offences. Therefore, at the point in the Tribunal's reasons that is said to be flawed, it was concerned with considering what could be concluded from the other offences. It had to do so in circumstances where the sentence imposed for all the offences required those sentences to be served concurrently. The concurrent aspect of the sentences had been noted by the Tribunal (para 19).

87    Importantly, the Tribunal introduced its consideration by saying that it was 'pertinent to provide an overall picture of the Applicant's sentencing history …in terms of number of offences committed'. That led into the finding that the Visa Applicant had compiled head custodial terms of 5 years and 3 months. It appears that the figure was derived by adding the three sentences. The use by the Tribunal of the terminology 'head custodial terms' is somewhat unclear because the Tribunal appears to use it to refer to the term of 5 years and 3 months as well as to the total concurrent term of 3 years. However, viewed as a whole, the passage of reasoning seems to use the term to refer to the total of the three terms of imprisonment.

88    In the above circumstances, two alleged flaws are advanced. First, it is said that the Tribunal misdescribed the 'head custodial terms'. It is said that the Tribunal misdirected itself as to the nature of the sentences because it treated the Visa Applicant as having been sentenced to a 'head sentence' of 5 years and 3 months where the overall sentence for the offending was 3 years. In effect, it is said that the Tribunal misunderstood the nature of the concurrent sentence that had been imposed.

89    However, there is no reason to conclude that the Tribunal meant to refer to what is usually meant by a head sentence where a sentence is imposed for multiple offences, nor that it did not understand the sentence that was imposed. Nor can it be concluded that the Tribunal did not understand what was meant by a concurrent sentence. It had specifically noted that the terms were to be served concurrently. It is tolerably clear that the Tribunal did not understand that the Visa Applicant was required to serve a term of more than 3 years. So much appears from the statement that it was rare for a sentencing court to impose head custodial terms of 3 years 'at a relatively early stage of an offender's history'.

90    It may be accepted that there is some confusion. However, the ultimate conclusion reached by the Tribunal is that the sentences imposed supported a conclusion that the offending was serious. It could not be said that such a conclusion was unreasonable in all the circumstances.

91    The second flaw alleged is that the Tribunal reached a conclusion about it being rare to impose a custodial term of 3 years at an early stage of offending. It was submitted that there was no evidence upon which such a finding may be made. It was not suggested that the finding was incorrect as an observation. Rather, the complaint was that the reasoning lacked an evident and intelligible justification.

92    An administrative tribunal is not confined to material that is produced to it. The Tribunal undertakes work in which it is exposed to the way in which people are sentenced. It may be expected to gain an understanding of sentencing practice. The reasoning was of a kind that might be undertaken by a member of a Tribunal who has occasion in the context of hearing cases regularly to have regard to sentences imposed on various individuals. It was not suggested that the observation was wrong. Nor was it suggested that there was any breach of procedural fairness in relying upon information obtained in that way.

93    I am not persuaded that the alleged flaw has been established.

Alleged flaw (7): Assessment of risk of reoffending

94    Paragraph 8.1.2(2) of the Direction identified matters to which the Tribunal was required to have regard in assessing the risk that may be posed by the Visa Applicant to the Australian community. It was contended that there were three errors by the Tribunal in undertaking this assessment, namely:

(1)    it found that the Visa Applicant had an offending history of almost a decade when his offending at most was for a period of seven years;

(2)    it found that the offending history of the Visa Applicant involved two crimes of a violent nature against women when that was not the case; and

(3)    it found that the Visa Applicant failed to develop and establish a moral boundary between himself and the legal rights of women when the sentencing magistrate for an offence in sending offending messages said that his conduct did not involve threats and appeared to be emotional outpourings about the demise of the relationship.

95    As to (1), the relevant passage in the reasons was as follows (para 66):

Of particular concern are his offences involving women. Across an offending history running for almost a decade, it is not unsafe to find that he has failed to develop and establish any kind of moral boundary between himself and the lawful rights of women. There is a conviction for unlawful stalking from as long ago as May 2011. There followed his cowardly robbery upon an unwitting and innocent shop assistant female victim after assuring her he had no hesitation to use a 20cm knife to achieve his objective (in 2015). As recently as February 2018, there is the abovementioned contravention of a DVO which had been put in place to specifically protect the aggrieved female victim.

96    The reference to May 2011 appears to be an error. The stalking offence concerned conduct between May and October 2010 for which the Visa Applicant pleaded guilty in 2011. The breach of the DVO related to conduct in November 2016 to June 2017 to which the Visa Applicant entered a guilty plea in February 2018.

97    So, the description 'almost a decade' is not supported in fact by the material. Nevertheless, the offending that the Tribunal had in mind is clearly identified. The complaint is about factual error of a kind that could not be characterised as having real significance for the decision as a whole. Indeed, no attempt was made to explain why it had such significance.

98    As to (2), the Tribunal, when dealing with the Australian community's expectations, did say in its reasons: 'I note my findings that the [Visa Applicant] has been convicted of two crimes of a violent nature against a woman' (para 146). There was a footnote to earlier reasoning about a common assault offence and the robbery offence together with a statement that: 'Both offences involved female victims'.

99    It was submitted that 'it is not legally reasonable to characterise the offence of common assault as a crime of a violent nature against women, in circumstances where the [Visa Applicant's] sworn, and uncontested, oral evidence was that in a nightclub a male friend of the complainant pushed him, then the [Visa Applicant] pushed the male friend, who then collided with a female'. The submission fails to take account of the Tribunal's reference to the evidence of the Visa Applicant when cross-examined as follows:

[Question] … a psychiatrist, said that when he interviewed you, you explained the situation as you had dated a women, when you broke up you didn't handle it well, you became angry with her when she didn't return your calls and then you saw her at a night club and had a go at her and one of her friends intervened and an altercation took place, is that right?

[Answer] Yes, that would be the gist of it.

100    There was further evidence in which the applicant gave a version of events that accords more closely with the submission. In the circumstances, the submission is no more than a complaint about the factual finding in circumstances where there was evidence given which could support the Tribunal's conclusion about the nature of the common assault.

101    A further submission was advanced to the effect that the finding about the offence of common assault was inconsistent with a finding made at another point in the reasons concerning the nature of that offending. The whole of that part of the reasoning was as follows (para 46):

Viewed most favourably for the [Visa] Applicant, the circumstances of his commission of the common assault may be said to be more in the realm of an affray or, perhaps, some 'push and shove' while people were otherwise distracted or influenced in a nightclub.

102    It may be noted that this finding was expressed by important qualifying opening words.

103    I am not satisfied that there is any real inconsistency between the finding about which there is a complaint (at para 146) and the other findings.

104    As to (3), the finding about a failure to develop and establish a 'moral boundary' when it came to the rights of women could not be said to be without any support in the evidence. It might be criticised as a generalisation that had a weak foundation given that it appeared to be based on two incidents of offending that were many years apart. Together with the overstatement of the length of offending, this particular aspect of the reasoning may be criticised as going beyond what may be concluded reasonably from the evidence.

105    However, the fact finding task is entrusted to the Tribunal and there was no suggestion that the reasons as a whole had a flaw of that character.

Conclusion as to alleged legal unreasonableness

106    In the result, I have accepted only two aspects of the flaws that were alleged. Firstly, the Tribunal erred in its view that the terms of para 9.4.1 of the Direction meant that it was confined to considering the consequences for immediate family members when considering ties to the community in Australia in the case of an exercise of the power conferred by s 501(1). However, I have found that it has not been demonstrated that there was error in failing to investigate such other matters.

107    Secondly, the Tribunal's reasoning as to a failure on the part of the Visa Applicant to develop a moral boundary might be criticised as a generalisation that could not reasonably be concluded from the available material.

108    Having regard to what is required to demonstrate unreasonableness, I am not satisfied that these two matters in the context of the reasoning as a whole are sufficient to make out the alleged ground.

Use of pseudonym

109    In the Tribunal, confidentiality orders were made pursuant to s 35 of the Administrative Appeals Tribunal Act 1975 (Cth) by which pseudonyms were adopted for the applicant, the Visa Applicant and his father. Proceedings were commenced in this Court by the applicant adopting her pseudonym. Therefore, an issue arises as to whether it is appropriate for confidentiality orders to be made in respect of these proceedings. Any such order would need to be justified by reference to the Court's power to be make such orders under s 37AF of the Federal Court of Australia Act 1976 (Cth). In the circumstances, I will provide for the parties to be afforded an opportunity to make written submissions as to any such order and consider whether any such order should be made on the papers. In the meantime, I will continue the course of publishing these reasons with the adoption of the pseudonym for the applicant and without identifying the Visa Applicant or his father. This is adopted as an interim measure only.

Conclusion and orders

110    For reasons that have been given, the ground of review has not been made out. Therefore, the application must be dismissed. It will be dismissed on the basis that there remains a question as to any order for confidentiality. There is no reason suggested why costs should not follow the event. In accordance with the usual practice, those costs should be assessed on a lump sum basis by a registrar if not agreed. There should be orders accordingly.

A final note

111    The hearing in this matter was conducted before another judge of this Court. After the decision in the matter was reserved, it became necessary to allocate the matter to a different judge. In the circumstances, the parties were asked whether they sought a further oral hearing or whether they were content for the matter to proceed to final determination on the basis that I would consider the written submissions filed and read and consider the transcript of the oral hearing. Both parties indicated that they were content with the latter course. I have proceeded on that basis.

Associate:

Dated:    21 November 2022