Federal Court of Australia

Pillay v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1535

ORDERS

THE COURT ORDERS THAT:

1.    The application for judicial review is dismissed.

2.    The applicant pay the first respondent’s costs of the application.

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

REASONS FOR JUDGMENT

RANGIAH J:

1    On 21 February 2022, the second respondent (the Tribunal) affirmed a decision of a delegate of the first respondent (the Minister) not to revoke the cancellation of the applicant’s visa.

2    The applicant has applied for judicial review of the Tribunal’s decision.

3    I will describe the factual and procedural background and the legislative scheme before considering the parties’ submissions.

Background

4    The applicant is a citizen of South Africa who arrived in Australia in 2008, at the age of 21. He is now 34 years old.

5    The applicant has an extensive criminal record and traffic history in Australia. His offending includes unlawful stalking, fraud, drug possession and driving while intoxicated by alcohol and drugs. On 10 April 2019, the applicant was convicted in the Magistrates Court of Queensland of unlawful use of a motor vehicle and was sentenced to 15 months’ imprisonment, wholly suspended. On 27 March 2020, the applicant was re-sentenced to 14 months’ imprisonment. That led to the cancellation of the applicant’s visa on 4 August 2020 under s 501(3A) of the Migration Act 1958 (Cth) (the Act).

6    On 5 August 2020, the applicant made representations to the Minister seeking revocation of the cancellation decision. On 26 November 2021, the Minister’s delegate refused to revoke that decision.

7    On 29 November 2021, the applicant applied for review of the non-revocation decision to the Tribunal. On 21 February 2022, the Tribunal decided to affirm the delegate’s decision.

8    In its reasons, the Tribunal acknowledged that it was bound to comply with, “Direction No. 90 - Visa Refusal and Cancellation under Section 501 and Revocation of a Mandatory Cancellation of a Visa under Section 501CA” (Direction 90).

9    The Tribunal first determined that it was not satisfied that the applicant passed the character test under s 501(6) of the Act. That finding is not challenged.

10    The Tribunal then considered whether, within s 501CA(4)(b)(ii) of the Act, there was “another reason” why the cancellation decision should be revoked. The Tribunal determined, in summary, that:

    the primary consideration of the protection of the Australian community weighed heavily against revocation of the cancellation decision;

    the primary consideration of the expectations of the Australian community weighed heavily against revocation;

    the primary consideration of the best interests of minor children in Australia weighed to a limited extent in favour of revocation;

    the “other consideration” of the extent of impediments if removed weighed moderately in favour of revocation;

    the “other consideration” of links to the Australian community weighed heavily in favour of revocation;

    the factors weighing against revocation outweighed those in favour of revocation; and

    there was not “another reason” to revoke the cancellation of the applicant’s visa.

11    The Tribunal accordingly affirmed the delegate’s decision.

The application for review

12    The applicant’s grounds of review are expressed in his Amended Originating Application as follows:

1.    In purporting to discharge the statutory task required by the Migration Act 1958 (Cth) (Act) – in particular, s 501CA(4), read with s 499(2A) and Direction 90 issued under s 499(1) (Direction 90) – the Administrative Appeals Tribunal (Tribunal) erred jurisdictionally by denying the Applicant procedural fairness.

2.    In purporting to discharge the statutory task required by the Act – in particular, s 501CA(4), read with s 499(2A) and Direction 90 issued under s 499(1) – the Tribunal erred jurisdictionally by failing to read, identify, understand and/or evaluate the Applicant’s representations clearly articulating, or squarely raising, the claim that his links to the Australian community through Child H (whether or not she was his biological daughter) and her mother provided ‘another reason’ why the cancellation decision should be revoked.

3.    In purporting to discharge the statutory task required by the Act – in particular, s 501CA(4), read with s 499(2A) and Direction 90 issued under s 499(1) – the Tribunal erred jurisdictionally in its purported consideration of the impediments the Applicant may face if removed by:

a.    failing to read, identify, understand and/or evaluate the Applicant’s representations clearly articulating, or squarely raising, the claim that the impediments he would face in obtaining employment by reason of his drug dependence disorder provided ‘another reason’ why the cancellation decision should be revoked; and/or

b.    misunderstanding and/or misapplying paragraph 9.2 of Direction 90 so as to discount the particular impediments that the Applicant would likely face in respect of ‘healthcare’, ‘government income support’ and/or ‘the impact of a criminal record on employment prospects’ on the basis that these were ‘challenges faced by the general population’.

4.    In purporting to discharge the statutory task required by the Act – in particular, s 501CA(4), read with s 499(2A) and Direction 90 issued under s 499(1) – the Tribunal erred jurisdictionally by reasoning in a way that was illogical, irrational or otherwise unreasonable.

(Particulars omitted.)

The legislative scheme

13    The applicant’s visa was cancelled pursuant to s 501(3A) of the Act. That section requires the Minister to cancel a visa if the Minister is satisfied that the visa holder does not pass the character test because, relevantly, the person has been sentenced to a term of imprisonment of 12 months or more, and is serving a sentence of imprisonment on a full-time basis in a custodial institution.

14    The delegate’s decision not to revoke the cancellation decision was made under s 501CA(4) of the Act, which provides:

(4)    The Minister may revoke the original decision if:

(a)    the person makes representations in accordance with the invitation; and

(b)    the Minister is satisfied:

(i)    that the person passes the character test (as defined by section 501); or

(ii)    that there is another reason why the original decision should be revoked.

15    The applicant’s application to the Tribunal for review of the delegate’s decision was made pursuant to s 500(1)(ba) of the Act.

16    Section 43(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) empowers the Tribunal to affirm or vary the decision under review, or set it aside and substitute another decision or remit the matter for reconsideration. Section 43(2) requires the Tribunal to give reasons for its decision. Under s 43(2B), where the Tribunal gives its reasons in writing, the reasons shall include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based.

17    Section 500(6H) of the Act provides, relevantly, that the Tribunal must not have regard to any information presented orally in support of the person's case unless the information was set out in a written statement given to the Minister at least two business days before the Tribunal holds a hearing (other than a directions hearing) in relation to the decision under review. Section 500(6J) is an equivalent provision applying to documents submitted in support of the person's case, although the provision does not apply to documents given to the person or Tribunal under s 501G(2) or s 500(6F).

18    Section 500(6L) of the Act provides, relevantly, that if the Tribunal has not made a decision under s 43 of the AAT Act within 84 days after the day on which the person was notified of the decision under review in accordance with s 501G(1), the Tribunal is taken, at the end of that period, to have made a decision under s 43 of the AAT Act to affirm the decision under review.

19    The jurisdiction of the Federal Court of Australia to review the Tribunal’s decision arises under s 476A(1) of the Act.

20    Section 499(1) of the Act allows the Minister to give written directions to a person or body having functions or powers under the Act if the directions are about the performance of those functions or the exercise of those powers. Direction 90 was given by the Minister under s 499(1) of the Act. Section 499(2A) requires a person or body to, “comply with a direction under subsection (1)”. In carrying out its function under s 43 of the AAT Act of reviewing the delegate’s decision, the Tribunal was required to comply with Direction 90.

21    Paragraph 6 of Direction 90 provides, relevantly, that a decision-maker (a person or body making a decision under s 501CA of the Act) must take into account the considerations identified in paras 8 and 9 where relevant to the decision.

22    Paragraph 8 states that the following are primary considerations:

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

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

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

(4)    expectations of the Australian community.

23    Paragraph 8 goes on to explain the primary considerations and specify matters that decision-makers should or must consider.

24    Paragraph 8.3 provides:

8.3    Best interests of minor children in Australia affected by the decision

(1)    Decision-makers must make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is, or is not, in the best interests of a child affected by the decision.

(2)    This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to refuse or cancel the visa, or to not revoke the mandatory cancellation of the visa, is expected to be made.

…

(4)    In considering the best interests of the child, the following factors must be considered where relevant:

a)    the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);

b)    the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;

c)    the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;

d)    the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;

e)    whether there are other persons who already fulfil a parental role in relation to the child;

f)    any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);

g)    evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;

h)    evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.

Consideration

Ground 1: Denial of procedural fairness

25    The applicant’s first ground is concerned with the Tribunal’s expression of doubt at paras [162] and [170] of its reasons as to whether the applicant is the biological father of a particular child (Child H).

26    In his representations to the Minister, the applicant had claimed to be the biological father of Child H. The delegate accepted the applicant was the biological father, as did the Minister in his Statement of Facts, Issues and Contentions filed with the Tribunal. The applicant submits that, in these circumstances, it was a denial of procedural fairness for the Tribunal to fail to squarely draw the applicant’s attention to Child H’s biological parentage being in issue.

27    The applicant also submits that the Tribunal was required to put him on notice of the issue prior to the hearing to afford him sufficient time to address it. He submits that the time limits under ss 500(6H), 500(6J) and 500(6L)(c) of the Act meant that he lacked any adequate opportunity to respond to the Tribunal’s concerns by, for example, providing DNA test results that might have established his biological link, or by seeking to have Child H’s mother give evidence.

28    It is relevant to note that it was the applicant himself who, in the course of his oral evidence before the Tribunal, first raised doubts about whether Child H is his biological daughter. The Tribunal addressed that issue in the context of considering, “the best interests of minor children in Australia”, under para 8.3 of Direction 90.

29    It is convenient to set out the passages from the Tribunal’s reasons concerning the best interests of Child H in full since those passages are relevant to both the first and second grounds of review:

162.    The Applicant claims to have biological daughter, “Child H”, born in 2013, whose best interests would be affected by the decision. Child H is the child of Ms A with whom the Applicant had an on and off relationship for a period. There is no evidence before me from Ms A or Child H. The Applicant has been inconsistent about whether he believes Child H is actually his daughter. For example, a Drug and Alcohol admission document dated in 2018 states under “family/relationships” that the Applicant is not currently in a relationship and does not have any children. When that record was put to him in the hearing, he said he did not recall it. He told Corrective Services in 2019 that his ex-partner and daughter were moving to Mackay. In his revocation request he listed Child H as his child, he said he has a beautiful seven year old daughter with his ex-partner, and he referred to having a partner (seemingly referring to Ms A) and daughter to look after. In the hearing, the Applicant said he was never sure if Child H was his daughter and on the few occasions when he brought up the topic with Ms A she “shrugged it off”.

163.    Until immediately before the hearing, the Applicant had not told any members of his family that he had a daughter. He said he did not discuss it with his mother because there was always doubt in his mind. The Applicant said Child H does not think he is her father and she knows him as Ms A’s friend. Later in his evidence, he seemed to indicate that he did believe that Child H was his daughter and that she recognised him as her father, while at the same time acknowledging that she calls him his name rather than dad. The Applicant acknowledged that he was not ready for the responsibility of being Child H’s father and Ms A was “cool with it”.

164.    The Applicant has never lived in the same home as Child H. He only saw her on days when he was not using drugs, as Ms A could tell if he was. The Applicant’s mother met Child H once when the Applicant was living with her and Ms A and Child H visited. Nobody said anything about the Applicant being Child A’s father. Ms V was told that Child H was the Applicant’s biological child a couple of weeks ago by the Applicant’s sister-in-law who she thinks heard it from the Applicant. She thought the Applicant’s sister-in-law had known or suspected it previously. The Applicant claimed that Ms V used to joke that Child H had the Applicant’s hair and that she looks like him. However that is not consistent with the totality of Ms V’s evidence. Ms V has seen Child H once but not met her. She said she recalled times when the Applicant was visiting a girlfriend and her child, and he described that child as his girlfriend’s child.

165.    The Applicant is not on Child H’s birth certificate. Ms A has never asked the Applicant to pay child support and he never has, although he claims to have helped pay for things. He indicated that Ms A is generally financially self-sufficient. While the Applicant indicated that Ms A is happy for him to spend time with Child H, there is not a regular arrangement or written agreement. There is no evidence that the Applicant is consulted in relation to major decisions that affect Child H for example which school she attends. The Applicant has never had Child H in his sole care overnight.

166.    The Applicant claimed that he provided emotional, financial, and practical support to Child H, and that he has taken her to the beach and purchased toys for her. He said he wants to spend more time with her and support her subsistence and advancement in life. He said that prior to being incarcerated he had been in close contact with both Ms A and Child H, that usually every weekend he went to Ms A’s home or they came to his apartment. He said they all have a very close relationship, that he is a huge support for them both, and that deportation would have a huge impact on them both. He said they would be devastated by an adverse decision. He also claimed that he speaks with Child H before and after school every day.

167.    I find these claims to be grossly exaggerated. Ms A moved her and Child H to Mackay around November 2019. Prior to that the Applicant spent many weekends with his relatives. He admitted that he did not see Child H when he was using drugs, and the evidence is that he was using drugs until he was incarcerated, which limits the days when he could have seen Child H. Ms A did not provide a statement in support of the Applicant’s visa being returned to him. If the Applicant was really such an integral part of Child H’s life I would expect Ms A to have made some effort to assist the Applicant to remain in Australia for Child H’s sake. The Applicant did not give a satisfactory explanation for Ms A’s failure to do so, saying her attitude is that he got himself into this situation and he can get himself out, and that perhaps she does not appreciate the seriousness of the situation.

168.    It seems unlikely that the Applicant would be able to maintain regular contact with Child H, and it is uncertain whether Ms A would want him to, if he were removed to South Africa.

169.    Ms A currently has a partner. The Applicant expects that Ms A will continue to allow him to be involved in Child H’s life to the extent that he has been in the past. If he is given his visa back, he will find out if he is Child H’s father through the courts. He said whether or not he is Child H’s father does not affect the way he feels about her.

170.    There is no reliable evidence that the Applicant is Child H’s biological father. He has not wanted the full responsibility of being her father to date and he has never fulfilled a parental role in any form. Ms A has always fulfilled a parental role and there is no evidence that the Applicant would ever be called upon or permitted to do that. There is no evidence about what other relatives and supports Child H has in her life. Child H’s views are not known. There is no evidence that Child H has suffered any significant negative impact while the Applicant has been in custody, and there is no evidence except the Applicant’s word that she would suffer any such impact in the event that he is deported and effectively removed from her life.

171.    I accept that if the Applicant were to remain in Australia, there is potential for him to visit Child A, take her to nice places and engage with her in a positive way as he has done in the past although this is somewhat dependent on Child H living near the Applicant and the Applicant behaving in a way that meets with Ms A’s approval.

172.     Revocation of the cancellation of the Applicant’s visa is in Child H’s best interests to a limited extent.

(Emphasis added; footnotes omitted.)

30    The applicant’s ground of denial of procedural fairness is concerned with both the adequacy of the Tribunal’s notification that Child H’s biological parentage was in issue and the timing of any such notification. It is necessary to examine the events which gave rise to the issue, the timing of those events, the way the issue came to be raised, and whether the questioning of the applicant about the issue before the Tribunal adequately placed him on notice about the issue.

31    The applicant was notified of the delegate’s decision not to revoke the cancellation of the applicant’s visa on 29 November 2021. The applicant’s Statement of Facts, Issues and Contentions was filed on 3 January 2022. The Minister’s responsive Statement of Facts, Issues and Contentions was filed on 25 January 2022. The hearing took place on 3 and 4 February 2022, with closing submissions on 11 February 2022. The Tribunal’s decision was given on 21 February 2022, the last day of the 84 day time limit for making the decision under s 500(6L)(c).

32    The applicant had completed and provided to the Minister a form dated 5 August 2020 entitled, “Request for revocation of a mandatory visa cancellation under s 501(3A)”. Under the heading, “Reasons for revocation”, the applicant stated, relevantly, “I have a partner & daughter to look after here”. In another form dated 5 August 2020 entitled “Personal Circumstances Form”, the applicant responded to a question requiring him to, “List below all your minor children (including biological children, adopted children, step-children)”, by writing Child H’s name. Although the applicant did not specify that Child H was his biological child, his other references in the form to Child H as his daughter, rather than step-daughter, indicate that he was representing that Child H was his biological daughter. For example, the applicant said, “I have a beautiful 7 year old daughter with my x partner” (sic). I will refer to the applicant’s ex-partner, the mother of Child H, as “Ms A”.

33    On 19 April 2021, the applicant made further written representations to the Minister in which he stated that he was committed to, “supporting my nine year old daughter”. He also said:

Soon after that I met [Ms A] who is the mother of my daughter whom I wasn’t in a relationship with. She fell pregnant and knew I used to socially use drugs which she didn’t want to pursue a relationship with me as she was against my drug usage. she still had our daughter and she has always been very supportive towards my recovery and my relationship with my daughter …

This was again a representation that Child H was the applicant’s biological daughter.

34    In the reasons given by the Minister’s delegate for refusing to revoke the cancellation decision, in considering the best interests of minor children, the delegate noted that the applicant, “states he shares a child [Child H] with his former partner [Ms A]”. The delegate was, “satisfied that [the applicant] has a genuine love for his daughter”. The delegate found that Child H is unlikely to have, “direct or meaningful access with her father”, if he were removed from Australia. The delegate should be understood to have accepted that Child H was the applicant’s biological child.

35    The applicant was represented by counsel before the Tribunal. In the applicant’s Statement of Facts, Issues and Contentions, the applicant’s counsel noted that the applicant, “shares a child [Child H] with his former partner [Ms A]”, and that, “the applicant genuinely loves his daughter”. In a supplementary statement filed with the Tribunal dated 3 January 2022, the applicant expressly stated:

I am also the biological father of a girl named [Child H]. In the past, before my time in prison and immigration detention, I provided emotional, financial and practical support to my daughter.

36    In his Statement of Facts, Issues and Contentions before the Tribunal, the Minister accepted that Child H, “is the applicant’s daughter”, and that Child H’s best interests weighed in favour of revocation of the cancellation decision. The Minister should be understood to have accepted that the applicant was Child H’s biological father.

37    Accordingly, prior to the hearing before the Tribunal, the applicant had consistently represented that Child H was his biological daughter. He had not mentioned any doubt about whether she was his biological daughter. The Minister’s delegate and the Minister’s legal representatives before the Tribunal had accepted that the applicant was Child H’s biological father.

38    In his oral evidence before the Tribunal, the applicant began by describing Ms A as, “the mother of my daughter”. However, he then proceeded to express doubt about whether he was in fact the biological father of Child H.

39    The applicant was asked in cross-examination whether his family was aware that he had a daughter. The applicant answered, relevantly:

Like, to be honest with you, the thing with [Ms A], like, I was never sure that [Child H] was my daughter and I did bring up this conversation with her a few times and she always shrugged it off.

40    At that point, the Tribunal member asked a series of questions, which elicited the following answers:

So, what does [Child H] think? Does [Child H] think you’re her dad?---No, she doesn’t, no. She just thinks I’m Mummy’s friend.

Isn’t it vitally important to you to know if you are here (sic) dad? And if you are, she knows that you are?---Member, I do understand what you’re saying. But, like, every time I asked [Ms A] this question, she kept putting it away, you know. She never answered a direct question. And it does, like, yes, to an extent it does worry me. But, at the end of the day, like, if I am or if I’m not, it’s not going to affect the way I feel about her ...

It does matter for these proceedings. It’s something that I have to consider under the direction that I am bound by. So, it matters here in this forum and I’m wondering why you’ve put up with that kind of rubbish where she won’t actually answer the question for, what, nine years?---Yes, yes. As I said, you know, like, I just kept putting it off and when she didn’t answer it, I assumed that it’s like, you know, I am, you know, I’m her dad. But, yes, I just kept putting it off. But, when I do get out, you know, I’ll have this conversation with her and it will be a serious one and if I have to go through the courts to get it done, like, as long as it’s not going to - I don’t want to put her through any situations, you know. Yes, but I’ll do it legitimately through and I’ll pursue it, you know, I’ll make sure it’s done through the courts and I will definitely, you know.

41    The Minister’s representatives asked the following questions and elicited the following answers:

Mr Pillay, can I just clarify, then, the situation then is that you’re not sure that [Child H] is your daughter?---It’s not about - yes, it’s not about whether I’m not sure, I just never pursued, like, like, DNA tests with [Ms A]. Like, she - according to her, you know, it’s my - she’s my daughter but I’ve never really, like, put other things into place…

Does [Child H] recognise you as her father?---She calls me by my name, you know, and she - yes, I think she does. She does but I just, you know, I just - -

Have you ever had that discussion with her?---With [Child H], no. With [Ms A], yes, a few times and - - -

But you’ve never discussed with [Child H] whether you are her father?---No, because I didn’t - it doesn’t affect my relationship with her and - - -

Well, it does, though, doesn’t it - - - the day [Ms A] is ready for that, like - yes.

But, I mean, there’s a different relationship that a person would have with a child where the child understands that the person is their parent, their father but if I understand what you’re saying correctly, you don’t know that [Child H] - you don’t know whether [Child H] thinks you’re her father?---She does. I think she does. Well, she does but I just – yes…

…

The question is a bit more specific than that though. Does [Child H] believe that you are or recognise you as being her father?---She - I think she does or she does, yes, but she doesn’t call me dad. She calls me Damien.

42    In closing submissions, the Minister’s representative stated:

Now, in my statement of facts and contentions I addressed [Child H’s] best interests by saying that there was an acknowledgement of the parental relationship with the child.

I think I do have to just qualify that by what I’ve just touched on. That as far as a parental relationship goes, there is - there’s certainly no definitive evidence that the applicant is [Child H’s] father. I would think it would be the case that without something further happening, from a legal perspective he wouldn’t be recognised as being [Child H’s] father in the absence of him being on her birth certificate, there being no DNA evidence to show that he is her father.

43    The applicant’s counsel made the following submission:

Turning next to the primary consideration of the best interests of minor children in Australia, my respectful submissions is that this is also a complex consideration, as my learned friend correctly points out, it is a case where there is no direct overarching evidence that confirms the applicant's long-standing suspicion and position that his daughter, [Child H], is in fact his biological daughter.

On one view, considering the evidence universally, it does appear to be the case, for the reasons I’ll come to in a moment, that the applicant has considered [Child H] to be his biological daughter and has maintained a relationship on that basis, although at the same time, admittedly, keeping that child from his immediate family in Australia. By immediate family I mean his mother, his step-father and extended family, cousins and so forth.

Just turning to more specific matters in relation to [Child H], the evidence was, at least from the applicant, that when his former partner, [Ms A], was pregnant, [Ms A] was pregnant with [Child H], he was dating her, “We were dating and she stayed with me”. He accepted that he’s never had a fulltime role as a parent, that the child has always been in the company, and more than the company, in the capacity of being taken care of by [Ms A], that what appears to be the only evidence of the biological mother.

He accepted that he’s never lived in the same house with [Ms A] throughout the course of her life and that he didn’t spend a substantial period of time with her over those years, evidently because he hasn’t lived with her. He accepted that he was never sure whether [Child H] was, in fact, his biological daughter but he said there was always some doubt. He gave evidence that he would help out and he would talk to [Child H] all the time and he made arrangements to see [Child H] throughout the course of her life and that [Ms A], at least in his evidence, has not stopped that ongoing relationship from occurring.

44    Procedural fairness requires that each party be given a reasonable opportunity to present his or her case: Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at [40] (Gaudron and Gummow JJ); Sullivan v Department of Transport (1978) 20 ALR 323 at 343 (Deane J). What will constitute a reasonable opportunity depends upon the whole of the circumstances, including the nature of the jurisdiction exercised and the statutory provisions governing its exercise: R v Commonwealth Conciliation and Arbitration Commission; Ex parte The Angliss Group (1969) 122 CLR 546 at 552–553; SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [26].

45    The applicant’s argument is analogous to that which succeeded in SZBEL. In that case, the Minister’s delegate had accepted the accuracy of the appellant’s account of two events and, on review, the Tribunal had not challenged the appellant’s account of those events. However, in its reasons, the Tribunal found the appellant’s account of those events to be implausible. The High Court held that the appellant had been denied procedural fairness.

46    The High Court at [32] cited with approval the following passage from Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 590-591:

It is a fundamental principle that where the rules of procedural fairness apply to a decision-making process, the party liable to be directly affected by the decision is to be given the opportunity of being heard. That would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material.

(Emphasis added by High Court.)

47    The High Court at [29] also cited with approval the following passage from Alphaone at 591-592:

Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question.

(Emphasis added by High Court.)

48    The High Court observed that it was necessary to direct attention to the statutory framework, as well as the particular circumstances of the case. The Tribunal’s review in that case was conducted under Part 7 of the Act, and s 425 required the applicant be invited, “to give evidence and present arguments relating to the issues arising in relation to the decision under review”.

49    The High Court held:

35    The Tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the Tribunal. But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are “the issues arising in relation to the decision under review”. That is why the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision. And unless some other additional issues are identified by the Tribunal (as they may be), it would ordinarily follow that, on review by the Tribunal, the issues arising in relation to the decision under review would be those which the original decision-maker identified as determinative against the applicant.

…

43    The delegate had not based his decision on either of these aspects of the matter. Nothing in the delegate’s reasons for decision indicated that these aspects of his account were in issue. And the Tribunal did not identify these aspects of his account as important issues. The Tribunal did not challenge what the appellant said. It did not say anything to him that would have revealed to him that these were live issues. Based on what the delegate had decided, the appellant would, and should, have understood the central and determinative question on the review to be the nature and extent of his Christian commitment. Nothing the Tribunal said or did added to the issues that arose on the review.

…

47    First, there may well be cases, perhaps many cases, where either the delegate’s decision, or the Tribunal’s statements or questions during a hearing, sufficiently indicate to an applicant that everything he or she says in support of the application is in issue. That indication may be given in many ways. It is not necessary (and often would be inappropriate) for the Tribunal to put to an applicant, in so many words, that he or she is lying, that he or she may not be accepted as a witness of truth, or that he or she may be thought to be embellishing the account that is given of certain events. The proceedings are not adversarial and the Tribunal is not, and is not to adopt the position of, a contradictor. But where, as here, there are specific aspects of an applicant’s account, that the Tribunal considers may be important to the decision and may be open to doubt, the Tribunal must at least ask the applicant to expand upon those aspects of the account and ask the applicant to explain why the account should be accepted.

50    There is no doubt that the Tribunal is required to provide procedural fairness in the conduct of a review of a decision under s 501CA(4) of the Act: see, for example, Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 96 ALJR 737 at [18].

51    I have described the course and chronology of the representations made by the applicant concerning Child H’s parentage where the applicant consistently claimed that he was Child H’s biological father. In the applicant’s testimony before the Tribunal he raised, for the first time, that he had doubts about whether he was Child H’s biological father. That expression of doubt was contrary to the certainty expressed in his earlier representations, particularly in his supplementary statement to the Tribunal where he said, “I am also the biological father of a girl named [Child H]”. Until his oral evidence, there was no reason for the Minister or the Tribunal to suspect that he may not be Child H’s biological father.

52    Paragraph 8.3 of Direction 90 does not expressly distinguish between the hardship that may be caused to a child by separation from a biological parent and separation from a step-parent. However, it is apparent that there are cases where separation from a biological parent will affect a child to a greater extent than would separation from a step-parent. The applicant had asserted he was the biological parent of Child H, evidently to support the submission that it would be in Child H’s best interests for the non-revocation decision to be overturned. The issue of whether the applicant was Child H’s biological father was relevant to the Tribunal’s review of the delegate’s decision.

53    Following the applicant’s revelation that he had doubts about whether Child H was his biological daughter, he was questioned about his doubts, his discussions with Ms A concerning Child H’s parentage and Child H’s understanding of whether he was her father. The Tribunal asked him, “Isn’t it vitally important to you to know if you are her dad?”, and followed that question by saying, “It does matter for these proceedings”. The applicant could not have been left in any doubt that whether he was Child H’s biological father was an issue the Tribunal would consider.

54    The applicant’s counsel certainly understood that the biological parentage of Child H was in issue because he expressly addressed that matter in his closing address. In Dharma v Minister for Home Affairs [2019] FCA 431; (2019) 78 AAR 10, Griffiths J at [65] observed that whether an applicant is legally represented or self-represented may shape the question of the fairness of the procedures adopted. I respectfully agree. In my opinion, the Tribunal and the Minister adequately drew that issue to the attention of the applicant and his counsel.

55    The applicant’s oral submissions in this Court strayed at times into asserting that the Tribunal had found that the applicant was not the biological father of Child H. If the Tribunal had made that finding, the applicant may have had cause for complaint. However, no such finding was made. The Tribunal went no further than to indicate, consistently with the applicant’s own testimony, that there was no clear evidence that the applicant was the biological father of Child H.

56    I reject the applicant’s submission that the Tribunal denied him procedural fairness by failing to expressly or clearly draw his attention to the biological parentage of Child H being in issue.

57    The second aspect of the applicant’s allegation of denial of procedural fairness concerns timing. The applicant contends that the Tribunal raised the issue of the biological parentage of Child H too late to allow him to obtain further evidence on the issue. The issue arose in the Tribunal on 3 February 2022, only 18 days before the 84 day time limit under s 500(6L)(c) of the Act expired. Sections 500(6H) and 500(6J) required the applicant to have notified the Minister of additional evidence and documents in support of his case at least two business days before the Tribunal held a hearing. The applicant submits that the Tribunal’s notification of the issue of Child H’s parentage came too late in circumstances where the delegate’s non-revocation decision and the Minister’s Statement of Facts, Issues and Contentions each accepted that he was the biological parent of Child H. He contends that the Tribunal ought to have notified him of the issue before the commencement of the hearing.

58    However, the applicant’s submission ignores the fact that the applicant himself had put the biological parentage of Child H in issue in his oral evidence by retreating from the assuredness of his claim that he was her biological father. In Alphaone at 592, the Full Court observed that a decision-maker is required to advise of any adverse conclusion, “which would not obviously be open on the known material”. The applicant evidently knew, contrary to his representations, that he was uncertain whether Child H was his biological child, whereas the Minister and the Tribunal could not have been aware of any such doubts until they were revealed in his oral evidence. In the circumstances, there was nothing unfair about the Tribunal relying upon the applicant’s own oral evidence.

59    In any event, it was open to the applicant to have adduced further evidence about Child H’s biological parentage. The second day of the hearing was conducted on 4 February 2022, and the matter was adjourned to 11 February 2022 for closing addresses. In Dharma, Griffith J held at [78] that s 500(6H) would have prevented the Tribunal from having regard to any information presented orally in support of the applicant’s case where he had not provided two business days’ notice, “unless the hearing was adjourned”. In other words, his Honour accepted that s 500(6H) of the Act does not prevent an applicant who has not given two business days’ notice of proposed oral evidence prior to the commencement of the hearing, from relying upon that evidence as long as at least two business days’ notice is given prior to the resumption of the hearing following an adjournment. I respectfully agree. It is axiomatic that procedural fairness is not excluded except by plain words of necessary intendment: see, for example, Kioa v West (1985) 159 CLR 550 at 584; Annetts v McCann (1990) 170 CLR 596 at 598. The phrase in s 500(6H), “at least 2 business days before the Tribunal holds a hearing”, is capable of applying to a resumed hearing. The provision should be construed consistently with the principle of procedural fairness that a party who may be directly affected by the decision should be given a reasonable opportunity to be heard in opposition to any potential finding which would prejudice their interests.

60    It would have been open to the applicant to, for example, give at least two business days’ notice prior to the resumed hearing that he intended to call Ms A to give evidence about the parentage of Child H and then call her. Although the applicant submits this is a step he could have taken had he not been prevented from doing so by the Tribunal’s late notification of the issue, he in fact had that opportunity but did not take it.

61    The applicant’s first ground of review must be rejected.

Ground 2: Failure to evaluate the applicant’s links with his daughter when considering links to the Australian community under Direction 90

62    In the applicant’s Statement of Facts, Issues and Contentions before the Tribunal, he stated:

Strength, nature and duration of ties to Australia. Regarding the applicant’s immediate family in Australia, these include his daughter, former partner, mother, step-father, sister, and brother (all of whom are Australian citizens).

(Emphasis omitted; italics in original)

63    The applicant submits that the Tribunal was obliged to read, identify, understand and evaluate his representations raising particular claims as to why the cancellation decision should be revoked. The applicant submits that nowhere in its consideration of “links to the Australian community” did the Tribunal mention, much less evaluate, the applicant’s relationship with Child H and her mother, Ms A.

64    The applicant submits that it is no answer that the Tribunal may have elsewhere considered evidence relating to the applicant’s relationship with Child H and Ms A in the course of addressing, “the best interests of minor children in Australia”. He submits that the Tribunal was there considering the evidence in the context of a different claim, namely that it would be in Child H’s best interests for the cancellation decision to be revoked, whereas consideration of links to the Australian community focused attention on the applicant rather than the child.

65    The Minister submits that the Tribunal did consider the applicant’s representations or claims regarding Child H and Ms A in its consideration of the best interests of Child H. The Minister submits that the Tribunal did not need to deal repetitiously with the claim where it may have been relevant to two or more considerations under Direction 90. The Minister also submits that, even if there had been some error, it was not material.

66    Paragraph 9(1) of Direction 90 sets out four “other considerations” which must be taken into account. These include:

d)    links to the Australian community, including:

(i)    strength, nature and duration of ties to Australia;

…

67    Paragraph 9.4 of Direction 90 provides:

9.4    Links to the Australian community

Reflecting the principles at paragraph 5.2, decision-makers must have regard to paragraphs 9.4.1 to 9.4.2 below.

9.4.1.    The strength, nature and duration of ties to Australia

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

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

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

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

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

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

68    In Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 96 ALJR 497, the plurality held at [24] that a decision-maker is not obliged, “to make actual findings of fact as an adjudication of all material claims”. The plurality observed at [25] that, “[t]he requisite level of engagement — the degree of effort needed by the decision-maker — will vary, among other things, according to the length, clarity and degree of relevance of the representations”.

69    In his closing address to the Tribunal, the applicant’s counsel referred generally to the emotional impact upon the applicant of being so far away from his family and the effect of his removal on all of his family, but did not specifically make any submission concerning Ms A and Child H in this context.

70    In the Tribunal’s consideration of “links to the Australian community” under para 9.4 of Direction 90, the Tribunal noted at [193] that the applicant’s, “immediate family in Australia are his mother, stepfather, older brother, and younger sister”. That was consistent with a submission made by the applicant’s counsel that, “[b]y immediate family I mean his mother, his step-father and extended family, cousins and so forth”. The Tribunal considered the impact of the applicant’s removal from Australia upon those persons, concluding that his removal would cause emotional hardship to many members of the applicant’s family. The Tribunal did not mention Ms A or Child H in that context.

71    The Tribunal had observed at [155] that, generally, a de facto partner is understood to be a family member. Although the applicant had claimed that before being incarcerated he had been in close contact with Ms A and Child H, that they had a close relationship, that he was a “huge support” for them, and that deportation would have a “huge impact” on them, the Tribunal found at [167] that those claims were “grossly exaggerated”. The Tribunal found at [169] that Ms A has a new partner. The Tribunal found that the applicant had not given a satisfactory explanation for Ms A’s failure to provide a statement in support of the applicant remaining in Australia if the applicant was really an integral part of Child H’s life. The Tribunal found at [170] that the applicant has never fulfilled a parental role in respect of Child H in any form and there was no evidence that he would ever be called upon or permitted to do that. The Tribunal also found at [170] that there was no evidence that Child H had suffered any negative impact while the applicant had been in custody.

72    It is evident that the Tribunal did not accept that Ms A and Child H were part of the applicant’s immediate family in Australia. In my opinion, the Tribunal considered the applicant’s submission that Ms A and Child H would be impacted by his removal to South Africa, but rejected that submission. To the extent that the applicant may have submitted that he would be caused emotional hardship by his separation from Ms A and Child H, the Tribunal implicitly rejected that submission by its analysis of the paucity of any ongoing relationship between the applicant and Ms A and Child H, finding that the applicant’s claims concerning that relationship were “grossly exaggerated”.

73    I do not accept that the Tribunal overlooked the applicant’s claim that Ms A and Child H would suffer significant hardship as a result of his removal from Australia and that the applicant would suffer significant hardship as a result of his separation from them.

74    The applicant’s second ground must be rejected.

Ground 3: Errors in consideration of the extent of impediments if removed

75    The applicant submits that the Tribunal’s consideration of the extent of the impediments the applicant may face if removed from Australia was vitiated by two jurisdictional errors. First, the applicant asserts that the Tribunal failed to read, identify, understand and evaluate his claim concerning difficulty obtaining employment in South Africa because of his drug dependency disorder.

76    The applicant’s Statement of Facts, Issues and Contentions asserted:

118.    The applicant’s unresolved drug addiction problems reflect a clear impediment in establishing himself and maintaining basic living standards in South Africa. One might apprehend that it would intrude not just on health but also upon the ability to obtain work or otherwise settle in that country.

…

131.    Respectfully, there are a number of problems with the above reasoning of the delegate. First, the delegate’s reasoning fails to consider the very high unemployment rate in South Africa. Secondly, the delegate’s reasoning fails to consider the significant impediments the applicant will face in South Africa because of the COVID-19 pandemic. Thirdly, the delegate has failed to consider how the applicant’s unresolved drug addiction issues might reasonably impact the applicant’s prospects of obtaining lawful employment in South Africa and re-establishing himself there. Fourthly, the delegate has also failed to consider that the applicant’s criminal history and deportation to South Africa could realistically impact the applicant’s prospects of obtaining lawful employment in that country. In other words, because the applicant would be deported from Australia on account of being an unacceptable risk to the Australian community, a prospective employer in South Africa may very well be unwilling to employ such a person as the applicant.

(Citations and footnotes omitted.)

77    The applicant submits that the Tribunal’s reasons demonstrate that it failed to identify, understand or evaluate the relevance of the applicant’s drug dependency disorder to his prospects of obtaining employment in South Africa.

78    The applicant also submits that the Tribunal misunderstood the effect of para 9.2 of Direction 90 and discounted the particular impediments that the applicant would likely face in respect of healthcare, government income support and the impact of a criminal record on his employment prospects, on the basis that these were, “challenges faced by the general population”. The applicant submits that the applicant’s need for medical support was particular to him as a result of his drug dependency disorder and the recommended long term treatment he required. Further, the applicant submits that his ineligibility for government income support is the product of his personal attribute of having lived almost the entirety of his adult life in Australia and not having contributed to the South African social security system, and is therefore not a challenge faced by the general population. In addition, the applicant submits that his barriers to employment as a result of his criminal record with respect to the regulated economy are not barriers faced by the general population, but barriers that deportees in particular are likely to face.

79    The Minister submits that the Tribunal did take into account the applicant’s drug dependency disorder in the context of the extent of the applicant’s impediments if removed from Australia and in responding to the applicant’s representations. This incorporated consideration of any difficulties in obtaining employment. The Minister also submits that any error was immaterial.

80    Paragraph 9.2 of Direction 90 provides:

(1)    Decision-makers must consider the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:

a)    the non-citizen’s age and health;

b)    whether there are substantial language or cultural barriers; and

c)    any social, medical and/or economic support available to them in that country.

81    The Tribunal noted at [203] that Professor Freeman, a forensic psychologist who gave evidence before the Tribunal, considered that the applicant would be impacted by hardships and hurdles in South Africa, including in his ability to find employment. The Tribunal found at [205] that Professor Freeman had diagnosed the applicant with, “a methamphetamine dependency disorder that is currently in remission in a controlled environment”.

82    The Tribunal found:

208.    According to country information provided on the Applicant’s behalf, in the third quarter of 2021, South Africa’s unemployment rate rose from 34.4% to 34.9%, which was a record high.

…

209.    In South Africa there are many limitations imposed on people with criminal records including limitations with respect to employment. There are many pieces of legislation or regulations in South Africa prohibiting employers from employing people with criminal records. However, it is not clear from the country information, whether all employers, or only some specified employers, are prohibited from employing people with criminal records.

210.    There is, of course, an unregulated economy in most countries and I have no reasons to believe that South Africa is an exception. The Applicant used to work in South Africa stocking shelves, he studied retail management and graphic design at TAFE in Mackay, and he is able to repair and unlock phones. He has demonstrated that he can be proactive about earning a living: at one stage he made money from buying phone screens from eBay and advertising his services as a phone repairer on Gumtree. He is able bodied and relatively young, and he was able to maintain employment at times when he was using drugs. He helped his aunt and uncle doing jobs around their home, and presumably he could offer lawnmowing or physical labour services in South Africa. He speaks English. He told Professor Freeman would seek employment in the signage industry in South Africa.

211.    I am satisfied that the Applicant has transferrable skills that he could use to earn some money whether in parts of the regulated economy where criminal records do not prohibit employment or in the unregulated economy including in the agricultural sector or doing odd jobs.

83    I do not accept that the Tribunal overlooked the effect of the applicant’s drug dependency disorder on his difficulties in obtaining employment in South Africa. The Tribunal, in the context of considering the extent of impediments to the applicant if removed, specifically referred to his diagnosis of methamphetamine dependency disorder which was currently in remission. The Tribunal then specifically addressed the issue of unemployment rates in South Africa, limitations on people with criminal records obtaining employment and the ability of the applicant to obtain employment in either the regulated or unregulated economy. The Tribunal returned to the topic of the applicant’s drug dependency disorder when finding that there was some support available through Narcotics Anonymous in South Africa. In circumstances where the Tribunal expressly considered the applicant’s drug dependency disorder as creating an impediment to the applicant establishing himself and maintaining basic living standards in South Africa, it cannot be accepted that the Tribunal overlooked the effect that the applicant’s drug dependency disorder would have upon his prospects of obtaining employment.

84    The Tribunal also found:

231.    The Applicant does not currently suffer from any physical health conditions and he is relatively young. He has never sought medication or a medical procedure for his drug dependency, nor has any been recommended. Rather, he has received treatment in the form of supervision, education and counselling. Professor Freeman, who diagnosed the disorder, recommended long-term treatment, support and monitoring, and suggested complementary drug rehabilitation services such as ATODS and Narcotics Anonymous. There are Narcotics Anonymous groups throughout the world including in South Africa. There are in-person and online meetings available at no cost. In the hearing, the Applicant said he would engage with Narcotics Anonymous if it was recommended. This is viable option for the Applicant. Further, Aunt C said her church in South Africa offered rehabilitative support to addicts.

232.    The challenges that the Applicant will face in terms of the standard of available healthcare, the economy, the way the government income support system works, the impact of a criminal record on employment prospects and the impact of COVID are challenges faced by the general population. He is relatively well educated, speaks English and has good health and transferable skills. He will have some degree of financial support from his family in Australia.

233.    Being separated from his family is likely to impact the Applicant significantly, particularly in the context of a drug dependency. So will uncertainty in relation to accommodation and familial or social support. These are not challenges faced by the general population. However, there will be short term help available through Ms C’s church and there are prospects of support from the community of extended family in South Africa. There will also be relevant psychological support available through Narcotics Anonymous and churches.

85    It cannot be accepted that the Tribunal only considered the challenges faced by the general population, and not the particular impediments that the applicant would face in respect of healthcare, government income support and the impact of his criminal record on his employment prospects.

86    The applicant’s third ground must be rejected.

Ground 4: Overlooking the applicant’s reduced moral culpability for his criminal conduct

87    Before the Tribunal, the applicant submitted that a reason for revoking the cancellation of his visa was that his moral culpability for his criminal offending was reduced by reason of his having grown up, “in an environment surrounded by alcohol abuse and violence”, relying upon Bugmy v The Queen (2013) 249 CLR 571 at [43]-[44].

88    The applicant submits that the Tribunal erred by regarding the application of Bugmy as limited to cases of extreme deprivation or abuse in a person’s childhood, whereas a similar contention had been rejected in Hoskins v The Queen [2021] NSWCCA 169 at [57]. The applicant submits that logic and reason compel the view that the effect of childhood deprivation or abuse on a person’s moral culpability depends on all of the circumstances of the deprivation and the offending, not on the deprivation reaching any particular threshold. The applicant submits that the Tribunal’s reasoning was illogical, irrational or unreasonable.

89    The applicant submits that the Tribunal found that a “causal connection” was required between a person’s background and their offending before their moral culpability could be reduced, whereas a similar contention was rejected in Director of Public Prosecutions (Vic) v Herrmann [2021] VSCA 160; (2021) 290 A Crim R 110 at [45]-[46]. The applicant submits that the impact of disadvantage is complex, multilayered, non-linear and not easily diagnosed or measured, and even without such measurement it is possible to say that an offender who has experienced childhood disadvantage is less morally culpable than an offender whose formative years were not marred in that way. The applicant submits that the Tribunal’s reasoning was illogical, irrational or otherwise unreasonable.

90    The Minister submits that the Tribunal was not persuaded that the applicant’s background reduced his moral culpability and the Tribunal made no error in so finding.

91    The Tribunal’s reasons addressed the applicant’s “moral culpability” submission as follows:

235.    It was contended on behalf of the Applicant that his challenging upbringing reduced his moral culpability for his offending, referring to the sentencing principles discussed in Bugmy v the Queen (“Bugmy”). I was asked to treat this as a separate reason that weighs in favour of revocation of the cancellation of the Applicant’s visa.

236.    Bugmy concerned an indigenous offender who had grown up in a family where he was surrounded by alcohol abuse and extreme violence. It is noteworthy that the decision does not support the proposition that a deprived background will necessarily reduce an offender’s moral culpability. That is evident in the following passages:

“An Aboriginal offender’s deprived background may mitigate the sentence that would otherwise be appropriate for the offence in the same way that the deprived background of a non-Aboriginal offender may mitigate that offender’s sentence.”

(Underlining added)

and

“Of course, not all Aboriginal offenders come from backgrounds characterised by the abuse of alcohol and alcohol-fuelled violence. However, Wood J was right to recognise both that those problems are endemic in some Aboriginal communities, and the reasons which tend to perpetuate them. The circumstance that an offender has been raised in a community surrounded by alcohol abuse and violence may mitigate the sentence because his or her moral culpability is likely to be less than the culpability of an offender whose formative years have not been marred in that way.”

(Underlining added)

237.    Further, establishing a causal connection between a deprived upbringing and subsequent offending can cut both ways in the sentencing process. As the court stated:

“An offender’s childhood exposure to extreme violence and alcohol abuse may explain the offender’s recourse to violence when frustrated such that the offender’s moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender.”

238.    The relevance of reduced moral culpability in the sentencing process is readily apparent, However, the sentencing exercise conducted by courts is fundamentally different to the assessment I am required to undertake, although both take into account the protection of the community.

239.    Separately to that, it is well accepted that an unsupportive home environment can make a person more vulnerable to substance abuse which can, in turn, lead to anti-social behaviour. However, there is a difference between identifying factors that could have contributed to a person’s offending and partially excusing the offending. So much is made clear in the passages quoted above. In Bugmy, the deprivation and abuse in the offender’s background was extreme, and the sentencing Judge had accepted that there was a causal connection between extreme violence in his family background and his subsequent violent offending. That is not the case here. The Respondent did not concede that the Applicant’s background reduces his moral culpability, and the evidence before me does not persuade me that it does.

240.    I have had regard to the difficulties in the Applicant’s family home as part of his background as far as his background is relevant to my assessment of the Primary and Other Considerations.

(Emphasis and italics in original; footnotes omitted.)

92    Bugmy was concerned with punishment of offenders for criminal offending. In contrast, a decision to cancel a visa under s 501(3A) of the Act, and any subsequent decision as to whether to revoke the cancellation decision under s 501CA(4) of the Act, is not made for the purpose of punishing an offender, but for the protection of the community: see Falzon v Minister for Immigration and Border Protection (2018) 262 CLR 333 at [47], [88] and [93]. However, as the operation of s 501(3A) of the Act requires the Minister’s satisfaction that the person has, relevantly, been sentenced to a term of imprisonment of 12 months or more and is serving a sentence of imprisonment on a full-time basis, there will be some overlap between factors taken into account by the sentencing judge and factors relevant to a decision under s 501CA(4) of the Act. The need for protection of the Australian community against further offending is an obvious example.

93    In Herrmann , the Victorian Court of Appeal observed at [14]:

In assessing an offender’s “moral culpability,” the sentencing court is making a moral judgment on behalf of the community about the degree of blameworthiness to be attached to the offender for the offending conduct. Determining how harshly a particular offender is to be judged — and punished — often requires a close examination of the personal circumstances and background of the offender and an exploration of factors which may explain the offending conduct. To the extent that offending conduct can be seen to reflect the operation of factors which are beyond the offender’s control, the harshness of the moral judgment is likely to be moderated.

94    The moral culpability of the former visa holder may have some relevance under s 501CA(4) of the Act. For example, where an offender’s moral culpability can be regarded as reduced because of an abusive upbringing resulting in drug addiction and mental illness, the decision-maker might conclude that the expectations of the Australian community are that such a person should be permitted to remain in the community. Conversely, the decision maker might consider that the community has a high need for protection from such a person because they are less likely to control their offending behaviour. Of course, a decision-maker cannot revoke a cancellation decision for the purpose of punishing a morally culpable person.

95    The Tribunal did not find that lower moral culpability was incapable of being taken into account. The Tribunal was unpersuaded that the applicant’s background reduced his moral culpability for his criminal offending. That was because the Tribunal at [239] was not satisfied that the applicant’s upbringing was causally linked to his offending. In Herrmann, the Victorian Court of Appeal held at [46] that, “[i]t is the mark of a humane society that the moral judgment expressed through sentencing should take account of the lifelong damage that may result from exposure to violence or abuse or parental neglect in an offender’s formative years”. However, Herrmann does not suggest that it is irrational, illogical or unreasonable for an administrative decision-maker to fail to be satisfied that weight should be given to an abusive background in the absence of a causal link between a person’s background and relevant criminal offending. It was open to the Tribunal, and not illogical, irrational or unreasonable, to find that the applicant’s moral culpability was not reduced by his abusive upbringing.

96    Further, and contrary to the applicant’s submission, the Tribunal did not regard moral culpability as capable of being considered only in cases of extreme deprivation or abuse in a person’s childhood. The Tribunal at [239] was merely making a comparison between the circumstances in Bugmy and those in the present case in the course of concluding that it was not satisfied that the applicant’s upbringing was causally linked to his offending. It was not illogical, irrational or unreasonable for the Tribunal to reason in that way.

97    It may also be observed that the Tribunal noted at [240] that it had regard to difficulties in the applicant’s family home as part of his background so far as that background was relevant to the Tribunal’s assessment of the primary and other considerations under Direction 90. That may be seen, for example, at [184] where the Tribunal, when considering the expectations of the Australian community, expressly took into account that the applicant had grown up with an abusive stepfather.

98    The applicant’s fourth ground has not been established.

Conclusion

99    The applicant has not established any of his grounds of review. The application must be dismissed with costs.

Associate:    

Dated:    19 December 2022