Federal Court of Australia

Aghbolagh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 43

ORDERS

THE COURT ORDERS THAT:

1.    The application be 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

BURLEY J:

1.    INTRODUCTION

1    The applicant is a 45 year old citizen of Iran. On 18 November 2020 a delegate of the Minster for Immigration, Citizenship, Migrant Services and Multicultural Affairs cancelled the applicant’s Resident Return (subclass 155) visa pursuant to s 501(3A) of the Migration Act 1958 (Cth) and invited him to make representations about the revocation of the decision.

2    Section 501CA(4) of the Act 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.

3    The applicant made representations in accordance with s 501CA(4)(a), but a delegate of the Minister was not satisfied that there was another reason why the original decision cancelling the visa should be revoked. He then applied to the Administrative Appeals Tribunal for a review of that decision. On 18 November 2021 the Tribunal affirmed the decision of the delegate.

4    The applicant now applies for judicial review of the decision of the Tribunal. He relies on the following grounds:

1.    The Tribunal misconstrued the meaning of ‘independent and authoritative information’

a.     The Tribunal made 7 separate findings that the Applicant committed ‘family violence’, at paragraphs 158 to 182 of the decision record.

b.     The 7 findings of ‘family violence’ depended on police reports. The Tribunal was satisfied the reports were ‘independent and authoritative information about the events’. In this, the Tribunal relied on paragraph 8.2 (2) b) of Direction No. 90 which sets out that phrase as a requirement.

c.     The police reports were not ‘independent and authoritative information about the events’. In this respect, the Tribunal misconstrued paragraph 8.2 (2) b). In particular, the Tribunal erred by reasoning:

(i)     “it is authoritative because it was made by a duly commissioned and appropriately qualified law enforcement officer”, at paragraph 157 of the decision record.

2.     The Tribunal did not ‘afford procedural fairness’ for the police reports

a.     The Tribunal did not take evidence from:

(i)    any person who was competent to speak about the purposes of the police reports, generally; or

(ii)    the authors of the police reports.

b.    Whereas in the circumstances of the hearing, the proper use of the police reports was a live issue.

c.     Accordingly, the Tribunal did not ‘afford procedural fairness’ to the Applicant, which Paragraph 8.2 (2) b) of Direction No. 90 required.

3.     The Tribunal misconstrued the meaning of ‘the relationship is non-parental’

a.     The Tribunal made a finding that the Applicant’s relationship with his younger child has been ‘mainly non-parental’, at paragraph 277 [sic, [227]] of the decision record. In this, the Tribunal relied on sub-paragraph (a) of paragraph 8.3 (4) of Direction No. 90, relevantly providing:

(i)     “Less weight should generally be given where (1) the relationship is non-parental,”

b.     The Applicant is the younger child’s father and accordingly in a parental relationship with her. The Tribunal acknowledged the Applicant as father.

c.     By failing to find the plain parental relationship the Tribunal misconstrued paragraph 8.3 (4) of Direction No. 90.

d.    The errors were material to the decision.

5    The applicant was represented by Mr P Berg of counsel. The Minister was represented by Mr G Johnson of counsel. Both filed and relied upon written submissions.

6    For the reasons set out below, the application must be dismissed.

2.    DIRECTION 90

7    Direction No 90 is a Ministerial Direction issued by the Minister on 8 March 2021 pursuant to s 499(1) of the Act and which commenced on 15 April 2021.

8    The Direction defines “family violence” as follows:

family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful. Examples of behaviour that may constitute family violence include:

a)    an assault; or

b)    a sexual assault or other sexually abusive behaviour; or

c)    stalking; or

d)    repeated derogatory taunts; or

e)    intentionally damaging or destroying property; or

f)    intentionally causing death or injury to an animal; or

g)    unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or

h)    unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or

i)    preventing the family member from making or keeping connections with his or her family, friends or culture; or

j)    unlawfully depriving the family member, or any member of the family member’s family, or his or her liberty.

9    Paragraph 8.2 of the Direction provides:

(1)    The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen (see paragraph (3) below).

(2)    This consideration is relevant in circumstances where:

a)    a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or

b)    there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.

(3)    In considering the seriousness of the family violence engaged in by the non- citizen, the following factors must be considered where relevant:

a)    the frequency of the non-citizen’s conduct and/or whether there is any trend of increasing seriousness;

b)    the cumulative effect of repeated acts of family violence;

c)    rehabilitation achieved at time of decision since the person’s last known act of family violence, including:

i.    the extent to which the person accepts responsibility for their family violence related conduct;

ii.    the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);

iii.    efforts to address factors which contributed to their conduct; and

d)    Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen’s favour. This includes warnings about the non­citizen’s migration status, should the non-citizen engage in further acts of family violence.

3.    THE DECISION OF THE TRIBUNAL

10    The Tribunal found that the applicant failed the character test because he had a “substantial criminal record” as defined in s 501(7)(c) of the Act. The primary focus of the Tribunal’s reasons was whether it considered that there is another reason why the original decision should be revoked, within s 501CA(4)(b)(ii).

11    The Tribunal noted that in considering whether to exercise the discretion under s 501CA(4), it is bound by s 499(2A) to comply with the Direction. It referred first to primary consideration 1, which concerns the protection of the Australian community, and considered in some detail the applicant’s criminal convictions, commencing by referring to a shoplifting offence of 15 July 2003 and continuing by summarising offences of larceny and possession of stolen goods committed over time until November 2019. It also had regard to various traffic offences for which the applicant was convicted. It concluded that the applicant’s conduct has been “very serious”. It assessed the risk to the Australian community of the applicant committing further offences or engaging in other very serious conduct by reference to the nature of the harm caused by his offending and an unresolved risk that he will resume an abusive relationship with illicit substances and re-offend, having regard to his incomplete rehabilitation. It considered that primary consideration 1 carried a “very strong weight against the revocation of the mandatory cancellation” of the applicant’s visa.

12    The Tribunal next turned to primary consideration 2, which concerns family violence. The Tribunal’s findings in this regard are the subject of grounds 1 and 2 of the present application.

13    The Tribunal set out para 8.2 of the Direction. It identified that the members of the applicant’s family consisted of his wife and two daughters. It then summarised the applicant’s oral evidence about family violence, having regard to police material consisting of the records taken by members of the police force concerning complaints made to them by his wife concerning domestic violence. The Tribunal noted the applicant’s evidence that upon release from detention he intended to return to live with his wife, and his acknowledgement that it was their mutual abuse of illicit drugs which was at the core of the instability of their relationship. It noted that in cross-examination the applicant accepted that mutual apprehended violence orders (AVOs) had been obtained by each against the other. However, when it was put to the applicant, by reference to the police reports, that there is a history of domestic violence between him and his wife on each occasion he denied that there had been any domestic violence. The Tribunal noted the oral evidence given by the applicant along these lines in relation to seven separate police narratives made on 12 July 2001, 21 April 2014, 26 January 2017, 22 April 2017, 5 June 2017, 21 October 2017 and 27 October 2017.

14    The Tribunal also referred to a number of “further supplementary documents” from the Department of Community and Justice in the materials before it that had been tendered and were also put to the applicant concerning his involvement in family violence.

15    The Tribunal also gave a summary of the oral evidence of the applicant’s wife. It noted that she repeatedly denied that there was any physically abusive aspect to their domestic arguments but that she acknowledged that most of the time they fought about drugs. It noted that she initially denied that in the past certain AVOs had been put in place, and that, when pressed on the subject, she became non-responsive and unhelpful. The Tribunal records that eventually the applicant’s wife accepted that AVOs had been in place but declined to explain why, and denied that the applicant had ever subjected her to domestic violence or that she had ever previously reported domestic violence to the police or a caseworker or any governmental department. The Tribunal found this evidence to be incredible having regard to the materials before it.

16    The Tribunal referred to the extended definition of “family violence” in the Direction and to the requirements of paras 8.1 and 8.2 of the Direction. It then reviewed the content of and evidence about each of the police narratives.

17    For present purposes it is sufficient to set out the Tribunal’s findings about the police narrative dated 22 April 2017, which the parties to the appeal agreed could be treated as a representative sample of the way that the Tribunal considered each of the police narratives:

22 April 2017 police document

169.     The first task is to decide whether this police document is independent and authoritative. I am satisfied this police document is sufficiently “independent and authoritative” for the purposes of paragraph 8.2(2)(b) of the Direction. This is because (1) it was made contemporaneously with the occurrence of the subject incident and thus, to my mind, carries an inherent level of reliability; and (2) it is authoritative because it was made by a duly commissioned and appropriately qualified law enforcement officer.

170.     I am likewise satisfied that this police report is also independent because its content contains nothing to counteract the suggestion that the reporting police officer was anything other than independent of the circumstances of the incident. While the Applicant and his wife may purport to deny this type of incident, their evidence is to be rejected. There is no competing factual summary in the material that could remotely carry the same level of independence and authority as that represented by this police report. I have no difficulty in finding that the reporting police officer recorded independent and authoritative information about the events appearing in that report.

171.     The second task is to determine whether the Applicant’s involvement in this incident has caused him to become “involved in the perpetration of family violence” for the purposes of paragraph 8.2(2)(b) of the Direction. The above-quoted portion of this police report demonstrates that the Applicant has exhibited violent conduct towards a member of his family (his wife). There is clear reference in the report to him being physically violent towards her many times. There is little to cavil with the proposition that his conduct has been threatening towards her because there is reference in the report to him threatening to release footage of her while on “ice” to her family. Further, his conduct can be found to constitute “other behaviour […] that coerces or controls” his wife because the report says “he looks through her phone and demands to know who she is in contact with.” Finally, his conduct can also be found to be other behaviour that “causes [a] family member to be fearful” because the report makes it clear that she “has fears for her safety because of all the recent incidents which are escalating daily”.

172.     I find that the conduct reported in the police report of 22 April 2017 constitutes family violence.

18    The Tribunal did not find that all of the police narratives reported domestic violence. Of the seven cited, it found that the police narrative of 5 June 2017 could not safely be found to constitute a reference to family violence perpetrated by the applicant, because a portion of the narrative included “Police believe that no assault occurred and that the [Wife] was making different allegations up. Neither the [Wife] or [Applicant] had any injuries from an assault and both had conflicting versions”. Having regard to the content of the police narrative of 21 October 2017, the Tribunal made a similar finding in respect of that document.

19    The Tribunal also determined that it would not be safe to apply the contents of the further supplementary documents in favour of a finding that a specific incident of family violence occurred, and limited any possible function to that of generally corroborative documents.

20    It is relevant to ground 1 of the application to note that the Tribunal later in its reasons rejected a contention advanced by the applicant that the police narratives did not constitute a source of information that it could take into account under the terms of para 8.2(2) of the Direction, referring to its findings that the narratives were both authoritative and independent.

21    It is relevant to ground 2 of the application to set out [210] of the Tribunal’s reasons, which also concerns the application of para 8.2(2) (emphasis in original):

Second, it was argued the relevant police who authored the documents put to the Applicant have not been made available for cross-examination. With respect, they do not need to be. This is so for two reasons. First, this Tribunal is not bound by the rules of evidence and may inform itself on any matter in such manner as it thinks appropriate; Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”) ss 33(1)(c). I interpret “in such manner as it thinks appropriate” in s 33(1)(c) of the AAT Act to facilitate recourse to, and reliance upon, the plain wording of paragraph 8.2(2) of the Direction. Second, the disjunctive nature of paragraphs 8.2(2)(a) and (b) is such as to allow the taking into account of allegations of criminality from credible sources for the purposes of conducting the weighing exercise mandated by paragraph 8.2 of the Direction.

22    The Tribunal then made an assessment of the seriousness of the applicant’s family violence, having regard to each of the factors set out in the Direction at para 8.2(3)(a)-(d). In this regard, the Tribunal referred to the totality of the evidence before it, including the oral evidence of the applicant and his wife and also the police narratives and the further supplementary documents. It concluded at [217], after referring to the submissions of the parties:

I am therefore satisfied that, more likely than not, based on the totality of the police documents and the further supplementary documents, the allegations appearing in the police documents against the Applicant are made out for the purposes of the weighing exercise required by the Direction in general and paragraph 8.2 in particular.

23    The Tribunal concluded that primary consideration 2 “weighs, overall, moderately against revocation of the cancellation of the Applicant’s visa”.

24    The Tribunal considered primary consideration 3, the best interests of minor children, and primary consideration 4, the expectations of the Australian community. It then reviewed the “other considerations” identified in the Direction before concluding at [320]:

In considering whether there is another reason to exercise the discretion afforded by s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, I have had regard to the considerations referred to in the Direction. I find as follows:

•    Primary Consideration 1 carries a very strong level of weight in favour of non-revocation;

•    Primary Consideration 2 carries a moderate level of weight in favour of non-revocation;

•    Primary Consideration 3 weighs moderately in favour of revocation;

•    Primary Consideration 4 weighs heavily in favour of non-revocation; and

•    I have outlined the weight attributable to the Other Considerations. I do not consider that the totality of the weight attributable to the relevant Other Considerations (b), (c) and (d), even when combined with the weight I have allocated to Primary Consideration 3, outweigh the significant, combined and determinative weight I have attributed to Primary Considerations 1, 2 and 4;

•    A holistic view of the considerations in the Direction therefore favours the non-revocation of the decision to cancel the Applicant’s visa.

•    Consequently, I cannot exercise the discretion to revoke the mandatory cancellation of the Applicant’s visa.

4.    GROUNDS 1 AND 2 – APPLICATION OF DIRECTION PARAGRAPH 8.2(2)(b)

4.1    Introduction

25    In ground 1, the applicant contends that the Tribunal erred in law by misconstruing the meaning of “independent and authoritative information” in the Direction at para 8.2(2)(b). In the particulars appended to this ground the applicant refers to the Tribunal making seven separate findings that the applicant committed ‘family violence’, at [158] to [182] of the decision, which depended on the police narratives. He submits that the Tribunal erred in finding that the police narratives fell within para 8.2(2)(b). As I have noted, the parties agree that the question of error may be considered by reference to the treatment by the Tribunal of the police narrative dated 22 April 2017, which I have set out at [17] above.

26    In ground 2, the applicant contends that the Tribunal failed to afford him procedural fairness by not taking evidence from the authors of the police narratives or any person competent to speak about their purpose.

4.2    The applicant’s submissions

27    The applicant submits that the police narratives did not constitute evidence but were “mere allegations”.

28    The applicant submits that para 8.2(2) allows family violence to be relevant when either of two conditions are satisfied. Paragraph 8.2(2)(a) is concerned with an offence or charges and a condition is set that the offence or charge must be proved. He submits that when charges have been heard and dismissed in Court, those charges cannot be relevant. He further submits that it would be an unlikely interpretation that the Direction intends that an earlier stage of the criminal process (meaning, as I understand it, the police narratives) could prejudice the applicant.

29    The applicant submits that para 8.2(2)(b) is concerned with the perpetration of family violence and the first condition it sets is that the information is from an “independent and authoritative source”. He submits that information that is from an earlier stage in criminal proceedings cannot satisfy para 8.2(2)(b) because (2)(a) “covers the field for matters which are within criminal proceedings”. Police narratives are material of the kind that must fall within (a) to be relevant.

30    The applicant submits that the word “authoritative” in para 8.2(2)(b) of the Direction refers to a source that can speak on a matter with authority, which means an accepted source of information, an expert or has justification. He submits that the police narratives cannot be considered to be authoritative, because they include hearsay evidence.

31    In his oral submissions the applicant directed attention to the text of the police narratives, submitting that their content was equivocal and ambiguous.

32    In ground 2 the applicant contends that the Tribunal did not afford procedural fairness in respect of the police narratives because it did not take evidence from any person who was competent to speak about the purposes of the narrative generally or the authors of the police narratives when their proper use was a live issue.

4.3    Consideration

33    Grounds 1 and 2 concern the use made by the Tribunal of the police narratives.

34    I have in section 3 above summarised the decision of the Tribunal. Relevantly for these grounds, after identifying the terms of para 8.2, the Tribunal considered the identity of the persons who were the members of the applicant’s family and then addressed the evidence concerning family violence, including evidence given orally by the applicant and his wife, who is the alleged victim of the family violence. The Tribunal then addressed the police narratives and other material indicating that the applicant had engaged in family violence before assessing the weight to be given to the family violence consideration, by reference to para 8.2(3). After taking into account the applicant’s submissions that it should not rely on the police narratives, the Tribunal held at [217] that it was satisfied that, more likely than not, based on the totality of the police narratives and the further supplementary documents, the allegations set out in the police narratives against the applicant are made out for the purposes of the weighing exercise required by the Direction in general and para 8.2 in particular.

35    In relation to ground 1, in my view the applicant’s approach to the construction of para 8.2(2)(b) is incorrect. When read as a whole, para 8.2(2) identifies the circumstances where the receipt by a decision maker of information in relation to the perpetration of family violence is to be considered relevant. In para 8.2(2)(a) this will arise upon a non-citizen being convicted of an offence, found guilty of an offence or having charges proven (however they are described) that “involve” family violence. The definition of “family violence” is broad and extends beyond physical assault to include derogatory taunts, destruction of property and includes acts that fall within the ambit of what might broadly be termed acts of coercive control: see definition at [8] above. Consideration of “family violence” is also relevant to a decision maker where, under para 8.2(2)(b), there is information or evidence from independent and authoritative sources indicating that the non-citizen is or has been involved in the perpetration of family violence. Sub-paragraph (b) is self-evidently of broader scope than (a). At its widest, it identifies that the decision maker must take into account as a consideration not only evidence, but information indicating the non-citizen’s perpetration of family violence. This is relevantly subject to the limitation that it is from “independent and authoritative sources”.

36    However, para 8.2(2) does not establish a particular standard for fact finding. It presents the circumstances in which the consideration crosses the threshold of “relevance” by reference to the identified information. The question of what may be considered to be an independent and authoritative source is left to the decision maker, being a question of evaluation having regard to the nature of the conduct and the circumstances of the particular case. This is a familiar task and is to be understood in the context of s 33(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act), which provides for the Tribunal to conduct a proceeding with as little formality and technicality as required by the case, noting that the Tribunal is not bound by the rules of evidence, but may inform itself on any matter in such manner as it thinks appropriate.

37    I do not accept the applicant’s contention that where information (or evidence) may be said to arise from a step along the way in a process of criminal investigation, as he characterises the police narratives, that such information may not separately be considered for the purposes of para 8.2(2)(b) not least because, as a matter of construction, the words “and/or” placed between (a) and (b) expressly require that each be given separate consideration. Nothing in the language of (b) suggests that information or evidence potentially relevant to procuring a conviction of family violence within (a) should be excluded. Nor does it appear, having regard to the “serious concerns” of the Government set out in para 8.2(1), that the purpose of para 8.2(2)(b) is intended to be so confined.

38    Nor do I consider that the Tribunal erred in concluding that the police narratives may be considered to be independent and authoritative sources. The use of such language is familiar within the Direction. Paragraph 7(1) provides that in applying the primary and other considerations, information and evidence from independent and authoritative sources should be given appropriate weight. Paragraphs 7(2) and (3) address the weight to be given to primary and other considerations. In the case of para 8, para 8.2(2) identifies the circumstances where family violence may be relevant in the decision making process and para 8.2(3) identifies certain listed factors to which weight must be given in considering the seriousness of the family violence.

39    In my view the police narratives are capable of amounting to information from an independent and authoritative source. On the face of those reports, named police officers make a contemporaneous note of a complaint made to them, recording the time of the complaint. The police officers are “independent” because they have no association with the controversy currently before the Tribunal or the parties. The report is a potentially “authoritative source” because it may be trusted to be accurate or reliable. It is an “authoritative source” in the sense that such a narrative may be “an accepted source of information”, not as to the truth of the statements attributed to various persons, but rather as to the accuracy of the information that is recorded. The degree of trust to be placed in the source and its reliability as information pertinent to the conclusions to be reached must in each case be weighed up by the decision maker, bearing in mind the circumstances of each case.

40    The reasoning of the Tribunal at [169] and the first sentence of [170] are directed in terms to finding that the requirements of para 8.2(2)(b) were met, such that the Tribunal could form the view that the circumstances relevant to the consideration of family violence had arisen. This involved consideration of whether the subject police narrative could be considered independent and authoritative. Having done so, the Tribunal proceeded in the latter part of [170] and [171] to consider whether the applicant had been involved in the perpetration of family violence. At this point, the Tribunal did not confine its consideration to the content of the police narrative, but also took into account the oral and written evidence of the applicant and his wife, which it had earlier summarised in some detail. It concluded, on the basis of the whole of the evidence, that he had been involved in family violence in relation to the incident identified in the police narrative, rejecting the denials of the applicant and his wife. After making findings pertinent to para 8.2(2)(b) for each of the police reports and the supplementary documents, the Tribunal returned to assess the seriousness of the applicant’s family violence by reference in terms to each of the factors in para 8.2(3) having regard to the totality of the evidence. It expressed its conclusions at [217] to [218].

41    It might be said that there’s some awkwardness in the language of paras 8.2(2)(b) and 8.3. The former presents a low threshold of relevance to be assessed having regard to the nominated sources. The latter involves consideration of the seriousness of the family violence, which involves a broader weighing exercise having regard at least to the four factors identified. There is some overlap insofar as in para 8.2(2)(b) the decision maker is obliged to weigh up whether or not the nominated information or evidence provides an indication of family violence. It appears from the reasoning of the Tribunal that it understood these tasks.

42    During the hearing, counsel for the applicant submitted that because the police narratives were provided to the Tribunal by the Minister, rather than the police directly, and the Minister was not merely a “vessel” for the documents but was involved in selecting which ones to provide, the narratives should not be considered to be independent information. He further submitted that the Tribunal erred in failing to consider the reliability or impartiality of how the Minister presented that evidence. I reject this submission. It was not in dispute that the narratives were police records that had been extracted from documents produced on subpoena. Furthermore, the applicant was represented before the Tribunal and had the ability to tender any additional documents if he had concerns about the provenance or completeness of the police narratives. The Tribunal was entitled to rely on the documents that were tendered.

43    In my view it cannot be said that the Tribunal erred in concluding that there was information from independent and authoritative sources in the form of some of the police narratives indicating the applicant’s involvement in the perpetration of family violence within para 8.2(2)(b). To the extent that the appellant criticises the Tribunal’s interpretation of the police narratives in assessing the weight to be given to them, that is a challenge to the merits of the fact finding by the Tribunal and is beyond the scope of permissible review.

44    Accordingly, ground 1 of the application must fail.

45    Ground 2 of the application concerns an alleged denial of procedural fairness based on the contention that the Tribunal failed to afford the applicant an opportunity to question the authors of the police narratives. I am not satisfied that this ground has been established.

46    The final words of para 8.2(2)(b) add an explicit requirement that the non-citizen being considered under ss 501 or 501CA has been afforded procedural fairness. No doubt this requirement has been included within the Direction to emphasise to decision makers that where information or evidence of the type set out in (b) is to be considered, procedural fairness must be given. There was (correctly, in my view) no suggestion on the part of the applicant that the content of the obligation of procedural fairness is any different or more onerous when arising under para 8.2(2)(b) than that ordinarily required by the authorities.

47    There is no doubt that the Minister presented his case to the Tribunal on the basis that the police narratives should be received for the purpose of assessing the applicant’s involvement in family violence. The reasons given by the Tribunal demonstrate that the applicant was cross-examined about the police narratives where they indicated that he had been the subject of complaints of violence against his wife. He was also cross-examined about the further supplementary documents that referred to past family violence. The applicant’s wife also gave evidence and was cross-examined about the material that indicated that she had made complaints in the past to the police about family violence. The Tribunal’s reasons indicate that both witnesses were challenged on contradictions between these documents and their denials that family violence had taken place. Plainly, the applicant was aware that the Minister intended to rely on the police narratives. The applicant was also given the opportunity to make submissions about the Tribunal’s proposed reliance on these materials, which his legal representatives did, as noted in the Tribunal’s reasons at [208] to [215].

48    In my view, it cannot be said that in the circumstances of the present case the obligation to afford procedural fairness extended to an additional requirement that the Tribunal permit the applicant to cross-examine the police officers who were the authors of the police narratives. As noted, para 8.2(2) concerns the threshold question of relevance. The obligation to afford procedural fairness required that the applicant be aware of the issue and have an opportunity to address it. No additional obligation to afford procedural fairness arises under that paragraph such that cross-examination of the respective police officers (or other persons who could speak to the contents of the reports) was required.

5.    GROUND 3

49    In ground 3 the applicant contends that the Tribunal misconstrued the meaning of the term “the relationship is non-parental” at [227], where it was considering the best interests of minor children in Australia in accordance with primary consideration 3 of the Direction. As pleaded, the ground contends that the Tribunal failed to find the parental relationship that the applicant had with his daughter, and accordingly fell into error.

50    The alleged error arises in the context of para 8.3(4)(a) of the Direction, which is part of a list of factors to be considered by decision makers in determining the best interests of minor children. That sub-clause provides:

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);

51    At [222] the Tribunal noted that the applicant’s younger daughter falls within primary consideration 3. It found at [223] to [224] that, although he enjoyed a good relationship with her, he had never been responsible for her day-to-day care and that his wife had sole parental responsibility for the child. It also held that pursuant to orders obtained from the Children’s Court of New South Wales, although he is able to see and spend time with her at a minimum of once per week until she attains 18 years of age, he is prevented from residing with her.

52    The Tribunal found at [227] (emphasis added in bold):

The unfortunate circumstance for this Applicant relative to this sub-paragraph is that for virtually all of the life of the Younger Child, each of the four abovementioned weight-reduction factors work against him. His relationship with the Younger Child can be safely found to have been a mainly non-parental one and this position now finds its endorsement in the above mentioned orders made in mid-2020. While there can be said to be an existing relationship, there can be no denying that he has been absent from her life for very long periods. While it is propounded that there has been contact between the Applicant and the Younger Child it is difficult to discern whether that contact has been “meaningful”. I will err on the side of caution and…find that whatever contact there has been, has been meaningful. …

53    This ground depends for its viability on the proposition that the Tribunal meant, in saying that the relationship with the applicant’s daughter is “mainly non-parental” that he was not one of the child’s biological parents. That proposition does not survive either the context of the earlier findings of the Tribunal, which clearly acknowledge the applicant’s biological role as the father, or the language of [227]. By the adverb “mainly”, the Tribunal was clearly expressing the view that the applicant for the most part did not perform the role of a parent to the child, despite their biological connection as father and daughter. Ground 3 cannot succeed.

6.    DISPOSITION

54    For the reasons set out above the application must be dismissed. The applicant must pay the Minister’s costs of the application.

Associate:

Dated:    3 February 2023