Federal Court of Australia
Rukuwai v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 67
ORDERS
Applicant | ||
AND: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent | |
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. The first respondent’s title in the proceedings be amended to be “Minister for Immigration, Citizenship and Multicultural Affairs”.
2. The application is dismissed.
3. The applicant pay the first respondent’s costs as agreed or taxed under r 40.12 of the Federal Court Rules 2011 (Cth).
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Raper J:
Introduction
1 The applicant brought an application for judicial review of a decision of the second respondent, the Administrative Appeals Tribunal (Rukuwai and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 2201 (T)). In that decision, the Tribunal affirmed a decision of the delegate of the first respondent (Minister) to refuse to revoke the cancellation of the applicant’s Special Category (Class TY) (Subclass 444) visa, pursuant to s 501CA(4) of the Migration Act 1958 (Cth).
2 The applicant is a 41-year-old citizen of New Zealand who first arrived in Australia on 4 January 1989. She most recently held the visa. She has spent the majority of her life in Australia and is the mother of eight children, including minor children who at the time of the cancellation decision on 17 February 2021 were 15 (AA), 12 (SA), 11 (RA), 4 (TK), 3 (AK) and just under 1 (ArK) years of age.
3 The applicant’s grounds of review comprise:
(1) a failure by the Tribunal to carry out its statutory task of review by not considering whether the applicant’s former spouse was a “family member” for the purpose of the definition of “family violence” within Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction 90); and
(2) the Tribunal’s decision was otherwise legally unreasonable on the basis that either it was not open to treat the applicant’s former spouse as a “family member” of the applicant or to make two findings regarding the effect of the removal of some of the applicant’s minor children and her ability to maintain contact by electronic means.
4 The applicant’s personal circumstances are deeply affecting. For children to be deprived of contact with their mother and a mother to be removed from her children, particularly at such a young age, is extremely serious. The circumstances bring into stark relief the very limited role of this Court when undertaking judicial review. It is not able, despite the acuteness of the circumstances, to assess the matter on its merits – its role is supervisory and may only lead to intervention where jurisdictional error or legal unreasonableness is established.
5 For the reasons which follow, I decline the applicant’s application.
Familial history
6 The applicant had her first child on 11 November 2000, but her relationship with the father did not subsist. She then entered a relationship with “JA”, marrying in 2001, and they had four children together.
7 From 2001 to 2015, the applicant led a happy and stable life as a homemaker who was actively involved with her children and her extended family.
8 As noted at [17] below, from 2015 the applicant experienced dramatic life changes including the breakdown of her marriage and commencement of the casual use of methamphetamine. It was not clear on the evidence when a formal decree of divorce was granted.
9 The applicant then entered into a relationship with “CK” and they had three children together in 2016, 2018 and 2020. CK moved in with the applicant and her children in February 2017. The Tribunal described CK as “violent, brutal, manipulative, and unstable” (at T[37]) and was in prison, at least at the time of the Tribunal’s decision (at T[130]).
10 In 2017, the applicant’s eldest daughter moved in with the applicant’s mother, and the applicant’s eldest son moved in with his father, JA. The applicant retained full time care of her other four children.
11 In 2018, two of the applicant’s sons moved in with the applicant’s sister and one of the applicant’s daughters moved in with her father JA. That same year, JA was awarded full parental rights over the children.
12 From 2018 to 2021, the applicant’s relationships further deteriorated and the three children she had with CK began living with the applicant’s eldest child, KT, with whom they remain, as stated by the Tribunal at T[49]–[51]:
49. At this point, the applicant describes herself as living in fear and alienated from friends, family, and any support networks she previously had. She concedes this alienation was not just as a consequence of CK’s controlling behaviour.
50. CK’s violence escalated and in repeated incidents beginning around August 2018, the applicant suffered severe bruising and broken ribs. During a further assault in January 2019 the applicant rang police and obtained a DVO against CK. This did not end the violence and appeared to cause an escalation in the manipulation engaged in by CK which included elaborate demonstrations of a desire to self-harm.
51. In mid-2019 the applicant discovered that she was pregnant with her third child with CK, ArK. At that point the applicant was homeless, and her older children with CK were in the care of her daughter KT. The applicant and CK placed the children with KT initially on a temporary basis. [sic] but due to their chaotic lives ended up leaving the children with KT on a permanent basis.
(Footnotes omitted.)
13 In February 2020, the applicant’s youngest child ArK was born and immediately removed from the applicant’s care by the Queensland Department of Child Safety, Youth and Women. The applicant has not had any face to face contact with ArK since she was five months old and where those visits were supervised by a Child Safety Officer.
14 In October 2021, the applicant appeared in the Beenleigh Magistrates Court for charges of breaching a Domestic Violence Order (DVO) taken out by the applicant’s eldest daughter KT (who is currently aged 22 years old) who retained custody of the applicant’s children with CK. The breach comprised contacting KT by writing letters to KT’s address, with her concern being that CK would become aware of KT’s address and risk violence by him at her home.
15 The applicant presently has effectively lost contact with all of her children except her youngest child (with whom she has weekly video calls facilitated by the Department of Child Safety) and one of her sons who she contacts by text.
Background to relevant criminal offending
16 The applicant’s first offence was in 2005, where she assaulted a police officer after he attempted to break up a fight she was having with another person.
17 In 2015, the applicant began casual use of the drug methamphetamine or “ice”. In the following year her marriage also broke down and her use of ice became more frequent.
18 The relevant incident of family violence, to which grounds 1 and 2 of the applicant’s amended originating application relate, was summarised by the Tribunal at T[33]–[36]:
33. In February 2017, after both the applicant and JA had re-partnered, the applicant sent JA the following text message:
Get her fucken mongrel kids under control too…Another one of the kids come home and say hers have hit them and I’ll be around with a fucken bat.
Why the fuck u even want our kids around those fukn animals is beyond me…
34. At the hearing of this application the applicant claimed that she did not intend to threaten a physical assault and denied that her former partner would have been scared by the message. I do not accept that assessment. The text is expressed in menacing terms. At the point in time when it was sent, the applicant was known by JA to be a user of ice who had a conviction for assaulting a police officer. I am satisfied that JA and his new partner would have been fearful as a consequence of the text.
35. JA reported the matter to the police and the applicant was charged with using a carriage service in a menacing, harassing or offensive manner. A conviction was recorded, and the applicant was fined. A domestic violence order (DVO) had already been taken out by JA but following this incident the order was extended to his new partner and her children. The applicant also took out a DVO against JA.
36. Over the following months the applicant repeatedly breached the DVO, but not in ways which, in my assessment, involved threats of violence.
(Emphasis in original, footnotes omitted.)
19 In 2018, the applicant’s use of ice increased from regular to daily. In addition, there were changes to custody arrangements and the applicant spent less time with her children.
20 From 2018 to 2020, the applicant engaged in extensive criminal offending. The most significant offence occurred in September 2019 where the applicant engaged in dangerous driving, for which she was sentenced on 13 January 2021 to 18 months’ imprisonment. This history was described by the Tribunal (of which no issue is taken in the present application) at T[48], T[53] and [58]:
48. In the following 3 years the applicant accumulated a large number of convictions for stealing from shops, stealing from petrol stations, driving while unlicensed, driving a car with number plates that were reasonably suspected of being stolen or unlawfully obtained, possession of tainted property (numberplates), possessing drug paraphernalia and possessing prohibited drugs. She failed to attend court in accordance with undertakings and failed to comply with bail conditions. Her complete criminal record is detailed in the applicant’s Criminal Charge Sheet dated 25 November 2021. It is extensive. The applicant’s daily use of ice from around mid-2018 and the need to fund it helps to explain the applicant’s criminality in this period.
…
53. In September 2019 the applicant engaged in the conduct which became the subject of a dangerous driving conviction. It is by far the most serious offence committed by the applicant. The incident is comprehensively described in the Queensland Police Service Court Brief in relation to the dangerous operation of a vehicle charge laid in relation to the conduct. The applicant pleaded guilty to the charge and was sentenced the basis of these facts:
On the evening of 14 September 2019 Police observed a black Mitsubishi with what appeared to be a fake registration plate. Police pulled up beside the vehicle and observed…Hayley Rukuwai [sic] to be the driver of the vehicle, as they had had previous dealings with the defendant. Police spoke with the rear passenger as his window was down and asked him to get the driver to pull up around the corner…The passenger said “Haley, cops want you to pull over there.” As the lights at the intersection …changed to green the defendant accelerated away from Police as they activated their lights and sirens. Police continued to follow the vehicle with lights and sirens activated as they could see the defendant was not going to stop at the red light at Blackwood Street intersection and wanted to warn the public of the oncoming vehicle.
Police pulled over and deactivated lights and sirens approximately 10 metres through the lights…as the defendant narrowly missed a silver sedan as it turned right from Blackwood Street and continued to accelerate away from Police along Ewing Road on the wrong side of the road at approximately 120km/hr. The speed limit for this section of roadway is 60km/hr. It was night time and vehicles approaching the offending vehicle could not see the defendant was on the wrong side of the road until they had almost collided. At least 3 vehicles needed to take evasive action to avoid colliding with the vehicle the defendant was driving. …Police watched from a stationary position on Ewing Road as the defendant drove through the red light at high speed at Smith and Ewing Rds, Woodridge.
…
58. The applicant was given a light sentence, but it appears that she was remanded in custody awaiting the hearing of a long list of charges still outstanding. On 13 January 2021 she pleaded guilty and was sentenced in relation to the other charges including the dangerous driving offence. The applicant was sentenced to 18 months in prison in relation to the dangerous driving offence.
(Emphasis in original, footnotes omitted.)
Visa cancellation
21 On 17 February 2021, the applicant’s visa was mandatorily cancelled pursuant to s 501(3A) of the Act as a result of not passing the character test. This was on the basis that she had a “substantial criminal record” as a result of being sentenced to a term of imprisonment of 12 months or more, which was being served on a full-time basis: ss 501(6)(a) and 501(7)(c). The applicant was invited to make representations to the Minister about revocation of the original cancellation decision.
22 On 19 February 2021, the applicant applied for revocation of the visa cancellation and made representations in support of revocation.
23 On 28 March 2022, the delegate decided not to revoke the cancellation of the applicant’s visa. On 1 April 2022, the applicant applied to the Tribunal for review of the delegate’s decision not to revoke the cancellation.
24 On 21 June 2022, the Tribunal affirmed the delegate’s decision and written reasons were provided on 8 July 2022.
25 The applicant remains in immigration detention.
Summary of the relevant statutory provisions
26 Section 501(3A) of the Act provides for the mandatory cancellation of a visa if the Minister finds that the person does not pass the character test:
501 Refusal or cancellation of visa on character grounds
…
(3A) The Minister must cancel a visa that has been granted to a person if:
(a) the Minister is satisfied that the person does not pass the character test because of the operation of:
(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii) paragraph (6)(e) (sexually based offences involving a child); and
(b) the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
27 A person will not pass the character test where they have a substantial criminal record, which arises where, inter alia, a person has been sentenced to a term of imprisonment of 12 months or more: ss 501(6)(a) and (7)(c).
28 The Minister may revoke the original decision (made under s 501(3A)) pursuant to s 501CA, which provides:
501CA Cancellation of visa—revocation of decision under subsection 501(3A) (person serving sentence of imprisonment)
(1) This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
...
(3) As soon as practicable after making the original decision, the Minister must:
(a) give the person, in the way that the Minister considers appropriate in the circumstances:
(i) a written notice that sets out the original decision; and
(ii) particulars of the relevant information; and
(b) invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
(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.
Direction 90
29 Direction 90 comprises a direction given by the Minister under s 499 of the Act which the Tribunal was bound to comply with when exercising its discretion under s 501CA(4).
30 “Family violence” is defined in para 4(1) of Direction 90 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.
(Emphasis in original.)
31 There is no definition of “family member” in Direction 90. As recently noted by the Full Court in Deng v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 115; 403 ALR 232 at [16]:
The expression “member of the person’s family” is not defined in Direction 90. Nor is the word “family”. However, s 5G of the Migration Act provides that certain persons, including a de facto partner, are taken to be members of a person’s family. The expression “de facto partner” is defined in s 5CB of the Migration Act…
32 Sections 5CB, 5F (which is relevant to this application but was not in Deng) and 5G provide:
5CB De facto partner
De facto partners
(1) For the purposes of this Act, a person is the de facto partner of another person (whether of the same sex or a different sex) if, under subsection (2), the person is in a de facto relationship with the other person.
De facto relationship
(2) For the purposes of subsection (1), a person is in a de facto relationship with another person if they are not in a married relationship (for the purposes of section 5F) with each other but:
(a) they have a mutual commitment to a shared life to the exclusion of all others; and
(b) the relationship between them is genuine and continuing; and
(c) they:
(i) live together; or
(ii) do not live separately and apart on a permanent basis; and
(d) they are not related by family (see subsection (4)).
(3) The regulations may make provision in relation to the determination of whether one or more of the conditions in paragraphs (2)(a), (b), (c) and (d) exist. The regulations may make different provision in relation to the determination for different purposes whether one or more of those conditions exist.
Definition
(4) For the purposes of paragraph (2)(d), 2 persons are related by family if:
(a) one is the child (including an adopted child) of the other; or
(b) one is another descendant of the other (even if the relationship between them is traced through an adoptive parent); or
(c) they have a parent in common (who may be an adoptive parent of either or both of them).
For this purpose, disregard whether an adoption is declared void or has ceased to have effect.
…
(1) For the purposes of this Act, a person is the spouse of another person (whether of the same sex or a different sex) if, under subsection (2), the 2 persons are in a married relationship.
(2) For the purposes of subsection (1), persons are in a married relationship if:
(a) they are married to each other under a marriage that is valid for the purposes of this Act; and
(b) they have a mutual commitment to a shared life as a married couple to the exclusion of all others; and
(c) the relationship between them is genuine and continuing; and
(d) they:
(i) live together; or
(ii) do not live separately and apart on a permanent basis.
(3) The regulations may make provision in relation to the determination of whether one or more of the conditions in paragraphs (2)(a), (b), (c) and (d) exist. The regulations may make different provision in relation to the determination for different purposes whether one or more of those conditions exist.
Note: Section 12 also affects the determination of whether the condition in paragraph (2)(a) of this section exists.
5G Relationships and family members
(1) For the purposes of this Act, if one person is the child of another person because of the definition of child in section 5CA, relationships traced to or through that person are to be determined on the basis that the person is the child of the other person.
(2) For the purposes of this Act, the members of a person’s family and relatives of a person are taken to include the following:
(a) a de facto partner of the person;
(b) someone who is the child of the person, or of whom the person is the child, because of the definition of child in section 5CA;
(c) anyone else who would be a member of the person’s family or a relative of the person if someone mentioned in paragraph (a) or (b) is taken to be a member of the person’s family or a relative of the person.
This does not limit who is a member of a person’s family or relative of a person.
(Emphasis in original.)
33 Notably, the definition of family member in s 5G is “for the purposes of this Act” and states that its definition “does not limit who is a member of a person’s family or relative of a person” (which appears to mean family member): s 5G(2). The list of people mentioned in s 5G(2) is not exhaustive. Nowhere else in the Act is the term “family member” otherwise defined.
34 The existence of “family violence” assumes relevance in respect of a number of parts of Direction 90: para 8 of Direction 90, entitled “Primary considerations”, provides in respect of making decisions under s 501CA(4) 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; and
(4) expectations of the Australian community.
35 In the context of considering Primary Consideration 1 (protection of the Australian community), para 8.1.1 prescribes what is to be taken into account when considering the nature and seriousness of the conduct. The relevant portions relating to family violence are extracted as follows:
(1) In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to the following:
a) without limiting the range of conduct that may be considered very serious the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
i. violent and/or sexual crimes;
ii. crimes of a violent nature against women or children, regardless of the sentence imposed;
iii. acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
b) without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
i. causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
ii. crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
iii. any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion (for example, section 501(6)(c));
iv. where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, , [sic] or an offence against section 197A of the Act, which prohibits escape from immigration detention;
c) with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
d) the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;
e) the cumulative effect of repeated offending;
f) whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
g) whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour).
36 Paragraph 8.2 concerns Primary Consideration 2 (whether the conduct engaged in constituted family violence) and states:
8.2 Family violence committed by the non-citizen
(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 non-citizen’s migration status, should the non-citizen engage in further acts of family violence.
37 Paragraph 8.3 concerns Primary Consideration 3 (the best interests of minor children in Australia) and in considering the same, identifies a number of factors which include (at para 8.3(4)(g)):
(4) In considering the best interests of the child, the following factors must be considered where relevant:
…
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;
38 Paragraph 8.4 concerns Primary Consideration 4 (the expectations of the Australian community) and identifies “acts of family violence” as being indicative of “serious character concerns” for which “non-revocation of the mandatory cancellation of a visa” – “may be appropriate simply because of the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa”.
The applicant’s representations to the delegate and the Tribunal regarding Direction 90
39 Of relevance to this application, the applicant’s representations regarding Direction 90 were to the effect that the applicant’s conduct (towards her former spouse) did not fall within the definition of “family violence” (rather than as now asserted for the purposes of grounds 1 and 2).
40 When before the delegate, it was submitted on the applicant’s behalf, by Sisters Inside Inc, under the heading “Protection of the Australian Community”:
Protection of the Australian community from criminal and other serious conduct: acts of family violence; conduct to date.
The crimes committed by Ms Rukuwai do not fall under the scope of family violence as described within Direction 90. Direction 90 provides evidence of how seriously the Australian government considers family violence. Ms Rukuwai has detailed in her statement the reasons she has a series of DVO against her name, and the breaches that have occurred in relation to her failure to appear in court to address these. Ms Rukuwai was herself a victim of a very violent man. His violent record has been acknowledged by Child Safety and it was his violence and her inability to escape it that resulted in Ms Rukuwai losing custody of her youngest child. The offences listed in the courts related to the DVO against Ms Rukuwai do not reflect any aggressive or violent action she has committed against a person or child. They relate to instances of failed communication during a family marriage breakdown and the care of her three youngest children.
Ms Rukuwai recognises the seriousness of her dangerous driving and is remorseful. She is aware of the potential impact dangerous driving presents to the broader community and her passengers. Her crimes were committed during a period of her life when she was a victim of an extremely violent man and she was suffering with drug addiction. While she does not want these factors to be taken as a means of limiting her responsibility her acknowledgement of these facts is part of her rehabilitation.
(Emphasis in original.)
41 The applicant submitted in her own submission (including her handwritten amendments), as follows:
Between 2016 and 2019 is when I have documented times of contravening a DVO. These relate only to me contacting my former husband [JA] regarding the children. They are not related to violence or threats of violence. Nor have I ever assaulted them, stalked them or damaged their property. When my daughter first had my youngest children in my care, the issue went to court and because I was not well due to my pregnancy, I failed to appear in court and an order was made in my absence. The order with my daughter has never been breached.
2. WHETHER CONDUCT ENGAGED IN CONSTITUTES FAMILY VIOLENCE
I note the emphasis Direction 90 places on family violence. My experience at the hands of my former partner [CK], closely mirrors the definition of family violence listed in the Direction. I am therefore appalled that any DVO’s taken out against me may be considered under this principle of the Direction. And I would argue that my conduct does not meet the definition of family violence under this Direction. It is extremely traumatic I to [sic] have to detail these events in my life, and their long term effects.
The DVO’s against me need to be considered carefully in order to reach an understanding that my behaviour does not constitute family violence as considered by Direction 90.
(Emphasis in original.)
42 Before the Tribunal, the applicant, when addressing “Domestic Violence Issues”, in her “Statement of Facts, Issues and Contentions”, stated the following:
Domestic violence issues
38. Once again, the Applicant admits to the facts alleged and relies on Attachment H in the response of Document G3.
39. Once again, the Applicant should not be judged on her conduct in circumstances where she suffered violence and abuse by her partner and other matters.
40. In light of other acknowledgments by the decision maker and the evidence supplied, it is contended that the Applicant shall not pose a risk of re-offending.
(Emphasis in original.)
43 Such that it was unsurprising that the Minister’s submission comprised:
The Minister contends that the applicant has engaged in threatening and other behaviour which caused [JA] and [KT] to be fearful, which [sic] conduct captured within the definition of family violence in paragraph 4 of Direction 90. Accordingly, the applicant has been convicted of offences which involve family violence and that this consideration weighs against revocation.
The Tribunal’s decision
44 There was no dispute that the applicant did not pass the character test prescribed by s 501(6) by reason of her criminal offending. Accordingly, the Tribunal’s decision focused on whether there was “another reason” why the cancellation should be revoked pursuant to s 501CA(4)(b)(ii): at T[5], [17]. In this respect, the Tribunal had regard to Direction 90.
45 The Tribunal first went through its findings of fact, in which it dealt with, in detail, the applicant’s work, social and criminal history (at T[23]–[66]) and then briefly described the applicant’s present circumstances: at T[67]–[68].
46 The Tribunal then went through each of the matters which Direction 90 required it to consider in the applicant’s case.
47 Primary Consideration 1 (protection of the Australian community) was first considered by the Tribunal, having regard to the two matters provided for in para 8.1(2) of Direction 90 being:
(a) The nature and seriousness of the non-citizen’s conduct to date; and
(b) The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
48 In respect of (a), the Tribunal found that the applicant’s offending was “very serious” predominantly due to her long history of offending that had become more serious with time and three particularly serious offences, being her assault on a police officer in 2005 (see above at [16]), her family violence offence (see above at [18]) and her dangerous driving offence (see above at [20]): at T[73]–[84].
49 Given the prominence of the Tribunal’s findings with respect to the family violence offence in the applicant’s first two grounds of review, it is prudent to extract those findings in full (in the context of Primary Consideration 1):
76. The second significant offence is a family violence offence. The applicant breached the domestic violence order to which she was subject and threatened violence towards JA and his partner. I am satisfied that was an act of family violence as defined in the Direction.
77. Family violence is defined to mean:
…violent, threatening or other behaviour by a person that…causes the family member to be fearful.
78. I am satisfied that the sending of the text in 2017, which stated ‘I’ll be around with a fucken bat’, at a point in time when her former partner new that the applicant both used methamphetamine and had at least one criminally violent incident in her past, did cause her former partner to be fearful. The fact that the matter was reported to the police and charges were proceeded with is consistent with this conclusion.
79. I am therefore satisfied that the applicant engaged in an act of family violence. Under the Direction this should be viewed very seriously.
(Emphasis in original.)
50 In respect of (b), the Tribunal concluded that the “critical question” was whether the applicant could remain drug free, finding that if the applicant remained drug free she would only pose a “very small risk of re-offending”: at T[87]. However, despite what it considered a “strong chance” and “promising signs” that she will remain drug free, it was satisfied that there is a significant risk that the applicant will resume drug use and offending which poses a serious risk to the safety of the Australia community: at T[102]. This conclusion arose from the fact that the applicant’s lengthy history of drug-taking only stopped when she was incarcerated (at T[93]–[94]), the lack of protective factors to maintain her sobriety upon her release (supported by the fact that her character witnesses were “figures from the distant past” apart from her mother) (at T[96], [98]–[100]), her lack of candour with respect to her drug use and its consequences (at T[97]), and the highly addictive nature of ice: at T[101]. However, the Tribunal also concluded it was unlikely that the applicant would engage in violent offending considering the only conviction relating to violence was the 2005 assault on police: at T[89]–[90].
51 In the context of Primary Consideration 2 (whether the conduct engaged in constituted family violence), the Tribunal found the family violence engaged in by the applicant was “at the very lowest end of seriousness” (at T[105]) and weighed “only to the smallest degree” against revocation: at T[106]. The Tribunal’s findings are extracted for completeness:
Primary Consideration 2 – Family violence committed by the non-citizen
103. Although the applicant has breached domestic violence orders on a number of occasions, I am satisfied that only one of the breaches involved an act of family violence as defined in Direction 90. That incident involved the applicant making credible threats of violence to her former spouse via text. I am satisfied that the applicant was convicted of an offence that involved family violence.
104. While it is of concern that the applicant’s daughter who has custody of the applicant’s youngest children, felt the need to take out a DVO against the applicant and that it was breached, I do not have sufficient details of the basis for the making of the DVO to determine what concern prompted KT to make the original application. I am satisfied that the breaches which resulted in the conviction – namely the sending of letters to her children – were not acts of family violence as defined. The applicant’s subsequent breaches of the DVO obtained by JA are similarly technical in nature and do not fall within the definition of family violence.
105. In these circumstances the family violence engaged in by the applicant is at the very lowest end of seriousness. There was a single threat of violence which made a family member fearful. Although the resulting DVO was breached in other ways, I am not satisfied that anything the applicant did in breach of the order made a family member fearful. She has not repeated the threats of violence or engaged in any other behaviour that satisfies the definition of family violence.
106. Consequently, this consideration weighs against revocation of the visa cancellation, but only to the smallest degree.
(Emphasis in original.)
52 Then Primary Consideration 3 (the best interests of minor children in Australia affected by the decision) was considered by the Tribunal. Due to the significant number of minor children possibly affected by the non-revocation decision, the Tribunal dealt with the best interests under broad categories (which were identified at T[109]–[110]):
(1) minor children from the applicant’s marriage to her JA (her former husband) (at T[111]–[119]);
(2) minor children from the applicant’s relationship with CK (her second partner) (at T[120]–[130]); and
(3) minor children in the applicant’s extended family (nieces and nephews) (at T[131]–[132]).
53 Given that the applicant’s application only contests the findings for category (2) (in ground 3 of the amended originating application), it is only necessary to consider for the purpose of this appeal the Tribunal’s findings with respect to those minor children from her relationship with CK, which were as follows (at T[120]–[130]):
Children with CK
120. The applicant had three children with CK. The two older ones were left with the applicant’s eldest daughter KT in mid-2019. The applicant has not spoken to them since 2019. At that time the children were around two and a half and one and a half.
121. The applicant left them with KT because of violence and uncertainty which characterised her life at the time.
122. KT is also is [sic] raising the applicant’s youngest child ArK. ArK was removed from the applicant’s care a few days after she was born and placed with KT by the Department of Child Safety. ArK was around five months old when the applicant was taken into custody.
123. The applicant does have contact with ArK which is facilitated by the Department of Child Safety. She now has a Child Safety Officer and is described as ‘having weekly video calls with her daughter [ArK]’.
124. The relationship between the applicant and KT appears to be strained. On the applicant’s account the relationship deteriorated when she signalled to KT that she wanted to take her children with her back to New Zealand. KT has sought and obtained orders from the Family Court on 12 February 2020 that formally gave her custody of the two older children and the applicant has no custody rights at this point in relation to those children.
125. The applicant’s plan is to obtain orders which facilitate access to these children initially with her ultimate goal being to obtain orders that the children be returned to her care.
126. This means that if the applicant is released back into the Australian community there is likely to be a dispute about the custody and care of these children.
127. In relation to the mandatory factors in paragraph 8.3(4) I note the following:
(a) These children have not been in the applicant’s care since 2019 in the case of TK and AK and in the case of ArK, she has never been in the applicant’s care. There has been contacted [sic] facilitated by the Department of Child Safety with ArK but there has been no contact with the older two children and no evidence that TK [sic] was prepared to facilitate it. The applicant is the children’s mother which in and of itself is important, but she has not performed a parental role for the children for a long time and never performed that role in relation to ArK. There has now been an absence of around three years from the older children’s lives and the applicant has been separated from ArK from birth;
(b) There is a significant question mark over whether the applicant will play a positive parental role in relation to the children in the future. She has no access rights at all in relation to TK and AK, but it is possible that may change. The applicant currently has limited contact with ArK and again that may change. While the applicant has a strong desire to take on a parental role in relation to these children, and she has demonstrated prior to 2016 that she is capable of performing such a role, there are many question marks about whether she is:
(i) capable of the durable reform which is necessary for her to take on that role; and
(ii) whether those who have assumed the burden of her children’s care over the last four years will co-operate with her attempts to do so.
(c) I am not satisfied that the applicant is likely to play a positive parental role in relation to these children in the future. If she returns to drug use, there is little prospect that she will play any positive role at all. Even if she does not return to drug use, her presence in Australia and pursuit of custody could well be unsuccessful and generate further hostility between her and KT. It is unlikely at this point that the applicant will play a positive parental role in the life of these children. This is not to say that she does not wish to, and could not be capable of doing so, but the damage she has done to the relationships that are critical to the ongoing care of her children appear to be significant and there is no evidence on which I could form a more optimistic view of the matter;
(d) I am satisfied that the applicant’s drug use while pregnant with ArK has had an adverse impact on ArK but there is no evidence before me which would allow me to quantify or describe that impact. Equally, I am satisfied that the applicant’s drug use and the chaos that it brought to her life had a negative impact on TK and AK. When ArK was born, the Department of Child Safety had sufficient concerns regarding the applicant that its officers removed the child from the applicant’s care. The Department of Child Safety’s concerns about the applicant included, failing to access antenatal care, lack of adequate supervision, leaving the children unattended, not meeting the daily needs of the children, and failing to engage with support services. I prefer that assessment over the applicant’s assessment of her own performance as a mother in that period.
(e) The applicant has been separated from her older children with CK since the middle of 2019 and from ArK since February 2020. Since the applicant was remanded in custody the applicant has weekly contact with ArK over videoconference and no contact at all with her older children with CK. It is a significant thing to physically separate a mother from her young children but given the lengthy absences which have already occurred the effect will be much less significant than would normally be the case. I am satisfied that the applicant will be able to maintain contact with ArK by electronic means if she is returned to New Zealand. It is difficult to judge what contact will be facilitated by KT in relation to the older two children if the applicant is returned to New Zealand, but that is equally true if the applicant remains in Australia. At present the applicant is subject to a DVO that runs until 2023, and to date KT has been strict in enforcing the terms of that order;
(f) KT is performing the parental role in relation to these three children and on the evidence of the applicant she was at one stage happy for KT to look after her older children;
(g) There is no evidence concerning the views of the children;
(h) There is no evidence that the children have been or are at any risk of being exposed to family violence perpetrated by the applicant, but the assessment of the Department of Child Safety was clearly that ArK was at risk of neglect based on the applicant’s previous history. According to the Department of Child Safety, the applicant has an extensive history of child protection concerns which have been noted above. If left in the applicant’s care, ArK was assessed to be at an unacceptable risk of suffering emotional and physical harm as a result of neglect, as well as physical and emotional abuse’ [sic].
(i) There is no direct evidence that the applicant’s children suffered any physical or emotional trauma arising from the applicant’s conduct.
128. I am not satisfied that it would be in the best interests of the applicant’s two older children with CK for the applicant to remain in Australia. While it almost always is in a child’s best interests that they have access to close physical contact with their mother, I am not satisfied that this would occur if the applicant remained in Australia. It is quite possible that the only effect of the applicant remaining in Australia is to create conflict with the children’s current carer.
129. In relation to ArK, the Department of Child Safety are already involved, I am satisfied that the calculus is a little different. The applicant currently has regular facilitated contact with ArK, and this is likely to increase if the applicant were released into the community. I am satisfied that it would be in ArK’s best interests for the applicant to remain in Australia.
130. One further issue that was raised in earlier submissions was the possibility that CK may get custody of the children if the applicant does not remain in Australia. In my view this is not a feasible outcome. CK is presently in prison. Given his history of violence I am satisfied that his access to his children will be limited.
(Emphasis in original, footnotes omitted.)
54 The Tribunal then concluded overall, with respect to Primary Consideration 3 (at T[133]–[134]):
133. As should be clear from the discussion above, because of the number of children affected and the variety of circumstances in which they find themselves, no consistent picture of their best interests emerges from the material. In relation to the applicant’s children with JA, the relationship is distant. The applicant only corresponds with one of those children and that is via text. This contact can continue if the applicant is removed to New Zealand. In relation to TK and AK, I am concerned that the applicant remaining in Australia and agitating for changes in care arrangements could be disruptive. In relation to ArK, I am concerned that removing the applicant from Australia will disrupt a relationship which has potential to develop if the applicant remains in Australia.
134. To the extent that such matters can be reconciled I am not satisfied that this consideration weighs in favour of revoking the applicant’s visa cancellation.
55 Regarding Primary Consideration 4 (the expectations of the Australian community), the Tribunal noted the balancing act required between the expectation that those who fail to obey the law not be allowed to remain in Australia (with emphasis on the applicant’s acts of family violence and crime against an official in performance of their duties: see paras 8.4(2)(a) and (d) of Direction 90) and other considerations including a “higher level of tolerance” for those who have “lived in Australia for most of their life or from a very young age”, such as the applicant: at T[137]–[139].
56 The Tribunal then concluded (at T[140]–[142]):
140. In weighing this consideration, I note the following:
(a) The applicant has lived in Australia for a long time and from a young age;
(b) Her offending has for the most part has been associated with drug use and it is possible that in the future she will resume the kind of obedience to the law which Australians expect and which she exhibited prior to her drug use;
(c) Since 2016 the applicant’s offending has been very significant and she exhibited significant resistance to obeying the law;
(d) The applicant has engaged in family violence as defined in the Direction and has in the past assaulted a police officer during the performance of his duty. These are serious matters. However, in relation to the first offence, it is very much at the low end of the scale and in relation to the second, it happened more than 15 years ago, and no similar conduct has been engaged in.
141. The length of the applicant’s stay in Australia, and the age she was when she arrived in particular favours the view that this consideration should not weigh strongly against the applicant.
142. Accordingly, this consideration weighs against the revocation of the visa cancellation but not strongly.
57 Following dealing with the primary considerations in Direction 90, the Tribunal then addressed the “other considerations” in Direction 90 and other submissions of the applicant, which are as follows:
(a) International non-refoulement obligations (at T[146]–[159]);
(b) Extent of impediments if removed from Australia (at T[160]–[164]);
(c) Links to the Australian Community – Strength nature and duration of ties to Australia (at T[165]–[169]); and
(d) The applicant’s other submissions (at T[173]–[174]).
58 The Tribunal then summarises its conclusions as follows (at T[175]–[183]):
CONCLUSION
175. In summary, the Tribunal finds that Primary Consideration 1 weighs against revocation of the visa cancellation. The nature and seriousness of some of the applicant’s offences are of significant concern. There remains a risk that the applicant will re-offend if she resumes drug use and in light of the dangerous driving offence, serious harm could be the consequence. There is no doubt that the Australian community would be best protected by the non-revocation of the visa cancellation.
176. Primary consideration [sic] 2, the family violence consideration favours non-revocation. The applicant has engaged in conduct which meets the definition of family violence. It is however at the low end of offending and is an isolated incident committed during a stressful time for the applicant. This is not to excuse the conduct but to keep it in perspective when considering a decision that could result in deportation. This consideration weighs against revocation but not significantly.
177. In regard to Primary Consideration 3 - the best interests of minor children – I was not satisfied that this consideration ultimately weighed in favour of revocation. While it is a big step to make a decision which dramatically curtails a mother’s ability to have physical contact with her children, the extended periods of limited or no contact and the potential for the applicant to disrupt the care arrangements which are currently in place have left me ambivalent about whether [sic] this consideration.
178. Primary Consideration 4 weighs against revocation of the visa cancellation as the expectations of the Australian community are that the applicant’s offences should cause her to forfeit the privilege of remaining in Australia. However, the fact that she has lived in Australia for a great many years and from a young age reduces significantly any weight this consideration has in favour of revocation. This consideration weighs against revocation but not significantly.
179. The strength, nature and duration of the applicant’s ties to Australia weigh strongly in favour of revocation of the visa cancellation decision. The applicant was a strong contributor to Australia over many years and built-up [sic] ties with her local community and extended family. While her significant drug use and ultimate incarceration appears to have weakened or destroyed most of these ties, they remain significant and should be given significant weight.
180. The impediments she will face if returned to New Zealand do not favour revocation. I am satisfied that she will be able to establish a basic standard of living if returned to live there.
181. I have considered all of the other submissions the applicant has made and do not accept that returning the applicant to New Zealand would be inconsistent with any principles in the Universal Declaration of Human Rights, nor does it engage any non-refoulement obligations. I do not accept that the applicant showed significant remorse for her criminal offending. In my assessment, she was unwilling to face-up to the seriousness of her offending. None of the more general submissions made by the applicant persuaded me there was another reason why the cancellation should be revoked.
182. Having regard to all of these considerations, I am not satisfied that there is another reason why the visa cancellation decision should be revoked. The applicant’s offending is extensive, and in parts serious. There remains a risk that she will re-offend which is tied closely to the risk that she will resume drug use. The expectation of the Australian community is that a person with the applicant’s record of offending will not be allowed to remain in Australia. Only the applicant’s ties to the Australian community provide significant support for a different decision. However, notwithstanding the length of those ties, the applicant’s years of drug use have been very destructive of those ties.
183. In these circumstances, the reviewable decision should be affirmed.
The present application
59 By amended originating application, filed 11 October 2022, the applicant advances the following grounds of review, extracted below (excluding particulars and strikethrough amendments):
1. The Second Respondent (Administrative Appeals Tribunal) failed to… consider whether the Applicant’s former spouse was her “family member” for the purpose of the definition of “family violence” within Direction 90, thereby making a jurisdictional error in the form of a constructive failure to carry out the statutory task of review.
…
2. … The Tribunal made a jurisdictional error in the form of a legally unreasonable finding.
3. The Tribunal made a jurisdictional error in the form of legally unreasonable findings.
60 In the applicant’s written outline of submissions, the three grounds were rephrased as follows:
Ground 1: did the Tribunal fail to consider whether Ms Rukuwai’s former partner was no longer her family member? Ground 2: was it legally unreasonable for the Tribunal to treat her former partner as her family member? Ground 3: was it legally unreasonable for it to find that: removing her from three of her six minor children (aged 2-5) was “much less significant than would normally be the case”, as she did not have their care; and/or that she could maintain contact with her 2-year-old child electronically?
61 The applicant distinguishes ground 2 from ground 1 in this way: Ground 2 contends that a former partner is “never” capable of constituting a family member within the definition of “family violence” in Direction 90. Ground 1 contends that it is possible for a “former partner” to fall within the definition, but the Tribunal will err if it fails to turn its mind to and make findings as to whether the former partner is, in a particular case, a family member.
Ground 1
62 In respect of this ground, the applicant places significant reliance on the case of Deng. The applicant submits that it does not follow that just because it is open to the Tribunal to find that a person was a family member that the Tribunal could simply assume that to be the case, rather the issue has to be considered explicitly (see Deng at [128]).
63 In Deng, the Full Court found that the Tribunal had committed jurisdictional error by acting on a misunderstanding of the law in finding, without express consideration, that because the victim of the appellant’s offending was the appellant’s “intimate partner”, it followed that she was a member of his family for the purpose of the definition of family violence in para 4(1) of Direction 90: at [126].
64 The applicant submits that “Deng is materially indistinguishable from the present case”, as in both cases ss 5CB or 5G (and in this case s 5F) of the Act were not referred to in the Tribunal’s reasons (see Deng at [123]), it was assumed (without consideration) that the victims of family violence were members of the applicants’ families and the family violence was viewed very seriously in the weighing exercise for the decision.
65 The applicant contends that the Tribunal was required to determine whether the applicant’s former husband was a member of her family at the time of the offending so as to constitute family violence and that as they were no longer partners, there was no intention to resume their relationship, and therefore he could not be a member of the applicant’s family for the purpose of the definition of family violence in Direction 90. The Minister conceded that the issue of whether the applicant’s former partner was a member of her family was not expressly addressed by the Tribunal.
66 The applicant further contended that the Tribunal was obliged under s 499(2A) of the Act to comply with Direction 90, paras 5.1(2), 5.1(3), 5.2, 5.2(5), 6, 8.1.1(1)(a)(iii) and 8.1.2(2), which required consideration of certain factors by using the word “must”. Paragraph 8.1.1(1)(a)(iii) provided that the Tribunal “must have regard to… family violence”. It follows that the Tribunal was necessarily obliged to consider the question of who constituted a “family member” even if the parties did not put that question in issue before the Tribunal.
67 On the applicant’s submission, the applicant’s case is stronger than the appellant’s case was in Deng because the appellant did not put in issue before the Tribunal the question of family violence. In this regard, the Full Court stated that the question of who is a family member was a “contestable”, not a “contested” issue: at T[126].
68 The Minister submitted, first, that the Full Court’s decision in Deng was incorrectly decided (albeit conceding that the Court is bound by this authority) and, second, that it was otherwise reasonably open to the Tribunal to take the view it did as to the scope of family violence and who a family member is.
69 For the following reasons, I do not accept the applicant’s submission. First, in order to construe what “family member” means in Direction 90, it is necessary to construe that phrase within the entirety of Direction 90. One needs to construe the scope of “member of the person’s family” by ascertaining the purpose of the paragraph. What appears clear when one construes both examples of the behaviour which fall within the definition of “family violence”, together with where “family violence” is otherwise considered in Direction 90, is that the intention of the paragraph is to include forms of violence within a family that have an impact upon, and/or are witnessed by, children.
70 Examples of “behaviour” that may constitute family violence which are extracted at [30] above, include, at (h), unreasonably withholding financial support, and (i), preventing the family member from making or keeping connections with his or her family. Whilst not determinative, the definition would appear to contain indications, by reason of these behaviours, that it includes conduct arising after the dissolution of a relationship. Whilst of course such behaviour may occur within a marriage, it is my view that when contrasted with the following provisions, the intent of the provision is clear and wards against a narrow construction.
71 This is clear, for example, when one considers para 8.2, namely Primary Consideration 2 (family violence committed by the non-citizen), and in particular, what is required by the decision-maker to consider, when determining “the seriousness of the family violence engaged in by the non-citizen”, which is extracted as follows:
(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 non-citizen’s migration status, should the non-citizen engage in further acts of family violence.
(Emphasis added.)
72 The decision-maker must take into account the “cumulative effect of repeated acts of family violence”: para 8.2(3)(b). Furthermore, consideration must be given to the rehabilitation achieved at the time of the decision since the person’s last known act of family violence, including “the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children)” (emphasis added).
73 At para 8.3, when dealing with Primary Consideration 3 (the best interests of minor children), part of the consideration of the best interests of the minor child, identified at para 8.3(4)(g), includes evidence “that the child has been or is at the risk of being subjected to or exposed to family violence perpetrated by the non-citizen” (emphasis added).
74 Both of these considerations concern the nature of the violence as it occurs between family members, or where a child witnesses or is exposed to that violence. This is consistent with what appears to be the apparent purpose of the provision – To protect children from exposure to violence. Necessarily, unfortunately, much of the acrimony that exists within families occurs within the context of family breakdown. For the definition to be construed in the narrow way for which the applicant contends means that it could not achieve one of the objectives of Direction 90. If this were so, it would produce absurd results. For example, the conduct of a man who had murdered his former spouse would not be covered by this description of “family violence”, and nor would the conduct of a woman who violently abused the former spouse of her children in front of her children. This cannot be how one interprets it.
75 Curiously, Direction 90 adopts the definition of “family violence” from s 4AB of the Family Law Act 1975 (Cth). The effect of s 4(1AB) of the Family Law Act is to define a member of the family to include, inter alia, at s 4(1AB)(d) “the first person is, or has been married to, or in a de facto relationship with, the second person” (emphasis added). It also includes persons who are the subject of parenting orders or custody or guardianship rights. It further includes at s 4(1AB)(i), “the first person is or has been a member of the family of a child with the second person”. I accept the submissions of both parties that despite the partial adoption of the definition of “family violence” in the Family Law Act, the absence of the adoption of s 4(1AB) means it is of limited utility.
76 The applicant relies on Deng at [123], where the Full Court found that ss 5CB and 5G of the Act are of “[s]ome assistance” in construing the phrase “a member of a person’s family”. Given the applicant and her former partner were married, the Minister conceded that s 5F was also relevant in this regard, as the applicant had submitted. Paragraph [123] of Deng was as follows:
Paragraph 4(1) of Direction 90 contains a definition of “family violence” that refers to a “member of the person’s family”. But the Direction does not contain any definition of this expression or of the word “family”. Some assistance is provided by ss 5CB and 5G of the Migration Act, but these sections do not contain an exhaustive definition of a member of a person’s family. The expression “member of the person’s family”, as used in the definition of “family violence” in paragraph 4(1) of Direction 90, is to be construed having regard to its text, context and purpose. The context includes paragraph 8.2 of the Direction and ss 5CB and 5G of the Migration Act.
77 I accept the Minister’s submission that while the Full Court in Deng placed some importance on the definitions provided in these provisions, their Honours did not suggest that those definitions governed the operation of Direction 90. It is clear from considering those provisions that the purpose of those definitions in the Act are different to the purpose of the definition of “family violence” in Direction 90.
78 The applicant submitted that, in addition to ss 5CB, 5F (in this case) and 5G (extracted above at [32]), regs 1.12 and 1.23 of the Migration Regulations 1994 (Cth) also informed the definition of “family violence” in Direction 90. Regulation 1.23 of the Regulations sets out acts constituting family violence and provides that the violence must have occurred while the married or de facto relationship existed between the alleged perpetrator and alleged victim: regs 1.23(3), (5), (7), (12) and (14). The applicant submits these regulations are informative, albeit not determinative. The applicant conceded that the Regulations were not mentioned by the Full Court in Deng as a result of there not being a timing issue in that case since the “intimate partner” was the appellant’s current rather than former partner.
79 I do not accept that reg 1.23 informs the definition of “family member” such that it is confined to current spouses or de facto partners. As the applicant helpfully submitted at hearing, reg 1.23 relates to “partner visas” as described in Sch 2 of the Regulations. At a broad level, an essential criterion for the grant of a partner visa is that the visa applicant and the sponsor are in a continuing relationship: see e.g. cl 820.211(2)(a) of Sch 2 of the Regulations; s 5F(2)(c) (spouse) or s 5CB(2)(b) (de facto partner) of the Act. However, an exception exists where, assuming all other criteria are satisfied, the partner visa can be granted in circumstances where the applicant “has suffered family violence committed by the sponsoring partner”: see e.g. cl 820.221(3)(b)(i) of Sch 2 of the Regulations. The apparent purpose of this exception is to avoid a visa applicant being pressured to remain in a relationship, where they were suffering family violence at the hands of their sponsoring partner, in order to get the benefit of a visa.
80 Further, the applicant relied on reg 1.12(2) of the Regulations which defines a “member of the family unit” and does not include a former partner, but does include “spouse” or “de facto partner” (as defined in ss 5CB and 5F of the Act). However, the applicant conceded at hearing that reg 1.12 relates to whether someone is a “member of the family unit” for the purpose of being included in the primary person’s visa application. The applicant submitted that the Tribunal should have considered these different provisions and discussed why its approach led to inconsistency. I reject this submission. There was no such need for the Tribunal to do so. It is clear that the limitation in the Regulations regarding partner visas that a visa applicant be a “current” spouse or de facto partner conforms with the purpose of that part of the Regulations and cannot be interpreted such that the purpose of Direction 90 is read down.
81 The applicant further submitted that if a current “intimate partner” could not be assumed to be a member of the person’s family (without express consideration) as occurred in Deng, then “it is difficult to see how we would be allowed to assume that a former partner would be a family member”. However, the applicant conceded at hearing that a distinction can be made of the fact that the applicant and JA were formerly married, and intimate partners. The relationship was recognised at law and obligations arose from the legal relationship.
82 Secondly, I do not accept that the Full Court authority in Deng is of assistance to the applicant. It is clear that in the case of Deng, the Full Court endorsed the statement of the primary judge that the expression “member of a person’s family” in Direction 90 should not be narrowly construed: see Deng at [124]. The primary judge in Deng had stated that the term “should not be limited to close relatives and de facto partners of the non-citizen”: Deng at [91].
83 Further, the circumstances in Deng were materially different. There, the issue was whether a former “intimate partner” (who was the appellant’s “current” partner at the time of the purported family violence) comprised a “family member”. The Full Court observed correctly that such a person “may” fall within the definition, but it was a “contestable issue” that needed consideration (at [126]). Here, it was not a “contestable issue” as to whether the applicant had been in a marital relationship with JA. For the reasons identified above, I am of the view that a former spouse necessarily falls within the definition of “family member”.
84 In Deng at [125], it was open to the Tribunal to treat the violence against the appellant’s sister as family violence without further consideration. It is not always necessary for the Tribunal to engage in a detailed consideration of whether the victim of violence was a member of the applicant’s family. The same was conceded by the applicant at hearing.
85 In addition, here the Tribunal expressly stated that it was satisfied that the conduct amounted to an “act of family violence as defined in the Direction” (at T[76]) and referred to the definition at T[77] (whereas the failure by the Tribunal to do so in Deng was significant).
86 Whilst the applicant concedes that the Tribunal extracted part of the definition of “family violence” at T[77] (see above at [49]), the applicant submits that this was insufficient to demonstrate that the Tribunal considered whether the applicant’s former husband was a member of her family. I do not accept this submission.
87 I accept the submission of the Minister that the Tribunal’s lack of detailed analysis as to whether the applicant’s former husband was a member of her family cannot give rise to an inference that the question was not considered in this case.
88 This is particularly so where the issue was not raised before the Tribunal, as is clear from the extracted representations and submissions at [40]–[42] above. I do not accept the applicant’s submission that the applicant had “impliedly submitted” or it was “subsumed in the parties’ submissions on family violence” that JA was not part of her family by not including JA in the list of family members in her request for revocation form or her submissions to the delegate. The applicant seeks to support this contention by reference to a description of persons who are members of her family in the context of her description of her “Links to the Australian Community”. It cannot be accepted that by the applicant not referring to her former spouse in this unrelated context that it was “impliedly submitted” that the applicant intended, for the purpose of a different consideration under Direction 90 that JA did not fall within the definition of “family violence”. Similarly, the applicant cannot rely on a portion of the Request for revocation form and Personal circumstances form dated 17 February 2021 which does not include reference to her former spouse. That form specifically asks for details of “living parents, step-parents, brothers, sisters, and adult children”, “other close family members including in-laws, cousins, grandparents, uncles/aunts”. Further, nothing can be made of the fact that the form, in this part, does not ask for details of an applicant’s relationship status and details of a spouse or partner. Parts 5 and 6 of that form require those details.
89 Further, I do not accept that the Minister himself did “separately” put that in issue. The Minister’s submission, extracted at [43] above, cannot be characterised in this way: The Minister’s submission is responsive and refers to the consequences of the applicant’s behaviour leading to the conclusion that her conduct constituted family violence, rather than any question as to whether JA or KT were “family members”. I do not understand the applicant to have ever conceded that her conduct met the definition of “family violence” for the purposes of Direction 90. Nowhere in the applicant’s representations, submissions or evidence did the applicant frame the issue by reference to whether or not her former husband was a family member.
90 As recognised by the High Court, “the decision-maker is not required to consider claims that are not clearly articulated [in representations] or which do not clearly arise on the materials before them”: Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; 400 ALR 417 at [25].
91 The applicant submits that Plaintiff M1 is not relevant to the present case as it raises different issues. Further, the applicant contends that the plurality’s observation that “the decision-maker must have regard to what is said in the representations” (at [24]) does not suggest that a decision-maker should consider only what is contained in those representations but must look at the materials before it, “even if they are not the subject of clear articulation by a review applicant”: CKT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 124 at [104].
92 The applicant misunderstands the relevance of Plaintiff M1. As submitted by the respondent, the issue in this application as articulated by the applicant is the extent of consideration required (and whether an inference can be drawn that the issue was not considered). The extent of the required consideration will depend on how, if at all, the issue was articulated by the parties.
93 Unlike the inherent ambiguity of the term “intimate partner” which arose in Deng, a former spouse is more plainly a “family member”. I accept the Minister’s submission that the former spousal relationship was of sufficient seriousness, longevity, and involved the rearing of children such that the position of JA is much closer to the position of the sister in Deng at [125] than the intimate partner in Deng such that they would be considered a family member without more express consideration.
94 Furthermore, contrary to the applicant’s submission, the Tribunal did consider “family violence” (at T[79]). It makes a finding that it is satisfied that the applicant’s violence towards the former husband (in the form of threatening text messages) was “family violence”. Further, the Tribunal went on to consider whether other breaches of DVOs by the applicant constituted “family violence” and determined that they were not “family violence” according to that definition (at T[103]–[105]) and gave very little weight to them (at T[106]).
95 The applicant was granted leave, after the hearing, to make further submissions in relation to the Minister’s submission regarding the issue raised by Plaintiff M1: The extent of consideration of an issue required (and whether an inference may be drawn that it was not considered) when the issue was not articulated by the parties.
96 The applicant then after hearing sought to adduce evidence of the Statement of Facts, Issues and Contentions lodged by the applicant in the Tribunal proceeding that was the subject of the decision in Deng. The applicant sought to rely on this evidence for the purpose of expanding on her submission regarding the comparative strength of the applicant’s case to that that of Mr Deng. This falls outside the scope of leave granted by the Court to make further submissions and is rejected.
97 Furthermore, the applicant’s further submissions filed after hearing regarding the “first proposition” (which was a further argument with respect to ground 2 and how Deng was to be interpreted) also are outside the scope of leave granted.
98 Given my finding that ground 1 is not made out I do not need to consider the question of materiality. However, I accept if I am wrong in this regard that the applicant would meet the threshold of materiality.
Ground 2
99 By ground 2, the applicant submits that it was legally unreasonable for the Tribunal to interpret “unduly broadly” the definition of family violence in Direction 90 by treating a former partner as a member of the applicant’s family, when considering the proper construction of Direction 90 and ss 5CB and 5F of the Act. Ground 2 was submitted by the applicant to be a “narrow point” that “it was not open to the Tribunal to treat a former partner as a family member”.
100 Legal unreasonableness may be established where the “legally unreasonable exercise” was “a step along the way”, including an error affecting the process of reasoning: ABT17 v Minister for Immigration and Border Protection [2020] HCA 34; 269 CLR 439 at [123] (per Edelman J); Muggeridge v Minister for Immigration and Border Protection [2017] FCAFC 200; 255 FCR 81 at [35]. Here, the application submitted that the purported error affecting the process of reasoning was the Tribunal’s treatment of a former spouse as a family member which was legally unreasonable for four main reasons:
(1) The marriage between the applicant and JA had already broken down at the time of “the threat” so they were already “former partners”;
(2) Following Deng at [123], reference to the text, context and purpose of para 4(1) of Direction 90, including ss 5CB, 5F and 5G of the Act, demonstrate that a former partner is not contemplated to be a family member as those provisions “require the relationship to be in place at a time for the individuals to be called a spouse or a de facto partner of each other”;
(3) The context for the interpretation of “family member” in Direction 90 also includes the Regulations (referred to above at [78]–[80]), which do not contemplate a former partner being a family member, but rather “expressly say that the relationship still needs to be in place for there to be family violence… for one to be even considered a partner”; and
(4) It is “counterintuitive, and it would also defy common sense” to treat a former partner as a family member, considering that while disputes may arise between former partners, it “is another thing to say that, because of that, they are still members of the same family”.
101 For the same reasons, as articulated above with respect to ground 1, I do not accept the premise underlying the purported unreasonableness: Direction 90 does include in the definition of “family violence”, a “member of the person’s family” who is a former spouse.
102 I accept, if I were wrong in my conclusions with respect to this ground, that the purported error would be material for the same reasons expressed with respect to ground 1.
Ground 3
103 By ground 3, the applicant contends that the Tribunal erred in its jurisdiction by making the following legally unreasonable findings (as contained in the applicant’s amended originating application):
a) The Tribunal found that the removal of the Applicant from some of her minor children, namely ‘TK’, ‘AK’ and ‘ArK’, who were only 2 to 5 years old, was “much less significant than would normally be the case”, on the basis that she did not have their care: [127(e)].
b) The Tribunal found that, if the Applicant were removed from ArK, the Applicant could maintain contact with ArK, who was only 2 years old, by electronic means: [127(e)].
104 These findings were submitted to be “legally unreasonable” because they do “not confront the severe human consequences for very young infants” which would result (by their mother being deported from Australia) from affirming the delegate’s decision.
105 The applicant referred to the reasoning of the Tribunal at T[120]–[130], in which the Tribunal considered the best interests of the applicant’s three children with CK who would be affected by the decision (extracted above at [53]) and in particular T[127(e)], which she emphasised in her submissions as follows:
At CB 54 [127(e)], the Tribunal stated (emphasis added): “[Ms Rukuwai] has been separated from her older children with CK since the middle of 2019 and from ArK since February 2020. Since [Ms Rukuwai] was remanded in custody [Ms Rukuwai] has weekly contact with ArK over videoconference and no contact at all with her older children with CK. It is a significant thing to physically separate a mother from her young children but given the lengthy absences which have already occurred the effect will be much less significant than would normally be the case. I am satisfied that [Ms Rukuwai] will be able to maintain contact with ArK by electronic means if she is returned to New Zealand.”
(Emphasis in original.)
106 The applicant submits that the above emphasised passage from T[127(e)] “borders on the perverse” considering those three children with CK were only aged 2 to 5 years old at the time of the Tribunal’s decision, and the Tribunal failed to engage in an “honest confrontation of what is being done to people” (referring to Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; 267 FCR 628 at [3] (per Allsop CJ, Markovic and Steward JJ agreeing)).
107 The gravamen of ground 3, according to the applicant, was that it “was extreme, bordering on the perverse”, that “no reasonable decision maker could have come to that conclusion” (using the language of Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 citing Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223) that a reason (albeit not the determinative reason) for non-revocation could be that the children are already physically separated from the applicant so can continue to communicate electronically anyway.
108 I would note that the Tribunal considers the ability of the applicant to communicate with ArK (her youngest child) by electronic means only and does not, as the applicant suggests in this submission, deal with the prospect of and effect of electronic communication with her two other minor children to CK if deported.
109 This ground seeks to impugn two evaluative assessments made by the Tribunal when considering the merits of the applicant’s case.
110 The Tribunal commences its reasons by referring to the specific part of Direction 90, para 8.3(1) that requires decision-makers to make a determination whether revocation is in the best interests of any minor children affected by the decision (at T[107]) and extracts the factors to be considered: at T[108]. The Tribunal then deals, first, with the children from the applicant’s former marriage with JA before dealing with the children from the applicant’s relationship with CK, about which this ground relates.
111 The Tribunal notes a number of factual matters regarding these children before considering the mandatory factors identified in para 8.3(4) of Direction 90. They include (a) the two older children were left by the applicant with the applicant’s eldest daughter, KT, in mid-2019 because of violence and uncertainty in her life at the time and the applicant has not spoken to them since 2019 (at T[120]–[121]); (b) KT is also raising ArK who was removed from the applicant’s care a few days after she was born and placed by the Department of Child Safety in KT’s care; (c) ArK was around 5 months old when the applicant was taken into custody (T[122]); (d) the relationship between the applicant and KT “appears to be strained”, KT sought and obtained Family Court orders on 12 February 2020 which gave her formal custody of the two older children and the applicant has no custody rights at this point in relation to those children (at T[124]); (e) the applicant intends to obtain orders to facilitate access to these children with the goal for them to be returned to her care (at T[125]); and (f) by reason of the last two matters, the Tribunal said, if the applicant were released into the Australian community, “there is likely to be a dispute about the custody and care of these children”: at T[126].
112 In the context of making its evaluative assessment at T[127(e)] the Tribunal did consider the consequences of physical separations, its “significance” and why in this case “it will be much less significant than would normally be the case” because the applicant has not been responsible for the children’s care for some time. However, the Tribunal reasoned that the applicant will be able to maintain her contact with the youngest child by electronic means if the applicant returns to New Zealand.
113 The applicant’s challenge must be viewed in the context of the whole of the Tribunal’s reasoning.
114 Where a child is to be practically deprived of the opportunity for direct personal contact with a parent as a result of an administrative decision, it behoves the decision-maker to explain clearly the considerations he or she has given to the consequences for the child: Webb v Minister for Home Affairs [2020] FCA 831; 170 ALD 511 at [39]. In Webb, the Court found, inter alia, that the Minister had failed to adequately explain in his reasons his understanding of the adverse consequences for the children if their mother’s visa was revoked rather than that the decision was unlawful on the ground of legal unreasonableness: Webb at [49]–[50].
115 The circumstances of this case are different to those in Webb. In the present case, the Tribunal sets out clearly its reasons concerning the consequences for the children if their mother’s visa is revoked, taking into account the mandatory considerations under Direction 90: at T[120]–[130].
116 As identified by the Tribunal, none of the applicant’s children were in her care before she went into immigration detention: at T[127(a)]. The applicant’s youngest child was removed from her at birth because she was viewed as a risk (including concerns that the applicant failed to access antenatal care and adequately supervise her children, left her children unattended, did not meet the daily needs of the children, and failed to engage with support services (at T[127(d)]) or the child was viewed to be at risk of neglect and physical and emotional abuse (at T[127(h)])). ArK was placed in the care of KT by the Department of Child Safety: at T[122]. KT sought and obtained Family Court orders in the same month as ArK was placed in her care that she have custody of ArK’s two older siblings: at T[124].
117 The youngest child has predominantly only ever had contact with her mother via weekly video conferencing, supervised by a Child Safety Officer, save for the first five months of her life where weekly face to face contact occurred prior to the applicant’s incarceration.
118 The applicant is currently the subject of a DVO that was taken out by KT, which prohibits the applicant from, among other things, attempting to contact KT by any means whatsoever: at T[60]. The Tribunal did not have sufficient details of the basis for the making of the DVO so as to be able to determine the concern which prompted KT to make the original application: at T[104]. However, it noted that the breaches in 2021, involving the writing of letters to the children at KT’s address, prompted a police complaint due to KT’s fear that CK, who has a propensity for violence, might become aware of KT’s address: at T[61]. The DVO runs until 2023 and to date KT has been strict in enforcing its terms: T[127(e)].
119 It is in this context, where the relationship (at least with the youngest child) has predominantly only ever been via electronic means, that the Tribunal made a finding that the relationship could continue via electronic means. The reasoning also exposes the unusualness of the circumstances namely, even if the applicant were released from detention there may be significant impediments in her having any contact with ArK other than via electronic means.
120 Furthermore, the Tribunal’s reasoning includes that the Tribunal was “not satisfied that the applicant is likely to play a positive parental role in relation to these children in the future” (at T[127(c)]) and that the applicant’s drug use and the chaos that it brought to her life had a negative impact on the two older children: at T[127(d)]. Ultimately the Tribunal was not satisfied that it would be in the best interests of the two older children with CK for the applicant to remain in Australia for the following reasons, at T[128]:
While it almost always is in a child’s best interests that they have access to close physical contact with their mother, I am not satisfied that this would occur if the applicant remained in Australia. It is quite possible that the only effect of the applicant remaining in Australia is to create conflict with the children’s current carer [KT, the applicant’s eldest daughter]
121 Accordingly, the Tribunal did expressly acknowledge that ordinarily close contact between a mother and a child would be in the child’s best interests, and noted with respect to ArK, it would be in her best interests if the applicant remained in Australia, at T[129]:
In relation to ArK, the Department of Child Safety are already involved, I am satisfied that the calculus is a little different. The applicant currently has regular facilitated contact with ArK, and this is likely to increase if the applicant were released into the community. I am satisfied that it would be in ArK’s best interests for the applicant to remain in Australia.
122 These findings were made on the merits, after full consideration of the evidence. The applicant did not point to any evidence or submission that was not taken into account. By reason of the same, I do not accept that the challenged findings were unreasonable in the legal sense explained in Li.
123 As submitted by the Minister, to assess the impact upon the children by reference to, in part, whether the applicant was the primary carer of the children is both rational and obvious: Direction 90, at para 8.3(4)(a), commands that account is taken of the “nature and the duration of the relationship” including “long periods of absence or limited meaningful contact (including whether an existing Court order restricts contact)”.
124 To conclude that the applicant’s youngest child could maintain contact with her mother by electronic means is not perverse: Direction 90, at para 8.3(4)(d), requires that consideration be given to the likely effect of any separation including the “non-citizen’s ability to maintain contact in other ways”. Relevantly here, the absence of perversity arises not only from this requirement but also from the very unfortunate reality that, predominately, the only contact the applicant had had with the child at the time of the Tribunal’s decision was via electronic means and also there were additional impediments by reason of the strained relationship between the applicant and KT (the child’s primary carer) together with extant DVOs which would constrict future contact if she were to be released in any event.
125 The Tribunal expressly refers to and considers the human consequences of the decision on the children: at T[127]–[129].
126 Even if I were wrong regarding this conclusion, it is my view that the purported error was not material. Whilst the Tribunal determined that it would be in ArK’s best interests for the applicant to remain in Australia (at T[129], [133]), ultimately the Tribunal concluded, by reason of its findings that the applicant remaining was not in the best interests of the two other children with CK, as follows:
133. As should be clear from the discussion above, because of the number of children affected and the variety of circumstances in which they find themselves, no consistent picture of their best interests emerges from the material. In relation to the applicant’s children with JA, the relationship is distant. The applicant only corresponds with one of those children and that is via text. This contact can continue if the applicant is removed to New Zealand. In relation to TK and AK, I am concerned that the applicant remaining in Australia and agitating for changes in care arrangements could be disruptive. In relation to ArK, I am concerned that removing the applicant from Australia will disrupt a relationship which has potential to develop if the applicant remains in Australia.
134. To the extent that such matters can be reconciled I am not satisfied that this consideration weighs in favour of revoking the applicant’s visa cancellation.
127 This view was reaffirmed at T[177], as extracted at [58] above.
128 The Tribunal also concluded that primary considerations 1 and 4 weighed against revocation.
129 For these reasons, I do not accept that the purported error was material.
Conclusion
130 For these reasons the application should be dismissed with costs.
I certify that the preceding one hundred and thirty (130) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Raper. |
Associate:
