Federal Court of Australia

BLBY v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 128

ORDERS

THE COURT ORDERS THAT:

1.    There be leave to amend the originating application in terms of the further amended originating application being annexure SR-3 to the affidavit of Selvadurai Raveendran affirmed 25 January 2023.

2.    The application for review is dismissed.

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

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

REASONS FOR JUDGMENT

COLVIN J:

1    The applicant is of Sri Lankan nationality and Tamil ethnicity. He was previously the holder of a protection visa. By reason of the imposition of a sentence of imprisonment of more than 12 months for an offence of sexually penetrating a child over 13 and under 16 his visa was cancelled in 2017. He made representations in support of a request for the revocation of the visa cancellation pursuant to s 501CA of the Migration Act 1958 (Cth). For reasons that are not presently relevant, there followed an extended process of representations and communications with the Minister's department. On 21 April 2022 a delegate of the Minister decided not to revoke the cancellation. The applicant sought review in the Administrative Appeals Tribunal. The Tribunal determined that the delegate's decision should be affirmed.

2    The applicant now seeks judicial review of the Tribunal's decision for alleged jurisdictional error. The Tribunal made findings adverse to the applicant to the effect that he did not acknowledge the gravity of his offending and that he was not truly remorseful. Much of the review application concerns those findings and the procedures by which they were made, but there are other aspects of the reasons relied upon to support the grounds of review.

Alleged jurisdiction errors

3    By a proposed amended application, the applicant alleges the following jurisdictional errors in his grounds of review:

(1)    The Tribunal failed to provide procedural fairness to the applicant despite concerns about the interpretation that was provided during the hearing and relied upon the interpreted evidence to reach conclusions concerning the applicant's remorse which materially affected the outcome (ground 1, particulars (a) to (c)).

(2)    In continuing the proceedings despite concerns about interpretation, the Tribunal acted without a real and genuine consideration of the material and constructively failed to exercise its power by relying on evidence that was influenced by imprecise interpretation (ground 1, particulars (d) and (e)).

(3)    The Tribunal failed to provide procedural fairness in finding that the applicant's 'lack of remorse for his victim, his failure to truly appreciate the very serious nature of his offending and his being yet to engage with support providers such as the Department of Child Protection' carried with it an element of real concern for the safety of his own children without putting that matter to the applicant for consideration or response, (ground 1, particular (f)).

(4)    The Tribunal failed to consider the limitations of a hearing conducted through an interpreter and the possible effects of cultural differences and feelings of shame on the words used by the applicant in making findings concerning his acknowledgment of the seriousness of his offending and lack of remorse (ground 2, particular (a)).

(5)    The Tribunal failed to consider the maximum possible penalty of 20 years imprisonment for the offence when considering the penalty of 18 months imprisonment imposed by the court (ground 2, particular (b)).

(6)    The Tribunal failed to consider the grant of parole without a supervision order, and the evidence of recidivism of sexual offenders, in assessing the risk of further offending (ground 2, particular (c)).

(7)    The Tribunal failed to consider the effect of the strong ties of marriage of the applicant and his wife in considering impediments if the applicant were returned to Sri Lanka or kept in indefinite detention (ground 2, particular (d)).

(8)    The Tribunal failed to consider the effect of the strong ties of marriage of the applicant and his wife in considering the strength, nature and ties of the applicant to Australia (ground 2, particular (e)).

(9)    The Tribunal failed to consider the effect of the strong ties of marriage of the applicant and his wife in considering the weighing of factors to determine if there were another reason why the cancellation of the visa should be revoked (ground 2, particular (f)).

(10)    The Tribunal's decision was legally unreasonable because:

(a)    the finding that the applicant failed to recognise his conduct as very serious was made in circumstances where the applicant had provided a statement in which he said that he was 'very remorseful … I totally reject my previous actions which were so wrong' and 'I am very remorseful about the circumstances that coursed (sic) me to be in detention centre';

(b)    the applicant's other statements about acknowledgment of the seriousness of his offending were made in the context of his statement and were to be viewed 'through the prisms of cultural difference, interpretation, shame, and fear of harm in the detention centre';

(c)    it was unreasonable to find that the best interests of the applicant's children weighed only 'moderately' in favour of revocation;

(d)    it was unreasonable for the Tribunal to find that the strength, nature and duration of the applicant's ties to Australia weighed only 'moderately' in favour of revocation given the applicant's strong ties to his Australian citizen wife and children;

(e)    it was unreasonable for the Tribunal to find that the prospect of indefinite detention weighed in favour of revocation without attributing a comparative weight (as the Tribunal had done with other matters that it considered); and

(f)    the Tribunal had conducted the proceedings in the manner complained of in the other grounds

(ground 3).

4    To the extent that an amendment is sought to raise some of the grounds set out above, the Minister opposes the application to amend the grounds of review on the basis that the proposed amendments seek to raise grounds that lack merit.

Outcome

5    For the following reasons, the application to amend should be allowed but the application for review should be dismissed because the applicant has failed to demonstrate jurisdictional error.

The significance of the statutory context

6    The submissions for the applicant were developed without particular regard to the nature of the statutory power that the Tribunal was invited to exercise (standing in the shoes of the delegate of the Minister). Evaluating whether there has been jurisdictional error requires a clear understanding of the nature and extent of the power being exercised. As the High Court explained in MZAPC v Minister for Immigration and Border Protection [2021] HCA 17 at [29] (Kiefel CJ, Gageler, Keane and Gleeson JJ), to say that a decision is affected by jurisdictional error is to say 'no more and no less than that the decision-maker exceeded the limits of the decision-making authority conferred by the statute in making the decision'. Accordingly, it is necessary to begin with a consideration of the nature and extent of that authority.

7    The applicant's visa was cancelled pursuant to s 501(3A) of the Migration Act. In consequence, the applicant was required to be notified of the cancellation, to be given notice of information that the Minister considers would be reason for making the decision to cancel and to be invited to make representations about revocation of the 'original decision' (namely, the visa cancellation): s 501CA.

8    By the terms of s 501CA(4), if the applicant made representations (as he did) and the Minister was satisfied that he passed the character test (as defined in s 501(6)) or 'that there is another reason why the original decision should be revoked' then the Minister may revoke the original decision. Therefore, the statute contemplates the formation of a state of satisfaction by the Minister as to two matters, namely passing the character test and 'another reason' to revoke the cancellation.

9    Having regard to the structure of these provisions, if representations are made, the Minister (or a delegate of the Minister) must deliberate as to whether the person passes the character test and whether there is 'another reason' to revoke. The requirements to the effect that the person whose visa has been cancelled under s 501(3) be notified of the information that the Minister considers would be a reason for making a decision to cancel and inviting representations strongly support such a construction. As does the fact that cancellation under s 501(3), though described as a 'decision' is required to occur once the sentence has been imposed and the procedure in s 501CA is the only statutory mechanism by which there may be regard to whether there are reasons why the visa should not be cancelled in the particular circumstances of the person concerned (and with regard to the other aspects of the character test as defined in s 501(6)). Indeed, it may be that the ongoing validity of a cancellation effected under s 501(3) is conditional upon timely compliance with the requirements of s 501CA: see my reasoning in McQueen v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 3) [2022] FCA 258 at [112]-[118] (not addressed on appeal in Minister for Immigration, Citizenship and Multicultural Affairs v McQueen [2022] FCAFC 199).

10    Until recently, authorities in this Court had concluded that it was also necessary for the Minister to consider the representations in forming the required state of satisfaction for the purposes of s 501CA(4). However, the reasoning of Kiefel CJ, Keane, Gordon and Steward JJ in Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 at [22]-[27] exposed an important distinction between considering the representations for the purpose of comprehending their content and evaluating whether they have significance (on the one hand) and considering the representations as part of the deliberative process to be undertaken by the Minister in forming the required state of satisfaction (on the other hand). The Minister must consider the representations in the sense of comprehending their content and evaluating their possible significance. However, the breadth of the discretion entrusted to the Minister includes the authority to determine which, if any, of the representations should be brought to bear forming the required state of satisfaction. Consequently, provided the Minister acts reasonably and logically in identifying those matters which are of significance and the weight to be given those matters, it is entirely a matter for the Minister as to which, if any, of the representations is brought to bear in deliberating for the purpose of forming the required state of satisfaction.

11    As has been noted, there are two aspects upon which the Minister must deliberate. The first is as to whether the person passes the character test. In that regard, there is a statutory definition some aspects of which require the Minister to form a state of satisfaction as to particular specified matters. However, we are not here concerned with what is required in deliberating as to that part of the provision because it is common ground that the applicant did not pass the character test. Rather, we are here concerned with the second aspect, namely whether the Minister is satisfied that there is 'another reason' to revoke. In that regard, it is significant that there is no indication in the statute as to what may be 'another reason'.

12    The use of the broad terminology 'another reason' gives rise to the description of the power conferred by s 501CA(4) as 'a broad discretionary power'. The content of the representations made by a person seeking the exercise of the power in their favour cannot rise to becoming, in effect, relevant considerations to which there must be regard in exercising the power. Rather, it is a matter for the Minister to form a view as to which, if any, of the matters raised in the representations amounts to a consideration that should be weighed or brought to account in deliberating as to whether the Minister is satisfied that there is 'another reason' to revoke the cancellation. Nevertheless, the Minister must 'read, identify, understand and evaluate the representations'. In short, the Minister must consider the representations in order to comprehend what is represented and evaluate their possible significance. In doing so, the level of engagement required depends, amongst other things, upon the length, clarity and degree of relevance of particular representations. Substantial and clearly articulated arguments made in the representations cannot be ignored, overlooked or misunderstood. The same applies to relevant facts or materials. However, a failure to refer to such matters in the reasons of the Minister is not, of itself, an error because it is the Minister who determines the matters to be brought to bear in exercising the discretion.

13    Further, the fact that the Tribunal has not mentioned particular information does not necessarily mean that it has ignored, overlooked or misunderstood and thereby not considered that information: KXXH v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 111 at [54] (Bromberg, Jackson and Feutrill JJ). The case must be made as to why it is said that the fact that reasons do not contain an express reference to a substantial or clearly articulated argument or to refer particular relevant facts or materials demonstrates that the argument or the facts or materials have been ignored, overlooked or misunderstood. Mere disagreement with the process of reasoning or the implied rejection of the significance of an argument or evidence by not expressly referring to it in the reasons does not demonstrate jurisdictional error.

14    As has been mentioned, in deliberating as to the matters in the representations, the Minister must act 'within the bounds of rationality and reasonableness'. However, the Minister is not required as part of the deliberative process of evaluating whether there is 'another reason' to advert to every significant matter in the representations (whether significance be adjudged by the Court's own view as to its persuasiveness or the prominence given to the particular matter in those representations). To adopt that approach is to confine the breadth of the discretionary power which includes the identification of that which the Minister determines ought to be considered in deliberating whether there is another reason. In short, within the bounds of reasonableness and rationality, it is up to the Minister to identify the matters that may be considered to be persuasive one way or the other.

15    Therefore, the failure by the Minister to have regard to any particular matter raised in the representations as part of a process of reasoning as to why the power should not be exercised, does not demonstrate jurisdictional error unless it can be said to show either:

(1)    the Minister did not advert to or properly understand the representations or their possible significance; or

(2)    the Minister reasoned in a manner that exceeded the bounds of rationality and reasonableness by not considering a particular matter in the representations.

In addition, as to (2), the following observation by Brennan J in Norbis v Norbis (1986) 161 CLR 513 at 541 must be borne in mind: 'It is harder to be satisfied that an administrative body has acted unreasonably [than a judicial body exercising a judicial discretion], particularly when the administrative discretion is wide in its scope or is affected by policies of which the court has no experience'.

16    For completeness, as to the significance of the use of the word 'may' in s 501CA(4), in a number of decisions in this Court it has been held that if the required state of satisfaction is formed the provision confers a power which must be exercised to revoke the cancellation (noting that there are cases where the view has been expressed that the formation of the state of satisfaction simply conditions the discretionary power to revoke the cancellation): the authorities are collected by Katzmann J in Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 125; (2021) 285 FCR 187 at [3]. The submissions for the parties proceeded on the basis that jurisdictional error in the deliberation by the Tribunal in forming the required state of satisfaction or error in the procedure conducted by the Tribunal for that purpose, was what the applicant had to demonstrate. No-one suggested that the formation of the required state of satisfaction was a jurisdictional fact that enlivened a discretion to revoke the visa cancellation. Indeed, it would be most odd if satisfaction that the person passed the character test nevertheless gave rise to the possibility of a discretionary decision not to revoke the visa cancellation.

17    It follows that considerable care must be exercised in referring to that which the Minister must 'consider' when it comes to undertaking the deliberation required by s 501CA(4) when representations are made seeking the revocation of the cancellation of a visa that has occurred under s 501(3A). In a general sense of the term, there is a requirement to consider what is raised by the representations. However, it is not the case that each matter raised in the representations must be brought into account in making the decision or referred to in the course of the reasoning as to whether to revoke the visa cancellation. It is a matter for the Minister as to whether a representation is thought to be of significance when it comes to making the decision. All of the representations must be considered in the sense that they must be read, understood and evaluated. A failure to refer in the reasons to a representation that may be properly characterised as significant may be a basis upon which to claim that this requirement has not been met. However, as it is a matter for the Minister to decide whether a particular representation is significant for the decision, a failure to refer to a particular representation may indicate a view that the Minister does not consider the representation to be significant. In such a case, it would need to be demonstrated that the decision was legally unreasonable by reason of the failure to bring the representation to account in the making of the decision. The breadth of the discretion means that would be a high hurdle to meet.

18    The preceding analysis deals with the case where the decision is made by the Minister. When it comes to a decision made by the Tribunal on review as to whether the Tribunal is satisfied that there is 'another reason' to revoke, two further matters must be considered. The first is that the Tribunal conducts its own procedures which may allow the introduction of further material as 'representations', including by way of evidence and submissions received at a hearing conducted by the Tribunal. To some extent those procedures are modified by s 500 in the case of an application to review a decision made not to exercise the power conferred by s 501CA(4) to revoke a visa cancellation. However, the Tribunal's procedures extend beyond adverting to the representations and the hearing that it is required to conduct must be procedurally fair and its reasoning must conform to the standards to be expected of an independent Tribunal of the kind established under the Administrative Appeals Tribunal Act 1975 (Cth). The Tribunal also has particular requirements to meet in respect of its reasons. These aspects of the nature of the authority conferred upon the Tribunal may give rise to circumstances in which a failure to refer to a particular representation in the Tribunal's reasons means that the Tribunal has failed to conform to requirements as to the manner in which it must make its decision on a merits review. These aspects need not be further explored because the case for the applicant did not rely upon them.

19    The second matter is that s 499 provides that the Minister 'may give written directions to a person or body having functions or powers under this Act' if the directions are about the performance of those functions or the exercise of those powers. The person or body must then comply with the direction: s 499(2A). The Minister has made a written direction under s 499 concerning the exercise of the power conferred by s 501CA, namely 'Direction No. 90 - Visa refusal and cancellation under section 501 and revocation of mandatory cancellation of a visa under Section 501CA' (Direction). Therefore, in making its decision, the Tribunal was required to comply with the Direction. A failure to comply with a direction made under s 499 may constitute jurisdictional error: FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 19 at [6]; and Bochenski v Minister for Immigration and Border Protection [2017] FCAFC 68; (2017) 250 FCR 209 at [65] (Bromwich J, Bromberg and Charlesworth JJ agreeing). As I explained in CWRG v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1382 at [29]-[30]

Section 499 does not authorise the making of a direction that would require a decision-maker to act contrary to the requirements of the Migration Act: s 499(2). Therefore, the terms of the Direction should be approached on the basis that they are intended to conform to the limits of the power conferred by s 499. As s 501(1) [and equally the evaluation for the purposes of s 501CA(4) as to whether there is 'another reason' to revoke the visa cancellation] is not hedged by any mandatory considerations, any direction that purported to confine the exercise of that power in a manner that required the discretion to be informed by particular matters and not others irrespective of the circumstances would be inconsistent with the nature of the discretionary power.

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

20    There is a significant distinction between the requirement to have regard to particular considerations (as specified in the Direction) which, in most instances, is concerned with requiring deliberation as to a particular factor and a requirement to have regard in making the decision to the content of the representations concerning that factor. The Direction imposes the former but not the latter requirement. Therefore, where the Tribunal has addressed the consideration to which it is required by the Direction to have regard and has addressed the weight to be given to that consideration, a failure to comply with the Direction cannot be demonstrated on the basis that it might be said that there is a failure to refer expressly to a particular aspect of the representations that may be relevant to that consideration, less still particular evidence that might be said to be relevant to that factor. In short, there must be particular attention to precisely what is required by the Direction and the need for the Direction to be consistent with the nature of the discretionary power conferred by s 501CA(4).

21    It follows that in those cases where the Tribunal has directed attention to the factor to which it is to have regard then in all likelihood it will have complied with the Direction (noting that any aspect of the reasoning may be relied upon to support a separate basis for alleged jurisdictional error such as unreasonableness or illogicality or deliberation that lacks the characteristics and qualities expected of the Tribunal as the repository of the authority to undertake a merits review).

22    The above matters must be kept in mind in considering whether any of the review grounds advanced by the applicant demonstrate jurisdictional error.

The interpretation of the evidence of the applicant before the Tribunal

23    Before this Court, an affidavit of Mr Asokarajan, a certified interpreter, was received. His qualifications were not in issue. He deposed to having 'good knowledge of the Tamil language as spoken in Sri Lanka, their mannerisms [and] expressions'.

24    Mr Asokarajan was provided with the audio recording of the Tribunal hearing and the transcript of the hearing. He described the difficulties with the video and audio during the hearing which he said made it difficult for the interpreter and the applicant 'to remain in the loop throughout the proceedings'. These comments appear to refer to the part of the proceedings in which the lawyers representing the applicant and the Minister were making submissions to the Tribunal. They do not concern the part of the hearing where the applicant was giving evidence.

25    Having described these difficulties, Mr Asokarajan then deposed:

In my professional capacity as a Certified Interpreter (NAATI) and after having listened to the audio recording of the hearing and also having perused the transcript provided to me, it is my considered opinion that there was an expression of remorse and admission of his guilt throughout the evidence of the Applicant.

26    The expression of the above opinion is followed by an explanation which appears to be the statement of the basis for the opinion. The explanation begins by explaining the importance of transferring the message between parties involved in a hearing rather than a literal translation 'leading to a dilution of the gravity of expressions made by the applicant'. Mr Asokarajan then deposed:

A word in any language has different connotations depending on the tone, content and intent, while making those utterances. Tamil, in particular, has a very versatile interpretation of any given word, as appropriate to the content of the utterance. There is a lack of consistency in the usage of the words by the interpreter around the issue and/or wrongdoing committed and accepted by the Applicant at various stages but continued to refer to it as a mistake, ignoring the tone and context in which the wrongdoing was expressed. For example, I wish to refer to the following pages of the transcript, which contains the interpretation of the expressions by the applicant …

27    The affidavit then listed various points in the part of the transcript recording the evidence of the applicant. It included a number of points in which the applicant was recorded as describing his offending as a 'mistake', including statements that 'I accept that and am still suffering from that mistake I have committed', 'crime was a silly error. A moment of weakness', it 'happened by an error oversight', 'it happened by accident, by error' and 'mistake or error. I consider both alike, similar'. The list included a point at which the transcript recorded the applicant as being asked whether: 'by using words like mistake and words like silly error, are you suggesting this happened without your intention'. The applicant's recorded response included the statement 'It is a big error'.

28    Mr Asokarajan then deposed as follows:

I believe that by using the word 'mistake' on several occasions to the answers and expressions given by the applicant, the interpreter has failed to convey the context and intent in which they were said by the applicant by his words. The words used by the applicant in Tamil cannot be restricted only to a translation to convey 'mistake' or 'silly error', although the vocabulary in English is limited to interpret and convey the expression succinctly.

Utterance of an expression 'silly mistake/error' does not automatically connote a small mistake/error as construed and conveyed through the interpretation. That could actually also mean that he has been so silly/stupid to have committed that offence/mistake. By hearing the Tamil language conversation by the Applicant in the recording, I formed the opinion that he was expressing that through an aberration and at a weak moment, he committed an offence, which he now understood to be one which is serious and reprehensible, and is remorseful for what he has done and is suffering, largely experiencing mental trauma.

29    Counsel for the Minister objected to the evidence set out in the second of the two paragraphs set out at [28] above. It was objected to on the basis that it sought to give evidence as to a legal conclusion that was a matter for the Court as to whether the evidence given by the applicant conveyed an understanding that his offending was serious and that he was remorseful for the consequences of his offending.

30    There is, of course, a relevant legal distinction between interpreting into the English language an accurate expression of the meaning of what was said in the Tamil language (which plainly involves more than some form of literal translation), on the one hand, and reaching an adjudicative conclusion based upon that interpretation as to whether what was said amounted to evidence that the applicant understood the seriousness of his offending and he was remorseful for the consequences of his offending, on the other hand.

31    The difficulty with the manner in which the evidence is given is that it appears to roll these two aspects into a single conclusion. In particular, the second paragraph quoted at [28] above begins by referring to the utterance of the expression 'silly mistake/error' in a way that indicates it has an ambiguity such that it might connote either (a) a small mistake/error; or (b) the applicant himself was silly/stupid to have committed that offence/mistake. However, this distinction does not suggest semantic breadth as to the gravity of the error or the insight as to its consequences that might have supported a translation of the words that exposed remorse and insight into the seriousness of the offending.

32    Further, Mr Asokarajan's evidence is confined to the interpretation of what was said by the applicant by using the word 'mistake'. He explains that the words used by the applicant in Tamil 'cannot be restricted only to convey' mistake or silly error. In doing so, he implicitly accepts that is one meaning that the words used might convey. Mr Asokarajan then says that the vocabulary in English is limited to convey the expression that was used in Tamil 'succinctly'. He then offers an explanation that the expression in Tamil may mean that the applicant was saying that he was silly to have committed the 'offence/mistake'. It is perhaps unclear whether, Mr Asokarajan is also saying that the expression may connote more serious mistake/error. He certainly does not say so expressly. Given that is the key issue, it would be expected that he would say so in explicit terms if that was the case. The fact that a statement to that effect is not made by him suggests that the point he is making is that the expression might describe the applicant as being silly/stupid rather than to describe the offence as a mistake.

33    The only alternative meaning that Mr Asokarajan attributes as a possibility is that the Tamil expression used 'could actually also mean that [the applicant] has been so silly/stupid to have committed that offence/mistake'. This alternative does not support the submission advanced in the present proceedings which is to the effect that the interpretation failed to convey evidence of the applicant to the effect that he was remorseful and understood the gravity of his offending. Further, it is an alternative that is captured in the transcript record of the evidence of the applicant in the Tribunal.

34    The significance of the failure by Mr Asokarajan to address the interpretation of any of the particular passages of the evidence of the applicant can be illustrated in the following way. When the applicant was questioned by counsel for the Minister by reference to a record of a meeting with the applicant about matters including his offending (where there had been an interpreter 'over the phone in the room'), the following exchange is recorded in the transcript. It commences with passages from a record of the meeting being put to the applicant:

COUNSEL So the passage says:

The applicant reiterated that this crime was a silly error on his behalf. A moment of weakness.

INTERPRETER: Can you say that again please?

COUNSEL:

The applicant reiterated that this crime was a silly error on his behalf. A moment of weakness.

INTERPRETER: Still I am thinking was to why I committed this mistake. I accept that this mistake has taken place without my knowledge.

COUNSEL: Sorry, BLBY, is your evidence that this offending occurred without your knowledge?

INTERPRETER: No, no, I did not say that I did it, I committed this offence without my knowledge. But this has happened by an error, by an oversight.

COUNSEL: I understand. So you're telling the tribunal that the sexual offending against this child happened by oversight?

INTERPRETER: Still I am suffering about the incident. That happened as an accident. I did not do it purposely.

COUNSEL: All right. Is that why it's described here as a 'silly error', and why you described it here today as a mistake?

INTERPRETER: What I mean - when you say mistake or error, I consider them both alike, similar. I don't know how to divide one word from the other.

COUNSEL: Well I'm trying to understand how you characterised the conduct, and I had understood your evidence to be that it was an oversight or an accident. Is that how you understand your conduct?

INTERPRETER: Mistake. It was a mistake. It was not planned previously. When I took that person to get her, that mistake took place.

COUNSEL: I want to be fair to you BLBY, so I'll ask you this question. Do you know what the word mistake means?

INTERPRETER: Yes, that I mean I have committed a wrong thing. Mistake means a wrong thing. I erred.

COUNSEL: But by using the word mistake and words like 'silly error', are you suggesting that somehow this happened without your intention?

INTERPRETER: I don't want to make this mistake in future again in my life. Yes.

COUNSEL: And this language of 'mistake' and 'oversight', is this the language you use when you explain to friends what caused you to be in prison?

INTERPRETER: They understood me. They understood that I have done this mistake.

35    It can be seen that this is not a case where the issue was whether there was a mistranslation of a particular word. Having regard to the evidence given, in order to expose a basis for an opinion of the kind that Mr Asokarajan sought to express it was necessary to explain the nature of the alleged mistranslation in this passage (and other passages).

36    After the above passage, the Tribunal member then asked a number of questions including:

TRIBUNAL: So Mr Beetham was asking BLBY: so the words that we've been talking about like 'mistake' and 'accident', if they were the words that BLBY used when describing to his friends about what had occurred, what the offending was. So the answer would be yes or no. Yes, he did use those words; or no, he did not use those words.

INTERPRETER: Yes, I used the word 'mistake'.

37    Therefore, at that point, the focus was upon the particular word used. As to that word, as has been explained, Mr Asokarajan suggests that the applicant may have been referring to the fact that he was silly to have done what he did. The possibility of that alternative is not a sufficient foundation for the ultimate opinion expressed by Mr Asokarajan to the extent that it is to be read as a statement that, as a matter of interpretation, the applicant said that he was remorseful for what he has done.

38    As to the more general evidence of Mr Asokarajan concerning problems with interpretation, as has been explained they are confined to the part of the proceedings when submissions were made. There was no attempt by Mr Asokarajan to explain how those problems had any consequences for the interpretation of the evidence of the applicant. Nor was there any attempt in submissions in support of the present application to demonstrate the significance of such matters for the Tribunal's understanding of those submissions or matters that the applicant may have sought to raise by way of instructions to the lawyers conducted the Tribunal proceedings on his behalf.

39    It follows that the reasoning by Mr Asokarajan as to identified defects in the interpretation does not support the breadth of his conclusions as quoted at [25] and [28] (final sentence). In particular, there is no reasoning at all to support the conclusion that the applicant spoke words in Tamil that might be interpreted as conveying an understanding that what he did was 'serious and reprehensible' and that he is remorseful. Further, the reference in the final sentence quoted at [28] to being remorseful is followed immediately by what appears to be a reference to the applicant himself 'suffering, largely experiencing mental trauma'. It indicates a focus upon the consequences for the applicant rather than the victim of his offending. The addition of these words make it difficult to discern whether the reference to remorse is more in the nature of regret.

40    At its highest, Mr Asokarajan says that the interpreter in the proceedings before the Tribunal 'ignored the tone and context' in which the applicant expressed his wrongdoing. The difficulty is that Mr Asokarajan does not express an opinion as to the correct interpretation. Instead, he proceeds to express an opinion as to the ultimate question for determination by the Tribunal, namely that the applicant does understand the seriousness and is remorseful. These were matters for the Tribunal to decide having regard to what was said by the applicant. What the affidavit seeks to do is give evidence of Mr Asokarajan's opinion as to what the Tribunal should have decided.

41    Therefore, I uphold the objection to the admission of that part of the affidavit of Mr Asokarajan that purports to give evidence of his opinion quoted at [28] (final sentence).

42    As to the other evidence given by Mr Asokarajan, beyond a statement of his own opinion as quoted at [25] that there was an expression of remorse and an admission of guilt throughout the hearing, there is no evidence given of any error in interpretation that might provide the foundation for an opinion that there was an error as to interpretation of the applicant's oral evidence that bears upon those matters. Rather, it stands as a personal conclusion as to what Mr Asokarajan thinks the applicant was expressing. It does not sustain the submission advanced for the applicant that the Tribunal's conclusion to the contrary was informed by mistranslation of some kind. Indeed, as I have explained, the evidence of Mr Asokarajan fails to identify any such mistranslation.

43    Therefore, as was submitted for the Minister, Mr Asokarajan's evidence does not demonstrate inconsistency with the substance of the applicant's evidence as recorded in the transcript where he characterised his offending as a 'mistake' or 'silly error' or 'accident'. Rather, it seeks to give evidence as to a matter that the Tribunal was required to evaluate. Such an approach is impermissible. It usurps the Tribunal's function and is misconceived.

Ground 1: Alleged procedural unfairness by reason of errors in interpretation

44    For reasons that have been given, it has not been established that there were errors in interpretation concerning the evidence of the applicant as to his remorse.

45    As to the more general complaint about interpretation, early on in the Tribunal proceedings, counsel for the applicant observed that his instructor had 'an issue or a concern' with some of the interpreting and said to the Tribunal:

What I've said to my instructor is that we'll keep going and he'll obviously be listening in, and if he's got any concerns then he'll raise them through me.

46    It was not suggested that the Tribunal failed to address any concerns that were raised thereafter.

47    It is also to be noted that counsel for the applicant addressed the issues with interpretation in the following submission made after the evidence and material had been received by the Tribunal:

Now, there has been a number of times today that I've had concerns about the language that's been used and the understanding of the language that's being used. And, it's my submission, that taking a complete view of all of the facts and circumstances in this case there is evidence to show that my client acknowledges the seriousness of his offending. It may well be that he's not made a full expression of remorse in a way that would be expected to be seen in a plea of guilty or could have been made available through psychology reporting. And I concede that my instructor has not provided a psychological report to assist my client's cause, in particular the answer of remorse and rehabilitation.

However, the use of terms 'Silly error' and 'Weakness' and those sorts of matters again is my submission is an acknowledgement that he knows he's done the wrong thing. And he makes it clear in the statements that he makes that he won't do it again and some weight could be given to that. He certainly comes to this without (indistinct).

48    As has been observed, there was no attempt to identify particular consequences for the hearing that arose from what were identified in general terms as problems with interpretation. In order to demonstrate some unfairness in the procedure by reason of mistranslation it is necessary to articulate a respect in which there has been mistranslation and the way in which, in the particular legislative context, it may have had significance if the mistranslation had not occurred: DVO16 v Minister for Immigration and Border Protection [2021] HCA 12. These burdens were not assumed by the way in which the present case was articulated. It was put at a very high level of generality and, for reasons that have been given, without evidence to demonstrate relevant mistranslation.

49    Finally, the evidence referred to by the Tribunal concerning the applicant's lack of remorse or insight into the seriousness of his conduct was not confined to his oral evidence before the Tribunal. It included the following statement in a risk assessment report prepared by a social worker after interviewing the applicant:

The applicant reiterated that this crime was a silly error on his behalf, 'a moment of weakness' and his actions would never be repeated because he has brought shame upon himself, his wife and his children, and his community and does not want anything of this nature to ever happen again, he does not want to go through what he is going through now (prison), ever again. He reassured that he now knows the consequences and extent of the consequences for the crime and that it can ruin his and his families life if he reoffends or has his visa revoked.

50    Therefore, ground 1 is not made out.

Ground 2: Alleged failure to undertake deliberative task by reason of errors in interpretation

51    For reasons that have been given, errors in interpretation have not been demonstrated. Therefore, the premise for ground 2 has not been demonstrated.

Ground 3: Alleged error in failing to put a matter to the applicant

52    In the part of its reasons that dealt with the best interests of the applicant's minor children, the Tribunal found that one of the reasons why the factor was 'moderately in favour' of revocation of the visa cancellation was as follows (paras 103(b) and (c)):

As to whether the Applicant is likely to play a positive parental role in the future, the Applicant's children all still have some time until they reach 18 years of age. The Tribunal accepts that if given the opportunity, the Applicant will continue to play a parental role.

However, the extent to which his doing so would positively impact his children, given his lack of remorse for his victim, his failure to truly appreciate the very serious nature of his offending and his being yet to engage with support providers such as the Department of Child Protection carries with it an element of real concern for their safety.

(footnotes omitted)

53    The reference to the applicant being yet to engage with support providers such as the Department of Child Protection was footnoted to the risk assessment report by the social worker (to which reference has already been made). In that report, the social worker recorded in the following terms matters that she explained to the applicant:

I explained to the applicant how important it is that the Australian community be reassured that he and his wife and children are receiving the relevant on going professional help to prevent any future reoffending and that the risk is such that worry is not manifested throughout the community or among community groups who have been known to actively protest against the release from prison of convicted sex offenders. The Australian community can feel safe and assured whereby intervention and monitoring of the offender by a government department such as Department of Child Protection be implemented and referred to work with the family and undertake a safety assessment regarding the safety of his 3 children too.

54    The report went on to record the following:

The applicant reassured he would be open to receiving help from referred services and would engage in the professional help. He stated that he has already asked for help at the prison regarding his mental health by making an appointment with the prison nurse. The applicant intends to make an appointment to see the prison nurse again after the referral to the prison psychologist by the nurse was unsuccessful according to the applicant because the psychologist did not return the next day as scheduled.

55    The ground of review is to the effect that the Tribunal did not put the question whether there was a real concern for the safety of his own children to the applicant during the hearing and, as a consequence, the procedure was unfair because he was not given an opportunity to respond.

56    However, in submissions filed by the Minister before the hearing, a submission was advanced to the effect that on the material before the Tribunal there was a basis to conclude that the applicant's risk of reoffending was more than minimal or remote in circumstances where the report from the social worker had recommended the involvement of the Department of Child Protection 'for the safety of his children and others'.

57    Further, in the transcript of oral closing submissions before the Tribunal, counsel for the applicant is recorded as having advanced the following:

There's no evidence that the children, any of the children have been harmed by their father and I submit that a substantial amount of weight can be given in favour of revocation (indistinct) this factor.

58    I also accept the submission for the Minister that having regard to (a) the terms of the Direction; (b) the nature of the offending; (c) the factors in the social worker's report; and (d) the reliance by the applicant on the social worker's report, the issue was sufficiently disclosed as a matter of procedural fairness. This was not an instance where the adverse conclusion reached was one which was not obviously open on the known material such that it ought to have been put to the applicant: see the summary of the relevant principles in National Disability Insurance Agency v WRMF [2020] FCAFC 79; (2020) 276 FCR 415 at [66]-[69] (Flick, Mortimer and Banks-Smith JJ).

59    For those reasons, ground 3 is not made out.

Ground 4: Alleged failure to have regard to limitations of interpreted evidence

60    The submissions to support ground 4 were advanced at a high level of generality. It was not explained how cultural differences and feelings of shame might mean that all of the evidence relied upon by the Tribunal to reach its conclusions as to remorse and seriousness of the offending might be infected by the possible effects of cultural differences and feelings of shame. As to the oral testimony given by the applicant to the Tribunal there was no evidence from Mr Asokarajan that might support the submission.

61    As to the content of the statement provided by the applicant, part of the oral testimony by the applicant was to the effect that he did not want to describe the nature of his offending when that statement was prepared because he was assisted in preparing that statement whilst he was in custody and he was fearful of the repercussions of stating that information. However, that was not a matter of cultural difference or shame.

62    The applicant has failed to make out any foundation ground 4.

Ground 5: Alleged failure to consider maximum sentence

63    By ground 5, the applicant alleged that the Tribunal failed to consider the maximum possible penalty of 20 years imprisonment when considering the penalty of 18 months.

64    In the written submissions for the applicant, the nature of ground 5 (and the further grounds alleging a failure to consider relevant considerations, namely grounds 6, 7, 8 and 9) was explained as follows:

The Tribunal must consider each necessary and relevant consideration and an integer of the claim. It must consider a material question of fact, squarely raised by the material before the Tribunal. Failure to do so is a failure to discharge the Tribunal's jurisdiction. A failure to have regard to important information before the Tribunal or an error about it can be a jurisdictional error. While the High Court has cautioned against substituting other formulae for the requirement 'to consider', this does not mean that anything less than an active intellectual engagement is required in considering a relevant consideration. The Court can infer from the Tribunal's statement of reasons that if an issue is not mentioned it has not been considered.

(footnotes omitted)

65    It can be seen that the submission seeks to elevate to the level of a mandatory relevant consideration each and every failure to consider a material matter of fact when undertaking the deliberative task as to whether there is 'another reason' to revoke the visa cancellation. With respect, and for reasons that have been given, that submission should not be accepted.

66    As has been explained, the power being exercised by the Tribunal required that it have regard to the considerations stated in the Direction and to weigh them as required by the Direction. It was also required to advert to the representations made by the applicant so that it could understand their possible significance and evaluate whether, in the view of the Tribunal, they had significance. However, it was not the case that the Tribunal was required to include in its process of reasoning as a matter that the Tribunal was required to take into account any particular factual matter adverted to on behalf of the applicant.

67    Ground 5 was directed to the following statement in the Tribunal's reasons (para 72):

Finally, and for completeness, the overall seriousness of the Applicant's offending is further indicated by his prison sentence, being the last resort in the sentencing hierarchy.

68    This was the final statement in the reasoning by the Tribunal as to whether the applicant was remorseful and understood the seriousness of his offending. It was followed by a conclusion that the nature and seriousness of the applicant's conduct 'ought to be viewed very seriously and weighs strongly against revocation'.

69    The submission made orally was to the effect that the Tribunal should have brought to account the fact that the maximum term of imprisonment for the offending was 20 years when reaching a conclusion as to seriousness. A complaint of that kind seeks to cavil with the factual findings of the Tribunal. It was open to the Tribunal to conclude that sexual penetration of a child was conduct that should be viewed very seriously without having regard to the maximum sentence.

70    The notion that there was some mandatory requirement to have regard to the maximum sentence in its reasoning as to the seriousness of the offending was misconceived.

71    Ground 5 has not been made out.

Ground 6: Alleged failure to consider grant of parole and recidivism

72    Ground 6 suffers from the same conceptual defect as ground 5. It seeks to cast a failure to refer to a particular factual matter as part of the reasoning about a consideration to which the Direction required the Tribunal to have regard as a failure to consider a relevant consideration. In this instance, the applicant points to the grant of parole to the applicant and the evidence relating to recidivism. For reasons that have been given, cast in those terms ground 6 has not been made out.

73    However, in oral submissions, ground 6 was put in terms that the silence in the reasons about these 'serious and explicit points of the submissions' indicates that the Tribunal did not have regard to them. Again, the Tribunal was required to have regard to each consideration specified in the Direction. Relevantly for ground 6, the consideration was the risk to the Australian community should the applicant commit further offences or engage in other serious conduct (see para 8.1(2)(b) of the Direction). The particular matters to which the Tribunal was to have regard are stated in para 8.1.2. Those matters did not include parole or general evidence of rates of recidivism (as distinct from information and evidence on the risk of the applicant re-offending).

74    In any event, the submission was not developed by reference to what the Direction required. It was developed by reference to what was in the representations. As has been explained, a failure in reasons to refer to a matter in a representation is not sufficient to demonstrate error. Rather, it must be demonstrated that there has been a failure to read, identify, understand and evaluate the representations. Or, it must be shown that the Tribunal has ignored, overlooked or misunderstood relevant facts or materials or a substantial and clearly articulated argument.

75    The absence of any reference in the reasons to a significant factual matter raised in the applicant's representations may be a basis upon which to reach such a conclusion. However, the case was not put in that way. It was simply advanced on the basis of the contention by the applicant that the material about eligibility for parole and general recidivism for the type of offending was of such relevance that it must have been ignored or overlooked.

76    As to parole, the Tribunal's reasons refer to the applicant's eligibility for parole as part of his sentence as a matter raised by the applicant in support of revocation of his visa cancellation (para 60(b) and (c)).

77    The Tribunal provided the following reasoning as to why the submission for the applicant that his risk of reoffending was 'highly unlikely, if not non-existent' should not be accepted (at para 87):

(a)    The Applicant's continued denial of his offending and his previous desire to appeal his conviction stand contrary to his formal acknowledgement of the seriousness of his offending.

(b)    The lack of aggravating features or escalation is, in the Tribunal's view, irrelevant to his risk of reoffending.

(c)    It does not follow that because the Applicant has sexually offended once, he is unlikely to repeat his offending. Rather, the single instance of sexual offending demonstrates that he developed and indulged his sexual interest in the child victim.

(d)    The fact that the Applicant was unaffected by drugs or alcohol suggests his offending occurred in circumstances where his capacity to assess his conduct was unimpaired. This is not to his credit (contrary to the Applicant's submission).

(e)    While the Tribunal accepts the Applicant will have family support and housing if released, and that this is a protective factor against reoffending, his community support and employment prospects are less clear. The Tribunal is not satisfied the facts of his offending are known to his prospective employers or community members and many of the letters of support are now a number of years old. Further, the Tribunal did not hear oral evidence from any of the Applicant's community contacts or prospective employers and hence did not have the opportunity to hear from them on these matters.

(footnote omitted)

78    There was no attempt to demonstrate that the issue of parole or the evidence as to recidivism was given particular prominence in the representations to the Tribunal. The reasoning quoted above demonstrates an engagement with the matters that bear upon an assessment as to whether the applicant is likely to reoffend.

79    In all the circumstances, it has not been demonstrated that the Court should infer from the Tribunal's reasons that the Tribunal misunderstood or ignored factual matters that were relevant. The Tribunal has reached its own conclusions on the material.

80    Ground 6 has not been made out.

Grounds 7 and 8: Alleged failure to consider strong ties of marriage

81    For reasons that have been given, these grounds suffer from the same conceptual defect as ground 5. To the extent that the complaint, as presented orally, is that the Tribunal misunderstood or overlooked the effect of the strong ties of marriage between the applicant and his wife, the Tribunal found expressly as follows (para 171):

The Tribunal has considered the evidence and the parties' related submissions in the context of para 9.4.1(2) of Direction No. 90 and considers it uncontroversial that the Applicant's ties to Australia, are reasonably strong and have endured over the time he has resided in Australia. The Tribunal also accepts [the wife's] evidence regarding the strong familial connection the Applicant shares with her and their children.

(emphasis added)

82    The above conclusion was reached after the Tribunal had summarised the applicant's submissions concerning the strength, nature and duration of his family and social ties as including reliance on his links to his family being 'such that they would experience significant emotional, practical and financial hardship if he were removed' (at para 166). The relevant part of the reasons includes a footnote to the detailed submissions in this regard. However, there is no express reference in the reasons to the material relied upon.

83    In circumstances where the Tribunal accepted that there was a strong family connection shared between the applicant and his wife and between the applicant and their children, there was no need to recite the material. The claim was accepted and a finding favourable to the applicant was made by the Tribunal.

84    Grounds 7 and 8 are really no more than a complaint that the Tribunal should have given more weight or significance to those connections. A complaint of that kind does not allege jurisdictional error. It is a complaint about the way the Tribunal has exercised the decision making power that has been entrusted to it by the Parliament. The grounds are devoid of merit. I observe that they are not part of the grounds in respect of which the applicant seeks leave to amend.

Ground 9: Alleged failure to bring strong ties of marriage into account in weighing the factors as required by the Direction

85    As developed orally, ground 9 was a complaint about the way the finding as to the strong ties of marriage were evaluated as part of the weighing of the various considerations that the Tribunal was required by the Direction to undertake.

86    In the part of the Tribunal's reasons dealing with the strength, nature and duration of the applicant's ties to family and community, the Tribunal concluded that the consideration 'weighs moderately in favour' of revocation of the visa cancellation (para 176). It must be noted that this conclusion was not confined to the question of the applicant's ties to his wife and children. The Tribunal made adverse findings about the extent to which the material before the Tribunal demonstrated community support properly informed by an understanding of the nature of the applicant's offending (paras 172-173). The Tribunal also took into account the fact that the applicant arrived as an adult and that his offending occurred approximately five years after he entered the Australian community. These were matters that the Tribunal brought to account in considering the strength of community ties.

87    Undoubtedly, views may differ as to whether greater weight might have been given to the factor based upon the strength of family ties and the emotional, practical and financial hardship that would flow to the applicant's wife and children if he were not permitted to remain in Australia. However, the task of evaluating the weight to be given such matters is entrusted to the Tribunal and not to this Court.

88    Having regard to the reasons as expressed it cannot be said that there was a failure by the Tribunal to weigh the factor with other factors in making its decision. It was a matter that was specifically addressed and was specifically brought to account in the Tribunal's final weighing process.

Ground 10: Alleged unreasonableness

89    Ultimately, the submission advanced orally was to the effect that the various aspects of the reasoning process relied upon either individually or together demonstrated that the decision was legally unreasonable.

90    I recently summarised the principles to be applied where a claim of that kind is made in CWRG at [5]-[14]. I adopt and apply that reasoning in the present case.

91    To the extent that reliance is placed upon the same matters as were advanced in the other grounds, I have explained the relevant aspects of the reasons and the nature of the applicant's complaints. None of those matters rise to a basis for demonstrating legal unreasonableness (whether taken individually or together).

92    The only additional matter advanced is that it was said to be unreasonable for the Tribunal to find that the prospect of indefinite detention weighed in favour of revocation without attributing a comparative weight to that factor as part of the Tribunal's overall weighing process. As to indefinite detention, the Tribunal accepted that the 'the prospect of indefinite detention … weighs in favour of revocation' and indicated that it would consider the weight to be given to that factor 'as part of the weighing exercise below' (para 187). When it came to undertaking the weighing exercise, the Tribunal said simply (at paras 197 and 200):

The Applicant's prospect of indefinite detention weighs in favour of revocation.

…

There is also material regarding the Applicant's prospects of indefinite detention that the Tribunal considers weighs in favour of revocation.

93    The lack of evaluative qualifying words in the above passage from the Tribunal's reasons may be contrasted with the reasoning as to all other factors where the Tribunal applied some form of evaluative qualifying words as to the weight to be given that factor, such as weighs moderately or weighs strongly (whether for or against revocation, as the case may be).

94    Ultimately, the Tribunal concluded (para 201) that the unacceptable risk of harm to the Australian community and the seriousness of the Tribunal's concerns regarding there being any risk at all of the Applicant reoffending in a similar way meant that:

… the protection of the Australia community from future harm … is a primary consideration which, in addition to the expectations of the Australian community consideration, outweighs any and all considerations in the Applicant's favour.

95    I am not persuaded that in order to reach that conclusion in a manner that met the legal standard of reasonableness it was necessary for the Tribunal to allocate some form of evaluative qualifying words to the particular weight to be given the prospect of indefinite detention. The Tribunal plainly undertook the weighing task. Its reasons list all of the considerations to which it was required to have regard. It identifies those considerations which, in its view, outweighed any and all considerations that weighed in the applicant's favour. Reasoning in that manner could not be characterised as unreasonable in the requisite sense.

Application to amend

96    The Minister did not develop any submission as to why the application for leave to amend should be refused beyond addressing the question of merit. No prejudice was identified. The Minister was able to present submissions as to all points and did so. To the extent that these reasons conclude that certain aspects of the grounds lack merit, those aspects are not the subject of the application to amend. In those circumstances, I would allow the application to amend.

Costs and orders

97    For reasons that have been given, the application must be dismissed. It was accepted that costs should follow the event and there will be an order accordingly. In accordance with usual practice, and in the absence of any submission to the contrary, those costs should be assessed on a lump sum basis if not agreed.

Associate:

Dated:    24 February 2023