Federal Court of Australia

CRNL v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 252

ORDERS

THE COURT ORDERS THAT:

1.    The name of the first respondent is amended to read ‘Minister for Immigration, Citizenship and Multicultural Affairs’.

2.    The time within which the applicant had to apply for judicial review of the applicable migration decision is extended to 12 January 2022.

3.    The application for judicial review of the applicable migration decision is dismissed.

4.    The applicant is to pay the first respondent’s costs of the application for an extension of time and for judicial review to be fixed on a lump sum basis.

5.    On or before 6 April 2023, the parties are to file any agreed proposed minute of orders fixing a lump sum in relation to the first respondent’s costs.

6.    In the absence of any agreement being reached, the determination of an appropriate lump sum figure for the first respondent’s costs is referred to a Registrar for disposition.

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

REASONS FOR JUDGMENT

FEUTRILL J:

Introduction

1    This case concerns an application for an extension of time to apply for judicial review, and if the extension is granted, for judicial review of a decision of a member of the second respondent (Administrative Appeals Tribunal) by which, upon review, the Tribunal affirmed a decision of a delegate of the first respondent (Minister) not to revoke the mandatory cancellation of the applicant’s visa under s 501CA(4) of the Migration Act 1958 (Cth). The applicant’s visa was cancelled because he failed to pass the character test under ss 501(3A), 501(6)(a) and 501(7)(c) of the Act.

2    The applicant contends that the Tribunal failed to have regard to mandatory relevant considerations in that it failed to have regard to ‘other considerations’ identified in cll 9.2, 9.3 and 9.4.1 of Direction 90 (described later in these reasons). Further, that the Tribunal failed to give active intellectual consideration to the task of balancing the mandatory relevant considerations it was required to take into account in accordance with Direction 90.

3    For the reasons set out below, leave to extend the time within which the applicant had to apply for judicial review is granted, but I am not satisfied that the Tribunal made errors of the nature that the applicant asserts. Accordingly, the application for judicial review and for writs of mandamus and certiorari to issue is dismissed.

Factual Background

4    The applicant was born in 1982 and is a citizen of New Zealand. He arrived in Australia in 2004 and was granted a Class TY Subclass 444 – Special Category (Temporary) visa in February 2007. Thereafter, the applicant did not obtain Australian citizenship.

5    The applicant has two biological children and two step-children, however, the applicant considers himself to be the father of his step-children and is by all accounts a devoted and loving father. The applicant’s eldest child, who is now an adult, resides in New Zealand with his mother who is a former partner of the applicant. The applicant’s children who reside in Australia are all under the age of 18. The applicant’s de facto partner and immediate family, including his mother, step-father and four siblings reside in Western Australia along with numerous extended family members. Evidence was provided to the Tribunal by the applicant’s mother, who was called as a witness, to the effect that she is undergoing treatment for cancer and requires the assistance of the applicant to help her with the daily management of her small business.

6    During his time in Australia, the applicant has had relatively regular employment in a number of roles including as a labourer and small business owner and has gained tertiary level trade qualifications.

7    The applicant has been convicted of a number of assault related offences including serious offences relating to domestic violence, breaches of family violence restraining orders and deprivation of liberty that were committed against a number of former intimate partners and the applicant’s current partner. On two occasions, the applicant’s assault convictions resulted in terms of imprisonment.

8    First, on 16 July 2013, the applicant was sentenced to a term of imprisonment of 15 months on charges of threats to injure, endanger or harm any person; and threat(s) to destroy, damage, endanger or harm property; wilfully and unlawfully destroy or damage property; deprivation of liberty, and common assault in circumstances of aggravation. The conduct occurred in relation to an alleged dispute with a former partner.

9    Second, on 16 November 2020, the applicant was convicted of six counts of breaching a family violence restraining order. The applicant was sentenced to seven months imprisonment for each count, to be served concurrently. On the same date, the applicant was also convicted of breaching the terms of a previous imprisonment order imposed on 30 April 2020, in which he was convicted of common assault and sentenced to a seven months suspended sentence. As a result of the breach, the applicant was ordered to serve the seven month sentence concurrently with the sentence already imposed.

10    During his time in Australia, the applicant has also received a number of non-custodial sentences for offences that include, but are not limited to, possession of a prohibited drug (cannabis), possession of drug paraphernalia, disorderly behaviour in public, breaching bail conditions, wilful and unlawful destruction of property and driving offences.

11    On 3 December 2020, the applicant’s visa was cancelled under s 501(3A) of the Act by a delegate of the Minister on the basis that he did not pass the character test as he had a substantial criminal record under s 501(6)(a), due to serving a term of imprisonment of 12 months or greater: s 501(7)(c) of the Act, which is discussed further below.

12    In March 2021, the applicant completed his custodial sentence and was transferred into immigration detention due to the cancellation of his visa.

13    In April 2021, the applicant applied to the Tribunal for a review of the cancellation decision under s 500(1)(ba) of the Act. On 21 June 2021, the Tribunal affirmed the cancellation decision and written reasons for the decision were provided to the applicant on 19 July 2021: CRNL and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2382.

14    On 12 January 2022, the applicant, who at that stage was self-represented, filed an application for an extension of time and a draft originating application for review of a migration decision in this Court. An amended application for an extension of time and draft originating application for review of a migration decision was filed on 17 August 2022.

Legislative scheme

15    Section 501(3A) of the Act provides that the Minister must cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the character test, relevantly because of the operation of s 501(6)(a) and s 501(7)(c) (substantial criminal record on the basis of a sentence of imprisonment of 12 months or more) and 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, State or Territory. It is common ground that the applicant does not pass the character test.

16    The rules of natural justice do not apply to a decision made under s 501(3A): s 501(5) of the Act. Therefore, a person’s visa is cancelled without that person being afforded procedural fairness: Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 96 ALJR 497 at [10].

17    A consequence of the cancellation of a visa under s 501(3A) is that that the former visa holder is no longer a lawful non-citizen and becomes an unlawful non-citizen: ss 13, 14, 15 of the Act. The former visa holder must be taken into immigration detention and must be removed (deported) from Australia as soon as reasonably practicable: ss 189 and 198 of the Act.

18    Section 501CA(3) of the Act makes provision for a procedure by which the decision to cancel a visa under s 501(3A) (referred to as the original decision) may be revoked. As soon as practicable after making the original decision the Minister must: (a) give the person a written notice that sets out the original decision and particulars of certain information the Minister considers would be the reason, or part of the reason, for making the original decision (referred to as 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’. Regulation 2.52 of the Migration Regulations 1994 (Cth) makes provision for the manner in which representations are to be made to the Minister.

19    Section 501CA(4) of the Act provides that the Minister may revoke the original decision if:

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

(b)    the Minister is satisfied that:

(i)    the person passes the character test; or

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

20    Section 496 of the Act makes provision for the Minister to delegate to a person any of the Minister’s powers under the Act. A delegate is, in the exercise of a delegated power, subject to the directions of the Minister. Section 499 of the Act provides that the Minister may give written directions to a person or body having functions or powers under the Act.

21    The Minister has issued a number of directions regarding the exercise of a delegate’s power under s 501CA(4) of the Act. The applicable direction in this case was Direction 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction 90). Under s 499(2A), the delegate was required to comply with Direction 90. The Tribunal in the exercise of its ‘review’ function under s 500(1)(ba) of the Act, was also obliged to comply with Direction 90. In so doing, the delegate and the Tribunal were obliged, when considering if there were another reason to revoke the original decision, to take into account the primary considerations and, where relevant, the other considerations described in Direction 90.

22    Section 474 of the Act provides that a privative clause decision: is final and conclusive; must not be challenged, appealed against, reviewed, quashed or called in question in any court; and is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account. The effect of s 474 is to exclude a court from reviewing and granting relief for any error a decision-maker has made in respect of a privative clause decision. A decision of the Minister or a delegate refusing to revoke a mandatory cancellation of a visa is a privative clause decision. However, where a delegate of the Minister has made such a decision, the former visa-holder has a right to apply to the Tribunal for a ‘review’ of that decision under s 500(1)(ba) of the Act. A decision of the Tribunal under s 500(1)(ba) is also a privative clause decision to which s 474 of the Act applies.

23    Notwithstanding the terms of s 474 of the Act, the section does not have the effect of excluding the original jurisdiction of the High Court to review decisions of administrative decision-makers for jurisdictional error under s 75(v) of the Constitution: Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476 at [76]. Where the Tribunal has made or purported to make a privative clause decision, the High Court’s jurisdiction to review such a decision for jurisdictional error is conferred on the Federal Court. Otherwise, s 474 of the Act and s 43C of the Administrative Appeals Tribunal Act 1975 (Cth), exclude any right to appeal to the Federal Court from a decision of the Tribunal that is a ‘privative clause decision’.

24    The Federal Court’s original jurisdiction to review a decision of the Tribunal is derived from ss 75(v) and 77(i) of the Constitution and s 476A(1)(b) of the Act. The effect of ss 474 and 476A of the Act is to limit the jurisdiction of the Court to the same jurisdiction as that which the High Court is able to exercise under s 75(v) of the Constitution with respect to a ‘migration decision’ that is a ‘privative clause decision or a purported privative clause decision’ of the Tribunal on review under s 500(1)(ba) of the Act. The Court’s power on such a review is limited to considering the extent to which the Tribunal exercised its powers within the limits of its statutory authority or failed to exercise powers it was bound to exercise. ‘The inquiry is not about whether a decision which was made in the exercise of the authority was right or wrong on its merits. It is an inquiry about the boundaries of the power conferred’: Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 at [160].

25    The constitutional writs referred to in s 75(v) of the Constitution extend the Court’s jurisdiction to grant relief in the form of: an order restraining the Tribunal from exceeding its jurisdiction (writ of prohibition); an order commanding the Tribunal to fulfil a statutory duty that remains unperformed, actually or constructively (writ of mandamus); or an injunction. The Court also has jurisdiction to grant relief ancillary to the constitutional writs in the form of an order quashing or setting aside a decision that was made in excess of the limits of statutory authority or a declaration of right pertaining to the exercise or failure to exercise power: e.g., Re McBain; Ex parte Australian Catholic Bishops Conference [2002] HCA 16; (2002) 209 CLR 372 at [176].

Extension of time

26    An application to the Court for a remedy to be granted in the exercise of the Court’s original jurisdiction under s 476A(1)(b) or (c) in relation to a migration decision must be made to the Court within 35 days of the date of the migration decision. However, the Court may, by order, extend that 35 day period as the Court considers appropriate if an application is made in writing for such an order and the Court is satisfied that it is in the interests of the administration of justice to make the order: s 477A(2) of the Act.

27    In this case, the relevant migration decision was made on 21 June 2021. The Tribunal provided reasons for its decision on 19 July 2021. An application for judicial review of that decision was not made within 35 days. On 12 January 2022, an application for an extension of the 35 day period was made under s 477A(2) of the Act and r 31.23 of the Federal Court Rules 2011 (Cth).

28    Subject to the conditions precedent referred to in [26], the Court has an unfettered discretion to grant an extension of time under s 477A(2). Nonetheless, there are a number of factors that the Court will usually take into account in the exercise of the discretion of this nature, such as: (a) the length of the delay and any explanation for the delay in making the application; (b) the merits of the proposed grounds of judicial review; and (c) any prejudice to the respondent in granting the extension of time: SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284; (2013) 236 FCR 442 at [46]-[48] and [52]. When considering the merits of the proposed grounds, they are to be assessed at a level of impression so as to be satisfied that, if the extension of time were granted, the grounds of review have reasonable prospects of success: MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; (2015) 242 FCR 585 at [62]-[63] and [66] and FKV17 v Minister for Home Affairs [2022] FCAFC 93; (2022) 402 ALR 492 at [95] and [150]-[153]; Pokrywka v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1287 at [24].

29    The applicant provided an explanation for the delay between the Tribunal’s decision on 21 June 2021 and his application to this Court on 12 January 2022. The substance of the applicant’s explanation it is that he was in immigration detention and had difficulties obtaining information about and advice concerning the process by which he could challenge the Tribunal’s decision. He also spent a period of time in hospital and had his personal possessions including documents and telephone taken from him in connection with his mental health and threats to self-harm. These impediments to him making an application were resolved towards the end of 2021 and he then made the application to this Court.

30    While the Minister opposes the application for extension of time on the basis that the application for judicial review lacks sufficient merit when assessed on an impressionistic level, there is no evident prejudice to the Minister if leave were granted. The Minister made no submissions to the contrary.

31    Having regard to the parties’ written and oral submissions, which are addressed in more detail later in these reasons, I am satisfied that the proposed ground of review has sufficient prospects of success to warrant a full consideration of the merits of the application. Taking into account the severe consequences of the cancellation of the applicant’s visa for the applicant and his family, that there is an explanation for the delay and that there is no apparent prejudice to the Minister, I am satisfied that it is in the interests of the administration of justice that an extension of time is granted. It follows that I grant the applicant the requested extension of time to apply for review of the Tribunal’s decision.

Issues

32    It was common ground between the parties on the application that the Tribunal was required to apply Direction 90 and that the Tribunal had correctly identified the legal principles applicable to the application of that direction in the circumstances of this case. That is, the Tribunal was obliged to consider the evidence, the issues raised on the evidence, what factors within Direction 90 were relevant, and then weigh the primary and other considerations referred to in Direction 90 in an holistic way before reaching a conclusion as to whether there was another reason for revoking the cancelation of the applicant’s visa.

33    The issues between the parties on the application concerned whether the Tribunal had undertaken that task. Specifically, the applicant contended that the Tribunal had failed to have regard to all the mandatory relevant factors, in that it had no regard to the ‘other considerations’ identified in cll 9.2, 9.3 and 9.4.1 of Direction 90. Further, the applicant contended that if, contrary to that contention, the Tribunal had turned its mind to those ‘other considerations’ it had failed to give active intellectual consideration to the task of balancing the competing factors.

34    It was also common ground that the issues arising on the application were to be resolved by a consideration of the Tribunal’s reasons for decision alone. Further, if error of one or both of the kinds asserted were found to have been made, that error was jurisdictional and no question of materiality arises in the circumstances of this case.

Applicable principles

35    In Pokrywka at [31] – [50] I set out the principles applicable to judicial review of a decision of the Tribunal under s 500(1)(ba) of the Act. In short, the concept of jurisdictional error is not straight-forward and describes a conclusion rather than a legal principle as such. It is ‘an expression not simply of the existence of error but of the gravity of that error’: Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123 at [25]. At the heart of the concept is the notion that administrative decision-makers and tribunals of limited jurisdiction must exercise decision-making powers when the legislative framework obliges them to do so and, in any case, within the legislated boundaries of those powers. Relevantly, jurisdictional error arises, subject to materiality, where a decision-maker fails to exercise power when obliged to do so, or exceeds the statutory limits of power: Kirk v Industrial Court (NSW) [2010] HCA 1; (2010) 239 CLR 531 at [72]; Craig v The State of South Australia [1995] HCA 58; (1995) 184 CLR 163 at 176-180. Thus, the starting point is to determine what the Tribunal was permitted or required to do in accordance with the applicable legislation. It is then necessary to consider what action or inaction of the Tribunal it is contended took the Tribunal outside its jurisdiction or comprised a failure to exercise jurisdiction when it was bound to do so.

36    In Pokrywka (at [57] – [64]) I also explained the importance of directions made under s 499 of the Act in a case such as the present one. While the observations I made in Pokrywka concerned Direction 79, these are equally applicable to Direction 90. In particular, Direction 90 and the considerations described in it may be regarded as a mandatory relevant consideration of the kind referred to in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 39 – 40. In Pokrywka (at [51], [52], [65] – [68]) I also explained the importance and significance of an applicant’s representations (including the applicant’s case as articulated in his statement of facts issues and contentions and submissions in the Tribunal proceedings) and the essential characteristics of an ‘active intellectual process’ in the context of a consideration of those representations. These principles are also relevant to the question of whether a decision-maker has engaged in an active intellectual process when taking into account the mandatory relevant considerations described in Direction 90.

37    In Plaintiff M1/2021 (at [22] - [27]) the majority of the High Court summarised the principles applicable to a decision-maker’s consideration of the ‘representations’ of a former visa-holder to the exercise of the discretion under s 501CA(4) of the Act. These principles are also relevant to a decision-maker’s consideration of mandatory relevant considerations under Direction 90 as the contents of a former visa-holder’s representations may engage one or more of the mandatory relevant considerations described in Direction 90. In particular, the majority said (most footnotes omitted):

22    Section 501CA(4) of the Migration Act confers a wide discretionary power on a decision-maker to revoke a decision to cancel a visa held by a non-citizen if satisfied that there is 'another reason' why that decision should be revoked. The statutory scheme for determining whether the decision-maker is satisfied that there is 'another reason' for revoking a cancellation decision commences with a former visa holder making representations. In determining whether they are satisfied that there is 'another reason' for revoking a cancellation decision, the decision-maker undertakes the assessment by reference to the case made by the former visa holder by their representations.

23    It is, however, improbable that Parliament intended for that broad discretionary power to be restricted or confined by requiring the decision-maker to treat every statement within representations made by a former visa holder as a mandatory relevant consideration. But the decision-maker cannot ignore the representations. The question remains how the representations are to be considered.

24    Consistently with well-established authority in different statutory contexts, there can be no doubt that a decision-maker must read, identify, understand and evaluate the representations. Adopting and adapting what Kiefel J (as her Honour then was) said in Tickner v Chapman [(1995) 57 FCR 451 at 495], the decision-maker must have regard to what is said in the representations, bring their mind to bear upon the facts stated in them and the arguments or opinions put forward, and appreciate who is making them. From that point, the decision-maker might sift them, attributing whatever weight or persuasive quality is thought appropriate. The weight to be afforded to the representations is a matter for the decision-maker. And the decision-maker is not obliged 'to make actual findings of fact as an adjudication of all material claims' made by a former visa holder.

25    It is also well-established that the requisite level of engagement by the decision-maker with the representations must occur within the bounds of rationality and reasonableness. What is necessary to comply with the statutory requirement for a valid exercise of power will necessarily depend on the nature, form and content of the representations. The requisite level of engagement - the degree of effort needed by the decision-maker - will vary, among other things, according to the length, clarity and degree of relevance of the representations. The decision-maker is not required to consider claims that are not clearly articulated or which do not clearly arise on the materials before them.

26    Labels like 'active intellectual process' and 'proper, genuine and realistic consideration' must be understood in their proper context. These formulas have the danger of creating 'a kind of general warrant, invoking language of indefinite and subjective application, in which the procedural and substantive merits of any [decision-maker's] decision can be scrutinised'. That is not the correct approach. As Mason J stated in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [(1986) 162 CLR 24 at 40; see also 30, 71], '[t]he limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind'. The court does not substitute its decision for that of an administrative decision-maker.

27    None of the preceding analysis detracts from, or is inconsistent with, established principle that, for example, if review of a decision-maker's reasons discloses that the decision-maker ignored, overlooked or misunderstood relevant facts or materials or a substantial and clearly articulated argument; misunderstood the applicable law; or misunderstood the case being made by the former visa holder, that may give rise to jurisdictional error.

38    Whether in the context of a consideration of ‘representations’ or in the context of mandatory relevant considerations under Direction 90, a conclusion that the decision-maker ‘has not engaged in an active intellectual process will not lightly be made and must be supported by clear evidence, bearing in mind that the judicial review applicants carry the onus of proof’: Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352 at [48] (the caution with which the label ‘active intellectual process’ must be approached does not detract from the standard expressed there). The onus lies on the appellant to establish on the balance of probabilities that a relevant matter was not considered, taking into account that the reasons of the Tribunal must be read fairly and not in an unduly critical manner: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 272; and BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; (2019) 268 CLR 29 at [38], as summarised in Savaiinaea v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 56 at [73] (Collier, Perry and Anastassiou JJ).

39    Further, as the Full Court said in Navoto v Minister for Home Affairs [2019] FCAFC 135 at [89] (Middleton, Moshinsky and Anderson JJ):

Excluding obvious cases, the determination of whether the decision-maker has given active intellectual consideration to a representation will frequently be a matter of impression reached in light of all of the circumstances of the case. In this context, whether or not the reasons of the decision-maker fall ‘on the wrong side of the line’, to quote Lafu [[2009] FCAFC 140; (2009) 112 ALD 1] at [49], will be a matter of inference to be drawn in particular from the manner in which the representation was advanced, and the structure, tone and content of the decision-maker's reasons. …

40    'What is required is the reality of consideration by the decision-maker. On judicial review the Court must therefore assess, in a qualitative way, whether the decision-maker has as a matter of substance had regard to the representations put': Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216; (2018) 267 FCR 643 at [45] (Rares and Robertson JJ). Or, here, whether the decision-maker has, as a matter of substance, had regard to mandatory relevant ‘other considerations’ in accordance with Direction 90.

41    The onus lies on the former visa-holder to establish on the balance of probabilities that the relevant claim (or, as here, the mandatory relevant consideration) was not considered, taking into account that the reasons of the Tribunal must be read fairly and not in an unduly critical manner: Liang at 272; BVD17 at [38]; Savaiinaea at [73].

42    The High Court has said that ‘the reasons of an administrative decision-maker are meant to inform and [are] not to be scrutinised upon over-zealous review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed’: Liang at 272 . However, ‘[j]ust as reasons for an administrative decision should not be read with an eye keenly attuned to discerning error … eyes should not be so blinkered as to avoid discerning an absence of reasons or reasons devoid of any consideration of a submission central to a party’s case.’: Soliman v University of Technology, Sydney [2012] FCAFC 146; (2012) 207 FCR 277 at [57].

43    In Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83; (2015) 231 FCR 513 the Full Court said (at [46]):

Mere advertence to a matter required to be taken into consideration may not be sufficient to establish that it has been properly considered: cf Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts (2011) 179 LGERA 458 at [100] per Cowdroy J. The serious consequences confronted by an individual who has had a visa cancelled pursuant to s 501 may well require, in an appropriate case, such a conclusion being reached. Even a ritualistic incantation of a risk being, for example, an 'unacceptable risk' or a 'grave and serious risk', may not be sufficient to clothe a statement of reasons with impunity.

44    As noted earlier in these reasons, there was no real difference between the parties concerning the applicable principles. The main point of difference was whether the Tribunal’s reasons for decision revealed that that the mandatory relevant ‘other considerations’ that arose from the applicant’s representations to the Tribunal were not taken into account when the Tribunal came to consider if there were ‘another reason’ for revoking the cancellation of the applicant’s visa. Alternatively, that there was an absence of a genuine active intellectual consideration of the competing factors.

45    In this regard, I accept that Direction 90 requires there to be true balancing process and not a mechanical application of factors. Although made with respect to a different direction (Direction 21), I consider that the following observations of Gray J in Milne v Minister for Immigration and Citizenship [2010] FCA 495; (2010) 52 AAR 1 (at [45]) apply to the process the Tribunal (or a delegate) is required to undertake when considering primary and other considerations under Direction 90:

… A true balancing process could result in a decision not to cancel a visa when a slight balance of the primary considerations in favour of cancellation is measured against other considerations pointing strongly against cancellation. In many cases, the three primary considerations will not all point in the same direction. The balancing process is not intended to be mechanical. It is certainly not intended always to produce the result dictated by the preponderance of the primary considerations. If that were the intention, it would be pointless to instruct the decision-maker to have regard to the other considerations. For a decision-maker to regard himself or herself as bound to give less weight to the other considerations than to the primary considerations would be a jurisdictional error. It would mean that the decision-maker would not have discharged his or her statutory function.

The Tribunal’s reasons for decision

46    The Tribunal commenced the Tribunal's reasons for decision (RFD) by setting out the applicant's background and procedural history (RFD paras [1] - [7]). The Tribunal then set out the legislative framework and the evidence and conclusion that the applicant did not pass the character test (RFD paras [8] - [14]). The Tribunal then recorded that the applicant made representations in accordance with s 501CA(4)(a) of the Act and, as the Tribunal was not satisfied that he passed the character test, considered whether there is a another reason why the mandatory visa cancellation decision should be revoked under s 501CA(4)(b)(ii). In that respect, the Tribunal set out the evidence and representations and (or) submissions made to the Tribunal in that regard (RFD paras [14] - [18]).

47    The Tribunal correctly directed itself that in considering whether to exercise the discretion in s 501CA(4) of the Act it was bound by s 499(2)(A) to comply with any directions made under the Act. Further, that Direction 90 applied in this case. As noted earlier, it was common ground that the Tribunal correctly set out the principles applicable under Direction 90, as they applied to this case (RFD paras [19] - [25]). In particular, the Tribunal said (RFD paras [23] - [25]) (footnotes omitted):

23.    Paragraph 8 of the Direction sets out four Primary Considerations that the Tribunal must take into account and they are:

(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.

24.    Paragraph 9 of the Direction sets out five Other Considerations which must be taken into account. These considerations are:

a)    international non-refoulement obligations;

b)    extent of impediments if removed;

c)    impact on victims; and

d)    links to the Australian community, including:

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

ii)     impact on Australian business interests

25.    I note the importance of the Other Considerations being “other” considerations, as opposed to “secondary” considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:

“…Direction 65 [now Direction 90] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non-refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.”

48    The Tribunal then set out a summary of the applicant's criminal history (RFD paras [26] - [27]).

49    The Tribunal considered primary consideration 1 - protection of the Australian community (RFD paras [28] - [74]). In the Tribunal's consideration of that primary consideration the Tribunal made the following observations (footnotes omitted) (RFD paras [33] - [74]):

33.    In view of the Applicant’s sustained offences against female partners and breaches of apprehended violence orders, I consider his behaviour extremely serious and am very concerned that whatever remorse he alleges is more than offset by his attempts to apportion blame for his offending to his female partners.

…

40.    I find the frequency of the Applicant's offending and the associated effects to be very serious.

…

42.    The Applicant had a criminal record in New Zealand involving a term of imprisonment but declared that he had no criminal convictions when completing incoming passenger cards to Australia in 2005 and 2007.

…

44.    Sub-paragraph (g) of paragraph 8.1.1(1) of the Direction looks for evidence about whether the non-citizen has re-offended since being formally warned about the consequences of further offending in terms of the non-citizen’s migration status.

…

47.    Paragraph 8.1.2(1) provides that in considering the need to protect Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.

…

62.    I [am] very concerned about, and place considerable weight on, the Applicant’s continued demonstration of insufficient remorse or insight into his behaviour. I note that he, on multiple occasions, suggested his victims provoked his behaviour or that they harassed or abused him.

63.    Of particular concern is that when the Applicant was cross examined about multiple incidents of physical and/or verbal assaults involving six different women, he made the following remarks:

“I've got a thing for choosing broken women, and in the process of trying to fix myself and help them, it's kind of an uphill battle”.28

“I do choose treacherous women - yes, I do choose angry women, broken women, they seem to - I seem to be attracted to women that have a high risk for myself."

64.    The Applicant's past behaviour has involved physical and mental trauma former partners and his current partner.

65.    I find the nature of the harm that would be caused if the Applicant reoffended to be so serious that any risk that it may be repeated may be unacceptable, bearing in mind that paragraph 5.2(5) of the Direction provides that the inherent nature of conduct such as family violence is so serious that even strong countervailing considerations may be insufficient in some circumstances.

…

73.    Those factors, together with the attitude displayed in the above-mentioned reports and his record of offending, cause me to find that there is a significant likelihood of the Applicant reoffending and such reoffending is likely to cause significant mental and/or physical harm to members of the Australian community.

74.    I find that this primary consideration mitigates heavily against the revocation sought.

50    The Tribunal considered primary consideration 2 - family violence (RFD paras [75] - [77]) and concluded that this primary consideration 'weighs very heavily against revocation'.

51    The Tribunal considered primary consideration 3 - the best interests of minor children in Australia (RFD paras [78] - [83]) and said (RFD paras [82] - [83]):

82.    Accordingly, I find is the best interests of the Applicant's children to have the cancellation order revoked.

Conclusion: Primary Consideration 3

83.    I place significant weight upon this consideration.

52    The Tribunal considered primary consideration 4 - the expectations of the Australian community (RFD paras [84] - [91]) and concluded (RFD para [91]): 'I consider this primary consideration weighs heavily against the revocation sought'.

53    The Tribunal then turned to consider other considerations (RFD paras [92] - [112]). The Tribunal made, in this part of its reasons, the following observation (RFD para [92]): 'It is necessary to look at the Other Considerations listed at paragraph 9 of the Direction. I will now consider each of the four stipulated sub-paragraphs (a), (b), (c) and (d [sic (d)]'.

54    The Tribunal considered the extent of impediments to the applicant if removed from Australia and concluded (RFD para [100]): 'I consider that this factors [sic] to be of moderate weight supporting revocation'. The Tribunal considered impact on victims and said (RFD paras [103] - [104]):

103.    The Applicant's partner gave persuasive evidence that she wishes the Applicant to remain in [sic] help with their children's upbringing.

104.    Accordingly, I considered this factor to be of moderate weight supporting revocation.

55    The Tribunal considered the applicant's links to the Australian community and concluded (RFD para [111]): 'Despite the fact the Applicant has offended within Australia shortly after his arrival I place moderate weight upon this consideration'.

56    The Tribunal then set out a series of paragraphs before reaching its ultimate conclusion that the decision under review was affirmed. These are the paragraphs upon which the applicant's contentions in this application are primarily based. The Tribunal said (RFD paras [112] - [116]):

Impact on Australian business interests

112.    The Applicant does not claim that his removal from Australia would adversely impact on Australian business interests. No weight can be allocated under paragraph 9.4.2 of the Direction.

Findings: Other Considerations

The application of the Other Considerations in the present matter can be summarised as follows:

(a)    international non-refoulement obligations: no weight;

(b)    extent of impediments if removed: moderate weight;

(c)    impact on victims: moderate weight; and

(d)    links to the Australian community including the strength, nature, and duration of ties to Australia; moderate weight; and the impact on Australian business interests; no weight.

CONCLUSION

113.    I am now required to weigh all of the Considerations in accordance with the Direction:

(a)    Primary consideration 1: protection of the Australian community For the reasons outlined above, I place considerable weight upon this consideration mitigating against revocation.

(b)    Primary consideration 2: family violence I also place considerable weight upon this consideration weighing against revocation because of the nature of the family violence offences committed against both his current partner and at least one former partner, including breaching the conditions of FVOs.

(c)    Primary consideration 3: the best interests of minor children in Australia I have found the revocation would be in the best interests of the Applicant’s children, and I place significant weight upon this consideration.

(d)    Primary consideration 4: the expectations of the Australian community For the reasons outlined above I find this consideration weighs strongly against revocation especially bearing in mind the community’s attitude towards those who commit offences involving domestic violence.

114.    The Application of the Direction therefore favours the non-revocation of the cancellation of the Applicant’s visa.

115.    Consequently, I do not exercise the discretion to revoke the cancellation of the Applicant’s visa.

DECISION

116.    The decision under review is affirmed.

57    The first passage in the quote from the Tribunal's reasons above is the last paragraph (RFD para [112]) in which the Tribunal was dealing with the other considerations. The next heading 'Findings: Other Considerations' deals with the Tribunal's conclusions, in a summary way, on the various other considerations the subject of the Tribunal's discussion in paras [92] - [112]. Although the paragraph is not numbered, logically, it is a separate paragraph following para [112] and preceding para [113].

Consideration

58    Insofar as the first limb of the applicant’s grounds is concerned, he submitted that para [113] of the Tribunal’s reasons, where it is said that the Tribunal is ‘required to weigh all of the Considerations in accordance with the Direction’, sets out the primary considerations and none of the ‘other considerations’. Therefore, in terms, para [113] contains no weighing of the ‘other considerations’.

59    The applicant’s submission has some force when para [113] is read in isolation and literally. However, in context and having regard to the reasons of the Tribunal as a whole, in my view, the Tribunal has not failed to take into account the ‘other considerations’.

60    The Tribunal correctly identified that it was required to apply Direction 90. Further, that it was required to consider both primary and other considerations. The Tribunal considered all the primary considerations and made observations about the weight attributed to each consideration as it was considered. The Tribunal considered the other considerations and, likewise, made observations about the weight attributed to them and the direction in which the factor pointed for the purpose of the ultimate question of whether there was ‘another reason’ for revoking the decision to cancel the applicant’s visa.

61    Reading the Tribunal’s reasons without an eye keenly attuned to error means that the un-numbered paragraph that precedes para [113] should be read with para [113]. The word ‘now’ in para [113] provides a link between the summary of the ‘other considerations’ in the un-numbered paragraph and the primary considerations set out in para [113]. Paragraph [114] should also be read with the un-numbered paragraph and [113] such that the word ‘therefore’ in [114] captures an evaluation of the factors recorded in the un-numbered paragraph and [113].

62    It follows that I do not consider that the Tribunal’s reasons, when considered as a whole, reveal a failure to take into account the relevant ‘other considerations’ as is required by Direction 90.

63    As to the second limb and the contention that the Tribunal failed to give active intellectual consideration to the task of balancing the competing factors (primary and other considerations), the applicant placed emphasis on the use of the word ‘therefore’ in [114]. Also, that the un-numbered paragraph and [113] listed various factors and weight and the ‘therefore’ in [114] suggests that the Tribunal engaged in some sort of mathematical or arithmetic calculation rather than a genuine evaluation and weighing of the competing factors.

64    Again, there is force in the applicant’s contention if the un-numbered paragraph, [113] and [114] are read divorced from the balance of the Tribunal’s reasons. However, that view cannot be maintained when those paragraphs are read in the context of the reasons as a whole. In my view, the reasons reveal that the Tribunal undertook the statutory task of reading, understanding and evaluating the applicant’s representations and the competing considerations that arose on the evidence that were required to be taken into account under Direction 90.

65    In reaching this conclusion I am mindful of the observations of Allsop CJ in Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; (2018) 267 FCR 628 at ([3]):

By way of preliminary comment, it can be said that cases under s 501 and the question of the consequences of a failure to pass the character test not infrequently raise important questions about the exercise of Executive power. Among the reasons for this importance are the human consequences removal from Australia can bring about. Public power, the source of which is in statute, must conform to the requirements of its statutory source and to the limitations imposed by the requirement of legality. Legality in this context takes its form and shape from the terms, scope and policy of the statute and fundamental values anchored in the common law: Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 at [9]; Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 at [59]. The consequences of these considerations are that where decisions might have devastating consequences visited upon people, the obligation of real consideration of the circumstances of the people affected must be approached confronting what is being done to people. This obligation and the expression of its performance is not a place for decisional checklists or formulaic expression. Mechanical formulaic expression and pre-digested shorthand expressions may hide a lack of the necessary reflection upon the whole consideration of the human consequences involved. Genuine consideration of the human consequences demands honest confrontation of what is being done to people. Such considerations do not detract from, indeed they reinforce, the recognition, in an assessment of legality, that those entrusted with such responsibility be given the freedom of lawful decision-making required by Parliament.

66    While the ultimate manner in which the Tribunal has expressed the evaluation of the competing factors may be perfunctory, I am not satisfied that the choice of words to express the conclusions of that process provide a sound evidentiary basis for inferring a lack of intellectual engagement or a mechanical approach in the context of the other parts of the reasons which provide firm indications that the Tribunal genuinely engaged in the statutory task at hand. The Tribunal ascribed relative weight to factors throughout its reasons. That is a clear indication that the Tribunal was engaging in a balancing exercise and not a mechanical or list-based exercise. In my view, while the language used in places to express the reasons could have provided greater explanation, it is not case which falls on the ‘wrong side of the line’: Lafu v Minister for Immigration and Citizenship [2009] FCAFC 140 at [49]-[50]. The manner in which the Tribunal has identified and evaluated the ‘other considerations’ and primary considerations is exposed in the Tribunal’s reasons. The reasons are sufficient to reveal that there was a process of genuine intellectual engagement in the evaluation and weighing of the various factors.

Conclusion

67    There will be an order granting the applicant an extension of time to make an application, but the application will be dismissed with costs.

Associate:

Dated:    23 March 2023