Federal Court of Australia

PYCS v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 563

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed with costs.

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

REASONS FOR JUDGMENT

STEWART J:

Introduction

1    This is an application under s 476A of the Migration Act 1958 (Cth) for the judicial review of a decision of the Administrative Appeals Tribunal. The Tribunal’s decision affirmed a decision of a delegate of the relevant Minister under s 501CA(4) not to revoke the otherwise mandatory cancellation of the applicant’s visa under s 501(3A).

Background

2    The applicant was born in Iran in 1992 after his parents had fled to Iran from Afghanistan. The applicant’s father died in Iran when the applicant was approximately 11 years of age, whereafter the applicant left school and commenced work. The applicant’s life has been marked by profound deprivation, disadvantage and trauma.

3    In May 2008, the applicant arrived in Australia with his mother and sister as the holder of an offshore humanitarian visa. He was subsequently granted a class of resident return visa.

4    In December 2020, the applicant was convicted in the Local Court of New South Wales of a number of offences relating to his possession and use at that time of the narcotic commonly referred to as “ice”. He was sentenced to an aggregate of 12 months’ imprisonment with a non-parole period of seven months. It is common ground that in light of the passage and commencement of the Migration Amendment (Aggregate Sentences) Act 2023 (Cth), that aggregate sentence qualifies as a sentence of imprisonment of 12 months and is hence a “substantial criminal record” as referred to in s 501(7)(c) of the Migration Act, which in turn constitutes a failure of the “character test” in s 501(6). That led to the mandatory cancellation under s 501(3A).

The Tribunal’s decision

5    As it was obliged to, the Tribunal considered the question of whether there was “another reason” to revoke the cancellation of the applicant’s visa with reference to Direction 90, being a direction by the Minister under s 499 to guide decision-makers making decisions under s 501 or 501CA. The Direction relevantly identifies a number of “primary” considerations and “other” considerations that the Tribunal was required to take account of in arriving at its decision.

6    One of the primary considerations is described as “the best interests of minor children in Australia”. Section 8.3(1) of Direction 90 provides that decision-makers must make a determination about whether non-revocation is, or is not, in the best interests of a child affected by the decision. The consideration only applies if the child is, or would be, under 18 years of age at the time when a decision not to revoke the mandatory cancellation of the visa is expected to be made (s 8.3(2)).

7    Importantly for the present case, s 8.3(3) of Direction 90 provides that if there are two or more relevant children, “the best interests of each child should be given individual consideration to the extent that their interests may differ.”

8    With reference to the parties’ statements of facts, issues and contentions before it, the Tribunal identified four minor children in Australia whose interests could be affected if the visa cancellation was not revoked.

9    First, the applicant’s biological son, AZ, was considered. The Tribunal identified that the applicant and AZ’s mother were separated before AZ was born, and that the applicant has had no contact with AZ. The applicant said in evidence that AZ “should be around 11” and that he planned to look for him and be in contact with him if he could. The Tribunal found that deportation would deny the applicant the chance of developing a relationship with AZ.

10    Secondly, the applicant’s nephew, MX, was considered. MX is the son of the applicant’s sister, Ms ZX. The Tribunal found that the applicant has maintained contact with MX through his mother and has been in regular electronic contact with him while he has been in prison and immigration detention. Significant to the applicant’s case in this Court, the Tribunal concluded that the applicant and MX “have a good relationship”. MX’s mother – the applicant’s sister – gave evidence that the applicant would sometimes look after MX when he was young, and that she would be happy for the applicant to have a continued relationship with MX, provided that the applicant did not revert to illicit drug use.

11    Thirdly, the son of the applicant’s niece was considered. The child is two years old. The applicant had not met him but had seen him on a video call.

12    Fourthly, the applicant’s niece, being the daughter of a different sister of the applicant, Ms FX, was considered. The child is four years old. Ms FX did not give evidence so there was no information on the applicant’s involvement in her daughter’s life. The applicant said that he had met her a few times.

13    The Tribunal then concluded as follows in relation to the primary consideration in question:

118.     The Applicant does not have a parental role in relation to any of the children, even though he is factually the parent of AZ. The Tribunal finds that the only child in this group with whom he has had a significant relationship is Ms ZX’s son, MX. It is accepted Ms ZX would wish him to have an avuncular role towards MX if the Applicant is released into the community, but she conditioned that by saying she would not permit such a relationship if PYCS resumed drug-taking. The Tribunal concludes that there is insufficient information to make definitive determinations about the effect on each of the identified minor children if PYCS was deported.

119.     The Tribunal finds that this primary consideration weighs very slightly in favour of revoking the cancellation of the visa, mainly because of the generally peripheral role PYCS has had in the lives of any of the relevant minor children in Australia. Some weight does attach, however, because although there has been no relationship between PYCS and his biological son, AZ, thus far, the removal of the Applicant from Australia would effectively prevent the prospects of one ever developing.

14    The Tribunal concluded that the other three primary considerations, namely protection of the Australian community, whether the applicant’s conduct amounted to family violence and the expectations of the Australian community, weighed relatively heavily or relatively strongly in favour of affirming the mandatory cancellation. Against that, the consideration relating to the best interests of minor children in Australia weighed only “very slightly” in favour of revocation.

15    The Tribunal also took into account other considerations, including the effect that there would likely be on the applicant’s mental health in the event that he was not deported but was held for a lengthy period in immigration detention. That was on the basis of a submission on behalf of the applicant that he would likely face a long period in detention because he could not practically be repatriated to Afghanistan.

16    Ultimately, in balancing all the considerations, the Tribunal concluded as follows:

157.     The Direction states at paragraph 7(2) that primary considerations should generally be given more weight than the other considerations. Even adding in the special consideration which weighs in favour of the Applicant, the calculus has three of the four primary considerations weighing against revocation, and the remaining primary consideration weighing in his favour but not strongly. Of the other and special considerations, all weigh in different degrees in his favour but not, in the Tribunal’s estimation, with sufficient weight to countervail the general exhortation in paragraph 7(2), noting the significance of a finding that non-refoulement obligations are present.

17    On that basis, the Tribunal affirmed the delegate’s decision not to revoke the cancellation of the applicant’s visa.

The first ground of review: the best interests of minor children

18    By his first ground of review, the applicant contends that the Tribunal’s decision was affected by jurisdictional error because it asked itself the wrong question, reasoned in an illogical or irrational way and/or relied on unwarranted assumptions. More specifically, the applicant makes several principal criticisms of the Tribunal’s reasoning in relation to considering the best interests of minor children. It is convenient to consider each in turn.

19    First, the applicant submits that although the Tribunal found (at [118]) that the applicant and MX have a significant relationship and that there is a prospect it would continue if he were released into the community, it found that there is insufficient evidence to make definitive determinations about the effect on each of the identified minor children if the applicant was deported. It is said that in making that finding, the Tribunal did not distinguish between the earlier findings it had made in relation to the applicant’s relationship with MX and the other children.

20    The applicant rightly acknowledges that, as it was put in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at 272, “the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.” Naturally, that caution has its limits as the Court has only the decision-maker’s reasons to understand just what it has done. See Ballas v Dept of Education (State of NSW) [2020] NSWCA 86; 102 NSWLR 783 at [79].

21    To my mind, the applicant’s first criticism of the Tribunal’s decision falls foul of the Wu Shan Liang caution. It is not inconsistent to find that the applicant and MX have a significant relationship, and to find that there is insufficient evidence to make a definitive determination about the effect on MX if the applicant were deported. It was open to the Tribunal to reach the same conclusion with regard to the insufficiency of evidence without distinguishing between each child, or between MX and the others.

22    This is particularly so where there was no evidence addressed to the likely effect that the applicant’s deportation would have on any of the children. There was more evidence about the applicant’s interactions with and care of MX than there was in relation to the other children, which is what enabled the findings about the relationship with MX being good and significant, but the evidence went no further. It was open to the Tribunal to find, as it did, that it could not make “definitive determinations” about the effect on each of the children, including MX, if the applicant was deported.

23    Secondly, the applicant submits that in concluding that the primary consideration in question weighs very slightly in favour of revoking the cancellation of the visa, “mainly because of the generally peripheral role PCYS has had in the lives of any of the relevant minor children in Australia”, the Tribunal treated the children “globally” without drawing a distinction between the role the applicant has had in the life of MX and his role in relation to the other children. He submits that that is inconsistent with the earlier finding that the applicant has had “a significant relationship” with MX.

24    Similarly, I do not see that it is inconsistent to conclude that the applicant has a significant relationship with MX and at the same time to conclude that he generally has a peripheral role in MX’s life; the nature of a relationship between an adult and a child and the role played by the adult in the life of the child are not necessarily coextensive. The applicant’s difficulty in this regard, which is not uncommon in cases such as this, is that for much of MX’s young life, the applicant has been either in prison or in immigration detention. That necessarily limits the role that he can have played in MX’s life, and it leaves any future role uncertain including because of his mother’s position that the applicant should play no role if his illicit drug use continues or resumes.

25    The applicant relies on s 8.3(3) of Direction 90 on this point, and in particular its requirement that the best interests of each child should be given individual consideration to the extent that their interests may differ – the applicant submits that this means that MX’s interests had to be considered separately from the other children because his interests differ. However, their individual interests had to be considered separately only “to the extent that” they differ, and the Tribunal’s view was that in relation to the role played by the applicant in the lives of the children their interests did not differ. That approach was open to the Tribunal. Also, this case is different from RGCZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 201 at [54], relied on by the applicant, because of the Tribunal’s finding that the role of the applicant in the lives of the relevant children did not relevantly differ – there was therefore no requirement to assess their interests individually.

26    Thirdly, the applicant submits that although the Tribunal found (at [119]) that the primary consideration in question weighed only “very slightly” in favour of revocation, the Tribunal then clarified the basis for that finding by adding that some weight does attach to it “because although there has been no relationship between PCYS and his biological son, AZ, thus far, the removal of the Applicant from Australia would effectively prevent the prospects of one ever developing.” That is to say, the applicant submits that what weight was ascribed to the consideration was so ascribed because of the applicant’s potential relationship with his biological son, and no significance was given to his relationship with MX notwithstanding the earlier findings that they have a good and significant relationship.

27    It is notoriously a matter for the Tribunal what weight to ascribe to any particular consideration. It is to read [119] of the Tribunal’s reasons too critically to read it as saying that the only reason why any weight attaches to the consideration is because of the possibility of a relationship developing between the applicant and his son, AZ. Reading [118] and [119] together, and fairly, it is apparent that the Tribunal took account of its finding of the relationship between the applicant and MX being “significant”, and included that in its conclusion with regard to the consideration in question ultimately weighing only “very slightly” in favour of revocation.

28    The applicant submits that it is not to be overly critical of the Tribunal to read [119] in the way he contends for because that meaning is simply based on the ordinary meaning of the words employed by the Tribunal; he says that the ordinary meaning of the words employed in [119] is that the only reason any weight was ascribed to the best interests of minor children consideration was because of the prospective relationship with AZ, the necessary implication being that no weight was given to the relationship with MX. There are two reason why I do not think that is right. First, the Tribunal expressly mentioned the relationship with MX in [118], which forms part of its consideration of and conclusions on the question of the interests of minor children, from which I would readily infer that the Tribunal took that relationship into account in the very next paragraph when ascribing weight to the consideration in question. Secondly, the Tribunal apparently did not particularly distinguish between weight described variously as “very slightly” and “some” (in [119]) and “not strong” (in [157]); that is to say, not too fine a point can be made about the Tribunal’s use of “very slightly” and “some” in [119].

29    Fourthly, the applicant submits that in finding that he does not have a parental role in relation to any of the children (at [118]), the Tribunal did not draw a distinction between the role the applicant has played in the life of MX and the nature of his relationship with the other affected children. It is said that that is notwithstanding the applicant’s unchallenged evidence that he regarded himself as a father to MX.

30    It is inherent in the impugned reasoning of the Tribunal that it did not regard the applicant to have a parental relationship with MX. Although the applicant had himself said that he regarded himself as a father to MX, MX’s mother did not characterise the relationship in that way, and there was no other evidence in support of it being so characterised. MX’s mother, in answer to the question what the applicant’s relationship is like with her two sons, said “Like uncle, like brother, like uncle, family member.” In those circumstances, the Tribunal was not bound to accept the applicant’s characterisation. It was open to the Tribunal to regard his relationship with the children, other than AZ, as “avuncular”.

31    Fifthly, the applicant submits that it was illogical for the Tribunal to limit its consideration of the best interests of the children if the applicant were deported, and not to consider their interests if the applicant remained in detention.

32    The submission arises from the fact that the Tribunal considered the effect on the applicant if he were to remain in detention for a long period of time, particularly considering that he is a citizen of Afghanistan and it was submitted that there would be some difficulty deporting him to Afghanistan. It was within the zone of discretion of the Tribunal to give consideration to that matter, which the Tribunal found weighed strongly in the applicant’s favour, ie, in favour of revocation. However, there was no obligation on the Tribunal to consider the likely effect on minor children in Australia if the applicant were to remain in immigration detention for a lengthy period of time.

33    In that regard, the requirement in Direction 90 is that the Tribunal make a determination about whether non-revocation is, or is not, in the best interests of a child “affected by the decision”. The ordinary consequence of non-revocation is deportation, as required by s 198 of the Migration Act. Indeed, the Minister is under an obligation to remove an unlawful non-citizen as soon as reasonably practicable: Al-Kateb v Godwin [2004] HCA 37; 219 CLR 562. Nevertheless, as the cases demonstrate, all too often unlawful non-citizens remain in immigration detention semi-indefinitely. Such a circumstance is, however, likely to be less detrimental to the interests of minor children in Australia than deportation because the possibility of visits and physical presence in Australia provide greater opportunity for an ongoing relationship. There was therefore nothing illogical in the Tribunal not considering the interests of the minor children if the applicant was to face a lengthy period in immigration detention rather than being deported relatively soon.

34    It is to be borne in mind that there was no finding that the applicant would likely face a lengthy period in immigration detention, and no submission was addressed to the Tribunal on the relevant minor children being differently affected by the applicant’s lengthy detention as opposed to deportation. The only submission identified by the applicant as relevant is that it was put on his behalf to the Tribunal that “while it’s true that he could call on a phone if he were to remain in detention or if he were removed to Afghanistan, it’s clearly not the same thing as being a present and hands-on older uncle, which is what he wants to be and which [MX] has also expressed a desire to see him in person.” The distinction drawn there is between detention or removal, on the one hand, and release on the other. In the absence of any clearly articulated submission, there was no obligation on the Tribunal to consider the effect on the children of the applicant’s possible lengthy detention separately from deportation.

35    Finally, the applicant submits that in its finding (at [111]) that the applicant did nothing to establish contact with his son, AZ, in the six year period since learning of his birth, the Tribunal impermissibly approached the question of AZ’s interests from the perspective of the applicant and his conduct in relation to AZ and not from the perspective of AZ. The applicant submits that this is contrary to the requirement of Direction 90, particularly as recognised in Gage v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1298 at [53] per Abraham J.

36    The finding in question is directed to the principal issue with regard to the position of AZ, namely the prospects of the applicant establishing a relationship with AZ if the cancellation of his visa is revoked. That was the principal issue because the applicant has no pre-existing relationship with AZ, never having had any contact with him. What effort the applicant has made in the past to establish contact with AZ is clearly relevant to that issue. The finding in question was made not to disadvantage AZ by identifying criticism of the applicant, or to approach matters from the perspective of the applicant, but to assess the prospects of a relationship in the future. AZ being a minor, those prospects necessarily depend on the applicant’s commitment to a relationship. The criticism of the Tribunal in this respect is therefore unfounded.

The second ground of review: the fifth child

37    By this ground, the applicant complains that the Tribunal did not consider the interests of a fifth child, being a one year old niece, the brother of the two year old son of the applicant’s niece referred to at [11] above. The applicant submits that that amounts to jurisdictional error, particularly since s 8.3(3) of Direction 90 requires that where there are two or more relevant children, the best interests of “each child” must be considered.

38    The applicant’s written evidence before the Tribunal and his formal case as expressed in his statement of facts, issues and contentions identified only four minor children in Australia. However, during the re-examination of his sister, Ms ZX, at the hearing before the Tribunal, Ms ZX identified that her niece (who is also the applicant’s niece) has an additional child. No further questions were asked of Ms ZX about the applicant’s relationship, if any, with that child and no other evidence was adduced on the point. That is hardly surprising since the applicant’s evidence had been that he had not met the child’s two year old brother, and since the applicant had not mentioned even knowing of the existence of the child it was not likely that any positive evidence on the point would emerge.

39    In closing submissions to the Tribunal, it was identified that the applicant’s niece has two children, one being one year old and the other being two years old. No submission was addressed with regard to those children individually or separately, and all that was said of them was that the applicant loves “all children” and that he is the oldest male in the family so that if he stays off drugs he can be something of a father figure to the children in the family and play a positive role in their lives.

40    In those circumstances, there was no obligation on the Tribunal to consider the interests of the fifth child, or to consider them separately from the child’s sibling. Moreover, and perhaps most pertinently, even if there was such an obligation, the Tribunal’s failure to consider the interests of the fifth child could not possibly have resulted in a different decision – the position in relation to the fifth child was weaker than any of the others and could not have shifted the dial in any meaningful way. The requirement of materiality in relation to the error would therefore not be met: Nathanson v Minister for Home Affairs [2022] HCA 26; 403 ALR 398 at [33].

Disposition

41    None of the review grounds having been made out, the application must be dismissed. There was no dispute that the costs should follow the event.

Associate:

Dated:    31 May 2023