Federal Court of Australia

Nuuamoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 587

ORDERS

THE COURT DECLARES THAT:

1.    The decision of the delegate of the first respondent dated 21 October 2020 to cancel the applicant’s Class TY Subclass 444 Special Category (Temporary) visa is affected by jurisdictional error and invalid.

THE COURT ORDERS THAT:

1.    The application for an extension of time to file to apply for judicial review of a decision of the Administrative Appeals Tribunal is allowed.

2.    The Applicant be granted leave to file and rely on the amended draft application submitted to the Court on 26 April 2022.

3.    The Administrative Appeals Tribunal be joined to these proceedings as the Second Respondent.

4.    The application is allowed.

5.    A writ of certiorari be issued to the second respondent quashing the decision of 13 September 2021.

6.    The First Respondent pay the costs of the Applicant, to be assessed in absence of agreement.

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

REASONS FOR JUDGMENT

ROFE J:

1    This is an application for an extension of time to apply for judicial review of a decision of the Administrative Appeals Tribunal, which affirmed a decision of a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, not to revoke the mandatory cancellation of the applicant’s visa. The applicant contends, in summary, that when making that decision, the Tribunal:

    failed to carry out to the statutory task required by s 501CA(4) of the Migration Act 1958 (Cth) by failing to comply with Ministerial Direction 90;

    failed to afford the applicant procedural fairness; and

    could not be satisfied that the applicant’s visa had been validly cancelled,

with the result that the decision is affected by jurisdictional error.

2    The application for an extension of time and the application for review of the Tribunal’s decision were heard together. For the reasons set out below, the application for an extension of time should be allowed. The amended application for review of the Tribunal decision should also be allowed.

BACKGROUND    

3    The applicant is a male citizen of New Zealand, having been born there in 1983. He has lived in Australia since arriving in 1997, when he was aged 14. The applicant has three children, who I will refer to as L, T and M. The children’s mother, who I will refer to as Ms ES, has also been the partner of the applicant at all relevant times; although Court orders, incarceration and detention have at times prevented them from living together.

4    Relevantly to this application, the applicant served his latest term of imprisonment from 8 August 2020 until he was processed and released on 21 October 2020.

5    The applicant held a Class TY Subclass 444 Special Category (Temporary) visa until, on 21 October 2020, it was cancelled by operation of law under the mandatory cancellation provisions in s 501(3A) of the Act (cancellation decision). That section provides that a visa must be cancelled if the visa holder:

(a)    fails to pass the “character test” set out in s 501(6)(a) of the Act on the basis set out in s 501(7)(c) (sentence of a term of imprisonment of 12 months or more); and

(b)    the visa holder is serving a sentence of imprisonment on a full-time basis in a custodial institution.

6    In the visa cancellation decision record, the delegate recorded the following information as the basis on which the applicant met the criteria for mandatory visa cancellation:

Pursuant to section 501(3A)(a)(i) I have considered whether the visa holder does not pass the character test because of the operation of section s501(6)(a) on the basis of:

…

Section 501(7)(c): the person has been sentenced to a term of imprisonment of 12 months or more…

    …

Details

Date convicted: 10 April 2002

Conviction: Recklessly cause injury and Reckless conduct endanger serious injury

Sentence: 18 months youth detention

…

On the basis of the above information, I am satisfied that the visa holder does not pass the character test because of the operation of section 501(6)(a), on the basis of paragraph (7)(c) and therefore the requirements of section 501(3A)(a)(i) are met.

…

Pursuant to section 501(3A)(b) I have considered whether the visa holder is:

•    serving a sentence of imprisonment: YES

…

Details

Custodial institution: Post Phillip Prison

Offence: Theft of a motor vehicle, Prohibited person possess firearm and Retention of stolen goods

Source of information: Notice of Order Made for proceedings on 28 September 2020 in the Magistrates Court of Victoria at Broadmeadows issued on 20 October 2020 and VIC Prisoner Indent and Sentence Remand History Report SCWA.QualityAssurance@justice.vic.gov.au.

Date and time: 02 October 2020 at 13:26 AEST

Source of information attached to decision record: CLD2020/35104675 and CLD2020/33594800

On the basis of the above, I am satisfied that section 501(3A)(b) applies to the visa holder.

7    Under the heading “MANDATORY CANCELLATION DECISION” the visa cancellation decision record stated:

☒ The person continues to be held in a custodial institution on a full time basis (if decision is taking place on a date other than the date location was last confirmed)

Prison: Port Phillip Prison

Date & Time: 21 October 2020 at 09:06 AM AEST

Email: SCWA.QualityAssurance@justice.vic.gov.au

Because I am satisfied that the visa holder meets the requirements of sections 501(3A)(a) and (b), I am satisfied that the visa holder is liable for mandatory cancellation under section 501(3A) of the Migration Act 1958 and therefore I must cancel their Class TY Subclass 444 – Special Category (Temporary) visa granted on 13 January 1999.

Position Number: 60011840 Officer Signature: …

Date & time: 21 October 2020 at 10:58 AM AEST

(Emphasis added.)

8    Subsection 501(CA)(3) of the Act requires the Minister to give a person whose visa has been mandatorily cancelled a written notice, as soon as practicable after making the decision, that sets out the reasons for decision. The Notice of visa cancellation dated 21 October 2020, stated, under the heading “Imprisonment on a full-time basis”:

Based on the information available, the decision maker was also satisfied that, at the time of the decision, you were serving a sentence of imprisonment, on a full-time basis, in a custodial institution for an offence against a law of the Commonwealth, a State or a Territory.

On 28 September 2020, you were further convicted as Mr Mafoe NUUAMOA, DOB: 26 August 1986, of Theft of a motor vehicle, Prohibited person possess a firearm and Dishonestly undertake in retention stolen goods in the Magistrates Court of Victoria at Broadmeadows for which you were sentence to an aggregate term of four months imprisonment which you are currently serving.

In particular, regard was had to the Notice of Order Made for proceedings on 28 September 2020 in the Magistrates Court of Victoria at Broadmeadows issued on 20 October 2020 and the File Note dated 21 October 2020.

(Emphasis added.)

9    The notice must also invite the former visa holder to make representations to the Minister as to why the decision should be revoked under s 501CA(4) of the Act. The Minister may revoke visa cancellation if representations are made in accordance with the invitation and the Minister is satisfied either that the person passes the character test, or that there is another reason why the visa cancellation decision should be revoked.

10    Through his solicitors, the applicant made a series of representations to the Minister dated 17 November 2020, 30 March 2021 and 7 June 2021, requesting revocation of the cancellation decision (applicant’s representations).

11    On 18 June 2021, a delegate made a decision under s 501CA(4) not to revoke visa cancellation (non-revocation decision).

12    On 28 June 2021, the applicant sought review by the Tribunal of the delegate’s decision not to revoke mandatory visa cancellation.

13    On 15 July 2021, the Tribunal issued a Summons to Produce Documents to the Broadmeadows Magistrates’ Court. The summonsed material thus obtained is in evidence before the Court, as it was before the Tribunal. The summonsed material includes certified extracts of Court orders, convictions and sentences; and appends records from the Victorian Child Protection Service.

14    The summonsed material includes the following:

    On 10 September 2018, a Family Violence Intervention Interim Order, ordering that the applicant must not commit family violence against protected persons, and naming as the protected persons Ms ES, and the children L, T and M.

    On 7 November 2018, a Family Violence Intervention Final Order, in the same terms as the interim order.

15    Both orders contain the following citation:

THE COURT ORDERS THAT THE RESPONDENT MUST NOT:

Commit family violence against the protected person(s).

Note: The Family Violence Protection Act 2008 defines family violence as behaviour by a person towards a family member of that person that is physically or sexually abusive, emotionally or psychologically abusive, economically abusive, threatening, coercive, or in any other way controls or dominates a family member and causes that family member to feel fear for the safety or wellbeing of that family member or another person.

Family violence includes behaviour that causes a child to hear or witness or otherwise be exposed to the effects of these behaviours.

…

Contact or communicate with protected person by any means.

Approach or remain within 5 metres of a protected person.

Go to or remain within 200 metres of [address] or any other place where a protected person lives, works or attends school/childcare.

16    The summonsed documents also include:

    A conviction record dated 10 April 2019 for Contra Fam Violence Interim Intervention Order, recorded as having occurred on 30 September 2018;

    A charge record dated 7 February 2019 for Contravene Fam Violence Intervention Order, recorded as having occurred on 13 December 2018;

    A conviction record dated 27 November 2019 for Persist Contra Family Violence NTC/Order, recorded as having occurred from 24 June to 31 July 2019.

17    On 6 and 7 September 2021, the Tribunal conducted its hearing. The applicant was self-represented in the proceedings before the Tribunal. On 13 September 2021, the Tribunal affirmed the delegate’s decision. I shall refer to the Tribunal’s decision record as D.

PRELIMINARY MATTERS

Application for Extension of Time

18    Section 477A(1) of the Act provides that an application to the Federal Court seeking a remedy in the Court’s original jurisdiction in relation to a migration decision must be made within 35 days of the date of the challenged decision. Under s 477A(2), this Court may extend time if satisfied that “it is necessary in the interests of the administration of justice”. The Tribunal’s decision was made on 13 September 2021, and the application to this Court was filed on 26 October 2021. The applicant therefore requires an extension of time of eight days. At the hearing, counsel for the respondent indicated that the respondent neither consented to nor opposed the extension of time. The respondent’s submissions do not otherwise address the matter of the extension of time.

19    The discretion conferred on this Court to extend time is broad: Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28 per Gordon, Edelman and Steward JJ at [32]. It has as its purpose the “eliminat[ion] of the injustice a prospective [applicant] might suffer by reason of the imposition of a rigid time limit within which an action was to be commenced”: Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 553; Sola Optical Australia Pty Ltd v Mills (1987) 163 CLR 628 at 635. In Katoa, the majority found at [12] that:

On its face, the power conferred by s 477A(2) is unfettered except by the requirements of a written application in conformity with s 477A(2)(a) and the Court's satisfaction that an order extending time “is necessary in the interests of the administration of justice”. Other than the “interests of the administration of justice”, there are no mandatory relevant considerations, whether express or to be implied from the “subject-matter, scope and purpose” of the Act. The focus of s 477A(2)(b) is not on the interests of the applicant, but the broader interests of the administration of justice. So framed, the paragraph allows the Court to look at a myriad of facts and circumstances, including the length of the applicant's delay, reasons for the delay, prejudice to the respondent, prejudice to third parties and the merits of the underlying application. The level of satisfaction for the Court to reach is not low: the Court must be satisfied not just that an extension of time is desirable, but that it is needed in the interests of the administration of justice.

Reason for delay

20    In the affidavit filed in support of the application for an extension of time, the applicant attests to having attempted to send his originating paperwork to this Court on 17 October 2021, one day prior to the expiry of the 35 day period for such an application to be made, by way of email to vicreg@fedcourt.gove.au. The correct relevant email address was vicreg@fedcourt.gov.au. Due to that typographical error, the Court did not receive the applicant’s originating paperwork until it was properly filed on 26 October 2021.

Length of Delay

21    The delay in filing this application is not extensive, and followed an attempt to file an application within time that was thwarted by typographical error.

Prejudice to the Respondent

22    The respondent has not raised any prejudice to either the respondent or third parties that would arise from allowing an extension of time.

23    I grant the eight day extension sought by the applicant.

Leave to Amend

24    The application for an extension of time was filed together with a draft application for review of a Tribunal decision. On 26 April 2022, the applicant submitted an amended draft application for review of the Tribunal decision. Rule 8.21(1)(g) of the Federal Court Rules 2011 allows a party to apply to the Court to amend an originating application in order to add or substitute a new claim for relief, or a new foundation in law for a claim of relief, that arises out of the same facts or substantially the same facts as those already pleaded to support an existing claim. The power of the Court to grant or refuse leave to amend must be exercised in a way that accords with the Court's overarching purpose to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible: Australian Securities and Investments Commission v Cassimatis (No 6) [2016] FCA 622 at [8] per Edelman J.

25    The proposed amendments comprise changes to the relief sought and the grounds on which the Tribunal decision is said to be infected with jurisdictional error. I am satisfied that the amendments are based on the same facts as the original draft application. I also consider it to be relevant that the amended draft application was filed after the appointment in this matter of a pro bono representative for the applicant. The amended draft application expresses the relief sought and the grounds for it in a manner which facilitates the just resolution of this dispute as efficiently as possible. The respondent has not expressed any opposition to the grant of leave for the amended draft application, and has addressed the substance of the amended draft application in submissions. For these reasons, the applicant has leave to file and rely on the amended draft application dated 26 October 2021 for review of the Tribunal decision.

26    The amended draft application lists the Tribunal as a second respondent, as is appropriate in an application of this nature. The Minister does not oppose the joinder of the Tribunal to these proceedings. I will so order.

Ministerial Direction 90

27    In part, this application concerns the correct application of Direction 90 to the applicant’s circumstances. Under s 499(1) of the Act, the Minister has the power to make written directions for decision-makers who have been delegated powers under s 501CA(4) of the Act. At the time of the cancellation decision, Ministerial Direction 79 was in effect. By the time of the delegate decision not to revoke visa cancellation, and the Tribunal decision, Direction 79 had been replaced by Direction 90, with effect from 15 April 2021. Direction 90 set out mandatory considerations that decision-makers “must take into account…where relevant to the decision”. Section 5.1(4) of Direction 90 provided that its purpose was to “guide decision-makers in performing functions or exercising powers under section 501 and 501CA of the Act”. Section 5.2(5) provided that:

Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.

28    Direction 90 set out “Primary” and “Other” considerations for decision-makers as follows:

8. Primary Considerations

8.1. Protection of the Australian Community

8.1.1. The nature and seriousness of the conduct

8.1.2. The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct

8.2. Family violence committed by the non-citizen

8.3. Best interests of minor children in Australia affected by the decision

8.4. Expectations of the Australian community

9. Other Considerations

9.1. International non-refoulement obligations

9.2. Extent of impediments if removed

9.3. Impact on victims

9.4. Links to the Australian community

9.5. Impact on Australian business interests

29    In subsection 8.1.1. Nature and seriousness of the conduct, Direction 90 provided as follows:

(1)     In considering the nature and seriousness of the non-citizen's criminal offending or other conduct to date, decision-makers must have regard to the following:

(a)     without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:

(i)     violent and/or sexual crimes;

(ii)     crimes of a violent nature against women or children, regardless of the sentence imposed;

(iii)     acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;

30    Unlike its predecessor, Direction 90 included the commission of family violence as a “Primary Consideration”. The relevant section of the Direction provided as follows:

8.2. Family violence committed by the non-citizen

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

(2)         This consideration is relevant in circumstances where:

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

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

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

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

(b)     The cumulative effect of repeated acts of family violence;

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

(i)     The extent to which the person accepts responsibility for their family violence related conduct;

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

(iii)     Efforts to address factors which contributed to their conduct; and

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

31    The “Interpretation” section of Direction 90 provided the following definition:

family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful.

Examples of behaviour that may constitute family violence include:

a)    an assault; or

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

c)    stalking; or

d)    repeated derogatory taunts; or

e)    intentionally damaging or destroying property; or

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

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

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

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

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

32    Section 8.3 of Direction 90 is also relevant to the grounds of review. It set out factors for consideration in determining the best interests of children:

8.3. Best interests of minor children in Australia affected by the decision

(1)     Decision-makers must make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is, or is not, in the best interests of a child affected by the decision.

(2)     This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to refuse or cancel the visa, or to not revoke the mandatory cancellation of the visa, is expected to be made.

(3)     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.

(4)     In considering the best interests of the child, the following factors must be considered where relevant:

(a)     the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);

(b)     the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;

(c)     the impact of the non-citizen's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;

(d)     the likely effect that any separation from the non-citizen would have on the child, taking into account the child's or non-citizen's ability to maintain contact in other ways;

(e)     whether there are other persons who already fulfil a parental role in relation to the child;

(f)     any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);

(g)     evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;

(h)     evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.

Request for Revocation

33    The applicant’s representations dated 17 November 2020 and 30 March 2021 requested revocation of the visa cancellation decision by reference to the considerations set out in Direction 79. The applicant’s representations dated 7 June 2021 addressed the considerations set out in Direction 90. The representations emphasised the importance of the applicant’s presence and participation in family life; his extensive network of support in Australia from friends and family; his remorse for prior conduct, and that this had all occurred under the influence of drugs, alcohol, and the “wrong type of company”; the trigger for his relapse into substance abuse having been the death of loved ones; his willingness to undergo treatment and rehabilitation after release from detention; and the offers of employment from family and friends. The submissions pointed to the positive and significant role the applicant had played in the lives of his children since their birth. Among the documents appended to the applicant’s representations was a letter of support from his daughter, L.

34    In relation to the specific factors in Direction 90, the representations contended, in summary, that:

    the offences for which the applicant had been convicted did not relate to family violence, such that Consideration 8.2 of Direction 90 was not relevant;

    the nature of the applicant’s offending and his low-risk to the Australian community in the future should be given some weight in favour of revocation of the cancellation;

    the best interests of minor children in Australia should be given significant weight in favour of revocation of the cancellation;

    the expectations of the Australian community should be given some weight against revocation of the cancellation;

    the strength, nature, and duration or ties to Australia and the effects of visa cancellation should be given significant weight in favour of revocation of the cancellation; and

    the extent of impediments to resettlement in New Zealand if removed should be given significant weight in favour of revocation of the cancellation.

Non-Revocation Decision

35    The delegate’s non-revocation decision record summarises what the delegate describes as the applicant’s “offences committed in a domestic setting against a female intimate partner”, including convictions for contravene family violence interim intervention order and persist contra family violence NTC/order. The delegate then finds:

34.     It is…submitted that Mr NUUAMOA has not engaged in any familial violence or violent crimes against women or children. In relation to the Apprehended Violence Order (AVO), which was breached, it is asserted that this occurred when Mr NUUAMOA was meeting up with his wife to reconcile as the couple are ‘deeply’ in love with one another and wanted things to work out.

…

36.     …[C]ontrary to the assertions made on his behalf, I find that Mr NUUAMOA’s criminal conduct involves acts of family violence against a woman and is very serious regardless of whether a conviction or disposition has been imposed. In considering the nature and seriousness of the conduct I am not confined to considering criminal behaviour that resulted in a finding of guilt.

…

95.     … I find that Mr NUUAMOA’s contravention of protection orders designed to protect family members falls within the inclusive definition of what constitutes family violence in the Direction, as do the other acts of uncharged family violence set out above in the Victoria Police Preliminary Briefs.

…

104.     Having considered the above information, including Mr NUUAMOA’s breaches of family violence orders and Mr NUUAMOA’s violent and abusive conduct against his partner in the presence of their children, I find that Mr NUUAMOA’s conduct that encompasses family violence should be viewed very seriously.

36    In relation to the best interests of the children, the delegate’s findings include the following:

25.    … Ms [ES] and all three children were affected family members listed on the Family Violence Interim Intervention Order.

…

113.     I note in her letter of support, his eldest daughter [L], speaks fondly of her father, expressing her deep concerns about the possibility of her father being deported, and stating that her heart would be torn apart if that occurred. She pleads for him to remain in Australia so that they can celebrate significant milestones together as a family. [L] states in her letter that he is not a threat to the Australian community, proclaiming that her father has a lot to offer to her and the family if he remains in Australia.

…

121.     However, the extent to which Mr NUUAMOA might play a positive role in his children’s lives very much hinges on his capacity to abstain from drugs and criminal offending, including making meaningful changes in his life. In circumstances where there has been a history of family violence, and DHHS involvement, I have placed lesser weight on this consideration.

37    Under the heading “Factors contributing to past conduct”, the delegate records the applicant’s representations that all offending, including “all family violence related offending”, occurred under the influence of drugs and alcohol. The delegate notes the applicant’s prolonged claimed abstention from alcohol, and his representations that his relapse into drug use was due to bereavement. The delegate also notes the Court-ordered behavioural, drug and alcohol and anger management courses undertaken by the applicant.

38    In relation to the applicant’s rehabilitation plans, the delegate finds that although the applicant “has a mental health plan in place with Dr Wirasat Baig of Hillcrest Health Centre”, he has not otherwise identified “rehabilitive [sic] options or programs in the community beyond engaging with medical supports to address his mental health”.

39    In relation to the risk of future offending, the delegate notes the remedial programs that never eventuated due to changes to custody arrangements. The delegate then finds:

83.     I am not satisfied that Mr NUUAMOA appreciates the seriousness of his offending against his partner, but has sought to downplay the seriousness by shifting some blame to his partner for provoking him. I also have significant concerns in relation to representations that Mr NUUAMOA has not engaged in acts of family violence, and that he was merely trying to reconcile with his wife. I find that Mr NUUAMOA’s denial of acts of family violence represents a lack of insight and this increases the risk of reoffending. I consider that there is no certainty that Mr NUUAMOA will not encounter relationship issues into the future. While I accept that Mr NUUAMOA’s offences occurred during a period of very difficult personal circumstances, those circumstances have the potential to re-emerge at some point in the future when he is in the community away from a supervised environment.

40    The delegate concludes, in summary, that:

    the best interests of the applicant’s children and his nieces and nephews weighs heavily in favour of revocation;

    impediments to resettlement in New Zealand weigh moderately in favour of revocation; and

    the strength and nature of the applicant’s ties to Australia weigh in favour of revocation; however

    consideration of the protection and expectations of the Australian community, and of family violence, outweighs those factors that favour revocation having “given significant weight to the very serious nature of the crimes committed of a violent nature, in some instances committed against his partner in a domestic setting”.

41    On that basis, the delegate:

(a)    was not satisfied that the applicant passed the character test, by reason of the operation of s 501(6)(a) and (7)(c) of the Act;

(b)    was satisfied that the applicant had made representations in accordance with the invitation given under s 501CA(3)(b); and

(c)    was not satisfied that there was “another reason” why he should exercise the power conferred on him to revoke the cancellation decision.

TRIBUNAL DECISION

42    The Tribunal’s reasons begin with an assessment of whether the applicant fails the character test under s 501(3A)(a) of the Act through the operation of s 501(6). The Tribunal summarises the applicant’s relevant convictions and terms of imprisonment (D[17]–[18]). The Tribunal finds that the applicant has a substantial criminal record under s 501(7)(c), being sentences comprising over 400 days, and that therefore the first limb required for mandatory cancellation of a visa was satisfied (at D[19]).

43    Before the Tribunal considers whether there is “another reason” the cancellation decision should be revoked, the Tribunal examines whether the applicant was serving a sentence of imprisonment at the time of the cancellation decision, so as to satisfy the second limb required for mandatory visa cancellation:

22.     Mr Nuuamoa’s evidence was that on 21 October 2020, which is the date he completed the prison sentence imposed by the Court, he had expected to be released. He was processed by the corrections authorities at the prison and readied to leave. He said he was then asked to wait in a cell. The Applicant said that officers of the Australian Border Force (‘ABF’) then arrived. He was given a letter notifying him that his visa had been cancelled. These ABF officers then took him into immigration detention.

23.     The Tribunal was concerned on the evidence that Mr Nuuamoa may have, in fact, completed his prison sentence when the decision to cancel his visa was made and the notice (dated 21 October 2020) was served, which would mean that section 501(3A)(b) was not satisfied. The advice from Corrections Victoria was that he completed his most recent period in full-time prison custody on 21 October 2020. After this query was raised, the Respondent offered to provide a written submission on this question by the end of 8 September 2021, which was done.

24.     That written submission of the Respondent relevantly said:

At 9.06am on 21 October 2021, a Department officer contacted Port Phillip Prison and confirmed the applicant was currently serving a prison sentence. (G Documents, page 321 (G321)).

25.     … It is not plausible that the email making the inquiry could have been sent, that the Victorian authorities could have checked their prisoner records and responded, and that the one page file note could have been written – all within one minute. It also appears not to have been the prison where Mr Nuuamoa had been serving his sentence that was emailed but an administrative area of the Victorian Justice Department.

26.    …The evidence of the Applicant that he had been processed in the usual manner as he had completed his sentence is plausible, as is his evidence that, after completion of this release procedure, he was then asked to go and wait in a cell.

(Emphasis in original.)

44    The Tribunal then summarises the law as understood at the time by reference to the decisions in PYDZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1050 and XJLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 619. In those matters, this Court found that the validity of a mandatory cancellation decision under s 501(3A) of the Act was not a condition precedent to the Tribunal’s exercise of its powers under s 501CA(4) whether to revoke that decision. Accordingly, the law at the time was that the Tribunal could exercise its powers to revoke or affirm a mandatory cancellation decision under s 501CA(4) of the Act notwithstanding any purported invalidity of that decision. On that basis, the Tribunal found that “notwithstanding doubt that I have about the validity of the visa cancellation, I find that does not affect my duty to consider the application Mr Nuuamoa has brought to the Tribunal” (at D[30]).

45    The Tribunal then sets out the applicant’s offending history. Relevant to the grounds of review, in addition to violence and criminal damage, burglary and theft, drug and driving offences, the Tribunal notes:

    the February 2019 charge for Contravene Family Violence Intervention Order (at D[43]); and

    the April 2019 conviction for Contravene Family Violence Intervention Interim Order (at D[44]).

46    In D[49]–[90], the Tribunal summarised the oral evidence given during the hearing before it by the applicant, his partner Ms ES, and his sister Ms AN. Relevant sections are set out below:

Mr Nuuamoa

59.     Mr Nuuamoa agreed that Child Protection authorities became involved with his family in 2016 because he had a fight with Ms ES. He said: “She wanted to kick me out. We were fighting over the kids. We had a scuffle.”

60.     Mr Nuuamoa agreed that he attempted to strangle Ms ES in the scuffle and that their oldest daughter tried to intervene and “I shoved her”.

61.     The applicant could not remember whether Ms ES obtained an Interim Family Violence Order but agreed that it was in place for around 12 months and it prohibited him from visiting the family home. He said he stayed with his parents at this time.

…

63.     When asked about a 2018 incident where he visited the family home and Ms ES would not allow him to come in, but did allow him to stay in the garage, Mr Nuuamoa said he remembered the events. The next day they took the oldest daughter to school together, with the younger two children in the car. Mr Nuuamoa said: “We had an argument. I hadn’t slept for days. She pulled over. I grabbed my son and shoved her head and hit the car.”

64.     Mr Nuuamoa agreed that on this occasion he punched a window of the car, causing it to smash and that the other two children were in the car at the time (the eldest child having been dropped at her school). The Applicant agreed that an Interim Family Violence Order was taken out a few days later and that he was arrested when he breached its conditions and was caught outside a friend’s house talking to Ms ES.

65.     [The Minister’s representative] read to the Tribunal a report of the Applicant visiting the family home in breach of the interim intervention order and Ms ES talking to him but refusing to open the locked security door. A short time later Ms ES told police she heard bins being moved and she was worried Mr Nuuamoa might be attempting to use the bin to gain access to the property, so she dialled ‘000’. The police attended but were unable to locate Mr Nuuamoa. Several days later the Applicant was arrested and made full admissions to the police about breaching the order.

66.     Mr Nuuamoa agreed that this led to the imposition of a full Family Violence Intervention Order (‘IVO’).

…

73.     Mr Nuuamoa said that if allowed to stay in Australia he would move in with his sister, Ms AN, who has offered him work. He said the IVO still applies and he would have to undertake whatever is required by Child Protection before he could reside with the children again.

…

Ms ES

82.     Ms ES said Mr Nuuamoa first started using ‘ice’ around 2010 but not ‘as severely’ as he started to in 2016. She said that she first experienced acts of family violence from the Applicant in 2010 but at that time they were brought about through intoxication, rather than drug-taking.

83.     She said there were no instances of family violence when Mr Nuuamoa was not affected by drugs and alcohol.

84.     Ms ES said it was in 2016 that Child Protection first became involved with the family after an incident where Mr Nuuamoa ‘tried to strangle me’. She said their oldest daughter intervened because she was trying to defend her mother.

85.     Ms ES was asked about the 2018 incident in the car and said both her younger children witnessed it and it was a ‘really bad altercation’. She said it has had a lasting effect on their oldest daughter because ‘violence has taken over the good memories.’

86.     Ms ES said she would not have concerns with Mr Nuuamoa spending time with their children now...

87.     She said that the orders still adhering mean that if the Applicant was released into the community, he cannot live with her or the children. Ms ES thought he would only be able to see the children if another person was present, and might have to submit to random urine tests, as she had to before the custody of the children was restored to her.

88.     Ms ES said that if Mr Nuuamoa relapsed into taking drugs, he would have no contact with the children or with her, and that her support for him was conditional on him being willing to engage with treatment.

89.     Contrary to the evidence of Mr Nuuamoa, Ms ES said she had spoken to the Applicant about what would happen if his visa was not restored. She told the Tribunal that it was up to the children if they wanted to relocate to New Zealand in that eventuality. Ms ES said she would not be willing to go to New Zealand until Mr Nuuamoa could provide evidence to her of a safe and settled household, and he could provide for them.

90.     Ms ES said that if they did not relocate and Mr Nuuamoa was back in New Zealand, she would ‘definitely’ take the children to visit him. She said in answer to direct questions from the Tribunal that she would put the interests of the children first. Ms ES said: “If he keeps away from friends, he can be a better person. He has been clean in prison and detention and has decided not to go back.”

47    The Tribunal then turns to consider the factors in Direction 90. In relation to the seriousness of offending, the Tribunal finds that “it is clear to me that the Applicant has been involved in violent offending, including causing serious injuries to complete strangers” and “significant property theft”, with “some trend of increased seriousness” (D[105]–[107]). In relation to the risk to the Australian community from further offences, the Tribunal finds:

110.     If the Applicant committed further acts of random violence, there would be a clear risk to innocent members of the community going about their daily lives. Mr Nuuamoa said that he has grappled with, and submits he has largely overcome, his alcohol addiction. He did say he still will when in the community consume some alcohol. It would seem to me that he has a specific and serious problem with anger management, as his sister Ms AN acknowledged. I was not convinced that he has a sure plan to tackle that in the community, though he did say he intends to seek out ‘counselling.’

48    The Tribunal acknowledges (at D[111]) that the applicant has undertaken vocational and trade, drug and alcohol education, anger management and other personal development courses. The Tribunal goes on to say:

111.     …This shows a willingness to engage, albeit these are very short courses available in detention. Balancing that is evidence that he failed to address his drug and alcohol addictions under [Community Control Orders] in 2019 and 2020 and told the Department of Health and Community Services (SGD, p 664) that when he exited remand he had determined that he would remain ‘clean’ but then caught up with friends to celebrate his release and lapsed again into taking ‘ice’.

112.    In the hearing, the Applicant asserted that he considers himself ‘rehabilitated’ and said that he had deleted the numbers of certain of his friends from his mobile phone. This does imply to me that he considers, probably accurately, that he is vulnerable to reverting to criminal behaviour should he encounter these associates again. …

113.     I believe Mr Nuuamoa has voiced good intentions, but not that he has set out an established plan to deal with the challenges that face him. His sister has offered him employment and accommodation, which is a positive and protective element, but I do not have sufficient information before me of the steps that the Applicant himself has mapped out. He said in his written statement… that he would seek relationship counselling with a psychologist, which shows a willingness to address the nature of his relationship with Ms ES and their children, but that does not indicate to me an appreciation of the other parts of his offending history, and how to address his vulnerabilities to re-offend.

114.     One of the problems that the Applicant admitted was his addiction to methamphetamine. He told the Tribunal of a history of taking ‘ice’ from 2010 which only ceased on him entering prison in 2019. …

115.     On the evidence before me, I consider there remains a real risk that Mr Nuuamoa would reoffend, either in a domestic situation, in the wider community, or both. It is a real risk that I am satisfied is an unacceptable one. This primary consideration therefore weighs relatively strongly against revoking the mandatory cancellation of the visa.

49    In D[117]–[118], the Tribunal summarises the requirements of Direction 90 in relation to family violence before setting out the following:

119.     As mentioned above, Mr Nuuamoa has been convicted by the Courts of breaching IVOs, a fact he freely admitted in the hearing. The Tribunal also has regard for summonsed documents from the Child Protection Subpoena Unit of the Victorian Department of Families, Fairness and Housing which records three reports in the period 2016-17 relating to the Applicant perpetrating family violence towards Ms ES and regularly using methamphetamine. The document relevantly states, with appropriate redactions:

On 07 September 2019, Child Protection received a report of a significant family violence incident between Mr Nuuamoa and [Ms ES] which the children were exposed to and attempted to intervene. During the incident Mr Nuuamoa punched and broke the car window the children were sitting in and attempted to flee with [the child M]….

A full exclusion Intervention Order was already in place listing the father as the respondent and the children and the mother as the protected persons. Throughout the Protective Intervention the father continued to have contact with the children and the parents continued to use illicit substances.

120.     In a separate report from Child Protection it states, in respect of previous advice Ms ES had given to them:

The mother disclosed to CP at the time that the father is a drug user, and there is a pattern of significant physical assaults (choking, kicking, punching, stalking and threats to kill) from the father when he is “coming down” from ice. The children were reported to have witnessed ongoing family violence, previous to a very significant incident on 12/04/2016 where the father was choking the mother in front of the children. [The child L], who was just 11 at the time, tried to physically intervene to protect her mother, and she was assaulted too. The father then locked himself and [the child M] in the garage for half an hour. At the point of CP closing involvement, the children were having no contact [with the father] and the mother stated she was not intending to reunite with the father.

…

With regards [sic] to the father’s drug use, it is demonstrated during previous protective involvement that his drug use is associated with a high level of violence, so continued drug use whilst having contact with the children raises significant concerns.

121.     The Tribunal considers that the evidence in the criminal history check and the summonsed documents from Child Protection indicate that there has been a history of family violence, with some cumulative effect. It is notable that Ms ES told Child Protection of a ‘pattern of significant physical assaults’ prior to the 2016 incident which was the subject of a report. ... Mr Nuuamoa did continue to breach orders that he knew were in place to protect his partner and children.

122.     I am not convinced that the Applicant demonstrated to me a full appreciation of the effect his actions may have had on the children; he tended in his evidence to link all this conduct to his ‘ice’ addition. While there clearly was a strong link, it does not excuse his conduct in physically assaulting Ms ES and – whether advertently or not – his young daughter L, when she tried to protect her mother. It is also clear from Ms ES’s evidence above that family violence incidents had occurred from around 2010, but she dated his more severe addiction to ‘ice’ from 2016, when the first family violence incident came to the notice of Child Protection. Ms ES suggested the earlier family violence was precipitated by Mr Nuuamoa’s drinking, not his drug-taking.

123.     Although there are protective measures to separate the Applicant from Ms ES and the children should he be released to the community, there is a pattern of him ignoring such orders before. On the evidence before me, I am satisfied that this primary consideration weighs strongly against revoking the mandatory cancellation of the visa.

50    In relation to the best interests of children, the Tribunal finds as follows:

126.     Mr Nuuamoa confirmed in his evidence at the hearing that in one family violence incident where he attempted to strangle Ms ES, his elder daughter, L, attempted to intervene and he ‘shoved’ her away. He also confirmed that in a second incident when he and Ms ES had taken L to school and dropped her off, and then had an argument in the car, both T and M were present. He confirmed that as part of the dispute he tried to get M from the vehicle, while Ms ES tried to keep him inside the car, and that he resorted to punching the window of the car, causing it to smash.

127.    Ms ES gave frank evidence that the effect of the incident where L was pushed away has stayed with her elder daughter, and to some extent submerged the more positive memories L had of her father. Ms ES also said that she would have no concerns, now, about Mr Nuuamoa being with the children; she did not think he would harm them.

128.     In the extensive summonsed material from Child Protection, as mentioned there is reference to three reports to Child Protection between April 2016 and September 2017. Concerns were raised regarding the Applicant perpetrating family violence towards Ms ES and substance abuse by both Mr Nuuamoa and Ms ES.

129.     A “full exclusion Intervention Order” was in place listing Mr Nuuamoa as the respondent and Ms ES and the three children as the protected persons. As mentioned above, Mr Nuuamoa continued to breach the Order. Child Protection recorded that the oldest child, L, told officers she felt “upset and frightened at witnessing her father being violent.”

130.     I note, and take into account, a letter dated 4 November 2020 that L sent to the Department in support of the restoration of her father’s visa, in which she states she does not believe her father would be a danger to the Australian community.

…

132.     The Respondent submitted that the Tribunal should find that it is in the best interests of the Applicant’s children for Mr Nuuamoa’s visa not to be restored, because of the past incidents of family violence. After careful thought, I am not prepared to make such a finding. While the family violence incidents are clearly very serious and both occurred in the full view of young children, there is other evidence from Ms ES and Ms AN, and the Applicant himself, of a good relationship with his children. Admittedly his contact more recently has been through telephone and video calls, but there was no evidence that this more recent contact has not been harmonious. It may be that the driver of the family violence was a combination of the Applicant’s alcohol and ‘ice’ additions, and his poor anger management.

133.     I make a determination that it is in the best interests of the Applicant’s three minor children that the cancellation of the visa be revoked, but the weight that I attach to that is significantly lessened by the incidents of family violence to which the children have been exposed, and the enduring effect on them, especially L. The weight is also lessened because current Court orders prevent the Applicant living with the children, as he confirmed in his evidence. The Respondent submitted that Mr Nuuamoa would be able to maintain contact with his children through electronic means, as he does at present, if he was repatriated. I accept that as far as it goes but acknowledge that such arrangements are no substitute for personal contact, even supervised personal contact.

51    The Tribunal then goes on to assess the other considerations in Direction 90. The Tribunal finds, in summary, that the expectations of the Australian community weighs relative strongly against revocation; the extent of impediments to resettlement in New Zealand weights very slightly in favour of revocation; the impact on Australian business interests weighs in favour of revocation; and gives the other considerations neutral weight.

52    In its Conclusion section, the Tribunal finds as follows:

167.     In respect of the slight weight given to the primary consideration relating to the best interests of minor children, I make clear that the usual approach of the Tribunal is to weigh very strongly the parental link between children and a parent. However, this is a case where there has been a history of family violence, mainly involving the Applicant’s de facto partner, but also affecting the children. The Applicant made no attempt to minimise his past actions, but that candour does not make his conduct other than reprehensible. I note that Ms ES was adamant in answer to a question in the hearing that she would take their children to visit Mr Nuuamoa if his visa was not restored and he settled in New Zealand. Ms ES also did not close off the idea of moving with the children to New Zealand once Mr Nuuamoa had obtained employment and accommodation and established a base that she considered would be safe and secure for them.

53    Accordingly, the Tribunal decided to affirm the decision of the delegate not to revoke visa cancellation.

GROUNDS OF REVIEW

54    The grounds of review are described in the amended draft application as follows:

1.     The [Tribunal] constructively failed to exercise jurisdiction and/or failed to carry out to the statutory task required by s 501C(4) of the [Act] by failing to comply with Direction 90 in relation to Family Violence.

Particulars

a.     Aside from the conduct referred to in paragraphs [119] and [120] of its Reasons, contrary to primary consideration 8(2) the Tribunal did not identify the conduct relied on or make findings as to whether the conduct engaged in constituted family violence.

b.     Contrary to primary consideration 8.2, the Tribunal made no finding as to the seriousness of the family violence engaged in.

c.     Based on the material available, the Applicant was not afforded procedural fairness in relation to the material obtained from Child Protection. In the absence of procedural fairness the Tribunal could not rely on that material.

d.     In this case, the Tribunal accepted the extent to which the Applicant accepted responsibility for his family violence related conduct and the efforts to address factors which contributed to that conduct were relevant considerations: Reasons at [117]. The Tribunal failed to consider those matters.

e.     The error was material because it deprived the Applicant the possibility of a successful outcome.

2.     The Tribunal constructively failed to exercise jurisdiction and/or failed to carry out to the statutory task required by s 501C(4) of the [Act] by failing to comply with Direction 90 in relation to the bests interests of the Applicant’s children.

Particulars

a.     The Tribunal failed to consider representations made as to the likely effect of separation on the Applicant’s children.

b.     Aside from the conduct referred to in paragraphs [119] and [120] of its Reasons, the Tribunal did not identify the Tribunal the conduct [sic] relied on or make findings as to whether the conduct engaged in constituted family violence. The Tribunal could not reason in the manner it did in paragraph 133 without first identifying the family violence conduct and determining the seriousness of that conduct.

c.     The Tribunal misunderstood the evidence in relation to the Court orders (Reasons at [133]). Based on the material currently available, there were no current Court orders which prevented the Applicant living with his children.

d.     The error was material because it deprived the Applicant the possibility of a successful outcome.

3.     The decision of the Tribunal is affected by jurisdictional error, in that the Tribunal denied the Applicant procedural fairness and/or engaged in a process of reasoning that was legally unreasonable.

Particulars

a.     The Tribunal did not put the Applicant on notice that an “established plan” to deal with the challenges that face him may be material to its decision.

b.     In circumstances where the applicant had been in immigration detention since 20 October 2020 and had no legal right to be in Australia, it was not reasonable for the Tribunal to require the Applicant to have an “established plan” of the steps he would take in the Australian community.

c.     The procedure the Tribunal followed / the path of reasoning the Tribunal engaged in denied the Applicant the possibility of a successful outcome.

4.     The decision of the Tribunal is affected by jurisdictional error, in that the Tribunal could not be satisfied there was a valid cancellation under s 501(3A) of the [Act] because there was no evidence s 501(3A)(b) had been met. A valid cancellation under s 501(3A) is a precondition to a valid non-revocation under s 501(4).

Particulars

a.     The Applicant’s visa was purportedly cancelled under s 501(3A) of the [Act] on 20 October 2020 at 10.58am.

b.     The evidence before the Tribunal was that the Applicant was serving a sentence of imprisonment as at 9.06 am on 20 October 2020 but that he finished serving his sentence of imprisonment that day.

c.     The time at which the Applicant served his sentence of imprisonment on 20 October 2020 was not before the Tribunal.

d.     There was no evidence before the Tribunal that the Applicant was serving a sentence of imprisonment at 10.58am on 20 October 2020.

e.     On the evidence before it, the Tribunal could not be satisfied the precondition in s 501(3A)(b) of the [Act] had been met.

55    Ground Four relates to the respective points in time in which the cancellation decision and the cessation of the Applicant’s sentence occurred. On the basis of the materials, submissions and evidence, the Court understands the references in the draft amended application to 20 October 2020 to mean 21 October 2020. Nothing turns on that typographical error.

56    On the basis of those four grounds, the applicant seeks the following relief:

    A writ of certiori issue quashing the decision of the second respondent of 13 September 2021;

    The matter be remitted to the second respondent, differently constituted, for determination according to law; and

    The first respondent pay the applicant’s costs.

APPLICANT’S SUBMISSIONS

Ground One

57    Ground One concerns the Tribunal’s findings of family violence in relation to Primary Consideration 8.2 in Direction 90, set out in [30] above. The applicant contends that the Tribunal was required to, but failed to:        

(a)    assess whether the incidents on which the Tribunal relied, such as conduct in breach of an violence intervention order, in fact met the definition of “family violence” in Direction 90;

(c)    assess the seriousness of the incidents, in order to make a determination “proportionate to the seriousness of the family violence engaged in”, as Consideration 8.2 requires;

(d)    consider matters relevant to Consideration 8.2(3)(c), including the extent to which the Applicant had been affected by drugs and alcohol during those incidents; had accepted responsibility for the incidents; and had addressed factors contributing to that conduct; and

(e)    afford the applicant with procedural fairness in relation to the summonsed material.

58    The applicant submits that these errors constituted a failure to comply with Direction 90, and that such a failure was a jurisdictional error, relying on Rokobatini v Minister for Immigration & Multicultural Affairs [1999] FCA 1238; Cockrell v Minister for Immigration and Citizenship [2008] FCAFC 160; and BQL15 v Minister for Immigration and Border Protection [2018] FCAFC 104.

59    The applicant contends that the only conduct considered by the Tribunal was that discussed in D[119]–[120] of the Tribunal’s decision record. The applicant submits that nowhere in the Tribunal decision record is there an assessment as to whether that conduct was family violence, as it was required to do by Direction 90, and in that way failed to exercise its jurisdiction.

60    During oral submissions, counsel for the applicant appeared to accept that, had the Tribunal turned its mind to all elements of Consideration 8.2, it may well have been open to find that conduct other than that discussed in D[119]–[120] met the definition of family violence. The applicant contends that the Tribunal did not rely on any other such conduct in making its findings in relation to family violence.

61    The applicant further contends that the Tribunal’s findings at D[167] that “candour does not make Mr Nuuamoa’s conduct other than reprehensible”, is not an assessment of the seriousness of family violence, because the Tribunal never assessed whether that conduct amounted to family violence.

62    In relation to Consideration 8.2(3)(c), the applicant contends that while the Tribunal’s findings (at D[122]) that

I am not convinced that the applicant demonstrated to me a full appreciation of the effect of his actions may have had on his children. He tended in his evidence to link all this conduct to his ice addiction.

    the extent to which the applicant had accepted responsibility for breaches of the IVO;

can be seen as addressing Consideration 8.2(3)(c)(ii), the Tribunal did not address Consideration 8.2(3)(c)(i) and (iii). The applicant says that matters relevant to those considerations, but overlooked by the Tribunal, included:

    evidence that no incidents of violence occurred in the absence of alcohol or drug use;

    evidence that the Applicant had largely overcome his alcohol addiction;

    evidence of past relapse into substance abuse having occurred during a period of bereavement for his best friend;

    evidence that many of the programs the Applicant was referred to were not completed because of changes to his custody arrangements;

    evidence of the applicant’s attempts to enter rehabilitation being thwarted by capacity issues during the COVID-19 pandemic;

    courses completed by the applicant on managing anger, personal development and connecting with kids;

    a mental health plan developed for the applicant by a doctor, and an intention to see a psychologist; and

    a lack of evidence of recent methamphetamine use.

63    The applicant says that these omissions were material, because it deprived the applicant of factors that may have been assessed to his benefit.

64    In relation to the summonsed material, the applicant points out that under Consideration 8.2, the Tribunal could only consider information or evidence from independent and authoritative sources where the applicant has been afforded procedural fairness. The applicant seeks to rely on Snedden v Minister of Justice (2014) 230 FCR 82 and EXT20 v Minister for Home Affairs [2022] FCAFC 72 as authority for the proposition that what procedural fairness required was that:

    the decision-maker was relevantly obliged to inform the applicant of the case against him and provide him with a reasonable opportunity to answer it; and

    the applicant was entitled to be made aware of and have the opportunity to address the critical issues or factors on which the decision was likely to turn, as well as any adverse information that was credible, relevant and significant to the decision being made.

65    The applicant submits that he received a hard copy of the 291 pages of materials on 31 August 2021, while in immigration detention and five days before the Tribunal hearing. The applicant contends that in those circumstances, he had an insufficient amount of time to read and understand that material, and was given no direction from the Tribunal as to the importance of that material to issues the Tribunal ultimately found to be dispositive of his case.

Ground Two

66    The applicant contends that the Tribunal erred in its assessment of the best interests of the applicant’s children. The applicant contends that although the Tribunal “noted” the existence of the letter from his daughter L, it failed to consider its substance. In particular, L’s evidence that the applicant’s removal from Australia would negatively impact L and her siblings.

67    During oral submissions, I asked counsel for the applicant how L’s evidence reconciles with the evidence of her mother, Ms ES, that L’s positive memories of her father had been “submerged” by the effect of the incident where the applicant pushed L away (D[127]). Counsel submitted that although the Tribunal was entitled to take Ms ES’ evidence into account, and it was a matter for the Tribunal how it weighed the evidence before it, the Tribunal did not consider at all the effect of separation from the applicant on the applicant’s children, as required by Direction 90.

68    The applicant further contends that the Tribunal failed to consider his active involvement in the upbringing and wellbeing of his children since birth, when not incarcerated or subject to family violence intervention orders.

69    More broadly, the applicant submits that the Tribunal’s overall assessment of the best interests of his children was negatively affected by the Tribunal’s assessment in relation to family violence, because it found that although the best interests of children generally weigh in favour of revocation, this was “significantly lessened by the incidents of family violence to which the children have been exposed”. The applicant further contends that there was no evidence:

    for the finding that incidents of family violence had had “an enduring effect” on the applicant’s children; nor

    for the finding that Court orders would prevent the applicant from living with his children if released from detention.

70    The applicant submits that these errors were material, in that they could have realistically resulted in a different decision, because “the usual approach of the Tribunal is to weigh very strongly the parental link between children and a parent” (D[167]).

Ground Three

71    Ground Three concerns the Tribunal’s reasoning in D[110]–[115] in relation to the applicant’s lack of an “established plan” for addressing his risk of reoffending. The applicant contends that he was not put on notice that the Tribunal would require an “established plan”, and that was not something required by Direction 90 or raised by the delegate. The applicant submits that in circumstances where he had been detained for a prolonged period and had no legal right to be at large in the Australian community, it was legally unreasonable for the Tribunal to require him to have an “established plan” for that eventuality. The applicant considers that this error was material, because if properly put on notice he could have outlined steps that could have affected the Tribunal’s assessment of risk.

Ground Four

72    The applicant seeks to rely on two Full Court decisions that post-date the Tribunal decision: PYDZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 14 and XJLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 6. In those matters, the Full Court overturned the findings at first instance (see [44] above), instead holding that a valid cancellation decision is a pre-condition to the valid exercise of the revocation power under s 501CA(4) of the Act.

73    The applicant submits that s 6B of the Corrections Act 1986 (Vic) makes a distinction between “legal custody” and “service of a sentence”. That section reads:

(1)    A person ceases to be in the legal custody of the Secretary—

(a)    on the expiration of the person’s sentence of imprisonment…or

…

(b)    when the Secretary acting under the lawful direction or authority, or in accordance with an Act, releases the person from the Secretary’s legal custody.

74    The applicant submits that by the time the visa cancellation decision was made, by no later than 10:58 am on 21 October 2020, his release from gaol had already been processed by Corrections authorities, and thereby he had completed serving his sentence of imprisonment. The applicant contends that although he may have remained in custody after his release had been processed and while he was waiting in a cell, his sentence of imprisonment had ceased. The applicant contends that there was no evidence by which the delegate or the Tribunal could have been satisfied that at the time of the visa cancellation decision, the applicant was still serving a sentence of imprisonment, as required by the second limb of the mandatory cancellation provisions in s 501(3A) of the Act. The applicant submits that on that basis, the visa cancellation decision was invalid and accordingly the Tribunal had no jurisdiction to consider revocation of that cancellation under s 501CA(4).

MINISTER’S SUBMISSIONS

Ground One

75    The Minister submits that in completing its statutory task, the Tribunal was required to give “active intellectual consideration” to clearly articulated arguments advanced by a person making representations: Bettancourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 172 at [27] (Burley, Colvin and Jackson JJ). The Minister submits that “[w]hat is required is the reality of consideration by the decision-maker”: Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216 at [45] (Rares and Robertson JJ) such that representations “are a mandatory relevant consideration as a whole” but “not as to the individual statements contained in the representations”: Minister for Home Affairs v Buadromo [2018] FCAFC 151 at [41] (Besanko, Barker and Bromwich JJ).

76    The Minister submits that when read as a whole, the Tribunal’s reasons demonstrate that it considered the seriousness of the applicant’s family violence conduct, and found that it was serious enough to weigh strongly against revoking the mandatory cancellation of his visa (at D[123]). The Minister submits that the Tribunal also found:

(a)    “There has been a history of family violence, mainly involving the applicant's de facto partner, but also affecting the children. The applicant made no attempt to minimise his past actions, but that candour does not make his conduct other than reprehensible” (at D[167]); and

(b)    "…the Family violence incidents are clearly very serious…" (at D[132]).

77    The Minister submits that the following observations in the Tribunal’s reasons demonstrate consideration of the factors in Consideration 8.2(3):

    that the applicant’s family violence conduct was precipitated by his drinking, and not his drug taking (at D[122]);

    that the applicant’s evidence was that he would continue to consume alcohol in the community (at D[110]);

    that the applicant had a specific and serious problem with anger management (at D[110]);

    that the applicant had previously failed to address his drug and alcohol addictions and had failed remain clean upon his release from prison (at D[111]);

    that the applicant’s evidence in relation to pleading guilty to protect a friend reflected a lack of acceptance of guilt in relation to his offending or a weakness in relation to criminal associates (at D[112]);

    that the applicant had good intentions but was unable to set out an established plan to deal with the challenges he faced, and did not have an appreciation of parts of his offending history, or how to address his vulnerabilities to re-offend (at D[113]));

    that there was a real risk the applicant would reoffend, including in a domestic situation (at 115);

    that there was evidence of persistent breaches of family violence orders and the applicant freely admitted breaching those orders (at D[118], [119] and [123]); and

    that the applicant had failed to demonstrate a full appreciation of the effect of his actions on his children (at D[123]).

78    The Minister submits that the above observations demonstrate how the Tribunal considered the applicant’s evidence regarding rehabilitation and noted that the applicant had freely given evidence in relation to the instances of family violence, the breaches of the family violence orders, his drug and alcohol addictions and the programs that the applicant had undertaken. The Minister contends that based on the evidence before it, it was open to the Tribunal to conclude that the applicant did not have a full appreciation of the effect of his offending on his children, or adequate plans in place to address the possibility of future offending; including his issues with alcohol, anger management and history of breaching family violence orders.

79    The Minister submits that, reading the Tribunal decision “without an eye keenly attuned to error”, the contention that the Tribunal did not have regard to Consideration 8.2 (3) cannot be made out: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; BVD17 v Minister for Immigration and Border Protection (2019) 373 ALR 196; Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30 at [14].

80    The Minister further submits that the applicant was afforded procedural fairness in relation to the information contained in the summonsed material. The Minister contends that the applicant was sufficiently on notice of the importance of family violence to the outcome of his matter in three ways. Firstly, the applicant’s history of family violence conduct was raised in the delegate’s decision. Secondly, the summonsed material was specifically identified in the Minister’s Statement of Facts, Issues and Contentions before the Tribunal. Thirdly, in advance of the hard copy of the summonsed material being delivered to the applicant on 31 August 2021, the applicant was sent a copy of those materials on 17 August 2021. The Minister contends that in circumstances where the applicant gave oral evidence to the Tribunal addressing the information in the summonsed material, the contention that the applicant was not sufficiently on notice of its contents cannot be sustained.

Ground Two

81    The Minister submits that although the Tribunal’s reasons are not required to refer to every piece of evidence, the following passages in the reasons demonstrate proper consideration of the best interests of the applicant’s children to support its findings that those interests weighed in favour of revocation:

    the evidence suggesting that the applicant’s three children had all witnessed incidents of family violence perpetrated by the applicant (at D[126]);

    Ms ES’ evidence that she did not have concerns about the applicant being with his children, and did not think he would harm them (at D[127]);

    the evidence of L, that she supported the restoration of her father’s visa and did not believe he was a danger to the Australian community (at D[130]);

    acceptance that the applicant had a good relationship with his children (at D[132]);

    the evidence of the applicant and ES that suggested that there was an order in place that prevented the applicant from living with this children at the time of the decision (at D[66] and D[87]);

    the applicant's evidence regarding periods of separation from his children in 2016 and 2018 for around five to six months (at D[50]);

    Ms ES’s evidence that the applicant’s ability to have contact with the children would be conditional on the applicant being willing to engage with treatment (at D[88]);

    Ms ES’s evidence that she would take the children to New Zealand to visit the applicant if his visa was not restored and he settled in New Zealand, and did not close off the idea of moving to New Zealand once the applicant had secured employment and accommodation, if it was safe and secure for the children to move (at D[89]–[90] and [167]);

    the evidence suggesting the applicant had a good relationship with his children (at D[132]); and

    the finding that although the applicant could maintain contact with his children through electronic means, this would not substitute for personal contact (at D[133]).

82    The Minister submits that, read as a whole, the Tribunal’s decision discloses that it considered the likely impact of separation on the applicant’s children and that this was a factor that weighed in favour of revoking visa cancellation. This includes the passage in D[133] in which the Tribunal discusses the fact that contact with the children through electronic means to be no substitute for personal contact.

83    In relation to the relevance of family violence to the Tribunal’s assessment of the best interests of the applicant’s children, the Minister submits that in D[126], the Tribunal identifies the specific incidents of family violence to which the applicant’s children were exposed that it took into consideration.

Ground Three

84    The Minister submits that the Tribunal’s use of the phrase “established plan” should be taken no higher than its ordinary meaning and that it was not intended to establish a particular standard. The Minister contends that nonetheless, the applicant was on notice of the importance of demonstrating his future plans to manage his return to the community and to address drug and alcohol addiction and its role in past offending. The Minister says this is so because these issues were raised in the delegate decision; addressed in the applicant’s representations requesting revocation of cancellation; and addressed in evidence provided to the Tribunal by the applicant and his sister. The Minister submits that an established plan to address factors associated with risk of recidivism was a relevant and reasonable matter for the Tribunal to take into account.

Ground Four

85    The Minister accepts that as a result of the decisions in PYDZ and XJLR, s 501CA(4) requires the existence of a legally effective decision. The Minister contends that the visa cancellation decision was validly made. The Minister says that this is because:

    at the time the visa cancellation decision was made, the applicant had not been released from custody;

    the only evidence suggesting that the applicant was no longer serving a sentence at the time of the visa cancellation decision was the applicant’s oral evidence that he may have already completed release paperwork by the time of the visa cancellation decision;

    section 44(2) of the Interpretation of Legislation Act 1984 (Vic) provides that “where in an Act or subordinate instrument a period of time is expressed to end on, or to be reckoned to, a particular day, that day shall be included in the period”; and

    when read with s 44(2) of the ILA (Vic), the effect of s 6B of the Corrections Act (Vic) is that the applicant would be deemed to be continuing to serve a sentence of imprisonment for the whole of 21 October 2021.

CONSIDERATION

Ground One

86    This Court generally has jurisdiction to review decisions made under the Act only for jurisdictional error: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3. This Court will defer to the decision-maker in relation to any matters that fall within its “area of decisional freedom”, such as fact-finding, the weighing of evidence, and the reasoning of the decision-maker: Minister for Immigration and Citizenship v Li [2013] HCA 18, per French CJ at [28]. In the context of the decision under review, the assessment of the evidence presented to it and the relative weight attributed to the various considerations in Direction 90, was a matter for the Tribunal. Accordingly, the task of this Court is to take a fair reading of the decision, and without “an eye keenly attuned to the detection of error”: Wu Shan Liang at 272.

87    In relation to consideration to the nature and seriousness of the applicant’s family violence conduct I note the following:

    Considerations of family violence in 8.1.1 and 8.2 of Direction 90 are different. As the Tribunal noted in D[108], it was reluctant to consider the applicant’s family violence offending in the context of Consideration 8.1.1 to avoid “double counting” when the Direction directs the decision-maker to consider family violence offending under Consideration 8.2;

    8.1.1 required the Tribunal to consider violence against women and family violence as part its assessment of the nature and seriousness of past conduct “regardless of whether there is a conviction for an offence or a sentence imposed”;

    8.2. required the Tribunal to separately consider family violence where the person “has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence”;

    Direction 90 Section 5.2(5) and subsection 8.1.1. directed the Tribunal to consider family violence conduct and acts of family violence to be “very serious” and something that the government takes “very seriously”.

88    The applicant’s submission that the Tribunal did not consider whether or not the conduct could be described as family violence cannot be made out. The Tribunal had before it summonsed documents from the Child Protection Subpoena Unit of the Victorian Department of Families, Fairness and Housing which included three reports of the applicant perpetrating family violence towards Ms ES: D[119]. Further, the applicant freely admitted that he had been convicted of breaching IVOs in the Tribunal hearing: D[119]. The Tribunal was not required to engage in analysis of whether or not the conduct constituted family violence in the context of these documents being in evidence and the applicant accepting he had been convicted for breaches of family violence orders.

89    Further, the applicant contends that the Tribunal was required to consider the seriousness of the family violence offending and did not do so. Reading the Tribunal’s decision as a whole, it is clear that the decision maker did consider the offending to be very serious, as per its finding that Consideration 8.2 weighed heavily against the applicant. As noted by the Minister (see above in [77]), there are numerous instances of the Tribunal considering the factors in 8.2(3) throughout its decision.

Summonsed material

90    There was no controversy between the parties in relation to the legal principles to be applied to the contention that the applicant was not afforded procedural fairness in relation to the summonsed material. In Commissioner for the Australian Capital Territory Revenue v Alphaone (1994) 49 FCR 576, the Full Court said at 591–592 that

Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests.  That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker.  It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made.  The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material.  Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question.

91    In SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63, the High Court further considered the content of the requirements of procedural fairness found in Alphaone, in circumstances where the Tribunal is obliged under s 425(1) of the Act to “invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review”. The High Court there found that:

47.       [T]here may well be cases, perhaps many cases, where either the delegate's decision, or the Tribunal's statements or questions during a hearing, sufficiently indicate to an applicant that everything he or she says in support of the application is in issue.  That indication may be given in many ways.  It is not necessary (and often would be inappropriate) for the Tribunal to put to an applicant, in so many words, that he or she is lying, that he or she may not be accepted as a witness of truth, or that he or she may be thought to be embellishing the account that is given of certain events.  The proceedings are not adversarial and the Tribunal is not, and is not to adopt the position of, a contradictor.  But where, as here, there are specific aspects of an applicant's account, that the Tribunal considers may be important to the decision and may be open to doubt, the Tribunal must at least ask the applicant to expand upon those aspects of the account and ask the applicant to explain why the account should be accepted.

48.     … Procedural fairness does not require the Tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given.  On the contrary, to adopt such a course would be likely to run a serious risk of conveying an impression of prejudgment.

92    The principles in SZBEL were considered in EXT20, a case which involved a personal decision of the Minister and which was therefore decided on the basis of the former visa holder’s representations alone, and without a hearing. In EXT20 this Court said that

60.     …The references to “running commentary” must, I accept, be understood in light of the decision-maker in SZBEL having conducted an oral hearing, and the High Court placing some limits around the nature and details of what must be raised with a person during such a hearing. That is not this situation. Here, the appellant has no direct personal opportunity to persuade the Minister, no opportunity to gauge how the person making a decision about his whole future in Australia is reacting to what he has said. No direct opportunity to be responsive at all to matters the decision-maker has indicated are troubling them. Rather, the appellant sends representations and responsive written communications into a void – to the “National Character Consideration Centre” – without any idea of who might make a decision on his revocation request, not even whether it will be the Minister personally, or a delegate. This is a circumstance far removed from circumstances in which the High Court made the “running commentary” observations in SZBEL.

93    In the present case the material was given to the applicant electronically on 17 August 2021 and a hard copy was provided on 31 August 2021. The hearing was listed on 13 September 2021 and the applicant gave evidence in relation to the material in question at the hearing: D[59], D[60] and D[126]. The Minister also referred to the summonsed material in its Statement of Facts, Issues and Contentions (SOFIC) at [32] and [41]–[44]. In oral submissions, counsel for the Minister submitted that the applicant had been aware of the family violence considerations that the decision maker would take into account since the decision of the delegate made on 18 June 2021.

94    I consider that the applicant was given adequate time to consider the subpoenaed material, and was given opportunities at the Tribunal hearing to respond directly to it. As such, procedural fairness was afforded to the applicant. This ground is not made out.

Ground Two

95    One of the elements of Ground Two is the effect of the Tribunal’s finding in relation to family violence on its consideration of the best interests of the children. For the reasons set out in relation to Ground One, the Tribunal was not required to consider whether the applicant’s conduct did actually constitute family violence as it was clear on the evidence that it did (see above at [88]–[89]).

96    The other contentions in Ground Two cavil with the way in which the Tribunal considered the best interests of his children. Both parties accepted that while the Minister is not bound to consider every statement in a representation, jurisdictional error may arise if the Minister fails to consider a significant submission or information in those representations.

97    In Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17, the High Court recently said this in relation to what it means to consider a representation at [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, 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

(Citations removed.)

98    The passage above recalls the language used by the majority in Maioha, that “[w]hat is required is the reality of consideration by the decision-maker”. The way in which this ground was argued by the parties in this matter was not inconsistent with the approach set out by the High Court in Plaintiff M1/2021.

99    Reading the Tribunal’s decision as a whole, it is clear that the Tribunal did grapple with the best interests of the applicant’s children and the effects of any future separation. As noted in D[130], the Tribunal considered L’s letter and the evidence contained within it. The Tribunal was not required to respond to every statement in that letter individually in its reasons: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 at [47]. It also considered other consequences of removal on the applicant’s children at D[88]–[90], [133] and [167].

100    In relation to the Tribunal’s finding that Court orders would prevent the applicant living with his children on release from detention, the starting point is that the Tribunal is entitled to decide the case on the evidence before it, and is not under any obligation to obtain further evidence or material: Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 at [41]. In this matter, it is tolerably clear that in making its findings that the applicant would be prevented from living with the children due to Court order, the Tribunal was relying on the oral evidence of the applicant, his sister and Ms ES as to the existence of a Court order and its effect. While it might have been reasonable in these circumstances for the Tribunal to make enquiries to ascertain for itself the existence of such an order, not making such an enquiry only amounts to jurisdictional error “in rare or exceptional circumstances”: Minister for Immigration and Citizenship v Le (2007) 164 FCR 151 per Kenny J at [60]; Kaur v Minister for Immigration and Border Protection [2017] FCAFC 184 at [33]. The present case is not such a rare or exceptional circumstance.

101    Even if no such order restraining the applicant from living with Ms ES and his children existed, such an error would be immaterial. The Tribunal found that this consideration weighed in favour of revocation. If the Tribunal was to have determined that no such family violence orders existed, despite the direct evidence of the applicant, his sister and Ms ES, the strength of the factors that the Tribunal determined weighed against revoking the decision would have still resulted in an adverse decision for the applicant.

102    The ground is not made out.

Ground Three

103    Parliament is taken to have intended that a discretionary power is to be exercised reasonably: Abebe v Commonwealth [1999] HCA 14, per Gaudron J at [16]; Li, per French CJ at [29]; per Hayne, Kiefel and Bell JJ at [63]; per Gageler J at [88]. A decision will be legally unreasonable where it is inconsistent or incompatible with the subject matter, scope and purpose of enacting legislation, given the facts and circumstances of the case and with due regard to the separation of powers: NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38.

104    Legal unreasonableness may be found where, on examination of the reasons provided for the decision, it is not possible for the Court to comprehend how the decision was arrived at: Li, per Hayne, Kiefel and Bell JJ at [76]. This may include that illogicality or irrationality, in the sense of an outcome at which no rational or logical decision-maker could arrive on the same evidence, or a decision is “clearly unjust” or “arbitrary” or “capricious” or “unreasonable” in the sense of a state of satisfaction or non-satisfaction that could possibly be formed by a reasonable person: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16. Legal unreasonableness will not be made out through characterisation of a decision that amounts to no more than emphatic disagreement with the evaluation of the merits of a matter, within the decision-maker’s area of decisional freedom: Minister for Immigration v Eshetu [1999] HCA 21 at [40]. Similarly, legal unreasonableness will not be found where there is some evident, transparent and intelligible justification that lies within the reasons given for the decision: Li at [105]; Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 at [48]–[49].

105    In this matter, the Tribunal’s reasoning and findings in D[110]–[115] do not evince a failure to engage with the question of whether the applicant presents a risk to the Australian community, and the applicant’s representations and evidence on that issue. However described, the factors that the Tribunal took into account in assessing that risk, and the existence of any mitigating factors to ameliorate that risk, were relevant to the evaluation of risk, and relied on probative material that led rationally to its conclusions. It cannot be said that the Tribunal made findings in relation to recidivism and rehabilitation unsupported by probative material which led to irrational or illogical reasoning, such as to give rise to jurisdictional error in the way contemplated by Crennan and Bell JJ in SZMDS. Nor can it be said that D[110]–[115] demonstrates a fundamental misunderstanding of evidence of sufficient gravity to give rise to jurisdictional error: SZSMR v Minister for Immigration and Border Protection [2015] FCA 655 at [56] (per Gleeson J); Gill v Minister for Immigration and Border Protection (2017) 250 FCR 309 at [71]-[72] (per Griffiths and Moshinsky JJ). This ground fails.

Ground Four

106    Once the two conditions of s 501(3A) are fulfilled, the power of cancellation is mandatory; the Minister must cancel the visa: Falzon v Minister for Immigration and Border Protection (2018) 262 CLR 333 at [44] per Kiefel CJ, Bell, Keane and Edelman JJ. The sole issue relevant to ground four is whether at the time of the decision, the condition in s 501(3A)(b) was fulfilled.

107    It is clear that the Tribunal was live to the issue of whether a valid cancellation decision had been made. Had the Tribunal understood that a valid cancellation decision was a condition precedent to the exercise of its jurisdiction, as subsequently determined by the Full Court in PYDZ and XJLR, it may have examined in more detail than it did whether the cancellation decision was valid. For example, the Tribunal might have considered whether the applicant should have been cross-examined on his oral evidence as to the timing of his release from custody, or used its various discretionary powers to obtain further information and documents in relation to the process of release from corrective custody.

108    Because the Tribunal did not consider that it was required to do so in order to find that it had jurisdiction to conduct its review, there is a paucity of evidence before the Court as to the relative timing of the actions taken on 21 October 2020. That evidence comprised:

(a)    A Department file note dated 21 October 2020 (and said to be at 9.06 am) stating:

I contacted the sentence management section of the Sentence Calculation and Warrant Administration, Community Division, Department of Justice and Community Safety in Victoria by email today. I was advised that Mr Mafoe Chanel NUUAMOA is serving a sentence of imprisonment on a full time basis in Port Phillip Prison in Victoria.

(b)    The Mandatory Cancellation Decision expressed to be made at 10.58 am on 21 October 2020.

(c)    Emailed notification of the Mandatory Cancelation Decision to the applicant, care of Port Phillip Prison at 11.06 am on 21 October 2020.

(d)    Evidence given by the applicant at the Tribunal that:

(i)    He had completed the release paperwork and was being readied to leave, when he was then asked to wait in a cell.

(ii)    A short time later he was provided with a copy of the Mandatory Cancellation Decision and taken into immigration detention.

(iii)    He was taken from the prison into immigration detention on 21 October 2020.

109    The Tribunal set out the applicant’s evidence at D[22]:

Mr Nuuamoa’s evidence was that on 21 October 2020, which is the date he completed the prison sentence imposed by the Court, he had expected to be released. He was processed by the corrections authorities at the prison and readied to leave. He said he was then asked to wait in a cell. The Applicant said that officers of the Australian Border Force (‘ABF’) then arrived. He was given a letter (GD, p 153 and p 411) notifying him that his visa had been cancelled. These ABF officers then took him into immigration detention.

110    The Tribunal made the following observations in relation to the Department file note of 9.06 am at D[25] and [26]:

… Page 321 of the GD is a file note from an officer of the Department stating that the officer had emailed the sentencing area of the Victorian Department of Justice and Community Safety on 21 October 2020 and had been advised Mr Nuuamoa was serving a prison sentence. The file note is not signed but has the author’s position number and they have typed the time of completing the note as 9.06 am. It is not plausible that the email making the inquiry could have been sent, that the Victorian authorities could have checked their prisoner records and responded, and that the one page file note could have been written – all within one minute. It also appears not to have been the prison where Mr Nuuamoa had been serving his sentence that was emailed but an administrative area of the Victorian Justice Department.

The note goes on to say that the Minister’s delegate decided to cancel the visa at 10.58 am, i.e. almost two hours later. A letter advising of the cancellation was then sent to the prison to give to Mr Nuuamoa. …

111    In relation to the applicant’s evidence that prior to his receipt of the notification of the visa cancellation he had been processed, and “asked to wait”, the Tribunal said at D[26]:

The evidence of the Applicant that he had been processed in the usual manner as he had completed his sentence is plausible, as is his evidence that, after completion of this release procedure, he was then asked to go and wait in a cell.

(Emphasis in original.)

112    At D[27] the Tribunal made the following observation:

It would seem to the Tribunal that for a mandatory cancellation decision to be made on the very day a non-citizen prisoner is to be released having completed his or her sentence is perilous administrative practice, because the consequence may be the invalidity of the visa cancellation.

113    Section 501(3A) was part of a package of amendments enacted pursuant to the Migration Amendment (Character and General Visa Cancellation) Bill 2014 (Cth), the Explanatory Memorandum for which stated of the proposed s 501(3A):

32.     This item ensures that the visa of a non-citizen who is in prison and objectively does not pass the character test because they have a substantial criminal record (as set out in subsection 501(7) of the Migration Act and amended by items 13 to 15 of this Schedule) or because of a sexually based offence involving a child (as set out in new paragraph 501(6)(e) inserted by item 12 of this Schedule) must be cancelled without notice to the visa holder.

33.     A person whose visa has been cancelled under subsection 501(3A) of the Migration Act is able to seek revocation of this decision under new section 501CAinserted by item 18 of this Schedule. Merits review of a decision of a delegate not to revoke the decision to cancel the visa is available under new paragraph 500(1)(ba) inserted by item 4 of this Schedule.

34.     The intention of this amendment is that a decision to cancel a person's visa is made before the person is released from prison, to ensure that the noncitizen remains in criminal detention or, if released from criminal custody, in immigration detention while revocation is pursued.

(Emphasis added.)

114    As Kiefel CJ, Bell, Keane and Edelman JJ held in Falzon at [56], the cancellation of a visa has the immediate effect that the person’s status is changed from a lawful to an unlawful non-citizen. They said that by “selecting the objective facts of conviction and imprisonment [the] Parliament does not seek to impose an additional punishment” (at [48]). They held that the purpose of s 501(3A) was to keep the person whose visa was cancelled out of the community (in prison or immigration detention) until he or she is removed or his or her immigration status is otherwise resolved (at [48]–[50]); XJLR at [44].

115    Rares J (with whom Yates J agreed) observed in XJLR at [45] that it is important in construing s 501(3A) to have regard to the circumstances in which it operates. These include the following:

First, it imposes an imperative duty on the Minister (in contrast with the conferral of a discretion in s 501(2)). Secondly, the criteria in paras (a) and (b) are objective facts (Falzon 262 CLR 333 at [48]). Thirdly, s 501(5) excludes the rules of natural justice and the procedures in Subdiv AB of Div 3 of Pt 2 of the Act (namely, in ss 51A to 64) which is headed “Code of procedure for dealing fairly, efficiently and quickly with visa applications”. Fourthly, the performance of the duty has the consequence that the visa holder loses his or her existing rights and status as a lawful non-citizen (Falzon 262 CLR 333 at [56]).

(Emphasis in original.)

116    Thus, the exercise of the power to cancel a visa under s 501(3A) operates to deprive a person of an existing status, being a right or privilege, namely the rights conferred by the visa to be lawfully present in Australia: Falzon at [56]. The power conferred in s 501CA(4) to revoke such a cancellation is, first, discretionary, and secondly, exercised on different criteria than the existence of objective facts as prescribed in s 501(3A): Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane (2021) 395 ALR 403 at [12]–[14].

117    As evident from the text of s 501(3A), paragraph (a) requires a “positive state of satisfaction” on the part of the Minister (Falzon at [46]), while paragraph (b) operates upon a factual state of affairs at a particular point in time: Ketjan v Assistant Minister for Immigration and Border Protection (2019) 273 FCR 105 at [42].

118    A legally effective s 501(3A) decision is a jurisdictional fact that must exist for the purposes of s 501CA(1) in order to enliven the power in s 501CA(4). Section 501CA(1) operates to make the procedure in s 501CA apply if the precondition it stipulates exists, namely that the Minister “makes a decision… under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa”. Once that jurisdictional fact exists, the power under s 501CA(4) is exercisable: XJLR at [57]–[58]. That is, s 501CA is only engaged if there is a legally valid s 501(3A) decision, that is capable of being revoked pursuant to the exercise of the discretion under s 501CA(4): XJLR at [63]

119    Rares J observed in XJLR at [66] that it was:

[D]ifficult to discern a Parliamentary purpose in requiring mandatory cancellation of a visa under s 501(3A) if two objective criteria are met, namely, the person, first, fails the specifically defined character test in s 501(3A)(a) based on the Minister’s positive state of satisfaction (Falzon 262 CLR at 347 [46]) and, secondly, is then serving a full time custodial sentence of imprisonment for an offence against a law of the Commonwealth, a State or a Territory as prescribed in s 501(3A)(b), if one or both of those criteria were not actually satisfied as an objective fact. The Parliament intended s 501(3A) to apply in objectively clear circumstances which denied the Minister any discretion. But there is no intelligible reason why s 501(3A) should be construed so as to allow it to operate as “a decision in fact” on which s 501CA(1) operates, if one or both of the objective facts that it prescribes did not exist at the time of its exercise. That is why s 501CA(1) is expressed to make s 501CA apply only if the Minister “makes a decision… under subsection 501(3A)”, as opposed to if the Minister thinks that he or she has done so: Liversidge v Anderson [1942] AC 206 at 245.

See also XJLR per Yates J at [95].

120    In other words, the Parliament intended that a mandatory cancellation pursuant to s 501(3A) would occur only in the clearest of situations pursuant to an exceptional, closely confined power: XJLR at [68].

121    The onus lies on the applicant to demonstrate jurisdictional error: Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50 at [24].

122    Putting aside for a moment the question of whether the applicant could be considered to be serving a sentence “on a full-time basis” on the day of their release from prison, the question before the Tribunal was whether the applicant was still serving a sentence of imprisonment when the Minister cancelled the applicant’s visa pursuant to s 501(3A) of the Act at 10.58 am on 21 October 2020.

123    The decision to cancel the applicant’s visa was expressed to be made at 10.58 am. A copy of the notice of cancellation was emailed to two justice.vic.gov.au emails: apb.documentation@justice.vic.gov.au and SCWA.OperationalEnquiries@justice.vic.gov.au at 11.06 am the same day. At the time the applicant was given the notice, the applicant’s evidence is that he had been processed and released from prison, and waiting in a cell.

124    I consider that the applicant’s evidence that he had been processed and released before he was given the notice is sufficient to shift the evidential onus to the Minister to establish the fact that the applicant was serving a sentence of full time imprisonment at 10.58 am when the decision to cancel the visa was made. The evidence before the Tribunal which I have set out above does not establish that fact.

125    I endorse the Tribunal’s comment at D[27], that for a mandatory cancellation decision to be made on the very day a prisoner is to be released having completed his or her sentence is perilous administrative practice, because the consequence may be the invalidity of the visa cancellation. Where Parliament intended that a mandatory cancellation pursuant to s 501(3A) would occur only in the clearest of situations pursuant to an exceptional, closely confined power (XJLR at [68]), and the Explanatory Memorandum expresses an intention that the cancellation decision be made before the visa holder is released, the delegate takes a risk waiting until the day of release to make the cancellation decision.

126    Even if the Minister was able to establish that the cancellation decision was made prior to the applicant’s release, I do not consider that the last day of the applicant’s sentence, the day on which he was released, satisfies the requirement of s 501(3A)(b), that the applicant be serving a sentence of imprisonment, on a full-time basis. On the day of their release, a prisoner has served their sentence, and given their imminent release, that sentence could not be described as still being served on a full-time basis.

127    For these reasons I find that the cancellation decision purportedly made under s 501(3A) on 21 October 2020 was legally ineffective.

128    There being no valid decision to engage s 501CA(1), it is inappropriate to order that the matter be remitted to a differently constituted Tribunal.

129    Ground four succeeds.

DISPOSITION

130    The application should be allowed with costs. I will so order.

131    The applicant is entitled to a declaration that the purported s 501(3A) decision of the delegate on 21 October 2020 was of no legal effect. As such, the appellant will be entitled to be released immediately from immigration detention.

Associate:

Dated:    13 June 2023