FEDERAL COURT OF AUSTRALIA

XGHJ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 772

ORDERS

THE COURT ORDERS THAT:

1.    The name of the first respondent be changed to “Minister for Immigration, Citizenship and Multicultural Affairs”.

2.    The application be dismissed.

3.    The applicant pay the first respondent’s costs as agreed or taxed.

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

REASONS FOR JUDGMENT

GOODMAN J

A.    INTRODUCTION

1    The applicant is a citizen of the Republic of Korea who was the holder of a Resident Return (Class BB) (subclass 155) visa.

2    The applicant’s visa was cancelled by a delegate of the first respondent (Minister) under s 501(3A) of the Migration Act 1958 (Cth) on the basis that he had a substantial criminal record. The applicant subsequently made representations to the Minister seeking the revocation of that cancellation under s 501CA(4) of the Act. A delegate of the Minister decided not to revoke the cancellation. The applicant then sought review by the Administrative Appeals Tribunal. The Tribunal affirmed the delegate’s decision, but the Tribunal’s decision was subsequently overturned by this Court. Upon remittal, a differently constituted Tribunal reaffirmed the delegate’s decision and published its reasons (T) for doing so. The applicant seeks judicial review of the Tribunal’s decision.

B.    THE PROCEEDING BEFORE THE TRIBUNAL AND THE TRIBUNAL’S DECISION

3    The Tribunal heard the applicant’s application on 28 April and 6 May 2021. The applicant was represented at that hearing by two counsel. The Tribunal’s reasons are detailed (occupying some 522 paragraphs over 107 pages).

4    The Tribunal commenced its reasons by setting out a detailed recitation of the history of the proceeding and of the factual background (T[1] to [79]). The Tribunal then identified the two issues that it was required to determine: (1) whether the applicant passed the character test as defined by s 501(6) of the Act; and (2) whether there was another reason why the decision to cancel the applicant’s visa should be revoked (T[80] to [84]). The Tribunal answered the first of these questions in the negative (T[86] to [90] and T[102] to [107]) before turning to the principal issue before it: whether there existed another reason to revoke the decision to cancel the applicant’s visa.

5    The Tribunal structured its consideration of this issue by reference to Direction No. 90 – “Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA” and addressed:

(1)    the primary considerations set out in the Direction namely:

(a)    the protection of the Australian community from criminal or other misconduct (T[125] to [288]);

(b)    whether the conduct engaged in by the applicant constituted family violence (T[289] to [356]);

(c)    the best interests of minor children in Australia (T[357] to [385]);

(d)    the expectations of the Australian community (T[386] to [412]);

(2)    the other considerations set out in the Direction, namely:

(a)    Australia’s international non-refoulement obligations (T[414] to [415]);

(b)    the extent of impediments faced by the applicant if he were to be removed from Australia (T[416] to [461]);

(c)    the impact on victims (T[462] to [472]); and

(d)    the applicant’s links to the Australian community (T[473] to [503]).

6    The Tribunal then summarised its findings in relation to each of the primary and other considerations before finding that the ongoing risk posed by the applicant to the Australian community outweighed the considerations in his favour and deciding to affirm the decision under review (T[506] to [522]). The central findings made by the Tribunal were fairly summarised in the written outline of submissions of the Minister on this appeal and are set out below (omitting evidentiary references):

7.    The Tribunal set out, in detail, the Applicant’s time in South Korea (pre-July 1997, prior to travelling to Australia) and his time in Australia (post-July 1997), including the Applicant’s offending in Australia. The Tribunal summarised the applicable law. It found that the Applicant did not pass the character test and then turned to consider whether there was another reason why the cancellation of the Applicant’s visa should be revoked.

8.    In relation to the first primary consideration (protection of the Australian community), the Tribunal viewed the Applicant’s violent offending, including against police officers, as being serious, and observed that intoxication was a theme linking some of his offending. The Tribunal considered there to be a “disturbing feature” of the Applicant’s offending, namely that he had frequently appeared in Court and expressed remorse for his offending and his preparedness not to do so again, yet would “again and again” offend, which showed a “wilful disregard” for the law and the elevation of his own needs above those of the community. The Tribunal concluded that the Applicant’s criminal conduct was “very serious”.

9.    The Tribunal observed that, if the Applicant were to re-offend, he would pose a “serious risk to the Australian community”. The Tribunal considered a report of Ms Bostock (a psychologist) tendered by the Applicant, but concluded that the report was predicated on a number of false or incorrect premises. The Tribunal found that Ms Bostock’s report was instructive as it shed light on the Applicant’s lack of self- awareness about his violent offending, and also considered that the evidence before it did not support Ms Bostock’s conclusions. The Tribunal was not convinced by the Applicant’s evidence to it that he was remorseful or had gained insight into his offending. The Tribunal was also concerned that the Applicant had not undertaken courses designed to minimise the risk of him reverting to alcohol misuse. The Tribunal considered that there was “at least a medium risk, and possibly a significant risk”, to the Australian community of the Applicant engaging in further criminal conduct if he returned to the community. It concluded that the protection of the Australian community consideration weighed heavily against the Applicant.

10.    In relation to the second primary consideration (family violence), the Tribunal was satisfied that the Applicant had committed acts of family violence. The effect of that offending had resulted in physical, mental and financial harm. The Tribunal was not satisfied that the Applicant had made substantial efforts to address the factors contributing to this offending and did not accept that he had achieved the level of rehabilitation in relation to his alcoholism that might seriously address his history of family violence. The Tribunal found that this primary consideration weighed heavily against revocation.

11.    In relation to the third primary consideration (best interests of minor children), the Tribunal identified four children to be considered. It accepted that the Applicant had had a close and loving relationship with them and a positive impact on their lives. It accepted that the Applicant’s removal from Australia would have a negative impact on them, at least in the short term, and that their best interests weighed moderately in favour of revocation.

12.    In relation to the fourth primary consideration (expectations of the Australian community), the Tribunal considered that the Australian community would expect the Applicant’s visa cancellation not be revoked. This weighed moderately in favour of non-revocation.

13.    In relation to the extent of impediments the Applicant may face if removed from Australia in establishing himself and maintaining basic living standards, the Tribunal addressed the Applicant’s health conditions and found that he was receiving proactive and professional medical treatment. The Tribunal did not accept that the Applicant would be unable to access the South Korean health care system on return. The Tribunal further found that the Applicant would be able to re-integrate into South Korean society with minimal difficulty and that there was no reason to think that the Applicant could not find employment. The Tribunal found that while the Applicant would face impediments on return to South Korea, these would progressively minimise. It concluded that this consideration weighed moderately in the Applicant’s favour.

14.    The Tribunal took into account the risk of the Applicant committing further offences against his step-daughter, but found that this only moderately weighed against the Applicant. The Tribunal accepted that the Applicant’s wife and step-daughter had suffered financially in the Applicant’s absence, and that the Applicant had made a positive contribution to the Australian community through his employment, church activities and private acts of charity. The Tribunal found that the Applicant’s links to the Australian community weighed moderately in his favour.

15.    The Tribunal concluded that the ongoing risk of that the Applicant posed to the Australian community outweighed all other considerations in his favour. Accordingly, the Tribunal affirmed the delegate’s decision.

C.    THE APPLICATION FOR JUDICIAL REVIEW

7    The applicant’s application for review of the decision of the Tribunal states the following grounds of review:

1.    The Tribunal’s decision was unreasonable.

2.    The Tribunal denied procedural fairness to the applicant.

3.    The Tribunal engaged in judicial error by failing to take into [account] a relevant consideration.

8    The grounds of review as drafted are vague and meaningless, and on that basis alone, are liable to be dismissed: WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35] (Gilmour J); NWWJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 176 at [37] (Perram, Derrington and Stewart JJ). However, at the hearing the applicant made a series of oral contentions, to which the Minister’s counsel responded, and which I will treat as particulars of the pleaded grounds of review.

9    The applicant’s first contention was that he was told that there would be a third hearing day and this did not occur, depriving him of the opportunity to call his psychologist, Ms Bostock, to give evidence. However, the applicant did not identify who told him that and there is no evidence in support of his contention. Further, as noted above, the applicant was represented by two counsel. In any event, Ms Bostock’s report was received into evidence by the Tribunal. At T[252] to [254], the Tribunal stated:

252.    The Respondent contends that the report of Ms Bostock be given no weight – RCS para 5b. Much of this contention is based on the unavailability of Ms Bostock for cross-examination – RCS para 15.

253.    In contradistinction, the Applicant’s legal representatives contend that the Respondent declined to pay Ms Bostock’s professional fee should she attend to be cross-examined – AR paras 25-26.

254.    The Tribunal has carefully considered Ms Bostock’s report, and the fact that she did not give oral evidence does not result in a finding that her report be given no weight. On the contrary, the Tribunal has found her report to be instructive as it shines a light on the Applicant’s awareness or, more correctly, lack of self-awareness of his violent offences against his first two wives.

10    It is difficult to see what prejudice the applicant suffered in circumstances where Ms Bostock’s report, adduced into evidence by his counsel, was considered by the Tribunal despite Ms Bostock not having given oral evidence. It also seems unlikely that the applicant’s position would have improved if Ms Bostock had been cross-examined.

11    The applicant’s second contention, which is related to the first, was that an agreement had been reached between the parties and the Tribunal that Ms Bostock’s report would be received into evidence and treated favourably by the Tribunal and that contrary to this agreement the Tribunal did not afford the report favourable weight and instead gave it less weight because the Tribunal considered that it was affected by the applicant’s “self-reporting”. Again, there is no evidence of such an agreement and the proposition that there existed such an agreement is difficult to reconcile with the fact that the Minister contended that Ms Bostock’s report should be given no weight. It is also difficult to conceive that the Tribunal would bind itself to treat particular evidence favourably.

12    Further, the “self-reporting” mentioned by the applicant was a reference to information provided by the applicant to Ms Bostock and which formed the basis of assumptions she made for the purposes of her report. At various points in its reasons, the Tribunal made the point that particular opinions of Ms Bostock were based upon such assumptions and that the Tribunal did not accept those assumptions because they were contrary to other (often contemporaneous documentary) evidence. Examples are found at T[209] to [214] and T[225] to [248]. To the extent that Ms Bostock’s report included assumptions based upon information provided to her by the applicant that were contrary to other evidence, that was a function of the applicant’s provision of such information to Ms Bostock and the decision of his legal representatives to tender Ms Bostock’s report.

13    The applicant’s third contention was that the hearing before the Tribunal was “rushed”. This contention is also not supported by evidence. The Tribunal’s reasons record that: the matter was heard over two days; the applicant was represented and gave oral evidence, as did his wife and step-daughter; and the parties were provided with an opportunity to file post-hearing closing submissions, which they took. In those circumstances, and in the absence of evidence of a transcript or audio recording of the hearing before the Tribunal, there is no basis upon which to find that the Tribunal failed to afford the applicant procedural fairness.

14    The applicant’s fourth contention was that the Tribunal failed to consider the applicant’s medical issues, and in particular that he had potentially cancerous polyps in his gallbladder. This contention founders upon the Tribunal’s express consideration – as part of its consideration of the second other consideration set out in the Direction (the extent of impediments to the applicant if the applicant were to be removed from Australia) – of the applicant’s medical issues including evidence in relation to his gallbladder polyps (T[421] to [434]). The Tribunal found that the applicant was receiving appropriate health care in immigration detention, including with respect to his gallbladder polyps (T[431] to [432]). At T[434], the Tribunal expressed the following conclusion:

The evidence presented does not support the proposition that the Applicant’s gallbladder, hypertension and other conditions are not being properly treated or monitored. On the contrary, it would appear from the voluminous medical evidence contained in Exhibit 4, that the Applicant has been the recipient of proactive and professional medical treatment.

15    The applicant’s fifth contention was that the Tribunal did not consider the availability or cost of medical treatment in Korea if the applicant were to be returned to that country, including the waiting periods for such treatment. This contention founders upon the Tribunal’s express consideration – again, as part of its consideration of the extent of impediments to the applicant if he were to be removed from Australia – of the extent of impediments to medical treatment the applicant would face (T[435] to [444]). That consideration included consideration of the applicant’s submissions concerning waiting periods (T[443]). The Tribunal observed that: Korea was a developed country with a strong democracy, manufacturing industry and a first-world economy (T[436]); Korea has had universal health care since 1989 which covers the entire population and is financed through a national insurance scheme (T[437]); and the applicant’s own evidence was that he had received psychiatric treatment and had been diagnosed with alcohol dependency in Korea and that the Korean health system was “quite good” (T[438] to [442]).

16    The applicant’s sixth contention was that the Tribunal’s reasoning had been “clouded” by its consideration of a psychologist’s report concerning the applicant’s wife, which the applicant submitted had mistakenly been provided in support of her daughter’s visa application. The applicant complained in particular that the Tribunal incorrectly found, using that psychologist’s report, that on one occasion the applicant had been “explosive, with an explosive temper” and that his wife had been forced to call the police, when in fact the opposite was true. There are several problems with this contention:

(1)    the applicant did not identify the psychologist’s report. However, counsel for the respondent indicated that it formed part of a confidential exhibit (Exhibit 5) and that the Tribunal expressly noted that it did not have regard to that exhibit (T[101]);

(2)    the applicant did not identify the part of the Tribunal’s reasons said to have been affected by this evidence;

(3)    the applicant’s contention depends upon the implicit proposition that the only source of evidence of the applicant’s volatility and the calling of the police was the confidential psychologist’s report. However, the Tribunal referred to a considerable body of evidence, and in particular contemporaneous police records, from which conclusions could be drawn that the applicant was volatile with his wife and that there had been incidents involving them to which police were called: see, e.g., T[47] to [57], [74].

17    The applicant’s seventh contention was that the Tribunal erred in not accepting that his evidence of remorse was genuine and instead rejecting that evidence because it was inconsistent with the position that the applicant had taken at the first Tribunal hearing. The Tribunal considered the question of the applicant’s remorse when considering the risk that he posed to the Australian community, as part of the first primary consideration, and did not accept that the applicant was genuinely remorseful. The approach taken by the Tribunal is reflected in T[274] to [275] and [285] to [286]:

274.    It is submitted, that the Applicant has acquired insight and remorse during his rehabilitation whilst in immigration detention. That may be case for many persons, but what the Tribunal finds difficult to appreciate, is why the Applicant as late as October/November 2020 would deny responsibility for assaulting his first two wives (as reported to Ms Bostock), and yet six months later would accept responsibility. By the time the Applicant was interviewed by Ms Bostock he had been in immigration detention for almost two years.

275.    This necessarily leads to the views formed by the Tribunal of the Applicant’s testimony. The Tribunal was not convinced by the Applicant’s testimony that he was remorseful or had gained true insight into his offending. The Applicant’s testimony was, at times, formulaic and lacked conviction. The Tribunal formed the view, independently of any submissions of the Respondent, that the Applicant made patently self-serving statements about his remorse for the assaults he perpetrated on his first two wives.

…

285.    The history of the Applicant as previously outlined, does not support the optimistic assessment of Ms Bostock. The Tribunal formed the view that the Applicant is not as remorseful as Ms Bostock opined. Assessing the degree of a person’s remorse is an inherently subjective exercise and largely dependent on the subject of the assessment expressing their feelings in a truthful and open manner. In this matter, Ms Bostock’s assessment of the Applicant was predicated, to a degree, on his self-reporting of the circumstances leading to the assault on his first two wives. The accounts he gave to Ms Bostock were recanted when the Applicant gave testimony to the Tribunal in 2021. The Tribunal formed the opinion, having closely observed the Applicant give evidence, that he was not a contrite and remorseful individual.

286.    The history of the Applicant is one of a cycle of him offending, expressing remorse and contrition and then reoffending. No doubt alcohol and money issues were key drivers to this cycle of criminality. Further, the Tribunal has no reason to doubt that, at times, the Applicant was indeed sorry for his actions. However, the Tribunal is faced with a lengthy history of repeated breaches of the traffic laws of New South Wales and of assaults on members of his family, and, in particular quite brutal assaults on his first two wives. Further, when the Applicant first appeared before the Tribunal in 2019 he falsely claimed under oath that he did not assault his first two wives and engaged in an exercise of blame shifting and blame minimisation. The Tribunal is not convinced that the Applicant is truly contrite, but, rather gave testimony before this Tribunal that was designed to convince me that he now had the self-awareness and remorse that would enable him to successful reintegrate into the community.

18    As is apparent, and contrary to the applicant’s submission, the Tribunal’s finding that the applicant was not genuinely remorseful was not made solely on the basis of the applicant’s change of position from that taken by him at the first hearing. It was well open to the Tribunal not to accept that the applicant was genuinely remorseful for the reasons it set out.

19    The applicant’s eighth contention was that the Tribunal did not explain in any detail how the applicant would be able to continue communicating with his family and how they would plan their future together if he were to be returned to Korea. The short answer to this contention is that the Tribunal was under no obligation to provide such an explanation. However, I will take this contention as a submission that the Tribunal did not consider the effect upon his family if he were to be removed from Australia. I do not accept this submission. The Tribunal expressly considered the effect upon the applicant’s family if he were to be removed from Australia as part of the fourth other consideration set out in the Direction, namely, the applicant’s links to the Australian community (T[473] to [499]). At T[498(a)], the Tribunal stated:

(a)    the removal of the Applicant from Australia will have a negative impact on his wife, stepdaughter and daughter. The Applicant’s wife and stepdaughter are struggling financially, and the absence of the Applicant has caused them trauma. Further, the Applicant’s daughter has been living in a refuge as she blames her stepmother and stepsister for the breakup of the family and the detention of the Applicant. If the Applicant is removed from Australia it is likely that the family will be permanently broken up…

20    Thus, the Tribunal expressly confronted the issue. Further, at T[499], the Tribunal found that this consideration weighed moderately in favour of the applicant.

21    In summary, none of the points made by the applicant in his oral submissions make good the pleaded grounds of review; nor did they suggest that other, unpleaded, grounds of review were available. The essence of many of the contentions advanced by the applicant was his disagreement with the factual findings made by the Tribunal. It is, of course, no part of this Court’s jurisdiction on judicial review to reconsider the merits of such findings made by the Tribunal.

D.    CONCLUSION

22    For the reasons set out above, the application for judicial review should be dismissed with costs. I will make orders accordingly.

Associate:

Dated:    12 July 2023