Federal Court of Australia

Merican v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 931

ORDERS

THE COURT ORDERS THAT:

1.    The application is dismissed.

2.    The applicant pay the first respondent’s costs of the application, 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    On 3 February 2022, the Administrative Appeals Tribunal affirmed a decision by a delegate of the first respondent (Minister) not to revoke the mandatory cancellation of the applicant’s Class BB Subclass 155 Five Year Return visa pursuant to s 501CA of the Migration Act 1958 (Cth).

2    The applicant, self-represented at the time, filed an originating application and supporting affidavit challenging the decision on 10 February 2022.

3    The applicant now relies on an amended originating application dated 6 April 2023 and alleges the Tribunal committed jurisdictional error on the following four grounds:

1.     The Second Respondent erred in finding that the Applicant refused to be honest, including to the Tribunal, about his drug addiction in assessing the likelihood of him engaging in further criminal or other serious conduct, such error being:

a.     that there was no evidence for the finding;

b.     further or in the alternative, the finding was legally unreasonable;

c.     further or in the alternative, the Tribunal failed to accord procedural fairness to the Applicant in making the finding.

2.     The Second Respondent erred in failing to consider the representation of the Applicant that he abstained from taking drugs while on bail over an 18-month period between January 2017 and August 2018, outside of the custodial environment, in assessing the likelihood of him engaging in further criminal or other serious conduct.

3.     The Second Respondent erred in failing to comply with paragraph 8.2(3) of the Direction No. 90 by failing to consider each of the relevant factors contained therein in assessing the primary consideration regarding family violence.

4.     The Second Respondent acted unreasonably in law in relying on summonsed documents that alleged further acts of family violence, beyond the single incident admitted by the Applicant and with which the Applicant was convicted of an offence, without any finding as to whether those further acts occurred, or any intelligible justification for reliance on those documents without such a finding.

Background

4    The applicant is a citizen of Malaysia. He first arrived in Australia on a student visa in July 2000 and became a permanent resident on 23 July 2007. The applicant was granted the visa on 8 November 2018.

5    The applicant is married, with three children, each of whom is an Australian citizen.

6    The applicant has struggled with substance addiction and has committed offences. He was sentenced to a term of imprisonment of 54 months for a charge of attempted possession of a marketable quantity of drugs. On 13 December 2018, a delegate of the Minister cancelled the applicant’s visa on the basis that he did not pass the character test pursuant to s 501(3A) of the Act.

7    I adopt the summary of the applicant’s criminal history outlined in the applicant’s outline of submissions:

(a)     The first two offences, of “Use methylamphetamine fail to answer bail” and “Possess methylamphetamine”, related to conduct in 2008. The Applicant was fined without conviction for both of those offences.

(b)     The only crime that directly concerned violence was an offence of “Recklessly cause injury” for which the Applicant was convicted on 21 August 2017 and sentenced to a Community Correction order for 12 months and had to perform 50 hours of community work.

(c)     The Applicant was convicted and sentenced to a term of imprisonment of 54 months on 12 September 2018 for “Attempt possess marketable quantity imported border controlled drug/plant”.

8    On 8 January 2019, the applicant requested revocation of the cancellation. The applicant provided a significant amount of material in support of his request, including submissions from his representatives, various statements from him, a number of psychologist reports and various character references.

9    On 10 November 2021, a delegate of the Minister determined not to revoke the cancellation of the applicant’s visa pursuant to s 501CA(4) of the Act. The applicant sought review of the delegate’s decision in the Tribunal.

10    The documents before the delegate of the Minister who determined not to revoke the cancellation were before the Tribunal. The applicant and the Minister each filed and relied on a statement of facts, issues and contentions document (ASFIC and RSFIC respectively) before the Tribunal.

11    The Tribunal held a hearing on 19 and 20 January 2022 via video link. A number of witnesses gave evidence in support of the applicant, including his wife and eldest daughter. The Minister filed closing submissions on 25 January 2022.

12    On 3 February 2022, the Tribunal affirmed the decision not to revoke the cancellation and provided reasons to the applicant on 4 March 2022.

Relevant legislation

13    Ground 3 of the application complains specifically about the Tribunal’s consideration, in relation to the family violence perpetrated, of paragraph 8.2(3) of Ministerial Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA.

14    It is useful to set out paragraph 8.2(3) of Direction 90:

(3)     In considering the seriousness of the family violence engaged in by the noncitizen, 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 understands 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 noncitizen's migration status, should the non-citizen engage in further acts of family violence.

The Tribunal decision

15    After setting out the background to the matter and the applicant’s personal background, the Tribunal set out the applicant’s criminal offending dating back to 2004 and charges while imprisoned in May 2019 at [13]–[14].

16    The Tribunal considered two issues at [15]: whether the applicant passes the character test as defined under s 501(6) and whether there was another reason why the decision to cancel the applicant’s visa should be revoked.

17    It was not in issue between the parties that the applicant had been sentenced to a term of imprisonment for a period totalling more than 12 months. The applicant had been sentenced to 54 months, 30 months without parole on 12 September 2018. At [18], the Tribunal identified that the applicant did not pass the character test as a matter of law. The applicant does not challenge the Tribunal’s finding as to the applicant’s failure to pass the character test.

18    The Tribunal then went on to consider whether there was another reason why the decision to cancel the applicant’s visa should be revoked.

19    At [19] and following, the Tribunal noted guidance is found in Direction 90 and summarised the principles to be applied, including each of the four primary considerations and the four “other considerations”. The Tribunal then addressed each of the primary considerations and weighed them in turn.

20    As the applicant’s grounds of review relate largely to the first and second primary considerations only, namely:

(a)    protection of the Australian community from criminal or other serious conduct (paragraph 8.1) (Protection Consideration); and

(b)    whether the conduct engaged in constituted family violence (paragraph 8.2) (Family Violence Consideration)

I have outlined the Tribunal’s reasoning relating to these two primary considerations in greater detail.

21    The Tribunal considered the Protection Consideration at [31]–[79].

22    An element of the Protection Consideration is the consideration of the likelihood of the non-citizen engaging in further criminal or other serious conduct (see paragraph 8.1(2)). The Tribunal assessed this, including the applicant’s contention that he would abstain from using drugs in the future, from [60].

23    The Tribunal at [61] noted the applicant has asked the Tribunal to take into account that drugs were available in prison and continued to be available to him in immigration detention and to attach some weight to his asserted abstinence in those environments. The Tribunal accepted the evidence that the applicant has abstained from abusing drugs since his arrest in 2017.

24    At [64], the Tribunal acknowledged the applicant had made some efforts to rehabilitate himself, including through drug treatment and counselling.

25    The applicant relied on the report of Mr Fulvio Di Prinzio, a registered psychologist who assessed the applicant at the initial revocation stage. The Tribunal at [67] observed Mr Di Prinzio considered the applicant posed a low risk of reoffending and concluded the applicant “seems to have fully accepted his failures and has not sought to explain or justify the reasons for his substance abuse”.

26    The Tribunal was concerned as to the truthfulness of the applicant’s interactions with Mr Di Prinzio in light of other evidence, including the applicant’s wife’s oral testimony. At [68] the Tribunal stated:

I am concerned however as to whether the Applicant was truthful in his interactions with Mr Di [Prinzio]. For instance, the Applicant’s wife told the Tribunal that the Applicant had a serious problem with methamphetamine dating as far back to 2008 and that this was, at least in part, a central motivating factor in their decision to go and live in Malaysia at that time. The Applicant’s drug use around this time is corroborated by police records which show that the Applicant made admissions relating to the possession and use of methamphetamine in September 2008. However, in his report Mr Di [Prinzio] observed that the Applicant was introduced to drugs by a colleague in 2013-14. In his oral testimony before the Tribunal, the Applicant also initially said that he was introduced to drugs by a colleague whilst working in real estate and door-to-door prospecting in 2013-14. The Applicant’s Statement of Facts Issues and Contentions (SFIC) also states ‘the applicant was introduced to the drug ice through a colleague in around 2014’.

(Emphasis added.)

27    The Tribunal then referred to summons material obtained by Corrections Victoria in [69] and specifically to an assessment report from October 2017 which stated that the applicant began experimenting with amphetamines at age 18 while at university and cannabis at age 16. That assessment report also stated that the applicant’s drug use increased while at university and became “daily upon his arrival in Australia” and that his cannabis use was ongoing.

28    The oral evidence of the applicant’s wife was summarised by the Tribunal at [70], that is: when she and the applicant returned to Australia in 2013, the applicant abstained from drug use for about a year but in 2014 he returned to using drugs and spiralled until his arrest in January 2017. The Tribunal noted that the applicant appeared before a court only nine months after returning to Australia.

29    The Tribunal at [71] then acknowledged that the applicant did return to the family home following his arrest and presented to the sentencing judge for sentencing drug-free. Despite commending the applicant for this, the Tribunal observed it is not surprising there would be times where the applicant refrains from usage for a period given his drug usage spanned two decades.

30    Although acknowledging the applicant’s claimed insight into his drug use and criminal offending, the Tribunal at [72] stated:

I acknowledge the Applicant’s claimed insight into his drug use and criminal offending. However, I consider that the Applicant’s refusal to be honest, including initially before this Tribunal, about his long-standing drug addiction (as set out above) undermines his assertions of having insight into his drug use and criminal offending.

(Emphasis added.)

31    The Tribunal then concluded at [76]–[77] that if the applicant were released into the community, with wider access to drugs and increased stressors, were he to relapse into abusing drugs, he would in all likelihood engage in further criminal or other serious conduct. The Tribunal was not able to conclude that the applicant would be unlikely to engage in further criminal or other serious conduct.

32    The Tribunal considered the Family Violence Consideration at [80]–[89].

33    At [80], the Tribunal set out paragraph 8.2 of Direction 90 and, at [81], explained that paragraph 8.2(1) compels a decision-maker to make a determination about any family violence committed by the non-citizen.

34    The Tribunal outlined at [82]–[85] its findings relating to the 2015 incident which involved the applicant committing a serious family violence offence against his wife whilst in the presence of their children.

35    During the hearing, the applicant’s counsel confirmed the applicant raised no attack on the findings in [80]–[85] and he fully admits and wholly accepted his conviction and expressed his serious remorse.

36    The substantive reasoning of the Tribunal regarding the Family Violence Consideration and the detailed mandatory factors listed in paragraph 8.2(3) of the Direction were set out in the following seven paragraphs:

82.    In November 2015, an Intervention Order was made against the Applicant, prohibiting him from engaging in family violence against his wife and children.

83.     The Respondent notes in its SFIC, relevant to this consideration, that there was an incident which involved the Applicant punching his wife twice in the head, whilst in the presence of their children, causing a split lip and swelling to her jaw.

84.     Summonsed documents from Victoria Police indicate that the attending police members had ‘serious concerns for the safety and welfare of the [victim] and the three children’.

85.     The Tribunal notes that a Final Intervention Order prohibiting the Applicant from engaging in further acts of domestic violence against his wife and children was subsequently issued.

86.     I observe that the Applicant denies engaging in repeated acts of family violence.

87.    However, the Respondent has provided the Tribunal with summonsed documents from Victoria Police records involving the Applicant, his wife and his children. They record the following:

(a)    On 22 June 2016, Victoria Police received a report that the Applicant physically assaulted one of his minor children; and

(b)    On or around June or July 2016, Victoria Police received a report that the Applicant was attending a specified address and committing family violence towards his wife.

(Footnotes omitted.)

37    At [88], the Tribunal found there was “sufficient material” before the Tribunal to conclude that the Family Violence Consideration weighed very strongly against revocation of the cancellation of the applicant’s visa.

38    The Tribunal also considered the best interests of the applicant’s children and the children of the applicant’s close friend, the expectations of the Australian community, international non-refoulement obligations, the extent of impediments the applicant would face if removed, the impact on victims, and the applicant’s links to the Australian community.

39    The Tribunal considered the best interests of the minor children from [90]–[129]. The Tribunal referred to its consideration of the applicant’s “history of domestic violence” and stated this weighed against revocation. Further, the Tribunal “observe[d] that the applicant is said to have assaulted his eldest daughter, who was aged eight years of age at the time” and found that this also weighed against revocation. The Tribunal concluded that the best interests of the minor children weighed strongly, but not determinatively, in favour of revocation.

40    From [130]–[141], the Tribunal considered the expectations of the Australian community. The Tribunal concluded this primary consideration weighed strongly in favour of non-revocation.

41    Finally, the Tribunal considered the other considerations from [142]–[179] including the extent of impediments on the applicant if removed, any impact on his wife and children as the victims of domestic violence and his links to the Australian community.

42    At [180] the Tribunal observed that it did not consider the total weight attributable to the other considerations outweighs that attributed to the primary considerations.

43    The Tribunal ultimately did not exercise the discretion to revoke the mandatory cancellation of the applicant’s visa (at [181]).

Ground 1 – adverse credibility finding regarding lack of honesty

There was no evidence for the finding

44    The applicant’s primary submission on the first ground is that there was no evidence the applicant had refused to be honest to the Tribunal or at all, as found at [72] of the Decision. The applicant submitted that in making the finding at [72], the Tribunal committed jurisdictional error on three bases. First, there was no evidence which supported that finding. Second, it was legally unreasonable for the Tribunal to make that finding, and third, the finding lacked procedural fairness.

45    In oral submissions the applicant’s counsel submitted the Tribunal’s use of the phrase “refusal to be honest” at [72], was “essentially an express finding of lying and an intention to do so”, which counsel described as introducing an intention to lie to the Tribunal. Thus it was important to consider whether there was any evidence to support such a finding.

46    The applicant submits there was no evidence for the Tribunal to conclude that the applicant was untruthful:

(a)    in his interactions with Mr Di Prinzio (the psychologist); and

(b)    in saying he was “initially” introduced to drugs or “ice” by a colleague whilst working in real estate and door to door prospecting in 2013–2014.

47    The applicant submits the evidence does not support a refusal to be honest about his “long-standing drug addiction (as set out above)”. Indeed, it shows the applicant’s openness and honesty in regards to previous drug use. In addition to the ASFIC, that evidence comprises:

    the applicant’s oral evidence at the hearing freely admitting to recreational use of cannabis and MDMA while at university in the United Kingdom and the smoking of marijuana;

    in relation to his drug use in Australia, admitting “my drug addiction began in 2014”;

    the applicant’s closing submission stating “I had previously used drugs in recreational settings and had my first encounter with police in 2008 for possession and use of methamphetamines”; and

    the particular police report in regards to the 2008 conduct expressly noting that the applicant made admissions before the police at that time about possession and use of methamphetamine.

48    The applicant submitted this was consistent with his wife’s evidence to the Tribunal: admitting the applicant used MDMA in university either in front of or with her, that the applicant took “ice, meth” and “ecstasy” prior to 2014 while in Australia, and that the family had moved to Malaysia for a number of reasons, one of which was to help the applicant stop using drugs. She also stated the applicant’s “drug habit, back in 2008, 2009, is quite – well, it’s much milder than in 2014, 2015”.

49    The applicant accepts that his ASFIC does not mention methamphetamine use prior to 2014. However, submits the ASFIC reasonably focusses on conduct the applicant engaged in from 2014 onwards, as the particular offence that engaged the character test occurred then.

50    The applicant accepts, at its highest, he did not expressly mention his previous drug use in his ASFIC and instead stated that he was introduced to the drug “ice” by a colleague in around 2014.

51    The Minister submits the Tribunal’s finding at [72] must be read with the reasons for reaching the conclusion contained at [68], specifically noting the focus at [68] is whether the applicant was truthful in his interactions with Mr Di Prinzio and his serious problem with methamphetamine use.

52    Although accepting the Tribunal refers to drugs more generally at [72], the Minister submits read fairly that reference to his “longstanding drug addiction” is to serious and previous use of methamphetamines.

53    The Minister submits there was obviously more than a “skerrick” of evidence to support a conclusion that the applicant had refused to be honest about his drug use to Mr Di Prinzio and initially before the Tribunal. Nor could it be described as a conclusion which no other decision-maker could make or that was outside the area of decisional freedom accorded to the Tribunal. The Minister pointed to the evidence as outlined at [68]:

    the applicant’s wife’s evidence before the Tribunal that the applicant had a serious problem with (ice) methamphetamines dating as far back as 2008, and that that was, at least in part, a central motivating factor in their decision to go and live in Malaysia at that time; and

    the police records corroborating the applicant’s admissions relating to the possession and use of methamphetamines in September 2008.

54    That evidence is to be contrasted with the applicant’s instruction to Mr Di Prinzio, as recorded in his report under the heading “Relevant Background”, which describes the applicant recounting his birth, marriage and children, his childhood, schooling, university, career and then records:

Mr Merican described that it was at this time that he was introduced to drugs by a colleague in about 2013-14 (as best as he can recall). He explained that he was beginning to feel flat and lacking drive, and was told by this friend that he would be able to perform better and earn more money with methamphetamines (MA) in his system. Mr Merican described that he initially felt “incredible” on the drug, having a lot more energy to fulfil his objectives at work and be able to provide for his family.

(Emphasis added.)

55    As the Minister submits, the applicant’s initial evidence before the Tribunal failed to disclose his methamphetamine use in 2008. When asked about his return to Malaysia in 2009, the applicant stated he returned to Malaysia for four years to complete a search engine optimization or marketing course, without any reference to his drug use or rehabilitation.

56    In the context of questions about his employment with the real estate company where he was “introduced to drugs” and the related “period of criminality”, the applicant stated “my drug addiction began in 2014”.

57    Later, the applicant agreed to the chronology of his drug use put to him in cross-examination which failed to disclose his use of methamphetamines in 2008:

Counsel:     Let me ask you a question. You’re not the first person, sir, that has come before this tribunal with a history of drug use/abuse. What you’ve told the tribunal is that you got into more serious drugs. You’ve had that past/background with cannabis and the like, but you got involved in the more serious drugs, as I understand it, around 2014 when you work in real estate. You’re doing prospecting. It’s suggested to you that methamphetamines will give you some sort of extra assistance with your prospecting. Have I got it all correct so far?

Applicant:    Yes sir.

Consideration

58    I find that there was evidence to support the Tribunal’s finding the applicant refused to be honest about his long-standing drug addiction with Mr Di Prinzio, and initially with the Tribunal: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41; 395 ALR 403 at [17].

59    Although accepting the applicant was candid about his prior use of cannabis and MDMA (ecstasy) once it was put to him at the hearing, I am of the opinion the Tribunal at [72] in referring to the applicant’s “long standing drug addiction” was more particularly concerned with his addiction to methamphetamines which, on the applicant’s own admission to the police, dated as far back as 2008 (rather than commencing in 2013–14 as asserted to Mr Di Prinzio and in the ASFIC). This interpretation is reinforced in circumstances where the evidence was clear the applicant’s drug addiction was with methamphetamines (ice) as opposed to cannabis and MDMA which the applicant used more recreationally.

60    As recorded in police reports, the applicant admitted to his possession and use of methamphetamine at the time in 2008 wherein a search discovered methamphetamines in his vehicle. I accept the applicant was honest in 2008 when he made the admission as to use and possession of methamphetamines.

61    However, the applicant did not volunteer to Mr Di Prinzio or the Tribunal that he had problems with methamphetamine use prior to his asserted introduction to methamphetamines in 2013–14 (or indeed any details of his earlier use of cannabis and MDMA). When such earlier use was put to him during the Tribunal hearing, the applicant did not deny the earlier use, but if not put to him during the hearing, the Tribunal would have been none the wiser.

62    I find that the applicant’s failure to mention his previous methamphetamine use in the ASFIC, the applicant’s initial evidence to the Tribunal in maintaining that he was “introduced” to methamphetamines by a colleague in 20132014 and his explanation, as recorded by Mr Di Prinzio, about how he “initially felt” on ice depicts an altered chronology of events to that which subsequently emerged and was accepted by the applicant at the hearing. On that altered chronology the applicant had problems with methamphetamine some five years prior to the date he alleged that he was introduced to methamphetamine.

63    In light of the evidence given by the applicant’s wife and the applicant’s admissions in the contemporaneous police records that were accepted by the Tribunal, it was open for the Tribunal to find that the applicant had, by omitting his earlier methamphetamine use, not been truthful with Mr Di Prinzio or in his initial evidence to the Tribunal.

The finding was legally unreasonable

64    Alternatively, if, as I have found, there is evidence underlying the Tribunal’s finding, the applicant submits the Tribunal’s finding was legally unreasonable. There was no “logical connection between the evidence and the inferences or conclusion drawn” to find, or no “evident and intelligible justification” for finding, in effect, that the applicant was a liar: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [135] (Crennan and Bell JJ); Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [76] (Hayne, Kiefel and Bell JJ).

65    I consider the Tribunal’s conclusion at [72] to have been reached on the basis of the evidence outlined above. For the same reasons as I have set out under the previous heading, I am not satisfied the finding was so unreasonable that no reasonable authority could ever have come to it: Li at [28] (French CJ).

No procedural fairness

66    Further and in the alternative, the applicant submits he was not provided with an opportunity to respond to the suggestion that he had not been truthful or had refused to be honest to the Tribunal. The applicant submits this constitutes a breach of procedural fairness and amounts to jurisdictional error.

67    The applicant submits that he was not on notice that the Tribunal might make a finding that the applicant had lied to it. The applicant further submits at no time was the applicant provided with an opportunity to respond to the suggestion that he had not been truthful with Mr Di Prinzio or refused to be honest to the Tribunal.

68    The Minister submits that the applicant was on notice that the timing of when he developed a serious methamphetamine problem was in issue. The Minister submitted that the applicant was put on notice about the inconsistencies in his evidence as to the timing of his problems with methamphetamine, and in particular, how his disclosures to Mr Di Prinzio squared with other evidence in the proceeding, upon the filing of the RSFIC in advance of the Tribunal hearing, which provided:

[T]he Respondent submits that the Applicant has not been fully transparent with Mr Di Prinzio. For example, at page 3 of his report, Mr Di Prinzio sets out that the Applicant describes that he was introduced to drugs by a colleague in about 2013-2014. However, police records show that the Applicant was arrested and made admissions to the possession and use of methylamphetamine as early as 9 September 2008. Such evidence is also inconsistent with assertions by the Applicant in his ASFIC that “up until mid-2014, which is when the drug addiction took hold, the applicant was an upstanding member of the community with nothing but one traffic infringement for speeding”.

(Emphasis added.)

69    The Minister also observed that during the hearing propositions were put to the applicant and to his wife, in the presence of the applicant, about the inconsistences in his evidence of the timing of his methamphetamine use. After the applicant’s wife identified the applicant to have used ice in 2008, the following propositions were specifically put to her:

Mr Merican has told the tribunal today, that his serious methamphetamine use, I guess, began around 2014. From what you're saying to us now, that doesn't sound like it is the case. It sounds to me that he might have had serious methamphetamine use issues prior to that date

…

Well, Mr Merican told the tribunal that, for want of a better word, his serious methamphetamine use commenced at the encouragement of a colleague at the real estate agency in 2014.

70    The Tribunal also asked the applicant questions about the timing of his evidence. And then the Tribunal asked the applicant’s wife, in the presence of the applicant (who was self-represented), the following:

So, my question is; Mr Merican has told the tribunal today that his, for want of better word, serious methamphetamine use commenced at the encouragement of a colleague at the real estate agency in around 2014. What I would like you just to confirm for me is that it appears to be your evidence that this is not correct, but that he had serious problems with methamphetamine use prior to that date, at least around 2008 or 2009? Is that right?

71    The applicant’s 2008 admissions to police as to his possession and use of methamphetamine were identified as a “key fact” in the table at the start of the RSFIC. I consider that the Minister had fairly put it to the applicant that he had not been transparent with Mr Di Prinzio in describing that his colleague had introduced him to drugs in 2013–14. The RSFIC also squarely raised the inconsistency with the assertions in the ASFIC, affording the applicant an opportunity to explain the circumstances in which he had failed to mention the 2008 possession and use of methamphetamine.

72    The commencement of the applicant’s serious methamphetamine problem, and the inconsistency between the applicant’s asserted commencement in 2013–14 and his earlier admissions as to use and possession in 2008, were clearly matters in issue by the time of the filing of the RSFIC. That position was only reinforced by the questions put to the applicant and his wife during the hearing, I find that the applicant was on notice before and during the hearing that the timing of when he developed a serious methamphetamine problem was in issue. The applicant was not denied procedural fairness.

Ground 2 – failure to consider representation of abstinence from drugs during bail period

73    Paragraph 8.1.2(2)(b) of the Direction expressly states that, in considering the likelihood of the applicant engaging in further criminal or other serious conduct, the Tribunal was to “give weight to time spent in the community since the most recent offence”.

74    In assessing that likelihood, the applicant alleges the Tribunal failed to engage with the specific representation by the applicant that he had abstained from using drugs while spending a significant period of time (18 months) in the community. I understand “drugs” in this context to refer to methamphetamines, as the evidence was that the applicant had not stopped daily cannabis smoking during that period.

75    The applicant submits that, at most, the Tribunal accepted the evidence that the applicant had abstained from abusing drugs since his arrest in 2017 and “acknowledge[d]” that the applicant had returned home after his arrest and “by all accounts presented to the sentencing judge for sentencing drug-free”.

76    The applicant’s counsel reiterated in oral submissions that his submission did not attempt to quibble with the merits of the decision. Rather, the Tribunal’s comment that it “is not surprising that there would be times such as this where the applicant refrains from usage for a period” indicated that the Tribunal misunderstood the representation being made—that the applicant’s arrest was a turning point and, in addition to the rehabilitative efforts the applicant made, the period he was drug free on bail was strongly indicative that he was a low risk of re-offending.

77    The Minister submits that the Tribunal considered the applicant’s representations and referred to [61] of the Tribunal’s reasons where the Tribunal accepted “the evidence that the applicant has abstained from abusing drugs since his arrest in 2017” and then at [71]:

For completeness, I acknowledge that the Applicant did return to the family home following his arrest and by all accounts presented to the sentencing judge for sentencing drug-free. Whilst the Applicant ought to be commended for this, I am [sic] observe that the Applicant’s drug usage spans two decades and, as such, it is not surprising that there would be times such as this where the Applicant refrains from usage for a period.

78    The statutory task under s 501CA(4)(b)(ii) requires consideration of whether there is “another reason” to revoke the visa cancellation; where a reason is sufficiently identified and advanced in the representations, as is the case here, then the discharge of the statutory task requires it to be considered: BCR16 v Minister for Immigration and Border Protection (2017) 248 FCR 456 at [62], [63], [72], per Bromberg and Mortimer JJ.

79    It is not for this Court to scrutinise the substantive merits of the Tribunal’s decision. As observed in Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; 400 ALR 417 at [24] adopting and adapting what Kiefel J (as her Honour then was) said in Tickner v Chapman (1995) 57 FCR 451 at 495:

[T]he 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.

80    In this case the Tribunal accepted the fact the applicant had not used drugs since his arrest in January 2017 at [61]. The Tribunal acknowledged that the applicant had made some efforts to rehabilitate himself including through drug treatment and counselling. At [72] the Tribunal acknowledged the applicant’s claimed insight into his drug use and criminal offending. However, the Tribunal considered that the applicant’s initial failure to disclose the true length of his drug addiction undermined his assertions of having insight into his drug use and criminal offending.

81    It was open to the Tribunal to have regard to the applicant’s representation that he had abstained from using drugs while spending significant time (18 months) in the community, that his arrest was a turning point and, in addition to the rehabilitative efforts the applicant made, the period he was drug free on bail was strongly indicative that he was a low risk of re-offending, and ultimately find that representation unpersuasive at [71].

82    The Tribunal was troubled by the applicant’s failure to disclose the true length of his drug problem until he was confronted with the inconsistency, and considered that failure to undermine the applicant’s assertions of having insight into his drug use and criminal offending and consequent representation as to his low risk of re-offending. The Tribunal’s later finding that “if the Applicant were released into the community, with wider access to drugs and increased stressors, were he to relapse into abusing drugs, he would in all likelihood engage in further criminal or other serious conduct” was the product of a reasoning process that acknowledged and considered the applicant’s representation. Ground 2 fails.

Ground 3 – failure to comply with Direction

83    The applicant submits the Tribunal was under a statutory obligation to apply the Direction pursuant to s 499(2A) of the Act and failed completely to comply with paragraph 8.2(3), resulting in jurisdictional error.

84    The applicant submits that it was mandatory for the Tribunal to have regard to the Family Violence Consideration as set out in paragraph 8.2 of the Direction. Specifically, paragraph 8.2(3) sets out various factors that had to be considered by the Tribunal, including the frequency of the applicant’s conduct, the cumulative effect of repeated acts of family violence, rehabilitation efforts including the extent that the person accepts responsibility and understands their behaviour, and whether there had been reoffending. The applicant, although admitting the seriousness of his family violence offence, points to the critical fact that he had only been convicted of a single act of family violence against his wife, and that the incident and its seriousness occurred in the context of his drug addiction.

85    Paragraph 8.2(2)(b) of the Direction directs the Tribunal to consider information or evidence from independent and authoritative sources indicating the applicant had perpetrated family violence. The applicant submits if, as the Tribunal purported to do, there was a reliance on the two Victoria Police records to find other incidents of family violence, then the Tribunal was required to set out its reasoning associated with the paragraph 8.2(3) factors given it was essential to consider the frequency of family violence, any increasing seriousness, and the cumulative effect of repeated acts. The applicant submits that there was no attempt by the Tribunal to do so other than recite the bare facts of the Victoria Police reports.

86    The applicant submits he made the following representations regarding each of the paragraph 8.2(3) factors and that the Tribunal failed to engage with those representations.

    At [37] of the ASFIC, the applicant explains he has not engaged in repeated acts of family violence:

In regard to Paragraph 8.2 (3)(a) “the frequency of the non-citizen’s conduct and/or whether there is any trend of increasing seriousness”, the applicant has not engaged in repeated acts of family violence and there has been no observable trend of increasing seriousness in the applicant’s family violence.

    As to paragraph 8.2(3)(b), the applicant at [38] considers the cumulative effect of his family violence to be non-existent as he has not engaged in repeated acts of family violence.

    As to his rehabilitation (paragraph 8.2(3)(c)), the applicant has accepted responsibility for the conduct involving family violence, has acknowledged the incident and has expressed shame for his wrongful actions against his wife. The applicant has also undertaken drug addiction treatment to address his substance abuse disorder that contributed to the family violence and completed a Domestic Abuse & Violence Awareness Diploma.

    At [39], the applicant submits only that he has not reoffended since or engaged in acts of family violence since being formally warned.

87    The Minister submits that each of the applicant’s representations as to the factors in paragraphs 8.2(3)(a), (b) and (d) were premised on the proposition that the applicant had only engaged in a single act of family violence. That proposition was acknowledged by the Tribunal at [87] (wherein footnote 59 refers to [37] of the ASFIC) but was not accepted. The Minister submits that no inference should be drawn that representations were not considered where they rested on a factual premise which was rejected.

88    The applicant’s counsel submitted that footnote 59 should not be read as the Tribunal engaging with the denial of family violence.

89    As to paragraph 8.2(3)(a), although accepting the Tribunal makes no express reference to whether there is any increasing seriousness to the family violence offending, the Minister submits the Tribunal had regard to the frequency of the family violence offending by setting out the incidents separately with the dates of the reports in Victoria Police material. The Minister submits the inference is that as the conviction is clearly more serious than the two matters which followed the incident giving rise the conviction, the Tribunal did not consider this consideration to be relevant as there was no increase in seriousness of the family violence.

90    As to the cumulative effect of family violence offending (paragraph 8.2(3)(b)), the Minister submits the Tribunal considered this in its reasons relating to the best interest of minor children at [108]:

There is, however, no direct evidence that the impact of the Applicant’s prior conduct has caused any detrimental effect on the wellbeing of any of the children identified above. Notwithstanding this, I consider that the Applicant’s criminal offending and subsequent periods of separation from his children cannot have been beneficial to them. …

91    The Minister also points to [123] and [126] of the Tribunal’s reasons where the Tribunal observed that the applicant’s family violence history at least in part appeared to have occurred in the presence of the applicant’s children, and one incident allegedly involved the applicant assaulting his eldest daughter (aged 8 at the time).

92    As to paragraph 8.2(3)(c), the Minister submits any rehabilitation achieved by the applicant (at [39] of the ASFIC) was considered by the Tribunal as part of another primary consideration, being the protection of the Australian community. The Minister refers to the following paragraphs in the Tribunal’s reasons:

(a)    at [34], the Tribunal noted the applicant has acknowledged his family violence offending, and noted that he had otherwise denied engaging in repeated acts of family violence; and

(b)    at [64], the Tribunal acknowledges the applicant’s efforts to rehabilitate himself, including through drug treatment and counselling noted in the ASFIC as well the applicant’s completion of the “being a dad” program and “Skating on Ice”.

93    As to paragraph 8.2(3)(d), the Minister accepts that the Tribunal makes no reference to the applicant re-offending since being formally warned, but submits that is because it is not a relevant factor in this case.

94    At [80] of its reasons, the Tribunal sets out paragraph 8.2 of the Direction in full, indicating that it was cognisant of the task required by that consideration. The Minister accepted that the Tribunal’s reasons, under the heading “Primary Consideration 2: Family Violence” were brief. But submitted the brevity was explicable, because many of the considerations which occurred under that heading were also directly relevant to other considerations. The Tribunal’s reasons tended to give express consideration to those factors under other headings, rather than repeating the facts and reasoning. The Minister submitted that the avoidance of repetition did not mean that matters were not “considered” when the Tribunal came to its conclusion that the family violence consideration weighed very strongly against revocation.

95    Such an approach accords with authority. In Bale v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 646, Perram J held at [26] that “where a matter is relevant to two or more mandatory relevant considerations, a decision-maker is not usually required to take the matter into account repetitiously”. In RZSN v Minister for Home Affairs [2019] FCA 1731, Anderson J held at [60] that it was not fatal to the valid exercise of the decision-maker’s jurisdiction to fail to consider a relevant matter under its allotted heading. The question whether the decision-maker has lawfully considered, construed and applied such a consideration is a matter to be inferred from the decision-maker’s reasons as a whole. Ground 3 fails.

Ground 4 – unreasonableness regarding consideration of family violence

96    Grounds 3 and 4 are both related to the Tribunal’s reasoning regarding the Family Violence Consideration.

97    The Tribunal at [87], in the context of noting the applicant’s denial that he had engaged in repeated acts of family violence, noted the existence of two Victoria Police records of family violence. The applicant submits that, despite there not being an express finding, it is clear the Tribunal proceeded, on the basis of “sufficient material” before it to conclude the Family Violence Consideration weighed strongly against revocation at [88] and [89].

98    The applicant submits the Tribunal’s reliance on the Victoria Police reports of the alleged family violence was legally unreasonable. The applicant contends the Tribunal simply noted the reports, and ignored or failed to assess critical evidence that undermined their probative value. The Tribunal then proceeded to weigh a critical primary consideration against the applicant without any sufficient explanation.

99    The two police reports were put to the applicant in cross-examination. He strenuously denied engaging in any further family violence against his wife or his daughters.

100    The applicant’s wife gave evidence denying that there had been other instances of family violence, and that the incident for which he was convicted was “the only incident that he’s been violent towards me”. The applicant’s wife was not aware of any other family violence incidents involving her children. The applicant’s eldest daughter, the subject of the second report, was not asked, and did not give evidence, about the second report.

101    The applicant submits there is no evident or intelligible justification for reliance on the Victoria Police reports in relation to the Family Violence Consideration without analysis or assessment of their probative value. Further, the applicant submits that there is no evidence that the Tribunal considered the applicant’s or his wife’s response to the police reports.

102    The applicant draws an analogy with the facts of Nafady v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1434. That case involved the exercise of the Minister’s personal discretion not to revoke the cancellation of a visa in circumstances where the applicant had six criminal charges against him (during the period 30 March 2015 and 21 May 2015). On 28 May 2015, Mr Nafady’s student visa was cancelled on the basis of those criminal charges. Mr Nafady was later found guilty of four charges of rape. On appeal, the convictions were quashed. The Minister nevertheless had regard to the conduct that was alleged to have occurred and determined the applicant did not meet the character test.

103    At [60] of Nafady, Logan J observed:

[Th]e Minister, as an administrative decision-maker, was entitled to act on material such as statements in a police report. However, for reasons also already given where a challenge was made in a representation in relation to conduct in such a report, the Minister was obliged to understand and evaluate that representation. This the Minister did not do in relation to the alleged conduct the subject of the charge which featured in a police report but which was ultimately withdrawn.

104    At [62], Logan J noted that reasonable satisfaction in administrative decision-making that past conduct has occurred requires more than speculation or inability to exclude a possibility that the conduct has occurred. At [63], Logan J continued:

The point really is that, faced with competing accounts as to whether alleged criminal conduct occurred, one an emphatic denial and the other a hearsay statement in a police report, it was incumbent on the Minister, if he were to use such past conduct as a stepping stone to why it was that there was a risk that Mr Nafady would engage in criminal conduct in Australia in the future, to expose his reasoning by reference to material reasonably admitting of that conclusion, that, nonetheless, such conduct had, to his reasonable satisfaction, occurred.

105    The Minister submits it was clear the Tribunal rejected the applicant’s denial of engaging in further family violence incidents. Further, according to the Minister, the Tribunal did not need to expressly deal with the applicant’s wife’s evidence, because it was not inconsistent with what was contained in the police reports. Her evidence was that she was not aware of the allegations in relation to her daughter and that the applicant was otherwise not violent to her.

106    The Tribunal further set out the salient features of the material relied on, being summons material from Victoria Police. Relying on paragraph 8.2(2)(b) of Direction 90, the Minister submits that police internal records are “information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence”.

107    The Minister further says the Tribunal was aware that the reports disclose allegations, but was prepared to afford weight to them. The Tribunal when describing each incident at [87] states “Victoria Police received a report”. The Minister also refers to [126] where the Tribunal says “the Applicant is said to have assaulted” to demonstrate the Tribunal was aware that the police reports rise no higher than allegations.

108    The Minister submits it was also open to the Tribunal to find that the Family Violence Consideration should weigh heavily against the applicant, relying on the applicant’s conviction.

Consideration

109    The task of the court, where it has been alleged that a decision is legally unreasonable, is to ask whether the exercise of power by the decision-maker was beyond power because it was legally unreasonable: Li at 351-352, [30].

110    Direction 90 makes clear that the Australian Government considers family violence to be a serious issue to be taken into account in any consideration of whether to revoke a mandatory cancellation pursuant to s 501CA. Paragraph 8.2(1) of Direction 90 states that the Australian Government has serious concerns about conferring the privilege of entering or remaining in Australia to non-citizens who engage in family violence.

111    Not only is family violence committed by the non-citizen a stand-alone primary consideration (paragraph 8.2), each of the other three primary considerations expressly refers to family violence as a relevant factor to be considered (see paragraphs 8.1.1(1)(a)(iii), 8.3(4)(g) and 8.4(2)(a)). This is consistent with the attitude of the Australian community towards family violence.

112    Early in its reasons the Tribunal referred to paragraph 5.2 of the Direction which is designed to “provide the framework within which decision-makers should approach their task”. The principles articulated in paragraph 5.2 of Direction 90 which provide the framework within which decision-makers are to approach their task of deciding whether to revoke a mandatory cancellation include, at (5) an express reference to family violence, noting that the inherent nature of certain conduct such as family violence 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.

113    During the hearing, the applicant’s counsel raised the fact that the Tribunal’s analysis of the Family Violence Consideration was complete in seven paragraphs of substantive reasoning. In addition to those paragraphs, it is clear, the applicant’s domestic violence incident was considered at various points throughout the Tribunal’s reasoning, including in the context of the protection of the Australian community (paragraph 8.1.1(1)).

114    The Tribunal also considered the “Other Considerations” listed at paragraph 9 of Direction 90, which includes the impact of the ss 501 or 501CA decision on victims. The Tribunal from [162] accepted the applicant’s wife and children, who were each the victims of domestic violence committed by him, would suffer hardship if the applicant was removed from Australia. The Tribunal’s reasons relating to this consideration fortifies my opinion that the Tribunal appropriately considered the applicant’s wife’s evidence. No weight was ultimately placed on this consideration, though the Tribunal quoting JSMJ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 4183 observed that “there is nothing unusual about a victim of domestic violence standing by the perpetrator”.

115    The Tribunal observed at [34] that the applicant had acknowledged family violence offending in the form of smashing the back window of a residence and punching his wife twice to the head whilst she was telephoning Victoria Police. This incident took place while the applicant’s children were home and caused the applicant’s wife a split lip and swelling to the jaw.

116    Cognisant of the Direction’s emphasis on family violence as a serious issue, the Tribunal was clearly concerned by the serious incident of family violence that the applicant accepted had taken place. The Tribunal noted that summonsed documents from Victoria Police indicated that the police members attending that incident had “serious concerns for the safety and welfare of the [victim] and the three children”. The Tribunal repeats the details of the assault on the applicant’s wife at [83], noting that in November 2015, an Intervention Order was made against the applicant, prohibiting him from engaging in family violence against his wife and children, and at [85] that a Final Intervention Order prohibiting the applicant from engaging in further acts of domestic violence against his wife and children was subsequently issued.

117    The Tribunal observed that the applicant denied engaging in repeated acts of family violence, but referred to documents produced from Victoria Police records which recorded two reports of the applicant committing further acts of family violence. It is to be inferred from the Tribunal’s reference to these documents immediately following its observation of the applicant’s denial, that the Tribunal did not accept the applicant’s denial. The incidents detailed in the reports were not more serious than the acknowledged incident, and other than one reference to the contents of one of the reports at [126], the Tribunal does not discuss them further, instead its considerations focussed on the accepted act of family violence.

118    It is clear from the way that the Tribunal referred to the Victoria Police records that it was aware that they were contemporaneous Victoria Police records which describe allegations or reports of family violence made to Victoria Police by other people. At [126], in the only reference to the contents of the reports outside [87], the Tribunal observes that the applicant “is said to have assaulted his eldest daughter”.

119    When the Tribunal sets out the applicant’s history of criminal offending, dating back to 2004 at [13], it included the charge of recklessly causing injury, which concerned the domestic violence incident. The incidents the subject of the two Victoria Police records were not identified by the Tribunal as forming part of the applicant’s past criminal offending.

120    In circumstances where the two Victoria Police records were the only matters the Tribunal had regard to its consideration of the Family Violence Consideration, the Tribunal may have acted beyond power. However, that was not the case here.

121    The Tribunal relied on the accepted family violence incident which gave rise to the applicant’s conviction in coming to its conclusion that the consideration weighed very strongly against revocation. That was a serious incident of family violence, for which a Final Intervention Order was granted, involving the applicant punching his wife twice to the head, in the presence of their children, and causing her a split lip and swelling to her jaw. Given the emphasis in the Direction, it was well within the bounds of reasonableness for the Tribunal to weigh that significant act of family violence heavily against the applicant.

122    Although noting the rehabilitative efforts listed by the applicant, including the “dealing with anger” program, a program of instruction in relation to domestic abuse and violence awareness, the “being a dad” program and “Skating on Ice”, the Tribunal did not possess a level of positivity in relation to the applicant’s prospect of rehabilitation.

123    The Tribunal sufficiently considered each of the factors in paragraph 8.2(3). In these circumstances the Tribunal was justified to conclude in relation to the Family Violence Consideration that there was sufficient material before the Tribunal to conclude that consideration weighed very strongly against revocation.

Conclusion and disposition

124    In these circumstances, the application must be dismissed in relation to the four grounds articulated.

125    Costs will follow the event, and will be ordered to be paid by the applicant to the first respondent as agreed or assessed.

Associate:

Dated:    9 August 2023