Federal Court of Australia

NRWQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 950

ORDERS

THE COURT ORDERS THAT:

1.    The originating application dated 5 May 2023 is dismissed.

2.    The name of the first respondent is amended to read “Minister for Immigration, Citizenship and Multicultural Affairs”.

3.    The applicant pay the first respondent’s costs of the application, to be taxed on a standard basis unless otherwise agreed.

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

REASONS FOR JUDGMENT

BUTTON J:

Introduction

1    The applicant is a stateless Rohingya refugee from Myanmar, who arrived in Australia by boat in May 2013. He seeks judicial review of the decision of the Administrative Appeals Tribunal (the Tribunal) dated 24 August 2022 (TR), affirming the decision of the delegate of the first respondent (the Minister) to refuse him a Safe Haven Enterprise (Temporary) Protection (Class XE) visa.

2    The Tribunal concluded that the applicant failed the character test pursuant to s 501(6)(d)(i) of the Migration Act 1958 (Cth) (the Act), which provided that a person does not pass the character test if (relevantly):

in the event the person were allowed to enter or remain in Australia, there is a risk that the person would:

(i)    engage in criminal conduct in Australia …

3    The Tribunal then considered that, the discretion to refuse a visa on character grounds having been enlivened, it should exercise the discretion to affirm the delegate’s decision to refuse to grant a visa to the applicant.

4    The applicant advances one ground of review, framed as follows in his amended originating application:

The Tribunal constructively failed to exercise jurisdiction by failing to engage with the Applicant’s representations that his desire to re-establish a relationship with and provide for his children lowered his risk to the Australian community of committing further offences or engaging in other serious conduct.

Particulars

a.     The Applicant made claims, substantiated by evidence, that his risk of future offending (per Clause 8.1.2 of Direction 90) was diminished by his motivation to provide for and re-establish a relationship with his children.

b.     The Tribunal failed to consider that claim. It discussed the Applicant’s relationship with his children only by reference to their best interests (per Clause 8.3 of Direction 90) and not by reference to whether the Applicant’s desire to provide for and re-establish contact with them would be a protective factor against re-offending.

c.     In the premises, the Tribunal fell into a material error of law.

5    The applicant did not contend that the Tribunal’s conclusion that the applicant failed the character test was affected by jurisdictional error. Rather, his contention was that, in exercising its discretion to refuse him a visa, the Tribunal failed to engage with his representation that his desire to re-establish a relationship with, and provide for his children, lowered the risk he posed to the Australian community of committing further offences or engaging in other serious conduct.

The Tribunal’s reasons

6    As noted, the Tribunal concluded that it was not satisfied that the applicant passed the character test “because there is more than a minimal or remote chance that the applicant will re-offend”: TR [41]. The Tribunal reached that conclusion having set out and considered the nature and circumstances of applicant’s offending, the extent to which the applicant had participated in a Men’s Behaviour Change Program (in assessing the issue of reform) and the applicant’s expressions of remorse, which the Tribunal was not satisfied were genuine having regard to its assessment of the applicant’s evidence before the Tribunal, as well as an expert psychiatric report of Dr Zimmerman, which concluded that the applicant presented a low risk of future violent offending. In the Tribunal’s assessment, there was “a real albeit low risk of future family violence”: TR [40].

7    Direction No 90 — Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction 90) is a direction made by the responsible Minister under s 499 of the Act. The Tribunal was required to, and did, apply Direction 90 in considering the application before it. Having concluded that the applicant failed the character test, the Tribunal proceeded on the basis that its discretion was enlivened to refuse the grant of a visa to the applicant. The Tribunal set out the relevant features of Direction 90 and proceeded to address each of the “primary considerations” set out in Direction 90, and the “other considerations” set out in that direction.

8    The Tribunal summarised the applicant’s offending in its reasons: TR [21]–[26]. That offending occurred in circumstances where the applicant’s wife formed a relationship with a person living in their home as a boarder, referred to as AH. The applicant has not contended any aspect of the Tribunal’s summary is inaccurate. The offending was as follows:

21.     On 25 May 2017, the applicant was convicted of an unlawful assault on his wife which was committed on 10 March 2017 and three related contraventions of family violence intervention orders. A community correction order was made requiring him to be supervised for 12 months and to undertake a mental health assessment and an offending behaviour program.

22.     On 26 October 2018, the applicant was convicted for intentionally causing injury to his wife’s new partner (who I will refer to as AH), contravening a personal safety intervention order and a family violence intervention order and for intentionally damaging property. He was sentenced to a term of imprisonment for 123 days.

23.     With respect to the 2017 offending, the following events were not disputed. In contravention of a family violence intervention order served on 16 February 2017, the applicant attended his wife’s home on 10 March 2017. They argued and his wife became scared and ran outside with her son. The applicant attempted to pull her back inside by grabbing her arms with his hands. A passer-by intervened and approached the applicant and took him to the ground and restrained him. The applicant walked towards a vehicle and drove away. The passer-by contacted police to report the matter while reassuring the wife.

24.     On the following day the applicant attended the home again in contravention of the family violence intervention order. He was transported to the local police station and told the police that his wife had asked him to come and take their sick child to the hospital. The applicant contravened the family violence intervention order for a third time on 23 May 2017 when he went to the home to see his children because he missed them.

25.     With respect to the 2018 offending, the following events were not disputed. On 26 June 2018, the applicant’s wife and AH and her children were at home. At approximately 5 am AH walked out the front door to leave for work when he was confronted by the applicant who struck him in the head with a weapon. AH was hit several times to the head causing bleeding, superficial head lacerations and soft tissue injuries. He ran away but the applicant chased him. He was taken to hospital and was admitted for three days of treatment. The applicant was arrested later that day and denied the incident despite being shown CCTV images of it. He later pleaded guilty to intentionally causing injury to AH.

26.     In addition to the conduct for which he was convicted, the applicant was involved in two other incidents which resulted in intervention orders being issued. The first incident was recorded in a police statement which said that on 10 February 2017, the applicant and his wife were at their home with their two young children when there was an argument and the applicant became angry and slapped his wife twice to her face. She reported the matter to the police on 13 February 2017. The applicant denied the assault and no charges were laid due to insufficient evidence. The wife did not sustain any injuries. The applicant maintains his denial that he hit her or slapped her. There was no evidence from the wife at the hearing. There was a second incident which resulted in a personal safety intervention order being issued against the applicant which occurred on 13 April 2018. A police statement records that the applicant approached AH in the street and began punching him in the head numerous times with a set of keys between his fingers whilst yelling that he had ruined his family and his life. The applicant denied hitting him said that it was just an argument and a scuffle and that AH did not get injured. No charges were laid but a personal safety intervention order was issued on 28 May 2018 with conditions to be in place until 31 December 2019.

9    As may be seen, the applicant’s offending included breaches of intervention orders, family violence, and an assault to his wife’s new partner. That assault resulted in AH being hospitalised for three days.

10    In considering the exercise of its discretion, the Tribunal observed that there is an overlap between the factors considered as part of the character test and the factors that are relevant to protection of the Australian community (TR [43]), which is one of the “primary considerations” stipulated in Direction 90. As the Tribunal observed, consideration was required to be given to two matters: first, the nature and seriousness of the non-citizen’s conduct to date; and secondly, “the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct”.

11    In relation to the risk to the Australian community, the Tribunal considered the terms of paragraph 8.1.2 of Direction 90 and applicable case law. The Tribunal considered that, if the applicant were to engage in further similar criminal offending, then the nature of the harm would be very serious because it involved family violence and breaches of intervention orders so as to cause fear and psychological distress over a significant period of time, as well as serious physical harm if the offence of causing injury was repeated: TR [47].

12    In assessing the likelihood of further criminal or other serious conduct (TR [48]–[51]), the Tribunal:

(a)    referred to the applicant’s contention that he was “a low risk of re-offending”;

(b)    referred to and adopted the analysis it had conducted in relation to the risk of re-offending in the course of assessing whether the applicant met the character test;

(c)    referred again to the evidence concerning rehabilitation programs, and concluded that the Tribunal was not satisfied that the applicant had achieved sufficient rehabilitation because his engagement with formal rehabilitation programs had been limited and his oral evidence demonstrated a lack of insight with respect to his family violence offending; and

(d)    referred to the support the applicant would likely receive from members of the Rohingya community and his friends, if released.

13    The Tribunal’s conclusion in relation to the protection of the Australian community was as follows (TR [52], citations omitted):

The Government is committed to protecting the Australian community from harm as a result of criminal activity by non-citizens. The applicant committed offences that are so serious that even a low risk of re-offending is not acceptable. The protection of the Australian community is a factor that weighs heavily in favour of refusing the visa.

14    In relation to paragraph 8.2 of Direction 90 (consideration of family violence committed by the non-citizen), the Tribunal assessed the evidence and concluded that (TR [57]):

The significant extent of family violence by the applicant together with his failure to rehabilitate himself means that this is a factor that weighs very heavily in favour of a decision to refuse the visa.

15    The next of the “primary considerations” addressed by the Tribunal was the best interests of minor children (paragraph 8.3 of Direction 90). Here, the Tribunal referred to the fact that the applicant had been deprived of access to his children since 2018 (when he was incarcerated following the assault on AH), the applicant’s desire to re-establish contact with his children and intention to take appropriate steps to do so, if released, involving a lawyer if necessary, and his desire to support the children as they grow up. The Tribunal noted (TR [59]) that the applicant intended to live in Melbourne if released, whereas his former wife and children had moved interstate, which reduced the risk of the applicant re-offending. The Tribunal concluded that a decision to refuse the visa would not be in the best interests of the children, but gave that factor less weight given they had already been separated from him for a substantial part of their lives (the children were eight and six in 2022, and the applicant had been in prison, and then immigration detention, since 2018).

16    The fourth, and final, of the “primary considerations” is the expectations of the Australian community. The Tribunal referred to the terms of paragraph 8.4 of Direction 90, and applicable case law, before concluding (TR [65]–[66]):

I find that the character concerns arising from the applicant’s family and other violence mean that the Australian community would expect the Government to not grant the applicant a visa. It is clear from Direction 90 that the Australian community treats acts of family violence very seriously. Although the risk of further family violence is low, that risk is unacceptable in these circumstances.

My conclusion as to the expectations of the Australian community is that it is a factor that weighs heavily in favour of refusing to grant the visa.

17    In relation to the “other considerations”, the Tribunal referred to Australia’s non-refoulement obligations (as required by paragraph 9.1 of Direction 90) and the consequence that, as the applicant could not be returned to Myanmar, the likely outcome was prolonged, even indefinite, detention, which would likely have a severe negative impact on his mental health (TR [68]–[70]). The Tribunal considered that that was a factor that “weighs very heavily in favour of granting the applicant a visa”. The Tribunal considered that the extent of impediments if removed to Australia, and the impact on victims (paragraphs 9.2 and 9.3 of Direction 90), were neutral factors in the circumstances, and addressed the applicant’s links to the Australian community (paragraph 9.4 of Direction 90), concluding that those links weighed in favour of granting a visa: TR [75].

18    The Tribunal then turned to whether it should exercise its discretion to refuse to grant a visa. The Tribunal reasoned as follows (omitting internal citations):

77.     I have considered the specific circumstances relating to the applicant as part of my consideration. I am now required to determine whether to exercise my discretion to refuse to grant a visa to the applicant.

78.     The primary considerations of the protection and expectations of the Australian community and family violence weigh heavily in favour of refusing to grant a visa. I have considered the nature and the seriousness of the family violence under paragraphs 8.1.1 and 8.2 of Direction 90 but I note 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 that sense I do not “give a double weighting” to the family violence.

79.     The countervailing factors of weight are the prospects of indefinite detention, the best interests of his children and the links to the Australian community. Ultimately, I have decided that those countervailing factors are outweighed which means that the visa should be refused.

80.     The Australian community expects that the Australian government will not grant visas to non-citizens if they have engaged in conduct that raises serious character concerns. The applicant has engaged in such conduct. In this case, the conduct and the harm that would be caused if it were repeated is so serious that even strong countervailing considerations would be insufficient to justify not refusing the visa. In particular, the inherent nature of the family violence is so serious that it would outweigh the countervailing considerations even if the applicant did not pose a measurable risk of causing physical harm to the Australian community. I have found that there is a low risk of further family violence but that the risk is unacceptable in the circumstances.

81.     The prospect of indefinite detention is a very significant countervailing factor which I have carefully weighed in my consideration. It is the cumulative impact of repeated acts of family violence and the unacceptable risk of further family violence that tips the scales in favour of refusing a visa.

82.     The decision of the Tribunal is to affirm the decision under review.

The Parties’ arguments

19    Paragraph 6 of Direction 90 provides that, “[i]nformed by the principles in paragraph 5.2, a decision-maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision”. Paragraph 8 sets out four “primary considerations”, and paragraph 9 sets out a number of “other considerations”.

20    The applicant submitted as follows regarding the existence of jurisdictional error where a decision-maker fails to grapple with a matter of importance that was advanced before it:

14.    The Minister has an “obligation to engage in an active intellectual process with significant and clearly expressed relevant representations made in support of a revocation request”: Minister for Home Affairs v Omar [2019] FCAFC 188 (Omar) at [37]. The Full Court (Allsop CJ, Bromberg, Robertson, Griffiths and Perry JJ) in Omar adopted, at [36](d), Navoto v Minister for Home Affairs [2019] FCAFC 135 at [86]–[89] per Middleton, Moshinsky and Anderson JJ, citing Navoto v Minister for Home Affairs [2019] FCA 295 at [47] per Allsop CJ:

A failure to consider or take into account matters of sufficient importance in the representations may amount to jurisdictional error either because it cannot be said that the required state of satisfaction has been reached in accordance with the section in all the circumstances, or because not to take such an important matter into account reflects a failure to take into account all the representations. There will be jurisdictional error if material important in the representations has not been taken into account so as to make the purported exercise of the power not one that can be seen or characterised as being based on, or having taken into account, the representations as a whole.

15.     This formulation has been the subject of caution in Plaintiff M1/2021 v Minister for Home Affairs (2022) 96 ALJR 497, at [26] (Kiefel CJ, Keane, Gordon and Steward JJ) that “labels like “active intellectual process” and “proper, genuine and realistic consideration” must be understood in their proper context”, and warning that “the court does not substitute its decision for that of an administrative decision-maker.” The Applicant alleges by his Ground 1 a material error of law in the failure to exercise an “active intellectual process” in considering his claims, not an impermissible merits review of the Tribunal’s decision.

21    The applicant submitted that he had consistently provided submissions and evidence referring directly or indirectly to his children, that were directly relevant to the Tribunal’s assessment of the risk of future offending. The applicant submitted that the Tribunal fell into jurisdictional error because it neglected to consider whether the applicant’s risk of re-offending was lower because of his motivation to provide for and have a relationship with his children, and consequently the applicant was deprived of a “realistic possibility of a different outcome” in relation to a primary consideration at paragraph 8.1 of Direction 90, being protection of the Australian community.

22    The Minister observed that the applicant’s submissions, and particularly the applicant’s oral submissions, referred to the applicant having made a “claim” before the Tribunal, which had not been addressed. The Minister noted that the concept of a “claim” is a concept arising in cases concerning protection visas. The Minister noted that s 501(1) is a different provision. It confers a discretion on the Minister to refuse to grant a visa to a person if that person does not pass the “character test”. That provision confers a discretion, the only mandatory considerations in respect of which are those found in Direction 90. The Minister nevertheless accepted that there may be jurisdictional error where the decision-maker (here the Tribunal) fails to address (as the Minister put it) “critical evidence”.

23    In light of the oral submissions having raised, for the first time, a question about whether the cases cited by the applicant apply in cases concerning visa refusals under s 501(1), the Minister was invited to advise my chambers of authorities relevant to the characterisation of the nature of the Tribunal’s obligation to consider evidence and contentions advanced before it. One case referred to by the Minister was XTLP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 646 (XTLP) at [47]–[50], [54] (Stewart J). In that case Stewart J did not limit the ambit of jurisdictional error to the failure to address “critical evidence”, but rather adopted the High Court’s approach to the role of a delegate considering “representations” made in the context of s 501CA(4) of the Act in Plaintiff M1/2021 v Minister for Home Affairs (2022) 96 ALJR 497; [2022] HCA 17 (M1) at [24], [27] (Kiefel CJ, Keane, Gordon and Steward JJ)).

24    On the substance of the matter, the Minister’s principal submission was that the Tribunal was required to, and did, consider the first primary consideration, namely protection of the Australian community from criminal or other serious conduct, including the risk of the applicant re-offending. The Minister submitted that the applicant’s proposition before the Tribunal was that he posed a low risk of re-offending, by reference to various stated matters (which did not include the applicant’s desire to reconnect with, and support, his children), and the Tribunal accepted that the applicant posed a low risk of re-offending. The Minister submitted that the contention now advanced was not how the matter was put by the applicant’s counsel and solicitor before the Tribunal.

25    The Minister further submitted that the position now taken by the applicant was also contrary to the expert evidence before the Tribunal. The Minister there referred to the expert report of Dr Zimmerman, which set out the factors relevant to risk, including “the possibility of struggling to manage stress associated with re-establishing contact with his children”. The Minister submitted that, rather than lowering the risk of the applicant re-offending, the applicant’s desire to re-establish contact with his children was a possible trigger for re-offending. The Minister also noted that the Tribunal had regard to the expert’s opinion as to the matters that would lower the risk of re-offending, before concluding (TR [40]) that there was a real, albeit low, risk of future family violence.

26    The Minister also submitted that:

The applicant does not, and cannot explain, how the Tribunal erred in this regard or how this new factor, if had been taken into account, could have reduced the low risk to no real risk given the expert’s opinion: see also LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 64 at [79] to [83] per Markovic, Thomas and Button JJ.

Consideration

27    The applicant’s submissions commence by relying on a number of authorities concerning a decision-maker’s obligation to engage substantively with “representations” made to it: Minister for Home Affairs v Omar (2019) 272 FCR 589 at [37] (Allsop CJ, Bromberg, Robertson, Griffiths and Perry JJ); Navoto v Minister for Home Affairs [2019] FCAFC 135 at [86]–[89] (Middleton, Moshinsky and Anderson JJ), citing Navoto v Minister for Home Affairs [2019] FCA 295 at [47] (Allsop CJ); and M1 at [26] (Kiefel CJ, Keane, Gordon and Steward JJ).

28    All of those cases concerned ss 501CA(3)–(4) of the Act. Those provisions apply where there is a mandatory cancellation of a visa on character grounds, and empower the Minister to revoke the original decision if the person takes up the Minister’s invitation to “make representations” about revocation of the original decision and the Minister is satisfied that the person does pass the character test, or there is “another reason” why the original decision should be revoked. The Minister is obliged to invite the person to make representations.

29    Section 501(1) is a different kind of provision. As the Minister observed, it confers a discretion that is conditioned only on the Minister not being satisfied that the person passes the character test. Section 501(1) does not include any procedure for the Minister to seek “representations” from the visa applicant. Those differences need to be kept in mind when considering case law that has developed in the context of provisions which refer expressly to the receipt of “representations”. Nevertheless, in GNRK v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 292 FCR 262 (GNRK), the Full Court (Rangiah, Markovic and Snaden JJ) said as follows, concerning the approach to be taken in s 501(1) cases and the extent to which the approach set out in cases concerning s 501CA(4) is to be applied (emphasis added):

[77]     While there are differences to the nature of the power conferred by s 501CA(4), on the one hand, and s 501(1), on the other, in both cases the decision maker may receive representations from the person who is affected by the decision as to why the power should be exercised in that person’s favour. In those circumstances there is no reason why the High Court’s reasoning in Viane would not equally apply to the consideration of any material relied on by a person who was subject to the exercise of the power under s 501(1) of the Act. If that is so then in exercising the power under s 501(1) of the Act a decision maker is required to consider and understand the representations made to it.

30    The Full Court in GNRK referred to and extracted passages from the High Court’s judgment in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane (2021) 274 CLR 398 as follows (emphasis in GNRK):

65     In Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs v Viane [2021] HCA 41; 96 ALJR 13 (Viane) the High Court (Keane, Gordon, Edelman, Steward and Gleeson JJ) considered the operation of s 501CA of the Act. That section requires the Minister to provide relevant information to a person whose visa has been mandatorily cancelled and to invite representations as to why the cancellation decision should be revoked. At [13]–[14] the High Court said the following about the exercise of the discretionary power under s 501CA(4) to revoke a cancellation decision:

13    The relevant statutory scheme mandated by s 501CA of the Act comprises: the giving of relevant information to a person whose visa has been cancelled; inviting that person to make representations about why that cancellation decision should be revoked; the receipt of representations by the Minister made in accordance with that invitation; and, thereafter, the formation of a state of satisfaction, or not, by the Minister that the cancellation decision should be revoked. That scheme necessarily requires the Minister to consider and understand the representations received. What is “another reason” is a matter for the Minister. Under this scheme, Parliament has not, in any way, mandated or prescribed the reasons which might justify revocation, or not, of a cancellation decision in a given case. It follows that there may be few mandatorily relevant matters that the Minister must consider in applying s 501CA(4)(b)(ii). Thus, the Minister is not obliged to take account of any non-refoulement obligations, as expressed in the Act or otherwise, when determining whether there is another reason to revoke a cancellation decision where the materials “do not include, or the circumstances do not suggest, a non-refoulement claim”. The power must otherwise be exercised reasonably and in good faith.

14    No part of the statutory power conferred by s 501CA of the Act obliges the Minister to make actual findings of fact as an adjudication of all material claims made by an applicant. Based upon the representations made by an applicant, the cancellation decision and the “relevant information” given to the applicant pursuant to s 501CA(3)(a), the Minister must, when the Minister is not satisfied that an applicant passes the character test, then determine relevantly whether to be satisfied that there is “another reason” why the cancellation decision should be revoked. Deciding whether or not to be satisfied that “another reason” exists might be the product of necessary fact finding, or the product of making predictions about the future, or it might be about assessments or characterisation of an applicant’s past offending.

(Footnotes omitted; emphasis added.)

31    I am bound by, and accordingly adopt, the approach set out in GNRK. I note also that, in XTLP, which was also a case concerning a visa refusal under s 501(1), Stewart J adopted a similar approach. His Honour referred to s 501CA(4)(b)(ii) as a “different although closely analogous discretion to the discretion under s 501(1)”: at [47]. Further, Stewart J considered statements made by the High Court in M1 concerning the level of engagement by a delegate with an applicant’s representations in the s 501CA context to be “equally applicable to the task of the Tribunal in the present case”: at [47].

32    Of course, the power to refuse a visa pursuant to s 501(1) must be exercised in accordance with directions given by the Minister under s 499 of the Act. Relevantly, here, Direction 90 sets out what the Tribunal was required to consider. The Tribunal was required to, and did, “take into account the considerations identified in section 8 and 9” of Direction 90 (Direction 90, paragraph 7). One of those considerations was the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (Direction 90, paragraph 8.1.2). Paragraph 8.1.2(2) set out matters to which decision-makers were required to have regard, which included the likelihood of the non-citizen engaging in further criminal or other serious conduct.

33    In his Statement of Facts, Issues and Contentions, the applicant contended that he “presents a low risk” of re-offending, in light of the matters referred to in paragraph 46 of that document. The applicant referred, in paragraph 46, to having spent four years in prison and detention and having lost contact with his family. That submission was made in substantiating the deterrent effect presented by a further custodial sentence, should he re-offend. It was not a submission to the effect that his risk of re-offending was lowered by his desire to reconnect with his children.

34    The applicant referred, in paragraph 55 of his Statement of Facts, Issues and Contentions, to his children and his desire to re-establish contact with them, emphasising that the applicant was aware that he needed to engage with rehabilitation programs. While that submission was made in addressing the best interests of his children (another primary consideration), the location of the submission is not determinative. Nevertheless, the submission directed attention to the fact that the possibility of reconnecting with his children would be foreclosed if his application were refused. It did not seek to draw a link between his desire to re-establish contact and his risk of re-offending.

35    The evidence before the Tribunal included a statement of the applicant. In that statement, the applicant emphasised his hope of reconnecting with his children, and his awareness that he needed to prove he had changed, and needed to approach his former wife in a respectful and legal way. The applicant also said he wanted to obey the law and do things the right way and to seek legal advice about how he could contact his children again.

36    In my view, the applicant’s statement before the Tribunal did raise his hopes in relation to his children as a factor that would mitigate, to some degree, his risk of re-offending. However, Dr Zimmerman’s report identified the stress associated with re-establishing contact with his children as a risk factor. As counsel for the Minister submitted, the children were a “two-edged sword”.

37    This aspect of the applicant’s evidence was not directly addressed by the Tribunal in its reasons. As the applicant pointed out in his submissions, the only point at which the Tribunal referred to the applicant’s children was in assessing their best interests. While the Tribunal referred to the applicant’s desire to re-connect with and provide support to his children, it did not at any point consider the extent to which the applicant’s intentions and hopes in respect of his children — which the Tribunal accepted were genuine — affected the assessment of the risk of the applicant re-offending or engaging in other serious conduct.

38    Nevertheless, in my view, it was not incumbent on the Tribunal to specifically refer to and address the evidence and contentions each way, so far as they concerned the impact of the applicant’s hopes in relation to his children. That is so because the Tribunal accepted the applicant’s contention that he posed only a low risk of re-offending. There was nothing in the applicant’s material before the Tribunal that suggested the applicant’s hopes and intentions in relation to his children reduced the risk level below the “low risk” assessment for which the applicant himself contended. It would be otherwise if the Tribunal had rejected his submission that he posed a low risk of re-offending, but it did not.

39    Further, and in any event, even if the Tribunal had erred by failing to address the impact of the applicant’s hopes and intentions in relation to his children on the risk of re-offending, any such error was not, in my view, material. While the threshold of materiality has been described as “undemanding” (Nathanson v Minister for Home Affairs (2022) 96 ALJR 737; [2022] HCA 26 at [33] (Kiefel CJ, Keane and Gleeson JJ)), it is not meaningless. The Full Court (Markovic, Thomas and Button JJ) recently set out the authorities regarding materiality in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 64 (LPDT) at [73]ff. An error will only be material where there is a realistic possibility that, had the decision-maker not erred, the decision could have been different: Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at [45] (Bell, Gageler and Keane JJ), referred to in LPDT at [73].

40    The applicant put his argument on the basis that the Tribunal failed to engage with his representation that his desire to re-establish a relationship with, and provide for, his children “lowered his risk” to the Australian community. As noted above, the applicant contended that the Tribunal’s failure to consider whether the applicant’s risk of re-offending was lower because of his motivation to provide for and have a relationship with his children deprived the applicant of a “realistic possibility of a different outcome” in relation to a primary consideration under Direction 90, namely protection of the Australian community.”

41    Assuming in the applicant’s favour, for the moment, that the Tribunal did err in failing to address a sufficiently important representation that was made to it, the applicant’s arguments might have had some merit if the Tribunal had concluded that the applicant posed a high, or even moderate, risk to the Australian community. However, the difficulty for the applicant, and one that is fatal to his application, is that the Tribunal proceeded on the basis that the risk of the applicant re-offending was “a real albeit low risk” (TR [40], see also TR [60]) and that “[t]he applicant committed offences that are so serious that even a low risk of re-offending is not acceptable” (TR [52], see also TR [65] and TR [80]–[81]).

42    As is apparent from a review of the Tribunal’s reasons, the Tribunal was of the view that even a low risk of re-offending was not tolerable. The applicant has not contended that the matter he contends the Tribunal failed to address may have resulted in an assessment that he posed no, or an immaterial, risk of re-offending. He only contended that the Tribunal failed to consider his representation that the risk he posed was “lowered” by (or “lower because of”) his desire to re-establish a relationship with, and support, his children. However, as the Tribunal already assessed the risk of further offending as “low”, in my view the applicant has not established that, had the representation in question been addressed by the Tribunal, there is a realistic chance that he could have enjoyed a favourable outcome. As Mortimer J (as her Honour then was) and Bromwich J made clear in Chamoun v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 276 FCR 75 at [66], realistic possibilities are to be distinguished from possibilities that are fanciful or improbable.

43    The failure of the applicant’s case on materiality is put beyond any doubt by the Tribunal’s expressly stated conclusion that, even if the applicant did not pose any measurable risk of causing physical harm to the Australian community, “the inherent nature of the family violence is so serious that it would outweigh the countervailing considerations”: TR [80].

44    Accordingly, I reject the applicant’s contention that the Tribunal fell into jurisdictional error.

Associate:

Dated:    15 August 2023