Federal Court of Australia

Korat v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1333

ORDERS

THE COURT ORDERS THAT:

1.    Leave be granted to the applicant to amend the originating application in the form of the amended application dated 13 November 2023, and as further amended in the course of argument.

2.    The amended application be dismissed.

3.    The applicant pay the respondents’ costs of the proceedings.

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

REASONS FOR JUDGMENT

JACKMAN J

1    By an application filed on 21 July 2023, pursuant to s 476A of the Migration Act 1958 (Cth) (the Act), the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) dated 20 June 2023. In that decision, the Tribunal affirmed a decision of a delegate of the first respondent (the Minister) not to revoke the cancellation of the applicant’s Employer Nomination Scheme (Class EN) (subclass 186) visa (the Visa) under s 501CA(4) of the Act.

2    The applicant is a citizen of India, born on 17 June 1980, and first arrived in Australia on 23 April 2009 as the holder of a Student (Class TU) (subclass 572) visa. On 13 March 2019, the applicant was granted the Visa.

3    On 30 August 2018, the applicant was convicted of “driving with middle range PCA”. On 24 August 2020, the applicant was convicted of “common assault (DV)”. On 5 February 2021, the applicant was convicted of the offence of using a carriage service for a hoax threat and was sentenced to two years imprisonment, but to be released at the expiration of 12 months from the commencement of the sentence conditionally upon him entering into recognizance to be of good behaviour for a period of three years thereafter. On 12 April 2021, the applicant was convicted of “common assault (DV)” and “contravene prohibition/restriction in AVO (Domestic)” and sentenced to six months imprisonment.

4    On 24 March 2021, the applicant’s Visa was cancelled under s 501(3A) of the Act. That was because the applicant had a “substantial criminal record” on the basis of having been sentenced to a term of imprisonment of 12 months or more and was serving a sentence of imprisonment, on a full-time basis, in a custodial institution for an offence against a law of the Commonwealth, a State or a Territory: s 501(6)(a) and 501(7)(c) of the Act. On 21 April 2021, the applicant made representations seeking the revocation of the cancellation decision under s 501CA(4) of the Act. On 28 February 2023, a delegate of the Minister found that the power under s 501CA(4) to revoke the cancellation under s 501(3A) was not enlivened. The applicant was notified of that decision on 28 March 2023. On 31 March 2023, the applicant applied to the Tribunal for review of that decision. On 20 June 2023, the Tribunal affirmed the decision under review.

5    In its decision, the Tribunal noted that it was not in dispute that the applicant did not pass the character test under s 501(6) of the Act, and identified that the relevant issue was whether the cancellation of the Visa should be revoked: see [24] of the Tribunal’s reasons. The Tribunal considered the primary and other considerations specified under Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction 99) made under s 499(1) of the Act. The Tribunal found that the considerations weighing in favour of revocation, being the seriousness of the applicant’s offending conduct, the conduct involving family violence, the risk of reoffending, and the expectations of the Australian community outweighed the countervailing considerations: see [139] of the Tribunal’s reasons. The Tribunal therefore affirmed the decision under review: at [140]. I refer to the relevant aspects of the Tribunal’s reasons in relation to the specific grounds for the application set out below.

6    At the hearing of the application, the applicant’s legal representative made an application to amend the originating application, and in the course of making his oral submissions, made a further application to amend. I grant leave to the applicant to make those amendments, and I refer in my reasons below to the grounds as set out in the amended application as further amended in the course of oral argument. I also gave the Minister the opportunity to file a further written submission, and to the applicant to reply in writing, which the parties did not take up.

Ground 1

7    Ground 1 is that the Tribunal’s decision is affected by jurisdictional error because the Tribunal applied the wrong legal test or failed to take into account a relevant consideration, or took into account an irrelevant consideration, or otherwise constructively failed to exercise jurisdiction. That ground is said to be supported by four particulars.

8    Particular (a) is as follows:

(i)    The wife of the Applicant gave evidence as a witness for the Applicant. During the course of her evidence, the Tribunal asked questions about her opinion as a victim of two common assaults and a breach of an AVO. The Tribunal refers to her evidence at paragraph 44. The Tribunal makes a finding at paragraph 86 that the impact on her as a victim was "traumatic". In paragraphs 129-133, the Tribunal uses this evidence against the Applicant, finding that it weighs against revocation.

(ii)    In doing this, the Tribunal turned the witness for the Applicant into a witness against the Applicant. The Tribunal did not preface her questions by saying Mrs Korat did not need to answer. The Tribunal did not ask the representatives their view on whether this was an appropriate line of questions.

(iii)    The Tribunal did not put to Mr Korat or his representative that Mrs Korat had given evidence that was harmful to his case and whether either wanted to comment on or respond.

9    This ground is based on the following questions which were put by the presiding member of the Tribunal to Mrs Korat at p 111 of the transcript:

Do you think a person who is capable and has been convicted of domestic violence is a good role model for their children?

Substance abuse, is that a good role model for the children?

The other issue that I wanted to raise, and it is a sensitive one, one of the considerations that I have to take into account is victim, the impact of the offending on the victim. Your [sic] one of the victims here, in terms of the domestic violence offending and I want to give you the opportunity to tell the tribunal the impact of that domestic violence has had on you, as a woman, as a person?

10    Particular (a) of Ground 1 alleges effectively that the Tribunal erred by using the applicant’s witness, being his wife, Mrs Korat “against him” and did not tell Mrs Korat she did not have to answer its questions, and that the Tribunal erred by not asking the applicant’s legal representative whether the line of questioning was appropriate or by not telling them that Mrs Korat had given evidence that was harmful to his case and asking whether either wanted to comment or respond.

11    The Tribunal is under no duty to provide a “running commentary” upon what it thinks about evidence that is given; on the contrary, to adopt such a course would be likely to run a serious risk of conveying an impression of prejudgment: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] 8 HCA 63; (2006) 228 CLR 152 at [48] (Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ). While procedural fairness may require the Tribunal to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made, and to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material, the Tribunal is not obliged to expose mental processes or provisional views to comment before making the decision in question: Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 591-592 (Northrop, Miles and French JJ). Accordingly, the Tribunal was under no obligation to tell the applicant or his representative how it proposed to make findings regarding Mrs Korat’s evidence, including whether it proposed to attribute that evidence weight in favour of or against revocation.

12    It was clear how Mrs Korat’s evidence was relevant to the considerations in Direction 99. That direction specifically requires the Tribunal to consider acts of family violence (para 8.1.1(1)(a)(iii)), the cumulative effect of repeated acts of family violence (para 8.2(3)(b)), and the impact of the revocation of the visa cancellation on victims (para 9.3). There is necessarily an overlap between these considerations, and certain evidence may relate to multiple considerations under Direction 99: Demir v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 870 at [23] (Kennett J). The impact of the domestic violence offences on Mrs Korat was an obvious and relevant matter for the Tribunal to consider under multiple considerations under Direction 99.

13    In posing the questions which I have set out above, the Tribunal clearly put the applicant on notice that the impact of the domestic violence offences on Mrs Korat was relevant to the Tribunal’s decision. In any event, it cannot be suggested that the applicant was not on notice of the relevance of Mrs Korat’s evidence. The impact of the applicant’s family violence offences was referred to in the delegate’s decision, the applicant was provided with a copy of Direction 99 with the documents provided under s 501G of the Act, family violence conduct was raised in the Minister’s statement of facts, issues and contentions, and the issue was addressed in the applicant’s submission to the Tribunal. Contrary to the applicant’s submission, there is no obligation on the part of the Tribunal to put Mrs Korat’s evidence to the applicant and seek his comment or response. Accordingly, the Minister submits, and I accept, that the Tribunal was not obliged to inform the applicant that Mrs Korat’s evidence may be afforded weight against revocation, including in relation to the impact on victims, as this evidence was an apparent issue under Direction 99 and was an obvious conclusion to reach on the known material.

14    Further, the Tribunal was not required to ask the applicant’s representative whether its questions were appropriate. The proceedings before the Tribunal were inquisitorial in nature: Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 at [76] (Gaudron and Gummow JJ). The Tribunal was entitled to ask questions relevant to its decision-making in order to satisfy itself of the merits of the application: NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328; (2004) 214 ALR 264 at [124]-[125] (Allsop J, with whom Moore and Tamberlin JJ agreed). To the extent that the applicant is complaining about a failure to afford procedural fairness, the applicant was represented by a solicitor at the hearing and he could have objected to the Tribunal’s question, but did not. The applicant’s representative also had an opportunity to re-examine Mrs Korat after the Tribunal’s questions, and to make closing submissions at the conclusion of the hearing. Accordingly, the applicant was clearly afforded an opportunity to give evidence and make arguments regarding the relevant issues in dispute, as required by the Act: SZBEL at [33]. The applicant has not identified any basis on which it could be said that the Tribunal was required to advise Mrs Korat that she did not have to answer its questions. Mrs Korat was a willing witness who was required to answer the Tribunal’s questions pursuant to s 62(3) of the Administrative Appeals Tribunal Act 1975 (Cth), and the exception in s 62(4) as to self-incrimination did not apply.

15    To the extent that this ground alleges that the Tribunal was obliged to find that Mrs Korat’s evidence only weighed in favour of revocation, and that the Tribunal was prohibited from using her evidence “against” the applicant, including in respect of the impact on victims’ consideration, this ground is misconceived. The weight to be afforded to the relevant considerations under Direction 99 is a matter for the Tribunal, not for the Court: Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; (2010) 243 CLR 164 at [33] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ); TGWR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 200 at [25] (Lee, SC Derrington and Cheeseman JJ). This ground is no more than a disagreement with the Tribunal’s decision and is an invitation to engage in impermissible merits review: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 (Brennan CJ, Toohey, McHugh and Gummow JJ).

16    Particular (b) of Ground 1 is as follows:

At paragraph 110, there is an exchange between the Tribunal and Mrs Korat. At paragraph 111, in the context of the best interests of the children, the Tribunal states, “However, even on her own evidence, Ms Korat recognised that aspects of the Applicant's behaviour does not accord with being a role model for children.” In doing so, the Tribunal asks itself the wrong question. Despite all the evidence, including a letter from the daughter which is not referred to in the decision despite having been referred to in oral evidence, the Tribunal at paragraph 114 only gives “some weight” to the best interests of the two children.

17    Under Direction 99, the Tribunal was required to consider the best interests of minor children in Australia affected by the decision. This included consideration of the following factors: “the extent to which the non-citizen is likely to play a positive parental role in the future” (para 8.4(4)(b)), “the impact of the non-citizen’s prior conduct … and whether that conduct has, or will have a negative impact on the child” (para 8.4(4)(c)), and “whether there are other persons who already fulfil a parental role in relation to the child” (para 8.4(4)(e)).

18    The Tribunal’s observation regarding Mrs Korat’s evidence does not amount to the Tribunal asking itself the wrong question. The Tribunal’s reasoning at [111] was as follows:

The Tribunal does not wish to sound harsh or take the comments out of their context. However, even on her own evidence, Ms Korat recognised that aspects of the Applicant’s behaviour does [sic] not accord with being a role model for children. The evidence demonstrates that the drinking issue has not resolved. The evidence demonstrates this as Mr Sheehan acknowledged the Applicant has shown “that under certain circumstances, he remains vulnerable to resorting to alcohol use and then engaging in aggressive behaviour, which makes this a live issue, not a historical issue”.

Those observations were clearly relevant to the factors under para 8.4(4), and were made in the context of the Tribunal referring to the “very negative aspects of the Applicant’s conduct” (at [109]). It was open for the Tribunal to consider Mrs Korat’s evidence regarding whether the applicant was a role model for the children as this had a clear bearing on whether the applicant was likely to play a positive parental role in the future, or whether his conduct would have a negative impact on the children. The Tribunal otherwise identified the relevant considerations under Direction 99 at [103]. Accordingly, it cannot be said that the Tribunal asked itself the wrong question. The applicant’s complaint about the weight afforded to the best interests of the child is an attempt to argue with the merits of the Tribunal’s decision, and is not an available ground of judicial review.

19    Particular (c) of Ground 1 is as follows:

At paragraph 113, the Tribunal states:

The family violence and the alcohol misuse present serious challenges to the proposition that revocation is in the children’s best interest. Moreover, the evidence before the Tribunal indicates that Ms Korat, albeit with some difficulties as a single parent, has cared for the children all their lives, including during the Applicant’s incarceration and detention and she has fulfilled the parental role.

In doing so, Tribunal asks itself the wrong question in making findings on the best interest of the children. It finds the best interests of the children as served by them never having personal contact with their father, and Mrs Korat can look after them. This finding is also illogical and irrational.

20    This ground is misconceived. The Tribunal made no findings that the best interest of the children were served by them never having personal contact with their father, and that Mrs Korat can look after them. Accordingly, any complaint regarding the logicality or rationality of the Tribunal’s decision cannot be sustained when the Tribunal made no such finding. In any event, for the reasons given above, the Minister contends, and I accept, that it was open for the Tribunal to consider the negative impacts on the applicant’s children of his future conduct, including his family violence and alcohol use, and the extent to which he would play a positive parental role in the future, and already fulfilled a parental role in relation to the applicant’s children. The Tribunal therefore did not ask itself the wrong question. Further, the Tribunal’s reasons were open to it. There is thus no merit in this ground.

21    Particular (d) of Ground 1 is as follows:

The Tribunal failed to exercise jurisdiction because it did not find that there is, or is not, another reason to revoke the mandatory cancellation of the Applicant’s visa as required by s.501CA(4)(b)(ii) of the Act.

22    At [12], the Tribunal quoted the text of s 501CA(4), which sets out the alternative grounds for revocation of the Minister being satisfied that the person passes the character test, or that there is another reason why the original decision should be revoked. As the Tribunal stated at [24], it was not in dispute that the applicant did not meet the character test. The Tribunal then stated the issues as being whether the cancellation of the Visa should be revoked, which was plainly a reference to whether there was “another reason” as to why the original decision should be revoked. There is no doubt that the Tribunal was conscious of that being the operative test under s 501CA(4), not only because the Tribunal had quoted that provision, but also because at [138] the Tribunal made express reference to the question whether there was “another reason” why the decision to cancel the Visa should be revoked. The applicant’s legal representative at the hearing before me accepted that it was obviously implicit in the Tribunal’s reasoning that there was not another reason to revoke the mandatory cancellation. Accordingly, a sensible reading of the Tribunal’s reasons is that the Tribunal did in fact find that there was not another reason to revoke the mandatory cancellation of the Visa as required by s 501CA(4)(b)(ii) of the Act.

Ground 2

23    Ground 2 contends that the Tribunal’s decision was so illogical, irrational or unreasonable that no reasonable person could have made it. Ground 2 is supported by five particulars. Before dealing with those particulars, the relevant principles are as follows.

24    The test for illogicality or irrationality requires the reviewing Court to determine whether “logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based”: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [131] (Crennan and Bell JJ). If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect to the conclusions to be drawn from that evidence, “a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion”: SZMDS at [131]. A decision will be unreasonable if it lacks an evident and intelligible justification: Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 at [76] (Hayne, Kiefel and Bell JJ). An assessment of whether the Tribunal acted unreasonably is invariably fact dependent and sensitive to context, and the Tribunal’s reasons are the focal point of any such assessment: Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 at [46]-[47] (Allsop CJ, Robertson and Mortimer JJ).

25    Particular (a) of Ground 2 is as follows:

At paragraph 41, the Tribunal finds the applicant’s criminal conduct had escalated. This was based on one mid-range drink driving offence, a common assault, the hoax bomb threat, and a common assault and AVO breach. There is no obvious pattern in these offences that could logically or rationally lead to a finding of increasing escalation.

In addition, particular (aa) of Ground 2 is as follows:

Further, the Tribunal has confused the sequence of events, which were the driving under the influence of alcohol; bomb hoax threat; common assault; and breach of an apprehended violence order and common assault. There is no obvious trend or one of escalation and could not reasonably lead to the finding that the “seriousness of the Applicant’s conduct has escalated”. This finding was based on a fact that did not exist.

26    In his written submissions, the applicant’s legal representative set out the relevant dates as follows: on 29 June 2018, the applicant drove under the influence of alcohol; on 25 March 2019, the applicant used a carriage service to make a hoax threat; on 7 July 2020, the applicant committed a common assault; and on 6 September 2020, the applicant contravened an AVO and committed a common assault. The applicant accepted that the offence on 25 March 2019 was the most serious, but submitted that it was hard to say that there had been an escalation between driving under the influence and the hoax threat because they are completely different.

27    The Tribunal at [41] did find that the seriousness of the applicant’s conduct had escalated, but referred in making that finding to the Minister’s submission that showed a trend of increasing seriousness with the applicant first committing a drink driving offence in 2018 and subsequently being charged with using a carriage service for a hoax threat. The submission did not refer to the two counts of common assault in July and September 2020. In relation to the drink driving offence in 2018, the applicant received an $800 fine and a six month disqualification, whereas the hoax threat offence in 2019 led to the applicant receiving a two year prison sentence. It was entirely logical and rational to refer to those two offences as showing a trend of increasing seriousness in criminal conduct. The fact that the offences were different in nature does not show that conclusion to have been illogical or irrational. There is also no indication at [41] of the Tribunal’s reasons that it confused the sequence of the applicant’s offences.

28    Particular (b) was not pressed, and was deleted in the amended application.

29    Particular (c) of Ground 2 is as follows in its amended form:

At paragraph 72, the Tribunal states “any level of risk is unacceptable”. That means that no one could be successful and the appeal process is a sham, because the concept of “zero risk” cannot exist. Further, the nature of the offences are not such that would shock the conscience of a civilised society that might justify such a finding.

30    This ground rises no higher than an expression of the applicant’s disagreement with the Tribunal’s finding that given the seriousness of the potential harm that could be caused, the Tribunal was satisfied that any level of risk was unacceptable (at [72]). Contrary to this ground, the Tribunal’s finding was not that an applicant is required to meet a level of zero risk, but rather that some offending may be so serious that any level of risk is unacceptable, consistently with para 5.2(6) of Direction 99.

31    I note that in its amended form, the applicant no longer relies on the conclusions of the psychologist, Mr Sheehan, that the applicant’s risk of reoffending was low, which strikes me as an appropriate concession, given that the Tribunal gave reasons for why it did not accept Mr Sheehan’s assessment at [71]-[72], and the Tribunal was entitled to come to its own conclusion regarding the applicant’s risk of reoffending based on the evidence before it: YKSB v Minister for Home Affairs [2020] FCA 476 at [45] (Mortimer J); Khalil v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 26 at [53]-[58] (Katzmann, Banks-Smith and Rofe JJ).

32    Particular (d) of Ground 2 is as follows:

In relation to links to Australia, the Tribunal states at paragraph 100, “the Tribunal is satisfied that the Applicant has strong, personal and lengthy ties in Australia, including his children and Ms Korat”. Despite this, the Tribunal makes a finding that it “gives this consideration weight in favour of revocation”. This is illogical because having made that finding, it should have given significant weight to this consideration.

33    This ground is an invitation to engage in impermissible merits review. The weight to be afforded to the considerations under Direction 99 is a matter for the Tribunal.

34    The applicant submitted that in giving this consideration weight in favour of revocation at [101], the Tribunal should have specified the degree of weight. The applicant submits that this is a factor which would normally be expected to favour revocation strongly, but instead was downplayed or left vague. In my view, there is no merit in that criticism. As Kennett J said in Demir at [21]-[22], the metaphor of “weighing” relevant considerations should not be taken too literally, as the exercise is not mathematical and cannot depend on the simple aggregation of factors on each side of a ledger, and the ultimate decision as to which relevant factors are more important is likely to be instinctive and correspondingly unlikely to be explained in granular detail.

35    Particular (e) of Ground 2 is as follows:

The decision-making process failed. Rather than objectively analyse the evidence and demonstrate an intellectual engagement with the evidence, the Tribunal ignores evidence and glosses over or downplays the evidence that is contrary to the decision, while evidence supporting the decision is emphasised and given much more weight than a reasonable person would expect. Accordingly, the decision suffers from extreme illogicality or irrationality.

During oral argument, the legal representative for the applicant added the following two matters to that particular:

(i)    the Tribunal failed to consider the applicant’s daughter’s letter at AB111, contrary to the requirement of Direction 99 in para 8.4(4)(f).

(ii)    the Tribunal failed to consider and make findings on Mr Korat’s exemplary record in prison, contrary to Direction 99 at para 8.1.2(2)(b)(ii).

36    The legal representative for the applicant accepted that the Tribunal did not need to refer to every piece of evidence. In my view there is no material omission in considering the substance of any of the evidence that was before the Tribunal. While I accept that, in principle, a decision maker who has overlooked evidence may conceivably have engaged in jurisdictional error, I cannot see how that proposition could apply to the thorough analysis conducted by the Tribunal in the present case.

37    As to the letter from Mr Korat’s teenage daughter, while the Tribunal made no express reference to that letter, the substance of the letter was reflected in the statutory declaration of Mrs Korat which the Tribunal quoted from at [104], including the propositions that their children were very close to the applicant, without the applicant the children would not have a normal family with both parents, their daughter misses the applicant and needed the assistance of a father to guide her. As to the applicant’s conduct while in prison, my attention was drawn to the prison records which show that Mr Korat was not subjected to any punishment concerning his conduct in prison, however I do not think that that evidence necessarily had to be referred to in relation to the question of whether there was evidence of rehabilitation within the meaning of para 8.1.2(2)(b)(ii) of Direction 99.

38    Accordingly, in my view there is no merit in any of the grounds put forward for judicial review. The application in its amended form should be dismissed with costs.

Associate:

Dated:    17 November 2023