Federal Court of Australia

HKRC v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1487

ORDERS

THE COURT ORDERS THAT:

1.    The time for filing of the originating application be extended to 17 May 2023.

2.    The applicant be granted leave to file the amended originating application dated 18 October 2023.

3.    A writ of certiorari issue to the second respondent to quash its decision made on 14 March 2023, affirming the decision not to revoke the cancellation of the visa held by the applicant.

4.    The parties are to confer and seek to reach agreement on any further consequential orders, including whether the matter should be remitted to a differently constituted Tribunal, whether any questioning at the hearing before the Tribunal on 2 March 2023 cannot be taken into account by the Tribunal and any orders for costs pursuant to any conditional costs agreement.

5.    If agreement cannot be reached on the matters identified in Order 4 of these orders within 14 days of the delivery of judgment, the parties are to arrange for this matter to be relisted and provide short minutes and brief submissions in support of the competing orders that they seek.

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

REASONS FOR JUDGMENT

HALLEY J:

A.    Introduction

1    The applicant seeks an order extending the time for him to seek judicial review of a decision of the second respondent, the Administrative Appeals Tribunal (Tribunal), on 14 March 2023 (Decision or DR), affirming a decision by a delegate of the first respondent (Minister) not to revoke a cancellation of the applicant’s visa.

2    The hearing before me proceeded by consent, on the basis that if I ultimately determined that it was appropriate in the interests of justice to extend the time for the filing of an application for review, that I would then determine the substantive review sought by the applicant.

3    The applicant was a self-represented litigant before the Tribunal but on this application was represented by Mr A. Hochroth and Ms K. Bones of counsel, on a pro-bono basis. The applicant affirmed two affidavits that were dated 14 May 2023 and 14 November 2023 in support of his application.

4    Mr J. Wherrett of counsel, appeared for the Minister.

5    For the reasons that follow, I have concluded that the applicant should be granted an extension of time to file the draft amended originating application and a writ of certiorari issue quashing the Decision.

B.    Background

6    The applicant is a citizen of the Philippines.

7    In 2001, the applicant arrived in Australia at the age of 20 with his father, stepmother, grandmother and two siblings. His wife and parents are Australian citizens. He and his wife have a son who is also an Australian citizen.

8    On 21 February 2017, the applicant pleaded guilty to two counts of aggravated sexual intercourse with a person more than 10 and less than 14 years of age, one count of aggravated sexual assault where the victim was under his care and one count of aggravated indecency with a person under the age of 16 years. In addition, the applicant asked that three additional counts of aggravated sexual assault be included in the sentencing. The victim in each case was the applicant’s stepdaughter.

9    On 25 August 2017, the applicant was sentenced by a Judge of the District Court of New South Wales to an aggregate sentence of 10 years and 6 months imprisonment, with a non-parole period of 7 years, 10 months and 15 days.

10    On 25 May 2020, the applicant’s five-year resident return visa (Class BB, Subclass 155) was cancelled under s 501(3A) of the Migration Act 1958 (Cth) (Act) (cancellation decision).

11    Section 501(3A) of the Act provides:

501    Refusal or cancellation of visa on character grounds

Decision of Minister or delegate–natural justice applies

(3A)    The Minister must cancel a visa that has been granted to a person if:

(a)    the Minister is satisfied that the person does not pass the character test because of the operation of:

(i)    paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7) (a), (b) or (c); or

(ii)    paragraph (6)(e) (sexually based offences involving a child); and

(b)    the person is 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.

12    Sections 501(6) and 501(7) of the Act relevantly provide:

(6)    For the purposes of this section, a person does not pass the character test if:

(a)    the person has a substantial criminal record (as defined by subsection (7)); or

…

(7)    For the purposes of the character test, a person has a substantial criminal record if:

…

(c)    the person has been sentenced to a term of imprisonment of 12 months or more; or

13    If a visa is cancelled pursuant to s 501(3A) of the Act, the former visa holder can seek to have the cancellation revoked pursuant to s 501CA, which relevantly provides:

501CA    Cancellation of visa–revocation of decision under subsection 501(3A) (person serving sentence of imprisonment)

(1)    This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.

…

(4)    The Minister may revoke the original decision if:

…

(b)    the Minister is satisfied:

(i)    that the person passes the character test (as defined by section 501); or

(ii)    that there is another reason why the original test should be revoked.

14    The applicant sought revocation of the cancellation which was refused by a delegate of the Minister (Delegate) on 19 December 2022 (non-revocation decision).

15    On 20 December 2022, the applicant applied to the Tribunal for review of the non-revocation decision.

16    On 14 March 2023, the non-revocation decision was affirmed by the Tribunal. On 21 March 2023, the Tribunal published its written reasons for the Decision.

17    The applicant seeks to advance two grounds of review in a draft amended originating application annexed to his submissions on the application for an extension of time to file an application for judicial review of the Decision (draft amended originating application).

18    There was no dispute that the conditions leading to mandatory cancellation pursuant to s 501(3A) of the Act were met. The applicant has a “substantial criminal record” pursuant to s 501(7)(c) and at the time of the original decision, the delegate of the Minister was satisfied that the applicant was serving a sentence of imprisonment, on a full-time basis in a custodial institution.

19    The issue before the Tribunal, therefore, was only whether there was “another reason” to revoke the original decision under s 501CA(4)(b)(ii) of the Act.

C.    Decision of the Tribunal

20    After satisfying itself that the applicant had been convicted by a final judgment of a serious crime, the Tribunal then considered each of the “primary considerations” or “PC” and “other considerations” or “OC” contained in Ministerial Direction No. 99 entitled “Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 510CA” (Direction 99).

21    In its ultimate weighing up of the considerations in Direction 99, leading to its decision to affirm the cancellation decision of the Delegate, the Tribunal concluded that:

(a)    “Protection of the Australian community (PC1)” (protection of the community), “Family Violence committed by the non-citizen (PC2)” (family violence), “The expectations of the Australian community (PC5)” (expectations of the community) and “Impact on victims (OC3)” (impact on victims) were factors in favour of not revoking the cancellation decision;

(b)    “The strength, nature and duration of ties to Australia (PC3)” (ties to Australia) and “Extent of impediments if removed (OC2)” (extent of impediments) were factors in favour of revocation of the cancellation decision; and

(c)    “Best interests of minor children in Australia affected by the decision (PC4)” (best interests of minors), “Legal consequences of the decision (OC1)” (legal consequences) and “Impact on Australian business interests (OC4)” (business interests) were neutral considerations.

22    In considering the review grounds sought to be advanced by the applicant, it is necessary to have particular regard to the Tribunal’s reasoning for the primary considerations concerning protection of the community, family violence, best interests of minors and other considerations concerning impact on victims. I consider this reasoning below in addressing each of the proposed review grounds.

D.    Extension of time

23    Section 477A(1) of the Act provides that an application to this Court for judicial review of a migration decision must be made within 35 days of the decision.

24    Section 477A(2) of the Act provides that this Court may make an order extending that period if it is satisfied that it is necessary in the interests of justice to do so. The discretion is not confined by any express criteria, but the following considerations may be taken into account in the exercise of the discretion, (a) the length of the delay, (b) whether an acceptable explanation has been provided for the delay, (c) whether the respondent has suffered any prejudice, and (d) the merits of the substantive appeal, if leave were to be granted: JSMJ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1466 at [23] (Perry J), citing Tu’uta Katoa v Minster for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 96 ALJR 819; [2022] HCA 28 at [12]-[13] (Kiefel CJ, Gageler, Keane and Gleeson JJ), [39]-[40] (Gordon, Edelman and Steward JJ); Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 186; (1984) 3 FCR 344 at 348 (Wilcox J).

25    As Perry J observed in JSMJ at [25], the plurality in Katoa, stated at [17]-[18]:

it may be accepted that, in determining what is necessary in the interests of the administration of justice for the purposes of s 477A(2) (or s 477(2)), it will often be appropriate to assess the merits of the proposed grounds of review at a “reasonably impressionistic level”. That is because the interests of justice are likely to be advanced by granting an extension of time to an application with some merit, depending, of course, on other relevant factors. In this regard, it may be relevant, as Mortimer J observed, that an extension of time will confer upon the applicant not only the right to a determination of their substantive application on the merits but also a right of appeal from that judgment, if adverse to the applicant.

However, and as the plaintiff accepted, there will be circumstances in which it is appropriate for the Court to engage in more than an impressionistic assessment of the merits. For example, if the delay is lengthy and unexplained, the applicant may be required to show that their case is strong or even “exceptional”. In such a case, a proper exercise of the power conferred by s 477A(2) will not require the judge to confine their consideration of the merits to an assessment of what is “reasonably arguable” or some similar standard. In other cases, the proposed ground of review may be hopeless but it may be necessary to examine the proposed application in some detail to reach that conclusion. The broad power in s 477A(2) does not prevent a judge from undertaking such an examination and from relying upon that determination to refuse an extension of time.

(Citations omitted.)

26    The Minister opposed the application for an extension of time on the basis that the applicant’s explanation for his delay was inadequate and the proposed review grounds had insufficient merit to warrant any extension of time.

27    The applicant provided the following explanation in his affidavit dated 14 November 2023 for his failure to file his application for judicial review within 35 days of the Decision:

(a)    he was (and remains) in immigration detention;

(b)    he made enquiries about obtaining legal representation but he and his family had insufficient financial resources;

(c)    he called his Department of Home Affairs case manager, who gave him the phone number for LawAccess, who he then contacted, but was told by LawAccess that they could not assist;

(d)    he emailed this Court on 14 April 2023 (prior to the expiry of the time limit) explaining that his knowledge and financial resources were limited and that he had been trying to obtain legal advice without success, and asked for an extension of time to appeal;

(e)    the Registry responded on the same day, and provided the applicant with forms relevant to an application for an extension of time;

(f)    he did not know how to complete the forms, and continued seeking legal assistance; and

(g)    on 8 May 2023, a lawyer at Victoria Legal Aid sent the applicant instructions on completing the forms and he completed and lodged the forms promptly thereafter.

28    The Minister submits that an inability to obtain legal representation does not itself provide a sufficient basis for the Court to exercise its discretion to extend the time within which to file a notice of appeal and the proposed grounds lack sufficient merit to warrant an extension of time.

29    It can be accepted that an inability to obtain legal representation does not provide a sufficient basis for the Court to grant an extension of time but that is not the only basis on which the extension is sought by the applicant. The applicant took proactive steps to progress his application for judicial review within the time period. He has explained the practical difficulties that he encountered in that respect, he moved without delay once those practical difficulties were overcome, he was only 22 days late in ultimately filing the application and the Minister did not suggest that the delay had given rise to any prejudice.

30    Moreover, the consequences to the applicant if an extension were not granted are very substantial. The applicant would be removed from Australia and separated from his immediate family, all of whom are Australian citizens.

31    Further, I was satisfied, at a “reasonably impressionistic level”, that the grounds of review advanced by the applicant were reasonably arguable, given the content of the applicant’s written and oral submissions, as summarised below.

32    For these reasons, in my view, it is necessary in the interests of the administration of justice to make an order to extend the time to file the application for review.

E.    Ground 1

E.1.    Introduction

33    The first ground sought to be advanced by the applicant in the draft amended originating application is that the Tribunal failed to afford him procedural fairness (a) through questioning which deprived the applicant of a real and meaningful opportunity to present his case, and, alternatively, (b) by failing to put the applicant on notice that the primary consideration concerning the best interests of his son, may not be a factor in favour of revocation.

E.2.    Impugned questioning

E.2.1.    Overview

34    The questions asked by a Senior Member of the Tribunal in the following exchange with the applicant are the subject of the first limb of the first ground (impugned questioning):

SENIOR MEMBER:     […] I think you’ve covered all the aspects of the direction. Yes, I think - I can’t see that any part of the direction has not been dealt with. I think that’s - thank you HKRC. Maybe I’ll just ask one question, and it’s really a - I sense that you have remorse for what you did. And I sense that you understand the tension that your actions have caused within your family, particularly on the part of your step-daughter and your mother - or her mother, sorry - and your son and his relationship with your step-daughter. Would it not be better for them if you just weren’t here? Many people might say that to you. What do you think? What’s your response to that?---Maybe you’re right, yes. I think so, yes

35    The questioning occurred immediately after the solicitor for the Minister, Mr Palfrey, had concluded his cross-examination of the applicant.

36    A tape recording of the impugned questioning was played during the hearing. The tone used by the Senior Member was respectful and relatively neutral, other than a slight emphasis on the question “Is that what you think?”. The Senior Member spoke slowly and deliberately, with frequent pauses. He did not raise his voice or speak in an aggressive manner.

E.2.2.    Relevant legal principles

37    Section 39(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) relevantly provides that:

39    Rights of parties to present case–Divisions other than Security Division

(1)    Subject to sections 35, 36 and 36B, the Tribunal shall ensure that every party to a proceeding before the Tribunal is given a reasonable opportunity to present his or her case and, in particular, to inspect any documents to which the Tribunal proposes to have regard in reaching a decision in the proceeding and to make submissions in relation to those documents.

38    It has been said that the obligation under s 39(1), that the Tribunal give every party “a reasonable opportunity to present his or her case”, represents a statutory recognition of an obligation that the common law would imply in any event: Jagroop v Minister for Immigration and Border Protection (2014) 225 FCR 482; [2014] FCAFC 123 at [32] (Dowsett, Murphy and White JJ). Whether an applicant has been provided with the requisite opportunity to present their case is a matter to be determined objectively, having regard to all the relevant circumstances: Jagroop at [33]. The obligation imposed on the Tribunal by s 39(1) does not require it to ensure that a party takes the “best advantage” of the opportunity: Teuila v Minister for Immigration and Citizenship [2012] FCAFC 171 at [14] (Edmonds, Flick and McKerracher JJ) and the cases cited therein.

39    The fact that an applicant is unrepresented is a relevant circumstance which impacts the question of the fairness of the procedure adopted by the Tribunal: Dharma v Minister for Home Affairs [2019] FCA 431 at [65] (Griffiths J). What must be done to assist a litigant in person “depends on the litigant, the nature of the case, and the litigant’s intelligence and understanding of the case”: Minogue v Human Rights & Equal Opportunity Commission (1999) 84 FCR 438; [1999] FCA 85 at [27] (Sackville, North and Kenny JJ), citing Abram v Bank of New Zealand [1996] FCA 635 at 42 (Hill, Tamberlin and Sundberg JJ).

40    There will be a denial of procedural fairness where the effect of a decision-maker’s intervention is “to deprive the applicant of a real and meaningful opportunity to present [their] case”: Ikupu v Minster for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 74 at [50]. In Ikupu, Jagot J held that there was a denial of procedural fairness where the effect of a Tribunal’s direction was to deny the self-represented applicant an opportunity to contend that police reports relevant to his case, were inaccurate: at [44].

41    The questioning of a party or witness by a decision-maker can also “unfairly undermine the proper presentation of a party’s case”: R v T, WA (2014) 118 SASR 382; [2014] SASCFC 3 at [38] (Kourakis CJ, Vanstone and Anderson JJ agreeing). For example, interventions by the decision-maker can prevent a party from doing themselves justice in the giving of their evidence: Jorgensen v Fair Work Ombudsman (2019) 271 FCR 461; [2019] FCAFC 113 at [99] (Greenwood, Reeves and Wigney JJ), citing Michel v The Queen [2009] UKPC 41; [2010] 1 WLR 879 at [17] (Lord Brown). In Jorgensen, the Full Court concluded that the primary judge “significantly interrupted and disrupted the orderly flow of [the appellant’s] evidence”, was “sarcastic, disparaging and dismissive of significant parts of [the appellant’s] evidence” and pursued questioning that was “aggressive and, at times unfair questioning” which caused the appellant to “make concessions he may not otherwise have made”: at [148]. In Antipova v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 151 FCR 480; [2006] FCA 584 at [78], Gray J observed that the relevant Tribunal member had “repeatedly interrupted Ms Antipova’s answers, in an attempt to persuade her to make them briefer”. His Honour held that “[t]he result of the frequent interruptions, and the attempts of the Tribunal member to persuade Ms Antipova to be brief, was that she did not tell the Tribunal all that she could have, and all that she wanted to tell, about her case”.

E.2.3.    Submissions of the applicant

42    The applicant submits that the impugned questioning conveyed that the Tribunal “considered the morally right thing for him to do was to leave Australia”. For example, the leading question, “would it not be better for them if you just weren’t here”, along with the comment that “many people might say that to you” expresses a “moral view”. The Tribunal’s “moral view” would have been objectionable if they had been asked by Mr Palfrey for the Minister and gave rise to an even greater unfairness when they were asked by the Tribunal. The applicant submits that he agreed with the propositions put to him by the Tribunal because he felt he could not disagree with the Tribunal in the way that he could if the question was put by the Minister’s lawyer, in light of his past experience of criminal courts. He also submits that he was overcome with emotion as the impugned questioning invoked his strong guilt at his offending.

43    Next, the applicant submits that he was unable to explain all he wanted to about his case, including that he was fighting to stay in Australia not only for himself but also for his family and that he did not agree that leaving Australia was the best thing for his wife or son, nor the morally right thing to do. He submits that the timing of the Senior Member’s intervention, at the conclusion of his evidence, is a further relevant factor, as there was no opportunity for his answers to be qualified or explained in the course of further questioning.

44    The applicant submits that assessed objectively, the impugned questioning prevented him from doing himself justice in his evidence, through the Tribunal’s expression of a strong and hurtful view about the moral rectitude of his choices, in circumstances which reasonably made it difficult for the applicant to disagree.

E.2.4.    Submissions of the Minister

45    The Minister submits that it is “perfectly acceptable and appropriate” for a Tribunal member to question a witness, particularly given the inquisitorial rather than adversarial nature of proceedings before the Tribunal.

46    Next, the Minster submits that “the Tribunal merely decided to ask several further questions that it must have considered may assist it to resolve the review proceeding” and the questions could not fairly be characterised as conveying any view that the “morally right thing” for the applicant to do would be to leave Australia, or amount to an “expression of a strong (and hurtful) view about the rectitude of the applicant’s choices”. Rather, the questions were directed at whether the applicant agreed or disagreed that the impact of the applicant’s offending would be ameliorated by his removal from Australia.

47    The Minister then submits that consistently with s 39(1) of the AAT Act, the applicant was given a “reasonable opportunity” to say what he wanted to say, and he availed himself of the opportunity. The applicant prepared a written statement which was admitted into evidence, tendered statements from a number of family members and friends and was given an opportunity to make closing submissions after the Minister’s closing submissions.

48    The Minister submits that it was not the case that the Tribunal’s questioning resulted in the applicant’s “being disabled from making any submission he wished to make” and contrary to the applicant’s submissions, the impugned questioning did not “prevent the applicant from doing himself justice in his evidence”. More specifically, the Minister submits that it is clear from at least two other parts of the transcript that the applicant knew that he could give a negative answer to a question asked by the Senior Member, notwithstanding any claim by the applicant that he felt he could not disagree with the Tribunal. In this regard, the Court should find that the applicant knew at the time of the impugned questioning he could answer “no” if he did not agree with the questions put to him.

49    The Minister submits that while it is true, as the applicant submits, that “there was not an opportunity for the applicant’s answers to be qualified or explained in the course of further questioning”, nevertheless:

[T]here was a reasonable opportunity for the applicant’s answers to be qualified or explained during his closing submissions if he had wished to. The fact that the applicant was crying when responding to the Tribunal’s questions is not a sufficient basis to infer that he was unable to understand the question and give an honest answer, or that he was unable in closing submissions to correct an answer he had given if he realised he had given a wrong answer to the Tribunal

50    The Minister otherwise accepts that if the Court were to find that the applicant had been denied procedural fairness by reason of the impugned questioning, the error was material.

E.2.5.    Consideration

51    The impugned questioning was a most unfortunate approach for the Tribunal to take and I am satisfied that it denied the applicant procedural fairness for the following reasons.

52    First, the tape recording of the impugned questioning reveals that while the tone used by the Senior Member was neutral and respectful, the content of the questions and the manner in which they were framed clearly unsettled or negatively impacted the applicant. The tape recording reveals that the applicant was stumbling over his words, at times he was barely coherent, he was sobbing quietly and he responded very slowly to the questions put to him.

53    Second, I do not accept the Minister’s submission that the impugned questioning could fairly be characterised as the Tribunal merely asking further questions that it considered would assist it to make a decision. The inclusion of the leading questions, “Would it not be better for them if you just weren’t here?” and the statements “Many people might say that to you” were inherently suggestive, particularly to a vulnerable witness. The phrases “Would it not be better” and “Many people might say” convey an inherent evaluative moral judgment that they should be answered in the affirmative. The suggestive and leading content in the impugned questioning was further magnified by the gratuitous observations, irrespective of how well meaning the Tribunal might have intended to be, of “I see the suffering in you, but I also see the suffering that you recognise that you’ve inflicted upon your family” and “So I’m just trying to understand whether you feel in your heart that you would actually be doing the right thing if you actually left the country?”. The applicant was not only unrepresented, he was also a witness who had candidly conceded earlier in his cross-examination that he was deeply ashamed of his offending and was remorseful for the impact of that offending on his stepdaughter. It is hardly surprising that the applicant, in all the circumstances, felt he had no alternative but to agree to those propositions.

54    Third, I am satisfied that the practical effect of the impugned questioning was to extract concessions from the applicant that were fundamentally inconsistent with the case that he was seeking to advance before the Tribunal. The impugned questioning was directed at, one of, if not, the most critical considerations that the applicant was seeking to establish, namely the best interests of minors and family favoured a revocation of the cancellation decision. These considerations were always going to be very important for the applicant, particularly because the seriousness of his offending was always going to weigh very strongly against a revocation of the cancellation decision.

55    The extent of the inconsistency of the answers given by the applicant in the impugned questioning with the case that the applicant was seeking to advance is demonstrated by the statements that the applicant had provided to the Tribunal in advance of the hearing.

56    The handwritten statement from the applicant included the following representations (as written):

Please be merciful and give me a chance to stay in Australia with my family. I need them more than they need me to restart my life. Please give me a chance to care and provide for them. I can be the best I can be Australia can provide all the tools for me. Family Support most of them are here my Mother, Wife, Son, Father, Aunties, half Brother and Sister and Cousins and friends.

…

Please reconsider my Mothers condition and let me care for her for I am the one of the few immediate family of her.

57    The handwritten statement from the applicant’s wife included the following statements (as written):

I CHOOSE TO FORGIVE HIM BECAUSE HIS REMORSEFUL, REGRET OF WHAT HE DID.

…

HE WILL BE GUIDED AND GET A SUPPORT FROM HIS LOVE ONES WHO TRULY BELIEVED THAT HIS NOT A THREAT TO THE SOCIETY.

OUR SON…FORGAVE HIM. HE GRANTED HIS FORGIVENESS TO HIS DAD.

58    The handwritten statement from the applicant’s mother included the following plea (as written):

I’m on my knee seeking your kind consideration and find in your heart to give him a second chance to stay here in Australia to live with his family, his wife and his son to start a new life. Like me I want him here too, I’m already old with chronic disease, I need my son too as he is my only immediate family here in Australia, i need his presence, his love and his care, like he needs me too around him physically to guide him, to support him morally spiritually to be the best he can be.

59    It is clear from these statements that the applicant both wished to stay in Australia and that it was in the best interests of his family, including his son, that he remain in Australia.

60    Fourth, I accept the explanations given by the applicant for his concessions during the impugned questioning and the evidence that he could have given if that questioning had not been pursued by the Senior Member. The applicant was cross-examined for a little over an hour by Mr Wherrett for the Minister. The applicant found the questioning, at times, difficult to follow, his answers were given slowly and with frequent pauses but I was satisfied that he was giving answers that were truthful to the best of his recollection. Most significantly, he did not seek to claim that the answers that he gave in the course of the impugned questioning were not truthful, as made clear in the following exchange:

MR WHERRETT:    Well, you say at paragraph 8 [of his 14 November 2023 affidavit]:

61    The cross-examiner, however, did not seek to elicit any concession from the applicant that he did not genuinely feel guilty and stressed when giving evidence during the impugned questioning. That was the critical issue and it was never directly addressed by the Minister.

62    Having observed the demeanour of the applicant in the course of his cross-examination by Mr Wherrett and having heard the audio recording of the impugned questioning, I accept the following evidence that the applicant gave in his affidavit dated 14 November 2023:

6.    The lawyer for the Minister was the one talking most of the time. He was talking to the judge a lot. I answered the questions the Minister’s lawyer asked me. Every now and then, the judge would ask me questions.

7.    There is one part of the hearing that I remember most. The judge asked me a question to the effect of, “isn't your family better off without you here.”

8.    This question just crushed me. I was really stressed and I was crying. The guilt I felt was too much.

9.    I wasn’t expecting the judge to ask me a question like that.

10.    I have been to the court many times before the AAT, and I know you always must respect the judge. When the judge asked me that question, it really hurt me. Out of respect to the judge, I had to answer him. I agreed with what the judge said to me.

11.    I am a guilty person, and my guilt stays with me. Being asked that question by the judge, my emotions took over me. From the guilt, I agreed that I should leave.

12.    I don’t remember much of the hearing after that question from the judge. In preparing this affidavit, I have been shown pages 33-34 of the transcript of the hearing. I see that the judge asked me whether I really thought I would be killed if I go back to the Philippines, and I said “I reckon I could take the risk. I think I'm - I think I could go back, yes.”

13.    I gave that answer because the guilt I felt was very strong. The emotion took over. Feeling that guilt, it doesn’t matter to me if I take the risk to go back to the Philippines and get hurt or killed.

14.    If the questions had come from the lawyer for the Minister, I would have felt different. I feel more comfortable against the lawyer. That is how the case is meant to go: it is me against the lawyer. It is not me against the judge. I have to bow to the judge and respect what he says.

15.    If the question came from the lawyer, it would have changed my approach and my answer.

16.    If I had been asked by the lawyer, “isn't your family better off without you here?”, I would have said, “I am not fighting for myself only, I am fighting for my family.”

17.    If I was asked, “is it better for your wife if you left Australia”, what I would have wanted to say is: “no. My wife has forgiven me. She has given us the chance to be together. My wife wants me to stay. My family wants me to stay.”

18.    If I was asked, “is it better for your son if you left Australia”, what I would have wanted to say is: “I think I'm better off here for him. I want to fix my relationship with him and I am going to try to do that. If I am allowed to stay, I am able to support him and guide him. I had a bad childhood, and I want better than that for my son. I am a Christian. I learnt more about the Bible while I was in jail, and it helps me stay positive. I spoke to my wife a lot about what I learnt in jail, and now she is a Christian too. My son has heard us talking about it, and now he is starting to ask more about the Bible to my wife. This is a part of my son’s life where I can guide him. It is better if I am here, to be there for him if he is ever in trouble. I want to teach him to stay out of trouble, from my own experience. I have lost so much time with him.”

19.    If I was asked whether I felt in my heart that I would be doing the right thing if I left the country, I would have disagreed. I would have wanted to explain: “I am guilty and I have done wrong. But I have lived here half of my life, for most of my adult life. My family is here. There are a lot of reasons for staying that make it the right thing to do: to stay with my family. To look after my mum, my wife, and my son. My family has forgiven me. I think that to say that I must leave, does not understand forgiveness. Forgiveness is difficult, it is the hardest thing to do. My wife and my son have done that.”

20.    If I was asked, “do you really think you’re going to be killed if you go back to the Philippines”, I would have said “yes”. I would have wanted to explain, “I do think it is a serious risk. My offences are known in my community in the Philippines, and it is a big deal.”

21.    If I was asked, “You have a large family there, and if anybody hurt you surely they would have to face your family as well?”, I would have explained: “Having a large family doesn't mean I would be protected. My family are poor, they have nothing. They don’t have influence to defend themselves. It is money and influence that runs everything in the Philippines. Having a huge family, but they’re all poor, it’s not going to do anything.”

63    This evidence of the applicant not only goes to his mental state during the impugned questioning but also the answers that he would have given had that line of questioning been pursued by Mr Palfrey rather than the Senior Member.

64    I accept that the applicant’s evidence of the different answers he would have given needs to be considered with some caution given potential hindsight bias. I am satisfied, however, that giving evidence to that effect would be consistent with the apparent logic of events, given the case that the applicant otherwise had sought to advance in his written statement and the written statements from his wife and mother that he had provided to the Tribunal.

65    Fifth, the Minister’s challenge to the applicant’s evidence that he understood that “he was required to respect what the Senior Member said” does not assist the Minister. The Minister submits that the applicant’s negative responses to two questions posed by the Tribunal demonstrated that this evidence could not be accepted.

66    As to the first example, responding “no” to a question about whether he still believed engaging in sexual abuse would make him feel better certainly did not constitute any disagreement with a view explicitly or implicitly advanced by the Tribunal. The question, unlike the impugned questioning, did not convey with it any inherent suggestion that it should be answered in the affirmative.

67    The second example relied upon by Minister, namely an alleged “no” in response to a question about whether the applicant talks to his wife was misconceived. The applicant did not answer “no” to the question asked by Mr Palfrey, as demonstrated in the following extract from the transcript of the hearing before the Tribunal:

SENIOR MEMBER:    Sorry. You don’t talk to you wife anymore? ---No. No. I talk to my wife, like, every day but I think she – they with- they---

MR PALFREY:    Your stepdaughter?--- -- my wife’s daughter, I think they stopped talking to each other.

68    Further, and in any event, even assuming the applicant thought he could answer “no” during the impugned questioning, that does not address the evidence given by the applicant that he was feeling stressed and guilty during the impugned questioning and for that reason, had agreed with the questions put to him by the Tribunal.

69    Sixth, I do not accept that offering the applicant, as a self-represented litigant, a chance to say “anything at all at this point” after Mr Palfrey, for the Minister, had completed his oral closing submissions, provided the applicant with a meaningful opportunity to advance the submissions he wished to make to the Tribunal. The necessity of addressing in final submissions what weight the Tribunal should place on the answers that he gave during the impugned questioning could not be expected to be readily apparent to a self-represented litigant.

70    The Tribunal did not ask the applicant to clarify the disconnect between the case that he had advanced in the written statements that he had provided to the Tribunal and his evidence in the impugned questioning. The applicant’s demeanour during that questioning, as is evident from the tape recording, would have made it readily apparent to the Tribunal the stress that the applicant was under.

71    In all the circumstances, given the absence of any express request from the Tribunal to the applicant to clarify his position in closing submissions with respect to the impugned questioning, it does appear that the Tribunal was proceeding on the basis that the applicant had conceded that it would be better for his family if he was removed to the Philippines. The significance of the answers given by the applicant to the Tribunal during the impugned questioning was not lost on the Tribunal, as was evident in the following remarks by the Senior Member at the conclusion of the questioning:

Yes. Well thank you HKRC. I won’t treat that [as] an application to withdraw the application, Mr Palfrey. But thank you HKRC. I think your response does indicate the difficulty and complexity of this sort of matter for the tribunal.

72    In any event, the concessions given by the applicant in the course of the impugned questioning would present a significant challenge for even a skilled advocate to seek to persuade the Tribunal that it could discount those concessions in determining whether the best interests of minors and family weighed in favour of revocation of the cancellation decision. It is not at all apparent how the “damage” to the applicant’s case in the impugned questioning could realistically be ameliorated in closing submissions. The die was well and truly cast by the conclusion of the impugned questioning.

73    Finally, as conceded by the Minister, I am satisfied that the denial of procedural fairness, by reason of the impugned questioning was material. There was at least a “realistic possibility” that had the impugned questioning not taken place, the Tribunal could have come to a different decision, if there had not been a concession by the applicant that his family would be better off he were removed to the Philippines: see CCU21 v Minister for Home Affairs [2023] FCAFC 87 at [81]-[82] (Perram, Halley and Goodman JJ), citing MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506; [2021] HCA 17 at [39] (Kiefel CJ, Gageler, Keane and Gleeson JJ).

74    The applicant has established that the first limb of ground 1 has given rise to jurisdictional error.

75    The applicant’s success on this ground is dispositive of the application for a review. Nevertheless, in the event that this matter is taken further, I now turn to consider the balance of the review grounds raised by the applicant.

E.3.    Failure to put on notice

E.3.1.    Overview

76    The impugned questioning took place immediately after Mr Palfrey had completed his cross-examination of the applicant. The Tribunal briefly adjourned after the impugned questioning for approximately 11 minutes and Mr Palfrey then made oral closing submissions. In the course of those submissions, he submitted that the Minister’s position on two of the primary considerations in Direction 99 had now changed from that advanced in the Minister’s Statement of Facts, Issues and Contentions, in view of the applicant’s answers in the course of the impugned questioning. He submitted that the Minister’s position was now that those considerations did not favour the applicant. In particular, he submitted, with respect to the primary consideration concerning the best interests of minors that “on the applicant’s own evidence, the best interests of the minor child is that he not return to the community, and it’s better he return to the Philippines”.

77    After Mr Palfrey had completed his oral closing submissions, the Tribunal then stated to the applicant:

[T]his is your opportunity sir. Would you like to say anything at all at this point?

78    In response, the applicant referred to the impact that his removal to the Philippines would have on his mother and stated that he was not a risk to anyone. He also acknowledged that he had “done wrong” and he had “learnt from it”.

79    The Tribunal did not ask the applicant to address the change in the Minister’s approach to the primary consideration concerning best interests of minors as a result of the answers given by the applicant during the impugned questioning. Nor did the Tribunal ask the applicant to address any other issue in the course of the applicant making his brief oral closing submissions.

80    Ultimately, the Tribunal determined that it was “not possible for the Tribunal to determine whether revocation is or is not in the interests of [the applicant’s] son”, and that it was “satisfied that this consideration is neutral, it weighs neither for nor against revocation of the mandatory cancellation”: DR at [86]-[87].

E.3.2.    Relevant legal principles

81    The obligation to afford procedural fairness relevantly required the Tribunal “to bring to [the applicant’s] attention the critical issue or factor on which the administrative decision is likely to turn so that [they] may have an opportunity of dealing with it”: Kioa v West (1985) 159 CLR 550; [185] HCA 81 at 587 (Mason J).

82    A decision-maker is not obliged to expose their mental processes or provisional views for comment before making the decision unless they reach an adverse conclusion which would not obviously be open on the known material”: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 at [29] (Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ), citing Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 591-592 (Northrop, Miles and French JJ).

E.3.3.    Submissions of the applicant

83    The applicant submits that the Tribunal, by failing to put the applicant on notice of a relevant issue, denied him procedural fairness.

84    The applicant submits that he was not put on notice that the Tribunal might depart from the position taken by the Delegate and by the Minister in writing, and instead find that that what was in the best interests of his son could not be determined. The impugned questioning did not put the applicant on notice of this issue. The Tribunal did not directly ask about the best interests of the applicant’s son. Rather, what was best for the applicant’s son was bundled into the Tribunal’s proposition about “the tension that your actions have caused within your family, particularly on the part of your stepdaughter and your mother - or her mother, sorry - and your son and his relationship with your step-daughter”.

85    Next, the applicant submits that a “general invitation” to the applicant after the Minister’s submissions to say “anything at all at this point”, does not, “absent any further articulation of the change in the Minister’s position, afford a self-represented litigant procedural fairness”, citing the statement by Meagher J to that effect in Buntin v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1055 at [81].

86    The applicant submits that in assessing materiality, it is to be assumed that “if given a fair opportunity to present their case, a party will take advantage of that opportunity and that, by doing so, the party could achieve a favourable outcome”, referring to the statements by the plurality in Nathanson v Minister for Home Affairs (2022) 96 ALJR 737; [2022] HCA 26 at [33] (Kiefel CJ, Keane and Gleeson JJ). The applicant submits that had he been afforded a fair opportunity to present his case, he could have provided further evidence or submissions to explain why it was in the best interests of his son for him to remain in Australia, including by requesting that the Tribunal call his wife.

E.3.4.    Submissions of the Minister

87    The Minister submits the applicant was on notice prior to the hearing before the Tribunal that the Minister was contending for a determination in relation to best interests of the applicant’s son that was different to the view of the Delegate. The Delegate had concluded that it was in the best interests of the applicant’s son that the cancellation be revoked. In his written submissions to the Tribunal, the Minister had contended that “the Tribunal should accord limited weight to this consideration in favour of revocation”.

88    Next, the Minister submits that in the course of Mr Palfrey’s oral closing submissions, the applicant was put on notice that the Minister would now be contending “based on the evidence today” that “on the applicant’s own evidence, the best interests of the minor child is that he not return to the community, and it’s better he return to the Philippines”. The Minister also referred to this evidence in the context of Mr Palfrey’s submissions on the strength, nature and duration of ties to Australia.

89    The Minister submits that the failure of the Tribunal to put the applicant on notice that it may reach the conclusion that it was “not possible for the Tribunal to determine whether revocation is or is not in the interests of [the applicant’s] son”, and that it was satisfied that the consideration was “neutral” was not a denial of procedural fairness. The Minister submits that given the position that he took in both written and oral submissions, “this was an adverse conclusion that was obviously open on the known material”.

90    Finally, the Minister submits that the alleged error was not material. He submits that, as explained in CCU21 at [82], the decision of the High Court in MZAPC, requires the applicant to:

prove historical facts from which it may be inferred that there was a realistic possibility that the [decision-maker] could have decided to revoke the cancellation decision

91    The Minister submits that given the applicant’s acceptance that his son was “still suffering” and his concessions in the impugned questioning that his family, which must have included his son, would be better off if he “just wasn’t here”, there is no realistic possibility that the Tribunal could have found that it was in the best interests of the son to revoke the cancellation decision.

E.3.5.    Consideration

92    I am not persuaded that any failure by the Tribunal to ask the applicant to address the Minister’s change of position on the primary consideration concerning the best interests of minors or to put the applicant on notice that it was proposing to conclude that it was not possible to determine the best interests of the applicant’s son, amounted to any denial of procedural fairness.

93    First, the applicant was on notice prior to the Tribunal hearing that the best interests of his son was an issue that he had to address. The applicant was aware that the Minister was contending at the Tribunal hearing, contrary to the position taken by the Delegate, that the best interests of minors should be given “limited weight” rather than a consideration that “weighed in favour” of revocation of the cancellation decision.

94    The distinction between “afforded little weight” submitted by the Minister prior to Mr Palfrey’s closing submissions and the “neutral” finding ultimately made by the Tribunal at DR [87] was relatively immaterial. A submission that a consideration be “afforded little weight” only rises marginally above a submission that a consideration is “neutral”. In both cases, the consideration could not be expected to tip the balance in favour of or against a revocation of the cancellation decision. Hence, the change of position by the Minister ultimately did not lead to any substantive prejudice to the applicant. The Tribunal did not accept the Minister’s changed position and the neutral finding it ultimately made was not materially different to the position advanced by the Minister prior to the hearing. In those circumstances, the Minister was not under any obligation to expressly raise with the applicant that it was proposing to make a finding that the best interests of minors was a neutral consideration.

95    Second, as the Minister submits, the relevant test for materiality still requires an applicant to “prove historical facts from which it may be inferred that there was a realistic possibility that the [decision-maker] could have decided to revoke the cancellation decision”. As the Full Court stated in CCU21 at [86] the plurality’s reasons in Nathanson at [33] amounted to a change in the law that was not agreed to by a majority of the High Court. The Full Court stated that it was, therefore, “bound to apply” the earlier decision in MZAPC “without regard to the reformulation of the plurality” in Nathanson at [33].

96    As the Full Court explained in CCU21, the decision in MZAPC requires the applicant to “prove historical facts from which it may be inferred that there was a realistic possibility that the [decision-maker] could have decided to revoke the cancellation decision”: at [82]. In the present case, the applicant accepted that his son was “still suffering”, which was evidence specifically referred to in the Decision. In addition, the applicant accepted in the course of the impugned questioning, in answer to questions put by the Senior Member, that it would be “better for [his family, which relevantly included his son] if [the applicant] just weren’t here”. Given those answers, in my view, it is not plausible that the Tribunal could have concluded that it was in the best interests of the applicant’s son to revoke the cancellation decision. I am, therefore, satisfied that there is no realistic possibility that the Tribunal could have come to a different decision had the Tribunal otherwise raised its alleged change of position with the applicant or its proposed finding.

97    The second limb of ground 1 does not give rise to any jurisdictional error.

F.    Ground 2

F.1.    Introduction

98    Ground 2 concerns the Tribunal’s application of Direction 99 which decision-makers are required to take into account in reaching a state of satisfaction on whether there is “another reason” for why the visa cancellation should be revoked under s 501CA(4) of the Act. The applicant contends in ground 2 that the Tribunal failed to correctly interpret and apply the primary consideration of family violence and other consideration of impact on victims, as outlined in Direction 99. As a result, the applicant contends that the Tribunal failed to complete the statutory task required by s 501CA(4) of the Act and/or failed to take into account mandatory relevant considerations, and so fell into jurisdictional error.

F.2.    Family violence

F.2.1.    Overview

99    Clauses 8.2(2) and 8.2(3) of Direction 99 provide:

8.2    Family violence committed by the non-citizen

(2)    This consideration is relevant in circumstances where:

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

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

(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.

F.2.2.    Submissions of the applicant

100    The applicant submits that the Tribunal failed to recognise and evaluate the specified factors in cl 8.2(3) of Direction 99, which were required to be considered in evaluating the seriousness of the family violence engaged in by the non-citizen.

101    The applicant submits that the factors in cl 8.2(3)(a) to cl 8.2(3)(c) arose for consideration on the material before the Tribunal. The applicant submits that as only one of his offences met the definition of “family violence”, cl 8.2(3)(a) and cl 8.2(3)(b) would “not appear to weigh against the applicant” and in relation to the factors in cl 8.2(3)(c)(i) to cl 8.2(3)(c)(iii) there was the following evidence before the Tribunal:

a.    As to [cl 8.2(3)(c)(i)], reports from the applicant’s time in custody record that he accepted responsibility for his conduct. At hearing, the applicant confirmed that he accepted responsibility for his offending, and did not hold any blame for the victim.

b.    As to [cl 8.2(3)(c)(ii)], the applicant wrote in his statement to the Tribunal, “I am very sorry for the pain, damages, suffering and abused [sic] that I have committed against [the victim] when she was still a child. I know that what I did the abused [sic], molestation and rape will [haunt] her for the rest of her life. I have ask for forgiveness from her and from the rest of her family.”. At hearing, the applicant was questioned by the Minister’s representative, with prompting from the Senior Member, about his understanding of the impact of his offending. The applicant articulated the trauma, psychological impact and social impact of his offending on the victim.

c.    As to [cl 8.2(3)(c)(iii)], the applicant gave evidence that he had made efforts to participate in a sex offender program while in custody. The Tribunal accepted that the applicant “was deemed ineligible to receive appropriate therapeutic support because of a low risk of recidivism” (which in the view of the Tribunal was “lamentable”).

(Footnotes and Court Book references omitted.)

F.2.3.    Submissions of the Minister

102    The Minister submits, by reference to the decision of Thawley J in Oluwafemi v Minister for Home Affairs [2018] FCA 1389, that it is not necessary for the Tribunal to make specific findings in relation to each factor outlined in cl 8.2(3). The Minister submits, therefore, that the Tribunal did not err in not referring specifically to each of the factors mentioned in cl 8.2(3) of Direction 99 in concluding at DR [69] that the applicant’s behaviour on 18 November 2014 “amounted to an egregious form of family violence”.

103    The Minister submits that there could be no error in not referring to the factors in cl 8.2(3)(a) and cl 8.2(3)(b) because they were not “relevant” as there was only one offence of “family violence”.

104    The Minister otherwise submits that the factor outlined in cl 8.2(3)(c) was considered if the reasons of the Tribunal are read as a whole. The Minister submits that in considering the “evidence of rehabilitation achieved by the time of the decision” for the purposes of cl 8.1.2(b)(ii), the Tribunal concluded that “some concerns remain” and then referred to:

(a)    the pre-release report dated 8 July 2022 prepared by Corrective Services NSW, which said that the applicant avoided discussing his offending behaviour and subsequent victim impact;

(b)    the view of Mr Bolton, Team Leader of Corrective Services NSW, that the applicant lacked insight and victim empathy;

(c)    the applicant’s ineligibility to undertake offence specific therapeutic intervention, which was “lamentable” as participation in such a program “may have significant evidentiary … value”;

(d)    the pre-release report’s noting that the applicant claimed to take responsibility for his offending behaviour; and

(e)    the absence of an “evidentiary basis for concluding that his sexual drive or tendencies with respect to young girls have abated”, meaning there “must inevitably be some risk that he may relapse if the opportunity presents”.

(Court Book references omitted.)

105    The Minister submits that this evidence was also relevant to the Tribunal’s consideration of cl 8.2(3)(c).

106    Finally, the Minister submits that even if the Tribunal failed to discharge its statutory task, the error could not be material. The Minister submits that the earlier findings made by the Tribunal would simply have been restated and the Tribunal would have come to the same decision.

F.2.4.    Consideration

107    I accept the Minister’s submission that it was not necessary for the Tribunal to refer to each of the factors outlined in cl 8.2(3).

108    The provision considered by Thawley J in Oluwafemi was cl 11.2 of Direction No. 65 entitled “Visa Refusal and Cancellation under s 501 and revocation of a mandatory cancellation of a visa under section 501CA”. Direction No. 65 was an earlier iteration of Direction 99.

109    Clause 11.2 of Direction No. 65 identified a number of factors that had to be considered “where relevant” in considering the bests interests of the child. Thawley J rejected an argument advanced in Oluwafemi that the Tribunal erred in failing to consider those factors. His Honour stated at [41]:

In my view, reading the decision of the Tribunal consistently with the principles in Wu Shan Liang, it is clear that the Tribunal directed its mind to the best interests of the minor child as required by paragraph 11.2 of the Direction and found that the best interests of the child lay in favour of granting the applicant the visa. It was not necessary for the Tribunal to refer specifically in its reasons to each of the factors mentioned in paragraph 11.2(4) of the Direction as ones which must be considered. The fact that the Tribunal did not refer to them specifically in this case does not establish that it failed to consider those matters. It did not err in failing to make an express finding as to what the best interests of the minor child were.

110    In my view, as submitted by the Minister, the Tribunal did not err in not expressly referring to the considerations in cl 8.2(3)(a) and cl 8.2(3)(b). The hearing before the Tribunal proceeded on the basis that there was a single act of family violence. It follows that considerations directed at the frequency of acts of family violence, trends of increasing seriousness and the cumulative impact of repeated acts of family violence, would not be relevant.

111    Nor, in my view, did the Tribunal err in not referring expressly to the considerations in cl 8.2(3)(c). As the Minister submits, the matters referred to by the Tribunal in its consideration of “evidence of rehabilitation achieved by the time of the decision” in addressing cl 8.1.2(2)(b)(ii) were plainly equally relevant to its consideration of “rehabilitation achieved at time of decision since the person’s last known act of family violence”. A decision of the Tribunal must be read as a whole and in my view, that the matters identified in [104] above in addressing the family violence consideration are not repeated or referred to by inserting an express cross reference, does not constitute error. As the Minister submits, it does not follow that if reasons are expressed sequentially, that factual issues are decided in isolation from others: Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30 at [4] (Gleeson CJ), and the Tribunal’s conclusion in its consideration of cl 8.2 that the applicant’s behaviour was “an egregious form of family violence” came after the Tribunal’s consideration of cl 8.1.2.

112    In any event, I am satisfied that there was not a realistic possibility that the Tribunal could have come to a different decision had the alleged error not occurred. The findings made by the Tribunal earlier in its decision record that are summarised at [104] above, would have been equally applicable to cl 8.2(3)(c) and it is implausible given the content of those findings that the Tribunal could have come to a different conclusion.

113    The first limb of ground 2 does not give rise to any jurisdictional error.

F.3.    Impact of decision on victims

F.3.1.    Overview

114    The Tribunal addressed cl 9.3 of Direction 99 in the following terms in its Decision:

103.    The Direction provides:

(1)    Decision-makers must consider the impact of the … decision on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen … who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.

104.    At the time of the sentencing hearing in 2017, the applicant’s stepdaughter was deeply traumatised by his behaviour. The sentencing judge referred to a victim impact statement provided by her, and said:

The complainant made a victim impact statement … She stated:

“Words can't even begin to describe what it is like not being able to remember anything about my child other than being sexually abused, living in constant fear, not of the outside world but feeling afraid and unsafe within a place I was supposed to call home.”

“The abuse still lies fresh in my mind and all I feel is pain, guilt, anger, confusion and frustration. I have become distant and isolated from most people as a result. I have lost all my friends due to feeling so much shame and embarrassment all the time. I am afraid. I still wonder why I feel severe anxiety even though I know I am safe. I live in endless fear that it is going to happen again, as a result feel highly uncomfortable around men, always feeling the need to get ready and have my guard up.”

Her years of being sexually abused have affected her academic progress. She attempted suicide by taking an overdose of sleeping pills. She does not go a day without thinking the offender is going to hurt her. She says:

“Everyone deserves a happy childhood and I was stripped of mine.”51

She is currently attending counselling sessions to overcome the grief and she says she is living her life with memories that will not go away. I have taken her victim impact statement into account.

105.    There is nothing to suggest that the passage of time has altered the victim’s attitude towards the applicant. Indeed, evidence given by the applicant at the hearing is that his wife’s forgiveness of him had caused a fracture with her daughter, and that this had in turn produced tensions with their son, who had withdrawn from the applicant.

106.    The victim and the applicant share the same close family members. The impact on those other family members has been considered above.

107.    Overall, I consider that this consideration weighs firmly in favour of non-revocation of the mandatory cancellation.

F.3.2.    Submissions of the applicant

115    The applicant submits that the Tribunal’s reasoning with respect to cl 9.3 of Direction 99 was limited to the impact of the applicant’s offending on the victim, which is not the question imposed by cl 9.3. He submits that the relevant “impact” to be considered is of the impact of any decision that would result in the applicant remaining in or being removed from, Australia (removal decision), citing the Full Court’s decision in Manebona v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 116 at [134] (Logan, Rangiah and Goodman JJ).

116    The applicant submits that the Tribunal did not consider whether, and if so, in what way, the applicant’s stepdaughter would be impacted by the removal decision. He submits that the impact of the applicant’s offending on the victim had already been considered at DR [42]-[43] in considering the family violence primary consideration and it was assessed at DR [61] to weigh heavily against the applicant. He submits that the consequence of the Tribunal’s misconstruction of cl 9.3 was to weigh this matter against the applicant twice.

117    The applicant submits that the Tribunal was correct to reject the Minister’s submission that it was “reasonable to assume”, by reference to the victim’s impact statement in 2017, that allowing the applicant to stay in Australia would have an adverse impact on his stepdaughter’s mental health because his mere presence in Australia would “undoubtedly cause her fear”. The applicant submits, however, that the Tribunal erroneously failed to make any findings as to the impact or otherwise of the decision on the applicant’s stepdaughter.

118    The applicant submits that the Tribunal’s error was material. He submits that had the Tribunal correctly considered and applied cl 9.3, it would have concluded that there was no evidence on the impact of the decision on the applicant’s stepdaughter (or any other member of the community not addressed under other considerations) and, therefore, no weight could be attributed to this consideration. He submits that at the very least, it was not inevitable that the Tribunal would have concluded that this consideration weighed “firmly in favour of non-revocation”.

F.3.3.    Submissions of the Minister

119    The Minister submits that, read fairly, the Tribunal was satisfied that a decision not to revoke the cancellation decision, which would result in the applicant remaining in Australia, would have a negative impact on the victim. The Minister submits that given the content of the victim impact statement made in 2017, it was open to the Tribunal to conclude that the impact on the victim of the applicant remaining in Australia weighed firmly in favour of non-revocation of the cancellation decision.

120    Next, the Minister submits that it was not an error for the Tribunal to consider the impact of the applicant’s offending on the victim twice, referring to the statements by the Full Court in JZQQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 168 at [51], [53] and [54] (Katzmann, Sarah C Derrington and Kennett JJ).

F.3.4.    Consideration

121    I am not satisfied that the Tribunal failed to take into account a mandatory relevant consideration or constructively fail to complete its statutory task under s 501CA(4) of the Act with respect to cl 9.3 of Direction 99.

122    First, the Tribunal reproduced the content of cl 9.3 at DR [103]. It could not be suggested that the Tribunal overlooked that cl 9.3 was directed at the impact on the victim of the removal decision rather than the impact of the offending on the victim.

123    Second, I do not accept the applicant’s submission that there was no evidence of the impact of any revocation decision on the applicant’s stepdaughter (or any other member of the community not addressed under other considerations) and thus no weight could be attributed to this consideration. I am satisfied that it was open to the Tribunal to rely on:

(a)    the compelling explanation of the impact of the offending on the applicant’s stepdaughter in her victim impact statement;

(b)    the absence of any suggestion she had since altered her attitude towards the applicant; and

(c)    the evidence given by the applicant at the hearing that his wife’s forgiveness of him had caused a fracture with her daughter,

to conclude that the consideration in cl 9.3 weighed firmly in favour of non-revocation of the cancellation decision.

124    Third, given the objective seriousness of the applicant’s offending and the compelling explanation of its impact on his stepdaughter, I do not accept that the Tribunal’s failure to expressly state in DR [105] that it was directing its remarks to the impact of the “decision” on the stepdaughter, not the impact of the “offending” on her, as a meaningful or relevant distinction.

125    Fourth, the matters to be taken into account in addressing mandatory and other considerations under Direction 99 may well overlap, particularly in circumstances where a consideration is expressed in general terms: see XSLJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1138 at [123] (in the context of Direction No. 79, an earlier iteration of Direction 99).

126    Moreover, as the Full Court stated in JZQQ:

53    Since the promulgation of Direction 99, there are now four primary considerations, and family violence is a matter which overlaps with three mandatory considerations. To paraphrase the passage of the Full Court in Moana v Minister for Immigration and Border Protection [2015] FCAFC 54; 230 FCR 367 at [63], the applicant’s argument assumes that there is a neat distinction between the primary considerations. …

54    …each consideration is directed at subtly different policy objectives which are articulated, primarily in the principles in para 5.2, but which permeate the entire Direction.

127    Consistently with this reasoning, it is readily apparent that cl 8.1.2(2)(a) and cl 9.3 are directed at different policy objectives. Clause 8.1.2(2)(a) is directed to the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct. Clause 9.3 is directed at the impact on victims and family members of the victims if the person is removed from or remains in Australia.

128    In considering cl 9.3, the Tribunal made a specific finding that the ongoing presence of the applicant in Australia would have a negative impact on the victim that would exist irrespective of whether the applicant engaged in any further offending. Hence, while the Tribunal considered the impact of the offending on the victim twice, it was considered from different perspectives and did not constitute any impermissible “double counting” of the same factor.

129    In any event, I am satisfied that any alleged error in construing cl 9.3 was not material. It is implausible that the Tribunal could have concluded that the impact of the applicant remaining in Australia on the victim would not have been a negative one, given the seriousness of the offending and the content of his stepdaughter’s victim impact statement. The applicant has not identified any other member of the community in respect of whom the impact of the decision was not considered by the Tribunal.

130    In my view, there is no realistic possibility that but for the alleged error, the Tribunal could have come to a different conclusion.

131    The second limb of ground 2 does not give rise to any jurisdictional error.

G.    Disposition

132    The applicant is to be granted an extension of time to file the originating application and leave to file the draft amended originating application.

133    An order is to be made for the issue of a writ of certiorari quashing the decision of the Tribunal. As Kennett J stated in WQKK v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 535 at [32], an order setting aside the decision of the Tribunal establishes that it “has not completed its review function, and it therefore remains under a statutory duty to do so”. Further, as Kennett J also stated in WQKK, in the absence of any evidence that the Tribunal will not comply with its statutory duty, there will be no need to make any further order. I am also satisfied that in this case, there is no evidence that the Tribunal would not comply with its statutory duty and, therefore, it is not necessary to make any further order.

134    At the conclusion of the hearing before me on 16 November 2023, counsel for the applicant indicated that if the applicant were successful, he would also seek orders that the matter be remitted to a differently constituted Tribunal and that the impugned questioning not be taken into account. Counsel also indicated that they might seek an order for costs pursuant to a conditional costs agreement. If agreement cannot be reached on these matters within 14 days of the delivery of judgment, the parties are to arrange for this matter to be relisted and provide short minutes and brief submissions in support of the competing orders that they seek.

135    Finally, it is necessary to express the Court’s appreciation and gratitude to the applicant’s counsel, Mr A. Hochroth and Ms K. Bones, who appeared for the applicant pursuant to a pro bono referral from the Court.

Associate:

Dated:    28 November 2023