Federal Court of Australia

Hofman v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 17

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The applicant must pay the costs of the first respondent as agreed or assessed by a Registrar.

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

REASONS FOR JUDGMENT

MEAGHER J

INTRODUCTION

1    The applicant is a 37-year-old citizen of the Netherlands. He was granted a Class BB Subclass 155 Five Year Resident Return visa in 1999 and has resided in Australia since then. On 27 August 2020, the applicant was convicted of eight offences including “rape”, “unlawful stalking uses/threatens violence contravenes/threatens to contravene and order/injunction”, “contravention of a domestic violence order”, “stealing” and “wilful damage”, all of which were categorised as domestic violence offences. He was subsequently sentenced to a concurrent term of imprisonment of eight years.

2    On 22 October 2020, the applicant's visa was mandatorily cancelled pursuant to s 501(3A) of the Migration Act 1958 (Cth). On 8 June 2022, after the applicant made representations to the Minister of Immigration, Citizenship and Multicultural Affairs seeking revocation of the visa cancellation, a delegate of the Minister decided not to revoke the visa cancellation pursuant to s 501CA(4) of the Act (Decision).

3    On 9 June 2022, the applicant applied to the Administrative Appeals Tribunal seeking review of the delegate’s Decision. On 31 August 2022, the Tribunal affirmed the delegate’s Decision and it published written reasons on 7 November 2022: Hofman and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration) [2022] AATA 3740 (Tribunal's Decision).

4    By an originating application filed on 23 June 2023, the applicant seeks orders pursuant to s 476A of the Act that the Tribunal's Decision be quashed, and that the Tribunal be required to re-determine the matter according to law. The applicant advances the following two grounds in support of his application:

1.    The Tribunal erred in law and hence fell into jurisdictional error by not according the Applicant procedural fairness in the conduct of its hearing

Particulars

a.    The Applicant relied on his own evidence and the written and oral evidence of seven witnesses.

b.    The Tribunal made adverse findings about the quality and credibility of the evidence of seven witnesses and hence did not give their evidence much weight.

c.    The Tribunal did not put those potential findings to the witnesses or otherwise signal to the applicant or the witnesses its concerns about their evidence.

d.    The Tribunal failed to accord procedural fairness to the Applicant by not informing him or the issue in the review, being the question of credibility of witnesses on whom he relied.

e.    The Tribunal further failed to accord procedural fairness to the Applicant by misinforming him as to the nature of submissions he could make, the misinformation being that his submissions must be restricted to material filed two days before the hearing and not expressly to include information that arose during the hearing.

f.    The Applicant was denied the opportunity to make submissions on witness credibility and on material arising in cross-examination.

2.    The Tribunal fell into jurisdictional error by legal unreasonableness

Particulars

a.    The Tribunal found that the interests of relevant minor children was not a particularly compelling feature of the case based on its finding (the Parental Role finding) that:

i.    the Applicant did not in substance wish to play a positive parenting role with respect to five minor children and that, even were he to do so, he was unlikely to be able to do so; and

ii.    the Applicant had an avuncular relationship with two other children.

b.    The Parental Role finding was illogical as it did not arise on the evidence, and was contrary to the Applicant’s sworn evidence.

c.    Further, in making the Parental Role finding:

i.    the Tribunal conflated a positive parenting role with co-parenting; and

ii.    the Tribunal formed the view that it was objectively unlikely that a court exercising jurisdiction under the Family Law Act 1975 would make orders that, inferentially, permitted a positive parenting role,

d.    The Tribunal found that the third primary consideration (PC3), being the best interests of minor children, was at best accorded slight weight in favour of revocation contrary to the evidence of the role of the Applicant in the lives of five minor children.

e.    The allocation of weight to PC3 was legally unreasonable in circumstances where the premise that the Applicant did not wish to play a positive parenting role was itself legally unreasonable and where the evidence was that three of the children had continuing contact with the Applicant.

f.    In the premises the Tribunal’s findings with respect to PC3 were legally unreasonable and its allocation of slight weight was legally unreasonable.

g.    The error was material in that a greater allocation of weight gave rise to the realistic possibility that a different decision could have been made.

5    For the reasons that follow, the application is dismissed.

key lEGISLATIVE PROVISIONS

6    According to s 501(3A) of the Act, the Minister must cancel a visa if he is satisfied that, inter alia, the visa holder does not pass the character test due to having a substantial criminal record and is serving a full-time custodial sentence. Pursuant to s 501(7) of the Act, a person is considered to have a substantial criminal record if, inter alia, the person has been sentenced to a term of imprisonment of 12 months or more.

7    The Minister may, pursuant to s 501CA(4) of the Act, revoke a mandatory visa cancellation if the person subject to the mandatory visa cancellation makes representations, and the Minister is satisfied that either the person passes the character test, or there is another reason why the mandatory visa cancellation should be revoked.

8    Section 499(1) empowers the Minister to make a written direction as to whether there is another reason why the mandatory visa cancellation should be revoked which, pursuant to s 499(2A) of the Act, the Minister’s delegate and the Tribunal are bound to apply. In this case the relevant direction is Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction 90 or Direction) which commenced on 15 April 2021. The Direction provides four "Primary Considerations" and four "Other Considerations" which are to be taken into account when making a decision under s 501CA(4) of the Act.  

9    The Primary Considerations include:

(1)    Protection of the Australian community from criminal or other serious conduct (Primary Consideration 1);

(2)    Whether the conduct engaged in constituted family violence (Primary Consideration 2);

(3)    The best interests of minor children in Australia (Primary Consideration 3); and

(4)    Expectations of the Australian community (Primary Consideration 4).

10    The Other Considerations include:

(1)    International non-refoulement obligations (Other Consideration 1);

(2)    Extent of impediments if removed (Other Consideration 2);

(3)    Impact on victims (Other Consideration 3); and

(4)    Links to the Australian community (Other Consideration 4), including:

(a)    strength, nature and duration of ties to Australia; and

(b)    impact on Australian business interests.

tRIBUNAL’s DECISION

11    The Tribunal found that the applicant failed to pass the character test, and therefore considered whether there was another reason why the mandatory visa cancellation should be revoked. The grounds advanced by the applicant before this Court pertain to complaints he has with the Tribunal's assessment of Primary Consideration 3.

12    The Tribunal commenced with identifying the aspects of Direction 90 it ought to consider when determining the Primary Consideration 3 at [106]-[107], and then identified the relevant children at [108]-[109] being:

    C1 and C2 - the children of Victim 1, the first being the applicant's "stepdaughter" and the second being the applicant’s biological child;

    C3, C4 and C5 - the biological children of Victim 2 and the applicant; and

    C6, C7 and C8 - a nephew and two nieces.

13    For ease of reference, I will refer to the applicant's stepdaughter and biological children as "the children” and will specify when referring to his nephew and nieces.

14    The Tribunal noted at [110]-[111] that the children all live in North Queensland with their mothers, and none of the children have been subject to parenting orders in favour of the applicant.

15    From [112]-[117], the Tribunal set out the contentions of the parties. The applicant's written evidence included that he speaks with the children on a weekly basis, that he wanted to be there for the children, that they are his "number one priority" and that he has a "strong relationship" with them. The evidence also stated that the applicant has a say in the upbringing of the children, including by putting in place rules for C1 and C2, and that he has a role in the day to day lives of C3, C4 and C5. The Tribunal noted that it is the Minister's contention that any weight to be afforded in favour of Primary Consideration 3 ought to be tempered by a number of factors, which the Tribunal then addressed.

16    At [118]-[124], the Tribunal detailed the applicant's evidence given under cross examination, including that, if the applicant's mandatory visa cancellation was revoked, he intended to relocate to south-east Queensland and did not intend to live with or in the vicinity of the children in North Queensland, stating that he considered he should "start afresh somewhere". The Tribunal noted that the applicant stated that there would be a co-parenting arrangement with the mother of C3, C4 and C5, and that she had expressed a desire that she move away from North Queensland.

17    At [125]-[139], the Tribunal outlined the evidence provided by the applicant's witnesses, six of whom gave oral evidence at the hearing. The Tribunal noted that the mother of C3, C4 and C5 expressed that she would stay in North Queensland "long term". The witnesses all expressed support for the applicant, generally stating that he was a good and dedicated father and that it would not be in the best interests of the children if he were to be removed from Australia.

18    The Tribunal made the following findings in relation to the evidence given by the applicant’s witnesses at [140]-[142]:

I need to make some comments about the quality and credibility of the written and oral witness evidence from Victim 2’s Sister, Joshua Hofman, Leon Baggow, Nadia Rengifo, Yvonne Druppers, Nico Wourterse, and Ivy Querubin. In my view, there was a high degree of unreality and unbelievability about the evidence from each of these witnesses as it relates to the best interests of the minor children, when compared to the objective, independent evidence before the Tribunal. First, with the exception of Victim 2’s Sister, none of these people appear to have witnessed interactions between the Applicant and C1, C2, C3, C4 and C5 for, at a minimum, four years (because the Applicant has been in prison/detention). In the case of Joshua Hofman, it is more than a decade. Second, it is very hard for me to reconcile notions of the Applicant being, a “good” father, a “terrific father”, a “very dedicated father”, a “wonderful father”, being a “father figure”, with the reality of his serial domestic violent offending against the mothers of these children. Third: there is no basis for claims that the Applicant is “[making] sure his children where well cared for and happy” and “creating a positive environment for his children”, when he has perpetrated domestic violence in the presence of the children and otherwise created substantial trauma for the victims and the children that have witnessed it. Four: I have already indicated that each of these witnesses for the Applicant either: (1) did not accept his guilt for the crimes for which he has been incarcerated; or (2) did not consider him to have previously been violent (or otherwise minimised his offending). Overall, I am unable to give the witness evidence in relation to the best interests of C1, C2, C3, C4 and C5 much weight.

Similarly, I am unable to give the witness evidence of Sheila Brim, Fiona Hofman, Samuel Hofman, and Takiddo Savage in relation to the best interests of C1, C2, C3, C4 and C5 much weight either, largely for the first, second and third reasons as set out above. Separately, I have already indicated that this witness evidence either glossed over, or failed to refer to, the Applicant’s offending.

I note Joshua Hofman’s and Fiona Hofman evidence in relation to C6, C7 and C8. Given that there has been no physical contact between the Applicant and C6 and C7 for more than a decade (C8 was born in 2012 and appears to have never met the Applicant) only limited non-physical (online and cards etc.), the notion that C6, C7 and C8 will “suffer great loss…if [the applicant] is deported” is unbelievable, especially as contact may continue by the same means which it has occurred over the last decade.

19    From [143]-[153], the Tribunal undertook a consideration of the Direction in relation to the evidence before it. At [143], the Tribunal accepted that the applicant loves his children, and they love him, but noted that their relationship has been marked with lengthy physical absences due to his periods in detention and prison, as well as the protection orders made against him. At [144], the Tribunal stated, "I do not accept that the applicant is likely to play a positive parenting role in any of the children in the future." The Tribunal advanced three reasons why it came to this conclusion, including:

(1)    Despite the applicant's submissions, the evidence of the mother of C3, C4 and C5 is that she intends to stay in North Queensland long term.

(2)    There was a disconnect between the applicant's written submissions and his oral evidence, including that despite the children being his "number one priority", he did not intend to live in North Queensland, that he did not intend to live with C1 and C2 who could visit him during holidays or he could visit them, that the mothers of the children fulfil the parental role in their lives and that he wants to "start afresh somewhere". The Tribunal stated that "the applicant's evidence paints a picture of indifference to the interests of [the children]", and that desiring a relationship with the children is quite separate from fulfilling a positive parental role. about which it does not appear he is serious.

(3)    The applicant had never formerly sought "Family Court orders", and only intends to do so in relation to C3, C4 and C5. The Tribunal noted it was "sceptical" of this "for reasons set out above” and considered it "objectively unlikely" that the "Family Court would grant such orders to the applicant given his long history of serious domestic violence offending, and the fact that the applicant exposed the children to his offending against [their mother]."

20    At [155], the Tribunal concluded:

…the Applicant does not, in substance, wish to play a (positive) parental role (with all that that entails) in the lives of C1, C2, C3, C4 and C5. Even if the Applicant was willing to do so, I find that he is unlikely to be able to play this role for the reasons set out above.

…

Having regard to the totality of the evidence and whatever cumulative strength can be found for that evidence upon application of the relevant sub-paragraphs in paragraph 8.3(4) of the Direction, I find that this Primary Consideration 3 weighs, at best, slightly but not determinatively, in favour of revoking the decision to mandatorily cancel this Applicant’s visa.

21    Ultimately, the Tribunal affirmed the delegate’s Decision: at [196].

CONSIDERATION

Ground One

22    The first ground advanced by the applicant is that the Tribunal failed to accord procedural fairness in making its finding at [140], extracted above, in relation to the weight of the evidence provided by witnesses in its consideration of Primary Consideration 3. The applicant contended that neither he nor the witnesses were given the opportunity to make submissions with respect to the credibility of their evidence, which resulted in a material jurisdictional error.

23    Procedural fairness is concerned with the Tribunal's processes, as opposed to the outcome of its decision. In SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [48] (Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ) the High Court, citing F Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry [1975] AC 295 at 369, considered that procedural fairness does not require the Tribunal to disclose its mental processes and or what it may be minded to decide, nor does it require the Tribunal to give a commentary on what it thinks about the evidence before it. Rather, the Tribunal is required to put critical adverse findings to the applicant if it is not "obviously… open on the known material": SZBEL at [38].

24    The applicant submitted that the Tribunal did not, but ought to have, raised its concerns with the evidence given by the witnesses, specifically as to:

    Whether any of the witnesses who gave oral evidence witnessed interactions between the applicant and his children;

    Whether any of the witnesses who gave oral evidence could comment upon the Tribunal's difficulty in reconciling its views of the applicant with the reality of his offending;

    Whether any of the witnesses who gave oral evidence did not accept the applicant's guilt, or that they minimised his offending, or that they did not consider him to be previously violent; and

    The basis of a claim made by one of the witnesses, Mr Wourterse, that the applicant was a person whose strong beliefs include "creating a positive environment for his children".

25    I am not of the view that the Tribunal considered any of the witnesses to be liars, nor that it did not accept the evidence of the witnesses. Rather, as is clear from [140] of the Tribunal's Decision, the Tribunal did not afford much weight to the evidence of the witnesses in relation to Primary Consideration 3. The attribution of weight to evidence is neither "unexpected" nor "out of the blue".

26    Even accepting that the applicant was self-represented, I do not consider that the Tribunal was obliged to put him on notice that it intended to weigh the evidence in a certain way. It is well accepted that the onus is on the applicant to put his "best case" forward when seeking revocation of a mandatory visa cancellation: EXT20 v Minister for Home Affairs (2022) 291 FCR 55 at [154] (Wigney J). It is not for the Tribunal to notify the applicant of any deficiencies in his or her case, nor expose its mental processes or provisional views before making a decision, except in circumstances where it is not obviously open on the known material: EXT20 at [141], [154]. It was clear that Primary Consideration 3 and the weight attributed to it was a significant issue in question. The reasons for the decision of the delegate, as well as the Minister's written submissions, cross-examination of the applicant and other witnesses and closing submissions at the hearing before the Tribunal made that pellucidly clear.

27    It follows that the Tribunal member was not required to advise the applicant as to how it intended to weigh the evidence provided by the witnesses.

28    The applicant also submitted that assertions made by the Tribunal member at the hearing regarding the "two-day rule" resulted in procedural unfairness. At the outset of the hearing, the Tribunal member told the applicant the following:

MEMBER: And so in relation to making, and configuring, your case today, I’ll leave it to you to run your case. It’s important that we provide you with procedural fairness and procedural fairness, in that sense, means allowing you the opportunity to present your case as you see fit. Now, in accordance with the two day rule, you should restrict your submissions to the matters that you’ve already covered in your Statement of Facts, Issues and Contentions and any of the further material that you’ve filed.

29    The Tribunal member made a further comment in relation to this in the afternoon of the hearing, stating:

MEMBER: Yes, okay. Because I’ll just say that if there was anything radical and outside of the terms of their statements, it would be appropriate, in my view, depending on the extent to which it’s outside the parameters, to stand the matter down and to enable the transcript to be produced and to then be served by Mr Hofman on the tribunal and on your client, Mr Hawker, so that any relevant new information that was material could be considered. That’s what I’ll do if there is anything outside the scope.

So, by way of background, Mr Hofman, as you’re aware the two-day rule provides that the Minister must be provided with anything that anyone seeks to rely on, but if there’s something relevant that comes out two days before the hearing, and if anything relevant were to come out of the witness evidence that was particularly important to the case, then what we would do is, to enable that evidence to be considered, we’d stand the matter down, wait a couple of days so that the Minister’s representative could see that material to consider it, and then we would bring the matter back and continue it.

That would only occur when there was something outside of the scope of their statements, and the purpose of doing that is to provide you with procedural fairness, because if the witnesses provide evidence that’s not included in their statements, that’s material and favourable to you, and we would want that to be considered as a part of the decision-making process.

30    The applicant submitted that this misled the applicant such that he believed that he could only make submissions on the material that was put before the Tribunal two days before the hearing, and that in effect he was not able to make submissions regarding the oral evidence provided by witnesses.

31    The Tribunal member appears to be referring to the rule in ss 500(6H) and (6J) of the Act, which state that the Tribunal must not have regard to any oral or documentary evidence that is provided in support of an applicant's case that was not put before the Minister at least two business days before the Tribunal hearing.

32    On a fair reading of the transcript of the Tribunal hearing, I do not consider that the applicant was misled by the Tribunal such that he believed that he was not allowed to advance submissions about oral evidence given at the hearing. The first comment purporting to relate to the “two-day rule” by the Tribunal member was made before opening submissions. It was directed to informing the applicant that he ought not stray from matters already raised in his written statement to the Tribunal.

33    Later in the day during witness examinations, the Tribunal member commented that if any "fresh" or "new" evidence arises, the hearing should be adjourned to enable compliance with the “two-day rule”. So much is evident from the Tribunal member stating that this would only occur if the evidence "was something outside the scope of [the witnesses] statements". At the end of the first day of hearing and before closing submissions were made, the Tribunal member told the applicant that it wanted to hear from him regarding the Primary and Other Considerations in Direction 90. No restriction was placed on the applicant at any point regarding commenting on the oral evidence by the witnesses.

34    Furthermore, as is clear from the transcript of the Tribunal hearing, the applicant led evidence from each the witnesses and made submissions about their evidence. This makes it clear that he was not misled as to the effect of the “two-day rule”, and as such there was no denial of procedural fairness. In this case, any misstatement of the rule by the Tribunal was immaterial.

35    Ground one is not made out. 

Ground Two

36    The second ground advanced by the applicant is that the Tribunal made a legally unreasonable finding in considering that the applicant did not wish to play a positive parental role in the lives of his children. The applicant submitted this was directly contradictory to the evidence given by the applicant that he "very much" anticipated playing a parental role in his children's lives, and that there was no evidence otherwise which supported the Tribunal's conclusion. The applicant submitted that the precursor to that finding appears to be scepticism on behalf of the Tribunal that the applicant would apply for “Family Law orders”. The applicant further submitted that the Tribunal's view that in any event it was objectively unlikely that a court would make any orders in favour of the applicant given his criminal offending was a legally unreasonable finding.

37    The test for unreasonableness is narrow in scope and arises where no reasonable person could have reached the same decision as that reached by the Tribunal: EHF17 v Minister for Immigration and Border Protection (2019) 272 FCR 409 at [145] (Derrington J). As confirmed by the Full Court in Tsvetnenko v United States of America (2019) 269 FCR 225 at [83]-[85] (Besanko, Banks-Smith and Colvin JJ):

Unreasonableness as a ground of review is concerned with whether an implied statutory standard as to the character of the decision to be made in the exercise of power has been satisfied. Unreasonableness may be demonstrated by showing that the result is unreasonable or by showing that the reasons do not provide an intelligible justification for the result (see the review of the authorities in Minister for Immigration & Border Protection v Haq [2019] FCAFC 7 at [72]–[95] (Colvin J)). 

However, unreasonableness is not demonstrated merely by an error in reasoning, even an error that may be characterised as grave. Where the claim of unreasonableness is based on alleged unreasonable reasoning it must be demonstrated that the reasons fail to provide an intelligible justification for the result.

The distinction is important because review for legal unreasonableness concerns the overall character of an administrative decision. Erroneous or illogical reasoning at a particular point in the decision‐making process may or may not lead to the conclusion that the decision as a whole fails to conform to the implied statutory standard of reasonableness.

38    One must show more than "emphatic disagreement" with a decision, and not every lapse in logic will give rise to jurisdictional error, therefore the Court must not quickly interfere where such an allegation arises: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [129]-[130] (Crennan and Bell JJ).

39    The Tribunal set out the written evidence provided by the applicant at [112]-[116], which includes that he regularly has telephone contact with the children, that they are his "number one priority" and that he has a good relationship with the children. The Tribunal contrasted this with the applicant's oral evidence under cross-examination at [118]-[124], which includes that he has not had physical contact with two of the children for over four years, and that if his visa cancellation is revoked, he proposes to move from North Queensland (where the children live) to south-east Queensland to "start afresh".  

40    In its explanation for why it considered that the applicant was not likely to play a positive parenting role in the lives of his children, the Tribunal noted at [144] that the applicant intended to move away from North Queensland, and despite his suggestion that there would be a co-parenting arrangement in place with the mother of C3, C4 and C5 who, he said, had indicated a desire to relocate away North Queensland, this was not consistent with the evidence she gave which was that she proposed to remain in North Queensland indefinitely.

41    The Tribunal then stated at [145] that it considered there to be a disconnect between the applicant's submissions and his oral evidence, including that despite the children being his "number one priority" and his wish to be in "proximity of the kids", he did not intend to live in North Queensland, notwithstanding that is where all the children live. When asked about C1 and C2 first the applicant said “well, if they want to follow me, they’re more than welcome to”, and then when asked about how contact might be maintained with them he proposed that that could occur by them visiting each other. As to C3, C4 and C5 the applicant stated that “they would be in the care of their mother”. The Tribunal concluded that the only evidence before it demonstrated that the mothers of the children fulfilled the parental roles in their lives. The Tribunal noted the applicant's evidence that he sought to "start afresh" and stated that "the applicant's evidence paints a picture of indifference to the interests of [the children]". The Tribunal accepted that while the applicant desires to have a relationship with his children, it is quite separate from fulfilling a positive parental role. Lastly, the Tribunal stated at [146] that the applicant has never sought “Family Court orders”, however intends to do so, in respect of which the Tribunal stated it was "sceptical of this claim for reasons set out above", and that it is "objectively unlikely that the Family Court would grant such orders to the applicant given his long history of serious domestic violence offending, and the fact that the applicant exposed the children to his offending…".

42    In its overall conclusion in relation to Primary Consideration 3 at [155], the Tribunal determined that the applicant does not actually wish to pay a substantive parental role in the children’s lives, which factors listed above contributed to that overall finding. The Tribunal’s finding that the applicant did not wish to play a substantive parental role in the lives of the children, contrary to his statement that he "very much" anticipated doing so, is not of itself unreasonable, and given the entirety of the evidence before the Tribunal, is unremarkable.

43    As to the finding regarding “Family Court orders”, the applicant submitted that it was unsurprising that the applicant had not sought “Family Court orders” in circumstances where he had been imprisoned and subsequently in immigration detention, which cannot reasonably lead to the conclusion that he would not seek “Family Court orders” should his visa cancellation be revoked. However, as submitted by the Minister, there was a significant period of time prior to the applicant’s detention during which he was separated from his children but did not seek “Family Court orders”. It is not unreasonable for the Tribunal to consider future possibilities of the applicant's actions based on inferences drawn from known facts: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 at [39] (Allsop CJ, Besanko and O’Callaghan JJ).

44    The applicant submitted that not seeking “Family Court orders” in the past is not a "pattern of behaviour" that the Tribunal member could rely upon to predict future behaviour, instead suggesting that it is one singular distinct act. I do not accept this submission. Attempting to characterise the applicant’s behaviour as one singular distinct act, rather than as a pattern of behaviour, does not assist the applicant in circumstances that persisted over a lengthy period. The fact that the applicant did not seek “Family Court orders” in the past, prior to his detention was an ongoing decision on his part over several years. He had every opportunity to do so, and instead decided against it. It was therefore open for the Tribunal to consider past behaviour, whether a decision made once over a long period of time, or many decisions made often over that period, as a predictor of future behaviour, and to do so was not unreasonable.

45    The applicant took issue with the Tribunal member making comment on the likelihood of his ability to obtain “Family Court orders”, submitting that there was no rationally probative evidence before the Tribunal as to the likelihood of the success or otherwise of the applicant obtaining orders in his favour. Furthermore, the applicant submitted that the Family Court often makes orders that manage risk and therefore the fact that the applicant has been convicted of crimes does not negate the possibility of obtaining orders in his favour.

46    Whilst that may be true, the finding made by the Tribunal as to the possible outcome of an application for parenting orders by the applicant is one that is not unreasonable in light of all of the evidence that was before it.

47    The impugned observation was not material to the Tribunal’s overall assessment of Primary Consideration 3. The observation was made in the Tribunal’s application of the factors set out in paragraph 8.3(4) of the Direction, specifically subparagraph (b) which required the Tribunal to consider “the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and includes any Court orders relating to parental access and care arrangements”. In its consideration of this factor, the Tribunal did not accept that the applicant is likely to play a positive parental role to the children in the future, listing three reasons why it came to that conclusion. The third of those reasons is where the Tribunal makes comment regarding the “Family Court orders”.

48    The finding itself is not unreasonable, nor does it “not provide an intelligible justification for the result”: Tsvetnenko at [83]. Even if that were not the case, the findings do not affect “the overall character” of the decision: Tsvetnenko at [85]. It was one of a number of bases upon which the Tribunal reached its conclusion, the most prominent of which was the applicant’s intention not to live in proximity to the children.

49    Accordingly ground two does not succeed.

conclusion 

50    It is for those reasons that the application is dismissed. There is no reason why costs ought not follow the event, therefore the applicant must pay the first respondent's costs as agreed or assessed by a Registrar of the court.

51    I thank pro-bono counsel and solicitors for appearing on behalf of the applicant. Their assistance to this Court is greatly appreciated.

Associate:

Dated:    18 January 2024