Federal Court of Australia

QHRY v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 33

ORDERS

THE COURT ORDERS THAT:

1.    The applicant is granted leave to rely on the amended originating application filed on 27 July 2022.

2.    The amended originating application filed on 27 July 2022 be dismissed.

3.    The applicant pay the first respondent’s costs of and incidental to the application, to be taxed if not agreed.

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

REASONS FOR JUDGMENT

THOMAS J:

1    This is an application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal), which affirmed a decision of a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (the Minister), not to grant the applicant a visa (QHRY and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 93). The applicant contended, in summary, that the Tribunal’s decision was affected by jurisdictional error because:

(a)    the Tribunal erred by failing to consider the best interests of minor children to the extent those interests differed;

(b)    the Tribunal “double-counted” against the applicant his past family violence conduct; and

(c)    the Tribunal’s decision was based on an assessment which was backward looking, rather than forward looking, with the result that the decision was punitive, rather than protective of the Australian community from harm.

2    For the reasons set out below, the application should be dismissed with costs.

BACKGROUND

3    The applicant is a citizen of Papua New Guinea (PNG), having been born there in 1989. He has lived in Australia since arriving in 2011.

4    In March 2015, the applicant applied for a Partner visa on the basis of his relationship with an Australian citizen (Ms AB) whom he married in 2014. The applicant and Ms AB have two children together, born in 2016 and 2020 (biological children). Ms AB also has two children from a previous relationship, born in 2008 and 2012 (stepchildren).

5    Between March 2017 and October 2018 the applicant was sentenced by the Magistrates Court of Queensland to imprisonment for the following offences:

(a)    contravention of domestic violence order: imprisonment for nine months;

(b)    contravention of domestic violence order (aggravated offence): imprisonment for two months concurrent;

(c)    contravention of domestic violence order (aggravated offence): imprisonment for three months to be suspended for nine months concurrent.

6    On 12 November 2020, the delegate of the Minister made a decision not to grant the applicant the visa (refusal decision) on the basis of s 501 of the Migration Act 1958 (Cth) (the Act). That section confers a discretionary power not to grant a person a visa if the person does not satisfy the “character test” in s 501(6) of the Act. Relevantly, a person does not pass the “character test” if they have been sentenced to a term of imprisonment of 12 months or more.

7    On 13 November 2020, the applicant sought review by the Tribunal of the refusal decision. On 4 February 2021, the Tribunal affirmed the delegate’s decision not to grant the visa.

8    On 10 March 2021, the applicant sought judicial review of the decision of the Tribunal. On 23 July 2021, this Court quashed the 4 February 2021 decision and remitted the matter for reconsideration by a differently constituted Tribunal (QHRY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 82).

9    On 28 January 2022, the Tribunal again affirmed the delegate’s decision. On 15 March 2022, the applicant filed an originating application for review of the decision of the Tribunal.

LEAVE TO AMEND

10    On 27 July 2022, the applicant filed a proposed amended draft application for review of the Tribunal’s decision. Rule 8.21(1)(g) of the Federal Court Rules 2011 (Cth) allows a party to apply to the Court to amend an originating application in order to add or substitute a new claim for relief, or a new foundation in law for a claim of relief, that arises out of the same facts, or substantially the same facts, as those already pleaded to support an existing claim. The power of the Court to grant or refuse leave to amend must be exercised in a way that accords with the Court’s overarching purpose to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible: Australian Securities and Investments Commission v Cassimatis (No 6) (2016) 113 ACSR 466; [2016] FCA 622 at [8] (per Edelman J).

11    While the relief sought is broadly similar, the proposed amendments comprised comprehensive changes to the grounds on which the Tribunal’s decision is said to be infected with jurisdictional error. I am satisfied that the amendments are based on the same facts as the original application. I also consider it to be relevant that the amended draft application was filed after the appointment in this matter of a pro bono representative for the applicant. The amended draft application expressed the grounds for relief in a manner which facilitates the just resolution of this dispute as efficiently as possible. At the hearing, counsel for the Minister indicated no opposition to the grant of leave for the applicant to rely on the proposed amended draft application. The Minister had addressed the substance of the amended draft application in submissions. I am otherwise satisfied that the proposed amended application would facilitate the just resolution of this matter. For these reasons, the applicant is granted leave to file and rely on the proposed amended application (the application).

MINISTERIAL DIRECTION 90

12    There was no dispute between the parties that the applicant’s history of offending meant that he did not pass the character test in s 501(6) of the Act. Rather, the issue before the Court was in relation to the Tribunal’s exercise of the residual discretion in s 501(1) to grant or refuse the visa, given that failure. That exercise entailed the application of Ministerial Direction no. 90 (Direction 90).

13    Under s 499(1) of the Act, the Minister has the power to “give written directions to a person or body having functions or powers under this Act if the directions are about the performance of those functions or the exercise of those powers”. Section 499(2A) provided that decision-makers must comply with a direction that is in effect. At the time of the refusal decision and the Tribunal’s decision of 4 February 2021, the direction in effect under s 499, in relation to the exercise of the powers in s 501, was Ministerial Direction no. 79 (Direction 79). By the time of the Tribunal’s decision of 28 January 2022, Direction 79 had been replaced by Direction 90, with effect from 15 April 2021.

14    Direction 90 set out mandatory considerations that decision-makers “must take into account … where relevant to the decision”. Paragraph 5.1(4) of Direction 90 provided that its purpose was to “guide decision-makers in performing functions or exercising powers under section 501 … of the Act”.

15    Paragraph 5.2 of Direction 90 set out “Principles” to “provide the framework within which decision-makers should approach their task”. These principles included the following:

(1)    Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

(2)    Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

…

16    One relevant difference between Direction 79 and Direction 90 was the insertion of considerations relating to domestic violence conduct. In the part of the Direction setting out “Principles”, a new para 5.2(5) provided that:

Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.

17    Direction 90 set out “Primary considerations” and “Other considerations” for decision-makers. A new para 8.2 was added to the “Primary considerations” in Direction 90 in relation to family violence. The headings for both “Primary considerations” and “Other considerations” are as follows:

8. Primary considerations

8.1.    Protection of the Australian community

8.1.1    The nature and seriousness of the conduct

8.1.2    The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct

8.2.    Family violence committed by the non-citizen

8.3.    Best interests of minor children in Australia affected by the decision

8.4.    Expectations of the Australian Community

9. Other considerations

9.1    International non-refoulement obligations

9.2     Extent of impediments if removed

9.3    Impact on victims

9.4    Links to the Australian community

…

9.4.2    Impact on Australian business interests

(Bold omitted and errors in original)

18    Paragraph 8.1 of Direction 90, “Protection of the Australian community”, required decision-makers to take into account the nature and seriousness of the conduct and the risk to the Australian community should the person reoffend as follows:

8.1.1    The nature and seriousness of the conduct

(1)    In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to the following:

a)    without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:

i)    violent and/or sexual crimes;

ii)    crimes of a violent nature against women or children, regardless of the sentence imposed;

iii)    acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed.

…

8.1.2    The risk to the Australian Community should the non-citizen commit further offences or engage in other serious conduct

…

(2)    In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:

a)    the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and

b)    the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:

i.    information and evidence on the risk of the non­citizen re-offending; and

ii.    evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).

c)    where consideration is being given to whether to refuse to grant a visa to the non-citizen — whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.

(errors in original)

19    Paragraph 8.2 of Direction 90 set out the following considerations in relation to family violence:

8.2    Family violence committed by the non-citizen

(1)    The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen (see paragraph (3) below).

(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 s 501 or section 501CA has been afforded procedural fairness.

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

(errors in original)

20    Paragraph 8.3 of Direction 90 set out the following considerations in relation to the best interests of minor children:

8.3    Best interests of minor children in Australia affected by the decision

(1)    Decision-makers must make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is, or is not, in the best interests of a child affected by the decision.

(2)    This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to refuse or cancel the visa, or to not revoke the mandatory cancellation of the visa, is expected to be made.

(3)    If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.

(4)    In considering the best interests of the child, the following factors must be considered where relevant:

a)    the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);

b)    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 including any Court orders relating to parental access and care arrangements;

c)    the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;

d)    the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;

e)    whether there are other persons who already fulfil a parental role in relation to the child;

f)    any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);

g)    evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;

h)    evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.

21    Paragraph 8.4 of Direction 90 set out the following considerations in relation to the expectations of the Australian community:

8.4    Expectations of the Australian Community

(1)    The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.

(2)    In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:

a)    acts of family violence; or

…

(3)    The above expectations of the Australian community apply regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.

(4)    This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case.

THE TRIBUNAL’S DECISION

22    The Tribunal set out the procedural history ([4]-[7]) and the legal framework for the decision, including Direction 90 ([8]-[11]). It summarised the evidence before it of the applicant’s offending and conduct. In addition to trespass and drink-driving offences, this included multiple incidents of physical aggression between the applicant and Ms AB, often escalating from heated arguments while both were intoxicated, and in breach of various domestic violence orders ([22]-[23]).

23    The Tribunal set out the applicant’s written and oral evidence ([24]-[40]); Ms AB’s written and oral evidence ([41]-[52]); testimony from the applicant’s friends ([53]-[56]; and expert evidence from two psychologists ([57]-[60]).

24    The Tribunal recorded its findings and reasons for affirming the refusal decision in a structure replicating that of Direction 90.

25    Under the heading “Protection of the Australian Community”, the Tribunal noted that it did not accept the applicant’s explanation for the trespass, and that repeat drink-driving offences reflected a reckless indifference to others ([77]-[78]). The Tribunal found as follows:

79.    The Applicant was found guilty of three charges of contravening a domestic violence order in 2015, with the court deciding to impose a six-month term of probation, but not to record convictions. Unfortunately, the Applicant was not dissuaded by the court’s non-custodial penalties and his offending continued. The court subsequently imposed custodial sentences, which are the most serious sanction available.

80.    The Tribunal rejects the Applicant’s claims that he ‘has never been convicted of a violent offence, only of contravention of a domestic violence order’, and that the nature of the interactions between him and Ms AB ‘defy the standard definition of family violence’. The preponderance of the Applicant’s offending and other objectionable conduct relates to repeated contraventions of family violence orders to protect Ms AB, drink-driving, and breaching conditional liberty. Ms AB said he was verbally abusive towards her and the Applicant conceded he was verbally abusive and threw and broke things during arguments between them. He also pushed Ms AB, and his aggressive and abusive conduct was personally observed by police. This conduct collectively constitutes family violence.

81.    The Applicant has offended frequently since December 2012, receiving increasingly severe punishments including several terms of imprisonment. This reflects an upward trend of serious offences: cl 8.1.1(1)(d). The cumulative effect of the Applicant’s repeat offending has imposed costs on the community and reflects a persistent lack of respect for Australia’s law-enforcement framework: cl 8.1.1(1)(e).

82.    The Applicant’s overall offending is very serious.

(italics in original)

26    The Tribunal then summarised its findings in relation to the risk to the Australian community from further offences or serious conduct by the applicant. After reciting legal authority in relation to the assessment of such risk, the Tribunal found as follows (at [90]):

For the reasons discussed earlier, the Tribunal does not accept the Applicant’s past claims to the Department, the two psychologists who assessed him, and to his lawyer, that he was abstinent from alcohol variously since early 2017 or May 2018, had learned his lesson, and turned the corner towards a law-abiding life. The Tribunal instead accepts the accuracy of the police reports dated between 4 November 2018 and 9 November 2019, which refer to the Applicant being arrested while sleeping in the driver’s seat of his car and registering a reading of 0.204 grams of alcohol in 210 litres of breath, arguing with Ms AB in a public place, driving while disqualified, and drinking alcohol with Ms AB on 9 November 2019. In her most recent statement, Ms AB conceded she has consumed alcohol on several occasions since the Applicant was taken into detention. It is also noteworthy that the Applicant has been in immigration detention for about half the time of his claimed abstinence; and in the year prior to that was subject to a visa refusal process. These are entirely different contextual circumstances to those during which his alcohol abuse and offending occurred.

27    At [91]-[94], the Tribunal noted:

(a)    the psychologist evidence that the applicant experiences impaired judgment when drinking;

(b)    the favourable risk assessments prepared by medical officers in immigration detention; and

(c)    the applicant’s agreement that he remains subject to a domestic violence order until July 2023.

28    At [95]-[98], the Tribunal noted the applicant’s evidence that he had not undertaken the therapy recommend by psychologists, but had received counselling and successfully completed six months’ probation. The Tribunal reiterated its rejection of the applicant’s claimed abstinence from alcohol, finding that he had “consistently relapsed … particularly when stressed, depressed, and living with Ms AB” and that “[t]he persistent nature of his alcohol abuse, notwithstanding comparatively short periods of abstinence in custodial settings, does not inspire confidence that he has overcome his alcohol problem” ([96]).

29    Under the subheading “Tribunal findings relating to recidivism risk”, the Tribunal stated (at [99]) that:

The potential harm from a repeat of the Applicant’s offending is very serious, with consequences including serious physical or psychological injury or death. This is regardless of whether there is a repeat of family violence or he again drives while intoxicated. The community’s tolerance for such offending by non-citizens is very low.

30    After rejecting the applicant’s claim that his drinking and domestic violence were triggered by the death of his father, on the basis that there had been incidents pre-dating that death (100]-[102]), the Tribunal found (at [103]) that:

The Applicant’s failure to respond to past rehabilitative opportunities raises serious concerns about his capacity to change the course of his life if released. His claimed rehabilitation since entering detention is very recent and untested; particularly in the context of a resumed relationship with Ms AB. The Tribunal holds significant concerns about the persistently dysfunctional and abusive relationship between the Applicant and Ms AB, which was characterised by persistent alcohol abuse and friction. The Applicant’s evidence, and that of Ms AB at the present hearing, does not inspire confidence they have ‘rebuilt a functional and stable relationship’. This is particularly so, given [the psychologist’s] evidence that Ms AB was still bringing ‘dysfunctional ideas’ to the relationship, and absence of any corroboration for her claimed counselling and treatment. Moreover, [the psychologist] stated that when one person blames themselves for the other person’s domestic violence that can adversely ‘influence the dynamic of the relationship.’

(italics in original; footnote omitted)

31    The Tribunal rejected reports prepared by detention centre medical officers as evidence of recidivism risk in the community on the basis that those reports focus on the risk the applicant poses to himself and others in the detention facility ([104]). The Tribunal gave little weight to the expert evidence of the two psychologists, on the basis that it was reliant on self-reporting by the applicant, that the psychologists were unaware of past unsuccessful rehabilitation and that their criteria for assessment were more limited than the scope of the Tribunal’s evaluation ([105]-[106]). At [107]-[109], the Tribunal found that it was not confident that the applicant would not abuse alcohol and remain law-abiding, nor that the relationship between him and Ms AB would improve. It concluded (at [110]):

The Tribunal is unconvinced that the protective factors invoked by the Applicant will be any more effective in the future than in the past. Despite stable accommodation, employment, the interests of his children, support from family and friends, a desire to make a permanent life for himself in Australia and rehabilitative opportunities, the Applicant engaged in persistent alcohol abuse and offending. He constitutes at least a moderate risk of recidivism. Given the very serious nature of the Applicant’s past offending and the harm such conduct can cause, coupled with a moderate and unacceptable recidivism risk, this primary consideration weighs very substantially against exercising the discretion in his favour.

32    The Tribunal then turned to the considerations relating to family violence in para 8.2 of Direction 90. After noting a dispute between the parties as to whether the applicant’s conduct amounted to family violence, the Tribunal found as follows (at [114]):

The Tribunal rejects the Applicant’s claim that his convictions are not for violent offences and adopts the reasoning about family violence in Healey and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 4309. Irrespective of whether Ms AB may have taunted or goaded the Applicant during arguments, or embellished her account of what occurred to police, or refused to cooperate after police attendances, or that the Applicant was ‘never charged with any physical crimes’, he had other choices, such as walking away. Instead, he threw glasses or bottles at a wall, television and sliding door, verbally abused Ms AB, and was observed by police as being ‘quick to anger, verbally abusing and swearing at [Ms AB]...[and]...walked towards [Ms AB] raising his hand in a clenched fist and swinging it in an aggressive motion towards her face’. Ms AB was also observed by police to have an injury that was ‘fresh and bleeding,’ and was ‘very upset and traumatised’. The Applicant has unpersuasively explained red marks on Ms AB’s neck as resulting from when he pushed her away, and a scratch on her face as accidentally caused while trying to recover his credit card. In relation to the latter, the Tribunal prefers the police report referring to their viewing of CCTV footage, which showed the Applicant standing over Ms AB and poking her face. The Tribunal does not accept Ms AB’s evidence that this incident looked ‘more extreme’ than it was.

(italics in original)

33    The Tribunal found that it preferred police incident reports to the evidence of either the applicant or Ms AB because the applicant and Ms AB frequently claimed to be unable to recall details due to their intoxication at the time of the incident ([115]-[116]). Noting the guidance of a decision of this Court (Kenny J’s observations in CVN17 v Minister for Immigration and Border Protection (2019) 163 ALD 101; [2019] FCA 101 at [98]-[100]), the Tribunal stated that it had only given weight to police reports of incidents that resulted in a conviction, or where the Applicant conceded his involvement or likely involvement, or where he had accepted the accuracy of the police record ([118]). The Tribunal then concluded its findings in relation to family violence as follows (at [119]):     

The Tribunal has no reason to doubt the contemporaneous police records about what they personally observed during these incidents. The Tribunal is satisfied that the Applicant has committed repeated acts of family violence against Ms AB. This primary consideration weighs substantially against his application.

34    Turning to its assessment of the best interests of children in relation to para 8.3 of Direction 90, the Tribunal found as follows:

120.    The Applicant has a five-year-old and one-year-old biological child with Ms AB. He is also stepfather to Ms AB’s two children from a previous relationship who are nine and 13 years of age. Custody of the two older children is shared by Ms AB and her former partner. In that respect, the interests of the Applicant’s younger biological children can be distinguished from those of his stepchildren.

…

122.    The evidence discloses that, despite being in detention, the Applicant has continued to play a prominent parental role in his children’s lives. The Tribunal has no doubt his relationship with them is close and loving. His absence from their lives while previously imprisoned, or subject to [Domestic Violence Orders] affecting contact with his family, or while in immigration detention, has imposed an increased burden on Ms AB. It is acknowledged, however, that care of the two older children is shared with their biological father. Ms AB’s capacity to continue caring for the children is also affected by, to some degree, a mental health condition she suffers ...

123.    The Tribunal accepts that if the Applicant is repatriated to PNG, the adverse emotional and financial impact on Ms AB and the children will be exacerbated because she does not intend to leave Australia. That is a personal but understandably difficult decision, which she says is founded on greater opportunities for herself and the children in Australia. It is also claimed that the biological father of the two older children is unlikely to accept them leaving Australia.

124.    Although contact between the Applicant and the children could continue by video calls as it currently does, and perhaps visits to PNG, that would be a poor substitute for the close contact the family would enjoy if he remained here. The children would be adversely affected by losing that close contact with the Applicant and his emotional and perhaps financial support. The latter depends on the Applicant’s ability to find work.

125.    The Tribunal finds that visa refusal is not in the children’s best interests and this primary consideration weighs substantially in favour of setting aside the reviewable decision.

(footnotes omitted)

35    The Tribunal then set out its finding in relation to para 8.4 of Direction 90 – “Expectations of the Australian Community”. The Tribunal noted (at [127]) that:

Clause 8.4(2) of the Direction states that visa cancellation, refusal or non-revocation may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. Serious character concerns are raised because of conduct in Australia or elsewhere, of the following kind:

a.    acts of family violence;

…

(italics in original)

36    After noting at [128]-[130] case law to the effect that this part of Direction 90 required the Tribunal to focus on what the government has deemed the community’s expectations to be, and that these would in most cases favour cancellation, the Tribunal found that:

131.    The Applicant’s offending reflects serious breaches of the privilege afforded to non-citizens to enter and remain in Australia. He has not been law-abiding and has not respected important institutions like the courts. His persistent criminal conduct raises serious character concerns within the meaning of cl 8.4(2)(a) of the Direction and he should expect to forfeit the privilege of staying in Australia.

132.    The Applicant has lived in Australia for approximately a decade. Notwithstanding that he may be afforded a higher level of tolerance because of the time he has spent here, and other positive features of his case, this primary consideration nevertheless weighs substantially against exercising the discretion in his favour.

37    The Tribunal then turned to the “Other Considerations” in Part 9 of Direction 90. The Tribunal found that consideration of links to the Australian community weighed substantially in the applicant’s favour ([147]-[150]; found that consideration of the impediments faced by the applicant if removed to PNG weighed moderately in his favour ([134]-[139]); and gave neutral weight to international non-refoulement obligations ([133]) and to the impact on victims ([140]-[146]).

38    Under the heading “Conclusion”, the Tribunal stated:

151.    The Applicant does not pass the character test. In considering whether the discretion under s 501(1) of the Act to refuse the visa should be exercised, the Tribunal has applied the Direction [90] to the specific circumstances of his case. The Tribunal sees no reason to depart from the guidance in the Direction that greater weight ‘should generally be given’ to the primary considerations than other considerations.

152.    The Applicant’s overall offending is very serious and is characterised by repeat family violence, drink-driving offences, and breaches of conditional liberty. The Tribunal has little confidence in his latest assurances that rehabilitative progress during the last year in detention has mitigated his recidivism risk to an acceptable level, particularly when considered in the context of a resumed relationship with Ms AB.

153.    The Applicant’s persistent criminal conduct reflects serious breaches of the privilege afforded to non-citizens to enter and remain in Australia. He has not been law-abiding nor respected important institutions like the courts. His persistent criminal conduct raises serious character concerns within the meaning of cl 8.4(2)(a) of the Direction and he should expect to forfeit the privilege of staying in Australia.

154.    The Tribunal accepts the Applicant’s biological children and stepchildren would be adversely affected by losing close contact with the Applicant and his emotional and perhaps financial support. Visa refusal is not in their best interests.

155.    The Tribunal accepts that after ten years living in Australia, the Applicant is likely to experience a period of adaptation in resuming his life in PNG. He has close ties to Ms AB, their children, and other friends and past employers. If removed, he would be unlikely to be permitted to return for the foreseeable future.

156.    Having weighed all relevant considerations individually and cumulatively, the Tribunal finds the discretion under s 501(1) of the Act should be exercised to refuse to grant the Applicant’s visa. That is because the primary considerations ‘Protection of the Australian community,’ ‘Family violence committed by the non-citizen’, and ‘Expectations of the Australian community,’ considerably outweigh the combined weight to be given to the primary consideration ‘Best interests of minor children in Australia’ and the other countervailing considerations.

(italics in original)

39    Accordingly, the Tribunal affirmed the refusal decision.

GROUNDS OF REVIEW

40    The grounds of review were particularised as follows:

1.    In purporting to discharge the statutory task required by the Act – in particular, s 501(2), read with s 499(2A) and Direction 90 issued under s 499(1) - the Administrative Appeals Tribunal (Tribunal) erred jurisdictionally by:

a.    failing to consider individually the bests interests of minor children to the extent that those interests may have differed, as required by paragraph 8.3(3) of Direction 90; and/or

b.    failing 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 …’ as required by paragraph 8.3(4)(b) of Direction 90.

Particulars

(i)    Paragraph 8.3(3) of Direction 90 provides that ‘the best interests of each child should be given individual consideration to the extent that their best interests may differ’.

(ii)    Paragraph 8.3(4) of Direction 90 provides that certain factors ‘must be considered where relevant’, one of which - in sub-paragraph (b) - is ‘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 …’.

(iii)    In the present case, the Tribunal did not consider - individually for each child or at all - the extent to which the Applicant was likely to play a positive parental role in the future for his two children and two step-children, in particular, the Tribunal did not consider the way in which each child’s bests interests differed by degree in this regard because of their differing ages (from 1 year old to 13 years old).

2.    In purporting to discharge the statutory task required by the Act - in particular, s 501(2), read with s 499(2A) and Direction 90 issued under s 499(1) - the Tribunal erred jurisdictionally:

a.    by treating paragraph 8.2 of Direction 90 as divorced from considerations of protection of the community and/or expectations of the Australian community; or

b.    by giving weight to family violence committed by the Applicant under paragraph 8.2 of Direction 90 where weight was also given to this consideration in an identical way under paragraph 8.1 or 8.4 of Direction 90;

c.    in the alternative to ground 2(a), by purporting to comply with paragraph 8.2 of Direction 90 in circumstances where that paragraph is invalid insofar as it permits family violence committed by a non-citizen to weigh against a non-citizen divorced from considerations of protection of the Australian community or expectations of the Australian community; or

d.    in the alternative to ground 2(b), by purporting to comply with paragraph 8.2 of Direction 90 in circumstances where that paragraph is invalid insofar as it permits giving weight to family violence committed by the non-citizen where weight is also given to this consideration in an identical way under another paragraph of Direction 90.

Particulars to grounds 2(a) and (c)

(i)    Properly construed, paragraph 8.2 of Direction 90 is concerned with protection of the Australian community from family violence and/or the expectations of the Australian community with respect to family violence.

(ii)    The Tribunal misunderstood paragraph 8.2 of Direction 90 as allowing weight to be given to family violence committed by the Applicant divorced from considerations of protection of the community and/or expectations of the Australian community.

(iii)    In the alternative to (i) and (ii), insofar as paragraph 8.2 of Direction 90 purported to permit persons or bodies exercising the power under s 501(2) of the Act to give weight to family violence committed by the Applicant independently of considerations of protection of the Australian community or expectations of the Australian community, paragraph 8.2 of Direction 90 is not a valid exercise of the power in s 499(1) of the Act.

Particulars to grounds 2(b) and (d)

(iv)    Properly construed, paragraph 8.2 of Direction 90 does not permit a decision-maker to give weight to family violence committed by the non-citizen where weight is also given to this consideration in an identical way under another paragraph of Direction 90.

(v)    The Tribunal misunderstood paragraph 8.2 of Direction 90 as permitting the Tribunal to give weight to family violence committed by the Applicant where weight was also given to this consideration in an identical way under paragraph or 8.4 of Direction 90.

(vi)    In the alternative to (iv) and (v), insofar as paragraph 8.2 of Direction 90 purports to permit persons or bodies exercising the power under s 501(2) of the Act to give weight to family violence by the non-citizen where weight is also given to this consideration in an identical way under another paragraph of Direction 90, paragraph 8.2 of Direction 90 is not a valid exercise of the power in s 499(1) of the Act.

(bold in original)

APPLICANT’S SUBMISSIONS

Ground 1

41    Ground 1 related to the factors that “must be considered where relevant” under para 8.3(4) of Direction 90, including “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”. The applicant submitted that, in this context, “relevancy” was objective: KXXH v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1229 at [9] (per Colvin J); arose independently of how the applicant presented his case: Uelese v Minister for Immigration and Border Protection (2015) 256 CLR 203; [2015] HCA 15 (Uelese) at [61]-[64] (per French CJ, Kiefel J (as her Honour then was), Bell and Keane JJ); and set a low threshold: Paerau v Minister for Immigration and Border Protection (2014) 219 FCR 504; [2014] FCAFC 28 at [109] (per Perry J). The applicant submitted that the Tribunal failed to consider the different interests of the biological children individually by failing to consider the length of time until they turn 18, relative to the applicant’s stepchildren. The applicant contended that this comprised a failure to take account of a mandatory consideration in Direction 90 because para 8.3(3) required the Tribunal to consider differences of degree where factors affect particular children more than others. The applicant submitted that, given the relative young age of his biological children and, in particular, the younger one who was aged one at the time of the Tribunal’s decision, it could realistically have resulted in a different decision had the Tribunal considered the extent of time before his biological children reached majority, because it “could reasonably have expected to add considerable weight” in the applicant’s favour: Guttridge v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 229 (per Colvin J). In relation to the materiality of the error, the applicant made the following contentions drawn from authorities:

(a)    Use of the term “realistic” in relation to materiality was “to distinguish the assessment of the possibility of a different outcome from one where the possibility is fanciful or improbable, no more than that”: Chamoun v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 276 FCR 75; [2020] FCAFC 66 at [66] (per Mortimer J (as her Honour then was) and Bromwich J).

(b)    The relevant test for materiality did not require an assessment of the likelihood of a different result, but rather whether an error free analysis “could” have led to a different result: Minister for Immigration and Border Protection v CPA16 (2019) 268 FCR 379; [2019] FCAFC 40 at [33] (per Yates, Murphy and Moshinsky JJ).

(c)    Although a materiality analysis was counterfactual: MZAPC v Minister for Immigration and Border Protection (2017) 273 CLR 506; [2021] HCA 17 at [38] (per Kiefel CJ, Gageler J (as his Honour then was), Keane and Gleeson JJ), it was distinguished from “a hypothetical merits review”: Nguyen v Minister for Home Affairs (2020) 170 ALD 38; [2020] FCA 127 at [90] (per Banks-Smith J).

(d)    Where a decision relied on intermingled findings or matters coming to an ultimate conclusion and there was no proper basis for one of the findings, jurisdictional error may result: CGA15 v Minister for Home Affairs (2019) 268 FCR 362; [2019] FCAFC 46 at [61] (per Murphy, Mortimer J (as her Honour then was) and O’Callaghan J).

Ground 2

42    In relation to Ground 2, the applicant contended that the purpose of s 501 is “non-punitive in nature and, instead, has as its heart, the protection of the Australian community from the risk of serious criminal activity”: Minister for Immigration and Citizenship v Makasa [2012] FCAFC 166 at [61] (per Jacobson, Siopis and Murphy JJ). The applicant submitted that, in that connection, consideration of family violence must be relatable to consideration of the protection and expectations of the Australian community.

43    The applicant submitted that family violence must be considered as part of evaluating the protection of the Australian community because para 8.2 of Direction 90 contains no paragraph, such as para 8.4(3), which excludes consideration of future risk of harm. The applicant contended that consideration of family violence as part of the consideration of the protection of the Australian community, must be “fundamentally forward, rather than backward, looking”, relying on NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1; [2014] FCAFC 38 (NBMZ) at [192] (per Buchanan J). The applicant contended that this could be inferred from the considerations directing attention to “further” conduct in para 8.1.2.(1)(a)-(d) of Direction 90.

44    In the alternative, the applicant contended that consideration of family violence must relate to consideration of the expectations of the Australian community. To support that proposition, the applicant pointed to the use of the word “privilege” in para 8.2(1), reflecting the language used in the “Principles” part of Direction 90. The applicant cited two cases as part of what he submitted is a well-established line of authority that the language of “privilege” and “entitlement” relate to expectations of the Australian community: Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1; [2016] FCAFC 11 (Stretton) at [26] (per Allsop CJ); and Folau v Minister for Immigration and Border Protection (2017) 256 FCR 455; [2017] FCAFC 214 (Folau) at [49] (per Collier J).

45    The applicant argued that, if the decision to deny a person a visa was based wholly on a person’s past infractions, but does not speak to the prospect of future harm from which the Australian community might expect to be protected, the decision to deny the applicant a visa would be punitive in nature and therefore unlawful. It would be unlawful, the applicant submitted, because the imposition of punishment for past criminal conduct is the domain of the judiciary and not the executive: Alexander v Minister for Home Affairs (2022) 401 ALR 438; [2022] HCA 19 (per Kiefel CJ, Gageler J (as his Honour then was), Keane, Gordon, Edelman, Steward and Gleeson JJ) and Djalic v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 292; [2004] FCAFC 151 at [66] (per Tamberlin, Sackville and Stone JJ).

46    The applicant pointed out that, when considering the protection of the Australian community, the Tribunal noted conduct by the applicant that “collectively constitutes family violence” ([80]), which fed into the Tribunal’s finding that “the applicant’s offending is very serious” ([82]). The applicant contended that this part of the Tribunal’s reasoning was consistent with para 8.1.1(1)(a)(iii) of Direction 90 and was concerned with the prospect of further conduct “particularly in the context of a resumed relationship with Ms AB” ([103]) amounting to “at least…[a] moderate risk of recidivism” ([110]). In relation to the expectations of the Australian community, the applicant observed that the Tribunal recited that by para 8.4(2)(a) of Direction 90, acts of family violence raised serious character concerns, such that visa refusal may be “appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa” ([127]).

47    However when considering Part 8.2 of Direction 90, the applicant submitted, the Tribunal’s reasoning dealing with family violence was completely “divorced” from the purpose of determining whether a visa cancellation was in the interests of the protection and expectations of the Australian community. The applicant submitted that the Tribunal’s assessment in relation to Part 8.2 of Direction 90 was purely backward looking: having found that the applicant had committed acts of family violence in the past, the Tribunal weighed that against the applicant per se ([119]). The applicant submitted that it was erroneous for the Tribunal to do so, devoid of any reasoning linking past conduct to the future protection and expectations of the Australian community.

48    The applicant further submitted that the Tribunal erred by weighing family violence conduct against him in its consideration of para 8.2 of Direction 90, having separately also weighed it against him in the respective parts of its reasons dealing with the protection and expectations of the Australian community pursuant to paras 8.1 and 8.4 of Direction 90. The applicant contended that double-counting in this way was legally unreasonable, illogical or irrational. The applicant sought to rely on XXBN v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 74 (XXBN) at [53] (per Bromberg, Stewart and Goodman JJ) as authority for the proposition that duplication through double-counting would be a jurisdictional error. In XXBN (in the context of the same point having been argued in the reverse, in relation to double-counting of factors in favour of an applicant), the Full Court found that:

The appellant’s submission that the Tribunal was required to give a double weighting and that he was entitled thereby to another “score on the board” is contrary to the authorities cited by the primary judge … We agree that “where a matter is relevant to two or more mandatory relevant considerations, a decision-maker is not usually required to take the matter into account repetitiously”: Bale v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 646 at [26] per Perram J, adopted in WQRJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 736 at [78] per Derrington J.

(italics in original)

49    The applicant submitted that, although the considerations in Direction 90 overlap, to consider a matter in the course of decision-making is different to giving the same matter weight multiple times as part of an evaluative balancing exercise. The applicant pointed to a number of unrelated Tribunal decisions in which the Member had expressly avoided giving double weight to family violence considerations. Those decisions are, of course, not binding on this Court.

50    In the alternative, the applicant contended that, if Direction 90 required the Tribunal to double-count family violence, the Direction is ultra vires the power in s 499 because it would require the Tribunal “to take into account a matter which [s 501(1) itself], properly construed, did not require them to take into account”, citing Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424; [2014] FCA 673 (Tanielu) at [142] (per Mortimer J (as her Honour then was)). The applicant submitted that the broad nature of the power in s 499 to make directions to specify how a discretion should be exercised, the factors to be taken into account and their relative weight meant that s 499 was limited by the inference that Parliament intended that it be exercised reasonably, in the sense found in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 (per French CJ, Hayne J, Kiefel J (as her Honour then was), Bell J and Gageler J (as his Honour then was)). The applicant further submitted that a similar unreasonableness limitation on directions made under an enactment was found in Cotterill v Romanes (2021) 68 VR 433; [2021] VSC 498 (per Niall JA), which concerned public health directions relating to the COVID-19 pandemic made under the Public Health and Wellbeing Act 2008 (Vic); and Minister for Primary Industries and Energy v Austral Fisheries Pty Ltd (1993) 40 FCR 381 (Austral Fisheries) at 384 (per Lockhart J), which found that a formula provided in delegated legislation for calculating the allocation of fishing quotas under the Fisheries Act 1992 (Cth) resulted in such inequitable and capricious results, and was thereby so “artificial”, that it was legally unreasonable .

51    The applicant contended that a requirement to double-count family violence would be irrational, illogical or otherwise unreasonable because it would be inconsistent with the embargo in s 499(2) that “[s]ubsection (1) does not empower the Minister to give directions that would be inconsistent with this Act or the regulations”. The applicant contended that requiring double-counting of a consideration took Direction 90 beyond power in a manner analogous to the “artificiality” found in Austral Fisheries. The applicant pointed to a number of cases where it was found that a direction had unlawfully narrowed or fettered the discretion of the decision-maker and submitted that this was such a case: Williams v Minister for Immigration and Border Protection (2014) 226 FCR 112; [2014] FCA 674 at [41] (per Mortimer J (as her Honour then was)) and Aksu v Minister for Immigration and Multicultural Affairs (2001) 65 ALD 667; [2001] FCA 514 (Aksu) at [10] (per Dowsett J).

52    The applicant further contended that a direction which created “virtually a prescription” for visa refusal has been found to unlawfully distort the discretionary exercise envisaged by s 501(1): Aksu at [23]. The applicant illustrated this point by reference to the criminal law principle that a sentencing judge errs if they “doubly punish” an offender by weighing a single consideration against them at multiple points in the reasoning: Wakim v The Queen [2016] VSCA 301 at [43] (per Redlich JA and Beale AJA); Torrefranca v The Queen [2021] VSCA 157 at [39] (per McLeish and Osborn JJA).

53    In response to an invitation from the Court, the applicant made the following submissions on Demir v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 870 (Demir) (per Kennett J); Jama v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 148 (Jama) (per Markovic, Sarah C Derrington and Feutrill JJ); and JZQQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 168 (JZQQ) (per Katzmann, Sarah C Derrington and Kennett JJ).

Demir

54    Whilst Demir involved a complaint as to “double-counting”, no submission was made that para 8.2 of Direction 90 was concerned only with the protection and expectations of the Australian community, nor was any submission made that the Direction was invalid. Nothing said in Demir bears on Grounds 2(a), 2(c) and 2(d). The bases on which Kennett J rejected the “double-counting” complaint are not relevant in this situation.

55    First, Kennett J concluded that the process in which the Tribunal had engaged was “not mathematical”, but rather “instinctive”. In the current case, the Tribunal’s decision did involve a degree of mathematical logic and was not instinctive. The formulaic attributions of weight at the conclusion of each passage of the reasons reveal family violence was given weight at three points. This was a case involving aggregation of factors on each side of a ledger and so Demir is distinguishable.

56    In any event, the suggestion that “instinctive” decision-making is immune from assertions of double-counting is plainly wrong.

57    In Demir, Kennett J articulated an alternative basis on which he would have rejected the double-counting complaint, namely he would have inferred that the Tribunal had adjusted the weight to be attributed to family violence to avoid any double-counting. The Tribunal’s reasons in this case do not support such an inference. The Court was not asked to draw such an inference.

Jama

58    Whilst the double-counting in Jama concerned a different matter, that is, a complaint that the seriousness of the appellant’s offending had been twice counted against him, the reasoning is instructive. The Full Court reasoned that the applicable Direction did not permit the Tribunal to double-count.

59    The reasoning supported the contention that Direction 90 should not be read to permit a single matter (family violence) to be weighed in a repetitive way (Ground 2(b)).

JZQQ

60    Ground 3 in JZQQ involved a complaint of repetitious weighing, relevant to Grounds 2(b) and 2(d). It appears that the Full Court accepted that double-counting might result in jurisdictional error, but held that the Tribunal reasons demonstrated that the Tribunal had treated each consideration separately without double-counting of family violence.

61    The Tribunal’s reasons revealed a more nuanced approach to the different considerations than occurred in the current case. Specifically:

(a)    the Tribunal’s consideration of the protection of the Australian community and family violence involved express cross-reference that suggested an appreciation of earlier reasoning and a “subtly different” approach unlike the mechanical approach in the current case; and

(b)    the Tribunal’s consideration of the expectations of the Australian community took into account the applicant’s circumstances in a considered way whereas, in the current case, the Tribunal’s weighing process was largely conclusory.

62    Ground 4 in JZQQ involved a complaint that the Tribunal had given weight to family violence for a punitive or irrelevant reason (relevant to Grounds 2(a) and 2(c)). The Court rejected the ground on the facts of the specific case. In the current case, the Tribunal’s reasons revealed that it attributed weight to family violence in a purely backward looking way unconnected to the protection or expectations of the Australian community. An example is the conclusory statement that the “Tribunal is satisfied that the Applicant has committed repeated acts of family violence against Ms AB. This primary consideration weighs substantially against his application” (at [119]). JZQQ is thus distinguishable.

MINISTER’S SUBMISSIONS

Ground 1

63    In response to Ground 1, the Minister submitted that the Tribunal did give individual consideration to the interests of each child, including to the extent that they differed, and the parental role the applicant may play in the lives of each until the child turns 18 years of age. The Minister contended that this was evident in the Tribunal’s specific reference to the children’s ages, and that “custody of the two older children is shared by Ms AB and her former partner…in that respect, the interests of the applicant’s younger [biological] children can be distinguished from those of his stepchildren” (at [120]). The Minister submitted that the Tribunal also noted differences in future care arrangements as between the applicant’s biological and stepchildren because the stepchildren were also cared for by their biological father (122]-[124]). The Minister contended that, regardless, it was a matter for the Tribunal, within its area of decisional freedom, to decide whether the best interests of the children differed and how they differed. The Minister submitted that it could not be said that the Tribunal did not turn its mind to those different interests. The Minister also contended that a younger age in itself would not always inexorably mean that the Tribunal should find a child’s interests to be more greatly affected than those of older children. The Minister further submitted that, in any event, the Tribunal found that the interests of all of the children would be substantially adversely affected by a visa refusal and that this consideration therefore “weigh[ed] substantially in favour” of the applicant ([125]).

Ground 2

64    In relation to Ground 2, the Minister submitted that the Tribunal’s reasoning reflected the overlapping nature of the considerations in paras 8.1, 8.2 and 8.4 of Direction 90. The Minister submitted there was no error in the Tribunal having considered family violence as relevant to each of those three considerations, and that the interrelationship between the three could also be seen in the individual and cumulative consideration in the Tribunal’s concluding paragraphs ([151]-[156]). The Minister contended that the Tribunal should not be taken to have forgotten in one part of its decision what it had already said in other parts of its decision. The Minister submitted that the Tribunal’s reasoning was not only backward-looking; and that while, consistent with Djalic, the Tribunal could not exercise the discretion in s 501(1) punitively, the Tribunal was entitled to look at the applicant’s past conduct to guide its assessment of the protection of the Australian community, family violence and the expectations of the Australian community.

65    The Minister otherwise refuted the contentions made by the applicant in Ground 2 and submitted that the authorities on which the applicant sought to rely do not sustain those contentions. First, the Minister resisted the submission that all reasoning in support of a decision under s 501 must link to the protection and expectations of the Australian community, and cannot add anything beyond those considerations. The Minister submitted that the paragraph of Stretton cited by the applicant does not state a principle that use of the words “privilege” and “entitlement” relate to the expectations of the Australian community. Further, the Minister contended that the passage cited by the applicant in Folau reflected the fact that past conduct can inform what the expectations of the Australian community are in a particular matter, such that it is not the case that the Tribunal’s reasoning must always be forward-looking:

48    Second, I do not understand Mr Folau’s criticism of the Minister’s comments … as “backward-looking”. Invariably, in considering whether the Australian community would expect that Mr Folau be permitted (or not) to remain in Australia, the Minister would properly have regard to, among other things, Mr Folau’s history and past conduct. As the Full Court observed in Djalic at [74], sometimes this consideration may work in favour of the non-citizen. Indeed, in this case, the Minister accepted that other aspects of Mr Folau’s history weighed in favour of him remaining in Australia.

49    Third, I do not accept that the Minister’s comments relating to Mr Folau “forfeiting the privilege of staying in Australia” reflected a punitive intent — rather these comments were again referable to the expectations of the Australian community in light of Mr Folau’s previous conduct and his visa status.

66    The Minister also submitted that the part of Buchanan J’s judgment in NBMZ cited by the applicant went beyond the basis on which the joint judgment decided that matter and, in any event, did not go so far as to say that an assessment under s 501 could not be based on past conduct. The Minister also directed the Court’s attention to Jagara v Minister for Immigration and Border Protection [2018] FCA 538 at [23], where Lee J cited that passage of Buchanan J’s judgment in NBMZ as authority for the finding that “[a]s to the ‘assumption of Risk to Australian community’, the Minister’s assessment of future risk is an ex ante exercise, which requires consideration of past conduct”.

67    Second, the Minister resisted the submission that decision-makers would take account of a matter which s 501(1) did not require them to consider if they were to assess family violence independently of other considerations. The Minister submitted that the passage at [142] in Tanielu cited by the applicant as authority for the proposition that inclusion in a s 499 direction cannot render a matter a mandatory relevant consideration was not essential to the resolution of that matter. The Minister contended that a number of cases have held, contrary to that observation in Tanielu, that a requirement to consider a matter by virtue of a s 499 direction does make that matter a mandatory relevant consideration: Kumar v Minister for Immigration and Border Protection (2020) 274 FCR 646; [2020] FCAFC 16 at [29] (per Derrington and Thawley JJ); Matthews v Minister for Home Affairs [2020] FCAFC 146 at [30] (per Middleton, Perry and O’Bryan JJ); JKPM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 171 ALD 277; [2020] FCA 1293 at [39] (per Perry J); Tran v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 75 at [24] (per Perry J); and DVDP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 567 at [17(3)] (per Perry J).

68    The Minister contended that, regardless, the Tribunal has a duty directly arising from s 499 itself to consider the matters required to be considered by a direction made under that section: Tohi v Minister for Immigration. Citizenship, Migrant Services and Multicultural Affairs (2021) 285 FCR 187; [2021] FCAFC 125 at [179], [181] (per O’Bryan J); PQSM v Minister for Home Affairs (2020) 279 FCR 175; [2020] FCAFC 125 at [90] (per Banks-Smith and Jackson JJ); and that “a failure to comply with the direction’s express requirements as to the considerations to be brought into account would be jurisdictional”: FHHM v Minister for Immigration. Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 19 at [6] (per O’Callaghan and Colvin JJ). The Minister submitted that this could also be seen in the decision in Uelese, where the High Court found that the obligation to consider the best interests of children, regardless of how the applicant presented his case, meant that the source of the mandatory consideration was the s 499 direction itself; and in Nathanson v Minister for Home Affairs (2022) 403 ALR 398; [2022] HCA 26, where the plurality observed that the issue of a direction under s 499 “required the delegate to have regard to a range of considerations” in the direction “in exercising the relevant discretion” (at [4]-[6]).

69    Third, the Minister submitted that the Full Court’s judgment in XXBN was to the effect that a decision-maker is not required, as distinct from not permitted, to give further weight to a matter where it is relevant to multiple considerations. The Minister submitted that this principle was subsequently applied in XSLJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1138, where Halley J said (at [123]) that:

Not being required to take into account a matter “repetitiously” is a fundamentally different proposition to prohibiting a matter being taken into account for two or more mandatory considerations. The matters to be taken into account in addressing mandatory and other considerations may well overlap, particularly in circumstances where a consideration is expressed in general terms. It is neither desirable nor, in my view, permissible not to have regard to material that is otherwise relevant to a consideration in Direction 79 on the basis that it is more directly relevant to another consideration in that direction.

70    The Minister contended that the applicant had not otherwise pointed to anything in the Act or Direction 90 which commands against what the applicant described as “double-counting”. Rather, by expressly authorising written directions to the Tribunal about the performance and exercise of functions and powers under s 501, the power in s 499 is sufficiently broad to encompass the guidance provided in Direction 90. The Minister contended that, given s 499 expressly allows directions about the performance of functions and the exercise of powers, it cannot be inconsistent with the Act for Direction 90 to require that a particular matter be considered. The Minister submitted that Direction 90 had not been found to be determinative of how the discretion in s 501(1) must be exercised: Jagroop v Minister for Immigration and Border Protection (2016) 241 FCA 461; [2016] FCAFC 48 at [61] (per Kenny J and Mortimer J (as her Honour then was)); and that it was for the Tribunal to determine the extent to which a consideration in Direction 90 was relevant and assisted with the exercise of that discretion: Martinez v Minister for Immigration and Citizenship (2009) 177 FCR 337; [2009] FCA 528 at [72]-[75] (per Rares J); Minister for Immigration and Border Protection v Lesianawai (2014) 227 FCR 562; [2014] FCAFC 141 at [80], [83] and [100] (per Perry J); Uelese v Minister for Immigration and Border Protection (2016) 248 FCR 296; [2016] FCA 348 at [54] (per Robertson J). The Minister noted that Direction 90 does not share the impugned “fettering” features of its predecessor Direction no 17, which was the subject of the decision in Aksu.

71    The Minister submitted that the sentencing principles to which the applicant referred are inapposite, for two reasons. First, the applicant did not appear to dispute the fact that protection of the Australian community and the expectations of the Australian community could legitimately inform each other; nor that the conduct resulting in a person failing the character test in s 501(6) may inform both. The Minister submitted that in Aksu, Dowsett J found, of those considerations, that “[e]ach is really a function of the seriousness of the person’s history of misconduct” and were “generally fair and reasonable, if repetitive” (at 21]). Second, the Minister submitted that double-counting in the context of sentencing has mathematical consequences in the outcome of that deliberative process by informing the quantum of sentence whereas the exercise of the discretion in s 501(1) was evaluative, and its outcome was binary.

72    For these reasons, the Minister submitted that it was not legally unreasonable or illogical for the Tribunal to consider the applicant’s past domestic violence conduct, whether in isolation or as informative of its consideration of the protection and expectations of the Australian community. The Minister contended that the Tribunal’s identification of the three primary considerations weighing in favour of visa refusal, and their interaction, was within the bounds of what logical, rational and reasonable minds might decide within the power conferred by the Act: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 at [78] (per Heydon J) and [131]-[135] (per Crennan and Bell JJ); Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160 at [45] (per Perram, Murphy and Lee JJ).

73    In response to an invitation from the Court, the Minister made the following submissions on Demir, Jama and JZQQ as follows.

Demir

74    No argument that Direction 90 was invalid was raised in Demir, but there was an argument that jurisdictional error arose through “double-counting”) in the way in which the Tribunal took into account family violence in its assessment of more than one primary consideration.

75    Kennett J concluded that the weight given to the three primary considerations that weighed against the applicant was decided in circumstances of the case reflecting the Tribunal’s ultimate conclusion as to what the correct decision was in light of the matters it was required to consider; not a mechanistic weighing of three considerations pointing in one direction against two pointing in the other.

JZQQ and Jama

76    The Full Court had no difficulty with the proposition that family violence could permissibly be considered against an applicant under more than one primary consideration, also noting that “family violence is a matter which overlaps with three mandatory considerations” in Direction 90. The Court did not regard “double-counting” (in any impermissible sense) as being shown by the Tribunal taking family violence into account adversely to the applicant under more than one primary consideration.

77    The Court distinguished Jama, identifying the particular jurisdictional error found by the Full Court in Jama as follows (at [65]):

In Jama, the Tribunal applied a discount to the weight to be given to the evident strength, nature and duration of Mr Jama’s ties to Australia by reason of the seriousness of his offending and afforded that consideration only slight weight in favour of revocation. It then weighed that favourable, albeit only slightly favourable, factor again against the protection of the Australian community and the expectations of the Australian community. The result was to double count the seriousness of Mr Jama’s offending against the strength, nature and duration of his ties to Australia.

78    To take family violence into account, where considered relevant, under more than one primary consideration, is permissible under the Direction.

79    The primary considerations of “the protection of the Australian community”, “family violence committed by the non-citizen” and “expectations of the Australian community” were found by the Tribunal to “considerably outweigh” the combined weight to be given to the primary consideration of “best interests of minor children in Australia” and other countervailing considerations.

80    The Full Court further found to be “misconceived” an argument by the applicant that Direction 90 did not permit the giving of weight to family violence for reasons unconnected to the protection of the Australian community unless there is some independent relevance identified.

81    Demir and Jama were also referred to in Afamiliona v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1100 (Afamiliona) (per Jackman J) when his Honour:

(a)    referred to the balancing and weighing process left to be undertaken by the Tribunal;

(b)    concluded that “matters required to be taken into account in respect of the primary and other considerations identified in the Direction can and do overlap” (at [22]);

(c)    accepted that the Tribunal “was not prohibited from taking into account the applicant’s family violence offending in relation to more than one relevant consideration where the Tribunal correctly perceived that offending was relevant to each consideration” (at [23]); and

(d)    found that “the Tribunal did not adopt a mathematical or scorecard approach that involved it tallying the number of primary and other considerations for and against revocation and then arriving at a result based on that calculation” (at [24]).

82    In the current case, it is not one where a particular consideration in favour of an applicant was twice discounted for the same reason before ultimately being weighed against primary considerations found by the Tribunal to operate against the applicant.

CONSIDERATION

Ground 1

83    The gravamen of the applicant’s complaint in relation to this ground is that the Tribunal failed to consider the different interests of the biological children individually. The applicant contended that the Tribunal was required to consider the length of time until the biological children turned 18 when considering the extent to which the applicant was likely to play a positive parental role in the future.

84    The applicant characterised this as a failure to take account of a mandatory consideration in Direction 90 because para 8.3(3) required the Tribunal to consider differences of degree where factors affect particular children more than others.

85    As the Minister pointed out, the purpose of the Direction is to guide decision-makers. It is said to provide a “framework” and the factors to be considered are “to the extent that they are relevant to the particular case”. The Direction is not prescriptive. The Tribunal must exercise its own discretion. It is not necessary, in applying the Direction, for a decision-maker to “tick off” paragraph by paragraph and say specifically how the particular paragraph or subparagraph may pertain to the particular case. The framework as described provides flexibility. That must be the case given that the decision-maker is an independent decision-maker.

86    As to the interests of the children, the Tribunal considered this issue at a number of places in the reasons:

(a)    At [6], the Tribunal noted that the applicant and Ms AB had two children together and particularly noted their birth years of 2016 and 2020. The Tribunal also noted that Ms AB had two children from a previous relationship who were born in 2008 and 2012.

(b)    At [36], the Tribunal outlined the applicant’s evidence to have “always been there” for his children by taking them to school, for swimming lessons and other activities. Reference was made to the applicant having spoken frequently with Ms AB and the children while in custodial settings. The Tribunal also recorded the applicant having said his younger biological child was one year old and the next oldest was five years old – and he was only with the younger child for four months before being taken into detention. The Tribunal referred to the applicant having spoken with the older child by video just the previous weekend and the applicant saying that he was also close to his stepchildren, having come into their lives when they were young, and communicated with them by video call. The applicant noted that the stepchildren’s biological father had a relationship with them, which the applicant said was on a “50/50 basis with Ms AB since approximately 2014”. The applicant concluded that all four children would be badly affected if he were repatriated to PNG and would grow up without a father. The applicant also said that Ms AB and the children would not relocate to live with him in PNG because benefits, education and opportunities were better for her and the children in Australia.

(c)    At [45], the Tribunal referred to evidence of Ms AB as to her being “‘stressed with the children and [the Applicant] wasn’t there’”.

(d)    At [50], the Tribunal noted the evidence of Ms AB that she was worried about what would happen to her if the applicant were repatriated to PNG. It was recorded that Ms AB intended to remain in Australia with her children because “it is not in their interests to relocate”. She said the children would be without a father.

87    The Tribunal specifically considered the best interests of minor children in Australia in [120]-[125].

88    The Tribunal separately noted the ages of the biological children with Ms AB and also the ages of Ms AB’s two children from a previous relationship. The Tribunal referred to the custody arrangements for the two stepchildren. The Tribunal noted that the interests of the applicant’s younger biological children can be distinguished from those of his stepchildren.

89    The Tribunal noted that the applicant continued to communicate frequently with his children and continued to play a prominent parental role in his children’s lives despite being in detention. The Tribunal did not doubt his relationship with the children was close and loving and that his absence had imposed an increased burden on Ms AB. The Tribunal acknowledged that the care of the older children was shared with the biological father, and that Ms AB’s capacity to continue caring for the children was affected, to some degree, by a mental health condition.

90    The Tribunal accepted that, were the applicant to be repatriated to PNG, the adverse emotional and financial impact on Ms AB and the children would be exacerbated because Ms AB did not intend to leave Australia. As to the stepchildren, the Tribunal noted that the biological father of those two children was unlikely to accept them leaving Australia, and so they were in a different position.

91    The Tribunal noted that the possibility of continuing contact by video calls and perhaps visits to PNG would be a poor substitute for the close contact the family would enjoy were the applicant to remain in Australia. The Tribunal noted that the children would be adversely affected by losing that close contact with the applicant and his emotional, and perhaps financial, support.

92    The Tribunal concluded that the refusal was not in the best interests of the children and this primary consideration weighed “substantially” in favour of setting aside the reviewable decision.

93    The applicant submitted that the Tribunal did not consider the differences of degree where factors affect particular children more than others. The applicant referred to the relatively young age of his biological children, in particular, the younger, in submitting that it could realistically have resulted in a different decision had the Tribunal considered the extent of time before the biological children reached majority because it “could reasonably have expected to add considerable weight” in the applicant’s favour.

94    From the decision, it is clear that the Tribunal was very much aware of the ages of the children. The birth years were mentioned a number of times and, specifically, reference was made to “the interests of the applicant’s younger biological children being distinguished from those of his stepchildren”.

95    The Minister submitted that, having set out the relevant birth years, the Tribunal must have considered the length of time that the children would respectively be deprived for a positive parental figure (up to the age of 18 years of age).The applicant submitted that the Court should not infer such consideration when it was not expressly stated in the reasons. This was said to be particularly so given the fact that one of the children was so young and would correspondingly be deprived of a positive, parental role figure for so long a time.

96    The Tribunal clearly noted the age of the youngest child. The Tribunal referred to the applicant’s evidence that his younger biological child was just one year old and he was only with the younger child for four months before taken into detention. In the same context, the Tribunal recorded that the next oldest was five years old. The length of time during which the children would be without a parental role figure (until the age of 18 years) was clear from that information without needing to be set out in reasons.

97    The Tribunal also noted the difference between the biological children and the stepchildren in that the stepchildren were the subject of joint custody between Ms AB and their biological father.

98    I conclude that the Tribunal did not neglect to take those matters into account. It was, of course, then a matter for the Tribunal to consider the weight which would be given to those factors. That is not a matter which appropriately is the subject of the review before this Court.

99    As to that, the Tribunal, in considering the best interests of the children, concluded that this primary consideration “weighs substantially in favour of setting aside the reviewable decision”.

100    This was, of course, an outcome which was within the decisional discretion of the Tribunal. I do not think it follows that any further consideration could, as the applicant submitted, reasonably have been expected to add considerable weight. Particularly in view of the finding that the conduct “weighs substantially in favour of setting aside the reviewable decision”, I do not think that further information would have altered that decision, which was a substantial weight in favour of revocation.

101    This ground must fail.

Ground 2

102    Ground 2 contained two complaints regarding the application of para 8.2 of Direction 90 which concerned “family violence committed by the non-citizen”.

103    Grounds 2(a) and 2(c) asserted that para 8.2 of Direction 90 could not validly permit consideration of an applicant’s family violence divorced from considerations of protection of the community and/or expectations of the Australian community.

104    Grounds 2(b) and 2(d) asserted that para 8.2 of Direction 90 cannot validly permit an applicant’s family violence to be weighed against them under that paragraph in circumstances where it is also proposed to weigh the matter against the applicant in an identical way under the primary considerations relating to the protection of the Australian community and expectations of the Australian community (paras 8.1 and 8.4 of Direction 90). This has been referred to as “double-counting”.

105    I will deal with the “double-counting” issue first.

106    The most recent authority to deal with this issue has been JZQQ, which is a Full Court decision handed down in October 2023, by which I am bound. The parties made submissions on 17 November 2023 and 20 November 2023 regarding this and two other cases (Demir and Jama).

107    The matter was also considered by Halley J in XSLJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1138 (in relation to Direction 79, which was a precursor to Direction 90). Halley J observed (at [123]):

The matters to be taken into account in addressing mandatory and other considerations may well overlap, particularly in circumstances where a consideration is expressed in general terms. It is neither desirable nor, in my view, permissible not to have regard to material that is otherwise relevant to a consideration in Direction 79 on the basis that it is more directly relevant to another consideration in that direction.

108    Jackman J considered the question of “double-counting” in Afamiliona, which was decided prior to the decision in JZQQ being handed down, but which is consistent with the Full Court decision.

109    As was pointed out in JZQQ, the paragraph in XXBN on which the applicant relied is not against the proposition that a matter might be taken into account for two or more mandatory considerations.

110    From those authorities, it is clear that the considerations may overlap and a matter might be taken into account in relation to two or more mandatory considerations.

111    As was said in JZQQ:

54    Since the promulgation of Direction 90, 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. If, through conduct involving acts of family violence, there is a community expectation that the non-citizen should not remain in Australia, it is at least likely that part of the underlying rationale is the need to protect the Australian community from persons who could commit crimes which the community views very seriously. The other rationale is the Government’s serious concerns about conferring on non-citizens who engage in family violence the privilege of remaining in Australia, albeit proportionate to the seriousness of the family violence.

54    Viewed in this way, 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.

112    Given the structure and contents of the Direction, it would be an error for a decision-maker not to take into account those matters which are set out, including domestic violence. The decision-maker was obliged to take into account the primary considerations set out in Part 8 of the Direction. As is evident from the Tribunal’s reasons, that is what occurred in this case.

113    I agree with the observation made by Jackman J (in Afamiliona at [23]) that:

the Tribunal was not prohibited from taking into account the applicant’s family violence offending in relation to more than one relevant consideration where the Tribunal correctly perceived that offending was relevant to each consideration. Neither the Act nor the Direction prohibited the Tribunal from giving weight to the applicant’s family violence offending in the context of multiple primary considerations. The Tribunal was obliged to take into account the primary considerations in para 8 of the Direction and to consider the evidence bearing on those considerations, which is what it did. The Direction did not and could not dictate the weight that the Tribunal gave to the applicant’s family violence offending, which remained a factual question for the Tribunal to be balanced against the other relevant considerations in arriving at the ultimate state of satisfaction mandated by s 501CA(4)(b)(ii) of the Act. It was lawfully open to the Tribunal to consider and give weight to the applicant’s multiple convictions, including family violence, both to the extent this conduct informs the consideration of the protection and expectations of the Australian community and as a primary consideration in its own right.

114    The applicant dealt with the asserted treatment of family violence under paras 8.1, 8.2 and 8.4 of Direction 90 at [19]-[21].

Protection of the Australian community

115    As to the protection of the Australian community, the applicant’s submissions focused on the Tribunal noting that certain behaviour by the applicant “collectively constitutes family violence” and suggested that this characterisation of conduct fed into the Tribunal’s assessment that the applicant’s overall offending was very serious. It was suggested that this characterisation led to the conclusion that the focus was on family violence.

116    The Tribunal’s analysis was contained in [77]-[110]. The reasons referred to trespass and unlawful entry of a vehicle ([77]), repeated nature of the applicant’s drink-driving reflecting a reckless indifference for the safety of other road users with a potential to cause death or serious injury ([78]) and contravening domestic violence orders ([79]).

117    In [80], to which the applicant referred, the Tribunal summarised that the preponderance of the applicant’s offending and other objectionable conduct related to repeated contraventions of family violence orders to protect Ms AB, drink-driving and breaching conditional liberty.

118    The Tribunal noted the applicant had offended frequently since 2012, receiving increasingly severe punishments, including several terms of imprisonment, reflecting an upward trend in serious offences (citing para 8.1.1(1)(d)). The Tribunal referred to the cumulative effect of the applicant’s repeat offending imposing costs on the community and reflected a persistent lack of respect for Australia’s law-enforcement framework (citing para 8.1.1(1)(e)). It was on the basis of these matters that the Tribunal concluded the applicant’s overall offending was very serious.

119    The analysis reflected a careful and balanced consideration of all the factors broadly outlined in para 8.1 (Protection of the Australian Community), such as risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct, offending and recidivism risk, remorse and rehabilitation, protective factors and future aspirations and then finally made findings regarding the recidivism risk. The analysis included family violence and driving whilst intoxicated. The Tribunal noted that the community’s tolerance of such offending by non-citizens was very low.

120    The Tribunal concluded (at [110]) that:

[T]he Applicant engaged in persistent alcohol abuse and offending. He constitutes at least a moderate risk of recidivism. Given the very serious nature of the Applicant’s past offending and the harm such conduct can cause, coupled with a moderate and unacceptable recidivism risk, this primary consideration weighs very substantially against exercising the discretion in his favour.

121    The reasons demonstrated a considered review of the history of the applicant’s offending and issues concerning the protection of the Australian community. The conclusion reached was open to the Tribunal and within the “area of decisional freedom” of the decision-maker.

Domestic violence

122    Paragraph 8.2 of Direction 90 was dealt with in [20] of the applicant’s submissions. The applicant asserted that the Tribunal concluded “the Applicant has committed repeated acts of family violence against Ms AB” and that, accordingly, the Tribunal ultimately held that this primary consideration “weighs substantially against” the applicant. The applicant asserted that this matter was given independent weight to paras 8.1 and 8.4.

123    The Tribunal’s discussion concerning family violence committed by the non-citizen was set out in [111]-[119] of the Tribunal’s reasons. As was said in JZQQ, whilst the government has signalled that perpetrators of family violence should lose the privilege of remaining in Australia, a proportionate approach must be taken by decision-makers. The circumstances of family violence will impact upon the weight given in all matters both favourable and adverse to the non-citizen.

124    In its reasons, in following a proportionate approach, the Tribunal considered the nature of the family violence. The focus was on the seriousness of the family violence. Reference was made to submissions on behalf of the applicant contending that the applicant engaged in “negative behaviour”, but had “never been convicted of a violent offence, only of contravention of a domestic violence order”. The reasons contained a detailed analysis of that claim by the applicant, including of the evidence (such as police evidence) dealing with that claim.

125    This analysis (which essentially went to the conduct) was relevant to the protection and expectations of the Australian community.

126    Paragraph 119, which was referred to by the applicant in these proceedings, referred initially to contemporaneous police records setting out observations during the various incidents (about which there was a dispute concerning the level of violence) and concluded that there was no reason to doubt the contemporaneous police records. What followed was the conclusion that this primary consideration weighed substantially against his application. This was a finding which was proportionate and consistent with the careful analysis undertaken by the Tribunal in that section and open to the Tribunal.

127    The applicant submitted that the assessment of the applicant’s prior offending was purely backward-looking and was thus punitive in nature. However, the evaluation of past events must be seen in context. In the reasons, the Tribunal referred to various authorities concerning the interrelationship between the establishment of the occurrence of past events and the evaluation of the prospect that an event might occur in the future. The Tribunal referred to the observations made by Mortimer J (as her Honour then was) in Assistant Minister for Immigration and Border Protection v Splendido (2019) 271 FCR 595; [2019] FCAFC 132 (at [78]):

The nature and circumstances of past offending are integral to any assessment of the risk, or likelihood, also of relevance are a range of other factors about the present circumstances of an individual which may bear on a risk of whether past offending conduct might or might not be repeated. It is these matters, and not the mere specification of a criminal record, which provide the probative basis for assessment about the nature and extent of any risk of further offending.

128    As is clearly evident from the reasons, the Tribunal undertook a careful analysis of the past offending and also the current circumstances which might be relevant. The Tribunal’s decision was therefore not purely backward-looking as contended by the applicant.

129    The applicant further submitted that, in considering family violence, the Tribunal impermissibly “double-counted” the applicant’s past family violence conduct. The applicant sought to distinguish the decision of the Full Court in JZQQ, where it was concluded that the Tribunal’s reasons demonstrated that “the Tribunal has treated each consideration separately, and without ‘double counting’ family violence”.

130    The applicant submitted that, importantly, the Tribunal’s reasons in JZQQ revealed a “more nuanced approach” to the different considerations than occurred in the current case. The example given was the use of the word “again” in the following passage (JZQQ at [49]):

The attribution of moderate weight to this consideration again reflects a balance. On the one hand, the family violence in which the [applicant] engaged was very serious (as is evident from the description of what occurred outline[d] earlier). On the other hand, that violence involved conduct characterised as “an extreme aberration in” the applicant’s personal history, reflective (according to the respondent) of a “once-off” incident.

(italics in original)

131    The applicant submitted that this “suggests an appreciation of earlier reasoning and a ‘subtly different’ approach” (referring to [54] of the Full Court judgment when the observation was made that “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”). The comparison made by the applicant was with the reasons outlined in [110] (I assume [111]) to [119], which the applicant described as a “mechanical approach”.

132    I do not think the point is well made. The reference to “again” is to the fact that a similar balancing exercise took place in the evaluation concerning protection of the Australian community. The balance arose because, in the case of JZQQ, the conduct was an extreme aberration and unlikely to be repeated. That was certainly not the position in this case. The evidence in this case pointed towards the applicant offending frequently and receiving increasingly severe punishments, including several terms of imprisonment. It was noted that this reflected an upward trend of serious offences. It was noted that the cumulative effect of the applicant’s repeat offending had imposed costs on the community and reflected a persistent lack of respect for Australia’s law enforcement framework ([81]).

133    In the section to which the applicant referred ([111]-[119]), the approach cannot fairly be called “mechanical”. For the purpose of ensuring that the discretion was exercised in a proportionate way, it was necessary for the Tribunal to consider in detail the assertions made by the applicant about severity and violence. Those assertions were contrary to other evidence, such as police evidence, and it was important for those issues to be resolved. The appropriate and fair way to do this was to be methodical. The conclusion reached in [119] was consistent with the thorough analysis which was undertaken. The conclusion was one which was clearly open to the decision-maker.

Expectations of the Australian community

134    When discussing the expectations of the Australian community, the applicant referred to the Tribunal decision in JZQQ relating to the fourth primary consideration (at [50] of the Full Court reasons). However, when referring to the current Tribunal reasons, the submissions referred to [119], which related to the second primary consideration. The relevant conclusion was at [54].

135    Again, the applicant seeks to draw a distinction between the Tribunal’s consideration of the expectations of the Australian community in JZQQ and the current case. It was submitted that the Tribunal in JZQQ “took into account the Applicant’s circumstances in a considered way” whereas in the current case the Tribunal’s weighing process was largely “conclusory”.

136    The passages in question from JZQQ reveal a discussion of the nature of the fourth primary consideration, concluding that the Australian community expectations consideration weighs against revocation of the visa cancellation decision, but that “[t]he extent to which it do so, however, depends on what is appropriate ‘in the particular circumstances’” (at [156]). The Tribunal then proceeded to highlight again the applicant’s risk of recidivism being low, coupled with the relevant offending comprising a one-off incident.

137    In this case, the Tribunal also outlined the effect of the fourth consideration ([126]-[130]), noting that the “deemed community expectation” would, in most cases, call for cancellation, but the Tribunal noted that “the question of whether it is appropriate to act in accordance with the deemed community expectation is in all cases left for the decision-maker to determine” (italics in original). This was similar to the analysis by the Tribunal in JZQQ.

138    The Tribunal went on to say (at [131]) that:

The Applicant’s offending reflects serious breaches of the privilege afforded to non-citizens to enter and remain in Australia. He has not been law-abiding and has not respected important institutions like the courts. His persistent criminal conduct raises serious character concerns within the meaning of cl 8.4(2)(a) of the Direction and he should expect to forfeit the privilege of staying in Australia.

139    Again, the reasons in each matter were quite different being driven by the different circumstances. This, of course, would be expected.

140    To assert that the passage was “largely conclusory” by comparison is again not a fair characterisation of the reasons. In each case, the Tribunal considered the effect of the fourth primary consideration and the discussion of the circumstances was not dissimilar, except that, as mentioned, in one case the risk of recidivism was low and it was coupled with the offence being a one-off incident, whereas in the other case the opposite was the position.

141    A second issue raised in the context of Ground 2 was whether para 8.2 of Direction 90 could not validly permit consideration of an applicant’s family violence divorced from consideration of protection of the community and/or expectation of the Australian community.

142    This ground was also considered in JZQQ where the Full Court observed (at [69]):

This ground is misconceived. The fact that the Tribunal must give weight to family violence, where relevant, because it is a primary consideration in Direction 90, is squarely premised on the protection and expectations of the Australian community.

143    As was the case in JZQQ, there was nothing in the reasons of the Tribunal in this case which would indicate that the Tribunal approached the consideration of para 8.2 in a manner unconnected to the protection or expectations of the Australian community. So much is clear from what I have said in these reasons regarding the Tribunal’s decision.

144    In the Full Court reasons in JZQQ, the Court undertook an analysis of para 5.2 of Direction 90 and observed (at [73]):

There is nothing that can be derived from the terms of para 8.2 to suggest that it is contrary to the principles in para 5.2, even less that it is in some way punitive. Each of primary considerations 1, 2 and 4 are focussed on different matters: one on the protection of the community, whereby seriousness of conduct is weighed against risk factors; one on the Australian Government’s concern about perpetrators of family violence remaining in Australia; and one on the expectations of the Australian community about those who are not law abiding and those whose conduct raises serious character concerns. The fact that family violence is “viewed very seriously” in relation to the first, is to be considered “proportionately” within the context of the Government’s concerns about such conduct, and that it “raises serious character concerns” does not connote that the relevant act of family violence is to be considered and treated in a punitive manner with respect to each consideration. A plain reading of Direction 90 indicates otherwise.

145    I agree with, and follow, the decision of the Full Court.

146    This ground must be dismissed.

CONCLUSION

147    Ultimately, it was a matter for the Tribunal to evaluate each of the prescribed considerations, including family violence offending, which was relevant in the context of multiple primary considerations. It was a matter for the Tribunal, as a factual question, to decide the weight that the Tribunal would give to the various considerations and to balance the relevant considerations in arriving at the ultimate state of satisfaction which was mandated by the legislation.

148    The Tribunal did this. In its conclusion, the Tribunal made the following observations:

152.    The Applicant’s overall offending is very serious and is characterised by repeat family violence, drink-driving offences, and breaches of conditional liberty. The Tribunal has little confidence in his latest assurances that rehabilitative progress during the last year in detention has mitigated his recidivism risk to an acceptable level, particularly when considered in the context of the resumed relationship with Ms AB.

153.    The Applicant’s persistent criminal conduct reflects serious breaches of the privilege afforded to non-citizens to enter and remain in Australia. He has not been law-abiding nor respected important institutions like the courts. His persistent criminal conduct raises serious character concerns within the meaning of cl 8.4(2)(a) of the Direction and he should expect to forfeit the privilege of staying in Australia.

154.    the Tribunal accepts the Applicant’s biological children and stepchildren would be adversely affected by losing contact with the Applicant and his emotional and perhaps financial support. Visa refusal is not in their best interests.

155.    The Tribunal accepts that after ten years living in Australia, the Applicant is likely to experience a period of adaptation in resuming his life in PNG. He has close ties to Ms AB, their children, and other friends and past employers. If removed, he would be unlikely to be permitted to return for the foreseeable future.

156.    Having weighed all relevant considerations individually and cumulatively, the Tribunal finds the discretion under s 501(1) of the Act should be exercised to refuse to grant the Applicant’s visa. That is because the primary considerations ‘Protection of the Australian community,’ ‘Family violence committed by the non-citizen’, and ‘Expectations of the Australian community,’ considerably outweigh the combined weight to be given to the primary consideration ‘Best interests of minor children in Australia’ and the other countervailing considerations.

(italics and errors in original)

149    I will order that the amended originating application filed on 27 July 2022 be dismissed and that the applicant pay the first respondent’s costs of and incidental to the application, to be taxed if not agreed.

Associate:    

Dated:    29 January 2024