Federal Court of Australia

AUP21 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 442

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The applicant pay the first respondent’s costs of the application, to be assessed by a Registrar if not agreed.

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

REASONS FOR JUDGMENT

ROFE J:

1    The applicant seeks judicial review of a decision of the second respondent, the Administrative Appeals Tribunal, made on 14 September 2023. The Tribunal affirmed the decision of a delegate of the first respondent (the Minister) under s 501CA(4) of the Migration Act 1958 (Cth) not to revoke the cancellation of the applicant’s Subclass 202 visa.

2    For the reasons that follow, the amended application dated 8 March 2024 should be dismissed.

Background

3    The applicant was born in an area that is now part of South Sudan. He arrived in Australia in 2003 when he was 14 years old.

4    The applicant has a lengthy criminal history, including acts of violence, which was summarised by the Tribunal at [21]-[27]. His first offending occurred in 2007 and his most recent offending occurred in 2022 in detention.

5    The applicant has never been convicted of offences relating to family violence. However, there was extensive material before the Tribunal which showed that the applicant engaged in family violence. The Magistrates Court of Queensland (at Beenleigh) made a protection order against the applicant on 11 March 2009 under the Domestic and Family Violence Protection Act 1989 (Qld) (DFVP Act). This act was repealed on 17 September 2012.

6    While serving a 12-month prison sentence in 2011 and 2012, the applicant received two separate “Notice[s] of Intention to Consider Cancellation of your Visa under subsection 501(2) of the Migration Act 1958” from the Department of Immigration and Citizenship. His visa was not cancelled but these notices are relevant to Ground Four.

7    On 11 September 2017, the applicant’s visa was mandatorily cancelled by a delegate of the Minister under s 501(3A) of the Act on character grounds due to his substantial criminal record and because he was serving a sentence of imprisonment of over 12 months.

8    On 18 September 2017, the applicant sought revocation of that cancellation decision.

9    On 22 December 2020, a delegate of the Minister decided not to revoke the cancellation decision. The applicant applied to the Tribunal for review of the delegate’s non-revocation decision.

10    The Tribunal has affirmed the delegate’s non-revocation decision three times. The decisions were made on 15 March 2021, 14 November 2022 and 14 September 2023.

11    The first two decisions by the Tribunal were set aside by the Federal Court by consent from both parties.

12    The third Tribunal decision, made in 2023, is the decision now under review.

GROUNDS OF REVIEW

13    The applicant’s amended originating application sets out four grounds of review which are set out in full below:

1. The Administrative Appeals Tribunal (Tribunal) constructively failed to exercise jurisdiction by illogically or irrationally misapplying para 8.2 of Direction 99: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction) or, in the alternative, failing to give proper consideration to the applicant’s evidence.

Particulars

a. The Tribunal found that para 8.2(2)(b) of the Direction was engaged based on an “isolated event”, which involved the applicant having kicked his pregnant partner in the stomach and resulted in a domestic violence order: Reasons [40], [42].

b. The evidence before the Tribunal was of separate incidents involving two different women, none of which involved kicking a pregnant partner in the stomach.

c. The Tribunal’s reliance on evidence concerning separate incidents to find a single event was illogical or irrational.

d. Alternatively, the Tribunal failed to give proper and genuine consideration to the applicant’s evidence before the Tribunal that the woman he kicked was not his girlfriend and was not pregnant.

2. The Tribunal constructively failed to exercise jurisdiction by misapplying para 8.2(3) of the Direction or failed to consider important evidence.

Particulars

a. Para 8.2(1) of the Direction required the Tribunal to consider the ‘seriousness’ of the family violence, by reference to the relevant factors in para 8.2(3). Para 8.2(3)(c)(iii) required the Tribunal to consider, where relevant, “rehabilitation achieved at time of decision since the person's last known act of family violence, including … efforts to address factors which contributed to their conduct.”

b. The Reasons at [40]-[42] do not record any consideration of the applicant’s efforts to address factors that contributed to his family violence conduct.

c. Alternatively, the Tribunal’s assessment of the seriousness of the family violence and its finding that para 8.2 of the Direction weighed against revoking the cancellation decision (at Reasons [42]) failed to consider the applicant’s evidence that he had not kicked a pregnant partner.

3. The Tribunal constructively failed to exercise jurisdiction by misconstruing para 8.2 of the Direction and erroneously finding that the applicant had been afforded procedural fairness as required by para 8.2(2)(b) of the Direction.

4. The Tribunal constructively failed to exercise jurisdiction by misconstruing para 8.1.1(1)(g) of the Direction.

Particulars

a. In assessing the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, para 8.1.1(1)(g) required the Tribunal to consider “whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of such a warning should not be considered to be in the non-citizen’s favour).”

b. The Tribunal found that the applicant “continued to offend despite a formal warning that his visa may be cancelled”: Reasons [27].

c. There was no evidence before the Tribunal that the applicant had been ‘formally warned in writing’ about the consequences of further offending in terms his migration status.

d. The Tribunal proceeded on the mistaken basis that it was required by para 8.1.1(1)(g) to consider that factor as weighing against revocation when the factor was not an applicable mandatory relevant consideration in this matter.

14    Grounds One to Three are connected, and all relate to para 8.2 (“Family violence committed by the non-citizen”) of Ministerial Direction No. 99 made on 23 January 2023 pursuant to s 499 of the Act (Direction). I will consider each ground in turn below.

Ground One

15    Grounds One to Three concern [40]-[42] of the Tribunal’s reasons:

40.     The Government has serious concerns about conferring the privilege of remaining in Australia on non-citizens who engage in family violence. The applicant has not been convicted of any offences involving family violence but the respondent contended there was evidence of family violence. The evidence suggests that the applicant was involved in a volatile relationship with a former partner. The applicant admitted before the Tribunal in 2021 that whilst drunk he was violent towards his pregnant partner and that he ‘lost it’ and kicked her. That conduct occurred in March 2009 when a domestic violence order was issued against the applicant in Queensland. The applicant admitted before me that he kicked his partner in the tummy but he said that he was drunk at the time and that if he was sober he would not have done it.

41.     In his December 2021 statement the applicant said:

[15] I am aware that there have been domestic violence orders taken out against me in the past. I don’t have a clear memory the circumstances leading to these orders as was taking a lot of drugs during that period. I am ashamed to think that I have ever been violent or threatening towards women. My father was a violent man and used to beat my mother. I never wanted to hurt women the way that he did. I am determined never to give any woman any reason to fear harm from me again. I think that staying away from alcohol and drugs will ensure that this does not happen.

42.     The reference above to a domestic violence order relates to a protection order made on 11 March 2009 in the Magistrates Court of Queensland which recorded that the court was satisfied that the applicant had committed an act of domestic violence and was likely to do so again. The evidence does not establish further acts of domestic violence. I take into account that this was an isolated event and that he has expressed appropriate remorse for his conduct. He appears to have insight into the harm that is caused by domestic violence. Nevertheless, the Government has serious concerns about those who engage in family violence, and I consider that this is a factor that weighs against revoking the cancellation decision. I give less weight to it because it was an isolated incident and he accepted responsibility and understood the impact of his behaviour.

(Emphasis added in bold.)

16    When read as a whole, the Tribunal at [40]-[42] found that para 8.2 of the Direction was engaged because there was a single incident of family violence which resulted in a protection order by the Magistrates Court. This incident purportedly involved the applicant kicking his pregnant partner in the tummy.

17    The applicant contends that this conclusion cannot be supported by the evidence and therefore there was no basis for the Tribunal to consider the mandatory relevant consideration of family violence in para 8.2 of the Direction (Primary Consideration 2). Jurisdictional error can be established either on the basis that the Tribunal breached s 499(2A) of the Act by failing to comply with the Direction (LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12 at [30]-[31] (per Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ)) or that the Tribunal reasoned illogically or did not understand the evidence before it.

18    The applicant admitted to the Tribunal that he kicked a woman in 2009 which was the basis for the protection order. He also admitted that he engaged in other acts of family violence. His only point of disagreement with the Tribunal is that the applicant says the woman he kicked in 2009 was not his partner and not pregnant.

19    The applicant contends that the Tribunal has conflated two different events with two different women and the applicant did not admit to kicking his pregnant partner in the tummy in 2009 as claimed by the Tribunal.

Evidence of family violence and violence against women

20    It is worthwhile setting out all the evidence before the Tribunal relating to the different women in the applicant’s life. In his statement before the most recent Tribunal, the applicant mentions three romantic partners: M, AD and S. A fourth woman, AW, was mentioned in his oral evidence before the Tribunal but he said she was never his romantic partner.

(a)    M – she met the applicant in 2006 and they had a son in 2008. They separated in 2011.

(b)    AD – she had two sons with the applicant, born in 2009 and 2012. They originally met in Melbourne, but AD now lives in Brisbane.

(c)    S – she met the applicant in 2012 in Melbourne and was his girlfriend until 2015 when he was imprisoned. They had one daughter in 2013.

(d)    AW – they met in Melbourne but also had contact in Adelaide and Brisbane.

21    The transcripts from the 2021 and 2022 Tribunal proceedings were before the 2023 Tribunal. In the cross-examination in the various Tribunal proceedings, the presiding member or Minister’s representative often referred to women as “she” or “her” and did not clarify which woman they were referring to when recounting an incident of alleged domestic violence. It is therefore very difficult to discern from the transcripts before the Tribunal which of the four women is being referred to. This is made especially difficult as there was some overlap in when the applicant was in a relationship with these women and that he was with some of them in multiple locations.

22    The applicant conceded that the evidence established that he engaged in the following acts of violence towards women.

23    The applicant admitted in cross-examination before the 2021 Tribunal that he was “violent” towards M when she was pregnant when they lived in Perth. However, he said that “I never hit her”. There was no clarification of how he was violent towards her or the date of this incident.

24    On 7 March 2009 in Brisbane, the applicant pushed a woman to the ground and kicked her. The identity of the woman is unclear from the police report and her identity was not clarified in cross-examination.

25    A police report dated 4 March 2009 (the Police Report) details the following incidents all involving the same aggrieved woman. The woman involved in the incidents is not identified in the Police Report, but the applicant identified the woman as AW in cross-examination.

    In mid-December 2008, the applicant “chased [AW] around the house with a knife”. The applicant denied this incident occurred in cross-examination.

    On 14 February 2009 in Brisbane, he kicked AW in the mouth and she had to go to the dentist. The applicant said the incident occurred because he caught her with another man and “I was on too much alcohol … and I just lost it”.

    On 4 March 2009 in Brisbane, he choked AW and threatened her with a pole, saying “I’m going to put you in a wheelchair” as he swung the pole. Police attended the scene.

26    In cross-examination before the Tribunal, the applicant sought to downplay any violence against AW on the basis that:

We were just friends. She followed me wherever I go. When I went to Adelaide, she followed me there, and she followed me to Brisbane. And also, when I came to Melbourne, she followed me to Melbourne.

…

But this thing happened; she was all the time after me, causing trouble wherever I go, and that thing happened. I didn’t intend to do it to any woman, but it happened because she was all the time causing trouble. She’s a troublemaker.

27    The Police Report says that the applicant was living with AW at the time of these incidents but describes the applicant as her “friend”. The Police Report also notes that the applicant denied that he choked AW on 4 March 2009 but admitted they had been in a “physical altercation”.

28    The Police Report concludes:

The agg stated that the resp propensity for violence is increasing and she is in fear from receiving injury from the resp. Police believe that without a domestic violence order domestic violence will continue. The agg showed genuine fear and is scared of the resp. The resp has displayed his propensity for violence to police in the past and has been charged with assault and other violent offences in the past.

29    The protection order by the Magistrates Court was made on 11 March 2009 on the basis of the incidents described in the Police Report. The protection order states:

The Court is satisfied that the respondent has committed an act of domestic violence against the aggrieved and that the respondent is likely to commit an act of domestic violence again or is likely to carry out a threat to commit an act of domestic violence.

30    At the Tribunal hearing, the Deputy President put the protection order to the applicant and asked “do you accept that you had committed an act of domestic violence?”. The applicant’s response (through his interpreter) was “Yes”.

31    Later in the Tribunal hearing, the following exchange occurred between the Deputy President and the applicant in relation to AW:

DEPUTY PRESIDENT: But you said that you did kick her?---Yes.

You accept that now, do you?

INTERPRETER: I kicked her, but not the mouth. I didn’t kick her in the mouth. The tooth was already brown; was broken from other incidences, maybe, so I didn’t kick her in the mouth – in the mouth.

DEPUTY PRESIDENT: Where did you kick her?

INTERPRETER: In the tummy. She hit my head with a baseball bat.

DEPUTY PRESIDENT: Thank you.

Consideration

32    The applicant’s counsel said that the Tribunal failed to grapple with how the Magistrates Court could have made a protection order in circumstances where the aggrieved person (AW) was not in his partner, the suggestion being that the violence perpetrated against her cannot constitute domestic violence because she was not his partner. That contention must be rejected. Domestic violence as defined by the DFVP Act may be committed against a person who is not in a romantic or sexual relationship with the perpetrator.

33    Section 11 of the DFVP Act defines domestic violence as certain acts committed “against another person if a domestic relationship exists between the 2 persons”. “Domestic relationship” is defined in s 11A as including “an intimate personal relationship” which, as specified in s 12A(2), may exist “where or not the relationship involves or involved a relationship of a sexual nature”.

34    AW and the applicant lived together when the violent incidents took place, and the applicant gave evidence (already set out above) that AW “would follow me wherever I would go. When I went to Adelaide, she followed me there. She followed to Brisbane, and when I came to Melbourne, she followed me to Melbourne”. He also said during the 2021 Tribunal hearing that “I used to love her”. It is entirely consistent with the definition of “domestic relationship” in the DFVP Act to describe AW and the applicant’s relationship as an “intimate partner relationship” even if she was not his sexual or romantic partner.

35    In any event, the protection order states that the Court was satisfied that the respondent had committed an act of domestic violence. There was no appeal from that finding. It is not the Tribunal’s role, nor this Court’s role, to go behind the conclusion as to the satisfaction of the Magistrates Court.

36    The applicant’s primary complaint remains: that there is no evidence before the Tribunal to support its finding that the applicant kicked his pregnant partner in the tummy in 2009 which led to the protection order.

37    Based on my discussion above, it was open to the Tribunal to find that the person who the applicant kicked in 2009 in Brisbane was his partner, when that term is construed broadly in the context of the DFVP Act under which the protection order was made.

38    Nevertheless, it was not open to the Tribunal to describe that person as pregnant. AW was not pregnant when the applicant committed the acts of violence against her.

39    The Tribunal seems to have confused a number of the different events of violence described above and conflated them into a single incident. That confusion is explicable given that the identity of the relevant aggrieved woman is not revealed in the various police reports, and the cross-examination on these incidents did not clarify this ambiguity. It is also complicated by the fact that the Police Report and the applicant’s evidence to the 2021 Tribunal was to the effect that he kicked AW in the mouth, but he later changed his evidence to the 2023 Tribunal and said he kicked her in the tummy.

40    The question is whether the Tribunal’s confusion constitutes jurisdictional error in circumstances where it is indisputable that the applicant engaged in family violence on (at least) one occasion and therefore para 8.2 of the Direction was enlivened.

41    The High Court in Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582 at [27] (per Kiefel CJ, Keane, Gordon and Steward JJ) said that jurisdictional error is established where the decision-maker “ignored, overlooked or misunderstood relevant facts or materials”.

42    The Tribunal misunderstood and conflated the multiple different incidents of domestic violence perpetrated by the applicant. It was open to the Tribunal to find that the applicant kicked his partner in the tummy based on the applicant’s evidence during the 2023 Tribunal hearing. However, it was not open to the Tribunal to conclude that the partner who was assaulted was pregnant. This misunderstanding led the Tribunal to wrongly conclude that the applicant kicked a pregnant woman in the tummy. That was an error.

Materiality

43    However, “an error will only be jurisdictional if the error was material to the decision that was made in fact, in the sense that there is a realistic possibility that the decision that was made in fact could have been different if the error had not occurred”: LPDT at [7] (per Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ).

44    The plurality in LPDT described the threshold of materiality at [14]-[16]. It is worthwhile setting out those paragraphs in full:

[14]     The question in these cases is whether the decision that was in fact made could, not would, "realistically" have been different had there been no error. "Realistic" is used to distinguish the assessment of the possibility of a different outcome from one where the possibility is fanciful or improbable. Though the applicant must satisfy the court that the threshold of materiality is met in order to establish that the error is jurisdictional, meeting that threshold is not demanding or onerous.

[15]     What must be shown to demonstrate that an established error meets the threshold of materiality will depend upon the error. In some cases, it will be sufficient to show that there has been an error and that the outcome is consistent with the error having affected the decision. Where the error is a denial of procedural fairness arising from a failure to put the applicant on notice of a fact or issue, the court may readily be able to infer that, if fairly put on notice of that fact or issue, the applicant might have addressed it by way of further evidence or submissions, and that the decision-maker would have approached the applicant's further evidence or submissions with an open mind. In those cases, it is "no easy task" for the court to be satisfied that the loss of such an opportunity did not deprive the person of the possibility of a successful outcome. Importantly, a court called upon to determine whether the threshold has been met must be careful not to assume the function of the decision-maker: the point at which the line between judicial review and merits review is crossed may not always be clear, but the line must be maintained. This case affords an example.

[16]     In sum, unless there is identified a basis on which it can be affirmatively concluded that the outcome would inevitably have been the same had the error not been made, once an applicant establishes that there has been an error and demonstrates that there exists a realistic possibility that the outcome of the decision could have been different had that error not been made, the threshold of materiality will have been met (and curial relief will be justified subject to any issue of utility or discretion).

45    The Tribunal at [82]-[83] engaged in the evaluative assessment of weighing the relevant mandatory considerations with other relevant considerations provided in the Direction. The Tribunal said at [82] that the “primary considerations of the protection and expectations of the Australian community and, to a lesser extent, family violence weigh in favour of not revoking the cancellation decision”. Other than this reference to family violence, the Tribunal’s evaluative assessment did not mention the mandatory consideration of family violence but focussed entirely on the applicant’s history of violent offending and consequent risk of harm to the community as the primary consideration that weighed in favour of not revoking the cancellation decision.

46    Para 8.1(1) of the Direction notes that the Government’s concerns in relation to family violence is “proportionate to the seriousness of the family violence engaged in by the non-citizen”. All acts of violence against women are serious and contemptable. However, kicking a pregnant woman in the tummy is a particularly serious form of violence given the potential consequences. The Tribunal said at [42] that it gave the consideration of family violence “less weight because it was an isolated incident and he accepted responsibility and understood the impact of his behaviour”. The Tribunal could hardly have been more generous to the applicant in assigning the weight that it did to this consideration given the evidence before it of the applicant’s history of violence against women.

47    Nonetheless, the Tribunal’s comment that it gave Primary Consideration 2 “less weight” cannot be taken to mean that it gave this consideration minimal weight or no weight at all. “Less” is a relative concept. When this paragraph is read in context with the Tribunal’s conclusion immediately above at [39] that “the protection of the Australian community is a factor that weighs heavily against the applicant”, it is clear that the Tribunal means that Primary Consideration 2 is given “less weight” than Primary Consideration 1 (protection of the Australia community).

48    Ultimately, I do not consider that the Tribunal’s error was material.

49    The applicant contends that the error was material because the Tribunal wrongly concluded that para 8.2 was engaged when it was not and therefore it included a mandatory consideration in its evaluative assessment that was not relevant. That contention depends on the applicant’s submission that the incident in 2009 in Brisbane which led to the protection order by the Magistrates Court cannot be characterised as family violence because the victim was not the applicant’s romantic partner. I have rejected that submission above.

50    The Tribunal correctly found that the applicant had engaged in family violence and therefore did not err in finding that para 8.2 was enlivened and relevant to its evaluative assessment. The Tribunal’s error was in identifying the particular act of domestic violence and assessing the seriousness of that incident of domestic violence.

51    As the plurality said in LPDT at [34], “the Tribunal regarded the consideration [in para 8.1.1(1)(g)] as directly relevant when there was no evidence before the Tribunal showing that it did apply”. The error of the Tribunal in LPDT was identifying mandatory considerations as relevant to its exercise of discretion where those considerations were not relevant. Further, the Tribunal in LPDT had made three errors in construing the Direction.

52    In assessing materiality, I cannot “attempt to discern how the Tribunal would have reasoned if it had not departed from the required process of reasoning”: LPDT at [36]. However, the Tribunal’s error only went to the weight to be given to Primary Consideration 2 not whether the consideration was relevant at all. This makes the Tribunal’s error very different to the errors of the Tribunal in LPDT.

53    Had the Tribunal in this case simply accepted the applicant’s admission that he either kicked AW in the tummy or the mouth, rather than finding that he kicked his pregnant partner in the tummy, the Tribunal would still have been entitled to find that para 8.2 was relevant to the exercise of its discretion and given it some weight. The Tribunal’s assessment at [82] that the primary consideration of “family violence weigh[s] in favour of not revoking the cancellation” would have applied had it not made the error. It may have given it lesser weight, but it cannot have given it no weight at all.

54    The Tribunal found that there had been one act of domestic violence, being the domestic violence the subject of the protection order. In relation to that act of domestic violence, the Tribunal stated:

I take into account that this was an isolated event and that he has expressed appropriate remorse for his conduct. He appears to have insight into the harm that is caused by domestic violence. Nevertheless, the Government has serious concerns about those who engage in family violence, and I consider that this is a factor that weighs against revoking the cancellation decision. I give less weight to it because it was an isolated incident and he accepted responsibility and understood the impact of his behaviour.

(Emphasis added.)

55    Given the violence towards women conceded by the applicant as set out above and the applicant’s admission to the Tribunal that he kicked AW, I consider that the possibility that the Tribunal would have reached a more favourable conclusion than it did (as bolded above) with respect to Primary Consideration 2 is improbable and bordering on fanciful.

56    The Tribunal found that Primary Consideration 1 (protection of the Australian community) weighed “heavily” in favour of non-revocation (at [39]) and Primary Consideration 2 was given an unspecified, but lesser, weight. Had the Tribunal not erred, Primary Consideration 2 would still have been given weight but a weight that was lesser than Primary Consideration 1.

57    Therefore, I do not consider that there was a “realistic possibility” that the Tribunal’s decision “could have been different if the error had not occurred”: LPDT at [7].

Ground Two

58    Ground Two has two limbs.

59    The second limb is that the Tribunal erred in its consideration of the seriousness of family violence by unreasonably conflating different alleged incidents of family violence. That limb essentially repeats Ground One and should be dismissed for the same reasons.

60    The first limb of Ground Two, which does fall for consideration, is that the Tribunal failed to consider one of the four factors identified in para 8.2(3) of the Direction, namely, the applicant’s efforts at rehabilitation.

61    Paragraph 8.2(3) of the Direction provides:

(3) In considering the seriousness of the family violence engaged in by the noncitizen, the following factors must be considered where relevant:

…

(c) rehabilitation achieved at time of decision since the person’s last known act of family violence, including:

(i) the extent to which the person accepts responsibility for their family violence related conduct;

(ii) the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);

(iii) efforts to address factors which contributed to their conduct; and

62    The applicant contends that while the Tribunal referred to evidence that linked the applicant’s family violence to his drug and alcohol use, it failed to consider the fact that the applicant had completed a substance abuse program, interpersonal relationships program and a high intensity violence intervention program while in custody.

63    These rehabilitation efforts were explicitly recognised by the Tribunal earlier in its reasons at [32] in the context of considering the applicant’s likelihood of further criminal conduct pursuant to para 8.1.2(2)(b) of the Direction. However, the Tribunal concluded that these programs were not effective because the applicant continued to engage in violent, criminal offending after completing these programs.

64    This limb of Ground Two must fail. The Tribunal undeniably considered the factors in para 8.2(3)(c). The Tribunal said at [42] that it took into account that the applicant “has expressed remorse for his conduct” and “appears to have insight into the harm that is caused by domestic violence”.

65    I do not consider that the Tribunal overlooked subpara (iii) “efforts to address factors which contributed to their conduct”. The better inference is that the Tribunal did not consider the rehabilitation programs undertaken in custody to be material to the applicant’s efforts to address his past family violence and therefore did not address it: see Matthews v Minister for Home Affairs [2020] FCAFC 146 at [36], [53] (per Middleton, Perry and O’Bryan JJ). That is for two reasons. First, the Tribunal had already concluded earlier in its reason that these programs were ineffective at reforming the applicant’s violent behaviour and therefore it can be inferred that they would have been ineffective at reforming his violent behaviour towards women. Second, given that the Tribunal only found a single, isolated incident of domestic violence that occurred 14 years before the date of the Tribunal’s decision, there was no obvious reason why the factors that contributed to the applicant’s criminal offending also contributed to him engaging in family violence.

66    Ground Two therefore must be dismissed.

Ground Three

67    Ground Three concerns para 8.2.(2)(b) of the Direction which provides:

(2) This consideration is relevant in circumstances where:

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

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

68    The applicant says that the Tribunal is ordinarily obliged to afford non-citizens procedural fairness when applying the Direction. Therefore, the inclusion of a further procedural fairness requirement in para 8.2(2)(b) must have some work to do. The applicant contends that para 8.2(2)(b) means that the non-citizen must have been afforded procedural fairness by the “independent and authoritative source” that provided evidence or information which the Tribunal intends to rely upon. In this case, that required the Tribunal to consider whether the applicant had been afforded procedural fairness by the Magistrates Court of Queensland when it made the protection order in 2009. There is no dispute that the Tribunal did not consider whether procedural fairness had been afforded by the Magistrates Court.

69    I agree with the applicant that the “Minister’s inclusion of a specific procedural fairness requirement in one aspect of the Direction indicates that para 8.2(2)(b) requires something more or something different than usual procedural fairness in the s 501/501CA decision”. However, that “something more” simply requires that the applicant be given a specific opportunity by the Tribunal to respond to the information or evidence from an “independent or authoritative source” that they perpetrated family violence. It makes sense to specify that an applicant must be given an opportunity to respond to the information or evidence in subpara (b) of para 8.2(2) because those sources may not necessarily have afforded procedural fairness to the non-citizen in the way that the sources described in subpara (a) must (ie, a criminal court).

70    Further, the applicant’s construction is simply unworkable. How could the Tribunal assess whether the applicant was afforded procedural fairness by the Magistrates Court of Queensland in 2009? That may require evidence from the Magistrate themselves, the aggrieved person or the police officers who applied for the protection order. The Minister cannot have intended that para 8.2(2)(b) requires that the Tribunal conduct inquiries into whether certain bodies, including state courts, afforded procedural fairness to non-citizens in determining or collecting evidence that the non-citizen had engaged in family violence.

71    My construction of para 8.2(2)(b) is also consistent with Burley J’s understanding of that subparagraph in Aghbolagh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affair [2023] FCA 43. Burley J considered whether the Tribunal erred in relying upon “police material consisting of the records taken by members of the police force concerning complaints made to them by [the review applicant’s] wife concerning domestic violence”. His Honour observed at [46]:

The final words of para 8.2(2)(b) add an explicit requirement that the non-citizen being considered under ss 501 or 501CA has been afforded procedural fairness. No doubt this requirement has been included within the Direction to emphasise to decision makers that where information or evidence of the type set out in (b) is to be considered, procedural fairness must be given. There was (correctly, in my view) no suggestion on the part of the applicant that the content of the obligation of procedural fairness is any different or more onerous when arising under para 8.2(2)(b) than that ordinarily required by the authorities.

72    Burley J concluded that the applicant had been afforded procedural fairness because the applicant was cross-examined on the police materials in the Tribunal proceeding and “given the opportunity to make submissions about the Tribunal’s proposed reliance on these materials”: at [47].

73    Ground Three therefore cannot succeed.

Ground Four

74    Ground Four also cannot succeed.

75    Ground Four alleges that the Tribunal erred by misconstruing para 8.1.1(g) of the Direction in connection with its finding at [27] that the applicant “continued to offend despite a formal warning that his visa may be cancelled”.

76    The Tribunal at [22] referred to the applicant receiving a notice of intention to consider cancellation of his visa on 22 February 2012 (he also received a further notice on 10 July 2012). The Minister accepts that these notices do not constitute a formal warning of the specific kind referred to in para 8.1.1(g): “in writing, about the consequences of further offending in terms of the non-citizen’s migration status”.

77    The parties essentially disagree about whether it can be inferred from the Tribunal’s comment at [27] that it treated para 8.1.1(g) as a mandatory consideration. The applicant accepts that para 8.1.1(g) may be a permissible consideration even where it is not engaged as a mandatory relevant consideration but, in this case, the Tribunal wrongly found that it was engaged as a mandatory relevant consideration.

78    The applicant emphasised the structure of the Tribunal’s reasoning at [27]. The applicant says that [27] addresses the factors in para 8.1.1(c) to (g) of the Direction in sequence. I accept that the Tribunal has at [27] referred to, in order, the sentences imposed on the applicant (subpara (c)), frequency of offending (subpara (d)), cumulative effect of offending (subpara (e)) and formal warnings about reoffending (subpara (g)). Subparagraphs (b), (f) and (h) were simply not relevant on the facts of the case and therefore it makes sense they were not mentioned. Other than mentioning the applicant’s most recent offending at the end of the paragraph, the Tribunal does not have regard to any other consideration at [27] that is not required by para 8.1.1.

79    However, the Tribunal did not explicitly purport to apply each factor in para 8.1.1 nor did it state that it was bound by those factors as mandatory relevant considerations. Further, it is significant that, although the Tribunal used the words “formal warning”, it did not otherwise use the language of para 8.1.1(g).

80    Bromwich J relevantly said in BOE21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1429 at [11]:

None of factors (a) to (g) are exhaustive in the sense of being a closed universe of considerations going to the question of the nature and seriousness of a non-citizen’s conduct. Rather, they are a mandatory minimum set of considerations. In particular they do not preclude the Tribunal from having regard to similar considerations that fall short of any mandatory threshold, including any warning or awareness communicated to the applicant other than in writing about the risks to his migration status in reoffending. Not meeting the threshold for being a mandatory relevant consideration does not, and cannot, render something an irrelevant forbidden consideration.

81    It is also well settled that a reviewing Court should adopt a beneficial construction of an administrative decision-maker’s decision such that the “reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error”: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272 (per Brennan CJ, Toohey, McHugh and Gummow JJ).

82    On a beneficial construction of the Tribunal’s reasons at [27], I cannot be satisfied that the Tribunal was applying para 8.1.1(g) as a mandatory relevant consideration rather than simply “having regard to similar considerations that fall short of any mandatory threshold, including any warning or awareness communicated to the applicant other than in writing about the risks to his migration status in reoffending”: BOE21 at [11] (per Bromwich J).

83    Accordingly, Ground Four must fail.

CONCLUSION

84    For the reasons set out above, the applicant has failed to make out any of the four grounds of review. The application should therefore be dismissed, and the applicant be ordered to pay the Minister’s costs.

Associate:

Dated:    30 April 2024