Federal Court of Australia

Titoa v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 605

ORDERS

THE COURT ORDERS THAT:

1.    The amended originating application filed on 24 October 2023 be dismissed.

2.    The applicant pay the first respondent’s costs 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

MEAGHER J

introduction

1    The applicant is a 30-year-old man who is a citizen of New Zealand. He held a Class TY Subclass 444 Special Category visa upon moving to Australia on a permanent basis on 9 February 2004.

2    On 27 July 2021, the applicant was convicted of five counts of "Enter Premises And Commit Indictable Offence By Break" and one count of "Enter Premises with Intent to Commit Indictable Offence By Break" and was sentenced to two years imprisonment for each offence, to be served concurrently. Consequentially, on 7 September 2021, a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs cancelled the applicant’s visa pursuant to s 501(3A) of the Migration Act 1958 (Cth) as the applicant failed to pass the character test according to s 501(6)(a) of the Act by reason of being sentenced to a term of imprisonment for 12 months or more on a full-time basis (Delegate’s Decision).

3     On 4 October 2021, the applicant sought revocation of the Delegate’s Decision. On 30 March 2022, a delegate of the Minister decided not the revoke the Delegate’s Decision pursuant to s 501CA(4) of the Act (Cancellation Decision).

4     On 31 March 2022, the applicant sought review of the Cancellation Decision to the Administrative Appeals Tribunal. On 21 July 2022, the Tribunal affirmed the Cancellation Decision (Tribunal’s Decision).

5     On 31 August 2022, the applicant lodged an application for an extension of time pursuant to r 36.05 of the Federal Court Rules 2011 (Cth) to seek review of the Tribunal’s Decision.

6    An amended originating application was filed on 24 October 2023 which seeks review on the following grounds:

1.    The Second Respondent (the Tribunal) misconstrued its statutory task or constructively failed to exercise jurisdiction in failing to take into account as a primary consideration the best interests of minor children in Australia affected by the decision.

Particulars

(a)    The Tribunal was required, by force of s 499(2A) of the Migration Act 1958 (Cth) (the Act), to comply with the directions contained in Direction No. 90 - Visa refusal and cancellation under s 501 and revocation of a mandatory cancelation of a visa under s 501 CA (Direction No. 90).

(b)    Paragraph 8 of Direction No. 90 required the Tribunal to give primary consideration to the best interests of minor children in Australia affected by the decision: specifically, paragraph 8.3(1) of Direction No. 90 required the Tribunal to make a determination about whether non-revocation under section 501 CA of the Act is or is not. in the best interests of a child affected by the decision.

(c)    At paragraphs [95]-[97], the Tribunal identified 26 children whom it found were relevant to this consideration.

(d)    The Tribunal did not make a determination about whether non-revocation under s 501 CA of the Act was, or was not, in the best interests of the children it identified at J [95]-[97], and accordingly failed to comply with paragraph 8.3 of Direction No. 90 and failed to take into account the best interests of children in Australia affected by the decision as a primary consideration.

2.    Alternatively, to ground 1. the Tribunal misconstrued its statutory task or constructively failed to exercise jurisdiction in failing to give proper individual consideration to the best interests of a child in Australia affected by the decision.

Particulars

(a)    Paragraph 8.3(3) of Direction No. 90 requires that if there are two or more relevant children. the Tribunal is to give individual consideration to the best interests of each child to the extent that their interests may differ.

(b)    At J [95], the Tribunal identified EJ Palupe (EJ) as a child who was relevant to this consideration.

(c)    EJ's best interests differed from the other 25 children identified by the Tribunal.

(d)    The Tribunal did not give proper individual consideration to the best interests of EJ. to the extent that those interests differed from the other 25 children identified by the Tribunal. and accordingly failed to comply with paragraph 8.3(3) of Direction No. 90.

3.    The Tribunal's decision was vitiated by jurisdictional error because the Tribunal failed properly to balance the relevant considerations in Direction No. 90 in deciding whether or not to exercise the discretion under section 501CA of the Act.

7    At the hearing, the application for an extension of time was granted, reasons for which are provided below.

8    For the reasons that follow, the amended originating application is dismissed.

legislative scheme

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

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

11    In considering whether there is another reason why a mandatory visa cancellation should be revoked, Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction 90 or the Direction) commenced on 15 April 2021 pursuant to s 499 of the Act to guide decision-makers in performing functions under ss 501 and 501CA of the Act. The Direction provides four "Primary Considerations" and four "Other Considerations" which are to be taken into account when making a decision under s 501CA(4) of the Act.

12    The Primary Considerations include:

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

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

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

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

13    The Other Considerations include:

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

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

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

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

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

(b)    impact on Australian business interests.

tribunal’s decision

14    The hearing was held before the Tribunal on 22 June 2022, and was constituted by a Senior Member and a Member. As mentioned previously, the Tribunal affirmed the Cancellation Decision.

15    The Tribunal set out details of the applicant’s offending, which it found to be frequent and increasing in seriousness. It characterised the offending as “very serious”: TD[23]-[57]. The Tribunal considered that if the applicant were to reoffend, the nature of the harm to the “Australian community would be serious and would involve physical, psychological, and material harm to individual victims and/or the community at large, including, quite conceivably, harm to a catastrophic level”: TD[60]-[64].

16    As to the risk of the applicant engaging in further criminal or other serious conduct, the Tribunal found that much of the applicant’s offending took place as a result of abusing illicit substances, and that while he had expressed intentions to rehabilitate himself in that regard, he had not yet undertaken any meaningful steps to do so. In particular, the Tribunal found that the applicant had been untruthful about inter alia the extent to which he had used drugs in the periods leading up to his offending, and that much of his evidence about rehabilitation was “insincere” and exposed that he neither took responsibility for, nor demonstrated insight into, his offending. It also found that while the applicant claimed to be taking “active steps” to rehabilitate himself, that in fact amounted to nothing beyond discussing his need for help with his family. Therefore, the Tribunal considered the applicant to have “a presently serious, and unacceptably high recidivist risk”: TD[65]-[83].

17    The Tribunal concluded that Primary Consideration 1 weighed very heavily against revocation of the Cancellation Decision.

18    In relation to its consideration of Primary Consideration 3, the Tribunal identified four nieces and nephews aged under eighteen at the time of the Cancellation Decision and noted that the applicant referred to a further twenty-two “other” nieces and nephews about which he provided no details: TD[95]-[97]. No evidence was led, nor submissions made by the applicant regarding the “other” nieces and nephews. Accordingly, the Tribunal considered that they were relevant to Primary Consideration 3 but considered that it was unable to consider the extent of that relevance: TD[97]. The Tribunal set out the evidence provided by the applicant in relation to his relationship with his nieces and nephews at TD[98]-[99], including that:

    He “was a strong male role model to them;”

    He would “regularly care” for some while the parents were working;

    He “was and is a significant father figure;”

    He provides “invaluable emotional and physical support;”

    He provides “great assistance” to the parents of one of his nephews who has autism, “EJ;”

    His nieces and nephews “are an integral and meaningful part of his life;”

    He provides “a vital and meaningful aspect of their lives and development;” and

    He would “regularly participate in [his] nieces and nephews’ activities.”

19    The applicant considered that significant weight should be afforded to Primary Consideration 3: TD[103].

20    The Tribunal set out the Minister’s contentions, including that the applicant “does not have a parental relationship” with the children, which is fulfilled by other people in their lives, and characterised the relationship between the applicant and the children as “avuncular.” While the Respondent’s Statement of Facts Issues and Contentions submitted that very limited weight should be afforded to Primary Consideration 3, at the hearing, that position changed to acknowledge that “some particular weight” ought to be afforded to the interests of EJ on the basis of his diagnosis (of autism): TD[101]-[102].

21    The Tribunal set out the oral evidence given by the applicant, noting that particular focus was placed on his relationship with EJ and little or no focus was placed on the other children: TD[104]-[106]. The Tribunal then set out the evidence of the other witnesses in support of the applicant’s contentions regarding Primary Consideration 3, including that of the applicant’s sisters, mother, brother-in-law, a nephew, and a niece: TD[107]-[121].

22    The Tribunal found first that the applicant did not have any biological children, and secondly that he did not have a primary parental or caregiving role for any of the children, concluding that the substance of his evidence did not convince the Tribunal that he was a “significant father figure” or “male role model” for the children: TD[122]. The Tribunal considered that the applicant had a “strong bond, and caring, loving relationship with his nieces and nephews” but ultimately characterised the relationship as “avuncular”: TD[123]. The Tribunal found that the children would “experience some adverse emotional (and potentially developmental/ psychological) effects as a result of their physical separation from their uncle,” however noted that he would be able to maintain electronic contact with the children as he had done during the period of his incarceration and detention: TD[126]. The Tribunal accepted that the four children identified by the applicant, including EJ, do not want to continue to be physically separated from the applicant: TD[129].

23    The Tribunal concluded its findings in relation to Primary Consideration 3 at TD[132]-[133] as follows:

We are of the view that the evidence around the best interests of the four children of Janice and Laauli Palupe (including EJ) and the twenty-two “other” nieces and nephews in Australia who would be affected by a non-revocation decision is not a particularly compelling feature of this case. We have found the relationship between the Applicant and the four children of Janice and Laauli Palupe is avuncular in nature, rather than parental. We have assumed, for the purposes of our written reasons and without any evidence to the contrary, that the Applicant has an avuncular relationship with the twenty-two “other” nieces and nephews.

We have had regard to the relevant and applicable factors in paragraph 8.3 of the Direction as those factors relate to each of the relevant children captured by the auspices of this Primary Consideration 3. Having regard to the totality of the evidence and whatever cumulative strength can be found for that evidence upon application of the relevant subparagraphs in paragraph 8.3(4) of the Direction, we find that this Primary Consideration 3 weighs at best, moderately, but not determinatively in favour of revoking the decision to mandatorily cancel this Applicant’s visa.

24    The Tribunal found that Primary Consideration 4 weighed very heavily against revocation of the Cancellation Decision. It found that although the Australian community would have a higher than usual tolerance towards the applicant’s criminal offending by reason of his lengthy stay in Australia and because he held a permanent visa, the community would expect that visa to be cancelled. This is because of the applicant’s repeated breaches of the expectations of the Australian community, and that his criminal offending included a violent serious offence against a woman, in this case a police officer and therefore a government representative: TD[134]-[145].

25    In relation to Other Consideration 2, the Tribunal set out the applicant’s written and oral submissions which included that he would be without family support if removed from Australia, and detailed the health issues from which he suffers: TD[148]-[154]. The Tribunal considered that the applicant’s health issues were “satisfactorily under ongoing remedial management and control” and that he could be “adequately managed” if he were to reside in New Zealand: TD[158]. The Tribunal found that the applicant would not face any substantial language or cultural barriers if he were removed to New Zealand, and that the same level of healthcare would be available to him in New Zealand: TD[159]-[160]. The Tribunal concluded that Other Consideration 2 weighed moderately, but not determinately in favour of revoking the Cancellation Decision.

26    The Tribunal attributed moderate, but not determinative weight in favour of revoking the Cancellation Decision in relation to Other Consideration 4, finding that the applicant had a close-knit family that resided in Australia but that did not prevent him from offending: TD[172]-[175]. The Tribunal found that the applicant had a very limited employment history in Australia and made no voluntary contributions: TD[179] – [181].

27    Primary Consideration 2, Other Consideration 1 and Other Consideration 3 were afforded neutral weight as they were not relevant to the determination of the application.

28    The Tribunal concluded at [188]:

In considering whether there is another reason to exercise the discretion afforded by s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, we have had regard to the considerations referred to in the Direction. We find as follows:

•    Primary Consideration 1: carries a very heavy level of weight against revocation;

•    Primary Consideration 2: is of neutral weight;

•    Primary Consideration 3: weighs, at best, moderately, but not determinatively, in favour of revocation;

•    Primary Consideration 4: carries a very heavy level of weight, against revocation;

•    We have outlined the weight attributable to the Other Considerations. We are of the view (and we find) that the combined weights we have allocated to each of Primary Considerations 1 and 4 are sufficient to determinatively outweigh the combined weight we have allocated to Primary Consideration 3 and Other Considerations (b) and (d), respectively;

•    A holistic view of the considerations in the Direction therefore favours the non-revocation of the decision to cancel the Applicant’s visa.

(Emphasis in original)

extension of time

29    The Tribunal’s Decision was handed down on 21 July 2022, and the applicant filed his application for an extension of time on 31 August 2022. According to s 477A(1) of the Act, an application for review of a migration decision to this Court must be made within 35 days of the date the decision is made. Pursuant to s 477A(2), the Court may extend that 35 day period if it is satisfied that it is necessary in the interests of the administration of justice to do so.

30    In considering whether the Court ought exercise a discretion to extend the 35-day time limit, the Court looks at the extent of the delay, the explanation provided for the delay, whether any prejudice would be occasioned to the respondent if an extension were granted, and the merit of the proposed grounds of review: Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344; [1984] FCA 176 at [18]–[23].

31    When considering the merit in the proposed grounds of review, the Court is concerned with whether the grounds are merely arguable, as opposed to whether they might succeed or not: MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585; [2015] FCA 1391 at [63] (Mortimer J, as her Honour then was). While a strong case weighs heavily in favour of granting an extension of time, a weak but arguable case does not weigh against the grant of an extension: SZUTY v Minister for Immigration and Border Protection (No 2) [2016] FCA 289 at [53]-[55] (Katzmann J) citing Seiler v Minister for Immigration, Local Government and Ethnic Affairs (1994) 48 FCR 83 at 98 (French J).

32    In this matter, the Minister has rightly conceded that it is in the administration of justice to grant an extension of time. The delay is minimal, and the Minister is not prejudiced by the delay. The applicant's explanation for the delay includes that he has limited English language skills and access to limited resources while in detention, therefore there was a delay in obtaining legal representation to assist with the filing of the application. Furthermore, the grounds of review proposed by the applicant are sufficiently arguable to warrant an extension of time to being granted.

consideration

Ground One

33    By Ground One, the applicant contended that the Tribunal failed to make a determination as to whether revocation of the visa cancellation was in the best interests of minor children in Australia, thereby erring in its consideration of Primary Consideration 3.

34    Paragraph 8.3 of Direction 90 provides guidance for consideration of Primary Consideration 3:

(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.

35    It has been established that the Tribunal must actually make a determination as to whether or not revocation of the cancellation decision is or is not in the best interest of the children, either expressly or impliedly: Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 285 FCR 187 at [180], citing Spruill v Minister for Immigration and Citizenship [2012] FCA 1401 at [18].

36    After setting out the relevant paragraphs of the Direction and the evidence before it, the Tribunal turned its mind to each of the sub-paragraphs in 8.3(4) of the Direction. In relation to sub-paragraphs (a), (d) and (f), the Tribunal found that each "militates slightly in favour of a finding that it is in the best interest of the [children] for the Applicant's visa status to remain in Australia being restored to him": T[122], [126], [129]. Each of the remaining sub-paragraphs were attributed neutral weight as they were not relevant to the matter. As extracted above, the Tribunal then found at [132]-[133] that the evidence in relation to Primary Consideration 3 was "not a particularly compelling feature of this case" given the nature of the relationship between the children and applicant is avuncular in nature, before concluding that it weighed "moderately, but not determinatively" in favour of revoking the cancellation decision "having regard to the totality of the evidence and whatever cumulative strength can be found for the evidence".

37    The applicant's submission is two-fold. First, the applicant submitted that at no point did the Tribunal actually make any express determination about whether or not revocation of the cancellation decision was in the best interest of the children, only going so far as to say that it militated "slightly in favour of a finding" that it was in the best interests of the children that the visa cancellation be revoked. Further, even in its conclusionary paragraphs at [132]-[133] no positive determination was made either way. Therefore, the applicant submitted that the Tribunal failed to make a determination, relying on YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 at [34].

38    Second, the applicant submitted that even on a fair reading of the Tribunal's Decision, one cannot reach the conclusion that even an implied determination as to the best interests of children was made. Instead, the Tribunal only considered the weight that it would attribute to Primary Consideration 3 without making a determination either way, and the fact that no express finding was made suggests a conclusion was not reached, relying on Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160 at [76] and Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1368 at [26]-[27].

39    The Minister submitted that on a full reading of the Tribunal's consideration of Primary Consideration 3, the Tribunal performed the statutory task required of it. Specifically, the Minister considered that the Tribunal's consideration at [123], [126], [127] and [129] demonstrate that the Tribunal was directing itself to the determination it was required to make, and to the extent that the Tribunal failed to sufficiently express its determination in the reasons, it can at least be implicitly read from the reasons.

40    The Minister submitted that Mailau v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 610 is analogous as that matter involved a similar complaint about the failure to make a determination in relation to the best interests of minor children. In that matter, the Court rejected the applicant's argument as it considered that when reading the entirety of the Tribunal's reasoning and the manner in which the case was presented to the Tribunal, including that the best interests of the children were not diverged on the evidence before the Tribunal, the Tribunal's appropriately addressed the best interests of the minor children.

41    However, in Mailau, it is clear that the Tribunal made findings regarding the best interests of children and attributed weight accordingly throughout its consideration of paragraph 8.3(4) of Direction 90, before concluding that the cumulative best interests of the minor children weighed strongly in favour of revocation of the visa cancellation by reference to a number of factors expressed by the Tribunal: [19]-[20]. In this case, while the Tribunal stated that the consideration militated slightly in favour of a finding that it is in the best interests of the children that the visa cancellation be revoked, it did not actually come to a definitive conclusion. This is an important distinction because at no point in its decision does the Tribunal state whether or not it is in the children's best interests that the applicant's visa cancellation be revoked. There is no doubt that the Tribunal undertook a detailed consideration of the evidence before it, however, I am not satisfied that a determination was actually made.

42    Further, I have difficulty in accepting that a determination was implicitly made. One might accept that the Tribunal was satisfied that it was in the children’s best interests that the visa cancellation decision be revoked by its attribution of "moderate" weight in favour of revocation, however such weight attribution does little to assist in implicitly gleaning how or why the Tribunal might have determined that. Merely providing the weight attributed to the primary consideration, and stating this conclusion was reached having "regard to the relevant and applicable factors in paragraph 8.3 of the Direction" does little to assist. I am satisfied that the Tribunal therefore erred in that regard.

43    Consideration must be had therefore as to whether such error was material. Since the hearing of this matter, the High Court handed down its decision in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12 which set out the applicable principles in relation to the requirement of materiality. An error will be material if 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]; MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506 at 524 (Kiefel CJ, Gageler, Keane and Gleeson JJ). The applicant submitted that the error was material as had the Tribunal made an actual determination regarding the best interests of minor children, such a determination could have led the Tribunal to find that Primary Consideration 3 weighed more heavily in favour of revocation of the visa cancellation which may have impacted its ultimate conclusion.

44    As correctly submitted by the Minister, while the bar is low, to establish that an error is material, more than mere speculation is required: PQSM v Minister for Home Affairs (2020) 279 FCR 175 at [155]. In LPDT, the High Court elaborated on what is required to be established to meet the threshold of materiality. At [14] and [16], the plurality (with whom Beech-Jones J agreed) stated:

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.

…

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).

(footnotes omitted)

45    I have accepted that the Tribunal thoroughly reviewed the evidence before it and undertook a detailed analysis of Primary Consideration 3. While I also accept that the Tribunal failed to make an actual determination as to the best interests of the minor children, I do not accept that such a determination could realistically have changed the Tribunal's evaluation. As previously stated, the Tribunal, though failing to make an actual determination, undertook a detailed analysis of the evidence and the relevant consideration. From the face of the Tribunal’s reasons, in my view, the possibility of the decision being different had the error not been made is improbable.

46    Accordingly, ground one does not succeed.

Ground Two

47    Ground two is similar to ground one in that it contends that the Tribunal erred by misconstruing its statutory task or constructively failed to exercise its jurisdiction in failing to give individual consideration to the best interests of the children affected by the cancellation decision. Specifically, the applicant contends that the Tribunal failed to acknowledge that the best interests of EJ differ from the best interests of the other children, and therefore did not give individual consideration to how the best interests of that child might differ.

48    The applicant specified that the following evidence which was before the Tribunal demonstrate that the best interests of EJ differed from those of the other children:

    The applicant would reside with his sister if he was released from detention, and his sister is the mother of EJ;

    EJ was named after the applicant, and their bond is "beyond amazing";

    EJ is diagnosed with autism and having the applicant around helped EJ's communication and assisted his learning of their culture; and

    EJ was able to be taken to special events such as birthdays when the applicant was around as he was comfortable with the applicant.

49    The applicant pressed four submissions in that regard. First, the Tribunal ought to have taken into account the fact that the applicant would be residing with his sister and therefore EJ, as the evidence suggested that the applicant assisted with EJ's communication and activities. Second, the Tribunal grouped the children in considering Primary Consideration 3 and occasionally emphasised the needs of EJ but made no reference to how EJ's interest differed from those of the other children. Third, in its conclusion at [132]-[133], the Tribunal referred to all the children collectively and made no differentiation in regard to EJ's interest. Fourth, the Minister conceded at the hearing before the Tribunal that "some particular weight" should be attributed to EJ's interests, and while the Tribunal recognised this at [102], there was no reference to this in its findings or actual weight determination. Therefore, the applicant submitted that the Tribunal failed to distinctly consider EJ's interests and failing to do so amounted to error.

50    The Minister submitted, and I accept, that the Tribunal gave specific and comprehensive consideration to EJ's interests. So much so is evident from reading the Tribunal's reasoning with respect to Primary Consideration 3. The applicant's contention that the Tribunal failed to take into account the fact that the applicant would be residing with his sister and therefore EJ is difficult to accept when one takes into account how the applicant's case was run before the Tribunal. At the hearing, the only discussion about where the applicant might reside if he was released from detention was in the context of determining Primary Consideration 1, and specifically the risk of recidivism. Even when the applicant gave evidence in this regard, no emphasis, or any comment at all was made regarding EJ and how or why residing with EJ was in his best interests.

51    Therefore, ground two does not succeed.

Ground Three

52    Ground three concerns the Tribunal's conclusion at [188] and that the Tribunal failed to properly balance the considerations required under Direction 90.

53    The applicant submitted that the Tribunal attributed a formulaic equation to the weighing exercise of the considerations under the Direction, by individually evaluating each consideration, attributing a specific weight to each consideration, and then applied an "aggregated calculation" to each of the individual considerations to reach a conclusion. The applicant submitted therefore that the Tribunal failed to properly evaluate the considerations, and its comments in the last two bullet points of paragraph [188] do not assist in demonstrating how the Tribunal reached its ultimate conclusion that the visa cancellation should not be revoked.

54    The applicant relied on the decision of CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138 which recently considered the manner in which the Tribunal evaluated the considerations under Direction 90. In that case, the Tribunal attributed certain weight to each of the other considerations, and then under the heading "CONCLUSION" attributed certain weight to each of the primary considerations before determining the direction favoured non-revocation of the visa cancellation: at [24]. At [28], the Full Court observed how compliance with Direction 90 is met:

In consequence, compliance with the Direction is not achieved by focussing upon individual considerations and attributing some form of “weight” to that consideration viewed in isolation. The real burden of the task to be undertaken by a decision-maker who must comply with the Direction is to bring together the considerations as part of a single evaluation of their relative significance thereby weighing them all together. A task of that kind cannot be performed by fragmenting the consideration into an evaluation of individual considerations, attributing to each of them some form of individual abstract term purporting to be a measure of their significance, and then aggregating by some form of calculus each of those individual assessments. To undertake the task in that manner is not to comply with the Direction.

55    The Full Court found that the Tribunal failed to properly balance the relevant considerations in deciding whether or not to revoke the visa cancellation, relevantly considering the following at [38] and [43]-[44]:

The primary judge rightly described the Tribunal’s reasons in this regard as perfunctory. They can also be described as formulaic. They do not disclose that there was any process by which the Tribunal grappled with the competing considerations, each of which had been ascribed a different descriptor of weight and some of which had the status of being “primary” considerations and others not, in order to bring them to bear in forming a state of satisfaction as to whether there was “another reason” to revoke the cancellation. The statutory task is not fulfilled by ascribing a descriptor of weight, such as “strong,” “significant,” “considerable” or “moderate” (in favour of or against revocation) to the different considerations, primary and other, and then stating a conclusion as if that conclusion was made inevitable by the application of a mathematical formula.

…

However, there is nothing in the concluding section of the Tribunal’s reasons, or indeed anywhere, which reveals any process of balancing and evaluation. Nor is there anything which demonstrates that in reaching its ultimate conclusion, the Tribunal brought to bear its assessment of the weight of the various “other considerations.” After summarising, and rephrasing, its earlier ascription of descriptors of weight to each of the primary considerations, the Tribunal then simply concluded in paragraphs [114] and [115] by use of the words “therefore” and “consequently” that the visa cancellation should not be revoked. Such a conclusion does not inevitably or necessarily follow from those unexplained, un-balanced and un-weighed descriptors of weight; it may be that such a conclusion is justified by what preceded it, but it is not apparent that the Tribunal undertook the required process of evaluation in order to reach its decision. It is not even apparent that the Tribunal considered that the weight of all the primary considerations were compelling against revocation of the cancellation of the visa, since it placed “significant weight” on one of those considerations, the interests of minor children, as favouring revocation.

The Minister submits that the Tribunal undertook the required task of balancing and evaluation by asking the rhetorical question, “What did the Tribunal do in reaching its conclusion not to revoke the cancellation of the visa if not an evaluation and balancing of the various factors to which it had ascribed weight in order to undertake exactly that task?” There is no obvious or necessary answer to that rhetorical question, which therefore deprives it of any rhetorical force. The Tribunal must be taken at its word. What it did, on the face of its reasons, is ascribe weight to the various considerations having considered each in isolation and then express a conclusion without demonstrating that it actually weighed the various considerations against each other and undertook a proper evaluation of whether there was indeed “another reason” why the cancellation should be revoked. That amounts to a failure to undertake the statutory task.

56    The applicant submitted that this matter is analogous to CRNL, in that the Tribunal took a formulaic approach in determining whether or not revocation of the visa cancellation ought occur rather than properly evaluating the considerations.

57    CRNL was recently applied in PGDX v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 1259, in which the Court distinguished CRNL at [39]-[40] on the following basis:

The observations of the Full Court were made in the context of reasons for decision which ascribed “significant weight” to the best interests of the non-citizen’s children to have the cancellation order revoked and found that the other primary considerations weighed “heavily” or “very heavily against revocation.” The Tribunal had also found that two of the other considerations were of “moderate weight supporting revocation.” The Tribunal concluded that “the Application of the Direction therefore favours the non-revocation of the cancellation of the Applicant’s visa.” In those circumstances, the Full Court could not find in the Tribunal’s reasons any balancing of the considerations in favour of revocation against those which did not support a revocation of the cancellation.

That is not this case. The Tribunal here found that three of the primary considerations weighed substantially against revocation and these “considerably outweigh[ed]” the combined weight given to the primary consideration in favour of revocation. This was not the result of a mathematical calculus but the result of the Tribunal ascribing less weight to the primary consideration of the best interests of the Applicant’s minor child in Australia and to the other countervailing considerations. The Tribunal explained why it ascribed less weight to those considerations in the course of its reasons.

58    The Minister submitted that CRNL is distinguishable in the same manner that was described in PGDX, namely that in CRNL no express evaluation of the considerations was undertaken, whereas in this matter the Tribunal expressed its evaluation in the last two bullet points of paragraph [188]. The Tribunal weighed the considerations against each other, and the reasons for that weighting being provided throughout its decision. Despite my finding with regard to Primary Consideration 3, I am not satisfied that this had any material impact on the Tribunal's conclusion at [188]. The Tribunal was aware of the task it was required to undertake and set it out at paragraph [16]. On a fair reading of the Tribunal's Decision, I am not satisfied that the Tribunal failed to undertake a proper evaluative exercise of balancing the considerations when forming its conclusion.

59    Ground three does not succeed.

conclusion

60    It is for those reasons that the application must be dismissed. The applicant should pay the Minister’s costs to be taxed if not agreed.

61    I thank pro-bono counsel for their assistance to the applicant and this Court.

Associate:

Dated:    10 June 2024