Federal Court of Australia

Lasalo v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 790

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed with costs.

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

REASONS FOR JUDGMENT

SHARIFF J:

A.    INTRODUCTION

1    This is an application for judicial review under s 39B of the Judiciary Act 1903 (Cth) (the Judiciary Act) and s 476A of the Migration Act 1958 (Cth) (the Act).

2    The applicant was born in Tonga in 1980. He moved to Australia at the age of four in 1984. He has departed and returned to Australia on multiple occasions, but has otherwise lived in Australia since the age of four. At the time of the cancellation of his visa, the applicant held a Class BB Subclass 155 Five Year Resident Return Visa (the visa) which permitted him to live in Australia permanently while remaining a citizen of Tonga.

3    On 1 June 2021, the applicant was convicted of one count of assault occasioning actually bodily harm (domestic violence), two counts of common assault (domestic violence) and three counts of contravene prohibition/restriction in AVO (Domestic) and sentenced to an aggregate term of imprisonment of twelve months, with a non-parole period of five months which was upheld on appeal. The applicant spent five months incarcerated at the Silverwater and Manus Correctional Centres. Thereafter he was detained at Villawood Immigration Detention Centre until December 2022 when he was released following the decision of the Full Court in Pearson v Minister for Home Affairs [2022] FCAFC 203; (2022) 295 FCR 177.

4    On 10 August 2021, the applicant was notified that a delegate of the first respondent (the Minister) had decided to cancel his visa pursuant to the mandatory provisions under s 501(3A) of the Act on the basis that he did not satisfy the “character test” due to his substantial criminal record (the Cancellation Decision). The applicant made representations seeking a revocation of that decision.

5    On 18 August 2022, under s 501CA(4) of the Act, a delegate of the Minister decided not to revoke the Cancellation Decision on the basis that there was not “another reason” why the Cancellation Decision should be revoked (the Non-Revocation Decision). On 22 August 2022, the applicant applied to the Tribunal for a review of that decision.

6    The hearing of that application took place on 26 October 2022. The applicant was legally represented at the hearing and filed a statement of facts, issues and contentions (ASFIC). The Minister was also legally represented at the hearing and also filed a statement of facts, issues and contentions (MSFIC). Evidence was given by the applicant, two of his daughters and a former colleague.

7    On 9 November 2022 the Tribunal affirmed the Non-Revocation Decision: see Lasalo v Minister for Immigration, Citizenship and Multicultural Affairs [2022] AATA 4018 (AAT).

8    On 21 December 2022, the applicant filed the present application for judicial review of the Tribunal’s decision. On 10 November 2023, a Registrar of this Court made a determination that the applicant be referred for pro bono legal assistance. Upon receiving such assistance, the applicant filed an amended application on 12 February 2023.

9    As a number of the applicant’s amended grounds of review raised constitutional issues, the applicant was required to give notice of a constitutional matter to the Attorneys-General of the Commonwealth and each of the States and Territories under s 78B of the Judiciary Act. Such notice was given by the applicant in accordance with the requirements of that section, and each of the Attorneys-General indicated that they did not intend to intervene in the proceedings.

10    I heard the application for judicial review on 7 May 2024. At the hearing, the applicant sought leave to rely upon a proposed further amended originating application (FAOA). The Minister did not oppose the granting of such leave and I granted leave to the applicant to rely upon the FAOA. Both parties filed written submissions and made oral submissions addressing the grounds raised in the FAOA.

11    The grounds of review upon which the applicant relied may be summarised as follows:

(a)    Ground 1: that Direction No 90 — Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction 90) exceeded the Minister’s power under s 499 of the Act, limited by Ch III of the Constitution, by directing or authorising the Tribunal to adjudicate and punish prior criminal conduct in circumstances where the prior criminal conduct amounted to “family violence”;

(b)    Ground 2: that the decision of the Tribunal adjudicated and punished prior criminal conduct of the applicant so that the cancellation of the applicant’s visa and subsequent deportation of the applicant would amount to re-punishment of conduct for which the applicant has already been punished and which is prohibited by Ch III of the Constitution;

(c)    Ground 3: this ground alleged that the Tribunal’s decision was legally unreasonable, but was not pressed by the applicant;

(d)    Ground 4: that, at AAT [61], the Tribunal asked itself the wrong question and/or erred in applying Direction 90 by stating that crimes of family violence are to be regarded by the Australian government as matters of “exceptional” seriousness as opposed to being taken “very seriously”; and

(e)    Ground 5: that, when considering the best interests of the minor children affected by the Tribunal’s decision, the Tribunal failed to consider:

(i)    mandatory considerations at sub-paragraphs 8.3(4)(a), (b) and (c) of Direction 90;

(ii)    relevant, material information before the Tribunal regarding the best interests of the children generally and in particular to support the mandatory considerations in sub-paragraphs 8.3(4)(a), (b) and (c);

(iii)    an application made by the applicant’s former partner, to vary or revoke an apprehended violence order (AVO).

12    For the reasons which follow, the application should be dismissed with costs.

B.    THE TRIBUNAL’S DECISION

13    Before turning to each of the grounds advanced by the applicant, it is convenient to briefly set out the Tribunal’s reasons.

14    The Tribunal set out relevant background facts, including the applicant’s offending history, at AAT [1]-[38], and provided a brief overview of the relevant legislative scheme at AAT [39]-[51].

15    At AAT [53], the Tribunal noted that it was not in dispute before the Tribunal that the applicant did not pass the character test, and consequently the only issue before it was whether there was another reason why the Cancellation Decision should be revoked. The Tribunal set out the contents of Direction 90 at AAT [56]ff, noting at AAT [63] that the Tribunal was obliged to consider each of the relevant primary and other considerations, but that it was for the Tribunal itself to assess the weight which should be given to each criterion.

16    The Tribunal proceeded to consider each of the relevant primary considerations (namely, the protection of the Australian community, family violence, best interests of minor children and expectations of the Australian community) at AAT [68]-[121]. It considered relevant other considerations (namely, the extent of impediments if removed, impact on victims, and links to the Australian community) at AAT [122]-[167].

17    At AAT [168], the Tribunal summarised the weight it ascribed to each consideration, finding that:

(a)    protection of the Australian community weighed significantly against the applicant;

(b)    family violence considerations weighed significantly against the applicant;

(c)    the best interests of minor children weighed moderately in favour of the applicant;

(d)    expectations of the Australian community weighed significantly against the applicant;

(e)    non-refoulement obligations weighed neutrally in relation to the applicant;

(f)    the extent of impediments if removed weighed significantly in favour of the applicant;

(g)    the impact on victims weighed neutrally in relation to the applicant; and

(h)    the applicant’s links to the Australian community weighed significantly in favour of the applicant.

18    At AAT [169]-[170], the Tribunal concluded that primary considerations should generally be given greater weight than other considerations, and, in that regard, the calculus was “clearly” and “significantly” against the applicant. At AAT [173], the Tribunal concluded that there was not another reason for the Cancellation Decision to be revoked and affirmed the Non-Revocation Decision.

C.    GROUND 1

C.1    Overview

19    This ground raises the question of whether Direction 90 exceeded the power of the Minister to issue directions under s 499 of the Act.

20    The applicant contended that the Executive’s choice to elevate and isolate conduct constituting family violence to a primary consideration in substance directed, or at least permitted or authorised, punishment of the applicant in contravention of the principle enunciated by the High Court in Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at 27 (Brennan, Deane and Dawson JJ; Mason CJ agreeing at 10)—namely, that the adjudgment and punishment of criminal guilt is an exclusively judicial function. (See also NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37; 97 ALJR 1005 at [28]).

21    In support of this contention, the applicant submitted that:

(a)    paragraph 8(2) of Direction 90 elevated and isolated one category of prior criminal conduct—conduct constituting family violence—as a primary consideration;

(b)    by elevating and isolating only that conduct, it required a decision-maker to treat family violence as being of greater or more serious concern to the Australian public than other objectively more serious criminal conduct;

(c)    in seeking to so elevate and isolate only this category of prior conduct, Direction 90 did not make provision for a suitable “safeguard” or “counterbalance” to require consideration of its impact on a non-alien non-citizen (or a person possessing non-alien characteristics).

22    The applicant developed these contentions by relying upon Love v Commonwealth; Thoms v Commonwealth [2020] HCA 3; (2020) 270 CLR 152. The applicant drew upon what was described as the recent “decoupling by a majority of the High Court of the constitutional meaning of ‘alien’ and the statutory meaning of non-citizen under the Act”: Love at [57]-[62] (Bell J), [245]-[253] (Nettle J), [302]-[330], [374] (Gordon J) and [391]-[395], [399]-[409] (Edelman J). The applicant accepted that he is a non-citizen for the purposes of the Act, but did not accept that he is an alien for the purposes of the Constitution. The applicant submitted that while the limitation held to apply to s 51(xix) of the Constitution in Love was limited in its application to Aboriginal non-alien non-citizens, a similar limitation is appropriate when a decision of the Executive would “banish” from Australia a non-citizen who has grown up, been educated, has raised and is raising several minor children in Australia, and who owes no allegiance to another country. The applicant contended that in those circumstances, the non-citizen’s claims must be assessed as if he is a non-alien, or at least squarely recognise his non-alien characteristics. It was submitted that if this status is not squarely acknowledged in Executive conduct or decision-making which leads to “banishment”, then the purpose of the impugned policy or decision should be assumed to be punitive, and, thereby, in contravention of the Lim principle.

23    Relying upon these arguments, the applicant’s central contention was that Direction 90 exceeded the power conferred upon the Minister under s 499 in that the Direction is punitive in its substantive or practical operation for a person who is a non-alien non-citizen (or who possesses non-alien characteristics) who has engaged in family violence. Put another way, it was submitted that Direction 90 did not sufficiently entrench and promote structural protection against arbitrary executive punishment for a non-alien non-citizen who has engaged in family violence. The applicant contended that, in those circumstances, the Court must assume that punishment of such persons was the purpose of the Direction, and that such a purpose was constitutionally impermissible and beyond power for the purposes of s 499 of the Act.

24    The Minister contended that acceptance of the applicant’s argument is foreclosed by the recent unanimous High Court decision in Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2; (2024) 98 ALJR 196. The Minister further submitted that the “decoupling” of the constitutional meaning of “alien” and the statutory meaning of non-citizen under the Act by the majority of the High Court in Love was limited to Aboriginal Australians because the concept of “alienage” was held to be inapt to describe the unique connection held by Aboriginal peoples to the land and waters of Australia. The Minister contended that nothing in the majority’s reasons in Love indicated that a similar decoupling was appropriate when considering the position of non-citizens who have a longstanding connection to Australia.

C.2    Consideration

25    The applicant’s contentions in support of Ground 1 proceed on two overlapping premises: first, that paragraphs 8(2) and 8.2 of Direction 90 were punitive in their substantive or practical operation in respect of non-citizens who have engaged in family violence; and second, that it has this effect in respect of a person such as the applicant who is to be properly characterised as a “non-alien non-citizen”. I do not accept either premise.

26    It is a fundamentally entrenched principle that the adjudgment and punishment of criminal guilt is a function that is “essentially and exclusively judicial in nature”: Lim at 27 (Brennan, Deane and Dawson JJ); Mason CJ generally agreeing at 10. A law of the Commonwealth will be invalid as offending Ch III of the Constitution if it confers on the Commonwealth Executive, or an officer of the Executive, any power to adjudge or punish, or to impose additional or further punishment, on persons convicted by Ch III courts: see Benbrika v Minister for Home Affairs [2023] HCA 33; (2023) 97 ALJR 899 at [41] (Kiefel CJ, Gageler, Gleeson and Jagot JJ).

27    However, the exercise of a power to cancel, or not renew, a visa by reference to the fact of previous criminal offending does not involve the imposition of a punishment for an offence and does not involve an exercise of judicial power: Falzon v Minister for Immigration and Border Protection [2018] HCA 2; (2018) 262 CLR 333at [47] (Kiefel CJ, Bell, Keane and Edelman JJ). In Falzon, the plurality (Kiefel CJ, Bell, Keane and Edelman JJ) stated at [47]-[48] that:

It has long been recognised that the deportation of aliens does not constitute punishment. The cancellation of a visa as a step necessary to achieve the removal of a person from Australia should be viewed in the same light. In Re Yates; Ex parte Walsh, Isaacs J drew a distinction between punishment for a crime and deportation as a political precaution carried out by the Executive. In O’Keefe v Calwell, Latham CJ referred to the deportation of a convicted immigrant as a measure of protection of the community and not as punishment for any offence.

The power to cancel a visa by reference to a person’s character, informed by their prior offending, is not inherently judicial in character. It operates on the status of the person deriving from their conviction. By selecting the objective facts of conviction and imprisonment, Parliament does not seek to impose an additional punishment.

(Footnotes omitted; emphasis added).

28    Further, as Gageler and Gordon JJ (with whom Nettle J agreed at [92]-[93]) further explained at [88]-[89]:

… the principle in Lim is engaged only by laws that require or authorise detention. Section 501(3A) does not take on that character, and does not engage the principle in Lim, simply because a person whose visa is cancelled under that provision becomes liable to be detained under different provisions (none of which were themselves suggested to be invalid).

What s 501(3A) does is to require the cancellation of a visa in certain circumstances. It confers a power, which the Minister has a duty to exercise, to determine whether a non-citizen can enter, or remain in, Australia. That power is administrative in character. It forms no part of the judicial power of the Commonwealth. In particular, the exercise of that power does not trespass on the exclusively judicial function of determining or punishing criminal guilt.

(Footnotes omitted; emphasis added).

29    The same position applies here in respect of paragraphs 8(2) and 8.2 of Direction 90 and their attendant effect upon the cancellation of the applicant’s visa under s 501(3A) of the Act and non-revocation of that decision under s 501CA(4). As was observed in Falzon, s 501(3A) of the Act requires the cancellation of a visa in certain circumstances. Section 501CA provides a statutory means by which a person affected by such a decision may seek its revocation. By reason of s 499, the relevant decision-maker (including the Tribunal on review) was required to comply with Direction 90 in making or reviewing a decision under ss 501 and 501CA of the Act. Paragraph 8(2) of Direction 90 provides that in making such a decision, a primary consideration is whether the relevant person has engaged in conduct “constituted” as family violence. Paragraph 8.2 of Direction 90 gives content to this primary consideration including by directing the decision maker at 8.2(2) that it is relevant where, amongst other things, the non-citizen “has been convicted of an offence, found guilty of an offence, or had charges proved” that involve “family violence” or 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”.

30    As explained by the plurality in Falzon at [48], the power to cancel a visa that is informed by a person’s prior offending is not inherently judicial in character. Such a power operates on the person’s prior offending as a status and objective fact for the making of an administrative decision. It does not involve the exercise of judicial power to impose an additional punishment in respect of that offending. Nothing in paragraphs 8(2) and 8.2 of Direction 90 confer any power on decision-makers to adjudge guilt in respect of a criminal offence, or to punish a visa applicant in respect of such offending, or to impose additional or further punishment in respect of prior offending. These provisions require a decision-maker to make an assessment as to the nature, seriousness and quality of the relevant person’s conduct including prior criminal offending as matters from which to make an assessment whether a visa should be granted or cancelled, or a decision made to cancel not be revoked. The making of such an assessment is not punitive in nature. This conclusion accords with the reasoning of the High Court in Ismail. There, the plaintiff contended, amongst other things, as follows at [30]:

The plaintiff contends that… if para 8.2 of Direction 90 permits family violence to be given weight in the consideration of whether a visa should be granted for reasons other than the protection of the Australian community or the expectations of the Australian community, para 8.2 is invalid (by which the plaintiff meant ultra vires) as it purports to authorise the decision-maker to impose extra-curial punishment on an offender for their offending (which would be beyond the scope of the Act) or to act on an irrelevant basis.

(Footnotes omitted).

31    The Court rejected this argument. It reasoned as follows at [39]-[41]:

… The Minister has directed under s 499(1) that a delegate consider whether the applicant has engaged in family violence. The consideration created by para 8.2 is non-punitive because the purpose of para 8.2 is not properly characterised as one of punishment, retribution, denunciation, or deterrence. Rather, the purpose is to give effect to the Australian Government’s serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia.

The relevant, legitimate, and non-punitive purpose of para 8.2 is apparent from the statement in para 8.2(1) that the concerns of the Australian Government are proportionate to the seriousness of the family violence engaged in by the non-citizen. That proportionate relationship is given substance by para 8.2(3). The subject-matter of para 8.2(3) is not punishment, retribution, denunciation, or deterrence; rather, para 8.2(3) provides factors identified as relevant to the decision-maker calibrating what weight to give to the concern of the Australian Government about family violence.

Paragraph 8.2 of Direction 90 does not unlawfully require a decision-maker to give weight to the same factor in the same context and for the same purpose twice or illegitimately fetter the discretionary power in s 501. Nor does it unlawfully authorise a decision-maker to refuse to grant a visa for the illegitimate purpose of further punishing an applicant for acts of family violence or by reference to any other irrelevant matter. The claimed invalidity of para 8.2 must be rejected.

(Footnotes omitted).

32    This reasoning is applicable here. It follows that I do not accept that paragraphs 8(2) and 8.2 of Direction 90 have as their substantive or practical operation the punishment, or the additional or further punishment, of the applicant.

33    The applicant sought to distinguish the present case from Falzon and Ismail on the basis that, given his personal circumstances, he was to be properly characterised as a “non-alien non-citizen”, or as having the characteristics of a “non-alien”. The personal circumstances and characteristics upon which the applicant relied was the fact that he had effectively grown up and lived in Australia since the age of four, and had been educated and raised a family here, and owed no allegiance to any other country. However, in respect of the contention that the applicant had no allegiance to any other country, the Minister pointed out (without demur) that the applicant is in fact a citizen of Tonga. Nevertheless, the applicant contended that he was a “non-citizen non-alien” relying upon the logic of the decisions of the majority in Love.

34    Putting to one side whether the applicant’s contentions can sit conformably with the reasons in Falzon (as to the non-application of the principle in Lim to an administrative decision made to cancel a visa), I do not accept that the decision in Love supports the proper characterisation of the applicant as a “non-alien non-citizen”. An examination of the respective decisions of each member of the majority in Love discloses that the “decoupling” of the constitutional meaning of “alien” from the statutory meaning of a “non-citizen” was dictated by and limited to the unique position of Aboriginal Australians. Bell J at [63] identified that no prior decision of the High Court had addressed the question of whether the “aliens power” excluded an “Aboriginal Australian from the body politic” and concluded at [81]-[82] that it did not. Nettle J articulated the question that arose at [255] as one in respect of a person of “Aboriginal descent” and who had self-identified as a member of an Aboriginal community and had been accepted by that community as one of its members. Gordon J at [296] reasoned that the constitutional term “aliens” conveys “otherness” or being an “outsider”, and that the term “aliens” did not “apply to Aboriginal Australians, the original inhabitants of the country”. Edelman J reached the same conclusion at [398] that “an Aboriginal person cannot be an alien to Australia” based on the reasons set out at [399]ff. The decisions of the majority in Love were uniform in the conclusion that Aboriginal Australians, or those persons found to be Aboriginal Australians, are not “aliens” for the purpose of s 51(xix) of the Constitution.

35    In my view, the decision in Love has no application beyond its unique circumstances recognising the constitutional and political history of this country. It certainly does not support the contention advanced on behalf of the applicant that there is a class of persons who, by reason of ties and connections to the Australian community or its body politic, are to be recognised as “non-citizen non-aliens”. There is authority to the contrary: see Shaw v Minister for Immigration and Multicultural Affairs [2003] HCA 72; (2003) 218 CLR 28. As Gordon J stated in Love at [304] (citing Shaw), “[i]t is settled that merely living in Australia for a long period does not convert someone from an alien to a non-alien, if they have not taken the step of acquiring citizenship”. Similarly, Nettle J at [257]-[261] set out the relevant authorities and pointed out that “absorption” into the Australian community is not a characteristic that denies the status of alienage: see also Edelman J at [421].

36    The applicant’s contention that he is not an “alien” because of his longevity of residence in Australia, together with his ties and connection to the Australian community, is at odds with settled authority. He is a person who is, and remains, a non-citizen for the purposes of the Act.

37    For these reasons, Ground 1 fails.

D.    GROUND 2

D.1    Overview

38    By Ground 2, the applicant contended that the Tribunal’s decision in fact amounted to punishment in contravention of the Lim principle.

39    The applicant contended that “it is impossible to read the decision of the Tribunal and not conclude that the Tribunal wanted to punish (or repunish) the applicant for engaging in previous family violence conduct”. In particular, the applicant submitted that the Tribunal:

(a)    “second guessed decisions or findings of courts by indicating that the applicant had not been sufficiently punished by the justice system” (at AAT [27]) and did not agree with the assessment made by a sentencing court that the applicant was at a low risk of reoffending but instead found that the applicant posed a serious threat to the Australian community (at AAT [80]-[82]);

(b)    in summarising the “preamble principles” under Direction 90 (at AAT [57]), did not refer to the qualification at paragraph 5.2(4) that a higher level of tolerance may be afforded to those who have lived in Australia for most of their life, or from a very young age;

(c)    incorrectly overstated the effect of Direction 90 (at AAT [61]) to conclude that it contained a clear statement of government policy that family violence crimes are to be regarded as matters of “exceptional seriousness” (emphasis added);

(d)    described all of the applicant’s prior offending as “serious” (at AAT [70] and [72]) when “objectively nearly all of it simply was not”;

(e)    took into account the Tribunal member’s own personal views, and those of another Tribunal member, about the nature of family violence (at AAT [84]-[85]) and considered the Australian Government’s “National Plan to End Violence against Women and Children 2020-2032” (National Plan) (at AAT [170]);

(f)    relied on the utterances of courts in criminal proceedings where punishment was being deployed by Ch III Courts (at AAT [86]-[87]);

(g)    when observing at AAT [88] and [172] that it was not the “remit” or role of the Tribunal to punish, displayed no understanding of what this meant;

(h)    declined to consider the active role played by the applicant in raising his minor children in only giving moderate weight to its conclusion that it was in the best interests of the children that the applicant stay in Australia (at AAT [101]-[112]); and

(i)    made clear that its conclusion that there was no other reason to revoke the Cancellation Decision was fundamentally on account of the applicant’s prior family violence conduct (at AAT [170]-[172]).

40    The applicant ultimately contended that the Tribunal was “really only concerned with what it considered to (finally) be a just retribution against and denunciation of the applicant for having engaged in family violence, rather than with the future protection of society”.

41    In response to this ground, the Minister submitted that, when read fairly, the Tribunal’s reasons do not disclose any error in the way the applicant contended. Rather, the Minister contended that the Tribunal’s reasons demonstrate that the Tribunal discharged its task in accordance with Direction 90, which required it to consider family violence as a relevant primary consideration and, as permitted by the Direction, it gave that consideration greater weight than other considerations.

D.2    Consideration

42    The effect of the applicant’s contentions in support of Ground 2 was that there were parts of the Tribunal’s reasons that both individually and cumulatively established that it was seeking to, and did, punish the applicant in its application of Direction 90 to the applicant’s case. I will deal with each contention individually and cumulatively. However, before turning to address each of the applicant’s contentions, it is necessary to examine the requirements imposed on the Tribunal by Direction 90.

D.2.1    The relevant parts of Direction 90

43    The Minister issued Direction 90 on 8 March 2021, exercising his powers pursuant to s 499(1) of the Act. This was the first time that family violence was deemed a primary consideration by a Ministerial Direction. Direction 90 provides that primary and other considerations must be taken into account where relevant (paragraph 5.2(5)) and that primary considerations should generally be given greater weight than the other considerations (paragraph 7(2)). Relevantly, paragraph 7(2) and (3) of Direction 90 provide as follows:

(2)     Primary considerations should generally be given greater weight than the other considerations.

(3)     One or more primary considerations may outweigh other primary considerations.

44    Paragraph 8.1 of Direction 90 deals with the primary consideration as to the protection of the Australian community. It relevantly provides that:

8.1     Protection of the Australian community

(1)     When considering protection of the Australian community, decision-makers should keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.

(Emphasis added).

45    It will be evident from the text of paragraph 8.1(1) that the Tribunal is directed to keep in mind the Australian Government’s commitment not only to criminal activity but also “other serious conduct” engaged in by non-citizens and the “expectation” that non-citizens will be law abiding.

46    Paragraph 8.1(2)(a) of Direction 90 provides that the decision-makers should also give consideration to the “nature and seriousness of the non-citizen’s conduct to date”. And, relevantly for this purpose, paragraph 8.1.1 provides 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;

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

…

(ii)     crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;

…

c)     with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;

…

(Emphasis and additional emphasis added).

47    A number of textual matters may be noted about the paragraphs extracted above:

(a)    first, decision-makers are not limited to considering criminal offending alone, but are directed to also consider the other conduct of the non-citizen. It follows that an assessment must be made not only of the nature and seriousness of the non-citizen’s criminal offending but also their other conduct;

(b)    second, by the multiple references to “serious”, “very serious” and “very seriously”, it has been made plain to decision-makers that particular types of conduct are to be viewed in that way;

(c)    third, paragraphs 8.1.1(a)(ii) and (iii) and (c) also make it clear that in certain respects the nature and the seriousness of the criminal offending and other conduct must be considered “regardless” of the sentence imposed or whether the non-citizen has been convicted or sentenced at all.

48    Paragraph 8.2 of Direction 90 addresses the primary consideration as to family violence. It provides as follows:

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

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

a)    the frequency of the non-citizen’s conduct and/or whether there is any trend of increasing seriousness;

b)    the cumulative effect of repeated acts of family violence;

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

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

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

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

d)    Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen’s favour. This includes warnings about the non­citizen’s migration status, should the non-citizen engage in further acts of family violence.

(Emphasis added).

49    Again, the text of paragraph 8.2(1) makes it plain that the Australian Government has “serious concerns” about conferring upon non-citizens the privilege of entering or remaining in Australia where they have engaged in family violence. This is an assessment to be made both in circumstances where the non-citizen has been “convicted” of an offence that involves family violence, but also where there is information or evidence from independent and authoritative sources that the non-citizen has been involved in the perpetration of such conduct (paragraph 8.2(2)). The decision-maker is required to make an assessment of the “seriousness” of the family violence (paragraph 8.3).

50    Ministerial directions, while only ever amounting to government policy, are binding on the Tribunal: see Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 46; (2023) 296 FCR 582 at [23] (Mortimer J). Failure to comply with a direction lawfully given may amount to jurisdictional error: BQL15 v Minister for Immigration and Border Protection [2018] FCAFC 104 at [9] (Collier, Flick and Perry JJ).

D.2.2 No error established

51    As noted above, the applicant contended that various parts of the Tribunal’s reasons, both individually and cumulatively, demonstrate that the Tribunal “wanted to punish (or repunish) the applicant for engaging in previous family violence conduct” and that it was concerned with a “just retribution and denunciation” of the applicant’s conduct.

52    I do not accept the applicant’s contentions. The statutory task that the Tribunal was discharging was to identify and make an assessment of the applicant’s conduct by reference to his prior criminal offending in a way that it was required to do under Direction 90 for the purpose of determining whether there was any other reason to revoke the Cancellation Decision for the purpose of s 501CA(4). For the reasons stated above under Ground 1, this did not involve punishment, denunciation or retribution, but an assessment of the evidence for the purpose of making an administrative decision to affirm or set aside the Non-Revocation Decision. In any event, I do not accept that the parts of the Tribunal’s reasons relied upon by the applicant either individually or cumulatively establish that the Tribunal was seeking to punish or repunish the applicant for his prior criminal offending.

The first contention

53    The applicant’s first contention was that the Tribunal “second guessed” the decisions and findings made by sentencing courts relating to the applicant and came to a view that he had been insufficiently punished and was not at a “low risk” of reoffending. In support of this contention, the applicant relied upon the Tribunal’s reasons at AAT [27] and [80]-[82].

54    The Tribunal’s reasons at AAT [27] need to be viewed in the sequential context in which they appear. The paragraph appears under the general heading of “The Applicant’s Offending History” and where the Tribunal stated that the applicant had been convicted of “numerous offences”: AAT [11]. The Tribunal reproduced a table setting out the totality of the applicant’s numerous offences at AAT [12]. At AAT [13], the Tribunal stated that it proposed to “discuss the principal instances of the Applicant’s offending under a series of separate headings”. The applicant’s principal traffic offences were considered at AAT [14], his principal instances of breaching court orders were considered at AAT [15], his principal instances of engaging in violent offences were considered at AAT [16]-[19], and his principal domestic and family violence offences were considered at AAT [20]-[32]. In relation to the domestic violence offences, the Tribunal addressed the incidents that occurred on 22 May 2016 at AAT [21]-[23]. It then addressed the incident that occurred on 10 June 2019 at AAT [24]-[27]. It finally addressed the incident that occurred on 8 April 2021 at AAT [28]-[32].

55    In relation to the incident that occurred on 10 June 2019, the Tribunal’s extract from the relevant police report at AAT [24] sets out that the incident was one which involved the applicant attacking his (then) 15 year old daughter by slapping her “pretty hard”, pulling her hair “pretty hard” and using the wooden handle of a hammer across the top of her head and cheeks. The police report recorded that, in total, the applicant had hit his 15 year old daughter some 15 times which included the use of the wooden handle of the hammer five to six times. At AAT [25]-[26], the Tribunal extracted the reasons of the sentencing Magistrate. As set out at AAT [26], the sentencing Magistrate had stated:

Yes, there is going to be a level of correction, lawful correction. I do not think this is lawful correction on any view, nor would any other person in the community. You are into some form of gaol. Let us make that abundantly clear. Anything short of some form of gaol would be an affront quite frankly against your record and the serious example of domestic violence, and need to encourage people to do the right thing. As I said, so many times with these type of matters with domestic violence particularly young people, their injuries whatever your daughter sustained when it came to injuries, they will heal. But what will not heal is the emotional damage. The fact that young people will see that it is okay for violence to be used against other people. You imagine the emotional damage as opposed to the physical damage. Quite frankly you are awfully close to going in full-time. That would not come as a surprise.

(Emphasis added; footnote omitted).

56    Then, at AAT [27], the Tribunal stated:

After considering the Applicant’s previous record of offending and noting that while there had been no “recent’ violent offences, the Magistrate went on to impose a sentence on the Applicant. It is not for the Tribunal to reflect upon the determinations of the Court but rather simply to observe that, for the offence of hitting a 15-year old vulnerable girl over the head with a hammer five or six times and otherwise physically assaulting her a further 10 times, so that this child had to clean the blood off herself and even from the blinds in her bedroom, the Applicant was given a sentence of an Intensive Correction Order for 12 months with supervision by Community Corrections Service and required to perform 100 hours of community service. The Applicant completed all these requirements in accordance with the orders of the Court.

57    The applicant relied upon this paragraph to contend that the Tribunal was “second guessing” the decision of the sentencing Magistrate by finding that the applicant had been insufficiently punished. The observation made by the Tribunal in the second sentence of AAT [27] does imply that the Tribunal member considered the sentence imposed to have been somewhat lenient without expressly saying so and noting that it was not for the Tribunal to “reflect” upon the sentencing determination. However, it does not follow that in making such an observation, the Tribunal was seeking to punish or repunish the applicant in respect of the relevant offending.

58    In my view, the Tribunal was identifying and making an assessment as to the nature and seriousness of the applicant’s conduct that had given rise to the criminal offending, irrespective of the sentence that was imposed but taking that fact into account. As set out above, by paragraphs 8(1) and 8.1 of Direction 90, the Tribunal was required to have regard to the primary consideration as to the protection of the Australian community. In considering this primary consideration, paragraphs 8.1(2)(a) and 8.1.1 directed the Tribunal to have regard to the nature and seriousness of the applicant’s conduct. For this purpose, paragraph 8.1.1(c) required the Tribunal to have regard to the “sentence imposed by the courts for a crime or crimes” with the exception of the crimes or conduct specified in subparagraphs 8.1.1(a)(ii) and (iii) and 8.1.1(b)(i), which include crimes or conduct of a “violent nature against women or children”. It follows that in relation to the offence involving a violent attack on a 15 year old child, the Tribunal was required to have regard to the nature and seriousness of that conduct without necessarily having regard to the sentence imposed by the relevant sentencing court. In my view, the Tribunal approach its task in a manner that conformed with Direction 90 and did not engage in any error in respect of the observations made at AAT [27]. I do not accept that the Tribunal was seeking to punish, or repunish, the applicant.

59    The applicant also contended that the Tribunal’s reasons at AAT [80]-[82] were another example where the Tribunal had second-guessed and disregarded the findings made by sentencing courts and was seeking to punish the applicant. The context to these paragraphs is what appears in the immediately preceding paragraphs in which the Tribunal was considering and assessing the applicant’s risk of re-offending. At AAT [73], the Tribunal stated:

In assessing risk, the Tribunal accepts that there is no such thing as an entirely risk-free guarantee of future conduct. The degree of risk is related to both the likelihood of reoffending and the potential gravity of such future offences. Any such assessments must necessarily be speculative and weigh what an Applicant or their witnesses says about his or her own future conduct against what the evidence before the Tribunal suggests.

(Footnote omitted).

60    At AAT [76]-[79], the Tribunal stated:

When the Applicant was before the Court in 2019 the Sentencing Magistrate was provided with a Sentencing Assessment Report from NSW Community Corrections which assessed the Applicant as “suitable to undertake community service work”. In 2021 a further Sentencing Assessment Report rated the Applicant as having a “low” risk of reoffending.

The Sentencing Magistrate does not appear to have referred to the report before him however in the severity appeal the Judge, in declining to reduce the original sentence remarked that:

I cannot say that I am able to determine, even taking into account the Sentencing Assessment Report with which I have been provided and which indicates that the offender has a low risk of reoffending and has prospect of rehabilitation, taking into account what is on his parole record. In my opinion, the magistrate was correct in imposing an aggregate term of imprisonment for 12 months and a non-parole period of five months.

There is no doubt that the Applicant has made several expressions of remorse for his behaviour, both in his written submissions and in his evidence to the Tribunal, although he did not take the opportunity to do so at the court hearing in 2021.

The Tribunal also takes note of the evidence presented about the number of rehabilitation courses undertaken by the Applicant while in custody. It appears that he has participated in some 26 online courses involving some 161 hours of course work, of which related to parenting skills. In addition, he has participated in some online programmes run by the rehabilitation centre, Odyssey House. The Tribunal gives the Applicant credit for his efforts in this regard and notes that the [sic] told the Tribunal that he had learned in particular that he needed to more effectively manage his anger and not react immediately to perceived provocations.

(Footnotes omitted).

61    Pausing here, it would appear that at some point there was a “Sentencing Assessment Report” that assessed the applicant as being at a “low risk” of re-offending. It does not appear that the sentencing judge at first instance relied upon that Sentencing Assessment Report. It would appear that the District Court Judge (on a severity appeal) had regard to that Report, but does not appear to have made an express finding that the applicant was, in fact, at a “low risk” of re-offending. Having regard to all of these matters, the Tribunal then stated at AAT [80]-[82] that:

However, what weighs in the mind of the Tribunal is that the Applicant has a consistent record of disregarding court orders and directions. This was evident in his earlier traffic record but is then repeated in his failure to adhere to bail conditions, corrections orders and AVOs. The Tribunal cannot be assured that this behaviour of ignoring inconvenient restrictions is not somehow an ingrained feature of the Applicant’s value system and behaviour. As such it does not feel confident that it can find that the Applicant is at a “low” rate of risk for reoffending, even if the reoffending is at the level of ignoring court orders (itself a matter of considerable seriousness) rather than actually committing further acts of violence.

In such circumstances there is a risk that the Applicant would commit further offences which, should they repeat his violent and aggressive behaviour demonstrated both against members of his immediate family and total strangers, would pose a serious threat to the Australian community. In this sense the Tribunal accepts that a threat to individuals can, and does in these circumstances, constitute a threat to the community as explained in a recent decision by Abraham J.

Conclusion

There is a genuine risk that the Applicant will re-offend and should he do so there would be a genuine threat to the wellbeing of the Australian community. As such, this criterion must count against the Applicant and does so to a significant degree.

(Emphasis added; footnotes omitted).

62    I discern no error in the Tribunal’s consideration and assessment as to the applicant’s risk of re-offending. I was taken to no evidence that demonstrated that a sentencing court had in fact made a positive finding, in terms, that the applicant was at a low risk of re-offending. Even if such a finding had been made by a sentencing court, the Tribunal was not bound to accept it. By paragraph 8.1.2 of Direction 90, the Tribunal was required to consider the risk to the Australian community should the applicant commit further offences. Paragraph 8.1.2(b) required it to consider the “likelihood” of the applicant engaging in further criminal or other serious conduct taking into account the matters specified in subparagraphs (i) and (ii). The Tribunal was entitled to make an assessment of such a likelihood on the information and evidence before it as to the applicant’s risk of re-offending, and was not limited to the materials that may have been before a sentencing court. The Tribunal had regard to the applicant’s “consistent record of disregarding court orders and directions” including his failure to adhere to bail conditions, corrections orders and AVOs. Based on that material, the Tribunal was not satisfied that there was a “low risk” of the applicant re-offending but was satisfied that there was simply “a risk” which it described as a “genuine risk” that the applicant would reoffend. Nothing with this process of reasoning discloses any error, let alone that in making such an assessment the Tribunal was seeking to, and did, punish or repunish the applicant.

The second contention

63    The applicant next complained that the Tribunal was seeking to, and did, punish or repunish the applicant by the way in which it summarised the “preamble principles” at AAT [57]. There, the Tribunal stated:

In particular, the Direction provides inter alia that:

•    being able to come to or to remain in Australia is a privilege conferred 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;

•    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;

•    there is an expectation that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engage in conduct that raises serious character concerns, regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community; and

•    Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community for a short period of time.

64    The applicant contended that in this summary of principles the Tribunal made no reference to the qualification at paragraph 5.2(4) of Direction 90 that a higher level of tolerance may be afforded to those who have lived in Australian for most of their life or from a very young age.

65    It is correct (as the applicant submitted) that in its identification of the “preamble principles” at AAT [57], the Tribunal did not refer to the qualification specified in paragraph 5.2(4) of Direction 90. However, nothing turns on this. By use of the words “inter alia” at AAT [57], the Tribunal made plain it was not seeking to be exhaustive as to the general and “preamble” principles. More relevantly, the Tribunal understood and considered the relevant qualification as is made plain by other parts of its reasons. At AAT [148] and [156]-[158] the Tribunal considered the applicant’s time spent in Australia and ultimately found that his links to the Australian community weighed significantly in his favour at AAT [168](h). I discern no error and do not accept that in identifying the “preamble” principles at AAT [57], the Tribunal was seeking to, and did, punish or repunish the applicant for his prior offending.

The third contention

66    The applicant next contended that the Tribunal’s reasons at AAT [61] disclosed that the Tribunal was seeking to, and did, punish or repunish the applicant by incorrectly overstating the effect of Direction 90 by finding that it contained a clear statement of government policy that “family violence crimes” are to be regarded as matters of “exceptional seriousness”. This aspect of the applicant’s argument overlaps with Ground 4.

67    At AAT [61], the Tribunal stated:

It is worth noting that the issue of “family violence” was introduced into MD90 as a major addition from the set of criteria which existed under its predecessor Ministerial Direction 79. This reflects a clear statement of government/public policy that crimes of family/domestic violence and violence against women or vulnerable people are to be regarded as matters of exceptional seriousness.

68    In oral submissions, the applicant acknowledged that paragraph 8.1.1(1)(a) of Direction 90 specified that the Australian Government viewed “very seriously” certain types of crimes and conduct including “crimes of a violent nature against women or children, regardless of the sentence imposed” and “acts of family violence, regardless of whether there is a conviction for an offence or sentence imposed”, but contended that the words “very seriously” were not consonant or synonymous with the characterisation of these matters as being of “exceptional seriousness”.

69    I do not accept the applicant’s contentions. It is well settled that the Tribunal’s reasons should be read fairly and as a whole, and the Court should not be concerned with mere looseness of language or unhappy phrasing: Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; (2015) 258 CLR 173 at [59]-[60]; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272. It is also well settled that the Tribunal’s reasons must not be approached with an eye attuned to error: Plaintiff M64/2015 at [59]; Wu Shan Liang at 272. In my view, the Tribunal’s identification of the policy of the Australian Government placing “exceptional seriousness” on crimes and conduct involving family and domestic violence was no more than looseness in language to convey the idea that these were matters which had been, amongst others, singled out for particular attention on the part of decision-makers. In this sense, the singling out of one type of offending as giving rise to a primary consideration may be viewed as exceptional relative to other types of offending. I do not consider the Tribunal erred. Nor do I consider that in taking this approach, the Tribunal was seeking to, or did, punish or repunish the applicant.

The fourth contention

70    The applicant next contended that the Tribunal characterised his prior offending as “serious” at AAT [70] and [72], when “objectively nearly all of it simply was not”. At AAT [70] and [72], the Tribunal stated:

The Tribunal assesses that the offences committed by the Applicant are serious. They involve several instances of crimes of violence and several of these were committed against women, or young vulnerable people. The Applicant has a lamentable record of ignoring the orders of the courts; he has given false information to government authorities (an instance of giving a false name to police in his driving record and a false declaration on an incoming passenger card) and the severity of his offences has increased over time from petty offences to serious assaults.

…

The Applicant’s offending behaviour must be rated as being at a heightened level of seriousness as per the criteria of the Ministerial Direction.

71    The determination of whether the applicant’s prior offences were “serious” was a matter for assessment by the Tribunal. It was plainly open to the Tribunal to find that that offending was “serious” at AAT [70] and [72] having regard to the nature of the applicant’s offending as set out at AAT [20]-[32] and [91]-[100]. The applicant’s contentions invite an impermissible merits review of the Tribunal’s assessment as to the seriousness of his offending. I do not accept that in assessing the applicant’s offending as being “serious”, the Tribunal was seeking to, and did, punish or repunish the applicant.

The fifth to seventh contentions

72    The applicant next contended that the Tribunal sought to, and did, punish or repunish him by applying its own personal views, and those of another senior member of the Tribunal at AAT [84]-[85], and having regard to the National Plan at AAT [170]. The applicant also contended that the Tribunal sought to punish, and did punish, the applicant by relying upon the “utterances of courts in criminal proceedings where punishment was being deployed by Ch III Courts” at AAT [86]-[87] and that, even though the Tribunal observed at AAT [88] and [172] that it was not the remit of the Tribunal to “punish” the applicant, it did not display any understanding of “what this meant”.

73    It is necessary to identify (again in their sequential context) the relevant parts of the Tribunal’s reasons about which the applicant complains. In the context of the overall structure of the Tribunal’s reasons, at AAT [83]ff the Tribunal was addressing the primary consideration specified by paragraph 8.2 of Direction 90 under the heading “Family violence”. At AAT [83], the Tribunal set out the text of paragraph 8.2(3) of Direction 90. It then reasoned as follows at AAT [84]-[100]:

84.    There is no doubt as to where this Tribunal stands in relation to matters of family or domestic violence.

85.    In XNBW Senior Member Illingworth described domestic violence as a “scourge”, a “plague and a “pernicious blight” upon the community. I explained in Mendoza that:

The Australian community, rightly, professes zero tolerance for violence against women. There is zero tolerance for domestic violence perpetrated against any woman, man or child. Such forms of violence are unacceptable at any time – in any place – in any circumstances – and whether manifest physically, emotionally or psychologically.

86.     The Court in R v Saunders stated in relation to intervention orders that:

The purpose of those instruments is to prevent acts of domestic violence which are often emotional and psychological as much as physical. Everyone is entitled to feel safe and secure, especially in their own residence. The violation of that sense of safety and security can have profound consequences for the victim. The community expects the law to protect the vulnerable from the oppressor. This has led the courts to treat crimes involving domestic violence as grave crimes. Parliament has enacted laws designed to provide protection to those subjected to domestic violence. The making of intervention orders is intended to provide this protection.

87.     The Tribunal also notes the comments of the Court of Appeal of Queensland regarding the importance and significance of domestic violence orders to the effect that:

Domestic violence orders imposing restraints of the kind involved here are practically speaking the only available means of curbing in advance conduct in the domestic context that is violent or likely to lead to violence. Unless breaches of such orders are, and are well known to be, visited with appropriate severity, they will quickly lose their value in the minds of both those who obtain them and of those who are subject to them.

88.     These proceedings of course have nothing to do with the issue of punishment, which has already been determined and over which this Tribunal has no remit, but it is important to emphasise that breaches of DVOs are themselves matters of utmost seriousness. Subsection 501(2) “does not authorise the cancellation of a visa for the purposes of deterring other non-citizens from criminal conduct” but the potential consequences of such conduct need to be clearly understood.

89.     It is important to emphasise that family violence, according to the Ministerial Direction encompasses far more than simple acts of physical violence or aggression. The Direction (at 4.1) makes it clear that the term extends to matters such as “stalking”, “repeated derogatory taunts” or “intentionally damaging or destroying property” as well as the exercise of coercive control.

90.     In Vu the Full Federal Court drew attention to the decision of the Supreme Court of the United Kingdom which held that the term “domestic violence” included not only physical violence, but also threatening or intimidating behaviour and any other form of abuse which, directly or indirectly, might give rise to the risk of harm.

Discussion

91.     The Tribunal has set out in considerable detail three separate instances where acts of family violence were committed by the Applicant. In the first instance there was the matter of the obscene and threating Facebook messages sent by the Applicant to his ex-wife. It may well be that assessment of the offence is coloured by the circumstances, namely that the Applicant had become aware that his daughter had been sexually assaulted, that the assailant was his ex-wife’s new partner and that he had not been informed of the fact. His reaction, as he explained to the Police was somewhat understandable, if still inexcusable. Any assessment should be cast within the light of those circumstances.

92.     On the other hand, there appears no degree of mitigation which can be advanced for what were the other two significant instances of family violence. In particular the Tribunal is appalled by a narrative in which a 15 year old girl, asking for nothing more than to be allowed to attend a function is the subject of a gross assault during the course of which another minor child is sent to fetch a hammer, the handle of which is used to beat the child over the head five or six times causing enough blood to be spilled that the child has to wipe it off both herself and the blinds in her bedroom. There was an element of premeditation about part of this conduct. It was not simply some instantaneous reaction, although part of it was, but to send out (via a small child) for a hammer indicates an intention to do something violent – initially to an object but then to a small child.

93.     The Applicant has made a number of statements of remorse in relation to this assault, starting with one made to the Police at the time of his arrest. These were repeated in remarks made to Corrective Service officers, in his Personal Circumstances Form and noted in the 2021 Sentencing Assessment Report.

94.     However, he has also made excuses. Blaming his upbringing he writes:

“I had to suppress my emotions.

I developed passive aggressive behaviour which had hidden anger behind it. I guess it was just a time bomb waiting to explode at any time, and it did with the one’s I love the most.”

95.     One of the Sentencing Assessment Reports states:

“• Mr Lasalo stated that prior to the current offences his relationship with the victim had been difficult for some time.

• He claimed that the victim had eroded the trust in the relationship due to her alleged previous behaviours. He claimed consequently her behaviours caused him to use disciplinary measures with his daughter.

• Mr Lasalo stated that in his view his offending behaviour was a way to discipline his daughter, however stated that ‘it got out of hand’ and acknowledged that in part his offending behaviour was as a result of his poor anger management.”

96.     Case Notes from the NSW Department of Corrective Services record:

“Chris reported around the time of offending he was work for Multi Civil Rail, where he has been employed since 2002 and plans on returning to on release. Things were going well in his relationship and with the family, he noted a prior AVO that was still current pinop was his daughter from a previous relationship that lived with him. He downplayed the incident that resulted in this AVO as a parental disciplinary action.”

97.     There is also an element of victim blaming throughout the accounts of these incidences The Police Report of 12 June 2019 records:

“The accused stated there had been ongoing tension building between himself and the victim over discipline issues and her behaviour on this day was enough.”

98.     The Tribunal notes not only the immediate impact on the Applicant’s daughter but also upon the Applicant’s son who was not only made almost complicit in the attack by being told the fetch a hammer but must have been traumatised by watching the assault upon his sister.

99.     In the second major family violence incident again, the victims included several of the minor children as well as the Applicant’s partner. The Applicant’s 13-year old son, is washing dishes as ordered, but because he is apparently making some noise he is slapped. His mother (who has previously been the subject of gross verbal abuse) intervenes and she is subsequently slapped. A 14-year-old daughter tries to intervene and plead with her father to leave her mother and brother alone. She is also slapped. The mother pleads with a third minor child who has witnessed all this to call the Police, which he does. The sentencing Magistrate expressed the sentiments of the community stating that “There is no excuse for that behaviour”.

Conclusion

100.     There is never an acceptable excuse for family violence as I said in Mendoza. The level of family violence perpetrated by the Applicant was gross. The second incident occurred after he had completed the conditions and requirements imposed on him by the Court for the earlier incident in which he was warned explicitly about the potential consequences of any repeated behaviour. The warnings of the Court and the alleged expressions of remorse at the time provided no shield or protection for the family victims. The Tribunal cannot but conclude that this criterion weighs to the greatest (significant) degree possible against the Applicant.

74    It is next necessary to set out the Tribunal’s reasons at AAT [168]-[173]:

THE FINAL CALCULUS

168.     Returning to consideration of the weight which the Tribunal has ascribed to the various criteria in the Ministerial Direction:

(a)     protection of the Australian community weighs significantly against the Applicant;

(b)     family violence considerations weigh significantly against the Applicant;

(c)     the best interests of minor children weigh moderately in favour of the Applicant;

(d)     expectations of the Australian community weigh significantly against the Applicant;

(e)     non-refoulement obligations weigh neutrally in relation to the Applicant;

(f)     the extent of impediments if removed weigh significantly in favour of the Applicant;

(g)     the impact on victims weigh neutrally in relation to the Applicant; and (h) the Applicant’s links to the Australian community weigh significantly in favour of the Applicant.

169.     The Ministerial Direction indicates that “Primary considerations should generally be given greater weight than the other considerations” (at 7.2), with the operative word being “generally”. In that regard the calculus is clearly against the Applicant.

170.     Although the overall calculus weighs significantly against the Applicant, what counts most heavily for this Tribunal, in all but a determinative sense, is the aspect of family violence. Ministerial Direction 90 replaced Ministerial Direction 79 in April 2021. Although there were several differences between the two Directions, the most significant of these was to introduce into the criteria for consideration the factor of “family violence”. This was a deliberate act of public policy indicative of the abhorrence which the Australian community holds for acts of family violence and its condemnation of those who commit such acts. Such clear statements of public policy, especially when embedded in directions which are binding upon decision-makers are not to be ignored, they must be given full faith and credit. Most recently the Australian Government has produced its National Plan to End Violence against Women and Children 2020 – 2032 which calls for the elimination of gender-based violence in one generation noting that “One in 3 women has experienced physical violence since the age of 15, and one in 5 has experienced sexual violence.”

171.     For the Tribunal to ignore the public policy made explicit in the terms of the Ministerial Direction as they relate to the seriousness of family violence offences would not be consonant with its responsibilities as part of the spectrum of “good government” clearly expected of it.

172.     Perpetrators of gross acts of family violence must expect to be held to account for their actions and cannot expect the Australian community to excuse or ignore them. It is of course explicitly not the role of the Tribunal to deal with matters of punishment or retribution, that is entirely a matter for the Courts. The Tribunal is required make its decision based on the Ministerial Direction and judicial authority, both of which are clear when it comes to dealing with acts of family violence.

173.     Having considered all the requirements of the Ministerial Direction, this Tribunal has not found that there is another reason for the Applicant’s visa cancellation to be revoked.

75    As I have set out above, paragraph 8.1 of Direction 90 required the Tribunal to consider the protection of the Australian community and, in doing so, to make an assessment of the nature and seriousness of the applicant’s criminal and other conduct. The Tribunal was directed to make such an assessment bearing in mind that the Australian community has an “expectation” that non-citizens will be law abiding and “will not cause or threaten harm to individuals or the Australian community”. By paragraph 8.2, the Tribunal was specifically directed to consider and have regard to the Australian Government’s “serious concerns” about matters relating to “family violence” and its concerns about conferring on non-citizens who have engaged in such conduct the privilege of entering or remaining in Australia.

76    By reason of these matters, the Tribunal was required to assess the nature and seriousness of the applicant’s criminal and other conduct. That conduct included instances of family and domestic violence. An assessment of that conduct as against community expectations was quintessentially a matter of evaluative judgment. As the Full Court stated in Vu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 90; (2020) 276 FCR 516 at [28]-[30]:

… It is the expression of an evaluative judgment about what is tolerated by the Australian community; an assessment that the Minister, as an elected representative, is capable of making.

The foregoing conclusion is consistent with the accepted judicial understanding of the same consideration which is required to be taken into account when a non-revocation decision under s 501CA(4) is made by a delegate of the Minister (or the Administrative Appeals Tribunal on review of such a decision). For many years, by successive ministerial directions issued pursuant to s 499(1) of the Act (currently Direction No 90), a delegate making a decision under s 501CA(4) has been required to take into account the expectations of the Australian community, as explained in the ministerial direction. As Bromwich J observed in Afu v Minister for Home Affairs [2018] FCA 1311 (Afu) at [85], “[t]he concept of community expectations is not a matter to be measured as though it is a provable fact. It is an assessment of community values made on behalf of that community”. To similar effect is the statement of Charlesworth J in FYBR (at [66]) that “there does not exist in fact an Australian community holding a homogenous view as to the preferred outcome in any one particular case”. In the same case, Stewart J observed (at [87]) that:

… there are no homogeneous, or even significantly homogeneous, or possibly even predominantly held, Australian “community expectations” with regard to applicable norms for the refusal or cancellation of visas on character grounds, nor with regard to the outcome in any particular case where the refusal or cancellation of a visa is up for consideration. It is notorious that immigration generally, and immigration by way of refugee status and for humanitarian reasons, in particular, is a highly contested issue in the Australian community. There are very different and strongly held views, and hence expectations, and there is no ready mechanism by which such expectations can be ascertained or measured.

It is to be understood that, in taking account of the expectations of the Australian community, the Minister is in fact taking account of the Minister’s conception of those expectations. As explained in Djalic v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 292; 206 ALR 488; [2004] FCAFC 151 (Djalic) (in respect of the application of s 501(2)): “[t]o take account of community expectations is to give effect to the Minister’s conception of the public interest” (at [74]). The Minister cannot, of course, take account of community expectations which are formed in ignorance of all relevant facts. Community expectations would only be relevant to the Minister’s decision if and in so far as they were based on a full understanding of all relevant facts and circumstances. It follows that, when taking into account community expectations, the Minister must base his conception of community expectations on fully informed expectations; that is, what the Australian community would expect if, like the Minister, it were informed of all relevant facts and circumstances. In determining the Australian community’s expectations, the Minister does no more than form an opinion about those expectations, based on all relevant facts and circumstances, as the elected representative of the community empowered to make the revocation decision.

77    These observations are pertinent to the way in which the Tribunal reasoned here. Its statements at AAT [84] as to there “being no doubt where this Tribunal stands” in relation to matters of family or domestic violence and references to earlier cases of the Tribunal (including by the same Tribunal member and another) are to be viewed as expressions by the Tribunal as to its opinion as to the expectations of the Australian community in relation to matters of family and domestic violence. That opinion was in part informed by decisions of sentencing courts and earlier decisions of the Tribunal, as well as other sources such as the National Plan, that have naturally enough denounced family violence and made observations as to the multifaceted harm that it occasions to victims, their families and the community, especially upon those who are vulnerable. Frankly, in my view, there is nothing surprising in the Tribunal member’s reference to an earlier decision of the Tribunal that “[t]he Australian community, rightly, professes zero tolerance for violence against women. There is zero tolerance for domestic violence perpetrated against any woman, man or child”. More to the point, there was no error in the Tribunal member forming such an opinion, which was necessarily an expression of the Tribunal member’s assessment and evaluation as to the expectations of the Australian community. It may have been an infelicity on the Tribunal member’s part to suggest that the Tribunal has a particular stance, but the reasons need to be read in context and having regard to the subject matter. I do not consider that the Tribunal was seeking to punish or repunish the applicant for his past offending, a matter which it expressly stated it was conscious of at AAT [88]. Rather, in my view, the Tribunal was making an assessment about the nature and quality of the applicant’s conduct by reference to the opinion it had formed about the Australian Government’s and the Australian community’s expectations about those matters, including in respect of a non-citizen.

The eighth contention

78    The applicant next complained that at AAT [101]-[112] the Tribunal “declined” to consider that the applicant had played an active part in raising his children and erred in concluding that the best interests of the children should be given “moderate” weight. I do not agree.

79    The Tribunal’s reasons at AAT [102]-[103] disclose a careful consideration of the evidence given before the Tribunal including from the applicant, some of his children and his partner as to his involvement in their lives. The Tribunal weighed that evidence as against other evidence as to the limited contact the applicant had with his children since his incarceration and detention, and that he had subjected or exposed his children and partner to acts of family violence. I do not accept the contention that the Tribunal “declined” to consider the relevant evidence or the applicant’s claim in this regard. Nor do I accept that the Tribunal erred in giving this factor “moderate” weight. The weight placed on the primary and other considerations is quintessentially a matter for the Tribunal: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 21 at 41 (Mason J; Gibbs CJ and Dawson J agreeing at 30 and 71); Abebe v Commonwealth (1999) 197 CLR 510 at [197] (Gummow and Hayne JJ); and Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; (2010) 243 CLR 164 at [33]. I do not accept that in giving “moderate” weight to the best interests of the children the Tribunal was seeking to, or did, punish or repunish the applicant.

The ninth contention

80    The applicant next contended that the Tribunal sought to, and did, punish or repunish him because its ultimate conclusion was fundamentally on account of the applicant’s prior family violence conduct: AAT [170]-[172]. I do not accept this contention.

81    As set out above, the Tribunal’s reasons disclose that in its calculus of weighing the relevant primary and other considerations, some weighed in favour of the applicant but that “the overall calculus weigh[ed] significantly against the Applicant”, and that the consideration of most weight was “the aspect of family violence”. Paragraph 7(2) of Direction 90 permitted the Tribunal to give greater weight to primary considerations. I do not regard the Tribunal as having erred in giving greater weight or even ultimate weight to the consideration relating to family violence. In doing so, the Tribunal was not seeking to punish or repunish the applicant, but discharging its task in a manner permitted by Direction 90.

The cumulative effect of the Tribunal’s reasons

82    Separately to each of the individual contentions referred to above, I have also considered the cumulative effect of all of these matters together. The applicant contended that cumulatively these individual matters established that the Tribunal was seeking to, and did, punish or repunish the applicant. I do not agree. The matters about which the applicant complains are demonstrative of evaluative assessments made by the Tribunal as to community expectations in light of the terms of Direction 90, and the applicant’s particular offending and conduct.

83    For the above reasons, Ground 2 fails.

E.    GROUND 4

E.1    Overview

84    As I have mentioned above, this ground overlaps with an aspect of Ground 2. By Ground 4, the applicant contended that the Tribunal asked itself the wrong question or applied the wrong test at AAT [61], where the Tribunal stated:

It is worth noting that the issue of “family violence” was introduced into MD90 as a major addition from the set of criteria which existed under its predecessor Ministerial Direction 79. This reflects a clear statement of government/public policy that crimes of family/domestic violence and violence against women or vulnerable people are to be regarded as matters of exceptional seriousness.

(Emphasis added).

85    The applicant contended that the Tribunal’s use of the words “exceptional seriousness” was “patently wrong” as there is a “subtle but highly significant difference between the adjectives/adverbs ‘very’ and ‘exceptional’”. The applicant contended that this was “not a throw-away, insignificant flourish on the part of the Tribunal”, but rather, given its location in the Tribunal’s reasons and having regard to the reasons as a whole, offers an “accurate and penetrating insight” into the Tribunal’s flawed understanding of what was required of it.

86    Drawing on his submissions in relation to Ground 2, the applicant submitted that the Tribunal attached an “overly ardent, almost obsessive significance” to his history of family violence conduct, when what was required of it was “something more sober and reflective”, bearing attention to the government’s “very serious” concerns rather than concerns of “exceptional” seriousness. The applicant submitted that the Tribunal misunderstood and went beyond what was required of it under Direction 90 by applying an elevated and therefore incorrect level of concern regarding his prior engagement in family violence.

87    The Minister submitted that the Court should be hesitant in acceding to the identification of error premised on the use of a single word by the Tribunal in the course of extensive reasons for decision, citing Wu Shan Liang. The Minister contended that, in any event, the Tribunal’s language at AAT [61] was simply reflective of the significance of the introduction into Direction 90 of a further primary consideration directly addressing family violence.

E.2    Consideration

88    For the reasons I have set out above at [66]-[69], the Minister’s submissions should be accepted. Paragraph 8.2 of Direction 90 was intended to require decision-makers making decisions under s 501CA(4) to have regard to the Government’s “serious concerns” about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. It was not erroneous for the Tribunal to note the seriousness of the Government’s concerns in that respect, and the Tribunal was entitled to reflect in its reasons the intent behind paragraph 8.2 using the language it chose to employ. As I have stated above, the Australian Government has singled out a particular type of offending as being a “primary consideration” and in that sense it may well be considered as being “exceptional” relative to other types of offending. This is also consistent with paragraph 5.2(5) of Direction 90, entitled “Principles”, which states as follows:

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 measurable risk of causing physical harm to the Australian community.

(Emphasis added).

89    In light of this statement of general principle, the singling out of offending in the nature of family violence may be seen as exceptional. In any event, for the reasons I have set out above, it is my view that the Tribunal’s use of the words “exceptional seriousness” was no more than loose language. It is correct, as the applicant submitted, that the Tribunal focussed significant parts of its reasons on family violence, and gave that consideration greater weight. However, in doing so, the Tribunal was approaching its statutory task in a manner consistent with the requirements of Direction 90.

90    For these reasons, Ground 4 fails.

F.    GROUND 5

F.1    Overview

91    This ground raises the question of whether the Tribunal failed to meaningfully consider the primary consideration as to the best interest of minor children and ignored evidence that was relevant to this consideration.

92    The best interests of minor children primary consideration is set out at paragraph 8.3 of Direction 90, which provides:

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.

93    The applicant submitted that the Tribunal was required to consider material in an “active intellectual process” and “call [its] own attention to the matters which [it was] bound to consider” by sincerely giving “proper, genuine and realistic consideration to the merits of the case”: citing Peko-Wallsend at 39 (Mason J); and Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291 at 292 (Gummow J).

94    The applicant submitted that the Tribunal failed to turn its mind to, or engage in any meaningful way with, sub-paragraphs 8.3(4)(a), (b) and (c) of Direction 90, and/or with material provided by the applicant which he says showed that it was “overwhelmingly” in the best interests of his minor children that he remain in Australia. He contended that that information went to the applicant’s “significant capacity and prior history of financial and other support of his family, and specifically the three minor school aged children”, including by:

(a)    having significant earning capacity, so that there was financial provision for their education at private schools, and significant extra-curricular activities;

(b)    playing an important role as a parent in raising school leaders and good future citizens; and

(c)    being an active parent in a highly functioning family.

95    Further, the applicant contended that, in assessing the role that the applicant might play in the lives of the children, the Tribunal overlooked information before it concerning the application that his partner had made in an attempt to vary an AVO while the applicant was incarcerated, so that he could maintain contact with his children while in immigration detention. The applicant submitted that the Tribunal’s dismissal of that “claim” at AAT [107] shows that a “lack of corroborating evidence” was held against him, when in fact there was evidence before the Tribunal that the applicant’s partner had made such an application.

96    The Minister submitted that, contrary to the applicant’s submissions, the Tribunal did engage in meaningful consideration of the children’s best interests in accordance with Direction 90.

F.2    Consideration

97    I do not accept the applicant’s contentions. In the proceedings before the Tribunal, the Applicant’s SFIC addressed the issue as to the “Interests of Minor Children in Australia” as follows (in respect of which I have removed all names so as not to identify any minors):

Interests of Minor Children in Australia

28.    The Applicant has four (4) minor children with his most recent defacto partner […]:

…

29.     The Applicant has four (4) children from his first marriage to […]:

…

30.     There is currently an Apprehended Violence Order (ADVO) protecting […] and the children until 31 May 2023 [GD 111]. The Applicant is the defendant on the ADVO. On the 6 July 2021, Ms […] applied to have the ADVO varied and condition 6 which restricted all contact was suspended whilst the Applicant is in Villawood Detention Centre.

31.     Prior to incarceration the Applicant played an active daily parental role in all of his children’s lives. Now, while in detention he has regular contact with his children as per Ms […] letter of support dated 19 October 2022 [ATB p1]

32.     Ms […] is of the opinion that its [sic] in the best interest of her children that their father remains in Australia [ATB 1]

33.     It is our submission that the Applicant has played a significant role in his children’s lives as he has provided financial and practical support prior to his incarceration. He has been a present and active parent.

34.     The Applicant is also an uncle to his nieces and nephews as per family tree at [ATB 2]:

…

35.     As per the Applicant’s most recent statement he states that he loves his nieces and nephews and has maintained a good relationship with them. He plays an uncle role in their lives.

36.     We submit that this consideration should be given significant weight in favour of revoking the visa cancellation.

98    As noted above, the applicant contended that the Tribunal did not specifically mention or refer to the fact that the applicant provided financial support or had paid for school fees, or that he had the means to do so, or that he was an active participant in his children’s lives as part of a highly functioning family, and in supporting his children to become school leaders and good future citizens. The applicant also contended that the Tribunal had overlooked an important item of evidence in its reasons. At AAT [106]-[108], the Tribunal stated:

106.     In short, the Respondent argues that the Applicant has only played a limited role in the life of the children and that, since his incarceration and the issuance of the AVO this has been even more limited. It suggests that this limitation is likely to continue in the future.

107.     The Applicant asserts, in reply that Ms […] applied on 6 July 2021 for a variation in the AVO, but there does not appear to be any corroborating evidence before the Tribunal on that point, nor is it referenced in Ms […]’s letter of support of 20 October 2022 as having been effected.

108.     On the other hand, future plans for some form of Parenting Plan to be put in place have been referenced so that the Applicant could have access to the children without breaching the AVO. It is hard to see how this could be achieved as the AVO is specific in preventing such contact.

(Emphasis added; footnotes and names omitted).

99    The applicant contended that contrary to AAT [107], there was evidence before the Tribunal that his former partner had made an application to vary the AVO. The Minister accepted that there was evidence of such an application before the Tribunal, and accepted that the Tribunal’s statement at AAT [107] that there did not appear to be any “corroborating evidence” was factually incorrect. However, the Minister contended that the factual error was of no moment.

100    An error of fact is not, without more, jurisdictional error: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 at [53]. Where an error of fact leads to unreasonableness, illogicality, irrationality or reasoning for which there is no probative basis, and the erroneous finding is material to the ultimate decision, jurisdictional error may be established: AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; (2018) 361 ALR 227 at [41](d); CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 253 FCR 496 at [38]; Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [130]-[132], [135] (Crennan and Bell JJ); Gill v Minister for Immigration and Border Protection [2017] FCAFC 51; (2017) 250 FCR 309. The “fundamental question must be the importance of the material to the exercise of the Tribunal’s function and thus the seriousness of any error”: Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 at [111].

101    Further, it was not necessary for the Tribunal to refer to every item of evidence in its reasons: Applicant WAEE v Minister for Immigration and Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593 at [46] (French, Sackville and Hely JJ). Nor was it necessary for the Tribunal to refer to every line of the applicant’s representations, whether advanced by him or members of his family: Goundar v Minister for Immigration and Border Protection [2016] FCA 1203 at [56]. What the Tribunal was required to do was to consider the substantial and clearly articulated arguments advanced by the applicant and on his behalf: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088 at [24] (Gummow and Callinan JJ). If a review of the Tribunal’s reasons discloses that it ignored, overlooked or misunderstood a substantial and clearly articulated argument, that may give rise to jurisdictional error: Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 275 CLR 582 at [27] (Kiefel CJ, Keane, Gordon and Steward JJ). A failure to respond to “substantial, clearly articulated arguments relying upon established facts” may amount to a denial of procedural fairness: BKTS v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 729 at [86] (Perry J).

102    The nature, form and content of the representations made affects the Tribunal’s obligation to consider the representations, and the requisite level of engagement required by the decision maker will depend on the nature, form and content of the representations: Thompson v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 776 at [66] (Halley J). The degree of effort required from the decision maker will vary, depending on the length, clarity and degree of relevance of the representations: Thompson at [66]. In ECE21 v Minister for Home Affairs [2023] FCAFC 52; (2023) 297 FCR 422, a Full Court (Mortimer, Colvin and O’Sullivan JJ) stated at [7]-[8]:

Having regard to what their Honours said in Plaintiff M1/2021, two aspects of the statutory task must be borne in mind for present purposes. The first aspect is that there is an important distinction between considering (in the sense of adverting to and understanding) the representations made by an applicant seeking the revocation of a visa cancellation under s 501CA(4) (on the one hand) and considering the same representations, in the sense of evaluating their significance in the course of making the decision (on the other hand). What was emphasised by their Honours in Plaintiff M1/2021 was the width of the discretionary power conferred by s 501CA(4). The consequence is that it is for the Minister, acting reasonably and rationally and having demonstrably identified and understood the representations being made, to determine whether a particular matter is of significance. Therefore, a reviewing Court will need to decide if a failure to refer to a particular matter in the Minister’s reasons, even a matter that was clearly articulated by the applicant or which clearly arose on the materials, may indicate that the Minister was not persuaded that it was of significance, or whether that failure is evidence that the decision-maker did not identify and understand the representations being made.

Hence when it was said in Plaintiff M1/2021 that ‘a decision-maker must read, identify, understand and evaluate the representations’ (at [24]), noting that this does not extend to claims that are not clearly articulated or which do not clearly arise on the materials (at [25]), reference was being made to comprehending what was being advanced by the applicant. Similarly at [27] when it was said that relevant facts or materials or substantial and clearly articulated arguments must not be ignored or overlooked. In respect of both these propositions, the reasons of a decision-maker must demonstrate this has occurred. Accordingly, approaching the matter on the basis that the Court enquires into the degree or quality of consideration in the reasoning is likely to lead to error in the form of the Court usurping the function of the Minister: at [26]. This, it seems, was the aspect of Full Court decisions of this Court, like Omar, that the High Court disagreed with.

(Emphasis added).

103    In the present case, it is correct that the Tribunal did not specifically or in terms mention the financial support the applicant had provided to his children including in attending to payment of their school fees, or to his involvement in seeking to develop them into school leaders and good future citizens, but it does not follow that the Tribunal ignored, misunderstood or overlooked the arguments being advanced on the applicant’s behalf. At AAT [101]-[104], the Tribunal reasoned as follows:

101.    MD90 (at 8.3(4)) sets out the issues to be considered by decision-makers in this regard. They include matters such as the nature and duration of the Applicant’s relationship with the children, the nature of their parental role, the possible effects of separation on the children, the views of the children (to the extent they are known and taking into account the level of maturity or understanding of the child) and whether or not the children have been exposed to or suffered from physical abuse by the Applicant.

102.    Moreover, the interests of each minor child identified must be taken into account separately and such children’s interests are not subject to some “high level” collective assessment.

103.     There are three “groups” into which the various children concerned fall. The first are the four minor children with the Applicant’s partner Ms […]. Secondly there is one minor child (now aged 17 years) from his first marriage to Ms […]. The other two children of this marriage are now adults. Finally, there are nine nephews and nieces.

(a)     […] (aged 15) is the eldest daughter by Ms […]. She has written in support of her father stating that he is “a rely [sic] important person in my life”. She outlines the extent to which the Applicant supports her and the family; devises games and musical activities for them, encourages them to learn self-defence and martial arts and supports her education. She writes that being apart from her Dad “isn’t something I want”. The Applicant describes his relationship as “a father/daughter connection like no other”. He also says that they participate in Bible readings each afternoon. […] was, of course, one of the victims of the Applicant’s family violence and it is difficult to square his professions of love and support with his manifest behaviour. Nevertheless, the Tribunal accepts that there would be benefit for […] were she to have a father figure in her life.

(b)     […], aged 14, is the Applicant’s eldest son. He writes that his father is “an excellent role model for me” and that he encourages him to do his best and try new things. He also writes that “I cannot imagine not having my Dad around, I miss him dearly”. The Applicant describes […] as “the gentle giant and clown of our family” who looks forward to their daily Bible reding sessions. […] was the victim of the first part of the assault on family members in 2021. Again, the Tribunal does not dispute that there would be benefit for a young man of this age having a father figure in his life.

(c)     […], aged 12 is the second son and also writes that his father “is always proud of me and my siblings for following our dreams” and that although his father is busy, he “somehow makes time for us”. For […], “My dad is a Batman in our family”. The Applicant writes that […] is “the politician in our family” because he always wants to debate everything. As with […], the Tribunal accepts that it would be of benefit to […] were his father to be able to play an active role in his future.

(d)    There are no written representations from […] who is only five years of age. His father describes […] as “my shadow whom I see every day” and regards him as “his dad’s precious baby”. He writes that […] walks around with a picture of his father to which he talks constantly. Again, the Tribunal accepts that it is generally in the best interests of children to grow up in a household with more than one supportive parent, provided that such households are free from acts of domestic or family violence.

(e)     The Tribunal notes that Ms […] as [sic] written a submission in which she pleads for the Applicant to be allowed to remain in Australia in which she draws attention to the importance of this for their children. Her submission will be further considered in due course.

(f)     […] is aged 17 (and will be 18 in September 2023) and is the only minor child from the marriage with Ms […]. She both provided a letter to the Tribunal and gave impressive oral evidence. She writes that she had an unstable life as a young person with her mother largely absent. She was raised by her grandparents as “wasn’t given access to my dad which I didn’t have a problem with because I didn’t particularly like my dad.” She saw her father on only some three occasions before she moved in with him and the other members of his family when she was 11/12 years of age and her relationship with her mother had broken down. She writes that she “did enjoy some of the time I lived with my dad” but that “a lot of anger was released when he was drunk”. She eventually returned to live with her mother but that “I recently got in touch again with my dad and my other siblings and this was through my younger sister”. In relation to her father, “Our relationship is on its way to becoming a father daughter bond and if he was to be deported it would ruin what we’ve been trying so hard to achieve.” In her oral testimony to the Tribunal […] confirmed all the details she had written in her submission, indicated that she was not aware of what the Applicant’s plans might be if he were allowed to return to the community and hoped that he would be “a changed man”. The Tribunal gives somewhat limited weight to the interests of […] in relation to this criterion on the basis that her time spent with the Applicant has been limited, he has played a limited part in her life and that it will not be long before she ceases to be a minor child.

(g)     The Applicant has referred to nine nephews and nieces. Three of them are children of Ms […]’s sister and they are aged 16, 14 and 12 years respectively. There are then six children whose ages range from 7 to 14 years. Other than their names which are given in the Applicant’s Statutory Declaration, no details about any of them are provided, nor were they provided in the Applicant’s Person Circumstances Form. In his statement the Applicant writes, “I have a good relationship with them. I am often the favourite uncle. I spoil them and when they sleep over we play games and have family gatherings. I play an uncle role in their lives and I love them and hope I can stay in Australia and be part of their lives.” No further information was provided about these nephews and nieces to the Tribunal and it is not possible to accord any weight to their alleged interests in relation to this criterion.

Conclusion

104.    The Tribunal accepts, on balance that it would be in the best interests of those minor children who are the sons or daughters of the Applicant for their father to be allowed to remain in Australia.

(Footnotes and names omitted; emphasis added).

104    It is apparent from the above reasons that, the Tribunal:

(a)    described the terms of paragraph 8.3(4) of the Direction;

(b)    identified the relevant children and observed that the interests of each minor child was to be taken into account separately; and

(c)    had regard to the substance of the representations that had been advanced in relation to each child’s best interests, including by referring to portions of the evidence that had been given by some of the applicant’s children and the applicant’s evidence concerning each child.

105    An examination of these paragraphs also discloses (as set out in the emphasised parts of the paragraphs extracted above) that the Tribunal was aware of and made reference to the applicant’s history of supporting his children and their activities. Specifically, at AAT [103](a), the Tribunal had regard to evidence given by one child that the applicant had supported her education. Ultimately, the Tribunal accepted at AAT [104] that on balance it would be in the best interests of the applicant’s minor children that he be allowed to remain in Australia.

106    Having regard to these matters, the fact that the Tribunal did not specifically mention in terms every item of evidence including in relation to the financial support he had provided his children or that he was seeking to develop them in their schooling and as citizens was of no moment. It was not necessary for the Tribunal to refer to every item of evidence in its reasons: Applicant WAEE at [46]. Nor was it necessary for the Tribunal to refer to every line of the applicant’s representations, whether advanced by him or members of his family: Goundar at [56]. Rather, applying the Full Court’s decision in ECE21 at [7]-[8], the question is whether the Tribunal ignored, misunderstood or overlooked the applicant’s argument in relation to the consideration as to the best interests of the children. Having regard to the extensive consideration that the Tribunal gave to the evidence in relation to the best interests of the children, I am not satisfied that the Tribunal ignored, misunderstood or overlooked the applicant’s argument. I am satisfied that the Tribunal was cognisant of the essential elements of the arguments and representations advanced by the applicant about the interests and needs of his children, and, specifically, of the desire mutually held by the applicant and each of the children that the applicant remain in Australia. I am satisfied that the Tribunal was aware of and understood that the applicant was a source of emotional, social and other support to his children and his family. Accordingly, I am satisfied that the Tribunal considered and addressed the applicant’s arguments, even though it did not refer to every line of the representations made by the applicant or every item of evidence adduced by him or on his behalf. In this regard, it is also relevant in my view that the Tribunal in fact found that it was in the best interests of the children that the applicant remain in Australia.

107    I also do not consider that there was any jurisdictional error committed by the Tribunal in its erroneous statement that there was no evidence to corroborate that the applicant’s former partner had made an application to vary the relevant AVO. There was a document in the materials indicating that the applicant’s partner had made an application to vary the AVO. However, both the applicant’s Counsel and the Minister’s Counsel accepted in argument before me that there was no evidence that the AVO had, in fact, been varied. Thus, all there was before the Tribunal was an application to vary the AVO which made no difference to the AVO remaining in place. In those circumstances, I do not consider this error of fact to have been of any moment, let alone jurisdictional. As is apparent from the Tribunal’s reasons at AAT [106]-[110], the Tribunal considered the limitations of the contact that the applicant had with his children by reason of the AVO remaining in place, and the prospect of the applicant acting in breach of the AVO. This was the correct factual position, even though an application had been made to vary the AVO.

108    For these reasons, Ground 5 fails.

G.    DISPOSITION

109    In light of the above reasons, the application should be dismissed with costs.

Associate:

Dated:        19 July 2024