Federal Court of Australia

Rana v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 1002

ORDERS

THE COURT ORDERS THAT:

1.    The application for judicial review be dismissed.

2.    The application pay the first respondent’s costs of the application to be fixed on a lump sum basis.

3.    By 4.30pm (AWST) on 16 September 2024, the parties file any agreed proposed minute of orders fixing a lump sum in relation to the first respondent’s costs.

4.    In the absence of any agreement being reached, the determination of an appropriate lump sum figure for the first respondent’s costs be referred to the Registrar.

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

REASONS FOR JUDGMENT

FEUTRILL J:

Introduction

1    The applicant applies for judicial review of a decision of the second respondent (Tribunal) affirming a decision of a delegate of the first respondent (Minister) not to revoke the mandatory cancellation of the applicant’s former visa under s 501CA(4) of the Migration Act 1958 (Cth). The substantive issue raised in the proceeding is whether the Minister (through the Tribunal) failed to form the state of satisfaction s 501CA(4) mandates because his reasoning was irrational with respect to findings that the Tribunal made that affected the weight afforded to the ‘primary consideration’ - the best interests of the applicant’s Australian children and his Australian step-child - which the Tribunal was bound to take into account in evaluating if there was ‘another reason’ the original decision should be revoked. Another issue is whether the Minister failed to consider the financial support that the applicant would be able to provide to the victim of the applicant’s offending when considering the ‘other consideration’ - the impact of the decision on that victim - which the Tribunal was also bound to take into account in evaluating if there was ‘another reason’ the original decision should be revoked.

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

Background

3    The applicant is a citizen of the Islamic Republic of Pakistan. He was formerly the holder of a Partner (Residence) (class BS) (subclass 801) visa. He was eligible for that visa because he was married to an Australian citizen. However, on 21 April 2022 the applicant was convicted of the offence of causing bodily harm with intent and sentenced to a term of imprisonment of three years and three months. The victim of his offence was his former wife. The offence was violent and witnessed by at least two minor children. As a consequence of the conviction and sentence, the applicant’s visa was mandatorily cancelled under s 501(3A) of the Act. The applicant requested the Minister to revoke the cancellation under s 501CA(4) of the Act. A delegate of the Minister refused to do so. The applicant requested a review of the delegate’s decision by the Tribunal under s 500(1)(b) of the Act. On 23 May 2023 a member of the Tribunal affirmed the delegate’s decision and gave reasons for his decision (T).

4    Section 501CA(4) of the Act provides, amongst other things, that the Minister may revoke the original decision to cancel the visa if the Minister is satisfied that there is ‘another reason’ why the original decision should be revoked. The Minister’s powers may be delegated to another person under s 496 of the Act. In the case of a decision not to revoke the cancellation of a visa made under s 501CA(4), s 500(1)(ba) of the Act provides that an application may be made to the Tribunal for review of the delegate’s decision. Section 499(1) of the Act provides that the Minister may give written directions to a body or person having functions or powers under the Act. In this case, the Minister had exercised that power and, relevantly, had made Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA. By s 499(2A) the delegate and the Tribunal were bound to comply with Direction 99.

5    The purpose of Direction 99 is to guide decision-makers in performing functions or exercising powers under s 501 and 501CA of the Act. The direction requires decision-makers to take into account certain primary and other considerations set out and described in the direction when evaluating, amongst other things, whether there is ‘another reason why the original decision should be revoked’ for the purposes of s 501CA(4)(b)(ii) of the Act.

Applicable legal principles

Irrational jurisdictional fact-finding

6    Relying on EHF17 v Minister for Immigration and Border Protection [2019] FCA 1681; 272 FCR 409 at [44], [59]-[61] (Derrington J) and AJN23 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 130 at [26] (Kennett J) the applicant submits that the state of satisfaction (or non-satisfaction) of the Minister that s 501CA(4)(b)(ii) requires is a precondition to the exercise of a discretion in s 501CA(4) to revoke the cancellation of a visa and, as such, is a ‘jurisdictional fact’. The Minister accepts that the relevant state of satisfaction is a jurisdictional fact. Although EHF17 and AJN23 concerned states of satisfaction under different provisions of the Act, the Minister’s concession was appropriate and well-made because the state of satisfaction s 501CA(4)(b)(ii) requires is a precondition to the exercise of power and a jurisdictional fact: Ali v Minister for Home Affairs [2020] FCAFC 109; 278 FCR 627 at [39]-[49] (Collier, Reeves and Derrington JJ); Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 125; 285 FCR 187 at [24] (Katzmann, Derrington and O’Bryan JJ); Guclukol v Minister for Home Affairs [2020] FCAFC 148; 279 FCR 611 at [16] (Katzmann, O’Callaghan and Derrington JJ).

7    It was not in issue that non-compliance with Direction 99 may constitute jurisdictional error. That is, a failure to comply with the direction’s express requirements as to the considerations to be brought into account and the manner in which those considerations are to be weighed in deciding whether to revoke a visa cancellation would be jurisdictional: see, FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 19 at [6] (O’Callaghan and Colvin JJ). The precise nature of the ‘jurisdictional error’ need not be explored. Assuming that Direction 99 applies to the formation of the state of satisfaction s 501CA(4)(b)(ii) requires, if a delegate or the Tribunal fails to comply with the express requirements of the direction as to the considerations to be brought into account and the manner in which those considerations are to be weighed, the state of satisfaction (or more accurately, non-satisfaction) would not be formed in accordance with the Act. As a condition precedent to the exercise or non-exercise of power under s 501CA(4), the jurisdictional fact is a criterion upon which the exercise of that power is conditioned. Thus, failure to form the state of satisfaction (or non-satisfaction) according to law may result in jurisdictional error: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; 207 ALR 12 at [37] (Gummow J) citing Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; 211 CLR 540 at [183] (Gummow and Hayne JJ); see, also, EHF17 at [51]-[56].

8    There is a conceptual difference between the formation of a state of satisfaction as a precondition to the exercise of power and the exercise of power once the precondition is met. The exercise of power may also involve formation of states of satisfaction or opinion or other kinds of evaluative judgments, but formation of those states of satisfaction are not preconditions to the exercise of power because they are involved in the actual exercise of the power. As Derrington J explained in EHF17, the conceptual distinction is important and has implications for the proper approach to the identification of ‘jurisdictional error’; namely, whether the error involves ‘subjective jurisdictional fact error’ or ‘jurisdictional error’ in the exercise of power after any precondition to the exercise of power is met: EHF17 at [57]-[61]. The difference has particular significance where the asserted error involves fact-finding. Where it is asserted that a decision-maker has made an error in fact-finding in the exercise of power, in the absence of no evidence in support of the finding, such ‘intra-mural’ fact-finding is not generally subject to judicial review as it involves ‘merits review’: Australian Broadcasting Tribunal v Bond [1990] HCA 33; 170 CLR 321 at 355-357. However, apprehensions about ‘merits review’ assume that there was jurisdiction to embark upon determination of the merits. Thus, the same degree of caution as to the scope of judicial review does not apply where the question is whether the jurisdictional threshold has been crossed: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at [37]-[38] (Gummow A-CJ and Kiefel J); see, also, EHF17 at [62]-[64].

9    For present purposes it was common ground that irrational or illogical fact-finding resulting in satisfaction or non-satisfaction of the criterion in s 501CA(4)(b)(ii) of the Act is subject to judicial review for jurisdictional error. The parties accepted that the explanation of the principles applicable to irrational or illogical jurisdictional fact-finding of Derrington J in EHF17 is correct. Relevantly, a subjective jurisdictional fact does not exist if it is founded upon findings or inferences of fact which were not supported by some probative material or could not be supported on logical grounds: Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; 197 CLR 611 at [145], [147] (Gummow J); Re Minister for Immigration and Multicultural Affairs; Ex parte S20/2002 [2003] HCA 30; 198 ALR 59 at [34]-[37], [52] (McHugh and Gummow JJ); SGLB at [38] (Gummow and Hayne JJ); SZMDS at [40] (Gummow A-CJ and Kiefel), [102]-[105], [121]-[131] (Crennan and Bell JJ). As Derrington J explained, that formulation of the principle taken from the judgment of Gummow J in Eshetu operates at two levels in the evaluative process. First, findings or inferences of fact not supported by probative material or not based on logical grounds will result in an error in determining whether the decision-maker is or is not satisfied of the statutory criterion. Second, where the facts are apparent or established an irrational or illogical state of mind based on those facts will result in error: EHF17 at [75]. In this case, the applicant asserts error at the first level in the evaluative process.

10    After surveying the relevant authorities, Derrington J summarised the prevailing state of the authorities concerning irrational or illogical jurisdictional fact finding as follows in EHF17.

84    The prevailing view on the above authorities indicates that the assessment of the fulfilment of a subjective jurisdictional fact is, in essence, a matter of whether the state of mind of a designated person accords with that which the legislature requires, and that it is reached in accordance with the implicit requirements of, inter alia, an absence of illogicality or irrationality, and it is not based upon illogical fact finding. If the state of mind actually reached by the repository of power could be reached by a logical or rational person on the same material and complies with the other requirements, it is a state of mind which will enliven the relevant power. That will be so even where the probative evidence can support different reasoning processes by logical or rational people resulting in a different conclusion. But, if the actual state of mind reached was arrived at by a path which was illogical and irrational, the required state of mind will not have been attained. That remains so even if there were an alternative path to the same conclusion, because the state of mind will not have been formed in accordance with the implicit requirements of the Parliament. In other words, Parliament can be taken to have required that the person who may be affected by the exercise of power founded upon the subjective jurisdictional fact is only to be so affected where the exercise is preceded by the formation of a state of mind in the manner required. It can be fairly assumed that the Parliament intended the person is to be given the chance of a favourable outcome (at least in the sense of overcoming the initial jurisdictional hurdle) by the repository’s engagement in a process that is not illogical or irrational. Even where the application of logic and rationality might permit of diverse outcomes, it is difficult to accept the Parliament intended that the pre-requisite to the exercise of power could be satisfied through a capricious process. In simple terms, if the state of mind is reached by the toss of a coin, it will not satisfy the subjective jurisdictional fact even if, through a proper evaluation of the evidence and appropriate reasoning, the same conclusion could be reached. The process by which the subjective jurisdictional fact is reached is important. That is especially so in provisions such as s 65 of the Act where the formation of a state of mind actually dictates the exercise of statutory power.

85    A similar approach applies in relation to the examination of the factual findings by the repository of power. If there is only one conclusion which can be drawn from the material before the person whose state of mind is relevant, a conclusion to the contrary will be illogical and not based on probative material. However, where there is room for logical persons to reach the finding actually reached by the repository of power, the state of mind formed is effective. Some doubt remains as to the circumstances in which an alleged inadequacy of material to support a finding of fact by the repository of power will suffice to vitiate the state of mind formed. In S20/2002, McHugh and Gummow JJ suggested that the decision in [R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Company Pty Ltd (1953) 88 CLR 100] supported the view that inadequacy of material to support a finding was, alone, insufficient to warrant the grant of a writ of prohibition, but it may support an inference that the wrong test is being applied or the repository of power is not in reality satisfied of the requisite matters.

11    Derrington J went on to observe that there are constraints on review of the process by which the state of mind was reached.

86    In D’Amore v Independent Commission Against Corruption [2012] NSWSC 473, McClelland CJ (at [87]) observed that, when considering the question of illogicality or irrationality, it is important to keep steadily in mind that the reasons of a decision-maker should not be over-scrutinized:

A reviewing court must also bear in mind that the decision-maker’s reasons “are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed”: Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at [31]. The concern is with the overall strength of the defendant’s reasoning, not the adequacy or completeness of the defendant’s expression of its reasons.

87    In addition, care must be taken not to conflate administrative fact finding with that which occurs in a curial setting. In Eshetu, Gummow J (at [143]) referred to the observations of the joint judgment in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 282 (Wu Shan Liang):

Where facts are in dispute in civil litigation conducted under common law procedures, the court has to decide where, on the balance of probabilities, the truth lies as between the evidence the parties to the litigation have thought it in their respective interests to adduce at the trial. Administrative decision-making is of a different nature (Mahon v Air New Zealand Ltd [1984] AC 808 at 814). A whole range of possible approaches to decision-making in the particular circumstances of the case may be correct in the sense that their adoption by a delegate would not be an error of law.

88    It follows that an assessment of the reasoning of a repository of power as to the ultimate conclusion or as to fact finding ought not to proceed in the manner in which an appeal by way of rehearing would.

12    Further, it is important to emphasise that not every lack of rationality or lapse of logic results in an error in subjective jurisdictional fact-finding. In SZMDS (at [130]-[131]) Crennan and Bell JJ characterised the nature of the required error as follows:

130    In the context of the Tribunal’s decision here, “illogicality” or “irrationality” sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is “clearly unjust” or “arbitrary” or “capricious” or “unreasonable” in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.

131    What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.

13    Describing reasoning as irrational, unreasonable or illogical must be more than a mere emphatic way of expressing disagreement with it: Eshetu at [40] (Gleeson CJ and McHugh J). Likewise, it must mean more than that, on the material before the decision-maker, the court would (or would not) have reached the required state of satisfaction: S20/2002 at [9] (Gleeson CJ). In short, to meet the description of illogical, irrational or unreasonable reasoning in the relevant sense it must be a process of reasoning that results in the equivalent of an arbitrary or capricious decision.

Failure to consider unarticulated representations that clearly emerge on the materials

14    Relying on Doves v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 134 at [45] (Nicholas, Thomas and Downes JJ), in substance, the applicant submits that the Tribunal may make a jurisdictional error if it fails to consider a claim that emerges from the materials and that claim is based on established facts. Doves concerned an appeal from a judgment dismissing an application for judicial review of a decision of the Tribunal affirming a decision of a delegate not to revoke the cancellation of a visa under s 501CA(4) of the Act. The appellant in Doves contended that the Tribunal had failed to consider certain ‘health issues’ that the Tribunal was required by the then applicable Direction to take into account. Amongst other things, the Court was of the view that the appellant’s health issues could not be described as an unarticulated claim which had clearly emerged from the Tribunal’s findings and the materials before it and said:

45    That is because, in order to clearly emerge from the materials, an unarticulated claim must be based on “established facts”: AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503; [2018] FCAFC 89 (Collier, McKerracher and Banks-Smith JJ) at [18]. Having regard to the materials before the Tribunal, including the appellant’s oral evidence, no health issue based on established facts could be said to have clearly emerged in this case. Further, having regard to the lack of evidence adduced by the appellant before the Tribunal, and the answers given by him on the Personal Circumstances Form, any such articulated claim was obscure and uncertain.

15    The Minister does not take issue with the applicant’s reliance on Doves or his characterisation of the proposition for which that judgment is authority. I accept, notwithstanding the importance of a former visa-holder’s representations to the exercise of the power under s 501CA(4) and the manner in which a decision-maker is required to ‘consider’ those representations as explained by the majority of the High Court in Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; 275 CLR 582 at [22]-[27], if an unarticulated ‘representation’ clearly emerges from the materials before the Tribunal and that representation is relevant to a consideration that the Tribunal is required to take into account in compliance with Direction 99, failure to take that representation into account may result in jurisdictional error: Uelese v Minister for Immigration and Border Protection [2015] HCA 15; 256 CLR 203 at [64]; FHHM at [6] (and the authorities there cited).

16    However, a conclusion that an unarticulated ‘representation’ clearly emerges from the materials is not made lightly and must ‘clearly’ emerge from ‘established facts’. Further, understanding whether a claim emerged from the materials cannot be assessed in a vacuum. Consideration must be given to the way the applicant’s claims were presented over time: AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89; 261 FCR 503 at [18] (Collier, McKerracher and Banks-Smith JJ). Moreover, in general, what is required is the reality of consideration by the decision-maker having regard to the importance of the applicant’s representations, the centrality or materiality of the representations (or evidence) to the exercise of the decision-maker’s function and the seriousness of any error: KXXH v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 111; 292 FCR 15 at [46]-[54] and the authorities there cited.

17    In DWN027 v Republic of Nauru [2018] HCA 20; 355 ALR 238 (at [17], [21]) the High Court emphasised that a decision-maker’s obligation to go beyond the case articulated by an applicant is confined to unarticulated claims which are apparent on the face of the material before the decision-maker. The Court noted that ‘the decision of the decision maker must be considered in light of the basis on which the application was put before the decision maker and not upon some entirely different basis that may only occur to the [applicant’s] lawyers at this later stage of the process’. The Court cited, with approval, (at [17]) the following observations of Kirby J in Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 26; 197 ALR 389 (at [78]) (footnotes omitted):

[78]    The second relates to the function of the Tribunal and of the Federal Court. The Full Court correctly noted the degree of latitude that would be shown to a person such as the applicant representing himself without legal assistance. It recognised that he did not have to pick the correct Convention "label" to describe his plight. The Tribunal acts in a generally inquisitorial way. This does not mean that a party before it can simply present the facts and leave it to the Tribunal to search out, and find, any available basis which theoretically the Act provides for relief. This Court has rejected that approach to the Tribunal’s duties. The function of the Tribunal, as of the delegate, is to respond to the case that the applicant advances. A fortiori this is the function of the Federal Court in determining any application to it for judicial review of a decision of the Tribunal.

18    As the Full Court observed in AXT19 v Minister for Home Affairs [2020] FCAFC 32 (at [56]):

56    Considerable caution needs to be exercised in resolving an argument that a claim has been made in sufficiently clear terms that it should in turn be considered by the Tribunal. The greater the degree of clarity in which a claim has been made and advanced for consideration, the greater may be the need for the Tribunal to consider the claim in clear terms. Conversely, the more obscure and less certain a claim is said to have been made, the less may be the need for the Tribunal to consider the claim. The need for caution arises lest a reviewing Court is propelled from its sole task of undertaking judicial review and into the murky waters of impermissible merits review. The task of a court undertaking judicial review is not to elevate a statement that may have been made in passing by a claimant into a clearly articulated claim in need of resolution. For a Court undertaking judicial review to engage in such a process has all the dangers of the Court resolving a different factual case to the one advanced to the Tribunal and thereby trespassing into merits – and not judicial – review.

Tribunal decision

19    The Tribunal identified the issues as whether the applicant passed the character test and, if not, whether it was satisfied that there is another reason why the decision to cancel the applicant’s visa should be revoked: T [11]. The Tribunal directed itself to the relevant provisions of the Act and that it was required to comply with Direction 99 and set out and summarised relevant parts of that Direction: T [18]-[34]. The Tribunal found that the applicant did not pass the character test: T [35]-[38]. The Tribunal then turned to consider each of the primary and other considerations referred to in Direction 99: T [39]-[221]. The Tribunal then evaluated the various considerations and concluded that the correct and preferrable decision was to affirm the decision under review: T [222]-[235].

20    The Tribunal’s consideration of the primary consideration in para 8.4 (Best interests of minor children in Australia affected by the decision) and the other consideration in para 9.3 (Impact on victims) is relevant to these proceedings.

21    Paragraph 8.4 of Direction 99 provides, relevantly:

8.4    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.

…

(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.

22    The applicant’s representations identified six minor children affected by the decision. Two were his biological children he had with the victim of his offence and one other was his step-son and biological child of the victim. The biological father of that child was absent and the applicant evidently considered himself to be that child’s father although he had not formally adopted him. Three other children were his nieces and daughters of the applicant’s brother. All children were Australian citizens and reside in Australia: T [126]-[127], [133]-[134], [139], [156], [158]-[160].

23    As to his biological children, the Tribunal said (at T [143]-[155]):

143.    The evidence indicated that the Applicant was involved in caring for the children prior to his offence, including during a period of separation from his ex-wife. His contact with the children has included a period where it appears he abided by the constraints of a [violence restraining order (VRO)] and supervised contact. The information before the Tribunal suggests he did so in a respectful and child-centred manner which is to his credit.

144.    The Tribunal accepts that the Applicant has been involved in the children’s lives since their birth and that he desires to rebuild a relationship with them and support them financially and emotionally in the future. There was evidence that he was financially supporting the family prior to his offence when he had been working and continued to provide financial support after the offence while in the community. The Tribunal accepts this commitment is genuine and that the Applicant’s work history suggests he is able to maintain employment and provide for his children. Again, this is to his credit.

145.    The Tribunal accepts the Applicant shared caring responsibilities for the children with his ex-wife prior to his offence and has had more limited contact with them prior to his incarceration. He has had no contact with them for two years and limited physical contact for the two years prior. That separation is not insignificant given the children’s relatively young ages.

146.    The Tribunal finds there was a strong bond with the children, particularly with Ms A with whom he has had a closer in person relationship prior to imprisonment. The Tribunal notes that the children are still very young and there are a significant number of years before they turn 18, during which time the Applicant could make a positive contribution to their lives if he is permitted access to the children on a regular basis.

147.    However, at this point the frequency and nature of the Applicant’s future contact with the children is largely speculative. Even if the Applicant is granted access similar to that which he enjoyed immediately prior to going to prison this was limited to twice monthly in person visits and phone/video contact. Much of the regular phone and video contact appeared to be facilitated by Ms Larsen. It is not clear the degree to which she would be willing to facilitate such contact in the future noting that while she has consented to a change in the VRO to allow mediation, she did not oppose the imposition of the VRO when it was imposed and has not facilitated or initiated contact between the children and the Applicant in two years. The Tribunal accepts that was a choice she was entitled to make in all the circumstances.

148.    There is evidence that the Applicant’s prior conduct has had a negative impact on the children. There is evidence of family violence and evidence that Ms A has suffered emotional trauma arising from the Applicant’s conduct. Ms A was a witness to part of the family violence incident involving her mother. Ms Larsen’s victim impact statement refers to the children having nightmares, including Ms A being unable to move for fear with nightmares sometimes being triggered at school. There was no specific evidence as to any impact on Mstr M who was asleep or in his bedroom at the time of the assault.

149.    While the Tribunal accepts the duration of the incident was short, it does not accept that the impact of witnessing even a small part of the violence described in the Sentencing Remarks and the aftereffects on her mother, would not have been significant for Ms A. The Tribunal accepts the Sentencing Judge’s finding that he was not satisfied the Applicant intended for the children to witness the attack. However, in the Tribunal’s view, it is still significant that he placed them in a position where they could be and were exposed to witnessing this kind of violence against their mother.

150.    As noted above, the Tribunal has found there is a low risk of the Applicant reoffending, though this is contingent on further family violence rehabilitation and mental health treatment being undertaken. The lowering of the Applicant’s risk is due in part to his efforts at rehabilitation and he is to be commended for that. The Tribunal also found his remorse at the damage he did to his family and to his children to be genuine and while he may underestimate the long-term work which would be required to rebuild his relationship with the children, the Tribunal does not doubt that desire is genuine.

151.    Given the Applicant has maintained contact with his children in part through electronic means in the past, the Tribunal finds that there is no reason why that could not continue if he were to be removed to Pakistan and Ms Larsen agreed to contact. The Tribunal accepts that Ms Larsen may not agree and that it may be more difficult for the Applicant to achieve agreement or orders to allow contact if he is removed. The Tribunal also accepts that contact via electronic means is not a substitute for personal contact, particularly given the children’s relatively young age and the fact that they have already suffered an extended separation from their father.

152.    There are no known views of the children other than those recorded in the Relationships Australia observations. There was also an ‘All About My Dad’ drawing from September 2020 which appeared to have been written by Ms A. The Tribunal does not accept that those record the known views of the children regarding the impact of the Cancellation Decision on them. However, the Tribunal accepts based on the material before it that Ms A and Mstr M love their father, have a strong bond with him and are likely to desire contact with him and would be negatively impacted if the Cancellation Decision is not revoked.

153.    The Tribunal accepts that if the Applicant were to remain in Australia, he would aim to be involved in the children’s lives as he has in the past, supporting the children’s emotionally physically, and financially. The degree to which he can do so is dependent on the position of Ms Larsen, at least initially. However, there is no reason on the evidence before the Tribunal, that the Applicant could not continue to provide financial support were he removed to Pakistan, once he has established himself and obtained employment. The Tribunal notes that the information before the Tribunal suggests the children have the care and protection of their mother and the support of extended family members, including their maternal family members who are in Australia.

154.    The Tribunal accepts that Ms Larsen and the children are Australian citizens and that they will likely remain in Australia indefinitely. The Tribunal also considers it likely that whatever parenting arrangements are agreed or imposed, they would not include the children being permitted to depart to Pakistan without Ms Larsen’s consent. While she has consented to the children travelling overseas in the past, that was prior to the separation and offending and the Tribunal considers it unlikely she would agree to such travel in the foreseeable future. These factors mean opportunities for physical contact with the children would be limited for the foreseeable future if the Applicant is removed.

155.    The Tribunal considers that the best interests of the Ms A and Mstr M weigh in favour of the Cancellation Decision being revoked, though slightly less weight is to be afforded to this consideration in circumstances where the Applicant engaged in family violence which was witnessed by Ms A in the past and where the degree of contact with the children in the future remains uncertain.

(Footnotes omitted.)

24    As to his step-son, the Tribunal said (at T [164]-[173]):

164.    As noted above, the Tribunal has found there is a low risk of the Applicant reoffending, though this is contingent on further family violence rehabilitation and mental health treatment being undertaken. The lowering of the Applicant’s risk is due in part to his efforts at rehabilitation and he is to be commended for that. The Tribunal also found his remorse at the damage he did to his family and to Mstr L to be genuine. He understands his relationship with Mstr L is damaged but seemed to minimise his decision not to have in person contact for the majority of the period it was available. Notwithstanding this, the Tribunal accepts his desire to have a parental relationship with Mstr L is genuine.

165.    The Tribunal accepts that the Applicant has been involved in Mstr L’s life since a young age. There was evidence that he was financially supporting the family prior to his offence when he had been working, and Ms Larsen had been largely caring for the children full-time. He continued to provide financial support after the offence while in the community. The Tribunal accepts this commitment is genuine and that the Applicant’s work history suggests he is able to maintain employment and provide for his children. Again, this is to his credit.

166.    The Tribunal accepts the Applicant shared caring responsibilities for Mstr L with his ex-wife prior to his offence and has had limited contact with him prior to his incarceration. He has had no physical contact with him for the three years prior. That separation is not insignificant particularly given it appears to be driven in early part by a choice of Mstr L.

167.    The Tribunal finds there was a strong bond with Mstr L prior to the offence. The Tribunal notes that there are still several important teen years before Mstr L turns 18, during which the Applicant could make a positive contribution to his life if he is permitted to do so and if Mstr L desires it.

168.    However, at this point the frequency and nature of the Applicant’s future contact with Mstr L is largely speculative. It is not clear the degree to which Mstr L desires contact or if Ms Larsen would be willing to facilitate it in the future.

169.    Given the Applicant has maintained contact with his children in part through electronic means in the past, the Tribunal finds that there is no reason why that could not continue if he were to be removed to Pakistan and Ms Larsen agreed to contact. The Tribunal accepts that Ms Larsen may not agree to contact and that it may be more difficult for the Applicant to achieve agreement or orders to allow contact if he is removed and that the likelihood of such orders without Ms Larsen’s consent with respect to Mstr L is low. The Tribunal also accepts that contact via electronic means is not a substitute for personal contact.

170.    There are no known views of Mstr L other than those recorded in the Relationships Australia observations which do not refer to him explicitly other than that he only attended two sessions. The Tribunal does not accept that those record the views of Mstr L in this context. The Tribunal does not accept on the information before it that it can be inferred Mstr L would welcome contact with the Applicant.

171.    The Tribunal accepts that if the Applicant were to remain in Australia, he would aim to be involved in Mstr L’s life as he has in the past, and support him emotionally, physically, and financially. However, the degree to which he can do so is dependent on the position of Ms Larsen and likely Mstr L. The Tribunal notes that the information before the Tribunal suggests Mstr L has the care and protection of his mother and the support of extended family members, including his maternal family members who are in Australia.

172.    The Tribunal accepts that Ms Larsen and Mstr L are Australian citizens and that they will remain in Australia indefinitely. The Tribunal also considers it likely that Mstr L would not be permitted to depart to Pakistan without Ms Larsen’s consent, nor that she would grant such consent noting there does not appear to be any custodial relationship with respect to Mstr L. These factors mean opportunities for physical contact with Mstr L would be limited if not impossible if the Applicant is removed.

173.    On balance, the Tribunal considers that the best interests of Mstr L weigh in favour of the Cancellation Decision being revoked on the basis that this leaves open the possibility of Mstr L having a relationship with the Applicant should he wish to do so and should his mother determine it is in his interest. However, the Tribunal affords significantly less weight to this consideration in circumstances given the history of family violence and the uncertainty surrounding Mstr L’s desire for future contact.

25    After considering the applicant’s nieces (T [174]-[183]), the Tribunal concluded that the best interests of his biological children weighed strongly in favour of revocation. The best interest of his step-son weighed moderately in favour of revocation and the interest of his nieces weighed slightly in favour of revocation. However, overall that primary consideration weighed strongly in favour of revocation: T [184].

26    Paragraph 9 of Direction 99 provides:

9.    Other considerations

(1)    In making a decision under section 501(1), 501(2) or 501CA(4), the considerations below must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):

a)    legal consequences of the decision;

b)    extent of impediments if removed;

c)    impact on victims;

d)    impact on Australian business interests

…

9.3    Impact on victims

(1)    Decision-makers must consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.

…

27    Regarding the other considerations, the Tribunal’s reasons record that the Minister contended that they all weighed neutrally in the applicant’s case. In the applicant’s written submissions his legal representative contended that none of them was directly relevant to the applicant’s case and accordingly they were not addressed in his submissions. At the oral hearing the applicant’s legal representative confirmed that no specific submissions were made with respect to the other considerations and that the applicant agreed with the Minister’s contention that they all weighed neutrally in the applicant’s case: T [196]-[197]. Nonetheless, the Tribunal went on to consider each of the other considerations based on the material before it.

28    Regarding the impact on victims, the Tribunal said:

219.    The Applicant’s ex-wife, Ms Larsen, was the victim of his offence. Material before the Tribunal included a victim impact statement and a recorded summary of her comments to authorities in the context of consideration of the Applicant’s parole. Ms Larsen has a lifetime VRO in place for her protection. Information before the Tribunal suggests she recently agreed to this being varied to allow for mediation with the Applicant, however no such mediation has yet been agreed. As discussed earlier, it was submitted the Tribunal should infer from this that Ms Larsen is open to a parenting agreement in relation to the children. However, for the reasons outlined above, the Tribunal does not consider that inference should be drawn from the material before it.

220.    Ms Larsen’s views on the impact that the Cancellation Decision would have on her and her family members are not known. In such circumstances, and having regard to the submissions made by the Respondent and Applicant regarding this consideration, the Tribunal gives neutral weight to this consideration in the Applicant’s circumstances.

(Footnotes omitted.)

29    In the course of evaluating the various considerations the Tribunal said:

232.    The weighing exercise in the Applicant’s case is not an easy one. The Tribunal has acknowledged his attempts to rehabilitate and accepts that he regrets his offending. The Tribunal also accepts he wishes to be involved again in his children’s lives and wants to make amends for the impact his offending has had on them. However, the Applicant engaged in a serious assault on his former partner, without provocation. He did so in the presence of his children. Family violence of that kind is something the community has little tolerance for, as reflected in the explicit terms of Direction No 99.

233.    Having weighed the considerations, the Tribunal considers that the primary considerations of the protection of the Australian community, family violence and the expectations of the Australian community, which all weigh strongly or very strongly against revocation of the Cancellation Decision, outweigh the other primary considerations of the strength, nature and duration of ties and the best interests of the children impacted by the decision. They also outweigh the impediments the Applicant would face on return to Pakistan.

234.    Accordingly, the Tribunal finds the correct or preferrable decision is to affirm the decision under review.

Grounds of review

30    There are two grounds of review in the applicant’s amended substituted originating application. Relevantly, after withdrawing or not pressing part of the particulars, the grounds are expressed as follows:

1.    The second respondent’s decision was irrational.

Particulars

a.    The second respondent significantly reduced the weight afforded to the best interests of [the applicant’s step-son] and slightly reduced the weight to be afforded to the best interests of [his biological children] because of … the uncertainty surrounding [his step-son’s] desire for future contact (Uncertainty Finding): at [173].

…

Uncertainty Finding

d.    In making this finding the second respondent erroneously found that the applicant’s contact with [the children] was dependent on [the victim’s] agreement and [the step-son’s] desire: at [147] and [167]-[168] and [173].

e.    This conclusion was erroneous because the applicant was able to seek to orders in relation to [the children] under Pt VII, Div 6 of the Family Law Act 1975 (Cth).

2.    The second respondent failed to consider the impact of the decision on the victim under paragraph 9.3 of Direction 99.

Particulars

a.    Ms L was the victim of the applicant’s offending.

b.    [The step-son’s] biological father did not have any involvement in his life: at [156] and [160].

c.    The applicant is the biological father of Ms A and Mstr M: at [126].

d.    The second respondent did not consider that if the cancellation of the applicant’s visa was revoked then [the victim] may have been able to obtain financial support from the applicant in relation to [the children] (i.e., child support payments under the Child Support (Assessment) Act 1989 (Cth) or a maintenance order under s 66M of the Family Law Act 1975 (Cth)).

Was the conclusion about uncertainty of future contact with children irrational?

31    As ground 1 was developed in the applicant’s written and oral submissions it expanded, without objection from the Minister, to capture findings about uncertainty the Tribunal made at T [173] (addressing his step-son) and at T [155] (addressing his biological children). The ground was also expanded to include findings the Tribunal made about dependency on the position of the victim at T [153] (concerning his biological children).

32    As the ground came to be formulated, the applicant submits that the Tribunal reduced the weight afforded to the primary consideration in para 8.4 of Direction 99 (Best interests of minor children in Australia affected by the decision) in circumstances where the degree of contact that the applicant will have with the children in the future, if he remains in Australia, is uncertain: T [155], [173]. The applicant submits that the Tribunal found that the degree of future contact with the children was uncertain because the Tribunal reasoned that future contact was dependent solely on the co-operation of the victim: T [147], [153], [167]-[168]. That uncertainty reduced the weight afforded to the best interests of those children: T [155], [173]. The applicant submits that although, regarding his step-son, the Tribunal only refers to uncertainty regarding the child’s desire to have contact with him, the reasons as a whole disclose that the Tribunal considered the victim’s co-operation critical.

33    Relying on s 65C(a) and s 65C(c) of the Family Law Act 1975 (Cth) and Batkin and Anor & Bagri and Anor [2019] FamCA 979 at [35] citing Mankiewicz and Anor & Swallow and Anor [2016] FamCAFC 153 at [10] (Ryan and Austin JJ), the applicant submits that the Tribunal’s conclusion was ‘wrong’ because he had standing to apply for parenting orders and a court may grant him access to the children even if the victim is uncooperative or opposes such access. The applicant characterises the asserted error as irrational because future contact with the children was manifestly not solely dependent on the co-operation of his former wife.

34    The applicant submits that it is not necessary for him to demonstrate that the applicant had any intention to apply for parenting orders or that, if an application were made, that it had any particular prospects of success. The applicant submits that the mere fact that parenting orders were a possibility renders the Tribunal’s reasoning that his continuing contact with the children depended solely on the co-operation of the victim manifestly wrong and irrational.

35    The Minister submits that the applicant’s characterisation of the Tribunal’s reasons is incorrect. The Tribunal made no finding or conclusion that the applicant’s continuing contact with the children was uncertain solely because that contact depended on the co-operation of the victim. The Minister submits that the Tribunal’s reasons must be read as a whole and without an eye keenly attuned to error and, when that is done, it is clear that the Tribunal considered that future contact with the applicant’s children was uncertain because there was a violence restraining order (VRO) that restricted or limited the applicant’s ability to contact and interact with the victim and, while she had been willing to co-operate to permit access before his conviction, she had not resisted the grant of the VRO and there had not been contact with the children after he was imprisoned by reason of the VRO. Those findings provide a rational and logical foundation for the Tribunal to conclude that the victim may not co-operate in the future: T [45], [136], [147], [153], [155], [168], [171], [173]. Otherwise, the Tribunal’s reasons do not indicate that it considered that future contact with the children was solely dependent on the victim’s agreement or position. Amongst other things, it was dependent on modification of the terms of the VRO to facilitate co-operation of the victim and, in recognition that the victim’s co-operation was not determinative, the Tribunal noted that ongoing contact was ‘dependent on the position of [the victim], at least initially’: T [153]. The words ‘at least initially’ qualify the reference to dependence and indicate that the position of the victim was not regarded as determinative. I largely accept the Minister’s submissions.

36    It is important to place the various paragraphs of the Tribunal’s reasons upon which the applicant relies into context.

37    After the applicant was convicted of the relevant offence, he became bound by a lifetime VRO made on 13 April 2021: T [45]. Between December 2019 and April 2021 the applicant had contact with the children through a parenting plan agreed with the victim: T [137]. However, the step-son ceased in person contact with the applicant from January 2020: T [159]. The applicant had no contact with the children after he entered prison: T [136]. The applicant was attempting to re-establish contact with the children and the victim had agreed to a variation to the VRO to allow for mediation to take place over access to the children: T [129]. No mediation has taken place or agreement reached: T [219]. The applicant made a submission that the Tribunal should infer from the victim’s willingness to mediate that she is open to a parenting agreement in relation to the children. However, the Tribunal was not satisfied that the inference should be drawn on the material before it: T [219].

38    The Tribunal said that it did not consider that the inference should be drawn for ‘the reasons outlined above’. It also said, ‘[a]s discussed earlier’ it was submitted that the Tribunal should draw the inference: T [219]. The only earlier discussion and reasons outline above on the topic are contained in paragraphs [147], [153], [154], [155], [167], [168], [171] and [173]. Therefore, in context, the Tribunal’s discussion and reasons for concluding that the frequency and nature of the applicant’s future contact with the children is largely speculative (T [147], [168]) is addressing the applicant’s representation and submission to the effect that Tribunal should infer that the victim was ‘open to a parenting agreement in relation to the children’ in the future. It is in that context that the references to ‘dependent on the position of [the victim]’ (T [153]), uncertainty of the ‘degree of contact with the children’ (T [155]), the step-son’s desire for contact or the victim’s willingness ‘to facilitate’ contact with the step-son in the future (T [168]) and ‘the uncertainty surrounding [the step-son’s] desire for future contact’ (T [173]) are to be considered and understood. In that context, the reference to dependence on the victim’s position and her willingness to facilitate contact are not indicative of the Tribunal concluding that future contact was solely dependent on the agreement or position of the victim. These expressions are explanations of the Tribunal’s rejection of the applicant’s representation to the effect that it should be inferred that the victim is willing to facilitate or agree to future contact with the children.

39    The Tribunal reasoned that, at the time of its decision, the frequency and nature of the applicant’s future contact with the children was largely speculative and gave reasons for that conclusion: T [147]. The reasons were that ‘[e]ven if the Applicant is granted access similar to that which he enjoyed immediately prior to going to prison this was limited to twice monthly in person visits and phone/video contact.’ That reasoning implicitly accepts the possibility of future contact, but diminishes its significance by reference to the frequency and nature of future contact assuming it to be similar to that of the past. The Tribunal also reasoned that ‘[m]uch of the regular phone and video contact appeared to be facilitated by [the victim]’ before observing that it was ‘not clear the degree to which she would be willing to facilitate such contact in the future noting that while she has consented to a change in the VRO to allow mediation, she did not oppose the imposition of the VRO when it was imposed and has not facilitated or initiated contact between the children and the Applicant in two years’ (emphasis added). Thus, the reference to speculation is explaining why an inference should not be drawn that the victim will agree or facilitate contact in the future.

40    Later the Tribunal accepted that if the applicant were to remain in Australia he would aim to be involved in the children’s lives as he has in the past, supporting the children emotionally, physically and financially. However, ‘[t]he degree to which he can do so is dependent on the position of [the victim], at least initially’: T [153]. The reference to dependency reflects the Tribunal’s earlier conclusions and discussion (T [147]). Further, it is implicit in the qualification ‘at least initially’ that the Tribunal did not consider that the emotional, physical and financial support of the children is solely dependent on the position of the victim and her agreement or voluntary acts. It plainly leaves open the possibility of the applicant achieving his aims by other means.

41    The Tribunal also accepted that it was unlikely that the children would have contact with the applicant if he were removed from Australia. In that respect the Tribunal reasoned ‘it is likely whatever parenting arrangements are agreed or imposed, they would not include the children being permitted to depart to Pakistan without [the victim’s] consent’ (emphasis added). The Tribunal considered such consent unlikely: T [154]. The reference to ‘imposed’ (T [154]) taken with ‘at least initially’ (T [153]) and rejection of the inference of the victim’s openness to agree a parenting arrangement (T [147]) is a further indication that the Tribunal was aware of the possibility of the imposition of parenting arrangements if the victim were not to agree, initially, to contact between the applicant and the children in the future. Thus, the Tribunal’s conclusion that the ‘degree of contact with the children in the future remains uncertain’ (T [155]) reflected its earlier reasoning that the frequency and nature of any future contact was speculative and dependent to an extent upon whether an agreement could be reached with the victim and, if not, on any parenting arrangement imposed.

42    A fair reading of the Tribunal’s reasons does not reveal that it considered that the frequency and nature of any future contact between the applicant and the children was solely dependent upon the victim’s agreement or position regarding contact. It is implicit, if not explicit, that the Tribunal understood and entertained the possibility of the applicant maintaining contact with children even without the victim’s co-operation, but the degree of that contact was uncertain in the absence of an inference that the victim was open to agreement.

43    Similar reasoning applies to the applicant’s contention that the Tribunal reasoned that future contact with the applicant’s step-son was solely dependent upon whether the victim was willing to facilitate that contact. The Tribunal reasoned that the frequency and nature of future contact with the step-son was speculative in part because it was not clear if the step-son desired contact and in part because it was not clear if the victim would be willing to facilitate that contact: T [167], [168]. The Tribunal made similar observations to those it made about the applicant’s aims and that the degree to which he could support his step-son was ‘dependent on the position of [the victim] and likely [the step-son]’: T [171]. However, the Tribunal gave less weight to the best interests of the step-son because of, amongst another reason, ‘the uncertainty surrounding [the step-son’s] desire for future contact’: T [173]. Therefore, the reasons for considering future contact with the step-son was uncertain were not limited to the victim’s agreement to facilitate contact or position with respect to contact. At least, in part, it was based on the step-son’s desire to maintain contact in the future. Further, while each is a reason for considering the future to be uncertain, neither, in its terms, closes off the possibility of contact continuing for some other reason. Overall, the Tribunal’s discussion and reasons in these paragraphs is directed to rejecting the applicant’s submission that it should be inferred that the victim is open to agreeing a parenting arrangement that included the step-son.

44    It follows that I do not accept that the Tribunal reasoned that uncertainty of future contact with the children was solely dependent on the victim’s agreement or position. Further, even if I had been satisfied that there had been the asserted lapse of reasoning, it was not a lapse of the kind that would render the Tribunal’s conclusion about the uncertainty of future contact irrational or illogical in the sense that it was a ‘clearly unjust’ or ‘arbitrary’ or ‘capricious’ or otherwise ‘unreasonable’ conclusion.

Was there failure to consider an unarticulated representation about victim impact?

45    The applicant submits that the Tribunal failed to consider the financial impact on the victim if the visa cancellation decision was not revoked. The applicant submits that the victim could seek orders for him to provide financial assistance under s 66M of the Family Law Act and Pt 4 of the Child Support (Assessment) Act 1989 (Cth) and her ability to do so would be frustrated (or hindered or made more difficult) if he were removed from Australia. In substance, the applicant submits that the relevant impact on the victim emerged from the materials before the Tribunal as the provisions of the legislation were matters of public record and the Tribunal considered other aspects of the legal rights and obligations between the applicant and the victim regarding the children: T [158], [219]. The applicant submits that the Tribunal was obliged by s 499 and para 9.3 of Direction 99 to take into account that impact on the victim and it failed to do so.

46    In substance, the Minister submits that there were no ‘established facts’ from which the asserted unarticulated representation ‘clearly emerged’. The ability of the victim to apply for financial assistance was not raised and there were no facts from which her potential ability to apply for such assistance was obvious. On the contrary, there were a number of findings of the Tribunal to the effect that there was every reason to expect that applicant would voluntarily provide financial assistance: T [144], [153], [165], [171]. In those circumstances, the need to consider the possibility and potential impact on the victim of attempting to compel financial assistance did not clearly emerge. Again, I largely accept the Minister’s submissions.

47    The Tribunal accepted that the applicant desires to support the children financially in the future and that his work history suggested that he would be able to do so: T [144], [153], [165], [171]. Further, at least in the case of his biological children, the Tribunal said that there was no reason on the evidence before it that the applicant could not continue to provide financial support if he were removed from Australia: T [153]. Although these were conclusions that related to the Tribunal’s consideration of the best interests of minor children, they may be considered to form part of the ‘established facts’ before the Tribunal. On those facts, the need to consider the impact on the victim if the applicant refused to provide financial assistance to her for the children did not emerge clearly or at all.

48    It is also significant that the applicant was represented before the Tribunal, made no submissions concerning the impact on the victim and accepted that all ‘other considerations’ contained in Direction 99 were neutral. While the absence of a submission and the concession about the neutrality of a consideration would not necessarily mean that a failure to take into account material that was clearly relevant to a consideration that the Tribunal was otherwise bound to take into account was not jurisdictional error, those matters are relevant to the obviousness of any unarticulated representation and whether it ‘clearly’ emerged on the materials before the Tribunal. In those circumstances, the counterfactual – that contrary to the applicant’s express representations that he intended to continue providing financial support (and therefore financial assistance to the victim) after his release from prison, the applicant would not provide that support without a court order compelling him to do so – was not a matter that was relevant to the Tribunal’s consideration of the impact on the victim if the applicant were removed from Australia. It was no part of the applicant’s representations to the Tribunal or the Minister’s response that the Tribunal should reject the applicant’s evidence that he intended to continue providing financial support to the children after his release from prison. The Tribunal accepted the applicant’s evidence to that effect. The counterfactual did not arise on the ‘established facts’ or on the issues as the parties defined them for the Tribunal.

Was any error on the part of the Tribunal material?

49    Having regard to the conclusions I have reached on the asserted ‘errors’ of the Tribunal, it is not necessary to consider whether any error was material. However, as the point was raised and argued, for the reasons that follow, if one or both of the asserted errors was made, such an error would be material.

50    In most cases where an error is established the error will only be jurisdictional if it was material to the decision that was made in fact, in the sense that there is a realistic possibility that the decision that was made in fact could have been different if the error had not occurred. The asserted errors in this case are of that character and are not asserted errors of a kind that would be jurisdictional irrespective of any effect that the error might or might not have had on the decision that was made or would be jurisdictional because materiality is inherent in the nature of the error: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12 at [6]-[7]. The question of realistic possibility requires consideration of the basal factual question of how the decision that was made was in fact made. It is then necessary to consider whether the decision that was in fact made could have been different had the relevant condition had been complied with as a matter of reasonable conjecture within the parameters set by the historical facts about how the decision was made. The standard of ‘reasonable conjecture’ is undemanding: Nathanson v Minister for Home Affairs [2022] HCA 26; 276 CLR 80 at [32]-[33], citing MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; 273 CLR 506 at [38].

51    The Minister contends that, having regard to the significant weight that the Tribunal gave to the best interests of minor children in Australia in its process of reasoning, there is no realistic possibility that the Tribunal could have reached a different conclusion even if it was in error in the manner in which it took into account the risk of the applicant re-offending or the uncertainty of the applicant having ongoing contact with the children. As to the impact on victims, the Minister submits, in effect, that frustration of the victim’s ability to obtain financial assistance from the applicant is founded on a series of hypotheticals that render the possibility of frustration speculative. In those circumstances, any error cannot be regarded as material.

52    I do not accept the Minister’s submissions. These submissions tend to overlook the relevant question. Namely, whether as a matter of reasonable conjecture the decision could have been different if there had been compliance with the relevant conditions (a rational process of reasoning or consideration of the frustration of obtaining financial assistance). Rather, the Minister’s submissions focus on the intermediate conclusions that the Tribunal reached in fact and without compliance with the relevant conditions.

53    In FHHM O’Callaghan and Colvin JJ (at [32]-[34]) (Derrington J agreeing, at [56]) endorsed the approach Colvin J described in evaluating and weighing primary and other considerations in Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 at [23], [28] (for the purposes of Direction 65 and Direction 79 that preceded Direction 99). The relevant point for present purposes is that these directions, including Direction 99, make clear that an evaluation is required in each case as to the weight to be given to primary and other considerations and that these are to be given ‘appropriate weight’. As is also clear from FHHM, a decision-maker who undertakes the task of applying Direction 99 may, as the Tribunal has done here, evaluate each of the relevant considerations and engage in a form of ranking the relative significance of each consideration in the course of undertaking the process of weighing them before undertaking an overall evaluation that brings together the relative views reached on each relevant individual consideration. However, as the Full Court observed in CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138 at [28], ‘compliance with the Direction is not achieved by focusing upon individual considerations and attributing some form of “weight” to that consideration viewed in isolation. The real burden of the task to be undertaken by a decision-maker who must comply with the Direction is to bring together the considerations as part of a single evaluation of their relative significance thereby weighing them all together. A task of that kind cannot be performed by fragmenting the consideration into an evaluation of individual considerations, attributing to each of them some form of individual abstract term purporting to be a measure of their significance, and then aggregating by some form of calculus each of those individual assessments. To undertake the task in that manner is not to comply with the Direction.’

54    It follows that the relevant question here is whether if the asserted errors had not been made the relative weight and ranking attributed to the best interests of minor children in Australia or impact on victims could have been different. It is relatively clear that, if the asserted errors had not been made, the Tribunal could have reached a different conclusion about those matters. Once it is recognised that relative weight and ranking could have been different, then it is obvious that, as a matter of reasonable conjecture, the overall evaluative exercise as to whether there was ‘another reason’ for revocation of the applicant’s visa cancellation could have been different. That is particularly evident where, as here, the Tribunal recorded that the ‘weighing exercise’ was ‘not an easy one’: T [232].

Disposition

55    The application for judicial review should be dismissed with costs.

Associate:

Dated:    2 September 2024