Federal Court of Australia

CJO23 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 1228

ORDERS

THE COURT ORDERS THAT:

1.    A writ of certiorari be issued quashing the second respondent’s decision under s 500(1)(ba) of the Migration Act 1958 (Cth) made on 19 September 2023 affirming the decision of a delegate of the first respondent not to revoke the mandatory cancellation of the applicant’s Global Special Humanitarian visa (Class XB) (subclass 202) under s 501CA(4) of the Migration Act.

2.     The matter be remitted to the second respondent for determination according to law.

3.    The first respondent pay the applicant’s costs of the proceeding, to be taxed.

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

REASONS FOR JUDGMENT

FEUTRILL J:

Introduction

1    This proceeding concerns an originating application for judicial review of a decision of the second respondent (Tribunal) made on 19 September 2023 by which it affirmed a decision of a delegate of the first respondent (Minister) made on 26 June 2023 not to revoke the mandatory cancellation of the applicant’s Global Special Humanitarian visa (Class XB) (subclass 202) under s 501CA(4) of the Migration Act 1958 (Cth) (non-revocation decision).

2    There are three main issues in the proceeding. The first relates to the manner in which the Tribunal understood and applied Direction No. 99 – Migration Act 1958 – Direction under section 499 Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA which the Minister had given and the Tribunal was bound to apply under s 499 of the Act. The applicant contends that the Tribunal misunderstood or misapplied an aspect of para 8.3 of Direction 99 (the strength, nature and duration of ties to Australia) and, thereby, failed to give ‘considerable weight’ to the fact that the applicant has been ordinarily resident in Australia during and since his formative years as para 8.3(4)a)i. of Direction 99 required. The second and third issues relate to asserted findings the Tribunal made about the risk and likelihood of the applicant re-offending which was relevant to the Tribunal’s application of para 8.1 (Protection of the Australian community) and para 8.2 (Family violence committed by a non-citizen) of Direction 99. The applicant contends that these asserted findings were not supported by evidence or were unreasonable, illogical or irrational.

3    For the reasons that follow, the applicant should succeed on the first issue and, otherwise, the applicant has not demonstrated that the Tribunal made the asserted findings or that, if made, the Tribunal’s findings of fact were not founded on evidence or were legally unreasonable, illogical or irrational. There will be orders setting aside the Tribunal’s decision and remitting the matter for determination according to law. The Minister should also pay the applicant’s costs of the proceeding.

Legislative framework

4    Section 501(3A) of the Act provides that the Minister must cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the character test, relevantly because of the operation of s 501(6)(a) and s 501(7)(c) (substantial criminal record on the basis of a sentence of imprisonment of 12 months or more), and that the person is serving a sentence of imprisonment on a full-time basis in a custodial institution for an offence against a law of the Commonwealth, State or Territory.

5    Pursuant to s 501(5), the rules of natural justice do not apply to a decision made under s 501(3A). However, s 501CA provides a mechanism by which a person whose visa has been cancelled under s 501(3A) to have that cancellation decision (referred to as the original decision) revoked. Section 501CA(3) provides that as soon as reasonably practicable after making the original decision, the Minister must give the former visa-holder written notice setting out the original decision and particulars of relevant information and ‘invite the person to make representations to the Minister … about revocation of the original decision’. Section 501CA(4) provides that the Minister may revoke the original decision if the person makes representations in accordance with the invitation and the Minister is satisfied, relevantly, that there is ‘another reason’ why the original decision should be revoked.

6    Section 496 of the Act makes provision for the Minister to delegate to a person any of the Minister’s powers under the Act. Decisions under s 501CA(4) are usually made by a delegate of the Minister. In those circumstances, the former visa-holder has a right to request the Tribunal to review a decision to refuse to revoke a cancellation decision: s 500(1)(ba). Subject to certain procedural modifications, a review under s 500(1)(ba) is undertaken by the Tribunal in its general division.

7    In deciding whether there is ‘another reason’ why the mandatory cancellation of a former visa-holder’s visa should be revoked, a delegate of the Minister and the Tribunal are bound, by s 499(2A), to comply with any direction given by the Minister under s 499(1) of the Act. At the time of the Tribunal’s review the Minister had given Direction 99. Direction 99 was made on 23 January 2023 with effect from 3 March 2023. In this case, the Tribunal was bound to comply with Direction 99.

8    Paragraph 5 of Part 1 of Direction 99 contains a preamble that sets out the objectives of the direction. Amongst other things, para 5.1 indicates that the purpose of the direction is to guide decision-makers in performing functions or exercising powers under, relevantly, s 501CA of the Act. In circumstances where a non-citizen does not pass the character test, the decision-maker must consider whether there is another reason to revoke the cancellation given the specific circumstances of the case.

9    Paragraph 5.2 sets out principles that provide the framework within which decision-makers should approach their task of deciding, relevantly, whether to revoke a mandatory cancellation under s 501CA. The factors (to the extent they are relevant in a particular case) that must be considered in making that decision are set out in Part 2 of Direction 99.

10    Paragraph 8 of Part 2 of Direction 99 sets out the primary considerations for decisions under s 501CA. These are: (1) protection of the Australian community from criminal or other serious conduct; (2) whether the conduct engaged in constituted family violence; (3) the strength, nature and duration of ties to Australia; (4) the best interests of minor children in Australia; and (5) expectations of the Australian community. Paragraphs 8.1-8.5 describe the primary considerations in detail and provide guidance to decision-makers as to the manner in which each of these considerations is to be taken into account.

11    Paragraph 9 of Part 2 of Direction 99 sets out the other considerations, being considerations that must be taken into account when a decision is made under s 501CA(4) but are generally given less weight than primary considerations: Direction 99 para 7(2). These are (but are not limited to): a) legal consequences of the decision; b) extent of impediments if removed; c) impact on victims; and d) impact on Australian business interests. Paragraphs 9.1-9.4 describe the other considerations in detail and provide guidance on the manner in which each consideration is to be taken into account.

Background

12    The applicant is a 30-year-old citizen of Sudan and first entered Australia on 8 May 2007 at the age of 14. After his entry into Australia the applicant was granted a Global Special Humanitarian visa (Class XB) (subclass 202).

13    Between April 2013 and July 2018 the applicant committed 20 relatively minor offences relating to driving, breaches of bail, disorderly public behaviour and providing false information. On 25 February 2020 the applicant was convicted of an offence for sexual penetration without consent committed on 1 August 2016 and sentenced to a term of imprisonment of four years and seven months by the District Court of Western Australia.

14    As a consequence of his conviction and the length of the sentence imposed, on 29 April 2020 the applicant’s visa was cancelled under s 501(3A) of the Act. The visa was cancelled on the basis that the applicant did not pass the character test in s 501(7)(c) of the Act. In accordance with an invitation from the Minister, the applicant requested the cancellation decision be revoked and made representations and submissions in support of that request. On 26 June 2023 a delegate of the Minister made a decision under s 501CA(4) of the Act not to revoke the mandatory cancellation of the applicant’s visa. On 29 June 2023 the applicant lodged an application for review of the non-revocation decision in the Tribunal and on 19 September 2023 the Tribunal affirmed the non-revocation decision.

15    As a consequence of the cancellation decision the applicant no longer has a right to enter or remain in Australia. Therefore, on his release from prison on 27 February 2023, he was immediately taken into immigration detention, where he remains, as required under s 198 of the Act.

Tribunal decision

16    The Tribunal commenced its reasons for decision (T) by setting out the background to the application for review, the issues, the details of the hearing, the relevant provisions of the Act and Direction 99 and the evidence before the Tribunal (T [1]–[45]). The Tribunal then addressed each of the primary and other considerations in Direction 99 and made findings as to whether these were in favour, against or neutral to the exercise of the discretion to revoke the cancellation decision (T [49]-[150]). The Tribunal’s consideration of the primary consideration in paras 8.1 (Protection of the Australian community), 8.2 (Family violence committed by the non-citizen) and 8.3 (The strength, nature and duration of ties to Australia) is relevant to these proceedings.

17    In the course of considering the protection to the Australian community from criminal or other serious conduct (para 8.1 of Direction 99) the Tribunal first turned to the nature and seriousness of the applicant’s offending conduct (T [51]-[66]) and concluded that the applicant’s conduct was very serious (T [67]-[68]). The Tribunal then examined the risk to the Australian community should the applicant commit further offences or engage in other serious conduct. In doing so, the Tribunal summarised the nature of the harm that would be suffered if the applicant were to re-offend and concluded that it would result in ‘further serious harm that may cause considerable physical, psychological and economic harm to members of the Australian community’ (T [71]-[74]). The Tribunal then considered the likelihood of the applicant engaging in further criminal or other serious conduct (T [82]-[88]). Having considered the nature and seriousness of the applicant’s offending and conduct as well as the risk to the Australian community should the applicant commit further offences, the Tribunal concluded that the primary consideration in para 8.1 of Direction 99 ‘weighs very heavily against revocation of the [c]ancellation [d]ecision’ (T [89]).

18    The Tribunal next addressed whether the conduct engaged in by the applicant constituted family violence (para 8.2 of Direction 99) (T [90]-[103]). The Tribunal considered that the sexual offence for which he was convicted was against a family member (his biological cousin) and constituted family violence (T [92]-[97]). The Tribunal then considered a submission the Minister had made about an accusation of another sexual offence against a child that had been made against the applicant as follows.

98.    The Respondent also noted that:

... [T]here is a record of the Applicant being accused of 'sexually penetrating a child of or over 13 and under 16' in the material returned pursuant to a summons issued in this matter to Western Australia Police Force. Although the name of the victim is redacted, the age difference between the victim and the Applicant for this conduct is the same as that for the conduct which led to the 'sexual penetration without consent' charge and conviction. Accordingly [the Tribunal is invited] to infer that the victim of this conduct was the same biological cousin as the victim of the sexual crime for which the Applicant was convicted. Although the Applicant was not convicted of 'sexually penetrating a child of over 13 and under 16,' ... this is information from an independent and authoritative source indicating the Applicant had been involved in the perpetration of family violence, subject to the Applicant being afforded procedural fairness on this point at hearing.

99.    At hearing, the Applicant gave evidence that he has never had sex with his biological cousin other than the time for which he was convicted of sexual assault. However, this stands in contrast to the Applicant's father's evidence that he recalls the Applicant having been arrested between 2014 and 2015 for conduct of this nature.

100.    While there is no evidence to indicate that the Applicant's family violence offending has been frequent, there is at the least, the invitation to infer it has been repeated. In which case, any cumulative effect would be serious. In the present matter, the Tribunal considers it is necessary only to say there is a reasonable likelihood that the incident referred to at [98] above involved the Applicant.

101.    As noted by the Respondent, although the Applicant has apologised for the hurt that he caused the victim he does not appear to understand the impact of his offending behaviour on the victim. The Tribunal agrees. Further, the Applicant has sought to contact the victim in breach of a lifetime apprehended violence order as recently as 20 May 2023. While the Applicant denied the attempt was made, he did concede this behaviour could be seen as breaching the order and that his has the potential to negatively impact a victim of such an order.

102.    While there is no evidence that the Applicant has re-offended since being made aware by a Court of the consequences of further acts of family violence, the Tribunal does not consider this is any way reduces the seriousness of the Applicant’s family violence conduct.

19    The Tribunal concluded that although no substantial evidence of re-offending was put to the Tribunal, the applicant’s engagement in family violence ‘weighs very heavily against revocation of the [c]ancellation [d]ecision’ (T [103]).

20    Paragraph 8.3 of Direction 99 provides:

8.3    The strength, nature and duration of ties to Australia

(1)    Decision-makers must consider any impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.

(2)    In considering a non-citizen’s ties to Australia, decision-makers should give more weight to a non-citizen’s ties to his or her child and/or children who are Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.

(3)    The strength, duration and nature of any family or social links generally with Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.

(4)    Decision-makers must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:

a)    the length of time the non-citizen has resided in the Australian community, noting that:

i.    considerable weight should be given to the fact that a non-citizen has been ordinarily resident in Australia during and since their formative years, regardless of when their offending commenced and the level of that offending; and

ii.    more weight should be given to the time the non-citizen has resided in Australia where the non-citizen has contributed positively to the Australian community during that time; and

iii.     less weight should be given to the length of time spent in the Australian community where the non-citizen was not ordinarily resident in Australia during their formative years and the noncitizen began offending soon after arriving in Australia.

(Emphasis added.)

21    In relation to the strength, nature and duration of ties to the Australian community (para 8.3 of Direction 99), the Tribunal considered the applicant’s familial and social connections in Australia, the extent of the applicant’s positive contribution in the Australian community as well as the length of his period of residence as follows (footnotes omitted):

107.    The Tribunal is required to consider any impact of the decision on the Applicant's immediate family members in Australia, where those family members are Australian citizens, permanent residents of Australia or have an indefinite right to reside.

108.    The Applicant has provided a body of lay evidence regarding his familial and social connections in support of his case. The evidence predominantly focuses on his relationships with his father and his claimed current partner. The Tribunal does not seek to, nor does it consider it necessary, to summarise the entirety of the evidence here and notes it has considered the numerous available statements in the context of this consideration (along with the oral evidence of the Applicant's father, the only witness called by the Applicant at the hearing).

109.    The Tribunal is of the view that the Applicant's evidence regarding the nature and extent of his familial relationships is vague and inconsistent. The Applicant claims he has a relationship with his father, stepmother and stepsiblings. The Tribunal accepts the Applicant has a relationship with his father, albeit relatively recent and the strength of which is really yet to be tested.

110.    The Applicant gave evidence that he speaks with his stepsiblings once per fortnight, however his father gave oral evidence that the Applicant has never lived with his stepsiblings and that they would only see each other a few times a year at family gatherings.

111.    As to the Applicant's friends who have provided letters of support, there is no reason why these friends cannot continue to support the Applicant via electronic means in circumstances where he has been in prison and detention for several years.

112.    As to the Applicant's relationship with Ms Sears, she and the Applicant refer to each other as 'partner' and Ms Sears refers to the impact of the visa cancellation [on] their family, and in particular, their children (being Ms Sears' children). However, their relationship is recent, Ms Sears did not give evidence at the hearing, and as such the Tribunal has not heard her account of the claimed challenges she would stand to face if the Applicant were removed from Australia.

113.    The Applicant has resided in Australia since 2007 for over 16 years, since the age of 14. The Applicant's first offence took place in 2013 and he has consistently offended since. While the Tribunal accepts the Applicant has been employed in the past, evidence of any positive contribution by him to the Australian community is limited.

114.    The Tribunal is not satisfied that there is sufficient evidence to support the Applicant’s claim of his strong ties to Australia. Overall, the Tribunal considers that this consideration weighs slightly in favour of revocation of the Cancellation Decision.

22    The Tribunal then considered the best interests of minor children in Australia, paying particular attention to the interests of the applicant’s minor children, and concluded that the best interests of minor children ‘weigh slightly in favour of revocation of the [c]ancellation [d]ecision’ (T [115]-[123]).

23    Notwithstanding that the applicant had been in Australia for approximately half his life, the Tribunal found that the expectations of the Australian community weighed strongly against revocation of the cancellation decision (T [124]-[134]).

24    The Tribunal then turned to each of the ‘other considerations’ referred to in para 9 of Part 2 of Direction 99 (T [135]-[150]). The Tribunal began with a consideration of the legal consequences of a decision under s 501CA (para 9.1 of Direction 99), concluding that non-refoulement obligations were not engaged in relation to the applicant and this consideration should be given neutral weight (T [136]-[141]). Having regard to the challenges the applicant may face in Sudan, the Tribunal found the extent of impediments if removed (para 9.2 of Direction 99) weighed slightly in favour of revocation of the cancellation decision (T [142]-[146]). In relation to the balance of the ‘other considerations’, namely the impact on victims (para 9.3 of Direction 99) and the impact on Australian business interests, the Tribunal found that these considerations were not relevant and were therefore given neutral weight (T [147]-[150]).

25    The Tribunal then undertook a weighing exercise in relation to the primary and other considerations (T [151]-[165]) and concluded that it was not satisfied that there is ‘another reason’ why the cancellation should be revoked (T [165]). Ultimately, the Tribunal affirmed the decision not to revoke the cancellation of the applicant’s visa (T [166]).

Grounds of review and summary of parties’ contentions

26    After abandoning one ground of review, the applicant now relies on three grounds of review in his amended originating application. These grounds and particulars are quite lengthy and may be summarised as follows.

Ground 1

27    The first ground of review asserts, in substance, that the Tribunal fell into jurisdictional error in finding (at T [88]) that the applicant was a moderate risk of re-offending in a similar manner because that finding was not supported by evidence, or alternatively, involved misunderstanding or misapplying a mandatory relevant consideration.

28    The applicant submits, in substance, that the expression ‘similar manner’ at para [88] of the Tribunal’s reasons, in context, should be read as meaning sexual offences against a family member. That is, so the applicant contends, the Tribunal found (at T [88]) that the applicant posed a moderate risk of committing further sexual offences against a family member.

29    The applicant contends that the Tribunal was required, where relevant, to take into account as ‘mandatory relevant considerations’ the primary considerations set out in Direction 99. The applicant submits that the ‘risk of recidivism’ consideration in para 8.1.2(2)b) of Direction 99 requires the Tribunal to consider, amongst other things, (i) ‘information and evidence on the risk of the non-citizen re-offending’ and (ii) ‘evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence’.

30    The applicant submits that, although the Tribunal was permitted to consider the applicant’s past offences, the exercise required in the assessment of risk to the Australian community is a forward-looking endeavour that requires postulation as to future events. In light of the Tribunal’s acknowledgment that there was no expert opinion available to the Tribunal as to the applicant’s risk of future offending (T [85]), the applicant contends that the Tribunal’s finding of a moderate risk of sexual re-offending against a family member was not supported by evidence and that error was material. Alternatively, absent direct evidence of the applicant’s propensity to commit further sexual offences against a family member, other than the conviction for the sexual offence in 2020, there was no evidentiary basis upon which the Tribunal could rely to conclude that there was a moderate risk of re-offending in a similar manner and, thus, that conclusion was irrational. The applicant submits that, given the existence of countervailing factors such as the existing lifetime domestic violence order in the victim’s favour and the length of time that has passed since that offence, there must be stronger evidence to the contrary for the Tribunal to make that finding of ‘moderate risk’ of sexual re-offending against a family member.

31    The Minister submits the applicant’s characterisation of the Tribunal’s reasons is incorrect. The Tribunal’s assessment of the applicant’s risk of re-offending was not limited to sexual offences against a family member or sexual offences generally. Relying on Doves v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1281 at [44] and [48] (Collier J), the Minister submits that the Tribunal’s assessment appropriately included the applicant’s criminal history as a whole, including the applicant’s offences involving alcohol and disorderly conduct and not only the 2020 conviction for the sexual offence. The applicant’s history of serious misconduct provided a sufficient evidentiary basis for the Tribunal to make its conclusion that there was a moderate risk that the applicant would re-offend in a similar manner (T [6]-[10], [57]-[62], [66]-[67], [74]-[75]).

Ground 2

32    The second ground asserts, in substance, that the Tribunal fell into jurisdictional error in finding that there was a ‘reasonable likelihood’ that the applicant had engaged in other historic sexual offending against the victim of the offence for which he was convicted because that finding was not supported by the evidence, or alternatively was legally unreasonable, illogical or irrational on the material before the Tribunal.

33    The Tribunal considered a record of an accusation against the applicant ‘sexually penetrating a child of or over 13 [years old] and under 16 [years old]’ (T [98]). Referring to that incident, the applicant submits that the Tribunal’s finding that there was a ‘reasonable likelihood’ that that incident involved the applicant implies that the applicant had offended against the same victim or another family member on an occasion other than the one the subject of the conviction (T [100]). To draw that implication, the applicant relies on the fact that the Tribunal does not, when referring to the applicant’s apology for his conduct or the seriousness of the applicant’s conduct, distinguish between the conduct the subject of his conviction or the incident alleged and inference that the applicant had repeatedly committed family violence offences (T [100]-[103]).

34    The applicant submits that the inference drawn by the Tribunal that the applicant had repeatedly sexually offended against a family member and the finding that there was a ‘reasonable likelihood’ the applicant had done so lacked any evidentiary basis. The applicant relies on the remarks of the sentencing judge that the State had been unable to prove beyond a reasonable doubt that the applicant had a prior sexual relationship with the victim and the applicant’s evidence that he had never engaged in sexual intercourse with the victim other than in the incident the subject of his conviction in support of his submission that the Tribunal’s finding was unsupported by evidence or, alternatively, was irrational.

35    The Minister submits that the applicant’s characterisation of the Tribunal’s finding is incorrect. Namely, the Tribunal made no finding or conclusion that the child the subject of the alleged sex offence was the victim of the offence for which the applicant was convicted. Rather, the relevant finding of the Tribunal was that there was a reasonable likelihood that the applicant was involved in the alleged sexual offence against the unidentified child. In support of that submission, the Minister relies on the Tribunal’s omission of information that specifically identifies the child and its reference only to the applicant (T [100]).

36    The Minister submits, in the alternative, that the applicant’s characterisation of the Tribunal’s finding does not lead to jurisdictional error because it was open on the evidence for the Tribunal to make that finding. Relying on Aghbolagh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 43 at [35]-[43] (Burley J), the Minister contends that the Tribunal appropriately construed para 8.2(2)b) to consider information from independent and authoritative sources (the Western Australian Police Force) to make that finding that there was a ‘reasonable likelihood’ of the applicant having repeatedly offended against the victim of the sexual offence for which he was convicted. Among other things, the Tribunal considered that the applicant was living with the victim at the time of the alleged sexual offence against the child, the victim was the only person the applicant was prohibited from contacting under his bail conditions, and the circumstances of the alleged sexual offence and the offence for which the applicant was convicted were similar. The Minister contends that the Tribunal need not be satisfied of any standard of proof before making the finding that it was reasonably likely that the applicant was involved in similar sexual offences, but rather it need only be satisfied that the information indicated or pointed to his involvement.

Ground 3

37    The third ground asserts, in substance, that the Tribunal fell into jurisdictional error by misunderstanding or misapplying Direction 99 when assessing the applicant’s strength, nature and duration of ties to Australia.

38    The applicant submits that the Tribunal was required to consider whether there was ‘another reason’ for revocation of the original decision: s 501CA(4)(b)(ii). While not restricted to what it might consider in support of that assessment, the Tribunal was obliged to comply with Direction 99 in exercising its review function under s 500(1)(ba) of the Act and a failure 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 were to be weighed in deciding whether to revoke a decision to cancel a visa may involve jurisdictional error: Manebona v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 116; 298 FCR 516 at [93]-[94] and the authorities there cited; FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 19 at [6].

39    The applicant submits that para 8.3 of Direction 99 required the Tribunal to consider the strength, nature and duration of the applicant’s ties to Australia. While the allocation of weight was a matter for the Tribunal, it was directed that when considering ‘the length of time the non-citizen has resided in Australia’ that ‘considerable weight should be given to the fact that a non-citizen has been ordinarily resident in Australia during and since their formative years, regardless of when their offending commenced and the level of that offending’: para 8.3(4)a)i. of Direction 99.

40    The applicant made representations with respect to the strength, nature and duration of his ties to Australia. He arrived in Australia at the age of 14 years and, as the Minister accepted before the Tribunal, the applicant spent part of his formative years in Australia.

41    As set out at para [21] of these reasons, the Tribunal addressed the strength, nature and duration of the applicant’s ties to Australia (T [104]-[114]). The applicant submits that the Tribunal did not explicitly or separately evaluate the weight to be afforded due to the strength, nature or duration of the applicant’s ties to Australia in that part of its reasons. Nor was there any calibration which might reveal it lawfully took into account the favourable weight to be afforded to the applicant under para 8.3(4)a)i. of Direction 99. The applicant submits the Court should infer the Tribunal failed to do so and in so failing misapplied or misunderstood that paragraph of the direction or failed to consider the applicant’s representations with respect to that consideration: Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; 275 CLR 582 at [24]-[25].

42    The applicant contends that para 8.3(4)a)i. of Direction 99, properly understood, required the Tribunal to afford positive weight to the fact that the applicant resided in Australia during his formative years. Particularly, the obligation in para 8.3(4)a)i. that considerable weight should be given to the fact that a non-citizen has been ordinarily resident in Australia during and since their formative years as an obligation, or at least, a strong recommendation, to allocate weight to the fact that the applicant had resided in Australia since the age of 14. In substance, the applicant contends that the Tribunal, in failing to specifically explain the impact of the ‘formative years’ consideration in its assessment (or to provide an explanation as to why it did not), failed to give considerable weight to that consideration. Further, the Tribunal’s failure to separately afford weight to each of the ‘strength’, ‘nature’ and duration’ of the applicant’s ties amounted to a misapplication or misunderstanding of the assessment required by para 8.3(4).

43    The applicant contends, in the alternative, that the Tribunal fell into error by negatively weighing the finding that ‘evidence of any positive contribution by [the applicant] to the Australian community is limited’ since his arrival in its assessment of the strength, nature and duration of the applicant’s ties to Australia. The assessment required by para 8.3(4)a)i. mandates that weight be given to the fact that the applicant has been ordinarily resident in Australia during and since his formative years from age 14. Thus, the Tribunal misunderstood the assessment required by para 8.3(4).

44    The Minister contends, in substance, that the Tribunal had properly identified and afforded weight to the length of time which the applicant had resided in Australia and his contribution to the Australian community. That is reflected in para [113] of the Tribunal’s reasons and its assessment of the applicant’s evidence about his family and social ties (T [107]-[112]). The Minister contends that the Tribunal is not required by Direction 99 to afford a particular weight to the consideration of whether the applicant had been resident in Australia during and since his formative years: Price v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 171; 301 FCR 484 at [71] (Katzmann, O’Bryan and McElwaine JJ). That the Tribunal had referred to the fact that he had been resident in Australia since the age of 14 was sufficient to discharge any obligation of the Tribunal to give considerable weight to that ‘factor’.

Ground 3: Was there a failure to give considerable weight to ‘formative years’ in Australia?

45    It is convenient, as the applicant’s written submissions have done, to commence with a consideration of ground 3 of the originating application.

46    Section 499(2A) mandates that a person or body must comply with a direction under s 499(1) of the Act. A failure to comply with the express requirements of Direction 99 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 may amount to jurisdictional error: FHHM at [6] (O’Callaghan and Colvin JJ, Derrington J agreeing) and the authorities there cited; Jabari v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 98; 298 FCR 431 at [55] (Katzmann, Jackson and McEvoy JJ).

47    Paragraph 6 of Direction 99 provides that informed by the principles in para 5.2 of the direction, ‘a decision-maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision’. The duty to ‘take into account the considerations’ is not an invariable one as indicated by the words ‘where relevant’. Whether a consideration is relevant in a particular case is a matter of opinion for the individual decision-maker: Manebona at [95] (Logan, Rangiah and Goodman JJ) and the authorities there cited. Nonetheless, where there is material before the decision-maker that renders a consideration manifestly relevant, a failure to take into account that consideration may amount to a failure to conduct the review required by the Act and therefore jurisdictional error: Uelese v Minister for Immigration and Border Protection [2015] HCA 15; 256 CLR 203 at [61]-[68] (French CJ, Kiefel, Bell and Keane JJ).

48    In Plaintiff M1/2021 (at [23]-[27]) a majority of the High Court (Kiefel CJ, Keane, Gordon and Steward JJ) set out the approach decision-makers are required to take to a former visa-holder’s representations made in response to an invitation under s 501CA(3). Decision-makers are not required to treat every statement within representations as a mandatory relevant consideration (at [23]). Consistently with well-established authority in different statutory contexts, decision-makers must read, identify, understand and evaluate the representations. Decision-makers must have regard to what is said in the representations, bring their mind to bear upon the facts stated in them and the arguments or opinions put forward, and appreciate who is making them. From that point, decision-makers might sift them, attributing whatever weight or persuasive quality is thought appropriate. The weight to be afforded to the representations is a matter for decision-makers (at [24]). These observations of the function of decision-makers do not detract from and are not inconsistent with other well-established principles that if review of a decision-maker’s reasons disclose that the decision-maker ignored, overlooked or misunderstood relevant facts or materials or a substantial and clearly articulated argument; misunderstood the applicable law; or misunderstood the case advanced by the former visa-holder, that may give rise to jurisdictional error (at [27]). While Plaintiff M1/2021 concerned a decision of a delegate of the Minister rather than a decision of the Tribunal on a review under s 500(1)(ba), the principles are equally applicable to the general approach to a former visa-holder’s case upon the Tribunal’s review.

49    On the materials before the Tribunal, indeed on the facts as the Tribunal found, the applicant had resided in Australia for more than 16 years and entered Australia at the age of 14 years (T [113]). The Minister had accepted that the applicant had spent at least part of his formative years in Australia (T [106(e)]). That was an appropriate concession. The Tribunal was required to have regard to the length of time the applicant had resided in Australia and was directed to note that ‘considerable weight should be given to the fact that a non-citizen has been ordinarily resident in Australia during and since their formative years, regardless of when their offending commenced and the level of that offending’: para 8.3(4)a)i. of Direction 99. That is, Direction 99 directed the Tribunal to a factor that it was required to take into account and provided guidance on the weight to be given to a particular aspect of that factor (residence in Australia during and since formative years).

50    The relevant criterion assumes that a non-citizen will have a period of ‘formative years’. The natural and ordinary meaning of ‘formative’ includes, relevantly, ‘giving form or shape; forming, shaping, fashioning; moulding’ or ‘relating to formation or development’: The Macquarie Dictionary, 4th edition. Not all non-citizens will have been formed, shaped, fashioned or moulded by events, experiences and circumstances occurring at the same states of life or over the same periods. The criterion requires the events, experiences and circumstances affecting a particular non-citizen ‘as formed’ to be regarded and the question to be asked is whether the non-citizen was ordinarily resident in Australia during and since the period of that non-citizen’s formative years. It requires that a non-citizen’s formative years be conceived as constituting a ‘period’: Nafeh v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 199 at [13]-[19] (Lindgren J). The expression ‘formative years’ when used in relation to a person is descriptive of a period of childhood, but it need not be confined to that period of a person’s life. It is capable of meaning any period during the formation or development of a person’s character. It may extend, for example, to a period during which a person is receiving education, training or guidance from people other than parents or those acting in the position of parents. The expression does not require that there be a cut-off at the date a person becomes an adult in the eyes of the law.

51    It follows that paragraph 8.3(4)a)i. requires the Tribunal, where relevant, to ascertain the period of a non-citizen’s formative years and to consider and give weight to ordinary residence in Australia during and since those formative years. A proper appreciation and understanding of the meaning of ‘formative years’ and the period of those years is of significance because it stands to reason that greater weight may be given to the period of time a non-citizen has been ordinarily resident in Australia where that period includes all or a very significant portion of that person’s formative years.

52    There is no reference in the Tribunal’s reasons, other than the Minister’s concession, to the applicant’s ordinary residence in Australia during his formative years. While the Tribunal identifies that the applicant has resided in Australia since 2007 and since the age of 14 years, there is no discussion of the significance of his residence in Australia from the age of 14 to 18 or any other period of ‘formative years’. Nor is there any reference to the guidance that ‘considerable weight’ should be given to the fact that the applicant was ordinarily resident during and since his formative years or that such weight should be given to that factor regardless of when his offending commenced or the level of his offending. The focus of the Tribunal’s reasoning is on the length of his residence (over 16 years), when he first offended and the consistency of his offending thereafter, and the limited evidence of any positive contribution the applicant has made to the Australian community (T [113]).

53    The Tribunal was required to give reasons for its decision. Where the Tribunal gives written reasons for its decision, those reasons must ‘include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based’: s 43(2) and s 43(2B) of the Administrative Appeals Tribunal Act 1975 (Cth).

54    Given that the Tribunal was required to have regard to and should have given, or at least should have considered giving, considerable weight to the fact the applicant was ordinarily resident in Australia during his formative years, it cannot be inferred from the absence of any reference to that factor or the weight attributed to it that the Tribunal was not persuaded that the factor was of any significance and, therefore, it was not considered material to the Tribunal’s reasons. The inference I draw is that the Tribunal failed to identify and understand the manifest relevance of the facts it found on the materials before it. That is, it overlooked or ignored a factor to which it was required to have regard under para 8.3(4)a)i. of Direction 99: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 at [69]. Therefore, the Tribunal failed to perform the review it was required to perform under s 500(1)(ba) of the Act. That was a jurisdictional error because absent error, the outcome could have been different: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421 at [45] (Bell, Gageler and Keane JJ); LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12 at [9]-[16] (Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ).

55    The view I have reached on ground 3 means that it is not strictly necessary to decide grounds 1 and 2. However, in the event that I am wrong regarding ground 3, I will explain my reasons for considering that the applicant has failed to demonstrate any jurisdictional error by grounds 1 or 2. Again, it is convenient to address these grounds, as the applicant has done, in reverse order.

Ground 2: Was the finding that there was a reasonable likelihood an historical incident involved the applicant unfounded or unreasonable, illogical or irrational?

56    The applicant contends that the Tribunal made a finding that there was a reasonable likelihood that the applicant had engaged in other historic sexual offending against the victim of the offence for which he was convicted when assessing para 8.2 of Direction 99. He contends that finding was not supported by the evidence available to the Tribunal and, as such, constituted a jurisdictional error: Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; 241 CLR 390 at [91] (Hayne, Heydon, Crennan and Kiefel JJ); Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41; 274 CLR 398 at [17] (Keane, Gordon, Edelman, Steward and Gleeson JJ); LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 64; 297 FCR 1 at [141]-[142] (Markovic, Thomas and Button JJ); EUF20 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 130; 298 FCR 492 at [71] (Abraham, O’Sullivan and Raper JJ).

57    The Minister accepts that the Tribunal would make a jurisdictional error if it made a finding in the absence of evidence or other material or its finding is legally unreasonable or illogical: Viane at [17]; Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 264 CLR 541 at [11] (Kiefel CJ); [52] (Gageler J); [135] (Edelman J). However, the Minister contends that the Tribunal did not make the ‘finding’ the applicant asserts or, if it did, that such a finding was open on the evidence and its conclusion is not otherwise unreasonable, illogical or irrational.

58    The Minister’s first contention should be accepted. Based on the offence for which the applicant was convicted the Tribunal found that he had engaged in family violence as defined in para 8.2(2)b) of Direction 99 (T [90]-[[97]). The Tribunal then dealt with the alleged sexual office against the child (T [98]-[103]). The relevant parts of the Tribunal’s reasons are set out at para [18] of these reasons.

59    The Tribunal made no express finding to the effect that there is a reasonable likelihood that the alleged incident of sexual penetration of a child involved the victim of his offence (his cousin). The Tribunal said ‘it is necessary only to say there is a reasonable likelihood that the incident referred to at [T [98]] involved the Applicant’. The incident referred to at para [98] is sexual penetration of a child of over 13 years old and under 16 years old. Paragraph [98] also contains reference to an invitation to draw an inference that the child was the victim of the offence for which he was convicted (the applicant’s cousin). The Tribunal has not indicated that it had accepted the Minister’s invitation to draw that inference or that it had accepted that the applicant had engaged in repeated family violence. There is also no reference in para [103] of the Tribunal’s reasons to repeated engagement in family violence. In context, the Tribunal’s conclusion that there is a reasonable likelihood that the incident ‘involved the Applicant’ is to be understood as acceptance that there is a reasonable likelihood that the applicant was involved in an incident of sexual penetration of a child.

60    I also accept the Minister’s second contention that, even if the Tribunal had concluded that there was a reasonable likelihood that the incident involved the applicant sexually penetrating the victim (a child) without consent, the conclusion that there is ‘a reasonable likelihood’ was open to the Tribunal. It made no finding that the applicant as a matter of fact engaged in that conduct only that there was a reasonable likelihood that he had done so. That is, there was information from an authoritative source (the Western Australia Police Force) indicating that the applicant had been involved in family violence. The applicant was living with the victim at the time of the incident (2014-2015) (T (52(b)]); the age difference between the applicant and the child referred to in the incident was the same as between the applicant and the victim (T [98]); and the applicant was convicted of committing a similar offence against the victim. Further, while the Minister accepts that the Tribunal was in error when it concluded that the applicant’s father’s evidence was inconsistent with the applicant’s denial, the Tribunal was not required to accept the applicant’s denial that he had offended against the victim at any other time (T [99]). In any event, an erroneous finding of fact alone is not indicative of a legally unreasonable or illogical or irrational conclusion. Something more than disagreement, even emphatic disagreement, with the Tribunal’s conclusion is necessary: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at [124], [131] (Crennan and Bell JJ).

Ground 1: Was the finding that there was a moderate risk of the applicant re-offending in a similar manner unfounded or unreasonable, illogical or irrational?

61    The applicant contends that the Tribunal found that there was a ‘moderate risk’ of the applicant re-offending in a ‘similar manner’ to that which led to the conviction for the offence against his cousin. That is, the Tribunal found that there was a moderate risk of the applicant re-offending against a family member. The applicant contends that finding involved jurisdictional error because it was not supported by evidence: Kostas at [91] (Hayne, Heydon, Crennan and Kiefel JJ); Viane at [17] (Keane, Gordon, Edelman, Steward and Gleeson JJ); LPDT at [141]-[142] (Markovic, Thomas and Button JJ); EUF20 at [71]. Alternatively, that finding involved jurisdictional error because it was irrational and lacked a probative basis: Minister for Immigration and Border Protection v MZZMX [2020] FCAFC 175; 280 FCR 1 at [23]-[25] (Murphy, O’Callaghan and Anastassiou JJ); QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 166 at [21]-[22] (McKerracher and Griffiths JJ); see also, BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181 at [68] (Moshinsky J); Hambledon v Minister for Immigration and Border Protection [2018] FCA 7 at [41] (Kenny J).

62    The Minister contends that the Tribunal made no finding that the applicant posed a moderate risk of re-offending against a family member. He submits that the applicant’s interpretation of the Tribunal’s reasons is unduly narrow and incorrect.

63    Again, the Minister’s submissions should be accepted largely for the reasons he gives in his submissions. The Tribunal’s assessment of the applicant’s risk of re-offending was not limited to sexual offending against a family member. The Tribunal considered the applicant’s risk of further offending and engaging in conduct similar to his prior criminal and other serious misconduct in general. In context, the reference to ‘similar manner’ in para [88] of the Tribunal’s reasons is to be understood as a reference to the whole of the applicant’s historical offending. That context is as follows:

(a)    the Tribunal summarised the applicant’s criminal history (T [6]-[10]);

(b)    when considering the protection of the Australian community the Tribunal referred to that summary and the applicant’s general historical offending (T [57]-[61]);

(c)    the Tribunal identified the sexual offence for which he was convicted constituted an act of family violence (T [58]);

(d)    the Tribunal had regard to the cumulative effect of the applicant’s historical offending and that it had escalated in frequency and seriousness (T [66]-[67]);

(e)    the Tribunal found that should the applicant engage in further sexual offences, family violence, driving offences, offences under the influence of alcohol or other predatory conduct there would be considerable physical, psychological and economic harm to the Australian community (T [74]);

(f)    the Tribunal then considered the likelihood of the applicant engaging in further criminal or other serious conduct (T [75]-[88]);

(g)    the Tribunal also set out the applicant’s and Minister’s evidence and submissions (T [76]-[80];

(h)    the Tribunal commenced its consideration of the evidence by stating that it had considered the available evidence and the parties’ submissions (T [81]), it noted that the applicant had taken a number of steps to rehabilitate himself and treat drug and alcohol addiction and it considered and assessed the potential support of his father and partner (T [82]-[84]);

(i)    the Tribunal acknowledged that there was no expert evidence regarding the applicant’s risk of re-offending and that there was uncertainty about whether his current rehabilitation efforts would continue if he were released into the community (T [85]); and

(j)    the Tribunal considered and assessed the extent to which the applicant had demonstrated that he was remorseful and concluded that he was generally lacking in remorse for the devastating impact his offending has had on the victim of his sexual offence and her family (T [86]-[87]).

64    The Tribunal then concluded:

88.    Overall, having considered all of the evidence of the Applicant’s circumstances, the Tribunal is of the opinion that there is a moderate risk that the Applicant will reoffend in a similar manner. In the context of the Applicant’s sexual offending, the Tribunal considers that the harm that would be caused, if it were repeated is so serious that any risk that it may be repeated is unacceptable.

65    The Tribunal’s conclusion is, in effect, that the applicant poses a moderate risk of committing sexual offences or offences of a similar level of seriousness in the future as well as other less serious offences. That is evident from the specific reference to the harm that would be caused by repeated sexual offending. The conclusion is clearly not limited to sexual offences against a family member. Although there was no expert evidence to support the conclusion about moderate risk, the Tribunal provides ample explanation, by reference to other evidence, for its conclusion. The Tribunal made no error of the kind the applicant asserts in the conclusions it expresses at para [88] of its reasons.

Disposition

66    The Tribunal misunderstood or misapplied para 8.3 of Direction 99 in that, when having regard to the length of time the applicant has resided in Australia, it failed to take into account or consider that considerable weight should be given to the fact the applicant has been ordinarily resident in Australia during and since his formative years regardless of when his offending commenced and the level of that offending as para 8.3(4)a)i. of the direction requires. That failure was material and a jurisdictional error. Therefore, the Tribunal’s decision should be set aside and the matter remitted to it for determination according to law. The Minister should pay the applicant’s costs of the proceeding.

Associate:

Dated:    23 October 2024