Federal Court of Australia

Firme v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 60

ORDERS

THE COURT ORDERS THAT:

1.    A writ of certiorari issue quashing the decision of the second respondent made on 12 April 2024 which affirmed the decision of a delegate of the first respondent not to revoke, pursuant to s 501CA(4) of the Migration Act 1958 (Cth), cancellation of the applicant’s Class EN Subclass 186 Employer Nomination Scheme visa (Decision).

2.    A writ of mandamus issue directing the second respondent to re-determine the applicant’s application for the review of the Decision according to law.

3.    The first respondent pay the applicant’s costs as agreed or taxed.

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

REASONS FOR JUDGMENT

MEAGHER J

INTRODUCTION

1    The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) to affirm the decision of a delegate of the Minister not to revoke the cancellation of his visa.

2    The applicant is a 25-year-old citizen of Brazil. He first arrived in Australia in 2009 at which time he was 10 years old. He has held a Class EN Subclass 186 Employer Nomination Scheme visa.

3    On 23 March 2023, the applicant was sentenced to imprisonment for two and a half years for “choking suffocation strangulation associated domestic violence” and two counts of “assaults occasioning bodily harm – domestic violence offence”. Subsequently, on 19 May 2023, a delegate of the Minister mandatorily cancelled the applicant’s visa pursuant to s 501(3A) of the Migration Act 1958 (Cth) (Cancellation Decision). After seeking revocation of the Cancellation Decision, on 19 January 2024, a delegate of the Minister decided not to revoke the Cancellation Decision pursuant to s 501CA(4) (Non-Revocation Decision). On 22 January 2024, the applicant applied to the Tribunal for a review of the Non-Revocation Decision. On 12 April 2024, the Tribunal affirmed the Non-Revocation Decision and reasons were issued on 18 April 2024 (TD or Tribunal’s Decision).

4    By an amended originating application filed on 1 July 2024, the applicant advanced the following grounds in support of his application:

1. The Tribunal fell into jurisdictional error in respect of its approach to paragraph 8.4(1) of Direction no. 99, in that:

a. the Tribunal failed to comply with paragraph 8.4(1) of Direction no. 99 and section 499(2A) of the Migration Act 1958 (Cth) by not making a determination as to whether non-revocation under section 501CA is, or is not, in the best interests of the Applicant’s son, Child A (being a child affected by the decision); and

b. further, or alternatively, there was a want of logic in the Tribunal’s reasoning as to the best interests of Child A.

Particulars

i. There was no express or implicit determination in the statement of reasons dated 18 April 2024 (the Reasons) regarding the best interests of Child A.

ii. The Tribunal misdirected itself to the value that the Applicant would add to Child A, rather than the best interests of Child A (Reasons at [176]-[179]).

iii. The Tribunal minimised, without basis, the importance of the potential for the Applicant to be a good parent to Child A for many years to come (Reasons at [178]).

iv. Facts about the relationship between Child A and the Applicant were not negatived by countervailing findings of fact. In particular:

1. the Tribunal found that the Applicant loved Child A and Child A recognised him, but was not satisfied there was a close, meaningful relationship (Reasons at [176]);

2. the Tribunal was not satisfied that Child A would feel the Applicant’s absence to any significant degree if the Applicant were deported (Reasons at [176]);

3. the Tribunal was uncertain as to the value that the Applicant would add to Child A’s life during his childhood if the Applicant were in the Australian community (Reasons at [178]); and

4. as per (iii) above.

2. The Tribunal fell into jurisdictional error in that it denied procedural fairness by failing to draw its concerns about the credibility of the Applicant’s mother (Ms Cledes Ramos Pessoa) to her or the Applicant.

Particulars

i. The Tribunal was under the impression that Ms Pessoa tailored her evidence and did not consider Ms Pessoa to be a reliable witness (Reasons at [144]) and elsewhere did not accept her evidence (for example, Reasons at [165]).

ii. Such concerns were not drawn to the attention of the Applicant or Ms Pessoa.

    (Emphasis in original.)

5    The applicant read the amended originating application filed on 1 July 2024, the affidavit of Ziaullah Zarifi filed on 1 July 2024, the outline of submissions filed on 25 July 2024, the court book and the joint bundle of authorities. The Minister read the outline of submissions filed on 6 August 2024.

6    For the reasons that follows, the application is allowed.

legislative framework

7    Section 501CA(4) of the Act provides that the Minister may revoke the original decision if the person makes representations and the Minister is satisfied that the person passes the character test or that there is another reason why the original decision should be revoked. Section 501(6)(a) of the Act provides that a person does not pass the character test if they have a substantial criminal record. Section 501(7)(c) of the Act provides that a person has a substantial criminal record if they have been sentenced to a term of imprisonment of 12 months or more.

8    Pursuant to s 499(2A), a person or body exercising powers under the Act is required to comply with any directions made by the Minister under s 499(1). In the present case, Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction 99 or the Direction), commenced on 3 March 2023 and is the relevant direction. Paragraph 5 is described as the preamble to the Direction and at para 5.1(4), states that the purpose of the Direction is to guide decision makers in performing functions or exercising powers under ss 501 and 501CA of the Act. Paragraph 5.2 of the Direction sets out principles which provide the framework within which decision makers should approach their task of deciding whether to refuse or cancel a non-citizen’s visa under s 501 or revoke a mandatory cancellation under s 501CA of the Act.

9    Paragraph 8 of Direction 99 sets out the primary considerations as follows:

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

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

(3)    The strength, nature and duration of ties to Australia (Primary Consideration 3);

(4)    The best interests of minor children in Australia (Primary Consideration 4); and

(5)    Expectations of the Australian community (Primary Consideration 5).

10    Paragraph 9 of the Direction 99 sets out four ‘Other Considerations’ to be taken into account where relevant:

(1)    Legal consequences of the decision (Other Consideration 1);

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

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

(4)    Impact on Australian business interests (Other Consideration 4).

tribunal’s decision

11    The hearing before the Tribunal took place on 2 and 3 April 2024. The Tribunal received evidence from the applicant, his partner, his mother and a forensic psychologist, Dr James Freeman. Both parties were represented before the Tribunal.

12    The Tribunal considered the applicant’s background and circumstances, including that he was neglected by his parents in Brazil, suffered sexual abuse on two occasions at the age of 11 in Australia in relation to which he experienced a lack of emotional support: TD [19]-[31]. The Tribunal then considered the applicant’s offending in some detail: TD [32] – [73].

13    As to Primary Consideration 1, the Tribunal considered that the applicant’s offending was frequent and escalating in seriousness: TD [100]. With respect to the applicant’s risk of reoffending, the Tribunal took into account Dr Freeman’s opinion and found that there was at least a “low, and very real, risk” that the applicant will re-offend: TD [145]. Accordingly, the Tribunal found that Primary Consideration 1 weighed very heavily against revocation: TD [146].

14    The Tribunal considered the family violence committed against Ms B, the applicant’s former partner, and found that Primary Consideration 2 weighed heavily against revocation: TD [148] – [150]. After taking into account the applicant’s multiple serious crimes against a woman and his inaction in addressing his predisposition to violence or drug and alcohol use after committing his first offence of, or involving, violence (TD [155] – [157]), Primary Consideration 5 was also found to weigh heavily against revocation.

15    With respect to Primary Consideration 3, the Tribunal had regard for the evidence that the applicant has spent some of his formative years in Australia and had lived in the Australian community for around 13 years, during which time he was employed for six years: TD [160]. It considered that a number of the applicant’s family members live in Australia, including his mother, step-father, brother, two half-sisters, nephew and an infant niece whom he has not met: TD [162].

16    The Tribunal found that the evidence of the applicant’s mother, Ms Pessoa, as to the impact of the applicant’s removal on her was overstated: TD [165]. Notwithstanding that the Tribunal did not accept Ms Pessoa’s evidence at face value, it found that the applicant’s family will experience emotional hardship if the applicant were removed from Australia: TD [165].

17    The Tribunal also considered the position of the applicant’s partner, Ms E, and their child, Child A, including that they will lose the opportunity to live together as a family: TD [167]. The Tribunal found that Primary Consideration 3 weighed heavily in favour of revocation: TD [169].

18    Regarding Primary Consideration 4, the Tribunal considered that the applicant has an eight-year-old half-sister, Child Y, and the applicant’s brother has two children, Child C and Child N. The Tribunal accepted that both Child Y and Child C have positive close relationships with the applicant and are likely to experience emotional hardship as a result of his deportation: TD [172] – [174]. As to Child N, the Tribunal took into account that she was born recently and the applicant had never met her, and did not allocate any weight with respect to this child: TD [175].

19    It is useful to set out the Tribunal’s consideration and findings with respect to the applicant’s child, Child A, given their relevance to ground one of this application. At TD [176] – [179], the Tribunal stated:

176. The Applicant’s son is 14 months old. Due to the Applicant’s conduct, he has been in custody for the entirety of this child’s life. While Ms E claimed that the Applicant and Child A have a “great relationship”, the reality is that their contact is limited to occasional visits (three or four since Ms E moved to Brisbane in February 2024) and phone/video calls. Child A is barely old enough to communicate even at a basic level. I am not satisfied that there is a close, meaningful relationship, although I accept that the Applicant loves Child A and Child A recognises him. Child A is not dependant on the Applicant in any way and I am not satisfied that he would feel his absence to any significant degree if he were deported. Ms E fulfils the parental role for Child A with some help from the Applicant’s family and her mother. While she struggles, there is no suggestion that Child A is not adequately cared for.

177. I accept that the Applicant wants to be a good parent to Child A. He made the effort to do a basic online parenting course. However, he is young and inexperienced, and he has not had the opportunity to prove his ability and commitment as a parent. His relationship with Ms E has not yet withstood the stressors of day-to-day life in the wider community on a long-term basis. If they part ways at some point, his parenting role will presumably be limited. Further, if he relapses into drug or alcohol abuse, that will undermine his ability to be a responsible, nurturing, positive factor in Child A’s life. Worse, if he is aggressive or violent towards Ms E, that will adversely impact Child A directly or indirectly. I have found that there is a real risk that he will re-offend. Any re-offending could result in his imprisonment and/or deportation, and if he and Child A have formed a bond by that time, his absence is likely to adversely impact Child A.

178. Taking all these matters into consideration, the value the Applicant would add to Child A’s life during his childhood, if he were in the Australian community, is uncertain. The Applicant’s removal from Australia would take away the potential for him to be a good parent to Child A for many years to come, but I do not think it can be put much higher than that.

179. If the Applicant is deported, he can maintain phone and electronic communication with Child A and there might be infrequent visits. I accept that this could not replace physical presence and he may not be able to provide financial support from Brazil.

20    Primary Consideration 4 was allocated moderate weight in favour of revocation of the cancellation of the applicant’s visa: TD [181].

21    The Tribunal considered that Other Consideration 2 weighed moderately in favour of revocation (TD [194]) and allocated no weight to Other Considerations 1 and 3: TD [14] – [16]. Other Consideration 4 was allocated neutral weight: TD [16].

consideration

22    As can be seen from the amended originating application set out in [4] above, the applicant relied on two grounds in support of his application. First, the applicant impugned the Tribunal’s approach with respect to para 8.4(1) of the Direction and, secondly, the applicant contended that the Tribunal denied the applicant procedural fairness by failing to draw its concerns about the credibility of Ms Pessoa to the attention of the applicant or Ms Pessoa.

23    I will consider each ground in turn.

Ground 1: Did the Tribunal err in respect of its approach to para 8.4(1) of the Direction?

24    By ground one, the applicant contended that the Tribunal failed to comply with para 8.4(1) of the Direction by not making a determination as to whether non-revocation is or is not in the best interests of the applicant’s son, Child A. Alternatively, the applicant contended that the Tribunal’s approach to para 8.4(1) of the Direction is illogical.

25    Paragraph 8.4(1) of the Direction is in the following terms:

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.

26    In light of the judgment of the Full Court of this Court in Titoa v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 163, the applicant has advised by email correspondence that he will not be pursuing ground 1(a) of his amended originating application, namely as to the contention that the Tribunal failed to make a determination. It is therefore only necessary to consider ground 1(b) of the amended originating application, namely whether the Tribunal’s approach to para 8.4(1) of the Direction is illogical. This was argued in two respects.

27    First, the applicant referred to the Tribunal’s finding at TD [178], reproduced at [19] above, and impugned the Tribunal’s minimisation of the impact of removing the potential for the applicant to be a good parent. The applicant contended that no basis is given for this conclusion, nor is it supported by countervailing facts. Therefore, the applicant contended that it is an illogical finding.

28    Secondly, the applicant impugned the findings of the Tribunal TD [176], reproduced at [19] above, which he contended involved “downplaying” or understating the nature of the relationship between the applicant and Child A. The basis upon which such findings are challenged are as follows:

    The Tribunal conflated Child A’s ability to communicate with the applicant with his ability to have a meaningful relationship. The applicant argued that, if accepted, such logic would extend to persons who are unable to communicate by reason of a disability. Further, the applicant contended that this finding was not supported by expert evidence regarding the nexus between communication and the ability to have a meaningful relationship.

    Once the Tribunal accepted that the applicant loves Child A and that Child A recognises the applicant, there was no cogent basis for the non-satisfaction that there was a meaningful relationship between the applicant and Child A. Further, dependency cannot rationally be the criterion for having a meaningful relationship between the applicant and Child A.

    The Tribunal minimised the relationship without finding that it was not in the best interests of Child A to have a relationship with the applicant. Further, the maintenance of a parent-child relationship is significant in the assessment of the best interests of the child, relying on Soysa v Commissioner, Western Australian Police (2012) 46 Fam LR 648 at [219].

    The Tribunal finding that it was not satisfied that Child A would feel the applicant’s absence to any significant degree if the applicant were deported ignores the future impact on Child A. The Tribunal is to undertake a forward-looking assessment.

29    The applicant also impugned the Tribunal’s finding at TD [178] on the basis that it was focused on the applicant “adding value” to Child A’s life, which is narrower than the concept of “best interests”.

30    The applicant contended that this error was material as it impacted upon the Tribunal’s assessment of the best interests of Child A, and had the error not occurred, there is a realistic possibility that the decision could have been different, relying on LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610; [2024] HCA 12.

31    I do not consider that the Tribunal has demonstrated illogicality in its reasoning with respect to para 8.4(1) of the Direction for the following reasons.

32    First, I do not accept that the Tribunal demonstrated illogicality in its reasoning as to the applicant’s potential to be a good parent. The relevant question is “whether it was open to the Tribunal to engage in the process of reasoning in which it did engage and to make the findings it did make on the material before it”: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 at [133] (per Crennan and Bell JJ). I do not accept the applicant’s argument that there is no stated countervailing fact which supports the Tribunal’s findings as to the impact of the applicant’s removal on Child A. As submitted by the Minister, the Tribunal earlier expressed findings regarding the potential negative impact on Child A if the applicant were to remain in Australia, including in the event that he were to relapse into drug or alcohol abuse, be aggressive or violent towards Ms E, or re-offend: TD [177]. The Tribunal then states, at [178], “[t]aking all these matters into consideration”, before finding that the value the applicant would add to Child A’s life if he were to remain in Australia is uncertain and the impact on Child A were the applicant to be removed from Australia could not be put much higher than the removal of the potential for him to be a good parent to Child A. As submitted by the Minister, it was open to the Tribunal to take those matters into consideration in accordance with para 8.4(4) of the Direction. It is for the Tribunal to consider the relevant matters and to reach a conclusion after undertaking a weighing exercise.

33    Second, I do not consider that the Tribunal displayed illogicality in its reasoning with respect to its findings on aspects of the applicant’s relationship with Child A. It was plainly open to the Tribunal, in taking into account the matters it set out at TD [176], to not be satisfied that there is a close, meaningful relationship between the applicant and Child A. The Tribunal’s Decision must be read as a whole. The Tribunal’s conclusion that it was not satisfied that there is a close and meaningful relationship between the applicant and Child A, was bolstered by a number of factors that it set out, including that:

    Child A is 14 months old;

    the applicant has been in custody for the entirety of Child A’s life;

    there is limited contact between the applicant and Child A, which is comprised of occasional visits and phone or video calls;

    Child A is barely old enough to communicate even at a basic level;

    Child A is not dependant on the applicant in any way; and

    Ms E fulfils the parental role for Child A, with some assistance from the applicant’s family and her mother.

34    As stated by Crennan and Bell JJ in SZMDS at [135]:

…Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. …

(Emphasis added.)

35    Taking into account the matters set out at [33] above, it cannot be said that there is no logical connection between the evidence and the conclusions drawn as to the nature of the applicant’s relationship with Child A.

36    Further, the Tribunal’s statements as to the lack of ability by Child A to communicate even at basic level do not necessarily suggest that this is the dispositive reason as to why Child A and the applicant do not have a close and meaningful relationship. As contended by the Minister, the Tribunal’s reference to this inability to communicate may have been a reference to Child A’s ability to express any views regarding the nature of the relationship, in accordance with para 8.4(4)(f) of the Direction.

37    Third, I do not accept the applicant’s contention that the Tribunal did not undertake a forward-looking assessment as to the impact of the applicant’s removal on Child A’s life. The applicant referred the Court to the Tribunal’s finding that it was not satisfied that Child A “would feel [the applicant’s] absence to any significant degree if he were deported”: TD [176]. The applicant contended that this ignores the future effect of the decision and indicates that the Tribunal has “crystallised” Child A’s feelings as an infant. There is nothing to suggest that this is case. As stated above, the Tribunal’s reasons must be read as a whole. At TD [178], the Tribunal considers the impact of the applicant’s removal on Child A for “many years to come”.

38    Fourth, the applicant takes issue with the Tribunal assessment of the “value” that the applicant would add to Child A’s life, rather than the broader concept of Child A’s best interests. However, as submitted by the Minister, the value that the applicant is likely to add to Child A’s life is a relevant consideration, as set out in para 8.4(4)(a)-(b) of the Direction. Notably, this was not the only matter that the Tribunal appears to have considered. As contended by the Minister, the Tribunal also considered the potential impact the applicant could have on Child A’s life in the event of relapse or reoffending. Further, the Tribunal considered that there are other persons who fulfil a parent role in Child A’s life. In those circumstances, the Tribunal has not demonstrated a flaw of illogicality in its reasoning.

39    Accordingly, ground one does not succeed.

Ground 2: Did the Tribunal deny the applicant procedural fairness?

40    By ground two, the applicant contended that he was denied procedural fairness as the Tribunal did not put to him or his mother that it had concerns about the reliability of his mother’s evidence. There are two findings which appear to be impugned in respect of this ground.

41    In the context of assessing Primary Consideration 1, the Tribunal stated at [144]:

The Applicant claimed to have recently forged a close relationship with his mother and stepfather. He indicated he is now willing to accept their guidance. They both believe he has changed for the better. The Applicant’s mother appears to have been in denial about some important aspects of the Applicant’s life. For example, she claimed that they always had a good mother-son relationship, and she denied that he had used drugs as a minor. She knew very little about his offending, believing the phone incident was the most serious. I got the impression that she tailored some of her evidence and I do not consider her to be a reliable witness. I do not regard her as much of a protective factor and it is not evident how useful the Applicant’s step-father would be, given he was around for all those years when the Applicant was abusing drugs and alcohol and did not intervene in any significant way.

(Emphasis added.)

42    When considering the strength, nature and duration of the applicant’s ties to Australia, the Tribunal stated at [165]:

The Applicant’s mother used a fair bit of hyperboles in her description of the impact that the Applicant’s deportation would have on her. She referred to the family never seeing him again and said “Just thinking that my son could be deported would cause me pain worse than death”. She did not describe their previous separation in that way, and she is obviously aware that the family can visit the Applicant in Brazil. The Applicant is now an adult with transferrable employment skills and he has relatives in Brazil, so he would not be alone without any form of support. For these reasons, I do not accept the Applicant’s mother’s evidence at face value. However, I do accept that his family are already experiencing emotional hardship due to his predicament, and while they are not financially or practically reliant on him, they will suffer emotional hardship if he is deported. I accept that his mother and brother are particularly impacted. I further accept that any visits to Brazil would deplete their finances.

(Emphasis added, citations omitted.)

43    The applicant relied principally on a decision of the Full Court of this Court in Manebona v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 298 FCR 516; [2023] FCAFC 116 (Logan, Rangiah and Goodman JJ). In that case, the Full Court found that the primary judge erred in failing to find that the Tribunal denied the appellant procedural fairness on the basis of the Tribunal failing to put the appellant or his former partner and the victim of his offending, Ms W, on notice as to its concerns regarding Ms W’s credibility. That case will be considered in further detail below.

44    The applicant submitted that the Tribunal had not warned the applicant or his mother of its concerns as to her reliability. The most that the Tribunal did, the applicant submitted, was question Ms Pessoa as to whether certain of the statements she made were true.

45    As to the Tribunal’s finding at [144] that Ms Pessoa would not be much of a protective factor for the applicant, the Minister contended that such an issue was plainly in issue on the review before the delegate. The delegate of the Minister made the following findings concerning some of the applicant’s protective factors:

88. I note that Mr PESSOA FIRME’s representative has also submits [sic] that a protective factor is the fact that Mr PESSOA FIRME has spent his formative years in Australia, from the ages of 9 to 24 Attachment I1.

89. However, I do not consider the above is a protective factor given that Mr PESSOA FIRME’s time in Australia during his formative years failed to prevent any of his offending.

90. I am conscious that a number of Mr PESSOA FIRME’s character references note the writer’s intention to support Mr PESSOA FIRME in the community and assist with his rehabilitation Attachments U1, V1, V2, W.

91. I accept that Mr PESSOA FIRME has a strong support network of family and friends in the community, including the support he receives from his church, which may mitigate the risk of re-offending. However most of these support networks were in place prior to Mr PESSOA FIRME’s incarceration, and these supports failed to prevent his offending.

(Emphasis in original.)

46    Accordingly, the Minister submitted, the applicant was on notice as to the issue of his family support not being readily accepted as a protective factor, relying on SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 at [35] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ.

47    As to the Tribunal’s reasons at [165], the Minister contended that notwithstanding that the Tribunal found that Ms Pessoa’s evidence contained hyperbole, the Tribunal ultimately accepted that the applicant’s “family are already experiencing emotional hardship due to his predicament” and “will suffer emotional hardship if he is deported”, including that Ms Pessoa would be particularly impacted: TD [165]. The Tribunal found that Primary Consideration 3 weighed heavily in favour of revocation: TD [169].

48    The Minister’s position was that procedural fairness did not require the Tribunal to put to the applicant or his mother that it had concerns about the reliability of his mother’s evidence. This is on the basis that the Tribunal was required to put the applicant on notice of “critical issues or facts on which the decision was likely to turn” (Degning v Minister for Home Affairs (2019) 270 FCR 451; [2019] FCAFC 67 at [12]), which, in the Minister’s submission, was not the case here. The Minister argued that the Tribunal’s concerns were only as to aspects of Ms Pessoa’s evidence, and it was ultimately not a critical or dispositive issue. Noting that a denial of procedural fairness is concerned with practical injustice, the Minister contended that the Tribunal did not deny the applicant procedural fairness.

49    The Minister further submitted that the conclusion reached by the Tribunal that Ms Pessoa is not regarded as much of a protective factor was not a result of its findings as to the reliability of her evidence, but rather arose from her evidence as given, which included a denial about certain aspects of the applicant’s life.

50    In reply, the applicant argued that the relevant issue was not the extent to which his family supports are to be constituted as protective factors, but the reliability of his mother’s evidence. Further, the applicant contended that the adverse credibility finding against Ms Pessoa impacted the reasons and it could not be said, without speculation, that the decision could not have changed had the error not been made.

51    It is necessary to set out the facts of Manebona, given the applicant’s reliance upon it in support of this ground.

52    In Manebona, the Full Court found that the primary judge erred in not finding that the Tribunal denied the appellant procedural fairness with respect to its concerns regarding the credibility of Ms W’s evidence. The Tribunal made findings as to the credibility of Ms W’s evidence in the context of its consideration of para 9.3(1) of Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA. Paragraph 9.3(1) of Direction 90 provides that decision-makers are required to consider the impact of the decision on members of the Australian community, “including victims of the non-citizen’s criminal behaviour”.

53    The pertinent reasons of the Tribunal are set out in Manebona at [48] as follows:

211. The only relevant evidence before the Tribunal comes from the victim of the Applicant's most serious offending, W, who gave evidence before the Tribunal that although her relationship with the Applicant is finished, she has a good relationship with his mother and sister, and was going to his mother's home that evening to attend the Applicant’s brother's birthday. She gave positive evidence regarding the Applicant particularly as to his role as a father, a good person, and an important role model, and requested for the sake mainly of her elder daughter, that the Applicant be allowed to remain in Australia.

212. The Tribunal is concerned that W's evidence has been to some degree compromised by the closeness of her relationship with the Applicant's mother, sister and brother, and tailored in consequence. The Tribunal gives W's evidence little weight in regard to this consideration.

…

214. In the absence of other relevant evidence, the Tribunal gives this Other Consideration neutral weight.

54    In Manebona, the primary judge, in reaching the conclusion that there had not been a denial of procedural fairness, construed para 9.3(1) of Direction 90 in a way which excludes consideration of the impact on a victim of an offender being removed from Australia, which in that case, included adverse financial and emotional consequences. The primary judge also considered that para 9.3(1) of Direction 90 only dealt with the impact on a victim “as a victim”, to the exclusion of other statuses, for instance as a spouse. In that regard, the primary judge considered that the issue of the impact upon Ms W “as a victim of the family violence” had not been raised by the evidence. Accordingly, the primary judge considered that the Tribunal’s concern as to Ms W’s evidence being “compromised” and “tailored” was a concern as to there being no evidence provided regarding the impact upon her as a victim of the family violence.

55    In that case, the Full Court found that Ms W’s evidence was critical or dispositive “in the sense that, if accepted, it may have been of decisive importance”: Manebona at [153]. The Full Court found that the Tribunal’s finding as to the credibility of Ms W’s evidence was not obviously open and that to afford the appellant procedural fairness, the Tribunal should have put the appellant or Ms W on notice of the issue.

56    The principles concerning the requirement to accord procedural fairness are well-established. As stated by the Full Court in Manebona at [147]:

Procedural fairness requires that each party be given a reasonable opportunity to present their case: Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at [40] (Gaudron and Gummow JJ); Sullivan v Department of Transport (1978) 20 ALR 323 at 343 (Deane J). What will constitute a reasonable opportunity depends upon the whole of the circumstances, including the nature of the jurisdiction exercised and the statutory provisions governing its exercise: R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546 at 552-553; SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 (SZBEL) at [26].

57    Procedural fairness in this case required the Tribunal to put to the applicant or Ms Pessoa its concerns about the reliability of Ms Pessoa’s evidence.

58    As argued by the applicant, the Tribunal’s findings in this case appear to be “stronger” that those reached by the Tribunal in Manebona. The Tribunal here explicitly found that it did not consider Ms Pessoa to be a reliable witness. The Minister sought to distinguish Manebona on the basis that in that case the procedural fairness issue was “mixed” with a contention that the Tribunal misunderstood the requirement that it consider the impact of the decision on victims of the non-citizen’s criminal offending. I do not consider that Manebona is distinguishable on this basis, as the question as to whether the appellant was denied procedural fairness was an issue which was dealt with following the Full Court’s findings as to the construction of para 9.3(1) of Direction 90.

59    However, in any event, what the requirement to afford procedural fairness entails will differ according to the facts and circumstances of each case: SZBEL at [26] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ. In the present case, the Tribunal made a finding that some of Ms Pessoa’s evidence was tailored and it did not consider her to be a reliable witness. The nature of a credibility finding is such that it may have infected the Tribunal’s decision-making process. As stated by Gleeson CJ in Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57 at [4] with respect to decisions regarding credibility, and as referred to by the applicant, “an unfavourable view taken upon an otherwise minor issue may be decisive”. An example of this can be seen in TD [187], as referred to by the applicant:

The Applicant’s mother talks to one of her sisters and although she has little contact with her other siblings, they are not estranged, they all love each other. She said her family in Brazil could not help the Applicant in any way, which seems implausible and is an example of where I believe she tailored her evidence.

(Citations omitted.)

60    In addition, as correctly submitted by the applicant, the findings at TD [144] went to the existence of protective factors for the applicant, which impacts the weighing process to be adopted with respect to Primary Consideration 1.

61    Further, I do not accept the Minister’s argument that the applicant was on notice of the issue of Ms Pessoa’s reliability as the Non-Revocation Decision expressed findings regarding the extent to which the applicant’s family supports could constitute a protective factor. As submitted by the applicant, the issue is not confined to whether Ms Pessoa could be a protective factor, but rather the reliability of her evidence generally.

62    I accept the applicant’s submission that had this error not been made, there is a realistic possibility that there could have a different outcome. As stated above, the Tribunal’s findings as to Ms Pessoa’s credibility could have infected the Tribunal’s decision-making process and led to adverse conclusions which could have affected the ultimate decision. In LPDT at [15], the plurality stated:

…Where the error is a denial of procedural fairness arising from a failure to put the applicant on notice of a fact or issue, the court may readily be able to infer that, if fairly put on notice of that fact or issue, the applicant might have addressed it by way of further evidence or submissions, and that the decision-maker would have approached the applicant’s further evidence or submissions with an open mind. In those cases, it is “no easy task” for the court to be satisfied that the loss of such an opportunity did not deprive the person of the possibility of a successful outcome. Importantly, a court called upon to determine whether the threshold has been met must be careful not to assume the function of the decision-maker: the point at which the line between judicial review and merits review is crossed may not always be clear, but the line must be maintained. …

(Emphasis added, citations omitted.)

63    In the present case, the applicant argued that he could have addressed the Tribunal’s concerns as to his mother’s credibility by way of re-examination or further evidence. There is a realistic possibility that the Tribunal may have accepted any explanation or response provided by Ms Pessoa or the applicant and therefore may have placed more weight on her evidence.

conclusion

64    For the above reasons, the application is allowed. The Tribunal’s Decision will be quashed, and mandamus will be ordered with a direction that the Tribunal re-determine the application according to law. The Minister should pay the applicant’s costs of the proceedings as agreed or taxed.

Associate:

Dated:    7 February 2025