Federal Court of Australia

Rangiuia v Minister for Immigration and Citizenship [2025] FCA 920

ORDERS

THE COURT ORDERS THAT:

1.    The name of the first respondent be changed to “Minister for Immigration and Citizenship”.

2.    A writ of certiorari be issued quashing the second respondent’s decision under s 500(1)(b) of the Migration Act 1958 (Cth) made on 12 March 2024 affirming the decision of a delegate of the first respondent which cancelled the applicant’s Class TY Subclass 444 Special Category (Temporary) visa under s 501(2) of the Act.

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

4.    The first respondent pay the applicant’s costs of the proceedings, as agreed or taxed.

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

REASONS FOR JUDGMENT

RAPER J:

1    Mr Rangiuia is a citizen of New Zealand and arrived in Australia in 2011 when he was 17 years old. On 12 September 2023, a delegate of the first respondent Minister cancelled the applicant’s Class TY Subclass 444 Special Category (Temporary) visa (visa) under s 501(2) of the Migration Act 1958 (Cth) on character grounds, namely on the basis of holding a reasonable suspicion that, on account of Mr Rangiuia having an association with a motorcycle group involved in criminal conduct: ss 501(2) and 501(6)(b) of the Act.

2    The decision of the delegate was thereafter the subject of two applications for judicial review before the (former) Administrative Appeals Tribunal. On 12 March 2024, the Tribunal affirmed the delegate’s decision: Rangiuia and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 608. Mr Rangiuia sought to review that decision in the Federal Court, and on 10 July 2024, consent orders were made quashing this first review decision and remitting the matter to the Tribunal to be determined according to law. On 8 October 2024, the Tribunal, for a second time, affirmed the delegate’s 12 September 2023 decision, to cancel the applicant’s visa: Rangiuia and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 3550 (AAT or T). It is this decision that is the subject of review before this Court.

3    Mr Rangiuia seeks orders of certiorari or a declaration setting aside or quashing the Tribunal’s decision and a writ in mandamus for the matter to be remitted back to the Administrative Review Tribunal and determined according to law by a different Tribunal member.

4    The application advanced four grounds of review: First, whether the Tribunal misconstrued Direction No 110: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (7 June 2024). Secondly, whether the Tribunal’s decision was affected by apprehended bias. Thirdly, whether the Tribunal made irrational or illogical factual findings with respect to the legal consequences of its decision and the practical impediments Mr Rangiuia would face should he be removed; and, fourthly, by the weight attributed to certain factors, reasoned illogically such that the Tribunal’s decision was legally unreasonable.

5    For the reasons which follow, Mr Rangiuia succeeds on one aspect of the first ground, namely that the Tribunal erred by failing, as required in para 8.4(3) of the Direction, to give “individual consideration” to the best interests of each child where that individual consideration, was to be directed to each of the matters identified in para 8.4(4), in this case at para 8.4(4)(a), (b) and (d), in respect of each child. Otherwise, Mr Rangiuia has failed to make out his other bases for review. Orders will be made setting aside the Tribunal’s decision and remitting the matter for determination according to law. The Court makes no order as to whom it is to be remitted as no submission was made as to why it should be remitted to a differently constituted Tribunal. The Minister should pay Mr Rangiuia’s costs of the proceedings.

Legislative framework

6    Section 501(2) of the Act confers a discretion on the Minister to cancel a visa if the Minister reasonably suspects that the person does not pass the character test and the person does not satisfy the Minister that the person passes the character test.

7    Amongst other circumstances, but relevant to this case, a person does not pass the character test if the Minister reasonably suspects that the person has been or is a member of a group or organisation, or has had or has an association with a group, organisation or person; and that group, organisation or person has been or is involved in criminal conduct: s 501(6)(b).

8    The Tribunal has the power, under s 500(1)(b), to review the decision of the delegate of the Minister.

9    In exercising the discretion under s 501(2), the Minister, or thereafter the Tribunal on review, is required to consider and apply the Direction, given by the Minister pursuant to s 499(1) of the Act: s 499(2A). The Direction was made on 7 June 2024 and commenced on 21 June 2024. As a consequence, the Tribunal is bound to comply with this Direction.

10    The purpose of Direction is to guide decision makers when they perform functions or exercise powers under, in part, s 501 of the Act. The Direction stipulates principles which form the framework for the approach to be taken in deciding whether to refuse or cancel a non-citizen’s visa (para 5.2). Those principles include the requirement that decision makers must take into account primary (set out in para (8)) and other considerations (set out in para (9)) relevant to the individual case (para 5.2(7)). Paragraph 7 describes the weight that should be attributed to various considerations. Sub-paragraph 7(2) notes that “generally” the primary consideration at para 8.1 (protection of the Australian community) is to be given greater weight than other primary considerations. Otherwise, “generally” primary considerations are to be given greater weight than other considerations.

11    The primary considerations, relevant to this application, are the protection of the Australian community (para 8.1), family violence engaged in by the non-citizen (para 8.2), the strength, nature and duration of ties to Australia (para 8.3), the best interests of minor children in Australia affected by the decision (para 8.4), and the relevant other considerations are the extent of impediments if removed (para 9.2).

The Tribunal’s decision

12    There was no dispute before the Tribunal that Mr Rangiuia had been a member of the “Bandidos outlaw motorcycle gang”: AAT[5]. As such, there was no dispute that the Tribunal ought be satisfied that Mr Rangiuia did not pass the character test pursuant to s 501(6)(b). It followed that the issue for the Tribunal was whether to exercise its discretion and cancel Mr Rangiuia’s visa, under s 501(2), having been guided by the relevant considerations specified in the Direction.

13    The Tribunal set out and gave consideration to the principles set out in the Direction. I note the following with respect to those parts of the Tribunal’s reasons that are relevant to this review. The Tribunal concluded in respect of the protection of the Australian community (para 8.1), that the nature and seriousness of Mr Rangiuia’s conduct was very serious (para 8.1.1) (AAT[33]) and Mr Rangiuia presented as a moderate risk of reoffending (para 8.1.2). At AAT[33], with respect to para 8.1.1, the Tribunal found:

With respect to the nature and seriousness of the applicant’s conduct, I conclude that his criminal and gang related conduct was very serious. He was a member of a gang from 2017 to at least July 2022 and he offended regularly from 2019 until 2021. His acts of family violence commenced in April 2018 and his final offence of possessing drugs was in March 2024. This represents a very significant period of unacceptable behaviour which has had a significant cumulative effect.

14    As a consequence, this factor weighed heavily in favour of exercising the discretion to cancel the visa (AAT[41]).

15    What is evident from the reasoning is that the Tribunal was influenced by the very serious criminal conduct which included recent conduct. In between, the Tribunal making the decision on 12 March 2024 and it being quashed in July 2024, Mr Rangiuia’s partner supplied him with cannabis, for which Mr Rangiuia was charged with possessing dangerous drugs and convicted and fined $250 on 24 April 2024. As will be apparent from the grounds of review, this (mis)conduct compounded the Tribunal’s concerns as to risk of future offending.

16    In its consideration of family violence history, the Tribunal found that Mr Rangiuia’s domestic violence history was a factor that weighed very heavily in favour of cancellation when considering his moderate risk of further offending and multiple acts of family violence (AAT[52]–[53]). In respect of the strength, nature and duration of ties Mr Rangiuia had to Australia, the Tribunal found that Mr Rangiuia has lived in Australia since he was a teenager, has three children in Australia, and has maintained employment in Australia, such that this is a factor that weighs in favour of not cancelling the visa (AAT[60]). In considering the best interests of minor children (para 8.4), the Tribunal noted Mr Rangiuia’s three children have very significant health issues, and that Mr Rangiuia has played a positive role in the lives of other parents’ children, finding the best interests of the children is a “most significant factor” (AAT[65]). With respect to the expectations of the Australian community (para 8.5), Mr Rangiuia’s failure to obey Australian law, association with outlaw motorcycle gangs and repeated engagement in domestic violence, meant that the Australian community would expect that Mr Rangiuia would not continue to hold a visa and weighed heavily in favour of cancellation (AAT[68]). With respect to impediments to return to New Zealand (para 9.2), the Tribunal considered that this consideration was of minimal weight given Mr Rangiuia grew up in and has family in New Zealand and could maintain basic living standards, although it noted the impact on his mental health conditions (AAT[81]).

17    Ultimately, the Tribunal weighed the considerations and found that the factors in favour of cancellation outweighed those against cancellation.

The four grounds of review

18    The four grounds of review require that the following issues require determination:

(a)    whether the Tribunal misconstrued or misapplied the Direction, by, among other things, failing to give proper consideration to the evidence before it, including that of Dr Kwok, and failing to perform the requisite weighing exercise in relation to his risk of reoffending (including the effect of his substance and alcohol rehabilitation), family violence, and the best interests of children (ground (a));

(b)    whether the Tribunal’s decision was infected by apprehended bias because, in weighing the primary considerations, the Deputy President stated his “personal view”, at T[87], that a non-citizen who is a member of an outlaw motorcycle gang who has frequently committed drug related crimes over a significant period of time and has been violent towards their partner cannot expect to remain in Australia (ground (b));

(c)    whether the Tribunal engaged in illogical, irrational or unreasonable reasoning by finding that the extent of the impediments that the applicant may face in his home country should be given minimal weight (ground (c)); and

(d)    whether the Tribunal’s decision is vitiated by legal unreasonableness because the Tribunal placed excessive weight on evidence that did not support Mr Rangiuia’s case, and little weight on evidence that did (ground (d)).

Ground (a)—The Tribunal misconstrued and misapplied the Direction in part

19    It was difficult to decipher, with precision, each of Mr Rangiuia’s arguments, that fell under ground (a). There was no clear connection between the allegations contained in his application, in his written submissions and then in oral submissions. At hearing, Mr Rangiuia’s Counsel accepted that, in essence, Mr Rangiuia sought to impugn the Tribunal’s reasoning in six aspects, by contending the Tribunal:

(i)    failed, as required by para 8.1.2(2)(b) of the Direction:

(A)    to consider the extensive rehabilitation programme undertaken by Mr Rangiuia and his relapse prevention plan, to address his offending conduct and substance and alcohol abuse;

(B)    failed to properly understand and apply the evidence of Dr Kwok by misapprehending her nuanced evidence, and focusing on one aspect of her report where she opined that Mr Rangiuia was a “moderate risk of re-offending” rather than the qualifications she had given to that opinion and her evidence that he had “positively focussed on rehabilitation”;

(C)    erred in finding, at T[37], that if Mr Rangiuia continued to take illegal drugs once released from detention, then it was likely that his life of crime and family violence would continue where there was no evidence to support a causal connection between his past illegal substance use and criminal offending (particularly family violence);

(D)    erred in finding that Mr Rangiuia was at moderate risk of engaging in further domestic violence, and relatedly to (i)(B) above, by misunderstanding the evidence of Dr Kwok;

(ii)    failed to consider the best interests of each of Mr Rangiuia’s children (misapplying 8.4(4)) when considering the nature and duration of the relationship between the child and the non-citizen (para 8.4(4)(a)), the length of time until each child turns 18 (para 8.4(4)(b)) and the likely effect that any separation from the non-citizen would have on the child (para 8.4(4)(d)); and

(iii)    failed to give proper attention to the extent of the impediments (para 9.2) Mr Rangiuia faced if removed, by reason of the purported failure to give consideration to the evidence of Dr Kwok and Mr Rangiuia’s mental health conditions.

20    As can be seen from the above, the various claims made by Mr Rangiuia are that the Tribunal fell into error by misconstruing or misunderstanding its powers and thereby misapplying them in relation to the Direction, couched broadly as to constitute a failure to consider, understand, give attention to, or find certain things, such that there was a lack of active and intellectual engagement with the issues.

21    Mr Rangiuia contended that the Tribunal was required to actively and “intellectually” engage with his evidence by reference to the requirements of the Direction; failing which, that itself, “bespeaks error” in the sense described in Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 at [85] per Hayne, Kiefel and Bell JJ):

The Tribunal’s error might be identified as giving too much weight to the fact that Ms Li had had some opportunity to present evidence and argument and insufficient weight to her need to present further evidence. It would not appear that the Tribunal had regard to the purposes for which the statutory discretion in s 363(1)(b) is provided in arriving at its decision. It is not possible to say which of these errors was made, but the result itself bespeaks error. In the circumstances of this case, it could not have been decided that the review should be brought to an end if all relevant and no irrelevant considerations were taken into account and regard was had to the scope and purpose of the statute. Because error must be inferred, it follows that the Tribunal did not discharge its function (of deciding whether to adjourn the review) according to law. The Tribunal did not conduct the review in the manner required by the Migration Act and consequently acted beyond its jurisdiction.

(Footnotes omitted, emphasis added.)

22    It may be accepted that a failure to comply with the express requirements of the Direction as to the considerations to be taken 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 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 19 at [6] per 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] per Katzmann, Jackson and McEvoy JJ.

23    As Feutrill J observed in CJO23 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 1228 at [47], 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] per French CJ, Kiefel, Bell and Keane JJ.

24    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: Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; 275 CLR 582 at [27] per Kiefel CJ, Keane, Gordon and Steward JJ.

25    At hearing, Mr Rangiuia submitted variously, that by operation of s 43(2B) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal was required to not only give reasons for the decision but give “a reference to the evidence and material on which those findings were made”. I do not accept that this obligation arises from the AAT Act or otherwise.

26    It was submitted that the Tribunal was required, by reason of the inquisitorial nature of its task, to consider all of the evidence in the material before it (regardless of whether Mr Rangiuia took the Tribunal to it). This was said to be so because the Tribunal was tasked with considering certain mandatory considerations under the Direction, and certain authorities supported this. Reliance was placed on the reasoning in Hong v Minister for Immigration and Border Protection [2019] FCAFC 55; 269 FCR 47 at [65]–[66] per Bromwich and Wheelahan JJ; Benjamin v Repatriation Commission [2001] FCA 1879; 70 ALD 622 at [47]. However, at hearing, Mr Rangiuia’s Counsel conceded that Hong is not authority which is supportive of this proposition. Reliance was also placed on Uelese at [61], [68] per French CJ, Kiefel, Bell and Keane JJ. This authority also does not support Mr Rangiuia’s contention. Each of the authorities referred to in Uelese and CJO23 refer to the inquisitorial nature of the task but say nothing of the degree of prescription, in terms of referencing the evidence relied upon, said to have been required by s 43(2B) of the AAT Act.

The Tribunal did not fail to properly consider the matters it was required to consider under para 8.1.2(2)(b) of the Direction

27    According to Mr Rangiuia, para 8.1.2(2)(b) of the Direction required the Tribunal to properly consider the likelihood that he would engage in further criminal or serious conduct by reference to matters, including the criteria it prescribed at para 8.1.2(2)(b)(i)–(ii). Emphasis was placed on the requirement to consider information and evidence on the risk of re-offending and evidence of rehabilitation achieved by the time of the decision. It was submitted that the Tribunal had not done this.

28    Paragraph 8.1.2 of the Direction provides, in full:

8.1.2. The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct

(1)     In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government's view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.

(2)     In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:

a)     the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and

b)     the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:

i.     information and evidence on the risk of the non-citizen reoffending; 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 (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).

c)     where consideration is being given to whether to refuse to grant a visa to the non-citizen -whether the risk of harm may be affected by the duration and purpose of the non-citizen's intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.

(Emphasis added).

29    It is worthwhile turning to how the Tribunal dealt with this consideration. In dealing, as it was required, with the likelihood of Mr Rangiuia engaging in further criminal or other serious conduct, under para 8.1.2(2)(d) of the Direction, the Tribunal determined that Mr Rangiuia was a “moderate risk of reoffending and has not shown himself to be adequately rehabilitated”: AAT[41]. The Tribunal’s path to this conclusion is contained at AAT[37]–[40], which is extracted in full:

37. The applicant has expressed remorse for his offending and has committed no acts of family violence since December 2020. He has engaged in some rehabilitative programs to address family violence issues. He has also engaged in alcohol and drug rehabilitation but it is of concern that as recently as March this year he caused illegal drugs to be smuggled into the detention centre because he was going through a difficult time. This suggests that despite rehabilitative programs the applicant still turns to drugs as a coping mechanism and that he has not learnt that it is wrong to break the law. If released he will have the support of his partner, but she may not necessarily be the best influence on him because she was the person who, at his request, brought the drugs to him in detention earlier this year. If he continues to break the law and take illegal drugs once released from detention, then it is likely that his life of crime and family violence will continue.

38. I take into account the numerous letters of support from friends and colleagues who would be available to provide support to the applicant if he were to be released. These friends together with his partner and her family would provide a stable environment which would help him to not reoffend.

39. In considering the likelihood of further offending, I give significant weight to the report from Dr Emily Kwok dated 16 September 2024 and her oral evidence to the Tribunal. She noted that the applicant has poor coping skills and will be at risk of relapsing to substance use without adequate alcohol and drug and psychological intervention. She concluded that the applicant has a moderate risk of engaging in further domestic violence and that, without individualised alcohol and drug and psychological intervention, the applicant was a moderate risk to the Australian community in terms of his general behaviours. She said that his risk of reoffending is reducing. In her oral evidence under cross examination, she referred again to the applicant’s poor coping skills and explained how that relates to his ability to manage stressful situations. She said that it increases his risk of relapse to drugs in a stressful situation.

40. I consider it very likely that the applicant will face very stressful situations if he is released mainly because of the disabilities of his children. The applicant’s partner explained in great detail how difficult it is for her in dealing with her children who have special needs. It is likely that, if released, the applicant would turn to illegal drugs and alcohol as a coping mechanism for this stressful environment and this would likely result in further offending and acts of family violence. I accept the opinion of Dr Kwok that he is a moderate risk of further family violence and offending more generally. Given the seriousness of his past conduct, I consider that this represents an unacceptable risk to the Australian community.

30    Mr Rangiuia’s four bases for attempting to impugn the Tribunal’s ultimate conclusion at AAT[41], proceed by challenges to its findings which form the basis for that conclusion: first, by the allegation of a purported failure to consider the purported “extensive” rehabilitation programme undertaken by Mr Rangiuia and his relapse prevention plan (considered in AAT[37]); secondly, by the alleged failure to properly understand Dr Kwok’s evidence and to focus on that aspect of her report where she opined as to his “moderate risk of re-offending” rather than the qualifications she gave for that opinion and her belief that he was “positively focussed on rehabilitation” (dealt with at AAT[39]–[40]) and erred in finding that Mr Rangiuia was a moderate risk of engaging in further domestic violence; thirdly, by submitting that the Tribunal erred in finding, at AAT[37], that if Mr Rangiuia continued to take illegal drugs once released from detention, then it was likely that his life of crime and family violence would continue where there was no evidence to support a causal connection between his past illegal substance use and criminal offending (particularly family violence); and fourthly, that in finding that Mr Rangiuia was at moderate risk of engaging in further domestic violence, such a conclusion arose from a misunderstanding of Dr Kwok’s evidence.

31    As to the first basis for challenge, the Tribunal specifically found that Mr Rangiuia had engaged in some rehabilitative programmes to address family violence issues and had engaged in alcohol and drug rehabilitation: AAT[37]. The omission of Mr Rangiuia’s evaluative descriptor of “extensive” goes no way to demonstrate that the Tribunal failed to consider nor failed to undertake the requisite evaluative task.

32    It is not evident from the evidence what Mr Rangiuia took the Tribunal to when making his submissions regarding his attempts at rehabilitation, save for what is contained in his Statement of Facts, Issues and Contentions. In this respect, the Statement refers to him having “engaged in multiple rehabilitation programs addressing substance abuse and actively participating in domestic violence intervention courses” without any specificity. He also submitted to having voluntarily ended his association with unlawful gangs and organisations. The Court was not provided with an entire transcript of the proceedings.

33    The portions of the material before the Tribunal, now relied upon, revealed that Mr Rangiuia attended courses in late December and early January 2023 and in August 2024 (no detail is given as to the extent of their content (save for a title), the duration of the courses nor whether there was any assessment upon completion). Reference was also made to Mr Rangiuia’s statement which refers to Smart Recovery courses in March and April 2024 and to a domestic violence course. In addition, reliance was placed on inquiries Mr Rangiuia had made to attend other rehabilitation courses.

34    I do not accept that the Tribunal was required to set out the details of each of the courses undertaken. I do not accept that it can be inferred that the courses were not taken into account. Specific reference was made to rehabilitative programs to address family violence issues and also to Mr Rangiuia’s engagement in alcohol and drug rehabilitation (AAT[37]) and to specific programs, including the “Smart Recovery courses”, “weekly ‘Man Up’ church group by video” and a “10 week Circuit Breaker course” (AAT[50]). There is further reference at AAT[52] to Mr Rangiuia having engaged in rehabilitation programs in the context of his propensity to continue offending. Notably as well, the Tribunal also had before it, and considered, Dr Kwok’s report, which observed that these courses were ill-suited to Mr Rangiah and targeted at healthcare professionals which was referred to in the next paragraph of its reasons: AAT[51]].

35    It is apparent from the Tribunal’s reasons, that ultimately the Tribunal determined, that it did not place much weight on those efforts at rehabilitation because as recently as March 2024 “[Mr Rangiuia] caused illegal drugs to be smuggled into the detention centre because he was going through a difficult time”, which in turn “suggests that despite rehabilitative programs [he] still turns to drugs as a coping mechanism and that he has not learnt that it is wrong to break the law” (at AAT[37]), and Dr Kwok herself opined that Mr Rangiuia posed a “moderate risk of further domestic violence”: AAT[52].

36    An attempt was made to impugn this aspect of the Tribunal’s reasons by claiming that the Tribunal failed to properly consider the medical certificate dated 23 April 2024 stating that Mr Rangiuia had a medical condition and had been on prescription based medicinal cannabis since May 2022 such that this raises questions about Mr Rangiuia’s mindset about cannabis being an “illegal drug” and whether he thought he was “breaking the law”, such that it was not open for the Tribunal to find that Mr Rangiuia had not “learnt that it is wrong to break the law”. I reject this submission. First, the Tribunal specifically referred to the medical certificate, but found, that “however”, Mr Rangiuia had accepted that his receipt of marijuana whilst in detention was unlawful and he admitted asking his partner to bring it to him because he had just been told that his first application to the Tribunal was unsuccessful amongst other things: AAT[25]. Secondly, there is no evidence to demonstrate that a submission was made to the Tribunal that any question was raised as to Mr Rangiuia’s mindset about cannabis being an “illegal drug” nor, more critically, that such evidence was advanced before the Tribunal that Mr Rangiuia did not know he was breaking the law. Indeed, in the clinical notes recorded by a “D&A Nurse” on 3 January 2024 (two months before the smuggling incident), Mr Rangiuia reported that “he had been prescribed medical marijuana in the community but has been informed he cannot have this in detention. Jarrod stated that he had come to terms with this.”

37    I also reject Mr Rangiuia’s submission that it was not open for the Tribunal to be circumspect about the support Mr Rangiuia will receive from his partner if released by virtue of what can be gleaned from her facilitating his unlawfulness. Again, a submission, without evidentiary foundation, was made to the effect of Mr Rangiuia being prescribed medicinal cannabis. There was no evidence that what Mr Rangiuia’s partner gave to him in detention was prescribed. The finding, at AAT[25], illustrates, if anything, the contrary: Mr Rangiuia accepted that he had engaged in unlawful activity and admitted asking his partner to bring it to him.

38    I do not accept that the fact of the medical certificate nor selected extracts from Dr Kwok’s oral evidence demonstrate anything remotely that could give rise to jurisdictional error.

39    An agreed transcript between the parties of the evidence revealed the following exchange which related to the issue of Mr Rangiuia’s partner:

Mr Hutton:     … you refer … to [the applicant] telling you about an incident where he asked his partner to bring him medicinal marijuana and that the incident has now resolved. Was there any further detail that he provided to you about that incident?

Dr Kwok:     No, that was just mentioned that

Mr Hutton:     Okay. In terms of, do you have any experience with medicinal marijuana as a practitioner?

Dr Kwok:     I do not prescribe in my role as a psychologist, I have only treated clients who use, so I do not have direct, direct prescription or use of them with my clients

Mr Hutton:     But would the ordinary course with medicinal marijuana, if it was being used for a lawful purpose, is that there'd be a prescription issued generally by a treating medical practitioner, and that it would be provided from a chemist to a recipient.

Dr Kwok:     To my understanding, yes,

Mr Hutton:     So it wouldn’t ordinarily be given through someone's partner providing them with marijuana.

Dr Kwok:     No, no, I can only speculate if you have some unused prescription or unused medical marijuana that she had and she was bringing that and I am only speculating I don’t know

Mr Hutton:     That’s fine. Would it, given Mr Rangiuia’s history of drug use that you’ve documented, would it, do you think it would be a concern in terms of his risk of recidivism if his partner had brought him marijuana whilst he was in detention? And say that was not, assuming that was not lawfully provided, and I just say that in the context of whether or not that would be an issue in terms of his pro social supports on release from detention,

Dr Kwok:     I would, I would have to speculate once again, not knowing the details of the incident, whether his partner she had assumed she was bringing a prescribed medicine, some sense of her attitude,

Mr Hutton:     can I get you to assume that he was convicted for possessing that marijuana,

Dr Kwok:     if he was convicted for, if he was convicted for that drug, for the medicinal marijuana you mean?

Mr Hutton:     Yes, but for possession of Marijuana that had been provided in the circumstance that you described in paragraph 47 by his partner to him in immigration detention.

Dr Kwok:     Or perhaps, I may not be answering or responding to your questions directly, or perhaps there would be a need to involve his partner in some of the drug and alcohol counselling that had recommended so that she can also be educated. Maybe that would resolve I don’t I’m not answering your question directly that may impact on the treatment, that we involve the partner in some part of the treatment. So she also understands that his needs to abstain from drugs, and so that she’s also on board of what it would require to not relapse.

Mr Hutton:     In terms of the just skipping ahead to paragraph 67 of your report, where you’re talking about the eight risk need factors that form part of the ODARA report. So if his partner had been providing him with illegal marijuana. Would that be relevant to things like the third factor that you’ve got there in terms of social supports for crime or the fifth factor there family, marital relationships? Would that feed into that assessment, potentially,

Dr Kwok:     If his partner is bringing an illicit drug and not a prescribed medicine, and she knowingly is bringing an illicit drug, then yes, that that would impact on the level of order or the type of support that he has, if she was bringing it as thinking, understanding that it was a medicine, once again then she may just have to be educated as well on what he requires in the future.

40    What is evident from this evidence is that Dr Kwok was not aware of the details of March 2024 (dealt with further below). Dr Kwok is asked to speculate as to various matters by both sides. To the extent that Counsel for Mr Rangiuia suggested that the Tribunal ought to have adopted the same approach as Dr Kwok when considering Mr Rangiuia’s partner’s “intention”, nothing can be gained from that submission. It was for Mr Rangiuia to persuade the Tribunal as to the extent to which he was aware that it was unlawful to arrange for his partner to deliver him (medicinal or otherwise) cannabis. Here, neither Mr Rangiuia nor his partner explained their states of mind when the drugs were taken into detention. There is an admission on Mr Rangiuia’s part during the hearing: AAT[25].

41    Counsel for Mr Rangiuia made submissions, with respect to this paragraph, and speculated as to whether this admission may be a mere understanding of the applicant after the event. It does not show his mindset when it actually occurred, whether or not he intended or knew that it was illegal, whether he thought it was illicit substances or whether he thought it was just his prescription medicine. That it could just be a statement from the applicant saying, “I did that. I got in trouble for it, I was charged. And now I know that that was wrong. I shouldn’t have done that”. I do not accept this submission for the reasons already given.

42    Further, Dr Kwok’s report does not assist Mr Rangiuia. Dr Kwok states that Mr Rangiuia reported to her that the March incident occurred when he asked his partner to bring him “his medicinal marijuana”. He said the incident has now resolved. However, in the same report, Dr Kwok stated that “Mr Rangiuia said he was using medicinal marijuana until he was in immigration detention. He denied any use of marijuana in detention and stated that he is given Panadol when he asks for pain medication” (emphasis added.) Further, as adverted to above, two months before the incident, Mr Rangiuia had reported to a nurse that “he had been prescribed medical marijuana in the community but has been informed he cannot have this in detention. Jarrod stated that he had come to terms with this” (emphasis added). This evidence does not tend to support Mr Rangiuia’s speculative thesis as to Mr Rangiuia's or his partner’s state of mind at all.

43    It is apparent that Mr Rangiuia’s challenge involves impermissible merits review. The Tribunal at AAT[37] made findings that Mr Rangiuia had caused drugs to be brought into the detention centre where he was detained as “a coping mechanism”. It was open for the Tribunal to make such a finding given what it had found at AAT[25]. There was nonetheless acknowledgement, and an apparent favourable inference drawn, in the penultimate sentence in AAT[37] that Mr Rangiuia would receive some support from his partner. However, the Tribunal noted that the partner would not necessarily be the best influence on him given she was the person who had brought those drugs into the detention centre at his request. Such a finding was entirely open on the facts of this case.

44    As to the second basis for impugning this aspect of the Tribunal’s reasons, at AAT[37], Mr Rangiuia alleged that the Tribunal failed to properly understand Dr Kwok’s evidence and to focus on that aspect of her report where she opined as to his “moderate risk of re-offending” rather than the qualifications she gave for that opinion and her belief that he was “positively focussed on rehabilitation” (dealt with at AAT[39]–[40]) and erred in finding that Mr Rangiuia was a moderate risk of engaging in further domestic violence, on the basis that there was no evidence supportive of a causal connection between Mr Rangiuia’s past illegal substance use and criminal offending (particularly family violence). Mr Rangiuia submitted that the Tribunal further erred in finding that if Mr Rangiuia continued to take illegal drugs once released from detention, then it is likely that his life of crime and family violence will continue (at AAT[37]) where there is no evidence to support a causal connection between Mr Rangiuia’s past illegal substance use and criminal offending (particularly family violence).

45    I reject these submissions. First, for the reasons set out below, the Tribunal did understand the “qualifications” Dr Kwok gave in her report. Secondly, a comment made, under examination, as to a “positive focus” did not lead to her opinion being further qualified or downgrading the level of risk described in her report. Thirdly, it was clear, from Dr Kwok’s report, that she considered the risk of reoffending from “substance abuse” (without the delineation as between alcohol and other substance abuse). Fourthly, it was clear that the Tribunal understood the different levels of risk of domestic violence as opposed to general offending and also the qualifiers identified by the Tribunal.

46    The Tribunal expressly referred to Dr Kwok’s evidence and placed “significant weight” upon it: AAT[39], [40], [52] and [80]. This review Court should be slow to infer that because a particular statement in Dr Kwok’s report or in her oral evidence was not referred to expressly it was overlooked. The better inference, for the reasons set out below, is that the Tribunal did not refer to other parts of Dr Kwok’s evidence because it did not consider that evidence to be pertinent to the findings on questions of fact that it (subjectively) considered to be material (Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 at [69] per McHugh, Gummow and Hayne JJ) or the findings that it did make subsumed those parts of her evidence to which the applicant draws attention in his submissions: WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; 236 FCR 593 at [47].

47    I do not accept that the Tribunal failed to properly understand Dr Kwok’s evidence. Under the heading “Assessment of risk of re-offending”, Dr Kwok found, according to the Ontario Domestic Assault Risk Assessment tool, Mr Rangiuia’s score placed him in “risk category of 5”, which predicts that approximately 39% of individuals within this risk category commit another assault against their partner (which comes to the attention of the police) within an average of about five years: [64]. The items which were said to contribute to that score included “substance use (including alcohol) at the time of offending”. Notably, therefore Dr Kwok had taken into account not only Mr Rangiuia’s history of alcohol but also other substance abuse, which she had outlined at [19]–[23] of her report.

48    What is also notable is that Dr Kwok had understood, for the purpose of her risk findings, that Mr Rangiuia had not used marijuana in detention (at [21]) and had understood the circumstances of the smuggling incident to involve “ask[ing] [Mr Rangiuia’s partner] to bring him his medicinal marijuana” where he said the “incident was now resolved”: [47]. It does not appear that Dr Kwok was made aware of him being charged with an offence.

49    What is also apparent is that Dr Kwok thereafter identified eight major “Risk/Need Factors” (“which provide the assessing clinician with a structured professional understanding of the general risk of re-offending and, therefore, level of therapeutic need”). Those factors, were not limited to “substance abuse”, nor split between the different types of substances Mr Rangiuia had a history of abusing, but included a number of factors, which were:

67.     Major Eight Risk/Need Factors

1)     Antisocial personality pattern. Mr Rangiuia’s offending history began as a juvenile in New Zealand. He has a history of antisocial behaviours over the years although many of these were displayed as minor offences (e.g. public nuisance).

2)     Pro-criminal attitudes. Mr Rangiuia recognised the seriousness of his offending and accepted responsibility for his behaviours. He did not display pro-criminal attitudes at the assessment.

3)     Social supports for crime. Mr Rangiuia claimed he has ceased contact with criminal organisations.

4)     Substance abuse. Mr Rangiuia has an extensive history of substance use and alcohol use. He said he ceased buying marijuana in around 2022 but this was replaced by medicinal marijuana. Mr Rangiuia stated that he had begun to reduce his alcohol intake before he was taken to immigration detention. He said he has not used alcohol since April or May 2023.

5)     Family/marital relationship. Mr Rangiuia’s own family lives in New Zealand. He described a currently positive relationship with [Mr Rangiuia’s partner] and it appears that she is supportive of him staying in Australia. She also facilitates contact between Mr Rangiuia and his daughters.

6)     School/work. Apart from the time off work during his back injury, Mr Rangiuia had consistent employment as a landscaper before he was detained.

7)     Prosocial recreation activities. Mr Rangiuia claimed he had ceased contact with antisocial networks. He did not report any prosocial activities. It is likely that his activities will revolve around his children is he is permitted to return to the Australian community.

8)     Criminal history. In addition to the domestic violence offences, Mr Rangiuia has a history of multiple minor offences between November 2014 and June 2021. On 28 May 2023, he was charged for supplying dangerous drugs, namely cannabis, to another person. 18 July 2019, he was found guilty of obstruct police officer.

50    After considering the eight major “Non-criminogenic, Four Risk/Need Factors”, Dr Kwok concluded at [69]:

69    Based on the above factors and the available information at the time of assessment, it is my clinical opinion that Mr Rangiuia has a moderate risk of re-offending if he does not engage in intervention that specifically targets his criminogenic needs. He will need guidance with finding suitable intervention.

51    Dr Kwok was critical of the drug and alcohol recovery programs and courses on addressing domestic violence which Mr Rangiuia had undertaken. For example, Dr Kwok sets out a number of drug and alcohol and domestic violence online courses that Mr Rangiuia had undertaken, but then stated that the “majority” of those courses “are not the most suitable for him”. Dr Kwok also noted that Mr Rangiuia had missed several drug and alcohol and mental health consultations, declining to attend some of them. Dr Kwok made recommendations that Mr Rangiuia be “more reliable with his attendance”, and that he requires further alcohol and drug counselling “if he is permitted to remain in Australia”. Dr Kwok also recommended that Mr Rangiuia “attend individual AOD counselling and psychological therapy sessions to address his maladaptive methods of coping.”

52    At [85], Dr Kwok again referred to the ODARA score and stated “[t]his places him in the moderate risk of further domestic violence.” She referred to accepting that his interactions with his partner had improved after ceasing alcohol, his partner’s support for him remaining in Australia and her facilitation of contact with the children and to him completing a course on domestic violence. Dr Kwok referred to the “potential” for these factors lowering the risk but qualifies this: “He would, however, need individual intervention that specifically targets his domestic violence”. Immediately thereafter, Dr Kwok, contrasts this “moderate risk” with what she believed to be the “low risk” of Mr Rangiuia offending outside a domestic setting and when he is not using alcohol.

53    A fair reading of AAT[39], is that the Tribunal was aware of the risks of domestic violence offending and other criminal offending and the associated qualifiers. The Tribunal summarises accurately the import of Dr Kwok’s opinions, as contained in both [69] and [85] of her report. The Tribunal refers to what it understood to be the effect of Dr Kwok’s evidence of the “risk of reoffending” said to be “reducing”. It can be inferred that this reflects consideration of Dr Kwok’s evidence at [84]–[85], as well as of her oral evidence (which the Tribunal referred to) regarding Mr Rangiuia’s prognosis for rehabilitation being positive. Much was made by Mr Rangiuia of one comment made by Dr Kwok, in answer to a question from the Tribunal, where Dr Kwok was of the view that the prognosis (of rehabilitation) was positive. However, it must be understood that the question which elicited this answer, included taking Dr Kwok to her view of Mr Rangiuia posing a moderate risk of further domestic violence offending. Despite Dr Kwok stating that the prognosis was positive, it is apparent that she did not seek to downgrade the risk Mr Rangiuia posed. Further, Dr Kwok referred to the need for some individualised counselling which “specifically” targeted Mr Rangiuia’s poor coping mechanisms. It can be inferred that the Tribunal took this into account, the Tribunal used the very word which Dr Kwok did regarding his level of risk “reducing”.

54    Further, Dr Kwok, in this answer referred to a continued, qualifier in her report, which the Tribunal had its own concerns about, being Mr Rangiuia’s poor coping mechanisms. Dr Kwok first recounts Mr Rangiuia’s self-reporting that he used marijuana to help him sleep ([19]) and drank alcohol to cope with family losses ([23]). Dr Kwok then stated that Mr Rangiuia had a history of “substance use disorder that likely stemmed from his poor coping of adverse childhood experiences, and general poor coping of stress” ([68(3)] and that Mr Rangiuia had “claimed that his problem with addiction stemmed from his inability to cope with losses and in particular, the loss of loved ones during his childhood” ([71(2)]). In relation to domestic violence and coping with stressors, Dr Kwok stated that Mr Rangiuia needed psychological intervention to fill this “gap” by teaching him “distress tolerance, emotion regulation, behavioural and impulse inhibition, and self-management skills” and reference again was made to his resort to “substance abuse” arising from his “poor coping skills” at [71(4)]. Dr Kwok also made the further finding that due to Mr Rangiuia’s “poor coping, and the inability to access support from Mr Rangiuia’s partner in New Zealand, he will have a higher risk of relapsing to substance use in New Zealand”. Further recommendations were made that Mr Rangiuia attend “individual AOD counselling and psychological therapy sessions to address his maladaptive methods of coping.”

55    The Tribunal drew a favourable inference at AAT[49] that “I agree that his behaviour has improved and I take into account the absence of further domestic violence from after December 2020.” Further, at AAT[50], reference was made to Mr Rangiuia’s understanding “that his alcohol and drug abuse contributed significantly to his violence towards his partner and he has taken steps to address those issues.” The Tribunal also found, at AAT[50], that Mr Rangiuia had “attended counselling and engaged in an online domestic violence awareness course for eight contact hours for which he received a certificate on 9 August 2024” as well as other recovery courses.

56    However, it is evident that the Tribunal, ultimately held the view, that based on his recent conduct, he exhibited very poor coping mechanisms (and was at risk of returning to drugs and alcohol) as a coping mechanism when in stressful circumstances. This finding coheres with Dr Kwok’s evidence.

57    For these reasons, Mr Rangiuia has not established that the Tribunal failed to identify and understand the manifest relevance of the evidence before it and facts it found when considering the likelihood of Mr Rangiuia engaging in further criminal or other serious conduct.

58    For the same reasons I would reject the third basis of attack. By this contention, Mr Rangiuia contended that the Tribunal erred in finding, at AAT[37], that if Mr Rangiuia continued to take illegal drugs once released from detention, then it was likely that his life of crime and family violence would continue where there was no evidence to support a causal connection between his past illegal substance use and criminal offending (particularly family violence). First, Mr Rangiuia identified no evidence or submission as to this being his case before the Tribunal. Secondly, indeed when one looks at Mr Rangiuia’s evidence below and the SOFIC, it appeared that this was the tenor of his case, reliance was placed on the rehabilitative courses as to why he was not at risk of future offending. For example, Mr Rangiuia’s SOFIC before the Tribunal sought to persuade the Tribunal as to his risk to the Australian community by reference to his engagement with rehabilitation programs: “… the Applicant has engaged in multiple rehabilitation programs addressing substance abuse and has actively participated in domestic violence intervention courses. These steps are indicative of his commitment to personal development and rectifying past misconduct…”: at [34] (see also at [36]–[39]). Notably substance abuse and domestic violence are dealt with at the same time. Thirdly, the tenor of the SOFIC and the fact that Dr Kwok not only assumes but relies on the fact of the causal connection between the two (which Mr Rangiuia inconsistently tries to use in his favour) flies in the face of this submission.

The Tribunal did not misunderstand the evidence of Dr Kwok when making its finding with respect to para 8.2 of the Direction

59    Mr Rangiuia makes the same challenge with respect to the Tribunal’s finding, at AAT[52], that he was a moderate risk of engaging in further domestic violence by misunderstanding the evidence of Dr Kwok. For the reasons given above, I reject this submission.

The Tribunal did err in considering the best interests of the children (para 8.4 of the Direction)

60    Mr Rangiuia submitted that the Tribunal erred in the Tribunal’s assessment of the primary consideration of the best interests of minor children by failing to consider and assess the extensive evidence regarding the interests of his three minor children in the manner it was required to do by para 8.4 of the Direction. In particular, it was submitted that the Tribunal failed to consider the best interests of each child when assessing three of the stipulated categories under the Direction, para 8.4(4)(a), (b) and (d).

61    For the reasons which follow, this aspect of ground (a) is made out.

62    Section 499(2A) of the Act requires that the Tribunal must comply with a direction made under s 499(1) of the Act. The Tribunal is required to take into account primary considerations (including the best interests of minor children) when making its decision. A failure to comply with the express requirements of the Direction may amount to jurisdictional error: FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 19 at [6] per 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] per Katzmann, Jackson and McEvoy JJ.

63    The Direction stipulated, at para 8.4(3), that “[i]f there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ” (Emphasis added).

64    Paragraph 8.4 of the Direction stipulated that a number of factors are relevant in deciding the best interests of minor children:

8.4. Best interests of minor children in Australia affected by the decision

(4)     In considering the best interests of the child, the following factors must be considered where relevant:

a)     the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);

b)     the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;

c)     the impact of the non-citizen's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;

d)     the likely effect that any separation from the non-citizen would have on the child, taking into account the child's or non-citizen's ability to maintain contact in other ways;

e)     whether there are other persons who already fulfil a parental role in relation to the child;

f)     any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);

g)     evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;

h)     evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct

65    Mr Rangiuia relied upon extensive evidence before the Tribunal concerning the health conditions, specific needs and individual interests of each of the children.

66    Mr Rangiuia has three children: aged 9 (Harmony), 7 (Harper) and 3 (Helayna). The evidence included Harmony’s school “Guidance” report which described in detail Harmony’s homelife, disabilities, early childhood development, including developmental delays, schooling history, previous psychological assessments, in-class behaviour and learning, adjustments in teaching and learning, and classroom environment. In addition, there was a report from a clinical psychologist concerning Harmony’s global delays. Harper’s school “Guidance” report and a letter from a paediatrician regarding her diagnoses was also before the Tribunal. Mr Rangiuia’s partner set out in detail the specific complex challenges that arise in caring for each of the three children.

67    Mr Rangiuia had submitted the following to the Tribunal in his SOFIC at [82]–[83]:

82    The Applicant has demonstrated through his evidence that he maintains a close relationship with all of his children, whom he saw almost weekly. Since his detention in December 2023, the Applicant's children and partner have made consistent visits every Thursday, to the Brisbane Immigration Detention Centre.

83     The Applicant confirms that although his two children are non-verbal, they can communicate with him effectively. During these visits, it is customary for all the children to be accompanied by their mother. It is unequivocal that such interaction is solely through in-person contact, considering the young age of the children and the nature of his two daughters’ disabilities.

68    The evidence before the Tribunal revealed the extent of the very different, demanding and complex needs of each child. Harmony has been diagnosed with Autism, ADHD, Dyslexia and anxiety. Harper has also been diagnosed with the same conditions save for dyslexia. Both Harmony and Harper, despite being 9 and 7 years of age, are largely non-verbal (requiring iPads to communicate) and require high levels of care. The evidence revealed that they only trust certain people, including Mr Rangiuia and his partner.

69    There was evidence of Mr Rangiuia’s youngest daughter, Helayna, suffering from certain medical conditions. Mr Rangiuia’s list identifies Helayna as suffering from asthma, prone to seizures, and rheumatic fevers. Mr Rangiuia’s partner’s statement of 31 March 2022 identifies all three of her children as “very high-needs” and where “Helayna-Grace is in my care full-time”, and is frequently in hospital owing to a “highly sensitive immune system”. A photograph of Mr Rangiuia with Helayna in hospital was relied upon by the delegate in his 12 September 2023 decision as supportive of the existence of the hospital visits and her compromised immune-system. This was also accepted by the Tribunal: AAT[62].

70    Furthermore, specific evidence was tendered from Mr Rangiuia as to his relationship with each of his children and his perception of the effect of his detention (and potential deportation) on the children. With respect to Harmony, he stated:

I am the father of Harmony-rose. She is my oldest daughter. We have a close and loving relationship. At the age of 18 months old she was diagnosed with Autism, ADHD, Dyslexia and anxiety. Harmony does not allow anybody close to her. Over the years I was able to build trust with Harmony. A father and daughter bond that required consistency. Understanding Harmony when it came to meltdowns, anxiety and unregulated behaviours. With my absence from Harmony this has impacted her life tremendously with confusion and frustration especially with being non verbal and finding this very hard to communicate in her way that it has lead to self harm. I.e.: pinching herself, cutting her hair, scratching behind her ears etc. Since I've been detained it has a huge impact on her mental health no longer having her father there to teach and provide for her.

71    With respect to Harper, he stated:

I am the father of Harper-reign. Just like her sisters we enjoy a close and loving relationship. She is my 2nd youngest daughter. Harper and I have a bond completely different to mine Harmony and Helayna’s relationship Harper has an interest to video games, as I do as well. I enjoyed watching her improvement with the consistent time I have spent with her. Harper also found joy in going for regular rides in my work truck the experience in her face felt like it was the first time over and over again.

Unfortunately Harper has taken my absence so difficult that this has impacted her behaviours at home, school and the community. Importantly Harper has attempted to leave school grounds numerous times, pushing and shoving her teachers. This behaviour has become more frequent since my detainment. For a child whom is also non verbal diagnosed with Autism level 3, ADHD, dyslexia and unregulated behaviours.

This is a sign that her normal world has been disturbed. No longer having her father at home to teach provide and to be that male role model her life I believe is causing this.

72    With respect to Helayna, he stated:

I am the father of Helayna . She is my youngest daughter. We have a bond that over fills both our cups. Every time I see Helayna, she lights up my entire world, From being present to every milestone till the age of 2 years and 4 months old has been an incredible experience. From her first steps to her first words to her first time calling me daddy. Since visiting me at the centre Helayna knows the names of every airline and much more.

Since being detained the impact saddens us both, I am missing out on her growth. She’s missing out on her daddy. Helayna is suffering immense trauma behavioural outburst and amenable crying to the point of exhaustion. The pain of seeing my little girl in this state has every bone in my body ache.

Helayna also has medical conditions. Every time Helayna catches any type of sickness she requires medical treatment. Helayna is asthmatic, prone to seizures and rheumatic fevers. Still receiving ongoing treatment.

73    Mr Rangiuia also relied upon the statement of Ms Lauran Keen, undated, whose young child attended the same daycare and childcare as Harmony. Ms Keen made observations as to the effect of Mr Rangiuia’s absence (since being detained) on the children to the following effect:

Since Jarrod has been detained, I have witnessed the impact of Jarrod’s absence has had on the children. Their two autistic children have been having more behavioural issues, melt downs and tantrums. Their youngest child has become more attention seeking and even more clingy towards Terina, which makes things even more difficult for Terina as she tries do this all on her own.

74    Mr Rangiuia submitted, that despite this evidence, and the requirements of the Direction, particular attention was not given to the requirements of the Direction, in particular para 8.4(3) (consideration to be given to the best interests of each of the children), 8.4(4)(a) (the nature and duration of the relationship), 8.4(4)(b) (the extent to which the non-citizen is likely to play a positive parental role in the future), 8.4(4)(d) (the likely effect that any separation from the non-citizen will have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways).

75    The Tribunal accepted that the evidence established that the two older children, Harmony and Harper, “suffer from severe autism and are non-verbal” (no reference was made to their other disabilities) and that Helayna also has health issues (without specification): AAT[7]. Reference was thereafter made to the disabilities of Mr Rangiuia’s children being a stressor for Mr Rangiuia if he is released from detention and to the strain on Mr Rangiuia’s partner in caring for the children in the context of considering the likelihood of further offending: AAT[40].

76    The Tribunal then considered the evidence concerning the children in the context of two primary considerations: paras 8.3 (strength, nature and duration of ties to Australia), at AAT[54]–[60] and 8.4 (best interests of minor children) at AAT[61]–[67]. This aspect of the decision is impugned on the basis of failures associated with the consideration of the second primary consideration (best interests of minor children). However, there was no dispute, and there could not be, that account could be taken of the Tribunal’s reasons with respect to the first consideration (strength, nature and duration of ties to Australia). The reasons must be read as a whole. It can be presumed that decision-makers ordinarily review the whole of the evidence and consider all of the issues before they write, such that this must be taken into account when reading the reasons and therefore passages of the decision sought to be impugned should not be read in isolation: New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231; 100 NSWLR 578 at [77] per Bell P.

77    At AAT[61] of the Tribunal’s decision, the Tribunal set out the mandatory relevant factors as part of considering the best interests of the child, contained at para 8.4(4). Then, at AAT[62], the Tribunal referred to circumstances of the three children:

62    The applicant has three children aged 3, 8 and 9 years old. As previously stated, all three children have very significant health issues. The two older children are autistic and require constant assistance and supervision from trusted persons. They attend a special needs school but their mother struggles to look after them. The youngest child has a highly sensitive immune system and has spent significant time in hospital. She is doing her best but one cannot overstate how difficult it is for her looking after these children.

78    It may be accepted that the Tribunal’s reference to “as previously stated”, is a reference to AAT[55] where the Tribunal undertakes the step of considering Mr Rangiuia’s strength, nature and duration of ties to Australia. At [55]:

55    The applicant has lived in Australia for all his adult life since he was 17 years old having arrived in 2011. He has been in a relationship with his current partner and mother of his children since 2012. They have three children aged 3, 8 and 9 years old. The applicant’s partner gave evidence that she was born in New Zealand and came to Australia when 15 years old. Despite living apart due to the domestic violence protection order, she says that they have been in a committed relationship since completing school which is a period of about 12 years. Their two older children have severe autism and are non-verbal. They go to a special needs school and will require ongoing attention and treatment for the rest of their lives. The applicant’s partner gave detailed oral evidence about her daily routine which involves total dedication to each of her three children. Whilst she gets some assistance from her own mother, there is no doubt that if the applicant were released from detention he would provide much needed assistance so as to reduce the burden that she currently bears. The assistance that the applicant could provide to his partner includes financial, practical and emotional assistance. She will be devastated if the applicant is removed from Australia and it would have a most significant impact on her and her family.

79    The Tribunal, thereafter, in considering the best interests of his three children (putting aside other children known to him that were the subject of his evidence) found at AAT[63]–[65]:

63.     The applicant has provided support for the three children and I have no doubt that he has a very loving relationship with them. However, it is relevant that he has been subject to a domestic violence protection order which had an impact on the contact that he could have with his children from April 2018 to April 2023. Despite this order, the applicant’s partner says that he has always provided support and love to his children and she believes that he will play a positive parental role in the future if he is released. In an email dated 6 April 2022, the applicant’s partner said that he accompanies his children everyday after work when he picks them up for a scooter ride. The children appreciate the consistency of him being there. He also helps out with the other children if his partner has to attend hospital for any one of them.

64.     The applicant and his partner plan to marry and I accept that he would play a positive parental role with the children if released. However, there remains a very real risk of further domestic violence which would obviously have a negative impact on the children. It is also relevant that his two older children were present during at least one of the episodes of domestic violence.

65.     I consider that it would be in the best interests of his three children for the cancellation decision to be set aside so that the applicant can return to be with his children. I consider this to be a most significant factor in favour of not cancelling the applicant’s visa.

80    As expressly stated, in para 8.4(3) of the Direction, the Tribunal was required to give “individual consideration” to the best interests of each child. That consideration required that each of the matters identified in para 8.4(4), but particularly in this case at para 8.4(4)(a), (b) and (d), be considered in respect of each child.

81    It is evident from the foregoing summary of the evidence, that the nature and duration of the relationship with each child was different, there was different evidence to be assessed (as between each child) as to the extent to which Mr Rangiuia was likely to play a positive parental role in the future and there was different evidence as to the likely effect any separation would have on each child.

82    There were unusual, different, and compounding difficulties as between each child by virtue of their disabilities and their different relationship with their father. The two eldest children have substantial communicative difficulties which compounds their (in)ability to deal and cope with Mr Rangiuia’s absence. As to the youngest daughter, she suffers from seizures and issues with her immune system, and the impact on her by the absence of Mr Rangiuia is also significant.

83    I do not accept the Minister’s submissions that the particular circumstances of each child (including the impact of cancellation) were not overlooked by a combination of AAT[55], [56], [63].

84    A fair reading of AAT[55] and [56] is that the relevant impact being assessed is on Mr Rangiuia’s partner and her mother, not that of the children. This is because each of those paragraphs are directed to the impact upon each of the mother and partner respectively and there is no reference to any of the relevant separate evidence as to the impact upon each child.

85    The reasoning does not reveal any particular consideration of the separate interests of each child. There is a one line reference to their different ages and a reference to certain (but not all) of their different health conditions at AAT[55].

86    There is no reference to the underlying evidence or evaluation of the “nature and duration of the relationship” (para 8.4(4)(a)) noting their different ages, different disabilities, and the different relations they had with their father. Further, there were different factors at play as to the likelihood of Mr Rangiuia’s ability to play a positive parental role, given the different lengths of time until each child turned 18. It cannot be inferred from the reasoning that these different factors were considered.

87    There is no direct reference at all to the “impact” on each of them of the effect of cancellation. There is no reference at all to any of the evidence relied upon by Mr Rangiuia, as to the particular different impacts that have been already observed by him as a consequence of his detention nor of Ms Keen.

88    It cannot be inferred by what is contained at AAT[63], that specific consideration has been given to the very real impacts that have already been experienced by the children (as indicated in Mr Rangiuia’s evidence) or what that foretells about future impacts of removal. It cannot be inferred from the evidence of the children’s apparent “appreciation of consistency” and the recognition of a “loving relationship” between them and Mr Rangiuia that the Tribunal had given consideration to the specific evidence of impact which had already had very real effects on these children differently because of their different disabilities and frailties.

89    It cannot be inferred from the absence of specific attention being given to these matters that the Tribunal was not persuaded that each factor was not significant and it was not considered material: cf Yusuf at [69].

90    I draw the inference that the Tribunal failed to identify material that was manifestly relevant, namely that the Tribunal failed to consider the specific evidence attributable to each child (as relevant to primary consideration 8.4(4)(a), (b) and (d)) and by this, together (or alternatively) with failing to assess each child’s interests individually (as required by 8.4(3)), failed to conduct the review as required by the Act and therefore the decision was vitiated by jurisdictional error: Uelese v Minister for Immigration and Border Protection [2015] HCA 15; 256 CLR 203 at [61]–[68] per French CJ, Kiefel, Bell and Keane JJ.

91    As a consequence, the Tribunal failed to perform the review task required of it under s 500(1)(b) in the exercise of its discretion under s 501(2).

92    The Minister made no submission disputing that if an error was found that it would not be material. It is clear that the Tribunal failed to appreciate the true claims made with respect to each of Mr Rangiuia’s children. In the circumstances, there is a realistic possibility that the Tribunal’s decision could have been different: Nathanson v Minister for Home Affairs [2022] HCA 26; 276 CLR 80 at [32], [46], [63]; LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; 280 CLR 321 at [7] per Kiefel CJ, Keane and Gleeson JJ.

93    Thereafter, the Tribunal does not disclose what weight is given to this factor. The Tribunal states he considers the best interests of the three children as “a most significant factor in favour of not cancelling the applicant’s visa”: at AAT[65].

94    The Tribunal in its conclusion then identifies at AAT[84] that the “best interests of children weigh in favour of the applicant.” Then, at AAT[86]:

Whilst I have found that it would be in the best interests of the applicant’s children and his partner for him to be released, it must be noted that he has been absent from the family for periods and that some of his past conduct has being extremely disruptive towards the family and must have had a very negative impact on the children who have special needs.

95    Mr Rangiuia submitted that, despite accepting the significance of the impact on the children, significant weight is inexplicably not given to this factor, in the conclusion as manifest in the Tribunal’s reasons recorded at AAT[83]–[88]. It was submitted that at AAT[84] there is merely a bare reference to the “best interests of children weigh in favour of the applicant”. Mr Rangiuia also submitted that the subsequent finding at AAT[86] is effectively the Tribunal taking into account for a second time (double-counting) Mr Rangiuia’s past conduct to count against him, having already taken it into account at AAT[64].

96    I can discern no error in the Tribunal’s approach in this respect. The Tribunal is, at AAT[84], in summary form by reference to the four primary considerations and other considerations, identifying which considerations fall in favour of and against cancellation. The determination of what weight ought be given to a particular consideration, absent statutory guidance is a matter for the Tribunal: Plaintiff M1 at [24]. The Direction constitutes a guide and does not compel the Tribunal to reach a particular outcome nor compel specific weight be given to a particular matter: Singh v Minister of Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 46; 296 FCR 582 at [23] per Mortimer J.

97    It was also submitted that the conclusions, at AAT[84]–[86], gave rise to impermissible double-counting as they must from the earlier findings. I do not accept this, and I do not accept this gives rise to impermissible double-counting. The Tribunal does not do what is alleged. Rather, the Tribunal summarises findings already made rather than reconsider and double-count them.

The Tribunal did not err in its consideration of the impediments faced by the non-citizen if removed (para 9.2 of the Direction)

98    In one short sub-paragraph of Mr Rangiuia’s submissions, and without making any oral submissions upon review, Mr Rangiuia submitted that the Tribunal failed to take into account or give proper consideration to the evidence of Dr Kwok about the potential impacts on Mr Rangiuia’s mental health and wellbeing should he be returned to New Zealand and separated from his minor children. Reference was made to paragraph [76] of Dr Kwok’s report, which reads as follows:

The greatest difficulty for Mr Rangiuia, if he is not permitted to remain in Australia, is his separation from his three children in Australia. He explained that his two oldest children are on the autism spectrum and they need to stay in Australia to continue their therapy. As such, being separated from his children will be inevitable if he cannot stay in Australia. Mr Rangiuia will likely experience intense sadness, and feelings of guilt and shame, because he recognises that his behaviours had disrupted his children’s lives and that his children are suffering the consequences of his actions. In turn, Mr Rangiuia’s symptoms of depression will likely increase in New Zealand. Due to his poor coping, and the inability to access support from [Mr Rangiuia’s partner] in New Zealand, he will have a higher risk of relapsing to substance use in New Zealand.

99    Paragraph 9.2 of the Direction requires:

9.2. Extent of impediments if removed

(1)    Decision-makers must consider the extent of any impediments that the noncitizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:

a)     the non-citizen's age and health;

b)     whether there are substantial language or cultural barriers; and

c)    any social, medical and/or economic support available to them in that country.

100    The Tribunal specifically referred and considered the extent of the impediments to Mr Rangiuia if he were removed: AAT[78]–[81]. The Tribunal acknowledged, as Dr Kwok had identified, the emotional hardship Mr Rangiuia would suffer by reason of the separation from his children at AAT[79], In addition, reference was made to both Mr Rangiuia’s evidence as to his concern that his mental health would deteriorate if deported and to the acceptance, that “he may have mental health issues if he were returned to New Zealand”: at AAT[80]. I accept the submission of the Minister that the particular views expressed by Dr Kwok about the potential impact that removal might have on Mr Rangiuia’s mental health and wellbeing were subsumed in the Tribunal’s findings which were pitched at a higher level of generality: Yusuf at [91] per McHugh, Gummow and Hayne JJ; WAEE at [47] per French, Sackville and Hely JJ. The Tribunal had made reference to Mr Rangiuia’s own evidence and then at AAT[80] to the evidence of Dr Kwok. Whilst reference was made to another aspect of Dr Kwok’s evidence, it can be inferred that consideration was given to para [76] of Dr Kwok’s evidence given the ultimate finding in AAT[80] that Mr Rangiuia may have mental health issues if he were returned to New Zealand.

Ground (c)—The Tribunal did not make irrational or illogical factual findings as to the legal consequences of its decision and the practical impediments Mr Rangiuia would face should he be removed

101    It was unclear at hearing as to whether Mr Rangiuia was pressing this ground. No particulars for this ground were contained in Mr Rangiuia’s application, no written submission elucidated any basis for it save for bare assertion in one sentence and no oral submissions were made at hearing. Accordingly, it is dismissed.

Ground (b)—The Tribunal’s decision was not infected with actual nor apprehended bias

102    Mr Rangiuia submitted that he was not afforded procedural fairness or natural justice by the Tribunal because it acted with actual or apprehended bias in arriving at its decision and a fair-minded lay observer may reasonably apprehend that the decision-maker did not bring an impartial mind to their decision.

103    Mr Rangiuia submitted, whilst acknowledging that such a claim is a strong one to make, on the words expressed in the Tribunal’s decision and the way the decision maker addressed the evidence, it was “evident” that “a fair-minded lay observer would consider” the decision-maker’s mind to have been “closed to persuasion”.

104    To make good this submission, Mr Rangiuia contended that the Tribunal’s view, as articulated at AAT[87], gave a “clear insight in the way that the decision maker” approached the decision, and exhibited his “personal opinion about what should occur in matters of this type”.

105    AAT[87] is extracted as follows:

87.     Put simply, having weighed up all relevant factors, it is my view that a non-citizen cannot expect to remain in Australia if he is violent towards his partner, is a member of an outlaw motorcycle gang and commits frequent drug related crimes over a significant period of time. It will be very sad for his partner and his children and some of his friends, but the applicant has brought this on to himself and now he must bear the consequences of his poor decisions of the past.

106    First, it was submitted that despite there being an absence of evidence either way as to whether the marijuana was an “illicit substance or not”, the Tribunal went straight to the negative and found that the conduct demonstrated that he “still wants to break the law…caused illicit drugs to be taken into the community…and his partner [was] a bad influence”. Secondly, it was submitted that this view infected other material aspects of the Tribunal’s reasons. This was said to be illustrated by the fact that although the Tribunal noted that the best interests of the minor children was a “most significant factor” (at AAT[65]), in performing the evaluative task, ultimately, at AAT[87], their interests were not accorded that weight. Thirdly, as to the Tribunal’s conclusion, (at AAT[87]) the allegation appeared at hearing to morph from apprehended to actual bias.

107    For the following reasons, neither the allegation of actual or apprehended bias is made out.

108    An allegation of actual bias requires the demonstration of prejudgment that the decision-maker is “so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented”: Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; 205 CLR 507 at [71]–[72] per Gleeson CJ and Gummow J. In order to establish an allegation of apprehended bias, the relevant principles were recently stated in the High Court in Charisteas v Charisteas [2021] HCA 29; 273 CLR 289 at [11]–[12]:

Where, as here, a question arises as to the independence or impartiality of a judge, the applicable principles are well established, and they were not in dispute. The apprehension of bias principle is that 'a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide'. The principle gives effect to the requirement that justice should both be done and be seen to be done, reflecting a requirement fundamental to the common law system of adversarial trial - that it is conducted by an independent and impartial tribunal. Its application requires two steps: first, 'it requires the identification of what it is said might lead a judge … to decide a case other than on its legal and factual merits'; and, secondly, there must be articulated a 'logical connection' between that matter and the feared departure from the judge deciding the case on its merits. Once those two steps are taken, the reasonableness of the asserted apprehension of bias can then ultimately be assessed.

109    In QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15; 97 ALJR 419 at [38], Kiefel CJ and Gageler J identified the inquiry as involving the following steps:

Application of the criterion was identified in Ebner, and has been reiterated, logically to entail: (1) identification of the factor which it is said might lead a judge to resolve the question other than on its legal and factual merits; (2) articulation of the logical connection between that factor and the apprehended deviation from deciding that question on its merits; and (3) assessment of the reasonableness of that apprehension from the perspective of a fair-minded lay observer.

110    Paragraph 87 must be read in the context of the policy of the Direction and the whole of the reasons. Sub-paragraphs 5.2(1), (3), (4), (8), 8.1.1(1)(a)(iii), 8.5(1) and 8.5(2) make clear that visa holders should expect that a condition of their visa status is that they are law abiding and that they should expect that if they engage in criminal activity, including family violence that their visas will be cancelled and or not allowed to enter or remain in Australia.

111    Furthermore, Mr Rangiuia appears to be impermissibly inverting the proper order of the inquiry (as it relates to an allegation of apprehended bias). An allegation of apprehended bias does not direct attention to, nor permit consideration of, whether the judge had in fact prejudged an issue. As observed by the plurality in Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; 244 CLR 427 at [67] per Gummow ACJ, Hayne, Crennan and Bell JJ:

… To ask whether the reasons for judgment delivered after trial of the action somehow confirm, enhance or diminish the existence of a reasonable apprehension of bias runs at least a serious risk of inverting the proper order of inquiry (by first assuming the existence of a reasonable apprehension). Inquiring whether there has been “the crystallisation of that apprehension in a demonstration of actual prejudgment” (46) impermissibly confuses the different inquiries that the two different allegations (actual bias and apprehended bias) require to be made. And, no less fundamentally, an inquiry of either kind moves perilously close to the fallacious argument that because one side lost the litigation the judge was biased, or the equally fallacious argument that making some appealable error, whether by not dealing with all of the losing side’s arguments or otherwise, demonstrates prejudgment.

(Emphasis added.)

112    The plurality in Wilson identified at [64] of their reasons, that the respondents’ argument in the Court of Appeal below was that the interlocutory (ex parte) applications dealt with by the primary judge evinced an appearance of prejudgment. The plurality stated in this respect that the only determinative question was might what was done in connection with the ex parte applications “reasonably cause a fair-minded lay observer to apprehend that the judge might not bring an impartial mind to the resolution of a question for decision at the trial?”: at [68]. In rejecting the respondents’ argument on this issue (at [73]), the plurality cautioned that: “In order to establish such a reasonable apprehension it is necessary to analyse more closely the connection that is asserted between the conduct and disposition of interlocutory applications and the possibility of prejudgment”: at [69].

113    An allegation of actual bias was also made on the same basis. I reject the allegation for the reasons already given regarding the necessity of reading AAT[87] in context. The reasons disclose that the Tribunal understood that it was to take into account the various primary and other considerations identified in paras 8 and 9 of the Direction “[i]nformed by the principles in paragraph 5.2” (AAT[14]), and it did so (AAT[18], [52], [63], [68], [84]–[85] and [87]). The Tribunal’s statement that Mr Rangiuia “has brought this on to himself and now he must bear the consequences of his poor decisions of the past” (AAT[87]) needs to be read in the context of that which preceded it: The Tribunal made that remark having acknowledged that it will be “very sad for his partner and his children and some of his friends” if his visa were cancelled and he was not permitted to remain in the community.

114    It is clear, from reading the entirety of the reasons, that the Tribunal formed the view that the adverse consequence of cancellation for Mr Rangiuia’s family was unfortunate but where the consequence resulted from his own conduct. It was open for the Tribunal to express this view.

115    I do not accept, when reading the whole of the reasons, that the conclusion at AAT[87], is indicative of the Tribunal having either prejudged Mr Rangiuia’s case nor acted with such partisanship or hostility as to show that the Tribunal had a mind made up against Mr Rangiuia and was not open to persuasion in his favour.

Ground (d)—whether the Tribunal’s decision is legally unreasonable

116    Again, it was very difficult to decipher what was being contended by this ground. The application contained generalised assertions of the Tribunal failing to give adequate weight to unspecified “relevant factors” and excessive weight to factors of “limited importance” with the assertion of illogicality and irrationality. Mr Rangiuia’s written submissions did not remove the mystery and rather recanted general principles regarding legal unreasonableness and then again without specification, stated:

The Tribunal acted unreasonably by not having significant regard to evidence tending to support the applicant’s case and giving excessive weight to evidence not supportive of the applicant’s case. This is despite the propensity of evidence about the applicant’s rehabilitation, the positive prognosis as to future risk, the applicant’s risk of reoffending trending towards the lower end, his support networks in the community, the needs of his minor children and their health needs, the impact on his partner should he be deported, etc. (This ground in substance, overlaps with Grounds (a) and (b) and I also rely (sic) to the submissions as already detailed)

117    At hearing, Mr Rangiuia contended that the Tribunal’s illogical weighing of relevant evidence which tended in his favour was legally unreasonable. Such unreasonableness was submitted to be disclosed by the Tribunal’s process of reasoning and attribution of weight to: first, the minor children (para 8.4 of the Direction) as overlapping with the ground he developed by ground (a)); and secondly, the strength, nature and duration of his ties to Australia (para 8.3 of the Direction).

118    The concept of legal unreasonableness is concerned with the enforcement of the law governing the limits of the power in question and not the manner of its exercise. Where reasonable minds might differ about the outcome of, or justification for, the exercise of power, or where the outcome falls within the range of legally and factually justifiable outcomes, the exercise will not be legally unreasonable simply because the Court disagrees with the outcome or justification: Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 at [92] per Wigney J. Two possible analytical approaches to the ascertainment of unreasonableness include unreasonableness as to the outcome of the exercise of power, or the reasoning that led to that outcome: Minister for Immigration, Citizenship and Multicultural Affairs v Lieu [2023] FCAFC 57; 297 FCR 162 at [81] per Mortimer CJ. Where reasons are given for the exercise or non-exercise of a power, it is against those reasons that the Court conducts its review as to reasonableness: Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; 231 FCR 437 at [47].

119    As to the first basis, the allegation was to the effect that greater weight should have been placed on the factors favouring Mr Rangiuia and less weight on matters favouring cancellation. I reject this contention.

120    The relevant power, s 501(2) of the Act, involves an evaluative process without stipulation of the weight to be given to the various factors. Whilst an unreasonable exercise of discretion will give rise to jurisdictional error, such an error will not be exposed where reasonable minds may differ as to the weight given to a particular factor.

121    The terms of the Direction do not purport to direct a decision maker as to the outcome of the residual discretion in relation to any given individual, or categories of individuals, as acknowledged by the Full Court in Jagroop v Minister for Immigration and Border Protection [2016] FCAFC 48; 241 FCR 461 at [55]–[57]. In that case consideration was given to the interplay between ss 501 and 499(2A) and considerations of weight. Whilst the relevant Directions in that case were Directions 55 and 65, the reasoning, given the similarity in their relevant content to the Direction is analogous. As the Full Court observed the Direction identifies matters for which weight is to be attributed and, in some cases, as with para [9.2] as to where “less” or “more” weight is to be given. However, ultimately and critically, the weighing process in each case is in substance left to the individual decision maker. The Directions provide no more than guidance as to the exercise of discretionary powers: Singh at [23] per Mortimer CJ. I do not accept, that in this case, the challenge on this first basis can succeed, the challenge is ultimately an impermissible appeal to the merits of the case.

122    Turning to the second basis, the essence of Mr Rangiuia’s submission appeared to be that the Tribunal’s reasons, (at AAT[55], [58]–[60]) disclosed an illogical process of reasoning by a purported disconnect between, on the one hand, the factual findings as to the strength of his close familial ties (which were not specifically accorded weight) and his work related ties (which were accorded “significant weight”) and the ultimate conclusion (at AAT[60]), that the primary consideration weighed in his favour. I do not accept that the process exposes illogical reasoning. It is apparent that the reasoning identifies a number of factors in Mr Rangiuia’s favour. I do not accept that the fact of identifying their “significance” and then not attributing the adjectival descriptor of “significant” to the conclusion at AAT[60] illustrates illogicality. Rather, as is evident from the Tribunal’s reasons, at AAT[84] and [86], the Tribunal, was consistent in its recognition of those matters being in Mr Rangiuia’s favour and, undertook, as it was permitted to, the highly evaluative weighing exercise. This is consistent with the correct approach articulated by the Full Court in CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138 at [28] per Colvin, Stewart and Jackson JJ. In CRNL, their Honours stated that compliance with the Direction is not achieved by focussing upon individual considerations and attributing some form of “weight” to each consideration in isolation. Rather, the “real burden” is to “bring together the considerations as part of a single evaluation of their relative significance thereby weighing them all together”. Such a task cannot be performed by fragmenting the consideration.

Conclusion

123    The Tribunal erred by failing, as required in para 8.4(3) of the Direction, to give “individual consideration” to the best interests of each child where that individual consideration, was to be directed to each of the matters identified in para 8.4(4), in this case at para 8.4(4)(a), (b) and (d), in respect of each child. It failed to take into account or consider the weight to be given to these considerations. That failure was material and a jurisdictional error. Otherwise, Mr Rangiuia has failed to make out his other bases for review. Orders will be made setting aside the Tribunal’s decision and remitting the matter for determination according to law. The Minister should pay Mr Rangiuia’s costs of the proceedings.

Associate:

Dated:    11 August 2025