Akol v Minister for Immigration, Citizenship and Multicultural Affairs

The statutory scheme in respect of visa cancellations 5 Given the narrow grounds of review, it is unnecessary to give detailed consideration to the relevant statutory scheme in relation to visa cancellations and the revocation thereof. 6 Section 501(3A) of the Act provides that the Minister must cancel a person's visa if the Minister is satisfied that the person does not pass the "character test" in certain specified respects and the person is serving a sentence of imprisonment on a full-time basis. The character test is defined in s 501(6) of the Act. There was and is no dispute that Mr Akol failed the character test. He had been sentenced to a term of imprisonment of 12 months or greater: see s 501(6)(a) and (7)(c) of the Act. 7 Section 501CA of the Act provides for the revocation of cancellation decisions made pursuant to s 501(3A) of the Act. Relevantly, the Minister may revoke such a cancellation decision if the person whose visa was cancelled makes representations and the Minister is satisfied either that the person passes the character test or there is "another reason" why the decision should be revoked: s 501CA(4) of the Act. 8 Section 499(1) of the Act provides that the Minister may give written directions to a person or body having functions or powers under the Act in respect of the performance of those functions or the exercise of those powers. A person or body must comply with any such directions: s 499(2A). At the time of the Tribunal's decision in Mr Akol's case, there was such a direction: Direction No 99 - Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA dated 23 January 2023. 9 It is unnecessary at this point to consider the terms of the Direction in any detail. It suffices to note that, among other thing, it provides a detailed list and discussion of the relevant considerations that a decision-maker must take into account in deciding, relevantly, whether to revoke a visa cancellation. The considerations are generally divided between "primary" and "other" considerations. The considerations which are of particular relevance to Mr Akol's grounds of review are: the legal consequences of the decision (cl 9(1)(a) and cl 9.1 of the Direction), which is of some relevance to the first ground of review; the best interests of minor children in Australia (cl 8(4) and cl 8.4 of the Direction), which is a primary consideration and is of particular relevance to Mr Akol's second ground of review; and impact on victims (cl 9(1)(c) and cl 9.3 of the Direction), which is of relevance to the third ground of review.

The Tribunal's decision 10 The administrative and procedural steps which preceded the Tribunal proceedings were referred to earlier and do not need to be repeated. 11 It was common ground before the Tribunal that Mr Akol did not pass the character test and that the only question for determination by the Tribunal was whether there was "another reason" to revoke the cancellation of Mr Akol's visa for the purposes of s 501CA(4) of the Act. 12 Mr Akol was represented by a solicitor in the Tribunal and filed a Statement of Facts, Issues and Contentions (SFIC) which outlined his case before the Tribunal. The contents of Mr Akol's SFIC is of some relevance to the third ground of review. 13 The Tribunal conducted a hearing on 14 November 2023. Mr Akol tendered a number of witness statements and other documents. One of the witness statements was a statement by Mr Akol's sister, Ms Agok Akol. The applicant and Agok gave oral evidence before the Tribunal, albeit by telephone (in the applicant's case) and video link (in the case of Agok). The statement and evidence of Agok is of some relevance to the third ground of review. 14 On 22 November 2023, the Tribunal affirmed the delegate's decision to decline to revoke the cancellation and published its Reasons for Decision (R). It is unnecessary to discuss the Reasons in detail. The parts of the Reasons that are relevant to the grounds of review are discussed in the context of the consideration of those grounds. 15 The Tribunal discussed the relevant background facts at R[13]-[56]. The background facts included the nature and circumstances of the offences committed by Mr Akol which resulted in him failing the character test. It is relevant to note that one of the offences involved the assault of Agok (R[22]-[29]) and another involved the breach of an apprehended domestic violence order which had been made in order to protect Agok: R[31]-[32]. 16 The Tribunal discussed the Direction in general terms at R[59]-[66] and addressed the primary considerations (at R[68]-[140]) and other considerations (at R[141]-[189]) at considerable length. In respect of each of the relevant considerations, the Tribunal assessed the extent to which the consideration weighed for or against revocation of the cancellation of Mr Akol's visa. 17 The Tribunal assessed that: the need to protect the Australian community weighed heavily against revocation (R[68]-[98]); the fact that Mr Akol had been responsible for family violence weighed against revocation (R[99]-[103]); Mr Akol's ties to Australia weighed overall in favour of revocation (R[104]-[108]); the best interests of minor children in Australia weighed "at best only moderately in favour of revocation" (R[109]-[132]); the expectations of the Australian community weighed heavily against revocation (R[133]-[140]); the hardship that Mr Akol would suffer if he were to return to South Sudan given the state of affairs in that country weighed heavily in favour of revocation (R[169]-[174]); the extent of the impediments that Mr Akol would face if removed weighed heavily in favour of revocation (R[175]-[181]); and the impact on victims was not relevant and was therefore neutral (R[182]-[184]). Various other considerations were also considered by the Tribunal to be neutral. 18 In arriving at its decision, the Tribunal considered that it was necessary to "weigh up all of the primary and other considerations": R[190]. Having done so (at R[191]-[202]), the Tribunal concluded (at R[203]) that the fact that Mr Akol represented "an unacceptable risk of harm to the Australian community", and the need to protect the Australian community, outweighed "his interests, the interest of his family, his nieces and nephews, and the "other countervailing considerations", including the many hardships that the Tribunal had identified. The Tribunal accordingly found that there was not "another reason" to revoke the cancellation decision: R[204].

Was the Tribunal's decision irrational or did it proceed on a misconstruction of the Act? 19 Mr Akol's first ground of review focussed on a finding made by the Tribunal in respect of the consideration relating to the legal effects of the decision. 20 The Tribunal considered, under the rubric of the legal consequences of the decision, claims made by Mr Akol that may have given rise to non-refoulment obligations on the part of Australia. The Tribunal decided, in accordance with Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 275 CLR 582 at [36]-[40], that it was unnecessary to determine whether non-refoulment obligations were owed in respect of Mr Akol because he was able to apply for a protection visa: R[161]. Mr Akol does not challenge that finding. 21 The Tribunal did, however, go on to consider Mr Akol's claims that he would suffer harm in South Sudan "outside the concept of non-refoulment and the international obligations framework": R[170]. The Tribunal found, in that context, that South Sudan was in a state of civil and political unrest, that there was a high risk of violence and starvation, that torture and killings were commonplace and that every citizen was facing serious challenges to their health and safety: R[171]. The Tribunal then said (at R[172]-[174]): I am satisfied that regardless of whether the Applicant's claims are such as to engage non-refoulement obligations, he would face great hardship were he to return to South Sudan. I accept that these factors, taken as a whole, constitute another reason why the Applicant's visa revocation should be cancelled. This other consideration weighs heavily in favour of revocation. 22 Mr Akol's argument hinges on the Tribunal's statement (at R[173]) that the state of affairs in South Sudan and fact that Mr Akol would suffer harm if he were to returned there "constitute another reason why [Mr Akol's] visa revocation should be cancelled". 23 Mr Akol emphasised that this finding employed the very expression - "another reason" - which appears in s 501CA(4)(b)(ii). He submitted that the Tribunal's finding that those factors constituted "another reason" to revoke the cancellation of his visa was "logically incompatible" with the Tribunal's ultimate finding (at R[204]) that there was not another reason to revoke the cancellation decision. It followed, in his submission, that the Tribunal's ultimate finding was "illogical and unreasonable in the sense of being so unreasonable that no reasonable Tribunal could have come to the same decision." 24 Mr Akol alternatively submitted that the incompatibility between the Tribunal's two finding might be explained on the basis that the Tribunal construed s 501CA(4)(b)(ii) as conferring a discretion; meaning that, even if the Tribunal was satisfied that there was "another reason" to revoke the cancellation decision, it could nonetheless decline to do so in the exercise of that discretion. Mr Akol pointed to other parts of the Reasons which suggested that the Tribunal considered that its decision was discretionary. Such a construction of s 501CA(4)(b)(ii) would, in Mr Akol's submission, be erroneous because that provision does not confer a discretion, but prescribes a state of satisfaction as a jurisdictional fact. Mr Akol relied on the decision in Au v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 125; (2022) 295 FCR 315 at [30]-[35]. 25 There may be some force in Mr Akol's submissions if the impugned paragraph (R[173]) is read in isolation. It would, however, be wrong to read that paragraph in isolation. It is well established that the reasons of an administrative decision-maker like the Tribunal must be read fairly and as a whole: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272, 291; Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 286-287. 26 Mr Akol's reading and interpretation of paragraph [173] of the Reasons is, in effect, that the Tribunal considered that its finding that he would suffer great harm if he were to be returned to South Sudan was decisive and conclusive as to whether the cancellation decision should be revoked. That reading and interpretation of the paragraph, however, is entirely inconsistent with the Tribunal's reasoning and findings considered as a whole. In the very next paragraph (R[174]), the Tribunal finds that this "other consideration" weighed heavily in favour of revocation. That finding, which is expressed in similar terms to the findings made in respect of the other relevant considerations, is inconsistent with a finding that this "other consideration" was decisive or conclusive of the question whether there was another reason to revoke the cancellation decision. 27 It is also readily apparent from the Tribunal's concluding paragraphs (R[190]-[203]) that the Tribunal did not consider any of the individual relevant circumstances, including the legal consequences of the decision, to be decisive or conclusive. Rather, it weighed up all of the relevant considerations and reiterated its earlier assessment (at R[174]) that the legal consequences of the decision weighed heavily in favour of revocation: R[197]. It noted that, broadly speaking, it was required to strike a balance between "the safety and expectations of the Australian community on the one hand, and the specific consequences to [Mr Akol], his extended family and friends on the other": R[199]. Having engaged in that weighing or balancing exercise, the Tribunal found that the fact that Mr Akol represented an unacceptable risk to the Australian community, and that there was a need to protect the Australian community, outweighed all the other consideration, including the hardship that Mr Akol would suffer were he to return to South Sudan: R[203]. 28 Once the Tribunal's Reasons are read as a whole, it is tolerably clear that the point that the Tribunal was endeavouring to express was poorly or unfortunately expressed. The Tribunal was not intending to say that its finding that Mr Akol would face great hardship were he to return to South Sudan was itself decisive or conclusive of the question whether there was another reason why the cancellation of his visa should be revoked. It was intending to say no more than that its finding in that regard was a relevant consideration and weighed heavily in favour of revocation. It follows that, contrary to Mr Akol's submission, there is no logical incompatibility between that finding and the Tribunal's ultimate finding, after having weighed all the relevant considerations in the balance, that there was not another reason for revoking the cancellation. 29 It equally follows that there is no merit in Mr Akol's submission that the Tribunal misconstrued s 501CA(4)(b)(ii) of the Act. When the Tribunal's decision is read as a whole, it is clear that the Tribunal proceeded on the basis that the power in s 501CA(4) of the Act was only enlivened if it was satisfied that there was another reason why the cancellation decision should be revoked. While the Tribunal made fleeting references to the exercise of a discretion (see R[59] and [204]), unlike in Au v Minister for Immigration, it is clear that the Tribunal addressed and answered the correct question, that question being whether there was another reason to revoke the cancellation. Having found that there was not, the issue as to whether there was a residual discretion did not arise. 30 The first ground of review accordingly fails.

Did the Tribunal fail to complete the exercise of its jurisdiction? 31 Clause 8.4 of the Direction relevantly provided that: Decision-makers must make a determination about whether … non-revocation under section 501CA is, or is not, in the best interests of a child affected by the decision. 32 Mr Akol's second ground of review was, put shortly, that the Tribunal made no such finding. It accordingly failed to comply with the Direction and thereby failed to complete the exercise of its jurisdiction. 33 Mr Akol drew attention to the finding made by the Tribunal at R[124]-[125]: It is probably in the overall best interests of the children, particularly Child 1, that the Applicant remain in Australia. This is of course dependant however, on him not reoffending. As has already been discussed, there is at least a moderate risk of this happening. If he were to reoffend, he would not be a good role model and could be a negative influence on the children. 34 Mr Akol submitted that those observations by the Tribunal did not constitute a finding that non-revocation was, or was not, in the best interests of children affected by the decision because the assessment was conditional or contingent. In other words, the Tribunal's assessment of whether revocation was or was not in the best interest of the children depended on whether or not Mr Akol re-offended. In Mr Akol's submission, that did not amount to an assessment or determination at all. Mr Akol also noted, in that context, that the Tribunal's finding in relation to the risk of Mr Akol reoffending was that he was "at least a moderate risk of reoffending": R[97]. That finding was said to involve a "range", as opposed to a definitive finding concerning reoffending. The result was, so it was submitted, that the Tribunal's finding concerning the best interests of children affected by the decision also involved a range. 35 There are at least two significant problems with Mr Akol's submissions in respect of this ground of review. 36 First, Mr Akol's submissions are premised on the erroneous proposition that the finding made by the Tribunal concerning the best interests of children was required to be categorical, definite or unqualified. As the plurality (French CJ, Kiefel, Bell and Keane JJ) observed in Uelese v Minister for Immigration and Border Protection [2015] HCA 15; (2015) 256 CLR 203 at [67]: There may be cases, hopefully rare, where the evidence presented by the parties does not alert the Tribunal that minor children in Australia may be affected by the decision. There may also be cases where the evidence is such that the only determination which can be made in obedience to cl 9.3(1) of Direction 55 is that cancellation is neutral so far as the best interests of any minor child are concerned. In this regard, it is to be noted that cl 9.3(1) requires a "determination about whether cancellation is, or is not, in the best interests of the child" (emphasis added). Sometimes the best decision "about" whether cancellation is, or is not, in the best interests of the child may be that it is neither. 37 Clause 9.3(1) of Direction 55 was in relevantly the same terms as cl 8.4(1) of the Direction. A determination that revocation would be in the best interests of the relevant children so long as Mr Akol did not reoffend constituted a determination "about" whether revocation would be in the best interests of children affected by the decision. It is irrelevant that the finding involved a degree of equivocation. Mr Akol's submissions to the contrary must be rejected. 38 Second, when the Tribunal's reasons as a whole are fairly read, there could be no doubt that the Tribunal made a determination about whether revocation was or was not in the best interests of children affected by the decision. The Tribunal gave detailed consideration to the best interests of children affected by the decision. It identified Mr Akol's 18 nieces and nephews and referred to Mr Akol's claims concerning his connection with them: R[110]-[123]. The Tribunal expressed "serious reservations" about the veracity of Mr Akol's claims concerning the children and scepticism about the statements which had been provided by the children: R[119]. It concluded as follows concerning the best interests of the children (at R[131]): I accept that provided he [Mr Akol] did not reoffend, it would be in the general interests of the children for him to remain in the community, some more than others. (As I have already noted, the risk of him reoffending is at least moderate). I consider however, having regard to my assessment of his credibility, and his lack of actual knowledge about the circumstances of each child, including forgetting to initially mention many of them at all, that his claims regarding the depth of his connection with his nieces and nephews is both unreliable and exaggerated. I have a similar view of the various statements purportedly made by the children. The extravagant claims made regarding his importance to the children in Brisbane, none of whom he would be likely to see very often, is an example of evidence giving cause for this concern. 39 The Tribunal ultimately assessed that the best interests of the children weighed "at best only moderately in favour of revocation of [Mr Akol's] visa": R[132]. That constituted a determination about whether non-revocation was, or was not, in the best interests of the children affected by the decision. In effect, the Tribunal found that revocation was in the best interests of the children affected by the decision, but tempered the weight that should be given to that consideration given, among other things, the assessed risk that Mr Akol might offend. 40 The second ground of review accordingly fails.

Did the Tribunal fail to have regard to a mandatory consideration? 41 Clause 9.3(1) of the Direction provides: Decision-makers must consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen's criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen … has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness. (Emphasis added) 42 Mr Akol's sister, Agok, was a victim of Mr Akol's criminal behaviour. In the Tribunal, Mr Akol tendered a statement made by Agok. Agok also gave evidence at the Tribunal hearing via video link. While Agok's statement did not directly address the effect that a non-revocation decision in respect of Mr Akol's visa revocation would have on her, it was tolerably clear that she claimed that she had been adversely affected emotionally by Mr Akol's detention. She stated, among other things, that once Mr Akol had "gone", she had been alone and had "no brother and no support person". She also stated that, because she had not seen her brother in years, she had not had a happy life and was miserable. 43 Mr Akol submitted that the Tribunal failed to consider the impact of a non-revocation decision on his sister and therefore failed to comply with cl 9.3(1) of the Direction. 44 That submission cannot be accepted. 45 The Tribunal plainly did not overlook or ignore Agok's statement or her evidence, though it did treat her evidence in respect of the circumstances of Mr Akol's offence with "caution" because she was "obviously trying to support and assist" him: R[12]. The Tribunal also plainly did not overlook the fact that Agok was a "victim" of Mr Akol's "criminal behaviour". It found that her evidence before the Tribunal "regarding her experience as a DV victim, at the hands of the Applicant [Mr Akol]", diverged from the contemporaneous account that she had given to the police in relation to Mr Akol's conduct, and noted, in that context, that Mr Akol's behaviour towards Agok in the past had been serious enough for her to contact the police: R[12]. The Tribunal nevertheless accepted that, "as a former victim, she [Agok] holds no fear of the Applicant [Mr Akol]": R[12]. The point apparently being made by the Tribunal in that regard was that, despite having been a victim of Mr Akol's criminal behaviour in the past, she no longer feared Mr Akol, which perhaps explained why she was supporting and assisting him. 46 The Tribunal also expressly referred to the statements of support from Mr Akol's relatives, including Agok, and the fact that Mr Akol had a close family: R[51]; see also footnote 39, which cites Agok's statement and R[119] and footnote 58, which expressly cites Agok's statement. The Tribunal found as follows in the context of the primary consideration concerning ties to Australia (at R[107]): Letters from family members support a finding that he is close to his family. It is important to note however, that his sister has been his victim, and has been so alarmed by his behaviour on two occasions, that she has called the police for help. Even his connections to his immediate family, are somewhat ambiguous. 47 A footnote to the first sentence of that passage referenced, among other things, Agok's statement. The Tribunal found that Mr Akol's ties to Australia, which included his close relationship with his family, including Agok, weighed in favour of revocation: R[104]-[108]. 48 In its conclusion, the Tribunal also referred to "striking a balance between the safety and expectations of the Australian community on the one hand, and the specific consequences to [Mr Akol], his extended family and friends on the other": R[199]. It found that the fact that Mr Akol represented an unacceptable risk of harm to the Australian community and the need to protect the Australia community outweighed Mr Akol's interests and "the interests of his family": R[203]. 49 When read fairly and as a whole, there could be little doubt that the Tribunal had regard to the negative impact that a non-revocation decision would have on Mr Akol's family, including Agok. 50 Mr Akol contended that, while the Tribunal may have referred to the impact of a non-revocation decision on Agok in her capacity as a member of his family, it did not consider the impact of such a decision on Agok in her capacity as a victim. Mr Akol relied, in that context, on the fact that the Tribunal noted that both Mr Akol and the Minister had submitted that the impact on victims was not relevant and agreed with that submission: R[183]. It should also be noted that Mr Akol's SFIC made no mention of any claim or contention to the effect that the impact on any victim of his offending was a relevant consideration. 51 Mr Akol submitted that it was immaterial that he had effectively disavowed any reliance on the impact on victims as a relevant consideration and cited, in support of that proposition, the observation in Hong v Minister for Immigration and Border Protection (2019) 269 FCR 47 at [66] (Bromwich and Wheelahan JJ) that "a failure by the parties' legal practitioners to raise issues of fact or law that are central to the Tribunal's exercise of jurisdiction may not preclude the consideration on appeal or on judicial review of an error, at least on a central issue, that was induced by the parties' submissions". 52 There are at least two problems with Mr Akol's submission in that regard. 53 First, the Tribunal is not required to refer to matters, and take them into account, repetitiously in different parts of its decision: XXBN v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 74 at [53]. Moreover, as Gleeson CJ observed in Minister for Immigration and Multicultural Affairs, Re; Ex parte Applicant S20/2002 [2003] HCA 30; 198 ALR 59 at [14]: Decision-makers commonly express their reasons sequentially; but that does not mean that they decide each factual issue in isolation from the others. Ordinarily they review the whole of the evidence, and consider all issues of fact, before they write anything. Expression of conclusions in a certain sequence does not indicate a failure to consider the evidence as a whole. 54 There was no doubt that the Tribunal considered Agok to be a victim of Mr Akol's offending. It also proceeded on the basis that a non-revocation decision would have an adverse impact on her. The fact that, in so finding, the Tribunal referred to Agok as a family member rather than a victim was immaterial. 55 Second, contrary to Mr Akol's submission, it is of some significance in that context that Mr Akol expressly submitted that the impact on victims was not a relevant consideration. As Bromwich and Wheelahan JJ noted in Hong (at [65]), "the material before the Tribunal will be shaped by the evidence, submissions, and by the written statements of facts, issues, and contentions" and "[t]hese features of the statutory and procedural framework in which the review in the Tribunal was undertaken are relevant to the identification of the claims that were maintained before the Tribunal". Similarly, as the plurality observed in Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582 at [25], the "requisite level of engagement - the degree of effort needed by the decision-maker - will vary, among other things, according to the length, clarity and degree of relevance of the representations". 56 Having effectively found that a non-revocation decision would have an adverse impact on Agok, as a member of Mr Akol's family, in the context of Mr Akol's ties to Australia and elsewhere in its reasons, it was unnecessary to repeat that finding in the context of a consideration of the impact of the decision on victims. 57 There is perhaps a more fundamental problem with Mr Akol's contention that the Tribunal failed to consider the impact of the non-revocation of his visa cancellation on Agok in her capacity as a victim. The simple fact is that Mr Akol's representations did not include any claim or contention that the impact that the revocation of his visa cancellation would have on Agok in her capacity as a victim of his criminal behaviour was a relevant consideration, or somehow favoured the revocation of the visa cancellation. The only representation made by Mr Akol that was based on Agok's evidence was, in effect, that the non-revocation of the cancellation of his visa would have an adverse impact on Agok because she was his sister and, like the other members of Mr Akol's family, would be emotionally affected if he was required to leave Australia. The Tribunal plainly considered that representation. 58 Mr Akol's third ground of review accordingly fails.

Conclusion and disposition 59 Each of Mr Akol's grounds of review in respect of the Tribunal's decision has failed. The Tribunal did not err as contended by Mr Akol. His review application must accordingly be dismissed with costs. I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Wigney.