Consideration of the grounds of review
58 Where the Federal Court has jurisdiction in relation to a migration decision under s 476A(1)(b) (that is, the kind of decision in issue in this proceeding), the Court's jurisdiction is the same as the jurisdiction of the High Court under para 75(v) of the Constitution: s 476A(2). The High Court's jurisdiction under para 75(v) of the Constitution (to grant the remedy of mandamus and the ancillary remedy of certiorari) is limited to decisions affected by jurisdictional error: Plaintiff S157 v Commonwealth (2003) 211 CLR 476. Therefore, this Court has jurisdiction to issue writs in respect of the decision under review only if the Tribunal's decision is shown to be infected by jurisdictional error. That means, of course, that the question in this case is not whether the Tribunal reached the correct or preferable decision, but only whether the Tribunal fell into jurisdictional error.
59 In respect of each of the grounds of review which the applicant raises (set out at [27] of these reasons), the position is this.
60 First, as to the Tribunal's consideration of the best interests of the applicant's daughter, the applicant's contention, simply put, is that too little weight was given by the Tribunal to the daughter's interests. It is perfectly clear from the Tribunal's reasons that it did consider the best interests of the applicant's daughter, and did "make a determination about whether cancellation is, or is not, in the best interests of the child", as it was required to do pursuant to cl 9.3(1) of the Direction (see Spruill v Minister for Immigration and Citizenship [2012] FCA 1401; 135 ALD 45 at [18] per Robertson J). As set out at [47] of these reasons, the Tribunal concluded that it was in the best interests of the daughter not to cancel the applicant's visa. However, when the Tribunal turned to consider the weight which it should attribute to that factor, it held that the consideration of the best interests of the daughter weighed "neutrally" on the exercise of discretion. That statement is not contradictory to the conclusion the Tribunal had reached as to the best interests of the daughter. In the Tribunal's reasoning process, the Tribunal first determined the best interests of the daughter. It then considered the weight to attribute to that factor, weighing it against the other relevant primary considerations. An examination of the Tribunal's reasons as a whole demonstrates that the conclusion that the consideration "weighed neutrally" was simply a conclusion (although somewhat awkwardly expressed) that the protection of the Australian community (a competing primary consideration) outweighed the consideration of the best interests of the daughter. That analysis is consistent with the reference the Tribunal made at this point in its reasons to cl 6.3(3) of the Direction, which provides that:
In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
61 The Tribunal was entitled to make the finding it made. The weight which the Tribunal attributed to competing considerations is not a matter which this Court is able to review on an application of the present sort: Rawsthorne v Minister for Immigration and Citizenship [2013] FCAFC 39; 140 ALD 524 at [25] per Cowdroy, Katzmann and Farrell JJ.
62 However, in respect of the weight attributed by the Tribunal to competing considerations, in his submissions on behalf of the applicant, Mr Sloss urged this Court to find that the Tribunal reached a decision no reasonable decision-maker could have reached.
63 In Jones v Office of the Australian Information Commissioner [2014] FCA 285 at [19] to [24], I set out the relevant principles in relation to reasonableness in the exercise of an administrative discretion in these terms:
[19] … every statutory discretion, or discretionary power, is confined by the subject matter, scope and purpose of the legislation under which it is conferred (FAI Insurances Ltd v Winneke (1982) 151 CLR 342 at 368 per Mason J; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355) and every statutory discretion has to be exercised according to "the rules of reason" (R v Anderson; Ex parte Ipec-Air Pty Limited (1965) 113 CLR 177 at 189 per Kitto J; Minister for Immigration and Citizenship v Li ("Li") [(2013) 249 CLR 332] at [23] and [24] per French CJ). The rationality required by "the rules of reason" is an essential element in the lawfulness or legality of administrative decision-making (Li, per French CJ at [26]). The legislature is taken to intend that a discretionary power, statutorily conferred, will be exercised reasonably (Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 36; Kruger v Commonwealth (1997) 190 CLR 1 at 36; Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; 259 ALR 429; 83 ALJR 1123 at [15]; Li, per Hayne, Kiefel and Bell JJ at [63]).
…
[21] Importantly, however, a requirement of legality in decision-making that a decision be reached according to the rules of reason or, put another way for present purposes, reached reasonably, or not unreasonably reached, is not a vehicle for challenging a decision made in contended error of law and beyond power simply because "disagreement" is found with the "evaluative judgment" of the administrative decision-maker. Challenging an administrative decision-maker's reasoning as illogical or unreasonable may simply be an emphatic way of expressing disagreement with the decision or the merits, and such emphatic disagreement may have "no particular legal consequence" (Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [40] per Gleeson CJ and McHugh J).
[22] Properly applied, a standard of legal reasonableness does not involve substituting a Court's view as to how the discretion should be exercised for that of the decision-maker. Accepting then, that there are limits on the Court's supervisory jurisdiction and that a "standard of reasonableness" is not applied as a mechanism for merits review (or a vehicle for the Court substituting its own view of the manner of exercise of the discretion), but rather a feature of legality in decision-making, leaves open the question of how the standard "is to be applied and how it is to be tested" (Li, per Hayne, Kiefel and Bell JJ at [66]).
[23] The legal standard of reasonableness must be the standard indicated by the proper construction of the statute which identifies the express statutory conditions and specific requirements upon which the exercise of the discretion rests in determining whether the statutory power has been abused, as falling short of the statutory standard, as a matter of legality in decision-making (Li, per Hayne, Kiefel and Bell JJ at [67]). The legal standard of unreasonableness should not be considered as "limited to what is in effect an irrational, if not bizarre, decision - which is to say one that is so unreasonable that no reasonable person could have arrived at it" (Li, per Hayne, Kiefel and Bell JJ at [68]).
[24] In some cases, an inference of unreasonableness may be objectively drawn even where a particular error in reasoning cannot be identified and in that sense the supervisory review of the exercise of an administrative discretion is to be approached in an analogous way to the principles governing the review of the exercise of a judicial discretion in terms of the well-known principles identified in House v The King (1936) 55 CLR 499. Unreasonableness will be demonstrated where "no sensible authority acting with due appreciation of its responsibilities" (Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 per Lord Diplock at 1064) would have so decided. Lord Diplock's observation reflects the requirement of the law that a decision-maker "understand his or her statutory powers and obligations" (Li, per Hayne, Kiefel and Bell JJ at [71]).
64 I see no aspect of the Tribunal's reasons which could lead to a conclusion that it did not weigh the competing factors according to the rules of reason, and within the regime for decision-making set out in the Act and the Direction. The applicant's contention that the Tribunal's decision was unreasonable is simply an expression of disagreement with the merits of the decision. That disagreement has no particular legal consequence.
65 Second, as to the Tribunal's consideration of the applicant's family connections in Australia, again it is clear that those connections were considered carefully by the Tribunal, findings of fact were made, and indeed, the Tribunal concluded that the strength, duration and nature of ties to Australia weighed against cancelling the applicant's visa. The applicant's submission is really a submission that too little weight was attributed to this consideration as against the other relevant considerations. For the reasons I have explained in relation to the first ground of review above, the relative weight given by the Tribunal to the competing considerations is not a matter which it is open to this Court to review.
66 Third, as to the Tribunal's consideration of the effect on the applicant's mother of cancellation of the applicant's visa, this was another matter which the Tribunal plainly explored at some length. The findings made by the Tribunal were those described at [50] of these reasons. Those factual findings are not open to review by this Court.
67 In his application to this Court, at ground B, the applicant refers to the Tribunal failing to apply the law when taking into account "an undertaking to nurse and care for" his mother. The applicant says, however, at ground F that he "only truly became aware of the seriousness of [his mother's] condition when she made a visit to Woodford Correctional Centre and told me her story". At ground K, the applicant says that "upon [his mother's] visit to Woodford Correctional facility just a month ago [he] agreed that [he] would assist her as she is having a hard time coping with her illness". What the applicant became aware of "only a month" before filing his application for review (i.e. in May 2013) cannot go to show any jurisdictional error in the decision of the Tribunal made on 23 April 2013.
68 The effect of cancellation of the applicant's visa on the applicant's mother (who is an Australian citizen) is one of the "other considerations" set out in the Direction (cl 10(1)(a)). The Direction provides, however, that primary considerations should generally be given greater weight than the other considerations: cl 8(4). The Tribunal determined that the "other considerations" weighed "neutrally" on the exercise of the discretion. In the same way as I have explained in relation to the best interests of the child consideration, a fair reading of the Tribunal's reasons as a whole demonstrates that what the Tribunal meant by that language was that the weight it attributed to these considerations was outweighed by the primary considerations to which it attributed substantial weight.
69 Fourth, as to the Tribunal's consideration of the extent of the impediments that the applicant would face if removed from Australia to the Philippines in establishing himself and maintaining basic living standards, the Tribunal's findings of fact were those described at [51] of these reasons. Again, it is not open to this Court to review those findings of fact, which were made after a detailed consideration of the evidence.
70 The extent of the impediments that the applicant would face if removed from Australia is, along with the extent of the effect on the applicant's mother, one of the "other considerations" in the Direction. For the reasons I have already explained, the Tribunal was entitled to make the decision it made as to the weight to be attributed to the relevant other considerations. It is not a matter open to judicial review.
71 Fifth is the applicant's contention that words spoken at the Tribunal hearing by the Senior Member to the applicant's mother, Ms Osmond, give rise to an apprehension of bias. The exchange recorded in the transcript at the conclusion of Ms Osmond's oral testimony is this:
SENIOR MEMBER: … All right. Thank you. You can now step down.
MS OSMOND: Thank you so much.
SENIOR MEMBER: Thank you for giving your evidence today.
MS OSMOND: Thank you. Thank you.
SENIOR MEMBER: I take it you are going back to Sydney today, are you?
MS OSMOND: Yes.
SENIOR MEMBER: All right.
MS OSMOND: I don't know if I can. I'm so tired when I come over here. All I wanted is - I'm so weak but I wanted to attend my son's hearing. Thank you.
SENIOR MEMBER: All right. Well, you are certainly free to go. Thank you.
<WITNESS WITHDREW [3.56pm]
SENIOR MEMBER: If you want to say goodbye to your son you can do that. Ms Osmond, we will need to get on with business here so thank you for giving your evidence. Thank you. I'm concerned about the time.
72 The respondent submits that the applicant appears to have interpreted the Senior Member's concluding words as an exhortation to the applicant's mother to say goodbye to the applicant forever, but that a plain reading of the transcript shows that the context for the exchange was that the applicant's mother was returning to Sydney and, given the applicant's incarceration, was unlikely to have another opportunity to say goodbye to the applicant before she left. The respondent says that the Tribunal did no more than extend to the applicant's mother, as a common courtesy, the opportunity to say goodbye there and then. I agree. There is simply no basis for any apprehension of bias arising out of the exchange between the Senior Member and the applicant's mother.
73 In addition to those five grounds of review, Mr Sloss made a further submission on behalf of the applicant at the hearing before this Court, that the Tribunal had improperly taken into account, as violent behaviour of the applicant, behaviour which had not been the subject of criminal charges (in particular, the domestic violence incident in 2009 and the stabbing incident in 2004). That submission has no force. The Tribunal received evidence about each of the incidents, including evidence from the applicant himself who accepted that the incidents had occurred. The Tribunal found, as matters of fact, what the circumstances of each of the incidents had been. It does not matter that the incidents did not later become the subject of criminal charges. As the Tribunal itself noted (at para 78), cl 9.1.1 of the Direction refers to the decision-maker being required to consider the nature and seriousness of the person's "criminal offending or other conduct to date" [emphasis added]. The circumstances of the incidents were matters on which the Tribunal was entitled to make findings, and were certainly relevant to the question whether the discretion to cancel the applicant's visa should be exercised.
74 For the reasons above, none of the grounds of review establishes jurisdictional error on the part of the Tribunal.
75 The application should be dismissed.