Ground 2, Strand 2 - "another reason" under s 501CA(4)(b)(ii) of the Migration Act
28 After an introduction and background summary, the Tribunal reasons set out the legislative framework as follows (footnote embedded, bold and italics in original):
[13] Section 501CA(4) of the Act enables the Tribunal on review to revoke the mandatory visa cancellation decision if it is satisfied that:
(a) the Applicant passes the character test as defined in s 501; or
(b) there is another reason why the cancellation should be revoked.
[14] The Applicant's visa was cancelled under s 501(3A) of the Act as the delegate was satisfied that he did not pass the character test. Section 501(6)(a) provides that a person is deemed not to pass the character test if they have a substantial criminal record. Section 501(7)(c) provides that for the purpose of the character test a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more. The Applicant was convicted and sentenced to an aggregate three years imprisonment on 29 August 2018.
[15] The Applicant does not dispute that he does not pass the character test in s 501(3A) of the Act.
[16] Accordingly, the sole issue before the Tribunal was whether, under s 501CA(4)(b)(ii), there is another reason why the mandatory cancellation should be revoked.
[17] The existence or otherwise of another reason should be established on the balance of probabilities. [Re Gordon v Minister for Immigration and Border Protection (Migration) [2018] AATA 39, [57].]
29 This strand turns on [16]-[17] above, taking issue with the reference to the "balance of probabilities", and asserting that the Tribunal had subsequently acted upon this stated test and erroneously applied the curial and adversarial evidentiary standard in order to ascertain whether it had formed the requisite state of a satisfaction as to the existence of "another reason". As will be seen, this is sought to be established by the Tribunal's use of the words "on balance" in two paragraphs of its reasons. I have also considered another paragraph of the Tribunal's reasons in which the phrase "on balance" was used.
30 The answer to the question of whether or not it is permissible for the Tribunal to apply the "balance of probabilities" in relation to fact-finding is not as obvious or as universal as it might first appear. In Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, a seminal case on the "real chance" test in the determination of refugee status, Brennan CJ, Toohey, McHugh and Gummow JJ considered the proper role of a court conducting judicial review. Drawing on the Full Court's reasons below, their Honours considered that where "[a] delegate starts and finishes with the correct test" and "it is only some phraseology in between which provides the basis for a conclusion that [they] had slipped from an assessment of a real chance to an assessment of balance of probabilities" the delegate, and I further infer a decision maker such as the Tribunal, is entitled to a beneficial construction of their reasons. Their Honours later criticised submissions that drew too closely upon analogies in the conduct and determination of civil litigation, observing as follows (at 282-283; footnotes omitted):
Where facts are in dispute in civil litigation conducted under common law procedures, the court has to decide where, on the balance of probabilities, the truth lies as between the evidence the parties to the litigation have thought it in their respective interests to adduce at the trial. Administrative decision-making is of a different nature. A whole range of possible approaches to decision-making in the particular circumstances of the case may be correct in the sense that their adoption by a delegate would not be an error of law. The term "balance of probabilities" played a major part in those submissions, presumably as a result of the Full Court's decision. As with the term "evidence" as used to describe the material before the delegates, it seems to be borrowed from the universe of discourse which has civil litigation as its subject. The present context of administrative decision-making is very different and the use of such terms provides little assistance.
In Fernandez v Government of Singapore, the House of Lords considered the test to be applied to determine if a fugitive offender "might, if returned, be prejudiced at his trial". This raised a similar issue to the assessment of a real chance of persecution. Lord Diplock said:
"I think it only leads to confusion to speak of 'balance of probabilities' in the context of what the court has to decide under … the Act [the Fugitive Offenders Act 1967 (UK)]. It is a convenient and trite phrase to indicate the degree of certitude which the evidence must have induced in the mind of the court as to the existence of facts, so as to entitle the court to treat them as data capable of giving rise to legal consequences. But the phrase is inappropriate when applied not to ascertaining what has already happened but to prophesying what, if it happens at all, can only happen in the future."
We would adopt that reasoning as applicable to the present case. The term "balance of probabilities" is apt to mislead in the context of s 22AA, even if it be used in reference to "what has already happened".
31 The above passage was cited, and the concluding paragraph above quoted by the Full Court (Black CJ, von Doussa and Carr JJ) in Minister for Immigration and Multicultural Affairs v Epeabaka [1999] FCA 1; 84 FCR 411 at [12] (unaffected by a different issue addressed by the High Court in dismissing an application for relief under s 75(v) of the Constitution: [2001] HCA 23; 206 CLR 128). The Full Court in Epeabaka then said:
[13] The impugned sentence from the judgment of the primary judge must be understood in the context of statements that preceded it. The full paragraph in which the sentence appears reads:
"When deciding a case the Tribunal must have regard to what is an appropriate standard of persuasion. In Sodeman v The King (1936) 55 CLR 192 at 216 Dixon J said that the common law only knew of two such standards, that applicable to criminal cases, beyond reasonable doubt, and that applicable to civil cases, the preponderance of probability. However, Dixon J pointed out that 'questions of fact vary greatly in nature and, in some cases, greater care in scrutinising the evidence is proper than in others, and a greater clearness of proof may be properly looked for'. In Liang the High Court observed that the decision-making processes that are applicable to civil litigation, such as notions of burden of proof and the like, are not always applicable to administrative decision-making: see Sodeman at 282. In some contexts, such as when the Tribunal is seeking to determine what might happen in the future or even what has already happened, the use of the term burden of proof might be misleading. But when the Tribunal is required, as a step in the process of arriving at its decision, to determine whether a fact does or does not exist generally the civil standard should be held to apply to its decision-making with due regard being paid to serious issues: compare Re Letts v Secretary to the Department of Social Security (1984) 7 ALD 1 at 4. Unless the Tribunal is required to apply some standard of proof it is not easy to see how the Tribunal should direct itself in determining whether the evidence before it permits it to make a particular finding of fact. On one view the Tribunal could approach the matter solely by reference to 'natural justice and common sense' (see McDonald v Director-General of Social Security (1984) 6 ALD 7 at 9) but this does not give a sufficiently clear guide to the Tribunal in my opinion. It is more likely to arrive at the correct or preferable decision if its obligation is to determine the existence of facts in accordance with the civil standard except in respect of those matters where the nature of what must be decided makes this inappropriate."
[14] The primary judge was not advancing the civil standard as one to be applied without exception in migration cases. Rather, his Honour was advocating the use of the civil standard as a guide likely to produce the correct or preferable decision "except in respect of those matters where the nature of what must be decided makes this inappropriate". This is an important qualification.
32 Similar reasoning is at least implicit in aspects of FTZK v Minister for Immigration and Border Protection [2014] HCA 26; 88 ALJR 754; 310 ALR 1, in which a protection visa applicant had been implicated in serious criminal activity in his home country. In issue was:
(a) the application of Art 1F(b) of the Convention Relating to the Status of Refugees, which excluded the operation of that convention if there were "serious reasons for considering" that the visa applicant had committed a serious non-political crime outside the country of refuge; and
(b) the approach to be taken by an administrative decision-maker in reaching satisfaction that there existed such serious reasons for considering that the commission of such a crime had occurred.
33 The Tribunal in FTZK had stated that it sufficed that there was "strong evidence" but that it did not have to be of such weight as to meet the civil or criminal standard of proof, nor did the decision-maker have to be satisfied that the alleged crime had been committed: see FTZK at [5]. French CJ and Gageler J said at [15] that standards of proof that are applied in judicial proceedings were not substitutes for the ordinary words in Art 1F(b), and that the "risk with the use of domestic standards of proof as analytical tools is that they can evolve into substitutes for the words of the article and may result in the bar being placed too high or too low, according to the circumstances". It may be observed that a risk of erroneous use does not necessarily equate to a blanket prohibition, let alone to jurisdictional error.
34 Hayne J in FTZK gave three reasons why describing the convention test of "serious reasons for considering" as a "standard of proof" was apt to mislead. These included that the decision is to be made in the first instance by an administrative decision-maker outside the adversarial processes of a court in which issue is joined. There is no joinder of issues in administrative decisions: FTZK at [33]-[34].
35 Crennan and Bell JJ in FTZK said (at [79]) that the mere usage of the term "standard of proof" would not have sufficed to establish error, and said (at [97]) that the criminal standard of proof of beyond reasonable doubt was not be "subsumed into 'serious reasons for considering' that an alleged crime has been committed". Their Honours found jurisdictional error in the way in which an aspect of the material before the Tribunal had been addressed.
36 The conclusion to be drawn from Wu Shan Liang and FTZK in the High Court, and Epeabaka in the Full Court, is that the balance of probabilities may sometimes properly inform some aspect of the process of reaching the correct or preferable decision, but that there are dangers in taking that approach as it may lead to error. However, the Tribunal in this case did not merely say that the balance of probabilities was informing the decision-making process, or being used as a fact-finding evaluative guide, but that "the existence or otherwise of another reason should be established on the balance of probabilities". While this statement is an indicator that the balance of probabilities was stated to be a test to be applied, that does not of itself establish legal error, let alone jurisdictional error. The actual application of an inappropriate standard must be demonstrated, as must the materiality of the application of such a standard to the ultimate decision, albeit without a beneficial reading following the discussion of Wu Shan Liang at [30] above.
37 The various approaches in FTZK indicate that asking a wrong, or at least inapt, question will need to be shown to have been carried through to the decision-making process through the reasons given and also to have vitiated the decision reached. The mere use of such a label may or may not be incorrect, or lead to error, depending on the fact or issue to which it is directed and how it has been deployed, including the statutory context. However, more than an erroneous label is needed to demonstrate vitiating error. The relevant question is whether that description in the Tribunal's outline of the legislative framework at [17] has been shown to be operative in the decision that was made, and if so, whether that constituted jurisdictional error.
38 The asserted basis for the balance of probabilities standard being erroneously applied is the use of the phrase "on balance" at [97] and [102] of the Tribunal's reasons, to which may be added for completeness the use of that phrase also at [151]. The full text of those paragraphs, with "on balance" emphasised is as follows, in which the Tribunal is expressing the conclusion reached in relation to the applicant's children "H" and "N", and in relation to his immediate family:
[97] On balance, there is little force to the proposition that H's best interests would be served, by the Applicant remaining in Australia.
…
[102] On balance, the Tribunal is not satisfied that there is a sufficient objective basis to conclude that it is in N's best interests for the Applicant to remain in Australia.
…
[151] The Tribunal accepts that a decision not to revoke the cancellation of the Applicant's visa would have an impact on the Applicant's immediate family. As the oldest sibling in his mother's household, he has provided practical and financial support for his mother in caring for her young children and especially A who has epilepsy. The continuity of this support has been interrupted by periods of imprisonment and he has now been absent from the family for over two years, due to his sentencing on 6 November 2019 and subsequent immigration detention. His contribution to his family as a role model and 'father figure' is diminished by his extensive involvement in criminal activity and the abuse of alcohol and drugs. On balance, the Tribunal accepts that there would be a negative impact on the Applicant's immediate family members if the cancellation of his visa is not revoked, but it does not give this consideration great weight.
39 The applicant submits that reading the Tribunal's reasons as a whole and fairly, it is clear that the reference to the expression "on balance" involved applying the "balance of probabilities" test stated at [17]. He submits that in doing so, the Tribunal made adverse findings against him concerning the best interests of two minor children in Australia at [97] and [102]. For the reasons set out below, I am unable accept this is an inference which can be reasonably drawn for [97] and [102] and also for [151], in the context of the full sentence in which the phrase is used each time, and in the context of the immediately preceding reasons.
40 The ordinary usage of the phrase "on balance" is to indicate that a conclusion has been reached one way or the other, usually after considering the relevant facts and circumstances, rather than that such a conclusion has been reached to any particular standard. It reflects choice between competing conclusions, rather than the application of any onus or standard of proof in making that choice. Ordinary usage of this kind does not entail any beneficial reading being applied.
41 The applicant also relies upon a comment in my decision in Ali v Minister for Home Affairs [2018] FCA 1895 to the effect in context that in that case it was not considered to be in doubt that applying such a curial standard of proof, if proven, was inappropriate: see [33]. At [32] of that decision, I addressed the use of the phrase "on the other hand" used in a paragraph of that Tribunal's reasons, concluding that I was unable to detect in that paragraph in its context, or any other aspect of the reasoning deployed, anything that entailed doing anything more than was permitted, and indeed required, in weighing up the competing factors to reach the ultimate conclusion. There is a difference between this case and Ali, in that the expression "on the other hand" in Ali only occurred once, while the phrase "on balance" was repeated in this case. However, Ali did have an equivalent paragraph to [17] in this case. The question of whether the balance of probabilities should or should not apply in Ali was also less determinative. It is appropriate to carry out the same evaluative exercise as I did in Ali for the two paragraphs of the present Tribunal's reasons relied upon, [97] and [102], and for completeness and context for those paragraphs also [151].
42 In the case of [97], the preceding paragraphs refer in some detail to the nature and extent of the applicant's contact with his 6-year-old child, with whom he was found to have had little meaningful involvement since birth, having not disclosed to the child's mother that he was in custody. The Tribunal's assessment of the best interests of this child contains references to what is likely or unlikely, to objective assessment, and to the presumption that it is usually but not always in the best interests of children to have direct and regular contact with their parents. The Tribunal ultimately concluded that "on balance", at the end of the entire section dedicated to the child H, having all these likely or unlikely predictive factors set out, "there is little force to the proposition that H's best interests would be served, by the Applicant remaining in Australia". Given that this balancing exercise is done at the conclusion of the consideration of all other factors from [90]-[96], I am not satisfied that the use by the Tribunal of the phrase "on balance", is a reference to the application of the test of the balance of probabilities as set out as being the framework for deciding the overarching question of whether there is "another reason" in the reasons at [17]. In the context of the sentence containing the phrase "on balance" and in the context of the preceding reasons, I consider that the Tribunal was recording no more than that a conclusion had been reached after considering the relevant facts and circumstances, without reliance on any particular standard. The phrase as deployed carries its ordinary meaning.
43 In the case of [102], the preceding paragraphs refer in somewhat less detail to the nature and extent of the applicant's contact with his 5-year-old child, because he was taken into custody shortly after that child's birth. By the time he was released the next year, child protection authorities had assumed full custody and the child therefore had no meaningful contact with the applicant since birth. The Tribunal's assessment of this child's best interests is similarly predictive, with the Tribunal ultimately being unable to be satisfied that the applicant remaining in Australia was in the child's best interests, as set out in [102]. The Tribunal concludes "on balance" at the end of the section dedicated to the child N, and the predictive reasoning made across [98]-[101], that it is "not satisfied that there is a sufficient objective basis to conclude that it is in N's best interests for the Applicant to remain in Australia". The Tribunal expressly said that it was difficult to assess the likelihood that the applicant would play a positive parental role in N's future. Given that this balancing exercise is done at the conclusion of the consideration of all other factors from [98]-[101], again I am not satisfied that the use by the Tribunal of the phrase "on balance", is a reference to the application of the test of the balance of probabilities as set out as being the framework for deciding the overarching question of whether there is "another reason" in the reasons at [17]. Again, in the context of the sentence containing the phrase "on balance" and the preceding reasons, I consider that the Tribunal was recording no more than that a conclusion had been reached after considering the relevant facts and circumstances, without reliance on any particular standard. Again, the phrase as deployed carries its ordinary meaning.
44 In the case of [151], the use of the phrase "on balance" occurs in the part of the Tribunal's reasons addressing the applicant's ties to Australia. In the preceding paragraphs the Tribunal concluded in his favour that he had strong and enduring ties which weighed in favour of revocation of the cancellation of his visa, but found that the impact of a decision not to revoke was reduced due to his inability to support his family by reason of his incarceration and drug and alcohol abuse. The use of the phrase "on balance" even more clearly indicates a weighing up of competing considerations, rather than being satisfied to any particular standard, albeit applied to reach a conclusion in the applicant's favour.
45 I therefore conclude that the phrase "on balance" in each of [97], [102] and [151] signifies no more than that a conclusion has been reached on each of the issues being addressed after considering the relevant facts and circumstances, rather than that each intermediate conclusion has been reached to any particular standard. I am fortified in this view because [17] is referring to the ultimate conclusion reached as to "another reason", not to any standard being applied to the consideration of parts of the evidence or other material under consideration. It is inherently unlikely that a statement of a standard of satisfaction as to the ultimate conclusion would then be applied to each item or evidence or other material relevant to that ultimate conclusion.
46 Unaddressed in this strand of submissions by the applicant were [154]-[173] of the Tribunal's reasons. At [154] under the heading "Conclusion", the Tribunal quoted from Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166 at [38], where North ACJ said:
The preferable conclusion is that s 501CA(4)(b)(ii) requires the Minister to examine the factors for and against revoking the cancellation. If satisfied, following an assessment and an evaluation of those factors, that the cancellation should be revoked, the Minister is obliged to act on that view. …
47 The approach to s 501CA(4)(b)(ii) set out in the passage from Gaspar has been adopted by the Full Court in Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66; 250 FCR 548 at [30]-[32] per Collier J, with whom Logan and Murphy JJ agreed, and Viane v Minister for Immigration and Border Protection [2018] FCAFC 116; 263 FCR 531 at [73]-[74] per Colvin J, Reeves J agreeing at [3]; see also Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 125 at [3] per Katzmann J.
48 The Tribunal then proceeded to set out, under the headings "Factors against revocation" and "Factors in favour of revocation", the weight and consideration of points raised in the main body of the reasons. This was an apparent exercise of consideration of the factors almost exactly in the terms of the first sentence of the principle in Gaspar set out above.
49 The applicant also could not direct me to any evidence that within primary considerations 1, 2 and 4, or within any of the other considerations save for the applicant's ties to the community, there had been any suggestion of the application of any particular, let alone inappropriate, standard of proof to the ultimate conclusion. Most of the reasons are set out in terms more similar to the exercise drawn from Gaspar.
50 It follows that strand 2 of ground 2 must also fail.