Bui v Minister for Immigration, Citizenship and Multicultural Affairs

Failure to take into account a mandatory consideration

1. Where a decision-maker fails to consider a matter which the law - here the Migration Act 1958 (Cth) ('the Act') - requires the decision-maker to address, the decision will generally be set aside: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; 98 ALJR 610 at [30]-[33] per Gageler CJ, Gordon, Edelman, Steward, Gleeson, and Jagot JJ.
2. One matter which the Tribunal was bound to consider arose from its consideration of the relationship between the Applicant and his niece. Where a person's visa is cancelled and they are returned to their country of origin, this can have adverse consequences for any children to whom they are related.
3. The formal power being exercised by the Tribunal was the power to revoke the mandatory cancellation of a visa on character grounds. However, in practical terms the Tribunal was being asked to reinstate the Applicant's visa. This power was conferred on the Tribunal by s 501CA(4) of the Act. The Tribunal was bound by s 499(2A) of the Act in such a case to apply to its deliberations an instrument known as Direction No. 99 - Migration Act 1958 - Direction Under Section 499 - Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA ('Direction 99'). Clause 5.2 of Direction 99 says, relevantly, that '[t]he factors (to the extent relevant to a particular case) that must be considered in making a decision under … section 501CA of the Act are identified in Part 2.' Part 2 contains cl 8.4 titled 'Best interests of minor children in Australia affected by the decision'. Clause 8.4(1) requires 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'. Clause 8.4(4) provides that '[i]n considering the best interests of the child, the following factors must be considered where relevant' and is followed by several subparagraphs. One of these subparagraphs is cl 8.4(4)(d) which provides: d) the likely effect that any separation from the non-citizen would have on the child, taking into account the child or non-citizen's ability to maintain contact in other ways;
4. It will be seen that there are two connected matters to be taken into account: (a) the likely effect of the separation; and (b) the ability of the Applicant and the niece to maintain contact. The first is to be assessed taking into account the second. But both must be considered. It is also to be kept in mind that cl 8.4(4)(d) is part of an overall requirement imposed by cl 8.4(1) that the decision-maker must make a determination about whether the non-revocation of the cancellation of the visa (i.e. the refusal to reinstate it) is in the best interests of any minor children.
5. The immediate question is: did the Tribunal take into account the effect that the Applicant's removal to Vietnam would have on his niece? The answer is that it did. The Tribunal began by referring to the relevant portions of the Applicant's and the niece's statements, and the Applicant's oral evidence, at TJ [64]-[66]. The Tribunal's treatment of this topic is then spread across two parts of its reasons and its ultimate conclusions. The bifurcation is a result of the terms of Direction 99 itself. Cl 8.3(1) requires, relevantly, that the Tribunal consider any impact the decision will have on the non-citizen's immediate family members in Australia (who may, but need not be, children). The Tribunal proceeded on the basis that the niece was such a family member and under its consideration of this issue (which it called 'Primary Consideration 3 - The strength, nature and duration of ties to Australia') it said this at TJ [102]: The Tribunal finds that the Applicant has also had a limited relationship with his niece, AMT, following his incarceration in 2020, and that accordingly she will not be significantly impacted if he is returned to Vietnam. (emphasis added)
6. However, because the niece was also a minor child, the Tribunal returned to her position under the heading 'Primary Consideration 4 - Best interests of minor children in Australia affected by the decision'. The relevant passage is at TJ [110]: Having regard to the factors in paragraph 8.4(4)(a) of the Direction, the evidence before the Tribunal is that prior to his arrest in 2020, the Applicant had a close relationship with AMT, and they were 'inseparable'. However, in the four years since the Applicant was convicted and imprisoned for his criminal offending, he has had limited contact with AMT. The Tribunal has given less weight to the Applicant's relationship with AMT for [the] reason that it is non-parental and there [have] been long periods during which he has been absent from her life and [there was] limited meaningful contact between them.
7. The Tribunal concluded that both Primary Consideration 3 and Primary Consideration 4 weighed marginally in favour of reinstating the Applicant's visa: TJ [107], [113].
8. The Tribunal returned to these two topics in its conclusions at TJ [141]-[142] where it summarised what I have just explained in these terms:
9. Primary consideration 3 weighs marginally in favour of revocation of the Mandatory Visa Cancellation Decision as the Applicant has lived in Australia for short periods of time and he has ties to HMB and AMT who are Australian citizens and reside in Australia, who will likely be emotionally impacted by his removal to Vietnam.
10. Primary consideration 4 weighs marginally in favour of revocation of the Mandatory Cancellation Decision as it is in the best interests of AMT for the Applicant to be permitted to remain in Australia so that he can be physically present in her life and contribute to her upbringing in the years until she reaches adulthood. (emphasis added)
11. It will be observed that there is a degree of tension between the emphasised finding on Primary Consideration 3 at TJ [102] that 'accordingly she will not be significantly impacted if he is returned to Vietnam' and the emphasised summary of that finding at TJ [141] that she would 'likely be emotionally impacted by his removal to Vietnam'. These may be read together as implying that the Tribunal did not think that the emotional impact could be described as significant. Contrary to the Applicant's submission, they do not evidence a failure on the Tribunal's part to give proper consideration to the best interests of the niece.
12. Against the Tribunal's reasoning it might be said that it has failed to consider the impact of the Applicant's removal on his niece under Primary Consideration 4 and instead has considered it under Primary Consideration 3. I do not think that this point, however, goes anywhere. Where a matter is relevant to two or more mandatory relevant considerations, a decision-maker is not usually required to take the matter into account repetitiously: XXBN v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 74 at [53] per Bromberg, Stewart and Goodman JJ; see also Baker v Minister [2012] FCAFC 145 at [44] per Nicholas, Yates and Griffiths JJ.
13. The fact is that the Tribunal turned its mind to what the consequences of the Applicant's removal to Vietnam would be for the niece. It was bound to consider that question both under Primary Consideration 3 (cl 8.3 - strength, nature and duration of ties to Australia) and Primary Consideration 4 (cl 8.4 - best interests of minor children in Australia affected by the decision) because the niece was both a member of his family (engaging cl 8.3(1)) but also because she was a minor child (engaging cl 8.4(4)(d)).
14. To the extent that Primary Considerations 3 and 4 have different focusses of attention, I do not think that the Tribunal's treatment has resulted in any conclusion adverse to the interests of the Applicant. The fact is that the Tribunal accepted under Primary Consideration 4 that it was not in the best interests of the niece for the Applicant to lose his visa (and, therefore, be removed to Vietnam). In reaching that conclusion, it is reasonable to infer, and I do, that the Tribunal must have known that it had also concluded that she would 'likely be emotionally impacted by his removal to Vietnam' for it said as much at TJ [141].
15. I therefore accept that the Tribunal did take into account in reaching its decision the first mandatory relevant consideration imposed upon it by cl 8.4(4)(d). The sequencing is perhaps a little unfortunate (including because, as the above analysis shows, the Tribunal does not include a section neatly addressed to cl 8.4(4)(d)) but I do not think that its reasons should be pulled apart under a microscope in the quest for error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ and 291 per Kirby J.
16. The Applicant did not develop an argument that the Tribunal had failed to take into account the second mandatory matter in cl 8.4(4)(d), that is to say, the ability of the Applicant and the niece to maintain contact in other ways. So far as I can see, the Tribunal did not address this issue. However, since this was not the Applicant's case, it is not necessary to address this further.

Failure to give proper, genuine and realistic consideration to the Applicant's personal circumstances form

1. The Applicant's personal circumstances form contained this statement: My niece [AMT] lacks a fatherly figure in her life as her parents are divorced. I see them on a weekly/fortnightly basis for moral support. I have been around her since her earlier years and formed a secure attachment … She will lack a mentor if I am not able to be in her life physically.
2. The Applicant submits that the Tribunal failed to give this statement proper, genuine or realistic consideration. I accept that the Tribunal did not refer to this statement. However, the written submissions made on the Applicant's behalf to the Tribunal did not refer to it either. In a case where the Applicant was represented I do not see that the Tribunal was bound to consider material which was not the subject of a clearly articulated argument: cf Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; 275 CLR 582 at [27] per Kiefel CJ, Keane, Gordon and Steward JJ (Gageler J agreeing at [43]). Although the Applicant relied upon Jabari v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 98; 298 FCR 431 ('Jabari') per Katzmann, Jackson and McEvoy JJ, that case took as its point of departure that the Applicant had made the relevant representations to the decision-maker and then considered what level of analysis the decision-maker was called upon to apply. In this case, I do not accept that the relevant representation was made so Jabari has no relevance.

Failure to give proper, genuine and realistic consideration to the Applicant's two reports

1. Mr Bui also made a submission that the Tribunal had failed to consider two submissions made to the Tribunal on his behalf. These were:
2. A submission which referred to a UNICEF report entitled 'The formative years: UNICEF's work in measuring early childhood development', which stated: Early childhood, which spans the period up to 8 years of age, is critical for cognitive, social, emotional and physical development … Unsafe conditions, negative interactions and lack of educational opportunities during these early years can lead to irreversible outcomes, which can affect a child's potential for the remainder of his or her life.
3. A submission which referred to and relied upon a report by the Australian Government's Australian Institute of Health and Welfare, titled 'Australia's Welfare 2015', and which referred to the importance of 'family functioning' and time spent by children with their families. The report continued: Families facing adversities in these areas are likely to experience levels of dysfunction that will have health, behavioural and social repercussions for young family members, and poor outcomes for them later in life.
4. The above passages from both of these documents were referred to in the submissions made on behalf of the Applicant to the Tribunal at [32] and [33]. This was in aid of a submission that it was in the best interests of the niece that the Applicant's visa be reinstated. The Tribunal did not deal with the submission insofar as it was based on either document.
5. The reason for this is found in TJ [66] and [111], which provide:
6. In his oral evidence at the hearing, the Applicant told the Tribunal that he has not been in contact with his step-sister and niece for more than four years. He said that HMB learned about his 'antisocial behaviour' through their father, and since then every time he has attempted to contact her she will say 'I'm busy'. He asked her to come to the Tribunal hearing and to give evidence, but she said she was 'busy'. He 'felt hurt' by this as it is his 'only chance' to stay in Australia. The Applicant told the Tribunal that HMB has given him 'an ultimatum' and that he must show her that he has 'changed' if he is to be accepted into her and his niece's life again.' …
7. Relevant to the factors in paragraph 8.4(4)(b), AMT is currently aged 10 years and therefore there are a number of years until she turns 18 during which the Applicant may play a positive role in her life in the future. The extent to which he will be able to do so will depend on whether he can re-establish contact with HMB and thereby have the opportunity to rebuild his previously close relationship with AMT.
8. As recorded in the above paragraphs, the Applicant's evidence to the Tribunal was that he had not been in contact with his step-sister and niece for more than four years. His step-sister had given him an ultimatum that if he was to be accepted back into her and her daughter's lives he had to change his ways. As the Tribunal observed, whether he did so was up to him. The point for present purposes is that having reached that conclusion the statements set out above relating to the perils of family dysfunction had no relevance. On its findings, the Tribunal was not presented with a case where it was potentially dividing a family to the detriment of a child for the Applicant had, on his own evidence, already done so.
9. Mr Jones submitted that the Tribunal should have embarked upon an assessment of the prospect that the Applicant would comply with the step-sister's ultimatum. Assuming for the sake of argument that the submission is a sound one, it would have led the Tribunal either to conclude that the Applicant was going to comply with the ultimatum or not. In the former case, this would have entailed that the step-sister would then have permitted contact to occur so that there would have been, in that circumstance, some relationship which would have been capable of being severed by any decision not to reinstate his visa. In the latter case, it would have meant that there would have been no relationship which could have been severed.
10. The problem with this argument is that the Tribunal was required to assess the situation before it and not some future contingent situation. The question under cl 8.4(4)(d) is not concerned with relationships which may come into existence in the future but rather with those which presently exist. I do not think that it would have been appropriate for the Tribunal to consider whether, in the future, the Applicant might restore his relationship with his niece and therefore whether that future contingent relationship was threatened by the non-reinstatement of his visa. The Tribunal was bound to deal with the here and now.
11. It follows that the Tribunal's conclusion at TJ [111] made it unnecessary to deal with this material.

Failure to give proper, genuine and realistic consideration to the best interests of the niece

1. The difficulty with this submission is that the Tribunal accepted that it was not in the best interests of the niece that the Applicant's visa should not be reinstated. It did so at TJ [142], stating that 'it is in the best interests of AMT for the Applicant to be permitted to remain in Australia'. Mr Jones' answer to this problem was to submit that a mere statement by a decision-maker that they accept that non-cancellation is in the best interests of a child does not necessarily mean that the decision-maker has truly come to grips with just what a serious matter it is to separate a child from their parent. This is certainly true as the Full Court's decision in Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 172; 287 FCR 294 ('Bettencourt') demonstrates. There the Full Court (Burley, Colvin and Jackson JJ) said at [42]: The primary judge reasoned that the Minister's failure to refer to this material indicated implicit acceptance that long term separation was likely to be harmful and "strongly favoured revoking the visa cancellation": at [29]. We are respectfully unable to agree with those findings by the primary judge. The following aspects of the Minister's reasons lead us to conclude that whilst the Minister recognised that there would be harm to the children and that, as a result, cancellation of the visa was in the best interests of the children, it is not possible to take the further step of concluding that the Minister implicitly accepted that long term separation was likely to be harmful and formed the view that the reason strongly favoured revocation. Rather, the conclusion to be reached from a consideration of the reasons is that the Minister failed to form the required state of satisfaction by reference to the information before him as to the seriousness of the harm to the children that was likely if the visa cancellation was not revoked, information which, as we have said, in this appeal the Minister accepted was compelling. The Minister thereby failed to form the required state of satisfaction.
2. It all depends on the facts. In this case, it is quite clear that the Tribunal understood the nature of the relationship between the Applicant and his niece including, relevantly, that her mother would not permit further contact unless he mended his ways. It was also aware that the niece would be emotionally affected by his removal although the extent of this was not significant. Most importantly, it was aware that the Applicant was her step-uncle and had not seen her, on the Applicant's own evidence, for four years. These matters make the case distant from the facts of Bettencourt and other cases the Applicant relied upon such as Webb v Minister for Home Affairs [2020] FCA 831; 170 ALD 511 per Anastassiou J and Wan v Minister for Immigration & Multicultural Affairs [2001] FCA 568; 107 FCR 133 per Branson, North and Stone JJ.
3. I am unpersuaded that the Tribunal failed to give the best interests of the Applicant's niece proper, genuine and realistic consideration. In contrast to the 'fragmentary' consideration of an applicant's submissions and representations discussed in Jabari at [60], on which the Applicant relies, the Applicant's case before the Tribunal on this topic was at the margins and the Tribunal's treatment of it was more than sufficient.

Conclusion

1. The amended originating application will be dismissed with costs, as taxed, assessed or otherwise agreed. I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Perram.