Ground 2(a) the appellant's representation that his eldest son would suffer a significant detrimental impact if the appellant's visa was not restored
87 It is apparent that the appellant has, at each stage of the judicial review process, recast and refocussed his representations regarding the impact of cancellation on the appellant's eldest son.
88 The appellant now submits that the Tribunal failed to properly consider the following representation:
there would be a significant detrimental impact on the eldest child by reason of the fact that: (a) the child was already sustaining significant detriment/harm by his father not being physically in his life; (b) the child would suffer significant detriment/harm in the future if he remained physically apart from his father; and (c) if the Appellant was removed there was no possibility of a meaningful relationship ensuing between the child and the Appellant (Representation).
(original emphasis)
89 The representation, as previously contended before the primary judge, was summarised by the primary judge at J [36]:
The applicant identified five matters, each of which he submitted gave rise to jurisdictional error. First, the applicant led extensive evidence showing he and his eldest child had maintained a strong and significant relationship through the exchange of letters while the applicant had been incarcerated. This was said to be an important feature of the applicant's case that the Tribunal did not mention, which strongly invites an inference that it was overlooked. Second, the applicant led extensive evidence (and made extensive submissions) about the significant positive role he would play in the child's life in the future; such evidence which reasonably enabled the Tribunal to make findings about the likelihood of this occurring, which it did not do (or properly do). Third, the applicant made extensive submissions and led extensive supporting evidence connected with the significant impact that the child would sustain if a non-revocation decision was made. Fourth, despite the significant case led by the applicant concerning the child's best interests, the Tribunal failed to disclose any appreciation of what his best interests called for. For example, the Tribunal made no attempt to grapple with the health impacts on the child that would result from non-revocation (despite clear and concerning evidence) and the fact that a non-revocation would almost inevitably result in no meaningful relationship subsisting or the flow on effects of that (for example, health, happiness development and social and educational needs). Fifth, as a result of the misconstruction of sub-paragraph 13.2(4)(f) of Direction 79 the Tribunal did not give proper consideration to the views of the eldest child.
90 As noted above, it is critical that this Court consider not these recent reformulations but the representation as made to the Tribunal.
91 As extracted at [34] of these reasons above, the appellant's written submissions before the Tribunal describe in general terms how the revocation would be in the best interests of the children but do not make any submission in the form as submitted by the appellant on appeal. To the extent that there was a "representation", it comprised: (a) the evidence of the eldest child's mother; and (b) oral closing submissions. The relevant evidence of the eldest child's mother is extracted as follows:
6. [Eldest son] is a super sensitive kid. I've had to take him to the doctors recently for a referral to a psychiatrist because he has been having some problems, including suicidal thoughts which seem to be connected with his desire to have a relationship with his father. I know that [eldest son] wants nothing more than to have a good relationship with his father. I want that too. I think that it will severely damage [eldest son's] mental health if [the appellant] is removed from Australia and not allowed to return because that would mean that [eldest son] could never have the possibility of a close relationship with his father.
7. I am now married and have two younger children. I will never again set foot in New Zealand, even to visit. All I have there are the worst memories of life around the death of my oldest son. I wouldn't be able to take [eldest son] to New Zealand to see [the appellant] if he is permanently excluded from Australia.
…
10. I understand that [the appellant] has committed some crimes in Australia, but I hope for our son's sake that he can be given an opportunity to remain in Australia so that he can improve our son's life. I know that it would be [Child 1's] preference for [the appellant] to be allowed to remain in Australia so that he at the very least has the possibility of a close relationship with [the appellant]. I don't want that possibility taken away from my son.
92 At hearing before the Tribunal, the eldest child's mother gave evidence which included relevantly:
Has [Child 1] spoken to you about wanting a relationship with his father or what has [Child 1] said about wanting [the appellant] involved in his life moving forward?---[Child 1] desperately wants a relationship with his father.
93 And later, under cross-examination:
And so how do you think [Child 1] would be impacted if [the appellant] had returned to New Zealand?---I think he would be greatly impacted. We've actually had him at the doctor's for mental health because it's affecting him that much not having a relationship with his dad and you know, not being able to see him.
He just desperately wants to have a relationship with him. And like I said, if [the appellant] was to go back to New Zealand, I would not be taking [Child 1] back there to see him. Obviously, [Child 1], when he's much older, can make that decision, but that's a long way away.
Okay. And so if I understand that correctly, the reason that you've taken [Child 1] to the doctor's is because of his core mental health resulting from the lack of a relationship with his father, is that right?---Yes. And other things to do with school bullies, but that - him not having a, yes, not being able to have a relationship with his dad has had a huge impact on it.
94 In closing submission, the appellant's representative stated:
Particularly, [Child 1's mother] expressed, and I'm paraphrasing that, her son [Child 1] would be extremely adversely affected if he was deprived of the opportunity to have any personal relationship with his father. And she also cited the difficulties that [Child 1] has been having psychologically through to the present day (indistinct) with his biological father. And in those circumstances, my submission would be that a non-revocation decision would have a significant adverse affect on all three of the applicant's minor children, and specifically, his oldest child, [Child 1], having regard to the evidence of [Child 1's mother] and the problems he's had to date.
My submission is that he would be particularly adversely affected over the next six to seven years before he turns 18. And my submission is that he's already having psychological difficulties prior to reaching his teenage years, and on the proviso that I'm not an expert in these matters, but my assumption, drawing on experience and judicial knowledge, if I can call it that, would be that I wouldn't expect those issues to get any better as [Child 1] progresses through adolescence and into young adulthood. As I say, I don't express that as an expert opinion, just as an observation which I think is open to the tribunal to draw on its own knowledge.
95 It is clear from a fair reading of the Tribunal's reasons overall that it understood and considered each of the elements of the representations, even as now crafted by the appellant.
96 The representation, as reframed on appeal, emphasised the "significant detriment/harm" which would be suffered by Child 1. The appellant contends that the representation was "not properly considered", given the reasoning was "devoid of content" and the Tribunal "failed to make findings" with respect to the current impact on the child of being apart from his father (including the subsistence of mental health issues, including suicidal thoughts); that a non-revocation decision would likely cause "severe" damage to the child; and that the appellant's removal from Australia would mean that the child could "never have the possibility of a close relationship" with the appellant (emphasis in original).
97 There is overlap between the reformulated representation on appeal and the framing before the primary judge.
98 The primary judge, when dealing with the third matter (as identified in the representation extracted at [89] of this decision) regarding the "impact on the child", including his mental health issues (including suicidal thoughts), the severity of any damage on him and the absence of the possibility of him "never hav[ing] the possibility of a close relationship" with the appellant, referred, at J [62] of her Honour's reasons, to the Tribunal's conclusions at [218]-[219] of its decision; together with, at J [63], the Tribunal's conclusions at [222]-[225].
99 The primary judge then, at J [64] of her Honour's reasons, referred specifically to [238] of the Tribunal's decision, and the lack of independent or expert evidence, namely:
(iv) the absence of any independent or expert evidence about the adverse impact upon the Applicant's biological children as a result of the Applicant's current or possible future absence from their lives;
100 The primary judge correctly summarised the submissions and evidence as they were before the Tribunal at J [66] of her Honour's reasons:
As the respondent submitted, the impact on the eldest child was not a matter addressed in the applicant's representations to the Minister. The applicant's statement of facts, issues and contentions in the Tribunal did not contend his removal would have any impact on his eldest child. The only evidence bearing upon this issue was from Ms AG (the eldest child's mother), who gave a statement that she had taken her son to the doctor's recently for a referral to a psychologist because he had been having some problems, including suicidal thoughts which seem to be connected with his desire to have a good relationship with his father, and that his mental health would be "severely damaged" if the applicant were removed from Australia. In cross-examination, Ms AG gave evidence that the doctor's visit for her son's mental health also related to school bullies. The topic was referred to by the applicant's representative in oral closing submissions before the Tribunal. In advancing the submission the applicant's representative put the ongoing impact or impact of possible future absence on the applicant's eldest child's life on the basis that he, (the representative), was not an expert in these matters, but was drawing on assumption, experience, and judicial knowledge.
101 This court is not persuaded that the Tribunal, when its reasons are read as a whole, failed to consider or "grapple with" the "representations" made by the appellant regarding the impact on his eldest son. It is clear that the Tribunal, contrary to the submission of the appellant, recognised the importance of the representations regarding the impact on the appellant's eldest child. The Tribunal did address, as set out earlier in these reasons, and repeatedly referred to the evidence of the reconnection between the appellant and his eldest son (at [199)], the child's desire for a relationship (at [200]), the existence of a relationship (at [201]), the finding that if the appellant were to remain in Australia, the appellant would play a positive role in Child 1's life, again repeating the evidence of Child 1 (at [209], [213]), wishing to resume a relationship with his father (at [209]), the child's desire for a relationship with his father in the context of the likely impact of any separation would have on the child (at [218]), together with consideration of the evidence of Child 1's mother, stating that she would not be in a position to take the child to see his father if he were deported (at [219]) and the means by which communication could continue (at [224]). All of these matters concerned and/or had bearing on the "impact" of any deportation of the appellant on the eldest child.
102 The primary judge found, at J [70] of her Honour's reasons, that she was not satisfied that the Tribunal was not aware of, and did not consider the submission as to the impact on the appellant's eldest son, stating:
In this context, I am not satisfied that it has been established that the Tribunal was not aware of, and did not consider the submission as to the impact on the applicant's son. The Tribunal's reference to the absence of an expert or independent person gives rise to the inference that the Tribunal was cognisant of the lay evidence from Ms AG, but that was the extent of the evidence. This comment was in the context where, as explained above, the applicant's representative put the applicant's submission on the basis he was not an expert, highlighting the absence of such evidence. The absence of such supporting evidence where it might be expected, may affect the weight to be attached to the underlying evidence, which is a matter for the Tribunal. In any event, even if the inference sought by the applicant were to be drawn, in the circumstances, the applicant could not establish materiality (applying the principles referred to below).
103 This Court concurs with the primary judge's reasons. It appears that on each occasion that representations have been made to the Minister, the Tribunal, the primary judge and now this Court, there has been a change in the emphasis placed on certain facts or matters. A consideration, out of context, of the evidence and submissions about the impact on the eldest child could artificially lend to a result which suggests the absence of proper consideration.
104 Relevantly, the height of the appellant's representative's submission before the Tribunal regarding the impact on the eldest child (to the extent that there was a reference to the child's health) was to submit that the eldest child's mother had expressed a view as to the child's mental state and her view about the psychological difficulties he had:
[Child 1's mother] expressed and I'm paraphrasing that, her son [Child 1] would be extremely adversely affected if he was deprived of the opportunity to have any personal relationship with his father. And she also cited the difficulties that [Child 1] has been having psychologically through to the present day (indistinct) with his biological father.
(Emphasis added).
105 And went on, to submit in effect given:
he's already having psychological difficulties prior to reaching his teenage years, and on the proviso that I'm not an expert in these matters, but my assumption, … I wouldn't expect those issues to get any better as [Child 1] progresses through adolescence … As I say, I don't express that as an expert opinion, just as an observation. …
106 It cannot be disputed that there was only limited evidence, in hearsay form, from the eldest child's mother as to the effect on the eldest child's mental health, as extracted in these reasons at [91] to [93] of this decision (acknowledging that the rules of evidence did not apply before the Tribunal). There was no medical evidence. The appellant's representative before the Tribunal explicitly and rightly conceded, as extracted above, that there was no expert evidence. The primary representation, as framed, concerned the potential deprivation of an opportunity for a relationship. The Court accepts the appellant's submission that the weight given to such evidence depends on its nature. In this context, it is not surprising that there was no separate and compartmentalised mention of the child's mother's reference to her perceptions of her child's psychological health. It formed part of the same sentence in her evidence and indeed submission as to her son's desire for a relationship with his father (which was accepted by the Tribunal and repeatedly referred to). It is not possible to draw any inference that the evidence was not considered, given the way the case was run before the Tribunal and the structure of the primary judge's reasoning: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; 236 FCR 593 at [46]-[47].
107 The appellant is not able to deploy the Court's reasoning in Dunasemant v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 13 in this regard. In Dunasemant, the Tribunal completely overlooked the hardship that would have been suffered by the appellant's mother: at [29]. In the present case, the alleged failure involves a particular detail within the claim. The appellant contended that there is no distinction between a representation that has been overlooked or an "integer" (or "critical evidence") of that representation which has been overlooked because in both instances, an important part of the case has not been dealt with. This contention is misguided in the present context.
108 The Tribunal has no obligation to refer to in its reasons to "every piece of evidence" (Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; 252 FCR 352 at [45]) nor "to make a finding of fact with respect to every claim or issue raised": Minister for Home Affairs v Buadromo [2018] FCAFC 151; 267 FCR 320 at [46]. As stated by the High Court in Viane, albeit in relation to a decision made by the Minister in person such that s 499 and thus the direction made under that section did not apply:
14 No part of the statutory power conferred by s 501CA of the Act obliges the Minister to make actual findings of fact as an adjudication of all material claims made by an applicant. Based upon the representations made by an applicant, the cancellation decision and the "relevant information" given to the applicant pursuant to s 501CA(3)(a), the Minister must, when the Minister is not satisfied that an applicant passes the character test, then determine relevantly whether to be satisfied that there is "another reason" why the cancellation decision should be revoked. Deciding whether or not to be satisfied that "another reason" exists might be the product of necessary fact finding, or the product of making predictions about the future, or it might be about assessments or characterisation of an applicant's past offending.
15 If the representations made lack any substance altogether, then this of itself might justify a decision not to be satisfied that "another reason" exists to revoke the cancellation decision, without any need to make any findings of fact about the various claims made. Moreover, some of the topics that might be traversed might not lend themselves to be addressed by way of evidence. They may involve matters of judgment, especially when weighing factors for and against revocation. The breadth of the power conferred by s 501CA of the Act renders it impossible, nor is it desirable, to formulate absolute rules about how the Minister might or might not be satisfied about a reason for revocation.
(Footnotes omitted).
109 There is a significant difference between the absence of "any consideration" and the absence of a particular detail or "integer" of the evidence that otherwise is considered (emphasis added).
110 In the case of the former, where there is a failure to consider at all a representation that is clearly articulated and supported by material that was before the Tribunal, like in Dunasemant, it is correct to say that the failure to consider the representation realistically could have resulted in the Tribunal reaching a different conclusion: see also DQM18 at [113]. But where, in the case of the latter, the Tribunal failed to refer to particular details of evidence, then contrary to the appellant's submission, the conclusion that the Tribunal could have reached a different conclusion does not necessarily follow. Indeed, as noted in Singh v Minister for Home Affairs [2019] FCAFC 3; 267 FCR 200 at [37], the failure to mention "a particular piece of evidence should be analysed by reference to the whole of the material before the Tribunal and its prominence assessed by reference to all of the issues and the way in which the matter was conducted in the Tribunal".
111 Further, the Court shares the view of the primary judge (at J [70]) that the Tribunal's reference to the absence of an expert or independent person (at [238(iv)]) regarding the "adverse impact upon the Applicant's biological children as a result of the Applicant's current or possible future absence from their lives" gives rise to an inference that the Tribunal was cognisant of the lay evidence of the eldest son's mother, and brought its mind to bear upon those facts. This is particularly so given the content of the closing submission made to the Tribunal, as extracted at [104] and [105] of this decision, and the reference made by the Tribunal at [222], to the fact that aside from the submissions of the appellant and the children's respective mothers, "there [was] no evidence of the views of the relevant children expressing or delineating any adverse effect upon them".
112 Here, in any event, it is clear that the Tribunal accepted overall the evidence and submissions made by the mother of the eldest child, which contributed to a finding to assign moderate weight to Primary Consideration B. Accordingly, the Tribunal was not required to refer explicitly to every portion of the evidence as to the mother's views in relation to the impact upon her child.
113 Even if we are wrong regarding this alleged error, such an error has not been demonstrated to be material. The appellant submits it was material on the assumption that there was no proper consideration of the issue, which we do not accept. Further, the submission is premised speculatively on whether greater than "moderate weight" could have been afforded to it. For the reasons expressed above, the Court does not accept that there was such a realistic possibility of this occurring.