Dass v Minister for Immigration, Citizenship and Multicultural Affairs

THE DECISION OF THE TRIBUNAL

1. The background facts relevant to the grounds of appeal may be briefly set out based on the unchallenged findings of the Tribunal.
2. The appellant has an extensive criminal record based on a range of driving offences, drug and property offences and domestic violence offences. His visa has twice been cancelled automatically pursuant to s 501(3A) of the Act, first in 2016 and then in 2019. On both occasions the cancellation arose because he was sentenced to at least 12 months imprisonment as a result of offences that he had committed. On both occasions the visa cancellation was revoked.
3. On 17 February 2023, he was sentenced to 16 months imprisonment relating to offences committed on 19 May 2022. He was notified that his visa was cancelled under s 501(3A) of the Act on the basis that he did not pass the character test and again he sought to have the visa cancellation revoked. On 8 April 2024, a delegate of the Minister decided not to revoke the cancellation. On 16 April 2024, he applied to the Tribunal for review of the delegate's decision.
4. The Tribunal referred to Direction No. 99 - Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction 99), the Ministerial Direction issued by the Minister under s 499 of the Act, and correctly identified the primary and other considerations that it was obliged to take into account. It also identified the evidence that was relied upon by the appellant, and noted that he, his wife, his older daughter, his mother, his brother and a consultant psychologist, had each given additional evidence and, with the exception of his daughter, were cross-examined ([15]). The Tribunal made findings of fact concerning his criminal record, which is not in dispute.
5. The Tribunal found in relation to the appellant's family situation:
6. The applicant is married with two daughters. He also has two brothers who live in Australia and have family here who he is close to. His mother also lives in Australia. He remains in close daily contact with his wife and regularly contacts his children via phone and video calls. His wife and daughters have visited him while he has been in detention.
7. If the applicant is deported to Fiji there is no plan for any member of his family to join him in Fiji. He does not have any family or friends in Fiji.
8. The Tribunal noted that apart from his family, he does not appear to have much in the way of links into the Australian community ([79]), he has not worked for almost ten years, although a witness who is identified only as "Sam" described himself as a long-time friend who is aware of the appellant's offending but is willing to give him work in his auto-repair business if he is released into the community ([80]).
9. The Tribunal then turned to the primary considerations under Direction 99. It considered that it is likely but not certain that the appellant will resume using the drug crystal methamphetamine ("ice") at some point if released into the community and that when that happens, he will engage in further criminal or other serious conduct. It considered that this conduct is likely to involve property crimes and threatening and abusive behaviour towards his wife and children, when he is experiencing the effects arising from his ice addiction ([115]). He considered that the protection of the Australian community "weighs very heavily against revoking the cancellation of the appellant's visa" ([116]).
10. The Tribunal considered the question of family violence and concluded that there is clear evidence that the appellant has engaged in family violence on multiple occasions, identifying each instance ([117]-[125]). It noted that both delegates of the Minister; when revoking his prior visa cancellations, warned against this conduct, observing that it would affect subsequent decisions regarding his visa status. Having regard to the instances of violence and the warnings directed towards the appellant, the Tribunal decided that this consideration weighed "very strongly against the appellant's visa cancellation being revoked".
11. In relation to the strength, nature and duration of ties to the community the Tribunal made the following findings: Strength Nature and Duration of Ties
12. The applicant has been in Australia since 2002. All of his immediate family are present in Australia including his wife and two daughters, his mother and two brothers.
13. Despite having been in Australia for more than two decades his other social links are weak. He has not worked for almost a decade and there is no evidence to suggest that he has been involved in the community in other ways.
14. Despite numerous episodes of family violence, the applicant's wife is very supportive of the applicant remaining in Australia. She has indicated that neither she nor her daughters would accompany him back to Fiji if his visa remains cancelled and that she does not want to lose him as an emotional and financial support. The financial concerns she has if the applicant is removed were aggravated (at least for a period) following surgery she underwent which limited her ability to work and earn enough to meet the family's living expenses. She is very close to the applicant and they speak regularly each day. The applicant's wife believes the applicant when he says that he will not take drugs again and will not offend against her again. The applicant has a very close emotional tie to his wife.
15. The applicant's mother is aged 72 and also lives in Australia. She has said that she needs her eldest son around since her husband passed away and she wants him to remain in Australia.
16. The applicant's two brothers have also provided supportive statements.
17. The applicant also has a friend, identified only as 'Sam' who has indicated that he has a job for the applicant in auto repairs if he is released into the community.
18. The applicant's daughters are also close to him. I will discuss their relationship with their father further when considering the best interests of minor children. However, I have also taken the closeness of the relationship into account when considering the strength of the applicant's ties to Australia. I note that one daughter describes the applicant as 'the glue that holds the family together'. I accept that the applicant's relationship with his daughters is a very close one and that these relationships must be given more weight than the applicant's other ties to Australia.
19. The applicant was not a resident in Australia during his formative years. In the first decade of his time in Australia he was a productive member of the workforce. The applicant's serious offending did not begin until 2009.
20. In analysing this consideration the factors are mixed. The applicant grew up outside Australia, but now, seemingly all of his family live here. He is close to his wife and children and to other parts of his extended family. However, he has weak connections to the broader community. He has not worked for almost a decade and the evidence of work prospects on release is unconvincing. The applicant has spent significant amounts of time away from his family as a consequence of his incarceration and time in immigration detention. As a result there have been long periods where his family has had to cope without his physical presence. His family ties are strong, but his ties to the community are otherwise weak.
21. This consideration weighs in favour of revocation of the visa cancellation, but only moderately.
22. In relation to the best interests of minor children, the Tribunal first noted that the appellant has two minor children who will be affected by the decision, SSD (aged 12) and SHD (aged 16).
23. The Tribunal then summarised the content of [8.4] of Direction 99 regarding the best interests of minor children and turned to consider in some detail the circumstances of each minor child, SSD and SHD, before turning to other minor children, being his nephews and niece. The Tribunal gave an "overall assessment" that given that the appellant is very close to his two daughters, this consideration "weighs very heavily in favour of revoking the visa cancellation" ([158]).
24. After addressing the expectations of the Australian community and each of the other considerations required in Direction 99, the Tribunal reached the following conclusions: CONCLUSION
25. The applicant's offending must be treated as very serious. The protection of the Australian community consideration weighs very strongly in favour of not revoking the visa cancelation as does the expectations of the Australian community consideration.
26. The considerations placed on the other side of the ledger are not so strong. The applicant's ties to Australia are exclusively family based and his connection with family has been the subject of significant disruption over the past 9 years due to his drug use, incarceration and family violence orders. While it is in the best interests of the applicant's daughters that he remain in Australia, I am not prepared to give that consideration significant weight given that the evidence on the matter is finely balanced. I accept that the applicant may well struggle to establish basic living standards in Fiji and his wife will be negatively impacted by his removal but these matters when weighed against the seriousness of the applicant's offending and his repeated failure to heed the warnings he has been given about the need to comply with Australian law, they do not provide another reason to revoke the cancellation of the applicant's visa.

LEAVE TO APPEAL

1. An order extending the time for making the application for review may be made if it is in the interests of the administration of justice to do so: s 477A(2)(b) of the Act. Considerations generally relevant to the exercise of the discretion to grant an extension of time include: the length of the delay, the nature of any explanation for the delay, whether the other party will suffer any prejudice by the extension of time, the prejudice to the applicant if time is not extended and whether the proposed grounds of review have sufficient merits to warrant extending time: see, eg Rere v Minister for Immigration and Border Protection [2018] FCA 846 at [16]-[17] (Thawley J); DZAEH v Minister for Immigration and Border Protection [2016] FCA 83 at [25] (Besanko J).
2. In his affidavit, the appellant explains that on 20 June 2024 he received the decision of the Tribunal and that at the time his lawyer informed him that he needed to await the Tribunal's reasons before proceeding further. On 11 July 2024, those reasons were issued and his lawyer then sent them to a barrister. On 25 July 2024, his lawyer informed him that the barrister was not able to proceed with the case and on the same day the appellant approached another barrister who informed him, a week later, that he should apply for a visa. A person then gave him the name of another lawyer, Marial Lewis from Crossover Law Group, whom he contacted on 5 August 2024. She advised that he needed to apply for legal aid or engage her as a private client. The appellant applied for legal aid on 7 August 2024. One week later when he called Legal Aid, he was informed that his request would take up to six weeks to process and further information was required. On 20 August 2024, he decided to engage Crossover Law Group as a private client. On 30 August 2024, Crossover Law Group advised him that they could act on his behalf if he wished to proceed. On 12 September 2024, the present application was filed.
3. I consider that the length of delay is non-trivial and is a factor against the grant of leave. However, I consider that the appellant has given a satisfactory explanation for the delay. In this regard I take into consideration the fact that he is in immigration detention, which necessarily will lead to difficulties in communication. I also note that the appellant has provided a fairly full explanation for the delay, providing details of the steps that he took and names of the legal representatives whom he contacted. He was inhibited in his task because the reasons for the decision of the Tribunal followed 21 days after the decision was made.
4. The central question for the grant of leave accordingly depends on the merits of the application. In this context I note that the Minister accepts that he will suffer no substantive prejudice if the extension is granted as the outcome of the application will depend on matters of legal submission. On the other hand, if the decision of the Tribunal is affected by jurisdictional error, the appellant will suffer considerable prejudice in that his visa will remain cancelled and he may be liable for deportation to Fiji.
5. Having regard to the merits of the draft grounds of appeal, to which I refer below, I consider that the extension of time sought should be granted.

GROUND ONE OF THE APPEAL

1. In his submissions in support of ground one, the appellant contends that the Tribunal overlooked the existence of uncles, aunts, cousins and grandparents in its assessment of his ties to the community and accordingly failed to adhere to [8.3] of Direction 99. He submits that the Tribunal erred in not expressly considering the fact that he has seven uncles, one aunt, 10 cousins and two grandparents, none of whom were mentioned in the Tribunal's reasons. He submits that ground one has two complexions, first, that the Tribunal failed to complete its review because it failed to take into account the strength, duration and nature of any family links that he has to his grandparents, uncles, aunts and cousins, who are Australian citizens, as required by paragraph 8.3(3) of Direction 99. Secondly, he submits that the Tribunal failed to deal with representations made to the Tribunal as to who those family members were.
2. The Minister submits that there is no requirement for the Tribunal to refer to every piece of information or every contention made to it and that it should not too readily be inferred that the Tribunal failed to consider a piece of evidence. He submits that the quality and content of the representations made to the Tribunal necessarily inform the Tribunal's consideration of it. He accepts that the Tribunal did not expressly refer to the number of uncles, aunts and cousins that the appellant has in Australia, but submits it does not follow that the Tribunal failed to have regard to the representation made.
3. The principles applicable to consideration of ground one are set out in Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; 275 CLR 582 (citations omitted):
4. Consistently with well-established authority in different statutory contexts, there can be no doubt that a decision-maker must read, identify, understand and evaluate the representations. Adopting and adapting what Kiefel J (as her Honour then was) said in Tickner v Chapman, the decision-maker must have regard to what is said in the representations, bring their mind to bear upon the facts stated in them and the arguments or opinions put forward, and appreciate who is making them. From that point, the decision-maker might sift them, attributing whatever weight or persuasive quality is thought appropriate. The weight to be afforded to the representations is a matter for the decision-maker. And the decision-maker is not obliged "to make actual findings of fact as an adjudication of all material claims" made by a former visa holder.
5. It is also well-established that the requisite level of engagement by the decision-maker with the representations must occur within the bounds of rationality and reasonableness. What is necessary to comply with the statutory requirement for a valid exercise of power will necessarily depend on the nature, form and content of the representations. 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. The decision-maker is not required to consider claims that are not clearly articulated or which do not clearly arise on the materials before them.
6. Labels like "active intellectual process" and "proper, genuine and realistic consideration" must be understood in their proper context. These formulas have the danger of creating "a kind of general warrant, invoking language of indefinite and subjective application, in which the procedural and substantive merits of any [decision-maker's] decision can be scrutinised". That is not the correct approach. As Mason J stated in Minister for Aboriginal Affairs v Peko-Wallsend Ltd, "[t]he limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind". The court does not substitute its decision for that of an administrative decision-maker.
7. None of the preceding analysis detracts from, or is inconsistent with, established principle that, for example, if review of a decision-maker's reasons discloses that the decision-maker ignored, overlooked or misunderstood relevant facts or materials or a substantial and clearly articulated argument; misunderstood the applicable law; or misunderstood the case being made by the former visa holder, that may give rise to jurisdictional error.
8. Direction 99 relevantly provides in 8.3: 8.3 The strength, nature and duration of ties to Australia (1) Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely. (2) In considering a non-citizen's ties to Australia, decision-makers should give more weight to a non-citizen's ties to his or her child and/or children who are Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely. (3) The strength, duration and nature of any family or social links generally with Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely. …
9. As a matter of context, it is necessary to consider the materials before the Tribunal in relation to the appellant's extended family.
10. In his Personal Circumstances Form, filed in response to the notice of his visa cancellation, the appellant listed his two brothers, mother and sister-in-law by name and provided the names of two uncles, four cousins and one aunt as being "other close family members", all of whom he said resided in Australia. Under the entry "State how many other relatives you have in Australia or overseas" he refers globally to "7 uncles, 8 nieces/nephews, 10 cousins and 2 grandparents". The Delegate in considering [8.3] of Direction 99 referred to the appellant's two grandparents, numerous uncles, aunts, cousins, nieces and nephews in Australia ([109]) and acknowledged that the non-revocation decision will have some adverse impact on those people ([111]).
11. In his Statement of Facts and Contentions before the Tribunal, the appellant referred to primary considerations 8.3(1)-(3) of Direction 99 and identifies by name his wife, daughters, mother, brothers and sister-in-law, as well as to his niece and two nephews ([33]) and then refers globally to "several uncles, aunts and cousins who are Australian citizens" ([35]).
12. The Tribunal was provided with statements from the appellant, his wife, mother, both brothers and one of his daughters. None referred specifically to members of his extended family. However, in his own statement, the appellant says, after referring to his wife and daughters: I also have other family here in Australia including my mother…They have always supported me and believed in me…I also have two brothers and a sister, nephews and nieces, uncles and aunts and cousins who live here.
13. The Minister in his Statement of Facts and Contentions before the Tribunal conceded that this consideration weighs in the appellant's favour "having regard to the fact that the Applicant has spent 22 years in Australia and that members of his immediate and extended family (including his children) reside here".
14. The central complaint made by the appellant is that the Tribunal failed to consider primary consideration 8.3(3) in that it made no reference to the strength, duration and nature of any family links with Australian citizens, having complied with 8.3(1) which distinguishes "immediate family members" from "family". It referred to the former but not the latter.
15. The Tribunal dealt with this subject at [126]-[135] of its reasons. It first addressed "immediate family", referring in terms to each of his wife, his mother, his two brothers, his daughters, as well as referring to a friend ("Sam"). With the exception of one daughter, all of these people provided statements.
16. The section concludes:
17. In analysing this consideration the factors are mixed. The applicant grew up outside Australia, but now, seemingly all of his family live here. He is close to his wife and children and to other parts of his extended family. However, he has weak connections to the broader community. He has not worked for almost a decade and the evidence of work prospects on release is unconvincing. The applicant has spent significant amounts of time away from his family as a consequence of his incarceration and time in immigration detention. As a result there have been long periods where his family has had to cope without his physical presence. His family ties are strong, but his ties to the community are otherwise weak.
18. This consideration weighs in favour of revocation of the visa cancellation, but only moderately. (emphasis added)
19. It is perhaps not completely clear to whom the emphasised passages refer, as the Tribunal has nowhere identified the range of people falling within its contemplation of "extended family". Unlike the delegate, the Tribunal does not mention grandparents, cousins or uncles.
20. Paragraph [8.3(3)] of Direction 99 requires that the decision maker to have regard to the strength, duration and nature of any family links generally with Australian citizens who have a right to remain in Australia indefinitely. The materials before the Tribunal identified each of these persons. They were plainly relevant to the Tribunal's considerations: Uelese v Minister for Immigration and Border Protection [2015] HCA 15; 256 CLR 203 at [61] (French CJ, Kiefel, Bell and Keane JJ). Although identified as persons upon whom the appellant relied in support of his connection to Australian society, the Tribunal nowhere made any reference to or identified the appellant's grandparents, uncles or cousins. However, in my view it would be to regard the Tribunal's decision with an eye too finely attuned to finding error to conclude that the reference above to "other parts of his extended family" in [134] did not include those people. In this regard, see the authorities referred to below at [44]. It was open to the Tribunal to make such an abbreviated reference having regard to the submissions before it.
21. Accordingly, I am not satisfied that the appellant has made out his case that the Tribunal omitted to consider a mandatory consideration in accordance with [8.3(3)] of the Direction.

GROUND TWO OF THE APPEAL

1. Ground two of the appeal concerns the manner in which the Tribunal considered primary consideration 8.4 of Direction 99, being the best interests of minor children in Australia affected by the decision. The appellant contends that the decision of the Tribunal was legally unreasonable because its reasoning at [158] and [170] was, in effect, legally incoherent.
2. In the course of addressing the consideration in [8.4], the Tribunal identified the appellant's two daughters, SSD and SHD. It reasoned in relation to SSD:
3. That it was very unsure whether the appellant will play a positive parental role in SSD's life if he is released into the community because his drug use makes him unreliable and at times threatening ([142]);
4. The appellant has engaged in appalling conduct in front of SSD, assaulting her mother in her presence, using her straws to administer drugs to himself and attempting violently to enter her home contrary to court orders ([143]);
5. However, it was satisfied that if the appellant is returned to Fiji that this would have a negative impact on SSD which is difficult to assess ([144]);
6. It took into account her view that she would like her father to stay in Australia ([146]); and
7. Concluded that "while the picture is mixed… on balance it is in SSD's best interests for her father to remain in Australia but only marginally so" ([147]).
8. The Tribunal reasoned in relation to SHD:
9. The appellant and SHD are close and in daily contact ([149]);
10. However, it was unsure whether the appellant will play a positive parental role if released into the community. It stated that if he resumes his use of ice, his presence in SHD's life may be harmful ([150]). It noted that he has an history of abusive conduct directed towards SHD and has attempted to enter her home violently and contrary to court orders ([151]);
11. The appellant's return to Fiji would have a negative impact on SHD, the extent of which is difficult to assess ([152]); and
12. Concluded that "while no clear answer emerges in relation to SHD's interests, given the importance of the relationship between a father and a daughter I am satisfied that on balance it probably is in SHD's best interests for her father to remain in Australia" ([154]).
13. The Tribunal then considered under the heading "Other minor children" the position of the appellant's two nephews and a niece, indicating there was not enough information for it to be satisfied that it is in the best interests of these children for the visa cancellation decision to be revoked ([157]).
14. It was in this context that the Tribunal gave its "Overall assessment" of the best interests of minor children at [158], saying that given that the appellant is very close to his two daughters, this consideration weights "very heavily" in favour of revoking the visa cancellation.
15. However, in its conclusions at [170] the Tribunal says that it is not prepared to give the consideration significant weight given that the evidence on the matter is "finely balanced".
16. The Minister correctly submits that the Tribunal's reasons should not be scrutinised "minutely and finely with an eye keenly attuned to the perception of error", citing Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; 252 FCR 352 at [45] (Griffiths, White and Bromwich JJ); Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at [30] (Brennan CJ, Toohey, McHugh and Gummow JJ). In considering the reasons as a whole, he submits that the Tribunal's finding at [158] must be understood in the light of its findings at [147] and [154]. This in turn informs the Tribunal's conclusion at [170] that it was not prepared to give the consideration significant weight because on the evidence about the topic of the best interest of the appellant's daughters is mixed. He further submits that the Tribunal used two descriptors about the weight of this consideration and that just because something "weighs heavily" it does not logically follow that it must be given "significant weight". Alternatively, he accepts that the reasoning in [158] is irreconcilable with [170], but that it might be viewed as a slip or mistake and that the correct reasoning of the Tribunal, considered as a whole, is that to be found at [147], [154] and [170].
17. In my respectful view, the reasoning of the Tribunal at [147], [154], [158] and [170] is incoherent. I do not consider that [158] can be reconciled with [170]. The import of [158] is that because the appellant is very close to his two daughters, a consideration of the best interests of minor children in Australia weighs "very heavily" in favour of revoking the visa cancellation. The reasoning in [170] represents an unexplained volte face, the Tribunal stating that it is not prepared to give that factor significant weight. Whilst it is true that at [147] and [154] the Tribunal gave reasons suggesting that in relation to each daughter, their bests interests were finely balanced or mixed, I do not consider that it is appropriate to find that the assessment made in [158] was a slip of the keyboard or an infelicity of expression. In that paragraph the Tribunal gives a reason for its conclusion - namely that the appellant is very close to his two daughters. It cannot be assumed that the reference to weight was anything but deliberate.
18. In the absence of any further reasoning, the conclusion at [170] appears to be capricious. The reader is left guessing whether the Tribunal simply overlooked its finding at [158] or made a mistake in [170] or vice versa. Either way, it is not for this Court to set to one side the clearly expressed conclusion at [158] on the basis that it may be a mistake. In this regard, I consider that appellant's citation of CRG17 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1567; 179 ALD 330 (Wheelahan J) to be apposite:
19. However, in my view, that is not a fair reading of the Authority's reasons. I am conscious that the Authority's reasons should not be construed minutely or with an eye attuned to error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang at 272 (Brennan CJ, Toohey, McHugh and Gummow JJ). But that does not mean that the reasons should be strained in order to reach an interpretation that would uphold the Authority's decision: AHX15 v Minister for Immigration and Border Protection [2015] FCA 1183; 68 AAR 98 at [24] (McKerracher J); Fang Wang v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1044 at [14]-[15] (Allsop J).
20. Accordingly, this ground of the appeal should be upheld.

DISPOSITION

1. The application for an extension of time should be granted. At the hearing of the matter, I granted leave for the appellant to rely on the grounds of appeal. I allow the appeal and will order that the decision of the Tribunal be quashed and that a writ of mandamus s directed to the Tribunal requiring it to determine the appellant's application in accordance with the law. The Minister must pay costs of the appeal and the costs of the proceedings before the Tribunal, to be taxed if not agreed. I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Burley.