DKN20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

appeal to this court 14 By further amended Notice of Appeal dated 29 January 2021, the Appellant appealed from the decision of the primary judge. The Notice of Appeal contained one new ground of appeal. The new ground of appeal is as follows: The Second Respondent failed to consider the impact of its prospective decision on a victim of the appellant's offending. A denial of procedural fairness to the appellant arose from the Tribunal's inattention to: a. Evidence of this impact which was before the Tribunal, and b. The requirement to consider the impact by force of a Ministerial Direction And the error was material, in the sense that it deprived the appellant of the opportunity of a successful outcome. 15 Relevantly, for present purposes, the new ground of appeal was not raised before the primary judge (the new ground of appeal). By the new ground of appeal the Appellant contends that the Tribunal failed to consider the impact of a non-revocation decision on a victim of his offending, namely the Appellant's ex-wife Ms J, contrary to the requirements of Direction No 79.

Leave to raise a new ground of appeal 16 The first issue for determination is whether this Court should consider a new ground of appeal not advanced in the Court below. In BZA16 v Minister for Immigration and Border Protection (No 2) [2019] FCA 60 at [20], Allsop CJ said: … Generally, unless there are exceptional circumstances, or a new ground clearly has merit, or there will be no real prejudice to the respondent in allowing agitation of the new ground, the Court will not grant leave for the new ground to be pleaded. 17 The principles to be considered in determining whether leave should be given to add a new ground were summarised by Charlesworth J in AAD16 v Minister for Immigration and Border Protection [2018] FCA 1433 at [17]-[23]: Leave to raise arguments not raised before the primary judge should only be granted if it is expedient in the interests of justice to do so: O'Brien v Komesaroff (1982) 150 CLR 310. The discretion is to be exercised having regard to the legal context in which the application is made. The present legal context is one in which this Court does not have original jurisdiction to judicially review the Tribunal's decision. That jurisdiction is vested in the FCC by s 476 of the Act. This Court's appellate jurisdiction is conferred for the purpose of correcting legal, factual or discretionary error affecting judgments from which an appeal to the Court lies; Federal Court of Australia Act 1976 (Cth) (FCA Act), s 24; MZYTT v Minister for Immigration and Citizenship (2013) 141 ALD 301 at [20]; Zaburoni v Minister for Immigration and Border Protection [2017] FCAFC 205 at [52]. Applications such as that made in the appellant's case have the effect of calling upon this Court, in its appellate jurisdiction, to judicially review an administrative decision it would otherwise have no original jurisdiction to review. In Metwally v University of Wollongong [1985] HCA 28; (1985) 60 ALR 68 the High Court said (at ALR 71): It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so. See also Gomez v Minister for Immigration and Multicultural Affairs [2002] FCA 480; (2002) 190 ALR 543. The phrase "exceptional circumstances" indicates that there remains a discretion in this Court to allow the introduction of the new grounds if it be "expedient in the interests of justice" to do so: Gomez at [18] (Hill, O'Loughlin and Tamberlin JJ); VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588 at [46] (Kiefel, Weinberg and Stone JJ). In VUAX the Full Court noted that the practice of raising arguments for the first time before the Full Court of this Court had become prevalent in appeals relating to migration matters. The Court continued (at [48]): … The Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated. Where, however, there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused. In our view, the proposed ground of appeal has no merit. There is no justification, therefore, for permitting it to be raised for the first time before this Court. See also Gupta v Minister for Immigration and Border Protection [2017] FCAFC 172 at [82] (Gilmour and Mortimer JJ), [106] (Logan J). In that case, Logan J said: 105 The additional ground sought to be raised does not raise any issue of pervasive public importance but rather whether, in the particular circumstances of the case before the Tribunal, there was a denial of procedural fairness. The place for the determination of any such jurisdictional error issue is, in all but the most exceptional cases, in the original jurisdiction of the Federal Circuit Court, not in this Court. The 'public interest in the fairness and expedition of the administration of justice' referred to in Coulton v Holcombe at 11, is abroad in this case, too. … 108 Another consideration which looms large in modern times in relation to the allowing of on [sic] appeal of the amendment of ground of appeal so as to raise a point not taken below is the sheer volume of cases arising under the Migration Act 1958 (Cth) (Migration Act). The resources which this Court can devote to the exercise of its appellate jurisdiction are finite. That appellate jurisdiction is exercisable as never before in respect of a great breadth of original Federal jurisdictions. To allow too readily in cases arising under the Migration Act the raising of points not taken in the original jurisdiction is fraught with the risk of encouraging the overwhelming of the efficient allocation of judicial resources to the timely disposal of other appeals in fields of appellate jurisdiction. The concerns there expressed by his Honour reflect the same policy considerations underlying s 37M of the FCA Act. Relevantly, s 37M(3) provides that a procedural power such as that to be exercised in the present case must be exercised in the way that best promotes the overarching purpose identified in s 37M(1) and (2): 37M The overarching purpose of civil practice and procedure provisions (1) The overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes: (a) according to law; and (b) as quickly, inexpensively and efficiently as possible. (2) Without limiting the generality of subsection (1), the overarching purpose includes the following objectives: (a) the just determination of all proceedings before the Court; (b) the efficient use of the judicial and administrative resources available for the purposes of the Court; (c) the efficient disposal of the Court's overall caseload; (d) the disposal of all proceedings in a timely manner; (e) the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute. 18 The Appellant submitted that leave should be granted for the following reasons: (1) the proposed ground has merit; (2) the Appellant was self-represented before the primary judge; (3) there is no prejudice to the Minister other than costs; and (4) the proposed ground is in relation to a question of law. 19 At the hearing, without conceding there was any merit to the new ground of appeal, the Minister agreed that the real issue was whether the ground had any merit. We proceeded on the basis that we would determine the application for leave to amend in the course of determining the appeal.

The new ground of appeal 20 The new ground of appeal alleges that the Tribunal failed to take into consideration the impact of a non-revocation decision on victims, as required by Direction No 79, and consequently the Appellant was denied procedural fairness. 21 Clause 14.4 of Direction No 79 refers to the "Impact on victims" and is one of the prescribed Other Considerations that the Tribunal must take into account where relevant. Specifically, cl 14.4 provides that, in deciding whether to revoke the mandatory cancellation of a visa, the following must be taken into account where relevant: 14.4 Impact on victims (1) Impact of a decision not to revoke on members of the Australian community, including victims of the non-citizen's criminal behaviour, and the family members of the victim or victims where that information is available and the non-citizen being considered for revocation has been afforded procedural fairness. 22 Two issues arose concerning the merit of the new ground of appeal. First, the proper construction of cl 14.4. Second, whether or not the material before the Tribunal raised as a relevant issue the impact of non-revocation on Ms J as a victim of previous offending by the Appellant.

Appellant's submissions 23 The Appellant submitted that the Tribunal failed to take into consideration a letter of support dated 22 February 2020 as evidence of the impact of the non-revocation decision on Ms J, who was a victim of the Appellant's first offence of common assault in 2011. In particular, the following extracts of the letter were said to encapsulate the impact that the Appellant's deportation would have on her and her family life in Australia: If he was to be deported, he would be psychologically devastated as it would make it almost impossible to maintain a father/daughter relationship Being away from her father may cause her damaging psychological strains. For me the relationship and associated conflict with [the Appellant] are over and completely closed and my focus now is solely on the well-being of my daughter. She needs to know that both of us are united to support her unconditionally. We plan to put the needs and the well-being of our daughter first. Indeed, I believe that my daughter will benefit from having both parents involved in her live with ongoing care of each parent Despite the major issues we had that lead to our separation, I still remember [the Appellant's] positive qualities such a being a humble, hardworking, caring, and dedicated to his family, friends and community…..I am committed to co-operate and to work harmoniously with him and his brother to arrange sharing custody and shared parenting of our daughter and invest for her well-being [Errors in original] 24 The Appellant submitted that the Tribunal's failure to consider the letter of support was significant for two reasons. First, the Tribunal did not contemplate the possibility that this evidence could be favourable to the Appellant. The letter was not raised by the Tribunal as a relevant matter and it was not addressed anywhere in its Reasons. In this respect, the Appellant contended that the Tribunal should have considered the possibility that Ms J's letter was a positive factor in favour of the revocation application and erred by not doing so. 25 Relatedly, the Appellant submitted that cl 14.4 should have been construed in a way that did not foreclose the possibility that evidence of a victim may be supportive of an application to revoke a mandatory cancellation pursuant to s 501(3A). The Appellant submitted that it should not be assumed that such evidence could only weigh against the making of that decision. Accordingly, it was a factor that the Tribunal was required to, but did not, give consideration to when making its decision. 26 Second, the representations made to the Tribunal in the letter of support, while not explicit, made clear what the impact on Ms J would be if the visa cancellation decision was affirmed. The Appellant submitted that it was clear that Ms J's wishes were to raise her daughter with the involvement of the Appellant, so that they could be a family together. The Appellant submitted that if he were deported it would come at a great personal cost, not only to their daughter, but also to Ms J. The Appellant submitted that the Tribunal was required to separately consider these representations in relation to Ms J as a victim, in addition to considering the interests of the Appellant's and Mr J's daughter.

Minister's submissions 27 The Minister submitted that the decision not to revoke the cancellation of the Appellant's visa had no impact on victims. This is because, properly construed, cl 14.4(1) of Direction No 79 is concerned with the impact on victims of a decision to revoke the visa cancellation, not vice versa. As the Tribunal affirmed the visa cancellation, cl 14.4 had no work to do. The Minister submitted that the impact on victims derives from permitting an offender to remain in Australia, not from affirming the cancellation of the visa, which has the effect of requiring the offender to be removed from Australia. Further, the Minister submitted that where victims are family members, the impact of a revocation of a visa cancellation decision is considered under other parts of Direction No 79. It is therefore sufficient that the Tribunal considered the impact of its decision on Ms J as a family member rather than separately as a victim. 28 The Minister also submitted that the Tribunal was under no obligation to separately consider the impact of its decision on Ms J as a victim. This is because it was only required to take into account Other Considerations, including the impact on victims, "where relevant". In determining what is relevant, it was necessary for the Tribunal to consider the representations made and to be satisfied that there is another reason why the cancellation of a person's visa should be revoked pursuant to s 501CA of the Act. 29 The Minister submitted that the representations made did not specifically raise as a relevant issue the impact of non-revocation on Ms J as a victim. Ms J did not give evidence at the hearing before the Tribunal nor did the Appellant make any submissions to the Tribunal regarding the impact on victims. Ms J's representations were confined to the effect of non-revocation on her proposal to co-parent with the Appellant and the ability of their daughter to maintain a relationship with him, as detailed in her letter of support. The Minister submitted that both of these matters were considered by the Tribunal. There were no representations made in the letter of support that could be taken as implicitly raising the impact on her as a victim. 30 The Minister referred to specific extracts of Ms J's letter of support in his written submissions. In particular, the Minister noted that Ms J stated that her relationship with the Appellant was "over and completely closed" and that her focus was "solely on the well-being of [their] daughter". Further, while Ms J expressed confidence that the Appellant would not re-offend, she did not do so in reference to whether he would reoffend against her. The Minister submitted that Ms J no longer speaks to the Appellant and only communicates with him through his brother. Therefore, it could not be said that Ms J wanted them to be a "family together", contrary to the Appellant's submission.

consideration 31 In making its decision not to revoke the visa cancellation, the delegate was required to comply with Direction No 79. This Direction deals with three types of statutory powers conferred by the Act: (1) the power to make a decision refusing a visa under s 501; (2) the power to make a decision cancelling a visa under s 501; and (3) the power to revoke the mandatory cancelation of a visa under s 501CA.

Construction of Clause 14.4 of Direction No 79 32 Clause 14.4(1) of Direction No 79 requires the decision-maker to take into account, where relevant, the impact on victims of a decision not to revoke a visa cancellation. To determine whether the Tribunal failed to take into consideration the impact on victims it is necessary to first determine the proper construction of cl 14.4. 33 In CGX20 v Minister for Immigration (No 2) [2020] FCA 1842, Colvin J noted (at [12]), in relation to cl 14.4, that: It appeared to invite a focus upon the consequence for victims if the person was removed from Australia which was an odd way of requiring a consideration of the likely case where victims may be expected to be concerned if the person was allowed to remain in Australia. 34 The potential confusion concerning this consideration was also discussed in Meyrick v Minister for Immigration [2020] FCA 677 at [122] (Jackson J): …The confusion arises because the references to 'impact' on victims and their family members imply that what the decision-maker has to take into account is potential adverse effects on those people, as does the reference to procedural fairness for the non-citizen. After all, it is the revocation of the cancellation of an offender's visa, with the result (usually) that the offender remains in the same country as the victims, which is most likely to cause 'impact' on those victims. And yet, the direction puts the impact as a consequence of a decision not to revoke, the effect of which will be that the non-citizen will be removed from Australia. It is unclear why that would have a potentially negative impact on the victims; for example, if a violent offender is removed from Australia, those whom he offended against would not need to fear that he would violently offend against them again. 35 The question in Meyrick was whether cl 14.4 "requires the Tribunal to consider a potentially positive effect of revocation on a victim" and whether the clause only applies when the "impact is suffered by the victim because he or she is a victim, not, for example, because he or she is a partner of the non-citizen": Meyrick at [123]. Justice Jackson was prepared to consider the potential positive impact on a victim in Meyrick but did not express a concluded view about the proper construction of cl 14.4. This decision has since been appealed, however the issue relating to cl 14.4 was not considered on appeal: see Meyrick v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 209. 36 In CGX20, Colvin J found that there was an "obvious error in the formulation of cl 14.4" and that the impact on victims could only be considered in circumstances where the person concerned was allowed to remain in Australia. No error was found on the part of the Tribunal for approaching the case in that way. At [18]-[20], Colvin J observed: However, in the case of a cancellation under s 501(3A), Direction 79 requires the decision maker to consider the impact of a decision not to revoke (thereby framing the inquiry by reference to what would be the case if the person was removed from Australia because the cancellation of the visa was not revoked). If the direction required there to be a focus on what would be the case if the visa cancellation was not revoked then it would be a most awkward way of directing attention to the adverse consequences for victims and their family members if the person was allowed to remain in Australia. Therefore, in my view the Tribunal was correct to approach the task on the basis that there was an obvious error in the formulation of cl 14.4 of Direction 79. In all likelihood it was caused by the negative character of an application under s 501CA(4) in which the applicant seeks to revoke the visa cancellation. For those reasons, cl 14.4 should be read in the manner expressed by the Tribunal and there was no error in approaching the present case in that way. What might be described as negative consequences for family members who were also victims of the offending if the person was not allowed to remain in Australia were matters to be considered under other aspects of Direction 79. 37 We respectfully adopt the reasoning of Colvin J in CGX20. There was no scope for the Tribunal to consider the impact on Ms J as a victim pursuant to cl 14.4 and accordingly no error in its construction of that clause, nor in its reasoning consequent upon that construction. 38 Following the hearing of this appeal, the Full Court of this Court affirmed Colvin J's reasoning in CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 69 (Rares, O'Callaghan and Jackson JJ). In particular, the Full Court held at [21] and [23]: Here it is clear enough that, in the exercise of a power not to cancel or to grant a visa, both cll 10.4 and 12.3 require a decision-maker to consider the impact on members of the community, including any victim of the non-citizen's criminal behaviour, of a decision, respectively, not to cancel the visa or to grant it. Likewise, cl 14(1)(d) requires, where relevant, the decision-maker to take into account the impact on victims on which cl 14.4 expands. The word "not" in the introductory part of cl 14.4 appears anomalous, albeit that, as with cll 10.4 and 12.3, it is connected with the nature of the decision called for under the relevant provision, here, s 501CA(4). However, the other two provisions are directed to situations in which a visa is left in place (the visa is not cancelled or is granted), whereas the use of the word "not" in cl 14.4 is directed to the impact on victims and the community were a decision made not to revoke a visa cancellation, such that the visa remains cancelled. … The construction arrived at by the Tribunal, which the primary judge considered correct, is more consistent with the analogously expressed requirements in cll 10.4 and 12.3 than with a literal construction of cl 14.4. The failure of the Minister to advance any intelligible reasoning process as to why the literal construction ought be applied enables us more confidently to find that the primary judge was correct in treating the word "not" in cl 14.4 as an error or surplusage that should be ignored so that persons bound by Direction 79 will approach their decisions consistently under cll 10.4, 12.3 and 14.4 in respect of the impact on the community, including victims, if the non-citizen were to hold a visa.

Was the impact on Ms J as a victim raised as a relevant issue? 39 It follows from the above conclusion that it is strictly unnecessary to decide the question of whether the Appellant made representations concerning the impact of a decision not to revoke the cancellation on Ms J as a victim. However as this was argued, we consider it appropriate to express our findings in relation to this contention. The Minister correctly submitted that the Other Considerations in Direction No 79 need only be taken into account by the Tribunal "where relevant": Minister for Home Affairs v HSKJ [2018] FCAFC 217; 266 FCR 591 (Greenwood, McKerracher and Burley JJ) at [52]. What is "relevant" to a decision under s 501CA of the Act depends in part on the representations made by the applicant for revocation. The Tribunal is required to consider those representations for the purposes of deciding whether they are satisfied there is another reason why the visa cancellation should be revoked: Navoto v Minister for Home Affairs [2019] FCAFC 135, [88] (Middleton, Moshinsky and Anderson JJ). 40 In Bale v Minister for Immigration [2020] FCA 646, Perram J held at [26] that "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". See also Hodgson v Minister for Immigration and Border Protection [2017] FCA 1141 at [40] (Tracey J); RZSN v Minister for Home Affairs [2019] FCA 1731 at [67] (Anderson J). 41 This proposition was also discussed in RZSN, by reference to Direction No 65 which was replaced by Direction No 79, at [60] (Anderson J): Relatedly, the fact that such a decision-maker does not refer to a consideration prescribed by Direction No. 65 in the precise compartmentalised sequence of headings set out in that instrument is not determinative of whether the decision-maker has lawfully considered, construed and applied that consideration. Although it will frequently be convenient, and indeed desirable, for the decision-maker's reasons to reflect the headings and sub-headings in Direction No. 65, the failure to consider a relevant matter under its allotted heading is not fatal to the valid exercise of the decision-maker's jurisdiction. The question whether the decision-maker has lawfully considered, construed and applied such a consideration is a matter to be inferred from the decision-maker's reasons as a whole. The existence and content of headings in the decision-maker's reasons will be relevant, but they will not be determinative. 42 In its Reasons, the Tribunal considered the impact of its decision on Ms J as a family member, under the heading "Best interests of minor children". This was appropriate as her statements in the letter of support concerning her desire to co-parent and to preserve the relationship between the Appellant and his daughter were plainly relevant to a consideration of the best interests of her and the Appellant's daughter. It is clear that the Tribunal had turned its mind to Ms J, and the impact on her of removing the Appellant from Australia, when deciding whether or not to revoke the visa cancellation decision, though it had not done so by express reference to cl 14.4. 43 In Bale, Perram J noted at [27] that this proposition could be "outflanked" if there was some aspect of the wife's evidence as a victim which was distinct from the evidence put forward as a spouse. Ms J's letter of support expressed reasons for supporting her husband's desire to remain in Australia. However, the letter neither expressly, nor impliedly, makes any statement regarding the impact of non-revocation on her as a victim, as distinct from the impact on her daughter and the co-parenting of her daughter. Both of these matters were considered by the Tribunal in its Reasons. In Navoto, the Court held at [88] that "importantly, decision-makers under s 501CA(4) of the Act are not required to consider a reason in favour of revocation not advanced by the person making representations to the decision-maker". No other material relating to the impact on Ms J as a victim was expressly put to the Tribunal. Accordingly, the Tribunal was not required to separately consider the impact of its decision on Ms J as a victim.

disposition 44 For the above reasons, the proposed ground of appeal has no merit. Accordingly, leave to raise a new ground of appeal is refused and the appeal is otherwise dismissed. I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Collier, Markovic and Anastassiou.