GNRK v Minister For Immigration, Citizenship, Migrant Services and Multicultural Affairs

Federal Court of Australia (Full Court)|2022-05-24|Before: Snaden JJ

The appeal be dismissed.
The appellant pay the first respondent's costs as agreed or taxed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

THE COURT: 1 This is an appeal from an order dismissing the appellant's application for judicial review of a decision of the second respondent (Tribunal) made on 5 February 2021 (but for which it seems written reasons were published on 17 February 2021): GNRK v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 932. The Tribunal had affirmed a decision made by a delegate of the first respondent (Minister) pursuant to s 501(1) of the Migration Act 1958 (Cth) refusing to grant a Bridging E (Class WE) visa (Visa) to the appellant.

the tribunal's decision 11 Before the Tribunal there was no dispute that the appellant did not pass the character test as set out in s 501(6)(a) of the Act because he has a substantial criminal record as defined in s 501(7)(c) of the Act. The appellant had been sentenced to a term of imprisonment of 12 months or more. 12 The Tribunal noted that it was bound, under s 499(2A) of the Act, to comply with Direction No 79 "Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA", which was in force at the time. It outlined the requirements of Direction No 79 referring, in particular, to the three mandatory considerations which the Tribunal is required to consider in the context of a decision to refuse a non-citizen's visa and to the non-exhaustive list of other considerations to be taken into account. 13 Before proceeding further it is convenient to note that the three mandatory considerations in Direction No 79 are: protection of the Australian community, which the Tribunal referred to as primary consideration A; the best interests of minor children in Australia, which the Tribunal referred to as primary consideration B; and the expectations of the Australian community, which the Tribunal referred to as primary consideration C. 14 The Tribunal addressed each of those considerations. Of particular relevance to the grounds raised by the appellant before the primary judge and which arise on appeal are the Tribunal's consideration of: (1) para 11.1.2 of Direction No 79 which concerns the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct, which the Tribunal was required to and did address as part of its consideration of primary consideration A; and (2) para 11.2 of Direction No 79 which concerns the best interests of minor children in Australia affected by the decision, i.e. primary consideration B. 15 The Tribunal commenced its consideration of the risk to the Australian community should the appellant commit further offences or engage in other serious conduct by referring to the terms of para 11.1.2(1) of Direction No 79. That paragraph requires that, in considering whether the non-citizen represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision makers should have regard to the principle that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. 16 The Tribunal referred at [145]-[148] of its reasons to a number of harms which it said flowed from the circulation and use of cannabis in the community. At [150]-[151] of its reasons the Tribunal referred to the appellant's submission that cannabis is no more serious than alcohol or tobacco but observed that that proposition was not supported by the evidence before it and, on the basis of its analysis of the evidence, rejected the submission. 17 At [155]-[157] of its reasons the Tribunal concluded as follows: 155. The seriousness of the potential harm which could flow from a repetition of the applicant's offending is so serious, that the Tribunal considers that the Australian community's tolerance for any risk of this harm would be minimal, if any. 156. Having regard to this, as well as paragraph 6.3(4) of the Direction, the Tribunal considers that any risk of similar conduct by the applicant is unacceptable. 157. A consideration of paragraph 11.1.2(1) therefore weighs heavily against this application. 18 The Tribunal turned to consider para 11.1.2(2) of Direction No 79 which requires decision makers to have regard to the principle that Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia. The Tribunal concluded at [160] that a consideration of that factor weighed heavily against the appellant. 19 Commencing at [161] of its reasons, the Tribunal considered para 11.1.2(3) of Direction No 79 which requires that, in considering the risk to the Australian community, decision makers must have regard to the following matters cumulatively: (a) the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and (b) the likelihood of the non-citizen engaging in further criminal or other serious conduct taking into account: (i) information and evidence from independent and authoritative sources on the likelihood of the non-citizen reoffending; and (ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken); and (iii) the duration of the intended stay in Australia. 20 In considering para 11.1.2(3) the Tribunal: (1) in relation to subpara (a), had regard to an article by Professor David Nutt titled "Estimating drug harms: a risky business?" (Nutt Article) on which the appellant relied and a document described as exhibit R2 which the Tribunal said documented "[t]he nature of the harm to individuals or the Australian community should the [appellant] engage in further criminal or other serious conduct". The Tribunal found that a consideration of para 11.1.2(3)(a) weighed heavily against the application: at [166]; (2) in relation to subpara (b)(i), took into account the evidence of Dr Chan, a senior clinical psychologist, and accepted that the probability of the appellant reoffending was low, which was consistent with his conduct during the period that he was on bail. The Tribunal gave this some weight: at [167]; (3) in relation to subpara (b)(ii), noted that there was no evidence that the appellant had undertaken any specific rehabilitation but that there was evidence that he had spent time in the community since his offending, albeit while on bail and awaiting sentence. The Tribunal gave this some weight: at [168]; and (4) in relation to subpara (b)(iii), noted that a consideration of the appellant's intended stay weighed against his application. The Tribunal said that in considering the duration of the appellant's intended stay in Australia it was mindful of the fact that the appellant was seeking a bridging visa (ie the Visa) pending the issue of a partner visa. However, it also noted the concession made by the appellant's counsel that the appellant intended to stay permanently in Australia notwithstanding that the visa in issue was one of limited but uncertain duration: at [169]. 21 The Tribunal then considered para 11.1.2(4) of Direction No 79 noting that it required decision makers to consider the risk of harm in the context of the purpose of the intended stay and the type of visa being applied for, including whether there are strong or compassionate reasons for granting a short-term stay. The Tribunal noted that the appellant was seeking a bridging visa, pending a determination in respect of his application for a partner visa which, if granted, would entitle him to stay permanently. It observed that the intention to stay permanently would mean that the Australian community would be permanently exposed to the risks which would flow from any further offending by the appellant and concluded that this weighed heavily against the appellant: at [170]. 22 Having regard to all of the evidence and each of the relevant factors in Direction No 79, the Tribunal concluded overall that primary consideration A "weighs extremely heavily in favour of refusal of the [Visa]". 23 Next the Tribunal considered primary consideration B, the best interests of minor children in Australia affected by the decision. 24 The appellant has one child, referred to by the Tribunal as Child G, born in September 2018. The Tribunal set out para 11.2(4) of Direction No 79 which prescribes the factors to be considered, where relevant, in relation to each child. They are: a) The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact); b) The extent to which the non-citizen is likely to play a positive parental role in the future (taking into account the length of time until the child turns 18), and including any Court orders relating to parental access and care arrangements; c) The impact of the non-citizen's prior conduct, and any likely future conduct, and whether that conduct has, or will have, a negative impact on the child; d) The likely effect that any separation from the non-citizen would have on the child, taking into account the child's or non-citizen's ability to maintain contact in other ways; e) Whether there are other persons who already fulfil a parental role in relation to the child; f) Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child); g) Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and h) Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct. 25 In considering those factors, at [175]-[180] the Tribunal reasoned as follows: 175. In the present case, there is only one relevant child who will be under the age of 18 years at the expected time of decision. That Child G was born in September 2018. The Applicant is her father. They have not been in each other's physical presence since October 2019 around the time the Applicant was imprisoned. The Tribunal accepts that the Applicant played the asserted role in the child's life up to the time of his imprisonment. For the purposes of paragraph 11.2(4)(a), consideration of the relationship weighs in favour of the Applicant. 176. In regard to paragraph 11.2(4)(b), it will be some sixteen years before the child turns 18. Whether the Applicant is to play a positive role in her future would be very much dependent on his capacity to abstain from criminal activity, and whilst his prospects of re-offending has been assessed as low, it nevertheless remains to be seen. If the Applicant did not abstain from criminal activity, the consequences for the child might or might not be significant. There are no present court orders relating to parental access and child care. The Tribunal gives this consideration some limited weight in favour of the Applicant. 177. In regard to paragraph 11.2(4)(c), the Tribunal considers that provided the Applicant abstains from further offending, which is a matter of some uncertainty, his prior and future conduct would be unlikely to have a negative impact on the child. The Tribunal gives this consideration some limited weight in favour of the Applicant. 178. In regard to paragraph 11.2(4)(d), the Tribunal accepts that should the Applicant's visa be refused this would be likely result in his separation from the child, and this in turn would have an adverse impact on the child, particularly in consequence of absence of physical contact, for which technology presently provides no suitable substitute. The Tribunal gives this consideration weight in favour of the Applicant. 179. In regard to paragraph 11.2(4)(e), the Tribunal notes that the Applicant's partner already fills a parental role in relation to the child. The Tribunal gives this consideration neutral weight. 180. In regard to paragraph 11.2(4)(f), the child's age renders it impossible to ascertain her views. The Tribunal gives this consideration neutral weight. (Emphasis in original.) 26 The Tribunal found that there was no relevant evidence in relation to the factors at 11.2(4)(g) and (h) and gave them each neutral weight. 27 The Tribunal concluded that an overall consideration of primary consideration B weighed in favour of the grant of the Visa: at [183]. 28 After considering primary consideration C, which the Tribunal found was to be "given weight in favour of affirming the decision under review", it turned to address the other considerations. In doing so, the Tribunal only substantively considered impact on family members, finding that the remaining considerations were not relevant to the appellant's application. In relation to that consideration, the Tribunal considered the impact on "Witness A2", the appellant's partner, and Child G and concluded that this consideration weighed "slightly in favour" of the appellant. In reaching its conclusion the Tribunal had regard to Dr Chan's evidence both in relation to the appellant's partner and Child G. It rejected Dr Chan's evidence in relation to the appellant's partner, principally because Dr Chan's opinion was based on what he was told about her by the appellant and without interviewing her, but was prepared to accept Dr Chan's evidence insofar as it related to the possible impact of refusal of the Visa on Child G. 29 Having regard to its findings in relation to each of the considerations the Tribunal found that the application of Direction No 79 favoured refusal of the Visa and thus concluded that it could not approve the Visa.

the primary judge's decision 30 Before the primary judge the appellant raised a single ground of review alleging that the Tribunal made findings in relation to the required considerations in Direction No. 79 which misconstrued the nature of his evidence and submissions and so lacked a logical, rational or probative basis that the Tribunal's decision was legally unreasonable. There were six particulars to that review ground, only four of which were pressed before the primary judge. They were: (b) The finding, at [132]-[137] of the decision in relation to par. 11.1.1(g) and (h) of Direction 79, that the applicant's criminal offences were "frequent", and demonstrated a "trend of increasing seriousness", and they were made more serious by their "cumulative effect", misconstrued the nature and frequency of the applicant's criminal offences. Fairly construed, the applicant's criminal offences: (i) were not "frequent", having taken place in "short compass" (judge's sentencing remarks) over a period of less than three months between June and September 2016; and (ii) did not demonstrate a "trend of increasing seriousness", nor were they made more serious by their "cumulative effect", since they were part of the same course of events over a period of less than three months. (c) The finding, at [156]-[157] of the decision in relation to par. 11.1.2(1) of Direction 79, that the applicant's criminal conduct was so serious that "any risk of similar conduct by the applicant is unacceptable", overstated the actual seriousness of the applicant's criminal conduct by "cherry-picking" the evidence in reports as to the danger of cannabis provided by the parties, such that the Tribunal: (i) only emphasised the harmful effects of cannabis in the reports; (ii) failed to consider the context in the reports to the relative danger of cannabis; and (iii) failed to consider specific references and the tenor of the report provided by the applicant, that cannabis is relatively less harmful than other legal substances which are in common use, such as alcohol and tobacco. (d) The finding, at [162]-[166] of the decision in relation to par. 11.1.2(3)(a) of Direction 79, that the nature of the harm should the applicant engage in further criminal conduct was such that it "weighs heavily against the applicant", overstated the actual seriousness of the applicant's criminal conduct by "cherry-picking" the evidence in reports provided by the parties as to the danger of cannabis. (e) The finding, at [183] of the decision in relation to par. 11.2 of Direction 79, that the best interests of the applicant's two year old daughter weighed "in favour" of the grant of the visa to the applicant, failed to engage with or to fairly construe the evidence provided in relation this (sic) factor in the following manner: (i) In relation to par. 11.2.4(a) of Direction 79, the Tribunal at [175] accepted that the applicant played "the asserted role in the child's life up to the time of his imprisonment", but failed to identify the nature of that role or to engage with this consideration. (ii) In relation to par. 11.2.4(b) of Direction 79, the Tribunal at [176] considered whether the applicant would play a positive role in the child's future "would be very much dependent on his capacity to abstain from criminal activity" and gave this factor "limited weight in favour of the applicant". This failed to address the wording of that factor, which required the Tribunal to consider "The extent to which the non-citizen is likely to play a positive parental role in the future (taking into account the length of time until the child turns 18)". (iii) In relation to par. 11.2.4(c) of Direction 79, the Tribunal at [177] considered that the applicant's abstention from further offending was "a matter of some uncertainty", such that a consideration of whether his prior and future conduct would have a negative impact on the child was only given "limited weight in favour of the applicant". This failed to engage with or take into consideration the assessment - accepted by the Tribunal - that the applicant's prospects of re-offending had been assessed as "low". (iv) In relation to par. 11.2.4(d) of Direction 79, the Tribunal at [178], when considering the likely effect on the applicant's two year old daughter of any separation from the applicant, the Tribunal at [178] merely gave "weight" to this factor in favour of the applicant. The Tribunal failed to engage with or consider the evidence - including that of Dr Chan which was accepted in full by the Tribunal at [206] - that the separation of the applicant's daughter from him would be "very significant", and may affect her academic, emotional, social and psychological development, lower her self-esteem and academic achievement, impair her emotional development and relationship formation, cause mental health problems, increase risk-taking behaviour; and make her vulnerable to teenage pregnancy, promiscuity, poverty, violence, and serious emotional, social, psychological and sexual problems. (v) In relation to par. 11.2.4(e) of Direction 79, the Tribunal at [179], when considering whether there were other persons who already fulfil a parental role in relation to the child, noted that the applicant's partner already filled a parental role in relation to the child and gave this factor "neutral weight". This failed to consider or take account of the evidence that if the applicant was refused a visa and removed from Australia his daughter would lose the only person who plays a paternal role, and that a father's involvement in the development of his daughter is critically important. 31 In relation to particular (b), by which the appellant challenged the Tribunal's characterisation of his crimes as "frequent", demonstrating a "trend of seriousness", made more serious by their "cumulative effect", the primary judge found by reference to the sentencing judge's remarks: (1) that the Tribunal could not be criticised for describing the commission of three offences within four months as "frequent", noting this was an evaluation solely within the purview of the Tribunal; (2) nor was it unfair for the Tribunal to characterise the offences as showing a trend of increasing seriousness, particularly where the third offence was significantly more serious than the first two; and (3) given that the sentencing judge identified two distinct courses of conduct, the Tribunal found that the there was a cumulative effect to the appellant's repeat offending. 32 The primary judge concluded that the Tribunal's findings were neither so illogical nor irrational that no reasonable decision maker could have made the same findings on the same evidence: GNRK at [37]. 33 In relation to particular (c), which challenged the Tribunal's finding that the nature of the appellant's offences was so serious that any risk of reoffending was unacceptable, the primary judge found that, in assessing the appellant's circumstances for the purpose of para 11.1.2(1) of Direction No 79, the Tribunal's focus was on the risk of future harm should the conduct be repeated. The primary judge observed that [156] of the Tribunal's reasons must be read in the context of the paragraph immediately preceding it where the Tribunal acknowledged that repetition of the appellant's offending was a relevant consideration. That being so, the primary judge found that the Tribunal had not closed its mind to other factors that might tip the balance in the appellant's favour. 34 Particular (d) concerned the Nutt Article and a contention that the Tribunal "cherry picked" references to potential harm caused by cannabis use from it. The primary judge found that the Tribunal considered parts of the Nutt Article that were favourable to the appellant and his submission that "cannabis is no more harmful than alcohol or tobacco" but ultimately placed greater weight on material that documented the harmful effects of cannabis. The primary judge observed that it was for the Tribunal to determine the weight that it gave to the evidentiary material relied on by the parties when considering the risk of tolerance of the Australian community for such offending and the fact that the Tribunal did not refer to all of the matters in the Nutt Article did not support an inference that they were overlooked. 35 Particular (e) challenged the weight the Tribunal placed on the representations the appellant made in relation to the best interests of the minor child. The appellant's complaint concerned the Tribunal's treatment of Dr Chan's evidence alleging that the Tribunal failed to engage with Dr Chan's predictions on the effect of refusal of the Visa on the child. The primary judge noted that the Tribunal referred to Dr Chan's report and to his oral evidence in its reasons, summarising where it had done so and its findings in relation to it. Having done so, at [53] her Honour found that: This submission is without merit. The Tribunal's 'acceptance' of Dr Chan's evidence in so far as it related to the possible, as to (sic) opposed to probable or certain, impact of visa refusal on the child was a conclusory statement, reached after the Tribunal's engagement with and assessment of Dr Chan's evidence. It is apparent from a consideration of Dr Chan's report and oral testimony that he was not giving an opinion as to likely detriment to be suffered by this particular child. Rather, Dr Chan was speaking in general terms about what the academic literature, and his clinical experience, told him about the most severe consequences for a female child who grows up without a father. The Tribunal was entitled to accept Dr Chan's evidence as to the possibility of consequences arising from the applicant's visa rejection on his daughter whilst at the same time determining to give that consideration weight, but not any greater weight. (Emphasis in original.) 36 The primary judge concluded that the Tribunal had engaged with and fairly construed the evidence provided in relation to the best interests of the child and that its finding on the issue was not so illogical or irrational that no reasonable decision maker could have made the same findings on the same evidence.

the appeal 37 The appellant raises three grounds of appeal in his notice of appeal filed on 7 September 2021 but only presses grounds 2 and 3 being that: 2. The Court erred at [43] by failing to find, in relation to risk to the Australian community, the Tribunal's conclusion that "any risk of similar conduct by the applicant is unacceptable" so overstated the seriousness of the applicant's criminal conduct that no reasonable decision-maker could have made the same finding on the same evidence. 3. The Court erred at [54] by finding that the Tribunal had engaged with and construed fairly, the evidence and submissions provided by the appellant in relation to the best interests of his child. (Emphasis in original.)

Ground 2 38 By this ground, which concerns the primary judge's findings in relation to particulars (c) and (d) of the ground of review raised below, the appellant attacks her Honour's finding at [43] of GNRK where her Honour said: The applicant's contentions in relation to particulars (b) and (c) rise no higher than inviting impermissible merits review. The Tribunal's findings are neither so illogical nor irrational that no reasonable decision-maker could have made the same findings on the same evidence. 39 The appellant contends that the primary judge ought to have found that the Tribunal's conclusion that "any risk of similar conduct by the 'appellant' is unacceptable" so overstated the seriousness of his criminal conduct that no reasonable decision maker could have made the same finding on the same evidence.

Appellant's submissions 40 The appellant raises two challenges to the finding on risk to the community. 41 The first is said to arise from the Minister's contention that even a low risk of reoffending would be unacceptable to the community, a contention which the appellant said the Tribunal referred to at [144] of its reasons and accepted in relation to his criminal conduct at [156] of its reasons. The appellant submitted that Dr Chan had considered that he had a low risk of reoffending, which ought to have been a very favourable factor for him, but that was nullified by the Tribunal's finding that, because of the nature and seriousness of his offending, even a low risk of reoffending was unacceptable. 42 The second aspect of the appellant's challenge is that, on a fair reading of all of the evidence before the Tribunal, there was no reasonable basis for concluding that cannabis was such a dangerous drug, or that it was likely to have such a detrimental effect on the community, that even a "low" risk of the appellant reoffending would be unacceptable. The appellant contended that the Tribunal barely referred to the Nutt Article, other than to "cherry pick" the references to potential harm caused by cannabis use. He submitted that this was taken completely out of context with the conclusion of the article, which was that "overall cannabis use does not lead to major health problems" but, because of public and media concern, the political response had been to rank cannabis higher in terms of danger than accepted drugs such as alcohol and tobacco which were, in fact, more dangerous than cannabis.

Consideration 43 The legal principles as to the determination of whether a decision is legally unreasonable, as contended by the appellant before the primary judge and raised again for consideration on this appeal, were not in dispute. They are summarised by the primary judge at [27]-[30] of GNRK. It is not necessary to set out those principles in detail here. It is sufficient to refer to the observations of Allsop CJ in Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 at [8] and [11]-[12] (which were also referred to by the primary judge): 8 The content of the concept of legal unreasonableness is derived in significant part from the necessarily limited task of judicial review. The concept does not provide a vehicle for the Court to remake the decision according to its view as to reasonableness (by implication thereby finding a contrary view unreasonable). Parliament has conferred the power on the decision-maker. The Court's function is a supervisory one as to legality: see Li at [30], [66] and [105]. … 11 The boundaries of power may be difficult to define. The evaluation of whether a decision was made within those boundaries is conducted by reference to the relevant statute, its terms, scope and purpose, such of the values to which I have referred as are relevant and any other values explicit or implicit in the statute. The weight and relevance of any relevant values will be approached by reference to the statutory source of the power in question. The task is not definitional, but one of characterisation: the decision is to be evaluated, and a conclusion reached as to whether it has the character of being unreasonable, in sufficiently lacking rational foundation, or an evident or intelligible justification, or in being plainly unjust, arbitrary, capricious, or lacking common sense having regard to the terms, scope and purpose of the statutory source of the power, such that it cannot be said to be within the range of possible lawful outcomes as an exercise of that power. The descriptions of the lack of quality used above are not exhaustive or definitional, they are explanations or explications of legal unreasonableness, of going beyond the source of power. 12 Crucial to remember, however, is that the task for the Court is not to assess what it thinks is reasonable and thereby conclude (as if in an appeal concerning breach of duty of care) that any other view displays error; rather, the task is to evaluate the quality of the decision, by reference to the statutory source of the power and thus, from its scope, purpose and objects to assess whether it is lawful. The undertaking of that task may see the decision characterised as legally unreasonable whether because of specific identifiable jurisdictional error, or the conclusion or outcome reached, or the reasoning process utilised. 44 The first aspect of this ground of appeal focuses attention on the Tribunal's reasons at [144] and [155]-[156]. At [144] the Tribunal said: Paragraph 11.1.2(1) requires that in considering whether the non-citizen represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principal that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct, and the harm that would be caused if it were to be repeated, is so serious that any likelihood that may be repeated may be unacceptable. 45 At [155]-[156] of its reasons (see [17] above) the Tribunal opined that the potential harm from any reoffending by the appellant was so serious that it considered that the community's tolerance for any risk of harm "would be minimal, if any". Having regard to that, as well as para 6.3(4) of Direction No 79, it considered "any risk of similar conduct is unacceptable". 46 In considering para 11.1.2(3)(b)(i) of Direction No 79 the Tribunal accepted Dr Chan's evidence that the probability of the appellant reoffending was low. It gave that factor some weight in the appellant's favour: reasons at [167]. But, as the Minister submitted, whether that low risk of reoffending presented an unacceptable risk to the Australian community for the purposes of the question posed by para 11.1.2(1) of Direction No 79 was another matter. 47 That question required the Tribunal to consider whether the non citizen represents an unacceptable risk of harm having regard to the principle that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases and that some conduct, and the harm that would be caused if it were to be repeated, is so serious that any likelihood that it may be repeated may be unacceptable (emphasis added). As is evident from the Tribunal's findings at [144], [149] and [155]-[156] of its reasons it is that question to which the Tribunal turned its mind. 48 The Tribunal considered whether, if the appellant repeated the conduct, which before the Tribunal the parties accepted was very serious, the harm to the Australian community would be so serious that any likelihood of repeat offending would be unacceptable. The Tribunal's finding in relation to that question and, in particular, its finding that any risk of similar conduct by the appellant is unacceptable did not "nullify" Dr Chan's evidence. As the primary judge said, it did not result in the Tribunal closing its mind to a consideration of other factors that might tip the balance in favour of the appellant. Indeed the Tribunal did consider other factors and in that context had regard to, and accepted, Dr Chan's evidence in relation to the appellant's low risk of recidivism in considering para 11.1.2(3)(b)(i) of Direction No 79. 49 The second aspect of this ground of appeal concerns the Nutt Article, a public lecture delivered by Professor David Nutt in 2009, which considered the regulation of drugs in the United Kingdom including by the Misuse of Drugs Act 1971 (UK). The classification of drugs under that Act affected associated penalty with class A drugs carrying a heavier penalty than class C drugs. The Nutt Article focuses on cannabis, being the only drug which has been downgraded for the purposes of the Misuse of Drugs Act. The author notes that the "issues relating to cannabis pose a challenge as to whether the Act is working as it was originally intended". 50 The Tribunal had regard to the Nutt Article. At [163]-[164] of its reasons it said: 163. Exhibit A3, is an article entitled "Estimating drug harms: a risky business?". This article is written by Professor David Nutt. The points made by Professor Nutt include: • cannabis is a harmful drug and there are concerns about widespread use of cannabis amongst young people; • a concentrated public health response is required to drastically reduce its use; • current evidence suggests a probable but weak causal link between psychotic illness and cannabis use; • cannabis use is associated with an increased experience of psychotic disorders; • use of a lot of cannabis will make a person more prone to having psychotic experiences that include schizophrenia, but this is relatively rare, and causation is uncertain; • smokers of cannabis are 2.6 times more likely to have a psychotic-like experience than non-smokers. 164. Professor Nutt rated cannabis as below alcohol and tobacco in terms of harm ranking, however it is unclear as to whether these rankings included harm from industrial, motor vehicle, and general accidents. Professor Nutt stated: I think we have to accept young people like to experiment - with drugs and other potentially harmful activities - and what we should be doing in all of this is to protect them from harm at this stage of their lives…. We also have to fully endorse harm reduction approaches at all levels and especially stop the artificial separation of alcohol and tobacco as "non-drugs". 51 As identified by the primary judge, and as is evident from [165] of its reasons, the Tribunal also had regard to evidence tendered by the Minister, namely a paper published in 2020 by the Australian Institute of Health and Welfare titled "Alcohol, tobacco & other drugs in Australia" and the National Drug Strategy 2017-2026. It ultimately placed greater weight on that material. 52 The appellant criticises the Tribunal for "cherry picking" the harmful consequences of cannabis use from the Nutt Article and taking those references completely out of context having regard to that article's overall conclusion. 53 In NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [13]-[14] a Full Court of this Court (Gray, Tamberlin and Lander JJ) relevantly said: 13 … The appellants also complained that the Tribunal made an incorrect assessment of the foreseeable future, by making a 'mere guess' and by relying on 'country information' that did not present a true picture. It is clear from its reasons for decision that the Tribunal did rely on 'country information' in making its assessment of the future, and that the conclusion that it reached was open to the Tribunal on the basis of the material it used. Both the choice and the assessment of the weight of such material were matters for the Tribunal. The Court cannot substitute its own view of the material, even if it had a different view from that reached by the Tribunal. 14 In their original application for a protection visa, the appellants placed before the Minister's delegate 'country information' of their own, from a variety of sources. The Tribunal appears to have had this material before it, by way of the file of the Department of Immigration and Multicultural and Indigenous Affairs. The appellants' submissions to this Court complained that the Tribunal did not comment on this material. The Tribunal was not obliged to comment on every item of material before it, to the extent of saying why it rejected a particular item, or attributed less weight to it than to another item. (Emphasis added.) See too VQAB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 104 at [26]. 54 The principle enunciated by the Full Court in NAHI applies equally here. It was a matter for the Tribunal to determine the weight it would give the competing material before it when determining the tolerance of the Australian community for any risk of future harm. The primary judge came to the same conclusion: see GNRK at [42]. 55 At [42] of GNRK, the primary judge also observed, in our view correctly, that the fact that the Tribunal did not refer specifically to all of the information and opinions in the Nutt Article did not support an inference that that material was not considered by it: see for example Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 at [31]. 56 When the Tribunal's reasons are considered as a whole, and having regard to the matters considered above, the finding made by the Tribunal that "any risk of similar conduct by the 'appellant' is unacceptable" did not so overstate the seriousness of the appellant's criminal conduct that no reasonable decision maker could have made the same finding on the same evidence. The Tribunal considered the material relevant to the question prescribed by para 11.1.1(2) of Direction No 79 (see [20] above) that was relied on both by the appellant and the Minister. It made its finding about the conduct and the risk of repeat conduct having regard to that material. Its finding did not lack a rational foundation, nor was it illogical or irrational. The primary judge did not err as alleged by the appellant. 57 Ground 2 is not made out.

Ground 3 58 By ground 3 the appellant contends that the primary judge ought to have found that the Tribunal failed to engage with the evidence he relied on and his submissions concerning the best interests of the child. This ground of appeal concerns particular (e) to the ground of review raised below (see [37] above).

Appellant's submissions 59 The appellant submitted that he differed, with respect, to the view that Dr Chan's evidence merely related to the possible, as opposed to probable or certain, impact of a visa refusal on the child, or that Dr Chan had merely been speaking in general terms about what the literature and his experience told him about the most severe consequences for a female child who grows up without a father. 60 The appellant said that in his report Dr Chan first referred to the literature and then unequivocally related this to the particular situation of his daughter stating that "it is undoubtedly that with father absence during her childhood, [the daughter] will become vulnerable to developing serious emotional, social, psychological and sexual problems in the future". The appellant also said that similarly in his evidence Dr Chan first referred to the literature and his experience and said that, from this, he would have a generalised ability "to expect what might happen". Dr Chan was able to project what impact the appellant's absence would have on the child, and while there may be variables caused by "multiple factors", such as biological make up, family structure and environment, there would always be some impact. 61 The appellant observed that Dr Chan was then taken to the specific, known circumstances of the child, including the unchallenged evidence of the appellant's role as a carer in her first year of life and their close physical and emotional contact, which would give the child an emotional memory of her father that would last her entire life. Dr Chan was also taken to the specific, known circumstances of the appellant's removal from Australia, which would involve complete physical absence from his child. Dr Chan considered that this could not be substituted by alternative means of communication and that such "father absence" would "quite negatively impact on the girl". 62 The appellant submitted that he continues to maintain that the severe consequences of his separation from his child were met by the Tribunal with "glib and shallow words" at [175]-[179] of its reasons. He said that there was no reference at all to Dr Chan's opinion in these paragraphs, although the Tribunal accepted the opinion, in a single sentence at [206] of its reasons, in relation to the impact on family members. The appellant continues to maintain that the Tribunal utterly failed to engage with Dr Chan's projection as to the likely effect of the Visa refusal on his child.

Consideration 63 The appellant's contention is that the Tribunal failed to engage with Dr Chan's report and that there was no proper reasoning process in relation to it, as opposed to a contention that the Tribunal failed to consider the report. In other words, it is a complaint about the quality of the Tribunal's engagement with, or consideration of, the report. 64 In that regard, and it seems as a manifestation of the failure to engage with Dr Chan's report, the appellant criticises the Tribunal's findings at [175]-[180] of its reasons (see [25] above) as glib and shallow. 65 In Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41; 96 ALJR 13 the High Court (Keane, Gordon, Edelman, Steward and Gleeson JJ) considered the operation of s 501CA of the Act. That section requires the Minister to provide relevant information to a person whose visa has been mandatorily cancelled and to invite representations as to why the cancellation decision should be revoked. At [13]-[14] the High Court said the following about the exercise of the discretionary power under s 501CA(4) to revoke a cancellation decision: 13 The relevant statutory scheme mandated by s 501CA of the Act comprises: the giving of relevant information to a person whose visa has been cancelled; inviting that person to make representations about why that cancellation decision should be revoked; the receipt of representations by the Minister made in accordance with that invitation; and, thereafter, the formation of a state of satisfaction, or not, by the Minister that the cancellation decision should be revoked. That scheme necessarily requires the Minister to consider and understand the representations received. What is "another reason" is a matter for the Minister. Under this scheme, Parliament has not, in any way, mandated or prescribed the reasons which might justify revocation, or not, of a cancellation decision in a given case. It follows that there may be few mandatorily relevant matters that the Minister must consider in applying s 501CA(4)(b)(ii). Thus, the Minister is not obliged to take account of any non-refoulement obligations, as expressed in the Act or otherwise, when determining whether there is another reason to revoke a cancellation decision where the materials "do not include, or the circumstances do not suggest, a non-refoulement claim". The power must otherwise be exercised reasonably and in good faith. 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. (Footnotes omitted; emphasis added.) 66 The appellant relies on Bettencourt v Minister for Immigration Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 172, which was decided before Viane. In that case Mr Bettencourt made representations for revocation of the Minister's decision made under s 501(3A) of the Act cancelling his visa. In doing so he made submissions about the effect of separation on Mr Bettencourt's two minor children in the event he was removed from Australia. The submissions relevantly contended that there was research demonstrating the "detrimental physical, emotional and psychological impact" the ongoing separation from a parent has on a young child and provided three quotations from public sources of expert information. The Minister was not satisfied that there was another reason why the cancellation decision should be revoked. Thus he concluded that his statutory power under s 501CA(4) of the Act to revoke that decision was not enlivened. 67 On appeal, a Full Court of this Court (Burley, Colvin and Jackson JJ) considered whether the primary judge erred in finding that the Minister had considered in a proper, genuine and realistic manner the adverse impact of long term separation from a parent on a child. As is the case here, the appeal concerned the quality and character of the consideration given by the Minister, for the purposes of that case, to "another reason" for revoking the cancellation decision, namely the long term harm of separation on the children: Bettencourt at [24]. 68 In Bettencourt the Full Court considered the statutory power to revoke a cancellation decision conferred by s 501CA(4) of the Act, setting out the characteristics of that statutory power including (at [27]) the requirement for a "real and genuine consideration of each … substantial or significant and clearly expressed claim". At [28] and [30] their Honours relevantly said: 28 In addition to the above matters, an understanding of what is required by s 501CA as to the nature and quality of consideration to be undertaken by the Minister in any particular case is informed by the subject matter of the power and takes its form and shape from the terms, scope and policy of the statute. The principle of legality also means that its nature and extent are not taken to interfere with fundamental values anchored in the common law unless the statute does so explicitly. Therefore, as stated by the Chief Justice (Markovic and Steward JJ agreeing) in Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; (2018) 267 FCR 628 at [3], the following general description pertains to the character and quality of consideration that must be undertaken by the Minister in forming the required state of satisfaction for the purposes of s 501CA(4): The consequences of these considerations are that where decisions might have devastating consequences visited upon people, the obligation of real consideration of the circumstances of the people affected must be approached confronting what is being done to people. This obligation and the expression of its performance is not a place for decisional checklists or formulaic expression. Mechanical formulaic expression and pre-digested shorthand expressions may hide a lack of the necessary reflection upon the whole consideration of the human consequences involved. Genuine consideration of the human consequences demands honest confrontation of what is being done to people. Such considerations do not detract from, indeed they reinforce, the recognition, in an assessment of legality, that those entrusted with such responsibility be given the freedom of lawful decision-making required by Parliament. … 30 What is required, is consideration of a kind that means that the Minister's state of satisfaction is formed after, at least, an evaluation of the persuasiveness (in the view of the Minister) of each reason of significance that is prominently put forward in the representations as a reason why the original decision to cancel the visa should be revoked. … 69 The Full Court allowed the appeal. Their Honours concluded, from a consideration of the Minister's reasons, that he had failed to form the requisite state of satisfaction by reference to the information before him about the likely seriousness of harm to the children if the visa cancellation was not revoked and thereby failed to form the requisite state of satisfaction. At [43]-[48], the Full Court set out its reasons for reaching that conclusion as follows: (1) there was no reference to the terminology used in the material in the submissions which described the seriousness of the harm to the children that was likely in the long term; (2) there was no finding by the Minister in the reasons concerning the quality or character of likely harm to the children; (3) the language used in the reasons focussed upon distress and upset to the children at the time of separation rather than ongoing harm; (4) the key conclusion by the Minister that the best interests of the children would be served by the revocation of the original decision was expressed blandly without any qualitative evaluation of a kind that would indicate that the Minister accepted that there would be serious harm to the children if the decision was not revoked; (5) in order for the Minister to form the required state of satisfaction it was necessary for the Minister not only to form a view as to whether the matters raised meant that the best interests of the children would be served by the revocation of the cancellation decision but to evaluate the significance of those matters. Only then would the representations as to the seriousness of the matters relied upon be considered in forming the required state of satisfaction. There was no indication in the language of the reasons that such an evaluation was undertaken by the Minister; and (6) if executive power is to be exercised with a conscious understanding that it will result in the long term separation of a child from a loving and supporting parent with likely long term harm to the children then, given the nature of the obligation to give reasons in the present case, it is to be expected that the seriousness of that consequence and its consideration would both be manifested expressly in the reasons of the Minister. 70 Dr Chan's evidence before the Tribunal comprised a written report prepared at the request of the appellant as well as his oral evidence. 71 In his written report, Dr Chan addressed the impact of visa refusal on the appellant's partner and his daughter. In relation to the daughter he said (as written): If [the appellant's] visa to enter Australia is denied, the impact on both his wife and daughter would be very significant. ... The impact of [the appellant's] visa rejection on [the daughter] would be very significant. The literature indicates that fathers' involvement in children development is very important. Father absence may affect girls' development more than boys', affecting their academic, emotional, social and psychological development as well as reducing their risks in negative adolescence and adult problems (Castetter, 2020; Mancini, 2010; McLanahan, Tach, & Schneider, 2013). Father absence in girls' life would lower their self-esteem, academic achievement; impair their emotional development, relationship formation; cause mental health problems; increase risking behaviours; and is related to teenage pregnancy, promiscuity, poverty, and rate of violence (Castetter, 2020; East, Jackson, & O'Brien, 2006; Mancini, 2010; McLanahan et al., 2013; Schwartz, 2003). It is undoubtedly that with father absence during her childhood, [the daughter] will become vulnerable to developing serious emotional, social, psychological and sexual problems in the future. 72 When examined at the hearing before the Tribunal by the appellant's counsel, Mr Poynder, about that part of his report Dr Chan's evidence included: Mr Poynder: I just wanted to ask you about your choice of those words, "it is anticipated", "would be"; how does that reflect your view on what the effect of visa refusal or cancellation might have on [the appellant's partner] and daughter? Dr Chan: As - as I was saying earlier, the information is partly based on his report and partly based on the literature, so - because I have been directly in the field and, you know, [the appellant's partner] and - you know, it's not (indistinct) her daughter anyways, but I didn't do the interview with [the appellant's partner]. So all the information is based on those sources, and therefore, we - we could have (indistinct) generalised from those information to - you know, to expect what might happen. … Mr Poynder: Now, I wanted to ask you, is that - is that observation dependent on the father having had an existing relationship with the child, or could it be that father absence might result in those detriments even if the father has never seen his daughter, a completely absent father? In other words, if the daughter grows up without having met her father, is it likely that those detriments would still apply? Dr Chan: Can you repeat the question again? … Mr Poynder: So if a daughter grows up without having ever met her father at all, is she likely to still suffer the detriments referred to in that sentence? Dr Chan: Yes, it is. Yes, it is. So (indistinct) in my clinical experiences, yes. Mr Poynder: And that would be, I would imagine, situations where a woman may become pregnant to a stranger, perhaps, and have the baby? Dr Chan: Yes. Mr Poynder: But the baby never meets the father? Dr Chan: Yes. Yes. The possibility is still there. … Mr Poynder: Your evidence is that the - those detriments would still apply if the - if a woman became pregnant to a stranger and the baby never met the father? Dr Chan: Yes. As I said, the - you know, the possibility is still there. To what extent and, you know, what type of impact might be - you know, might be, you know, based on the individual cases, but in general, yes, it does apply to some extent. Yes. … Mr Poynder: When you say the possibility and it depends on individual cases, is it possible to forecast that at an early stage in the child's life, or is it just how the child's personality develops and - and other factors that we just don't know about at an early stage? Dr Chan: To my understanding, and in what the literature says and my clinical experiences suggest, that the impact would be there, but how much the impact and to - you know, in how many areas of the - of the girl's development, would be subject to multiple factors, you know, throughout her life. You know - yes. Yes. So for example, you know, (indistinct) temperament, you know, (indistinct) to her… 73 Dr Chan was then asked about the appellant's daughter and for that purpose was provided by the appellant's counsel with some facts about her, including her age at the time, the period the appellant had spent with her and their contact after he was detained. The questioning centred around the extent that a bond or attachment is formed between a child and parent in circumstances where they spent the first year or so of the child's life together before being separated. Towards the end of that line of questioning the following exchange took place: Mr Poynder: Are you able to say, and you might not be able to say, but are you able to give us - how significant would you describe that attachment? Dr Chan: You know, again, it's based on the information I'm given and based on the literature and, you know, clinical experiences I have. It could be quite significant at that stage, when he - when she is attached to him. And she needs that secure organised and stable, you know, attachment to grow up. Mr Poynder: You're saying, Doctor, that it could be quite significant. You're not saying that it necessarily is, is that right? Dr Chan: Yes, that's right, because I'm given third party information. I didn't do the interview, I didn't observe that, I, you know, I did interview the mother as far as her - so based on the information I'm given, I could only say, yes, it could be quite significant. Yes. If I was able to interview him, as well as the mother, and saw the interactions between those three parties, then I could be able to provide more, you know - give stronger - more ideas. 74 When considered as whole it is evident that Dr Chan's evidence was, as the primary judge found, generalised. Having regard to the literature and his own experience, Dr Chan expressed a view about the potential impact on a female child of growing up without a father. Dr Chan did not provide an opinion as to the likely consequences for the appellant's daughter of growing up without her father. He could not provide a tailored opinion given that he had never met the appellant's partner or his daughter and was, as he said, "given third party information". 75 That analysis of the effect of Dr Chan's evidence when considered as a whole is relevant to the way in which the Tribunal's finding about the impact of separation on the appellant's daughter is to be viewed. 76 In this case the Tribunal was exercising the power under s 501(1) of the Act which confers a discretion to refuse the grant of a visa where a person does not pass the character test as defined in s 501(6). In doing so it was, as we have already observed, bound by s 499(2A) of the Act to comply with Direction No 79, which was in force at the time. 77 While there are differences to the nature of the power conferred by s 501CA(4), on the one hand, and s 501(1), on the other, in both cases the decision maker may receive representations from the person who is affected by the decision as to why the power should be exercised in that person's favour. In those circumstances there is no reason why the High Court's reasoning in Viane would not equally apply to the consideration of any material relied on by a person who was subject to the exercise of the power under s 501(1) of the Act. If that is so then in exercising the power under s 501(1) of the Act a decision maker is required to consider and understand the representations made to it. 78 Here the Tribunal made its findings about the impact of separation on the appellant's daughter at [178] of its reasons. We pause to note that the Tribunal's findings at [175]-[177] and [179]-[180] concerned different considerations in relation to the best interests of the child and did not concern the impact of separation. The Tribunal made its findings in what may be described as somewhat bland or perhaps dispassionate terms. But, it recognised that the appellant's separation from his daughter would likely have an adverse impact on her, particularly in the absence of physical contact for which technology provides no present suitable substitute. The Tribunal gave the factor weight in favour of the appellant. 79 True it is that in expressing its view at [178] of its reasons and making those findings the Tribunal did not refer in any detail to Dr Chan's evidence. However, it does not follow that it overlooked or failed to engage with Dr Chan's report and his oral evidence. 80 A review of the Tribunal's reasons as a whole demonstrates that it was aware of Dr Chan's evidence: it provided a detailed summary of his report and the oral evidence he gave at the hearing at [39]-[47] and [71]-[83] of its reasons; and, in doing so, it identified those parts of Dr Chan's evidence that were relevant to the issues before it. In contrast, that sort of analysis of the available evidence was not present in the Minister's decision in Bettencourt. 81 In addition, the Tribunal's finding that separation would have an adverse impact on the daughter and that technology could not bridge the gap left by lack of physical contact reflects an appreciation, understanding and, indeed, acceptance of Dr Chan's evidence and the appellant's representation that separation from his daughter would have a significant adverse impact on her. 82 The Tribunal did not go so far as to conclude that separation would have "serious" adverse consequences. However, we do not think that means that the Tribunal failed to engage with Dr Chan's report, or to use the terminology of the Full Court in Bettencourt, to provide a "qualitative evaluation" of the harm. Rather, it is open to infer that, having considered Dr Chan's evidence, which, as is evident from the extracts set out above, was general in nature and, to the extent it concerned the appellant's daughter, based on third party information, the Tribunal tempered its finding having regard to that evidence. 83 The primary judge concluded that the Tribunal engaged with and fairly construed Dr Chan's evidence. There is no error in that conclusion.

conclusion 84 For those reasons the appeal should be dismissed. 85 As the appellant has been unsuccessful, he should pay the Minister's costs as agreed or taxed. 86 We will make orders accordingly. I certify that the preceding eighty-six (86) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Rangiah, Markovic and Snaden.

Migration Act 1958(Cth)s 501(1)

At a glance

Court

Decision date

Before

Source

Judgment (13 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (9)