Ground 1
31 By ground 1, the applicant contends that the Tribunal fell into jurisdictional error by failing to give appropriate weight to the Primary Consideration of the best interest of the minor child in Australia.
32 The applicant submitted that Direction 79 required the Tribunal to make a determination about whether cancellation is, or is not, in the best interests of the child by considering 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". The applicant submitted that, while the Tribunal purported to engage with this consideration at [72]-[79] of its Reasons, the discussion drew incorrect inferences from the evidence, and the Tribunal did not give the matter "proper, genuine and realistic consideration" or engage in an "active intellectual process" (referring to Singh v Minister for Home Affairs (2019) 267 FCR 200 at [30], citing Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352 at [45]). In support of that submission, the applicant relied on the following four matters.
33 First, the Tribunal stated at [79] that "in spite of much of his criminal conduct in Australia being when [his son] was an infant and then a young boy, Mr Guruge has more recently made endeavours to support his son and re-establish some form of contact, both when he was in Sri Lanka and after he returned to Australia". The applicant argued that this statement infers that there has been a period of time that he has not made endeavours to support his son and maintain contact. However, the evidence before the Tribunal showed that the applicant has at all times been committed to supporting his son. The applicant's family provided financial support for his son and the applicant made daily international phone calls to his son when the applicant lived in Sri Lanka.
34 Second, while the Tribunal concluded that the best interests of the applicant's son weighed in favour of revoking the mandatory cancellation of the visa, the Tribunal stated at [79] that "that weight is tempered significantly by the long periods when the Applicant has not played a role in the life of his son". The applicant argued that the only reason that he had not played a role in the life of his son is because of an intervention order that is in place against him on the application of his estranged wife, EW. The applicant argued that it is implicit in paragraph 13.2(4)(a) of Direction 79 that periods of absence between a non-citizen and child are only relevant if the absence is voluntary. The applicant's separation from his son was involuntary, caused by the intervention order. The applicant argued that there are no periods in which he has not endeavoured to play a role in the life of his son, and the Tribunal erred in tempering the weight of this consideration.
35 Third, the applicant argued that the Tribunal failed to take into account the following further considerations:
(a) The applicant has remained in Australia in immigration detention, at this time for a period of 5 months, and previously in 2013 for a further 6 months, in the hope of being involved in his son's life.
(b) If the applicant is removed from Australia, the chances of his son being able to engage with him at a meaningful level will be remote, especially where the mother, EW, has shown that she is unwilling to allow contact and has not allowed contact for a significant length of time. The applicant's son is of Sri Lankan heritage and removing the applicant from Australia will deprive the son of an ongoing connection to his culture which is not in the son's best interest.
(c) The applicant's family are in a position to continue providing ongoing financial support to the son, in aid of his being given the best opportunities, especially with regards to education. Were the applicant removed from Australia, and given EW's ongoing position of not allowing any contact, the chances of the son benefiting from the family's concern for his education will be remote which is not in the son's best interests.
36 Fourth, the applicant argued that the Tribunal erred at [106] where it stated that "the contact that Mr Guruge is currently permitted by the Court to have with KS, namely through telephone and electronic means, is also available to him from Sri Lanka". The applicant submitted that while the current intervention order allowed the applicant to have contact with his son by telephone and electronic means, there is currently no order in place to compel the applicant's estranged wife, EW, to allow the applicant's son to have contact with his father. Therefore, the Tribunal erred in finding that telephone and electronic means of communication with his son would be available to the applicant once removed from Australia.
37 To a considerable extent, the applicant's submissions invited the Court to engage in a review of the merits of the Tribunal's decision, which is impermissible. As noted earlier, under s 476A the jurisdiction of the Court to review decisions of the Tribunal is the same as the jurisdiction of the High Court under s 75(v) of the Constitution. As such, review by the Court is confined to jurisdictional error: Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476. To constitute jurisdictional error, the error must comprise a failure to comply with a statutory precondition which must exist in order for the decision-maker to embark on the decision-making process or a failure to comply with a condition which the statute expressly or impliedly requires to be observed in the decision-making process, and the error must ordinarily be material in the sense that compliance with the condition could have resulted in the making of a different decision: Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 (Hossain) at [23], [31] per Kiefel CJ and Gageler and Keane JJ; Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at [45] per Bell, Gageler and Keane JJ. Such errors can include identifying a wrong issue, asking the wrong question, ignoring relevant material, relying on irrelevant material, failing to observe an applicable requirement of procedural fairness or, in certain circumstances, making an erroneous factual finding: Craig v South Australia (1995) 184 CLR 163 at 179; Kirk v Industrial Court (NSW) (2010) 239 CLR 531 at [67]; Hossain at [70] per Edelman J.
38 In so far as the applicant challenges factual findings made by the Tribunal, it can be accepted that factual findings are not immune from judicial review. However, to establish jurisdictional error it is ordinarily necessary to show that the findings were legally unreasonable, for example by being based on illogical or irrational findings or inferences of fact: Minister for Immigration v Eshetu (1999) 197 CLR 611 at 626 per Gleeson CJ and McHugh J and at 657 per Gummow J; Minister for Immigration and Multicultural Affairs; ex parte Applicant S20/2002 [2003] HCA 30; 198 ALR 59 at [5] per Gleeson CJ; Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; 207 ALR 12 at [37]-[38] per Gummow and Hayne JJ; Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 (SZMDS). It must be firmly kept in mind that judicial review does not involve mere merits review; it is not enough for the question of fact to be one on which reasonable minds may differ: SZMDS at [96] and [130] per Crennan and Bell JJ; ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109 at [44].
39 It is also necessary to keep in mind that the Tribunal is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications and, as such, reasons should not be scrutinised "minutely and finely with an eye keenly attuned to the perception of error": see Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 at [46]-[47]; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ. It is also necessary to read the Tribunal's reasons in light of the whole case as it was before the Tribunal, so that the materiality of the issue about which complaint is made can be assessed in the context in which the matter was conducted in the Tribunal: Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 at [1] per Gleeson CJ.
40 In relation to the applicant's first submissions concerning the Tribunal's Reasons at [79], in my view too much emphasis is sought to be placed on the word "recently". As submitted by the Minister, the Tribunal expressly took into account positive aspects of the applicant's relationship with his son over the course of KS's life (at [73]-[74]) and, in the passage with which the applicant takes issue, the Tribunal specifically referred to the period in Sri Lanka, which was reasonably early in KS's life. The Tribunal also expressly took into account the financial support given by the Applicant's family to EW for KS (at [78]).
41 In relation to the applicant's second submission concerning the effect of the intervention order, I do not accept the contention that paragraph 13.2(4)(a) of Direction 79 is directed only to periods of absence between a non-citizen and child that are voluntary. The paragraph directs the decision-maker to have regard "the nature and duration of the relationship between the child and the non-citizen" and directs that less weight should generally be given where "there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact)". Thus, the Tribunal is required to consider the relationship between non-citizen and child taking into account whether there has been less contact, including by reason of a court order.
42 In relation to the applicant's third submission, that the Tribunal failed to have regard to certain matters, the applicant did not contend that those matters were expressly raised before the Tribunal. Rather, the applicant relied on the principles stated in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 (at [58]) that the Tribunal is required to consider a substantial, clearly articulated argument, including an unarticulated claim that is raised "squarely" on the material before the Tribunal. I do not accept that the Tribunal erred by ignoring the three matters referred to by the applicant. As to the first matter, the Tribunal was conscious that the applicant wished to remain in Australia in order to be close to, and support, his son (see, for example, at [41], [47], [53] and [106]). As to the second matter, it is an obvious fact that if the applicant were to be removed from Australia, his contact with his son would be remote. The Tribunal recognised that contact would need to be by telephone or other electronic means (at [106]). In circumstances where no submissions were made to the Tribunal concerning KS's loss of connection to his father's culture, I do not accept that the Tribunal erred in failing to address that matter. As to the third matter, the Tribunal was aware that the applicant's family has provided financial support to EW and KS in the past (at [41] and [74]). However, in circumstances where no evidence or submissions were directed to the prospect of future financial support for KS, I do not accept that the Tribunal erred in failing to address that matter.
43 In relation to the applicant's fourth submission, I do not accept that the Tribunal's factual finding was erroneous, far less that it constituted jurisdictional error. As submitted by the Minister, the terms of the intervention order made on 5 October 2020 by the Magistrates' Court of Victoria were that the applicant must not "contact or communicate with a protection person [namely EW and KS] by any means unless by phone or facetime to speak to [KS] if he so wishes". It was open to the Tribunal to find that the applicant would be able to communicate with his son from Sri Lanka by telephone or other electronic means.
44 For those reasons, I do not accept that the Tribunal fell into jurisdictional error by failing to give appropriate weight to the primary consideration of the best interest of the minor child in Australia, or that the Tribunal drew incorrect inferences from the evidence or did not give that consideration proper, genuine and realistic consideration such as to involve jurisdictional error. I therefore dismiss ground 1.