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[2022] FCAFC 188
Federal Court of Australia (Full Court)
2022-11-29
Abraham JJ
Original judgment source is linked above.
REASONS FOR JUDGMENT 1 INTRODUCTION [1] 2 DIRECTION 90 [7] 3 THE REASONS OF THE PRIMARY JUDGE [15] 4 THE APPEAL [16] 4.1 The grounds [16] 4.2 The appellant's submissions [17] 4.3 The reasons of the Tribunal [19] 4.4 Consideration [28]
4.1 The grounds 16 The ground of appeal relied upon is as follows: The Court below erred at [43] to [51] in not holding that the Tribunal had failed to properly consider the best interests of the child and therefore fallen into jurisdictional error including by: (i) Holding at [46] that, "the Tribunal's reasons cannot be read fairly as having accorded less weight overall to the primary consideration of the best interests of minor children by reason of the impugned sentence in [132]" when such a conclusion was axiomatic. (ii) Failing to determine and/or give adequate reasons in respect of the Appellant's contention that the Tribunal had misconstrued paragraph 8.3(4) of Ministerial Direction 90. (iii) Overlooking that the Appellant had advanced a contention that paragraph 8.3(4)(a) of Ministerial Direction 90 was in a particular respect unlawful and failing therefore to deal with that matter. (iv) Failing to determine and/or give adequate reasons in respect of the Appellant's contention that the way in which the best interests of the child had been considered involved an inflexible application of policy. (v) Failing to determine and/or give adequate reasons in respect of the Appellant's contention that the way in which the best interests of the child had been considered involved a failure to intellectually engage with the actual best interests of the child as posed by the facts of the matter including by failing to consider whether the fact of separation by imprisonment required greater weight to be given to the best interests of the child in light of that separation having occurred.
4.2 The appellant's submissions 17 The appellant submits that when considering the primary factor of the "best interests of minor children affected by the decision" the Tribunal erred in finding at [132] (set out in the primary judge's reasons at [46] above) that "[l]ess weight is therefore given to this primary consideration". He submits that the approach of affording less weight on account of "long periods of absence and limited meaningful contact" is derived from para 8.3(4) of Direction 90. He submits that the reasoning of Tribunal reflected jurisdictional error for the following reasons: (a) The Tribunal misconstrued cl 8.3(4) of Ministerial Direction 90. Properly construed, it had no application to this matter, where the children and the appellant were separated only by the fact of imprisonment, and the parental relationship, viewed prospectively, would continue fully upon release if the appellant was allowed to remain in Australia. (b) [Direction 90] does not direct decision makers that the mere fact of separation by imprisonment generally reduces the weight to be given to the best interests of the child. Such a direction would be arbitrary, cruel and inconsistent with the very concept of the best interests of the child. It is not the intent, nor the terms, of the Direction. (c) Considering the best interests of the child involves a prospective analysis, based on the available evidence which will of course involve established historical facts. However, to automatically reduce the weight to be given because of an historical fact, without properly engaging in a prospective assessment of what the best interests of the child mean and require, will generally involve an incorrect approach. (d) In the alternative, cl 8.3(4) of [Direction 90] is invalid as [sic] inconsistent with the proper breadth of the discretion created by s 501CA(4) of the Act. (e) In the alternative, the Tribunal erred by inflexibly applying a policy and not actually engaging with what the best interests of the children meant in the circumstances. (f) Further, the Tribunal erred [in] not considering a matter that it was required to consider in order to properly engage with the consideration, being whether the fact of separation by imprisonment meant more weight should be accorded to the best interests of the child. 18 In relation to materiality, the appellant submits that the primary judge did not expressly find that the purported errors identified in the particulars to the ground relied upon below were incapable of materially affecting the decision. He submits that it cannot be said that the errors made did not deprive the appellant of the possibility of a different decision. The best interests of the children was objectively a most compelling factor. Taken overall, the application to revoke the cancellation was one which had real prospects, as one of the primary considerations and two of the other considerations were found to weigh in favour of revocation. He submits the fact that the Tribunal found that the best interests of the children were found to weigh in favour of revocation does not render the error immaterial. In this regard the appellant cited Degning v Minister for Home Affairs [2019] FCAFC 67; 270 FCR 451 where the majority (Allsop CJ, Collier J agreeing) found that despite the finding that the risk of reoffending was low, the error was a critical issue, and the error was directly relevant to it (at [37]).
4.3 The reasons of the Tribunal 19 The reasons of the Tribunal were lengthy and detailed. For present purposes it is sufficient to summarise them in relatively short form. 20 After referring to some introductory factual matters and setting out the legislative framework, it reviewed the evidence given before it. It referred to the appellant's evidence that his family in Australia is "very close" and that he spoke with affection about his children, noting his evidence that he played a continual parental role for his children despite his imprisonment during the past seven years ([26], [27]). It reviewed in detail the appellant's history of drug use and offending ([31]-[33]) and the evidence concerning his risk of recidivism. After summarising other aspects of the evidence it turned to give consideration to it by reference to the primary and other considerations set out in Direction 90. 21 In relation to its consideration of the nature and seriousness of the conduct, it concluded at [77] that the totality of the appellant's offending and other misconduct to be "extremely serious". In considering the risk to the Australian community should the appellant commit further offences or engage in other serious conduct as follows (emphasis removed): 96. The Tribunal considers the Applicant's recidivism risk is in the 'low to medium' range. The extremely serious nature of his past offending and significant risks of harm from any repeat, are such that a low to medium risk of recidivism is unacceptable. This primary consideration weighs very substantially against revocation. 22 In relation to the question of family violence under para 8.2(1), the Tribunal reviewed the evidence, found that his past conduct towards his former partner KR fell within the meaning of family violence and found that his conduct against her enabled it to conclude that this primary consideration weighed "moderately against" revocation (at [126]). 23 In considering the best interests of minor children in Australia, the Tribunal set out para 8.3(4) in full. It noted that the appellant and his current partner, HP, have two infant children, and that he has another older child from a previous relationship with KR. It found that the appellant has maintained a close bond and parenting role with his children through pre-COVID visits, regular audio-visual link calls and through updates from HP. He had less frequent contact with his eldest child ([129]). The Tribunal accepted that the prison records include frequent visits and calls with his family and that prison staff recorded observations of positive interactions with the children ([130]) and with his nieces and nephews. 24 The Tribunal made the following findings: 132. By virtue of his imprisonment during the last seven years, there have been long periods of absence and limited meaningful contact between the Applicant and the children whose interests he invokes. HP referred to being forced to do 'two people's roles' during the Applicant's absence. Less weight is therefore given to this primary consideration. The Tribunal accepts, however, that the Applicant and his family members have done their best to maintain a close relationship between the Applicant, his three biological children, and with SH's children. 133. Based on the evidence of KR, HP, and others, the relationship with the Applicant's eldest child has become less prominent after that child started living with his mother and her family, commenced work, and is now approaching adulthood. There is no evidence from this child who turns 18 relatively soon, but KR's evidence persuasively conveys that the emotional hardship experienced by this child following the Applicant's imprisonment would only be exacerbated in the event of an adverse decision. 134. The interests of the Applicant's two younger children can be differentiated from those of their older half-sibling. The Applicant has done his best to maintain a close and supportive parental role in their lives. The Tribunal is satisfied that absent a repeat of his past offending, the Applicant is likely to play a positive parental role if released. 135. The Applicant and HP would understandably prefer to remain in Australia with their children, although they are yet to decide what HP and the children might do in the event of an adverse decision. They both point to significant disruption to enable a life together in the United Kingdom. There are likely to be significant adverse effects on the Applicant's youngest children in the event of non-revocation, irrespective of the choices HP and the Applicant make. If HP decided to accompany the Applicant to the United Kingdom, this would uproot the children from their established life in Australia, including schooling plans and other opportunities. The family would need to re-establish themselves in a foreign country, although the United Kingdom is comparable in many respects with Australia. What is not comparable, however, is the absence of the same level of emotional and practical support available to the Applicant and his family in Australia, business opportunities for HP, and the employment network established by the Applicant. The children would be separated from grandparents, their older half-brother, and other relatives and friends. 136. If the Applicant and HP decide she and the children will remain in Australia, this would continue the Applicant's almost decade-long separation from his family and result in considerable emotional distress. There is no evidence about the Applicant's finances, but it would take time for him to re-establish himself in the United Kingdom and earn an income. Contact with his family in Australia would continue via telephone, video calls, and infrequent visits. This is a poor substitute for the close and supportive family environment in Australia they envisaged at the conclusion of the Applicant's prison sentence. Given the stress experienced by HP since the Applicant's incarceration, denial of her expectation that he will return to help and support her, [sic] may cause great emotional distress with concomitant impacts on her ability to continue caring for the children alone. 137. In terms of nieces and nephews, the Tribunal accepts the Applicant has developed a close relationship with SH's eldest child and some relationship with the younger children born during his imprisonment. It is accepted he aspires to play a more prominent avuncular role. It is also evident the children from the Applicant's and SH's families enjoy regular interaction and a close relationship. Less weight is placed on the Applicant's relationships with SH's children, however, given that others perform the parental role. 138. The Tribunal accepts that revocation is in the best interests of the Applicant's biological children and his nieces and nephews. This primary consideration carries very substantial weight in favour of revocation irrespective of the decision the Applicant and HP might make in the event of an adverse decision. 25 In relation to the primary consideration of the expectations of the Australian community, the Tribunal found that this consideration "weighs very substantially against revocation" ([147]). 26 Turning to the other considerations, the Tribunal concluded that the impediments facing the appellant were he to be returned to the United Kingdom to be "significant, but not insurmountable" ([155]) and considered that this weighed moderately in favour of revocation. It considered that the consideration of impact on victims should also have this weighting ([160]). 27 In its conclusion, the Tribunal relevantly said: 171. Because of the combined effects of ss 501(6)(a) and 501(7)(c) of the Act, the Applicant does not pass the character test. In determining whether there is 'another reason' why the visa cancellation should be revoked, the Tribunal has applied the Direction to the specific circumstances of this case. The Tribunal sees no reason to depart from the guidance in the Direction that greater weight 'should generally be given' to the primary considerations than other considerations. … 173. Approaching the end of his seventh year in prison, it is commendable the Applicant has not committed any serious misconduct or relapsed into alcohol or illicit drug use. Despite his circumstances, he has also managed to stay meaningfully engaged as a parent and uncle. Revocation is clearly in the best interests of the minor children in his life. 174. Of the other considerations in this matter, the Applicant is confronted by significant but not insoluble impediments if returned to the United Kingdom. This would separate him, and potentially HP and the children, from their principal sources of support in Australia. 175. Having weighed all relevant considerations individually and cumulatively, the Tribunal finds there is not another reason why the mandatory cancellation of the Applicant's visa should be revoked. That is because the primary considerations 'Protection of the Australian community,' 'Family violence committed by the non-citizen', and 'Expectations of the Australian community,' considerably outweigh the combined weight to be given to the primary consideration 'Best interests of minor children in Australia' and the other countervailing considerations.
4.4 Consideration 28 The appellant contends that the Tribunal misconstrued para 8.3(4)(a) in circumstances where he had been incarcerated for 7 years before the decision and so could not avoid a long period of absence from his children. He submits that para 8.3(4)(a) cannot operate in this way, which would be arbitrary, cruel and inconsistent with the very concept of the "best interests" of the child. 29 Paragraph 8.3(4) provides a list of factors that must be considered "where relevant" in the assessment of primary consideration (3). It is for the decision maker to determine relevance. Factors (a) to (h) identify the considerations, each of which, if considered relevant, may be taken into account and afforded weight. The obligation placed on the decision maker is to "consider", meaning that it must apply an active intellectual process to each matter. In Tickner v Chapman [1995] FCA 987; 57 FCR 451 this was explained at 476-477 (Burchett J) and at 495, where Kiefel J, as the Chief Justice then was, said: To "consider" is a word having a definite meaning in the judicial context. The intellectual process preceding the decision of which s 10(1)(c) speaks is not different. It requires that the Minister have regard to what is said in the representations, to bring his mind to bear upon the facts stated in them and the arguments or opinions put forward and to appreciate who is making them. From that point the Minister might sift them, attributing whatever weight or persuasive quality is thought appropriate. However, the Minister is required to know what they say… 30 In para 8.3(4)(a) the factor is the "nature and duration of the relationship between the child and the non-citizen". It provides that "[l]ess weight should generally be given where … there have been long periods of absence, or limited meaningful contact …". The word "generally" indicates that the decision maker is not obliged to apply less weight, but should consider whether or not to do so. 31 Nothing in the language used in para 8.3(4)(a) suggests that the decision maker ought not to take into account periods of absence or limited meaningful contact arising from periods during which an applicant is incarcerated. To the extent that the appellant submits otherwise, that submission must be rejected. 32 Nor do we accept that the consequence of this construction of para 8.3(4)(a) must be that the paragraph is ultra vires and unlawful. Section 501CA(4)(b) confers an obligation upon the Minister (and, by extension, the Minister's delegate pursuant to s 501(1) and the Tribunal upon review under s 500) to reach a state of satisfaction "that there is another reason why the original decision should be revoked"; Ali v Minister for Home Affairs [2020] FCAFC 109; 278 FCR 627 at [109] (Collier, Reeves and Derrington JJ). Paragraph 8.3(4)(b) does not serve to fetter the manner in which the decision maker reaches that state, but acts a guide to decision-makers in exercising the power conferred upon them, see FYBR v Minister for Home Affairs [2019] FCAFC 185; 272 FCR 454 at [63]-[64] (Charlesworth J, Stewart J agreeing). We see no inconsistency between this aspect of Direction 90 and the operation of s 501CA(4)(b) of the Act. 33 The appellant next submits that the Tribunal at [132] failed to give consideration to the application of para 8.3(4)(a) by "automatically" reducing the weight to be given the best interests of the children by reference to an historical fact (presumably, we interpolate, his period of incarceration and inability to have meaningful contact) without properly engaging in a prospective assessment of the best interests of his children. This argument cannot survive the rejection of the construction argument to which we have referred. The general guidance provided by para 8.3(4)(a) as to the weight to be given to such matters plainly requires a decision maker to consider such historical facts and indicates that, when appropriate, weight may be placed on them. It is apparent from the seven other factors identified in para 8.3(4) that additional "prospective" matters are also taken into account in considering the question overall. It is clear that in [133]-[137] of its reasons the Tribunal considered, as the primary judge observed at [48]-[50], such of the other factors identified in para 8.3(4) as it considered to be relevant. 34 We accept that there is some awkwardness in the language of [132] where it says "[l]ess weight is therefore given to this primary consideration". In his written submissions the appellant accepts that this sentence must be taken to be a reference to less weight in the context of para 8.3(4)(a), rather than primary consideration (3) more generally. The appellant criticises what it terms the "axiomatic" diminution of weight given to that factor, and thereby primary consideration (3) more generally. He points to a submission that he made to the Tribunal to the effect that the Tribunal is not bound by para 8.3(4)(a) to give less weight to this consideration simply because the appellant had limited meaningful contact with his two younger children, given his substantial period of imprisonment. He submits that the Tribunal failed to engage with that submission and proceeded in [132] to apply para 8.3(4)(a) "automatically" or "inflexibly" to apply the sub-paragraph. 35 We do not consider that this argument has merit. 36 We agree with the conclusion of the primary judge at [49] that the finding of the Tribunal at [132] must be understood to be a reference to para 8.3(4)(a). The Tribunal had no obligation to give reasons why it did not consider it appropriate to depart from the guidance provided by that sub-paragraph. Its obligation was to state the findings that it made and the reasons for the decision; Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 at [68] (McHugh, Gummow and Hayne JJ), [235] (Callinan J). This did not require it to state reasons for every finding of fact made; Yusuf at [235]. Nor was it required to articulate every detail of its consideration of the weighing process; Pallas v Minister for Home Affairs [2019] FCAFC 149 at [45] (Derrington J, Greenwood and Logan JJ agreeing). 37 The reasons of the Tribunal demonstrate that it was aware of its statutory task and the terms of para 8.3(4), which it had recited at [127]-[128]. It was also aware that it was not obliged slavishly to apply para 8.3(4)(a), a point that is apparent from its reasons at [21]-[22] where it specifically acknowledged the weighting process permitted within Direction 90 by reference to paragraphs 7(2) and 7(3), and also the language of its reasons at [171], which is set out above. We accordingly do not draw an inference from its statement at [132], that by the impugned sentence the Tribunal considered that it had no choice but to apply para 8.3(4)(a) in its terms, that it had automatically applied its terms without further consideration, or that it did not consider that it was open to it to give a different weight to the fact of the appellant's separation from his children or the lesser availability of meaningful contact. 38 We also reject the submission advanced by the appellant to the effect that the Tribunal failed to consider that the fact of separation by imprisonment meant that more weight should be accorded to the best interests of the child. A decision under s 501CA(4) is broad and evaluative. One of the matters which engages the power to revoke a prior cancellation is that the person given the invitation under s 501CA(3) by the Minister has made representations to the Minister. The representations must be considered by the Minister and in that sense are a mandatory relevant consideration of the type contemplated in Tickner to which we have referred. However, they are mandatory relevant considerations as a whole, and not as to the individual statements contained in the representations; Minister for Home Affairs v Buadromo [2018] FCAFC 151; 267 FCR 320 at [41] (Besanko, Barker and Bromwich JJ); Goundar v Minister for Immigration and Border Protection [2016] FCA 1203; 160 ALR 107 at [55]-[56] (Robertson J). As the Full Court in Buadromo observed, "a finding of fact may not be required if the claim or issue is irrelevant or if it is subsumed within a claim or issue of greater generality"; at [46]. In the present case, there is no cogent reason why the Tribunal ought to have given any additional or separate consideration to the question of whether more weight should be given to the best interests of affected children on account of the fact that the appellant and the affected children had been separated as a consequence of the appellant's incarceration. 39 Finally, for completeness we note that in any event the appellant fails at the threshold of materiality within MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; 390 ALR 590 at [38]-[39] (Kiefel CJ, Gageler, Keane and Gleeson JJ). 40 In the present case, the Tribunal concluded that the totality of the appellant's offending and other misconduct was "extremely serious" ([77]) and that the risk to the Australian community should he re-offend weighed "very substantially" against revocation ([96]). It found that the family violence consideration weighed "moderately" against revocation ([126]) and that the expectations of the Australian community weighted "very substantially" against revocation ([147]). In the context of the primary consideration of the best interests of the appellant's children, it concluded that this carried "very substantial weight in favour of revocation" ([138]). 41 Turning to primary consideration (3), it is apparent from the reasoning in [132]-[137] that, notwithstanding the lesser weight afforded by reason of the separation and limited meaningful conduct in [132], the Tribunal's view as to the strength of the best interests of the children in favour of revocation was very strongly buttressed by the other factors identified. The Tribunal found that other considerations, such as the "significant but not insurmountable" impediments confronting the appellant upon his return to the United Kingdom ([155]) and the impact on victims ([160]), weighed "moderately" in favour of revocation. The strength, nature and duration of his ties to Australia were also found to weigh "very substantially" in favour of revocation ([169]). 42 After identifying all of these factors, in its conclusion at [175] the Tribunal considered that the protection of the Australian community, family violence committed by the appellant and expectations of the community "considerably outweigh[ed] the combined weight" to be given to the best interests of minor children and the other countervailing considerations. 43 In our view, the appellant has not discharged the onus on it to establish, on the assumption that the Tribunal erred in its assessment at [132] by affording lesser weight to the best interests of minor children by reference to para 8.3(1)(a), that he was denied the realistic possibility that a different decision could have been made had there been no error; MZAPC at [39]. 44 Accordingly, for the reasons set out above, the appeal must be dismissed. The appellant must pay the first respondent's costs of the appeal. I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Burley, Thomas and Abraham.
Healey
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs