JFPT v Minister for Immigration and Multicultural Affairs [2025] FCA 1245

(a) In a document entitled "Personal Circumstances Form", completed by the applicant on 24 May 2020, on one page he described himself as JoDG's "stepfather", but on another listed JoDG as his "son".

(b) In a Statement of Facts, Issues and Contentions filed on behalf of the applicant, and dated 29 July 2024:

(i) JoDG was described as the applicant's "son" (rather than "stepson").

(ii) XD was described as the applicant's "grandson" (rather than "step-grandson").

(iii) LS and IS were each described as the applicant's "nephew" (rather than "step-grandsons"), although the applicant was described as their "step-grandfather".

(c) In a personal statement dated 29 July 2024, the applicant referred to both JuDG and JoDG as his "sons", while referring to DS as his stepson. He referred to each of LA, IA and XD as his "grandchildren" (AP had not been born at the time this statement was prepared). He referred to LS and IS as "my young nephews".

(d) In a supplementary statement dated 30 September 2024, the applicant spoke of the recent birth of AP, to whom he referred as his "granddaughter".

1. I have dwelt at what might seem unusual length on these nuances of nomenclature because they are relevant to the applicant's first and second grounds of review. Before turning to describe those grounds, however, it is convenient to set out the critical parts of the Tribunal's reasoning concerning minor children:

[51] The applicant is a biological grandfather to three children who would miss him greatly if he left Australia, and the applicant feels the same way. These are all meaningful relationships. Two of the children do not have a mother and are living with the maternal grandmother at the present time, and so they have a special need for family support. This was made clear in the oral evidence given by their maternal grandmother. She is feeling the strain of looking after the grandchildren alone. There is also a newborn child as well, a fourth biological grandchild.

[52] I accept that the applicant is also a step-grandfather in connection with children belonging to his partner's family, and I accept they would miss him greatly if he did not stay in Australia, and the same is true for the applicant. I accept that the applicant has maintained a positive relationship with his three older biological grandchildren, and with his step-grandchildren, and wishes very much to play a meaningful role in the newborn grandchild's life. He has maintained contact with them from detention as best he can.

...

[59] I must take into account the best interests of minor children in Australia. In this regard, I must take into account the interests of the grandchildren and step-grandchildren with whom the applicant has built a substantial relationship. There is also a newborn grandchild, as I have said. Children benefit substantially from the interest and guidance of grandparents. I take into account that the relationships are not parental as I am required to under the Direction, and so far as the newborn infant is concerned, it is true to say that the relationship can only be properly described as nascent, rather than as an existing one of any substance; but nevertheless it remains the case that the applicant has a strong tie to the minor children and their interests would be substantially affected if he were to be deported. I note again that some grandchildren are presently living with their maternal grandmother and would benefit particularly from wider family support, including the applicant's.

[60] I accept the submissions that appear in this regard in the applicant's Statement of Facts, Issues and Contentions.

1. In the final section of its reasons, the Tribunal explained how it had weighed all of the relevant considerations.
2. The Tribunal specifically identified that sending the applicant back to Portugal would have a severe impact on both the applicant and his family. It noted that "the applicant would be effectively severed from his family in Australia so far as one-on-one contact is concerned" (at [69]). The Tribunal went on to say:

[70] It [i.e. removal] would also be an extremely severe burden for his family to bear. Family connections give meaning to life, and the applicant's participation in his family has provided a substantial degree of stability for them. I accept that the applicant provides emotional stability and support to a great number of people. ...

[71] There is no doubt that a decision to affirm would effectively tear apart this family as a cohesive unit. That would be a direct consequence of affirming the decision under review. I need to face that fact squarely, and I do so. ...

...

[79] I accept also that it is vital that particular attention be paid to the individual circumstances of a case. I am very conscious of the applicant's age, his unfamiliarity with Portugal, the role he plays in his family (both immediate and extended), and the real impact a decision to affirm would have upon him and his family. ...

1. The first and second grounds of review were dealt with together. In written submissions, the applicant articulated the substance of those grounds of review as follows:

First, that the Tribunal breached s 499(2A) of the Act and fell into jurisdictional error by failing to comply with [5.2](7), [7](3) and [8.4] of [Direction No. 110]. The Tribunal was required to make a determination about whether non-revocation was, or was not, in the best interests of his minor grandchildren and step-grandchildren in the manner prescribed by [8.4]. It was also required to take that primary consideration into account and "weigh" it against further primary and other considerations in reaching its decision: [5.2(7) and [7](3) of the Direction. In the applicant's case, the Tribunal misidentified [the applicant's] grandchildren and step-grandchildren and their relationship to the applicant, it failed to undertake an individualised assessment of each of their interests (as required by [8.4](3)), it failed to identify what their interests actually were, and it failed to consider the likely effect that any separation would have, taking into account the ability of the applicant and the children to maintain contact in other ways (as required by [8.4](4)(e)). It also failed to refer to the "best interests" consideration expressly in the part of its reasons where it weighed the primary and other considerations that were required to be taken into account and weighed under the Direction.

Secondly, the Tribunal failed to give proper, genuine and realistic consideration to the applicant's contentions regarding the impact of the cancellation decision on his grandchildren and step-grandchildren. In this regard, the Tribunal failed to advert to, consider and understand substantial and clearly articulated arguments concerning the impacts that a non-revocation decision would have on the applicant's two biological grandchildren and his step-grandchildren. It thereby erred in its application of the Direction and failed to exercise its review jurisdiction under s 501CA.

1. In oral argument, these grounds were said to involve four categories of error. I will deal with each in turn.

1. First, it was submitted that the Tribunal had erred in failing to give individual consideration to the interests of each child (to the extent that they differed). This error was said to be manifested in two ways:

(a) First, it was said to be revealed by the Tribunal's errors in the identification of some of the applicant's grandchildren (in that they were described as biological grandchildren, when they were in fact step-grandchildren). The failure to accurately identify the relationship between the applicant and an affected minor child was said to be necessarily inconsistent with the required individualised assessment of the interests of the misidentified children. The proposition, I think, was to the effect that if a decision-maker does not correctly determine who the child is in relation to a non-citizen, then it will be impossible to determine what the child's interests are and how they will be affected by the decision. Relatedly, it was submitted that making a finding that a particular child was a biological grandchild in the face of evidence that they were not, in and of itself demonstrates an absence of the required individualised consideration of that child's interests. The error was said to show, in effect, that the Tribunal had not taken sufficient care to examine the actual circumstances of each child.

(b) Secondly, the applicant said that the Tribunal identified the interests of the minor children in a generalised way, that did not deal with the individualised evidence and submissions in relation to each. In other words, it was submitted that the Tribunal failed to consider the interests of each affected minor child, because it in effect treated them as a homogenous collective. In doing so, it overlooked the particular interests of different children, and thus the different ways in which their interests would be affected by the decision.

1. I do not accept that the Tribunal incorrectly identified any of the applicant's grandchildren:

(a) The Tribunal consistently and correctly identified LA and IA as the applicant's biological grandchildren.

(b) While the Tribunal also referred to XD and AP as biological grandchildren, that description needs to be viewed in the context of the Tribunal's finding (consistently with the case advanced by the applicant) that their father, JoDG, although technically the applicant's stepson, regarded himself, and was regarded by the applicant, as the applicant's son. In the reasons at [49], the Tribunal introduced JoDG with the words: "The third son - in fact, the applicant's stepson ...", and a footnote recording "But the stepson refers to the applicant and treats him as his father". From that point onwards in the reasons, JoDG is referred to as the applicant's "son", and his children are referred to as the applicant's "biological" grandchildren. There is, plainly enough, a degree of inaccuracy in the use of that term to describe those grandchildren. But read in context, it seems clear that the Tribunal was using the term in order to reflect the way that the individuals concerned saw themselves in relation to one another.

(c) LS and IS were always correctly identified as "step-grandchildren". Although they were referred to in some of the evidence as "nephews", I did not understand it to be suggested that by referring to them as "step-grandchildren" the Tribunal had erred in any way.

1. It follows from my reasons in sub-paragraph (b) above that, by referring to XD and AP as the applicant's "biological" grandchildren, not only did the Tribunal not misidentify XD or AP, in fact it was acutely sensitive to their relationship with one another. In that sense, the reference to those children as "biological" grandchildren reveals the presence, rather than the absence, of the requisite individual consideration of the interests of each child.
2. Insofar as the second dimension of this error is concerned, I do not consider that the Tribunal failed to give individual consideration to the interests of any of the minor children. The obligation imposed by Direction No. 110 is, of course, to give individual consideration to the interests of each child to the extent that their interests may differ.
3. The applicant submitted that the case advanced before the Tribunal raised different considerations in relation to different grandchildren, including the following:

(a) LA and IA, the children of JuDG, would be particularly affected by the absence of the applicant in ways including the following:

(i) JuDG has experienced serious challenges in his life, including mental illness and substance abuse. Those challenges have meant that he has not been able to care for LA and IA. He is, however, working on improving his life. There was evidence that the applicant would play an important role in supporting JuDG's recovery. For that reason, removal of the applicant from Australia may imperil JuDG's recovery, which would in turn diminish the prospect of LA and IA developing a better relationship with their father.

(ii) LA and IA are presently being cared for by their maternal grandmother. She made it clear that she would benefit in looking after them from the assistance that the applicant would be able to provide her. It follows that removal of the applicant from Australia would adversely affect LA and IA to the extent that their primary carer would be deprived of support and assistance.

(b) The different ages of the various grandchildren means that they would be affected in different ways. For example:

(i) LA and IA had been born before the applicant was imprisoned in 2018 (LA, the eldest, was about three at that point, and IA would have been about one). XD, on the other hand, was not born until after the applicant had been imprisoned. It was thus said that the different children had a different relationship with the applicant by reason of having known him either both pre- and post-imprisonment, or only post-imprisonment.

(c) The terms in which the impacts on the grandchildren were expressed differed. For example:

(i) LA was said to have a "young yet meaningful" relationship with the applicant, and would suffer "significant emotional distress" if he were removed.

(ii) It was said that IA would "miss her grandfather dearly", reflecting the "emotional strength of their bond".

(iii) XD was said to have a "young relationship" with the applicant, and there would be an "emotional impact" if he were deported.

(iv) LS was said to have a "young yet meaningful" relationship with the applicant, and would be "impacted" if the applicant were to be deported.

(v) IS's relationship with the applicant was described as "young", but he too would be "impacted" if the applicant were deported.

1. Insofar as the particular circumstances of LA and IA are concerned, I am satisfied that the Tribunal did give individual consideration to those matters. In the passage from the Tribunal's reasons that I have set out above, the Tribunal recorded (at [51]) that LA and IA "do not have a mother and are living with the maternal grandmother at the present time, and so they have a special need for family support". That finding must be read with other findings made by the Tribunal, including that JuDG "would be at risk of relapse if his father were to leave". Overall, I am satisfied that the Tribunal did consider the individual interests of LA and IA.
2. Otherwise, I am not persuaded that the differences in the way that the grandchildren's relationships with the applicant were described, nor the terms in which the impact of his deportation would be experienced by them, rise to the point where they require separate consideration. It may be accepted that each child would, by reason of their age, the nature and extent of their contact with the applicant, their own needs and temperaments, and a multitude of other factors, be affected in a unique way. But those individual impacts ultimately seem to me to be variations on a common theme. The significance of the fact that some grandchildren had an opportunity to come to know the applicant before his incarceration needs to be assessed in light of their very young age at the point when that occurred. Fundamentally, the grandchildren's interests in relation to the decision were all sufficiently similar to be considered together, and the way in which their respective interests were likely to be affected by the decision also did not differ in such a way as to require separate consideration.

1. Secondly, it was submitted that the Tribunal did not expressly identify what the interests of the minor children were. It was put that those interests were articulated at a very general level, whereas what was required were specific and express findings.
2. It is well-established that the Tribunal has an obligation to determine what the best interests of the minor children are: Spruill v Minister for Immigration and Citizenship [2012] FCA 1401 at [18]. As Buchanan J has observed in Paerau v Minister for Immigration and Border Protection (2014) 219 FCR 504; [2014] FCAFC 28 at [18] (see also [107] per Perry J):

It is basic, of course, that any determination by the AAT about a matter as fundamental and important as the best interests of a child should be the result of a reasoned assessment of material of sufficient probative value that the determination be a sober and considered one, and not capricious, speculative or merely a guess. Something more than lip service to cl 9.3 of Direction No 55 is required.

1. The interests of children have been characterised as involving "considerations in respect of their human development - their health, including their psychological health and happiness, their social and educational development": Perez v Minister for Immigration and Multicultural Affairs (2002) 119 FCR 454; [2002] FCA 450 at [118] (Allsop J).
2. I consider it to be clear from the Tribunal's reasons that it identified the relevant interests of all of the grandchildren to be the social, emotional and psychological benefits they would obtain from the applicant's ongoing presence in their lives (and the avoidance of the corresponding harm to those interests if the applicant were to be deported). As the Tribunal said at [59]: "[c]hildren benefit substantially from the interest and guidance of grandparents". The Tribunal assessed the relationships to be "substantial" and "meaningful", and that the grandchildren would all "miss [the applicant] greatly". The Tribunal accepted that the applicant has maintained a "positive relationship" with each grandchild (other than the newborn, in relation to whom he "wishes very much to play a meaningful role" in her life). Overall, it was held that "the applicant has a strong tie to the minor children and their interests would be substantially affected if he were to be deported." I consider those findings to be sufficient to identify the, often intangible, verging on inexpressible, benefits that attend the relationship of grandparent and grandchild.
3. The interests of LA and IA, of course, were identified as having the additional dimension of their "special need for family support". Once again, particularly when read with the other findings about the circumstances of their father, their absence of a mother, and the strain experienced by their primary caregiver in looking after them, I consider the Tribunal to have sufficiently identified the interests of those minor children, and how the decision would impact them.

1. Thirdly, it was submitted that the Tribunal did not take into account the likely effect of being separated from the applicant, and their ability to maintain contact in other ways (see cl. 8.4(4)(d) of Direction No. 110). In particular, the applicant submitted that, given the differing ages and developmental stages of the various grandchildren, the Tribunal needed to make an individualised assessment of this factor.
2. Of course, the Tribunal found that sending the applicant back to Portugal would mean that he "would be effectively severed from his family in Australia" and "would lose one-on-one contact with all other members of his family" (by which I think it is clear that the Tribunal meant in-person contact). The Tribunal recognised that its decision would "effectively tear apart this family as a cohesive unit".
3. It is apparent that the Tribunal was proceeding on the basis that there would be no effective or satisfactory alternative means by which the applicant could maintain contact with his grandchildren. Indeed, it was not submitted that there was any meaningful alternative means by which the applicant could maintain contact with them. The Tribunal was only required to consider the factors specified in cl. 8.4(4) to the extent they were relevant, which will depend in part on the representations that are advanced: DKN20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 285 FCR 1; [2021] FCAFC 97 at [39]. I thus do not accept that the Tribunal failed to comply with the Direction in this regard.

1. Fourthly, it was said that, despite making findings about how the interests of minor children would be affected by the decision, when it came to weighing all the relevant considerations together for the purposes of making a decision, the Tribunal did not bring the best interests of the children into the mix.
2. I do not think that on a fair reading of the Tribunal's reasons this complaint is made out. The Tribunal stated in clear terms that it "must take into account" the best interests of minor children in Australia, and made findings in relation to them. The fact that it did not then in terms repeat those matters when it described the "weighing" process does not mean that they weren't taken into account. The Tribunal said that, in weighing up all of the relevant considerations, it "should confront squarely what a decision to affirm would imply for an applicant and those close to him". It referred to the fact that the applicant's deportation would be "an extremely severe burden for his family to bear", that family connections "give meaning to life", and that the applicant "provides emotional stability and support to a great number of people". The Tribunal recognised that its decision would "tear apart this family". Those statements can only be read as incorporating, and taking into account, the findings made earlier about the impact of the decision on the best interests of the applicant's grandchildren.

Conclusion on the First and Second Grounds of Review

1. For all of the above reasons, I am satisfied that the Tribunal did not fail to comply with Direction No. 110 insofar as it required a consideration of the best interests of the applicant's minor grandchildren.

THE APPLICANT'S POSITIVE CONTRIBUTIONS TO AUSTRALIA

1. Clause 8.3 of Direction No. 110 is concerned with the strength, nature and duration of a non-citizen's ties to Australia. It states:

8.3. The strength, nature and duration of ties to Australia

(1) Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.

(2) Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:

a) how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:

i. less weight should be given where the non-citizen began offending soon after arriving in Australia; and

ii. more weight should be given to time the non-citizen has spent contributing positively to the Australian community

b) the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.

1. The Tribunal made findings about the contributions the applicant had made to the Australian community, including in his work and community events, including as follows:

[9] The applicant attended school in Australia and was educated to Year 9 level. After leaving high school, he had a number of jobs (principally labouring), and eventually worked as a cement renderer in his own business from 1999 until 2018 (when he was jailed). I accept that he worked hard and supported a family during this time. ...

...

[56] ... I also note that the applicant has participated in community events, including a regular charitable motorcycle ride for children who are suffering from cancer.

[57] I bear in mind that the applicant is now 60 years of age. He is an integral part of many people's lives. I accept that he has worked hard in his cement-rendering business and has supported his family well. He has raised two sons, who acknowledge their distance from their biological mother. It would be wrong, I believe, to discount any of his significant contribution by emphasising the drug supply convictions and the violence in the relationship with his former partner.

[58] The ties-to-Australia consideration counts very substantially in the applicant's favour in my view. I have read carefully the submissions made in the applicant's Statement of Facts, Issues and Contentions [footnote Ex A3, 6-13, [53]-[95]] and I accept them.

1. The complaint at the heart of the applicant's third ground of review is that the Tribunal failed, contrary to cl. 8.3(2)(a)(ii) of Direction No. 110, to take into account the time that the applicant had spent contributing positively to the Australian community. That is to say, while the applicant accepts that the Tribunal made findings about how he had contributed positively to the Australian community, he submits that it did not identify the duration of the period in which he made those contributions (either in absolute terms, or relative to the period of offending).
2. I do not accept that cl. 8.3(2)(a)(ii) requires a decision-maker to identify with precision a period of time in which a non-citizen made a positive contribution to Australia marked in days, months or years. The obligation, in considering "the strength, nature and duration of any other ties that the noncitizen has to the Australian community", to have regard to "how long the non-citizen has resided in Australia", and to give "more weight ... to time the non-citizen has spent contributing positively to the Australian community", requires a substantive, and not merely a mechanical, evaluation of all dimensions of the applicant's connections to Australia. Such an assessment is capable of being undertaken in a variety of ways, not all of which require the temporal exactitude for which the applicant contended.
3. It follows that I also reject the submission that the clause requires the specification of a relativity between the periods of positive and negative (or non) contributions to the Australian community. This form of the submission really amounted to a reformulation of the one I have just rejected, but substituting the requirement for the identification of an absolute period of time with a ratio.
4. The Tribunal's reasons show that it addressed the substance of the considerations identified in cl. 8.3(2)(a)(ii). At various points in its reasons, the Tribunal recorded that the applicant has resided in Australia from the age of six, that he has not departed Australia ever since, and that he is now sixty years old: see, eg., at [8], [57], [68] and [80]. The applicant was said to have worked in the community ever since leaving school in Year 9, up until he was jailed in 2018 (at [9]).
5. The applicant's submissions focused on the fact that the Tribunal did not address the duration of time that the applicant spent participating in specific community events and activities. But it seems to me that the Tribunal perceived the applicant's positive contributions to the Australian community more broadly than those specific activities. Immediately after describing the applicant's participation in community events, the Tribunal said (at [57]):

I bear in mind that the applicant is now 60 years of age. He is an integral part of many people's lives. I accept that he has worked hard in his cement-rendering business and has supported his family well. He has raised two sons, who acknowledge their distance from their biological mother. It would be wrong, I believe, to discount any of his significant contribution by emphasising the drug-supply convictions and the violence in the relationship with his former partner.

The ties-to-Australia consideration counts very substantially in the applicant's favour in my view. I have read carefully the submissions made in the applicant's Statement of Facts, Issues and Contentions and I accept them.

1. The Tribunal's reasons thus recognise that the applicant's positive contributions to the Australian community may be found, in effect, in the hardworking, caring and generous way that he has lived his whole life, and in the positive impact he has had on those around him. As I read the Tribunal's reasons, the entire period of the applicant's life in Australia was regarded treated as the period in which the applicant had made positive contributions to the Australian community. Indeed, the Tribunal specifically held that the applicant's positive contributions were not diminished by his criminal offending.
2. In one sense, therefore, the Tribunal has in fact done what the applicant says it should have done: it has identified the duration of the applicant's positive contributions to the Australian community as the entire period in which he has lived here, recognising that his criminal offending did not diminish or negate those contributions. At the very least, though, I am satisfied that the Tribunal has focussed on the issues of substance that cl. 8.3(2)(a)(ii) requires a decision-maker to consider.

1. For the foregoing reasons, I am satisfied that the Tribunal did not fail to follow Direction No. 110 and there is no material jurisdictional error made out.
2. The application should be dismissed with costs.

I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Owens.