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

Federal Court of Australia (Full Court)|2022-03-03|Before: Rofe JJ

Background 2 Mr Khalil is an Egyptian national who arrived in Australia on a student visa in 2007 at the age of 19. He married in 2009 but the marriage ended in divorce only two years later. In 2012 he married again, this time to an Australian citizen, and in April 2013 he applied for a partner visa. On 4 November 2014, the Minister (through his delegate) refused that application as the delegate was not satisfied the marriage was genuine. On review, the Tribunal set aside that decision and remitted the application to the Minister's Department for determination of the remaining considerations. 3 Mr Khalil has been convicted of a number of offences, escalating in severity over the years. In 2009, two years after his arrival in this country, he was convicted of the offence of driving without authority, fined $300 and had his licence suspended for three months. On 28 November 2013 he was convicted of "creating a false belief" and fined $750. On 24 February 2014 he was convicted of assault occasioning bodily harm with circumstances of aggravation and sentenced to a six-month intensive supervision order. The victim of this assault was his then-wife. On 6 August 2014 he was convicted of possessing a prohibited drug (cannabis) and fined $250. On 11 August 2014 he was convicted of possessing a prohibited drug (cannabis) and fined $400. On 25 August 2014 he was convicted of breaching the intensive supervision order, given a six-month suspended prison sentence and fined $500. On 12 February 2015 he was convicted of possessing a prohibited drug (cannabis) and fined $400. On 15 January 2016, he was sentenced to a term of imprisonment of one year and four months for possessing a prohibited drug (cannabis) with intent to sell or supply. 4 On 9 November 2017, a delegate of the Minister refused to grant Mr Khalil a partner visa because the delegate was satisfied that Mr Khalil had a "substantial criminal record" and did not pass the character test for the purposes of ss 501(6)(a) and (7)(c) of the Migration Act 1958 (Cth) (the Act). That decision was affirmed by the Tribunal on review. Mr Khalil applied for judicial review of the Tribunal's decision. That application was dismissed but, following an appeal to the Full Court, the Tribunal's decision was quashed: Khalil v Minister for Home Affairs (2019) 271 FCR 326 (Logan, Steward and Jackson JJ) (Khalil (No 1)). 5 On remittal, a differently constituted Tribunal again affirmed the delegate's decision to refuse to grant Mr Khalil a partner visa: Khalil and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 4592. Before this Tribunal Mr Khalil relied on additional documents, including a report of a clinical psychologist, Dr Indira Pattni, which included opinions on his risk of reoffending and the best interests of his children.

The legal framework 6 Section 501(1) confers a discretionary power on the Minister to refuse to grant a visa to a person if the person does not satisfy the Minister that they pass the character test. Section 501(6) relevantly provides that a person does not pass the character test if that person has a "substantial criminal record". That term is relevantly defined in subs (7)(c) to mean a person who has been "sentenced to a term of imprisonment of 12 months or more". 7 Section 499(1) of the Act provides that the Minister may give written directions to a person or body having functions or powers under the Act if the directions are about the exercise of those functions and powers. Section 499(2A) relevantly imposes an obligation on a person or body to comply with a direction made under s 499(1). At the time of the Tribunal's decision, the relevant Ministerial direction was Direction No 79, entitled "Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA" (Direction 79). 8 Clause 8(1) of Direction 79 requires decision makers to "take into account the primary and other considerations relevant to the individual case". The relevant primary considerations are contained in cl 11 and comprise the "protection of the Australian community from criminal or other serious conduct", the "best interests of minor children in Australia", and the "expectations of the Australian community". The relevant "other considerations" are contained in cl 12. These include international non-refoulement obligations and the impact on family members, victims, and Australian business interests. 9 Clause 8(2) contains guidance on the weight to be afforded to certain evidence when applying these considerations. It states: (2) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight. 10 In considering the "protection of the Australian community", cl 11.1(1)(b) provides that a decision maker should take into account the "risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct". Clause 11.1.2(3) sets out the relevant matters that must be taken into account when assessing this risk. It states: (3) In considering the risk to the Australian community, decision-makers must have regard to, 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 re-offending; and ii. evidence of any rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their 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. 11 In assessing the "best interests of the child", cl 11.2(4) requires the decision maker to consider the following factors where relevant: 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. 12 Applications may be made to the Tribunal for review of a decision made under s 501: s 500(1)(b). Pursuant to ss 25 and 43 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act), the Tribunal must "stand in the shoes" of the Minister and determine for itself the decision that should be made on the evidence before it, exercising the relevant powers and discretions conferred on the Minister: Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250 at [51] (Kiefel CJ, Keane and Nettle JJ). 13 The Tribunal is not bound by the rules of evidence but may inform itself of any matter as it thinks appropriate (AAT Act, s 33(1)(c)). The Tribunal is required to give oral or written reasons for its decision, and if it gives written reasons it must "include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based" (AAT Act, ss 43(2) and (2B)). 14 A decision of the Tribunal concerning a matter of this nature is a privative or purported privative clause decision of the Tribunal within the meaning of s 474 of the Act. As the Full Court explained in Khalil (No 1) at [43]: The jurisdiction of the Federal Court to review decisions of the Tribunal in the present context is limited to jurisdictional error: Migration Act s 476A(2). Not every error of law is a jurisdictional error: see the recent analysis in Tsvetnenko v United States of America (2019) 367 ALR 465 at [33]‑[40]. In a statutory decision making process, jurisdictional error is a failure to comply with one or more statutory preconditions or conditions to an extent which results in a decision which has been made in fact lacking characteristics necessary for it to be given force and effect by the statute pursuant to which the decision maker purported to make it: Hossain v Minister for Immigration and Border Protection (2018) 359 ALR 1 at [24] (Kiefel CJ, Gageler and Keane JJ). "The question is always one of construction of the legislation: which breaches of a provision does the legislation, either expressly or, more commonly, impliedly, treat as depriving the decision maker of power?": Hossain at [67] (Edelman J, Nettle J agreeing). 15 Furthermore, an error will not be jurisdictional unless it could realistically have led to a different outcome, a matter upon which the applicant bears the onus: Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at [4], [45] (Bell, Gageler and Keane JJ).

The Tribunal's decision 16 Having found that Mr Khalil did not pass the character test on account of his "substantial criminal record", the only issue before the Tribunal was whether to exercise the discretion in s 501(1) to refuse to grant the visa, having regard to the primary and other considerations in Direction 79. 17 In considering the "protection of the Australian community", the Tribunal reviewed Mr Khalil's criminal history and considered that his drug and domestic violence offences were serious and that any repetition of these offences would result in serious harm. It then considered whether there was a risk that Mr Khalil would reoffend in the future. As the Tribunal's reasons on this point are critical to the appeal, it is convenient to set them out in full: 36. I accept that the applicant has participated in numerous rehabilitative programs, in particular in 2019 and early 2020, as evidenced by numerous certificates of participation in courses covering topics of life skills, men's group, parenting, conflict resolution, anger management and drugs and alcohol. Prior to 2019 the applicant participated in eight weekly Men's Group counselling sessions in the Yongah Hill detention centre which were predominantly focussed on drugs and alcohol. I take into account that the applicant has a record of good behaviour whilst in prison and in detention. I also take into account numerous letters of support from work colleagues, family friends and a senior drug and alcohol counsellor. However, despite the applicant's good behaviour and participation in rehabilitative courses, he failed to show genuine remorse or insight at the hearing. While he expressed remorse for his offending, he simultaneously sought to minimise the seriousness of the domestic violence and the drug supply during his evidence at the hearing. The applicant maintained his denial of having an intent to sell or supply cannabis, and he sought to justify his domestic violence by saying that his wife was hitting him and that she was a strong and big woman. At times in his evidence, he blamed others such as his co-accused or his lawyer. 37. I consider that the applicant lacks the appropriate insight into the seriousness of his offending and that, as a result, he is not fully rehabilitated. The applicant's criminal history demonstrates that he has had very little regard for the law. His claimed rehabilitation has not been tested in the community. Whilst he used to have the support of his wife, it would appear that she no longer supports him because they have divorced, and she no longer visits him. I find that there is a real and unacceptable risk that he will reoffend. 38. I have taken into account the written report and oral evidence from the clinical psychologist, Dr Pattni. She refers to the love that the applicant has for his two children and the time spent in prison and detention as being factors in favour of him not reoffending. She refers to the volunteer courses that he participated in including drug and alcohol, fathering, stress and anxiety management. She expressed her conclusion in respect to rehabilitation and recidivism by saying that 'evidence based research mentioned above gives support the probability that Mr Kahlil is in a cohort group that stands an enhanced chance of positive rehabilitation.' She said in her oral evidence that if released he would need support and that his rehabilitation would continue. When asked, she could not say that he is fully rehabilitated now but it was her view that he would fully rehabilitate because of the significant motivation supplied by his children. She concluded in her oral evidence that the applicant has a remote chance of reoffending and a good chance of rehabilitating. 39. I am unable to accept Dr Pattni's opinion that the applicant only has a remote chance of reoffending. I remain very concerned by the seriousness of his offending and his oral evidence at the hearing as stated above. (Emphasis added.) 18 Consequently, the Tribunal concluded that the "protection of the Australian community" weighed heavily in favour of exercising the discretion to refuse to grant the visa. 19 The Tribunal found that the "best interests of the child" consideration weighed against refusing the visa, but considered that there were other factors that diminished its overall weight. The Tribunal accepted that Mr Khalil would play a "positive role in the future with his children", but observed that, as his relationship with his wife had broken down and she had taken steps to prevent Mr Khalil from seeing the children, the exact nature of that role was uncertain. The Tribunal also observed that Mr Khalil had had limited contact with his second child, who was born 22 days before he was taken into immigration detention. In addition, the Tribunal said at [43] of its reasons: The applicant contended that his ex-wife is at risk of Huntington's disease and therefore of limited capability to care for the children but I give this limited weight because, despite carrying the gene, the ex-wife has not been diagnosed with Huntington's disease and there is no expert evidence as to when she may suffer from the disease in the future. 20 Finally, the Tribunal decided that the "expectations of the Australian community" weighed strongly in favour of refusing to grant the visa. The Tribunal noted that Mr Khalil agreed that neutral weight should be afforded to the remaining factors as he had made no submissions on them. Nonetheless the Tribunal considered that refusing the visa would have a negative impact on Mr Khalil's ex-wife and afforded this factor positive weight in favour of granting the visa. 21 Having weighed these various factors in the balance, the Tribunal concluded that the considerations in favour of refusing the visa outweighed those against and so affirmed the decision under review.

The application below 22 By an amended originating application, Mr Khalil, who by then was represented by pro bono counsel, raised a single ground of review: that the Tribunal constructively failed to exercise its jurisdiction by rejecting Dr Pattni's expert evidence regarding Mr Khalil's likelihood of reoffending and reasoning that it was "very concerned with the seriousness of [his] offending and [his] oral evidence at the hearing". He alleged that this reasoning constituted a failure to engage with a substantially and clearly articulated point or was a denial of procedural fairness and exposed a lack of intelligible justification or illogicality.

The reasons of the primary judge 23 The primary judge did not consider that the Tribunal erred in not accepting Dr Pattni's opinion. 24 His Honour held that, although it could derive assistance from Dr Pattni's opinion, the Tribunal was not bound to uncritically accept it, even in the absence of any contradictory medical evidence (at [34]-[35]). And he did not accept that the Tribunal's rejection of Dr Pattni's evidence involved an illogical conclusion that Mr Khalil did not have a remote chance of reoffending. This conclusion, his Honour found, was based on a number of other matters to which the Tribunal referred in its reasons (at [37]). Those matters included Mr Khalil's lack of insight, his attempts to downplay the seriousness of the domestic violence offence, his refusal to accept that he was guilty of intending to sell and supply drugs, his lack of remorse, and the little regard he had shown for the law as demonstrated by his criminal history. 25 His Honour considered that the Tribunal's reasons provided a rational and intelligible justification for its finding concerning the risk of Mr Khalil reoffending and did not accept that it failed to actively engage with Dr Pattni's evidence (at [41]-[42]). On this latter question his Honour said (at [42]): Nor am I persuaded that the Tribunal failed to engage with a substantially, clearly articulated point based on established facts. First, it is inappropriate to describe Dr Pattni's evidence as an established fact. It is an expert opinion, which the Tribunal was obliged to weigh against the other evidence before it. Second, the Tribunal clearly had regard to Dr Pattni's evidence. It summarised the salient parts of her evidence and expressly referred to her evidence that she could not say that the applicant was fully rehabilitated at that time (at [38]). The Tribunal also referred to Dr Pattni's evidence that, if allowed back into the community, the applicant would need support (at [38]), having previously noted that the applicant no longer had the support of his former wife (at [37]). On a fair reading, that indicates that the Tribunal engaged in an "active intellectual process" in relation to the content of Dr Pattni's evidence (Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; 347 ALR 173 at [46] (Griffiths, White and Bromwich JJ)), but having regard to all the evidence it was not persuaded to accept her opinion. 26 His Honour emphatically rejected Mr Khalil's contention that the Tribunal denied him procedural fairness, a contention which was apparently not developed in submissions (at [43]-[45]). According to his Honour, the gist of this argument was that the Tribunal "came up with the idea" that he lacked insight into the seriousness of his offending, an idea not founded in the evidence, and that he had no notice that the Tribunal might not accept Dr Pattni's evidence on that account. Since no similar complaint is made on the appeal, it is unnecessary to refer to his Honour's reasons for rejecting it.

The appeal 27 Mr Khalil filed a notice of appeal in respect of the primary judge's decision on 14 October 2021. At the time he filed that notice of appeal, he was unrepresented. The notice of appeal contained a single ground, which essentially reproduced the sole ground contained in the application for judicial review before the primary judge. It stated: The learned primary Judge: 1A. Erred in not finding that the Second Respondent's (Tribunal) decision to affirm the delegate's refusal under ss 501(1) of the Migration Act 1958 (Cth) is vitiated by a constructive failure to exercise jurisdiction in its rejection at AB 627 [39] of Dr Pattni's expert evidence directed to likelihood of re-offending by reasoning, in totality, that the Tribunal was 'very concerned by the seriousness of [the applicant's] offending and [the applicant's] oral evidence at the hearing ... ' 1A.1 The reasoning at [39] exposes a failure to engage with substantial, clearly articulated point based on established facts or a denial of procedural fairness. 1A.2 The reasoning at [39] exposes a lack of an intelligible justification or illogicality. 28 On 18 November 2021, the Court referred Mr Khalil for pro bono legal assistance. On 20 January 2022, Mr Hibbard of counsel, who did not appear on the judicial review application, agreed to accept the referral. Later that day, orders were made by consent effectively extending the time in which the parties were to file submissions. 29 Mr Khalil filed his submissions on 7 February 2022. Annexed to those submissions was a draft amended notice of appeal. Mr Khalil sought leave to replace the single ground contained in the notice of appeal with two new grounds. These grounds read as follows: 1. The learned primary judge erred in not finding that the Tribunal's decision is affected by jurisdictional error, because the Tribunal: (a) failed to comply with Ministerial Direction No 79 and thereby breached s 499(2A) of the Migration Act 1958 (Cth); and/or (b) constructively failed to exercise its jurisdiction; and/or (c) failed to consider a relevant consideration, being relevant information, evidence and/or a submission of substance; and/or (d) acted in a legally unreasonable way, in its rejection at AB 627 [39] of Dr Pattni's expert evidence directed to the likelihood of Mr Khalil re-offending. The Tribunal reasoned, in totality, that the Tribunal was "very concerned by the seriousness of [Mr Khalil's] offending and [Mr Khalil's] oral evidence at the hearing …". 2. The learned primary judge erred in not finding that the Tribunal's decision is affected by jurisdictional error because the Tribunal failed to consider important or significant evidence and/or failed to consider a relevant consideration and/or constructively failed to exercise its jurisdiction. Particulars (a) In considering the mandatory relevant consideration "The best interests of minor children in Australia", the Tribunal failed to consider the evidence of Dr Pattni going to that issue. (b) In considering the mandatory relevant consideration "The best interests of minor children in Australia", the Tribunal failed to consider the evidence relating to the children's mother's susceptibility to Huntington's Disease, and the evidence relating to the children's susceptibility to Huntington's Disease.

Should leave be granted to allow these points to be raised? 30 Mr Khalil submitted that the first of these grounds is merely a reformulation of the original ground of appeal. The Minister did not take issue with this contention and did not oppose a grant of leave in this respect. The only substantive change is to omit the complaint about a denial of procedural fairness. Accordingly, leave was granted to enable Mr Khalil to rely on the reformulated ground. 31 But leave to raise the second ground was opposed. 32 The sole explanation given for raising the new ground was a change of counsel. Mr Khalil submitted that this may be an adequate explanation in circumstances where the new ground has merit. He also contended that leave should be granted as the new ground turned only upon a question of construction or a point of law and did not involve disputed facts: see Murad v Assistant Minister for Immigration and Border Protection (2017) 250 FCR 510 (Griffiths and Perry JJ) at [20]. Finally, he submitted that the prejudice to the Minister was limited as the Minister had the opportunity to address the proposed new ground in his written submissions. 33 The Minister contended that leave to raise the new ground should be refused as Mr Khalil had provided no explanation as to why the ground was not raised before the primary judge in circumstances where he was legally represented, and that, in any event, the proposed ground did not have sufficient prospects of success. 34 The Court's power to grant leave must be exercised in the way that best promotes the overarching purpose of the civil practice and procedure provisions of the Federal Court of Australia Act 1976 (Cth) (FCA Act) and Rules: FCA Act, s 37M. That purpose is the facilitation of "the just resolution of disputes… according to law" and "as quickly, inexpensively and efficiently as possible". It includes objectives such as the just determination of all proceedings before the Court; the efficient use of the Court's judicial resources; the efficient disposal of the Court's overall caseload; and the timeous disposal of all proceedings. Dealing with a point for the first time on appeal does not serve those objectives. 35 Without more, the fact that there has been a change of counsel is insufficient to justify a grant of leave: see, for example, BLX16 v Minister for Immigration and Border Protection [2019] FCAFC 176 at [31] (Moshinsky, Steward and Wheelahan JJ); DKT16 v Minister for Immigration and Border Protection [2019] FCAFC 208 at [31] (Davies, Moshinsky and Snaden JJ). Even before s 37M was enacted, the Court's position was that leave to argue a point not raised before a primary judge should only be granted "if it is expedient in the interests of justice to do so": VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588 at [46] (Kiefel, Weinberg and Stone JJ). In VUAX the Full Court observed at [48]: The Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated. Where, however, there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused. 36 Requiring an appellant to show that it is expedient and in the interests of justice for an appellate court to grant leave "endeavours to strike an appropriate balance between securing the role of the court at first instance, protecting the integrity of the appellate process, and meeting the needs of justice as understood within the judicial process": CVRZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 205 at [19] (Kenny, Davies and Banks-Smith JJ). The interests of justice include "the potential vindication of a just outcome" and the gravity of the consequences of the decision is a relevant consideration: MBJY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 11 at [2] (Allsop CJ). It is true that appeals are not intended to provide an opportunity to conduct a second trial on a different basis than the first (see the discussion in Han v Minister for Home Affairs [2019] FCA 331 at [10]-[18] per Bromwich J and the authorities referred to there). Nevertheless, the predominant consideration must be the interests of justice. In the absence of prejudice to the respondent, the more meritorious the point, the more likely it is that leave will be granted notwithstanding the other considerations which favour its refusal. 37 Here, contrary to the Minister's submission, an explanation has been proffered for raising the new point. But it is far from adequate. No evidence was adduced to suggest that the point was not raised below due to incompetence, negligence or even an oversight on the part of Mr Khalil's former counsel. For all we know, it was the product of a forensic decision. After all, over the Minister's submission to the contrary, the Tribunal found that Mr Khalil would play a positive role in his children's lives and decided that it was in the best interests of the children that the discretion to grant the visa be exercised in his favour. On the other hand, for the reasons set out below, we are persuaded that the point is not of doubtful merit and, in the absence of any prejudice to the Minister, we consider it to be in the interests of justice to grant Mr Khalil leave to raise it.

Was the rejection of Dr Pattni's opinion on the prospects of reoffending a jurisdictional error (ground 1)? 38 Ground 1 involved an attack on the Tribunal's finding at [39] of its reasons, set out at [17] above. 39 Mr Khalil's case, in a nutshell, was that the Tribunal failed to give "appropriate weight" to the evidence of Dr Pattni concerning the level of risk he posed to the Australian community and that failure was a jurisdictional error because the Tribunal did not comply with Direction 79 and therefore breached s 499(2A) of the Act. Alternatively, he characterised it as "an unreasonable exercise of the discretion in s 501(1)". He submitted that the alleged error was sufficiently serious to be classified as jurisdictional because it undermined the Tribunal's ability to carry out the review of the delegate's decision and therefore caused it to fail to exercise its jurisdiction. He argued that the failure was material because there was a realistic possibility that the Tribunal's decision would be different if the Tribunal had "squarely engaged" with the basis of Dr Pattni's opinion. 40 Mr Khalil focused on cl 8(2) of Direction 79 which, as set out above, requires a decision maker to give "appropriate weight" to "information and evidence from independent and authoritative sources". He submitted that giving "appropriate weight" to Dr Pattni's evidence required the Tribunal to consider her conclusions, and if it wished to disregard them, engage directly with them or the assumptions on which they were based, particularly when there was no expert evidence to the contrary. 41 The gravamen of the case as it was argued on the appeal was that the Tribunal "fail[ed] to engage with three key contextual factors" which, Mr Khalil contended, led to Dr Pattni's conclusion. Those contextual factors were said to be the following (background matters) (without alteration): Background and its relevance: • There was total lack of support and family and this leading to choices he made in befriending people - primarily those who warmed up to him and indiscriminately leading to establishing some undesired behavioural habits that he still regrets till today. • Given his ignorance, lack of language and level of literacy of the rules of a new country and its social skills this is not uncommon. • It was in this adaptation period that he was introduced to the recreational drugs and alcohol, and coming from the conservative cultural background he does, it was not surprisingly to see attraction to the activities "forbidden" in the traditional home of his family. 42 Mr Khalil submitted that it was necessary for the Tribunal to at least address the background matters if it was going to form a lay opinion on them in reaching its conclusion. 43 Mr Khalil relied on several criminal cases in which it was held that unchallenged expert evidence going to a person's state of mind should be accepted unless there are facts or circumstances that displace or throw doubt on it, citing, for example, Taylor v The Queen (1978) 45 FLR 343; 22 ALR 599 and R v NCT (2009) 26 VR 247 at [19] (Nettle JA). In R v NCT, Nettle JA observed at [19] (quoting with approval Smithers J in Taylor): It is true that, where expert evidence of mental defect or disability is all the one way, it may be inappropriate and sometimes erroneous to direct a jury to the effect that they are "free to make up their own mind" and that "the expert evidence is there to assist you, you are not bound to adopt it". As Smithers J said in Taylor v R: Where the fact in issue was the state and capacity of mind and the only evidence thereof is expert opinion, the jury should understand that where the competence and honesty of the expert are accepted his skill in the area should be respected and should only be rejected for good reason. But if the jury are under the impression that on the relevant issue they must look at the "facts" given in evidence other than by the experts as the source or primary source of proof of insanity, and that they are not bound by the opinions and are free to make up their own mind contrary to those opinions, then it is hard to think that they would be performing their task according to law. And it appears to me that there was great danger that the impression of the jury would have been that referred to above. If so, that would explain the verdict which it is reasonable to think was quite unexpected. (Footnotes omitted.) 44 Mr Khalil also referred to the following remark in Kosian v The Queen (2013) 40 VR 335 at [51] in which Redlich JA, with whom Coghlan JA and Dixon AJA agreed, observed: In cases where insanity is the issue, a danger may thus arise that unless warned, the jury may fail to appreciate the significance of the expert evidence and assess the applicant's conduct by attributing to him the kind of reasoning that a person without a mental illness would employ. 45 These submissions must be rejected. 46 First, as his counsel conceded in oral argument, "appropriate weight" means no more or less than such weight as the decision maker considers appropriate in the circumstances of the case. 47 Second, the authorities upon which Mr Khalil relied were concerned with evidence regarding the capacity of an accused to form intent in the context of a criminal charge. They are not relevant here. Insanity is not an issue in this case. We accept the submission that a tribunal of fact should be hesitant about reaching its own conclusions about a person's state of mind where there is expert evidence on the subject. But the background matters were not concerned with Mr Khalil's state of mind, at least not directly. Even if it could be so construed, it was not the only evidence before the Tribunal on the subject. There was also Mr Khalil's own evidence. 48 Third, the background matters were not raised in Mr Khalil's Statement of Facts, Issues and Contentions and it was not suggested that they were relied upon in oral submissions to the Tribunal. In these circumstances it is difficult to see why the Tribunal was required to give them any particular weight. 49 Fourth and in any case, the mere failure to mention this evidence does not indicate that the Tribunal disregarded it. 50 The subject the Tribunal was addressing was the risk to the Australian community should Mr Khalil commit further offences or engage in other serious conduct. The Tribunal stated that it had taken into account Dr Pattni's "written report and oral evidence". At least on this subject, there is no reason why the Court should not take the Tribunal at its word. It was not obliged to refer to everything in the report. It was only obliged to include in its reasons its findings on material questions of fact and a reference to the evidence or other material on which those findings were based: AAT Act, s 43(2B). We reject the submission that the structure of the Tribunal's reasons indicated that it had reached its conclusions without taking into account Dr Pattni's opinion or giving it "appropriate" weight. The fact that it mentioned the opinion after it stated its own is neither here nor there. It is trite to observe that the reasons of the Tribunal must be read fairly and as a whole. This particular submission seems to be a classic example of the technique deprecated in such cases as Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 and Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 of over-zealous scrutiny of the reasons of an administrative decision maker by "seeking to discern whether some inadequacy can be gleaned from the way in which the reasons are expressed": Wu Shan Liang at 272 (Brennan CJ, Toohey, McHugh and Gummow JJ). In any event, a Tribunal does not necessarily decide each factual issue in isolation and the expression of conclusions in a certain sequence does not indicate a failure to consider evidence as a whole: Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; 77 ALJR 1165; 198 ALR 59; 73 ALD 1 at [14] (Gleeson CJ). 51 Fifth, Dr Pattni's remarks concerning Mr Khalil's background were little more than observations about the circumstances in which he was placed before or at the time he committed the two offences she mentioned. While no doubt they informed Dr Pattni's opinion, their relevance to his risk of reoffending was not explained. 52 It could not possibly be said that the Tribunal did not engage directly with Dr Pattni's opinion concerning the risk of reoffending. The inference that should be drawn from the Tribunal's reasons was that it gave Dr Pattni's remarks concerning the background matters the weight they deserved in the light of all the evidence. We cannot accept that the Tribunal did not comply with Direction 79 in this respect. 53 Mr Khalil conceded that the primary judge was correct to hold that the Tribunal was not bound by opinions expressed by experts, referring to the same cases cited by the primary judge: YKSB v Minister for Home Affairs [2020] FCA 476 at [45] (Mortimer J) and JKPM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1293; 171 ALD 277 at [74] (Perry J). Mr Khalil did not argue that these cases were wrongly decided. Rather, Mr Khalil contended, in effect, that they were distinguishable in that they were concerned with the exercise of the discretion contained in s 501CA(4) of the Act, which was based on the decision maker's satisfaction that "there is another reason why the original decision should be revoked". Mr Khalil argued the discretion in the present case under s 501(1) was different as it did not concern the decision maker's state of satisfaction. 54 We cannot accept this contention either. 55 Whatever differences there may be between the exercise of the discretion in s 501(1) and the decision making process in s 501CA(4), they do not alter the proposition that the weighing of evidence is a matter for the Tribunal: Abebe v Commonwealth (1999) 197 CLR 510 at [197] (Gummow and Hayne JJ); Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 at [33] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ). The Tribunal was free to decide what ought to have been made of Dr Pattni's opinions. It was entitled to reach its own conclusion concerning Mr Khalil's risk of reoffending based on the other evidence before it, limited only by the bounds of rationality and logic. As the primary judge held, there was nothing irrational or illogical about the Tribunal's conclusions. 56 In substance or effect, the Tribunal rejected the opinion of Dr Pattni because it was unable to accept the assumptions upon which it was based. Those assumptions included an incomplete history. Amongst other omissions, Dr Pattni recorded just two convictions, described only as "possession of prohibited drugs with intent to sell" and an "unlawful assault against his wife". The evidence before the Court indicates that she was not provided with a full criminal history or an account of the facts underlying the two convictions she referred to. The Tribunal was entitled, indeed obliged, to take into account the evidence from Mr Khalil, himself, which tended to undermine the opinions expressed by Dr Pattni as to the extent to which he had been rehabilitated and the level of his risk of reoffending and therefore the degree of risk he posed to the Australian community. Were it to do otherwise, the Tribunal might properly be criticised for not giving "appropriate weight" to those opinions. 57 In short, the Tribunal's reasons disclose that it considered the written report and oral evidence of Dr Pattni, and summarised her key conclusions. Contrary to Mr Khalil's allegation, the Tribunal did provide a logical and rational basis for rejecting Dr Pattni's opinion. For the reasons given by the primary judge, the Tribunal provided numerous bases for rejecting Dr Pattni's conclusions. The Tribunal was not required to refer in its reasons to every matter to which Dr Pattni had regard and an inference should not be drawn that the Tribunal overlooked certain matters simply because it did not do so: WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 at [46]-[47] (French, Sackville and Hely JJ). 58 Ground 1 must be rejected. The Tribunal did not commit a jurisdictional error by not accepting Dr Pattni's opinion that the risk of Mr Khalil reoffending was remote.

Did the Tribunal fall into jurisdictional error by failing to consider Dr Pattni's opinion concerning the effect of visa refusal on the children (ground 2(a))? 59 Mr Khalil submitted that the Tribunal failed to have regard to the evidence in Dr Pattni's report concerning the risk of behavioural or emotional disorders in children where the father is incarcerated; the risks to the children in the present case owing to their mother's medical condition; the risks posed by the absence of support from the extended family; the "unanimous research findings" about the internalisation of "at risk" behaviours where a mother is critically unwell and the father absent; and the "mental health burden and unfavourable consequences" of Mr Khalil's deportation on the children. 60 The obligation of the Tribunal imposed by s 43(2B) of the AAT Act is to set out its findings on questions of fact it considers material, together with the evidence and other material on which those findings are based. That means that a court is generally entitled to infer that any matter not mentioned in the reasons "was not considered by the Tribunal to be material" to its review: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 346 (McHugh, Gummow and Hayne JJ). In Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16; 309 ALR 67; 309 ALD 67 (Katzmann, Griffiths and Wigney JJ) at [34] the Full Court observed that: The fact that a matter is not referred to in the tribunal's reasons, however, does not necessarily mean the matter was not considered by the tribunal at all: [Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594] at [31]. The tribunal may have considered the matter but found it not to be material. Likewise, the fact that particular evidence is not referred to in the tribunal's reasons does not necessarily mean that the material was overlooked. The tribunal may have considered it but given it no weight and therefore not relied on it in arriving at its findings of material fact. But where a particular matter, or particular evidence, is not referred to in the tribunal's reasons, the findings and evidence that the tribunal has set out in its reasons may be used as a basis for inferring that the matter or evidence in question was not considered at all. The issue is whether the particular matter or evidence that has been omitted from the reasons can be sensibly understood as a matter considered, but not mentioned because it was not material. In some cases, having regard to the nature of the applicant's claims and the findings and evidence set out in the reasons, it may be readily inferred that if the matter or evidence had been considered at all, it would have been referred to in the reasons, even if it were then rejected or given little or no weight: [Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114] at [52]. 61 With respect to the first aspect, the subject of particular (a), three preliminary observations should be made. 62 First, the Tribunal did say in its reasons that it had taken Dr Pattni's report into account (at [38]). Second, the Tribunal also concluded at [53] that "[n]ot having their father present in their lives will have a negative impact on the children". Third, Dr Pattni did not take into account a number of matters mentioned by the Tribunal in its reasons, such as the older child having been present at the scene of Mr Khalil's assault on his mother, the breakdown of Mr Khalil's second marriage or the mother's attempt to prevent Mr Khalil having access to the children (presumably because she was not told about them). 63 Read in context, however, the first statement related to Dr Pattni's evidence touching on the risk of reoffending. The conclusion that the absence of Mr Khalil would have a negative impact on the children was made without reference to Dr Pattni's opinion and there is nothing in the reasons to indicate that the Tribunal had regard to that opinion in reaching that conclusion. Finally, the matters mentioned by the Tribunal might well affect the weight the Tribunal might attach to Dr Pattni's opinion, but they tell us nothing about whether the Tribunal considered the opinion at all. 64 Having regard to the nature of Mr Khalil's claims and the findings and evidence set out in the Tribunal's reasons, it can be readily inferred that, if Dr Pattni's evidence on this subject had been considered, the Tribunal would have addressed it in its reasons, even if it were then to be rejected or given little or no weight. If consideration had been given to that evidence, at the very least one would expect a reference to her report in this context. After all, the report dealt with her opinion on two subjects, both primary considerations. Yet the Tribunal only adverted to her opinion on one of them. Even on a beneficial interpretation of the Tribunal's decision read as a whole, the compelling inference is that the Tribunal overlooked the evidence. 65 The more difficult question is whether the failure to consider the evidence amounted to a jurisdictional error. 66 Dr Pattni's opinion was to the following effect. It is well established that behavioural or emotional disorders in children are associated with "paternal incarceration" and the children are at greater risk if their father were to be deported (the likely outcome of refusing a visa on character grounds). The situation would become worse if their mother's health deteriorated. There is little other family support having regard to the ill-health of the maternal grandmother and the fact that Mr Khalil's family lives in Egypt. Dr Pattni went on to say: • There is an undisputed understanding in the research of child development that any trauma - especially separation anxiety and absence of critical parental figure puts the children at added risk of developmental problems. • Given the complexity of the situation (noted above), these young boys are already predisposed to a wide array of risk factors for problem behaviours that emerges from the literature of several factual circumstances that can have an undisputed impact on their future development and in particular their mental health wellbeing. • There are unanimous research findings that can support the internationalization of behavioural problems (at risk behaviours - such as aggressive and rule-breaking behaviour) with mothers who may be critically unwell and with the absence of the father. • Undisputed evidence children in studies on deportation of the father highlight the associated mental health burden and the unfavourable consequences related to their children. Both the long term and short-term impact on mental health, social and economic has been established. • The future of these children is of critical concern given the mother's ability to meet the complex emotional, financial, social, and psychological needs given her medical condition. • School participation may also negatively be impacted and experiences of mental health symptoms post-parental deportation (i.e., persistent crying, depression, sadness, anger, resentment). 67 The Minister submitted that the Tribunal accepted that Mr Khalil would play a positive role in his children's lives and contended, in effect, that it was unnecessary for the Tribunal to repeat the detail of Dr Pattni's evidence. The Minister argued that the finding of the Tribunal could not have been more favourable to Mr Khalil, particularly in the face of the submission he (the Minister) had made to the Tribunal that Mr Khalil was unlikely to play a positive parental role in the future because of the risk he might reoffend. 68 The difficulty with this submission is twofold. First, it did not grapple with the evidence itself, which was concerned with the potential impact on the children of an adverse decision - children who are already likely to have been traumatised by their separation from their father during his imprisonment and, one would infer, his absence in immigration detention. Second, while the Tribunal did find, contrary to the Minister's submission, that Mr Khalil would play a positive role in his children's future, the failure of the Tribunal to consider Dr Pattni's opinion may have caused the Tribunal to put less weight on the best interests of the children than it might have done had it taken that opinion into account. 69 Of course, ignoring material relevant only to fact-finding does not of itself give rise to jurisdictional error: Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at [97]. As we have already observed, it was not necessary for the Tribunal to refer to every piece of evidence. Moreover, there is a distinction between a failure by the Tribunal to advert to evidence which, if accepted, might have caused it to come to a different finding of fact and a failure by the Tribunal to address a contention which, if accepted, might establish the elements of a statutory claim: WAEE at [44]-[46]. 70 In determining whether it is a jurisdictional error to fail to consider certain evidence, "the fundamental question must be the importance of the [evidence] to the exercise of the Tribunal's function and thus the seriousness of any error": SZRKT at [111] (Robertson J), endorsed by the Full Court in Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431 at [70] (Kenny, Griffiths and Mortimer JJ). Moreover, "it is important not to reason that because a failure to deal with some (insubstantial or inconsequential) evidence will, in some circumstances, not establish jurisdictional error, then a failure to deal with any (substantial and consequential) evidence will also not establish jurisdictional error": SZRTK at [111]. 71 In our opinion, the evidence of Dr Pattni concerning the potential harm to the children arising from indefinite separation from their father was not insubstantial or inconsequential evidence, even if it the Tribunal might ultimately have accorded it little weight. The Tribunal ought to have taken it into account because it was expert evidence going to a consideration to which the Tribunal was bound to have regard. 72 Whether or not the error is jurisdictional also depends on whether the evidence is material, that is to say, whether there is a realistic possibility the outcome could have been different had the Tribunal taken it into account: SZMTA at [4], [45] (Bell, Gageler and Keane JJ). In determining the answer to that question, the remarks made in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v FAK19 [2021] FCAFC 153 at [174] (Kerr and Mortimer JJ, Allsop CJ agreeing at [1]) must be borne in mind: This Court cannot substitute itself in the undertaking of such an evaluative task. In undertaking an assessment on materiality, where there are reasonable and rational choices to be made in fact finding, it is not appropriate for the supervising court to attempt to place itself in the mind of the Tribunal, and speculate about what would or could have changed a particular Tribunal's mind. To do so brings the court into the merits of the decision. Rather, the supervising court must assume a Tribunal acting fairly and reasonably, with a mind open to persuasion, would give active and genuine consideration to all matters relevant to its review, including the matter which was erroneously omitted, or misconceived, and which caused it to exceed its jurisdiction. See generally Martincevic v Commonwealth [2007] FCAFC 164; 164 FCR 45 at [67]-[68], Chamoun v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 66; 276 FCR 75 at [70]; PQSM v Minister for Home Affairs [2020] FCAFC 125; 279 FCR 175 at [69]-[73]. 73 Although the Tribunal might ultimately have placed little weight on Dr Pattni's evidence for any one of a number of reasons, "a Tribunal acting fairly and reasonably, with a mind open to persuasion", could conceivably have come to a different conclusion if it had taken the evidence into account. That is because the evidence could have affected the weight it attached to the primary consideration of the best interests of the children and therefore the weight it attached to the other considerations: cf. Dunasemant v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 13 at [60] (Davies, Rangiah and Cheeseman JJ). By failing to take it into account, the Tribunal failed to complete its statutory task and so fell into jurisdictional error. 74 It follows that ground 2(a) of the amended notice of appeal is made out.

Did the Tribunal fall into jurisdictional error by failing to consider the evidence about Huntington's disease (ground 2(b))? 75 There were two aspects to this complaint. The first was the alleged failure of the Tribunal to consider the evidence relating to the susceptibility of the children's mother to Huntington's disease. The second was the alleged failure of the Tribunal to consider the evidence relating to the children's susceptibility to the same disease. The principles applying to these allegations are no different than those applying to the allegation in particular (a) and need not be repeated. 76 We reject the allegation that the Tribunal failed to consider the evidence relating to the susceptibility of the children's mother to Huntington's disease. The Tribunal expressly referred to, and engaged with, this evidence at [43] of its reasons. There, the Tribunal noted Mr Khalil's contention that his ex-wife was at risk of Huntington's disease, acknowledged that Huntington's disease would affect her capacity to care for the children but accorded the matter "limited weight" because, although she carried the gene, she had not been diagnosed with the disease and there was no expert evidence as to when she might do so. 77 The only matter mentioned by Mr Khalil in his submissions to which the Tribunal did not refer was a statement in an unsigned letter from the children's mother, dated 22 May 2018. That statement was that she had "started to develop hand tremors, become weaker and [had] continued bouts of headaches". But the Court was taken to no expert evidence attributing those symptoms to Huntington's disease or, indeed, to any disease or enduring condition. The statement must also be read in context: As for me I continue to battle on. However, I don't know for how long because I have a chance of developing Huntington Disease as I started to develop hand tremors, become weaker and have continued bouts of headaches. I had myself tested because of this and trying to keep myself fit by going to the gym is now nearly impossible. 78 The results of the test mentioned in the letter were before the Court. They predate the letter and there is no evidence of any further testing. The results were reported in a report of Dr Chirag Patel, a specialist physician and consultant clinical geneticist, to which it is clear the Tribunal had regard and which supported its opinion. In that report Dr Patel said that the results show that she had "an expansion in the [Huntington's disease] gene (47 and 17 repeats), and therefore [was] at risk of developing [Huntington's disease] at some point in [her] lifetime". Dr Patel went on to say: We recapped on some of the implications of this positive result. It is important not to focus on the exact number of repeats as individuals with the same number of repeats can present at different ages and with varying degrees of severity. It is difficult to predict the age of onset and severity of the condition even knowing the family history. I would recommend that you do not try and symptom search or assign symptoms to [Huntington's disease]. Obviously if there are any new neurological symptoms or behavioural issues then you should be referred for a formal assessment by a neurologist and/or neuropsychiatrist. 79 What is abundantly clear from this report is that Dr Patel did not attribute to Huntington's disease the symptoms which caused the mother to have the tests and did not diagnose her with Huntington's disease. Nor did Dr Patel give any indication when, if at all, the disease might develop and how quickly it might progress if it did. Mr Khalil stated in a statutory declaration dated 8 February 2018 that his wife had been diagnosed with Huntington's disease but there was no evidence to support the statement. 80 The second allegation on this topic is that the Tribunal did not consider the evidence that the children had a 50% risk of having the abnormal gene for Huntington's disease and the prospect that they themselves might develop the disease. Counsel for Mr Khalil drew attention to evidence about "the severe symptoms associated with Huntington's disease" including that juvenile Huntington's disease "usually causes death within 10 years". 81 The source of the evidence concerning the children's risk of having the abnormal Huntington's disease gene was Dr Patel's report. The source of the evidence about the symptoms of Huntington's disease and the prognosis for juvenile Huntington's disease was a random document the Court was informed had been handed to the Tribunal during the hearing. As the provenance of the document was not identified, it was not entitled to any weight. 82 Although the risk to the children was not mentioned in the Tribunal's reasons, we are not persuaded that the Tribunal overlooked it or, if it did, that in doing so it fell into jurisdictional error. While the evidence was that the risk to them of having the abnormal gene was high, the evidence went no further. There was certainly no evidence that they had juvenile Huntington's disease or that there was any reason to think they were at risk of developing it. Indeed, the evidence from Dr Patel indicated they were not. On the subject of the children he wrote: As you have an abnormal [Huntington's disease] gene, each of your children has a 50% chance of inheriting this from you. We would not offer genetic testing to them at their young age. If and when your children wish to seek genetic counselling to learn more about this disease and the risks for themselves, they can be referred as adults to a genetics service by their GP, with no commitment to complete the whole predictive testing process and genetic testing. 83 This evidence indicated that, if either child inherited the gene, there was no real risk he would develop the disease before he reached his majority. In the light of this evidence, there is no realistic possibility that, had the Tribunal considered it, the outcome would have been any different. 84 It follows that ground 2(b) of the amended notice of appeal must be rejected.

Conclusion 85 The appeal should be allowed on the new ground, which was not the subject of the application before the primary judge, that the Tribunal failed to take into account, as it should have, the evidence from Dr Pattni concerning the enhanced risk to the children of mental ill-health and behavioural problems that could ensue if Mr Khalil's visa application were refused. A writ of certiorari should therefore be issued to quash the Tribunal's decision and a writ of mandamus to require it, yet again, to consider Mr Khalil's application according to law. 86 Costs should follow the event but, in the circumstances, the costs order made by the primary judge should not be disturbed. 87 There will be orders accordingly. I certify that the preceding eighty-seven (87) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Katzmann, Banks-Smith and Rofe.

Migration Act 1958(Cth)ss 474, 499, 500, 501

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v FAK19 [2021] FCAFC 153 Murad v Assistant Minister for Immigration and Border Protection (2017) 250 FCR 510 R v NCT (2009) 26 VR 247 Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; 77 ALJR 1165; 198 ALR 59; 73 ALD 1 Taylor v The Queen (1978) 45 FLR 343; 22 ALR 599 VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588 WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 YKSB v Minister for Home Affairs [2020] FCA 476

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