Ground 1
7 Ground 1 is that the Tribunal's decision is affected by jurisdictional error because the Tribunal applied the wrong legal test or failed to take into account a relevant consideration, or took into account an irrelevant consideration, or otherwise constructively failed to exercise jurisdiction. That ground is said to be supported by four particulars.
8 Particular (a) is as follows:
(i) The wife of the Applicant gave evidence as a witness for the Applicant. During the course of her evidence, the Tribunal asked questions about her opinion as a victim of two common assaults and a breach of an AVO. The Tribunal refers to her evidence at paragraph 44. The Tribunal makes a finding at paragraph 86 that the impact on her as a victim was "traumatic". In paragraphs 129-133, the Tribunal uses this evidence against the Applicant, finding that it weighs against revocation.
(ii) In doing this, the Tribunal turned the witness for the Applicant into a witness against the Applicant. The Tribunal did not preface her questions by saying Mrs Korat did not need to answer. The Tribunal did not ask the representatives their view on whether this was an appropriate line of questions.
(iii) The Tribunal did not put to Mr Korat or his representative that Mrs Korat had given evidence that was harmful to his case and whether either wanted to comment on or respond.
9 This ground is based on the following questions which were put by the presiding member of the Tribunal to Mrs Korat at p 111 of the transcript:
Do you think a person who is capable and has been convicted of domestic violence is a good role model for their children?
Substance abuse, is that a good role model for the children?
The other issue that I wanted to raise, and it is a sensitive one, one of the considerations that I have to take into account is victim, the impact of the offending on the victim. Your [sic] one of the victims here, in terms of the domestic violence offending and I want to give you the opportunity to tell the tribunal the impact of that domestic violence has had on you, as a woman, as a person?
10 Particular (a) of Ground 1 alleges effectively that the Tribunal erred by using the applicant's witness, being his wife, Mrs Korat "against him" and did not tell Mrs Korat she did not have to answer its questions, and that the Tribunal erred by not asking the applicant's legal representative whether the line of questioning was appropriate or by not telling them that Mrs Korat had given evidence that was harmful to his case and asking whether either wanted to comment or respond.
11 The Tribunal is under no duty to provide a "running commentary" upon what it thinks about evidence that is given; on the contrary, to adopt such a course would be likely to run a serious risk of conveying an impression of prejudgment: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] 8 HCA 63; (2006) 228 CLR 152 at [48] (Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ). While procedural fairness may require the Tribunal to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made, and to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material, the Tribunal is not obliged to expose mental processes or provisional views to comment before making the decision in question: Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 591-592 (Northrop, Miles and French JJ). Accordingly, the Tribunal was under no obligation to tell the applicant or his representative how it proposed to make findings regarding Mrs Korat's evidence, including whether it proposed to attribute that evidence weight in favour of or against revocation.
12 It was clear how Mrs Korat's evidence was relevant to the considerations in Direction 99. That direction specifically requires the Tribunal to consider acts of family violence (para 8.1.1(1)(a)(iii)), the cumulative effect of repeated acts of family violence (para 8.2(3)(b)), and the impact of the revocation of the visa cancellation on victims (para 9.3). There is necessarily an overlap between these considerations, and certain evidence may relate to multiple considerations under Direction 99: Demir v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 870 at [23] (Kennett J). The impact of the domestic violence offences on Mrs Korat was an obvious and relevant matter for the Tribunal to consider under multiple considerations under Direction 99.
13 In posing the questions which I have set out above, the Tribunal clearly put the applicant on notice that the impact of the domestic violence offences on Mrs Korat was relevant to the Tribunal's decision. In any event, it cannot be suggested that the applicant was not on notice of the relevance of Mrs Korat's evidence. The impact of the applicant's family violence offences was referred to in the delegate's decision, the applicant was provided with a copy of Direction 99 with the documents provided under s 501G of the Act, family violence conduct was raised in the Minister's statement of facts, issues and contentions, and the issue was addressed in the applicant's submission to the Tribunal. Contrary to the applicant's submission, there is no obligation on the part of the Tribunal to put Mrs Korat's evidence to the applicant and seek his comment or response. Accordingly, the Minister submits, and I accept, that the Tribunal was not obliged to inform the applicant that Mrs Korat's evidence may be afforded weight against revocation, including in relation to the impact on victims, as this evidence was an apparent issue under Direction 99 and was an obvious conclusion to reach on the known material.
14 Further, the Tribunal was not required to ask the applicant's representative whether its questions were appropriate. The proceedings before the Tribunal were inquisitorial in nature: Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 at [76] (Gaudron and Gummow JJ). The Tribunal was entitled to ask questions relevant to its decision-making in order to satisfy itself of the merits of the application: NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328; (2004) 214 ALR 264 at [124]-[125] (Allsop J, with whom Moore and Tamberlin JJ agreed). To the extent that the applicant is complaining about a failure to afford procedural fairness, the applicant was represented by a solicitor at the hearing and he could have objected to the Tribunal's question, but did not. The applicant's representative also had an opportunity to re-examine Mrs Korat after the Tribunal's questions, and to make closing submissions at the conclusion of the hearing. Accordingly, the applicant was clearly afforded an opportunity to give evidence and make arguments regarding the relevant issues in dispute, as required by the Act: SZBEL at [33]. The applicant has not identified any basis on which it could be said that the Tribunal was required to advise Mrs Korat that she did not have to answer its questions. Mrs Korat was a willing witness who was required to answer the Tribunal's questions pursuant to s 62(3) of the Administrative Appeals Tribunal Act 1975 (Cth), and the exception in s 62(4) as to self-incrimination did not apply.
15 To the extent that this ground alleges that the Tribunal was obliged to find that Mrs Korat's evidence only weighed in favour of revocation, and that the Tribunal was prohibited from using her evidence "against" the applicant, including in respect of the impact on victims' consideration, this ground is misconceived. The weight to be afforded to the relevant considerations under Direction 99 is a matter for the Tribunal, not for the Court: Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; (2010) 243 CLR 164 at [33] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ); TGWR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 200 at [25] (Lee, SC Derrington and Cheeseman JJ). This ground is no more than a disagreement with the Tribunal's decision and is an invitation to engage in impermissible merits review: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 (Brennan CJ, Toohey, McHugh and Gummow JJ).
16 Particular (b) of Ground 1 is as follows:
At paragraph 110, there is an exchange between the Tribunal and Mrs Korat. At paragraph 111, in the context of the best interests of the children, the Tribunal states, "However, even on her own evidence, Ms Korat recognised that aspects of the Applicant's behaviour does not accord with being a role model for children." In doing so, the Tribunal asks itself the wrong question. Despite all the evidence, including a letter from the daughter which is not referred to in the decision despite having been referred to in oral evidence, the Tribunal at paragraph 114 only gives "some weight" to the best interests of the two children.
17 Under Direction 99, the Tribunal was required to consider the best interests of minor children in Australia affected by the decision. This included consideration of the following factors: "the extent to which the non-citizen is likely to play a positive parental role in the future" (para 8.4(4)(b)), "the impact of the non-citizen's prior conduct … and whether that conduct has, or will have a negative impact on the child" (para 8.4(4)(c)), and "whether there are other persons who already fulfil a parental role in relation to the child" (para 8.4(4)(e)).
18 The Tribunal's observation regarding Mrs Korat's evidence does not amount to the Tribunal asking itself the wrong question. The Tribunal's reasoning at [111] was as follows:
The Tribunal does not wish to sound harsh or take the comments out of their context. However, even on her own evidence, Ms Korat recognised that aspects of the Applicant's behaviour does [sic] not accord with being a role model for children. The evidence demonstrates that the drinking issue has not resolved. The evidence demonstrates this as Mr Sheehan acknowledged the Applicant has shown "that under certain circumstances, he remains vulnerable to resorting to alcohol use and then engaging in aggressive behaviour, which makes this a live issue, not a historical issue".
Those observations were clearly relevant to the factors under para 8.4(4), and were made in the context of the Tribunal referring to the "very negative aspects of the Applicant's conduct" (at [109]). It was open for the Tribunal to consider Mrs Korat's evidence regarding whether the applicant was a role model for the children as this had a clear bearing on whether the applicant was likely to play a positive parental role in the future, or whether his conduct would have a negative impact on the children. The Tribunal otherwise identified the relevant considerations under Direction 99 at [103]. Accordingly, it cannot be said that the Tribunal asked itself the wrong question. The applicant's complaint about the weight afforded to the best interests of the child is an attempt to argue with the merits of the Tribunal's decision, and is not an available ground of judicial review.
19 Particular (c) of Ground 1 is as follows:
At paragraph 113, the Tribunal states:
The family violence and the alcohol misuse present serious challenges to the proposition that revocation is in the children's best interest. Moreover, the evidence before the Tribunal indicates that Ms Korat, albeit with some difficulties as a single parent, has cared for the children all their lives, including during the Applicant's incarceration and detention and she has fulfilled the parental role.
In doing so, Tribunal asks itself the wrong question in making findings on the best interest of the children. It finds the best interests of the children as served by them never having personal contact with their father, and Mrs Korat can look after them. This finding is also illogical and irrational.
20 This ground is misconceived. The Tribunal made no findings that the best interest of the children were served by them never having personal contact with their father, and that Mrs Korat can look after them. Accordingly, any complaint regarding the logicality or rationality of the Tribunal's decision cannot be sustained when the Tribunal made no such finding. In any event, for the reasons given above, the Minister contends, and I accept, that it was open for the Tribunal to consider the negative impacts on the applicant's children of his future conduct, including his family violence and alcohol use, and the extent to which he would play a positive parental role in the future, and already fulfilled a parental role in relation to the applicant's children. The Tribunal therefore did not ask itself the wrong question. Further, the Tribunal's reasons were open to it. There is thus no merit in this ground.
21 Particular (d) of Ground 1 is as follows:
The Tribunal failed to exercise jurisdiction because it did not find that there is, or is not, another reason to revoke the mandatory cancellation of the Applicant's visa as required by s.501CA(4)(b)(ii) of the Act.
22 At [12], the Tribunal quoted the text of s 501CA(4), which sets out the alternative grounds for revocation of the Minister being satisfied that the person passes the character test, or that there is another reason why the original decision should be revoked. As the Tribunal stated at [24], it was not in dispute that the applicant did not meet the character test. The Tribunal then stated the issues as being whether the cancellation of the Visa should be revoked, which was plainly a reference to whether there was "another reason" as to why the original decision should be revoked. There is no doubt that the Tribunal was conscious of that being the operative test under s 501CA(4), not only because the Tribunal had quoted that provision, but also because at [138] the Tribunal made express reference to the question whether there was "another reason" why the decision to cancel the Visa should be revoked. The applicant's legal representative at the hearing before me accepted that it was obviously implicit in the Tribunal's reasoning that there was not another reason to revoke the mandatory cancellation. Accordingly, a sensible reading of the Tribunal's reasons is that the Tribunal did in fact find that there was not another reason to revoke the mandatory cancellation of the Visa as required by s 501CA(4)(b)(ii) of the Act.