Long v Minister for Immigration and Citizenship [2025] FCA 751

1. Given that it is common ground that Mr Long could not pass the character test, the Tribunal's function in the performance of the review was to determine whether there was another reason for the cancellation decision to be revoked: Act, s 501CA(4).
2. In the performance of that task, the Tribunal was obliged to comply with a Direction issued by the Minister under s 499 of the Act: Direction No. 110, Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA.
3. Paragraph 8 of the Direction set out primary considerations to be taken into account in the exercise of the power conferred under s 501CA(4) of the Act. As correctly summarised by the Tribunal, they are (Reasons, [29]):

(a) protection of the Australian community from criminal or other serious conduct;

(b) family violence engaged by the applicant (if any);

(c) the strength, nature and duration of the applicant's ties to Australia;

(d) the best interests of minor children in Australia affected by the decision; and

(e) the expectations of the Australian community.

1. Mr Long was legally represented in the proceeding before the Tribunal. Among other things, he relied on evidence given in person by his wife, Mrs Ann Long. As his grounds for judicial review impugn the Tribunal's findings and conclusions relating to Mrs Long and other family members, the summary of the Reasons that follows will focus on those topics.
2. The Tribunal recorded that it had become clear during the course of the hearing that there was a history of family violence inflicted by Mr Long, and his acceptance that the violence engaged in by him was among the primary considerations to be considered in accordance with the Direction.
3. The Tribunal addressed the considerations under headings reflecting each of the primary considerations. In doing so, it noted Mr Long's willingness to involve Mrs Long in the most recent of his offences. It referred to evidence of specific harm to Mrs Long who had "borne the brunt of his anti-social conduct throughout their lives together": Reasons, [51]. The Tribunal formed the view that "the type of harm Mr Long may cause if he were to reoffend in a manner similar to his past offending is very serious psychological, physical, financial and systemic harm to his family, and to the wider Australian community": Reasons, [53]. The Tribunal noted that at the time of the hearing Mr Long's mother was 81 years old and very unwell: Reasons, [58]. It described the likelihood of him engaging in further criminal or serious conduct as high: Reasons, [61].
4. The Tribunal considered the family violence perpetrated by Mr Long over six pages in its Reasons, commencing with a reference to Mr Long having been convicted of twice breaching a Violence Restraining Order (VRO) in July 2009. It placed little weight on those offences because of the lack of detail in the evidence concerning them.
5. It went on to observe that Mrs Long had herself been sentenced to a term of imprisonment for her role in the offences that had led to the cancellation decision. It referred to the remarks of the sentencing Judge to the effect that Mrs Long had been subjected to domestic violence perpetrated by Mr Long over many years, resulting in periods of separation. The sentencing Judge referred to a letter from their son confirming that he had witnessed abusing and controlling behaviour towards Mrs Long and describing Mr Long as a "large ego-carrying individual with [a] menacing heroin addiction". The sentencing Judge expressed satisfaction that Mrs Long had been subjected to domestic violence.
6. The Tribunal went on to extract the following statements Mrs Long had made to the Tribunal at a hearing concerning the cancellation of her own visa on character grounds (Reasons, [69]):

1. I am taking control of my life by not allowing my husband Brian to control me anymore. Through Standing on Solid Ground I have learned about my self-esteem and confidence in how to stick up for what I know is right. I have also learned the importance of being around positive people who bring out the best in yourself rather than those who lead you down negative paths....

9 ... I learned to create a better foundation for implementing life changes and career changes, by being safe and secure, and building self-confidence. It taught me how to think through the consequences of a decision I make and the importance of standing up for what I know is right. I learnt that making no decision can be just as bad as making a bad decision.

10. I can honestly say that for the past four years I have noticed a big change and growth in myself, my self-worth and confidence has grown, and I am no longer afraid to speak my mind and follow through. My friends and family have also told me they have noticed these changes in me.

...

13. If I was to be put in a bad situation again with my husband Brian or other people (whether that is him going back to drugs or criminal offending, or domestic violence), the first thing I would do is call the police, then I would contact my support network (my children, my friend Adele and my counsellor Chelsea) for help. I also have a code word which I can say to my support network so that they would [know] that I was in trouble or that something was happening that I didn't want to go along with, and that I need their help quickly. When the police arrive, I would ask them to provide me with a 72-hour VRO so that would provide me enough time to prepare to go to court and have a two-year VRO put in place.

14. I will not go along with or become involved with any negative or criminal conduct in the future. My support network, including my counsellor, are there for me so that I know I have a way away from Brian.

15. I cannot predict the future regarding my husband as at this moment the only people that matter to me are my children and grandchildren. I have not provided a statement of support for Brian in relation to his current visa process as I am prioritising myself and my children and grandchildren. I'm proud of myself and what I have learnt about myself and how I can make positive decisions in the future.

1. The Tribunal referred to oral evidence Mrs Long gave at the earlier hearing to the effect that Mr Long used to tell her what to do and that she would listen and do what he said because she was afraid of him. It noted findings that Tribunal had made on her application, including a finding that the relationship had been coercive over the years and that Mrs Long had had difficulty standing up to her husband.
2. The Tribunal referred to police files and VRO's relating to Mr Long. In relation to a VRO made in January 2009, it said (Reasons, [75]):

In this matter neither Mr nor Mrs Long gave evidence which assisted me in understanding anything about the circumstances of her the obtaining the VRO in January 2009, when the question arose in their respective cross-examinations. Both of them gave evidence that at the time the VRO was taken out, in January 2009, Mrs Long was residing with someone called Sam, the then-partner of one of their sons, and that Sam, who was said by both to suffer from bi-polar disease, had put pressure on Mrs Long to obtain a VRO. Neither could apparently recall any details of what precipitated Mrs Long's request of the police for a VRO. My impression of their evidence in respect to this is that it was entirely unreliable, having an aura of concoction about it and sounding very much like a rehearsed 'script'.

(footnotes omitted)

1. The Tribunal referred to police reports and other evidence concerning assaults inflicted by Mr Long on his daughter, one incident occurring when the daughter had attempted to intervene on an assault he was inflicting on Mrs Long.
2. The Tribunal referred to inconsistencies in Mrs Long's oral evidence, as follows:
   1. Mrs Long's evidence during cross examination evolved from an outright denial of any physical violence, to an admission that he was violent 'maybe when we were younger'. She denied she was scared of him at any point and said she was never afraid of him. She denied he was controlling of her.
   2. When confronted with her evidence from her AAT hearing in March, Mrs Long initially attempted to explain the difference by saying her lawyer wrote the statement. She then said that she has seen how Mr Long has changed since she gave the earlier evidence. When she was confronted with the sentencing remarks from her August 2021 conviction, including what her son had written to the Judge, she accepted that she did say she had suffered domestic violence, to the person who wrote the pre-sentence report, and she was aware of her son Brian's letter to the Judge. She also accepted that the recording of her evidence given to the AAT in March 2024 was accurate. Ultimately, when asked whether I should rely on her earlier evidence in March 2024, or her statements to me at the hearing, she said I should rely on her evidence in March 2024.
   3. During re-examination she said that her understanding was that domestic violence meant physical violence, that in 2021 she was angry and blamed Mr Long for roping her in to the offending as she was facing a long prison sentence, she was clean and he was selling and using drugs and she was angry at him. I do not accept this explanation in light of the findings made by the sentencing Judge and the Tribunal.

1. The Tribunal said that it had accepted what Mrs Long had said in the earlier Tribunal hearing as more likely to be accurate, "given Mr Long was not present at that time", and also accepted the truth of the remarks of the sentencing Judge in the criminal proceedings. It said that whilst there was clearly a history of domestic violence, the Tribunal could not be sure that the written statement Mrs Long had provided on the current application for review or her initial denials of violence and fear were not the product of the documented abusing and controlling behaviour of Mr Long. It went on to find that Mr Long had committed family violence over a long period of time, culminating in attempts to persuade Mrs Long to give inaccurate evidence at the hearing, including a "concocted" story about Sam. It said that the long history of family violence had a devastating effect on Mrs Long's life and that of other family members, leading Mrs Long into committing serious criminal offences with him as recently as 2020. It concluded that consideration weighed strongly against revocation of the cancellation decision.
2. When considering the strength, nature and duration of Mr Long's ties to Australia, the Tribunal referred to his extended family residing here, comprising his mother, sisters, brothers-in-law, adult children (all born in Australia), grandchildren, nieces and nephews. It noted that Mrs Long had followed him to Australia and that they had married here in 1983. After referring to Mr Long's submissions about the nature and strength of the family relationships, the Tribunal said that it accepted that he genuinely cared very much for his family members and that he had contributed to their lives. However, it said that some of the evidence of his family members was "at odds with the objective reality of his life". It did not place much weight on a letter of support provided by Mrs Long, for reasons it had set out earlier. It did not accept Mrs Long's description of him as a role model for her and her children in light of his criminal record and long-term drug addiction. It referred to evidence of Mr Long's sister asserting a need for Mr Long to stay in Australia to assist with the care of their mother. On that topic, the Tribunal said (Reasons, [88(c)]):

... This evidence must be viewed in the context of Mrs Catherine Long being presently aged 81, being in a wheelchair and suffering from extremely serious health conditions including emphysema, and having had regular admissions to intensive care, with Mr Long's earliest release date being January 2029, if he were to get parole.

(footnote omitted)

1. The Tribunal described the evidence of Mr Long's son as "most troubling", the son having described Mr Long as "a responsible and law-abiding individual". That description, the Tribunal said, stood in stark contrast to the picture presented by Mr Long's lengthy criminal record and the son's evidence submitted in support of his mother's sentencing, describing Mr Long as a controlling, ego-carrying heroin addict. The Tribunal found that Mr Long had co-opted family members into his criminal activities. It referred again to Mr Long's criminal history (the first offences occurring soon after his arrival in Australia) before concluding that the strength, nature and duration of his ties to Australia weighed "moderately in favour" of revocation of the cancellation decision.
2. The Tribunal went on to consider the remaining primary considerations and other considerations affording them varying weight. It concluded that the three primary considerations of the protection of the Australian community, family violence and the expectations of the Australian community outweighed other considerations, and so affirmed the decision under review.

1. By his first ground of review, Mr Long contends that the Tribunal committed jurisdictional error by denying him procedural fairness in that it:

... failed to direct the Applicant's mind to a critical issue, namely whether the credibility of all the evidence of his wife was undermined due to her being a victim of family violence perpetrated by the Applicant, in circumstances where the conclusion reached by the Tribunal on that issue was not obvious.

1. The particulars to that ground allege that the Tribunal had determined that not much weight should be placed on the evidence Mrs Long had given in support of him. It is alleged it had not been suggested to either Mr or Mrs Long during their evidence that they had concocted their evidence about Sam, nor that Mrs Long's written statement was the product of Mr Long's abusive or controlling behaviour towards her, nor that the "credibility of all of the evidence of" Mrs Long was undermined due to her being a victim of the violence he had perpetrated on her.
2. The effect of Mr Long's submission is that in order for the Tribunal to discharge its obligation to afford procedural fairness it was necessary for it to alert him to the circumstance that the reliability of the evidence of Mrs Long was in issue and to alert him that it might form the view that her evidence might be undermined by reason of the history of violence inflicted on her.

1. In the performance of its review function the Tribunal was bound to observe the rules of procedural fairness: CNY17 v Minister for Immigration and Border Protection [2019] HCA 50; (2019) 268 CLR 76 (at [16]). The Minister acknowledges that a failure to discharge that obligation would constitute jurisdictional error.
2. The question is what the rules of procedural fairness required, having regard to the statutory context and the facts and circumstances of the case. In a passage approved by the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 (at [29]), the Full Court explained in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 1074; (1994) 49 FCR 576 (at 591 - 592):

Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker 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. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question. ...

1. See also Degning v Minister for Home Affairs [2019] FCAFC 67; (2019) 270 FCR 451 (at [12]).
2. The existence and extent of family violence inflicted by Mr Long was plainly in issue in the proceeding before the Tribunal as a primary consideration expressly mandated in the Direction. It was a topic about which the Tribunal had a number of sources of evidence, some of which was adduced by Mr Long himself. The sources of evidence included Mrs Long's written letter, material emanating from a prior Tribunal hearing and criminal proceedings and the oral evidence of both Mr and Mrs Long, all of which must be taken to have been known by Mr Long as a legally represented review applicant.
3. Mrs Long was a witness called by Mr Long in the presentation of his case and as a legally represented applicant he could have no reasonable expectation that the evidence she gave in support of the revocation of the cancellation decision would be accepted at face value.
4. In her letter of support, Mrs Long asserted that she had "unwavering support" for Mr Long and said that he had "demonstrated immense dedication and love" to her and their children. She asserted that Mr Long had made a remarkable transformation and that he had always kept her grounded and helped her to be strong. The Minister acknowledges that the Tribunal's conclusion that those assertions should be given little weight is a conclusion adverse to Mr Long.
5. Contrary to the particulars to this ground, the Tribunal did not conclude that the credibility of all of the evidence of Mrs Long was undermined due to her being a victim of family violence perpetrated by Mr Long. The Tribunal was faced with contradictory statements from Mrs Long emanating not only from the statements she had made to the Tribunal but from prior statements she had made in other migration and criminal law proceedings. The Tribunal did not reject all of that evidence by reason of Mrs Long being a victim of domestic violence, perpetrated by Mr Long. Rather, it preferred and relied upon statements she had made on occasions when Mr Long was not present.
6. Moreover, even if there had been a wholesale rejection of the evidence given by Mrs Long, a closer examination of the proceeding before the Tribunal shows that the conclusions about her credibility were founded on issues that obviously arose and in respect of which Mr Long, through his legal representative, had opportunities to make submissions about. As the Minister correctly submitted, it formed a central part of the Tribunal's fact finding function to accept, reject, or attribute such weight as it saw fit to the evidence advanced by the parties. The possibility that the Tribunal might afford little weight to the evidence Mr Long adduced in relation to his wife was "obvious" in the relevant sense when considered in the context of the hearing as a whole.
7. The Tribunal directly raised with the parties' representatives that the claims of family violence had the potential to effect Mrs Long's oral evidence at the hearing. Those measures were described in terms that are not challenged as inaccurate (Reasons, [72]):

As a result of the matters set out above arising from Mrs Long's sentencing and her own revocation application in the Tribunal earlier in 2024, I put in place some measures to protect and assist her in giving oral evidence. As Mr Long appeared throughout the proceedings by video, I ensured the video camera was screened during Mrs Long's oral evidence, so that she could not see him, and he could not see her. I also provided her with a hand signal to use in the event she felt unsafe during her evidence, which Mr Long was not aware of. Mrs Long did not avail herself of the signal.

1. At the time of putting in place those arrangements, the Tribunal said:

... I just don't want Ms Long to be in a position where she's looking at her husband when she's being cross-examined about matters that she, allegations she's made about him which I assume will come up in cross examination. I don't have a problem with Mr Long hearing the evidence. But I have a difficulty with the potential intimidatory effect of she having to look at him whilst it's happening.

1. That statement, together with the modified procedure the Tribunal adopted for Mrs Long to give evidence ought reasonably to have put Mr Long's legal representative on notice that the Tribunal was concerned about the risk of coercion or intimidation by Mr Long in respect of the evidence that might be given by his wife. Whether or not the Tribunal was justified in that concern is not to the point. The Court is presently concerned to identify whether Mr Long was afforded a fair opportunity to make submissions to the Tribunal about specific matters affecting its assessment of Mrs Long's reliability as a witness. I accept the Minister's submission that the circumstances made it obvious that the Tribunal may form an adverse view about the reliability of at least some of Mrs Long's evidence by reason of her being in a violent relationship with the person about whom she was giving evidence.
2. In addition, Mrs Long in fact gave inconsistent evidence about the history of family violence of sufficient seriousness that a discussion ensued between the Tribunal and the parties' legal representatives about the need to give her a perjury warning, and the warning was in fact given. An issue obviously arose as to whether Mrs Long had given false evidence in other proceedings, and the Tribunal expressly informed the parties that submissions could be made in connection with any such inconsistencies.
3. Toward the conclusion of her cross-examination, Ms Long accepted that the evidence she had previously given in the earlier Tribunal hearing about her own migration status should be accepted over the inconsistent evidence she had given before the Tribunal in which she had sought to deny or minimise the conduct. Her re-examination concluded with this statement:

... I just don't want to incriminate myself, you know? Yes, I'm spinning out.

1. In closing submissions, Mr Long's legal representative expressly acknowledged that the Tribunal "might have some difficulty with aspects of [Mrs Long's] evidence given the inconsistent statements". Moreover, in an exchange with the Minister's representative, the Tribunal directly raised the history of domestic violence as providing a plausible explanation for the inconsistencies in Mrs Long's evidence. The exchange went as follows:

COUNSEL: These are the inconsistencies which we say really cast doubt on the evidence which Mrs Long gave to the tribunal to the extent that it didn't support her agenda at the time that she gives [sic] the evidence.

DEPUTY PRESIDENT: You mean her agenda yesterday.

COUNSEL: Yes.

DEPUTY PRESIDENT: Well, there is a plausible explanation for that, of course.

COUNSEL: Well, none was given by the applicant.

DEPUTY PRESIDENT: Well, in the context of what the domestic violence allegations broadly are, one would be surprised if she had given that in evidence. I mean we did what we could to ameliorate those issues by masking Mrs Long and giving her a signal in the event that she felt intimidated. But the reality was that she would never had been fully free in her mind to make those allegations with Mr Long on the other end of the audio.

COUNSEL: But the fact is she has made those allegations in the past.

DEPUTY PRESIDENT: Without him.

COUNSEL: Without him, that's right. And that's particularly, in that statement that was submitted to the tribunal.

1. The issue as to whether Mr and Mrs Long had "concocted" the story about Sam was also expressly raised by the Tribunal during the course of the hearing. In the presence of the parties, the Tribunal said:

... My impression, and I'll be frank about this, is that that looked a little, and sounded concocted as between Mr and Mrs Long. The evidence was too similar. ...

1. It is difficult to ascertain what more the Tribunal could have said in order to disclose to Mr Long and his legal representative a finding going to credibility that was then in its contemplation. In light of the authorities referred to earlier in these reasons there is some doubt as to whether the Tribunal was obliged at all to disclose (whether frankly or otherwise) the impressions it had formed of witnesses by reference to their demeanour in the witness box or for that matter by reference to internal inconsistencies or prior inconsistent statements affecting a witness's evidence. For the resolution of this ground of review it is sufficient to find that the subject matter of the Tribunal's credibility findings leading it to place little weight on Mrs Long's supportive statements were either expressly raised by it in the course of the hearing or were patently obvious by reference to the issues to be decided and the manner in which the hearing unfolded.

1. By this ground Mr Long contends that the Tribunal committed jurisdictional error by failing to comply with paragraph 8.3(1) of the Direction, specifically by failing to consider the impact of its decision on Mr Long's immediate family members in Australia.
2. Paragraph 8 of the Direction required the Tribunal to have regard to the strength, nature and duration of a review applicant's ties to Australia so far as that consideration was relevant to the review. Paragraph 8.3(1) provided:

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.

1. In support of this ground of review, Mr Long submitted that in its consideration of the strength, nature and duration of his ties to Australia the Tribunal had made no reference to paragraph 8.3(1) of the Direction and that it had not in fact given any consideration to the impact of the decision on his family members. It was submitted that the Tribunal had focused on Mr Long's shortcomings as matters undermining his contribution to the Australian community and the nature of his ties to Australia, but had failed to make findings on whether and how Mr Long's family members would be impacted should he be removed from Australia.
2. That argument must be rejected for five reasons.
3. First, the Tribunal was not obliged to make express reference to any particular paragraph of the Direction. The absence of a specific reference to paragraph 8.3(1) does not of itself prove that the Tribunal failed to consider the subject matter referred to in it. Nor was the Tribunal required to specify the weight attributed to each and every sub-factor contributing to the broader consideration, nor to refer to every piece of evidence and every contention made by Mr Long: Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352, Griffiths, White and Bromwich JJ (at [45]).
4. Secondly, whether the Tribunal considered the subject matter is a question of fact to be discerned having regard to the Reasons, considered sensibly and as a whole. This Court has repeatedly said that a decision-maker may draw upon factual findings set out in connection with a particular consideration identified in the Direction without repeating those facts in its evaluation of other considerations. Accordingly, whether the Tribunal failed to consider the impact of its decision on (for example) Mrs Long is a question to be answered having regard to the contextual findings it had earlier made about the impact of the violent relationship upon her. The relevant findings were that Mr Long had a devastating effect on Mrs Long's life and that she was unlikely to resume married life with him upon his release from prison and was not committed to returning to the United Kingdom with him should he be deported.
5. Thirdly, Mr Long's grandchildren were given separate consideration in another part of the Reasons, the Tribunal having regard to the best interests of minor children in Australia as a discrete primary consideration. The Tribunal concluded that the grandchildren's interests weighed strongly in favour of a decision restoring the visa.
6. Fourthly, the Tribunal doubted that Mr Long could assist with his elderly mother who was very ill, given that his earliest release date is January 2029. It is implicit that it did not consider that Mr Long's removal from Australia would impact upon her.
7. Fifthly, there is simply no warrant for the assertion that the impact of the decision on remaining family members was not considered. The Tribunal directed itself that the impact on family members was a matter to be considered. It listed all of the family members and identified their relationship with Mr Long. It expressly referred to the fact that they had provided statements in support of the application for review and expressed the view that some of that evidence should not be accepted. The Tribunal said that it considered the things they had said about Mr Long to be contradicted in some respects by his objective life circumstances, characterised as they were by a long history of criminal offending into which family members had been co-opted, as well as the surrounding context of family violence dealt with earlier in the Reasons. The Tribunal plainly rejected assertions that Mr Long stood as a role model for his grandchildren and identified a significant discrepancy between the positive things Mr Long's son had said about him and the highly disparaging statements he had made at an earlier time. It accepted that Mr Long had contributed to his family members' lives and afforded the whole of the criterion in paragraph 8 of the Direction moderate weight. That conclusion reflects its rejection of some parts of the family members' statements together with an acceptance that their lives may nonetheless be impacted.
8. The application for review should be dismissed with costs.

I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Charlesworth.