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

Legislative provisions 7 Section 501(3A) of the Migration Act provides that the Minister must cancel a visa that has been granted to a person if: (a) the Minister is satisfied that the person does not pass the character test because of the operation of: (i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); . . .; and (b) the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. 8 Section 501(6)(a) of the Migration Act provides that a person does not pass the character test if the person has a substantial criminal record (as defined by subsection (7)). Section 501(7)(c) provides that a person has a "substantial criminal record" if the person has been sentenced to a term of imprisonment of 12 months or more. It is not in dispute that the appellant did not pass the character test in s 501(3A)(a)(i) of the Migration Act, because of the operation of subs (6)(a) on the basis of subs (7)(c). 9 Section 501CA of the Migration Act relevantly provides that: (1) This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person. … (3) As soon as practicable after making the original decision, the Minister must: (a) give the person, in the way that the Minister considers appropriate in the circumstances: (i) a written notice that sets out the original decision; and (ii) particulars of the relevant information; and (b) invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision. (4) The Minister may revoke the original decision if: (a) the person makes representations in accordance with the invitation; and (b) the Minister is satisfied: (i) that the person passes the character test (as defined by section 501); or (ii) that there is another reason why the original decision should be revoked. 10 Section 499(1) of the Migration Act provides that the Minister may give written directions to a person or body having functions or powers under the Migration Act if the directions are about the exercise of those functions or powers. By s 499(2A), a person or body must comply with a direction made under s 499(1). On 22 December 2014, the then Minister made Direction 65, which came into force on 23 December 2014, and which applied to the Decision in respect of the appellant. It has since been replaced by Direction No 79 - Migration Act 1958 - Direction under section 499: Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA as from 28 February 2019. 11 Paragraph 6.3 of Direction 65 provides as follows: 6.3 Principles (1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community. (2) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere. (3) A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia. (4) In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa. (5) Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age. . . . (7) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen's visa should be cancelled, or their visa application refused. 12 Paragraph 7(1)(b) of Direction 65 stipulates that, informed by the principles in paragraph 6.3 above, a decision-maker must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen's visa will be revoked. 13 Paragraph 8(1) stipulates that decision-makers must take into account the primary and other considerations relevant to the individual case (which, in the case of a decision whether to revoke the mandatory cancellation of a non-citizen's visa, are articulated in Part C). Paragraph 8(3) of Direction 65 provides that both primary and other considerations may weigh in favour of, or against, whether or not to revoke a mandatory cancellation of a visa. Paragraph 8(4) provides that primary considerations should generally be given greater weight than the other considerations. Paragraph 8(5) provides that one or more primary considerations may outweigh other primary considerations. 14 Part C of Direction 65 sets out those considerations which a decision-maker must take into account in deciding whether to revoke the mandatory cancellation of a visa under s 501CA(4). These considerations are divided into "primary considerations" and "other considerations". 15 Paragraph 13(2) of Direction 65 provides that the following considerations are "primary considerations": (a) protection of the Australian community from criminal or other serious conduct; (b) the best interests of minor children in Australia; and (c) expectations of the Australian community. 16 Paragraph 13.1 of Direction 65, which corresponds to the primary consideration in paragraph 13(2)(a), provides as follows: 13.1 Protection of the Australian community (1) When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Mandatory cancellation without notice of certain non-citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved. (2) Decision-makers should also give consideration to: a) The nature and seriousness of the non-citizen's conduct to date; and b) The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct. . . . 13.1.2 The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (1) In considering whether the non-citizen represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable. (2) 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 available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken). 17 Paragraph 13.3 of Direction 65, which corresponds to the primary consideration in paragraph 13(2)(c), provides as follows: 13.3 Expectations of the Australian Community (1) The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government's views in this respect. 18 Paragraph 14(1) of Direction 65 provides a non-exhaustive list of "other considerations" which must be taken into account by a decision-maker where relevant. These considerations include, but are not limited to: international non-refoulement obligations; strength, nature and duration of ties; impact on Australian business interests; impact on victims; and extent of impediments if removed. 19 Paragraph 14.2 provides, relevantly: 14.2 Strength, nature and duration of ties (1) The strength, nature and duration of ties to Australia. Reflecting the principles at 6.3, decision-makers must have regard to: … b) The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non-citizen's immediate family in Australia (where those family members are Australian citizens, permanent residents or people who have a right to remain in Australia indefinitely).

Applicable principles 20 The primary judge set out the principles relevant to determining whether the Tribunal failed to have regard to the effect of non-revocation on Ebony Bond in the following terms (Reasons [98]): (1) A requirement, whether imposed by common law or by statute, to consider a matter involves a decision-maker engaging in an 'active intellectual process' directed at that matter: Tickner v Chapman (1995) 57 FCR 451 at 462 (Black CJ); NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134; (2005) 147 FCR 51 at [46] (Hill J), [212] (Madgwick J); and Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352 at [45] (Griffiths, White and Bromwich JJ). (2) 'What is required is the reality of consideration by the decision-maker. On judicial review the Court must therefore assess, in a qualitative way, whether the decision-maker has as a matter of substance had regard to the representations put': Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216; (2018) 267 FCR 643 at [45] (Rares and Robertson JJ). (3) '… [W]here decisions might have devastating consequences visited upon people, the obligation of real consideration of the circumstances of the people affected must be approached confronting what is being done to people. This obligation and the expression of its performance is not a place for decisional checklists or formulaic expression': Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; (2018) 267 FCR 628 at [3] (Allsop CJ). (4) The degree of consideration which is necessary for the jurisdiction to have been exercised in a manner which is authorised is affected by the centrality to the issues of the matter in question, and the prominence the matter assumed: Singh v Minister for Home Affairs [2019] FCAFC 3; (2019) 267 FCR 200 at [37(1)]. While this was not said in the context of a matter which was specifically and expressly made mandatory by statute (or a direction with statutory authority), it seems to me that it still applies, provided proper allowance is made for the fact that the mandatory nature of the specific consideration will itself affect its centrality and prominence. In the end it is, with respect, a dictate of common sense; if not much is said about a matter in the material before the Tribunal, passing reference to it in reasons will be less likely to support the inference that it was not given adequate consideration. (5) Section 43(2B) of the Administrative Appeals Tribunal Act 1975 (Cth), which requires the Tribunal to include in its reasons its findings on material questions of fact, only requires the Tribunal to set out the findings of fact which in its opinion are material: Appellant V324 of 2004 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 259 at [8] (Hill and Allsop JJ). (6) So if the Tribunal's reasons do not mention a factor, the consideration of which is mandatory under Direction 65, it does not necessarily follow that it has failed to consider that factor. Section 43(2B) entitles the court to infer that any matter not mentioned in the Tribunal's reasons was considered by the Tribunal not to be material: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [69] (McHugh, Gummow and Hayne JJ), a case about s 430 of the Migration Act, but s 43(2B) of the Administrative Appeals Tribunal Act is not materially different. (7) It seems to me that the same can be said of the express qualification in Direction 65 that the mandatory factors for consideration are only mandatory 'where relevant'. The Tribunal was required to form an opinion about the relevance or otherwise of each factor, but in this context relevance is not a jurisdictional fact that the court must determine for itself: SZTMD v Minister for Immigration and Border Protection [2015] FCA 150; (2015) 150 ALD 34 at [20] (Perram J); and Minister For Home Affairs v HSKJ [2018] FCAFC 217; (2018) 363 ALR 325 at [44]. (8) However the inference referred to in Yusuf is not mandatory. The manner in which a statement of reasons is drawn and its surrounding context may detract from or displace the inference; for example because there is material that is so obviously relevant that it is unthinkable that the Tribunal would not have referred to it if it had actually considered it: SZTMD at [19]. (9) It is not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the relevant criteria and some contentions misconceived: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593 at [46] (French, Sackville and Hely JJ). (10) It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality: Applicant WAEE at [47]. (11) It falls to the applicant to establish a basis for drawing the inference necessary to make out the alleged jurisdictional error: Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594 at [67] (Gummow J). (12) The reasons should not be scrutinised minutely and finely with an eye keenly attuned to the perception of error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272. A conclusion that the decision-maker has not engaged in an active intellectual process 'will not lightly be made and must be supported by clear evidence, bearing in mind that the judicial review applicants carry the onus of proof': Carrascalao at [48]. (13) 'Excluding obvious cases, the determination of whether the decision-maker has given active intellectual consideration to a representation will frequently be a matter of impression reached in light of all of the circumstances of the case. In this context, whether or not the reasons of the decision-maker fall "on the wrong side of the line", to quote Lafu at [49], will be a matter of inference to be drawn in particular from the manner in which the representation was advanced, and the structure, tone and content of the decision-maker's reasons': Navoto v Minister for Home Affairs [2019] FCAFC 135 at [89] (Middleton, Moshinsky and Anderson JJ). (14) Each case necessarily turns on its own particular facts and circumstances as established by the evidence: Minister for Home Affairs v Omar [2019] FCAFC 188; (2019) 373 ALR 569 at [36(e)]. 21 No attack is made on the primary judge's summary of those principles. Rather, it is contended that the primary judge should have concluded that there was a strong inference that the Tribunal failed to consider the effect of non-revocation on Ebony Bond when regard is had to the fact it was not mentioned expressly in the Tribunal's Reasons.

Consideration 22 The appellant's step-daughter, Ebony Bond, was a young adult at the time of the Tribunal's decision. Her best interests were not a "primary consideration" for the purposes of paragraph 13(2)(b) of Direction 65 because she was not a minor. 23 The appellant nonetheless raised Ebony's interests as a "reason" for revoking the decision to cancel his visa in unequivocal terms. He did so in representations made in response to an invitation given under s 501CA(3) of the Migration Act as well as in his submissions before the Tribunal. Accordingly, the Tribunal was obliged to have regard to Ebony's interests in accordance with the principles stated in Minister for Home Affairs v Omar [2019] FCAFC 188; (2019) 272 FCR 589 at [36]. 24 The Tribunal noted that the submissions made by the appellant to the delegate, and hence also to the Tribunal, included the following considerations in favour of revocation: (1) "his continued 'constant and consistent' and close relationship with his (now 20 year old) step-daughter, whom he had raised as his own, and his minor child, following his separation from their mother after 15 years together" (Tribunal's Reasons [7(b)]); and (2) "that his removal from Australia would cause emotional hardship to his daughters and step-daughter as they would lose their father and his (then unborn) infant child would never have the opportunity to know her father" (Tribunal's Reasons [7(c)]). 25 The Tribunal accepted that the appellant has family and social ties in Australia and "that his immediate family, particularly his parents, may experience some hardship if [he] returned to the United Kingdom" (Tribunal's Reasons [131]). The Tribunal found that the strength, nature and duration of the appellant's ties to Australia weigh in favour of revocation of the mandatory cancellation of the Visa (Tribunal's Reasons [132]). 26 Ultimately, the Tribunal found "that having regard to all of the primary considerations and the relevant other considerations required to be taken into account under Direction No. 65, it is not satisfied that there is another reason why the original decision to cancel the visa should be revoked as required by subsection 501CA(4)(b)(ii) of the Migration Act and the correct and preferable decision is not to revoke the mandatory cancellation of the visa" (Tribunal's Reasons [152]). 27 The appellant submits that the nature of the relationship between the appellant and Ebony "could quite possibly have been the most significant factor weighing in favour of revocation, it is implausible if properly considered that it would not be expressly referred to". 28 The appellant submits that Ebony is only mentioned in the Tribunal's Reasons at [17], [19], [76(g)], and [86(h)] and that the Tribunal's conclusion at [131] (quoted above) is hard to reconcile with any consideration of the effect of non-revocation on Ebony "given the repeated claims made that she would be devastated by the Applicant's removal from Australia, the parental nature of their relationship and that their relationship was made more significant by the fact that Ebony Bond had never had a real relationship with her biological father". 29 On the material before the Tribunal, there was one letter from Ebony, which was undated, in which she wrote "it would truly devastate us if Craig was forced to leave the country" and is that which was referred to in the Tribunal's Reasons at [19(d)]. There was also a letter from Ebony's grandmother which "implore[d] [the delegate] not to deport him as it [would] leave Ebony and Amity heartbroken and without a father in their lives". This was the letter referred to in the Tribunal's Reasons at [19(e)]. Both those letters were attachments to the delegate's statement of reasons (attachments N and U respectively). 30 The appellant had also made representations in a document entitled "Immigration Declaration" as to the effect his deportation would have on Ebony, stating that, "[o]ur bond is extremely strong and I feel it would have an adverse effect on her if I were to be removed from her life. She has expressed to me the complete devastation she feels at the thought of me having to leave". The Tribunal stated that it had treated this document, amongst other matters, as Mr Meyrick's written evidence (Tribunal's Reasons [20]). 31 Further, Ebony gave evidence before the Tribunal and was cross-examined (Tribunal's Reasons [17]). Relevant to this appeal, Ebony confirmed that she had written the letter of support referred to above in or about September 2017. She was not asked about and did not give evidence about her relationship with the appellant or what impact his removal would have on her. The statement in her letter that she would be devastated by the appellant's deportation was not challenged. 32 Ebony's grandmother also gave evidence and spoke briefly about the appellant being a father figure to Ebony. 33 In closing oral submissions before the Tribunal, the appellant described how he regards Ebony as his own daughter and that he has had a positive influence in her life. 34 Other evidence concerning the relationship between the appellant and Ebony that was not referred to by the Tribunal is in the form of letters in 2010 that were apparently furnished to the Department to agitate against the cancellation of his visa at that time: (1) In August 2010, Ebony's mother wrote a letter "to whom it may concern" in which she stated that Ebony is a child from a previous relationship "of whom Craig took on the role as father when she was 2 years of age". She stated that if the appellant were to be deported, "this would ultimately be devastation to me, our children, and his family". (2) In September 2010, the appellant wrote to the Department in which he said that he has two children, both girls, Amity is 4, and Ebony is 12 years of age. He said that he was hoping to be part of their lives and upbringing upon his release if permitted to stay in Australia. He said that he is very close to the children and that "separation will be catastrophic to us all, and I do not know how my children will recover from the long-term effects, it is extremely distressing". (3) In September 2010, Ebony's grandmother wrote a letter "to whom it may concern" in which she stated that the appellant had been a devoted father and stepfather to her two grandchildren "who love him very much". She said that it would be detrimental to the appellant's step-daughter, Ebony, "who is eleven and a half and Craig is the only father that Ebony has ever known". 35 The primary judge identified the absence of any express mention of Ebony in the part of the Tribunal's reasons that deals with the strength, nature and duration of ties to Australia, despite the express mention of Tahlia Boardman, who was not a biological or step-child of the appellant. He observed that this omission may support an inference that the Tribunal overlooked Ebony (Reasons [99]). 36 The primary judge also identified matters which suggested that the Tribunal had not overlooked or failed to consider the material about Ebony (Reasons [100]). These included: the specific mention of an the undated letter written by Ebony, and letters from her grandmother, which made representations about the impact of the removal of the appellant on Ebony (Tribunal's Reasons [17] and [19(d)]) and the reference to the possibility that the appellant and his partner might move away from Western Australia even if he was not removed from Australia, suggesting it had regard to the possibility that he would be separated from other family members including Ebony anyway (Tribunal's Reasons [126]). 37 The primary judge referred to the fact that the Tribunal had mentioned Ms Boardman expressly in this part of its reasons, and not Ebony, but considered that this was explicable by the fact that Ms Boardman's evidence was about special vulnerability arising from her mental health. He was not prepared to infer that the Tribunal did overlook or fail to consider the material about Ebony (Reasons [101]). He found (Reasons [101]): As a matter of impression, the Tribunal's reasons were careful and considered and I am not persuaded that its approach to the interests of Mr Meyrick and his family was cursory or formulaic (which I say not because that is the test, but because it is a matter relevant to the overall inferences I must draw). In my view, the Tribunal's omission to make any express finding specifically about Ebony is because that finding was subsumed in the findings of greater generality to which I have just referred. I do not find that it failed to have regard to the effect of non-revocation on Ebony or otherwise failed to give adequate consideration to Mr Meyrick's relationship with her. 38 The Tribunal acknowledged the appellant's submission with regard to the effect of non-revocation on Ebony and it noted the evidence in support of that including, critically, Ebony's letter. That was the strongest evidence in support of the submission. The Tribunal did not specifically note the letters from 2010, but given their origin some eight years earlier when Ebony was still a minor, that is not significant. There is no reason to construe the Tribunal's conclusion that the appellant's "immediate family" would experience hardship if he returned to the United Kingdom as not including Ebony, particularly in light of the evidence and submissions that the appellant regarded Ebony as his daughter. In those circumstances, there is no error shown in the primary judge's approach, nor as to the conclusion reached.

Materiality 39 In view of our conclusion with regard to the primary judge's conclusion that the Tribunal did not overlook the position of Ebony, it is unnecessary for us to consider the question of whether, if there were an error, it was material as dealt with in Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123 and Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421. 40 In view of there presently being different emphases with regard to the test of materiality in decisions of the Full Court, and special leave to appeal to the High Court having been given but the appeal not yet having been heard or decided in respect of at least one other decision of the Court on materiality, no purpose would be served in us entering upon this debate. The cases to which we refer include MZAPC v Minister for Immigration and Border Protection [2019] FCA 2024 per Mortimer J at [40]-[51] (special leave application granted, [2020] HCATrans 113), DQM18 v Minister for Home Affairs [2020] FCAFC 110 at [113]-[117] per Mortimer and Bromberg JJ (Snaden J concurring as to the result), and PQSM v Minister for Home Affairs [2020] FCAFC 125 per Banks-Smith and Jackson JJ at [139]-[143] (Mortimer J dissenting, see [72]-[87]).

Disposition 41 The appeal should be dismissed with costs. I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Charlesworth, SC Derrington and Stewart .