Consideration
44 The Tribunal was obliged to follow Direction 79 when exercising its discretion to determine whether to revoke the cancellation decision. I am satisfied that, in coming to its decision, the Tribunal did not follow the direction given in para 13.1.1(1)(b).
45 That direction required the Tribunal to view the 2016 offences, and the 2011 offence against the respondent's former partner, very seriously. I can only think that the words "very seriously" were chosen advisedly in drafting Direction 79. These words are not some flourish of the pen. There was no discretion reposed in the Tribunal to view the offences in some lesser or different light. But this is what the Tribunal did.
46 First, the Tribunal referred to the 2016 offences as "serious", not "very serious". The respondent submitted that the omission of the word "very" in the Tribunal's characterisation of the respondent's offending should not lead to the conclusion that its decision, in this regard, is affected by jurisdictional error. The respondent called in aid the caution expressed in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at 272 that the reasons of an administrative decision-maker are meant to inform and are not to be scrutinised by over-zealous judicial review seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. As the Full Court of this Court said in Collector of Customs v Pozzolanic (1993) 43 FCR 280 at 287, such reasons should not be construed minutely and finally with an eye keenly attuned to the perception of error; see also McAuliffe v Secretary, Department of Social Security (1992) 28 ALD 609 at 616 - 617, and the cases there cited.
47 Had the omission of the word "very" been the only matter of comment arising from this part of the Tribunal's reasons then I accept that the Court should proceed cautiously before accepting that the Tribunal fell into error, especially since the Tribunal did accurately state the requirement of para 13.1.1(1)(b) at [15] of its Decision Record. However, the omission of the word "very" is not the only matter for comment and thus the omission should not be seen in isolation.
48 At [38] of its Decision Record, the Tribunal reasoned that the seriousness of the 2016 offences had to be viewed in light of the psychologists' reports. I do not doubt that the psychologists' reports contained information that was relevant to the exercise of the Tribunal's discretion. But the psychologists could not comment on, and did not purport to comment on, the degree of objective seriousness of the respondent's offending. And yet this is how the Tribunal treated the Dieter report by stating that the 2016 offences seemed to "confirm impulsivity rather than being indicative of a criminal disposition". I do not accept that, here, the Tribunal was simply seeking to comment on the reason for the 2016 offences. Rather, it was qualifying the objective seriousness of the offences and, in so far as they concerned violence against women or children, attributing to them lesser significance than permitted by para 13.1.1(1)(b).
49 With respect to the 2011 incident, the Tribunal went even further in imposing its own assessment of the degree of seriousness of the offence by referring to it as "not, overall, a particularly serious offence": see [39] of the Decision Record.
50 The error in the Tribunal's approach is compounded at [43] of its Decision Record where, although referring to, it seems, the 2016 and 2011 offences as, once again, "serious", the Tribunal said that it was relevant to consider their seriousness against the actual sentences imposed on the respondent. In approaching its task in this way, the Tribunal acted contrary to para 13.1.1(1)(b) which states that crimes of a violent nature against women and children are viewed very seriously, regardless of the sentence imposed. The Tribunal's approach led it to conclude that the respondent's offending was of a "moderate level of seriousness".
51 In his written submissions, the respondent advanced the proposition that, in this part of its reasons, the Tribunal was doing no more than considering the weight to be given to the primary consideration of the protection of the Australian community. I do not accept that submission. Plainly, the Tribunal was exercising its own judgment as to the degree of objective seriousness of the respondent's past offending.
52 The respondent also advanced the somewhat different proposition that it was relevant to the Tribunal's assessment of the respondent's offending that it take into account the sentences that had been imposed. This proposition was developed in oral submissions by reference to para 13.1.1(1)(d) of Direction 79, which states that, in considering the nature and seriousness of the offending, the decision-maker can have regard to :
Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes …
53 The respondent submitted that para 13.1.1(1)(d) permitted the Tribunal to take into account the sentences that had been imposed on him for the purpose of forming a view about the seriousness of his criminal offending.
54 I do not accept that submission. Paragraph 13.1.1(1)(d) makes it clear that it is to be read subject to para 13.1.1(1)(b), and para 13.1.1(1)(b) requires the decision-maker to view crimes of a violent nature against women or children very seriously regardless of the sentence imposed. To read the two paragraphs of Direction 79 as the respondent would have it, inverts them so that the proviso to para 13.1.1(1)(d) is removed and becomes the proviso to para 13.1.1(1)(b), with para 13.1.1(1)(b) then being read subject to para 13.1.1(1)(d).
55 The Tribunal therefore failed to apply the direction in para 13.1.1(1)(b) of Direction 79. In substance, the Tribunal supplanted para 13.1.1(1)(b) by reaching and applying its own evaluation of the seriousness of the respondent's past offending in so far as it concerned crimes of a violent nature towards women and children.
56 I am also satisfied that the Tribunal failed to comply with the direction given in para 13.1.2(1)(a) of Direction 79. Paragraph 13.1.2(1) required the Tribunal to come to a "cumulative" assessment. One limb of that assessment was the likelihood of the respondent engaging in further criminal or other serious conduct: para 13.1.2(1)(b). The Tribunal purported to undertake that task by finding that the respondent represented a "relatively low risk" to the Australian community in the future: see at [43]. However, this was not enough to undertake, meaningfully, the task which para 13.1.2(1) required. The Tribunal had to go further and reach a decision on the nature of the harm that might be involved with that "relatively low risk". Here, the Tribunal's assessment was necessarily incomplete. Its assessment simply begs the question: a "relatively low risk" of what further criminal or other serious conduct? Without answering that question, the Tribunal could not have arrived at the cumulative assessment that para 13.1.2(1) required.
57 The respondent submitted that, while it was brief in its written reasons, the Tribunal did in fact undertake the task required by para 13.1.2(1)(a). He submitted that the Tribunal's finding that his past conduct was "serious" was enough to address the requirement.
58 I do not accept that submission. Paragraph 13.1.2(1)(a) is, as I have said, forward-looking. It necessarily poses a hypothetical question. The nature of the respondent's past offending might inform a decision-maker about the nature of any future conduct he might engage in. But the nature of any future conduct does not necessarily mirror each and every, or indeed any, aspect of the respondent's former criminal conduct. The respondent had engaged in a range of different criminal or other serious conduct (various assaults including those involving domestic violence; stalking/intimidation; property offences; various driving offences; a bail offence; and violent conduct while in immigration detention) which would, or at least could, fall within the description "criminal or other serious conduct". Paragraph 13.1.2(1)(a) required the Tribunal to turn its mind to, and identify, further criminal or other serious conduct that the respondent might engage in having regard to circumstances existing at the time of the decision, to evaluate the nature of the harm that might be suffered by relevant individuals or members of the Australian community should the respondent engage in that conduct. Paragraph 13.1.2(1)(b) then required the Tribunal to form an assessment of the likelihood of that criminal or other serious conduct occurring. A fair reading of the Tribunal's reasons shows that it did not undertake the task that para 13.1.2(1) required it to undertake.
59 I am also satisfied that the Tribunal failed to comply with para 13.2 of Direction 79 concerning whether revocation of the cancellation decision was in the best interests of minor children in Australia.
60 Paragraph 13.2 conditions this primary requirement by defining the class of children to whom the direction is addressed (para 13.2 (2)) and by requiring the decision-maker to give individual consideration to the best interests of each child falling within the class, to the extent that the interests of the children differ (para 13.2(3)).
61 In the present case, the interests of three children were engaged: one child from the respondent's relationship with his former partner, who was born in 2009; and two from the respondent's relationship with his present partner, who were born in 2014 and 2016. There was information before the Tribunal to the effect that, at the time of its decision, the contact which the respondent had had with his youngest child was different to the contact he had had with his two older children. Indeed, at [44], the Tribunal found that the respondent had had little opportunity to bond with his youngest child because of his detention and because of the child's young age.
62 In the Tribunal, the Minister accepted that the respondent's children would benefit if he remained in Australia. However, the Minister advanced a number of submissions as to the weight that should be given to that consideration:
16. The respondent accepts that the applicant's 3 children would benefit from the applicant remaining in Australia and for them maintaining a relationship with him here. Consequently, it would be in the children's best interests if the cancellation of the applicant's visa were revoked. However, the weight to be given to this consideration is to be assessed in accordance with Direction 79.
17. Clause 13.2(4)(a) of Direction 79 provides that [l]ess weight should generally be given where... there have been long periods of absence or limited meaningful contact.
18. The applicant's eldest child, [X], lived with his mother after his birth. The applicant only lived with them for a couple of months shortly after [X] was born. The applicant said that he had to move away from his son so that the applicant's negative actions and behaviour would not affect him. Following the 2011 domestic violence assault, the police applied for a Provisional Apprehended Violence Order with the agreement of the applicant's ex-partner (RTB 242 to 243). The applicant had not seen [X] since he entered custody in 2016, although more recently [X] obtained a mobile phone and they were in contact by text message.
19. In 2016, after the applicant's assault offences, he was subject to apprehended violence orders (RTB 269 to 270), and released on bail conditions (RTB 161 to 162) which limited his contact with his children. After the 2016 assault, the Department of Family and Community Services (FACS) also had a child protection response and intervention plan which included a directive that the applicant have no contact with his partner and that she was not to allow him to have contact with the children (RTB 114). At this stage, the applicant's middle child was 19 months old and his youngest son was not yet born. On 2 December 2016, the Department of Corrective Services found that the applicant was unsuitable to return to live with his family due to the risk of harm to the children (RTB 118). The applicant has since had visits by his youngest children in custody and immigration detention, but the contact he has had with them has been necessarily limited by his custody and detention.
20. Clause 13.2(4) requires the Tribunal to consider the impact of the applicant's prior conduct, or likely future conduct, and whether any likely future conduct will have a negative impact on the children. The respondent submits that the applicant's violent conduct, which occurred in the same house where his children resided, could negatively affect those children if repeated. The FACS assessment of the potential danger to the children is relevant in this regard. It is also relevant that the applicant's ex-partner told police following the 2011 assault that she was concerned for her safety and her son's safety when the applicant had been drinking (RTB 242). The potential negative impacts which could arise from the applicant's further offending again reduce the weight which should be given to this consideration.
21. Clause 13.2(4)(d) requires the Tribunal to consider the likely effect of separation on the children which would occur if the visa were cancelled. In this regard, it is relevant that the applicant's partner was considering moving to New Zealand to be with the applicant (and taking the youngest 2 children). If this occurred, there would be limited separation from the applicant. The applicant's ex-partner gave evidence that she would want to allow [X] to visit his father in New Zealand when he was able to travel and she could afford to send him. The children would also still be able to contact the applicant by phone as they have been doing while he is in immigration detention. The respondent submits that there is potential for on-going contact between the applicant and his children if the visa remains cancelled, and that this means that less weight should be given to this consideration.
22. Finally, cl 13.2(4)(e) requires the Tribunal to consider whether there are other persons who already fulfil a 'parental role' in relation to the child. It is relevant that the applicant's ex-partner is the primary carer for [X], and that she receives support from her mother and father (although the respondent accepts that their capacity to support is diminishing due to their age). The youngest children have been cared for by the applicant's current partner, her mother and father and sister who lives next door. While the respondent accepts that these roles will not replace the applicant's role in his children's lives, there are currently people who are able to care for the children. There is limited evidence that the children are not being adequately cared for in terms of education, health or general welfare. Accordingly, the respondent submits that this further lessens the weight which should be given to this consideration.
23. For the above reasons, the respondent submits that the consideration of the best interests of the child does not outweigh the consideration of the protection of the Australian community.
63 These submissions show that there was material before the Tribunal which, on its face, suggested that the interests of the respondent's children might differ in various ways. However, on the face of its reasons, the Tribunal treated the children's interests uniformly, without discussing these possible differences. It is unclear whether the Tribunal reached a conclusion that there was no difference between the children's respective interests, or whether it failed to address the requirement of para 13.2(3). If, indeed, the Tribunal reached a conclusion that there was no difference between the children's respective interests, it did not express that conclusion or give any reasons for it, which one would have expected if the Tribunal had given active consideration to this requirement.
64 Further, in considering the best interests of the children, para 13.2(4) sets out a number of factors which must be considered, if they are relevant. In the submissions quoted at [62] above, the Minister addressed the factors discussed in paras 13.2(4)(a) - (e), in a way that made them relevant to the Tribunal's consideration. However, the Tribunal did not explicitly address any of these matters in its Decision Record other than to touch on some aspects of the matters with which paras 13.2(4)(a) and (d) of Direction 79 deal.
65 As Burley J observed in VKTT v Minister for Immigration and Border Protection [2019] FCA 1018 at [38] (in a case dealing with the Tribunal's application of Direction 65, the predecessor of Direction 79), the Tribunal was obliged to give reasons for its decision, and this required it to set out its findings on material questions of fact, and to refer to the evidence or other material on which those findings were based: ss 43(2), 43(2B) Administrative Appeals Tribunal Act 1975 (Cth); s 25D Acts Interpretation Act 1901 (Cth). His Honour said (at [39] - [41]):
39 The written reasons may be taken to be a statement of those matters adverted to, considered, and taken into account by the decision-maker, and if something is not mentioned, it may be inferred that it has not been adverted to, considered or taken into account; NBMZ v Minister for Immigration & Border Protection [2014] FCAFC 38; 220 FCR 1 at [16] (Allsop CJ and Katzmann J). In Minister for Immigration & Border Protection v SZSRS [2014] FCAFC 16; 309 ALR 67 (Katzmann, Griffiths and Wigney JJ), the Tribunal's failure to address a particular letter provided by the applicant was held to give rise to jurisdictional error. The Court at [34] made observations as to the nature of the exercise in determining whether a matter is considered by the Tribunal or not:
34 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: SZGUR 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: MZYTS at [52].
40 This passage has since been adopted by another Full Court in HSKJ at [46].
41 The Court can more readily infer that a matter has not been considered when there is information before the decision-maker addressing that issue, but it is not referred to in the reasons. In Goodwin Street Developments Pty Ltd v DSD Builders Pty Ltd [2018] NSWCA 276 at [23], Basten JA (Leeming and Whit JJA agreeing) said:
23 Where there is apparently credible and relevant material before the decision maker, which appears to engage with a mandatory consideration, and there is no reference to that material in the reasons provided by the decision-maker, it may be inferred that no regard was had to it. That may allow the inference that no regard at all was had to the mandatory consideration.
66 Other than in the very limited respects which I have noted, I am satisfied that the Tribunal failed to actively engage with the substance of the factors identified in para 13.2(4)(a) - (e) of Direction 79. I am persuaded that, in fact, the Tribunal failed to consider them. At [44] of its Decision Record, the Tribunal simply made high level findings that the respondent had, and continues to have, a "deep and loving relationship with his children" and that he would be able to "continue a highly satisfactory and appropriate relationship" with them. These findings do not engage with the detail of the factors that the Tribunal was obliged to take into account. The Tribunal repeated these generalised findings after alluding to "the list of matters required to be considered by the Tribunal within Primary Consideration 2". However, I am satisfied that, in this part of its reasons, the Tribunal paid no more than lip service to the factors it was required to take into account. Indeed, the Tribunal seems to have treated these factors as if they only informed the question whether the respondent and his children had a loving relationship. Paragraphs 13.2(4)(a) - (e) require consideration of much more than that.