NBCM v Minister for Home Affairs

Federal Court of Australia|2018-07-23|Before: Markovic J

The application is allowed.
A writ of certiorari to issue quashing the decision of the second respondent dated 23 July 2018.
A writ of mandamus to issue requiring the second respondent to make a decision according to law on whether the applicant's Class TY subclass 444 Special Category (Temporary) visa should be cancelled.
Until 22 January 2034, pursuant to s 37AF(1)(a) of the Federal Court of Australia Act 1976 (Cth) and on the ground that the order is necessary to prevent prejudice to the proper administration of justice, information tending to reveal the identity of the applicant, the applicant's former partner, his minor children and his grandchildren not be published.
The first respondent pay the applicant's costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

MARKOVIC J: 1 This is an application for judicial review of a decision made by the second respondent (Tribunal) on 23 July 2018. The Tribunal had affirmed a decision of a delegate of the first respondent (Minister) to cancel the applicant's Class TY subclass 444 Special Category (Temporary) visa (Visa) under s 501(2) of the Migration Act 1958 (Cth) (Act).

background 2 The applicant is a male national of New Zealand. He arrived in Australia in 1997, aged 26. 3 The applicant has five children. The three oldest children were born in New Zealand in 1991, 1993 and 1995 respectively and now live in Australia. The two younger children, a daughter and son, were born in Australia in 2003 and 2010 respectively and are thus Australian citizens and continue to live in Australia. All five children were born to the same mother, referred to in the Tribunal's decision and in these reasons as NBDM, who is a New Zealand citizen residing in Australia. 4 The applicant also has three grandchildren born to his second oldest child, referred to in the Tribunal's decision and in these reasons as NBEM, who are Australian citizens and who are under the age of 18. 5 The applicant has been convicted of the following offences: (1) in New Zealand he was convicted in 1990 of burglary for which he received a non-custodial sentence of 100 hours of community service and was ordered to pay reparations of $1,300, and in 1994 of assaulting NBDM for which he was fined $400; and (2) in Australia he was convicted: (a) in 2001 of assault and use of offensive language for which he was fined $700 and of assaulting an officer in the execution of duty, common assault and resist or hinder police officer in the execution of duty, for which he received a two-year supervision order; (b) in 2009 of common assault (dv) against NBDM for which he was sentenced to a 12-month good behaviour bond under supervision of the NSW Probation Service, the conditions of which were that he was to obey all reasonable directions for counselling, education development or drug and alcohol rehabilitation and report to the Liverpool probation office within seven days. He was not to assault, molest, harass or otherwise interfere with NBDM or incite any third party to do so; (c) on 28 January 2014 of contravening a prohibition/restriction in an AVO (domestic), for which he was fined $500; (d) on 2 April 2014 of assault occasioning actual bodily harm and of stalk/intimidate with intention to cause fear of physical or mental harm. For each conviction he was sentenced to six months' imprisonment, to be served concurrently, commencing on 2 April 2014 and concluding on 1 October 2014; and (e) on 24 November 2014 of assault occasioning actual bodily harm (dv) and of contravening a prohibition/restriction in an AVO (domestic). For each conviction he was sentenced to 10 months' imprisonment, to be served concurrently, commencing on 19 October 2014 and concluding on 18 August 2015 with a non-parole period of seven months commencing 19 October 2014 and concluding on 17 May 2015 with release subject to supervision. 6 By letter dated 6 April 2017 the Department of Immigration and Border Protection (Department) wrote to the applicant giving notice of the intention to consider cancellation of the Visa under s 501(2) of the Act which provides that the Minister, or Minister's delegate, may cancel a visa if they reasonably suspect that the applicant does not pass the "character test" as defined in s 501(6)(a) of the Act. This was because the applicant had a "substantial criminal record" within the meaning of s 501(7) of the Act. 7 There is no dispute between the parties that the applicant does not pass the character test: he has been sentenced to two or more terms of imprisonment where the total of those terms is 12 months or more: see s 501(7)(d) of the Act. 8 On 30 April 2018 the applicant was notified that by decision dated 21 March 2018 a delegate of the Minister had decided to cancel the Visa pursuant to s 501(2) of the Act. 9 On 7 May 2018 the applicant applied to the Tribunal for review of the delegate's decision. 10 Among other things, the applicant provided the Tribunal with a statutory declaration declared by him on 30 June 2017 (Applicant's Declaration) and a statutory declaration declared by NBEM on 30 July 2017 (NBEM's Declaration). A statutory declaration declared by NBDM on 12 December 2017 was also provided to the Tribunal (NBDM's Declaration). In each of these, the maker of the statutory declaration spoke positively in favour of the applicant and why he should remain in Australia. Insofar as the applicant's minor children and grandchildren are concerned: (1) in the Applicant's Declaration, under the heading "my family", the applicant says that he sees his children regularly and they get together as an entire family for a meal once a week, that he takes his son (then aged six) to his karate lessons twice a week and that he sees his three grandchildren at least once a week and takes them to the library or the park; (2) in NBEM's Declaration, NBEM says that the applicant is a good grandfather to his three grandchildren and that he spends as much time as he can with them and has a special bond with the oldest grandchild, then aged six; (3) in NBDM's Declaration, NBDM says that the applicant has always been a loving father to the children, has been involved with them and has never been violent towards any of them. NBDM encourages the children to spend time with him. NBDM notes that the youngest child has learning difficulties and, if the applicant were forced to return to New Zealand, the separation would be exceptionally difficult for that child. NBDM also says that she is working late nights and is grateful for the applicant's continued presence as he has been able to take the children to school and to their extra-curricular activities. 11 On 10 July 2018, which was the day of the hearing before it, the Tribunal received an email form NBDM (10 July Email) in which she said that in the preceding week she had come to realise the impact of domestic violence and its effects on her and her children. She set out how she was made to feel and said that she had "great concern" for her safety because the applicant "had been to jail a number of times for domestic violence. [She] was subjected to multiple forms of mental and physical abuse in front of [their] children throughout the entirety of [their] relationship". NBDM concluded the 10 July Email with the following statement: I feel if the [applicant] is to remain in Australia then the mental and physical wellbeing of both myself and my children has to be assured, as I am not confident the [applicant] has taken all the necessary steps to improve himself. 12 On 23 July 2018 the Tribunal affirmed the delegate's decision.

the tribunal's decision 13 The Tribunal referred to s 501(2) of the Act and observed that there were two issues for consideration: whether the applicant passed the character test in s 501(6) of the Act; and, if not, whether the Tribunal should exercise the discretion in s 501(2) of the Act to cancel the Visa. 14 The Tribunal found that the applicant did not pass the character test under s 501(6)(a) of the Act and noted that the applicant conceded that was so. 15 The Tribunal then considered whether it should exercise the discretion to cancel the Visa. 16 The Tribunal first noted that in considering whether to exercise the discretion under s 501(2) of the Act it is required, pursuant to s 499(2A) of the Act, to have regard to "Direction No 65 - Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA" (Direction). It set out relevant parts of the Direction including: (1) its objectives; (3) general guidance and principles; (4) guidance on how the discretion should be exercised; (5) the primary considerations that the Tribunal must take into account, namely: (a) protection of the Australian community from criminal or other serious conduct; (b) the best interests of minor children in Australia affected by the decision; and (c) expectations of the Australian community; and (6) the other considerations, provided in a non-exhaustive list, which must be taken into account insofar as they are relevant to the individual case, namely: (a) international non-refoulement obligations; (b) strength, nature and duration of ties to Australia; (c) impact on Australian business interests; (d) impact on victims; and (e) extent of impediments if removed/not permitted to return. 17 The Tribunal turned to consider the primary considerations having observed that "[g]enerally primary considerations should be given greater weight than other considerations and one or more primary considerations may outweigh other primary considerations" (emphasis in original): at [27] of the Tribunal's reasons. 18 The Tribunal first considered the protection of the Australian community from criminal or other serious conduct, noting that the Direction at cl 9.1(2) requires that decision-makers should have regard to the nature and seriousness of the non-citizen's conduct to date and the risk to the Australian community should the non-citizen reoffend or engage in other serious conduct. 19 In considering the nature and seriousness of the applicant's conduct to date, the Tribunal set out the history of the applicant's offending and considered the nature of the offences and victims of the applicant's crimes. At [47] of its reasons the Tribunal noted that the applicant's offences were violent crimes perpetrated on NBDM, his former partner, and on more than one occasion were witnessed by his children who were minors at the time. The Tribunal considered that the applicant's offending, which had continued over the 25 years of his relationship with NBDM, was of a very serious nature because of the harm occasioned to NBDM and its occurrence in a domestic setting in proximity to young children. 20 The Tribunal noted that the applicant conceded in his statement of facts, issues and contentions (Applicant's SOFIC) that his crimes were serious and violent in nature, but rejected the applicant's contention that his crimes should be considered to be at the lower end of the scale because the sentences imposed were "low-moderate" and the "victim was not a vulnerable member of society". The Tribunal found that the applicant's victims included not only NBDM, who was in a vulnerable position relative to the applicant, but his children who witnessed many of the assaults against their mother. The Tribunal referred to the 10 July Email as evidence of the impact of the applicant's offences on his victims. At [56] of its reasons the Tribunal said: The Tribunal has considered the apparently contradictory statements made by NBDM in her Statutory Declaration dated 12 December 2017 and in her email to the Tribunal Registry on the morning of the hearing (R1). It has afforded greater weight to the latter for reason that, as a victim of domestic violence at the hands of the Applicant for more than two decades, it is not unlikely that, for reasons of fear or insecurity, NBDM would express support for her former partner when asked to provide a statement in support of his application for review of a decision to cancel his visa. Her email directly to the Tribunal on the day of the hearing is a more reliable indicator of her feelings towards the Applicant, which are revealed in the email to be ones of trepidation and concern for her own safety and well-being and that of her children if the Applicant remains in Australia: I feel if the defendant is to remain in Australia then the mental and physical well-being of both myself and my children has to be assured, as I am not confident the defendant has taken all the necessary steps to improve himself. 21 The Tribunal considered the sentences imposed by the courts and noted that the imposition of imprisonment, and the remarks of the magistrates, indicated the seriousness of the applicant's offences and "weigh strongly in favour of the exercise of the discretion to cancel his visa". The Tribunal also considered the frequency of the applicant's offending, its increasing seriousness and its cumulative effect, noting that the applicant's offending demonstrated a pattern of behaviour that became more frequent and violent over time and had a cumulative effect on NBDM and his children, who were also victims of his crimes. 22 At [62] of its reasons the Tribunal summarised its findings and concluded as follows: To summarise, the nature and seriousness of the Applicant's offences, including the vulnerability of his victims, the increasing frequency and the escalating levels of violence associated with the assaults against his former partner, the sentences imposed by the courts and the cumulative effect of his repeated offending indicate the objective seriousness of the Applicant's conduct. These factors weigh heavily in support of the exercise of the discretion to cancel his visa. 23 The Tribunal then considered the second factor it had identified, the risk to the Australian community should the applicant reoffend. In doing so it considered the nature of harm to individuals or the community; the likelihood that the applicant would engage in further criminal or other serious conduct; whether the applicant had shown any remorse for his actions; and his sobriety and rehabilitation. The Tribunal found that if the applicant were to reoffend his potential victims would be NBDM and their children or a future partner and/or her children and that the risk of harm to individuals should he reoffend was unacceptable. While the four-year period during which he had not offended was a promising indicator, the Tribunal considered that there remained a not insignificant risk that the applicant would reoffend should the triggers for his offending present themselves. 24 The Tribunal concluded that the first primary consideration, protection of the Australian community from criminal or other serious conduct, weighed heavily in favour of cancelling the Visa. 25 The Tribunal then turned to consider the second primary consideration, the best interests of minor children in Australia affected by the decision. There were five minor children at the time of the Tribunal's decision: the applicant's two children aged 14 and seven; and the applicant's three grandchildren aged six, three and one. 26 The Tribunal's treatment of this primary consideration is at the heart of this application. The Tribunal commenced its consideration at [77] of its reasons. Relevantly, at [79]-[82] it said 79. The Applicant's evidence to the Tribunal and in his Statutory Declaration is that he has a close and loving relationship with his two youngest children and is actively involved in their upbringing. He sees them on an almost daily basis and will pick them up from school and help with their homework. He often takes them to church, cultural events and Boys' and Girls' Brigade. They stay with him at his home in Darlinghurst or he will go to see them at their home in Liverpool. 80. In her evidence to the Tribunal, NBEM confirmed that the Applicant has a close relationship with her younger siblings and also with her three children. He sees them at least once a week and does many activities with them including taking them to the Australian Open earlier this year. 81. Independent evidence before the Tribunal confirms the positive parental role the Applicant plays in the children's lives and his potential to support them emotionally and contribute to their upbringing. The involvement of the Applicant in their children's lives was confirmed in the Statutory Declaration of NBDM dated 12 December 2017: NBCM has always been a loving father to all our children and cares deeply for their safety and wellbeing. NBCM is, and always has been a very involved father and I know that all of our children love spending time with him. He has never been violent towards any of our children, and I always encourage them to spend time with their father. 82. In the Respondent's [Statement of Facts, Issues and Contentions], the Respondent accepts on the basis of the evidence that the best interests of minor children in Australia weigh in favour of the Applicant's visa not being cancelled but that minimal weight should be afforded to this consideration in view of the not insignificant risk of his re-offending [Respondent's SFIC at paragraph 38]. In oral submissions at the hearing, the Respondent relied on evidence given by the Applicant's daughter (NBEM) that when she was growing up, she witnessed the harm caused by her father to her mother and she was constantly worried when her parents consumed alcohol because it always led to a fight. The Respondent submitted that the disregard the Applicant demonstrated towards his children who frequently witnessed him assault their mother indicates that this Primary Consideration cannot weigh in his favour and can only be a neutral factor in the exercise of the discretion. (footnotes omitted.) 27 The Tribunal found on the basis of the evidence before it, particularly the impact on the applicant's two minor children, that the second primary consideration weighed marginally against cancellation of the Visa: at [83]. 28 The Tribunal then considered the last primary consideration, the expectations of the Australian community. It found, given the applicant's convictions for multiple domestic violence offences and the risk that he would reoffend and inflict further harm on vulnerable individuals, that the Australian community would not be prepared to give him another chance and would expect the Visa to be cancelled. 29 The Tribunal turned to the "other considerations". In relation to: (1) the strength, nature and duration of the applicant's ties to Australia, it considered the length of the applicant's time of residence in and positive contribution to Australia and the strength, nature and duration of his family or social links to Australia. As to the latter, the Tribunal noted that the evidence before it was that the applicant has substantial family ties to Australia "including five children and three grandchildren". At [109] of its reasons the Tribunal said: The Applicant's family, particularly his younger children and grandchildren, will be significantly impacted if he is returned to New Zealand as they have a close bond with him and he is involved in their daily lives and upbringing. There is no evidence to indicate that the Applicant's family would not be able to maintain regular contact with him via phone and other forms of communication if he returns to New Zealand. There is no evidence that his family members would be unable to visit the Applicant in New Zealand, finances permitting. The Tribunal concluded that, on balance, this consideration weighed against cancellation of the Visa; (2) the impact on Australian business interests, the Tribunal found there was no evidence of a relevant "employment link" and that the applicant did not claim that any Australian business interests would be affected by his removal; (3) the impact on victims, the Tribunal found that given NBDM's concerns about her safety and well-being and that of her children, the impact on the applicant's victims, particularly the fear of future harm, would be ongoing should the applicant remain in Australia. The Tribunal thus found that this consideration weighed in favour of cancelling the Visa; and (4) the extent of impediments if removed from Australia, the Tribunal found that the obstacles the applicant might experience in finding employment, accessing health and community support services and reintegrating into the community on his return to New Zealand were real but not insurmountable, and this consideration was neutral and weighed neither in favour of nor against cancellation of the Visa. 30 The Tribunal concluded that the first and third primary considerations weighed heavily in favour of cancelling the Visa and outweighed the weight of the second primary consideration, which favoured non-cancellation. As to the other considerations, one weighed in favour of the non-cancellation and another in favour of cancellation of the Visa. Having regard to those matters, the Tribunal found that the discretion in s 501(2) of the Act should be exercised to cancel the Visa.

The application 31 In his amended originating application filed on 16 April 2019 and relied on pursuant to leave granted on 24 April 2019 (Amended Application) the applicant raises two grounds of review as follows: 1. That the Second Respondent fell into jurisdictional error by failing to, in its decision, provide reasons for why it decided that one of the primary considerations being "the best interests of minor children in Australia" should weigh in the Applicant's favour and why it gave only marginal weight to that consideration. a. The Applicant had argued at a hearing conducted before the Second Respondent that the Primary Consideration "the best interests of minor children in Australia" should weigh heavily against cancellation of the Applicant's visa for several reasons. b. The First Respondent argued that the same primary consideration should weigh in favour of or weigh neutrally towards the Applicant's visa being cancelled for certain reasons. c. The Second Respondent in its decision, outlined both the Applicant and First Respondent's submissions and decided that the primary consideration should weigh marginally against cancellation of the Applicant's visa. d. The Second Respondent failed to provide reasons for why this primary consideration should weigh against the visa cancellation and failed to provide reasons for why only marginal weight should be afforded to that primary consideration. 2. That the Second Respondent fell into jurisdictional error by failing to adequately and properly consider the primary consideration espoused in Ministerial Direction 65 being "the best interests of minor children in Australia." a. The Second Respondent was bound to consider the primary consideration espoused in Ministerial Direction 65 being "the best interests of minor children in Australia." b. In discharging its duty, the Second Respondent was bound to first consider what "the best interests of minor children in Australia" were for each of the applicant's 2 children who were minors, and his 3 grandchildren who were minors, and to give individual consideration to their best interests. c. The Second Respondent was then to consider whether this primary consideration weighed in favour of, or was against or was neutral to the Applicant as well what weight must be given to it. d. The Second Respondent fell into error by failing to first make an assessment of what "the best interests of minor children in Australia" were before finding that this consideration weighed marginally against the visa cancellation. e. The Second Respondent erred and contravened Direction 65 by failing to consider, when assessing the best interests of each child, the matters prescribed by paragraphs 9.2(4)(b) and (d) of Direction 65. f. The Second Respondent erred, contravened and misapplied Direction 65 by reducing the weight to be given to the primary consideration of the best interests of the 5 minor children, by having regard to and giving weight to considerations that could not rationally bear on the children's best interests, namely the applicant's historical moral culpability for activities carried out prior to their birth (or the birth of all but one of them). (underlining omitted.)

Submissions 32 The applicant addressed grounds 1 and 2 together. Both concern the Tribunal's treatment of the best interests of the minor children. He noted that ground 1 attacks an alleged paucity of reasons while ground 2, which was the focus of the applicant's submissions, attacks the adequacy of the consideration required by the Direction. 33 The applicant observed that the Tribunal seemed to have accepted that he has a close and loving relationship with his two minor children and is actively involved in their upbringing; he has a close relationship with his three grandchildren; and that there was independent evidence that he plays a positive parental role in the children's lives. The applicant also noted that the Tribunal accepted NBDM's evidence that he had always been a loving and involved father and had never been violent towards any of the children. However, the applicant submitted that, having made those findings, the Tribunal then fell into error at [82]-[83] of its reasons (see [26]-[27] above) in the following ways: (1) the Tribunal did not give individual consideration to the interests of each child, as required by cl 9.2(3) of the Direction. In oral submissions counsel for the applicant developed this submission noting that there were two failures by the Tribunal: first, it failed to consider the interests of the minor grandchildren as distinct from those of the applicant's two minor children; and secondly, it failed to consider the interests of each minor child where there was evidence that one of the applicant's minor children had been born prematurely and had learning difficulties; (2) the Tribunal did not make any finding as to what each (or any) child's best interests were, contrary to well established authority, but appeared to have simply accepted the Minister's concession that, as a whole, the issue of the best interests of all the children weighed in favour of non-cancellation. The applicant contended that the Tribunal had to do more than simply accept the Minister's concession on this point and that its function, as an inquisitorial decision-maker, was to determine the best interests of each child; (3) while the reasoning is opaque, it is apparent that the Tribunal must have accepted the Minister's oral submission recorded at [82] of its reasons that the weight to be given to the best interests of the children should be reduced because of NBEM's childhood experiences. The applicant contended that these events happened before all but one of the children under consideration were born and thus these historical events could have no rational bearing on the best interests of those children; and (4) contrary to cll 9.2(4)(b) and (d) of the Direction, the Tribunal did not take into account the extent to which the applicant is likely to play a positive role in the children's lives or the likely effect that any separation from the applicant would have on each child. The applicant contended that the section dealing with the best interests of the minor children does not contain any findings on these issues. The applicant observed that the Tribunal did not however consider these matters to be irrelevant as it made findings about them when considering as an "other consideration" the strength of the applicant's ties to Australia. 34 The Minister responded to each of the submissions set out in the preceding paragraph (referring to each as a separate proposed ground). 35 In relation to the first submission (see [33(1)] above), the Minister submitted that the applicant misunderstood the Direction, which pursuant to cl 7(1)(a) only requires the Tribunal to address the factors listed "where relevant". He contended that there was no evidence or submission made to the Tribunal that the minor children had different interests requiring separate consideration. 36 In relation to the second submission (see [33(2)] above), the Minister submitted that this submission turns on a misreading of the decision in Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133 (Wan). The Minister contended that, in contrast to the present case, the error in Wan was a failure by the Tribunal to identify what decision should be made in the best interests of Mr Wan's child and what the key interests of Mr Wan's child actually were. 37 The Minister also submitted that there is no mandatory "checklist" with respect to the best interests of a child, referring in particular to Brown v Minister for Immigration and Border Protection (2015) 235 FCR 88 (Brown) at [34]. 38 The Minister submitted that accordingly there was no error by the Tribunal in considering the difficult question of the best interests of the applicant's minor children given that they were also the victims of his offending but would clearly benefit from his parenting if he stopped offending. 39 In relation to the third submission (see [33(3)] above), the Minister observed that the applicant alleges error on the part of the Tribunal in considering the evidence of his adult child as to the effect of his domestic violence on her in the context of the current minor children. The Minister submitted that this submission is misconceived as it fails to read the decision as a whole, whereupon it is apparent that the minor children were also victims of the applicant's offending. The Minister said that the Tribunal was required to weigh the children's best interests in the face of the future risks that the applicant posed to them. The Minister submitted that there was no error in looking at past harm as a guide to possible future harm. 40 In relation to the fourth submission (see [33(4)] above), the Minister again submitted that the applicant fails to read the Tribunal's decision as a whole. He observed that the Tribunal's finding at [109] of its reasons as to the "significant bond" between the applicant and his children was a clear reference back to the Tribunal's earlier findings about the children's best interests. The Minister submitted that the Tribunal's further discussion at [109] of its reasons about maintaining contact makes plain that these matters were not relevant to its determination that the minor children's best interests weighed in favour of the applicant remaining in Australia. The Minister contended there was no error in this approach and there is no doubt that the Tribunal took into account the effect of separation as it was the very premise of its findings as to the children's best interests.

Legislative framework 41 Section 501(2) of the Act provides: (2) The Minister may cancel a visa that has been granted to a person if: (a) the Minister reasonably suspects that the person does not pass the character test; and (b) the person does not satisfy the Minister that the person passes the character test. 42 There was no issue before the Tribunal or before me that the applicant did not pass the character test. Rather the issues raised for consideration concern the Tribunal's exercise of its discretion to cancel the Visa once the conditions in subs 501(2)(a) and (b) have been satisfied. 43 There was also no dispute between the parties that, in making its decision, the Tribunal was bound by s 499(2A) of the Act to comply with the Direction. The Tribunal was cognisant of that requirement. 44 Before proceeding further, it is convenient to set out relevant aspects of the Direction. 45 Clause 6.1 is headed "objectives". The purpose of the Direction is set out at cl 6.1(4), which provides that it is to guide decision-makers performing functions or exercising powers under s 501 of the Act, relevantly, to cancel a visa of a non-citizen who does not satisfy the decision-maker that he or she passes the character test. 46 Section 2 of the Direction is titled "exercising the discretion" and includes cll 7 and 8. Clause 7, titled "how to exercise the discretion", provides that, informed by the principles in cl 6.3, a decision-maker must take into account, relevantly, the considerations in Pt A in order to determine whether a non-citizen will forfeit the privilege of continuing to hold a visa. Part A of the Direction (see [48] below) identifies the considerations relevant to determining whether to exercise the discretion to cancel a non-citizen's visa. 47 Clause 8, titled "taking the relevant considerations into account", relevantly provides: (1) Decision-makers must take into account the primary and other considerations relevant to the individual case. … … (3) Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa. (4) Primary considerations should generally be given greater weight than the other considerations. (5) One or more primary considerations may outweigh other primary considerations. 48 Part A of the Direction sets out the "primary considerations" at cl 9 and the "other considerations" at cl 10. 49 One of the "primary considerations", which is central to this application, is the best interests of minor children in Australia affected by the decision. In that regard cl 9.2 of the Direction provides: 9.2 Best interests of minor children in Australia affected by the decision (1) Decision-makers must make a determination about whether cancellation is, or is not, in the best interests of the child. (2) This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to cancel the visa is expected to be made. (3) If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ. (4) In considering the best interests of the child, the following factors must be considered where relevant: a) The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact); b) The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements; c) The impact of the non-citizen's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child; d) The likely effect that any separation from the non-citizen would have on the child, taking into account the child's or non-citizen's ability to maintain contact in other ways; e) Whether there are other persons who already fulfil a parental role in relation to the child; f) Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child); g) Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and h) Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct. (emphasis added.) 50 Clause 10.2 of the Direction concerns, as one of the "other considerations", the strength, nature and duration of ties to Australia. That clause includes: (1) 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 cancellation 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).

Consideration 51 The first issue is whether the Tribunal considered the best interests of each of the applicant's two minor children individually and the best interests of the two classes of minor children, the applicant's children and his grandchildren respectively, as the applicant said it was bound by cl 9.3 of the Direction to do. 52 The applicant relied on Uelese v Minister for Immigration and Border Protection (2015) 256 CLR 203 (Uelese) in which the High Court considered Direction 55, which was the predecessor to the Direction and which was relevantly in the same terms as the Direction. Like the Direction, cl 7(1) of Direction 55 required the decision-maker to take into account the considerations in Pt A "where relevant" and cl 9.3 of Direction 55 required the decision-maker to determine whether cancellation was or was not in the best interests of any minor children. In that case statements provided to the Tribunal on the appellant's behalf before the hearing referred to the appellant having three children with his partner, Ms Fatai. However, it became apparent during the course of the Tribunal hearing that the appellant had two additional minor children. The Minister developed a submission that the interests of the two additional minor children were not "relevant" to the Tribunal's review, within the meaning of cl 7(1)(a) of Direction 55, because the appellant had not included their interests in the case he sought to present to the Tribunal. 53 A majority of the Court (French CJ, Kiefel, Bell and Keane JJ) rejected that submission for a number of reasons. First, because it relied on a misreading of cl 7(1)(a) of Direction 55. The Court said that the best interests of an applicant's minor children are "relevant" if such children exist and that fact is known to the Tribunal: Uelese at [61]. Secondly, because the submission sought to import into the Tribunal's inquisitorial review function notions appropriate to adversarial proceedings conducted in accordance with formal rules of pleading. Regardless of whether the appellant made the interests of his two additional children a positive part of his case, s 499 of the Act and Direction 55 required that the Tribunal "take into account the interests of any minor children of which it was aware in determining his application for review": Uelese at [62]-[64]. The majority continued at [64] saying: … The requirement of cl 9.3 of Direction 55 to consider the best interests of minor children in Australia affected by the decision is imposed on decision-makers in terms which are not dependent on whether an applicant for review argues that those interests are relevant as part of his or her "case". 54 At [66]-[67], in response to a submission that because of the way in which the appellant presented his case there was a paucity of evidence about the two youngest children such that the Tribunal could not be satisfied one way or the other as to where their best interests lay, their Honours said: 66 It is apparent that the paucity of evidence referred to in the last sentence of the passage from the reasons of the Tribunal cited above was not due to the unavailability of material evidence. The Tribunal not only declined to act upon the information which was put before it by Ms Fatai, but it also failed to make even the most cursory inquiry to follow up on this information. This is not a case like Paerau v Minister for Immigration and Border Protection, on which the Minister sought to rely; here, the paucity of evidence was a consequence of the view taken by the Tribunal of the preclusory effect of s 500(6H). 67 It is not necessary here to seek to chart the boundaries of the Tribunal's obligation to inquire after the best interests of the children of an applicant for review. There may be cases, hopefully rare, where the evidence presented by the parties does not alert the Tribunal that minor children in Australia may be affected by the decision. There may also be cases where the evidence is such that the only determination which can be made in obedience to cl 9.3(1) of Direction 55 is that cancellation is neutral so far as the best interests of any minor child are concerned. In this regard, it is to be noted that cl 9.3(1) requires a "determination about whether cancellation is, or is not, in the best interests of the child" (emphasis added). Sometimes the best decision "about" whether cancellation is, or is not, in the best interests of the child may be that it is neither. (footnotes omitted.) 55 In this case the Tribunal was aware of and made reference to the applicant's two minor children and his three minor grandchildren. The criticism levelled at the Tribunal is that it failed to consider and make findings about the differential interests of the two minor children and about the interests of the minor grandchildren as a separate category to that of the minor children. 56 In Nigam v Minister for Immigration and Border Protection [2017] FCA 106; (2017) 71 AAR 369 (Nigam) Perry J considered the Direction. At [16]-[17] her Honour addressed cll 7 and 8 of the Direction saying: 16 Thirdly, para 7(1) requires a decision-maker, "[i]nformed by the principles in para 6.3", to take into account "where relevant" the considerations in (relevantly) Pt B of Direction No 65 when determining whether to exercise the discretion to refuse the grant of a visa pursuant to s 501(1) of the Act, while para 8 gives guidance as to the manner in which primary and other considerations are to be weighed against each other in that decision-making process. As I explained in Paerau v Minister for Immigration and Border Protection (2014) 219 FCR 504; 63 AAR 164 (Paerau): 101. Clause 8(1) of the Direction then provides that a primary or other consideration under the Direction "must" be taken into account where it is "relevant to the individual case". Clause 8 also directs the manner in which primary considerations are to be weighed against each other and against other considerations. Thus, by virtue of cl 8(4), primary considerations should generally be given greater weight than the other considerations. Furthermore, cl 8(5) provides that one or more primary considerations may outweigh other primary considerations. (While Paerau concerned the predecessor direction, being Ministerial Direction No 55 - Visa refusal and cancellation under s 501 (Cth) (Direction No 55), that Direction is not relevantly different from Direction No 65.) 17 Fourthly, it is for the Tribunal to determine what is relevant for the purposes of paras 7 and 8. As, by analogy, Perram J held in SZTMD v Minister for Immigration and Border Protection (2015) 150 ALD 34 at [20], "[t]he usual way of reading provisions such as these clauses is that they are construed as requiring the formation by the decision-maker of an opinion on the standard (here, relevance) imposed; that is to say, they are not generally construed as requiring the existence of a jurisdictional fact: see, for example, Australian Heritage Commission v Mount Isa Mines Ltd (1995) 60 FCR 456 at 466-468 (FC)." (emphasis in original.) 57 That is, the decision-maker must take into account "where relevant" the considerations, in this case, in Pt A of the Direction. However, it is for the decision-maker to determine what considerations are relevant to the individual case before him or her. Similarly, in CPJ16 v Minister for Immigration and Border Protection [2018] FCA 450 which concerned cl 11.2, the equivalent of cl 9.2 found in Pt B of the Direction, Bromwich J accepted at [16] that: … The obligation to have regard to particular factors in cl 11.2(4) in relation to the best interests of a child is expressly conditioned upon each being considered to be relevant, a matter that was for the Tribunal to determine (citing Nigam v Minister for Immigration and Border Protection [2017] FCA 106 at [12]-[20], per Perry J, in which her Honour observed that it is for the Tribunal to determine what is relevant). 58 Having regard to these principles, I turn now to consider the applicant's submission that the Tribunal failed to consider the best interests of each of the two minor children. In response, the Minister relies on the decision in Nigam in support of his contention that the Tribunal only had to consider the factors listed in cl 9.2 where relevant (see [35] above). The Minister accepted that the best interests of the minor children had to be considered, but submitted that the Tribunal did not have to give individual consideration to the interests of the younger minor child if the Tribunal did not consider that to be relevant. That is, the matters set out in cl 9.2 of the Direction are not mandatory and do not act as a checklist where each item must be adverted to even if not relevant to the particular circumstances. 59 The Applicant's SOFIC filed with the Tribunal was before me. The best interests of the children were addressed at [57]-[65] of the Applicant's SOFIC. That part of NBDM's Declaration that addresses the applicant's relationship with his children is set out in full at [61] of the Applicant's SOFIC including where NBDM refers to the premature birth and learning difficulties of the younger minor child and states that if the applicant "were forced to return to New Zealand, it would be exceptionally difficult for [the younger minor child] to be separated from his father, and I do not know how I would explain that to him". The Applicant's SOFIC did not otherwise differentiate between the interests of the applicant's two minor children. 60 The Tribunal was clearly aware of the two minor children and, given the reference to NBDM's Declaration in its reasons, would have been aware that the younger minor child had learning difficulties and that it would be difficult for him to be separated from his father. However, the Tribunal did not give separate consideration to the interests of the younger minor child. I infer that this was because it formed the view that his interests did not relevantly differ from those of the older child. That was a matter for the Tribunal to determine as part of its consideration. That is, it was for the Tribunal to determine, based on the individual case before it, what was relevant for the purposes of its consideration of the best interests of the minor children affected by the decision. 61 This is not a case like Uelese where it was said that the applicant failed to argue that the best interests of the minor children were part of his case. The contrary is true and the Minister does not cavil with that. Rather what is put by the Minister, and I accept, is that, based on the material before it, the Tribunal did not consider that the interests of each of the applicant's minor children were different in terms of their relationship with the applicant so as to require individual consideration to be given to their best interests. I infer that it was not a matter that the Tribunal considered to be relevant to the second primary consideration based on the circumstances of the case. 62 I turn then to consider whether the Tribunal made findings about the best interests of the minor grandchildren. It is clear that the Tribunal was aware of the need to consider the interests of the minor grandchildren as well as the minor children and refers, in summary fashion, to evidence about the applicant's relationship with each of those groups of children: see [79] and [80] of the Tribunal's reasons. At [81] the Tribunal referred to independent evidence that "confirms the positive parental role that the Applicant plays in the children's lives and his potential to support them emotionally and contribute to their upbringing" and quoted a part of NBDM's Declaration that it said confirmed "the involvement of the Applicant in their Children's lives". 63 However, I do not accept that, when read together, those paragraphs demonstrate that the Tribunal made findings about the interests of both the minor children and the minor grandchildren. Rather, the Tribunal's focus at [81] on NBDM's Declaration suggests that the Tribunal made findings about the interests of the minor children only. In that part of NBDM's Declaration referred to by the Tribunal, NBDM clearly only speaks of the applicant's relationship with his own children. The independent evidence referred to in the Tribunal's footnote to [81] does not alter this conclusion. That material predominantly refers to the applicant's relationship with his own children and refers only in passing, in two of the statements cited, to the grandchildren. The Tribunal did not consider the interests of the grandchildren at [81] of its reasons. Nor was any such finding made by the Tribunal at [82]-[83] of its reasons. The Tribunal recognised the grandchildren as a category of children whose interests would be affected by the decision but then failed to make any determination about their interests as required by the Direction. 64 The applicant then contends that the Tribunal failed to make any finding as to what each, or any, of the minor children's best interests were but simply accepted the Minister's concession that the best interests of the children weighed in favour of non-cancellation. The Tribunal has, as I have observed in the preceding paragraph, referred to the minor children and minor grandchildren and made findings in relation to the minor children. The Minster contended that these findings in [81] also constituted the Tribunal's finding about the best interests of the minor children and grandchildren. I cannot accept that contention. First, for the reasons set out at [63] above, the Tribunal's findings at [81] of its reasons related to the minor children only and not the minor grandchildren. Secondly, the Tribunal's finding at [81] does not constitute a finding about the best interests of the minor children. 65 The Minster drew an analogy between this case and Brown where the issues for determination included whether the Minister in making his decision to cancel the appellant's visa considered the best interests of the children. There the appellant accepted that the Minister had made findings about the nature and intensity of the relationship between him and his children but contended that the Minister had failed to consider the impact of cancellation on the children looking forward. That is a different issue to the one before me. In any event the Minister relied on Brown as an example of where reasons can be briefly stated but still be found to have addressed required matters. I accept that it does not follow that brevity of expression means that a decision-maker has not considered all mandatory or relevant factors. Each case will turn on its own facts but this is not a case where it can be said, either because of the express words used or by inference, that in making its findings about the positive role the applicant plays in his minor children's lives in [81] the Tribunal was also making a finding about the best interests of those minor children. 66 That said, contrary to the applicant's contention I do not think that the Tribunal failed to make a finding about the applicant's minor children's best interests. After referring to the Minster's submissions at [82] of its reasons, the Tribunal made a finding that the best interests of the minor children weighed marginally against cancellation. It did so based on the evidence before it, which must be taken to include the matters set out at [79] and [81] of its reasons and, given its reference to the impact on the applicant's two minor children, I infer its antecedent findings that some of the applicant's offending took place in the presence of the minor children who were also victims of his crimes (findings that were made in relation to the first primary consideration, protection of the Australian community from criminal or other serious conduct, at [49]-[51], [61] and [64] of the Tribunal's reasons). Implicit in the Tribunal's finding is that the cancellation of the Visa was not in the best interests of the applicant's minor children. 67 The next issue concerns [82]-[83] of the Tribunal's reasons. There the Tribunal considers submissions made by the Minister in relation to the weight it should give the second primary consideration concerning the best interests of the minor children and then sets out its conclusion about that matter. The applicant attacks that part of the Tribunal's reasons on two bases. First, it is said that the Tribunal failed to provide reasons for why only marginal weight should be afforded to that primary consideration; and secondly, it is said that the Tribunal misapplied the Direction by reducing the weight to be given to the best interests of the minor children by having regard to considerations that could not rationally bear on their best interests. 68 The Tribunal did not fail to provide reasons for its conclusion. It is apparent that the Tribunal accepted the Minster's submissions set out at [82] of its reasons. Having done so it then concluded, based on the evidence before it, which must be taken to mean the evidence set out at [78]-[81] of its reasons about his relationship with the minor children and its anterior findings insofar as they concerned the applicant's two minor children as victims of his offending, that it would only give marginal weight to this consideration. The Tribunal's conclusion was, having regard to the whole of its decision, sufficiently explained. 69 The question that then arises is whether the Tribunal was entitled to take into account some of the matters referred to at [82] in reaching its conclusion at [83]. At [82] of its reasons, the Tribunal records the Minister's written and oral submissions to it on the weight that should be given to the second primary consideration: first, the Minister's written submission that, while on the basis of the evidence the best interests of the minor children weigh in favour of not cancelling the Visa, minimal weight should be afforded to this consideration in the view of the "not insignificant risk of re-offending"; and secondly, the Minister's oral submissions and his reliance on the evidence of NBEM that when she was growing up she witnessed the harm caused by the applicant to NBDM and his submission that the disregard the applicant showed to his children, who frequently witnessed him assault NBDM, indicated that this primary consideration could not weigh in the applicant's favour and could only be a neutral consideration. The Minister accepted that it could be inferred that the Tribunal relied on that submission in coming to its conclusion at [83] of its reasons. 70 The Minister submitted that in referring to the adult daughter's evidence the Tribunal was identifying, by reference to a witness, the type of harm to which the minor children, who did not give evidence, could be exposed. The Minister said that the Tribunal had made detailed findings about the children being victims of the applicant's offending because they witnessed the applicant's conduct and that, in referring to NBEM's evidence, it was "amplifying the experience of children who witness domestic violence". But it is difficult to view the Tribunal's reference to NBEM's evidence in that way. While a neat characterisation, the Tribunal provides no explanation of how that evidence fits in to its consideration of the issue before it or how it provided support for the conclusion it reached. It is not at all clear what relevance NBEM's evidence, who by that time was an adult, had to the issue it was considering: the best interests of the minor children affected by the decision. Indeed that evidence could have little or no relevance. 71 In my opinion, in relying on NBEM's evidence as one of the matters that went to its ultimate conclusion, the Tribunal took into account an irrelevant consideration. While I accept that the applicant's prior conduct and any likely future conduct, and the impact of that conduct on the children may be taken into account, where relevant, when considering the best interests of the minor children (see cl 9.2(4)(c) of the Direction), I cannot see how NBEM's evidence was relevant to that factor. 72 The final issue raised by the applicant is the alleged failure on the part of the Tribunal to take into account the matters mandated by cll 9.2(4)(b) and (d) of the Direction (see [49] above) in considering the best interests of the minor children. The applicant relies on [109] of the Tribunal's decision in support of his submission that the Tribunal clearly considered those matters to be relevant given its finding there that the applicant's family "particularly his younger children and grandchildren" would be impacted if he is returned to New Zealand because of their close bond and his involvement in their upbringing. However the applicant says that the Tribunal failed to address those matters when considering the best interests of the minor children. 73 At [108]-[110] of its reasons the Tribunal considered the strength, nature and duration of the applicant's family and social links, being a component of one of the "other considerations" set out in cl 10 of the Direction which are to be taken into account by the decision-maker where relevant. No criticism is made of the Tribunal's findings in that regard, nor could there be. The Tribunal considered the applicant's links to Australia by reference to his family, who were identified at [108] as including his five children and three grandchildren. The error is said to be in the Tribunal's failure to also consider the positive role the applicant plays in the lives of those children who are still minors, and the effect of separation on them, when it considered the best interests of the minor children affected by the decision. 74 The Minister contended that the findings at [109] are about the applicant's large family, extending beyond the children. In his "personal details form" dated 13 February 2015 provided to the Department the applicant said that in addition to his children his mother, father, brother, sister, 10 uncles/aunts, 12 nieces/nephews and approximately 20-30 cousins live in Australia. Despite acknowledging that the applicant has substantial family ties to Australia, the Tribunal only expressly refers to the children at [109] of its reasons in considering the strength, nature and duration of the applicant's family and social links. The Tribunal concluded that on balance this consideration weighed against cancellation of the Visa. Included in that weighing exercise was the impact that the applicant's return to New Zealand would have on the children. 75 I accept the applicant's submission that the finding in relation to this consideration establishes that the Tribunal failed to take into account the factor in cl 9.2(4)(d) of the Direction in considering the second primary consideration, the best interests of the minor children. The Tribunal clearly formed a view about the relevance of the likely effect of separation on the children, as is evident from the pivotal role that matter played in the Tribunal's consideration of the applicant's family and social links, and yet did not have regard to that matter as part of its consideration of the best interests of the minor children. So much is clear from a review of the Tribunal's reasons at [77]-[83]. On the other hand, I do not accept that the Tribunal failed to consider the requirements in cl 9.2(4)(b) of the Direction, at least in relation to the minor children. It considered the extent to which the applicant was likely to play a positive role at [79] and [81] of its reasons in connection with its consideration of the best interests of those minor children. Given my conclusion about the failure of the Tribunal to make a finding about the best interests of the grandchildren, it is not necessary for me to consider whether the Tribunal considered the factor in cl 9.2(4)(b) in relation to those children. 76 In considering the second primary consideration, the Tribunal: failed to consider and make a determination about whether cancellation was or was not in the best interests of the minor grandchildren; took into account an irrelevant consideration; and failed to consider the factor prescribed by cl 9.2(4)(d) of the Direction, which was clearly relevant. 77 The Minister submitted faintly that even if the Tribunal erred it was necessary for those errors to be material for the applicant to succeed. In my opinion, the errors referred to above, taken separately or together, could realistically have made a difference to the outcome of the Tribunal's consideration of the best interests of the minor children and, in turn, could realistically have made a difference to the ultimate outcome reached by the Tribunal to cancel the Visa given the balancing exercise undertaken by it. That is, the failure to consider the best interests of the grandchildren, exclusion of the irrelevant evidence and inclusion of consideration of the factor in cl 9.2(4)(d), which as is apparent was a matter that weighed in favour of the applicant in the Tribunal's consideration of his links to the community, could realistically have changed the Tribunal's conclusion about the weight to be given to the second primary consideration. If so, that primary consideration would then carry different, likely greater, weight in the overall balancing exercise undertaken by the Tribunal in determining whether to cancel the Visa. In other words those matters could realistically have led to a different outcome: see Minister for Immigration and Border Protection v SZMTA (2019) 363 ALR 599; [2019] HCA 3 at [45]. 78 In those circumstances I find that the Tribunal fell into jurisdictional error. The applicant has made out ground 2 of the Amended Application.

NON-PUBLICATION 79 In his Amended Application the applicant seeks an order that the publication of his name, address or any other information tending to reveal his identity, that of his former partner and his children or grandchildren be prohibited on the grounds set out in s 37AG(1) of the Federal Court of Australia Act 1976 (Cth) (FCA Act). The order was sought so as to protect the identity of the applicant's minor children and grandchildren and was supported by the Minister on that basis. 80 Section 37AF(1)(a) of the FCA Act gives the Court the power to make a suppression or non-publication order prohibiting or restricting the publication or other disclosure of information tending to reveal the identity of any party to or witness in a proceeding before the Court or any person who is related to or otherwise associated with any party to or witness in a proceeding before the Court. Section 37AG sets out the grounds for making such an order which include where the order is necessary to prevent prejudice to the proper administration of justice: see s 37AG(1)(a). 81 In deciding whether to make a non-publication order, the Court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice: see s 37AE of the FCA Act. In Chen v Migration Agents Registration Authority (No 1) [2016] FCA 649 at [10] Griffiths J recognised that the circumstances in which a suppression or non-publication order is requested can vary enormously. At [11] his Honour said: It is well established that the threshold which a suppression order applicant must satisfy is high and that mere embarrassment, inconvenience, annoyance or unreasonable or groundless fears will not suffice (see, for example, Cascade Coal at [30] per Foster J). 82 Here the interests that are sought to be protected are those of minor children who are not party to the proceeding. The basis for preventing the publication of material which would identify them goes beyond mere embarrassment or inconvenience. In my opinion the threshold for making the order sought has been met. 83 I will make an order pursuant to s 37AF(1) of the FCA Act on the ground set out in s 37AG(1)(a) of the FCA Act, namely to prevent prejudice to the proper administration of justice. The order should be made for the period ending when the youngest child reaches 18 years of age which is 22 January 2034.

conclusion 84 In light of the matters set out above, the Amended Application should be allowed with costs. I will make the necessary orders quashing the Tribunal's decision and remitting the matter to the Tribunal for determination. I certify that the preceding eighty-four (84) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Markovic.

Migration Act 1958(Cth)s 501(2)

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Judgment (10 paragraphs)

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