Nguyen v Minister for Immigration, Citizenship and Multicultural Affairs

1. The applicant be granted leave to file and rely upon the amended originating application attached to his counsel's written submissions.
2. The amended originating application be dismissed.
3. The applicant pay the first respondent's costs of the proceedings. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

JACKMAN J: 1 The applicant seeks judicial review of a decision by the Administrative Appeals Tribunal (Tribunal) to affirm the decision of a delegate of the Minister not to revoke the cancellation of the applicant's Partner (Class BC Subclass 100) visa (Visa) under s 501CA(4) of the Migration Act 1958 (Cth) (Act). The grounds of jurisdictional error relied upon by the applicant in his amended originating application are that: (1) the Tribunal failed to give proper, genuine and realistic consideration to the applicant's representations regarding the impact that the non-revocation of the cancellation of the Visa would have on the applicant's nephews; and (2) the Tribunal misapplied "Direction 99 - Visa Refusal and Cancellation under s 501 and Revocation of a Mandatory Cancellation of a Visa under s 501CA" (Direction 99) in its assessment of the best interests of the applicant's nephews. 2 The applicant is a 48-year-old citizen of Vietnam who arrived in Australia on a student visa on 29 November 1998. The applicant then departed Australia on 28 June 2006, and returned on a Partner (Subclass 309) visa on 17 April 2009. On 19 May 2010, the applicant was granted a Partner (Class BC, Subclass 100) visa, being the Visa referred to above. 3 On 26 September 2014, the applicant was convicted in the District Court of New South Wales for supply of a commercial quantity of a prohibited drug and was sentenced to six years imprisonment. On 21 December 2015, the Visa was the subject of mandatory cancellation under s 501(3A) of the Act. On 10 May 2017, this visa cancellation was revoked under s 501CA(4). The Minister set aside the revocation decision under s 501BA(2) in December 2017. An application to the Federal Court seeking judicial review of the Minister's decision was dismissed, but an appeal against this decision was allowed by the Full Court of the Federal Court, and the applicant's visa was reinstated: Nguyen v Minister for Home Affairs [2019] FCAFC 128; (2019) 270 FCR 555 (Jagot, Robertson and Farrell JJ). 4 On 7 December 2021, the applicant was convicted in the District Court for the manufacture of a commercial quantity of a prohibited drug with a sentence of five years imprisonment, and supply of a commercial quantity of a prohibited drug with a sentence of two years imprisonment. The applicant was released from prison and transferred to immigration detention on 4 June 2023. On 6 May 2022, the Visa was subject to mandatory cancellation under s 501(3A) of the Act. 5 On 3 June 2022, the applicant made representations requesting revocation of the cancellation decision. On 14 September 2023, the delegate decided not to revoke the cancellation decision. On 21 September 2023, the applicant applied to the Tribunal for review of the non-revocation decision. On 7 December 2023, the Tribunal affirmed the non-revocation decision, and the Tribunal's reasons were provided on 21 December 2023. 6 Section 501(3A) of the Act provides that the Minister must cancel a visa that has been granted to a person if the Minister is satisfied the person does not pass the character test, and the person is serving a sentence of imprisonment on a full-time basis in a custodial institution for an offence against the law of the Commonwealth, state or a territory. The "character test" is defined in s 501(6) and includes where a person has a "substantial criminal record" (s 501(6)(a)). 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 (s 501(7)(c)). Under s 501CA(4) of the Act, the Minister may revoke a decision to cancel a visa made under s 501(3A) if the person makes representations in accordance with an invitation provided for in s 501CA(3), and the Minister is satisfied that the person passes the character test or that there is another reason why the decision should be revoked. 7 The exercise of the discretion to revoke a cancellation under s 501CA is to be exercised having regard to Direction 99, which came into effect on 3 March 2023 (ss 499(1) and (2A)). At para 5.2, Direction 99 sets out six principles that must be considered by the Tribunal. Informed by these principles, a decision maker must take into account the primary and other considerations identified in Direction 99 where they are relevant to the decision (at para 6). The primary considerations are set out at para 8, and include as item 4 the best interests of minor children in Australia. The other considerations are set out at para 9. 8 In relation to the best interests of minor children affected by a decision, decision makers must make a determination about whether non-revocation under s 501CA is or is not in the best interests of a child affected by the decision: para 8.4(1). Para 8.4(4) of Direction 99 provides that, in considering the best interests of the child, a number of factors must be considered where relevant, including: (a) 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; and (b) any known views of the child (with those views being given due weight in accordance with the age and maturity of the child). 9 In the present case, the Tribunal concluded at paras 119-22 that: (a) the applicant's offending was serious, and the protection of the community weighed heavily against revocation of the cancellation decision; (b) the expectations of the Australian community also weighed heavily against the revocation; (c) the applicant's removal would be detrimental to his partner and daughter, and the applicant's ties to Australia were to be afforded significant weight in favour of revocation; (d) the best interests of the applicant's nephews also weighed in favour of revocation. However, his relationship with his nephews was regarded as non-parental, and the Tribunal noted that there had been long periods of absence. Despite this, the Tribunal concluded that the applicant performed a "father-like" role, and this primary consideration was afforded moderate weight in favour of revocation; (e) the impediments faced by the applicant if he were to be removed from Australia were to be afforded moderate weight in favour of revocation; and (f) the protection of the Australian community and expectations of the Australian community outweighed the considerations in favour of revocation. Accordingly, there was not another reason why the mandatory cancellation of the applicant's visa should be revoked. 10 In accordance with those conclusions, the Tribunal affirmed the delegate's decision not to revoke the cancellation of the applicant's visa (at para 123). 11 The Minister submits, and I accept, that the Tribunal's analysis of the best interests of the applicant's nephews demonstrates the following process of consideration and reasoning: (a) The Tribunal recorded and considered the evidence given by the applicant and the applicant's wife, daughter, sister-in-law and nephews relating to the relationship between the applicant and his nephews, and the impact that his removal from Australia would have on his nephews (at paras 25-6, 34, 43, 47-51). (b) That evidence included evidence from the applicant and his wife, daughter and sister-in-law that the applicant was very close to his nephews, and that his nephews considered him to be a second father (expressed variously as "a father" by the applicant at para 26, "a second father" by the applicant's partner at para 34, "a parental figure" by the applicant's daughter at para 43, and "a father" by the applicant's sister-in-law at para 49). (c) The evidence considered also included evidence from the applicant's sister-in-law that, when asked about how her sons would feel if the applicant was removed from Australia, her eldest son asked to accompany her to the Tribunal, and had asked her to tell the Tribunal to forgive the applicant so he can teach his nephews to become good men (at para 50). The Tribunal recorded the statement of the applicant's sister-in-law that she believed her children would be shocked and without a male role model in the family if the applicant was removed from Australia, and that losing the applicant would be a big loss as she needed the applicant's help raising her sons because she has diabetes and is in poor health (at para 51). (d) The Tribunal noted the applicant's contention that it was in the best interests of the applicant's nephews that he remain in Australia (at para 96). (e) The Tribunal referred to the evidence of the applicant's sister-in-law that the applicant has a close relationship with his nephews, that they look up to him as a "secondary father", that the applicant regularly cared for the children when not in prison or detention, that both children are attached to the applicant and will suffer without him, and that he has been important to their development as they respect and listen to the applicant (at para 97). (f) The Tribunal noted that the 16-year-old nephew (referred to as "Child A") provided a statement regarding the applicant in which he acknowledges he has not seen the applicant for two years, but states they remain close, and that the applicant "loved us like his own children" (at para 98). (g) The Tribunal noted that the applicant's nephews lived with their mother, and the relationship they have with the applicant is non-parental and the applicant is not a primary caregiver. Nonetheless, the Tribunal recognised the children stayed with the applicant's family at times, and they share a close relationship with him despite the applicant having limited recent interaction with his nephews, owing to his having been in prison or detention for most of their lives (at para 99). The Minister submits, and I accept, that this comment was made by the Tribunal based on the fact that, since the applicant first went to prison on 7 July 2013 (when the applicant's nephews were one and five years old) the applicant has spent the majority of his time in prison or immigration detention. (h) The Tribunal stated it was satisfied that the primary consideration of the best interests of minor children in Australia affected by the decision weighed in favour of revoking the cancellation of the Visa (at para 100). In reaching this conclusion, the Tribunal plainly accepted that it was in the best interests of the applicant's nephews for the applicant to remain in Australia. (i) In the final part of its reasons, the Tribunal reiterated its conclusion that the best interests of the applicant's two nephews weighed in favour of revocation. However, the Tribunal considered that the applicant's relationship with his nephews was non-parental, and that there had been long periods of absence. Nonetheless, the Tribunal acknowledged that he performs a "father-like" role, and this primary consideration was afforded moderate weight in favour of revocation (at para 120). 12 The applicant submits that, in making a decision under s 501CA(4), a decision maker "must give proper, genuine and realistic consideration to the representations made by the applicant", relying upon Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 275 CLR 582 at [26]-[27]. However, in that case, Kiefel CJ, Keane, Gordon and Steward JJ stated, at [26] (omitting citations): Labels like "active influential process" and "proper, genuine and realistic consideration" must be understood in their proper context. These formulas have the danger of creating "a kind of general warrant, invoking language of indefinite and subjective application, in which the procedural and substantive merits of any [decision-maker's] decision can be scrutinised". That is not the correct approach. As Mason J stated in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [(1986) 162 CLR 24 at 40], "[t]he limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind". The court does not substitute its decision for that of the administrative decision maker. 13 The language of "proper, genuine and realistic consideration" is to be avoided where possible: Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216; (2018) 267 FCR 643 at [42] (Rares and Robertson JJ). 14 The established principles about the degree of consideration required of an applicant's representations were set out by the Full Court of the Federal Court (Katzmann, Jackson and McEvoy JJ) in Jabari v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 98; (2023) 298 FCR 431 at [55] (omitting citations): (1) 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". (2) What is required is the reality of consideration by the decision maker, the Court on judicial review being required to assess, in a qualitative way, whether the decision maker has, as a matter of substance, had regard to the relevant matter. (3) The onus lies on the appellant to establish, on the balance of probabilities, that a relevant matter was not considered, taking into account that the reasons of the Tribunal must be read fairly and not in an unduly critical manner. (4) Although the likely effect that any separation from the applicant would have had on his children was a mandatory consideration because of Direction 90 (since replaced by Direction 99), not because it was among his representations, the representations nevertheless remain relevant. The requisite degree of consideration is affected by the centrality to the issues of the matter with which it is said the decision maker did not engage, and the prominence the matter assumed in the representation. 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. The fundamental question is the importance of the material to the exercise of the Tribunal's function, and thus the seriousness of any error. (5) Whether or not a matter has been considered can be a matter of inference drawn from the reasons as a whole. For example, there may be 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. On the other hand, the inference that a failure to set out reasoning in relation to a matter signifies a failure to consider it should not be drawn too readily where the reasons are otherwise comprehensive, and the issue has at least been identified at some point. 15 The applicant argues that the Tribunal failed to give proper, genuine and realistic consideration to his representations (and in doing so, failed to properly consider the matters at paras 8.4(4)(d) and (f) of Direction 99), particularly in relation to the harm that would be caused to the applicant's nephews by his removal from Australia. The applicant advances the following five matters in support of that submission. 16 First, the applicant submits that the Tribunal did not make any reference to, nor describe, the consequences for the applicant's nephews if the applicant was removed from Australia, and did not describe the nature, extent or duration of the harm or effect that would be caused to these children by the applicant's removal. I reject that submission. The Tribunal did describe the consequences for the applicant's nephews if the applicant was removed from Australia. The Tribunal referred to evidence from the applicant's sister-in-law that she believed the children would be shocked, and without a male role model in the family, if the applicant was removed from Australia, and that losing the applicant would be a big loss, as she needed the applicant's help raising her sons because she has diabetes and is in poor health (at para 51). The Tribunal also referred to evidence from the applicant's sister-in-law that the applicant's nephews are attached to the applicant and will suffer without him, and that he has been important to their development, and that they respect and listen to the applicant (at para 97). In doing so, the Tribunal described the nature, extent or duration of the harm or effect that would be caused to these children by the applicant's removal. 17 Second, the applicant submits that the Tribunal did not make any reference to the Australian Institute of Health and Welfare report entitled "The Role of the Family in Child Wellbeing" (2015) and the material it contained concerning the likely impact that the applicant's removal would have on his nephews in light of their crucial stage of development. That report referred to the importance of "family functioning" and time spent by children with their families, and stated: Families facing adversities in these areas are likely to experience levels of dysfunction which will have health, behavioural and social repercussions for young family members, and poor outcomes for them later in life. 18 That submission is factually correct, but in my view the Tribunal was not required to make any reference to the Australian Institute of Health and Welfare report and the highly generalised material it contained. The Tribunal was not required to refer to every piece of evidence and every contention made by the applicant: 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); Jabari at [55(4)]. 19 Third, the applicant submits that the Tribunal did not enter into any assessment of whether the applicant's nephews would be able to maintain contact with the applicant if he was removed from Australia. In my view, it can be inferred from the references in the Tribunal's reasons to the evidence from the applicant's sister-in-law that the applicant's nephews would be shocked and without a male role model if the applicant was removed from Australia (at para 51) and that they will suffer without him (at para 97) that the Tribunal took into account that it would be difficult for them to maintain contact with him in person if he was removed. Further, it should be inferred from the Tribunal's reference to the evidence given by the applicant's sister-in-law, namely that the applicant's nephews had not visited the applicant since June 2020 but had been in regular contact with him by phone (at paras 47-8), that the Tribunal considered that the applicant's nephews could continue to maintain telephone contact with the applicant if he was removed. Indeed, in relation to the applicant's future contact with his partner and daughter, the Tribunal expressly referred to the ability to maintain contact by telephone or other electronic means (para 94). It is obvious, and does not need to be expressly stated, that the same means would be available to be used by his nephews to maintain contact with him. 20 Fourth, the applicant submits that, beyond noting that Child A had stated that the applicant loved his nephews like his own children (para 98), the Tribunal did not refer at all to the views of either of the applicant's nephews, which were plainly that they wanted the applicant to stay in Australia, and considered that they would suffer harm if he were to be removed. The applicant draws attention to evidence given by Child A, who stated that he "begged" the Tribunal to let the applicant come home, and that without the applicant as a "father figure" he was "quite lost". However, the Tribunal did refer to the views of the applicant's nephews as referred to in Direction 99 at para 8.4(f). In particular, the Tribunal referred to evidence from the applicant's sister-in-law that the applicant's nephews referred to him as a father (at para 49), that the elder of the applicant's nephews had asked to accompany his mother to the Tribunal and had asked her to tell the Tribunal to forgive the applicant (at para 50), and that the elder nephew had provided a statement in which he stated that the applicant's nephews remained close with the applicant and that the applicant "loved us like his own children" (at para 98). Accordingly, I reject the applicant's submission. 21 Fifth, the applicant submits that the Tribunal concluded that the applicant's role was "non-parental" (at para 120) in circumstances where all of the evidence before the Tribunal was that the applicant acted as the boys' father. However, the Minister submits, and I accept, that the Tribunal's reference to the applicant's relationship with his nephews as non-parental is entirely correct when understood in the specific context in which the Tribunal used this term. The Tribunal concluded the applicant's relationship with his nephews was non-parental because he was not their biological father, and was not a primary caregiver (at para 99). However, as I have said above, the Tribunal acknowledged that the applicant performs a "father-like" role, and referred to evidence from the applicant and the applicant's partner, daughter and sister-in-law that the applicant was very close to his nephews, and that his nephews considered him to be a "second father" (at paras 25-6, 34, 43, 47-51). 22 Accordingly, the grounds contended for by the applicant in his amended originating process are not established. It is not necessary to consider the applicant's further submission that the alleged failures in decision making, as contended for by the applicant, were material to the Tribunal's decision. In my view, there were no such failures. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jackman.