NRWQ v Minister for Immigration, Citizenship and Multicultural Affairs

Background 5 The appellant is a 39-year-old male, born in Myanmar. He is a stateless Rohingyan and arrived in Australia as an unauthorised maritime arrival on 27 May 2013, accompanied by his (now-ex) wife. 6 It is uncontroversial that the appellant has a serious criminal history in Australia, involving family violence. This history is summarised at paragraphs [21] to [26] of the Tribunal's decision. It would seem that his wife re-partnered with another man (identified as "AH" by the Tribunal), who had been living with the appellant and his wife in their home. 7 The appellant's most recent offending was described by the Minister in submissions as a premeditated violent attack on AH, which required the injuries to AH's head to be treated for three days in hospital. The Tribunal described this offence at [33] of its reasons as follows: With respect to the incident when the applicant caused an injury to AH, this involved some planning because the applicant was waiting outside the unit at 5am and confronted AH as he left to go to work. This incident took place in June 2018, well over a year after the family violence episodes in 2017 and after intervention orders had been made separately with respect to the wife and AH. The applicant denied the incident when confronted by police. The police statement on which he was convicted said: The accused has attended the victim's address in the possession of a weapon, behaved in a calculated and violent manner in breach of Family Violence intervention Order, and Personal Safety Intervention Order has assaulted the victim causing injuries to his head requiring three days hospital of treatment and ongoing emotional distress. … The accused has shown no remorse and no regard for the psychological impact his offending has had on the protected persons and the accused['s] children. 8 The appellant was sentenced to a term of imprisonment of 123 days for this offence. 9 The appellant had applied for the Visa on 6 September 2017. On 3 December 2019 the appellant was assessed as being at risk of persecution if he was returned to Myanmar. On 23 May 2022 a delegate of the Minister refused to grant the appellant the Visa under s 501(1) of the Migration Act 1958 (Cth). 10 On 7 June 2022 the appellant applied to the Tribunal for review of the delegate's decision. The appellant was represented in the Tribunal, including by counsel. The Tribunal conducted a hearing on 11 and 12 August 2022 and affirmed the delegate's decision on 24 August 2022.

The decision of the Tribunal 11 The Minister's submissions on the appeal accurately summarised the Tribunal's decision in the following terms: As the appellant had not been sentenced to any terms of imprisonment of 12 months or more (or 2 or more terms of imprisonment where the total was 12 months or more), the first substantial question for the Tribunal was whether the appellant passed the character test identified in section 501(6)(d) of the Act. It is not in dispute that the Tribunal correctly identified the relevant principles with respect to section 501(6)(d) of the Act and applied them without error to the appellant (see [4] to [13] and [27] to [42]). The Tribunal next turned to consider the discretionary question as to whether, in circumstances where the appellant had failed the character test, he should be refused the [Visa] under section 501(1) of the Act. The Tribunal correctly identified that in this aspect of its decision, it was guided by the considerations set out in "Direction 90" (at [14] to [19], Direction at AB 93). In favour of the appellant and the grant of the [Visa], the Tribunal gave weight to; (a) the best interests of the appellant's two children ([58] to [61]); (b) the possible prolonged or indefinite detention of the appellant, giving this factor heavy weight ([69] to [70]); and (c) the appellant's ties to Australia, including his ex-wife and children and his other ties to the community in Australia ([74] to [76]). As the appellant could not be returned to Myanmar due to the operation of section 197C of the Act, the Tribunal gave no weight to Australia's international non-refoulement obligations and the extent of the impediments if the appellant was to be returned to Myanmar ([68] and [71] to [72]). Against the appellant, the Tribunal considered that primary considerations 1, 2 and 4 in Direction 90 outweighed the positive considerations ([78] to [81]). Accordingly, the Tribunal was satisfied that the correct decision was made by the delegate.

The Decision of the primary Judge 12 The appellant's amended application for judicial review before the primary judge contended that there was a significant reduction in the risk of re-offending because of the appellant's motivation to provide and re-establish a relationship with his children, and that this was not considered by the Tribunal. 13 As will become relevant, this was not an entirely accurate representation of the state of the evidence before the Tribunal. One of the appellant's experts, Dr Zimmerman, said as follows: [137] From the factors that are relevant [to risk], those that are most pertinent to [the applicant]'s case are his history of problems in relationships, his past unemployment, his inability to locate a specific service to assist with relevant counselling on release to the community and the possibility of struggling to manage stress associated with re-establishing contact with his children. The central risk factor is the problem he had when his wife formed a relationship with a boarder. The other factors flow directly from this apart from his difficulties finding work in Australia to date. Employment is important in relation to the important protective role it would play, as discussed further below. (Original emphasis.) 14 As the Minister submits on the appeal, and as the primary judge accepted (at [36]), Dr Zimmerman's evidence in fact suggests that the appellant's motivation to re-establish contact with his children (and the stress which that may engender) may provide a trigger for re-offending rather than constitute a protective factor against further re-offending. 15 Dr Zimmerman then opined, consistently with the appellant's submission in the Tribunal, that the appellant posed a "low risk of future violent offending". She identified specific factors that would further reduce that low risk. Consistently with paragraph [137] of her report (as set out above) the appellant's motivation to be with his children was not one of them (see [139]-[143] of Dr Zimmerman's report). It is apparent that the appellant's motivation to be with his children was only identified by Dr Zimmerman as being relevant to his likely compliance with any supervision or service provision (see [132] of Dr Zimmerman's report). 16 The Tribunal correctly identified the factors which the expert considered would reduce the risk of future offending and held that "there is a real albeit low risk of future family violence" (at [40] of the Tribunal's reasons for decision). 17 The primary judge noted at [35]-[36] the appellant's own evidence in relation to the likelihood of his reoffending and the expert's observations in relation to the appellant re-establishing contact with his children: 35 The evidence before the Tribunal included a statement of the applicant. In that statement, the applicant emphasised his hope of reconnecting with his children, and his awareness that he needed to prove he had changed, and needed to approach his former wife in a respectful and legal way. The applicant also said he wanted to obey the law and do things the right way and to seek legal advice about how he could contact his children again. 36 In my view, the applicant's statement before the Tribunal did raise his hopes in relation to his children as a factor that would mitigate, to some degree, his risk of re-offending. However, Dr Zimmerman's report identified the stress associated with re-establishing contact with his children as a risk factor. As counsel for the Minister submitted, the children were a "two-edged sword". 18 At [37]-[38] the primary judge then observed that while the Tribunal did not refer to the appellant's desire to reconnect with his children in relation to the risk of him re-offending, it was not incumbent on the Tribunal specifically to refer to and address that evidence: 37 This aspect of the applicant's evidence was not directly addressed by the Tribunal in its reasons. As the applicant pointed out in his submissions, the only point at which the Tribunal referred to the applicant's children was in assessing their best interests. While the Tribunal referred to the applicant's desire to re-connect with and provide support to his children, it did not at any point consider the extent to which the applicant's intentions and hopes in respect of his children - which the Tribunal accepted were genuine - affected the assessment of the risk of the applicant re-offending or engaging in other serious conduct. 38 Nevertheless, in my view, it was not incumbent on the Tribunal to specifically refer to and address the evidence and contentions each way, so far as they concerned the impact of the applicant's hopes in relation to his children. That is so because the Tribunal accepted the applicant's contention that he posed only a low risk of re-offending. There was nothing in the applicant's material before the Tribunal that suggested the applicant's hopes and intentions in relation to his children reduced the risk level below the "low risk" assessment for which the applicant himself contended. It would be otherwise if the Tribunal had rejected his submission that he posed a low risk of re-offending, but it did not. (Emphasis added.) 19 Then, at [39], the primary judge turned to the issue of materiality even if there had been an error on the part of the Tribunal in the following terms: 39 Further, and in any event, even if the Tribunal had erred by failing to address the impact of the applicant's hopes and intentions in relation to his children on the risk of re-offending, any such error was not, in my view, material. While the threshold of materiality has been described as "undemanding" (Nathanson v Minister for Home Affairs (2022) 96 ALJR 737; [2022] HCA 26 at [33] (Kiefel CJ, Keane and Gleeson JJ)), it is not meaningless. The Full Court (Markovic, Thomas and Button JJ) recently set out the authorities regarding materiality in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 64 (LPDT) at [73]ff. An error will only be material where there is a realistic possibility that, had the decision-maker not erred, the decision could have been different: Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at [45] (Bell, Gageler and Keane JJ), referred to in LPDT at [73]. (Emphasis added.) 20 The primary judge then observed at [41], consistently with what her Honour had said at [39], that even assuming in the applicant's favour that there had been an error in the Tribunal's approach, it was immaterial: 41 Assuming in the applicant's favour, for the moment, that the Tribunal did err in failing to address a sufficiently important representation that was made to it, the applicant's arguments might have had some merit if the Tribunal had concluded that the applicant posed a high, or even moderate, risk to the Australian community. However, the difficulty for the applicant, and one that is fatal to his application, is that the Tribunal proceeded on the basis that the risk of the applicant re-offending was "a real albeit low risk" (TR [40], see also TR [60]) and that "[t]he applicant committed offences that are so serious that even a low risk of re-offending is not acceptable" (TR [52], see also TR [65] and TR [80]-[81]). 21 The primary judge explained at [42]-[43] that: 42 As is apparent from a review of the Tribunal's reasons, the Tribunal was of the view that even a low risk of re-offending was not tolerable. The applicant has not contended that the matter he contends the Tribunal failed to address may have resulted in an assessment that he posed no, or an immaterial, risk of re-offending. He only contended that the Tribunal failed to consider his representation that the risk he posed was "lowered" by (or "lower because of") his desire to re-establish a relationship with, and support, his children. However, as the Tribunal already assessed the risk of further offending as "low", in my view the applicant has not established that, had the representation in question been addressed by the Tribunal, there is a realistic chance that he could have enjoyed a favourable outcome. As Mortimer J (as her Honour then was) and Bromwich J made clear in Chamoun v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 66; (2020) 276 FCR 75 at [66], realistic possibilities are to be distinguished from possibilities that are fanciful or improbable. 43 The failure of the applicant's case on materiality is put beyond any doubt by the Tribunal's expressly stated conclusion that, even if the applicant did not pose any measurable risk of causing physical harm to the Australian community, "the inherent nature of the family violence is so serious that it would outweigh the countervailing considerations": TR [80].

The Appellant's submissions 22 In the face of the reasoning of the primary judge so expressed, the appellant contends that her Honour's observations at [37] amounted to a finding that the Tribunal had made an error of law in failing to consider his representation as to the relevance of his children to the risk of him re-offending. 23 In support of this contention, the appellant emphasises the relevance of his children to this appeal. He notes that he gave evidence and made submissions to the Tribunal on the importance of his children as providing an incentive for him to not re-offend. The appellant submits that the Tribunal accepted that he was only a "low risk" of re-offending, but that it did so without considering this evidence. He maintains that this evidence could realistically have resulted in the Tribunal approaching the consideration of the risk of him re-offending in a different way, and more favourably to him, than it did. 24 Predicated on the basis that the primary judge had concluded that the Tribunal was in error by failing to consider the appellant's evidence about his children in relation to his risk of recidivism, the appellant criticises her Honour's conclusion that the error was not material on the basis that the Tribunal had accepted the appellant's contention that he only posed a low risk of re-offending (at [38]) and that there was nothing in the appellant's material before the Tribunal that suggested that his hopes and intentions in relation to his children reduced the risk below the "low risk" assessment for which he himself had contended. 25 Having regard to what the appellant contends are the accepted principles in relation to whether or not a particular matter should be regarded as material, he submits that the fact that the Tribunal accepted the contention that he "posed only a low risk of re-offending" is beside the point insofar as materiality is concerned. The appellant submits that the primary judge should not have made what was, in effect, a "prediction of irrelevance" as that expression is used by Allsop CJ in SZQYM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 169 ALD 579 at 613 [144]. The appellant contends that the Tribunal should not have been taken to have approached risk assessment on "such a coarse and clunky basis, but instead should have been credited the obvious sophistication of being able to approach risk in a fine-grained way, understanding that 'low' itself necessarily involves a range". 26 The appellant further submits that another reason why the primary judge erred in finding that the asserted error was immaterial is because the evidence about the children is directly relevant to the best interests of the children, and also relevant in the qualitative overall discretionary balancing exercise. 27 The appellant maintains that the effect of the approach adopted by the primary judge was, wrongly, to isolate his evidence about his children and treat it as if it could not realistically have influenced the Tribunal's consideration of any of the other matters. The appellant submits that to rely on the Tribunal's finding that he had "committed offences that are so serious that even a low risk of re-offending is not acceptable" to find that any error was not material, as he says the primary judge did, was wrongly to accept that the Tribunal could make findings "so emphatic that a reviewing court [should] say that no matter what the error, the decision-maker in question would not have changed her or his mind": DQM18 v Minister for Home Affairs (2020) 278 FCR 529 at 553-554 [115] (Bromberg and Mortimer JJ). The effect, it is said, was wrongly to take the Tribunal as if it could not have approached the matter with an open mind (citing SZQYM at [144] (Allsop CJ); Chamoun v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 276 FCR 75 at 94 [70] (Mortimer and Bromwich JJ)). 28 The appellant submits that the Tribunal had "a classic weighing exercise before it" and that the primary judge should not have engaged in an exercise of reconstruction "by reference to the subjective conclusions reached by the decision-maker herself or himself as part of the impugned decision", citing Chamoun at 93-94 [69] (Mortimer and Bromwich JJ) rather than DQM18 at 553 [115] (Bromberg and Mortimer JJ) for this proposition. This, the appellant contends, was an inadvertent but nevertheless impermissible slide into merits review. 29 Pursuant to leave granted to the parties on 23 April 2024 (after the hearing of the appeal) to file supplementary submissions on the question of materiality by reference to the decision of the High Court in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12, the appellant advanced further submissions on this subject. The substance of these submissions was that LPDT had confirmed the correctness of the propositions of law in relation to materiality which the appellant had already advanced. Insofar as the appellant's supplementary submissions advanced further argument on the question of whether the primary judge did decide that the Tribunal had erred, that is outside the scope of the grant of leave and it is unnecessary to have regard to this aspect of the appellant's supplementary submissions: see Bale v Mills (2011) 81 NSWLR 498 at 514 [57]-[59] (Allsop P, Giles JA and Tobias AJA); Frugtniet v Secretary, Department of Social Services (2021) 285 FCR 159 at 182-183 [85] (Wheelahan and Snaden JJ). The appellant's further submissions on the question of whether her Honour had decided that the Tribunal had erred do not, in any event, advance matters.

Disposition of the appeal 30 Contrary to the central predicate of the appellant's ground of appeal, we do not accept that the primary judge found that the Tribunal made an error of law in failing to consider the appellant's representation about the relevance of his children to the risk of him re-offending. We accept the Minister's submission that her Honour's reasons expressly found (at [38]) that there was no error by the Tribunal and only addressed the question of materiality in the alternative (at [39]). A plain reading of her Honour's reasons at [35]-[43] does not permit of any other conclusion. Her Honour observed (at [37]) that the appellant's evidence concerning his desire to reconnect with his children was not directly addressed by the Tribunal in its reasons, before noting (at [38]) that "[n]evertheless" it was not incumbent on the Tribunal to specifically refer to and address the evidence and contentions each way on this subject. Her Honour then explained why this was so. The matter is then put beyond any doubt by her Honour's observation (at [39]) that "[f]urther, and in any event, even if the Tribunal had erred … any such error was not, in my view, material". 31 It may also be observed that, as the Minister submitted and we accept, the appellant did not explain before the primary judge, nor explain on this appeal, how the Tribunal had erred in this regard or how the appellant's desire to have access to his children, had that been taken into account, could have reduced the already low risk to some different evaluative conclusion and even lower level of risk, particularly in the face of Dr Zimmerman's evidence as relevantly set out above. There was no requirement on the Tribunal, having regard to all the relevant evidence, to give particular consideration to the appellant's evidence about the relevance of his children to the risk of him re-offending: Minister for Home Affairs v Buadromo (2018) 267 FCR 320 at 331 [41], 332 [46] (Besanko, Barker and Bromwich JJ). 32 The appeal must therefore fail at this first hurdle. 33 However, even if our conclusion that the primary judge did not find any error on the part of the Tribunal were not to be correct, and her Honour is to be regarded as having found that the Tribunal erred, we accept the Minister's submission that her Honour undertook an orthodox counterfactual analysis (at [39]-[43]) in concluding that there was no realistic possibility of a different outcome: see MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506 at 523-524 [37]-[38] (Kiefel CJ, Gageler, Keane and Gleeson JJ). As the Minister submits, the appellant's argument to the contrary would give no content to the requirement of materiality in the present context: see generally LPDT at [7], [14]-[16] (Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ) and [38] (Beech-Jones J). The appellant's submissions on the question of materiality do not surmount the careful and considered reasoning of the primary judge as to why any error as alleged on the part of the Tribunal, had there been one, would not have been material. 34 In these circumstances the appeal will be dismissed with costs. I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Anderson, Rofe and McEvoy.