Oluwafemi v Minister for Home Affairs

Background 6 The Tribunal set out the history of the matter in its reasons from T[9] to T[18]. The applicant was, at the time of the hearing before the Tribunal, a 42-year-old citizen of Nigeria who had first arrived in Australia on 11 July 2012, aged 37. He was the holder of a Student (Temporary) (Class TU) visa. He departed Australia on three occasions for up to three months between 2012 and 2016. 7 On 19 August 2014, the applicant lodged a combined application for a Partner (Temporary) (Class UK) visa and Partner (Residence) (Class BS) visa on the basis of his marriage to an Australian citizen. He was granted a Partner (Temporary) visa on 1 December 2015. At some stage in December 2015, the applicant's wife withdrew her sponsorship from the visa application. 8 Material before the Tribunal included a National Police Certificate dated 26 February 2016 and what was described in submissions as a conviction and judgment relating to the conviction of the applicant on 20 January 2015 for Assault Occasioning Actual Bodily Harm (Domestic Violence). The National Police Certificate dated 26 February 2016 revealed the following: • On 16 January 2014, he was found guilty of Drive with low range prescribed concentration of alcohol in the Fairfield Local Court, for which he was required to enter into an 18 month good behaviour bond; • On 22 October 2014, he was convicted of Drive with low range prescribed concentration of alcohol in the Liverpool Local Court, for which he was fined $400 and his licence disqualified for 3 months; • On 22 October 2014, he was convicted of Drive with middle range prescribed concentration of alcohol in the Liverpool Local Court, for which he was fined $600 and his licence disqualified for 12 months; • On 20 January 2015, the applicant was convicted of Assault Occasioning Actual Bodily Harm (Domestic Violence) in the Liverpool Local Court, and, on appeal, he was sentenced to 9 months' imprisonment, suspended upon entering a 9-month good behaviour bond. 9 The Tribunal also referred to New South Wales Police records which noted unresolved charges which the Tribunal stated were of "no probative value" and, consequently, the Tribunal did not take them into account.

The Tribunal Decision 10 As noted above, the Tribunal identified the two issues before it as: (1) whether the applicant met the character test; and (2) whether the Tribunal ought to exercise the discretion available under s 501(1) of the Act to refuse to grant the applicant a visa if he did fail to meet the character test. 11 At T[22], the Tribunal noted that its decision had to be made in compliance with any written directions given by the Minister under s 499 of the Act - see: s 499(2A). The Tribunal referred to section 2, paragraph 6 of Annex A to the Direction, noting it provided guidance on the application of the character test and assessment of risk in relation to future conduct under s 501(6)(d). It observed that subparagraph 6(2) provided that the ground is enlivened if there is evidence suggesting there is "more than a minimal or remote chance that the person, if allowed to enter or remain in Australia, would engage in conduct specified in section 501(6)(d) of the Act". 12 At T[26], the Tribunal noted that the decision-maker must take into account the primary considerations in Part B of the Direction in deciding whether to refuse the visa - see paragraph 11(1). It identified, correctly, the primary considerations as: (a) Protection of the Australian community from criminal or other serious conduct; (b) The best interests of minor children in Australia; and (c) Expectations of the Australian community. 13 The Tribunal noted at T[27] that it must also take into account other considerations insofar as they are relevant - see paragraph 12(1), noting that the reference to "cancel" in that paragraph must be read as "refuse". The Tribunal correctly identified those considerations as including, but not being limited to: (a) International non-refoulement obligations; (b) Impact on family members; (c) Impacts on victims; and (d) Impact on Australian business interests. 14 The Tribunal noted the applicant's submission that he was of good character and that his previous convictions and other behaviour should not count against that good character. The Tribunal noted that the applicant and his wife gave evidence in support of the applicant's good character. At T[28], the Tribunal noted that evidence had been given demonstrating the fact that the parties had been to relationship counselling. The Tribunal also noted that a number of people had given references attesting to the applicant's good character. The Tribunal was "satisfied that these referees who have spoken on the applicant's behalf are well-meaning". However, the Tribunal gave more weight to what it described as "objective evidence of the applicant's character". 15 The Tribunal evidently gave some weight to the evidence that had been given in favour of the applicant, noting that it did not dismiss the evidence to which it had referred, including the character references given by the applicant's various referees. 16 The Tribunal outlined the respondent's submissions at T[29] to T[37]. It noted at T[38] that it accepted the applicant's claims that he had attended counselling at Anglicare and CatholicCare. 17 The Tribunal addressed the evidence which had been given by the applicant and his wife from T[41] to T[51]. This evidence included evidence in relation to the offence which had been committed on 18 November 2014 in respect of which the applicant had been convicted on 20 January 2015 in the Liverpool Local Court. On that occasion, the applicant was convicted of Assault Occasioning Actual Bodily Harm (Domestic Violence) and was sentenced to nine months' imprisonment suspended upon entering a nine-month good behaviour bond. 18 At T[47], the Tribunal dealt with evidence of a second incident to which police had been called on 9 June 2017. As to this, the Tribunal said: The wife also gave evidence of a second incident to which the police were called on 9 June 2017. Originally she had complained that the applicant assaulted her by grabbing her around the throat and poking her eye. She later retracted her statement and the matter did not proceed any further. An Apprehended Violence Order however was issued against the applicant. Sensationally, in evidence before this Tribunal, the wife said that she had in fact lied to the police and that she had been assaulted not by the applicant but by a lodger in their house earlier in the day. The explanation given by the wife and the applicant, whose evidence by the time of the Tribunal hearing neatly coincided, was risible and unbelievable. I do not accept either the applicant or his wife about the circumstances of the incident as described in evidence before the Tribunal. I am satisfied that the truth of the matter was revealed to the police in a complaint by the wife about her husband at the time the police were called. While I cannot make any finding as to the reasons why the wife lied about the incident [to the Tribunal], I am nonetheless satisfied that the applicant did assault his wife in the way she originally described to the police. 19 The Tribunal continued (at T[48] to T[51]): 48. The drink driving offences disclosed not only show a disregard for the safety of Australian citizens and others who are road users and pedestrians, but importantly display a complete disregard for important laws meant to protect citizens. The fact that three offences were committed, each one escalating in seriousness, displays a degree of contempt for the operation of the law and is portentous of increasing risk of the commission of other offences not limited merely to driving offices [sic]. 49. I accept that the applicant committed the serious assault for which he was sentenced to 9 months imprisonment, wholly suspended. I have further found to a high degree of satisfaction that the applicant committed a further assault on his wife on 9 June 2017 by grabbing her around the throat and poking her in the eye. He has contemptuously lied about this in evidence. He has lied, I find, about the circumstances surrounding the incident for which he was convicted on 18 November 2014. These lies were told on oath. It leads me to form a view that the applicant is disdainful of the legal processes in this country which processes are fundamental to the regulation of our society. This suggests he and the Australian community are at risk of the applicant committing further and serious offences. 50. In this case, the applicant's general credit worthiness is intimately connected to the assertion that he is of good character and passes the character test. 51. I am satisfied that the applicant has deliberately lied before this Tribunal in affect [sic] to diminish his criminal conduct to his wife, and to attempt to subvert these proceedings and provide false evidence in these proceedings, and to attempt to ensure that he is given a Visa. I will have more to say about the ramifications of these lies below. 20 At T[52], the Tribunal stated that the evidence which the applicant had given, which the Tribunal had found to be false, went directly to his assertion of good character. In addition, the Tribunal found at T[53]: Furthermore the features of the evidence which I have accepted, that is the unprovoked assault on his wife on 18 November 2014 and the assault on his wife on 9 June 2017; evidence of police attending the couples' [sic] home in relation to a domestic incident on 4 January 2014, not only disclose a fractious domestic relationship but one that to my mind is proven to a high standard to be seriously domestically violent. 21 The Tribunal concluded at T[55] that it was satisfied that the applicant failed the character test both pursuant to s 501(6)(c) and, independently, sub-s (6)(d)(i). 22 The Tribunal then turned to the discretionary aspects of its decision and dealt with various considerations, including the protection of the Australian community, risk to the Australian community, the expectations of the Australian community, the best interests of minor children, non-refoulement obligations and impact on family members, victims and Australian business interests. 23 Ultimately, after weighing its findings in respect of these various matters, the Tribunal concluded that the delegate's decision to refuse the visa should be affirmed. 24 When dealing with the best interests of minor children, the Tribunal reasoned at T[65]: The applicant has a four year old son in Australia, for whom he has been the sole carer while his wife attended TAFE. The relationship between parent and child is of deep significance and consequence, especially to the child. This consideration weighs in favour of the applicant, and should be given due weight. 25 When dealing with the expectations of the Australian community, the Tribunal noted at T[60] that the Australian community had come to regard domestic violence seriously. When dealing with the risk to the Australian community, the Tribunal noted that it had to have regard to paragraph 11.1.2 of the Direction, which provided that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. As mentioned, paragraph 11.1.2(1) states: In considering whether the non-citizen represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct, and the harm that would be caused if it were to be repeated, is so serious that any likelihood that it may be repeated may be unacceptable. 26 At T[61], the Tribunal stated: Domestic violence and the harm that would be caused if it were to be repeated is sufficiently serious that any likelihood that it may be repeated is unacceptable.

The appeal 27 At the hearing of the appeal, leave was granted to rely upon an amended originating application for review of a migration decision dated 31 August 2018. Whilst that document identified three grounds of appeal, the solicitor appearing for the applicant indicated that ground 1 was no longer pressed. 28 There was substantial overlap between grounds 2 and 3 and it is accordingly convenient to deal with them together. 29 Ground 2 of the amended application was: The Tribunal failed to give any, or any real consideration, to an integer of the Applicant's claim. PARTICULARS a. The Tribunal failed to treat the best interest of the Applicant's child as a primary consideration by failing to make a finding of what the best interests of the child were. b. The Tribunal failed to give any or an appropriate weight to this primary consideration. 30 Ground 2 was to the effect that the Tribunal failed to treat the best interests of the applicant's child as a primary consideration by failing to make a finding of what the best interests of the child were, and that it failed to give any or any appropriate weight to this primary consideration. 31 In support of ground 2, the applicant submitted: The Tribunal fell into error in not finding that positive steps taken by the applicant in reforming his behaviour and the best interests of the minor child of the applicant clearly weighed in favour of the applicant. 32 The applicant further submitted: The Tribunal's assessment and balancing of the primary and other considerations was flawed and unreasonable. The assessment and balancing exercise was undertaken without considering the weight of the best interests of the applicant's child, the remedial and reformative steps taken by the applicant to change his life and behaviour, ignoring that the wife and the minor child of the applicant were also part of the Australian community. 33 Ground 3 was in the following form: The Tribunal's assessment and balancing of the primary and other considerations was flawed and unreasonable. PARTICULARS a. The tribunal failed to consider the weight of the best interest of the applicant's child towards the overall assessment of the issue before it. b. The Tribunal ignored the remedial and reformative steps taken by the applicant to change his life and behaviour. c. The Tribunal while assessing the expectations of Australian Community completely ignored that the wife and the minor child of the applicant were also part of the Australian community and as such did not take their expectations into account. d. The Tribunal erred in not assessing the expectation of the Australian community with respect to the family life. e. The Tribunal erred in not assessing the expectation of the Australian community with respect to the best interests of the minor child of the applicant. 34 The substance of ground 3, as it emerged in oral submissions, was to the effect that the assessment and balancing of the primary and other considerations was unreasonable because the Tribunal failed to consider the weight to be given to the best interests of the applicant's child in the overall assessment of the applicant's case, and that the Tribunal ignored the remedial and reformative steps taken by the applicant to change his life and behaviour. 35 A feature of the applicant's submissions with respect to both grounds 2 and 3 was the contention that the Tribunal was required to determine what the content of the primary considerations was, and to do so by reference to the particular (remedial and reformative) steps which had been taken by the applicant. For example, paragraph 11.3(1) of the Direction provided: The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to refuse the visa application of such a person. Visa refusal may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted a visa. Decision-makers should have due regard to the Government's views in this respect. 36 The applicant submitted: It is not denied that a visa applicant committing the acts of driving under influence of alcohol and domestic violence is expected to have his or her visa refused. However, at the same time it is also expected that any such person who takes steps to redress and reform his or her behaviour is expected to be given a second chance. The assessment of the Tribunal in this respect was flawed as it failed to properly take into consideration the relevant facts in the form of the applicant successfully completing the Traffic offenders' intervention programme and relationship counselling. 37 In my view, this submission is inconsistent with the general scheme of the Direction and the way the primary considerations operate. These parts of the Direction are statements as to what the expectations of the Australian community are for the purposes of determining whether the visa should be refused. It is not for the Tribunal to determine the expectations of the Australian community by reference to the applicant's circumstances or evidence as to what the expectations of the Australian community are. The Direction requires a decision-maker to assess each of the primary considerations as they apply to the circumstances of the applicant's case, and to weigh the various considerations against each other in order to reach a conclusion as to how the discretion should be exercised. 38 Certain primary considerations will, by their nature, weigh in favour of refusal in most cases, and may or may not be outweighed by one or more countervailing primary considerations. This was relevantly explained by the Full Court in Nigam v Minister for Immigration and Border Protection (2017) 254 FCR 295 at [44]. It was also described in YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 by Mortimer J in a different context (namely, with respect to paragraph 13.3 of the Direction) in the following way (at [76]-[77]): 76. In substance this consideration is adverse to any applicant. As the Minister submits, it is inextricably linked to the other primary consideration of protection of the Australian community. In particular, the last two sentences of para 13.3 of the Direction suggest the "expectations" about which it speaks are expectations adverse to the position of any applicant who has failed the character test and been convicted of serious crimes. In this primary consideration as expressed (and despite the references earlier in the Direction to "tolerance") the Australian community's "expectations" are defined only in one particular way: namely, that the Australian community "expects" non-revocation where a person has been convicted of serious crimes of a certain nature. That is, this is not a consideration dealing with any objective, or ascertainable expectations of the Australian community. It is a kind of deeming provision by the Minister about how he or she, and the executive government of which he or she is member, wish to articulate community expectations, whether or not there is any objective basis for that belief. That is the structure of this part of the Direction. 77. I do not consider that even if the applicant is correct to submit that the Tribunal did not undertake the task required of it by the Direction in relation to this consideration, he was deprived of a different outcome because of that failure. It was inevitable that this consideration would weigh against revocation: that is what it is intended to do (see Uelese [2016] FCA 348; 248 FCR 296 at [64]-[66]). 39 I understood the applicant to argue that the best interests of minor children were not taken into consideration either at all or sufficiently. The applicant submitted that the consideration was "totally ignored". The best interests of the minor child were certainly not totally ignored. It is clear from T[65] that the Tribunal found the best interests of the applicant's then-four-year-old son lay in granting the applicant a visa. It is also clear that the Tribunal had regard to the Direction, having referred to it in several parts of its decision and having expressly recognised that it was bound by its terms. 40 Where a decision-maker is required by statute to consider a matter, the decision-maker is to engage in an active intellectual process directed to the matter: Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352 at [45]. That principle, in my view, is applicable to the Direction, which sets out considerations the Tribunal had to consider by force of s 499(2A) of the Act. The principle does not, however, require a decision-maker to refer in its reasons to every piece of evidence or every contention made. In addition, the principle does not permit the decision-maker's reasons to be scrutinised minutely with an eye keenly attuned to the perception of error - see: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [30]; Carrascalao at [45]. A conclusion that the decision-maker has not engaged in the intellectual process contemplated "will not lightly be made and must be supported by clear evidence, bearing in mind that the judicial review applicants carry the onus of proof": Carrascalao at [48]. 41 In my view, reading the decision of the Tribunal consistently with the principles in Wu Shan Liang, it is clear that the Tribunal directed its mind to the best interests of the minor child as required by paragraph 11.2 of the Direction and found that the best interests of the child lay in favour of granting the applicant the visa. It was not necessary for the Tribunal to refer specifically in its reasons to each of the factors mentioned in paragraph 11.2(4) of the Direction as ones which must be considered. The fact that the Tribunal did not refer to them specifically in this case does not establish that it failed to consider those matters. It did not err in failing to make an express finding as to what the best interests of the minor child were. The Tribunal considered that the "relationship between parent and child is of deep significance and consequence, especially to the child": at T[65]. 42 It is plain that the Tribunal considered the best interests of the child lay in the applicant not being refused a visa. It is also tolerably clear that the Tribunal treated the consideration as a primary consideration. The difficulty for the applicant is that the Tribunal found the best interests of the child were outweighed by other primary considerations (in particular, the risk to the Australian community). 43 It is not the role of this Court to enter into a consideration of the weight it would have given to the various primary considerations. The role of this Court is confined to judicial review; that is, the identification of sufficient error for it to be concluded that the Tribunal's decision was one which was not authorised by the terms of the legislation. In my view, the Tribunal approached its task in the correct way, finding that the best interests of the child lay with granting the applicant a visa. Reading the reasons as a whole, the applicant has not demonstrated jurisdictional error in the Tribunal's ultimate conclusion that the best interests of the applicant's son were outweighed by the countervailing primary considerations and other considerations which the Tribunal considered ultimately favoured refusal. 44 The applicant also submitted that the Tribunal ignored the remedial and reformative steps taken by the applicant to change his life and behaviour when making an assessment of the primary considerations. However, the Tribunal expressly referred to the relationship counselling and evidence in relation to the applicant's good character at T[28], and at T[38] accepted that the applicant had attended counselling. The reasons of the Tribunal are to be read as a whole. The fact that it did not refer to those steps when it came to consider the expectations or protection of the Australian community is not indicative of error. As Gleeson CJ said in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165 at [14]: Decision-makers commonly express their reasons sequentially; but that does not mean that they decide each factual issue in isolation from the others. Ordinarily they review the whole of the evidence, and consider all issues of fact, before they write anything. Expression of conclusions in a certain sequence does not indicate a failure to consider the evidence as a whole. I do not think that the Tribunal member intended to convey that she made up her mind about the evidence of the applicant/appellant before taking account of the evidence of the witness who was said to corroborate him. 45 It is clear that the Tribunal considered the applicant's evidence and arguments in relation to his having had relationship counselling and, indeed, in respect of the applicant's evidence in relation to good character. Nevertheless, the Tribunal concluded that the applicant presented an ongoing risk of committing further and serious offences largely on the basis of its findings in relation to domestic violence, the increasing severity of his drink driving offences, and its conclusion that the applicant had lied under oath (see paragraph [19] above). 46 Particular (c) of ground 3 asserts error on the part of the Tribunal in failing to take into account the fact that the applicant's wife and minor child were also a part of the Australian community, and in failing to take their expectations into account as required. As noted earlier, this particular reveals a misunderstanding as to how the primary considerations operate in the sense that the expectations of the applicant's wife and his minor child are not imported into the consideration of the expectations of the Australian community under paragraphs 11(1)(c) and 11.3(1) of the Direction - see paragraphs [35] to [38] above. 47 Paragraph 11.3(1) of the Direction states, in effect, the Minister's policy as to the expectation of the Australian community - see: YNQY at [76] per Mortimer J (extracted at paragraph [38] above). It is not the role of the Tribunal to make its own assessment of the expectations of the Australian community by taking into account the applicant's wife and minor child as parts of that community. That is not to say that the Tribunal was to ignore as irrelevant the interests of the applicant's wife and minor child. However, the Tribunal clearly did not ignore their interests in reaching its conclusion. 48 For equivalent reasons, particulars (d) and (e) of ground 3 are also not made out. 49 As Allsop CJ observed in Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 at [11], to establish jurisdictional error on the basis of legal unreasonableness: [T]he decision is to be evaluated, and a conclusion reached as to whether it has the character of being unreasonable, in sufficiently lacking rational foundation, or an evident or intelligible justification, or in being plainly unjust, arbitrary, capricious, or lacking common-sense having regard to the terms, scope and purpose of the statutory source of the power, such that it cannot be said to be within the range of possible lawful outcomes as an exercise of that power. 50 Ground 3 is not made out as the decision cannot be said to be unreasonable. I have set out earlier the reasons why, in my view, ground 2 is not made out.

Conclusion 51 For those reasons, the application is dismissed with costs to be agreed or assessed. I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Thawley.