Consideration
26 The applicant contends, in each of his three grounds, that the Tribunal failed to take into account a claim or evidence and thereby failed to accord the applicant procedural fairness or failed to carry out the required statutory task. The applicant contends that the Tribunal failed to take into account the following claims or evidence (setting these out in the order addressed in oral submissions):
(a) in relation to the best interests of the applicant's minor children:
(i) a contention that the applicant would be better able to provide financial support for the children if he remained in Australia (and evidence relating to this contention); and
(ii) a contention that the children would not be able to have any contact with the applicant's extended family if the cancellation decision were not revoked (and evidence relating to this contention);
(b) in relation to the strength, nature and duration of the applicant's ties in Australia, the applicant's relationship with his aunt; and
(c) a contention that the applicant's departure from Australia would have a harsh impact on his mother.
27 The statutory scheme applicable to the decision of the Tribunal included, in particular, ss 501 and 501CA of the Migration Act. The applicant's visa was cancelled under s 501(3A) on the basis that he had a substantial criminal record. No issue arises in relation to the cancellation of the applicant's visa under that provision. Section 501CA deals with revocation of a decision to cancel a person's visa under s 501(3A). Section 501CA(3) provides that, as soon as practicable after making the cancellation decision, the Minister must: (a) give the person a written notice that sets out the cancellation decision and particulars of the "relevant information" (an expression defined in s 501CA(2)); and (b) invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the cancellation decision. Section 501CA(4) provides that the Minister may revoke the cancellation decision if: (a) the person makes representations in accordance with the invitation; and (b) the Minister is satisfied that the person passes the character test or "that there is another reason why the original decision should be revoked".
28 In the present case, a delegate of the Minister (rather than the Minister personally) made the decision under s 501CA(4) not to revoke the cancellation decision. Accordingly, it was open to the applicant to apply to the Tribunal for review of the non-revocation decision: see s 500(1)(ba). In conducting the review of the non-revocation decision, the Tribunal was required to comply with Direction 65: see s 499(2A).
29 The applicant relies on the principles discussed in Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 and NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 (NABE (No 2)). In NABE (No 2), the Full Court of this Court said, at [55], that where the Tribunal fails to make a finding on "a substantial, clearly articulated argument relying upon established facts" (quoting Dranichnikov at [24]), that failure can amount to a failure to accord procedural fairness and a constructive failure to exercise jurisdiction. The Full Court stated that the constructive failure to exercise jurisdiction may be seen as a failure to carry out the review required by the Act. (See also NABE (No 2) at [58], [61] and [63]). The principle discussed in Dranichnikov and NABE (No 2) has been applied in the context of s 501CA(4): see Viane v Minister for Immigration and Border Protection [2018] FCAFC 116 at [17], [25] and [30] per Rangiah J with whom Reeves J generally agreed (at [3]). I accept that the principle is applicable to the review conducted by the Tribunal in the present case. I did not understand counsel for the respondent to contest this.
30 In Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593, the Full Court stated at [47] that the inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. The Full Court also stated: "It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality".
31 Although the applicant's written submissions also include a contention that the Tribunal failed to give "proper, genuine and realistic consideration" to the applicant's submissions, it appears that this contention was largely based on the judgment at first instance in Buadromo v Minister for Immigration and Border Protection [2017] FCA 1592. However, that decision was reversed on appeal after the applicant's written submissions had been filed: Minister for Home Affairs v Buadromo [2018] FCAFC 151. At the hearing of the present application, counsel for the applicant relied principally on the judgment of Rangiah J in Viane at [16], [17] and [22]-[30]. In these paragraphs, Rangiah J referred to and applied the principle in Dranichnikov and NABE (No 2) referred to above. Accordingly, I take the applicant's case to be based on the principle discussed in Dranichnikov and NABE (No 2).
32 Having set out the applicable principles, I now turn to consider whether the Tribunal failed to make a finding on "a substantial, clearly articulated argument relying upon established facts" in respect of the matters raised by the applicant and set out at [26] above.
33 The first matter raised by the applicant is a contention, in connection with the best interests of the applicant's minor children, that the applicant would be better able to provide financial support for his children if he remained in Australia. It should be noted at the outset that there is no issue that the Tribunal did consider, at least to some extent, the best interests of the applicant's minor children: see [57]-[58] of the Tribunal's decision, set out above. As for the specific contention that the applicant would be better able to provide financial support for his children if he remained in Australia, this contention does not appear to have been made in the applicant's written representations to the delegate in support of revocation of the cancellation decision. (I was not taken, by counsel for the applicant, to any part of the written representations in support of a submission that the matter had been raised in those representations.)
34 The contention regarding financial support was not directly raised in the applicant's statement of facts, issues and contentions filed for the purposes of the Tribunal hearing. That document contained a contention, in the "summary" at the beginning, that it was in the best interests of the applicant's minor children that the applicant be allowed to stay here because "[i]f he has to live in Poland they will not have a father in their lives" (at [6]). The topic of the best interests of the applicant's two Australian children was addressed in a single paragraph ([39]) later in the document. That paragraph stated that the applicant wished to re-establish a parental role in the children's lives, but it was difficult to do so from prison. The paragraph continued: "Given that he is estranged from the children's mother, it is likely that if his cancellation is not revoked, he will never see the children again as their mother would not facilitate their travel to Poland to see him".
35 The contention that the applicant would be better able to provide financial support for the children if he remained in Australia was, however, raised in oral submissions during the Tribunal hearing: see transcript pages 7-8, 50 and 58. For example, in opening submissions, counsel for the applicant stated that the "second main issue" in relation to the best interests of the children was that if the applicant is "able to stay in Australia and do the job he has waiting for him … he will be able to financially support those children, and indeed, he wants to do that and he will be required to do that under child support law".
36 There was some evidence to support this contention. In particular, at [22] of the applicant's witness statement he stated: "I would like to earn money to help provide for my children financially." In his oral evidence at the Tribunal hearing, the applicant said that, although he had not seen the children since 2013, prior to that he used to see them every weekend, "stay at the house, pay my child support" (transcript, pages 19-20).
37 I accept that the applicant raised with the Tribunal a contention that he would be better able to provide financial support for the children if he remained in Australia, and provided some evidence in support of that contention. However, in my view the Tribunal did respond to this material, albeit generally. At [24] of the Tribunal's decision, as part of the summary of the applicant's contentions, the Tribunal noted that counsel for the applicant argued that he "has two young Australian citizen children who need his care and support" and that they "would be adversely affected if the decision was not revoked". The reference to "support" is capable of including financial support and I would read it this way in light of the submissions that had been made to the Tribunal. Further, the reference to the children being "adversely affected" is capable of including adverse effects due to the absence of financial support and, again, I would read it this way. In the section of the Tribunal's reasons dealing with the best interests of the children ([57]-[58] of the Tribunal decision, set out above) the Tribunal did not refer to potential financial support from their father. The Tribunal referred to the fact that the applicant had not seen the children for six years and that he did not know where his former partner or the children were. The Tribunal accepted that the applicant was genuine in his desire to make contact with his children "including if necessary by court orders". It concluded that, on balance, "this consideration weighs in favour of revoking the mandatory cancellation of the Applicant's visa, but given the lack of regular contact, not heavily so". In my view, the Tribunal's findings at [57]-[58] of its decision responded, albeit in general terms, to the contention regarding financial support for the children. The fact that the applicant had not had contact with his children for several years and did not know where they were was relevant in assessing the prospect of the children receiving financial support from their father. In accepting that the applicant was genuine in his desire to make contact with his children, the Tribunal may be taken (in light of the reference to "support" at [24]) to be referring also to a desire to provide support. In expressing the conclusion that "this consideration", that is, the best interests of the children, weighed in favour of revoking the cancellation, the Tribunal may be taken to be responding to the contention (at [24]) that the children needed the applicant's "support". Accordingly, this aspect of ground one is not made out.
38 Further, and in any event, it is difficult to see how any failure to respond to this contention and this evidence could realistically have made a difference to the outcome in this case, given the findings against the applicant in relation to protection of the Australian community (summarised at [19]-[20] above) and the fact that the Tribunal did conclude that the consideration concerning the best interests of the children weighed in favour of revoking the cancellation (albeit not heavily so).
39 The other aspect of ground one concerns a contention that the children would not be able to have any contact with the applicant's extended family (in particular, the applicant's parents, being the children's grandparents) if the cancellation decision were not revoked. Again, this contention was not directly raised in the applicant's statement of facts, issues and contentions. The point was mentioned in the applicant's mother's oral evidence (transcript, pages 23, 25). In closing submissions, counsel for the applicant referred to the applicant's mother's evidence "about her desire to have a role in the life of her Australian citizen grandchildren" and submitted that, if the applicant has to move back to Poland it was "hard to see how these two children's Australian citizen grandparents will have any role in their lives, nor this extended family" (transcript, page 54; see also, page 58). In the context of the material as a whole before the Tribunal, I do not consider these submissions and this evidence to constitute a "substantial, clearly articulated argument relying upon established facts". Accordingly, I do not consider that the Tribunal erred by not specifically addressing these submissions and this evidence.
40 The next matter raised by the applicant is that the Tribunal failed to take into account his claims regarding the strength, nature and duration of ties in Australia with respect to his aunt. The applicant's aunt gave evidence in her witness statement that the applicant was like a son to her (at [9]). However, it does not appear that any substantial submission was developed before the Tribunal based on the applicant's relationship with his aunt. The applicant's statement of facts, issues and contentions referred (at [36]) to the deaths of the applicant's two cousins (the sons of the aunt), but did not directly rely on the applicant's relationship with his aunt in the section dealing with "strength, nature and duration of ties to Australia". Accordingly, I do not consider the applicant to have presented a "substantial, clearly articulated argument relying on established facts" in respect of his relationship with his aunt.
41 The final matter raised by the applicant is that the Tribunal failed to take into account that his departure would have a harsh impact on his mother following the impending death of his seriously ill father. In the applicant's witness statement, at [28], he referred to his father's terminal illness and stated that he wanted "to be able to be there for my mother to support her after my dad passes away".
42 In the applicant's mother's oral evidence she said that her husband was sick and she required some assistance, which her son would be able to provide (transcript, page 23). The point does not otherwise appear to have featured in the applicant's material before the Tribunal. In the context of the material as a whole, I do not consider the applicant to have presented a "substantial, clearly articulated argument relying on established facts" in respect of the effect of the applicant's departure on his mother. Further, and in any event, the Tribunal noted in its conclusion (at [71]) that the applicant's removal "will have a greatly detrimental effect on his family, in particular his parents and fiancée" and may thus be taken to have responded to this matter.
43 I would add that the Tribunal's decision is clear and logically expressed. It responds with an appropriate level of detail to the contentions and evidence that were presented to it. This overall impression of the Tribunal's decision reinforces my view that the Tribunal did not fall into jurisdictional error as alleged by the applicant.
44 For these reasons, the application is to be dismissed. There is no apparent reason why costs should not follow the event. Accordingly, I will also make an order that the applicant pay the first respondent's costs of the proceeding, to be fixed by way of a lump sum.
I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moshinsky.