Applying the facts to Direction No 79
64 Once the question of "construction" is settled, the disposition of this review can dealt with shortly.
65 The Minister submits that the Applicant's ex-wife's evidence "did not rise any higher than expressing support for the applicant to remain in Australia so he could be more involved in his son's life". In so far as that is directed to the contention that his former wife's concerns had involved no claim on her own part that her interests would be affected and were focussed entirely on the impacts that the decision would have on her son and her ex-husband I reject it.
66 I am satisfied that to the extent the Applicant's ex-wife made representations which went to the impact of a decision that would revoke her former husband's visa she was relevantly his "victim" and her representations in those regards were required to be taken into account pursuant to cl 14.4.
67 The evidence-in-chief of PGDX's ex-wife in the Tribunal (in which she was questioned by the Senior Member) included the following (CB435, CB436):
Yes. And you now believe that the tribunal should give PGDX a second chance to stay in Australia, and you've written a letter saying that. So would you please tell me, why do you think that he should be given a chance to stay in Australia?---So basically (indistinct) like, he is not a criminal. He wasn't a bad boy. He was a good boy of his family. He looked after S PGDX when he - I used to work all the time, because I was sponsored by my company, like after I gave birth to S PGDX, like after six months, when S PGDX was six months, I (indistinct) continue work. And PGDX looked after him. So I (indistinct) choose my - he immediately (indistinct) life from everything. (Indistinct) every single day. Every day, (indistinct), and I had to say like, he will be coming soon. It's very hard for me, like, at the moment, if like, his mental - he is not, like, improving mentally. Like, he just keeps thinking this, why is my mum keeping me away from my dad? And it's impacting him very badly. And I just - like, I just want PGDX to be close to him for like - like, suppose if he can take him for weekend, or like fortnightly, that will help S PGDX a lot. Because S PGDX has been suffering a lot. It's just like - it's just mentally, he's just suffering. He's - when he doesn't get any answer from me, he just goes and asks my sister or my brother, everyone, just when is my dad coming? I want to go and see him. It's very bad. It's very sad for him. I know like, PGDX, he made a mistake under the condition of alcohol, and I know that after he ends his punishment, he will not do that thing again. So I just - I just request the Department to give him another chance. I know all the like, procedures and everything, but I just want you to give him a chance. So it will be good for my S PGDX, that's all. Like, for me, it's hard for me, too. Like, with (indistinct) my parents to come and look after him or taking him to school. That is very hard for me. I am (indistinct). But I have to - now (indistinct) and I have to (indistinct). And at the moment, (indistinct). It's getting very hard for me, because I - it's just like, I need his help with S PGDX to (indistinct)
68 The cross-examination of the Applicant's ex-wife as is relevant was as follows (CB437, CB438):
MS NG: Yes, so look I (indistinct). Ms K PGDX, can you hear me?---Yes, I can hear you.
Thanks for your time today. So the first question I have for you is just to ask whether you and Mr PGDX have discussed how you would be involved in your son's life if he was released from immigration detention?---Me and my sister have enough funds to - for basic (indistinct) and support him for the - wherever he want to (indistinct). And then he was, like, he had enough (indistinct) able to get good job easily and everything. He has enough contacts. He will be able to get job at (indistinct). We will (indistinct).
Yes, so my question was whether you had discussed with him the arrangements for him to be involved in S PGDX's life?---Sorry - I don't - sorry, I didn't understand the question, sorry?
SENIOR MEMBER: No, Ms K PGDX, what Ms Ng is asking you is: if PGDX is allowed to stay in Australia, have you discussed with him what role he will play in S PGDX's life?---No, I haven't discussed with him that. No, sir.
SENIOR MEMBER: Yes.
MS NG: And my other question for you, Ms K PGDX, is: would it be right to say that the impact on you of Mr PGDX not being allowed to remain in Australia is - well, it relates only to the care of your son?---Yes, I'm just worried about my son because he's struggling everyday.
Okay. Thank you, Ms K PGDX.
69 Had the evidence stopped at that point it arguably may have been plausible to regard Ms K PGDX's response to the last question asked of her as her explicitly disowning that there was any impact on her as a victim that she wanted the Tribunal to take into account.
70 However consistently with the generally exemplary attention the Tribunal gave to its task the Senior Member as if in reply asked further questions, Ms K PGDX's answers to which clarified the position.
SENIOR MEMBER: Okay, look, I just have one final question. How does S 35 PGDX get on with Keith?---They are really very good friends, but S PGDX gets jealous so much when Keith come here. Because he has - Keith has full (indistinct) custody of his son, so he comes one week and then - you know, it's just like - so S PGDX is very jealous, it's why I can't go and see my dad. And that's not how (indistinct). He - S PGDX is (indistinct) asks me so many questions. He says, mum, you are not a very good mum because you don't let me go see dad. I want to go with dad to shopping, I want to go in a park. Why you are not letting me? And he just gave it all - when he comes from the school, because he now is 7, and he gets a lot of things - he learns a lot of things about school. So he can literally come and say, mum, look, women have so many (indistinct) mother and father, but they allow them to go, and you're not letting me go. And I say S PGDX, your dad will be coming soon, you just have to wait. So it's just very hard for me, sir.
…
Yes, okay. All right, Ms K PGDX, is there anything that you would like to say to me? We've finished asking you any questions. Is there anything you would like to say to me that I ought to be thinking about while I make -when I make my decision?---Only thing, sir - there are PGDX did a mistake when he was drunk, and now after like this much time (indistinct) and giving him one chance, then it makes my life and my son's life a little bit easier, and he doesn't have to go through so much. And - yes, that's all I can say. It's just 20 my request as a mother, too. And PGDX won't be burden to the country, because he has enough skill - he can easily get the job, and - yes. That's all, sir.
(emphasis added)
71 In PGDX's closing submissions to the Tribunal, he asked the Tribunal to take into account that:
If I'm asked to return to India it will have an adverse effect not only on my son but even on my ex-wife and sister…
(emphasis added)
72 In its discussion of the potential application of cl 14.4 the Tribunal reasoned:
114. Strictly speaking there is only one "victim" in terms of the Applicant's behaviour, although other members of his family may be considered as having been impacted by his actions. His ex-wife has given clear testimony to the effect that she wants the visa cancellation revoked. However, her reasons for this all relate to what she perceives to be in the best interests of the minor child, Child S. Even so, in one of her statements she refers to the "agony and trauma I have had to pass through". In relation to the Applicant breaking and entering her premises prior to committing the sexual assault itself, she describes feelings of being "very scared and terrified" because she "couldn't recognise him". Again, this is indicative that she did not consent to either the Applicant coming to her home that night or her agreeing to have intercourse with him.
115. Despite this, the Applicant's ex-wife has made consistent representations to support her ex-husband's application to remain in Australia. She has even sought to appropriate some of the blame for their marriage problems to herself, and has indicated a desire for the Applicant to remain in Australia in order to help support their son.
116. The Applicant has mentioned on several occasions that his conviction led to his mother suffering a heart attack and his sister being divorced by her husband because of the "shame" which his actions have brought upon the family.
117. There is nothing, however, which would allow any weight to be assigned to this consideration, rendering it effectively neutral in the present calculus of considerations.
73 I am satisfied that once regard is had to the evidence of Ms K PGDX I have set out above the reasoning of the Tribunal regrettably but self-evidently manifests jurisdictional error. Contrary to the conclusion stated by the Tribunal at [117] there was evidence, which, had it been taken into account pursuant to cl 14.4 of Direction No 79, would have required the Tribunal to give attention to the impact of the revocation of the cancellation of PGDX's visa on his victim: Ms K PGDX, his ex-wife.
74 There can be no doubt that the Tribunal recognised that Ms K PGDX was PGDX's victim. The Tribunal acknowledged that to be so when it observed at [114] of its reasons that "strictly speaking there had been only one 'victim' in terms of the Applicant's behaviour". The Tribunal's observation in that regard was wholly correct. Moreover it is consistent with why I am satisfied the reasoning of the Full Court in DKN20 must be distinguished.
75 I return to the Tribunal's reasoning with respect to what K PGDX had informed the Tribunal about the impact on her of a decision to revoke the cancellation of PGDX's visa.
76 Ms K PGDX told the Tribunal she wanted the cancellation of PDGX's visa to be revoked. Her evidence in chief was that she wanted him to stay in Australia because, inter-alia, she needed his help with her son.
77 In cross-examination Ms K PGDX gave an answer to one question (see P 80 lines 28-31) which, in isolation, might be understood as her having repudiated having any self-interest in the outcome. However her responses to further questions asked of her by the Tribunal made clear that was not the case. She told the Tribunal that her son was blaming her for his father's absence. She informed the Tribunal that she had been promising her son that his dad would be coming soon - so it was very hard for her. Her position was summarised when Ms K PGDX was asked by the Tribunal if there was anything she wanted to add to her evidence and she had responded "Only thing, sir - ….PGDX did a mistake when he was drunk, and now after like this much time (indistinct) and giving him one chance, then it makes my life… a little bit easier…"
78 In my view there is nothing in the Tribunal's reasons at [114]-[115] to suggest that the Tribunal correctly understood the import of that evidence or gave it lawful consideration. It is not to the point that the Tribunal noted that Ms K PGDX had been disturbed by the seriousness of the sexual assault she had suffered and that her account "was indicative" that she had not consented to either PGDX coming to her home or to his having intercourse with her. That was no more than PGDX had admitted to at his trial.
79 Such circumstances were open to have been taken into account by the Tribunal when assessing the weight it should give to the considerations provided for in cl 11 of Direction 79 but the objective seriousness of PGDX's offending was of no relevance, other than as background, to the Tribunal's duty to give consideration to the impact on Ms K PGDX of a decision to revoke PGDX's visa cancellation and to evaluate what weight should be given to it. That was its duty as provided for in cl 14.4 of Direction No 79.
80 It was an error of law for the Tribunal to have treated those background factors as materially decisive to the quite different question it was required to determine.
81 To the extent it was open for the seriousness of PGDX's previous offending to be taken into account as background, that background was such as might be anticipated usually would be a reason for Ms K PGDX to have welcomed rather than to have opposed the prospect PGDX's visa being revoked. The fact that notwithstanding, and to the contrary, Ms K PGDX had told the Tribunal that the impact of a decision to permit PGDX to stay in Australia would make her life "a little bit easier" might be thought to indicate how important the outcome was to her. But that was for the Tribunal.
82 However, there is nothing in the Tribunal's reasoning to suggest it understood that Ms K PGDK's status as a victim had required it to give specific consideration to the impact on her of a decision to revoke PGDK's visa cancellation 'where that information is available'.
83 That information was available. It was not open to be ignored.
84 Contrary to the submissions the Minister advances, I am satisfied that information was effectively ignored by the Tribunal. In particular I am satisfied that the Tribunal was mistaken in its conclusion that all of what Ms K PGDX had stated in her testimony related to "what she perceive[d] to be in the best interests of her minor son Child S."
85 As a mother it would have been surprising if the gravest of the concerns of Ms K PGDX had not related to her child's wellbeing. But her evidence was not confined to that. She advanced, albeit modestly, her own claims.
86 She informed the Tribunal that the impact of permitting PGDX to remain in Australia would be of benefit to her. It would make her life a little bit easier.
87 Such humble evidence had to be taken into account pursuant to cl 14.4 of Direction No 79 and its import weighed in the balance of the matters required to be addressed by the Tribunal pursuant to Direction No 79.
88 To revert to Rangiah J's reasoning in Viane cited above at [27] the effect of Ms K PGDX's evidence was that as PGDX's ex-wife she had suffered as his victim and now faced being adversely impacted again if the Tribunal made a non-revocation decision.
89 Ms K PGDX's status as a victim entitled her to limited agency such that that information had to be taken into account by the Tribunal as a mandatory relevant consideration. It was not. She was denied that agency.
90 The Applicant put to the Tribunal in his closing submissions that his return to India also would have an adverse effect on Ms K PGDX. I reject that that he did not sufficiently identify the relevant issue. In a circumstance in which the sentencing judge had recorded that in the judge's view not only that "his record is one which….does not disentitle him to leniency" but also "he has good prospects of rehabilitation" it is not advanced, and it would be implausible to advance, that had the factor provided for in cl 14.4 of Direction No 79 been given lawful regard, a different outcome in his review could not reasonably have been reached. I am satisfied that the error was material.
91 I need not decide if generic matters of the kind identified by Perram J in Bale might in a different case be sufficient to engage the operation of cl 14.4 of Direction No 79. That is because Ms K PGDX's several modest, mundane but direct claims regarding the impact on her of a decision to revoke the cancellation of her former husband's visa extend beyond the generic. As she had explained to the Tribunal when she was asked if she had anything she wanted to add she informed the Tribunal that she wanted it to take into account that PGDX being given his visa back and being permitted to stay in Australia would make her life "a little bit easier."
92 Remittal of this matter will not compel Ms K PGDX's interests to prevail. Her expressed views did not prevail when, after PGDX's offending she had requested the prosecution not to proceed with putting her former husband on trial (see CB 436). They may again not prevail if this matter is remitted for review according to law.
93 However Ms K PGDX is entitled to the limited agency provided for victims in cl 14.4 of Direction No 79. Her status as PGDX's victim required the impacts she identified to the Tribunal to be addressed by it as a mandatory relevant consideration. To the present they have not been. It will be for the Tribunal, upon remittal, to give such weight to those claimed impacts as it sees fit.
94 I uphold the appeal. I will make orders accordingly.
95 The parties are agreed that costs should follow the event. I will order the Minister to pay the Applicant's costs as agreed or in default of agreement as may be taxed.
I certify that the preceding ninety-five (95) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Kerr.