PGDX v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

The Tribunal's decision 9 This is the second judicial review application made by the Applicant to this Court concerning a decision of the Tribunal affirming a decision by the delegate not to revoke the cancellation of his visa. An earlier decision of the Tribunal made on 26 February 2021 was quashed by an order of this Court made on 18 October 2021 and remitted to the Tribunal for reconsideration. 10 On remitter, the Tribunal considered the question of whether there was "another reason" to revoke the cancellation of the Applicant's visa with reference to Direction 90, being a direction by the Minister under s 499 to guide decision-makers making decisions under s 501 or 501CA. The Direction relevantly identifies a number of "Primary" considerations and "Other" considerations that the Tribunal was required to take account of in arriving at its decision. 11 One of the primary considerations is "the best interests of minor children in Australia". Clause 8.3(1) of Direction 90 provides that decision-makers must make a determination about whether non-revocation is, or is not, in the best interests of a child affected by the decision. The consideration only applies if the child is, or would be, under 18 years of age at the time when a decision not to revoke the mandatory cancellation of the visa is expected to be made (cl 8.3(2)). 12 The Tribunal identified the Applicant's eight year old biological son as a minor child in Australia whose interests could be affected if the visa cancellation is not revoked. The Tribunal observed that the Applicant had at times been the child's primary carer early on but has not lived with the child since early 2017. The Tribunal found that the child has lived with Ms K and her de facto partner during the past four years and that the child is happy, healthy and settled and now calls Ms K's de facto partner "Dad". 13 The Tribunal concluded as follows in relation to the primary consideration of best interests of minor children in Australia: [145] There have been long periods of absence and limited, meaningful contact between the Applicant and his child since February 2017. This includes periods when an AVO was in place, after Ms K moved out in 2017, and after the Applicant's most serious offending against her in late 2017. Dr Kwok [psychologist] noted the Applicant told her he has not seen his child since 2020. [146] The Applicant was violent and aggressive against Ms K and her family between 2015 and 2017 while the child was present. This includes the child being in the same bed during the Applicant's aggravated sexual assault against Ms K. [147] Although it is accepted there were periods when the Applicant played a primary carer role due to Ms K's work and other commitments, it is Ms K who has performed this role for most of the child's life, including during the last four years with the help of her de facto partner and relatives. There is no evidence this care is deficient, or that Ms K or the child are in any way reliant on the Applicant. [148] The Tribunal accepts the Applicant has a close and loving relationship with his child and has done his best to maintain that relationship within the constraints of a lengthy period of imprisonment, followed by immigration detention. There is a dearth of direct evidence from the child, who at eight years of age, is unlikely to be sufficiently mature to express the nature and extent of his relationship with the Applicant. [149] The Tribunal accepts Ms K's evidence that if the Applicant remains in Australia, she is willing to cooperatively facilitate contact with their child. This rests, however, on an agreement yet to be discussed, much less agreed. The Tribunal has difficulty accepting the evidence of Ms K's sister about driving the child to see the Applicant, which would involve a 12- or 14- hour return trip, without inclusion of any visit time. Even if the Applicant occasionally met her halfway, which would need to conform with his parole arrangements, the practicalities of this option remain uncertain because of the child's car sickness. Moreover, Ms K, who is the child's primary carer, stated any contact under these conditions would be infrequent at best because of the adverse impact on the child's education and other activities. [150] The Tribunal accepts Ms K will not return to India with the child to facilitate visits. This is likely to limit the Applicant's contact to telephone and video calls. Given the decade before the child turns 18, a non-revocation decision will therefore likely result in the Applicant and his child not having any physical contact at all until the child reaches adulthood and makes their own decisions about contact. That said, if the Applicant lived six or seven-hours' driving time away as he intends, his physical contact with the child would inevitably be infrequent and the contact would be largely reliant on telephone, videocalls and letters, as has been the case for the last four years. [151] Based on Dr Kwok's evidence, there is a clear prospect for further conflict and enmity between the Applicant and Ms K about access and custodial arrangements, which may adversely affect the child. This is particularly so given the Applicant previously breached an AVO because of an 'overwhelming desire to see his son.' The Tribunal accepts on balance, however, but with some trepidation, that the Applicant is likely to play a positive parental role in the child's life if released into the community. That finding is conditioned by uncertain factors like recidivism risk, whether the Applicant can set aside his pejorative perceptions about Ms K, comply with supervisory conditions, address his unmet rehabilitation needs, and cooperative agreement about visitation arrangements can be reached. [152] Given the totality of the circumstances, revocation is in the best interest of the child, but this primary consideration carries moderate weight at best. (citations omitted.) 14 The Tribunal concluded that the other three primary considerations, namely protection of the Australian community, whether the Applicant's conduct amounted to family violence and the expectations of the Australian community, weighed substantially against revocation of the mandatory cancellation. 15 Ultimately, the Tribunal concluded as follows: [199] Having weighed all relevant considerations individually and cumulatively, the Tribunal finds there is not another reason why the decision to cancel the Applicant's visa should be revoked. That is because three of the primary considerations in this matter weigh substantially against revocation. These considerably outweigh the combined weight given to the primary consideration Best interests of children, which weighs moderately in favour of revocation, and the other countervailing considerations, which each carry slight weight. 16 On that basis, the Tribunal affirmed the delegate's decision not to revoke the cancellation of the Applicant's visa.

The first ground of review: the best interests of minor children 23 By his first ground of review, the Applicant contends that the Tribunal's decision was affected by jurisdictional error because it failed to perform its statutory task. More specifically, the Applicant contends that the Tribunal failed to make "necessary and essential findings of fact" in relation to five matters relating to the best interests of minor children. 24 The best interests of minor children is a primary consideration under Direction 90. The Applicant submitted that the significance of the factor recognises the "special vulnerability of children, particularly where the break-up of the family unit is, or may be, involved" (Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273 at 304 (Gaudron J)) and the truism that "[even] a person guilty of serious criminal conduct may be a loving parent'" (Minister for Immigration & Multicultural & Indigenous Affairs v Lorenzo [2005] FCAFC 13 at [88] (Wilcox, Sackville & Finn JJ)). The significance of the factor also reflects Art 3(1) of the United Nations Convention on the Rights of the Child ("In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration"). The Applicant submitted that it followed that it is a fundamental human right for a child to have a meaningful relationship with and be cared for by both parents. 25 As the Tribunal recorded at [137] of its reasons, in considering the best interests of the child, Direction 90 requires the following factors at cl 8.3(4) to be considered where relevant: (a) the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact); (b) the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements; (c) the impact of the non-citizen's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child; (d) 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; (e) whether there are other persons who already fulfil a parental role in relation to the child; (f) any known views of the child (with those views being given due weight in accordance with the age and maturity of the child); (g) evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally; (h) evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct. 26 The Applicant submitted that the factors in cl 8.3(4) were required to be considered in light of the universal human rights framework as to the importance of a meaningful relationship between parent and child for their care, welfare and development. The Applicant also sought to draw a parallel between the cl 8.3(4) factors and the Family Law Act 1975 (Cth), submitting there was a "clear overlap between the factors in cl 8.3(4) with key provisions of Part VII of the Family Law Act". It was submitted that it followed that in considering the factors, the Tribunal was required to make necessary factual findings that contemplate the nature of parental responsibility, current and future custodial arrangements, and what is in a child's best interests as to their future care, welfare and development. 27 The Applicant submitted that the Tribunal failed to make the necessary findings as to whether non-revocation is or is not in the best interests of the child by reference to the specific factors enumerated in cl 8.3(4) and in particular, it could not be said that the Tribunal made necessary findings as to each of the matters in cls 8.3(4)(a), 8.3(4)(d), 8.3(4)(f) and/or 8.3(4)(h). The Applicant submitted that there was evidence of a meaningful relationship between the Applicant and his son and of a "quite deleterious impact from the continuing absence of their contact". In light of that evidence, it could not be said that the specific factors in cl 8.3(4) had been properly addressed. The Applicant submitted: A useful example is the complete absence of any findings necessitated by the inquiry in cl 8.3(4)(h) - where is the finding about how the separation of the child from his father has (or may have) impacted upon him because of the Applicant's offending conduct? Or as to cl 8.3(4)(e)-(f), as to the actual or potential deterioration of Ms K and the child's relationship because of how the child perceived her to be limiting the Applicant's contact with him, as was so clearly flagged by Ms K in her evidence? Where is the finding, for the purposes of cl 8.3(4)(b), as to the value in the Applicant having supervised, then gradual, contact with his son, in the alternative to the Applicant's proposal of greater contact on weekends and public holidays? Relatedly, why was it 'inevitable' that there would be 'infrequent' contact between the Applicant and the child, and more importantly, what of the effect of that limited form of contact in Australia as opposed to the unworkability of any continuing relationship between them upon removal to India, as Ms K explained in her evidence? … [T]he Tribunal concluded 'with some trepidation' that the Applicant is 'likely to play a positive parental role in the child's life', without identifying with any real clarity the potential and likely scope of that positive parental role, or what the child's interests as to that positive parental role would and could entail based on the available evidence… 28 The Applicant's submissions that the Tribunal failed to consider the factors in cl 8.3(4) are not accepted. 29 A failure to comply with Direction 90 may amount to jurisdictional error: VKTT v Minister for Home Affairs [2019] FCA 1018 at [19] (Burley J) (in the context of a predecessor direction). The direction requires the matters in cl 8.3(4) to be considered "where relevant". A requirement to consider a matter involves a decision-maker bringing their mind to bear on that matter: Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 400 ALR 417 at [24]. The degree of consideration which is necessary will depend on the context and the materials and evidence before the Tribunal. 30 The factors identified in cl 8.3(4) for consideration are only mandatory "where relevant". It is for the Tribunal to form an opinion about the relevance or otherwise of each factor. It is not necessary for the Tribunal to expressly state that it has found a particular factor to be irrelevant. As Jackson J said in Meyrick v Minister for Home Affairs [2020] FCA 677 at [98]: …Section 43(2B) [of the AAT Act] entitles the court to infer that any matter not mentioned in the Tribunal's reasons was considered by the Tribunal not to be material: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [69] (McHugh, Gummow and Hayne JJ), a case about s 430 of the Migration Act, but s 43(2B) of the Administrative Appeals Tribunal Act is not materially different. 31 The Tribunal is not required to make actual findings of fact in order to have considered a matter: Plaintiff M1 at [24]. Much will depend on the circumstances of the particular case and the nature of the material and evidence before the Tribunal. It may also be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593 at [47]. 32 In the present case, the Tribunal's reasons demonstrate that the Tribunal considered each of the factors in cl 8.3(4), including cls 8.3(4)(a), 8.3(4)(d), 8.3(4)(f) and/or 8.3(4)(h): (a) The findings on the nature and duration of the relationship between the Applicant and his son (factor cl 8.3(4)(a)) include that the relationship was close and loving but that there had been long periods of absence and limited meaningful contact between the Applicant and his son: Tribunal Reasons [145], [148]. (b) The Tribunal's consideration of the likely effect that separation from the Applicant would have on the child (factor cl 8.3(4)(d)) is subsumed in the findings the Tribunal made that the Applicant had not seen his son since 2020 and the child was happy, healthy and settled, performing well at school: Tribunal Reasons [145], [139], [141]. The Tribunal considered that if the Applicant remained in Australia, given where the Applicant intended to live, he would have limited physical contact with his son and that their relationship was currently limited to letters and phone calls. (c) The Tribunal observed that there was limited direct evidence from the child (factor cl 8.3(4)(f)) and that given the age and maturity of the child, he was unlikely to be sufficiently mature to express the nature and extent of his relationship with the Applicant: Tribunal Reasons [148]. The Tribunal accepted that there was a loving relationship between the child and the Applicant. There was no suggestion by Counsel for the Applicant that the Tribunal had not considered evidence or any claim made. The Tribunal's observations were brief given the age of the child. (d) Clause 8.3(4)(h) requires the Tribunal to consider evidence that the child has suffered or experienced trauma arising from the non-citizen's conduct. The trauma to be considered is not that which might be said to arise from separation from the Applicant but from the Applicant's conduct. Although the Tribunal observed that the child was present during acts of family violence (including being asleep in the same bed as the site of the aggravated sexual assault on Ms K), the Tribunal made no findings that the child had suffered or experienced trauma as a result of that conduct because there was no evidence that he had so suffered. At the time of the Tribunal decision, the child was found by the Tribunal to be happy, healthy and settled: Tribunal Reasons [139]. 33 The Tribunal did not fail to make a necessary finding in relation to the potential and likely scope of the Applicant's positive parental role in the future. The Tribunal cannot engage in speculation but must make findings based on logically probative material before it: Minister for Immigration and Ethnic Affairs v Pochi [1980] FCA 85; (1980) 44 FLR 41 at 68 (Deane J). There was insufficient evidence before the Tribunal to enable it to make any definitive findings about the potential and likely scope of the parental role the Applicant would likely play in his son's life should the Applicant remain in Australia. As the Tribunal identified, there was no agreed future custodial arrangement or Court-approved access arrangement. The evidence before the Tribunal was that the Applicant would require on-going supervision following his release and that the Applicant intended to live some seven-hour drive away from where his son was living. Access would necessarily be limited given the child's school and sport commitments and the fact that the child suffered from car sickness. The evidence from the Applicant's psychologist was that any future parenting arrangements would need to be mediated and agreed through a third party and any disagreement between the Applicant and Ms K about those arrangements would only increase the risk of the Applicant engaging in problematic behaviours. Given that future parenting arrangements had yet to be discussed between the Applicant and Ms K, much less agreed, the Tribunal made a cautious and caveated finding in relation to the positive parental role likely to be played by the Applicant. 34 The implicit premise of the Applicant's submissions on ground 1 is that the considerations in cl 8.3(4) were to be approached on the basis that the parenting role of the Applicant was unqualifiedly positive. The law does not require that the best interests of the child be determined for the purposes of Direction 90 on that basis. There may be cases where the evidence is such that the only determination which can be made is neutral so far as the best interests of any minor child is concerned. Sometimes the best decision "about" whether cancellation is, or is not, in the best interests of the child may be that it is neither: Uelese v Minister for Immigration and Border Protection [2015] HCA 15; (2015) 256 CLR 203 at [67]. Each case is to be determined on its facts. 35 Here the facts relating to the interests of the child were more complex than the Applicant sought to paint them. The Tribunal accepted that the relationship between the Applicant and his son was loving but the Applicant had had limited meaningful contact with his son since 2017. The Applicant's difficulty is that for much of his son's young life, the Applicant has been either in prison or in immigration detention. That necessarily limits the role that he can have played in his son's life. The Applicant sought to rely upon statements made to the first Tribunal and wishes expressed by the child that his father pick him up from school or have a sleepover, neither of which would be possible if the Applicant were to remain in Australia and live a seven-hour drive away. The facts were that future parenting arrangements were yet to be discussed between the Applicant and Ms K, much less agreed. The Applicant had recidivism risks, would be subject to supervisory conditions, had unmet rehabilitation needs and there was the potential for conflict and enmity about access and custodial arrangements which could adversely affect the child. 36 The Court does not accept that ground 1 has sufficient merit to warrant the grant of an extension of time.

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