Particulars 1(b) and (c) - "Impact on victims" and the applicant's family
53 The next aspect of the applicant's first ground of review was the contention that the Tribunal misconstrued paragraph 14.4(1) of Direction No. 65, or otherwise failed to have regard to the evidence and submissions provided by, or on behalf of the applicant, or the Tribunal's own findings, as to the negative impact of non-revocation on the applicant's family.
54 Paragraph 14(1) of Direction No. 65 directs a decision-maker under s 501CA(4) to take into account various "other considerations", including the "[i]impact on victims". Paragraph 14.4(1) of Direction No. 65 informs the nature of this consideration:
14.4 Impact on victims
(1) Impact of a decision not to revoke on members of the Australian community, including victims of the non-citizen's criminal behaviour, and the family members of the victim or victims where that information is available and the non-citizen being considered for revocation has been afforded procedural fairness.
55 The Tribunal analysed the relevance of this consideration in [155]-[156] of its reasons:
Impact on victims
155. There was evidence contained in police reports of the impact of the Applicant's violent behaviour, particularly on his wife Ms S and Ms Z. The physical injuries and psychological effects suffered by both women were significant. In sentencing the Applicant in December 2004, the court noted that the victim of the assault by the Applicant in that case had, in addition to significant physical injuries, also been required to visit a psychologist on 20 occasions to deal with symptoms of anxiety and depression, panic attacks, hypervigilance and difficulty sleeping and breathing.
156. The Tribunal gives this consideration significant weight against revocation.
(Citations omitted.)
56 As counsel for the Minister conceded, the emphasis of the Tribunal's consideration of the "impact on victims" in [155] of its reasons does not directly align with the wording of paragraph 14.4(1) of Direction No. 65. That paragraph required the Tribunal to consider the impact on the victims of a decision not to revoke the applicant's visa cancellation. However, the Tribunal instead outlined the impact on the victims of the applicant's offending.
57 If the Court were to consider these passages in isolation, without regard to the balance of Direction No. 65, and without regard to the balance of the Tribunal's reasons, these matters may be sufficient to evidence a misconstruction of paragraph 14.4(1) of Direction No. 65 by the Tribunal. However, that is not the manner in which this Court should construe Direction No. 65, nor the Tribunal's reasons.
58 As a starting point, it may be accepted that a decision-maker to which Direction No. 65 relates - in this case, the Tribunal - is required to comply with the terms of that direction: s 499(2A) of the Act; BQL15 v Minister for Immigration and Border Protection [2018] FCAFC 104 at [9] per Collier, Flick and Perry JJ. But Direction No. 65 must not supplant the ultimate statutory task: see s 499(2) of the Act. The ultimate question for the Tribunal in this case was whether it was satisfied that there was another reason why the original decision to cancel the visa should be revoked.
59 Moreover, although Direction No. 65 non-exhaustively prescribes certain considerations to which the decision-maker must have regard, there is no requirement for the decision-maker's reasons to religiously adhere to the structure of those considerations as set out in that instrument. What matters is whether the decision-maker complied with its statutory obligation to consider those matters, to the extent they are not inconsistent with the Act or relevant regulations, in reaching its decision, not whether the structure of the decision-maker's reasons aligned with the structure of Direction No. 65.
60 Relatedly, the fact that such a decision-maker does not refer to a consideration prescribed by Direction No. 65 in the precise compartmentalised sequence of headings set out in that instrument is not determinative of whether the decision-maker has lawfully considered, construed and applied that consideration. Although it will frequently be convenient, and indeed desirable, for the decision-maker's reasons to reflect the headings and sub-headings in Direction No. 65, the failure to consider a relevant matter under its allotted heading is not fatal to the valid exercise of the decision-maker's jurisdiction. The question whether the decision-maker has lawfully considered, construed and applied such a consideration is a matter to be inferred from the decision-maker's reasons as a whole. The existence and content of headings in the decision-maker's reasons will be relevant, but they will not be determinative.
61 On the basis of these principles, my view is that, for the following reasons, the Tribunal's reasons - and in particular [155] - do not evidence jurisdictional error by the Tribunal in the manner contended by the applicant.
62 First, consideration by the Tribunal of the impact of offending on victims cannot be said to be irrelevant for the purposes of the balancing exercise under s 501CA(4)(b)(ii). There is nothing in the subject-matter, scope and purpose of this provision, and the Act as a whole, that would prohibit consideration of the impact of a non-citizen's offending on victims: see Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24 at 40 per Mason J. On the contrary, the impact of a non-citizen's offending while holding an Australian visa is a matter that would naturally be expected to be considered in the course of a decision whether or not to revoke a visa cancellation. Indeed, to refer back to Direction No. 65, such a consideration is at least implicitly relevant to determining the nature and seriousness of the non-citizen's past conduct, being a primary consideration under that instrument. Or, alternatively, the consideration of the impact on victims may fall within the "other considerations" to which a decision-maker must have regard, which, according to paragraph 14(1) of Direction No. 65, are non-exhaustive.
63 Second, although the Tribunal did not consider the impact of a decision not to revoke the applicant's visa cancellation on the victims of his offending under the hearing "Impact on victims", the Tribunal did consider these matters elsewhere in its reasons. In this regard, it must be recalled that the applicant's wife was one of the victims of the applicant's offending. The applicant's daughters had also witnessed this violent offending. It is clear from various aspects of the AAT Reasons that the Tribunal did have regard to the impact of a decision not to revoke on these family members.
64 At [101]-[107] of the AAT Reasons, the Tribunal made various findings of fact about the relationships between the applicant and his family. Although the Tribunal did not specifically address here the impact of a decision not to revoke on the family members, the Tribunal found, relevantly, that "the family genuinely support the Applicant and that they will do their best to support him if he is released into the community". The Tribunal moreover noted that the applicant's wife "would accept the Applicant into her home to live with her and her daughters if he is released" and that the applicant's daughters "said they had a close relationship with the Applicant and kept up regular contact notwithstanding his incarceration".
65 Subsequently, at [134], under the heading "Expectations of the Australian Community", the Tribunal accepted that "fair-minded Australians would also be sympathetic to the position of the Applicant's daughters and other members of his family".
66 Then, at [157], under the heading "Impact on family members", the Tribunal expressed the following:
Impact on family members
157. The interests of family are not a primary consideration under the Direction. However, the Tribunal accepts that a refusal to revoke the cancellation of the Applicant's visa would be disadvantageous for the Applicant's wife Ms S, his four adult children, his parents and siblings and other members of his family. The Tribunal gives this consideration some weight in favour of revocation.
67 This passage, although falling under a different heading, clearly corresponds to the form of consideration to which paragraph 14.4(1) - under the heading "Impact on victims" - is directed. It just happens that in this case some of the primary victims of the applicant's offending were his own family.
68 Similar circumstances were considered by Tracey J in Hodgson v Minister for Immigration and Border Protection [2017] FCA 1141 (Hodgson). The fourth ground of review advanced by the applicant in that case, Mr Hodgson, was that the decision-maker in that case, the Assistant Minister, had failed to have regard to government policy - in the form of Direction No. 65 - in refusing to revoke a visa cancellation. Tracey J held that it was unnecessary to determine the ground in the form advanced by the applicant because his Honour was of the view that "the Assistant Minister did have regard to the matters referred to in Clause 14.4 [of Direction No. 65] to the extent to which they were relied on by Mr Hodgson and even though the Assistant Minister did not expressly refer to that part of Direction [No.] 65 in his reasons" (emphasis added): ibid at [36]. Tracey J continued as follows at [40]:
In his reasons the Assistant Minister had regard to the adverse impact which the deportation of Mr Hodgson would have on his family and friends in the Australian community. At [77] of his reasons, the Assistant Minister summarised these considerations as "the hardship Mr Hodgson, his family and social networks will endure in the event the original decision is not revoked." Mr Hodgson's partner was a victim of his criminal behaviour. The others whom he claimed would suffer, were he to be deported, were members of the Australian community. The impact of an adverse decision on these people was a matter which the Assistant Minister was entitled to and did consider. This was a relevant matter under Clause 14.4 and other provisions of Direction 65. …
(Emphasis added.)
69 Accordingly, even though the Assistant Minister in Hodgson did not expressly refer to paragraph 14.4 of Direction No. 65 or the "impact on victims", the Assistant Minister had, in the view of Tracey J, nonetheless considered that factor in the course of contemplating the impact of non-revocation on Mr Hodgson's partner, who, like Ms S in this case, was also a victim of the applicant's criminal behaviour.
70 Returning to this case, and to conclude, my view is that the manner in which the Tribunal addressed the applicant's representations, although not perfectly aligning with the structured dictates of Direction No. 65, did not impugn the valid exercise of the Tribunal's jurisdiction. Having read the reasons of the Tribunal as a whole, it cannot be concluded that the Tribunal failed to comply with Direction No. 65 as alleged. Although [155] of the AAT Reasons, considered in isolation, displays a misconstruction of paragraph 14.4(1) of Direction No. 65, when the balance of the Tribunal's reasons are properly examined, my view is that the validity of the Tribunal's exercise of jurisdiction was not affected by that misconstruction.
71 For these reasons, the first ground of review raised by the applicant must be dismissed.