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

1. The name of the first respondent be changed to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
2. The appeal be dismissed.
3. The appellant pay the first respondent's costs, of and incidental to the appeal, to be taxed if not agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

LOGAN J: 1 On 23 January 2018 a delegate of the Minister who held the Ministerial Office then known as Minister for Home Affairs made a decision to cancel the subclass 444 special category visa held by the appellant, Mr Sheldon James Salter. The title of that particular Ministerial Office has since then changed. The office is now known as Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs. It will be necessary, the request having been made, to amend the title of the first respondent to reflect the change in the title of the Ministerial Office. 2 The source of the delegate's power to cancel Mr Salter's visa was s 116 of the Migration Act 1958 (Cth) (the Act), in particular, s 116(1)(e)(ii). That was because the delegate was satisfied that Mr Salter's presence in Australia was or might be a risk to the health or safety of an individual or individuals, in this instance, his estranged wife and their two surviving children. As was his right, Mr Salter sought the review of the Minister's delegate's decision by the Administrative Appeals Tribunal (Tribunal). On 10 September 2018, for reasons given that day, the Tribunal (Senior Member Lambie) decided to affirm the decision of the Minister's delegate to cancel Mr Salter's visa. 3 Mr Salter applied to the Federal Circuit Court for the judicial review of the Tribunal's decision. On 16 May 2019 that court (his Honour Judge Jarrett) dismissed with costs that judicial review application (Salter v Minister for Home Affairs & Anor [2019] FCCA 1298). Mr Salter has now appealed to this Court against that order of dismissal. The ground of appeal is as follows: The Federal Circuit Court of Australia erred in failing to find that the Second Respondent's failure to ask Ms Kym Allingham any direct question(s) regarding the risk, if any, posed to the appellant's children by his ongoing presence in Australia: (a) was unreasonable in the legal sense and, therefore, (b) resulted in the second respondent constructively failing to exercise its jurisdiction to review the First Respondent's decision dated 23 January 2018 cancelling the Appellant's subclass 444 visa under section 116(1)(e)(ii) of the Migration Act 1958. 4 The reference to the second respondent is a reference to the Tribunal. The Tribunal quite properly adopted the stance of a submitting appearance on the appeal. The only active party respondent is the Minister. Ms Kym Allingham, to whom reference is made in the ground of appeal, is Mr Salter's estranged wife. 5 The learned primary judge in dealing with this same issue, which was ground 2 in the grounds of review, concluded that it was not unreasonable, in the legal sense, for the Tribunal not to seek specific evidence from, materially, Ms Allingham about whether Mr Salter's ongoing presence in Australia might be a risk to the health or safety of her children or to put that proposition directly to her. In his Honour's view, the questioning of Ms Allingham by the Tribunal at the hearing was not perfunctory. His Honour also was influenced - and in point of law it is the case - by the proposition that a Tribunal is not required to put to an applicant for review, and even less any witness, its thought processes, subjective appraisals or preliminary views, referring in this regard to the High Court's judgment in SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190 at [18]. Also influential for his Honour's conclusion as to an absence of unreasonableness was that if a witness had already given evidence in relation to the issue of concern, questioning might not be considered necessary. 6 His Honour noted that Ms Allingham had given evidence about a risk of harm to her children and that her evidence extended to circumstances in which Mr Salter had found her and the children when she was staying at a refuge. Further, Mr Salter had given his own evidence on that subject and that evidence led to the Tribunal causing a summons to be issued to the Queensland Police Service for the production of material that bore on the issue. His Honour then set out an excerpt of evidence which Ms Allingham gave to the Tribunal at the hearing. His Honour did so to the end of demonstrating that Ms Allingham did, in fact, give evidence about the risk that Mr Salter posed to his children, albeit that she did not directly address that issue in terms. 7 I was taken to this evidence in the course of the hearing of the appeal. It is desirable that I set it out in the same way as did the learned primary judge, the passages from the evidence of Ms Allingham and the exchange with the Tribunal member that are set out at [53] - [54] of the reasons for judgment of the Federal Circuit Court: 53. Finally, Ms Allingham in fact gave evidence about the risk that the applicant posed to his children. Although she did not directly address that issue in terms, her evidence was, at pp.181 - 182 of the transcript (in reference to the applicant's psychotic episode): MEMBER: Yep, so how bad was that episode? MS ALLINGHAM: Um, it was, yeah it was something that I would never like to see again, but I think he was really just having, it wasn't, he wasn't aggressive or anything like that, I think he had obviously just had a lot of bottled emotions and was, yeah, he was just trying to completely wipe those feelings obviously, and he put himself in a state where he had to be hospitalised and removed from the house, and that was scary for my children to see obviously and I couldn't cope with that at the time, because I'd just had a child that had passed away with him, I was feeling the same emotions, but yeah, I had to do what I had to do and so I didn't see Sheldon for a little while, but we still remain in contact and my children still look up to him as their father obviously and, um, after spending a period of time in prison, um, I have taken the children to see him, when he was, um, in the Pinkenba Detention Centre MEMBER: Yep MS ALLINGHAM: Um, just because I didn't want them going into that environment, when he was in prison, um, because they don't cope very well with their ASD. MEMBER: Yes. MS ALLINGHAM: Yeah, I just didn't visit the prison, but it was a bit more relaxed so I took them to see him at Pinkenba and they were really happy and yeah, I'd like to work on having him back in their lives again, it's very important for them. 54. And again at pp.184 - 185 of the transcript: MEMBER: All right, now as I understand it, you are - and we spoke, I think, Ms Allingham, briefly the last time, that you're willing to consider reconciliation albeit its early days yet and you're taking it slowly, is that right? MS ALLINGHAM: Yes, there's definitely work to be done on our marriage, um, he's a wonderful father, but as far as it goes with our marriage, then it's early days. So, I'd like to see him go through some steps, um, to, you know, to get things going again and know he's got the support there of his sister and brother-in-law at the moment, but then obviously it'll be, um, his brother-in-law when Kylie passes, who are very supportive. So, they've always been very close and he's very much like I am - we don't have contact with Sheldon when he has on the occasion done the wrong thing or slipped up, but when he's on the right track and we're there to help him yeah. So, yeah, it's definitely something that I'd like to see 100%, happen in the future, is to just have our family back, the way it used to be. [emphasis by the primary judge] 8 In support of the alleged error by the primary judge, reliance was placed, as it was for that matter before his Honour, on a judgment of Griffiths J in Huynh v Minister for Immigration and Border Protection (2015) 232 FCR 497 (Huynh). In the particular circumstances of that case, Griffiths J held that where the Tribunal invited a person to give information to it, the opportunity given to that person had to be meaningful. In that case, where the credibility of a Mr Le was of central importance, his Honour's conclusion was that by failing to provide a meaningful opportunity to him to address a very particular concern which the Tribunal had about his credibility, the Tribunal's actions were unreasonable in the legal sense, which resulted in a failure on the part of the Tribunal to exercise, according to law, its function of reviewing the decision of the Minister's delegate in relation to the visa in question. 9 In particular, reference was made on behalf of Mr Salter to the following paragraphs of Griffiths J's judgment in Huynh: 101 It goes without saying that the Tribunal would not be obliged to accept the responses given by Mr Le to the matters which out to have been put to him in respect of its credibility concerns. But for the Tribunal to carry out its jurisdiction to conduct a review as contemplated by Div 5, in the particular circumstances of this case it was obliged to raise those matters with Mr Le for his comment. 102 That is not to deny that there may be cases where the Tribunal could justifiably come to the view that no point would be served by hearing the evidence of a particular witness, such as where the evidence of an applicant is so compromised that hearing oral evidence from corroborating witness could not affect the outcome (see CZBH at [58]). But that is not the case here. The Tribunal did not explain why it did not squarely put to Mr Le its specific credibility concerns. The credibility of both the appellant and Mr Le were very live issues at the time of the Tribunal's hearing. Some of those issues of concern to the Tribunal were likely to be within Mr Le's knowledge and capacity to explain. Having determined to arrange for Mr Le to give oral evidence, justice and fairness obliged the Tribunal to provide him with a meaningful opportunity to address those issues of concern. This required the Tribunal put to those issues of concern to Mr Le for comment in terms which enabled him meaningfully to respond. The Tribunal failed to do so. The perfunctory questions asked of Mr Le were such that the credibility concerns of the Tribunal, which were later to be relied upon by it, among other matters, in dismissing the review application and as outlined in [33] above, were never fairly or squarely put to Mr Le for his response. To give context to the occasion for what is found in those paragraphs it is necessary, as the Minister correctly submitted, additionally to make reference to [33] of Griffith's reasons for judgment: 33 It should be noted that notwithstanding the following matters which formed part of the Tribunal's reasons for rejecting the review application, Mr Le was asked no direct questions about them in the telephone interview: (a) the Tribunal's concern that the letters between Mr Le and the appellant were written to provide "evidence of communication" rather than being "actual meaningful communication"; (b) why Mr Le had not sent gifts to the appellant, which the Tribunal considered to be relevant to the claim that they had "a mutually committed relationship"; (c) the apparent inconsistency between Mr Le's evidence and that of his wife as to why their marriage ceremony departed from tradition; (d) the delegate's findings regarding phone calls between Mr Le and the appellant; (e) the Tribunal's concerns as to why Mr Le and the appellant did not text each other and also whether they spoke to each other for an hour a day on internet chat lines as claimed by the appellant; (f) the delegate's concerns about Mr Le's alleged lack of knowledge of his wife's life in Australia; (g) the delegate's finding that Mr Le's evidence given at his interview in Vietnam was "rehearsed"; (h) the Tribunal's view that Mr Le lacked memory about the circumstances of his marriage proposal to the appellant (particularly in circumstances where it is evident from the Department's notes of its interview with Mr Le that he was able to recall various matters relating to that event); (i) allegedly inconsistent information given by Mr Le to the delegate regarding his work as a night watchman and the time he spent with the appellant before she left Vietnam to return to Australia; and (j) the Tribunal's rejection of Mr Le's explanation in his 13 January 2014 statement that, prior to 2009, he had to do security work in his local area because he did not do military duties, as this explanation was not mentioned in his curriculum vitae. 10 On behalf of the Minister it was submitted that Huynh was not correctly decided, particularly having regard to the High Court's reasons for judgment in Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123. It was accepted on behalf of the Minister, nonetheless, that it was possible to resolve this appeal without embarking upon the question of the correctness of Huynh. That acceptance was, with respect, not misplaced. In my view, at the heart of Huynh is nothing more than a conclusion on particular facts of unreasonable conduct. 11 That is an apt note upon which to consider exactly what is entailed in a conclusion of unreasonableness on the part of the Tribunal or any other administration decision maker for that matter. Recently in Minister for Immigration and Border Protection v SZVFW (2018) 92 ALJR 713 (SZVFW), with reference to Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (Li), Kiefel CJ observed at [10] and [11]: [10] In the joint judgment in Minister for Immigration and Citizenship v Li it was explained that a decision made in the exercise of a statutory power is unreasonable in a legal sense when it lacks an evident and intelligible justification. That may be so where a decision is one which no reasonable person could have arrived at, although an inference of unreasonableness is not to be drawn only where a decision appears to be irrational. … [11] Statements such as that made in the Wednesbury case, that a decision may be regarded as unreasonable if no reasonable person could have made it, may not provide the means by which a conclusion of unreasonableness may be arrived at in every case. But it serves to highlight the fact that the test for unreasonableness is necessarily stringent. And that is because the courts will not lightly interfere with the exercise of a statutory power involving an area of discretion. The question is where that area lies. [footnote references omitted] 12 In SZVFW at [59], with reference to a judgment delivered by the Full Court in Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1, Gageler J stated: [59] References in Stretton to a conclusion that a decision is legally unreasonable being "evaluative" and to the task being "not definitional, but one of characterisation" were usefully directed to emphasising that determination of whether a purported exercise of a statutory power is so unreasonable that no reasonable repository of the power could have so exercised the power is informed not only by "the terms, scope and policy of the statute" but also by "fundamental values" anchored in the common law tradition. Reasonableness is itself a traditional conception of the common law - a translation of "the human into the legal". Reasonableness is not exhausted by rationality; it is inherently sensitive to context; it cannot be reduced to a formulary. In the discernment of unreasonableness, "[t]here are no talismanic words that can avoid the process of judgment". [footnote references omitted] 13 Of particular interest and importance for present purposes is Gageler J's observation that unreasonableness is inherently sensitive to context. At the heart of Mr Salter's challenge, as well as the Minister's riposte to that challenge, was context. 14 In terms of context it is first necessary to recall that Mr Salter was, by a letter from the Tribunal to him of 13 April 2018, given notice of the hearing to be conducted on 23 April 2018. The notice also requested of him: That any additional documents or information that you may wish to rely on during the hearing be provided to us by 22 April 2018. 15 It is apparent from the appeal record that Mr Salter's solicitor, moved with considerable despatch and, with respect, competency to assemble, within the time between 13 April and the date of hearing, material for the Tribunal's consideration. Notably, that material included statements from Ms Allingham, as well as others. There was also a comprehensive set of written submissions prepared, in which, materially, it was stated, at [15]: We have been advised that Ms Allingham and another are required to attend work on 23 April 2017, however: (a) … (b) Ms Allingham will be available to give evidence by telephone from 12:30 pm to 1:00 pm. 16 The Tribunal acted upon that statement as to Ms Allingham's availability and called her, as well as another witness, to give oral evidence. There was some debate before me as to whether or not in so doing the Tribunal should be regarded as having acted responsively to a request under s 361 of the Act. That section prescribes particular time limits, and it must be said that the written submissions received by the Tribunal on the Saturday preceding the hearing fell outside that time limit. In the end, though, it does not matter whether the Tribunal was acting in response to a request under s 361. What truly matters is that the Tribunal took up the reference to the availability of Ms Allingham and chose to call her to give evidence. It was common ground that the Tribunal acted lawfully in so doing. 17 It may be that the source of statutory authority to obtain oral evidence from Ms Allingham is to be found in s 359 of the Act, it may be that it is found in s 363 of the Act or it may be that it is found in each of those sections. It just does not matter. It was lawful. There was some reference in the course of submissions to AYX17 v Minister for Immigration and Border Protection [2018] FCAFC 103. That case by analogy does offer some support for a view that the source of power was to be found in s 363, but truly it might alternatively be that section in conjunction with s 359. 18 The point of it all is that, having made the decision to call Ms Allingham, the question is whether, in the circumstances prevailing, the Tribunal acted unreasonably in failing to ask of her questions of the kind described in the ground of appeal? Looking at Ms Allingham's evidence given at the hearing as a whole, it seems to me that the Tribunal member adopted a practise of attentive listening. By that I mean that the senior member did not seek to cross-examine Ms Allingham on the written statements which had been provided to the Tribunal, but rather guided her to particular subjects, leaving her to give her own account on what can only be regarded as the most sensitive and delicate of interpersonal subjects in a relationship. Ms Allingham in turn expanded on those subjects, guided, as I have said, by the Tribunal. 19 The Tribunal was not determining the review in a vacuum. In Jebb v Repatriation Commission (1988) 80 ALR 329, Davies J noted that administrative decision making bodies operate on a continuum. That observation has recently been taking up in the High Court in Frugtniet v Australian Securities and Investments Commission (2019) 93 ALJR 629 at [53], per Bel, Gageler Gordon and Edelman JJ. The point is that issues that come to be identified for the purposes of an administrative review are not confined to those which were at large before a primary decision maker. Others may emerge in the course of the hearing of a review. In this case, though, regard to the Minister's delegate's record of decision discloses that it was always an issue in the proceeding, administratively, as to a risk that Mr Salter might in the future present not just to his estranged wife, but also to their children. 20 Notwithstanding difficulties which, I was informed by Mr McComber, can attend a solicitor in practice in approaching for the purpose of securing evidence from an estranged spouse by the Domestic and Family Violence Protection Act 2012 (Qld) and even though there was not a then subsisting order in relation to Ms Allingham, the fact is that Mr Salter, through the diligence of his solicitor as well as through the sympathetic consideration, of Ms Allingham, was able to obtain a statement from her prior to the hearing and, in turn, to have her give oral evidence. 21 At the Tribunal hearing Mr Salter was represented by a migration agent rather than his solicitor. It was, though, always open to Mr Salter's representative at the hearing to suggest to the Tribunal, having regard to the preparation of Mr Salter's case, additional lines of inquiry that might be pursued with Ms Allingham. For whatever reason, the lines of inquiry, of which the failure to pursue are now said to constitute unreasonable conduct on the part of the Tribunal, were not put to the Tribunal at the hearing. It is to be remembered, and the senior member confessed as much at the start of the hearing, that he had had - and this is no criticism of him, only limited time within which, prior to the start of the hearing, to peruse the materials which had been lodged. 22 In turn, it is evident that the timeframe, using the notice of hearing as a reference base, within which to assemble materials was limited. So it is only to be expected that they were lodged when they were. It is, though, to stretch a very long bow indeed, to regard what occurred on the day of the hearing as unreasonable conduct on the part of the Tribunal. It is to be remembered that the core function of the Tribunal is that of review, not inquisition: see SZIAI, at [18]. Earlier references in cases to the Tribunal's inquisitorial function are to be understood as delimiting the nature of the Tribunal's functions. 23 If the Tribunal fails to make an obvious inquiry about a matter readily ascertained then it might be said that it has failed to discharge its core function of review; SZIAI also stands for that proposition. There is nothing novel about that proposition. It was broached in, with respect, a somewhat tentative way, as a source of jurisdictional error, by Wilcox J, in Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 (Prasad). Also, prior to SZIAI and after Prasad, a Full Court of this Court, in Minister for Immigration and Ethnic Affairs v Singh (1997) 74 FCR 553, allowed that while there was no general rule that a Tribunal was under a duty to make inquiries, particular circumstances might arise such that in order to discharge its review function the Tribunal was obliged to make inquiries. 24 In this instance Mr Salter's extensive criminal record was before the Tribunal. The Tribunal had the benefit of explanations both by Ms Allingham as well as another, which were doubtless of assistance in putting in context, and putting in a mitigating context, some of Mr Salter's behaviours in the past, but it cannot be said that in advance of the hearing there was just no issue, at all, concerning a risk that in light of past behaviours he might present either to Ms Allingham or another former de facto or the children which he and Ms Allingham had had, who survived. It is necessary to say "survived" because Mr Salter and Ms Allingham have had the dreadful experience of a child dying in infancy. In addition - and this also was a mitigating factor taken into account by the Tribunal - if that were burden not enough, Mr Salter has also had the dreadful experience of a sibling dying, too young one might think, from cancer. 25 In my view, the learned primary judge was correct in concluding that the Tribunal's failure to ask questions of the kind alleged was not in error. There is only one conclusion as to unreasonableness which is ever open. The judgment of the High Court in SZVFW stands for as much. That is not to say that there is not an evaluative process involved, but unless the only conclusion reached is that the decision was unreasonable in the sense described in Li and SZVFW, the decision itself is not unreasonable. By that I mean it is not sufficient for it to be possible in hindsight to identify particular subjects which might gainfully have been pursued if the Tribunal had pursued them. 26 It would be necessary for me to conclude that in failing to conclude that the subjects had to be pursued in order for there to be a reasonable administrative decision characterised by a reasonable approach to questioning of a witness called by the Tribunal the learned primary judge had fallen into error by concluding that the questioning was reasonable. The case is a long way short of that, in my view. 27 It is particularly a long way short of that when one regards, as one must, the context of an issue which was at large from the moment of primary decision making, an estranged spouse who was not unsympathetic to Mr Salter's predicament and who gave statements voluntarily as well as giving oral evidence fulsomely, a Tribunal which was but recently seized with a wealth of material, a represented applicant, a narrow window of time within which to receive oral evidence and an absence of suggestion of any additional lines of inquiry at the hearing. All of these are relevant to context. 28 Further, the subject was always one of delicacy - and, as I have said, it seems to me, with respect, that the learned senior member approached the reception of Ms Allingham's evidence by attentive listening. Surely an apt way, in this type of case, of drawing out, as best one could, from an affected person, particular circumstances relevant to the evaluative judgment with the making of which the Tribunal was faced. 29 I have no doubt, at all, that Mr Salter feels deeply the sense of separation that the Tribunal's decision will entail, if upheld, and through that feels that the impact on him, and even more so his children, was not given due weight. In that sense, of course, it is possible for some to use the adjective "unreasonable" in relation to the Tribunal's decision, but that is not the sense in which "unreasonable" is used in law. 30 The Tribunal's reasons are certainly compressed, but they are, with respect, none the worse for that. The operative paragraph is [22]: 22. I have given very careful consideration to the affect any cancellation may have on the best interests of Mr Salter's children and, in particular, have had regard to the evidence of his mother and partner. I acknowledge that, in the absence of family violence, it is usually in the best interests of children to have access to the care and support of both parents. In this case, I must have regard to the proviso and to the significant domestic violence history. On balance, I find that Mr Salter's continued presence in Australia poses risks to the children and their mother that outweigh the benefits that might accrue from his contribution to their welfare. It is quite apparent from this that the senior member has truly agonised about where the balance was to be struck as between interests of children and a risk which on the material before him he quite properly identified. This is just one of those awful cases in which a Tribunal member had to reach an evaluative judgment and did so for reasons that are quite rationally explained. 31 In these circumstances there is no error of the kind of which complaint is made in the ground of appeal by the learned primary judge. Indeed, one way of disposing of the appeal would have been to have recorded that the appeal had to be dismissed for the reasons given by the learned primary judge, but so doing would not have done justice to the argument carefully developed on Mr Salter's part by his solicitor, Mr McComber or, for that matter, to the response to that on behalf of the Minister. 32 It therefore only comes to this. For the reasons which I have given, the appeal must be dismissed. I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan.